author: JUSTICE STOUDER

text:
    THE CITY OF MENDOTA, Plaintiff-Appellant, v. THE POLLUTION CONTROL BOARD et al., Defendants-Appellees.
    Third District
    No. 3—89—0270
    Opinion filed January 5, 1990.

      Michael S. Guilfoyle, of Mendota, for appellant.
    Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Patricia E. Collins, Michelle D. Jordan, and Matthew J. Dunn, Assistant Attorneys General, of Chicago, of counsel), for appellees.
   JUSTICE STOUDER

delivered the opinion of the court:

This is an appeal from an opinion and order dated April 6, 1989, of the Illinois Pollution Control Board (the Board) pursuant to section 41(a) of the Illinois Environmental Protection Act (the Act) (Ill. Rev. Stat. 1987, eh. IIIV2, par. 1041(a)). In its order, the Board denied appellant’s, the City of Mendota’s (the city’s), request for site-specific relief from section 306.304 of the Board’s water pollution regulations, which prohibits overflows from sanitary sewers. 35 Ill. Adm. Code §306.304 (1985).

The city owns and operates a sewage treatment plant and a separate sanitary sewer water system which serve approximately 7,000 persons and discharge into Mendota Creek and the Little Vermilion River. The plant has a design maximum flow of 2.8 million gallons per day (mgd), and can provide tertiary treatment for 1.8 mgd. Two excess flow lagoons are also located at the plant. Excess flows to the plant are bypassed to the “west” lagoon, then to the “east” lagoon. The effluent from the ponds discharges to the Little Vermilion River (without chlorination) and averages 20 milligrams per liter (mg/1) of five-day biochemical oxygen demand and total suspended solids. The effluent rarely exceeds 30 mg/1 for either parameter. ■

During wet conditions, the city finds it necessary to allow excess flows to bypass the system, thereby allowing raw sewage to pass directly into Mendota Creek and the Little Vermilion River. A bypass refers to an intentional discharge of wastewater prior to complete treatment necessary to prevent operational problems within a facility. The city upgraded its system in 1977 for the intended purpose of reducing infiltration and eliminating sewage bypassing. Bypassing continues to occur, however, at seven locations.

In June 1983, the Board granted the city a variance from section 306.304 of the Board’s regulations. That variance expired on September 10, 1984, and the city did not attempt to renew the earlier variance until December 10, 1985, when the city requested a two-year variance to continue operation of seven overflow locations. The Board denied the city’s petition, and this court affirmed the Board’s decision. See City of Mendota v. Pollution Control Board (1987), 161 Ill. App. 3d 203, 514 N.E.2d 218.

On January 15, 1988, the city filed a petition with the Board seeking site-specific relief. The rulemaking petition proposed a site-specific exemption for five location points which allow untreated discharge to flow into receiving waters during high flow periods. In accordance with section 28 of the Act (Ill. Rev. Stat. 1985, ch. IIIV2, par. 1028), a hearing was held on August 5, 1988, concerning the city’s petition.

At this hearing, the record from the 1985 variance request was incorporated into the proceeding. In its 1985 petition for a variance, the city proposed several changes that it has made or intends to make in the future. The city installed a recirculation line from its east lagoon to the tertiary treatment facility in order to enable the lagoon to handle higher volumes during wet conditions and a motorized gate valve at the head of the plant to control flows into the plant when an operator is not on duty. The city’s witnesses stated, however, that these measures would not eliminate the need for bypassing.

The city highlighted other work it had been doing to improve the system. The city used dye and smoke to determine where the storm sewers were running into the sanitary sewers and made corrections to the system eliminating the detected bypasses. The city is also repairing leaking manholes, relining sewers to prevent infiltration of surface waters, repairing broken tiles in its storm sewers and catch basins, and recently passed an ordinance requiring downspouts that drain into the city sewer system to be permanently blocked.

The city further contends that the engineering firm it utilized for the 1977 system upgrade severely underestimated the volume of infiltration into the system. Richard Spencer, an engineer hired by the city, stated that the engineers responsible for the 1977 project erroneously estimated the inflow into the system for a five-year storm. The engineers on the project estimated that for a five-year storm the maximum inflow to the plant would be 5.8 mgd. Spencer testified that for a five-year storm there would be 11,389,000 mgd delivered to the treatment plant. As a result, the city maintains that inadequate modifications were made to the system, which makes the treatment plant unable to meet the regulations and guidelines set forth in the Act. The city also warns that if it is not permitted to bypass, sewage backs up into the basements of approximately 75 residents, 8 to 10 times a year.

In addition, Spencer testified as to two studies conducted by his consulting firm on behalf of the city. The first study proposed a $1.6 million plan to upgrade the system. This upgrade would reduce the number of bypasses to two or three a year. Spencer also declared that in order to eliminate bypasses entirely, the sewer system would need to be completely replaced at a cost in excess of $14 million. The results of the second study, a stream assimilation study, indicate the overflows and bypasses do not adversely affect the water quality of the streams. According to Spencer, even if the overflows were eliminated, there would not be any significant improvement in the general water quality of the stream.

Michael Wasmer, the city clerk, testified as to the financial condition of the city. Wasmer stated that the city was essentially in the same financial condition as in 1985. At that time, the city had the fifth highest tax rate in La Salle County, and ranked 34th among 37 communities in per capita income. Wasmer also noted that the community is, for the most part, elderly.

In its opinion and order, the Board denied the city’s petition for site-specific relief for two reasons: first, the Board determined that the city, by presenting evidence on only limited alternatives, had not met its burden of establishing that compliance was technically infeasible and economically unreasonable; and secondly, the Board concluded that allowing the city’s petition would discourage efforts to improve the environment, and thus, would not be consistent with the statutory purpose of restoring, maintaining, and enhancing the purity of the State’s waters.

On appeal the city raises two issues: (1) whether the Board acted arbitrarily, capriciously, or unreasonably in determining that the city had not proven it was technically infeasible or economically unreasonable to comply with the Board regulation prohibiting overflows from sanitary sewers; and (2) whether the Board acted arbitrarily, capriciously, or unreasonably in its consideration of environmental factors in view of the statutory purposes of the Act.

Initially, we note that it is not for this court to determine whether the Board’s action was wise, or even if it is the most reasonable action based on the record. (See Massa v. Department of Registration & Education (1987), 116 Ill. 2d 376, 507 N.E.2d 814.) The Board is made up of technically qualified individuals, and its technical determinations must be upheld unless arbitrary and capricious. (Central Illinois Public Service Co. v. Pollution Control Board (1987), 116 Ill. 2d 397, 507 N.E.2d 819.) Moreover, in considering whether or not to adopt proposed site-specific relief, the Board is statutorily required to take into account the existing physical conditions, the character of the area of surrounding land uses, zoning classifications, the nature of the existing receiving body of water and the technical feasibility and economic reasonableness of measuring or reducing the particular type of pollution. (Ill. Rev. Stat. 1987, ch. 1111/2, par. 1027(a).) Upon our review of the record, we conclude the Board’s determination that the city failed to demonstrate compliance is technically infeasible and economically unreasonable is amply supported by the record.

The city first argues the Board’s decision was arbitrary, capricious, and unreasonable for compliance with the statute is technically infeasible. The city contends that in order to technically comply with the statute, the entire sewer system would have to be rebuilt, at a cost of $14 million, or the city would have to incur massive sewage back up and basement flooding. It is apparent that the heart of the city’s argument is that technically feasible methods of preventing overflows are economically unreasonable. Therefore, the Board properly determined that technical feasibility is not an issue in this proceeding.

The city next argues that the Board’s decision was arbitrary and capricious because it is economically unreasonable to rebuild its entire sewer system. The city asserts they have two alternatives; either rebuild the entire sewer system at a price of $14 million, or to accept the fact that raw sewage will back up into many basements in the city following heavy precipitation. The city maintains that it is unreasonable for a city of approximately 7,000 citizens to spend $14 million dollars on a new sewer system in order to eliminate occasional bypassing which has little detrimental environmental impact on the waterways.

Counsel for the Illinois Environmental Protection Agency (IEPA) submitted comments in opposition to the city’s petition. The IEPA based its opposition to the petition on, among other things, the city’s failure to submit flow data for any of the discharge points and the city’s failure to submit compliance alternatives to the Board. The IEPA opposes the allowing of discharges into waterways that are of poor water quality because such discharges are not consistent with the restoration and enhancement principles of section 11(b) of the Act. The IEPA recommended that the city continue its recent efforts to find infiltration and inflow sources in lieu of site-specific relief.

The Board agreed with the IEPA’s assessment of the situation. The Board noted that the city failed to submit sufficient alternatives to the two alternatives posed. After reviewing the record, it is evident that the Board did.not act arbitrarily and capriciously in making this determination.

The city’s final argument is that the site-specific relief should be granted because the overflows and bypasses cause little or no adverse environmental effects. The city asserts the stream assimilation study, prepared on its behalf, indicates that upstream and downstream water samples were not adversely affected by the overflows and bypasses. The study indicates the water stream quality standard is no better than and in some circumstances worse than the downstream quality beyond the bypasses. The city directs the court’s attention to section 304.103 of the Illinois Administrative Code, which states in part: “[I]t is not the intent of these regulations to require users to clean up contamination caused essentially by upstream sources or to require treatment when only traces of contaminates are added to the background.” (35 Ill. Adm. Code §304.103 (1985).) This provision, however, is not determinative of the issue at hand. We note that what the city essentially argues is that since pollution of the water already occurs from sources in addition to the city, the city should be given site-specific relief. We disagree. The General Assembly passed the Act in order to overcome this mentality and granting site-specific relief defeats the legislative purpose of the Act.

