author: PRESIDING JUSTICE WILSON

text:
    RICHARD O’HARA et al., Plaintiffs-Appellees, v. CHICAGO TITLE AND TRUST COMPANY, Trustee, et al., Defendants-Appellants.
    First District (5th Division)
    No. 81—2575
    Opinion filed April 22, 1983.
    Rehearing denied July 19, 1983.

      James West and Rock, Fusco, Reynolds & Heneghan, both of Chicago (William Paul Jones, of counsel), for appellants.
    Cyril J. Watson, of Mitchell, Russell and Kelly, of Chicago (Edward J. Egan, of counsel), for appellees.
   PRESIDING JUSTICE WILSON

delivered the opinion of the court:

Plaintiffs, Richard O’Hara and Exchange National Bank (as trustee), beneficial and legal owners, respectively, of real estate commonly known as 1560 North Wells Street, Chicago, Illinois (Parcel A), filed a complaint against defendants, Daniel O’Brien and Chicago Title and Trust Company (as trustee), beneficial and legal owners, respectively, of real estate commonly known as 1556 North Wells Street, Chicago, Illinois (Parcel B), seeking injunctive and declaratory relief. Specifically, plaintiffs sought to enjoin defendants from maintaining a fence along the northern boundary of Parcel B that abuts Parcel A on the ground that the fence effectively bars plaintiffs from using the right-of-way located along the northern boundary of Parcel B. Furthermore, plaintiffs sought a declaratory judgment stating that the right-of-way located on Parcel B was either: (1) an implied easement appurtenant attaching to and for the use and benefit of Parcel A; or (2) an easement by prescription attaching to and for the use and benefit of Parcel A. Following a bench trial, the court entered judgment granting plaintiffs an easement by implication and permanently enjoining defendants from erecting a fence or any other obstruction along the northern boundary of Parcel B which would interfere with plaintiffs’ use of the easement. Defendants’ sole issue on appeal is whether plaintiffs have met their burden of proof in establishing the essential prerequisites of an implied easement. For the reasons that follow, we reverse the trial court.

A. History of Ownership of Parcel A

In 1946, Frank Herhold owned the property and improvements on both Parcel A and Parcel B in fee simple. The improvements on Parcel A included a four-story brick building, which occupied the full width of the parcel and allowed approximately 47 feet for a rear yard. At that time, the Parcel A building had four doors, two in the front (east), facing Wells Street, and two in the rear (west), facing the rear yard. The buildings on Parcel A and Parcel B were joined by a party wall.

On May 28, 1946, Herhold conveyed Parcel A to George Adams in fee simple. There is no indication in the record as to how Adams used the property. In 1959/1960, Adams constructed a three-story addition to the rear of the Parcel A building which extended across the full width of the parcel, and allowed some footage for a rear yard. When the addition was completed, the building had three doors, one in the front (east), facing Wells Street, one in the rear (west), facing the rear yard, and one on the side of the new addition (south), opening directly onto Parcel B.

In 1963, William Malliek executed a contract to purchase Parcel A from Adams. Malliek, however, never actually purchased Parcel A. Instead, he immediately assigned the contract to A1 Kaiser in trust. The Kaiser trust, in which Mallick had no ownership interest, then purchased Parcel A and executed a 20-year lease for the building thereon to Mallick.

When Mallick leased the building on Parcel A, there was no business operating on the premises. In late 1963/early 1964, Mallick began remodeling the Parcel A building in conformance to code for a restaurant and lounge. In so doing, he added a one-story kitchen directly behind the three-story addition. With the completed kitchen addition, the Parcel A building occupied the full width and depth of the property, and had three doors, one in the front (east), facing Wells Street, and two on the south side (three-story addition and kitchen), opening directly onto Parcel B. In 1971, Mallick ceased his restaurant operation. The record is void as to how either parcel was used from 1971 until 1973 when Cafe-Continental, Inc., leased Parcel A from the Kaiser trust and operated a restaurant thereon called “Sesame” until August 1980.

B. History of Ownership of Par eel B

In 1946, when Herhold owned the property and improvements on both Parcel A and Parcel B in fee simple, Parcel B contained a three-story brick building with a rear yard and O^-foot walkway which ran along the south side of the building.

In 1948, Herhold conveyed Parcel B to Walter Shellock. Although the record does not fully trace the ownership of Parcel B from 1948 to 1959, it does indicate that it was purchase by John Krenger in 1959/1960. At the time Krenger purchased Parcel B, Adams was constructing the three-story addition on the Parcel A building. At trial, Krenger testified that after Adams added the south door onto his addition, Adams began to exit from that door, walk across the rear yard of Parcel B and down the walkway which led to Wells Street. Krenger objected to Adams’ use of his property as a right-of-way and subsequently erected a gate across the walkway which he kept padlocked. Krenger retained the only key to the lock.

In 1964/1965, shortly after Mallick (lessee of Parcel A) had completed the kitchen addition on the Parcel A building, Krenger executed a 10-year lease with Mallick for Parcel B, the terms of which gave Mallick the option to demolish the building on Parcel B. In his evidence deposition, Mallick indicated that prior to leasing Parcel B from Krenger, there was a gate across the walkway located along the south side of the Parcel B building. During the day, Krenger permitted Mallick to use the walkway gratis to bring in building supplies for use on Parcel A. At night, however, Krenger locked the gate for security reasons. After Mallick demolished the Parcel B building in 1966, he used the parcel as a parking lot for his restaurant, as well as for deliveries and garbage removal. In 1973, two years after Mallick prematurely terminated his leases in both parcels, owners of the Sesame restaurant (subsequent sublessees of Parcel A) arranged with Krenger to pay a monthly fee for the use of Parcel B as a parking lot for their restaurant and for deliveries and garbage removal.

C. Current Ownership of Parcel A and Parcel B

In October/November, 1977, O’Hara purchased Parcel A in fee simple from the Kaiser trust, subject to Cafe-Continental, Inc.’s lease, and deeded the property to a land trust. When Cafe-Continental, Inc.’s lease terminated for nonpayment of rent in August 1980, plaintiffs began remodeling the restaurant and opened an Italian restaurant in December 1980. When O’Hara purchased Parcel A, the building thereon had three doors: one on the front (east), facing Wells Street and two on the south wall of the building, opening directly onto Parcel B. Lum’s restaurant was located immediately to the north and Azteca restaurant was located directly to the west. After their restaurant opened, plaintiffs continued to use Parcel B as a right-of-way for deliveries and for removal of trash.

In 1978, Daniel O’Brien purchased Parcel B from John Krenger in fee simple and deeded the property to a land trust with Mary and Daniel O’Brien as beneficiaries. At the time he purchased Parcel B, O’Brien had knowledge of Sesame’s operations on Parcel A. In fact, O’Brien collected a fee from the owners of that restaurant for the use of Parcel B. About six months after his purchase of Parcel B, in mid-1979, O’Brien began making the necessary repairs and improvements to the property for use as a parking lot. These repairs included mending existing and erecting new six-foot chain link fencing around the perimeter of the parking lot, resurfacing damaged pavement and replacing damaged lighting and signs.

At trial, O’Hara testified that, commencing in 1978, he had several communications with either Daniel O’Brien, his attorney, James West, or his agent, Mr. Sergetelli, regarding use of the side doors on the Parcel A building. The first conversation occurred with Sergetelli in September 1978, shortly after O’Brien purchased Parcel B. Sergetelli told O’Hara that O’Brien was interested in purchasing Parcel A. O’Hara told him it was not for sale. Sergetelli continued to contact O’Hara every four to five weeks thereafter, asking him if he had reconsidered. O’Hara stated that over this period of time, the tone of his conversations with Sergetelli changed and there were innuendos that O’Brien was politically aligned, that it would cost a good deal to get a restaurant license for such an old building, and that O’Hara would be facing numerous building violations. Thereafter, West sent a letter to O’Hara, dated May 3, 1979, notifying O’Hara that as of that date, the occupants or tenants of Parcel A would not be allowed to use Parcel B for any reason. The letter further informed O’Hara that a fence was going to be erected in the near future which would prevent his use of Parcel B. In late 1979, O’Hara called O’Brien directly because he was having problems with building violations and inspectors. In the course of that conversation, O’Hara again told O’Brien that he would not sell, to which O’Brien allegedly replied, “Do you realize you’re landlocked?”

O’Hara further testified that during the time that he was remodeling his restaurant, he would occasionally park his car in O’Brien’s unattended parking lot. Within one month, O’Brien approached O’Hara in the parking lot and asked him if he wanted to rent the space for his car. O’Hara declined, but said that he might reconsider later.

On December 7, 1980, O’Hara opened his restaurant and commenced using the easternmost side door as a service entrance and emergency exit. Prior to this, despite O’Brien’s warnings, he had used the side doors for deliveries and garbage removal. On opening day, O’Hara talked to O’Brien about use of the doors and offered him $450 a month for use of the parking lot for customer parking. This was allegedly the amount Sesame paid to O’Brien previously. In response, O’Brien stated that he wanted $650 per month for 200 cars and an additional $3 per car over that. O’Hara projected that he would have about 50 cars per day and, thus, could not afford O’Brien’s price. When O’Hara presented a counteroffer, O’Brien indicated that he would think about it. Shortly thereafter, O’Hara received another written notice from O’Brien stating that a wall or fence was to be built along the north boundary of Parcel B which would block the use of the side doors on O’Hara’s restaurant.

