text:
    OAK PARK TRUST AND SAVINGS BANK, Trustee, et al., Plaintiffs-Appellees, v. THE VILLAGE OF PALOS PARK, Defendant-Appellant.
    First District (5th Division)
    No. 81-583
    Opinion filed May 7,1982.

      Frank K. Neidhart and Thomas S. Moore, both of Chicago (McCarthy, Duffy, Neidhart & Snakard, of counsel), for appellant.
    Rudnick & Wolfe, of Chicago (Theodore J. Novak and Don E. Glickman, of counsel), for appellees.
   PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court:

Defendant Village of Palos Park (Village) appeals from a declaratory judgment in favor of plaintiffs that the Village’s zoning ordinance is unconstitutional as applied to plaintiffs’ property development plan for multi-family housing units. The sole issue presented for review is whether the judgment of the trial court was against the manifest weight of the evidence.

It appears that the property in question, located on the western boundary of the Village, is rectangular and consists of about 19.6 acres fronting on a heavily travelled highway. To the north is forest preserve property; to the south is one single-family house, a riding stable and a restaurant; to the east are two single-family houses; and, to the west, more forest preserve. Plaintiff Samuel Libert, who is the beneficial owner of the property, submitted an application and plans to the Village plan commission for rezoning of the property from single-family to a planned unit development, pursuant to a Village zoning ordinance. The plans called for construction of 155 units in clusters of buildings two stories high, four units to a building. The development also was to contain a recreation center, a clubhouse, an on-site sewage treatment plant, and areas of open space. Water was to be provided by well, and access to the site was to be from the highway. The plan commission vote was tied on plaintiffs’ application, and thereafter the Village council rejected it. Plaintiffs then filed a complaint for declaratory judgment.

At trial, Libert testified that the property was formerly in unincorporated Cook County; that in 1963, the county granted him a special use permit for construction of a nursing home which was never built; that the Village subsequently annexed the property and zoned it for single-family homes; that from the time he purchased the property in 1959 to the present, he received no inquiries for use of the property for single family homes and never listed it as such; and that he received offers for more intensive uses of the property.

In plaintiffs’ case-in-chief, Rolf Campbell, a city planning and zoning consultant, testified that the proposed plan would be the highest and best use of the property based on such factors as its physical condition, availability of urban services such as fire and police protection, access to a major thoroughfare, adjacent uses such as single-family dwellings, open spaces and commercial establishments, and the need for the development relative to its “nominal adverse effect”; that another policeman would not be needed to provide service to the additional people; that although he made no study of Village expenditures for the proposed development, it would have a positive tax impact on the Village and generate tax revenues of about $276,000 per year and would yield a net increase in the tax base for each school child in the district as compared to a net decrease for a single-family development; and that, while the development appeared to conflict with the Village’s comprehensive plan, such plan was subject to future interpretation and change. On cross-examination, he testified that the existing character and trend of development in the immediate area is single-family residential.

Louis Narcisi, a registered architect who designed the planned development, testified that from an architectural standpoint, the development was the highest and best use of the land; that his conclusion was based on subsoil investigations which revealed that the costs of foundation construction would be better distributed in a multi-family development; that soil permeability favors a sewage disposal plant over septic tanks for each lot; and that, if developed for single-family uses, some lots would have “objectionable views” and others would be adjacent to the highway.

John Morris, a registered engineer who provided the engineering design for the property, testified that site plans for drainage, sewer, water, lighting, streets and parking were submitted to the Village and not objected to; that adequate water supplies and storm drainage exist for the development, although he had not assessed the impact on water supplies of surrounding property owners; that after studying various features of the site and the requirements of Village ordinances and State law, he submitted a report for proposed sewage treatment facilities to the Illinois Environmental Protection Agency (IEPA), which it approved subject to specified changes in the final plan; that the type of sewage treatment plant — called the rotating biological disc sewage treatment system— planned for the development would conform to IEPA and Metropolitan Sanitary District (MSD) requirements, although the specific plan had not been submitted to the IEPA; that effluent produced by the on-site sewage treatment plant would be discharged into Mill Creek and could improve the condition of the waterway; and that septic tanks would be unsuitable for the property because of poor soil conditions.

Terrence O’Brien, a real estate appraiser, testified that the highest and best use of the property was the proposed development; that he based his conclusion on such factors as the transition of the area from rural to urban, the proximity of a major thoroughfare, forest preserve and commercial establishments, the capacity of the site to accommodate a multi-family development and the need for it, the lack of adverse impact on surrounding properties and the lower fair market value of the site as now zoned as compared to the value if rezoned, and that, as zoned, the property is worth $300,000 but as rezoned it would be worth $515,000.

Paul Box, a traffic engineering consultant, testified that based on certain data, the highway which adjoined the property would accommodate the additional traffic from the development with the addition of a planned left-turn lane, so that the proposed development would have no adverse impact on traffic; that traffic would flow more efficiently from the proposed development with the added lane than in a single-family development with no left-turn lane even though less traffic would be created if the site were developed for single-family homes. On cross-examination, he testified that the cul-de-sac or dead-end design of the planned roadways was longer than usual because emergency exits were included; that the roadway system was comprehensible to drivers of emergency vehicles; and that adequate interior parking, sidewalks and walkways were planned.

In the Village’s case-in-chief, Mayor Rosemary Kaptur testified that public sentiment was against the project; that the proposed development would require the Village to expand its police force, create traffic hazards and sanitation problems and discourage children from playing in Mill Creek because of pollution; that the development would cause increased expenditures for the Village, although she was unsure of the amount; that the basic objection of the Village to the development was its inconsistency with the Village’s comprehensive plan; that she did not know if there had been previous deviations from the plan which itself stated that changes are expected, although she believed no deviation from the plan should be allowed to permit the development in question; and that the number of units for the development fell within the number allowed by the Village’s planned unit development ordinance.

Walker Findley, a former chairman of the Village plan commission, testified that meetings were held between 1974, when preliminary plans for the development were first presented, and 1977 when the final plan was submitted to the Village; that the final plan contained many suggested revisions which were made at those meetings; that the plan commission, in adopting the Village’s comprehensive plan, determined that the subject property would be best suited for single-family residential, with multiple-family residential on the east side of the Village; and that it did not recommend rejection of the plan, as there was a tie vote.

Richard Bailey, current chairman of the plan commission, testified that the Village had not received acceptable answers for sewer, storm water, and water supply problems.

Gerald Lindgren, a traffic engineer, testified that the internal roadway plan for the development was not “comprehensible” particularly for emergency access; that if cars were illegally parked on the street, emergency and snow removal vehicles would be impeded; that the Village ordinance prohibits cul-de-sacs of more than 500 feet, while those in plaintiffs’ plan are more than 1,000 feet; that the proposed streets are narrower than required by ordinance; that because of foliage, access to the highway would be difficult; and that such traffic problems would not occur with existing zoning.

William McCann, a real estate appraiser, testified that consistent with the present trend in the area, an economical viable use of the property would be as a single-family development “geared to an equestrian type of setting”; that the value of the property if rezoned would be worth between $480,000 and $560,000, but if zoned for single-family homes, the value would be $400,000 and less if extraordinary engineering costs were incurred; and that if the property were subdivided and roads were built, its value could increase substantially. On cross-examination, McCann testified that if an on-site sewage treatment plant met “EPA standards,” a density of greater than one single-family home per acre would be appropriate; that the development would have “minor impact” on homes adjacent to the property; and that an appraiser from his office had previously testified in favor of another planned unit development in the Village which was inconsistent with the comprehensive plan.

Raymond Bliss, the Village engineer, testified that his firm made several comments and recommendations to the plan commission concerning various aspects of the site; that plaintiffs’ plans did not indicate how the wells would be situated or connected to the main water system; that the Village might have to be a co-permittee for the on-site sewage treatment plant and would be ultimately responsible to the MSD; and that no contingency plan exists for containing the raw sewage at the site in the event of a power outage. He stated on cross-examination that he did not have objections to the proposed development but, rather, “concerns”; and that sewage treatment and disposal questions are governed by the rules of the IEPA and MSD.

Gordon Colby, an engineer working as health officer and building inspector for the Village, testified that the type of sewage treatment system planned for the development was hazardous, expensive, and unreliable; that only one such system was operating in Illinois; and that, because the property was low-lying, even single-family homes might encounter difficulties with waste treatment. On cross-examination, Colby testified that prior to the instant litigation he had never investigated such a system, had never personally inspected one, and was unaware the IEPA allows them.

Richard Stern, an urban planner, testified that the Village’s comprehensive plan had merit and is one method of determining the highest and best use of the land; that the highest and best use here was for single-family units, which is the trend of development around the site; that the single-family use would be more beneficial from a tax standpoint than would the multi-family use, although both would have a favorable tax impact; that no municipal facilities are currently available, but if sewer and water were available the best use would be for single-family units on one-half of the property and multi-family units on the other; and that, even if sewer and water were available, he would not recommend the proposed 155 units for the site. On cross-examination, he testified to preparing an alternative plan for the site showing single-family units and 50 or 60 multi-family units on the site; that a change in zoning classification would be required for constructing all the units in his plan; that the comprehensive plan was advisory and had been previously deviated from to allow the building of multi-family housing; that the nearby restaurant had the greatest adverse environmental affect on the property — followed respectively by the stable, the forest preserve, and the single family homes; and that the Village zoning ordinance was “not particularly well laid out.”

Louis Fioretti, owner of the riding stable immediately south of the property, testified that the proposed project would hinder his business; that if the Village had issued Libert a building permit, he would have sold Libert an easement but no longer intended to do so.

Ayoub Talhami, an engineer for the MSD, testified that in order for plaintiffs to become qualified by the MSD for sewer services, they would have to be co-permittees with the Village. On cross-examination, he testified that since no formal application had been made, he could not comment as to whether a permit would be granted; that if a condominium corporation were formed to operate the site, the Village would not have to be a co-permittee; and that the restaurant, which operates an on-site sewage treatment plant, does not have the Village as co-permittee.

