Passalino v. The City Of Zion

Decision Date22 April 2010
Docket NumberNo. 107429.,107429.
PartiesJoseph PASSALINO et al., Appellees,v.The CITY OF ZION, Appellant.
CourtIllinois Supreme Court

237 Ill.2d 118
928 N.E.2d 814
340 Ill.Dec.

Joseph PASSALINO et al., Appellees,
The CITY OF ZION, Appellant.

No. 107429.

Supreme Court of Illinois.

Dec. 17, 2009.
As Modified Upon Denial of Rehearing April 22, 2010.

928 N.E.2d 815
Paul N. Keller, of Ancel Glink Diamond Bush DiCianni & Krafthefer, PC, Chicago, for appellant.

Robert J. Masini, of Diver, Grach, Quade & Masini, Waukegan, for appellees.
928 N.E.2d 816
Chief Justice FITZGERALD delivered the judgment of the court, with 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.


This matter arises out of the zoning of a certain parcel of vacant real property located within the City. In 1971, the property's previous owner negotiated with the City to prepare the property for future development of eight single-family homes and 142 multiple-family units. On December 7, 1971, the Zion city council passed ordinance No. 71-O-61, which assigned zoning classifications to the property of “R8,” for the development of single-family homes, and “R2,” for the development of multiple-family dwellings.

In 1972, plaintiffs, as beneficiaries of a land trust, acquired the property. According to the complaint, when the subject property was purchased, extra monies were paid to the previous owner, which were then immediately paid to the City for the extension of Zion's sanitary sewer main and its connection to all of the proposed 142 multifamily units. This consisted of two payments that together totaled $45,000. During 1972 and 1973, Joseph Passalino constructed the 8 single-family homes and 48 of the planned 142 multifamily units. By 1978, Passalino had sold all of the developed property.

In March 1996, the City decided to adopt a new zoning ordinance for the entire municipality. The City proceeded consistently with the provisions in section 11-13-2 the Illinois Municipal Code (65 ILCS 5/11-13-2 (West 1996)). This section provides:

“The corporate authorities in each municipality which desires to exercise the powers conferred by this Division 13, or who have exercised such power and desire to adopt a new ordinance, shall provide for a zoning commission with the duty to recommend the boundaries of districts and appropriate regulations to be enforced therein. The commission shall be appointed by the mayor or president, subject to confirmation by the corporate authorities. The commission shall prepare a 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
928 N.E.2d 817
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:
City of Zion zoning
Comprehensive Zoning Amendment
Zion Zoning Commission will hold two public hearings:
Wednesday, April 3, 1996 at 7:00 P.M.
Friday, April 12, 1996 at 7:00 P.M.
Both Public Hearings will be held in the Zion
City Council Chambers at 2828 Sheridan Road
A copy of the recently adopted 2010 Comprehensive Plan update and proposed comprehensive zoning amendment will be available for review at City Hall Monday through Friday between the hours of 8:00 a.m. and 5:00 p.m.”

An identical second notice was published on March 14, 1996, in the Zion-Benton News on page 27 underneath a scuba diving advertisement.

The planning commission held two meetings to discuss the ordinance. According to the minutes of both meetings, no member of the public commented or objected. The commission recommended to the mayor and the city council that the zoning map amendment be adopted as presented in the tentative report. In June 1996, the City adopted ordinance No. 96-O-41, entitled “Amending Chapter 102 Zoning of the Municipal Code of the City of Zion, Illinois, of 1992 Comprehensive Rezoning.” Eighty-five parcels in the City were affected, including the subject property. The property was rezoned from R2 multifamily to R8 single family.

In 2001, Joseph Passalino sought to develop his remaining property with multifamily units. To his surprise, his plans for multifamily dwellings were rebuffed by the City because of the zoning change. According to his affidavit found in the record, Passalino never received any notice via United States mail or by any other delivery method. Lake County's property tax records for 1995 identify the legal owner as the land trust and also contain a mailing address. Also according to the affidavit, plaintiffs have regularly received assessment notices and real property tax bills for the property in each year since 1973. They have been residents of Lake Forest since 1963.

In 2007, plaintiffs filed the current second-amended complaint for declaratory relief in the circuit court of Lake County.

928 N.E.2d 818
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).


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, 321 Ill.Dec. 688, 890 N.E.2d 410 (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, 126 S.Ct. 1708, 1712, 164 L.Ed.2d 415, 423 (2006), quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 656-57, 94 L.Ed. 865, 873 (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...

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