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Docket No. 86687-Agenda 25-September 1999.

GANDAJI N. CHAVDA et al., Appellants, v. JAMES J. WOLAK et al., Appellees.

Opinion filed December 2, 1999.

JUSTICE RATHJE delivered the opinion of the court:

The sole issue presented in this appeal is whether a 1997 amendment to section 11-91-1 of the Illinois Municipal Code isconstitutional. We hold that it is.

BACKGROUND

This appeal arises from the Village of Lombard's efforts to vacate a portion of Edson Street, just north of its intersectionwith Roosevelt Road. Plaintiffs, Gandaji and Shobhar Chavda, own the property abutting the proposed vacation on thewest. Defendants, James and Janice Wolak, own the property abutting the proposed vacation on the east. On June 4, 1998,the Village of Lombard adopted Ordinance No. 4482, which provides that (1) the public interest will be served by vacatingthe described portion of Edson Street; (2) the fair market value of the described portion of Edson Street is $30,000; and (3)plaintiffs alone shall pay to the Village of Lombard the fair market value for the described portion of Edson Street.

In enacting Ordinance No. 4482, the Village of Lombard relied upon a 1997 amendment to section 11-91-1 of the IllinoisMunicipal Code (65 ILCS 5/11-91-1 (West 1998)). Prior to the 1997 amendment, section 11-91-1 provided, inter alia,that (1) upon a determination that it will serve the public interest, a municipality may vacate any street or alley within itsjurisdiction; and (2) a municipality may require all abutting owners to pay compensation to the municipality in exchange forthe rights acquired upon vacation. See 65 ILCS 5/11-91-1 (West 1996). The 1997 amendment, in relevant part, added thefollowing language to section 11-91-1:

"If the ordinance provides that only the owner or owners of one particular parcel of abutting property shall makepayment, then the owner or owners of the particular parcel shall acquire title to the entire vacated street or alley, orthe part thereof vacated." 65 ILCS 5/11-91-1 (West 1998).

Following the adoption of Ordinance No. 4482, plaintiffs filed a declaratory judgment action in the circuit court of Du PageCounty. Plaintiffs' complaint sought a declaration that, upon payment of compensation to the Village as set forth inOrdinance No. 4482, plaintiffs would be entitled to receive fee title to the entire vacated portion of Edson Street.Defendants filed a counterclaim, arguing that the amended section 11-91-1 is unconstitutionally vague because it conflictswith section 11-91-2 of the Illinois Municipal Code (65 ILCS 5/11-91-2 (West 1998) (providing that, upon vacation of astreet or alley, title vests proportionately in all abutting owners)); violates the due process clause because, without anystandards, it authorizes a municipality to award title to only one of several abutting owners; and violates equal protectionand special legislation principles because it discriminates in favor of one landowner without any rational basis.

The parties filed cross motions for summary judgment, and the trial court entered summary judgment in defendants' favor.In so ruling, the trial court noted that, under section 11-91-1, before a street or alley may be vacated, the municipality firstmust determine that "the public interest will be subserved" by that vacation. By contrast, without requiring any findingswhatsoever, the 1997 amendment to section 11-91-1 authorizes the municipality to confer title to only one of severalabutting property owners. In the trial court's judgment, section 11-91-1, as amended:

"on its face without any reference to the public good gives the Village the absolute right to pick one of two apparentlyequally situated property owners and give them the entire fee without any reference to any need under the policepower to do so and without even the basic platitudes that you recited in the usual preambles that follow this kind oflegislation about the public good. They don't even have to do that. Now, I suppose maybe that's implicit. Maybe allgovernment officials are charged with that. But that's a scary statute, it seems to me."

Believing that section 11-91-1, as amended, "confer[s] upon a municipality the absolute unilateral and arbitrary right toaward one property owner" title to the vacated property, the trial court held that section unconstitutional and unenforceable.

Because the trial court declared an act of the legislature unconstitutional, the appeal from that judgment lies directly withthis court. See 134 Ill. 2d R. 302(a).

ANALYSIS

Absolute and Arbitrary Power

The trial court's analysis rests upon a faulty premise, namely, that, absent a statement from the legislature, a municipalityhas no obligation to act in the public interest. Because section 11-91-1, as amended, expressly requires a municipality toact in the public interest when vacating a street or alley, the trial court believed that the absence of such an expressrequirement with respect to the transfer of title means that municipalities are free to discriminate arbitrarily among abuttingproperty owners when awarding title. Nothing could be further from the truth.

A municipal enactment, adopted under statutory authority, enjoys a presumption of validity. City of Decatur v. Chasteen, 19Ill. 2d 204, 210 (1960). Nevertheless, the due process clause prohibits the arbitrary, unreasonable, and improper use ofmunicipal power. City of Decatur, 19 Ill. 2d at 210. Thus, to overcome the presumption of validity, the party challengingthe municipal enactment must show by clear and affirmative evidence that the ordinance is arbitrary, capricious, orunreasonable; that there is no permissible interpretation of the enactment that justifies its adoption; or that the enactmentwill not promote the safety and general welfare of the public. City of Decatur, 19 Ill. 2d at 210. Stated conversely, everymunicipal enactment must be free from the constitutional infirmities described above. Thus, a municipality's duty to act inthe public interest derives not from a legislative pronouncement but from the due process clause of the constitution itself.See City of Decatur, 19 Ill. 2d at 210-11.

Turning to section 11-91-1, as amended, we fail to find a constitutional defect in the legislature's failure to requireexpressly that a municipality act in the "public interest" when choosing to award title to one of several abutting propertyowners. As discussed above, the absence of such a requirement does not confer absolute and arbitrary authority uponmunicipalities. On the contrary, as with every other municipal enactment, the due process clause requires that an ordinanceawarding title to one of several abutting property owners bear a reasonable relationship to the public interest sought to beprotected. An ordinance enacted under section 11-91-1, as amended, therefore is presumed valid. A party challenging suchan ordinance may invalidate it only by presenting clear and convincing evidence that the ordinance is arbitrary, capricious,or unreasonable; that there is no permissible interpretation of the ordinance that justifies its adoption; or that the ordinancewill not promote the safety and general welfare of the public. See City of Decatur, 19 Ill. 2d at 210.

Because section 11-91-1, as amended, in no way grants absolute and arbitrary power to municipalities, the trial court erredin entering summary judgment in defendants' favor on that basis.

Defendants' Additional Arguments

Defendants argue that, even if section 11-91-1, as amended, is not unconstitutional for the reason given by the trial court, itis invalid for two additional reasons. Specifically, defendants argue that section 11-91-1, as amended, (1) constitutesspecial legislation because it discriminates in favor of one landowner without any rational basis;⁽¹⁾ and (2) isunconstitutionally vague because it conflicts with section 11-91-2 of the Illinois Municipal Code. Although the trial courtdid not decide these issues on the merits, the parties fully briefed and argued these issues in the trial court. Accordingly, wemay address them on appeal. See American National Bank & Trust Co. v. National Advertising Co., 149 Ill. 2d 14, 21(1992) (appellee may raise any argument that supports the trial court's judgment, even if the argument was not directlyruled upon by the trial court).

Special Legislation

We easily can dispose of defendants' special legislation claim. Article IV, section 13, of the Illinois Constitution providesthat "[t]he General Assembly shall pass no special or local law when a general law is or can be made applicable." Ill. Const.1970, art. IV,