author: JUSTICE UNVERZAGT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. ONE 1986 WHITE MAZDA PICKUP TRUCK, VIN JM2UF1118G0577930, Defendant (Mark Brown, Claimant-Appellee).
    Second District
    No. 2—92—0666
    Opinion filed September 23, 1993.
    David R. Akemann, State’s Attorney, of Geneva (Heidi Baxter, Assistant State’s Attorney, and William L. Browers, Robert J. Biderman, and Jeffrey K. Davison, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Fred M. Morelli, Jr., of Law Offices of Morelli & Cook, and Wilson Burnell, both of Aurora, for appellee.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

The State filed a complaint requesting forfeiture of a 1986 Mazda pickup truck pursuant to section 505(aX3) of the Illinois Controlled Substances Act (Act) (Ill. Rev. Stat. 1991, ch. 56%, par. 1505(aX3) (now 720 ILCS 570/505(aX3) (West 1992))), alleging that the truck was used to facilitate the possession of cocaine that claimant Mark Brown was carrying on his person when he was arrested. The trial court denied the request, and the State appeals. The sole issue presented on appeal is whether the trial court erred in denying the request for forfeiture.

At the forfeiture hearing, the parties stipulated that Mark Brown was stopped in his truck on October 9, 1991, due to a warrant which had issued for Brown’s failure to appear on a traffic violation. The police officer searched Brown. Brown had a clear plastic straw in his right interior coat pocket and a plastic bag containing cocaine in his underwear. Subsequent tests established that the straw contained traces of cocaine. The total weight of the substance containing cocaine was 3.5 grams. Defendant pleaded guilty to possession of a controlled substance. See Ill. Rev. Stat. 1991, ch. 56%, par. 1402 (now 720 ILCS 570/402 (West 1992)).

On appeal, the State argues that the trial court erred in denying the complaint for forfeiture of Brown’s truck because it “facilitated” Brown’s possession of the cocaine within the meaning of the forfeiture statute. The forfeiture statute provides:

“(a) The following are subject to forfeiture:
(1) all substances which have been manufactured, distributed, dispensed, or possessed in violation of this Act;
(2) all raw materials, products and equipment of any kind which are used, or intended for use in manufacturing, distributing, dispensing, administering or possessing any substance in violation of this Act;
(3) all conveyances, including aircraft, vehicles or vessels, which are used, or intended for use, to transport, or in any manner to facilitate the transportation, sale, receipt, possession, or concealment of property described in paragraphs (1) and (2) ***.” (Ill. Rev. Stat. 1991, ch. 56%, par. 1505(a) (now 720 ILCS 570/505(a) (West 1992)).)

The question presented by the facts of this case, whether the mere existence of a controlled substance on the person of a vehicle occupant subjects the vehicle to forfeiture, has never been addressed by the Illinois Supreme Court or this court.

We may review the trial court’s ruling as a matter of law because the facts are undisputed. (People v. 1946 Buick (1989), 127 Ill. 2d 374, 378.) We reject the State’s argument that the statute at issue should be construed in light of Federal forfeiture provisions as interpreted by the Federal courts. (See 21 U.S.C.A. §881 (West Supp. 1993).) The State bases its argument on the declaration of legislative intent in the Drug Asset Forfeiture Procedure Act (see Ill. Rev. Stat. 1991, ch. 56V2, par. 1672 (now 725 ILCS 150/2 (West 1992))). That declaration of legislative intent relates to the provisions of that act. The forfeiture statute at issue is a part of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1991, ch. 56V2, par. 1100 et seq. (now 720 ILCS 570/ 100 et seq. (West 1992))), and that act has its own statement of legislative intent which does not suggest that its provisions be interpreted according to Federal law. See Ill. Rev. Stat. 1991, ch. 56V2, par. 1100 (now 720 ILCS 570/100 et seq. (West 1992)).

A review of the case law on the issue presented reveals very few cases with similar facts to those in the present case. The Appellate Court, Third District, has addressed the issue whether a vehicle is subject to forfeiture under several fact patterns. In People ex rel. Mihm v. Miller (1980), 89 Ill. App. 3d 148, defendant carried the contraband in his pocket, but it fell out. In People ex rel. Barra v. Lee (1984), 128 Ill. App. 3d 128, the contraband was within a purse in the vehicle driven by the defendant. In justifying the different results reached, the court stated that in Miller it was clear from the fact that the contraband fell out of the occupant’s pocket that the vehicle offered the exclusive means of privacy and therefore the vehicle was used in the commission of an offense. (See Ill. Rev. Stat. 1981, ch. 38, par. 36 — 2 (now codified, as amended, at 720 ILCS 5/36 — 2 (West 1992)).) In contrast, the vehicle in Lee was not subject to forfeiture where the contraband was completely concealed in a purse because the vehicle did not facilitate the commission of the offense by affording additional privacy. (Lee, 128 Ill. App. 3d at 130.) In two more recent cases, the Appellate Court, Third District, held that, where the controlled substance was in a Tupperware container in a vehicle’s glove compartment that vehicle was subject to forfeiture (People ex rel. Vandersnick v. One 1987 Dodge Charger Automobile (1990), 193 Ill. App. 3d 547, 553), and contraband located in a wallet in a glove compartment of a vehicle subjected the vehicle to forfeiture. (People v. One 1986 Ford Ranger Pickup Truck (1991), 213 Ill. App. 3d 1085, 1089.) Obviously, these two later cases have facts distinguishable from those in the case before us because here the contraband was concealed within the clothing of the person of the defendant, not housed within a compartment of the vehicle.

The Appellate Court, Fifth District, examined a forfeiture statute in determining whether drugs in a bottle inside of a duffel bag which was located within a vehicle subjected the vehicle to forfeiture. The court held that it did not because there was no extra dimension of privacy afforded by the vehicle. (People ex rel. Kilquist v. One 1978 Mazda G L C Automobile (1988), 165 Ill. App. 3d 540, 543.) While Mazda was decided under a different forfeiture statute (see Ill. Rev. Stat. 1985, ch. 38, par. 36-2 (now 720 ILCS 5/36-2 (West 1992))), the case was still decided in terms of whether the vehicle “facilitated” the offense.

The Illinois Supreme Court has addressed the issue of forfeiture under section 505(aX3) of the Act in People v. 1946 Buick (1989), 127 Ill. 2d 374. It held that forfeiture was proper where the owner and driver of the vehicle emptied a packet of cocaine onto the vehicle’s floor in order to hide the drug from approaching police. The court interpreted the statute, noting that the key word in the statute is “facilitate.” Relying on the definition of “[facilitate,” which is “[t]o make easier or less difficult” (see Black’s Law Dictionary 531 (5th ed. 1979)), the court held that the defendant used the vehicle, albeit unsuccessfully, to make the possession of the drug easier. The supreme court specifically declined to decide whether the mere existence of a controlled substance on the person of a vehicle occupant subjects the vehicle to forfeiture. Buick, 127 Ill. 2d at 378.

Although the supreme court declined to determine the issue presented before us today, two districts have held that the possession of drugs on the person of the vehicle occupant subjects the vehicle to forfeiture under section 505 of the Act. (See Ill. Rev. Stat. 1991, ch. 56V2, par. 1505(a) (now 720 ILCS 570/505(a) (West 1992)).) The Appellate Court, First District, held that a person’s vehicle was subject to forfeiture where cocaine, a razor, a small thin straw, amphetamines and Valium were within the driver’s purse in the vehicle. The court found that the vehicle was used to make possession of the cocaine easier. (People ex rel. Daley v. 1986 Honda (1989), 182 Ill. App. 3d 322.) In so determining, the court noted that the driver “smoked marijuana as she drove, carrying the cocaine in her purse and more marijuana in the glove compartment.” The court stated that the driver “apparently believed the car provided her with a dimension of privacy which would permit her to use, possess and transport controlled substances on the public streets.” (Honda, 182 Ill. App. 3d at 325.) The Honda court stated that “[a] person carrying drugs may use a car to be more elusive, move about at will, travel further, and escape observation, detection and capture.” Honda, 182 Ill. App. 3d at 325-26.

The Appellate Court, Fourth District, followed Honda in People ex rel. Broch v. Hogg (1991), 213 Ill. App. 3d 188. In that case, the police officer stopped the defendant for driving a vehicle with tinted windows. After the police officer observed a straw containing a white residue on the floor of the passenger side, a field test revealed the white residue was positive for cocaine and the defendant was placed under arrest. During a search of the defendant, the police officer requested that he remove his shoes. Upon doing so, the defendant attempted to remove a substance containing cocaine from his sock and transfer it to his jacket pocket. The police officer noticed the movement and confiscated the cocaine. In holding that the vehicle should be forfeited, the appellate court expressed its opinion that the ruling in Honda rather than Lee was more consistent with the supreme court’s opinion in Buick. Hogg, 213 Ill. App. 3d at 195.

Despite Hogg’s suggestion that Honda is consistent with the supreme court opinion in Buick, we fail to see any indication that the supreme court would decide this issue in favor of forfeiture. We decline to follow Honda and Lee to the extent that they suggest that when a person carrying a controlled substance concealed on his person steps into a vehicle that vehicle automatically facilitates the possession. As already noted, the supreme court stated that the key word in the forfeiture statute is “facilitate.” We hold that where, as here, the use of the vehicle was entirely incidental to the possession of the controlled substance, it did not make the possession “easier or less difficult” as required by the key word “facilitate” in the forfeiture statute. In this case, the claimant did not use the vehicle in any manner to make or try to make possession easier. Rather, the controlled substance was already secreted on his person, and the use of the vehicle did not in any manner “facilitate” this violation of the Act. This construction of the statute at issue accords with the general rule that forfeitures are not favored at law and statutes authorizing them must be strictly construed in favor of the property owner. People v. United States Currency $3,108 (1991), 219 Ill. App. 3d 441, 446.

