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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION
RIGHT FIELD PROPERTIES, LLC, RIGHT )FIELD ROOFTOPS, LLC, ROOFTOP )
ACQUISITION, LLC, 3633 ROOFTOP )MANAGEMENT, LLC, STANDARD BANK )AND TRUST COMPANY TRUST #21101, )#21101 AND #21100 EACH DATED AUGUST )29, 2011, SHEFFIELD-WAVELAND ROOFTOP, )INC., GWR PROPERTIES LLC, WRIGLEY )ROOFTOPS I, LLC, WRIGLEY ROOFTOPS )III, LLC, WRIGLEY ROOFTOPS IV, LLC, ) Case No. 14-cv-7100ANNEX CLUB, LLC, and 3701 N KENMORE, )LLC, ) Judge Amy J. St. Eve
Plaintiffs, )
)v. ))
THE COMMISSION ON CHICAGO )LANDMARKS, RAFAEL M. LEON, )CHAIRMAN, ANITA BLANCHARD, M.D., )JAMES HOULIHAN, TONY HU, MARY ANN )SMITH, ERNEST C. WONG, VICTOR )IGNACIO DZIEKIEWICZ, ANDREW J. )MOONEY, and THE CITY OF CHICAGO, a )municipal corporation. )
Defendants, )
DEFENDANTS MEMORANDUM OF LAW IN SUPPORT OF THEIR
MOTION TO DISMISS COUNTS II-VI OF PLAINTIFFS COMPLAINT
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TABLE OF CONTENTS
INTRODUCTION .......................................................................................................................... 1
BACKGROUND ............................................................................................................................ 2
LEGAL STANDARD ..................................................................................................................... 6
ARGUMENT .................................................................................................................................. 7
I. Plaintiffs Do Not State A Due Process Claim (Count III). ................................................. 7
A. Plaintiffs views into Wrigley Field are not protected property interests..................... 7
B. Even assuming Plaintiffs have protected property interests, Defendants satisfied dueprocess by allowing Plaintiffs to be heard before the Commission. ........................... 10
C. Plaintiffs other due process theories do not state a viable claim............................... 13
II.
Plaintiffs Fail To State An Equal Protection Claim (Count IV). ...................................... 15
III.Plaintiffs 1983 Claim Should Be Dismissed (Count V). .......................................... 18
IV.Plaintiffs Claims For Declaratory and Injunctive Relief Should Be Dismissed (Counts IIand VI). ............................................................................................................................. 18
CONCLUSION ............................................................................................................................. 19
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TABLE OF AUTHORITIES
Cases
Amer. Natl Bank & Trust Co. v. City of Chicago,568 N.E.2d 25 (Ill. App. Ct. 1990) ................................................................8, 9, 12
Ashcroft v. Iqbal, 556 U.S. 662 (2009)..........................................................................6, 13
Bd. of Regents of State Coll. v. Roth, 408 U.S. 564 (1972) ................................................7
Bettendorf v. St. Croix Cnty., 631 F.3d 421 (7th Cir. 2011) .............................................11
Bodenstab v. Cnty. of Cook, 569 F.3d 651 (7th Cir. 2009) ...............................................19
Cain v. Larson, 879 F.2d 1424 (7th Cir. 1989) ....................................................................7
Chavda v. Wolak,721 N.E.2d 1137 (Ill. 1999) .................................................................14
Cole v. Milwaukee Area Technical Coll. Dist., 634 F.3d 901 (7th Cir. 2011) ....................7
Cunliffe v. Wright, __ F. Supp. 2d ___, 2014 WL 2808969 (N.D. Ill. June 20, 2014) .......1
Doyle v. Camelot Care Ctrs., Inc., 305 F.3d 603 (7th Cir. 2002) ......................................11
Dubin v. Pers. Bd. of City of Chicago, 539 N.E.2d 1243 (Ill. 1989) ................................19
Dunn v. Fairfield Cmty. High Sch. Dist. No. 225, 158 F.3d 962 (7th Cir. 1998) .............14
E. St. Louis Fedn of Teachers, Local 1220, Am. Fedn of Teachers,AFL-CIO v. E. St. Louis Sch. Dist. No. 189 Fin. Oversight Panel,687 N.E.2d 1050 (Ill. 1997)...................................................................................15
F.C.C. v. Beach Commcns, 508 U.S. 307 (1993).............................................................16
Gen. Auto Serv. Station v. City of Chicago, 526 F.3d 991 (7th Cir. 2008).......................14
Groenings v. City of St. Charles, 574 N.E.2d 1316 (Ill. App. Ct. 1991) .......................8, 12
Jackson v. City of Chicago, 975 N.E.2d 153 (Ill. App. Ct. 2012) .......................................7
Jarabe v. Indus. Commn, 666 N.E.2d 1 (Ill. 1996)...........................................................16
