Appellate Court Says Illegal Use Becomes Legal Upon Annexation
In a break from long-established precedent, the First
District Appellate Court recently created a new category of legal
nonconforming uses in situations involving the annexation of illegal
uses.
In Giannakopoulos
v. Adams, No.11 CH 17516 (Oct. 29, 2018),
a municipality annexed property containing an excavation business that included
the storing and servicing of commercial vehicles and equipment. No
annexation agreement was entered into between the parties and the municipality
did not rezone the property or grant zoning relief when it annexed the property to the municipality. The use
was illegal at its inception in 1954 under the Cook County Zoning Code and
remained an illegal use thereafter, first under county zoning and, upon
annexation, under the municipality’s residential zoning designation.
In 2011, after being unsuccessful in getting the
municipality to enforce its zoning regulations, a next door neighbor brought
suit against the excavation business under the Adjoining Landowner Act, 65 ILCS 5/11-13-15, seeking to enjoin the operation of the illegal
use. The trial court ruled in favor of the plaintiff, holding that the municipality
had no authority as a non-home rule unit of government to legalize the
defendants’ use of their property unless it first complied with one of the
three procedures set forth in the zoning statutes (map amendment, variance, or
annexation agreement).
On appeal, the First District disagreed,
holding that because the illegal use was “established” prior to annexation, it
automatically became a legal nonconforming use “as-is” when the municipality
annexed the property. In other words, the appellate court found that annexation, in
and of itself, can convert an illegal use into a legal use without the annexing
authority needing to comply with state zoning laws.
A petition for leave to file an appeal with the Illinois Supreme Court has since been filed.
Post Authored by David Warner, Ancel Glink
Disclosure: Ancel Glink attorneys represented the
plaintiff before both the trial court and appellate court.
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