Preservation alarms are ringing at the specter of Chicago’s architectural patrimony—Louis Sullivan, Mies van der Rohe, Frank Lloyd Wright—being pummeled by the wrecking ball in the wake of a court challenge that has raised constitutional questions about the city’s 41-year-old landmarks ordinance.
On March 11, attorneys for the city asked the Illinois Supreme Court to review a lower court’s ruling that blindsided preservation advocates by deeming the Chicago ordinance so rife with “vague, ambiguous, and overly broad” language that it may violate due process and equal protection rights. Meanwhile, preservation agencies around the nation have scrambled to file briefs in support of Chicago’s landmarks law, which if invalidated would not only threaten more than 9,000 protected properties in the city, but embolden challenges to ordinances around the country—including those in New York, Boston, Pittsburgh, and Seattle—that mirror the law in Chicago.
“If the precedent is set in Illinois,” said Jonathan Fine, executive director of Preservation Chicago, “it could open the floodgates for the loss of preservation ordinances throughout the country.”
The case originates not in the nuances of pediments and porches but in what the plaintiffs contend is the flagrant abuse of the landmark process to make an end-run around zoning rules. The complaint was first brought by residents of two landmark districts: the Arlington-Deming District in the affluent Lincoln Park area, a collection of 1890s mansions and Second Empire–style houses; and the East Village District, comprised of working-class streetscapes dating to the late 1800s. Both neighborhoods had been subject to out-of-context new development, and in both cases, local aldermen had moved to downzone the areas to preserve neighborhood character.
In their complaint, Albert Hanna, a longtime Lincoln Park resident and land-use critic, and Carol Mrowka, a real estate agent, argued that these landmark districts were created only after downzoning attempts were separately thwarted. (The Arlington-Deming rezone was scotched following a successful court challenge by Hanna.)
“Landmarking was a complete afterthought,” said Thomas Ramsdell, an attorney for the plaintiffs. “What happened here is that when two zoning measures failed, two different aldermen, using the exact same criteria, simply said: Let’s landmark the area.” The result, Ramsdell argued, were districts cobbled together from a hodge-podge of buildings that had no coherence as landmark districts. A trial court didn’t buy those arguments, however, and dismissed the case in 2006.
But on January 30, an appellate court sided with the plaintiffs, finding that the seven criteria used to evaluate Chicago landmarks are unconstitutionally vague.
In its decision, a three-judge panel said the criteria—which use wording such as “significant” or “unique” to describe potential landmarks—could apply to virtually any property in the city. Moreover, the court rejected the city’s argument that landmarks commission members were experts well-versed in such terms, and further found that qualifications for commission members were untenably vague. With that, the case was remanded to the trial court for further proceedings.
For the time being, at least, the city’s landmarks law remains in full effect. Whether or not the state’s supreme court weighs in—a decision is expected by June—a final ruling may not come for at least a year. And given the considerable case law on the matter, some experts see the Illinois ruling as an “oddball decision” that is likely to be reversed.
“What we’re looking at here is an intermediate court decision in a state court. It doesn’t carry a lot of persuasive authority around the country,” said Julia H. Miller, special counsel for the National Trust for Historic Preservation. Indeed, a federal district court, ruling on a similar challenge to Chicago’s landmarks law in 1994, declared it consistent with the state and federal constitutions.
Regrettably, the ultimate outcome is likely to have little impact on what the plaintiffs maintained was their true target: Chicago’s dysfunctional political culture. “There is no comprehensive plan in Chicago,” Ramsdell said. “We have 50 fiefdoms—we leave land use up to the individual aldermen of the 50 wards. It looks like we’re out to undo historic preservation,” he continued. “That’s not the case. We want the city to have a strong landmarks ordinance that can’t be abused this way.”