The City of Chicago has prevailed in the latest round of a “no holds barred” battle with local property owners over the constitutionality of The Chicago Landmarks Ordinance. In a decision dated May 2, 2012 by the Circuit Court of Cook County, the property owners’ claims that the Landmarks Ordinance was unconstitutionally vague and violated due process were rejected, and the court upheld the Ordinance. Hanna and Mrowka v. City of Chicago. No. 06 CH 19422. The landowners had previously won a highly favorable ruling at the appellate court level (in 2009), which raised the prospect of the invalidation of the Ordinance (as reported in a previous Reed Smith Client Alert) – a result that would have sent shockwaves through the historic preservation community nationwide. With the case remanded to it for decision, the trial court considered the due process vagueness issue in detail, including as to the clarity of the Ordinance’s criteria for landmark status; but it was not persuaded by the property owners’ arguments, and found that they did not meet their burden of rebutting the presumption of the constitutionality of the legislation, thus upholding the Ordinance.

In essence, the trial court was not convinced that the criteria and standards set out in the Landmarks Ordinance were vague, especially when viewed in the context of the issues and concerns that the Ordinance seeks to address. “[T]he challenged words of the criteria,” wrote Judge Sophia H. Hall, “must be read in the context of the whole criterion, and not in isolation. It is nearly always possible to take a few words here and there from an ordinance and argue how the word could be unclear . . . [W]hen the criteria are viewed in the context of the Ordinance and its expressed purposes as a whole, the criteria provide sufficient guidance for the [Landmarks] Commission to select and choose among that which represents the heritage and character of the City.”

The Ordinance sets out criteria that are to provide guidance to the Landmarks Commission in making its recommendations to the legislative body – the Chicago City Council – as to whether a property should be designated a City landmark. Among the criteria are: “Important Architecture,” “Distinctive Theme as a District” and “Unique Visual Feature.” The property owners challenged words such as “important,” “distinctive” and “unique” as being so vague in meaning as to allow for arbitrary application – in violation of constitutional due process guarantees. In rejecting this argument, the court pointed to a number of decisions in other states -- as well as a federal decision applying Illinois law – which upheld similar ordinances and statutes, and found the reasoning in them persuasive. The court noted that these decisions pointed to “guideposts” in the laws that informed the decision-making and acted against arbitrariness – specifically, the history and character of the area, the purposes of the ordinance and the criteria used in context, and the applicable procedures.

News reports have already indicated that the property owners are likely to appeal, and given that the case has been fought tenaciously over many years, this ruling is not likely to be the last word on this subject. It would not be surprising if the case made its way ultimately to the Illinois Supreme Court. In the meantime, historic preservationists all over the country are breathing a little easier, especially in the Windy City.