Several nearby Village property owners testified in opposition to the proposed development, stating that they believed it would depreciate their property values.

Robert Joost testified in rebuttal that he is a mechanical engineer and president and part owner of a company which manufactures and sells rotating biological disc systems like the one proposed for the site; that he was involved in the development of the sewage treatment system planned for the site; that such systems have existed commercially for over 25 years; that he had seen several hundred such installations in the United States and Europe; that over 100 such systems exist in Illinois; that the system has been approved in Illinois and in 40 other States; that the system is viable, dependable, and requires minimal maintenance; and that the system is in use in several cities across the State. On cross-examination, he testified that such systems must be maintained by qualified operators and that he did not know how much it would cost to maintain one.

On February 10, 1981, the trial court held that the Village zoning ordinance, as applied to plaintiffs’ property, was unconstitutional, inasmuch as it bore no reasonable relationship to the health, safety, morals and welfare of the Village, and that plaintiffs’ proposed use of the property was reasonable and must be permitted. Accordingly, the court enjoined the Village from enforcing its zoning ordinance as to the plaintiffs’ use of the property. From that judgment, the Village appeals.

Opinion

• 1 The test for determining the validity of a zoning ordinance was set forth in La Salle National Bank v. County of Cook (1957), 12 Ill. 2d 40, 46-47,145 N.E.2d 65, 69:

“Even though the validity of each zoning ordinance must be determined on its own facts and circumstances [citations] “ * * among the facts which may be taken into consideration # # ” are the following: (1) The existing uses and zoning of nearby property [citations], (2) the extent to which property values are diminished by the particular zoning restrictions [citations], (3) the extent to which the destruction of property values of plaintiff promotes the health, safety, morals or general welfare of the public [citations], (4) the relative gain to the public as compared to the hardship imposed upon the individual property owner [citation], (5) the suitability of the subject property for the zoned purposes ** * * [citations], and (6) the length of time the property has been vacant as zoned considered in the context of land development in the area in the vicinity of the subject property. [Citations].”

An additional factor to be considered is the existence of a reasonable comprehensive plan for the area which incorporates valid zoning goals (Wilson v. County of McHenry (1981), 92 Ill. App. 3d 997, 416 N.E.2d 426), and while no single factor is controlling (La Salle National Bank & Trust Co. v. County of Cook (1981), 94 Ill. App. 3d 341, 418 N.E.2d 932), “of paramount importance [is] the question of whether the subject property is zoned in conformity with surrounding existing uses and whether those are uniform and established” (Gregory v. City of Wheaton (1961), 23 Ill. 2d 402, 406,178 N.E.2d 358, 360).

A zoning ordinance is presumed valid (Dietz v. Village of Midlothian (1980), 83 Ill. App. 3d 638, 404 N.E.2d 955), and the person attacking its validity bears the burden of establishing by clear and convincing evidence that the ordinance, as applied, is arbitrary, unreasonable, and not substantially related to the public health, safety, or welfare (Tomasek v. City of Des Plaines (1976), 64 Ill. 2d 172, 354 N.E.2d 899). If, however, it appears that there is only a fair difference of opinion as to the reasonableness of a zoning classification, the legislative judgment prevails. (Ward v. County of Cook (1979), 68 Ill. App. 3d 563, 386 N.E.2d 309.) Furthermore, the trial court, from its superior position to assess the credibility of witnesses, determines the weight to be accorded the evidence (Edgemont Bank & Trust Co. v. City of Belleville (1980), 85 Ill. App. 3d 665, 407 N.E.2d 159), and the findings of the trial court will not be disturbed on review unless against the manifest weight of the evidence (Pioneer Trust & Savings Bank v. County of Cook (1978), 71 Ill. 2d 510, 377 N.E.2d 21). Having considered the entire record in the context of the above principles, we conclude that the trial court did not err.

First of all, concerning the existing uses and zoning of nearby property, the record indicates that the site is in a rural area of the Village and is zoned for public use and for one-acre single-family homes and that, consistent therewith, several single-family homes are located to the south and east. Equally important, however, is that forest preserve land, a riding stable, and a restaurant also are located nearby. While the stable and the restaurant are not of themselves uses which would require a zoning change, the presence of the forest preserve and a major highway also must be considered significant. The forest preserve, as the trial court noted, provides a “buffer” in the sense that it protects the single-family homes in the area against excessive use of nearby property for multifamily development. The proximity of the highway also is a relevant factor and here militates against single-family zoning. Although residential developments often adjoin heavily-travelled roadways and have not prevented courts from finding single family residence schemes to be suitable (Zenith Radio Corp. v. Village of Mount Prospect (1973), 15 Ill. App. 3d 587, 304 N.E.2d 754), “the existence of heavy traffic conditions on a thoroughfare scarcely constitutes an argument in support of a residential classification [citations], especially single family housing” (La Salle National Bank v. City of Chicago (1977), 54 Ill. App. 3d 944, 951,369 N.E.2d 1363, 1368). In our view, the evidence supports the trial court’s conclusion that surrounding uses are mixed and that the trend of development contemplates both single- and multi-family dwellings. Consequently, the existing uses and zoning of nearby property favor the proposed development.

Secondly, as to the extent to which property values are affected, there was testimony relevant to the value of both the subject property and adjacent property. Plaintiffs’ appraiser testified that if single-family zoning were maintained, the property would be valued at $300,000, but if rezoned to permit the planned development, its value would be $515,000 — or a difference of $215,000 because of the zoning restriction. The Village’s appraiser generally agreed with that testimony, stating that as presently zoned the property was worth $400,000, but if rezoned it would be worth between $480,000 to $560,000. Thus, if the property were not rezoned, plaintiffs’ expected profit would be significantly reduced.

By contrast, the value of adjacent property would not be substantially affected. Both plaintiffs’ and the Village’s appraisers generally agreed on this question. Plaintiffs’ appraiser testified that the planned development would have no depreciatory effect, and the Village’s stated that at most the impact would be minor. Although several nearby property owners testified that the development would cause a reduction in the value of their property, we believe that in view of the expert testimony, their statements were conjectural. Indeed, Patricia Goes, an adjacent landowner, testified that she recently subdivided her property and sold some of the one-acre lots for as much as $62,000 each, which is significantly more than the appraised value of lots on the subject property and thereby supports the view of the experts that the adverse effect on adjoining property would at most be minor. Thus, here we believe that “general statements by lay witnesses regarding fear of reduction of their property value have small significance.” (Oak Forest Mobile Home Park, Inc. v. City of Oak Forest (1975), 27 Ill. App. 3d 303, 316, 326 N.E.2d 473, 484.) Finally, we note that Libert originally invested $123,000 in the property and that by the analysis of either expert, he would earn a large profit. Consideration of return is appropriate here, since the economic harm to plaintiffs is significant under the present zoning plan while the detriment to the public from the proposed rezoning is minimal. (Cf. Amalgamated Trust & Savings Bank v. County of Cook (1980), 82 Ill. App. 3d 370, 384, 402 N.E.2d 719, 730-31.) In light of the facts presented, however, the impact on property values would on the whole be more positive with the proposed development.

Next, taking the third and fourth criteria of La Salle together — the extent to which destruction of plaintiffs’ property values promotes the general welfare and the gain to the public relative to the hardship on the property owners — we think it clear that the present zoning classification provides the community with few benefits while causing plaintiffs unnecessary hardship. In this regard, plaintiffs’ planner testified that the proposed development would produce surplus tax revenues over expenditures and increase the available tax base per student. Although plaintiffs’ and the Village’s planners disagreed as to whether the development would yield a greater surplus of tax dollars than would a single-family development, the Village’s planner agreed that a multi-family development would have a favorable tax impact. Furthermore, plaintiffs’ appraiser testified to the need for housing in the price range offered by the development and that it would blend in with and preserve the surroundings.

We are also of the view that plaintiffs’ proposed on-site sewage treatment system would not pose a threat to the public welfare. The record indicates that it would satisfy IEPA requirements and would be more feasible for the site than a septic system because of site features and poor soil conditions on the property. Moreover, the proposed system would not create significant pollution hazards and may in fact improve the water quality of Mill Creek. Also, plaintiffs’ engineer, as well as one of the system’s developers, testified that the system would provide reliable and effective treatment. Against this testimony was that of the Village’s engineer, which in substance was that he only had “concerns” about the system, particularly that the Village would be a required co-permittee of the system. Additionally, the Village’s appraiser and its land planner testified that, assuming adequate water supply and sewage could be provided, both would recommend a density of greater than one-acre single family. Plaintiffs’ engineer testified that water supplies and storm drainage were adequate, although no tests were conducted to determine the impact the development would have on the water supplies of surrounding homeowners. However, the Village adverts to no evidence that the increased demand for water at the site could not reasonably be met. Also, while the Village contends that plaintiffs’ proposed sewage treatment facility was not submitted for approval, we do not think the record shows it to be unfeasible, even though an easement may have to be acquired to convey effluent to Mill Creek. (Cf. La Salle National Bank v. County of Cook (1977), 52 Ill. App. 3d 76,79, 367 N.E.2d 131,134, in which the court found the record to be “totally devoid of any evidence of the availability of” water, sanitary and storm sewers and solutions to water run-off problems; also see Du Page Trust Co. o. Village of Glen Ellyn (1978), 60 Ill. App. 3d 409, 376 N.E.2d 1049.) Finally, we are not persuaded that the present zoning classification substantially reduces the amount of traffic in the area. The Village does not argue that the highway is lightly travelled; but, rather, though it is heavily travelled, the area is properly zoned for single-family residential. Neither does the Village contend that the increased volume of traffic will have any adverse effect.

