author: Mr. JUSTICE LEIGHTON

text:
    Forestview Homeowners Association, Inc. et al., Plaintiffs-Appellants, v. The County of Cook et al., Defendants-Appellees—(The Village of Northbrook, Intervenor-Plaintiff- Appellant.)
    (No. 57777;
    First District (2nd Division)
    March 5, 1974.

      Gordon & Brustin, Ltd., of Chicago (Robert E. Gordon, of counsel), for appellants.
    Haskins & Haskins, of Chicago (Charles G. Haskins, of counsel), for appellees.
    Frederic O. Floberg, R. Marlin Smith, and Edward F. Ryan, all of Ross, Hardies, O’Keefe, Babcock & Parsons, of Chicago, for intervenor-appelIant.
   Mr. JUSTICE LEIGHTON

delivered the opinion of the court:

This appeal arises from a dispute concerning the validity of an amendatory zoning ordinance and a special use granted by the Board of Commissioners of Cook County. Plaintiffs Forestview Homeowners Association, Charlemagne Homeowners Association, Sutton Point Homeowners Association, Huntington Homeowners Association, all Illinois not-for-profit corporations, together with two individuals, George Wilson and Jane Wilson, his wife, filed a suit against the County of Cook, Raymond J. Welsh, its commissioner of buildings, Bernard J. O’Brien, its zoning administrator, Newton F. Korhumel, Thomas Origer, Origer Builders, Inc., a foreign corporation and the Cook County Recorder of Deeds, Sidney R. Olsen. Thereafter, the Village of Northbrook, an Illinois municipal corporation, was granted leave to intervene as a plaintiff.

In their respective complaints, the original plaintiffs and the intervenor sought a declaration that an ordinance which rezoned a 96-acre parcel of land from R-3 single family to R-6 general residence district, and a special use granted by the Board of County Commissioners of Cook County, were void. The plaintiffs and intervenor prayed for an injunction, preliminary and permanent, restraining the County of Cook and its officials from issuing any building permit for construction of a proposed multiple-family housing project which would have been permissible under the R-6 zoning created by the amendatory ordinance. They also prayed for an injunction restraining the owners of the 96-acre tract from constructing on the land the proposed housing project or devoting the land to any use other than one permitted under the R-3 zoning of the Cook County Zoning Ordinance. After disposing of preliminary motions and hearing evidence, the trial court found that equity was with the defendants and entered a decree in their favor.

The original plaintiffs and the intervenor then took separate appeals to this court. Thereafter, on motion of the intervenor pursuant to Supreme Court Rule 305(g), we entered an order staying enforcement of the decree pending the appeals. Defendants (County of Cook, its officials, Thomas Origer and Origer Buildings, Inc.) filed cross-appeals limited to a review of the question whether the trial court erred when it granted the Village of Northbrook leave to intervene as a plaintiff in the original suit. However, neither the County of Cook nor its officials have appeared in this court and filed a brief, either in support of the decree below or in support of their cross-appeal. Thomas Origer and Origer Builders, Inc., have appeared and filed a brief, but they do not, in compliance with Supreme Court Rule 343(b)(i), argue the issue they sought to raise as cross-appellants. Despite this fact, and without the assistance of a brief by the County of Cook, we will decide the appeals and cross-appeals, including whether the Village of Northbrook had standing to intervene in the suit. We begin with a summary of the material facts, concerning which, in the main, the parties appear to be in agreement.

!.

In 1968, near the end of the year, the defendant Thomas Origer purchased a five-parcel 96-acre tract of land in Cook County for $1,200,000. The tract was rectangular in shape, one-half in Wheeling Township, and one-half in Northfield Township, and the land which composed it was vacant. Its northern border was 600 feet south of Lake-Cook Road in an unincorporated area of the county; its southern border, Forestview Road, was about a mile and a half from the village limits of Northbrook, Illinois. Its eastern border was Sanders Road, a two-lane macadam-surfaced highway; and on the v/est it was bordered by some single-family homes and the Cook County Forest Preserve. The tract was then zoned R-3 single-family-residence district under the Cook County Zoning Ordinance. All of the land immediately surrounding it, except for one property on its northern border on which a riding stable was being constructed, was also zoned R-3 residential and was either vacant, had single-family homes on some of the lots, or was part of the Cook County Forest Preserve.

The tract was part of a 25-to-30-square-mile area patrolled by the Cook County sheriff’s police. The patrol consisted of a one-man vehicle that operated 24 hours a day. In addition, the sheriff’s police made specific requests for assistance from police departments of municipalities within the area. Fire protection was furnished by volunteer fire departments or by cooperation with other municipalities such as the Village of Northbrook. With regard to sewerage, it was contemplated that development of the tract would require connection with the Walters Avenue pumping station which serves the 1100 acres of land in the Des Plaines River watershed not served by gravity connections to existing interceptors. The pumping station discharges into an interceptor sewer that has a total capacity of 12.1 million gallons per day. The Metropolitan Sanitary District of Greater Chicago computes sewer design requirements by assuming that there will be a demand for 155 gallons of capacity for each person per day in the area served by the pumping station.

The 96-acre tract of land was partly in School District 27, an elementary school system that had three schools from kindergarten through the sixth grade. In addition, the system had one junior high school and a second junior high under construction. At the time of this litigation, the three elementary schools, including the one closest to the tract, were operating at capacity. School District No. 27 had almost exhausted its bonding power and did not expect to have money available for the construction of a new elementary school for at least 2 years. One elementary school in the district had been the subject of additional construction; and school authorities had been compelled to acquire a temporary kindergarten facility in a local church. Double shifts of school classes had been avoided by making use of classroom facilities available in an adjoining school district. The Board of Education could not determine whether, in the future, funds would be available to meet plans for expansion of facilities for the education of children who five in the district.

A short time after defendant Origer acquired the tract of land, an application was made to the Cook County Board of Commissioners that the applicable provision of the Cook County Zoning Ordinance be amended to reclassify the tract from R-3 single-family to an R-6 general-residence district and that a special use be granted to permit the construction of a multi-family housing development totaling 2,003 dwelling units to house a population between four and six thousand persons. There was to be a total of 2,982 parking spaces to accommodate automobiles owned by persons who were to five in the housing development. Cook County zoning authorities were informed by the developer that the one-bedroom units were to be rented for $200 to $225 per month; the three-bedroom units for $250 to $300 per month. Water for the development was to be provided by one or two deep wells drilled on the land. Sanitary sewer mains from the tract were to be connected with the Walters Avenue pumping station, a mile and a half to the south. Storm water drainage was to be through a retention basin; and from there, storm waters could flow by open or closed drainage to a river on the west.

The applications for the amendatory zoning ordinance and for grant of the special use were referred to the Cook County Zoning Board of Appeals, which held three public hearings between April 14, 1969 and May 2,1969. The original plaintiffs, the intervenor Village of Northbrook, and municipalities which were one and a half miles from the tract, appeared and objected to grant of the applications. On May 13, 1969, the president and the board of trustees of intervenor Village of Northbrook adopted Resolution 69-R-42, in conformance with HI. Rev. Stat. 1967, ch. 34, par. 3158, and objected to rezoning of the 96-acre tract and to grant of the special use. A certified copy of the resolution was filed with the clerk of Cook County, the secretary of the Cook County Zoning Board of Appeals, and the president of the Cook County Board of Commissioners. Thereafter, on October 27, 1969, the Zoning Board of Appeals submitted its findings and recommended to the Cook County Board of Commissioners that it adopt the amendatory zoning ordinance requested and grant the special use. On November 30, 1970, the Board concurred in these recommendations. Thereafter, the suit in this case was filed.

To sustain the allegations of their respective complaints, the original plaintiffs and the intervenor called 3 witnesses who were experts; 9 whose testimony bore on the claim that adoption of the amendatory zoning ordinance and grant of the special use was arbitrary and unreasonable; 11 who were owners of single-family residences contiguous to the 96-acre tract and who, according to their testimony, had relied on the R-3 single-family zoning of the area when they purchased their homes. Defendants called as their witnesses the defendant Thomas Origer and three experts. After hearing all the evidence, the trial court made oral findings and concluded that lack of a comprehensive zoning plan by the County of Cook did not render the amendatory zoning ordinance or grant of the special use invalid. Although the trial judge found the evidence tended to indicate that construction of the planned development would have some depreciatory effect on the homes of the plaintiffs along Forestview Drive, he said, “* * * I am unable to find on the basis of the conflicting evidence presented that the depreciatory effect would be in any specific percentage amount, and I can only find in a general way that the homes are not particularly benefited by the construction of this planned development.” The court then entered a decree dismissing the complaints with prejudice.

Urging that the decree be reversed, the original plaintiffs and the intervenor present three issues for our review. 1. Whether the procedure followed in this case by the Board of Commissioners of Cook County invalidated the Board’s adoption of the amendatory zoning ordinance and its grant of the special use. 2. Whether the failure of Cook County to plan comprehensively for the use and development of land in tire county’s unincorporated areas, and its failure to relate its rezoning decisions to data files and plans of other county agencies, weaken or destroy the presumption of validity which otherwise would attach to a county zoning ordinance. 3. Whether, measured by applicable standards of reasonableness, the decision of the Board of Commissioners of Cook County to rezone the 98-acre tract and grant a special use was an arbitrary and capricious exercise of its power to regulate the use and development of land within its jurisdiction.

II.

Before reviewing these issues, we will decide the question to which defendants restricted their cross-appeals; namely, whether thé trial court erred in allowing the Village of Northbrook to intervene in the suit on file. In deciding this question, we must determine whether after July 1, 1971, the Village of Northbrook, a municipality which has a population of more than 25,000, had standing to intervene as a plaintiff in a suit to enjoin the enforcement of a rezoning ordinance and a special use that concerned land outside of, but within lVz miles of its territorial limits.

