author: JUSTICE REINHARD

text:
    JOHN W. MOORE, Plaintiff-Appellant, v. FARMERS INSURANCE EXCHANGE, Defendant-Appellee.
    Second District
    No. 81—801
    Opinion filed December 29, 1982.

      Gary K. Mickey and Bernard K. Weiler, both of Puckett, Barnett, Larson, Mickey, Wilson & Ochsenschlager, of Aurora, for appellant.
    William J. Sneckenberg and Robert J. Spinazzola, both of Lev & Sneckenberg, of Chicago, for appellee.
   JUSTICE REINHARD

delivered the opinion of the court:

Plaintiff, John W. Moore, appeals from a judgment entered on a jury verdict in favor of defendant Farmers Insurance Exchange. The case was tried on count I of plaintiff’s third amended complaint alleging defendant’s wrongful failure to pay a claim for fire damage to his house and contents under a homeowner’s policy issued to plaintiff by deféndant. Defendant raised the affirmative defenses of plaintiff’s misconduct in causing the fire and plaintiff’s false swearing as to the cause of the fire and the amount of the loss. The jury returned a verdict for defendant and answered two special interrogatories supporting each of these affirmative defenses. Count II alleging wilful, wanton and vexatious refusal to pay and count III seeking attorney fees, costs and statutory damages trader section 155 of the Illinois Insurance Code (Ill. Rev. Stat. 1979, ch. 73, par. 767) were reserved for judgment by the court pending judgment on count I. After trial, the court granted summary judgment for defendant on counts II and III.

Plaintiff raises the following issues on appeal: (1) the jury verdict was against the manifest weight of the evidence due to inadequate circumstantial evidence connecting plaintiff to the fire’s origin; (2) the court erred in admitting evidence of the presence of accelerants in plaintiff’s home four days after the fire without proof that the premises were in the same condition at the time of the fire as when the evidence of accelerants were found; (3) defendant failed to prove the affirmative defense of plaintiff’s false swearing; (4) the court erred in limiting plaintiff’s offer to prove he was eligible for unemployment compensation; (5) the court allowed improper impeachment of plaintiff’s witness Robert Carter; (6) the court erred in allowing defendant’s investigator to give an opinion as to the most direct route between two locations in the city of Aurora; (7) defendant’s motion for summary judgment on counts II and III should have been denied; and (8) this court should reverse the trial court on the evidence and enter judgment for plaintiff.

Plaintiff testified in his case-in-chief that his home suffered extensive damage from a fire occurring at approximately 2 a.m. on January 3, 1980. At the time of the fire, plaintiff stated he was insured against fire loss by defendant. Plaintiff testified that defendant did not pay the claim he filed under this policy.

On January 16, 1980, plaintiff filed a sworn proof of loss form with defendant estimating his personal property loss at $18,000 and damage to the premises at $25,000. A list of the personal property that plaintiff claimed he lost in the fire, which noted the value of each item, was attached to the proof of loss.

John Braun, a building contractor, also testified for plaintiff. He testified that he had submitted a $21,559 estimate for the repair of plaintiff’s home to defendant.

Defendant, then, presented its case. Assistant fire chief Gene Plott testified for defendant that the fire department received a call regarding the fire at plaintiff’s house at 1:17 a.m. on January 3, 1980. He arrived at the scene within three minutes of the call. Plott observed no signs of forced entry, and it was necessary for the fire fighters to force open the front and back doors because they were locked. Plott stated that fire was coming out of the windows on the south side of the house and glass may have been out of the windows on that side. Fire fighters kicked out the rest of the windows to get hoses in.

After extinguishing the blaze, Plott investigated the scene but was unable to determine the cause of the fire. He testified that plaintiff’s dog was not found in the garage. Plott testified that plaintiff arrived about 2:40 a.m. and spoke with him. He noticed that plaintiff “seemed very, very calm,” but admitted that some fire victims react in a calm manner.

A number of defense witnesses testified to plaintiff’s financial status. John Heffernan of General Finance Co. testified that plaintiff obtained a $2,412 loan on December 17, 1976, which matured December 17, 1979, with $1,175.28 owing on that date. Plaintiff did not pay this balance. Paul Anderson of the Old Second National Bank testified that plaintiff refinanced an auto loan with the bank on June 11, 1979, for $6,458.34. At the time of the fire, plaintiff was 21k payments behind on his $153.77 monthly payments. Plaintiff had a business checking account at the bank with a $3.50 balance and a savings account with a $22.37 balance on December 24, 1979.

Other defense witnesses testified that plaintiff was two quarterly payments behind on his water bill with $56.09 outstanding and that he had been delinquent in paying his electric bill since August 1, 1979. Commonwealth Edison had received two partial payments since then, but plaintiff was still $201.70 in arrears. Several of plaintiff’s creditors testified that his being in arrears and paying irregularly were not unusual for him.

Plaintiff testified under section 60 (Ill. Rev. Stat. 1979, ch. 110, par. 60) examination that he locked the doors and left his house “possibly” between 9:30 and 11 p.m. on January 2, 1980. He stated that his dog was in the garage at the time of his departure. He went from his home to either the Capricorn Lounge or Hugh Farrell’s house. At some point in the evening he did go to Farrell’s, though he was unsure of the time he arrived. Plaintiff testified that he went from Farrell’s to Robert Carter’s house at approximately 12:30 or 1 a.m. on January 3, 1980. He indicated that he stayed at Carter’s approximately V-h to two hours. Plaintiff stated that at that time he and Carter went out for cigarettes. He testified that they first drove to the Village Gas Station at Loucks and New York Streets, which was closed. They then went across the street to the Capricorn Lounge, which was also closed. Next, they drove to the 7-Eleven store at Claim and Ohio Streets. He learned of the fire while at the 7-Eleven.

When asked by defense counsel whether he crossed Ohio Street on his route from the Capricorn Lounge to the 7-Eleven plaintiff responded “yes.” However, he changed his testimony immediately stating that he did not cross Ohio Street because, if he had, he could have seen his house on the way. Plaintiff said the route he took was Kendall Street to Claim Street.

The evidence showed that from the time plaintiff left his home until the time he learned of the fire he was never more than a few minutes drive away from his house.

After learning of the fire, plaintiff went to his house and looked through it. He testified that nothing was missing at that time, though he did not check the closets.

Plaintiff testified that he had attempted to sell his house in 1978 and that a “For Sale” sign was in the window of his home at the time of the fire. Plaintiff testified his house was not for sale at the time of the fire and that he had never attempted to rent the house nor did he have a “For Rent” sign in the window.

