text:
      In re MARRIAGE OF JANET GURIN, Petitioner-Appellant, and WILLIAM GURIN, Respondent-Appellee.
    First District (1st Division)
    No. 1—89—2300
    Opinion filed April 8, 1991.

      Diane Shelley, of Chicago, for appellant.
    Pascucci & Associates, of Chicago (Nancy C. Pascucci, of counsel), for appellee.
   PRESIDING JUSTICE MANNING

delivered the opinion of the court:

Petitioner Janet Gurin obtained a judgment of dissolution of marriage which incorporated an oral marital settlement agreement that Janet sought to modify on the grounds of fraud, or alternatively, mistake of fact. The court denied the motion to modify and Janet appeals.

Petitioner Janet Gurin and respondent William Gurin were married on February 14, 1978. As a result of the union, two children were born, William Gurin, Jr., and Jennifer Gurin. On July 21, 1988, Janet filed a petition for dissolution of marriage and a petition for domestic violence order of protection. The petition for domestic violence order of protection supported by affidavit was heard on that same day as an emergency. An ex parte order of protection was entered restraining William from further physical abuse, harassment or intimidation against Janet and requiring him to pay Janet $439 per week for child support and maintenance. Janet, who retained custody of the two minor children, had no employment outside the home.

On March 30, 1989, prior to commencement of the hearing on Janet’s petition for dissolution of marriage, the parties entered into negotiations to settle certain matters between themselves during which William stated that he was then unemployed. During the prove up on that same day, William testified and provided evidence that he was then receiving unemployment compensation. The parties agreed that William would pay no less than 25% of his net income to Janet as child support for the children. He stated that although $50 represented 25% of his weekly net income, he agreed to pay Janet $75 per week. The parties further agreed that William would retain the marital residence and pay all of the marital debts. Because the marital residence was in foreclosure and 10 months of past-due mortgage payments were due to be paid within 30 days, William was given the option of conveying the house back to the lender to avoid a judgment against the parties or to seek bankruptcy relief under chapter 13.

On May 8, 1989, William filed an emergency petition for enforcement of the March 30 agreement, requesting, among other things, that Janet immediately turn over possession of the marital residence and an order directing the agreed visitation of the children. He attached proof of filing a bankruptcy petition and a draft of the settlement agreement. On May 18, 1989, William signed the judgment of dissolution of marriage and it was subsequently signed by Janet. On May 22, 1989, the court entered the judgment of dissolution of marriage.

On June 20, 1989, William filed a motion requesting that a judge’s deed be entered by the court since Janet failed to quitclaim her interest in the marital property in accordance with the agreement. On July 12, 1989, the court executed a judge’s deed conveying the marital residence to William.

In the interim, on June 21, 1989, Janet had filed a motion pursuant to section 2 — 1301 of the Civil Practice Law (Ill. Rev. Stat. 1987, ch. 110, par. 2—1301), to modify the judgment with respect to property distribution and child support based on her belief that William had made intentional misrepresentations to the court for the purpose of fraudulently inducing her into the settlement agreement. The motion also referred to article VII of the judgment, which states:

“Both the Wife and Husband hereby agree that they have disclosed to the other directly or through their attorneys any and all property, assets, choses in action and cash that they have any interest in as of the date of execution of this agreement, other than those assets acquired by legacy, descent or acquired prior to marriage.” (Emphasis added.)

The affidavit attached to Janet’s motion to modify stated that she only agreed to accept $75 per week as support because of her husband’s representations that his only source of income was unemployment compensation. Furthermore, she would not have agreed to convey the marital residence to William if she had known William was employed and that she could have received additional support. Janet also attached to her petition a copy of William’s bankruptcy petition filed on April 17, 1989, which stated that he had been employed for one week with net earnings of $492 per week and his gross income for 1988 was $31,000. Janet’s motion to modify was heard on July 25, 1989, with both parties testifying. Her motion was denied, and it is from this order that Janet appeals.

On appeal, Janet contends that the trial court erred by failing to find the settlement agreement either unconscionable on its face or improper because it was obtained by fraud or at least based on a mistake of fact. It is Janet’s position that given William’s testimony during the July 25 hearing, which revealed earlier discussions with his employer about the time he would commence employment, coupled with his signing the judgment on May 19 that stated he had made full disclosure of assets and property but which did not reflect his current status of employment, the settlement agreement must be vacated and set aside. Moreover, William failed to submit to Janet 25% of his net income for child support immediately upon employment but led the court and Janet to believe he was still receiving unemployment compensation. On the basis of the following, we reverse the trial court’s order denying Janet’s motion to modify the judgment as it pertains to property distribution and child support.

Section 502 of the Illinois Marriage and Dissolution of Marriage Act (hereinafter Act) provides in relevant part:

“[Ajttendant upon the dissolution of their marriage, the parties may enter into a written or oral agreement containing provisions for disposition of any property owned by either of them, maintenance of either of them and support, custody and visitation of their children.
(b) The terms of the agreement, except those providing for the support, custody and visitation of children, are binding upon the court unless it finds, after considering the economic circumstances of the parties and any other relevant evidence produced by the parties, *** that the agreement is unconscionable.” (Ill. Rev. Stat. 1987, ch. 40, pars. 502(a), (b).)

Thus, section 502(b) authorizes a court to vacate or set aside a settlement agreement entered pursuant to the Act.

Under prior Illinois law, the standard for court approval of settlement agreements was fairness and reasonableness. However, in the case of In re Marriage of Carlson (1981), 101 Ill. App. 3d 924, 929-30, 428 N.E.2d 1005, this court enunciated:

“Section 502(b) of the Illinois Marriage and Dissolution of Marriage Act [citation] has changed Illinois law with respect to determining the validity of separation agreements. [Citation.] Pursuant to section 502(b) the terms of a separation agreement, except those providing for the support, custody and visitation of children, are binding upon the court unless it finds that the agreement is unconscionable. However, this section does not eliminate many of the traditional grounds for setting aside settlement agreements, including fraud, coercion and violation of any rule of law, public policy or morals. [Citations.] (Emphasis added.)”

We have reviewed the record below and conclude that the trial court had a sufficient basis to set aside the settlement agreement on either the traditional ground of fraud or the statutory ground of unconscionability. However, before we proceed to address the issues of fraud and unconscionability, we turn our attention to a matter raised by William with regard to when the judgment was rendered. William maintains that the parties first negotiated a valid settlement agreement that was entered into the record on March 30, at the prove up. He asserts that at that time neither Janet, the attorneys, the presiding judge, nor William believed that the oral agreement was unfair. Moreover, at the time the agreement was entered, William was unemployed. He maintains that during the two-month period between March 30, 1989, and May 22, 1989, when the actual judgment was entered, Janet changed her mind and decided that the agreement was not fair since William then had a job.

William argues that a “judgment is the sentence of the law pronounced by the court on matters contained in the record.” (See 49 C.J.S., Judgments §1 et seq. (1947).) Moreover, the judgment is considered as rendered at the time the court pronounces its judgment and does not depend upon the actions of the clerk in recording or expanding the judge’s minutes. (People ex rel. Schwartz v. Fagerholm (1959), 17 Ill. 2d 131, 161 N.E.2d 20; Casati v. Aero Marine Management Co. (1976), 43 Ill. App. 3d 1, 356 N.E.2d 826.) William contends that in In re Marriage of Carlson (1989), 186 Ill. App. 3d 635, 542 N.E.2d 760, judgment was entered without the signature of the respondent since the reduction of the agreement to writing was not a “condition precedent” to its entry. Thus, he asserts that the inference of the Carlson opinion is that the parties here signed the judgment solely for the purpose of acknowledging that the judgment conforms to the transcript of proceeding held on the date of the prove up.

What concerns us about William’s argument is the implication that the trial court was limited to a review of the conditions and circumstances surrounding the negotiations of the agreement which transpired on March 30, 1989, rather than those conditions that existed following the prove up and leading up to May 22, 1989, when the court signed the judgment incorporating the agreement. However, his reasoning is flawed for two reasons.

First, William’s reliance on the Carlson opinion is misplaced. Supreme Court Rule 272 (107 Ill. 2d R. 272), which governs when judgment is entered, provides in pertinent part that “[i]f at the time of announcing final judgment the judge requires the submission of a form of written judgment to be signed by him, *** the judgment becomes final only when the signed judgment is filed.” Our courts have interpreted the rule to mean that proceedings are in a state of abeyance until written judgment is filed and bare announcement of final judgment cannot be enforced. (In re Marriage of Black (1987), 155 Ill. App. 3d 52, 507 N.E.2d 943.) Judgment is entered at the time judgment is entered of record. Thus, as here, judgment was not rendered until the written judgment was filed.

Second, putting aside William’s argument as to the rendition of judgment even if he had cited authority for the proposition that the trial court, when determining the propriety of a settlement agreement is limited to a review of the circumstances as they exist when the agreement is negotiated, we would find such a rule inapplicable here where the grounds urged for setting aside the agreement are the same as those that could be raised for setting aside or reopening a judgment. For instance, section 510(a) of the Act provides that provisions relating to property disposition are not modifiable or revocable unless the court finds the existence of conditions that justify the reopening of a judgment under the laws of the State. (See Ill. Rev. Stat. 1987, ch. 40, par. 510(a).) Moreover, in In re Marriage of Reines (1989), 184 Ill. App. 3d 392, 540 N.E.2d 394, the court held that a section 2—1401 petition (Ill. Rev. Stat. 1987, ch. 110, par. 2—1401) was a proper method by which to attack the validity and fairness of a property settlement agreement incorporated in the judgment of dissolution.

