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ILLINOIS ZONING FOR REAL ESTATE ATTORNEYS

Zoning in Illinois Generally


Simply put, zoning is the most powerful and pervasive means by which local governments regulate land use. It is typically accomplished by means of zoning ordinances and maps, which are issued at the municipality, county, or township level. At the heart of Illinois zoning ordinances are guidelines regulating matters such as permitted activities, parking, building bulk, building density, floor area, setbacks, height, storage, unit size, lot size, open space requirements, building facades, landscaping, and signage.


For example, on May 26, 2004, the Chicago City Council passed a zoning ordinance, effective November 1, 2004. The zoning ordinance divides the city into Residential, Business/Commercial, Downtown, Manufacturing, Special Purpose, and Overlay districts. These districts are further subdivided into smaller districts, e.g., the Downtown district is divided into the Downtown Core, Downtown Mixed-Use, Downtown Residential, and Downtown Service districts. The differences between these districts correspond fairly well to what common sense would suggest: offices are expressly permitted in the Downtown Core district, but they are expressly prohibited in the Downtown Residential district.


Sections 17-1-0501 through 17-1-0514 of the Chicago Zoning Ordinance list the purposes for which the ordinance was adopted, and these purposes serve as excellent examples of the primary purposes for which any unit of local government might choose to zone. The purposes behind the adoption of the Chicago Zoning Ordinance include the following, inter alia: (1) promoting the public health, safety, and general welfare; (2) preserving the overall quality of life for residents and visitors; (3) maintaining economically vibrant as well as attractive business and commercial areas; (4) protecting the character of established residential neighborhoods; and (5) maintaining orderly and compatible land use and development patterns. Chicago Mun. Code §§ 17-1-0501 - 0502 (2004).

Authority to Zone

Home Rule Unit Authority

Article VII, Section 6(a), of the Illinois Constitution provides that "a home rule unit may exercise any power and perform any function pertaining to its government and affairs." This provision has been interpreted to give home rule units the authority to zone. See, e.g., Cain v American National Bank & Trust Company of Chicago, 26 Ill App 3d 574, 325 NE2d 799 (1st D 1975) ("Since Chicago is a home rule unit (IL Const, Art VII, § 6(a)), its power to zone for the public health, safety, morals, and welfare . . . properly derives from the Illinois Constitution and its grant of power to home rule units."). Of course, a home rule unit is any county that has an elected chief executive officer (currently only Cook County fits this description) or any municipality that has a population of more than 25,000. Id.

Non-Home Rule Authority and Townships

Municipalities Section 11-13-1 of the Illinois Municipal Code, codified at 654 ILCS 5/11-13-1, et seq, provides that the corporate authorities of non-home rule municipalities have the following powers:

 

(1) To regulate and limit the height and bulk of buildings hereafter to be erected; (2) to establish, regulate and limit, subject to the provisions of Division 14 of this Article 11, the building or set-back lines on or along any street, traffic-way, drive, parkway or storm or floodwater runoff channel or basin; (3) to regulate and limit the intensity of the use of lot areas, and to regulate and determine the area of open spaces, within and surrounding such buildings; (4) to classify, regulate and restrict the location of trades and industries and the location of buildings designed for specified industrial, business, residential, and other uses; (5) to divide the entire municipality into districts of such number, shape, area, and of such different classes (according to use of land and buildings, height and bulk of buildings, intensity of the use of lot area, area of open spaces, or other classification) as may be deemed best suited to carry out the purposes of this Division 13; (6) to fix standards to which buildings or structures therein shall conform; (7) to prohibit uses, buildings, or structures incompatible with the character of such districts; (8) to prevent additions to and alteration or remodeling of existing buildings or structures in such a way as to avoid the restrictions and limitations lawfully imposed under this Division 13; (9) to classify, to regulate and restrict the use of property on the basis of family relationship, which family relationship may be defined as one or more persons each related to the other by blood, marriage or adoption and maintaining a common household; and (10) to regulate or forbid any structure or activity which may hinder access to solar energy necessary for the proper functioning of a solar energy system, as defined in Section 1.2 of The Comprehensive Solar Energy Act of 1977. 654 ILCS 5/11-13-1.