On the other hand, the hardship on plaintiffs, as referred to above, is in the form of substantial lost profits under the present zoning classification. As stated in DeMarie v. City of Lake Forest (1981), 93 Ill. App. 3d 357, 363, 417 N.E.2d 641, 645-46:

“The less substantial the relationship of the zoning to the public health, safety, comfort, morals and welfare, the more likely the zoning is invalid and the more significance the diminution in value is given as one of the criteria of invalidity. Additionally, * * * the confiscatory effect of zoning has no reference to the amount originally paid for the piece of property. Rather, it is evidenced by the difference between the fair cash market value of the property as presently zoned with what that value would be if the property were put to the proposed use. [Citation.]”

Here, depending upon which figures are adopted, plaintiff will lose between $115,000 and $260,000 under single family zoning. Such sizeable difference between the value of plaintiffs’ property with current zoning and the value under the proposed use suggests that plaintiffs have experienced substantial hardship.

Even if the Village were to incur costs of providing municipal services which outstripped increased revenues, or if the Village were required to become a co-permittee of the site’s sewage treatment plant, such consequences, in the absence of factual support in the record, does not justify the Village’s refusal to rezone the subject property. (See Glassey v. County of Tazewell (1973), 11 Ill. App. 3d 1087, 297 N.E.2d 235, in which the court rejected a similar contention that a possible increase in government expenditures warranted denial of requested zoning.) Speculation that the proposed development might cause increased local government costs or that the sewage system might be unfeasible, lacking as it does factual support, is not a valid basis for denying a proper use.

We are also of the belief that the property is less suitable for single-family than for multi-family development. The record reveals several reasons why the current zoning is inappropriate. Some of the property is low-lying and would require grading, and some of the soil is poor. Moreover, certain lots located along the highway may be difficult to sell as single-family, and the problem of sewage disposal would continue to confront single family residents at great cost. Both plaintiffs’ engineer and the Village’s health officer testified that the property was not adaptable to septic systems, and even with the type of sewage systems often used at single-family residences, it would require that effluent be removed from the property at great cost. Furthermore, the lowering of the value of the subject property for plaintiffs without any apparent corresponding gain to the public supports our conclusion as to the unsuitability of the property as zoned. As stated in Ritter v. Village of Morton Grove (1979), 70 Ill. App. 3d 640, 647, 388 N.E.2d 968, 973-74:

“The final factor of relevance in this analysis is the suitability of the property for the zoned purpose. As our supreme court has stated, ‘[t]he law does not require that the subject property be totally unsuitable for the purpose classified but it is sufficient that a substantial decrease in value results from a classification bearing no substantial relation to the public welfare.’ (La Salle National Bank v. County of Cook (1957), 12 Ill. 2d 40, 48, 145 N.E.2d 65, 69-70.)” (Also see La Salle National Bank v. City of Park Ridge (1979), 74 Ill. App. 3d 647, 393 N.E.2d 623.)

In addition, Libert testified that except for some inquiries no interest had ever been expressed to him for use of the property as single family. In the present case, therefore, while it is clear that the subject property would not be totally unsuitable for use as single-family residences, we believe that a substantial decrease in the value of the property to plaintiffs has resulted from the present classification and that no substantial relation to the public welfare is apparent. Accordingly, we conclude that the present classification causes undue hardship on plaintiffs without promoting the health, safety, morals or general welfare of the Village in any discernible manner.

The final factor under the La Salle test is the length of time the property has been vacant as zoned. Here, the property has been vacant as zoned since 1963 when it was purchased by the current owner. Although Libert never actively marketed the property as zoned, he received inquiries about the property but no offers for its use for single-family homes, despite the fact that through public hearings over the proposed rezoning, the property attained publicity.

In general, the party relying on the length of time its property has been vacant must establish that the property is unsaleable, vacant, or undeveloped because of the zoning classification. (Amalgamated Trust & Savings Bank v. County of Cook (1980), 82 Ill. App. 3d 370, 402 N.E.2d 719; Western National Bank of Cicero v. Village of Downers Grove (1970), 122 Ill. App. 2d 107, 257 N.E.2d 803.) However, in the present case, there were unsuccessful attempts to develop the property when Libert sought and was granted a special use permit for construction of a nursing home and when he unsuccessfully sought rezoning for multifamily use from the Cook County Zoning Board of Appeals. Those events, coupled with the evidence that no offers were received to use the property as zoned, do not in our view lead to the conclusion that improper zoning was not the reason the property has remained vacant or that the property has remained vacant because of plaintiffs’ choice. We believe, therefore, that the length of time the property has been vacant weighs in favor of the proposed zoning change.

Finally, we believe that the Village’s comprehensive plan was properly considered. The record indicates that the plan generally calls for the placement of more intensive uses, such as commercial and multi-family, at the business center of town and for less intensive uses in areas away from the business center. Although such a plan must be considered, it is not the predominant factor. (Cleys v. Village of Palatine (1980), 86 Ill. App. 3d 630, 411 N.E.2d 1161; Parkway Bank & Trust Co. v. County of Lake (1979), 71 Ill. App. 3d 421, 389 N.E.2d 882.) In the present case, the Village’s land planner testified to preparing a schematic showing 68 units for the property, contrary to the comprehensive plan, and the planner and the Village’s appraiser testified that if satisfactory sewer and water were provided, a use more intensive than one-acre single-family would be appropriate. The planner further testified that the Village had previously departed from the plan for purposes of permitting another multi-family development, and the appraiser testified that a member of his staff had previously testified in favor of a multi-family development contrary to the plan. The plan itself was described as “advisory” and as contemplating changes.

Although not presented as separate issues, the Village raises several questions related to the trial court’s decision. First, the Village contends that the use of a rotating biological disc system was not proposed to it prior to trial. In this regard, we note that the IEPA apparently changed its regulations shortly before trial, no longer allowing activated sludge systems like the one plaintiffs originally proposed, and instead permitting the rotating biological disc system. Plaintiffs thus proposed to employ such system in order to meet IEPA regulations. It further appears that the Village would have rejected plaintiffs’ planned development even with the new system; that, as the Village mayor testified, the sewage treatment problem was “peripheral”; and that the Village plan commission chairman would remain opposed to the plan even if engineering problems were solved. A party challenging the constitutionality of a statute as applied in an arbitrary or discriminatory manner must ordinarily pursue all administrative remedies before seeking judicial relief. (Walker v. State Board of Elections (1976), 65 Ill. 2d 543, 359 N.E.2d 113.) In the present case, however, the rule requiring exhaustion of administrative remedies through resubmission of the plan, including the new sewage treatment system, is inapplicable inasmuch as administrative relief would not be forthcoming (Northbrook Trust & Savings Bank v. County of Cook (1977), 47 Ill. App. 3d 879, 365 N.E.2d 433, cert, denied (1978), 434 U.S. 1069, 55 L. Ed. 2d 771, 98 S. Ct. 1249; Bass v. City of Joliet (1973), 10 Ill. App. 3d 860, 295 N.E.2d 53), and the fundamental dispute between the parties would be unchanged (Sulzberger v. County of Peoria (1963), 29 Ill. 2d 532, 194 N.E.2d 287). It is similarly unavailing for the Village to assert that plaintiffs’ plan is indefinite and requires resubmission, since the record indicates that the Village would not approve it in any event. As to the Village’s claim that the proposed sewage treatment plan is dangerous, we note, as discussed hereinabove, that the record does not support such conclusion.

We also find no basis in the record for the Village’s claim that the trial court failed to consider the Village’s objections to plaintiffs’ plan for providing utilities. To the contrary, the trial court deferred to the expertise of the MSD and other appropriate administrative agencies and as part of its final order stated that the planned development could proceed only upon “proper application and compliance with all applicable codes.” Thus, it appears to us that the IEPA has given preliminary approval to plaintiffs’ sewage disposal system, and construction cannot proceed unless both the IEPA and the MSD approve sewer, water, and drainage plans within their competence, inasmuch as their approval is determinative. We believe the trial court’s deference to those agencies on such matters was proper. See Treadway v. City of Rockford (1962), 24 Ill. 2d 488, 182 N.E.2d 219; Sinclair Pipe Line Co. v. Village of Richton Park (1960), 19 Ill. 2d 370,167 N.E.2d 406; Smith v. County Board (1980), 86 Ill. App. 3d 708, 408 N.E.2d 452; Wright v. County of Winnebago (1979), 73 Ill. App. 3d 337, 391 N.E.2d 772.

Finally, we believe that contrary to the Village’s position, the trial court gave proper weight to the presumed validity of the ordinance. As stated in Bauske v. City of Des Plaines (1957), 13 Ill. 2d 169, 181, 148 N.E.2d 584, 590:

“Mere conflict in testimony as to the highest and best use of property, the impact of the proposed land use on the areas involved or its effect upon property values, does not make irrebuttable the presumption that an ordinance is valid.”

It is apparent from the record that plaintiffs’ evidence constituted more than a fair difference of opinion concerning the reasonableness of the classification; indeed, they have met their burden of demonstrating that the zoning ordinance in question is arbitrary and capricious (cf. Dietz v. Village of Midlothian (1980), 83 Ill. App. 3d 638,404 N.E.2d 955), and the trial court, in our view, properly performed its basic task of balancing the hardship imposed upon the property owner against the gain, if any, to the public (see Jeisy v. City of Taylorville (1980), 81 Ill. App. 3d 442, 401 N.E.2d 627).

We recognize that property owners are entitled to the unrestricted use of their property, subject only to restraints necessary to protect the public welfare. (Columbus Park Congregation of Jehovah’s Witnesses, Inc. v. Board of Appeals (1962), 25 Ill. 2d 65, 182 N.E.2d 722.) Zoning laws which limit the rights of property owners are enacted pursuant to the State’s police power which, when delegated to a municipality, must have a real and substantial relationship to the health, safety, morals, or welfare of the public (La Salle National Bank v. City of Chicago (1977), 54 Ill. App. 3d 944, 369 N.E.2d 1363), and if it is shown that a challenged zoning ordinance, as here, bears no reasonable relationship to the public welfare, it must fall (La Salle National Bank v. County of Cook (1957), 12 Ill. 2d 40, 145 N.E.2d 65).

