dissenting.
This important and much discussed zoning discrimination case was commenced in 1972. It originally involved a claim that the refusal of Arlington Heights to rezone a certain specified tract of land to permit construction of a racially integrated, moderate and low income housing project was racially discriminatory and therefore in violation of plaintiffs’ rights under the Equal Protection Clause of the Fourteenth Amendment and the Fair Housing Act, 42 U.S.C. §§ 3601-3631.
*1016The ensuing procedural course of the matter is set forth in detail, both in the majority opinion and in the opinion of the court below. See Metropolitan Housing Development Corp. v. Village of Arlington Heights, 469 F.Supp. 836, 841-44 (N.D.Ill.1979). I find it troubling, however, that at no time during the last seven years of litigation has this lawsuit involved the particular parcel of property which is suddenly made the subject of the consent decree now approved by a majority of this panel.
I find this especially troubling because the decree has prejudiced the rights of persons not parties to the original litigation, particularly in light of the fact that the original site upon which plaintiffs had hoped to build an integrated housing development was centrally located within the village limits of Arlington Heights, while the new site was, until after entry of the decree below, not in Arlington Heights at all. Rather, it was a tract of land located adjacent to the Village of Mount Prospect in unincorporated Cook County, which, pursuant to the terms of the consent decree, was to be annexed and rezoned to permit development of low and middle income housing and extensive commercial usage.1
In arguing that this court affirm the district court’s approval of the decree, Arlington Heights and the MHDC rely heavily on the strong federal policy, embodied in the Fair Housing Act, which favors and, indeed, mandates the elimination of the. effects of racial discrimination in housing, and further upon the policy which favors settlement of litigation. I do not find these policy arguments persuasive because the method chosen by Arlington Heights to effectuate its ever so recently espoused goal of providing a location for the construction of racially integrated housing has involved the selection of a site as far as possible from the center of Arlington Heights and on the doorstep of a neighboring community. My concern is heightened by the fact that the decision by Arlington Heights to pursue this particular course of action was made in complete derogation of state and local laws governing such procedures. The nature of the goal of open housing is such that it will not likely be achieved
through the imposition upon the community of solutions not of the community’s own design and thus quite likely lacking the community’s support and confidence. The Court cannot force persons to live in the community; the continued or increased presence of any element of the ethnic makeup of a neighborhood, and thus the success of the Act’s goal of supporting integration in the community, will depend largely on the willingness of individuals and groups to live there.
Williamsburg Fair Housing Committee v. New York City Housing Authority, 450 F.Supp. 602, 606 (S.D.N.Y.1978). I query in this instance how the support of those living in the areas adjacent to the project is to be enlisted when they have been denied the right granted to them under state law to participate in the decisionmaking process.
I am therefore of the opinion that many of intervenors’ objections to the. approval of the decree are well taken. I find it unnecessary to address most of the objections at this time, however, because it seems clear to me beyond reasonable disputation that the action of Arlington Heights in entering into the agreement in question was violative of the intervenors’ federal constitutional right to procedural due process.
I therefore think that this case would be properly disposed of by a remand to the district court with directions to vacate the decree and to enjoin the parties from carrying out its terms until such time as intervenors have been afforded proper notice and an opportunity for a hearing, as is provided in the statutes of the state of Illinois. Adherence to these state procedures would, of course, cure any federal constitutional defect.
*1017I.
