Public Act 90-0522 of the 90th General Assembly
Public Act 90-0522
SB1109 Enrolled SRS90S0045PMch
AN ACT concerning county zoning, amending named Acts.
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
Section 5. The Counties Code is amended by changing
Section 5-12001 and adding Section 5-12001.1 as follows:
(55 ILCS 5/5-12001) (from Ch. 34, par. 5-12001)
Sec. 5-12001. Authority to regulate and restrict
location and use of structures.
For the purpose of promoting the public health, safety,
morals, comfort and general welfare, conserving the values of
property throughout the county, lessening or avoiding
congestion in the public streets and highways, and lessening
or avoiding the hazards to persons and damage to property
resulting from the accumulation or runoff of storm or flood
waters, the county board or board of county commissioners, as
the case may be, of each county, shall have the power to
regulate and restrict the location and use of buildings,
structures and land for trade, industry, residence and other
uses which may be specified by such board, to regulate and
restrict the intensity of such uses, to establish building or
setback lines on or along any street, trafficway, drive,
parkway or storm or floodwater runoff channel or basin
outside the limits of cities, villages and incorporated towns
which have in effect municipal zoning ordinances; to divide
the entire county outside the limits of such cities, villages
and incorporated towns into districts of such number, shape,
area and of such different classes, according to the use of
land and buildings, the intensity of such use (including
height of buildings and structures and surrounding open
space) and other classification as may be deemed best suited
to carry out the purposes of this Division; to prohibit uses,
buildings or structures incompatible with the character of
such districts respectively; and to prevent additions to and
alteration or remodeling of existing buildings or structures
in such a way as to avoid the restrictions and limitations
lawfully imposed hereunder: Provided, that permits with
respect to the erection, maintenance, repair, alteration,
remodeling or extension of buildings or structures used or to
be used for agricultural purposes shall be issued free of any
charge. The corporate authorities of the county may by
ordinance require the construction of fences around or
protective covers over previously constructed artificial
basins of water dug in the ground and used for swimming or
wading, which are located on private residential property and
intended for the use of the owner and guests. In all
ordinances or resolutions passed under the authority of this
Division, due allowance shall be made for existing
conditions, the conservation of property values, the
directions of building development to the best advantage of
the entire county, and the uses to which property is devoted
at the time of the enactment of any such ordinance or
resolution.
The powers by this Division given shall not be exercised
so as to deprive the owner of any existing property of its
use or maintenance for the purpose to which it is then
lawfully devoted; nor shall they be exercised so as to impose
regulations or require permits with respect to land used or
to be used for agricultural purposes, other than parcels of
land consisting of less than 5 acres from which $1,000 or
less of agricultural products were sold in any calendar year
in counties with a population between 300,000 and 400,000 or
in counties contiguous to a county with a population between
300,000 and 400,000, and other than parcels of land
consisting of less than 5 acres in counties with a population
in excess of 400,000, or with respect to the erection,
maintenance, repair, alteration, remodeling or extension of
buildings or structures used or to be used for agricultural
purposes upon such land except that such buildings or
structures for agricultural purposes may be required to
conform to building or set back lines; nor shall any such
powers be so exercised as to prohibit the temporary use of
land for the installation, maintenance and operation of
facilities used by contractors in the ordinary course of
construction activities, except that such facilities may be
required to be located not less than 1,000 feet from any
building used for residential purposes, and except that the
period of such temporary use shall not exceed the duration of
the construction contract; nor shall any such powers include
the right to specify or regulate the type or location of any
poles, towers, wires, cables, conduits, vaults, laterals or
any other similar distributing equipment of a public utility
as defined in The Public utilities Act, if the public utility
is subject to The Messages Tax Act, The Gas Revenue Tax Act
or The Public Utilities Revenue Act, or if such facilities or
equipment are located on any rights of way and are used for
railroad purposes, nor shall any such powers be exercised in
any respect as to the facilities, as defined in Section
5-12001.1, of a telecommunications carrier, as also defined
therein, except to the extent and in the manner set forth in
Section 5-12001.1. As used in this Act, "agricultural
purposes" do not include the extraction of sand, gravel or
limestone, and such activities may be regulated by county
zoning ordinance even when such activities are related to an
agricultural purpose.
