6/16/2023 12:25 PM

MK
 Candice Adams
e-filed in the 18th Judicial Circuit Court
DuPage County
ENVELOPE: 23164051
2023MR000371
FILEDATE: 6/15/2023 2:29 PM
Date Submitted: 6/15/2023 2:29 PM
Date Accepted: 6/16/2023 11:06 AM
STATE OF ILLINOIS SW

IN THE CIRCUIT COURT FOR THE EIGHTEENTH JUDICIAL CIRCUIT

DUPAGE COUNTY, ILILNOIS

RSCK HOLDINGS LLC, an Illinois )

limited liability company, )
)
Plaintiff, )
)
v. ) Case No.2023MR000371
)
CITY OF ELMHURST, an Illinois )
home rule municipal corporation, )
)
Defendant. )

COMPLAINT

Plaintiff, RSCK HOLDINGS LLC, an Illinois limited liability company, by and through

its attorneys, the BERNSTEIN LAW FIRM, LLC, hereby complains of Defendant, the CITY OF

ELMHURST, an Illinois home rule municipal corporation, as follows:

This matter stems from the efforts of Plaintiff, RSCK Holdings LLC (“RSCK”) to

redevelop property it owns in the downtown Central Business Core (“CBC”) zoned area within

the City of Elmhurst (“City”), which is the area designated for the tallest buildings and most intense

development within the City. RSCK proposed a mixed-use luxury condominium over retail

development with a fully code-compliant building, and a land use that was permitted of right,

except for the building height which required a conditional use. In this regard, the City permits

buildings in the CBC district to be 77 feet in height as of right and up to 125 feet as a conditional

use. Because the proposed RSCK building exceeded 77 feet, RSCK was required to submit a

conditional use application for the proposed development.

As will be discussed in detail below, the City’s denial of RSCK’s conditional use permit

was: (a) arbitrary, irrational, unreasonable and unrelated to the public health, safety or general
welfare as defined by Elmhurst’s three appliable legislative proclamations; (b) in conflict with the

City’s own legislative declarations and Illinois Supreme Court precedent; and (c) therefore,

violated RSCK’s substantive due process rights under the U.S. and Illinois Constitutions.

In addition, solely because the RSCK property had over 75 feet of frontage, the City’s

newly adopted 2019 planned unit development (PUD) regulations were triggered and required

RSCK to engage in an over year-long process of zoning meetings and proceedings. During the

lengthy process, RSCK was denied any and all economically viable use of its property and spent

hundreds of thousands of dollars evaluating and studying modifications to the project at the express

direction of the City. At the end of this compulsory process, the City failed to consider the project

alternatives it required RSCK to evaluate and present, denied RSCK the opportunity to be heard

during deliberations on the denial of RSCK's requested conditional use, and ultimately approved

a PUD that was never proposed by RSCK and did not exist. As detailed hereafter, the foregoing

actions taken by the City also violated RSCK’s procedural due process rights and constituted a

regulatory temporary taking.

COUNT ONE

DECLARATORY RELIEF UNDER 735 ILCS 5/2-701

“AS APPLIED” SUBSTANTIVE DUE PROCESS CHALLENGE

TO ARBITRARY DENIAL OF CONDITIONAL USE PERMIT
FOR HEIGHT EXCEEDING 77 FEET AND LESS THAN 125 FEET

I. OVERVIEW AND INTRODUCTION.

1. On March 20, 2023, the City made a legislative decision to deny RSCK a

conditional use permit to construct a mixed-use luxury condominium building over retail

development (the “Project”) at: (a) the originally proposed building at 109 feet in height (Option

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A); (b) the alternatively proposed building at 111 feet tiering down to 98 feet in height (Option B);

or (c) the alternatively proposed building at 98 feet in height (Option C).

2. The denial of RSCK’s conditional use for height between 98 feet and 109 feet did

not have a real or substantial relation to the public health, safety, morals, or general welfare of

Elmhurst (“Elmhurst General Welfare”), as defined by the City’s three applicable legislative

proclamations: (a) the 2016 Downtown Plan; (b) the 2017 Zoning Amendments; and (c) the 2018

TIF Redevelopment Plan, as detailed in Sections V, VI and VII below. The legislative justification

for the denial also stands in direct conflict with the Illinois Supreme Court’s opinion in City of

Chicago Heights v. Living Word Outreach Full Gospel Church and Ministries, Inc., 196 Ill.2d 1

(2001).

3. Denial of the conditional use permit imposes a hardship upon RSCK in that the

Project will lose between eight and twelve condominium units, which will reduce the gross sales

price of the finished Project to between $8.8 million - $13 million. This loss of gross revenue

destroys the economic viability of the Project.

4. The gain to the public welfare of the people of Elmhurst achieved by denial of the

conditional use for height is de minimis in comparison to the economic hardship the denial imposes

on RSCK.

II. THE PARTIES AND PROPERTY AT ISSUE.

5. RSCK is an Illinois limited liability company with its principal address located at

1220 Kensington Road, Suite 220, Oak Brook, DuPage County, Illinois 60523. RSCK is the owner

of the property that is subject to the conditional use denial, and was the applicant which sought the

conditional use.

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 6. The City is an Illinois home rule municipal corporation with its principal address

located at 209 North York Street, Elmhurst, DuPage County, Illinois 60126.

7. The property (“Property”) that is the subject of RSCK’s conditional use application

is as follows:

Legal description:

THE SOUTH 10.0 FEET OF LOT 9 AND LOT 12 (EXCEPT THE

SOUTH 83 FEET 10 INCHES THEREOF) IN BLOCK 1 IN THE
TOWN OF COTTAGE HILL, BEING A SUBDIVISION IN THE
EAST HALF OF THE NORTHEASTER QUARTER OF SECTION
2, TOWNSHIP 39 NORTH, RANGE 11 EAST OF THE THIRD
PRINICIPAL MERIDIAN, ACCORDING TO THE PLAT
THEREOF RECORDED JUNE 10, 1971 AS DOCUMENT 14044,
IN DUPAGE COUNTY, ILLINOIS; and THE NORTH 40.0 FEET
OF THE SOUTH 50.0 FEET OF LOT 9 IN BLOCK 1 IN THE
PLAT OF THE TOWN OF COTTAGE HILL, BEING A
SUBDIVISION IN THE EAST HALF OF THE NORTHEAST
QUARTER OF SECTION 2, TOWNSHIP 39 NORTH, RANGE 11
EAST OF THE THIRD PRINCIPAL MERIDIAN, ACCORDING
TO THE PLAT THEREOF RECORDED JUNE 10, 1871 AS
DOCUMENT 14044, IN DUPAGE COUNTY, ILLINOIS.

Common Addresses of Property: 196-202 North York Road

Elmhurst, Illinois 60126
PINs: 06-02-214-044
06-02-214-043

III. THE CITY HAS LEGISLATIVELY DEFINED THE LAND USE POLICIES THAT
BENEFIT THE ELMHURST GENERAL WELFARE IN DOWNTOWN
ELMHURST.

8. The ultimate legal determination that must be made in every “as applied”

substantive due process case is whether the existing restriction on the use of the property (in this

case, limiting the height of RSCK’s Project to no more than 77 feet) is being applied unreasonably

or arbitrarily. Sinclair Pipe Line Co. v. Village of Richton Park, 19 Ill.2d 370, 377 (1960).

9. The Court must decide: (a) whether the 77-foot building height restriction imposed

by the City has a basis in the Elmhurst General Welfare, in light of the uses to which surrounding
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property is, or may lawfully be put; (b) the care with which the City has undertaken to plan the

land use where the Property is located; and (c) the evidence or lack of evidence that the City has a

need for a mixed-use residential over retail redevelopment of 109 feet or 98 feet in height at this

location. Sinclair Pipe Line Co., supra.

10. The City has an unusually thorough and specific series of three separate legislative

land use policy decisions that: (a) detail the care with which the City has planned the land uses in

its downtown; (b) clearly define the current uses of surrounding property as currently constructed;

(c) clearly detail the City’s plan to redevelop the downtown area; and (d) define with clarity the

uses (including the height of buildings) to which the surrounding area may lawfully be put.

