1st CCM Lawsuit - December, 2008 Petition

3196-1-PJR#36351

IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS

COUNTY DEPARTMENT, CHANCERY DIVISION

MARGARET FIGIEL, JOHN FIGIEL, JANE THOMAS, RICHARD DAMASHEK, SUSAN GOLO, DUNCAN BOURNE, LESLIE LODGSON, NANCY KIMBLE, MARK KIMBLE, ERIC LENTING, GINA GUZMAN, LOBA EMAMI, VICTORIA CARTON, JOHN WIZGIRD, ANNA ANTHONY, GAYLY OPEM, ROBERT OPEM, ALLAN GOLD, JUDITH GOLDMAN, SUSAN PRICE, KIM LILLY, ARNOLD HIRSCH, ELAINE D. COTTEY, PAUL T. COTTEY, PEARL KREPES, NANCY HUNTER, CUTTIE BACON, JEFFERY J. QUACKENBUSH, and GENE NOZICKA,

Plaintiffs,

v.

THE CHICAGO PLAN COMMISSION, THE CHICAGO CHILDREN’S MUSEUM, THE CHICAGO PARK DISTRICT, a municipal corporation, THE CITY OF CHICAGO, a municipal corporation, LINDA SEARL, CHAIRMAN, ALD. WILLIAM J.P. BANKS, ALD. EDWARD M. BURKE, MAYOR RICHARD M. DALEY, DAVID WEINSTEIN, LEON D. FINNEY, JR., DORIS B. HOLLEB, LYNEIR RICHARDSON, CAROLE BROWN, SMITA SHAH, TOM BYRNE, ARNOLD L. RANDALL, GEORGE W. MIGALA, ALD. PATRICK O'CONNOR, JOHN H. NELSON, NANCY A. PACHER, ALD. MARY ANN SMITH, ALD. BERNARD L. STONE, GRACIA M. SHIFRIN, ALD. REGNER "RAY" SUAREZ, and PATRICIA SCUDIERO,

Defendants.)

No.  2008 CH 20346

PLAINTIFFS’ MEMORANDUM IN SUPPORT OF THEIR PETITION

FOR ISSUANCE OF WRIT OF CERTIORARI

NOW COME the plaintiffs, MARGARET FIGIEL, et al., by their attorneys, Litchfield Cavo, LLP, and the Law Offices of James E. Fabbrini, and in support of their Petition for Issuance of a Writ of Certiorari, state as follows:

I.INTRODUCTION

On June 5, 2008, the plaintiffs filed an action for certiorari in which they sought judicial review of the decision of the Chicago Plan Commission approving the application to construct a new Chicago Children’s Museum in Grant Park, Illinois, at the southeast corner of Randolph Street and Columbus Drive.  Named as defendants in this lawsuit are the Chicago Children’s Museum, Chicago Park District, and the City of Chicago.  Each of the defendants filed an answer and affirmative defenses and the City filed the administrative record as an additional responsive pleading.  Plaintiffs allege, among other things, that the Commission’s decision should be set aside and otherwise vacated by virtue of the failure of both the Museum and the Park District, (hereinafter referred to as “the Applicants”)  to provide notice to hundreds of property owners who owned property within 250 feet of the proposed construction, (hereinafter referred to as “the 340 plaintiffs”).  The defendants contend that proper notice was provided to all of the individuals and entities entitled to notice pursuant to Ordinance and went so far as to file a motion for judgment on the pleadings on the issue of whether they had provided appropriate notice.  On October 28, 2008, after considering the parties briefs and the oral argument presented by the parties’ counsels, this court entered an order denying defendants’ motion.  (A copy of the court’s October 28, 2008 order is attached hereto as Exhibit A).  The October 28, 2008 order also set a briefing schedule on plaintiffs’ petition for writ of certiorari. 

II.APPLICABLE LAW

The common law writ of certiorari is a general method for obtaining circuit court review of administrative actions when the act conferring power on an agency does not expressly adopt the administrative review law (735 ILCS 5/3-101 et seq.) and provides for no other form of review.  Finnerty v. Personnel Board of the City of Chicago, 303 Ill.App.3d 1, 707 N.E. 2d 600 (1st Dist. 1999).  Decisions of the Chicago Plan Commission are reviewable through a common law writ of certiorari.  (See Petersen v. Chicago Plan Commission, 302 Ill.App.3d 461, 463, 707 N.E. 2d 150 (1st Dist. 1998)). 

