author: JUSTICE McLAREN PRESIDING JUSTICE REINHARD,

text:
    LEONARD STONE, Plaintiff-Appellee, v. THE DEPARTMENT OF EMPLOYMENT SECURITY BOARD OF REVIEW et al., Defendants-Appellants.
    Second District
    No. 2—90—0685
    Opinion filed May 17, 1991.

      REINHARD, P.J., dissenting.
    Roland W. Burris, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Karen Michels Caille and Jan E. Hughes, Assistant Attorneys General, all of Chicago, of counsel), for appellants.

      Vicki Lafer Abrahamson & Associates and Alan P. Sobel, both of Chicago (Vicki L. Abrahamson, of counsel), for appellee.
   JUSTICE McLAREN

delivered the opinion of the court:

Defendant, Department of Employment Security Board of Review (Board), appeals from the trial court’s reversal of the Board’s determination on administrative review. We affirm in part, reverse in part, and remand.

Plaintiff, Leonard Stone, was discharged from his job with defendant, National Interchem Corporation (Interchem), in April 1987. Stone then applied for unemployment insurance benefits from the Department of Employment Security (Department). Interchem contested the claim. A Department claims adjudicator found Stone ineligible for benefits because Stone’s excessive tardiness while working for Interchem constituted misconduct. The adjudicator affirmed his previous decision upon reconsideration.

Stone sought review of the adjudicator’s decision by a Department referee. On the morning of the hearing, Interchem requested a continuance because its representative and witness were unavailable. The continuance was denied, and the only testimony on behalf of Interchem was given by the secretary who called to request the continuance. The referee reversed the adjudicator’s determination and subsequently denied Interchem’s request for a rehearing. Interchem appealed to the Board, which remanded the matter to the referee for further hearings; the proceedings of the first hearing before the referee were to be incorporated into the record before the referee.

At the hearing on remand, the referee stated that he did not have a transcript of the prior hearing; therefore, the hearing was conducted de novo. The referee affirmed the determination of the adjudicator, which found that Stone was discharged for misconduct and ineligible for benefits. Stone appealed to the Board, which affirmed the referee.

Stone next filed a complaint for administrative review. The circuit court reversed the Board’s determination, finding it against the manifest weight of the evidence. The court also found that the Board’s decision to remand was made beyond the time permitted by statute and that the referee’s de novo hearing was a denial of Stone’s right to due process. This appeal followed.

The Board first contends that the trial court lacked subject-matter jurisdiction over Stone’s complaint for administrative review. The initial complaint in administrative review named Interchem and the Board as defendants. The Board filed a motion to dismiss for lack of subject-matter jurisdiction, contending that defendant Sally Jackson, Director of the Department, should have been named as a defendant. Stone filed a motion to amend his complaint to include Jackson, which the court subsequently granted.

The Board’s contention is based upon its reading of section 1100 of “An Act in relation to a system of unemployment insurance” (the Act) (Ill. Rev. Stat. 1989, ch. 48, par. 520). This section applies the Administrative Review Law (Ill. Rev. Stat. 1989, ch. 110, par. 3—101 et seq.) to judicial review of Board decisions and provides in part:

“The Director shall be deemed to be a party to any judicial action involving any such decision and shall be represented by the Attorney General.” (Ill. Rev. Stat. 1989, ch. 48, par. 520.)

The Board then looks to section 3 — 107 of the Administrative Review Law, which states:

“In any action to review any final decision of an administrative agency, the administrative agency and all persons, other than the plaintiff, who were parties of record to the proceedings before the administrative agency shall be made defendants.” (Ill. Rev. Stat. 1989, ch. 110, par. 3—107.)

The Board argues that, since Jackson, the Director, is deemed to be a party to the proceedings, she must be made a defendant in the administrative review. According to the Board, failure to file a complaint designating Jackson as a defendant within 35 days of the Board’s decision, pursuant to section 3 — 103 of the Administrative Review Law (Ill. Rev. Stat. 1989, ch. 110, par. 3—103), deprived the trial court of jurisdiction over the case. See Lockett v. Chicago Police Board (1990), 133 Ill. 2d 349.

This argument lacks merit. Section 3 — 107 requires designation as defendant of “all persons *** who were parties of record to the proceedings before the administrative agency.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 110, par. 3—107.) Jackson was not a party of record in the hearing before the Board. Although section 1100 states that the Director shall be deemed a party “to any judicial action” involving a Board decision (emphasis added) (Ill. Rev. Stat. 1989, ch. 48, par. 520), nowhere does the Act deem the Director to be a party to the Board action itself, an administrative action. Since only parties of record to the administrative action need be named in the'complaint for administrative review, and Director Jackson was not a party of record to those proceedings, Stone was not required to name Jackson in his complaint. Therefore, the circuit court had jurisdiction over the cause.

The Board next contends that the trial court erred in finding that the Board lost jurisdiction before it remanded the cause to the referee. We agree.

Interchem sought a rehearing of the referee’s reversal of the claim adjudicator’s decision. This request was denied on September 18, 1987. The Board reversed the referee’s decision and remanded the cause on October 14, 1988. When this cause eventually arrived in the circuit court, the court found that the Board’s decision reversing and remanding the referee’s decision was untimely filed by the Board and therefore null and void.

Section 803 of the Act provides in part:

“The Board of Review shall make a final determination on the appeal within 120 days of the date of the filing of the appeal and shall notify the parties of its final determination or finding, or both, within the same 120 day period. The period for making a final determination may be extended by the Board of Review to no more than 30 additional days upon written request of either party, for good cause shown.
At any time after the expiration of the aforesaid 120 day period, or the expiration of any extension thereof, and prior to the date the Board of Review makes a final determination on the appeal, the party claiming to be aggrieved by the decision of the Referee may apply in writing by certified mail, return receipt requested, to the Board of Review for a Notice of Right to Sue. The Board of Review shall issue, within 14 days of the date that the application was mailed to it, a Notice of Right to Sue to all parties entitled to notice of the Referee’s decision, unless, within that time, the Board has issued its final decision. The Notice of Right to Sue shall notify the parties that the findings and decision of the Referee shall be the final administrative decision on the appeal, and it shall further notify any party claiming to be aggrieved thereby that he may seek judicial review of the final decision of the Referee under the provisions of the Administrative Review Law. *** Any decision issued by the Board after the aforesaid 14 day period shall be null and void. If the Board fails to either issue its decision or issue a Notice of Right to Sue within the prescribed 14 day period, then the findings and decision of the Referee shall, by operation of law, become the final administrative decision on the appeal. *** If no party applies for a Notice of Right to Sue, the decision of the Board of Review, issued at any time, shall be the final decision on the appeal.” Ill. Rev. Stat. 1989, ch. 48, par. 473.

The trial court found that the .Board’s decision, rendered almost 13 months after the notice of appeal to the Board was filed, was not filed pursuant to section 803 of the Act. The Board here argues that the 120-day period for filing a decision is merely directory, not mandatory.

We conclude that the Board’s decision was issued in compliance with the Act. Determinative of this issue is the last sentence of section 803, which states:

“If no party applies for a notice of right to sue, the decision of the Board of Review, issued at any time, shall be the final decision on the appeal.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 48, par. 473.)

In this case, neither party applied for a notice of right to sue. Therefore, the Board’s decision, even though it was issued nine months late, is the final decision on appeal.

The parties spend considerable time and effort debating whether the time provisions of section 803 are mandatory or directory. Section 803 is mandatory if it is called into effect by the parties. Unless a notice of right to sue is requested, the time constraints contained in section 803 are not called into play. This situation is analogous to that covered by the speedy trial provisions of section 103 — -5(b) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 103—5(b)). Under those provisions, a person on bail or recognizance is entitled to trial within 160 days of his demand for trial; without such a demand, such a person can be tried beyond 160 days. (See People v. Freeland (1981), 103 Ill. App. 3d 94.) Similarly, the time limits in the case before us must be invoked by the claimed aggrieved party before they become operational. Once invoked, the procedures and limits become mandatory. As the statutory procedures were not called into effect here, the Board’s decision was properly issued.

An opposite reading of section 803 would render much of that section superfluous. If, as the court found, the Board’s failure to issue its decision within 120 days renders such a decision beyond statutory bounds, the procedures for seeking notice of right to sue and the provisions subsequent to such an action become meaningless. Courts will not construe a statute in such a way as to make one of its provisions superfluous. (Board of Trustees of Community College District No. 508 v. Human Rights Comm’n (1981), 88 Ill. 2d 22, 28.) For this reason, and the others stated above, we conclude that the trial court erred in finding the Board’s decision untimely issued.

The Board next contends that the court erred in finding that Stone’s right to due process was violated when the referee, on remand, held a de novo review. The Board remanded the cause to the referee:

“[W]ith instructions to schedule a hearing for the purpose of taking the testimony of the parties and. to obtain such evidence as may be available. Any proceedings had at the first hearing shall be incorporated in and made a part of the record before the Referee and the Referee shall issue a decision based on all the evidence, including that previously presented.”

At the hearing on remand, the referee notified the parties that he did not have a copy of the transcript from the prior hearing. Stone, appearing by telephone, was required to testify again in detail. A witness who testified at the earlier hearing was not present at the remand hearing. After taking the new evidence, the referee reversed his prior decision and found that Stone was not eligible for benefits. The Board affirmed the referee’s decision. The court reversed, finding that Stone’s due process rights had been denied.

