Gurba v. Community High School District No. 155

Illinois Official Reports
Appellate Court
Gurba v. Community High School District No. 155,
2014 IL App (2d) 140098Appellate Court JEFF GURBA, THE LOUIS A. BIANCHI REVOCABLE TRUST,
Caption and THE JEAN M. BIANCHI REVOCABLE TRUST,
Plaintiffs-Appellees, v. COMMUNITY HIGH SCHOOL DISTRICT
No. 155, Defendant (The Board of Education of Community High
School District No. 155, Defendant and Third-Party Plaintiff-
Appellant; The City of Crystal Lake, Third-Party Defendant-
Appellee; and Leslie Schermerhorn, in Her Official Capacity as
McHenry County Regional Superintendent of Schools, Third-Party
Defendant-Appellant).
District & No. Second District
Docket No. 2-14-0098
Filed September 3, 2014
Held The trial court’s holding that defendant school district must comply
(Note: This syllabus with the zoning ordinances of the city in which the district was
constitutes no part of the situated when the district reconstructed the bleachers at its athletic
opinion of the court but field was affirmed, notwithstanding the district’s contentions that the
has been prepared by the trial court’s decision was an unconstitutional infringement on the
Reporter of Decisions powers of the district’s school board and the regional superintendent
for the convenience of of schools, since land-use decisions have traditionally been left to
the reader.) local municipalities, not school districts, and local school boards and
school districts have traditionally been held subject to the zoning
regulations of local municipalities.
Decision Under Appeal from the Circuit Court of McHenry County, No. 13-CH-1319;
Review the Hon. Michael J. Chmiel, Judge, presiding.
Judgment Affirmed.
Counsel on Michael G. Nerheim, State’s Attorney, of Waukegan (Daniel L. Jasica
Appeal and Carla N. Wyckoff, Assistant State’s Attorneys, of counsel), for
appellant Leslie Schermerhorn.
Dean W. Krone, Robert E. Swain, Steven M. Richart, and Kerry P.
Burnet, all of Hodges, Loizzi, Eisenhammer, Rodick & Kohn, LLP, of
Arlington Heights, for other appellants.
Victor P. Filippini, Jr., of Filippini Law Firm, LLP, of Glenview, for
appellee City of Crystal Lake.
Michael R. Burney, of Schain, Burney, Banks & Kenny, Ltd., of
Chicago, and Thomas R. Burney, of Zanck, Coen, Wright & Saladin,
P.C., of Crystal Lake, for other appellees.
Brian D. Day and Roger Huebner, both of Illinois Municipal League,
of Springfield, amicus curiae.
Laurie A. Reynolds, of University of Illinois College of Law, of
Champaign, amicus curiae.
Panel JUSTICE BIRKETT delivered the judgment of the court, with
opinion.
Presiding Justice Burke and Justice Schostok concurred in the
judgment and opinion.
OPINION
¶1 The plaintiffs here are Jeff Gurba, the Louis A. Bianchi Revocable Trust, and the Jean M.
Bianchi Revocable Trust, property owners whose land is adjacent to the Crystal Lake South
High School football stadium. The defendants are Community High School District No. 155
(the District), which is responsible for, among other things, the physical plant of Crystal Lake
South, and the Board of Education of Community High School District No. 155 (the Board).
Plaintiffs objected to the District’s decision to build bleachers that violated the zoning and
stormwater ordinances of the City of Crystal Lake (the City) by being too big, too high, and
too close to the property line. The complaint spawned a third-party action filed by the Board
against the City and Leslie Schermerhorn, in her capacity as the McHenry County regional
superintendent of schools (the Superintendent). In short, the Board decided to reconstruct and
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relocate the home bleachers, but it did not notify the City or comply with the City’s zoning
ordinances, under which the Board would have been required to obtain a variance or
special-use permit. The trial court held that the Board was subject to the City’s zoning and
stormwater ordinances, and the Board appeals, contending that the court’s ruling represented
an unconstitutional infringement on the Board’s and the Superintendent’s power. We
disagree and affirm.
¶2 I. BACKGROUND
¶3 The District operates several high schools located within both Lake and McHenry
Counties. It serves the municipalities of Bull Valley, Burton’s Ridge, Cary, Crystal Lake,
Fox River Grove, Lake in the Hills, Lakewood, Oakwood Hills, Prairie Grove, and
Ridgefield. In particular, the District operates Crystal Lake South, which is located within the
City.
¶4 The controversy in this case arose from a failed structural inspection of the bleachers and
the Board’s decision to replace them. As part of the project, the Board decided to switch the
home and visiting bleachers, moving the home bleachers to the side of the field that is
adjacent to plaintiffs’ property. The Board represents that repositioning the bleachers would
improve the traffic flow inside the stadium. The Board avers that the bleachers are used for
“school purposes[,] such as physical education classes and visitor seating for school events.”
¶5 The Board submitted its plans for the project to the Superintendent, who reviewed the
plans and issued a building permit, pursuant to section 3-14.20 of the Illinois School Code
(105 ILCS 5/3-14.20 (West 2012)). The Board did not proceed under the City’s zoning code
or notify the City. The Board avers that the Superintendent was required to provide notice
only if the City requested it and that the City never made that request.
¶6 While the bleacher project was underway, the City objected, maintaining that the project
required a special-use permit, a stormwater permit, and zoning variances from the City.
Under the City’s zoning plan, the high school’s campus is located in an R-2 (single-family
home) district. The City maintained that its zoning restrictions applied to the project and that
the home bleachers were limited to a height of 15 feet, a size of 600 square feet, and a
minimum setback of 50 feet from the property line. The Board did not agree and did not
change the project to comply with the City’s zoning restrictions. The City then issued a
stop-work order against the Board.
¶7 As the City and the Board’s controversy was gearing up, plaintiffs sued the District and
the Board, seeking to privately enforce the City’s zoning and stormwater ordinances. The
Board filed a third-party complaint against the City and the Superintendent, seeking a
declaration that the project was not subject to the City’s zoning or stormwater ordinances.
¶8 The parties filed cross-motions for summary judgment. The trial court determined that
the project was subject to the City’s zoning and stormwater ordinances, and the Board timely
appeals.1
1
Plaintiffs’ action remains pending in the trial court.
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¶9 II. ANALYSIS
¶ 10 On appeal, the Board argues that it is not subject to the City’s zoning or
stormwater-management ordinances. 2 The Board roots its contention in the Illinois
Constitution of 1970. The Board argues that the constitution declares public education to be a
matter of statewide concern and that the legislature, acting under a constitutional grant of
plenary power over public education, has enacted a comprehensive scheme to regulate the
field and has relegated to municipalities only a limited role. Based on this chain of reasoning,
the Board contends that the City’s zoning power stops at the boundary of property used for
school purposes (and it makes the ancillary argument that the “school purposes” test or
analysis is well established in the case law and is applicable to the controversy in this case).
We follow the Board’s general organization in presenting our opinion (constitutional support,
statutory support, other considerations), but we do not fully agree with the contours of the
Board’s argument, so we set forth our analysis of each issue and then consider any particulars
of the Board’s contentions that have not been addressed in our analysis.
¶ 11 A. Standard of Review
¶ 12 We begin with the overarching standard of review. This matter comes before us after the
trial court ruled on the parties’ cross-motions for summary judgment. Summary judgment is
appropriate if the pleadings, depositions, and admissions on file, together with any affidavits,
when viewed in the light most favorable to the nonmoving party, show that there is no
genuine issue of material fact and that the moving party is entitled to judgment as a matter of
law. 735 ILCS 5/2-1005(c) (West 2012); G.M. Sign, Inc. v. State Farm Fire & Casualty Co.,
2014 IL App (2d) 130593, ¶ 15. When the parties file cross-motions for summary judgment,
they agree that no material factual issues exist and that only questions of law are presented.
City of Oakbrook Terrace v. Suburban Bank & Trust Co., 364 Ill. App. 3d 506, 510 (2006).
(Of course, neither the trial court nor the reviewing court is required to accept the parties’
beliefs as to the existence of factual issues, and both courts remain free to determine the
existence of a genuine factual issue sufficient to preclude the entry of summary judgment.
Id.) We review de novo the trial court’s ruling on a motion for summary judgment. G.M.
Sign, 2014 IL App (2d) 130593, ¶ 15. Likewise, we review de novo the construction of any
statutes or ordinances, as it involves legal questions. Oakbrook Terrace, 364 Ill. App. 3d at
510.