A. The Requirements of Illinois Law
The Illinois zoning enabling legislation, Ill.Rev.Stat. ch. 24, § 11-13-14, requires a public hearing on amendments to zoning ordinances before a “commission or committee designated by the corporate authorities” and further requires that notice be given of such a hearing not more than thirty nor less than fifteen days before the hearing. The “corporate authority” which was designated by the Village of Arlington Heights in its zoning ordinance was the Plan Commission. Arlington Heights Zoning Regulations, § 19.1. It is undisputed that, despite the fact that the decree will result in comprehensive amendments to the tract’s current zoning classification, no hearing before the Plan Commission was ever held. Further, the notice which was required by the local regulation consisted of published notice to the public and actual notice to nearby landowners. See id. at § 19.2. It is again undisputed that no such notice was ever given. Finally, with respect to the annexation, the Illinois Annexation Agreement Act provides that where, as here, a tract is the subject of a previous annexation agreement, “any public hearing required by law to be held before the adoption of any ordinance amendment provided in such agreement shall be held prior to the execution of the agreement, and all ordinance amendments provided in such agreement shall be enacted according to law.” Ill.Rev.Stat. ch. 24, § 11-15.1-2. This statutory directive has, however, likewise been ignored.
Rather, the decision to enter into the agreement, with its attendant annexation and zoning amendments, was made in a series of closed meetings of the Village Board of Trustees, beginning in March of 1978.2 Subsequently, on June 1 and June 28 of that year, the parties informed the district court that a consent decree had been agreed upon and the matter was continued to June 30 for entry of that decree. On that date, the neighboring Village of Mount Prospect moved to intervene and it was only thereafter, on July 5, that the Board, which was not the proper body to hold zoning hearings, held one open meeting to discuss the settlement. On August 24, the Forest View Civic Association moved to intervene as a defendant.
While the majority opinion apparently approves this instanter repeal of Illinois law for purposes of settling this lengthy litigation, I cannot, because Arlington Heights’ failure to follow established state procedures has likewise deprived intervenors of the notice and opportunity for a hearing mandated by the federal constitution.
B. Intervenors’ Property Interest
“The Fourteenth Amendment places procedural constraints on the actions of government that work a deprivation of interests enjoying the stature of ‘property’ within the meaning of the Due Process Clause.” Memphis Light, Gas & Water Division v. Craft, 436 U.S. 1, 9, 98 S.Ct. 1554, 1560, 56 L.Ed.2d 30 (1978).
The “property” right asserted by the Forest View Civic Association group of intervenors is its interest in ensuring that the property values of its member landowners will not be unnecessarily devalued through closed door rezoning of the neighboring tract from single family to multi-family and commercial classifications. Mount Prospect would appear to have an interest in minimizing any loss of revenues which might result from a depreciation of property values in the area, and an additional concern *1018over increased expenditures which might be required of it in order to handle the increased traffic flow.
Both Mount Prospect and the Forest View Civic Association readily acknowledge that their respective interests would not entitle them unilaterally to block the annexation and rezoning of the tract. They contend, however, that their interests are constitutionally sufficient to require that notice and hearing which is in any event provided for by Illinois law, in order that policy and locational considerations surrounding the contemplated development can be resolved in such a way as to minimize the impact of the proposal.3
The test for what constitutes a property interest, within the meaning of the Due Process Clause, was set forth in Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1971):
To have a property interest . a person must have more than a unilateral expectation . . . . He must, instead, have a legitimate claim of entitlement . . . . It is a purpose of the ancient institution of property to protect those claims upon which people rely in their daily lives, reliance that must not be arbitrarily undermined. It is a purpose of the constitutional right to a hearing to provide an opportunity for a person to vindicate those claims.
Property interests of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.
Id. at 577, 92 S.Ct. at 2709 (emphasis supplied). See Leis v. Flynt, 439 U.S. 438, 99 S.Ct. 698, 700, 58 L.Ed.2d 717 (1979); Memphis Light, Gas & Water Division v. Craft, 436 U.S. 1, 9, 98 S.Ct. 1554, 1560, 56 L.Ed.2d 30 (1978); Board of Curators v. Horowitz, 435 U.S. 78, 82, 98 S.Ct. 948, 951, 55 L.Ed.2d 124 (1978); Bishop v. Wood, 426 U.S. 341, 344, 96 S.Ct. 2074, 2077, 48 L.Ed.2d 684 (1976); Goss v. Lopez, 419 U.S. 565, 572-74, 95 S.Ct. 729, 735-36, 42 L.Ed.2d 725 (1975); Perry v. Sinderman, 408 U.S. 593, 602 n.7, 92 S.Ct. 2694, 2700, 33 L.Ed.2d 570 (1972). An examination of intervenors’ interests under Illinois law leads inevitably to the conclusion that such interests are “property interests.”