The Board first argues that Stone waived his argument regarding the de novo hearing by failing to object to the nature of the hearing at the time of the hearing. A party is obligated to raise constitutional questions at the earliest fair opportunity. (Stark v. Pollution Control Board (1988), 177 Ill. App. 3d 293, 296.) While Stone did not object at the hearing, neither was Stone told that the testimony from the prior hearing would not be considered by the referee. Stone was only told that, at the time of the hearing, the referee had not received a transcript of the earlier hearing. The referee only acted beyond his authority when he issued his decision without considering the testimony from the prior hearing. Stone raised the issue immediately before the Board and, later, the trial court. We conclude that Stone properly preserved the issue for review.

The Board found that, since the record of the first hearing before the referee was nonexistent, the referee acted properly in conducting a de novo hearing. The Board also found that Stone was given “a reasonable opportunity for a full, fair, and complete hearing and that his in-person presence was not required to determine credibility in the matter.” On appeal, the Board argues that the de novo hearing actually protected, not violated, Stone’s right to due process. We disagree.

Stone received no notice that the hearing was to be held de novo before the hearing began. He did not know that he would be called to testify again and therefore appeared by telephone. The opportunity to be heard is a fundamental concept of a fair hearing. (Ma honie v. Edgar (1985), 131 Ill. App. 3d 175, 179.) While Stone was allowed to testify, he was not given the opportunity to testify in person. The taking of testimony via the telephone in Department hearings is neither specifically allowed nor disallowed in the Administrative Code. (See 56 Ill. Adm. Code ch. 1, par. 100.100 (1985).) However, we need not decide today whether the taking of testimony in this manner is permissible in all circumstances. We need only say that where, as here, the outcome of a hearing is so dependent on the credibility of the witnesses, an aggrieved party must be allowed to testify in person if he so chooses. By holding the de novo hearing when he did without prior notice, the referee denied Stone the right to choose his method of giving testimony, and thus, a fair hearing.

Additionally, the testimony of Marge Busse was omitted because of the de novo hearing. Busse, a secretary at Interchem, testified at the original hearing before the referee. Busse was not in attendance at the second hearing because her prior testimony was to have been included in the record. Since no transcript of the prior hearing was provided, Busse’s testimony was not considered by the referee. Part of the right to be heard is the ability to present witnesses on one’s behalf. Stone considered Busse’s testimony beneficial to his position. By conducting the de novo hearing in Busse’s absence and reaching his decision without the transcript, the referee failed to consider all the testimony in support of Stone’s position. Therefore, Stone’s right to a fair hearing was denied. A new hearing before the referee is required to right this injustice.

Because of our disposition of the above issue, we need not consider the Board’s final contention.

For these reasons, the judgment of the circuit court of Du Page County is affirmed in part and reversed in part, and the cause is remanded for a new hearing before a Department referee.

Affirmed in part; reversed in part and remanded.

BOWMAN, J., concurs.

PRESIDING JUSTICE REINHARD,

dissenting:

I respectfully dissent from the majority’s opinion because I believe the circuit court lacked jurisdiction over plaintiff’s complaint for administrative review by virtue of plaintiff's failure to name the Director of the Department of Employment Security as a party to the judicial proceeding. First, by focusing only on section 3 — 107 of the Administrative Review Law (Ill. Rev. Stat. 1989, ch. 110, par. 3—107) as to who shall be named a defendant, the majority’s interpretation effectively renders as meaningless the language of section 1100 of “An Act in relation to a system of unemployment insurance” which states, “The director shall be deemed to be a party to any judicial action involving such decision and shall be represented by the Attorney General.” (Ill. Rev. Stat. 1989, ch. 48, par. 520.) Such an interpretation is contrary to the rule of statutory construction that courts will not construe a statute in such a way as to make a provision meaningless. Niven v. Siqueira (1985), 109 Ill. 2d 357, 365.

Secondly, in Strang v. Department of Transportation (1990), 206 Ill. App. 3d 368, 372, the plaintiff therein conceded that the Director of the Department of Employment Security, among others, was a necessary party. The appellate court did not disagree with this concession and found that, absent contrary instructions from the supreme court, Lockett v. Chicago Police Board (1990), 133 Ill. 2d 349, was to be applied retroactively and that the circuit court therefore lacked jurisdiction to review the administrative agency’s decision. (Strang, 206 Ill. App. 3d at 373.) In this case, because Lockett is to be applied retroactively and plaintiff’s complaint failed to name the Director of the Department of Employment Security, a necessary party to the circuit court proceedings, the circuit court lacked jurisdiction over the complaint for administrative review. Accordingly, I would reverse the judgment of the circuit court on this basis and reinstate the decision of the Board of Review.

I express no opinion on the propriety of the remainder of the majority’s opinion.


source: Caselaw Access Project

author: PRESIDING JUSTICE REINHARD

license: Public Domain

text:
    GLENVIEW STATE BANK, as Trustee, et al., Plaintiffs-Appellants, v. THE VILLAGE OF DEERFIELD, Defendant-Appellee.
    Second District
    No. 2—90—0756
    Opinion filed May 16, 1991.

      Brian M. Fornek, of Schain, Firsel & Burney, Ltd., of Chicago (Robert C. Kenny, of counsel), for appellants.

      Siegel & Warnock, of Chicago (Jack M. Siegel, of counsel), for appellee.
   PRESIDING JUSTICE REINHARD

delivered the opinion of the court:

In March 1988, plaintiffs, Glenview State Bank, as trustee, and Howard Savings and Loan Association, filed an application with defendant, the Village of Deerfield (Village), to rezone the subject property and allow a special use and variation. On February 23, 1989, the Village plan commission recommended denial of plaintiffs’ application. On April 3, 1989, the Village board of trustees voted to accept the recommendation of denial.

On May 24, 1989, plaintiffs filed a complaint for declaratory judgment and injunctive relief seeking to have defendant’s zoning ordinance declared unreasonable. Plaintiffs also sought to have the court declare that the proposed use was reasonable. Following a bench trial, the trial court entered judgment in favor of defendant and found that the R-l classification (residential use) was reasonable and that the proposed use was unreasonable. Plaintiffs appealed following the denial of their motion to reconsider.

The subject property is located in an area commonly known as Hovland in Deerfield. Hovland is a single-family residential area which is approximately four blocks long by four blocks wide. The streets bordering Hovland are Hackberry on the north, Willow on the east, Lake-Cook Road on the south and Wilmont Road on the west. Within this area, there has never been a nonresidential use except for a church, a school and a park. The subject property is located on the southwest corner of this area at the intersection of Lake-Cook Road and Wilmont Road. At this intersection, Lake-Cook Road has seven lanes of traffic, four westbound and three eastbound, and Wilmont Road has four lanes. This area is known as the Lake-Cook corridor. The south side of Lake-Cook Road is zoned for commercial use, and there are several commercial buildings on that side of Lake-Cook Road including, from west to east, the Arbor Lake Center, the Baxter Corporation, the Lake-Cook Road Office Center and the Deerfield Business Center. The west side of Wilmont Road also has commercial buildings including the Tollway North, Walgreen and United. Conveyor buildings. Several of these buildings are more than one story tall and can be seen from the residences in the Hovland community. Approximately 30,000 to 40,000 cars per day pass the location on Lake-Cook Road and 10,000 to 20,000 on Wilmont Road.

The subject property is approximately four acres and zoned R-l for single-family residential use. For areas zoned R-l, the Deerfield Zoning Ordinance, which was admitted into evidence, requires a minimum lot size of 20,000 square feet, a maximum structure height of 35 feet and a minimum lot width of 100 feet.

The proposed use is a combination of a family restaurant, a savings and loan with a drive-up facility and an office building. The restaurant will be about 7,500 square feet and 14.5 feet high. The other building will be three stories, which will be 35 feet high. The proposed use includes four drive-up lanes under a canopy. The three-story building is set 121 feet from the easternmost property line. The measurement from the rear wall of the restaurant to the rear property line is 250 feet. One of the two buildings is 270 feet from a home, and the other building is 84 feet from a residence. A berm of about two feet will extend down the property line and will be planted with evergreens which would be approximately 10 feet tall. The proposed use will also include a loading berth and trash containers. The entrance to the site would be on the east end of the subject property. The entrance is designed for “right-tum-in-right-turn-out” and no left turns from 4 p.m. to 6 p.m. Although the proposed use provides for only 287 parking spaces, the Village ordinance under this plan requires 296 spaces.

John Pródromos testified that when he purchased the property, he was aware that the zoning classification was residential. He also stated that, when he purchased the property in 1985, there were two houses on the land. One house was moved to a neighboring lot and the other was razed. The subject property is now vacant land.

Joseph Abel, an expert in the field of land use and planning, testified for plaintiffs. Abel opined that the subject property is not appropriate for single-family development, especially considering the traffic at the Lake-Cook/Wilmont intersection. He based that opinion in part on the fact that over the last 10 years only 2.5% of the total property fronting Lake-Cook Road from Saunders to Waukegan Roads was developed for single-family use, while approximately 25% of the frontage had been developed for commercial or office use. Abel stated that the trend of development in the corridor and along Wilmont Road is for commercial and office use. Abel’s opinion was that the most appropriate use for the subject property is not R-l single-family development and that the R-l zoning classification was totally inappropriate. After describing the proposed use for the subject property, Abel opined that the proposed use is totally compatible with the uses surrounding the subject property and will not have any adverse effect on the surrounding residential area to the north and to the east. Abel also stated that the proposed use would be an excellent transition from the commercial area to the residential area and would comply with the highest and best use of the subject property.

On cross-examination, Abel admitted that, when he worked as a consultant for defendant, he prepared a comprehensive plan which designated the subject property for single-family development. Abel agreed that the area has maintained itself as a residential area and that the trend in the area would be “in-fill” residential development, specifically single-family development. Abel also agreed that, under the proposed use, people could be coming in as early as 6 a.m. and as late as 10 p.m. and parking within 10 feet of the neighbor’s backyard.