¶ 13 B. Constitutional Underpinnings
¶ 14 The Board begins with some of the pertinent language from the Illinois Constitution
regarding public education as well as municipalities’ home-rule powers. As this is a good
starting point, we will begin our analysis similarly. We keep in mind that, when discussing
and interpreting a constitutional provision, we wish to discern the common understanding of
those who ratified and gave life to the constitution. Ritzheimer v. Insurance Counselors, Inc.,
173 Ill. App. 3d 953, 958 (1988). This common understanding is best determined by looking
2
If the City were to prevail on the issue of the zoning ordinances, then the same result would
necessarily obtain for the stormwater ordinances. Accordingly, we look to the arguments on the zoning
ordinances, keeping in mind that they are fully applicable to the stormwater ordinances also.
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at the common meaning of the words used in the provision. Id. Moreover, the rules of
statutory interpretation are roughly applicable to interpreting a constitutional provision, and
we are to strive to interpret a constitutional provision so as to promote its essential purpose.
Id. With these principles in mind, we turn to the constitution’s public education provisions
animating this dispute.
¶ 15 The Illinois Constitution contains an article devoted solely to education. Ill. Const. 1970,
art. X. In section 1, article X states, “A fundamental goal of the People of the State is the
educational development of all persons to the limits of their capacities.” Ill. Const. 1970, art.
X, § 1. To that end, the state government is tasked to “provide for an efficient system of high
quality public educational institutions and services.” Id. The Board points to these provisions,
as well as those mandating the state to provide free public education through the
secondary-school level and any other free education required by statute. Id. In addition to
making these hortatory statements and assigning fiscal responsibility, the constitution created
and empowered a State Board of Education to oversee the implementation of public
education. Ill. Const. 1970, art. X, § 2. Notably, section 2 provides that “[t]he Board, except
as limited by law, may establish goals, determine policies, provide for planning and
evaluating education programs and recommend financing.” Ill. Const. 1970, art. X, § 2(a).
¶ 16 In addition to the article devoted to education, we note (although the Board did not) that,
in article VII, the constitution explains the powers of local governments, including local
school boards. Specifically, it states that “[t]ownships, school districts, special districts and
units, designated by law as units of local government, which exercise limited governmental
powers or power in respect to limited governmental subjects shall have only powers granted
by law.” Ill. Const. 1970, art. VII, § 8. Additionally, the constitution differentiates between
municipalities and other, limited, local governmental units: “ ‘Municipalities’ means cities,
villages and incorporated towns. ‘Units of local government’ means counties, municipalities,
townships, special districts, and units, designated as units of local government by law, which
exercise limited governmental powers or powers in respect to limited governmental subjects,
but does not include school districts.” Ill. Const. 1970, art. VII, § 1; see also Bremen
Community High School District No. 228 v. Cook County Comm’n on Human Rights, 2012 IL
App (1st) 112177, ¶ 26 (noting that the Illinois Constitution expressly differentiates school
districts from municipalities).
¶ 17 Keeping in mind that the Board attempts to characterize the issue in this case as a contest
between the powers of the District and the home-rule authority of the City, we note that the
constitution expressly addresses the power of home-rule units in section 6 of article VII. Ill.
Const. 1970, art. VII, § 6. The constitution first defines a home-rule unit, then it expressly
empowers home-rule units:
“Except as limited by this Section, a home rule unit may exercise any power and
perform any function pertaining to its government and affairs including, but not
limited to, the power to regulate for the protection of the public health, safety, morals
and welfare; to license; to tax; and to incur debt.” Ill. Const. 1970, art. VII, § 6(a).
The constitution also expressly grants the home-rule municipality primacy within its
corporate boundaries, at least with respect to other home-rule units: “If a home rule county
ordinance conflicts with an ordinance of a municipality, the municipal ordinance shall prevail
within its jurisdiction.” Ill. Const. 1970, art. VII, § 6(c). But while home-rule units are
granted broad autonomy under section 6 of article VII, the state may still preempt and occupy
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a field of the law: “The General Assembly may provide specifically by law for the exclusive
exercise by the State of any power or function of a home rule unit ***.” Ill. Const. 1970, art.
VII, § 6(h). Even so, home-rule units may still “exercise and perform concurrently with the
State any power or function of a home rule unit to the extent that the General Assembly by
law does not specifically limit the concurrent exercise or specifically declare the State’s
exercise to be exclusive.” Ill. Const. 1970, art. VII, § 6(i). In keeping with the broad powers
of home-rule units, the constitution forbids the legislature from interfering with home-rule
units’ ability to impose certain taxes and special assessments regarding local improvements
and special services. Ill. Const. 1970, art. VII, § 6(l). Finally, the constitution mandates that
the “[p]owers and functions of home rule units shall be construed liberally.” Ill. Const. 1970,
art. VII, § 6(m).
¶ 18 Looking at the various constitutional provisions quoted and paraphrased (as well as all of
the remaining provisions) dealing with education, school districts, and home-rule units and
their powers, we first conclude that the language is sufficiently clear for our interpretive
purposes (while keeping in mind the old saw that the devil is often in the details). See
McFatridge v. Madigan, 2013 IL 113676, ¶ 18 (in attempting to implement the drafters’
intent, where the language is clear and unambiguous, the court must apply it as written,
without resort to outside sources or interpretive tools).
¶ 19 The powers of home-rule units and school districts are matters of constitutional
dimension, and the strong public policy statement concerning public education suggests that
school districts’ powers are as important as the powers of home-rule units. There are,
however, several provisions that suggest that, in the case of a conflict between a home-rule
unit and a school district, there is a slight bias toward the home-rule unit. The first suggestion
is the broad and liberal grant of powers to home-rule units. Section 6(a) of article VII grants a
home-rule unit powers over its government and affairs, including the power to issue laws to
further the public health, safety, morals, and welfare. Of course, the power granted is not
limitless; it is limited to the home-rule unit’s government and affairs. But the home-rule unit
is allowed to exercise its powers concurrently with the state, unless the legislature expressly
preempts them, and the powers and functions of the home-rule unit are to be liberally
construed. Ill. Const. 1970, art. VII, § 6. Perhaps most importantly for our analysis here,
home-rule-unit primacy is embodied in the express language of the constitution, which
guarantees that, if a county-level home-rule unit’s ordinances conflict with those of a
municipality-level home-rule unit, the municipality’s ordinances will be given effect in the
municipality’s territory or jurisdiction. Ill. Const. 1970, art. VII, § 6(c). This primacy
suggests a slight bias in favor of a local, or narrower, unit over a regional, or broader, unit.
¶ 20 On the other hand, the constitution is careful to emphasize the limited authority of school
districts. Unlike a home-rule unit, the powers of which are subject only to an express
preemption by the legislature, a school district’s powers are only those bestowed by the
legislature. Ill. Const. 1970, art. VII, § 8. Again, comparing a school district’s powers, which
are derived statutorily and may not extend beyond the statutory mandates, with a home-rule
unit’s powers, which derive from the constitution and extend throughout its bailiwick unless
expressly statutorily limited, suggests that, in a conflict between a school district and a
home-rule unit, the home-rule unit’s powers should be given precedence.
¶ 21 This principle is further strengthened by the express constitutional recognition that a
school district is by definition not a municipality. Ill. Const. 1970, art. VII, § 1. In fact, rather
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than exalting a school district to a position equal to or greater than that of a municipality, it
relegates a school district to the somewhat lesser status of a quasi-municipality, acting for the
state as its administrative arm overseeing the establishment and implementation of free
schools. See Bremen Community, 2012 IL App (1st) 112177, ¶ 24 (as a quasi-municipality,
the school district possesses a degree of power similar to that of a municipality but lacks the
scope of political and legislative authority).
¶ 22 The constitution’s treatment of public education does not raise the priority and powers of
its institutions above those of home-rule units. First, the article dealing with public education
combines aspirational exhortations with assignments of fiscal responsibility for a very
broadly and generally outlined educational system. Ill. Const. 1970, art. X, § 1. The
constitution also provides for the creation of the State Board of Education and empowers it to
set goals and policies, plan and evaluate education programs, and recommend financing (Ill.
Const. 1970, art. X, § 2)–none of which have anything to do with land use and whether a
school board or district is subject to the local municipality’s zoning regulations.
¶ 23 After analyzing the plain language of the various constitutional provisions relating to
school districts, public education, and home-rule units, we conclude that there is clear
support for the trial court’s determination that the Board was subject to the City’s zoning
ordinances. This conclusion based on the constitutional language is certainly not
dispositive–there is more authority to examine. Further, the constitutional language favors
the City to only a small degree; while we discern a trend that seems to favor the powers of a
home-rule unit over those of a local board of education or school district, the constitutional
provisions are (necessarily) both broad and general, and this diminishes the weight to be
accorded them in this specific controversy.