JJR 1, LLC v. Mt. Crested Butte, 160 P.3d 365 (Colo. App. 2007)....................................9
Mathews v. Eldridge, 424 U.S. 319 (1976) .......................................................................11
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Monell v. Dept of Soc. Servs., 436 U.S. 658 (1978)........................................................18
Munson v. Gaetz, 673 F.3d 630 (7th Cir. 2012) ..................................................................7
Noah v. Enesco Corp., 911 F. Supp. 305 (N.D. Ill. 1995) .................................................18
Outcom, Inc. v. Ill. Dept of Transp., 909 N.E.2d 806 (Ill. 2009) .....................................19
Reget v. City of La Crosse, 595 F.3d 691 (7th Cir. 2010)...........................................16, 17
Residences at Riverbend Condo. Assn v. City of Chicago,5 F. Supp. 3d 982 (N.D. Ill. Nov. 19, 2013) ......................................................8, 12
Rios v. Jones, 348 N.E.2d 825 (Ill. 1976)..........................................................................11
Thorncreek Apartments III, LLC v. Vill. of Park Forest,
970 F. Supp. 2d 828 (N.D. Ill. 2013).....................................................................16
Touby v. United States, 500 U.S. 160 (1991) ....................................................................15
Van Harken v. City of Chicago, 103 F.3d 1346 (7th Cir. 1997) ......................................12
Virnich v. Vorwald, 664 F.3d 206 (7th Cir. 2011) ..............................................................6
Other Authorities
Federal Rule of Civil Procedure 8 .....................................................................................13
Municipal Code of Chicago 2-120-580 et seq. .......................................................Passim
Municipal Code of Chicago 4-388-010 etseq. .......................................................Passim
Rules and Regulations of the Commission on Chicago Landmarks ..........................Passim
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Defendants the City of Chicago (the City); the Commission on Chicago Landmarks
(the Commission); and Commission members Rafael M. Leon; Anita Blanchard, M.D.; James
Houlihan; Tony Hu; Mary Ann Smith; Ernest C. Wong; Victor Ignacio Dziekiewicz; and
Andrew J. Mooney (collectively Defendants)1hereby submit this memorandum in support of
their motion to dismiss Counts II-VI of Plaintiffs2Complaint for Administrative Review and
Other Relief (Complaint or Compl.).
INTRODUCTION
Plaintiffs own rooftop properties adjacent to Wrigley Field. Their suit challenges the
Commissions July 10, 2014 decision to approve the proposed addition of particular outfield
signs and expanded bleacher seating to the stadium, which is designated as a Chicago Landmark.
Plaintiffs contend that the decision violates their constitutional rights because it authorizes the
Cubs to make renovations that will block their unobstructed views into the stadium.
The rooftop owners have no constitutional right to prevent the Cubs from renovating their
own stadium pursuant to the Citys landmark review procedures. In particular, Plaintiffs due
process claim fails because the views into Wrigley Field are not a constitutionally-protected
property interest. Moreover, even if the views are protected, Plaintiffs were given a sufficient
opportunity to participate in the Commissions July 10 proceeding and to object to the
Commissions decisionand they did so. Further, Plaintiffs equal protection claim fails because
1The claims against the individual Defendants, sued in their official capacities, should be
dismissed as redundant of the claims against the Commission. See Cunliffe v. Wright, __ F.Supp. 2d ___, 2014 WL 2808969, at *3 (N.D. Ill. June 20, 2014).
2 Plaintiffs are Right Field Properties, LLC; Right Field Rooftops, LLC; RooftopAcquisition, LLC; Standard Bank and Trust Company Trust #21101, #21101 and #21100 eachdated August 29, 2011; Sheffield-Waveland Rooftop, Inc.; GWR Properties LLC; WrigleyRooftops I, LLC; Wrigley Rooftops III, LLC; Wrigley Rooftops IV, LLC; Annex Club, LLC;and 3701 N. Kenmore, LLC (collectively Plaintiffs).
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they are not similarly situated to Wrigley Fielda unique and historic sports venueand, even if
they are, there was a rational basis for the Commissions decision to approve the renovations at
issue here. Accordingly, Plaintiffs constitutional claims and related requests for relief in Counts
II-VI of the Complaint lack merit and should be dismissed with prejudice.
BACKGROUND
The Rooftop Properties
Plaintiffs each operate or plan to develop a Wrigley Field Adjacent Area Special Club
facility overlooking Wrigley Field (hereinafter the Rooftop Properties). Compl. 3-12.