Terrence O’Brien, who was recognized as an expert in the field of real estate appraisal and evaluation, testified for plaintiffs. After describing the proposed use and defining highest and best use, O’Brien opined that the highest and best use of the subject property would be a business or commercial development. In O’Brien’s opinion, the value of the subject property with the proposed use is $1,400,000. Under its existing R-l zoning, the value would be $360,000, and even under the Planned Residential Development (Planned Residential Development) under R-l zoning, the value would only be $700,000. Further, O’Brien’s opinion was that there definitely was a need for restaurants and office space in the area. After describing a study which he conducted showing that an office building within 50 feet of residences had no effect on the residences’ level of appreciation, O’Brien stated that the proposed development is harmonious and compatible with other land uses in the area. On cross-examination, O’Brien admitted that the Budah office building only three-fourths of a mile away from the subject property is unoccupied. O’Brien also admitted that the trend in the area is for single-family development. O’Brien also thought that there was a reasonable probability of rezoning the area for more intense single-family use.

Joseph Zgonina, who was recognized as an expert in the field of civil and traffic engineering, characterized Wilmont Road as a “neighborhood-type collector arterial” because it is a short, narrow road with a posted speed limit of 30 miles per hour; however, it does carry a large volume of traffic. Zgonina characterized Lake-Cook Road as a “high-type regional arterial” road because it is a long, multilane road running from Lake Michigan to Kane County and carrying a large volume of traffic with a posted speed limit of 45 miles per hour. The peak periods of traffic are 7:30 a.m. to 8:30 a.m. and 4:30 p.m. to 4:45 p.m. As to the proposed use, Zgonina believed that it would cause 80 inbound movements into and 35 outbound movements out of the subject property during the critical morning-peak traffic. During the critical afternoon-peak traffic, the proposed use would cause 150 inbound movements and 185 outbound movements. Zgonina stated that the projected volume of traffic from the proposed use would not significantly increase existing traffic volume or substantially impact on Lake-Cook Road or Wilmont Road traffic. Zgonina opined that the proposed use would cause no safety problems because there would be two independent-lane uses and no cross-over traffic and that traffic access to and from the subject property with the proposed use would be safe, efficient and convenient. Zgonina also testified that the internal circulation of traffic in the proposed use was adequate. Finally, based on a license-plate study, Zgonina was of the opinion that drivers would not use the residential streets in Hovland as a short cut. On cross-examination, Zgonina admitted that he did not calculate the number of trips that would be generated by the restaurant, office building and savings and loan, nor did he perform any potential employee or customer interviews to determine from where they would be coming.

Samuel T. Gentles was recognized as an expert in the field of commercial real estate. Gentles testified that the vacancy rate of the existing buildings in Deerfield is 6.7%. Gentles opined that there is a substantial demand for office buildings in Deerfield which could accommodate tenants requiring 1,000 to 1,500 square feet or less and that the proposed use can fill that need. Gentles also believed that the newer office buildings in the Deerfield area would not meet the need for smaller, about 1,000 square feet, office space. Gentles also opined that there were not enough restaurants in Deerfield based on the statistics that the ratio of restaurants to persons in the greater Chicago area is 1:896, while the ratio in Deerfield is only 1:1,600. On cross-examination, Gentles agreed that several office buildings in the Deer-field area had 10% or higher vacancy rates and contained vacant office space smaller than 1,000 square feet. Further, Gentles’ count of restaurants did not include the “eating facilities” of hotels or of 9 or 10 office buildings.

Leslie Pollock, a land planner, testified for defendant. Pollock testified that the subject property, as zoned R-l, could be divided into 13 lots with a special use. Pollock believed that Lake-Cook Road served an appropriate function in separating the different land uses and acting as a boundary line. Pollock also believed that Wilmont Road is an appropriate dividing line for residential and commercial property. In his opinion, the appropriate land use of the subject property is single-family residential, detached use. Pollock stated that the busy Lake-Cook and Wilmont Roads would not impact on the potential to develop the subject property for residential uses. As to the proposed use, Pollock opined that the impact upon adjacent uses would be unacceptable. Pollock also testified that the proposed use could be used as an entry wedge and modification of the comprehensive plan. On cross-examination, Pollock admitted that the area includes a sewage treatment plant and a nursing home. Also, the comprehensive plan does not meet the zoning ordinance’s requirements for cul-de-sacs.

Francis Lorenz, a recognized expert in the field of real estate appraisal, testified that the subject property was eligible for a special use as a Planned Residential Development which would permit 10,800-square-foot lots, thereby allowing for 12 or 13 lots to be placed on the property. Lorenz opined that the highest and best use of the subject property would be the development of single-family residences. However, he would like to see the special use granted to allow for the 10,800-square-foot lots. Lorenz valued the subject property with the special use at $1.1 million and at $700,000 as zoned R-l without the special use. Lorenz believed that Wilmont and Lake-Cook Roads were demarcations and opined that the intrusion of a commercial use would have a serious deleterious effect on the value of neighboring residences and on the lifestyles of the people who live in those residences. Lorenz also stated that the proposed use would cause the adjacent residential property to suffer a 10% decrease in value. Lorenz opined that there is a strong demand for single-family housing and that, although there was a general demand for additional office space, the demand was not so great as to require the construction of office space on the subject property. Further, Lorenz stated that the demand for a restaurant was not so great as to require that one be built on this site. On cross-examination, Lorenz admitted that the information he received from the Metropolitan Chicago Office Guide was inaccurate because it did not include single-user office buildings. Although Lorenz agreed that one home which abuts the subject property is vacant, he believed it was vacant because it is over priced. On redirect examination, Lorenz said he believed that a special use for a Planned Residential Development on the subject property would be granted by defendant.

Gerald Lindgren, who was recognized as an expert in the field of traffic engineering, was of the opinion that the location of the driveways on the proposed use will have a significantly adverse effect on traffic movements at the intersection and on both roads. Lindgren stated that it would be virtually impossible to enforce the “no-left-turn” restriction. Lindgren also testified that the proposed use would generate the most traffic during the secondary peak-traffic period. Lindgren stated that the proposed plan does not meet proper traffic engineering standards, that people will take short cuts through residential areas, and that the significant problems in entering and exiting the proposed use would cause traffic hazards. On cross-examination, Lindgren admitted that the amount of traffic that would be generated by the occupiers of office space in the proposed use is not significant compared to the traffic produced by the offices on the south side of Lake-Cook Road and the west side of Wilmont Road. Lindgren also admitted that he did not conduct a study to determine if people would use short cuts. On redirect examination, Lindgren stated that the preference is not to have driveways in turning lanes and that the nature and function of the traffic movements are more important than the volume of traffic.

Barbara Houpt, director of community development for defendant, stated that the last revision of the comprehensive plan was in April 1985. All the comprehensive plans since the 1950s have provided that the subject area should be zoned for single-family use. Houpt stated that the area was zoned R-l with minimum lot sizes of 20,000 square feet, but special provisions allow for lot sizes of 10,800 square feet. If an application for such a special use were made, it would probably be granted. Houpt also noted that there had been other suits in the past to change the zoning on the subject property. Houpt acknowledged that she had received several inquiries about developing the subject property for single-family residences. Houpt testified that, even if the subject property were zoned C-2 for commercial use, a special use would be required to operate the restaurant because the proposed use does not meet defendant’s parking ordinances. Houpt was of the opinion that the subject property should be used for single-family purposes and that the development on the south side of Lake-Cook Road has very little, if any, impact on the suitability of the subject property for single-family use because those structures are a substantial distance away from the property. Finally, Houpt stated that defendant has never granted any use other than some type of residential use in the Hovland subdivision. On cross-examination, Houpt agreed that prior to 1978 the comprehensive plan indicated that the land south of Lake-Cook Road was for single-family use.

Several homeowners whose homes are near or abut the subject property testified that their homes ranged in price from $125,000 to $364,000 at the time they bought their homes, and currently the homes are valued between $300,000 and $600,000. They also testified that they investigated the zoning in the area before they purchased and would not have purchased their homes if they knew the proposed use would be allowed. They also testified that they believed their homes would depreciate by approximately 10%.

In rebuttal, Joseph Abel stated that if 13 lots were placed on the subject property, seven of those lots would not meet the minimum requirement of 10,800 square feet, and two lots would not meet the width requirement. He also testified that the cul-de-sac serving the 13 lots would be 640 feet and the maximum length allowed by the Village ordinance is 300 feet. Also, the diameter of the cul-de-sac would be too small. Abel then testified that if 12 lots were placed on the subject property, five would not meet the footage requirement and two would not meet the width requirement. Moreover, the cul-de-sac would be 578 feet long. On cross-examination, Abel admitted that defendant has approved cul-de-sacs greater than 300 feet and that it is possible to have a plan which conforms to the zoning requirements.

After noting that there was no doubt that the subject property would be worth more if zoned for commercial use rather than R-l residential or if zoned pursuant to a Planned Residential Development, the trial judge stated that the proposed use would have a much more substantial impact than the offices currently across Wilmont and Lake-Cook Roads. The trial judge also stated that any hardship argument is lessened because Pródromos knew of the zoning and prior attempts to change it. The trial judge then recited eight factors and determined that plaintiff had failed to overcome the presumption of validity by clear and convincing evidence and that there appeared to be a reasonable difference of opinion which could not be resolved in favor of plaintiffs. The trial judge also determined that the proposed use was not reasonable because the proposed plan allows for the property to be used for long hours during the entire week. Finally, the trial judge noted that zoning must begin and end somewhere and that Lake-Cook Road and Wilmont Roads are obvious and real lines of demarcation.

