A covenant is a clause of a binding legal contract, publicly recorded and relied upon by third-party beneficiaries, often to make significant real estate purchasing decisions. A Covenant Agreement has greater legal standing than a political Zoning Amendment.
It seems reasonable that a new land owner (or successive lead-developer) of an existing Planned Development Sub-Area should not have the authority to request/amend/delete "deferred requirements" in other sub-areas. However that is exactly what Magellan did when they purchased PD#70 Sub-Area E and they drafted the 2001 PD#70 Amendment to shift the Pedway completion financial responsibilities to unspecified "others" in all the other Sub-Areas. Fortunately, some other sub-area owners also entered separate (400 and 360) Covenant Agreements to prevent that from happening.
OUR NEWEASTSIDE PD#70 ASSOCIATIONS/OWNERS/RESIDENTS DO NOT WRITE THE RULES. THE RULES ARE WRITTEN BY THE CITY OF CHICAGO AND THE LEAD-DEVELOPERS...AND IF ANY ONE OF THE THREE BELOW: A) ZONING CODES, B) PLAN COMMISSION TRANSCRIPT DECISIONS, OR C) COVENANT AGREEMENTS ARE FACTUAL AND ACCURATE, THEN THE PEDWAY MUST BE COMPLETED BY THE CURRENT RESPONSIBLE SUCCESSIVE LEAD DEVELOPER (LAKESHORE EAST, LLC) AS A LEGALLY DEFERRED CONTRACTUAL AMENITY FOR OUR NEW EASTSIDE PD#70 COMMUNITY. OUR NEW EASTSIDE COMMUNITY EXPECTS OUR REPRESENTATIVE ALDERMAN REILLY TO STUDY AND CONFIRM THESE REQUIREMENTS IN THE OBJECTIVE REPRESENTION OF HIS CONSTITUENTS.
A...This section of the Chicago Zoning Code dealing with Planned Developments offers legal guidance:
"17-8-0400 Ownership, control and designated control.
All planned development applications must be at the time of filing be under single ownership, or control or single designated control. Provided, however, that after the adoption of an ordinance wherein the property is divided into specifically delineated subareas or subparcels, each having its own bulk and density standards, or similar subarea specific or subparcel specific development controls or requirements, the owners of or designated controlling party for each subarea may seek amendments, changes, or modifications for that subarea without the consent of the owners or designated controlling party of the other subareas. Single designated control for the purpose of this paragraph shall mean the party who is authorized by the applicant, its successors and assigns or any property owners association which is formed to succeed the applicant for the purposes of seeking approval of a Planned Development amendment, change or modification . This Section 17-8-0400 is not intended to interfere with, abrogate or annul any zoning rights agreement, deed restriction, or other written agreement between owners or designated controlling parties of subareas, or any provision in a Planned Development where the issue of subarea control is expressly addressed. Notwithstanding the foregoing, in no instance shall the owner or designated controlling party of a subarea be permitted to unilaterally seek an amendment, change or modification that would reduce any bulk, density, parking or similar development requirement generally available or applicable to all subareas, such as any unused bulk or density rights, or which would materially adversely reduce another subarea owner's right of access, or which would materially adversely reduce open space, walkways, or similar design requirements applicable to one or more subareas, or which would render another subarea a non- conforming use."
(Added Coun. J. 5-26-04, p. 25275; Amend Coun. J. 1-11-06, p. 68321, § 1; Amend Coun. J. 4-15-15, p. 106130, § 15)
B... 1993 PLAN COMMISSION TRANSCRIPT EXCERPTS:
Lawyers Rolando Acosta and Jack Guthman spoke in behalf of the developer applicant. Mr. Acosta stated on page 100: “There is an agreement between the applicant and 400 East Randolph condominium association that was entered into in 1979 at the time of the 1979 amendment. The applicant intends to abide by that agreement. We do not believe that this amendment (1993) violates that agreement. We do not believe that this amendment (1993) voids that agreement.”
Samuel Frieman represented the 400 Condominium Association. He read the 1979 Agreement into the record of the hearing… Point Three: “provided however in the development of townhouses between the upper level plaza and plus thirty feet above the upper level, anywhere north of the 400 building and Harbor Point, the Venture may develop said townhouses in accordance with the site coverage limitations provided under the ’79 Agreement. (Note that the town home "site coverage" was limited to 60% of a single parcel above the “plaza level” of Upper Randolph. LSE appears to be using 85% - 55' out of 65' parcel depth.)
This venture agrees to cooperate in the planning of pedestrian traffic connection between the 400 Building and the pedestrian walkway system, which will eventually be constructed when the adjacent property to the north of the 400 Building is developed.
