The Journal of The DuPage County Bar Association

Back Issues > Vol. 30 (2017-18)

Zoning Litigation in DuPage County
By Daniel S. Porter

The Illinois Municipal Code (the “Code”) requires municipalities to conduct public hearings prior to issuing final decisions in zoning matters.1 In most cases, it also requires municipalities to use a tiered approach in deciding zoning matters, whereby an appointed commission or board holds one or more public hearings on proposed zoning relief and then makes recommendations to the corporate authorities.2 Most zoning litigation involves the application of one of the provisions of a zoning ordinance to a particular parcel of land, or the zoning classification of a particular parcel. The fundamental question becomes whether the zoning classification is reasonable. Other considerations are whether there is diminution of value to the land.

Final decisions rendered by such appointed bodies have long been subject to judicial review pursuant to the Code’s explicit adoption of the Illinois Administrative Review Law.3 In seeking relief from the restrictions of a zoning ordinance, a client may pursue four options: (1) a conditional use permit, (2) a variance, (3) a special use permit, or (4) an amendment to the zoning ordinance to rezone the property.

Conditional Use Permits. A conditional use is permitted to operate in a certain zoning district subject to approval by the municipality.4 Generally, a conditional use allows a property owner to put the property to a use the ordinance expressly permits, and inclusion of a conditional use in an ordinance is tantamount to a legislative finding that the permitted use is in harmony with the general zoning plan and will not adversely affect the neighborhood.5 The Code defines a conditional use as a use either public or private having some special impact that requires a careful review of the location, design, configuration, and the desirability of permitting its establishment on any given site. Its use may or may not be appropriate in a particular location depending on a weighing, in each case, of the local impact and effect.

Section 37-1413 of the DuPage County Zoning Code provides direction on conditional uses. This section recognizes there are conditional uses which, because of their unique characteristics, can only be properly classified in any particular district or districts upon consideration in each case of the impact of those uses upon neighboring land at the particular location.

Such conditional uses fall into three (3) categories:

A. Uses publicly operated or traditionally affected with a public interest;

B. Uses entirely private in character, but of an unusual nature where their operation may give rise to unique problems or benefits with respect to their impact upon neighboring property, public facilities, or the County as a whole; and

C. Accessory uses on a residential zoning lot, (including buildings, structures and uses) that are accessory to the principal use, building or structure on a residential zoning lot which have been established on a residential lot for at least five (5) years but without proper authority, (e.g.: without building or zoning permits).

A property owner must file an application to use the land for one or more conditional uses, or it may be initiated by resolution or motion by the County Board.6 A public hearing is then held pursuant to section 37-1415 to determine whether the conditional use permit will be granted.7 The applicant has the burden of proving the proposed use meets all the standards required by the controlling zoning ordinance.8

To qualify for a permit, the proposed use must generally be in harmony with the general purpose and intent of the Code, not be injurious to the neighborhood, detrimental to the public welfare, or in conflict with the County’s Comprehensive Plan for development.

In addition to these general tenets, there are seven (7) specific standards the Zoning Board of Appeals hears evidence and makes findings on in order to determine whether a conditional uses permit is proper. These that the conditional use will not: (1) impair an adequate supply of light and air to adjacent property; (2) increase the hazard from fire or other dangers to said property; (3) diminish the value of land and buildings in the vicinity of the proposed conditional use; (4) unduly increase traffic congestion in the public streets and highways; (5) increase the potential for flood damages to adjacent property; (6) incur additional public expense for fire protection, rescue or relief; or (7) otherwise impair the public health, safety, comfort, morals or general welfare of the inhabitants of DuPage County, nor will it otherwise create a nuisance.9

Variances. In contrast to a conditional use, a variance is authority extended to a property owner to use the property in a manner forbidden by the zoning enactment. 3 K. Young, Anderson’s American Law of Zoning § 20.03, at 416 (4th ed. 1996). Most villages will not grant a variance unless the petitioner can show that the zoning code, as applied to his or her particular property, results in an unnecessary hardship or practical difficulties. Id. The variation must also be in furtherance of the general intent of the regulations causing the hardship.

A variation is defined by the Code as a relaxation of the terms of the zoning ordinance where such variation will be in harmony with the general purpose and intent and not contrary to the public interest, and where, due to conditions peculiar to the property and not the direct result of the actions of the owner, a literal enforcement of the ordinance would result in practical difficulties or a particular hardship.

Variations may be granted in the use, construction, or alteration of a building or structure, or in the use of land. While variances may be granted at the county level, municipalities with populations of less than 500,000 also have the power under section 11-13-5 of the Municipal Code to grant them through the adoption of an ordinance.10 This is specifically a legislative function, and is not subject to the administrative review principles which generally apply.11 Variances are governed by section 37-1410 of the Code. Similar to conditional use permits, a property owner must file an application to use the land for one or more conditional uses, or it may be initiated by resolution or motion by the County Board.12 A public hearing is then held pursuant to section 37-1411.2 to determine whether the variance will be granted.

