City of Chicago v. Boulevard Bank National Ass'n

12/12/97

No. 1-96-2799

CITY OF CHICAGO, a Municipal ) Appeal from the
Corporation, ) Circuit Court of
) Cook County
Plaintiff-Appellee, )
)
v. )
)
BOULEVARD BANK NATIONAL ASSOCIATION, )
As Trustee Under Trust Agreement )
Dated November 11, 1986 and Known as )
Trust Number 8348, TOMMY'S CHICAGO )
BAR AND GRILL, PLAZA BANK, A )
Corporation Of Illinois, The )
Mortgagee In the Mortgage Recorded )
As Document 92070440 and The )
Assignee In The Assignment Of Rents )
Recorded As Documents 92070441, and )
The Secured Party In The Financing )
Statement Filed As Number 92U2202, )
FIELD'S RESTAURANT, HARRY BOCKOS, )
BILL BOCKOS, GOLDEN P CORPORATION, )
PETER A. PALIVOS, DEARBORN )
RESTAURANT AND LOUNGE, INC. and )
UNKNOWN OWNERS, ) Honorable
) Joanne L. Lanigan,
Defendants-Appellants. ) Judge Presiding.

JUSTICE QUINN delivered the opinion of the court:

This case is brought on appeal from an August 5, 1996, order entered by
the circuit court of Cook County denying defendants' traverse and motion to
dismiss the City of Chicago's ("City") complaint for condemnation, with
respect to the quick take of the Oliver Typewriter Building located at 159
North Dearborn Street.
On appeal, defendants contend that: (1) the trial court erred in holding
that the City could acquire the Oliver Building with tax increment financing
("TIF") for the stated purpose of assembling the property with the Oriental
Theater where the City failed to amend the existing TIF plan pursuant to the
Illinois Tax and Increment Allocation Redevelopment Act ("TIF Act"), 65 ILCS
5/11-74.4-1 et seq. (West 1994); (2) due to the failure to amend the existing
TIF plan, the Oriental Theater Project could not proceed and therefore the
requisite necessity for taking the Oliver Building was lacking; (3) the City
failed to provide the requisite certainty as to whether or not the Oliver
Building was at risk of condemnation; and (4) the quick-take provisions of
Section 5/7-103 of the Illinois Code of Civil Procedure are unconstitutional
special legislation. For the following reasons we affirm.
Defendants, Golden P Corporation and Peter Palivos, respectively, are the
manager and owner of the Oliver Building, and were among the defendants named
in the City's complaint. Palivos had purchased the Oliver Building for
$2,000,000 in late 1996 and allegedly invested $750,000 in it. The rear of
the Oliver Building abuts the Oriental Theater Building which faces onto
Randolph Street. The Oriental Theater has not operated as a commercial
theater since 1981. In 1994, Livent Inc. ("Livent"), a live entertainment and
development company headquartered in Toronto, secured an option to purchase
the Oriental Theater. Livent then notified the City that they had secured the
option on the Oriental Theater. The City's consultant for North Loop
development, M.S. Equities Development Company, commissioned a report which in
January of 1995 determined that the stage area of the Oriental Theater was too
shallow to accommodate modern live musical productions and that this failing
would need to be remedied by expanding the stage area back into the Oliver
Building before renovation of the Oriental Theater could proceed. A Chicago
real estate developer retained by Livent in March of 1995 valued the building
at less than $3,000,000. On April 14, 1995, Palivos told Livent he would sell
the Oliver Building and the adjacent Delaware Building for $10,000,000. No
further negotiations were had between Palivos and Livent.
On December 1, 1995, the City signed a letter of understanding with
Livent agreeing to acquire the Oliver Building on behalf of Livent to assist
in the redevelopment of the Oriental Theater. By letter dated January 11,
1996, the City informed Palivos that it intended to acquire the Oliver
Building.
A public hearing on the Oriental Theater Project was held by the
Community Development Commission ("CDC") on January 29, 1996. At this
hearing, the CDC adopted two resolutions: the first authorized publication of
a notice of the City's intent to negotiate a redevelopment agreement with
Livent and to request alternative proposals, and recommended to the Chicago
City Council that Livent be designated as the developer if no other responsive
alternative proposals were received; the second authorized the City to
advertise its intent to enter into a negotiated sale of the Oliver Building to
Livent. On January 31, 1996, these public notices were run in the Chicago
Sun-Times. The notices provided 30 days for members of the public and other
developers to make alternative proposals and bids. No alternative proposals
were submitted. On March 22, 1996, Palivos appeared at the Chicago City
Council Committee on Finance and expressed his opposition to the acquisition
of the Oliver Building.