He testified that he opened his business, Johnny’s Beauty Box, in March or April 1979. At that time he had no other employment but “believed” he was receiving sick pay from his former employer. The sales tax returns for plaintiff’s business showed no sales between May and September 1979. October sales were shown as $1,365. The October return also indicated plaintiff was ceasing business operations. Plaintiff denied investing $7,700 in this business and was impeached by his prior deposition, which indicated the investment of this sum.

Defense witness Emily Flores, a neighbor of plaintiff, testified that a “For Sale” and a “For Rent” sign were side by side in plaintiff’s front porch window on the date of the fire.

Robert Jaske, a claims representative for defendant, testified that he learned of the fire on January 4, 1980. He went to the scene on that date and noticed “trailers” (burn patterns) “in the dining room extending into the living room area and toward the bedroom *** off the dining room.”

Timothy Lynch, a fire investigator for Ron Russell and Associates, the company hired by defendant to investigate the fire,, testified that he learned of the fire on January 4, 1980, and arrived at the scene on January 5, 1980. Upon his arrival, he observed that the house was not boarded up. He also noticed a heavy bum around the southside window. He took photographs to insure that the scene remained unchanged between January 5, 1980, and the next visit.

Defendant’s witness Rita Ann Carroll, a fire investigator for Ron Russell and Associates, testified that she arrived at the scene on January 7, 1980, accompanied by Lynch. She determined that the south window area of the dining room was the point of origin for the fire. This determination was based on burn damage on the carpet and lower levels of the walls in the dining room and connecting portion of the living room. The other rooms had damage in higher areas indicating heat and smoke, rather than fire, damage. No burning had occurred in the basement stair area or in the bathroom.

She testified that most of the carpeting was relatively clean but that there were areas that were heavily burned. The burn damage in these areas of the carpet were in patterns that in her opinion were caused by a liquid accelerant being spilled and then ignited. These burn patterns were found on parts of the carpet in the dining room, from the dining room into the living room and in the part of the living room closest to the dining room. The rafter beneath the cold air return in the dining room floor was heavily charred. Carroll testified that while it was possible for a cold air return to draw fire down, it was more likely that this charring was caused by an accelerant being spilled on the floor.

She testified that she used a hydrocarbon detector on the carpet and walls where it appeared accelerants had been spilled to find areas to collect samples for laboratory analysis. The hydrocarbon detector draws vapors from an area and indicates whether hydrocarbons are present. Samples were collected from areas indicated by the detector. These samples were sent to Davis Chemical Company for analysis.

Based on her training and experience Carroll gave her opinion that within a reasonable degree of scientific certainty the fire started from some type of accelerant being spilled and ignited. She also testified that it would be very difficult, after the fire, to have moved the debris, placed the accelerants, lit them, and then replaced the debris.

Dr. David Dunham testified that he was the chemist employed by Davis Chemical Company who analyzed the samples collected by Carroll. He tested these samples in a gas chromatograph which separates and identifies the components of a complex mixture. The chromatograph used here had a flame ionization detector which “is particularly sensitive to hydrocarbon content *** such as one might find in lighter fluid or gasoline or a variety of other compounds.” The tests consisted of drawing air from the sample container, injecting it into the chromatograph and observing a graph which showed the detector’s determination of the length of time (retention time) the components were retained in the chromatograph. The retention time was then interpreted by Dr. Dunham to identify the component present in the sample. Identification is achieved by comparing the test results with the results of tests run on known compounds.

Dr. Dunham tested the samples numbered 2, 4, 5, 8, 9, and 12. Sample No. 12 corresponded to hydrocarbons containing eight to 10 carbon atoms. This is similar to the major components of diesel fuel, home heating oil and charcoal lighter fluid. A lot of hydrocarbons were present and he testified that the sample would bum easily. Sample No. 4 was about 20-25% the concentration of No. 12. It corresponded to compounds containing seven or eight carbon atoms. Charcoal lighter fluid and home heating oil have those compounds.

He could not reach definite conclusions as to the other four samples. However, he stated that sample No. 2 had some correspondence to gasoline compounds and that sample No. 5 had a high likelihood that it was the same compound as No. 4. He could not reach any conclusion as to sample No. 8 or sample No. 9.

He stated the compounds that were identified dissipate slowly and would be relatively unchanged from January 3 to January 7 or even for several months. He testified that the components he identified in these samples would not be found in rugs, furniture or clothing.

Defense witness Alan Hracek, a private investigator hired by defendant, testified that based on distance calculations his opinion was that the most direct route from the Capricorn Lounge to the 7-Eleven store was New York to Ohio Street and then Ohio Street to Claim Street.

Plaintiff called several witnesses in rebuttal. Charles Ferrari testified that plaintiff opened an account and deposited $4,543.31 on December 18, 1979, at the First Security Bank of Fox Valley. On the date of the fire, the account balance was $1,118.55. Hugh Farrell testified that plaintiff visited him at his home on the night in question but did not know when plaintiff arrived or when he left. Robert Carter testified that plaintiff came to his house about 1 a.m. He stated that he and plaintiff had some drinks and then went to the Carpricorn Lounge for cigarettes a little after 1 a.m. Because it was closed they went to the 7-Eleven.

Over plaintiff’s objection, Carter was cross-examined about not appearing at a scheduled deposition and about cashing a subpoena fee check. This check bore plaintiff’s endorsement as well as Carter’s. Plaintiff later during rebuttal testified that he had cashed the check for Carter. .

State Fire Marshall arson investigator Donald Hollanger testified for plaintiff on rebuttal that he was called by the Aurora fire department to investigate the fire. He arrived about noon on January 3, 1980, and declined to investigate because the building had not been secured since the time of the fire. He concluded that this lack of security precluded gathering evidence for a criminal prosecution. He also testified that for a person to have placed accelerants after a fire would require the moving of debris in order for it to look natural.

During rebuttal plaintiff sought to introduce evidence of repairs he had begun on the house two months after the fire and evidence that be began receiving unemployment compensation in March 1980. The court refused to allow this evidence to be introduced.

Plaintiff first contends that the jury verdict was against the manifest weight of the evidence due to inadequate circumstantial evidence connecting plaintiff to the fire’s origin. The party who asserts an affirmative defense has the burden of proving it. (Pascal P. Paddock, Inc. v. Glennon (1964), 32 Ill. 2d 51, 54, 203 N.E.2d 421; Capitol Plumbing & Heating Supply, Inc. v. Van’s Plumbing & Heating (1978), 58 Ill. App. 3d 173, 175, 373 N.E.2d 1089.) Thus, defendant has the burden of proving plaintiff was guilty of misconduct in the origin of the fire in order to prevail on that branch of its affirmative defense and thereby defeat plaintiff’s claim to recovery under the policy.

