Publications: Due Process in Zoning Hearings: Guidelines for Complying with the Supreme Court’s Mandate

To view the original article in PDF form, please click the Related Files link.  Reprinted with permission of the Illinois Bar Journal, Vol. 92 #2, February 2004. Copyright by the Illinois State Bar Association. www.isba.org 

An article in the July Journal¹ took the position that the recent decision by the Illinois Supreme Court in People ex rel Klaeren v Village of Lisle² would make zoning hearings more contentious and costly. But there is another view – that adhering to basic notions of fairness inherent in due process as outlined by the court need not make a zoning hearing more expensive and will actually lead to a more informed decision with less political controversy.³ This article takes that view.

On October 18, 1999, Judge Wheaton of the Circuit Court of DuPage County issued a memorandum opinion and order in People ex rel Klaeren v Village of Lisle, No. 99 CH 179, which was the beginning of a mini-revolution in Illinois zoning law. Municipal officials and their attorneys were in turmoil, and many still are, about how a public zoning hearing should be conducted.

The case ultimately reached the Illinois Supreme Court, and the consequences of the court’s decision are dramatic. The Illinois Supreme Court recognized that, at the very least, a hearing on a special-use application is administrative and not legislative, even if the village board or city council makes the final decision. This means that it is quasi-judicial, and objectors who have a right to appear and participate also have the right to examine and cross-examine witnesses.

In reaching this conclusion, the court considered several important issues and tried to provide guidelines and principles for administering the zoning process. Whether those principles are adequate remains to be seen, but clearly a major change has taken place.⁴ This article re-examines some of the fundamental issues involved in conducting a public hearing in a zoning case and suggests its own set of Klaeren-based guidelines for conducting zoning hearings.⁵

I. The Facts of Klaeren

Meijer, Inc. entered into a contract to purchase a 60-acre parcel to be annexed to the Village of Lisle. It applied for rezoning of the parcel from R-1 residential to B-2 commercial and for special uses for a planned unit development and for a gasoline service station. Notice of the public hearing was published and mailed to owners of property within 250 feet of the subject land. A joint public hearing of the village board, the plan commission, and the zoning board of appeals was convened at 7:30 p.m. on July 9, 1998, at the village hall and, because of the size of the crowd, was reconvened at the Lisle Jr. High School. At the meeting the mayor made the following
statement:⁶

Tonight is the public hearing phase of the process. This hearing is required by law. There will been [sic] no vote taken this evening other than to adjourn the public hearing.

After the hearing the Plan Commission and the zoning Board will each independently review the input from this evening.

Their first review will be at their next regularly scheduled meeting, approximately one month from now….[p. 22]

After those meetings and reviews the Plan Commission and the Zoning Board, which will each make independent recommendations to the Village Board. [sic] The Village Board will then undertake its review of the petitioner’s request and raise any questions it has...[p. 23; emphasis added].

This is a public hearing. It is not a debate. There will be no attempt at tonight’s hearing to answer any questions raised by the audience. Questions may be addressed during the review process I just described....[p. 24]

To be fair to everyone in the audience, I ask that you limit your comments to two minutes each. I will be the time keeper and will let you know when 15 seconds remain. [p. 26]

The public hearing then proceeded with a presentation by the applicant. The facts and the opinions suggest that the applicant’s presentation lasted approximately two hours and 20 minutes.

At 10:20 p.m. the public comment portion began and no fewer than 47 persons spoke at the public hearing, which ended after 11:30 p.m. On at least five occasions the chair cut off the speaker. On at least eight other occasions, the chair warned the speaker of the approaching two-minute deadline. In response to a question from an opponent of the project, the mayor advised that only a single representative would be allowed to speak on behalf of any group or organization and that the two-minute time limit would be enforced. The mayor further explained:

Rather than try and debate with you the procedure we are going to try and follow, I tried to explain at the beginning of the meeting. My instructions would give everyone who wants to speak or had a written comment an opportunity to be heard. I think that is fair. No matter what we do, it is going to be characterized as being unfair. That being the case, we are going to proceed with the suggestion I made.⁷

At the close of the public statements, the chair stated that “the record will remain open for written comments until 4:30 p.m. Friday, July 31, 1998. Written comments should be submitted... Copies of the comments received prior to that date will be made part of the public record….”⁸ Testimony before the circuit court on the hearing for preliminary injunction established that subsequent meetings of the plan commission and the zoning board of appeals were public meetings not public hearings and that no public participation was allowed. One of the witnesses at the preliminary injunction hearing testified that he wanted to ask questions at the public hearing but did not do so because the chair stated that there would be no questioning by the audience. Another witness testified that he attempted to bring posters of a Meijer Store in Indiana⁹ into the hearing room to show the joint boards but was prevented from doing so by a Lisle police officer.¹⁰

