Posted by: Patricia Salkin | January 8, 2010

Due Process Requires More Than Newspaper Notice of Zoning Change Where Addresses Are Readily Ascertainable

The Illinois Supreme Court held that due process requires more than newspaper notice of a zoning change.  In 1996, the City of Zion began the process of amending its zoning ordinance that eventually affected 85 parcels of land changing the zoning from R2 multifamily to R8 residential.  In 2001, when the Plaintiffs submitted an application to develop their parcel with multi-family housing units, they were surprised to find out that they were denied based upon a change in zoning to which they had not received any notice in the mail or by any other delivery method and that they had been regularly receiving tax bills in the mail at their address on file with the city. They claimed that city’s comprehensive zoning amendment that prevents them from building multi-family housing units is void for violation of due process in that notice of the amendment was merely published in local newspapers, that being all that was required by state statute.  The Court held that although it is true that statute statute just requires newspaper publication, that does not comply with constitutional mandates.  The Court stated that “(T)he Mullane [US 1950] Court held that notice by publication is not sufficient with respect to an individual whose name and address are known and easily ascertainable.”  The Court noted, “Here, under all of the circumstances, we do not believe that service was reasonably calculated to inform the plaintiffs of the pendency of the zoning meeting. The City has never rebutted the general assertion that the plaintiffs’ address could have been easily ascertained and they could have been easily informed. Tax assessments had been sent to the plaintiffs, as beneficiaries of a land trust, since 1973. Instead of taking advantage of tax records, the City provided notice only with four-inch by four-inch notices published at page 10 of the Bargaineer and page 27 of the Zion-Benton News.” The city could have perused county records and then mailed notice to the record owners of the 85 properties involved. 

Passalino v. City of Zion 2009 WL 4843389 (Ill. 12/17/09)

The opinion can be accessed at: http://www.state.il.us/court/OPINIONS/SupremeCourt/2009/December/107429.pdf


Responses

  1. In Colorado, the 10th Circuit has ruled that they don’t need any zoning change at all that local governments can just decide to selectively enforce the development code.

    In my lawsuits, the 10th Circuit ratified these statements from Magistrate Schlatter’s report “the alleged failures by the officials to enforce the zoning codes in regard to take legal actions against the Bennetts…For example, plaintiffs allege that the ….code enforcement officer…failure to perform job function of code inspection…. The city and county defendants have raised the defense of qualified immunity …. plaintiffs have asserted no facts that would rebut those defenses by these defendants”


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