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.
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