The intervention sought by the Village, and which the trial court granted, was in accordance with the Civil Practice Act, which provides that “[u]pon timely application anyone may in the discretion of the court be permitted to intervene in an action: * * * (b) when an applicant’s claim or defense and the main action have a question of law or fact in common.” (See Ill. Rev. Stat. 1969, ch. 110, par. 26.1(2) (b).) This was permissive discretionary intervention. It is generally said that intervention under our procedure is a matter largely left to the trial court’s discretion, and its determination allowing or disallowing intervention will not be disturbed on appeal unless clear abuse is shown. (Hurley v. Finley, 6 Ill.App.2d 23, 28, 126 N.E.2d 513.) Rules and statutes pertaining to intervention are liberally construed. Williams v. City of Bloomington, 108 Ill.App.2d 307, 247 N.E.2d 446.

In tills case, no statute specifically permitted but none prohibited intervention by the Village of Northbrook. (Compare In Re Leyden Fire Protection District, 4 Ill.App.3d 273, 280 N.E.2d 744.) It is true that prior to July 1, 1971, Illinois appellate courts, with apparent consistency, held that a village or city lacked statutory authority to litigate the validity of a county zoning ordinance that affected land outside its corporate boundaries. (Village of Bensenville v. Du Page Couny, 30 Ill.App.2d 324, 174 N.E.2d 403 (abstract opinion); Village of Mount Prospect v. County of Cook, 113 Ill.App.2d 336, 252 N.E.2d 106; Krembs v. County of Cook, 121 Ill.App.2d 148, 257 N.E.2d 120 (abstract opinion); Village of Arlington Heights v. Cook County, 133 Ill.App.2d 673, 273 N.E.2d 706; Village of Arlington Heights v. County of Cook, 3 Ill.App.3d 213, 278 N.E.2d 841; compare Dato v. Village of Vernon Hills, 62 Ill.App.2d 274, 210 N.E.2d 626; see Annot., 49 A.L.R.Sd 1126.) However, on July 1,1971, the Illinois Constitution of 1970 went into effect. Under the provisions of its article VII, section 6(a), the Village of Northbrook became a home rule unit. The pertinent part of that article provides that “[ejxcept as limited by this Section, a home rule unit may exercise any power and perform any function pertaining to its government and affairs including, but not limited to, the power to regulate for the protection of the public health, safety, morals and welfare * *

We hold that this provision was intended to give a qualifying unit of local government constitutional authority to exercise any power and perform any function pertaining to its government and affairs. (See S.H.A. Const. Art. 7, § 6(a), Helman and Whalen, Constitutional Commentary. ) It is well known that unless there is a constitutional or statutory prohibition, a municipality is privileged to seek protection of public rights by injunctive relief on the same footing that a private person or a corporation may seek such redress. (Chicago, Burlington & Quincy R.R. Co. v. City of Quincy, 136 Ill. 489, 27 N.E. 232, 17 McQuillan, Municipal Corporations §49.57 ( 3d ed. 1968).) When a municipality engages in litigation to enforce the public policy manifested by its ordinances, it is engaged in a governmental function. (See Ellis v. City of West University Place (1943), 141 Tex. 608, 175 S.W.2d 396; Swafford v. City of Garland (Tex. Civ. App. 1973), 491 S.W.2d 175; compare Rivera v. City of Amsterdam (1958), 5 App.Div.2d 637, 174 N.Y.S.2d 530.) As alleged in its tendered amended complaint, the ordinances of the Village of North-brook reflected a valid governmental interest in the subject of the litigation, even though tire land involved was outside its boundaries. (Compare People ex rel. City of Salem v. McMackin, 53 Ill.2d 347, 291 N.E.2d 807; City of Chicago v. Wonder Heating & Ventilating Systems, Inc., 345 Ill. 496, 178 N.E. 192; City of Chicago v. National Brick Co., 331 Ill. App. 614, 73 N.E.2d 647 (abstract opinion); see 62 C.J.S. Municipal Corporations § 141; Biebel, Home Rule in Illinois, 6 J.M.J. Pr. & Proc. 253, 297.) Therefore, the trial court did not err when, in the exercise of its discretion, it allowed the Village to intervene in the suit as a plaintiff.

The application to rezone the 96-acre tract, and for the special use, was referred to the Zoning Board of Appeals of Cook County. Some of the original plaintiffs, the Village of Northbrook and other municipalities within miles of the tract, appeared and voiced their objections to the rezoning and to grant of the special use. In addition, the Village of Northbrook adopted and filed with the County Clerk of Cook County, written objections to the rezoning. After hearings that were continued over 3 days, the zoning board, on October 27,1969, submitted its findings to the Board of Commissioners of Cook County and recommended that the tract be rezoned from R-3, single family, to R-6, general residence; and that a special use be granted to permit construction of a multi-family development on the rezoned land.

Article VI, section 6.8g(3) of the Cook County Zoning Ordinance provided that “[i]f an application for a proposed amendment is not acted upon finally by the Board of Commissioners of Cook County within sixty (60) days of the time of receipt of the Zoning Board of Appeals’ recommendations, it shall be deemed to have been denied.” The Board of Commissioners did not act on the Zoning Board’s recommendations within 60 days. On November 30, 1970, however, more than 1 year after the recommendations were made, and without notice to the interested parties that it was going to act on that day, the Board had before it a report of its Committee on Public Service. This report recommended, among other things, an award of contracts for equipment and service to three divisions of county government, rejection of bids on a buck and a bus for the county sheriff’s police, dismissal of an application for rezoning of land in Rich Township, dismissal of an application for rezoning and special use in Leyden Township and the placing on file of applications for special uses in Elk Grove and Palatine Townships. In a paragraph that followed these items, the committee recommended that on approval of its report, the amendatory zoning ordinance be adopted and the special use be granted. A roll call followed; and, without any indication that rezoning of the 96-acre tract and the special use were being specifically approved, ten members of the Board voted yea, two nay. At the time, the Village of Northbrook, and other municipalities, had objected to the rezoning and had filed these objections with the county clerk. It was then the law that if the objections of a municipality to a zoning amendment were * * filed with the county clerk, such amendment shall not be passed except by the favorable vote of three-fourths of all the members of the county board.” Ill. Rev. Stat. 1967, ch. 34, par. 3158.

Pointing to the fact that the Board of Commissioners of Cook County voted on the proposed rezoning and special use more than a year after the Zoning Board of Appeals made its recommendations; and, to the further fact that when it did, the vote was to approve a committee report that included seven other proposals, the original plaintiffs and the intervenor contend that this procedure invalidated the actions of the Board. We agree with this contention.

In Cosmopolitan National Bank v. City of Chicago, 27 Ill.2d 578, 190 N.E.2d 352, an amendatory ordinance was proposed in the Chicago City Council on March 26, 1958, and adopted on November 25, 1958. At the time, the City’s zoning code provided, in part, that "[i]f an application for a proposed amendment is not acted upon finally by the City Council within six (6) months of the day upon which said application is filed by the City Clerk with the City Council it shall be deemed to have been denied.” In a suit to set aside the ordinance as a cloud on real estate, the trial court entered a decree which found that the ordinance was void because it was adopted more than 6 months after application for it was filed. The City appealed to the Illinois Supreme Court. There it was held that in view of the provisions of the city’s zoning code, an amendatory zoning ordinance not passed within 6 months from the filing of the application for it, and passed without the notice and hearing required by the ordinance, was void.

In our judgment, this decision controls the case before us. Under the provisions of Ill. Rev. Stat. 1967, ch. 34, par. 3158, the right to protest against a proposed zoning amendment is given to abutting property owners and to municipalities within miles of the property involved. No amendment to a county zoning ordinance can be adopted without a hearing. These are important rights which our law gives citizens whose personal and property interests are affected by a proposed rezoning ordinance. (See Chapman v. County of Will, 55 Ill.2d 524, 304 N.E.2d 287.) During the 1 year of inaction when the recommendations of the Zoning Board stood before the Board of Commissioners, events could have transpired and developments could have occurred which would have justified a hearing by the Zoning Board of Appeals after its recommendations were deemed denied. Therefore, adoption of the amendatory ordinance and grant of the special use by the Board of Commissioners of Cook County, more than 1 year after the zoning board’s recommendations, without notice to the citizens involved, were void and of no effect. Cosmopolitan National Bank v. City of Chicago, 27 Ill.2d 578, 583, 190 N.E.2d 352.

Accordingly, we do not reach the questions raised by plaintiffs and the intervenor concerning the package vote taken by the Board of Commissioners of Cook County on November 30, 1970, when it approved the report of its committee on public service. Therefore, we will not resolve the issue whether a zoning amendment which cannot be passed * * except by the favorable vote of three-fourths of all the members of the county board * * can be adopted by a roll call vote approving the report of a committee containing other proposals. We conclude, however, that approval of the Zoning Board’s recommendations, more than 1 year after they were made, invalidated adoption of the amendatory zoning ordinance and grant of the special use.

IV.

Ordinarily, this conclusion would end discussion of the issues that remain. But in this case, resolution of the remaining issues is necessary because “[o]therwise the [Board of Commissioners] would only have had to pass another amendatory ordinance with the [R-6] classification, thus subjecting plaintiffs and our courts alike to a second round of costly and time consuming litigation.” (Cosmopolitan National Bank v. City of Chicago, 27 Ill.2d 578, 581, 190 N.E.2d 352.) For this reason, we turn to the issue whether the failure of Cook County to plan comprehensively for the use and development of land in the county’s unincorporated areas, and its failure to relate its rezoning decision to data files and plans of other county agencies, weaken or destroy the presumption of validity which otherwise would attach to a county zoning ordinance.

There is recurring recognition that a comprehensive plan is a factor to be considered in determining the validity of an amendatory ordinance adopted by the zoning authorities of a county. (See Roseta v. County of Washington (1969), 254 Ore. 161, 458 P.2d 405.) At the time relevant in this case, comprehensive county zoning outside the limits of cities, villages and incorporated towns with municipal zoning ordinances, was provided, and indeed contemplated, by Ill. Rev. Stat. 1967, ch. 34, par. 3151, as amended in 1965. (See Village of Mount Prospect v. County of Cook, 113 Ill.App.2d 336, 341, 252 N.E.2d 106.) A comprehensive zoning plan is a scheme or formula of zoning that reasonably relates the regulation and restriction of land uses, including establishment of districts therefor, to the health, safety and welfare of the pubMc, and thus to the police power. (Hadley v. Harold Realty Co. (1964), 97 R.I. 403, 408, 198 A.2d 149.) It is a plan relevant in determining whether a zoning change is in harmony with the orderly utUization of property in a IocaMty. See Fifteen Fifty North State Building Corp. v. City of Chicago, 15 Ill. 2d 408, 418-19, 155 N.E.2d 97; compare Sinclair Pipe Line Co. v. Village of Richton Park, 19 Ill.2d 370, 167 N.E.2d 406.

