Passalino v. The City Of Zion
| Decision Date | 22 April 2010 |
| Docket Number | No. 107429.,107429. |
| Parties | Joseph PASSALINO et al., Appellees,v.The CITY OF ZION, Appellant. |
| Court | Illinois Supreme Court |
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.
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:
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.
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).
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 interest, which is affected by the zoning map amendment. See Chicago...
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