Are Illinois public school districts subject to the local zoning ordinances of the cities and counties they sit in?

Plain-English summary

The State Superintendent of Education asked the AG whether Illinois public school districts have to follow local zoning rules when they buy property, build schools, or expand existing facilities. The question came up because school districts, municipalities, and counties had been sparring across the state over which level of government got the final word on land use.

Attorney General Lisa Madigan concluded that the answer is yes, with one significant qualification: school districts are generally subject to local zoning ordinances, but they are not powerless if a local ordinance is being administered in a way that frustrates the district's statutory mission. The procedural answer was that a district that thinks compliance would actually block it from carrying out its educational responsibilities should not simply ignore the ordinance. Instead, it should challenge the ordinance in the circuit court, which can decide whether the application of the ordinance unduly interferes with the district's statutory duties.

The opinion drew that framework from Wilmette Park District v. Village of Wilmette, 112 Ill. 2d 6 (1986), where the Illinois Supreme Court rejected the idea that a park district could simply refuse to participate in zoning hearings because of its own statutory authority. The same cooperation principle, the AG concluded, applies to school districts. The opinion also pointed to section 10-22.13a of the School Code, which authorizes school boards to "seek zoning changes, variations, or special uses for property held or controlled by the school district." The AG read that grant as confirmation that districts are subject to local zoning in the first place; otherwise, the authorization to seek zoning relief would be surplus.

Currency note

This opinion was issued in 2011. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: What did "subject to local zoning" actually mean for a school district under this opinion?
A: At the time of the opinion, a school district could not unilaterally decide that its statutory authority overrode a local zoning ordinance. It needed to apply for permits, special uses, and variations like other property owners. The exception was when compliance with a particular ordinance would frustrate the district's statutory objectives, in which case the district's remedy was judicial review of the application of that ordinance, not self-help.

Q: Did this rule apply to home-rule cities and counties differently than to non-home-rule ones?
A: The AG noted that home-rule units derive zoning authority from article VII, section 6 of the Illinois Constitution and that no statute expressly limited home-rule zoning power over school districts at the time. Non-home-rule units have only the zoning authority granted by statute (sections 5-12001 et seq. of the Counties Code and 11-13-1 et seq. of the Municipal Code). The opinion concluded that under either source of authority, school districts were generally bound by valid local zoning.

Q: What kinds of factual disputes did the AG say it could not resolve?
A: Whether a particular zoning rule, applied to a particular school project, would unduly interfere with that district's educational mission. The opinion identified that as a fact question for the circuit court, not for an AG opinion. The AG opinions process is not designed to evaluate site-specific evidence or competing factual showings.

Q: Where did the "frustration of statutory purpose" exception come from?
A: Mostly from a line of Illinois cases involving sanitary districts, park districts, library districts, and similar local-government units. The AG cited Wilmette, City of Des Plaines v. Metropolitan Sanitary District, Lake County Public Building Comm'n v. City of Waukegan, and Village of Swansea v. County of St. Clair, among others. The cases consistently held that local-government units must cooperate with local zoning unless compliance would block them from carrying out their statutory functions.

Q: What about the Chicago Public Schools, which the question mentioned specifically?
A: The opinion observed that Chicago public schools are subject to the City of Chicago zoning code, citing federal litigation involving the Public Building Commission of Chicago and a magnet high school. The AG concluded that the same principle that applied in Chicago applied to school districts elsewhere in the state.

Background and statutory framework

Counties get their zoning authority from section 5-12001 of the Counties Code, which authorizes county boards to adopt zoning ordinances regulating land use within unincorporated areas. Municipalities get parallel authority under section 11-13-1 of the Municipal Code, with extraterritorial reach for up to one and a half miles outside corporate limits when no county comprehensive zoning ordinance exists. Both regimes provide for permits, variations, and special-use procedures, and both create the right of the school district to appear and be heard at zoning hearings.

Home rule is a separate channel of authority. Article VII, section 6 of the 1970 Illinois Constitution lets a home-rule unit "exercise any power and perform any function pertaining to its government and affairs," subject to limits the General Assembly may impose by law. Illinois courts have treated home-rule zoning ordinances as valid exercises of that power.

School districts derive their authority from article 10 of the School Code. Section 10-1 covers boards of directors; section 10-10 covers boards of education; section 10-20 enumerates the broader school-board powers. Sections 10-22.35A, 10-22.36, and 10-22.36A authorize districts to acquire sites, construct buildings, and build access roads. Section 10-22.13a, the linchpin of this opinion, authorizes school boards to "seek zoning changes, variations, or special uses for property held or controlled by the school district." The AG construed that authorization as presupposing that districts are subject to local zoning in the first place.