A zoning ordinance is presumed to be valid. (See Exchange National Bank v. County of Cook, 25 Ill.2d 434, 185 N.E.2d 250; Central National Bank v. Village of Hoffman Estates, 10 Ill.App.3d 177, 293 N.E.2d 481.) “It is presumed that the legislative body investigated and found conditions such that the legislation which it enacted was appropriate, and that it acted wisely and with full knowledge of the conditions, that it intended a reasonable and legal classification and had sufficient reason to make the classification that it made * * * and that the regulation is in the interest of the community as a whole.” W. L. Holcomb, Inc. v. City of Clarksdale (1953), 217 Miss. 892, 900, 65 So.2d 281, 284; 62 C.J.S. Municipal Corporations § 228; 1 Rathkopf, The Law of Zoning and Planning, 21—1, 21—2 (3d ed. 1972).

Plaintiffs and the intervenor do not contend that lack of a comprehensive plan, whether mandated by statute or not, invafidates an ordinance adopted by the Roard of County Commissioners of Cook County. Rather, they contend that lack of a comprehensive plan “* * * weaken[s] substantiaHy the well known presumption which, ordinarily, attends any regular-on-its-face municipal zoning ordinance or amendment thereof. This is particularly true of an ordinance proposed toward contradictory rezoning, after years of original zoning upon which concerned persons have come to depend.” Raabe v. City of Walker (1970), 383 Mich. 165, 178, 174 N.W.2d 789; see Village of Euclid v. Ambler Realty Co. (1926), 272 U.S. 365, 71 L.Ed. 303, 47 S.Ct. 114.

We observe that when application was made to rezone the 96-acre tract, Cook County had a highway department and a department of planning and development. In addition, the county had available the informational resources of the Metropolitan Sanitary District concerning capacity of its sewerage systems and how these would be affected by the construction of 2003 additional dwelling units in the area where the tract of land was located. However, proponents of the zoning change could not show that the county’s highway department played any part in considering the effect which the population increase from 600 to 6000 persons would have on the roads and highways near the developed tract. The county’s department of planning and development had no part in considering the application for rezoning, its effect on neighboring property or the consequences of the contemplated increase in population density. And it was readily admitted by defendants that Coolc County did not have a comprehensive zoning plan. This admission has to be weighed against the enabling statute which provides that all county zoning shall be “[f]or the purpose of * * * conserving the values of property throughout the county * * * [and] due allowance shall be made for existing conditions, the conservation of property values, the directions of building development to the best advantage of the entire county, and the uses to which the property is devoted at the time of the enactment of any such ordinance or resolution.” Ill. Rev. Stat. 1967, ch. 34, par. 3151.

Moreover, without objection from any defendant, plaintiffs offered and had received in evidence the complete file of the proceedings before the Zoning Board of Appeals. Under proper objections, the file of the Zoning Board was not admissible in evidence. (See Anthony v. City of Kewanee, 79 Ill.App.2d 243, 223 N.E.2d 738; Siegel v. City of Chicago, 127 Ill.App.2d 84, 261 N.E.2d 802.) However, the file was admitted in evidence, and its contents are relevant to the issue we consider. These show that when the Zoning Board heard the rezoning application and the request for the special use, it did not hear from any county agency concerned with land use or planning or from any county agency with an interest in the increased population that was going to result from the multiple-family development contemplated by the rezoning application.

The presumption of validity which plaintiffs and the intervenor contend is weakened or destroyed by Cook County’s lack of a comprehensive zoning plan, and by its failure to correlate rezoning decisions with the resources of other county agencies, is a rebuttable presumption. (See People ex rel. Keller v. Village of Oak Park, 266 Ill. 365, 107 N.E. 636; Behnke v. President and Board of Trustees, 366 Ill. 516, 9 N.E.2d 232; 101 C.J.S. Zoning §§ 362, 363.) This presumption may be strengthened or weakened by evidence. (See Steiner v. Rig-A-Jig Toy Co., 10 Ill. App.2d 410, 135 N.E.2d 166; East St. Louis Connecting Ry. Co. v. Altgen, 210 Ill. 213, 71 N.E. 377; 1 Callaghan’s Illinois Evidence § 3.14.) It is dissipated or destroyed by evidence which proves the contrary. (La Salle National Bank v. County of Cook, 12 Ill.2d 40, 145 N.E.2d 65; Illinois National Bank & Trust Co. v. County of Winnebago, 19 Ill.2d 487, 167 N.E.2d 401; Pioneer Trust & Savings Bank v. County of McHenry, 41 Ill.2d 77, 241 N.E.2d 454.) “Zoning necessarily involves a consideration of the community as a whole and a comprehensive view of its needs.” (City of Aurora v. Burns, 319 Ill. 84, 95, 149 N.E. 784; 1 Rathkopf, The Law of Zoning and Planning 9—1 (3d ed. 1972); Haar, In Accordance with a Comprehensive Plan, 68 Harv. L. Rev. 1154, 1170 (1955).) This being so, we are constrained to agree that the faHure of Cook County to plan comprehensively for the use and development of land in its unincorporated areas, and its failure to relate its rezoning decisions to data files and plans of other related county agencies, weaken the presumption of validity which otherwise would attach to a county zoning ordinance. Compare Udell v. Haas (1968), 21 N.Y.2d 463, 235 N.E.2d 897; see Annot., 40 A.L.R.Sd 372.

With this fact in mind, we turn to the last issue in this appeal. Whether, measured by applicable standards of reasonableness, the decision of the Board of Commissioners of Cook County to rezone the 96-acre tract was an arbitrary and capricious exercise of its power to regulate the use and development of land within its jurisdiction. This issue, as presented and argued before us, requires that we determine the validity of the amendatory zoning ordinance and the propriety of the special use that authorized construction of a multiple-family development on a tract of land that, consistent with neighboring residential uses, was zoned for single-family homes. In doing so, we apply principles of zoning law which on numerous occasions have been announced by reviewing courts of this state.

The rezoning decision of the Board of County Commissioners was primarily a legislative function with which we will not interfere in the absence of a clear showing that it was unreasonable or capricious. (Exchange National Bank v. Cook County, 25 Ill.2d 434, 440, 185 N.E.2d 250.) The burden of making such a showing was on plaintiffs and the intervenor who, in addition, had to show that the rezoning was not substantially related to the public health, safety and welfare of the community in which the land was located. See First National Bank v. Village of Morton Grove, 12 Ill.App.3d 589, 299 N.E.2d 570.

In determining the validity of an amendatory ordinance, the factors to be considered are the same as those involved in ascertaining the legality of the initial ordinance, namely, (1) the existing uses and zoning of nearby property, (2) the extent property values are affected by the particular classification, (3) the promotion of the public welfare, (4) the relative gain to the public as compared to the hardship imposed on the property owner, and (5) the suitability of the property for the purpose zoned. (Chicago Title & Trust Co. v. Village of Wilmette, 27 Ill.2d 116, 188 N.E.2d 33; Liberty National Bank v. City of Chicago, 10 Ill.2d 137, 139 N.E.2d 235.) Each zoning case must be determined on its own facts. (Kioutas v. City of Chicago, 59 Ill.App.2d 441, 208 N.E.2d 587.) But of paramount importance is the question “* * * whether the subject property is zoned in conformity with surrounding existing uses and whether those uses are uniform and established.” Jacobson v. City of Evanston, 10 Ill.2d 61, 70, 139 N.E.2d 205; Oak Park National Bank v. City of Chicago, 10 Ill.App.3d 258, 294 N.E.2d 42.

For many year's prior to the rezoning, the subject property, with the exception of a stable under construction on Lalce-Cook Road, was surrounded by single-family homes. One side of the tract, its western edge, had forest preserve land that was zoned R-3, a single-family residence district. The surrounding uses for single-family residences were uniform and established. The nearest multiple-family housing was a distance south of the 96-acre tract and on the other side of the Tri-State Tollway, a natural buffer between land on which were multiple-family residences and that reserved for single-family homes. All indications are that consistent with the normal and ordinary growth of that unincorporated part of the county, the tract should be developed with single-family homes. It appears, then, that the Board of Commissioners rezoned the tract of land inconsistent with existing uses and the zoning of nearby property.

Prior to this rezoning, the tract, under the county zoning code, was in the R-3 district, a classification that restricted its use to single-family homes. The homes on land that abutted the tract ranged in present value from $25,000 to $75,000. The tract itself, although purchased in 1968 for $1,200,000, had a value, at the time of trial, of $1,500,000 zoned R-3 and $3,000,000 zoned R-6. In fact, by the time this case was heard, the defendant Thomas Origer had a contract to sell the land, as rezoned, for $3,440,000. Therefore, the value of the tract increased under the old zoning but tripled under the new.

On the other hand, evidence introduced by plaintiffs and the intervenor proved that construction of multiple-family buildings on the tract will depreciate tire single-family homes near it, in a range of from 5 to 10 percent of their real estate value. It is true that an expert who testified for defendants gave his opinion that multiple-family buildings nearby will not cause any economic obsolescence to neighboring property. In any event, before entry of the decree, the trial judge found that the planned multiple-family development would have “some depreciatory effect” on homes along the southern border of the tract; and “* * * in a general way that the homes are not particularly benefited by the construction of this planned development.” Therefore, the evidence proved, without question, that while the value of the tract was not adversely affected by the old zoning but greatly benefited by the new, the property values of homes nearby could be adversely affected by the particular classification into which the tract was put by the amendatory zoning ordinance.

