As you probably know, a developer acquired the old Nichols Library building in downtown Naperville. The deed has covenants that any future owner "shall retain, protect and maintain in its present condition in perpetuity, the Washington Street facade of the original 'Old Library Building,' including the USGS bench mark in the northwest corner of the building in its present state." The deed also states that the owner "shall further retain, protect and maintain in its present condition in perpetuity, the interior facade of the Washington Street entrance foyer of the original 'Old Library Building.'"
The developer bought land on Mill Street for the former tenant of the Old Nichols Library, the Truth Lutheran Church, and swapped that land for the site of the old Nichols Library. Despite the covenants, the developer is proposing to demolish the building and incorporate the façade into a new development.
A group of citizens is trying to preserve the building, and two have filed for landmark status for it. A recent Naperville Sun article notes Mayor Chirico’s belief that if landmark status were granted to the old library, the City may be forced to buy it.
Our thought on that: Why?
Why would the City have to buy it?
Is there a requirement that the City buy a property which receives landmark status? We couldn’t find one in the Municipal Code section regarding landmark status, so one of us sent an email to Michael DiSanto, Naperville City Attorney. Mr. DiSanto replied: “I believe the Mayor is referring to the potential that the City will be exposed to litigation concerning whether landmarking of the old library without the owner’s consent constitutes a regulatory taking of the owner’s property. The Fifth Amendment to the U.S. Constitution prohibits government from taking property without just compensation and extends to the states under the Fourteenth Amendment’s Due Process Clause.”
Case law, including a US Supreme Court decision, would seem to support the City’s ability to grant landmark status to a privately owned property without the owner's consent.
The Mayor is the first one we are aware of who made the argument that the City would have to buy the building if it were to be declared a historic landmark. The Mayor also makes the argument that the City should not be buying properties it has no use for, that there are better uses for the money than buying the building, and that he is not for raising taxes in order to buy the old Nichols Library. Difficult to argue against those latter three points.
In presenting the argument that the City may have to buy the property, the Mayor has shifted the discussion. He has suggested the only alternatives as: 1.) the City allows the developer to proceed with his plans to demolish the old Nichols Library; or 2.) the City buys old Nichols Library, which then rightfully turns into a discussion of priority of limited City resources, use of tax dollars, possible tax increases to fund the purchase, etc. Most people are not going to react favorably to tax increases, so the most reasonable alternative would seem to be to approve the developer's plans.
This is what is called a false choice, or false dilemma: presenting two options as the only ones available, when others exist.
In an email to the Library Board of Trustees, the Mayor wrote “I agree that this is a beautiful and historic building” and “I think it's fair to say that everyone would like to see the building preserved.”
If the Mayor truly believes that, and would like to see the building preserved, but he’s concerned about a lawsuit, then an alternative proposed by some residents seems a reasonable place to start a discussion on the building: leave the existing covenants in place and don’t grant the developer’s requests for rezoning. He bought the building with the covenants in place and the current zoning. Just leave the covenants and zoning as is.
Rezoning is something which must be requested and granted, not something a developer has a right to obtain. To simply leave the existing zoning and covenants as they are would not be infringing on the property rights of the owner. The developer had to have known that when he bought the building, right?
What would give the developer reason to believe that demolition and rezoning was a done deal?
The discussion should include every possible alternative for the property. Isn’t that better than a false choice?