The Board determined that if it granted site-specific relief before the city depleted its opportunities to eliminate infiltration and investigate other compliance plans, the city would lose its incentive to pursue these options and the potential for environmental improvement would be forfeited. We agree with the Board’s decision and also note that the city’s petition seeks relief of a permanent nature, in contrast to the city’s previous request for a variance as temporary relief from section 306.304 of the Board’s water pollution regulations. The record shows, moreover, such permanent relief has never been granted for sanitary sewer overflows.

This court does not find the Board’s decision on this issue to be arbitrary and capricious. The legislature passed the Act to “restore, protect and enhance the quality of the environment.” (Ill. Rev. Stat. 1987, ch. 1111/2, par. 1002(b).) There is no hidden legislative purpose to be gleaned from the statute. The purpose of the Act is to keep the waters of this State clean. We appreciate the great expense the city might incur if it replaces its entire sewer system, and we applaud the city’s recent efforts in detecting the whereabouts of infiltration and inflow sources. This court is not persuaded, however, that this case warrants a site-specific exemption to the sewer overflow standard set forth in section 306.304 of the Board’s water pollution regulations. 35 Ill. Adm. Code §306.304 (1985).

We conclude, therefore, that the decision of the Board was not arbitrary and capricious. Consequently, for the reasons stated herein, we hereby affirm the Board’s order denying the city’s petition.

Affirmed.

SCOTT and BARRY, JJ., concur.


source: Caselaw Access Project

author: JUSTICE WOMBACHER

license: Public Domain

text:
    JENNIFER ANNEN, by her Mother and Next Friend, Linda Annen, Plaintiff-Appellant, v. THE VILLAGE OF McNABB, Defendant-Appellee.
    Third District
    No. 3—89—0070
    Opinion filed January 4, 1990.
    Scott J. Ganassin, of Peter F. Ferracuti & Associates, of Ottawa, for appellant.
    T. Donald Henson and Jonathan F. Brandt, both of Herbolsheimer, Lannon, Henson, Duncan & Reagan, P.C., of La Salle, for appellee.
   JUSTICE WOMBACHER

delivered the opinion of the court:

Plaintiff Jennifer Annen filed a two-count complaint against defendant Village of McNabb, a municipal corporation, for personal injuries sustained while using a restroom located within Coleman Memorial Park. Coleman Memorial Park is located in, owned and controlled by the defendant. Subsequently amended, count I of the complaint alleged negligence on the part of the defendant in maintaining the restroom. In the alternative, count II alleged willful and wanton conduct by the defendant.

Defendant filed a motion to dismiss count I, contending that the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1987, ch. 85, par. 1 — 101 et seq.) (hereinafter Tort Immunity Act) limited plaintiff’s action to one alleging willful and wanton conduct. The trial court agreed with the defendant and dismissed count I of the amended complaint. Plaintiff appeals.

The record reveals that on June 16, 1987, the plaintiff, who was six years of age at the time, was at the park watching a baseball game. At some point the plaintiff left the baseball game. She travelled to a building located "within the park, a building that solely housed restroom facilities. After entering the women’s restroom, plaintiff leaned upon a sink. The sink immediately fell from the wall, seriously injuring her.

The issue presented is whether a local public entity is exempt from liability in ordinary negligence to one injured in a restroom building located in a public park.

The Tort Immunity Act provides:

“§3 — 106. Neither a local public entity nor a public employee is liable for an injury where the liability is based on the existence of a condition of any public property intended or permitted to be used for recreational purposes, including but not limited to parks, playgrounds, open areas, buildings or other enclosed recreational facilities, unless such local entity or public employee is guilty of willful and wanton conduct proximately causing such injury.” Ill. Rev. Stat. 1987, ch. 85, par. 3—106.

Plaintiff maintains that, since the Tort Immunity Act is in derogation of the common law, it must be strictly construed against public entities. Plaintiff focuses on the restroom building itself, contending that a freestanding restroom building does not come within the purview of section 3 — 106 because the building is not intended or used for recreational purposes. Plaintiff argues that since section 3 — 106 is not applicable to this situation, the plaintiff need only prove that the defendant acted negligently rather than with willful and wanton conduct.

In support of her position, plaintiff urges this court to adopt the holding in Larson v. City of Chicago (1986), 142 Ill. App. 3d 81, 491 N.E.2d 165. In Larson a roller skater was injured on a public sidewalk located within a residential neighborhood. The defendant argued that since the sidewalk was being used for recreational purposes, section 3 — 106 was applicable and the plaintiff was required to allege willful and wanton conduct on the part of the defendant. The court rejected this argument, holding that this would be an unwarranted, expansive interpretation of section 3 — 106.

We find the plaintiff’s argument unpersuasive and Larson distinguishable from the instant case.

The primary rule of statutory construction is to ascertain and effectuate the legislature’s intent. (In re Marriage of Logston (1984), 103 Ill. 2d 266, 469 N.E.2d 267.) The purpose of section 3— 106 is to encourage the development and maintenance of parks, playgrounds and similar areas. (Beckus v. Chicago Board of Education (1979), 78 Ill. App. 3d 558, 560, 397 N.E.2d 175.) A restroom facility located within a park is a part of the park. While a restroom building itself is not intended to be used for recreational purposes, it allows a park user to continue using the park without having to leave the park to use restroom facilities. This increases the usefulness of the park and advances the legislative purpose.

The instant case is distinguishable from Larson. There is a difference between sidewalks located in residential neighborhoods and restrooms located within public parks. “Under common law principles, it has long been held that a municipality [has a duty] to maintain its streets and sidewalks in a reasonably safe condition for the amount and kind of travel which may be fairly expected upon them.” (Larson, 142 Ill. App. 3d at 84.) The court in Larson did not want to upset this tradition simply because one injured on a sidewalk was doing something recreational in nature.

For the foregoing reasons we affirm the dismissal of count I of plaintiff’s amended complaint entered by the circuit court of Putnam County.

Affirmed.

HEIPLE, P.J., and STOUDER, J., concur.


author: PRESIDING JUSTICE HEIPLE

text:
    CLIFFORD C. STEICHEN, JR., et al., Plaintiffs-Appellants, v. ALAN G. LEMON, Superintendent of the Kankakee County Educational Service Region, et al., Defendants (Herscher Community Unit School District No. 2 et al., Appellees).
    Third District
    No. 3—89—0216
    Opinion filed January 4, 1990.

      Miller, Hall & Triggs, of Peoria (Michael J. Tibbs, of counsel), for appellants.
    Robbins, Schwartz, Nicholas, Lifton & Taylor, Ltd., of Chicago (Everett E. Nicholas, Jr., of counsel), for appellee Herscher Community Unit School District No. 2.
    No brief filed for other appellees.
   PRESIDING JUSTICE HEIPLE

delivered the opinion of the court:

This appeal involves the denial of a petition to detach certain territory from Herscher Community School District (hereinafter Herscher School District) and annex that territory to Dwight School District No. 232 (hereinafter Dwight School District). On July 1, 1988, R.U.C.E. Community Unit School District No. 3 (hereinafter R.U.C.E. School District), a rural school district suffering from declining enrollment, was dissolved and was annexed to Herscher School District. The plaintiffs, who reside in a portion of former R.U.C.E. School District located in or near Campus, Illinois (hereinafter Campus Territory), petitioned to detach the territory in which they reside from Herscher School District and annex it to Dwight School District. A joint hearing was held on the detachment petition on July 20 and 25, 1988, before six regional boards of school trustees, pursuant to section 7 — 6 of the Illinois School Code (Ill. Rev. Stat. 1987, ch. 122, par. 7 — 6). At the conclusion of this hearing, the board of school trustees of the La Salle, Iroquois, and Livingston County educational service regions voted to approve the detachment. The board of school trustees of the Kankakee, Ford/Champaign and Grundy/Kendall educational service regions, however, voted to deny the detachment. Since the regional boards failed to enter a joint order either granting or denying the petition, regional superintendent of Kankakee County, Alan G. Lemon, entered an order denying the detachment petition in accordance with section 7 — 6 of the Illinois School Code (Ill. Rev. Stat. 1987, ch. 122, par. 7 — 6). Thereafter, the plaintiffs sought administrative review of the order denying the petition, and the circuit court affirmed the administrative order below.

The sole issue on appeal is to determine whether the administrative order denying the detachment of the Campus Territory from Herscher School District and the annexation of that territory to Dwight School District was against the manifest weight of the evidence. The nature of this issue compels this court to review the evidence presented to the hearing board and to determine if the hearing board properly evaluated the detachment petition in accordance with the Illinois School Code and with applicable case law. The evidence produced at the hearing can be categorized into four principal groups: (1) testimony of witnesses in favor of the detachment petition; (2) testimony of witnesses against the detachment petition; (3) evidence regarding the educational programs of both school districts; and (4) the economic impact that would result to the two school districts if detachment did occur.

The town of Campus is located approximately 12 miles from the town of Herscher and approximately 11 miles from the town of Dwight. Campus and Dwight are located in Livingston County, and Herscher is located in Kankakee County. The plaintiffs are 122 persons, who constitute approximately 70% of the 175 registered voters residing within Campus Territory. The petition by the plaintiffs was filed under section 7 — 2 of the Illinois School Code, which authorizes a petition by “two-thirds of the legal voters residing in any territory proposed to be detached from one or more districts.” (Ill. Rev. Stat. 1987, ch. 122, par. 7 — 2.) During the hearing, the regional boards heard the following testimony by witnesses in favor of annexing the Campus Territory to Dwight School District.