¶ 24 We turn now to the Board’s contentions regarding the import of the constitutional
language. We first note that the Board does not undertake to consider all of the various
constitutional provisions regarding school districts, public education, and home-rule units
and their powers. Instead, the Board first selects language only from subsection 6(a) of article
X. Specifically, the Board highlights the “pertaining to its government and affairs” language
of section 6(a) (Ill. Const. 1970, art. X, § 6(a)) and notes that it is a limitation on a home-rule
unit’s powers. See Ampersand, Inc. v. Finley, 61 Ill. 2d 537, 540 (1975) (counsel to the
constitutional convention’s local government committee suggested that the question
regarding the “ ‘pertaining to its government and affairs’ ” language was not whether it
limited the grant of home-rule powers but, rather, how extensive the limitation should be). In
fact, home-rule units’ powers are related to the specific problems facing home-rule units, and
they do not extend to matters of statewide (or nationwide) concern, such as divorce, real
property, trusts, contracts, and the like, which are matters generally recognized to fall within
the competence of the state rather than local authorities. Id.¶ 25 We do not (and cannot) disagree with the notion that the “pertaining to” language is a
limitation or that the question is how much the “pertaining to” language limits a
municipality’s home-rule powers. With that said, we note further that the Board effectively
ignores other important language in section 6, such as subsection 6(i), which authorizes
home-rule units to exercise their authority concurrently with the state (in matters “pertaining
to [their] government and affairs”) unless expressly preempted by the legislature. Ill. Const.
1970, art. VII, § 6(i). Likewise, the Board ignores subsection 6(m), mandating the liberal
construction of the “[p]owers and functions of home rule units.” Ill. Const. 1970, art. VII,
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§ 6(m). Thus, while we are critical of some of the details of the Board’s initial constitutional
arguments, we accept the larger point that home-rule units’ powers are circumscribed in
various ways and that their circumscription is of constitutional dimension.
¶ 26 The Board shifts from the concept of limited home rule to the constitution’s language on
public education. The idea animating the Board’s argument is that home-rule powers must
give way to matters of statewide concern. The Board constructs its argument by positing first
that public education is a matter of statewide concern and next that the legislature is given
plenary power over public education. Finally, the Board concludes that, therefore, home-rule
powers must be subordinate to anything that touches on public education.
¶ 27 The Board first asserts that the constitution declares public education to be a matter of
statewide concern. We agree with the Board’s assertion. The constitution states, “A
fundamental goal of the People of the State is the educational development of all persons to
the limits of their capacities.” Ill. Const. 1970, art. X, § 1. In order to fulfill this fundamental
goal, the constitution requires the state to “provide for an efficient system of high quality
public educational institutions and services,” and it then parcels out various fiscal
responsibilities necessary to construct and maintain a comprehensive system of public
education through the primary and secondary levels. Id. These provisions, along with the
establishment of a State Board of Education (Ill. Const. 1970, art. X, § 2), evince the intent to
make public education a matter of statewide concern.
¶ 28 We note that the Board offers a number of quotes from the committee on education in the
record of proceedings of the constitutional convention. 6 Record of Proceedings, Sixth
Illinois Constitutional Convention 223-334 (hereinafter, Proceedings). In particular, the
Board excerpts a number of comments from the committee’s explanation of its proposals
concerning section 1 of article X, all of which underscore the importance of education and
the state’s fundamental interest in a high-quality educational system. See 6 Proceedings
231-37. We need not further discuss the Board’s foray into the Proceedings, as we agree with
the Board that public education involves matters of statewide concern.
¶ 29 We do note, however, that there remains a difference between the abstract concept of
public education set forth in the constitution, which is of statewide interest, and an individual
school district or local board of education, which, while on the front line of implementing
public education, remains rooted in the local community. In other words, it is difficult to see
what an individual school district or local board of education could do (assuming no
impropriety) that would be of statewide concern beyond the abstract idea of providing a
venue for public education.
¶ 30 The second proposition of the Board’s public-education-is-paramount syllogism is that
our supreme court has held that the Illinois Constitution grants the legislature plenary power
over public education. Again, this proposition is correct. In Board of Education of School
District No. 150 v. City of Peoria, 76 Ill. 2d 469, 476 (1979), as quoted by the Board, our
supreme court concluded that “the legislature, pursuant to the constitutional mandate,
exercises plenary power over the Illinois school system.” In the very next sentence, however,
the supreme court expressly sidestepped the issue here: “We need not decide whether health
and safety ordinances of home rule cities are enforceable against school districts.” Id. (The
Board, however, characterizes that sentence as expressing “deference to [the] plenary power”
bestowed on the legislature over public education. We do not necessarily agree, especially
since the first quoted sentence relates to the Illinois school system as a whole, and the second
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quoted sentence deals with local school districts, so the object of each sentence is distinctly
different.)
¶ 31 The Board’s reliance on Peoria is misplaced. While Peoria does, in fact, make several
statements about the legislature’s plenary power over public education (id. at 475-76), it does
not fully articulate what that plenary power means, especially in a case like this, involving
the City’s zoning ordinances and their impact on the Board. For instance, the Board argues
that, “[i]n deference to [the legislature’s] plenary power, the [Illinois] Supreme Court would
not even assume that ‘health and safety ordinances of home rule cities are enforceable against
school districts,’ and instead left that issue undecided” (quoting id. at 476). What actually
happened in Peoria, however, was that the court considered the propriety of a local tax
ordinance that both imposed extra duties on and gave greater powers to the local school
board than were imposed or given in the School Code. Id. at 476-77. Because the court was
considering a tax ordinance, it declared that it “need not decide whether health and safety
ordinances of home rule cities are enforceable against school districts.” Id. at 476. The
difference between what the Board is saying in its argument and what the court actually said
is subtle, but important. The Board attempts to base the court’s statement on its deference to
the legislature’s plenary power over public education. This is a strained and misleading
interpretation. The more natural and less tortured reading of the court’s statement is that the
case simply did not involve health and safety ordinances, but involved only a tax ordinance,
so any foray into the consideration of health and safety ordinances would be unwarranted.
Thus, while properly noting that the court acknowledged the legislature’s plenary power over
public education, the Board engages in over-interpretation and attempts to add reasoning that
is simply not supported by the text of the decision. Accordingly, we reject the Board’s
interpretation of Peoria, while noting what Peoria properly holds.
¶ 32 We note that zoning provisions have long been held to be appropriate exercises of a
home-rule unit’s power to regulate for the protection of public health, safety, morals, and
welfare. E.g., Napleton v. Village of Hinsdale, 229 Ill. 2d 296, 310-11, 315 (2008)
(recognizing that the connection between zoning and regulating for the protection of public
health, safety, morals, and welfare was first enunciated in Village of Euclid v. Ambler Realty
Co., 272 U.S. 365 (1926), and holding that the validity of a zoning ordinance requires that it
be substantially related to the promotion of public health, safety, morals, and welfare);
La Salle National Bank of Chicago v. County of Cook, 12 Ill. 2d 40, 46-47 (1957) (a zoning
ordinance is valid if it bears a substantial relationship to promoting the public health, safety,
morals, and welfare); LeCompte v. Zoning Board of Appeals, 2011 IL App (1st) 100423, ¶ 19
(a village is a home-rule unit and may exercise, among other things, the power to regulate for
the protection of public health, safety, morals, and welfare, and so the village is empowered
by the Illinois Constitution to enact a zoning code); Village of Tinley Park v. Ray, 299 Ill.
App. 3d 177, 178-79 (1998) (the Illinois Constitution empowers a home-rule unit to enact
zoning regulations in order to advance public health, safety, morals, and welfare). Despite the
manifold cases approving of a home-rule unit’s power to enact zoning regulations, our
supreme court, as noted, expressly declined to address the issue of whether a home-rule
unit’s zoning ordinances would be enforceable against a local school district. Peoria, 76 Ill.
2d at 476. We further note that neither the parties’ nor our own research has uncovered any
cases purporting to settle the issue. The upshot is that the question of whether a home-rule
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unit’s zoning ordinances are enforceable against a school district or local board of education
is undecided.
¶ 33 Next, to reinforce its already accepted point that public education is a matter of statewide
concern, the Board cites McLorn v. City of East St. Louis, 105 Ill. App. 3d 148, 153 (1982),
for the proposition that, when a constitutional provision commits an area of interest to a
specific branch of government, this indicates that the area is one of statewide concern. In
McLorn, the area of interest was sovereign immunity, which the constitution committed to
the legislature. Thus, when the municipality passed an ordinance effectively giving it
sovereign immunity against a judgment the municipality incurred, the court held that it
trespassed into a matter of statewide concern and that its ordinance was invalid. Id. at 154.
