author: JUSTICE BOWMAN JUSTICE GEIGER,

text:
    SANDRA DiBENEDETTO, Special Adm’r of the Estate of Scott A. DiBenedetto, Deceased, Plaintiff-Appellant, v. FLORA TOWNSHIP, Defendant-Appellee.
    Second District
    No. 2—90—0762
    Opinion filed October 18, 1991.

      GEIGER, J., dissenting.
    Gregory E. Barrett, of Schlueter, Ecklund, Olson, Barrett & Moore, of Rockford, for appellant.
    Joette S. Doran and Sarah Hansen Sotos, both of Knight, Hoppe, Fanning & Knight, of Des Plaines, and Kathryn M. James, of Judge & James, Ltd., of Chicago, for appellee.
   JUSTICE BOWMAN

delivered the opinion of the court:

Plaintiff, Sandra L. DiBenedetto, as special administrator of the estate of Scott A. DiBenedetto, deceased, appeals from an order of the circuit court of Boone County which dismissed with prejudice her complaint against defendant, Flora Township. The issue raised on appeal is whether the trial court erred in dismissing plaintiff’s amended complaint for failure to state a cause of action in accordance with section 2 — 615 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 615).

On January 12, 1990, plaintiff filed her amended complaint containing the following allegations: that defendant is a municipal corporation located in Boone County, Illinois, which owns and maintains a system of township roads, highways and rights-of-way within its boundaries, including Wheeler Road; that on or about January 25, 1989, plaintiff’s decedent was operating a motor vehicle traveling south on Wheeler Road, in Flora Township, south of the intersection of Wheeler Road and Cherry Valley Road; that driving conditions were wet, and there was dense fog and complete darkness; that there were no street or highway lights in this area; that the vehicle operated by plaintiff’s decedent entered the shoulder area on the east edge of the paved portion of the road and immediately overturned onto its roof killing the decedent; that at and near the area of the occurrence, Wheeler Road has a width of only 18 feet, a speed limit of 55 miles per hour and no center line or other lane markings; that approximately five to seven feet from the east edge of the paved portion of the road, on the shoulder portion of the road, for a distance of approximately one-quarter of a mile in the area of the occurrence, a deep ditch runs parallel to the pavement of the road; that the ditch drops at a 45- to 90-degree angle off the shoulder of the road and is five to six feet in depth; and that the ditch is entirely within the Wheeler Road right-of-way owned and maintained by defendant.

The amended complaint further alleged that defendant was negligent in that it:

“a. Maintained its right-of-way on Wheeler Road in such a manner as to place or permit to be placed a ditch on its said right-of-way which ditch is a danger to traffic using Wheeler Road by reason of its severe dropoff [sic] and extreme close proximity to the east edge of the pavement of Wheeler Road.
b. Failed to remedy or correct the condition created in its right-of-way along said Wheeler Road by the existence of said ditch.
c. Failed to erect a suitable guard rail [sic] or barricade to protect traffic using Defendant’s right-of-way from injury or death from entering said ditch despite the reasonable foreseeability that some persons operating vehicles along Wheeler Road and its right-of-way may enter the area of the right-of-way upon which the ditch is located.
d. Failed to provide suitable and adequate warning to the motoring public of the existence of said ditch and the hazard attendant therewith.”

It was also alleged that, prior to the occurrence involving plaintiff’s decedent, at least one accident had occurred wherein a car had entered the same ditch and that complaints had been made to defendant about the existence of the ditch.

Plaintiff sought damages for the alleged wrongful death of the decedent under the provisions of section 2 of the Wrongful Death Act (Ill. Rev. Stat. 1989, ch. 70, par. 2).

Defendant filed a motion to strike and dismiss the amended complaint pursuant to section 2 — 615 of the Code. A hearing was held regarding defendant’s motion. No transcript of the hearing has been included in the record. However, the memorandum of decision prepared by the trial court states that plaintiff elected to withdraw her allegations of negligence contained in paragraph 9(c) of the amended complaint (failure to erect a guardrail or barricade) and paragraph 9(d) of the amended complaint (failure to warn). Plaintiff acknowledges this in her appellate brief.

The trial court noted in the memorandum of decision that the complaint does not allege that the paved roadway in question is other than straight, flat and in good physical condition. As the only hazard alleged was the existence of a deep ditch and its proximity to the roadway, the court concluded that the magnitude of the duty which would be imposed on defendant to prevent this type of hazard outweighed the other relevant factors in making a duty determination. The court stated:

“Plaintiff in her brief concedes that it would be absurd to require that all ditches be removed from rural roads. Yet she states that a township would still be liable ‘for a ditch *** on its property which a jury finds presents a foreseeable risk of harm to persons using its roadway.’ But this would be every ditch into which a motorist might drive if he left the roadway while blinded by weather conditions. In my judgment, this burden is simply too onerous to justify the imposition of a duty.”

An order was entered June 19, 1990, dismissing the amended complaint with prejudice.

Plaintiff contends on appeal that the dismissal of her amended complaint was error because the trial court improperly based its decisión on the “onerous consequences on the township if a duty were to be imposed,” rather than on the foreseeability of the occurrence alleged. Plaintiff asserts that the trial court, without evidence, could not properly conclude the nature and extent of the onerous consequences upon the Township and, therefore, could not determine as a matter of law that a duty should not be imposed in this situation. Plaintiff argues that the pertinent case law provides that a municipality’s duty to keep its streets, sidewalks and parkways in a reasonably safe condition is not limited, but extends to any part or portion thereof immediately adjacent thereto. Plaintiff cites Janssen v. City of Springfield (1980), 79 Ill. 2d 435, 450, Hennigs v. Centreville Township (1973), 56 Ill. 2d 151, 154, Long v. Friesland (1988), 178 Ill. App. 3d 42, 51, Predny v. Village of Park Forest (1987), 164 Ill. App. 3d 688, 697-98, and Michalak v. County of La Salle (1984), 121 Ill. App. 3d 574, in support of her position. Plaintiff further maintains that a duty should be imposed here because it was reasonably foreseeable that cars would be occupying the shoulder of the road. She contends that this is true, especially when “weather conditions affecting visibility” exist, because the road is “rather narrow” and the road surface itself is not marked.

Defendant responds that since the decedent was southbound on Wheeler Road and overturned in a ditch on the east edge of the road, the decedent obviously crossed onto the opposite lane of traffic and went off the opposite side of the road and into the ditch. Defendant contends that such occurrence is not reasonably foreseeable. Defendant further opines that the cases cited by plaintiff as imposing a duty on the township are distinguishable from the facts of this case. Defendant contends that those cases involved an unusual, unreasonably dangerous roadway condition such as: a traffic island projecting 5V2 feet into the east lane of the street (Janssen, 79 Ill. 2d at 438); a pile of gravel along a township road in a publicly owned area frequented by pedestrians and cyclists which caused the pedestrians to trip and fall (Hennigs, 56 Ill. 2d at 152); “an unsigned and hilly road which was not wide enough for two oncoming cars to pass each other safely and/or which was overhung by brush forcing drivers to drive near the center of the road and obscuring their vision” (Long, 178 Ill. App. 3d at 51-52); and a bicycle path hidden by bushes at the point where it intersected a service driveway of a shopping center (Predny, 164 Ill. App. 3d at 690). Defendant takes the position that no such unusual or unreasonably dangerous road condition was involved in this case.

In considering the law applicable to defendant’s motion, we note that a cause of action should be dismissed on the pleadings only if it is clearly apparent that no set of facts can be proved which will entitle the plaintiff to recover. (Burdinie v. Village of Glendale Heights (1990), 139 Ill. 2d 501, 504.) When the legal sufficiency of a complaint is challenged by a section 2 — 615 motion to strike or dismiss, all well-pleaded facts in the complaint must be taken as true, and “a reviewing court must determine whether the allegations of the complaint, when interpreted in the light most favorable to the plaintiff, are sufficient to set forth a cause of action upon which relief may be granted.” Burdinie, 139 Ill. 2d at 505.

“A complaint for common law negligence must set forth the existence of a duty owed by the defendant to the plaintiff, a breach of that duty and an injury proximately resulting from that breach.” (Widlowski v. Durkee Foods (1990), 138 Ill. 2d 369, 373; see also Dinges v. Gabardi (1990), 202 Ill. App. 3d 732, 735.) In this case, brought under the Wrongful Death Act, it is necessary that the complaint plead the duty owed by defendant to plaintiff’s decedent. (See Battisfore v. Moraites (1989), 186 Ill. App. 3d 180, 188.) “A duty requires a person to conform to a certain standard of conduct for the protection of another against an unreasonable risk of harm.” Widlowski, 138 Ill. 2d at 373.

Whether a duty existed is a question of law, and depends upon whether the parties stood in such a relationship to one another that the law imposes an obligation on the defendant to act reasonably for the protection of the plaintiff. (Ziemba v. Mierzwa (1991), 142 Ill. 2d 42, 47.) In considering whether a duty exists in a particular case, a court must weigh the foreseeability that defendant’s conduct will result in injury to another and the likelihood of an injury occurring, against the burden to defendant of imposing a duty, and the consequences of imposing this burden. (Ziemba, 142 Ill. 2d at 47.) A duty is owed where the occurrence involved is reasonably foreseeable. An occurrence is reasonably foreseeable if a reasonably prudent person could have foreseen the events which did transpire. If those events are “highly extraordinary” (Cunis v. Brennan (1974), 56 Ill. 2d 372, 376) or “tragically bizarre” or “unique,” then the occurrence is not reasonably foreseeable. Cunis, 56 Ill. 2d at 380-81 (Goldenhersh, J., dissenting).