For the reasons stated, we hold that the decision of the trial court was not against the manifest weight of the evidence, and we affirm.

Affirmed.

LORENZ and MEJDA, JJ., concur.

       After abandoning the plan to build a nursing home, Libert applied to the Cook County Zoning Board of Appeals to have the property rezoned for high-density, multi-family use. That application was denied.


source: Caselaw Access Project

author: JUSTICE MEJDA

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JUSTOVIA CAIN, Defendant-Appellant.
    First District (5th Division)
    No. 81-706
    Opinion filed May 7, 1982.
    Ralph Ruebner, Steven Clark, and Scott Graham, all of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Casimir J. Rartnik, and Randall E. Roberts, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE MEJDA

delivered the opinion of the court:

This appeal raises the issue whether a defendant who is ineligible for probation under the Unified Code of Corrections (the Code) (Ill. Rev. Stat. 1979, ch. 38, par. 1001 — 1—1 et seq.) is nonetheless eligible to be placed on supervision and to receive treatment under the Dangerous Drug Abuse Act (the Act) (Ill. Rev. Stat. 1979, ch. 91%, par. 120.1 et seq.) as an alternative to imprisonment.

Defendant Justovia Cain was found guilty of having committed a robbery which occurred on September 13,1980. At the sentencing hearing on February 18, 1981, defendant requested that the court allow him to elect treatment for his drug abuse problem instead of sentencing him to a prison term. The trial court denied defendant’s request finding that, because defendant was ineligible for probation under the Unified Code of Corrections due to having been convicted of another Class 2 felony within 10 years (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 5—3(c)(2)(F)), he was therefore ineligible for treatment under the Dangerous Drug Abuse Act.

Defendant argues in reliance on People v. Teschner (1980), 81 Ill. 2d 187,407 N.E.2d 49, that the provisions of the Unified Code of Corrections are not controlling and should not be superimposed on the provisions of the Dangerous Drug Abuse Act. However, Teschner was limited to an interpretation of the Act prior to the amendment of section 10 which was effective on September 20, 1979.

At the time defendant committed the offense in the instant case, section 10 of the Dangerous Drug Abuse Act provided in pertinent part:

“If the court * * * determines 0 0 0 that supervision of the Department for treatment is inconsistent with Section 5 — 6—1(a), the court shall proceed to pronounce sentence as in other cases.” (Ill. Rev. Stat. 1979, ch. 91%, par. 120.10.)

Section 10 of the Act was amended again between the time the offense was committed and the date of the sentencing hearing. The relevant part of that amendment, effective September 26,1980, states:

“If the court ” ” ” determines * 0 * that supervision of the licensed program designated by the Commission for treatment is inconsistent with Section 5 — 6—1(a), the court shall proceed to pronounce sentence as in other cases.” (Ill. Rev. Stat., 1980 Supp., ch. 91%, par. 120.10.)

Both versions of the statute, however, mandate that treatment under the Dangerous Drug Abuse Act be consistent with section 5 — 6—1(a) of the Code.

Section 5 — 6—1(a) of the Unified Code of Corrections authorizes the trial court to impose a sentence of probation upon an offender except where specifically prohibited by other provisions of the Code. (Ill. Rev. Stat. 1979, ch. 38, par. 1005-6-1 (a).) Section 5-5 — 3(c)(2)(F) of the Code in turn prohibits the imposition of a period of probation upon conviction of:

“A Class 2 or greater felony if the offender had been convicted of a Class 2 or greater felony within ten years of the date on which he committed the offense for which he is being sentenced.” Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 5-3(c)(2)(F).

In People v. Andrews (1981), 95 Ill. App. 3d 595,420 N.E.2d 509, this court addressed the identical question as that which is presented in Teschner and in the instant case. However, the felony underlying the sentencing issue in Andrews was committed on February 20, 1979, prior to the 1979 amendment, but defendant was sentenced subsequent to its effective date. We therefore held that defendant was entitled to elect to be sentenced under either the law in effect at the time the offense was committed or the law in effect at the time of sentencing. Nonetheless, we addressed the prospective effect of the amendment to section 10 of the Act, stating:

“Effective September 20, 1979, however, section 10 was legislatively amended to provide that ‘If * * * treatment is inconsistent with section 5 — 6—1(a) [of the Corrections Code], the court shall proceed to pronounce sentence as in other cases’ and therefore cannot invoke the alternative provided by the Act. (Ill. Rev. Stat. 1979, ch. 91%, par. 120.10.) Section 5 — 6—1(a) of the Corrections Code (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 6—1(a)) in turn incorporates the probation and parole eligibility requirements of section 5 — 5—3 discussed above. Therefore, the September 20, 1979, amendment now does superimpose the parole and probation eligibility requirements of the Corrections Code onto the Act.” 95 Ill. App. 3d 595, 600, 420 N.E.2d 509, 512.

We now hold, as we noted in Andrews, that the legislative amendments to section 10 of the Dangerous Drug Abuse Act effective September 20, 1979, and September 26, 1980, superimpose the probation eligibility requirements of the Unified Code of Corrections on the Act. Since defendant in this case is ineligible for probation under the Unified Code of Corrections, the option to elect supervision and treatment under the Dangerous Drug Abuse Act is inconsistent with section 5 — 6—1(a) of the Code. Accordingly, the trial court correctly determined that defendant was ineligible for treatment under the Act as amended.

The judgment of the circuit court is affirmed.

Judgment affirmed.

SULLIVAN, P. J., and WILSON, J., concur.

       Defendant was convicted of burglary in 1979. Ill. Rev. Stat. 1979, ch. 38, par. 19 — 1.

       Section 10 of the Dangerous Drug Abuse Act was further amended by Pub. Act 82-519, effective January 1,1982. That amendment, which is not relevant to the case at bar, deleted the reference to section 5 — 6—1(a) of the Code.


author: PRESIDING JUSTICE SULLIVAN

text:
    RUTH DANIELS, Plaintiff-Appellant, v. THE RETIREMENT BOARD OF THE POLICEMAN’S ANNUITY AND BENEFIT FUND, CITY OF CHICAGO, et al., Defendants-Appellees.
    First District (5th Division)
    No. 81-1127
    Opinion filed May 7, 1982.
    Sheldon Hodes, of Chicago, for appellant.
    Stanley Garber, Corporation Counsel, of Chicago (Robert R. Retke and Cheryl L. Smalling, Assistant Corporation Counsel, of counsel), for appellees.
   PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court:

Plaintiff appeals from a judgment on administrative review affirming a decision of the Retirement Board of the Policeman’s Annuity and Benefit Fund of Chicago (Board), which denied widow annuity benefits to her. She contends that (1) the evidence did not rebut the presumption that a divorce occurred between her deceased husband and his first wife, defendant Marion Daniels Robinson; and (2) she is a putative spouse under section 305 of the Illinois Marriage and Dissolution of Marriage Act (the Act) (Ill. Rev. Stat. 1979, ch. 40, par. 305).

The record discloses that plaintiff and defendant filed claims for widow annuity benefits with the Board following the death in 1975 of James Daniels (deceased), a member of the Chicago Police Department. Plaintiff also sought a child annuity benefit for her son, Darryl Daniels, whose father was the deceased. It appears that deceased and defendant were married in 1945 in Arkansas, with no children born or adopted as a result of that marriage. Thereafter, defendant married Henry Robinson in 1949, and deceased married plaintiff in 1949. Copies of all marriage certificates were received in evidence.

At the Board hearing, defendant testified that she never received notice that deceased had sought or obtained a divorce from her, and that during her marriage to Henry Robinson deceased came to her residence in Arkansas and told her that he had never divorced her, that she was still his wife, and that her marriage to Henry Robinson was not legal. Della Daniels, mother of deceased, testified that she had always resided with deceased except for two years in the late 1950’s; that he never told her of divorcing defendant; that the last time she asked him whether he was going to divorce defendant, he replied that “Marion is forever going to be my wife”; that plaintiff knew he had not divorced defendant; and that he “told everybody he wasn’t going to divorce his wives. He only married those girls to certify they are mothers, and they know it.” Plaintiff testified that she was married to deceased and, in support thereof, produced her marriage certificate and presented an assignment of the beneficial interest in a certain land trust identifying her as the wife of deceased, which document was signed by Della Daniels. However, no evidence of any divorce proceeding terminating the marriage of deceased and defendant was presented by plaintiff.

Concluding that the marriage between deceased and defendant had not terminated in divorce and that she was the widow of deceased at the time of his death, the Board ordered that widow annuity benefits be awarded to defendant, with child annuity benefits to Darryl.

On administrative review, plaintiff requested only that the grant of benefits to defendant be reversed and that they be awarded to her. The circuit court affirmed the decision of the Board, and later it denied plaintiff’s post-trial motions to vacate its affirmance and to allow a recovery of annuity benefits to her as a putative spouse under section 305 of the Act. This appeal followed.

Opinion

Plaintiff first contends there was an absence of admissible evidence to rebut the presumption that there was a divorce between deceased and defendant. She maintains that the only evidence in rebuttal of the presumption was the inadmissible hearsay testimony of defendant concerning a conversation with deceased in which he told her that they were not divorced, and the testimony of Della Daniels to the effect that deceased had never told her of any proceedings instituted by him to divorce defendant. We find this contention to be without merit.

It was stated in Sparling v. Industrial Com. (1971), 48 Ill. 2d 332, 336-37, 270 N.E.2d 411, 413, that:

“[I]n the absence of evidence to the contrary, we will presume a previous divorce in order to sustain a second marriage. [Citations.] We have also said, however, that the presumption may be rebutted by evidence which, standing alone, affords reasonable grounds for concluding that no divorce has been secured. [Citations.]”

In Sparling, the deceased married his first wife in 1954 and his second in 1956. The first wife testified that although preparations for divorce proceedings had been made, a divorce had never taken place and that she had never instituted a divorce action and knew of none brought against her by deceased. Finding that deceased had lived intermittently with his first wife and that there was no evidence of a divorce, the court held the first wife was entitled to receive the contested benefits, concluding that the presumption of a divorce between the first wife and deceased was rebutted.