Under its original classification, R-3, if the 96-acre tract were developed with single-family homes, there would be a population increase of about 600 persons. The multiple-family development contemplated by the rezoning, and permitted by the special use, would result in 2,003 housing units and generate a population increase between 4,000 and 6,000 people. This increase will require 2,982 parking spaces for automobiles owned by persons who will live in the development. According to an expert who testified for the plaintiffs, these automobiles will generate 20,000 vehicular trips per day to be absorbed by the 2 roads that border the tract. The same expert, basing his testimony on traffic counts and surveys, told the trial court that the increase of vehicular traffic into one of these roads, Forestview Drive, will approximate 400 cars in the morning peak hour compared to the 18 to 22 vehicles which then used the same road. On the other road, Sanders, according to the expert, traffic will be increased four times by the multiple family development.

In contrast with this testimony, an expert who testified for defendants, one who did not make a traffic count or survey, projected the increased use which the development will generate and gave his opinion that the two roads were adequate to deal with it because, he said, “[i]nitially the traffic would take the path of least resistance to each of the two facilities, Sanders and Forestview. It would then distribute itself in the path of least resistance again * * This testimony did not, and indeed could not, contradict plaintiffs’ evidence that the multiple family development was going to bring more automobiles into the roads in question. This being so, we bear in mind that one of the important purposes of zoning is the alleviation of traffic congestion. (Jarvis Acres, Inc. v. Zoning Commission (1972), 163 Conn. 41, 301 A.2d 244; Temmink v. Board of Zoning Appeals (1957), 212 Md. 6, 128 A.2d 256.) In fact, it is a statutory mandate that zoning in the county unincorporated areas have, as one of its purposes, the “* * * lessening or avoiding congestion in the public streets and highways * * (Ill. Rev. Stat. 1967, ch. 34, par. 3151.) In conflict with this mandate, it is clear that the rezoning in this case did not lessen or avoid congestion in the streets and highways involved.

Moreover, there was photographic and testimonial evidence, none of it contradicted, that the tract water table was so high that even a retention pond that was to be built on the development would not protect the front yards of nearby homes from being flooded occasionally by heavy rainfall. There was undisputed evidence that the multiple-family development will produce approximately 500 school-age children who will attend elementary schools' in 2 nearby districts. Officers from one testified, without contradiction, that its three elementary schools, including the one that would serve some of the children from the development, were overcrowded; and the district did not have bonding power sufficient to finance construction of additional facilities. The cost of a new school for grades from kindergarten to the sixth was between $900,000 and $1,300,000. He told the trial court that the district could not * * possibly expect to have money available to build another school within at least two years.”

Defendants, however, met this evidence with the testimony of an expert who analysed the real estate taxes which the multiple-family development will produce for the school districts affected. From his computations, which he revised at least once, he estimated that after the cost of educating the additional children were deducted from the contemplated real estate tax revenues, there would be an annual surplus in excess of $863,000. We think it obvious that these computations are dubious, to say the least. But even were they absolutely correct, we know that the educational needs of a child will not await the collection of real estate taxes. A child’s impact on available public school facilities occurs when he is moved into the community, not when the real estate on which he lives is taxed.

Furthermore, we know that the influx of 4,000 to 6,000 people into a community will require, in the public good, zoning considerations that contemplate more roadway and highway facilities, additional public schools, expanded public utilities and extended fire and police protection. It is for this reason that county authorities are told their zoning decisions must be “[f]or the purpose of promoting the public health, safety, morals, comfort and general welfare, conserving the values of property throughout the county * * (Ill. Rev. Stat. 1967, ch. 34, par. 3151.) In our judgment, the amendatory zoning ordinance adopted in this case by the Board of Commissioners of Cook County did not promote this purpose.

This is not a case, then, in which a zoning classification resulted in a relative gain to tire public and hardship to a property owner. As shown by a bare statement of the facts, the rezoning and special use were proposed by the owner of tire tract. The proposals were opposed by neighboring municipalities, the owners of abutting land and the owners of homes that were going to be adversely affected by the zoning change. These owners had the right to rely on the rule that a zoning classification will not be changed except for the public good. (See Northern Trust Co. v. City of Chicago, 4 Ill.2d 432, 123 N.E.2d 330; Central National Bank v. Village of Hoffman Estates, 10 Ill.App.3d 177, 293 N.E.2d 481.) They had the right to insist that the land use under the proposed rezoning be reasonable. (Sulzberger v. County of Peoria, 29 Ill.2d 532, 194 N.E.2d 287.) In a zoning context, use of land is reasonable when it is consistent with the public health, safety, morals and welfare. A change in zoning cannot be justified by the desires of certain individuals; it is justified only because the public welfare requires it. Wesemann v. Village of LaGrange Park, 407 Ill.81, 89, 94 N.E.2d 904.

Therefore, we conclude that measured by applicable standards of reasonableness, the decision of the Board of Commissioners of Cook County to rezone the 96-acre tract and grant the special use was an arbitrary and capricious exercise of its power to regulate the use and development of land within its jurisdiction. Public interest did not require rezoning of the tract from R-3, a single family, to R-6, a multiple-family use. The judgment is reversed and the cause is remanded with directions that the trial court grant the relief prayed by plaintiffs and the intervenor. Treadway v. City of Rockford, 28 Ill.2d 370, 192 N.E.2d 351; Garner v. City of Carmi, 28 Ill.2d 560, 192 N.E.2d 816.

Reversed and remanded with directions.

HAYES, P. J., and DOWNING, J., concur.

       Supreme Court Rule 305(g), Ill. Rev. Stat. 1971, ch. 110A, par. 305(g).
      “Appeals by Public Agencies. If an appeal is prosecuted by a public, municipal, governmental, or quasi-municipal corporation, or by a public officer in his official capacity for the benefit of the public, the trial court, or the reviewing court or a judge thereof, may stay the judgment pending appeal without requiring that any bond be given."

       Supreme Court Rule 343(b) (i), Ill. Rev. Stat. 1969, ch. 110A, par. 343(b) (i).
      “(i) Cross Appeals. A cross appellant shall file a single brief as appellee and cross appellant at the time his brief as appellee is due; the appellant’s answer to the arguments on the cross appeal shall be included in his reply brief; and the cross appellant may file a reply brief confined strictly to replying to those arguments within 14 days after the due date of the appellant’s reply brief.”

       Moreover, we observe that article VII, section 6(c) of the Illinois Constitution of 1970 provides that if a home rule ordinance conflicts with an ordinance of a municipality, the municipal ordinance shall prevail within its jurisdiction. This language, although not strictly applicable to this case, suggests the intent of the Constitutional Convention to recognize a priority of municipalities over counties when matters of local concern are involved.

       We take judicial notice that much of unincorporated Cook County, as it develops, becomes annexed to existing municipalities. Therefore, the Village of North-brook not only had a right, but a duty, to concern itself with the development of property practically adjoining its village limits. This property, the 96-acre tract, was close enough so that the village, within the interests of its police powers, was rightfully- concerned with the effect its development would have on the public health, safety, welfare and morals within the village. As a practical matter, highways, public water supply, sanitary sewers, storm sewers and drainage affected by nearby properties, in turn, directly affect the Village in discharging its duties within the scope of its police powers.

      Although a township has no authority to zone its land uses (see Town of Bloomington v. Murphy, 73 Ill.App.2d 417, 218 N.E.2d 817), the evidence in this case discloses that Northfield Township, in 1970, developed a comprehensive plan which was submitted to the Cook County Board of Commissioners for its approval. It appears, however, that no consideration was given the plan in connection with rezoning of the subject property.


source: Caselaw Access Project

author: Mr. JUSTICE DEMPSEY

license: Public Domain

text:
    James Ganley, Plaintiff-Appellee, v. The City of Chicago et al., Defendants-Appellants.
    (No. 57142;
    First District (3rd Division)
    March 7, 1974.

      Richard L. Curry, Corporation Counsel, of Chicago (William R. Quinlan, Edmund Hatfield, and Paul T. Foxgrover, Assistant Corporation Counsel, of counsel), for appellants.
    Anthony T. Buckun, Lawrence W. Weinstock, and David F. Holland, all of Chicago, for appellee.
   Mr. JUSTICE DEMPSEY

delivered the opinion of the court:

James Ganley, a real estate developer, applied to the Commissioner of Buildings of the City of Chicago for permits to construct three one-story, single-family residences at 6800, 6802 and 6804 North Olcott Avenue, Chicago. The permits were issued and Ganley immediately started excavating; he poured concrete foundations, put in sewers and did the back-filling for the buildings. On April 1, 1971, 3 weeks after permission to build was granted, the department of buildings revoked the permits and halted the construction. On July 13, 1971, the Chicago Park District designated the property as a park site and authorized acquisition of the land. Ganley then filed a complaint for mandamus to compel the reissuance of the permits. After a hearing, the trial court issued the writ.

The evidence showed that Ganley bought 100 front feet of land on North Olcott. The property consisted of four 25-foot lots numbered 22, 23, 24 and 25. (I.e., 6806, 6804, 6802 and 6800 North Olcott.) He paid $12,500 for lot 22 and $12,000 each for lots 23, 24 and 25. Lot 22 was vacant; he built a one-family brick house on the lot and sold it for $37,500. A large frame residence was situated on lots 23, 24 and 25. He intended to build houses on these lots similar to the one he had constructed on lot 22 and had the residence demolished for this purpose. When the neighbors realized what was taking place they protested. Their complaints and demonstrations were heeded and the building permits were withdrawn.

Ganley was invited to attend a meeting in the building commissioner’s office. He was told that his proposed buildings did not conform with the type and size of the other residences in the area, and he was asked to change his plans and build two houses instead of three on the 75 feet of land. Ganley, who had erected approximately 150 buildings during his 15 years in the real estate business, refused because, he said, he had between $42,000 and $43,000 invested in the 3 lots.

The principal contention of the City of Chicago and its Commissioner of Buildings is that Ganley is attempting to circumvent the minimum lot size restriction of the Chicago zoning ordinance by demolishing a single-family residence in order to erect houses on lots which are substandard in area. An amicus curiae brief, filed on behalf of the Edison Park Community Council, makes the same argument. Since the resolution of this contention is dispositive of this appeal and we find no merit to the defendants’ other contentions, we will limit our discussion to whether the zoning ordinance permitted the construction undertaken by Ganley.

