Posted by: Patricia Salkin | September 1, 2021

IL Appeals Court Finds Automobile Dealership Was Entitled to Reestablish a Special Use Under Applicable Zoning Code

This post first appeared on the Municipal Minute Blog by AncelGlink and it is reposted with permission.

In 2018, Pumilia purchased a property in Rockford that had previously been used for a used car dealership, intending to operate a similar business on the lot. He bought the property, obtained insurance, improved the parking lot, and ordered signs for the new business. When the sign company filed an application for a sign permit with the City, it triggered a City zoning review. Shortly thereafter, the City informed Pumilia that the previously issued special use permit to allow a used car dealership had lapsed under the City’s ordinance because the used car business had not been operated for 12 months or more. City staff informed him that he would have to apply for a new special use permit, which he subsequently did. However, both the ZBA and City Council denied the special use request, and he sued.

In his lawsuit against the City, Pumilia claimed that the special use permit to operate the used car lot was re-established based on City staff’s actions and that he was entitled to monetary damages for the City’s actions. The trial court ruled in his favor, finding that the special use was not abandoned and awarding Pumilia his court costs as well as damages for his $2,500 business bond and $5,868 that he incurred for vehicle storage. 

The City appealed, and the appellate court upheld the ruling on the special use but vacated the award of damages.

First, the appellate court determined that although the property was not used as a used car lot for more than 12 months, Pumilia had “reestablished” the special use when he applied for a new special use and when City staff issued positive findings of fact on the special use, which the appellate court determined was expressly provided for in the zoning code. Specifically, the appellate court cited the provision in the zoning code that allowed a property owner to reestablish a special use if staff provides a positive review on six findings of fact.

On the issue of damages, the appellate court rejected the trial court’s award, finding that the City was clearly entitled to immunity from damages under the Tort Immunity Act. The appellate court rejected Pumilia’s argument that he was entitled to damages because City staff acted “willfully or maliciously,” finding that because City staff’s determination in this case was discretionary, it did not affect the immunity afforded to the City under the Tort Immunity Act.

Pumilia v City of Rockford, 2021 IL App. (2d) 200681-U (7/26/2021)

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