An Illinois appellate court has struck down the city of Chicago’s landmarks ordinance, saying it is unconstitutionally vague, putting in jeopardy the city’s protection of more than 250 buildings and 50 historic districts.
Judge James Fitzgerald Smith of the three person Appellate Court wrote, “We believe that the terms ‘value,’ ‘important,’ ‘significant,’ and ‘unique’ are vague, ambiguous, and overly broad”, and thus found the ordinance in violation of the state constitution.
The case involved two plaintiffs and two landmarked districts where attempts to downzone the areas failed before landmarking. However, once the case (including appeals) is over, Chicago’s entire landmarks ordinance would be completely invalidated.
Wow! I am surprised this isn’t making bigger waves in Chicago, and other cities. What should we expect to happen if appeals by The City should fail?
Would property owners rush to tear down their landmarks before The City enacts a new landmarks ordinance?
Per Tribune Architecture critic, Blair Kamin (who calls the ruling wrong-headed, but fielded some good comments):
The laws are based on a 1978 U.S. Supreme Court ruling which stopped the bankrupt Penn Central Railroad’s attempt to pile a 55-story office building atop New York City’s Beaux-Arts Grand Central Terminal. In that ruling, the court held that communities have the right to safeguard significant pieces of property, so long as they do not trample the rights of the properties’ owners.
The key word is “significant,” a word that appears frequently in Chicago’s seven criteria for landmark designation, as in the site of a significant historical event or a building that is the work of a significant architect.
It makes you wonder if there is a more robust solution to landmarks that does less to compromise the property rights of the land owners, and isn’t vulnerable to unforeseen court actions that find flaws in ordinances designed to give more power to the politicians. Perhaps, cities could achieve this through the tried and true use of contracts and easements.
I would propose some sort of easement contract with a city. If a city determines a property to have significant value to the community, the city should be willing to purchase a landmark easement from the property owner at or above market value. If the property owner does not wish to cooperate, the City should be forced to go through the eminent domain process to achieve its preservation easement.
Nonetheless, land owners should be compensated in some way for the intrusion upon their property rights based upon some peoples’ idea of ‘value,’ ‘important,’ ‘significant,’ and ‘unique’. In particular, I find the use of the word “value” peculiar. If there is value to the community, which the owner of the property does not recognize, the community should be willing to compensate the property owner for seizing that value at his expense. A property owner should not be burdened with the use restrictions and added expenses of maintaining a landmark for the benefit of the community without being compensated by the community, who wishes to impose its will upon that individual at no expense to itself.
I hope this incident makes cities re-evaluate their landmark ordinances. Particularly, I get an uneasy feeling about landmarking entire districts. Landmarking districts is a roundabout way to downzone an area, and has the unintentended consequences of banning diversity and density, sucking the potential for vibrancy from the neighborhood.
I’ll certainly keep an eye on this one…
Very interesting, I had not heard anything about this. I supported the initial landmarking of East Village in Chicago, my district, but I think the ordinance definitely needs to be refined. There is no doubt the wording is vague, obviously done on purpose to give them broader power for claiming districts. It’s a tough balance for me to strike.
I am glad that a lot of the old dumps and neglected housing have been torn down around me (along with some very nice buildings too) and replaced but at the same time I would not be too happy if my neighbors house (which mirrors mine) was torn down and replaced with a bland 5,000 sq ft 4 unit condo building.
I would say overall I am happy that they are being forced to revisit the ordinance. It needs work, but hopefully some protections will remain for those who wish to voluntarily occupy the districts or specific landmarked properties. I feel like landmarking in some ways goes against the free market and the mini-developer in me at time bristles when I find out a target property is landmarked, but if someone elects to have their property designated or to move into a district, wouldn’t it still be voluntary participation and not necesarily evil?
Very interesting, I had not heard anything about this. I supported the initial landmarking of East Village in Chicago, my district, but I think the ordinance definitely needs to be refined. There is no doubt the wording is vague, obviously done on purpose to give them broader power for claiming districts. It’s a tough balance for me to strike.
I am glad that a lot of the old dumps and neglected housing have been torn down around me (along with some very nice buildings too) and replaced but at the same time I would not be too happy if my neighbors house (which mirrors mine) was torn down and replaced with a bland 5,000 sq ft 4 unit condo building.
