Four years ago there were two overgrown vacant lots across the street from the apartment building where I live. The adjacent empty lots made our block--a short section of Warner Avenue just west of Graceland Cemetery--look like a smile with a few teeth missing. Today, one of those lots has become a place called Warner Park and Gardens. It has a landscaped lawn spotted with trees and shrubbery, and two shaded picnic tables at the end of a spiral brick walkway. It is, when the weather is warm, a beautiful place for an outdoor breakfast.
Warner Park is there because one of my neighbors, a feisty woman named Lois Buenger, decided to put it there. She wanted to put a park on the other lot too, but her effort was sidetracked by a bitter four-year legal battle between the local neighborhood association and two architects, Brad Winick and Mark Leitson, who wanted to build a pair of single-family homes on the property.
This uncompromising struggle over this piece of real estate had elements of melodrama, including a woman in jail for counterfeiting and her disabled husband (now deceased), as well as accusations of fraud, slander, and aldermanic corruption. "At times, when I was writing the pleadings for this case," says attorney Tim McGonegle, "I felt like I was writing the script for a B-movie."
McGonegle, who works for a large downtown law firm, lives around the corner from Warner Park and is an active member of the Graceland West Community Association (GWCA). He represented Buenger and the association for free, saving them from legal bills that could have run as high as $25,000.
Nobody donated legal services to Winick, who chooses his words carefully when talking about the case. He says he feels "victimized by people's web of conspiracy theories," and he's quick to point out that during his career as an architect and urban planner he has worked for a number of nonprofit, public-sector organizations. While in graduate school, for example, he was an intern with Peoples Housing, a low-income housing-development organization based in Rogers Park. "If there's any thought we were big developers--silk-suit, cigar- chomping guys from downtown--that's not our background. Knowing who I am and the type of things I've been involved in, it was distressing to be thrown on the wrong side of an 'us versus them' issue. It was somewhat Felliniesque at times."
If Buenger were a movie character, it would be the indefatigable gardener played by Peter Sellers in Being There. Dressed in a floppy hat and an old T- shirt, she is a fixture in the garden on summer days. Sometimes she tends to the plants herself; other times she patiently explains proper watering techniques to neighborhood children. Growing things is her job as well as her hobby, for she teaches gardening to special-education students in the public schools.
Whatever else she is doing, Buenger is always talking--about the garden, about the neighbors, about what you were doing last night. She was born on Warner Avenue in 1933, and she knows--more or less--who lives in every house on the street and who used to live there. Her sense of community dates from an earlier era, when people in city neighborhoods actually talked to one another, instead of living as isolated, anonymous apartment dwellers. Her favorite thing about Warner Park, she says, is not that the flowers look nice, but that it has become a "center of neighborhood activity." She can quickly tick off which people worked on each area: the children who planted flowers in the back, the young couple who spent a day painting the garage, the man who spent hours arranging the rock garden.
Buenger moved to Hyde Park in the 1950s, then returned to the north side in 1976 to take care of her aging mother, who has since passed away. She lives a few doors from the park, on the first floor of a modest two-flat that was purchased by her grandfather, a Swedish blacksmith, for $8,000 in 1915. The neighborhood, which consists of a few square blocks in the northwest corner of Lakeview, features attractive single and multifamily dwellings on pleasant tree-lined streets. The houses are viewed as hot properties, far enough away from the seedier parts of Uptown to be considered safe investments. Two-flats in this neighborhood can sell for more than $200,000.
The 1915 mortgage on Buenger's property was paid off decades ago, and so she inherited a home owner's dream: a building with guaranteed rental income and virtually no monthly expenses. But Buenger doesn't dream the way most home owners do. She rents out the second-floor apartment in her house for about $200 a month less than what other landlords get for similar units. And in July 1987 she walked into a bank, took out a new mortgage on her house, and plunked down $82,000 to buy 1446 Warner, a vacant lot in one of the most desirable real estate markets in the city--and then proceeded to turn it into a community garden.
At the time she bought the property, she and the neighborhood association had been trying to buy the next lot, 1440 Warner, for nearly a year. She says she bought the 1446 lot on her own, not on behalf of the GWCA, and she insists the purchase was not part of any land-acquisition master plan. In fact, she says, she bought the lot on impulse--because she got angry when a developer made an intemperate remark about one of her favorite trees. "I was just standing there in front of the lot, and a Century 21 man came by. I asked him, 'Are you interested in this property?' He said, 'Yes, my client will have it by this afternoon.' So I said, 'What will your client do?' And he said they were going to put up town houses. I asked him 'How much will they sell for?' He said $325,000 each.
