Owners and tenants of real property may file citizen suits to abate nearby zoning violations and recover there attorney fees under section 11-13-15 of the Illinois Municipal Code. This article reviews section 11-13-15 and recent appellate court decisions which make it easier for plaintiffs to prevail in citizen suits.
A person familiar with Chicago's Zoning Ordinance could spend a lifetime identifying zoning violations in Chicago.1 From illegal advertising signs to misplaced parking lots to businesses operating in residential areas, the city is awash with zoning infractions. Violations of local zoning requirements throughout Illinois often disturb residents living or working near them and lower property values in the community. Section 11-13-15 of the Illinois Municipal Code allows any owner or tenant of real property within 1,200 feet of a zoning violation to sue to abate the violation.2 A prevailing party is entitled to the reasonable costs of litigation, including attorney fees.3
This article first discusses section 11-13-15 of the Illinois Municipal Code. It then reviews a long and successful battle by the Burnham Park Planning Board ("Burnham Park") to remove two advertising signs4 from the corner of Dearborn Street and Congress Parkway in Chicago.5 The signs were erected and maintained in violation of section 9.9(5) of the Chicago Zoning Ordinance.6 Although it took Burnham Park almost five years to secure the removal of the advertising signs, the signs are gone, and Burnham Park has recovered over $30,000 in attorney fees.
The decision by the Illinois Appellate Court in the Burnham Park case, Corkill Electric Co. v. City of Chicago,7 along with another recent decision interpreting section 11-13-15 of the Illinois Municipal Code, LaSalle National Bank v. Harris Trust and Savings Bank,8 has paved the way for citizens in Illinois to sue to abate zoning violations.
II. Section 11-13-15 of the Illinois Municipal Code
Section 11-13-15 of the Illinois Municipal Code authorizes both municipal officials and owners or tenants of real property within 1,200 feet of a zoning violation to sue to halt it.9 The section contains the following major elements and remedies.
A. The Building or Structure, Including Fixtures, Must Violate Specified Local Ordinances
The statute's broad language requires only that the building or structure be "maintained" or "used" in violation of an ordinance. It therefore covers virtually all potential zoning violations.10
Section 11-13-15 allows enforcement actions against infractions of ordinances adopted under divisions 13, 31 or 31.1 of the Illinois Municipal Code.11 Division 13 of the Illinois Municipal Code empowers "the corporate authorities in each municipality" to enact zoning ordinances.12 As long as a municipality has adopted its zoning ordinance pursuant to division 13, plaintiffs are entitled to sue under section 11-13-15. Non-home rule municipalities generally have adopted zoning ordinances pursuant to division 13. As such, these zoning ordinances are fully enforceable under the language of section 11-13-15.13
Until the Illinois Appellate Court's recent decision in LaSalle National Bank v. Harris Trust and Savings Bank,14 there was some question about whether plaintiffs in home rule units, such as Chicago, could use section 11-13-15 to abate zoning violations. In 1971, the Illinois legislature amended section 11-13-1 to state that division 13 does not apply to home rule units such as Chicago.15 Ten years later, a federal court in Alschuler v. Department of Housing and Urban Development16 invoked the 1971 amendment to dismiss a section 11- 13-15 action brought in Chicago. Finding that Chicago. as a home rule unit, did not adopt its zoning ordinance pursuant to division 13 of the Illinois Municipal Code, the court found that plaintiff had no authority under section 11-13-15 to file suit.
In LaSalle National Bank v. Harris Trust and Savings Bank,17 the first district of the Illinois Appellate Court rejected the federal court's Alschuler decision. Justice Gordon, writing for the court, held division 13 of the municipal code unconstitutional to the extent that it deprived home rule units and their citizens from invoking section 11-13-15 to abate zoning violations.18 LaSalle National Bank confirms the rights of plaintiffs in Chicago and other home rule units to file section 11013-15 suits.
