Municipal Law Q&A
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Municipal Q&A - May 2004
Can a special use or variance be granted only to a particular person for for a limited time?
ANSWER:
Illinois law allows governmental bodies with zoning power to grant variances and special uses to the standard terms of zoning ordinances. One frequently-used form of special use is a planned unit development. Ordinances granting PUDs and even less ambitious variances and special uses are permitted by law to contain conditions which limit and direct the way the property will be used under the new authority of the variance or special use. Most conditions specify the particular design of buildings which will be constructed on the properties or the particular kinds of uses which will be allowed. Some examples are ordinances which limited the hours of operation of a gasoline station, or required that a residential structure, granted a side-year variance, limit the number of windows on that side of the building so as to interfere less with the neighbors' use of their side yard. Often, a drawing or site plan is attached to the ordinance, and the development can only be built in substantial conformity with the exhibit. Sometimes, governmental bodies with zoning power wish to engage in broader conditions or restrictions such as the granting of a special use for only a particular period of time, or a grant only to a particular individual or company.
Illinois case law approves the corporate authorities of a local government setting a time limit on a special use permit. In Rockford Blacktop Construction vs. County of Boone, 263 Ill.App.3d 274, the County placed a five-year limitation on special use permits for mineral extractions from quarries. The Appellate Court noted that "a special permit may be issued for certain period of time and under certain restrictions which allow the County authorities the opportunity to maintain a certain degree of control of the special use." In the County of Boone case, the trial court found that the five-year limitation period was too short based upon the capital expenditures necessary to be installed to begin the operation. The Appellate Court reversed and upheld the five-year limitation. The Appellate Court found that the County's enactment, while initially limited to five years, allowed an application for a renewal for another five-year term. "The renewal permit may not be denied arbitrarily; the denial must be related to the public health safety, morals or general welfare. If the Zoning Board wrongly denies the permit, the quarry operator may seek judicial review."
Finally, the Appellate Court found that:
"The County Zoning Board made a legislative determination that special uses for quarrying should be reviewed every five years to allow for changing circumstances which would affect the public health, safety or welfare. The evidence here, at most, merely shows that the reasonableness of the restriction is 'fairly debatable.' Thus, the manifest weight of the evidence does not support the trial court's interference with the legislative judgment." The trial court judge was reversed and the five-year restriction upheld.
This case illustrates the fact that Illinois governmental bodies may limit the term of special use, especially in the case of businesses or other operations which may cause interference or disruption with other activities. The limitation must be reasonable and, in most cases, there must be an opportunity to renew the grant of the permit. Another example would be a situation in which a special use for one business was found to be dependent upon the continuing existence of another nearby business. Under those circumstances, for example, the special use for the second business probably can be conditioned upon the length of time that the first business will continue in existence. An example might be a refreshment stand outside of the grounds of a private amusement park, where a government wishes to tie the term of the refreshment stand to the continued existence of the amusement park.
Somewhat more complicated and problematic would be a decision by a governmental body to restrict a special use to only a single person or company. In the rarest of cases, courts have allowed for such a restriction. In Indiana, for example, the Court of Appeals, in the case of Elkhart County Board of Zoning Appeals vs. Earthmovers, Inc., 631 N.E.2d 927, upheld, on technical grounds, a condition imposed in a special use for a sanitary landfill, which restricted the use only to a single company. Although the court upheld that restriction, they stated that "the condition would have been more artfully drafted by, instead of naming only one user, including language to the effect that the landfill 'shall be a private landfill to be used only by its operator and affiliated companies.'"
In almost every case, where there might be a tendency to restrict a special use to a particular individual or company, the reason for the restriction could be more "artfully stated" by listing the characteristics of the user which caused the governmental body to wish to impose the restriction. For example, a special use for a company which produces commercial flavors might be restricted to an operator who utilizes a patented system which prevents odors from wafting into nearby residential areas. An office for an eye surgeon, who needs less parking because his patients arrive and leave in limousines owned by the physician, can be limited to a business which provides that special service. It is at least theoretically possible to think of some special use for the public health safety and welfare could only be served by a particular person or company which has a unique talent or process which would remove all of the negative aspects of anyone else providing that service at the same location. Absent some extraordinary situation, however, a governmental body should look not to the person or company, but to those special reasons which, if replicated by another user, would allow anyone prepared to assume the burden of the conditions to carry out the use at the specific location. In general, governmental bodies are created for the purpose of establishing general rules, which will apply to all persons or companies similarly situated. The granting of special dispensations to particular persons is not favored by the law in general and certainly would not be favored in zoning cases.
If you have a question about the use of an unusual condition in a zoning context, the lawyers of Ancel, Glink would be happy to discuss the matter with you. Please call Stewart Diamond or Paul Keller.
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