Our courts have continually found that a property settlement agreement could be set aside and vacated where it resulted from fraud or coercion by either party. (Guyton v. Guyton (1959), 17 Ill. 2d 439, 161 N.E.2d 832; Crawford v. Crawford (1976), 39 Ill. App. 3d 457, 350 N.E.2d 103; Wilke v. Wilke (1977), 51 Ill. App. 3d 438, 366 N.E.2d 973.) William responds that Janet has failed to present clear and convincing evidence in support of her allegation of fraud. (Turzynski v. Libert (1970), 122 Ill. App. 2d 352, 359, 259 N.E.2d 295.) We disagree.

We believe that the record supports Janet’s contention that William deliberately concealed his prospects of impending employment and his actual employment with the intent to deceive on his part. Fraud may consist in the concealment of what is true as well as in the assertion of what is false where the concealment is shown to have been done with the intention to deceive under circumstances creating an opportunity and duty to speak. (Lagen v. Lagen (1973), 14 Ill. App. 3d 74, 302 N.E.2d 201.) William contends that he was unemployed at the time the settlement agreement was entered and that he had no duty to speak once he became employed. Moreover, the agreement only placed an affirmative obligation upon him to inform Janet at the beginning of the year of any change in his employment, and he unilaterally increased his support payments some time after he commenced employment to represent 25% of his net pay. These assertions may suffice to explain William’s behavior regarding child support; however, they do not lessen or negate the harm inflicted upon Janet and the children as to the matter of the marital residence.

Fraud is the intentional misrepresentation of a material fact or the concealment of a fact which induces a party to rely on that misrepresentation to his or her detriment. (In re Marriage of Bashwiner (1982), 107 Ill. App. 3d 772, 438 N.E.2d 490, 494.) The agreement was signed on or about May 19, 1989, at which time William was employed but failed to notify the court of such employment. Janet testified that she relied to her detriment on William’s representation of unemployment, and had she known that he was employed, she never would have entered into an agreement to accept $75 per week for support nor would she have agreed to give William the marital residence and all of the vehicles.

We agree with Janet that William concealed the fact of his employment. We believe that William’s sworn bankruptcy petition stating that his gross income was $620 per week was clear and convincing evidence of his true income. (Tsuetaki v. Novicky (1983), 158 Ill. App. 3d 505, 509 N.E.2d 1019.) William signed the judgment that allowed him to pay $75 per week in child support based on his unemployment status after he had filed a sworn bankruptcy petition asserting that he was gainfully employed. It has been previously held that contradictory testimony that was given in separate proceedings relative to the same factual situation can establish fraud. (See Tsuetaki, 158 Ill. App. 3d 505, 509 N.E.2d 1019.) Moreover, although William’s counsel, who also represented him in the bankruptcy proceedings, appeared in court several times after the bankruptcy petition was filed, he never stated that William was now employed, which constitutes concealment of a material fact upon which Janet detrimentally relied.

Additionally, the agreement specifically stated that both parties had disclosed all assets as of the date of execution of the agreement. In the present case there was a failure to disclose such interest, i.e., the additional cash William received as a result of employment.

A trial court will not be disturbed on review unless its decision is against the manifest weight of the evidence. (Avenue State Bank v. Village of Oak Park (1968), 99 Ill. App. 2d 329, 241 N.E.2d 630; Giacopelli v. Florence Crittenton Home (1959), 16 Ill. 2d 556, 158 N.E.2d 613.) During the July 25, 1989, proceedings on Janet’s motion to modify, the trial court stated that the judgment provides that the respondent will provide notice once a year as to his income if there has been a change. The court further stated that, based upon a review of the testimony, it did not find a basis for modifying the property distribution and the respondent is obligated to pay 25% of his income as child support. However, the court did not make any specific findings concerning Janet’s allegations of fraud. Nor did it reconcile the information regarding William’s employment, which, it appears, was available at the time of prove up but which certainly became known before the judgment of dissolution was entered and should have been presented to the court. (See In re Marriage of Suarez (1986), 148 Ill. App. 3d 849, 499 N.E.2d 642.) Concealment of existing material fact is actionable where it is employed as a device to mislead (Chapman v. Hosek (1985), 131 Ill. App. 3d 180, 475 N.E.2d 593), such as where it relates to a matter upon which plaintiff could be expected to rely in determining whether to engage in conduct in question (Shah v. Chicago Title & Trust Co. (1983), 119 Ill. App. 3d 658, 457 N.E.2d 147), or such that had the defrauded party been aware of the concealed fact, he would have acted differently. See Obermaier v. Obermaier (1984), 128 Ill. App. 3d 602, 470 N.E.2d 1047.

Here, Janet’s testimony reveals that she agreed to give William the marital residence because of his representations of unemployment and had she been aware of his actual or pending employment opportunity, she would have acted differently. William contends that the parties’ negotiation of the agreement was extensive and provident. And in support of such contention, we are mindful of the contingency in the agreement that with respect to the marital residence, William had the option of conveying the property back to the lender or filing a chapter 13 bankruptcy. However, Janet acted based on the circumstances as she believed they existed. She had no employment outside the home and had been informed that the primary provider of the family was unemployed and receiving unemployment compensation. Under these circumstances, there was no possibility of her keeping the home on $75 a week where the record reflects that the mortgage was $590 per month. Conversely, had Janet been aware of William’s promise of immediate employment and that she was entitled to child support in the amount of approximately $500 a month, she may have been able to keep the home at the time and file under chapter 13 based upon her own present income and the support received from William.

Furthermore, since the house was in foreclosure, Janet was forced to make a reasoned decision immediately. Parties can only act according to present facts and circumstances. Had she known that William had a promise of employment and the amount he would receive from Plote Excavating as stated in his affidavit, she may have acted differently. William began working only two weeks after the prove up. He remained employed with Plote for several weeks on a steady basis up to and including the time he signed the judgment. He then worked for another company for several weeks. According to his own testimony, William stated that he did not give Janet 25% of the Plote checks.

Accordingly, we find that, based upon the circumstances of this case, William had an affirmative duty to disclose all information regarding his increase in income and change of employment status to Janet prior to signing and the court’s entry of the judgment. As previously discussed, failure to disclose material information under certain circumstances in which a duty to speak exists, as here, amounts to fraud. See Illinois Central Gulf R.R. Co. v. Department of Local Government Affairs (1988), 169 Ill. App. 3d 683, 523 N.E.2d 1048.

With respect to the question regarding unconscionableness of the settlement agreement, our review of the record reflects that Janet was unemployed throughout the majority of the proceedings and because she was required to find housing and support her children on $75 per week, she and her children were forced to eat out of a food pantry, whereas William was given the marital residence and most of the vehicles under the agreement: Moreover, at the time judgment was entered, William had net earnings of no less than $420 per.week, rather than the small amount he represented to the court he was receiving from unemployment compensation. Thus, Janet was eligible to receive a minimum of $125 per week from William as child support and she also may have been entitled to maintenance. (See Ill. Rev. Stat. 1987, ch. 40, par. 505.) The record shows that Janet commenced working late into the proceedings; thus, her combined earnings and appropriate payments from William may have resulted in sufficient funds for Janet to support the children and maintain the marital residence.

Carlson describes an “unconscionable bargain [as one] ‘which no man in his senses, not under delusion, would make, on the one hand, and which no fair and honest man would accept, on the other.’ [Citation.] The term ‘unconscionability’ includes ‘an absence of a meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party.’ [Citation.] A contract is unconscionable when it is improvident, totally one-sided or oppressive.” (Carlson, 101 Ill. App. 3d at 930.) This court later held that the inquiry into unconscionability requires at least two considerations: (1) the conditions under which the agreement was made and (2) the economic circumstances of the parties that result from the agreement. In re Marriage of Foster (1983), 115 Ill. App. 3d 969, 972, 451 N.E.2d 915, 918.

Applying those principles to the case at bar, we conclude that William had prospects of immediate employment but did not advise the court or Janet’s attorney; nor did he advise them when he became employed or increase his child support payments to reflect the 25% increase he was required to pay on behalf of the children. As previously discussed, the conditions under which the agreement was made immediately changed, causing a substantial change in the economic circumstances of the parties and a corresponding duty on William’s part to speak. Moreover, William retained virtually all of the marital assets while Janet received only one vehicle.

We conclude that the existence of an additional fact, which became apparent after the cause proceeded to trial but prior to judgment, required the trial court to consider vacating the earlier judgment to make a determination as to whether such agreement was procured by fraud or at least make a determination as to whether the additional factor rendered the agreement fair and conscionable under the circumstances. The purpose of a petition for rehearing to modify or revise judgment is to permit modification or vacation of judgments where facts exist which, had they been known to the trial court, would have precluded judgment.

As there was an affirmative duty on the part of William to disclose the conditions surrounding his employment so that Janet would have the same facts at her disposal as William in negotiating the property settlement and prior to signing off on the judgment, we find that failure to disclose on the part of William deprived Janet of a material fact necessary to intelligently arrive at a settlement agreement and further deprived the trial court of an opportunity to correctly determine the propriety of the agreement and whether it was unconscionable. (See Garmisa v. Garmisa (1972), 4 Ill. App. 3d 411, 280 N.E.2d 444.) Once it was apprised of all the facts, the trial court erred in refusing to respond to Janet’s assertions regarding William’s intentional concealment of the conditions surrounding his employment and, by its failure to inquire further into the current status of William’s employment, how it affected the parties’ financial circumstances and what bearing it had upon the distribution of the property, if any.