On March 26, 1996, the Chicago City Council passed two "Substitute
Ordinances." The first ordinance declared that the redevelopment of the
Oriental Theater property and the Oliver Building Property would be "in
accordance with" the North Loop Tax Increment Financing Project ordinances
passed in June, 1984. ("1984 TIF Plan"). It further provided that Livent was
to be the developer of the Oriental Theater Project and that the City would
finance the acquisition of the Oliver Building with tax increment financing
and then convey the Oliver Building to a Livent subsidiary for assemblage with
the Oriental Theater. The second ordinance found it necessary to acquire the
Oliver Building and authorized its acquisition pursuant to the City's home
rule power in a quick take proceeding.
On April 9, 1996, the City of Chicago filed an eminent domain action to
acquire the Oliver Building. The City subsequently filed a motion for vesting
of title and requested that the trial court assign the matter for a "quick
take" hearing pursuant to section 5/7-103 of the Illinois Code of Civil
Procedure. 735 ILCS 5/7-103 (West 1994). On May 15, 1996, defendants filed
an amended traverse and motion to dismiss, challenging the City's authority to
condemn the Oliver building and invocation of quick take procedures because
the ordinances authorizing the condemnation of the Oliver Building changed the
nature of the redevelopment project and the condemnation affected the general
land uses established in the North Loop 1984 TIF Plan. Defendants further
alleged that the renovation of the Oriental Theater also changed the nature of
the redevelopment project and affected the general land uses established in
the North Loop 1984 TIF Plan. The defendants asserted that these changes
required the City to go through the approval process required by section 11-
74.4-5(c) of the TIF Act (65 ILCS 5/11-74.4-5(c)(West 1994)). The defendants
also claimed that the City failed to provide the requisite certainty that the
Oliver Building was at risk of condemnation. The defendants further claimed
that the quick-take statute is unconstitutional special legislation.
The record indicates that at the hearing before the trial court on the
factual issues, the City submitted the ordinances, resolutions and offers
setting forth the purpose and necessity of the acquisition of the subject
property and establishing the blighted character of the subject area. In
rebuttal, defendants presented testimony of certain City officials called as
adverse witnesses, as well as the testimony of representatives of Livent. On
August 5, 1996, the trial court entered an order denying defendants' traverse
and motion to dismiss. The trial court found that the Oliver Building was
located in a blighted commercial area and that the Chicago City Council had
passed ordinances authorizing the condemnation proceedings. The trial court
found that the condemnation of the Oliver Building did not change the general
land use or the nature of the redevelopment project and therefore the City was
not required to comply with the notice requirements of the TIF Act before
acquiring the Oliver Building. 65 ILCS 5/11-74.4-5(a)(c)(West 1994).
As to defendants' assertion that the agreement between the City and
Livent regarding the renovation of the Oriental Theater violated the TIF Act,
and therefore the taking of the Oliver Building was not necessary, the court
ruled that the agreement was not before it. The defendants assert that the
trial court ruled that the renovation agreement violated the notice provisions
of the TIF Act. However, the record reveals that the trial court stated it
would not consider whether the agreement between the City and Livent as to the
renovation of the Oriental Theater required the City to follow the notice
requirements of section 5/11-74.4-5(c) of the TIF Act. The trial court
further ruled that the City provided the defendants with the requisite
certainty that the Oliver Building was at risk for condemnation. The trial
court also rejected defendants' argument that the quick take statute is
unconstitutional special legislation. The trial court subsequently denied
defendants' motion for reconsideration, at which time defendants filed an
interlocutory appeal of both aforementioned rulings as a matter of right
pursuant to Supreme Court Rule 307 (134 Ill.2d R.307) and 735 ILCS 5/7-104
(West 1994).
