*1 HAWTHORNE, THE OF Plaintiff-Appellee, D. VILLAGE SONYA al., Defendants-Appellants, et
OLYMPIAFIELDS Division) (5th 1 — 01—0447 First District No.
Opinion February filed 2002. QUINN, dissenting J., concurring part part. specially *2 (John Chicago Murphey Rosenthal, Murphey, Janega, & B. Coblentz of Kolman, counsel), appellants. for and Judith of N. (Jonathan Baum, counsel), Chicago Zavis K. of
Katten Muchin Law, Inc., Chicago (Amy Lawyers’ Rights both of Committee for Civil Under counsel), Zimmerman, appellee. L. for counsel),
Miner, Shapiro, Galland, Chicago (Carolyn & for Barnhill amici curiae. opinion the of the
PRESIDING JUSTICE CAMPBELL delivered court: (the appeals
Defendant, Olympia Village), Fields Village the plaintiff, in partial summary judgment an favor granting from order (Hawthorne), in plaintiffs D. connection with com Sonya Hawthorne Village operation of a plaint against prohibiting for the Village that: facility appeal, from her home.1 On contends day care busi Village’s zoning ordinance, which limits commercial in homes, exclusionary; is valid and not nesses exercising control over preempted by state law land-use Village’s stay denied the motion care. The circuit court in an motion pending appeal. The filed identical judgment 305(h) (134 Ill. 2d R. Supreme Court Rule appellate pursuant court following 305(h)); case.2 For the motion was taken with the deny the mo reasons, court and judgment we of the trial affirm stay. tion for brief, determination, filed an amici curiae making
1In we considered our following organizations: for by nonprofit Voices support plaintiff in Illinois, Robertson Children, Day The Carole Care Action Council Center, Business Learning, Development Women’s Human Center Project. Self-Employment Development Center The Women’s stay, states support of motion 2In its memorandum stay, filing as of the date it was Hawthorne that advised in her providing day to two children home. Hawthorne was
BACKGROUND following
The record reveals the relevant facts. Olympia is a municipality Fields non-home-rule located southern (Zon- County. zoning Cook has a comprehensive Ordinance) ing which permitted nonpermitted establishes uses property Village. occupa- within various districts “Home R-2, permitted R-l, tions” are districts defined as and R-3. Ordinance occupation” defines “home as follows: occupation any gainful occupation profession “Home means engaged occupant a dwelling unit as a use which is clearly dwelling incidental to the use of the unit for residential purposes. The occupation’ wholly ‘home shall be carried on within building the principal building thereto, accessory within only by family members of the occupying premises ***. There shall no display, sign be exterior exterior except no as allowed sign regulations for the district in such ‘home occupa- located, storage materials, tion’ is no exterior no other exterior indication of the ‘home occupation,’or variation from the residen- tial principal noise, character of the building, and no vi- offensive bration, smoke, dust, odors, glare heat or shall produced. be Of- fices,climes, offices,hospitals, barbershops, beauty parlors, doctors’ shops, millinery tearooms," homes, shops, restaurants, dress tourist hospitals kennels, animal among shall things, not be Code, be occupations.” deemed to Olympia Municipal Fields *3 (Ord. 22-187, 1981). §§ 22-207, 22-227 May No. as revised (West 1998)) The Child Care Act of 1969 ILCS et seq. 10/1 (the Act), adopted Care Act or legislature was the Illinois prior to Constitution, the effective date of the 1970 which established the distinction between home rule and non-home-rule units local government. Act, Under section “Day 2.18 of care homes” are family defined as maximum homes which 3 up receive more than to (West 12of children for less per day. than hours ILCS 10/2.18 1998). day may A any care home day receive children at time of the night long as as the stay of the child is less than consecutive hours. dayA operated facility” home cannot be as a “child care without permit license or Department issued the Illinois of Children and (DCFS). Family Services comprised Child Care Act of many Section 7 sets sections.