Subsequently, on January 1, 1981, approximately 3 a.m., O’Brien knocked on the side door of O’Hara’s restaurant and angrily told O’Hara to remove his garbage cans from the parking lot, which O’Hara promptly did. O’Hara stated that he paid O’Brien for use of the parking lot for customer parking in January and February, 1981. The record, however, does not indicate what the arrangements were made for those months.

Approximately one month later, O’Brien completed the erection of fencing around the perimeter of his parking lot. Upon completion, fencing existed along the south, west and north boundaries of Parcel B. On the north boundary, the fencing stopped a few feet east of the easternmost side door of the restaurant rather than extend all the way to the sidewalk because the restaurant’s wall extends out approximately 12 to 18 inches at that point and meets flush with the fence. O’Hara testified that prior to the erection of the fence along Parcel A’s building, the easternmost side door was used for deliveries, removing garbage and trash, as well as an emergency exit. The other side door located on the kitchen addition was used about once a week as an auxiliary means of ingress and egress and was bolted from the inside. Currently, the kitchen door, which is set back from the building’s outer wall approximately eight feet to form a passageway, is blocked by various' construction debris which is stored in the passageway itself. Erection of the fence blocking Parcel A’s side doors has curtailed deliveries to the kitchen, garbage removal and has closed off all emergency exits. Currently, there is only one accessible door on the east side of the building, facing Wells Street. While it is physically possible for someone to turn sideways and squeeze himself into the 12-inch width between the fence and Parcel A’s building, he would be trapped to the east by the building’s 12-inch extension which meets the fence, and, thus, would have to exit west to Weiland Avenue. In Mallick’s evidence deposition, he stated that use of the alleged right-of-way over Parcel B is “totally necessary and highly beneficial” to the restaurant.

Daniel O’Brien testified that he actively pursued a parking fee arrangement with O’Hara, but was unable to reach an agreement. Initially, O’Hara’s partner informed O’Brien that they would be willing to pay $500 per month for parking privileges. As a result, O’Brien asked O’Hara for $500 per month with limited parking privileges of 30 cars per day. However, O’Hara refused those terms. O’Brien admitted that either he or his agents had had numerous conversations with O’Hara regarding O’Brien’s desire to purchase Parcel A, but stated that he no longer wanted to do so because he is contemplating construction of a high-rise on Parcels B and C which he currently owns. Parcels B and C extend east and west from Wells Street to Weiland Avenue and Parcel A would not “square out” with this property because it does not extend as far west as Weiland Avenue. O’Brien stated that there were no formal plans or financing arrangements for construction of the high-rise at this time.

When questioned about the gate placed directly in front of the restaurant’s easternmost side door, O’Brien stated that the gate was so situated because O’Brien’s son, Peter, had been negotiating with O’Hara regarding the use of the Parcel B parking lot for O’Hara’s customer parking. Currently, the gate has a chain and padlock on it for which the parking lot attendant has the key. Further, O’Brien admitted that he was aware of the Chicago ordinance that requires more than one exit for any business, but stated that he never consciously thought about this when he erected the fence next to Parcel A. Rather, he merely wanted to secure his property against vandalism and to protect O’Hara’s building from being damaged by cars in the parking lot. O'Brien also testified that, if the debris were removed from the westernmost side door of the restaurant, there would be enough space to walk through the 12- to 18-inch passageway between the fence and the restaurant.

After Daniel O’Brien’s testimony, plaintiffs rested their case, at which point defendants moved for judgment directed in their favor. In support of their motion, defendants asserted that no showing had been made that an easement exists on Parcel B for the benefit of Parcel A. In reply, plaintiffs asserted that the complaint sought relief on two theories: (1) easement by implication, and (2) easement by prescription. In that regard, there is no question there was unity of ownership and separation of title. Defendants countered that because there was no evidence as to what was going on in the Parcel A building prior to 1963, the prerequisite of continuous use had not been established for imposition of an easement by prescription. The court stated that the motion would be taken under advisement.

Subsequently, Peter O’Brien, Daniel O’Brien’s son and vice-president of O’Brien Management, managers of Parcel B, testified that the fence was erected around the parking lot so as to prevent perpetrators of crimes on Wells Street from using it as an escape route and also to protect the cars of the parking lot patrons. Previously, a car had been stolen from the lot. O’Brien further stated that he had his first conversation with O’Hara regarding his leasing of the parking lot for a one-year term in December 1980. O’Brien offered use of the parking lot for garbage removal and limited daily parking for $550 per month. O’Hara made a counteroffer of $400-$450 per month. No agreement was reached. O’Brien’s next conversation with O’Hara occurred in January 1981, when he offered use of the lot for garbage removal and unlimited parking for $550 per month. This time, O’Hara made a counteroffer of $500 per month. Again, no agreement was reached. O’Brien indicated that the lot is used by the public at large and is also rented by four merchants as a parking facility for their customers. O’Brien admitted that prior to the time O’Hara opened his business in 1980, he knew O’Hara was using the side door for deliveries.

At the conclusion of closing arguments, the court stated that it would take the matter under advisement. In the interim, prior orders stating that the gate across the restaurant’s side door was to remain open and that the side door was to be used as an emergency exit only were to remain in full force and effect.

Final judgment was entered on June 3, 1981, holding that plaintiffs’ right-of-way over Parcel B was an implied easement and ordering removal of the fence erected between Parcels A and B. Thereafter, upon receiving the legal description of the easement provided for in its first order, the court entered a derivative order granting an easement appurtenant over, upon and across the therein-described portion of Parcel B for the benefit of Parcel A. Defendants then filed post-trial motions requesting the court to vacate its June 3, 1981, judgment and derivative orders, or, in the alternative, requesting a new trial. The court denied the post-trial motions. Defendants’ timely appeal followed.

Opinion

The doctrine of implied easements is based upon the principle that where the owner of a single tract has arranged it so that one portion thereof derives a benefit from the other of an apparent and continuous character, and then sells one of such parts without mention being made of these incidental uses, the purchaser takes the portion sold with all the benefits and burdens which appear at the time of sale to belong to it. (Swieton v. Landoch (1982), 106 Ill. App. 3d 292, 298, 435 N.E.2d 1153.) As set forth in the seminal case of Carter v. Michel (1949), 403 Ill. 610, 617, 87 N.E.2d 759, 762, the essential elements which must exist to create an easement by implication are: (1) unity of ownership and separation of title; (2) before the separation occurs, the use which would give rise to an easement must have been so long-continued, obvious or manifest that it would show the use was meant to be permanent; and (3) the use of the claimed easement must be essential to the beneficial enjoyment of the land granted or retained. Further, whether an easement by implication was created must be determined as of the time it was severed from the other land of the grantor. (Walker v. Witt (1954), 4 Ill. 2d 16, 20, 122 N.E.2d 175.) The burden of proof rests on the party seeking the easement to establish the elements necessary to raise an easement by implication. (Rexroat v. Thorell (1982), 89 Ill. 2d 221, 229, 433 N.E.2d 235.) On review, a court will not disturb the findings of a trial court as to proof of the elements unless they are against the manifest weight of the evidence. Rinderer v. Keeven (1980), 90 Ill. App. 3d 34, 48, 412 N.E.2d 1015.

We first address the prerequisite of unity of ownership and severance of title. O’Brien asserts that the sole severance of title occurred in 1946 when Frank Herhold conveyed Parcel A to George Adams in fee simple. O’Hara, on the other hand, argues that severance of title occurred in 1946 and again in 1977 when William Mallick conveyed his interest in Parcel A. It is our opinion that severance of title occurred only in 1946, and, thus, that date becomes the operative point at which servitudes on the land must have existed. We base this determination on the undisputed fact that William Mallick never had title to either Parcel A or Parcel B. Regarding Parcel A, Mallick signed a contract to purchase which he immediately assigned to A1 Kaiser in trust. Mallick had no interest in the trust and the deed was never conveyed to Mallick from Adams. Mallick merely acquired a leasehold interest in parcel A from the Kaiser trust. Regarding Parcel B, Mallick again acquired only a leasehold interest from John Krenger. Although the terms of the lease gave Mallick control over the use of Parcel B, it was, nevertheless, only a leasehold interest and not an ownership interest. Therefore, the facts unequivocally demonstrate that the relevant severance of title occurred in 1946.

We next address the prerequisite that the use giving rise to the easement must have existed prior to severance. (Cosmopolitan National Bank v. Chicago Title & Trust Co. (1955), 7 Ill. 2d 471, 475, 131 N.E.2d 4.) In our case, the use must have existed prior to Herhold’s severance of title in 1946. At that time, Parcel A contained an unimproved four-story building with four doors, two in the front (east), facing Wells Street and two in the rear (west), facing the rear yard. The record is void of explanation as to the use, if any, of the land immediately north and west of Parcel A prior to severance or at the time of severance. Plaintiffs argue that Parcel B was used from the rear doors of Parcel A prior to severance in 1946. However, they failed to establish any proof of this use either by testimony or documentary evidence. Plaintiffs also argue that pursuant to Miller v. Schmitz (1980), 80 Ill. App. 3d 911, 400 N.E.2d 488, proof of prior use by the common grantor is not necessary when land in its present form could either not be used without an easement, or use without an easement would necessitate disproportionate effort and expense. In Miller, as in our case, there was no direct evidence regarding the common grantor’s access to Miller’s tract. The Miller court concluded, however, that access across defendant’s property must have been in use because the only other approach would have been across a creek. Thus, the court imposed an easement by implication across defendant’s property. We find the situation at bar to be factually distinguishable from that in Miller. As previously stated, there is no evidence in the record that the only access to Parcel A in 1946 was over Parcel B. To the contrary, the record indicates that the Parcel A building had two front doors which opened onto Wells Street. By virtue of that fact alone, it was not landlocked in 1946 and Miller is inapplicable. Plaintiffs next argue that, pursuant to Chicago’s building code, it cannot operate its restaurant on Parcel A without a minimum of two exits. If the use of the restaurant’s side doors is blocked by the fence, the building is left with only one exit to Wells Street and, thus, will have to close its operation because there is no reasonable place for another exit to be added.

