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A Primer On Litigating a Zoning Case
by Michael D’Orsi
This article is a practical guide for those contemplating a challenge to a municipal zoning ordinance as applied to a particular parcel of property.
If a municipality’s zoning ordinance has prevented your client from developing his or her property, a lawsuit challenging the municipality’s zoning ordinance as applied to the property may provide a viable remedy. Illinois cases confirm that courts are willing to overturn a municipality’s ordinance when the plaintiff can provide a compelling argument for doing so. This article describes what to expect during the course of a zoning lawsuit and what needs to be proved.
Before the Lawsuit: Preliminary Requirements
Before a lawsuit challenging a municipality’s zoning ordinance can be brought before the Illinois courts, several prerequisites must be satisfied.
Have local remedies been pursued? An owner or developer contemplating a judicial zoning challenge must first provide local authorities with the opportunity to consider and rule on the use he or she is proposing for the property. According to this “exhaustion” doctrine, the petitioner must pursue the municipality’s procedures for relief -- i.e. “exhaust” his or her local remedies -- before he or she is entitled to bring the case to the courts.
There are at least three zoning-related remedies available in most municipalities to address land development issues: (i) a variation, (ii) a special use permit, and (iii) an amendment to the zoning ordinance (amending the ordinance’s text or amending the official map ). But even where a municipality offers all three of these potential remedies, only one needs to be “exhausted,” so long as it is a proper remedy for the land owner’s specific problem.
Municipal consideration of any of these requests usually requires public notice and a public hearing. A public hearing usually takes place before an administrative body of the municipality (such as a zoning board of appeals or planning commission), and is less formal than a court proceeding. At the hearing, the owner or developer has the right to appear and present evidence through witnesses. The owner or developer may also be able to cross-examine witnesses offered by any opposing parties. After the hearing, the administrative body will weigh all of the evidence presented and, depending on its authority, decide either (i) what recommendation to make, or (ii) what final municipal decision to render. Multiple hearings, concluding with evidence presented in front of the governing body (such as the town board or city council), may be necessary depending on the laws of the particular municipality.
Who can sue? In order to initiate a challenge to a municipality’s zoning ordinance in court, the challenger must also have “standing,” i.e., a sufficient stake in the controversy to merit judicial resolution. In Illinois, this means that the challenger must have a possessory interest entitling it to use of the property.
A land owner whose property is directly affected by a zoning ordinance clearly has “standing” to question that zoning ordinance’s validity as applied to his or her land. Developers who are not also land-owners may not have such “standing.” For example, while a developer with only an option to purchase property, contingent on the property’s re-zoning, may have the right to present an “exhaustion” petition to municipal officials, he or she does not have a sufficient possessory interest in the land to initiate a legal challenge to the zoning ordinance. On the other hand, a developer with an option contract who can also introduce evidence of his or her agreement to purchase - e.g. evidence of payment against the purchase price, payment of taxes and insurance on the property, and the right to at least a partial use of the property - may have an “equitable” ownership in the property sufficient for him or her to file suit.
Bringing the Lawsuit: Characteristics of the Action
Once the attorney has confirmed that the owner or developer has standing and has exhausted his or her local remedies, it is appropriate to consider court action.
The proper vehicle to challenge a municipality’s zoning ordinance as applied to a parcel of land is an “independent action” for declaratory judgment tried in front of a judge without a jury. The plaintiff must prove by “clear and convincing evidence” that the ordinance, as applied to his or her property, is “arbitrary, unreasonable, and not substantially related to the public health, safety or welfare.” In Chicago, the plaintiff must provide advance written notice to surrounding property owners of his or her intent to bring a lawsuit before actually filing the suit.
What is an Independent Action? Where a municipality’s town board or city council renders the final negative decision in the "exhaustion" hearings, the subsequent judicial proceeding is an “independent action.” In an “independent action,” the trial court does not consider testimony introduced at the “exhaustion” hearings to render its decision. Only evidence that is introduced and admitted at the trial is considered.
What Declaratory Relief is Sought? In a challenge to a municipal zoning ordinance, the plaintiff asks the court to find the zoning ordinance invalid as applied to the plaintiff’s property. This request for declaratory judgment is usually coupled with a request for an injunction. The injunction would prevent the municipality from enforcing its zoning ordinance against the plaintiff’s proposed development of the property.
What is “Clear and Convincing Evidence?” There is no precise definition of “clear and convincing evidence.” Notwithstanding, “clear and convincing evidence” is a more exacting standard than the “preponderance of the evidence” required in many civil trials, but less demanding than evidence “beyond a reasonable doubt,” which is necessary for conviction in a criminal proceeding.
At trial, the plaintiff must establish two points by “clear and convincing evidence.” First, he or she must establish that the existing zoning ordinance is unreasonable, i.e., that the public health, safety and welfare do not justify the restriction on his or her property. Second, he or she must establish that his or her proposed use of the property is reasonable.
