Wednesday, September 10th, 2014

Update: Appellate Court Confirms School Districts Subject to Home-Rule Zoning

In an earlier issue, we wrote about the dispute between the City of Crystal Lake and Community High School District No. 155 as to whether the District’s construction of bleachers was subject to the City’s zoning process.  The City prevailed on summary judgment before Judge Chmiel of the McHenry County Circuit Court, and the District appealed.  On September 3, the Second District Appellate Court issued its opinion in Gurba v. Community High School Dist. No. 155, which affirmed the trial court’s ruling in favor of the City.

The appellate court recognized that there is no direct authority on the relative power of school districts versus municipal zoning ordinances.  It cited two primary bases as to why school districts are subject to the zoning power of home-rule municipalities: the Illinois Constitution and the “Zoning Change Provision” of the School Code.

As to the Constitution, the court held that regulatory power tilts toward home-rule municipalities and away from school districts when they come into conflict.  Home-rule municipalities are given plenary authority over their government and affairs, and this constitutional power can only be limited by an explicit statutory restriction.  School districts, however, have no inherent constitutional authority.  Their power comes entirely from the state statutes.  Additionally, as the court noted, home-rule municipal ordinances will trump home-rule county ordinances when the two come into conflict.  The court observed that not only are school districts not home rule, but they are on the lowest tier of public entities, not being included in the constitutional definition of either “municipalities” or “local governments.”

More persuasive than the constitutional analysis, perhaps, is the court’s discussion of the “Zoning Change Provision” in the School Code, 105 ILCS 5/10-22.13a.  The Zoning Change Provision is part of a list of powers granted to school districts, and it gives them the power “[t]o seek zoning changes, variations, or special uses for property held or controlled by the school district.”  The court held that this statute would be meaningless if school districts were not subject to municipal zoning ordinances.  The court also noted that because no other zoning-related power was granted to school districts, they do not have any authority to make zoning changes on their own, but rather must follow municipal zoning procedures.

Ultimately, the court held that a school’s mission of providing education is completely compatible with a municipality’s powers over zoning and land use.  A school district may be charged with providing public education, but that mission does not conflict with or absolve it from following a zoning ordinance.  The court did note that schools are exempt from municipal health and safety codes, and have jurisdiction over those issues on their own property, but held that zoning and land use ordinances are different.

The court did not address whether its opinion would apply to non-home rule municipalities and their zoning ordinances.  However, both the constitutional and statutory (Zoning Change Provision) holdings seem to be independent bases for establishing the primacy of zoning ordinances.  The constitutional argument applies only to home-rule ordinances, but the statutory argument applies to any municipal zoning ordinance.  In its discussion of the Zoning Change Provision, the court approved of a recent Attorney General opinion (2011 Ill. Att’y Gen. Op. No. 11-005) stating that school districts are subject to municipal and county zoning ordinances unless the ordinance conflicts with the actual providing of public education.  Given that the Attorney General’s opinion did not discuss home rule, it seems likely that the appellate court’s holding applies to both home rule and non-home rule municipalities alike.

After the opinion was released, the City issued an ultimatum to the School District to start zoning proceedings by Oct. 16 or face enforcement.  See “Crystal Lake increases pressure on D-155 officials to enter zoning for bleachers,” Northwest Herald, Sept. 8, 2014.  The School District still has time to petition for review by the Illinois Supreme Court, but it may have to face consequences with the City while awaiting word from the Supreme Court.  We will send further updates on this case as developments warrant.


Gregory J. Barry

Author: Gregory J. Barry