A proposed bikeway in Naperville rolls to a stop-at least temporarily. A major metropolitan home builder wins a round in court against the federal Environmental Protection Agency. A fast-growing county prepares for a new ordinance that will take effect in June.
What do these situations have in common?
All are reminders that property rights issues are being fought in the Chicago area as well as across the country.
Most of the attention regarding property rights has been focused on the case involving David Lucas, a developer in South Carolina who bought two oceanfront lots but was denied building on them when the state subsequently passed an erosion law. The U.S. Supreme Court is expected to rule on that case in June.
But the Lucas case certainly isn`t the only involving property rights. In the case of the bikeway, the Naperville Park District wants to construct bike paths on both sides of the West Branch of the Du Page River, but one phase of the project is being opposed by homeowners in the upscale Kimball Mill subivision, which abuts the river.
According to Dennis Ulrey, director of planning for the park district, the bikeway was included in a 1985 master plan.
”Our philosophy is that we want a lot of green space up and down the river,” said Ulrey. ”An easement along the river (for a bikeway) was negotiated when the Kimball Mill subdivision was developed (three years ago)
as part of its park district donation.”
The park district`s 1991 budget included $20,000 for a 1,200-foot-long asphalt bikeway at the Kimball Mill site, which is east of Washington Street and about a half-mile north of 75th Street.
”After the affected homeowners heard about the bikeway, we started getting phone calls opposing it,” Ulrey said. ”We empathize with people`s concerns, so we put the project on hold. We want to work out a compromise.”
Rick Hitchcock, president of Naperville-based Hitchcock Design Group, said: ”We got involved (at the request of the Kimball Mill homeowners) to encourage the park district to do the bikeway on the other side of the river in Pioneer Park, where there is plenty of open space and riders wouldn`t be restricted to a narrow path.”
A land planner and landscape architect, Hitchcock said he favors the public`s right to access, ”but this is a tricky issue. The river setting was one of the selling points for Kimball Mill, and back-yard decks and patios were built to take advantage of the river asset. If a fence were built to delineate the bikeway, it would restrict the views.”
Of the 26 lots in Kimball Mill, six are on the river.
Geoff Roehll, a senior associate with Hitchcock Design Group, said that although a 20-foot-wide conservation easement running parallel to the river was included in the final plat of subdivision, ”all the owners claimed they had been misinformed as to the possibility of a bike path, and one owner of two lots said he had no documentation concerning the easement.”
Roehll added that an eight-foot-wide bikeway originally was planned, but the park district has agreed to downgrade it to a three- to four-foot-wide pedestrian path.
But the issue is still unresolved.
However, in another case a ruling recently was handed down by the U.S. Court of Appeals in Chicago. The court said Hoffman Homes does not have to pay a $50,000 fine to the Environmental Protection Agency for filling in an eight- tenths-of-an-acre wetland in 1985 at the 48-acre Victoria Crossings subdivision in Hoffman Estates.
Judge Daniel Manion of the 7th Circuit Court of Appeals wrote in his opinion that in order for a wetland to receive federal EPA protection, people must use it in some way, for birdwatching or some other activity.
The EPA had claimed that the disputed wetland was a potential landing spot for migratory birds and the destruction of the wetland could affect interstate commerce.
But the court`s ruled: ”Birds do not engage in interstate commerce,”
and ” . . . there is no evidence that migratory birds of any feather ever actually used the site.”
Norman Hassinger, chairman of Itasca-based Hassinger Cos., the parent company of Hoffman Homes, called his firm`s victory a landmark decision.
”The ruling will have a dramatic impact on Americans, including developers, homeowners and farmers,” Hassinger said. ”It`s good for many people. The court is saying that there has to be fairness, and not an arbitrary and capricious interpretation of wetlands rules.
”It seems to me that there is a real swing back to more of a balance between public and private interests.”
He said land involved in the case was a small, low-lying area with some water on it. ”We went through the normal village approval process, and at no time was there any indication that the site was a wetland,” Hassinger said.
Peter Burchard, village manager of Hoffman Estates, said it is not the job of the village to check for wetlands. ”We`re not the EPA or the Army Corps of Engineers. We only require zoning and approval of the site plan. Also, developers have to state that they are in compliance with other governmental requirements and have the necessary permits.”
Hassinger said that if the EPA appeals the decision, he will fight all the way to the Supreme Court, ”even though it has not been an inexpensive battle.”
Sean McElheny, a spokesman for the EPA in Washington, said the court`s decision is being studied and the EPA has not decided yet whether to appeal.
Another arena of property rights contention is historic preservation. One prominent case in Chicago involved the Chicago Theatre, 175 N. State St.
Though designated a landmark by the city, it came close to having a date with the wrecker`s ball in the mid-1980s. The owners of the theater and the adjoining Page Brothers Building (built in 1872 and notable for its full cast- iron facade, the only surviving example of its kind here) wanted to raze the buildings and redevelop the site.