First, the courts of Illinois have consistently concluded that adherence to the statutory notice and hearing procedures in zoning matters is jurisdictional to the ability of a municipal body to amend zoning classifications.4 For example, in Kirk v. Village of *1019Hillcrest, 15 Ill.App.3d 415, 417, 304 N.E.2d 452, 454 (1973), an application was filed for rezoning in subdivision 5 of a municipality. The notice, however, due to a clerical error, made reference to “subdivision 6.” Hearings were held in conformity with the application, and rezoning of subdivision 5 was approved. The Illinois Court of Appeals held the rezoning void as to either subdivision 5 or 6, observing that:
[t]he notice is mandatory, jurisdictional, and must correctly describe the subject property, otherwise any attempted amendment will be invalid. . . .Inasmuch as no notice of hearing was ever published, appropriate to the originally requested changes in Subdivision 5, neither the zoning board of appeals nor the defendant has jurisdiction to proceed.
The notice that was published granted the board jurisdiction to proceed with hearings on changes within Subdivision 6. The hearings were not held in accordance with the published notice. The uses in Subdivision 6 remain unchanged.
304 N.E.2d at 454. Accord, Cosmopolitan National Bank of Chicago v. City of Chicago, 27 Ill.2d 578, 583, 190 N.E.2d 352, 355 (1963) (actions taken outside of prescribed procedures are void); North State Astor, Lake Shore Drive Association v. City of Chicago, 131 Ill.App.2d 251, 253, 266 N.E.2d 742, 744 (1970) (“An amendment to a zoning ordinance passed without a public hearing is void.”); Lancaster Development, Ltd. v. Village of River Forest, 84 Ill.App.2d 395, 400, 228 N.E.2d 526, 529 (1967).
Moreover, it is the law in Illinois that adjacent property owners have legally cognizable interests in zoning matters which are, for example, sufficient to entitle them to intervene as of right. Anundson v. City of Chicago, 44 Ill.2d 491, 256 N.E.2d 1 (1970); Bredberg v. City of Wheaton, 24 Ill.2d 612, 182 N.E.2d 742 (1960); Wheeling Trust & Savings Bank v. Village of Mount Prospect, 29 Ill.App.3d 539, 331 N.E.2d 172 (1975); Oakton-Crawford Corp. v. Village of Skokie, 28 Ill.App.2d 507, 171 N.E.2d 814 (1961); accord, Planned Parenthood v. Citizens for Community Action, 558 F.2d 861 (8th Cir. 1977); cf. Nott v. Wolff, 18 Ill.2d 362, 163 N.E.2d 809 (1960) (permissible for adjacent landowner to prosecute an appeal where developer successfully sued city to invalidate zoning ordinance and city failed to appeal). Similarly, with respect to Mount Prospect’s interests, it has generally been recognized in Illinois and elsewhere that municipalities may also have legally cognizable interests in zoning matters which affect tracts contiguous to their borders. See, e. g., Township of River Vale v. Town of Orangetown, 403 F.2d 684, 685 (2d Cir. 1968) (municipality has standing to challenge amendment to zoning ordinance in a municipality across the state line, where an allegation is made that the rezoning will depreciate property values); City of Hickory Hills v. Village of Bridgeview, 67 Ill.2d 399, 10 Ill.Dec. 539, 541, 367 N.E.2d 1305, 1307 (1977) (“From an examination of the authorities ... it would appear that the general rule that ‘an aggrieved person with a real interest in the subject matter of the controversy may challenge a zoning ordinance’ is applicable to municipal corporations.)”; Forestview Homeowners Association, Inc. v. County of Cook, 18 Ill. App.3d 230, 309 N.E.2d 763 (1974) (Village of Northbrook permitted to intervene in zoning litigation involving tract one and one-half miles outside its borders); cf. Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 99 S.Ct. 1601, 1613-14, 60 L.Ed.2d 66 (1979) (Village has standing to bring an action challenging alleged racial steering practices of realtors).
