Passalino v. City of Zion

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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. 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. 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 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 singlefamily 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 -2- 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 Friday, April 12, 1996 at 7:00 P.M. Both Public Hearings will be held in the Zion -3- 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 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 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 -4- a motion for summary judgment. Plaintiffs argued that due process required actual notice to them of the proposed zoning change. 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 rezoning of 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, either the facial validity of the Municipal Code or the validity of the 1996 ordinance, facial or as-applied. -5- 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 change. 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 change 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 -6- 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 agree with plaintiffs that the statute is unconstitutional as applied to the facts of 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 31415, 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 -7- 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 zoning meeting. The City has never rebutted the general assertion that the plaintiffs address could have been easily ascertained and they could have been easily informed. Tax assessments had been sent to the plaintiffs, as beneficiaries of a land trust, since 1973. Instead of taking advantage of tax records, 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 peruse the records of the Lake County collector and then mail notice to the record owners of the 85 properties affected. As defense counsel agreed at oral argument, this would have cost approximately $30. As such, it is not unreasonable to mail notice to the owners of 85 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, -8- 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 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. Therefore, their procedural due process rights deriving from the fifth and fourteenth amendments to the United States Constitution were violated, making section 11 13 2 of the Municipal Code (65 ILCS 5/11 13 2 (West 1996)) unconstitutional as applied to the facts of this case. To clarify for the bench and bar, this holding 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 case, notice was insufficient such that ordinance No. 96 O 71 was invalid in its application to plaintiff s property and that the property -9- 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. 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 -10- 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 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 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 Number 498. -11- 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 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 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. -12- 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 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. -13- 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. 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 -14- 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 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 -15- 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 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. 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. -16- 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. -17-

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