While we sympathize with plaintiffs’ plight, we do not find it persuasive of the position that an easement has been created. First, it is well established that where such alternative means of access exist and do not create an unreasonable burden, courts must exercise due continence in implying and imposing a burden over the lands of another through imposition of an easement by implication. (Rinderer v. Keeven (1980), 90 Ill. App. 3d 34, 48, 412 N.E.2d 1015.) In the case at bar, plaintiffs have two alternatives: (1) construct a second door on the east side of the building for deliveries, garbage pickup and emergency exit; (2) contract with defendants for the use of Parcel B. The record indicates that defendants have been willing to execute such a contract for some time and, in fact, have been actively negotiating with plaintiffs in good faith to do so. It is unrealistic for plaintiffs to presume that they can have use of defendants’ property gratis when they purchased Parcel A with the knowledge that Sesame restaurant paid a monthly fee for the use of Parcel B. Furthermore, we find the offered price to be not so unreasonable that an agreement could not be reached between the parties. In fact, testimony indicates that at one point the parties were within $50 of establishing a monthly fee with unlimited parking privileges.

Second, the facts indicate that plaintiffs, in effect, created their own necessity which they now rely upon as grounds for imposition of an easement. As early as May 3, 1979, while the Sesame restaurant was still in operation, plaintiffs were notified by letter that use of Parcel B for parking, delivery, garbage pickup and storage would have to cease, and that a fence prohibiting such use was to be erected in the near future. Yet, plaintiffs commenced renovation of the restaurant on Parcel A anyway. When it became apparent to defendants that plaintiffs were going to continue use of Parcel B and refuse to compensate defendants for that use, they erected the fence. It is our opinion that plaintiffs renovated the restaurant on Parcel A at their own risk and defendants should not be deprived of full use and enjoyment of their property because of plaintiffs’ irresponsible actions. Further, the fact that defendants placed a gate in front of plaintiffs’ side door suggests nothing more than an attempt to keep the options open regarding plaintiffs’ use of Parcel B.

Based on the aforementioned, we conclude that plaintiffs have failed to prove the second essential element for finding an easement by implication. Accordingly, because all three elements must be established in order to create such an easement (Walker v. Witt (1954), 4 Ill. 2d 16, 21, 122 N.E.2d 175), we deem it unnecessary to address the third element that the use be essential to the beneficial enjoyment of the land.

As an alternative argument, plaintiffs claim that they have an irrevocable license to use the right-of-way over Parcel B. A license, as it relates to real property, is permission to do an act or a series of acts upon the land of another without possessing any estate or interest in such land. (Mueller v. Keller (1960), 18 Ill. 2d 334, 340, 164 N.E.2d 28.) Mere permission to use land cannot ripen into a prescriptive right, regardless of the time such permissive use is enjoyed. (Keck v. Scharf (1980), 80 Ill. App. 3d 832, 835, 400 N.E.2d 503.) Further, unless the evidence is clearly to the contrary, a court will presume that a parol agreement to impress property with a servitude was made without knowledge of the provisions of the statute of frauds, and was therefore intended as a license only and not as an easement or other interest in land. (Petersen v. Corrubia (1961), 21 Ill. 2d 525, 532, 173 N.E.2d 499.) In addition, it is in the nature and definition of a license that, in the absence of fraud, it is revocable at the will of the licensor. A parol license may be revoked by express notice, by acts which are entirely inconsistent with enjoyment of the use, or by appropriating the land in question to any use contrary to its enjoyment by the licensee. In fact, a parol license is subject to revocation even where consideration has been paid or expenditures have been made in reliance on such an agreement. Keck v. Scharf (1980), 80 Ill. App. 3d 832, 836, 400 N.E.2d 503.

In the case at bar, if a license existed at all, it was a parol license revocable at will. The facts indicate such a revocation occurred on May 3, 1979, by express notice in the form of a letter written to plaintiffs by the attorney for defendants. In addition, erection of the fence barring use of the restaurant’s side doors was a further act of revocation as it certainly could be construed as nothing less than an act entirely inconsistent with plaintiffs’ use of Parcel B.

Plaintiffs’ assertion that defendants’ act of revocation constituted a fraud and is, therefore, void is untenable. This court has specifically limited this doctrine of estoppel to those cases where large sums of money have been expended under the license, partly for the benefit of the licensor, and where the position of the licensee had been so changed at the request of the licensor that he could not be restored to his original position or be compensated in damages. (Ideal Trading Corp. v. 237 E. Ontario Corp. (1967), 82 Ill. App. 2d 160, 168, 227 N.E.2d 150.) In the pending case, defendants, as licensors, received no benefit from plaintiffs’ expenditures to remodel the restaurant on Parcel A. If anything, such expenditures resulted in a detriment to defendants. More importantly, plaintiffs’ property was not changed at the request of defendants. Thus, any expenditures made by plaintiffs were made at their own risk. Accordingly, we find that if any license existed between plaintiffs and defendants regarding the use of Parcel B, it was effectively revoked and no such privilege currently exists.

For the reasons stated, we hold that the evidence failed to support the trial court’s finding of an easement by implication in favor of plaintiffs and therefore reverse the judgment of the circuit court of Cook County.

Reversed.

LORENZ and MEJDA, JJ., concur.

       Although the trial court did not specifically rule on count II of the complaint regarding an easement by prescription, we note that to establish such a right of way, use must be adverse, uninterrupted, exclusive, continuous, and under claim of right for a period of 20 years. (Rita Sales Corp. v. Bartlett (1970), 129 Ill. App. 2d 45, 52, 263 N.E.2d 356.) After careful review of the record, we find that plaintiffs have failed to establish such use for the specified duration.


source: Caselaw Access Project

author: JUSTICE WHITE

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ARVEL ROWE, Defendant-Appellant.
    First District (3rd Division)
    Nos. 81—1547, 81—2748 cons.
    Opinion filed May 25, 1983.

      James J. Doherty, Public Defender, of Chicago (Timothy Kevin McMorrow, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, David A. Shapiro, and Lawrence R. Stasica, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE WHITE

delivered the opinion of the court:

After a jury trial defendant, Arvel Rowe, was convicted of murder and armed robbery and was sentenced to concurrent extended terms of imprisonment of 60 years for murder and 40 years for armed robbery. He appeals from these convictions and sentences.

This case arises out of the fatal shooting of Mazmi Rouhman. The testimony presented at trial was as follows.

Mario Tassin, who was nine years old at the time of the incident, testified that on January 2, 1980, at approximately 3:30 in the afternoon, she was in a grocery store owned by Mazmi Rouhman when Ferrel Cunningham entered with a gun. A few minutes later defendant entered the store and grabbed Hussein Zeidieh, a clerk in the store, and Cunningham said, “Everybody move back.” Both men took money from the cash register and then Cunningham shot and killed Rouhman. Defendant and Cunningham then left the store and got into a yellow car. Mario testified that she kept her hands over her eyes during the robbery but that she saw defendant’s face once for about five seconds when she peeked through her fingers. Mario also testified to having identified defendant in a lineup on January 4, 1980.

Hussein Zeidieh testified similarly except: (1) he said that Ferrel Cunningham entered the store after defendant; and (2) he identified Cunningham as the man with the gun but did not identify the other perpetrator.

Chicago police officer William Graham testified that he arrested defendant on January 3, 1980. Defendant was a passenger in a yellow car driven by Cunningham.

Deputy Sheriff Mary Ellen Smith testified that on April 15, 1981, she was present in a courtroom during a pretrial hearing when Hussein Zeidieh was testifying. Defendant and Ferrel Cunningham were sitting together at the defense counsel’s table. During a sidebar conference, she heard defendant say to Cunningham, “We should have killed him too.”

Assistant State’s Attorney Linda Woloshin testified that she interviewed defendant on January 4, 1980, and that defendant made three statements regarding his activities on January 3, 1980. In the first statement he told her that he let a friend, Crazy Mike, borrow the license plates to his car. Crazy Mike was driving the yellow car in which defendant was arrested. Defendant said that Crazy Mike drove him to Cunningham’s mother’s house and then to Cunningham’s fiancee’s house where defendant took a nap until 4 p.m. In the second statement, defendant said that he left Cunningham’s mother’s house with Cunningham and Eric Flowers at 3 p.m. Cunningham removed a shotgun from the house and said that he and Flowers were going out to make some money. Defendant was dropped off at Cunningham’s fiancee’s house. Flowers and Cunningham returned after 4 p.m. and told defendant that Rouhman had been shot. Ms. Woloshin further testified that in defendant’s third statement he said that he, Flowers, and Cunningham all drove to the .scene of the crime and parked the car. Cunningham took a gun from the trunk and walked into the store. Defendant and Flowers remained in the car. Shortly thereafter, defendant said he heard a shot. Cunningham ran out of the store, threw his shotgun into the car and told them to drive away.

For the defense, Gerviece Collier, who was 15 at the time of trial, testified that she was in Rouhman’s store with Mario at the time of the robbery and shooting. She said that she saw the two offenders but that neither Arvel Rowe nor Ferrel Cunningham were the offenders. On cross-examination, however, she testified that she had told Detective Banahan that she could not identify anyone who was in the store on the day of the crime. She also testified that she had known Ferrel Cunningham for approximately two years.

