{ "id": 1096623, "name": "THE VILLAGE OF PLAINFIELD, Plaintiff-Appellant, v. AMERICAN CEDAR DESIGNS, INC., Defendant-Appellee", "name_abbreviation": "Village of Plainfield v. American Cedar Designs, Inc.", "decision_date": "2000-11-20", "docket_number": "No. 3-99-0305", "first_page": "130", "last_page": "142", "citations": [ { "type": "official", "cite": "316 Ill. App. 3d 130" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "396 N.E.2d 617", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1979, "pin_cites": [ { "page": "625" } ], "opinion_index": 0 }, { "cite": "77 Ill. App. 3d 835", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3291243 ], "year": 1979, "pin_cites": [ { "page": "845" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/77/0835-01" ] }, { "cite": "586 N.E.2d 1211", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "pin_cites": [ { "page": "1215-216" } ], "opinion_index": 0 }, { "cite": "146 Ill. 2d 263", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5597010 ], "year": 1992, "pin_cites": [ { "page": "273" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/146/0263-01" ] }, { "cite": "682 N.E.2d 118", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "pin_cites": [ { "page": "124" } ], "opinion_index": 0 }, { "cite": "289 Ill. App. 3d 171", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 351003 ], "year": 1997, "pin_cites": [ { "page": "179" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/289/0171-01" ] }, { "cite": "706 N.E.2d 990", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "pin_cites": [ { "page": "1001" } ], "opinion_index": 0 }, { "cite": "302 Ill. App. 3d 916", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1352881 ], "year": 1998, "pin_cites": [ { "page": "929" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/302/0916-01" ] }, { "cite": "595 N.E.2d 570", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1992, "pin_cites": [ { "page": "579" }, { "page": "579" } ], "opinion_index": 0 }, { "cite": "230 Ill. App. 3d 472", "category": "reporters:state", "reporter": "Ill. 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App. 2d", "case_ids": [ 2453391, 2451935 ], "weight": 2, "year": 1963, "pin_cites": [ { "page": "383" }, { "page": "384-85" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/41/0378-02", "/ill-app-2d/41/0378-01" ] }, { "cite": "605 N.E.2d 727", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1992, "pin_cites": [ { "page": "735" }, { "page": "735-35" } ], "opinion_index": 0 }, { "cite": "238 Ill. App. 3d 944", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5156807 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "956" }, { "page": "955" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/238/0944-01" ] }, { "cite": "304 N.E.2d 460", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1973, "pin_cites": [ { "page": "463" } ], "opinion_index": 0 }, { "cite": "15 Ill. App. 3d 424", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2461477 ], "year": 1973, "pin_cites": [ { "page": "428" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/15/0424-01" ] }, { "cite": "631 N.E.2d 358", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "pin_cites": [ { "page": "364" } ], "opinion_index": 0 }, { "cite": "259 Ill. App. 3d 713", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2869860 ], "year": 1994, "pin_cites": [ { "page": "720" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/259/0713-01" ] }, { "cite": "710 N.E.2d 849", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1999, "pin_cites": [ { "page": "854" } ], "opinion_index": 0 }, { "cite": "304 Ill. App. 3d 586", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 5164130 ], "year": 1992, "pin_cites": [ { "page": "211" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/237/0208-01" ] }, { "cite": "647 N.E.2d 273", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 5, "year": 1995, "pin_cites": [ { "page": "276" }, { "page": "276" }, { "page": "276" }, { "page": "276-77" }, { "page": "277" } ], "opinion_index": 1 }, { "cite": "164 Ill. 2d 207", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 477000 ], "weight": 5, "year": 1995, "pin_cites": [ { "page": "213" }, { "page": "213" }, { "page": "214" }, { "page": "214-15" }, { "page": "214" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/164/0207-01" ] }, { "cite": "377 N.E.2d 21", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "pin_cites": [ { "page": "24" } ], "opinion_index": 1 }, { "cite": "71 Ill. 2d 510", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5449192 ], "year": 1978, "pin_cites": [ { "page": "516-17" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/71/0510-01" ] }, { "cite": "594 N.E.2d 778", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "pin_cites": [ { "page": "780" } ], "opinion_index": 1 }, { "cite": "229 Ill. App. 3d 1016", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5217197 ], "year": 1992, "pin_cites": [ { "page": "1017" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/229/1016-01" ] } ], "analysis": { "cardinality": 