Chapman v. County of Will

Mr. JUSTICE ALLOY delivered the opinion of the court: 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. 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 tire 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 tire 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.” 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. “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. 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. 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 tire 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, has reference to the frontage line marking the border where the properties adjoin. We conclude, therefore, that the contiguous boundary, or frontage, of the Klecka tract was sufficient to invoke the three-fourths vote requirement with respect to rezoning of the tracts sought to be rezoned for use as a trailer camp. As an illustration of the absurdity of a construction which would deprive adjoining owners of an effective protest, we can consider a theoretical illustration of an owner who has a 1000 foot square piece of property having linear dimensions of 1000 feet facing a street. If the narrow construction were adopted, the owners of the 3000 feet (without 200 foot street frontage) adjoining the tract would not be able to file a protest which would require a three-fourths vote. If, in the same tract, an alley were to run from the street along one side of the tract a distance of 50 feet only, the owner of a small ten foot tract across this alley from the property could effectively protest and require a three-fourths vote. This would illustrate the inconsistency of the construction which would give no effect to protests filed by owners of extensive immediately adjoining property. Section 5 does not say, in referring to property “immediately adjoining” that “street frontage” or “alley frontage” would be the standard by which the effectiveness of the protest is to be measured. The language which is used specifically refers to property “immediately adjoining.” The obvious legislative intent was to give abutting owners an effective voice in controlling amendments which would rezone adjoining property and, also, to give owners of property across a street or alley a similar effective right of protest. An alternative contention by plaintiffs is that a simple majority was all that was pepdsd to l-ezone the small tract proposed to be used for trailer sales, due to the circumstance that none of the protesters’ land either adjoined it, or was directly opposite it across Cottage Grove Avenue. Until this smaller tract would be rezoned, however, it is and would continue to be a part of a large tract which is adjoined by the Kleclca and Most properties. For reasons already stated, the protest of the owners of the Klecka and Most properties would be sufficient to require a three-fourths vote for rezoning of the smaller tract as part of the larger tract. Any other construction would produce an unjust and absurd result and would put persons seeking rezoning in position to completely thwart the will of the legislature as expressed in Section 5. In this case, for example, if we were to hold that a piecemeal rezoning of a larger tract voids the protest of adjoining owners, plaintiffs or other property owners similarly situated could evade Section 5 by the simple device of not seeking to rezone a buffer strip between the portion of their property sought to be rezoned and that of adjoining owners. The courts must presume that the legislature intended to enact an effective law and must accordingly avoid a construction which would make the statute ineffective in operation. Linkens v. Furman, 52 Ill.App.2d 1. For tire reasons expressed in this opinion, we conclude that both of the proposed zoning amendments failed to pass by the requisite vote. The judgment of the Circuit Court of Will County is accordingly reversed. Judgment reversed. DIXON, J., concurs.