Non-Home Rule Counties (i.e., all but Cook)Non-home rule counties are granted the power to zone pursuant to the Counties Code, codified at 55 ILCS 5/5-12001,et seq.Specifically, Section 5-12001 of the code provides for a list of zoning powers that non-home rule counties have; in substance, these are very similar to the powers that a non-home rule municipality has to zone (see above). Importantly, the code also provides that "any zoning ordinance enacted by a city, village, or incorporated town shall supersede, with respect to territory within the corporate limits of the municipality, any county zoning plan otherwise applicable."Id.

TownshipsSection 110-10 of the Township Code, codified at 60 ILCS 1/1-1,et seq., provides for a fairly standard list of zoning powers for townships. However, Section 110-5 importantly provides that,inter alia:

(b) This Article does not apply in any county in which a county zoning ordinance or resolution is in effect. A county zoning ordinance or resolution adopted after the adoption of a township zoning ordinance or resolution under this Article supersedes the township zoning ordinance or resolution.


(c) Regulations adopted under this Article do not apply to any area that is governed by a municipal zoning ordinance. 60 ILCS 1/110-5.

Extraterritorial Powers of Municipalities

Both non-home rule and home rule municipalities have the power to exercise their zoning powers to affect territory up to one and a half miles beyond their corporate boundaries.

Non-Home RuleNon-home rule municipalities may exercise this extraterritorial power only under the following conditions: (1) the territory to be regulated is not within the corporate limits of any other municipality; (2) this extraterritorial area has not already been regulated by the local county (see, e.g.,County of Will v City of Naperville, 226 Ill App 3d 662, 589 NE2d 1090, 168 Ill Dec 690, 3rd D 1992); and (3) the zoning power is not exercised with respect to any facility of a telecommunications carrier as defined in Section 5-12001.1 of the Counties Code. 65 ILCS 5/11-13-1.


Additionally, an interesting note is that this extraterritorial power granted to municipalities does not extend to building permits, but strictly to zoning ability. City of Galena v Dunn, 222 Ill App 3d 112, 583 NE2d 616, 164 Ill Dec 700 (2nd D 1991).

Home RuleThe basis for a home rule municipality's ability to put into effect zoning regulations that affect territory up to one and a half miles from its borders also stems from 65 ILCS 5/11-13-1. City of Evanston v Regional Transportation Authority, 202 Ill App 3d 265, 559 NE2d 899, 147 Ill Dec 559 (1st D 1990). In practice, the extent of a home rule municipality's authority to zone extraterritorially is similar to that of a non-home rule municipality (see above).

Creation and Implementation of a Zoning Ordinance

As a general matter, the first step in the creation of a zoning ordinance is the creation of planning commissions, which set forth advisory plans for the development of land. Alternatively, many municipalities have planning departments in place, which typically carry out the same objectives that a planning commission would. For example, the Regional Planning Enabling Act, codified at 55 ILCS 5/5-14001,et seq., provides:

Whenever in the judgment of the county board of any county, a portion or all of said county as a region, should have a plan made for the general purpose of guiding and accomplishing a coordinated, adjusted, and harmonious development of said region . . . the county board is hereby empowered by resolution of record to define the boundaries of such region and to create a regional planning commission for the making of a regional plan for such region so defined. 55 ILCS 5/5-14001.

The comprehensive plans created by these planning commissions are not binding sources of authority, as evidenced by the Illinois Supreme Court's decision inCity of Chicago Heights v Living Word Outreach Full Gospel Church and Ministries, Inc, 196 Ill 2d 1, 749 NE2d 916, 255 Ill Dec 434 (Ill 2001) (establishing that inconsistency with a planning commission's comprehensive plan was not sufficient reason for the city to deny a special use permit). In spite of a lack of enforceable authority, planning commissions are very frequently created for the following reasons: (1) the plan serves as a foundation for zoning ordinances; (2) developing a plan makes a local government unit eligible for grants that it would not otherwise be eligible for (see, e.g., Section 805/8 of Local Land Resource Management Planning Act, codified at 50 ILCS 805/1et seq.); and (3) a plan may help to prevent erosion (see 65 ILCS 5/7-3-6(4), providing that a municipality's plan is a factor in determining whether a property owner can properly disconnect her land from a municipality).