1081, "char_count": 28470, "ocr_confidence": 0.75, "pagerank": { "raw": 7.512974257815984e-08, "percentile": 0.44683203538121335 }, "sha256": "05854e0cb6c81dfe68dfe59f5af1cf2a50bb4f3968066a91451320e1c348595f", "simhash": "1:0bc89288b79c2d43", "word_count": 4629 }, "last_updated": "2023-07-14T16:10:00.608787+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE VILLAGE OF PLAINFIELD, Plaintiff-Appellant, v. AMERICAN CEDAR DESIGNS, INC., Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE HOMER\ndelivered the opinion of the court:\nThe Village of Plainfield (village) filed a four-count complaint against American Cedar Designs (American), alleging that American was in violation of certain village ordinances. The trial court found the evidence insufficient on all but one count of the complaint, and the village appealed. We must determine whether the trial court erred in: (1) finding that American\u2019s use of its property did not violate the flood control ordinance as alleged in count I, because it was a permitted nonconforming prior use; (2) finding American\u2019s use of the property did not violate the zoning ordinance as alleged in count II, because it was a legal nonconforming use; (3) finding the evidence was insufficient to determine the extent to which American had expanded the storage use of its property as alleged in count II; (4) barring the village engineer\u2019s opinion testimony; and (5) denying the village\u2019s motion to amend its complaint. After our careful review, we affirm in part and reverse in part.\nFACTS\nThe property at issue is an 11-acre parcel located in the village within the regulatory floodway of the Du Page River. At all times relevant, the property was zoned for single-family residential use. Over the years, however, the property had been utilized for nonresidential uses, including, during some period prior to 1981, the operation of a roller-skating rink in the \u201ccarousel building\u201d located on the property.\nFrom 1981 until 1989, the property was leased by Robert Dumber, who operated a pallet-making business. His company constructed wooden pallets in the carousel building and stored raw materials on the east and south sides of the building. He ceased using the property by April 30, 1989.\nAmerican purchased the property for its cedar fence manufacturing operation on May 9, 1990. Thomas Keefe, the vice-president of American, testified that he first saw the property a year before the purchase and believed it to be a lumber yard. He inquired about the property\u2019s zoning status in early 1990. At that time, Peter Waldock was the village planner. Waldock told Keefe that, although the property was zoned residential, American would be permitted to continue the industrial/manufacturing use within the confines of the building or enclosed from view off the premises. Keefe testified that after American purchased the property, it began manufacturing fencing in the carousel building and storing the product outside the building.\nA tornado destroyed the carousel building in August 1990. At that time, the village informed American that the Federal Emergency Management Agency (FEMA) flood plain maps and village flood control ordinances prohibited American from reconstructing the building, but that American could apply to the village for rezoning and to FEMA for a map amendment. American did neither.\nInstead, American requested a permit from the Illinois Department of Transportation (IDOT) to build a small storage shed and sunscreen structure on the property. IDOT granted the permit on the conditions that: (1) American remove the shed within two years from the permit date, (2) the sunscreen structure be built without walls, and (3) the structure be uninhabitable. The permit required American to remove the shed on or before March 28, 1991, but American did not do so. American continued its fence-building operations on the property in the open, storing its raw materials and fence panels in the open as well.\nIn July 1996, substantial rainstorms flooded the Du Page River. Bundles of American\u2019s fencing, ranging in size from four feet by five feet to five feet by eight feet and weighing up to 500 pounds each, floated off the property and as far as five miles downriver. Four bundles floated into the village\u2019s sewer treatment facility property and some bundles may have floated onto property across the river from American.\nThereafter, Waldock, who had become the village\u2019s development and zoning director, notified American that its property use violated the village\u2019s flood control and zoning ordinances. The village advised American that all materials stored within the floodway had to be removed within 90 days after receipt of the notice. Because of American\u2019s failure to comply with repeated requests for compliance, the village filed its four-count complaint against American in November 1997.