Defendant first contends that he was not proved guilty beyond a reasonable doubt. He argues that Mario Tassin’s testimony was so weak and riddled with contradictions as to render it unreliable, and that defendant’s purported admissions were ambiguous.

The testimony of a single witness is sufficient to convict where the witness is credible and had an opportunity to view the offender under circumstances which would permit a positive identification to be made even where that testimony is contradicted by evidence presented by the accused. (People v. Yarbrough (1977), 67 Ill. 2d 222, 226, 367 N.E.2d 666.) This court has held that five to 10 seconds is sufficient time to allow a positive identification and support a conviction. (People v. Brown (1977), 50 Ill. App. 3d 348, 353, 365 N.E.2d 907; People v. Porter (1975), 29 Ill. App. 3d 456, 460, 330 N.E.2d 599.) It is the province of the jury to weigh the evidence presented, judge the credibility of the witnesses, and determine facts; a court of review will not set aside a jury’s verdict of guilty unless the evidence is so unreasonable, improbable or unsatisfactory as to raise a reasonable doubt as to defendant’s guilt. People v. Sumner (1969), 43 Ill. 2d 228, 232, 252 N.E.2d 534.

In the instant case, the evidence was not so unsatisfactory as to raise a reasonable doubt as to defendant’s guilt. Defendant was identified in a lineup and again in court by an eyewitness, Mario Tassin. The testimony of Deputy Smith was additional evidence tending to show defendant’s guilt. Furthermore, the jury was not required to believe the testimony of Gerviece Collier. Accordingly, we find that defendant was properly found guilty of murder and armed robbery.

Defendant next contends that his arrest was not based upon probable cause and that his statements which were the product of his alleged unlawful arrest, were improperly admitted into evidence. Defendant argues that his arrest was based solely on information of an informant who was not demonstrated to be reliable. We disagree.

The determination of whether probable cause for an arrest exists in a specific case depends upon the totality of the facts and circumstances known to the officers when an arrest is made. (People v. Creach (1980), 79 Ill. 2d 96, 102, 402 N.E.2d 228, cert. denied (1980), 449 U.S. 1010, 66 L. Ed. 2d 467, 101 S. Ct. 564; People v. Robinson (1976), 62 Ill. 2d 273, 276-77, 342 N.E.2d 356.) Probable cause exists if a reasonable and prudent person in possession of the knowledge which has come to the arresting officer would believe that the person to be arrested had committed a crime (People v. Vogel (1978), 58 Ill. App. 3d 910, 913, 374 N.E.2d 1152), and the trial court’s finding will not be disturbed unless manifestly erroneous. People v. Clay (1973), 55 Ill. 2d 501, 505, 304 N.E.2d 280.

On April 13, 1981, defendant’s motion to quash arrest and suppress evidence was denied. In considering a ruling upon a motion to suppress, a reviewing court may consider evidence admitted during the trial after the conclusion of the suppression hearing. (People v. Sakalas (1980), 85 Ill. App. 3d 59, 65, 405 N.E.2d 1121.) Here the evidence of probable cause admitted during the hearing and at trial showed the following. Chicago police officer William Graham testified that on the night he arrested defendant, his attention was drawn to a yellow vehicle with license plate number GV 9481. Graham had information from a police report that a yellow car with that license number was involved in strong-arm robberies and purse snatching. Furthermore, Graham had information from a police bulletin that a yellow vehicle was wanted in a homicide which had occurred just a few blocks away. Graham was also told by an individual by the name of “Ray-Ray” that defendant was in possession of a stolen vehicle, a yellow car, and that defendant had his license plates on it. Graham testified that once he saw the car he entered the license plate number in his mobile computer, located in his squad car, and learned that the plate was registered to defendant for a 1970 Chrysler. However, the yellow car in question was a 1980 Buick. After Graham stopped the car he checked the vehicle identification number and found that the car was stolen. Defendant told the officer that his name was Tony White. Defendant and Cunningham, who was also in the car, fit the description of the persons wanted in the robbery-purse snatching case report.

To establish probable cause for the defendant’s arrest under the circumstances of this case it was not necessary that it be established that Ray-Ray was a reliable informant. Where there exists independent information sufficient to establish probable cause to arrest, an informant’s reliability need not be shown to support a finding of probable cause. (See People v. Clay (1973), 55 Ill. 2d 501, 505.) Here, Officer Graham did not make the arrest solely on the basis of information obtained from Ray-Ray. Rather, Graham knew from a police report that a yellow car with the license plate of the car in question was involved in a pattern of robberies. Such information was sufficient to warrant the initial stop of the automobile. (People v. Scarpelli (1980), 82 Ill. App. 3d 689, 694, 402 N.E.2d 915, cert. denied (1981), 450 U.S. 915, 67 L. Ed. 2d 340, 101 S. Ct. 1357; and see People v. Meitz (1981), 95 Ill. App. 3d 1033, 420 N.E.2d 1119.) Once the vehicle was stopped, Officer Graham learned that (1) the car was stolen, and (2) defendant fit the description of the person wanted in a robbery. Such information was clearly sufficient to establish probable cause to arrest. In light of the above, we find that the trial court’s finding of probable cause to arrest was not manifestly erroneous.

Defendant next argues that evidence that defendant had stolen the car in which he was arrested was improperly presented to the jury and, therefore, a new trial is required. At trial, Assistant State’s Attorney Linda Woloshin testified that defendant made three statements to her. Concerning the second statement Woloshin testified that defendant had told her that he had stolen the car in which he was arrested. Counsel for defendant objected to the testimony; the objection was sustained, and the jury was instructed to disregard the question and response.

Evidence of other crimes committed by a defendant is inadmissible to show that the defendant has a propensity to engage in criminal activity; however, such evidence is admissible when relevant for other purposes. (People v. Baptist (1979), 76 Ill. 2d 19, 27, 389 N.E.2d 1200.) Other crimes evidence has been held admissible if relevant to demonstrate knowledge, intent, motive, design, plan or identification (People v. Lindgren (1980), 79 Ill. 2d 129, 137, 402 N.E.2d 238), and has also been held admissible when relevant to police investigation of the offense at issue where such investigatory procedures involved an integral part of the narrative of that arrest. People v. Davis (1981), 93 Ill. App. 3d 187, 191, 416 N.E.2d 1179.

Here, even assuming that the evidence purporting to show that the vehicle was stolen was not admissible, any error that occurred was cured by defendant’s objection which was sustained and by the trial court’s instruction to the jury to disregard the question and response. People v. Carlson (1980), 79 Ill. 2d 564, 577, 404 N.E.2d 233.

Defendant next contends that the testimony of Detective Tosello that Mario Tassin viewed a lineup on January 3, 1980, and did not make any identification was improper hearsay evidence. Mario’s testimony established that she identified defendant from a lineup held on January 4, 1980, but her testimony makes no reference to a January 3 lineup. Defendant maintains that Tosello’s testimony was improper because a policeman who conducts a lineup may not testify that a witness identified the defendant unless the witness himself also testifies to the lineup identification, citing People v. Rogers (1980), 81 Ill. 2d 571, 400 N.E.2d 223. Defendant urges us to extend this rule to the facts of the instant case where the testimony concerned a lineup where no identification was made. However, under the facts of this case, even if Tosello’s testimony was improper, any error that occurred was harmless. Where hearsay evidence is admitted in error and there is no reasonable possibility that a jury would have acquitted the defendant had the evidence been excluded, the admission of such evidence is harmless error. People v. Hall (1980), 90 Ill. App. 3d 1073, 1077, 414 N.E.2d 201, cert. denied (1981), 454 U.S. 893, 70 L. Ed. 2d 207, 102 S. Ct. 388.

Defendant next contends that he was prejudiced by the following statement made by the prosecutor in closing argument:

“Ladies and gentlemen, you have heard during this case more evidence about the guilt of Arvel Rowe than almost any case that I have ever tried.”

Objection to this comment was overruled.

Generally, a prosecutor may not state his opinion as to the guilt or innocence of the defendant or compare the sufficiency of the evidence to that of other cases. (People v. Bitakis (1972), 8 Ill. App. 3d 103, 289 N.E.2d 256; People v. Martinez (1979), 76 Ill. App. 3d 280, 395 N.E.2d 86.) However, here the trial court instructed the jury that closing arguments are not evidence and that any argument or statement made by the attorneys which is not based on the evidence should be disregarded. Instructions of this nature have been held to cure any potential prejudice arising from a prosecutor’s improper remarks in closing argument. (People v. Olejniczak (1979), 73 Ill. App. 3d 112, 122, 390 N.E.2d 1339.) Accordingly, on the record before us we find that the complained of remark did not constitute a material factor in defendant’s conviction.

Defendant next contends that it was reversible error for the jury to be instructed as to the definition of circumstantial evidence and the fact that circumstantial evidence could be used in reaching its verdict. Defendant maintains that there was no circumstantial evidence in this case. We disagree.

Circumstantial evidence is “proof of facts and circumstances from which the trier of fact may infer other connected facts which reasonably and usually follow according to common experience.” (People v. Stokes (1981), 95 Ill. App. 3d 62, 68, 419 N.E.2d 1181.) In the instant case the jury heard evidence from which it could infer defendant’s guilt. Officer Graham testified that defendant was arrested in a yellow car the day after the murder. Such information, when combined with Mario’s testimony that she saw defendant leave the scene of the robbery in a yellow car, would allow the jury to infer defendant’s guilt. Accordingly, the trial court did not err by instructing the jury on circumstantial evidence.

