the issue in the case is whether the city is aion violated pasa linos the owner's right to due process by failing to give them personal notice two is unconstitutional as applied in this case because while the city of zion followed the statute to the letter the statute does not require personal notice to the owners of the property being rezoned just put this in a little bit of context in the more typical zoning case the issue of notice to the owner of the property so it doesn't normally arise because it is usually the owner of the property you is applying for the resulting change the city of course does not dispute the fact that due process of the due to due process clause does apply to zone ing situations the question for the court in this case is what process is due section eleven thirteen two requires a public hearing and publication  a newspaper publication notice of the public public hearing the question is does due process require personal notice every time some protected interest is affected by governmental action and the answer of course is no the case cited by the apple leaves the malayan case of the us supreme court says that there must be a balancing of the interests of the potential deprivation of due process or protected rint interests how much is the individual harmed here in this case the owner made no effort to well we're  not dealing with the the specific facts of the case of the legal issue the individual the owner here made no effort to exercise his development rights until two thousand and one which was some thirty years after he acquired the press subject property and five years after the comprehensive rezoning in one nine hundred ninety six on doesn't challenge the rezoning on the grounds that it was on reasonable but clearly the conditions in the city of zion could have changed and in fact did change during the thirty years between the time you acquired the property and tiny applied for the permit to develop this part of it and what was reasonable in one nine hundred seventy one could well have become inappropriate by one nine hundred ninety six when the comprehensive rezoning took place so there was no real deprivation of any of the owner's actual exercise of any of his rights until two thousand and one when he came back to the city and applied for building permits for the final phase of his development and women's passing when i discovered that his use of the property had been limited he was not at that point without some kind of remedy he could have there was the opportunity for a post deprivation here or he could have applied to the city or a further deprivation hearing is pretty much cures any harm to the individual but that was a quote that was caused by a pre depravation  proceeding the second element of the balancing test is the fairness in the real reliability of the existing pre term anation procedures and the value if any that is added to the process by additional procedural safeguards in this case the public hearing and i'm paraphrasing from chicago title and trust vs alice i'm paraphrasing at the public hearing in the comprehensive rezoning process itself provides a careful and scientific study by a competent commission with the opportunity to the public to express its views and to make objections so that  only commission can balance the object sims against the advantages and reach a sound conclusion so the process itself in the comprehensive rezoning situation provides for a fair and reliable pre term a nation proceeding albeit without the personal notice and finally in the comprehensive own case and in the deprivation analysis the process of not analysis we have to according to the supreme court balance the public interest of additional pre term a nation procedural safeguards against the disadvantage the harm to the public interest and in this situation the administrative burden of providing personal notice is unmanageable comprehensive rezoning situation where the entire community the entire municipality is being reconsidered for revamping re design of the entire zoning map for the entire  community requiring personal notice to make everybody property owners who are affected by the by the comprehensive plan well that it at the end of the process there were about eighty five parcels that were actually resolved but at the beginning of the process the entire city was was under consideration for remapping the existing zoning map was repealed hundred ninety six he paid he paid taxes on the property yes and apparently that record was kept somewhere that was accessible to the city as i wasn't certain where they could have easily found is his address i don't think there's any question but that had the city look for mr presley no it could easily have found by doing a title search or checking the tax records yes there were any of the other process of land nearly as commission rate yes presumably identifying the number of earth yes and in this case eighty five earth were affected yes postage for that for personal noticed eighty five persons would have been thirty do yes so in this balancing test that you talk about in the in the burden design in this particular case if you take that tentative report into account it's not much of an administrative burden as well in in retrospect considering that the eighty five parcels that were actually rezoned would have cost thirty dollars and we probably could have identified all of the owners that probably would not be a huge administrator bird but at the beginning of the process when the particularly keep in mind that the comprehensive rezoning statute applies in two distinct situations first of all it applies when the municipality doubt that it isn't isn't pointing to the comprehensive map missing the point the statute itself talks in terms of the tentative report the commissions are prepared tentative report presumably to identify the person's yes right right and  proposal only ordered for the entire municipality so it's some point in time the the municipality before the rezoning takes place has a pretty definitive idea of what persons are