We believe it is reasonably foreseeable that the condition of the road’s shoulder as alleged in the amended complaint, when combined with other factors, could result in injury to a motorist operating a vehicle on such shoulder. Examples of such factors would be a motorist deviating from the roadway due to illness or drowsiness, a tire defect, motor problems, or adverse weather conditions. Based on common experience, it is clear that one purpose of a highway shoulder is to permit motorists to deviate from the paved portion for any one of many reasons normally incident to vehicular travel. We do not consider the singular event of a motorist deviating from the paved portion of the roadway to the opposite lane’s shoulder to be “highly extraordinary,” “tragically bizarre,” or “unique.” In the case of Michalak v. County of La Salle (1984), 121 Ill. App. 3d 574, the court found a duty existed on the part of the county to use reasonable care in the maintenance of a guardrail alongside a paved highway even though plaintiff drove off the opposite side of the road and into the guardrail. Consequently, we conclude that defendant’s conduct of improperly maintaining the highway shoulder, as alleged in the complaint, could foreseeably result in injury to a motorist, such as plaintiff’s decedent, operating his vehicle on the shoulder.

We will next examine relevant public policy considerations in order to evaluate the burden and consequences of imposing a duty of proper maintenance on defendant. Courts generally focus on public policy considerations when it comes to ascertaining when a duty exists in a given situation. Robinson v. The Suitery, Ltd. (1988), 172 Ill. App. 3d 359, 363.

The public policy regarding Illinois’ highway system is essentially set forth in section 1 — 102 of the Illinois Highway Code (Code) (Ill. Rev. Stat. 1987, ch. 121, par. 1 — 102). The section constitutes a comprehensive statement of the many facets of legislation applicable to most public highways used for vehicular traffic. Section 1 — 102 provides, in part, that an integrated system of highways and streets is essential to the general welfare and to the agricultural, industrial, recreational and social development of the State and that accident reduction and safety is an urgent problem and proper objective of highway legislation. The Code provides for the construction, maintenance, and financing of the highway system and places responsibility for same on the State, counties, municipalities and' road districts. It is evident from the Code that securing a workable system of highways is a high priority of government. This priority is reflected in the vast amount of highway construction and maintenance work which is evident throughout the year to all Illinois motorists. Upon consideration of the facts alleged in the complaint before us, in light of the Code’s strong public policy statements and procedures for the construction, maintenance and financing of a system of highways, we cannot say that the burden and consequences of a duty of maintenance of the shoulder of highways would be onerous based upon the limited facts contained in the complaint.

The cases cited by Flora Township in support of its argument that it has no duty to maintain the shoulders of the highway under the facts set forth in the complaint are not persuasive. Defendant cites Battisfore v. Moraites (1989), 186 Ill. App. 3d 180, Kavanaugh v. Midwest Club, Inc. (1987), 164 Ill. App. 3d 213, and West v. Faurbo (1978), 66 Ill. App. 3d 815. We find defendant’s authority inapposite to the case before us because they essentially concern privately owned property which abuts a public highway and the nature and extent of the owner’s duty to maintain such property to prevent injury to vehicle operators who deviate from the highway onto the private property. The cited cases are not controlling on the nature and extent of the duty owed by a local governmental unit to maintain its road system for use by the motoring public.

As related above, a complaint in negligence must include an allegation that defendant’s negligent conduct proximately caused plaintiff’s injury. (Widlowski v. Durkee Foods (1990), 138 Ill. 2d 369, 373.) Flora Township claims that the plaintiff did not plead a proximate cause connection between the conditions of the ditch and the accident. Specifically, defendant states the complaint fails to indicate the cause for plaintiff’s car driving off the paved portion of the road onto the shoulder opposite the car’s direction of travel.

The question of proximate cause is normally an issue for the jury. (Kinsch v. Di Vito Construction Co. (1964), 54 Ill. App. 2d 149.)

“ ‘ “Proximate cause” is a term of art which encompasses the distinct concepts of cause in fact and legal cause. Determining whether the defendant’s conduct was a cause of plaintiff’s injury involves nothing more than an analysis of the facts. Once it is established that the defendant’s conduct has in fact been a cause of the injury, however, there remains the question whether the defendant should be legally responsible for what he has caused. As otherwise stated, the question is whether the policy of the law will extend defendant’s responsibility to the consequences which have in fact occurred.
Two tests are generally applied in determining the issue of causation in fact. Under the “substantial factor” test, the defendant’s conduct is a cause of an event if it was a material element and a substantial factor in bringing it about. Under the second test, commonly called the “but for” rule, the defendant’s conduct is not a cause of an event if the event would have occurred without it. [Citations.]’ ” Lindenmier v. City of Rockford (1987), 156 Ill. App. 3d 76, 89, quoting Kerns v. Engelke (1977), 54 Ill. App. 3d 323, 333.

For purposes of the cause-in-fact component of proximate cause, the complaint alleges that the defendant’s unreasonable maintenance of the ditch on the shoulder of the road was the proximate cause of plaintiff’s decedent’s automobile turning over and the driver’s resultant injuries and death. Defendant’s argument concerning a failure of the amended complaint to plead proximate cause is premised on the assumption that plaintiff’s complaint must state facts showing why he left the paved roadway. However, we believe that one permissible inference from the facts alleged in the complaint is that weather conditions, i.e., wet roads and/or dense fog, and/or darkness, caused plaintiff’s decedent to deviate off the paved portion of the road. Weather conditions can constitute one of numerous events reasonably foreseeable to defendant which would cause a motorist to leave the paved portion of a roadway and access the shoulder of the road area. Defendant relies on Long v. Soderquist (1984), 126 Ill. App. 3d 1059, and Sheehan v. Janesville Auto Transport (1981), 102 Ill. App. 3d 507, for the proposition that obstructions in or near the highway are merely conditions and not the legal or proximate cause of injury. In Long, plaintiff motorist crested a hill and lost control of his automobile’s movement due to icy road conditions. While out of control the car collided with defendant’s vehicle, which was stopped downhill partly on the roadway. The court reasoned that the placement of defendant’s vehicle could not be a proximate cause because plaintiff’s inability to control his car on the icy roadway was the sole cause of the collision. In Sheehan, plaintiff motorist struck a car parked in a designated, no parking zone, when he swerved to avoid an oncoming car which suddenly swerved into his path. In ruling that defendant’s parked car was not a proximate cause, the court reasoned that defendant’s parked car did not cause the other car to swerve into plaintiff’s path or cause plaintiff to swerve and strike a parked vehicle. The court further concluded that the fact defendant was parked in a no parking zone was of no consequence because the purpose of the ordinance establishing such zone was to facilitate the flow of traffic through the area and was therefore unrelated as a cause of the occurrence. In Long and Sheehan, the operator’s loss of control of the vehicle’s movement was found to be the sole proximate cause of the respective collisions. However, in the case before us, a reasonable fact finder could infer from the facts alleged in the complaint that plaintiff’s decedent was in control of his automobile’s movement when he drove onto the opposite shoulder of the road.

Further, we find persuasive the Michalak court’s reasoning on the determination of proximate cause in the context of a remote cause or independent condition since the adoption of the doctrine of comparative negligence in Illinois (see Alvis v. Ribar (1981), 85 Ill. 2d 1).

As pointed out (see Michalak, 121 Ill. App. 3d at 578) under the common-law doctrine of contributory negligence, the concept of remote cause or condition as part of the proximate cause analysis prevented the injustice that would result if an actor who created a condition of injury were liable for the full measure of damages even for acts remotely connected with the injury. With the adoption of comparative negligence in Illinois, the harsh effects of denying any recovery to an injured plaintiff were ameliorated when the superseding negligence of the defendant nullified the negligence of the plaintiff. Therefore, the need is diminished for a policy which protects the remotely negligent defendant from liability for the full measure of damages or for a policy that ameliorates the harsh effects of contributory negligence of the plaintiff. Cognizant of the changes wrought by the adoption of the doctrine of comparative negligence, courts have been less willing to label an actor’s conduct as a remote cause or condition of injury.

“Cases in which, prior to the adoption of comparative negligence, plaintiff might have lost under proximate cause rules, because the acts of plaintiff or a third part[y] [was] regarded as a ‘supervening cause,’ [might be reconsidered] because [the court] can [now] reach a ‘fair’ decision by apportioning some of the blame to [the] defendant and some to third parties or to the plaintiff himself.” V. Schwartz, Comparative Negligence §4.3, at 81-82 (1974).

Flora Township’s conduct is not so remote from the events leading to the death of plaintiff’s decedent that it can be said as a matter of law that maintaining a ditch six feet deep with a 90-degree drop-off five feet from the edge of the paved roadway was not a contributing cause of the death of plaintiff’s decedent.

