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Village Boards authorized to grant variations for ANYTHING?

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Latest post Wed, Jan 18 2017 8:43 AM by ca19lawyer2. 15 replies.
  • Fri, Jan 13 2017 3:13 PM

    • FJacob
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    Village Boards authorized to grant variations for ANYTHING?

    Can the Village Board of an Illinois home-rule community grant a variation on any ordinance?  Or does the ordinance have to confer authority to the Board in order to grant the variation?  Certain of our ordinances specifically state that variances can be granted to provide relief from its restrictions, but the Board is considering an ordinance providing a variation relating to a chapter where no such authorization is made.  (There is no provision in the ordinances that provides a 'general' blanket authority for the Village to grant variations at-will.)

    Thank you.

  • Fri, Jan 13 2017 3:30 PM In reply to

    Re: Village Boards authorized to grant variations for ANYTHING?

    The Village Board enacts the ordinances, and at the very least it could amend the ordinance to allow whatever exceptions or changes it wishes to make.

  • Fri, Jan 13 2017 3:32 PM In reply to

    Re: Village Boards authorized to grant variations for ANYTHING?

    I'm not in Illinois and, to the best of my knowledge, no Illinois attorneys post here regularly.  Nevertheless, assuming the "Village Board" is the governing body of the village, it would stand to reason that the board could grant the variation (since the village could, in theory, simply vote to do away with the ordinance in question, it wouldn't make much sense that it couldn't grant variations).  Does the village in question have a building and planning department (or something to that effect)?  If so, why not call and ask?  Are you seeking a variation for yourself?

  • Fri, Jan 13 2017 3:37 PM In reply to

    • FJacob
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    Re: Village Boards authorized to grant variations for ANYTHI...

    Yes, but the question is can they issue a variation when there is no authority to do so specifically stated in the ordinance?  

    For example, planning and zoning ordinances often have a clause stating that the Board can grant a variance upon ample showing of need.  But can a Board grant a variance on any ordinance it chooses?  Imagine for the sake of argument that an ordinance states that all speed limits in the community will be 25 MPH.  Do they have the power to grant a resident a variance so that he can go 35 MPH? 

  • Fri, Jan 13 2017 3:44 PM In reply to

    • FJacob
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    Re: Village Boards authorized to grant variations for ANYTHI...

    Thank you for responding.  Yes, the Village Board could repeal or do whatever it wants with the Village's ordinances, but the problem we're having (a group of concerned citizens) is that businesses are repeatedly coming to the Board seeking relief from whatever ordinance is bothering them, and the Board responds by granting them a variation.  It has become the de facto way of allowing businesses to 'get away' with anything.

    Sometimes the granting of the variation is in conflict with the language authorizing the variation, and now there is a proposed ordinance to grant a variation where, as far as I can tell, there is no such authorization.  We're trying to get the Board to play within the established rules of the community.

    Repealing an ordinance would assumingly require at least a public hearing, which would be more than the Village collecting the fees and rubber-stamping every variation request that comes through.

  • Sun, Jan 15 2017 11:54 AM In reply to

    Re: Village Boards authorized to grant variations for ANYTHI...

    I did a little googling, and according to the appeals-court decision in Dunlap v. Village of Schaumburg, the bar for challenging variation decisions made by a home-rule municipality's legislative body is set pretty high:  "a variance will not be struck down unless it is found to be arbitrary, unreasonable, and bearing no substantial relation to the public health, safety, morals, comfort, or general welfare."

    The court seems to be saying that each variation decision made by a Village Board is just another new zoning law and doesn't have to be consistent with previous zoning laws.  Sorry to be the bearer of bad news.

    If enough people care enough about this, you could all form an organization and try to get new, like-minded people elected to the Village Board.  Our friends in Woodinville, WA participated in such an effort to get new people elected to the City Council with good success, but it was a lot of work and quite a bit of enmity in the community resulted from it as well.

  • Mon, Jan 16 2017 11:49 AM In reply to

    • FJacob
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    Re: Village Boards authorized to grant variations for ANYTHI...

    karen2222, that's a good reference and it lead to many good case summaries, but everything I find is applicable to zoning ordinances.  In this case, the variance is being granted for a non-zoning ordinance.  (I realize now I should have made that clear in the beginning.)

    A close example to our situation would be if there were an ordinance making the sale of cigarettes within 500 feet of a school unlawful.  The ordinance is not under the Zoning chapter, but a stand-alone chapter with no provisions for the allowance of variations of any kind.

  • Mon, Jan 16 2017 2:30 PM In reply to

    Re: Village Boards authorized to grant variations for ANYTHI...

    FJacob:
    The ordinance is not under the Zoning chapter, but a stand-alone chapter with no provisions for the allowance of variations of any kind.

    Is there any reason you can't be a little clearer about what's going on?  Is it just one particular ordinance, and if so, is there some reason you can't explain here what the ordinance is/says?

    Also, are businesses getting exceptions that actually name the businesses?  As in, "Ordinance XYZ does not apply to 7-Eleven stores", or "is suspended with respect to Joe's Corner Store"?