Accordingly, we affirm the trial court’s order of dissolution of the marriage between the parties. We reverse the portion of the trial court’s order denying Janet’s motion to modify the judgment. In light of William’s concealment under circumstances wherein he had a duty to speak and disclose all pertinent information, we remand this cause to the trial court for the purpose of conducting a full evidentiary hearing pursuant to sections 502 and 510 of the Act (Ill. Rev. Stat. 1987, ch. 40, pars. 502, 510), on the issue of the propriety of the settlement agreement with respect to the marital residence.

Affirmed in part; reversed in part and remanded.

CAMPBELL and BUCKLEY, JJ., concur.


source: Caselaw Access Project

author: JUSTICE BUCKLEY

license: Public Domain

text:
    ST. LUCAS ASSOCIATION, Plaintiff-Appellee and Cross-Appellant, v. THE CITY OF CHICAGO, Defendant-Appellant and Cross-Appellee.
    First District (1st Division)
    No. 1—89—2710
    Opinion filed April 8, 1991.

      Kelly R. Welsh, Corporation Counsel, of Chicago (Ruth M. Moscoviteh and Jean Dobrer, Assistant Corporation Counsel, of counsel), for appellant.
    Rudnick & Wolfe, of Chicago (Thomas F. Geselbracht and Philip L. Goldberg, of counsel), for appellee.
    Mayer, Brown & Platt, of Chicago (Herbert L. Zarov, Daniel J. Delaney, and Anne K. Lewis, of counsel), for amicus curiae North River Commission.
   JUSTICE BUCKLEY

delivered the opinion of the court:

The City of Chicago (the City) appeals from an opinion and order of the circuit court of Cook County which declared unconstitutional its zoning ordinance as applied to a tract of land (the property) owned by plaintiff St. Lucas Association (the Association). The Association cross-appeals, contending that the circuit court erred in denying its claim for “just compensation” based upon a loss of use and temporary taking of the property. For the reasons that follow, we affirm.

The property is a 7.4-acre, rectangular plot of land at the northwest corner of Foster and Pulaski Avenues in the City of Chicago and represents the southeastern corner of the St. Lucas Cemetery. The property is largely vacant, unconsecrated, and has never been used for interment. The north branch of the Chicago River, which traverses the area in a northwest-southeast manner, grazes the southwestern comer of the property.

The arterial streets that traverse the area are as follows. One-half mile to the north of Pulaski Avenue is Bryn Mawr Avenue; one mile north is Peterson Avenue. To the south, one-half and one mile, respectively, are Lawrence and Montrose Avenues. One mile to the west of Pulaski Avenue is Cicero Avenue; one-half mile to the east is St. Louis Avenue.

Other than a C2-2 (general commercial district) zoning classification assigned to a small service station at the southeast corner of Foster and Pulaski Avenues, the lands most near the subject property are zoned as single-family residence districts (R1 or R2). None of these lands, however, are used for single-family housing: the closest single-family residences are located about one-quarter mile west of the property on the south side of Foster Avenue.

To the immediate north and northwest of the property lies St. Lucas Cemetery. Montrose Cemetery lies farther north and adjoins St. Lucas Cemetery’s northern border and has Bryn Mawr Avenue as its northern border. To the east and northeast óf the property, across Pulaski Avenue and bounded by St. Louis Avenue to the east, lies Bohemian National Cemetery and Northeastern Illinois University. To the south of the property across Foster Avenue lies Gompers Park. To the immediate west of the property, between Foster Avenue and the river, lies the remainder of Gompers Park.

The commercial and business zoning and uses near the property are centered south of the property at the intersection of Lawrence and Pulaski Avenues. This intersection hosts one of the principal business districts that services the residences located in the area. Moving north from this intersection along Pulaski Avenue, commercial uses are interspersed with single-family, multifamily, and institutional uses. At Gompers Park, commercial uses stop altogether, save for the small service station located on the comer. Along Foster Avenue, the nearest commercial zoning is at least one-half mile away to the east; the. remainder of Foster Avenue is largely zoned R2 and is used for single-family residences.

The Association is an Illinois not-for-profit corporation which founded the St. Lucas Cemetery 85 years ago. In 1919, the Association purchased a one-acre tract of land located within the present boundaries of the property and fronting on Pulaski Avenue. This one-acre purchase merely filled out the Association’s existing land holdings. Earlier, in the early 1900’s, the Association had purchased the bulk of the lands that comprise the property, the adjacent St. Lucas Cemetery, and Gompers Park. At that time, Foster Avenue did not continue west of Pulaski Avenue. The lands that comprise Gompers Park were later donated to the Chicago Park District.

In 1923, when the City enacted its first zoning ordinance, the property and adjoining cemetery lands were given an R2 classification. This zoning permits single-family residences on lots not less than 5,000 square feet as well as other uses including, among others, cemeteries, churches, parks, and schools. The property has always retained its R2 classification.

In 1985, the Association entered into an agreement to sell the property for $1,375,000 to a development group contingent upon the property’s rezoning from its current R2 classification to a B5-2 classification (general service district). This classification would permit the development group’s proposed development plan (the plan), which proposes a 65,000-square-foot grocery store, attendant retail stores, parking, and other shopping amenities.

On May 10, 1986, the Association submitted to the City an application for a zoning change and approval of the plan. After public hearings before the Chicago plan commission and the committee on zoning of the Chicago city council, the committee on zoning recommended rejection of the application. On June 8, 1988, the Chicago city council deferred to the committee on zoning’s recommendation, effectively denying the Association’s application. This suit followed.

In its suit, the Association sought: (1) a declaratory judgment that the City’s zoning ordinance is unreasonable and void as applied to the property and that the Association’s plan is reasonable; (2) an injunction barring enforcement of the ordinance against the property and requiring the City to issue the building permits and zoning certifications needed to proceed with the plan; and (3) “just compensation” pursuant to the Illinois Constitution (Ill. Const. 1970, art. I, §15) for the Association’s complete loss of “all economically viable uses” of the property during the period between the City’s denial of the Association’s application and the circuit court’s grant of declaratory and injunctive relief.

On September 25, 1989, the circuit court entered a final judgment order which granted the Association’s requests for declaratory and injunctive relief, but denied its request for just compensation on the ground that the City’s actions did not deny all economically viable uses of the property. ;

The first issue we address is whether the circuit court correctly found that the City’s ordinance was unconstitutional as applied to the property. In Illinois, it is well established that a municipality may adopt and amend zoning ordinances as an exercise of the police power in order to promote and protect the public health, safety, morals, comfort and general welfare of the people. (See, e.g., Jeisy v. City of Taylorville (1980), 81 Ill. App. 3d 442, 448, 401 N.E.2d 627, 632.) These zoning ordinances carry a presumption of validity, and a person who challenges this presumption has the burden of establishing by clear and convincing evidence that, with respect to his property, the ordinance is arbitrary, capricious and unreasonable and bears no substantial relation to the public health, safety or general welfare. (La Salle National Bank v. County of Cook (1957), 12 Ill. 2d 40, 46, 145 N.E.2d 65, 69; Michalek v. Village of Midlothian (1983), 116 Ill. App. 3d 1021, 1034, 452 N.E.2d 655, 663; Jeisy, 81 Ill. App. 3d at 449, 401 N.E.2d at 632.) A zoning ordinance may be valid generally yet be invalid as applied to a particular parcel of property and a particular set of facts. (Jeisy, 81 Ill. App. 3d at 448, 401 N.E.2d at 632.) Each case is determined according to its own facts and particular circumstances.

In LaSalle National Bank (12 Ill. 2d at 46-47, 145 N.E.2d at 69), the Illinois Supreme Court set forth the factors a court is to consider in determining the validity of a zoning ordinance: (1) the existing uses and zoning of nearby property; (2) the extent to which property values are diminished by the particular zoning restrictions; (3) the extent to which the destruction of property values 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 considered in the context of land development in the area in the vicinity of the subject property.

Additional factors a court may consider are the community need for the proposed use and the care with which the community has undertaken to plan its land use development. Sinclair Pipe Line Co. v. Village of Richton Park (1960), 19 Ill. 2d 370, 378, 167 N.E.2d 406, 411.

On appeal, the City’s basic contention is that the Association failed to overcome the presumption of validity that attaches to all municipal zoning ordinances. The City contends that, at best, the Association raised only a debatable issue as to the validity of the ordinance and, therefore, the courts are required to defer to the zoning classification the City has assigned to the property. (See La Salle National Bank & Trust Co. v. County of Cook (1981), 94 Ill. App. 3d 341, 351, 418 N.E.2d 932, 938.) The Association responds that the circuit court’s findings of fact as to each La Salle factor are not contrary to the manifest weight of the evidence and that, collectively, the evidence it produced satisfied its burden under La Salle. The analysis set forth below considers each of these factors separately in light of the evidence submitted by the parties.

The first factor we consider is whether the property “is zoned in conformity with surrounding existing uses and whether those uses are uniform and established.” (LaGrange State Bank v. County of Cook (1979), 75 Ill. 2d 301, 309, 388 N.E.2d 388, 391.) Although no LaSalle factor is controlling (La Salle National Bank, 12 Ill. 2d at 46, 145 N.E.2d at 69), courts recognize this LaSalle factor as being “[o]f paramount importance.” LaGrange State Bank, 75 Ill. 2d at 309, 388 N.E.2d at 391.

In addressing this factor, the circuit court concluded that the existing uses and zoning of the nearby property were predominantly “nonresidential” in character and that the main north-south arterial road, Pulaski Avenue, was of a predominantly commercial character. The court noted that the property was surrounded by a complex of cemeteries, a service station, and a park across Foster Avenue. It further noted that the Association’s proposed development plan harmonized with “the existing commercial character of the neighborhood” and that no adverse impact on any residential development could reasonably be expected because any such development is “hundreds of feet” from the property.