Because we decide as a matter of statutory construction that the vehicle in this case did not “facilitate” a violation of the Act, we need not determine whether forfeiture under these circumstances would have resulted in an unconstitutional application of the statute. We do note, however, that claimant’s specific challenge that forfeiture may be prohibited by the double jeopardy clause has been rejected by the Dlinois Supreme Court under similar facts. (See People v. 1988 Mer cury Cougar (1992), 154 Ill. 2d 27.) We allowed claimant to cite Austin v. United States (1993), 509 U.S._, 125 L. Ed. 2d 488, 113 S. Ct. 2801, as additional authority, but our disposition of this case in this manner makes consideration of that case unnecessary.

The judgment of the circuit court of Kane County is affirmed.

Affirmed.

INGLIS, P.J., and WOODWARD, J., concur.


source: Caselaw Access Project

author: JUSTICE McLAREN

license: Public Domain

text:
    HARVARD STATE BANK, as Trustee, et al., Plaintiffs-Appellants, v. THE COUNTY OF McHENRY, Defendant-Appellee.
    Second District
    No. 2—93—0058
    Opinion filed September 27, 1993.

      Thomas W. Schmitt, of Marengo, for appellants.
    Gary W. Pack, State’s Attorney, of Woodstock (James G. Militello III, Assistant State’s Attorney, of counsel), for appellee.
   JUSTICE McLAREN

delivered the opinion of the court:

In February 1991, plaintiffs petitioned the County of McHenry for rezoning of their 64.5-acre property in unincorporated Coral Township, Illinois, from A-l (agricultural) to E-l (estates of one acre). A protest was filed by owners of adjacent properties. On June 18, 1991, the county board of McHenry, based on a finding by the McHenry County planning commission that the rezoning would be incompatible with surrounding land uses and inconsistent with McHenry County’s general land-use plan, voted to deny plaintiffs’ petition.

On July 10, 1992, plaintiffs filed a complaint for declaratory judgment and injunctive relief in the circuit court in McHenry County seeking to have the county’s zoning restriction declared unconstitutional as applied to their property. Following a bench trial, the court entered judgment for the county. Plaintiffs then brought this appeal. Because we find the circuit court’s ruling was not contrary to the manifest weight of evidence, we affirm.

Plaintiffs argue that the zoning ordinance as applied to their property is arbitrary, unreasonable and bears no substantial relation to the public health, safety, morals or welfare. The law governing the constitutionality of zoning ordinances is well settled in Illinois. (See La Salle National Bank v. County of Cook (1957), 12 Ill. 2d 40; Wilson v. County of McHenry (1981), 92 Ill. App. 3d 997.) A zoning ordinance is presumptively valid and will be held an unconstitutional exercise of police power only upon a showing that the ordinance bears no substantial relation to the general welfare. (Smeja v. County of Boone (1975), 34 Ill. App. 3d 628, 631.) The burden is on the party seeking the zoning change to show by clear and convincing evidence that the ordinance is unconstitutional. (Exchange National Bank v. County of Cook (1962), 25 Ill. 2d 434, 439-40.) On appeal, plaintiffs must demonstrate that the trial court’s ruling was against the manifest weight of evidence. Pioneer Trust & Savings Bank v. County of Cook (1978), 71 Ill. 2d 510, 516-17.

When determining whether a zoning ordinance is valid, Illinois courts balance a variety of factors to determine whether the zoning restriction is fair to the owner of the subject property, owners of surrounding properties, and the public.

Among the factors considered when making this determination are six that have been summarized in LaSalle National Bank and often repeated in later cases. These factors are: (1) the existing uses and zoning of nearby property; (2) the extent to which property values are diminished by particular zoning restrictions; (3) the extent to which the destruction of property values of plaintiffs’ land promotes the health, safety, morals or general welfare of the public; (4) the relative gain to the public as compared to the 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. (La Salle National Bank, 12 Ill. 2d at 46-47.) Two other factors often considered by Illinois courts include the community need for the use proposed by the plaintiff and the care with which the community has undertaken the planning of its development. (Sinclair Pipe Line Co. v. Village of Richton Park (1960), 19 Ill. 2d 370, 378.) Other cases state that determination of the highest and best use of a property is an important factor. See Rams-Head Co. v. City of Des Plaines (1956), 9 Ill. 2d 326, 331; People ex rel. Alco Deree Co. v. City of Chicago (1954), 2 Ill. 2d 350, 357-58.

No single factor is controlling (La Salle National Bank, 12 Ill. 2d at 47), and each case must be judged on its own facts (Schmidt v. City of Berwyn (1985), 134 Ill. App. 3d 36, 46). However, “[o]f paramount importance is the question of whether the subject property is zoned in conformity with surrounding existing uses and whether those uses are uniform and established.” La Grange State Bank v. County of Cook (1979), 75 Ill. 2d 301, 309.

Plaintiffs admit that the dominant use and zoning of properties in the immediate vicinity of their parcel is agricultural. However, plaintiffs argue, the character of the area is changing and other uses, primarily residential, have appeared in the area in recent years. It is also apparent from zoning and use maps of the area offered at trial that significant residential development has appeared in the area. While the mere existence of nonconforming uses in an area zoned for a particular purpose does not void restrictions to other similarly situated properties, the existence of such nonconforming uses should be considered in evaluating the total character of the area in question. La Salle National Bank v. City of Park Ridge (1979), 74 Ill. App. 3d 647, 659.

Plaintiffs note in their brief there are seven parcels zoned for residential development within a two-mile radius of their land and that these developments include 190 platted residential lots, 117 with homes and 73 vacant. Maps introduced at trial disclose that plaintiffs’ property is directly bounded on all sides by agricultural-zoned land that is either being farmed or is open space, designated as “natural areas.” A small section of plaintiffs’ land borders the east side of Harmony Hill Road, and the land directly across Harmony Hill Road to the west is also farmland. The closest residential subdivision to the plaintiffs’ land is the Raven Hills development, 5 houses and 36 vacant lots zoned E-l that face plaintiffs’ land directly across Harmony Hill Road at the southwest diagonal corner.

Seven of the nine platted subdivision parcels within a two-mile radius of plaintiffs’ land are located to the west of Harmony Hill Road. Only the two units of Marengo Ridge Estates, comprising 10 houses and 14 vacant lots, lie to the east of Harmony Hill Road. These units are about one mile north of plaintiffs’ land on the west side of Harmony Hill Road and are surrounded by or border the Marengo Ridge Golf Course. The homes are zoned E-l and R-l (half-acre residences).

To the southwest of Harmony Hill Road and within two miles of plaintiffs’ land are four subdivision units of Harmony Hills Estates. Ox Bow Woods lies about a mile to the northwest of plaintiffs’ land and is comprised of 21 houses and 1 vacant lot in two units zoned E-3 (for three-acre estates). There is an E-5 (five-acre) parcel south of Harmony Hills Estates on the west side of Harmony Hill Road at Riley Harmony Road.

At trial, real estate developer and broker James Sarko testified for plaintiffs that the trend of development along Harmony Hill Road and the general area surrounding it is residential. Sarko sold the land in question to plaintiffs and manages it for them. Sarko’s son, Roland E Sarko, a land-use planner who designed the Raven Hills community, testified for plaintiffs that E-l zoning would be consistent with existing uses because there are E-l parcels in the immediate vicinity.

Defendant countered with testimony from Joseph Abel, a land-use planning consultant and former director of planning for Du Page County who conducted a site survey of the area surrounding plaintiffs’ land. He concluded that a residential development on the site in question would pose a hardship to the agricultural community in the area by restricting use of heavy equipment and working hours because of noise, dust and inconvenience to residential neighbors. Abel said a new residential subdivision could set off a domino effect that would push farming out of the immediate vicinity. Abel also concluded that the highest and best use of the property is agricultural. He defined highest and best use as “that use which effectively utilizes a parcel of land and at the same time — and this is very important — is in harmony with the growth goals and planning policies of the community.”

An examination of the cases relied upon by the court in La Salle National Bank v. Comity of Cook in determining that current zoning and use should be a key factor to consider in zoning cases discloses that a restrictive zoning classification is most likely to be ruled invalid when an area in question has undergone a virtually complete change in character from its zoned purpose. (See Krom v. City of Elmhurst (1956), 8 Ill. 2d 104; Langguth v. Village of Mount Prospect (1955), 5 Ill. 2d 49.) In the present case, the area of plaintiffs’ land has not undergone such a complete change in character despite the presence of nearby residential development. Thus the LaSalle factor of current use and zoning of surrounding properties weighs in defendant’s favor.

There was no dispute at trial that plaintiffs’ property would have a higher value if rezoned E-l than it has currently. Plaintiffs purchased the land in question in October 1978 for $226,000, or $3,500 per acre. Plaintiffs’ witness James Sarko testified that the current market value of the land as zoned is $258,000, or $4,000 per acre. He said the parcel would be worth double that amount, or $516,000, if it were zoned E-l. In addition, he declared, if the properly were developed with 35 lots as proposed, the market value of the parcel, after subtracting the cost of building homes, would be $572,000.

Although relevant, diminution in value is not alone a sufficient reason to invalidate a restrictive zoning classification. (American National Bank & Trust Co. v. Village of Oak Lawn (1979), 81 Ill. App. 3d 952, 960.) Land owners seeking to invalidate a zoning restriction must show that their economic loss is not necessitated by the public welfare. Chicago Title & Trust Co. v. Village of Skokie (1978), 60 Ill. App. 3d 221, 234.

Philip Giancola, one of the plaintiffs in the present matter, testified that when he and his associates purchased the land in question, they knew it was zoned for agriculture and paid what the land was worth as farmland, not as residential land. He also stated that he and his associates bought the parcel as an investment hoping to develop it some day. Defendant points out correctly that the loss suffered by plaintiffs because of the agriculture zoning is a loss of expectation and not an actual out-of-pocket loss. Indeed, plaintiffs’ witness Richard Sarko testified that the parcel as zoned is currently worth $32,000 more than plaintiffs paid for it, even with its agricultural zoning.

