y								Docket No. 93462–Agenda 35–September 2002.

SONYA D. HAWTHORNE, Appellee, v. THE VILLAGE OF

								OLYMPIA FIELDS et al., Appellants.

Opinion filed April 17, 2003.Opinion filed April 17, 2003.

	JUSTICE RARICK delivered the opinion of the court:

	The issue we are asked to resolve in this case is whether a

non-home-rule unit of local government may use its statutory

zoning authority to prevent operation of a home day-care facility

licensed by the State of Illinois. On cross-motions for partial

summary judgment, the circuit court held that it may not. The

appellate court affirmed. 328 Ill. App. 3d 301. For the reasons that

follow, we now affirm the judgment of the appellate court.

	Under Illinois law, the operation of child-care facilities is

regulated by the state. The governing statute is the Child Care Act

 of 1969 (225 ILCS 10/1 et seq. (West 2000)). Under the Act, “[a]ny person, group of persons or corporation who or which

receives children or arranges for care or placement of one or more

children unrelated to the operator” must apply for and obtain a

license from the Department of Children and Family Services

(DCFS). 225 ILCS 10/4(a) (West 2000). Unless certain

exemptions apply, operation of a child-care facility without the

requisite state license is prohibited. 225 ILCS 10/3(a) (West 2000).

Violators are subject to criminal prosecution. 225 ILCS 10/11, 18

(West 2000).

	One type of child-care facility for which licensure is authorized

by the Child Care Act is a “day care home.” A day-care home is a

family home that receives “more than 3 up to a maximum of 12

children for less than 24 hours per day.” 225 ILCS 10/2.18 (West

2000). The specified number of children includes the family’s own

natural or adopted children and all other persons under the age of

12. 225 ILCS 10/2.18 (West 2000).

	In 1999, plaintiff, Sonia Hawthorne, and her husband, Marcus,

purchased a single family home at 3509 Ionia Avenue in the Village

of Olympia Fields. The home was located across the street from a

local school. The Hawthornes bought the property in the hope that

they could provide home day care there. After moving into the residence, plaintiff applied to DCFS for licensure under the Child

Care Act as a day-care home. Her application was approved.

DCFS issued a license to plaintiff to operate a day-care home at the

Ionia Avenue property beginning October 28, 1999.

	Once she moved in and obtained her license from DCFS,

plaintiff contacted Olympia Fields to obtain a building permit so

that she could remodel portions of the premises. The purpose of

the remodeling was to facilitate the operation of the day-care

home. The precise nature of the proposed remodeling is unclear

from the record, but appears to have included installation of a

second kitchen. By letter dated December 16, 1999, Olympia

Fields advised plaintiff and her husband that operation of a day-

care home at the Ionia Avenue location did not comply with the

village’s zoning ordinance and that they would have to obtain a

zoning variance before their application for a building permit could

proceed.

	Plaintiff’s home on Ionia Avenue is zoned residential.

Although Olympia Fields’ zoning ordinance permits “home

occupations” in residential zones (Olympia Fields Municipal Code

§§22–187, 22–207, 22–227 (Ord. No. 17, as revised May 11,

1981)), the village did not believe that a licensed day-care home

was such a use.

	A “home occupation” is defined by Olympia Fields’ zoning

ordinance as

		“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 ***. There shall be no exterior

display, no exterior sign except as allowed by the sign

regulations for the district in which such ‘home

occupation’ is located, no exterior storage of materials, no

other exterior indication of the ‘home occupation,’ or

variation from the residential character of the principal

building, and no offensive noise, vibration, smoke, dust,

odors, heat or glare shall be produced. Offices, clinics, doctors’ offices, hospitals, barbershops, beauty parlors,

dress shops, millinery shops, tearooms, restaurants, tourist

homes, animal hospitals and kennels, among other things,

shall not be deemed to be home occupations.” Olympia

Fields Municipal Code §22–3 (Ord. No. 17, as revised

May 11, 1981).

	Olympia Fields did not think that plaintiff’s use of her home

met the foregoing definition of “home occupation” for three

reasons. First, it would not be carried out “only by members of the

family occupying the premises.” Plaintiff planned to hire someone

from outside the family to assist her. Second, parents would be

picking up and dropping off children at the house, an activity the

village believed would contravene the requirement that there be no

“exterior indication of the ‘home occupation.’ ” Finally, the

proposed addition of a second kitchen would, in the village’s view,

be a “variation from the residential character of the principal

building.”