At the close of the evidence, the trial court entered a preliminary injunction enjoining the property owners and Meijer, Inc. “from taking any further action on the subject property pursuant to government approvals issued or enacted on or after February 15, 1999, by Defendant Village of Lisle, until further order of Court or until a proper public hearing is held pursuant to the statutes of the State of Illinois and its own ordinances.”¹¹ The Illinois Appellate Court affirmed the trial court and the Illinois Supreme Court affirmed both courts.

II. Who Has the Right to Appear?

One of the first questions the court addressed was who has the right to appear and cross-examine witnesses at a zoning hearing. A controversial zoning matter often brings a full house of residents to a hearing. It is not always clear which residents are there simply to observe, which have something to say, and which want to present evidence and examine and cross-examine witnesses. Trying to distinguish those who have a legal right to appear and present evidence from those who may not qualify under the technical rules of standing is a daunting task for a plan commission chair. The Illinois Supreme Court in Klaeren provided the following guidelines:

The Court in Yusuf held that a diminution in value and a loss in the quiet enjoyment of one’s property caused by additional traffic and noise created by a proposed special use was adequate to confer standing on adjoining property owners….The appellate majority in this case likewise held that any increase in noise, traffic or light pollution created by the development would affect the use and enjoyment of plaintiffs’ properties in a manner distinct in both quantity and quality from any injury suffered by the public as a whole. We agree with this conclusion.¹²

So what does this mean? Clearly, anyone who is required to receive notice by service, such as property owners within 250 feet of the subject property, has the right to appear. But property owners located even further away might claim that they would suffer some distinct problem related to noise, traffic, or light pollution different from that of the public in general. For example, the lights from a canopy of a new gasoline service station might shine in the windows of a home located more than 250 feet away from the subject property. To delay the hearing to elicit is simply not worth the time. The meeting will move faster if the objector is simply allowed to make a statement or ask a question.

Note that nothing in the Illinois Supreme Court’s opinion requires unfettered redundancy. Once the question has been asked and answered or a particular statement made, the chair need not permit others in the audience to ask the same question or make the same statement.

Therefore, even though the supreme court has provided some guidelines as to the measure of those with “a right to appear,” it is simply impractical and unnecessary to voir dire every single member of the audience who asks to speak^.13 The meeting will proceed more efficiently by applying the doctrines of reasonableness and common sense.

III. Legislative v Administrative Hearings – the Right to Cross Examine

The right to cross-examine, as well as other rights afforded an applicant and an objector at a zoning hearing, have both a statutory and a constitutional underpinning. As the Illinois Appellate Court pointed out in this case,¹⁴ the Illinois Municipal Code specifically grants a right of cross examination to property owners located within 250 feet of a special use in a municipality of more than 500,000 persons.¹⁵ The court reasoned that those sections may be implicitly read into the sections of the code that cover municipalities of fewer than 500,000.¹⁶

The appellate court then concluded, using a rationale the Illinois Supreme Court seemed to accept, that by providing more specific guidelines for the largest municipalities the legislature intended to give more flexibility, not less, to the remaining municipalities.¹⁷ Moreover, the appellate majority observed that it would be absurd to grant the right of cross examination to adjoining landowners in larger municipalities while providing only an illusory right to landowners in smaller municipalities.¹⁸

Note also that other sections address presenting evidence and the right to appear. For example, section 11-13-20 of the Illinois Municipal Code provides that “any school district within which the property in issue, or any part thereof, is located shall have the right to appear and present evidence” at any rezoning hearing.¹⁹ In addition, under section 11-13-18 of the Code “[a]ll testimony by witnesses in any hearing provided for in this Division 13 shall be given under oath.^”20 Many communities engage in mass “swearing in” ceremonies of everyone present and the very use of the terms “witnesses” and “testimony” and the presentation of evidence suggests strong support for this interpretation of the statutes.

IV. The Constitutional Right to Due Process in a Zoning Hearing

The Illinois Supreme Court, however, ultimately determined that for those who qualified as “interested parties,” a constitutional due process right is “normally granted to individuals whose property rights are at stake.”²¹ The court reached this conclusion by first determining that property rights were at stake, including the right to quiet enjoyment of ones’ property, then concluding that the zoning hearing concerning the special use petition was an administrative hearing where municipal bodies act in a quasi-judicial capacity.