The Board’s unstated conclusion (and the conclusion to its syllogism) is that, because public
education is a matter of statewide concern, the City’s zoning ordinances cannot be effective
against institutions implementing public education, namely, the Board and the District. We
disagree. The City’s zoning ordinances regulate land use within the City’s boundaries. They
do not speak to the topic of public education or otherwise seek to intrude into the realm of
public education. Thus, McLorn offers little insight on the issues in controversy in this case,
other than to suggest that public education, like sovereign immunity, is properly regarded as
a matter of statewide concern.
¶ 34 In similar fashion, the Board cites Oakbrook Terrace, 364 Ill. App. 3d at 514, for the
same proposition as McLorn. Again, the Board has accurately cited the case, but, once again,
the point is of little moment. We acknowledge that statewide concern may be demonstrated
for an area where the constitution commits that area to a specific branch of the government.
Even conceding this point, however, there remains the issue of how land-use regulations
impinge on the area of public education.
¶ 35 The Board has established the first two propositions of its syllogism: that public
education is a matter of statewide concern and that the legislature has plenary power over
public education. The Board’s conclusion, that a home-rule unit may not interfere with the
land use of a school district, however, does not follow from the propositions the Board has
established. Instead, a better conclusion, and one actually supported by the authority cited by
the Board, would be that a home-rule unit may not enact ordinances that infringe upon the
realm of public education, such as by changing local graduation requirements or some other
action that would affect the content or substance of the public education being offered in the
locality. Instead of keeping public education as the object in the conclusion to the syllogism,
the Board changes it to school district, as if “school district” were a complete synonym for
“public education.” First, the Board offers no support that “school district” and “public
education” are synonymous and interchangeable. Second, land-use regulations have no
inherent impact upon the substance of public education. Accordingly, we reject the Board’s
arguments underpinning its constitutional analysis of the issue.
¶ 36 C. Statutory Underpinnings
¶ 37 The Board next asserts that the School Code trumps the City’s zoning ordinances.
Accordingly, we look to various provisions of the School Code. After completing our
analysis of the School Code, we will then address any pertinent arguments that have not yet
been addressed, as needed.
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¶ 38 As a preliminary matter, having alluded to them in the previous section, we review the
principles of statutory interpretation. The cardinal principle of statutory interpretation is to
ascertain and give effect to the intent of the legislature in enacting the statute. Krautsack v.
Anderson, 223 Ill. 2d 541, 552-53 (2006). The best indication of the legislature’s intent is the
actual language used in the provision, which is given its plain and ordinary meaning.
Id. at 553. In considering a statute, the court must give effect to the entire statutory scheme;
the words and phrases of the statute must not be viewed in isolation; rather, they must be
interpreted in light of other relevant portions of the statute. Id. The questions presented by
statutory interpretation are issues of law, which are reviewed de novo. Id. With these
principles in mind, we turn to the School Code.
¶ 39 The School Code is largely devoid of any references to zoning. One provision, and one
provision only, in the School Code expressly refers to zoning: “To seek zoning changes,
variations, or special uses for property held or controlled by the school district.” 105 ILCS
5/10-22.13a (West 2012) (Zoning Change Provision). We cannot say whether the Zoning
Change Provision is unambiguous, because, standing alone, there is no context. Accordingly,
we refer to the rest of the section within which it resides to provide context for this express
reference to zoning. Article 10 of the School Code deals with school boards―their creation,
composition, duties, and responsibilities, including sections on financing, providing
education for students, and administering individual schools. 105 ILCS 5/10-1 et seq. (West
2012). Among the various enumerated powers and duties is the Zoning Change Provision
(105 ILCS 5/10-22.13a (West 2012)).
¶ 40 We see, then, that the proper context for the Zoning Change Provision relates to school
boards and, particularly, to the duties and powers of the local school board. Thus, it is the
local school board that is empowered and required “[t]o seek zoning changes, variations, or
special uses for property held or controlled by the school district.” 105 ILCS 5/10-22.13a
(West 2012). From this, we draw the conclusion that the local school board must obey and
avail itself of the local municipality’s zoning regulations in order “[t]o seek zoning changes,
variations, or special uses” for school property residing in that municipality.
¶ 41 Having considered the statute as a whole, we note two more canons of construction that
appear to be apt in construing the Zoning Change Provision: the first requires that no term or
phrase be rendered meaningless or superfluous. Stevens v. Village of Oak Brook, 2013 IL App
(2d) 120456, ¶ 34 (a court must interpret a statute in a way that avoids making any portion of
the statute meaningless or superfluous). Applying this canon to the Zoning Change Provision
suggests that, if, as the Board argues, the Board is never subject to local zoning provisions,
the Zoning Change Provision is wholly unnecessary and superfluous because the Board
would never have to seek a zoning change, variance, or special use.
¶ 42 The Attorney General recently relied on the superfluity canon in an opinion as to whether
public school districts were subject to county or municipal zoning ordinances. 2011 Ill. Att’y
Gen. Op. No. 11-005. The Attorney General concluded that, generally, a local public school
district was subject to municipal or county zoning ordinances, unless compliance with the
ordinances would frustrate the district’s ability to provide public education. Id. at 1. We find
the Attorney General’s analysis to be informative.
¶ 43 The Attorney General first reviewed the provenance of zoning ordinances in both
home-rule units and non-home-rule units. Pertinently, in the case of home-rule units, their
zoning power is derived from article VII, section 6, of the Illinois Constitution of 1970 (Ill.
- 11 -
Const. 1970, art. VII, § 6). 2011 Ill. Att’y Gen. Op. No. 11-005, at 2. The Attorney General
also noted that courts have long held that zoning ordinances are valid exercises of home-rule
authority. Id. Further, there are no statutory provisions that limit a home-rule unit’s exercise
of its zoning authority regarding school districts. Id.
¶ 44 The Attorney General next reviewed the School Code. She reasoned:
“Under the plain and unambiguous language of [the Zoning Change Provision],
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 [the Zoning Change Provision] completely
superfluous.” Id. at 3.
The Attorney General also considered that, in the relevant statutes, there is nothing
exempting local school boards or school districts from compliance with local zoning
regulations, while section 10-20 of the School Code (105 ILCS 5/10-20 (West 2010))
subjects the local school board to those duties imposed upon it by other statutory or
constitutional provisions. 2011 Ill. Att’y Gen. Op. No. 11-005, at 3. From this, the Attorney
General concluded that, generally, a school district is subject to local zoning regulations. Id.
¶ 45 The Attorney General then considered what might happen if compliance with the local
zoning regime frustrates the school district’s ability to fulfill its statutory duties regarding the
provision of public education. She concluded that this was a factual issue beyond her power
to answer, but that the school district could seek judicial relief. Id. at 5.
¶ 46 Obviously, the Attorney General’s opinion is not binding or precedential; we do,
however, find its reasoning to be persuasive. The Attorney General reviewed, as we did,
relevant constitutional and statutory provisions in determining that a school district is
generally subject to the zoning regulations of the municipality in which it resides.
Specifically, she relied on a construction of the Zoning Change Provision that did not render
it superfluous or unnecessary. Id. at 3; see also supra ¶ 40. The concern that the Board or the
District will be frustrated in performing its statutory duties is not present on the facts before
us, and this concern has not been raised in this case. Accordingly, we find that the Attorney
General’s opinion provides strong support for our analysis and the City’s position.
¶ 47 Further, in light of the superfluity canon of construction and the Attorney General’s
opinion, we are unable to see why, if a local school board or school district were deemed to
have unfettered discretion and power regarding the placement, size, and height of structures
on its property, the board or district would need to seek a zoning change, variance, or special
use. Because, under the Board’s view, the local school board or school district can do
whatever it pleases on its property, it need not obey any local zoning regulations that would
restrict the placement, size, or height of a structure on school property, so it need not avail
itself of the Zoning Change Provision’s grant of the power to seek a zoning change, variance,
or special use. Thus, the Board’s view makes the Zoning Change Provision entirely
surplusage. By contrast, interpreting the Zoning Change Provision as subjecting the local
school board and school district to the municipality’s zoning regulations gives effect to the
provision. If the board and the district are subject to the municipality’s zoning regulations,
then the Zoning Change Provision’s grant of authority to seek zoning changes, variances, and
special uses becomes essential should the board or the district wish to change the placement,
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size, or height of a structure on its property. Accordingly, we hold that the Board is subject to
the City’s zoning ordinances.
¶ 48 The Board specifically objects to our application of the superfluity canon of construction.
We note, however, that the Board does not assail the canon itself; rather, the Board posits a
different construction of the Zoning Change Provision, under which it is not superfluous.
Specifically, the Board argues that, to properly interpret the Zoning Change Provision, we
must consider section 2-3.12(c) of the School Code (105 ILCS 5/2-3.12(c) (West 2012)).