11. Each of these three separate legislative land use policy decisions was adopted by

the City to define future land uses applicable to its downtown that will benefit and advance the

Elmhurst General Welfare.

12. This three-part legislative history establishes with clarity why RSCK’s proposed

Project, with a conditional use granted for height between 98 feet and 109 feet, is not just benign

to the Elmhurst General Welfare, but actually fits precisely within the exacting definition of the

very land use redevelopment the City has defined as being badly needed in downtown to advance

the Elmhurst General Welfare.

13. As such, the City’s denial of the conditional use for height is in direct conflict with

each of the three separate legislative declarations and actually harms the Elmhurst General Welfare

as defined by the City itself.

IV. RSCK’S APPLICATION.

14. RSCK originally proposed a “mixed-use” project of 109 feet in height with nine

full stories (“Option A”). The Project included two stories of parking deck with 48 parking spaces,

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seven stories of 28 luxury three-bedroom condominium units and 1,200 square feet of at grade

retail space immediately adjacent to the York Street right-of-way. A true and accurate copy of the

RSCK conditional use application is attached and incorporated as Exhibit 1.

15. The land use proposed by RSCK is permitted as of right with the exception of the

height which is permitted as a conditional use.

16. The architecture of the Project was designed by the noted and celebrated Lucien

Lagrange Studio from the City of Chicago and consists of stone, masonry, concrete and glass in

express conformity with the City’s design guidelines within the 2016 Downtown Plan for

Elmhurst. The architecture was praised by the City and its citizens alike. A true and accurate copy

of the elevations and sample Lucien Lagrange Studio completed projects that were included in

RSCK’s conditional use application are attached and incorporated as Group Exhibit 2.

17. The dimensions of the Project and all bulk regulations set by the City to regulate

land use dimensions within its downtown were met in the RSCK plans submitted to the City,

including side yard dimensions, rear yard dimensions, front yard dimensions, 1 parking regulations,

building code regulations, stormwater regulations, lot consolidation regulations, electrical

transformer regulations, floor area ratio regulations and fire separation regulations between lot

lines. The Project is fully code-compliant and sought only a conditional use to exceed 77 feet in

building height.

18. The Project as originally proposed by RSCK at 109 feet in height did not seek any

monetary assistance from the City by way of Tax Increment Financing (“TIF”) funding.

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The front yard is built fully out to the York Street right-of-way as required by City code, but there are two sections
of the front façade that are proposed to be setback by roughly two feet so as to provide some visual articulation of the
front edifice, and provide a streetwall space for planters and flora. The City has approved this minor deviation, and
the sole dispute presented for declaratory relief in Count One is the denial of the conditional use for height.

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 19. The Project as originally proposed by RSCK at 109 feet in height would cost a

projected $26.6 million and would be a purely private investment in downtown Elmhurst. Each of

the three-bedroom condominiums were designed to sell for in excess of $1.1 million.

V. 2016 DOWNTOWN ELMHURST COMPREHENSIVE PLAN.

20. In 2015, the City began a detailed and comprehensive process to completely rewrite

the legislative policy positions, land use regulations and public financing tools applicable to new

development within its downtown.

21. The multi-year process was undertaken by the City applying legislative home rule

powers to define and publish that which the City declared to be changes and alterations to

downtown land uses and land use regulations that would be beneficial to the Elmhurst General

Welfare.

22. The first formal legislative step to define the land use that would be beneficial to

the Elmhurst General Welfare was preparation of a new 2016 Downtown Plan (as defined below).

23. In 2015 and 2016, the City processed, vetted and adopted the 170-page Downtown

Plan (“2016 Downtown Plan”) with detailed legislative proclamations of the type of land uses

deemed desirable to advance the Elmhurst General Welfare for the future of its downtown. A

certified copy of the 2016 Downtown Plan is attached and incorporated as Exhibit 3.

24. The 2016 Downtown Plan, with uncommon clarity and detail, legislatively

proclaimed that downtown Elmhurst needed to: (a) significantly increase the residential density

living in downtown; (b) relax the downtown zoning regulations restricting the height of buildings

in order to generate the density needed to populate downtown with retail and service customers;

(c) restrict first floor land uses to non-residential to create a pedestrian-friendly retail streetwall

corridor; (d) encourage mixed-use, especially residential land use above the retail first floor to add

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downtown residents; (e) compel developers to incorporate parking adequate for the residential

within the new structures to be developed; and (f) develop structures with masonry elements with

traditional architectural elements to upgrade the blighted conditions in some areas.

25. The 2016 Downtown Plan specified that the CBC zoned area of downtown

Elmhurst where RSCK’s Property is located should be the area of the highest level of intense new

development, and to achieve this goal, should be rezoned to allow the tallest buildings in all of

downtown Elmhurst. (2016 Downtown Plan, p. 53). The buildings in the CBC zoning district were

to be taller than buildings in the adjacent Central Business Outer Core (“CBOC”) zoning district

and taller than buildings in any other district in downtown Elmhurst.

26. The 2016 Downtown Plan legislatively declared that rezoning the downtown CBC

zoning district to permit increased height of new structures would be beneficial to the Elmhurst

General Welfare because the additional height taller than 77 feet would actually generate the

additional residential units needed to attract downtown residents as customers for downtown

merchants, restaurants and service enterprises. (2016 Downtown Plan, p. 58).

27. The 2016 Downtown Plan legislatively declared that the plan itself was supposed

to provide a “decision making framework” for City staff, appointed officials (the Zoning and

Planning Commission (“ZPC”)), and elected officials (the Development, Planning and Zoning

Committee (“DPZC”) and City Council) to make land use legislative decisions like the one at issue

in this case. (2016 Downtown Plan, p. 1). In plain language, the 2016 Downtown Plan was adopted

to be used by the decision-makers in granting or denying conditional use applications like the one

submitted by RSCK.

28. Addressing the specific area where the RSCK Property is located, the 2016

Downtown Plan stated:

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 “Inconsistent Building Heights. …As redevelopment occurs within
Downtown Elmhurst, particularly along York Street, visual
disparities will occur as taller new buildings are built next to shorter
older buildings. It is important to resist the temptation that all new
developments should match the size and scale of its neighbors.
Height disparities between old and new buildings will correct
themselves over time as additional redevelopment at a greater scale
and density occurs. (2016 Downtown Plan, p. 73).

29. The 2016 Downtown Plan stated that future zoning should be amended to permit

new development within the CBC zoning district where RSCK’s Property is located to be six

stories tall as a matter of right, but also up to ten stories (120 feet) in appropriate circumstances.

(2016 Downtown Plan, p. 58).

30. The 2016 Downtown Plan stated that RSCK’s Property, clustered along with two

properties north of the Property and one large parcel south of the Property, represent 1 of 18

specifically identified “underutilized” areas within the downtown area where “redevelopment

would have a significant positive effect on Downtown Elmhurst.” In so doing, the legislative policy

position of the City was that redevelopment of the RSCK Property, if done consistent with the

2016 Downtown Plan, would in and of itself have a significant positive effect on downtown

Elmhurst.

31. The 2016 Downtown Plan named this cluster of five underdeveloped sites, which

includes the RSCK Property, to be a “catalyst” area where new development, such as that proposed

by RSCK, could trigger other new downtown development beneficial to the Elmhurst General

Welfare. (2016 Downtown Plan, p. 67).

32. In summary, the City legislatively proclaimed that the RSCK Property: (a) should

be zoned for the tallest buildings; (b) should not be limited to 77 feet like the adjacent CBOC

zoning district, but rather buildings should be permitted to go up to 125 feet by conditional use;

(c) that additional height at RSCK’s location was beneficial because it would allow more
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residential units to be occupied by new customers for downtown businesses; (d) that new

development on the specific RSCK Property would be beneficial because it could trigger the

redevelopment of other underdeveloped downtown parcels; and (e) that the ZPC and City Council

should resist the temptation to reject taller buildings because they would be out of scale with

existing older one and two story buildings.

33. The declarations within the 2016 Downtown Plan are undisputed material facts that

the City cannot deny as having been legislatively adopted to define the Elmhurst General Welfare

that this Court will be called upon to evaluate within the context of RSCK’s as applied substantive

due process challenge.