The standard of review for this writ and actions under the administrative review law is essentially the same:  Based solely upon the record, whether there is any evidence fairly tending to support the order reviewed and whether the order is palpably or manifestly against the weight of that evidence.  (See Finnerty).  The administrative agency’s factual findings are against the manifest weight of the evidence only when the opposite finding is clearly evident.  It is insufficient that the opposite finding is reasonable or that the reviewing court might have found differently.  Abramson v. Illinois Department of Professional Regulation, 153 Ill.2d 76, 606 N.E.2d 1111 (1992).  The purpose of a writ of certiorari is to have the entire record of an inferior tribunal brought before the court to determine, from the record, alone, that the inferior tribunal proceeded according to the applicable law.  American Federation of State, County and Municipal Employees v. The Department of Central Management Services, 288 Ill.App.3d 71, 681 N.E. 2d 998, 1004 (1st Dist. 1997).  The circuit court must ascertain whether the agency had jurisdiction, whether it proceeded according to the law and acted on the evidence, and whether there is anything in the record which fairly tends to sustain the action of the agency.  Caldbeck v. Chicago Park District, 97 Ill.App.3d 452, 423 N.E. 2d 230, 458 (1st Dist. 1981).  Likewise, the certiorari writ may be used to obtain review or to show that a court or inferior tribunal did not proceed legally; that is, where it did not follow essential procedural requirements applicable to such cases.  Hartley v. Will County Board of Review, 106 Ill.App.3d 950, 436 N.E.2d 1073, 1076 (3rd Dist. 1982). 

The Chicago Plan Commission is the agency of the City of Chicago responsible for administration of the Lakefront Protection Ordinance.  Petersen v. Chicago Plan Commission, 302 Ill.App.3d 461, 463, 707 N.E. 2d 150, 152 (1st Dist. 1998).  Section 194B-5.1 of the Chicago Municipal Code requires that all proposed physical changes within the Chicago Lakefront Protection District, including Grant Park, must be approved by the Chicago Plan Commission.  Section 16-4-100(d) of the ordinance requires the Plan Commission to conduct public hearings with respect to any proposed physical changes and further provides that members of the public are to be given the opportunity to express their opinions on any such proposals.  See Peterson v. Chicago Plan Commission, 707 N.E.2d at 153. 

Pursuant to Section 17-13-0107 and Section 16-4-100 of the Municipal Code of the City of Chicago, applicants were required to provide written notice of the application for the amendment and the request for pre-approval under the Lake Michigan and Chicago Lakefront Protection Ordinance to owners of real property within 250 feet in each direction of the lot line of the property in question prior to the hearing.

III.FACTS

There are some who would suggest that the origins of this lawsuit can be traced to the filing of Application No. 547 with the Chicago Plan Commission wherein the defendants sought the Commission’s approval to construct a Children’s Museum in Grant Park.  There are others, perhaps, who would place the starting point of this controversy at a much earlier point in time – an era historians have called the “Age of Jackson.”  The plaintiffs believe that in order for the court to have a full understanding of this controversy, a recounting of the events and circumstances which led to the establishment of the protected open space now called Grant Park would be helpful.

On March 2, 1827, the General Assembly enacted legislation which granted the State of Illinois certain lands for the purpose of financing construction of a canal connecting the waters of the Illinois River with those of Lake Michigan.  Pursuant to the terms of the legislation, the state was granted the authority to sell these lands and convey title to the purchasers in fee simple.  Pursuant to congressional authorization, the legislature for the State of Illinois enacted a statute which allowed for the appointment of commissioners to sell the lands granted to the state by the federal government.  Included among the lands to be sold, was certain property which encompasses present day Grant Park and lies between Madison Street and 12th Street.  To facilitate the sale of these properties, the commissioners created a subdivision that contained two tiers of 11 blocks each, bounded on the west by State Street, on the north by the center line of Madison Street, and on the east by Lake Michigan.  The Commissioners prepared plats or sketches which identified certain portions of this property that was to be set aside for open space.  Toward that end, the pertinent plats or sketches were marked “open grounds, no building,” or equivalent words which clearly and unequivocally stated that these lands were to be kept open and clear of buildings.  The property that lay between present day Randolph and Madison streets facing Lake Michigan was owned by the United States and was serving as a site of the Fort Dearborn military reservation.  In 1839, pursuant to the authority and mandate of the secretary of war, the property which comprised the Fort Dearborn military reservation was subdivided into blocks, lots, streets and public grounds and clerically identified as “the Fort Dearborn addition.”  A plat was recorded in connection with the Fort Dearborn addition and it identifies land sited east of Michigan Avenue, between Randolph and Madison Street, and fronting on Lake Michigan as “public ground, forever to remain vacant of buildings.”  The acknowledgement of the plat contains the following language: 

The public ground between Randolph and Madison Street and fronting on Lake Michigan is not to be occupied with buildings of any description.