Nothing in this Division shall be construed to restrict
the powers granted by statute to cities, villages and
incorporated towns as to territory contiguous to but outside
of the limits of such cities, villages and incorporated
towns. Any zoning ordinance enacted by a city, village or
incorporated town shall supersede, with respect to territory
within the corporate limits of the municipality, any county
zoning plan otherwise applicable. The powers granted to
counties by this Division shall be treated as in addition to
powers conferred by statute to control or approve maps, plats
or subdivisions. In this Division, "agricultural purposes"
include, without limitation, the growing, developing,
processing, conditioning, or selling of hybrid seed corn,
seed beans, seed oats, or other farm seeds.
Nothing in this Division shall be construed to prohibit
the corporate authorities of a county from adopting an
ordinance that exempts pleasure driveways or park districts,
as defined in the Park District Code, with a population of
greater than 100,000, from the exercise of the county's
powers under this Division.
(Source: P.A. 88-623, eff. 1-1-95; 89-654, eff. 8-14-96.)
(55 ILCS 5/5-12001.1 new)
Sec. 5-12001.1. Authority to regulate certain specified
facilities of a telecommunications carrier.
(a) Notwithstanding any other Section in this Division,
the county board or board of county commissioners of any
county shall have the power to regulate the location of the
facilities, as defined in subsection (c), of a
telecommunications carrier established outside the corporate
limits of cities, villages, and incorporated towns that have
municipal zoning ordinances in effect. The power shall only
be exercised to the extent and in the manner set forth in
this Section.
(b) The provisions of this Section shall not abridge any
rights created by or authority confirmed in the federal
Telecommunications Act of 1996, P.L. 104-104.
(c) As used in this Section, unless the context
otherwise requires:
(1) "county jurisdiction area" means those portions
of a county that lie outside the corporate limits of
cities, villages, and incorporated towns that have
municipal zoning ordinances in effect;
(2) "county board" means the county board or board
of county commissioners of any county;
(3) "residential zoning district" means a zoning
district that is designated under a county zoning
ordinance and is zoned predominantly for residential
uses;
(4) "non-residential zoning district" means the
county jurisdiction area of a county, except for those
portions within a residential zoning district;
(5) "residentially zoned lot" means a zoning lot in
a residential zoning district;
(6) "non-residentially zoned lot" means a zoning
lot in a non-residential zoning district;
(7) "telecommunications carrier" means a
telecommunications carrier as defined in the Public
Utilities Act as of January 1, 1997;
(8) "facility" means that part of the signal
distribution system used or operated by a
telecommunications carrier under a license from the FCC
consisting of a combination of improvements and equipment
including (i) one or more antennas, (ii) a supporting
structure and the hardware by which antennas are
attached; (iii) equipment housing; and (iv) ancillary
equipment such as signal transmission cables and
miscellaneous hardware;
(9) "FAA" means the Federal Aviation Administration
of the United States Department of Transportation;
(10) "FCC" means the Federal Communications
Commission;
(11) "antenna" means an antenna device by which
radio signals are transmitted, received, or both;
(12) "supporting structure" means a structure,
whether an antenna tower or another type of structure,
that supports one or more antennas as part of a facility;
(13) "qualifying structure" means a supporting
structure that is (i) an existing structure, if the
height of the facility, including the structure, is not
more than 15 feet higher than the structure just before
the facility is installed, or (ii) a substantially
similar, substantially same-location replacement of an
existing structure, if the height of the facility,
including the replacement structure, is not more than 15
feet higher than the height of the existing structure
just before the facility is installed;
(14) "equipment housing" means a combination of one
or more equipment buildings or enclosures housing
equipment that operates in conjunction with the antennas
of a facility, and the equipment itself;
(15) "height" of a facility means the total height
of the facility's supporting structure and any antennas
that will extend above the top of the supporting
structure; however, if the supporting structure's
foundation extends more than 3 feet above the uppermost
ground level along the perimeter of the foundation, then
each full foot in excess of 3 feet shall be counted as an
additional foot of facility height. The height of a
facility's supporting structure is to be measured from
the highest point of the supporting structure's
foundation;
(16) "facility lot" means the zoning lot on which a
facility is or will be located;
(17) "principal residential building" has its
common meaning but shall not include any building under
the same ownership as the land of the facility lot.
