Chapter 28 Discovery

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

Chapter 28 Discovery

Discovery plays an important role in zoning litigation. Ordinarily, discovery in zoning litigation is best commenced with interrogatories, followed by depositions. Not to be overlooked is the utility of notices to admit facts or the genuineness of documents as a method of establishing threshold issues, such as title, beneficial ownership, or consent of the land trustee, that might otherwise require cumbersome or inconvenient proofs.¹ Use of these notices is also an efficient way to avoid consuming trial time with the authentication of documents.

Except by leave of the court, no discovery can be taken from the defendant in a prosecution for violation of a zoning ordinance when the only penalty is a fine.²

However, the question of a deprivation of value may be totally different in an action brought under 42 U.S.C. § 1983. In Executive 100, Inc. v. Martin County,³ the court dealt with a § 1983 suit challenging the denial by the county of a rezoning of the plaintiff's property from agricultural to industrial. The plaintiff argued that the value of the property had been significantly diminished by the denial of the request for rezoning. However, while one who owns agricultural land is always going to be economically benefited by having it rezoned to industrial, to argue that the value has been diminished significantly by the board's action is to fail to note that it has really not been increased significantly by board action. The practitioner should note the difference between the argument made in People ex rel. Alco Deree Co. v. City of Chicago⁴ regarding a declaratory judgment action challenging the validity of the zoning and an action such as Executive 100 claiming that there has been a taking.

A. Discovery for Plaintiff

The plaintiff can use interrogatories to discover when and under what circumstances amendments or variations were granted for other property in the vicinity. Copies of the minutes of the corporate authorities and of the plan commission can be secured for examination. In most municipalities that record their plan commission and village board meetings, it should be possible to secure these tape recordings for the purpose of transcribing them. The extent of the comprehensive planning undertaken by a community and any reports and documentation that the process has produced can also be secured readily through the use of interrogatories and notices to produce documents. Among the documents that the plaintiff's attorney should...