Because plaintiffs purchased their land with full knowledge of its zoning, they “should not expect the loss in value from the proposed use compared to the current zoning to be persuasive.” (Glenview State Bank v. Village of Deerfield (1991), 213 Ill. App. 3d 747, 762.) Of course, the mere fact that plaintiffs were aware of the zoning for their land does not preclude them from challenging its validity. La Salle National Bank v. Village of Harwood Heights (1971), 2 Ill. App. 3d 1040, 1047.

A major point of contention at trial was whether the parcel in question is prime farmland whose preservation is in the public interest. McHenry County’s comprehensive land-use plan, adopted in November 1979, places a high priority on preserving prime farmland and declares that residential development should be channelled toward existing urban centers. The McHenry County land-use plan, year 2005 update (Update), which defendant introduced as an exhibit at trial, was approved by the county board in November 1985 and modified the 1979 plan. The Update contains the following:

“ — Prime farmland, beyond potential municipal service areas, is to be maintained.
***
—Areas not suitable for farming (i.e. steep slopes, wooded areas, or less productive soil types) may be used for rural residential development when it will not negatively affect the surrounding agriculture use.”

Thus, plaintiffs sought to characterize their land as not suitable for farming. Plaintiffs argued that their land contains no more than 30% prime farm soil. Defendant argued the land has 40% prime soil. The parties agreed that 45 of the 64.5 acres are tillable and that 13 acres are wetlands, completely unusable for farming.

Plaintiffs offered testimony from Jeffrey Grismer, who has farmed the land in question for about 10 years. He said he considered the property to be poor farmland. He estimated that the land has yielded an average of 120 bushels of com per acre over the last 10 years and that his other farmland in the area has yielded an average of 145 bushels during the same period. Grismer said that he currently pays rent of $2,500 per year, or about $55 per tillable acre, for use of the parcel in question. He said that “average” farmland rents for about $80 to $90 per acre and “good” farmland rents for $100 to $115 per acre.

Defendant countered with testimony from David Brandt, a district conservationist with the United States Department of Agriculture Soils Conservation Service, that the average yield per acre of com in McHenry County is between 110 and 120 bushels. Defendant maintains in its brief that the low rent paid by Grismer for the parcel in question “must be examined with skepticism” because the rental on the parcel “dropped in contemplation of the instant lawsuit.” Grismer testified that he paid $2,500 in rent for only the most recent year and had previously paid $3,000 per year since first farming the land 10 years ago.

In Smeja v. County of Boone (1975), 34 Ill. App. 3d 628, this court noted that preservation of farmland for the public good is not by itself a sufficient justification to prevent a zoning change for housing construction because “carried to its extreme [such a justification] would negate the development of rural property for residential purposes.” (Smeja, 34 Ill. App. 3d at 632.) However, in Wilson v. County of McHenry (1981), 92 Ill. App. 3d 997, we declared that “[t]he adoption of a comprehensive plan which incorporates valid zoning goals increases the likelihood that the zoning of a particular parcel in conformity therewith is not arbitrary or unrelated to the public interest. The courts in Illinois have increasingly accorded importance to the existence of a comprehensive plan in reviewing zoning cases.” (Wilson, 92 Ill. App. 3d at 1002.) McHenry County has such a comprehensive plan, and it declares that farming is an important basic component of the county’s economy. Indeed, this case arises in the same county and under the same land-use plan as in Wilson, in which we rejected plaintiffs’ claims (under facts similar to the present matter) that agricultural zoning was unconstitutional as applied to their land.

Smeja, Wilson, and a third case from the Appellate Court, Second District, Pettee v. County of De Kalb (1978), 60 Ill. App. 3d 304, all concerned attempts by property owners to have their agricultural land rezoned for residential use. Plaintiffs in Smeja and Pettee won their claims; plaintiffs in Wilson lost. For the following reasons, we believe that the present case is closer to the Wilson case.

In Smeja, we affirmed a trial court ruling invalidating agricultural zoning for a 50-acre parcel in Boone County. The evidence in Smeja showed that the parcel in question was virtually useless for farming. Fifteen acres of the parcel were considered submarginal for farming, and the remainder was a wooded area also unsuited to farming. It is also instructive to note that in Smeja there was significant support among county officials for the plaintiffs’ zoning change to residential. The board of appeals of Boone County, the planning, zoning and building committee of the Boone County county board, and a majority of the full county board approved the rezoning petition. However, the petition failed because the county board vote of six to four in favor fell short of the three-quarters approval required when a protest is filed by neighboring landowners, as it was in that case. “[F]or this reason only the request for rezoning was denied.” Smeja, 34 Ill. App. 3d at 630.

In Pettee, we struck down a zoning restriction that was held valid by the trial court. The parcel in Pettee was an 80-acre tract in De Kalb County surrounded by farmland. Evidence at trial showed that the land was 20% wetlands and that the tract was not being farmed. A farmer testified that the land could not be profitably farmed because it was too small and had too much wetland. The trial court ruled that, based on evidence proffered by defendant, the land could be profitably farmed if $30,000 worth of drainage work were undertaken by the owner. This court reversed and held that the agricultural zoning was unconstitutional because the gain to the public from maintaining such marginal farmland was small in comparison to the hardship the plaintiff would suffer to make his land profitable for farming.

In Wilson, two cases were consolidated, both involving farmland in McHenry County whose owners wanted to develop the land for homes. We affirmed the trial court ruling that the agricultural zoning for both tracts was valid. One of the tracts was a 76-acre parcel in Greenwood Township that included 65 tillable acres. The county claimed the land was 87% prime farmland; plaintiffs claimed it was only 65% prime. Plaintiffs also offered evidence that the land was not profitable for farming. The second tract contained 130 tillable acres in a 176-acre tract in Coral Township, where the land in the present case is located. Plaintiffs claimed the land was barely making money from farming and that about 45% of the land was prime. The county rated 90% of the land as prime.

The parcel in the present matter is similar in character to those in Wilson. First, of course, there is the geographic closeness. This case and Wilson arose in McHenry County and were decided in light of McHenry County’s land-use plan, which emphasizes maintenance of prime farmland. In addition, the parcels in Smeja and Pettee were not being used for their zoned purpose, farming, because the parcels in those cases were unsuited to their zoned purpose. In Wilson both parcels were being farmed, and we upheld the agricultural zoning in Wilson despite evidence that the farms were not profitable and a difference of opinion as to the true quality of the soil.

In the present matter, it was shown that only about 30% to 40% of the land was considered prime. However, mere percentages are not determinative. In Wilson, the 70-acre tract was considered at least 64% prime, but evidence showed that the land yielded an average of just 95 bushels of com per acre. The 176-acre tract in Wilson was rated at least 45% prime but yielded only 85 bushels of com per acre. The land in the present case is considered only 30% to 40% prime, yet it has been more productive than either plot in Wilson. Plaintiffs’ land has consistently yielded 120 bushels of com per acre over 10 years, which puts it at the high end of the countywide average of 110 to 120 bushels.

Whatever its true percentage of prime soil, it is clear that the land in the present matter is productive and thus is suited to its zoned purpose. Also, it is important to note that soil quality is but one of many factors that must be considered in cases involving agricultural zoning. Each ease must be determined on its unique set of factors. In the present matter, it was certainly not against the manifest weight of evidence for the trial court to find that the agricultural zoning for the land was valid, given the productivity of the land and the great importance McHenry County places on preservation of agricultural land.

Plaintiffs refer us to an unpublished memorandum opinion in the circuit court of McHenry County, First Bank of Oak Park v. County of McHenry (19th Jud. Cir. Feb. 28, 1986), No. 82 — MR—23, which held unconstitutional an agricultural zoning restriction for a parcel of land across from the parcel in the present case. That decision allowed plaintiffs to secure E-l zoning and develop what is now the Raven Hills development at the southwest edge of the land in the present matter. We note initially that a memorandum opinion of a trial court has no precedential force. See 134 Ill. 2d R. 23.

Additionally, the First Bank case is distinguishable from the present matter. In First Bank, the only evidence as to the quality of the soil was its soil map rating, which put the plot at 50% prime. There was also evidence that the land in First Bank was quite rocky and had a rolling terrain and wooded areas unsuited to farming. Perhaps most importantly, the First Bank land directly abuts another subdivision, Harmony Hills Estates, on the west side of Harmony Hill Road.

As to the question of the need in the area of the use proposed by the plaintiffs, there again was a difference of opinion. Plaintiffs’ expert James Sarko testified that there was a need for residential lots in the area because many people would want to be located near the Northwest Tollway, which runs less than two miles south of the parcel in question. Defendant noted that there were already 73 vacant lots in the area. Plaintiffs claimed that their proposed development would offer more affordable housing than is presently available.

The judgment order in the present matter contained a specific finding that “it is not clear from the evidence” whether the proposed use would accommodate wells and septic systems, and it was also not clear that the proposed development would not deplete the area water table.

Plaintiffs offered the testimony of Bruce J. Houghtby, a certified professional soil classifier and soil scientist, who performed a soil survey of the property in question to determine its ability to handle a septic system. Houghtby was of the opinion that, based on his drilling of nine core samples at the site, the property was suitable for septic. Houghtby admitted that he would have to take about 55 more samples to meet McHenry County’s specifications for new subdivisions. However, Houghtby was of the opinion that the additional samples would not change his findings that the overall tract was suitable for septic.

John Guillou, a hydraulics engineer, testified for defendant that the parcel was not suited to septic systems. Guillou based his findings on a survey of the land and review of the United States Soil Conservation Service map, but he conceded that he conducted no actual borings. He testified that he believed his findings would not change with a detailed investigation or actual samples.