Defendant finally contends that he was improperly sentenced to extended-term sentences of 60 years for murder and 40 years for armed robbery. Defendant maintains that the murder in this case was not accompanied by “exceptionally brutal or heinous behavior indicative of wanton cruelty” as required by statute. (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 5—3.2(b)(2).) Defendant also argues that even if the offense itself is sufficient to justify an extended term, his participation in the offense is not. Defendant emphasizes that he was not the “trigger man.”

The law is clear in Illinois that a sentence will not be altered on review absent an abuse of the trial court’s discretion. (People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541.) In imposing an extended-term sentence, “the application of the statute is determined by the ‘offense’ rather than by the extent or nature of the offender’s participation.” (People v. Gray (1980), 87 Ill. App. 3d 142, 153, 408 N.E.2d 1150, cert. denied (1981), 450 U.S. 1032, 68 L. Ed. 2d 228, 101 S. Ct. 1745.) In Gray this court upheld the imposition of an extended-term sentence where the defendant’s conviction was based on an accountability theory. 87 Ill. App. 3d 142, 147.

Here, the sentencing judge found that “there was brutal and heinous conduct on behalf of the defendant, indicating wanton cruelty under the act.” The sentencing judge also found that there were no factors in mitigation. We believe that the trial court properly found that the offense was heinous and indicative of wanton cruelty, based on the fact that even though the robbery was accomplished, Cunningham gratuitously shot Mr. Rouhman with a shotgun in the presence of two young girls.

Defendant also argues that his extended-term sentence for armed robbery is improper. Specifically, defendant maintains that the imposition of the extended-term sentence for his armed robbery conviction was statutorily impermissible under section 5 — 8—2(a) of the Unified Code of Corrections, which provides:

“A judge shall not sentence an offender to a term of imprisonment in excess of the maximum sentence authorized by Section 5 — 8—1 for the class of the most serious offense of which the offender was convicted unless the factors in aggravation set forth in paragraph (b) of Section 5 — 5—3.2 were found to be present. ***” (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—2(a).)

Section 5 — 5—3.2(b)(2) of the Code provides that an extended sentence may be imposed “[w]hen a defendant is convicted of any felony and the court finds that the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty.” Ill. Rev. Stat. 1979, ch. 38, par. 1005-5-3.2(b)(2).

The plain language of the statute authorizes an extended-term sentence only “for the class of the most serious offense” of which defendant was convicted. There is no language in the statute that authorizes an extended-term sentence for the class of the lesser offense of which defendant was convicted. Furthermore, penal statutes are to be strictly construed in favor of an accused and any ambiguity therein should be resolved in favor of lenity. (People v. DeSimone (1982), 108 Ill. App. 3d 1015, 1024, 439 N.E.2d 1311.) In light of this principle of statutory construction and the plain language of the extended-term statute, we conclude that defendant could only properly receive an extended-term sentence for his murder conviction since it belonged to the class of the most serious offense of which he was convicted.

In People v. Evans (1981), 87 Ill. 2d 77, 87, 429 N.E.2d 520, our supreme court held that “[w]hen section 5 — 8—2(a) is read in conjunction with section 5 — 5—3.2, it is clear from the plain language of the statutes that [in order for an offender to receive an extended sentence] the most serious offense of which the offender is convicted must be accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty.” The Evans court also noted “that the present legislative scheme could lead to the anomalous result of insulating a defendant from receiving an extended sentence for an offense accompanied by wanton cruelty by virtue of his conviction of a more serious offense.” (87 Ill. 2d 77, 88.) We believe that Evans supports our holding in the instant case.

The appellate court has issued conflicting opinions regarding the permissibility of multiple extended-term sentences. In People v. Walsh (1981), 101 Ill. App. 3d 1146, 1150, 428 N.E.2d 937, this court held that under section 5 — 8—2 of the Unified Code of Corrections, an extended term may be imposed only for the most serious offense of which the offender is convicted. (Accord, People v. Winston (1982), 106 Ill. App. 3d 673, 435 N.E.2d 1327; People v. Freeman (1982), 104 Ill. App. 3d 980, 433 N.E.2d 974.) In People v. DeSimone (1982), 108 Ill. App. 3d 1015, 1026, 439 N.E.2d 1311, this court held that “extended terms may be imposed for more than one offense when all of the offenses are within the class of the most serious offense committed by the defendant.” However, DeSimone is distinguishable from the case at bar since there, defendant was convicted of two Class X felonies. Recently, in People v. Mims (1982), 111 Ill. App. 3d 814, 821-22, 444 N.E.2d 684, this court held that “extended term sentences may be imposed in appropriate circumstances, for different classes of offenses, even in those situations where the offenses are not the most serious for which an offender is convicted.” The holding in Mims, however, is not consistent with our reading of the statute, nor, in our view, is it required by People v. Williams (No. 51870, filed April 16, 1982) (Williams I) upon which the Mims court relied. Accordingly, we hold that defendant was improperly sentenced to an extended-term sentence for his armed robbery conviction. Therefore, we reduce that sentence to a term of 30 years, the maximum for a Class X felony. Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—1(3).

For the aforementioned reasons we affirm defendant’s convictions and his sentence for murder and reduce his sentence on the armed robbery conviction.

McNAMARA, P.J., and RIZZI, J., concur.

      The Williams I opinion was withdrawn by the supreme court. See People v. Williams (1982), 93 Ill. 2d 309, 444 N.E.2d 136.


author: JUSTICE O’CONNOR

text:
    TELEGRAPH SAVINGS & LOAN ASSOCIATION OF CHICAGO et al., Plaintiffs-Appellants, v. WILLIAM J. SCHILLING, Indiv. and as Commissioner of Savings and Loan Associations for the State of Illinois, Defendant-Appellee.
    First District (3rd Division)
    No. 80—2153
    Opinion filed May 25, 1983.
    Rehearing denied June 29, 1983.

      Baker & McKenzie, of Chicago (Francis D. Morrissey, James G. Staples, Michael K. Murtaugh, Daniel J. O’Connor, and Thomas A. Doyle, of counsel), for appellants.
    Tyrone C. Fahner, Attorney General, of Springfield (Michael J. Hayes, Roger P. Flahaven, and Gary E. Medler, Assistant Attorneys General, of counsel), for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Plaintiffs, Telegraph Savings & Loan Association of Chicago (Telegraph) and the officers and directors thereof, appeal from the order of the circuit court of Cook County dismissing with prejudice their chancery action against defendant, William J. Schilling, individually and as Commissioner of Savings and Loan Associations for the State of Illinois (Commissioner). By their suit, plaintiffs sought relief from defendant for his closing of Telegraph without giving the advance statutory written notice required except where an emergency existed; and without the Commissioner making a finding that an emergency existed.

Section 7 — 8 of the Illinois Savings and Loan Act (Ill. Rev. Stat. 1981, ch. 17, par. 3191, formerly Ill. Rev. Stat. 1979, ch. 32, par. 848) details the Commissioner’s authority to take custody of a savings and loan association and concludes:

“Unless the Commissioner finds that an emergency exists which may result in loss to members or creditors and requires that he take custody immediately, he first shall give written notice to the directors, trustees, or liquidators specifying the conditions criticized and state a reasonable time within which correction may be made.”

Section 7 — 12 of the Illinois Savings and Loan Act (Ill. Rev. Stat. 1981, ch. 17, par. 3195, formerly Ill. Rev. Stat. 1979, ch. 32, par. 852) provides:

“Immediately upon taking custody of an association or trust, the Commissioner shall mail a written notice thereof to the president or secretary and not less than 2 directors of such association, or to 2 or more of the trustees of any trust, or 2 or more of the liquidators of an association in liquidation. If the contention is made that the Commissioner has no legal grounds for taking custody of the association or trust, the directors or officers of the association or the trustees or liquidators thereof, as the case may be, at any time within 10 days after the mailing of such notice, or within such further periods of time as the Commissioner may extend, but not to exceed an additional 60 days, may file a complaint in the Circuit Court of Sangamon County, Illinois or in the Circuit Court of the county in which the association is located, to enjoin further custody. The court thereupon shall cite the Commissioner to show cause why further custody should not be enjoined. If upon a hearing thereon, the court finds that such grounds did not or do not then exist, it may enter an appropriate order in accordance with the findings of fact, or an order enjoining the Commissioner or any appointees acting under his direction from further custody.”

Defendant filed a 12-point motion to dismiss, which was granted. The three grounds stated by the trial court in granting the motion were: (1) the Federal court had assumed exclusive jurisdiction over the matter; (2) injunctive relief was no longer effective; and (3) the action was sustainable only in the law division rather than the chancery division.