34. The denial of RSCK’s conditional use for height was an irrational legislative

decision because the decision was so directly and undeniably contrary to the 2016 Downtown Plan.

VI. THE 2017 ZONING AMENDMENTS FOR DOWNTOWN WERE ADOPTED TO

ACHIEVE THE 2016 DOWNTOWN PLAN.

35. In 2017, consistent with the express directives of the 2016 Downtown Plan, the City

rewrote the zoning ordinance regulations applicable to its downtown (the “2017 Zoning

Amendments”) for the stated legislative purpose of creating land use regulations that would allow

new development within downtown Elmhurst to achieve the vision adopted in the 2016 Downtown

Plan and to advance the public welfare. A certified copy of Ordinance ZO-11-2017 adopting the

2017 Zoning Amendments is attached and incorporated as Exhibit 4.

36. These 2017 Zoning Amendments, in conformity with the recommendations within

the 2016 Downtown Plan, zoned the location surrounding RSCK’s Property to permit the height

of mixed-use residential over retail condominium projects to be constructed in excess of 77 feet,

and all the way up to ten stories and a maximum of 120 feet by conditional use. The 2017 Zoning

Amendments actually exceeded the recommendation of the 2016 Downtown Plan for the CBC
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area where the RSCK Property is located to permit building height up to 125 feet, rather than the

120 feet recommended in the 2016 Downtown Plan.

37. In keeping with the express recommendations of the 2016 Downtown Plan to allow

the tallest buildings with the most intense development and the greatest residential density to be in

the CBC zoning district where RSCK’s Property is located, the 2017 Zoning Amendments

provided that the CBC zoning district would be the only district in all of downtown Elmhurst

where a building height greater than 77 feet would be permitted by conditional use.

38. The CBOC zoning district located outside of the CBC zoning district is limited to

just 77 feet in height, and no conditional use for height exceeding 77 feet is permitted in the CBOC

zoning district. As a result, the only way that the CBC zoning can accomplish the clearly

announced goal of the CBC zoning district to have buildings taller than the CBOC, is if the City

approves conditional uses for building heights taller than 77 feet within the CBC zoning district.

39. The legislative decision to expressly permit height up to 125 feet by conditional use

is a legislative declaration the City cannot contradict without being arbitrary and unreasonable, as

a matter of law.

40. The fact that the City expressly permitted height up to 125 feet as a conditional use

at RSCK’s Property is directly applicable to whether the denial of RSCK’s conditional use permit

is contrary to the Elmhurst General Welfare or substantially serves that welfare.

41. By operation of Illinois Supreme Court case law, the 2017 Zoning Amendments

which permitted heights greater than 77 feet and up to 125 feet for the RSCK Property, is an

affirmative legislative declaration that buildings all the way up to 125 feet tall are not detrimental

to the Elmhurst General Welfare within the CBC zoning district. City of Chicago Heights v. Living

Word Outreach Full Gospel Church and Ministries, Inc., 196 Ill.2d 1 (2001).

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 42. As such, the inclusion of a conditional use as being permitted within the CBC zone

is a legislative declaration that the height up to 125 feet is in harmony with the downtown Elmhurst

zoning plan. Living Word, supra.

43. Generally, a conditional use permit application may not be denied by the legislative

authority on the ground that the use is not in harmony with the surrounding neighborhood. Living

Word, supra.

44. The appropriate standard to be applied by the City in determining if the requested

conditional use for 109 feet in height should be denied, is whether there are facts and circumstances

that show that the 109-foot-tall building at the RSCK Property would have an adverse effect above

and beyond those inherently associated with any other 109-foot-tall building anywhere else in the

CBC zoned district of the City. Living Word, supra.

45. The City’s decision to zone the height requested by RSCK to be permitted as a

conditional use prohibits the City from denying the conditional use for height at 109 feet for any

attribute that would be presented by any structure of the same height in the same CBC zoning

district. In other words, there must be a detrimental attribute that is different in kind from any other

building of 109 feet in the CBC zoned area before the City can deny RSCK’s conditional use.

46. Similar to the 2016 Downtown Plan, the 2017 Zoning Amendments contain

undisputed material facts the City cannot deny as defining the Elmhurst General Welfare that this

Court will be called upon to evaluate as part of RSCK’s as applied substantive due process

challenge.

47. Throughout the entire deliberative process, RSCK’s counsel repeatedly asserted

that the Supreme Court Living Word precedent imposed certain legislative findings attributed to

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the City itself, and that contradiction of those legislative findings would be unreasonable and

arbitrary.

48. The opponents of RSCK’s Project were represented by an attorney who advised the

ZPC to ignore the legal precedent of Living Word, asserting that it was irrelevant. A certified copy

of the ZPC October 18, 2022 Report of Proceeding is attached and incorporated as Exhibit 5 (see

ROP 10/18/22, p. 29).

49. The chairwoman of the ZPC never advised the ZPC that the Living Word precedent

was applicable and that the opponents’ counsel was wrong.

50. At no time throughout the entire deliberative legislative process was the ZPC, the

DPZC, the City Council or the general public publicly advised by the Mayor, the ZPC Chair or the

City attorney that the Living Word Supreme Court precedent was an applicable standard and that

the opponents’ counsel’s legal assertions of irrelevance were incorrect under Illinois law.

51. The RSCK conditional use application was therefore the subject of a clear and

unresolved dispute of law over which legal standards were applicable.

VII. ADOPTION OF THE 2018 TAX INCREMENT FINANCING REDEVELOPMENT

PLAN FOR DOWNTOWN ELMHURST.

52. In 2018, the City adopted an entirely new Tax Increment Financing Redevelopment

Plan (“2018 TIF Redevelopment Plan”) for downtown Elmhurst for the expressly stated goal of

trying to stimulate economic opportunity to achieve the vision within the 2016 Downtown Plan.

53. The 2018 TIF Redevelopment Plan included findings that defined the area

surrounding the RSCK Property by noting the area had 85% of its structures more than 35-years-

old, with deleterious layout, deleterious platting, deleterious assemblage, inadequate utilities and

steadily declining equalized assessed property values lagging behind property values elsewhere in

the City for four of the last prior years. Certified copies of Resolution R-02-2018 and TIF
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Ordinances O-22-2018, O-23-2018 and O-24-2018 are attached and incorporated as Group Exhibit

6 (see 2018 TIF Redevelopment Plan, p. 2 (Introduction) included within O-22-2018).

54. The 2018 TIF Redevelopment Plan for downtown Elmhurst was a legislative

proclamation of the detrimental buildings, platting, infrastructure and underdeveloped properties

the City needed to eradicate in order to prevent the spread of blight and to serve the Elmhurst

General Welfare.

55. The 2018 TIF Redevelopment Plan for downtown Elmhurst expressly defined the

problems the City needed to overcome stating that the assorted detrimental factors identified within

the downtown 2018 TIF Redevelopment Plan area “may limit the opportunities for private

reinvestment within and around the Redevelopment Project Area (“RPA”). Such factors potentially

suppress the value of the future development and weaken the potential for redevelopment

opportunities and sites, limiting employment and contributing to the lack of future investment in

the area.” (2018 TIF Redevelopment Plan, p. 2 (Introduction)).

56. Addressing how the City proposed to overcome these problems, the 2018 TIF

Redevelopment Plan states: “Accordingly, under this Redevelopment Plan and Project and as part

of its comprehensive economic development planning, the City intends to attract and encourage

retail, commercial, and mixed-use residential to locate, upgrade, expand and/or modernize their

facilities within the City.” (2018 TIF Redevelopment Plan, p. 2 (Introduction)).

57. The key legislative goals of the 2018 TIF Redevelopment Plan were to eradicate

old underdeveloped structures (like those currently on the RSCK Property and adjacent to the

RSCK Property), replace them with modern upgraded improvements (like the state-of-the-art

building proposed by RSCK), encourage new development of mixed-use residential and retail

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projects (just like the Project proposed by RSCK), and increase the property tax revenues generated

by new development consistent with the 2016 Downtown Plan.