Where a crime such as arson is an issue in a civil action it need only be proved by a preponderance of the evidence rather than beyond a reasonable doubt. (Sundquist v. Hardware Mutual Fire Insurance Co. (1939), 371 Ill. 360, 365, 21 N.E.2d 297; Werner’s Furniture, Inc. v. Commercial Union Insurance Co. (1976), 39 Ill. App. 3d 59, 65, 349 N.E.2d 616.) Thus, our inquiry is whether it was against the manifest weight of the evidence for the jury to find that the preponderance of the evidence showed plaintiff was guilty of misconduct in the origin of the fire. See Lynch v. Board of Education (1980), 82 Ill. 2d 415, 423, 412 N.E.2d 447.

In order to prevail plaintiff and defendant agree that defendant must prove (1) that the fire was of an incendiary nature and (2) that plaintiff caused or procured the fire. (Werner’s Furniture, Inc. v. Commercial Union Insurance Co. (1976), 39 Ill. App. 3d 59, 65, 349 N.E.2d 616.) They also agree that motive and opportunity for starting the fire, as well as the identity of the person starting the fire, may be proven by circumstantial evidence. (Commerce Union Bank v. Midland National Insurance Co. (1964), 53 Ill. App. 2d 229, 239, 202 N.E.2d 688; see also People v. Brown (1982), 104 Ill. App. 3d 1110, 1117, 433 N.E.2d 1081.) “Circumstantial evidence is the proof of certain facts and circumstances *** from which the jury may infer other connected facts which usually and reasonably follow according to the common experience of mankind.” Devine v. Delano (1916), 272 Ill. 166, 179-80, Ill N.E. 742; see also People v. Rhodes (1981), 85 Ill. 2d 241, 248-49, 422 N.E.2d 605.

The key to deciding whether the circumstantial evidence was adequate to sustain the jury’s verdict is the question whether from the circumstantial evidence presented the jury properly could draw the inference that plaintiff caused or procured the fire.

Plaintiff urges that the circumstantial evidence must be of such a nature that only one possible inference may be drawn from it. He contends that if more than one inference may be drawn from the circumstantial evidence, then the evidence cannot be used to support any inference.

Defendant argues that the circumstantial evidence must reasonably permit a particular inference to be drawn by the trier of fact. If it does, then, defendant argues, the fact that a contrary inference could be drawn from the circumstantial evidence does not defeat the inference drawn by the trier of fact.

Language in some cases might seem to support plaintiff’s argument.' (Werner’s Furniture, Inc. v. Commercial Union Insurance Co. (1976), 39 Ill. App. 3d 59, 349 N.E.2d 616; Commerce Union Bank v. Midland National Insurance Co. (1964), 53 Ill. App. 2d 229, 202 N.E.2d 688.) However, we believe the proper approach is set forth in Rocker v. O’Klock (1959), 16 Ill. 2d 414,158 N.E.2d 7.

In Hocker, our supreme court, in recognizing that a fact may be established by circumstantial evidence, quoted from Lindroth v. Walgreen Co. (1950), 407 Ill. 121, 134-35, 94 N.E.2d 847, as follows:

“ ‘The inquiry here is whether the result reached below was one which is reasonable on the facts in evidence, not whether other conclusions might also have been reached. **.* A verdict may not be set aside merely because the jury could have drawn different inferences or because judges feel that other conclusions than the one drawn would be more reasonable.’ ” (16 Ill. 2d 414, 420-21,158 N.E.2d 7.)

See also Nagel-Taylor Automotive Supplies, Inc. v. Aetna Casualty & Surety Co. (1980), 81 Ill. App. 3d 607, 402 N.E.2d 302.

We hold that the circumstantial evidence in this case was adequate to sustain the inference that plaintiff was guilty of misconduct in the origin of the fire in his home. Thus, the jury’s verdict was not against the manifest weight of the evidence.

The testimony showed that the fire was of an incendiary nature. Defendant’s fire investigator’s testimony was that accelerant burn patterns were found in the dining room, from the dining room into the living room, and in the living room. Her opinion was that the fire started from spilled accelerants. This was corroborated by Dr. Dunham’s analysis of samples collected from these areas. This analysis showed the existence of hydrocarbon compounds not normally found in household furnishings, but found in diesel fuel, home heating oil, and charcoal lighter fluid. There is an absence of a motive for a third party to enter the house and set the fire in the method described.

The testimony also showed that plaintiff was in a precarious cash position which had been steadily deteriorating for several months. It showed his business had not been successful, that he had no other source of income, and that he was behind in his bills and loan payments, all of which tend to establish a motive to set the fire in order to collect the insurance proceeds. By his own admission plaintiff was in the vicinity of his home at the time of the fire. His travels that evening and the routes that he took near his home were factors to be considered. Any bias interest or prejudice of the witnesses who testified to plaintiff’s whereabouts that evening were proper considerations for the jury. The evidence showed that plaintiff said his dog was in the garage yet fire fighters did not find the dog. The evidence further showed the doors were locked that evening by plaintiff and remained locked until forced open by the fire fighters. The jury could infer from this fact that no third party entered the premises. This inference is further supported by plaintiff’s testimony that he inspected the premises on the night of the fire and determined that nothing was missing. Moreover, plaintiff reacted in a “very, very calm” manner when he arrived at the fire scene. This was another fact the jury could consider in drawing the inference that plaintiff was responsible for causing the fire.

Viewing all the evidence, we believe the jury could reasonably infer that plaintiff was guilty of misconduct in the origin of the fire. Thus, the jury’s verdict was not against the manifest weight of the evidence and therefore cannot be reversed. Lynch v. Board of Education (1980), 82 Ill. 2d 415, 423, 412 N.E.2d 447.

Plaintiff also contends that defendant failed to prove the affirmative defense of plaintiff’s false swearing. We need not reach this issue because of our decision that the jury verdict on misconduct was not against the manifest weight of the evidence. Where a general verdict has been rendered for defendant and at least one count is sufficient to sustain the general verdict it will not be set aside even if another count is defective. (Ill. Rev. Stat. 1979, ch. 110, par. 68(4); Lynch v. Board of Education (1980), 82 Ill. 2d 415, 431, 412 N.E.2d 447.) Thus, even if the false swearing defense were inadequately proven, the verdict for defendant would still stand.

