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Tuesday, March 17, 2015

Pre-Suit Notice Mandatory in Zoning Lawsuit

In Illinois, there are zoning statutes that apply in Chicago, and zoning statutes that apply everywhere else in the state.  In Scott v. Chicago, 2015 IL App (1st) 140570, the First District Appellate Court dealt with the former in a case interpreting the pre-suit notice requirement of Section 11-13-8 of the Illinois Municipal Code.  Section 11-13-8 of the Illinois Municipal Code states that in municipalities of 500,000 or more population (i.e., Chicago), a plaintiff seeking declaratory relief to invalidate a zoning decision must send written notice to all property owners within 250 feet of the property that is the subject of a zoning decision not more than 30 days before filing a lawsuit.

This case involved a challenge to the City's rezoning approval of property to allow the development of a 13-story mixed use building.  Neighboring property owners filed suit against the City and developer, asking the court to declare the rezoning invalid as an arbitrary and capricious decision in violation of the property owners' substantive due process rights. The City and developer filed a motion to dismiss the plaintiffs lawsuit based on the plaintiffs' failure to serve written notice to all property owners within 250 feet of the rezoned property, as required by Section 11-13-8. The trial court granted the motion to dismiss, and the plaintiffs appealed.

The appellate court reviewed the requirements of Section 11-13-8.  First, the court acknowledged that the pre-suit notice requirement only applies in Chicago.  Second, the court noted that the pre-suit notice requirement is mandatory.  Third, the court found that the plaintiffs failed to strictly comply with the pre-suit notice requirement because they did not serve notice on all property owners within 250 feet of the rezoned property. Finally, the court rejected the plaintiffs' argument that it "substantially complied" with the pre-suit notice requirement, stating that it was "not persuaded that the legislature condoned less than strict compliance with the notice statutes." Because the plaintiffs failed to serve 26 property owners, they did not comply with the mandatory notice requirements, warranting dismissal of their complaint.

Post Authored by Julie Tappendorf


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