The summer of 2003 saw a movement toward home-rule status for DuPage County. The DuPage County Regional Planning Commission provided a report regarding home-rule to the Development Committee, while the Committee organized two public forums to provide information and illicit opinion from citizens.1 The report from the Regional Planning Commission to the Development Committee outlined the general arguments supporting and opposing home-rule status.2 Among the common themes in the report was the relationship between home-rule counties and the municipalities within the counties. This article attempts to augment the Commission’s report by providing a general outline of the law regarding the effects of home-rule county authority on municipalities in Illinois, and how the courts have applied the law to issues where jurisdictional conflicts frequently occur.
Jurisdictional conflicts between counties and municipalities were uncommon prior to the 1970 Constitution because statutory schemes detailed the parameters of local government power.3 Such schemes frequently limited county jurisdiction to unincorporated areas of the county, leaving municipalities free from county authority.4 The police power for home-rule counties and municipalities, however, is derived directly from the Illinois Constitution.5 The "pertaining to its government and affairs" clause of Article VII, Section 6(a) implies that home-rule county authority is not limited to unincorporated areas, but extends inside the geographic boundaries of both home-rule and non-home-rule municipalities.6 Because home-rule county authority extends into the jurisdiction of municipalities, the potential for conflict between municipal and county government is amplified. Yet, this potential for legal conflict has not been realized as the courts have found a workable framework for home-rule counties and municipalities to govern effectively together; especially in areas where frequent conflicts could occur.
"Pertaining to Government and Affairs"
All home-rule ordinances, both municipal and county, must fall within the scope of the Article VII, Section 6(a) "pertaining to its government and affairs" clause in the Illinois Constitution.7 Section 6(a) dictates that "a home rule unit may exercise any power and perform any function pertaining to its government and affairs."8 Since the ratification of the 1970 Illinois Constitution, the "pertaining to its government and affairs" clause has been most frequently interpreted in the context of home-rule municipal ordinances and their relation to either state law9 or county ordinances.10 The drafters of the Illinois Constitution maintained that "pertaining to its government and affairs" means "the powers of home-rule units relate to their own problems, not those of the state or the nation."11 Illinois Appellate courts have extended this concept to protect counties from over-reaching municipal ordinances as well.12
The determination of what pertains to the government and affairs of a home-rule unit begins with the General Assembly. Although home-rule units do not derive their authority from state statutes, courts have held that certain statutory provisions give home-rule units authority in areas which the Illinois Constitution does not.13 Detailed statutory schemes have also aided courts in determining what pertains to the government and affairs of home-rule units.14
The judiciary, however, remains the primary source of authority for determining what issues pertain to the government and affairs of home-rule units. In Kalodimos v. Village of Morton Grove, the court created a three-part test to determine if a home-rule ordinance pertains to its government and affairs under Section 6(a).15 Under that test, courts must examine the nature and extent of the problem; the units of government having the most vital interest in its solution; and the role traditionally played by local and statewide authorities in dealing with that problem.16 Moreover, once a court has decided which unit of local government has jurisdiction, that unit is restricted from passing legislation that has an extra-territorial effect upon other units of local government.17 The following examples illustrate how Illinois courts have handled the Kalodimos and "extra-territorial effect" tests in interpreting local ordinances in light of Section 6(a).
To determine the nature and extent of an issue, courts will examine whether a problem is isolated or is common throughout the state.18 For example, in Village of Bolingbrook v. Citizens Utilities Co., the Illinois Supreme Court tackled the question of whether the Village of Bolingbrook could enforce its ordinances regulating the disposal of waste and sewage on any public, private or natural area within the boundaries of the Village against a public utility company statutorily charged with the authority to dispose of such waste.19 The court found that dumping within the boundaries of the Village clearly affected the Village, and was not a state-wide concern.20 Citizens Utilities did not sufficiently demonstrate that its disposal of waste in Bolingbrook was of sufficient concern to others outside of Bolingbrook, and therefore the authority of the home-rule Village of Bolingbrook was upheld under Section 6(a).
