Passalino v. City of Zion

Docket No. 107429.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
JOSEPH PASSALINO et al., Appellees, v. THE CITY OF ZION,
Appellant.
Opinion filed December 17, 2009.–Modified upon denial of
rehearing April 22, 2010.
CHIEF JUSTICE FITZGERALD delivered the judgment of the
court, with opinion.
Justices Thomas, Kilbride, Garman, and Karmeier concurred in the
judgment and opinion.
Justice Freeman dissented, with opinion, joined by Justice Burke.
Justice Freeman also dissented upon denial of rehearing, with
opinion, joined by Justices Garman and Burke.
OPINION
Joseph Passalino and his wife, Marlene (plaintiffs), filed a
declaratory judgment complaint in the circuit court of Lake County
against the City of Zion. Plaintiffs sought the invalidation of a zoning
map amendment that prohibited the use of their land for the
construction of multifamily buildings. Specifically, they claimed that
the City’s notification of public hearings by use of newspaper
publication pursuant to section 11–13–2 of the Illinois Municipal
Code (65 ILCS 5/11–13–2 (West 1996)) was not sufficient notice to
satisfy the due process requirements of the federal constitution. In
granting plaintiffs’ motion for summary judgment, the circuit court of
Lake County found section 11–13–2 of the Municipal Code
unconstitutional as applied to plaintiffs and also declared the
amendment void as to plaintiffs’ parcel. The City appealed. 210 Ill. 2d
R. 302(a). For the following reasons, we affirm the judgment of the
circuit court.
BACKGROUND
This matter arises out of the zoning of a certain parcel of vacant
real property located within the City. In 1971, the property’s previous
owner negotiated with the City to prepare the property for future
development of eight single-family homes and 142 multiple-family
units. On December 7, 1971, the Zion city council passed ordinance
No. 71–O–61, which assigned zoning classifications to the property
of “R8,” for the development of single-family homes, and “R2,” for
the development of multiple-family dwellings.
In 1972, plaintiffs, as beneficiaries of a land trust, acquired the
property. According to the complaint, when the subject property was
purchased, extra monies were paid to the previous owner, which were
then immediately paid to the City for the extension of Zion’s sanitary
sewer main and its connection to all of the proposed 142 multifamily
units. This consisted of two payments that together totaled $45,000.
During 1972 and 1973, Joseph Passalino constructed the 8 single-
family homes and 48 of the planned 142 multifamily units. By 1978,
Passalino had sold all of the developed property.
In March 1996, the City decided to adopt a new zoning ordinance
for the entire municipality. The City proceeded consistently with the
provisions in section 11–13–2 the Illinois Municipal Code (65 ILCS
5/11–13–2 (West 1996)). This section provides:
“The corporate authorities in each municipality which
desires to exercise the powers conferred by this Division 13,
or who have exercised such power and desire to adopt a new
ordinance, shall provide for a zoning commission with the
duty to recommend the boundaries of districts and appropriate
regulations to be enforced therein. The commission shall be
appointed by the mayor or president, subject to confirmation
by the corporate authorities. The commission shall prepare a
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tentative report and a proposed zoning ordinance for the entire
municipality. After the preparation of such a tentative report
and ordinance, the commission shall hold a hearing thereon
and shall afford persons interested an opportunity to be heard.
Notice of the hearing shall be published at least once, not
more than 30 nor less than 15 days before the hearing, in one
or more newspapers published in the municipality, or, if no
newspaper is published therein, then in one or more
newspapers published in the county in which the municipality
is located and having a general circulation within the
municipality. The notice shall state the time and place of the
hearing and the place where copies of the proposed ordinance
will be accessible for examination by interested persons. The
hearing may be adjourned from time to time.
Within 30 days after the final adjournment of the hearing
the commission shall make a final report and submit a
proposed ordinance for the entire municipality to the
corporate authorities. The corporate authorities may enact the
ordinance with or without change, or may refer it back to the
commission for further consideration. The zoning commission
shall cease to exist upon the adoption of a zoning ordinance
for the entire municipality.” 65 ILCS 5/11–13–2 (West 1996).
Pursuant to the Municipal Code, an appointed planning commission
reviewed the zoning map for the City and prepared a tentative report
and a proposed ordinance. This report was known as the “Zion
Comprehensive 2010 Plan.” The commission provided notice of
hearing in the March 19, 1996, edition of the Bargaineer, a “free
community newspaper” which is self-described as providing “many
local deals and a smattering of general interest news.” On page 10 of
the paper, underneath an advertisement for Oneida Casino Bingo, the
four-inch by four-inch notice stated:
“PUBLIC HEARING
City of Zion zoning
Comprehensive Zoning Amendment
Zion Zoning Commission will hold two public hearings:
Wednesday, April 3, 1996 at 7:00 P.M.
and
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Friday, April 12, 1996 at 7:00 P.M.
Both Public Hearings will be held in the Zion
City Council Chambers at 2828 Sheridan Road
A copy of the recently adopted 2010 Comprehensive Plan
update and proposed comprehensive zoning amendment will
be available for review at City Hall Monday through Friday
between the hours of 8:00 a.m. and 5:00 p.m.”
An identical second notice was published on March 14, 1996, in the
Zion-Benton News on page 27 underneath a scuba diving
advertisement.
The planning commission held two meetings to discuss the
ordinance. According to the minutes of both meetings, no member of
the public commented or objected. The commission recommended to
the mayor and the city council that the zoning map amendment be
adopted as presented in the tentative report. In June 1996, the City
adopted ordinance No. 96–O–41, entitled “Amending Chapter 102
Zoning of the Municipal Code of the City of Zion, Illinois, of 1992
Comprehensive Rezoning.” Eighty-five parcels in the City were
affected, including the subject property. The property was rezoned
from R2 multifamily to R8 single family.
In 2001, Joseph Passalino sought to develop his remaining
property with multifamily units. To his surprise, his plans for
multifamily dwellings were rebuffed by the City because of the zoning
change. According to his affidavit found in the record, Passalino never
received any notice via United States mail or by any other delivery
method. Lake County’s property tax records for 1995 identify the
legal owner as the land trust and also contain a mailing address. Also
according to the affidavit, plaintiffs have regularly received assessment
notices and real property tax bills for the property in each year since
1973. They have been residents of Lake Forest since 1963.
In 2007, plaintiffs filed the current second-amended complaint for
declaratory relief in the circuit court of Lake County. The plaintiffs
requested, inter alia, that the court declare the subject property legally
zoned and classified within the R2 multifamily district of the Zion
zoning ordinance and that the court declare Zion ordinance
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No. 96–O–41 void.1 After defendants filed an answer, the plaintiffs
filed a motion for summary judgment. Plaintiffs argued that due
process required actual notice to them of the proposed zoning map
amendment. Alternatively, plaintiffs argued that even if the circuit
court found that published notice was sufficient, the notice in this case
was defective.
The circuit court granted plaintiffs’ motion for summary judgment.