The judicial gloss came primarily from Wilmette Park District v. Village of Wilmette. There, a park district had refused to participate in a special-use zoning hearing for a planned park expansion. The Illinois Supreme Court rejected that refusal, holding that absent an explicit statutory grant of immunity, a unit of local government does not have a free pass on its host municipality's zoning ordinances. But the court also held that intergovernmental cooperation runs both ways: if the host municipality administers the ordinance arbitrarily or in a way that frustrates the other unit's statutory purposes, the disadvantaged unit can seek judicial review.

That two-way cooperation principle is what the AG carried over to school districts. The result is that an Illinois school district at the time of the opinion did not have an automatic exemption from local zoning, but it also was not stuck with a zoning ordinance that effectively blocked it from performing its educational mission. The dispute resolution mechanism was the circuit court, applying a fact-specific frustration-of-purpose inquiry.

Citations and references

Statutes and constitutional provisions (as cited in the opinion):
- 55 ILCS 5/5-12001 (county zoning)
- 55 ILCS 5/5-12007, 5-12008, 5-12009, 5-12009.5 (county zoning details)
- 55 ILCS 5/5-12019 (school district appearance right)
- 65 ILCS 5/11-13-1, 11-13-1.1, 11-13-4 et seq. (municipal zoning)
- 65 ILCS 5/11-13-20 (municipal school district appearance right)
- 105 ILCS 5/10-1, 10-10, 10-20, 10-22.13a, 10-22.35A, 10-22.36, 10-22.36A (School Code)
- Ill. Const. 1970, art. VII, §§ 6, 7, 8
- Public Acts 97-336, 97-496, 97-542

Cases:
- Wilmette Park District v. Village of Wilmette, 112 Ill. 2d 6 (1986)
- City of Des Plaines v. Metropolitan Sanitary District of Greater Chicago, 48 Ill. 2d 11 (1971)
- Heft v. Zoning Board of Appeals of Peoria County, 31 Ill. 2d 266 (1964)
- Decatur Park District v. Becker, 368 Ill. 442 (1938)
- Redmond v. Novak, 86 Ill. 2d 374 (1981)
- Heidenreich v. Ronske, 26 Ill. 2d 360 (1962)
- Scadron v. City of Des Plaines, 153 Ill. 2d 164 (1992)
- Lake County Public Building Comm'n v. City of Waukegan, 273 Ill. App. 3d 15 (1995)
- County of Lake v. Semmerling, 195 Ill. App. 3d 93 (1990)
- State of Illinois Medical Center Comm'n v. Peter Carlton at Ogden & Oakley, Inc., 169 Ill. App. 3d 769 (1988)
- Village of Swansea v. County of St. Clair, 45 Ill. App. 3d 184 (1977)
- Condominium Ass'n of Commonwealth Plaza v. City of Chicago, 399 Ill. App. 3d 32 (2010)
- Dunlap v. Village of Schaumburg, 394 Ill. App. 3d 629 (2009)
- Lutheran Social Services of Illinois v. County of Henry, 124 Ill. App. 3d 753 (1984)
- DeLuna v. Burciaga, 223 Ill. 2d 49 (2006)
- Illinois Department of Healthcare & Family Services v. Warner, 227 Ill. 2d 223 (2008)
- Kean v. Wal-Mart Stores, Inc., 235 Ill. 2d 351 (2009)
- City of Canton v. County of Fulton, 11 Ill. App. 3d 171 (1973)

Source

• Landing page: https://illinoisattorneygeneral.gov/opinions/
• Original PDF: https://illinoisattorneygeneral.gov/dA/b2293d85bf/2011%2011-005%20ZONING%20Applicability%20of%20Municipal%20and%20County%20Zoning%20Ordinances%20to%20School%20Districts.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL
STATE OF ILLINOIS

Lisa Madigan
ATTORNEY GENERAL

December 23, 2011

FILE NO. 11-005

ZONING:
Applicability of Municipal and County Zoning Ordinances to School Districts

Christopher A. Koch, Ed.D.
State Superintendent of Education
Illinois State Board of Education
100 North First Street
Springfield, Illinois 62777-0001

Dear Superintendent:

I have your letter inquiring whether Illinois public school districts are subject to either municipal or county zoning ordinances. For the reasons stated below, it is my opinion that public school districts are subject to municipal and county zoning ordinances, except to the extent that compliance with local zoning would frustrate a school district's statutory objectives. If a school district is aggrieved by a local zoning decision, it may seek judicial review in the circuit court.