Alan Montalto, a former R.U.C.E. school board member with two school-aged children, testified that he has strong social and business ties with the town of Dwight and that he has no similar identification with the town of Herscher. Mr. Montalto further stated that he preferred that his children attend Dwight School District since, “Campus area kids will be in a position to receive more personal attention at the Dwight Schools since classes are not overcrowded.” Mr. Montalto stated that, as a R.U.C.E. school board member, he voted for the annexation to Herscher School District because it was educationally advantageous for the annexation to occur. Clifford Steichen, chairman of the petition committee who has one school-aged child, also testified that he prefers Dwight School District because of the social and economic ties to the town of Dwight. Mr. Steichen stated that he shops, banks, and goes to the doctor and dentist in Dwight. Mr. Steichen admitted that he did not originally contest the annexation to Herscher School District since he saw the financial reasons behind the annexation.

Pegg Patchett, who has four school-aged children, additionally stated that she identified with the town of Dwight rather than the town of Herscher. Mrs. Patchett shops for groceries, buys farm supplies, and goes to the doctor and dentist in Dwight. Mrs. Patchett stated that she is in Dwight twice a week, whereas she goes to Herscher only once a year. Mrs. Patchett further stated that she is aware that Dwight School District has a higher tax rate than Herscher School District. Kevin Earing, who has two school-aged children, testified that unless the proposed detachment is approved, parents with more than one child will at some point have children attending grades kindergarten through sixth at a building located in the town of Reddick, while other children are attending junior high and high school in the town of Herscher. According to Mr. Earing, this will make it more difficult for him to keep up with his children’s activities if those activities are occurring in two different communities. Mr. Earing further stated that since both of the Dwight schools are in the same community, he prefers that his children attend Dwight School District.

The regional boards additionally heard the following testimony by witnesses not in favor of detaching Campus Territory from Herscher School District. Eldon Brunner, a former R.U.C.E. school board member, stated that he worked on a subcommittee that studied all of the school districts adjacent to the R.U.C.E. School District, including Dwight School District, in order to compare the alternatives in case the R.U.C.E. School District was dissolved. Mr. Brunner voted for the annexation to Herscher School District because it offered the “best overall curriculum” and because it offered the “best education that our taxes could provide.”

James Girard, a member of the Herscher school board, testified that the school board would not agree to the detachment of Campus Territory because the possible loss of student population might result in the closure of Reddick Grade School. Michelle Schott, who presently has two school-aged children attending Reddick Grade School, stated that the unanimous decision of the R.U.C.E. school board should not be tampered with. Mrs. Schott testified that, in her opinion, the Herscher School District provided better educational opportunities than Dwight School District.

Likewise, Barb Mathison, a Campus Territory resident with two school-aged children, testified:

“My husband and I are residents and parents who are included in the detachment area. We feel the decision made on this detachment is one that should be based on curriculum and educational opportunities, and not based on political boundaries, local economics, and mere conveniences. Therefore, after studying the curriculum at both institutions we know that the R.U.C.E. School Board made the right decision in choosing the Herscher School District because it offers a broader curriculum and more class offerings.
Also, because one of us is employed in Dwight does not alter our feelings on what is best for our children’s education, and the matter of convenience certainly does not outweigh Herscher’s educational opportunities.”

Matt Foley, a 16-year-old student at Herscher High School who is a Campus resident, also stated that he preferred the Herscher School District. Matt Foley gave a detailed statement comparing the course offerings of Herscher School District and Dwight School District and concluded his statement by stating:

“I believe that the Regional Board Members should also oppose the Campus Detachment Petition because it is not in the best interest of the students. Since Herscher offers a superior curriculum, no significant curriculum advantage is served by disrupting the children in the R.U.C.E. District and R.U.C.E.Herscher annexation.”

The substance of the evidence regarding the educational opportunities available at the two school districts reveals that both Herscher and Dwight School Districts are fully accredited by the North Central Association and recognized by the Illinois State board of Education. Larry Copes, superintendent of the Dwight School District, testified on direct examination that after reviewing the report cards of both school districts, he felt that both education programs were “relatively similar.” On cross-examination, after comparing the composite scores for specific courses, Mr. Copes stated that Herscher’s scores on the report card were better than Dwight’s. The evidence was undisputed that Herscher School District provides more course offerings in almost every academic field at the high school level and that the school district offers more extracurricular activities. Larry Jacobsen, superintendent of Herscher School District, testified regarding the specific extracurricular activities offered at both the junior and senior high levels. Mr. Jacobsen further stated that Herscher School District provides transportation through activities buses for those students staying after school to participate in extracurricular activities.

The regional boards also heard evidence regarding enrollment statistics at both of the school districts and the pupil-teacher ratio at both of the school districts. The evidence showed that both school districts could readily absorb the students from Campus Territory. The pupil-teacher ratio at Herscher High School is 16.2 and at Dwight High School is 13.2. The pupil-teacher ratio at Dwight Grade School is 19.3, while the average at the three Herscher grade schools, including Reddick Grade School, is 18.3.

Evidence was also presented with regard to the special education services offered by each school district. Dwight School District belongs to the Livingston County Special Services Cooperative, and most special education services offered through this cooperative are at sites outside the Dwight School District. Dwight Grade School has four full-time special education teachers, and Dwight High School has one full-time special education teacher.

Herscher School District employs a full-time director of special education, as well as a full-time psychologist, social worker, speech therapist, school nurse, 17 special education teachers and five aides. Most of Herscher School District’s special education services are provided in district.

Several parents having children in need of special education services testified in opposition to the proposed detachment. Glenda Turner testified that if the detachment were granted, her son would be placed in special education classes in Dwight that were both overcrowded and understaffed. Another parent, James Smally, voiced concerns about Dwight’s ability to meet the needs of his son, who requires demanding and intensive special education services. Mr. Smally expressed the view that a six-year, productive relationship with the Kankakee Area Special Education Cooperative would be undermined if the detachment were to occur.

Herscher School District further contends that if detachment of the Campus Territory from Herscher is granted, the number of students at Reddick Grade School will decrease to the point that serious consideration would have to be given to closing the building. Reddick Grade School is located in a portion of former R.U.C.E. School District which includes the town of Reddick and the town of Union Hill, but is separate from Campus Territory. Closing Reddick Grade School would result in a reduction in force of five certified and three non-certified Herscher employees. Herscher also argues that nondetachment Herscher students will suffer if Reddick Grade School closes, since they will have to be bused to another Herscher grade school farther from home.

The last category of evidence produced, which the regional boards was required by statute to consider, was the division of funds and assets which would result from a change in school district boundaries. If the proposed detachment petition is granted, the two Dwight schools stand to gain over $178,000 in property tax revenue, while Herscher will lose $130,000 in property tax revenue. The difference in these amounts stems from the fact that Dwight School District’s property taxes are approximately $1.03 per hundred dollars of equalized assessed valuation higher than Herscher School District’s. Further, Herscher School District would lose some State aid, but in turn, would not have to pay the expense of educating those students attending Dwight School District. At the time of hearing, Herscher School District had a positive operating fund balance of at least $1,500,000.

Immediately following the presentation of the aforementioned evidence and closing arguments, the separate six regional boards of school trustees each met to discuss and weigh the evidence. Thereafter, by virtue of the split vote between the regional boards, an administrative order denying the detachment petition was entered by the regional superintendent of schools for the Kankakee educational service region. The superintendent’s order was mandated by section 7 — 6 of the Illinois School Code, which provides that, “If the regional boards of school trustees fail to enter a joint order either granting or denying the petition, the regional superintendent of schools for the educational service region in which the joint hearing is held shall enter an order denying the petition ***.” Ill. Rev. Stat. 1987, ch. 122, par. 7 — 6.

Subsequently, the trial court affirmed the administrative order below and filed a memorandum explaining the reasoning behind the decisión. The trial court first found:

“It is the court’s opinion that both districts would provide a good and roughly equivalent education, although the balance tips slightly in favor of Herscher. In any event, if the decision under review is thought to involve a finding favorable to Herscher, the court is unable to conclude such a finding is contrary to the manifest weight of the evidence.”

The trial court then concluded “the evidence does not show any economic loss to Herscher severe enough to prevent detachment.” Finally, the trial court, after reviewing the applicable statutory standard for detachment proceedings and the relevant case law, held:

“On both academic standards and extracurricular activities the evidence, on balance, favors Herscher. It is the court’s opinion that even the growing trend towards accommodating the wishes of the parents should not result in a reversal of the Regional Superintendent’s order under the facts of this case.”

We agree with the trial court’s findings and accordingly affirm.

Initially, it is important to point out that in reviewing the administrative order of the regional boards, this court should not set aside their determination unless it is contrary to the manifest weight of the evidence. (Board of Education v. Regional Board of School Trustees (1982), 89 Ill. 2d 392.) Notwithstanding, the “rule which accords a prima facie validity to administrative decisions does not relieve a court of the important duty to examine the evidence in an impartial manner and to set aside an order which is unsupported in fact.” (Oakdale Community Consolidated School District No. 1 v. County Board of School Trustees (1957), 12 Ill. 2d 190, 195.

Section 7 — 6 of the School Code establishes statutory guidelines for the evidence to be considered by regional boards of school trustees when hearing petitions to change school boundaries. In pertinent part, the statute reads as follows:

“The regional board of school trustees, or regional boards of school trustees in cases of a joint hearing shall hear evidence as to the school needs and conditions of the territory in the area within and adjacent thereto and as to the ability of the districts affected to meet the standards of recognition as prescribed by the State board of Education, and shall take into consideration the division of funds and assets which will result from the change of boundaries and shall determine whether it is to the best interests of the schools of the area and the educational welfare of the pupils that such change in boundaries be granted ***.” Ill. Rev. Stat. 1987, ch. 122, par. 7-6.

