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Border War

When a 40-foot-high mansionbegan going up six inches from his son's property, developer Wayne Berman took on the business-as-usual zoning game.



By his own admission, Wayne Berman isn't the sort of guy to lead the charge for zoning reform in Chicago. He prefers to look the other way as he goes about his business of rehabbing, selling, and renting properties all over town.

Yet last month Berman filed a lawsuit that may do what some reform activists acknowledge they can't: force the city to be more scrupulous about how it regulates zoning and development in the hottest real estate markets. "I'm no activist--I'm just a guy who doesn't like to be pushed around," says Berman. "If you push me, I'm gonna push you back hard."

Berman's a combative native New Yorker who talks in raspy, rapid-fire bursts--"Imagine a guy who looks a little like Rodney Dangerfield and acts like Danny DeVito" is how one of his friends puts it. He came to Chicago about 30 years ago to take a job with the federal government. For a few years he taught in the public schools, then he got his law license and began practicing real estate law. About ten years ago he started rehabbing. "I'm a little guy, not a big shot," he says. "I do OK, but I'm not huge. Understand? I've got some property here, some property there. I don't build new buildings. I rehab old ones. I'm on the up-and-up. But come on, I think I understand how the system works."

He was content to continue his relatively unobtrusive existence, until one day this fall he noticed a lot-line-to-lot-line building going up next to the house he and his son, Steven Berman, own on the 2000 block of West Dickens. "They had a foundation coming up about six inches from our house," says Berman. "I didn't like what I saw, so I asked a few questions. And I didn't like what I heard."

The developer was intending to build a three-story, nearly 40-foot-high single-family home, says Berman. "I'm not against a guy building something, but I had issues with this thing." For starters, the new house would tower over the hot tub his son had constructed on the roof of his building. "I don't live there, but my son does," he says. "My son's a young guy--26 years old. He likes to use his hot tub. What kind of privacy can he have if his neighbors are looking down on him?"

He says the new house would also be too close, would cut off sunlight, and would probably lower his property's value. And the construction workers had already crossed onto his property and damaged a tree and some shrubbery. "Plus I figured they were violating the city's zoning code," he says. "You can't build a 40-foot building like that in a residential neighborhood without a zoning variance, and you can't get a variance without a zoning hearing. And you can't have a hearing without giving your neighbors notice--because the whole point of a hearing is to solicit testimony from residents. And I know they didn't send out proper notice, because neither my son nor I got any."

Berman says he did a little digging at City Hall and found out that the house was being built by Edward Gobbo, a developer with a Glenview address who was represented by James Banks, one of the most prominent zoning lawyers in town. On November 1, 2000, Banks had applied for a special-use variance from the Zoning Board of Appeals that would allow Gobbo to build his mansion. According to city records, Banks sent a notice of Gobbo's request to all the property-tax payers of record within 250 feet of Gobbo's lot, and no one opposed the proposal. On January 19 the ZBA held a hearing on the matter, and Banks and Gobbo were the only people who showed up. After the hearing the ZBA, a five-person board appointed by Mayor Daley, unanimously approved Gobbo's request, noting that it had "fully heard the testimony and arguments of the parties." It concluded that the "proposed use will not cause substantial injury to the value of other property in the neighborhood in which it is to be located."

But Berman contends that the ZBA was inaccurate when it contended that it had heard "testimony and arguments of all the parties," because Banks had contacted only the taxpayers and not the titleholders of record. "It may seem like a unimportant distinction to a novice, but it's really very important," he says. According to him, the taxpayer of record is "what lawyers call a secondary indicia of ownership. In a lot of cases, the official taxpayer of record is the bank or mortgage company that holds the mortgage. Or maybe it's the guy who used to own the building and the county has never updated its books. The point is that the listed taxpayer of record often has nothing to do with a property and couldn't care less about a special use going up next door."

Neither Berman nor his son is the taxpayer of record for their house on Dickens. "The name on the tax records is a former partner of mine who used to own a piece of the building," says Berman. "We bought him out eight years ago. He's got nothing to do with the property. He doesn't live there. He doesn't own any of it. Yet he was served notice, and we weren't." Like plenty of other Chicagoans, Berman's been paying the taxes for years, though he never had the name on the record changed.

Berman believes Banks should have sent his certified letters to all the deed owners within 250 feet of Gobbo's project--which seems to be what the zoning ordinance says he should have done. Section 11.10-3 states that notice is supposed to be sent to "owners," which it defines as "being such persons or entities as recorded in the Office of the Cook County Recorder of Deeds or the Registrar of Titles and as may appear on the most recent tax records of Cook County." Berman is well aware that checking just the taxpayer records is standard practice, but he insists it isn't any harder to check deeds than tax records. "All they had to do was go to the Cook County Recorder of Deeds and look at what they call the tract book, which has all the property deeds in sequential order," he says. "If they had done that, we would have received a notice that they planned to build a 40-foot building next to our home."

