Village of Southern View v. County of Sangamon

• Decision Date: 13 July 1990
• Parties: , 170 Ill.Dec. 203 VILLAGE OF SOUTHERN VIEW, an Illinois municipal corporation, Plaintiff-Appellant, v. COUNTY OF SANGAMON, a body corporate and politic, First of America Bank--Springfield, N.A., as Trustee under Trust 35-6438, dated
• Court: United States Appellate Court of Illinois

Page 639

592 N.E.2d 639

228 Ill.App.3d 468, 170 Ill.Dec. 203

VILLAGE OF SOUTHERN VIEW, an Illinois municipal corporation, Plaintiff-Appellant, v. COUNTY OF SANGAMON, a body corporate and politic, First of

America Bank--Springfield, N.A., as Trustee under Trust

35-6438, dated July 13, 1990, and Recyclers International

Corporation, Defendants-Appellees.

No. 4-91-0867.

Appellate Court of Illinois,

Fourth District.

May 7, 1992.

Val C. Simhauser, Simhauser Law Office, Springfield, for plaintiff-appellant.

Donald M. Cadagin, State's Atty., Springfield, John Kenneth Peek, Asst. State's Atty. for County of Sangamon.

Michael O'Hara, Cavanagh & O'Hara, Springfield, for First of America Bank.

Justice McCULLOUGH delivered the opinion of the court:

Plaintiff Village of Southern View filed a three-count complaint on August 13, 1991, seeking injunctive and declaratory relief alleging that the failure to mail a copy of the notice of a public hearing on a proposed zoning amendment to the clerk of Southern View rendered the amendment rezoning the land void ab initio. Defendant Sangamon County filed a motion for judgment on the pleadings on September 10, 1991, alleging the provision in the ordinance requiring that a copy of the notice be mailed to the clerk of Southern View was not a jurisdictional prerequisite to action by the county board or the zoning board of appeals. On September 11, 1991, defendants First America Bank, as trustee under trust No. 35-6438, and Recyclers International Corporation filed a motion to dismiss and/or for summary judgment alleging that the requirement of mailing a copy of the notice to the clerk of Southern View was ministerial rather than jurisdictional in nature and, thus, the amendment to the ordinance zoning the land was not void. A hearing on defendants' motions was held on October 16, 1991, and the trial court issued a written order on October 31, 1991, granting summary judgment in favor of defendants. Southern View appeals that order granting defendants' motions, contending the zoning amendment was void ab initio because a copy of the notice of the public hearing was not mailed to the clerk of Southern View. Appearing before this court were plaintiff's attorney and counsel for First of America Bank on behalf of all defendants. We affirm.

Defendants filed a petition to rezone land located within 1 1/2 miles of the corporate limits of Southern View from "A" to "I-2" in order to construct a landscape-waste composting facility. A public hearing on this proposed zoning amendment was held on October 18, 1990, before the Sangamon County zoning board of appeals. The Sangamon County board of supervisors approved the reclassification of the land on November 20, 1990. Construction of the landscape-waste composting facility began on August 21, 1991.

Section VII(G) of the Sangamon County zoning ordinance details the procedure for amending the ordinance. (Sangamon County Zoning Ordinance § VII(G) (1985).) Specifically, section VII(G)(4)(a) sets forth the prerequisites for notice of a public hearing on any proposed amendment. (Sangamon County Zoning Ordinance § VII(G)(4)(a) (1985).) That section provides:

"No amendment shall be granted by the County Board except after a public hearing before the Zoning Board of Appeals of which there shall be a notice of the time and place of the hearing published at least once, not more than thirty (30) or less than fifteen (15) days before the hearing, in one or more newspapers with a general circulation within Sangamon County. A written notice shall be served at least ten (10) days before the hearing on the owners of the properties located adjacent to and across the street or alley from the location where the amendment is requested. In addition, at least fifteen (15) days prior to each hearing, notice of such hearing shall be posted on the street frontage of the land proposed to be reclassified by amendment. The notice need only be placed in one place on the site. In the event the hearing is postponed, the property shall be reposted with the new time, place, and date, and shall be republished and as in the initial case, but with new time, place and date for the hearing. A copy of such notice shall be mailed to the clerk of each municipality, the corporate limits of which lie within one and one-half miles of the land proposed to be reclassified. If the real estate subject to the petition shall be situated within a township or in which there is a newspaper regularly published or in which there is a newspaper generally circulated that is not published in the City of Springfield, Illinois, then there shall be published in said newspaper, a legal publication identical to and in addition to that above stated. Meetings of the Zoning Board of Appeals on amendments shall be held in the County Building." Sangamon County Zoning Ordinance § VII(G)(4)(a) (1985).

It is undisputed that notice of the time and place of the hearing was published in a newspaper with a general circulation in Sangamon County, served upon the owners of the adjacent property and posted on the land to be rezoned, all within the time limitations specified in the ordinance. It is further undisputed that the corporate limits of Southern View lie within 1 1/2 miles of the land which was reclassified. However, a copy of the notice of the public hearing was not mailed to the clerk of Southern View. Southern View was not represented at the public hearing on this proposed amendment.

In its opinion granting defendants' motions, the trial court found the timely publication of the proposed zoning change and the public hearing were the jurisdictional prerequisites for validity of any zoning action by the county boards. The court further found that the ordinance required additional notice for adjacent landowners and timely posting of notice on the land proposed to be rezoned. The court then stated that the requirement that Southern View be mailed a copy of the notice was ministerial in nature, rather than jurisdictional. Since the mailing requirement was ministerial, the trial court concluded the zoning reclassification amendment was not void ab initio because of the failure to mail this copy of the notice and, thus, granted defendant's motions.

Southern View asserts the word "shall" must be interpreted consistently throughout section VII(G)(4)(a) of the ordinance, thus making the mailing requirement jurisdictional. It maintains that if the word "shall," when used in conjunction with the publication, service on adjacent property owners, and posting requirements, is given a mandatory interpretation, a similar interpretation must also be given to the mailing requirement.

Defendants contend that only the first three notice requirements (publication, service on adjacent property owners, and posting on the affected land) are jurisdictional and the mailing requirement is ministerial. Defendants suggest three reasons in support of this view. First, they point out that the publication, service on adjacent property owners and posting requirements all have time limitations, while the mailing requirement does not. Second, defendants refer to subsection VII(G)(4)(b) of the ordinance, which provides that, if the amendment is proposed by a member of the county board or planning commission, a copy of the application or the county board's order shall be served on the record owners of the property within a specific time limitation. Defendants highlight the language stating that this service is "in addition to" the posting and publishing requirements of subsection VII(G)(4)(a). Defendants, as did the trial court, regard the omission of the mailing requirement in this subsection as indicative of the drafters' intent to make it ministerial rather than jurisdictional, as under subsection (a). Finally, defendants suggest that since this requirement only calls for "mailing" a "copy" of the notice, rather than actual service upon the clerk of the municipality, it is not jurisdictional but only ministerial.

The purpose of notice is to give all parties an...