As to water supply for the land, plaintiffs offered testimony of John M. Harkin, a professor of soil science at the University of Wisconsin, who declared that there was sufficient water to support the proposed development. Harkin took no site samples and admitted that he had “only scant knowledge of the hydrology of the area.” However, based on data maps of the area, he was convinced there would be an ample supply of groundwater to serve the proposed development. Defendant’s witness John Guillou testified that he did not believe it was possible to judge the availability of groundwater from just a review of data maps but that a test well would have to be drilled. Plaintiffs did not drill any such test wells. Without any test results, we determine the trial court findings in this regard are not against the manifest weight of the evidence.

The trial court also found that a road is a natural boundary between uses. This is relevant to determine whether it was arbitrary for McHenry County to deny a variance to plaintiffs when other owners had been granted such variances. The boundary in question is Harmony Hill Road, and evidence at trial showed that most of the platted residential development within a two-mile radius of the property in question lies to the west of the road. The property in question lies to the east. There are several individual residential lots located east of Harmony Hill, but all of the platted subdivisions lie to the west of the road, except for Marengo Ridge Estates.

McHenry County has not actually zoned the area west of Harmony Hill Road for housing, but its general use plan notes that future development should be concentrated in areas that “fill in” between other developments. Thus, it appears that a residential district based on variances has been established directly west and south of the subject property. We note that zoning boundaries are by their nature somewhat arbitrary because they “must begin and end somewhere, and if the most that can be said is that the drawing of the line between permitted uses presents a fairly debatable question, the determination of the legislative body will be upheld.” (Hedrich v. Kane County (1969), 117 Ill. App. 2d 169, 174.) The suitability of Harmony Hill Road as a boundary between agricultural and residential uses is a fairly debatable question.

Defendant cites Glenview State Bank v. Village of Deerfield (1991), 213 Ill. App. 3d 747, 761, for the proposition that streets are reasonable lines of demarcation between residential and other uses. This proposition derives from Suhadolnik v. City of Springfield (1989), 184 Ill. App. 3d 155, 175-76. While these cases did not involve rural or agricultural areas, we believe they apply in this case.

In Krom v. City of Elmhurst (1956), 8 Ill. 2d 104, the Illinois Supreme Court noted that “dividing lines of districts should be fixed in such a maimer as to avoid making one side of a main artery of travel purely residential when the opposite side is already used as a business zone.” (Krom, 8 Ill. 2d at 111.) However, the court added, “a main artery of travel may, in some instances, constitute so natural and proper a dividing line between commercial and residence zones as to cause the property on one side of the highway to take its character from the residential district it adjoins rather than the commercial zone it faces.” (Krom, 8 Ill. 2d at 111.) The court in Krom made the distinction between cases involving zoning of busy intersections with extensive commercial development, which the court agreed should not be zoned so that one side is wholly residential and the other is commercial, and cases involving newer communities that are just beginning to fill in with homes and businesses, wherein it may be proper to allow one side to be residential and the other side commercial.

In making this distinction, the court in Krom compared Mundelein Estates, Inc. v. Village of Mundelein (1951), 409 Ill. 291, and Forbes v. Hubbard (1932), 348 Ill. 166, overruled by La Salle National Bank v. City of Evanston (1974), 57 Ill. 2d 415, 432-33. Forbes involved an attempt by the owner of a residential-zoned lot to have his land rezoned for commercial use. The parcel was located at the comer of Harlem Avenue and Chicago Avenue in River Forest, a district that had a great deal of traffic and much commercial development already in place. Evidence showed that the parcel in question was unsuited to its continued use as a residential lot. Mundelein Estates, however, concerned an attempt by the owner of a residential-zoned lot to have his land rezoned for commercial use in an area that was not fully developed. At the time of the rezoning request, the Village of Mundelein had a large amount of undeveloped land, and officials zoned the town in such a way as to restrict residential development to one side of a street that included plaintiffs’ land.

The underlying question in both cases, as in all zoning cases, was whether the continued residential zoning was unreasonable. In Forbes it was unreasonable; the residential zoning had outlived its usefulness because many commercial establishments had encroached and made the area unsuited for homes. In Mundelein Estates, the residential zoning was reasonable because no serious encroachment had occurred. The town was just beginning to grow, and the zoning lines served the useful purpose of directing that growth. The present matter is clearly more like the Mundelein Estates situation. McHenry County has undertaken an effort to direct its just-emerging growth, and that strategy is reasonable.

In summary, the trial court had ample basis for its ruling that plaintiffs failed to show by clear and convincing evidence that the zoning ordinance in question was invalid as applied to their land. There was a credible difference of opinion as to whether the agricultural zoning was of sufficient public interest to warrant depriving plaintiffs of the more lucrative residential zoning. We note again that “[w]here the most that can be said is that the reasonableness of the ordinance is fairly debatable, the decision of the municipal authorities must be upheld, and the trial court is not justified in substituting its judgment for that of the municipal authorities. *** [I]t is for the court to determine whether those differences [of opinion] are reasonable and justifiable.” (Schmidt v. City of Berwyn (1985), 134 Ill. App. 3d 36, 46.) Here, the differences were reasonable and justifiable; thus, the trial court properly deferred to the judgment of the county board. The trial court’s ruling certainly was not against the manifest weight of evidence, which is our standard of review on appeal.

The judgment of the circuit court of McHenry County is affirmed.

Affirmed.

WOODWARD and BOWMAN, JJ., concur.


author: JUSTICE WOODWARD

text:
    ARENA AUTO AUCTION, INC., Plaintiff-Appellant, v. MECUM’S COUNTRYSIDE MOTOR COMPANY, INC., et al., Defendants (Amcore Bank N.A., Rockford, Defendant-Appellee).
    Second District
    No. 2—92—0514
    Opinion filed September 23, 1993.
    Robert K. Slattery, of Freeport, and Gary Hollander, of Bixby, Lechner & Potratz, P.C., of Chicago, for appellant.
    Craig A. Wilette, of Ritz, Shair & Wilette, and Pamela S. Fox, of Maggio & Fox, P.C., both of Rockford, for appellee.
   JUSTICE WOODWARD

delivered the opinion of the court:

Plaintiff, Arena Auto Auction, Inc. (Arena), appeals from an order in which the trial court held that defendant Amcore Bank’s (Am-core’s) security interest in certain automobiles was superior to Arena’s, and, therefore, Amcore was entitled to approximately $126,197.76 held in escrow. On appeal, Arena raises two arguments: (1) whether Amcore’s security interest attached to the subject vehicles and (2) whether Arena properly filed its financing statement.

Arena is a corporation which conducts the sale of motor vehicles at auctions. Its principal place of business is in Bolingbrook, Illinois. Defendant Amcore is a national banking association located in Rockford, Illinois. Defendant Mecum’s Countryside Motor Company, Inc. (Mecum’s), which is not a party in this appeal, is a corporation which operates used car lots in Loves Park, Illinois, and Roscoe, Illinois. Defendants Edward L. Mecum, Sr., Edward L. Mecum, Jr., and Dana Mecum, who are also not parties in this appeal, are officers of Me-cum’s.

On January 12, 1989, Mecum’s executed a loan agreement and promissory note in the face amount of $750,000 in favor of Amcore. Mecum’s also executed a security agreement and financing statement in favor of Amcore to secure the promissory note in the amount of $750,000, which pledged Mecum’s vehicle inventory as security for the debt. Amcore properly perfected its security interest in the vehicle inventory on January 20, 1989, by filing with the Illinois Secretary of State’s office financing statement No. 2525170, which covered Me-cum’s vehicle inventory.

On March 22, 1989, Mecum’s provided a dealer information sheet to Arena in order to trade vehicles at the latter’s auction. The corporate name of Mecum’s was incorrectly listed on the dealer information sheet as “Mecum’s Countryside Motor, Inc.,” rather than in its correct corporate name of “Mecum’s Countryside Motor Company, Inc.”

On the same date, Mecum’s executed a dealer registration agreement (Agreement) with Arena under the name of “Mecum’s Countryside Motor.” Dealers were required to sign the Agreement before they could trade vehicles at the Arena auction. The Agreement sets forth the terms and conditions under which dealers were to obtain motor vehicles through the Arena auction. Paragraph 8(d) provides that both the title and ownership of vehicles which Mecum’s obtained through the auction would remain in the seller of the vehicles until payment in full had been made.

Thereafter, Mecum’s began to acquire vehicles through Arena pursuant to the terms and conditions of the Agreement. In January 1991, Arena and Mecum’s were contemplating an increase in the latter’s line of credit. At that time, Arena presented two requests for information (Uniform Commercial Code form 11.7) to the Secretary of State’s office. One of the requests involved Edward L. Mecum, Sr. The other request listed the name “Mecum’s Countryside Motor, Inc.,” the above-cited corporate name provided in the dealer information sheet. The Secretary of State’s office advised Arena that as of December 7, 1990, there were no prior security interests recorded against Mecum’s.

On January 15, 1991, Mecum’s executed a security agreement and financing statement in favor of Arena, which pledged the motor vehicles obtained from Arena as security for its debt. Arena recorded its financing statement on January 28, 1991, with the Secretary of State’s office. On or about October 1, 1991, Mecum’s acquired 93 vehicles from Arena without making any payment towards the vehicles. As of December 13, 1991, Mecum’s had sold 53 of these vehicles to the public.

On December 12, 1991, Arena filed a complaint for injunction, imposition of trust and other relief against Mecum’s, Edward L. Mecum, Sr., Edward L. Mecum, Jr., and Dana E. Mecum. On that same date, Arena also obtained a temporary restraining order prohibiting Me-cum’s from selling the remaining vehicles purchased from Arena.

By agreement, Amcore was added as a defendant on December 20, 1991. As part of its answer to the amended complaint for injunction, imposition of trust and other relief, Amcore filed a counterclaim against Arena stating that it had a valid prior and senior perfected lien in Mecum’s vehicle inventory. Also, by agreement, the court entered an order providing that the remaining Mecum’s vehicles be sold and the proceeds placed in escrow at Amcore. The amount realized from the sale of the remaining inventory was $126,197.76.