We first examine defendants assertion that since the 1984 TIF Plan
designated the Oliver Building as "rehabilitation without acquisition," the
City was required to amend the TIF plan before acquiring it for the purpose of
assembling it with the Oriental Theater. Defendants further claim that since
the 1984 TIF plan did not mention the Oriental Theater, the City was required
to amend the TIF plan before making TIF funds available to Livent to purchase
and rehabilitate it. Defendants argue that the City's failure to amend the
TIF plan to provide for the Oriental Theater Project makes the stated
subsequent use of the Oliver Building unlawful and therefore its taking
unnecessary as a matter of law. Specifically, defendants assert that the City
changed the nature of the redevelopment project without going through the
approval process required by section 5/11-74.4-5(c) of the TIF Act. (65 ILCS
5/11-74.4-5(c)(West 1994)). Section 11-74.4-5(c) of the TIF Act provides:
"After the adoption of an ordinance approving a redevelopment plan or
project or designating a redevelopment project area, no ordinance
shall be adopted altering the exterior boundaries, affecting the
general land uses established pursuant to the plan or changing the
nature of the redevelopment project without complying with the
procedures provided in this division pertaining to the initial
approval of a redevelopment plan project and designation of a
redevelopment project area." 65 ILCS 5/11-74.4-5(c)(West 1994).

The procedures pertaining to the initial approval of a redevelopment
plan project include a requirement of a public hearing to allow "interested
person(s) or affected taxing district(s)" to file written objections to the
plan with the municipal clerk and to be heard orally as to issues embodied in
the plan.
Upon a municipality's determination that an area qualifies as a
redevelopment project area as defined in section 5/11-74.4-3(p) of the TIF
Act, it may then develop a redevelopment plan. Section 5/11-74.4-3(n) of the
Act provides, in pertinent part:
"'Redevelopment plan' means the comprehensive program of the
municipality for development or redevelopment intended by the payment
of redevelopment project costs to reduce or eliminate those conditions
the existence of which qualified the redevelopment project area as a
'blighted area' or 'conservation area' or combination thereof or
'industrial park conservation area' and thereby to enhance the tax
bases of the taxing districts which extend into the redevelopment
project area." 65 ILCS 5/11-74.4-3(n)(West 1992).

Section 5/11-74.4-3(n) of the Act requires that the redevelopment plan be in
writing and meet certain other criteria not germane to this appeal.
Following creation of the redevelopment project area and approval of a
redevelopment plan and project, the municipality is granted the power, among
other things, to:
"(c) Within a redevelopment project area, acquire by *** eminent
domain, own, convey,*** or dispose of land and other property, real or
personal, *** all in the manner and at such price the municipality
determines is reasonably necessary to achieve the objectives of the
redevelopment plan and project; (d) Within a redevelopment project
area, clear any area by demolition or removal of any existing
buildings and structures; (e) Within a redevelopment project area,
renovate or rehabilitate or construct any structure or building." 65
ILCS 5/11-74.4(c,d,e)(West 1994).

A review of the City's efforts to develop the North Loop Area shows that
in March of 1979, the Chicago City Council enacted an ordinance declaring the
North Loop Development Area a blighted commercial area. The City's goals for
the North Loop were set out in the Redevelopment Plan for Blighted Commercial
Area North Loop, approved by the City Council on March 28, 1979 ("1979
Redevelopment Plan"). As originally enacted, the redevelopment plan contained
an acquisition map which designated the Oliver Building as "not to be
acquired." The Redevelopment Plan noted however that such acquisition status
would change where;
"the exclusion of the property has a detrimental effect on the
disposition and redevelopment of the abutting project property or
* * * if the existing owner or owners are unwilling or unable * * *
to conform to the objectives of the Plan."
The Chicago City Council amended the 1979 Redevelopment Plan on October
27, 1982, when it passed the North Loop Guidelines For Conservation and
Redevelopment ("1982 Redevelopment Guidelines"). The 1982 Redevelopment
Guidelines deleted all reference to the "not to be acquired" language.
The new plan contained a map of the entire redevelopment area, including
the block that the Oliver Building is located on, Block 36. This map
designated Block 36 as containing "Theater Row Development" and "Satellite
Cultural Facilities."
Under the heading "Theater Row Development," the plan provided:
This North Loop area once contained more than a dozen theaters and
movie houses and many restaurants and lounges whose existence was
directly related to successful theater operations. Through the years
both theater programming and consumer habits have changed, and the
number of entertainment facilities has been reduced while the quality
of programming has generally declined. However, the redevelopment of
the North Loop, with the impending construction of hotel rooms,
residential units and major new office spaces can and will include the
appropriate reuse of certain existing facilities - The Chicago Theater
and the Selwyn and Harris Theaters - and the provision of new theater
facilities and new entertainment related retail establishments. This
should occur in a coordinated manner between Lake and Randolph
Streets.