”When the city denied a demolition permit, the owners filed a lawsuit claiming that, in effect, the property had been taken,” explained Barry Springer, a Chicago attorney whose practice concentrates on eminent domain and who worked at that time for the law firm representing the owners in the case. Ultimately, the Chicago Theatre was saved in October, 1985, when the new owners, the Chicago Theatre Preservation Group, paid $11.5 million to the former owners, Plitt Theaters Inc. and developer Thomas Klutznick.
In Lake County, which has had its share of property rights battles, a new ordinance may head off some future disputes.
Scheduled to become effective June 19 is the Lake County Watershed Development Ordinance, which was designed with these objectives: to ensure that there is no increase in flood damage because of new development; to allow local government control of development regulations; to limit environmental degradation of lakes, streams and wetlands; to save taxpayer dollars by reducing future flood control needs; and to provide a fair balance among various private and public interests.
Ward Miller, executive director of the Lake County Stormwater Commission, said weekly workshops were held last summer at which developers and environmental groups discussed the proposed ordinance.
”By bringing both sides to the table, I think we achieved a balance between public rights and private property rights,” Miller said.
As an example of how one part of the ordinance was written, he described the process of reaching agreement on buffer requirements.
”We started with a first draft in February, 1991, using as a model the Northeastern Illinois Planning Commission (NIPC) ordinance calling for a 75-foot setback that includes a 25-foot vegetative buffer between a
development and a wetland or stream,” Miller said.
”Builders and developers maintained that too much land was being taken, that the requirement was overkill,” he said. ”Through a long series of meetings we reached a compromise that serves the public interest for water quality vs. the right of private property owners to develop their land.
”The Lake County ordinance calls for a 30-foot vegetative buffer, unless the pond, stream or wetland is less than one acre. In that case, the buffer would range from 10 to 30 feet.”
Violations of the new ordinance will be subject to fines not exceeding $500 a day for each offense.
Phil Peters, deputy director of NIPC, said the preservation of wetlands is important because ”wetlands are almost like a sponge: They hold a lot of water and release it slowly, which works well when flooding occurs.”
Peters said that property rights disputes involving bike trails are difficult ”because bike trails need to be continuous, and certain parcels can be critical to that end.”
One Lake County builder objects to the length of time it takes governmental bodies to act in questions over wetlands.
Richard Brown, president of Libertyville-based Cambridge Homes, said it takes the Army Corps of Engineers 18 to 24 months to review property to decide whether it includes a wetland and, if so, whether it can be mitigated with the creation of a nature area on the property.
”There are times when the government has to take land through condemnation, but the decision to do it shouldn`t drag on for years,” said Brown. ”Tremendous dollars are involved. Some builders have been forced out of business because they had to wait so long to find out if they could develop their land. This is government at its worst.”
One of Brown`s subdivisions, Cambridge Country in Mundelein, was involved in a property rights case that was solved amicably.
The subdivision was annexed by the village in late 1986.
”We checked out everything carefully before we bought the land. Then about 2 1/2 years later, after the subdivision was two-thirds built, the Illinois Department of Transportation decided it wanted to acquire part of the subdivision for the future extension of Illinois Highway 53,” Brown said.
Nineteen acres of 200-acre Cambridge Country were bought by the state for $6.04 million in 1990, including two homes built for the 1988 Parade of Homes. IDOT is renting the two homes.
”People love open space, but developers don`t like it,” said Allen Kracower, president of Allen Kracower Associates, a Buffalo Grove-based land planning firm.
”In Lake County, condemnation has been used as a political tool to stop growth. Now, though, there has almost been a reversal on the open space question in the county.
”Government tries to control the use of land in two ways, through zoning and condemnation,” Kracower said. ”Owners can challenge condemnation, but can`t win in court. People don`t get market value for their land.”
A controversial tract of land in Westchester is currently the subject of condemnation proceedings, according to Westchester`s village manager, John Crois.
The Illinois Department of Conservation and the Cook County Forest Preserve District plan to acquire the vacant 80 acres at Wolf Road and 31st Street and preserve it as an open prairie. ”Growing on the site are rare prairie plants,” Crois said.
He added that the land is zoned for single-family homes, and sidewalks and streetlights were installed in the late 1920s, but economic times changed and it was never developed.
The owners of the land would like to sell it for development.
”But the condemnation is a steamroller and can`t be stopped,” Crois said.
Bob Corrigan of the Illinois Department of Conservation said negotiations are proceeding with two owners of land not yet condemned to set a price for their lots.
Paul Wing of Glenview, one of the owners, charged that the Department of Conservation ”is using falsified evidence to drive down the price of the property by declaring it a flood hazard.”
Fair compensation is one of the major demands of property rights activists. One of them, Henry Lamb, executive vice president of the Maywood-based Environmental Conservation Organization, said: ”When government decides it must control land, then it must compensate the land owner.”
However, Lamb charges that the ”government is usurping the individual`s right to use property and without the constitutional right to due process.
”We`re concerned about federal legislation involving open space, wetlands, clean water and endangered species. Laws in these areas could affect the remaining undeveloped land in the Chicago area as well as elsewhere.”
