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When Local Government Wants to Play in Your Backyard

David T. Arena

You work hard, respect your neighbor, pay your taxes and do your best to provide for your family. Local government normally does not interfere in your personal life. However, what do you do if local government comes to your home, to your life, and imposes its authority on you absent you bringing yourself to its attention?

This is exactly what happened to a family living in Glenview. In 2011, a family residing in Glenview came to Di Monte & Lizak because all efforts to reach a reasonable agreement with the Village failed.

The clients moved into their home in 2007. The home was constructed in 1987. Mom and Dad were employed and were raising 2 young children. In 2009, a Village engineer rang the doorbell asking if he could look into the clients’ backyard. He was granted access. Later, the clients received a notice from the Village citing them for a zoning violation. The notice alleged that the clients’ backyard elevation was approximately one foot higher than the elevation specified on the subdivision plat of survey. During the three years that the clients lived in their house, they performed no work which altered the elevation of their backyard. However, the Village demanded that they remove 24 cubic yards of soil from the backyard to decrease the elevation and come into compliance. What did this mean? The clients’ backyard was 25 feet wide and 75 feet long. The Village was demanding that the clients remove a swath of earth that was one foot deep, 20 feet wide and 50 feet long.

The clients were perplexed. They performed no work to change the elevation of the backyard, and the Village raised no issue about the backyard when the clients were buying the house. The Village’s demand would render the backyard unusable, jeopardize the life of several large trees, and impair the resale value of the home.

Prior to engaging Di Monte & Lizak, the clients employed an engineering firm to develop multiple alternatives to address the stormwater detention requirements apparently driving the Village’s demands. The Village rejected all efforts to compromise.

At trial, we were able to establish that the subdivision was developed in 1988. The original plan was that the surface of the backyards of the clients’ property and adjacent properties would satisfy stormwater detention requirements. Within several years of development, the Village determined that the original plan was insufficient, and the Village required the developer to install a stormwater sewer system in the backyards. This work apparently altered the elevation of the clients’ backyard. However there was no conclusive evidence of this because the Village did not obtain as-built elevations prepared after the sewer system was installed. The as-built elevations would have set the benchmark elevation by which to measure the client’s existing elevation.

At trial, we were able to establish that the Village had no benchmark from which to measure the elevation on the clients’ backyard at the time they purchased the property and the Village had no evidence that the clients altered the elevation. The zoning ordinance in general mandated that “no person” shall alter the elevation. Ultimately, the court agreed with our arguments that absent proof that the clients took affirmative steps to change the elevation of their backyard, the clients were not liable for the nonconformance. In the end, the Village’s demands were denied and our Clients were not required to perform any corrective work.

So, what is the lesson to be learned here? Local government is a necessary part of our lives. For the most part, municipal employees operate in good faith for the benefit of its citizens. However, municipal employees are not vested with absolute authority. They are people like you and me – and sometimes they get it wrong. If you are having trouble dealing with your municipality, DiMonte & Lizak is experienced with municipal law and working to negotiating a settlement that avoids the expense, time and stress associated with litigation. However, if litigation is necessary, we are fully capable of advocating for our client’s rights at trial.

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Di Monte & Lizak, LLC,

216 Higgins Road,

Park Ridge, IL 60068