Zoning Litigation - Common Sense Rules To Reduce Vulnerability
By CHARLES ECKENSTAHLER AICP and CRAIG HULLINGER AICP
Introduction
The days when municipalities were not subject to litigation over disputed planning and zoning decision are long over. Property owners and developers now often seek judicial action when the decision of the plan commission, city council, village board or county commission is not favorable to their cause. Some developers plan from the start to proceed with litigation as part of the approval strategy.
The United States Supreme Court has issued rulings concerning compensation for the regulatory taking of private property in Lucas v. South Carolina Coastal Council (1992) and Dolan v. City of Tigard (1994). In these complex cases the court held that compensation for the taking of property rights by regulations may be cause for compensation.
As a result, more property owners and developers are using the threat of litigation as a ploy to influence decisions in their favor. They reference the threat of litigation as part of their presentations using it to demand prompt and favorable decisions on zoning matters. This threat, however, is not idle. Zoning and “takings” litigation is on the rise notes Beth Ruyle, Executive Director of the South Suburban Mayors and Managers Association. Ruyle administers a self insurance fund covering nineteen local governments in the southern suburbs of Chicago. Ruyle notes, “When we first started our insurance program we didn’t think seriously about zoning and property rights litigation, because none of our members experienced problems with such litigation. Today, we are much more concerned. We have, over the past two years, been involved in several cases. Clearly, the trend for this type of litigation is increasing.”
Six Ingredients For “Bullet Proofing” The Plan and Zoning Process
We recommend that municipalities consider the following six ingredients to avoid litigation:
1. Define The Reasonable Use Of The Subject Property If you have not done so in the recent past, review and update your comprehensive plan, especially the official statements of goals and policies. This portion of the document expresses the desired future land uses for various portions of the community. These statements will form the legal basis for the zoning ordinance. It also demonstrates that the ordinance was not arbitrary or imposed in violation of planning and zoning laws. The goals and policies should tie directly back to state enabling legislation for planning and zoning. This direct linkage makes it easy for the court to follow the logic for the development of the municipal goals and objectives.
2. Update The Zoning Ordinance
It is fairly common for communities to adopt a zoning ordinance and believe that it should never be amended. We recommend that periodically (every few years) a comprehensive review of the ordinance be completed by the plan commission. This process further documents the effort of the municipality to “keep current” the zoning map, change outdated language and to modify specific language to further implement the comprehensive plan.
Your legal counsel is an important part of this process. You and your attorney should carefully review the ordinance to ensure that you are following it and that it is current with state law and recent court rulings. You may also want to engage a professional planner to assist in the update process. This may prove cost effective in avoiding litigation.
Professional assistance can provide you information concerning recent rulings and legislation which may require you to modify some of the current ordinance language. The advisor is most often an “outsider” who can discuss problems and make recommendations without the emotional attachment found in local property owners. Neither will the advisor reflect individual preferences.
It is also good practice to update the zoning ordinance when the comprehensive plan is updated, or immediately following the update of the plan. Ideally, the same individuals should prepare the land use plan maps and zoning maps at the same scale and at the same time. The categories of the land use plan should also correlate to the zoning map categories.
3. Organize Your Decision Making Process
To Rely On Facts Many plan commissions pay little attention to the specific facts of the matter at hand. They often do not formally state why they denied or approved the zoning request. They do not make a formal written report. In making your recommendation or decision on a zoning request, you should carefully consider all relevant information. You should ensure that the rationale for your decisions is documented in writing so that the court will not have to speculate as to why you made your decision. The written “Findings of Fact” should be prepared by your attorney and approved by the commission. You should, of course, reference the land use plan and map, zoning map, the goals and policies of your plan, and the purposes and intent of your zoning code. Topography, flood plain, wetlands, wet soils and prime farmlands are all relevant information. The distance to utilities is also important.
In Illinois, the courts rely heavily on the standards for review of zoning cases enunciated in the LaSalle v. County of Cook (1957) and Sinclair Pipe Line Company v. Richton Park (1960). The first six standards were established in LaSalle V. Cook, while the last two were developed from the Richton Park case. The court uses these standards to evaluate the legitimacy of your decision. It is, therefore, logical to use these standards when developing your decision. The standards are as follows:
1. The existing uses and zoning of nearby property;
2. The extent to which property values are diminished by the particular zoning restrictions;
3. The extend to which the destruction of plaintiffs’ property values promote the health, safety, morals or general welfare of the public;
4. Relative gain to the public compared to hardship imposed upon the individual property owner;
5. The suitability of the subject property for the zoned purposes;
6. The length of time the property has been vacant as zoned, considered in the context of land development in the vicinity;