58. Once again, these clear legislative declarations within the 2018 TIF Redevelopment

Plan are material undisputed facts the City cannot deny as having been adopted to define the

Elmhurst General Welfare this Court will be called upon to evaluate within RSCK’s as applied

substantive due process challenge.

59. RSCK’s Project was evaluated by the financial planning firm of SB Friedman, and

as originally proposed at 109 feet in height, the Project was projected to generate $9.7 million in

TIF incremental property tax revenue that would have been paid directly to the City over the life

of the TIF district, which could be used by the City to fund infrastructure improvements and

development incentives for other projects located in downtown Elmhurst.

60. As originally proposed, the projected equalized assessed value of the Property as a

result of the Project would increase from $306,990 (prior to demolition) to $10,716,078 (upon

completion of the Project).

61. The City’s failure to grasp the economic TIF windfall it could have achieved by

granting the conditional use for height, standing alone, is sufficient for this Court to declare denial

of the conditional use to be arbitrary, unreasonable and contrary to the Elmhurst General Welfare.

VIII. THE COMPULSARY 2019 PUD REGULATIONS IMPOSED BY THE CITY ON

RSCK.

62. With the 2016 Downtown Plan, the 2017 Zoning Amendments and the 2018 TIF

Redevelopment Plan being formally adopted and in place, RSCK purchased the Property for

$1,375,000 on July 16, 2021, with the goal of demolishing the two existing dilapidated buildings

shown below on the Property and developing mixed-use luxury condominiums on the upper floors

with a retail land use on the commercial frontage.

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 63. RSCK relied on the fact that the decision to grant a conditional use for height at the

proposed 109 feet would be made based upon the Elmhurst General Welfare as announced by the

2016 Downtown Plan, the 2017 Zoning Amendments, the 2018 TIF Redevelopment Plan, and in

accordance with Supreme Court precedent established in Living Word.

64. Then in 2019, the City adopted entirely new planned unit development regulations

applicable to property owners in downtown if their frontage exceeded 75 feet (“2019 PUD

Regulations”). A certified copy of Ordinance ZO-14-2019 adopting the 2019 PUD Regulations is

attached and incorporated as Exhibit 7.

65. The 2019 PUD Regulations were not needed nor requested by RSCK as part of their

application because the development plan proposed by RSCK could be constructed in full

conformity with all applicable CBC zoning requirements. Only one proposed Site Development

Allowance (“SDA”) was requested by RSCK to allow a roughly two-foot setback of two small

portions of the York Street elevation that would otherwise have been built right up to the right-of-

way. 2

2
RSCK asked the City to allow the roughly 2.0-foot setback for articulation and landscape area, but expressly advised
that the setback was not necessary to proceed with the Project as it was simply preferred aesthetically.
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 66. Notwithstanding the foregoing, the 2019 PUD Regulations were compulsory and

imposed by the City on RSCK. This is because the 2019 PUD Regulations applied to every

property in downtown Elmhurst that had a frontage that exceeded 75 feet and the RSCK Property

had 82 feet of frontage.

67. Simply stated, the City identified the RSCK Property as being too large to develop

for any use without submitting to the compulsory 2019 PUD Regulations and process.

68. As a result, RSCK submitted to a multi-staged formal application process and

completed lengthy proceedings before the City planning staff, the DPZC, the ZPC, then back again

to the DPZC, with two additional meetings thereafter before City Council.

69. During the over year-long duration of the compulsory legislative PUD process, all

economically viable use of the Property was denied to RSCK as no use of the RSCK Property was

permitted of right under the new 2019 PUD Regulations.

70. RSCK was the first applicant in the City to process a compulsory PUD application

under the 2019 PUD Regulations within the CBC zoning district, and the only applicant to ever

process a conditional use for building height coupled with a compulsory PUD.

71. The ZPC and City Council invalidly mixed-up and mis-applied standards in

processing RSCK’s application. Specifically, they mis-applied PUD regulations instead of those

limited and specified standards applicable to the requested conditional use for height. They also

imposed non-existent standards on the conditional use application.

72. The 2019 PUD Regulations obligated RSCK to first conduct a neighborhood

meeting with invitations sent to all property owners of record within 500 feet of the Project, which

meeting was conducted at City Hall on April 21, 2022.

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 73. Then, after the neighborhood meeting, the new 2019 PUD Regulations required

that RSCK attend a concept presentation at City Hall to a three-aldermen committee, the DPZC,

which meeting occurred on May 9, 2022. The height proposed to the City at the mandatory

neighborhood meeting, as well as the DPZC concept presentation, was 109 feet as measured by

the City zoning regulations and required no TIF financing or any public development funding of

any kind.

74. The sole zoning permission requested to develop the Project exactly as originally

proposed by RSCK was a conditional use for height taller than 77 feet at 109 feet.

75. The DPZC concept presentation was required to be completed prior to the formal

application for approval of the Project so as to permit the three elected aldermen on the DPZC to

propose changes and modifications to the plan for the development before the application was

formally accepted by the City.

76. After completing the neighborhood meeting and also completing the DPZC concept

presentation, RSCK was obligated to report within the content of the formal zoning application

the comments from both the neighbors, as well as comments and directives from the DPZC. These

comments as set forth in RSCK’s application included:

• Residents who attended the public meeting asked that RSCK (Applicant) submit
multiple shadow studies depicting the shadows to be cast by the proposed building
at multiple times of the day and at multiple times of the year.

• Residents who attended the public meeting expressed concern that the alley
experiences high volumes of motor vehicle traffic at different times of day, and
traffic safety is a concern meriting turn radius studies be performed.

• Nearly all residents and all DPZC members praised the proposed architecture and
design as being attractive and a significant upgrade over existing structures.

• One or more DPZC members suggested that Applicant consider reducing the height
of the structure by eliminating one full floor (4 units) of condominiums.

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 • One or more DPZC members suggested that Applicant consider reducing the mass
of the structure by tiering the upper-most floor of the condominiums by setting back
the top floor further from York Street than the balance of the building.

• One or more DPZC members suggested that Applicant consider reducing the height
of the structure by placing one or both floors of parking deck at or below grade.

• Residents who lived in the One95 condominium building expressed the opinion
that RSCK’s condominium building should not be taller than the 77-foot-tall One95
building.

• Residents who lived in the One95 condominium building also expressed the
opinion that RSCK’s condominium building should provide an extra dimension of
setback off the rear alley similar to the additional setback provided by the One95
building.

77. None of the three aldermen on the DPZC ever told RSCK that they would oppose

any project at the location of the property simply because it exceeded 77 feet in height.

78. As required by the City’s 2019 PUD Regulations, RSCK then undertook the time

and expense to respond to the DPZC suggestions and: (a) architecturally designed; (b) processed

floor planning; (c) evaluated condominium sale impacts and costs of construction; and (d) had SB

Friedman evaluate the economic viability of all three alternative options recommended by the

DPZC (“Options B, C and D”). In so doing, RSCK reported to the City, by way of uncontradicted

testimony and financial calculations prepared by SB Friedman, as to each:

a. Option B (tiered top floor): This would tier the top floor so that the seventh floor of
the 111-foot structure would be stepped back from the York Street frontage, would
reduce the frontage elevation of the building to 98 feet in height where visible from
York Street, while the less visible portions of the building would remain at 109 feet
in height. This tiered option would require less TIF funding assistance ($1,276,000)
because the unit count would only fall to 27 units from the preferred 28. RSCK
advised the City in sworn testimony and in its written submittal that the Option C
Plan was economically viable with TIF funding.

b. Option C (six floors over two): This would remove one full floor of the project,
have a building height of 98 feet as measured by the City code, reduce the
condominium count from 28 to 24 units, and would require TIF funding in an
amount of $1,764,000 as calculated by SB Friedman to generate a market return on
19
 investment. RSCK advised the City in sworn testimony and in its written submittal
that the Option B Plan was economically viable with TIF assistance from the City.

c. Option D: This called for excavating the site to depress parking facilities below-
grade and was deemed unsuitable for height reduction because the City building
codes required excess poured concrete for lateral support within the parking area,
and the cost for the excavation, coupled with the significant reduction of the parking
area due to the width of the foundation walls, rendered the parking deck to be
unsatisfactory for conventional parking as required by the City building code.
RSCK advised the City in sworn testimony and in its written submittal that the
Option D Plan was not viable.