	Because Olympia Fields believed that plaintiff’s licensed day-

care home did not meet the requirements of a “home occupation”

and did not otherwise qualify as a permissible use under the

village’s zoning ordinance, plaintiff applied to the village for a

zoning variance. Her application, dated January 5, 2000, requested

two forms of relief: permission to operate a day-care home as a

home occupation and a variance to allow her to employ at the

facility someone other than a family member who resided at the

home.

	A public hearing on plaintiff’s application for the zoning

variance was conducted by Olympia Fields’ board of trustees on

January 24, 2000. At the conclusion of the hearing, which included

statements from various neighbors and relatives of plaintiff, the

board of trustees unanimously denied plaintiff’s application.

	Plaintiff subsequently initiated this civil action in the circuit

court of Cook County against Olympia Fields and the village

administrator in her official capacity. Plaintiff’s complaint, as

amended, contained eight counts. Count I alleged that Olympia

Fields’ determination that plaintiff’s day-care home did not

constitute a “home occupation” within the meaning of the village’s

zoning ordinance was erroneous, arbitrary, capricious, unreasonable and contrary to state law. Count II averred that

Olympia Fields’ interpretation of the “home occupations” provision

of its zoning ordinance had the effect of wholly excluding home

day care from the village and that such action is beyond the

village’s power. Count III claimed the Child Care Act and the

DCFS regulations promulgated thereunder preempted Olympia

Fields’ authority to use its zoning ordinance to impede the

operation of day-care homes authorized by the state.

	In count IV, plaintiff charged that the license issued to her by

the state is a type of property entitled to protection by the fifth

amendment of the United States Constitution (U.S. Const., amend.

V) and that defendants’ interpretation of the village zoning

ordinance to deny her permission to operate a day-care home

pursuant to that license constituted an unconstitutional taking

without just compensation. Count V made a parallel claim under

article I, section 15, of the Illinois Constitution of 1970 (Ill. Const.

1970, art. I, §15). Counts VI and VII alleged, respectively, denials

of equal protection and due process in violation of article I, section

2, of the Illinois Constitution of 1970 (Ill. Const. 1970, art. I, §2).

Count VIII claimed that defendants’ action denied plaintiff her due

process rights under the fourteenth amendment to the United

States Constitution (U.S. Const., amend. XIV).

	In each count, plaintiff sought declaratory and injunctive relief

and damages. Counts IV and VIII, which alleged violations of

plaintiff’s federal constitutional rights and invoked the provisions

of 42 U.S.C. §1983, also included a request for an award of

plaintiff’s attorney fees pursuant to 42 U.S.C. §1988. Following an

unsuccessful effort by defendants to remove the cause to federal

court, plaintiff moved for partial summary judgment as to counts

I through V. Defendants opposed that motion and filed a cross-

motion for summary judgment against plaintiff on counts II

through V.

	A hearing was held on the parties’ cross-motions. In the

course of that hearing, count I of the complaint was dismissed as

moot. Following various developments not relevant here, the

circuit court entered a detailed written order addressing the merits

of the parties’ respective requests for summary judgment. It

granted summary judgment in favor of plaintiff and against defendants on count II of her complaint, declaring that the “home

occupations” provision of Olympia Fields’ zoning ordinance was

null and void to the extent that it excludes or has the effect of

excluding the operation of licensed day-care homes in the village.

	With respect to count III, the court granted the parties’

respective motions for summary judgment in part and denied them

in part. The court declared that Olympia Fields could regulate day-

care homes, but only if its regulations did not conflict with the

Child Care Act or the DCFS regulations promulgated thereunder.

To the extent that its zoning ordinance was interpreted to regulate

day-care homes “in a manner that conflicts in any way with the ***

Child Care Act or the DCFS regulations,” the court held that it was

preempted by state law and was “null and void.”1 Accordingly, the court ruled that Olympia Fields could not invoke its zoning

regulations to limit the number of children that may be cared for in

a day-care home, to restrict the employment of nonfamily members

to assist in the care of children in a day-care home, or to limit

operation of the day-care home to the building portion of the

premises.

	Based upon the foregoing determinations, the circuit court

permanently enjoined Olympia Fields from regulating day-care

homes, under its zoning ordinance or otherwise, “in a manner that

that conflicts in any way with the *** Child Care Act or the DCFS

regulations.” It further held “that, notwithstanding any presently-

existing provisions of the Olympia Fields [zoning ordinance],

Plaintiff is entitled to operate a day care home at [her residence]

pursuant to the terms of her DCFS license.”