B. A Municipality, Owner, or Tenant of Real Property Within 1,200 Feet of the Violation Has Standing
In addition to the municipality, any owner or tenant of real property within 1,200 feet of the zoning violation has standing to sue under section 11-13-15. Although section 11-13-15 states that a private plaintiff must show "that his property or person will be substantially affected by the alleged violation," the Act was amended in 1977 to state that plaintiff need not show any specific damages and now provides that "[a]n owner or tenant need not prove any specific, special or unique damages to himself or his property or any adverse effect upon his property from the alleged violation in order to maintain a suit under the foregoing provisions."19
C. Plaintiff May File Circuit Court Action to Abate the Violation
The statute authorizes the plaintiff to file suit "1) to prevent the unlawful construction, reconstruction, alteration, repair, conversion, maintenance, or use, 2) to prevent the occupancy of the building, structure, or land, 3) to prevent any illegal act, conduct, business, or use in or about the premises, or 4) to restrain, correct, or abate the violation."20
D. A Private Plaintiff Must Serve Municipal Officials With a Copy of the Section 11-13- 15 Complaint
Upon filing suit, a private plaintiff must serve the chief executive officer of the municipality with a copy of the complaint. The requirement to serve the municipality appears to be jurisdictional. Section 11-13-15 specifically states that "no such action shall be maintained until such notice has been given."21
E. Courts may issue temporary restraining orders, preliminary or permanent injunctions to abate violations; successful plaintiffs are entitled to attorneys fees
The statute allows the court to issue a mandatory injunction requiring the defendant to abate a violation. It also provides that if the court finds that the defendant has violated the zoning provisions, it "shall" allow plaintiff "a reasonable sum of money for the services of the plaintiff's attorney."22 Courts have held that the award of attorney fees to a successful private plaintiff is mandatory.23
III. Burnham Park's Lawsuit to Remove the Advertising Signs
The Burnham Park case presented a series of procedural roadblocks. To begin with, the City of Chicago mistakenly issued a permit to the owner of the advertising signs. Then, after the city reversed itself and held the signs illegal; the owner had already begun to construct the signs; the owner appealed the city's administrative decision to the circuit court. Nevertheless, Burnham Park was able to employ section 11-13-15 successfully.
In the fall of 1985, the Chicago Department of Inspectional Services incorrectly issued a permit for the construction of two advertising signs at the corner of Dearborn Street and Congress Parkway in Chicago. The permit violated section 9.9(5) of the Chicago Zoning Ordinance.24 Section 9.9(5) prohibits all advertising signs within 500 feet of a "major route." The term "major route" is defined to include "those portions of the Comprehensive Superhighway System of the City of Chicago, approved by the City Council."25 In 1940, the Chicago City Council designated Congress Parkway, including the area where the signs were constructed, as part of the Comprehensive Superhighway System of the City of Chicago.26 The city council has never changed the designation.
When Illinois Petroleum Company, Inc. ("Illinois Petroleum"), the owner of the site, began to construct the signs in 1986, members of Burnham Park immediately complained to the city zoning department that the signs violated section 9.9(5). The zoning administrator agreed with Burnham Park, and in November 1986 issued an "Official Denial of Zoning Certification" for the signs.
Despite the administrator's denial, Illinois Petroleum continued to construct the sign structure. The company appealed the denial to the city zoning board of appeals. At the hearing in early 1987, Burnham Park argued that the signs were in clear violation of section 9.9(5). The zoning board concurred with Burnham Park and issued a resolution declaring the signs illegal. Nevertheless, Illinois Petroleum placed advertisements on the signs.
Illinois Petroleum appealed the Zoning Board's decision to the Circuit Court of Cook County under the Illinois Administrative Review Act.27 Illinois Petroleum named as defendants, among others, the city and Burnham Park. As a party of record to the Zoning Board action, Burnham Park was made a nominal defendant pursuant to section 3-107 of the Illinois Administrative Review Act.28
Fearful that the city might not seriously defend the action, and recognizing that even if the circuit court affirmed the zoning board's decision, the court, sitting in administrative review, may not order the signs to be removed,29 Burnham Park looked the section 11-13-15 of the Illinois Municipal Code. Because it was already a nominal defendant in the administrative review action, Burnham Park filed a counterclaim, Burnham Park filed a counterclaim against Illinois Petroleum under section 11-13-15. In its amended counterclaim, Burnham Park alleged that it was a tenant of real property within 1,200 feet of the illegal signs. It sought an order directing Illinois Petroleum to remove the signs and asked for its attorney fees.