To help make his point, Berman hired a couple of college students to search the tract book. "I found out that there are 156 parcels of land within 250 feet of the proposed house," he says, "but 37 title owners did not receive a notice of the proposal."

Berman says he also contacted Gobbo and asked him to modify his plans. "I wanted him to lower the building and move it away from the lot line," he says. "He wouldn't. Maybe he thought I'd just go away. But this is my son--my flesh and blood, my family. I can't walk away."

On November 30 Steven and Wayne Berman filed suit, charging that Gobbo and his company had "failed to provide notice to the plaintiffs of their Application for Special Use." Therefore, "the purported Special Use and Variations that the Defendants obtained are invalid and of no effect." According to the suit, Wayne Berman contacted Gobbo and "demanded that the excavation on Defendants' Property stop and that the dimensions of the planned building be altered. For approximately three weeks, the excavation did stop, but on or about November 14, 2001, the excavation and construction on Defendant's Property resumed without notice to Plaintiffs." The suit seeks a "permanent injunction" against Gobbo's current building plans, as well as attorney fees and "compensation for the damages [plaintiffs] have suffered as a result of the defendants' illegal construction activities."

According to Berman, there's a larger issue at stake: "The right of home owners to voice their opposition to zoning variances. The way they do this gives the system cover. The Zoning Board can say, 'Hey, we had a hearing, and there was no opposition.' Well, of course there was no opposition. No one knew. If you don't know you can't oppose. This probably happens all over town. Most people never know what's coming until one day they look out their window and see some guys putting up a 40-foot mansion next to their home."

At a recent hearing on the case, Kareem Musawwir, the city's chief zoning examiner, testified that the city doesn't usually require developers to notify title owners because it's too expensive to find out who they are. Berman says, "On cross, we asked him how much it costs to do a tract-book search, and he said it doesn't cost anything--just your time, of course. That was it. No further questions. See, these developers, they'll go on and on saying it's too expensive or time-consuming to do a tract-book search. Come on. Don't insult me. I'm not stupid. This is not about money--it's about notification. They use the taxpayers list 'cause it limits notification. The more people you notify, the more people may show up to oppose your proposal."

Since filing his suit, Berman has emerged as an unlikely hero to activists in and around Bucktown, West Town, and Wicker Park, where rampant development and wholesale gentrification are major issues. "There's just not enough notification with zoning requests," says Peter Zelchenko, a West Town activist. "There's a lot of spot zoning, where one lot of land will be changed to allow a specific development. It's a sore spot to a lot of people. This development brings up housing prices and forces working people out of the neighborhood, but people don't get a chance to speak up at public hearings."

Zelchenko hopes Berman's suit will force the city to give better notification of zoning-change requests. "The whole matter of notification is very important, since it's one of the few tools ordinary residents have to control the zoning and development process," he says. "You can't control development if you aren't given proper notification. It would be very helpful to have some sort of case law come out of this suit. In fact, they should broaden the law to involve tenants. I think tenants should be officially notified of proposed zoning changes. A huge chunk of the tax base comes from tenants--it's passed on through rents. Shouldn't they have rights?" He also hopes the suit puts pressure on near-west-side aldermen such as Jesse Granato and Ted Matlak to be more vigilant about zoning and development requests.

But Berman clearly doesn't want to lead an antigentrification crusade. He says he has no political agenda, and a crowbar couldn't pry a nasty word about Matlak out of him, even though the 32nd Ward alderman OK'd Gobbo's request before the ZBA approved it. "Please," Berman says, "I'm not looking for any fights with him."

Daniel J. Pierce, Gobbo's lawyer in the case, won't comment on the matter. "It's totally inappropriate to talk about pending litigation," he says. "I can't do that." Neither Banks, Gobbo, nor Matlak returned calls for comment.

Zelchenko may hope the suit leads to new case law, but Berman's looking to settle. "They know what I want, though I don't know if they want to give it to me," he says. "This is not an easy thing to do, you know. This case costs 10, 15 thou in legal fees--at least. And if I win on the circuit-court level, I have to put up 40 grand for an appeal bond--they call it an injunction bond. The point is, a normal guy can't afford this. A normal guy figures, what the hell, and walks away and lives with a tower hanging over his house. But I ain't a normal guy. I'm not taking this crap. I'm telling you, they picked the wrong guy to mess with."

Art accompanying story in printed newspaper (not available in this archive): photo/Jon Randolph.

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