Plaintiff argues that the court erred in admitting evidence of the presence of accelerants in plaintiff’s home four days after the fire without proof that the premises were in the same condition at the time of the fire as when the accelerants were found. However, plaintiff failed to specifically object to the introduction of this evidence in a timely manner. Failure to make a timely objection waives the objection and it cannot later be raised on appeal. (Brumley v. Federal Barge Lines, Inc. (1979), 78 Ill. App. 3d 799, 806, 396 N.E.2d 1333; Bosel v. Marriott Corp. (1978), 65 Ill. App. 3d 649, 653-54, 382 N.E.2d 587.) The record indicates plaintiffs objected only to Carroll’s competence to render an opinion that the fire was started by a “person or persons unknown.” At trial, counsel mentioned in passing that the foundation for her testimony as to the accelerants is improper because of the delay but stated “at this stage I’m arguing this one.” No other mention is made of the objection based on delay and the court never ruled on it. It is well established that an objection must specify the grounds for the objection and no grounds other than those stated will be considered on appeal. (Johns-Manville Products Corp. v. Industrial Com. (1979), 78 Ill. 2d 171, 179, 399 N.E.2d 606.) Thus, plaintiff waived this objection.

Even if we were to consider plaintiff’s argument, we would not find error. Whether to admit evidence or not is within the sound discretion of the trial court and the trial court’s decision will not be reversed absent a clear abuse of discretion. (Country Mutual Insurance Co. v. Adams (1980), 85 Ill. App. 3d 501, 506, 407 N.E.2d 103.) When testimony is given based on an inspection, evidence must be introduced to show that the conditions were essentially the same at the time of the inspection as they were at the time of the event. (Canales v. Dominick’s Finer Foods, Inc. (1981), 92 Ill. App. 3d 773, 778, 416 N.E.2d 303; Neubauer v. Coca Cola Bottling Co. (1968), 96 Ill. App. 2d 18, 28, 238 N.E.2d 437.) Fire investigator Carroll testified that she removed debris in order to inspect the burn patterns on the carpet. She indicated it would be very difficult to have placed the accelerants after the fire since this would have required moving debris, placing the accelerants, lighting them, and then replacing the debris in a natural looking way. State Fire Marshall’s investigator Hollanger agreed that debris would need to be moved in order to place accelerants after ' the fire. This evidence was sufficient to show that the conditions were essentially the same at the time of the inspection as they were at the time of the fire. Thus, the trial court did not clearly abuse its discretion in admitting evidence of the presence of accelerants.

Plaintiff argues that the trial court improperly excluded evidence that plaintiff became eligible for unemployment compensation in March 1980; some two months after the fire. He argues this evidence was relevant to rebut the inference created by the defendant that he was not in a good financial condition. At the time introduction of this evidence was sought by plaintiff, his counsel requested permission to put plaintiff back on the stand to ask him about repairs to the premises subsequent to the fire and to testify that “he was in a position where he was drawing unemployment compensation starting in March of 1980 and that he drew it for approximately six months.” The arguments before the trial court focused almost exclusively on the propriety of introducing the evidence of post-occurrence repairs. This evidence was excluded and its exclusion is not raised as error on appeal. Only after denying the evidence of post-occurrence repairs did plaintiff’s counsel seek a ruling on the unemployment compensation evidence which was also excluded on the basis that it occurred after the fire “unless there is something that needs a tie-in.” On this record, plaintiff, in seeking introduction of this evidence, has not demonstrated when, in relation to the date of the fire, he knew he would draw unemployment compensation. It was necessary for a determina1 tion of the relevancy of this evidence, whether plaintiff, at the time of the fire, knew he would receive unemployment compensation. If plaintiff knew at the time of the fire he would receive this benefit, the evidence may have been relevant to his financial condition. However, we cannot make this factual determination from the limited arguments of counsel before the trial court. Thus, plaintiff waived this issue by failing to make an adequate offer of proof.

An offer of proof is necessary to preserve a question for review where the trial court excludes the testimony of a witness on a particular matter. (Federal Mutual Insurance Co. v. Pense (1980), 84 Ill. App. 3d 313, 318, 405 N.E.2d 368.) An offer of proof may remove an ambiguity as to the admissibility of the preferred testimony. (Pioneer Hi-Bred Corn Co. v. Northern Illinois Gas Co. (1975), 61 Ill. 2d 6, 17, 329 N.E.2d 228.) Here, plaintiff failed to offer necessary facts to the court to support the admissibility of this evidence.

Plaintiff also argues that the trial court allowed plaintiff’s witness, Robert Carter, to be improperly impeached by allowing his cross-examination concerning a check issued to Carter bearing plaintiff’s endorsement as well as Carter’s. Plaintiff argues he was severely prejudiced by the impeachment of Carter regarding the endorsements on the subpoena fee check issued by defendant to Carter. Plaintiff contends that the jury’s learning that his endorsement appeared on the check was damaging to his case. Defendant offered the evidence of Carter’s failure to appear for the deposition, and his cashing the check, to show bias in favor of plaintiff. Plaintiff argues that his friendship with Carter was conceded so the evidence was unnecessary for impeachment and served to unfairly prejudice him.

A trial court has broad discretion in controlling cross-examination and reversal will result only where such discretion had been clearly abused and the abuse materially affected the results of the trial. (Chiesa v. Laspisa (1980), 90 Ill. App. 3d 911, 919, 414 N.E.2d 47; Papageorgiou v. F.W. Woolworth Co. (1978), 66 Ill. App. 3d 873, 881-82, 383 N.E.2d 1346.) We cannot say that this inquiry constituted an abuse of that discretion. Further, plaintiff testified in rebuttal that he had cashed the check for Carter merely because Carter did not have time to go to the bank. Given plaintiff’s exercise of this opportunity to explain, it cannot be said that the introduction of this check, even if it were error, would have materially affected the outcome of the trial.

Plaintiff also contends that the court erred in allowing defendant’s investigator Hracek to testify to the most direct route between the Capricorn Lounge and the 7-Eleven store at Claim Street and Ohio Street in Aurora, Illinois. The thrust of plaintiff’s argument on appeal is that the foundation for Hracek’s opinion testimony on the most direct route in Aurora was inadequate.