To pass zoning ordinances, a municipality must create a zoning commission, which is typically composed of members of the mayor's choosing. 65 ILCS 5/11-13-2. Zoning commissions cease to exist upon passage of the zoning ordinance.Id.


Upon adoption, a local zoning administrator is responsible for enforcing the ordinance. See 65 ILCS 5/11-13-3(a) of the Municipal Code and 55 ILCS 5/5-12008 of the Counties Code for language investing enforcement powers in a local officer.


Additionally, both the Municipal Code and Counties Code require the creation of boards of appeals. 65 ILCS 5/11-13-3; 55 ILCS 5/5-12010. Zoning boards of appeal have the power not only to hear appeals from decisions made by the zoning administrator, but also to grant variations and special use permits. Zoning boards of appeal also have the power to hold hearings regarding possible amendments to the zoning ordinance.


Finally, the local corporate authorities and the executive have considerable sway over the zoning process throughout all of its stages. Such corporate authorities, when acting in a legislative capacity, have the power to alter land use regulations so long as the ordinance passed does not violate any state or federal constitutional provisions. This is true even when the corporate authorities amend a general zoning ordinance by way of procedures that are inconsistent with the procedures used during the creation of previous ordinances.Landmarks Preservation Council of Illinois v City of Chicago, 125 Ill 2d 164, 531 NE2d 9, 125 Ill Dec 830 (Ill 1988).

Constitutionality

The classic United States Supreme Court case setting forth the constitutionality of zoning isVillage of Euclid v Ambler Realty Co, 272 US 365, 71 L Ed 303, 47 S Ct 114 (1926). Specifically, the court held that division of land into use districts was within the police power of the state and that a zoning ordinance is generally valid so long as the ordinance is not "clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare."Id.at 395. This principle relating to non-arbitrariness and relation to the public welfare has become well established at the Illinois state level. See, e.g.,DuPage County v Halkier, 115 NE2d 635 (Ill 1953), ("[zoning restrictions] must bear a real and substantial relation to the public health, safety, morals, or welfare"). See generally,LaSalle Nat Bank of Chicago v Cook County, 12 Ill 2d 40, 145 NE2d 65 (Ill 1957);Atkins v Cook County, 18 Ill 2d 287, 163 NE2d 826 (Ill 1960);Grobman v City of Des Plaines, 59 Ill 2d 588, 322 NE2d 443 (Ill 1975).


The constitutionality of zoning statutes is further authorized, as noted above, by Illinois statutes that specifically grant municipalities, townships, and counties the power to zone. See, generally, 65 ILCS 5/11-13-1; 60 ILCS 1/110-10; 55 ILCS 5/5-12001.

How to Identify Zoning

The most traditional means of obtaining zoning information for a given property is to ask in-person for a copy of the relevant zoning ordinance from a local zoning office or local planning board. Additionally, as zoning is a matter of public record, local libraries often have relevant local zoning ordinances and maps available: e.g., Naperville's Public Library has DuPage County's zoning ordinance on reserve.


Numerous local governments have made zoning information available online. For example, Naperville's official website allows a user to obtain detailed zoning information about any property in Naperville simply by typing a valid Naperville street address into Naperville's "Your Place" feature, available athttp://maps.naperville.il.us/YourPlace/. Oak Park's zoning map is available athttp://vil.oak-park.il.us/public/pdfs/11.14.02%20OP_zoning_map.pdf, and Oak Park's zoning ordinance is available athttp://vil.oak-park.il.us/public/pdfs/zoning/01.23.03_Revised%20Zoning%20Ordinance.pdf. Similar information can be found for many other Illinois locales by executing a websearch that includes the locale's name and the word "zoning." If in doubt, a telephone call to city hall or a local zoning/planning board should aid in discovering how a local parcel of property has been zoned.