The factual background of this litigation is stated by the United States Court of Appeals for the Seventh Circuit in its opinion in the consolidated appeals of Telegraph Savings & Loan Association v. Schilling (7th Cir. 1983), 703 F.2d 1019. This opinion was handed down on March 29, 1983, after the oral argument in the case at bar. The court there stated:

“In this appeal Telegraph Savings & Loan Association (Telegraph) challenges its closure by the Illinois Commissioner of Savings and Loan Associations (Commissioner), the appointment of the Federal Savings & Loan Insurance Corporation (FSLIC) as receiver and the subsequent sale of Telegraph’s assets to First Federal Savings & Loan Association. The district court held that the takeover and sale were proper. We affirm.
Telegraph was an Illinois chartered savings and loan association owned by one hundred and twenty stockholders and insured by the FSLIC. In the late 1970’s Telegraph began experiencing financial difficulties. As a result of heavy losses, it was unable to satisfy the reserve and net worth mínimums required by 12 C.F.R. §563.13. When Telegraph’s financial condition continued to decline at an ever-increasing rate, the state and federal officials charged with regulating savings and loan associations became alarmed. A special meeting was held in October 1979 to identify the cause of Telegraph’s decline and to propose some solutions. Telegraph’s Board of Directors and representatives of the Commissioner, the FSLIC and the Federal Home Loan Bank Board (FHLBB) attended. At this meeting the Commissioner concluded that undercapitalization was causing Telegraph’s shaky financial condition and indicated that, unless this situation was remedied, the state would have to assume custody.
Additional meetings were held in 1979 and 1980 to monitor Telegraph’s financial status and to develop a plan for infusing Telegraph with new capital. Possible mergers were considered but only one concrete plan surfaced. The Heron Corporation offered to purchase 80% of Telegraph’s preferred stock if the FSLIC would finance the purchase with a fifteen year interest free loan. The FHLBB vetoed the Heron proposal.
When no other buyers came forward, the Commissioner and federal officials concluded that they had no choice but to take control. A takeover plan was devised whereby the Commissioner would assume custody of Telegraph and FHLBB would immediately appoint the FSLIC receiver. The FSLIC, in turn, would immediately transfer Telegraph’s assets to First Federal Savings & Loan Association under a purchase and assumption agreement.
According to this prearranged plan, the takeover was effected on May 22, 1981 at Telegraph’s main office. Just before the usual closing time the Commissioner served Telegraph’s president with a notice that the state was assuming immediate custody. The notice explained that Telegraph’s financial instability had created an emergency situation which necessitated the takeover. Telegraph had not received prior written notice of this decision [required, unless an emergency exists, by Ill. Rev. Stat. 1979, ch. 32, par. 848, now Ill. Rev. Stat. 1981, ch. 17, par. 3191]. After serving the president with the notice, the Commissioner sent his deputy to the teller’s window where one of Telegraph’s customers, A. Raymond Bacon, was waiting to withdraw twenty-five dollars. Bacon was making the withdrawal solely because the FHLBB had requested him to do so. When Bacon approached the teller, the deputy intervened. He took the withdrawal slip from Bacon and handed it, along with an affidavit stating that Bacon had been unable to withdraw his money, to the FHLBB agent. The purchase and assumption agreement was executed immediately and the next day Telegraph’s operation opened under First Federal’s name.
Telegraph then filed identical actions challenging the takeover and the appointment of the FSLIC as receiver in the federal court for the Northern District of Illinois and in the state court in the Circuit Court of Cook County. The federal action was assigned to Judge Grady. The state action was removed to federal court and assigned to Judge Marshall. Judge Marshall held that federal courts have exclusive jurisdiction over any action to remove the FSLIC as receiver and concluded that, since the state court never had jurisdiction over the action, it had no authority to remove it to federal court. Declining to grant Telegraph’s request to remand back to the state court, Judge Marshall dismissed the action. Telegraph appealed to this court.
Telegraph also filed a new state court action, this time proceeding against the Commissioner but not the federal agencies. The state court, relying on Judge Marshall’s opinion that federal courts have exclusive jurisdiction, dismissed that action. Telegraph appealed this dismissal; that appeal is currently pending in the state court.
The central issue in the case proceeding before Judge Grady was whether the requirements for appointment of an FSLIC receivership, set forth in 12 U.S.C. § 1729(c)(2) had been satisfied. Section 1729(c)(2) provides that the FHLBB has the authority to appoint the FSLIC receiver over a state savings and loan institution whenever it determines:
(A) that *** (ii) an insured institution has been closed by or under the laws of any State; and
(B) that one or more of the grounds specified in paragraph (6)(A) of section 1464(d) of this title, existed with respect to such institution at the time a conservator, receiver, or other legal custodian was appointed, or at the time such institution was closed ***; and
(C) that one or more of the holders of withdrawable accounts in such institution is unable to obtain a withdrawal of his account, in whole or in part; ***.
12 U.S.C. § 1729(c)(2). Judge Grady concluded in response to defendants’ motion for summary judgment that subsections (A) and (C) had been satisfied.
Thereafter a bench trial was held on the issue of whether subsection (B) had been satisfied. The FHLBB argued that applying the statutory test of insolvency, which is whether the ‘assets of the association are less than its obligations to its creditors and others ***’ 12 U.S.C. §1464(d)(6)(A)(i), Telegraph had been insolvent at the time of the appointment. Therefore, the FHLBB contended, section 1729(c)(2)(B) had also been fulfilled. Judge Grady agreed and entered judgment in favor of defendants." 703 F.2d 1019, 1021-22.

The Court of Appeals also stated:

“The difference between a situation where the state appoints the FSLIC receiver and one where the FHLBB appoints the FSLIC receiver is the type of judicial review available. A section 1729(c)(1) receivership, where the receiver is appointed by the state commissioner acting pursuant to state law, can be challenged in state court. In contrast, where the FHLBB, acting on its own, appoints the FSLIC receiver the challenge to that receivership can be raised only in federal court. 12 U.S.C. § 1464(d)(6)(A).
* * *
Telegraph characterizes the takeover orchestrated jointly by state and federal officials as a sham procedure because it created a receivership which could be challenged only in federal court. It emphasizes that if the Commissioner had assumed custody and appointed the FSLIC receiver without acting in conjunction with federal authorities, the Commissioner’s finding of an emergency situation justifying the takeover without prior written notice could have been challenged in state court. Since the FHLBB, rather than the state, appointed the FSLIC receiver, however, Telegraph was restricted to challenging the action in federal court. And since the district court held that the issue of whether Telegraph was closed in compliance with state law was irrelevant to the issue of whether the FHLBB properly determined that Telegraph was insolvent under 12 U.S.C. § 1464(d), Telegraph claims that it was caught in a ‘jurisdictional gap between the state and federal spheres, leaving [Telegraph] without a forum.’ Appellant’s br. at 31. As a result of this ‘jurisdictional gap,’ Telegraph complains there is no court where the issue of whether the Commissioner acted in compliance with state law can be raised.” 703 F.2d 1019, 1023-24.

With reference to Telegraph’s right to judicial review, the Court of Appeals said:

“The fact that the receivership must be challenged in federal court instead of state court, however, does not deprive Telegraph of effective judicial review. While the statute, as amended, makes no provision for reviewing actions of the state authorities, it does provide for a full review of whether the FHLBB was justified in appointing the FSLIC. In the overall statutory scheme the loss of review in state court is a trade-off for federal insurance. Congress has concluded that the interests of FSLIC’s financial integrity demand that the FHLBB be able to assert its authority when it deems necessary. It has also provided for full review in federal court of whether Telegraph’s financial condition justified appointment of a receiver. Thus, it is difficult to understand how Telegraph can complain that it has been denied a forum.
* * *
Where, as here, the state and federal authorities cooperate to close a state institution and appoint the FSLIC receiver in an effort to minimize financial risks and prevent depositor panic, compliance with the closing precondition becomes ‘substantially a ceremonial formality.’ Fidelity Savings & Loan Ass’n v. Federal Home Loan Bank Board, 689 F.2d 803, 813 (9th Cir. 1982). Thus, what Telegraph characterizes as a sham proceeding was merely the cooperative effort of state and federal authorities to protect depositors while at the same time minimizing FSLIC liability.
Yet, Telegraph has failed to show that denial of state court review deprived it of any rights. The evidence overwhelmingly establishes that Telegraph was in precarious financial condition and was continuing to decline. The evidence also establishes that Telegraph attended numerous meetings in 1979 and 1980 where Telegraph was put on notice that both state and federal officials intended to act unless its financial condition stabilized.
Telegraph apparently believes its financial situation was not sufficiently precarious to justify the appointment of a receiver and that it should have a full opportunity to challenge the appointment. We agree. And that is precisely the opportunity it had in federal court. The mere fact that its challenge to the receiver’s appointment had to be framed with reference to section 1729(c)(2)’s requirements rather than by way of a challenge to the Commissioner’s exercise of his state authority is not significant. Both challenges required Telegraph to establish that it was not insolvent or operating in a manner which put its depositors’ money at risk. It had this opportunity in federal court and failed. Full judicial review has been granted.” 703 F.2d 1019, 1024-25.

The Court of Appeals, concerning Telegraph’s contention that it had been deprived of a forum in which to litigate its challenge to the Commissioner’s takeover without prior written notice and a finding of an emergency, stated:

“Telegraph claims that Judge Marshall erred in refusing to sever and remand the state law counts against the Commissioner. It also asserts that Judge Marshall’s determination that the state claims were 'part and parcel’ of the federal action was contradicted by Judge Grady’s later ruling that a challenge to the Commissioner’s action should be litigated in state court. Telegraph maintains that these two rulings operated to deny it the right to challenge the Commissioner’s ex parte state action, a right which is granted by Ill. Rev. Stat. ch 32, §852. Telegraph complains that as a result of the two contradictory rulings it has no forum in which to challenge the Commissioner’s finding that there was an emergency situation justifying a takeover without prior written notice.
We find nothing contradictory in the two rulings. Judge Marshall refused to remand the claim against the Commissioner because he believed that all Telegraph’s claims were part of its challenge to the FHLBB’s appointment of the FSLIC as receiver and that a challenge to a federal receivership could be maintained only in federal court. Judge Grady held that review of state law questions was not part of an action to challenge a receiver under 12 U.S.C. § 1729(c)(2). The fact that Judge Grady dismissed the separately pleaded state law counts without prejudice merely indicates that these claims are independent of Telegraph’s challenge to a federal receivership under federal law. The dismissal cannot be read as a ruling on the validity of the state claims.
Telegraph’s real complaint is that the state court judge dismissed Telegraph’s second state court action because he read Judge Marshall’s dismissal to mean that the state court had no jurisdiction to hear the state claims. Whether Telegraph has a state cause of action is properly left to the state court. Neither Judge Marshall’s ruling nor Judge Grady’s ruling is binding on the state court. Since the state court dismissal is currently on appeal we leave it for the state appellate court to determine if Telegraph has any valid state claim.
We hold that Judge Grady’s ruling and Judge Marshall’s ruling are not in conflict and in no way operate to deny Telegraph a forum in which to challenge the propriety of the Commissioner’s action under state law. ” (Emphasis added.) 703 F.2d 1019, 1029-30.

