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Chapman v. County of Will

OPINION FILED NOVEMBER 20, 1973.

WILLIAM A. CHAPMAN ET AL., APPELLANTS,

v.

THE COUNTY OF WILL ET AL., APPELLEES.



APPEAL from the Appellate Court for the Third District; heard in that court on appeal from the Circuit Court of Will County; the Hon. ROBERT R. BUCHAR, Judge, presiding.

MR. JUSTICE KLUCZYNSKI DELIVERED THE OPINION OF THE COURT:

Plaintiffs, South Holland Trust and Savings Bank, as trustee of certain real estate, and William and Herman Chapman, as sole owners of the beneficial interest of the trust, filed a declaratory judgment action in the circuit court of Will County seeking to set aside a decision of the Will County board of supervisors which denied a change in zoning classification. While the reclassification was approved by a majority of the board members, it failed to gain a three-fourths approval as would be required by section 5 of the County Zoning Act, if applicable (Ill. Rev. Stat. 1971, ch. 34, par. 3158), and it was therefore denied. The circuit court granted summary judgment for plaintiffs, holding that the zoning amendment should have been ordered properly adopted because it required only a majority vote for confirmation. Several counts in which plaintiffs raised other contentions were dismissed on the court's own motion without prejudice and with leave to reinstate. The appellate court reversed, one justice dissenting (Chapman v. County of Will, 8 Ill. App.3d 1007), and we granted leave to appeal. The fundamental issue presented is whether plaintiffs' zoning request required the extraordinary three-fourths majority approval.

In pertinent part section 5 of the County Zoning Act reads as follows:

"* * * 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 * * * such amendment shall not be passed except by the favorable vote of three-fourths of all the members of the County Board."

For purposes of this appeal we need only consider two categories of those who are statutorily empowered by section 5 to protest rezoning. These are the "owners of twenty percent of the frontage immediately adjoining or across an alley therefrom" and "owners of twenty percent of the frontage directly opposite the frontage proposed to be altered."

Plaintiffs' property comprises about 155 acres and was zoned for agricultural use. They sought to change the classification to permit the vast part of their land to be used for a trailer park. A smaller section consisting of approximately 2 acres, which was located in the north-western corner of the property, was to be used for the display and sale of mobile homes. After examination of this property's description contained in the parties' briefs filed herein, and the appellate court opinion, we find the following description is sufficient for determination of the issues presented. The western boundary of plaintiffs' property is located on Cottage Grove Avenue and extends for a distance of 2640 feet. The northern border is 2440 feet. The eastern and southern boundaries are irregularly shaped but are the same total length as the boundaries directly opposite.

During the course of the administrative proceedings prior to institution of this action various written protests were filed seeking to prevent rezoning of the property. The first group of protestors own land adjoining plaintiffs' property. They sought to bring themselves within the provision of the statute which requires three-fourths approval of County Board members if there are protests "by the owners of twenty percent of the frontage immediately adjoining or across an alley therefrom." The Klecka tract is located at plaintiffs' southern boundary. Its western border is contiguous with Cottage Grove Avenue for a distance of 330 feet. Its northern boundary is coterminous with plaintiffs' land for a distance of 2190 feet. The Most tract is located to the northeast of plaintiffs' property and borders it for 1220 feet in length. However, there is no direct access to Cottage Grove Avenue from this land. The remainder of plaintiffs' northern boundary (1220 feet) adjoins a tract of land which borders Cottage Grove Avenue for a distance of approximately 1320 feet. No protest was advanced by any owner of this property.

The second group of protestors consisted of purported "owners" of five separate parcels of land located directly across Cottage Grove Avenue from plaintiffs' property. It is undisputed that this property consists of "frontage directly opposite the frontage proposed to be altered" within the meaning of section 5 and that their combined frontage barely exceeds the twenty-percent requirement of section 5. Plaintiffs contested the validity of several of these protests, claiming that they were not filed by those who were "owners" within the meaning of section 5 and that one other protest was insufficient for it was signed by only one joint owner. Should any of these protests be disallowed then the requisite twenty percent within this class would not be established.

The appellate court deemed it unnecessary to reach the issues relative to the latter category of protestors for it held that the Klecka objection was sufficient to require a three-fourths approval for adoption of the zoning amendment for land to be used as a trailer camp. Similarly, the Klecka-Most protests prevented the smaller tract from being rezoned.

The majority of the appellate court predicated its decision upon its interpretation of the legislative intent expressed in section 5, which it construed as affording an opportunity to contest zoning changes to owners of abutting property as well as those who own land across an alley or street from the property to be altered. It said that to adopt the position that the term "frontage" referred only to "street frontage" would defeat the legislative intent to protect adjoining property owners. Therefore the majority construed the phrase "frontage immediately adjoining or across an alley therefrom" to mean "frontage created by adjoining property lines or by the parallel lines separated by an alley." 8 Ill. App.3d at 1012.

The appellate court's determination that the term "frontage," as applied to the present cause, means any contiguous boundaries is incorrect. To accept such an interpretation would permit an objection to be filed by any property owner who would have a common border on any portion of the perimeter of the property sought to be altered. In Village of Bannockburn v. County of Lake, 17 Ill.2d 155, an objection under section 5 was filed by one who owned property located directly across a roadway from the land sought to be rezoned. It was argued that the term "frontage" as used in the statute should be equated to the perimeter of the property sought to be rezoned. This construction was rejected, and at pages 158-59 the court stated, "In reading the language of the statute here, we find no need whatsoever for construction, interpretation or labored effort to ascertain the legislative intention. In this statute there is neither ambiguity nor room for construction. It seems to us abundantly clear that the legislature expressed its intention in clear and unmistakable terms and the only function of the court under such circumstances is to declare and enforce the law as enacted by the legislature. (Belfield v. Coop, 8 Ill.2d 293.) 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. See Standard Oil Co. v. Kamradt, 319 Ill. 51."

Here, the majority of the appellate court has accepted the definition of the term "frontage" as applied to that category of objectors involved in Bannockburn but has given a contrary definition to the same term when it is used to describe that class of objectors who have property adjoining or across an alley from the property to be rezoned. Where a meaning is attributed to a word and it again appears in the same statute, it should be given consistent meaning unless a contrary legislative intent is clearly expressed. (Moran v. Katsinas, 16 Ill.2d 169, 174; People ex rel. Lipsky v. City of Chicago, 403 Ill. 134, 142.) In Bannockburn the court found that the legislature had expressed its intent in precise and unmistakable language and that the term "frontage" was not synonomous with the property's perimeter. The definition of the term "frontage" as determined in that case is applicable herein and the conclusion that the Klecka-Most tracts had sufficient "frontage" based only on their contiguous boundaries with plaintiffs' land is erroneous.

However, it is alternatively suggested that the Klecka objection alone is sufficient, for the 330 feet of that property which adjoins Cottage Grove Avenue amounts to twenty percent of the frontage necessitated by section 5. This conclusion is reached by interpreting section 5 as requiring that the twenty percent be calculated by comparing the ratio of the frontage of the land for which an objection is filed to the total frontage for which a protest could be filed. In this case it is urged that the property contiguous to the roadway located to the north of plaintiffs' land, for which no objection was filed, is 1320 feet. Thus the total frontage for which a protest could be made consists of 1650 feet and the Klecka portion is exactly twenty percent of this amount.

We find this reasoning unpersuasive. In Bannockburn the standard set forth required that the objectors have frontage which is at least equivalent to twenty percent of the frontage sought to be altered. (17 Ill.2d at 159.) The proper method of calculating the percentage in this instance is ...


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