Chapter 25 Standing to Challenge or Enforce Zoning Ordinances

• Library: The Zoning and Land Use Handbook (ABA) (2016 Ed.)

Chapter 25 Standing to Challenge or Enforce Zoning Ordinances

This chapter deals with judicial review of zoning decisions. It covers standing to change or enforce zoning laws; administrative review, including exhaustion of administrative remedies; forms of action to challenge an administrative decision or the validity of an ordinance; the nature of the relief courts may grant; the issues raised in determining the validity of a zoning classification; and the basic format of the complaint and answer. Special attention is given to current case law, and the practitioner is duly warned that effective counsel in zoning cases requires a constant review of current opinions.

A. Contract Purchaser, Property Owner, or Party in Possession

The question of when an individual has standing to challenge the validity of a zoning ordinance raises significant problems. It has been held that a plaintiff who does not have a possessory interest in the property or is not the titleholder does not have standing to test the validity of the zoning restriction.¹ In Clark Oil, the company had a contract to purchase real property that was contingent on the granting of a variation. The Illinois Supreme Court held that the Clark Oil Company did not have standing. It was, therefore, necessary to have the property owner join in the suit.²

However, the federal courts impose a different standard with reference to standing to challenge the constitutionality of a zoning ordinance. A contract purchaser is considered to have a sufficient interest to challenge the ordinance, either under the Fourteenth Amendment to the United States Constitution or under the Fair Housing Act, which is Title Vill of the Civil Rights Act of 1968.³

B. Neighboring Property Owner Must Show Some Unique Damage to Challenge Ordinance

Neighboring property owners may question the validity of zoning ordinances when they can show that they will sustain some special damage different from that sustained by the public generally.⁴ The courts have even upheld the right of a nonresident party to challenge the validity of an ordinance upon a showing that the party "suffered a special damage by reason of the change in the use or zoning—different from that suffered by the general public."⁵ The court reasoned that there did not appear to be any logic in using the municipality's boundary line for prohibiting a property owner immediately abutting the subject property from bringing an action. The harm was just as great whether the owner was inside or outside the municipality.

Section 11-13-15 of the Illinois Municipal Code⁶ provides that any owner or tenant of real property within 1,200 feet in any direction may bring an action to enforce a building or zoning ordinance. in connection with this Palella v. Leyden Family Service & Mental Health Center⁷ a case reaffirming the power of § 11-13-15, was an action brought by the neighbors of operators of a nursing home to enjoin the operation of a nonmedical detoxification center as a violation of the local zoning ordinance. The court enjoined the operation of the detoxification center and also allowed a substantial award of attorneys' fees.

In Klaeren,⁸ the Illinois Supreme Court stated the following in regard to the standing of a neighboring property owner:

The court in [Yusuf v. Village of Villa Park]⁹ held that a diminution in value and a loss in the quiet enjoyment of one's property caused by additional traffic and noise created by the proposed special use was adequate to confer standing on adjoining property owners. . . . The appellate majority in this case likewise held that any increase in noise, traffic or light pollution created by the development would affect the use and enjoyment of plaintiffs' properties in a manner distinct in both quantity and quality from any injury suffered by the public as a whole. We agree with this conclusion.

C. Neighboring Property Owner Intervening to Sustain Ordinance

The concept of showing that the property owner will sustain damages that are different from those sustained by the public applies when a property owner seeks to defend a zoning restriction under attack by some other property owner.¹⁰ Upon a showing of some special damage, the property owner may be permitted to intervene.¹¹

D. Standing of Municipalities

The law concerning standing of municipalities has undergone a change. Early cases such as Village of Bensenville v. County of DuPage,¹² held that municipal corporations did not have standing to test the validity of zoning restrictions adopted by the county for property abutting the municipality.¹³ This rationale stemmed from a narrow interpretation of the municipal zoning enabling statute.¹⁴ The same rationale did not apply to home-rule municipalities, which were held to have standing since they were not restricted by the zoning provisions but rather could look outside their boundaries when it was determined that they were seeking to enforce a public policy manifested by their ordinances and that they had the same rights to seek injunctive relief as a private person or a corporation might have.