"Principal residential building" shall not include any
structure that is not designed for human habitation;
(18) "horizontal separation distance" means the
distance measured from the center of the base of the
facility's supporting structure to the point where the
ground meets a vertical wall of a principal residential
building; and
(19) "lot line set back distance" means the
distance measured from the center of the base of the
facility's supporting structure to the nearest point on
the common lot line between the facility lot and the
nearest residentially zoned lot. If there is no common
lot line, the measurement shall be made to the nearest
point on the lot line of the nearest residentially zoned
lot without deducting the width of any intervening right
of way.
(d) In choosing a location for a facility, a
telecommunications carrier shall consider the following:
(1) A non-residentially zoned lot is the most
desirable location.
(2) A residentially zoned lot that is not used for
residential purposes is the second most desirable
location.
(3) A residentially zoned lot that is 2 acres or
more in size and is used for residential purposes is the
third most desirable location.
(4) A residentially zoned lot that is less than 2
acres in size and is used for residential purposes is the
least desirable location.
The size of a lot shall be the lot's gross area in square
feet without deduction of any unbuildable or unusable land,
any roadway, or any other easement.
(e) In designing a facility, a telecommunications
carrier shall consider the following guidelines:
(1) No building or tower that is part of a facility
should encroach onto any recorded easement prohibiting
the encroachment unless the grantees of the easement have
given their approval.
(2) Lighting should be installed for security and
safety purposes only. Except with respect to lighting
required by the FCC or FAA, all lighting should be
shielded so that no glare extends substantially beyond
the boundaries of a facility.
(3) No facility should encroach onto an existing
septic field.
(4) Any facility located in a special flood hazard
area or wetland should meet the legal requirements for
those lands.
(5) Existing trees more than 3 inches in diameter
should be preserved if reasonably feasible during
construction. If any tree more than 3 inches in diameter
is removed during construction a tree 3 inches or more in
diameter of the same or a similar species shall be
planted as a replacement if reasonably feasible. Tree
diameter shall be measured at a point 3 feet above ground
level.
(6) If any elevation of a facility faces an
existing, adjoining residential use within a residential
zoning district, low maintenance landscaping should be
provided on or near the facility lot to provide at least
partial screening of the facility. The quantity and type
of that landscaping should be in accordance with any
county landscaping regulations of general applicability,
except that paragraph (5) of this subsection (e) shall
control over any tree-related regulations imposing a
greater burden.
(7) Fencing should be installed around a facility.
The height and materials of the fencing should be in
accordance with any county fence regulations of general
applicability.
(8) Any building that is part of a facility located
adjacent to a residentially zoned lot should be designed
with exterior materials and colors that are reasonably
compatible with the residential character of the area.
(f) The following provisions shall apply to all
facilities established in any county jurisdiction area after
the effective date of the amendatory Act of 1997:
(1) Except as provided in this Section, no yard or
set back regulations shall apply to or be required for a
facility.
(2) A facility may be located on the same zoning
lot as one or more other structures or uses without
violating any ordinance or regulation that prohibits or
limits multiple structures, buildings, or uses on a
zoning lot.
(3) No minimum lot area, width, or depth shall be
required for a facility, and unless the facility is to be
manned on a regular, daily basis, no off-street parking
spaces shall be required for a facility. If the facility
is to be manned on a regular, daily basis, one off-street
parking space shall be provided for each employee
regularly at the facility. No loading facilities are
required.
(4) No portion of a facility's supporting structure
or equipment housing shall be less than 15 feet from the
front lot line of the facility lot or less than 10 feet
from any other lot line.