79. Both of the acceptable alternative options (Options B and C above) were then fully

vetted, presented in RSCK’s application materials, presented at public hearing, and the ZPC was

advised that both options were economically viable with modest TIF funding from the City. A

certified copy of the ZPC October 4, 2022 Report of Proceeding is attached and incorporated as

Exhibit 8 (see ROP 10/04/22, pp. 32-33, 51-52 and 84-86). See also SB Friedman Financial GAP

Analysis dated September 9, 2022 that includes three options financial return on investment and

TIF requirement study dated September 9, 2022 attached and incorporated as Group Exhibit 9.

80. Notwithstanding, the City failed to ever vote upon either Option B (the tiered

elevation) or Option C (the 98-foot-tall elevation) even though RSCK was required to undertake

the time and significant expense to fully of evaluate and vet them in conformity with the new

compulsory 2019 PUD Regulations.

81. It was the uncontradicted testimony of RSCK and SB Friedman that the initially

proposed and preferred Option A Plan would generate $9,803,000 in TIF incremental revenue that

would be paid to the City for use in other development projects within downtown Elmhurst, and

that RSCK needed no public funding incentive of any kind to construct the Option A Plan.

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 82. Had the City approved RSCK’s Option B Plan and conditional use permit for a

tiered top floor set back from the right-of-way for York Street, the Project still would have

produced in excess of $9,691,000 in TIF revenue.

83. Had the City approved RSCK’s Option C Plan, an entire floor of condominiums

would have been removed. The Project would have been reduced to a height of just 98 feet and

would have been just six feet taller than a nearby project known as The Fynn, which was recently

approved by the City at a height of 92 feet and located a mere 60 feet from the RSCK Property.

The Option C Plan still would have generated in excess of $8,381,000 in TIF revenue to be used

by the City for other downtown development projects and improvements.

84. Despite the fact that the 2019 PUD Regulations obligated RSCK to submit and fully

vet both Options B and C, the ZPC was told by the Chairman that only Option A was to be voted

upon. A certified copy of the ZPC Deliberations following closure of the public hearing January

10, 2023 Report of Proceeding is attached and incorporated as Exhibit 10 (see ROP 01/10/23, p.

53). See also ZPC written report to City Council dated January 31, 2023 attached and incorporated

as Exhibit 11 (see p. 2 of 13 (Introduction, last paragraph, last sentence).

85. In fact, neither Option B nor Option C was ever voted upon by the ZPC or City

Council.

IX. CONDITIONAL USE STANDARDS.

86. The City has adopted seven separate standards within its zoning regulations that are

expressly written to guide the legislative decision to approve or deny a conditional use permit.

87. The Illinois Supreme Court has held that the failure to follow adopted conditional

use standards when denying a conditional use permit is admissible evidence that is relevant to the

trial court’s decision as to whether the denial was unconstitutionally arbitrary or unreasonable.

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Kraegel v. Village of Wood Dale, 10 Ill.App.3d 486 (2d Dist. 1973); Cosmopolitan National Bank

v. County of Cook, 116 Ill.App.3d 1089 (1st Dist. 1983).

88. The City’s seven conditional use standards obligated RSCK to submit proof of the

following:

a. The establishment, maintenance, or operation of the Conditional Use will not be

detrimental to, or endanger the public health, safety, morals, comfort, or general
welfare;

b. The Conditional Use will not be injurious to the use and enjoyment of other
property in the immediate vicinity for the purposes already permitted, nor
substantially diminish and impair property values within the neighborhood;

c. The establishment of the Conditional Use will not impede the normal and orderly
development and improvement of the surrounding property for uses permitted in
the district;

d. Adequate utilities, access roads, drainage and/or necessary facilities have been or
are being provided;

e. Adequate measures have been or will be taken to provide ingress and egress so
designed as to minimize traffic congestion in the public streets;

f. The proposed Conditional Use is not contrary to the objectives of the current
Comprehensive Plan for the City of Elmhurst; and

g. The Conditional Use shall, in all other respects, conform to the applicable
regulations of the district in which it is located, except as such regulations may, in
each instance, be modified pursuant to the recommendations of the Commission

89. RSCK submitted proof of compliance with all seven conditional use standards.

90. The standards focus on two essential elements: (a) evaluating whether or not there

is a detrimental attribute that would prevent approval of the conditional use; and (b) evaluating if

some aspect of the proposed conditional use is contrary to the 2016 Downtown Plan or 2018 TIF

Redevelopment Plan.

91. Following the standards, if the City does not identify a detrimental attribute or a

reason the requested conditional use is contrary to the 2016 Downtown Plan or the 2018 TIF
22
Redevelopment Plan, the conditional use should be approved and denial is evidence of arbitrary

decision-making.

92. In addition to the seven standards adopted within the City zoning regulations, every

conditional use is subject to the Illinois Supreme Court precedent of the Living Word decision,

which sets forth the scope of the findings that can and cannot lawfully be made by the ZPC and

City Council. As such, the detriment which was identified to justify denial of the conditional use

for height cannot be an attribute inherent in every tall building. The City’s failure to follow the

judicially imposed standards set forth in Living Word is relevant to this Court’s decision on whether

the denial was unconstitutionally arbitrary or unreasonable. Living Word, supra.

X. APPLICABLE STANDARD OF JUDICIAL REVIEW.

93. The “as applied” substantive due process challenge in this case is governed by 65

ILCS 5/11-13-25. The denial of RSCK’s conditional use permit for height between 98 feet and 109

feet is subject to de novo review as a legislative decision of the City.

94. Under the as applied due process challenge in this case, the court is to determine if

the denial of RSCK’s conditional use permit was arbitrary and not substantially justified by the

need to protect the Elmhurst General Welfare.

XI. THE REASONS ASSERTED FOR DENIAL ARE LEGALLY INVALID.

95. The following five reasons were contained within the text of the Ordinance denying

the requested conditional use for height and are directly contrary to the adopted conditional use

standards or directly contrary to Illinois law:

a. The negative impact on light, air, and the shadows cast by the building.

b. The insufficient residential density of the Project.

c. The need to protect the existing scale of York Street structures.

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 d. The failure to create public spaces as part of the Project.

e. The failure to balance the appearance of height and mass of the building.

96. These legally invalid justifications are evidence that the City’s legislative decision

to deny RSCK’s conditional use for height, and restricting the building to 77 feet in height, was

arbitrary and not substantially connected to the Elmhurst General Welfare.

A. It is Irrational For The City To Deny Any Conditional Use Requested For Height In
the CBC Zoning District On The Basis That A Building As Tall As 109 Feet Would
Impose A Detrimental Impact On Neighbors’ Light And Air.

97. The Illinois Supreme Court has made it unequivocally clear that “in the absence of

some contractual or statutory obligation, no landowner in the State of Illinois has a legal right to

the free flow of light or air across the adjoining land of his neighbor.” People ex rel. Hoogasian v.

Sears, Roebuck & Co., 52 Ill.2d 301 (1972).

98. Adjoining landowners in Illinois have an equal right under the common law to build

to the line of their respective tracts and to any such height as is desired by them in the absence of

building restrictions or bulk regulations imposed to protect the public welfare. Hoogasian, supra.

99. Courts throughout Illinois have upheld municipal maximum height regulation

uniformly set for entire zoning districts as an appropriate land use regulation targeted at protecting

adequate light and air, and as a means to regulate a level of density that is deemed beneficial to the

public welfare. Francis C. Welch v. George B. Swasey, 214 U.S. 91, 29 S.Ct. 567, 536 L.Ed. 923

(1909); American Law of Zoning, Patricia Salkin, 5th Edition, Section 9.57 (2019); Federal Electric

Co. Inc. v. Zoning Board of Appeals of Mount Prospect, 398 Ill. 142 (1947).

100. The conditional use requested by RSCK is not a “land use” in the traditional sense

of zoning. Rather, the building height permitted to exceed 77 feet and up to 125 feet is a City

24
legislative decision to allow a conditional “bulk regulation” even though the City identifies it as a

“conditional use.”

