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Somerset House, Inc. v. Board of Appeals

DECEMBER 30, 1970.

SOMERSET HOUSE, INC., PLAINTIFF-APPELLEE,

v.

BOARD OF APPEALS OF THE CITY OF CHICAGO ET AL., DEFENDANTS — (BOARD OF APPEALS OF THE CITY OF CHICAGO ET AL., DEFENDANTS-APPELLANTS.)



APPEAL from the Circuit Court of Cook County; the Hon. EDWARD F. HEALY, Judge, presiding.

MR. PRESIDING JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT:

The plaintiff, owner of hotel premises at 5009 Sheridan Road, Chicago, filed an application with the Zoning Administration of the City of Chicago for a special use permit to operate the building as a sheltered care home. When that application was denied an appeal was taken to the Zoning Board of Appeals, which appeal was also denied on September 25, 1969. The plaintiff then brought an administrative review action in the Circuit Court. On December 25, 1969, the Circuit Court entered an order reversing the Zoning Board of Appeals and directing the Zoning Administrator to approve the application for special use. The defendants brought this appeal from that order of the Circuit Court.

• 1 The property has been used as a hotel for 40 years, and the plaintiff now seeks to spend approximately $900,000 in remodeling the structure to comply with statutes and ordinances governing sheltered care homes. The building is not presently zoned in a proper classification to allow such use, and a special permit must be obtained before it could be so converted. The standards governing the issuance of such a permit are set out in section 11.10-4 of the Chicago Zoning Ordinance, chapter 194A, the Comprehensive Amendment thereto, adopted May 29, 1957:

No special use shall be granted by the Zoning Board of Appeals unless the special use:

(1) a. Is necessary for the public convenience at that location;

b. Is so designed, located and proposed to be operated that the public health, safety and welfare will be protected; and

(2) Will not cause substantial injury to the value of other property in the neighborhood in which it is to be located; * * *

It is the plaintiff's burden to prove that all standards established by the special use section will be met. Allen v. Board of Appeals of the City of Chicago, 118 Ill. App.2d 376, 381.

In its brief plaintiff first urges that sheltered care homes should be permitted uses in B2 zoning districts, which is the classification of the subject property; that there is no valid reason for requiring a special use permit to convert the subject property. While this raises some interesting questions, we must agree with the view taken by defendants in their reply brief. The matter was not presented to nor ruled upon by either the Board of Appeals or the Circuit Court. "Assignments of error must be based upon the record itself and not merely upon arguments of counsel or upon the fact that the question might have been raised in the pleadings or during the trial." Zehender & Factor, Inc. v. Murphy, 386 Ill. 258, 261.

• 2 Courts of review are obviously intended to review matters upon which rulings have already been made. Unless each adversary has had the opportunity of presenting his evidence and arguments to the lower tribunal, and unless a decision has been made on the point, it would be improper for an appellate court to consider it. In Woman's Athletic Club v. Hulman, 31 Ill.2d 449, at 454, the Supreme Court held that "the theory upon which a case is tried in the lower court cannot be changed on review and that an issue not presented to or considered by the trial court cannot be raised for the first time on review. (Benson v. Isaacs, 22 Ill.2d 606, 610.)" See also City of Sullivan v. Central Ill. Co., 287 Ill. 19, 22, where the opinion states [in deciding whether or not jurisdiction was established in the Supreme Court on direct appeal from the Circuit Court], "it must appear from the record, and not merely from the statement of counsel and argument, that some question is involved which authorized the appeal."

We take the view that the relevant question in this case is not whether a sheltered care home should be a permitted use in a B2 zoning district, but rather whether the plaintiff adduced sufficient proof at the Zoning Board hearing to entitle it to the special use permit. Interestingly, one of the arguments in defendants' brief is captioned "THE PLAINTIFF HAS NOT PROVED THAT IT IS ENTITLED TO A SPECIAL USE TO OPERATE A SHELTERED CARE HOME AT THE PROPOSED SITE." However, the actual argument merely points to all the objections made at the hearing by various persons, including the alderman, the president of the Argyle Improvement Association, and the executive director of Chicago Uptown Commission. We feel this approach was taken in an attempt by defendants to overwhelm the court by pointing out all the objections to the proposed use, since they realized the plaintiff had proved its case.

At the hearing, Bernice Hover, Chief of the Bureau of Institutional Care for the City of Chicago, testified for the plaintiff, and explained the facilities offered by various types of homes. She stated that sheltered care homes do not provide nursing care and are not intended for treatment of mental patients or alcoholics. She also testified that although there are 27 pending applications for sheltered care homes in Chicago, and despite the public demand for such facilities, there are none in the Uptown area. Mrs. Hover explained that sheltered care homes provide for people who cannot otherwise adequately care for themselves.

Donald H. Kemp, a real estate appraiser, testified that the area in which the Somerset Hotel is situated does not require apartment hotels; that he had a $1,300,000 commitment for a construction loan to rehabilitate the property and a commitment for one billion dollars from insurance companies to rehabilitate buildings in the area. He stated that the subject property is now worth $550,000; it is rapidly decreasing in value; as a sheltered care home it would be worth $2,000,000, and would be best utilized for that purpose.

Dr. Seymour Hershman, one of the principals interested in converting the subject property into a sheltered care home, testified that he hopes to develop a "de luxe" facility from which he could make a profit. He stated that the home would save money for both the State and the residents and its existence would release ...


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