Plaintiffs raise three issues on appeal: (1) whether the trial court improperly relied on the possible rezoning of the subject property in finding that the current zoning was reasonable; (2) whether the trial court’s decision was against the manifest weight of the evidence because the trial court improperly applied the appropriate factors utilized in determining the validity of a zoning ordinance; and (3) whether the proposed use for the subject property is reasonable.

Plaintiffs first contend that the trial court’s opinion and defendant’s position below both tacitly acknowledged that the existing R-l residential zoning is unreasonable. Plaintiffs assert that throughout the trial judge’s oral opinion, which was explicitly made part of the written order, he referred to the possibility of a Planned Residential Development use for the subject property. Further, plaintiffs note that one of defendant’s experts, Francis Lorenz, testified that the highest and best use of the subject property would be a residential development with 10,800-square-foot lots, and Leslie Pollock, another of defendant’s experts, testified that a residential development with 10,800-square-foot lots would be appropriate. Plaintiffs cite the case of Stalzer v. Village of Matteson (1973), 14 Ill. App. 3d 891, 303 N.E.2d 489, for the proposition that the trial court must look to the existing zoning of the subject property and not an alternative zoning classification. The Stalzer court stated that, once the invalidity of the existing ordinance is established, the plaintiff is not obliged to prove the invalidity or unreasonableness of an alternative zoning classification. Stalzer, 14 Ill. App. 3d at 903, 303 N.E.2d at 498.

Defendant first responds that the trial court can consider alternative plans when determining the reasonableness of a proposed use, even if the alternative plans were not permitted by the underlying zoning classification, and cites Pillman v. Village of Northbrook (1978), 65 Ill. App. 3d 40, 382 N.E.2d 399, and American National Bank & Trust Co. v. City of Chicago (1964), 30 Ill. 2d 251, 195 N.E.2d 627. However, alternative plans for a subdivision may be a factor only in determining the question of whether a plaintiff’s proposed use is the best possible use for the land (Gunderson v. Village of Hinsdale (1987), 156 Ill. App. 3d 92, 102, 508 N.E.2d 1212); the plans may not be used for determining the validity of the existing zoning.

Defendant also responds that the R-l zoning classification specifically contains provisions for a Planned Residential Development on the subject property. The Deerfield ordinance provides that a Planned Residential Development is a permitted special use for the Hovland community, the area bounded by Wilmont, Hackberry, Willow and Lake-Cook Roads. Under the R-l classification, the ordinance provides the following:

“4.1 — 3 Special Uses
The following uses are permitted in the R-l Single-Family Residence District when authorized in accordance with the procedures for Special Uses as set forth in Article 13:
* * *
6. Planned Residential Developments, in that area bounded by Lake-Cook Road, Wilmont Road, Hackberry Road and Willow Avenue as regulated by Article 12.3, Planned Residential Developments.” Deerfield, Ill., Zoning Ordinance, ch. 4, par. 4.1-3 (1978).

Therefore, contrary to plaintiffs’ assertions, the testimony regarding the Planned Residential Development and the trial judge’s reliance on a possible Planned Residential Development were not based on the possibility that the subject property would be rezoned. If a Planned Residential Development were approved, the zoning of the subject property would remain R-l and no rezoning would occur. Thus, the trial court did not err by considering the possibility of a Planned Residential Development because a Planned Residential Development was explicitly provided for under the existing zoning which was being challenged. Further, the probability that the Planned Residential Development would require the consent of defendant and some variations does not render the consideration of the Planned Residential Development inappropriate when there was substantial testimony that defendant would consent to the Planned Residential Development as special use and had allowed variations in the past. See Gunderson, 156 Ill. App. 3d at 102, 508 N.E.2d at 1219.

The next issue plaintiffs raise is whether the trial court’s decision that, the existing R-l zoning is reasonable was against the manifest weight of the evidence.

Initially, plaintiffs contend that defendant and the trial judge improperly focused on the entire Hovland area rather than the subject property. It appears that plaintiffs are complaining that the trial judge placed too much emphasis on the character of the Hovland area, the area north and east of the subject property. However, plaintiffs themselves attempt to emphasize the area to the west and south as showing the character of the subject property. In determining whether a particular zoning classification is reasonable, all the facts must be considered. (La Salle National Bank v. County of Cook (1957), 12 Ill. 2d 40, 46-47, 145 N.E.2d 65.) Thus, the trial judge must look not only to the commercial area which plaintiffs emphasize but also to the Hovland area. See Palatine National Bank v. Village of Barrington (1988), 177 Ill. App. 3d 839, 852, 532 N.E.2d 955.

Individuals challenging an ordinance must first establish the invalidity of the existing zoning ordinance and then show that the proposed use for the subject property is reasonable. (Schultz v. Village of Lisle (1972), 53 Ill. 2d 39, 41, 289 N.E.2d 614; Gunderson, 156 Ill. App. 3d at 101, 508 N.E.2d at 1219.) In La Salle National Bank v. County of Cook (1957), 12 Ill. 2d 40, 145 N.E.2d 65, our supreme court listed six factors which must be considered in determining if an ordinance is reasonable. These are the following: (1) the existing uses and zoning of nearby property; (2) the extent to which property values are diminished by the particular zoning restrictions; (3) the extent to which the destruction of the value of plaintiff’s property promotes the health, safety, morals, or general welfare of the public; (4) the relative gain to the public compared to hardship imposed upon the individual property owner; (5) the suitability of the subject property for the zoned purposes; and (6) the length of time the property has been vacant as zoned, considered in the context of land development in the vicinity. (La Salle National Bank, 12 Ill. 2d at 46-47, 145 N.E.2d at 69; see also Cosmopolitan National Bank v. County of Cook (1984), 103 Ill. 2d 302, 311, 469 N.E.2d 183.) Although the supreme court in Sinclair Pipe Line Co. v. Village of Richton Park (1960), 19 Ill. 2d 370, 378, 167 N.E.2d 406, added two more factors to be considered-community need for the proposed use and the care with which the community had undertaken to plan its land use development — plaintiffs have not addressed these factors.

A zoning ordinance, as a legislative judgment, is presumptively valid. (La Salle National Bank, 12 Ill. 2d at 46, 145 N.E.2d at 69.) When there is room for a legitimate difference of opinion concerning the reasonableness of an ordinance or when the question of reasonableness is fairly debatable, the courts will not interfere with the legislative judgment. (Cech Builders, Inc. v. Village of Westmont (1983), 118 Ill. App. 3d 828, 830, 455 N.E.2d 817; see also La Salle National Bank v. City of Evanston (1974), 57 Ill. 2d 415, 428, 312 N.E.2d 625.) A zoning ordinance may be valid in general, but invalid as to a particular piece of property (Petropoulos v. City of Chicago (1955), 5 Ill. 2d 270, 125 N.E.2d 522), as is contended here. The party challenging the zoning bears the burden of proving by clear and convincing evidence that the application of the ordinance to the property is unreasonable and arbitrary and bears no substantial relation to public health, safety, morals or welfare. (Cosmopolitan National Bank, 103 Ill. 2d at 310, 469 N.E.2d at 187.) A reviewing court cannot overturn a trial court’s findings of fact unless the findings are against the manifest weight of the evidence. (Cosmopolitan National Bank, 103 Ill. 2d at 318, 469 N.E.2d at 191.) The trier of fact is in a better position to determine the credibility to be accorded witnesses and their opinions. (Illinois National Bank & Trust Co. v. County of Winnebago (1960), 19 Ill. 2d 487, 495, 167 N.E.2d 401.) An appellate court should not reverse a trial court simply because the appellate court might have reached a different conclusion based on conflicting evidence presented at trial. Bank of Elk Grove v. City of Joliet (1988), 167 Ill. App. 3d 457, 461, 521 N.E.2d 648.

The first factor — the existing uses and zoning of nearby property — is of paramount importance. (Gunderson, 156 Ill. App. 3d at 103, 508 N.E.2d at 1219-20; see also La Grange State Bank v. County of Cook (1979), 75 Ill. 2d 301, 309, 388 N.E.2d 388.) Plaintiffs make basically three arguments that the consideration of this factor weighs against the current zoning classification. First, plaintiffs emphasize the volume of traffic on Lake-Cook and Wilmont Roads, particularly at the intersection. Second, plaintiffs contend that the nearby business and commercial use establishes the character of the area. Third, plaintiffs again assert that the trial court improperly considered the Planned Residential Development.

Plaintiffs contend that the traffic on Lake-Cook and Wilmont Roads, especially at their intersection, shows that .the property is not appropriate for residential use. Plaintiffs argue that both Lake-Cook and Wilmont Roads are heavily travelled roads and that, because of the volume of traffic, only a small percentage of the land fronting Lake-Cook or Wilmont Roads is used for residential development. Defendant contends that Lake-Cook and Wilmont Roads are proper dividing lines between zoning districts.

Plaintiffs cite several cases for the proposition that the traffic and the nearby commercial use establish the character of the area. However, these cases are distinguishable because, unlike here, none of those cases involve a corner of an entirely single-family residential area. In this case, the area to the north, east, and northeast of the subject property is entirely residential.

Next, plaintiffs contend that the existing 1.5 million square feet of office space in the area establishes the character of the intersection as commercial. Although it is true that there is an enormous commercial use in the area, that use is on the west side of Wilmont Road and the south side of Lake-Cook Road. Again, the case cited by plaintiff, Illinois National Bank & Trust Co. v. County of Winnebago (1960), 19 Ill. 2d 487, 167 N.E.2d 401, is distinguishable because, unlike this case, there was no residential use abutting or surrounding the subject property.