Whether a witness is qualified to testify as an expert is within the sound discretion of the trial court. (Hardware State Bank v. Cotner (1973), 55 Ill. 2d 240, 250, 302 N.E.2d 257; McClure v. Suter (1978), 63 Ill. App. 3d 378, 384, 379 N.E.2d 1376.) The current trend is to allow expert testimony if it will assist the trier of fact in understanding the evidence even though the average juror would also have some knowledge of the subject matter. (Binge v. J.J. Borders Construction Co. (1981), 95 Ill. App. 3d 238, 242, 419 N.E.2d 1237; E. Cleary and M. Graham, Handbook of Illinois Evidence sec. 702.4 (3d ed. 1979).) Here, Hracek’s testimony established that he had considerable experience as an investigator for several municipalities, had familiarized himself with the streets in Aurora, and calculated the distance between plaintiff’s house and Farrell’s, between Farrell’s house and Carter’s, between Carter’s house and the Capricorn Lounge, between the Capricorn Lounge and the 7-Eleven store, and between the intersection of Ohio Street and Fenton Street and plaintiff’s house. From this he was able to give his opinion of the most direct route. Since this opinion could be helpful to the jury the trial court did not abuse its discretion in allowing Hracek to give it.

Even if we were to hold that Hracek’s testimony was erroneously admitted, the error is not prejudicial to plaintiff’s case. Plaintiff has not met his burden of showing that this evidence affected the result in the trial court. Absent such a showing, the error does not require reversal. Svenson v. Miller Builders, Inc. (1979), 74 Ill. App. 3d 75, 86, 392 N.E.2d 628; see Kyowski v. Burns (1979), 70 Ill. App. 3d 1009, 1019, 388 N.E.2d 770.

Plaintiff’s other contentions on appeal rest on a determination favorable to plaintiff on one of the above issues. Since we hold against plaintiff on those issues, we need not address his other arguments.

Affirmed.

SEIDENFELD, P.J., and HOPE, J., concur.


source: Caselaw Access Project

author: JUSTICE MILLS JUSTICE TRAPP,

license: Public Domain

text:
    PIONEER PROCESSING, INC., et al., Plaintiffs-Appellants and Cross-Appellees, v. THE ENVIRONMENTAL PROTECTION AGENCY, DefendantAppellee and Cross-Appellant.
    Fourth District
    No. 4—82—0205
    Opinion filed December 28, 1982.
    Rehearing denied February 4, 1983.

      TRAPP, J., concurring in part and dissenting in part.
    Thomas J. Immel, of Burditt & Immel, and Lee K. Zelle, both of Springfield, for appellants.
    Tyrone C. Fahner, Attorney General, of Springfield (A.L. Zimmer, Assistant Attorney General, of counsel), for appellee.
   JUSTICE MILLS

delivered the opinion of the court:

A hazardous waste case.

We affirm in part and reverse in part.

This is an action for declaratory judgment brought by Pioneer Processing and Pioneer Development for a determination of their rights to continue development of a hazardous waste site located in Ottawa Township, La Salle County. The trial court entered a final order on March 2,1982, and an appeal has been taken by each party.

FACTS

On July 1, 1980, plaintiffs applied to the Illinois Environmental Protection Agency (EPA) for the issuance of a development permit for the construction of a hazardous waste disposal site on a 177-acre tract of land in La Salle County. Two tracts of land contained within the 177-acre parcel are in dispute and will be referred to as the “well segment” and the “Naplate segment.”

The “well segment” is a 44.2-acre tract lying along the northern area of the parcel and within 1,000 feet of several off-site private water wells. The “Naplate segment” consists of an area of 27.6 acres on the eastern part of the site located within lxlz miles of the village of Naplate.

Pursuant to section 21(g) of the Environmental Protection Act, “[i]n counties of population less than 225,000 no hazardous waste disposal site shall be located *** (2) within 1000 feet of an existing private well or the existing source of a public water supply measured from the boundary of the actual active permitted site and excluding existing private wells on the property of the permit applicant.” Ill. Rev. Stat. 1979, ch. HV-k, par. 1021(g).

According to Charles Russell, a registered professional engineer and plaintiffs’ consulting engineer, under the plan submitted to the EPA, the area within the 1,000-foot restriction was not to be used by plaintiffs for the disposal of hazardous waste but was intended for office buildings, laboratories, parking lots and the disposal of nonhazardous waste. On December 22, 1980, the EPA issued a permit to plaintiffs allowing the development and construction of the site, but subsequently plaintiffs’ attorney wrote the agency requesting instructions from them on whether they could properly use the well segment area in view of the language of the statute prohibiting a site within 1,000 feet of off-site private wells. Plaintiffs estimated expenditures of $8,000,000 on the site and desired clarification of the question. On January 22, 1981, the agency responded that it was unwilling to take a position on the issue and that plaintiffs would be proceeding with the construction at their own risk. Count II of plaintiffs’ complaint requested the court to declare its rights to utilize the well segment under section 21(g) of the Environmental Protection Act.

As indicated, the Naplate segment which consists of an area of 27.6 acres is located within IV2 miles of the corporate limits of the village of Naplate. Section 21(g) of the Environmental Protection Act provides:

“In counties of population less than 225,000 no hazardous waste disposal site shall be located (1) within IV2 miles of the corporate limits as defined on June 30, 1978, of any municipality without the approval of the governing body of the municipality in an official action.” (Ill. Rev. Stat. 1979, ch. IIIV2, par. 1021(g).)

This requirement became effective on January 1, 1980, and in August and September of 1980, Russell approached the village board concerning their approval of the site’s location. On October 20, 1980, the village of Naplate adopted a resolution approving the location of the site within IV2 miles of the village. This resolution was then sent to the Environmental Protection Agency, and the agency issued a permit to plaintiffs on December 22, 1980. On the same day, but later in the evening, the village board of Naplate held a special meeting and rescinded their previous resolution granting approval to the site. In plaintiffs’ letter of January 20, 1981, to the EPA they also requested that the EPA issue an opinion of the effect of the village’s resolution. On this question, the EPA replied that no opinion would be given and that plaintiffs would proceed at their own risk. In plaintiffs’ complaint for declaratory relief they alleged that substantial and permanent improvements would be taking place on the segment and prayed for a determination of the effect of the village’s action under section 21(g) of the Act.

On March 2, 1982, the trial court entered its final judgment order following hearing on the merits. The trial court concluded that section 21(g) which prohibits disposal within 1,000 feet of a private well was clear on its face and prohibited plaintiffs from the location of any part of the site within such limit. On the Naplate segment, the court held that the municipality could not rescind its consent once approval had been granted to plaintiffs and they had substantially relied on that authority. The trial court found that plaintiffs had substantially changed their position in reliance on the municipal resolution.

Plaintiffs have appealed from that portion of the order prohibiting the use of the site within 1,000 feet of the off-site private wells, and the defendant has cross-appealed from the court’s finding that plaintiffs had substantially relied upon the consent of the village of Nap-late to locate the site within IV2 miles of the municipal boundaries.