In 1852, the Illinois Central Railroad Company, acting pursuant to authority granted to it by the State of Illinois and the City of Chicago, constructed a railroad trestle in Lake Michigan over submerged lands fronting the property now known as Grant Park.  On February 18, 1861, the legislature amended the public act which incorporated the City of Chicago and included in that amendment language prohibiting the Illinois Central from encroaching upon land or water west of a line not less than 400 feet east of the west line of Michigan Avenue and also prohibited the City from allowing any encroachment west of that line.  Included in the 1861 amendment was language which acknowledged and confirmed that the property now known as Grant Park would forever remain open and vacant.    

The State of Illinois, by its Canal Commissioners, having declared that public ground east of said lots should remain forever open and vacant, neither the common council of the City of Chicago nor any other authority shall ever have the power to permit encroachments thereon without the assent of all persons owning lots or land on said street or avenue. 

For the next 30 years, the prohibitions and restrictions on constructing buildings and structures within Grant Park were all but ignored.  Consequently, in 1890, A. Montgomery Ward filed the first of a series of lawsuits in which he sought to enjoin the city from violating the terms of the dedications made in connection with both the Fort Dearborn Addition and the Canal Subdivision.  Ward followed up his original filing in 1893 with an amended bill seeking a permanent injunction against the construction of buildings in Grant Park and the diversion of the park from the purposes for which it was originally dedicated.  In 1896, the Superior Court for the County of Cook entered an injunction/decree which restrained and enjoined the city from erecting or causing to be erected any buildings or structures upon the premises described below:

That tract of land lying between Randolph Street on the north, and Park Row on the south and between the west line of Michigan Avenue and the west line of the right-of-way and grounds of the Illinois Central Railroad Company excepting the Art Institute, a temporary post office until a permanent one should be completed and armory buildings, for a period of three months.

On November 8, 1897, the Illinois Supreme Court affirmed, in its entirety, the decree entered in favor of Montgomery Ward and against the city.  (See City of Chicago v. Ward, 48 N.E. 927 (1897)).  In three subsequent lawsuits, the question of whether buildings, structures could be constructed in Grant Park was adjudicated by the Supreme Court and on each occasion, the court held that there was no lawful authority that would permit the city to erect or cause to be erected any buildings or structures in Grant Park.  The court also found that no valid law authorized the condemnation of property for that purpose.  See Bliss v. Ward, 64 N.E. 705 (1902), South Park Commissioners v. Ward, 94 N.E. 910 (1910), Ward v. Field Museum, 89 N.E. 731 (1909). 

On April 1, 2008, the City of Chicago, legal title holder of the property known as Grant Park, issued a letter authorizing the Chicago Park District and the Chicago Children’s Museum (hereinafter referred to as “Applicants”) to file an Application seeking to amend Institutional/Transportation Planned Development No. 677, so as to permit construction of a “new Chicago Children’s Museum and the Chicago Park District field house.”  (R1).  On April 2, 2008, the applicants forwarded an application to the Plan Commission in which they sought approval, under the Lake Michigan and Chicago Lakefront Protection Ordinance, to construct a new Chicago Children’s Museum and Park District field house on the southeast corner of Randolph Street and Columbus Drive (See R2-R7).  The application also made vague reference to “other uses” which were not specifically identified in applicant’s submission or during the course of a hearing held on May 15, 2008.  (See R2-R7).  In response to comments received from the city planning staff and various city agencies, applicants filed a second application on May 2, 2008 (See R66-67 and R162-R184). 

Included in the application was a copy of written notice of Applicant’s intention to seek an amendment to Institutional Transportation Planned Unit Development No. 677, as well as a request for Plan Commission review under the Lake Michigan and Chicago Lakefront Protection Ordinance.  (See R218-R345).  This notice states “The undersigned has made or caused to be made a bona fide effort to determine the addresses of the parties to be notified under Section 17-13-0107 and Section 16-4-100 of the Municipal Code of the City of Chicago.”  It further states that Mr. Ted Novak or persons working under his direction had filed a list of names and addresses of surrounding property owners within 250 feet of the site of the proposed Children’s Museum.” (R218-R347).  Missing from the accompanying list of names and addresses were any individuals or entities who own property at 340 E. Randolph, Chicago, Illinois, even though the building is identified on various diagrams and schematics submitted in connection with the application.  (See R218-R347) and (R1348). 

On May 14, 2008, the museum, through its counsel, hand-delivered to Heather Gleason of the city’s Department of Planning & Development, revised drafts of the following documents:

Planned development application forms;

Map amendment ordinance;

Planned development statement;

Bulk regulations and data tables;

Planned development plan;

Lake Michigan and Chicago Lakefront Protection Ordinance.

The museum also submitted a disk with a “draft powerpoint presentation.”  (See R124-R184). 

