Developer hints it may sue elmhurst if denied

A slightly smaller condo project would require a "modest" tax subsidy, the developer indicates.

Scott Day, attorney for developer RSCK Holdings, hinted last week that his client may sue Elmhurst if the city denies its proposal for a nine-story condo complex.

ELMHURST, IL – A developer's lawyer is suggesting the company may go to court if Elmhurst denies its request for a nine-story condo building downtown.

Naperville attorney Scott Day wrote a 33-page letter to the city's lawyers. In it, he argued that case law shows that the city is legally required to approve the developer's request.

In a split vote last month, the Zoning and Planning Commission recommended rejecting the proposal, which is for 196 to 202 N. York St. The developer is Oak Brook-based RSCK Holdings.

The developer's proposal is for a 109-foot building with 28 condos. That could be profitably developed without any subsidy through the downtown tax increment financing district, Day said.

He said a 98-foot building could also be profitable with "only modest" financial assistance through the TIF.

Under a TIF, the hope is that new development increases tax income, providing more money to local public bodies.

In his letter, Day cited court decisions, local zoning regulations and the city's long-term plan for development in making his case that the city is required under law to approve the proposal.

He warned a denial would be "unfavorably" viewed by a state court.

"(We) believe a trial court would conclude that the project RSCK proposes is desirable and beneficial to serve and advance the public welfare as legislated by the City," wrote Day, who has been involved in many of Elmhurst's zoning battles.

A trial court, he said, would determine the project has nothing "uniquely detrimental" at the site in question that is not inherent anywhere else downtown.

Day did not directly say the developer would file a lawsuit if the City Council rejected the project. He said he wanted the city to know about the court decisions that would guide any trial court "that might be called upon" in case of a denial of RSCK's request.

During zoning meetings, residents at the six-story condo complex One95, which is to the west of the site in question, objected to the height of the proposed building, among other things. The condo complex would require the demolition of existing buildings.

The members of the Zoning and Planning Commission's majority said they took those concerns into account in their decision.

Asked whether his client would go to court if the project his denied, Day issued a statement to Patch.

"The letter submitted on behalf of RSCK is an assertion of legally protected property rights held by every single property owner in the City of Elmhurst," Day wrote. "This area of law restricting the scope of legislative discretion when the City of Elmhurst passes judgment on an application for a land use that the City has elected to permit as a conditional use is unusually clear. In my experience and research, the conditional use permit is the only legislative land use regulation on which the Illinois Supreme Court has issued a categorical judgment defining certain findings that the City may not make without violating the constitutional prohibition against irrational land use regulation. The letter is submitted to assure that the City attorney is alerted to, and fully understands the nature of this Supreme Court decision, and its application to the RSCK conditional use for height."

The condo proposal was on the agenda for Monday's meeting of the council's Development, Planning and Zoning Committee. But members held off on any decisions in light of Day's letter.

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