\nIn count I, the village alleged that American violated section 2.2 \u2014 7 of the flood control ordinance (Code of Ordinances of the Village of Plainfield ch. 2, \u00a7 2.7 \u2014 7 (June 17, 1991)), by placing and storing fence-making materials and motor vehicles within the designated floodway of the Du Page River.\nIn count II, the village asserted that American violated section 3 of ordinance 674, which prohibits the establishment or expansion of \u201copen storage of building materials and equipment\u201d in residential districts. Code of Ordinances of the Village of Plainfield No. 674, \u00a7 3 (March 18, 1968). The village contended that American violated this provision by storing material and equipment in the open and conducting manufacturing activities without a building enclosure.\nCount III contained allegations that American violated section 9 of ordinance 674, which prohibits the expansion of nonconforming land uses. Code of Ordinances of the Village of Plainfield No. 674, \u00a7 9 (March 18, 1968). The village asserted that American expanded its nonconforming industrial use by increasing its open storage of materials and equipment and expanding its manufacturing activities without enclosure by building.\nFinally, the village alleged in count IV that American\u2019s activities constituted a nuisance under the village ordinances. Code of Ordinances of the Village of Plainfield ch. 6, \u00a7\u00a7 6 \u2014 97, 6 \u2014 98.\nThe matter proceeded to a bench trial. After hearing the evidence, the trial judge found insufficient evidence to demonstrate the violations alleged in counts I, II, and IV of the complaint, but ruled in the village\u2019s favor on count III.\nRegarding counts I and II, the trial judge determined that the industrial/manufacturing use was \u201cgrandfathered in\u201d as a legal nonconforming prior use of the property. With respect to the expansion of its storage use as alleged in count II, the trial judge concluded that, from the evidence, he could not determine whether or to what extent American had expanded its open storage of building materials and equipment on the property. Therefore, the trial judge ruled in favor of American on counts I and II.\nRegarding the expansion of the manufacturing activities alleged in count III, however, the trial court concluded that American had expanded its manufacturing use. The trial court determined that manufacturing in the open was not \u201cgrandfathered in\u201d as a prior nonconforming use; therefore, American violated ordinance 674, section 9, by manufacturing its fences outdoors. American was fined $2,000 for this violation.\nThe village subsequently filed a motion to amend the complaint to conform to the proofs (735 ILCS 5/2 \u2014 616 (West 1998)). Specifically, the village sought to amend count I to allege that the violation began May 15, 1990, rather than July 18, 1997, and to amend counts II and III to reflect a violation of the zoning ordinance in effect at the time of the violation rather than at the time of the purchase of the property. The trial judge denied the motion, and the village appeals.\nANALYSIS\nI. Ordinance Violations\nAlthough a village\u2019s enforcement of an ordinance is quasi-criminal in nature, it is tried and reviewed as a civil proceeding. Village of Kildeer v. LaRocco, 237 Ill. App. 3d 208, 211, 603 N.E.2d 141, 143 (1992). In such cases, the village has the burden of proving a violation of an ordinance by a clear preponderance of the evidence. City of Peona v. Heim, 229 Ill. App. 3d 1016, 1017, 594 N.E.2d 778, 780 (1992).\nOn review, a trial court\u2019s factual determinations regarding such violations will not be reversed unless they are contrary to the manifest weight of the evidence. County of Kankakee v. Anthony, 304 Ill. App. 3d 1040, 1048, 710 N.E.2d 1242, 1248 (1999). However, this court need not defer to the decisions of the trial court on questions of law, such as the interpretation of an ordinance. Monahan v. Village of Hinsdale, 210 Ill. App. 3d 985, 993, 569 N.E.2d 1182, 1188 (1991). When faced with an issue presenting a mixed question of law and fact, we must consider the matter according to the clearly erroneous standard of review. Zeitz v. Village of Glenview, 304 Ill. App. 3d 586, 592, 710 N.E.2d 849, 854 (1999).\nA. Section 2.7 \u2014 7 of the flood control ordinance (count I)\nThe village contends that the trial court erred, as a matter of law, in concluding that American\u2019s manufacturing and storage uses of the property were \u201cgrandfathered in\u201d as permitted nonconforming uses under section 2.7 \u2014 7 of the flood control ordinance. The village asserts that American\u2019s activity was not an \u201cappropriate use\u201d as defined in section 2.7 \u2014 7(c). Furthermore, because section 2.7 \u2014 7 makes no express exception for prior nonconforming uses, the village maintains that American must be strictly held to the restrictions set forth in the provision. The village explains that it is obligated to prohibit American\u2019s improper use of its property in order to maintain eligibility for the national flood insurance program, minimize losses and conform to state regulation of floodways.