Ganley testified that the majority of houses in the area surrounding lots 23, 24 and 25 were on 25-foot lots, but there were vacant lots around the houses. He stated that the houses which he intended to build were comparable in value to the surrounding structures. The plat of the original subdivision was introduced into evidence. It showed that the pertinent side of the Olcott block was divided into 25 lots; 24 had 25 feet of frontage and 1 had 39 feet.

The chief code enforcement officer for the department of buildings testified that in the two-block area surrounding the three lots, 95% of the residences were on lots which averaged 50 feet. A code-enforcement supervisor testified that the average frontage was 50 to 75 feet. A land use map was received in evidence which showed that there were 11 residences in the 6800 block of Olcott in addition to the one purchased by Ganley. The map showed the condition of the four lots before Ganley bought them. The frame residence was on land which measured 75 feet x 147 feet. The lot next to the residence, at 6806 North Olcott, measured 25 feet by 147 feet and was vacant.

The pivotal issue between the parties concerns the interpretation of three articles of the Chicago Zoning Ordinance and their application to Ganley’s property. Article 7.5—2 defines the minimum lot area permissible in a single-family residence district;

“In an R2 District, there shaH be provided not less than 5,000 square feet of lot area per dwelling unit, except that in cases where the predominant number of lots of record on the effective date of this comprehensive amendment, fronting on the same side of the street between the two nearest intersecting streets, have a lot area less than that prescribed by the regulation of this district, then, and in that event, the lot area requirement shall be that of existing lot areas in the area previously described, but in no event shall tire lot area requirement be less than 3,750 square feet.” The Municipal Code of Chicago, 1971, ch. 194A, sec. 1, part A, art. 7.5—2.

Lots 23, 24 and 25 are in an R2 single-family residence district. Each lot has an area of only 3,675 square feet, hence each one is 1,325 square feet less than the minimum number required in an R2 district. Furthermore, even if the lots came within the ordinance’s exception they would not qualify for its benefits, for their square foot areas of 3,675 feet do not meet the ordinance’s mandate that, “in no event shall the lot area requirement be less than 3,750 square feet.” Thus, the buildings proposed by Ganley would violate the minimum requirements of article 7.5—2 and increase the density of the neighborhood.

Ganley, however, argued in the trial court and argues here that another provision of the zoning ordinance allows the contemplated buildings. Reliance is placed upon article 7.5(2) which states:

“In any Residence District a one-family dwelling may be established on a lot of record on the effective date of this comprehensive amendment regardless of the size of the lot; also if this lot of record is voluntarily increased in size and still does not comply with the minimum lot area requirement of tire district, a one-family dwelling shall be permitted provided that all other requirements of this comprehensive amendment are met * * Municipal Code of Chicago, 1971, ch. 194A, sec. 1, part A, art. 7.5(2).

It is the City’s position that article 7.5(2) applies to lots that are vacant and not to lots which have been improved, such as lots 23, 24 and 25, where a conforming use is removed in an attempt to avoid the applicable minimum lot area requirements. In support of this position, article 5.7—2 of the ordinance is cited. This article provides that:

“No improved zoning lot shall hereafter be divided into two or more zoning lots and no portion of any improved zoning lot shall be sold, unless all improved zoning lots resulting from each such division or sale shaH conform with all the applicable bulk regulations of the zoning district in which the property is located * * *.” Municipal Code of Chicago, 1971, ch. 194A, sec. 1, part A, art. 5.7—2.

Ganley protests that the defendant should not be permitted to make use of article 5.7—2 in this court because they did not cite this provision of the ordinance in the trial court. We regret that article 5.7—2 was not brought to the attention of the trial court. However, the defendants’ theory on appeal, that an improved conforming parcel of land may not be divided to provide for lots which do not conform with the minimum area requirements of the zoning district, is the same as the one advanced by them in the trial court; the only difference in their respective positions is the authority urged in support of the theory. Therefore, the procedural rule of law that a party cannot advance a theory on review which was not raised in the trial court does not apply in the present instance.

Article 5.7—2 implements the power of a municipality to regulate and limit the intensity of use of lot areas by providing for the continued conformity with zoning regulations, once a parcel of land has received a zoning status on an improved basis. (Mitchell v. Zoning Board of Appeals (1970), 125 Ill.App.2d 1, 260 N.E.2d 454.) The fact that a conforming parcel of land had been platted into lot sizes which were individually less than the minimum specifications required by the applicable zoning law, does not vest the owner of the parcel with the right to evade the zoning law by establishing nonconforming uses out of that parcel. See Weber v. Village of Skokie (1968), 92 Ill.App.2d 355, 235 N.E.2d 406.

It is important to note the difference between a “zoning lot” and a “lot of record.” The zoning ordinance defines the terms as follows:

“Lot of Record. A “lot of record’ is an area of land designated as a lot on a plat of subdivision recorded or registered, pursuant to statute, with the Recorder of Deeds of Cook County and the Ex-officio Examiner of Subdivisions of the City of Chicago. Lot, Zoning. A ‘zoning lot or lots’ is a single tract of land located within a single block, which (at the time of filing for a building permit) is designated by its owner or developer as a tract to be used, developed or built upon as a unit, under single ownership or control. Therefore, a ‘zoning lot or lots’ may or may not coincide with a lot of record.” Municipal Code of Chicago, 1971, ch. 194A, sec. 1, part A, art. 3.2.

Ganley argues that lots 23, 24 and 25 do not come within the meaning of a zoning lot as defined in article 3.2 of the 1957 ordinance, because the “old house” built on them was constructed before the 1957 zoning ordinance became effective, and that there was no evidence that their owner, following the passage of the ordinance of 1957, designated them to be used as one unit. As pointed out by him, the record is silent as to when the frame residence was built or whether a permit was obtained before it was built. However, prior zoning ordinances of the City of Chicago provided for zoning lots and the provisions were applicable to parcels of land used or intended to be used as one unit, or occupied or intended to be occupied by one building. Zoning Ordinance of 1942, section 2; Zoning Ordinance of 1923, section 2(m).

At the time of Ganley’s purchase, lots 23, 24 and 25 were used as one entity, and one residence, 40 feet in width and 52 feet in length, was situated on them. Their status at that time was determined by their use, not as individual lots, but as an entire parcel. Although platted as three lots, they were used as one zoning lot which was in compliance with the minimum area restrictions of the zoning district.

Permitting Ganley to build three structures on the one zoning lot would enable him to create three non-conforming uses where none existed before. It would contravene the intent of the zoning ordinance as a whole. It would not comply with the density provisions of article 7.5—2 and would violate the prohibition against the expansion of nonconforming uses implicit in article 5.7—2. Article 7.5(2) does not prevail over articles 7.5—2 and 5.7—2, and it is not an exception to them. Article 7.5(2), when read in conjunction with the other articles, permits the construction of a single-family residence on an unimproved lot of any size—if it was a lot of record before the passage of the zoning ordinance. If tire lot has been improved, the density strictures of the ordinance must be observed. Article 7.5(2) does not exempt all lots of record from the minimum area restrictions, and improved lots, which are in conformity with the zoning regulations, do not revert to their original status when the improvement is removed.

The final order of the trial court was formulated upon the ground that the building permits were revoked without legal cause and that Ganley was entitled to their reissuance. In his petition, Ganley did not claim that the defendants were estopped from refusing to reissue the permits because of the work performed and the money spent by him after the permits were initially granted. However, in its oral decision, the court mentioned these factors as an additional reason for issuing the writ of mandamus. Ganley adopts this reason in his brief and claims that, after the permits were issued and he performed detailed work, he should be permitted to complete the work and use the property as intended.

The general rule in Illinois is that any substantial change of position, expenditure, or incurrence of obligation occurring under a building permit validly issued is sufficient to create a right in the permittee which entitles him to complete the construction and to use the premises for' the purposes originally authorized, irrespective of subsequent zoning or a change in zoning classification. People ex rel. Interchemical Corp. v. City of Chicago (1963), 29 Ill.2d 446, 194 N.E.2d 199; Nott v. Wolff (1960), 18 Ill.2d 362, 163 N.E.2d 809; People ex rel. Gustafson v. Calumet City (1968), 101 Ill.App.2d 8, 241 N.E.2d 512.

The rule that a permittee has the right to construct a building after being issued a building permit and making substantial expenditures, is not applicable to this case. Following the granting of the permits, there was no zoning enactment nor change in zoning classification. The vesting of the right presupposes a legal building permit and a substantial change of position incurred in good faith reliance thereon by the property owner. (City of Chicago v. Zellers (1965), 64 Ill.App.2d 24, 212 N.E.2d 737.) Ganley followed normal administrative procedure in submitting his plans. The permits were issued by a ministerial officer. The illegal issuance of permits by a ministerial officer does not estop a muncipality from relying on the illegality, notwithstanding the fact that the applicant may have expended money or incurred obligations in good faith and in substantial reliance upon the permit (City of Rockford v. Sallee (1970), 129 Ill.App.2d 75, 262 N.E.2d 485), unless the applicant was actively misled by the officer (Cities Service Oil Co. v. City of Des Plaines (1961), 21 Ill.2d 157,171 N.E.2d 605). A city cannot be estopped by an act of its agent beyond the authority conferred upon him; anyone dealing with a governmental body takes the risk of having accurately ascertained that he who purports to act for it stays within the bounds of his authority. (People ex rel. American National Bank & Trust Co. v. Smith (1969), 110 Ill.App.2d 354, 249 N.E.2d 232.) A building permit cannot be granted in violation of the terms of a zoning ordinance; an unauthorized permit is a nullity and it confers no right on the permittee. (10 I.L.P. (1965), Cities, Villages and Other Municipal Corporations, sec. 1147, at 79.) No greater right can be conferred upon a permittee by a building permit than those sanctioned by the ordinance itself. 1 Yokely, Zoning Law and Practice (3d ed. 1965), sec. 9—6, at 412-13.

