dissenting:
I do not agree with the majority of the court in so far as the court concludes the protester met the statutory qualifications. I concur in that part of the opinion which holds invalid the county ordinance requiring a three-fourths majority of the County Roard if the Roard of Zoning Appeals recommends against the modification or amendment of the zoning. I also agree that for the purpose of determining the status of owners of immediately adjoining frontage, the smaller tract should be considered part of the larger tract.
I am in agreement with the majority that the purpose of the statute and ordinance enacted pursuant thereto is to provide some means for those property owners specially affected by alterations in zoning to have a more significant voice in the rezoning process than those not so specially affected. As is true in most zoning cases and particularly in rezoning cases, some existing landowners may feel that their- property will depreciate in value or decrease in desirability if uses of other property in the area are changed. Likewise the owner of property seeking an altered use of his property may well believe that the pre-existing use depreciates the value of his property and that he is entitled to the enhancement in value that might occur from a change in zoning classification. It is a balance between these competing viewpoints which zoning and rezoning seek to achieve. Not only does the ordinance establish special protections for landowners whose interest may be more substantially affected than others but it also establishes limitations as to the class of landowners entitled to the special protection.
Thus so far as the purpose of the legislation is concerned and the county ordinance enacted pursuant to it, it can be said that the legislature has established standards or criteria for determining the class of landowners specially affected by alterations in the zoning and therefore entitled to the special protection. This does not necessarily mean that other landowners may not be affected by rezoning but does mean that other landowners, even if affected by the alteration, are not entitled to the special protections provided.
I agree that determining legislative intent may be affected by the rule discussed by the majority but to me they do not justify or support the reasoning or result suggested thereby. In determining the meaning of the statute I would add two additional rules which I believe offer additional support to my belief that a contrary result is required. First, where language in a statute is repeated it is presumed to have the same meaning whenever used unless a different meaning is obviously intended or required. Second, the language of a statute will be given its ordinary common sense meaning particularly where a different meaning could have been readily conveyed by different language.
Standard Oil Co. of Indiana v. Kamradt, 319 Ill. 51, 149 N.E. 538, and Village of Bannockburn v. Lake County, 17 Ill.2d 155, 160 N.E.2d 733, are the principal cases governing the resolution of the issues of this case even though as pointed out in the majority opinion they do not involve the class of persons owning adjoining frontage.
“The term ‘frontage’ unless a special meaning must be given it by reason of language in the particular ordinance, may be defined as the line of demarcation between private property and that open to the general use of the public, such as a street, stream, or park.” The Kamradt case interpreted a county ordinance which required that before gasoline storage tanks could be installed consents of the majority of the owners of frontage within a certain distance from the lot upon which the tanks were to be installed had to be seemed. The specific holding in Kamradt was that a comer lot had frontage on both intersecting streets rather than only one, court relied primarily on cases involving special assessment for street improvements and rejected the view that the comer lot had frontage only on the street which adjacent lots faced. The opinion emphasizes that frontage relates to the lot dimensions abutting streets whether the same be considered front, back or side and there is no intimation interior boundary lines may be considered frontage.
Village of Bannockburn v. Lake County, 17 Ill.2d 155, 160 N.E.2d 773, adopts the definition of frontage from the Kamradt case and holds where the property sought to be altered had frontage on Deerfield Road, owners of property on the opposite side of the road were proper protesters. The court in Bannockburn observed, “This description of the the parcel and the measurements above quoted are not in dispute as between the parties but their difficulty is concerned with a definition of the word ‘frontage’, it being the contention of the defendants that ‘frontage’, as used in the statute, requires protest to be signed by owners of property that in the aggregate own at least twenty percent of the entire perimeter of the property proposed to be altered.” Without much discussion the court held that frontage had a well established common usage and could only refer to the dimension of the property abutting Deerfield Road.