As a final matter, since this case involves the various duties owed by a local governmental unit, we must consider the effect of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (Ill. Rev. Stat. 1989, ch. 85, par. 3— 102(a)). Our supreme court recently held that, even if not addressed in the trial court, “the Tort Immunity Act should control in any analysis of whether plaintiff’s complaint states a cause of action.” (Burdinie, 139 Ill. 2d at 510-11.) In Janssen v. City of Springfield (1980), 79 Ill. 2d 435, the court noted that the obligation of a local government “to maintain public highways within its boundaries in a safe condition” is codified in section 3 — 102 of the Tort Immunity Act. (Janssen, 79 Ill. 2d at 450.) The language of this section demonstrates the intention of the legislature to continue the common-law liability of a local government for failure to maintain its streets in a reasonably safe condition, provided the governmental entity has actual or constructive notice of the defect in time to have corrected the condition. (See Horton v. City of Ottawa (1976), 40 Ill. App. 3d 544, 548.) The Tort Immunity Act adopted the general principle that local governmental units may be liable in tort but placed limits on such liability with an extensive list of immunities based on specific governmental functions. Burdinie, 139 Ill. 2d at 506.

We note that, although defendant in this case has not raised the issue of immunity in its appellate brief, it apparently argued before the trial court that section 3 — 105(a) of the Tort Immunity Act (Ill. Rev. Stat. 1989, ch. 85, par. 3 — 105(a)) protected it from liability. The section provides:

“(a) Neither a local public entity nor a public employee is liable for an injury caused by the effect of weather conditions as such on the use of streets, highways, alleys, sidewalks or other public ways, or places, or the ways adjoining any of the foregoing ***. For the purpose of this section, the effect of weather conditions as such includes but is not limited to the effect of wind, rain, flood, hail, ice or snow but does not include physical damage to or deterioration of streets, highways, alleys, sidewalks, or other public ways or place or the ways adjoining any of the foregoing ***.” Ill. Rev. Stat. 1989, ch. 85, par. 3-105(a).

Under section 3 — 105(a) a local public entity is not liable for injuries which result from the effect of weather conditions, in and of themselves, on the use of streets and sidewalks. (See Lansing v. County of McLean (1978), 69 Ill. 2d 562, 572; Enriquez v. City of Chicago (1989), 187 Ill. App. 3d 1110, 1115; Bellino v. Village of Lake in the Hills (1988), 166 Ill. App. 3d 702, 708.) A municipality, therefore, cannot be liable for an injury caused only by weather conditions. As the amended complaint is factually postured, we cannot say that only a condition of the weather was the proximate cause of the occurrence resulting in the death of plaintiff’s decedent. Consequently, defendant is not relieved of liability by the Tort Immunity Act.

For the foregoing reasons, we find that the amended complaint against defendant was improperly dismissed.

The judgment of the circuit court is reversed, and the cause is remanded for further proceedings.

Reversed and remanded.

McLAREN, J., concurs.

JUSTICE GEIGER,

dissenting:

I respectfully dissent. In this case, the plaintiff’s decedent was killed in an automobile accident that occurred under wet driving conditions late in January; dense fog and complete darkness further complicated the circumstances. Under these extreme driving conditions, the decedent’s plaintiff’s car crossed over the opposite lane of a 55-mile-per-hour highway and overturned.

Based on those facts I, unlike the majority, find this case to be analogous to Long v. Soderquist (1984), 126 Ill. App. 3d 1059, 1064. In Long, we affirmed summary judgment for the defendants, finding that it was undisputed that the plaintiffs’ vehicle had slipped on an icy bridge at the crest of a hill and was therefore out of control when it collided with the defendants’ standing automobiles. (126 Ill. App. 3d at 1064.) Thus, we found that regardless of their precise placement, the defendants’ vehicles could not have been a proximate cause of the collision.

Given the harsh driving conditions here, plus the fact that the decedent driver’s automobile crossed over a lane of traffic and a five- to seven-foot-wide shoulder before it came to the township’s steep ditch, I cannot agree with the majority’s observation that a reasonable fact finder in this case could infer that the plaintiff’s decedent was in control of his automobile’s movement when he drove onto the opposite shoulder of the road. Rather, I would find that the record shows as a matter of law that the decedent’s automobile was out of control before it reached the ditch. The ditch here, like the defendants’ automobiles in Long, was a mere condition connected with the accident, not a proximate cause. Accordingly, I would affirm the trial court’s dismissal with prejudice.


source: Caselaw Access Project

author: Mr. JUSTICE SEIDENFELD

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Eugene Lee Newbury, Defendant-Appellant.
    (No. 73-230;
    Second District
    September 9, 1974.

      George Pease, Public Defender, of Waukegan (Michael J. Boyd, Assistant Public Defender, of counsel), for appellant.
    Jack Hoogasian, State’s Attorney, of Waukegan (James W. Jerz, of Model District State’s Attorneys Office, of counsel), for the People.
   Mr. JUSTICE SEIDENFELD

delivered the opinion of the court:

On August 1, 1969, defendant was convicted of the offense of murder and upon the recommendation of the jury sentenced to death. He appealed to the Illinois Supreme Court which affirmed his conviction but remanded the case to the Circuit Court of Lake County with directions to conduct a new hearing in aggravation and mitigation and to re-sentence the defendant to a sentence other than death. People v. Newbury (1972), 53 Ill.2d 228.

On March 21,1973, the defendant was re-sentenced to a minimum term of 50 years and a maximum term of 150 years imprisonment. He appeals from this judgment, contending that the court committed reversible error in not ordering a fitness hearing on its own motion prior to re-sentencing; and, alternatively, that the sentence is excessive and should be reduced.

Defendant’s trial counsel, the public defender, did not request a hearing to determine defendant’s fitness to be sentenced prior to the re-sentencing judgment entered below. (Ill. Rev. Stat. 1973, ch. 38, par. 1005 —2—1(a), (b).) But he contends that the court on its own motion should have ordered the hearing in the particular circumstances of the case.

Defendant was found competent to stand trial in 1969. Defendant claims, however, that the trial court was in error in allegedly relying upon 3-year-old psychiatric reports as a basis for not questioning the defendant’s fitness at the time of re-sentencing. Defendant relies on language quoted in Furman v. Georgia (1972), 408 U.S. 238, 288, 33 L.Ed.2d 346, 377-378, 92 S.Ct. 2726, 2751-2752, to the effect that awaiting execution in death row amounts to psychological torture which may lead to the onset of insanity. He reasons that this circumstance, coupled with what he characterizes as “apparent border-line insanity” at the time of his original trial, provided a clear basis for questioning defendant’s fitness to be re-sentenced.

The court denied defendant’s petition to have three psychiatrists testify prior to re-sentencing, but did permit defendant to be examined by Dr. Millett, a psychiatrist, who had testified at the original trial that defendant was psychotic. Subsequently, defendant’s counsel explained to the court that although he questioned defendant’s fitness, the defendant had explicitly instructed him not to request a fitness hearing. For the same reason, counsel stated, that he did not introduce the report of Dr. MiUett’s examination in the re-sentencing hearing. .

The circumstances that a defendant may possess a sociopathic personality and suffer from psychological and social disturbances, without more, are not sufficient to raise a bona fide doubt as to competency or fitness. See People v. McElroy (1970), 125 Ill.App.2d 237, 243.

Here, the defendant, in 1989, was found competent to stand trial. There was no testimony introduced in the re-sentencing hearing to support defendant’s present contention that he was unfit to be re-sentenced. There was no evidence, except for the fact of incarceration for a 3%-year period under a sentence of death, standing alone, that would place defendant’s fitness between the time of the original finding of competency and the re-sentencing hearing in question. The trial court had ample opportunity to observe the defendant at the re-sentencing hearing. The court stated that he was unimpressed with what he considered obvious tactics by defendant to convince the court that he was now unfit, and concluded that he had “no qualms about the defendant’s mental fitness.” On the record before us we are not justified in interfering with the court’s exercise of discretion.

The defendant’s alternative claim that the sentence of 50-150 years imprisonment is excessive is not persuasive. Defendant argues that he had led an exemplary life prior to committing this offense; was well educated, moderately religious, and had a seemingly bright future as a teacher. The defendant, however, murdered his fiancee under particularly horrible circumstances with no evidence which would tend to exculpate Mm aside from his unsuccessful defense of insamty at the original trial. See People v. Newbury (1972), 53 Ill.2d 228, 237.

The defendant refers to the Illinois Constitution, article 1, section 11, which provides that all penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizensMp. But the purpose of restoration is not to be given greater consideration than the seriousness of the offense in determining the penalty. People ex rel. Ward v. Moran (1973), 54 Ill.2d 552, 556-7.

The penalty imposed upon re-sentencing did not violate the spirit and purpose of the law and it was within the limits prescribed by the legislature. (Ill. Rev. Stat. 1973, ch. 110A, par. 615(b)(4); People v. Taylor (1965), 33 Ill.2d 417, 424.) We therefore affirm the re-sentencing judgment.

Affirmed.

T. MORAN, P. J., and RECHENMACHER, J., concur.


author: Mr. PRESIDING JUSTICE THOMAS J. MORAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Richard Curtis, Sr., Defendant-Appellant.
    (No. 72-226;
    Second District
    September 9, 1974.
    Ralph Ruebner and Adam Lutynsld, both of State Appellate Defenders Office, of Elgin, for appellant.
    Philip G. Reinhard, State’s Attorney, of Rockford, for the People.
   Mr. PRESIDING JUSTICE THOMAS J. MORAN

delivered the opinion of the court:

Charged by complaint with the offense of deceptive practices, the defendant pled guilty and was sentenced to 1 year at Vandalia. On appeal it is contended that the complaint was fatally defective in that it failed to specify the person defrauded.