On February 21, 1992, the trial court held a hearing to determine whether Amcore or Arena was entitled to the proceeds held in escrow. In a hearing held on March 23, 1993, the trial court stated its decision thusly:

“Getting to the crux of it, the Arena Auction — Auto Auction never gave notice to the bank pursuant to 9 — 312 and especially 9 — 312(e) Uniform Commercial Code their claimed lien on the property and they never — they didn’t file a proper security document either. But primarily they didn’t notify the bank within the twenty days of preferred time that they could have.
What it comes down to then deciding the lien rights between the two parties, the Court finds that the bank has a valid prior and senior lien to the Auction. And therefore the $125,000 [sic] in escrow belongs to the bank.”

The trial court’s finding was reflected in an order entered on April 1,1992. This timely appeal followed.

Arena first argues that Mecum’s did not hold a sufficient interest in the Arena vehicles for Amcore’s security interest to attach to same. Specifically, Arena maintains that Arena and Mecum’s did not intend that Mecum’s would acquire ownership of Arena’s vehicles until payment had been made and that Arena retained titles to all of the Arena vehicles.

In response, Amcore contends that Arena’s title retention is immaterial for purposes of determining ownership or rights in vehicle inventory. We agree. A security interest in a motor vehicle is ordinarily perfected according to the provisions of the Illinois Vehicle Code (Vehicle Code) (Ill. Rev. Stat. 1989, ch. 951/2, par. 1 — 100 et seq.). Section 3 — 201 of the Vehicle Code contains specific exception for security interests in vehicle inventory of the type involved in the instant case. (See, e.g., Central National Bank v. Worden-Martin, Inc. (1980), 90 Ill. App. 3d 601, 602.) Section 3 — 201 of the Vehicle Code provides:

“Excepted liens and security interests. This Article does not apply to or affect:
* * *
(c) A security interest in a vehicle created by a manufacturer or dealer who holds the vehicle for sale, but a buyer in the ordinary course of trade from the manufacturer or dealer takes free of the security interest.” Ill. Rev. Stat. 1989, ch. 95V2, par. 3-201(c).

In the Uniform Commercial Code (Code), a “[security interest” is defined as:

“[A]n interest in personal property or fixtures which secures payment or performance of an obligation. The retention or reservation of title by a seller of goods *** is limited in effect to a reservation of a ‘security interest’.” (Ill. Rev. Stat. 1989, ch. 26, par. 1-201(37).)

Furthermore, section 9 — 202 of the Code provides:

“Title to Collateral Immaterial. Each provision of this Article with regard to rights, obligations and remedies applies whether title to collateral is in the secured party or in the debtor.” (Ill. Rev. Stat. 1989, ch. 26, par. 9 — 202.)

Again, in section 2 — 401(1), the Code specifically states that “[a]ny retention or reservation by the seller of the title *** in goods *** is limited in effect to a reservation of a security interest.” Ill. Rev. Stat. 1989, ch. 26, par. 2 — 401(1).

Given this statutory language, there is little doubt that Arena’s retention of title to the subject vehicles has no effect upon determining which party could claim the funds held in escrow. In so finding, we have considered the authority cited by Arena and have determined that it is irrelevant to this issue.

As a subargument of this initial argument, Arena maintains that, because Amcore was not engaged in dealer-floor-plan financing, it would have had to perfect its interest in accordance with the Vehicle Code. Arena then contends that because Amcore did not do this it did not have any security interest in the subject vehicles.

As Amcore points out, there is no language in the relevant statutes which limits the exemptions from the Vehicle Code’s provisions to situations involving dealer floor financing. Indeed, Arena has cited no case law in support of its argument. We find no reason to follow Arena’s very narrow reading of when the exemption from the Vehicle Code is permitted.

Finally, Arena contends that it substantially complied with the Code’s filing requirements. Amcore argues that Arena failed to follow the necessary steps required by the Code and, consequently, Arena’s security interest in the subject funds is secondary to Amcore’s.

Pursuant to section 9 — 309 of the Code (Ill. Rev. Stat. 1989, ch. 26, par. 9 — 309), Amcore perfected its security interest in Mecum’s vehicle inventory by filing a financing statement with the Illinois Secretary of State’s office on January 20, 1989. Thus, we find that Amcore complied with the relevant Code requirements.

Arena filed its financing statement on January 28, 1991, fully two years after Amcore’s filing. Under these circumstances, the only way Arena’s security interest could have achieved priority over Amcore’s would have been for Arena to perfect a purchase money security interest pursuant to section 9 — 312(3) of the Code. This section provides:

“A perfected purchase money security interest in inventory has priority over a conflicting security interest in the same inventory and also has priority in identifiable cash proceeds on or before the delivery of the inventory to a buyer ***.” (Ill. Rev. Stat. 1989, ch. 26, par. 9 — 312(3).)

To take advantage of this provision, Arena was required to give Am-core written notice of its filing within 21 days as required by section 9-312(3). (Ill. Rev. Stat. 1989, ch. 26, par. 9-312(3).) Arena failed to provide Amcore with the requisite notice.

Arena implies that its failure to provide such notice was due to Mecum’s not putting its proper corporate name on the dealer information sheet. Without Mecum’s actual corporate name, Arena was unable to determine Amcore’s security interest in the subject vehicles. This attempt to explain Arena’s failure to give requisite notice is undercut by a letter in the record from Arena’s treasurer, James Buzzell, to Edward Mecum dated December 21, 1990, more than one month before Arena filed its financing statement. The letter is addressed to “MECUM’S COUNTRYSIDE MOTOR COMPANY, INC.,” which is Mecum’s corporate name. Obviously, Arena was aware of Me-cum’s actual corporate name, prior to its submission of requests for information to the Secretary of State’s office in January 1991. Its failure to turn up Amcore’s security interest in the subject vehicles was the result of a lax investigation, not misinformation.

Section 9 — 312(5)(a) of the Code provides that, when a purchase money security interest is not properly perfected, as in the case here, conflicting security interests in the same inventory are ranked in priority according to the time of filing or perfection. (Ill. Rev. Stat. 1989, ch. 26, par. 9 — 312(5Xa).) Having perfected its security interest on January 20, 1989, more than two years before Arena’s January 28, 1991, filing, Amcore has priority to the subject funds. Accordingly, the trial court properly determined that Amcore’s security interest was superior to Arena’s. Its award of the funds in escrow to Amcore was correct.

For reasons stated above, we affirm the judgment of the circuit court.

Affirmed.

UNVERZAGT and QUETSCH, JJ., concur.


author: JUSTICE COLWELL

text:
      In re C.R.H., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. C.R.H., Respondent-Appellant).
    Second District
    No. 2—91—1419
    Opinion filed September 23, 1993.
    G. Joseph Weller, Paul J. Glaser, and Kathleen J. Hamill, all of State Appellate Defender’s Office, of Elgin, for appellant.
    Paul A. Logli, State’s Attorney, of Rockford (William L. Browers and Marshall M. Stevens, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE COLWELL

delivered the opinion of the court:

Respondent, C.R.H., appeals from the orders of the circuit court of Winnebago County adjudicating him a delinquent minor and committing him to the Department of Corrections. Respondent contends that, because his mother was not properly notified of the juvenile proceedings, the trial court was deprived of jurisdiction and its orders are void. We reverse.

On October 11, 1991, the State filed a supplemental petition for an adjudication of delinquency pursuant to section 5 — 3 of the Juvenile Court Act of 1987 (Act) (Ill. Rev. Stat. 1991, ch. 37, par. 805 — 3 (now 705 ILCS 405/5 — 3 (West 1992))). The petition alleged that on October 9, 1991, respondent committed the offenses of home invasion (Ill. Rev. Stat. 1991, ch. 38, par. 12 — 11 (now 720 ILCS 5/12 — 11 (West 1992))), residential burglary (Ill. Rev. Stat. 1991, ch. 38, par. 19 — 3 (now 720 ILCS 5/19 — 3 (West 1992))), drinking as a minor (Ill. Rev. Stat. 1991, ch. 43, par. 134a (now 235 ILCS 5/6 — 20 (West 1992))), and battery (Ill. Rev. Stat. 1991, ch. 38, par. 12 — 3(aXl) (now 720 ILCS 5/12 — 3(aXl) (West 1992))). The petition requested that an arraignment be held on October 11 and listed, under names and residences of the minor’s parents, respondent’s mother, along with her address, and respondent’s father, “address unknown.”

Respondent had a two-year history of dealings with the juvenile court when the supplemental petition was filed. Having admitted to a petition to adjudicate him a delinquent minor at age 13, respondent began an alternating sequence of probations and detentions, interspersed with drug and alcohol assessments and treatments. Respondent’s mother attended most of the earlier proceedings held against respondent in juvenile court. His father, whose whereabouts were unknown to both respondent and his mother, failed twice to respond to notices by publication, causing the court to enter default orders against him.

At the arraignment and detention hearing on October 11, 1991, the judge inquired as to the whereabouts of respondent’s parents and the parents of a cominor, similarly charged. The prosecutor stated that “[t]hey have attempted to notify the parents.” Respondent’s juvenile probation officer told the judge, “I talked with the minor’s mother this morning. She said she could not make it.” Another probation officer made a similar representation regarding the absence of the cominor’s parents. The judge then said, “I will order summons to issue for the respondents, respondent parents or stepparents.” After hearing testimony, the court ordered that respondent be kept in detention pending the outcome of the proceedings on the petition.

On October 23, the State filed an amended supplemental petition that repeated the allegations made in the first petition and added charges of criminal trespass to residence (Ill. Rev. Stat. 1991, ch. 38, par. 19 — 4 (now 720 ILCS 5/19 — 4 (West 1992))), criminal damage to property (Ill. Rev. Stat. 1991, ch. 38, par. 21 — 1(lXa) (now 720 ILCS 5/21 — 1(l)(a) (West 1992))), and theft (Ill. Rev. Stat. 1991, ch. 38, par. 16 — l(aXlXA) (now 720 ILCS 5/16-l(aXlXA) (West 1992))). Respondent’s parents’ names and mother’s address were listed. The record includes a summons addressed to Mrs. H., dated October 18, 1991, informing her that a hearing would be held on the cause on October 23. On the reverse side of the summons is stapled a short document in affidavit form, dated October 21 and signed by a Winnebago County deputy sheriff, stating that the summons was not served on Mrs. H. because, “[e]xpired/not enough time to serve.” The record does not indicate that respondent’s mother or father was present at the hearing held on October 23, at which time a new attorney was appointed to represent respondent.