Similarly, in the instant case, it appears to us that the evidence was sufficient to rebut any presumption that deceased and defendant were divorced. Defendant testified that she married deceased in 1945 and introduced her marriage certificate in support thereof; that after her marriage in 1949 to Henry Robinson, the deceased — who was then living in Chicago — visited her in Arkansas, where he informed Robinson and her that their marriage was not legal because he (deceased) and she had not been divorced. Defendant further testified that she did not sign divorce papers or receive a divorce decree, and that shortly before the death of deceased in 1975 he told her that she was still his wife.

Corroborative of defendant to some extent was the testimony of Della Daniels, who stated that except for a period of about two years in the late 1950’s she maintained her residence with the deceased and, although she was familiar with his personal life, he never told her that he had divorced defendant and said that he was not going to divorce any of his wives. She also testified that plaintiff was aware that no divorce had occurred between deceased and defendant.

As in judicial proceedings, hearsay evidence is generally inadmissible in administrative hearings unless it satisfies the requirements of an exception to the rule excluding hearsay. (Cox v. Daley (1981), 93 Ill. App. 3d 593, 417 N.E.2d 745; Baehr v. Health & Hospital Governing Com. (1980), 86 Ill. App. 3d 43,407 N.E.2d 817; Spaulding v. Howlett (1978), 59 Ill. App. 3d 249, 375 N.E.2d 437; also see Ill. Rev. Stat. 1979, ch. 110, par. 275(2).) In the present case, contrary to plaintiffs position, it appears that the testimony in question, although hearsay, was admissible under the exception for statements of personal or family history. This exception requires that the declarant be dead, the declaration be made before the controversy arose, and the declarant be related by blood or marriage to the family to which the declarations refer. (Welch v. Worsley (1928), 330 Ill. 172,161 N.E. 493; Sugrue v. Crilley (1928), 329 Ill. 458,160 N.E. 847, cert, denied (1928), 278 U.S. 616, 73 L. Ed. 539, 49 S. Ct. 20.) The principle underlying this exception is that as to events generally regarded as important in the family life, statements by family members are likely to be objective, sincere, and reliable. As stated in Wigmore: “This certainly includes the fact and date of birth, marriage, and death, and the fact and degree of relationship * * (5 Wigmore, Evidence sec. 1500 (Chadbourn rev. 1974).) In our view, the testimony of defendant and that of Della Daniels complied with those requirements. Moreover, insofar as the record indicates, Della Daniels was a neutral party, and plaintiff does not specifically assert that her testimony was inadmissible but only that it “could be construed to be inadmissible hearsay.”

Additional corroboration of the testimony of defendant and Della Daniels comes from the Board’s inability to locate a divorce decree relating to defendant and the deceased after a search of the records in Cook County, Illinois, and Phillips County, Arkansas — their two domiciles. We note that in Sparling, the court records were apparently not checked for a divorce decree, yet the first wife was awarded benefits based solely upon her testimony. Furthermore, like the first wife in Sparling, defendant here testified that the deceased maintained contact with her and knew where she lived. The court in Sparling stated that the deceased’s knowledge of his first wife’s residence, together with the testimony of the first wife that she received no notice and had no knowledge of a divorce action, “afforded reasonable grounds for believing that no divorce had been obtained by the deceased.” (48 Ill. 2d 332, 337, 270 N.E.2d 411, 414.) We believe the evidence supporting defendant’s position here is stronger than that of the first wife in Sparling and that it sufficiently rebuts the presumption that there was a divorce between defendant and deceased. Therefore, we find that the circuit court correctly ruled that the decision of the Board to award the annuity to defendant was not against the manifest weight of the evidence. See Hodges v. Board of Trustees (1979), 73 Ill. App. 3d 978, 392 N.E.2d 417; Schnulle v. Board of Fire & Police Commissioners (1974), 16 Ill. App. 3d 812, 306 N.E.2d 906.

We also reject plaintiffs contention that she is entitled to the annuity as the putative spouse of deceased based on section 305 of the Act. (Ill. Rev. Stat. 1979, ch. 40, par. 305.) That section provides in relevant part:

“Any person, having gone through a marriage ceremony, who has cohabited with another to whom he is not legally married in the good faith belief that he was married to that person is a putative spouse until knowledge of the fact that he is not legally married terminates his status and prevents acquisition of further rights. A putative spouse acquires the rights conferred upon a legal spouse “ * “.If there is a legal spouse or other putative spouse, rights acquired by a putative spouse do not supersede the rights of the legal spouse or those acquired by other putative spouses, but the court shall apportion property * * * among the claimants as appropriate in the circumstances and in the interests of justice.”

The rights of a putative spouse are conferred upon anyone “who has gone through a marriage ceremony and cohabited with another in the good faith belief that they were married to each other.” (Ill. Ann. Stat., ch. 40, par. 305, Historical and Practice Notes, at 97 (Smith-Hurd 1980).) While the rights conferred are those of a legal spouse, they “are limited to the period in which the party had no knowledge of the invalidity of the marriage,” and if there are conflicting claims as between a putative spouse and a legal spouse, a fair and efficient apportionment of property should be made, which is likely to be in accordance with the length of time each spouse cohabited with the common partner. Ill. Ann. Stat., ch. 40, par. 305, Historical and Practice Notes at 97-98 (Smith-Hurd 1980).

Plaintiff first presented this claim on administrative review as a post-trial motion and, since she did not raise it before the Board, she is foreclosed from asserting it on appeal to this court. (Robert S. Abbott Publishing Co. v. Annunzio (1953), 414 Ill. 559, 112 N.E.2d 101; Village of Cary v. Pollution Control Board (1980), 82 Ill. App. 3d 793,403 N.E.2d 83; also see Ill. Rev. Stat. 1979, ch. 110, par. 274.) Moreover, it appears that plaintiff acquired no such rights, since the evidence discloses that she knew deceased and defendant had not been divorced and was thus aware that the marriage between her and the deceased was not legal. There was, in addition, the testimony from Della Daniels that deceased said he had not divorced defendant. Plaintiff did not negate that testimony, and nowhere else in the record does it appear that she denied knowing that defendant and deceased had not been divorced. In light of plaintiffs knowledge that she was not legally married, she did not acquire putative spouse status under section 305.

For the reasons stated, the judgment of the circuit court is affirmed.

Affirmed.

LORENZ and WILSON, JJ., concur.


author: PRESIDING JUSTICE STAMOS

text:
    FILENE GALLAGHER, Plaintiff-Counterdefendant, v. JOSEPH SWIATEK et al., Defendants-Counterplaintiffs.—(WILLIAM L. KUNKEL & COMPANY, Plaintiff-Counterdefendant, v. FILENE GALLAGHER, Defendant-Counterplaintiff and Third-Party Plaintiff-Appellee.—(MELVIN J. SPOTTS, Third-Party Defendant-Appellant).)
    First District (2nd Division)
    No. 81-530
    Opinion filed May 11,1982.

      Michael G. Stein, of Silverstein & Stein, of Chicago, for appellant.
    Vincent F. Giuliano and Fishleder, Adler and Adler, both of Chicago, for appellee.
   PRESIDING JUSTICE STAMOS

delivered the opinion of the court:

This cause has involved several claims and several parties but only two parties are involved in the instant appeal. Filene Gallagher is third-party plaintiff. Melvin J. Spotts is third-party defendant. Gallagher won a judgment against Spotts in the amount of $5,090. Spotts’ attorney was not present when the judgment was awarded. The attorney was also absent when the trial court denied Spotts’ motion to vacate the judgment. Spotts appeals. He contends that the trial court abused its discretion when it (1) denied a continuance to allow Spotts’ attorney to argue the motion to vacate the judgment and (2) denied the motion to vacate the judgment.

This dispute arose in a real estate deal gone bad. Gallagher owned a house and lot in Park Ridge, Illinois. In May 1978, Gallagher engaged the services of William L. Kunkel & Company, a real estate broker, to sell the property. Kunkel showed the property to Joseph and Jeanette Swiatek. The Swiateks, who intended to demolish the house and construct a four-unit apartment building on the lot, executed a contract to purchase the property. The contract stated that the lot was “approximately 50 x 189.5” feet. At the time of the closing, Gallagher tendered a recent survey which showed the dimensions of the lot to be 50 feet by 168 feet. According to a local zoning ordinance, the lot was too small to permit a four-unit apartment building. (A four-unit building would have been allowed on a lot 189 feet deep.) The Swiateks refused to close the deal.

In preparing the contract of sale, Kunkel relied on information provided by Gallagher. In supplying the dimensions of the lot, Gallagher relied on a survey completed in 1976 by Spotts, a registered land surveyor. Spotts’ survey shows the dimensions of the lot as 50 feet by 189.5 feet.

Gallagher sued the Swiateks, asking the court to order that the sale proceed. The Swiateks counterclaimed to recover their earnest money deposit. Kunkel sued Gallagher for its broker’s commission. Gallagher counterclaimed against Kunkel. Gallagher also filed a counterclaim against Spotts, seeking indemnity in the event judgment was entered against her. The trial court consolidated all the suits.

The trial commenced on November 5,1980. Testimony was heard on November 5, 6 and 7. On November 7, the court dismissed Gallagher’s complaint against the Swiateks and Gallagher’s counterclaim against Kunkel. The court also ordered Kunkel to return the Swiateks’ earnest money deposit. The trial was then continued to January 6, 1981. For reasons not shown in the record, the trial did not resume until January 20, 1981. In the interim, the court heard cross-motions for summary judgment on Kunkel’s complaint against Gallagher. On January 16, 1981, the court entered summary judgment in favor of Kunkel in the amount of $5,090 (the amount of the commission Kunkel had earned for its services as a broker).

