School Boards Forced to Submit to Local Zoning Schemes in Building Athletic Facilities

—by Samuel Cohen

Sources: John Wolohan & Samuel Cohen, Zoning Regulations Dismantle School’s Bleachers, Athletic Bus., Nov. 2016, at 22; Jeff Gruba v. Community High School District No. 1, 40 N.E.3d 1 (Ill. 2015)

Abstract: On September 24, 2015, the Supreme Court of Illinois ruled that State School Boards are subject to municipal zoning regulation in building athletic facilities, relying on the provisions of the State School Code in determining as much.

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Facts and Procedural History

In 2013, the Board of Education of Community High School District No. 155 (the “Board”) determined that the bleachers at Crystal Lake South football stadium were not up to structural standards, and so decided that new bleachers should be installed. The new bleachers would “be larger, higher, and closer to the property line than the existing bleachers abutting the residences.” The Board sought project approval from the McHenry County Regional Superintendent of Schools, Leslie Schermerhorm, who approved the plans and issued a building permit. The Board did nothing to notify the city of Crystal Lake (the “City”) prior to beginning the construction of the bleachers.

At some point, the City learned of the project and informed the Board that it was not in compliance with the Crystal Lake Unified Development Ordinance because the Board failed to obtain a special-use permit, a storm water permit, and zoning variances, all of which were required under the ordinance. The Board ignored the order from the City to put the project on hold until proper permits were obtained. The Board’s cited reason for not complying with the order was that a “school district’s construction on property used for school purposes is not subject to the zoning authority of the local municipality.”

The essential issue in the suit, brought by three homeowners who own property adjacent to the school, is whether or not the Board’s reason for not complying with the City’s order constitutes a valid excuse. The parties filed cross motions for summary judgment on the issue and the Circuit Court of McHenry County awarded summary judgment in favor of the City. This ruling was affirmed on first appeal and was then appealed to the State’s highest court.

The court determined that since there were cross motions for summary judgment there was no issue of fact and only a question of law was involved. The court stated that its primary goal in statutory interpretation is to give effect to the legislature’s intent. The Board asserted that there were multiple alternative statutory interpretations that justified their exemption from the municipal zoning ordinance at issue.

Issues

            The first theory that the Board put forward for why it was exempt from municipal zoning regulations was that the General Assembly of the state has exempted certain entities from municipal zoning regulations and that the Board fell into this category. However, the court found no statute limiting a municipality from regulating zoning or storm water management on school property. Further, the court found that since the City was a home rule municipality (a municipality with the power to perform any function not expressly granted to the state or federal government as long as it is not in violation of any state or federal law), it had even greater authority to impose its zoning ordinances on the Board since no federal or state legislation preempted it.

The Board’s argument in the absence of a statutory provision that expressly exempts the school is that subjecting the schools to municipality zoning ordinances will “unduly interfere with the General Assembly’s constitutional authority to regulate the public education system.” The court found that this to be an unfounded claim and that, in fact, the School Code approved by the General Assembly supported a contention that the General Assembly intended to make schools subject to municipal zoning laws. This was based on section 10-22.13a of the School Code, which authorizes a school board “[t]o seek zoning variations, or special uses for property held or controlled by the school district.” 105 ILCS 5/10-22.13a (West 2012). Looking at the language of the provision, the court held that it would be illogical to conclude, as the Board contended, that the provision creates a permissive power to make such requests and that this power does not create an obligation on the Board to seek such an approval. The court found the most natural reading of section 10-22-13a conferred a power to request zoning variances because schools fall within local zoning regulations and therefore need to be able to request variances to be in compliance.

The Board alternatively contended that the provision of section 10-22-13a only applied to school district property not used for school purposes. The court rejected this approach as not part of a plain language reading of the provision. It also looked at a different case, Wilmette Park District v. Wight & Co., 490 N.E.2d 1282 (Ill. 1986), in which a parks department made a similar argument to the Board and the court rejected that argument.

