Daily Development for Tuesday, July 10, 2001
By: Patrick A.
Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
prandolph@cctr.umkc.edu
ZONING AND LAND USE; PREEMPTION: Housing of sexually violent persons did not concern
"governmental affairs" of home rule unit city, and thus, state was
not required to seek permit under city zoning ordinance before renovating
detention facility to house sexually violent persons.
City of Joliet v. Snyder, 741 N.E.2d 1051 (Ill.App.3 Dist.
2000).
The city of Joliet ("City") a home rule unit city,
sued the State, seeking declaratory judgment that the State was required to seek a permit under the city zoning
ordinance before renovating a detention facility to house sexually violent
persons. City also requested an injunction to stop the renovations.
The Circuit Court granted the State's motion to dismiss and
the Appellate Court of Illinois affirmed the judgment that a municipality may
not force the State to apply for a Special Permit where the State is carrying
out a statutory duty encompassing a statewide concern. The question of whether the City may force
the state to abide by zoning ordinance is a question of law which the court
reviews de novo.
Under the Illinois Constitution any municipality with a
population of over 25,000 persons is a home rule unit. A home rule unit may exercise any power and
perform any function pertaining to its "government and affairs"
including the power to regulate for protection of public health, safety, morals
and welfare. The court found that the
housing, care and control of sexually violent person is a statewide concern and
does not pertain to the "government and affairs" of the City as a
home rule unit. To allow the City to force the State to get apply for a Special
Permit would frustrate the statutory purpose of the Sexually Violent Persons
Commitment Act. Moreover, the State is
required to carry out the terms of the Sexually Violent Persons Commitment Act. Therefpre, the State did not need to apply
for a Special Permit to convert the facility.
Comment: The law pertaining to home rule cities and
counties, and to state government's preemptive powers as well, differs markedly
from state to state. Normally, this
service would not run items of purely
local concern, but the editor suspects that this issue is one that is arising
more and more often around the country, and there is sufficient commonality in
the State/charter city debate to make the case at least of passing interest
nationwide.
Comment 2: Compare the recently reported case of Naylor v. Township of Hellam, No. J662000, 2001 WL 690655 (Pa. 6/ 20/01), where the Pennsylvania Supreme Court rejected the proposition that a home rule city had inherent powers to legislate zoning rules different from those established under the state zoning enabling act. Are we seeing a trend? Are charter cities getting trashed nationwide? (Probably not but comment inserted for added drama.)
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