"Then I said, 'I hope you won't knock over that ginkgo tree.'" The tree, she told the real estate agent, is 100 years old, very rare, and almost impossible to replace. "He said, 'It may be worth something to you, lady, but not to me.'
"That's when I went to see Lee Harris," she says, referring to the real estate agent who was handling the sale of the property. "Harris said I had to have $10,000 by that day. I gave him a check for $1,000, and got the other $9,000 the next day. I didn't think about it that much. I just thought, this is important--to not have people say that a town house is worth more than a tree."
She laughs. "The funny thing is, that tree isn't even on this property." In fact, the ginkgo tree that persuaded Buenger to buy the lot is actually located at the front of the 1440 property--the land that everyone has been fighting over in court for the past four years.
The case of Bradley W. Winick and Mark Leitson v. Graceland West Community Association, Lois Buenger, and Unknown Owners finally went to trial during the last week of July, in a small courtroom on the 24th floor of the Daley Center. Each side claimed to have a deed to the property at 1440 Warner, and Judge John J. Anthony Scotillo, presiding over a nonjury trial, would have to determine which was the true one. (Winick and Leitson actually had two, so there were three deeds to choose from.)
If the neighborhood association won, Warner Park and Gardens could be expanded to the second lot--and Winick and Leitson would lose the tens of thousands of dollars they had spent trying to develop the property. If the developers won, there would be two new, expensive houses in the neighborhood--and an unspecified amount of damages to be paid. The developers had initially filed suit only against the neighborhood association, but they later decided that Buenger was the ringleader and added her as a defendant. So Buenger would have substantial debts if she lost the case--perhaps as much as $40,000, she figured. To pay such a sum, she would probably have to sell her house--or the land that has become Warner Park and Gardens.
Joseph Davis, the lawyer who represented Winick and Leitson, lashed out angrily at Buenger during the trial. He painted her as a scheming manipulator who resorted to betrayal and deceit in an effort to seize control of a piece of land that was rightfully owned by his clients. "What can I say about Mrs. Buenger?" Davis asked Judge Scotillo. "What can I say about Mrs. Buenger not to hurt her feelings, since she is in court today? Your honor, she is a human being who is a zealot, and in her zeal she went beyond all bounds of fairness. . . . This is what zealotry does to people. It warps their personality. It warps their sense of fairness. The means no longer matter, so long as the ends are justified. Open space was the goal. That was the ideology that swept away all her good sense and morals and let everything go by, because it was open space."
McGonegle, representing Buenger and the community association, was more restrained in his courtroom presentation. He saved his verbal barbs for the written documents he prepared, which include references to "a tangled web of intrigue involving various intermediaries" and "repeated backroom dealings" on the part of Winick and Leitson in their effort to secure title to the lot at 1440 Warner.
Judge Scotillo wasn't especially interested in the morality play the two lawyers were trying to create. On the first day of the trial, for example, McGonegle was questioning Winick about his place of residence, trying to prove that he was an "outsider" who came to impose an unwanted development on the neighborhood. Davis objected that the questions were irrelevant. Judge Scotillo agreed. "You don't acquire real estate by having good intentions," he said. "It seems like you're trying to show an evil motive here. Assume there was an evil motive, and they got a good deed. Is there a case?"
McGonegle conceded that there wouldn't be.
"I'm having a little trouble," said Scotillo, "with issues involving ulterior motives. As a fact finder I can't say you have a good deed but you lose the case because you had a bad motive. I deal in deeds and methods of transferring real estate. Void deeds don't convey property, and good deeds do. Deeds in the property sense, I mean."
The confusion about 1440 W. Warner began in the spring of 1986, when Buenger, along with a neighbor named Lynn Takata, organized a dozen neighborhood children to plant a "children's fantasy garden" on the empty lot at 1440. The property, 50 feet wide by 125 feet long, had been vacant for a number of years due to a fire. (The lot at 1446, identical in size, was empty for the same reason.)
The success of the project prompted Buenger, Takata, McGonegle, and other members of the GWCA to form the 1440 Warner Committee, to investigate the possibility of acquiring the lot and turning it into a permanent park. The last known owners of the land were Robert and Georgia Retamal, who had lived for years in their Civil War-era rooming house with a shifting cast of friends, tenants, and relatives. As the neighborhood grew more upscale, Buenger recalls, the Retamals began to feel a bit out of place.
"They were hillbillies," she says. "Georgia was from Kentucky. There were people constantly fixing cars there. I think maybe it was a chop shop. They would all sit out on the porch of that house--and as the yuppies started to move in, they were horrified at the likes of Georgia and her people. Georgia used to tell me she felt it was like that song 'Harper Valley P.T.A.'--all these people looking at her and criticizing her."