affected don't thin newspaper like the plaintiff has characterized one of them is a shopper's newspaper there are examined the actual copies of the notices are part of the record in this case are exhibits to both  think we can make a constitutional decision based on the going on where the notices were published it's part of the balancing process i'm not sure that the  based on the number of parcels which were actually rezoned yes in this case it was eighty five parcels and the postage for that kind of notice may not have  extravagant we would have had to prove the problem of knowing the title searches on each of those properties to find out the new record owner or the or the tax records to find out the tax payer of record there would  line at that point i want to go back to your statement that in this particular case the tentative report you think was prepared before the hearing those in the statute call for the report to be prepared before the hearing in each case you either believe us true yes ok yes so i'm just trying to understand your broader argument that the hearing sometimes takes place before the time to report if that that yes but it could well have been one hundred eighty five parcels or two hundred eighty five parcels or every parcel in the city in the in the case of the original the first zoning map ever adopted by a community it is as many parcels as as the as there are in the community and so i'm not sure that we can construe the as i say the constitutional issue based upon the number of parcels involved if if you if if the corps were to say well there were only fault but you only get the five parcels involved in this so would have been a burden you know where do you draw that line is if the five requires personal noticed is one hundred eighty five require personal the three hundred eighty five require personal notice i'm not sure it's useful to regulars in the way business you can always find a way to counter balance just want to give make sure you have a chance to comment well i agree the this is what i'm a little another little thing is there is a claim that the notice itself was defective because it lacked detail and was not regard the notice complied with the statute which requires notice of the public hearing not notice of those parcels to be rezoned and the notice clearly provided information about the the fact of the public hearing and that's all that the statute requires it is important that we do have an as applied challenge here right because we're we are dealing with eighty five earth as we are dealing with a tentative report we are dealing with the timing of all of that versus an on its face challenge which would you know maybe some of the examples that you come up with are correct the first time comprehensive zoning is is out there that you know maybe it is overly burdensome but we're only dealing with an an as it's adopted but it is designed to control the development and growth of the community up to ninety two thousand and ten comprehensive plans are typically amended revised looked at again every five ten fifteen eleven thirteen seven is one of those sections but it's on its face it applies only to city of chicago pops it municipalities the population over five hundred thousand there's some question as to whether it should be applied to smaller communities that's an open question minister along right now but yeah there are those that particular situation when the owner is required to notify surrounding property owners but there is no section of the  all with respect to justice thomas questions with regard to the tentative report but typically happens in these types of situations and admittedly they do not happen that frequently because it is something that either occurs at the time that is first creating its zoning where at a time such as what design did in this particular one they apparently had an ordinance that have been on the books for a number of years and they decided that it was time to review and look at things a lot of time goes into that work with respect to the p outside it went into the preparation of that new comprehensive plan following up with pat and the new zoning ordinance the same type of process goes on one of my clients and but it was still there even with the election of last month the city of rocky and for the past three years they've been working on preparing what will ultimately be a tentative report on a new comprehensive rezoning ordinance what happens is when you arrive at the point where you get to a tentative report and especially in the case of a mature city such as zion or such is waukegan for it which is the other example i just gave the reality is the number of parcels they're going to be subject to actual change of typically is nowhere near the total number of persons within because with the developer community you have your zones that have been created either by the prior to zoning that's been done by the community or simply by the way the market has created it so that you aren't going to be running into huge numbers of properties once a tentative report is prepared that is what is essentially going out there  when they were going ahead and putting their ads in the papers back in one thousand nine hundred sixty they knew that what they were looking at was more than likely about eighty five properties were going to be rezoned that could have gone down somewhat based upon what happened  the public hearings it also could have gone up a little bit to expanding on public input on it i would point out to the justices that attached to the same exhibit were the notice a public hearing was put into the bottom here in best news which by the way is a four by four had attached to that are the minutes of the public hearing and also propose comprehensive zoning changes this was basically something that was available at the public hearing back in one thousand nine hundred six which gives an idea with handwritten notes on it what properties were going to be subject to the zoning changes so the argument that we had made throughout is that they don't this