As to this factor, the parties dispute the character of the lands that surround the property. The City claims that the character of the area surrounding the property is residential because, as shown by the zoning map of the area, the lands around the property are primarily zoned R2 and are being used in conformity with that zoning. The Association, however, notes that the City’s assessment of the area is flawed because the character of the area cannot be gleaned from merely looking at a zoning map. Rather, the Association’s characterization of the area emphasizes that nonresidential uses surround the property and that these uses are not reflected on the face of a zoning map.

The evidence reflects that the property is located within a well-developed, mature area of the City of Chicago which is undergoing selective redevelopment. To the south of Foster Avenue, the zoning and uses are predominantly residential. These areas represent long-established, single-family and multifamily residential districts. The exception to these residential uses occurs along Pulaski and Lawrence Avenues, which are predominantly zoned for commercial and business uses.

To the north of Foster Avenue, cemetery lands dominate, with the St. Lucas, Montrose, and Bohemian Cemeteries occupying all the lands surrounding the property. Other uses located north of Foster Avenue are Northeastern Elinois University and the former Tuberculosis Sanitarium, with the latter occupying the entire northeastern quadrant formed by Bryn Mawr and Pulaski Avenues. The testimony reflects that in a land planning sense, these uses are classified as institutional uses. When the City enacted its first zoning ordinance in 1923, institutional uses were given an R2 classification. The exact reason for this classification is not apparent from the record, but does explain how the property and the cemetery lands surrounding it, although not used residentially, received their R2 residential zoning classification.

As to this factor, we believe that the circuit court correctly found that the zoning and uses surrounding the property are nonresidential. We find the distinction between a land use and the zoning classification assigned to that use critical in this case. If one merely looks at a zoning map, the City is correct in its contention that the property is surrounded by R2 zoning and by uses that conform to that zoning classification. We believe, however, that this analysis ignores the nonresidential character of the property generated by the institutional and high-use arterial streets that surround it. In our opinion, it stretches reality to characterize a tract of property as residential where, as here, the nearest residences are located a considerable distance away. Accordingly, allowing the plan to proceed will not result in an unwarranted intrusion of a commercial facility into a residential district as the City contends. In summary, as to this La Salle factor, we believe that the circuit court’s conclusion that the surrounding zoning and uses are nonresidential is not against the manifest weight of the evidence.

The second La Salle factor is the extent to which property values are diminished by the particular zoning restrictions. As to this factor, the circuit court concluded that “a substantial decrease in value (millions of dollars) has been shown.” The City contends that the circuit court’s conclusion overlooks the evidence it presented which showed that the property has substantial value as zoned.

Initially, we note that this factor requires a court to consider the difference between the value of the property as presently zoned and the value it would have if zoned to allow the proposed use. (See Oak Park Trust & Savings Bank v. Village of Palos Park (1982), 106 Ill. App. 3d 394, 402-03, 435 N.E.2d 1265, 1272.) Proof of a very large difference in value is insufficient by itself to overcome the presumption of validity of a zoning ordinance. Du Page Trust Co. v. County of Du Page (1975), 31 Ill. App. 3d 993, 999-1000, 335 N.E.2d 61, 66.

The Association’s evidence demonstrates that the property is worth significantly more if developed commercially than if developed in accordance with its R2 classification. William McCann, the Association’s expert appraiser, testified that the value of the property as zoned was $800,000. This figure was based on his estimate that the property’s size limited to 40 the number of single-family lots that could be placed there and that profit considerations limited the price a developer would pay to $20,000 per raw lot. Allen Kracower, the Association’s expert land planner, agreed that the property could generate only 40 single-family lots.

McCann and Kracower also testified that the property could be worthless if an “ambiguous” provision within the City’s zoning ordinance required a 300-foot “buffer” between any residential development and a cemetery. This provision, which was read into the record, provided: “Cemeteries, including crematories and mausoleums in conjunction therewith, if not located within 300 feet of any other property and residence district.” McCann stated that if this provision were read to require a 300-foot buffer between residences on the property and adjacent cemetery lands, the property would be worthless because only a 30-foot by 230-foot strip of land would remain for residential development. On cross-examination, both McCann and Kracower admitted that under one reading of the provision, the buffer would only be required where residences are located near crematories and mausoleums, not merely cemetery lands. In this regard, they acknowledged photographs of residential developments where cemetery headstones were located in close proximity to residences. As to this point, we also note that the aerial photograph of the area reveals headstones located within 300 feet of single-family residences.

Richard Roddewig, an expert appraiser, testified for the City regarding the value of the land as zoned. He testified that 60 single-family residences could be placed on the property. This estimate was predicated on Roddewig’s review of an exhibit depicting a development plan prepared by another party. On hearsay grounds, the exhibit was not received in evidence, but the record contains Roddewig’s testimony relating to it. This testimony reflected that the exhibit assumed private streets and that the 60 single-family lots were to be 25 feet by 100 feet in dimension. On cross-examination, Roddewig was unable to expand on much of the detail of the exhibit because he had not prepared it. Roddewig, however, did estimate that if the property were so developed, it would be worth $1.6 million. He further added, over the Association’s objection that intervening uses are irrelevant in zoning cases, that the property was worth $2.9 million if the property were developed for townhouses.

Regarding the value of the property if zoned to permit the proposed development plan, McCann testified that the property was worth $3,236,000. The City presented no evidence whatsoever on this matter and relied instead on the contract price of $1,375,000 as the proper measure of the fair market value for the property if rezoning were to occur. The Association contends that this latter figure is outdated and should be given little weight.

We believe that the above testimony amply supports the conclusion of the circuit court that the zoning classification significantly diminishes the value of the property. Roddewig’s testimony that 60 homes can be crammed onto the property is not credible. First, the exhibit upon which that figure is based is not in the record. In addition, Roddewig lacked knowledge on significant aspects of the exhibit, such as the front and rear yard setbacks and whether fire code requirements were met. Second, we believe that the aerial photograph of the area best demonstrates the number of single-family homes that could fit on the property. The photograph shows that only about 40 homes could comfortably fit on the property, not 60 as Roddewig testified. Because Roddewig’s testimony overestimates the number of homes that could be built, his opinion as to the property’s fair market value as zoned must be reduced. Once reduced, we believe the testimony supports the conclusion that the property’s fair market value as zoned is between $800,000 and $1 million, based upon 40 single-family homes.

We also reject the higher value Roddewig suggested based upon the construction of townhomes. This figure assumed a different, less restrictive zoning classification. A plaintiff is not required in a zoning case to disprove the reasonableness of intervening zoning classifications; he need only show the ordinance is unreasonable as applied and that his proposed use is reasonable. (See Brunette v. County of McHenry (1977), 48 Ill. App. 3d 396, 398, 363 N.E.2d 122, 123.) Consequently, we need not consider the value the property would have if built with townhomes because such use constitutes an intervening land use, not a use consistent with the current R2 zoning.

Accordingly, we believe that the zoning restriction, at a minimum, diminishes the value of the property by $375,000 to $575,000. This figure would represent the difference between the contract price and the fair market value of the property as zoned. If, as suggested by the Association, the contract price is “stale,” the diminution in value enters the “millions of dollars” range found by the circuit court.

The third and fourth LaSalle factors are frequently considered together. (Michalek v. Village of Midlothian (1983), 116 Ill. App. 3d 1021, 1036, 452 N.E.2d 655, 664; Ward v. County of Cook (1979), 68 Ill. App. 3d 563, 570-71, 386 N.E.2d 309, 315.) These factors require a court to consider the hardship the restriction imposes on an owner in light of the extent to which the existing zoning promotes the general health, safety and welfare of the public. Only by comparing these two factors can a court determine whether the relative gain to the public outweighs any hardship imposed on the owner. Michalek, 116 Ill. App. 3d at 1036, 452 N.E.2d at 664-65.

As to these factors, the circuit court concluded that the City’s ordinance did “not promote the health, safety, or general welfare of the public as compared to the hardship to St. Lucas.” To support its conclusion, the court noted that the proposed use would increase taxes substantially, create new jobs, increase nearby property values due to convenient shopping, only fractionally increase traffic, and have no adverse impact on nearby residences. It further noted that barring the property from its highest and best use would fail to ensure the future of St. Lucas Cemetery.

The City contends that the circuit court’s conclusion ignores the evidence that the plan will adversely affect the values of nearby, residential property and the aesthetics of the nearby river and parks. We disagree and believe the record reflects that, relative to the Association’s hardship caused by the restriction, the gain to the public due to the zoning restriction is minimal. Furthermore, the record shows the proposed development will have significant positive effects and minimal, if any, negative effects.

Regarding the harm to the Association caused by the restriction, Richard Schmucker, the Association’s chairman and long-time board member, testified that the St. Lucas Cemetery has been operating at a deficit for the last 10 years. He explained that maintenance expenses have consumed the Association’s reserves and that income from interments has significantly decreased due to changing family attitudes towards burials.

Schmucker testified that since the late 1950’s, the Association knew that the sale of the property would be needed to ensure its future. He noted that St. Lucas Cemetery has a 250-year supply of burial plots and, therefore, it does not need the property for interments. He also stated that the property has been listed with a broker for 20 years, but only two offers have been received. Both offers were contingent upon the property’s rezoning. He testified that the sale of the property is essential for the cemetery’s continued operation. Reverend David Abrahamson, a pastor connected with the Association, similarly testified that if the sale did not go through, the cemetery would be “finished.”

