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respect wrigleyA few days ago, after weeks of theoretical negotiation (which, in turn, came after the Chicago Cubs received approval from the Landmarks Commission to move forward with a renovation of Wrigley Field that included seven outfield signs), some of the rooftops around the outfield at Wrigley filed suit against the City of Chicago and the Landmarks Commission, challenging the approval of the Wrigley renovations.

Specifically, they challenge the Commission’s decision to approve the seven outfield signs and expansion of the bleachers, which the rooftops contend are not in the spirit of Wrigley’s landmark designation. In order to claim a stake in that decision – at a surface level, why would it be the rooftops’ business what the Landmarks Commission decides about someone else’s building? – the rooftops have pointed to their contract with the Chicago Cubs, which they claim gives them a property right in what happens to Wrigley (i.e., unobstructed views into Wrigley in exchange for 17% of revenues).

I took a look at the complaint – that’s what you file to start a lawsuit – which you can see here at the Tribune, among other places, and I’ve got some thoughts to offer about the suit, and the implications. This could prove to be a fairly complicated and nuanced fight – but, hey, disputes don’t usually reach litigation if they’re cut and dried.

Caveats: (1) I haven’t been a practicing attorney for a little over three years now, and, even if I were, nothing I’d offer you here is anything more than the modestly educated thoughts of someone who previously had experience with these kinds of lawsuits (presented, where appropriate, in lay terms, so you lawyers and law students, don’t blast me for the informal language); (2) were I working on responding in a case like this, I would have weeks to dig in on every argument, document, statute, administrative rule, piece of case law, etc. This ain’t that. I often found in my practicing days that your initial take on a complaint – and that’s all I can provide you here – is completely wrong once you’ve spent a substantial amount of time running down angles.

All right, then. Miscellaneous thoughts …

  • The gist of the suit is this: the rooftops contend that the outfield views at Wrigley (into the city, the lake, etc., including seeing the rooftop buildings) is wrapped up in the landmark designation, and approving seven signs in that outfield was an abdication of the Landmark Commission’s duty to protect the landmark. And, because the rooftops say they have a property right in what happens at Wrigley, they claim the Commission’s decision was made without due process to the rooftops. Among other things, they seek a reversal of the Commission’s decision and an injunction that would prevent the Cubs from getting the permits necessary to construct the outfield signage.
  • The Cubs, you’ll note, are not named as a defendant. While understandable – the rooftops’ stated beef, at this point, is only with the City and Commission, because it’s their decision that imperils the rooftops (so they allege) – it’s problematic not to have the Cubs in the case. Without getting too legal on you, there are rules about having “indispensable parties” included in lawsuits that could impact their rights. Here, it seems unfair to exclude the Cubs from litigating (if they want to), given that the entire predicate for the rooftops’ asserted property right is their agreement with the Cubs. You can’t really determine that the rooftops have had a property interest impaired without due process unless you first determine, pursuant to the contract, that the rooftops do have a property interest with respect to the planned renovation. Essentially, that’s litigating the terms of the contract, and I don’t see how that can fairly be achieved without the Cubs’ involvement.
  • As you may recall, the Cubs/rooftop contract is subject to a mandatory arbitration provision (in essence, the parties agreed in advance that if they were going to fight about the contract, they would fight via an arbitrator, rather than a lawsuit). If the Cubs are pulled into the case, they would almost certainly argue that the court doesn’t have jurisdiction to pass upon the contract. In that way, this suit looks a bit like an attempt by the rooftops to get a court – rather than an arbitrator – to analyze the contract and determine the Cubs/rooftops’ rights. Might as well try, I suppose, if the rooftops were really opposed to arbitration. All that said, because it seems fundamentally unfair to litigate the terms of the contract without one of the parties to the contract involved in the litigation, I can’t see this suit going forward, as it is presented, without the Cubs involved. And if the Cubs are involved, the arbitration provision becomes an issue. There are also some issues with respect to whether the rooftops are jumping the gun on challenging the Commission decision before the Cubs actually start the process of construction (“ripeness”), and whether the rooftops have standing. In other words … it seems like the outset of this suit is going to involve a whole lot of procedural wrangling.
  • I don’t have a robust understand of the standard for a court reviewing the substance of an administrative decision in Illinois. But, generally speaking, it’s hard to see a court substituting its judgment of what constitutes permissible changes to a landmark for the (unanimous) judgment of the administrative body charged with doing that very thing.
  • One element that factors prominently into the rooftops’ argument is whether they were given “due process” in the City/Commission’s decision to approve the outfield changes at Wrigley Field. The rooftops did have an opportunity to present at the Commission’s hearing, though it was brief. Including them more beyond that would have required the Commission determining that the rooftops did have a property right in what happens at Wrigley (which, in turn, would require serious battling about the terms in the contract). That feels a little outside the scope of the Commission’s ambit, and might more appropriately have been challenged before the Commission rendered its decision. Still, that was a tough spot for the rooftops to be in, particularly when you consider that negotiations were ongoing and an agreement was always possible. This is easily the most complicated layer of this fight.
  • The rooftops go to great lengths to cite the view of townhomes as part of the landmark character at Wrigley, but I’m not sure that’s not an argument that cuts both ways – do the rooftops now resemble the buildings that gave the original views that character? I’d argue there’s still character – some people find it cool to see all those seats and people on the rooftops – but it’s a very different view, with respect to the rooftop buildings, than it was back in 2000.
  • (Interesting aside: the rooftops allege that, after the Cubs received approval for seven signs, the team used that as leverage to ask the rooftops to sell to them at “a fraction” of the actual value of the buildings/businesses, lest they see their businesses destroyed by the signs. Again, that’s the rooftops’ allegation.)
  • Keep in mind, if you decide to read the lawsuit for yourself: parties will always state their arguments/contentions in the boldest fashion possible. Both sides. It’s just the way litigation works. So don’t be swayed by the aggressiveness of any particular language in this complaint, or in any responses from the City (or Cubs, if they get involved).
  • Generally-speaking, parties have 30 days to “answer” a complaint, but that can be extended, and, in significant litigation like this, there is typically a bout of motions (first, a motion to dismiss, then a response from the other side, then a reply from the moving side), which can take several weeks. In this case, depending on how the Cubs are viewed – i.e., whether they are a required party – that could stretch even further. That is all to say, it could be a very long time before this case even proceeds to the next step (which is, itself, a very early step in the process – there is lengthy discovery, more motions practice, pre-trial procedures, pre-trial motions, trial, post-trial motions, and appeals before you can say a case is concluded (this sometimes takes a year or (much) longer)). Typically, however, parties engage in court-mandated (or suggested) settlement negotiations/conferences before a case actually proceeds to trial. Still, even if the sides use this lawsuit as a jumpstart to further negotiations, that can take a long time, too.
  • I’ve reached out to the Cubs for comment on the lawsuit and am awaiting a response. I’ve seen other writers saying that the Cubs still plan to proceed with the rest of the renovation (for example, starting work on the plaza and subterranean clubhouse) after this season, the lawsuit notwithstanding. Until I hear that directly from the Cubs, however, I won’t say much on the lawsuit’s impact to the time line here. Given that the lawsuit challenges the very approval of the renovation plan, I have concerns on the time-based impact of the lawsuit. As I said, I will await comment before jumping to any conclusions.

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