101. The City’s bulk regulations regulate only dimensions such as the height of a

building, the floor area ratio of development permitted on a lot, or the width or depth of a front

yard, rear yard or side yard.

102. The City’s bulk regulations are 100% static in terms of use because they do nothing

more than define the size of the area on a property that the City deems to be suitable.

103. The City’s bulk regulations restrict the dimensions of structures and have nothing

to do with a use of the property other than to define the location where the City has determined the

boundary of a structure is acceptable, and where it is not in the name of preventing injury to the

public welfare.

104. The City’s bulk regulations regulate only the dimension of the buildings within

which expressly permitted uses are allowed to be conducted.

105. The City’s denial based on findings of a negative impact on air and light from the

109-foot proposed building are findings prohibited under the Living Word decision. By allowing a

building height of 10 stories and up to 125 feet as a conditional use in the CBC zoning district, the

City made an unequivocal legislative finding that buildings at that height are in harmony with the

CBC zoning district and serve the Elmhurst General Welfare. As a result, under Living Word, the

City cannot deny RSCK’s requested building height at 109 feet unless it finds that the RSCK

building had some detrimental impact that would not be an attribute of any other 109-foot-tall

building anywhere else in the CBC zoning district. The City made no such finding.

106. Pure physics dictates that each and every building located at any location on any

property anywhere within the CBC zoning district would block light and air and cast shadows on

25
adjacent properties during some hours of the day. Consequently, the City’s denial based on the

need to protect the neighboring property owners’ light, air and freedom from shadows again

demonstrates the decision to deny RSCK’s conditional use was arbitrary.

107. When the City adopted an ordinance denying RSCK’s conditional use for height at

109 feet because of concerns as to light and air for neighboring properties, the City arbitrarily did

so in contradiction with the 2016 Downtown Plan and in legislative disregard of the Living Word

decision.

108. It is irrational and arbitrary to expressly permit a purely static, physical dimension

of height up to 125 feet in the CBC zoned district and then deny RSCK’s requested conditional

use for a 109-foot building within that same zoning district because it will detrimentally impact

neighbors’ right to light and air and will cast shadows. As a matter of pure physics, every approved

building will cast shadows and block light and air at some point and to some degree. As a result,

the City’s findings on light, air and shadow casting are the precise types of findings the Living

Word decision holds to be irrational and in direct conflict with the City’s legislative decision to

permit 125-foot-tall buildings as a conditional use.

B. It Is Irrational For The City To Deny The Conditional Use For Height At 109 Feet For
A 28-Unit Condominium Based On The Proposed Use Inside The Structure Not
Generating Sufficiently Robust Density, And Then Restrict The Condominium
Density To Just 16 Units.

109. As set forth in Section V above, the 2016 Downtown Plan expressly encouraged

increasing the density in downtown Elmhurst to serve the Elmhurst General Welfare. The 2016

Downtown Plan also encouraged taller buildings in the CBC zoning district of up to ten stories

and 125 feet in height because taller buildings would generate the badly needed residential density

increase in downtown Elmhurst. As a result, restricting height in order to restrict density cannot be

26
a valid and rational justification to deny RSCK’s conditional use as needed to protect the Elmhurst

General Welfare.

110. Notwithstanding, Ordinance ZO-03-2023 which denied the RSCK conditional use

includes language whereby the conditional use for height is being denied, in part, because the 28

large three-bedroom luxury condominiums prevented the Project from generating a more robust

level of residential density deemed needed within downtown Elmhurst. The Ordinance then

restricted the height of the Project to 77 feet which eliminated 12 condominium units and provided

for a lower density of just 16 units. (A certified copy of Ordinance ZO-03-2023 is attached and

incorporated as Exhibit 12) (see p. 5 (bullet point 3)). The irony is obvious, and this blatantly

inherent contradiction demonstrates the City’s decision to deny the requested conditional use was

arbitrary and irrational.

111. Generating a substantial increase in residential density is undeniably one of the

principal goals of the 2016 Downtown Plan, the principal reason the tallest buildings are supposed

to be located in the CBC district and why height up to 125 feet is permitted as a conditional use.

112. The conditional use for height legally and factually has nothing to do with the land

use that is undertaken within the structure. The proposed condominium use of the Property is

permitted of right by the City of Elmhurst as a land use that serves the Elmhurst Public Welfare.

113. Because condominiums, including three-bedroom condominiums, are permitted of

right, the land use cannot be frowned upon by City Council, nor can it be determined to be a

detrimental aspect of a tall building.

114. In the name of protecting the Elmhurst General Welfare, which was to have robust

density in downtown, the City legislatively prevented RSCK from developing a condominium with

any more than 16 units on the basis that the 28-unit plan was insufficiently robust in density.

27
 115. The City’s “protection” of the Elmhurst General Welfare cannot be any more

humorously irrational unless authored by C.S. Lewis.

C. The City Cannot Rationally Find That Allowing RSCK To Build At 109 Feet Would
Be Out Of Scale With The Neighboring Properties.

116. In the Ordinance adopted denying the conditional use, the City justifies restricting

RSCK’s Project to 77 feet as being necessary to prevent a 109-foot-tall building from being in

conflict with the “scale of adjacent property along York Street.”

117. This claim is arbitrary and in direct conflict with the 2016 Downtown Plan and

2017 Zoning Amendments which define which downtown Elmhurst land uses will best serve the

Elmhurst General Welfare.

118. RSCK’s Property consists of the center two parcels of land located within a five-

parcel block that fronts directly onto York Street. The City identified these properties within the

2016 Downtown Plan as being “underutilized” and, with respect to this area, stated any

“redevelopment would have a significant positive effect on Downtown Elmhurst.” (2016

Downtown Plan, p. 67).

119. Under the 2016 Downtown Plan, York Street was recognized by the City to be the

main corridor of downtown Elmhurst, zoned and planned for the tallest structures and the densest

residential development:

“Inconsistent Building Heights. …As redevelopment occurs within

Downtown Elmhurst, particularly along York Street, visual
disparities will occur as taller new buildings are built next to shorter
older buildings. It is important to resist the temptation that all new
developments should match the size and scale of its neighbors.
Height disparities between old and new buildings will correct
themselves over time as additional redevelopment at a greater scale
and density occurs.

New buildings within the Core and Outer Core Zones should not be
required to include setbacks. To ensure an attractive design aesthetic
28
 that is consistent with the desired character of Downtown Elmhurst,
building massing should be encouraged to be consistent from
ground up and built to the property line, where applicable.” (2016
Downtown Plan, p. 73).

120. None of the adjacent properties along York Street exceed two stories, and all of the

buildings are located within, and are subject to, the 2018 Redevelopment Plan adopted by the City

to prevent further advancement of statutory blight factors.

121. The 2016 Downtown Plan made clear that the scale of the neighboring properties

on York Street was something the City wanted to eradicate as underdeveloped and replace with the

tallest and densest buildings to serve and positively impact downtown Elmhurst.

122. The 2018 TIF Redevelopment Plan also identified the location of the RSCK

Property as being “underimproved” with antiquated structures badly in need of new modern

development to prevent further blight. This cannot support a rational or reasonable rejection of the

RSCK Project which included Lucien Lagrange Studio luxury condominiums expected to sell for

over $1 million dollars each.

123. Ironically, the City’s justification of preserving the “scale” of the York Street

properties in rejecting the RSCK conditional use was the exact justification the 2016 Downtown

Plan warned against by stating: “It is important within Downtown Elmhurst to resist the temptation

that all new development should match the size and scale of its neighbors.” This again

demonstrates the arbitrary nature of the City’s decision to deny the RSCK conditional use because

the denial actually defeats the Elmhurst General Welfare defined by the City itself.

29
D. The City Cannot Arbitrarily Deny The Conditional Use For Height For Purely
Aesthetic Reasons.

124. The City ordinance denying the conditional use for height states that the “small size

of RSCK’s Property makes it difficult to accomplish certain design elements and spaces accessible

to the public as well as balance and height and massing along York Street.”

125. This quote asserts denial predicated on a facially vague and purely aesthetic

justification.