Regarding the plan’s negative economic impacts on nearby property values, we believe the record shows that the restriction is not necessary in order to preserve nearby property values. Richard Roddewig, the City’s expert appraiser, testified that the plan would adversely impact residential property values by 5% to 10%. He stated that this depreciation would result from the increased traffic caused by the proposed facility and nearby homeowners’ fears of future rezoning. We believe the circuit court properly rejected this testimony as being incredible. First, Roddewig admitted that he did not appraise any house. Accordingly, he was unable to quantify in dollars the amount of depreciation for any particular house. Second, Roddewig recognized that the nearest homes are blocks away across either Foster or Pulaski Avenues or are located one-half mile away to the north. These distances alone suggest that no reduction in market value would occur and that any homeowner fear would be ill-founded. Moreover, no homeowners testified .that their home values would depreciate, and the Association’s evidence on this matter shows that property values would perhaps increase due to the availability of convenient shopping. To be sure, any adverse economic impact on nearby residences would be negligible and could be no more than that which resulted from the construction of the Dominick’s facility that the City recently permitted at Lawrence and Pulaski Avenues. This new facility is located much closer to single-family residences than the proposed facility would ever be.

As for aesthetic considerations, David Mosena, an expert in land planning and current commissioner of city planning, testified for the City that the Chicago River is a natural treasure of the City and that, in conjunction with neighborhood groups, the City makes special efforts whenever possible to enhance the river’s recreational opportunities and increase public access to it. Mosena also reviewed an exhibit which reflected how park and residential uses dominate the banks of the river for large areas on either side of the property.

On cross-examination, however, Mosena admitted that the plan would not interfere with any continuous river-edge walkway which neighborhood groups seek to construct. He also admitted that in areas where the river and arterial intersections intersect, the City has recently permitted commercial uses to adjoin the river. He also acknowledged that the small service station located across the street adjoins the river. In light of this cross-examination, and the considerable distance to the nearest residences, we cannot conclude that aesthetic considerations require a different conclusion on this factor from that reached by the circuit court.

As for the proposed development plan’s positive benefits, the Association’s witnesses testified that convenient shopping as well as temporary and permanent employment would be provided to area residents. Regarding shopping, Patrick Burke, a commercial real estate broker, testified that the City has fewer retail grocery facilities than most other major metropolitan areas in the United States and that the proposed development plan would supply the City with a much needed, modem facility. As for other benefits, plaintiff’s experts agreed that commercial use of the proposed site would generate significant sales and real estate taxes for the City.

Focusing on the negative effects of the plan, the record reflects a negligible impact. We note initially that the plan itself is aesthetically appealing. As for its effect on St. Lucas Cemetery, the record reflects that due to its size and the plan’s extensive buffering devices, the cemetery’s character is not threatened. Reverend Abrahamson, the Association’s spiritual leader, so testified. In this regard, the record reflects that nearby the property, the City has permitted commercial uses in a manner which has resulted in the near destruction of the character of cemetery lands which adjoin those commercial uses. This is the situation at the Beth El and Ridgelawn Cemeteries located on Pulaski Avenue, one-half mile north of the property. The Association’s plan stands in bitter contrast to that situation.

Regarding the plan’s impact on traffic, Gerald Lindgen, an expert traffic engineer, testified that the plan would have a minimal impact on traffic. He noted that Pulaski and Foster Avenues are both arterial streets, with 42,000 vehicles using the intersection daily. During peak hours, the plan would only generate a 4% increase in traffic. The circuit court correctly found this increase insignificant.

Finally, Joseph Zgonia, an expert civil engineer, testified that the plan would meet or exceed the City’s requirements as to sewer, fire, and drainage systems, and would present less of a demand as to these elements than would a single-family residential development. In addition, unlike single-family residences, the plan would not further burden the City’s public school system.

Accordingly, we believe that the circuit court’s findings as to the third and fourth La Salle factors are not against the manifest weight of the evidence. The restriction occasions upon the Association significant harm relative to the public’s gain and bears little relation to the health, safety, morals or general welfare of the public.

The fifth LaSalle factor we consider is the suitability of the property for zoned purposes and its suitability for the plan. As to this factor, the circuit court concluded that the property was undesirable for residential use. The court noted that the property borders two arterial streets with heavy traffic and that the character of the area is essentially commercial.

The evidence is uncontradicted that the property is physically capable of being built with single-family residences and that such a use would be both consistent with the current zoning and not incompatible with the uses and zoning of surrounding property. Indeed, the Association’s witnesses all agreed that 40 single-family homes could be built on the property and that the property has a fair market value as zoned of about $800,000. The law does not require, however, that the subject property be totally unsuitable for the purpose classified; it is sufficient that a substantial decrease in value results from a classification bearing no substantial relation to the public welfare. (Oak Park Trust & Savings Bank v. Village of Palos Park (1982), 106 Ill. App. 3d 394, 405-06, 435 N.E.2d 1265, 1272.) We believe this is the situation with the property.

Allen Kracower, an expert land use planner, and Martin Murphy, the former commissioner of planning for the City of Chicago, both testified to the effect that the highest and best use of the property was pursuant to the Association’s plan and not as single-family residences or other R2 permitted uses. Safety, noise and air-quality problems due to the proximity of the Foster-Pulaski intersection were cited to support their testimony that single-family development was inappropriate. They further stated that any such development would be isolated from other residential neighborhoods and would result in another “island” of homes like that now existing at Pulaski and Bryn Mawr Avenues. Such isolation poses safety problems for children attempting to visit friends or when going to school. Moreover, isolation and the small number of homes would prevent a subdivision from developing a residential character, especially here, where most homes would border on either an arterial street or a cemetery.

For the same reasons listed above, Kracower and Murphy stated that the plan, not single-family residences, reflects the highest and best use of the property. The property’s isolation, size, nearness to arterial streets, and the extensive buffering provided by the surrounding cemeteries and bordering streets were a few of the factors they cited to support the reasonableness of the plan. In this regard, even the City’s witnesses conceded that a less restrictive use on the property would be reasonable.

As for the suitability of the property for the plan, in addition to the highest and best use factors noted above, the record reflects that within the City of Chicago, the corners of arterial intersections are zoned to permit higher intensity, commercial uses, not single-family residential developments. In this regard, the Association’s witnesses noted that the City lacks parcels of land bordering on arterial intersections that are large enough to support modern commercial facilities. They noted that subdividing the property to permit multiple residences in this case would result in the same mistake the City just corrected at Lawrence and Pulaski Avenues. There, the City condemned numerous residential properties in order to assemble a tract of land large enough to permit construction of a Dominick’s facility.

The record also shows that along Pulaski Avenue, business and commercial zoning dominate. Moreover, if a trend of development exists on this street, it is towards commercialization. True, commercial zoning and uses stop before Gompers Park. The record shows, however, that Gompers Park exists because it contains low-lying, flood-prone lands bordering a river, rather than as a result of a master zoning plan which envisions low intensity uses at or near the property. In summary, we believe that the circuit court properly found that the property is more suitable for the plan than for its zoned purposes.

The last LaSalle factor we consider is the length of time the property has been vacant as zoned considered in the context of land development in the vicinity of the subject property. This factor requires a party to show that his property is vacant or unsalable be cause of the zoning classification. Oak Park Trust & Savings Bank, 106 Ill. App. 3d at 406, 435 N.E.2d at 1274-75.

The record shows that the property has been listed for sale by a local real estate brokerage firm since the late 1960's. During this time, the Association received only two purchase offers. The first offer, received in 1978, was withdrawn after the Association was unable to obtain a zoning variance from the City to allow the construction of low-rise multifamily residential buildings on the proposed site. The second offer is the currently pending offer to purchase the property.

Significantly, both offers have been contingent upon a zoning change. While the record does not show how much the property was marketed for its zoned purposes, we believe that the property’s failure to sell is a result of more than just a lack of proper marketing by the Association. As previously discussed, the proposed site is not particularly suitable for single-family residential development. Traffic noise, geographic isolation and proximity to a busy intersection and cemeteries are but a few of the factors weighing against single-family development. Moreover, in light of the testimony that residences in this area are highly sought after and that large scale redevelopment is occurring, the failure of the Association to receive even one offer to develop the land residentially makes even more tenable the argument that the property is improperly zoned. Accordingly, the circuit court’s conclusions under this LaSalle factor are not contrary to the manifest weight of the evidence.

In summary, the circuit court’s findings of fact under each La Salle factor are not contrary to the manifest weight of the evidence. Taken together, we believe that these findings satisfy the Association’s burden in this case. In our opinion, the circuit court properly found that the R2 classification assures that the property may never be developed and that the classification bears no substantial relation to the public health, safety or general welfare. Therefore, we affirm the circuit court’s conclusion that the City’s ordinance is unconstitutional as applied to the Association’s property. In addition, based on the foregoing analysis, we affirm the circuit court’s conclusion that the Association’s proposed use is a reasonable use for the property.

We next focus on the second issue involved in this case: whether the circuit court properly denied the Association’s request for “just compensation” pursuant to the takings clause of the Illinois Constitution (Ill. Const. 1970, art. I, §15). The circuit court concluded that no taking occurred because the City’s denial of the Association’s request for a zoning change occasioned upon the Association only a diminution in value of the property rather than a denial of “all economically viable uses.” On appeal, the Association contends that the manifest weight of the evidence showed that there is no market demand for the property as zoned and, even if such demand existed, the “buffer” requirement within the City’s ordinance precludes any meaningful residential development of the property. Accordingly, the Association contends that the City’s ordinance deprives it of “all economically viable uses” of the property. We disagree.