	With respect to counts IV and V of plaintiff’s amended

complaint, which alleged that Olympia Fields’ actions had

constituted an unconstitutional taking without just compensation, the circuit court believed that genuine issues of material fact

remained. It therefore denied summary judgment as to both counts.

Those counts remain pending, as do the claims asserted by plaintiff

in counts VI, VII and VIII.

	Although the circuit court’s judgment did not finally dispose

of all of plaintiff’s claims, it included an express written finding that

there was no just reason for delaying either enforcement or appeal.

That finding permitted plaintiff to bring an immediate appeal under

Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)). We note

parenthetically that because the circuit court’s judgment granted an

injunction, it would also have been immediately appealable

pursuant to our Rule 307(a) (166 Ill. 2d R. 307(a)).

	In the appellate court, Olympia Fields challenged the trial

court’s determination that its zoning ordinance had the effect of

unlawfully excluding day-care homes from the village. It also

argued that the trial court erred in determining that its power to

regulate day-care homes through its zoning ordinance was

preempted by state law to the extent that the ordinances conflicted

with the Child Care Act and the DCFS regulations promulgated

thereunder. Rejecting both arguments, the appellate court affirmed

the trial court’s judgment, with one justice specially concurring in

part and dissenting in part. 328 Ill. App. 3d 301.

	Our court granted Olympia Fields’ petition for leave to appeal

pursuant to Supreme Court Rule 315(a) (177 Ill. 2d R. 315(a)).

We subsequently allowed motions by the following governmental

entities and private organizations for leave to file briefs as amici curiae: (1) the City of Rockford; (2) the Villages of Grayslake, Hinsdale, LaGrange and Lake Zurich; and (3) Voices for Illinois

Children, Day Care Action Council of Illinois, the Carole

Robertson Center for Learning, the Human Development Center,

the Women’s Business Development Center, and the Women’s

Self-Employment Project. 155 Ill. 2d R. 345. In addition, we

permitted DCFS to file a “statement of position.”

	In our court, as it did in the appellate court, Olympia Fields

raises two basic arguments: first, that its zoning ordinance does not

have the effect of unlawfully excluding day-care homes from the

village, and second, that its power to regulate day-care homes

through its zoning ordinance has not been preempted by state law. No issue is raised as to the trial court’s dismissal of count I, which

concerned Olympia Fields’ construction of the “home occupation”

provision in the zoning ordinance, or its refusal to grant summary

judgment on counts IV and V, which asserted that defendants’

interpretation of its zoning ordinance to deny plaintiff permission

to operate a day-care home pursuant to her state-issued license

constituted a taking without just compensation in violation of the

federal and state constitutions.

	Before we proceed to the merits of Olympia Fields’ appeal, a

procedural issue warrants comment. When Olympia Fields denied

plaintiff the zoning variance she requested, plaintiff did not seek

administrative review of the denial in circuit court. Rather, she

initiated this independent civil action for declaratory and injunctive

relief and damages. The lack of administrative review, however, is

not an impediment to plaintiff’s cause of action.

	It is true that under the Illinois Municipal Code (65 ILCS

5/1–1–1 et seq. (West 2000)), all final administrative decisions by a zoning board of appeals are subject to judicial review pursuant to

the provisions of the Administrative Review Law (735 ILCS

5/3–101 et seq. (West 2000)). See 65 ILCS 5/11–13–13 (West 2000). That includes decisions regarding variances. 65 ILCS

5/11–13–4, 11–13–5 (West 2000).

	It is also true that review of a final administrative decision in

circuit court in accordance with the Administrative Review Law is

regarded as an administrative remedy subject to the exhaustion

doctrine. Where the Administrative Review Law is applicable and

provides a remedy, a court may not redress a party’s grievances

through any other type of action. The circuit court’s power to

resolve factual and legal issues arising from the challenged decision

must be exercised within its review of the decision under the

Administrative Review Law and not in a separate proceeding.

County of Knox ex rel. Masterson v. The Highlands, L.L.C., 188 Ill. 2d 546, 551-52 (1999).

	In the case before us now, however, the final decision was

rendered by Olympia Fields’ board of trustees rather than by a

zoning board of appeals. The Illinois Municipal Code expressly

authorizes the corporate authorities of municipalities with fewer

than 500,000 residents to reserve to themselves the power to determine and approve zoning variances. When corporate

authorities elect to retain the power to determine and approve

zoning variances, as the village trustees in this case did, that power

can only be exercised through adoption of ordinances. 65 ILCS

5/11–13–5 (West 2000).2 The enactment of an ordinance is a legislative act. See Kleidon v. City of Hickory Hills, 120 Ill. App. 3d 1043, 1046 (1983). So, too, is the refusal of a legislative

agency, whether a municipality or a county, to amend its

ordinances. See Smith v. County Board, 86 Ill. App. 3d 708, 714- 15 (1980).