Part 4 requires an applicant to address the potential impact of the proposal on the lakefront and the park system.  As part of the process, the applicants were required to identify any potential impact of their proposal.  Toward that end they were required to address 14 basic policies identified in the Lakefront Protection Ordinance.  (R178-R184).   Among the basic policies is Policy No. 4, which requires an applicant to discuss the potential impact of the proposal on the “cultural, historical and recreational heritage of the lakeshore parks.”  (R178).  In addition, the applicant is required to explain how the proposal will “maintain and improve the formal character and open water vista of Grant Park with no new above-ground structures permitted.”  See Policy No. 5 (R-178).  The Lakefront Protection Ordinance also identifies 13 purposes, including Purpose No. 5, which requires the Commission and the City to “Ensure that the lakefront parks and lake itself are devoted only to public purposes and to ensure the integrity of and quantity of the Lakefront Parks.”  In a similar vein, Purpose No. 2 is intended to “promote and protect the health, safety, comfort, convenience and general welfare of the people and to conserve our natural reserves.” (R182-183).

On May 15, 2008, the Plan Commission convened a hearing on applicants’ proposal to amend Planned Unit Development No. 677 as well as their application for approval of the project under the Lake Michigan and Chicago Lakefront Protection Ordinance.  (R1352).  Before the hearing actually started, Chairperson Searl identified certain guideline and ground rules which she claimed would govern the proceedings.  She stated that “the Plan Commission is here to evaluate whether this proposed project meets the standard and guidelines of the Chicago Zoning Ordinance with respect to planned developments, and whether it meets the policies and purposes of the Lake Michigan and Chicago Lakefront Protection Ordinance.”  (R1355-R1356).  She then identified certain topics which she claimed were out of bounds and did not fall within the Plan Commission’s purview to decide, including whether this project would be better suited in another location; whether this proposal satisfies the requirements of the Montgomery Ward court cases and “how this project is financed.”  (R1356).  Chairperson Searl added that the aforementioned topics were “not the Plan Commission’s to decide” and therefore “outside of the scope of the Plan Commission.”  Immediately following the Ms. Searl’s opening remarks, applicants made their presentation which was followed by a staff report prepared by the city’s Department of Planning.  (R1357-1420). 

Chairperson Searl’s ground rules notwithstanding, counsels representing the Applicants were allowed to offer argument and commentary as to whether the proposed museum violated the longstanding prohibition against placing structures in Grant Park.  As special counsel to the Chicago Park District, Mr. Jack Guthman offered his legal analysis of the proposal and stated that it was his aim of “dispelling the misunderstandings that have arisen regarding the legal principles that govern the Grant Park site.”  (R1404-1414).  Initially, Mr. Guthman claimed that the Children’s Museum would be constructed “below grade,” but later said that the “museum is proposed to be constructed entirely underground, beneath the park, not on park land, thus the Ward cases, much discussed in recent weeks, do not apply.”  (See R1405-R1407).  According to Mr. Guthman, the only element of the proposed museum to be built above ground is a “glass entrance pavilion [that] is located north of the south line of Randolph Street.”  (R1406-1407).  Mr. Guthman then presented his opinion on what he described as “the narrow question of whether the museum may charge for admission specifically in Grant Park” and contended that this limitation, which he believes was imposed by the Ward cases, “governs only activities on the park’s surface.”  Since the proposed museum would, according to Mr. Guthman, be located underground, the prohibition on charging admission would not apply.  (R1413-1414).  After Mr. Guthman concluded his remarks, Mr. Novak opined that the “proposal is legal under case law and the city ordinances, including the Lakefront Protection Ordinance.” 

Speaking on behalf of the Department of Planning & Development, Ms. Heather Gleason stated that, in her opinion, the proposal complies with the ordinance because it “will maintain and improve the character of Grant Park with extensive landscaping and will provide a pathway system linking upper Randolph Street to the rest of Grant Park.”  As for Policy No. 5, Ms. Gleason argued that the proposal is “also consistent with the rest of Statement 5 of the Lakefront Ordinance” because “the museum and new field house will be located below grade, replacing an existing below-grade field house and underground parking spaces.”  Unlike Mr. Guthman, Ms. Gleason said that the aforementioned structures would be established below grade as opposed to below ground.  (See R1415-R1417). 

During the May 15th hearing, the question of whether applicants had complied with the applicable notice provisions was raised at several points.  In response, the museum’s counsel, Mr. Ted Novak, could not affirmatively state that statutory notice had been provided to individuals or entities who owned property at 340 E. Randolph. 

After allowing for a period of public comment, the meeting was concluded and Commissioner Bernard Stone moved to approve the Application under the Chicago Lakefront and Lake Michigan Protection Ordinance and to make a “positive recommendation to the city council” in connection with the proposed Amendment to Institutional Transportation Plan Development No. 677.  (R1756).  Immediately thereafter, a vote was taken and the application was approved.  (R1765-1769).  That same day, the commission issued a resolution and recommended approval of the amendment to the Institutional Plan Development and also approved the Lakefront Protection Application.  (See R1849-R1850).  On June 5, 2008, plaintiffs filed an action for certiorari in which they requested judicial review of the commission’s May 15, 2008 resolution approving the application. 