Mandamus is not a writ of right. It is an extraordinary remedy and the relator seeking the writ must show a clear legal right to the relief requested. (Lenit v. Powers (1969), 120 Ill.App.2d 411, 257 N.E.2d 142; Houswerth v. Seidel (1964), 47 Ill.App.2d 112, 197 N.E.2d 271.) At best, Ganley s legal right to the relief he sought was questionable, and die writ of mandamus should not have been issued.

A question has been raised as to the effect of the Chicago Park District ordinance on Ganley’s use of the North Olcott Avenue property. The ordinance, which authorized acquisition of the land for park purposes, has no effect on our decision which adjudicates the dispute between Ganley and the City of Chicago. Under our decision, Ganley may divide the vacant property into two conforming lots and he is entitled, as the City has recognized, to a building permit for a residence on each lot. Whether he should proceed to develop tire property is a matter between him and the Park District. However, he has pointed out, and the City concedes, that nothing has been done by the district to implement the ordinance from the date of its passage in July 1971 up to the time of oral argument in this court. This cause will therefore be remanded to the trial court for the purpose of conducting a hearing as to whether the district intends to acquire the land for use as a public park. If the district does so intend it should proceed with the acquisition; if it does not it should repeal its ordinance.

Reversed and remanded with directions.

McNAMARA, P. J., and McGLOON, J., concur.


author: Mr. JUSTICE MEJDA

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Jeffrey Carruthers, a/k/a Jeffrey Corethers, et al., Defendants-Appellants.
    (No. 57507;
    First District (3rd Division)
    March 7, 1974.

      James J. Doherty, Public Defender, of Chicago (Michael Weininger, Assistant Public Defender, of counsel), for appellants.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Robert Cohen, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE MEJDA

delivered the opinion of the court:

Defendants, Jeffrey Carruthers (also known as Jeffrey Corethers) and Johnny Brown, were both found guilty by a jury of the offenses of murder and rape. Each defendant was sentenced to the penitentiary to serve 20 to 50 years for murder and 10 to 20 years for rape, to run consecutively. Both defendants appeal. On review, they contend that:

(1) the trial court denied a fair and impartial jury by prohibiting direct personal questioning of prospective jurors by their attorneys on voir dire examination;
(2) participation in the offense was not proved beyond a reasonable doubt;
(3) improper closing arguments of prosecution destroyed the presumption of innocence and shifted the burden to defendants; and
(4) the court erred in ordering consecutive sentences.
Defendant Carruthers further contends that
(5) the trial court erred in refusing to strike incompetent rebuttal testimony as to defendant’s reputation.

The pertinent facts are hereinafter set forth.

On April 26, 1970, a group of between 5 and 15 Negro youths accosted Salvador Cabera and his girl friend Juanita Gonzalez, as they walked through Douglas Park in the city of Chicago. Cabrera died later that day of severe head injuries he sustained after being struck repeatedly with a baseball bat wielded by two of the youths. Miss Gonzalez was raped by four of the youths. The attacks occurred at 9 P.M. in a city park which is not well lighted at night. The two defendants were arrested the following day and charged with murder and rape.

At trial Regina Bradford testified that she and two friends were in the park and observed the attacks on Cabrera and Miss Gonzalez. She testified that Carruthers took a bat from defendant Brown’s hand and struck Cabrera with it; that defendant Brown then took the bat from Carruthers and hit Cabrera with it again; and that the two defendants, along with two other youths, then carried Miss Gonzalez off in the direction of a bridge in the park. She further testified that at tire time of the attacks she noticed white lines running across tire top of defendant Carruthers’ head. On cross-examination the witness admitted that she had known tire defendants for some time and had never been on good terms with either of them, and that she had once tried to stab defendant Brown. She further admitted that she had been in the park prior to the attacks with one of the youths involved in the incident, and that she had told the police she did not see defendant Brown hit Cabrera. She testified that she did not remember telling the grand jury that she did not see defendant Brown hit Cabrera.

Eddie Morgan testified that he had been playing ball in the park and had observed the attack upon Cabrera. He stated that defendant Carruthers repeatedly hit Cabrera with a bat; that he could not identify defendant Brown as being in the attacking group; and that he left the park immediately after the attack upon Cabrera was begun by defendant Carruthers. The witness further stated that he did not see anyone raped. On cross-examination he admitted that he had told the police defendant Carruthers had taken the bat from the hand of a “Ronnie C” and hit Cabrera with it.

Juanita Gonzalez testified that each of the defendants had hit Cabrera with a bat and then, together with two other boys, raped her. On cross-examination she stated that all of the boys looked alike; that she was tripped and raped immediately adjacent to where the attack upon Cabrera had occurred; and that she could not recall how long the attack and rape had taken.

Grace Carruthers testified on behalf of her grandson, defendant Carruthers, that April 26, 1970, between 6 P.M. and 9:45 P.M., the defendant was with her in their home at 1328 South Claremont in Chicago. Earline Hudson testified on behalf of defendant Carruthers that she is a resident of the apartment building at 1328 South Claremont, and that on April 26, 1970, she saw defendant Carruthers leave the building between 9:30 and 9:45 P.M.

The jury returned verdicts of guilty against each defendant on the murder and rape charges. After a hearing in aggravation and mitigation, in which it was determined that the defendants had no previous criminal convictions, the trial court sentenced each defendant and ordered that the individual sentences were to run consecutively. We proceed to a consideration of defendants’ contentions upon appeal.

We consider initially defendants’ contention that they were denied their right to a fair and impartial jury by the trial court’s refusal to allow their attorneys to ask questions directly of the prospective jurors during the voir dire examination. Prior to commencing voir dire examination and over objection, the trial court ruled that pursuant to Supreme Court Rule 234, neither defense counsel nor the prosecution could personally direct questions to the prospective jurors. The attorneys were allowed to submit questions in writing which the trial court would ask of the prospective jurors and also to submit supplemental questions for the judge to ask whenever the attorneys deemed it necessary. The attorneys for both defendants and for the State submitted proposed questions. The trial court resolved all objections relative to the proposed questions and conducted the entire voir dire examination. At a point during the examination, when defendants had only one peremptory challenge remaining, defendants’ counsel requested and were denied permission to personally question a prospective juror who was a former police officer and an acquaintance of an F.B.I. agent. After a denial of defendants’ motion to excuse for cause, the prospective juror was excused by defendants with the remaining peremptory challenge. After having exhausted the peremptory challenges the court again refused a defense request to directly question a prospective juror—a woman—who upon questioning by the court revealed that she vaguely remembered reading something about the case but assured the court she would not be prejudiced by what she read. The court denied the motion of the defense attorneys to excuse the juror for cause. No additional questions were submitted to the trial court to be asked of either of those two prospective jurors. Defendants do not argue that the court erred in not excusing either of the prospective jurors for cause, nor that the jury finally selected was not fair and impartial, nor specify any other prejudicial error in the jury selection. Instead, the events relating to the examination of those two prospective jurors are urged as illustrative of how the defendants were denied the right to a fair and impartial jury by not permitting direct questions by their attorneys.

In Illinois, applicable to both civil and criminal proceedings is Supreme Court Rule 234 (Ill. Rev. Stat. 1969, ch. 110A, par. 234) which provides as follows:

“Rule 234. Voir Dire Examination of Jurors.
The judge shall initiate the voir dire examination of jurors by identifying the parties and their respective counsel and briefly outlining the nature of the case. The judge shall then put to the jurors any questions which he thinks necessary, touching their qualifications to serve as jurors in the cause on trial. The parties or their attorneys shall be allowed a reasonable opportunity to supplement such examination, but shall not directly or indirectly examine jurors concerning matters of law or instructions.”

The effect of the foregoing provisions is to place the primary duty of conducting voir dire examination upon the trial court, subject to a reasonable opportunity to supplement such examination by the parties or their attorneys. In People v. Lobb (1959), 17 Ill.2d 287, the Illinois Supreme Court stated that although the selection of an impartial jury does not require that the parties themselves be permitted to examine on voir dire, the court, in formulating Rule 24—1 (the present Rule 234) recognized and preserved that privilege by providing that the parties or their attorneys be allowed a reasonable opportunity to supplement the examination conducted by the court. While the trial court is vested with considerable discretion as to the extent to which supplementary questioning by the parties or their attorneys will be allowed (People v. Lexow (1962), 23 Ill.2d 541), it appears, under the authority of Lobb, that direct questioning of prospective jurors by the parties or their attorneys during voir dire examination is not to be totally prohibited. (See Street v. Finney (1973), 9 Ill.App.3d 638.) The Illinois rule differs from the federal rule where counsel may be required to ask questions through the court. (Fed. R. Civ. P. 47(A); and Fed. R. Crim. P. 24(A).) Our ruling is consistent with the provisions set forth in section 115—4(f) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1971, ch. 38, par. 115— 4(f)), which provides:

"(f) After examination by the court the jurors shall be examined, passed upon, accepted and tendered as a panel of 4 commencing with' the State.”

We do not conclude, however, that the procedure employed by the trial court in the instant case, if error, was so prejudicial to the defendants as to require a new trial. In Lobb the court stated that a failure to permit pertinent inquiries to enable a party to ascertain whether the minds of the jurors are free from bias or prejudice which would constitute a basis for challenge for cause, or which would enable him to intelligently exercise his right of peremptory challenge, may constitute reversible error. The questions and answers in the examination of the jurors by the trial court in the instant case have been reviewed and the possible effect of the limitations imposed by the court have been considered. It is noted that no additional questions were submitted to the trial court by counsel to be propounded to either of the two prospective jurors herein-before discussed.

From our examination there is nothing to show that the defendants’ attorneys were prevented from discovering any fact or reason why a prospective juror might be biased or lack the essential qualifications for service as a juror in the case. Moreover, there is nothing to indicate that the defendants’ attorneys were precluded from an intelligent exercise of the right of peremptory challenge by the prohibition imposed by the court against direct questioning. Counsel were directed to submit any supplemental questions deemed necessary to be asked of the jurors by the court, but their failure to avail themselves of the privilege serves only to emphasize the fact that the examination of the court was sufficiently thorough to reveal any facts necessary to show grounds of challenge for cause or for an intelligent exercise of the right to challenge peremptorily. (See People v. Lobb, 17 Ill.2d 287, at 302.) Where a voir dire examination—whether conducted by the court or by counsel— results in a qualified and impartial jury, no prejudicial error occurs in its selection. Justice v. Justice (1969), 114 Ill.App.2d 254.