	The Administrative Review Law does not apply to the

legislative acts of legislative bodies. See Fitzpatrick v. City of Springfield, 10 Ill. App. 3d 317, 320-21 (1973). Administrative review is applicable only where the legislative body transfers to

some administrative agency the authority to administer the

ordinance. See Smith v. County Board, 86 Ill. App. 3d at 715. Accordingly, where zoning action is taken by the legislative body

itself, as it was in this case, a civil proceeding challenging the

legislative body’s action is not subject to attack on the grounds that

the plaintiff failed to proceed under the Administrative Review

Law. Administrative review under the statute is not required. See Camardo v. Village of La Grange Park, 61 Ill. App. 2d 302, 308 (1965). Indeed, proceedings to secure review of a legislative

determination under the Administrative Review Law would be a

nullity. See Flowers v. Village of Indian Creek, 22 Ill. App. 3d 6, 9 (1974). Plaintiff’s action for declaratory and injunctive relief and damages is therefore not subject to challenge on the grounds that

she failed to exhaust her administrative remedies.

	Failure to exhaust administrative remedies is not an available

defense in this case for two additional reasons as well. First, to the

extent that plaintiff alleges that Olympia Fields lacked statutory

authority to bar operation of a day-care home licensed by the state,

she is challenging the village’s jurisdiction. Such challenges are not

subject to the exhaustion doctrine. See County of Knox ex rel. Masterson, 188 Ill. 2d at 552-55. Second, the exhaustion doctrine was not raised by defendants as a basis for challenging plaintiff’s

complaint when this matter was pending in the circuit court. Failure

to exhaust administrative remedies is an affirmative defense that is

waived if not be raised in the trial court. People v. Fiorini, 143 Ill. 2d 318, 337 (1991). As a result, defendants would be precluded

from invoking the doctrine now even if it were applicable in cases

such as this.

	We turn, then, to the merits of defendants’ appeal. As we

indicated previously, this matter arose from an order of the circuit

court granting in part and denying in part cross-motions for

summary judgment. At issue is the construction of and interplay

between Olympia Fields’ zoning ordinance, on the one hand, and

the Child Care Act and related DCFS regulations, on the other.

Resolution of that issue is a matter of statutory interpretation and

constitutional law. The applicability and effect of constitutional

provisions, the interpretation of statutes and ordinances, and the

evaluation of whether summary judgment should have been

allowed in a case all present questions of law, which this court

reviews de novo. People ex rel. Birkett v. City of Chicago, 202 Ill. 2d 36, 46 (2002); People v. Lindsey, 199 Ill. 2d 460, 463 (2002); see Memory Gardens Cemetery, Inc. v. Village of Arlington Heights, 250 Ill. App. 3d 553, 561 (1993).

	In analyzing the relationship between Olympia Fields’ zoning

ordinance and state law regulating day-care homes, we begin by

noting that Olympia Fields is a non-home-rule unit of government.

As such, it is governed by article VII, section 7, of the Illinois

Constitution of 1970 (Ill. Const. 1970, art. VII, §7). Article VII,

section 7, confers six basic powers on non-home-rule municipalities

such as Olympia Fields: (1) the power to make local improvements by special assessments; (2-4) the power, through referendum, to

adopt, alter or repeal their forms of government and to provide for

“their officers, manner of selection and terms of office”; and (5-6)

the power to incur debt and to levy or impose additional taxes,

subject to certain exceptions and limitations. Ill. Const. 1970, art.

VII, §7.

	Beyond the foregoing enumerated powers, “municipalities

which are not home rule units shall have only powers granted to

them by law.” Ill. Const. 1970, art. VII, §7. They have no inherent

powers. Ross v. City of Geneva, 71 Ill. 2d 27, 31 (1978). They may exercise only those powers that the state legislature confers upon

them, either expressly or impliedly, by statute. American Telephone & Telegraph Co. v. Village of Arlington Heights, 156 Ill. 2d 399, 460 (1993) (Bilandic, J., dissenting), citing Pesticide Public Policy Foundation v. Village of Wauconda, 117 Ill. 2d 107, 111-12 (1987).