In view of the treatment of interests similar to intervenors’ under state law, it is clear that those interests are property within the meaning of the Due Process Clause.
C. What Process Is Due
Although the district court did not seriously dispute the constitutional sufficiency of intervenors’ property interests, it nevertheless concluded that the hearing on the merits of the decree before the district court itself was all the process that was due. In view of the fact that the district court was not the decisionmaking tribunal *1020in this instance, I fail to comprehend this reasoning. The gravamen of intervenors’ claims is not that the decree was not a fair settlement as between the original parties to the litigation — the issue to be decided by the court — but rather that their own properties were depreciated or revenues decreased by the changes in zoning classifications which were decided upon in an irregular manner by the Village of Arlington Heights. The constitutional infirmity, which was created by the failure of Arlington Heights to accord the intervenors notice and an opportunity for a hearing, is not cured by the fact that the district court later accorded a hearing on the due process claim in the context of approving the consent decree. If such were the case, any claim of a deprivation of procedural due process in some other forum could be immediately remedied simply by the judicial hearing on the merits of the complaint.
As the express language of the district court opinion evidences, the district court did not and, indeed, could not reach a decision on the merits of the annexation and rezoning questions, but instead merely tested the decision of Arlington Heights to do so under a “fair and equitable” standard of review and determined that such measures were an acceptable resolution to the claims of discrimination made by the plaintiffs at the outset of this case. While the zoning and annexation may well be “fair and equitable,” both as a means of settling this litigation and in the abstract, this does not cure the fact that the decision of Arlington Heights was made in a manner which was unlawful under the statutes of Illinois and which rode roughshod over intervenors’ constitutional rights.
Neither do I find the majority opinion’s reliance on Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) persuasive. In that case, the Supreme Court articulated three factors which must be weighed and considered in determining “what process is due,” Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed,2d 484 (1972), in any given circumstance: (1) the private interest affected by the governmental action; (2) the risk of an erroneous deprivation through the procedure used; and (3) the governmental interests, including the fiscal and administrative burdens that the additional procedures would entail.
Where, however, as here, it is undisputed that the challenged government actions were taken without even minimal notice and hearing procedures, see Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950), it is simply unnecessary to engage in a Mathews analysis.
I would further respectfully submit that in the interests of federalism, where a procedural due process controversy relates to a local matter and adherence to state statutory procedures would cure the' constitutional defect, a federal court should simply require that those state procedures be followed rather than engaging in its own mentations as to what a “fair and equitable” result of the never-held hearings might have been.
Further, Arlington Heights and the MHDC contend that even if intervenors were entitled to a notice and hearing under our Constitution, the holding of additional hearings at this juncture would be little more than a “sham” or a “mere formality,” which would have no effect on the ultimate result. This argument, reduced to its essence, is that it is immaterial that intervenors were denied that degree of due process mandated by the United States Constitution and the laws of the State of Illinois, because Arlington Heights has, in any event, already made up its mind. I regard this as untenable.
The decision of Arlington Heights after hearings before the proper body might well be modified or even abandoned as a consequence of an accommodation to the land use, policy, and locational concerns of the intervenors. Secondly, this court should not assume that the proper decisionmaking bodies in Arlington Heights will be unable to function objectively in the future. An analogous situation was presented in Hortonville Joint School District No. 1 v. Hortonville Educational Association, 426 U.S. 482, 96 S.Ct. 2308, 49 L.Ed.2d 1 (1976). *1021There the Supreme Court was confronted with the claims of teachers who, after a breakdown in collective bargaining negotiations, had gone on strike in violation of state law and subsequently been discharged by the Board of Education. The teachers alleged that the Board was not an impartial decisionmaking body, and that their rights to procedural due process had therefore been violated. The Court disagreed, noting, “[a] showing that the Board was ‘involved’ in the events preceding this decision . is not enough to overcome the presumption of honesty and integrity in policymakers with decisionmaking power.” Id. at 496-97, 96 S.Ct. at 2316.
