The Assault on Democracy in the Stadium Project Process

“You may ask yourself, ‘well, how did I get here?’ ”
     — Talking Heads, Once in a Lifetime

Evanston Roundtable reporter Duncan Agnew recently took a good shot at recapping how the proposal for rezoning the athletic “U2” district encompassing Northwestern University’s football stadium, basketball arena, and baseball field advanced to a potential vote at Evanston City Council. As good as Mr. Agnew’s history is, there is more to the story. We got "here" via an ongoing antidemocratic trend in Evanston that has picked up steam and become more obvious and alarming over time.

Gerrymandering and Aldermanic Musical Chairs

Start with the fact that the City Council of 2023 was elected under an unconstitutional ward map, in place for over 20 years, under which the 7th Ward, the 6th Ward, and the 3rd Ward have all been under-represented for more than a decade, flouting the constitutional mandate of one person, one vote. Not coincidentally, in the current rezoning battle, the aldermen of these three wards were on the defensive.

The census was in 2020. A new, fair map could have and should have been drawn in time for special elections in the 2023 municipal cycle. You’d think that the right to vote is so important, especially to self-styled progressives, that a place like Evanston would remedy constitutional wrongs immediately. Instead, a committee dragged out the process, overtly stating its intent to preserve incumbencies and racially-based wards. Barring legal intervention, another half-decade will have passed with nearly half of Evanstonians under-represented in their municipal legislative body, including the stadium neighbors now under pressure.

Also, if the upcoming vote were up to the Council last elected, the zoning might well be going nowhere. Cicely Fleming, the former popular alderman of the 9th Ward, was no pushover, and might well have supplied a deciding vote against the stadium project. But Ms. Fleming abruptly left office within a year after her 2021 re-election, mainly for family reasons, but also citing the “unhealthy work culture” at the Civic Center. Mayor Daniel Biss then appointed a Northwestern employee to the vacant post, creating the expected tie that would  give him a vote on Nov. 20.

Meanwhile, a second vacancy that Biss filled, in the 2nd Ward, might not have altered the upcoming vote, since Councilmember Krissie Harris, considered a Yes vote, only replaced Peter Braithwaite, a visible booster of the project. But Braithwaite, while on the Council that frequently voted on matters impacting NU, first took a job with NU, then left the City to work exclusively for NU, and has been able since to lobby Council members as an insider on behalf of NU.

Marginalization of the City-NU Standing Committee and Its Chair

Meanwhile, Councilmember Clare Kelly, who survived a nasty smear effort in her election, a deplorable tactic led by some of the same folks boosting the stadium rezoning, has found herself repeatedly the subject of complaints and conflicts with staff, some since departed, primarily stemming from her frustrated efforts to obtain City information.

Kelly, as chair of the NU-City standing committee, should have been engaged from the get-go as key to a public process for engagement between Northwestern and the community. Instead, both NU and some staff sought to limit the committee’s scope, eliminate it as a channel for public input, and neutralize Kelly, including through an underhanded attempt to go into federal court and gut, without informing most of Council, the consent decree that created the standing committee.

But it doesn’t stop with a gerrymandered and skewed Council, a revolving door, and marginalization of a serving councilmember and a City committee designed to serve the public. It gets worse.

Elimination of Resident Procedural Protections

Until recently, any proposals such as NU’s would have gone through four or five separate steps. First, a preliminary concept plan would have gone before the Design and Project Review standing committee (“DAPR”), at which not only City architects and engineers but citizens could review and comment on the proposal early. Then it would have had to pass before the Plan Commission, a body that over decades developed significant expertise at testing applications for planned development and zoning amendment against the Comprehensive Plan. Special uses and variations, meanwhile, were typically scrutinized by the Zoning Board of Appeals, which not only had a comparable expertise in the more granular field of how a lot use does or does not play out, but which had actual final say-so in some matters (although planned developments ("PDs") with such deviations could track a zoning amendment through the Plan Commission). Following those steps, major projects typically went through the Planning & Development Committee. Only then would full Council consider the PD application and rezoning petition. However, several of those safeguards designed to protect residents from arbitrary government action were undermined here.

