RECENT LITIGATION

By THOMAS W. KELTY, Chief Counsel, Illinois Municipal League

I. TO ZONE OR NOT TO ZONE
Wilmette Park District v. Village of Wilmette

In this litigation, the Illinois Supreme Court was asked whether a park district is subject to the zoning ordinances of an Illinois municipality.

In 1983, the park district acquired by lease from the municipality, a parcel of land immediately adjacent to an existing park, also leased from the village. Subsequent to the acquisition, the district decided to reconfigure the facilities in the existing park and to upgrade the quality of the facilities.

In leasing the property from the village, the park district agreed to several conditions in the lease which ultimately became issues that were litigated by the parties. First, the lease provided that the park district was allowed to make improvements to the consolidated parcels which included "utilities and lighting." Additionally, the lease provided that the park district was authorized to make improvements to the parcel without the consent of the village. Finally, the disputed portions of the lease provide that the lease did not affect the obligations of the parties to comply with the zoning ordinance of the Village of Wilmette.

Pursuant to the lease, the park district began making improvements to the new park. One of the improvements was the reconfiguration of softball fields in the park, removal of existing lighting for night play, and installation of replacement lighting fixtures. Prior to installation, the park district obtained an electrical permit from the village which the village contends was issued based upon representations by the park district that the replacement lights would be "no more intense or glaring than the lights they were to replace, and that none of the new lights would exceed sixty feet in height."

After the issuance of the permit, the village, as the owner of the lands, applied to its zoning board of appeals (ZBA) for a special use permit to allow the additional area to be used as park. Prior to the ZBA hearing, the park district nearly completed installation of the new lights. The new lights were mounted on eight towers ranging in height from 65 1/2 feet to 68 1/2 feet compared to the previous seven towers of 60 feet. Additionally, the light provided by the new fixtures was substantially greater than that previously available.

At the ZBA hearing, residents of the village, living near the park, appeared to complain about the new larger and brighter fixtures that had been installed by the park district. After the board chairman ruled that the testimony regarding the new lights was not relevant to the special use permit application, the ZBA recommended to the village board that the special use permit be issued.

Subsequently, the village board decided that the consolidated parcel should be treated as a single entity for zoning purposes and refiled a new special use application covering the entire park in order to allow consideration of the lighting issue. Contrary to its position in the previous hearing, the park district advised the village officials that it would not participate in the ZBA hearing on the new application. Several meetings between the park district and the village failed to resolve the conflict, and thereafter the park district filed this action.

In this action the park district alleged that, as a unit of government, it was not subject to the zoning ordinances of the village. At the trial level, the court entered a declaratory judgment in favor of the park district. On appeal, the Appellate Court reversed the decision of the trial court.

Chief Justice William G. authored the opinion for the Illinois Supreme Court and began by taking note of the problematic nature of the Case.

"We recognize the significant competing interests and statutory authority of the park district and the village. On the one hand, it is undisputed that the installation of lights at Howard Park is a proper park purpose under the Park District Code. On the other hand, the Illinois Municipal Code authorizes all municipalities, home rule or otherwise, to adopt zoning ordinances which divide the entire municipality into zoning districts, and that special use categories may include public and quasi-public uses 'affected with the public interest.'"

Following these initial observations, the court in reviewing the arguments presented by the parties, including the Illinois Municipal League as arnicus curiae, specifically addresses three issues raised by the park district.

First, the park district contends that when there is a conflict between two units of local government the powers of each are to be given the fullest effect possible. The district argued that an implied immunity from zoning ordinances was granted to park districts by the legislature in its enactment of the park district code. In rejecting the argument. Justice Clark notes that

"[T]he General Assembly has not granted park districts the exclusive authority to operate parks . . . absent art explicit statutory grant of immunity, the mere fact that the park district, a local unit of government, has a statutory duty to operate its parks cannot be extended to support the inference that it

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can exercise its authority without regard to the zoning ordinances of its host municipality."

The second argument advanced by the park district asserted that the Appellate Court decision altered the status of independent park districts and co-existing municipal government contrary to prior case law. In support of its position, the park district cited four cases which in the park district's view, reinforced its position. The court rejects the argument noting that none of the cases cited addressed the narrow issue whether the park district is exempt from the zoning ordinance of its host municipality which does not prohibit use of land by the park district but requires that the use be the subject of a special use permit.

Finally, the park district cites the case of Clement v. O'Malley which held that the Chicago Park District would have to comply with zoning ordinances to the extent that those ordinances did not interfere with the park district's statutory purpose in maintaining its parks. The Wilmette Park District contended that the Appellate Court had incorrectly applied this holding and thereby ruled against the district. Justice Clark chastises the park district for its misunderstanding and misapplication of the ruling in Clement calling it a "gross misinterpretation" and rejects its argument without further comment.

In concluding the opinion, Justice Clark states his belief that the Appellate Court had the right idea in suggesting the solution to the problem. He points out that there was no evidence presented in the case that a special use permit would not be granted by the Village. In fact, the refusal of the park district to participate in the hearing on the special use permit application prevented the matter from achieving a final factual resolution. Noting that a municipality has an interest in the impact that nighttime sports programming could have on the surrounding neighborhoods. Justice Clark suggests that, "because the instant case involves potentially significant expansion of a park, which is a special use, a special use hearing is both necessary and desirable."