Challenging a Zoning Classification


Challengers of zoning have used numerous legal avenues and causes of action to attack the validity of particular zoning classifications. However, as a practical matter, anyone considering challenging a zoning classification should consider a few fairly simple alternatives to litigation before entering into litigation.

Alternatives to Litigation

First, and most obviously, anyone on the brink of clashing with a particular zoning classification could change the land use proposal at issue to meet the standards set out by the classification.


Second, one could avoid a clash with the zoning classification altogether by seeking other land upon which the proposed use is allowed.


Third, anyone challenging a zoning classification may petition the local zoning board of appeals for a rezoning. The rezoning process usually requires an application and a fee, and a typical example of a rezoning application is Kankakee County's rezoning application, which includes an outline of the process as well as the application. The Kankakee County rezoning application can be found athttp://www.co.kankakee.il.us/pdf/Rezoning_Application.pdf. Lake County's rezoning application materials contain an excellent explication of the rezoning process, and can be found athttp://www.co.lake.il.us/elibrary/publications/planning/udo/pdf%20forms/rezoning%20original.pdf. Most importantly, the materials set out the following wise course for anyone considering a rezoning application: (1) meet with the local department of planning; (2) meet with adjacent landowners; (3) meet with elected officials of the nearest municipality; (4) complete the application; and (5) pay the fee. Indeed, the approval of adjacent landowners and local officials is often critical to rezoning success.


Fourth, a landowner concerned about violating a zoning ordinance may apply for a variance. These differ from rezoning applications because the grant of a variance does not touch or affect the zoning classifications in any way; rather, a variance is essentially the permission of the local zoning board of appeals to violate a provision of the zoning ordinance. Obtaining a variance is procedurally similar to obtaining a rezoning: in each case, an application, a fee, notice to adjoining landowners, and a public hearing are necessary steps. With respect to both rezoning and variances, decisions of the local board can be appealed to court.

Litigation

If a party disagrees with a decision of a zoning board, that party can appeal the decision to the local zoning board of appeals. Further, a decision of a zoning board of appeals is itself reviewable by a court of law. Pursuant to the Administrative Review Law, codified at 65 ILCS 5/11-13-13, an administrative decision of a zoning board of appeals is subject to a limited type of judicial review. The following sections outline some of the general aspects of the litigation of a zoning case.

RemediesA property owner may request various remedies for an allegedly unlawful zoning scheme, including, but not limited to, filing a complaint seeking an injunction, mandamus, specific performance, and/or declaratory judgment. While a description of all remedies is beyond the scope of this article, the most common remedy sought is a declaratory judgment deeming a zoning ordinance unconstitutional, along with an injunction, preventing the government from restricting the client's proposed use.

Causes of ActionThe following subsections focus on causes of action that property owners have utilized in past suits to attack zoning, including descriptions of the cases.


Unconstitutionality of Zoning Scheme. Contesting the validity of a zoning regulation by challenging whether the government exceeded its constitutional or statutory authority in passing the regulation remains the quintessential method of attacking zoning. In Illinois, the following significant factors must be examined in determining the validity of an ordinance applied to a particular parcel of land:

(1) the existing uses and zoning of the nearby property; (2) the extent to which property values are diminished by the particular zoning restrictions; (3) the extent to which the destruction of property values of plaintiff promotes the health, safety, morals, or general welfare of the public; (4) the relative gain to the public as compared to the hardship imposed upon the individual property owner; (5) the suitability of the subject property for the zoned purposes . . . and (6) the length of time the property has been vacant as zoned considered in the context of land development in the area in the vicinity of the subject property. LaSalle Nat Bank of Chicago v Cook County, 145 NE2d 65, 69 (1957) (citations omitted).

Additionally, in light ofSinclair Pipe Line Co v Village of Richton Park, 19 Ill 2d 370, 167 NE2d 406 (Ill 1960), courts also examine the community need for the proposed use and the care with which the community has undertaken to plan its land use development.Id.at 378. If a court finds that, in light of these factors, a particular zoning scheme is unreasonable, arbitrary, or insufficiently related to the public welfare, a declaratory judgment and an injunction preventing enforcement of the zoning scheme are typically appropriate.

