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Bjork v. Dept. of Transportation

OPINION FILED APRIL 9, 1980.

WILLIAM J. BJORK ET AL., PLAINTIFFS-APPELLANTS,

v.

THE DEPARTMENT OF TRANSPORTATION ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Winnebago County; the Hon. ROBERT C. GILL, Judge, presiding.

MR. JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:

This is an appeal from a judgment of the circuit court affirming the decision of the Division of Aeronautics, Illinois Department of Transportation, to grant John R. Martin a certificate of approval for operation of a restricted landing area.

Martin applied for a certificate to operate a restricted landing area in 1975. At that time the minimum effective length of a landing strip was 1,200 feet. (Effective length means the length after deducting 15 feet for each foot of height of obstructions within the perimeter of the area — thus a 40-foot tree would decrease the effective length of the strip by 600 feet.) When Martin applied in 1975 for a certificate of approval to operate the restricted landing area, it was tentatively approved, subject to Martin's burying below ground some power lines at one end of the property. Notice of the intention of the Division of Aeronautics to approve the application was published by newspaper in September of 1975 as required by statute. The purpose of the publication was, of course, to give interested parties, such as neighboring property owners, an opportunity to voice their objections at a public hearing prior to final approval of the application for a certificate to operate. Several nearby property owners objected, as well as the city of Rockford, on the ground the operation of the restricted landing area on Martin's property would violate the city of Rockford zoning ordinance. After a hearing, the circuit court held that the Rockford zoning ordinance was null and void as applied to the use of Martin's property for a restricted landing area. Upon appeal, this court affirmed. American National Bank & Trust Co. v. City of Rockford (1977), 55 Ill. App.3d 806.

After this court affirmed the zoning decision of the circuit court, Martin sought final approval for his certificate to operate the restricted landing area, and several of the nearby property owners objected again — this time on the ground that the operation of the landing area was not safe. After a hearing, a final administrative order was issued by the Division of Aeronautics in July of 1978 approving the application of Martin for operation of the restricted landing area. The plaintiffs, nearby property owners, contend in this appeal that the effective length of the landing strip would be a bare 1,200 feet even if the changes were to be made which were first indicated by the Division of Aeronautics to be necessary in 1975; that is, the taking down and burying underground of certain power lines at one end of the property. However, while 1,200 feet would have been an approved length in 1975, the objectors point out that the requirements as to the effective length of the runway strip were changed in May of 1976 to require an effective length of 1,600 feet. This greater length could not be complied with because of trees at the edge of the property and a road along one side, which at a ratio of 1 foot of height to every 15 feet of length, cut down the effective length of the landing strip to less than 1,600 feet.

The plaintiffs argue that since final approval of the certificate for operation of the landing area was not given until 1978, and the regulations of the Division of Aeronautics were changed in 1976 to provide for 1,600 feet of effective length, the notice of intent to approve the restricted landing area which was given in 1975 before the final hearing, was subject to the 1976 requirement. Martin on the other hand contends that the notice of intent to approve the application given by the Division of Aeronautics in 1975 entitled him to a certificate based on the 1975 required length of 1,200 feet, that this was a "right" given to him at the time the 1,200 foot requirement was in effect and cannot be abrogated by a subsequent change in the regulations of the Division of Aeronautics. In support of this argument Martin cites an excerpt from the language of section 64 of the Illinois Aeronautics Act (Ill. Rev. Stat. 1977, ch. 15 1/2, par. 22.64) reading as follows:

"A rule, ruling, regulation, order or decision made after such rehearing, amending, changing, abrogating, or rescinding the original rule, ruling, regulation, order or decision, shall have the same force and effect as the original rule, ruling, regulation, order or decision, but shall not affect any right or the enforcement of any right arising from or by virtue of the original rule, ruling, regulation, order or decision unless so ordered by the Department."

However, the portion of section 64 cited by the appellee, Martin, gives an entirely erroneous idea as to the thrust of the statute. Actually, the first paragraph of section 64 gives the Department of Transportation authority to amend, change, abrogate or rescind any rule, ruling, regulation or decision or order made by it provided "notice and an opportunity to be heard [is given] to the persons, municipalities, or other political subdivisions to be affected thereby * * *." (Ill. Rev. Stat. 1977, ch. 15 1/2, par. 22.64.) Since no issue is raised here as to whether or not the department gave notice and an opportunity to be heard regarding the change here noted in the required length of the landing strip, that point is waived, and we may assume that the department rightfully and legally changed its regulations regarding the required clear distance for a restricted landing area. Thus it seems to be established that the department had the power, and lawfully exercised it, to alter the regulations as to the length of the landing strip. The major part of section 64 concerns the requirements and limitations in connection with applications for a rehearing. The second paragraph of the section, after referring to procedure for rehearing, specifically refers to a ruling or order "made after such rehearing." Ill. Rev. Stat. 1977, ch. 15 1/2, par. 22.64.

