dissenting:
Today’s modifications remedy one glaring error in the court’s original opinion. As I pointed out in my initial dissent, the court had overlooked the fact that plaintiffs were land trust beneficiaries, not the property’s actual owners of record. This fact is now reflected in the court’s opinion. However, the legal basis for requiring the City to provide actual notice remains as much a mystery to me today as it did when I filed my original dissent, the central point of which was that plaintiffs’ interest in the subject property did not require the City of Zion to provide actual notice of its rezoning efforts. See 237 Ill. 2d at 130 (Freeman, J., dissenting, joined by Burke, J.).
Like its predecessor, the modified opinion raises more questions than it answers and leaves unaddressed the questions that I had with the court’s initial decision: What is it about plaintiffs’ property interest that requires actual notice to them as opposed to constructive notice? What, exactly, is the rule of today’s decision? I additionally question the court’s use of “map amendment,” a phrase that it has inserted at various points in its modified opinion. If this is an attempt at clarification, what, exactly, is its legal significance? Zoning amendments are governed under section 11 — 13—14 of the Illinois Municipal Code (65 ILCS 5/11 — 13—14 (West 1996)); however, today’s opinion cites to, and addresses the constitutionality of, section 11 — 13—2 (65 ILCS 5/11— 13 — 2 (West 1996)). So, which section of the Municipal Code is affected by today’s decision? In short, other than correcting the error regarding plaintiffs’ status as land trust beneficiaries, today’s modifications do not address any of the legal concerns raised by the City in calling for rehearing. For those reasons, as more fully explained below, I again respectfully dissent.
Nature of the Interests Involved Identifying plaintiffs’ interests in the subject property calls for taking into account several facts which remain omitted from today’s opinion even as modified. This case involves vacant parcels that had been rezoned by the City in 1971. This rezoning was at the request of the property owner at the time, who had received the City’s approval to construct 142 multiple-family units. Construction never began. Discussions were had in 1972 to sell the property to plaintiffs. At the time, plaintiffs believed that any development would require extension of a sewer line, which they knew that the City had planned to undertake, so they fronted the previous owner $35,000 to pay for the extension. Later, in November 1972, plaintiffs fronted an additional $10,000 for sewer connections for all 142 planned, multifamily units. On that same date, plaintiffs acquired the property as beneficiaries of a land trust. Zion State Bank and Trust Company held the property as trustee under Trust Number 498.5
The City did extend the sewer line and, from 1973 through 1974, plaintiffs constructed 8 single-family homes and 48 multifamily units. By 1978, plaintiffs had sold all the developed property. To date, plaintiffs’ remaining property that had been approved for multifamily residences remains undeveloped, and the property has remained held in trust.
In 1996, the City undertook a comprehensive rezoning effort, and a zoning commission was appointed. After public hearings, the city council passed an ordinance that amended, among other things, section 102 of the City of Zion Municipal Code. Specifically, the ordinance repealed the City’s then-current zoning map and incorporated an entirely new zoning map of the City in the City’s Municipal Code. The new ordinance affected some 85 parcels, including the subject property, rezoning them from a multifamily residential classification to a single-family residential classification.
Initial consideration must be given to plaintiffs’ status as land trust beneficiaries. The Illinois land trust is “a unique creation of the Illinois bar,” which over the years has “served as a useful vehicle in real estate transactions for maintaining secrecy of ownership and allowing ease of transfer.” People v. Chicago Title & Trust Co., 75 Ill. 2d 479, 487 (1979). Generally, once property is placed in a land trust, the owner’s interest in the real property changes to a personal property interest in the trust. Chicago Title & Trust, 75 Ill. 2d at 488. Legal and equitable title of the property rests with the trustee, including the right to transfer and encumber the property. Chicago Title & Trust, 75 Ill. 2d at 488. The central feature of the trust is that the beneficiary does not appear as an owner of record, and the trustee must keep beneficiary names confidential. Real Property Service, Illinois, Land Trusts §31:72 (1989). The trust beneficiaries retain other ownership rights such as the right of possession and the right of the use and enjoyment of the property. Trustee responsibilities typically include forwarding bills for taxes or assessments to trust beneficiaries (Real Property Service, Illinois, Land Trusts §31:58 (1989)), who are responsible for payment (Chicago Title & Trust, 75 Ill. 2d at 493-94). Thus, any actual notice sent in this case with respect to the subject property had to be given to the trustee, who has a fiduciary duty to forward it to plaintiffs.
