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September 19, 1990

CITY OF CHICAGO, ILLINOIS, a municipal corporation, and COMMISSION ON CHICAGO LANDMARKS, an agency thereof, Defendants

Marvin E. Aspen, United States District Judge.

The opinion of the court was delivered by: ASPEN


 This case involves a challenge to a landmark ordinance enacted by the City of Chicago, Illinois, that precludes the designation of religious buildings as landmarks without the consent of the building's owner. The plaintiffs, Rebecca Alger, Lisa Marini, Joan Smuda, The Landmarks Preservation Council of Illinois (the "Landmarks Council"), and The National Trust for Historic Preservation in the United States (the "National Trust"), have brought this action seeking both a declaration that this ordinance, Chicago, III., Municipal Code § 21-69.1 (1987) (hereinafter "Municipal Code § "), is unconstitutional and an order permanently enjoining its enforcement. The defendants, the City of Chicago and the Commission on Chicago Landmarks (the "Commission" or "Landmark Commission"), have filed a motion to dismiss the action pursuant to Fed. R. Civ. P. 12(b)(6). For the reasons discussed below, this motion is granted.

 I. Background

 a. The Chicago Landmarks Ordinance

 Like many cities and counties throughout the United States, the City of Chicago has enacted an ordinance aimed at the preservation of buildings, sites and areas that possess unique historical and aesthetic value. This ordinance, Municipal Code §§ 21-62 through 21-95, sets forth procedures for designating an "area, district, place, building, structure, work of art, or other object" as a "Chicago landmark." If a property is designated pursuant to these procedures, it may not be altered, modified or demolished without the express authority of the Landmark Commission. Municipal Code § 21-77.

 The landmark designation procedure is initiated by the Commission, which makes a preliminary decision based on seven statutory criteria, any one of which is sufficient for designation. Id. at § 21-66. The Commission thereafter notifies the owner of the property of its decision and requests the owner's consent to landmark designation. Id. at § 21-69. If the owner consents, the Commission is free to recommend designation to the City Council. Id. at §§ 21-69 and 21-72. The City Council then determines whether to officially designate the property as a Chicago landmark based upon the findings, recommendation and record of the Commission. Id. at § 21-73. In its discretion, the City Council may also hold public hearings to assist it in this determination. Id.

 If the owner refuses to consent to designation, the procedure that follows depends on the nature of the property under consideration. If the property is "owned by a religious organization and is used primarily as a place for the conduct of religious ceremonies," the owner's refusal to consent precludes designation. Id. at § 21-69.1. This effectively ends the designation proceedings.

 If the property is not a religious organization and is not therefore controlled by § 21-69.1, the Commission holds a public hearing in which it provides "a reasonable opportunity for all interested person to present testimony or evidence" regarding the appropriateness of landmark designation. Id. at § 21-71. Additionally, "any person, organization or other legal entity whose use or enjoyment or whose members' use or enjoyment of the [property] proposed for designation may be injured" by the decision may become a "party" to the proceeding. Id. According to the Complaint, the Commission has adopted rules that give "parties" an opportunity for more significant participation in the hearing than those who are only "interested persons." Id. Based upon the evidence presented at such a hearing, and the results of its independent efforts, the Commission may recommend designation to the City Council over the objections of the property owner. Thus, unless the property is controlled by § 21-69.1, a property owner's refusal to consent does not preclude the possibility of designation.

 b. Factual Background

 Because this is a motion to dismiss, we have assumed that the facts alleged are true and view them in the light most favorable to the plaintiffs. Powe v. City of Chicago, 664 F.2d 639, 642 (7th Cir. 1981). On November 1, 1989, the Commission made a preliminary decision that St. Mary's should be designated as a Chicago landmark. The Commission found that the church merited designation due to its unique and impressive architectural style emphasized by its monumental scale, its distinctive and firmly established role as a visual and physical centerpiece of the community, and its value as an example of Chicago's historical and architectural heritage in its imitation of the grand religious cathedrals of Europe.

 On November 3, 1989, the Commission sent notice of its decision and a request for consent to St. Mary's owner, Joseph Cardinal Bernardin, the Roman Catholic Archbishop of Chicago. Without stating any reasons, Cardinal Bernardin declined to give consent which, pursuant to § 21-69.1, precluded St. Mary's designation and obviated the necessity of a public hearing. The Commission subsequently withdrew its preliminary determination of landmark eligibility.

 Each of the plaintiffs in this case claims an interest in the designation of St. Mary's as a Chicago landmark. The individual plaintiffs, Alger, Marini and Smuda, all live in close proximity to the church and each claims that her "use, enjoyment and aesthetic appreciation of St. Mary's are threatened and adversely affected by the existence and enforcement of § 21-69.1." The other plaintiffs, the Landmark Council and the National Trust, each have members who live in the so-called "St. Mary's neighborhood" and who are similarly threatened and adversely affected by § 21-69.1.

 The plaintiffs seek a declaration that § 21-69.1 is unconstitutional, arguing that it violates the Establishment and Equal Protection Clauses of the Federal and Illinois Constitutions, and that it unlawfully delegates legislative power to religious organizations in violation of the Illinois Constitution. They urge this Court to ...

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