redistribute beds to where they are needed allowing them to further their mission personally is both critical and responds how many beds are in the harvard mercy hospital at this point  be smaller hospitals in two different i mean not distant but at different ends of the county for all practical purposes yes that's mr eaton the issue seems to be the said maybe we should look at and our criteria before we start making decisions of this nature here i think he plaintiffs adelies in this case have presented a false choice they said that either you apply these criteria and the minimum bet criterion is give a dispositive weight or you have to repeal them and those are not the choices that were clearly was aware of them in the bed criterion considered  relevant gave it weight but in light of its discretion which the statute gives it determined that the weight to be given that criterion was over balanced by the other circumstances in this case there was an unmet need for factors that the statute is intended to avoid the board is charged by the scare action with balancing the meeting unmet needs and of waiting over capacity were underutilization and that something be doing they have long expertise in doing and so i think the the argument that they disregarded was reassuring and is wrong they can see are the criteria and it was the elephant in the moment was the subject to extensive questioning by the board members and departure is necessary i suppose you could argue that maybe they should have provided each of them more detail as to the reasons for concluding that the the announcement will move this criterion did warrant denying the application but it is since it was in the year everybody had talked about this concern it was the focus of so much of the proceedings will warm when he met it in the community it's not as if there was any mystery about why they were usually voting to support the most of the members that voted in favor of it specifically referred to their concerns about the staff findings that some of the criterion had not been mad and they then went on to observe that they asked nonetheless the applications approval was justified in light of the testimony given by the participants including mercy's explanation as to why inside the hospital at this location  that level and that was not increasing over capacity in the plan in your area because it was relocating beds from the heavily underutilized hospital they had at harvard so i think in terms of the explanations given there's no real mystery as to why the individual members who voted in favor of it i believe that noncompliance with that factor did not require denying the application and in terms of the statutory requirement i of an application the standard is is relatively modest and simply says they have to put on the transcript of the reasons for their findings that the that it will be application was justified and it does not wins that's just not a fair result in any sense of the law the emergency services for this particular area seem to be important to a lot of the they exist you know if you have a cut but it's not so severe that you need to be taken to a place where they can immediately stanch the bleeding and give you are just selling to urgent care facilities also governed by the planning act or can they be probably do different criteria as for approval and even though urgent care centers i have seen even though hospitals now are doing more and more out patient care where somebody doesn't need a bed more of the evening hospital still needs that important ne urgent care facility for doctors offices in some urgent duty and there was an important medical need but it is not the same as a hospital room to be an emergency care facility so there are a lot of questions in this case but i think cutting to the essence of what's application so the idea that this is of a different character has to be satisfied in all cases is legally incorrect or properly after her own review criterion and it does give then not complian circumstances this was a local geographic area where a hospital this size was justified due to one of the meth needed and a larger hospital would have created a worse problem over the past and worse as this one and that not actually exist no if you can imagine the examples of noncompliance with a performance criterion were the boards would act in an arbitrary manner by by not treating it as require denial and if you have an applicant's qualifications were it is you know it shown that they don't have the financial capability to to run the hospital or they've been run out of town in twenty seven other jurisdictions or something like that because their doctors of lost their licenses i mean if some point the facts become so significant that that this court would have to say it's arbitrary and capricious for the board to back him but i'm not aware of any case or published case in which an appellate court after reviewing the record carefully which is are in tension with each other and of course you have competitors that in a you know very competitive industry that are each trying to get as many beds in their system and prevent the others from getting beds in their system and the board is charged with the responsible use being t players in this case were given every opportunity to to make a case many of the argument that they're making here are ones that were properly directed to the war but once the board has decided that this application should be approved it meets the public interest even if long as you apply the same method you you're going to come out of the same might come out with your own on it and even if there is an extreme difference between say your case and not to say well i agree with that i reviewed the board's decision all on the same basis and what the courts in the board reviews all of the criterion on the same basis like they're supposed to get their supposed because when they adopt  in the mercy crystal way case which involves integra hospital huntly that's a s a perfect example of what the courts are doing the the rd just correct in the mercy crystal lake case did not say that because integra met seventeen criteria that outweighed or justify noncompliance on three criteria rather what the court did was it looked a centex evidence on the negative criteria and found that that evidence justified the words of approval of the project the same thing with the pro being a health case which involves sherman hospital the st district in that case did not say that