Certainly, zoning changes impact the use of the property (how and for what use the property can be improved) (City of Loves Park v. Woodward Governor Co., 14 Ill. 2d 623, 625 (1958)), and plaintiffs, as land trust beneficiaries, would be “persons interested” in the hearings (65 ILCS 5/11 — 13—2 (West 1996)). Presumably, the land trust agreement between plaintiffs and the land trustee set out the methods by which the trustee would notify plaintiffs of legal notices applicable to their property. Plaintiffs’ status as land trust beneficiaries does not change the question raised in this appeal: What type of notice of Zion’s rezoning efforts, actual or constructive, is required for purposes of due process?
Reasonable notice depends on a balance between the state’s interest and the individual interest sought to be protected by the fourteenth amendment. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 94 L. Ed. 865, 873, 70 S. Ct. 652, 657 (1950). The United States Supreme Court has held that, with respect to zoning cases, the procedures due to landowners are minimal. City of Eastlake v. Forest City Enterprises, Inc., 426 U.S. 668, 49 L. Ed. 2d 132, 96 S. Ct. 2358 (1976). That is so because, generally, a landowner’s right to use of the property does not include the right to the continuation of an existing zoning classification. Pioneer Trust & Savings Bank v. County of Cook, 71 Ill. 2d 510, 517 (1978). More pointedly, the Seventh Circuit has explained, “[z]oning classifications are not the measure of the property interest but are legal restrictions on the use of property” (emphasis omitted and added) (River Park, Inc. v. City of Highland Park, 23 F.3d 164, 166 (7th Cir. 1994)), and property owners do not have a due process interest in one property classification over another.
An exception to this rule occurs “ ‘[w]here there has been a substantial change of position, expenditures or incurrence of obligations made in good faith by an innocent party under a building permit or in reliance upon the probability of its issuance.’ ” 1350 Lake Shore Associates v. Healey, 223 Ill. 2d 607, 615 (2006) (quoting People ex rel. Skokie Town House Builders, Inc. v. Village of Morton Grove, 16 Ill. 2d 183, 191 (1959), and citing Fifteen Fifty North State Building Corp. v. City of Chicago, 15 Ill. 2d 408, 416 (1958)). In such cases, the landowner has a vested right in the former zoning classification and will be allowed to complete the construction and use the property for the purpose originally authorized irrespective of the subsequent reclassification.
These principles present a significant hurdle for plaintiffs in this case. The subject property has remained unimproved since plaintiffs built their initial 48 multiple-family residences in 1974. Plaintiffs have not alleged that they have received building permits or had even applied for them to come within the vested-rights exception. So what is the basis for the court’s acceptance of plaintiffs’ argument that they were entitled to more than publication notice? Again, zoning classifications legally restrict the use of the property; they are not, in and of themselves, property interests. Plaintiffs are not entitled to a continuation of any particular zoning classification. Absent such an entitlement, plaintiffs have nothing to balance against the City’s considerable interest in zoning classification, and constructive notice is sufficient to protect plaintiffs’ due process rights.