The remaining matters came up for trial on January 20. In his appellant’s brief, Spotts refers to this as an “unscheduled trial,” but it is apparent that Spotts’ attorney (Michael Stein) was aware of the trial date, as he sent an associate to ask for a continuance. The associate, Stephanie Kucherak, appeared in court and advised that Stein was attending the funeral of the wife of a circuit court judge. Kucherak asked fol a short continuance. Gallagher’s attorney informed the court that he was ready to proceed with the trial. The court indicated that the trial would go forward.

The proceedings were, however, quite short. No witnesses were called. Gallagher’s attorney called the court’s attention to the testimony of third-party defendant Spotts, who had admitted (in his testimony on November 6) that his survey was in error. Gallagher’s attorney also tendered a copy of the $5,090 judgment that Kunkel had obtained against Gallagher. The trial court then entered judgment against Spotts for $5,090.

Spotts’ attorney (Stein) filed a motion to vacate the judgment. This motion does not appear in the record, but it apparently was set for argument on January 29, 1981. On that date, Stephanie Kucherak again appeared on behalf of Stein. Kucherak presented her affidavit that Stein was in the hospital, scheduled for surgery the following week. Kucherak requested a continuance to February 19. It appears that Spotts’ motion to vacate the judgment was accompanied by Spotts’ affidavit. Like the motion, the affidavit is not in the record but, from the comments of the court and counsel, it appears that Spotts’ affidavit related a conversation between Stein and Adler (Gallagher’s attorney) wherein the latter agreed to continue the trial past January 20. Gallagher’s attorney vigorously denied that he had agreed to a continuance. The trial court observed that Spotts’ affidavit was incompetent hearsay because it related a purported conversation between Adler and Stein. The court then denied both the motion for a continuance and the motion to vacate the judgment.

Spotts does not contend on appeal that the trial court abused its discretion in denying the motion to continue the trial. Such a contention would be meritless. It is well settled that especially grave reasons must be given to justify a continuance once a case has reached the trial stage. (See Needy v. Sparks (1977), 51 Ill. App. 3d 350, 358, 366 N.E.2d 327; see also Ill. Rev. Stat. 1979, ch. 110A, par. 231(f) (no motion for continuance will be heard after a cause has reached the trial stage unless sufficient reason is shown for the delay).) Spotts’ attorney was attending a funeral on the day set for trial. He sent an associate to court to move for a continuance. The denial of the motion was not an abuse of the trial court’s discretion.

We also note that Spotts does not contend on appeal that the judgment was against the manifest weight of the evidence. Spotts’ contention that the trial court erred in denying the motion to vacate the judgment must be evaluated in this light. If the continuance during trial was properly denied and if the judgment is supported by the evidence, what was the basis for Spotts’ motion to vacate the judgment? Spotts argues that the judgment was rendered ex parte. This is incorrect. “An ex parte proceeding is one brought for the benefit of one party only and without notice to the other party or an opportunity for that party to be heard.” (Wilson-Jump Co. v. McCarthy-Hundrieser & Associates (1980), 85 Ill. App. 3d 179, 185, 405 N.E.2d 1322.) Spotts had notice of the hearing and would have been given an opportunity to be heard if his attorney had elected to attend the trial.

This court considered a similar situation in Nixon v. Harris (1975), 31 Ill. App. 3d 204, 333 N.E.2d 667. In that case, the defendant and her attorney were absent on the day set for trial and, following a jury trial, judgment was entered for the plaintiff. The defendant thereafter moved to vacate the judgment. We there observed that a party is not required in his motion to show a meritorious defense and a reasonable excuse for not asserting that defense. Nevertheless, a showing of a meritorious defense and a reasonable excuse are factors that the trial court should consider in determining whether the judgment should be vacated. 31 Ill. App. 3d 204, 211.

As noted above, Spotts has not preserved in the record his motion to vacate the judgment. Spotts has not shown a meritorious defense, has not shown a sufficient excuse for not offering a defense, and has not shown that the judgment is unsupported by the evidence. Spotts has only shown that his attorney had a reasonable excuse for not attending the hearing on January 29, 1981. Given the circumstances, however, it does not appear that Stein’s absence on January 29 was a material factor in the trial court’s denial of the motion to vacate the judgment. We conclude that the trial court did not abuse its discretion in denying Spotts’ motion to vacate the judgment. Cf. Conley v. Peoples Gas, Light & Coke Co. (1980), 82 Ill. App. 3d 1094,1100,403 N.E.2d 625 (decision to vacate a judgment within 30 days of entry rests within the sound discretion of the trial court).

Spotts also contends that the trial court abused its discretion in denying a continuance on January 29 when Stein was in the hospital and unable to attend the hearing. In Jarvis v. Shacklock (1871), 60 Ill. 378, our supreme court considered a claim that the trial court erroneously denied a continuance when the defendant’s counsel was ill. The court observed that the issue to be tried was uncomplicated and could have been handled by another attorney with a few minutes’ preparation. The court held that the motion was properly denied. 60 Ill. 378, 379; see also City of Elgin v. Nofs (1904), 212 Ill. 20, 23, 72 N.E. 43 (two of appellant’s attorneys were ill; no showing that remaining attorney could not have handled the defense; no abuse of discretion in denying the motion for continuance).

In the case at bar, Stein’s associate appeared in court on January 29 to ask for a continuance. There has been no showing that Kucherak or another attorney could not have argued the motion. Spotts suggests that Stein’s attendance was required because Stein was a “key witness” at the hearing, presumably because he could have testified concerning his prior conversations with Gallagher’s attorney. This argument also fails. If the continuance was sought because of the absence of a witness (Stein), the continuance was properly denied because the motion did not contain the affidavit of that witness, describing the evidence to be adduced. (See Ill. Rev. Stat. 1979, ch. 110A, par. 231(a); see also Mann v. People (1981), 98 Ill. App. 3d 448,452,424 N.E.2d 883 (affidavit of the witness is mandatory in such a case).) Moreover, it is not clear how Stem’s testimony could have advanced the motion. Spotts implies that Stein could have testified concerning his absence on January 20 and his conversation with Adler (Gallagher’s attorney) regarding a continuance, but, as has been shown, the trial court properly denied a continuance from January 20, and Spotts does not contest that denial.

A trial court has broad discretion to allow or deny motions for continuance. (Thilman & Co. v. Esposito (1980), 87 Ill. App. 3d 289, 293, 408 N.E.2d 1014.) Absent a manifest abuse of that discretion, a reviewing court will not reverse the decision of the trial court. (Thilman & Co. v. Esposito (1980), 87 Ill. App. 3d 289, 294.) We find that the trial court did not abuse its discretion in denying a continuance of the January 29 hearing.

The judgment of the trial court is affirmed.

Affirmed.

DOWNING and PERLIN, JJ., concur.


text:
    STEWART MARCOWITZ et al., Plaintiffs-Appellants, v. THE DEPARTMENT OF PUBLIC HEALTH et al., Defendants-Appellees.
    First District (2nd Division)
    No. 81-861
    Opinion filed May 11, 1982.

      Lapat, Saunders & Fields, Ltd., of Chicago, for appellants.
    Tyrone C. Fahner, Attorney General, of Chicago (Edward M. Kay, Assistant Attorney General, of counsel), for appellees.
   PRESIDING JUSTICE STAMOS

delivered the opinion of the court:

Plaintiffs appeal from the trial court’s affirmance of an administrative order suspending their ambulatory surgical treatment center license for 30 days. The suspension was based on Dr. Stewart Marcowitz’ refusal to permit officials from the Department of Public Health (the Department) to inspect plaintiffs’ medical facility. Plaintiffs contend: (1) their medical facility, the Oak Lawn Surgical Center, does not fall within the purview of the Ambulatory Surgical Treatment Center Act (the ASTC) (Ill. Rev. Stat. 1979, ch. 111%, par. 157 — 8.1 etseq.)i (2) the inspections requested by the State officials were unreasonable invasions of privacy; and (3) the requested inspections amounted to unreasonable interference with the physician-patient relationship.

On June 17,1980, the Department issued “Allegations of Noncompliance” against plaintiffs alleging that Department employees were denied the right to inspect plaintiffs’ medical facility on April 24 and May 22, 1980. An administrative hearing was held on October 9, 1980. The following evidence was testified to by Department employees.

On April 24,1980, two female Department employees, one a hospital nurse consultant and the other a social worker, traveled to plaintiffs’ facility to conduct a survey (inspection). The two employees arrived at the Oak Lawn Surgical Center at 1 p.m. Dr. Marcowitz met them and refused their request to conduct a survey because he was seeing patients. He told them to come back at noon the following Monday. The Department employees informed him that they needed more than one date because the surveys were required to be unannounced. Dr. Marcowitz refused to give any additional dates.

On May 2,1980, the Department received a letter of complaint from one of Dr. Marcowitz’ former patients alleging that the abortion she received at the Oak Lawn Surgical Center was carelessly performed, nearly causing her death. The letter stated that the facilities at the Center were dirty, as was the surgeon who performed the procedure. The same two Department employees who had been turned away on April 24 returned to the Center on May 22, 1980. They arrived at 12:20 p.m. and saw no patients in the waiting room. Dr. Marcowitz again refused to allow them to conduct the survey, telling them that he was having office hours at 1 p.m. He told them to return the following Monday. One of the two Department employees, both of whom conduct surveys as a regular part of their duties, testified that a survey includes examining the records and regulations of the surgical facility. She also stated that attempts to observe a surgical procedure and a patient counseling session are made only with the patient’s permission.

Michael S. Grobsmith, the Department’s Chief of Hospitals and Ambulatory Health Programs, wrote a letter to Dr. Marcowitz after the latter’s refusal to permit the April 24 inspection. In the letter, Grobsmith informed Marcowitz that no notice of an impending inspection is required and that the inspectors would visit the Center again in the near future. Grobsmith testified that he defined a reasonable time for inspection as anytime during daylight business hours of the working days of the week. This would include the time that surgical procedures would be performed since inspection of the operating area during a procedure should be a part of a survey.

