Posted by: Patricia Salkin | November 10, 2018

IL Appeals Court Says Illegal Use Becomes Legal Upon Annexation

This post originally appeared on the Municipal Minute Blog and is reposted with permission.  The original post appears here: http://municipalminute.ancelglink.com/2018/11/appellate-court-says-illegal-use.html

In a break from long-established precedent, the First District Appellate Court recently created a new category of legal nonconforming uses in situations involving the annexation of illegal uses.

In Giannakopoulos v. Adams, No.11 CH 17516 (Oct. 29, 2018), a municipality annexed property containing an excavation business that included the storing and servicing of commercial vehicles and equipment. No annexation agreement was entered into between the parties and the municipality did not rezone the property or grant zoning relief when it annexed the property to the municipality. The use was illegal at its inception in 1954 under the Cook County Zoning Code and remained an illegal use thereafter, first under county zoning and, upon annexation, under the municipality’s residential zoning designation.

In 2011, after being unsuccessful in getting the municipality to enforce its zoning regulations, a next door neighbor brought suit against the excavation business under the Adjoining Landowner Act, 65 ILCS 5/11-13-15, seeking to enjoin the operation of the illegal use.  The trial court ruled in favor of the plaintiff, holding that the municipality had no authority as a non-home rule unit of government to legalize the defendants’ use of their property unless it first complied with one of the three procedures set forth in the zoning statutes (map amendment, variance, or annexation agreement).

On appeal, the First District disagreed, holding that because the illegal use was “established” prior to annexation, it automatically became a legal nonconforming use “as-is” when the municipality annexed the property.  In other words, the appellate court found that annexation, in and of itself, can convert an illegal use into a legal use without the annexing authority needing to comply with state zoning laws.

A petition for leave to file an appeal with the Illinois Supreme Court has since been filed.

Giannakopoulos v. Adams, 2018 WL 5621664 (IL App. 10/29/2018)


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