The circuit court found that the notice provision of section 11–13–2
(65 ILCS 5/11–13–2 (West 1996)) is unconstitutional as applied to
the facts of this case. The court held that plaintiffs were entitled to
receive actual notice from the City in 1996 of the proposed zoning
map amendment that would rezone his property or the published
notice should have contained an itemization or identification of
plaintiffs’ affected property. It also found that plaintiffs were
specifically deprived of their due process rights in the 1996 rezoning
of his property. Next, it held the rezoning of plaintiffs’ property from
R2 to R8 is void. The trial court entered summary judgment and
declared that plaintiffs’ real property as described in the second-
amended complaint as properly zoned in the R2 district in Zion,
Illinois. The City appealed directly to this court. 210 Ill. 2d R. 302(a).
ANALYSIS
Summary judgment is appropriate where the pleadings,
depositions and admissions together with any affidavits show there is
no genuine issue of material fact and that movant is entitled to
judgment as a matter of law. 735 ILCS 5/2–1005(c) (West 2006). All
cases involving summary judgment are reviewed de novo. Poindexter
v. State of Illinois, 229 Ill. 2d 194, 210 (2008). At issue here is the
legal question of the process due the plaintiffs. Procedural due process
is founded upon the notion that prior to a deprivation of life, liberty or
property, a party is entitled to “ ‘notice and opportunity for [a]
hearing appropriate to the nature of the case.’ ” Jones v. Flowers, 547
1
The second amended complaint made no claim of a “vested right” in the
continuation of the prior ordinance. This complaint also did not challenge
either the facial validity of the Municipal Code or the validity of the 1996
ordinance, facial or as-applied.
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U.S. 220, 223, 164 L. Ed. 2d 415, 423, 126 S. Ct. 1708, 1712 (2006),
quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S.
306, 313, 94 L. Ed. 865, 873, 70 S. Ct. 652, 656-57 (1950). In their
briefs, the parties do not dispute that, due to the actions of the City,
the plaintiffs were persons interested in the hearings such that they
were entitled to notice under the Municipal Code. See 65 ILCS
5/11–13–2 (West 1996). Plaintiffs’ entitlement to procedural due
process arises out of plaintiffs’ property interest, which is affected by
the zoning map amendment. See Chicago Title & Trust Co. v. Village
of Palatine, 22 Ill. App. 2d 264, 269 (1959) (“persons interested [in
zoning changes must be] afforded an opportunity to be heard”);
American Oil Corp. v. City of Chicago, 29 Ill. App. 3d 988, 991
(1975) (finding property owner was denied procedural due process
because of city’s failure to notify of downzoning that directly affected
plaintiff’s property); cf. Nasierowski Brothers Investment Co. v. City
of Sterling Heights, 949 F.2d 890 (6th Cir. 1991) (finding procedural
due process claim arose where published notice of general zoning
ordinance change lacked any notice to property owner that his
property would be downzoned at city council meeting); Harris v.
County of Riverside, 904 F.2d 497 (9th Cir. 1990) (procedural due
process claim arose when, without notice to plaintiff, county passed
general zoning ordinance that rezoned plaintiff’s property); but see
Bohan v. Village of Riverside, 9 Ill. 2d 561, 566 (1956) (owners of
property adjacent to rezoned property were not denied procedural due
process because of lack of personal notice); Wells v. Village of
Libertyville, 153 Ill. App. 3d 361, 368 (1987) (same). Accordingly,
due process requires that plaintiffs be apprised of the pendency of the
zoning map amendment and afforded the opportunity to present their
objections. Jones v. Flowers, 547 U.S. at 226, 164 L. Ed. 2d at 425,
126 S. Ct. at 1713-14, citing Mullane, 339 U.S. at 314, 94 L. Ed. at
873, 70 S. Ct. at 657. Therefore, the only question which the parties
have presented to this court is whether the City’s published notice
afforded the plaintiffs an adequate opportunity to be heard.
Plaintiffs argue that their due process rights were violated because
they did not have actual notice of the meeting. Plaintiffs cite the
landmark case of Mullane v. Central Hanover Bank & Trust Co., 339
U.S. 306, 94 L. Ed. 865, 70 S. Ct. 652 (1950), and its progeny. The
City asserts that its notice by publication in the Bargaineer and the
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Zion-Benton News was adequate to satisfy due process, because it
strictly complied with the minimum requirements pertaining to
rezoning of an entire municipality, as provided in section 11–13–2 of
the Municipal Code (65 ILCS 5/11–13–2 (West 1996)). While we join
the City in deferring to the language of our legislature, our deference
does not extend beyond the point at which the language of the statute
is compatible with the United States Constitution. In accordance with
familiar constitutional principles, we conclude that the statute is
unconstitutional as applied to the facts and the type of zoning
amendment at issue in this case.
We find this case to be a textbook application the United States
Supreme Court’s constitutional analysis. In Mullane, the only notice
given to certain beneficiaries of a trust was by publication in a local
newspaper in strict compliance with the minimum requirements of the
New York Banking Law. Mullane, 339 U.S. at 309, 94 L. Ed. at 871,
70 S. Ct. at 655. Appellants objected to notice and argued that the
statutory provisions for notice to beneficiaries were inadequate to
afford due process under the fourteenth amendment. In deciding for
appellants, the United States Supreme Court’s decision relied on the
following classic maxim of law:
“An elementary and fundamental requirement of due
process in any proceeding which is to be accorded finality is
notice reasonably calculated, under all the circumstances, to
apprise interested parties of the pendency of the action and
afford them an opportunity to present their objections. ***
*** [W]hen notice is a person’s due, process which is a
mere gesture is not due process.” Mullane, 339 U.S. at 314-
15, 94 L. Ed. at 873-74, 70 S. Ct. at 657.
Accordingly, “[t]he means employed must be such as one desirous of
actually informing the absentee might reasonably adopt to accomplish
it.” Mullane, 339 U.S. at 315, 94 L. Ed. at 874, 70 S. Ct. at 657. The
lengths any party must go to achieve proper notice need not be
unreasonable. Underlying any assessment of the “practicalities and
peculiarities” of any case requires balancing the “interest of the State”
against the “individual interest sought to be protected.” Mullane, 339
U.S. at 314, 94 L. Ed. at 873, 70 S. Ct. at 657.
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More specifically, the Mullane Court held that notice by
publication is not sufficient with respect to an individual whose name
and address are known and easily ascertainable. Mullane, 339 U.S. at
320, 94 L. Ed. at 876, 70 S. Ct. at 660. Hence, notice by publication
was inadequate “not because in fact it fails to reach everyone, but
because *** it is not reasonably calculated to reach those who could
easily be informed by other means at hand.” Mullane, 339 U.S. at 319,
94 L. Ed. at 876, 70 S. Ct. at 660. The Court observed that
“ ‘[c]hance alone’ ” brings a person’s attention to “ ‘an advertisement
in small type inserted in the back pages of a newspaper,’ ” and that
notice by publication is adequate only where “ ‘it is not reasonably
possible or practicable to give more adequate warning.’ ” Jones v.
Flowers, 547 U.S. at 237, 164 L. Ed. 2d at 433, 126 S. Ct. at 1720,
quoting Mullane, 339 U.S. at 315, 317, 94 L. Ed. at 874, 875, 70 S.
Ct. at 658, 658.
Here, under all of the circumstances, we do not believe that
service was reasonably calculated to inform the plaintiffs of the
pendency of the meeting scheduled to address the proposed zoning
map amendment. The City has never rebutted the general assertion
that the address of the trustee of the land trust could have been easily
ascertained and that the land trustee could have been easily informed,
enabling the trustee to pass the information along to the plaintiffs.