The court does not address any of these concerns, but rather simply concludes that plaintiffs have a “property interest, which is affected by the zoning map amendment” (237 Ill. 2d at 124). The cases cited, however, hardly support the conclusion that actual notice is required here. For example, Chicago Title & Trust Co. v. Village of Palatine, 22 Ill. App. 2d 264 (1959), stands for the unremarkable proposition that the public must be given notice of proposed comprehensive zoning plans. That happened here, of course. Nasierowski Brothers Investment Co. v. City of Sterling Heights, 949 F.2d 890 (6th Cir. 1991), and Harris v. County of Riverside, 904 F.2d 497 (9th Cir. 1990), simply hold that once published notice is given of a zoning change, new notice must be given if the property is rezoned to a different classification. Such a situation did not occur in this case.
Only American Oil Corp. v. City of Chicago, 29 Ill. App. 3d 988 (1975), seems helpful. There, the appellate court held that, because a property owner had “legally protected interests,” actual notice of a proposed zoning change was constitutionally required. But this was because the City had, prior to the change, issued the owner building permits for buildings to be erected on the property. American Oil, 29 Ill. App. 3d at 990. The zoning change rendered the resulting gas station a nonconforming use and diminished the property’s value. American Oil, 29 Ill. App. 3d at 990-91. American Oil simply reinforces the notion that courts will protect the interests of property owners in zoning disputes when vested rights in a particular classification are in play. I take no issue with that. As explained above, however, plaintiffs have not asserted any vested right in the prior classification, a fact which the majority itself notes in its opinion. 237 Ill. 2d at 123 n.l.6
More helpful in addressing the concerns raised in this case is Braden v. Much, 403 Ill. 507 (1949). The case involved a rezoning amendment to change an apartment house district to a specialty shop district.* 7 Notice by publication was made in the Chicago Journal of Commerce of the public hearing. In upholding the ordinance against the plaintiffs’ due process challenge, this court stated that it made no difference that the parties “did not read the particular newspaper in which the notice was given. The Chicago Journal of Commerce is a newspaper published within the municipality and the requirements of the statute were complied with by the publication in that newspaper.” Braden, 403 Ill. at 514. Parenthetically, the court acknowledged the custom of some municipalities, including Chicago, to give actual notice in addition to the requisite publication notice. Although the parties disputed whether such actual notice had been given, the court affirmed the trial court’s ruling, holding that the custom “was complied with”; however, this court gave no indication that, had it not, publication notice of the zoning amendment in the Chicago Journal of Commerce would not have been sufficient. Braden, 403 Ill. at 514.
Additionally, the court in Braden noted that, at the time the plaintiffs bought their property, it was zoned for residential and apartment purposes, and the plaintiffs had reason to rely upon the rule of the law that the classification would not be changed “unless for the public good.” Braden, 403 Ill. at 517. The public good, however, had been established by virtue of the fact that the city council acted on evidence that the rezoning brought the property to its highest and best use — the very goal of the police power to zone. Braden, 403 Ill. at 516. This reinforces the notion that zoning is a restriction on the use of the property, not on an individual property interest. In other words, the court in Braden did not regard the plaintiffs as having a property interest in the former zoning classification. This stands in contrast to the conclusion reached today by the court that plaintiffs’ entitlement to actual notice arose “out of plaintiffs’ property interest, which is affected by the zoning map amendment.” 237 Ill. 2d at 124. Also significant is the fact that Braden involved only a small rezoning effort, in contrast to the comprehensive plan at issue here. If notice by publication suffices where only a known handful of people are affected by an amendment sought by neighbors as in Braden, why would it not suffice in the context of citywide rezoning efforts affecting the entire population? Finally, Braden teaches that the importance of the newspaper is irrelevant.
This leads me to comment on the particular publication in this case. In its petition for rehearing, the City notes that the court here “went out of its way to draw attention to” the fact that notices were published “ ‘underneath an advertisement for Oneida Bingo Casino’ ” and “ ‘underneath a scuba diving advertisement.’ ” The City also noted that the court had also characterized the Bargaineer, one of the newspapers in which the notice was published, as a “ ‘free community newspaper.’ ” The City argues that these comments suggest that the type of newspaper, along with the advertisement’s placement, played a role in the court’s analysis. The modified opinion does not address that concern. Of course, as the City points out, in smaller communities, a free advertising newspaper may be the only one published in the municipality and it might be assumed that such papers are scoured over by local residents, though this would be entirely speculative. Moreover, the City would have no control over the content of the paper surrounding the text of the notice.
