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Osina v. City of Chicago

MAY 14, 1975.

FEIWEL OSINA ET AL., PLAINTIFFS-APPELLEES,

v.

THE CITY OF CHICAGO ET AL., DEFENDANTS-APPELLANTS. — (DAVID L. ARKIN ET AL., DEFENDANTS.)



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

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

The plaintiffs, Feiwel Osina, Miriam Osina, Birchwood Beach Convalescent Homes, Inc., and Cosmopolitan National Bank of Chicago, as trustee under Trust No. 8470, brought this action in the Circuit Court of Cook County against the defendants, City of Chicago, John P. Maloney, Zoning Administrator of the City of Chicago, Morgan M. Finley, Jack Guthman, Thomas P. Keane, John P. Kringas and Cecil A. Partee, together constituting the Zoning Board of Appeals of the City of Chicago, as well as named citizens of the City of Chicago.

This suit was brought to reverse the decision of the Zoning Board of Appeals denying plaintiffs' application for a special use permit for the construction of a five-story building to be used as a nursing home in an R-4 General Residence District. The circuit court found for the plaintiffs and directed the zoning administrator of the City of Chicago to process plaintiffs' building application for the construction of the nursing home. The defendants appeal from that judgment.

The issues for review are whether the circuit court found that the decision of the Zoning Board of appeals is against the manifest weight of the evidence; whether the plaintiffs proved by clear and convincing evidence that the proposed use meets the standards specified by the zoning ordinance for the issuance of a special use permit; and whether the Planned Unit Development and the Lakefront Protection ordinances may be retroactively applied to the plaintiffs' use.

The plaintiffs are owners of four contiguous parcels of land generally referred to as 7350, 7360, 7364 and 7372 North Sheridan Road in the City of Chicago. The property is improved with four older buildings and has a frontage of 375 feet between Sherwin Avenue on the south and Jarvis Avenue on the north. In 1959 the plaintiffs acquired and began operating the two nursing homes at 7350 and 7364 North Sheridan Road. The home at 7350 has facilities for 39 patients, and the one at 7364 has facilities for 32 patients. The property at 7360 was acquired by the plaintiffs in 1964 and is operated as a boarding house for 25 persons. It is not licensed as a nursing home. The property at 7372 was acquired in 1968 and is operated as an apartment building.

The properties are located in an area zoned R-4 General Residence District, which is composed of older, single-family dwellings, older style apartment buildings, and some newer four-plus-one apartment buildings. Under the 1957 Comprehensive Amendment of the Chicago Zoning Ordinance, nursing homes were classified as permitted uses in the R-4 District, but the 1970 amendment to the ordinance changed the classification of nursing homes from a permitted use to a special use.

In January of 1972, the plaintiffs applied for a special use permit to construct a modern five-story building housing 225 patients. They proposed to demolish the existing structures and erect a nursing home which conformed to the rules and regulations of the Department of Public Health of the State of Illinois and the Department of Health of the City of Chicago, both of which required an upgrading of the present facilities.

On February 18, 1972, after a hearing, the Zoning Board of Appeals denied the application, stating in part, "the proof presented indicates that although there is a city-wide need for modern extended care facilities, statistics from the Chicago Board of Health show that the Rogers Park area has a ratio of 15.9 beds per 1000 population as compared to the city-wide ratio of 3.9 beds per 1000 population; that there are eight existing nursing homes, convalescent homes and homes for the aged within a three block radius of the subject site; that there was no evidence to indicate that the proposed use is necessary for the public convenience at this location; nor that the expansion of such use at this location would not cause substantial injury to the value of other property in the neighborhood * * *."

The Circuit Court of Cook County reversed the decision of the Zoning Board of Appeals and ordered the zoning administrator of the City of Chicago to process plaintiffs' building application for the construction of a five-story nursing home on the premises at 7350-7372 North Sheridan Road. The order of the court stated in part:

"* * * and the Court having considered said Complaint and having fully examined the record made before said Zoning Board, as aforesaid, and the law pertaining thereto, and the Court having heard the arguments of counsel and being fully advised in the premises, the Court Finds the issues in favor of the plaintiffs and against the defendants."

The defendants first contend the trial court did not establish that the decision of the Board of Appeals was contrary to the manifest weight of the evidence and went beyond the authorized scope of judicial review by substituting its judgment for that of the Board. They reach this conclusion because the order of the court did not state that the decision of the Zoning Board of Appeals was "against the manifest weight of the evidence." It simply stated, "the Court finds the issues in favor of the plaintiffs and against the defendants."

In the case of St. James Temple of the A.O.H. Church of God, Inc., v. Board of Appeals (1968), 100 Ill. App.2d 302, 309, the court stated:

"On administrative review, the court's function is limited to ascertaining if the findings and decision of the administrative agency are against the manifest weight of the evidence."

In Roosevelt Memorial Hospital v. Chaddick (1970), 131 Ill. App.2d 82, relied on by the defendants, the court made no express determination that the finding of the Board was against the manifest weight of the evidence. The reviewing court reversed the trial court, but based its decision on the failure of the hospital to offer evidence with respect to the necessity for the public convenience ...


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