This post comes courtesy of Patricia Salkin and her Law of the Land blog. I love chicken litigation…
Plaintiff, City of Sparta, a municipal corporation, brought an ordinance violation action against defendant, Tim Page, alleging that Page was conducting an unpermitted use in a residential district, contrary to the provisions of the local zoning ordinance. Defendant Page resides on a one and one-half acre tract of land within the city limits in an R–4 residential district as established by plaintiff’s zoning ordinance. He had been raising chickens for approximately four years on his property and considered his three chickens as pets, and did not use them for any commercial enterprise. The trial court found that raising pet chickens was not prohibited by the city code; because Page’s activities were not commercial in nature, they did not constitute agricultural use. Plaintiff appealed contending that the court’s decision was against the manifest weight of the evidence and contrary to law.
Here, the court found that the primary use of Page’s property was residential since Page and his wife lived in the house on the property as part of their normal everyday life. Moreover, normal incidental uses of residential homes and property include having pets. While other provisions of the zoning code specifically prohibited swine, cattle, horses, mules or game birds within residential neighborhoods, the court noted that a chicken was not a game bird. Because chickens were not specifically prohibited, and no commercial agricultural use pertaining to the chickens was established, Page’s owning of and keeping three pet chickens on his property was held to not constitute agricultural use as contemplated by the zoning code. Accordingly, the chickens were found to be an incidental permitted use of the property, and the holding of the trial court was affirmed.
City of Sparta v. Page
Illinois Court of Appeals, October 22, 2015
by Hannah Dankbar
Gurba v. Community High School District No. 155
Illinois Supreme Court, September 24, 2015
Crystal Lake South High School is located in the municipality of Crystal Lake, Illinois. The area around the school is zoned as single-family residential (R-2). The school exists as a legal nonconforming use in this area. In 2013 the school decided to build bigger bleachers at the football stadium that are closer to the property line than the old ones. They applied for permits through McHenry County Regional Superintendent of Schools, but not through the City. The City told the school to stop construction until they obtained a special-use permit, a storm water permit and zoning variances. The school ignored this order on the grounds that the construction is for school purposes and therefore is not subject to municipal zoning. Three residential property owners in the area also brought suit against the school to enforce the zoning code.
This case raises the question of whether municipal zoning ordinances govern the construction of football stadium bleachers on school property.
The School Board argued that school construction is not subject to local zoning because the School Code limits a municipality’s review of construction plans. The School Board argues for an interpretation of section 10-22.13a of the School Code – which authorizes a school board “[t]o seek zoning changes, variations, or special uses for property held or controlled by the school district” – in a manner that means that schools are not subject to local zoning.
These arguments failed when presented to the Illinois Supreme Court. The General Assembly for the state chose to make certain entities exempt from municipal zoning ordinances, but no specific restrictions on the authority of a municipality to regulate zoning or storm water management on school property. This means that under strict interpretation of the law the school property is subject to municipal zoning laws. A municipality has the power to develop regulations that “undoubtedly pertain to local affairs.” Actually section 10-22.13a suggests that the General Assembly intended for schools to fall under local zoning ordinances.
Because there is evidence from the General Assembly and the School Code that suggests that schools are intended to fall under local zoning regulations, and there is no statute explicitly limiting the municipality’s zoning powers, the Court determined that it is within the City’s zoning powers to impose their ordinances on the school.