I

We first consider plaintiffs’ appeal from the trial court’s order prohibiting the location of any portion of the site within 1,000 feet of an off-site private well. Plaintiffs argue that the intention of the General Assembly in passing section 21(g) was to protect the public health and safety by providing a buffer zone of 1,000 feet between the actual disposal sites and an off-site private water source. They urge that such a concern for public safety is not affected where the activity taking place within the 1,000 feet is not the actual disposal of hazardous waste but is the location of administrative buildings, laboratories, and the disposal of nonhazardous waste. Plaintiffs contend that such an intention is clear from the unambiguous language of the statute and becomes even more apparent when extrinsic and intrinsic aides of construction are applied. Defendant likewise argues that the statute is free from ambiguity, suggesting that the plain meaning can be discerned by engrafting the definition of “site” contained in section 3(y) of the Act (Ill. Rev. Stat. 1979, ch. 1111/2, par. 1003(y)) onto section 21(g).

We agree with the trial court that the statute is unambiguous in providing a 1,000-foot barrier but disagree with its finding that “site” includes any portion of the area whether or not hazardous wastes are disposed of within 1,000 feet.

In finding the intent of the legislature, courts must first consider the language used and the object to be attained. Words of a statute should be given their plain, ordinary and accepted meaning unless to do so would defeat the legislative intent. (Peoria Savings & Loan Association v. Jefferson Trust & Savings Bank (1980), 81 Ill. 2d 461, 410 N.E.2d 845; Potts v. Industrial Com. (1980), 83 Ill. 2d 48, 413 N.E.2d 1285.) The focus at bar turns upon the meaning of the phrase “measured from the boundary of the actual active permitted site.” These words are not defined in the Act with the exception of the word “site.” Notably absent from the trial court’s written order is any discussion of the meaning of the words “actual active.” This language indicates to us a clear intention to restrict the otherwise broad definition of site to a measurement commencing at the actual disposal area of the site. Though we reach this result on the basis of our conclusion that the statute is unambiguous on this point, other principles of statutory construction ineluctably lead to this interpretation.

Of the words in the phrase at issue, only “site” is defined in the Act. By engrafting its definition onto section 21(g) we are still left with the modifying words “actual and active,” which become superfluous if defendant’s construction is adopted. In construing statutes, courts are to give consideration to all the words of the provision so that no word or clause is rendered meaningless or superfluous (County of Winnebago v. Industrial Com. (1966), 34 Ill. 2d 332, 215 N.E.2d 258). The principle of ejusdum generis lends further support to this construction of the section. The general list of things contained within the definition of site is preceded by the limitation that these areas be actual and active. Not all parts of the site are prohibited to lie within the 1,000 foot barrier but only those parts of the site which are actual and active. We believe that, properly interpreted, section 21(g) refers only to areas within which hazardous wastes are disposed. The provisions of section 21(g) reinforce this conclusion. This section also provides for a buffer between a municipality and a “site,” but as used in the first part of this section, “site” is not qualified by a limitation similar to that of the second part. The legislature’s use of the language “as measured from the boundary of the actual active permitted site” in part (2) and the absence of similar language in the same statute convinces us that different results were intended. Peoria Savings & Loan Association.

We would also note that the Pollution Control Board, which is charged with the promulgation of rules and regulations to implement the Act and the hearing of complaints of violations of the Act, has interpreted the provisions of this section as applying to the actual hazardous disposal area. (County of La Salle ex rel. Peterlin v. Illinois Environmental Protection Agency (1982), 45 Ill. P.C.B. Op. 451.) Its interpretation is entitled to some weight in construing the statute. Adams v. Jewel Companies, Inc. (1976), 63 Ill. 2d 336, 348 N.E.2d 161.

Although our construction may tend to cause problems of enforcement as contrasted with a rule which measures strictly from the outer perimeters of the property, we are not called upon to assess the propriety or wisdom of the limits but only to interpret the statute’s provisions. We therefore reverse the trial court’s order which interpreted section 21(g) as prohibiting any part of the permitted site to be located within 1,000 feet of an off-site public well.

II

We consider next whether the trial court correctly determined that section 21(g) of the Environmental Protection Act prohibits the village of Naplate from withdrawing its approval to the siting of the hazardous disposal site within IV2 miles of the corporate limits of the village.

Section 21(g) of the Environmental Protection Act provides inter alia that in counties of population less than 225,000 approval must be obtained from the governing body of a municipality when a hazardous waste disposal site is within IV2 miles of the corporate limits.

The questions with which we are necessarily confronted in deciding this issue are whether a municipality may ever revoke its previous approval, and, if so, under what circumstances. Plaintiffs argue that once a municipality has granted its approval to locate a hazardous waste site, such approval may not be rescinded. They ground this conclusion on the maxim of construction expressio unis est exclusis altérius which provides that when a statute enumerates certain classes or things, that enumeration implies the exclusion of all others. (People ex rel. Moss v. Pate (1964), 30 Ill. 2d 271, 195 N.E.2d 641.) Plaintiffs also suggest that since the statute interferes with their free use of land in derogation of the common law, and is a penal statute, a strict construction should be applied. J.C. Penney Co. v. Andrews (1979), 68 Ill. App. 3d 901, 386 N.E.2d 923; National Talent Associates, Inc. v. Holland (1979), 76 Ill. App. 3d 556, 395 N.E.2d 142.

While it is true that the legislature granted no power to revoke a municipality’s consent, the fact that such was not given does not require that this court conclude no power exists. Rules of construction are not rules of law to be uniformly followed in all instances but are merely aids in construction which yield to the overriding purpose of all rules of statutory construction which is to find the intention of the legislature. Freeman Coal Mining Corp. v. Ruff (1967), 85 Ill. App. 2d 145, 228 N.E.2d 279.

Section 21(g) of the Act grants to municipalities power to withhold, for whatever reason, its approval to the location of a hazardous waste disposal site within IV2 miles of the boundaries of the municipality. Its decision to grant or withhold approval is not guided by limitations or conditions, unlike other provisions of the Act which imposes upon municipalities and counties specific criteria to be applied to determine if approval should be given to the location of a new regional pollution control facility. (Ill. Rev. Stat. 1981, ch. 1111/2, par. 1039.) We believe that the purpose and intent of the legislature in enacting section 21(g) was to vest in municipalities absolute veto power over siting decisions involving hazardous waste sites and that such grant carries with it by necessary implication the power to rescind previously given authorization. (See Roeseh-Zeller, Inc. v. Hollembeak (1955), 5 Ill. App. 2d 94, 124 N.E.2d 662.) In the absence of an implication of such a power, the wide latitude given municipalities would be sufficiently impaired in instances where official approval is given inadvertently or through mistake or fraud.