Section 2-3.12(c) authorizes the creation of the “ ‘Health/Life Safety Code for Public
Schools’ ” (Health/Life Safety Code). Id. Section 2-3.12(c) also acknowledges that a school
district may own property that is not used for school purposes: “Facilities owned by a school
district but that are not used to house public school students or are not used for public school
purposes shall be governed by separate provisions within the code [(i.e., the Health/Life
Safety Code)] authorized by this Section.” Id. The Board argues that the dichotomy between
property used for public school purposes and property not used for public school purposes is
inherent within the Zoning Change Provision, which applies only to that property which is
not used for public school purposes. If read with this understanding, then even under the
superfluity canon, the Zoning Change Provision is not rendered meaningless, because section
2-3.12(c) excludes from the ambit of the Health/Life Safety Code property not used for
public school purposes and, for such property, the local school board will need to seek
zoning changes, variances, and special uses. We disagree with the contention.
¶ 49 When interpreting a statute, we cannot read a provision in a fashion that makes it
meaningless or superfluous, but, if at all possible (Stevens, 2013 IL App (2d) 120456, ¶ 34),
we also cannot depart from the statute’s plain language and read into it exceptions,
limitations, or conditions that conflict with or differ from the legislative intent (Village of
Lake in the Hills v. Niklaus, 2014 IL App (2d) 130654, ¶ 15). The Zoning Change Provision
empowers a local school board “[t]o seek zoning changes, variations, or special uses for
property held or controlled by the school district.” (Emphasis added.) 105 ILCS 5/10-22.13a
(West 2012). In that provision, “property” is not modified, as in section 2-3.12(c), with
words such as “used to house public school students” or “used for public school purposes”
(105 ILCS 5/2-3.12(c) (West 2012)); rather, “property” is modified by “held or controlled by
the school district” (105 ILCS 5/10-22.13a (West 2012)).3 The phrase modifying “property”
in the Zoning Change Provision suggests that all school property–owned or rented or
otherwise controlled by the district, whether it is or is not used for school purposes–is subject
to the Zoning Change Provision. If the legislature had intended to limit the term “property” in
the Zoning Change Provision to anything less than all, it was well capable of doing so, as
evidenced by the restriction placed on “facilities” in section 2-3.12(c). See also, e.g., People
v. Bywater, 223 Ill. 2d 477, 484 (2006) (the legislature is capable of adding appropriate
modifying language to a statute to accomplish the intended end, such as an event triggering
the running of a time period).
¶ 50 Moreover, the Health/Life Safety Code itself does not deal with zoning considerations;
rather, it is concerned primarily with the construction and maintenance of facilities associated
with schools. See, e.g., 23 Ill. Adm. Code 180.30 (2007) (“ ‘Facility’ means land, buildings,
3
Indeed, in section 2-3.12(c), “property” is not used in the sentence under consideration; “facilities”
is the term used, and “facilities” is a narrower word than “property.”
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structures and improvements other than buildings, and permanent, fixed equipment attached
to or incorporated in any building owned or used for school purposes by a school district
subject to this Part. This definition excludes facilities owned by a school district but not used
for public school purposes, which shall be subject to local building codes.” (Emphasis
added.); “variance” pertains not to zoning but to the various building, property maintenance,
and fire codes and the like specified in section 180.60); Board of Education of Minooka
Community High School District No. 111 v. Carter, 119 Ill. App. 3d 857, 861 (1983) (the
Health/Life Safety Code “is directed to school buildings, covering all aspects of their
construction and design”). Thus, “property,” as used in the Zoning Change Provision, refers
to all of a school district’s property, and not only to property not used for public school
purposes, as proposed by the Board. The plain language of the provision contains no such
limitation, and no such limitation is necessary for a reasonable interpretation of the Zoning
Change Provision. Sycamore Community Unit School District No. 427 v. Illinois Property Tax
Appeal Board, 2014 IL App (2d) 130055, ¶ 28 (a court should not interpret a statute in a
manner leading to an absurd or unjust result). In contrast, the Board’s reading of the Zoning
Change Provision, while not resulting in absurdity, incorporates into the provision limitations
that simply were not written by the legislature. Accordingly, we reject the Board’s specific
argument on this point.
¶ 51 The other canon of construction that appears to be apt in the circumstances of this case is
the maxim of expressio unius est exclusio alterius, or the inclusion of one is the exclusion of
the other. In re Marriage of Hendry, 409 Ill. App. 3d 1012, 1018 (2011). The Zoning Change
Provision appears in a lengthy enumeration of the various powers a local school board may
exercise in discharging its responsibility to maintain, operate, and develop all of the schools
under its jurisdiction. See 105 ILCS 5/10-20 to 10-23.13 (West 2012). Being given the
express power “[t]o seek zoning changes, variations, or special uses for property held or
controlled by the school district” (105 ILCS 5/10-22.13a (West 2012)) suggests that the local
school board must apply for a zoning change, variance, or special use rather than exercise
zoning powers itself. In other words, under the expressio unius maxim, because the local
school board may seek a zoning change, it may not effect zoning regulations or changes on
its own. Thus, the expressio unius maxim suggests that the Board is subject to the City’s
zoning ordinances rather than immune from them.4 Accordingly, we hold that, under section
10-22.13a of the School Code, the Board must follow the requirements of the City’s zoning
ordinances.
¶ 52 The Board reviews several individual provisions of the School Code. Many of the
arguments associated with them are insubstantial, so we will address only those arguments
we deem strongest. The Board focuses on section 10-22.1 et seq. of the School Code (105
ILCS 5/10-22.1 et seq. (West 2012)), which set forth a local school board’s specific powers
and duties over school property. The Board seeks to make an ejusdem-generis- (enumeration
of a list requires that any other unenumerated things be of similar character (see Pooh-Bah
Enterprises, Inc. v. County of Cook, 232 Ill. 2d 463, 492 (2009))) or expressio-unius-type
contention regarding these sections. Most of the specific subsections highlighted by the
Board do not really support its contention; however, sections 10-22.35A and 10-22.36 (105
4
The Board does not make an argument specifically considering or challenging the expressio unius
maxim.
- 14 -
ILCS 5/10-22.35A, 10-22.36 (West 2012)) cannot be easily dismissed. In section 10-22.35A,
the local school board is empowered to purchase property and buildings for schools and to
condemn land for schools, if necessary. We believe that this section fairly supports the
Board’s position, because the purchase of property (or condemnation of land) for school use
seems to involve issues of land use, namely, whether a particular use is allowed in a
particular location in the municipality. However, the Board’s contention is undermined by
noting that the Zoning Change Provision allows and requires the local school board to avail
itself of the necessary procedures to effect a zoning change, variance, or special use as
necessary when property slated for school use is purchased or is obtained through
condemnation. Likewise, section 10-22.36 empowers the local school board to construct
school buildings. This section, too, would seem to involve issues of land use, namely the
dimensions and locations of buildings on the property. Once again, however, the contention
is defeated by the Zoning Change Provision.
¶ 53 As a side note, the Board’s statutory arguments suppose that the Health/Life Safety Code
controls all aspects of the construction of school structures, including those matters typically
falling under the aegis of zoning. However, the Health/Life Safety Code is, essentially, a
building code specifying the standards for the construction and maintenance of structures to
be used by the local school board and school district in fulfilling their duties to provide
public education to their students. We do not notice any provisions in the Health/Life Safety
Code that deal with land use or zoning; the Board similarly does not point to any such
provisions. Thus, the Board makes its statutory arguments with the unstated and faulty
assumption that the Health/Life Safety Code covers zoning-type issues. We reject this
assumption as unfounded and consider the Board’s characterization of the provisions of the
School Code without it.
¶ 54 The Board argues that section 10-22.31b of the School Code (105 ILCS 5/10-22.31b
(West 2012)) illustrates the principle that, if the legislature wanted to allow local
governments to have coordinate responsibilities over school facilities, it was able to do this
expressly. The conclusion implied is, of course, that the absence of an express assignment to
local municipalities of zoning oversight or responsibilities means an intent to allow the local
school board and school district to exercise exclusive authority over land use and zoning-type
issues. We acknowledge that this is a pretty good argument. Section 10-22.31b makes the
maintenance of residential facilities subject to applicable local and state health, licensing, and
life-safety requirements, as well as to the Health/Life Safety Code. 5 This argument fails
because there is no support for the idea that the school board or school district was granted
any authority over issues of land use, zoning, or zoning-type issues in the municipality
5
The reference to section 10-22.31b is actually in the nature of a throwaway line. The Board seeks
to make this point by referring to the authorizing provisions within section 2-3.12 of the School Code
(105 ILCS 5/2-3.12 (West 2012)), requiring the State Board of Education to create the Health/Life
Safety Code with input from the Department of Public Health and the State Fire Marshal, as well as
giving the State Fire Marshal authority to conduct fire-safety inspections of school facilities. This
aspect of the argument is weak because the statute does not give local governments any powers
concurrent with or over the local school board and school district; rather, it allows state agencies input
on drafting a building code and grants a state agency the responsibility to conduct a singular and
specialized investigation, which would appear to be beyond the expected competence levels of the
board and the district.
