Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Chapman v. County of Will

DECEMBER 28, 1972.

WILLIAM A. CHAPMAN ET AL., PLAINTIFFS-APPELLEES,

v.

THE COUNTY OF WILL, DEFENDANT-APPELLANT — (LATONA C. KLECKA ET AL., INTERVENING DEFENDANTS-APPELLANTS.)



APPEAL from the Circuit Court of Will County; the Hon. ROBERT R. BUCHAR, Judge, presiding.

MR. JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:

Rehearing denied January 24, 1973.

This is an appeal from a judgment of the Circuit Court of Will County in an action instituted for declaratory judgment and in which summary judgment was entered by the Circuit Court of Will County as hereinafter indicated. The declaratory judgment action was instituted by the plaintiffs as owners of two adjoining parcels of real estate located within Will County, Illinois. The issue before the court on appeal revolves about the protest provisions contained in Section 5 of the Counties Zoning Act (Ill. Rev. Stat. 1969, ch. 34, par. 3158), which contains the following language:

"In case of written protest against any proposed amendment, signed and acknowledged by the owners of twenty percent of the frontage proposed to be altered, or by the owners of twenty percent of the frontage immediately adjoining or across an alley therefrom, or by the owners of twenty percent of the frontage directly opposite the frontage proposed to be altered, * * * filed with the county clerk, such amendment shall not be passed except by the favorable vote of three-fourths of all the members of the county board."

Plaintiffs in this action are the owners of tracts of land consisting of one tract of approximately 153 acres and another of approximately two acres. The 153 acre tract on the date in question, September 30, 1970, had a zoning classification of District "F" (Farming and Agriculture) under the Will County Zoning Ordinance. Plaintiffs sought to rezone the tracts to a classification which would permit use as a trailer camp and to rezone one and eight-tenths acres thereof to a classification permitting use for trailer sales. After public hearings had been held, the Zoning Board of Appeals recommended to the County Board of Supervisors that both rezonings, or amendments requested, be denied. Before the matter had been considered by the Board, written protests had been filed by several persons purporting to be owners of frontage directly opposite and across the street from plaintiffs' tract and by Latona C. Klecka and by an owner named Most, owners of land immediately adjoining plaintiffs' tract. When the County Board of Supervisors met to consider the matter, the proposal to rezone the larger tract received a vote of 26 in favor and 13 against, while the proposal to rezone the smaller tract received a vote of 27 in favor and 12 against. The chairman of the Board, however, ruled that a favorable vote of three-fourths of all the members of the Board was required and, therefore, that neither amendment had passed.

• 1 Thereafter, plaintiffs filed a suit against Will County in the circuit court of Will County, seeking a declaratory judgment that only a simple majority vote was needed and that the amendments had, therefore, passed. The written protesters were later granted leave to intervene in this action as parties-defendant. It was the theory of the complaint of plaintiffs that a provision of the Will County Zoning Ordinance which required a three-fourths vote in instances where the Zoning Board of Appeals recommended against the zoning amendment was invalid. This contention was proper and consistent with the determination in Traders Development Corp. v. Zoning Board of Appeals, 20 Ill. App.2d 383, 156 N.E.2d 274. Plaintiffs also contended that the protests filed were insufficient to invoke the three-fourths majority vote required by Section 5 of the County Zoning Act of the State of Illinois hereinabove referred to. The trial court entered summary judgment for plaintiffs granting the relief prayed and both the County of Will and the intervening defendants have appealed to this court.

On the basis of our determination of the issues in this cause, we need consider only the question of whether the trial court correctly ruled that the Klecka and Most protests were insufficient to invoke the three-fourths vote requirement of Section 5 of the Counties Zoning Act hereinabove referred to. This necessarily requires construction of the legislative language which provides that a valid and sufficient protest may be made "by the owners of twenty percent of the frontage immediately adjoining" the frontage sought to be altered. So far as we have been able to determine, the specific issue as to land "immediately adjoining" has not been decided in the courts of this State.

The record indicates that plaintiffs' 153 acre tract has a frontage of 2640 feet on Cottage Grove Avenue which runs north and south and extends back from Cottage Grove Avenue to a depth of 2440 feet along its northern boundary and approximately 2190 feet along its southern boundary. Its rear, or eastern, boundary is irregular but covers a width of 2590 feet. To the north, plaintiffs' tract is adjoined for a distance of 1220 feet by a tract which has a frontage of 1220 feet on the avenue. (The owner of this tract apparently filed no protest.) Plaintiffs' tract also extends for an additional 1220 feet along what is the rear, or southern, boundary of a tract of about 100 acres owned by the protester named Most. The Most tract has no frontage on Cottage Grove Avenue but fronts on Burille Road, an east-west road which intersects with Cottage Grove Avenue about 2640 feet north of plaintiffs' tract. On the south, plaintiffs' tract is adjoined by the 39 acre Klecka tract for a distance of 2190 feet along the east-west boundary between the two tracts. The Klecka tract, irregular in shape along its southern boundary, has a frontage of 330 feet on Cottage Grove Avenue and extends back to a depth of 2690 feet along its north and south boundaries. It has a rear eastern boundary line of 825 feet. We note, for reasons which will later be shown, that the small tract plaintiffs seek to rezone for trailer sales is a 200 by 400 foot rectangle situated in the northeast corner of the 153 acre tract and has a frontage of 400 feet on Cottage Grove Avenue. This tract is thus adjoined on the south and east by plaintiffs' own land and on the north by the tract of the owner who filed no protest.