(5) No bulk regulations or lot coverage, building
coverage, or floor area ratio limitations shall be
applied to a facility or to any existing use or structure
coincident with the establishment of a facility. Except
as provided in this Section, no height limits or
restrictions shall apply to a facility.
(6) A county's review of a building permit
application for a facility shall be completed within 30
days. If a decision of the county board is required to
permit the establishment of a facility, the county's
review of the application shall be simultaneous with the
process leading to the county board's decision.
(7) The improvements and equipment comprising the
facility may be wholly or partly freestanding or wholly
or partly attached to, enclosed in, or installed in or on
a structure or structures.
(8) Any public hearing authorized under this
Section shall be conducted in a manner determined by the
county board. Notice of any such public hearing shall be
published at least 15 days before the hearing in a
newspaper of general circulation published in the county.
(9) Any decision regarding a facility by the county
board or a county agency or official shall be supported
by written findings of fact. The circuit court shall
have jurisdiction to review the reasonableness of any
adverse decision and the plaintiff shall bear the burden
of proof, but there shall be no presumption of the
validity of the decision.
(g) The following provisions shall apply to all
facilities established after the effective date of this
amendatory Act of 1997 in the county jurisdiction area of any
county with a population of less than 180,000:
(1) A facility is permitted if its supporting
structure is a qualifying structure or if both of the
following conditions are met:
(A) the height of the facility shall not
exceed 200 feet, except that if a facility is
located more than one and one-half miles from the
corporate limits of any municipality with a
population of 25,000 or more the height of the
facility shall not exceed 350 feet; and
(B) the horizontal separation distance to the
nearest principal residential building shall not be
less than the height of the supporting structure;
except that if the supporting structure exceeds 99
feet in height, the horizontal separation distance
to the nearest principal residential building shall
be at least 100 feet or 80% of the height of the
supporting structure, whichever is greater.
Compliance with this paragraph shall only be
evaluated as of the time that a building permit
application for the facility is submitted. If the
supporting structure is not an antenna tower this
paragraph is satisfied.
(2) Unless a facility is permitted under paragraph
(1) of this subsection (g), a facility can be established
only after the county board gives its approval following
consideration of the provisions of paragraph (3) of this
subsection (g). The county board may give its approval
after one public hearing on the proposal, but only by the
favorable vote of a majority of the members present at a
meeting held no later than 75 days after submission of a
complete application by the telecommunications carrier.
If the county board fails to act on the application
within 75 days after its submission, the application
shall be deemed to have been approved. No more than one
public hearing shall be required.
(3) For purposes of paragraph (2) of this
subsection (g), the following siting considerations, but
no other matter, shall be considered by the county board
or any other body conducting the public hearing:
(A) the criteria in subsection (d) of this
Section;
(B) whether a substantial adverse effect on
public safety will result from some aspect of the
facility's design or proposed construction, but only
if that aspect of design or construction is
modifiable by the applicant;
(C) the benefits to be derived by the users of
the services to be provided or enhanced by the
facility and whether public safety and emergency
response capabilities would benefit by the
establishment of the facility;
(D) the existing uses on adjacent and nearby
properties; and
(E) the extent to which the design of the
proposed facility reflects compliance with
subsection (e) of this Section.
(4) On judicial review of an adverse decision, the
issue shall be the reasonableness of the county board's
decision in light of the evidence presented on the siting
considerations and the well-reasoned recommendations of
any other body that conducts the public hearing.
(h) The following provisions shall apply to all
facilities established after the effective date of this
amendatory Act of 1997 in the county jurisdiction area of any
county with a population of 180,000 or more. A facility is
permitted in any zoning district subject to the following:
(1) A facility shall not be located on a lot under
paragraph (4) of subsection (d) unless a variation is
granted by the county board under paragraph (4) of this
subsection (h).
(2) Unless a height variation is granted by the
county board, the height of a facility shall not exceed
75 feet if the facility will be located in a residential
zoning district or 200 feet if the facility will be
located in a non-residential zoning district. However,
the height of a facility may exceed the height limit in
this paragraph, and no height variation shall be
required, if the supporting structure is a qualifying
structure.
