Publications

What to do when the zoning changes

Published August 30, 2003 as
Get insight on how the zoning hearing process operates

All right…you are peacefully minding your own business, looking out the window, and a bulldozer drives up and starts tearing up the park in front of your house. Upon further research you find out they are constructing a horse-rendering plant. How did this happen?

Sound far fetched? Many homeowners have had to confront this type of situation, where a significant change of an adjoining lot took place right under their nose and there was very little they could do about it.

These situations are classic examples of CAVEAT EMPTOR (buyer beware). This was the prevailing philosophy of our legal system toward consumers until recent years; however, it still applies in many instances when dealing with real estate.

A diligent buyer is required to research the zoning for any surrounding undeveloped property because that information is public record and each person is legally presumed to have knowledge of the public records. (It sounds easier than it actually is…?)

The biggest problem arises when there is a complete change of character of an existing property, such as a tear-down or a condemnation by the city. In these instances, it can be a complete surprise with no forewarning.

However, there are means of protecting yourself and your Association and it is merely a matter of paying attention and understanding what events you can and cannot change.

The following are some guidelines that would apply in most villages and cities in Illinois, although it is subject to local ordinance and one town can be different than another.

Most vacant land zoned as residential or agricultural will have to be redeveloped to support a new development. This will require at least one, if not two or more public hearings. The outcome of land that is condemned has to be decided by a lawsuit, first.
Notice must be sent to adjoining property owners, usually within 250 feet and notice must be published in the legal notice section of the local newspaper. Sometimes a sign is posted on the site.
When there are two public hearings, the first public hearing is held by the planning commission. The planning commission usually has seven to nine members appointed to make recommendation to the village board on land use, zoning and land planning matters. They are purely a recommending body. The second public hearing is later held by the village board itself. The village board or city council is usually comprised of five to nine elected officials who will make the final decision.
Public hearings are an opportunity for everyone interested to give comment. If you wish to speak at the meeting, you are sometimes required to make arrangements before the start of the meeting.
If a proposed development or change affects an entire association, it is best to have a single spokesperson proceed first, usually the association’s counsel. The lawyer can provide evidence in support of the association’s position.
At the beginning of the meeting, the clerk will swear-in everyone who wants to speak. There is usually a sign-in sheet. Each meeting follows the general procedures described for that particular city.
Typically, a plan commission for a village board meeting convened for a public hearing will follow this format:
1. A planner will highlight positive and negative points and present the staff’s recommendation. At the meeting, staff will also review the planning commission’s recommendation to the board.
2. The applicant then has an opportunity to present witnesses, evidence, site plan, etc. The commission will then ask questions
3. The hearing will then be open to public comment. This is where the audience has the opportunity to speak. If a lawyer is present, he or she can also cross examine the applicant’s witnesses or present expert testimony to a witness’s testimony.
  The purpose of the hearing is to allow the public the opportunity to speak. An individual will generally be allowed to speak for a limited period of time. Anyone authorized to represent a group will usually have more time.
4. The chairman will then close the public comment portion of the meeting.
5. The professional staff responds and summarizes the key issues and answers questions from the board.
6. The applicant has the opportunity to make final closing comments.
7. There may then be discussion between board members and questions of the applicant, people who have given public comment, or staff. If there are no further questions, a decision will be made to approve or disapprove. The same process is generally applicable to the village board or city council. The only difference is, they can vote to approve, disapprove or refer the matter back to the plan commission for further review.

Sometimes a matter involving a change of zoning will be referred to a zoning board of appeals or sometimes to an appearance review commission for aesthetic changes. Some villages have an ordinance that if a petition is filed by adjoining property owners and registered with the clerk, it will compel the board to pass the proposal only with a “super-majority” (two-thirds).

Other units of local government such as park districts have their own zoning authority and conduct their own hearings. Generally, there is an inter-governmental agreement between the city and the other taxing districts to abide by the village building and zoning codes and ordinances.

The most important thing is to pay attention to the notices and signs so you can arrange to review the proposal and are prepared to respond and attend the hearings. By providing constructive input and making intelligent comments, rather than just an emotional response, you may not be able to stop a project, but you can have a positive impact on the final decision.

Sometimes there is a bona fide legal reason for land not to be developed in a certain fashion. In those instances, you have to be prepared to hire experts (traffic, land use, appraisers, etc.) and go to court before the construction commences.

None of these steps can guarantee a favorable result but at the very least, you will have input. Otherwise, you may wake up one day and find that they built a sports arena in the park next to your house.