JOSEPH PASSALINO et al., Appellees, v. CITY OF ZION, Appellant.
No. 107429
Supreme Court of Illinois
Opinion filed December 17, 2009.
Modified upon denial of rehearing April 22, 2010.
237 Ill. 2d 118
Robert J. Masini, of Diver, Grach, Quade & Masini, of Waukegan, for appellees.
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
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—1, 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.
“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 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.
“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
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
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 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 (
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.
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 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
We find this case to be a textbook application of 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
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
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 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 (
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,
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 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. 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 (
To clarify for the bench and bar, our holding does not require actual notice to these plaintiffs, as beneficiaries
CONCLUSION
For all the foregoing reasons, the judgment of the circuit court of Lake County is affirmed.
Affirmed.
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.
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
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
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 Service, 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 Service, Illinois, Land Trusts §31:58 (1989)), who is responsible for their payment
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 (
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.’ ”
Since plaintiffs’ initial development of multiple-family residences in 1974, the subject property has remained unimproved. Plaintiffs have 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” (237 Ill. 2d at 124), 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
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 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. 237 Ill. 2d at 123 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 237 Ill. 2d at 126. 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’ interest, constructive notice is reasonable. For some 20 years, the property in this case remained unimproved, with no
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.” 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. 237 Ill. 2d at 128-29. 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
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.
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 237 Ill. 2d at 130 (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
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 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
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 an 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 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 posses
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 (
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 pointedly, the Seventh Circuit has explained,
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 the 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.
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. 237 Ill. 2d at 123 n.1.6
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 clas
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
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 237 Ill. 2d at 126. 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.
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 legisla
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.‘” 237 Ill. 2d at 137 (Freeman, J., dissenting, joined by Burke, J.). Left unclear was what the
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. 237 Ill. 2d at 128-29. 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.
The ordinance cites specifically to
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
One other aspect of today‘s modifications merits comment. The court states that, “[i]n accordance with familiar constitutional principles, [it] conclude[s] that [section 11-13-2] is unconstitutional as applied to the facts and the type of zoning amendment at issue in this
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
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.