forth the minimum licensing standards for facilities and the may prescribe substantive areas where the DCFS standards. 225 ILCS (West 1998). specifically The authorized are standards restricted 10/7 areas, to 15 enumerated none authorizes the DCFS to zoning authority. non-home-rule The DCFS is restricted and 7(a)(5) mandated prescribe subsection to standards for: safety, general adequacy appropriateness, “The cleanliness and prevention fire premises, including adequate maintenance conforming municipal and health standards to State laws codes physical comfort, well-being care and of children provide to for the 10/7(a)(5) (West received[.]” ILCS municipal comply with require day The DCFS must care homes codes, exempt day fire care homes building safety but does zoning requirements. promulgated regulations “Licensing entitled Standards DCFS Act. Day pursuant Homes” to section 3 the Child Care for seq. provides § that an Ill. Adm. Code 406 et Section 406.13 any may up eight care for children without assis owner “alone” assistant, employs If owner an the owner and the assistant tant. age 12. 406.12 may up care for to 12 children under the Section may premises on the for more than 12 provides that children remain period parent’s employment 24-hour if the schedule hours § Adm. 406.12 requires more than hours of care. Code 406.8(k), provide home must out Under section Ill. Adm. yard area as the of the home. 89 Code play door such 406.8(k) (1998). § operate
The DCFS a license to Hawthorne to issued residence, through and valid home in her effective October to care for children October 2002. The license allowed Hawthorne ages years old. Late Hawthorne from the 6 weeks to accom- her residence to application made an remodel 16, 1999, Village By letter dated December modate her business. Clumpner3 proposed Hawthorne that her Mary advised administrator “home not fall within the definition of operation of a care home did Zoning Ordinance. letter stated Haw- occupation” under the work at Hawthorne’s res- proposal employee to have another thorne’s parents Ordinance; drop- to the idence did not conform an exterior many as 14 children would be ping picking up off and kitchen for occupation; and that a second indication of character of change the residential purposes would backyard an out- addition, use of the building. principal the Zon- contrary requirements play door area would also be ing Ordinance. petition filed a vari- January 5,
On *4 First, requested a ance, Hawthorne forms of relief. requesting two occupa- as home day care home variance to allow the Village Mary Clumpner is not the current 3Defendant notes administrator. Second, requested nonfamily
tion. Hawthorne variance allow a facility. January 24, at On the employee member to work the public hearing on the variance board of trustees conducted a A concerns relative to the requests. expressed number residents public hearing. particular, they at were concerned with proposal the traffic, disruption tranquility, employ- the increase in the Following hearing, presi- ment of in the home. the nonresidents requests dent and board of trustees denied Hawthorne’s for the vari- ances. injunc filed a complaint declaratory verified Subsequently, complaint
tive relief. al eight-count Hawthorne filed (1) leging: arbitrarily, capriciously unreasonably the acted misinterpreted Zoning determining when the Ordinance in (2) residences; occupation” permitted is not a “home Village is power wholly without lawful exclude home care from (3) Village; implementing regula Child Care Act and the DCFS tions the inconsistent regulation prohibition of home 5) municipalities; non-home-rule Hawthorne’s state species property license is a protection by entitled to the fifth amend, (U.S. v) amendment Const., United States Constitution (Ill. I, and article section Illinois Constitution Const. I, § 15), Village’s art. and the in allegedly prohibiting conduct her from deriving “any enjoyment” use of of the license is an unconstitu taking; Hawthorne, tional treated as a provider, differently persons engaged similarly situated home occupations basis, thereby without denying equal rational her protection of I, the laws under article section the Illinois Constitution (I I, 2);§ Village’s Const. art. interpretation of ll. (non-home-rule its ordinance violates Rule municipali Dillon’s may only powers granted ties exercise by law or the Illinois Consti (see 7)), VII, § tution art. deprives Const. and therefore Haw process law; thorne of her property without due she is similarly deprived process of due under fourteenth amendment (U.S. XIV). Const., the United States Constitution amend. summary judgment