Ill

While we do not believe a construction which prohibits a municipality from withdrawing approval would be consistent with the purpose of the statute, nevertheless; the trial court correctly noted that the doctrine of equitable estoppel can be applied against a municipality to prevent it from creating a situation where it would be inequitable or unjust to permit it to negate what it has done or permitted to be done. The principle of equitable estoppel has been applied in numerous cases involving municipal zoning decisions and against the Pollution Control Board as well. Wachta v. Pollution Control Board (1972), 8 Ill. App. 3d 436, 289 N.E.2d 484; Pioneer Trust & Savings Bank v. County of Cook (1978), 71 Ill. 2d 510, 377 N.E.2d 21; O’Laughlin v. City of Chicago (1976), 65 Ill. 2d 183, 357 N.E.2d 472; People ex rel. Interchemical Corp. v. City of Chicago (1963), 29 Ill. 2d 446, 194 N.E.2d 199; Cos Corp. v. City of Evanston (1963), 27 Ill. 2d 570, 190 N.E.2d 364; Cities Service Oil Co. v. City of Des Plaines (1961), 21 Ill. 2d 157, 171 N.E.2d 605; Nott v. Wolff (1960), 18 Ill. 2d 362, 163 N.E.2d 809; People ex rel. Skokie Town House Builders, Inc. v. Village of Morton Grove (1959), 16 Ill. 2d 183, 157 N.E.2d 33; Fifteen Fifty North State Building Corp. v. City of Chicago (1958), 15 Ill. 2d 408, 155 N.E.2d 97.

In Wachta, the Pollution Control Board was estopped to deny sewer connection permits for residential lots previously approved by the State Sanitary Water Board (the predecessor of the Pollution Control Board) where, after the permits were issued, plaintiffs had constructed seven houses, sold five of them, constructed the sewer connections and started construction of the eighth house. As the court noted:

“Here, the State of Illinois, through its Sanitary Water Board, did the positive act of issuing sewer permits to Petitioners which induced them to continue their construction project. They, in reliance upon the action of the Water Board, expended substantial sums of money and incurred heavy continuing liabilities which would be lost should the State now be permitted to retract what its officials had done. Under these circumstances right and justice require that the public be estopped. We believe this is the correct rule to be applied in such cases. [Citations.]” Wachta v. Pollution Control Board (1972), 8 Ill. App. 3d 436, 440, 289 N.E.2d 484, 487-88.

It was held in Pioneer Trust & Savings Bank that a property owner’s reliance on the issuance of a permit to develop a tract of land created a vested right to its issuance. In that case, plaintiff was the beneficial owner of 42 acres of land in Elk Grove Township upon which he sought to construct a 132-unit retirement housing project. Prior to 1966, plaintiff’s property was zoned for single-family residences and plaintiff applied for rezoning which would have allowed him to construct the retirement units. In 1965, the zoning board of appeals, acting on plaintiff’s petition for rezoning, approved the petition with the condition that plaintiff enter into a restrictive covenant reqúiring the property to be used only for the construction of a retirement or nursing home. Plaintiff executed this covenant and developed a four-unit prototype in 1971 and in 1973 met with an architect to develop plans for the construction of the larger complex. The architect applied to the zoning administrator of Cook County for a permit but no response was given. Later, the zoning administrator instructed plaintiff to get an opinion from the State’s Attorney to determine whether construction was proper under existing zoning laws. The State’s Attorney replied in substance that it was, but when plaintiff applied for a building permit in 1975, the permit was refused because of an anticipated change in the zoning law. In 1976, plaintiff’s property was rezoned to a more restrictive classification and plaintiff then brought an action for mandamus which was granted in the trial court and affirmed by the supreme court. The court, quoting from People ex rel. Skokie Town House Builders, Inc. indicated:

“ '*** where there has been a substantial change of position, expenditures or incurrence of obligations made in good faith by an innocent party under a building permit or in reliance upon the probability of its issuance, such party has a vested property right and he may complete the construction and use the premises for the purposes originally authorized, irrespective of subsequent zoning or a change in zoning classifications.’ [Citations.]” Pioneer Trust & Savings Bank v. County of Cook (1978), 71 Ill. 2d 510, 522-23, 377 N.E.2d 21, 26.

The plaintiff in Cities Service Oil, purchased a tract of land for the construction of a gas station and received a permit from the city of Des Plaines authorizing the development of the station. Plaintiff had attempted to secure copies of applicable zoning ordinances before he proceeded with any work and in fact was given a copy of an outdated ordinance which prohibited location of a gas station within 100 feet of a school, church or theatre. After $5,373.46 in construction expenses, plaintiff received word that his building permit had been revoked because of an ordinance prohibiting the storage of gasoline within 300 feet of the boundary of a school, hospital, church or theatre. The supreme court again ruled in favor of the permit holder, concluding:

“In matters involving strictly public rights the courts do not interpose to hold the municipality estopped except under special circumstances which would make it highly inequitable or oppressive to enforce such public rights. [Citation.]
The general rule is qualified, however, to enable a party to invoke the doctrine where his action was induced by the conduct of municipal officers, and where in the absence of such relief he would suffer a substantial loss and the municipality would be permitted to stultify itself by retracting what its agents had done. [Citations.]” Cities Service Oil Co. v. City of Des Plaines (1961), 21 Ill. 2d 157, 161, 171 N.E.2d 605, 607-08.

The cases we have cited are all in accord with the general rule stated above. While defendant seeks to distinguish these authorities by suggesting that they involve zoning control, a matter of purely local concern, whereas environmental regulation is a matter of statewide concern, such arguments seem to be contrary to the spirit of section 21(g) of the Act which clearly provides for local control of the siting of hazardous waste disposal sites when such site borders the municipality concerned within Viz miles. The question which we must decide then is whether, under the facts here, the trial court’s finding that plaintiffs substantially changed their position is against the manifest weight of the evidence.

The issue of substantial reliance was raised below by defendant in an amendment to its answer. Plaintiffs then filed a verified answer to this affirmative defense in which they alleged that if the village were allowed to rescind its approval, plaintiffs would have to go through the permitting process anew by applying for a modification permit to exclude the Naplate segment from the development site. The costs of reapplying for the modification permit would certainly involve no token expenditure, and evidence was also introduced showing that several test wells had been placed upon the Naplate segment. The trial court’s determination that plaintiffs had substantially relied upon the resolution to their detriment is entitled to deference by this court and its finding should not be disturbed unless contrary to the manifest weight of the evidence. We cannot say that the trial court’s judgment is manifestly contrary to the evidence in the record. John J. Calnan Co. v. Talsma Builders, Inc. (1979), 77 Ill. App. 3d 221, 395 N.E.2d 1076.