In conjunction with development of a focus for cultural and
entertainment facilities along an axis running from the Chicago
Theater to the Selwyn and Harris Theaters, an arcaded or covered
walkway or concourse would provide the necessary intimacy and human
scale.

The 1982 Redevelopment Guidelines provided for up to 300,000 square feet
of retail, cultural, and entertainment uses for Block 36. It specifically
provided, "[t]here are no minimum requirements for office space or residential
space in the project area."
The 1982 Redevelopment Guidelines specifically mentioned seven buildings
within the area, including the Oliver Building, as being "retained." However,
the 1982 Redevelopment Guidelines provided that as to these seven structures,
"[t]he City can and will seek to have such structures incorporated into larger
redevelopment parcels, permitting redevelopment on the overall parcel."
Further, "[w]hen existing structures are incorporated into or attached
to new construction (such as grade pedestrian bridges), the developer must be
sensitive to the impact on the character or "personality" of the building
being retained. The joining of old and new structures should be done with
sensitivity to architectural functions, aesthetics and style in both
structures without impairing basic goals or economic viability."
The facade of the Oliver Building is designated as a Chicago Landmark
and it will be retained after the Oriental Theater is assembled with the
Oliver Building.
The Chicago City Council turned to the TIF Act for assistance in funding
the North Loop Redevelopment Plan. To permit the use of the TIF funds to
finance North Loop Projects, the Chicago City Council enacted TIF ordinances
on June 20, 1984, creating the North Loop Tax Increment Redevelopment Project
("1984 TIF Plan"). The ordinances authorized acquisitions within the TIF
district, and stated the City Council's intention not to diminish the prior
authority to acquire structures in the Blighted Commercial Area North Loop
which was contained within the TIF district.
Under the heading "General Land Use Plan", the 1984 TIF Plan provided,
"[t]his Redevelopment Plan conforms to and adopts the North Loop Guidelines
for Conservation and Redevelopment approved by the City Council in October,
1982." It also provided, "[n]ew patterns of uses can be established: hotel
and residential uses along Wacker Drive, entertainment and cultural facilities
between Lake and Randolph Streets..." Finally, under this same heading, was
contained, "Cultural and Entertainment Uses - Cultural and entertainment uses
are permitted throughout the Redevelopment Project Area but should be
concentrated in the blocks between Lake Street and Randolph Street, tying the
Chicago Theater to the Selwyn/Harris Theaters."
Defendants point to language found under the heading "Phasing and
Scheduling of Redevelopment Project" which provided that the third phase of
the Redevelopment Project would include initiation of redevelopment activity
within Blocks 35 and 36:
"Block 36 Designated property within this block will be acquired,
cleared and sold to a private developer for possible assembly with
other not-to-be acquired property for construction of a mixed-use
complex including approximately 300,000 square feet of retail,
approximately 700,000 square feet of office and approximately 200,000
square feet of residential or hotel."

However, the initial language under the heading "Phasing and Scheduling
of Redevelopment Project" also provided "[t]he representations as to amount of
space required for usage are necessarily approximate and may be revised
pursuant to negotiation between the City and developer, and in accordance with
the General Land Use Plan provisions of the Redevelopment Plan and the minimum
and maximum development requirements as contained in the North Loop Guidelines
for Conservation and Redevelopment approved by the City Council in October,
1982."
In interpreting a statute, the primary rule of statutory construction,
to which all other rules are subordinate, is to ascertain and give effect to
the true intent and meaning of the legislature. In re Application for
Judgment and Sale of Delinquent Properties for the Tax Year 1989, 167 Ill. 2d 161, 168 (1995). In order to determine the legislative intent, courts must
read the statute as a whole, and all relevant parts must be considered.
People v. Lewis, 158 Ill. 2d 386, 389 (1994). Each section should be
construed in connection with every other section. Bonaguro v. County Officers
Electoral Board, 158 Ill. 2d 391, 397 (1994). Courts should look to the
language of the statute as the best indication of legislative intent, giving
the terms of the statute their ordinary meaning. In re Application for
Judgment, 167 Ill. 2d at 168. Where the statutory language is clear, courts
should give effect to the statute as enacted without considering extrinsic
aids for construction. Bogseth v. Emanuel, 168 Ill. 2d 507, 513 (1995).