The complaint charged that defendant committed the offense of “Deceptive Practice, in that he, with the intent to obtain control over property of TOTAL CONCEPT, 1420 North Main Street, Rockford, Illinois delivered to TOTAL CONCEPT a check for the payment of money in the amount of ($25.00) Twenty Five Dollars, drawn on the State Bank of Rockford, Illinois, with an intent to defraud and knowing at the time of delivering said check that it would not be paid by said depository in violation of Paragraph 17 — 1, Chapter 38, Illinois Revised Statutes.” Ill. Rev. Stat. 1971, ch, 38, § 17 — 1.

In order to be valid, a complaint must set forth the nature and elements of the crime charged. (Ill. Rev. Stat. 1971, ch. 38, § 111 — 3(a)(3).) The essential elements of the offense of deceptive practice are the intent to defraud and the intent to obtain control over property of another. (People v. Greer, 18 Ill.App.3d 617 (1974).) “Another” is defined as a “person.” (Ill. Rev. Stat. 1971, ch. 38, § 2 — 3.) A “person” is defined as an “individual, public or private corporation, government, partnership, or unincorporated association.” (Ill. Rev. Stat. 1971, ch. 38, § 2 — 15.) Defendant argues that from the language of the complaint it could not be determined that “Total Concept, 1420 North Main Street, Rockford, Illinois” was a “person” within the meaning of the statute and that the complaint therefore was fatally defective for having failed to charge an offense.

“Total Concept * * *” is no more a “person” than “Boren’s IGA Foodliner, * * *” (People v. Greer, supra), “Sully House Fine Furniture” (People v. Tenen, 132 Ill.App.2d 786, 787 (1971)), or “Day and Palin” (People v. Brakebill, 9 Ill.App.3d 691, 692 (1973)), and following these cases, the complaint would be fatally defective in failing to allege the essential elements that the defendant intended to defraud and obtain control of property of “another.” Recently, however, the supreme court found the Tenen case non-persuasive when, in People v. Mahle, 57 Ill.2d 279 (1974), it held the complaints for deceptive practices to be sufficient. There, the court merged the requirement that a complaint must allege the essential elements of the crime charged with the case law that finds a complaint sufficient if it “states specifically the elements of the offense with sufficient particularity to apprise accused of the crime charged and to enable him to prepare his defense and permit a conviction or acquittal to be pleaded in bar of a subsequent prosecution for the same offense, and, as stated by some courts, to indicate to the court the correct judgment to be pronounced on a verdict of guilty. [Citations.]””’ 57 IH.2d at 283.

We are bound by the decisions of our supreme court. In Mahle, supra, the court held that complaints of deceptive practices, naming “Streator Car Wash, Streator, Illinois,” and “Marmion’s Sinclair Service, Ottawa, Illinois,” were words sufficient to denote a “person.” We cannot distinguish that case from the one at bar and therefore find the identification of “Total Concept, 1420 North Main Street, Rockford, Illinois” sufficient to allege a “person” within the meaning of the statute.

Judgment affirmed.

SEIDENFELD and RECHENMACHER, JJ., concur.


author: Mr. JUSTICE HUNT

text:
    Stanley D. Flowers, Plaintiff-Appellant, v. The Village of Indian Creek, Defendant-Appellee.
    (No. 73-275;
    Second District
    September 9, 1974.
    Harold P. Block, of Waukegan, for appellant.
    Rosing & Carlson, of Waukegan (James T. Magee, of counsel), for appellee.
   Mr. JUSTICE HUNT

delivered the opinion of the court:

This is an appeal from an order of the Circuit Court of Lake County granting a motion to dismiss Count II of a complaint, which count requested a declaratory judgment, and from an order denying a motion for a new trial or to vacate and reconsider said ruling.

Plaintiff-appellant, Stanley D. Flowers, owned a tract of real estate in the Village of Indian Creek, a community of about 500 population, the defendant-appellee in this proceeding. Flowers sought to use the property for a residence and as a kennel and pet grooming business. It had been previously used as a tin-smithing business. It was now zoned residential.

In September, 1971, Flowers filed a petition addressed to the Zoning Board of Appeals requesting alternate relief that the ordinance be construed to allow the proposed use, or for a variance amendment to the ordinance, or that a special permit be granted, or that the property be rezoned, and for a permit. According to the complaint he was granted a hearing by the three-man Board of Appeals on October 25, 1971, which recommended to the Village Board of Trustees that the request for rezoning be denied, but that a special use permit be granted. The same day the Board of Trustees denied all requested relief.

Flowers filed a two-count complaint on November 24, 1971. Count I was under the Administrative Review Act and Count II for a declaratory judgment. The count for administrative review was conventional in form and charged the “said decision is erroneous, illegal and void, since it is contrary to and unsupported by the evidence introduced at the hearing.” No challenge was made concerning the constitutionality of the ordinance per se, or as applied to this property. Count II was for a declaratory judgment asking for a construction of the ordinance as void or unconstitutional as to this property, and in its entirety, or in the alternative a finding that the proposed use was within the ordinance, or for an order directing a rezoning of the property.

Answers were filed by the Village as to each count, denying the Board of Trustees acted contrary to the evidence, and denying the charges of invalidity or unconstitutionality of the ordinance.

On June 6, 1972, the parties appeared in court by their respective counsel. Each was prepared to present proof "under Count II and permit the court, without a jury, to take the Count I under advisement with the case and decide all of the issues in the complaint on the record made before the Zoning Board of Appeals and the evidence received in court for a declaratory judgment. After the opening statements the court directed the trial be split. It refused to hear any testimony on the declaratory judgment and took the administrative-review count under advisement, denying plaintiff’s oral motion to dismiss Count I and to proceed on Count II for declaratory judgment. On August 21,1972, the court entered an order denying the relief prayed for in Count I. The order states in part as follows:

“The decision of the Board of Trustees of Indian Creek denying plaintiff all the relief sought in his petition before the Planning Commission is supported by the evidence * * *.” (Emphasis added.)

The complaint for administrative review (Count I) was denied and judgment entered for the Village of Indian Creek.

Thereafter defendant filed a motion to dismiss Count II which was set for hearing January 11, 1973, with briefs to be submitted. On January 3, 1973, on motion of plaintiff, an extension of time was granted for briefs and rule was entered on defendant to produce a copy of the zoning ordinance. On March 20, 1973, the court granted defendant’s motion and Count II of the complaint was dismissed without a hearing. Plaintiff filed a motion to vacate this order which was denied. It is from this order the plaintiff appeals.

The motion to dismiss Count II, filed without first withdrawing the answer, charged that all of the issues had been, or could have been presented to the court under the administrative-review count, and the decision of the court under that count rendered moot the issues in Count II, and also that the administrative-review proceedings excluded any other form of relief available to the plaintiff.

On appeal plaintiff claims that the administrative-review count was a nullity because of the language of the ordinance, and therefore the order in Count I could not predispose the issues formed in Count II; that the two forms of relief are not mutually exclusive and are compatible; and that the issues in Count I, and the relief prayed for, are not the same as Count II and there can be no estoppel nor question of res judicata.

The excerpts of the zoning ordinance in the record include only sections 6.4 — 6.7, and 7 and 8. Section 6.4 defines the duties of the zoning officer. Section 6.5 entitled “Procedures: Conditional Use Permits, Variations and Amendments” in reality authorizes only conditional use permits (6.5 A) and amendments (6.5B). In each instance the action of the Zoning Board is advisory only to the Village Board of Trustees. The Zoning Board makes no “final decisions” under this ordinance. Any modifications as to use, and any amendments must be made by the legislative body, the Village Board.

Section 6.7, JUDICIAL REVIEW, adopts the Administrative Review Act (Ill. Rev. Stat. 1973, ch. 110, pars. 264 — 279) for: “All final administrative decisions of the Board of Appeals, etc.” It is not indicated whether the Zoning Board referred to in section 6.5 is the same body as the Board of Appeals in section 6.7 or the Planning Commission referred to elsewhere in this record. It is only important that all final decisions are made by the legislative body, the Village Board of Trustees, and the administrative decisions are advisory only.

Where the final action is taken by the legislative body it is not an administrative decision within the purview of the Administrative Review Act. The filing of a count under the Administrative Review Act procedures here was a nullity and the order purporting to affirm the actions of the Village Board of Indian Creek was void and without jurisdiction. Traders Development Corp. v. Zoning Board (1959), 20 Ill.App.2d 383, 156 N.E.2d 274.

In Artz v. Commercial National Bank (1970), 125 Ill.App.2d 86, 259 N.E.2d 813, petitioner requested a special use permit which required an act by the Peoria City Council after a hearing and recommendation by the City Planning and Zoning Commission. An appeal was taken from the action of the City Council under the Administrative Review Act. It was dismissed on motion by the trial judge, which was affirmed. The appellate court stated:

“The Administrative Review Act was created and designed to provide a means and a procedure for judicial review of administrative decisions of administrative agencies. The Act does not provide for judicial review of legislative acts of legislative bodies. While legislative acts can be reached in an appropriate case, e.g., through proceedings for declaratory judgment, such remedy and declaration was not sought in this case. Thus, it is neither for the trial court nor this court to pass on the merits of the allegations of the Plaintiffs-Appellants that might have been raised in a different proceeding.” 125 Ill.App.2d at 87-88.

See also Fitzpatrick v. City of Springfield (1973), 10 Ill.App.3d 317, 293 N.E.2d 712.

Here the question of the constitutionality of the ordinance was properly before the trial court in Count II of the complaint. Count I should have been dismissed on the courts own motion, or on the oral motion of plaintiff, which was made when the matter came on for hearing. Evidence should have been taken under Count II for declaratory judgment and a decision rendered accordingly.