What Sort of Advance Notice is Required? Except for Chicago, a plaintiff is not required to issue notice of his or her intent to bring a declaratory judgment action challenging a municipal zoning ordinance. In Chicago, however, the plaintiff must serve written notice on all property owners within 250 feet of his or her property of his or her intention to bring such a lawsuit. The notice must contain the address of the property, a statement of the relief the plaintiff seeks, and the name of the property’s owner. The notice must be sent no more than 30 days before the plaintiff actually files suit. The plaintiff must also provide the clerk of the court with a list of the surrounding property owners and a written certificate that the notice was served. A property owner entitled to notice who can also show that his or her property will be substantially affected by the outcome of the lawsuit can enter an appearance in the lawsuit and will be treated like a party.
What if the Owner Purchased the Property as Currently Zoned? The fact that a plaintiff purchased property knowing that the zoning ordinance would prevent his or her proposed use does not preclude his or her challenge to the ordinance. Although such a plaintiff usually is not in as favorable a position to challenge the zoning ordinance as is a purchaser who bought before a zoning change, he or she can still bring his or her challenge and prevail. The fact that neighbors may have purchased their property in reliance on the existing zoning of the plaintiff’s property also does not defeat the plaintiff’s challenge. The neighbors do not have an inherent right to the existing zoning classification.
During the Lawsuit: What Must be Proved
Once the lawsuit has been filed and judicial proceedings are underway, the attorney and his or her client must focus on presenting the necessary proof at trial.
First, the plaintiff must present evidence about his or her proposed development on the property. The plaintiff, however, need not introduce evidence of a specific “plan.” In fact, Illinois courts have permitted relief based on general descriptions of the plaintiff’s proposed use.
The plaintiff must then present evidence regarding the invalidity of the zoning ordinance as applied to the particular piece of property and the reasonableness of the plaintiff’s proposed use. There are eight primary factors that Illinois courts consider when assessing this evidence. No single factor is determinative. Courts look at the evidence introduced on all of the factors together. The eight factors are as follows:
The Existing Uses and Zoning of Nearby Property. Evidence as to the use and zoning of the land surrounding the property is probably the most important factor in a zoning case. The court must understand the character of nearby areas’ uses and zoning and ask itself whether the existing use on the property and the plaintiff’s proposed use on the property are compatible with this character. To make this determination, the court considers whether the uses of the nearby property are “uniform and established,” and whether there has been a changing trend in the development of the zoned area.
The Extent to Which Property Values are Diminished by the Particular Zoning Restrictions. As a second factor, the court must ask itself whether the zoning restriction at issue diminishes the property’s value, and, if so, whether the plaintiff’s economic loss is justified by a gain to the public welfare. The plaintiff is not required to show that his or her land is totally unsuitable for the use to which it is restricted. He or she need only demonstrate that the restriction substantially decreases the value of the land without a corresponding public benefit. If the plaintiff can introduce evidence that his or her proposed use is the “highest and best use” of the property, this should also help the court assess the zoning ordinance’s validity, even though “highest and best use” is not itself determinative.
The Extent to which Destruction of Property Values of Plaintiff Promotes the Health, Safety, Morals or General Welfare of the Public. This factor is broad in scope. The court must weigh the public benefits of the existing zoning restriction against the private burden of the restriction to the plaintiff. In considering the public benefit of the restriction, the court will look at several variables. How does the existing zoning restriction affect the community’s schools? The community’s tax base? Population density? Traffic? Storm water detention and control? Aesthetic concerns? None of these variables alone is determinative.
The Relative Gain to the Public as Compared to the Hardship Imposed Upon the Individual Property Owner. This factor is often considered in conjunction with the previous factor. It is a “balancing test.” A plaintiff who is able to demonstrate that the gain to the public from enforcement of the zoning ordinance is small while his or her own financial disadvantage from enforcement of the ordinance is significant has a strong challenge to the ordinance. This challenge is enhanced where the plaintiff’s proposed use does not have a substantial adverse impact on the surrounding properties’ values.
The Suitability of the Subject Property for the Zoned Purposes. Whether the subject property is "suitable" for a particular use is determined primarily by its physical characteristics, in particular, its size and shape, accessibility, topography, trees and landscape, and soil conditions. Other environmental conditions, such as the existence of wetlands or flood plains, should also be considered. All of these characteristics have an impact on the economic viability of the proposed development. The court must take these details into account when it asks itself how suitable the property is for the uses to which it is currently restricted and for the uses proposed by the plaintiff.
The Length of Time the Property has been Vacant as Zoned in the Context of Land Development in the Vicinity of the Subject Property. A primary question under this factor is whether the property has remained vacant despite attempts to market it as currently zoned. The fact that a piece of land stands vacant for a significant period of time despite attempts to sell it as zoned at a fair price is a compelling indication that the zoning ordinance is not reasonable.
