The Illinois Supreme Court has agreed a Chicago landlord who evicted the Double Door nightclub can’t press a lawsuit accusing the city of retribution, which he said came at the insistence of former Ald. Proco “Joe” Moreno.
Brian Strauss owned the building at 1572 N. Milwaukee Ave., where Double Door Liquors was a tenant. Strauss and his corporation evicted the popular music venue — it first filed for eviction in 2015 and completed the process in February 2017 — after dealing with excessive noise, drug and alcohol use, property damage and other lease violations.
In a July 2017 lawsuit, Strauss 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.
Illinois Supreme Court Justice David Overstreet
| Illinoiscourts.gov
In August 2017 the city enacted the zoning ordinance changing allowable use for the property, “downzoning” it to a more restrictive classification.
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. In March 2021 a First District Appellate Court panel affirmed Atkins’ dismissal, which Strauss challenged before the Illinois Supreme Court.
Justice David Overstreet wrote the 5-0 opinion, issued Sept. 22, with concurrence from justices Mary Jane Theis, P. Scott Neville, Michal Burke and Robert Carter. Chief Justice Anne Burke and Justice Lisa Holder White took no part in the decision.
Before the Supreme Court, Strauss argued the city had violated his rights to substantive due process and equal protection. He also leveled tort claims of intentional infliction of emotional distress and interference with contracts and prospective economic advantage.
The court first addressed a dispute over standing, determining that although Strauss didn’t clearly specify as a plaintiff the corporation that owned the building — for which he is the only officer — the complaint makes that relationship clear and all parties were aware of the actual litigants. It further said there is no prejudice to the defendant because the case on its merits favors the city.
Overstreet further wrote that although the corporation sold the building in June 2018, “this moots some of the issues in this case but not all of them,” including whether Strauss’ claims for monetary damages could be restored.
The court said the city successfully proved it was immune from the lawsuit because Moreno’s job as an alderman gave him discretion and the power to help determine municipal policy. It likewise rejected Strauss’ argument that Moreno’s conduct exceeded the bounds of his aldermanic discretion and responsibility.
“The record reflects that Moreno was determining policy,” Overstreet wrote, “as he was required to balance competing interests between the corporation as the building owner, Strauss as the president of the corporation, Double Door as a commercial tenant in the building, neighboring businesses, residential tenants in the building and the public community and to make judgment calls as to what solutions would best serve those interests.”
He further explained other city officials resisted Moreno’s first two downzoning attempts, and he ultimately settled on a less restrictive policy, which undercuts Strauss’ allegation “the city assisted Moreno in his vindictive and irresponsible attack.” The court also rejected arguments that immunity didn’t apply because Moreno acted outside his power.
“We find Moreno’s acts constituted exercises of discretion that would not have occurred but for his position as alderman,” Overstreet wrote. “Because of his aldermanic position, Moreno was required to personally deliberate and judge whether and in what manner to execute the actions that he did. In doing so, Moreno chose to confront Strauss, meet with prospective buyers of the building and propose zoning amendments to the zoning committee. …
“That Moreno may have acted maliciously or corruptly in the process is of no consequence to the application of immunity.”
Finally, the court said it didn’t need to address whether the zoning ordinance was unconstitutional because it applied to a single property and agreed Strauss’ claims for financial damages were properly dismissed.
Strauss was represented by attorneys Robert Robertson and Marko Duric, of the firm of Robertson Duric, of Chicago, and attorney James Patrick McKay Jr., of Chicago.
The city of Chicago was represented before the Supreme Court by attorney Suzanne M. Loose, of its Department of Law.