	To the extent that Olympia Fields has the authority to regulate

land use through zoning, that power derives from article 11,

division 13, of the Illinois Municipal Code (65 ILCS 5/11–13–1 et seq. (West 2000)). That statute confers on corporate authorities in municipalities the power:

			“(4) to classify, regulate and restrict the location of

trades and industries and the location of buildings

designed for specified industrial, business, residential, and

other uses; (5) to divide the entire municipality into

districts of such number, shape, area, and of such different

classes (according to use of land and buildings, height and

bulk of buildings, intensity of the use of lot area, area of

open spaces, or other classification) as may be deemed

best suited to carry out the purposes of this Division 13;

(6) to fix standards to which buildings or structures therein

shall conform; (7) to prohibit uses, buildings, or structures

incompatible with the character of such districts ***.”

	Consistent with this statutory authorization, Olympia Fields’

zoning ordinance divides the village into districts according to the

criteria set forth in the law, establishes the standards to which

buildings and structures in each district must conform, and

prohibits certain uses in certain districts. To this extent, the ordinances are uncontroversial. The dispute here has centered on

precise scope of the village’s power to prohibit uses it deems

incompatible with the districts it has established. While article 11,

division 13, of the Illinois Municipal Code (65 ILCS 5/11–13–1 et seq. (West 2000)) unquestionably authorizes Olympia Fields to exclude a particular use from a particular district, the appellate

court believed that the village zoning ordinance, as applied, had the

effect of completely excluding licensed day-care homes from

anywhere within the village. In the appellate court’s view, the total

exclusion of a lawful use exceeds a municipality’s statutory

authority and is impermissible.

	Olympia Fields countered this argument by asserting that its

zoning ordinance does not, in fact, completely exclude day-care

homes from the village. The appellate court rejected that argument

and so do we. While it may be possible to operate various kinds of

child-care facilities within the corporate limits of Olympia Fields,

this case concerns day-care homes. Day-care homes are a separate

and specific type of child-care facility under the Child Care Act. By

definition, a day-care home is conducted in a “family home.” 225

ILCS 10/2.18 (West 2000). A “family home” is synonymous with

a “family residence” and refers to the “location or portion of a

location where the applicant and his or her family reside.” 89 Ill.

Adm. Code §406.2 (2002). Under the Olympia Fields’ zoning

ordinance, individuals may only reside in districts zoned residential.

Accordingly, the only possible place a day-care home could be

operated in Olympia Fields is in one of its residential districts.

	Under the terms of the village’s zoning ordinance, the only

businesses permitted in residential districts, aside from temporary

real estate offices, are “home occupations.” There is no longer any

dispute that day-care homes do not meet the ordinance’s definition

of a home occupation. Because day-care homes are not permissible

as a home occupation, they fall within the category of uses that are

not specifically permitted. Pursuant to section 22–171 of the

village’s zoning ordinance, a use that is not specifically listed as a

permitted use is presumed to be expressly prohibited absent a

written decision by the zoning board of appeals. No such decision

exists here. In addition, no basis exists for overcoming the presumption of express prohibition. We must therefore conclude

that day-care homes are expressly prohibited in Olympia Fields.

	This conclusion is consistent with basic principles of zoning

law. As noted earlier in this opinion, variances stand in contrast to

special use permits. Special use permits allow property owners to

put property to a use that zoning enactments expressly authorize.

Variances, by contrast, presuppose that under the terms of the

existing ordinance, the proposed use is forbidden. Living Word Outreach, 196 Ill. 2d at 17. They are changes in the law to permit what, absent a change, the law would not allow. Had Olympia

Fields’ zoning ordinance not prohibited the operation of day-care

homes, the question of a variance would therefore not even have

arisen. Accordingly, the appellate court did not err when it

determined that the zoning ordinance completely excludes day-care

homes from operating anywhere in the village.

	The appellate court regarded the exclusionary effect of the

zoning ordinance to be dispositive of plaintiff’s claim. In its view,

the ordinance must be deemed invalid because municipalities do

not have the power under Illinois law to wholly exclude a lawful

business from their boundaries. Defendants and certain of the amici who support defendants take strenuous exception to that

proposition. In their view, there may be circumstances where the

total exclusion of a particular use is permissible. Amici the Villages of Grayslake, Hinsdale, La Grange and Lake Zurich argue, for

example, that if municipalities are required to permit every lawful

use of property, a residential community that contains no districts

zoned for manufacturing or industrial uses could nevertheless be

obligated to allow operation of a manufacturing or industrial

facility such as a tannery. They contend that the law should not

countenance such a result.