Plaintiffs also state, “The first La Salle factor requires the court to rely on the existing use and zoning of the Subject Property, not potential uses and zoning.” (Emphasis in original.) This statement of law is incorrect. The first La Salle factor is “[t]he existing uses and zoning of nearby property.” (Emphasis added.) (La Salle, 12 Ill. 2d at 46, 145 N.E.2d at 69.) Thus, the emphasis under this factor is the nearby and surrounding property, not the subject property. Also, as discussed above, the existing zoning of the subject property allows for a Planned Residential Development, so defendant and the trial judge were focusing on the existing zoning.

Under this first factor, the evidence is closely balanced. The nearby property is both single-family residential and commercial. All the land to the north and east of the subject property is used for single-family residences. However, almost all the land to the south and west across Lake-Cook and Wilmont Roads is used for commercial development. In this case, Lake-Cook and Wilmont Roads are real lines of demarcation. The nearby property is separated into residential or commercial uses depending on which side of the street the property is located. Streets are reasonable lines of demarcation between residential and other uses, and merely because a property is located on a main traffic artery does not invalidate an ordinance restricting it to residential use. (Suhadolnik v. City of Springfield (1989), 184 Ill. App. 3d 155, 175-76, 540 N.E.2d 895.) Because there appears to be a reasonable difference of opinion, the trial court’s finding that this factor weighed in favor of the current zoning classification was not against the manifest weight of the evidence.

Although the second factor — the extent to which property values are diminished by the particular zoning restrictions — must be considered, it is not determinative that the property would be worth more if the zoning were reclassified because this would be true in virtually all reclassification cases. (Grobman v. City of Des Plaines (1975), 59 Ill. 2d 588, 595-96, 322 N.E.2d 443.) Plaintiffs contend, however, that the trial judge misconstrued this second factor and looked at only the value of the property as currently zoned, rather than focusing on the difference between the value as currently zoned and the value as zoned as proposed. This contention is without merit. The trial judge specifically stated the following:

“The testimony of Mr. O’Brien in court was that the proposed zoning would make the property value $1,400,000 compared to R-l at $360,000 and PRD [Planned Residential Development] at $700,000, and so there would be a loss of either $1,040,000 or $700,000. Mr. Lorenz stated that he believes the property developed as a PRD would be worth approximately $1.1 million, and I believe that testimony and its corollary that each of the 12 lots would then be worth something just less than $100,000. In my view, the value of the zoning as a PRD of at least $700,000 or perhaps as much as $1.1 million is a substantial value that does not deprive petitioner of the use of his property.

Therefore, the trial judge looked at the difference between what the property would be worth as currently zoned and as proposed.

Furthermore, it should be noted that the trial judge also considered the fact that Prodromes bought the property knowing it was classified as R-l and knowing that the previous owner had tried unsuccessfully to rezone the property This consideration was proper, because purchasers who acquire property with full knowledge of its zoning classification should not expect that the loss in value from the proposed use compared to the current zoning to be persuasive. See Lapkus Builders, Inc. v. City of Chicago (1964), 30 Ill. 2d 304, 310, 196 N.E.2d 682; Suhadolnik, 184 Ill. App. 3d at 176, 540 N.E.2d at 907; State of Illinois Medical Center Comm’n v. Peter Carlton at Ogden & Oakley, Inc. (1988), 169 Ill. App. 3d 769, 780, 523 N.E.2d 1091.

Plaintiffs have merged their discussion of the third and fourth factors as set forth in La Salle National Bank and make several arguments under the heading, “General Health, Safety and Welfare and Gain to Public v. Loss to Property Owners.”

Plaintiffs’ first contention is that benefits and detriments to both the nearby residents and the future homeowners who would be living in the subject property trader the existing zoning must be considered. As to the nearby residents, plaintiffs argue that, because they can already see the buildings across the street, there is no adverse impact on those residents from the proposed use. Clearly, more than just the sight of the proposed use is at issue. Plaintiffs argue that future residents of the subject property will suffer irreparable detriment because of the amount of traffic at the intersection. Although plaintiffs, contrary to Rule 341(eX7) (134 Ill. 2d R. 341(e)(7)), fail to cite any authority for the proposition that the benefits and detriments of future residents of the subject property must be considered, under the facts of this case plaintiffs’ argument is without merit. Residents currently living on property that is near or abuts the subject property would be the best measure for determining the effects of the intersection. However, those residents did not testify to any irreparable detriment to them caused by the intersection.

Next, plaintiffs argue that merely because neighboring property owners testified that the value of their properties would depreciate does not require a finding that this factor weighs in favor of defendant, citing Regner v. County of McHenry (1956), 9 Ill. 2d 577, 138 N.E.2d 545. Defendant contends that depreciation of surrounding property is a proper factor in determining the public welfare, citing Trendel v. County of Cook (1963), 27 Ill. 2d 155, 188 N.E.2d 668. Defendant also contends that the neighboring property owners purchased their homes relying on the existing zoning, citing a number of cases, including Amalgamated Trust & Savings Bank v. County of Cook (1980), 82 Ill. App. 3d 370, 402 N.E.2d 719. Although these cases appear to be somewhat in conflict, more recent case law seems to have harmonized these propositions. Although a property owner has a right to rely on zoning classifications and courts can consider the opinions of surrounding homeowners as to the depreciation of property values, zoning classifications may still be amended within the limits of the law. (See Norwood Builders v. City of Des Plaines (1984), 128 Ill. App. 3d 908, 925, 471 N.E.2d 634; Kleidon v. City of Hickory Hills (1983), 120 Ill. App. 3d 1043, 1057, 458 N.E.2d 931.) Thus, the depreciation of neighboring properties and homeowners’ reliance on existing zoning are appropriate considerations but, like the second factor, are not determinative of the issue.

Finally, plaintiffs maintain that the trial judge erred in crediting the testimony of defense witness Gerald Lindgren over the testimony of its witness, Joseph Zgonina, in determining the anticipated additional traffic to the residential area by the proposed use. Lindgren’s opinion was that the proposed use would result in traffic hazards and congestion and cause people to cut through the residential area. Zgonina’s opinion was that the proposed use would not cause traffic hazards and, according to a study which he performed, people were not cutting through the residential area as a short cut. Defendant characterizes Zgonina’s testimony as not believable and contends that the trial court properly considered Lindgren’s testimony over Zgonina’s. Because the trial judge is in a better position to determine the credibility of the witnesses and their opinions, the trial judge did not err in finding that this factor weighed in favor of defendant. Furthermore, although not argued by defendant, it should be noted that plaintiffs heavily rely on Zgonina’s study. However, that study tested whether people were currently using the residential roads as a short cut, not whether people would be using the residential roads as a short cut after the proposed use is installed.

Although not argued by plaintiffs under this heading, the fourth factor is basically a balancing test. The gain to the public is weighed against the hardship caused to the owner of the subject property by the existing zoning. In this case, the public gains, including the benefits of keeping the area residential, outweigh the hardship imposed on plaintiffs. The subject property was purchased with full knowledge of the zoning classification and of the prior attempts to rezone, and there was ample testimony that the area could be developed for residential use.

As to the fifth factor, plaintiffs contend that the subject property is not suitable for single-family residential use. Again, plaintiffs argue that the trial court could not consider the Planned Residential Development despite the fact that such a use is explicitly allowed under the current zoning. Further, plaintiffs claim that the traffic at this intersection and the length of a cul-de-sac needed to develop this area make the subject property unreasonable for the zoned purposes. However, three witnesses opined that the subject property was suitable for single-family residential development. Further, Barbara Houpt, the director of community development for defendant, testified that she received inquiries about developing the subject property for single-family use and that several cul-de-sacs in the Village exceed the maximum length.

Plaintiffs have failed to discuss the sixth factor: the length of time the property has been vacant as zoned, considered in the context of the land development in the vicinity. In this case, this factor is difficult to apply because Prodromes razed one home that was on the property and moved another home to a nearby lot. He then immediately attempted to rezone the property. Also, the previous owner attempted to rezone the property. Thus, it is difficult to apply this factor because it is conceivable that the property remained vacant in an area of tremendous development due to the owners’ attempts to rezone the property. Further, the subject property was not vacant until the Prodromes razed one home and moved another.

From our careful review of the record, we conclude that the trial court’s finding that the existing zoning was not unreasonable was not against the manifest weight of the evidence.

The third issue raised on appeal is whether the proposed use for the subject property is reasonable. We need only briefly address this issue because of our prior conclusion that the zoning ordinance is reasonable. Plaintiffs contend that the proposed use is reasonable for several reasons. First, they contend that the proposed use would be a transition from the commercial use across Wilmont and Lake-Cook Roads to the residential area in Hovland. Second, they contend that the landscaping would make the proposed use suitable because the residents would be unable to see the proposed use. Third, plaintiffs contend that the proposed use would not have an adverse effect on nearby properties. Fourth, the proposed use would not have an adverse effect on the traffic either at the intersection or the residential areas.

Defendant contends that the proposed use is not appropriate as a transition because the restaurant would be located within feet of the residents’ backyards and would be operating from 6 a.m. to 10 p.m. Also, defendant contends that the proposed use is inappropriate because it would have an adverse impact on surrounding properties. Defendant further argues that, although Zgonina’s study showed that cars currently were not using the residential streets as a short cut, it did not show whether cars would be using residential streets as a short cut after the proposed use is built.