The Disappearance of DAPR

All projects of the stadium’s magnitude were supposed to go publicly through DAPR, Evanston’s version of a preliminary step commonplace in cities from Chicago to Urbana to make sure impactful projects fit in with surrounding aesthetics and logistics. DAPR as of 11/20/23 still showed as a standing committee on the City website, in numerous locations in City online Code, and on not one but two separate City charts for the development approval process — but with no agenda or minutes since summer 2022, as NU prepared to roll out the stadium proposal it had first signaled in fall 2021. A move to abolish DAPR was twice tabled, then fell off the agenda on Sept. 12, 2022. An ordinance abolishing DAPR was finally signed in May 2023, and the City Clerk directed to place notice of that on the relevant City code pages. That was not done, and any resident trying to determine Evanston’s process is misled to believe that DAPR still exists.

However, DAPR did still exist and had legal duties under City law in January 2023 when NU first submitted its application for a PD. That public safeguard was apparently just skipped. We can’t be sure because DAPR’s work also went dark, conveniently, just as the stadium proposal was gestating.

A committee of architects and designers had worked hard through early 2023 with Councilmember Kelly, among others, to enact a new substitute design committee to take DAPR's place upon its end, since such review serves a valuable role. However, that proposal, despite being seen as having majority Council support, was derailed in committee in summer 2023 — with opposition from Councilmembers now spearheading the stadium rezoning. So the stadium proposal proceeded without this historically first, professional, and public City review.

The Merger of the Plan Commission and the Zoning Board of Appeals

Now look at the former ZBA and Plan Commission before which NU’s stadium proposal might normally have been vetted following initial DAPR vetting. Before each body, in addition to citizen comment, affected residents would have had rights to due process, especially at the ZBA, where proceedings were conducted administratively, with witnesses sworn, rules for introduction of evidence, and clear rights of examination and cross-examination.

During the pandemic, however, in a little-noticed-maneuver, the City of Evanston collapsed the ZBA and the Plan Commission into one new “Land Use Commission,” at the same time setting its size to shrink. Whether this was even legal is open to question, since an Illinois city cannot change its form of government without a referendum, which did not occur here.

The merger of the two boards had several effects. First, citizens have less opportunity for input. Formerly, if you had one issue with a major variation, and another separate issue with whether the concept of a project met legal or rational muster, in the past you might attend two separate meetings and address those issues in the forum where they belonged. Now, a resident has to choose which point to address, and all the comments on planning get muddled up with those about zoning exceptions. Whether a specially impacted person living close to the project or just a concerned citizen, you might only have a couple minutes to state your case. Also, a unique, unusual ordinance set up the new LUC to start with all former ZBA and Commission members but shrink by attrition to a smaller size, which prevented new members from coming on board during the past year, especially since regular rotation off after two terms of service has ceased.

Still, the LUC as presently constituted deserves praise for patiently and attentively listening to the case of NU, the case of opponents, some of whom were given up to 10 minutes to state their case — far short of what seems reasonable for what is billed as the most important, transformational project in Evanston history, but better than a minute — and scores of citizen comments, as well as reviewing over a thousand pages of reports, analyses, counter-arguments to reports and analyses, citizen comments, and e-mails. In a display of expertise and integrity, the LUC voted 7-2 to recommend that the Council deny the rezoning. The administrative record of that decision, however, was not included in the packets provided to the Council and available to the public; the careful reader has to see a hyperlink in the packet PDF and then click to follow and download that massive document separately.

It is important to note that at no time was a public benefits agreement presented to the LUC, let alone made the subject of notice and made available for public scrutiny, or ever subject to hearing before that body which serves as the principal hearing opportunity for the public.

