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February 1, 2016

As many of you know in addition to concentrating my practice on Construction law and litigation I do a great deal of zoning work. Once the “Great Recession” hit this area of my practice dropped off considerably. Now that the economy has picked up, I find this area is getting busier and I have several current matters that I am handling. Not like the “Old Days” with large scale residential and commercial projects but smaller projects are being undertaken that need municipal entitlements.

Zoning and land development law is an interesting area but a minefield. Each municipality has its own Zoning Ordinance and Subdivision regulations. These need to be reviewed and understood with every case since each City or Village has its own rules and procedures. You need to not only know them but make sure you adhere to the required rules and procedures. A recent Illinois Appellate Court decision brought home that Zoning lawyers need to know and follow the rules precisely or suffer the consequences.

A developer’s large high rise project (13 stories, 155 feet tall) was approved by the City of Chicago and the neighboring property owners were not pleased. They filed a lawsuit and contended the project was oversized and out of character with the neighborhood. They also complained there was inadequate off street parking. The lawsuit requested that the rezoning be declared invalid because it would cause changes to their neighborhood that would diminish property values and was arbitrary and capricious and violated their right to substantive due process of law. Unfortunately for the neighbors none of these arguments were reached by the trial court.

There is a State Statute that requires when you are challenging a rezoning in municipalities of 500,000 or more in population that you give notice of your lawsuit to all property owners within 250 feet of the property that was rezoned. The Statue provides that a property owner who is entitled to notice who shows that his property will be substantially affected by the lawsuit can enter an appearance and if he does so he’ll have the same rights as a party to the suit.

Unfortunately for the neighbors their attorney did not precisely follow the notice requirements. When a zoning search was done several parcels were listed as “tax exempt” and no notice to these owners was given. In addition the common address of the property was used in determining owners within 250 feet. However, the common address only included two of three parcels. Accordingly, not all properties within 250 feet were picked up and several were not given the requisite notice of the lawsuit’s filing.

The Developer and City of Chicago sought dismissal of the lawsuit and the trial court granted their motion to dismiss. The dismissal was upheld on appeal. The neighbors argued that they had made a bona fide effort to comply with the Statute and that substantial compliance was achieved. The Appellate Court did not agree and held that strict compliance with the Statue was required. The neighbors also argued that proper notice had been given with regard to two out of the three parcels and their lawsuit should be allowed to proceed with regard to those parcels. Again the Appellate Court did not agree and held that the Statute does not refer to the common address of the property. The Statute refers to the location of the property involved and its property index number. In ruling against these neighbors the Appellate Court emphasized that substantial compliance is not enough since every property owner within 250 feet may either want to defend the zoning or assist the plaintiff in challenging it. The Appellate Court ruled that the purpose of the Statute cannot be met unless all property owners entitled to notice are given the required notice.

The moral of this story is to know the rules and precisely follow them. If a property is listed as tax exempt more has to be done to determine who the owner is and provide the requisite notice. In addition don’t rely on the common address but use the legal description. Unfortunately for the zoning lawyer involved in this case a lesson was learned but the hard way.