Based upon this statutory language, the Illinois Supreme Court has adopted the following rule: the welfare of the affected districts and their pupils as a whole must control, and such petitions should be granted only where the benefit derived by the annexing and affected areas clearly outweighs the detriment resulting to the losing district and the surrounding community as a whole. (Oakdale Community Consolidated School District No. 1 v. County Board of School Trustees (1957), 12 Ill. 2d 190.) As was noted by this court in several recent cases, the Oakdale standard has been substantially built upon since its inception. (Wirth v. Green (1981), 96 Ill. App. 3d 89; City National Bank v. Schott (1983), 113 Ill. App. 3d 388.) Most importantly, for purposes of this appeal, the courts have looked to several additional factors in determining the educational welfare of the pupils involved.

On appeal, the thrust of the plaintiffs’ argument centers around the alleged failure of the regional boards to consider the “whole child” factor and the “community of interest” factor when evaluating the educational welfare of the Campus Territory students. Consequently, the plaintiffs contend that the administrative order denying the detachment petition and the subsequent trial court ruling were against the manifest weight of the evidence.

In Board of Education v. Regional Board of School Trustees (1982), 89 Ill. 2d 392, the Illinois Supreme Court reviewed the “whole child” and “community of interest” factors:

“The ‘whole child’ factor and the closely related ‘community of interest’ factor are not improper considerations in determining the wisdom or unwisdom of shifting the boundaries of school districts. The former factor recognizes that extracurricular participation in social, religious and even commercial activities is important in a child’s development as a beneficial supplement to the child’s academic involvement. (School District No. 106 v. County Board of School Trustees (1964), 48 Ill. App. 2d 158.) Too, in annexation-application hearings it is proper to ascertain whether the petitioning area is identified with the school district and the community to which annexation is requested. If a child attends school in his natural community it enhances not only his educational opportunity but encourages his participation in social and other extracurricular activities that figure importantly in the ‘whole child’ idea.”

In Board of Education of Golf School District No. 67, the supreme court, after reviewing evidence involving the physical proximity of the two Cook County school districts to the petitioning residents and the extracurricular programs offered by the competing school districts, found that the regional board’s decision to grant annexation was not contrary to the manifest weight of the evidence.

Similarly, this court applied the “whole child” and “community interest” factors in reviewing a disconnection petition. (City National Bank v. Schott (1983), 113 Ill. App. 3d 388.) In Schott, this court evaluated these factors by comparing the quality and physical proximity of both schools and the extracurricular facilities and programs offered by the competing school districts. Here, the court found that the close proximity of the Bradley School District to the residents and the availability of extracurricular programs were proper considerations in granting the disconnection petition. City National Bank, 113 Ill. App. 3d at 394.

This court finds that there are several distinctions between the evidence produced in this case and the evidence presented in either Board of Education of Golf School District No. 67 or Schott. First, Campus is a small rural community situated about an equal distance from the town of Herscher and the town of Dwight. In Schott, the territory to be annexed was within the corporate limits of the Village of Bradley, and in Board of Education of Golf School District 67, the territory to be annexed was within Cook County. Thus, Campus is not in close proximity to the schools to be annexed, as was the situation in the aforesaid cases. Second, unlike either of the aforementioned cases, the plaintiffs never identified what extracurricular activities are offered at the Dwight School District, nor did they address the specific activities that might be offered to Campus Territory students by churches, park districts, or other organizations in the town of Dwight. In both Board of Education of Golf School District No. 67 and Schott substantial evidence was produced regarding such activities. Therefore, this court finds that the plaintiffs failed to present substantial evidence on the “whole child” and “community of interest” factors.

The plaintiffs argue, however, that the fact that 70% of Campus Territory residents signed the detachment petition, along with the testimony of witnesses in favor of detachment, is sufficient evidence to show a community of interest with the town of Dwight. The plaintiffs maintain that because of the convenience provided by attending school in one’s natural community, participation in curricular and extracurricular activities will be enhanced. Although personal convenience of parents is a consideration, this alone is insufficient to overturn the decision of the regional boards.

Since Oakdale, several appellate courts, including this court, have given substantial weight to the wishes of the residents of the detachment area. (Wirth v. Green (1981), 96 Ill. App. 3d 89.) Nevertheless, these cases have involved “situations where a transfer of territory from one school district to another would result in no harm financially or educationally to either district or its pupils.” (Wirth, 96 Ill. App. 3d at 91.) In the instant case, we agree with the trial court that it was not against the manifest weight of the evidence for the regional boards to find that Herscher School District offered a better educational program for the Campus Territory students.

Here, the regional boards could have looked at the curriculum differences between the two school districts, the testimony of the witnesses, and the distinctions in extracurricular programs and found that it was in the best interest of the students to remain in Herscher School District. Herscher School District presented specific testimony about their extracurricular program and their witnesses testified about the distinctions in course offerings between the two school districts. On the other hand, the plaintiffs’ witnesses testified for the most part on matters of convenience, i.e., they had more social and business ties to the town of Dwight. While we recognize that the parents’ commercial and social ties to the town of Dwight are not improper considerations, those considerations should not control if there is sufficient evidence to show that Herscher School District provides better educational and extracurricular opportunities.

A further reference to the language of section 7 — 6 is appropriate at this point: “The regional boards *** shall hear evidence as to *** the educational welfare of the pupils ***.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 122, par. 7—6.) As was stated by the trial court: “The educational welfare of the pupils is a salient factor in the outcome, and it can hardly be said that their welfare would be improved by transferring them to a district with even slightly inferior programs and facilities.” In reaching our holding, we are cognizant of the fact that it is not the role of the judiciary to sit as a super school board to analyze the complex factors involved in a determination of what is best for the educational welfare of the students. Rather, we must determine if the decision of the regional boards was against the manifest weight of the evidence and if the proper legislative standards were complied with. We cannot find that the regional boards’ decision was unsupported in fact. Further, the statutory guidelines were followed. Accordingly, we affirm.

Affirmed.

BARRY and STOUDER, JJ., concur.


author: JUSTICE SCOTT

text:
    GLEN BOWERS et al., Plaintiffs-Appellants, v. ALLSTATE INSURANCE COMPANY et al., Defendants-Appellees.
    Third District
    No. 3—89—0197
    Opinion filed December 29, 1989.
    Chester C. Fuller, of Peoria, for appellants.
    Robert Jennetten, of Quinn, Johnston, Henderson & Pretorius, of Peoria (John J. Waldman, of counsel), for appellees Allstate Insurance Company and Allstate Indemnity Insurance Company.
   JUSTICE SCOTT

delivered the opinion of the court:

Plaintiffs appeal from a judgment entered on February 28, 1989, wherein the circuit court granted defendants, Allstate Insurance Company and Allstate Indemnity Insurance Company’s (both referred to hereafter as Allstate unless otherwise indicated), motion for summary judgment. The procedural issue on appeal is whether the circuit court erred in granting Allstate’s motion. The substantive issue is whether plaintiffs were covered by an insurance policy issued by Allstate on November 8, 1985.

Plaintiff Glenn Bowers submitted an application for an automobile insurance policy on August 18, 1985, through a local Allstate agent. At that time, Mr. Bowers was given an estimated premium quote of $239 covering a six-month period, and Bowers paid $60 at that time to bind the insurance. There is no evidence in the record as to what type of payment plan Mr. Bowers was to be placed on. Mr. Bowers’ application for insurance listed only one traffic violation, but a subsequent check by Allstate with the Secretary of State revealed that he, in fact, had three traffic violations. Allstate, therefore, appears to have unilaterally placed Mr. Bowers in the high risk category, and a policy was issued to Mr. Bowers by Allstate Indemnity Insurance Company rather than Allstate Insurance Company at a substantially higher premium rate than the rate quoted to Mr. Bowers by the local Allstate insurance agent. Allstate then sent to Mr. Bowers an insurance declaration page indicating a policy period of August 18, 1985, through February 18, 1986, and a premium rate of $465.70 No insurance policy, however, accompanied the declaration page sent to Mr. Bowers at this time nor did Mr. Bowers receive any explanation as to why the premium rate was approximately double the estimated rate quoted him by the local Allstate agent.

Mr. Bowers made no additional payments to Allstate, and a notice of cancellation was eventually sent by Allstate to Mr. Bowers indicating that a balance of $176.85 was due and that the policy would be cancelled effective October 14, 1985, unless the past-due amount was paid on or before that date. On October 20, 1985, Allstate received a payment of $74.85 from Mr. Bowers, and Allstate then apparently reinstated Mr. Bowers’ policy effective October 20, 1985, and a per diem credit was given Mr. Bowers for the six-day period the policy was not in effect. The record is void, however, of any notice being sent to Mr. Bowers explaining that his policy was can-celled and subsequently reinstated with a credit given for the noncovered period from October 14 to October 20, 1985. On October 25, 1985, Allstate sent another notice of cancellation to Mr. Bowers indicating that unless payment of $99.40 was received by November 7, 1985, his policy would be cancelled as of that date. No payment was received by the time specified in the notice, and Allstate cancelled the policy on November 7, 1985. On November 8, 1985, Mrs. Bowers was involved in an accident. On that same day, Mr. Bowers tendered a check to Allstate in the amount of $75 which was received by Allstate on November 14, 1985. Allstate again accepted this payment and reinstated the policy effective November 12, 1985, giving Mr. Bowers a per diem credit of $12.50 for the time the policy was out of force. Allstate subsequently sent Mr. Bowers a notice advising him of the policy lapse and credit given.

Mr. Bowers advised Allstate of the accident on November 9, 1985, by calling Allstate’s toll-free number and at that time was advised to take his car to Allstate’s claim office to have it appraised for damages. Although Mr. Bowers asked, Allstate could not inform Mr. Bowers whether coverage was available for his car.