The 1984 TIF Plan's definition of General Land Uses fully adopted the
1982 Redevelopment Guidelines which provided for Block 36 to contain the
"Theater Row Development" which called for new theater facilities to be
provided. Further, the 1984 TIF Plan's general land uses provided for
entertainment and cultural facilities to be concentrated in Block 36.
Defendants' argument that, "condemnation of the Oliver Building will
produce an effect upon the land uses established for the Oliver Building and
Block 36" under the 1984 TIF Plan and therefore violates the TIF Act is based
on a misreading of the TIF Act. Section 5/11-74.4-5(c) imposes notice
requirements when an ordinance is adopted which: (1) alters the exterior
boundaries of the original ordinance; or (2) affects the general land uses
established pursuant to the plan; or (3) changes the nature of the
redevelopment project. 65 ILCS 5/11-74.4-5(c)(West 1994)(emphasis added).
A plain reading of section 5/11-74.4-5(c) shows that the acquisition of
the Oliver Building would have to affect the general land uses as determined
under the 1984 TIF Plan and the 1982 Redevelopment Guidelines to trigger the
notice requirements. Both plans' general land uses provided for new
entertainment and cultural facilities to be located on Block 36, tying the
Chicago Theater to the Selwyn/Harris Theaters.
The Chicago Theater is on State Street and the Selwyn/Harris Theaters
are on Dearborn Street. All three of these theaters are between Lake and
Randolph Streets. The Oliver Building and
Oriental Theater are in block 36 between Lake and Randolph and between State
and Dearborn. The location of a new theater at the site of the Oliver
Building and the Oriental Theater therefore "ties" the Chicago Theater to the
Selwyn/Harris Theaters.
Defendants' argument that the condemnation of the Oliver Building
changes the land use is based on a portion of the 1984 TIF Plan which referred
to the Oliver Building as "rehabilitation without acquisition."
The same 1984 TIF Plan provides:
"[t]he City may determine that to meet the renewal objectives of this
Redevelopment Plan, other properties in the Redevelopment Project area
not scheduled for acquisition should be acquired, or certain property
currently listed for acquisition should not be acquired."

The trial court said that it considered only the 1984 Plan in
determining that the condemnation of the Oliver Building did not change the
general land use.
While the trial court's ruling was correct, it should also have looked
to the 1982 Redevelopment Guidelines since they were incorporated into the
1984 TIF Plan.
In addition to looking at the 1984 TIF Plan and the 1982 Redevelopment
Guidelines to determine whether the condemnation of the Oliver Building
affected the general land uses of the redevelopment project, we must also look
at the scope of the project itself.
Since the beginning of the project, the City has acquired more than two
dozen parcels of property, removing most blighted structures and transferring
the acquired properties for redevelopment. The City's acquisitions have
resulted in a dramatic revitalization of the area, including the construction
of the Leo Burnett Building, the Renaissance Hotel, the Donnelly Building, the
Loop Transportation Center and the North Dearborn Street Apartments.
The North Loop Development Area encompasses more than 26 acres of land,
or approximately one million square feet. The Oliver Building covers
approximately 4,000 square feet within this Area. Thus, the Oliver Building
property makes up .4% (4/1,000) of the Area. A change in such a small part of
a redevelopment area does not constitute a change in the general land use or a
change in the nature of the existing TIF project. This is especially true
here, given the language of the ordinances permitting acquisition and the
stated intention of the 1984 TIF Plan to provide for theater and entertainment
uses in the specific block in which the Oliver Building is located.
Defendants also argue that since the 1996 Substitute Ordinances say that
the condemnation of the Oliver Building is necessary in order to assemble it
with the Oriental Theater, the agreement between the City and Livent as to the
renovation of the Oriental Theater must meet the requirements of the TIF Act
as well or the City lacks the necessity to take the Oliver Building.
