16497127793_0e93b0b7cd_zDuring its May term, the Illinois Supreme Court heard oral argument in Gurba v. Community High School District No. 155, a decision from the Second District which poses the question: are school districts subject to local zoning? Based upon the questioning patterns in oral argument, the Court appeared skeptical of the school district’s claim. Our detailed summary of the facts and lower court opinions in Gurba is here.

Gurba began when the defendant school district replaced the bleachers at the high school football field. The City issued a stop-work order against the School Board and the plaintiffs sued, seeking to privately enforce various zoning and stormwater ordinances. The parties filed cross-motions for summary judgment, and the trial court found for the plaintiffs, determining that the school district was indeed subject to the local zoning ordinances. The Appellate Court affirmed.

Counsel for the school board began the argument, arguing that the Appellate Court had erred by departing from a line of authority settling the power of the General Assembly over school districts. The Appellate Court had come up with its own definition of public education, counsel argued. As a constitutional matter, public education was committed to the General Assembly, and it was beyond the province of the courts to determine what public education should look like. Nevertheless, the Second District had decided for itself what was and was not public education, and had applied their definition narrowly throughout. Justice Freeman asked whether the Court’s decision in Board of Education of School District No. 150 v. City of Peoria was dispositive. When counsel said yes, Justice Freeman asked whether the issue was if health and safety ordinances are enforceable against school districts. Counsel responded that the City of Peoria court had reserved that issue, but all the analysis behind the decision was dispositive. Justice Burke asked how local zoning laws are similar to the tax laws in City of Peoria. Counsel answered that they are actually more oppressive. Justice Burke asked whether there is a conflict between the zoning laws and the School Code. Counsel said that whether or not there’s a direct conflict, the point is this. It is up to the General Assembly to delegate jurisdiction over schools’ buildings and grounds. But the legislature didn’t delegate authority to municipalities to enforce zoning. Justice Thomas suggested that if the Court agrees with the defendant, schools can just ignore local zoning and storm water management regulations. Counsel answered that the nature of the property being used drives the results. The school district is immune from any regulation not authorized by the General Assembly. Justice Thomas noted that the bleachers at issue are double the size of the structure they replaced – could a twenty-story building be built if it was for school purposes? Counsel said yes, if the school district could convince the superintendent to approve it. The Chief Justice asked whether a school could decide to start raising livestock in the middle of a town if they had an animal sciences class, and counsel said yes, if the regional superintendent approves. Counsel pointed out that there’s an agricultural high school on the south side of Chicago. Justice Thomas asked whether the home rule cases affected counsel’s argument. Counsel answered that matters committed to the General Assembly fall outside home rule. Nevertheless, applying the usual home rule test led to the conclusion that the zoning rules didn’t apply. Justice Theis pointed out that the General Assembly had given school boards the authority to affirmatively seek zoning changes – that seemed to suggest a relationship between the school board and zoning laws. Counsel answered that that was a power to petition the zoning board, not a duty. The City’s position would undo that provision and make the relationship with the zoning boards into a duty. Justice Theis suggested that school boards aren’t beyond the zoning laws, since the Code appeared to have in mind that school boards would sometimes seek zoning changes. Counsel explained various ways in which the power could be used, including with respect to property not being used for school purposes and as a condition of granting permission to encroach on a right of way. But whether or not the municipalities could unilaterally impose zoning over the school board’s objection was another issue.

Counsel for the regional superintendent followed, arguing that the Second District’s decision left her client with no indication of how to handle these matters. Justice Burke asked whether the City was notified of the bleachers before construction. Counsel answered that the right to notice required an affirmative step from the city. Once the City tells the superintendent that it’s interested in the construction project, the superintendent must notify the jurisdiction of all actions. Justice Burke asked whether the school board had a reciprocal duty to notify the City of projects without awaiting an expression of interest. Counsel answered that the School Code doesn’t impose a duty to inform the City in the first instance. The first duty is imposed by the School Code on the City, not the school board. Justice Burke asked whether the City had given any indication of interest. Counsel said no.

Counsel for the City followed, arguing that while the General Assembly has plenary power over schools, the Constitution had not released school districts from complying with the School Code or “any other laws.” Those include zoning. The School Code expressly authorizes school boards to seek relief from those laws through the standard zoning process. The state Life Safety Code and review by the superintendent don’t supplant zoning, counsel argued. The Chief Justice asked whether affirming might involve a risk that parochial concerns might interfere with state control over education. Counsel said no, the kinds of issues which arise in land use disputes are not the sort of policies dictated by the General Assembly. The zoning process looks at land use from a perspective of adverse impact to outside properties – that’s not an issue accounted for in the School Code. Counsel argued that home rule was an unnecessary distraction – the case could be resolved by looking at the statutes and division of authority between schools and municipalities. But if the analysis reached the Stub Hub home rule factors, counsel argued, the case was clearly right decided. The problem is local, counsel argued; the essential character of zoning is local. The General Assembly could have placed zoning on a statewide level, but it didn’t. Counsel argued that education can’t flaunt its importance by poking every neighbor in the eye.

Counsel for the local landowners was next, and argued that the question presented was whether an adjacent landowner could be totally denied due process. If the issue truly was one of first impression, counsel argued, why hadn’t the school district brought a declaratory judgment action? Why hadn’t they given the property owners an opportunity to act?

Counsel for the school district concluded in rebuttal, arguing that there was a timely process which the City could have invoked if it had chosen to. The landowners’ rights weren’t being decided in the litigation, counsel argued. Anyway, the landowners’ objections were intensely local, and that is why the State couldn’t allow municipalities to regulate state-wide concerns over education. Ultimately it is up to the General Assembly to decide whether schools must comply with zoning, and they haven’t done so. Justice Kilbride asked whether there was any provision in the School Code saying zoning doesn’t apply. Counsel said no, but that’s not the issue. The state school board and the School and Life and Safety Codes govern school construction, subject to the superintendent’s approval. Justice Thomas asked whether the superintendent was taking the position that as long as all the parts of the application are in line, the superintendent is required to approve the application. Counsel answered yes. Justice Thomas suggested that counsel seemed to indicate that that process is a protection to the homeowners – where was the protection? Counsel explained that the issues of size and setback are addressed in the Health Life Safety Code. The Code says that the permissible height and size of the bleachers is unlimited. The Superintendent is also required to consider the location of the project in relation to the neighboring property. If the City had participated in the process, they could have said that the bleachers were much too close to the other property lines.

We expect Gurba to be decided in three to four months.

Image courtesy of Flickr by D. J. Bustos (no changes).