On this record, we are satisfied that the trial court’s determination that the proposed use was not reasonable for the subject property was not against the manifest weight of the evidence.

For the foregoing reasons, the judgment of the circuit court of Lake County is affirmed.

Affirmed.

NICKELS and DUNN, JJ., concur.


author: JUSTICE GEIGER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STEVEN NICHOLSON, Defendant-Appellant.
    Second District
    No. 2—89—1141
    Opinion filed May 16, 1991.

      G. Joseph Weller and Barbara Paschen, both of State Appellate Defender’s Office, of Elgin, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton (William L. Browers and Marshall M. Stevens, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GEIGER

delivered the opinion of the court:

The defendant, Steven Nicholson, was convicted of residential burglary (Ill. Rev. Stat. 1989, ch. 38, par. 19—3). He brings this appeal, questioning the computation of the credit for time served he received for his pretrial incarceration. We affirm.

On August 10, 1987, the defendant was arrested by the Oak Forest police and placed in custody. When the defendant was arrested on August 10, he was in possession of certain property related to an August 1987 residential burglary in Du Page County. The Oak Forest arrest and custody apparently were not, however, related to that possession.

On September 16, 1987, while the defendant was in custody outside Du Page County, the residential burglary indictment in this case was filed in Du Page County and bond was set on that indictment. The defendant has at no time made bond in the Du Page County case.

On March 8, 1988, the court in Du Page County placed its pending case against the defendant on “inactive” status with the notation “warrant out for service on indictment.” On April 27, 1989, a writ of habeas corpus ad prosequendum was issued to the Illinois Department of Corrections (DOC), where the defendant was serving a sentence on a conviction unrelated to the Du Page County residential burglary charge, and the defendant was transported to Du Page County for his first appearance on the residential burglary charge. On July 31, 1989, the defendant was again in court in Du Page County for this case. He offered a guilty plea despite the parties’ dispute over the proper sentence credit due him.

At the sentencing hearing, the court heard argument on the issue of sentence credit. The State argued that it was upon the April 27, 1989, issuance of the writ to the DOC that the defendant was first subject to the Du Page County court’s jurisdiction and that any credit for time served should be calculated from that time. The defendant disagreed, arguing that since he had been held in custody since prior to the filing of the indictment in this case, he was entitled to credit for time served from the date of the filing of the indictment. The court found that the defendant was only entitled to credit for time served from April 27, 1989. The defendant appealed.

The defendant argues that he was due sentence credit for his incarceration from the date the Du Page County indictment was filed and his bond was set. He relies primarily on the fifth district decision in People v. Higgerson (1987), 157 Ill. App. 3d 564. In Higgerson, the court allowed the defendant sentence credit from the date that his bond was set, despite the fact that on that same date a mittimus was issued for him to serve a 364-day sentence on an unrelated charge.

The Higgerson court noted that the defendant did not post bond on the charge in question. It reasoned that, even if the defendant had not been incarcerated on the unrelated charge, he nonetheless would have been held in jail for failure to post bond on the charge at bar. (157 Ill. App. 3d at 566-67.) Consequently, it concluded that for the purposes of section 5 — 8—7 of the Unified Code of Corrections (Ill. Rev. Stat. 1989, ch. 38, par. 1005—8—7(b)), which outlines the calculation of a term of imprisonment, while the defendant was serving his 364-day sentence on the unrelated offense, he was also in custody for the failure to post bond on the offense at bar. (157 Ill. App. 3d at 567.) Section 5—8—7(b) states that an “offender shall be given credit on [his sentence] for time spent in custody as a result of the offense for which the sentence was imposed.” Ill. Rev. Stat. 1989, ch. 38, par. 1005—8—7(b).

The State argues that the question presented here has not been resolved by this court and that the decision of the fifth district in Higgerson conflicts with the decision of the third district in People v. Stuckey (1981), 93 Ill. App. 3d 260. It urges that we follow the reasoning in Stuckey, where the court referred to the language of section 5 — 8—7(b) and found that no sentence credit was due except for time in custody that was a result of the offense for which the sentence was imposed. 93 Ill. App. 3d at 263.

By its plain language (Maloney v. Bower (1986), 113 Ill. 2d 473, 479), section 5—8—7(b) allows sentence credit for custody resulting only from the offense at hand. It does not, by its own terms, extend to time during which a defendant might have been held in custody on the charge at hand, when another charge was the actual basis for his being held. To the extent that Higgerson holds otherwise, we decline to follow it. We note, however, that the import of Higgerson is less clear following the fifth district’s recent decision in apparent accord with our view on this question. People v. Wiseman (1990), 195 Ill. App. 3d 1062, 1065-66.

In Wiseman, the court considered the defendant’s claim for sentence credit for the period after bond was set in the case at bar. During that period he also was in DOC custody on another offense. The Wiseman court rejected the defendant’s claim that he was entitled to credit whether or not he had been in simultaneous custody for both cases. The court considered its earlier decision in Higgerson and found it distinguishable on the facts. (Wiseman, 195 Ill. App. 3d at 1066.) It observed that, during the period in question, defendant Higgerson had been in prison on both relevant offenses. In its own case, however, the Wiseman court found no ambiguity regarding which offense had been the basis for the period of custody in question there. (195 Ill. App. 3d at 1066.) It denied credit, as the custody had not been based on the offense in question.

Like the Wiseman court, we find no ambiguity here on the question of which offense was the basis for the defendant’s custody between his arrest and incarceration on August 10, 1987, and his transportation to Du Page County on April 27, 1989. As that incarceration was not a result of the Du Page County offense, we find no error in the court’s award of sentence credit, and we affirm its judg•ment.

Affirmed.

DUNN and UNVERZAGT, JJ., concur.


author: JUSTICE DUNN

text:
    THE HUMAN RIGHTS COMMISSION et al., Petitioners-Appellees, v. THE ROCKFORD TOWNSHIP HIGHWAY DEPARTMENT, Respondent-Appellant.
    Second District
    No. 2—90—0786
    Opinion filed May 8, 1991.
    Rehearing denied June 17, 1991.

      Roland W. Burris, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Eve Moran, Assistant Attorney General, of Chicago, of counsel), for petitioner Human Rights Commission.
    Michael K. Havrilesko, of Havrilesko & Associates, of Rockford, for petitioner Harold Fuzzell.
    Peter Alexander and Gary C. Flanders, both of Alexander & Cicero, P.C., of Rockford, for respondent.
   JUSTICE DUNN

delivered the opinion of the court:

Respondent, Rockford Township Highway Department (Department), appeals from an order of the Illinois Human Rights Commission (Commission), finding that it committed a civil rights violation by refusing to hire claimant, Harold Fuzzell, as a road maintenance worker because of his race in violation of section 2 — 102(A) of the Illinois Human Rights Act (Act) (Ill. Rev. Stat. 1989, ch. 68, par. 2—102(A)). Respondent contends that the Commission’s decision was against the manifest weight of the evidence because Fuzzell failed to prove he applied for the position in question, did not prove he was qualified for the position, and did not show that the Department’s articulated reasons for not hiring him were pretextual. We reverse.

The Department was responsible for maintenance of about 200 miles of roads in Rockford Township. The Rockford Township Workfare program assigned Fuzzell to do part-time work for the Department from September 1982 until December 1984. Under the Workfare program, recipients of monthly general assistance benefits such as Fuzzell were required to accept part-time assignments to work for various governmental units in order to maintain their eligibility for benefits. The Department did not consider Fuzzell as one of its employees during the period he was assigned to it by the Workfare program.

In September 1984, Fuzzell filed charges against the Department with the Department of Human Rights. The Commission filed a formal complaint against the Department in December 1986. The complaint alleges that Fuzzell applied in March 1984 and September 1984 for a position as a truck driver with the Department but was not hired because of his race. Instead of hiring Fuzzell, who is black, the Department hired Jack Mandala, a white male, for a truck driver position on May 3, 1984. The complaint further alleged that Fuzzell was as qualified as Mandala for the position or better qualified.

An administrative law judge (ALJ) conducted a hearing concerning the complaint on November 12 and 13, 1987. The following facts were brought out during the testimony at the hearing. During the period in which Fuzzell was assigned to the Department by the Workfare program, Jerry Tassoni was the Department commissioner, and Shirley Scherer was his secretary. Greg Calleia was the foreman until June 1984 when Tassoni discharged him. Scherer became Commissioner in May 1985, however, after defeating Tassoni in an election, and she rehired Calleia to serve as foreman. Early in May 1984, the Department hired Jack Mandala, a white male, to work as a road maintenance worker.

During Scherer’s election campaign, she told Fuzzell that if he aided in her campaign, she would give him a job with the Department if elected. Scherer testified that shortly after taking office as Commissioner, she spoke to Fuzzell and told him to report for work on a particular day. He failed to do so. Scherer testified that she again spoke to Fuzzell and told him to report on another date. Fuzzell failed to appear on that date, however, and Scherer decided he was too unreliable to work for the Department. Fuzzell denied that Scherer had given him any specific dates to report to work. Fuzzell testified that he went to the Department offices several times in May 1985 to inquire about his new job only to be told by Greg Calleia that he should return at another time. Finally, Scherer told Fuzzell he would not be hired because he had twice failed to report for his first day of work.

According to Scherer and Calleia, the Department did not have a job classification entitled “truck driver.” Instead, it had road maintenance workers and general maintenance workers. Scherer testified that the position she intended to hire Fuzzell for in May 1985 was a general maintenance position which would not have required him to be able to drive a truck. Calleia testified that road maintenance workers were required to obtain a Class C driver’s license during their first 90 days on the job so they would be able to drive trucks. They were allowed to use township trucks to get the license. Calleia stated .that the duties of road maintenance workers included filling potholes, plowing snow, and cutting grass along highways.