In October 1988, the circuit court heard oral argument on the administrative review claim. The court affirmed the zoning board's ruling that the signs violated section 9.9(5) of the Chicago Zoning Ordinance. However, the court refused to affirm the zoning board's decision in full. Instead, it remanded the matter back to the zoning board to address the issue of whether the city, which had issued the permit for the signs in late 1985, was estopped from subsequently denying the permit.30
At the administrative review hearing, Burnham Park argued that Illinois Petroleum's estoppel argument could be asserted only against the city, not Burnham Park. Burnham Park pointed out that it did not issue the permit. Furthermore, from the time Illinois Petroleum began to construct the signs, Burnham Park had consistently registered its objections. Thus, Burnham Park had taken no action (or inaction) that would constitute estoppel.31
Burnham Park further argued that it had an independent right to pursue its section 11-13-15 action for injunctive relief, regardless of the status of the Zoning Board proceeding and Illinois Petroleum's administrative appeal. The circuit court agreed to address Burnham Park's counterclaim independently of the administrative review action. It severed Burnham Park's counterclaim from the administrative review action, and granted Burnham Park leave to file a motion for summary judgement on its counterclaim.
In November 1988, the circuit court granted Burnham Park's motion for summary judgment, finding that estoppel did not apply to Burnham Park. The court ordered Illinois Petroleum to remove the signs within 30 days. In early 1989, the court also ordered Illinois Petroleum to pay Burnham Park its attorney fees, required by section 11-13-15. Illinois Petroleum appealed the decision, posted a bond, and the judgment was stayed pending appeal.
In April 1990, the Illinois Appellate Court affirmed the circuit court's decision ordering Illinois Petroleum to remove the signs and to pay the attorney fees.32 The Illinois Supreme Court denied Illinois Petroleum's appeal in October 1990.33 In early 1991, Burnham Park collected its attorney fees, plus interest, from the insurance company that posted the bond. After several hearings on contempt charges, Illinois Petroleum removed the advertisements from the signs in the summer of 1991. The company finally removed the sign structures in the fall of 1991.
Most Illinois municipalities have passed strong and comprehensive zoning ordinances. These local governments, however, neither have the funds, nor, in some cases, the inclination to institute direct court actions against many violators of their zoning laws. On other occasions, due to erroneous issuance of permits, local governments may find it politically or legally untenable to sue to abate zoning violations. Other instances arise when local governments attempting to enforce their zoning laws are caught up in lengthy administrative appeals. Meanwhile, many zoning violations continue unabated.
Section 11-13-15 presents private citizens with a streamlined approach to abating zoning violations. For all intents and purposes, an interested citizen need only prove that the building or structure violates the zoning ordinance. From there, the court is authorized to issue a mandatory injunction requiring abatement of the violation, and is directed by section 11-13-15 to award attorney fees to the successful private citizen. As Corkill Electric Co. v. City of Chicago shows, a private citizen can be successful even when a municipality has wrongfully issued a permit. Moreover, as in Corkill, the status of an administrative appeal concerning the building or structure may be irrelevant to the section 11-13-15 action.
Section 11-13-15 of the Illinois Municipal Code has, for the most part, been neglected. Recently, however, the public has taken a more active role in attempting to improve unhealthy living conditions. One method the public is turning to in increasing numbers is the citizen suit filed directly against the alleged violator.34 Section 11-13-15 of the Illinois Municipal Code is a powerful citizen suit provision that Illinois property owners and residents can use to abate local zoning violations and recover the costs of prosecution.
1. The Chicago Zoning Ordinance is codified at Chapter 194A of the Chicago Municipal Code.
2. Section 11-13-15 of the Illinois Municipal Code is codified at Ill. Rev. Stat. ch. 24, 11- 13-15 (1991).
4. The advertising signs at issue are commonly referred to as billboards.
5. The Burnham Park Planning Board is an Illinois not-for-profit corporation. It is composed of developers, businesses, religious, cultural and educational institutions and a residents' association in the Burnham Park neighborhood of Chicago. Burnham Park opposed the advertising signs because, among other reason, they were unsightly and interfered with the historically significant architecture on Dearborn Street.
6. Chicago Municipal Code, ch. 194A, section 9.9(5). p>7. 196 Ill. App. 3d 838, 554 NE2d 1027 (1st D), appeal denied, 133 Ill. 2d 553, 561 NE2d 688 (1990).
8. 220 Ill. App. 3d 926, 581 NE2d 363 (1st D 1991).