	The point is a fair one. We need not resolve it here, however,

for even if municipalities do possess the authority to engage in

exclusionary zoning in appropriate circumstances, that power

would not extend to the situation presented by this case. Because

it is a non-home-rule unit, Olympia Fields cannot adopt ordinances

under a general grant of power that infringe upon the spirit of state

law or are repugnant to the general policy of the state. Although

the village possesses zoning powers by virtue of article 11, division 13, of the Illinois Municipal Code (65 ILCS 5/11–13–1 et seq. (West 2000)), ordinances enacted under those powers that conflict

with the spirit and purpose of a state statute are preempted by the

statute. See Commonwealth Edison Co. v. City of Warrenville, 288 Ill. App. 3d 373, 380 (1997). “[W]here there is a conflict between

a statute and an ordinance, the ordinance must give way.” Village of Mundelein v. Hartnett, 117 Ill. App. 3d 1011, 1015 (1983).

	As detailed earlier in this disposition, 	the operation of child- care facilities in Illinois is regulated by the state. The governing

statute is the Child Care Act of 1969 (225 ILCS 10/1 et seq. (West 2000)), which requires “[a]ny person, group of persons or

corporation who or which receives children or arranges for care or

placement of one or more children unrelated to the operator” to

apply for and obtain a license from the Department of Children and

Family Services (DCFS). 225 ILCS 10/4(a) (West 2000). Under

the Act, responsibility for prescribing and publishing “minimum

standards for licensing that apply to the various types of facilities

for child care defined in [the] Act,” including day-care homes, rests

with DCFS. 225 ILCS 10/7(a) (West 2000).

	Pursuant to its statutory authority, DCFS has promulgated

comprehensive regulations governing the physical facilities a day-

care home must possess (89 Ill. Adm. Code §406.8 (2002)); the

characteristics and qualifications of the home’s family, caregivers,

assistants and substitute caregivers (89 Ill. Adm. Code §§406.9

through 406.11 (2002)); the number and ages of children the home

may serve (89 Ill. Adm. Code §406.13 (2002)); the opportunities

for daily activity the home must provide to the children (89 Ill.

Adm. Code §406.16 (2002)); and a wide variety of other matters

ranging from nutrition and meals (89 Ill. Adm. Code §406.17

(2002)) to recordkeeping (89 Ill. Adm. Code §406.24 (2002)).

These standards apply uniformly throughout the state.

	The foregoing regulatory scheme is comparable in breadth to

the one considered by this court in Pesticide Public Policy Foundation v. Village of Wauconda, 117 Ill. 2d 107 (1987). Pesticide Public Policy Foundation concerned the system enacted by the General Assembly for regulation of pesticides. As with the

regulations for child care at issue in this case, the pesticide statutes

in Pesticide Public Policy Foundation established statewide standards and licensing requirements and gave regulatory and

enforcement authority to agencies of state government. “[N]otably

absent from the [state statutes was] any provision delegating

authority to, or allowing regulation by, units of local government.”

Pesticide Public Policy Foundation, 117 Ill. 2d at 116. The Village of Wauconda nevertheless enacted a local ordinance that purported

to impose separate and additional requirements on individuals who

wished to apply pesticides.

	If followed, Wauconda’s ordinance would have enabled the

village, which was a non-home-rule unit, to prevent persons from

applying pesticides even though they had been duly licensed to do

so by the state. We found that to be impermissible. “To allow a

local non-home-rule unit of government to override the

determinations of the legislature would frustrate the purposes of

the [state pesticide statutes].” Pesticide Public Policy Foundation, 117 Ill. 2d at 119. Because of the comprehensiveness of the state

statutes and because of the legislature’s interest in imposing

uniform standards, we concluded that the state statutes preempted

Wauconda from enacting its ordinance regulating pesticides.

Pesticide Public Policy Foundation, 117 Ill. 2d at 120.

	We believe that the same principles hold true with respect to

the relationship between the Child Care Act and its attendant

regulations and the Olympia Fields zoning ordinance. Indeed, the

need to invoke the preemption doctrine is even more compelling

here than in Pesticide Public Policy Foundation. In Pesticide Public Policy Foundation the challenged ordinance merely made the business of pesticide application more onerous. A person

licensed by the state could still ply his trade if he conformed to the

additional requirements imposed by the municipality. In this case,

by contrast, the municipality’s ordinance stands as a complete bar

to the operation of a state-licensed day-care home. Under Olympia

Fields’ zoning ordinance, the licensing system for day-care homes

is rendered a nullity.

