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Lion Spec. & Prop. v. Chicago Zon. Bd. of Ap.

MARCH 21, 1969.

LION SPECIALTY & PROPERTIES, INC., A CORPORATION, PLAINTIFF-APPELLANT,

v.

CITY OF CHICAGO ZONING BOARD OF APPEALS, 320 PARKING, INC., ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County; the Hon. CHARLES S. DOUGHERTY, Judge, presiding. Affirmed and remanded.

STOUDER, J.

This is an appeal from a judgment of the Circuit Court of Cook County entered in an administrative review proceeding which judgment approved and confirmed an order of the City of Chicago Zoning Board of Appeals.

Upon application therefor and after notice and hearing, the Chicago Board of Zoning Appeals on August 25, 1967, granted a special use to 320 Parking, Inc. with respect to the premises located at 1-21 North Franklin Street and 226-234 West Madison Street, Chicago, Illinois, for the purpose of locating and erecting a nine-level, self-parking facility thereon. Plaintiff, Lion Specialty & Properties, Inc., was duly notified of the application for special use, appeared at the hearing and after entry of the order approving such special use, filed its complaint in the Circuit Court of Cook County under the Administrative Review Act seeking to reverse the order of the Chicago Zoning Board of Appeals.

The complaint for review alleges in paragraph one the entry of the order granting the special use as heretofore described. In paragraph two it is alleged that the plaintiff, being the owner of the immediately adjacent premises improved with an office building, was affected by the order. Paragraph three alleges that the decision of the Zoning Board was improper because one, it was not in accord with the law and the facts, two, plaintiff was denied due process of law and three, the Board refused plaintiff an opportunity to submit evidence, limited plaintiff's right of cross-examination and conducted an ex parte examination of City Officials who did not testify at the hearing.

The Chicago Board of Zoning Appeals duly filed the record in the cause together with its answer which merely asked that the complaint for review be dismissed and that the order of the Board be approved. LaSalle National Bank as Trustee, and 320 Parking, Inc., filed an answer admitting the allegations of paragraphs one and two of the complaint but denying the allegations of paragraph three thereof.

Pursuant to the petition of LaSalle National Bank as Trustee, the trial court set the matter for hearing on its merits for October 25, 1967, at 2 p.m. Immediately thereafter the plaintiff moved the trial court to continue the final hearing to a later date and in the motion the plaintiff also requested permission to take certain depositions. Hearing on the motion was successively postponed because of the absence of the trial judge until the morning of October 25, 1967, at the hour of 9 a.m., being the same date but at an earlier time than the case had been set for hearing on its merits. On the morning of October 25, 1967, the trial court heard arguments in favor of and in opposition to plaintiff's motion for continuance and for leave to take depositions. The trial court denied the plaintiff's motion for continuance and for leave to take depositions. The trial court denied the plaintiff's motion and the propriety of such ruling is not questioned on this appeal. However after disposing of the motion, the trial court proceeded to approve the order of the Zoning Board of Appeals without, as alleged on this appeal by the plaintiff, holding any hearing thereon or permitting arguments with reference thereto.

On appeal to this court plaintiff's only assignment of error is that the trial court failed to hold a hearing on the complaint for review as required by the Administrative Review Act, Ill Rev Stats 1967, c 110, section 274 (§ 11).

Defendant, in support of the judgment of the trial court, argues that plaintiff's complaint for review was wholly insufficient to warrant review by the trial court. Further, according to defendant, plaintiff was accorded an adequate hearing and in any event, plaintiff has failed to show that its rights were prejudiced by the trial court's action which is required before reversal of the trial court's action is justified.

The first question which we will consider is defendant's assertion that plaintiff's complaint for review under the Administrative Review Act is insufficient and because of such insufficiency plaintiff lacks any standing in this court to complain of the trial court's action.

The sufficiency of the complaint was not challenged by defendant in the trial court by either motion or answer and accordingly the initial question is whether this issue is appropriately raised for the first time on review.

Although defendant relies on Rosenfeld v. Zoning Board of Appeals, 19 Ill. App.2d 447, 154 N.E.2d 323, and a quotation therefrom, we believe that both the quotation and the conclusions of the court in Rosenfeld are contrary to the position asserted by defendant. In Rosenfeld the court stated, "Plaintiffs, however, must plead (Winston v. Zoning Board of Appeals of Peoria County, 407 Ill. 588, 95 N.E.2d 864) and prove (Moran v. Zoning Board of Appeals of City of Chicago, 17 Ill. App.2d 280, 149 N.E.2d 480; 222 East Chestnut St. Corp. v. Board of Appeals of City of Chicago, 14 Ill.2d 190, 152 N.E.2d 465) their interest in maintaining this action. We think defendants have waived this objection to the complaint by not raising the question of plaintiffs' interest at the trial. Anson v. Haywood, 397 Ill. 370, 380, 74 N.E.2d 489. They have not waived the point as to the proof." With respect to its observation that proof of the allegations could not be waived, the principal issue in the case, the court in Rosenfeld further observed that a complainant could not be expected to make such proof where the Administrative Board had not permitted evidence to be introduced in support thereof.

Section 45 of the Civil Practice Act (Ill Rev Stats 1967, c 110, § 45) provides "All objections to pleadings . . . be raised by motion" which "shall point out specifically the defects complained of, and shall ask for particular relief." Section 42 of the Civil Practice Act provides that "all defects in pleadings, either in form or substance, not objected to in the trial court are waived"; it also recites that "no pleading is bad in substance which contains such information as reasonably informs the opposite party of the nature of the claim or defense which he is called upon to meet."

[1-3] The foregoing provisions recognize the salutory rule that controversies ought to be resolved on the basis of issues joined and further that where deficiencies in pleadings are claimed, a party ought to be permitted to amend his pleadings to obviate such deficiency. Where the question of the insufficiency of a pleading is raised for the first time on appeal such opportunity to amend is lost and issues may be submitted for resolution which were not deemed of sufficient importance to be raised in the trial court. Accordingly, it appears that the rule to be applied is that such question will only be considered when the complaint fails wholly to state a cause of action and will not be considered when the allegations are merely defectively or imperfectly set forth. See Fisher v. Illinois Terminal R. Co., 350 Ill. App. 555, 113 N.E.2d 344; Grizzard v. Matthew Chevrolet, 39 Ill. App.2d 9, 188 N.E.2d 59 and Boyle v. Veteran Hauling Line, 29 Ill. App.2d 235, 172 N.E.2d 512. Thus the issue is not whether a trial court would or should have granted a motion to strike or dismiss had the same been made, but whether the complaint wholly fails to set forth a cause of action.

We believe the complaint alleged substantially, although somewhat imperfectly, a basis for review of the Zoning Board decision and that defendant waived the deficiencies not ...


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