property since nine hundred seventy two and each year they received an assessment notice from the county they received the property tax bill from the county and paid each year they had been information available freely available to zion at the county would like same could have come in and obtained it prepared the very modest postage no question there would have been some administrative cost in preparing the letters and getting the rest of but i would suggest to you that in this situation it's before the court with eighty five properties we're probably not looking at more than a few hundred dollars to get notice to everyone and while i suppose a municipal budget issue could be that's a little bit much we don't want to do that the fact of the matter is in mr pasadena was just one case is that the property owned by each one of those individuals is important to them the value when you change the use or  the use of a property you can affect how of course it could be used and also the value of the property that can in one simple personal can be much more than the total cost of what that information was hundred seventy two if i might do it briefly he built forty eight units of apartments in a single family homes in those were constructed in the following years i believe he sold off well the single family homes or so this completed in the forty eight apartment in case one of the issues that they looked at even back in one nine hundred fifty eight was this problem of a nonresident property owner the value to that nonresident owner is the same as if you're a resident and if you and this is an example that of someone living in california for example this is mr kessler of his river lake county through the entire time period he's not close enough to zion where he was able to get a copy or it's receive a copy of these news weeklies that went out with this ad i think the point here is that you have to get out a meeting from notice so that the property owners have an opportunity to avail themselves of be comprehensive zoning amendment and then it goes ahead and tells you when that when the hearings are going to take place in a copy now i ask you as all of us as lawyers here what in the world is a comprehensive zoning amendment if you are an owner of property and you see this it doesn't give any information about what it is it doesn't indicate but in fact if you own property within the community something about this thing right actually affect the value of your property because it's going to change the zoning that you have on it they didn't take the time to produce and they had the eighty five properties they head to head either a permanent index number and address on each one of those because they had identified them on the maps as to where they are and the fact that there's only one is going to be changed here's an example going into the future you can have a little bit longer notice where you indicate the pin numbers these are potential properties that will be affected by the zoning cuesta cation may be affected by this action if you pin numbers addresses including names if you could pass from the county that's the type of thing that could be done another thing that could be done and i know this for example from again the city of rocky and we have nothing words in waukegan and i know when they did this last time back in one nine hundred seventy eight they published by word they had a map in the newspaper admittedly not too easy to see because you just can't reproduce it properly but they had ward meetings for people to come in there are ways to get around the overall approach of a city now of course i realize that even in a place like the city of chicago you may be dealing with a different animal but even there you have a mature city and i would suspect that if you could ever get that zoning ordinance under control and come up with  comprehensive amendment you might find that the actual changes of use are not as great as one might think consequently this can be done i cited a case of my brief  a two block area of the downtown part of a row was being looked at for what they referred in the opinion as a comprehensive classification a ruler could appear to notice which contained the identification of each of the properties the date in time of the particular hearing that was going to take place place in the proposed changes for those properties they then and i don't know exactly because it doesn't indicate that in the opinion but they sent out a notice to each of the affected property owners within that two block area to let them basically see the same thing that they had published in the newspaper so there's an example and  let's assume there were seventy properties within a two block city to city block area there is an example of how this can be very easily done that wasn't overburdensome and it provided a meaningful notice all the property owners to come in and raise an issue if they h city but the court might look at this and say well in this situation maybe a publish notice is adequate but what i think the court is looking at here the deficiencies in most notice were just too great are and the reason for that is exactly what i brought them with paul mr keller indicated today these cases get into the court system when i the property owner have asked for a change of my zoning i get turned down by the governmental authority i don't like it i file a lawsuit the issue of where this never really comes up the two cases that i found here illinois like that dealt with it to know about it in the course of now we're not going back far in what you're asking but i did look at the american oil case and basically were approving of what happened there and the american oil case of course was a was a  little bit different situation but it gave the appellate court the opportunity to look at the situation and just what kind of notice does that owner need this is the unusual situation of course of a pro from business to residential the city of chicago did everything that the state should comply required and that's the eleven thirteen fourteen