Hawthorne filed a motion for on partial counts I through V her complaint, amended filed a cross- partial summary through motion for II judgment on counts V At a hearing cross-motions, on Hawthorne conceded that misinterpret did not defining occupa- Ordinance in “home tion,” and the trial court dismissed I moot. count 11, 2000,
On gave December the trial an oral court decision requested cross-motions and up that counsel order draw written reflecting its decision. On December trial court entered a *5 order, language pursuant to Illinois
written but failed include 304(a) (134 304(a)). 17, January Ill. R. On Supreme Court Rule 2d 2001, making prelimi the trial court entered a final written order the 304(a) injunction adding language. Rule nary permanent the final summary judgment The order in favor Hawthorne granted II, Zoning Ordinance constitutes exclusion- finding count summary granted The ary zoning and is null and void. trial court (1) III, the judgment finding: in on count part in favor Hawthorne preempted by Village, entity, partially is the as a non-home-rule regulating day homes the Care Act and DCFS any otherwise; extent that Zoning under Ordinance or the the regula- Village with Act and the DCFS ordinance of conflicts void; Village permanently it null is preempted tions is Ordinance, Zoning regulating day under the enjoined from care homes otherwise, any in a Act or the way or manner that conflicts with operate day regulations; DCFS and Hawthorne is entitled to Village at to her DCFS license. pursuant her residence January order on Village timely filed notice of appeal 29, 2001.
OPINION Village the trial court erred
Initially, contends that Ordinance, prohibits or limits Zoning which determining that the homes, Village this case exclusionary. frames care business impression. one of first as municipal of a case the construction
This involves novo, interpre de as the and a statute. Our standard review is state Avenue is a of law. North question tation of ordinances and statutes App. 312 Ill. 3d Appeals, Properties, L.L.C. v. Board of (2000). N.E.2d 65 right, non-home- contends that has of businesses out of homes regulate municipality,
rule
Rule, a non-home-rule
Under Dillon’s
police power.
under
powers
specifically
that are
conferred
municipality only possesses those
Ryan
rel.
People
statute.
ex
by the Illinois Constitution
(1999).4
To that
Park,
Ill.
incorporating
towns
persons
to all
upon the
conditions
purpose
be available
same
should
local
persons in one
situation;
requirements
the law for
the same
similarly situ-
requirements
persons
ity
from the
should not be different
“[M]unicipalities
possess only
powers expressly granted,
those
powers indispens
powers
expressly granted,
to those
incident
accomplishment
objects
purposes
able to the
the declared
Policy
municipal corporation.”
Pesticide Public
Foundation v.
(1987).
of Wauconda,
2d
“(3) regulate intensity areas, to and limit the of the of lot use and regulate to open spaces, and determine the area of within and sur- (4) rounding buildings; classify, regulate such to and restrict the lo- cation of buildings trades industries and the location of designed industrial, specified business, residential, for uses; to municipality divide the entire into districts such number, area, shape, and of such (according different classes to use buildings, of land and height and bulk of buildings, intensity of the area, classification) use of lot open spaces, area of may or other as carry be deemed 13; best suited to out purposes of this Division fix standards to or buildings structures shall therein conform; uses, prohibit buildings, [and] incompat- or structures locality. People ated another Hoeinghaus 557, ex rel. Campbell, v. (1918). Constitution, 121 N.E.183 Until villages had 1970 cities and no powers inherent legally and could not expressly act matter unless or impliedly See, authorized e.g., City Chicago, state statute. Ives v. 582, 2d 198 N.E.2d “legislative supremacy,” 518 Under this rule of statutory grants power narrowly were construed in accordance with so- general called undisputed “Dillon’s Rule”: “It is a proposition of law that municipal corporation possesses a following powers, and can exercise the First, words; granted express second, necessarily no others: those those fairly implied in third, powers expressly granted; incident to the those es accomplishment objects sential to purposes of the declared of the corporation, convenient, simply Any fair, indispensable. reasonable, but —not concerning substantial doubt power the existence of is resolved the courts omitted.) against corporation, power (Emphasis and the 1 denied.” Dil (5th 1911). Municipal Corporations 237, § lon at 448-50 ed.