IV.THE CHICAGO PLAN COMMISSION’S DECISION RECOMMENDING THE ADOPTION OF THE AMENDMENT TO INSTITUTIONAL/TRANSPORTATION PLANNED UNIT DEVELOPMENT NO. 677, AS WELL AS ITS FINDING THAT THE PROPOSED AMENDMENT DOES NOT VIOLATE THE CHICAGO LAKEFRONT AND LAKE MICHIGAN PROTECTION ORDINANCE, SHOULD BE REVERSED, SET ASIDE AND VACATED

A.Given the Applicants’ admitted failure to furnish notice to the the 340 E. Randolph plaintiffs, the Commission’s decision to consider and approve the museum’s application violated the U.S. Constitution, Amendment 14, and the Illinois Constitution of 1970, Article 1, Section 2. 

As this court well knows, the issue of notice has been hotly contested and the subject of extensive briefing and argument.  The plaintiffs have alleged that the notice required by Section 17 13-0107 and 16-4-100(c) was not sent to any of the property owners who own property at 340 E. Randolph.  For their part, the defendants maintain that they complied with the notice by providing notice to the last known owners of record listed in the most recent tax records.  However, at no point during the course of this litigation have the defendants identified any individual or entity who actually owns or owned property at 340 E. Randolph and was, in fact, provided with statutory notice.  While defendants claim that notice was provided to some 8,000 individuals and entities, they were and are apparently unable to identify a single individual or entity who owned property at 340 E. Randolph, was identified in the “authentic tax records,” and was, in fact, provided with notice.  This failure is, to say the least, telling and amounts to a tacit admission by the defendants.  In essence, the Plan Commission moved forward with the hearing knowing full well that they had violated the notice requirements set forth in Municipal Code Sections 17-13-0107 and 16-4-100(c). 

Precedent teaches that the due process clauses of both the United States Constitution and the Illinois Constitution protect fundamental justice and fairness.  People v. Lindsey, 199 Ill.2d 460, 472, 771 N.E. 2d 399 (2002); Lyon v. Dept. of Children & Family Services, 209 Ill.2d 264, 272, 807 N.E. 2d 423, 430 (2004).  What particular process is due is a flexible concept in that “not all situations calling for procedural safeguards call for the same kind of procedure.”  Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600 (1972); (See also Lindsey, 199 Ill.2d at 472, 771 N.E. 2d 399).  What procedure is required in a particular situation depends upon “the precise nature of a government function involved as well as the private interest that has been affected by governmental action.”  Morrissey, 408 U.S. at 481, 92 S.Ct. at 2600.  Due process principles apply to administrative proceedings.  Abrahamson v. Illinois Department of Professional Regulation, 153 Ill.2d 76, 606 N.E. 2d 1111 (1992). 

Procedural due process claims question the constitutionality of the procedures used to deny a person’s life, liberty or property.  Segers v. Industrial Commission, 191 Ill.2d 421, 732 N.E. 2d 488 (2000).  The essence of due process is to ensure parties a meaningful opportunity to present their case.  Petersen v. Plan Commission of the City of Chicago, 302 Ill.App. 3d 461, 466, 707 N.E. 2d 150 (1st Dist. 1998).  The failure to give proper notice constitutes a violation of due process.  See Miller v. Hill, 337 Ill.App.3d 210, 217, 785 N.E. 2d 532, 540 (3rd Dist. 2003).  (Failure to give proper notice constitutes a violation of due process and voids a conditional use permit granted under suspect proceedings); (See also, Grotto v. Little Friends, Inc., 104 Ill.App.3d 105, 432 N.E. 2d  634 (1982).  The issue of whether the plaintiff’s procedural due process rights are violated is reviewed under the de novo standard because it is a legal question.  People v. Hall, 198 Ill.2d 173, 177, 60 N.E. 2d 971 (2001); See also Lyon v. The Department of Children & Family Services, 209 Ill.2d at 271, 807 N.E. 2d at 430.

The Illinois courts define de novo judicial review of administrative proceedings as:

“Generally a new hearing for the second time, contemplating an entire trial in the same manner in which the matter was originally heard and a review of a previous hearing.  On a hearing “de novo” the court hears the matter as court of original and not appellate jurisdiction.”  (See City of East Moline v. Illinois Pollution Control Board, 188 Ill.App.3d 349, 544 N.E. 2d 82, 86 (3rd Dist. 1989).