Initially, we note that the Association’s claim for “just compensation” as a result of a temporary taking is based on First English Evangelical Lutheran Church v. County of Los Angeles (1987), 482 U.S. 304, 96 L. Ed. 2d 250, 107 S. Ct. 2378. In First English, the United States Supreme Court held that where an ordinance operates to deny a landowner “all use” of his property, the owner is entitled to compensation from the taking authority for the duration of the taking. (First English, 482 U.S. at 322, 96 L. Ed. 2d at. 268, 107 S. Ct. at 2389.) We note, however, that in First English, the Court assumed for purposes of its opinion that a taking had occurred in that the owner was denied “all use” of his property. The opinion then proceeded to address the required remedy under Federal constitutional law once a taking is so established. (First English, 482 U.S. at 321-22, 96 L. Ed. 2d at 268, 107 S. Ct. at 2389.) Consequently, First English does not resolve the issue of whether a taking occurred in this case; it only provides the required remedy under Federal constitutional law if we were to determine that a temporary taking has occurred.

In addressing whether a taking has occurred in this case, the issue becomes whether the City’s zoning ordinance “goes too far” so as to be deemed a taking. (Pennsylvania Coal Co. v. Mahon (1922), 260 U.S. 393, 415, 67 L. Ed. 322, 326, 43 S. Ct. 158, 160.) This issue requires a court to undertake line drawing. Of course, defining where the line is to be drawn is problematic. As the Supreme Court has noted, there is “no set formula to determine where regulation ends and taking begins.” (Goldblatt v. Town of Hempstead (1962), 369 U.S. 590, 594, 8 L. Ed. 2d 130, 134, 82 S. Ct. 987, 990.) Aggravating this problem is that the courts of this State have acknowledged that our constitution provides greater guarantees to landowners against takings than the parallel guarantee provided under the fifth and fourteenth amendments of the United States Constitution. (See Rigney v. City of Chicago (1881), 102 Ill. 64; Citizens Utilities Co. v. Metropolitan Sanitary District (1974), 25 Ill. App. 3d 252, 322 N.E.2d 857.) At some time, a court of this State may be required to address whether, in these regulatory taking cases, the guarantees under our constitution are coterminous with or more extensive than those provided under the Federal constitution. Because we conclude that, in this case, the ordinance falls far short of a taking as established under Federal constitutional law, we do not undertake that analysis at this time. Accordingly; we focus our attention on Federal constitutional law as it pertains to regulatory takings.

In Penn Central Transportation Co. v. City of New York (1978), 438 U.S. 104, 57 L. Ed. 2d 631, 98 S. Ct. 2646, the Court addressed the issue of whether the designation of Grand Central Terminal as a landmark under New York City’s Landmarks Preservation Law amounted to a taking under circumstances where this designation operated to deny Penn Central’s lessee from constructing a multistory office building over the terminal thereby destroying the historic and aesthetic features of the terminal. In resolving the issue against Penn Central, the Court stated:

“On this record, we conclude that the application of New York City’s Landmarks Law has not effected a ‘taking’ of appellants’ property. The restrictions imposed are substantially related to the promotion of the general welfare and *** permit reasonable beneficial use of the landmark site ***.” (Penn Central, 438 U.S. at 138, 57 L. Ed. 2d at 657, 98 S. Ct. at 2666.)

In a footnote, the Court emphasized that if at some point in the future, Penn Central could demonstrate that circumstances have so changed that the terminal ceases to be “economically viable,” then relief could be obtained. Penn Central, 438 U.S. at 138 n.36, 57 L. Ed. 2d at 657 n.36, 98 S. Ct. at 2666 n.36.

Accordingly, under Penn Central and its progeny, a regulatory taking occurs when the regulation “denies an owner economically viable use of his land.” (Agins v. Tiburon (1980), 447 U.S. 255, 260, 65 L. Ed. 2d 106, 112, 100 S. Ct. 2138, 2141; see also Michelman, Takings, 1987, 88 Colum. L. Rev. 1600 (1988).) In this case, the City’s ordinance did not deny to the Association all economically viable uses of its land. The record reflects that under the R2 classification assigned to the property, the following uses are permitted, among others: (1) single-family detached dwellings; (2) agricultural uses; (3) cemeteries; (4) churches, rectories, parish houses; (5) convents and monasteries; (6) golf courses; (7) home occupations; (8) libraries; (9) day care centers; (10) parks and playgrounds; and (11) schools. Of these permitted uses, the Association only presented evidence on the issue of economic viability as to single-family residences and cemetery uses; no evidence was presented, for example, to the effect that a nursery, as a permitted agricultural use, would not be an economically viable use of the property. In this regard, we note that the record shows that the one-acre segment of the property which the Association purchased in 1919 contained facilities from which the Association commercially operated a greenhouse and monument business. Both of these operations sold to the public, with the greenhouse business continuing until 1955. Again, nothing in the record demonstrates that the City’s ordinance precludes the Association from using the property for this use or any of the other permitted uses under the R2 classification. For this reason, the cases the Association cites are clearly distinguishable. In each of those cases, the ordinance limited the use of the property in such a way as to prohibit the property owner from making any use of its property. Corrigan v. City of Scottsdale (1986), 149 Ariz. 538, 720 R2d 513 (property limited to open space uses); Rippley v. City of Lincoln (N.D. 1983), 330 N.W.2d 505 (public use zone ordinance); Sheen v. Evesham Township (1982), 184 N.J. Super 11, 445 A.2d 46 (woodlands environmental protection zone ordinance); Burrows v. City of Keene (N.H. 1981), 432 A.2d 15 (conservation district); City of Austin v. Teague (Tex. 1978), 570 S.W.2d 389 (scenic easement).

The conclusion that we have reached is not changed even if we broadly interpret the “buffer” requirement. Once given a broad interpretation, we agree with the Association that the construction of single-family residences would not be possible. Nevertheless, even absent the ability to construct single-family residences, the Association would remain free to develop its property in accordance with the other permitted uses. A different situation would perhaps arise if single-family residences were the only permitted use. In that situation, the “buffer” would deny to the Association economically viable use of the property. Because we are not faced with that situation, we conclude that the circuit court properly concluded that the City’s ordinance occasioned upon the Association only a mere diminution in value, rather than a denial of all economically viable use of the property.

For the forgoing reasons, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

MANNING, P.J., and O’CONNOR, J., concur.

      The North River Commission has filed an amicus curiae brief in support of the City. The Commission is an Illinois not-for-profit corporation which acts as an umbrella organization for various community groups in the area encompassing the property.


author: JUSTICE McNAMARA

text:
    STANLEY MARSZALEK, JR., Plaintiff-Appellee, v. JANET KELENSON et al., Defendants-Appellants.
    First District (6th Division)
    No. 1—91—0862
    Opinion filed April 12, 1991.
    Johnson, Schaaf & Jones, of Chicago, for appellants.
    John M. O’Malley, State’s Attorney, and Paul Sengpiehl, both of Chicago, for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

Defendants, Janet Kelenson and the Electoral Board of the Village of Oak Park, appeal from a circuit court order removing Kelenson’s name as a candidate for the Board of Trustees of the Oak Park Library on the April 2, 1991, ballot. Plaintiff, Stanley Marszalek, Jr., filed a number of objections to Kelenson’s petitions for nomination, including an allegation that she was an improper circulator because she was registered to vote in her former married surname and her candidacy on the petition for nomination appeared in her maiden surname. The electoral board found that Kelenson was a qualified registered voter when the petitions were circulated and that there was no intent to commit fraud. The circuit court reversed the electoral board’s decision and held that Kelenson’s name should not appear on the April 2, 1991, ballot because her petitions for nomination were invalid.

The undisputed facts are as follows. Kelenson testified that she used her former married name (Janet K. Nemvalts) professionally, and her maiden name (Janet Kelenson) in the Oak Park community. Kelenson is currently married to Douglas Fager. (Kelenson’s current married surname is not at issue in this appeal.)

Kelenson prepared petitions for nomination in her maiden surname (Kelenson), and circulated them on January 11, 12 and 15, 1991. At the time the petitions were initially circulated, Kelenson was registered to vote under her former married name (Nemvalts). On January 15, 1991, the last day the petitions were circulated, Kelenson reregistered to vote in her maiden surname. On January 18, 1991, Kelenson filed the petitions with the Oak Park Village clerk under the reregistered name of Janet Kelenson. Kelenson used her maiden surname on other election documents, including her statement of candidacy and statement of economic interest.

On February 13, 1991, the electoral board found that the signature of Janet Kelenson as circulator on the petitions for nomination satisfied the requirement of the Illinois Election Code (Ill. Rev. Stat. 1989, ch. 46, par. 1—1 et seq.) because circulator was, in fact, a qualified, registered voter within the district in which she circulated petitions. The electoral board found that there was no intent to commit fraud on the part of Kelenson.

The circuit court reversed the holding of the electoral board, finding that the use of a surname different than the surname under which a voter is registered challenged the integrity of the electoral process and created chaos to those attempting to administer the election laws. The circuit court found that legislative intent required that a circulator be a registered voter.

The sole issue on appeal is whether Kelenson, as circulator, was a registered voter within the context of section 10 — 4 (Ill. Rev. Stat. 1989, ch. 46, par 10—4). That statute provides that in order for a petition for nomination to be valid, a registered voter must fulfill certain obligations which include:

“At the bottom of each sheet of such petition shall be added a statement, signed by a registered voter of the political division for which the candidate or candidates shall be nominated; stating the street address or rural route number of the voter *** certifying that the signatures on that sheet of the petition were signed in his presence; certifying that the signatures are genuine ***.” Ill. Rev. Stat. 1989, ch. 46, par. 10 — 4.