Once the Retamals' house burned down, the neighbors didn't have to worry about Georgia and "her people" hanging around on the street. But they still had the house itself to contend with, since the Retamals never did anything to take care of the ruined structure. Eventually the city stepped in and demolished what was left of the building. As a result, the city had a lien against the property of about $4,500 for the cost of demolition.
The Retamals were also careless about paying off the $50,000 they owed the previous owner of the rooming house, John Hagen, who is now retired and living in Arizona. And they hadn't paid real estate taxes for a few years either.
By the summer of 1986, however, bad debts and unpaid taxes were the least of the Retamals' problems. Robert was recuperating from a stroke and living in a basement apartment on Sheridan Road in Uptown. Georgia couldn't help him much because she was in the Metropolitan Correctional Center in downtown Chicago and was awaiting transfer to a federal penitentiary in Kentucky. She had been convicted of counterfeiting U.S. currency.
Georgia didn't want to be transferred to Kentucky. She wanted to appeal for an early parole so she could take care of her ailing husband. But to get a parole hearing she needed a lawyer. And to get a lawyer she needed money. Property owners like Georgia are called "motivated sellers." Georgia was exceptionally motivated. She signed over deeds to her property three different times.
Members of the 1440 Warner Committee were interested in buying the property on behalf of the GWCA, but they weren't quite sure who the owner was. Was it Georgia and Robert? Was it John Hagen? Or could the city claim the land in exchange for unpaid fees and taxes, and then auction it off at a sheriff's sale? The committee sent a delegation to see Jerome Orbach, who was then alderman of the 46th Ward. He told them a sheriff's sale was in the works and gave them the name of a man in City Hall to contact. But the man could never come up with definite information, and he eventually stopped returning phone calls.
"It was like a rotating crap game," Buenger recalls. "Nobody knew when this sheriff's sale was supposed to be."
Winick and Leitson had better luck. They tracked down Joseph DeMaria, a lawyer who had handled the Retamals' business affairs for many years, and offered him $1,500 for the property. Then they tracked down John Hagen's lawyer and offered him $3,000 to settle Hagen's $50,000 claim. Unless Hagen accepted that price, they warned, he could lose his entire claim as a result of the impending sheriff's sale. (That warning was wrong, since Hagen could easily have preserved his claim and presented it to whoever bought the land at the sheriff's sale. Nonetheless, Hagen's lawyer decided to take a $6,000 settlement.)
To put the final piece of their land-acquisition puzzle together, Winick and Leitson eased through the same City Hall bureaucracy that had proved an impenetrable barrier to the members of the GWCA. They had no problem finding out that the sheriff's sale for 1440 Warner was scheduled for September 10, 1986. On September 9, Winick walked into the corporation counsel's office, presented himself as the new owner of the property, and paid off a $4,900 demolition lien. The sheriff's sale was canceled. For a total price of about $12,500, Winick and Leitson had bought themselves a vacant lot--or at least they thought they had.
It wasn't until a few months later that members of the GWCA found out that the two developers had snatched up the property they had been trying to buy. Nobody knew for sure how Winick and Leitson had managed to find out about the mysterious sheriff's sale--but more than a few people suspected that Alderman Orbach had been pulling strings on behalf of the two enterprising young architects.
"We were meeting with him [Orbach]," said Buenger, in a court deposition taken in November 1987, "and we couldn't find out where the sheriff's sale was, and he was an expert in housing court and he wasn't, somehow he wasn't helping to cut through the red tape. So his connection, it was just wondered about. . . . It was all just murky stuff."
The allegations of undue influence, says Winick, are totally untrue. "I've never met, spoken to, or had contacts through ex-alderman Orbach. He wouldn't know me if I walked in and sat down next to him."
Yet with or without clout, Winick and Leitson had arranged quite a real estate deal for themselves. A year after they purchased the lot for $12,500, Buenger would purchase the lot right next to it for $82,500. With newly constructed houses in the neighborhood selling for $300,000 and up, Winick and Leitson might be able to measure their profits in the hundreds of thousands of dollars.
Their plan ran into trouble, however, for want of a single sheet of paper: a properly executed deed. Because Georgia was in jail, the task of getting her signature on the deed fell to her defense attorney, Craig Katz. Katz, a confident man with a neat mustache, was an administrative aide to Jerome Orbach before he became a defense attorney, a connection that further fueled suspicions about Orbach's interest in the Warner property. It was Katz who would get the $1,500 that Georgia was to receive for selling her land--a down payment on his full fee of $5,000. (Georgia never came up with the rest of the money, and Katz eventually dropped out of her case.)