Defendant's efforts to contest this condemnation based on the allegation
that another project did not meet the requirements of the TIF Act, go against
several long-standing principles of eminent domain law. The instant case is
factually very similar to the case of City of Chicago v. R. Zwick Co., 27 Ill. 2d 128 (1963). In that case, areas of the near west side of Chicago had
been declared slum and blighted areas in 1956. Most of the area was cleared
and plans were made for its redevelopment as a residential area. Early in
1961 an agreement was reached with the trustees of the University of Illinois
for the university's Chicago campus to be located on some of these tracts.
Traverses were filed on various grounds.
In affirming the trial court's actions in overruling these traverses, the
Illinois Supreme Court held that land clearance in a slum area satisfies
public use, so that the type of redevelopment has no relevance in a
condemnation proceeding. Further, the court rejected the defendant property
owners' assertion that since the City failed to comply with the Federal
Housing Act of 1949 (42 U.S.C. secs. 1441-1462) and the project was being
financed in part by federal money, the City's condemnation complaint should
have been dismissed. The Court cited the legal principle that, "[a] condemnee
has no legal interest in the source of a condemnor's funds." Zwick, 27 Ill. 2d
at 132. The court further held that the Federal Housing Act, "did not confer
any legal rights upon owners and residents in a slum clearance area separate
from their positions as members of the general public." Zwick, 27 Ill. 2d at
133.
In the instant case, defendants argue that we must first determine
whether the agreement between the City and Livent as to the renovation of the
Oriental Theater complied with the requirements of the TIF Act before we can
say that the condemnation of the Oliver Building was a necessity.
The term "necessary," for purposes of condemnation proceedings, is
subject to a definition other than that to which the term is subject in common
discourse. Department of Transportation v. Keller, 127 Ill. App. 3d 976, 980
(1984). The Illinois Supreme Court has defined necessity with respect to the
exercise of the power of eminent domain as meaning " 'expedient,' 'reasonably
convenient,' or 'useful to the public,' and cannot be limited to an absolute
necessity. Conversely, the word 'necessary' does not mean 'indispensable'...
or 'absolute necessity.' Department of Public Works and Buildings v. Lewis,
411 Ill. 242, 245 (1952), cited in Alsip Park District v. D & M Partnership,
252 Ill. App. 3d 277, 287 (1993).
This court has recently addressed the issue of proving necessity in an
eminent domain action filed under the TIF Act in City of Batavia v. Sandberg,
286 Ill. App. 3d 991, (1997). There it was held:
"The determination of necessity is a legislative function that should
be given great deference by the trial and reviewing courts.
Department of Public Works & Buildings v. Keller, 61 Ill. 2d 320, 325
(1975). Specifically, in regard to actions to acquire property under
the (TIF) Act, it is not for a court to interfere with the legislative
determination unless there is a showing of a clear abuse of discretion
by the municipality. See Village of Wheeling v. Exchange National
Bank, 213 Ill. App. 3d 325, 334 (1991). The general rule, as stated
in City of Chicago v. Vaccarro, 408 Ill. 587, 597 (1951), is "that
where the legislature has delegated to a corporation the authority to
exercise the power of eminent domain, the corporation has also the
authority to decide on the necessity for exercising the right, and its
decision will be conclusive in the absence of a clear abuse of the
power granted." Batavia, 286 Ill. App. 3d 991, at 1003 (1997).

Here, defendants do not argue that the renovation of the Oriental
Theater will not satisfy the goals for the redevelopment of the North Loop nor
do they question the public purpose of such renovation. They argue that the
renovation of the Oriental Theater changed the general land uses of Block 36
and therefore the notice requirements of section 5/11-74.4-5 of the TIF Act
had to be complied with. In the absence of this compliance, the renovation
project was unlawful.
The trial court found that the issue of whether TIF procedures were
properly followed as to the renovation of the Oriental Theater was not before
it in this eminent domain case. The trial court pointed out that the City
based its condemnation complaint upon its Home Rule Powers. The trial court
found that the City's condemnation complaint could have been based on the
authority provided under Commercial Renewal and Redevelopment Areas or under
Business District Development and Redevelopment 65 ILCS 5/11-74.2-3 (West
1994). The trial court correctly held that the City could have condemned the
Oliver Building under the TIF Act as well. It held that these powers to
condemn are concurrent, and that a municipality has the right to chose under
which particular section the condemnation will proceed. Based on our finding
that the condemnation of the Oliver Building did not change the general land
use or the nature of the redeveloping project, we need not decide this issue.
Defendants' cite Henry County Board v. Village of Orion, 278 Ill. App.
