Legislators Tweak Rules on Zoning Lawsuits

The task of a citizen or property-owner seeking to overturn a municipal zoning or land-use decision has become a little more complicated, or a little easier, depending how you look at it, as a result of two laws passed in the last three years by the Illinois legislature.

A week ago, August 15, Gov. Blagojevich signed Public Act 095-0843, which will take effect Jan, 1, 2009. The new law makes any decision of a municipality subject to "de novo" judicial review. "De novo" is Latin and means "anew," or "from the beginning," and what it means in law is that a court will look at the city decision with "fresh eyes." The court is not bound by the City's fact-finding and can make its own, different findings of fact.

The bill also terms a city's decision "legislative" regardless of whether it's made at the Council level or some lower administrative body such as the ZBA. Courts usually apply a "rational basis" test to legislation, meaning if the law holds water for almost any arguable reason, it stands up, barring some other constitutional question. Another standard of review is applied to administrative decisions: in those, the findings of fact of the administrative body are given deference by the court, so long as procedural safeguards were in place. Thus it's difficult to impossible to introduce new evidence when asking a court to review an administrative action.

Both the "rational basis" and "administrative review" standards are considered "deferential" standards, meaning that the courts more likely than not will OK what the governmental agency did.

By contrast a de novo standard is neutral or even "anti-deferential." By imposing a de novo standard, Illinois law now lets someone opposed to a zoning amendment, variance, or special use permit decision -- whether for or against -- take a fresh crack at it in the courts. However, the new law clarifies that this applies whether or not the decision was to grant the application, or one that turned it down. So the City could also introduce new evidence to support its decision.

Due process is supposed to apply at all levels of the "decision-making" and review process, which would seem to indicate a right to cross-examine witnesses.

The bill had the support of the American Planning Association, who said that it "rightly places the responsibility for zoning action back where it belongs – the municipalities and counties that are charged with implementing their zoning ordinances." I'm not so sure. It depends on whether local governments will now make their ground-level processes more open. If they don't, then more decisions could be challenged in court -- even if the odds are stiffer.

PA 095-0843 began life as SB2014, a Senate bill which amends a bill passed in 2006 which did the same thing, but which could be construed as applying only to decisions that adopt or grant an application.

The bill's author and principal sponsor, Sen. Susan Garrett (D., Lake Forest) states on the official state Senate website that the bill "further clarifies the nature of the rezoning process in a county, township, or municipality. It follows up on SB94 from the 94th General Assembly, which ensured the ability of government and citizens to participate in the hearing process in an open and collaborative way." Again, I'm not sure I agree. SB94 was a reaction to a court decision that seemed to impose a lot more due process procedures on cities. This bill is about the standard used in lawsuits. A lawsuit may be open, but it's hardly collaborative. The main change made by the "clarification" is to apply the standard to negative decisions (i.e., those that deny a zoning change) as well as those "adopting" one.

The question is whether the bill makes a lawsuit a more or less likely threat. If the former, the bill prods local governments to try and make everyone happy so that a lawsuit does not happen.

Obviously, there is not yet a lot of case law interpreting the new laws. I hope that both our city lawyers and the Council will take it into account, and strive to make a decision on the Tower, before the bill takes effect on January 1.