The law is best expressed by Village of Barrington Hills v. Village of Hoffman Estates,¹⁵ in which the Illinois Supreme Court held that a municipality, whether home rule or non-home rule, has standing to challenge the zoning decisions of other governmental units upon a clear demonstration that it would be substantially, directly, and adversely affected in its corporate capacity.¹⁶ In Barrington Hills, the complaint of two municipalities had been dismissed on the grounds that they lacked standing to challenge the rezoning of certain property to allow for the development of an open-air music theater. The plaintiff municipalities alleged special damages in their corporate capacities in the form of a loss of municipal revenues due to a diminution in property values, an increase in municipal expenditures for the hiring of additional police manpower and squad cars to monitor vehicular congestion, the additional expense of clearing litter and debris on their roads and highways that would result from theater crowds, the degradation of ambient air quality due to vehicular exhaust, and the increase in sound levels resulting from increased traffic flow and the electronic amplification of music.

The Illinois Supreme Court concluded that these potential results of the rezoning indicated direct, substantial, and adverse effects on the plaintiff municipalities in the performance of their corporate obligations, thus giving them a real interest in the subject matter of the controversy.¹⁷

The Barrington Hills court also cited with approval City of Hickory Hills v. Village of Bridgeview,¹⁸ in which the Illinois Supreme Court held that the complaining municipality had standing when it was obliged under a previous court order to provide water and sewage services to the subject property, finding that the plaintiff was an "aggrieved person" with a real interest in the rezoning ordinances adopted by the adjoining municipality. The Barrington Hills court also cited with approval City of West Chicago v. County of DuPage.¹⁹

However, for a contrasting view, see Village of Riverwoods v. Village of Buffalo Grove,²⁰ in which the court held that the Village of Riverwoods had failed to introduce facts during the trial sufficient to show that the rezoning taking place in Buffalo Grove would have a substantial adverse effect on the performance of its municipal corporate obligations and, therefore, Riverwoods was without standing to contest the rezoning. The court held that any impact of the development on Riverwoods' municipal expenditures was de minimis. Village of Riverwoods provides an interesting contrast to Barrington Hills, supra. The holding by the appellate court in Village of Riverwoods is interesting in light of the fact that Riverwoods' comprehensive plan designated the site in question for single-family residential and the site was being developed with two 12-story office buildings connected by a one-story concourse and two four-story parking structures. The site was within 1,600 feet of the Village of Riverwoods.

In City of Carbondale v. City of Marion,²¹ the court held that the City of Carbondale lacked standing to challenge a tax increment financing plan to develop a retail shopping mall. Carbondale argued that it had set forth a distinct and palpable injury in the form of lost sales and property tax receipts since the proposed mall, to be located in Marion, would attract some businesses from Carbondale. The appellate court, in a split decision, held that the injury set forth was not enough to show standing. Applying the tests established in Greer v. Illinois Housing Development Authority,²²the court in City of Carbondale stated that "the claimed injury, whether 'actual or threatened' . . . must be: (1) 'distinct and palpable' . . . (2) 'fairly traceable' to the defendant's actions . . . and (3) substantially likely to be prevented or redressed by the grant of the requested relief" (citations omitted by the City of Carbondale court).²³ The court held that the alleged resulting loss in real estate tax receipts was not sufficient injury to confer standing. Freedom from competition is not a legally cognizable right.

E. Municipality Has Standing to Challenge Its Own Board of Appeals

In Reichard v. Zoning Board of Appeals of City of Park Ridge,²⁴ the court held that a municipality had standing to challenge the validity of a determination by its own board of appeals in regard to a variation granted by the board.²⁵

F. Standing of School District

The Illinois Municipal Code allows a school district within which the property at issue or any part of it is located to appear at any hearing before a zoning commission, board of appeals, or any commission or committee and to present evidence.²⁶ However, § 11-13-20 does not give a school district a right as a matter of law to intervene in any succeeding litigation. The general rule that...