Fuzzell testified that he filled out applications for employment with the Department in March 1984 and September 1984. He stated that he gave the application to Scherer in March. According to Fuzzell, he gave his September application to an employee named Frank Fasula, who took it into Commissioner Tassoni’s office. Fuzzell testified that Calleia went into Tassoni’s office at the same time Fasula went in with the application. Shirley Scherer testified that she remembered Fuzzell picking up an employment application from her on one occasion but did not recall him turning in the application.

During Fuzzell’s cross-examination, the Department’s attorney asked whether he had a driver’s license in 1984. Fuzzell responded by saying he had a Class A license. The Department’s attorney then asked, “Had it been suspended?” Fuzzell stated, “It had been suspended, yes.”

Calleia and Scherer both testified that Fuzzell would often leave at 11:30 on the days of his Workfare assignments even though he was supposed to stay until 12 noon. Calleia also stated that Fuzzell lacked initiative; he always had to be told what to do.

The ALJ who conducted the hearing issued a recommended order in which she concluded that the Department had illegally discriminated against Fuzzell by refusing to hire him because of his race and by hiring Mandala instead. The ALJ recommended that the Department be ordered to employ Fuzzell and also recommended awards of back pay and attorney fees. The ALJ determined that Fuzzell had applied for the position in March 1984 but found he had not applied in September 1984. A three-member panel of the Commission upheld the ALJ’s recommended decision in an order dated April 12, 1990. The Department appealed to this court after the full Commission denied its petition for rehearing.

Our supreme court has determined that the three-part analysis applied by the United States Supreme Court in McDonnell Douglas Corp. v. Green (1973), 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817, and Texas Department of Community Affairs v. Burdine (1981), 450 U.S. 248, 67 L. Ed. 2d 207, 101 S. Ct. 1089, for actions brought under title VII of the Civil Rights Act of 1964 (42 U.S.C. §2000e et seq. (1988)) also applies to claims under the Illinois Human Rights Act. (Zaderaka v. Illinois Human Rights Comm’n (1989), 131 Ill. 2d 172, 178.) The first step in this analysis is that the claimant must establish by a preponderance of the evidence a prima facie case of unlawful discrimination. (Zaderaka, 131 Ill. 2d at 178-79.) In order to do so, the claimant must prove by a preponderance of the evidence that he or she applied for a position and was qualified for the position but was rejected under circumstances that give rise to an inference of unlawful discrimination. Burdine, 450 U.S. at 253, 67 L. Ed. 2d at 215, 101 S. Ct. at 1093.

If the claimant establishes a prima facie case, a rebuttable presumption arises that the employer discriminated against him or her. (Zaderaka, 131 Ill. 2d at 179.) To rebut this inference, the employer must articulate a legitimate, nondiscriminatory reason for its decision. (131 Ill. 2d at 179.) If the employer does so, the claimant must prove by a preponderance of the evidence that the articulated reason was not the true reason for the employer’s decision but was instead a pretext for illegal discrimination. (131 Ill. 2d at 179.) The ultimate burden of persuading the trier of fact that the employer was guilty of unlawful discrimination rests with the claimant at all times. 131 Ill. 2d at 179.

We agree with the Department’s contention that Fuzzell failed to establish a prima facie case of unlawful discrimination because he did not prove he was qualified for a road maintenance job. The evidence is unrebutted that the primary requisite for the job was the applicant’s eligibility for a Class C driver’s license, which had to be obtained within 90 days if the applicant was hired. While Fuzzell testified that he had a Class A driver’s license in 1984, he also stated that it had been suspended. We interpret Fuzzell’s testimony as indicating that the license had been suspended in 1984.

It is impossible to determine from Fuzzell’s testimony whether Fuzzell was eligible to obtain a Class C license during the relevant time period, March 1984 through May 1984, the time of the alleged discrimination. If Fuzzell’s Class A license was suspended at this time, he would not have been eligible to receive a Class C license. (See Ill. Rev. Stat. 1989, ch. 951/2, par. 6—103(3).) Although it is apparent from his testimony that his license was suspended during some portion of 1984 at the very least, it cannot be determined exactly when the license was suspended or for how long.

Fuzzell had the burden of establishing that he was qualified for a position as a road maintenance worker and, therefore, that he was eligible to obtain a Class C driver’s license. In light of the above, he failed to do so. Therefore, he failed to set forth a prima facie case under Burdine, and the Commission’s order must be reversed.

Fuzzell argues that the license suspension is irrelevant because the evidence clearly establishes that the Department was unaware of it at the time of the alleged discrimination. The three-member panel of the Commission which considered this case agreed with this argument. In Burdine, however, the court stated that a claimant “must prove by a preponderance of the evidence that she applied for an available position for which she was qualified.” (Emphasis added.) (Burdine, 450 U.S. at 253, 67 L. Ed. 2d at 215, 101 S. Ct. at 1094.) There is no exception mentioned in the case for situations such as the case at bar, in which the employer was unaware of the potential disqualifying factor at the time of the alleged discrimination.

A similar situation existed in Village of Oak Lawn v. Illinois Human Rights Comm’n (1985), 133 Ill. App. 3d 221. In that case, the claimant asserted that the Village unlawfully declined to hire her as a police officer because she was disabled. The complainant had made false representations on her employment application, although the Village was unaware of this at the time it refused to hire her. The court held that the claimant had failed to establish a prima facie case of unlawful discrimination and stated:

“Walsh has not established at the outset that she was qualified for the job of a police officer. Trustworthiness, reliability, good judgment, and integrity are all material qualifications for any job, particularly one as a police officer. Her lying from the beginning disqualified her from consideration for the position and made her an unfit employee for the Oak Lawn Police Department.” Village of Oak Lawn, 133 Ill. App. 3d at 224.

The claimant in the Oak Lawn case argued that her misrepresentations were irrelevant because the Village was unaware of them when it refused to hire her (133 Ill. App. 3d at 223), but the court rejected this argument. Likewise, we reject Fuzzell’s argument that his potential lack of eligibility for a Class C driver’s license was irrelevant because the Department was unaware of his 1984 license suspension at the time of the alleged discrimination.

Fuzzell also argues that his 1984 suspension was irrelevant because the evidence reveals that Scherer and Calleia helped Victor Macias, a road maintenance worker, obtain a temporary driving permit in 1985 after his license was suspended for driving under the influence of alcohol. It can be inferred from the evidence that Macias, who was a long-standing road maintenance worker for the Department at the time, already had a Class C license and that this license had been suspended. Thus, Macias may have been eligible for a judicial driving permit which would have allowed him to drive within the scope of employment related duties. (See Ill. Rev. Stat. 1989, ch. 95½, par. 6—206.1.) Fuzzell, however, did not have a Class C license in 1984, and, as we have seen, he could not have obtained one while his Class A license was suspended. Thus, his situation was distinguishable from that of Macias. Furthermore, the fact that the Department laid off Macias after his license was suspended and only reinstated him after he received the restricted driving permit indicates that the ability to acquire a valid Class C license was a prerequisite for the job. Since Fuzzell failed to prove that he met this prerequisite at the relevant time, the order of the Commission finding the Township guilty of discrimination for refusing to hire him and awarding him back pay and other relief must be reversed.

Accordingly, the decision of the Illinois Human Rights Commission is reversed.

Reversed.

REINHARD, P.J., and NICKELS, J., concur.


author: JUSTICE UNVERZAGT

text:
    THE COUNTY OF De KALB, Plaintiff-Appellee, v. ROBERT I. SMITH et al., Defendants-Appellants (Fabian S. Aita, as Trustee, et al., Defendants).
    Second District
    No. 2—90—0323
    Opinion filed May 15, 1991.

      Scott A. Kracen, of Sycamore, for appellants.
    Michael P. Coghlin, State’s Attorney, of Sycamore (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, and Barbara A. Chasnoff, of counsel), for appellee.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Defendants, Robert I. Smith and his wife, Betsy W. Smith, contest in this appeal the authority of the County of De Kalb to condemn two adjoining parcels of land owned by them in the county seat, Sycamore, Illinois, for parking lot purposes. The remaining defendants listed have secondary mortgage or trust rights in the subject property but are not involved in this appeal. After the Smiths’ amended traverse and motion to dismiss was denied, the cause proceeded to jury trial, and judgment was entered on the jury’s verdict finding $175,000 to be just compensation for the property taken. The Smiths do not challenge the verdict, only the court’s order denying their amended traverse and motion to dismiss.

They contend (1) the county did not have the authority to condemn the property for the purpose of constructing a parking lot; (2) the stated purpose for the properly in the petition for condemnation is not the same as the purpose set forth in the underlying county board resolution; (3) the stated purpose for the property in the petition for condemnation is a private, not public, use; (4) the underlying resolution did not specify the intended use of the property was for construction of a parking lot to provide additional parking spaces; and (5) the county failed to present sufficient evidence of necessity for the taking at the hearing on the motion to dismiss.

Because we find it dispositive, we address only the first issue raised by the Smiths: whether the county had the authority to condemn their property for parking lot purposes. We conclude below it had no such authority. Accordingly, we vacate the judgment on the jury’s verdict and remand the cause for entry of a judgment dismissing the petition for condemnation.

The Smiths’ argument is this: any power of condemnation the county may have derives solely from enabling legislation which must be strictly construed in their favor as property owners; there is no enabling legislation which gives the county the authority to condemn, rather than purchase, private property for parking lot purposes; this lack of authority to condemn is fatal to its petition for condemnation. We agree.