BACKGROUND

According to the information that you have provided, school districts, municipalities, and counties throughout Illinois are often at odds with respect to the application of local zoning ordinances. Your letter explains that "the Chicago public schools are subject to the zoning code for the City of Chicago[.]" See No. 93-C-4328 (N.D. Ill. December 23, 1994) 1994 WL 716300 (1994) (considering whether the Public Building Commission of Chicago, the Chicago Board of Education, and the City of Chicago engaged in intentional racial discrimination by, among other things, placing certain restrictions and conditions on the expansion of a Chicago magnet high school through a zoning ordinance amendment approved by the Chicago City Council). You have asked, however, whether the same principle applies to school districts located within other municipalities and counties.

ANALYSIS

Non-Home-Rule Counties' and Municipalities' Zoning Authority

It is well established that non-home-rule counties (Redmond v. Novak, 86 Ill. 2d 374, 382 (1981); Heidenreich v. Ronske, 26 Ill. 2d 360, 362 (1962); Lutheran Social Services of Illinois v. County of Henry, 124 Ill. App. 3d 753, 754 (1984)) and non-home-rule municipalities (Scadron v. City of Des Plaines, 153 Ill. 2d 164, 174 (1992)) possess only those powers that the constitution or statutes expressly grant to them, together with any powers that are necessarily implied therefrom to effectuate the powers which have been expressly granted. Ill. Const. 1970, art. VII, § 7. Section 5-12001 of the Counties Code (55 ILCS 5/5-12001 (West 2010)) authorizes county boards to adopt zoning ordinances (see 55 ILCS 5/5-1004 (West 2010)) and section 11-13-1 of the Illinois Municipal Code (the Municipal Code) (65 ILCS 5/11-13-1 (West 2010), as amended by Public Act 97-496, effective August 22, 2011) authorizes municipal corporate authorities to do the same. The Counties Code and Municipal Code do this by, among other things, granting counties and municipalities the authority: (1) to regulate and restrict the location and use of buildings, structures, and land; (2) to establish building or setback lines on or along any street, trafficway, drive, parkway, or storm or floodwater runoff channel or basin in the appropriate circumstances; (3) to divide the territory under their jurisdictions into districts of different classes, according to the use of land and buildings; and (4) to prohibit uses, buildings, or structures incompatible with the character of the districts.

A county zoning ordinance may include "appropriate regulations" to be enforced within the various districts created by the zoning ordinances (55 ILCS 5/5-12007 (West 2010)), and may require applications for permits to erect buildings or structures in any class or classes of districts (55 ILCS 5/5-12008 (West 2010)). Further, zoning boards of appeals may issue variations to county zoning regulations in instances in which there are practical difficulties or particular hardships in carrying out the strict letter of the regulations. 55 ILCS 5/5-12009 (West 2010). A county board may also provide for "special uses" upon public hearing conducted by a board of appeals. 55 ILCS 5/5-12009.5 (West 2010).

In addition to regulating the territory within their corporate limits, municipalities may extend their regulations to the contiguous territory within one and one-half miles of their corporate boundaries, as long as that territory is not included within another municipality. 65 ILCS 5/11-13-1 (West 2010), as amended by Public Act 97-496, effective August 22, 2011. If the county in which the municipality is situated adopts a comprehensive zoning ordinance of its own, however, the municipality's zoning authority is restricted to its corporate limits. 65 ILCS 5/11-13-1 (West 2010); see City of Canton v. County of Fulton, 11 Ill. App. 3d 171 (1973). Like counties, municipalities may provide for special uses (65 ILCS 5/11-13-1.1 (West 2010), as amended by Public Act 97-336, effective August 12, 2011) and variations from zoning regulations (65 ILCS 5/11-13-4 et seq. (West 2010)).

Although section 5-12019 of the Counties Code (55 ILCS 5/5-12019 (West 2010)) and section 11-13-20 of the Municipal Code (65 ILCS 5/11-13-20 (West 2010)) provide that school districts shall have the right to appear and present evidence at zoning commission, board of appeals, or other authorized zoning hearings in prescribed circumstances, there is no statutory provision that either expressly subjects or expressly exempts school districts from compliance with municipal or county zoning ordinances.