The court in Citizens Utilities also held in favor of the Village favor because it had a vital interest in regulating the dumping of waste inside its borders.21 The court balanced the interests of both the Village and the State in determining where waste would be dumped. One factor that favored the Village in this balancing analysis was the "real and immediate danger to the health and welfare of [the Village’s] constituents."22 Although the State had an interest in where waste would be dumped, the State simply did not suffer the imminent health threat that the Village suffered from the dumping of this waste inside Village limits. As a result, the Village could enforce its environmental regulations against Citizens Utilities even though the company acted pursuant to State authority.
Under Kalodimos, courts will also look to the role local authorities have traditionally played in dealing with a particular problem.23 The pre-Kalodimos case of City of Highland Park v. County of Cook is perhaps the best example of a court examining the roles municipal and county authorities traditionally played regarding a specific problem.24 In that case, in 1972, the City of Highland Park objected to a Cook County proposal to widen Lake-Cook Road from one lane to two lanes. For the previous thirty years, Cook County constructed, maintained, and set the speed limit for the entire length of the road, including the portion of the road inside the corporate limits of Highland Park, without objection.25 But in 1972, that home-rule City argued, among other federal and state claims, that the County (a home-rule county) violated a Highland Park city ordinance that required other units of local government to obtain its approval before commencement of construction on a city street.26 The fact that Cook County was the sole governmental authority that constructed, maintained, and posted speed limits for thirty years without objection was a factor the court used in finding for the County.27 The court in City of Highland Park v. County of Cook held that the city ordinance, passed pursuant to home-rule authority, did not pertain to Highland Park’s government and affairs under Section 6(a), but rather pertained to Lake-Cook Road, traditionally an affair for Cook County.
Finally, courts will account for any effect an ordinance passed pursuant to home-rule authority may have on those outside the corporate limits of the governmental unit.28 With few exceptions,29a home-rule governmental unit may not pass legislation resulting in an extra-territorial effect outside its jurisdiction or upon other local government units.30 In In re Anderson, the City of Waukegan attempted to extend the time for passing an appropriation ordinance from the statutorily required first quarter of the fiscal year to the second quarter pursuant to its home-rule authority. The court held, however, that extending the time permitted to pass an appropriation ordinance was not a valid exercise of its home-rule authority because the delay would create problems for the Lake County clerk in the timely determination of tax rates, and in the orderly collection of those the taxes.31
Section 6(c) Conflicts
When both a home-rule county and home-rule municipal ordinance fall within the scope of Section 6(a), Section 6(c) will apply if there is a conflict between the county and municipal ordinance. Section 6(c) states that when a home-rule county and municipal ordinance conflict, "the municipal ordinance will prevail within its jurisdiction."32 The leading case interpreting Section 6(c) is City of Evanston v. County of Cook.33
In that case, the City of Evanston claimed that a sales tax upon motor vehicles enacted by Cook County was impermissible under Section 6(c) because the tax was nearly identical to a tax imposed by it on the same motor vehicles. The City argued that, by imposing its motor vehicle tax, the City preempted the field of motor vehicle sales taxation and thus prohibited the County from legislating in that field. The Illinois Supreme Court disagreed and held that the City and County could concurrently tax the same motor vehicles.34 In so holding, the court in County of Cook drew a distinction between legislating in the same field and legislation that is conflicting. Relying upon delegate statements during the Sixth Illinois Constitutional Convention, the court indicated that the purpose of Section 6(c) is to resolve legislation where "clear opportunities for contradictions and conflicts between ordinances" exist, such as zoning and licensing ordinances. 35
A home-rule county zoning ordinance, for example, zoning a parcel of property within the jurisdiction of a home-rule municipality for single family residences, would directly conflict with that municipality’s zoning ordinance zoning the same parcel for commercial use only. In that situation, the municipal ordinance would prevail under Section 6(c), as no use could satisfy both ordinances. The principles governing the relationship between home-rule counties and municipalities can therefore be applied to specific and frequent situations where both the county and municipality wish to legislate. As set forth below, common issues that both counties and municipalities typically attempt to control are: taxation, zoning, licensing, and highway construction.
The Illinois Supreme Court clearly established the framework for home-rule taxation issues in City of Evanston v. County of Cook.36 Subject to other constitutional provisions limiting all home-rule units’ ability to tax,37 both a home-rule county and a home-rule municipality within that county may impose a tax on the same item concurrently; there is no conflict that would cause Section 6(c) to apply and prohibit a county from imposing the same tax as a municipality. A municipality, likewise, could impose a tax upon the same item a county already taxes. From a legal standpoint, county home-rule would have no effect upon a municipality’s ability to tax.