The rufing of the trial court dismissing Count II of the complaint is vacated and set aside and the cause is remanded to the Circuit Court of Lake County for further proceedings not inconsistent with this opinion.

Reversed and remanded.

SEIDENFELD and RECHENMACHER, JJ., concur.

       6.5-A-2 “The Zoning Board may recommend approval or disapproval of the petition * *
      6.5- A-3 “* * * the Village Board shall either approve or disapprove the application.”
      6.5- B-2 “The Zoning Board shall consider and make recommendations on all proposed amendments.”
      6.5- B-3 “The Zoning Board shall make a report to the Village Board. No amendment shall be passed except by a majority vote of all members of the Village Board.”


author: Mr. JUSTICE STOUDER

text:
    Colleen A. Alvarado, Plaintiff-Appellee, v. John R. Alvarado, Defendant-Appellant.
    (No. 73-157;
    Third District
    September 5, 1974.
    Bradley J. Schwager, of Peter F. Ferracuti Associates, of Ottawa, for appellant.
    John Wolslegel, of Ottawa, for appellee.
   Mr. JUSTICE STOUDER

delivered the opinion of the court:

Defendant-appellant John Alvarado appeals from that part of a divorce decree awarding to plaintiff-appellee Colleen Alavarado full title to a 91.90-acre farm and residence.

The parties were married in 1951. In 1956 they moved in with plaintiff-wife’s mother in Ottawa who upon her death in 1958 devised her home to plaintiff and her sister. Plaintiff and defendant mortgaged plaintiff’s one-half interest and used the money to purchase wife’s sister’s one-half interest. In 1961 plaintiff’s father died and left to her and her sister a 91.90 acre farm. The Alvarados mortgaged her one-half interest and used the money to buy her sister’s one-half interest. Both these mortgages were signed by defendant-husband. In 1966 the Ottawa home was sold and after paying the mortgage the balance was applied toward building a house on the farm property.

In 1963 in connection with a pending divorce action instituted by plaintiff-wife defendant-husband executed quitclaim deeds to both the house in Ottawa and to the farm property. This action was never completed because the parties reconciled and lived together until 1971. The present action was commenced by plaintiff-wife in 1971.

The first issue involves the 1963 conveyance. It is plaintifFs contention that the conveyance by her husband constituted a gift to plaintiff of any interest of defendant in these properties. The issue is whether the trial court erred in finding that defendant conveyed a gift to plaintiff in this transaction. We hold that it was error for the court below to find that defendant made a gift of the two properties. The circumstances surrounding this conveyance rebut any presumption that might have been made regarding a gift from defendant to plaintiff, for the facts here show a lack of donative intent.

Husband contends further that the court erred when it failed to find that defendant owned a property interest in the marital residence and farm based upon special equities as were alleged in defendant’s amended answer to plaintiffs complaint. The applicable statute is section 17 of the Divorce Act (Ill. Rev. Stat. 1971, ch. 40, par. 18), which reads as follows, ‘Whenever a divorce is granted, if it shall appear to the court that either party holds the title to property equitably belonging to the other, the court may compel conveyance thereof to be made to the party entitled to the same, upon such terms as it shall deem equitable.” It should be noted here that the wife held sole legal title to the property in question. The trial court refused to apply the statutory provision. The issue presented by this appeal is not the applicability of section 17. The issue is whether the facts here demonstrate those special equities which can be deemed sufficient to justify the determination that defendant, even though not the titleholder, had an interest in the property in the name of plaintiff.

In the case of Everett v. Everett, 25 Ill.2d 342, 347, 185 N.E.2d 201, it was held regarding the special equities section of the Divorce Act that * * it must be alleged and proved by the spouse seeking a part or all of the property in the name of the other that he or she has furnished valuable consideration such as money or services other than those normally performed in the marriage relation which has directly or indirectly been used to acquire or enhance the value of the property.” Plaintiff-appellee does not dispute this general rule. It is therefore necessary to judge from the facts in this case whether the money and services contributed by defendant-husband were more than that merely normally contributed in the marriage relationship and also whether such services and money directly or indirectly enhanced the value of the property. We should note first that the proceeds from the sale of the Ottawa home were applied toward building the new home on the farm property. With regard to the Ottawa home defendant made substantial capital improvements, including plumbing, rewiring and remodeling, and he claims that the expenses for such work were paid from his income.

With regard to the farm property defendant claims the evidence shows: one, that the initial downpayment on the farm was derived from the sale of the home located in Ottawa to which defendant had substantially contributed; two, since the purchase of the farm defendant has farmed and improved the productivity of the land and used the proceeds from the farm harvest to pay the mortgage on the property; three, since the purchase of the farm defendant has also paid the mortgage on the property and residence from his earnings; and four, the home located on the farm was built through his physical labor and efforts since he personally installed the wiring, installed the plumbing, installed the furnace and completed all necessary tasks that arose in the completion of the residence. Defendant also claims that for 9 years he had been putting in 80 hours a week or better farming from 4:30 in the morning until 2 o’clock in the afternoon and then working from 3 o’clock in the afternoon until 11 o’clock in the evening at Libby-Owens Ford. The foregoing facts are not substantially in dispute.

Plaintiff-wife contends that the money contributed by her husband to the farm property actually came from a joint account. She did not begin working until 1968 and she made about $8,000 a year at least a part of which went into the joint account. All the farm proceeds went into the joint account.

We hold that the facts in this case demonstrate those special equities which can be deemed sufficient to justify a transfer of interest from the sole titleholder to the other party having an equitable interest in the property. We do not attempt on this appeal to determine how much of an interest exists,

An issue was also raised regarding a possible implied partnership between defendant-husband and plaintiff-wife. Due to our holding there were special equities requiring a conclusion that defendant-husband had an equitable interest in the property, it is not necessary for us to deal with the contention there was an implied partnership relationship.

For the foregoing reasons that part of the decree granting full title to the farm and residence to the plaintiff-wife is reversed and remanded to the trial court for proceedings in accordance with this opinion.

Reversed and remanded with directions.

SCOTT, P. J., and ALLOY, J., concur.


text:
      In re James Gallagher, a Minor—(The People of the State of Illinois, Plaintiff-Appellant, v. James Gallagher, a Minor, Respondent-Appellee.)
    (No. 73-184;
    Second District
    September 10, 1974.
    Jack Hoogasian, State’s Attorney, of Waukegan (John G. Radosevich, Assistant State’s Attorney, of counsel), for the People.
    Paul S. Chervin, of Waukegan, for appellee.


author: JUDGE EOVALDI

text:
    The People of the State of Illinois, Plaintiff-Appellant, v. Wendell W. Clancy, Defendant-Appellee.
    (No. 73-213;
    Second District
    September 11, 1974.
    John J. Bowman, State’s Attorney, of Wheaton (James F. Campion, Assistant State’s Attorney, of counsel), for the People.
    Gates W. Clancy, of Geneva, for appellee.
   JUDGE EOVALDI

delivered the opinion of the court:

This is an appeal from the decision of the Circuit Court of the Eighteenth Judicial Circuit, DuPage, County, Illinois, Helen Kinney, Judge Presiding, dismissing the People’s charge of an alleged. traffic violation of exceeding the speed limit.

The facts are not in dispute. Defendant is an attorney engaged in the active practice of law. On February 16, 1973, he was traveling to the courthouse in Wheaton concerning two court matters for which he was the attorney of record. On notice from a State trooper, defendant stopped his vehicle and advised the officer that he was an attorney on his way to court. The trooper informed the defendant that if he intended to post his operator’s license he could wait, as it would not take too long. The trooper completed the ticket and took the defendant’s license as bail.

On March 12, 1973, defendant appeared by his attorney in the Elmhurst Branch Court of the Eighteenth Judicial Circuit and orally moved that the trial court quash the ticket and warrant on the grounds of privilege from arrest. The People moved that the defendant’s motion be made in writing. The cause was continued to March 21, 1973, for ruling.

Thereafter, defendant filed a written motion praying that an order be entered quashing the arrest, warrant, and ticket and that said matter be dismissed with prejudice. The People filed an answer praying that the court dismiss the motion or in the alternative to set the matter for hearing. On March 21, 1973, the court entered an order reciting “that above cause be and is hereby dismissed on defendant’s claim of privilege.”

From that order the People have appealed and contend that the issues for review are: Does the privilege from arrest while traveling to court carry a resulting sanction of immunity from prosecution where that privilege is violated? and Does the applicable statute provide for a motion to dismiss the subject matter on the grounds that the privilege from arrest was violated?

The defendant disputes the nature of the case as presented by the People and contends that any question of abuse of privilege from arrest resulting in immunity from prosecution is not an issue since there was no such finding in the trial court. He contends that the only issue presented for review is: Was the order of dismissal entered in the trial court on defendant’s claim of privilege under the admitted facts correct?

We agree with the defendant’s contention. Both section 107 — 7(d) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1973, ch. 38, par. 107 — 7(d) and section 9 of the act on attorneys (Ill. Rev. Stat. 1973, ch. 13, par. 9) provide that attorneys shall be privileged from arrest while attending court and while going to and returning from court. Although this privilege can be waived (Wilson v. Nettleton, 12 Ill. 61; People v. Rickelman, 99 Ill.App.2d 136, 240 N.E.2d 708), the privilege was not waived in this case. The facts are that the privilege was urged at tire earliest opportunity and was reasserted at the call of the case in court.