9. The initial version of section 11-13-15 authorized only the municipality, and not private citizens, to file abatement suits. (Laws 1921, p 180, section 4 1/2). It was not until 1953, that the legislature amended the Act to provide for citizen suits. (Laws 1953. p 431, section 1, Ill Rev Stat ch 24, section 73-9 (1953)). The 1953 version of the Act gave standing to all tenants and owners of property "in the same zoning district" as the violation. In 1969, the legislature amended the Act to provide standing to tenants and owners of property within 500 feet of the violation. (PA 76-585. Ill Rev Stat Ch 24, section 11-13-15 (1969)). In 1977, the legislature expanded the number of potential private plaintiffs by allowing all property owners and tenants within 1,200 feet to file suit (PA 80-419, section 1, Ill Rev Stat ch 24, section 11-13-15 (1977)).
10. Section 11-13-l5 also allows municipalities and private parties to sue to demolish or repair unsafe buildings and to abate building code violations. See note 13
11. Ill. Rev. Stat. ch 24, sections 11-13-1 et seq., 11-31-1 et seq. and 11-31.1- 1 et seq. (1991).
12. Division 13 of the Illinois Municipal Code, Ill. Rev. Stat. ch 24, 11-13-1 et seq., is entitled "Zoning." Section 11-13-1 empowers the corporate authorities of each municipality to enact a variety of zoning measures.
13. Division 31 of the Illinois Municipal Code, Ill. Rev. Stat. ch 24, 11-31-1 et seq. is entitled "Unsafe Buildings." Division 31.1 of the Illinois Municipal Code, Ill. Rev. Stat. ch 24, sections 11-31.1-1 et seq (1991) is entitled "Building Code Violations." Section 11-13-15 authorizes private plaintiffs to file actions for the repair or demolition of unsafe buildings and to abate building code violations, in addition to filing actions to abate zoning violations. However, section 11-31-1(b) of Division 31 imposes an additional requirement on citizens intending to file suits to remedy unsafe buildings. Plaintiff must first request the municipality to institute an action. Plaintiff may file suit only if the municipality has failed to bring an action within 90 days of the private plaintiff's request. This special 90 day waiting period for suits relating to unsafe buildings, does not apply to section 11-13-15 suits regarding zoning or building code violations. Ill. Rev. Stat. ch 24, 11-31-l(b)(1991).
14. 220 Ill. App. 3d 926, 581 NE2d 363 (1st D 1991).
15. Ill. Rev. Stat. ch 24, 11-13-1 (1991). <
16. 515 F. Supp. 1212 (ND Ill. 1981), aff'd, 686 F2d 472 (7th Cir. 1982).
17. 220 Ill. App. 3d 926, 581 NE2d 363 (1st D 1991).
18. In reversing the circuit court in LaSalle National Bank, the Illinois Appellate Court held division 13 unconstitutional to the extent that it prevented home rule units and their citizens from enforcing zoning violations. The court noted that there would be no valid reason to allow non-home rule units to employ section 11-13-15, while at the same time prohibiting home rule units from obtaining the same remedy to abate zoning violations. Such a distinction between home and non-home rule units would establish an unconstitutional classification. The court added that framers of the Illinois Constitution of 1970 intended home rule units to have greater, not lesser, powers than non-home rule units. Id, 581 NE2d at 365, citing City of Urbana v. Houser, 67 Ill. 2d 268, 367 NE2d 692 (1977), Wellington v. City of Chicago, 144 Ill. App. 3d 774, 494, NE2d 603 (1st D 1986), City of Carbondale v. Van Natta, 61 Ill. 2d 483, 338 NE2d 19 (1975). Finally, the court noted a series of amendments to section 11-13-15 that "expand the statute's scope" and concluded that "[i]t would be inconsistent with this legislative intent for us to find that no private actions under section 11-13- 15 may be brought in municipalities functioning as home rule units." 581 NE2d at 366.
19. Section 11-13-15, cited in Greer v. Illinois Housing Development Authority, 150 Ill. App. 3d 357, 390, 501 NE2d 723, 744 (1st D 1986), aff'd, 122 Ill. 2d 462, 524 NE2d 561 (1988); see also LaSalle National Bank, 581 NE2d at 366.
20. Ill. Rev. Stat. ch 24, 11-13-15 (1991).
22. Id. The legislature made the award of attorney fees mandatory in 1969 (PA 76-585). From 1961 to the 1969 amendment, the court had discretion as to whether or not to award attorney fees. (Laws 1961 at 576). Prior to 1961, attorney fees award were not authorized by the statute.