Mullane v. Central Hanover Bank & Trust Co.
The court says that this case calls for a “textbook application” of the analysis in Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 94 L. Ed. 865, 70 S. Ct. 652 (1950). See 237 Ill. 2d at 126. In Mullane, the Supreme Court held that a state must provide “notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them opportunity to present their objections.” Mullane, 339 U.S. at 314, 94 L. Ed. at 873, 70 S. Ct. at 657. The proceeding there was an action to settle the accounts of a common trust fund among all the trust’s members. The Court held that the known beneficiaries were entitled to actual notice as opposed to notice by publication. The Court emphasized that notice will pass due process muster when “the practicalities and peculiarities of the case *** are reasonably met.” Mullane, 339 U.S. at 314-15, 94 L. Ed. at 873, 70 S. Ct. at 657. The focus is on the “reasonableness” of the means chosen by the state. Mullane, 339 U.S. at 315, 94 L. Ed. at 874, 70 S. Ct. at 657. Reasonableness is measured on the outcome of the balance between the “interest of the State” and the “individual interest sought to be protected by the Fourteenth Amendment.” Mullane, 339 U.S. at 314, 94 L. Ed. at 873, 70 S. Ct. at 657.
Left unacknowledged in either the court’s original or modified opinion is the significant difference between the judicial action in Mullane to finally settle the monetary accounts in a common trust and a municipality’s legislative action, involved here, to amend its comprehensive zoning plan. Even absent this difference, the City, as I have already noted, has the countervailing interest in this case, not plaintiffs. The purpose of zoning, as expressed in the Municipal Code, is to limit the rights of citizens to use their properties in order to promote and protect the public health, safety, comfort, morals and welfare of the people. See Napleton v. Village of Hinsdale, 229 Ill. 2d 296 (2008); see also River Park, Inc., 23 F.3d at 166. It is against these vital interests that we must weigh plaintiffs’ interests. Given that plaintiffs’ legally protected interests do not include the right to a continued zoning classification, constructive notice is reasonable. Indeed, “courts generally hold that due process does not require personal notice to landowners or adjacent property owners, but that notice by publication, that is usually required by statute is sufficient to satisfy the ‘reasonably calculated to apprise’ due process standard for notice.” 1 E. Ziegler, Rathkopf’s Law of Zoning & Planning §12:5, at 12-18 (4th ed. 2009), citing Mullane, 339 U.S. at 315, 94 L. Ed. at 874, 70 S. Ct. at 657.
For some 20 years, the subject property here remained unimproved, with no building permits issued or pending. Mullane simply does not explain why any local governmental entity, like the City, should be made to expend time, effort, and, most importantly, taxpayer expense to give any notice other than by publication to plaintiffs like these in order to effect a zoning change. In my original dissent, I noted that the court believed that the City could have made reasonable efforts to contact plaintiffs and the other owners of record of the affected parcels by “ ‘perns [ing] the records of the Lake County collector and then mail notice to the [owners] of the 85 properties affected.’ ” 237 Ill. 2d at 137 (Freeman, J., dissenting, joined by Burke, J.). Left unclear was what the court meant by “perus[ing]’’ the records. In modifying its opinion, the court today curiously replaces “peruse” with “review.” This revision does nothing to clear up one of the original questions left unanswered from the court’s initial opinion — What exactly is the scope of the inquiry that the court is requiring a municipality to undertake in such cases? Does the court mean “review” to require a title search or a property tax search on each of the affected parcels, similar, if not identical, to the type of notice required for special uses or zoning variations sought by individual property owners? See 65 ILCS 5/11 — 13—1 (West 1996) (requiring “written notice, either in person or by registered mail, return receipt requested, on the owners, as recorded in the office of the recorder of deeds or the registrar of titles of the county in which the property is located and as appears from the authentic tax records of such county”). Such a burden would be entirely unreasonable given that the right to the use of property does not include the right to a continued zoning classification.
