This picture of the graphic sign posted by Lake Shore East developer just north of the 400 Randolph property appears to violate the March 15, 2001 covenant agreement requiring:
"2. For the proposed dwelling units immediately adjacent to the north property line of ODE, no structure shall extend above the finished floor elevation of the seventh (7th) floor of ODE." (emphasis added)
The expanded (from 10% to 77%) mechanical structures appear to violate the clear wording and intent of the agreement to not obstruct the views from the Lakeshore Academy windows, the sundeck, and pool deck. The developer's own architect determined the excessive height to be 11 foot 3 inches, according to a reliable source.
Another provision of the 2001 covenant agreement is apparently also being violated because no plans to allow direct access to the Pedway by 400 Randolph residents have been presented:
"5. LE shall agree to extend the pedway to the east side of Field Drive in exchange for certain items to be negotiated in a future side letter agreement between 400 and LE." (emphasis added)
Lakeshore East cannot unilaterally avoid extending the pedway by simply failing to reasonably negotiate. Also Lakeshore East apparently obtained approval for these Park Homes from the Chicago Department of Planning on December 22, 2005, by failing to reveal the 2001 covenant agreement.
The 1993 covenant agreement remains in effect and provisions to incorporate a direct pedway connection by the sucessive developer Lakeshore East have not been fufilled:
"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." (emphasis added)
Full Text of 2001 Agreement between Lakeshore East and the 400 Condominium Association
March 15, 2001
This agreement shall summarize the discussion and agreements reached by and between Lakeshore East LLC ("LE") and individual officers and representatives of the 400 Condominium Association ("400") regarding various issues involving the proposed Lakeshore East development and Outer Drive East ("ODE") located at 400 East Randolph Street. This agreement is not binding upon 400 until approved by the Board of Directors. It is intended to outline the understanding between LE and 400 and form the basis for a future agreement.
The undersigned agree to the following:
1. 400 acknowledges LE has met with 400 and reviewed the plans being presented to the Chicago Plan Commission.
2. For the proposed dwelling units immediately adjacent to the north property line of ODE, no structure shall extend above the finished floor elevation of the seventh (7th) floor of ODE.
3. For the proposed dwelling units immediately adjacent to the north property line of ODE, the south facade of these units, which is exposed and adjacent to the garage shall be clad with masonry, e.g., face brick, but not concrete block or exposed concrete.
4. LE warrents that its direct actions will not interrupt the chilled water service to ODE.
5. LE shall agree to extend the pedway to the east side of Field Drive in exchange for certain items to be negotiated in a future side letter agreement between 400 and LE.
6. 400 shall offer no objections at any public hearing conducted by the City, including the Plan Commission hearing, to any proposed zoning changes.
The current 2007 litigation to enforce the 2001 ODE Agreement, is augmented by 1) reference to the 2001 Planned Development #70 Amendment “ town home graphics” (see below),
2) the 1993 Agreement that is complementary and still enforceable, and
3) the 1993 Excerpts (see below) from the official Plan Commission Hearing Transcript.
An 8 page report by the Department of Planning and Development dated January 21, 1993 was presented to the pubic just prior to the Plan Commission Hearing on the 1993 Planned development #70 Amendment.
The report stated on page 2 that: “While no substantive changes to the existing (1979) Planned Development are proposed, other than those necessary to accommodate the new park proposal, certain exclusively technical and minor changes unrelated to the park issue are also proposed.” There was no mention of eliminating Pedway access to 5000 persons. There was the specific additional requirement: “that the enclosed pedestrian walkway system be extended east of Field Boulevard to connect the buildings at the northern perimeter of the undeveloped land area.” Also: “the reduction in the minimum width of enclosed pedestrian walkways to allow for more uniform walkway segments.”
Pages 98 through 170 and pages 198 and 199 of the Plan Commission TRANSCRIPT were obtained from the Department of Planning in 1999 and are available for review and copying in the NEAR (New Eastside Association of Residents) records (312-938-0884, Richard Ward). They were contained in 3 notebooks that were copied by the 400 Condominium Association in 2001, and may be available in Attorney John Pikarski’s files. There are now 5 notebooks that were copied by the Buckingham lawyers in 2007.
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)
FOR REFERENCE...EXCERPTS FROM 1979 PD #70 AMENDMENT:
"For the purposes of this Planned Development, the 'Major Pedestrian Walkway' shall consist of an enclosed all-weather walkway, having a minimum unobstructed vertical clearance of 9 feet (or lower as required by street conditions) and a width of 40 feet or 25 feet, designed to accomodate pedestrian access at the Arcade Level as described and shown on the Pedestrian Walkway System plan herewith attached. It shall be the responsibility of the applicant to provide continuous major pedestrian walkways at Arcade Level as referred to herein, subject to the review of the Department of Public Works and approval by the Department of Planning, City and Community Development.."
FOR REFERENCE...EXCERPTS FROM 1993 PD #70 AMENDMENT:
"The pedestrian walkways dipicted on the Pedestrian Walkway System Map shall consist of an enclosed all-weather walkway, having a minimum unobstructed vertical clearance of 9 feet... It shall be the responsibility of the Applicant to provide continuous pedestrian walkways at the Arcade Level..."
Note the 40 foot and 70 foot height limitations on this graphic dated March 2, 2001. This is the MAXIMUM BUILDING ENVELOP that was approved in 2001 by the Plan Commission, the Zoning Committee of the City Council, and finally the entire Chicago City Council.
Lakeshore East has not only disregarded the 2001 Covenant Agreement and the still-in-force 1993 Agreement with the 400 Condominium Association, but they have apparently used their political influence to obtain a quiet "administrative" Part II approval of a so-called "MINOR CHANGE", that was issued with no public input or knowledge.
The MINOR CHANGE approval of the parkhomes fronting on Westshore Dr. (north of ODE property) is dated December 22, 2005 and administratively allows a building height of 78' 7" instead of 70 feet, also allows rooftop enclosures to increase from 10% to 77% and an absolute building height of 90 feet 4 1/2 inches (+108' 4 1/2" CCD).
The PART II approval for the parkhomes is dated June 6, 2006 and was only available to the public (including adjacent ODE owners and the 400 Condominium Association) with a formal request under the Illinois Freedom of Information Act (FOIA).
As an extreme example of the (unchallenged) Chicago Planning Department administrative approval process, the AQUA height limit that was approved by the City Council in 2001 after public hearings, was increased an amazing 230 feet (to 900 feet) as a "minor change" without any public knowledge or input. We now have a new alderman and a new commissioner that may not continue this abuse of power.
In an unrelated issue, we must monitor very closely any Children's Museum City Council approval "below ground", because the Planning Department could approve a "minor change" within their administrative authority...and become an illegal "obstruction" or "building" in violation of the "dedication restrictions" and the 4 Illinois Supreme Court decisions.
Page 6.28 dated March 2, 2001 - just 13 days before the ODE 2001 Agreement was signed. How will the judge factor this evidence into his 2007 decision?
"Does not change" still means "Does not change", even 14 years later with a successive developer, according the the still enforceable 1993 ODE Agreement.
Last opportunity to enforce both 1993 and 2001 ODE Agreements
<---2001 ODE-LSE Agreement--Height Limit---------------------------North of ODE Property-------------------------------------->