A First Amendment Day of Reckoning for Florida, Now is it Chicago's Turn?

Source: K. Tarrant

Mr. Brian Strauss along with Attorney James McKay testify at a Sept 11, 2017 Chicago Zoning Committee meeting in City Hall. Despite their plea they were unable to stop a retaliatory downzone known as "spot-zoning" on the Strauss property, a building which the Strauss family owned for decades.  Photo Credit: K. Tarrant

When Fane Lozman of Riviera Beach City, Florida was arrested for alleged disorderly conduct at a city council meeting, he filed a federal lawsuit.  His lawsuit claim was that his arrest was more about retaliation for his criticism of public officials than about his conduct at the council meeting. According to the Lozman lawsuit, the arrest was part of a municipal policy of intimidation. Lozman was no stranger to Riviera Beach city council, having fought many battles as a civil rights advocate trying to help save people's homes from being taken via eminent domain. According to yesterday's Supreme Court decision, "Justice Anthony M. Kennedy, writing for the court, said a citizen’s ability to criticize government without fear of retribution ranks high in the hierarchy of First Amendment values.” It was a victory for Fane Lozman and his First Amendment rights.

A much-awaited First Amendment rights decision very similar to the Lozman case in Florida rests here in Chicago.  While the damaging effect of an old Chicago political trick called “spot-zoning” is the main theme of the Chicago case, its filing in the Northern District Federal court is also prompted by the alleged retaliation against a small business owner and his civil rights. The case of Brian J. Strauss Vs the City of Chicago and Alderman Proco Joe Moreno awaits the opinion of Northern District Court Judge Rebecca R. Pallmeyer.

Double Door Iconic Sign at 1572 N. Milwaukee Ave. Source: Wikipedia

Double Door Iconic Sign at 1572 N. Milwaukee Ave.  Photo credit: Wikipedia

In July 2017, Mr. Strauss filed a federal lawsuit against the City of Chicago, First Ward Alderman Moreno and the Committee on Zoning, Landmarks and Building Standards, claiming that Alderman Moreno used his elected office to wage a campaign of harassment against Mr. Strauss. It began when Strauss wanted to evict a commercial tenant for breaking their lease agreement but the Alderman wanted to force the delinquent tenant, a long-time campaign contributor, back into Strauss’ building.  Part of the federal lawsuit claims that Mr. Strauss was deprived of his right to the equal protection of the laws because the City of Chicago and Alderman Moreno proposed  "three separate downzoning ordinances that targeted only [Strauss] and his building, eventually passing one of them, that arbitrarily singled him out, that were completely out of character with both the zoning and actual uses of the neighborhood, that were proposed in bad faith, that offered no benefit to the general community, that bore no legitimate governmental objective and were done for personal rather than a public interest in violation of the Fifth and Fourteenth Amendments of the United States Constitution and 42 U.S.C. 1983." The result of these alleged retaliatory actions by an Alderman and a zoning committee caused Mr. Strauss "economic harm, e.g. loss of sales contracts, loss of rental income, a decrease in his building’s market value, as well as physical and emotional damages."

Many local governments including Chicago have used spot zoning to coerce or punish businesses or building owners into falling in line with an administration’s goal. Courts have ruled that “unreasonable, capricious and discriminatory” spot zoning is illegal and can be reversed, but only after a potentially costly legal battle. Mr. Strauss has endured this legal battle for the past three years.

Mr. Strauss, a Chicago fireman, has owned a multi-unit building in Chicago's Wicker Park neighborhood since the early 70’s. In the past few decades, the street-level portion of his building was rented out by a popular music venue which went by the name “Double Door”, named after the iconic sign that had hung for decades on the building. The sign was originally for a liquor store that the Strauss’ also had owned in that very space.