The final theory for the Board’s contention that it is exempt from municipal zoning schemes is that the Health/Life Safety Code for Public Schools (Health/Life Safety Code), created under the School Code passed by the General Assembly, “limits municipalities’ review and inspection of school construction plans[.]” The provision of the Health/Life Safety Code that the Board cited as a basis for its exemption said in pertinent part that municipalities were authorized to register with the regional superintendent of schools to receive notice of school construction plans and then object in writing to the plans. The Board contends that because the City did not register to be notified it is estopped from objecting to the project.

The court also rejected this theory, finding that the Health/Life Safety Code is a building code, which has different goals and purposes than local zoning regulations. This is because the concerns of zoning ordinances (size, height, set back from property lines) are not addressed in building codes. Therefore, in the absence of evidence from the building code that it intended to address zoning issues, the court rejected that the Health/Life Safety Code preempted or limited the City’s authority over land use within its jurisdiction. Since none of the theories put forward by the Board for their exemption from municipal zoning schemes were accepted by the court, the judgment for the City was affirmed.

People v. On Sight Mobile Opticians

This appeal addresses the severability of a municipal ordinance section and the constitutionality of a content-neutral restriction on the posting of signs on public property. The defendant, On Sight Mobile Opticians, had placed a sign advertising its business on public property. The Town of Brookhaven’s investigator filed informations charging the defendant with violation a section of the Town Code prohibiting the posting of signs on public property. The defendant moved for dismissal on the ground that the Town Code chapter at issue was unconstitutional.

The district court denied the motion, holding that the chapter was constitutional. The defendant pleaded guilty and then appealed to the appellate term. The appellate term found the section itself constitutional, but it held that the entire chapter “unconstitutionally favor[ed] commercial speech over noncommercial speech.” It then found that the unconstitutional parts of that chapter could not be severed and as a result reversed the convictions, dismissed the informations, and ordered any fines returned.

Here, the Court held that the code section at issue dealt only with the posting of signs on public property and thus had a discrete, independent legislative purpose. It could therefore be severed from the rest of the chapter in which it appeared.

Considering the constitutionality of the code section in isolation from the rest of the chapter, the Court found it to be a ban that affected both commercial and non-commercial signs without regard to content. It also found the section to “serve[ ] the Town’s valid interest in traffic safety and aesthetics.” Since it was content-neutral and served a valid government interest, the Court held the section constitutional and reversed the order of the appellate term.

2 N.Y.S.3d 406 (N.Y. 2014)

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Jones v. Town of Carroll

This appeal addressed the application of Town laws to Plaintiff’s land. In 1984, Plaintiff, Carol Jones (“Jones”), obtained a special use permit from Defendant, the Town of Carroll, allowing her to develop a construction and demolition landfill (“C & D landfill”) on her land. The Town’s Local Law No. I of 2005 (“2005 Law”) bars zoning ordinances being given retroactive effect against vested property rights. Town Local Law No. One of 2007 (“2007 Law”) is a health and safety regulation, prohibiting the construction of a solid waste management facility within the Town. The Court of Appeals found the 2007 Law not to be a retroactive zoning ordinance.

In Supreme Court, Plaintiff moved for summary judgment, alleging that the 2007 Law was arbitrary and capricious and that the law took her property without just compensation. Defendant responded that collateral estoppel applied, alleging that Jones I, also brought by Plaintiff against Defendant, was an action regarding the same issue. The Appellate Court reviewed whether collateral estoppel was appropriate.

In Jones I, the Court of Appeals determined whether the 2005 Law unconstitutionally deprived Jones of legal use of her land for a C & D landfill. It was held that the Law did not apply to the plaintiff since she had a vested right to use the land as a landfill before the zoning law was enacted. The Court of Appeals concluded that since the case from which this appeal stems, Jones II, involves the 2007 Law and not the 2005 Law, a different piece of legislation is at issue than in Jones I (57 A.D.3d 1379 (4th Dep’t 2008); 32 A.D.3d 1216 (4th Dep’t 2006). Therefore, the doctrine of collateral estoppel did not apply.