	Finally, defendants contend that if the General Assembly had

intended the Child Care Act and its regulations to have preemptive

effect, it would have said so explicitly in the legislation. In support

of that argument, defendants cite examples of legislation from

various foreign jurisdictions that specifically curtail or prohibit local regulation of day-care homes. We do not find those examples

helpful to our analysis. There is no question that preemption can be

accomplished through explicit statutory language. That preemption

can be achieved explicitly does not mean, however, that it must be done explicitly. The law of Illinois recognizes preemption by

implication. That doctrine holds that where the legislature has

enacted a comprehensive system of regulation and licensure, as it

did in this case, the legislature implies by that system that there is

no room for regulation by local governmental units. Pesticide Public Policy Foundation, 117 Ill. 2d at 115. The absence of an express prohibition against local regulation in the Child Care Act

is therefore not an impediment to application of the doctrine of

preemption to the dispute before us.

	For the foregoing reasons, the appellate court acted correctly

when it upheld the judgment of the circuit court. Pursuit to the

circuit court’s ruling, Olympia Fields is prohibited from regulating

day-care homes under its zoning ordinance in a manner that

conflicts in any way with the Child Care Act of 1969 or the DCFS

regulations adopted pursuant to that Act. In addition, plaintiff is

entitled to operate at day-care home at her residence pursuant to

the terms of her DCFS license. No separate questions have been

raised regarding the propriety of that relief. The judgment of the

appellate court is therefore affirmed.

Affirmed.

	JUSTICE GARMAN, dissenting:

	I agree with the majority that non-home-rule municipalities

have the authority to regulate land use through zoning and that

article 11, division 13, of the Illinois Municipal Code (65 ILCS

5/11–13–1 et seq. (West 2000)) “unquestionably authorizes Olympia Fields to exclude a particular use from a particular

district.” Slip op. at 11. The majority concedes that Olympia Fields

is within its authority in promulgating ordinances that “divide[ ] the

village into districts according to the criteria set forth in the law,

establish[ ] the standards to which buildings and structures in each

district must conform, and prohibit[ ] certain uses in certain districts.” Slip op. at 10. However, I disagree with the majority that

the zoning ordinance in question expressly prohibits day-care

homes in Olympia Fields and that the Child Care Act of 1969 and

the DCFS regulations adopted pursuant to the Act have a

preemptive effect.

	In Olympia Fields, a proposed home business must satisfy

either the performance criteria set forth in the home occupation

ordinance or receive a variance under the municipality’s

procedures. A home occupation is permitted based in part on the

nature of the business proposed and on the impact it will have on

the surrounding community. The majority states that there “is no

longer any dispute that day-care homes do not meet the

ordinance’s definition of a home occupation.” Slip op. at 11. The

declaration that all day-care homes fail to meet the ordinance’s definition of a home occupation is unwarranted. While this

particular proposed day-care home may fail to satisfy the

requirements set forth in the ordinance, it cannot be said

categorically that no day-care home could ever be deemed a home occupation. In fact, one could easily conceive of a situation where

a proposed day-care home would meet the definition of home

occupation under the ordinance. For example, a proposed day-care

home owned and operated solely by the residents of the home,

adjacent to a park, without a sign or other profound exterior

indications of home occupation, and not requiring alteration of the

essential character of the building, could fall within the ordinance’s

definition of home occupation.

	Assuming, arguendo, that the majority’s conclusion that the home occupation ordinance contains restrictions effectively

prohibiting day-care homes is correct, I do not agree that the

ordinance in question is rendered unconstitutionally exclusionary.

A use variance extends to property owners the ability to use

property in a manner forbidden by zoning enactments. City of Chicago Heights v. Living Word Outreach Full Gospel Church &

Ministries, Inc., 196 Ill. 2d 1 (2001). Exclusionary zoning occurs when a municipality totally excludes a business from operating

anywhere within its corporate boundaries, without exception. It is

clear that Olympia Fields allows day-care homes, without a

variance, if the operation is run by members of the family who occupy the premises, if the day-care home is run wholly within the

principal or an accessory building, and if there is no exterior

indication of the home occupation. If the proposed day-care home

does not meet these criteria, as was the case in this instance, the

prospective operator has the ability to apply for a variance.

Therefore, the ordinance does not operate as a blanket exclusion

of day-care homes throughout Olympia Fields, but rather allows

for a case-by-case determination of whether this home occupation,

or any other proposed home occupation, is appropriate at a

particular location.

	The majority relies heavily on our holding in Pesticide Public Policy Foundation to find that the local ordinance must give way to state law because the operation of child-care facilities in Illinois

is regulated by the state. In Pesticide Public Policy Foundation, a non-home-rule municipality promulgated an ordinance that

imposed requirements separate from and in addition to those

enacted by the state for individuals who wished to apply pesticides.