Indeed, tax assessments had been sent to the land trustee and
ultimately received by the plaintiffs, as beneficiaries of the land trust,
since 1973. Instead of taking advantage of tax records, however, the
City provided notice only with four-inch by four-inch notices
published at page 10 of the Bargaineer and page 27 of the Zion-
Benton News. As our appellate court has stated, “notice by
publication is not enough in cases where a person’s legally protected
interests are directly affected by the legal proceedings and the person’s
name and address are known or easily discerned.” See Wells, 153 Ill.
App. 3d at 367, citing American Oil, 29 Ill. App. 3d at 991 (citing
Schroeder v. City of New York, 371 U.S. 208, 9 L. Ed. 2d 255, 83 S.
Ct. 279 (1962), and Mullane, 339 U.S. 306, 94 L. Ed. 865, 70 S. Ct.
652).
Among the reasonable actions that the City could have taken was
to review the records of the Lake County collector and then mail
notice to the taxpayers of record of the 85 properties affected by the
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zoning map amendment. As defense counsel agreed at oral argument,
this would have cost approximately $30. As such, in this instance it is
not unreasonable to mail notice to the taxpayers of record of the
affected parcels, and it would not “place impossible or impractical
obstacles” (Mullane, 339 U.S. at 314, 94 L. Ed. at 873, 70 S. Ct. at
657) on the City’s zoning efforts. Indeed, the City itself imposes a
similar burden on certain objectors to zoning and also those seeking
local siting approval. Zion City Ordinance No. 85–14–2.
Similar to the argument advanced by the trust in Mullane, the
City’s primary argument is that it strictly complied with the minimum
requirements of the Municipal Code. Like the Court in Mullane,
however, we hold that minimum compliance with this law is still
incompatible with constitutional requirements under these
circumstances. Here, publication notice pursuant to section 11–13–2
(65 ILCS 5/11–13–2 (West 1996)) was not sufficient to satisfy due
process requirements as applied to the facts of this zoning map
amendment case.
The City’s reliance on Williams v. Village of Schiller Park, 9 Ill.
2d 596 (1956), is misplaced. In Williams, we stated that where there
is a reasonable ground for difference of opinion as to the basis of a
zoning classification, the legislative judgment expressed in the
ordinance will be sustained. Williams, 9 Ill. 2d at 598. We therefore
held that the single-family residential character of the property in that
case would not be upset because of some commercial use near or even
adjoining such property. As to the procedural validity of the Schiller
Park zoning ordinance, we held that although the area was originally
zoned residential by a village, by a general ordinance imposed without
notice and hearing required by statute, the area was subsequently
rezoned with a new ordinance with a proper notice. Williams, 9 Ill. 2d
at 598-99. Here, unlike Williams, there is no challenge to the
reasonableness of the zoning classification and there has been no
subsequent ordinance passed with proper notice and hearing.
Therefore, we find Williams to be inapposite.
Thus, weighing the interests of the City and the plaintiffs, it is the
judgment of this court that the means employed by the City were not
reasonably calculated to inform the plaintiffs such that they received
an opportunity to object at the meeting. On balance, plaintiffs’
ownership interest entitled them to a notice with more likelihood of
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success than “chance alone,” particularly where there is little burden
upon the City. Because the notification procedures used by the City
in this case were not “reasonably calculated, under all the
circumstances, to apprise [these] interested parties of the pendency of
the action and afford them an opportunity to present their objections”
(Mullane, 339 U.S. at 314, 94 L. Ed. 2d at 873, 70 S. Ct. at 657),
their procedural due process rights deriving from the fifth and
fourteenth amendments to the United States Constitution were
violated. Thus, section 11–13–2 of the Municipal Code (65 ILCS
5/11–13–2 (West 1996)) is unconstitutional as applied to the facts of
this case.
To clarify for the bench and bar, our holding does not require
actual notice to these plaintiffs, as beneficiaries of an Illinois land
trust, but only efforts “such as one desirous of actually informing the
absentee might reasonably adopt to accomplish it.” Mullane, 339 U.S.
at 315, 94 L. Ed. 2d at 874, 70 S. Ct. at 657. Here, reasonable efforts
may have included sending notice to the land trustee as the taxpayer
of record, who then could have forwarded the notice to the plaintiffs.
Under the instant circumstances, a more extensive search to unearth
the identities and addresses of the beneficiaries of the land trust so the
City could directly provide them with actual notice is not
constitutionally required. This court’s holding also does not affect the
continuing validity of the use of publication notice under section
11–13–2 of the Municipal Code (65 ILCS 5/11–13–1 through
11–13–20 (West 1996)). Rather, we only hold that, in this zoning map
amendment case, notice was insufficient such that ordinance No.
96–O–71 was invalid in its application to plaintiff’s property and that
the property can currently be lawfully used in accordance with the
previous zoning ordinance.
CONCLUSION
For all the foregoing reasons, the judgment of the circuit court of
Lake County is affirmed.
Affirmed.
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JUSTICE FREEMAN, dissenting:
In holding that plaintiffs were entitled to actual notice from the
City of Zion (City), today’s opinion raises more questions than it
resolves. First, and perhaps foremost, what is the nature of the
property interests that drive the court’s analysis? Relatedly, given this
court’s precedent regarding zoning, why, on balance, does notice by
publication fail to sufficiently protect plaintiffs’ interests in this case?
And what exactly is the rule of today’s decision? Because the majority
opinion does not adequately address these general concerns, I cannot
join in it and must respectfully dissent.
Nature of the Interests Involved
It is difficult to ascertain the exact nature of plaintiffs’ property
interests without a detailed recitation of the facts, many of which are
not included in the majority’s decision. The dispute in this case arises
from the zoning classification of certain vacant parcels of property
located in the City. In December 1971, the City passed an ordinance
which rezoned these parcels as multifamily residential. This rezoning
was done at the behest of the owner at that time, who had requested
and received from the City approval to construct 142 multiple family
units on the property. Construction, however, was never undertaken.
In 1972, the owner began discussions with plaintiffs about the possible
sale of the property. At that time, plaintiffs believed that the only way
the subject property could be developed was to have a sanitary sewer
line extended to it. Plaintiffs also knew that the City had plans to
extend its sanitary sewer main to serve the subject property. Plaintiffs
paid $35,000 to the previous owner of the property in order to have
the City provide for the extension of the City’s sanitary sewer main to
the property and to have all 142 multifamily units connected to it. In
November 1972, plaintiffs paid, again through the previous owner,
$10,000 to the City as part of an agreement for sanitary sewer
connections for all of the approved 142 multifamily units. On the same
date, plaintiffs acquired the property as beneficiaries of a land trust.2
2
According to documents submitted in support of plaintiffs’ motion for
summary judgment, at the time of the sale, the Zion State Bank and Trust
Company served as trustee for the land trust, which was known as Trust
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Shortly thereafter, the City extended the sanitary sewer so as to be
accessible for the development of the subject property. From 1973
through 1974, plaintiffs constructed 8 single-family homes and the
first 48 units of multifamily residences on a portion of the subject
property. By 1978, plaintiffs had sold all the developed property. To
date, plaintiffs’ remaining property that had been approved for
multifamily residences remains undeveloped.