\nSection 2.7 \u2014 7(c) provides that the only developments in a flood-way that will be allowed are \u201cappropriate uses\u201d as defined in that provision and the relevant provisions of the Illinois Administrative Code. See Code of Ordinances of the Village of Plainfield ch. 2, \u00a7 2.7 \u2014 7(c) (June 17, 1991); 92 111. Adm. Code \u00a7 708.70 (1994) (recodified at 17 Ill. Adm. Code \u00a7 3708.70 (1999)). It is undisputed that American\u2019s use of its property does not conform to the requirements of section 2.7 \u2014 7 since the storage of materials does not fall within the definition of an \u201cappropriate use.\u201d Therefore, we must determine whether American\u2019s use is a legal nonconforming use.\nA legal nonconforming use is a nonpermitted use of property under currently applicable zoning ordinances which predates the applicable zoning ordinance and is legalized on that basis. Littlejohn v. City of North Chicago, 259 Ill. App. 3d 713, 720, 631 N.E.2d 358, 364 (1994). A municipality may enact reasonable regulations to restrict any extension or expansion of a nonconforming use. Cities Service Oil Co. v. Village of Oak Brook, 15 Ill. App. 3d 424, 428, 304 N.E.2d 460, 463 (1973). However, an ordinance is invalid if it unreasonably or arbitrarily deprives a landowner of his property right to a nonconforming use. Smith v. Town of Normal, 238 Ill. App. 3d 944, 956, 605 N.E.2d 727, 735 (1992). Because zoning ordinances are presumed valid, any doubts as to the construction of a particular provision in an ordinance must be resolved in favor of an interpretation that supports its validity. Smith, 238 Ill. App. 3d at 955, 605 N.E.2d at 735-35.\nThere is no express language in section 2.7 \u2014 7 prohibiting or permitting the continuation of a prior nonconforming use. However, a plain reading of section 2.7 \u2014 7 indicates that its application is prospective because it only applies to uproposed development, redevelopment, site modification, or building modification within a regulatory flood-way.\u201d (Emphasis added.) Code of Ordinances of the Village of Plain-field, ch. 2, \u00a7 2.7 \u2014 7 (June 17, 1991). American\u2019s property use was not a proposed development because the prior owner had used the property for manufacturing and stored materials outdoors since 1981. The village was fully aware of this. In fact, Waldock testified that, before American purchased the property, he told American that \u201cthe previous industrial occupant would set the model for their use of the property.\u201d It was only after the 1996 flood that the village determined that American\u2019s use violated the ordinance.\nAfter our careful review, we determine that section 2.7 \u2014 7 of the flood control ordinance applies prospectively; consequently, the provision did not prohibit the continuation of the prior nonconforming use when American purchased the property. Therefore, we affirm the trial court\u2019s ruling on count I of the complaint.\nB. Nonconforming use under zoning ordinance 674 (count II)\nThe village also argues that the trial court erred in finding that American\u2019s manufacturing and storage uses of the property did not violate zoning ordinance 674 because they were \u201cgrandfathered in\u201d as legal nonconforming uses of the property.\nSection 3 of ordinance 674 provides, in pertinent part, that in residential districts \u201cno trade, business or industrial use or any of the following activities or uses shall hereafter be established or expanded: (1) open storage of building material and equipment.\u201d Code of Ordinances of the Village of Plainfield No. 674, \u00a7 3 (March 18, 1968). However, section 9 provides:\n\u201cAny use, building or structure lawfully existing on the effective date of this Ordinance, or at the time of an amendment hereto, or heretofore permitted or authorized which does not conform to the provisions of said ordinance, or amendment, shall be known as nonconforming. Such use, building or structure *** shall not be *** expanded, re-established if discontinued for one year or more, or rebuilt and continued in case of destruction to the extent of fifty (50%) percent or more.\u201d Code of Ordinances of the Village of Plain-field No. 674, \u00a7 9 (March 18, 1968).\nThe village contends that when American purchased the property in May 1990, the prior manufacturing use had been discontinued for over a year. Therefore, American was prohibited from reestablishing it. After our careful review, we disagree.\nTo constitute abandonment of a legal nonconforming use, it must appear that there is an intent to abandon the use and the mere cessation of the use will not, per se, result in a loss of the right to resume such a use. See McCoy v. City of Knoxville, 41 Ill. App. 2d 378, 383, 190 N.E.2d 622, 624-25 (1963). There must be evidence of voluntary conduct carrying the implication that the owner intended to abandon the use. See McCoy, 41 Ill. App. 2d at 384-85, 190 N.E.2d at 625-26. The facts of a particular case determine whether an owner is entitled to the protection of a legal nonconforming use. County of Du Page v. Elmhurst-Chicago Stone Co., 18 Ill. 2d 479, 484, 165 N.E.2d 310, 313 (1960).