23. See Meyer v. Marshall, 62 Ill. 2d 435, 439, 343 NE2d 479, 482-83 (1976); City of Chicago v. Westphalen, 93 Ill. App. 3d 1110, 418 NE2d 63, 80 (1st D 1980). One court, however, affirmed the refusal of a circuit court to award attorney fees to a plaintiff that merely duplicated the actions of the municipal authorities. Launius v. Najman, 129 Ill. App 3d 498, 47 NE2d 170 (1st D 1984). Launius has been construed to prohibit attorney fees only in the narrow situation when a private plaintiff adds virtually nothing to an abatement action prosecuted by a municipality. As long as a private plaintiff establishes "at least, a substantial contribution independent of the actions of the municipal authorities, to the ultimate success in correcting or preventing violations of the municipal ordinances," it is entitled to attorney fees. City of Chicago v. Higginbottom, 219 Ill. App 3d 602, 579 NE2d 890, 903(1st D 1991) (affirming denial of an attorney fees petition by private parties who intervened in City's successful suit to abate building code violations). See Corkill, 554 NE2d at 1034, where the appellate court confirmed the award of attorney fees, finding that it was the efforts of the private party, Burnham Park, and not the City, that resulted in halting the zoning violation.
24. Section 9.9(5) of Chapter 194A of the Chicago Municipal Code. The section was amended in 1990. However, that amendment is not relevant to Burnham Park's lawsuit or to this article.
25. In addition to designating as a "major route" portions of the Comprehensive Superhighway System, section 9.9(5) also designates the following as major routes: (a) Lake Shore Drive, (b) "all expressways or tolIways, so designated by the Bureau of Maps and Plats, Department of Public Works of the City of Chicago," and under section 9.9(5)(d) any street designated by the City Council by amendment.
26. See October 30-31, 1940 Journal of the City Council of Chicago at 3309-10; Corkill, 554 NE2d at 1033.
27. Ill. Rev. Stat. ch 110, 3-101 et seq. (1991). For reasons unknown to the author, Illinois Petroleum named Corkill Electric Company as the lead plaintiff in the action. Illinois Petroleum named itself as the second plaintiff.
28. Ill. Rev. Stat ch 110, 3-107 (1991).
29. Section 3-111 of the Illinois Administrative Review Act, Ill. Rev. Stat. ch 110, 3-111 (1991), entitled "Powers of circuit court," does not explicitly allow a circuit court sitting in administrative review to issue a mandatory injunction. Rather, if the court decides the case on the merits, it is authorized under the Administrative Review Act solely to "affirm or reverse the decision," 3-111(a)(5), or to enter a monetary judgment, 3-111(a)(8). Although the circuit court is a court of general jurisdiction with broad powers, Burnham Park reasoned that the court would be more likely to grant a mandatory injunction to remove the signs if it filed a counterclaim under section 11-13-15, which specifically provides for injunctive relief.
30. See Corkill, 554 NE 2d at 1029-30.
31. Estoppel is an equitable defense that prevents a party from asserting a claim that would otherwise be available to that party. "[T]he party against whom estoppel is asserted must have by his acts or representations induced the party claiming the estoppel to rely on his acts or representations." 18 Illinois Law and Practice, Estoppel, section 23 (1956). See also Corkill, 554 NE2d at 1032 listing the elements of equitable estoppel. The Corkill court focused on the requirement that there must be some conduct by the party against whom estoppel is alleged that the party claiming estoppel relied upon. Illinois Petroleum could point to no conduct by Burnham Park that was inconsistent with Burnham Parks goal to remove the signs. As a result the court affirmed the dismissal of Illinois Petroleum's estoppel affirmative defense against Burnham Park. Id.
32. Corkill, 554 NE 2d 1027.
33. 133 Ill. 2d 553, 561 NE2d 688 (1990).
34. Several federal environmental statutes include citizen suit provisions, authorizing
interested parties to sue alleged polluters. These include section 310 of the Comprehensive
Environmental Response, Compensation and Liability Act, 42 USCA section 9659 (1991 Supp),
section 7002 of the Resource Conservation and Recovery Act, 42 USCA section 6972 (1991
Supp), section 505 of the Federal Water Pollution Control Act, 33 USCA section 1365 (1991
Supp), section 304 of the Clean Air Act, 42 USCA section 7404, section 326(a) of the
Emergency Planning and Right to Know Act, 42 USCA section 11046(a) (1991 Pamphlet), and
section 1449 of the Safe Drinking Water Act, 42 USCA section 330.