2019 Map or Text Amendment?

The legal team advising the residents has been arguing with the City since May that the 2019 Northwestern proposal is not a text amendment, but is instead a map amendment. The difference is very important, both legally and because the decision making process that the City and NU would have to follow in a case of a map amendment is very different than for a text amendment.

Evanston, IL Code of Ordinances

6/15/2019

5-3-4-7. - OPPOSITION TO AMENDMENT.

If prior to the close of a Plan Commission hearing held pursuant to Subsection 6-3-4-6fE). a written protest against any proposed map amendment, signed and acknowledged by thirty percent (30%) of the owners of property whose lot lines are located within five hundred (500) feet of the boundary of the area to be amended, inclusive of public rights of way, is filed with the City Clerk, passage of the amendment shall require a favorable vote of three-fourths (3/4) of all the Aldermen elected to the City Council.

(Ord. 102-0-94)

The following document was submitted the Plan Commission. It was submitted twice, with just a change of the date on the initial page to account for the PC meeting postponement, initiated by NU.

17 residents who live within 500 feet of the U2 property in question signed the petition.

We are residents of the area bordering the U2 Zoning District (Northwestern University athletic facilities). This is the only U2 district in the City of Evanston.

Northwestern University (NU) has proposed a zoning text amendment that would expand the uses of their facilities as a matter of right (i.e., no special use applications ever required) by striking from Section 6-15-7-2 of the Zoning Ordinance the underlined words:

"Community and cultural events of a nonprofit nature intended primarily for

residents of the City and amateur athletic events shall be permitted."

If approved by the City this amendment will convert Welsh Ryan Arena from a venue for amateur sports and nonprofit community and cultural events to one which would host unspecified for-profit entertainment events, including professional sports.

We object to going forward with the presentation of the proposed amendment

to the Plan Commission on July 10, 2019. Before any hearing can be held:

1. NU must provide mailed notice of the proposal to the affected residents

of the City in accordance with Section 6-3-4-6(c) of the zoning code; and

2. A determination must be made as to whether the proposed "text"

amendment is in actuality a "map" amendment.

THERE HAS BEEN NO MAILED NOTICE OF THE PROPOSAL

Section 6-3-4-6(c) of the Zoning Ordinance provides that when any "petition to amend the text of the Zoning Ordinance or the Zoning Map," the City must provide mailed notice to all property owners within 500 feet of the affected property about the proposed amendment and the public hearing to be held on that petition. Further, that notice must be provided 15 to 30 days before the date of the public hearing. Compliance with this requirement is necessary not only to ensure that property owners most likely to be affected will receive timely notice, but also to identify the actual wording of the proposed amendment. In this case, although NU initially proposed the wording set out above, NU representatives have since stated publicly that they intended to revise the proposed amendment. Nevertheless, we are not aware of any new revisions that NU has introduced. Everyone — the members of the Plan Commission as well as nearby property owners — needs to know the actual language of the amendment being proposed before its effects can be weighed.

As of now, no mailed notice that would comply with section 6-3-4-6(c) has been provided. The Plan Commission's Administrative Rules and Procedures state that this notice must be sent before the public hearing can be held. (Art. XII.) We ask that no hearing on NU's proposed amendment be commenced until this notice requirement has been complied with.

THE PROPOSED AMENDMENT IS IN FACT A MAP AMENDMENT

Even though Northwestern has styled its request a "text amendment" (by "merely" striking 5 words from the current ordinance), it is actually seeking a "map amendment" that would drastically change the type of events permitted in one portion of the U2 district (Welsh-Ryan Arena) to allow large-scale commercial entertainment and sporting events.

Unlike an Rl or B2 district, the entire U2 district is a single piece of property held by a single (non-property-tax-paying) owner. Ordinarily, a property ovmer who wished to change the use of a single piece of property from, say, residential to commercial would have to seek a map amendment. Here, the entire U2 district is a single piece of property, and the owner wants to radically change the uses allowed on part of that property.

NU initially contemplated requesting a text amendment that would include Ryan Field, which has capacity for 47,000 spectators. The current version of the proposed text amendment would limit attendance to the capacity of Welsh Ryan Arena. In other words, the text amendment will apply to only one building in the city. Zoning text amendments are supposed to be of general applicability within the city. This is impossible when the text amendment only applies to one building. In essence, NU's proposal is a map amendment masquerading as a text amendment.

The drastic change to the use of this parcel makes this a map amendment. See Shaw V. Township of Upper St. Clair Zoning Hearing Board, 71 A. 3d 1103 (Pa. App. Ct. 2013) (although a zoning ordinance on its face appeared to be a text amendment that added a single conditional use to an existing district, in reality the new use caused a substantial change to the zoning of that tract of land and therefore constituted a map change; accordingly, failure to give proper notice required invalidation of the amendment ordinance). See also Diamond, Stewart H. & Silverman, David S., Ancel, Glink, Diamond, Bush, DiCianni & Krafthefer Zoning Administration Handbook, p. 32 ("[C]hanging the zoning classification on a parcel of land from one classification to another" is a map amendment, also known as rezoning).

MERITS OF NU'S PROPOSAL

There are a multitude of reasons why NU's proposal should not be approved, and which we are eager to express to the Commission and the Council. However, our immediate concerns are the procedural defects in this proposal which need to be addressed before any further proceedings can be had.

CONCLUSION

We therefore request the Commission order notice be mailed to all addresses within 500 feet of the boundaries of the U2 university athletic facilities district and its contiguous parking lot, and that no hearing be held until mailed notice is sent in compliance with section 6-3-4-6 of the Zoning Code. Further, the residents (as well as the Plan Commission) need a determination as to whether the proposed amendment should be treated as a map amendment prior to the start of the hearing.

The many types of injurious consequences to the residential neighborhood surrounding the U2 district arising from NU's request will extend into perpetuity. It is not unreasonable that the residents who will forever suffer the impact of NU's monetizing of its athletic facilities be notified well in advance of a hearing on its request, and that the exact outlines of NU's proposal is made clear. Basic fairness and principles of due process require no less.

The following email was sent to each alderman individually. We present the one sent to Alderwoman Fiske.

November 8, 2019

Subject: Potential Legal Problem with Northwestern's rezoning proposal

Dear Ms. Fiske,

For some time, you may have been hearing that the proposal by Northwestern to change the zoning of its Central Street athletic complex has not complied with the procedural requirements for this type of proposal. That is because the proposal essentially rezones a single piece of property—something that is usually termed a “map amendment.” As you may know, map amendments have different requirements, including the requirement that property owners within 500’ of the property to be rezoned must get mailed notice. Owners within 500’ of the athletic complex requested such notice but City staff declined to provide it.

The City staff appears to believe that the proposal is a text amendment because it affects a whole zoning district—the U-2 district. But that approach does not apply where, as here, the entire “district” is just one piece of property. There are no other properties zoned U-2 in Evanston, only the property at 1501 Central Street. Further, the changes made by the proposal are major, essentially rezoning the athletic complex as a mixed University/Commercial use in place of the old exclusively University-related use. There is legal precedent that this type of change—a substantial change to the zoning of a single piece of property—must be considered a “map amendment” even if the applicant (here, Northwestern) submitted it as a text amendment. If the proposal is voted on by City Council without meeting the requirements for a map amendment, it is potentially invalid and subject to attack through a lawsuit.

I urge you to read the attached more detailed information about this issue before you head to City Council on Monday night. At the very least, some consideration of this issue would be helpful to avoid a potential lawsuit over the proposed ordinance.

Very truly yours,

Laurie McFarlane