Is Landmarking a Legal Thing?
Jack Guthman, attorney, Shefsky & Froelich
The question as posed, “Is landmarking legal?” is not difficult to answer. The Supreme Court long ago opined that preservation of historic sites is a legitimate “public purpose.” In the most renowned case on the subject, which related to New York’s Grand Central Station, the Court held that preservation is “an entirely permissible government goal.”
Perhaps a more appropriate—and more difficult—question is, “Have landmark laws been reasonably and consistently applied?” This is especially the case in jurisdictions such as Chicago where the local ordinance is broadly written and, as a result, quite subjective. Indeed, an Appellate Court in Illinois has ruled that the Chicago landmark ordinance is unconstitutionally vague. Whether that decision will be upheld by the Illinois Supreme Court is uncertain. If the language of the ordinance withstands this constitutional challenge, the question remains: Is the manner in which the ordinance is administered appropriate?
There is a long history in Chicago of landmark advocates—and, at times, city officials—rushing to designate a building of lesser import in the wake of the demolition of a building which may have had landmark-worthy quality. Similarly, buildings which had not come under landmark consideration previously have become landmark targets only when their owners announced plans for demolition and new construction at their sites.
Various reasons have given rise to such efforts. Often nostalgia rather than the building’s history or quality of architecture set the process in motion. Landmarking of a familiar structure may be nothing more than a neighborhood’s fear of the unknown, that is, not knowing what might be built on the site going forward. A more invidious use of the landmark process is its use to impose “backdoor” downzoning—to use the process to obtain lower density in situations where traditional downzoning (or avoidance of increased density) would not be possible. And there are examples of plain, old-fashioned anger and spite against a developer triggering the landmark process.
All of the above has led to a landmark process which, while “legal”, is often seen as unpredictable and insensitive to both property rights and the greater interests of the city as a whole.