Daily Development for
Thursday, July 15. 1999
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
ZONING AND PLANNING;
PROCEDURE; JUDICIAL REVIEW: Fiveyear statute of limitations for "all civil
actions not otherwise provided for," rather than oneyear statute of
limitations under Local Governmental and Governmental Employees Tort Immunity
Act, governed action brought by developers to challenge constitutional and
statutory validity of impact fees required by village for issuance of building
permit.
Raintree Homes v. Village
of Kildeer, 705 N.E.2d 953 (Ill.App. 2 Dist. 1999).
Plaintiff Raintree was engaged
in building residential homes in the Village of Kildeer. The Village adopted by
ordinance a schedule of impact fees required to be paid as a condition of
obtaining a building permit for a residential unit. The Northern Illinois
Homebuilders Association sent a letter to the Village opining that the fees
imposed by the ordinance would not survive a constitutional challenge. The
Village subsequently amended its fee ordinance, repealing the original
ordinance and adopting a different fee schedule.
Raintree filed suit
against the Village a little more than one year after the repeal of the
original ordinance, alleging that it paid fees to the Village under one or both
of the ordinances in order to obtain building permits from the Village. Raintree
alleged that the fees were unconstitutional and beyond the Village's statutory
authority. The trial court found that Raintree had pleaded a "tort type
action" and that the action was time barred under the oneyear the statute
of limitations for civil actions filed against a local public entity. Raintree
appealed.
On appeal, Raintree
contended that the oneyear statute of limitations contained in the Tort
Immunity Act and applied by the trial court applied only to tort claims and was
therefore inapplicable to its Constitutional claims. The Village responded that
the Tort Immunity Act extended to any civil action brought against a local
public entity. The Appellate Court found that such a claim is based upon an
abuse of governmental authority and is not a tort action. Therefore, the Court
held that fiveyear statute of limitations for "all civil actions not
otherwise provided for," rather than oneyear statute of limitations under
the Tort Immunity act, governed Raintree's action.
Comment 1: Illinois has
always been one of the states least friendly toward the government position in
the zoning debate. This decision continues the trend. Other jurisdictions'
courts have bent over backwards to set up procedural difficulties for suits
against zoning authorities, on the notion that such suits are potential
"bankbusters," the threat of which might prevent sound land use
policies from being carried out.
Comment 2: There does not
appear to be any requirement stated here that the fees be paid "under
protest." Presumably, if a developer should ever successfully challenge an
exaction scheme, then the City will have to brace itself for five years of
prior developer, already enjoying their developments and the public benefits
provided to serve them, now demanding refunds of monies the City exacted for
the purpose primarily of funding those benefits.
Items in the Daily
Development section generally are extracted from the Quarterly Report on Developments
in Real Estate Law, published by the ABA Section on Real Property, Probate
& Trust Law. Subscriptions to the Quarterly Report are available to Section
members only. The cost is nominal. For the last six years, these Reports have
been collated, updated, indexed and bound into an Annual Survey of Developments
in Real Estate Law, volumes 16, published by the ABA Press. The Annual Survey
volumes are available for sale to the public. For the Report or the Survey,
contact Maria Tabor at the ABA. (312) 988 5590 or mtabor@staff.abanet.org
Items reported here and
in the ABA publications are for general information purposes only and should
not be relied upon in the course of representation or in the forming of
decisions in legal matters. The same is true of all commentary provided by
contributors to the DIRT list. Accuracy of data and opinions expressed are the
sole responsibility of the DIRT editor and are in no sense the publication of
the ABA.