So it begins.
After months, if not years, of posturing, the owners of the rooftop buildings standing tall behind the cozy confines of Wrigley Field finally filed suit to prevent the Chicago Cubs from breaking ground on their long-anticipated expansion project. But, the rooftop owners are going about it in a wholly unexpected way.
In February, I detailed the Cubs’ plans to transform Wrigley Field, which is celebrating its 100th birthday after opening its gates for the first time in 1914. The $500 million privately-funded plan included constructing an adjacent hotel, installing new lighting, and, importantly, erecting outfield signs at the historic ballpark to accommodate extensive advertising that was never realized. At the time, the Cubs’ proposed signage plans were modest, consisting of only a 5,700 square foot JumboTron in left field and a smaller, 650 square foot sign in right field. Still, the rooftop owners strenuously objected – frequently threatening litigation – and maintaining that the proposed signs would cut down their view of the ballpark in violation of an agreement struck in 2004 between the rooftop owners and the Cubs, who were owned by The Chicago Tribune at the time.
Whether it was the plan all along or simply to stick it to the uncompromising rooftop owners after negotiations failed, the Cubs unveiled a new proposal in May in which the team would erect seven outfield signs, three rows of additional bleacher seating and new decks behind the bleachers in right and left field. Unsurprisingly, the addition of more signs, decks and seating would further eclipse the sightlines from beyond the ivy of the abutting buildings on Waveland and Sheffield. Because certain aspects of Wrigley Field are protected with landmark status, the proposed renovation plans require approval by the administrative agency created to oversee the city’s landmarks - the Commission on Chicago Landmarks (the “Commission”). In July, following a review of the new proposal, the Commission unanimously approved the club’s proposed renovation project. Said Chicago Mayor Rahm Emanuel of the approved proposal, “Not only does it uphold the architectural heritage of the stadium that Chicagoans can enjoy but will generate thousands of jobs. In addition, discussions with the rooftop owners should — and must — continue so that this plan remains a win-win.”
Apparently, however, the time for discussion is over. On August 14, owners of eight rooftops filed suit in the Circuit Court of Cook County, Illinois against the City of Chicago, the Commission and the individual members of the Commission. The Complaint, in addition to certain damages, requests that the court reverse the Commission’s approval of the Cubs’ most recent proposal.
According to the Complaint, by approving more signs in the Friendly Confines, the Commission “arbitrarily” reversed its own enacted ordinance, which designated Wrigley’s “open-air character and uninterrupted sweep of the bleachers” as a protected part of Wrigley’s landmark status. That is “grossly inequitable,” the Complaint maintains, since the rooftop owners relied on that finding in reaching the 2004 revenue-sharing agreement with the team that has nearly another decade to run.
The Complaint further alleges that the Commission’s decision “must be reversed” because it violates the law and the Commission’s own rules and regulations. In contrast to all previous renovation projects, the recent negotiations were privately conducted by the Mayor’s staff and the Cubs, with the rooftop owners almost entirely excluded. Unlike other applicants, reads the Complaint, the Cubs’ proposal was rushed through without the customary review “because all City Departments were directed to give the Cubs whatever they wanted.” As a result, “defendants deprived plaintiffs of their property rights without due process of law.”
Notably absent from the list of defendants, however, was the Cubs. As I addressed in February, the rooftop owners likely have a relatively weak case against the Cubs. The bigger obstacle for the rooftops, however, is the arbitration clause contained in their 2004 agreement with the team. If the rooftop owners were to file a breach of contract complaint against the Cubs, the suit would likely be moved to arbitration. With the dispute outside of the courts’ purview, the rooftop owners would be unable to obtain an injunction – they’d only be able to obtain a ruling on damages caused by the Cubs’ alleged breach – and the Cubs could move forward with their renovation plans this off-season while the breach of contract dispute is being resolved.
The rooftop owners seem to have recognized that they have a better chance of protecting their investment – their revenue-generating views into the historic ballpark – in the short term by suing the City and the Commission. Essentially it’s an indirect way of suing the Cubs, with the short-term goal of obtaining an injunction to delay the renovation project while the suit is resolved. Granting of such an injunction would allow the rooftop owners to regain the negotiation leverage against the Cubs and force an agreement, be it fewer signs or substantial compensation.
