The Illinois Appellate Court has recently clarified a longstanding requirement for special use permit hearings. Following the 2002 decision in People ex rel. Klaeren v. Village of Lisle, many municipalities assumed that all special use permit hearings required an opportunity for concerned parties to cross-examine adverse witnesses. 202 Ill. 2d 164 (2002). However, in the recent case Clark v. City of Galena, the Illinois Appellate Court has moved in a less restrictive direction. 2025 IL App. (4th) 241245. The courts are now more concerned with ensuring that parties are afforded a sufficient opportunity to voice their concerns, and are less focused on the exact mechanism that municipalities use to do so.

The main question addressed in this case was: What process is due to a concerned neighbor wishing to challenge a special use exception? The Court followed the balancing test the Supreme Court laid out in Mathews v. Eldridge and looked at:

1. The private interest that will be affected;
2. The risk that the procedures used will result in an erroneous deprivation of the private interest, and the probable value, if any, of additional or substitute procedural safeguards;
3. The government’s interest, including any additional burdens that additional or substitute procedural requirements would entail.
   See 424 U.S. 319, 335 (1976).

The crux of the Clark decision rested in the second element: the adequacy of the procedures used. The Plaintiff argued, and the district court agreed, that under the Klaeren case, concerned citizens had a right to cross-examine adverse witnesses seeking a zoning special use permit. However, the appellate court determined that a “mechanical” application of Klaeren was inappropriate and found that due process demanded a comprehensive evaluation of the procedures used by the City. Because the Plaintiff was given ample opportunities to voice her concerns, and those concerns were in turn addressed by the Developers, the Court ruled that requiring a cross-examination would have been an extraneous exercise, and that no additional process was due outside of the City’s thorough procedures.

The Clark decision instructs courts to respect the procedures of local government while still ensuring that concerned citizens have an opportunity to be heard. Sometimes a municipality’s procedures are so restrictive that the courts must intervene to ensure that concerned parties are adequately accounted for. This was the case in Klaeren, where the parties’ comments were severely limited by the city’s rules. However, the Clark decision indicates that constitutional due process concerns will always turn on whether or not a party was adequately heard. As such, municipalities should take an inclusive approach to these types of hearings, and allow parties a full opportunity to voice their concerns. Such an effort upfront will help to ensure that any challenges on the back end of the process are resolved in favor of the City.

For more information about this article, please contact Alexander T. Myers at amyers@tresslerllp.com.

Alexander (Alex) T. Myers serves as an associate in Tressler’s Local Government and Litigation Practice Groups. His practice is primarily focused on civil rights litigation, tort litigation, employment litigation and counseling, matters arising from section 1983, and police misconduct. Alex’s legal background as a Deputy Attorney General for the Office of the Indiana Attorney General (OAG) encompassed numerous litigation topics across both state and federal courts. Click here to read Alexander’s full attorney bio.