specially concurring in part and dissenting in
part:
I concur in part and dissent in part. The majority correctly notes that, as a non-home-rule municipality, Olympia Fields possesses only those powers which are specifically conferred by the Illinois Constitution or by statute. People ex rel. Ryan v. Village of Hanover Park, 311 Ill. App. 3d 515, 724 N.E.2d 132 (1999). The Village argues that under section 11—13—1 of the Illinois Municipal Code (65 ILCS 5/11—13—1 (West 1998)), the Village has the zoning power to (a) regulate and limit the intensity of the use of lot areas; (b) classify, regulate and restrict the location of trades and business, residential and other uses; and (c) divide the entire municipality into districts of such different classes. The Village relies most strongly on subsection (7), which allows municipalities “to prohibit uses, buildings or structures incompatible with the character of such districts.” 65 ILCS 5/11 — 13—1(7) (West 1998). This authority has been upheld by this court: “Decisions regarding what uses are permitted in a zoning district and where the boundaries of the districts are to be located are legislative decisions to be made by the municipalities.” Richardson v. Kitchin, 75 Ill. App. 3d 961, 964, 394 N.E.2d 796 (1979).
The Village argues that an ordinance “may impose more rigorous or definite regulations in addition to those enacted by the state legislature so long as they do not conflict with the statute.” Village of Wauconda v. Hutton, 291 Ill. App. 3d 1058, 1060, 684 N.E.2d 1364 (1997). A municipality may exercise concurrent police power provided the regulations are not inconsistent with the statute. Hutton, 291 Ill. App. 3d at 1060-61. However, Hutton also held “[w]hile non-home-rule municipalities have the authority to enact ordinances, such ordinances may in no event conflict with state law or prohibit what a state statute expressly permits.” Hutton, 291 Ill. App. 3d at 1060. Consequently, our decision should turn on whether the ordinance in question conflicts with the state statute.
The pertinent portion of the Village’s Zoning Ordinance provides: “Home occupation means any gainful occupation or profession engaged in by an occupant of a dwelling unit as a use which is clearly incidental to the use of the dwelling unit for residential purposes. The ‘home occupation’ shall be carried on wholly within the principal building or within a building accessory thereto, and only by members of the family occupying the premises ***.” Olympia Fields Municipal Code §§ 22 — 187, 22 — 207, 22 — 227 (Ord. No. 17, as revised May 11, 1981).
The Child Care Act of 1969 (225 ILCS 10/2.18 (West 1998)) provides:
“§ 2.18. ‘Day care homes’ means family homes which receive more than 3 up to a maximum of 12 children for less than 24 hours per day. The number counted includes the family’s natural or adopted children and all other persons under the age of 12. The term does not include facilities which receive only children from a single household.”
The Village notes that Hawthorne’s application for a zoning variance stated that she wished to use her home to provide care for up to 14 children. This would not be allowed under the definition of “day care homes” and the trial court’s order cannot be read to allow more than 12 children in the home.
The Act defines “day care homes” as being “family homes.” As “family homes” by definition are located in residential areas, I agree with the majority that the Village could not use its zoning ordinance to preclude “day care homes” from its residential areas. I note that at oral argument the Village denied that it attempted to do so. The Village urges us to focus on the actual conflict between the zoning ordinance and the Child Care Act.
The trial court specifically held that the municipality’s regulations which conflicted with the Act and the DCFS regulations included: (1) restrictions on the number of children who may be cared for in a day care home; (2) restrictions on the employment of nonfamily members to assist in the care of children in a day care home; and (3) restrictions limiting operations of a DCFS-licensed day care home to the building portion of the day care home operator’s property. The Village argues, “Since these restrictions are the essence of the Village’s home occupation ordinance, the circuit court effectively held the Village was totally preempted from regulating home day care pursuant to its rightful authority.”
In holding that “[t]he trial court’s finding is consistent with the law on preemption as it relates to zoning ordinances enacted by non-home rule units” (328 Ill. App. 3d at 313) the majority also treats the issue before us as one of preemption. While I agree that this is the issue, I disagree with the majority’s holding that the Child Care Act has preempted the field of day care regulation to such an extent that a municipality cannot affect it by zoning limitations.
As the majority points out, under the Child Care Act, “[t]he authorized standards are specifically restricted to 15 enumerated areas, none of which authorizes the DCFS to preempt non-home-rule zoning authority. *** The DCFS must require day care homes to comply with municipal building and fire safety codes, but does not exempt day care homes from other zoning requirements.” 328 Ill. App. 3d at 303-04. Similarly, the Village cogently argues that the decision in County of Du Page v. Elliott, 85 Ill. App. 3d 225, 406 N.E.2d 592 (1980), appropriately set the standard for determining whether a particular use “is clearly incidental to the use of the dwelling unit for residential purposes.” There, this court held that the intensity of the use of a home for five individual counseling sessions per week and two group sessions with nine individuals per week plus weekend sessions for groups of 15 people approximately 10 times a year was not conducive to the maintenance of the residential character of a neighborhood and therefore was not incidental to residential use.