Finally, this “fait accompli” line of reasoning does not acknowledge what I had heretofore thought was a well established constitutional principle, specifically that “the right to procedural due process is ‘absolute’ in the sense that it does not depend upon the merits of a claimant’s substantive assertions . . . because of the importance to organized society that procedural due process be observed.” Carey v. Piphus, 435 U.S. 247, 266, 98 S.Ct. 1042, 1054, 55 L.Ed.2d 252 (1978).
Procedural due process is said to serve three interests:
First, due process assures that governmental decisions affecting individuals are made correctly and efficiently (the efficiency interest). Second, it permits the person affected by a decision to argue before the relevant body about the substantive rules that are to be applied and how they should be interpreted in the particular instance (the representational interest). Third, and last, it protects individual dignity by requiring that the government explain its actions to those directly affected (the dignity interest).
Developments in the Law —Zoning, 91 Harv.L.Rev. 1427, 1505 (1978). All three would be served by according intervenors that degree of constitutional protection to which they are entitled.
Because the intervenors were not accorded notice and an opportunity for a hearing, I respectfully dissent.
. Because the intervenors did not seek a stay of the decree pending appeal, and because the decree provided for annexation of the property within sixty days of the entry of the decree, the annexation has already been accomplished. This annexation may, however, be void due to the failure of Arlington Heights to comply with Illinois law. See discussion infra.
. While there would appear to be no impropriety in holding closed meetings for the purpose of discussing a possible settlement of pending litigation, the closed discussions went beyond the fact of settlement and encompassed matters which, as noted above, are required to be the subject of public hearings. This procedure contravened not only the relevant zoning legislation, but also the public policy of Illinois, as expressed in the Illinois Open Meeting Act:
It is the public policy of this State that the public commissions, committees, boards and councils, and other public agencies within this State exist to aid in the conduct of the peoples’ business. It is the intent of this Act that their actions be taken openly and that their deliberations be conducted openly.
Ill.Rev.Stat. ch. 102, § 41.
. The district court discussed at great length the question of whether due process guarantees attach at all to zoning procedures, or whether such procedures are “legislative” and therefore beyond the reach of the due process clause a theory advanced in a recent student project, Developments in the Law — Zoning, 91 Harv.L. Rev. 1427 (1978). While the district court ultimately concluded that due process guarantees were applicable, I must take issue with the notion that “legislative” as opposed to “administrative” zoning decisions do not trigger due process protections in one form or another. The rationale expressed for this theory by both the district court and the Harvard article is that to accord due process to everyone affected by the legislative process would be so cumbersome as to make government unworkable. Although this justification has some facial appeal, the Constitution makes no such talismanic distinction. I would only observe that courts are not generally called upon to adjudicate the constitutional sufficiency of legislative proceedings because the legislative process is in itself a form of due process. While obviously each citizen potentially affected by legislation cannot participate in the actual decisionmaking process, his or her elected representative may do so. See also L. Tribe, American Constitutional Law § 18-3 (1978) (discussing a trend in Supreme Court cases toward greater scrutiny of the legislative process in that the Court now seems unwilling to credit or manufacture bases for legislation that are not currently articulated by the body promulgating the challenged statute or rule, and analyzing the concept of legislative due process). In any event, we need not resolve the controversy here as the parties do not seriously dispute that due process guarantees had at least some applicability to this governmental act.
. This point would also appear to be significant to another issue raised by Mount Prospect, specifically, whether the attempt by Arlington Heights to approve the decree was void.