In 1996, the City undertook a comprehensive rezoning of all the
property in the City, including that held by plaintiffs as land trust
beneficiaries. After public hearings, the city council passed an
ordinance that amended the official zoning map. That amendment
affected some 85 parcels throughout the City, including the subject
property, by rezoning them from a multifamily residential classification
to a single-family residential classification.
These facts lead to several observations that are important to the
proper resolution of this case. First, plaintiffs are the beneficiaries of
a land trust. The Illinois land trust is “a unique creation of the Illinois
bar,” which over the years has “served as a useful vehicle in real estate
transactions for maintaining secrecy of ownership and allowing ease
of transfer.” People v. Chicago Title & Trust Co., 75 Ill. 2d 479, 487
(1979). Generally, once property is placed in a land trust, the owner’s
interest in the real property changes to a personal property interest in
the trust. Chicago Title & Trust, 75 Ill. 2d at 488. As such, legal and
equitable title of the property rests with the trustee, including the right
to transfer and encumber the property. Chicago Title & Trust, 75 Ill.
2d at 488. A beneficiary does not appear as an owner of record, and
the trustee must keep beneficiary names confidential. Real Property
Services Illinois, Land Trusts §31:72 (1989). Plaintiffs, as
beneficiaries, retain other ownership rights such as the right of
possession and the right of the use and enjoyment of the property. The
trustee will forward bills for taxes or assessments to the beneficiary
(Real Property Services Illinois, Land Trusts §31:58 (1989)), who is
responsible for their payment (Chicago Title & Trust, 75 Ill. 2d at
493). The majority’s statement that plaintiffs’ name and address could
have been easily ascertained (slip op. at 8) is therefore untrue–a title
Number 498.
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search would only disclose that the land was in a trust; such a search
would not identify the plaintiffs as beneficiaries. Similarly, a tax
records search would disclose the name and address of the trustee.
Those documents would not identify the plaintiffs as beneficiaries.3
Certainly, any zoning changes to the property would affect the
right to the use of the property (how and for what use the property
can be improved). City of Loves Park v. Woodward Governor Co., 14
Ill. 2d 623, 625 (1958). Beneficiaries of a land trust would be
“persons interested” in the hearings (65 ILCS 5/11–13–2 (West
1996)) and therefore entitled to notice under the Municipal Code. The
question, however, is what type of notice is required.
What is considered reasonable notice depends on the outcome of
the balance between the state’s interest and the individual interest
sought to be protected by the fourteenth amendment. Mullane v.
Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 94 L. Ed.
865, 873, 70 S. Ct. 652, 657 (1950). Generally, a landowner’s right
to use of the property does not include the right to the continuation of
an existing zoning classification. Pioneer Trust & Savings Bank v.
County of Cook, 71 Ill. 2d 510, 517 (1978). An exception to the rule
will be made “ ‘[w]here there has been a substantial change of
position, expenditures or incurrence of obligations made in good faith
by an innocent party under a building permit or in reliance upon the
probability of its issuance.’ ” 1350 Lake Shore Associates v. Healey,
223 Ill. 2d 607, 615 (2006), quoting People ex rel. Skokie Town
House Builders, Inc. v. Village of Morton Grove, 16 Ill. 2d 183, 191
(1959), citing Fifteen Fifty North State Building Corp. v. City of
Chicago, 15 Ill. 2d 408, 416 (1958). In such cases, the landowner has
a vested right in the former zoning classification and will be allowed
to complete the construction and use the property for the purpose
originally authorized irrespective of the subsequent reclassification.
Since plaintiffs’ initial development of multiple-family residences
in 1974, the subject property has remained unimproved. Plaintiffs have
3
The tax documents included in the record reveal this to be the case.
Plaintiffs’ names and address do not appear on those records. The documents
indicate the name of the trustee, Chicago Title and Trust Company, and the
company’s Chicago address.
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not alleged that they have received building permits or had even
applied for them such that the vested-rights exception to the general
rule would have application to this case. I do not understand what it
is about plaintiffs’ interest in the property that would entitle them to
actual notice of the pending zoning changes. Plaintiffs’ right to the use
of the property does not entitle them to a continuation of a particular
zoning classification, in this case the multifamily residential
classification. This fact is critical in determining whether
constitutionally sufficient notice was given since the answer depends
on a balancing of the State’s interest and the individual interests
sought to be protected.
The majority summarily concludes that plaintiffs’ entitlement to
due process “arises out of plaintiffs’ property interest which is affected
by the zoning change” (slip op. at 6), but this conclusion does not rest
on any analysis of the nature of the interest plaintiffs seek to protect
in this case. The majority cites a number of cases for this proposition,
but even a cursory reading of each provides little help in addressing
the question at hand. For example, Chicago Title & Trust Co. v.
Village of Palatine, 22 Ill. App. 2d 264 (1959), stands for the
unremarkable proposition that the public must be given notice of
proposed comprehensive zoning plans and that persons interested be
given the opportunity to be heard. The public was given notice in this
case and interested persons were given the opportunity to be heard.
Both Nasierowski Brothers Investment Co. v. City of Sterling
Heights, 949 F.2d 890 (6th Cir. 1991), and Harris v. County of
Riverside, 904 F.2d 497 (9th Cir. 1990), simply hold that once
published notice is given of a zoning change, new notice must be
given if the property is rezoned to a different classification than that
published in the notice, a situation that did not occur in this case.
Only one case, American Oil Corp. v. City of Chicago, 29 Ill.
App. 3d 988 (1975), seems helpful. There, the appellate court held
that, because an owner of property had “legally protected interests,”
actual notice of a proposed zoning change from commercial to
residential was constitutionally required. But this was because the City
had, prior to the zoning change, issued to the owner building permits
for buildings to be erected on the property. American Oil, 29 Ill. App.
3d at 990. According to the court, the zoning change rendered the
resulting gas station a nonconforming use of the property and had
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diminished the value of the property. American Oil, 29 Ill. App. 3d at
990-91. American Oil simply reinforces the notion that courts will
protect the interests of property owners in zoning disputes when
vested rights in a particular classification are at play. I take no issue
with that. As explained above, however, plaintiffs have not asserted
any vested right in the prior classification, a fact which the majority
itself notes in its opinion. Slip op. at 4 n.1.
Application of Mullane
The majority asserts that the outcome in this case is a “textbook
application” of the analysis in Mullane v. Central Hanover Bank &
Trust Co., 339 U.S. 306, 94 L. Ed. 865, 70 S. Ct. 652 (1950). See slip
op. at 7. In Mullane, the United States Supreme Court held that a
state must provide “notice reasonably calculated, under all the
circumstances, to apprise interested parties of the pendency of the
action and afford them opportunity to present their objections.”