It is apparent from the record before us that the State recognized that the Illinois courts were the proper forum for the disposition of plaintiffs’ State law claims; it is also clear that the State, while it so told the Federal courts, also told the State court that the Federal courts had jurisdiction of those claims. Judge Grady properly realized that the State’s challenge in the State court to State court jurisdiction of Telegraph’s State law claims because of the claimed exclusive Federal jurisdiction and its challenge in the Federal court to that court’s jurisdiction over State law claims could result in Telegraph being “whip-sawed” by being left without a forum in which to settle its State law claims.

Defendant appears to argue that because the trial court granted his motion to dismiss based in part on the pendency of the Federal court action as “another action pending between the same parties for the same cause” (Ill. Rev. Stat. 1979, ch. 110, par. 48(l)(c), now codified as Ill. Rev. Stat. 1981, ch. 110, par. 2 — 619(a)(3)), the subsequent actions of the Federal courts, either District or Court of Appeals, can have no effect in the case at bar. We disagree.

In International Games, Inc. v. Sims (1982), 111 Ill. App. 3d 922, 927, 444 N.E.2d 736, it was stated with reference to a Federal court’s failure to pass on State law claims:

“IGI is properly concerned, of course, that it may find itself without any redress for its grievances if the Federal court rules that it has no jurisdiction over Sims’ State law claims. This apprehension will be present in almost all section 48(l)(c) motions where the other action is pending in Federal court. Such speculation, however, cannot inhibit a court from exercising its discretion, for section 48(l)(c) can be used whenever another suit for the same cause and between the same parties is pending in another county, another State or in the Federal courts. (Skolnick v. Martin (1964), 32 Ill. 2d 55, 59-60, 203 N.E.2d 428.) If the Federal court ultimately dismisses Sims’ state law claims for lack of jurisdiction, IGI can reinstitute this complaint. Dismissal under section 48(l)(c) will not bar a subsequent suit in Illinois, because the ruling is not upon the merits of IGI’s claim. Presently, IGI may file this action as a compulsory counterclaim to the Federal suit and have its charges heard with that suit.”

Written notice was not given to Telegraph. It contends that it is entitled to a determination by a State court as to the existence of an emergency which would give the Commissioner the right to dispense with the giving of notice. We agree. Whatever the binding effect of the opinion of the Court of Appeals may be on certain facets of the litigation, it does not necessarily foreclose a finding by the State court of a lack of an emergency. Under the reasoning of International Games, Telegraph has a right to have its State law claims resolved in a State court.

The inconsistent positions taken by the State require a reversal of the dismissal by the circuit court of Cook County and a remandment to that court to determine whether the Commissioner exceeded his State powers under section 7 — 8 (Ill. Rev. Stat. 1981, ch. 17, par. 3191) and to what relief plaintiffs are entitled under section 7 — 12 (Ill. Rev. Stat. 1981, ch. 17, par. 3195).

Although the trial court in dismissing also held that injunctive relief against the Commissioner would be completely ineffective because he no longer had custody of Telegraph, that fact does not in and of itself bar plaintiffs from relief. Section 7 — 12 provides “[i]f upon a hearing thereon, the court finds that such grounds [legal grounds for taking custody] did not or do not then exist, it may enter an appropriate order in accordance with the findings of fact ***.” (Ill. Rev. Stat. 1981, ch. 17, par. 3195.) This provision may give a right to damages. The Court of Appeals in a footnote so noted:

“Although it held that the federal appointment could not be challenged under state law, the district court noted that if either the state or federal authorities violated state law, Telegraph may have an action for damages under Illinois law, Ill. Rev. Stat. ch. 32, §852, or under federal law, 42 U.S.C. §1983.” (703 F.2d 1019,1024 n.4.)

(“Ch. 32, §852” is now section 7 — 12 of the Illinois Savings and Loan Act (Ill. Rev. Stat. 1981, ch. 17, par. 3195).) See Mensik v. Smith (1960), 18 Ill. 2d 572, 586, 166 N.E.2d 265.

Defendant contends that such relief is not available to plaintiffs because they neither asked specifically for damages nor tendered an amendment so asking. Plaintiffs’ prayer for relief, however, prayed for “such other relief as is equitable.” The prayer for general relief “ '*** is the best prayer next to the Lord’s prayer.’ ” (See VanZanten v. VanZanten (1915), 269 Ill. 491, 497, 109 N.E. 986.) In addition, plaintiffs twice requested, once orally and once in a reply to the Commissioner’s brief in support of the motion to dismiss, an opportunity to amend.

On remand, plaintiffs, if they so see fit, will have the opportunity to move to amend to specifically seek damages and to transfer the cause to the law division. At that time their right to damages under section 7 — 12 can be fully presented to and considered by the trial court.

Because we hold that, under the circumstances shown, plaintiffs are entitled to have a State court pass on the State law questions, we find it unnecessary to consider other questions raised by defendant in this court to sustain the dismissal. They can be raised in and be passed upon by the circuit court.

The order of the circuit court of Cook County is reversed and the cause remanded for further proceedings.

Reversed and remanded.

McNAMARA, P.J., and McGILLICUDDY, J., concur.


author: JUSTICE JIGANTI

text:
    AMERICAN NATIONAL BANK & TRUST COMPANY OF CHICAGO, Trustee, et al., Plaintiffs-Appellants, v. THE VILLAGE OF ARLINGTON HEIGHTS et al., Defendants-Appellees.
    First District (4th Division)
    No. 82—416
    Opinion filed June 2, 1983.
    Robert A. Roth and Philip S. Wolin, both of Wolin & Rosen, P.C., of Chicago, for appellants.

      Jack M. Siegel, of Chicago, for appellees.
   JUSTICE JIGANTI

delivered the opinion of the court:

This action requires judicial interpretation of a zoning ordinance enacted by the defendant, Village of Arlington Heights (the Village). Section 1 of the ordinance provides for the reclassification of the property from a single-family (R — 1) zoning classification to a general business district (B — 2) classification and further provides that this change be indicated upon the zoning district map. Section 2 approves a 110,000 square foot planned development. Section 3 provides that the planned development shall be constructed in substantial compliance with plans already prepared by a certain architectural firm. Section 4 gives a detailed description of the nature of the planned development and provides that the development shall be subject to several conditions, among them condition No. 10, which states: “That the construction and development shall commence no later than one (1) year after the date of this ordinance and be completed within five years of the date hereof.” The one-year time period had expired when the plaintiff, a successor to the original promoter of the planned development project, abandoned the planned development and sought a building permit for another commercial use which would require that the property be zoned generally as B — 2. The Village denied the permit, contending that because the time requirement was not met, the property consequently reverted to its previous R — 1 zoning classification. The plaintiff subsequently filed a petition before the Arlington Heights Planning Commission to rezone the property from R — 1 to B — 2. The petition was denied.

The plaintiff filed a complaint for declaratory judgment, injunctive relief and a writ of mandamus in the circuit court. Count I of the complaint sought a declaratory judgment that the zoning reclassification section of the ordinance continued to operate in full force and effect and that therefore, the property maintained a B — 2 zoning classification. Count II sought a declaratory judgment that the Village was estopped from asserting that the property fell under any other than a B — 2 classification because certain affirmative actions were taken by the Village which induced the justifiable reliance of the plaintiffs upon the B — 2 classification. Count III sought a writ of mandamus compelling the Village to issue the necessary building permits. The circuit court dismissed all three counts of the plaintiffs’ complaint for failure to state a cause of action On appeal, the plaintiffs raise the same three issues and ask this court to remand their case to the trial court for further proceedings.

The first issue advanced by the plaintiffs is whether the zoning reclassification section of the ordinance continues to operate in full force and effect. Specifically, the plaintiffs argue that section 1 of the ordinance is not subject to any conditions and most importantly, is not subject to condition No. 10 of section 4, which provides that construction must commence within one year of the date of the ordinance. The plaintiffs admit that they did not comply with the one-year requirement or with the developmental specifications but argue that this is irrelevant because section 1 is severable from the rest of the ordinance. The plaintiffs essentially contend that the designation of the property as a B — 2 district in section 1 operates independently of the other sections of the ordinance and that therefore the property remains under a B — 2 classification even if the conditions set forth in the other sections fail.

The rules that govern the construction of statutes also apply to the construction of ordinances. (City of East St. Louis v. Union Electric Co. (1967), 37 Ill. 2d 537, 229 N.E.2d 522.) A statute or ordinance must be construed “to give it efficient operation and effect as a whole.” (S. Bloom, Inc. v. Korshak (1972), 52 Ill. 2d 56, 65, 284 N.E.2d 257, 263.) “The legislative intent must be gathered from the entire act rather than from one clause, sentence or section thereof, and courts may not confine their attention to the one part or section to be construed.” (Illinois Bell Telephone Co. v. Ames (1936), 364 Ill. 362, 365-66, 4 N.E.2d 494, 496.) If we examine the ordinance as a whole in the instant case, there is nothing to indicate that the rezoning classification section is severable from the other sections of the ordinance. The conclusion that the plaintiffs ask us to reach would require that we consider an isolated section out of the context of the entire ordinance. This we cannot do. Where this single ordinance is considered in its entirety, we believe that the rezoning provision was necessarily conditioned upon certain developmental specifications and time limitations.