Addressing the merits of Plaintiff’s claim, the Supreme Court denied Plaintiff’s motion for summary judgment under the assertion that the 2007 Law was arbitrary and capricious. Plaintiff was found to have failed to demonstrate to the court that the Defendant’s actions were without legal justification. Plaintiff’s allegation that the 2007 Law took her property without just compensation was also rejected by the court, as she failed to show that a regulatory taking resulted from the law. It was noted that even if the 2007 Law had resulted in such a taking, declaring the law invalid, as Plaintiff sought, would not have been appropriate relief. Instead, a hearing to determine just compensation for the taking would have been proper.

The Supreme Court did not address Plaintiffs allegation that the 2007 Law was enacted in violation of the State Environmental Quality Review Act (“SEQRA”) after finding the law void as applied to Plaintiff. Because the issue was not addressed, the Appellate Court remanded the issue.

996 N.Y.S.2d 804 (4th Dep’t. 2014)

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4th Department: Burns v. Carballada

Deborah Burns and Bruce Henry were found guilty of violating a Rochester City Code section which held that an owner of property must have a Certificate of Occupancy (“CO”), which must be renewed every six years.  The City relied on the part of the Code that states that the renewal must be made within a period of ninety days prior to expiration of the current CO.  Petitioners’ CO was invalid.

The case had previously been before the appellate division, whereupon the petitioners argued that the Municipal Code Violations Bureau (“Bureau”) did not provide sufficient evidence of the offense.  The court previously held that there was not a substantial evidence issue and remitted.  Upon remittal, the Supreme Court of Monroe County ruled in favor of petitioners, stating that the determinations by the Bureau were arbitrary, capricious, and facially insufficient.  Carballada, the respondent, appealed the judgment in his capacity as the Commissioner of Neighborhood and Business Development of the City of Rochester.

On the facial insufficiency of the Bureau’s determination, the court held that the lower court erred because the issue was never raised in the current petition.  In fact, the petitioners agreed with the respondents that the tickets were facially sufficient.

Therefore, the issue raised on appeal was whether the City’s CO inspection-and-warrant system was unconstitutional as applied.  The City had previously considered that many individuals may not cooperate in the inspection process.  Therefore, a new procedure was established to issue judicial warrants to inspect the premises with no requirement of consent when a warrant is issued.

Previously, the court had rejected a facial constitutional claim for this established procedure, and here, rejected the as applied claim.  The court reasoned that the petitioners did not show that they were actually injured because there was no evidence that they ever applied for a CO and subsequently refused to consent to the inspection.  Further, the court held that consent is not a requirement of the procedure.  An inspection can take place with either consent or a warrant.  Therefore, even had they not consented, the procedure would still have been lawful if a warrant was issued.

The dissent argued that the majority looked at the case in an overly restrictive manner, and that the procedure was unconstitutional because it was performed in an arbitrary and capricious manner.  The dissent agreed with the supreme court’s holding that the Bureau’s action was without a sound basis and was irrational because the Code section that it relied upon was not actually violated.

101 A.D.3d 1610, 956 N.Y.S.2d 357 (4th Dep’t 2012)

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Survey: 2011 Zoning and Land Use

Terry Rice provides an overview of major developments in the areas of zoning enactments, zoning Boards of Appeal, site plan review, and special permits in the state of New York between July 1, 2010 and June 30, 2011.

Click here for full PDF.

Terry Rice is a Partner at Rice & Amon in Suffern, New York.  Mr. Rice is also the author of McKinney’s Practice Commentaries, Town Law, Village Law (West Group).

Survey: 2010 Zoning and Land Use

Terry Rice provides an overview of major developments in the areas of zoning enactments, zoning Boards of Appeal, enforcement, and standing in the state of New York between July 1, 2009 and June 30, 2010.

Click here for full PDF.

Terry Rice is a Partner at Rice & Amon in Suffern, New York.  Mr. Rice is also the author of McKinney’s Practice Commentaries, Town Law, Village Law (West Group).