The applicants’ failure to provide statutory notice to the 340 East Randolph plaintiffs was raised at several points during the course of the May 15, 2008 hearing.  At no point in the hearing did the Applicants affirmatively state that notice had, in fact, been provided to some individuals or entities whose name and address appeared on the “authentic tax records.”  When faced with their failure to comply with the statute and provide notice to any individual or entity whose name appears on the “authentic tax records” at 340 East Randolph, the museum’s counsel could only offer surmise, conjecture, and equivocation:

Mr. Novak:  I complied with all the rules and regulations with respect to notice, and so that has been supplied – that information has been supplied to the city.  And so I respect your opinion, but –

Ms. Miller:  It’s not an opinion.  People who have lived directly across the street were not notified. 

Mr. Novak:  I can’t answer –

Ms. Miller:  The entire building.

Mr. Novak:  I have complied with all the law.  I have gone –

Ms. Miller:  That’s not true. 

Mr. Novak:  If you care to listen to the answer, I will tell you that we have done everything we need to do under the law.  (R1638).

Mr. Novak:  I will tell you that if you are in a new building and you have been in the last year, our responsibilities go to the tax records, and the tax records identify ownership.  And those are the people we send notice to.

Ms. Cottey:  No one at 340 and the park got a letter.  343 units. 

Mr. Novak:  That might be the case if the assessor does not have the appropriate tax records and if it’s a new building.  We can’t go door to door.  We sent out 4,000 notices.  I think the media has covered this extensively.  I think most people are aware.  So we feel quite comfortable that notice has been given to everyone who has an interest.  (R1646). 

Neither Mr. Novak nor the attorneys currently representing the Applicants have ever identified any single individual or entity that was (1) listed as the owner or owners of record of property at 340 East Randolph; and (2) affirmatively stated that that individual(s) or entity(ies) received due notice required by the municipal code.  This silence speaks volumes, especially since the Applicants went so far as to move for judgment on the pleadings on the question of notice, but at no time identified any person, entity, land trust, or corporation that allegedly appeared on the “authentic tax records” for the property located at 340 East Randolph. 

Upon learning of applicants’ apparent failure to comply with the notice provisions, the Plan Commission, acting through its chairman, offered her “clarification.”

Chairman Searl:  Excuse me, one minute.  I would like to clarify something.  In the code, I have been informed by the zoning administrator [sic] commissioner that, if your condominium has more than 25 units, your association is the one that gets the notice.  So not every individual condominium unit gets the notice.  So I’d like to clear that up.

Ms. Slotir:  Our association did not get the notice.  But, anyway, I don’t want to use up my three minutes of time on that.  Thank you.  (R1648).

Neither Chairman Searl nor the unknown “zoning administrator commissioner” identified the statutory or code provision which provides that if a condominium building has more than 25 units, the applicant need only serve the association as opposed to the individual owners.  Moreover, at no point during this litigation have the defendants ever claimed that written statutory notice was served on the 340 East Condominium Association as opposed to the individual owners. 

A review of the relevant ordinances which govern notice shows that neither Section 16-4-100(c) and 17-3-0107 permit an applicant to serve notice on the condominium association as opposed to the individual landowners.  The commission’s decision to move forward with the hearing after being apprised of the applicants’ failure to comply with the notice requirements amounted to a violation of due process.  One of the key purposes of process is to ensure that the party has a meaningful opportunity to present his or her case.  By failing to provide written notice to the 340 plaintiffs, the Applicants effectively prevented them from mounting a meaningful opposition to defendants’ application.  A review of the record shows that the defendants called several expert witnesses and were able to present their Application with the assistance of at least two attorneys.  The defendants were also able to submit traffic studies, land use studies and other impact studies in support of their application.  Even if, for the sake of argument, the 340 plaintiffs learned of the proposal two or three weeks before the hearing, they hardly had sufficient time to hire experts, attorneys and prepare land use or traffic studies. 

Since it is undisputed that notice was not provided to the 340 plaintiffs, the Commission’s decision violates procedural due process as well as the applicable ordinances governing notice.  By failing to insist on compliance with the notice requirements, the Commission did not follow the essential procedural requirements which govern proceedings under the Lakefront Protection Ordinance.  In sort, the Commission acted illegally.  Consequently, the court should vacate the Commission’s decision and resolution and at the very least remand it to the Commission for a new hearing, presumably a hearing that is conducted with proper notice provided to all of the adjacent landowners.

B.The Plan Commission’s approval of Application 547 was against the manifest weight of the evidence.

1.The evidence contained in the administrative record does not support the Plan Commission’s finding that the Museum’s application conforms with the policies and other provisions set forth in the Lake Michigan and Chicago Lakefront Protection Ordinance.