Whether the rooftop owners will be able to obtain the injunction is another matter. Even assuming the rooftop owners have the appropriate standing to bring suit,[i] to obtain a preliminary injunction – a temporary restraint that may be granted before or during trial, with the goal of preserving the status quo before final judgment – Illinois courts consistently require a plaintiff to establish four elements with specific facts: (1) a protectable right; (2) irreparable harm; (3) an inadequate remedy at law; and (4) a likely success on the merits.[ii] The rooftop owners will likely have little difficulty establishing the second and third elements, as the construction of the signs, decks and additional bleachers before resolution of the case’s merits will not be able to be undone and will have severe detrimental effects on the rooftop owners’ businesses. Whether the rooftops have a protectable right and whether they are likely to succeed on the merits of their case, is another story.
Generally, homeowners have no protectable right to a view (or light or air), unless it has been granted in writing by a local ordinance (such as a zoning law).[iii] The rooftop owners argue in their Complaint that the landmark ordinance, which designates and protects certain aspects of Wrigley Field with landmark status, grants them a protectable right to their view of Wrigley’s sweeping bleachers, and the City and Commission made a mistake that was contrary to the current law in granting the Cubs’ proposal. However, if that sweeping view of the bleachers is one that is intended to be from the point of view of a ballpark patron, the rooftop owners would not likely have a protectable right.
Further, establishing a likelihood of success on the merits will also be a challenge for the rooftops. Frankly, it is rather difficult to get a court to overturn an administrative decision.[iv] To overturn the Commission’s decision, the rooftop owners will need to convince the court that not only was the administrative decision wrong (i.e. the new renovation proposal would violate the landmark ordinance), but that it was against the manifest weight of the evidence and the Commission abused its discretion, a higher level of scrutiny than in typical commercial disputes.[v] To do this, the rooftop owners will need to show flaws in the Commission’s decision-making process. The Complaint lays out a colorable argument, highlighting various “arbitrary and capricious” actions allegedly taken or omitted from the decision-making process that would support the alleged abuse of discretion. But again, with the heightened standards protecting the administrative process, the rooftop owners face an uphill battle to even prove a potential likelihood of success on the merits of their case.
In the end, the rooftop owners know that it’s the bottom of the ninth, and they’re down to their final strike. There’s no denying they present at least an interesting argument in their Complaint, one that certainly has a chance to be more effective in the short term than a direct suit against the Cubs. Yet, in an ironic twist of fate, it still appears more likely than not that the rooftop owners will strike out swinging like so many of the Cubs teams of the past.[i] In Illinois, standing to challenge the government’s determination regarding a landmark’s status requires some injury in fact to a legally recognized interest, and a prospective party cannot gain standing merely through a self-proclaimed concern about an issue, no matter how sincere, as aesthetic interests, while not to be disregarded, are not controlling on the question of standing. Landmarks Pres. Council v. City of Chicago, 125 Ill.2d 164 (1988). Though the rooftop owners will likely successfully argue that they have a legally recognized interest in the Commission’s decision – their 2004 agreement with the Cubs – the affected part of the landmark is the sweeping view of the bleachers. Such a view is maintained from inside the stadium, not from the rooftop buildings’ point of view, and therefore a court may rule the rooftop owners have nothing more than an aesthetic interest. [ii] Murges v. Bowman, 254 Ill.App.3d 1071, 1081 (1st Dist. 1993). [iii] The rooftop owners will likely argue that their 2004 agreement with the Cubs protects their view, but keep in mind, however, that the suit isn’t against the Cubs, but rather against the City and the Commission. The 2004 agreement is not something the Commission had any obligation to consider in approving the Cubs’ proposal. If the rooftop owners want to enforce their agreement with the Cubs, they would be required to bring a breach of contract suit against the team, which, as discussed earlier, would likely end up in front of an arbitrator. [iv] Municipalities, counties, states and even the federal government are authorized to create administrative agencies – such as the Commission on Chicago Landmarks – to handle various matters. The idea behind this is that legislatures can effectively delegate limited areas of law to a group of people who become “experts” in a narrow field so that those issues can be dealt with more efficiently, freeing up government resources for other matters. Every agency is created by statute that explicitly states the agency’s authority. As long as they do not exceed their authority and provide adequate due process, it is extremely difficult to get their decisions overturned. The Courts are reluctant to substitute their judgment for that of the experts designated by the legislature. [v] 735 ILCS 5/3-110 (West 2008) (“An administrative agency’s decision regarding the conduct of its hearing and the introduction of evidence is properly governed by an abuse of discretion standard and subject to reversal only if there is demonstrable prejudice to the party.”)