CHICAGO — A state appeals panel has sealed off a lawsuit that alleged former Chicago Ald. Proco Joe Moreno illegally targeted a building owner for political retribution after he evicted a popular concert venue.
Brian Strauss owned and operated 1572 N. Milwaukee Ave., where Double Door Liquors was a tenant before it was evicted. After the nightclub closed, the city enacted a zoning ordinance changing allowable use for the property. After a federal judge dismissed Strauss’ civil rights lawsuit and remanded the state law claims, Cook County Judge David Atkins dismissed Strauss’ challenge to the zoning ordinance and Moreno’s conduct.
Strauss appealed to the Illinois First District Appellate Court, arguing his complaint sufficiently alleged the zoning ordinance violated his state law due process and equal protection rights as well as a claim for inverse condemnation, and that the tort claims aren’t barred by the Local Governmental and Governmental Employees Tort Immunity Act.
Former Chicago Ald. Proco Joe Moreno
Justice Maureen Connors wrote the panel’s opinion, issued March 5. Justices Sheldon Harris and Sharon Johnson concurred.
Although the panel agreed with the city’s concerns about whether Strauss filed his complaint as an individual or as a representative of the corporation that owned the building, it affirmed Atkins’ dismissal on other grounds.
The panel said the question is whether the city had a legitimate interest in changing the zoning and pointed to Strauss’ complaint in which he described his problems with Double Door: noise complaints, patron’s illicit substance use and property damage.
“A more restrictive zoning classification could be an attempt to prevent those problems from recurring,” Connors wrote. Although Strauss alleged “Moreno was the driving force behind the zoning ordinance,” that doesn’t preclude new restrictions having broad public benefit.
Strauss’ complaint alleged Moreno tried to broker a sale of the building to Double Door or compel Strauss to undo the eviction by threatening to engage in an expensive, drawn-out zoning process that could leave the building empty for at least three years. Strauss further said Moreno had a pending amendment to make zoning more restrictive, which cost him both tenants willing to pay market rate and submarined a $9.6 million sale contract.
Although Strauss alleged Moreno’s conduct, and the fact the zoning change would apply only to his building, were enough evidence to support his equal protection claims, the panel said if a zoning “classification has some reasonable basis, it passes constitutional muster even though in practice it results in some inequality.” Furthermore, Connors wrote, the notion “Moreno allegedly advocated for the zoning change out of revenge does not mean that the zoning committee and city council endorsed those motives.”
The panel further rejected the argument that zoning changes constituted an illegal taking of property by affecting the building’s value, noting a 1980 U.S. Supreme Court opinion in Agins v. City of Tiburon, which established municipal planning done in good faith doesn’t warrant compensation.
Though Strauss alleged his business was damaged, the panel said, he didn’t allege an inability to lease the space to a tenant that didn’t require the same zoning as Double Door, or that he couldn’t find someone willing to pay less than his desired $35,000 per month. He ultimately sold the building for $9.1 million, but diminished market value doesn’t constitute an improper taking.
Turning to tort immunity, Strauss argued his complaint included allegations regarding zoning proposals the council didn’t adopt, and that the city failed to show Moreno “either made a policy determination or exercised discretion when he arranged private meetings to convince buyers to back out of purchase contracts and when he physically confronted plaintiff to make a series of threats,” according to Connors.
However, the panel found Moreno acted within the color of his role as an alderman by balancing the interests of his constituents against a property owner. That Moreno “may have acted corruptly or maliciously does not change” his immunity from litigation as a public official because he was allowed to determine policy and exercise professional discretion.
Moreno was ousted from the City Council by voters in 2019, when he was defeated by current Ward 1 Ald. Joseph La Spata.
After losing the election, Moreno was charged with insurance fraud and obstruction of justice, for allegedly reporting his car stolen, when he had allegedly allowed a woman he was dating to drive away with it the night before.
Earlier this year, Moreno spent a week in the Cook County Jail in January on drunken driving charges stemming from an incident that occurred while we was out on bond for those other charges.
Strauss has been represented by attorney James P. McKay Jr., of Chicago.