Planning and Development — Not!

Historically, significant projects spend considerable time in review by the Council’s committee on Planning & Development, or “P&D.” Committee work, as in Congress or state legislatures, is an important part of municipal self-governance because it can be less formal and more conversational than the official session of a legislative body. Historically more lightly attended by both aldermen and the public, P&D, like other committees, was a place where aldermen could ask for more information from witnesses and residents, gaining deeper understanding of an issue. The P&D recommendation had weight, since some committee members theoretically developed expertise after seeing many projects presented and debated.

Often, the work of P&D resulted in a better project. Veteran Council members could indicate at P&D to an applicant why their project might not fly, allowing the applicant an early opportunity to withdraw or amend their proposal without the delay and embarrassment of a vote-down at full Council.

Over time, this has become less so. First, the membership on the committee became inflated due to some aldermen fearing being excluded, so it ended up constituting most of the Council. Then, with too many Council members on too many committees, and P&D work sometimes being intensive, it began looking for ways to lighten its load. What got sacrificed was citizen comment and some of the give-and-take where important work could get done.

You’d think that the massive stadium project would be a prime candidate for exploration and massaging by P&D. Think again. Instead, that committee was skipped altogether, depriving residents of yet another important and expected step of usual process. The stadium project got special treatment and came roaring like a freight train out of the LUC straight to City Council.

The MoU and the Monetization of Process

A PD and a rezoning amendment come before Council as, respectively, a legal application for variant or special use of a property, and an amendment to change City zoning law. Both of these are non-routine matters for a local body and implicate the property rights of both the applicant and neighbors, which requires, under the Constitution and state law, both procedural and substantive due process being respected. In other words, it is not just a simple matter of whatever the Council thinks is a good idea. The courts recognize that local legislators can make decisions so unwise or unfair that they offend the Constitution. Illinois has well-developed legal standards for objectively reviewng whether people’s rights have been respected and given proper weight, looking at such factors as the zoning of adjacent properties, and impacts on property values.

In the stadium situation, fair play went out the window when one party, Northwestern, secretly bargained behind closed doors with some (but only some) of the decision-makers who were supposed to honor and provide citizens objecting with substantive due process. Instead of waiting to fairly review the findings of the LUC and consider the input of residents at a meaningful final step, several Council members took it upon themselves — starting when, nobody yet knows — to cut a backroom “deal” with Northwestern, whereby NU would commit to a number of years of a combination of old and new funding of various programs, amounting to, to be fair, millions of dollars annually. To ensure that there was no doubt of its purpose to influence the Council, this multimillion-dollar bargain was rolled out on the afternoon of Oct. 30, just hours before the Council was to begin debating the stadium ordinances.

The actual value of what Northwestern has offered or committed to has been subject to debate and to skepticism that it includes money already being spent by NU or to which NU already committed, commitments that terminate too soon (15 years for a stadium that may impact the neighborhood for a century), and benefits that may be yanked by NU if it deems regulation too confining. Another issue is whether any of the monies will actually offset any existing City spending, to lower taxes that many residents believe are high because NU pays no property taxes, or whether these new MoU funds will simply pile on new programmatic spending — that the City will have to pick up itself when NU’s payments end. Those details are beyond this review. My point is that whether it is a huge, unprecedented amount of money or a smaller contribution, the monetary offer, and its consideration, should not have been linked to the rezoning and the PD application, and fatally tainted the process.

It is hard to overstate how subversive of fairness it was, to residents opposing the PD application and rezoning petition, to reduce the proposal to a cash proposition. Imagine that you were in a lawsuit and found out that the judge had been cutting a financial deal with the other side; could any subsequent trial possibly be characterized as fair in substance, even if went through all the procedural steps of opening statements, direct testimony, cross-examination, introduction of evidence, and closing statements? What if the deal had not been formally consummated but an entire trial took place with someone standing in the back of the courtroom holding up and directing the judge’s attention to a giant moneybag the entire time? You would rightly think that the fix was in and that the trial was just show.