The Rule of Today’s Case
I also took issue, in my initial dissent, with the court’s attempt to limit its holding to the facts of the case. 237 Ill. 2d at 128-29. However, the effect of its holding is not as easily limited as the court apparently had hoped it would be. Had it been so, the response to the court’s original opinion would have been much different. Not only did this court receive a petition for rehearing from the City, but, in an unusual move, it also received a motion, filed jointly by some 11 municipalities from around the state, for leave to file a brief amicus curiae, in support of the City’s petition for rehearing. The court, unwilling to hear from the very municipalities affected by its opinion, denied leave on January 19, 2010. The court likewise today denies the City’s request for rehearing, but, in so doing, attempts to further limit its original holding.
Ostensibly, the court limits the reach of today’s decision to the “type of zoning amendment at issue.” 237 Ill. 2d at 126. I am not sure what the court means by this. Perhaps the court is suggesting, by using “amendment,” that the City’s rezoning effort was of limited application, so providing actual notice was a matter of little moment. If so, the record belies such an implication. In fact, the record reveals the City undertook a comprehensive rezoning of the entire City, not just an amendment intended only to affect a limited area of the City. Amendments of zoning ordinances are governed by section 11 — 13—14 of the Municipal Code (65 ILCS 5/11 — 13—14 (West 1996)). An amendment to a zoning ordinance changes or alters the original ordinance or some of its provisions. Jones v. City of Carbondale, 217 Ill. App. 3d 85 (1991). A zoning amendment under section 11 — 13—14 “consists of either a change in the text of the ordinance or an alteration of the official zoning map.” S. Connor, Zoning, in II Illinois Municipal Law Series — Annexation, Zoning & Regulatory Authority §2.19 (Ill. Inst, for Cont. Legal Educ. 2006). What occurred in 1996 does not appear to be a mere alteration of the zoning map. Rather, the City sought to enact a new ordinance affecting the entire City. The ordinance states that it is a “comprehensive amendment” that, among other things, “repealfs] the current zoning map of the City and incorporate[s] into the Zion Zoning Ordinance a new zoning map.” In addition to the zoning reclassification at issue in this case, the ordinance also designated land as public parks and open space and reclassified property in various business districts.
The ordinance cites specifically to section 11 — 13—2 of the Municipal Code, which provides the procedure to be followed when a municipality desires to invoke the power given to it by the legislature to create an ordinance or “to adopt a new ordinance.” 65 ILCS 5/11 — 13—2 (West 1996).That procedure calls for, among other things, the appointment of a zoning commission to “recommend the boundaries of districts and appropriate regulations to be enforced.” 65 ILCS 5/11 — 13—2 (West 1996). The ordinance at issue states that such a zoning commission was appointed and did, in fact, make recommendations to the City’s mayor and commissioners, as required by section 11 — 13—2. In contrast, section 11 — 13—14, which governs zoning amendments, does not require the appointment of a zoning commission. The court’s use of “map amendment” therefore seems inconsistent with the section of the Municipal Code, section 11 — 13—2, that is purportedly the subject of this opinion. In any event, this confusion in terminology alone underscores the necessity for rehearing in this case.
I further note that although this case specifically addresses ordinances under the Municipal Code, similar statutes with almost identical language concerning notice by publication are contained in the Counties Code. See 55 ILCS 5/5 — 12007, 5 — 12014 (West 1996). Today’s opinion necessarily affects cases brought under that Code as well. This reinforces my belief that the court’s opinion will have a much broader impact than it intends, despite its attempt to limit its holding to only the specific facts of this case and the “type of zoning amendment” involved. Can the court really mean that today’s holding is limited only to zoning map amendment cases reclassifying multiresidential zones to single-family zones where the case involves beneficial interest holders in land trusts who have fronted money to local governmental entities to extend sewer connections?