3d 1058, (1996), for its holding that a city ordinance changing a
redevelopment plan could be invalidated for failing to follow the notice
procedures of sections 5/11-74.4-5(a) and (c) of the TIF Act. In that case,
the village had added an industrial park to a previously announced
redevelopment plan and the village increased the private developer's monies by
5 percent. The appellate court agreed with the plaintiff taxing districts
affected by these changes that the notice requirements of the TIF Act had to
be complied with. We find this case to be inapposite. Here, no taxing
district is complaining as to any lack of notice and both the 1984 TIF Plan
and the 1982 Redevelopment Guidelines provided for entertainment uses in Block
36.
When a party challenges a municipality's TIF ordinances, that party is
required to overcome the ordinances' presumptive validity by clear and
convincing evidence. Castel Properties Ltd. v. City of Marion, 259 Ill. App.
3d 732, 439 (1994). Clear and convincing evidence is that "quantum of proof
that leaves no reasonable doubt in the mind of the fact finder as to the truth
of the proposition [stated]." Bazydlo v. Volant, 164 Ill. 2d 207, 213,
(1995). The fact finder's determinations will not be disturbed unless clearly
contrary to the manifest weight of the evidence. Reed-Custer Community School
District No. 255-U v. City of Wilmington, 253 Ill. App. 3d 503, (1993). The
decision of the trial court is against the manifest weight of the evidence if
a review of the record clearly establishes that the decision opposite to the
one reached by the trial court was the proper result. Henry County Board, 278
Ill. App. 3d at 1062, citing In re Knapp, 231 Ill. App. 3d 917, (1992).
The trial court in this case determined that the City's acquisition of
the Oliver Building was necessary and in conformance with the TIF Act, and
defendants have not shown these determinations to be contrary to the manifest
weight of the evidence.
The defendants' argument that the taking of the Oliver Building was
"unnecessary" because the agreement between the City and Livent for the
renovation of the Oriental Theater violated the TIF Act, is contrary to the
holding in City of Batavia v. Sandberg, 286 Ill. App. 3d 991 (1997) as it
relates to the determination of necessity. After our review of the record,
and applying the above principles of law to the facts, we find that the
defendants failed to overcome the presumption of the validity of the 1996
Substitute Ordinances through clear and convincing evidence.
As to defendants' assertions that the City failed to provide them with
the requisite certainty that the Oliver Building was at risk of condemnation,
we disagree.
In rejecting defendants' argument on this issue, the trial court cited
the 1979 ordinance which declared the North Loop Development Area a blighted
commercial area. This ordinance provided that the Oliver Building's status as
"not to be acquired" would change where its exclusion would have a detrimental
effect on the redevelopment of the abutting property. The court cited the
1982 ordinances in which the City authorized the acquisition of buildings
under identical language as used in the 1979 ordinance. The trial court cited
the 1984 TIF Plan which provided that, "[t]he City may determine that to meet
the renewal objective of this redevelopment plan, other properties in the
redevelopment project area not scheduled for acquisition should be acquired or
certain property currently listed for acquisition should not be acquired." We
agree with the trial court's finding that these plans were not vague,
uncertain or indefinite as the defendants argue.
The City argues that every owner holds property with the knowledge that
it might be acquired for public purposes. "Every private owner of property
holds his title subject to the lawful exercise of the sovereign power of
eminent domain." Deerfield Park District v. Development Corp., 22 Ill. 2d 132, 137 (1961).
The owners assert that a city ordinance must provide a property owner
with the requisite certainty about whether his property is at risk of being
condemned, and that if it fails to do so, the ordinance violates due process
guarantees, relying on City of Wheaton v. Sandberg, 215 Ill. App. 3d 220, app.
denied, 142 Ill. 2d 666 (1991).
In City of Wheaton, the appellate court reviewed a village ordinance
which required only "vacancies in all or part of any building" as a factor to
qualify an area as "blighted." The appellate court found the phrase
"vacancies in all or part of any building" to be vague and overly broad. City
of Wheaton, 215 Ill. App. 3d at 227. The appellate court pointed out that
almost all commercial buildings are partially vacant at one time or another.
The court held that the language of the village ordinance differed from the
requirements listed in the Commercial Renewal and Redevelopment Areas Act (735
ILCS 5/11-74.2-2(b)(West 1994)) in determining whether an area is a commercial
blighted area which qualified for redevelopment. City of Wheaton, 215 Ill.