With respect to the proposed rezoning of the larger tract, plaintiffs rely principally on Village of Bannockburn v. Lake County, 17 Ill.2d 155. The Supreme Court in that case, when called upon to construe that part of the language of Section 5 of the Counties Zoning Act which provides for a protest "by the owners of twenty percent of the frontage directly opposite the frontage proposed to be altered," stated as follows: (at page 159)

"The word `frontage' has a common, ordinary meaning and, obviously, that meaning was intended in the statute here under construction. `Frontage' means that part of the parcel sought to be rezoned that gives access frontage on a roadway, alley or other public way. Property that is adjacent and contiguous to a stream, highway or road may be said to have frontage thereon. There is no indication to be found in the statute that any meaning other than the usual and customary meaning of the word was intended. We, thus, must use the definition above set forth, which is certainly commonly accepted."

• 2, 3 Plaintiffs contend that the same meaning must be given to the word "frontage" in this case, and assert that since the protesting owners of adjoining property, Klecka and Most, have only a frontage of 330 feet on Cottage Grove Avenue, a figure considerably less than twenty percent of the frontage proposed to be altered, their protests were insufficient to invoke the requirement that the rezoning had to pass by a three-fourths vote. While this contention may have a superficial appeal, we do not agree that the legislature intended the word "frontage" to be construed or circumscribed so narrowly when it referred to twenty percent of the "frontage immediately adjoining" the property to be rezoned. As pointed out in Standard Oil Co. v. Kamradt, 319 Ill. 51, the word "frontage" is not to be inflexibly construed in all instances, and in our opinion both the language of Section 5 itself and the application of basic principles of statutory construction dictate a conclusion that the adjoining boundaries of the Klecka and Most tracts were "frontage" within the legislative meaning and intent. Construed in such fashion, the Klecka protest in itself was sufficient to require the three-fourths vote.

• 4, 5 "Frontage" is defined in Village of Bannockburn v. Lake County, 17 Ill.2d 155, "means that part of the parcel sought to be rezoned that gives access frontage on a roadway, alley or other public way." (Emphasis added.) Thus, if any alley intervened between the north boundary of the Klecka tract and the south boundary of plaintiffs' tract, it is obvious the foregoing definition of the boundary of the Klecka tract would be "frontage" within the language of Section 5 which refers to the owners of "frontage * * * across an alley therefrom." Statutes must be reasonably construed to the end that they will be applied in a practical and commonplace manner and that absurd consequences will be avoided. (Illinois National Bank v. Chegin, 35 Ill.2d 375; Goldblatt v. City of Chicago, 30 Ill. App.2d 211.) An absurd result would necessarily be produced if we were to say that the legislature intended to distinguish between owners of property immediately adjoining and owners of property across an alley, or that the legislature intended that the owners "across an alley" should have a more effective means of protest than the owners of property "immediately adjoining." We believe it is, therefore, apparent and necessarily follows that the words "frontage immediately adjoining or across an alley therefrom" require a construction that the legislature had reference to frontage created by adjoining property lines or by the parallel lines separated by an alley.

• 6, 7 By another rule of statutory construction the intention of the legislature is to be gathered not only from the language used but also from the reasons for the enactment and the purposes to be attained thereby. (People ex rel. Cason v. Ring, 41 Ill.2d 305; Tidwell v. Smith, 57 Ill. App.2d 271.) Where we apply such rule of construction here, it further fortifies the conclusion which we have expressed. A statute or ordinance permitting "frontage protest" differs from a statute or ordinance requiring "frontage consents," but each have an obvious purpose of according to an owner a means of protecting his property against depreciation in value and exposure to danger and noxious enterprises which could result from a change of use in nearby or adjoining properties. (See: Jennings v. Calumet National Bank, 348 Ill. 108; Standard Oil Co. v. Kamradt, 319 Ill. 51.) Such purpose we conclude is implicit in the provisions of Section 5 which called for more stringent requirements for rezoning when written protests are filed by owners of frontage in the area to be rezoned, by owners of frontage immediately adjoining, or by owners of property directly opposite the frontage proposed to be altered. Of the three classes of owners sought to be given some measure of self-protection, it would appear that it is the adjoining property owners who would be the most affected by a zoning change.

• 8 In the case before us, the Klecka tract adjoins plaintiffs' tract for a distance of 2190 feet, but has a frontage of only 330 feet on Cottage Grove Avenue. While the Most tract adjoins plaintiff's tract for a distance of 1220 feet, it has no frontage whatsoever on Cottage Grove Avenue. Accordingly, if we were to say that the word "frontage" in the phrase "frontage immediately adjoining" has reference only to frontage on the same street upon which the property proposed to be altered has its street frontage, it would clearly defeat the purpose of Section 5 and deny to adjoining owners the protection intended. In our judgment this is an absurd, unreasonable and unjust construction of the phrase of said Section 5 which is at issue in this cause. We conclude that it could not have been intended by the legislature. Where the language of the statute admits of two constructions, one of which would make the enactment absurd, if not mischievous, while the other renders it reasonable and wholesome, the construction which leads to an absurd result will be avoided. (People ex rel. Barrett v. Thillens, 400 Ill. 224.) As we construe the Act, the unjust and absurd result could only be avoided by a construction that, as applied to adjoining owners, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.