The opinion
JUSTICE KOEHLER, specially concurring in part and dissenting in part:
I concur in the majority’s conclusions that, in the particular circumstances of this case, neither Plainfield’s zoning ordinance nor its flood control ordinance prohibited American’s 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’s finding that, from the evidence presented, it could not determine the extent to which American expanded its use of the property.
The 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’s 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 “the quantum of proof that leaves no reasonable doubt in the mind of the fact finder as to the truth of the proposition in question.” 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’s 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 . “A 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.]” Bazydlo, 164 Ill. 2d at 214 , 647 N.E.2d at 277 .
The 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’s business was cyclical. Further, the witnesses gave conflicting testimony regarding the extent of American’s 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’s 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’s use of the property. I would conclude that, where photographs of the property depict business activity on American’s property but the business involved is cyclical and there is conflicting testimony regarding the property’s use, the village did not present clear and convincing evidence of the extent of American’s expansion; therefore, the circuit court’s decision that it could not determine the extent of American’s expansion was not against the manifest weight of the evidence.