Plaintiffs later made a demand to Allstate that it defend Mrs. Bowers in any lawsuit arising out of the accident on November 8, 1985, and pay for any damages. Allstate refused, and plaintiffs brought this suit for declaratory judgment.

The Illinois Code of Civil Procedure, section 2 — 1005, states that a motion for summary judgment “shall be rendered without delay if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Ill. Rev. Stat. 1987, ch. 110, par. 2—1005(c).) Plaintiffs’ primary argument in this case is that Allstate waived its right to cancel the policy by accepting late payments after the cancellation date. Allstate, on the other hand, argues that timely notice was sent to Mr. Bowers informing him that unless payment was made his policy would be cancelled. Mr. Bowers, therefore, cannot now be heard to say that coverage should be provided when his lack of timely payments was the reason for the policy cancellation. We find Allstate’s position troubling for three reasons. First, although Allstate claims that the policy issued to Mr. Bowers clearly states that Allstate reserved the right to cancel the policy for failure to pay the premiums when due, the evidence is unclear as to when Mr. Bowers received the policy. It seems apparent the policy was not sent with the declaration page. Moreover, the policy itself speaks nothing of Allstate having the authority to cancel the policy, accept late payments, and then reinstate the policy from the date the late payment was received. The policy speaks only of Allstate having the right to cancel the policy for nonpayment. In fact, the cancellation notice sent to Mr. Bowers was silent regarding Allstate’s practice of cancelling and reinstating policies. Second, it is also an apparently disputed fact that plaintiffs informed Allstate of the accident prior to Allstate receiving the late payment from Mr. Bowers. In this regard, there are numerous Illinois cases that consider acceptance of a premium after receiving an intervening notice of loss a determining factor of whether the insurance company has waived its right to cancel or lapse a policy. (See Van Hulle v. State Farm Mutual Automobile Insurance Co. (1969), 44 Ill. 2d 227, 254 N.E.2d 457; Horace Mann Insurance Co. v. Brown (1973), 13 Ill. App. 3d 330, 300 N.E.2d 20.) Finally, Allstate cannot meritoriously rely on the argument that Mr. Bowers previously had his policy cancelled for lack of a timely payment and then later prospectively reinstated when late payment was received since the record is void of any evidence that Mr. Bowers was informed of his policy having been out of force prior to the time period in question.

Allstate relies on the cases of Butt v. State Farm Mutual Automobile Insurance Co. (1982), 107 Ill. App. 3d 68, 437 N.E.2d 346, and Gurley v. State Farm Mutual Automobile Insurance Co. (1981), 101 Ill. App. 3d 619, 428 N.E.2d 916, for the proposition that no waiver exits in this case. The holdings in Butt and Gurley, however, are each based on the particular facts involved after the respective courts had the opportunity to consider the evidence at trial. Moreover, the notices sent to the respective insureds in each case contained unequivocal language about what would happen if a payment was made after the cancellation date or grace period. Such unequivocal language is not contained within the notices sent to Mr. Bowers by Allstate in the present case. No mention is made in the Allstate cancellation notice as to how a payment received after the cancellation date will be treated.

In light of the general policies that forfeiture of an insurance contract for nonpayment of a premium is not favored (Van Hulle, 44 Ill. 2d 227, 254 N.E.2d 457), and unclear provisions in an insurance contract are to be strictly construed against the insurer (Community State Bank v. Hartford Insurance Co. (1989), 187 Ill. App. 3d 110, 542 N.E.2d 1317), plaintiffs ought to be afforded the opportunity to present their case as there appear to be contested facts concerning the waiver issue which do not solely involve contract interpretation. We likewise believe there is some merit to plaintiffs’ theory that they are entitled to insurance on a per diem basis in light of certain deposition statements made by an Allstate agent that insurance coverage is determined on a per diem basis in situations when less than the full premium is received and accepted by Allstate. It is also indisputable that credits given by Allstate in a lapse situation are given on a per diem basis. Whether or not plaintiffs are entitled to coverage is, at least in part, a question of fact to be resolved at trial.

We pass no judgment as to the merits of plaintiffs’ claims in this case, but believe there are certain contested material facts requiring resolution by trial. We therefore reverse the circuit court’s order of February 28, 1989, granting Allstate’s motion for summary judgment and remand the cause for further proceedings.

Reversed and remanded.

BARRY and STOUDER, JJ., concur.


author: JUSTICE McNAMARA

text:
    MARION LUDWIG, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Ottawa Industrial Sand Company, Appellee).
    Third District (Industrial Commission Division)
    No. 3—88—0852WC
    Opinion filed September 26, 1989.
    Rehearing denied February 5, 1990.

      Mark A. Schindler and Peter F. Ferracuti, both of Law Offices of Peter F. Ferracuti, P.C., of Ottawa, for appellant.
    Michael E. Rusin, of Stevenson, Rusin & Friedman, Ltd., of Chicago, for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

Petitioner, Marion Ludwig, widow of the deceased employee Harold Ludwig, appeals from the Industrial Commission’s (Commission’s) denial of worker’s compensation benefits for a fatal myocardial infarction decedent suffered allegedly as a result of his employment with respondent Ottawa Industrial Sand Company. An arbitrator found a causal connection between the death and the work activities and awarded petitioner $356.41 per week until the period of 20 years has passed, or until $250,000 has been paid, whichever is greater, plus medical and burial expenses, and $9,440 for attorney fees. The Commission set aside the award, finding that petitioner failed to prove a causal connection. The circuit court of La Salle County confirmed the Commission’s decision. Petitioner appeals, contending that the Commission’s finding of no causal connection is against the manifest weight of the evidence.

Decedent worked as a maintenance foreman for respondent, where he had been employed for 25 years. Decedent’s last day of work was September 10, 1983. He died of heart failure on the following day. No autopsy was performed.

Three major issues arose: whether decedent suffered stress as a result of increased work pressures several months before his death; whether decedent suffered stress from unusually heavy physical exertions the day before his death; and whether petitioner proved causal connection between either type of stress and decedent’s death.

Witnesses for petitioner testified that from June through September 10, 1983, decedent carried extra responsibilities and suffered unusual stress at work.

Bob Savage, a co-worker, testified that during 1983 the maintenance employees had been doing more work with less manpower. Certain jobs had been eliminated, and the machinery broke down frequently. They were also short of men, especially during the week prior to decedent’s death. Decedent had complained about these problems to Savage.

Russ Myers, a co-worker, testified similarly. Decedent was pushing himself very hard and complained that there was too much work. Some days decedent tried to help Myers on physical jobs, but decedent would “get real short winded and have to sit down.” Myers saw such physical reactions once or twice a week.

Steve Hicks, a co-worker, testified that in September 1983 there were shortages and equipment shutdowns. Moreover, decedent assumed additional responsibilities because the other foreman was on vacation.

Donald Thompson, a maintenance clerk, gave a written statement to respondent that the week prior to his death, decedent was depressed and complained he did not feel he could do his job.

Petitioner testified that her husband was often fatigued during the six months prior to his death and complained of insufficient manpower at work. He worked six or seven days a week and was called to work at odd hours a dozen times during the last six months of his life. In the six weeks before his death, decedent worked four Saturdays.

Witnesses for respondent testified that from June through September 10, 1983, respondent’s workload had not increased. David De-Coursey, a co-worker, testified that the work load in the maintenance department during the week prior to decedent’s death was no different than it had been during the previous 13 years. David Kistenfeger, the supervisor of industrial relations, testified that there were more men working in September 1983 in relation to actual production than there were in 1985.

Witnesses for petitioner testified that on September 10, 1983, the day before his death, decedent exerted unusual physical efforts at work when he used an 80-pound pry bar to work on a 200- to 400-pound pump.

Savage testified that decedent showed an employee how to repair a pump, after which decedent sat down and said, “That’s it, I can’t do anymore.” Decedent’s face was drained of color, he was sweating, and his respiration was fast. Several months after decedent’s death, Savage signed a statement written out by the personnel director stating that on September 10, decedent seemed relaxed and showed no discomfort after removing the plate from the pump.

Rod Miller, a general repairman, gave a written statement to respondent that decedent took the propeller out of the tank by himself on September 10 and that “he was grabbing hold of his chest that day and his breathing wasn’t normal.”

Joe Harper, a general repairman, gave a statement to respondent that on the afternoon of September 10, decedent was sitting in the weld shop and said he didn’t feel very well.

Petitioner testified that on September 10, decedent came home from work and went right to bed, complaining of fatigue, pain in his stomach, and he had trouble catching his breath. He did not sleep well.

The September 11 emergency room report states that on that day decedent “collapsed at home after complaining of chest pain” and that he asked petitioner to call the rescue squad. Decedent died within an hour. The death certificate states that the cause of death was cardiopulmonary arrest due to acute arteriosclerotic heart disease.

According to the medical records, decedent suffered from several preexisting conditions. In 1971 he was hospitalized for coughing blood. In 1979, he was hospitalized for chest and arm pain and was diagnosed as having angina pectoris. In 1980, he saw Dr. Ghafoor for skipping heart beats. He also suffered from hypertension and had heart disease risk factors of cigarette smoking and a family history of heart disease. On September 7, 1983, decedent saw Dr. Ghafoor and complained of pain in his upper abdomen and lower chest, an irregular heart beat, and coughing up blood. Decedent declined Dr. Ghafoor’s recommendation that he be hospitalized for bronchial tests. Decedent also suffered from colon polyps and silicosis. There was no testimony that any of these factors alone caused his death, and many of the conditions were ruled out by all the doctors as having any possible connection with the cause of death.

