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Wednesday, September 7, 2016

65 ILCS 5/11-13-25 Does Not Provide Independent Cause of Action for Zoning Challenge

Many municipalities have an "abandonment rule" for legal nonconforming uses. A legal nonconforming use is one that was allowed by a community's zoning regulations at the time it was established, but becomes nonconforming because of a zoning change (text or map amendment). A legal nonconforming use is generally allowed to continue, unless it is substantively modified, expanded, or abandoned for a period of time. The abandonment rule is the subject of a recent appellate court case.  Conaghan v. City of Harvard, 2016 IL App (2d) 151034.

Conaghan owned a home in Harvard, Illinois that he rented out to separate tenants. The rental use was a legal nonconforming use. When the home was damaged, Conaghan hired a contractor to rehabilitate the property, but the permit lapsed and the property remained vacant for more than a year. The City notified Conaghan that his previous nonconforming use was not longer permitted because it had been abandoned for more than 12 months, per the City's zoning code. Conaghan applied for a special use permit to allow the rental use, but the City denied the application and Conaghan sued under 65 ILCS 5/11-13-25.

The City filed a motion to dismiss the complaint, arguing that 65 ILCS 5/11-13-25 does not provide an individual with an independent cause of action to challenge a zoning decision. The City argued that 65 ILCS 5/11-13-25 was enacted in response to the Illinois Supreme Court's decision in Klaeren v. Village of Lisle, which had held that a municipality's decision on a special use permit is quasi-judicial rather than legislative. 65 ILCS 5/11-13-25 clarified that challenges to all zoning decisions (including special uses) were to be reviewed under legislative standards.

The appellate court ruled in favor of the City, and dismissed Conaghan's challenge to the City's denial of its special use request. The court reviewed a number of cases interpreting 65 ILCS 5/11-13-25, and concluded that this statute did not provide a plaintiff with a cause of action, but simply clarified the standard of review. Since Conaghan did not bring any other challenge (i.e., declaratory relief, constitutional claims) and relied solely on 65 ILCS 5/11-13-25 as his basis for the lawsuit against the City, his case was dismissed.  

Post Authored by Julie Tappendorf


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