Wouldn’t It Be Nice?

The Illinois Appellate Court took a strike at Chicago’s Landmarks ordinance this week, issuing a ruling from a pair of Chicago landowners (one of whom is an executive for real estate firm Draper & Kramer) that terms the ordinance “vague” and “ambiguous.” The suit is sent back down to the trial court, where the ordinance will likely be struck down, then appealed by the city up to the state supreme court.

I’d like to offer an analysis of the ruling and the ordinance, but the appeals court has not yet put the ruling online, four days after it was released. This is pretty ridiculous, as there is a great deal of interest in this case and this ruling. The ordinance is online from the City of Chicago here.

Blair Kamin runs down the basics here:

The ruling, which came down Friday, takes direct aim at the seven standards by which Chicago decides whether a building or district can be safeguarded from demolition or defacement—association with a significant historic event, evidence of important architecture and so on. A site must satisfy at least two of the seven standards to become a landmark.

While these criteria are expressed in common, easily understood language, that is not sufficient for the judges, who seem to yearn for hairsplitting, legalistic exactitude. “We believe,” they write, “that the terms ‘value,’ ‘important,’ ‘significant,’ and ‘unique’ are vague, ambiguous, and overly broad.”


Looking at the ordinance, I’m unconvinced by the court’s ruling (as reported in various media sources). There are seven criteria for landmarking, and any district submission must meet at least 2 of the seven: Critical Part of City’s Heritage, Significant Historic Event, Significant Person, Important Architecture, Important Architect, Distinctive Theme as a District, and Unique Visual Feature.

The only two potentially vague areas are the latter two. Distinctive Theme: Its representation of an architectural, cultural, economic, historic, social, or other theme expressed through distinctive areas, districts, places, buildings, structures, works of art, or other objects that may or may not be contiguous. Visual Feature: Its unique location or distinctive physical appearance or presence representing an established and familiar visual feature of a neighborhood, community, or the City of Chicago.

Recognizing a distinctive area or an established and familiar visual feature necessarily involves some individual or collective interpretation about which there may be legitimate argument. However, there is of course substantial public input built into the process, as the steps for landmarking include a Preliminary Recommendation (with a notice sent to property-owners), a Request for Planning Report evaluating the potential impact of the designation, a Notice of Public Hearing (15 days in advance), a Public Hearing, a Commission Recommendation within 30 days of a hearing, a City Council Consideration of Designation, and a similar process for amendments to the district by the same process. If the City Council does not consider and vote on a Landmarks Commission recommendation within 365 days, the recommendation automatically goes into effect. There is plenty of time for debate about visual features and reports are that no district is approved without strong resident (property owner) support.

Now, I have a pretty high standard for historic significance and visual distinctiveness, but I have yet to see a building or district that does not meet that standard. In addition, the City of Chicago, unlike smaller cities like Ann Arbor, has plenty of opportunities for new construction of all types in all areas of the city — landmarking buildings does not significantly (or even insignificantly) impair the creation of new units, meaning there is a robust real estate market that is in fact aided by, rather than hindered by, the landmarks ordinance. Chicago’s reputation for important architectural landmarks is part of what makes the city attractive. This is a bad ruling which should be and I think will be overturned by the state supreme court. Why the ruling at the appellate level? Lynn Becker thinks it’s politics.

Yet the court said, “We believe that the terms ‘value,’ ‘important,’ ‘significant,’ and ‘unique’ are vague, ambiguous, and overly broad.” To anyone who attempts to evaluate art, these terms are anything but vague – they are indispensable. The ruling may be less a matter of good law than a commentary on the corrupt system that Illinois uses to select judges.

Although the Crain’s report describes the ruling as coming from a three judge panel, the website of the Illinois court system actually lists four jurists for the Fifth Division.

Two of them, Margaret O’Mara Frossand and Michael P. Toomin, have consistently been rated from “Qualified” to “Highly Qualified” by the various groups evaluating judges seeking election.

The other two, however, are poster children for Cook County’s politically compromised judiciary. As recounted by the Chicago Council of Lawyers, John P. Tully, whom they called “an embarrassment to the Illinois bench,” was charged with seven counts of misconduct in 1990 for such deceptive campaign tactics as running ads calling himself “Highly Qualified and Endorsed” despite the fact that every major bar association found Tully “Not Qualified.” According to the Council, Tully said he was “Highly Qualified” because he felt he was highly qualified and that he was “Endorsed” because voters cast ballots for him.