Dr. Marcowitz testified that he is the sole stockholder of Stewart Marcowitz Medical Service Corporation and has a license to operate an ambulatory surgical treatment center known as the Oak Lawn Surgical Center. On some days the Center is used for Dr. Marcowitz’ general practice. The only surgical use of the facility, however, is the performance of abortion procedures. Dr. Marcowitz has observed all 4,000 of the abortions performed at the Center but does not himself conduct the procedure, which is done by an independent surgeon. Dr. Marcowitz agreed with the testimony of the Department employees concerning the events of April 24 and May 22,1980. He further stated that he feels he should be present during a survey, which he said usually lasts 3 to 4 hours, and that he cannot accommodate an inspection when patients are at the Center.

He believes there would be a danger in allowing a nurse from the Department to observe an abortion procedure.

On November 20, 1980, the hearing officer filed his findings and recommended decision. He found that plaintiffs failed to comply with the ASTC Act by refusing to allow inspections of the Oak Lawn Surgical Center. The officer also found that there was no showing that such inspections would have been unreasonable or oppressive or that other employees of the Center could not have accommodated the Department’s inspections while Dr. Marcowitz was occupied. The hearing officer recommended that plaintiffs’ license be suspended for 30 days. On November 24,1980, the Director of the Department adopted the hearing officer’s findings and recommended decision.

On December 10,1980, plaintiffs filed a complaint for administrative review of the Department’s decision and, on December 12, moved the circuit court to stay the suspension order pending administrative review. The court ordered the stay “on the condition that plaintiff allow reasonable inspections.” On January 28, 1981, the Department inspectors arrrived at the Oak Lawn Surgical Center at approximately 9:30 a.m. Dr. Marcowitz told them he was busy and had surgery at 9:30 a.m. and that they could not inspect the facility until noon. The Department employees left and reported Dr. Marcowitz’ refusal to allow the inspection to their supervisor.

The Department moved the trial court to vacate the stay order based on plaintiffs’ refusal to allow the reasonable inspection as provided for in the stay order. A hearing on this matter was held on February 27,1981, at which time Dr. Marcowitz testified that on January 28 it would have been impossible to allow the inspectors to examine his records because he (Marcowitz) would not be able to observe such an examination. He further testified he would have permitted an inspection of the facility room at noon on January 28, but he might not have permitted an examination of his records. One of the reasons he did not want to produce his records, according to Dr. Marcowitz, was that the Department would not “assume the responsibility for the information which they observed and for the privacy of that information.”

The trial judge stated that he did not believe that an ambulatory surgical treatment center can put any restrictions on the statutory right of the State to inspect such facilities. He also noted that State employees are subject to stringent confidentiality provisions in the Act. On March 23, 1981, after submission of written arguments, the circuit court entered its final order. The court vacated the stay order which it had entered on December 12, 1980, and affirmed the Department’s suspension of plaintiffs’ ASTC license for 30 days. This appeal followed.

Plaintiffs’ first contention on appeal is that the Center cannot be classified as an ambulatory surgical treatment center and, therefore, does not fall within the purview of the ASTC Act. (Ill. Rev. Stat. 1979, ch. 111/2, par. 157 — 8.1 et seq.) Their argument is founded on a recent Illinois Supreme Court decision holding that the ASTC Act could not constitutionally create one class of facilities that perform abortions and another class that does not. (Village of Oak Lawn v. Marcowitz (1981), 86 Ill. 2d 406,427 N.E.2d 36.) The enactment the court reviewed was an Oak Lawn ordinance which adopted the definition of an ambulatory surgical treatment center from a section of the Illinois Act. That act states:

“ ‘Ambulatory surgical treatment center’ means any institution, place or building devoted primarily to the maintenance and operation of facilities for the performance of surgical procedures or any facility in which a medical or surgical procedure is utilized to terminate a pregnancy, irrespective of whether the facility is devoted primarily to this purpose.” (Emphasis added.) Ill. Rev. Stat. 1979, ch. 111M, par. 157 — 8.3(A).

Our supreme court held that the italicized portion of this statute was unconstitutional in that it discriminates against abortion procedures and thus contravenes equal protection and privacy considerations. (Village of Oak Lawn v. Marcowitz (1981), 86 Ill. 2d 406,420.) The court went on to hold that the remainder of the statute is constitutionally permissible and is enforceable. (86 Ill. 2d 406, 421-22.) Plaintiffs argue that the primary activity at the Oak Lawn Surgical Center (emphasis added) is not the rendering of abortions — and therefore not surgical procedures since abortions are the only surgical procedures conducted at the Center — and that the Department failed to introduce any evidence to the contrary. Plaintiffs therefore assert that the Oak Lawn Surgical Center cannot be considered an ambulatory surgical treatment center and, therefore, the Department does not have jurisdiction to invoke the Act against them.

Plaintiffs seem to overlook Dr. Marcowitz’ own testimony that 4,000 abortions have been performed at the Oak Lawn Surgical Center. While this may not conclusively prove that the Center was “devoted primarily to the maintenance and operation of facilities for performance of surgical procedures,” the number of surgical abortions performed at the Oak Lawn Surgical Center presents strong evidence that such is the case. More important, however, is the fundamental inconsistency in plaintiffs’ position. If, as plaintiffs argue, they are not subject to the provisions of the ASTC Act, there would be no reason to appeal the Department’s 30-day suspension of plaintiffs’ ASTC license. If plaintiffs are not subject to the Act, there is no reason to have an ASTC license. We find that plaintiffs are subject to the provisions of the Act.

Plaintiffs’ next contention is that the January 28, 1981, attempted inspection was an unreasonable invasion of privacy under the right to privacy provisions in the Illinois Constitution and the search and seizure provisions in the fourth amendment to the United States Constitution. At the outset we note that the attempted inspection on January 28 is not relevant to this appeal. It was the attempted inspections on April 24 and May 22 that provided the basis for the suspension order.

The fourth amendment protects against unreasonable searches. (Katz v. United States (1967), 389 U.S. 347, 353, 19 L. Ed. 2d 576, 583, 88 S. Ct. 507, 512.) The issue in the case at bar is whether the warrantless inspections sought by the Department on April 24 and May 22 were unreasonable. Reasonableness must be decided on the facts of each particular case. (People v. Kelly (1979), 76 Ill. App. 3d 80, 84, 394 N.E.2d 739.) While the general rule is that warrants are required to conduct a search, exceptions exist. (People v. Kelly (1979), 76 Ill. App. 3d 80, 84.) Plaintiffs have cited a number of cases holding that the warrant requirement is applicable to businesses as well as personal residences. In See v. City of Seattle (1967), 387 U.S. 541,545,18 L. Ed. 2d 943,947, 87 S. Ct. 1737,1740, the Supreme Court held that an administrative entry, without consent, into portions of commercial premises which are not open to the public may only be compelled within the framework of a warrant procedure. In Marshall v. Barlows, Inc. (1978), 436 U.S. 307, 56 L. Ed. 2d 305, 98 S. Ct. 1816, the Supreme Court held that the exception to the search warrant requirement for “pervasively regulated” businesses and for “closely regulated” industries “long subject to close supervision and inspection” does not apply simply because a business is in interstate commerce. (436 U.S. 307,313-14, 56 L. Ed. 2d 305, 311-12, 98 S. Ct. 1816, 1820-21, quoting United States v. Biswell (1972), 406 U.S. 311, 316, 32 L. Ed. 2d 87, 92, 92 S. Ct. 1593,1596, and Colonnade Catering Corp. v. United States (1970), 397 U.S. 72,74,77, 25 L. Ed. 2d 60, 62, 64, 90 S. Ct. 774, 775, 777.) The industries which the court dealt with in Biswell and Colonnade were firearms and liquor. As was stated in Almeida-Sanchez v. United States (1973), 413 U.S. 266, 271, 37 L. Ed. 2d 596, 601, 93 S. Ct. 2535, 2538, “The businessman in a regulated industry in effect consents to the restrictions placed upon him.” In Daley v. Berzanskis (1971), 47 Ill. 2d 395, 269 N.E.2d 716, cert, denied (1971), 402 U.S. 999, 29 L. Ed. 2d 166,91 S. Ct. 2173, the Illinois Supreme Court held that, because of the nature of the liquor business, the exercise of the State’s police power via close scrutiny of the operation of the business through warrantless searches is not unreasonable or arbitrary. 47 Ill. 2d 395, 398.

Plaintiffs argue that the mere fact that an ambulatory surgical treatment center is regulated by the State is insufficient to bring the business within the exception to the search warrant requirement applied to firearms and liquor businesses. Plaintiffs fail to differentiate between simple regulation of an industry (as they would have this court believe is the case in the health care industry) and pervasive and long-standing regulation of an industry. The argument that the regulation of the health care industry in Illinois is somehow less important or less necessary than regulation of the firearms or liquor industries is untenable. That there has been pervasive, long-standing regulation of the health care industry in this State, and that such regulation is a necessary and proper function of the State’s police power to protect the welfare of its citizens, is so obvious as to need no citation of authority.

A review of the record gives us no reason to believe that a completed inspection of the Oak Lawn Surgical Center would have amounted to an unreasonable search or invasion of privacy. By pursuing and receiving an ASTC license, plaintiffs accepted the rules and regulations which attached to the license, including the following:

“Every facility licensed under this Act and any premises proposed to be conducted as a facility by an applicant for a license shall be open at all reasonable times to an inspection authorized in writing by the Director. No notice need be given to any person prior to any inspection.” (Ill. Rev. Stat. 1979, ch. 111/2, par. 157 — 8.9.)

This is not to say that plaintiffs are subject to the unfettered discretion of the Department. The Act is specific in requiring that all inspections be conducted at reasonable times. In the case at bar, the trial court properly found that the Department’s attempted inspections of plaintiffs’ facility were reasonable.