App. 3d at 228.
In the instant case, there is no question raised as to whether the North
Loop Area is a blighted commercial area. The Chicago City Council found it to
be so in 1979, 1982, 1983, 1984 and again in 1996. Defendants do not contest
the designation of this area as being a blighted commercial area. Further,
the ordinances applicable to the Blighted Commercial District North Loop
clearly put defendants on notice that the Oliver Building could be condemned.
The property was located in a blighted commercial district which was being
redeveloped since at least 1979. The Oliver Building abutted another piece of
property that had not yet been developed. All of these facts gave notice to
defendants that the Oliver Building could be condemned.
Finally, defendants contend that the city cannot acquire the Oliver
Building by quick-take because the provisions of section 5/7-103(12) of the
Illinois Civil Code of Procedure are unconstitutional special legislation.
Section 7-103(12)of the Code of Civil Procedure (735 ILCS Act 5) provides:
"In any proceeding under the provisions of this Article as follows:
...(12) after receiving the prior approval of the City Council by a
municipality having a population of more than 500,000 for the purposes
set forth in Section 11-61-1A and Division 74.2 and 74.3 of Article 11
of the Illinois Municipal Code, and for the same purposes when
established pursuant to home rule powers; ... the plaintiff, at any
time after the complaint has been filed and before judgment is entered
in the proceeding, may file a written motion requesting that
immediately or at some specified later date, the plaintiff either be
vested with the fee simple title (or such lessor estate interest or
easement, as may be required), to the real property, or specified
portion thereof, which is the subject of the proceeding, and be
authorized to take possession of and use such property..."

Defendants argue that because it only applies to cities with population
exceeding 500,000 (the City of Chicago), subsection (12) designates Chicago as
a special class in violation of the provision prohibiting special legislation.
They point out that a population classification, "will survive a special
legislation challenge only (1) where founded upon a rational difference of
situation or condition existing in the persons or objects upon which the
classification rests, and (2) where there is a rational and proper basis for
the classification in view of the objects and purposes to be accomplished."
In re Village of Vernon Hills, 168 Ill. 2d 117, 123 (1995).
The trial court found that the difference of situation or condition
prong of this test was met by the difference in density of the central
business area in Chicago as compared to elsewhere in Illinois and that this
difference was a rational one. The court also found that the difference in
the size of the buildings and the numbers of tenants in those buildings were
rational differences supporting a population classification for the quick-take
statute.
The trial court found that as to the second prong of the test, there was
a rational basis for the population classification in view of the purposes to
be accomplished. The court found that it is a proper goal to redevelop
blighted areas as quickly as possible and that in Chicago, the large numbers
of tenants in buildings to be redeveloped will mean that it will take a longer
time to relocate them. The trial court also found that it would take a longer
time to demolish or renovate buildings in Chicago because of their size.
Finally, the trial court found that due to the size of the buildings in
Chicago, it is often more difficult to determine who the interested parties
are and to determine how the compensation is to be divided among the owners
and the tenants. The complexity of the financing of the redevelopment
projects within Chicago also makes the issue of timing extremely important.
The City also points out that nowhere else in Illinois is there likely to be
such a large commercially blighted area, with many similar projects located
almost side-by-side.
As early as 1930, the Illinois Supreme Court held that population
classifications distinguishing Chicago from the rest of the state are presumed
valid and will be voided only when found to be clearly arbitrary. Mathews v.
City of Chicago, 340 Ill. 120 (1930).
It has also recently held, "legislative action that focuses on a
specific area of the State will be upheld if a rational basis exists for
distinguishing that area from the rest of the State." Cutinello v, Whitley,
161 Ill. 2d 409, 417 (1994). Also, "[the rational basis test] requires only
that there be a reasonable relationship between the challenged legislation and
a conceivable, and perhaps unarticulated, governmental interest." Cutinello,
161 Ill. 2d at 420 (1994)(emphasis added) .
We find that the trial court's reasoning was correct and we reject
defendants' contention that the quick-take provisions of the Code of Civil
Procedure are unconstitutional special legislation.
For the foregoing reasons, the judgment of the circuit court is
affirmed.
AFFIRMED.
THEIS, J. and ZWICK, J., concur.