Mullane, 339 U.S. at 314, 94 L. Ed. at 873, 70 S. Ct. at 657. The
proceeding which triggered the requirement for notice was a judicial
action to settle the accounts of a common trust fund conclusively as
to all members. The Court held that the known beneficiaries of the
trust were entitled to actual notice of the pending proceeding as
opposed to notice by publication. The Court emphasized that notice
will pass due process muster when “the practicalities and peculiarities
of the case *** are reasonably met.” Mullane, 339 U.S. at 314-15, 94
L. Ed. at 873, 70 S. Ct. at 657. The focus is on the “reasonableness”
of the means chosen by the state. Mullane, 339 U.S. at 315, 94 L. Ed.
at 874, 70 S. Ct. at 657. Reasonableness is measured on the outcome
of the balance between the “interest of the State” and the “individual
interest sought to be protected by the Fourteenth Amendment.”
Mullane, 339 U.S. at 314, 94 L. Ed. at 873, 70 S. Ct. at 657.
I fail to see how Mullane dictates that actual notice is required in
this case. The City’s interest in this case is a strong one. This court has
recognized that the purpose of zoning, as expressed in the Municipal
Code, is to limit the rights of citizens to use their property in order to
promote and protect the public health, safety, comfort, morals and
welfare of the people. See Napleton v. Village of Hinsdale, 229 Ill. 2d
296 (2008). It is against these vital interests that we must weigh the
interest possessed by the plaintiffs. Given the nature of plaintiffs’
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interest, constructive notice is reasonable. For some 20 years, the
property in this case remained unimproved, with no building permits
issued or pending. On balance there is no reason for the City to have
to go through the extra time and expense of providing actual notice to
property holders under these circumstances.
The majority, however, holds that the City could have made
reasonable efforts to contact plaintiffs and the other owners of record
of the affected parcels by “perus[ing] the records of the Lake County
collector and then mail notice to the [owners] of the 85 properties
affected.” Slip op. at 8. What the majority means by “perus[ing]” the
records is unclear to me. I take the majority to mean that the City had,
by virtue of the county property tax rolls, the names and addresses of
all the owners of the affected parcels. Again, for the subject property,
those records would only indicate the name of the trustee, who holds
title to the property under the trust. In this case, notice would be
mailed to the trustee who would then forward it to the beneficiaries.
Thus, what the majority views as a mere perusal is, in fact, a title
search or a property tax search on each of the affected parcels. In my
view, this burden is unreasonable in light of the fact that the right to
the use of property does not include the right to a continued zoning
classification.
Practical Effects of the Majority Opinion
The majority expends some effort in trying to limit its holding to
the facts of this case. Slip op. at 9-10. I am concerned that, despite the
majority’s insistence that its holding is limited to the facts of this case,
constructive notice in zoning cases will, after today, never be deemed
reasonable for purposes of procedural due process. There is nothing
about these plaintiffs that would be any different from any other
landowner interested in zoning proceedings, particularly when those
landowners, like plaintiffs here, do not reside within the municipality.4
Moreover, in this case, the zoning change was comprehensive and
4
Section 11–13–2 requires that the notice be published within a newspaper
“published in the municipality.” 65 ILCS 5/11–13–2 (West 1996). The
municipality in question here is Zion and thus the papers used were Zion
newspapers. Plaintiffs reside in Lake Forest.
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involved the entire city. The majority makes no effort to explain what
the guideposts are for decisionmaking regarding reasonable notice in
such situations. Is it a matter of how easy it is to locate those who are
affected by the zoning change? Where will this information come from
and what is the scope of a reasonable investigation in these
circumstances? Does the majority have in mind a title search for all
affected parcels? Or perhaps a search of the county’s tax rolls for each
affected parcel? Such a broad, sweeping investigation appears better
suited to a facial challenge than an as-applied challenge, as the
majority purports to be ruling on in this case. I note that the majority
also states that 85 parcels were affected in this case, implying that the
number of affected parcels is also relevant. Slip op. at 8. At what
number of affected parcels would actual notice become unreasonable?
Would 100 parcels be too burdensome for the City? The majority
further alludes to the cost of the mailing to the City. Slip op. at 8. At
what price point would the cost become unreasonable? These
questions need to be answered or else municipalities will never be
certain when constructive notice, as the statute permits, will be
sufficient to satisfy due process. While procedural due process cases
are unsuitable by their nature for precise formulae to balance interests
(see Mullane, 339 U.S. at 314, 94 L. Ed. at 873, 70 S. Ct. at 657), in
light of the imprecise nature of the property interest deemed by the
majority to require due process protection, the number of parcels
affected and the cost, in my view, would seem irrelevant to the
balancing of interests under the majority’s analysis. For these reasons,
I believe that the majority opinion will cause more findings of
procedural due process violations than not.
Accordingly, while I agree with the majority that plaintiffs were
entitled to notice and the opportunity to be heard on the issue of the
City’s comprehensive zoning plan, I do not agree that the constructive
notice given by the City was constitutionally deficient.
JUSTICE BURKE joins in this dissent.
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Dissent upon denial of rehearing
JUSTICE FREEMAN, dissenting:
Today’s modifications remedy one glaring error in the court’s
original opinion. As I pointed out in my initial dissent, the court had
overlooked the fact that plaintiffs were land trust beneficiaries, not the
property’s actual owners of record. This fact is now reflected in the
court’s opinion. However, the legal basis for requiring the City to
provide actual notice remains as much a mystery to me today as it did
when I filed my original dissent, the central point of which was that
plaintiffs’ interest in the subject property did not require the City of
Zion to provide actual notice of its rezoning efforts. See slip op. at 11
(Freeman, J., dissenting, joined by Burke, J.).
Like its predecessor, the modified opinion raises more questions
than it answers and leaves unaddressed the questions that I had with
the court’s initial decision: What is it about plaintiffs’ property interest
that requires actual notice to them as opposed to constructive notice?
What, exactly, is the rule of today’s decision? I additionally question
the court’s use of “map amendment,” a phrase that it has inserted at
various points in its modified opinion. If this is an attempt at
clarification, what, exactly, is its legal significance? Zoning
amendments are governed under section 11–13–14 of the Illinois
Municipal Code (65 ILCS 5/11–13–14 (West 1996)); however,
today’s opinion cites to, and addresses the constitutionality of, section
11–13–2 (65 ILCS 5/11–13–2 (West 1996)). So, which section of the
Municipal Code is affected by today’s decision? In short, other than
correcting the error regarding plaintiffs’ status as land trust
beneficiaries, today’s modifications do not address any of the legal
concerns raised by the City in calling for rehearing. For those reasons,
as more fully explained below, I again respectfully dissent.
Nature of the Interests Involved
Identifying plaintiffs’ interests in the subject property calls for
taking into account several facts which remain omitted from today’s
opinion even as modified. This case involves vacant parcels that had
been rezoned by the City in 1971. This rezoning was at the request of
the property owner at the time, who had received the City’s approval
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to construct 142 multiple-family units. Construction never began.
Discussions were had in 1972 to sell the property to plaintiffs. At the
time, plaintiffs believed that any development would require extension
of a sewer line, which they knew that the City had planned to
undertake, so they fronted the previous owner $35,000 to pay for the
extension. Later, in November 1972, plaintiffs fronted an additional
$10,000 for sewer connections for all 142 planned, multifamily units.
On that same date, plaintiffs acquired the property as beneficiaries of
a land trust. Zion State Bank and Trust Company held the property as
trustee under Trust Number 498.5
The City did extend the sewer line and, from 1973 through 1974,
plaintiffs constructed 8 single-family homes and 48 multifamily units.