But that in essence is what happened here. Moreover, the “deal” was cut without the Council having authorized any negotiations by the City, or appointing a negotiating team, and without the City’s legal counsel, who have a fiduciary duty to the public, taking the lead. Instead, non-lawyers, without public transparency, charged in like children scrambling for the contents of a piñata, and in essence bargained away existing zoning, using the pain and protest of stadium neighbors as leverage, but bargaining primarily for their own constituents who live far from the noise, traffic, parking, and property value impacts that transformation of the stadium district will trigger.

How Many Votes?

As I write this, three separate moves have been made to require more than a simple quorum majority at one or more votes. Two invoke §6-3-4-7 of the Evanston zoning code and §11-13-14 of the Illinois municipal code, respectively, to require a 2/3 “supermajority” as a result of petitions from nearby neighbors of the stadium. Additionally, I and numerous other lawyers also feel that the Evanston zoning code requires a majority of the Council, which the Code defines as a 10-person body (9 aldermen plus the mayor), and thus six votes, to amend. Councilmember Geracaris (9th) plans to recuse himself for reason of working for Northwestern.

There is the question of what the law requires as a bare minimum, and then there is the separate question of what is good policy for a city. In 1925, when Evanston gave approval to NU to build Dyche Stadium, the vote was unanimous. For something billed as equally transformational, best practice would be to build similar consensus and forge unity rather than attempt to ram through with the support of only four aldermen, based on technical and debatable interpretations of law. For four aldermen, none of whom live near the neighborhood where negative impacts will primarily be felt, to bulldoze over the objection of residents who do, disregarding both far north-side aldermen, including the neighbors’ elected representative, as well as the LUC, is not a good look. Nor is it a good idea to effect such large change in a small community with so narrow a margin.

Reality Check

Politics has been called “blood sport” in Evanston, but it is not supposed to be so. Candidates routinely run on promises of unity and collaboration. Our adopted Comprehensive Plan directs that. That hasn’t happened here. Instead we’ve seen a process more akin to bullying. A minority of aldermen elected via an unconstitutional gerrymandered ward map are pushing a process that has marginalized north side stakeholders, at least one alderman, a formal City standing committee, and the only body to conduct a hearing with administrative type fairness. The historical steps of input and procedural protection long established for wiser decision-making in Evanston were slashed to just two: DAPR was either ignored or went behind closed doors, and the ZBA and Plan Commission became just the LUC, just in time for the stadium project. Then P&D was skipped entirely. I can’t recall a similar process in decades of large project consideration in Evanston.

Of the two surviving steps, the LUC and full Council consideration, the last was completely stripped of objectivity by a multimillion contract zoning play. So residents had only one fair channel, the LUC. The LUC voted 7-2 to recommend denying rezoning, even without making required findings on noise, but that decision is in peril of being disregarded, over the objections of neighbors and their elected representative, due to the overwhelming power of money to influence.

All of this has occurred in a context where public comment has been reduced to a shadow of what it was when I moved to Evanston, letting Council more easily dismiss residents, no matter how numerous. In fact, under the arbitrary time limit rules, the more people who object, the more each is silenced. Valuable information from the people who might know best how a neighborhood works is essentially censored.

That, friends and neighbors, is how we got here. On the most obvious level, it is just a slap at a neighborhood. On a deeper level, it is an assault on democratic and constitutional principles of fair play and good government.

“You may say to yourself, ‘My God! What have I done?’ ”
     — Talking Heads, Once in a Lifetime

-- Jeff Smith

Originally posted on 11/20/23; edited through 11/25/23 for brevity, accuracy, and style. Correction made on 12/7/23 to reflect that rotation off the Plan Commission and ZBA was formerly after two terms, not two years.