ible with the character of such districts.” 65 ILCS 5/11—13—1 (West 1998). initially insuring neighborhood’s argues “resi land “ad tranquility” permissible goal project dential is a use Boraas, See, Terre e.g., Village needs.” Belle v. family dressed (1974); Singer 39 Ed. 2d 94 S. Ct. v. U.S. L. Park, N.E.2d 585 City Highland authority jurisdiction, Illinois’ explains, citing outside of permit regulating occupations home is to underlying that the intent of “customary preserving the occupations,” while Thus, given to such of residential areas. consideration is ele character traffic, display signs, as amount street use of ments percentage and the of floor parked number cars at residence Huntsville, 416 space occupied by So. business. DeShazo (Ala. Board Crim. App. Schofield Jersey A.2d 357 a New Adjustment, Super. 169 N.J. from 12 18 chil of a care center for court held that the conduct occupation in a did not a home within dren residence constitute primarily to one- ordinance in a zone restricted provisions There, rejected argument the court two-family dwellings. analogous baby care center was plaintiffs made sitting: ‘babysitting’ regarded occupa be as a home
“Assuming that
could
tion,
activity
customarily comprehend the simultane
does not
respect
time.
And
[Citations.]
ous care
12 to 18 children at a
clearly
occupation
be
incidental
requirement
to the
residence,
building
appears perfectly
obvi
square feet of the total
ous that this was not so when 1561
Schofield,
***.”
building
purposes
in the
was used
154-55,
at
App.
counseling
to
individual social
ses
up
her home to conduct
five
per week
two
sessions with nine individuals
per
group
week and
sions
counseling.
overnight
This court held
weekend
and occasional
“a
ordinances
is to accommodate
occupations
of
purpose
occupations
certain
recognized
practicing
custom of
traditional
found that while
App. 3d at 228. The court
within the home.” 85 Ill.
(similar
attorney
an
occupation
to
counseling
customary
was a
use is not conducive
minister),
nonresidential
intensity
[the]
or
“the
of
neighborhood
of
of
residential character
to
maintenance
228.
App.
at
use.” 85 Ill.
3d
to
and is not incidental
authority outside of Illinois’
on
argues,
further
based
jurisdiction,
against nonfamily
working
that the limitation
members
City
also
Manassus v.
home-occupation facility
is
reasonable.
of
dismissed,
Rosson,
12,
459 U.S.
appeal
Va.
Our
exclusionary zoning
court invalidated an
ordinance
in People
Skokie,
ex. rel. The Trust
Chicago Village
Co.