By 1978, plaintiffs had sold all the developed property. To date,
plaintiffs’ remaining property that had been approved for multifamily
residences remains undeveloped, and the property has remained held
in trust.
In 1996, the City undertook a comprehensive rezoning effort, and
a zoning commission was appointed. After public hearings, the city
council passed an ordinance that amended, among other things,
section 102 of the City of Zion Municipal Code. Specifically, the
ordinance repealed the City’s then-current zoning map and
incorporated a entirely new zoning map of the City in the City’s
Municipal Code. The new ordinance affected some 85 parcels,
including the subject property, rezoning them from a multifamily
residential classification to a single-family residential classification.
Initial consideration must be given to plaintiffs’ status as land trust
beneficiaries. The Illinois land trust is “a unique creation of the Illinois
bar,” which over the years has “served as a useful vehicle in real estate
transactions for maintaining secrecy of ownership and allowing ease
of transfer.” People v. Chicago Title & Trust Co., 75 Ill. 2d 479, 487
(1979). Generally, once property is placed in a land trust, the owner’s
5
The tax documents included in the record reveal this to be the case.
Plaintiffs’ names and address do not appear on those records. The documents
indicate the name of the trustee, Chicago Title and Trust Company, and the
company’s Chicago address.
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interest in the real property changes to a personal property interest in
the trust. Chicago Title & Trust, 75 Ill. 2d at 488. Legal and equitable
title of the property rests with the trustee, including the right to
transfer and encumber the property. Chicago Title & Trust, 75 Ill. 2d
at 488. The central feature of the trust is that the beneficiary does not
appear as an owner of record, and the trustee must keep beneficiary
names confidential. Real Property Service, Illinois, Land Trusts
§31:72 (1989). The trust beneficiaries retain other ownership rights
such as the right of possession and the right of the use and enjoyment
of the property. Trustee responsibilities typically include forwarding
bills for taxes or assessments to trust beneficiaries (Real Property
Service, Illinois, Land Trusts §31:58 (1989)), who are responsible for
payment (Chicago Title & Trust, 75 Ill. 2d at 493-94). Thus, any
actual notice sent in this case with respect to the subject property had
to be given to the trustee, who has a fiduciary duty to forward it to
plaintiffs.
Certainly, zoning changes impact the use of the property (how and
for what use the property can be improved) (City of Loves Park v.
Woodward Governor Co., 14 Ill. 2d 623, 625 (1958)), and plaintiffs,
as land trust beneficiaries, would be “persons interested” in the
hearings (65 ILCS 5/11–13–2 (West 1996)). Presumably, the land
trust agreement between plaintiffs and the land trustee set out the
methods by which the trustee would notify plaintiffs of legal notices
applicable to their property. Plaintiffs’ status as land trust beneficiaries
does not change the question raised in this appeal: What type of notice
of Zion’s rezoning efforts, actual or constructive, is required for
purposes of due process?
Reasonable notice depends on a balance between the state’s
interest and the individual interest sought to be protected by the
fourteenth amendment. Mullane v. Central Hanover Bank & Trust
Co., 339 U.S. 306, 314, 94 L. Ed. 865, 873, 70 S. Ct. 652, 657
(1950). The United States Supreme Court has held that, with respect
to zoning cases, the procedures due to landowners are minimal. City
of Eastlake v. Forest City Enterprises, Inc., 426 U.S. 668, 49 L. Ed.
2d 132, 96 S. Ct. 2358 (1976). That is so because, generally, a
landowner’s right to use of the property does not include the right to
the continuation of an existing zoning classification. Pioneer Trust &
Savings Bank v. County of Cook, 71 Ill. 2d 510, 517 (1978). More
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pointedly, the Seventh Circuit has explained, “[z]oning classifications
are not the measure of the property interest but are legal restrictions
on the use of property” (emphasis omitted and added) (River Park,
Inc. v. City of Highland Park, 23 F.3d 164, 166 (7th Cir. 1994)), and
property owners do not have a due process interest in one property
classification over another.
An exception to this rule occurs “ ‘[w]here there has been a
substantial change of position, expenditures or incurrence of
obligations made in good faith by an innocent party under a building
permit or in reliance upon the probability of its issuance.’ ” 1350 Lake
Shore Associates v. Healey, 223 Ill. 2d 607, 615 (2006) (quoting
People ex rel. Skokie Town House Builders, Inc. v. Village of Morton
Grove, 16 Ill. 2d 183, 191 (1959), and citing Fifteen Fifty North State
Building Corp. v. City of Chicago, 15 Ill. 2d 408, 416 (1958)). In
such cases, the landowner has a vested right in the former zoning
classification and will be allowed to complete the construction and use
the property for the purpose originally authorized irrespective of the
subsequent reclassification.
These principles present a significant hurdle for plaintiffs in this
case. The subject property has remained unimproved since plaintiffs
built their initial 48 multiple-family residences in 1974. Plaintiffs have
not alleged that they have received building permits or had even
applied for them to come within the vested-rights exception. So what
is the basis for court’s acceptance of plaintiffs’ argument that they
were entitled to more than publication notice? Again, zoning
classifications legally restrict the use of the property; they are not, in
and of themselves, property interests. Plaintiffs are not entitled to a
continuation of any particular zoning classification. Absent such an
entitlement, plaintiffs have nothing to balance against the City’s
considerable interest in zoning classification, and constructive notice
is sufficient to protect plaintiffs’ due process rights.
The court does not address any of these concerns, but rather
simply concludes that plaintiffs have a “property interest, which is
affected by the zoning map amendment” (slip op. at 6). The cases
cited, however, hardly support the conclusion that actual notice is
required here. For example, Chicago Title & Trust Co. v. Village of
Palatine, 22 Ill. App. 2d 264 (1959), stands for the unremarkable
proposition that the public must be given notice of proposed
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comprehensive zoning plans. That happened here, of course.
Nasierowski Brothers Investment Co. v. City of Sterling Heights, 949
F.2d 890 (6th Cir. 1991), and Harris v. County of Riverside, 904 F.2d
497 (9th Cir. 1990), simply hold that once published notice is given of
a zoning change, new notice must be given if the property is rezoned
to a different classification. Such a situation that did not occur in this
case.
Only American Oil Corp. v. City of Chicago, 29 Ill. App. 3d 988
(1975), seems helpful. There, the appellate court held that, because a
property owner had “legally protected interests,” actual notice of a
proposed zoning change was constitutionally required. But this was
because the City had, prior to the change, issued the owner building
permits for buildings to be erected on the property. American Oil, 29
Ill. App. 3d at 990. The zoning change rendered the resulting gas
station a nonconforming use and diminished the property’s value.
American Oil, 29 Ill. App. 3d at 990-91. American Oil simply
reinforces the notion that courts will protect the interests of property
owners in zoning disputes when vested rights in a particular
classification are in play. I take no issue with that. As explained above,
however, plaintiffs have not asserted any vested right in the prior
classification, a fact which the majority itself notes in its opinion. Slip
op. at 5 n.1.6
More helpful in addressing the concerns raised in this case is
Braden v. Much, 403 Ill. 507 (1949).The case involved a rezoning
amendment to change an apartment house district to a specialty shop
district.7 Notice by publication was made in the Chicago Journal of
6
American Oil is distinguishable on another ground as well. There the
zoning amendment at issue concerned only the subject property. In contrast,
plaintiffs’ land was not the only parcel affected by the City’s comprehensive
rezoning effort.