Beginning in 1988, the Rooftop Properties were developed into clubs that charged spectators
admission. Id. 15-17. In 1998, the City adopted the Rooftops in Wrigley Field Adjacent Area
Ordinance, Municipal Code of Chicago (MCC) 4-388-010 et seq. (the Rooftops
Ordinance). The Rooftops Ordinance requires a special club license to sell admission and
concessions on the Rooftop Properties. Id. 4-388-030. To receive a license, the Rooftop
Properties must comply with requirements including a $1,000 license fee payable every two
years, id. 4-388-040; fire safety regulations, id. 4-388-065; annual inspections, id. 4-388-
075; and bleacher height restrictions, id. 4-388-170.
In early 2004, the Cubs entered into a settlement agreement with the Rooftop Properties
under which the Cubs would receive 17% of the Rooftop Properties gross revenues in exchange
for agreeing not to block the Rooftop Properties views of Wrigley Field. Compl. 28. In 2005,
the Wrigley Field bleachers were expanded, under the Entertainment and Spectator Sports
Planned Development No. 958 Ordinance. Id. 29. This expansion did not affect the views of
Wrigley Field from the Rooftop Properties. Id. 30.
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In 2006, the City amended the Rooftops Ordinance to allow the Rooftop Properties to
increase the buildings heights. Id. 31. The Rooftops Ordinance also imposed new building
standards and prohibited the alteration of the front facades of the Rooftop Properties without the
written consent of the Zoning Administrator. Id. 31-32; see also MCC 4-388-175(f).
Plaintiffs subsequently spent over $50 million, collectively, on renovations to the Rooftop
Properties. Compl. 31-32.
The Wrigley Field Landmark Designation Ordinance
In 2000, the Commission recommended to the City Council that Wrigley Field be
designated as a landmark under the Citys Landmark Ordinance , MCC 2-120-580 et seq. The
Commission issued a preliminary Landmark Designation Report on November 1, 2000, which
was revised on March 6, 2003. Compl. 21-22 and Ex. A thereto. The preliminary report
described numerous distinctive features of the ballpark. See id. On February 11, 2004, the City
Council unanimously enacted an ordinance designating Wrigley Field as a landmark (the
Designation Ordinance). See id. Ex. C thereto.
The Commissions Pre-Permit Approval Of Modifications To Wrigley Field
Under the Landmark Ordinance, permits for work on landmarked buildings require the
Commissions written approval if the permit would allow (1) the alteration or reconstruction of
or addition to any improvement which constitutes all or a part of a landmark or proposed
landmark, (2) the demolition of any improvement which constitutes all or a part of a landmark
or proposed landmark, (3) the construction or erection of any addition to any improvement or
the erection of any new structure or improvement on any land within a landmark district, or (4)
the construction or erection of any sign or billboard within the public view which may be placed
on, in, or immediately adjacent to any improvement which constitutes all or part of any landmark
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or proposed landmark. MCC 2-120-740. And the Rules and Regulations of the Commission
on Chicago Landmarks (the Rules and Regulations) elaborate on the standards and procedures
governing the Commissions approval of permits.3 The Rules and Regulations allow for the
Commissions pre-approval of a project before a permit is filed. They explain that the
Commission may issue a conditional approval of the project based on the pre-permit submission
by the applicant or engage in negotiations with the applicant to bring the project into
compliance. Rules and Regulations Art. III, C.2.a. As long as the eventual permit application
conforms with the conditional approval, itwill be approved by Commission staff. Id. Art. III,
C.2.b.
The Rules and Regulation also specify the criteria for the review of pre-permit
submissions. Id. Art. III, C.3. Under those criteria, the Commission staff shall approve the
submission if it determines that the proposed work will not have an adverse effect on a
significant historical or architectural feature. Id. Art. III, E.3. The significant historical or
architectural features considered during this review shall be those identified in the ordinance
designating the . . . landmark. Id. Art. III, G.1.a.
Here, the Designation Ordinance states that the significant historical and architectural
features of Wrigley Field for purposes of the Commissions review are identified as those
contained in Exhibit B. Compl. Ex. C thereto, 3.4 And, as listed in Exhibit B, these features
are (A) the Exterior Elevations and Roofs, (B) the Marquee Sign, (C) the Center Field
Scoreboard, and (D) features Inside The Ballpark, which are (1) [t]he unenclosed, open air
3The Rules and Regulations are available at http://www.cityofchicago.org/content/dam/city/depts/zlup/Historic_Preservation/Publications/Chicago_Landmarks_Ordinance_2014.pdf .
4While Section 3 of the Designation Ordinance refers to MCC 2-120-740, the sectionof the Landmark Ordinance that refers to significant historical and architectural features is
MCC 2-120-770, which governs the Commissions review of applications for permits.