Home Rule Counties' and Municipalities' Zoning Authority

Home rule units derive their powers from article VII, section 6, of the Illinois Constitution of 1970. Section 6 empowers a home rule unit to "exercise any power and perform any function pertaining to its government and affairs[,]" except to the extent that home rule powers may be limited pursuant to section 6. The Illinois courts have recognized home rule zoning ordinances as a valid exercise of home rule authority. Condominium Ass'n of Commonwealth Plaza v. City of Chicago, 399 Ill. App. 3d 32, 41 (2010), appeal denied, 236 Ill. 2d 552 (2010); Dunlap v. Village of Schaumburg, 394 Ill. App. 3d 629, 644 (2009), appeal denied, 235 Ill. 2d 587 (2010). There is no statutory provision that expressly limits a home rule unit's exercise of its zoning authority with regard to school districts.

School Code

As with non-home-rule units of local government, school districts are also limited to the exercise of those powers expressly granted to them by the Constitution or by statute together with those necessarily implied therefrom. Ill. Const. 1970, art. VII, § 8. The School Code (105 ILCS 5/1-1 et seq. (West 2010)) sets out the powers of school boards of directors (105 ILCS 5/10-1 (West 2010)) and boards of education (105 ILCS 5/10-10 (West 2010)) (collectively referred to as "school boards"). Under the School Code, school boards are authorized: to "buy sites for buildings for school purposes[,] . . . to buy sites and facilities for school offices[,] . . . [and] [t]o take and purchase the site for a building for school purposes either with or without the owner's consent by condemnation or otherwise" (105 ILCS 5/10-22.35A (West 2010)); to "build or purchase a building for school classroom or instructional purposes" with referendum approval (105 ILCS 5/10-22.36 (West 2010), as amended by Public Act 97-542, effective August 23, 2011); and to "lay out and construct any access road necessary to connect school grounds, on which a new school is being or is about to be constructed, with an improved road or highway." 105 ILCS 5/10-22.36A (West 2010). In exercising their authority, section 10-22.13a of the School Code (105 ILCS 5/10-22.13a (West 2010)) provides that school boards may "seek zoning changes, variations, or special uses for property held or controlled by the school district." Further, section 10-20 of the School Code (105 ILCS 5/10-20 (West 2010)) provides:

The school board has the powers enumerated in the Sections of this Article following this Section. This enumeration of powers is not exclusive, but the board may exercise all other powers not inconsistent with this Act that may be requisite or proper for the maintenance, operation, and development of any school or schools under the jurisdiction of the board. This grant of powers does not release a school board from any duty imposed upon it by this Act or any other law. (Emphasis added.)

The primary purpose of statutory construction is to ascertain and give effect to the intent of the General Assembly. Illinois Department of Healthcare & Family Services v. Warner, 227 Ill. 2d 223, 229 (2008). Legislative intent is best evidenced by the language used in statutes. DeLuna v. Burciaga, 223 Ill. 2d 49, 59 (2006). If statutory language is clear and unambiguous, it must be given effect as written. DeLuna, 223 Ill. 2d at 59. Further, a statute should be construed, if possible, so that no word is rendered meaningless or superfluous. Kean v. Wal-Mart Stores, Inc., 235 Ill. 2d 351, 368 (2009).

Under the plain and unambiguous language of section 10-22.13a, school boards are expressly authorized to "seek zoning changes, variations, or special uses for property held or controlled by the school district." This express grant of authority to seek zoning changes, variations, and special uses would be unnecessary if school property was not subject to local zoning ordinances in the first instance. To conclude otherwise would render section 10-22.13a completely superfluous. Further, as previously noted, nothing in the School Code, the Counties Code, or the Municipal Code expressly exempts school boards and the districts that they represent from compliance with local zoning regulations. In contrast, section 10-20 of the School Code provides that school boards remain subject to those duties imposed upon them by other statutory or constitutional provisions. These other duties include those imposed by section 5-12001 of the Counties Code, section 11-13-1 of the Municipal Code, or as an exercise of a county's or municipality's home rule authority. Accordingly, it is my opinion that, as a general principle, school districts are subject to applicable county and municipal zoning ordinances.

Having concluded that school districts are generally required to comply with local zoning requirements, it must also be determined whether there are any limitations on a county's or municipality's exercise of its zoning authority with regard to school districts. As discussed below, the pertinent case law suggests that a local governmental entity should comply with the zoning regulations of its host governmental entity unless doing so would frustrate the statutory objectives of the local governmental entity.