A home-rule county tax does have the effect, however, of restricting a municipality’s ability to ensure that a specific tax will not be placed on its constituents. That is illustrated by the court’s decision in County of Cook v. Village of Rosemont.
In that action, in 1997, the Village of Rosemont attempted to exempt persons attending amusement facilities from paying a 3% Cook County tax upon admission to amusement facilities in Rosemont.38 The Village argued that because its ordinance, exempting persons in the Village from paying the amusement tax, directly conflicted with the Cook County ordinance requiring persons in the Village to pay the tax, Section 6(c) rendered the county tax ineffective in the Village. Without elaborating in detail, the court rejected that argument under the theory that the Village ordinance did not pertain to its government and affairs under Section 6(a) because the tax related to the government and affairs of the county, even though the tax has some "peripheral fallout" in the Village.39 County home-rule, therefore, does not restrict how and whom a municipality may tax, but the municipality may not attempt to undercut the authority of the county either.
Zoning and Licensing Authority
City of Evanston v. County of Cook also governs the relationship between county and municipal home-rule in the area of zoning and licensing. Because there is opportunity for direct conflict between county and municipal zoning and licensing ordinances, Section 6(c) does apply, and the municipal ordinance prevails.40 The court’s use of the word "opportunity," however, leaves the door open for the home-rule county and home-rule municipality to zone and license in the same field, as long as the ordinances do not conflict directly.
An important question that remains is whether ordinances "conflict" only when compliance with both ordinances is logically impossible, or also when compliance with both ordinances is possible, but the county ordinance is more stringent, rendering the municipal ordinance impotent. For example, if a county ordinance restricts a parcel of land to residential use only, and a municipal ordinance restricts the same parcel to commercial only, City of Evanston clearly implies that, pursuant to Section 6(c), the municipal ordinance would prevail, restricting the parcel to commercial use.41 Likewise, if a municipal ordinance required a more restrictive land use than the county ordinance, the municipal ordinance would prevail.42 But, City of Evanston does not indicate whether commercial use would still be permitted if the municipal ordinance was cumulative,43 and residential uses were permitted in addition to commercial uses. If the county ordinance is still operative, then commercial uses would not be permitted, only residential. In effect, the county ordinance would override the municipal ordinance by making the municipal allowance for commercial uses irrelevant.
If a county, pursuant to its home-rule authority, attempts to regulate through licensing or zoning more stringently than a municipality inside the jurisdiction of that municipality, the county ordinance would likely fail. First, there was a strong presumption among the drafters of the 1970 Constitution, recognized by the Illinois Supreme Court, favoring municipal authority over county authority.44 Second, counties clearly are not generally charged with any statutory authority to regulate inside the jurisdiction of municipalities.45 Third, even if a regulation has some relation to its government and affairs, a home-rule county will not be able to undercut the authority of a municipality that also may regulate within its jurisdiction pursuant to its home-rule police power.46 Like Village of Rosemont, where the Village attempted to thwart the aims of the county in collecting its tax,47 a county proscribing a regulation that does not permit a use that the municipality does permit, could be construed as obstructing the municipal aim behind its licensing or zoning regulation. This situation has not come before the Illinois courts, but would likely be considered a "conflict" for the purposes of Section 6(c), in which case the Section 6(a) analysis would not be necessary.