IV

As a final issue, the defendant contends that this appeal should be dismissed because the present action does not present an actual controversy between all necessary parties.

In Illinois Gamefowl Breeders Association v. Block (1979), 75 Ill. 2d 443, 389 N.E.2d 529, a declaratory judgment action was brought challenging the constitutionality of two sections of the Humane Care for Animals Act (Ill. Rev. Stat. 1975, ch. 8, par. 701 et seq.). In discussing the requirement of an actual controversy, the court, quoting from Underground Contractors Association v. City of Chicago (1977), 66 Ill. 2d 371, 362 N.E.2d 298, stated:

“ ‘First, there must be an “actual controversy.” (Ill. Rev. Stat. 1973, ch. 110, par. 57.1(1).) “Actual” in this context does not mean that a wrong must have been committed and injury inflicted. Rather, it requires a showing that the underlying facts and issues of the case are not moot or premature, so as to require the court to pass judgment on mere abstract propositions of law, render an advisory opinion, or give legal advice as to future events. [Citations.] The case must, therefore, present a concrete dispute admitting of an immediate and definitive determination of the parties’ rights, the resolution of which will aid in the termination of the controversy or some part thereof. [Citations.]
The second, and somewhat related requirement, is that the party seeking the declaration must be “interested in the controversy.” (Ill. Rev. Stat. 1973, ch. 110, par. 57.1(1).) The word, “interested” does not mean merely having a curiosity about or a concern for the outcome of the controversy. Rather, the party seeking relief must possess a personal claim, status, or right which is capable of being affected. [Citations.] The dispute must, therefore, touch the legal relations of parties who stand in a position adverse to one another.’ [Citation.]” Illinois Gamefowl Breeders Association v. Block (Í979), 75 Ill. 2d 443, 450-51, 389 N.E.2d 529, 531.

In this appeal, it is clear that the parties are interested and that an actual controversy exists. Although no allegation was made that defendant was threatening prosecution, defendant has instructed plaintiffs that they would be proceeding at their own risk in developing the facilities at the site. It is also apparent that both parties are sufficiently interested in the present suit to provide an adversarial context within which the questions may be litigated. The plaintiffs’ interest derives from their ownership of the land, their interest in developing the site, and their authorization under their permit to commence development of the parcel, while defendant’s interest in the litigation stems from its statutory duties to investigate violations of the Environmental Protection Act. Ill. Rev. Stat. 1979, ch. 1111/2, par. 1004.

Defendant also argues that all necessary parties were not joined such that the termination of this litigation will not completely dispose of the matter since the village of Naplate was not joined as a party defendant.

In Tri-Mor Bowl, Inc. v. Brunswick Corp. (1977), 51 Ill. App. 3d 743, 366 N.E.2d 941, the court stated that it was a general rule of equity that all persons should be made parties who are legally or beneficially interested in the subject matter of the litigation and who will be affected by the decree so as to enable the court to dispose of the controversy. In that case, the court held that a necessary party was not joined in a suit to determine a lessee’s right to use an adjoining tract of land for parking space where the adjoining tract had been conveyed to a third party who was not made a party to the suit. Similarly, in Clark v. Village of Milan (1972), 3 Ill. App. 3d 569, 277 N.E.2d 895, it was held that in a suit to declare rights to obstruct a canal, all parties adjoining the canal must be joined since all of such parties had a perpetual easement in the use of the adjacent canal and their consent was required for its obstruction.

A similar situation is presented here. Just as in Tri-Mor and Clark the litigation declares rights to the use of the permitted land absent the participation of the village of Naplate which has an interest in land adjacent to the area. We thus conclude that Naplate was a necessary party to this suit and should have been made a party defendant. The claim that those parties with wells within 1,000 feet of the site were necessary parties, we find without merit. These persons are neither all identified by the record nor are their rights being determined by the present action. The conclusion of this litigation will in nowise prejudice them from obtaining other relief. The determination that Naplate was a necessary party does not require that we dismiss the present suit since an exception to the requirement of the rule of joinder of indispensable parties is present.

Where necessary parties are not joined but parties appear before the court who have the same interest as those not made parties, and who are able to protect the interest of those absent, the failure to join necessary parties is not fatal. (See Mortimore v. Bashore (1925), 317 Ill. 535, 148 N.E. 317; Cales v. Dressler (1924), 315 Ill. 142, 146 N.E. 162; Moore v. McDaniel (1977), 48 Ill. App. 3d 152, 362 N.E.2d 382; People ex rel. Carson v. Mateyka (1978), 57 Ill. App. 3d 991, 373 N.E.2d 471.) In the case at bar, the interests of both defendant and the village of Naplate are sufficiently similar to conclude that the interest of nonparties will receive actual and efficient representation. We reject defendant’s contention that neither the trial court nor this court has jurisdiction over this matter.

Ergo, for the foregoing reasons, the order of the trial court prohibiting plaintiffs from using any part of the site lying within 1,000 feet of an off-site private well is reversed, and that portion of the order finding that plaintiffs had substantially relied upon the approval of the village of Naplate is affirmed.

Affirmed in part; reversed in part.

WEBBER, RJ., concurs.

JUSTICE TRAPP,

concurring in part and dissenting in part:

I concur in the determination of the majority that the village of Nap-late was a necessary party. I dissent from the stated conclusion of the majority that the interest of the village so coincided with that of the defendant agency upon the issue of the authority of the village to withdraw its consent that there can be an appropriate representation of the village by the agency. The village acted to revoke its consent shortly after the permit was issued. The agency has issued its permit to Pioneer and so far as the record discloses has not acted or indicated any intent to revoke or modify that permit. In such light, it cannot be said that the agency has the same present interest or claim as the village.

The records of this court disclose that the village of Naplate is a party to an appeal now argued and submitted to this court, which includes the same issue of the revocation of the village’s consent. The application of the doctrine of representation in this proceeding effectively creates a collateral estoppel which prevents the village from having its day in court in that appeal. One notes that in addition to being omitted as a party to this declaratory judgment action, this action was brought in Sangamon County. The village is situated in La Salle County, some 100 miles distant. It is doubtful that the most extraordinary diligence on the part of the village could discover the present action for purposes of seeking intervention.

I concur as to the other portions of the opinion.