The court referred to its decision in City of Chicago Heights v Living Word Outreach Full Gospel Church and Ministries, Inc.,²² where it recognized that “the clear weight of authority in the United States holds that a legislative body acts administratively when it rules on applications for special use permits....” In the Living Word case, the court did not have to decide whether the procedures were administrative or legislative but nonetheless discussed the matter at great length. It was now in Klaeren that the court squarely confronted the issue and stated the following:

Having been freshly and squarely presented with the question by the cause at hand, we now answer it by holding that municipal bodies act in administrative or quasi-judicial capacities when those bodies conduct zoning hearings concerning a special use petition.... To the extent any prior decisions of this court hold the contrary to be true, we now expressly overrule those decisions.²³

Having finally held that the hearing in question was administrative – a significant moment in Illinois zoning law – the court then had no problem concluding that the objectors were entitled to “due process” rights, including the right to cross examination:²⁴

The municipal body acts in a fact-finding capacity to decide disputed adjudicative facts based upon evidence adduced at the hearing and ultimately determines the relative rights of the interested parties. As a result, those parties must be afforded the due process rights normally granted to individuals whose property rights are at stake.25

The court further pointed out that the extent of those rights depends upon the purpose of the hearing, quoting the United States Supreme Court in Hannah v Larche:

“Due process” is an elusive concept. Its exact boundaries are undefinable, and its content varies according to specific factual contexts. Thus, when governmental agencies adjudicate or make binding determinations which directly affect the legal rights of individuals, it is imperative that those agencies use the procedures which have traditionally been associated with the judicial process.²⁶

However, the Klaeren court also noted that “due process is a flexible concept and requires only such procedural protections as fundamental principles of justice and the particular situation demand.”²⁷ In Klaeren, the supreme court concluded that the particular situation demanded more than what was afforded under the procedure set forth by the mayor:

The Plan Commission was considering Meijer’s proposed development plan and determining whether to recommend that plan to the village board. The zoning board was, likewise, assessing the special use and rezoning requests with an eye toward whether to recommend that the village board grant the requests. Since the joint procedure used by the village involved a special use request, it would be a denial of due process not to afford interested parties the right to cross-examine adverse witnesses.²⁸

V. The Supreme Court’s Instructions on Rules that Could Be Adopted by a Municipality in the Conduct of Hearings

The Illinois Supreme Court refers to the Illinois Appellate Court decision in Klaeren in an attempt to set forth hearing guidelines for municipalities.²⁹ They are as follow:

1. The municipality can adopt rules limiting the class of individuals allowed the right of cross-examination. This as stated earlier would be extremely difficult to enforce but one could certainly provide that everyone owning property located within 250 feet of the subject property would have the right. In trying to exclude persons from asking questions, a hearing officer or plan commission chair would run the risk of violating someone’s rights. It is an unnecessary waste of time.

2. The municipality can require those wishing to exercise the right of cross-examination to register in advance at the public hearing.

3. A municipality should be free to adopt reasonable limitations on the right of cross-examination suited to “local conditions” and what is “reasonable.” Obviously, the chair of the meeting does not need to allow questioning to become redundant or argumentative.

4. The municipality can limit cross-examination based on subject matter and identify those witnesses whose testimony will or will not be subject to cross-examination. The court states that factors to be considered are “whether the witness possesses special expertise, whether the testimony reflects a matter of taste or personal opinion or concerns a disputed issue of fact, and the degree to which the witness’s testimony relates to the factors to be considered in approving the proposal.”³⁰

5. The hearing officer or chair “could adopt rules specifying which factual issues are considered relevant to the decision and limiting cross examination to witnesses addressing those issues.”³¹

The foregoing are suggestions, not binding rules. What the Illinois Supreme Court had in mind was not to transform a zoning hearing before a plan commission or zoning board of appeals into a full-blown trial. The rules should not be confusing to the average person who somehow finds himself or herself appointed to a plan commission.

VI. Rules for Conducting a Hearing

What the Illinois Supreme Court requires is a hearing that encompasses the basic notion of “due process” and embodies the rules of “fair play.” In Klaeren, the fairness standard was not met because the objectors had only two minutes each to present their case, while the applicant took two hours and 20 minutes to present the expert testimony of its witnesses. Furthermore, the right to ask questions of witnesses, which is the equivalent of “cross examination,” is not overly burdensome. Here are some simple rules of procedure consistent with Klaeren.