Plaintiff asserts that there is a mandatory duty to change voter registration if there is a name change and that failure to comply is grounds for disqualification from voting. Section 6 — 54 (Ill. Rev. Stat. 1989, ch. 46, par. 6—54) provides in relevant part:

“Any registered voter who changes his or her name by marriage or otherwise, shall be required to register anew and authorize the cancellation of the previous registration.”

Plaintiff maintains that Kelenson’s failure to reregister to vote in her maiden surname prior to the time that she began circulating the petitions renders them invalid because she was not a registered voter.

Kelenson contends that she was a registered voter when she began circulating the petitions, and that she was properly registered in the same name that appeared on the petitions when they were filed on January 18, 1991. Kelenson further argues that by reregistering in her maiden surname on January 15, 1991, prior to the time the petitions were filed, her timely actions demonstrated substantial compliance with section 6 — 54.

Review of the short record in this case indicates that when Kelenson circulated her petitions, she qualified as a registered voter as required by section 10 — 4. At the time the petitions were initially circulated, Kelenson held herself out as Janet Kelenson, the name by which she was known in the Oak Park community. Kelenson was a registered voter at all times during the circulation of the petitions, and followed the statutory requirements of registering anew and authorizing cancellation of the previous registration before her name was made a matter of public record on January 18,. 1991. We note that section 6 — 54 does not include- any specific time period within which reregistration following marriage must occur. More importantly, Kelenson was a registered, voter in her maiden name, the same name that appeared on the petition as a candidate, when she signed the affidavit on the petition certifying that the registered voters and their respective addresses on the petitions were genuine.

Plaintiff relies upon Havens v. Miller (1981), 102 Ill. App. 3d 558, 429 N.E.2d 1292, as support for his position that Kelenson’s failure to comply with the mandatory requirements of section 10 — 4 renders the petitions invalid. We find, however, that Havens is distinguishable, since in that case the circulator failed to certify under oath that he believed the correct residence addresses were given by signers of nominating petitions. Similarly, Schumann v. Kumarich (1981), 102 Ill. App. 3d 454, 430 N.E.2d 99, also cited by plaintiff, is distinguishable on its facts. In Schumann, this court found that a circulator’s attestation that voters are “qualified” is insufficient to comport with the section 10 — 4 requirements pertaining to registered voters.

In this case, there is no evidence that any of the registered voters’ names or addresses found on Kelenson’s petitions were fraudulently obtained, nor that Kelenson had any intent to defraud the electoral board.

We conclude, therefore, that Kelenson was a registered voter within the context of section 10 — 4 when she filed the nominating petitions on January 18, 1991, and should not be prevented from participating as a candidate on the April 2, 1991, ballot. Illinois courts view the right of a citizen to hold political office as a valuable one, not to be prohibited or curtailed except by plain provisions of the law. McGuire v. Nogaj (1986), 146 Ill. App. 3d 280, 496 N.E.2d 1037.

For the foregoing reasons, the order of the circuit court of Cook County removing Kelenson’s name from the ballot is reversed. We reinstate the electoral board’s decision that Kelenson’s name appear on the April 2, 1991, ballot as a candidate for the Board of Trustees of the Oak Park Library.

Judgment reversed.

EGAN and LaPORTA, JJ., concur.

      This opinion conforms to an order of this court entered on March 22,1991.


author: JUSTICE O’CONNOR

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM GONZALEZ, Defendant-Appellant.
    First District (1st Division)
    No. 1—89—0808
    Opinion filed April 15, 1991.

      Michael J. Pelletier and Maria A. Harrigan, both of State Appellate Defender’s Office, of Chicago, for appellant.
    John M. O’Malley, State’s Attorney, of Chicago (Renee G. Goldfarb and Guy L. Miller IV, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Following a jury trial, defendant William Gonzalez was found guilty of unlawful use of a weapon by a felon and sentenced to 10 years’ imprisonment. Defendant raises three issues on appeal: (1) whether his constitutional right against self-incrimination was violated when the State, during rebuttal closing argument, referred to his failure to testify at trial; (2) whether the trial court’s imposition of an extended-term sentence constituted a double enhancement where the misdemeanor offense was enhanced to a felony by one prior conviction, and the extended term was based on a separate prior felony conviction; and (3) whether his sentence was excessive.

At trial, police officer Patricia Dwyer testified that about 12:45 a.m. on September 6, 1988, she and her partner, Vince Mancini, were on patrol in an unmarked vehicle in the vicinity of 3200 West Evergreen in Chicago when she observed defendant walking on the street. She stated that she knew defendant and that defendant knew her to be a police officer. As the officers slowed down and approached defendant, Officer Dwyer saw defendant reach into his waistband, pull out a revolver, throw it to the ground and continue walking. She arrested defendant while her partner retrieved the loaded gun. Officer Mancini corroborated Officer Dwyer’s testimony.

The parties then stipulated that at the time of the incident defendant was a convicted felon.

Neftaly Figueroa testified that defendant, his friend, was at his house for about five hours prior to the incident. About 12 a.m. he drove defendant to a friend’s house in the vicinity of 3200 West Evergreen. As he drove away, he observed the police apprehend defendant. Figueroa testified that he never saw defendant in possession of a weapon that evening.

During closing argument defense counsel suggested that the officers planted the gun on defendant and questioned why the gun was not checked for fingerprints. In rebuttal, the State argued:

“Fingerprints, comes [sic] on, why not videotape and then what’s the next question, it’s dumb, the officer saw him with it, he saw him take it out of his waistband, saw him throw it down to the ground, he recovered it and never lost sight of it, what are we talking about here, you pass the gun around back there and the next person is going to ask for your fingerprints?
Come on, he knows he touched it, you know you touched it, he can come in here and take an oath, these are sworn police officers that [sic] took an oath.”

After the jury found defendant guilty, a sentencing hearing was conducted. Aggravating evidence cited by the State included defendant’s prior convictions for unlawful use of weapons in 1987, aggravated battery in 1980 and robbery in 1979. Mitigating evidence established that defendant was the father of four children and had been steadily employed prior to his arrest.

Defendant first argues that the State’s rebuttal-argument reference to defendant’s failure to testify violated his constitutional right against self-incrimination. The State responds that defendant failed to preserve this issue for appeal. We agree. The law provides that both trial objection and a written post-trial motion raising the issue are required for alleged errors that could have been raised during trial. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) This waiver rule applies to constitutional as well as to other issues. (People v. Precup (1978), 73 Ill. 2d 7, 16, 382 N.E.2d 227.) Although Supreme Court Rule 615(a) provides that defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court (134 Ill. 2d R. 615(a)), this rule does not operate in the nature of a general saving clause preserving for review all errors affecting substantial rights whether or not they have been brought to the attention of the trial court. (People v. Precup, 73 Ill. 2d at 16.) In the present case, defendant waived the issue by failing to object at trial and in his motion for a new trial. Further, we do not find that the plain error rule mandates that we consider the issue. The purpose of the rule is to correct serious errors which may have denied the accused a fair trial. (People v. Priola (1990), 203 Ill. App. 3d 401, 417, 561 N.E.2d 82.) The doctrine will be applied in criminal cases if the evidence was closely balanced or the alleged error was so serious that it deprived defendant of a fair trial. (People v. Priola, 203 Ill. App. 3d at 417.) Only where the errors are so inflammatory that defendant could not have received a fair trial, or so flagrant as to threaten deterioration of the judicial process, will we relax the waiver rule. (People v. Hayes (1988), 173 Ill. App. 3d 1043, 1049, 527 N.E.2d 1342.) Evidence of defendant’s guilt in the instant case was overwhelming, and the challenged comments did not so prejudice defendant as to have denied him a fair trial.

Assuming arguendo that the issue was not waived, we find that the State’s remarks made during rebuttal argument did not constitute reversible error. In reaching this decision we are guided by the court’s ruling in People v. Dixon (1982), 91 Ill. 2d 346, 350, 438 N.E.2d 180:

“The appropriate test for determining whether a defendant’s right to remain silent has been violated is whether ‘the reference [was] intended or calculated to direct the attention of the jury to the defendant’s neglect to avail himself of his legal right to testify.’ [Citations.] The prosecutor may comment on the uncontradicted nature of the State’s case [citations], and, where motivated by a purpose of demonstrating the absence of any evidentiary basis for defense counsel’s argument rather than a purpose of calling attention to the fact that defendant had not testified, such argument is permissible [citation]. Moreover, a defendant cannot ordinarily claim error where the prosecutor’s remarks are in reply to and may be said to have been invited by defense counsel’s argument.”

Even where remarks are improper, they will not be considered reversible error unless they constitute a material factor in the defendant’s conviction or result in substantial prejudice to the accused. (People v. Cook (1990), 201 Ill. App. 3d 449, 461, 558 N.E.2d 1268.) Improper remarks may be considered harmless error if there is overwhelming evidence of defendant’s guilt. People v. Cook, 201 Ill. App. 3d at 461.

Applying these principles to the case before us, we find that the State’s comment was invited by defense counsel’s argument suggesting that the police officers planted the gun on defendant, and that the challenged comment was not made for the purpose of calling attention to defendant’s failure to testify. We also refer to our earlier finding that the evidence of defendant’s guilt was overwhelming. It is noteworthy that the trial court instructed the jury that the “fact that the defendant did not testify should not be considered by you in any way in arriving at your verdict.” Accordingly, we conclude that the State’s comments did not prejudice defendant or operate to deprive him of a fair trial.