which is the typical zoning change request most municipalities i think nowadays send out notice actual notice to property owners of them three hundred feet of the subject property well of course in all of the situations i'm here i've come in and asked for it you know this goes out to the surrounding owners in the american oil case you had the unusual situation that somebody at the city of chicago decided they had to change the zoning of somebody's property without letting them know about it and the court then had the opportunity to look at the due process implications of that interest we have to make sure that the property owner has an opportunity to challenge this in the end they are so high that could also highlighted the fact that when you have readily available information and i believe we talked about the tax records which is exactly the same something no i don't believe so no i don't believe it's something the court should consider in this instance yes mr keller so it was true it was true three years ago when the lawsuit was filed frankly it's still true today if the situation presents itself there's nothing to prevent my client from going back and filing a typical rezoning application and asking that his earlier zoning be reinstated a couple things that were around here the fact of the matter is and there were certain things in the argument that i think were slightly outside the facts that were before the court but the fact of the matter is one thousand nine hundred six is when this rezoning occurred and changed my client's property from the multiple but the family to the single family my client did go in to zion in two thousand and one and actually had a proposal for single family development now i do not know the reason how that occurred because i was not involved in the matter and i will tell you when i first met with my client in two thousand and five i asked him why in the world did you go in did you ever find out how you zoning was changed is the answer he was for it so you would tell me how my zoning was changed my response was a freedom of information act request for me so yes the answer is my clients at that point could have erected to ask for a result of this property my advice to him based upon the law was hey you you c zoning back without you having to go into the city and have them give you all sorts of reasons why you shouldn't get it and it may surprise the wake county circuit court was concerned i was correct on that advice and i ask you what what is the specific relief you requested at this time own well actually got these two from the circuit court order on it i believe that my client even though this is beyond that in his multiple rezoning should be intact he basically back in one nine hundred seventy two paid thirty five thousand dollars to the city of zion this is part of the record for help in extending the senator the sewer line which would provide the opportunity for his property and other property in between where the line was and where it was coming to to be developed he also paid in you'll see it's part of the documentation mind being extended and not only with the city not going with zoning they wouldn't even tell him how it was changed so yes i would like to have the trial court affirmed and i'd like this court to take a closer look at it and tell my clients we can go ahead and single property owners coming in and asking or the city doing something and not letting the property owner know that in this case i think it still applies all other tenants of the law are still the same and that i think you argued in your brief that your client had a mean please of course just briefly first as to the american oil case i want to make it clear that there are call the court's attention to the fact that in that case the the court went out of its way to imply that the city of chicago there was attempting intentionally to conceal the rezoning from the owner of the property there is no suggestion  that in this case zion has complied in good faith with the a letter of the law the eleven to thirteen to and at that and had no reason to think that it was doing anything improper in following the letter of the law and publishing the notice and not sending out personal notice i want to emphasize also that i've  opinion the the availability of post deprivation relief to the plaintiff in the form of his right to apply for reinstatement of the  no course not but if it were not successful then obviously plaintiff would have the right to come back to court no i mean we wouldn't make him go if we were going to guarantee him that he'd get that resign he would make asked to to to to grant to plaintiff the course this case comes to the score directly from the trial court and not from the appellate court and the  the trial court order final order it's expressly holds eleven thirteen to unconstitutional as applied in this case and says that than the one nine hundred seventy one zoning is still in effect as to this property and i do i think it would be there's a basis for the this court to declare that the entire nine hundred ninety six zoning ordinance is invalid because we're only dealing with  did not allow as it has not allowed plaintiff to build as many units as he had paid permit for fees for back in one nine hundred seventy two that it would own him reimbursement of whatever portion of the fees that he cannot had the city had at an earlier stage of the proceedings in the trial court filed a motion to dismiss on the grounds that the action was premature that planes as had not exhausted all of his administrative remedies in that he had not applied for a map amendment to put the property back to what it had been the trial court for its own reasons deny them motion and plaintiff ended up amending as a or as actually i think perhaps the court never actually reached that decision because plaintiff amended his complaint but we but it was our it was our city's knew it at the time that the key should not have been in trial court at all that because  case number one zero seven or to nine you taken under advice