1. First, determine whether any attorneys represent a group of objectors. If so, the attorney can serve as their spokesperson and present the evidence, whether in the form of testimony or written documents or exhibits, in the same manner that the petitioner presented its evidence. Indeed, a recent case raises the possibility that only attorneys will be allowed to present evidence.³²

2. Next, determine which objectors actually have evidence to present and the nature of the evidence. Some individuals might simply wish to make a statement. Others may wish to present witnesses and exhibits. Set reasonable limits for presenting this evidence. Fairness does not require redundancy.

3. Create an orderly presentation of evidence with the petitioner going first. It is probably best to allow questions of each witness after their presentation. If a question has already been raised, there is no need to allow a second objector to ask it again.

4. Give plan commission or zoning board members, or zoning committee and village board members where there is a joint hearing, a chance to ask questions during the initial presentation. A good approach is to allow the petitioner to finish presenting a particular witness, allow the objectors to ask questions, and then allow village officials to ask their questions.

5. When the petitioner has finished with its presentation, the chair should call upon the objectors to present their case, again giving the petitioner and village officials a chance to question any witnesses. If a hearing has to be continued to another date to allow for a full and fair presentation, then so be it.

6. Witnesses should testify under oath and exhibits should be clearly identified and entered into the record. For major presentations, such as one for a Meijer store, a court reporter should administer oaths and transcribe the testimony. While tape recorders should be permitted, they are not a good substitute. Often, testimony on a tape recording is not audible to someone (e.g., a judge on administrative review) seeking to understand what took place at the hearing.

7. For variations and special uses, there is a statutory requirement that there be findings of fact which refer to any exhibits.³³ Make sure the plan commission or zoning board votes to approve the findings of fact.

VII. Conclusion

Adhering to the foregoing standards will not prove onerous to any municipality. Doing so will provide for a full and fair hearing. The community should know all the facts about a proposed use, and the best way to learn about those facts is through the hearing process. Issues are raised during a full hearing that might not otherwise arise, and changes in a plan brought about through the crucible of this process provide for a better project that will better serve the community.

____________________________

¹. John J. Lawlor, Recent Rulings Could Make Illinois Zoning Hearings More Contentious and Costly, 91 Ill B J 340 (July 2003).

². People ex rel Klaeren v Village of Lisle, 202 Ill 2d 164, 781 NE2d 223 (2002).

³. In Klaeren, there was bitter controversy over whether or not a Meijer store should be developed on land to be annexed to the Village of Lisle. A majority of the board which supported the development was voted out of office at the next election following the decision to approve the annexation and rezoning.

^4. The Illinois Municipal League appointed a committee to review the Illinois Supreme Court decision and to make recommendations as to how to conduct public hearings. These recommendations were published in the April 2003 edition of the Illinois Municipal Review, “Recommendations for Conducting a Zoning Hearing Post-Klaeren Decision,” Vol. 82, No. 4, P. 19 (April 2003).

⁵. For an earlier version of these guidelines, see the author’s article in the online version of the Illinois Municipal Review, December 2000 issue, at advquery=Cope&infobase=review00&record={D21}&softpage=Doc_Frame_Pg>. 

⁶. People ex rel Klaeren v Village of Lisle, No. 99 CH 179, slip op at 2 (Cir Ct of DuPage Co., October 18, 1999).

⁷. Klaeren, 202 Ill 2d at 169, 781 NE2d at 226.

⁸. Klaeren, No. 99 CH 179, slip op at 3.

⁹. Id, plaintiffs’ exhibits 23, 24 and 25.

¹⁰. Id, slip op at 4.

¹¹. Id, slip op at 12.

¹². Klaeren, 202 Ill 2d at 176, 781 NE2d at 230 (citations omitted).

¹³. Id at 178-79, 781 NE2d at 231.

¹⁴. People ex rel Klaeren v Village of Lisle, 316 Ill App 3d 770, 781-782, 737 NE2d 1099, 1109-1110 (2d D 2000).

¹⁵. 65 ILCS 5/11-13-7, 11-13-7a(b).

