Herrington v. Peoria County

• Decision Date: 27 April 1973
• Docket Number: No. 72--226,72--226
• Citation: 11 Ill.App.3d 7,295 N.E.2d 729
• Parties: Harold W. HERRINGTON et al., Plaintiffs-Appellants, v. The COUNTY OF PEORIA, a Body Politic and Corporate in the State of Illinois, et al., Defendants-Appellees. . Third District
• Court: United States Appellate Court of Illinois

Page 729

295 N.E.2d 729

11 Ill.App.3d 7

Harold W. HERRINGTON et al., Plaintiffs-Appellants, v. The COUNTY OF PEORIA, a Body Politic and Corporate in the

State of Illinois, et al., Defendants-Appellees.

No. 72--226.

Appellate Court of Illinois. Third District.

April 27, 1973.

Joseph Toohill, Farmington, for plaintiffs-appellants.

Robert Calkins, State's Atty., Peoria, for defendants-appellees; James S. Dixon, Peoria, of counsel.

STOUDER, Justice:

This is an appeal from a judgment of the Circuit Court of Peoria County in an action for a declaratory judgment, filed by the plaintiffs-appellants who sought to have an amendatory zoning ordinance declared void for failure to comply with Sec. 3158 of Chap. 34, Ill.Rev.Stat.1969.

The Defendants, Doris Dixon and Geraldine Dixon James, obtained options to purchase property on which they intended to build an automobile race track. The property, which was zoned for agricultural use, was adjacent to the Brimfield interchange of Interstate Route 74 in Peoria County. To the east of the property there was other land, however, the other three sides were bounded by public roadways. The plaintiffs, Harold Herrington and others, owned property located on the three public roadways surrounding the defendants' property but across the road therefrom. the defendants filed petitions to change the zoning of the optioned property to Commercial on one part of the property and Industrial with a Special Use for a motor raceway on another part. Not included in the petitions for rezoning were three strips of land 30 feet in width on the north, west and south borders. By not including the 30 foot strips in the property to be rezoned, such property thus did not abut on any of the three public roadways. After the defendants filed the petitions with the Peoria County Board of Appeals, hearings were held and the rezoning was recommended. The plaintiffs then filed protests with the County Clerk claiming to be owners of more than 20 percent of the frontage opposite the frontage proposed to be altered by the rezoning. This protest was pursuant to Sec. 3158 of Chap. 34, Ill.Rev.Stat. (1969) which contains the following language:

'In case of written protest against any proposed amendment, signed and acknowledged by the owners of twenty percent of the frontage proposed to be altered, or by the owners of twenty percent of the frontage immediately adjoining or across an alley therefrom, or by the owners of twenty percent of the frontage directly opposite the frontage proposed to be altered, * * *, filed with the county clerk, such amendment shall not be passed except by the favorable vote of three-fourths of all members of the county board.'

Following the protest, the County Board adopted an ordinance granting the rezoning by a vote of 26 in favor and 9 against.

The present declaratory judgment action was then filed by the plaintiffs, who alleged that the ordinance should be declared void because not approved by three-fourths of the members of the County Board.

It is undisputed that the plaintiffs own more than 20 percent of the frontage directly opposite the frontage proposed to be altered unless the intervention of the 30 foot strips between the proposed rezoning and the public roadways defeats the plaintiffs' standing to protest. The Circuit Court found that the plaintiffs had failed to prove they were protestors within the statute, because they were not directly opposite any frontage being rezoned. According to the trial court, the ordinance required only a simple majority, which it received.

It has been called to our attention by both parties that the court should adopt certain rules where a matter of statutory interpretation is involved. According to the appellants, the legislature is not presumed to have done a useless thing in enacting a law (Pinkstaff v. Pennsylvania Railroad Co., 31 Ill.2d 518, 202 N.E.2d 512) but is presumed to have passed an effective law. Linkens v. Furman, 52 Ill.App.2d 1, 201 N.E.2d 645. Statutes should be construed in a manner which will accomplish the objects sought by their enactment. Illinois National Bank v. Chegin, 35 Ill.2d 375, 220 N.E.2d 226. The object of the statute under consideration is to provide a special right to protest to near-by property owners when a zoning change is proposed and it is thwarted if a petition for rezoning can exclude a strip of property which thereby prevents protest by near-by property owners. An act of the legislature will not be construed to result in an absurd, inconvenient or unjust consequence. People v. Hudson, 46 Ill.2d 177, 263 N.E.2d 473.

On the other hand appellees urge that zoning statutes are in derogation of common law and are to be strictly construed in favor of the property owners. Voisard v. County of Lake, 27 Ill.App.2d 365, 169 N.E.2d 805. Zoning statutes are subject to strict construction in favor of the right of a property owner to the unrestricted use of his property. City of Rockford v. Eisenstein, 63 Ill.App.2d 128, 211 N.E.2d 130. If the property proposed to be rezoned has no frontage then according to the statute there can be no protestors since protestors are specifically defined in terms of frontage. Consistent with the logic of their position, appellees insist that if the property sought to be rezoned is separated from a public roadway by a distance of one inch, one foot, five feet, or thirty feet as in the instant case, property sought to be altered has no frontage and there can be no protestors.

There is no dispute as to the existence of the rules cited by both parties, rather it is the application of the rules to the facts which is in dispute.

The Section of the Counties Zoning Act, Ill.Rev.Stat. Chap. 34, Sec. 3158, which is in issue before us, permits a protest by the owners of 20 percent of the frontage directly opposite the frontage proposed to be altered. We are confronted with the question whether this Section of the Statute is applicable where the petition for rezoning does not include a strip of property between the property proposed to be rezoned and the public roadway.

The constitutionality and purpose of legislation which affords special rights to those property owners particularly situated has been approved. Bredberg v. City of Wheaton, 24 Ill.2d 612, 182 N.E.2d 742. In Bredberg the statute involved was the Cities & Villages Act, Ill.Rev.Stat. (1957) Chap. 24, Sec. 73--8 which is now Sec. 11--13--14 of Chap. 24, Ill.Rev.Stat. (1969). This Statute has language identical to that found in the Zoning Provision of the Counties Act.

In the Bredberg case the court, quoting with approval from Farmer v. Meeker, 63 N.J.Super. 56, 163 A.2d 729, observed:

'The statute does not prevent the governing body from amending its ordinance.

It merely requires a...