\nAfter our careful review of the record, we determine that there had been no abandonment or discontinuance of the prior legal nonconforming use when American commenced its operation in 1990. Although Bumber\u2019s pallet company had ceased operations by April 1989, just over a year prior to American\u2019s start-up, Bumber did not own the property and neither party presented any evidence of the owner\u2019s intent or actions other than his sale of the property to American. We have only the fact that the owner sold the property to another industrial user, American, and that American began its use barely one year after Bumber left the property.\nHowever, evidence was presented showing that American sought to purchase this property based upon its understanding of the prior industrial use and\u00b0 that the village knew of American\u2019s intent to continue that use. Keefe, American\u2019s vice-president, investigated the property\u2019s zoning status in early 1990. At that time, Waldock acknowledged the prior industrial/manufacturing use was a legal nonconforming use of the property and told Keefe that American would be permitted to continue that use.\nMoreover, after the 1990 tornado, IDOT issued a permit for construction of a shelter so that American could continue operating its fence-building business. The record shows that, even at that time, the village and American understood that the nonconforming use would continue and we discern no indication of abandonment of use.\nWe determine that the trial court\u2019s finding that American\u2019s manufacturing use of the property was permissible as a legal nonconforming use was supported by the record. Therefore, we affirm the trial court\u2019s ruling on that portion of count II of the complaint.\nC. Expansion of the storage use under ordinance 674 (count II)\nThe village argues that the trial court erred in determining that there was insufficient evidence to determine whether American had expanded its use of the property for. the open storage of building materials and equipment in violation of section 3 of ordinance 674, as alleged in count II of the complaint.\nAs previously stated, section 3 of ordinance 674 provides that the \u201copen storage of building material and equipment\u201d may not be \u201cestablished or expanded\u201d in a residential district. (Emphasis added.) Village of Plainfield Zoning Ordinances No. 674, \u00a7 3 (March 18, 1968). In denying the village relief regarding the alleged expansion of the storage use, the trial court concluded:\n\u201cHow much of the property was expanded or not expanded, the Court really cannot make that determination. You know, they have ongoing business. There\u2019s exhibits that show when they bought it, and prior to that, there were large stacks of lumber. And I imagine there were some days where there was a lot of lumber and some days maybe there was not so much lumber. But I\u2019m not in a position to say that the use changed and what guidelines to follow.\u201d\nAfter reviewing the record, we hold the trial court\u2019s finding to be contrary to the manifest weight of the evidence. During his testimony, Bumber illustrated the limited scope of his outdoor storage when he operated his pallet-making business on the property. He stated that he only stored raw materials on the east and south side perimeters of the carousel building and kept all pallets within the building. He acknowledged that he also stored some semi-trailers for his trucking business on the property. Keefe testified that he recalled that Bumber\u2019s outside storage was more expansive and that American\u2019s use was consistent with that prior use. However, Alan Persons, the village\u2019s superintendent of public works, testified that he had seen an increase in storage over the years that American had been using the property.\nMost significantly the aerial photographs taken in 1990, 1992, and 1995 illustrate the progressive expansion of the storage of materials on the property in question. The photographs show that, after the carousel building was destroyed by the tornado, American\u2019s open storage of building materials significantly expanded well beyond the boundaries of the prior use.\nBased upon the foregoing, we conclude that the trial court\u2019s determination that the village failed to prove American had expanded its open storage of materials and equipment on the property as alleged in count II was contrary to the manifest weight of the evidence. Therefore, we reverse that portion of the trial court\u2019s ruling and remand the cause for a determination of the appropriate relief for the violation alleged in count II of the complaint.