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containing the school facilities. If, for instance, there were a number of provisions that
created concurrent interests in a zoning issue, the Board’s argument would be much
weightier and more difficult to reject. However, the Board cites to only a single provision
giving such an interest to local governments, and this is simply not enough to establish the
point, especially given the lack of any express provisions according boards and districts the
power to determine land use and zoning for school property. Accordingly, while we
acknowledge that the Board’s argument is not bad, we remain unpersuaded.
¶ 55 The Board also seeks to convince us that the “for-school-purposes” test is a game
changer. The Board zeroes in on the underpinnings of and authority employing the
for-school-purposes test in an attempt to convince us that the Zoning Change Provision really
refers to property and facilities not used for school purposes, because property and facilities
used for school purposes are covered exclusively by the Health/Life Safety Code.
¶ 56 The Board invokes the for-school-purposes test as furthering the state’s constitutional
mandate to provide public education. The Board argues that differentiating between school
property used for school purposes and school property not used for school purposes is
supported by section 2-3.12 of the School Code (105 ILCS 5/2-3.12 (West 2012)) and makes
logical sense: property used for school purposes supports the constitutional public education
mandate and should fall under the Health/Life Safety Code, while property not used for
school purposes does not support the constitutional public education mandate and can be
regulated by local codes.
¶ 57 We agree that the for-school-purposes test exists and can be traced to the School Code
(105 ILCS 5/2-3.12 (West 2012)) and that it even appears in the Health/Life Safety Code (23
Ill. Adm. Code 180.30 (2007)). Further, the test clearly supports the Board’s position and,
standing alone, is persuasive. However, focusing on section 2-3.12 of the School Code to the
exclusion of all other sections is not a proper way to conduct statutory interpretation. See
Krautsack, 223 Ill. 2d at 553 (the court must give effect to the entire statutory scheme; the
words and phrases of the statute must not be viewed in isolation; rather, they must be
interpreted in light of other relevant portions of the statute). Thus, while the test is
undeniably established and useful, the simple fact of its existence proves nothing without
further context, such as a statutory basis, say, the Zoning Change Provision.
¶ 58 The Board also extensively surveys cases in which the for-school-purposes test has been
employed, such as cases involving testamentary gifts requiring the property to be used for
school purposes (e.g., Mahrenholz v. County Board of School Trustees, 188 Ill. App. 3d 260(1989) (storage); Wauconda Community Unit School District No. 118 v. La Salle National
Bank, 143 Ill. App. 3d 52 (1986) (storage and athletics)), the authority of school
administrations and the proper use of school funds (e.g., Wright v. Loring, 351 Ill. 584 (1933)
(disbursement on lawful school orders); Stowell v. Prentiss, 323 Ill. 309 (1926) (powers of
school trustees)), and taxation issues (e.g., Chicago Bar Ass’n v. Department of Revenue, 163
Ill. 2d 290 (1994) (bar association offices adjacent to law school); McKenzie v. Johnson, 98
Ill. 2d 87 (1983) (constitutionality of tax exemptions for parsonages, fraternities and
sororities, and homestead improvements)). The Board cites many more cases, especially tax
cases, and we have reviewed them.6
6
Notably, none of these cases involved the Health/Life Safety Code, and none of them used the
for-school-purposes test to determine the applicability of the Health/Life Safety Code.
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¶ 59 However, the Board cites only one case that used the for-school-purposes test to
determine the applicability of the Health/Life Safety Code: County of Lake, 325 Ill. App. 3d
694. That case grappled with which building code applied: the Health/Life Safety Code or
the county’s building code. Id. at 702. Even so, while County of Lake used the
for-school-purposes test to determine whether the Health/Life Safety Code applied to certain
school property, it was not in the context of determining whether the Health/Life Safety Code
applied instead of the local zoning code. Because none of the cases surveyed by the Board
dealt with zoning or land-use issues, they are of limited help, especially where the test is not
actually dispositive in the context of zoning or land-use issues.
¶ 60 Based on its survey of cases, the Board concludes that the for-school-purposes test “is the
proper test to apply in determining whether school property should be subject to local
regulation.” With the exception of County of Lake, none of the cases surveyed dealt with the
Health/Life Safety Code, and none of them involved zoning or land-use issues. The Board’s
conclusion, then, does not really follow, because the Board has not demonstrated that the
for-school-purposes test applies in a zoning situation. Likewise, the Board’s conclusion that
uses for school purposes fall outside of the City’s government and affairs is also
unsupported. We therefore reject the Board’s contentions on this point.
¶ 61 In addition to its arguments regarding the construction of the School Code, the Board
argues that there is no material difference in this case between zoning codes and building
codes. In support of this point, the Board cites City of Galena v. Dunn, 222 Ill. App. 3d 112(1991). The Board’s analysis of Dunn, however, is confusing and contrary to what we
perceive to be significant with respect to this case. Dunn explored whether an owner of
property outside of the city but within 1½ miles of the city’s corporate limits was required to
obtain a zoning certificate from the city or only a building permit from the county. Id. at 118.
The Board appears to suggest that Dunn stands for the precise proposition that, because there
is no statute “authorizing municipalities to impose just ‘building’ or just ‘zoning’
requirements on schools,” any difference between building codes and zoning codes is
immaterial in this case. Actually, Dunn recognizes the significant difference between zoning
and building codes: zoning codes regulate the height, bulk, and location of structures, the
types and intensities of uses to which property may be put, and where in the community
various uses may be grouped and located; building codes, by contrast, regulate the strength
and construction of buildings and their accessories. Id. at 120-21. Thus, we find Dunn to be
inapposite to the Board’s argument and fully supportive of the idea that there is a tangible
and important difference between zoning codes and building codes.
¶ 62 To the extent that the Board cites Dunn only to highlight its contention that there is no
statute empowering the City to impose a zoning code or a building code on a school district,
the contention is belied by section 10-22.13a of the School Code, which we have interpreted
to subject local school boards to municipal zoning regulations. Accordingly, we reject the
Board’s contention on this point.
¶ 63 The Board, in an, at best, disingenuous argument, notes that the General Assembly has
proposed an amendment to the Zoning Change Provision, which, if enacted, would require
school districts and their local school boards to comply with the zoning ordinances of the
municipalities in which they are located. The Board ignores and omits the amendment’s
language stating, “[t]he changes to this Section made by this amendatory Act of the 98th
General Assembly are declarative of existing law and do not change the substantive
- 17 -
operation of this Section.” 98th Ill. Gen. Assem., Senate Bill 2647, 2013 Sess. The omitted
language is of key significance, because where the language of an unambiguous statute is
changed, the implication is that the change is a substantive change to the law. Metropolitan
Life Insurance Co. v. Hamer, 2013 IL 114234, ¶ 25 (generally, an amendment to an
unambiguous statute gives rise to the presumption that the legislature intended to change the
law, but the presumption may be rebutted by evidence of a contrary legislative intent; where
an ambiguous statute is amended, no presumption arises that the legislature intended to
change the law).
¶ 64 Here, even if we assume that the Zoning Change Provision is unambiguous, the General
Assembly expressly states, in the text of the amendment itself, that it is only codifying what
it believes to be the existing law, so the change in language does not represent a substantive
change to the law. In other words, the General Assembly expressly rebuts the presumption
arising from a change in the statutory language. The Board’s argument is disingenuous
because, by omitting any reference to the language noted, the Board appears to insinuate
(without actually saying) that the law is being changed by the language stating that local
school boards and school districts are subject to the local municipality’s zoning ordinances.
Accordingly, we reject the Board’s argument, and we condemn the Board’s disingenuity in
the strongest possible terms.
¶ 65 The Board argues that, because of the importance of public education and the School
Code’s effective preemption of the field, a local municipality may not validly enact any
ordinance that intrudes upon the field, and this includes zoning regulations. We disagree.
¶ 66 First, we note that the Board is offering a high-level recapitulation of its main argument,
but in terms that illustrate a fundamental problem. The argument deals with public education,
but the conclusion drawn from the argument deals with land use. Under the constitution and
the relevant statutes, “public education” comprises the tasks of educating students and
providing safe and appropriate facilities for them. Further, providing facilities involves
standards for construction and maintenance. However, but for the Zoning Change Provision,
there is nothing in the constitution and relevant statutes addressing zoning and land use.
