Wrigley Rooftop Foreclosure lawsuit

8/10/2019 Wrigley Rooftop Foreclosure lawsuit

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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

Case: 1:14-cv-07100 Document #: 16-1 Filed: 11/14/14 Page 1 of 24 PageID #:150


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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


Documents

Wrigley Rooftop Foreclosure lawsuit