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People v. Witmer

April 23, 1999

THE PEOPLE OF THE CITY OF CHARLESTON, PLAINTIFF-APPELLEE,
v.
RALPH WITMER II, STEVE WITMER, DOYLE JOHNSON, AND BEN HUDDLESTON, DEFENDANTS-APPELLANTS



Appeal from Circuit Court of Coles County Nos. 97OV2389, 97OV2390, 97OV2454 & 97OV2460 Honorable Teresa K. Righter, Judge Presiding

The opinion of the court was delivered by: Justice Garman

In August 1996, plaintiff City of Charleston (City) filed complaints against defendants, Ben Huddleston, Ralph Witmer II, Doyle Johnson, and Stephen Witmer, alleging that they had allowed billboard signs to be placed on their property in areas where signage was prohibited by a City ordinance. Defendants' property is located within the "Corridor Development District" (District) that lies along the right-of-way of Illinois Route 16. Following a consolidated bench trial, defendants were found guilty of the violations and fines were imposed. Defendants now appeal, arguing (1) the ordinances annexing Route 16 into the City in 1965 are void, (2) the City failed to comply with statutory notice requirements when the ordinance creating the District was enacted and the ordinance is invalid because it lacks an ordaining clause, and (3) the fines assessed are unconstitutional. We reverse.

Route 16 extends perpendicularly west from the City. In August 1965, the City enacted ordinance No. 65-O-27, which annexed portions of the Route 16 right-of-way, beginning from the western city limits and extending due west for a distance of 2.78 miles. In September 1965, the City adopted ordinance No. 65-O-33, which annexed an additional 1.85 miles of the Route 16 right-of-way beginning at the west edge of the land annexed in August 1965.

On July 8, 1992, the City published notice of a public hearing to be held on July 23, 1992, by the Charleston Board of Zoning Appeals and Planning (Zoning Board) to consider creating a new zoning district on land previously annexed along Route 16, to be known as the District. This hearing was not held on that date because the meeting of the Zoning Board was canceled. At a hearing on November 5, 1992, the Zoning Board approved the creation of the District. The City adopted the District on April 6, 1993, as ordinance No. 93-O-18. This ordinance stated its statutory authority as section 7-1-10 of the Illinois Municipal Code (Code) (65 ILCS 5/7-1-10 (West 1996)).

No action was taken by the City on its complaints against defendants until late 1997, when defendants were given notice of hearing. All defendants were represented by the same attorney. In their statement of defenses to the charge, defendants alleged that the City lacked authority to enforce ordinance No. 93-O-18 because (1) it purported to create the District and did not purport to amend the City's zoning ordinance; thus, the ordinance is not part of the City's zoning ordinance; (2) the ordinance was not properly enacted, as statutory notice was not properly given; and (3) the land purportedly annexed in 1965 was not contiguous to the City and was an improper strip annexation.

Prior to the bench trial, the parties stipulated that (1) the real estate and signs are within the geographic boundary of ordinance No. 93-O-18 and (2) the signs are not in compliance with the ordinance.

At trial, Jeffrey Finley, city planner for the City, was the only witness to testify. He stated that the meeting of the Zoning Board scheduled for July 23, 1992, was canceled prior to the meeting date, either because of lack of a quorum or because the City's consultant was unable to assemble the necessary information for the meeting. No one was present on the date and time stated in the public notice. The meeting was rescheduled for September 3, 1992. Finley testified that his staff told him a notice was placed on the meeting room door stating that the July 23, 1992, meeting was continued to September 3, 1992. Defense counsel's hearsay objection was sustained. In later questioning, Finley testified the City had a practice of posting such notices and this was the practice that was followed in 1992. The agenda for the September 3, 1992, meeting would have been mailed to the Zoning Board members and the media. There was no other public notice given of that meeting.

The trial court entered a written order on March 26, 1998. It held that proper notice of the continuation of the July 23, 1992, Zoning Board meeting (to September 3, 1992) was given by posting notice on the meeting room door. The court held no further publication was required. The court also found that defendants' defense of void annexation was barred because, while the property annexed was not contiguous to the City in 1965, subsequent annexations of parcels that are contiguous to the Route 16 right-of-way have rendered the property contiguous. The court found defendants guilty of the ordinance violations.

At a sentencing hearing on May 7, 1998, the trial court imposed the minimum fine of $25 per day. Defendants filed a motion to reconsider, making a new argument that ordinance No. 93-O-18 lacks an ordaining clause required by statute and is therefore merely a resolution that one cannot be fined for violating. The motion alleged that the trial court had no jurisdiction to enforce an invalid ordinance. The motion also objected to the court's determination that the property annexed in 1965 is now contiguous to the City, stating that this has been accomplished only through subsequent annexations of parcels adjacent only to the Route 16 right-of-way, which is itself not contiguous to the City.

Defendants also filed an objection to the fines assessed by the trial court, noting that the applicable statute (65 ILCS 5/1-2-1 (West 1996)) allows a maximum fine of $750 for an ordinance violation. They further alleged that any fine in excess of $750 would violate the proportionate penalties clause of the Constitution of the State of Illinois (Ill. Const. 1970, art. 1, §11).

The City filed a motion to strike the portion of defendants' motion to reconsider that raised the argument concerning the lack of an ordaining clause in ordinance No. 93-O-18.

The trial court entered a written judgment order on June 5, 1998, in which it granted the motion to strike, rejecting defendants' argument that the presence of an ordaining clause is jurisdictional and, thus, cannot be waived. The court found that there was substantial compliance with the statute. The court stated its opinion that the definition of "contiguous" in section 7-1-46 of the Code (65 ILCS 5/7-1-46 (West 1996)) (the limitations provision) is broader than the definition of that word as used in section 7-1-10 of the Code. It denied the motion to reconsider and the objection to the assessment of fines. As to the assessment of fines, the court found that the City is entitled to a fine for each day the ordinance was violated. The minimum fine provided for by the City's zoning ordinance is $25 per day. The fine for 637 days is $15,925 for each defendant.

On appeal, defendants argue that ordinance Nos. 65-O-27 and 65-O-33 are invalid, because the land they purported to annex to the City was not contiguous to the City and therefore constituted an invalid strip annexation.

Ordinance Nos. 65-O-27 and 65-O-33 purported to annex the Route 16 right-of-way pursuant to section 7-1-10 of the Code (65 ILCS 5/7-1-10 (West 1996) (formerly Ill. Rev. Stat. 1965, ch. 24, par. 7-1-10)). That section provides that any municipality, by ordinance, may annex any territory contiguous to it, even though the annexed territory is dedicated or used for street or highway purposes, if no part of the annexed territory is within any other municipality. The validity of the 1965 annexations of the Route 16 right-of-way depends upon whether that land was contiguous to the City at the time of annexation. The concept of contiguity was discussed by our supreme court in People ex rel. Adamowski v. Village of Streamwood, 15 Ill. 2d 595, 155 N.E.2d 635 (1959). There, a quo warrantor action was initiated, seeking to prevent the village from exercising any governmental authority over certain territory annexed by it. The village had annexed 75 miles of roadways, none of which was contiguous to the village. The village then annexed a subdivision that was far away from the boundaries of the village and was connected to the village only by virtue of one of the roadways. The supreme court noted that there can be no ...


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