¹⁶. 65 ILCS 5/11-13-1.1, Klaeren, 202 Ill 2d at 180, 781 NE2d at 232. The relevant text of section 7a of the Municipal Code, distinguishing the enumerated rights of property owners in municipalities with a population of more than 500,000 from those of property owners in municipalities of less than 500,000, is as follows: “Zoning variation and special use applicants and property owners, as set forth in Section 11-13-7 of this Act, shall have the following rights, in addition to any others they may possess in law, at any hearing before a board of appeals:

(a) to have subpoenas issued for persons to appear at board of appeals’ hearings and for examination of documents by the person requesting the subpoena either before or at board of appeals hearings subject to the limitations in this Section. * * *

(b) To cross examine all witnesses testifying.

(c) To present witnesses on their behalf.

Property owners within the terms of Section 11-13-7 who object to the zoning application or special use application may, upon request, be granted 1 continuance for the purpose of presenting evidence to rebut testimony given by the applicant. The date of such continued hearing shall be in the discretion of the board of appeals.

This amendatory act of 1973 is not a limit upon any municipality which is a home rule unit.” 65 ILCS 5/11-13-7a.

Section 11-13-1.1 provides: “A special use shall be permitted only after a public hearing before some commission or committee designated by the corporate authorities, with prior notice thereof given in the manner as provided in Section 11-13-6 and 11-13-7.” The general inclusion of 11-13-7 strongly suggests a legislative commitment to the process set forth in 11-13-7 as well as 11-13-7a.

¹⁷. Klaeren, 316 Ill App 3d at 781, 737 NE2d 1099.

¹⁸. Klaeren, 202 Ill 2d at 181, 781 NE2d at 233.

¹⁹. 65 ILCS 5/11-13-20.

²⁰. 65 ILCS 5/11-13-18.

²¹. Klaeren, 202 Ill 2d at 183, 781 NE2d at 234.

²². City of Chicago Heights v Living Word Outreach Full Gospel Church and Ministries, Inc., 196 Ill 2d 1, 749 NE2d 916 (2001).

²³. Klaeren, 202 Ill 2d at 183, 781 NE2d at 234.

²⁴. This right derives from the Constitution (whether of Illinois or United States) as distinguished from zoning legislation.

²⁵. Klaeren, 202 Ill 2d at 183, 781 NE2d at 234.

^26. Id at 184, 781 NE2d at 234, quoting Hannah v Larche, 363 US 420, 80 S Ct 1502, 1515.

²⁷. Klaeren, 202 Ill 2d at 184, 781 NE2d at 234, relying on Abrahamson v Illinois Dept of Professional Regulation, 153 Ill 2d 76, 92, 606 NE2d 1111, 1119 (1992).

²⁸. Klaeren, 202 Ill 2d at 185, 781 NE2d at 235.

²⁹. A committee of the Illinois Municipal League has also provided guidelines, which appeared in the April 2003 Illinois Municipal Review, and the author offered guidelines in his article in the December 2000 online issue of Illinois Municipal Review. See notes 4 and 5 above.

³⁰. Klaeren, 202 Ill 2d at 186, 781 NE2d at 236.

³¹. Id.

³². Recent interpretations of the Klaeren decision suggest at least two interesting byproducts that have not yet been fully discussed. In Oak Grove Jubilee Center, Inc. v City of Genoa, 338 Ill App 3d 967, 789 NE2d 836 (2d D 2003), the court considered a case pending on appeal at the time the Klaeren case was decided. The case involved a special use application for a church. Two interesting points:

(1) If the special use hearing is in the nature of an administrative hearing, may one take an administrative review of a decision of a village board? The statutes allow for administrative review where the final determination is made by the zoning board of appeals. (65 ILCS 5/11-13-13.) However, there is no comparable provision where the plan commission or zoning board simply acts as a recommending body and the final decision is made by the village board; and

(2) On a slightly different note, the court was presented with the argument that all of the applications and documents filed were void ab initio because the minister of the church, who acted on behalf of the church, was not an attorney. The general rule in Illinois is that “any legal document filed by a non-lawyer on behalf of another in a judicial or administrative proceeding is void ab initio. See Blue v People, 223 Ill App 3d 594, 596, 585 NE2d 625, 626 (2d D 1992). Therefore, zoning boards which are used to having architects, land planners, engineers, employees of some legal entity and simply friends of the individuals in question appear before them might now have to rethink their procedure. If this is an administrative proceeding, as stated by the supreme court, then representation by a non-lawyer might well be prohibited.

³³. 65 ILCS 5/11-13-11.

Reprinted with permission of the Illinois Bar Journal, Vol. 92 #2, February 2004. Copyright by the Illinois State Bar Association. www.isba.org