I would say overall I am happy that they are being forced to revisit the ordinance. It needs work, but hopefully some protections will remain for those who wish to voluntarily occupy the districts or specific landmarked properties. I feel like landmarking in some ways goes against the free market and the mini-developer in me at time bristles when I find out a target property is landmarked, but if someone elects to have their property designated or to move into a district, wouldn’t it still be voluntary participation and not necesarily evil?
This is an interesting development. Thanks for the heads up!
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Adam / Market Urbanism wrote (the added numbers are mine — BH):
Wow! I am surprised this isn’t making bigger waves in [1] Chicago, and [2] other cities.
Benjamin Hemric writes:
Regarding [1]: But then again, as you also say, there are still appeals left. So at this point in the process, they only seem to have finished the sixth (?) inning. If I remember correctly, a New York State appellate court had also decided against the validity of the NYC landmarks law protecting Grand Central Terminal — but, in the end, the NYC landmarks law was ultimately upheld by the U.S. Supreme Court (where it really mattered).
Regarding [2]: And even if the landmarks law is overturned by the top court in Illinois, it’s my understanding that unless the case makes it’s way into the Federal court system, such a decision would not necessarily have any influence in the other forty-nine states.
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If I remember the controversy correctly, in the case of Grand Central Terminal, the U.S. Supreme Court decided that the NYC landmarks law was not an unfair taking of a property’s value because the NYC landmarks law was essentially like a zoning law (which can also constitutionally diminish a property’s value for a larger public purpose). Also, if I remember correctly, the NYC law allows for the shifting and selling of zoning air rights and even allows for the economic hardship destruction of a landmark — so the value of a property is not entirely taken away from its owner, just “restricted.”
That being said, more and more it seems to me that it was a big PRACTICAL mistake for NYC to adopt this “zoning” type approach to landmarking, rather than to adopt a purchase of easements approach (like the one that you are suggesting). Using the current approach, it is too easy — and tempting — for the City to landmark buildings and districts. And as a result I think NYC is currently going overboard with landmarking. If NYC had to pay for the rights in cash, it would be more careful — and thoughtful, I think — with landmarking.
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Like you, Adam/Market Urbanism, I am also skeptical about landmark districts. I think there are a few — very few — legitimate landmark districts in NYC, where the district as a whole is what is landmark worthy and should be closely regulated. But, more and more, community groups do seem to be trying to obtain landmark district designation in order to simply preserve the status quo and prevent change — and wind-up preventing the kind of density and diversity that makes the city great.
This is an interesting development. Thanks for the heads up!
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Adam / Market Urbanism wrote (the added numbers are mine — BH):
Wow! I am surprised this isn’t making bigger waves in [1] Chicago, and [2] other cities.
Benjamin Hemric writes:
Regarding [1]: But then again, as you also say, there are still appeals left. So at this point in the process, they only seem to have finished the sixth (?) inning. If I remember correctly, a New York State appellate court had also decided against the validity of the NYC landmarks law protecting Grand Central Terminal — but, in the end, the NYC landmarks law was ultimately upheld by the U.S. Supreme Court (where it really mattered).
Regarding [2]: And even if the landmarks law is overturned by the top court in Illinois, it’s my understanding that unless the case makes it’s way into the Federal court system, such a decision would not necessarily have any influence in the other forty-nine states.
– – – – – – – – –
If I remember the controversy correctly, in the case of Grand Central Terminal, the U.S. Supreme Court decided that the NYC landmarks law was not an unfair taking of a property’s value because the NYC landmarks law was essentially like a zoning law (which can also constitutionally diminish a property’s value for a larger public purpose). Also, if I remember correctly, the NYC law allows for the shifting and selling of zoning air rights and even allows for the economic hardship destruction of a landmark — so the value of a property is not entirely taken away from its owner, just “restricted.”
That being said, more and more it seems to me that it was a big PRACTICAL mistake for NYC to adopt this “zoning” type approach to landmarking, rather than to adopt a purchase of easements approach (like the one that you are suggesting). Using the current approach, it is too easy — and tempting — for the City to landmark buildings and districts. And as a result I think NYC is currently going overboard with landmarking. If NYC had to pay for the rights in cash, it would be more careful — and thoughtful, I think — with landmarking.
– – – – – – –
Like you, Adam/Market Urbanism, I am also skeptical about landmark districts. I think there are a few — very few — legitimate landmark districts in NYC, where the district as a whole is what is landmark worthy and should be closely regulated. But, more and more, community groups do seem to be trying to obtain landmark district designation in order to simply preserve the status quo and prevent change — and wind-up preventing the kind of density and diversity that makes the city great.