Citation. 22 Ill.134 N.H. 434, 595 A.2d 492 (1991)
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Brief Fact Summary.
Plaintiffs challenged a zoning ordinance which provided for multi-family housing to be built only as part of a planned residential development, which required that multi-family housing include a variety of housing types, such as single-family homes, duplexes, and multi-family structures.
Synopsis of Rule of Law.
A successful plaintiff is entitled to relief, which rewards his or her efforts in testing the legality of the ordinance and prevents retributive action by the municipality, such as correcting the illegality.
Plaintiffs, who were low to moderate income families and a prospective builder of low to moderate income multi-family housing, challenged a zoning ordinance which provided for multi-family housing to be built only as part of a planned residential development, which required that multi-family housing include a variety of housing types, such as single-family homes, duplexes, and multi-family structures. The land set aside under the ordinance for a planned residential development was only 1.73% of the total land in the Town of Chester and was only allowed on two parcels. Additionally, the zoning ordinance placed restrictions on the potential builder. Any project must first receive the approval of the town planning board as to “whether in its judgment the proposal meets the objectives and purposes set forth in the ordinance in which event the Administrator of the planning board may grant approval to the proposal subject to reasonable conditions and limitations.” The ordinance allo
wed the planning board to control various aspects of the planned residential development without reference to any objective criteria. One section of the ordinance permits the planning board to “retain, at the applicant’s expense, a registered professional engineer, hydrologist, and any other applicable professional to represent the planning board and assist the planning board in determining compliance with the ordinance and other applicable regulations.” The master appointed by the lower court, found that such subjective review for developing multi-family housing units created a substantial disincentive to the creation of such units because the units would not be economically feasible. Also, the court considered whether bank financing would be adversely affected due to the requirement that the potential builder basically give the planning board a blank check for compliance. The town appealed from the lower court’s ruling that the entire ordinance was unconstitutional.
Is the zoning ordinance constitutional?
Yes. The court upholds the zoning ordinance since the effect of the lower court’s decision would leave the town without zoning. However, the court orders the town to remedy the portions of the ordinance, which deal with multi-family housing, and the court granted specific relief to the Plaintiffs, the potential builders. The court affirmed the decision in part, and reversed in part.
The statute, which allows for municipalities to adopt or amend a zoning ordinance requires that such an adoption or amendment be done “for the purpose of promoting the health, safety, or the general welfare of the community.” The court found that the portion of the zoning ordinance which deals with multi-family housing flew in the face of the general welfare condition of the state zoning statute, and that, as applied to this case, the ordinance was an invalid exercise of power delegated to the town.
The effect of the lower court’s ruling is to leave the town without zoning. The ordinance will be allowed to stay in effect for a reasonable time within which the town is ordered to correct the portions of the ordinance regarding multi-family housing.
A successful plaintiff is entitled to relief, which rewards his or her efforts in testing the legality of the ordinance and prevents retributive action by the municipality, such as correcting the illegality. This is a builder’s remedy, and does not benefit the plaintiff.
The builder’s remedy is appropriate in this case, both to compensate the developer who has invested substantial time and resources in pursuing this litigation, and as the most likely means of ensuring that low and moderate income housing is actually built.
The result of the court’s action is to give the town an opportunity to revise its ordinance. Specifically, the court’s decision gave Plaintiffs an opportunity to build, which they hade been trying to do for many year