\nII. Evidentiary Rulings\nA. Barring Hamilton\u2019s opinion testimony\nThe village argues that the trial court erred in barring Hamilton from giving opinion testimony. The village asserts that Hamilton, who has been an engineer for 11 years and serves as vice-president of the Will County storm water management committee, was well qualified to give his opinion about the effect of debris backup on floodwaters.\nExpert testimony is admissible if it assists the trier of fact in understanding the evidence or deciding a fact in issue and the witness is qualified by reason of knowledge, skill, experience, education or training to give said testimony. Yates v. Chicago National League Ball Club, Inc., 230 Ill. App. 3d 472, 484, 595 N.E.2d 570, 579 (1992). Decisions regarding the admissibility of evidence and the sufficiency of the qualifications of an expert rest within the sound discretion of the trial court. Yates, 230 Ill. App. 3d at 484, 595 N.E.2d at 579; Sobczak v. Flaska, 302 Ill. App. 3d 916, 929, 706 N.E.2d 990, 1001 (1998). Such decisions will not be reversed on appeal unless an abuse of discretion has occurred.\nOur review of the record reveals that the trial judge refused to allow the testimony, not because Hamilton lacked technical expertise, but because he was asked to testify to something that he did not witness. Hamilton testified that he observed the property after the flood, not at the time of the flood. As an offer of proof, Hamilton further testified that debris could cause floodwater to back up. The trial court had to decide whether the village had \u201cgrandfathered in\u201d American\u2019s use under the flood ordinance and whether American had expanded its use. Even if, as we believe, Hamilton was qualified to testify to the effects of debris on floodwaters, we conclude that his testimony would not have helped the trial court in understanding the flood control ordinance or in deciding whether American had expanded its use.\nConsequently, we determine that the trial court did not abuse its discretion when it ruled that Hamilton could not testify as to his opinion on the effect that the floating debris could have on the floodwaters.\nB. Denial of the village\u2019s motion to amend its complaint\nThe village contends that the trial court erred in denying its motion to amend its complaint to conform the pleading to the proofs. The village sought to change the dates of the offense alleged in the complaint to reflect the evidence adduced at trial and to amend the zoning ordinance cited in counts II and III to reflect the current versions. The village asserts that the \u201cgravamen\u201d of the charges would have remained unchanged.\nSection 2 \u2014 616(a) of the Code of Civil Procedure authorizes the amendment of pleadings at any time before final judgment on just and reasonable terms. 735 ILCS 5/2 \u2014 616(a) (West 1998). A trial court\u2019s ruling on a motion for leave to amend a complaint is discretionary, and such determinations will not be overturned on appeal absent an abuse of discretion. Barille v. Sears Roebuck & Co., 289 Ill. App. 3d 171, 179, 682 N.E.2d 118, 124 (1997).\nCourts should consider the following factors in determining whether a trial court has abused its discretion in ruling on an amendment to a complaint: (1) whether the proposed amendment would cure a defective pleading, (2) whether the other parties would sustain prejudice or surprise by virtue of the proposed amendment, (3) whether the proposed amendment is timely, and (4) whether previous opportunities to amend the pleading could be identified. Loyola Academy v. S&S Roof Maintenance, Inc., 146 Ill. 2d 263, 273, 586 N.E.2d 1211, 1215-216 (1992).\nIn this case, the proposed amendment was not presented to cure a defective pleading. In fact, in denying the motion, the trial court elicited from the village its acknowledgment that the amendments would not have impacted the trial court\u2019s ruling. Further, the village stated in its brief that it did not ask for an increase in penalties in the event that the amendment to the pleadings were granted. In short, the village has offered no justification for the amendment other than the contention that these facts were adduced at trial.\nIt is apparent, however, that the facts alleged in the motion to amend the complaint were known to the village at the time it filed its original complaint, but the village presented no valid reason for its failure to include them at that time. See Lawson v. Hill, 77 Ill. App. 3d 835, 845, 396 N.E.2d 617, 625 (1979). Moreover, the village could have presented the motion during trial or at the conclusion of trial, but the village chose not to do so until after the court had made its ruling.\nUnder the circumstances, we are unable to determine that the trial court abused its discretion in denying the village\u2019s motion to amend its complaint. Therefore, we affirm the trial court\u2019s denial of the motion.