7. Community need for the proposed land use;
8. The care with which the community had undertaken to plan its land use development.
A misconception is that the land use of the property changes with the change of owners. In most cases zoning matters are tied to the land and any subsequent owners of the property can continue to use the property within the terms and conditions as approved by the municipality. We recommend that you develop a non-emotional, factual evaluation process based on the specific requirements and procedures outlined in the zoning ordinance for every rezoning matter. You must include a motion to approve or deny a rezoning request and reiterate the finding of fact, reasons that the request is inconsistent with the approved municipal plan and the specific reasons that the request is not in the best interest of the municipality. You should write this in proper form and make it available for public inspection.
4. Follow Proper Procedure Within Legitimate Authority
The courts have ruled in favor of developers in a large number of recent cases because the municipality did not follow proper procedure or acted beyond the authority given to them by the zoning ordinance. The public hearing must follow precisely the terms of the ordinance. Failure to do so could result in cancellation of the decision and the necessity to repeat the zoning process. In one (non-Illinois) instance, the municipality caused a delay and the judge ruled the municipality, as a result, caused monetary loss to the developer. The court then required the municipality to pay damages. Acting within the boundary of the zoning ordinance is also important. Issues of appearance, color of the building, and construction materials are not typically regulated under the terms of the zoning ordinance. Nor can you consider the qualifications of the property owner or the developer.
5. Establish Written Record And Document Procedures
From the first meeting with the applicant, written records are important. A short note in the file may be important in the case of litigation. Some communities record or video tape each meeting for their permanent record. Others take written notes on lap top computers which are distributed to all parties. You should request a completed application, with supporting information, for every zoning matter. You should note all conversations and prepare a summary of every meeting. The community then places these into the file. You should also make a record of all phone calls attempted and include this information in the file. The community must also keep a copy of all correspondence and the minutes of each meeting at which it takes action. The community should store these according to the law and until the time limit for litigation expires.
6. Use Consistent Procedures
This last rule is common sense, but is often forgotten. Realize that all prior actions of the municipality are open for inspection and review. Therefore, if you approved an action once, your reasons for that decision become the rationale for someone to ask for a similar consideration. Know the reasons for prior decisions and return to them when granting or denying a request. The community should resolve any questions of doubt before taking action and, if the action is not similar to any previous decision, state the reasons. Listen to supporting and opposing views on the matter before rendering an opinion. You must act in “good faith” and make the decision which is in the best interest of all the residents of the municipality, not just those attending the meeting.
Do not make your decision prior to the public hearing. This is true for both commissioners and staff. A common problem is staff writing reports and making a specific recommendation before the public hearing. This insults the public. It is both poor planning and poor politics. Staff should make recommendations following the public hearing.
Conclusions
The authors developed the six ingredients for successful zoning as a result of their twenty-five plus years of experience in concert with the review of recent litigation. The authors intend that the six ingredients serve as a guide for plan commissioners and their staff to address the growing problems caused by the threats of litigation against municipal decisions in planning and zoning. Ever present diligence is necessary today to ward off both the effective use of threats of litigation and litigation itself.
Knowledge and consistent administration of the planning and zoning functions in a fair impartial manner remain the best means to “bullet proof” your municipality’s planning and zoning functions. Likewise, it remains imperative that the municipality retain the services of a qualified attorney. The attorney should be made available to the planning commission or zoning board of appeals for advice on difficult land use decision. No criteria can replace knowledgeable specific legal advise.
About the Authors
Chuck Eckenstahler earned his CED certification in 1984 and is now semi retired. He is a 35 year veteran real estate and municipal planning and economic development consultant who helped originate and taught economic development subjects in the Certificate in Economic Development Program offered by the Graduate School of Business at Purdue North Central, Westville, Indiana and serves on the faculty of the Lowell Stahl Center for Commercial Real Estate Studies at Lewis University, Oakbrook Illinois. He can be contacted at pctecken@comcast.net or by phone at 219-861-2077.
Craig Hullinger AICP has 35 years of experience in economic development, city planning, and transportation planning. He is a Partner in the consulting firm of Ruyle Hullinger and Associates. He was formerly the Economic Development Director of Peoria, the Director of Land Use for Will County, and the Village Manager of Olympia Fields, Minooka, and University Park. He is member of the American Institute of Certified Planners, a Vietnam Veteran, and is a retired Colonel in the Marine Corps Reserve. He can be contacted at Craighullinger@gmail.com or by phone at 309 634 5557.
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