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character, the exposed structural system, and the generally uninterrupted sweep and contour of
the grandstand and bleachers, and (2) [t]he brick wall, in its entirety, encircling the playing
field. Compl. Ex. C thereto, Ex. B 1. Elements not identified as Protected Features are
explicitly excluded from the Protected Features. Id. Ex. C thereto, Ex. B 3. Exhibit B
further explains, in a Guidelines section:
As part of its review, the Commission shall take into consideration the uniqueoperational concerns within the context of the operation of a ballpark, as well asfuture changes necessary to improve or modernize the ballpark, to the extent suchconsideration is not otherwise inconsistent with [the] intent of the ChicagoLandmark Ordinance.
Id. Ex. C thereto, Ex. B 5.
Exhibit B also includes several provisions governing signs affixed to Wrigley Field. In a
section entitled Master Sign Program, Exhibit B states that the Commission may allow
signage to be applied or attached to any Protected Feature by adopting a Master Sign Program.
Id. Ex. C thereto, Ex. B 6. Section 4, entitled Permit Review, lists various elements that are
deemed to not adversely affect the Protected Features, including Signage, to the extent
explicitly authorized by any Master Sign Program approved under Section 6. Id. Ex. C thereto,
Ex. B 4 and 4.18.
Pursuant to these procedures, in 2014, the Cubs sought pre-permit approval from the
Commission to erect two Jumbotrons, five additional outfield signs, and eight or more rows of
bleachers. Compl. 41. Plaintiffs requested permission to become parties to the approval
proceedings. Id. 42. They were allowed to make a twenty minute presentation, through their
attorney, during the CommissionsJuly 10, 2014 meeting addressing the Cubs application. Id.
43, Ex. F thereto, at 3. Commission staff submitted a report (the Staff Report) recommending
that the Commission find that the [project] will not adversely affect the significant historical or
architectural features of the landmark pursuant to [MCC 2-120-770] and preliminarily approve
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the project, subject to certain specified conditions. Id. Ex. E thereto, at 3. The Commission
accepted the staffs recommendation and approved the Cubsproposal. Id. 45, Ex. F thereto, at
3.
Plaintiffs Claims
In Count I of their Complaint, Plaintiffs seek administrative review under state law of the
Commissions July 10, 2014 pre-permit approval of modifications to Wrigley Field.5 In Count
II, they seek a declaration that the approval is arbitrary and capricious and violates the
Designation Ordinance, the Commissions rules, and Plaintiffs constitutional rights. In the
remaining counts, Plaintiffs allege violations of their constitutional rights to due process (Count
III) and equal protection (Count IV), assert a 1983 claim (Count V), and request injunctive
relief (Count VI).
LEGAL STANDARD
To survive a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), a
complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). While Rule 8(a)(2) requires only a short and plain
statement of the claim showing that the pleader is entitled to relief, a complaint must contain
more than labels and conclusions or a formulaic recitation of the elements of a cause of
action. Id. (quoting Twombly, 550 U.S. at 555). Conclusory allegations that merely recite the
elements of a claim are not entitled to the presumption of truth. Virnich v. Vorwald, 664 F.3d
5As explained in Defendants motion to dismiss, should this Court decide to exercisesupplemental jurisdiction over Plaintiffs request for administrative review under state law,
Defendants will promptly file a certified copy of the administrative record with the Court.
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206, 212 (7th Cir. 2011). Well-pleaded factual allegations are presumed true for purposes of a
motion to dismiss. Munson v. Gaetz, 673 F.3d 630, 632-33 (7th Cir. 2012).
ARGUMENT
I. Plaintiffs Do Not State A Due Process Claim (Count III).
A. Plaintiffs views into Wrigley Field are not protected property interests.
The threshold inquiry in any due process claim is whether a plaintiff has alleged the
deprivation of a property interest protected by the Fourteenth Amendment. Cole v. Milwaukee
Area Technical Coll. Dist., 634 F.3d 901, 904 (7th Cir. 2011). Such an interest exists where
there is a legitimate claim of entitlement based on substantive criteria limiting the governments
discretion; a plaintiffs abstract need, desire, or unilateral expectation is not enough. Bd. of
Regents of State Coll. v. Roth, 408 U.S. 564, 577 (1972); Cain v. Larson, 879 F.2d 1424, 1426
(7th Cir. 1989). Protected property interests are not defined by the Constitution itself, but by
existing rules or understandings that stem from an independent source such as state law. Roth,
408 U.S. at 577.6
Plaintiffs assert they have a constitutionally protected property interest in their Rooftop
properties and Rooftop licenses, and that they were deprived of this interest when the
Commission approved the proposed renovations to Wrigley field. Compl. 61. Plaintiffs,
however, do not allege that the Commissions decision has interfered with their use or enjoyment
of the Rooftop Properties or prevented them from carrying on the commercial activity authorized
6Plaintiffs do not allege that, in addition to their federal due process claim, they raise aclaim under the Due Process Clause of the Illinois Constitution. Regardless, the standards bywhich the Court would analyze the claims are the same. See Jackson v. City of Chicago, 975N.E.2d 153, 170 (Ill. App. Ct. 2012) (The threshold question in analyzing whether a procedureviolates due process is whether a constitutionally protected liberty or property interest is atstake.)(citations removed).