The People contend that since section 114 — 1 through 114 — 14 the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1973, ch. 38, pars. 114 — 1 through 114 — 14) lack a specific provision for a motion to dismiss based on a violation of the privilege from arrest, a defendant cannot raise the point by a motion to dismiss. The committee comments to the Smith-Hurd Annotated Edition of the Illinois Revised Statutes (S.H.A., ch. 38, par. 114 — 1 (1970)) that under section 114 — 1, the problems of the motion to quash, plea in abatement, and plea in bar are combined and dealt with by a motion to dismiss. We hold that a motion to dismiss is a proper way to invoke the privilege from arrest.

While we feel that an advisory opinion in this case as to whether or not the attorney’s privilege from arrest while traveling to court carries a resulting sanction of immunity from prosecution where that privilege is violated would be only obiter dicta, we call attention to the fact that in the case at bar the circuit court did not rule that the dismissal constituted a bar to further prosecution. Also, the case of People v. Rickelman, supra, held that where a motion predicated on privilege from arrest was granted and the complaint dismissed, a conviction on a subsequently filed complaint for the same offense would be upheld.

We find that the judgment of the circuit court was correct and that judgment is hereby affirmed.

DIXON and SCOTT, JJ., concur.


text:
    The Board of Education of Addison School District No. 4, Du Page County, et al., Plaintiffs-Appellants, v. Merrill Gates, Superintendent, Educational Service Region, Du Page County, et al., Defendants-Appellees—(The Board of Education of School District No. 3, Du Page County, Defendant-Appellant.)
    (No. 74-37;
    Second District
    September 10, 1974.

      Robbins, Nicholas & Lifton, of Chicago (Jerome N. Robbins and Everett E. Nicholas, of counsel), for appellants.
    John J. Bowman, State’s Attorney, of Wheaton, and Klein, Thorpe, Kasson & Jenkins, of Chicago (Joseph A. Bonk, Assistant State’s Attorney, and Newell N. Jenkins and B. A. Zolna, of counsel), for appellees.
   Mr. JUSTICE SEIDENFELD

delivered the opinion of the court:

Plaintiffs, the Board of Education of Addison School District No. 4, Du Page County, and its individual members, brought actions for administrative review, certiorari, declaratory judgment and injunction to prevent the establishment of a Community Unit School District. Motions to dismiss were filed by the defendants, the Board of Education of Elmhurst Elementary School District Nos. 3 and 46; the Superintendent of the Educational Service Region of Du Page County, Merrill Gates; and the State Superintendent of Public Instruction, Michael Bakalis. The trial court granted defendants’ motions and plaintiffs appeal.

On August 10, 1972, a petition was filed by a committee of ten with the required superintendent, defendant Gates, pursuant to section 11 — 6 of the School Code (Ill. Rev. Stat. 1971, ch. 122, par. 11 — 6) requesting the call of an election for the purpose of voting for or against the establishment of a Community Unit School District comprising District No. 3, the major portion of District No. 46 and that portion of High School District No. 88 overlying the proposed territory. The plaintiffs in this action appeared before defendant Gates, the regional superintendent of schools of Du Page County, at the administrative hearing on the petition. After a hearing, defendant Gates granted the petition on December 4, 1972, and it was thereafter approved by the State Superintendent, defendant Bakalis.

Plaintiffs’ actions followed. On August 27, 1973, argument was heard and defendants’ motion to dismiss was granted on that date. On September 26, 1973, the Board of Education of School District No. 3 petitioned to be realigned as a party plaintiff in this suit. Realignment was denied by the trial court.

After the notice of appeal was filed we denied plaintiffs’ request for stays of the election to form the Community Unit District and to elect board members of the newly formed unit district.

Plaintiffs contend that the trial court erred in dismissing the complaint and refusing to review the record of the proceedings to form the new district. They argue first that the court erred in holding that they lacked standing to participate in the hearing before the regional superintendent of Schools of Du Page County and erred in holding that they had no right to seek a review of that decision and tire decision of the Superintendent of Public Instruction.

If none of the methods set forth in the complaint to review the decisions of the regional and state superintendent were proper, the court below lacked jurisdiction of the subject matter and its dismissal must be affirmed without regard to the numerous other issues raised by the parties. We therefore consider this as a threshold question, with particular references to the individual actions included in the complaint filed by the plaintiffs.

Administrative Review

The portion of section 11 — 6 of the School Code (Ill. Rev. Stat. 1971, ch. 122, par. 11 — 6) pertinent to administrative review provided, both at the time the state superintendent approved the petition and at the time the plaintiffs filed their complaint:

“A decision of the regional superintendent denying the petition is an ‘administrative decision as defined in Section 1 of the ‘Administrative Review Act’, and any petitioner or resident who appears in support of the petition at the hearing may apply for a review of such decision in accordance with the ‘Administrative Review Act’ and all amendments and modifications thereof and the rules adopted pursuant thereto.”

It is clear from the language of the statute in effect at the time plaintiffs sought administrative review from the orders granting the petition but before the election to organize the unit district was held that the right to administrative review was not specifically conferred on them but only on those seeking to review a denial of a petition.

Section 2 of the Administrative Review Act (Ill. Rev. Stat. 1971, ch. 110, par. 265) provides for administrative review of a final decision of any administrative agency when the agency or the act creating it expressly adopts the Administrative Review Act. Here, section 11 — 6 of the School Code confers authority for administrative review only on petitioners and affected residents who wish to appeal a decision of the regional superintendent denying the petition. The right to review a final decision of an administrative agency is limited and circumscribed by the statutes authorizing such review. (Thompson v. County Board of School Trustees (1970), 130 Ill.App.2d 660, 662.) Plaintiffs are in the same position as if the statute had not conferred the right to utilize administrative review at all and they cannot avail themselves of the procedures under the Administrative Review Act.

Writ of Certiorari

At common law, the writ of certiorari could be used to review boundary changes and consolidations of school districts where no other mode of appeal was permitted. (See McKeown v. Moore (1922), 303 Ill. 448, 453-454; Miller v. Trustees of Schools (1878), 88 Ill. 26, 33-34.) In Mills Prairie Community High School District Number 229 v. Miller (1973), 15 Ill.App.3d 87, 91, the court allowed objectors to seek review by writ of certiorari since they were not permitted administrative review from the approval by a regional superintendent. (See also Board of Education v. Ellis (1974), 19 Ill.App.3d 381, 311 N.E.2d 615, 616.) Section 11 — 6 of the School Code was amended effective October 1, 1973, to provide that the decision of the regional superintendent of public instruction either denying or approving the petition is a final decision from which there is no review or appeal.

“A decision of the regional superintendent or Superintendent of Public Instruction denying or approving the petition, whether made prior or subsequent to the effective date of this Act, shall be a final decision, from which no review or appeal shall be had or taken. However, this amendatory Act of 1973 shall not be construed to affect applications for review which were perfected pursuant to the provisions of the ‘Administrative Review Act’ before the effective date of this Act.” (Ill. Rev. Stat. 1973, ch. 122, par. 11 — 6).

The supreme court has specifically held that new procedures adopted by the legislature governing the formation of school districts apply to cases pending on appeal. (Community Consolidated School District Number 210 v. Mini (1973), 55 Ill.2d 382, 383-384; see also Board of Education v. Will County Board of School Trustees (1974), 20 Ill.App.3d 218, 313 N.E.2d 471, 473-474.) In view of the amendment of section 11 — 6 of the School Code which precludes review or appeal from a decision of the regional superintendent of public instruction denying or approving the petition (and the lack of a savings clause as to pending proceedings other than administrative review of the denial of a petition to form a unit school district), the legislative declaration of non-reviewability now precludes us from considering plaintiffs’ petition for a writ of certiorari.

Plaintiffs’ suggestion that due process is violated by denying them review or appeal is not well taken. The procedures chosen for the creation of school districts and school district boundaries lie within the exclusive prerogative of the legislature (Board of Education v. Ellis (1974), 19 Ill.App.3d 381, 311 N.E.2d 615, 616-617), and legislative processes are not normally subject to due process rights such as judicial or adjudicative functions are. (Cf. 2 Am. Jur. 2d Administrative Law § 279 (1962).) There is no constitutional right to appeal from administrative proceedings (Ill. Const. (1970) art. VI, §§ 6, 9); the right of appeal from such proceedings is not necessarily essential to due process, but is a right which may or may not be granted in a given situation as the legislature reasonably deems appropriate. (Board of Education v. County Board of School Trustees (1963), 28 Ill.2d 15, 18.) Finally, we note that there are other means such as quo warranto by which the legality of the formation of a unit school district can be tested.

Plaintiffs contend that the granting of review only where denial of a petition for the formation of unit school districts occurs is arbitrary and unjust because the same right of review does not exist when a petition is approved. As pointed out, section 11 — 6 of the School Code has been amended to deny review both from denials and approvals and the amendment eliminates any basis for the charge of arbitrariness. Moreover, the statute even prior to the amendment has been held constitutional upon an attack similar to plaintiffs’ in Board of Education v. Ellis, 19 Ill.App.3d 381, 311 N.E.2d 615. In addition to the reasoning there expressed we would also note that the approval of the petition does not create a unit school district; further proceedings or steps must be taken. Until such steps have been completed, the proceedings could reasonably be said to lack sufficient finality to make an appeal appropriate. The appeal might become unnecessary depending upon the election results, and other issues may arise from the conduct of proceedings which take place after the appeal is prosecuted. We therefore cannot say the legislative decision denying review until after the unit district is formed is irrational or unreasonable.