7
In Braden, the plaintiffs purchased the subject property in 1923. In
January 1946, an amendatory ordinance was introduced to the Chicago City
Council, upon a petition signed by neighboring property owners, seeking a
change in the district’s classification. The matter was referred by the City
Council to its committee on building and zoning. After a public hearing, the
committee recommended the amendatory ordinance for passage by the City
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Commerce of the public hearing. In upholding the ordinance against
the plaintiffs’ due process challenge, this court stated that it made no
difference that the parties “did not read the particular newspaper in
which the notice was given. The Chicago Journal of Commerce is a
newspaper published within the municipality and the requirements of
the statute were complied with by the publication in that newspaper.”
Braden, 403 Ill. at 514. Parenthetically, the court acknowledged the
custom of some municipalities, including Chicago, to give actual
notice in addition to the requisite publication notice. Although the
parties disputed whether such actual notice had been given, the court
affirmed the trial court’s ruling, holding that the custom “was
complied with”; however, this court gave no indication that, had it
not, publication notice of the zoning amendment in Journal of
Commerce would not have been sufficient. Braden, 403 Ill. at 514.
Additionally, the court in Braden noted that, at the time the
plaintiffs bought their property, it was zoned for residential and
apartment purposes, and the plaintiffs had reason to rely upon the rule
of the law that the classification would not be changed “unless for the
public good.” Braden, 403 Ill. at 517. The public good, however, had
been established by virtue of the fact that the city council acted on
evidence that the rezoning brought the property to its highest and best
use–the very goal of the police power to zone. Braden, 403 Ill. at 516.
This reinforces the notion that zoning is a restriction on the use of the
property, not on a individual property interest. In other words, the
court in Braden did not regard the plaintiffs as having a property
interest in the former zoning classification. This stands in contrast to
the conclusion reached today by the court that plaintiffs’ entitlement
to actual notice arose “out of plaintiffs’ property interest, which is
affected by the zoning map amendment.” Slip op. at 6. Also significant
is the fact that Braden involved only a small rezoning effort, in
contrast to the comprehensive plan at issue here. If notice by
publication suffices where only a known handful of people are affected
by an amendment sought by neighbors as in Braden, why would it not
suffice in the context of citywide rezoning effort affecting the entire
population? Finally, Braden teaches that the importance of the
newspaper is irrelevant.
Council, which ultimately enacted the ordinance in March 1946.
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This leads me to comment on the particular publication in this
case. In its petition for rehearing, the City notes that the court here
“went out of its way to draw attention to” the fact that notices were
published “ ‘underneath an advertisement for Oneida Bingo Casino’ ”
and “ ‘underneath a scuba diving advertisement.’ ” The City also
noted that the court had also characterized the Bargaineer, one of the
newspapers in which the notice was published, as a “ ‘free community
newspaper.’ ” The City argues that these comments suggest that the
type of newspaper, along with the advertisement’s placement, played
a role in the court’s analysis. The modified opinion does not address
that concern. Of course, as the City points out, in smaller
communities, a free advertising newspaper may be the only one
published in the municipality and it might be assumed that such papers
are scoured over by local residents, though this would be entirely
speculative. Moreover, the City would have no control over the
content of the paper surrounding the text of the notice.
Mullane v. Central Hanover Bank & Trust Co.
The court says that this case calls for a “textbook application” of
the analysis in Mullane v. Central Hanover Bank & Trust Co., 339
U.S. 306, 94 L. Ed. 865, 70 S. Ct. 652 (1950). See slip op. at 7. In
Mullane, the Supreme Court held that a state must provide “notice
reasonably calculated, under all the circumstances, to apprise
interested parties of the pendency of the action and afford them
opportunity to present their objections.” Mullane, 339 U.S. at 314, 94
L. Ed. at 873, 70 S. Ct. at 657. The proceeding there was an action to
settle the accounts of a common trust fund among all the trust’s
members. The Court held that the known beneficiaries were entitled
to actual notice as opposed to notice by publication. The Court
emphasized that notice will pass due process muster when “the
practicalities and peculiarities of the case *** are reasonably met.”
Mullane, 339 U.S. at 314-15, 94 L. Ed. at 873, 70 S. Ct. at 657. The
focus is on the “reasonableness” of the means chosen by the state.
Mullane, 339 U.S. at 315, 94 L. Ed. at 874, 70 S. Ct. at 657.
Reasonableness is measured on the outcome of the balance between
the “interest of the State” and the “individual interest sought to be
protected by the Fourteenth Amendment.” Mullane, 339 U.S. at 314,
94 L. Ed. at 873, 70 S. Ct. at 657.
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Left unacknowledged in either the court’s original or modified
opinion is the significant difference between the judicial action in
Mullane to finally settle the monetary accounts in a common trust and
a municipality’s legislative action, involved here, to amend its
comprehensive zoning plan.Even absent this difference, the City, as I
have already noted, has the countervailing interest in this case, not
plaintiffs. The purpose of zoning, as expressed in the Municipal Code,
is to limit the rights of citizens to use their properties in order to
promote and protect the public health, safety, comfort, morals and
welfare of the people. See Napleton v. Village of Hinsdale, 229 Ill. 2d
296 (2008); see also River Park, Inc., 23 F.3d at 166. It is against
these vital interests that we must weigh plaintiffs’ interests. Given that
plaintiffs’ legally protected interests do not include the right to a
continued zoning classification, constructive notice is reasonable.
Indeed, “courts generally hold that due process does not require
personal notice to landowners or adjacent property owners, but that
notice by publication, that is usually required by statute is sufficient to
satisfy the ‘reasonably calculated to apprise’ due process standard for
notice.” 1 E. Ziegler, Rathkopf’s Law of Zoning & Planning §12:5, at
12–18 (4th ed. 2009), citing Mullane, 339 U.S. at 315, 94 L. Ed. at
874, 70 S. Ct. at 657.
For some 20 years, the subject property here remained
unimproved, with no building permits issued or pending. Mullane
simply does not explain why any local governmental entity, like the
City, should be made to expend time, effort, and most importantly,
taxpayer expense to give any notice other than by publication to
plaintiffs like these in order to effect a zoning change. In my original
dissent, I noted that the court believed that the City could have made
reasonable efforts to contact plaintiffs and the other owners of record
of the affected parcels by “perus[ing] the records of the Lake County
collector and then mail notice to the [owners] of the 85 properties
affected.” Slip op. at 16 (Freeman, J., dissenting, joined by Burke, J.).
Left unclear was what the court meant by “perus[ing]” the records.In
modifying its opinion, the court today curiously replaces“peruse” with
“review.” This revision does nothing to clear up one of the original
questions left unanswered from the court’s initial opinion–What
exactly is the scope of the inquiry that the court is requiring a
municipality to undertake in such cases? Does the court mean
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“review” to require a title search or a property tax search on each of
the affected parcels, similar, if not identical, to the type of notice
required for special uses or zoning variations sought by individual
property owners? See 65 ILCS 5/11–13–7 (West 1996) (requiring
“written notice, either in person or by registered mail, return receipt
requested, on the owners, as recorded in the office of the recorder of
deeds or the registrar of titles of the county in which the property is
located and as appears from the authentic tax records of such
county”).Such a burden would be entirely unreasonable given that the
right to the use of property does not include the right to a continued
zoning classification.