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by their rooftop licenses. Plaintiffs merely allege that the additional signs and bleachers will
block portions of their views into Wrigley Field. Id. 2, 37. Count III thus amounts to an
alleged deprivation of Plaintiffs existing views into Wrigley Field. See id. 49.
This Court has very recently held that this kind of interest is not protected by the Due
Process Clause. See Residences at Riverbend Condo. Assn v. City of Chicago, 5 F. Supp. 3d
982 (N.D. Ill. Nov. 19, 2013) (St. Eve, J.). In that case, a group of property owners challenged
the Citys enactment of the Wolf Point planned development zoning ordinance, which authorized
construction of new commercial buildings on property located next to theirs. Id. at 984-85. The
property owners argued they were owed due process because the development would impact
their external views and the value of their own property, but the Court dismissed the claims
because Illinois courts do not recognize property values, air, or light as constitutionally
protected property interests. Id. at 988.
The Court based this holding upon two Illinois cases. The first, Groenings v. City of St.
Charles, 574 N.E.2d 1316, 1325 (Ill. App. Ct. 1991), evaluated a challenge to a municipalitys
agreement not to annex the plaintiffs land and held that [d]eprivation of mere hoped-for
economic gain [from the potential annexation] is not a deprivation in the constitutional sense.
The second, American National Bank and Trust Company v. City of Chicago, 568 N.E.2d 25, 40
(Ill. App. Ct. 1990), considered a planned development zoning challenge from neighboring
landowners who, according to the court, did not have protected interests in the views or free flow
of air over adjacent land. Importantly, American National reached this conclusion in spite of
City ordinances that required the City, when reviewing zoning changes, to consider accessibility
to natural light, circulating air, and urban vistas free of visual pollution in the surrounding area.
Id. at 30, 40. Even this express reference to these factors in the Citys applicable laws did not
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(The significant historical or architectural features shall be those identified in the ordinance
designating the [landmark].). And the Designation Ordinance did not include views of the
surrounding arealet alone Plaintiffs views into the ballparkin its list of Wrigley Fields
significant architectural and historical features.
Nor does anything in the Rooftop Ordinance give Plaintiffs a protected property interest
in an unobstructed view into Wrigley Field. Indeed, the focus of the ordinance is to require
Rooftop Properties to take steps that protect the health and safety of their customers, see, e.g., id.
4-388-065 (requiring sprinkler systems, emergency lighting, and non-combustible construction
materials); 4-388-080 (requiring food service to comply with all applicable food regulations
and inspection requirements); 4-388-090 (regulating the sale of alcoholic beverages at
Rooftops). And while Plaintiffs claim that they have a protected property interest in their rooftop
licenses issued pursuant to the Rooftop Ordinance, see Compl. 61; MCC 4-388-010 et seq.,
no action of the Commission has deprived the Plaintiffs of their licenses to do business.
In sum, nothing in the Landmark Ordinance, the Designation Ordinance, the Rooftop
Ordinance, or Plaintiffs rooftop licenses issued pursuant to the Rooftops Ordinance, gives them
a legitimate claim of entitlement to unobstructed, unaltered views into Wrigley Field. Plaintiffs
therefore lack any protectable property interest in their Wrigley Field views and cannot maintain
their due process claim.
B. Even assuming Plaintiffs have protected property interests, Defendants
satisfied due process by allowing them to be heard before the
Commission.
Even if Plaintiffs had a property interest protected by the Due Process Clauseand, as
explained above, they do notPlaintiffs received the protections guaranteed by that clause.
Plaintiffs Count III contains a bevy of short, unexplained theories to advance their due process
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minimal incursions that Illinois does not recognize as protected property interests. See
Groenings, 574 N.E.2d at 1325.
Second, the City has a substantial interest in administrative efficiency and in reaching
reasonably prompt findings concerning proposals to alter landmarked buildings in the City. See
Van Harken v. City of Chicago, 103 F.3d 1346, 1351 (7th Cir. 1997) (recognizing interest in
streamlined administrative process and providing efficient methods of delivering governmental
services). These interests would be harmed by granting party status and the opportunity to call
and cross-examine witnesses to persons or entities (like Plaintiffs or other neighboring
landowners) who do not own, or have a protected interest in, the property actually at issue in a
permit review proceeding. Under Plaintiffs theory, each area landowner claiming a stake or
interest in the mere alteration of a landmark building could demand to become a party and
present his or her own case. This would significantly bloat and delay the Commissions work.
Third, there would be little gained from additional procedural safeguards in the narrow,
technical inquiry conducted by the Commission when considering pre-permit approval. The sole
issue presented there is whether a proposed building alteration would impair the significant
architectural and historical features of that building. See Rules and Regulations Art. III, A; id.