Declaratory Judgment and Injunction

Plaintiffs argue that the allegations in the complaint taken as true for purposes of deciding the motion to dismiss are sufficient to support a declaratory judgment. But in our view the complaint was prematurely filed. At the time the complaint was filed an election still had to be held and the result of the election and thus the formation of the proposed unit school district was not imminent or certain. (Gibraltar Insurance Co. v. Varkalis (1970), 46 Ill.2d 481, 485-486; Spalding v. City of Granite City (1953), 415 Ill. 274, 283.) Nor would the controversy necessarily be terminated since further questions concerning the conduct and validity of the election might later be raised in objection to the formation of the unit district in a quo warranto or other appropriate action. Under these circumstances, the court did not abuse its discretion in refusing to entertain the declaratory judgment action. A court has no power to render advisory opinions, and until the legislative process has been concluded there is no controversy that is ripe for declaratory judgment. Slack v. City of Salem (1964), 31 Ill.2d 174, 177-178. See also Roth-Adam Fuel Co. v. Pollution Control Board (1973), 10 Ill.App.3d 756, 757-758; Gromer Supermarket, Inc. v. Pollution Control Board (1972), 6 Ill.App.3d 1036, 1040-1045.

In Slack v. City of Salem (1964), 31 Ill.2d 174, an ordinance permitting the issuance of municipal bonds could not take effect until a number of steps were completed, one of which was the submission of the bonding question to the electorate in a referendum. A complaint was filed seeking to restrain the election and to declare the ordinance and State statute authorizing it unconstitutional. The supreme court stated the trial court erred in considering the constitutional questions because the election was part of a legislative process which the circuit court had no jurisdiction to enjoin or interfere with.

As stated earlier the creation of school districts is exclusively the prerogative of the legislature. (Board of Education v. Ellis, 19 Ill.App.3d 381, 311 N.E.2d 615.) The holding of the election in the case sub judice was just as much a necessary step in the formation of the unit school district under section 11 — 6 of the School Code as was the holding of the referendum election in Slack to enable municipal bonds to be issued under the statute and ordinance there involved. (See, e.g., Eisele v. Morton Park District (1970), 122 Ill.App.2d 226, 229-230.) The declaratory judgment action sought to review and the injunction sought to restrain an incomplete legislative process whose results were uncertain. The complaint was therefore premature and properly dismissed. We therefore affirm.

Affirmed.

T. MORAN, P. J., and RECHENMACHER, J., concur.

       District No. 3 joined in the appeal claiming the court erred in denying realignment. It appears that this issue is now moot since we have been informed that the Board of Education for School District No. 3 has withdrawn its opposition to the unit formation.


author: Mr. JUSTICE TRAPP

text:
    First National Bank of Springfield, as Trustee, et al., Plaintiffs-Appellees, v. The City of Springfield, Defendant-Appellant.
    (No. 12014;
    Fourth District
    September 12, 1974.

      D. Bradley Blodgett, of Springfield, for appellant.
    George B. Gillespie, of Springfield, and Klineman, Rose & Wolf, of Indianapolis, Indiana, for appellees.
   Mr. JUSTICE TRAPP

delivered the opinion of the court:

Defendant appeals from the order of the trial court finding that its zoning classification of described real estate as single-family residence was an unreasonable exercise of its police powers which restricted the use of plaintiff’s property without any reasonable basis in public health, safety, comfort, morals or welfare and was hence void and that the erection of a community shopping center in accordance with the evidence was reasonable and proper. The court enjoined the defendant, its officers, agents and employees from interfering with plaintiff’s use of the property as a community shopping center. The court reserved jurisdiction for the purpose of enforcing the judgment order.

The trial court made findings of fact including (1) that the City Plan Commission had recommended that the classification be changed from single-family residence to community shopping center and office district; (2) that the property had been vacant for many years and that the owner had been unable to develop it economically as single-family residence; (3) that three comers of the intersection of Wabash Avenue and Chatham Road had been classified and had been developed as commercial uses, and that approximately three-quarters of a mile to the west 50 acres had been zoned as a regional shopping center; (4) that Chatham Road is in the process of being widened to create a four-lane arterial street and as such would increase the traffic even in the absence of the proposed community shopping center; (5) that the residences closest to the proposed shopping center are separated by a State highway with four traffic lanes (Wabash Avenue) and that such residences are screened from the highway by a fence and plantings; that the elementary school on the west of the property naturally separates the area from the residences on the west; that “Jacksonville Branch” (a creek) is a natural boundary on the north, and that traffic lights, school crossing guards and patrols provide adequate safeguards for the children.

The court further found that the west edge of the proposed shopping area will be screened from the school by a 6-foot chain-link fence and 30 feet of trees and shrubs and that such buffer zone will prevent access from the school to the shopping center. Finally, the court found that the highest and best use of the land concerned was as a community shopping center; that the land was of the value of $30,000 per acre for such use but only $3,000 per acre as a single-family residence use and that there would be no adverse affect on values of nearby property.

We note the physical circumstances and the present uses at the intersection of Chatham Road and Wabash Avenue. The parcel at issue consists of almost 19 acres and is part of approximately 160 acres purchased in 1955. The parcel lies in the northwest quadrant of the intersection of Chatham Road and Wabash Avenue. The latter presently carries the traffic of two state highways. Each thoroughfare has four lanes. Chatham Road will become an arterial street connecting the business center of the city with various residential areas to the south and west of this parcel.

In 1966, after land was taken for highway purposes, a uniform area extending north from the intersection 440 feet along Chatham Road and 260 feet west from the intersection along Wabash Avenue was classified B-l, Commercial. This subject parcel then extends west some 580 feet. It is essentially bounded along the west side by the grounds of an elementary school consisting of some 8 acres. On its eastern dimension this parcel extends north from the B-l area along Chatham Road approximately 620 feet.

The parcel is bounded on the north by Jacksonville Branch (a creek) and a lot with 50-foot frontage and 140-foot depth which has been set aside for a private pre-school facility. The creek has been widened and reshaped at a cost of over $200,000 to provide drainage for the area. To the west of the entire 160 acres is a development, Colony West.

The southwest quadrant of the intersection is zoned B-l on its eastern side to the south of Chatham Road. From such zone extending west along Wabash Avenue lies a residential area known as Sherwood. The residences along the south side of Wabash Avenue are faced south and the back is nearest to the highway.

The southeast quadrant is zoned commercial and includes a department store and a nationally known food market with accompanying parking lots. There is also an unused tavern and a gasoline filling station in this quadrant.

The northeast quadrant of the intersection is not within the jurisdiction of the city. There is a filling station at the immediate comer and another nationally known food market with a parking area is developed to the north and east of that service station.

The parcel was acquired as non-zoned farm land. It was annexed to the city of Springfield in the early 1960’s on the petition of the owner and apparently no classification was made. The present classification of the real estate as R-2 was made in. 1966 when a general zoning re-classifieation of the city was made. At that time the southeast comer of the subject parcel, being the northwest quadrant of the intersection of Wabash Avenue and Chatham Road, was classified B-l, a commercial use for auto service stations, drive-in restaurants and such. At the time of the classification in 1966, the 160-acre parcel was essentially in agricultural use. As stated in sections 49.3.2 and 49.3.3 of the ordinance of the city, R-2 provides for use for agricultural purposes or as single-family detached residential development. In the context of the agricultural use at the time of the classification one is not strongly persuaded that the designation R-2 suggests or indicates a particularly planned scheme for such classification.

Between 1969 and 1972, the southeast and southwest comers of the intersection were classified commercial and developed. So far as the record discloses, the elementary school was built prior to the time of the classification in 1966. In 1970, the southeast quadrant was classified as commercial and an A&P market was constructed. At the time of the trial in 1972, work was proceeding on widening Chatham Road, enlarging it from two lanes to four as an arterial street. The intersection of Wabash Avenue and Chatham Road is under the control of the State Highway Department.

In determining whether or not a particular zoning classification serves the public interest, the court may consider the uses and the zoning of nearby property, the extent to which the property values are diminished by the zoning restrictions; the benefits sought to be gained by the classification and the relative gain to the public compared to the hardship imposed upon the owner; the suitability of the property for the classified purpose and the length of time the land as classified has remained vacant as compared with other land in the vicinity. The issue is whether or not the hardship upon the owner is justified by the benefits to the public. La Salle National Bank of Chicago v. County of Cook, 12 Ill.2d 40, 145 N.E.2d 65; Tillitson v. City of Urbana, 29 Ill.2d 22, 193 N.E.2d 1.

In this record it is shown without contradiction that the highest and best use of the parcel in the traditional or legal sense is as a community shopping center. The testimony is that the value of the parcel as single-family residence is $3,000 to $4,500 per acre, while its value for the requested use is $30,000 per acre. There is, in, fact, an option to buy at such price.

There is no testimony to the effect that the value of surrounding residential property will be diminished in value.

The director of the Plan Commission for the city of Springfield and for the county testified to the preparation of an “Urbanized Area Plan” as a recommended staff plan which provided for a community shopping center on the subject parcel. He testified that the Plan Commission had approved such a classification, although it had not been officially adopted. He expressed an opinion that the area to the south and west was rapidly growing in population and that there would be need for a community shopping center. It was his conclusion that such use would not be detrimental to the welfare of the public.

The city traffic enginer described the improvements being made to the highways and the intersection and expressed the opinion that the proposed community shopping center would not create a congestion upon the intersecting streets.