To that end, the 400 Condominium Association within one year, will provide plans to the Venture, exhibit these communications showing that those plans were provided.”
On page 140, Mr. Frieman continued: “Four, major pedestrian pedway. The planned enclosed all-weather walkway designed to accommodate pedestrian accessibility at the arcade level through the 1979 amendment and continuing to date (1993) ran from Michigan Avenue to the Lake on its east-west path. The proposed amendment would end the walkway at the west line of Field Boulevard and I believe that’s being modified too as of this week.” (It was not modified in the published final document, as promised to ODE and the Plan Commission.) On page 146, he summarized: “Moreover, we object to the disregard of the substance to the 1979 letter agreement, Exhibit A, concerning development in the area east of field Boulevard and Outer Drive East building’s connection to the pedestrian pedway. We urge the Chicago Plan commission and the Chicago City Council to recognize and support the principles and promises of that agreement and incorporate it in the amendment.
On page 159, Chairman Hedlund addressed the applicant Mr. Acosta: “Your position is then that there, that the application that we’re being asked to approve does not change anything previously agreed to between the developer and the 400 condominium Association.”
Mr. Acosta replied: “That is correct.”
Chairman Hedlund: “That is your position.”
Mr. Acosta: “And if the 400 Condominium Association continues to be nervous, we are more than happy to retype this letter and resign it today.
Chairman Hedlund: “Retype the 1979 letter?”
Mr. Acosta: “Yes. We can type the verbatim, except obviously for the language of changes post ’79 and we would have it executed by the partners of the Venture.
Chairman Hedlund: “ And I assume your willingness then, if we were to condition our approval to a republishing of that letter and signing by the developer and Condominium Association, you would consent to that?”
Mr. Acosta: “Yes.”
Chairman Hedlund: “All right. That solves that problem.”
(It was updated and signed on 2-8-1993.)
Mitchell Carden of the Metropolitan Planning Council received the amended PD only that morning, and stated on page 198: “We also feel that a pedestrian walkway must extend all the way to Lake Shore Drive as in the 1979 amendment and we cite the illustration and page in the ’79 amendment. Rather than ending at Field Boulevard, as is proposed in the new amendment. This leaves all five residential buildings at the end of Randolph and Harbor Drive without any access to Michigan Avenue or to Illinois Center. The 1969 Planned Development had a very specific timeframe for completion of pedestrian walkways, park and other infrastructure improvements. All of this was to be completed at the end of 20 years, in 1989.” (emphasis added to excerpts)
C... EXCERPTS FROM 1993 COVENANT AGREEMENT:
"3. ICPV agrees to cooperate in the planning of a pedestrian traffic connection between the 400 Building and the pedestrian walkway system which will eventually be constructed when the adjacent property to the north of the 400 Building and east of Field Boulevard is developed. To that end, ICPV shall notify the Association in writing six months prior to commencement of construction of a building at such location and the Association will provide plans to ICPV of the base of the 400 Building within two months of receiving such notice. After receipt of plans of the base of the 400 Building, ICPV will direct its architect to provide for the design for the adjacent property location (s) for a pedestrian traffic connection between the 400 Building and the pedestrian walkway system. It shall be the option of the Association to elect to connect to said pedestrian walkway system.
4. ICPV hereby represents to the Association that ICPV, Metropolitan Structures and Illinois Center Corporation are the only parties presently holding an ownership interest in or purchase contracts or purchase options on the undeveloped portions of the Restricted Property. ICPV, Metropolitan Structures and Illinois Center Corporation hereby agree that the terms of this agreement shall be binding on their successors and assigns, and that in selling or leasing any portion of the Restricted Property this Agreement will be incorporated by reference in any contract for sale and deed or conveyance or lease for said property, and shall constitute a restriction thereon.
5. ICPV hereby agrees with the Association that this Agreement shall be executed in five counterparts with executed counterparts to be retained by the parties hereto and an executed counterpart to be filed with the City Council Committee on Zoning and the City of Chicago Department of Planning and Development and with one counterpart to be delivered to the Clerk of the City of Chicago.
6. Nothing in this Agreement shall be deemed to modify the effect of zoning changes enacted after due notice and hearing subsequent to the 1993 Amendment, except any zoning changes initiated or consented to by ICPV or its successors or assigns."
The above three arguments should be sufficient to require our current lead-developer Lakeshore East, LLC to fulfill the Pedway completion responsibilities that were required to be specified in the sales transaction from the Whitman Corp. lead-developer in 2001. If additional background information or arguments are desired, click on the extensive PEDWAY INDEX for webpages going back to 1999.................................>>