Jun 14, 2011

Zoning Administration Handbook

Excellent Handbook on Zoning Administration




Click to Read the Handbook
http://www.ancelglink.com/publications/ZoningAdministration.pdf


Excerpts from the Handbook on Zoning:

"4. PRELIMINARY CONSIDERATIONS 
Before we begin examining the particular zoning powers of municipalities, we must first deal with several important issues that set the stage for municipalities to exercise their zoning powers.  


A.  Presumption of Validity and the LaSalle Factors. 


Illinois courts, and for that matter, federal courts, more often than not hold that municipal regulations, including land use regulations, are valid. The burden — with rare exception — is on the person attacking the regulation to prove that it is not a valid exercise of a municipality’s legislative powers. Sometimes a strong attack from a landowner or developer gets matched up with a weak defense by the community. These are generally the cases that are lost.

However, as you may know from personal experience, zoning codes are often the subject of litigation on the validity of their application to individual parcels. Illinois courts have established a set of factors to be considered when reaching zoning decisions, collectively known as the LaSalle Factors (named after the original case where the first six factors were first enunciated). Illinois courts examine and attempt to balance these factors in order to determine whether the zoning in question is fair to the owner of the subject property, owners of surrounding properties, and the public.

However, no single factor is controlling, and each case must be decided on its own facts, although Illinois courts place substantial importance on the first factor.




  The LaSalle Factors are as follows: 


1. The existing uses and zoning of nearby property: 


In deciding this factor, courts will examine whether the subject property is zoned in conformity with surrounding existing uses and whether those uses are uniform and established.
Defining what is a “nearby” property can be result in substantially different boundaries, depending on what basis is used, such as a specified distance versus the road system demarcation. However, the mere presence of buildings or other areas being put to the same use as the person challenging the validity seeks for his property, is wholly insufficient to show that the ordinance is invalid or discriminatory.



2. The extent to which property values are diminished: 
                                                       
The extent to which courts permit zoning regulations to diminish property value varies depending on the purposes served by the regulation. The loss in value to the plaintiff must be considered in relation to the public welfare.

If the gain to the public is small when compared with the hardship imposed by the restriction upon the individual property owner, then no valid basis for zoning regulation exists.

In addition, courts have stated that a property owner is not constitutionally entitled to develop property to its “highest and best use” as real estate professionals typically use that term. 
Moreover, if a purchaser of property knows of the existing zoning restrictions at the time of purchase, the knowledge itself is relevant to the court’s decision regarding the hardship caused by the restriction.

3. The extent to which the destruction of property value of the plaintiff promotes the health, safety, morals or general welfare of the public. 


4. The relative gain to the public as opposed to the hardship imposed upon the individual property owner.  The third and fourth factor are usually considered together.


  As stated earlier, if the gain to the public welfare exceeds the hardship to the individual property owner, the zoning regulation will likely be deemed valid.
   
5. The suitability of the subject property for the zoned purposes: 


 Alternative development plans proposed by the landowner may be a factor in determining whether the proposed use is an appropriate use of the property.


  The law does not require that the subject property be totally unsuitable for use as it zoned in order for the zoning restriction to be invalid.  If the property cannot be reasonably developed as zoned and if the zoning restriction is unrelated to the public welfare, the restriction is not constitutional.


6. The length of time the property has been vacant as zoned considered in the context of land development in the area: 


In deciding this factor, courts look to whether the subject is property is vacant or unsaleable because of the zoning ordinance. When, but for the zoning classification, the property probably would have developed, the reasonableness of the zoning classification is thereby called into question. In the Second District Appellate Court, it was held that property owners had to establish that the property was vacant or unsaleable because of the zoning restriction in order for this factor even to be considered.   


7. The care with which a community has undertaken to plan its land-use development: 

In order for a zoning regulation to not be found arbitrary, it must be based on careful and thorough planning. Courts therefore look to whether there is a comprehensive zoning plan which reasonably regulates and restricts land uses for the health, safety and welfare of the public in order to determine whether a zoning change is in harmony with the orderly use of the property.
  

The zoning of small areas that is incompatible with a zoning pattern that is compact and uniform is consistently invalidated.



8. Community need for the use proposed by the plaintiff:  


 Since this factor pertains to a use at the proposed location, courts only need consider the need for the proposed use in the individual landowner’s neighborhood.

While lack of community need for the use is relevant to the relative gain to the public, this factor is not in itself a conclusive or determinative factor where (1) there is no uniformity of uses in the area and the proposed use would have no adverse effect on adjacent properties; (2) denial of the proposed use would in no way benefit the public health, safety or morals; and (3) there is substantial economic loss to the landowner resulting from such denial.

When the community need is not compelling, due to other available properties or operations, the courts will only assign minimal or no weight to this factor."






LaSalle National Bank of Chicago v. County of Cook, 12 Ill. 2d 40, 46-47, 145 N.E.2d 65, 69 (1957),

and 


Sinclair Pipe Line Company v. Village of Richton Park, 19 Ill. 2d 370, 378, 167 N.E.2d 406, 411 (1960)