In People v. Firstenberg (1979), 92 Cal. App. 3d 570, 155 Cal. Rptr. 80, cert, denied (1980), 444 U.S. 1012,62 L. Ed. 2d 641,100 S. Ct. 660, the California Court of Appeals considered the propriety of a warrantless and unannounced inspection of a licensed nursing home. That court analyzed many United States Supreme Court cases, including, See, Colonnade, Biswell and Marshall. The California court noted the distinction between See and Marshall, both of which dealt with general regulatory schemes, i.e., laws applicable to all businesses engaged in interstate commerce, and Colonnade and Biswell, both of which involved specific licensed industries. (92 Cal. App. 3d 570, 578-79, 155 Cal. Rptr. 80, 84.) The court concluded that the nursing home legislation fell into the latter category. (92 Cal. App. 3d 570, 579,155 Cal. Rptr. 80, 85.) The court found that the nature of the industry and the potential abuses require frequent and unannounced inspections to protect the physical well-being of patients. The court held that the necessity for unannounced warrantless inspections in the long-term health care industry is just as great as in the firearms industry and, therefore, such inspections are reasonable within the meaning of the fourth amendment. (92 Cal. App. 3d 570,580-81,155 Cal. Rptr. 80, 86.) We agree with the reasoning of the Firstenberg decision and conclude that the attempted inspections of plaintiffs’ surgical facility were reasonable and constitutionally permissible, based on plaintiff’s statutory consent to such inspections and the State’s police power to protect the well-being of its citizens.

Plaintiffs’ final contention on appeal is that the inspections requested by the Department amounted to unreasonable interference with the physician-patient relationship. This contention is without merit. There is a requirement in the Act that each licensee under the Act maintain adequate medical records for each patient. (Ill. Rev. Stat. 1979, ch. 111½, par. 157 — 8.6.) We believe that when there is a requirement that medical records be kept, State inspectors have a right, during a statutorily authorized inspection, to see that the requirement is met. The confidentiality of the information in the records is protected by the restrictions against disclosure found in section 9 of the Act. Ill. Rev. Stat. 1979, ch. llllá, par. 157 — 8.9.

Plaintiffs also assert that the patient’s privacy is invaded by inspections while there are patients at the surgical center. Assuming, arguendo, that plaintiffs have standing to assert the invasion of another party’s privacy, this position overlooks both the necessity of observing the treatment of patients (again, only with the approval of the patient) and the facts of this case. Although plaintiffs claim an inspection would have been proper during the noon hour, when no patients were scheduled, Dr. Marcowitz turned the inspectors away when they arrived at 12:20 p.m. on May 22, 1980.

The judgment of the trial court, affirming the 30-day suspension of plaintiffs’ ambulatory surgical treatment center license is affirmed.

Affirmed.

DOWNING and PERLIN, JJ., concur.


author: JUSTICE DOWNING

text:
    ERIKA SMITH, Indiv. and as Adm’r to Collect of the Estate of James M. Smith, Deceased, Plaintiff, v. F.W.D. CORPORATION et al., Defendants.—(ILLINOIS F.W.D. TRUCK & EQUIPMENT COMPANY, Defendant and Counterplaintiff-Appellant, v. THE CITY OF CHICAGO, Counterdefendant-Appellee.)
    First District (2nd Division)
    No. 81-960
    Opinion filed May 11,1982.
    Rehearing denied June 10,1982.

      William Levinson and Scott E. Jenson, both of Chicago (Levinson, Komie & Murray, P. C., of counsel), for appellant.
    Stanley Gamer, of Chicago (Jeremiah Marsh and William Carlisle Herbert, both of Hopkins & Sutter, of counsel), for appellee.
   JUSTICE DOWNING

delivered the opinion of the court:

Plaintiff Erika Smith, individually and as administrator of the estate of James Smith, deceased, filed a complaint in the circuit court to recover damages based on a theory of strict products liability. The complaint alleged that plaintiff’s decedent, a City of Chicago fire fighter, was killed when he fell from a fire truck. Named as defendants were Seagrave Fire Apparatus, Inc., the manufacturer of the chassis, F.W.D. Corporation, the overall manufacturer of the truck, and Illinois F.W.D. Truck and Equipment Co., the distributor of the truck. Plaintiff alleged that the truck was defective due to the lack of safety belts, shoulder harnesses, and other restraining mechanisms for passengers.

Presently before this court is the appeal of Illinois F.W.D., the distributor, from the dismissal of its counterclaim seeking indemnity from the City of Chicago. The counterclaim alleged that the City advertised for bids for a fire truck, and that Illinois F.W.D. submitted a bid which conformed to “plans, specifications and general conditions” prepared by the City. The counterclaim alleged that if the fire truck was defective as alleged by plaintiff, the cause of the defect was the design of the truck by the City. The circuit court granted the City’s “motion for judgment on the pleadings” (Ill. Rev. Stat. 1979, ch. 110, par. 45(5)) and dismissed the counterclaim against the City.

I

The counterclaim, in attempting to state a cause of action against the City of Chicago in strict products liability, portrays the City as the designer of the fire truck. Resolution of this appeal requires an understanding of the exact role played by the City with regard to the design of the truck. Once this role is fully understood, we can determine whether the trial court properly granted judgment on the pleadings.

A.

The City of Chicago is required to follow certain procedures when awarding purchase orders or contracts. These procedures are described in the “Municipal purchasing act for cities of 500,000 or more population.” (Ill. Rev. Stat. 1979, ch. 24, pars. 8 — 10—1 to 8 — 10—24.) Among other requirements, the City must engage in competitive bidding that is initiated by advertising for bids. The purchasing act states:

“Advertisements for bids shall describe the character of the proposed contract or agreement in sufficient detail to enable the bidders thereon to know what their obligations will be, either in the advertisement itself, or by reference to detailed plans and specifications on file at the time of the publication of the first announcement.” (Emphasis added.) Ill. Rev. Stat. 1979, ch. 24, par. 8-10 — 7.

These procedures were followed by the City in its purchase of the fire truck. The “detailed plans and specifications” required by the act were placed on file by the City, and were appended by Illinois F.W.D. as an exhibit to its reply to the City’s motion for judgment on the pleadings in the circuit court. These plans and specifications were thus before the circuit court when it reached its decision and are contained in the record on appeal. Illinois F.W.D.’s allegation that the City designed the fire truck is based solely on the required preparation of these plans and specifications.

The purposes behind requiring governmental units to engage in competitive bidding are to “[ijnvite competition, to guard against favoritism, improvidence, extravagance, fraud and corruption, and to secure the best work or supplies at the lowest price practicable * * (10 McQuillin, Municipal Corporations sec. 29.29, at 302 (3d ed. 1981).) To achieve these purposes, the plans and specifications should be as detailed as practicable. If they are too detailed, however, the plans and specifications act to limit the number of potential suppliers entering bids. (10 McQuillan, Municipal Corporations sec. 29.53, at 355 (3d ed. 1981).) A proper balance must be struck between detail and generality. The plans and specifications drafted by the City of Chicago achieved this balance.

B.

The detail specifications for the fire truck begin with a statement of intent. “It is the intent of this Specification to establish the functional requirements of a self-contained 1,000 GPM pumper mounted on a 4 x 2 Cab over Engine Motor Truck Chassis based on commercially available production pumpers of the latest design.”

Under the heading of “Guarantee,” the specifications provide:

“1. The contractor hereby guarantees that for a period of one (1) year from the date of final acceptance, he will, at his own expense and without cost to the City, * ” ” make all repairs that may be required or are made necessary by reason of defective design # # «
2. Defects in design * * ° as guaranteed herein shall be corrected in all units furnished.”

The specifications further provide, under the heading of “Design and Construction Practices”:

“The complete apparatus, assemblies, sub-assemblies, component parts, etc., shall be designed with a factor of safety that is equal or greater than that which is considered standard and acceptable for this class of equipment in Firefighting Service.
Standards are those established by Federal specifications, National Bureau of Standards, the Society of Automotive Engineers, I.A.F.C. and the National Fire Protective Association * °

The specifications conclude with general requirements for the various parts of the truck. The description of the cab does not contain any discussion of safety belts, shoulder harnesses, or other restraining mechanisms.

C.

The circuit court granted the City’s “motion for judgment on the pleadings.” A motion for judgment on the pleadings, like a motion for summary judgment, submits to the court a question of law as to whether or not there is an issue of fact to be tried. Pollack v. Marathon Oil Co. (1976), 34 Ill. App. 3d 861, 867, 341 N.E.2d 101.

Although the proceedings below were on a motion for judgment on the pleadings, both parties proceeded as if a motion for summary judgment was pending. Illinois F.W.D., in response to the City’s motion for judgment on the pleadings, filed a reply that had appended to it three exhibits. Included among these exhibits were the plans and specifications discussed above and excerpts from a deposition transcript. The City, in turn, filed a document captioned “Response,” to which was also appended an exhibit. Since a motion for judgment on the pleadings is decided solely on the pleadings, and a motion for summary judgment is decided with reference to pleadings, depositions, affidavits, and admissions on file, both parties clearly treated the pending motion as one for summary judgment. The trial court, in light of the actions of the parties, apparently also treated the motion as one for summary judgment. While we do not condone the confusing of two entirely distinct motions, we will also treat the motion as one for summary judgment for the reason of judicial economy.

Treating the motion as one for summary judgment, we hold that the trial court correctly granted the motion. We do not believe that the action by the City in compiling plans and specifications as required by statute amounted to “designing” the truck. The language of the specifications indicates that the party awarded the contract was to design the truck. Since the City did not design the truck or occupy any other role in the chain of distribution other than ultimate consumer, it is not liable in strict products liability for a design defect. We find it unnecessary to resolve the issue briefed by the parties of whether a product designer may be held strictly liable in tort for a design defect. Compare Harms v. Caterpillar Tractor Co. (1980), 80 Ill. App. 3d 262, 399 N.E.2d 722, with Evans v. Control Products Corp. (1979), 73 Ill. App. 3d 681,392 N.E.2d 239.

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

Affirmed.

STAMOS, P. J., and HARTMAN, J., concur.