(3) The improvements and equipment of the facility
shall be placed to comply with the requirements of this
paragraph at the time a building permit application for
the facility is submitted. If the supporting structure
is an antenna tower other than a qualifying structure
then (i) if the facility will be located in a residential
zoning district the lot line set back distance to the
nearest residentially zoned lot shall be at least 50% of
the height of the facility's supporting structure or (ii)
if the facility will be located in a non-residential
zoning district the horizontal separation distance to the
nearest principal residential building shall be at least
equal to the height of the facility's supporting
structure.
(4) The county board may grant variations for any
of the regulations, conditions, and restrictions of this
subsection (h), after one public hearing on the proposed
variations, by a favorable vote of a majority of the
members present at a meeting held no later than 75 days
after submission of an application by the
telecommunications carrier. If the county board fails to
act on the application within 75 days after submission,
the application shall be deemed to have been approved.
In its consideration of an application for variations,
the county board, and any other body conducting the
public hearing, shall consider the following, and no
other matters:
(A) whether, but for the granting of a
variation, the service that the telecommunications
carrier seeks to enhance or provide with the
proposed facility will be less available, impaired,
or diminished in quality, quantity, or scope of
coverage;
(B) whether the conditions upon which the
application for variations is based are unique in
some respect or, if not, whether the strict
application of the regulations would result in a
hardship on the telecommunications carrier;
(C) whether a substantial adverse effect on
public safety will result from some aspect of the
facility's design or proposed construction, but only
if that aspect of design or construction is
modifiable by the applicant;
(D) whether there are benefits to be derived
by the users of the services to be provided or
enhanced by the facility and whether public safety
and emergency response capabilities would benefit by
the establishment of the facility; and
(E) the extent to which the design of the
proposed facility reflects compliance with
subsection (e) of this Section.
No more than one public hearing shall be required.
(5) On judicial review of an adverse decision, the
issue shall be the reasonableness of the county board's
decision in light of the evidence presented and the
well-reasoned recommendations of any other body that
conducted the public hearing.
Section 10. The Township Code is amended by changing
Section 110-5 as follows:
(60 ILCS 1/110-5)
Sec. 110-5. Application of Article.
(a) This Article applies only in those townships in
which the electors of the township, at an annual or special
township meeting, authorize the township board to exercise
the powers conferred by this Article.
(b) This Article does not apply in any county in which a
county zoning ordinance or resolution is in effect. A county
zoning ordinance or resolution adopted after the adoption of
a township zoning ordinance or resolution under this Article
supersedes the township zoning ordinance or resolution.
(c) Regulations adopted under this Article do not apply
to any area that is governed by a municipal zoning ordinance.
(d) This Article does not apply to the facilities of a
telecommunications carrier defined in Section 5-12001.1 of
the Counties Code.
(Source: P.A. 82-783; 88-62.)
Section 15. The Illinois Municipal Code is amended by
changing Section 11-13-1 as follows:
(65 ILCS 5/11-13-1) (from Ch. 24, par. 11-13-1)
Sec. 11-13-1. To the end that adequate light, pure air,
and safety from fire and other dangers may be secured, that
the taxable value of land and buildings throughout the
municipality may be conserved, that congestion in the public
streets may be lessened or avoided, that the hazards to
persons and damage to property resulting from the
accumulation or runoff of storm or flood waters may be
lessened or avoided, and that the public health, safety,
comfort, morals, and welfare may otherwise be promoted, and
to insure and facilitate the preservation of sites, areas,
and structures of historical, architectural and aesthetic
importance; the corporate authorities in each municipality
have the following powers:
(1) To regulate and limit the height and bulk of
buildings hereafter to be erected; (2) to establish,
regulate and limit, subject to the provisions of Division
14 of this Article 11, the building or set-back lines on
or along any street, traffic-way, drive, parkway or storm
or floodwater runoff channel or basin; (3) to regulate
and limit the intensity of the use of lot areas, and to
regulate and determine the area of open spaces, within
and surrounding such buildings; (4) to classify, regulate
and restrict the location of trades and industries and
the location of buildings designed for specified
industrial, business, residential, and other uses; (5) to
divide the entire municipality into districts of such
number, shape, area, and of such different classes
(according to use of land and buildings, height and bulk
of buildings, intensity of the use of lot area, area of
open spaces, or other classification) as may be deemed
best suited to carry out the purposes of this Division
13; (6) to fix standards to which buildings or structures
therein shall conform; (7) to prohibit uses, buildings,
or structures incompatible with the character of such
districts; (8) to prevent additions to and alteration or
remodeling of existing buildings or structures in such a
way as to avoid the restrictions and limitations lawfully
imposed under this Division 13; (9) to classify, to
regulate and restrict the use of property on the basis of
family relationship, which family relationship may be
defined as one or more persons each related to the other
by blood, marriage or adoption and maintaining a common
household; and (10) to regulate or forbid any structure
or activity which may hinder access to solar energy
necessary for the proper functioning of a solar energy
system, as defined in Section 1.2 of The Comprehensive
Solar Energy Act of 1977.