The plaintiffs raise four arguments which they contend support their conclusion that section 1 is severable from the rest of the ordinance. We fail to find these arguments convincing for the reasons set out below. First, the plaintiffs contend that the rezoning classification section is not referred to in any other section of the ordinance and that it therefore is merely a general rezoning provision. However, this argument ignores the rule of construction set forth above that requires us to consider an ordinance as a homogenous whole rather than as the sum of a number of isolated sections. The mere fact that other sections of the ordinance do not specifically refer to section 1 does not in any way serve to divorce section 1 from its status as one of several interrelated provisions.

Second, the plaintiffs correctly point out that any ambiguity in a zoning ordinance must be decided in favor of the property owner. (Lubershane v. Village of Glencoe (1978), 63 Ill. App. 3d 874, 380 N.E.2d 890.) However, this argument presupposes that we find the instant ordinance to be ambiguous and, because we do not, it is unnecessary for us to utilize this rule of construction. Third, the plaintiffs properly observe that a property owner should be able to rely upon the terms used in a zoning ordinance to mean what they are commonly understood to mean. (County of Lake v. Gateway Houses Foundation, Inc. (1974), 19 Ill. App. 3d 318, 311 N.E.2d 371.) While we recognize the soundness of this rule, we do not agree with the plaintiffs’ conclusion that the only commonly understood meaning of the ordinance is that section 1 should be read in isolation of all of the other sections. Again, we are bound to construe the ordinance as a whole and cannot examine section 1 in a vacuum as the plaintiffs suggest we do. The final severability argument advanced by the plaintiffs is that the use of commas in the preamble of the ordinance indicates that the rezoning classification section is severable from all other sections of the ordinance. After a reading of the preamble, however, we find this argument to be meritless. The use of commas merely makes the preamble readable and in no way changes the intent or purpose of the ordinance.

Further, the conclusion that section 1 is not severable from the remainder of the ordinance and that the zoning provisions of the ordinance were conditioned upon a specific type of development to be commenced within a specific time frame finds further support in Illinois case law which permits the use of conditional zoning. In Goffinet v. County of Christian (1976), 65 Ill. 2d 40, 357 N.E.2d 442, the Illinois Supreme Court found that conditional zoning is permissible and that where the conditions set forth in an ordinance are not met, the authority granted by the ordinance is thereby terminated. The court concluded that when the conditions are not honored in such a case, the special use and the conditional zoning terminate and the prior zoning classification is reimposed. Although the ordinance in the Goffinet case contained a specific reverted clause addressing the zoning matter, we believe that the court’s reasoning is particularly pertinent to the case at bar. Where as here the ordinance contained specific conditions and where we are required to construe the instant ordinance as a whole, Goffinet offers support for our finding that upon failure of the ordinance’s conditions, the zoning reclassification failed as well. See also National Boulevard Bank v. Village of Schaumburg (1979), 76 Ill. App. 3d 388, 394 N.E.2d 1320, affd (1980), 83 Ill. 2d 228, 415 N.E.2d 333 (planned unit development expired by its own terms when not commenced within two years of adoption of ordinance); Nolan v. City of Taylorville (1981), 95 Ill. App. 3d 1099, 420 N.E.2d 1037 (separate rezoning ordinance and special use ordinance must be read together to determine validity).

The plaintiffs next raise an alternative argument that they justifiably relied upon certain affirmative actions of the Village and that therefore, the Village is estopped from asserting that the property falls under any other than a B — 2 classification. It is necessary to provide a brief summary of the facts pertinent to this issue in order to illuminate the plaintiffs’ contentions. In October 1977, Eugene Sadin, not a party to the instant action, obtained an option to purchase the four parcels of land that were the subject of the instant ordinance. The ordinance was enacted on November 6, 1978. In April 1979, the plaintiff in the instant case informed the Arlington Heights Planning Department that Sadin no longer controlled the property. The plaintiff then submitted building plans for a retail and office building complex that was similar to the type of development detailed in the ordinance. This project was later abandoned by the plaintiff.

In January 1981, the plaintiff and another individual submitted a plan detailing a proposed development for a single parcel of the property. The Village of Arlington Heights Plat and Subdivision Committee advised the plaintiff that, with the exception of a restaurant which required a special use permit, no plan commission hearing would be necessary to proceed and that he should submit his project plans directly to the engineering and building department. This second project was also abandoned.

The third project advanced by the plaintiff was pursued by him individually and again involved only one parcel of the property. The new plan called for construction of a building spanning 12,000 square feet to be used by retail tenants. This plan was submitted directly to the building department. The plaintiff contends that this submission was made pursuant to the Arlington Heights Plat and Subdivision Committee recommendation of February 17, 1981, and pursuant to the advice of the village planner, Joseph Kessler, who stated that the single parcel of property was zoned as B — 2. The director of the building department thereafter refused to process the plaintiff’s application for permits until after an opinion of the village attorney could be obtained as to the current zoning classification of the parcel of property. The village attorney issued his opinion, stating that according to the conditions listed in the ordinance, the B — 2 zoning classification had expired and the property had reverted to a R — 1 zoning district. The Village denied the plaintiffs’ petition for a zoning reclassification and this lawsuit followed.

The plaintiffs correctly observe that in order to prove a vested property interest and a consequent estoppel on the part of a municipality, the plaintiffs must establish: (1) evidence of an affirmative act on the part of the municipality; (2) evidence that this affirmative act induced the complained of action and (3) evidence that the plaintiffs substantially changed their position as the result of their justifiable reliance (See Deer Park Civic Association v. City of Chicago (1952), 347 Ill. App. 346, 106 N.E.2d 823; Solomon v. City of Evanston (1975), 29 Ill. App. 3d 782, 331 N.E.2d 380.) Because we find that there were insufficient affirmative acts perpetrated by the Village to support the plaintiffs’ estoppel argument, we believe that the trial court properly dismissed this count of the complaint.

The plaintiffs cite three instances of purported affirmative actions taken by the municipality which they contend induced their justifiable reliance. First, the plaintiffs state that as late as February 17, 1981, the village planner, Joseph Kessler, informed the plaintiffs that the property fell under a B — 2 zoning classification. Second, the plaintiffs point out that on February 17, 1981, the plat and subdivision committee told the plaintiff that with the exception of a restaurant, which required a special use permit, no plan commission hearing would be necessary to proceed with the project. Third, the plaintiffs observe that at the times pertinent to this lawsuit the zoning district map reflected that the property was zoned under a B — 2 classification.

A finding of estoppel against a public body is not favored. (County of Cook v. Patka (1980), 85 Ill. App. 3d 5, 405 N.E.2d 1376.) The affirmative acts which induce reliance by a party must be acts of the municipality itself, such as legislation by a city council, rather than merely the unauthorized act of a ministerial officer or a ministerial misinterpretation. (Lake Shore Riding Academy, Inc. v. Daley (1976), 38 Ill. App. 3d 1000, 350 N.E.2d 17.) A person who deals with a governmental body takes the risk of having accurately ascertained that he who purports to act for it stays within the bounds of his authority and that this is so even though the agent himself may have been unaware of the limitations on his authority. (Lake Shore Riding Academy, Inc. v. Daley (1976), 38 Ill. App. 3d 1000, 350 N.E.2d 17.) In the instant case, we believe that the representations made by the village planner and the plat and subdivision committee were the unauthorized acts or misinterpretations of ministerial officers rather than acts of the municipality itself. We also fail to find that the designation of the property on the zoning map as B — 2 acted as an affirmative action which could work an estoppel against the Village. Publication of a zoning map does not give validation or a variation to such differences as may exist between the classification appearing on the map and those existing under the zoning ordinance. (Oak Forest Mobile Home Park, Inc. v. City of Oak Forest (1975), 27 Ill. App. 3d 303, 326 N.E.2d 473.) We have previously found that the zoning reclassification section of the ordinance expired upon failure of the ordinance’s conditions. Consequently, the fact that the map reflected a B — 2 zoning classification cannot control over the pertinent provisions of the ordinance. Because we find that there were insufficient affirmative actions perpetrated by the Village, we need not address the other two elements of the plaintiffs’ estoppel argument. We believe that the trial court properly dismissed this count of the plaintiffs’ complaint.

The third issue raised by the plaintiffs is whether the trial court improperly dismissed count III of their complaint which sought a writ of mandamus compelling the Village of Arlington Heights to issue the necessary building permits. However, because count III is predicated upon the sufficiency of either of the other two counts of the plaintiffs’ complaint, we need not address this issue since we find that the trial court properly dismissed the other two counts.

For the foregoing reasons the judgment of the trial court is affirmed.

Affirmed.

JOHNSON and ROMITI, JJ., concur.

       “WHEREAS, the Plan Commission of the Village of Arlington Heights has heretofore conducted a public hearing to consider a petition for reclassification, upon annexation, from R — 1 One-Family Dwelling District to B — 2 General Business District, approval of a planned development and three special use permits for the property located at the northeast corner of South Arlington Heights Road and Lincoln Road, extended ***
      WHEREAS, the President and Board of Trustees have determined that the annexation, rezoning, approval of the planned development and special uses, subject to the terms and conditions hereinafter set forth, is in the best interests of the Village of Arlington Heights; ***.”