There,
concrete 665); excluding trailer Ready-Mix Corp., Ill. 2d 185 N.E.2d Park, Aurora, parks (High Meadows Inc. coach (1969)); prohibiting shelter care 2d 250 N.E.2d (Hazel City Chicago, Hotel Corp. homes 415, Wilson (Dol (1974)); off-premise signs prohibiting 308 N.E.2d son, Ill. App. 360 N.E.2d provide responds Zoning that does not Village The the Ordinance day facilities, only day but a “home prohibition against care a blanket Thus, Village argues, unlike in a district. the facility” above, exclusionary. not Zoning cases cited Ordinance is However, Assembly recognize DCFS both and the General facility kind of child care from the “day care home” as a distinct center,” parents determined that “day care and the State of has day form of “day have care home” an alternative are entitled to definition, care,” by only can be day care for their children. “Home in a residence. provided recognizes State of Illinois
The trial court found that: other facilities for the a form of child care distinct from care homes as care; State, through the Child Care Act of child provision day care as a regulations, recognizes home implementing the DCFS public activity per se inimical to the legitimate that is lawful health, welfare; Zoning effect Ordinance is safety Village. in the care homes prohibit day care is not a Zoning Ordinance excludes homes Whether the this Village would have court question of semantics as the mere above, a exists between “home explained As distinction believe. center,” by both state law and “day as evidenced care” controlling authority no regulations. provided has state but, rather, jurisdictions. from other position case law support the Zon- correctly find court found that we that trial On basis operates completely exclude valid improperly ing Ordinance business home. erred in determin-
Next, that the trial court contends partially preempted Village, entity, ing that the as non-home-rule promulgated the DCFS Act of 1969 and by the Child Care day care homes under regulating thereunder Ordinance. preemptive Act is not a Child Care contends because the Village argues
enabling statute. authorization Compiled of the Illinois chapter is codified in Care Act it is a business Statutes, Occupations,” “Professions and entitled concurrently with licensing operating statute regulation and regulating of the statutes argues law. none chapter professions preempt municipalities under occupations zoning regulations over the location of such busi- exercising their that, Act, under one argues nesses. The further the Child operates facility a child care a valid license or violates who without subject punishable of the Act is business offense provision *9 (West 1998). 10/11, up $10,000 per day. a of to ILCS fine 225 18 Village explains the Child Care Act became effec- when 1969, in tive in the Illinois effect. 1970 Constitution was not Home powers rule did exist the of regulations exempting City not Chicago Thus, in by way population were effectuated carve-out. 1969, municipal authority occupations, including regulate to facilities, ingrained was in local as ordinances the well as case frames the to law. issue this court whether, 1969, in Assembly the General intended to all divest municipalities state, including Chicago, authority this to regulate, prohibit limit or particular business as “home occupa- tion” residential zones. The nothing states that there is expressly implicitly prohibiting Act either municipali- ties from enforcing their ordinance over facilities.
Hawthorne responds by citing
Policy
Pesticide Public
Foundation
Village Wauconda,
107,
There,
117 Ill. 2d
“Taken in
regulating
pesticides
statutes
address
use, distribution,
labeling,
purchase, registration
application
pesticides,
limiting
pesticides
addition to
the harmful
effects
short,
present
environment.
the acts
a broad and detailed
designed regulate
scheme
pesticide
respects.
the field of
all
Although
Act,
Act,
together
Pesticide
with the Pest Control
has
pesticides among
divided its
over
expansive authority
three enti
ties,
agencies
all
are
government; notably
of them
State
absent
any provision
authority to,
allowing
from the
delegating
acts is
regulation by,
government. (Cf.
Liquor
units of local
Illinois
Control
(broad
Com.v.
delegations
Joliet
3d power
legislative
throughout act
showed
desire
allow local
control).)
apparent
Assembly
It is
acts that
General
exclusively
pesticide
occupy
has
field of
intended
State
Pesticide,
Ill. 2d at
regulation.”
116.
Ill. 2d
City Rockford,
further cites O’Connor v.
(Ill.
(1972) (Illinois
Stat.
Board);
only
Pollution
upon
of landfills
issuance of the Illinois
Control
Knox,
Smelting
Refining
County
&
Co. v.