126. The finding is actually humorous because, under the 2019 PUD Regulations, RSCK

was forced into the year-long PUD regulatory process because the RSCK Property was too large

to have any land use permitted of right.

127. It is constitutionally invalid for the City to require dedication of public spaces in

exchange for a conditional use permit, as it constitutes a regulatory taking without providing just

compensation in conformity with both the U.S. and Illinois Constitutions.

128. The City’s formal legislative proclamation that the requested conditional use for

height was detrimental to the public welfare because the “balance of height and massing” is an

undesirable design element, is the very essence of vague legislative land use regulation by purely

subjective and arbitrarily applied aesthetic judgments that the Illinois Supreme Court has found to

be an unlawful and arbitrary use of the police power for over 100 years. Haller Sign Works v.

Physical Culture Training School, 249 Ill. 436 (1911); People ex rel. Friend v. City of Chicago,

261 Ill. 16 (1913); Forbes v. Hubbard, 348 Ill. 166 (1932); State Bank & Trust Co. v. Village of

Wilmette, 258 Ill. 311 (1934); Neef v. City of Springfield, 380 Ill. 275 (1942); Federal Electric Co.

v. Zoning Board of Appeals of Village of Mount Prospect, 398 Ill. 142 (1947); Trust Co. of Chicago

v. City of Chicago, 408 Ill. 91 (1951).

30
 129. The underlying rationale prohibiting such an arbitrary aesthetic finding is perhaps

best set forth in Forbes v. Hubbard, 348 Ill. 166 (1932), where the Illinois Supreme Court stated:

It is generally recognized that aesthetic considerations, while not wholly

without weight, do not of themselves afford sufficient basis for the
invasion of property rights, and this for the more or less obvious reason
that while public health, safety, and morals, which make for public welfare,
submit to reasonable definition and delimitation, the realm of the aesthetic
varies with the wide variation of tastes and culture. So, while it has been
held that all uses of property or courses of conduct which are injurious to
the health, comfort, safety, morals, and welfare of society may be
prohibited under the sovereign power of the state, though the exercise of
such power result in inconvenience or loss to individuals, that power must
find basis in the doctrine of overruling necessity or bear substantial relation
to the public good, and may not be based alone on aesthetic
considerations. People v. Kane, 288 Ill. 235, 123 N. E. 265; Town of
Cortland v. Larson, 273 Ill. 602, 113 N. E. 51, Ann. Cas. 1916E,
775; Haskell v. Howard, 269 Ill. 550, 109 N. E. 992, L. R. A. 1916B,
893; Haller Sign Works v. Training School, 249 Ill. 436, 94 N. E. 920, 34
L. R. A. (N. S.) 998; Dowsey v. Village of Kensington, supra; Welch v.
Swasey, 193 Mass. 374, 79 N. E. 745, 118 Am. St. Rep. 523, 23 L. R. A.
(N. S.) 1160.

130. In relation to a height regulation, the Illinois Supreme Court in Federal Electric Co.

v. Zoning Board of Appeals of Village of Mount Prospect, 398 Ill. 142 (1947) expanded this position

stating:

The power to regulate the height of a structure is an exercise of the police

power. All private property is held subject to a reasonable exercise of that
power. It is the law that the State may, in the exercise of the police power,
authorize a city or village to impose regulations which limit the height of
buildings or structures to be erected where such regulation is reasonably
necessary for the protection of the public health, the public safety, or the
public welfare. Such power cannot be exercised exclusively for the
purpose of gratifying and cultivating aesthetic tastes. Haller Sign Works v.
Physical Culture Training School, 249 Ill. 436, 94 N.E. 920, 34
L.R.A., N.S., 998; City of Chicago v. Gunning System, 214 Ill. 628, 73
N.E. 1035, 70 L.R.A. 230, 2 Ann.Cas. 892.

The owner's right in property, when unrestricted, extends not only

downward under the surface but upward to an unlimited extent, and
common experience demonstrates that the latter might sometimes be very
valuable. In short, limitations as to the height of structures in a municipal
31
 ordinance must bear some relation to the public health, safety or welfare.
It does not appear that the regulation contained in section 12 which limits
the height of structures to 30 feet is in any way related to the public health,
safety or morals.

131. If approved as originally proposed, the RSCK conditional use would have created

a new $26.6 million redevelopment project at a City-identified underdeveloped site in a location

threatened with blight that would have increased the residential density from an existing two

residential units to 28 residential units, and would have generated $9.8 million in TIF incremental

revenues payable directly to the City to aid other redevelopment in downtown.

132. The hardship confronted by RSCK is the loss of no less than $9 million in gross

revenue, plus the time, cost and hundreds of thousands of dollars spent in over a year of processing

the zoning request under the compulsory 2019 PUD Regulations, during which RSCK had no

economically viable use of the Property.

133. The gain to the public of the City as a whole from denying the conditional use is

non-existent, and the hardship imposed by the denial on RSCK is overwhelming.

134. The City’s denial of the conditional use permit requested by RSCK for a building

height between 98 feet and 109 feet was unreasonable, irrational, arbitrary and not significantly

connected to protecting the Elmhurst General Welfare as defined by the City itself. As a matter of

law, the denial therefore violated RSCK’s substantive due process rights.

WHEREFORE, Plaintiff, RSCK Holdings LLC, an Illinois limited liability company,

respectfully requests this Court to enter a declaratory judgment holding:

A. The legislative decision of the City to deny RSCK a conditional use for the

construction of a 109-foot tall mixed-use, 28-unit condominium over two floors of

residential parking and 1,200 square feet of retail was arbitrary, unreasonable and

unneeded for and unrelated to the public health, safety or general welfare.
32
B. The hardship imposed by the denial of the conditional use upon RSCK is in conflict

with the legislative declarations within the 2016 Downtown Plan, the 2017 Zoning

Amendments rezoning the CBC district and the 2018 TIF Redevelopment Plan, all

three of which affirmatively suggest RSCK’s proposed conditional use will serve

and advance the public health, safety, and general welfare as defined by the City.

C. The legislative decision of the City to permit new structures within the CBC zoning

district up to 125 feet in height as a conditional use carried with it a municipal

determination that buildings up to 125 feet in height are in harmony with the CBC

zoning district plan, and will not adversely affect the neighborhood merely because

of their height.

D. The record of this proceeding and the evidence submitted on behalf of RSCK and

the City, in this Court’s de novo review of the legislative decision, is devoid of any

facts or circumstances that show that the 109-foot-tall conditional use requested

would impose any adverse effects upon adjoining and surrounding properties

unique and different from the adverse effect of a 109-foot-tall building anywhere

else in the CBC zoned area of downtown Elmhurst.

E. For the reasons stated, the denial of the conditional use for height of 109 feet was

imposed by the City in violation of RSCK’s right to substantive due process when

regulating and restricting RSCK’s private property, and the legislative decision is

hereby declared to be void as undertaken in violation of the U.S. Constitution and

the Illinois Constitution.

F. For whatever further relief this Court deems just and equitable.

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 COUNT TWO

THE CONDITIONAL USE DENIAL VIOLATED RSCK’S

PROCEDURAL DUE PROCESS RIGHTS

XII. THE 2019 PUD REGULATIONS TEMPORARILY PROHIBITED ALL

ECONOMICALLY VIABLE USE OF THE PROPERTY.

135. RSCK hereby adopts, incorporates, and re-alleges paragraph 1 through 134 as

though fully set forth in this Court Two.

136. Within the 2019 PUD Regulations adopted by the City, Section 22.31(b)(1)(A)(i)

provides as follows:

Any development in the Downtown (Central Business Core District,

Central Business Outer Core District, Central Business Outer Core
Residential, Neighborhood Transition District and Civic
Institutional District), with seventy-five (75) feet or more of street
frontage;

137. With the adoption of the 2019 PUD Regulations, every property in downtown

Elmhurst with frontage that exceeds 75 feet of frontage on a city right-of-way is obligated to pay

an PUD application fee for the privilege of having to process a PUD application to procure the

City’s legislative permission to allow them to develop their property for any use.

