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How Can a Zoning Lawyer Help Me?
Whether you are a dealing with a zoning official as you seek to develop real property in Illinois or are seeking legal action with the help of a zoning attorney to enforce a zoning ordinance or code, it is imperative to have a proper understanding of the Illinois zoning laws. With proper planning and understanding of your development rights, the potential for legal issues diminishes greatly. Consulting a zoning attorney to learn exactly what your development rights are and how you can appeal a zoning decision that may potentially hinder your real property plans will aid you in the process and ensure you are fairly represented every step of the way. The zoning lawyers at Hirzel Law, PLC, are experienced in managing Illinois cases in matters such as land use, zoning issues, project planning, and obtaining municipal approval. Hirzel Law has worked alongside various developers, builders, and other property owners to assist them with:
- Appearing before a plan commission or plan department
- Appearing before a board for zoning approval or the zoning board of appeals
- Interpreting ordinances and zoning codes
- Pursuing a zoning variance
- Appealing zoning decisions to circuit courts
- Litigating zoning violations
What Zoning Law Applies in Illinois?
Zoning laws are generally prescribed at the local level through ordinances or other laws passed by cities, villages and counties. The Illinois Municipal Code, 65 ILCS 5/11-13-1, provides powers for these local municipalities to pass such laws to: (1) secure “adequate light, pure air, and safety from fire and other dangers”; (2) conserve the taxable value of land and buildings throughout the municipality; (3) lessen or avoid congestion in the public streets; (4) lessen or avoid “hazards to persons and damage to property resulting from the accumulation or runoff of storm or flood waters”; (4) promote “the public health, safety, comfort, morals, and welfare”; and (5) insure and facilitate the “preservation of sites, areas, and structures of historical, architectural and aesthetic importance.” The powers given include the ability to:
- Regulate and limit the height and bulk of buildings;
- Establish, regulate and limit setbacks;
- Regulate and limit the intensity of the use of lots and determine the area of open spaces;
- Classify, regulate and restrict the location of trades and industries and the buildings housing those industries;
- Divide the municipality into districts;
- Set conformance standards for buildings and structures;
- Prohibit uses, buildings and structures that are not compatible with the districts created;
- Prevent additions or alterations to buildings;
- Classify, regulate and restrict the use of property based on family relationships;
- Regulate or forbid activity that would hinder solar energy functioning;
- Require the creation and preservation of affordable housing; and
- Establish local standards for the exterior design of buildings.
It is important for all Illinois property owners to comply with the Illinois Municipal Code and local zoning code or ordinance in order to avoid enforcement action from a municipality, or some instances, an adjoining property owner. If a property owner does not comply with the the Illinois Municipal Code and/or local zoning ordinances enacted by a municipality, it is not uncommon for a property owner to become involved in litigation. Illinois law does provide that property owners within 1200 feet of a property that is violating a zoning ordinance or law does have the right to bring an action to enforce the ordinance, even if the local municipality has chosen not to enforce the ordinance itself:
In case any building or structure, including fixtures, is constructed, reconstructed, altered, repaired, converted, or maintained, or any building or structure, including fixtures, or land, is used in violation of an ordinance or ordinances adopted under Division 13, 31 or 31.1 of the Illinois Municipal Code, or of any ordinance or other regulation made under the authority conferred thereby, the proper local authorities of the municipality, or any owner or tenant of real property, within 1200 feet in any direction of the property on which the building or structure in question is located who shows that his property or person will be substantially affected by the alleged violation, in addition to other remedies, may institute any appropriate action or proceeding (1) to prevent the unlawful construction, reconstruction, alteration, repair, conversion, maintenance, or use, (2) to prevent the occupancy of the building, structure, or land, (3) to prevent any illegal act, conduct, business, or use in or about the premises, or (4) to restrain, correct, or abate the violation. When any such action is instituted by an owner or tenant, notice of such action shall be served upon the municipality at the time suit is begun, by serving a copy of the complaint on the chief executive officer of the municipality, no such action may be maintained until such notice has been given.
As such, both a municipality or a private property owner may have standing to enforce the Illinois Municipal Code or a local zoning ordinance. Accordingly, it is important to consult with a zoning attorney to avoid litigation if you are experiencing a zoning issue or the owner of a property in close proximity to a violating owner.
What is a Zoning Variance?
If a property owner wants to change a zoning classification for a property, they may request a zoning variance from the zoning board of appeals. The process of requesting a granted variance usually requires the property to submit the variance, in writing, to the zoning board of appeals. One common request for a zoning variance involves a use variance, which permits the property owner to use their property in a manner that may otherwise violate the zoning ordinance. Similarly, another type of request for a zoning variance is a dimensional variance, which would permit a property owner to construct something on their property that would otherwise violate the zoning ordinance. By way of example, if the zoning ordinance only permitted two story buildings, a property owner could request a variance to build a three story building. The Illinois Municipal Code outlines the manner in which a local municipality shall set a procedure for obtaining a variance (or variation) which is slightly different depending on the size of the municipality at issue.
A variance, however, must be granted by a vote of the members of the zoning board of appeals in the fashion of a public hearing. The party seeking a granted variance may appear personally or by their respected zoning attorney. In such instances when the property owner is seeking a granted variance by the zoning board of appeals, involving a qualified zoning attorney in such zoning litigation manners may increase the probability of a granted zoning variance by the zoning board of appeals.
How to Appeal a Decision of the Zoning Board of Appeals?
If a property owner is unsuccessful in making a request for a variance to the zoning board of appeals, the property owner may need to commence litigation. There is generally a procedure set up for an internal appeal within the municipality that needs to be followed before any litigation is filed. The Illinois Municipal Code states that after the administrative remedies are exhausted, an appeal can be had in accordance with Illinois’ Administrative Review Law, 735 ILCS 5/3-101 et. seq.
The circuit court shall review the record and has the following powers:
- To stay the decision of the administrative agency upon notice and good cause shown;
- To amend the record of proceedings for the administrative agency;
- To allow substitution of parties due to marriage, death, bankruptcy, assignment or other cause;
- To dismiss parties or correct misnomers;
- To affirm or reverse the decision of the administrative agency in whole or in part if a hearing was held by the administrative agency, to reverse and remand back to the agency for further proceedings; and
- To affirm, or partially affirm, the underlying decision and enter judgment for costs in favor of the administrative agency.
Consulting with a zoning attorney will ensure all requirements are met before appealing the decision of the zoning board of appeals and to confirm that all administrative remedies are exhausted. Accordingly, if a zoning board of appeals has denied a request for a zoning variance, a zoning attorney should be consulted to determine if there are grounds to appeal to circuit court.
Obtain Legal Assistance with Land Use and Zoning from an Illinois Real Estate Attorney
Land use and zoning can be difficult to understand but having an experienced zoning lawyer can help. At Hirzel Law, PLC, our Illinois zoning lawyers can help you with any disputes that may arise. We stand by our clients, offering the highest quality legal representation and promptly responding to our clients’ needs. Contact Hirzel Law online or call (312) 646-2770 to see how our Illinois construction lawyers can represent you.