For the second time, preservationists can claim victory in an important legal case that has made two trips to the Appellate Court of Illinois. The ruling was issued on September 26 in a long-standing legal battle over the Chicago Landmarks Ordinance, when the appellate court ruled that Chicago’s preservation law is not “unduly vague.”  The appellate court issued this ruling in response to a constitutional challenge filed by opponents of the law, who argued that the wording of the law is so unclear that it must be struck down as unconstitutional. The City of Chicago is defending its ordinance against two plaintiffs who own property in separate historic neighborhoods.

In general, a law violates due process if its terms are so vague and indefinite that ordinary people of reasonable intelligence would have to guess at what they mean.  The court’s ruling strongly rejected the argument that the Chicago preservation ordinance is vague, and instead held that the language of the law does have a common, intelligible meaning. For example, the appellate court found that words like “value,” “exemplary,” “historic,” and “significant” are sufficiently clear—an important ruling because these terms are commonly employed in preservation ordinances across the country. 

Writing for the appellate court, and echoing the commonsense approach taken by Judge Sophia Hall in the trial court’s excellent opinion, Justice Fitzgerald Smith explained that “[a]n ordinance will not be deemed vague simply because someone may be able to to ‘conjure up hypothetical situations in which the meaning of some terms may be in question.’”

In addition, Justice Smith noted the need for some degree of vagueness in every law to allow for its application in a broad range of circumstances. Noting that preservation laws, by their very nature, need not be written with “mathematical certainty,” the court rejected each of the plaintiffs’ challenges to the language of Chicago’s ordinance. The court relied on several cases discussed by the National Trust in its amicus brief, which showed examples of courts across the country that had rejected similar challenges.

In addition, the appellate court clarified its earlier 2009 opinion from the first appeal, which gave the impression to some commentators that the court viewed the law as unduly vague. The appellate court explained that its prior comments were taken out of context, given the early stage of litigation in which the court issued its opinion.

Finally, although the appellate court rejected the plaintiffs’ vagueness challenges to the language of the landmarks law overall, it sent the case back to the trial court on the plaintiffs’ due process and equal protection claims, new claims that the appellate court had not previously considered. Although it is expected that the plaintiffs’ claims will ultimately be rejected by the trial court on remand, the appellate court found that the plaintiffs had stated enough facts in their latest amended complaint to justify at least one more round of litigation, specifically relating to equal protection and due process.

The 31-page opinion, available here, provides a helpful analysis for use in all places where historic preservation laws may be subject to challenge.  We do not yet know whether the property owners will petition the Illinois Supreme Court to hear an appeal.  The National Trust will continue to provide assistance and technical support to the city, as well as to state and local preservation advocacy groups.

Will Cook is an associate general counsel at the National Trust for Historic Preservation.