Zoning and land use do not impinge upon any facet of public education, but deal with the
orderly arrangement of land use within a municipality as well as the details of siting a
structure on property, the structure’s allowable dimensions, and its aesthetics. In other words,
the conclusion (about zoning and land use) is a non sequitur because it does not follow from
the propositions (about public education) that the Board is attempting to establish. Logically,
then, the argument is fundamentally flawed.
¶ 67 The Board argues that a proper construction of the School Code necessarily prohibits
local municipalities from enacting ordinances and regulations impinging in any manner upon
public education. Above, we have refuted this argument generally. In short, while the Board
seeks to keep the City out of its prerogatives, it is established that home-rule units may
concurrently regulate areas already regulated by the state, so long as the legislature has not
preempted the field and the matter pertains to the home-rule unit’s government and affairs. In
other words, “[s]imply because a matter is one of statewide concern *** does not necessarily
mean that the matter is not also of concern to local governments”; it is up to the courts to
determine which matters are of sufficiently local character so as to be subject to (the
concurrent exercise of) home-rule powers and which matters are primarily of statewide
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concern and therefore beyond the reach of home-rule powers. La Salle National Trust, N.A. v.
Village of Mettawa, 249 Ill. App. 3d 550, 575 (1993).
¶ 68 Nevertheless, the Board attempts to cinch its contention that zoning stops at the border of
school property by considering only a few specific sections of the School Code, and from
them making a sort of hybrid argument that the School Code demonstrates that the state has
preempted the field and that anything to do with public schools is of statewide, and not local,
concern. Specifically, in the first step of its argument, the Board contends that statewide
concern may be inferred from comprehensive legislation. In support, the Board cites La Salle
National and JLR Investments, Inc. v. Village of Barrington Hills, 355 Ill. App. 3d 661 (2005),
both of which considered whether disconnection and the operation of local ordinances on the
subject of disconnection were of sufficiently local character to stand, or whether
disconnection was properly a matter of statewide concern thereby invalidating the local
disconnection ordinances. In the second step, the Board points to a number of provisions of
the School Code, claiming that they demonstrate that public education is a statewide, as
opposed to local, concern. We first consider La Salle National and then JLR Investments.
¶ 69 The issue posed in La Salle National concerned the validity of a local ordinance, which
imposed the further step of requiring local approval by referendum after the trial court made
a determination that the disconnection petition met all statutory requirements. La Salle
National, 249 Ill. App. 3d at 573. We concluded that the ordinance was, in fact, invalid and
unenforceable. We first approached the question from the standpoint of whether
disconnection was a matter of local or statewide concern. We reasoned that, while the
disconnection had local effects so that both the local and state governments had reason to be
interested in the disconnection, the state had traditionally played a dominant role in
regulating disconnection. Id. at 575. We noted that the state had the power to change
municipal boundaries and that municipal corporations were creatures of the state and were
subject to the will and discretion of the legislature. Id. at 575-76. Also supporting our
conclusion, we emphasized that the village did not and could not cite any case in which a
local government exercised concurrent power with the state over a disconnection matter.
Id. at 576. We also rejected the idea that local governments had traditionally exercised great
control over their municipal boundaries, because that contention was supported only with
annexation cases, and the annexation statute expressly required that, after a trial court granted
an annexation petition, the local government was given a continuing role, whereas in the
disconnection statute, the local government’s involvement was only as a defendant in the trial
court, and its involvement did not continue after the disconnection had been granted. Id. Last,
we looked to the terms of the statute and concluded that the “careful setting out of the roles
of the parties with only a limited role given to the municipality certainly supports a
conclusion that the legislature intended disconnection to be a matter of exclusive State
control–a matter of statewide concern.” Id. at 577. We note that the Board cites La Salle
National solely for the immediately preceding quote and ignores the other bases for our
decision. Further, from the immediately preceding quote, the Board concludes that the
creation of a “comprehensive statutory scheme” (which, we think, is shorthand for an
extremely long statute) implies that the statutory subject is a matter of statewide concern.
¶ 70 Looking at the entirety of the analysis in La Salle National, we see that the Board’s
proposition, that a comprehensive statutory scheme indicates that the statute’s subject is a
matter of statewide concern, is not an entirely apt summary of that analysis. While the
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determination of what constitutes a matter of statewide versus local concern was definitely in
play, La Salle National focused on the issue of a disconnection from a local municipality.
Our analysis considered three general areas: existing authority (whether any cases had been
presented), the traditional interests of the state and the local government, and the language of
the statute itself. See id. at 573-77 (“[t]he determination of whether a given matter is of
statewide or local dimension cannot be made on the basis of a specific formula or listing of
criteria, but must be made ‘with regard for the nature and extent of the problem, the units of
government which have the most vital interest in its solution, and the role traditionally played
by local and statewide authorities in dealing with it’ ” (quoting Kalodimos v. Village of
Morton Grove, 103 Ill. 2d 483, 501 (1984))). Key to our determination were the facts that
there was no authority to support the proposition that disconnection was sufficiently a matter
of local concern to allow a local government to have concurrent powers with the state, and
that the language of the disconnection statute provided no role for local government other
than that of defendant, while the annexation statute provided a role for local government after
the judicial determination.
¶ 71 The Board also relies on JLR Investments, in which this court again considered whether
disconnection was a matter of local or statewide concern. In JLR Investments, we relied on
La Salle National, which provided little, if any, additional or new analysis on the question,
and held, again, that disconnection was a matter of statewide concern. JLR Investments, 355
Ill. App. 3d at 666-67.
¶ 72 Both La Salle National and JLR Investments use a more thoroughgoing analysis than the
summary presented by the Board suggests. If the dispositive question were simply whether
public education is a matter of statewide concern, the Board’s characterization of La Salle
National and JLR Investments would certainly suffice. However, the question actually
answered in both La Salle National and JLR Investments was whether the matter was of
sufficiently local character so as to be subject to the concurrent exercise of home-rule powers
or whether it was of primarily statewide concern and therefore beyond the reach of home-rule
powers. Thus, the two cases employed an analysis that went beyond establishing whether the
matter was of statewide concern.
¶ 73 Applying the three parts of the analysis in La Salle National here, we get the same result
that we have reached above. As noted, La Salle National looked at existing precedent, the
traditional interests of state and local governments, and the language of the statute. La Salle
National, 249 Ill. App. 3d at 573-77. Here, the Board has presented no case that is directly on
point. Likewise, our research has found no case directly on point. In La Salle National and
JLR Investments, this weighed against the local municipality. We are not so sure that this
applies in this case: we wonder if the application of local zoning ordinances to local school
boards and school districts has not previously been challenged because it was assumed that
they obviously did apply, rather than that they obviously did not. Even if we assume that this
aspect of the analysis weighs somewhat against the City, the other two aspects are strongly in
favor of the City.
¶ 74 The second portion of the analysis considers the traditional state and local governments’
interests. Traditionally, the state has ceded control of land-use decisions to local
municipalities. This is seen in the absence of any statewide zoning code and the grant of
zoning authority in the Illinois Municipal Code (65 ILCS 5/11-13-1 et seq. (West 2012)). On
the other hand, the state is concerned with public education (primarily meaning the teaching
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of students) to the general exclusion of local municipalities. However, the School Code does
not contain any provisions concerned with land-use regulations (with the exception of the
Zoning Change Provision, which supports the conclusion that local school boards and school
districts are in fact subject to local municipalities’ zoning regulations). This point requires
weighing the two competing interests, and, since the School Code is silent on land use,
presumably the state’s interest in regulating school land use is less than the local
municipality’s interest. Accordingly, we believe that this point tips rather strongly in favor of
the City.
¶ 75 Last, we consider the language of the statutes. We have done so above and concluded
that, under the principles of statutory construction, local school boards and school districts
are subject to local municipalities’ zoning regulations. This portion of the analysis also
strongly favors the City. Thus, applying the La Salle National analysis, we believe that on
balance it favors the City’s position that the Board is subject to its zoning ordinances.
¶ 76 The Board also argues that the School Code provides “municipalities with a specific,
limited role in matters of school construction,” citing section 3-14.20 of the School Code
(105 ILCS 5/3-14.20 (West 2012)). This section allows a municipality to register to receive
notification of the plans for a school district’s proposed construction or alteration of a
facility. Id. The section further allows the municipality to “comment in writing on the plans
and specifications based on the [Health/Life Safety Code], referencing the specific code
where a discrepancy has been identified.” Id. The Board is again arguing that, if the
legislature had intended for a local municipality to be able to exercise concurrent power over
a matter pertaining to public schools, it would have expressly granted that power. We
disagree. The section allows the local municipality to comment only on discrepancies
between the proposed plans and the Health/Life Safety Code, which, as we have noted, is in
the nature of a building code (indeed, the provision refers to the “building code authorized”
by section 2-3.12 (105 ILCS 5/2-3.12 (West 2012)) and does not contain provisions
regarding land use and zoning. 105 ILCS 5/3-14.20 (West 2012). Moreover, the sections of
the School Code to which the Board points all deal with the power to inspect structures or
plans for proposed structures, and this power does not on its face (and is not argued to)
involve any land-use or zoning issues. Thus, while a fair point, the Board’s contention is not
adequately supported textually and we reject it.
