Appellate Court Finds No Private Right of Action for Non-Conforming Use

Author: Timothy J. Clifton

October 12, 2016

The Second District recently found that Section 11-13-25 of the Illinois Municipal Code does not create a private right of action for a landowner against a municipality.  In Conaghan v. City of Harvard, a City of Harvard resident sued the City, its Planning and Zoning Commission, and its City Council challenging the City Council’s ordinance denying the resident’s petition to allow for the continued use of his property as a multifamily residence.

In Conaghan, the resident rented out the property to tenants on two separate floors as a legal nonconforming use.  The property was rendered uninhabitable and the resident hired a contractor to fix the property.  Ultimately the permit lapsed and the property remained vacant for more than a year.  At that time, the City zoning officer found that the prior multifamily use had been discontinued as defined by the City of Harvard Ordinance (discontinuance of a non-conforming use for a period of 12 months) and that the property could only be used as a single family residence.  A petition to maintain the multifamily use was denied by the Planning and Zoning Commission.  Subsequently, the City Council passed an ordinance denying the request.

In the complaint, the resident alleges that the denial of the petition was improper because they had not discontinued the use nor shown a clear intent to do so.  The complaint was brought under Section 11-13-25 of the Illinois Municipal Code which reads:

(a) Any decision by the corporate authorities of any municipality … in regard to any petition or application for a special use, variance, rezoning, or other amendment to a zoning ordinance shall be subject to de novo judicial review as a legislative decision, regardless of whether the process in relation thereto is considered administrative for other purposes.  Any action seeking the judicial review of such a decision shall be commenced not later than 90 days after the date of the decision.

The Defendants moved to dismiss the complaint on the basis that Section 11-13-25 does not provide a private right of action to challenge a municipal zoning decision.

On appeal, the issue was whether Section 11-13-25 created a private right of action against a municipality.  The Section District held that Section 11-13-25 does not create a private right of action against a municipality by itself.  Rather, the Section “provides not for review de novo but for a hearing de novo in a case that is properly before the court on some other established basis.”  Essentially, the Section allows the parties to offer new and/or additional evidence than that which was offered at the earlier proceeding.  Put differently, Section 11-13-25 changes the rules for judicial review of zoning decisions (by allowing for new and/or additional evidence), but does not expand the availability of judicial review.

While reversing the Circuit Court’s judgment in favor of the resident, the Court noted that it is offering no opinion on whether the resident could have brought their action subject to something else.

We will keep you posted as to any future developments, in this case, moving forward.