In light of the foregoing we therefore conclude that the limitations imposed upon voir dire examination, although not literally authorized by Supreme Court Rule 234, were not of such nature as to constitute reversible error.

The defendants’ second contention is that their identification as participants in the offenses was not proved beyond a reasonable doubt. Four arguments are presented by defendants in support of this contention: the setting of the offense was not conducive to a trustworthy identification; the identification testimony of Regina Bradford, Eddie Morgan and Juanita Gonzalez was weak, contradictory and inconsistent with prior statements; the in-court identifications by Regina Bradford and Juanita Gonzalez were the result of pretrial suggestion by the police; and the failure of the State to call the two occurrence witnesses who were with Regina Bradford at the time of the offenses, or to explain their absence, raises a strong inference that their testimony would be damaging to the State’s case.

The first two arguments as to the setting of the offenses and the character of the identification testimony presented at trial are challenges to the sufficiency and credibility of the testimony therein. Questions of identification are for the determination of the jury whose decision should not be upset unless the evidence is so unsatisfactory and implausible as to create a reasonable doubt of a defendant’s guilt. (People v. Tucker (1969), 118 Ill.App.2d 136.) In the instant case Carruthers was identified by the victim of the rape and additionally by two eyewitnesses, both of whom testified that this defendant was previously known to each of them. Defendant Brown was also identified by the rape victim and by one of the eyewitnesses who testified that she had also previously known this defendant. The other eyewitness testified that he left the park immediately after defendant Carruthers began the attack on Cabrera and he was therefore not in a position to observe the subsequent actions of defendant Brown or the attack on Miss Gonzalez, The adequacy of the lighting at the scene of the offenses, a detail in the appearance of one of the defendants which only one of the witnesses could recall observing, and the inconsistencies of the eyewitnesses’ testimony to their prior statements were all brought to the attention of the jury for their use in deliberating the sufficiency and credibility of the identification testimony. This testimony, if believed, was not so unsatisfactory or implausible as to require that the jury’s determination be upset.

The defendants further maintain that the in-court identifications by Regina Bradford and Juanita Gonzalez were the result of pretrial police suggestion and therefore should have been suppressed by the trial court. Both of the defendants were arrested the day after the attacks upon Cabrera and Miss Gonzalez. On the day of his arrest, defendant Brown, while handcuffed to a window screen and alone in an interrogation room at the local station house, was viewed by Regina Bradford and identified by her as one of the youths who had struck Cabrera and raped Miss Gonzalez. Regina Bradford testified at trial that she had known each of the defendants for 5 years and had attended school with them. Two days after the attacks, Juanita Gonzalez identified the 2 defendants from a book of 200 police mug shots but indicated to the police that she wished to see a full photograph of defendant Carruthers. Later that day at the office of the State’s Attorney she again identified defendant Brown and defendant Carruthers from a group photograph of six Negro youths. Neither defendant was ever placed in a lineup for purposes of identification.

Prior to trial, each defendant moved the court to suppress all testimony concerning pretrial identifications and to suppress all in-court identifications. The trial court suppressed all testimony concerning pretrial identifications based on photographs because no attorney had been provided for the defendants at the time of their arrest. However, the court denied defendants’ motion to suppress all in-court identifications and found specifically as to Juanita Gonzalez that any in-court identification by her would have an origin independent of the photographs she had been shown by the police.

In support of his assertion that the trial court erred in not suppressing the in-court identification by Regina Bradford, defendant Brown cites Stovall v. Denno (1967), 388 U.S. 293; People v. Blumenshine (1969), 42 Ill.2d 508; and People v. Laurenson (1971), 131 Ill.App.2d 2, 268 N.E.2d 183. These cases hold that identification procedures in which an accused is exhibited to witnesses alone, in the absence of any justifying or saving circumstances, are so improperly suggestive as to amount to a denial of due process. One saving circumstance which will prevent a denial of due process in such cases was established in People v. Robinson (1969), 42 Ill.2d 371. There the court held that when an accused is known to the identifying witness prior to the commission of the crime, no question relating to the propriety of the identification procedures can arise since the identification in such a case would be independent and not influenced by any pretrial confrontation. In tire instant case, Regina Bradford testified that she had known the defendants for 5 years and had attended school with each of them. She further testified that she had never got along very well with either of the defendants, and on one occasion had even attacked defendant Brown with a knife. In light of this testimony, it is obvious that defendant Brown was well known to the witness at the time of her identification of him in tire interrogation room and for a period of time prior to the commission of the offenses herein. Under these circumstances the trial court was correct in refusing to suppress Regina Bradford’s in-court identification of defendant Brown.

In support of their assertion that the trial court erred in not suppressing the in-court identifications by Juanita Gonzalez, the defendants cite People v. Holiday (1970), 47 Ill.2d 300. In that case the court held that under Simmons v. United States (1968), 390 U.S. 377, a conviction based on in-court eyewitness identification following a pretrial photographic identification will be set aside on that ground only if the pretrial photographic procedures are so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. A defendant who moves to suppress identification on the ground of suggestive pretrial procedures has the burden of showing that the procedures employed were so impermissibly suggestive and conducive to misidentification that he was denied due process of law. People v. Nelson (1968), 40 Ill.2d 146.

At the hearing on defendants’ motion to suppress, Miss Gonzalez testified that she was standing with Cabrera when the two defendants and the other boys approached them; that she was at Cabrera’s side when he was questioned briefly by defendant Carruthers; and that she observed each of the defendants strike Cabrera prior to their attack upon her. She further testified that 2 days later she identified each of the defendants from a book of 200 police mug shots; that the police officers present in no way directed her attention to the defendants’ photographs; and that after she expressed a desire to see a full body photograph of defendant Carruthers she again identified each defendant from a group photograph of 6 Negro youths. As stated by the trial court in denying defendants’ motion to suppress this witness’ testimony, there is nothing in the record to indicate that the police suggested to Miss Gonzalez the defendants’ participation in the crimes or that their photographs were drawn to her attention prior to her independent examination of them. The defendants clearly failed to meet their burden of showing that any in-court identification by Miss Gonzalez ran the substantial likelihood of being the result of pretrial police suggestion rather than a recollection of independent origin on her part.

The final argument presented by the defendants in their contention that their participation in the offenses was not proved beyond a reasonable doubt pertains to the failure of the State to call the two occurrence witnesses who were with Regina Bradford at the time of the commission of the offenses. The defendants cite People v. Smith (1971), 3 Ill.App.3d 64, and People v. DiVito (1966), 66 Ill.App.2d 282, for the proposition that the failure to call these two witnesses or explain their absence gives rise to a strong inference that their testimony would be damaging to the State’s case. While circumstances can exist, as in Smith and DiVito, where the failure by the State to call known and available witnesses will lead to a negative inference, the general rule is that the State is not obligated to call all witnesses to a crime, and no inference will arise from the failure to do so. (People v. Jones (1964), 30 Ill.2d 186.) In the instant case, the State produced two eyewitnesses and one victim of the offenses. All three witnesses corroborated each other as to the attack on Cabrera by defendant Carruthers. Miss Gonzalez and Regina Bradford corroborated each other as to the attack on Cabrera by defendant Brown and Miss Gonzalez’ subsequent rape by the two defendants. On the basis of such testimony, no negative inferences can arise from the failure of the State to call the two occurrence witnesses who were with Regina Bradford at the time of the commission of the offenses.

After consideration of all of the above arguments we feel that the identifications of the defendants as participants in the two offenses involved herein were proved beyond a reasonable doubt.

Defendant Carruthers makes the further contention that the trial court erred in refusing to strike incompetent rebuttal testimony as to his reputation. In rebuttal to a reputation witness who had testified for defenddant Carruthers, the State called one Montague Martin who testified on direct examination that Carruthers’ reputation in the community as a law-abiding citizen was bad. On cross-examination, Martin stated that his testimony was based in part upon conversations he had with people in the community after the commission of the offenses in question. The trial court denied Carruthers’ motion to strike all of Martin’s testimony.

It is well settled that the character of an accused is provable only by evidence of general reputation, and that the personal opinion of a witness is not competent evidence to prove general reputation. (People v. Lyons (1954), 4 Ill.2d 396.) Moreover, evidence of character must be confined to proof of general reputation at or before the commission of the offense, and it is improper to admit evidence which covers an accused’s reputation after the commission of the offense or what was said after the commission of the offense with reference to the accused’s character either before or after the offense. (Pople v. Willy (1921), 301 Ill. 307.) Here, it was clearly established on cross-examination that Martins testimony as to the general reputation of defendant Carruthers was based upon an incompetent foundation. The trial court erred in denying the defendant’s motion to strike this testimony. However, in light of the strong testimony presented that defendant Carruthers instigated the attack upon Cabrera and the testimony presented as to his participation in the subsequent rape of Miss Gonzalez, we do not conclude that this defendant was so prejudiced by the admission of this testimony that a new trial is required.

Defendants next contend that the closing argument of the assistant State’s Attorney destroyed the presumption of innocence and shifted the burden of proof to the defendants. Although the prosecutor’s remarks were directed solely to defendant Brown, defendant Carruthers urges that he was also inherently prejudiced by the same remarks. During his opening statement, defendant Brown’s attorney stated to the jury that Brown might offer an alibi defense but that he could not tell the jury what that defense might be because the prosecution would then learn of it. No alibi defense was made by defendant Brown during the course of the trial. In his closing argument to the jury, the same defense attorney stated that the reason Brown had not testified in his own behalf was that the State had failed to prove him guilty beyond a reasonable doubt and hence, such testimony was not needed. Subsequently, the assistant State’s Attorney stated in his closing argument that the reason Brown had not testified was because he was afraid to do so in view of the fact that he could find no one who would testify for him in alibi. This response by the assistant State’s Attorney made no reference to the alibi defense which defendant Carruthers had presented. Defendant Brown’s attorney objected to the prosecutor’s remark, but the objection was overruled by the trial court on the basis that it came as a proper reply to a defense argument in an area which had been opened up in the defense attorney’s closing argument. No objection to the prosecutor’s remark was made by defendant Carruthers.