The judge explained the new charges to respondent at an arraignment held on October 30. Neither respondent’s parents nor his attorney was present. The judge entered a denial on respondent’s behalf and scheduled the cause for trial.

An adjudicatory hearing was held on November 4, 1991. The record contains no indication that either of respondent’s parents was present or that they were notified of the hearing. The court adjudicated respondent delinquent after finding that he had committed home invasion, residential burglary, drinking as a minor, battery, and criminal damage to property.

A dispositional hearing, first set for November 19, 1991, was held on November 20. Again, the record indicates that neither parent was present and that no notice of either dispositional hearing date was sent to them. Respondent was committed to the Department of Corrections for an indeterminate term.

Respondent claims on appeal that the failure to give proper notice to his mother of the proceedings begun in October 1991 violated both respondent’s and his mother’s right to due process of law and rendered the lower court without jurisdiction to hold adjudicatory and. dispositional proceedings. Therefore, respondent maintains, the lower court’s adjudicatory and dispositional orders in this case are void. The State argues in response that respondent’s objection to the court’s jurisdiction on the ground of lack of service to his mother is waived. The State’s sole basis for this assertion is an amendment to the Act, section 1 — 15(b) (Ill. Rev. Stat. 1991, ch. 37, par. 801 — 15(b) (now 705 ILCS 405/1 — 15(b) (West 1992))). According to the State, section 1— 15(b), which became effective July 1, 1990, supersedes previous law on the subject of notice to juveniles.

The Act requires that a petition to adjudicate a minor delinquent name the minor’s parents, legal guardian, or persons having custody of the minor (Ill. Rev. Stat. 1991, ch. 37, par. 805 — 13(2) (now 705 ILCS 405/5 — 13(2) (West 1992))) and that a summons with a copy of the petition attached be served on the persons so named (Ill. Rev. Stat. 1991, ch. 37, par. 805-15(1) (now 705 ILCS 405/5-15(1) (West 1992))). Thus, the legislature, at least before the addition of section 1 — 15(b), determined that parents are necessary respondents who must be named and served with notice in order for the trial court to conduct an adjudicatory hearing. People v. R.S. (1984), 104 Ill. 2d 1, 6; In re E.D. Mc. (1991), 216 Ill. App. 3d 896, 898.

Effective July 1, 1990, the General Assembly amended the notice provisions of the Act as follows:

“A party respondent who either has been properly served, or who appears before the court personally or by counsel at the adjudicatory hearing or at any earlier proceeding on a petition for wardship under this Act leading to that adjudicatory hearing, and who wishes to object to the court’s jurisdiction on the ground that some necessary party either has not been served or has not been properly served must raise that claim before the start of the adjudicatory hearing conducted under any Article of this Act. No order or judgment is void because of a claim of inadequate service unless that claim is raised in accordance with this Section.” Ill. Rev. Stat. 1989, ch. 37, par. 801 — 14(b) (amended to Ill. Rev. Stat. 1991, ch. 37, par. 801 — 15(b) (see Pub. Act 86 — 1475, eff. January 10, 1991)) (now 705 ILCS 405/ 1 — 15(b) (West 1992)).

No cases decided under the new provision have been cited by either party. Since it appears that we are the first court to review its application, we will examine section 1 — 15(b) under the rules of statutory construction.

When interpreting a statute, courts must give the language of the statute its plain and ordinary meaning and should look first to the statutory language as the best indication of the intent of the drafters. (Williams v. Illinois State Scholarship Comm’n (1990), 139 Ill. 2d 24, 50-51.) The amendment’s wording is straightforward. “A party respondent *** who wishes to object to the court’s jurisdiction on the ground that some necessary party either has not been served or has not been properly served must raise that claim before the start of the adjudicatory hearing.” (Ill. Rev. Stat. 1991, ch. 37, par. 801 — 15(b) (now 705 ILCS 405/1 — 15(b) (West 1992)).) The plain language of section 1 — 15(b) indicates to us a legislative intent to place the ultimate responsibility for notifying necessary parties of an adjudicatory hearing on the party respondent.

The Act does not define “party respondent.” As used elsewhere in the Act, the term refers to the minor who is the subject of the proceeding and also to his parents, guardian, legal guardian, responsible relative, or other person named as a respondent in the petition. See Ill. Rev. Stat. 1991, ch. 37, par. 801 — 5(1) (now codified, as amended, at 705 ILCS 405/1-5(1) (West 1992)); Ill. Rev. Stat. 1991, ch. 37, par. 805-15(1) (now 705 ILCS 405/5-15(1) (West 1992)).

In the instant case, respondent and both of his parents are named in the petition. Respondent’s father was previously declared in default following the court’s attempts to notify him through publication, and lack of notice to him is not an issue on appeal. Therefore, the potential party respondents in this case are respondent and respondent’s mother.

The State contends that respondent alone is the party respondent targeted by the amendment, because he had notice of the adjudicatory hearing and because applying the section to his mother would produce an absurd result: if she wished to timely object to lack of notice on herself, she first would have to be properly served. The amendment addresses only party respondents who have been properly served or who make an appearance at the adjudicatory hearing or earlier proceedings leading to that hearing. Respondent’s mother was neither properly served nor present, personally or by counsel, at the proceedings beginning on October 11 that led to the adjudicatory hearing. Therefore, we agree with the State that the minor is the party respondent contemplated under section 1 — 15(b) in this instance.

Under the unamended Act, this court determined that notice to parents is essential to a juvenile court’s jurisdiction. (See In re E.D. Mc. (1991), 216 Ill. App. 3d 896, 898.) Section 1 — 15(b) confronts us with the proposition that notice to parents is waivable by the minor respondent.

An amendment is presumed to have been made for a purpose. (In re Marriage of Freeman (1985), 106 Ill. 2d 290, 298; People v. Richardson (1984), 104 Ill. 2d 8, 16.) It is possible, as the State posits, that the legislature’s purpose in effecting this change was to prevent a party respondent from benefitting on appeal from procedural lapses. However, a statute must be read as a whole (Castaneda v. Illinois Human Rights Comm’n (1989), 132 Ill. 2d 304, 318), and all relevant parts considered (Beierman v. Edwards (1990), 193 Ill. App. 3d 968, 979). Whatever the evil to be remedied by this amendment, we find that it conflicts with other provisions of the Act, the constitutionality of which has been firmly established.

Section 1 — 5 of the Act sets forth the rights of parties to juvenile proceedings. With certain discretionary exceptions,

“the minor who is the subject of the proceeding and his parents, guardian, legal custodian or responsible relative who are parties respondent have the right to be present, to be heard, to present evidence material to the proceedings, to cross-examine witnesses, [and] to examine pertinent court files and records ***
* * *
(3) Parties respondent are entitled to notice in compliance with Sections 2 — 15 and 2 — 16, 3 — 17 and 3 — 18, 4 — 14 and 4— 15 or 5 — 15 and 5 — 16, as appropriate.” (Ill. Rev. Stat. 1991, ch. 37, pars. 801-5(1), (3) (now 705 ILCS 405/1-5(1), (3) (West 1992)).)

Sections 5 — 15 and 5 — 16, which apply to delinquent minors, delineate the Act’s requirements for the issuance and the service of summons and for notice by publication. Most pertinently, section 5 — 15 provides:

“When a petition is filed, the clerk of the court shall issue a summons with a copy of the petition attached. The summons shall be directed to the minor’s legal guardian or custodian and to each person named as a respondent in the petition [except, under certain circumstances, a minor respondent under 8 years of age].” (Ill. Rev. Stat. 1991, ch. 37, par. 805 — 15(1) (now 705 ILCS 405/5-15(1) (West 1992)).)

The petition “shall allege that the minor is delinquent and set forth *** facts sufficient” to establish that the minor violated or attempted to violate a Federal or State law or a municipal ordinance (see Ill. Rev. Stat. 1991, ch. 37, pars. 805-13(2), 805-1, 805-3(1) (now 705 ILCS 405/5-13(2), 405/5-1, 405/5-3(1) (West 1992))).

The Act’s notice provisions before the addition of section 1 — 15(b) fully comported with Federal and State constitutional law.

The due process clause requires at a minimum “ ‘that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the case.' ” (Goss v. Lopez (1975), 419 U.S. 565, 579, 42 L. Ed. 2d 725, 737, 95 S. Ct. 729, 738, quoting Mullane v. Central Hanover Trust Co. (1950), 339 U.S. 306, 313, 94 L. Ed. 865, 873, 70 S. Ct. 652, 657.) The fundamental requisite of due process of law, the opportunity to be heard, would be a right that “ ‘has little reality or worth unless one is informed that the matter is pending and can choose for himself whether to ... contest.’ ” (Goss, 419 U.S. at 565, 42 L. Ed. 2d at 737, 95 S. Ct. at 738, quoting Mullane, 339 U.S. 306 at 314, 94 L. Ed. at 873, 70 S. Ct. at 657.) “ ‘Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified.’ ” Goss, 419 U.S. at 579, 42 L. Ed. 2d at 737, 95 S. Ct. at 738, qaotmg Baldwin v. Hale (1864), 68 U.S. 223, 233, 17 L. Ed. 531, 534.