American
(1974) (Knox
not create
lage of Advertising held the Illinois Control Act of Highway the court (West 1992)) regula seq. et did ILCS 440/1 advertising The T&S municipality. outdoor a non-home-rule tion of preemption cases cited distinguished court its case Signs *10 Advertising by finding Highway that section of the regulations specifically municipality Act authorizes a enact Control that, pro advertising in the absence of such concerning outdoor and vision, authority regulate in this field “a non-home-rule unit’s 3d questionable.” Signs, App. at 1091. would be T&S The present from case. Child Signs distinguishable T&S is regulating comprehensive regulatory fully scheme Care Act enacts a Illinois, similar preempt to the statutes aspects all addition, in the cases cited above. ing zoning ordinances DCFS, with the charges agency, one state only Child Care Act licensing oversight care facili administration, regulation, Thus, is that the State be legislature in Illinois. the intent of ties The Care Act Illinois. regulator the exclusive child County, Cook case filed in the circuit court of 5Hawthorne also cites similar Flossmoor, Village Judge non- Foreman ruled that wherein Lester preempted by the Child Care Act and the entity, home-rule was by regulating day under similar promulgated DCFS from care homes (Cir. Flossmoor, Ct. Village No. 95 CH 3485 zoning ordinance. Rheams appeal did not County, of Flossmoor Oct. Cook ruling. regulation mere statute.6 interpreted cannot be as a business cases, in the found to non- statutes cited above which were ordinances, Il- zoning chapter also fall under 225 of the home-rule Compiled Statutes. linois
Here, “partially” the trial court concluded By preempted regulating partially, care homes. the trial in a Village may court explained regulate homes manner Care Act DCFS way conflicts with the Child or the regulations. finding The trial on court’s is consistent with the law preemption zoning by relates to enacted non-home- ordinances units, rule as described above. above,
For the reasons cited judgment we therefore affirm the trial court.
Affirmed. J.,
REID, concurs. QUINN, specially concurring part dissenting JUSTICE part:
I in part concur in part. majority correctly *11 961, 964, 394 N.E.2d Village argues
The “may impose rigorous an ordinance more or regulations definite in addition to those enacted the state great
6The amici brief
sets forth
detail the distinction
rules
between
regulations
care centers and
care homes.
they
do not
with the
legislature
long
so
as
conflict
statute.”
Hutton,
App.
“Home means occupant dwelling clearly of a unit as a use which is incidental purposes. ‘home dwelling the use of the unit for oc- to residential building wholly principal shall carried on within cupation’ be thereto, only by of the fam- building accessory within a members occupying premises Olympia Municipal ***.” Fields Code ily (Ord. May §§ 22—227 No. revised 22— 22— (West 1998)) The Child Act of 1969 ILCS 10/2.18 provides: family
“§ receive ‘Day 2.18. care homes’ means homes which than 24 up more than to a maximum of children less hours day. family’s natural or per The number counted includes 12. age all under the adopted persons children and only include receive children term does not facilities which single household.” zoning vari- application for a
315 home to the limiting operations day of a DCFS-licensed care tions day operator’s building portion property. care home Village’s essence of the home argues, “Since these restrictions are the ordinance, occupation effectively circuit court held was day right- preempted regulating pursuant from care totally authority.” ful holding finding “[t]he
In trial court’s is consistent with the preemption zoning it enacted law on relates ordinances non- 313) App. majority home rule units” Ill. 3d at also treats the agree of While I preemption. issue before us as one that this is the is sue, disagree majority’s holding I Care Act has with preempted day an a regulation field of to such extent municipality zoning it by cannot affect limitations. out, Act, the majority points “[t]he
As under the Child au areas, thorized are specifically standards restricted to 15 enumerated none of which preempt zoning authorizes DCFS to non-home-rule *** authority. require comply The DCFS must care homes to with codes, municipal building and fire but safety exempt day does not zoning requirements.” homes other 3d at 303-04. Similarly, the Village cogently argues that in County decision of Page Elliott, Du v. Ill. App. (1980), 85 406 592 ap N.E.2d propriately set determining particular the standard for a whether clearly “is dwelling incidental use of the unit for residential purposes.” There, this court held of a intensity the use of for counseling per five individual group sessions week two per plus sessions with nine individuals week weekend sessions for of groups people year 15 approximately 10 times was not conducive neighborhood to the maintenance of residential character of a therefore was not incidental to use. jurisdictions. also cites several In cases other Board Adjustment, Super. 169 N.J. Schofield (1979),
A.2d 357
the court held that
center
providing
day care
children
occupation”
radically
did not constitute a
as it is
“home
from “babysitting”
different
and such use was not incidental
to resi-
dential use. In
Harsch,
Board
Commissioners v.