In regard to causal connection, Dr. Robert Bettasso, a general surgeon, testified as an expert for petitioner that decedent’s death was in part precipitated by the stressful work situation during the several months before his death, or by the reported physical exertions on September 10, 1983. Both the physical and the mental stress could cause myocardial infarct.

Dr. Albert O’Berto, a surgeon and petitioner’s family doctor, testified similarly for petitioner. He stated that the months of stress and the September 10 incident could contribute to the myocardial infarction. Decedent had been under stress. The physical stress was the most obvious.

Dr. Louis McKeever testified as an expert for respondent regarding causal connection. He found the employment was not a “direct” cause of death because of the delay of one day between work and death. He also stated, however, that it is possible to suffer infarction one day and have the pain go away for some time. Dr. McKeever testified that the additional months of stress at work did not contribute to the heart problem because decedent had been doing the same basic job for many years. However, Dr. McKeever also testified that anxiety, frustration and emotional stress in the work environment could create an extra load on the heart.

Petitioner contends that the Commission’s finding of no causal connection between decedent’s death and his employment is against the manifest weight of the evidence.

The question of causal connection is one within the unique province of the Industrial Commission, and we will not disturb its finding unless it is contrary to the manifest weight of the evidence. Cook v. Industrial Comm’n (1988), 176 Ill. App. 3d 545, 531 N.E.2d 379.

The Commission found it particularly significant that Savage was impeached “by his statement three months after the alleged accident that Decedent was more relaxed that day than he had been previously and that he showed no sign of discomfort after knocking the plate off the pump. The Commission finds that Savage’s testimony lacked credibility and that Petitioner failed to prove an onset of symptoms associated with Decedent’s activities on September 10,1983.”

Questions regarding a witness’ credibility are generally left to the Commission to resolve. However, Savage was never impeached regarding the additional physical activities decedent performed the day before he died. In both statements, Savage said decedent exerted physical effort in removing the plate from the 200-pound pump. Thus the Commission’s characterization of the impeachment is not quite accurate. The key fact was not impeached.

More importantly, several witnesses testified without contradiction that decedent performed this task on September 10, one day before his death.

The Commission also states that because of Savage’s impeachment, petitioner failed to show an “immediate *** onset of symptoms after the September 10 exertion.”

Several witnesses supported Savage’s later statement that decedent showed signs of ill-health on September 10 and that decedent did heavy physical work that day. Harper described decedent’s ill-health that afternoon. Miller described decedent’s heavy work and stated that decedent was grabbing his chest and that his breathing was not normal. Savage consistently stated that decedent performed heavy work that day. Petitioner testified to decedent’s problems with fatigue, stomach pain and breathing problems immediately upon arriving home from work September 10.

The Commission rejected the opinions on causal connection offered by petitioner’s two medical experts and adopted “Dr. McKeever’s opinion that Decedent’s death could not be related to his employment” because, according to Dr. McKeever, the onset of symptoms was neither “immediate” nor “continuous.”

The evidence, however, even absent Savage’s testimony, demonstrated that decedent had performed heavy exertion and was sick immediately on September 10. Regarding causation, Dr. O’Berto testified for petitioner that the September 10 incident was the “most obvious” factor of stress contributing to the cause of death. Dr. O’Berto also testified that 48 hours could pass before the full extent of the infarct became apparent, depending on the degree of damage caused by the initial physical stress. Dr. Bettasso testified for petitioner that the September 10 physical stress could be a precipitating factor for acute myocardial infarction. Dr. Bettasso testified further that the cardiac disease is a process. For example, physical exertion could be a precipitating factor of acute myocardial infarction before the patient is aware of it. There could be a day between the stress and the rhythm disturbance. An EKG might not even manifest the infarct for one to three days.

Dr. McKeever offered self-contradictory testimony regarding whether an “immediate” onset of symptoms was necessary to show a causal connection to the cardiac arrest the next day. He first testified that it could not take 18 to 24 hours for infarctions to fully demonstrate themselves. “If there are [such infarctions], I don’t know about them.” Dr. McKeever went on to state on cross-examination, however, that the symptomatology could be periodic. “Right. That is possible. He could have an infarction the day before, the pain goes on away and he goes about his business and then — .” Dr. McKeever testified that such physical exertion followed by chest pains and fatigue which persisted to the next day “would qualify for being very suspicious of being an infarction.”

The Commission also found that petitioner failed to prove her alternative contention that the recent increase in work was a contributing causative factor in decedent’s death. Actually, all three physicians stated that the stressful work situation could have contributed to decedent’s death. Dr. Bettasso noted decedent’s “antecedent history of decreased work tolerance,” which can be a “precipitating factor of pre-existing disease.” Dr. O’Berto stated that decedent’s recent months at work showed “this man has been under stress,” and that the stress contributed to the cause of death.

Dr. McKeever initially testified that “it would be unlikely that the employment would be a direct cause of the death, being that the event occurred several hours to days since his last — since he was working.” Dr. McKeever explained that he believed “25 years of working in the same business doing relatively the same job in the same environment can no longer be considered an unusual event in that particular individual, and therefore, would not be a stressful situation. It is what he does everyday.” However, Dr. McKeever also testified that anxiety, frustration and emotional stress in the work environment could create an extra load on the heart.

Questions regarding contradictions in testimony are generally left to the Commission to resolve. However, notwithstanding Dr. MeKeever’s contradictory testimony, all three doctors stated that the long-term stress at work could contribute to the cause of death here.

We conclude that the Commission’s finding of no causal connection, either because there was no emotional stress at work, or because there was no “immediate” or “continuous” onset of symptoms between September 10 and 11, is against the manifest weight of the evidence.

We also note the Commission’s reference to decedent’s preexisting conditions. Clearly, decedent suffered from heart-related and other health problems for some time before his death. The week prior to his death he evidenced numerous symptoms of ill-being which the physicians believed could be indicators of cardiac disease. However, an autopsy was not performed, and therefore, none of the doctors could determine precisely whether, e.g., the prior bronchial or heart rhythm problems in any way contributed to the ultimate failure of the heart to function. Moreover, Dr. McKeever testified that the bronchial testing Dr. Ghafoor wished to perform in the hospital several days before decedent died was unrelated to heart disease. Thus, this basis of the Commission’s decision is unsupported by the evidence.

In addition, a preexisting heart condition does not preclude an award under the Worker’s Compensation Act (Ill. Rev. Stat. 1985, ch. 48, par. 138.1 et seq.). (Northern Illinois Gas Co. v. Industrial Comm’n (1986), 148 Ill. App. 3d 48, 398 N.E.2d 327.) It is only necessary to show that the stress of the employee’s work was one causative factor and need not exclude every other possible contributing factor. (Northern Illinois Gas Co. v. Industrial Comm’n (1986), 148 Ill. App. 3d 48, 398 N.E.2d 327.) Thus, the Commission’s finding of a preexisting condition certainly does not preclude an award.

We also must comment on the Commission’s statement that petitioner’s alternative theory was that decedent died partially as the result of silicosis. Petitioner maintains that “Silicosis is not an issue in this case ***.” The record supports petitioner’s view. Petitioner merely asked the treating physicians during depositions about the diagnosis of silicosis and whether it contributed in any way to the heart condition along with the job-related stress. Dr. Sanford Rabushka testified at a deposition for petitioner that the condition had been diagnosed from chest X rays, but petitioner never offered that deposition. Instead, respondent later offered the deposition despite petitioner’s failure to adopt the theory.

For the foregoing reasons, the judgment of the circuit court of La Salle County, confirming the decision of the Industrial Commission, is reversed, and the cause is remanded for further proceedings consistent with the views expressed herein.

Reversed and remanded.

BARRY, P.J., and WOODWARD, McCULLOUGH and LEWIS, JJ., concur.


author: PRESIDING JUSTICE WOMBACHER JUSTICE BARRY,

text:
    THOMAS S. FREDETTE et al., Plaintiff-Appellants, v. THE VILLAGE OF BEECHER et al., Defendants-Appellees.
    Third District
    No. 3—88—0651
    Opinion filed December 28, 1989.

      BARRY, J., concurring in part and dissenting in part.
    Codo, Bonds, Zumstein & Konzelman, of Joliet (Bruce L. Zumstein, of counsel), for appellants.
    Edward Burmila, State’s Attorney, of Joliet, for appellee County of Will.
    Clinton & Tongren, of Peotone (Steven Tongren and Stuart D. Gordon, of counsel), for appellee Village of Beecher.
    George A. Marchetti and Stuart D. Gordon, both of Moss & Bloomberg, Ltd., of Bolingbrook, for appellee Board of Health of County of Will.
   PRESIDING JUSTICE WOMBACHER

delivered the opinion of the court:

The plaintiffs appeal the dismissal of their complaint by the trial court.

The County of Will established a health department in 1943 which has been and continues to be vested with comprehensive authority to provide, protect, promulgate, regulate, and enforce all matters relating to public health within its jurisdiction.

The Village of Beecher is a municipal entity located within the County of Will. In 1962, the village began operating a sewage treatment plant which was subject to the various regulations and authority of the county health department. In 1963, the Will County Health Department adopted a sewage treatment and disposal ordinance which provides that all sewage treatment or disposal units which have liquid surfaces open to the free atmosphere must be located at least 200 feet from the property line of all adjacent properties. In 1972, a subdivision containing the houses owned by the plaintiffs herein was developed. This subdivision is located within a close proximity to the village’s sewage treatment plant.

In 1987, the Village of Beecher desired to construct an aeration lagoon, the purpose of which would be to further aerate the water after all the sewage had been treated and removed within the plant. This lagoon would contain a pool of standing water for sewage treatment purposes, but the plans called for berms and horticultural barriers to surround this lagoon which would provide additional protection for those residing in this subdivision. In order to legally construct this lagoon, the village would have to obtain a variance from the health department because some properties within this subdivision would be located within the protected area covered by this ordinance.