The record discloses that since the date of the classification of plaintiff’s land, the defendant has adopted the zoning policies substantially changing the character and quality of the area at the intersection. We have noted the extension of commercial uses to the remaining quadrants. Chatham Road has been made an arterial highway connecting the southwestern part of the city to the downtown business district. Three-quarters of a mile to the west of the intersection an area of 50 acres has been zoned as a regional shopping center. Wabash Avenue has become a four-lane highway for local and through traffic. It is proper to note that changes created by the municipal authorities (Scott v. City of Springfield, 83 Ill.App.2d 31, 226 N.E.2d 57) and that these highways may properly be deemed dividing lines betwen the subject parcel and the relatively few residences in the immediate area. Tillitson v. City of Urbana, 29 Ill.2d 22, 193 N.E.2d 1.

Jacksonville Branch has been widened to 14 feet at the bottom and the banks raised to 9 feet and creates a natural division from the undeveloped land to the north. The 8 acres of the school grounds along the west side of the parcel screen and divide the subject area from the property to the west.

It is argued that the proposed use of the subject parcel is a detriment affecting the elementary school on the west. The students attending come from the south and west, generally by bus or in private automobile. Those who walk from Sherwood cross a guarded intersection west of the parcel in question. Those from Colony West and Westchester approach the school from the west and it appears that there is no necessity for any student to pass along the front of the area of the shopping center, or cross its drives in approaching school. The school building has no classrooms facing the parcel, and the school parting lot for 40 cars lies between the school and this area. The western boundary of the proposed development will have a 6-foot chain-link fence with an intervening 30-foot belt of trees and shrubs. The evidence of detriment to the school is uncertain and minimal. Hartung v. Village of Skokie, 22 Ill.2d 485, 177 N.E.2d 328.

It is apparent that the parcel at issue becomes a rather isolated portion of land between the school grounds and the arterial traffic of Chatham Road and the creek which has necessarily been enlarged for the proper provision of drainage, and that the several factors have materially affected the suitability and value of the parcel for residential use. There is no showing that the proposed shopping center use would bear a substantial relation to the public safety. (Tillitson v. City of Urbana, 29 Ill.2d 22, 193 N.E.2d 1.) The record is clear that the present classification is not the highest and best use of the parcel, and that the proposed use produces but minimal interference with the use of the other property. Such conclusions overcome the presumption of the validity of the classification. (Hutson v. County of Cook, 17 Ill.App.3d 195, 308 N.E.2d 65.) The R-2 classification produces great diminution of value to the plaintiffs, while the gain to the public, if any, is insignificant. La Salle National Bank of Chicago v. County of Cook, 12 Ill.2d 40, 145 N.E.2d 65; Beaver v. Village of Bolingbrook, 12 Ill.App.3d 923, 298 N.E.2d 761.

It appearing that the findings of the trial court are supported by clear and convincing evidence, the judgment of such court is affirmed.

Affirmed.

SMITH, P. J., and SIMKINS, J., concur.


author: Mr. JUSTICE RECHENMACHER

text:
    North Shore Sanitary District, Petitioner, v. The Pollution Control Board et al., Respondents.
    (No. 72-70;
    Second District
    September 12, 1974.
    Murray R. Conzelman, of Waukegan, for petitioner.
    William J. Scott, Attorney General, of Chicago (Richard W. Cosby, Assistant Attorney General, and Richard P. Glovka, of counsel), for respondents. %
   Mr. JUSTICE RECHENMACHER

delivered the opinion of the court:

This is a statutory review of an order entered February 17,1972, by the Illinois Pollution Control Board (“Board”) (Ill. Rev. Stat. 1971, ch. 111%, par. 1041). That order was entered in an action upon a complaint by Richard Glovka (in which the Environmental Protection Agency (“Agency”) intervened as additional complainant) against the North Shore Sanitary District (“District”) and other respondents, including Thomas P. Kaeding and Alfred N. Bederman, whose separate appeals from that order are upon review by this court on the same record and exhibits (Kaeding v. Pollution Control Bd. (1974), 22 Ill.App.3d 36, 316 N.E.2d 788, and Bederman v. Pollution Control Bd. (1974), 22 Ill.App.3d 31, 316 N.E.2d 785).

The complaint alleged authorization by the District and use of sewer-connection permits for certain properties in the Village of Lake Bluff (“Lake Bluff”) in violation of an order entered by the Board on March 31, 1971 (“sewer-ban order”), in a proceeding against the District by the League of Women Voters, in which the Agency was allowed to join. The sewer-ban order banned further sewer connections and extensions to the District’s facilities until such time as treatment plants could adequately treat additional effluent. See Seegren v. Environmental Protection Agency (1972), 8 Ill.App.3d 1049, 1051.

Insofar as material in the instant case, the Board’s order of February 17, 1972, assessed a penalty of $5,000 against the District and ordered it to revoke all authorizations for sewer connections to Lake Bluff’s sewer facilities and to cause disconnection of any sewer connections made pursuant to the District’s authorization including those involved in the cases of. Kaeding and Bederman above referred to.

The District contends that the Board’s sewer-ban order was void to the extent that the Board, in its order of February 17, 1972, has construed the sewer-ban order as having revoked pre-existing permits granted by the State to install and operate certain sewers, in the absence of notice to the permit holders, and without a hearing in the proceedings resulting in the sewer-ban order. The District points to the fact that Richard J. Kissel, the Board member who was the hearing officer at the hearings and drafted the sewer-ban order, expressed the opinion on June 15, 1971 (less than 3 months later), to the District’s general manager that if a permit had been issued prior to March 31, 1971, by the State to build and operate a sewer, “the person served by that sewer had a right to connect to it even after March 31.”

It is undisputed — that in a few instances shortly following the entry of the sewer-ban order the District’s representatives interpreted it as preventing sewer connections to the District’s facilities. On April 12, 1971, the District’s general manager construed it as not being applicable to a new high school building in Lake Forest then under construction because the high school had a pre-existing sewer permit. On June 15, 1971, the District’s attorney was told by Richard J. Kissel, a member of the Board who had written the sewer-ban order, that it did not apply to pre-existing permits and that “persons served by that sewer have a right to connect to it even after March 31.” In addition to ordering the District to cease' and desist authorization of sewer connections, to revoke all authorizations theretofore issued and to cause disconnection of sewer connections made pursuant to the District’s authorization, the Board assessed a penalty in the sum of- $5,000 against the District for violation of the sewer ban.

The Board expressed the opinion in its order of February 17, 1972, that the sewer ban of March 31, 1971, “prohibited sewer connections irrespective of any pre-existing permits granted by the State or the District itself.” The Board takes the same position in this court, and argues that the District, having failed to appeal the sewer-ban order, is precluded in effect from interpreting the sewer ban as it did. The District is not challenging the validity of the sewer-ban order. Indeed, neither the Board nor the District instituted this proceeding. It was filed by an individual (Mr. Glovka) who challenged the interpretation that the Board gave the sewer-ban order through its own member, Mr. Kissel, who wrote it.

Section 49(d) of the Environmental Protection Act (Ill. Rev. Stat. 1971, ch. 111%, par. 1049(d)) provides as follows:

“All orders entered, permits or certifications granted * * * by the Air Pollution Control Board, the Sanitary Water Board, or the Department of Public Health relating to subjects embraced within this Act shall remain in full force and effect until superseded by actions taken under this Act.”

The Board took no action under that provision to revoke or rescind pre-existing permits. The sewer ban made no reference to them. None of the holders of such permits were joined as parties to that proceeding or given any notice that their permits were intended to be revoked or rescinded thereby. In all instances in which the District authorized sewer connections the applicant or his predecessor in title had a pre-existing permit issued by the appropriate department of the State.

Due process of law by an administrative agency requires adequate notice and a fair hearing and both administrative and judicial proceedings “are governed by the fundamental principles and requirements of due process of law.” Lake County Contractors Ass’n v. Pollution Control Bd. (1972), 6 Ill.App.3d 762, 765; Quinn v. Department of Registration & Education (1971), 132 Ill.App.2d 925, 926; see also Bell v. Burson (1971), 402 U.S. 535, 539, 29 L.Ed.2d 90, 91 S.Ct. 1586.

Inasmuch as the pre-existing permits held by various parties were not revoked or rescinded by notice or joinder as parties of such holders the District was not in violation of the Board’s sewer-ban order. Therefore, no penalty could be imposed upon the District by tire Board for authorizing sewer connections to holders of pre-existing permits, and the Board, as to such holders, could not prohibit sewer connections for them or cause the District to require disconnections of sewer connections already made.

Therefore, the order entered by the Board on February 17, 1972, against the District is reversed.

Order reversed.

T. MORAN, P. J., and GUILD, J„ concur.

       Another question raised by this appeal was whether the Board’s authority to impose monetary penalties under the Environmental Protection Act was an unconstitutional delegation of judicial power. This was decided by the Illinois Supreme Court in City of Waukegan v. Pollution Control Bd. (1974), 57 Ill.2d 170. Our holding in the instant case makes it unnecessary for us to reach that question.

       It also ordered Bederman and Kaeding to cease and desist any sewer connections and to disconnect any connection theretofore made. See Bederman v. Pollution Control Bd., supra, and Kaeding v. Pollution Control Bd., supra.

       While not material in our holding it should be noted that only three homes were connected to the sewer, none of them are occupied, and there is no additional effluent resulting.