Highway Construction and Improvement
The Illinois General Assembly delegated authority for maintaining and construction of roads to different units of local government depending on the type of road,48 thereby resolving conflicts that could arise between units of local governments. Although home-rule units do not derive their authority by statute, the Illinois Constitution does limit their authority to matters pertaining to their own government and affairs under Section 6(a).49 The General Assembly, indirectly through the Illinois Highway Code, determined what elements of the highway system pertain to the affairs of various units of local government.50 The Illinois Highway Code "reflects a carefully stratified system of control over the designation, planning, construction and maintenance of the highways, roads and streets through-out the state."51 Under the Code, municipalities may lay-out, construct, reconstruct, alter, widen, relocate, improve, maintain, repair, and vacate streets, alleys, and bridges. This authority is limited because the State and counties may locate and extend state and county highways into or through a municipality in the manner provided by the Code.52 The Code further provides that the county, with the approval of the corporate authorities of a municipality over 500 persons, and in its discretion in municipalities with populations under 500 persons, may connect or complete a county highway located inside the corporate limits of the municipality.53 Illinois courts have further clarified the "connect or complete" language, exempting any improvement, widening, or maintenance of an existing road from the statutory requirement to obtain municipal permission prior to construction."54
Therefore, the Illinois courts, using the Highway Code as a guide, have determined that the maintenance of existing county roads within the jurisdiction of municipalities pertains to the government and affairs of the home-rule county, but the construction of new roads in a municipality does not.55 If a home-rule county decides to create a new county highway that runs through or ends inside the corporate limits of a home-rule municipality with a population over 25,000, the county must obtain the approval of the municipality to construct such a road. Should the county wish to widen or improve an existing county highway, the county need not obtain the approval of the municipality because the maintenance of such roads pertains to the government and affairs of the home-rule county.
In three areas for potential conflict between home-rule counties and municipalities: taxation, zoning, licensing, and highways, county home-rule does not fundamentally change the legal position of municipalities within the county. The fundamental purpose behind home-rule county authority, to give local county authorities more flexibility to tackle county-wide problems,56 is met with the implementation of county-home rule without significant legal fallout for municipalities within the county. Despite various possibilities for interpretation, municipalities are well insulated under Section 6(c) from any encroachment upon their interest in zoning and licensing regulations. Home-rule counties will have significant control over the maintenance of existing state and county highways within municipalities, but may not construct new highways without municipal permission. The home-rule county has as much authority to implement a valid taxation scheme within the municipality as the municipality itself, but this authority does not diminish the ability of municipal authorities to implement their own tax schemes deemed necessary to benefit their constituents. Home-rule county authority may result in significant political disagreement.57 From a legal perspective, however, home-rule county authority gives the county more tools to legislate comprehensively for the benefit of the entire county, while preserving the legal authority constitutional drafters envisioned for municipalities in the 1970 Illinois Constitution.
1 Stacy St. Clair, How to Weigh in on Home Rule, Daily Herald, Aug. 13, 2003.
2 Findings Regarding Home Rule and Non Home Rule forms of Government (July 9, 2003)(memorandum from DuPage County Regional Planning Commission to DuPage County Development Committee) available at http://www.dupageco.org/emplibrary/home%20rule%20memo.pdf.
3 See Stephanie Cole, Illinois Home Rule in Historical Perspective, in Home Rule in Illinois (Stephanie Cole and Samuel K. Gove eds., 1973).
4 See e.g., 55 ILCS 5/5-12001 (enabling counties to enact zoning schemes outside the limits of municipalities that have municipal zoning ordinances in effect.)
5 Ill. Const. 1970 art. VII, § 6(a); City of Chicago v. Roman, 184 Ill. 2d 504, 512, 705 N.E.2d 81 (1998).
6 See City of Evanston v. County of Cook, 53 Ill. 2d 312, 316, 291 N.E.2d 823 (1973); Op. Att’y Gen (Ill.) S-496 (1972).
7 Ill. Const. 1970 art. VII, § 6(a).
9 See e.g., Schillerstrom Homes v. City of Naperville, 198 Ill. 2d 281, 762 N.E.2d 494 (2001).
10 See e.g., County of Cook v. Village of Rosemont, 303 Ill. App. 3d 403, 708 N.E.2d 501 (1st Dist. 1999).
11 Committee Proposals of July 9, 1970, in 7 Record of Proceedings, Sixth Illinois Constitutional Convention of 1969-1970 at 1621 (1970)(quoted in City of Des Plaines v. Chicago & North Western Ry., 65 Ill. 2d 1, 5. 357 N.E.2d 433 (1976)).
12 See e.g., Village of Rosemont, 303 Ill. App. 3d at 408.
13 See City of Carbondale v. Van Natta, 61 Ill. 2d 483, 485-87, 338 N.E.2d 19 (1975)(Home-rule municipality only has authority to zone outside its corporate limits pursuant to statutory authority.)
14 See e.g., 605 ILCS 5/2-202, 5-408, 7-101(indicating what local government authority may construct and maintain certain roads).