There is no defined period of time after which vacancy despite attempts to market suddenly becomes significant. In one case, the Illinois Supreme Court held that a zoning ordinance was invalid as applied to property despite the fact that the property, although vacant for twenty-five years, had only been advertised for sale for the year prior to the suit.
The Care with which the Community has Undertaken to Plan its Land Use Development. Evidence that a municipality has thoughtfully considered its future development supports the validity of its zoning restrictions. To evaluate this factor, courts ask whether the municipality has a unified framework underlying its zoning restrictions, often in the form of a comprehensive plan or official map.
Even if a municipality has a comprehensive plan, it may not carry much weight in court. Cases show that a comprehensive plan does not tend to be a predominant factor in the overall analysis. This is particularly so where the plan has not been recently updated to reflect current conditions, or where the municipality has consistently deviated from it.
The Evidence or Lack of Evidence of Community Need for the Proposed Use. The primary question here is whether there is a need for the plaintiff’s proposed use on the particular property at issue. The plaintiff can demonstrate "need" through a market analysis of demand. Even if the analysis is not conclusive, absence of demand for a use is not sufficient on its own to justify denial of the plaintiff’s requested relief.
At Trial: Presenting the Evidence
Zoning trials rely on testimony from a number of witnesses, many of them experts in fields related to land use. To present the evidence most effectively, the attorney should use a range of visual exhibits to illustrate the facts.
Usually, it is important for the court to understand the history of the property. In such a case, the owner should take the stand to tell the property’s “story.” The owner’s testimony can also include a description of his or her proposed use for the property.
A land planner/land use expert will often be an important witness at trial. The land planner can testify about the use and zoning of the property and the areas immediately surrounding it. He or she can also testify whether the plaintiff’s proposed development is consistent with the uses and zoning of the nearby property as well as with the trend of development in the municipality.
Visual exhibits can be essential to the land planner’s testimony. An aerial photograph of the property and the surrounding areas, detailing the various uses and zoning, as well as eye-level photographs of specific portions of the property, its topography, landscape, accessibility and adjacent uses, are extremely useful. A video of the property and adjacent uses can also be a powerful tool to present the plaintiff’s case.
Real estate brokers who listed the property for sale as zoned can testify about their marketing efforts and why they were unable to sell the property. Such testimony should include marketing materials and advertisements when possible. The real estate broker may also testify regarding the demand for the plaintiff’s proposed use of the land.
To back up the brokers’ claims, the attorney may wish to employ a market expert to testify at trial. Such an expert can assess the fiscal impact to the municipality from proposed development of the property. He or she can also testify regarding the demand for various types of development on the parcel.
A civil engineer can testify to the property’s physical characteristics and the economic feasibility of different kinds of development. The civil engineer can also analyze the probable cost of site grading as well as the probable cost of public improvements such as road, sanitary sewer, water main, storm sewer and street lights.
Testimony as to a property’s highest and best use often comes from a real estate appraiser. Appraisers can also testify to the effect of the proposed development on the value of the property at issue and surrounding properties, and the trend of development within a municipality.
Prospective developers of the property frequently testify in zoning litigation. Their testimony can illustrate the viability of the owner’s proposed development. Depending on the developer’s familiarity and experience with the municipality at issue, the developer may also be able to testify about the municipality’s need for the plaintiff’s proposed development on the property and the effect of such a development on the health, safety and welfare of the community.
Finally, in some cases it is useful to engage a traffic consultant to compare the traffic impact of the plaintiff’s proposed development with the traffic impact of the development of the property as currently zoned.
This is just a sampling of the witnesses the attorney should consider in litigating a zoning matter.
The Judgment: Securing the Desired Relief
If, after considering the evidence, the court determines that the zoning ordinance as applied to the property is invalid, then it must examine the reasonableness of the plaintiff’s proposed use and frame a decree accordingly. In framing its decree, the court cannot simply invalidate the ordinance and return the matter to the legislative body for re-zoning. Moreover, it is not within the court’s power to zone or re-zone property. Instead, the court must frame its decree with respect to the proposed use presented to it at trial.
Other treatises and articles have discussed the issues described above in a detailed fashion, including "Illinois Zoning, Eminent Domain and Land Use Manual" by Thomas Geselbrecht, “Judicial Review” by Ronald Cope as contained in ICLE’s Illinois Land Use Law, and “Zoning” by Susan Marie Connor as contained in ICLE’s Illinois Municipal Law. The simple lesson to be learned is that the municipality does not have to have the last word on an owner or developer’s use of his or her property. Although the circumstances under which a challenge is appropriate are limited, when these circumstances are present, you and your client can challenge the municipality’s zoning ordinance as applied to the client’s property, and win.
Michael D’Orsi is an associate at Miller Shakman & Beem in Chicago. His commercial litigation practice includes land use and zoning law as well as legal malpractice defense. Mr. D’Orsi graduated summa cum laude from Yale University in 1991 and magna cum laude from Harvard Law School in 1994.
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