The Rule of Today’s Case
I also took issue, in my initial dissent, with the court’s attempt to
limit its holding to the facts of the case. Slip op. at 9-10. However, the
effect of its holding is not as easily limited as the court apparently had
hoped it would be. Had it been so, the response to the court’s original
opinion would have been much different. Not only did this court
receive a petition for rehearing from the City, but, in an unusual move,
it also received a motion, filed jointly by some 11 municipalities from
around the state, for leave to file a brief amicus curiae, in support of
the City’s petition for rehearing.The court, unwilling to hear from the
very municipalities affected by its opinion, denied leave on January 19,
2010. The court likewise today denies the City’s request for rehearing,
but, in so doing, attempts to further limit its original holding.
Ostensibly, the court limits the reach of today’s decision to the
“type of zoning map amendment at issue.” Slip op. at 7. I am not sure
what the court means by this. Perhaps the court is suggesting,by using
“map amendment,” that the City’s rezoning effort was of limited
application, so providing actual notice was a matter of little moment.
If so, the record belies such an implication. In fact, the record reveals
the City undertook a comprehensive rezoning of the entire City, not
just an amendment intended only to affect a limited area of the City.
Amendments of zoning ordinances are governed by section 11–13–14
of the Municipal Code (65 ILCS 5/11–13–14 (West 1996)). An
amendment to a zoning ordinance changes or alters the original
ordinance or some of its provisions. Jones v. City of Carbondale, 217
Ill. App. 3d 85 (1991). A zoning amendment under section 11–13–14
-26-
“consists of either a change in the text of the ordinance or an
alteration of the official zoning map.” S. Connor, Zoning, in II Illinois
Municipal Law Series–Annexation, Zoning & Regulatory Authority
§2.19 (Ill. Inst. for Cont. Legal Educ. 2006). What occurred in 1996
does not appear to be a mere alteration of the zoning map. Rather, the
City sought to enact a new ordinance affecting the entire City. The
ordinance states that it is a “comprehensive amendment” that, among
other things, “repeal[s] the current zoning map of the City and
incorporate[s] into the Zion Zoning Ordinance a new zoning map.” In
addition to the zoning reclassification at issue in this case, the
ordinance also designated land as public parks and open space and
reclassified property in various business districts.
The ordinance cites specifically to section 11–13–2 of the
Municipal Code, which provides the procedure to be followed when
a municipality desires to invoke the power given to it by the legislature
to create an ordinance or “to adopt a new ordinance.” 65 ILCS
5/11–13–2 (West 1996).That procedure calls for, among other things,
the appointment of a zoning commission to “recommend the
boundaries of districts and appropriate regulations to be enforced.”65
ILCS 5/11–13–2 (West 1996). The ordinance at issue states that such
a zoning commission was appointed and did, in fact, make
recommendations to the City’s mayor and commissioners, as required
by section 11–13–2. In contrast, section 11–13–14, which governs
zoning amendments, does not require the appointment of a zoning
commission. The court’s use of “map amendment” therefore seems
inconsistent with the section of the Municipal Code, section 11–13–2,
that is purportedly the subject of this opinion. In any event, this
confusion in terminology alone underscores the necessity for rehearing
in this case.
I further note that although this case specifically addresses
ordinances under the Municipal Code, similar statutes with almost
identical language concerning notice by publication are contained in
the Counties Code. See 55 ILCS 5/5–12007, 5–12014 (West 1996).
Today’s opinion necessarily affects cases brought under that Code as
well. This reinforces my belief that the court’s opinion will have a
much broader impact than it intends, despite its attempt to limit its
holding to only the specific facts of this case and the “type of zoning
map amendment” involved. Can the court really mean that today’s
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holding is limited only to zoning map amendment cases reclassifying
multiresidential zones to single-family zones where the case involves
beneficial interest holders in land trusts who have fronted money to
local governmental entities to extend sewer connections?
One other aspect of today’s modifications merits comment. The
court states that, “in accordance with familiar constitutional principles,
[it] conclude[s] that [section 11–13–2] is unconstitutional as applied
to the facts and the zoning amendment at issue in this case.” Slip op.
at 7. At the conclusion of its opinion, however, the court states that
its “holding also does not affect the continuing validity of the use of
publication notice under section 11–13–2 of the Municipal Code.”
Slip op. at 10. The court is fooling itself if it thinks that the continuing
validity of section 11–13–2 will not be a matter of question after
today. Given that the court has not explained what it is about these
plaintiffs’ property interests that required actual notice, it will be
difficult for local governmental entities to know when publication
notice under the statute will suffice and when it will not.
Accordingly, I remain convinced, as I was in my initial dissent,
that constructive notice in zoning cases will, after today, never be
deemed reasonable for purposes of procedural due process. Despite
the court’s superficial attempts to limit the decision’s reach, the
opinion reads more like a facial ruling to the constitutionality of
section 11–13–2 rather than an as-applied ruling. There is nothing
about these plaintiffs that would be any different from any other
landowner interested in zoning proceedings, particularly when those
landowners, like plaintiffs here, do not reside within the municipality.8
Moreover, in this case, the zoning change was comprehensive and
involved the entire City. The court makes no effort to explain what the
guideposts are for decisionmaking regarding reasonable notice in such
situations. Is it a matter of how easy it is to locate those who are
affected by the zoning change? Where will this information come from
and what is the scope of a reasonable investigation in these
circumstances?
8
Section 11–13–2 requires that the notice be published within a
newspaper “published in the municipality.” 65 ILCS 5/11–13–2 (West
1996). The municipality in question here is Zion and thus the papers used
were Zion newspapers. Plaintiffs reside in Lake Forest.
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I note that the court also states that 85 parcels were affected in
this case, implying that the number of affected parcels is also relevant.
Slip op. at 8. At what number of affected parcels would actual notice
become unreasonable? Would 100 parcels be too burdensome for a
city, or just this city? The court further alludes to the cost of the
mailing. Slip op. at 8. At what point does the cost become
unreasonable? In denying rehearing, the court has missed the
opportunity to provide answers to these questions and, as a result,
municipalities and counties will never be certain when constructive
notice, all the statutes require, will be sufficient to satisfy due process.
While procedural due process cases are unsuitable by their nature for
precise formulae to balance interests (see Mullane, 339 U.S. at 314,
94 L. Ed. at 873, 70 S. Ct. at 657), in light of the imprecise nature of
the property interest deemed by the court to require actual notice to
satisfy due process, the number of parcels affected and the cost, in my
view, would seem irrelevant to the balancing of interests under the
court’s analysis.
While I agree that plaintiffs were entitled to notice and the
opportunity to be heard on the issue of the City’s comprehensive
zoning plan, I do not agree that the constructive notice given by the
City was constitutionally deficient. I therefore continue to strongly
dissent from the court’s ultimate resolution of this case and would
grant the City’s petition for rehearing.
JUSTICES GARMAN and BURKE join in this dissent.
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