Thus, the thrust of the language of section 64 is directed to rehearings. Section 64 undoubtedly gives a person affected by an amendment or change in the regulations an opportunity to be heard, but the statute provides that the changed rule or regulation "shall have the same force and effect as the original rule, ruling, regulation, order or decision * * *" as the original, with the further qualification that the new rule or regulation "shall not affect any right or the enforcement of any right arising from or by virtue of the original rule * * *." (Ill. Rev. Stat. 1977, ch. 15 1/2, par. 22.64.) (Emphasis added.) It is clear, then, that in order to invoke the provisions of section 64 of the Illinois Aeronautics Act, the person affected thereby must (a) apply for a rehearing as to the new rule or regulation or (b) must establish in his challenge to the new rule or regulation that he had a "right" arising from or by virtue of the original "rule, ruling, regulation, order or decision." There is no evidence in the record before us that the appellee, Martin, ever challenged the new regulation through a request for a rehearing, and therefore it appears that the new regulation cannot be challenged unless Martin, as "the person affected thereby," had acquired a right arising from or by virtue of the original "rule, ruling, regulation, order or decision * * *."

• 1 In the case before us, Martin seeks to avoid the effect of the new length requirement without ever having challenged it through a request for rehearing, and it must be assumed that he is, therefore, relying on a "right" conferred on him by virtue of the published notice in 1975 by the Division of Aeronautics of an "intent" to grant the certificate of approval for the restricted landing area. This, however, was obviously only a preliminary step required by statute in order to give notice to possible objectors. Safety considerations were pertinent and vital to the surrounding neighbors, and it is obvious that the publication of a notice of "intent" to grant the certificate of approval was only a first step, and it did not confer any right on Martin. If the notice of intent had conferred a right in Martin to operate the airstrip in question, it would, of course, not be necessary or even proper to proceed to hear the objectors and consider their arguments contrary to Martin's application. Thus we see no validity to the argument that the Division of Aeronautics or the Department of Transportation is abrogating an established right or privilege granted to Martin at a date preceding the adoption of the 1,600-foot requirement for a restricted landing area. The letter of intent issued in 1975 established no right but merely set the machinery in motion for a final determination as to the granting of the certificate to operate.

Moreover, the contention of Martin that the 1975 regulation as to length requirement of the runway strip takes precedence over the 1976 regulation in connection with a proceeding conducted in 1978 seems to be at odds with established Illinois law. The privilege of operating a restricted landing area is neither a vested property right nor a right conferred on a citizen by the constitution. In People ex rel. Foote v. Clark (1918), 283 Ill. 221, 225, the rights of a party acquired under a statute passed in 1913, regarding the width of roads, was abrogated by an amendment passed in 1917. The supreme court said:

"The legislature, however, cannot pass a retrospective or an expost facto law impairing the obligation of a contract, nor can it deprive a citizen of any vested right, by a mere legislative act. [Citation.] `This is a principle of general jurisprudence, but a right to be within its protection must be a vested right. It must be something more than a mere expectation, based upon an anticipated continuance of the existing law. It must have become a title, legal or equitable, to the present or future enjoyment of property or to the present or future enjoyment of the demand, or a legal exemption from a demand made by another. If, before rights become vested in particular individuals, the convenience of the State induces amendment or repeal of the laws, these individuals have no cause to complain.' (1 Lewis' Sutherland on Stat. Const. — 2d ed. — sect. 284. See, also, R.C.L. 308, 309.)" 283 Ill. 221, 225.)

To the same effect is People ex rel. Eitel v. Lindheimer (1939), 371 Ill. 367.

While these are legal grounds for rejecting the contention that the defendant has acquired a right which cannot be affected by subsequent changes, there is an even more telling objection to this argument. This is the fundamental consideration of safety. Section 25 of the Illinois Aeronautics Act (Ill. Rev. Stat. 1977, ch. 15 1/2, par. 22.25) states as follows:

"It is hereby declared that the purpose of this Act is to further the public interest and aeronautical progress by providing for the protection and ...


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