Due Process: Meijer and the Citizens of Lisle.The case ofPeople ex rel Klaeren v Village of Lisle, 316 Ill App 3d 770, 737 NE2d 1099, 250 Ill Dec 122 (2nd D 2000), illustrates not only an essential cause of action related to zoning, but the often-contentious nature of zoning disputes. The case was brought to court as an administrative review action.


Meijer, the discount superstore, purchased a 60-acre tract from St. Procopius Abbey in Lisle, Illinois, for the purposes of constructing a new Meijer building on the property. The proposition of a new Meijer store was met with strong opposition by many Lisle residents, spawning the creation of various local anti-Meijer groups such as "No Meijer on Maple" and "Citizens for Responsible and Appropriate Development in Lisle." Among the foremost concerns of those opposed to the development of a Meijer in Lisle were increased traffic, light pollution, noise pollution, devaluation of nearby property, damaged natural drainage runoffs, and a general decrease in the quality of the neighborhood.


Because Meijer had purchased land that was zoned for residential use, they requested that the Village of Lisle rezone the parcel for commercial business use, and also requested that the Village of Lisle grant special uses for a planned unit development and a gas station. On July 9, 1998, at the public hearing in conjunction with Meijer's requests, more than 500 local citizens convened in an overcrowded auditorium to witness the proceedings. Lisle's mayor was quick to inform the crowd that the hearing was "not a debate" and proceeded to allow several witnesses to testify for both parties. This was followed by audience participation, during which two audience members spoke in favor of the Meijer, and over 40 spoke against the Meijer. The mayor closed citizen participation. At no point were the adjoining landowners allowed to cross-examine Meijer's witnesses.


On February 15, 1999, the zoning board approved the rezoning of the 60-acre tract and approved Meijer's remaining requests. The plaintiffs brought suit under a due process theory and won a preliminary injunction at trial, which was affirmed at the appellate and Illinois Supreme Court levels. The Illinois Supreme Court held that in the context of quasi-judicial, administrative proceedings concerning a special use petition, the due process rights of adjoining landowners are violated if the adjoining landowners are not given the right to cross-examine adverse witnesses.


Indeed, one of the most significant aspects ofKlaerenis that it reaffirmed the importance of due process in zoning decisions, and marked due process violations as a continually-viable way to contest the validity of an adverse zoning decision. Thus, any lawyer involved in a public hearing concerning a zoning board decision, particularly one concerning a special use, should take special care to note whether an opportunity has been given to adjoining landowners to not only testify, but cross-examine opposing witnesses. Further, although theKlaerendecision does speak in rather specific terms, it is unclear how far it will be extended and has been viewed by some as a sign of the re-emergence of the significance of due process in quasi-judicial proceedings generally. As such, all parties present should take careful note of the extent of process granted to all interested parties, as a lack thereof could provide grounds for a lawsuit, zoning issue or otherwise.

Other Causes of Action.Finally, although the vast majority of zoning cases turn upon either the constitutionality of a zoning ordinance itself or whether the procedure satisfied due process at the administrative level, plaintiffs have litigated under more exotic theories as well. For example, in the case ofVineyard Christian Fellowship of Evanston, Inc v City of Evanston, 250 F Supp 2d 961 (ND Ill 2003), the court calculated the Equal Protection Clause, free speech, and various religion-related statutes into its equation when determining the legality of a city's refusal to allow a church to be built in an office district. Such cases are, however, not common.

Conclusion


Zoning regulations remain a vital and pervasive means of governmental regulation of private land use. From the broad array of subject matter that zoning regulations may affect, to the numerous governmental authorities that may impose such standards, prospective purchasers of land must be careful to select land with a high level of suitability for the purchaser's intended uses. While litigation may be an effective way of displacing disliked zoning regulations, many alternatives exist, including requesting a zoning change for a particular area and asking for special use permits. Ultimately, the constitutionality of a zoning regulation in Illinois rests upon the factors outlined in theLaSallecase, and among the most significant of these factors is the existing uses and zoning of nearby property. In addition, litigants have pursued more exotic theories to attack zoning, including free speech.

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