Finally, Justice Clark firmly, but quietly, warns the village of potential future consequences of its actions. "Intergovernmental cooperation is, of course, a two way street. We are mindful that only so long as the village zoning ordinance is established and administered reasonably, and legal recourse is available if this is not the case, will the parties be well served by their participation in the special use hearing. Should the village administer its zoning ordinance in an unreasonable, arbitrary or discriminatory manner in denying the park district a special use permit or otherwise abuse its zoning power to thwart or frustrate the park district statutory duties, its actions will be subject to further judicial review."

This opinion of the Supreme Court has clearly placed park districts within the jurisdiction of municipal zoning ordinances. But the language of Justice Clark's opinion makes clear that the power has limits and may not be used to "thwart" the statutory duties of a park district.

II. MANDATING MANDATES
Board of Education of Main Township v. State Board of Education

This action decided in the First District Appellate Court is best described by the first statement of Justice Michael Bilandic, "this is the first judicial test of the State Mandates Act."

Factually, the Case is relatively simple. The plaintiffs, fifteen school districts, requested that the Court declare Public Act 83-913 void for two reasons. First, they asserted that the legislation was void because its "fiscal note" was not prepared in accordance with the State Mandates Act. Second, in their view, the Act was unenforceable under the State Mandates Act because the legislature had failed to make available appropriations to reimburse the school districts for the costs of complying with the Act. The Act in question required the school districts to raise the salaries of their "certified school nurses" to parity with certified teachers' salaries.

Although factually simple, the action is legally complex and requires a review of the State Mandates Act as a starting point.

Briefly stated, the State Mandates Act (the "Act") provides that the state must reimburse units of local government, including school districts, for their increased costs caused by state laws creating new programs or expanding existing ones. The history and rationale behind the Mandates Act can be gleamed the statements of Justice Bilandic in his opinion.

"Prior to 1981, special interest groups would lobby the State legislature to require local governments to provide new or expanded programs or benefits. Because the State would not be required to pay for such costs incurred, legislators often yielded to the temptation to respond favorably and thereby gain popularity or political advantage. However, local taxpayers and elected officials had to shoulder the ever-increasing burden by raising taxes in order to pay for these State-imposed mandates . . . Because of the State Mandates Act, units of local government are able to set a budget with the knowledge that additional programs or expenses mandated by the State will be paid by the State."

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As a part of the Act, two methods are available to remove pending legislation from the jurisdiction of the Act. "Exclusions" and "exemptions" are provided for in the Act. Five "exclusions" are provided for in the Act. A mandate excludes the state from reimbursement liability if the mandate (1) accomodates a request from a local government; (2) imposes additional duties which can be performed by existing staff and procedures with no appreciable increase in cost; (3) creates additional costs but also provides savings which negate the increase; (4) imposes a cost that is substantially recovered from federal, state or other external financial aid; and/or (5) imposes additional net costs of less that $1,000 for each of the local governmental units effected or less than $50,000 for all local governments effected. "Exemptions" are not limited to specific factual situations. An exemption can be made at any time by identifying the mandate and specifically exempting it, effectively resulting in an amendment of the Act for a specific purpose.

The legislation complained of by the school districts required increases in salaries and/or benefits to the categories of employees covered by the Bills. The mandate contained in the legislation was not accompanied by an appropriation bill as required by the Act. However, Section 2 of the legislation provides, "the General Assembly hereby finds and declares that this mandatory act does not require reimbursement by the state under the 'State Mandates Act.'" The State Board of Education argued to the Appellate Court that this language contained in the legislation created an exclusion from the Mandates Act. The court holds that the language used is insufficient to create an exclusion from the Mandates Act. In arriving at this conclusion, the court notes that on at least 25 occasions during the same legislative session the General Assembly exercised its right to exclude legislation from the Act. The court points out that the statement of the legislation contained in the bill is little more than a statement of intent. It resolves the issue by stating that, "we are not disposed to raise a declaration of intent to the level of an exclusion or an exemption."

The defendants also argued that the bill which contained no language amending the Mandates Act was an amendment of the Act by implication. Justice Blandic makes clear the feeling of the court of amendment by implication. "To tolerate the amendment of the State Mandates Act by a bill that completely ignores it would do violence to ... the 1970 Illinois Constitution.

Although this action is, in the court's view, a case of first impression in Illinois, the court relies on two California cases to reinforce its conclusion that the legislation complained of must be declared unenforceable. The State of California has a law similar to the Act which requires reimbursement by the state of addi-

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tional costs incurred by the local government as a result of state legislative action. In two 1984 cases, Appellate Courts in California have arrived at the same conclusion that exists in this action. California also requires specific language to exempt particular legislation from the impact of the fiscal mandate. The California cases both require an increase of costs to local government without provisions being made for reimbursement. Neither California statute contained the requisite language to exempt the laws from the California Mandates Act. Both courts ruled that in the absence of the specific inclusion of language to remove the mandates, and without an appropriation to cover the increased cost, the acts were void and unenforceable.

This action of the Appellate Court sends a clear message to the legislature. The Court is requiring the legislature to either exclude, exempt or pay for mandates placed upon local governments by the state. In the absence of those actions, their actions may be void and unenforceable. While a simple procedural change may have avoided this litigation, the legislature may have found it much more difficult to exclude or exempt this type of legislation from the Mandates Act. Legislators may have found it difficult to knowingly and specifically exempt or exclude these mandated salary and benefit increases if they were required to specifically vote to pass those costs to the units of local government. •

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