In opinion No. 91-027, issued July 26, 1991 (1991 Ill. Att'y Gen. Op. 59), this office was asked to determine whether a public library district could construct a library building on property it owned that was located within its territorial limits without regard to county zoning regulations. The opinion concluded that the library district could choose to locate its library without complying with county zoning ordinance classifications, but must comply with zoning regulations relating to the operation of the facility, unless compliance with those regulations would frustrate the fundamental purposes of the library district. In reaching this conclusion, the opinion discussed the pertinent case law and Attorney General opinions, then focused on Wilmette Park District v. Village of Wilmette, 112 Ill. 2d 6 (1986).

In Wilmette, the Illinois Supreme Court considered whether park districts are exempt from municipal zoning ordinances that could affect park operations. The case arose when the village called for a zoning board hearing regarding the park district's planned expansion of a park, including the addition of more territory and the material expansion of lighting and lighted, nighttime activities at the park. The park district refused to participate in the special use hearing. Wilmette, 112 Ill. 2d at 13. In reaching its decision, the Court "recognize[d] the significant competing interests and statutory authority of the park district and the village." Wilmette, 112 Ill. 2d at 13. In the absence of an explicit statutory grant of immunity, however, the Court found that the mere fact that the park district had the statutory authority to operate its parks did not mean that the park district could disregard the zoning ordinances of its host municipality. Wilmette, 112 Ill. 2d at 14-15. The Court reasoned that the best way to reconcile the competing interests of the village and the park district was for the park district to participate in a special use hearing before the village zoning board, as this cooperation would be "all to the benefit of the community which both government units serve." Wilmette, 112 Ill. 2d at 18. The Court was careful to note, however, that intergovernmental cooperation is a two-way street; if the village were to administer its zoning ordinance in an unreasonable, arbitrary, or discriminatory manner to thwart or frustrate the park district's statutory duties, its actions would be subject to further judicial review. Wilmette, 112 Ill. 2d at 19.

Thus, the Court struck a balance between the objectives of the village in administering its zoning code and the park district in operating its parks by acknowledging that the park district was subject to the zoning code, but providing for recourse in the event that the village's administration of this code frustrated the park district's statutory duties. This resolution gave effect to the statutory objectives of each public entity to the greatest extent possible. As the Court stated, "the means for achieving cooperation between independent units of local government having competing interests or overlapping responsibilities cannot be reduced to a rigid mathematical formula. Each case must be decided on its particular facts." Wilmette, 112 Ill. 2d at 17.

Cases since Wilmette have reaffirmed its cooperation principle, requiring units of local government to adhere to local land use regulations when possible without frustrating the entities' statutory objectives. See, e.g., City of Des Plaines v. Metropolitan Sanitary District of Greater Chicago, 48 Ill. 2d 11, 14-15 (1971); Lake County Public Building Comm'n v. City of Waukegan, 273 Ill. App. 3d 15, 23-24 (1995); County of Lake v. Semmerling, 195 Ill. App. 3d 93, 96-100 (1990), appeal denied, 132 Ill. 2d 546 (1990); State of Illinois Medical Center Comm'n v. Peter Carlton at Ogden & Oakley, Inc., 169 Ill. App. 3d 769, 778 (1988); Village of Swansea v. County of St. Clair, 45 Ill. App. 3d 184, 187 (1977).

Based on the statutes and case law, it is my opinion that a school district is generally subject to local zoning regulations. If compliance with the local zoning ordinances would unduly interfere with or otherwise frustrate the achievement of the school district's statutory objectives, then the school district may seek judicial relief. Whether the application of a specific zoning requirement to a school district would unduly interfere with the district achieving its statutory objectives presents a question of fact that cannot be resolved in a legal opinion of the Attorney General.

You have posed two scenarios in your letter and asked whether the school districts in those scenarios would be subject to local zoning regulation. Whether compliance with local zoning regulations would interfere with the school districts' statutory purposes in the scenarios you have posed requires the resolution of questions of fact. If a school district contends that compliance with the municipal zoning ordinances would interfere with or otherwise frustrate the school districts' statutory purposes, it should seek judicial review in the circuit court.

CONCLUSION

It is my opinion that school districts are generally subject to local zoning ordinances. To the extent possible, therefore, a school district is required to comply with a county's or municipality's local zoning ordinances. If the local zoning ordinances interfere with or otherwise frustrate the school district's statutory objectives, however, then the school district should seek judicial review of the application of the ordinance in question.

Very truly yours,

LISA MADIGAN
ATTORNEY GENERAL