Once an application for variance is filed, any interested person may file a written request for a hearing to determine the merits of a variance. The health authority, which is a designated health officer or county executive officer or representative, has the ability to determine that strict compliance with a health department decision may not be warranted, especially when the anticipatory effects of that decision may cause undue hardship on a petitioner and if the health authority finds that public health will be adequately protected and substantial justice done by granting the variance. The health authority may then grant the variance upon such conditions and terms as it deems necessary.

The village filed its variance request with the Will County health authority. The director of the health department granted the variance on November 10, 1987. On November 22, 1987, and on December 29, 1987, a representative of the subdivision property owners asked the county health department to review the director’s decision, which it upheld.

The plaintiffs filed a two-count complaint in circuit court against the village, county, and board of health. Count I sought administrative review of the director’s and board’s decisions, and count II alleged the Village of Beecher was going to construct an aeration lagoon without receiving the requisite special use permit.

All defendants moved to involuntarily dismiss count I, and the Village of Beecher moved to dismiss count II, and defendants’ motions were granted by the trial court.

Plaintiffs then filed an amended complaint, reiterating count I. In addition, plaintiffs alleged that the board induced them not to seek administrative review within 35 days of the director’s decision. Instead, the plaintiffs requested administrative review within 35 days of the board’s decision. In count II, plaintiffs claimed the Village of Beecher should be estopped from denying the property was classified as an R-3 zone, even though the zoning ordinance classified the property as 1-1. The trial court dismissed plaintiffs’ amended complaint with prejudice. This appeal follows.

The plaintiffs contend that they filed their complaint for administrative review within the proper time limits prescribed by law, therefore, the trial court erred in dismissing their complaint. On November 20, 1987, the director granted the variance in question. On November 22, 1987, and on December 29, 1987, the plaintiffs inquired of the director as to the merits and reasons for his decision. The board of health thereafter upheld the director’s decision on January 13, 1988, following a hearing at which it heard from a representative of the affected property owners (plaintiffs) and the Village of Beecher.

The plaintiffs filed a complaint in circuit court on or about February 16, 1988, which was filed within 35 days of the board’s decision, but not within 35 days of the director’s decision. The circuit court dismissed count I of plaintiffs’ complaint, and in so doing, held that the time for plaintiffs to file this action for administrative review was within 35 days of the director’s decision, not the board’s decision.

Under the Administrative Review Law (Ill. Rev. Stat. 1987, ch. 110, par. 3—101 et seq.), an action for judicial review must be commenced within 35 days of the final administrative decision. If the agency has no rule or statute for review or rehearing, the final order is ripe for review following its rendition.

The final decision-making authority with respect to variation requests is vested with the health director. (Will County Sewage Treatment and Disposal Ordinance §13.) There are no provisions within said ordinance of subsequent review procedures of the director’s decision by the board, or any other administrative agency. The decision by the director was the final administrative decision for purposes of the Administrative Review Law. (Ill. Rev. Stat. 1987, ch. 110, par. 3—101.) Therefore, plaintiffs’ complaint was not filed within 35 days of the director’s decision, and the circuit court was correct in dismissing the complaint. Timely filing of an administrative review complaint is a jurisdictional requirement, which cannot be waived. Fredman Brothers Furniture Co. v. Department of Revenue (1984), 129 Ill. App. 3d 38, 471 N.E.2d 1037, aff'd (1985), 109 Ill. 2d 202, 486 N.E.2d 893.

If there is no agency rule or statute which provides for a rehearing, then the petition for rehearing filed with the administrative agency will not toll the 35-day period in an action for judicial review. See Castaneda v. Human Rights Comm’n (1988), 175 Ill. App. 3d 1085, 537 N.E.2d 807; Oliver v. Civil Service Comm’n (1967), 80 Ill. App. 2d 329, 224 N.E.2d 671.

Plaintiffs also argue that the defendant County of Will should be estopped to deny the final decision was made when rendered by the board of health. Regardless of plaintiffs’ claim that they were induced to wait until the board rendered its decision in order to invoke the Administrative Review Law and seek judicial review, they should have filed their complaint within 35 days of the director’s decision, and we agree that they are now barred from further proceeding therewith. (Oliver v. Civil Service Comm’n (1967), 80 Ill. App. 2d 329, 334, 224 N.E.2d 671.) Even though the board placed the director’s decision on its agenda for review, it did not have authority to do so, and any decision or further resolution would have been null and void since the County of Will is not a home rule unit. Oliver v. Civil Service Comm’n, 80 Ill. App. 2d at 334.

The duties of a county board of health include the administrative management of the county health department, enforcement of laws and ordinances related to the preservation of health, and the investigation and inspection of contagious or infectious diseases. (Ill. Rev. Stat. 1987, ch. 1111/2, pars. 20c12, 20c13.) There exists no law, statute, bylaw, or ordinance giving the board the power to grant or review variances issued by health department directors.

Finally, plaintiffs contend the village should be compelled to hold a public hearing regarding the issuance of a special use permit before commencing construction of the lagoon. We agree. The village adopted a zoning ordinance which was intended to promote and protect public health, safety, and welfare and to protect the character and maintain the stability of residential uses within the village. The village should hold a public hearing. Initially, it is not clear what the correct zoning classification was assigned the property on which defendants sought to construct the lagoon, and secondly, when affirmative actions are taken by public authorities causing property owners to change their position and incur great expenditures which would not have been made but for the affirmative action of the governmental agency, the courts have granted estoppel and required compliance with the rules and regulations which would not otherwise have been in effect. (People ex rel. Beverly Bank v. Hill (1966), 75 Ill. App. 2d 69, 221 N.E.2d 40.) This matter should be remanded for further consideration by the circuit court with instructions to determine the correct zoning classification and whether the affected property owners will be caused great expenditure if the village is permitted to proceed with the construction of the lagoon.

Based on the foregoing, the circuit court of Will County is affirmed in part, reversed in part, and this matter is hereby remanded for further consideration in accordance with this opinion.

Affirmed in part; reversed in part and remanded.

SCOTT, J., concurs.

JUSTICE BARRY,

concurring in part and dissenting in part:

I agree with my colleagues that the trial court did not err in dismissing count I of plaintiffs’ amended complaint for failure to file a complaint in the circuit court within 35 days of the director’s November 20, 1987, decision granting the village’s petition for a variance. I cannot, however, concur with the majority’s disposition of plaintiffs’ count II.

The majority instructs the circuit court to determine the “correct” zoning classification and to decide whether plaintiffs “will be caused great expenditure if the village is permitted to proceed with the construction of the lagoon.” (192 Ill. App. 3d at 742.) First, the parties do not dispute that the “correct,” or legal, zoning classification of the area in question is 1-1 (industrial). The record on appeal contains a copy of an ordinance passed and approved by the Village of Beecher Board of Trustees on May 12, 1969, which unambiguously establishes that the area of the proposed lagoon was zoned 1-1. Plaintiffs do not allege that the area was reclassified at any later date, but only that the municipality’s map has reflected R-3 “for more than 10 years prior to January 13,1988.”

Clearly, as between a zoning ordinance and the municipality’s official zoning map, it is the ordinance that controls. (Oak Forest Mobile Home Park, Inc. v. City of Oak Forest (1975), 27 Ill. App. 3d 303, 310, 326 N.E.2d 473, 479, citing Western Pride Builders, Inc. v. Koraska (1968), 91 Ill. App. 2d 458, 463, 235 N.E.2d 313, 316.) Plaintiffs make an estoppel argument based on their vague allegation that unnamed “Village officials” informed one or more of the plaintiffs that the area in question was zoned R-3 as shown on the map.

The law of this State is clear that

“[e]stoppel against the public is little favored [citations] and is found only in rare and unusual circumstances [citations]. Where governmental activities are concerned, the doctrine cannot be invoked except in extraordinary circumstances [citations] especially where *** public revenues are involved [citation]. Indeed, public policy generally opposes the application of an estoppel against a governmental body where public revenues are involved even where detrimental reliance is present [citation]. The paramount consideration is the right of the people, and estoppel will not be applied to defeat a policy adopted to protect the public.” (Emphasis added.) (County of Cook v. Patka (1980), 85 Ill. App. 3d 5,12-13, 405 N.E.2d 1376, 1381.)

A vested property interest a consequent estoppel against a municipality may be established only upon evidence: (1) of an affirmative act on the part of the municipality; (2) that the affirmative act induced the plaintiffs to act; and (3) that the plaintiffs substantially changed their position as a result of their justifiable reliance. Plaintiffs’ failure to allege more than the mere unauthorized act of a ministerial officer or a ministerial misinterpretation may be cause for dismissal of an action grounded upon estoppel. American National Bank & Trust Co. v. Village of Arlington Heights (1983), 115 Ill. App. 3d 342, 347, 450 N.E.2d 898, 903, citing Deer Park Civic Association v. City of Chicago (1952), 347 Ill. App. 346, 106 N.E.2d 823; Solomon v. City of Evanston (1975), 29 Ill. App. 3d 782, 331 N.E.2d 380; Lake Shore Riding Academy, Inc. v. Daley (1976), 38 Ill. App. 3d 1000, 350 N.E.2d 17.

The majority apparently assumes the element of an “affirmative act.” In fact, the affirmative act element cannot be assumed. The majority cites People ex rel. Beverly Bank v. Hill (1966), 75 Ill. App. 3d 69, 221 N.E.2d 40, as support for its implicit conclusion that plaintiffs’ count II of their first amended complaint should not have been dismissed for failure to plead a cause of action upon which relief could be granted. However, it is quite clear from a reading of Hill that plaintiffs’ allegations of an affirmative act in this case fall far short of the “special facts and circumstances” established in Hill.