It is well established that the power to exercise eminent domain is inherent in the State. (Department of Public Works & Buildings v. Schlich (1935), 359 Ill. 337, 345.) Its power to condemn is limited by the constitution to the taking of private property only where public necessity requires it and then only by the payment of just compensation. (Ill. Const. 1970, art. I, §15.) In contrast to the inherent eminent domain powers of the State, the power of any corporation or department of the government to exercise eminent domain must be specifically conferred by legislative enactment. (Schlich, 359 Ill. at 345; Department of Public Works & Buildings v. Ryan (1934), 357 Ill. 150, 154; Village of Long Grove v. First National Bank (1987), 164 Ill. App. 3d 253, 255.) A county is a body politic and corporate (Ill. Rev. Stat. 1989, ch. 34, par. 5—1001), “a political subdivision of the territory of the State, organized for the convenient exercise, locally, of such powers of the government as may be delegated to it” (City of Edwardsville v. County of Madison (1911), 251 Ill. 265, 267). Whether a particular statute specifically confers the power of eminent domain is within the province of the court to decide as a question of law (Long Grove, 164 Ill. App. 3d at 255). Before submitting to the jury the question of just compensation, the court must determine whether a right of condemnation in a particular case exists. (City of Chicago v. Jewish Consumptives Relief Society (1926), 323 Ill. 389, 396.) Because this determination is a matter of law, the scope of our review is independent of, not deferential to, the decision of the trial court. People ex rel. Edgar v. Curley (1989), 188 Ill. App. 3d 37.

In an effort to secure additional parking space in proximity to its existing courthouse, public safety building and administration building in Sycamore, the county of De Kalb sought to purchase five nearby parcels of property including the two owned by the Smiths. Agreement with the owners of three of the parcels was reached, but the Smiths declined to sell the properties at 200 and 206 North Main, which are located kitty-comer from the courthouse to the northeast. The property at 200 North Main, formerly the site of a gas station, is used for an automobile dealership. The property at 206 North Main is the site of the Smiths’ real estate office. The building at that address also contains three apartment rental units.

On February 22, 1988, the county board passed a resolution directing the De Kalb County State’s Attorney to file condemnation proceedings to acquire the two Smith parcels. Therein it noted that there was “an immediate need to alleviate parking and building problems in and around the courthouse complex,” that “repeated attempts to negotiate in good faith for the acquisition of the two [Smith] parcels in question have been unsuccessful,” and that the land in question “is essential to accommodate parking needs of all of the citizens of De Kalb County.”

The county’s subsequently filed petition for condemnation alleged its authority to acquire the parcels by eminent domain to be “section 303— 1 [sic — section 24(1)]” and “section 432 [sic — section 26]” of “An Act to revise the law in relation to counties” (Counties Code or the Code) (Ill. Rev. Stat. 1987, ch. 34, pars. 303(1), 432). Those sections are presently codified as sections 5—1005 and 5—1106 of the Code (Ill. Rev. Stat. 1989, ch. 34, pars. 5 — 1005, 5—1106) and will be referred to herein as such inasmuch as the language pertinent here is identical.

In relevant part, section 5 — 1005 provides:

“Each county shall have power:
1. To purchase and hold the real and personal estate necessary for the uses of the county ***.” Ill. Rev. Stat. 1989, ch. 34, par. 5—1005.

In relevant part, section 5 — 1106 provides:

“It shall be the duty of the county board of each county:
First — To erect or otherwise provide when necessary, and the finances of the county will justify it, and keep in repair, a suitable court house, jail and other necessary county buildings ***.” Ill. Rev. Stat. 1989, ch. 34, par. 5—1106.

The county argued below, as it does here, that parking is a necessary adjunct to those buildings which it has a duty to provide under section 5 — 1106 and that it has the duty and power to provide by eminent domain a court complex, including parking, when it is necessary. In support, it cites County of Mercer v. Wolff (1908), 237 Ill. 74, and People ex rel. Director of Finance v. YWCA (1981), 86 Ill. 2d 219.

The Smiths distinguish Mercer and YWCA and — following an exhaustive list of over 200 specific statutory grants of condemnation power by the legislature to State agencies, to the United States government, to counties, townships, municipalities, private corporations and individuals — conclude the State knows how to grant the specific power of condemnation when it so chooses. Not only because the legislature did not specifically grant the county the power to condemn property for parking lot purposes, but also because it did specifically provide the county with powers relative to parking facilities as discussed below, the Smiths contend the statutory sections set forth in the county’s petition for condemnation did not confer upon it the power to condemn their property for parking lot purposes. As such, the county’s petition was fatally defective and the court erred in denying their traverse and motion to dismiss.

In County of Mercer v. Wolff, the county resolved to build a jail, and, unable to agree with the owners of the selected site on the compensation to be paid, it filed a petition for condemnation. A jury fixed compensation at $1,200 for each of the two owners, Wolff and Prentiss. Wolff, and the owner of an adjoining parcel whose cross-petition for consequential damages was found to have been properly dismissed, appealed. Wolff contended the county had no authority to acquire by condemnation property on which to build a jail.

Referring to the same sections of the Code relied upon by the county in the instant cause (codified at that time as sections 24 and 26 of chapter 34 of the revised statutes), and, noting the imperativeness of the county’s duty to provide “a suitable court house [sic], jail and other necessary county buildings,” the court in Mercer found the county could avail itself of section 2 of the Eminent Domain Act. That section, present-day section 7 — 102 of article VII of the Code of Civil Procedure (the Eminent Domain Act), provides that where the right to construct or maintain, inter alia, “any *** public work or improvement” has been conferred by general law upon any corporate authority and the compensation to be paid for the property sought to be appropriated cannot be agreed upon, it is lawful for the party authorized to construct the public work to apply to have the compensation assessed in the manner provided by the Act. See Ill. Rev. Stat. 1989, ch. 110, par. 7—102.

The “imperativeness” of the county’s duty to provide a jail was pivotal to the court’s decision in Mercer that the county could avail itself of eminent domain proceedings to have the compensation assessed. That same imperativeness is not present here. It is clear from the language of the resolution and petition to condemn that the county has already provided a suitable courthouse, jail and other necessary county buildings. The power of eminent domain is being invoked here by the county to take private property against the will of its owners because of “an immediate need to alleviate parking and building problems in and around the courthouse complex” and because “the land is essential to accommodate the parking needs of all of the citizens of De Kalb County,” and because the county “is, and will be, engaged in the construction of parking facilities which will be used by the petitioner and its employees in conjunction with the operation of its existing courthouse, Public Safety Building and Administration Building.”

The county has pointed to no statute which requires it either to provide parking facilities or to alleviate a shortage of same in connection with its imperative duty to provide the types of county buildings referred to in section 5—1106 of the Code. We do not disagree that parking seems to be a reasonable adjunct to the county’s duty under section 5 — 1106 to provide such county buildings by eminent domain. These buildings already exist, however, and we are bound to construe strictly laws purporting to authorize the taking of private property for public use since they are in derogation of the rights of the citizens. (YWCA, 86 Ill. 2d at 232-33; City of Oakbrook Terrace v. La Salle National Bank (1989), 186 Ill. App. 3d 343, 348.) We decline to read section 5 — 1106 as placing an imperative duty on the county to provide parking in connection with existing county buildings.

Nothing in YWCA convinces us otherwise. In that case, parking facilities apparently were to be an integral part of the court complex plan at issue there. (YWCA, 86 Ill. 2d at 239.) Without specifically being presented with or addressing the question of whether private property for parking facilities to be used in conjunction with the court complex could be acquired by a county by the power of eminent domain, the court in YWCA determined that there was no substantial evidence of need for that portion of the property being sought for the circuit court’s use (which included the greater part of the parking facilities) and that the State’s petition attempting to take an entire block in downtown Springfield should have been dismissed because it was an attempt to take a “ ‘grossly excessive’ ” amount of land. YWCA, 86 Ill. 2d at 240.

As the Smiths cogently argued below, and do here as well, the legislature has otherwise provided the county with the power “[t]o purchase and hold real estate for the construction and maintenance of [non-revenue producing] motor vehicle parking facilities for persons using county buildings” (emphasis added) (Ill. Rev. Stat. 1989, ch. 34, par. 5—1005(17)), and any county is authorized to “[o]wn, construct, equip, manage, control, erect, improve, extend, maintain and operate [revenue producing] motor vehicle parking [facilities] *** and to purchase the real estate to be used for parking facilities, as the county board finds necessary” (emphasis added) (Ill. Rev. Stat. 1989, ch. 34, par. 5—11001(a)). In contrast, municipalities have been specifically granted the authority to acquire off-street parking facility sites by condemnation under the power of eminent domain. (Ill. Rev. Stat. 1989, ch. 24, pars. 11—71— 1(a), (d).) The legislature’s specific grant of authority to the county to purchase real estate for parking facilities for persons using county buildings necessarily carries the implication it does not have the authority to acquire such real estate by condemnation under the power of eminent domain. Without a specific grant of authority, the county had no right of condemnation. Department of Public Works & Buildings v. Neace (1973), 13 Ill. App. 3d 982, 984.

We conclude the county did not have the authority under sections 5 — 1005 and 5 — 1106 to condemn the Smiths’ property for parking lot purposes and the Smiths’ traverse and motion to dismiss should have been granted.

The circuit court’s judgment on the jury’s verdict is vacated, and the cause is remanded for entry of an order dismissing the county’s petition for condemnation.

Vacated and remanded.

WOODWARD and INGLIS, JJ., concur.