¶ 77 Based on the foregoing, we have determined that statutory interpretation leads to the
conclusion that local school boards and school districts are subject to the zoning code of the
municipality in which they reside. Specifically, we held that the Board was properly subject
to the City’s zoning ordinances. We also reviewed the Board’s arguments, those both directly
opposed to our conclusions and proffered in favor of its position, and we determined that,
while the Board had made some good points, they were ultimately unpersuasive. We now
turn to the Board’s remaining arguments on appeal.
¶ 78 D. Other Considerations
¶ 79 While this case presents an issue of apparent first impression, namely, whether local
school boards and districts are subject to the land-use and zoning regime of the municipality
in which they reside, courts have long been dealing with the issue of when home-rule units
may concurrently regulate in areas of statewide concern in keeping with the requirements set
forth in section 6 of article X of the Illinois Constitution of 1970. In City of Chicago v.
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StubHub, Inc., 2011 IL 111127, ¶¶ 24-25, the supreme court noted that Kalodimos v. Village
of Morton Grove, 103 Ill. 2d 483 (1984), had clarified the analysis and become settled law.
The court divided its analysis into three parts: first, assessing the nature and extent of the
problem (StubHub, 2011 IL 111127, ¶ 26); next, determining whether the state or the
municipality has a greater interest in solving the problem (id. ¶ 27); and last, determining
whether the state or the municipality has a traditional role in solving the problem (id. ¶ 35).
¶ 80 Applying these principles to the facts of this case, we determine that the City may enforce
its zoning regulations against the Board. In the first step of the analysis, we must assess the
nature and extent of the problem. In our view, the problem is to what extent the City can
regulate land uses and zoning on the District’s property. The City has a vital interest in
regulating the land use of all property in its corporate boundaries. Likewise the state has a
vital interest in providing public education to the District’s students. It would appear that the
two interests here do not conflict.
¶ 81 The Board takes a different view of the nature and extent of the problem. According to
the Board, the issue is “ ‘conserv[ing] the health and safety and general welfare of the pupils
and school personnel and others who use public school facilities’ ” (quoting 105 ILCS
5/2-3.12(a) (West 2012)). We do not believe that the Board has appropriately characterized
the problem. In the first place, the StubHub analytical framework applies only with respect to
whether a home-rule unit may concurrently promulgate regulations in an area of statewide
concern, and the Board’s conception of the problem deletes the home-rule unit altogether
from the equation. The other main problem is that the Board views the problem in terms of
its own interest; because the Board is not a home-rule unit, its own interest would seem to be
incompatible with an analysis of whether the state has a greater interest in the issue than the
home-rule unit. Thus, we reject the Board’s framing of the issue and conclude that the state’s
interest and the City’s interest in the problem do not conflict and that, if they overlap, it is in
a very small way.
¶ 82 The next step of the StubHub analytical framework is to determine whether the state or
the City has the greater interest in solving the problem. The regulation of zoning and land use
is a local concern in which the state has no interest. There are no statutes that provide for a
statewide scheme of zoning. Further, the City’s regulation of zoning and land use would not
seem to impinge on the state’s ability to provide public education through the District. On
balance, this step favors the City.
¶ 83 The Board frames this step as determining whether the City or the state “has a greater
interest in regulating property used for school purposes.” While this is a better statement of
the issue than the one offered for the first step, the analysis is a recapitulation of the Board’s
argument in section A above. We have already dealt with that argument and determined it to
be unpersuasive, and the Board’s recapitulation offers nothing new or more persuasive.
Accordingly, we reject the Board’s analysis on this point.
¶ 84 The final step is to determine whether the state or the City has a traditional role in
regulating the land use and zoning of the District’s property. Once again, there are no state
zoning statutes; land use and zoning is traditionally a local issue. Further, the regulation of
land use and zoning does not seem to impact the state’s ability to provide public education
through the District. This step solidly favors the City.
¶ 85 The Board frames the final step similarly to the second step, asserting that the issue “is to
determine whether the state or the City has a traditional role in regulating property used for
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school purposes.” Once again, the Board recapitulates earlier arguments we have already
rejected and offers nothing new or more persuasive.
¶ 86 Looking at the totality of the StubHub analytical rubric, we conclude that the regulation
of zoning and land use of the District’s property pertains to the government and affairs of the
City. The problem is whether the City’s zoning powers will impede the state’s ability to offer
public education; there appears to be little intersection between zoning and public education
such that the City should be precluded from enforcing its zoning ordinances. Likewise, due to
the separateness of zoning and public education, the City has a greater interest in solving the
problem as well as a traditional role in solving the problem. The Board’s argument is
problematic, because it has removed the City from its consideration of the issue and
substituted itself and the District in considering whose interests are paramount. The Board
further conflates the regulation of the District’s property with public education, as if they
were one and the same thing, and so we determine that its analysis according to the StubHub
framework is unpersuasive.
¶ 87 The Board argues that various cases support its StubHub analysis. We address them in
turn and as necessary.
¶ 88 The Board cites County of Lake, 325 Ill. App. 3d at 698, for its holding that the
Health/Life Safety Code applied in lieu of the county’s building code, and concludes from
that holding that the Health/Life Safety Code similarly should trump the City’s zoning
ordinances. We disagree. A building code regulates the construction and maintenance of
structures; a zoning code does not. County of Lake does not help the Board here.
¶ 89 The Board cites Board of Education of Community Consolidated School District No. 15 v.
City of McHenry, 71 Ill. App. 3d 904, 908 (1979), to illustrate the difference between
regulating a school district (impermissible) and collecting revenue from a school district
(permissible). We are not convinced that the Board has properly characterized the holding in
that case. That said, the Board seeks to argue that, here, the zoning ordinances represent
improper regulation of the business of school construction. We disagree. Zoning ordinances
do not interfere with the Health/Life Safety Code, and it is the Health/Life Safety Code that
“regulates the business” of school construction. City of McHenry is distinguishable and does
not help the Board’s position.
¶ 90 The Board also cites City of Joliet v. Snyder, 317 Ill. App. 3d 940, 944-45 (2000), for the
proposition that a municipality may not interfere, through zoning, with the state’s attempts to
carry out a statutory duty encompassing a statewide concern. The Board implies that it is
standing as a proxy for the state and attempting to carry out its statutory duties encompassing
the statewide concern of public education. We find Snyder to be distinguishable. In that case,
the state itself, represented by the Illinois Department of Corrections and the Illinois
Department of Human Services, was carrying out its statutory duties. Id. Here, the Board is
not a state-government-level executive department; rather, it is a local-level entity, on par
with, if not below, the City as a unit of local government. Thus, the local government is not
impinging upon the state’s efforts to carry out its statutory duties.
¶ 91 The Board also cites Metropolitan Sanitary District of Greater Chicago v. City of
Des Plaines, 63 Ill. 2d 256, 260-61 (1976), for the proposition that a local governmental unit
cannot impede a regional governmental entity in the performance of its duties by trying to
make the regional entity conform to local regulations. The Board contends that, because its
territory spans 2 counties and provides services to 10 municipalities, it should be accorded
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the status of a regional governmental entity. We find the Board’s proposition to be off point.
The issue here is whether the City’s zoning ordinances apply to Crystal Lake South High
School’s reconstructed bleachers. Requiring conformity to the City’s zoning ordinances will
not prevent the Board and the District from carrying out their duties to provide public
education to the residents of the District. Moreover, there is a distinct “not in my backyard”
element in Metropolitan Sanitary, where the city tried to block the construction of a sewage
treatment plant; here, by contrast, the City is not trying to block the construction of a school,
instead it is trying to get the reconstructed bleachers to comply with its zoning ordinances,
so, once again, there is no issue of frustrating or preventing a regional entity from performing
its statutory duties.
¶ 92 The Board cites additional cases that we have not addressed, but they repeat the points
raised in the cases that we have reviewed; no purpose other than to further numb the reader
would be served to discuss them. With that, we do not believe that the cases cited by the
Board further its analysis under the StubHub rubric or otherwise help its position.
¶ 93 III. CONCLUSION
¶ 94 For the foregoing reasons, the judgment of the circuit court of McHenry County is
affirmed.
¶ 95 Affirmed.
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