PASSALINO v. City of Zion

928 N.E.2d 814, 237 Ill. 2d 118

• Court: Illinois Supreme Court
• Decided: April 22, 2010
• Docket: 107429
• Status: Published

Opinions

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—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.

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 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 EM.

and

Friday, April 12, 1996 at 7:00 EM.

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 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 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 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 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. ***

*** [WJhen 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.

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.” 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 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 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 (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. 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 plaintiffs 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.

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.