Although a juvenile proceeding retains certain adversary characteristics, it is not an adversary proceeding in the usual sense but is one to be administered in a spirit of humane concern for the minor, to promote his welfare, and to serve the best interests of the community. (In re Beasley (1977), 66 Ill. 2d 385, 389; see also In re M.D.B. (1984), 121 Ill. App. 3d 77, 83 (delinquency proceedings are protective, not penal in nature; the purpose of the Act is not to punish but to correct and rehabilitate).) A juvenile proceeding is not criminal in nature; however, certain constitutional due process safeguards normally associated with criminal proceedings have been extended for the protection of juveniles to accord to them fundamental fairness. Beasley, 66 Ill. 2d at 390.

In a landmark case, the United States Supreme Court established that the basic requirements of due process and fairness must be satisfied in juvenile court proceedings (In re Application of Gault (1967), 387 U.S. 1, 30-31, 18 L. Ed. 2d 527, 548, 87 S. Ct. 1428, 1445) and, further, that due process in a juvenile proceeding requires adequate notice to a minor and his parents. (Gault, 387 U.S. at 33, 18 L. Ed. 2d at 549, 87 S. Ct. at 1446-47.) Specifically, the Gault Court stated that due process requires that a minor and his parents or guardian be notified, in writing, of the specific charge or factual allegations to be considered at an adjudicatory hearing on delinquency and that such written notice be given at the earliest practicable time, and in any event sufficiently in advance of the hearing to permit preparation. (Gault, 387 U.S. at 33, 18 L. Ed. 2d at 549, 87 S. Ct. at 1446.) The Court further held that neither “knowledge” of the charge by one of the parents nor an asserted failure to object on this ground would excuse the lack of constitutionally adequate notice. Gault, 387 U.S. at 34 n.54,18 L. Ed. 2d at 550 n.54, 87 S. Ct. at 1447 n.54.

Our supreme court has affirmed that due process of law requires that notice in juvenile proceedings be equivalent to that constitutionally required in criminal or civil cases (People v. R.D.S. (1983), 94 Ill. 2d 77, 81) and that adequate notice to both the minor and his parents is a requirement of due process (In re J.P.J. (1985), 109 Ill. 2d 129, 135).

We interpret the Federal and State case law to mean that inadequate service to the parents, who are necessary parties, violates the minor’s right to due process as well as that of the parents. Notice to parents may be viewed as a right that is shared by both the minor and his parents. Therefore, we find that, notwithstanding the dictates of section 1 — 15(b), the right to due process of both respondent and his mother was violated by the failure to give proper notice to respondent’s mother.

We believe section 1 — 15(b) is constitutionally suspect for a further reason: the new provision qualifies the due process right to notice by mandating waiver if objection to lack of service or inadequate service is not timely made. Waiver of a constitutional right is valid only if it is clearly established that there was “an intentional relinquishment or abandonment of a known right.” (Johnson v. Zerbst (1938), 304 U.S. 458, 464, 82 L. Ed. 1461, 1466, 58 S. Ct. 1019, 1023.) “Waivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.” Brady v. United States (1970), 397 U.S. 742, 748, 25 L. Ed. 2d 747, 756, 90 S. Ct. 1463, 1469; People v. Johnson (1979), 75 Ill. 2d 180, 187.

Moreover, special care must be taken when determining the voluntariness of a minor’s waiver of rights. (Gault, 387 U.S. at 55, 18 L. Ed. 2d at 561, 87 S. Ct. at 1458; People v. Simmons (1975), 60 Ill. 2d 173, 179-81.) Although this court has held that a juvenile’s waiver of constitutional rights is not rendered ineffective by the absence of his parents or guardian, we stated that good practice provides that it is preferable, whenever possible, to be sure that a parent or guardian is present when a juvenile waives his rights. In re Stiff (1975), 32 Ill. App. 3d 971, 978; In re Bertrand (1978), 65 Ill. App. 3d 703, 705.

Contrary to established constitutional principle, the new amendment permits waiver of a constitutional right with no inquiry whatsoever into a party’s capacity or intention to waive his right.

Finally, we believe the amendment is constitutionally unsound in that it places an unwarranted restriction upon a reviewing court’s prerogative to consider the issue of inadequate notice. Section 1— 15(b) states that no order or judgment is void because of a claim of inadequate service unless that claim is raised before the start of the adjudicatory hearing. Although an issue not raised below is generally waived on appeal (134 Ill. 2d R. 341(e)(7)), our supreme court has long held that the rule of waiver states an admonition to the parties and not a limitation on the jurisdiction of reviewing courts. (Hux v. Raben (1967), 38 Ill. 2d 223, 225.) It is well established that a reviewing court may, in the furtherance of its responsibility to provide a just result, override considerations of waiver and consider a point either not raised or not argued by an appellant. (In re Marriage of Sutton (1990), 136 Ill. 2d 441, 446; Welch v. Johnson (1992), 147 Ill. 2d 40, 48.) Under section 1 — 15(b), a reviewing court’s ability to reach the notice issue is statutorily constrained. We believe that such a restriction on a discretionary function of the reviewing court oversteps the constitutional line separating governmental powers.

For the foregoing reasons, we find that section 1 — 15(b) infringes upon a parent’s constitutional right to receive adequate notice of a juvenile proceeding involving a minor child. Because' notice to respondent’s mother was constitutionally required, we hold that jurisdiction was improperly assumed by the Winnebago County circuit court and reverse the orders adjudicating respondent a delinquent minor and committing him to the Department of Corrections for an indeterminate term.

Reversed.

BOWMAN and QUETSCH, JJ., concur.


text:
    H W K, INC., et al., Plaintiffs-Appellants, v. THE COUNTY OF KENDALL, Defendant-Appellee.
    Second District
    No. 2—92—1134
    Opinion filed September 23, 1993.

      Daniel J. Kramer, of Law Office of Daniel J. Kramer, of Yorkville, for appellants.
    Dallas C. Ingemunson, State’s Attorney, of Yorkville (William L. Browers and Marshall M. Stevens, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for appellee.
   JUSTICE COLWELL

delivered the opinion of the court:

Plaintiffs, HWK, Inc., and others, filed a three-count complaint, sounding in mandamus, quo warranto, and declaratory judgment, seeking to prevent the County of Kendall from prohibiting the installation of a portable cement plant. Following a bench trial, the trial court entered judgment in favor of defendant on each count. Plaintiffs appeal. We affirm.

HWK, Inc., an Illinois corporation, is the lessee of certain property in Kendall County owned by Merchants National Bank of Aurora, as trustee under trust No. 4237. On December 1, 1989, HWK, Inc., applied for a building permit to install footings for a portable cement plant on the southern portion of the land and a portable asphalt plant on the northern portion. At that time, the property was zoned M-2, heavy industrial district. The permit was approved by the county on December 5,1989.

In March 1990, plaintiffs purchased a tract of land adjacent to the northern portion of the property already owned. On July 27, 1990, plaintiffs sold the southern portion of the property. It was stipulated at trial that plaintiffs at some point notified defendant that they did not intend to proceed with their plans for an asphalt plant on the northern portion of land.

Between early December 1989 and mid-November 1990, defendants produced a feasibility or marketing study, obtained bids from two cement plant manufacturers, constructed a blacktop access road, and paid for a drainage plan to be drawn up. Holes for the installation of footings for the portable plant were begun in November 1990, and on November 26, 1990, plaintiffs requested a footing inspection by defendant.

Kendall County building and zoning administrator Robert Nordengren inspected the digging site pursuant to plaintiffs’ request. Mr. Nordengren “red-tagged” the job, bringing the work to a halt. In response to plaintiffs’ inquiry, Mr. Nordengren wrote a letter to plaintiffs’ counsel on November 28, 1990, stating that plaintiffs’ building permit was invalid for two reasons:

“1. Both the Kendall County and the BOCA National Building Codes state that a permit lapses if a substantial start is not made within a six month period.
2. This property is zoned M2, while cement plants and asphalt plants come under M3 zoning as a result of Board action taken on July 10,1990.”

Mr. Nordengren testified at trial that when he inspected the site he indicated to the construction workers that “this is not where you said you were going to build this.” After telephoning the “home office,” the workers left the site. Mr. Nordengren later took measurements of the digging site’s location in relation to the boundaries of plaintiffs’ two parcels of land and determined that the holes were being dug on the property purchased subsequent to plaintiffs’ obtaining a building permit.

Two witnesses testified at the bench trial, Christian Vene, sole shareholder of HWK, Inc., and Robert Nordengren, Kendall County zoning administrator. The trial court ruled in favor of defendant on the ground that plaintiffs had not acquired a building permit for the installation of a cement plant on the adjacent property purchased subsequent to the issuance of the original permit.

Plaintiffs argued at trial, as they do again on appeal, that property covered by a valid building permit should not be affected by a subsequent change in the zoning ordinance. Plaintiffs state the rule correctly. In general, there is no vested right in the continuance of a law or ordinance. (O’Connell Home Builders, Inc. v. City of Chicago (1981), 99 Ill. App. 3d 1054, 1060; Naumovich v. Howarth (1968), 92 Ill. App. 2d 134, 139.) However, any substantial change of position, expenditures, or incurrence of obligations occurring under a building permit or in reliance upon the probability of its issuance is sufficient to create a right in the permittee and entitles him to complete the construction and to use the premises for the purpose originally authorized irrespective of a subsequent zoning or change in zoning classification. Fifteen Fifty North State Building Corp. v. City of Chicago (1958), 15 Ill. 2d 408, 416.

The BOCA National Building Code and Kendall County ordinances incorporate this principle. The BOCA code states: “Any permit issued shall become invalid if the authorized work is not commenced within six months after issuance of the permit, or if the authorized work is suspended or abandoned for a period of six months after the time of commencing the work.” (BOCA National Building Code §112.2 (1987-90).) A Kendall County building ordinance states in pertinent part: “Permit lapses if a substantial start is not made in six (6) months [or] if substantial progress is not made in a one (1) year period.” Kendall County, Ill., Building Ordinance (19_).

Plaintiffs further maintain that they received insufficient notice of the zoning board’s July 10, 1990, action to reclassify cement plants under M-3 zoning.