because sherman hospital met fourteen criteria that justified or outweighed not in compliance on the negative criteria the court looked at the there is why this case is very much like manner here in the manner of her case this court did not say because the album can't met seventeen criteria that outweighed the three negative criteria this court said rather that the applicant there just like mercy here said that not in compliance with was no impediment to approval and the applicant present evidence showing any type of compliance with the negative criteria and this court affirmed the board's denial of that application based just on those three criteria but it doesn't just expert testimony showing when our project was completed all the hospital was in the area would be full it was a shame they presented extra testimony saying that it was not we also presented the state's own projections showing there would be full utilization of when the project hospital came online so what does that tell the board in the core the board actually issued  binding saying they accepted our evidence and they said accepted their own of projections so what is the show that shows substantial compliance and shows that the purpose of the full utilization wa percent and the existing home nursing homes were operating at seventy nine percent so ninety percent versus seventy nine percent that was not substantial compliance with the rule what do we have here  hundred beds versus ten days sixty percent i c u utilization versus seventeen percent utilization by no stretch of the imagination can that be substantial compliance here then asking about in this case they're not projecting for you a section there they're saying we're going to only be at seventeen percent or versus your sixty percent which under previous help is substantial compliance the criteria i doubt by the former so if the board adopts the criteria the planning act requires substantial compliance if the board does not want to require was where the law required ninety percent utilization there was a project with eighty nine percent utilization and the other facilities in the area would not be adversely impacted by the project the and it to this area what a dish no beds are they adding to the syria they're taking out of harvard that is the underutilized in there putting in crystal light well those are people in harbor if they if they get full and access patient you get there on that see they have a flight they have a flight pad and there are also in dillon says i've seen coming and going i don't know what they're doing but and the soon they're taking people back and forth to different places  but but as you mentioned there are all kinds of urgent care and emergency rooms in this crystal lake area it's surrounded by emergency rooms and they're they're not up in mercy harbor so counsel said to the court file that it was impossible for southern illinois but her programs to get to two hundred procedures that were required for the criteria is it they have a rule for one hundred beds is we don't want people coming in with small projects we want there to be a need for one hundred beds before somebody comes in with a project for a new hospital that's what syntagma did so all that distinguishes this case from mary in rules not impossible to sue to meet here was mentored by one of the board members that it would they could always that was a rule that needed to be complied with it was not as a matter of fact it was flaunted that it was not mercy's own expert mr weber testified that we know it doesn't need to rule but this is what we think is right that is ad hoc as area of less than one hundred dollars beds the example that probably will come up is northwestern hospital in lake forest but that's not a new hospital they simply moved across the parking lot there are no new hospitals and this as i say if you go further down the state there are requirement requires articulation and enhance or we use it you know in yours what you're just saying is that if what they need he's the explanation is legally insufficient yes because there was no meaningful rationale given for that decision but the planning act requires a detailed explanation as to why an application is did not it doesn't say anywhere in the earth that it's for when an application is granted i don't believe there's a certainly true our performance criteria that are not met as well as the comments very strong comment that the performance requirement regarding minimum medical surgical and intensive care unit beds was not met so if you step back and we force well i believe your your colleague there said that in the other cases the the board has looked at the negative things and those needs have been established through the rules and the regulations which is ask we should refuse every two years in which in this case it has changed that one hundred beds will so what we think we have here is a case where the is saying we are now or never subject to review because we can simply say well we didn't look at these two or didn't look at those three but here they ignored them and they did exactly what vice chairman sewell did is they changed the rules for this one consider the criterion relevant not nonexistent and they considered not compliant with that criterion to be outweighed by the other circumstances relevant here putting in particular the unmet need for services in these these criterion to weigh them according to the particular circumstances of the case and the more he is charged with responsibly to determine whether they have done so in a rational manner one of arbitrary and i submit noncompliance with one does not work in your mind when they reconsidered the rules did they not make an adjustment is was there anything on to the one hundred beds is there anything on a record on a record that would indicate i don't know  criterion is essentially dispositive and in all cases this is just a general matter where the board is given multiple factors to evaluate it does so within its discretion subject is revealed and trying to remove right those the board members refer to the bed size issue repeatedly they refer to the staff findings in the evidence that a valid stows and the statutory discussion of those requirements that says the board member show provide their rationale when voting was complied with here finally i think the critical issue in this case is that the plaintiffs after leaves here are inviting the court to soon the role of the way the evidence and making its o