We held that because of the comprehensiveness of the state

regulations, and because of a legislative interest in a uniform

scheme of pesticide regulation, the non-home-rule municipality was

preempted by state law from enacting local ordinances regulating

pesticides. The majority contends that the challenged ordinance in

that case “merely made the business of pesticide application more

onerous” and that a person “could still ply his trade if he

conformed to the additional requirements imposed by the

municipality.” Slip op. at 14. By contrast, the majority contends

that Olympia Fields ordinance stands as a complete bar to the

operation of a state-licensed day-care home and that the licensing

system for day-care homes is rendered a nullity. Slip op. at 14.

	Pesticide Public Policy Foundation is clearly distinguishable from this matter. Unlike the ordinance at issue in Pesticide Public Policy Foundation, the ordinance in question in this instance does not attempt to regulate licensure or impose additional requirements

for obtaining certification for the operation of a day-care home.

The Child Care Act is designed to insure that the operators of

child-care facilities do so in a manner that protects the safety of and

promotes healthy environments for children receiving child care.

The Olympia Fields ordinance simply attempts to determine whether a licensed child-care facility may operate at a particular

location in a manner that will not interfere with the essential

character of a specific neighborhood or the quiet use and

enjoyment of property by neighboring property owners. Olympia

Fields is not attempting to regulate child care. It is simply

regulating the location of industry and the location of buildings

designed for specific industrial, business, residential, and other uses

within its boundaries, as it is allowed to do pursuant to our

constitution and the Municipal Code. The Act is silent as to the

relationship between the regulated service provider and the

surrounding property owners, or as to the ability of municipalities

to determine whether a home day-care is appropriate in specific

locations. If the legislature had intended that the licensing

requirements of the Act would serve as a complete bar to local

zoning authority as it relates to child-care facilities, it could have

readily done so in a single sentence. It did not, and we should not

do so in its stead.

	I believe this case is more like Builders Supply & Lumber Co. v. City of Northlake, 21 Ill. 2d 14 (1960). In Builders Supply & Lumber Co., the plaintiff challenged a local zoning ordinance because it did not affirmatively allow multifamily dwellings. We

held that the ordinance “does not prohibit multiple dwellings, it

merely fails to provide for the same.” Builders Supply & Lumber Co., 21 Ill. 2d at 18. Because a multifamily dwelling may be a legitimate use of land in some areas of the community and not in

others, it would be necessary to “prove the character of the

neighborhood, the classification and the use of nearby property, the

extent to which property values are diminished by the particular

zoning restrictions involved, the gain to the public compared to the

hardship imposed upon individual property owners, and thus

determine whether the purported exercise of the police power is

unreasonable or confiscatory.” Builders Supply & Lumber Co., 21 Ill. 2d at 18. In other words, the validity of a particular municipal

zoning decision must be determined on a case-by-case basis.

	I believe the same considerations are important in this

instance. As argued by the appellant, a proposed day-care home

located on a corner lot, with a spacious backyard, near a park, and

serving a small number of children is entirely permissible, if not desirable. However, a proposed facility for a dozen or more

children, at a small mid-block house on a busy street, with limited

yard space, and with no driveway or drop-off area might be

extremely disruptive to neighboring property owners’ quiet use and

enjoyment of their investments. Unfortunately, the effect of the

majority’s holding is that a municipality has no authority to

conduct case-by-case zoning analyses of day-care home requests

and that competing interests will not be considered. So long as the

proposed operator has completed the requisite licensing

requirements, he or she could operate a day-care home at the

corner of the busiest intersection in town and the municipality and

neighboring residents could do nothing about it.

	The State of Illinois issues licenses or permits for numerous

and diverse occupations as part of its regulating authority.

However, the issuance of a state license is not an entitlement to

operate a business wherever one sees fit, irrespective of the rights

and interests of adjacent property owners and local governments

established to protect and provide for residents. Today’s holding

threatens the ability of a non-home-rule municipality to exercise

any measure of control over the location of a state-regulated

business within its own boundaries and, therefore, the ability to

preserve the integrity of its residential neighborhoods from

potentially incompatible uses. I fear this holding severely erodes

long-standing principles of local governmental control inherent in

our state constitution and developed through both statutory and

case law.

	I respectfully dissent and would reverse the trial and appellate

courts’ findings that the zoning ordinance had the effect of

unlawfully excluding day-care homes from the village.		

	JUSTICE KILBRIDE joins in this dissent,.