Art. III, G.1.a. There is little or no reason to believe that neighboring landowners would have
any greater insight or expertise on this narrow question than the Commission itself and/or the
Commissions technical staff. Indeed, even in the broader inquiry at issue in zoning decisions,
where the governing body is charged with accounting for, among other things, the needs of the
entire community surrounding the subject property, American Natl, 209 Ill. App. 3d at 116-17,
this Court has recognized that the process due . . . is minimal. Riverbend, 5 F. Supp. 3d at 987
(citing Muscarello v. Ogle Cnty. Bd. of Commrs, 610 F.3d 416, 423 (7th Cir. 2010)).
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Against this backdrop, Plaintiffs ability to respond to the Commission staffs
recommendation and otherwise state their case to the Commission through an attorney amply
satisfied due process. Plaintiffs had the opportunity to explain why they believe the proposed
renovations will impair Wrigley Fields protected features and to persuade the Commission to
deny the Cubs application. Thus, Plaintiffs were afforded due process.
C. Plaintiffs other due process theories do not state a viable claim.
Plaintiffs remaining due process allegations are a series of undeveloped theories that fail
to meet the pleading threshold. See Compl. 62. To state a valid claim, Plaintiffs must provide
a short and plain statement of the claim showing that the pleader is entitled to relief, but this
requires more than mere labels and conclusions. Fed. R. Civ. P. 8(a)(2); Iqbal, 556 U.S. at 678
(quoting Twombly, 550 U.S. at 555). Yet labels and conclusions are all that Plaintiffs offer for
their additional claims in Count III. For example, Plaintiffs allege no facts supporting their
contention that Defendants decided to approve the proposed permit applications prior to the
Commission meeting on July 10, 2014. See Compl. 62. Nor do Plaintiffs explain how
Defendants interpreted the Citys rules, regulations, and ordinances in a vague manner; indeed,
they do not even identify the provisions that they believe were interpreted vaguely. See id.
Furthermore, Plaintiffs claim that the Defendants enforce and administer a regulatory scheme
that improperly attempts to simultaneously exercise legislative, executive, administrative and
judicial power, id., is undeveloped and makes no sense in the context of reviewing an
application for a construction permit. Plaintiffs undeveloped theories should be dismissed.
Even if reviewed on the merits, the allegationsat bestappear to bring a substantive
due process claim, as they challenge the Commissions decision as arbitrary, capricious, and
lacking any legitimate objective, all without offering any content to explain these charges. See
Compl. 62. Any substantive due process claim would fail. Courts have repeatedly emphasized
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how limited the scope of the substantive due process doctrine is. Dunn v. Fairfield Cmty.
High Sch. Dist. No. 225, 158 F.3d 962, 965 (7th Cir. 1998). It is a modest limitation, and
unless a government practice encroaches upon a fundamental right, which Plaintiffs do not allege
here, substantive due process requires only that a practice be rationally related to a legitimate
government interest. Gen. Auto Serv. Station v. City of Chicago, 526 F.3d 991, 1000 (7th Cir.
2008).8
The City has a legitimate interest in the renovation and modernization of Wrigley Field,
which has not only historical but economic importance to the City. The Commission could
rationally conclude that new bleachers and signage would serve the City by promoting
development, increasing tax revenue, and enhancing a widely-enjoyed recreational amenity.
Furthermore, the Designation Ordinance specifically contemplates such changes and allows the
Commission, as part of its permit review, to consider the unique operational concerns within the
context of the operation of a ballpark, as well as future changes necessary to improve or
modernize the ball park, so long as such consideration is not otherwise inconsistent with the
intent of the Chicago Landmark Ordinance. Compl. Ex. C thereto, Ex. B 5. In advance of the
Commission meeting on July 10, 2014, Commission staff analyzed the proposed renovations and
their impact on the significant features set forth in the Designation Ordinance. The Staff Report
conditioned the staffs recommendation for preliminary approval of the renovations on the Cubs
making certain changes that would protect Wrigley Fields significant features. See Compl. Ex.
E thereto, at 3-4. The report also highlighted that the Designation Ordinances significant
features do[] not include any of the buildings across the street at Waveland or Sheffield, and
8A substantive due process claim under the Illinois Constitution faces the same level ofreview. Chavda v. Wolak,721 N.E.2d 1137, 1140-41 (Ill. 1999) (plaintiffs must show by clearand affirmative evidence that a government action is arbitrary, capricious, or unreasonable).
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that [t]he view outside the field is also not designated nor called out as a protected feature. Id.
at 1. Thus, the Commissions decision to accept the staffs recommendation, as reflected in the
Commissions minutes (Compl. Ex. F thereto, at 3), was rational, and Plaintiffs substantive due
process allegations fail as a matter of law.
