Challenge to Chicago landmarks ordinance cleared again to proceed; appeals court orders new judge

By Scott Holland | Jun 1, 2017

Two Chicago property owners have – again – won the chance to press ahead with their legal challenge to the city of Chicago’s designation of their neighborhoods as historical landmarks, after a state appeals panel – again – slapped down a Cook County judge’s decision to dismiss their lawsuit, and ordered a different judge to take a crack at the case.

The Illinois First District Appellate Court overturned the ruling of Cook County Circuit Court Judge Sophia H. Hall in an unpublished Rule 23 order issued May 31. Presiding Justice James G. Fitzgerald Smith wrote the opinion; Justices Terrence J. Lavin and Aurelia Pucinski concurred. The order was issued under Supreme Court Rule 23, which restricts its use as precedent, except under very limited circumstances permitted by the Supreme Court rule.

The underlying issue is a complaint Albert C. Hanna and Carol C. Mrowka filed against the city more than a decade ago. Hanna, who has property in Lincoln Park’s Arlington Deming District, and Mrowka, who owns land in the East Village District, in 2006 challenged the city’s landmark ordinance as unconstitutionally vague and ambiguous as well as a violation of due process and equal protection rights.

This is the third time the appellate panel considered the case after Hall repeatedly granted the city’s motion to dismiss the complaint.

Previously, the appeals court supported the trial court’s decisions finding the plaintiffs had failed to establish the landmark ordinance itself was unconstitutional. However, in 2013, the justices again held the lower court had erred in asserting Hanna and Mrowka had failed to provide enough to support their assertions the city had violated their rights to due process and equal protection in applying the ordinance.

Judge Hall, nonetheless, last year again dismissed the complaint, again asserting the plaintiffs shouldn’t have the right to continue their suit.

And the plaintiffs again appealed, arguing the third dismissal in 2016 contradicted the justices’ prior holding in 2013, and asking the panel to vacate and reverse Hall’s opinion and remand the case again for further proceedings.

Whereas Hall agreed the plaintiffs failed to make allegations that would “negate any conceivable basis for finding a rational relationship between the formation of the designated landmark districts and the legitimate state interest of historic preservation,” Smith countered by noting “we explained, quite clearly, that, with the interplay of the constitutional issues raised in the complaint (namely, equal protection and substantive due process), two legal standards were directly at odds: the rational basis standard on the one hand, and the motion to dismiss standard on the other.”

Smith explained the panel’s ruling came down to whether Hanna and Mrowka sufficiently alleged the landmark ordinance is arbitrary and capricious. Having reached that point in 2013, Smith wrote, the case should have proceeded to discovery and further litigation. But when the city filed its most recent motion to dismiss, it did so under provisions for judgment on the pleadings — “in direct contradiction to our holding,” Smith wrote.

“While defendant (the city of Chicago) would like to insist with all its might that a motion for judgment on the pleadings ‘is distinct from’ a motion to dismiss, this is not at all true,” Smith wrote. “Yes, some of our courts have noted a similarity between a motion for judgment on the pleadings and a motion for summary judgment, in that both are proper where a court is able to determine that there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. … But, for several reasons, this is where any similarity between the two ends.”

The city also tried to argue the appellate panel ruled incorrectly in 2013, but Smith wrote “there was no error with our holding … nor do we find any manifest injustice.

We simply declared that this cause was not yet dead at the motion to dismiss stage.”

In reversing and remanding again, the justices also called for the matter to go before a different trial judge, “in the interests of justice.”

Hanna and Mrowka are represented in the action by attorneys with the firm of Thomas J. Ramsdell & Associates, of Chicago.

City Hall is represented by corporation counsel from its Department of Law.

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