Defendant next contends that the trial court erred in using his prior convictions to justify an extended-term sentence (Ill. Rev. Stat. 1989, ch. 38, par. 1005—5—3.2(b)), where those same convictions were used to enhance the offense of unlawful use of a weapon from a misdemeanor to a felony. He reasons that since his status as a felon had been used to enhance the charge against him, the use of his prior convictions to impose an extended term was an improper double enhancement. Review of pertinent - case law indicates that the courts are divided on this issue. In People v. Hobbs (1981), 86 Ill. 2d 242, 427 N.E.2d 558, the supreme court held that it is improper for a court to impose an extended-term sentence where the sentencing offense is a misdemeanor enhanced to a felony by the same prior conviction which would allow the extended-term .sentence. In explaining its ruling, the court reasoned that the extended-term sentencing statute is intended to severely punish recidivists convicted of separate felonies within the same 10-year period where the latest offense consists of conduct which itself constitutes a felony. (People v. Hobbs, 86 Ill. 2d at 246.) Several cases decided after Hobbs have extended that holding to preclude an extended-term sentence in any case where the sentencing offense is a misdemeaner enhanced to a felony regardless of what prior conviction is used to authorize it. People v. Hurd (5th Dist. 1989), 190 Ill. App. 3d 800, 546 N.E.2d 1096; People v. Nally (2nd Dist. 1985), 134 Ill. App. 3d 865, 480 N.E.2d 1373; People v. Grayson (1st Dist. 1983), 119 Ill. App. 3d 252, 456 N.E.2d 664; People v. Spearman (3d Dist. 1982), 108 Ill. App. 3d 237, 438 N.E.2d 1320.

Dicta set forth in People v. Cissna (4th Dist. 1988), 170 Ill. App. 3d 398, 524 N.E.2d 268, reflects the opposite position that has been subsequently followed by that district (see People v. Roby (4th Dist. 1988), 172 Ill. App. 3d 1060, 527 N.E.2d 623). In Cissna, the defendant was sentenced to the maximum non-extended-term sentence, although the trial court believed that he was eligible for an extended-term sentence based upon a prior misdemeanor that had been enhanced to a felony. The court concluded that the extended-term provision could have been used, stating:

“We note the legislature, when addressing enhanced misdemeanors, did not indicate they could be penalized the same as a felony, but, in fact, defined them as a felony. (See Ill. Rev. Stat. 1985, ch. 38, par. 16-1, 16A-10, 24-1.) The decision concerning what conduct is a felony and what conduct is a misdemeanor is a legislative one. Accordingly, it is clear the legislature intended that once a felony conviction is entered, whether that conviction started as a pure felony or an enhanced misdemeanor, it can be used to qualify a defendant for an extended-term sentence.” (Cissna, 170 Ill. App. 3d at 401.)

Applying this reasoning, the court in Roby concluded that a misdemeanor conviction can be enhanced to a felony conviction and then become the subject of an extended-term sentence where separate prior convictions are used for each step. The court in Roby relied on the following language from Hobbs:

“It is irrelevant that the 1978 misdemeanor theft conviction could also have served under section 16 — 1(e) to escalate the 1979 theft into a felony, leaving the 1978 felony theft conviction to be used to extend the sentence, for the jury was instructed only as to the prior felony conviction and its verdict was based thereon.” (Emphasis in original.) (People v. Hobbs, 86 Ill. 2d at 246.)

However, in People v. Hurd (190 Ill. App. 3d at 803), the court recognized but declined to follow the reasoning of the Roby court, stating, “[w]e agree that Hobbs precludes an extended term, especially as in the case at bar, where defendant’s prior theft is also a misdemeanor without enhancement.”

In determining which position to take on this issue, we are guided by People v. Tackett (4th Dist. 1988), 169 Ill. App. 3d 397, 523 N.E.2d 647, appeal denied (1988), 122 Ill. 2d 590, wherein defendant was convicted of unlawful use of weapons by a felon stemming from his possession of a shank while an inmate at a penal institution. The defendant cited Hobbs and contended that the use of prior convictions as an aggravating factor constituted double enhancement because the prior convictions were an element of the offense of unlawful use of a weapon by a felon. The court rejected this argument, finding the situation before it distinguishable from Hobbs. The court stated:

“The defendant here was convicted of three prior felonies. At trial, the State introduced a certified statement of conviction for all three convictions (murder, armed robbery, home invasion). The introduction of such evidence was necessary as a conviction of a felony is an element of the offense of unlawful use of weapons by a felon. (Ill. Rev. Stat. 1985, ch. 38, par. 24—1.1.) Since the prior felony was an inherent element of the offense, it cannot be said that it was used for purposes of enhancement. Enhancement occurs where a prior offense is used to increase a penalty, not to create an offense. Thus, the double enhancement concept is inapplicable here.” People v. Tackett, 169 Ill. App. 3d at 405.

In the instant case, defendant’s criminal history included prior felony convictions for aggravated battery and robbery. The indictment charging defendant with the felony offense of unlawful use of a weapon referred to defendant’s prior robbery conviction as the basis for charging him with a felony rather than a misdemeanor. During trial, the parties stipulated that defendant was a convicted felon. It is clear from the record that when the jury found defendant guilty, it was relying on his prior robbery conviction. Therefore, his conviction for aggravated battery provided the basis for imposing an extended-term sentence. Moreover, since a trial judge is presumed to know the law (People v. Sosa (1990), 195 Ill. App. 3d 828, 552 N.E.2d 1298), we may properly conclude that when the trial court in the present case imposed an extended-term sentence it was relying on the aggravated battery conviction and not the robbery conviction. This resolution of the issue is in accord with the analysis in Tackett, and we conclude that because the prior felony of robbery was an element of the offense, no double enhancement occurred here. Thus we find Hobbs inapplicable, and we reject those cases extending Hobbs to bar extended terms for a misdemeanor enhanced to a felony by a prior conviction even where separate prior felony convictions could have supported an extended-term sentence.

We are also not persuaded that when the legislature created the separate felony offense of unlawful use of a weapon by a felon it contemplated that such an offender could never be eligible for extended-term sentencing pursuant to section 5 — 5—3.2(b). We do not construe Hobbs as requiring such a result. We agree with the fourth district’s determination in Roby that separate prior felony convictions may be utilized to impose an extended-term sentence when the sentencing offense has been rendered a felony based upon a prior conviction not relied on to impose the extended-term sentence.

The last contention raised by defendant is that the 10-year extended-term sentence was excessive in light of the nature of the offense, his lack of a recent criminal history and his potential for rehabilitation. He explains that the fact that seven years have passed since his last conviction demonstrates his rehabilitative potential. He also suggests that the offense was not a significantly serious one since he merely possessed a gun and did not threaten or harm anyone.

Defendant was convicted of a Class 3 felony. (Ill. Rev. Stat. 1987, ch. 38, par. 24—1.1(d).) The extended-term sentence for a Class 3 felony shall be not less than five years and not more than 10 years. (Ill. Rev. Stat. 1987, ch. 38, par. 1005—8—2(a)(5).) The trial court imposed the maximum sentence permitted by statute. Our consideration of this issue is guided by the following general principles set forth in People v. Neal (1988), 125 Ill. 2d 291, 297-98, 531 N.E.2d 366:

“Sentencing judges are vested with wide discretion so that reasoned judgments as to the penalty appropriate to the particular circumstances of each case can be accomplished. [Citations.] However, that discretion is not unfettered.
Reviewing courts have the power and authority under Supreme Court Rule 615(b)(4) (107 Ill. 2d R. 615(b)(4)) to reduce a sentence imposed by the trial court. In a line of cases, this court has consistently held that the imposition of sentence is a matter of judicial discretion and the standard of review to determine whether a sentence is excessive is whether the trial court abused that discretion. [Citations.] The reasoning is, of course, that the trial court is in the best position to consider, inter alia, credibility, demeanor, general moral character, mentality, social environment, habits and age. [Citation.] However, the mere fact that the trial court has a superior opportunity to make a determination concerning final disposition and punishment of a defendant does not imply that a particular sentence imposed is always just and equitable. [Citations.]
Accordingly, a reviewing court will not substitute its judgment for that of the trial court merely because it would have balanced the appropriate sentencing factors differently. [Citation.] Rather, reviewing courts exercise the authority granted under Rule 615(b)(4) cautiously, and the scope of an appellate court’s examination of a sentence imposed by the trial court is limited to whether the record discloses that the trial court abused its discretion.”

The presentence investigation report reviewed by the trial court in the instant case indicated that defendant was 33 years old and had been living with the mother of his four children for the past five years. His criminal record included a 1980 conviction for aggravated battery, a 1978 unlawful use of weapons conviction, and a 1973 robbery conviction. Defendant was paroled in 1983 after serving three years of an eight-year sentence for the aggravated battery conviction. Defendant was employed by a construction company for one month prior to his incarceration for the current offense. The trial court’s sentence reflects defendant’s criminal record and is consistent with the intent of the extended-term sentencing statute which is to severely punish recidivists. (People v. Hobbs, 86 Ill. 2d 242, 427 N.E.2d 558.) Consequently, we find no abuse of discretion. Moreover, since we may not substitute our judgment for that of the trial court merely because it may have been possible to balance the appropriate sentencing factors differently (People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541), we find no basis for reversing defendant’s 10-year sentence.

For the reasons stated above, the judgment of the circuit court is affirmed. Pursuant to People v. Nicholls (1978), 71 Ill. 2d 166, 374 N.E.2d 194, we grant the State’s request and assess defendant $50 as costs of this appeal.

Judgment affirmed.

CAMPBELL and BUCKLEY, JJ., concur.