78 Pa. Commw.
(1983),
tion in the in residential districts immediate dwell- health, ing saftey related to the substantially promotion public was and welfare. impression preemp in Illinois. The
This is a case of first
issue
Act has never been
tion of local
the Child Care
legislative
an
There
also no
upon by
ruled
Illinois court of review.
lack
history
interpreting
available to assist
Act. Because
authority,
proper
this court to
out-of-state
of Illinois
it is
consider
“Comparable
authority addressing the same
court decisions
issue.
before
jurisdictions,
while
determinative
issues
court,
authority
respect.”
and entitled to
re Mar
persuasive
are
Raski,
riage
It is
N.E.2d
on point
well settled that
the absence
an Illinois determination
*13
law,
jurisdictions
of
the courts
this state
look to other
of
will
Hinrichs,
v.
preemption, we should (Minn. Earth, County Blue N.W.2d Park Procedures four-part test for 1997), Appeals articulated the Minnesota Court statutory “occupies so the field” as regulation determining whether a (1) subject matter zoning authority: What is the preempt municipal subject fully been covered Has the matter so being regulated? concern? Has solely a matter state state law as have become subject matter indicated that partially regulating legislature subject Is the matter itself solely concern? is a matter of state unreasonably have adverse regulation an such nature that local would general public? upon effect agree
I the Village could not exclude all care homes from areas, I but do not believe that in question ordinance does that. While I do not believe that the ordinance rises to the level of exclusionary zoning, I do portions believe that of it do conflict with the Child holding Care Act. Based on the in Village Wauconda Hutton, I would resolve these conflicts as follows.
(1) As limiting to the ordinance’s operations restriction of a DCFS- licensed day care home the building portion care home operator’s property, this directly conflicts with DCFS’ requirement 406.8(k) section that such provide a home play outdoor area. While neighbors may complain indeed about the noise made children at play, type activity this is incidental to the use of the home as a resi- dential property and it therefore cannot be prohibited by ordinance.
(2) The ordinance’s prohibiting restriction nonfamily members being employed to work in the home is rational and is substan- tially promotion related to the public health, safety and welfare for reasons cited in Rosson, Manassas v. 224 Va. 294 S.E.2d 799. It is therefore enforceable.
(3) As to allegation places restric- tions on the number of children may who be cared home, face, on its the ordinance does not restrict the number of chil- dren may who be cared care home. The Child Care Act requires a person second to assist in the supervision of more than eight children. If qualified no family member is available to fill po- sition, it is the Child Care Act require which would there be a *14 limit eight present children in the home.
For the
reasons,
above
I
part
concur in
and dissent in part from
majority’s
opinion.
dissent
notes
that,
municipality,
as a non-home-rule
Olympia
possesses only
Fields
powers
those
which
specifically
are
conferred
Illinois Constitu
tion or
People
Ryan
statute.
rel.
Park,
ex
Hanover
Notes
notes Hawthorne’s provide up care for stated that wished to use her home ance she “day not be under the definition of 14 children. This would allowed be allow trial court’s cannot read to more care homes” and the order 12 children than in the home. being “family care homes.” As “day The Act homes” as defines areas, agree I are homes” definition located “family ordinance that the could not majority with I note at “day homes” from its residential areas. preclude attempted do so. The Vil- Village denied that it argument oral conflict between lage urges us to focus on actual and the Child Care Act. municipality’s specifically The trial court held regulations included: the Act and the DCFS conflicted with in a may be cared for of children who the number restrictions nonfamily members home; on the employment restrictions home; children restric- in a in the care of to assist