Following the May 15th public hearing, the Plan Commission issued a resolution in which it recommended approval of applicants’ proposed amendment to Planned Unit Development No. 677 and formally approved defendants’ Lakefront Protection Application.  The Commission specifically found that the proposed amendment was “in conformance with the purposes, policies and other provisions set forth in the Lake Michigan and Chicago Lakefront Protection Ordinance.  In reaching its decision, the Commission specifically adopted and incorporated a report prepared by the commissioner of the Department of Planning & Development, dated May 15, 2008, as well as the department’s recommendation that the proposal be approved (R1849-R1850).  The Department of Planning’s recommendation purports to address the policies set forth in the Lake Michigan and Chicago Lakefront Protection Ordinance (R1807-R1809). 

Policy No. 5 of the Lakefront Protection Ordinance is expressly intended, “to maintain and improve the formal character and open water vista of Grant Park with no new above-ground structures permitted.”  Notwithstanding Policy No. 5’s clear, unequivocal and obvious mandate, the Commission approved Application No. 577, even though it expressly permits construction of a “new above-ground structure.”  The Commission approved defendants’ application even though there are, at last count, four separate Supreme Court decisions which specifically prohibit the construction of buildings or structures in Grant Park.  Why the Commission ignored the obvious and failed to realize that the proposed amendment would violate Policy No. 5 remains unclear, and at this juncture, unknowable.  However, the plaintiffs would suggest that testimony offered by the Park District’s special legal counsel, Mr. Jack Guthman, may have confused the members of the Commission.  In what he characterized as his effort to “dispel misunderstandings that have arisen regarding the legal principles that govern the Grant Park site,” Mr. Guthman stated that “the museum is proposed to be constructed entirely underground, beneath the park, not on park land, thus the Ward cases, much discussed in recent weeks, do not apply.”  He further stated that “the only element of proposed museum to be built above ground is a glass entrance pavilion.”  (R1407).  Although Mr. Guthman initially stated that the museum would be located entirely underground, he later described the building as a “below grade” structure.  (See R1406-R1409).  However, as will be shown below, the terms “below ground” and “below grade” are not synonymous and certainly may not be used interchangeably. 

According to the bulk table data that was submitted in connection with the application and was ultimately approved by the Commission, grade is established at upper Randolph Street, a section of street that stands 55 feet above ground level.  And while the museum’s proponents may describe or characterize this structure as either below ground or below grade, the data contained in the bulk table data, which sets allowable height and density, belies and contradicts their representations.  The bulk table submitted by the applicants indicates the maximum height for any structure in sub-area D, (the proposed site for the museum) in Planned Unit Development No. 677 is 75 CCD.  (R137).  75 feet CCD is defined as 20 feet above upper Randolph Street.  (R137).  The resolution approving the application specifically references the bulk regulations and data table and states that the applicants “would adhere to the use, bulk and density requirements of existing plan development No. 677 and propose adding a new sub-area D for the proposed project.”  In addition, the bulk and density requirements for this “new sub-area D” will allow structures up to a maximum height of 75 feet CCD or 20 feet above upper Randolph Street.  In other words, the Commission gave its seal of approval to an above-ground structure that could reach a maximum height of 75 feet or some six stories in height, (assuming one story measures 12 to 14 feet).  While the proposed museum may be located beneath upper Randolph Street, it nevertheless is an above-ground structure.  The drawings and diagrams submitted by the applicants show that a significant part of the structure is, in fact, located above ground and the museum’s architect, Mark Sexton, conceded as much.  He described this above-ground structure as “almost like a ranch-style house that has doors that go right up to the park, and I think that’s the element here.”  (R1478).  Notwithstanding the Lakefront Protection Ordinance’s specific and unequivocal prohibition of new above-ground structures in Grant Park, the Commission nevertheless approved the application and specifically found that it is “in conformance with the purposes, policies and other provisions set forth in the Lake Michigan and Chicago Lakefront Protection Ordinance.”  (R1850).  This finding lacks substantial foundation in the record, inasmuch as the evidence submitted by the Applicants, including, but not limited to bulk table data shows that the defendants will be allowed to construct a new, above-ground structure in Grant Park. Since Policy No. 5 specifically prohibits the erection of new above-ground structures in Grant Park, the Plan Commission’s determination that the proposal conforms to the Lakefront Protection Ordinance is against the manifest weight of the evidence and should be overturned.

2.The Plan Commission’s decision approving Application 547 will result in de facto private ownership of nearly two acres of Grant Park.