Katz later testified in court that he worked for Georgia longer than he should have. "She had been referred to me by the alderman of the 46th Ward," he explained. "And I looked at it as doing him a favor to continue to represent her."
Katz visited Georgia in jail on September 10 and brought her a deed. She signed her name--and she signed her husband's name. Because Robert was incapacitated, Georgia may have thought she had the right to sign his name on legal documents. But she didn't.
A few months later a friend of Buenger's who was working at a real estate firm came across a copy of the September 10 deed. The 1440 Warner Committee pondered the document, showed it to a lawyer, and decided it wasn't valid. So they resolved to replace it with a new deed--one that would transfer the property to the community association instead of the developers.
Meanwhile, Winick and Leitson were proceeding with their development plans. But they hit a snag when they applied for title insurance, a routine step for new property owners. The title company noted that Robert Retamal hadn't signed the September 10 deed and instructed them to get a new deed with his signature on it.
In January 1987 Katz was dispatched to fix the flawed deed. He visited Georgia in jail again, and then went to see Robert, who was still living on Sheridan Road and was being cared for by a rotating team of nurses. Katz came back with a document bearing an X in the space for Robert's signature.
Buenger proceeded on a different tack. On March 13, 1987, she wrote to Georgia, who by that time had been transferred to Kentucky. "You may remember me, your neighbor on Warner Avenue," the letter began. Buenger offered to provide character references to help Georgia win early parole. She then asked if Georgia would be willing to sell the lot at 1440 Warner, so that it could be "turned into a permanent park for children." Buenger also wrote, "I saw a copy of the deed you signed on September 10, 1986. In spite of that, I believe there is still hope that matters have not been finalized."
Georgia wrote back on March 18. "My heart goes out to you and the kids in the neighborhood. My dream would be for you to have the property on Warner. . . . I'm not writing you this letter because I want anything from you. I'm writing it because it done me so much good to hear from you."
After receiving Georgia's reply, Buenger acted quickly. She had a new deed drawn up, conveying the 1440 Warner property to the GWCA, and she brought it to Robert Retamal on April 8. Robert could only communicate by nodding his head yes or no, but Buenger recalls that he insisted he had never signed over any other deed to the property. She gave him a check for $1,000, and he signed his name, "R. Retamal." It is a shaky and scrawled signature, and it is written one line above where it belongs--but it is a signature, not an X.
Then Buenger located a notary in Kentucky who went to the federal prison and brought the new deed to Georgia for her signature on April 18. The document was returned to Chicago and filed with the Cook County recorder of deeds on April 21, 1987. It soon came to the attention of Leitson and Winick, who couldn't quite believe that the complex and profitable real estate deal they had put together might fall apart because of some faulty paperwork. "It was hard to think," Winick recalls, "that right-thinking people were doing this to us." In May they attended a meeting of the GWCA and tried to dissuade the group from pursuing its claim. When that failed, they decided to take the matter to court.
Three years later, when the case finally reached trial, it was apparent that the key question was whether the second deed secured by Winick and Leitson--the one with an X--was any good. Everyone knew the first deed was no good, since Georgia had no right to sign on Robert's behalf.
Judge Scotillo listened to five days of testimony. He heard Joseph DeMaria, who had known the Retamals for years, testify about Robert Retamal's diminished capacities following his stroke. "All I could ever get from him was 'La, la, la, la, la.' That's all he could say: 'La, la, la, la, la.'"
Scotillo also listened to Katz describe his visit to Robert on January 8, 1987. On the witness stand Katz admitted that he had accepted an X as a signature from a man who could not speak and with no witnesses other than himself. He asked the nurse who was attending Robert at the time to serve as a witness, Katz recalled. "She said, 'I ain't witnessing nothin'.'"
To rebut Katz, McGonegle called Sandra Garrett, the nurse who managed Robert's care while Georgia was in prison. Garrett testified that a number of nurses took shifts caring for Robert, and that a log was kept that included the names of all visitors. Katz's name never appeared on that log, she said. In addition, she said, Robert never signed his name with an X. "I taught him how to write his name."
McGonegle tried to introduce into evidence an affidavit taken from Robert Retamal in January of 1990. (McGonegle prepared the affidavit, he later said, by interviewing Robert and transforming his yes and no answers into a narrative, which Robert then read and corrected, word by word.) "I have reviewed a deed dated January 26, 1987," states the affidavit, which bears Robert's shaky signature. "I did not place the mark near my name on that deed. To the best of my recollection, Craig Katz, who is identified as having witnessed my signature, never visited me on or about January 26, 1987, or secured my mark or signature on the deed."