In its letter of decision of January 14, 1992, the trial court found “convincing” plaintiffs’ arguments (1) that the construction of the road and the obtaining of the bids constituted substantial progress, thereby extending the original permit from six months to one year, and (2) that defendant did not give plaintiff adequate notice of the June 1990 zoning change. However, the trial court went on to state that these arguments were only convincing provided that plaintiffs had complied with the building permit. The court determined that because a building permit was never acquired for, nor the existing permit ever amended to include, the subsequently purchased property upon which plaintiffs sought to build a cement plant, judgment must be entered in favor of defendant.

The trial court’s final order, denying plaintiffs’ motion to modify judgment or to modify findings, found the evidence presented by plaintiffs insufficient to meet their burden of showing that the building permit acquired in December 1989 extended to or was at any time applicable to the property subsequently acquired. We agree with the trial court that plaintiffs’ failure to make this showing is dispositive; therefore, our review does not reach the issues raised regarding adequacy of notice and substantiality of the work begun.

Plaintiffs assert (1) that it was never proven below that the holes for the footings were begun on property for which plaintiffs had not obtained a permit, and (2) that even if the work was begun where not permitted, defendant should have informed plaintiffs of this fact and allowed them to correct their mistake by filling the holes and redigging on property covered by the original permit.

Plaintiffs support their claim that it was never established below that the holes were begun on land for which no permit had been obtained by asserting that no proof was presented at trial as to the precise legal description of the property plaintiffs purchased subsequent to obtaining the permit. The argument is somewhat disingenuous. The proposed footings that were the subject of the application are represented within the original property bounds as outlined on an unchallenged defense exhibit. Moreover, the trial judge specifically clarified in the presence of counsel for both parties that the subsequently purchased land, an area outlined in green on one of defendant’s exhibits, was the land on which Mr. Nordengren saw the footing holes being dug. No objection to this determination, or to the exhibit, was made during the trial. Mr. Nordengren consistently testified, with the aid of copies of survey plats, that the work had been begun on the subsequently purchased property. At the close of trial, the judge asked if there were any objections to having Mr. Nordengren mark an exhibit with an X showing where he observed the holes being dug. There was no objection, and the exhibit was so marked.

Plaintiffs did take exception to the trial court’s finding as to the location of the footing holes in their motion to modify judgment or to modify findings. There, they complained that the only testimony at trial that the proposed site was beyond the legal property description of the first site was that of Mr. Nordengren. Plaintiffs offered no countervailing evidence at trial and offer none on appeal. We see no reason to disturb the trial court’s finding.

Plaintiffs further assert that there is no testimony in the record that indicates that the property marked with the green “X” was not also owned by plaintiffs at the time the building permit was applied for. We disagree. Mr. Vene testified that he bought the additional property from Agnes A. Albert; according to plaintiffs’ own exhibit, the warranty deed effecting the sale of this property conveyed the property to plaintiffs on March 13, 1990, and the transaction was recorded on March 26, 1990. The record contravenes the suggestion that plaintiffs may have owned the property on which the digging was begun at the time the building permit was issued, December 5,1989.

Plaintiffs argue in the alternative that even if the holes were dug on subsequently purchased property for which no permit had been obtained, plaintiffs should have been informed by defendant and given the opportunity to cure their mistake. The only support plaintiffs offer for this assertion is the testimony of Mr. Nordengren that his office has followed this procedure in the past on some occasions when work has been begun too close to a setback line or even over a property line. There is no indication in the record of how often or under what circumstances this procedure might be followed, nor whether it is county policy. Plaintiffs make no claim that such a procedure is required by code. Absent argument to the contrary, it appears to us that the decision to revoke a permit or to allow the erring party to correct its mistake is discretionary and properly belongs to the county administrator.

Finally, plaintiffs claim that the administrator’s letter following his visit to the site on or about November 26 should have informed them that their permit was rendered invalid not only by their failure to make a substantial start and by the zoning change, but also by the fact that they were digging the footing holes in the wrong place. Plaintiffs further contend that raising improper location for the first time at trial should be barred on the basis of estoppel or misrepresentation.

Plaintiffs mention no code provisions to support their view of the administrator’s obligations. As legal authority, they again offer the principle that a substantial change in position, expenditures, or incurrence of obligations creates a right in the permittee. Fifteen Fifty North State, 15 Ill. 2d at 416.

Plaintiffs compare their cause to that of the permit applicants in Cos Corp. v. City of Evanston (1963), 27 Ill. 2d 570. In Cos Corp., the plaintiffs sought a permit from the city for a contemplated commercial building. The supreme court found that a substantial change in position by expenditures was made in reliance upon the probability of the issuance of the building permit, based upon both the existing zoning ordinance and the assurances of city officials. Cos Corp., 27 Ill. 2d at 576-77.

Plaintiffs appear to analogize their own position with the following argument: because the originally purchased property was zoned for heavy industry, it was reasonable to presume that the subsequently purchased adjacent property was also zoned for heavy industry. Lacking notice of any change in zoning classification for the original property, plaintiffs began construction on the adjacent property in reliance on the probability that a permit would also be issued for that property.

Plaintiffs’ reliance on Cos Corp. is misplaced. The plaintiffs in that case actively pursued a building permit for their project and incurred a substantial change in expenditures based in part upon the affirmative manifestations of governmental representatives. In the instant case, plaintiffs, obviously familiar with the permitting process, did not apply for a permit on the adjacent parcel and, by their own admission, had no contact with county officials for nearly a year after obtaining the original permit other than to notify them that they were not going to build an asphalt plant on the northern portion of the originally purchased property. In other words, they were utterly lacking in assurances from the county that proceeding to install a cement plant on the subsequently purchased property would be permitted.

We find that the building permit acquired by plaintiffs on December 5, 1989, did not extend, nor was it applicable, to the property acquired by plaintiffs subsequent to the issuance of said building permit. We affirm, therefore, the trial court’s order denying all three counts of plaintiffs’ complaint.

Affirmed.

UNVERZAGT and WOODWARD, JJ., concur.


author: JUSTICE DOYLE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL L. GILYARD, Defendant-Appellant.
    Second District
    No. 2—90—1206
    Opinion filed October 1, 1993.
    G. Joseph Weller and Ingrid L. Moller, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Michael J. Waller, State’s Attorney, of Waukegan (William L. Browers and David A. Bernhard, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE DOYLE

delivered the opinion of the court:

We reexamine our previous opinion in this case pursuant to a supervisory order of the Illinois Supreme Court. In our initial review, defendant, Michael Gilyard, appealed his convictions of felony murder (Ill. Rev. Stat. 1989, ch. 38, par. 9 — l(aX3) (now codified, as amended, at 720 ILCS 5/9 — l(aX3) (West 1992))) and home invasion (Ill. Rev. Stat. 1989, ch. 38, par. 12 — ll(aX2) (now 720 ILCS 5/12 — ll(aX2) (West 1992))), and we affirmed the judgment of the trial court and remanded the cause for imposition of a sentence on the home invasion conviction (People v. Gilyard (1992), 237 Ill. App. 3d 8). Subsequent to our decision, the Illinois Supreme Court issued its decision in People v. Johnson (1993), 154 Ill. 2d 356.

Defendant appealed our decision, and the supreme court issued a supervisory order directing this court to recall our earlier mandate and reconsider, in light of the decision in Johnson, the part of our opinion which affirmed defendant’s home invasion conviction and remanded the case to the circuit court for imposition of a sentence on that conviction. The single issue presently before this court is whether the home invasion charge was necessarily a lesser included offense of the felony murder charge.

The facts of this case were set forth in our first opinion and are reiterated and supplemented in this opinion only as necessary for clarity and understanding of this decision.

As we noted in our earlier opinion, testimony was presented at trial describing numerous injuries which the victim received during the course of the underlying incident. The gunshot, however, was the only injury which would have supported both the felony murder and home invasion verdicts. Because evidence of other injuries was presented to the trial court which would have supported the charge of home invasion but not felony murder, we concluded that the separate and independent acts supported multiple convictions. See Gilyard, 237 Ill. App. 3d at 26-27, citing People v. King (1977), 66 Ill. 2d 551, 566.

Subsequent to our decision, the Illinois Supreme Court issued its decision in Johnson. In Johnson, the defendant pleaded guilty to a stabbing murder. Defendant was also charged with home invasion, and the information alleged that the same stabbing was the element of injury underlying that charge. Although allegations concerning the sexual assault of two other victims inside the home could have been the underlying injury for the home invasion charge, these acts were not alleged in the information. (See Johnson, 154 Ill. 2d at 371.) The supreme court concluded that because the stabbing, alleged as an element of home invasion, was the same act supporting defendant’s felony murder conviction, the home invasion was necessarily a lesser included offense of the murder. Johnson, 154 Ill. 2d at 371-72.

In the present case, count III of the indictment charged that defendant “committed the offense of First Degree Murder, in that [he], without lawful justification, while committing a forcible felony, Home Invasion, *** shot [the victim] with a gun, thereby causing the death of [the victim]" (Emphasis added.) Defendant was charged in count V of the indictment with the offense of home invasion. Specifically, this count alleged “that the said defendant, who was not a peace officer acting in the line of duty, without authority, knowingly entered into the dwelling place of [the victim] *** having reason to know that one or more persons were present within that dwelling, being [the victim], in that the defendant shot [the victim] with a gun.” (Emphasis added.) The various other injuries which arguably could have provided a basis for the home invasion charge were not alleged in the indictment. Also, the language of the indictment does not support a reading that the gunshot was among one of several unspecified underlying injuries. Therefore, in accordance with the Johnson decision, the home invasion, as charged, was necessarily a lesser included offense of the felony murder and will not support a separate conviction and sentence. See Johnson, 154 Ill. 2d at 371-72.

For the foregoing reasons, defendant’s conviction of the offense of home invasion is vacated, and the previous mandate of this court directing the trial court to impose a sentence for that conviction is modified accordingly.

Vacated and modified.

WOODWARD and GEIGER, JJ., concur.