One other aspect of today’s modifications merits comment. The court states that, “[i]n accordance with familiar constitutional principles, [it] conclude[s] that [section 11 — 13—2] is unconstitutional as applied to the facts and the type of zoning amendment at issue in this case.” 237 Ill. 2d at 126. At the conclusion of its opinion, however, the court states that its “holding also does not affect the continuing validity of the use of publication notice under section 11 — 13—2 of the Municipal Code.” 237 Ill. 2d at 130. The court is fooling itself if it thinks that the continuing validity of section 11 — 13—2 will not be a matter of question after today. Given that the court has not explained what it is about these plaintiffs’ property interests that required actual notice, it will be difficult for local governmental entities to know when publication notice under the statute will suffice and when it will not.
Accordingly, I remain convinced, as I was in my initial dissent, that constructive notice in zoning cases will, after today, never be deemed reasonable for purposes of procedural due process. Despite the court’s superficial attempts to limit the decision’s reach, the opinion reads more like a facial ruling to the constitutionality of section 11 — 13—2 rather than an as-applied ruling. There is nothing about these plaintiffs that would be any different from any other landowner interested in zoning proceedings, particularly when those landowners, like plaintiffs here, do not reside within the municipality.8 Moreover, in this case, the zoning change was comprehensive and involved the entire City. The court makes no effort to explain what the guideposts are for decisionmaking regarding reasonable notice in such situations. Is it a matter of how easy it is to locate those who are affected by the zoning change? Where will this information come from and what is the scope of a reasonable investigation in these circumstances?
I note that the court also states that 85 parcels were affected in this case, implying that the number of affected parcels is also relevant. 237 Ill. 2d at 128. At what number of affected parcels would actual notice become unreasonable? Would 100 parcels be too burdensome for a city, or just this city? The court further alludes to the cost of the mailing. 237 Ill. 2d at 128. At what point does the cost become unreasonable? In denying rehearing, the court has missed the opportunity to provide answers to these questions and, as a result, municipalities and counties will never be certain when constructive notice, all the statutes require, will be sufficient to satisfy due process. While procedural due process cases are unsuitable by their nature for precise formulae to balance interests (see Mullane, 339 U.S. at 314, 94 L. Ed. at 873, 70 S. Ct. at 657), in light of the imprecise nature of the property interest deemed by the court to require actual notice to satisfy due process, the number of parcels affected and the cost, in my view, would seem irrelevant to the balancing of interests under the court’s analysis.
While I agree that plaintiffs were entitled to notice and the opportunity to be heard on the issue of the City’s comprehensive zoning plan, I do not agree that the constructive notice given by the City was constitutionally deficient. I therefore continue to strongly dissent from the court’s ultimate resolution of this case and would grant the City’s petition for rehearing.
JUSTICES CARMAN and BURKE join in this dissent.
The tax documents included in the record reveal this to be the case. Plaintiffs’ names and address do not appear on those records. The documents indicate the name of the trustee, Chicago Title and Trust Company, and the company’s Chicago address.
American Oil is distinguishable on another ground as well. There the zoning amendment at issue concerned only the subject property. In contrast, plaintiffs’ land was not the only parcel affected by the City’s comprehensive rezoning effort.
In Braden, the plaintiffs purchased the subject property in 1923. In January 1946, an amendatory ordinance was introduced to the Chicago City Council, upon a petition signed by neighboring property owners, seeking a change in the district’s classification. The matter was referred by the City Council to its committee on building and zoning. After a public hearing, the committee recommended the amendatory ordinance for passage by the City Council, which ultimately enacted the ordinance in March 1946.
Seetion 11 — 13—2 requires that the notice be published within a newspaper “published in the municipality.” 65 ILCS 5/11 — 13—2 (West 1996). The municipality in question here is Zion and thus the papers used were Zion newspapers. Plaintiffs reside in Lake Forest.