It is conceded by the defendants that while a prosecutor normally may not comment on an accused’s failure to testify, such comment may be proper when that area has been opened to fair comment by the accused’s first directing the jury’s attention to it himself. (People v. Finney (1967), 88 Ill.App.2d 204.) Instead, the defendants, citing People v. Weinstein (1966), 35 Ill.2d 467, and People v. Smith (1969), 105 Ill.App.2d 8, respectively, argue that in the present case the prosecutor’s remarks transcended the bounds of fair comment in that they shifted the burden of proof to defendant Brown to prove his innocence and implied that defendant Brown was guilty because he had no alibi witnesses to testify on his own behalf. We disagree.

A situation analagous to the one before us arose in People v. Weisberg (1947), 396 Ill. 412. There, the defendant appealed from a murder conviction in part upon the closing argument of the prosecutor which made mention of a currently notorious crime and maintained that when the perpetrator was found and tried, his attorney would attempt to place the prosecutor on trial and “fog up” the issues just as was being attempted in the case before them. The court held that an attorney for a defendant cannot provoke a reply to his own improper argument and then claim error, and that the closing remarks of the prosecutor in that case were in proper response to the opening arguments of the defense attorney in which the motives of the prosecutor were impugned and wherein the first mention was made of the current notorious crime.

In the instant case defendant Brown’s attorney informed the jury during opening argument that Brown might offer an alibi defense, but that he could not state what that defense was. When the reason why defendant Brown did not testify in his own behalf was opened to fair comment by the closing argument of his attorney, the prosecutor expressed the challenged comment in the form of a response to the closing argument and a refutation of the opening statement of defendant’s attorney concerning Brown’s potential alibi defense. Under such circumstances, the defendant may not predicate error on a response by the prosecutor which he himself provoked.

Defendant Carruthers’ assertion that he was prejudiced by these remarks of the prosecutor which were directed solely at his codefendant is without merit. The remarks were not intended nor calculated to draw the jury’s attention to the fact that defendant Carruthers had not testified, and in the absence of such were not prejudicial as to him. People v. Mentola (1971), 47 Ill.2d 579.

The defendants contend finally that the trial court abused its discretion in ordering consecutive sentences imposed upon two defendants who were 15 and 17 years of age and who had no prior criminal convictions. Ill. Rev. Stat. 1969, ch. 38, par. 1—7 provides that it is within the discretion of the trial court to order consecutive sentences where a defendant is convicted of two or more offenses which do not result from the same criminal conduct. The defendants concede the applicability of this statute to the two offenses for which they were found guilty and that the individual sentences imposed for each of these offenses are within the proscribed statutory limits. The record reflects that during the hearing in aggravation and mitigation the Rial court, in deliberating the length and form of the sentences to be imposed, carefully considered the defendants’ ages and lack of criminal record, as well as the serious nature of the offenses involved. We find no abuse of discretion on the part of the trial court in ordering consecutive sentences for the defendants in the instant case. People v. Armstrong (1970), 127 Ill.App.2d 457.

For the reasons stated herein the judgments and sentences of the Circuit Court of Cook County are affirmed.

Affirmed.

McNAMARA, P. J., and DEMPSEY, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Charles Doss, Jr., Defendant-Appellant.
    (No. 58087;

    First District (3rd Division)
    March 7, 1974.
    James J. Doherty, Public Defender, of Chicago (Ronald P. Alwin, Assistant Public Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis, Barry Rand Elden, and Timothy John Lee, Assistant State’s Attorneys, of counsel), for the People.
   Opinion by Mr. PRESIDING JUSTICE McNAMARA.


text:
    The People ex rel. Valeria Staples, Plaintiff-Appellee, v. Floyd Prude, Defendant-Appellant.
    (No. 58645;
    First District (3rd Division)
    March 7, 1974.
    Gates W. Clancy and James S. Mills, both of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Donald P. Smith, Assistant State’s Attorney, of counsel), for appellee.
   Mr. JUSTICE DEMPSEY

delivered the opinion of the court:

This is a paternity case. The defendant, Floyd Prude, appeals from a judgment which found him to be the father of a chüd bom to the plaintiff, Valeria Staples. His contentions are two: the judgment of paternity was contrary to the weight of the evidence, and the trial court violated his right against self-incrimination by ordering him to answer interrogatories propounded by the plaintiff.

Valeria Staples, a divorcee since 1965, testified that she first met Floyd Pmde in December 1969, after Christmas. She related that she first had sexual intercourse with him prior to January 1, 1970, in her apartment, and that they continued to meet and have intercourse almost daily from that time until the first week in February. She did not see him afterwards, but telephoned him in May 1970 to inform him that she was pregnant. She explained that her delay in telling him was because she wanted to be certain of her condition. The baby was bom November 21, 1970, delivered by Doctor Sidney Lash. It was the uncontested testimony of the plaintiff that the doctor told her the child was about three weeks overdue. She denied engaging in sexual relations with anyone except Prude between December 26, 1969, and February 15, 1970.

On cross-examination, the plaintiff was shown copies of the baby’s birth and baptismal certificates, each of which bore different names of the putative father. The birth certificate named “Herschel Staples” as the father. The. plaintiff explained that when she checked into the hospital to deliver the baby she was asked her marital status and responded “divorced.” She was then asked the name of her ex-husband and replied “Horatio Staples.” According to her story, the hospital then entered a variation of that name when it later completed the birth' certificate, without further questioning her. The baptismal certificate named “Floyd Staples” as the father. She explained that when she was preparing to have the child baptized she was asked the first name of the father and she answered “Floyd”; she volunteered nothing further because of her embarrassment over the child’s illegitimacy.

Diane Marsalis, a witness for tire plaintiff, testified that she knew Floyd Prude, having first met him in January 1970, when he visited her apartment with Valeria Staples, whom she had known many years. She saw them together again in late January or early February, and she spent an evening in their company at a friend’s birthday party. She stated that Floyd left the party with Valeria.

Barbara Prude, wife of Floyd Prude, testified that she married the defendant in December 1970 and that in January or February of 1971 Valeria Staples approached her in a cocktail lounge and, in the presence of her husband, told Barbara he was the father of Valeria’s child and that she wished payment to help raise the infant. Barbara said she rejected Valeria’s claims, despite the latter’s threat to make trouble for Floyd by taking him to court if no formal settlement could be worked out.

The only other defense witness was the defendant himself. He admitted his acquaintance with Valeria Staples, but only for the period from September to December 1989. He could not recall the number of times he had intercourse with her in those months, although he believed them to be few, Likewise, he was uncertain of the date of his final visit but was certain that it had been no later than December 15 and was equally positive that he had no intercourse with her in December. He said he did not hear from her again until May 1970, when she telephoned to inform him of her pregnancy, and did not see her again until January 1971 when she confronted him and his wife.

The defendant, in support of his contention that the paternity finding was against the weight of the evidence, alludes to several claimed weaknesses in the State’s case: first, there was no medical evidence that the child was delivered three weeks past the normal term of pregnancy; second, the long delay in informing him of the pregnancy and in bringing this action; third, the plaintiff's failure, for a considerable period of time, to name the father to anyone except two close members of her family, and, fourth, her failure to name him as the father on the birth and baptismal certificates.

In a paternity case, the burden of persuasion rests on the plaintiff to prove the charge by a preponderance of the evidence. Where the case is tried without a jury it is for the trial judge to determine the credibility of the witnesses and the weight of testimony, and if the defendant’s testimony contradicts that of the plaintiff, the judge may choose to believe one party and not the other. (In re Blackwell v. Welti (1964), 46 Ill.App.2d 453, 197 N.E.2d 126.) An appellate court will reverse a trial court on the question of evidence only if it is clearly convinced that the result is contrary to the manifest weight of the evidence. People ex rel. Dalman v. O’Malley (1963), 43 Ill.App.2d 95, 192 N.E.2d 589.

After reviewing the record, we cannot say that we are clearly convinced a mistaken conclusion was reached by the trial court. Although the only testimony about the lateness of the baby’s arrival was from the mother, the hearsay testimony went unchallenged by counsel for the defendant. Moreover, no effort was made to impeach her assertion, despite the availability of hospital records and the delivering physician. Her delay in telling the defendant of her condition was plausibly explained by her desire to be certain she was pregnant before contacting him. Her failure to spread his name about, and the different names entered on the birth and baptismal certificates, were understandably related to her embarrassment and the concomitant reluctance to reveal more to anyone than she felt to be absolutely necessary.

The principal clash in the parties’ testimony relates to the dates of their intimacy. Prude claimed that he last had intercourse with the plaintiff in November 1969, while she stated the final date was in the first week of February 1970. Since Prude did admit to the relationship, quarreling only as to dates, and since the plaintiff produced a corroborating witness who saw her with him in late January 1970, the trial judge had an additional basis when assessing credibility to believe the plaintiff and disbelieve the defendant.

During discovery proceedings antecedent to the trial, Prude was required to answer interrogatories over his objection that to do so would violate his constitutional privilege against self-incrimination. The queries to which he objected related to the time span and frequency of his sexual intimacies with the plaintiff. His answers admitted having intercourse with her from September through November 1969. He complains that his answers could furnish a link in the chain of evidence necessary to prosecute him criminally for fornication or public indecency. Ill. Rev. Stat. 1969, ch. 38, pars. 11—8 and 11—9.

The defendant’s complaint is academic. The question is not whether his fifth amendment right was violated, but whether the violation—if there was one—deprived him, or contributed to deprive him, of a fair trial. Neither the interrogatories nor the answers affected the outcome of his trial; no attempt was made to introduce them into evidence and they were not used for impeachment purposes. Moreover, the incriminating revelations of which he complains were freely related by him at the trial. His failure to assert the privilege against seff-incrimination when he was questoned, waived the privilege. People v. Rimicci (1968), 97 Ill.App.2d 470, 240 N.E.2d 195.

The judgment is affirmed.

Affirmed.

McNAMARA, P. J., and McGLOON, J., concur.