To qualify for a variance, the proposed use must generally be in harmony with the general purpose and intent of the Code, not be injurious to the neighborhood, detrimental to the public welfare, or in conflict with the County’s Comprehensive Plan for development.

The seven (7) specific standards applicable to conditional use permits previously-outlined also apply.13 In addition, however, the Zoning Board of Appeals or the Zoning Hearing Officer may recommend that conditions and restrictions be imposed upon the premises benefited by a variation as may be necessary to comply with the criteria established in this subsection to reduce or minimize the effect of such variation upon other property in the area, and to better carry out the general intent of section 37-1411.3.14

Section 37-1411.9 provides a simplified procedure for variation applications seeking ten percent (10%) or from provisions of the Code governing bulk and location of structures. Said petition may be filed with the director of the department of economic development and planning or his designee. The director can then determine whether the variation requested or other variation as he may deem appropriate shall be granted. This simplified procedure must comply with the provisions of section 37-1411.3.

Special Uses. A special use is permitted for the rare occasion when the proposed use does not fall into a use type as defined by the village or county zoning ordinance. Generally, the application and review process are the same as that of a conditional use permit.

Amendments to Existing Code Provisions. Finally, a rezoning is an amendment to a municipality’s zoning code that changes the subject property’s zoning district. It is appropriate when a petitioner wishes to conduct a primary use not permitted in the property’s current zoning district and does not or cannot pursue a special use permit.

Amendments are outlined in section 37-1412. Amendments require the County Board to move to amend regulation so long as provided that consideration be given to existing conditions, the conservation of property values, the direction of building development to the best advantage of the entire County, and the uses to which property is devoted at the time of the adoption of this chapter. A public hearing is required, which must comply with the provisions of section 37-1415. At the hearing, the Zoning Board of Appeals or Zoning Hearing Officer shall consider and make recommendations on all proposed amendments, considering: (1) the testimony at the hearing; (2) site inspection of the property in question when determined to be necessary; and (3) letters and recommendations from all interested persons.15

After the hearing, the Zoning Board of Appeals must make written findings based upon the evidence and transmit a recommendation to the County Board. If the purpose and effect of the amendment is to change the zoning district classification of a particular property, the written findings must evaluate the following factors: (A) existing uses of property within the general area of the property in question; (B) the zoning classification of property within the general area of the property in question; (C) the suitability of the property in question for the uses permitted under the existing zoning classification; (D) the trend of development, if any, in the general area of the property in question, including changes, if any, which may have taken place since the property in question was placed in its present zoning classification; (E) the length of time the property has been vacant as zoned, considered in the context of the land development in the area surrounding the subject property; and (F) the extent to which property values are diminished by particular zoning restrictions.16

Objections Leading to Litigation. Whether it is a municipality, the county, or a group of aggravated neighbors, there is a chance a request will be met with opposition. As previously stated, the applicant has the burden of proving the proposed use meets all standards required by the ordinance. Since the standards for review are specifically laid out with no one factor being dispositive, it is important to provide the board or hearing officer with a detailed factual analysis supporting a finding in favor of the proponent on each factor. Expert testimony is a critical component to advancing, or opposing, a proposal. It is Expending funds early to retain experts to assist the fact finder in its decision in the first instance, or make a complete record that can later be reviewed by a court.

The importance of expert testimony in zoning litigation is highlighted in County of Du Page v. K-Five Constr. Corp.17 DuPage County filed an action for injunctive relief against the defendant construction company for the violation of its zoning ordinance in use of a property as an asphalt plant.18 The trial court entered a judgment in favor of defendant and defendant-intervenor companies, and denied the County’s request for injunctive relief. The County appealed, and the Second District affirmed. The Second District determined that an asphalt plant was an accessory use to a legal nonconforming use under the provisions of plaintiff’s zoning ordinance.

Both sides presented extensive testimony, including independent experts.19 The court found that defendants’ 10-year discontinuance of asphalt operations on the subject property constituted an abandonment of that use. However, the court held that the County was equitably stopped from enforcing its zoning ordinance against the asphalt plant and barred by the doctrine of laches because the County had not presented sufficient evidence to show a considerable benefit to the public through enforcement, and defendants had shown that enforcement of the ordinance would have caused them substantial economic harm.20 The County’s evidence fell short where its expert testified to air and noise pollution generally at asphalt plants, but presented little evidence as to specific problems created by the asphalt plant at the subject property at issue.21 Further, no tests were performed to support the complaints that odor and air emissions were causing negative changes in the environment or presenting health risks to the citizens.22