15 Kalodimos v. Village of Morton Grove, 103 Ill.2d 483, 501, 470 N.E.2d 266 (1984).
17 Commercial Nat’l Bank v. City of Chicago, 89 Ill. 2d 45, 77, 432 N.E. 2d 227 (1982).
18 Village of Bolingbrook v. Citizens Utilities Co., 158 Ill. 2d 133, 140, 632 N.E.2d 1000 (1994).
19 See 220 ILCS 5/1-102.
20 Citizens Utilities., 158 Ill. 2d at 140.
23 Kalodimos, 103 Ill.2d at 501.
24 City of Highland Park v. County of Cook, 37 Ill. App. 3d 15, 24, 344 N.E.2d 665 (2d Dist. 1975).
25 Id. at 18.
26 Id. at 19.
27 Id. at 24.
28 Commercial Nat’l Bank, 89 Ill. 2d at 77.
29 E.g., 65 ILCS 5/11-13-1 (allowing municipalities to enact zoning ordinances governing property within one and one-half miles beyond its corporate limits if not included in another municipality and the county has not already enacted a zoning ordinance governing the property); Op. Att’y Gen. (Ill.) 020 (1999) (suggesting a municipality may require zoning and building permits on property contiguous to corporate boundaries if an annexation agreement has been entered into.)
30 See In re Application of Anderson, 194 Ill. App. 3d 414, 422, 551 N.E.2d 406 (2d Dist. 1990).
31 Id. at 422-23.
32 Ill. Const. 1970 art. VII, § 6(c).
33 City of Evanston v. County of Cook, 53 Ill. 2d 312, 291 N.E.2d 823 (1973).
34 Id. at 318-19.
35 Id. at 317.
37 E.g., Ill Const. 1970 art. VII, § 6(e).
38 County of Cook v. Village of Rosemont, 303 Ill. App. 3d at 403, 404, 708 N.E.2d 501 (1st Dist. 1999).
39 Id. at 410.
40 City of Evanston, 53 Ill. 2d at 317.
41 See Id.
42 See Oak Forest Mobile Home Park v. City of Oak Forest, 27 Ill. App. 3d 303, 324, 326 N.E.2d 473 (1st Dist. 1975)(Mobile home park must comply with the more stringent municipal ordinance regulating mobile homes, not the county ordinance regulating the same mobile homes.)
43 Daniel R. Mandelker & John M. Payne, Planning and Control of Land Development: Cases and Materials 305 (5th ed. 2001)(A cumulative zone exists when less restrictive use is allowed in a more restrictive district. Most modern zoning ordinances are non-cumulative, limiting each district to one category of uses.)
44 City of Evanston, 53 Ill. 2d at 317-18; Committee Proposals of July 9, 1970, in 7 Record of Proceedings, Sixth Illinois Constitutional Convention of 1969-1970 at 1648 (1970).
45 See e.g., 55 ILCS 5/5-12001.
46 See Village of Rosemont, 303 Ill. App. 3d at 410-11.
48 605 ILCS 5/7-101.
49 Ill. Const. 1970 art. VII, § 6(a).
50 See City of Highland Park, 37 Ill. App. 3d at 20-24.
51 605 ILCS 5/2-202 (Definition of highway includes rights of way, bridges, drainage structures, signs, guard rails, protective structures and all other structures and appurtenances necessary or convenient for vehicular traffic); City of Highland Park, 37 Ill. App. 3d at 23.
52 605 ILCS 5/7-101.
53 605 ILCS 5/5-408.
54 City of Highland Park, 37 Ill. App. 3d at 23(applies to home-rule counties); Village of Oak Brook v. County of DuPage, 173 Ill. App. 3d 490, 494, 527 N.E.2d 1066 (2d Dist. 1988)(applies to non-home-rule counties).
55 See Village of Oak Brook, 173 Ill. App. 3d at 494.
56 John W. Swain and John Rehfuss, Local Government, in Governing Illinois Under the 1970 Constitution (P. Allan Dionisopoulos ed., 1978).
57 See County Home Rule in Illinois (David R. Beam et al. eds., 1977)(Providing an overview of political arguments made in favor and in opposition to county home-rule in various Illinois counties.)
Marc Zarlengo is a law student at Northern Illinois University College of Law (expected J.D., May 2005) He earned a .A. in Economics from the University of Colorado at Denver. He lives with his wife and two children in Romeoville, Illinois.