The Bannockburn case establishes the meaning of frontage under that provision of the statute relating to protests by owners of property opposite therefrom, and, I find no language in the statute from which it may be reasonably inferred that the term was intended to have a different meaning when applied to other classes of protesters nor do I believe there is anything in the Section relating to the owners of immediately adjoining frontage which suggests that the term has a meaning different from its usual and customary meaning. If frontage is the linear dimension of the property abutting the street or highway then immediately adjoining frontage is the extension of such dimension along the same street or highway as the frontage dimension of adjacent property. There is no question but that the subject property had a frontage dimension on Cottage Grove Avenue of 2640 feet, that the adjacent tract of property to the north had frontage immediately adjoining that of the subject property of 1220 feet and that to the south the tract belonging to the protester had immediately adjoining frontage of 330 feet. If the owner of the property to the north had protested he would have been within the terms of the statute since the amount of his frontage exceeded twenty percent of the frontage of the tract proposed to be altered. However the frontage of the tract to the south owned by the protester Klecka being only 330 feet is not twenty percent of the frontage of the tract to be altered. If the owner of the property adjacent to the Klecka tract on the south had for example the same frontage on Cottage Grove Avenue as Klecka and had joined with Klecka then the combined total of immediately adjoining frontage would have exceeded 600 feet and would have been more than twenty percent of the frontage to be altered and the three-fourths vote would have been properly invoiced.
There is some intimation in the briefs of the parties that since there can be at most one adjacent or adjoining parcel having frontage on the same common road or highway on each side of the property to be rezoned then if one of such owners protests he has satisfied the requirement because he owns fifty percent of the immediately adjoining frontage. This appears to me to be an improper interpretation of the statute for several reasons. First of all since the adjoining property owner would in every case own at least fifty percent of the adjacent frontage then the requirement of twenty percent would be meaningless. Secondly, this would permit the adjacent property owner to qualify as a protester regardless of the amount of his frontage which could be insignificantly small compared with the frontage of the property to be rezoned. Third, the statute expresses the intention that there should be some substantial minimum frontage in comparison with the frontage proposed to be altered before the special protection provision should be operative. Fourth, if the legislature had intended to afford the special protection to either of the adjacent property owners it could have easily done so by language other than that employed.
In concluding that immediately adjoining frontage refers to the common boundaries between the tract proposed to be altered and the land surrounding it, it is my conclusion that the majority has adopted a meaning for the term “frontage” not justified by the statute, supported by definition or approved by any authorities. The conclusion of the majority proceeds in some measure from what I believe to be an unwarranted construction of a phrase in the statute. The statutory language is “° # * by the owners of twenty percent of the frontage immediately adjoining or across an alley therefrom, * * *”. (Sec. 5 of the Counties Zoning Act, Ill. Rev. Stat. 1969, ch. 34, par. 3158.) To me the phrase “or across an alley therefrom” merely means that if adjoining property is separated from the property to be altered by an alley or adjoining tracts are separated from one another by an alley, the intervention of the alley will not prevent the frontage along the street or highway from being considered immediately adjoining frontage. The reference to the alley permits the frontage to be interrupted by an alley and permits the owners of property on the other side thereof to qualify as protesters under this Section which would not otherwise be the case or would be the case if a street intervened. The inclusion of the phrase does not refer to frontage along the alley since such a meaning would make the Section inapplicable because it would then be governed by that Section referring to property owners opposite the frontage to be altered. Furthermore the provision is equally applicable whether the alley form a boundary of the property to be rezoned or whether it be located at some distance from the subject property, has no connection with the subject properly and be bounded entirely by property owned by others. Thus I believe the meaning of the phrase “across an alley therefrom” is strained and offers no support for the majority’s further conclusion that as a consequence thereof common boundaries are referred to by the term frontage.
In conclusion it seems to me that the legislature has expressed its intention in clear language that frontage in its commonly accepted sense is the criteria upon which depends the determination of whether owners have a sufficient interest affected by the proposed rezoning. If the legislature had intended that the interest to be protected depended on area, common boundary lines, interior lot lines, perimeters or distance, it could have done so. By establishing a required relative interest of twenty percent of the immediately adjoining frontage rather than fifteen percent or five percent the legislature has determined not only that frontage is an appropriate standard but that the interest to be protected must be substantial. Even though the Klecka tract may be significantly affected by the rezoning this does not mean that the intention of the statute either in spirit or letter has been thwarted if Klecka be deemed to have an insufficient amount of adjoining frontage.