138. RSCK’s Property is 82 feet in width at the York Street right-of-way, and as a result

RSCK was denied the right to any redevelopment use unless and until the City legislatively

processed a PUD for the Property that RSCK did not need nor want.

139. The classification by the City of properties based on the 75-foot width of right-of-

way along a city street is a facially arbitrary classification. Properties with a 74 foot or shorter

right-of-way can develop without PUD mandates regardless of the actual size of the overall site,

while the same land use plan and building on a parcel 76 feet wide cannot be developed until the

City completes its PUD legislative analysis at the property owner’s expense.

34
 140. The categorical deprivation of any and all land use for all properties exceeding 75

feet of frontage during the multi-faceted mandated legislative PUD process (over a year for RSCK)

is not a land use restriction needed to protect the Elmhurst General Welfare. The same use cannot

viably be both harmless to the Elmhurst General Welfare at 74 feet and detrimental to the Elmhurst

General Welfare at 76 feet.

141. During the compulsory PUD process, RSCK had no economically viable use of the

RSCK Property because none of the existing vacant and antiquated buildings on the RSCK

Property were economically viable for any land use permitted within the CBC zoning district. The

City actually sought permission from RSCK to use the vacant building as a fire department training

site. Demolition and redevelopment of RSCK’s Property was required for any economically viable

land use.

142. The 2019 PUD Regulations contain no provision whereby an applicant like RSCK,

which sought no deviations from the CBC zoning regulations and land use regulations, can “opt-

out” of the PUD compulsory process. Even if the property in question is fully code-compliant with

every form of land use regulation, the applicant is prohibited from making any use of the property

until the applicant obtains a legislative determination from the City that the code-compliant use

and structure will be allowed.

143. This categorical prohibition of land uses and structures under the 2019 PUD

Regulations, when a property is in strict conformity with all applicable zoning and regulatory

codes, constitutes a temporary taking until the land use and aesthetics of the proposed development

are legislatively processed and completed by a final vote of the City Council.

35
XIII. AS APPLIED BY THE CITY, THE 2019 AMENDED PUD REGULATIONS
VIOLATED RSCK’S PROCEDURAL DUE PROCESS RIGHTS.

144. In order to apply for the required PUD approval and receive any economically

viable use, the 2019 PUD Regulations required RSCK to pay for and submit: (a) a PUD application

fee of $2,500; (b) a PUD preliminary plat of development; (c) preliminary engineering and

stormwater reports; (d) architectural elevations, parking plan and floor plans; (e) defined building

materials; (f) construction staging plan; (g) timeline for construction; (h) shadow studies; (i) traffic

report; and (j) a project impact statement.

145. RSCK paid for and submitted all statutorily required materials.

146. The City verbally notified RSCK that it would also require a marketing study to

confirm the economic viability of marketing and selling luxury condominiums in downtown

Elmhurst.

147. RSCK complied and purchased and provided a marketing study prepared by Tracy

Cross & Associates, Inc. at an additional cost of $13,824.72.

148. At each stage of the public hearing, the PUD staffing team of RSCK appeared to

testify and respond to questions, including two Lucien Lagrange Studio architects, one staff

engineer from SPACECO, Inc., one traffic planner from KLOA, a marketing broker from the firm

of Keller Williams Realty Inc., general contractors from TW Chicago, LLC and a marketing

consultant to address the Tracy Cross & Associates, Inc. marketing study.

149. After being forced to participate in this process, the City adopted Ordinance ZO-

03-2023 which:

• Denied the conditional use requested for building height at 109 feet as originally

proposed under Option A.

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 • Wholly ignored the conditional use requested for the partially tiered building height

of 111 feet down to 98 feet under Option B which RSCK was directed by the DPZC

to fully vet.

• Wholly ignored the conditional use requested for a building height at 98 feet under

Option C, only six feet taller than a recently approved 92-foot-tall apartment

building less than 60 feet away, which RSCK was directed by the DPZC to fully

vet.

• Simultaneously approved a PUD at a maximum height of 77 feet for which no PUD

application was ever filed, and for which no plans or studies existed which violated

the 2019 PUD Regulations that required, among other documents, a Preliminary

PUD Plat, architectural elevations, building materials, floor plans, parking studies

and preliminary engineering and stormwater submittals.

150. Prior to this approval, RSCK had repeatedly advised the City it could not build the

building at only 77 feet because doing so was not economically viable. (See full application text

submitted to the City on September 9, 2022, inclusive of (a) Tab14, the three concept submittals;

and (b) Tab 19, the SB Friedman economic evaluation of economic viability).

151. If RSCK simply removed all proposed improvements above the City approved

elevation of 77 feet, the remaining Project would be made up of four floors with a total of 16

condominium units over two floors of parking with 48 parking spaces, which creates an absurd

ratio of 3 parking spaces per condominium, well in excess of the 1.2 parking spaces required by

the City. Such a plan is ludicrous on its face and obviously not economically viable.

152. This compulsory PUD legislative process took over a year to complete (from

February 25, 2022 to March 20, 2023) and cost RSCK in excess of $300,000.

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 153. The foregoing actions undertaken by the City violated RSCK’s procedural due

process rights.

WHEREFORE, Plaintiff, RSCK Holdings LLC, an Illinois limited liability company,

respectfully requests this Court to enter the following relief:

A. Enter judgment in favor of RSCK and declare the adoption of Ordinance No. ZO-

03-2023 to be void as a matter of law and adopted and processed in violation of

RSCK’s procedural due process rights.

B. Remand the PUD approval for processing consistent with the application materials

submitted by RSCK, including the processing of Option B and Option C.

C. Direct that any alternative plan imposed by the City on RSCK be done in

conformity with the 2019 PUD Regulations.

D. For whatever further relief this Court deems just and equitable.

COUNT THREE

REGULATORY TAKING OR DAMAGING OF RSCK PROPERTY WITHOUT JUST

COMPENSATION IN VIOLATION OF THE ILLINOIS CONSTITUTION

154. RSCK hereby adopts, incorporates, and re-alleges paragraphs 1 through 153 as

though fully set forth in this Count Three.

155. The compulsory PUD process as implemented and applied by the City to RSCK’s

Property for over a year during which time RSCK was denied all economically viable use of the

Property, imposed a regulatory legislative taking or damaging of RSCK’s property without

providing just compensation in violation of the Illinois Constitution.

WHEREFORE, Plaintiff, RSCK Holdings LLC, an Illinois limited liability company,

respectfully requests this Court to grant the following relief:

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 A. Find that the City’s actions constituted a regulatory taking or damaging of RSCK’s

Property.

B. Award just compensation to RSCK for the taking or damaging.

C. Assess and award RSCK recovery of its reasonable attorney fees and costs for

prosecuting Count Three in this Complaint as is provided under Illinois law.

D. For whatever further relief this Court deems just and equitable.

Respectfully Submitted,

RSCK HOLDINGS LLC, an Illinois limited liability

company, Plaintiff

BY: /s/ Louis D. Bernstein

One of Its Attorneys

Louis D. Bernstein
James D. Trail
The Bernstein Law Firm, LLC
350 North Clark Street, Suite 400
Chicago, Illinois 60654
Tel.: 312-645-6090
Firm ID: 257471
lbernstein@bernsteinlawchicago.com
jtrail@bernsteinlawchicago.com

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Exhibit List

Exhibit 1: RSCK Conditional Use Application

Exhibit 2: Elevations and Sample Lucien Lagrange Studio Completed Projects

Exhibit 3: Certified Copy of 2016 Downtown Plan

Exhibit 4: Certified Copy of Ordinance ZO-11-2017

Exhibit 5: Certified Copy of ZPC October 18, 2022 Report of Proceeding

Exhibit 6: Certified Copies of R-02-2018; O-22-2018, O-23-2018 and O-24-2018

Exhibit 7: Certified Copy of ZO-14-2019

Exhibit 8: Certified Copy of ZPC October 4, 2022 Report of Proceeding

Exhibit 9: SB Friedman Three Options Financial Return on Investment

Exhibit 10: Certified Copy of January 10, 2023 Report of Proceeding

Exhibit 11: ZPC Written Report to City Council dated January 31, 2023

Exhibit 12: Certified Copy of ZO-03-2023