Plaintiffs last undeveloped theorythat the Commission operates according to an
improper delegation of authoritywould fare similarly on the merits. See Compl. 62. This
contention ignores the accepted role that administrative bodies routinely play in the evaluation of
permit applications using specified criteria. So long as the legislature lays down by legislative
act an intelligible principle to which the person or body authorized to act is directed to conform,
there is no forbidden delegation of power. See Touby v. United States, 500 U.S. 160, 165 (1991)
(citations removed).9 As explained above, the Commission granted preliminary approval to the
Cubs proposal based on the authority and criteria of MCC 2-120-770, which directs the
Commission to consider the proposals impact on the significant historical or architectural
features of a landmark, and the Designation Ordinance, which contains an exclusive list of those
features but does not include Plaintiffs views into Wrigley Field. None of Plaintiffs due
process theories state a viable claim, and Count III should be dismissed.
II. Plaintiffs Fail To State An Equal Protection Claim (Count IV).
In Count IV of the Complaint, Plaintiffs allege that Defendants violated the Equal
Protection Clauses of the federal and Illinois constitutions. Plaintiffs allege that, because the
Rooftops Ordinance prohibits the Rooftop Properties from altering the facades of their buildings,
which are not designated as landmarks, the Rooftop Properties are subjected to more stringent
9 Similarly, under Illinois law, a delegation of authority is proper where sufficientstandards . . . guide the administrative body in the exercise of its functions. E. St. Louis Fednof Teachers, Local 1220, Am. Fedn of Teachers, AFL-CIO v. E. St. Louis Sch. Dist. No. 189Fin. Oversight Panel, 687 N.E.2d 1050, 1063 (Ill. 1997).
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historical preservation standards than Wrigley Field, which is undisputedly landmarked.
Compl. 68. They contend that the City is arbitrarily applying its landmark regulations so as to
irrationally discriminate against similarly situated persons. Id. 65.
Under both federal and Illinois law,10unless a statutory classification draws distinctions
among people based on membership in a suspect classor infringes upon a fundamental right,
a plaintiff must allege that no reasonably conceivable state of facts. . . could provide a rational
basis for the classification. See F.C.C. v. Beach Commcns, 508 U.S. 307, 313 (1993). As
Plaintiffs do notand cannotclaim membership in a suspect class, and no fundamental rights
are implicated in this case, their equal protection claims are subject only to rational basis review.
The gravamen of Plaintiffs equal protection challengeis that a similarly situated entity
has received better treatment than they have, with no rational basis for the distinction. Compl.
65. Plaintiffs claim fails at the outset because they do not identify a similarly situated
comparator. [S]imilarly situated individuals must be very similar indeed, Reget v. City of La
Crosse, 595 F.3d 691, 695 (7th Cir. 2010) (quoting McDonald v. Vill. of Winnetka, 371 F.3d
992, 1002 (7th Cir. 2004), but the entity to which Plaintiffs compare themselves, Wrigley Field,
is not similarly situated to the Rooftop Properties in any material respect. Wrigley Field is a
historic stadium that is home to a professional sports team and hosts various large-scale sporting
and entertainment events, while Plaintiffs businesses do none of these things and are also much
smaller and more recent. Moreover, Wrigley Field and the Rooftop Properties are not similarly
situated with respect to the ordinances at issue. The Rooftops Ordinance does not apply to
Wrigley Field; the Designation Ordinance does not apply to the Rooftops. The Rooftops
10 Federal and Illinois equal protection claims are generally governed by the samestandards. Thorncreek Apartments III, LLC v. Vill. of Park Forest, 970 F. Supp. 2d 828, 845(N.D. Ill. 2013); Jarabe v. Indus. Commn, 666 N.E.2d 1, 3 (Ill. 1996) (This court uses the sameanalysis in assessing equal protection claims under both the federal and the state Constitutions.).
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Ordinance sets out requirements for businesses that seek to obtain special club licenses. See
MCC 4-388-010 etseq. The Designation Ordinance creates a framework for the preservation
of the distinct features of a Chicago landmark. See Compl. Ex. C thereto. There are simply no
common rules that have been applied differently to these entities. The equal protection analysis
may end here. See Reget, 595 F.3d at 695.