The Village also cites several cases from other jurisdictions. In Schofield v. Zoning Board of Adjustment, 169 N.J. Super. 150, 404 A.2d 357 (1979), the court held that providing a day care center for 12 to 18 children did not constitute a “home occupation” as it is radically different from “babysitting” and such use was not incidental to residential use. In Board of Commissioners v. Harsch, 78 Pa. Commw. 395, 467 A.2d 1183 (1983), the court held that the state’s statute addressing licensing of family day care homes did not preempt the field of day care regulation to such an extent that a township could not affect it by zoning limitations; however, a township ordinance which effectively excluded all day care facilities from residential areas was exclusionary and therefore invalid. In City of Manassas v. Rosson, 224 Va. 12, 294 S.E.2d 799 (1982), the Virginia Supreme Court held that a zoning ordinance which restricted the right of limited home occupation in residential districts to immediate family residing in the dwelling was substantially related to the promotion of public health, saftey and welfare.
This is a case of first impression in Illinois. The issue of preemption of local zoning regulations by the Child Care Act has never been ruled upon by an Illinois court of review. There is also no legislative history available to assist in interpreting the Act. Because of this lack of Illinois authority, it is proper for this court to consider out-of-state authority addressing the same issue. “Comparable court decisions of other jurisdictions, while not determinative of issues before an Illinois court, are persuasive authority and entitled to respect.” In re Marriage of Raski, 64 Ill. App. 3d 629, 633, 381 N.E.2d 744 (1978). It is well settled that in the absence of an Illinois determination on a point of law, the courts of this state will look to other jurisdictions as persuasive authority. Cooper v. Hinrichs, 10 Ill. 2d 269 (1957).
While the majority chides the Village for strongly relying on cases from other jurisdictions, neither Hawthorne nor amicus cites a single case from any jurisdiction holding that day care homes are exempt from zoning regulation or that state regulations of day care providers preempt zoning regulations. The majority relies on Illinois cases where state statutes were found to preempt local ordinances. These include the operation of landfills, reclamation of strip-mined land and use of pesticides. I believe that these cases are factually inapposite. As to the regulation of pesticides, our supreme court looked at the Pesticide Act and the Pest Control Act and concluded: “[i]t is apparent from the acts that the General Assembly has intended that the State occupy exclusively the field of pesticide regulation.” Pesticide Public Policy Foundation v. Village of Wauconda, 117 Ill. 2d 107, 116, 510 N.E.2d 858 (1987). The provisions of the Child Care Act do not make it apparent that the legislature intended that the State exclusively occupy the field of day care home regulation.
The Village argues persuasively that, in determining the issue of preemption, we should adopt a multipart test. In Blue Earth County Park Procedures v. County of Blue Earth, 558 N.W.2d 25 (Minn. App. 1997), the Minnesota Court of Appeals articulated a four-part test for determining whether a statutory regulation so “occupies the field” as to preempt municipal zoning authority: (1) What is the subject matter being regulated? (2) Has the subject matter been so fully covered by state law as to have become solely a matter of state concern? (3) Has the legislature in partially regulating the subject matter indicated that it is a matter solely of state concern? (4) Is the subject matter itself of such nature that local regulation would an have unreasonably adverse effect upon the general public?
I agree that the Village could not exclude all day care homes from residential areas, but I do not believe that the ordinance in question does that. While I do not believe that the ordinance rises to the level of exclusionary zoning, I do believe that portions of it do conflict with the Child Care Act. Based on the holding in Village of Wauconda v. Hutton, 291 Ill. App. 3d 1058 (1997), I would resolve these conflicts as follows.
(1) As to the ordinance’s restriction limiting operations of a DCFSlicensed day care home to the building portion of the day care home operator’s property, this directly conflicts with DCFS’ requirement in section 406.8(k) that such a home provide an outdoor play area. While neighbors may indeed complain about the noise made by children at play, this type of activity is incidental to the use of the home as a residential property and it therefore cannot be prohibited by the zoning ordinance.
(2) The ordinance’s restriction prohibiting nonfamily members from being employed to work in the home is rational and is substantially related to the promotion of public health, safety and welfare for the reasons cited in City of Manassas v. Rosson, 224 Va. 12, 294 S.E.2d 799. It is therefore enforceable.
(3) As to the allegation that the zoning ordinance places restrictions on the number of children who may be cared for in a day care home, on its face, the ordinance does not restrict the number of children who may be cared for in a day care home. The Child Care Act requires a second person to assist in the supervision of more than eight children. If no qualified family member is available to fill this position, it is the Child Care Act which would require that there be a limit of eight children present in the home.
For the above reasons, I concur in part and dissent in part from the majority’s opinion.