The Lakefront Protection Ordinance is expressly intended, among other things, to ensure that lakefront parks and the lake itself are devoted to public purposes.  See Petersen v. Chicago Plan Commission, 302 Ill.App.3d 461, 463, 707 N.E. 2d 150 (1st Dist. 1998).  See also, Policy 1 of the Lakefront Protection Ordinance’s 14 basic policies (R117).  In their application, the Park District and the Museum attempted to address Policy No. 1 and in so doing stated that the site will continue to be publically owned.” (R119).  Applicants’ response to Policy No. 1 is, to say the least, incomplete, if not evasive.  During the May 15, 2008 hearing, counsel for the Park District indicated that a lease or licensing agreement would “worked out between the two.”  (R1424).  Shortly after Guthman made this statement, Mr. Novak made an oblique reference to a “99-year lease.” (R1424-1425).  The terms and conditions of this proposed lease have neither been disclosed nor even alluded to.  Although proponents of the museum may claim that the property will remain in “public ownership,” the record suggests that the Park District intends to lease public property to a private entity for a 99-year period for a nominal rent.  While the city and the Park District may retain legal title over the property, the museum will, for at least 99 years, have exclusive control over the property.  In addition, in order to gain access to that property, members of the public will have to pay an admission fee.  Leasing valuable, scarce public land to a private corporation which intends to charge an entry fee is hardly compatible with ensuring public ownership and local control of the lakefront parks.  As a result, the Plan Commission’s decision approving Application No. 547 and recommending the adoption of the amendment is against the manifest weight of the evidence and should be overturned.

3.The Commission’s decision approving Application No. 547 allows 1.74 acres of lakefront parks to be devoted to private as opposed to public purposes. 

The Lakefront Plan Commission is charged with ensuring that any development of lakefront property serves 13 purposes identified in the Lakefront Protection Ordinance.  Purpose No. 5 states as follows:

To ensure that the lakefront parks and the lake itself devoted only to public purposes and to ensure the integrity of and expand the quantity and quality of the lakefront parks.

In response, the Applicants contend that the museum proposal constitutes a “public purpose consistent with other non-governmental, cultural and recreational facilities and institutions located in Grant Park and adjoining parks, including the Art Institute of Chicago, the Field Museum of Natural History, the Shedd Aquarium and Millennium Park” (Harris Theatre & Grill).  (R24).  (See also, R183). 

The Applicants’ response to Purpose 13, to say the least, is cursory.  The Applicants neglected to acknowledge or identify several private uses which are in no way compatible with the public purposes identified in the Lakefront Protection Ordinance and which will undermine, if not eviscerate, the integrity of Grant Park.  As amended, Institutional/Transportation Plan Development No. 677 permits a cornucopia of uses, including all uses permitted in sub-area D, (the site of the proposed Children’s Museum), and sub-area C.  These uses include, without limitation,  public park and recreation uses, Children’s Museum and accessory uses, field house and recreational facilities, and restaurants (including liquor sales for consumption on the premises), convenience food vendors; small convenience kiosks or newsstands, hand car wash facilities for customers of the park garage system, dry cleaning facilities, car rental facilities, walk-up automatic teller machines, vending machines, long-term automobile storage and self-storage facilities.  (R131-132).  The Amendment leaves open the possibility of even greater retail encroachment by allowing “sale of other goods and services, but only if otherwise specifically approved by the city in accordance with the terms of a concession and lease agreement between the city and a third party governing the use and operation of such below-grade parking.”  (R131-132).  By approving the Application and recommending adoption of the Amendment, the Commission gave its blessing to a wide range of retail uses that have absolutely no connection to any recognized public purpose, including restaurants, bars and other facilities which will be allowed to sell alcoholic beverages.  In essence, the Amendment permits the Applicants to operate their own strip mall, albeit on public property that is expressly reserved for public use.  The Commission’s approval of the application and its recommendation in favor of adopting the Amendment all but guarantees that a significant portion of Grant Park will become a playground for various retail outlets and establishments.  As such, the Commission’s approval of the Application is against the manifest weight of the evidence and should be reversed.

V.CONCLUSION

For all of these reasons, the plaintiffs pray for entry of judgment in their favor and against the defendants on Count I of their Amended Complaint and further pray for entry of an order (1) finding that the Application for Approval under the Lakefront Protection Order be denied; (2) reversing the decision of the Lakefront Plan Commission whereby it approved Application No. 547 and recommended adoption of the Amendment to Institutional/Transportation Planned Development No.  677; and (3) finding that Applicants failed to comply with the statutory notice provisions.  In the alternative, the plaintiffs request that this court reverse the Plan Commission’s ruling as to notice and remand the Application to the Commission for further proceedings; and for such other and further relief as this court deems just and proper.

Patrick J. Ruberry, Esq.

LITCHFIELD CAVO, LLP

303 West Madison Street , Suite 300

Chicago, IL  60606-3300

(312) 781-6677

(312) 781-6630 fax

LITCHFIELD CAVO LLP

 

James E. Fabbrini, Esq.

Law Offices of James E. Fabbrini

415 North LaSalle Street, Suite 603

Chicago, IL  60610

Phone (312) 494-3131

Fax (312) 494-3133

Firm I.D. No. 43161      

        

By:                                                                                

           Attorneys for the Plaintiffs

Return to CCM 1st Lawsuit Initial Complaint

Return to CCM 1st Lawsuit Initial Complaint