Gary-Wheaton Bank v. City of West Chicago

Citations: 194 Ill. App. 3d 396; 551 N.E.2d 414; 141 Ill. Dec. 421; 1990 Ill. App. LEXIS 232Docket: No. 2—89—0506

Court: Appellate Court of Illinois; February 23, 1990; Illinois; State Appellate Court

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Intervenor defendants, led by Frank Hacker, appealed a Du Page County circuit court order that granted a declaratory judgment to plaintiffs Seifert and Sons, Inc., and Gary-Wheaton Bank, declaring that the City of West Chicago validly rezoned a 30-acre property owned by Seifert from agricultural to R-2 residential classification. The intervenors raised several arguments on appeal: 

1. They contended that the service requirements for protest petitions under Illinois Municipal Code section 11. 13—14 are directory rather than mandatory.
2. They argued they substantially complied with the protest requirements.
3. They claimed a City ordinance increasing the required council vote for Seifert’s zoning application to two-thirds was valid.
4. They asserted that Seifert waived the service requirements.
5. They requested the trial court allow them to correct deficiencies in their protest petition and reconsider the matter.

The court affirmed the judgment, noting that Seifert filed for annexation and rezoning on May 6, 1988, and that the City council approved an annexation agreement on August 15, 1988. The rezoning request was voted on October 17, 1988, the same day the intervenors filed their protest petition, which was not served on Seifert or his attorney as required by section 11. 13—14. However, the West Chicago City Code had a similar provision without a service requirement. Mayor A. Eugene Rennels acknowledged the failure to comply with the service requirement but ruled that the petition met the City ordinance's criteria, necessitating a two-thirds vote for approval of the zoning amendment.

The council upheld the mayor's ruling with an eight to zero vote, followed by a vote on an amendment that passed with five approvals and three rejections. Mayor Rennels declared the amendment failed due to not meeting the two-thirds vote requirement. On November 7, 1988, plaintiffs filed a two-count complaint in Du Page County circuit court against the City, seeking specific performance of the annexation agreement in count I and a declaratory judgment on the valid rezoning of the property in count II. The trial court permitted intervenors, who signed a protest petition, to join as defendants. On March 13, 1989, the court granted partial summary judgment to the plaintiffs on count II, asserting that the service requirements of section 11. 13—14 of the Code were mandatory and declaring a related City Code provision unconstitutional. A genuine issue of material fact regarding Seifert's waiver of service requirements was noted, and the trial was set for April 13, 1989. Testimony revealed conflicting accounts of Mayor Rennels' comments about the conflict between State statute and City ordinance, as well as whether Seifert had been served with the protest petition. The trial judge ruled that Seifert did not waive his right to service and issued a declaratory judgment affirming the valid rezoning of Seifert's property to R-2, prohibiting City interference. The intervenors contended that the service requirement was directory, but the court emphasized that the statutory use of "shall" indicates a mandatory obligation. The amendment to section 11—13—14, effective January 1980, served to ensure applicants for zoning changes were informed of protest petitions, and interpreting the requirement as directory would undermine its purpose. Therefore, the court upheld the mandatory nature of the service requirements.

In Treadway v. City of Rockford, the Illinois Supreme Court established that substantial compliance with statutory steps is essential for ordinance enactment. The intervenors claim they substantially complied with section 11-13-14 by gathering more than the necessary signatures on a protest petition. However, the court clarified that the service requirements of section 11-13-14 pertain to the two-thirds vote needed for zoning amendments, making the Treadway precedent irrelevant. The intervenors incorrectly cited Mezel v. Mobley and Village of Park Forest v. County of Will, where actual compliance was established, not merely substantial compliance. The court found that the intervenors failed to comply with section 11-13-14, as they did not serve Seifert or his attorney with the petition. Additionally, the intervenors argued their petition met the standards of section 4.14.4 of the West Chicago City code, which Seifert contended conflicts with section 11-13-14. The court's review indicated that zoning amendments must be enacted through an ordinance as per section 11-13-14. It was also noted that a majority vote from the city council is sufficient for ordinance passage unless specified otherwise. The requirements of section 11-13-14 must be fulfilled, including proper service of the petition, for the two-thirds vote provision to apply.

Section 3.11–17 of the Code permits deviations from majority vote requirements only if explicitly allowed by state statutes, invalidating any municipal enactments that attempt to require a two-thirds vote for ordinance passage, as claimed by the intervenors. The trial judge correctly ruled section 4.14.4 of the West Chicago City Code invalid. In cases of conflict between state statutes and municipal ordinances, the ordinance must yield. The ordinance in question conflicts with state provisions governing protest petitions by eliminating a requirement for service of the petition copy to the applicant and attorney. 

Intervenors argued that Seifert waived his right to service by not objecting during the City council meeting. Waiver can occur through intentional relinquishment of a known right, as established in case law, and a trial court's findings regarding waiver are upheld unless against the manifest weight of the evidence. The trial court found that Seifert did not waive his right to service, supported by evidence that the mayor was aware of the conflict and that Seifert’s attorney confirmed non-service during the meeting. 

Additionally, the intervenors contended that the trial court should have allowed the City council to reconsider the protest petition deficiencies instead of declaring the property validly rezoned. However, since the zoning amendment proposed by Seifert received the required five votes for passage, the trial court's conclusion of valid rezoning was upheld. The intervenors did not provide evidence to support their claim that council members would have voted differently if they had known only five votes were needed. Seifert's argument regarding the notarization of the protest petition was deemed unnecessary for resolution. The judgment of the circuit court of Du Page County was affirmed.