In Hill, plaintiff met with the trustees and president of the Village of Crestwood seeking to have the subject property annexed to the village and zoned for commercial and multiple residential construction. The village president expressed his opinion that plaintiff’s proposal would be acceptable and beneficial to the village. A public hearing was held, after which the plan commission recommended to the board of trustees that the requested zoning be granted after the property was effectively annexed. The board of trustees passed the recommendation favorably, and the president told plaintiff that the village had lived up to its part of the bargain. It was not until after all of these actions that plaintiff purchased the property for $134,000. A map was drawn accordingly, showing the subject property zoned for commercial and multiple dwellings. However, no formal ordinance rezoning the property was adopted. Subsequently, it was learned that the property had been annexed to a first class residential area of the village; and plaintiff brought suit to resolve the zoning issue. On appeal, the Hill court ruled that plaintiff had sufficiently established that the municipal officers had affirmatively acted with the approval of everyone interested and that this, together with proof of the elements of inducement and detrimental reliance, sufficed to invoke the estoppel doctrine.

More recently, in American National Bank & Trust Co. v. Village of Arlington Heights (1983), 115 Ill. App. 3d 342, 450 N.E.2d 898, plaintiffs presented allegations of an affirmative act much more analogous to those before us today. Specifically, plaintiffs there alleged that the village planner informed plaintiffs that the subject property was zoned B-2 (commercial); that the plat and subdivision committee told plaintiffs that no plan commission hearing would be necessary to proceed with their retail building project; and that the official zoning district map reflected that the property was zoned B-2. In fact, the property had reverted back to R-l because a conditional ordinance to rezone it to B-2 had expired before plaintiffs proceeded with their development. On these facts, the appellate court ruled that plaintiffs’ complaint based on estoppel could not survive defendants’ motion to dismiss. The court noted that “the representations made by the village planner and the plat and subdivision committee were the unauthorized acts or misinterpretations of ministerial officers rather than acts of the municipality itself.” 115 Ill. App. 3d at 348, 450 N.E.2d at 903.

In this case, as aforesaid, plaintiffs allege merely that “one or more of the plaintiffs” inquired of an unnamed village official about the zoning of the subject property and was/were informed that it was zoned R-3 and was/were shown the official zoning map, which indicated R-3. The majority sub silencio finds these allegations sufficient to delay or defeat the construction of the village’s aeration lagoon for its sewage treatment plant. I disagree. In my opinion plaintiffs’ allegations of an affirmative act by the municipality fail to establish that the representations were other than unauthorized acts or misinterpretations of ministerial officers. By my view, the map in itself, although misleading, is not and should not be sufficient ground to justify applying estoppel against the municipality and the public it serves.

For these reasons, I would affirm the judgment of the circuit court dismissing with prejudice both counts of plaintiffs’ first amended complaint.


text:
    THE FIRST NATIONAL BANK OF PEORIA, as Trustee, Plaintiff-Appellee, v. ELIZABETH J. SINGER et al., Defendants-Appellees (David Johnson et al., Defendants-Appellants).
    Third District
    No. 3—89—0148
    Opinion filed January 10, 1990.

      Robert M. Bellatti and Claudia Ausdal Connelly, both of Bellatti & Barton, of Springfield, for appellants.
    Carroll Baymiller, of Baymiller, Christison & Radley, of Peoria, for appellee First National Bank of Peoria.
   JUSTICE STOUDER

delivered the opinion of the court:

This is an appeal from a judgment of the circuit court of Peoria County construing two revocable living trusts established on October 18, 1966, by Roy Johnson and Icie Johnson. The plaintiff-appellee, the First National Bank of Peoria, is the trustee for these trusts. The defendants-appellants are certain beneficiaries under such trusts. The trusts provided, in pertinent part, that after the death of both settlors, the income be paid in equal shares to their two sons, James Johnson and Robert Johnson, during the terms of their natural lives, and that “upon the death of the survivor of the sons, the trust shall be divided equally between all of my grandchildren, per stirpes.” James Johnson and Robert Johnson both disclaimed all of their interest in the trusts on November 27, 1979, thereby causing the provisions in the trusts regarding the grandchildren to come into effect pursuant to section 2 — 7(d) of the Probate Act of 1975 (Ill. Rev. Stat. 1987, ch. 1101/2, par. 2-7(d)).

The plaintiff-appellee filed this action requesting instructions regarding in what manner the trusts should be distributed. The plaintiff-appellee asserts that the trust corpus should be distributed per stirpes to the grandchildren of the settlors, one-half to the children of James Johnson and one-half to the children of Robert Johnson. Defendants-appellees Elizabeth Singer and Barbera Johnson, James Johnson’s daughters, adopted the plaintiff-appellee’s position in their answer.

Defendants-appellants David Johnson, Rosalyn Clement, Catherine Johnson, and Elizabeth Caslin, Robert Johnson’s children, filed an answer contending that the settlors intended to distribute the trust corpus to the grandchildren per capita after the death of both sons. The parties filed briefs on this issue, but the trial court heard no oral argument. The trial court found in favor of the plaintiff-appellee, and ordered that reasonable attorney fees and costs be paid out of the trust assets. The trial court also denied appellants’ post-trial motion to vacate the judgment.

On appeal, the appellants raise two issues: (1) whether certain beneficiaries under the two trusts take the trust corpus as individuals (per capita) or as representatives of their fathers (per stirpes), and (2) whether appellants are entitled to the reasonable costs and fees of their attorneys from the trust property.

Initially, we note that the purpose of a court in interpreting a will or trust is to ascertain the intention of the testator or the settlor. (Condee v. Trout (1942), 379 Ill. 89, 39 N.E.2d 350.) The intention of the testator or settlor is to be found from the wording of the document as a whole, giving each word meaning. (Peoples Bank v. Rankin (1968), 94 Ill. App. 2d 368, 236 N.E.2d 770.) When, however, the instrument fails to make the testator’s or settlor’s intention clear, courts often resort to rules of construction to determine the meaning of the terms used in the document. (Harris Trust & Savings Bank v. Beach (1987), 118 Ill. 2d 1, 513 N.E.2d 833.) One rule of construction set forth in Straw v. Barnes (1911), 250 Ill. 481, 95 N.E. 471, states that when the words “in equal parts,” or similar words, are used in a will to indicate an equal division among a class, the intention presumed is that the persons to whom the devise is to be made are to take per capita, unless a contrary intention is discoverable from the will. However, the leading cases which sustain a distribution per capita intimate that this presumption yields readily to even a “very faint glimpse” of intent that distribution shall be per stirpes. Dollander v. Dhaemers (1921), 297 Ill. 274, 130 N.E. 705; Harris Trust & Savings Bank v. Beach (1987), 118 Ill. 2d 1, 513 N.E.2d 833.

Appellants contend that the settlors’ choice of words indicates that they intended all of their grandchildren to share equally the remainder, per capita. According to the appellants, the words per stirpes in the trusts refer to the grandchildren’s descendants.

We disagree. In the instant case, the law requires the court to give meaning to the words contained in the two trusts, and to adopt a construction which provides a plan of distribution consistent with all provisions therein. The use of the words “grandchildren, per stirpes” is neither faint nor merely a glimpse, but manifests the settlors’ intention that their grandchildren not take per capita. As noted in Peoples Bank v. Rankin (1968), 94 Ill. App. 2d 368, 236 N.E.2d 770, a distribution per stirpes is the antithesis of an equal division per capita. The intention reflected in the trusts is simply this: the settlors desired that their two sons share the income from the trusts for as long as the sons lived, and that after the death of the surviving son, the property should then go to the grandchildren by representation of their fathers. Any other construction requires that the court construe the words per stirpes to actually mean per capita.

The appellants also argue that the settlors designated the grandchildren as the root generation for purposes of a stirpital distribution in order to provide for the contingency that one of the grandchildren might predecease his father. Such a contingency, however, could have been provided for had the trust language been drafted without the words “per stirpes.” Accordingly, we conclude that the trial court properly construed the trusts.

The second issue is whether the trial court erred in denying appellants the reasonable costs and fees of their attorneys from the trust property. Appellants assert that because the appellee admitted in its complaint that there was an ambiguity in the trust instrument in need of a court’s interpretation, the reasonable costs and fees should be paid out of the trust property.

We note that in a suit for construction of trust documents, the costs and reasonable attorney fees of all the parties who aided the court in the construction should be paid out of the trust, regardless of which party’s interpretation prevails (Stuart v. Continental Illinois National Bank & Trust Co. (1977), 68 Ill. 2d 502, 369 N.E.2d 1262), and that this decision rests in the discretion of the trial court. (Barnhart v. Barnhart (1953), 415 Ill. 303, 114 N.E.2d 378.) The trial court incorrectly denied the appellants the reasonable costs and fees of their attorneys. The trustee determined that resort to the court was necessary to resolve this dispute. Where, as here, the litigation is the result of honest differences of opinion, attorney fees and litigation expenses will be chargeable to the estate. (Orme v. Northern Trust Co. (1962), 25 Ill. 2d 151, 183 N.E.2d 505.) Therefore we conclude that the reasonable costs and fees of the appellants’ attorneys be paid for from the trust property.

For these reasons we conclude that the judgment of the circuit court of Peoria County is affirmed with respect to the construction of the trusts and reversed with respect to the denial of the reasonable costs and fees of attorneys for the appellant and remanded for proceedings to determine such fees and costs.

Affirmed in part; reversed in part.

HEIPLE, P.J., and SCOTT, J., concur.