The powers enumerated may be exercised within the
corporate limits or within contiguous territory not more than
one and one-half miles beyond the corporate limits and not
included within any municipality. However, if any
municipality adopts a plan pursuant to Division 12 of Article
11 which plan includes in its provisions a provision that the
plan applies to such contiguous territory not more than one
and one-half miles beyond the corporate limits and not
included in any municipality, then no other municipality
shall adopt a plan that shall apply to any territory included
within the territory provided in the plan first so adopted by
another municipality. No municipality shall exercise any
power set forth in this Division 13 outside the corporate
limits thereof, if the county in which such municipality is
situated has adopted "An Act in relation to county zoning",
approved June 12, 1935, as amended. No municipality may
exercise any power set forth in this Division 13 outside the
corporate limits of the municipality with respect to a
facility of a telecommunications carrier defined in Section
5-12001.1 of the Counties Code. If a municipality adopts a
zoning plan covering an area outside its corporate limits,
the plan adopted shall be reasonable with respect to the area
outside the corporate limits so that future development will
not be hindered or impaired; it is reasonable for a
municipality to regulate or prohibit the extraction of sand,
gravel, or limestone even when those activities are related
to an agricultural purpose. If all or any part of the area
outside the corporate limits of a municipality which has been
zoned in accordance with the provisions of this Division 13
is annexed to another municipality or municipalities, the
annexing unit shall thereafter exercise all zoning powers and
regulations over the annexed area.
In all ordinances passed under the authority of this
Division 13, due allowance shall be made for existing
conditions, the conservation of property values, the
direction of building development to the best advantage of
the entire municipality and the uses to which the property is
devoted at the time of the enactment of such an ordinance.
The powers conferred by this Division 13 shall not be
exercised so as to deprive the owner of any existing property
of its use or maintenance for the purpose to which it is then
lawfully devoted, but provisions may be made for the gradual
elimination of uses, buildings and structures which are
incompatible with the character of the districts in which
they are made or located, including, without being limited
thereto, provisions (a) for the elimination of such uses of
unimproved lands or lot areas when the existing rights of the
persons in possession thereof are terminated or when the uses
to which they are devoted are discontinued; (b) for the
elimination of uses to which such buildings and structures
are devoted, if they are adaptable for permitted uses; and
(c) for the elimination of such buildings and structures when
they are destroyed or damaged in major part, or when they
have reached the age fixed by the corporate authorities of
the municipality as the normal useful life of such buildings
or structures.
This amendatory Act of 1971 does not apply to any
municipality which is a home rule unit.
(Source: P.A. 86-1025.)
Section 20. The Airport Zoning Act is amended by adding
Section 10.5 as follows:
(620 ILCS 25/10.5 new)
Sec. 10.5. Effect of other laws. None of the following
shall be construed to limit the authority created by this
Act:
(A) Section 5-12001 of the Counties Code;
(B) Section 5-12001.1 of the Counties Code;
(C) Section 110-5 of the Township Code; and
(D) Section 11-13-1 of the Illinois Municipal Code.