Constitutional concerns through the First Amendment can operate to relax an applicant’s burden in seeking a conditional use permit. In Our Saviour’s Evangelical Lutheran Church v. Naperville, the Second District reviewed the factors in determining the validity of the City of Naperville’s decision to deny the church a conditional use permit two adjoining lots containing single-family residences previously acquired as an additional parking area.23 The city planning commission recommended that the conditional use requested be granted so as to permit additional parking.24 The Naperville city council denied the church’s application for the conditional use.25 The church filed suit against the city seeking a declaratory judgment and injunctive relief.26 The Second District reversed the trial court’s judgment, finding the church’s burden of presenting clear and convincing evidence to sustain its allegations is relaxed where the decision has to do with the free exercise of religion under the First Amendment.27 It was held that the refusal of Naperville to grant a conditional use permit for a parking lot was arbitrary, capricious, and unreasonable because the Church met the standards of the Naperville conditional use ordinance and the denial did not bear a real substantial relation to the public health, safety, or general welfare.28 The cause was remanded to the trial court with instructions to issue the conditional- use permit for parking purposes.

The facts and circumstances specific to each situation greatly determine the ultimate outcome. In Wright v. County of Du Page, Plaintiff businesses offered massages by female employees who were nude or partially nude.29 Plaintiffs were located adjacent to residential property and within business districts that were not zoned for adult businesses. DuPage County sought an injunction against plaintiffs.30 The circuit court permanently restrained and enjoined plaintiffs from using their properties as adult businesses.31 The Second District held that plaintiffs violated DuPage County, Illinois, Zoning Ordinance § 37-4.16-2 because plaintiffs were within 500 feet of residential property.32 Furthermore, the appellate court held that the adult businesses conducted by plaintiffs did not constitute permitted or nonconforming uses because the uses were not lawful at their inception.33 Finally, the appellate court held that because there was no intent to convey a particularized message, activities conducted by plaintiffs’ employees did not constitute expression protected by U.S. Const. amend. I.34

Conclusion. Zoning disputes are generally characterized by issues and rules that are peculiar to each specific locality and the use. Once in litigation, there are distinct burdens of proof, multi-factor tests, short time frames, often angry neighbors, civil associations, and constitutional challenges. There are too many possible issues, applicable statutes, and different players to ever touch on all of it in one short article. As with any area of the law governed by case-by-case circumstances within a statutory framework, it is important to have a general understanding of where to look for the standards to be applied and ways to prove your case.

1. 65 ILCS 5/1 et al.
2. 65 ILCS 5/11-13-1 et al.
3. 65 ILCS 5/1-2.1-1 et al.
4. City of Chi. Heights v. Living Word Outreach Full Gospel Church & Ministries, 196 Ill. 2d 1, 17, 749 N.E.2d 9.16 (2001).
5. Id.
6. Du Page County Zoning Ordinance, § 37-1413.2 (2005).
7. Du Page County Zoning Ordinance, § 37-1413.3 (2005).
8. Our Savior’s Evangelical Lutheran Church of Naperville, 186 Ill. App. 3d 988, 995, 542 N.E.2d 1158 (2d Dist. 1989).
9. Du Page County Zoning Ordinance, § 37-1413.5.
10. 65 ILCS 5/11-13-5; see also Ashley Libertyville, LLC. V. Vill. of Libertyville, 378 Ill. App. 3d 661, 665 (2d Dist. 2008).
11. Hawthorne v. Village of Olympia Fields, 204 Ill. 2d 243, 790 N.E.2d 832 (2003).
12. Du Page County Zoning Ordinance, § 37-1410
13. Du Page County Zoning Ordinance, § 37-1411.3.
14. Id.
15. Du Page County Zoning Ordinance, § 37-1412.
16. Id.
17. County of Du Page v. K-Five Constr. Corp., 267 Ill. App. 3d 266, 642 N.E.2d 164 (2d Dist. 1994).
18. Id. at 267.
19. Id. at 270-71.
20. Id. at 271-76.
21. Id. at 276.
22. Id.
23. Our Saviour’s Evangelical Lutheran Church v. Naperville, 186 Ill. App. 3d 988, 542 N.E.2d 1158 (2d Dist 1989).
24. Id. at 990.
25. Id. at 991.
26. Id.
27. Id. at 993.
28. Id. at 995.
29. Wright v. County of Du Page, 316 Ill. App. 3d 28, 29-30, 736 N.E.2d 650 (2d Dist. 2000).
30. Id. at 30.
31. Id. at 35.
32. Id. at 37.
33. Id. at 38.
34. Id. at 41-43.

Dan Porter is an associate with Momkus McCluskey Roberts LLC representing clients in commercial and civil litigation. Prior to joining Momkus McCluskey Roberts LLC, Dan worked as a Staff Attorney for the judiciary at the 18th Judicial Circuit Court. Dan graduated magna cum laude from Northern Illinois University College of Law in 2013.

 
 
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