    I suspect that even if you do provide more clarity I still won't be able to answer your question, but who knows.

  • Mon, Jan 16 2017 3:04 PM In reply to

    • FJacob
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    Re: Village Boards authorized to grant variations for ANYTHI...

    I appreciate your reply.  The cigarette-sales example above is as close as I can get.

    The fundamental question is whether the board can grant a variation providing relief from ANY ordinance, not just a zoning ordinance (where variations are explicitly allowed).  I cannot find any case law where a governing body issued a variance for anything but zoning or land use.

    Yes, in this case (following the example above), the variation (which is adopted by ordinance) specifically states "Business ABC" is relieved from Ordinance XYZ and can sell cigarettes within 500 feet of a school."

  • Mon, Jan 16 2017 4:22 PM In reply to

    Re: Village Boards authorized to grant variations for ANYTHI...

    FJacob:
    Yes, in this case (following the example above), the variation (which is adopted by ordinance) specifically states "Business ABC" is relieved from Ordinance XYZ and can sell cigarettes within 500 feet of a school."

    In my state, there is something in the state constitution that prohibits the unequal application of the law.  I haven't read it so I don't know exactly what it says, but I've read that this is why the package of special tax breaks local governments gave to Boeing when it was threatening to move jobs to other states have clumsy strange phrasing to describe the category of businesses receiving the tax breaks - along the lines of "Aerospace Manufacturers with Gross Revenues Greater than $X and Facilities in Everett and Renton" - so that in practice only Boeing would receive that tax break.  Apparently that does the trick for them;  as far as I know those tax breaks are being carried out.

    The citizens' group in Woodinville that got new City Councilmembers elected also hired a lawyer to sue the City claiming that its developer-friendly actions violated the state's Growth Management Act.  I don't remember whether they won in court, but my friends told me that effort cost the group a LOT of money in legal fees.  I think that case went all the way to the State Supreme Court.  Perhaps the most discouraging aspect of that experience is that if the Council had then passed MORE ordinances that violated the state GMA, the whole process would have had to begin anew to challenge the new ordinances.

    So the best approach seems to be political - if you don't like their laws, throw them out of office!  IMHO, of course.

     

  • Mon, Jan 16 2017 4:47 PM In reply to

    Re: Village Boards authorized to grant variations for ANYTHI...

    FJacob:
    Yes, in this case (following the example above), the variation (which is adopted by ordinance) specifically states "Business ABC" is relieved from Ordinance XYZ and can sell cigarettes within 500 feet of a school."

    One more thought:  if Business ABC was selling cigarettes within 500 feet of a school well before Ordinance XYZ prohibited it, Business ABC might be "grandfathered in," or might be entitled to compensation if the ordinance causes extreme hardship for that business.  If that's the case, maybe the Village leaders simply didn't want to be sued and/or have to shell out a lot of Village money they don't have.

  • Tue, Jan 17 2017 12:44 PM In reply to

    Re: Village Boards authorized to grant variations for ANYTHI...

    FJacob:
    the problem we're having (a group of concerned citizens) is that businesses are repeatedly coming to the Board seeking relief from whatever ordinance is bothering them, and the Board responds by granting them a variation.  It has become the de facto way of allowing businesses to 'get away' with anything.

    Why is this a problem for you?  Zoning variations certainly do not allow the recipient of the variation to "get away with anything."  For example, a zoning variation cannot make it legal to operate a meth lab.

    Feel free to consult with a local real estate attorney or, simply, vote out the board members who are doing this and replace them with folks who are more to your liking.

  • Tue, Jan 17 2017 12:46 PM In reply to

    Re: Village Boards authorized to grant variations for ANYTHI...

    FJacob:
    A close example to our situation would be if there were an ordinance making the sale of cigarettes within 500 feet of a school unlawful.  The ordinance is not under the Zoning chapter, but a stand-alone chapter with no provisions for the allowance of variations of any kind.

    There's nothing illegal about that.  The executive branch of government always has discretion to enforce or not enforce the law, and the citizens' recourse if they don't like it is at the ballot box.

  • Tue, Jan 17 2017 1:05 PM In reply to

    • FJacob
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    Re: Village Boards authorized to grant variations for ANYTHI...

    Well yeah, but because there's four years in-between elections and a Board can do a lot of damage in that time, sometimes we're faced with pursuing other, more timely remedies.

  • Tue, Jan 17 2017 4:49 PM In reply to

    Re: Village Boards authorized to grant variations for ANYTHI...

    FJacob:

    Well yeah, but because there's four years in-between elections and a Board can do a lot of damage in that time, sometimes we're faced with pursuing other, more timely remedies.

    Is there a process available to recall Board members in between elections?  Just a thought.

    And no offense, but in your cigarette-sales example very little if any permanent damage is likely to occur due to Business ABC's ability to violate Ordinance XYZ for several years.  Certainly not compared to the damage that can be caused by allowing a big-box store to be built in an inappropriate location in violation of existing zoning laws.

     

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