A WIN FOR THE LITTLE GUY
This month’s edition of my newsletter provides a “war story” of a zoning matter with a successful result at the trial court level. It’s been awhile since I’ve sent out this newsletter. I’ll try to be more diligent in 2017 and trust you’ll find my articles of interest and of use. Remember I am here to provide the best legal advice and service that I can. If I can be of assistance I am only a phone call or email away. Also if you know of anyone who can use my services or those of our law firm I’d appreciate the referral.
A WIN FOR THE LITTLE GUY
My client is a hard working and honest man. He’s Mexican-American and English is not his first language. In 1982 he and his wife bought a parcel of property in unincorporated Cook County with a small house on it. My client and his wife took up residence on the property and he began his landscape business. Over the next three years my client acquired three adjacent properties; two of which had small houses on them. Eventually his sons moved into the houses and worked with their father and helped him make the business a success.
In 1988 an adjacent municipality approached my client and asked him to voluntarily annex two of his properties. This municipality was in a boundary war with another Village and wanted my client’s property so they could control the area. My client asked what was he going to get in return and was told he could “keep staying there and working there.” My client trusted the municipal officials who approached him and he and his wife signed a voluntary petition to annex two of their properties. Once these properties were annexed the other properties were surrounded and were forced annexed. Upon annexation as is customary the properties were zoned residential.
For the next twenty-seven years my client and his sons continued to reside on the properties and operated their landscape business. During this period numerous building permits were issued for improvements and one was for an eight foot fence along the west boundary of the properties that needed an exception because the height limit was six feet. Also during this twenty-seven year period violation notices were issued from time to time. Each time a violation was brought to my client’s attention he and his sons promptly corrected the problem.
In May of 2015 the Village issued a complaint for operating a landscape business in a residential district and operating a contractor’s yard without a special use permit. Obviously my client was surprised and shocked at the Village’s actions. He felt they had gone back on their promise that he would be able to stay at his property and continue to work there. Once I was retained I endeavored to settle the matter but the Village Board had directed staff to “shut down” any businesses that were operating in residential zoning districts regardless of the circumstances.
A zoning complaint such as the one issued to my client is first heard by an Administrative Hearing Officer. They are referred to as Administrative Law Judges. Generally they are attorneys hired by the municipality to conduct hearings and issue decisions. Their decisions are subject to what is called “Administrative Review” by the circuit court.
An administrative hearing was held in May of 2016. The Village put on its evidence and in defense I had my client testify as well as one of his sons. In addition I had a well regarded land planner testify. My client testified through an interpreter as to how he acquired the properties and started his landscape business. He testified as to how the Village asked him to annex and what they told him about being able to continue to operate. My client’s son testified as to how the business operates with trucks going out early in the morning and coming back late afternoon or early evening. There’s little activity during the day. Landscape materials are stored on the property but there are no high stockpiles and landscape waste is removed every few days. I had my client’s son go through each of the building permits that were issued and how one of the violation notices was because they were expanding the business from what it was when the property was annexed. My client’s son testified that the Village did not require him to remove the additional storage containers that had been brought onto the property but told him “just to keep it as it was.” A new house is being built just a lot or two away to the north and my client’s son estimated its cost of construction at five hundred to six hundred thousand dollars. Our expert in land planning testified that in his opinion there has been no adverse impact from the landscape business on the normal and orderly development of the area.
When I cross examined the Village’s Director of Community Development he admitted that he had been employed by the Village for twelve years and he always knew how my client’s property was being used. I got him to admit that he granted the exception that allowed the eight foot high fence because the Village wanted my client’s trucks and landscape operation screened from the adjoining residential street.
In closing argument I argued my client’s use of the property was a legal non-conforming use and that he had acquired a vested right to continue to operate as he had been for twenty-seven years. I also argued the legal theories of equitable estoppel and laches. Equitable estoppel can be applied to a municipality when a person’s action was induced by the conduct of municipal officers and where in the absence of relief the property owner will suffer a substantial loss and “the municipality would be permitted to stultify itself by retracting what its agents have done”. Laches is a doctrine that bars a plaintiff relief where because of the delay in the plaintiff asserting a right the defendant is misled or prejudiced.
I had warned my client that most likely we would lose before the Administrative Law Judge. Not because our case was weak or my legal arguments were not well founded. It’s just how the system works. Sure enough I was right and the Administrative Hearing Officer ruled against my client and found that his business was not a permitted “home occupation” and there was no basis to find a vested right had been acquired or that the doctrines of equitable estoppel or laches should apply. In addition he found my client’s use of the property was not a legal non-conforming use. My client authorized filing a lawsuit in the Circuit Court of Cook County for Administrative Review.
When a complaint for Administrative Review is filed the municipality is required to answer by filing the record that was made at the administrative hearing. This includes the transcript of the testimony and any exhibits that were introduced into evidence. On Administrative Review the trial court is not allowed to consider any additional evidence. The Judge is limited to reviewing the record that was made at the administrative hearing. This is why it is critical to get into the record anything you think is needed to succeed. You do not have an opportunity to add anything before the trial court.
Fortunately the trial judge was a former City of Chicago alderman and very familiar with zoning and its legal nuances. Once the Village filed the record I made a Motion for Judgment on the Pleadings. The Village filed a response and I filed a reply.
At the hearing the Judge directed his questions mainly to the Village attorney. The Judge started with questions regarding why my client’s business should not be considered a legal non-conforming use. It appeared the Judge was leaning in my client’s favor. I have done this long enough to know that when this occurs the best thing to do is say as little as possible. That’s what I did and before I knew it the Judge shifted gears and focused on our legal defense of “laches”. The Judge went through each and every time the Village issued a permit or inspected the property. He found especially compelling the inspection where the inspector noted on his report that my client was expanding the non-conforming use from what it had been at the time of annexation. The Judge also noted how the Village had issued an exception for the height limit of the fence because it wanted the commercial vehicles and landscape operation screened from the adjacent residential street.
The Judge stated that my client’s case was the “poster child” for the equitable defense of laches. I knew this was our strongest defense and emphasized the doctrine of laches in my initial brief and the reply I filed. Also I concentrated on this defense in the oral argument I made and specifically referred to the Illinois Appellate Court decision in Du Page County vs K-Five Construction. In K-Five, Du Page County was prevented from enforcing its zoning ordinance against a concrete batching plant that was an illegal use because the County waited five years from the time it knew of the illegal use. Obviously I argued that if five years was enough in K-Five then waiting twenty-seven years was far more egregious. Also in K-Five the Appellate Court noted that the County had failed to prove harm to the general public if its zoning ordinance was not enforced. I argued the same situation existed in my client’s case and this was borne out by the fact a house worth half a million dollars was being built two lots away.
The Judge ruled in my client’s favor and held that the Village cannot enforce its zoning ordinance against my client’s property and business. He’s allowed to continue to operate as he has been all these years. The Judge ruled that my client can’t expand his use but that’s fine and as it should be.
My client will have to wait and see if the Village appeals the trial court’s ruling. If it does I think we have a good chance of success at the Appellate Court level due to the manner in which the trial court went through each and every time a building permit was issued or a violation notice issued and nothing was done for over twenty-seven years to stop my client from doing what he had been told from the beginning he’d be allowed to do if he cooperated with the Village and annexed his property. My client always acted in good faith.
In my opinion justice has prevailed and a win obtained for the “little guy.” Hopefully the Village will see fit to leave my client and his business alone. If not we’ll move up to the Appellate Court and I trust the Appeals Court will agree with the trial court. In the meantime my client can continue to cut grass, prune bushes and plant flowers. However, this time of the year its snow plowing.