In 2016, financial and legal disputes between the Double Door club owners and Mr. Strauss  led to Double Door being evicted from its location (1572 N. Milwaukee Ave.) after violating its lease. In August of 2016, Cook County Judge Orville Hambright ruled in favor of Strauss and ordered Double Door out of the property by the end of 2016. Despite the court order, however, Double Door continued to book music acts and sell tickets past their ordered eviction date. Double Door was formally evicted by the Cook County sheriff in February 2017.

On February 6, 2017, six months after the Double Door lease expired, with no lease renewal submitted, Mr. Strauss requested that the venue leave peacefully. That is when Alderman Proco Joe Moreno (1st ward) interfered in a routine private business dispute attempting to force Strauss to rent to Double Door—even after a court ordered Double Door to leave the building. Moreno represents Chicago’s 1st Ward encompassing the Wicker Park neighborhood where the building that housed Double Door is located. Through his power to change zoning and his influence at City Hall, Alderman Moreno simultaneously acted as a real estate agent, lawyer and manager for the Double Door owners.

Alderman Moreno initially gave no reason for introducing the proposal to downzone the building. But one of Double Door’s owners, Sean Mulroney, confirmed to DNAinfo that Moreno attempted to downzone the building, “to protect Double Door by making the property less appealing to future renters.” By lowering the zoning of Mr. Strauss' building, Strauss would lose millions in value for the building and also lose tenants.

Ald. Proco Joe Moreno Feb 2017 verbally attacking Mr. Strauss outside of the Double Door Bldg. Source: Project Six Video

Ald. Proco Joe Moreno on Feb. 25, 2017 verbally attacking Mr. Strauss outside of Strauss' Bldg.   Photo Credit: Project Six Video

Alderman Moreno also made clear his intentions to use his aldermanic power during a confrontation with Mr. Strauss on February 25, 2017, during Double Door’s court-ordered eviction. You can watch the video of this altercation in an earlier investigative report by watchdog group Project Six. Additionally, Moreno orchestrated a clout-heavy, closed-door city hall meeting to further intimidate the Strauss family, as reported in a secondary investigative report by Project Six.

In the nearly three years since Mr. Strauss’ troubles began, he has watched the future of his family's building hang in a precarious position all because of the actions of a single Chicago alderman and the city officials who enabled him. Strauss and his attorney Mr. James McKay believe that Moreno’s behavior was so outrageous, and the city and the zoning committee so complicit, that Strauss’ constitutional rights were violated. Like Fane Lozman in Florida, Strauss offered to drop the federal lawsuit if the zoning remained unchanged. Despite Strauss, his lawyer James P. McKay, and other media sources pleas to the City’s Zoning Committee to end this financially destructive practice of spot-zoning, Mr. Strauss had no choice but to file a federal lawsuit for harassment.

Strauss' lawsuit alleges that Alderman Moreno retaliated against Strauss for his eviction lawsuit against Double Door. Moreno retaliated by proposing the downzoning of Strauss' building while the Double Door eviction was being litigated. Moreno further punished Strauss by not withdrawing the downzoning ordinance after Double Door lost its case.  It seems that the City and Alderman Moreno continued retaliation against Strauss by later passing the downzoning ordinance by council vote as a way to get even for the Double Door eviction and to weaken Strauss' federal lawsuit against them.  Similar to the Lozman case, Strauss claims that his First Amendment rights were violated because he was no stranger to court, having gone on two occasions.  The alleged violation of Strauss' First Amendment rights has a resounding resemblance to the Lozman case and its decision handed down by the Supreme Court yesterday.

Going to court to redress your grievances is protected by the First Amendment.  Mr. Strauss did it the right way, the honest way, the legal way and the civil way - and he was seemingly punished for it.  That sort of retaliation is a blatant violation of Strauss' First Amendment rights and can never be excused by posturing that its all just legitimate legislative action. Chicagoans can only hope that the Strauss case, another unflattering example of the "Chicago way" of intimidating a small business owner, will be the flagship case for a long-awaited end to spot-zoning and the abuse of aldermanic privilege that unfortunately prevails in Chicago's city council.




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