Robert's affidavit would have been a powerful piece of evidence--and Davis quickly objected to it. The rules of evidence provide that oral or written testimony can be accepted only from witnesses who are available for cross- examination. Robert Retamal was not available; he had died in July, nearly a month before the trial began.
McGonegle tried to get the affidavit into evidence using an exception to the normal rules, which allows testimony from unavailable witnesses if it speaks to their "state of mind." Judge Scotillo was skeptical. McGonegle was claiming, he noted, that Katz never visited Robert in January of 1987. "How can we have testimony regarding his state of mind about an act which did not occur?"
Davis maintained that Robert had made an X on the second deed, just as Katz had testified. The fact that Robert had later signed contradictory documents--including a sworn affidavit and another deed--was not hard to explain, Davis said. Robert was a lonely, infirm man. His wife was in prison, and very few people ever came to see him. "I think that Mr. Retamal would have signed anything that the only visitors he ever got would have given to him."
Scotillo issued his ruling just a few minutes after the lawyers finished their closing arguments on Friday, August 3, the last day of the trial. He stuck to the facts, but his ruling rested on an elegant moral symmetry. It was a Solomon-like decision: He took the disputed land and cut it in two.
Scotillo ruled that the second deed--the one bearing an X--was "a worthless piece of paper." After reviewing the evidence, he said, "the totality of the circumstances surrounding that document render it a nullity." He then ruled that the first deed--which Georgia signed for herself and her husband--was half good: Georgia's signature was valid, and she signed over her interest in the land to Winick and Leitson in September of 1986. But Robert never signed that first deed, so he retained his share of the property--until he transferred it to the GWCA by signing the third and final deed in April 1987. In order to claim their half interest, however, Scotillo ordered the neighborhood association to pay Winick and Leitson half of the $12,500 they had spent to acquire the lot.
As soon as the judge finished talking, Buenger heaved a huge sigh of relief and raced out of the courtroom. "Don't gloat," she whispered to a friend who had joined her to watch the trial. "Tim said not to gloat." For Buenger, a split decision was a pretty solid victory: there were no damages to be paid, and Warner Park could be expanded by 25 feet. The verdict was not nearly as good for Winick and Leitson. On a 50-foot lot they could have comfortably fit two nice-size houses, but setback restrictions will make it difficult for them to build much of anything on a 25-foot lot. In fact, says Winick, "the way that property is zoned right now, you can't cut it in half."
Winick and Leitson don't want half a lot. "Our feeling," Winick says, "is that this whole thing has not worked out, and we just want to move on."
Winick and Leitson would like Scotillo to order a sale of the entire lot. If the land were to sell for a price similar to the $82,000 that Buenger paid for 1446 W. Warner, Winick and Leitson would walk away with about $40,000--close to the amount they've invested in the property. If Scotillo does order a sale, the GWCA could also wind up with $40,000 or so, which would probably make it one of the best-endowed neighborhood associations in Chicago.
But the group isn't interested in the money if it means the precious Warner Avenue lot would fall into the hands of yet another developer who values town houses more than trees. "The whole interest," says McGonegle, "was to preserve the land for open space, not for development." The GWCA wants Scotillo to simply cut the lot in two and give them the half that is adjacent to Warner Park.
Both sides will file papers supporting their positions in the next few weeks. Once Scotillo rules on their motions, the four-year-old legal battle will finally be over--unless one side decides to appeal.
No matter how the courts finally rule, there are some questions about what really happened on Warner Avenue during the past few years that may never be settled. "I think my motives have been misunderstood," says Buenger. She's afraid that some people in the neighborhood suspect that her interest in gardening is just a front for real estate speculation, and that she'll plow up Warner Park as soon as she receives the right price. "Someone told me I could get $120,000 for it today," she says. "That's $40,000 I could make." But she insists she isn't interested in selling the lot at 1446 Warner to anyone except a public or nonprofit organization that will promise to maintain the land as a park.
Winick also feels misunderstood. He and his partner were not greedy developers, he says, but simply a pair of young architects trying to put together an attractive first project. The houses they intended to build, he explains, would have been a pleasant addition to the neighborhood. "All we were doing was putting something back on the property that had been there before. It's a shame you didn't see the plans we drew up. It was something everybody would be pleased with and proud of.
"One of the reasons I'm so upset about the way this has been portrayed is that I plan to live the rest of my life in the Chicago area, and I plan to be involved in things. And the one thing you have which is truly yours is your reputation."
Art accompanying story in printed newspaper (not available in this archive): photo/s/Mike Tappin.