\nCONCLUSION\nFor the foregoing reasons, the judgment of the circuit court of Will County is affirmed in part and reversed in part, and the cause is remanded for further proceedings consistent with this decision.\nAffirmed in part and reversed in part; cause remanded.\nBRESLIN, J., concurs.\nThe flood ordinance defines \u201cdevelopment\u201d as \u201cany manmade change to real estate including *** storage of materials *** [and] *** any other activity of man that might change the direction, height or velocity of flood or surface waters.\u201d Code of Ordinances of the Village of Plainfield ch. 2, \u00a7 2.7 \u2014 2. The village\u2019s prior ordinance contained the same language. Code of Ordinances of the Village of Plainfield No. 1039, ch. 7, \u00a7 3 (November 1, 1982).", "type": "majority", "author": "JUSTICE HOMER" }, { "text": "JUSTICE KOEHLER,\nspecially concurring in part and dissenting in part:\nI concur in the majority\u2019s conclusions that, in the particular circumstances of this case, neither Plainfield\u2019s zoning ordinance nor its flood control ordinance prohibited American\u2019s use of its property for manufacturing and storage purposes as a continuation of a prior nonconforming use. However, I dissent from that portion of the opinion that reverses the circuit court\u2019s finding that, from the evidence presented, it could not determine the extent to which American expanded its use of the property.\nThe village has the burden of proving an ordinance violation by clear and convincing evidence. City of Peoria v. Heim, 229 Ill. App. 3d 1016, 1017, 594 N.E.2d 778, 780 (1992). The circuit court\u2019s findings on questions of fact will not be reversed unless against the manifest weight of the evidence. Pioneer Trust & Savings Bank v. County of Cook, 71 Ill. 2d 510, 516-17, 377 N.E.2d 21, 24 (1978). Clear and convincing evidence has been defined as \u201cthe quantum of proof that leaves no reasonable doubt in the mind of the fact finder as to the truth of the proposition in question.\u201d Bazydlo v. Volant, 164 Ill. 2d 207, 213, 647 N.E.2d 273, 276 (1995). It is more than a preponderance but not quite the degree of proof necessary to convict a person of a criminal offense. Bazydlo, 164 Ill. 2d at 213, 647 N.E.2d at 276. A reviewing court should not reverse the trial court\u2019s findings merely because it disagrees with the fact finder or would have reached a different conclusion. Bazydlo, 164 Ill. 2d at 214, 647 N.E.2d at 276. The trier of fact is in a position superior to that of the reviewing court to observe the witnesses while testifying, judge their credibility, and determine the weight it should give to the testimony. Bazydlo, 164 Ill. 2d at 214-15, 647 N.E.2d at 276-77. \u201cA judgment is against the manifest weight of the evidence only when an opposite conclusion is apparent or when findings appear to be unreasonable, arbitrary, or not based on evidence. [Citations.]\u201d Bazydlo, 164 Ill. 2d at 214, 647 N.E.2d at 277.\nThe record contains photographs of the property that the village maintains show that American progressively put its outdoor property to more extensive use. However, the record also contains testimony that American\u2019s business was cyclical. Further, the witnesses gave conflicting testimony regarding the extent of American\u2019s use. The circuit court had the opportunity to observe and judge the credibility of the witnesses. In addition to noting the cyclical nature of the business and the lack of guidelines presented by the village for determining whether American\u2019s use had expanded, in his ruling from the bench, the trial judge noted that there appeared to be some other reason that the village wanted American off the property and had gone along with American\u2019s use of the property. I would conclude that, where photographs of the property depict business activity on American\u2019s property but the business involved is cyclical and there is conflicting testimony regarding the property\u2019s use, the village did not present clear and convincing evidence of the extent of American\u2019s expansion; therefore, the circuit court\u2019s decision that it could not determine the extent of American\u2019s expansion was not against the manifest weight of the evidence.", "type": "concurrence", "author": "JUSTICE KOEHLER," } ], "attorneys": [ "Michael R. Lucas (argued), of McKeown Law Office, of Joliet, for appellant.", "Michael J. Morrisroe (argued) and C. Kent Frederick, both of Morrisroe & Krafcisin, of Bloomingdale, for appellee." ], "corrections": "", "head_matter": "THE VILLAGE OF PLAINFIELD, Plaintiff-Appellant, v. AMERICAN CEDAR DESIGNS, INC., Defendant-Appellee.\nThird District\nNo. 3-99-0305\nOpinion filed September 12, 2000\nModified opinion filed November 20, 2000.\nKOEHLER, J., concurring in part and dissenting in part.\nMichael R. Lucas (argued), of McKeown Law Office, of Joliet, for appellant.\nMichael J. Morrisroe (argued) and C. Kent Frederick, both of Morrisroe & Krafcisin, of Bloomingdale, for appellee." }, "file_name": "0130-01", "first_page_order": 150, "last_page_order": 162 }