Furthermore, even were the Rooftop Properties and Wrigley Field similarly situated, the
facts alleged in Plaintiffs Complaint reveal a rational basis for imposing different requirements
upon them. As an important Chicago landmark that is home to the Cubs, Wrigley Field occupies
a fundamentally different position in the history and economy of the City than the Rooftop
Properties. See Compl. 16-22. Proposed modifications to Wrigley Field must be evaluated by
the Commission because they necessitate a careful balancing of aesthetic, historical, and
economic factors, including the future profitability of the Cubs franchise. The Designation
Ordinance contemplates this balancing: it directs the Commission to take into consideration the
unique operational concerns within the context of the operation of a ballpark, as well as future
changes necessary to improve or modernize the ballpark. Compl. Ex. C thereto, Ex. B 5. In
contrast, restrictions on altering the facades of the Rooftop Properties are meant to protect the
ambience of the Wrigley Field Adjacent Area, and are imposed as a condition for the
maintenance of a business license. See MCC 4-388-175(f). Moreover, the Rooftop Properties
may indeed alter their facades, as long as they do so with the approval of the Zoning
Administrator. See id. Because the facts alleged in Plaintiffs Complaint demonstrate that the
difference in treatment of these entities is entirely rational, Plaintiffs cannot sustain an equal
protection claim, and Count IV should be dismissed.
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III. Plaintiffs 1983 Claim Should Be Dismissed (Count V).
In Count V of the Complaint, Plaintiffs allege that because [t]he Commissions actions
and decisions represent the official policy of the City of Chicago, Compl. 73, the City should
be held responsible under 42 U.S.C. 1983 for deprivations of Plaintiffs rights to due process
and equal protection. Count V states no cause of action; rather, it sets forth an argument as to
why the City may be held liable under 1983 for constitutional violations allegedly resulting
from the Commissions decisions. See Monell v. Dept of Soc. Servs., 436 U.S. 658 (1978).
Under Monell, a municipality may be held liable when a constitutional violation results from a
municipal policy, such as an ordinance or other official decision. Id. at 690. Monell is not a
freestanding cause of action, however, and Count V should therefore be dismissed as duplicative
of the claims asserted in Counts III and IV.
IV. Plaintiffs Claims For Declaratory and Injunctive Relief Should Be Dismissed
(Counts II and VI).
In Count II, Plaintiffs seek a declaratory judgment under the Illinois Declaratory
Judgment Act, 735 ILCS 5/2-701, that the Commissionsdecision is arbitrary and capricious,
unrelated to the public health, safety and morals, and violates the Designation Ordinance, the
Commissions rules and Plaintiffs constitutional rights. Compl. 58. In Count VI, Plaintiffs
request that the Court enjoin the City from violating the Designation Ordinance or issuing
permits to the Cubs in violation of the Designation Ordinance. Id. 81. To the extent that
Plaintiffs requests for declaratory and injunctive relief in Counts II and VI are based on the due
process and equal protection claims in Counts III and IV, they assert no independent claims and
fail for the reasons previously explained. See, e.g., Noah v. Enesco Corp., 911 F. Supp. 305,
307 (N.D. Ill. 1995) (An injunction is a remedy, not a cause of action.).
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Further, insofar as Count II challenges the Commissions July 10, 2014 decision as
violative of the City ordinances and regulations governing the Commission, it should be
dismissed because such a challenge cannot be brought through a declaratory judgment action.
Under Illinois law, judicial review of an administrative decision is available through the
Administrative Review Law or, where that law does not apply, by a common law writ of
certiorari. See Bodenstab v. Cnty. of Cook, 569 F.3d 651, 661 (7th Cir. 2009) (Where the
Administrative Review Law has not been expressly adopted, the writ of common law certiorari
survives as an available method of reviewing the actions of agencies and tribunals exercising
administrative functions.)(quoting Stratton v. Wenona Cmty. Unit Dist. No. 1, 551 N.E.2d 640,
645 (1990)). These are the exclusive avenues for review of an administrative decision. See
Outcom, Inc. v. Ill. Dept of Transp., 909 N.E.2d 806, 813-14 (Ill. 2009) (treating a complaint for
declaratory judgment as though the plaintiff had sought a writ of certiorari); Dubin v. Pers. Bd.
of City of Chicago, 539 N.E.2d 1243, 1246-47 (Ill. 1989) (explaining that other than under the
Administrative Review Law or the common law writ of certiorari, courts lack authority to
entertain independent actions regarding the actions of an administrative agency). Accordingly,
because Count I of the Complaint asks the Court to conduct administrative review of the
Commissions decision, see Compl. 52-56, Count II should be dismissed. See also
Defendants Motion to Dismiss, 7.
CONCLUSION
For the foregoing reasons, Defendants request that the Court dismiss Counts II-VI of
Plaintiffs Complaint with prejudice pursuant to Rule 12(b)(6)and grant Defendants such further
relief as the Court deems just and appropriate.
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Date: November 14, 2014 Respectfully submitted,
STEPHEN R. PATTONCorporation Counsel of the City of Chicago
By: /s/ David M. Baron
Andrew W. WorseckDavid M. BaronEllen W. McLaughlinCity of Chicago, Department of LawConstitutional and Commercial Litigation Division30 North LaSalle Street, Suite 1230Chicago, Illinois 60602(312) 744-7129 / 744-9018 / 742-5147
Attorneys for Defendants
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