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Speck v. Zoning Bd. of Appeals

OPINION FILED DECEMBER 23, 1980.

CHARLES SPECK ET AL., PLAINTIFFS-APPELLEES,

v.

ZONING BOARD OF APPEALS OF THE CITY OF CHICAGO ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. RICHARD L. CURRY, Judge, presiding.

MR. JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:

Rehearing denied March 12, 1981.

Amalgamated Trust and Savings Bank, as trustee, Edward Ochylski, Jr., and Daniel L. Houlihan (hereinafter called the applicants), filed an application for a variation in the nature of a special use for the approval of the location and erection of an addition to the south of an existing building to be used as a meat packing plant, including slaughtering, rendering, cutting and boning facilities in an area zoned manufacturing. The plaintiffs-appellees (hereinafter called the objectors) intervened as objectors in the proceeding. With one exception, they are residents living near the property. After a hearing, the zoning board of appeals granted the application. Upon appeal by the objectors, the circuit court found that while the determination that the proposed use was necessary for the public convenience was supported by the evidence, the other findings were not supported by the evidence and the board failed to set forth findings of fact with respect to the requirements of the ordinance. Accordingly the circuit court ordered that the zoning board's decision be reversed and the special use variation requested by the applicants be denied. The zoning board of appeals but not the applicants appealed. The objectors did not cross-appeal. We hold that:

(1) the zoning board of appeals had standing to appeal from a reversal of its decision;

(2) any error in the hearing examiner's decision that there was no continuing nonconforming use was clearly waived by the applicants at the hearing before the zoning board of appeals;

(3) the applicants failed to meet their burden of proving that the operation of the slaughterhouse would conform to the applicable regulations, and the zoning board of appeals failed to make the necessary findings, indeed could not make them since insufficient evidence had been produced on those issues. Since it is clear that the applicants and the board believed that such evidence was not necessary and the legislature has given the consideration of these questions to the agency, we believe that justice is better served by a reversal of the board's decision and a remand to it for additional hearings and consideration of the necessary issues.

I.

• 1 When the appeal was filed in the circuit court, Daniel Houlihan filed his appearance for the applicants. William Quinlan filed his appearance as attorney for the zoning board of appeals and the enumerated members thereof. After the circuit court reversed the zoning board's judgment, Quinlan filed notice of appeal for "the defendants, Zoning Board of Appeals, et al." A copy of the notice was sent by Quinlan to Daniel L. Houlihan as attorney for plaintiff-appellee. Houlihan did not sign the notice of appeal nor did he at any time file a notice of appeal for the applicants. Houlihan has contended on appeal that the notice of appeal was for all parties. However, we cannot agree. Supreme Court Rule 303(c)(3) (Ill. Rev. Stat. 1977, ch. 110A, par. 303(c)(3)) requires that the notice of appeal contain the signature and address of each appellant or his attorney. The notice of appeal contained the signature neither of the applicants nor of their attorney. Furthermore, a copy of the notice was sent to Houlihan as attorney for plaintiff-appellee. This clearly indicates that Houlihan's clients were not considered by the appellants as part of the class of defendants and according to the notice of appeal it was "the defendants, Zoning Board of Appeals, et al." that were appealing. Since the filing of a notice of appeal is jurisdictional (Texaco, Inc. v. Barnes (1978), 60 Ill. App.3d 696, 377 N.E.2d 187), and the applicants never filed a notice of appeal, we agree with the objectors that their brief must be stricken.

The objectors further contend that the zoning board of appeals has no standing to appeal from the circuit court's reversal of the zoning board's decision. Obviously if the zoning board has no standing to appeal, this court has no jurisdiction over this case since, as we already ruled, the applicants, having failed to appeal, are barred from seeking review of the trial court's decision.

This State has not directly passed on the issue whether a zoning board of appeals has standing to appeal from a reversal of its own decision, although we note that in Cosmopolitan National Bank v. Zoning Board of Appeals (1978), 63 Ill. App.3d 926, 380 N.E.2d 940, a case was considered by the appellate court upon appeal by the zoning board of appeals, the question of standing apparently not having been raised by the parties. This question has been addressed in other States, however, with differing results.

A slight majority of the States that have addressed this issue have held that a zoning board of appeals or similar body has no standing to appeal a reversal of its own decision since it exercises quasi-judicial functions, has no interest in the proceeding other than to decide the case fairly and impartially and therefore is not aggrieved by the decision. (See, for example, Miles v. McKinney (1938), 174 Md. 551, 199 A. 540; Board of Adjustment v. Kuehn (1955), 132 Col. 348, 290 P.2d 1114; A. Di Cillo & Sons, Inc. v. Chester Zoning Board of Appeals (1952), 158 Ohio St. 302, 109 N.E.2d 8; Hassell v. Zoning Board of Review (1971), 108 R.I. 349, 275 A.2d 646; Appeal of Board of Adjustment (1934), 313 Pa. 523, 170 A. 867; Robert Louis Corp. v. Board of Adjustment (1971), 1 Pa. Cmwlth. 292, 274 A.2d 551; State ex rel. Bringhurst v. Zoning Board of Appeal & Adjustment (1941), 198 La. 758, 4 So.2d 820; River Oaks-Hyman Place Homeowners Civic Association v. City of New Orleans (La. App. 1973), 281 So.2d 293; Gilliam v. Etheridge (1942), 67 Ga. App. 731, 21 S.E.2d 556, and compare Minnesota Water Resources Board v. County of Traverse (1970), 287 Minn. 130, 177 N.W.2d 44.) A few cases (see, for example, Borough of Hasbrouck Heights v. Division of Tax Appeals (1958), 48 N.J. Super. 328, 137 A.2d 585; Altman v. School Committee (1975), 115 R.I. 399, 347 A.2d 37), none of which were zoning cases, have indicated that an exception to the rule of no standing would lie where (1) there would otherwise be no adversary because the agency was prosecutor as well as judge or (2) where the interest of the public in the litigation reaches out decidedly beyond that of the immediate parties and in connection with which the agency has a general public duty to perform. Neither of these exceptions would be applicable here.

Finally, certain courts>, recognizing that the agency is not merely quasi-judicial but that the agency actively represents the public interest, have held that the board has standing to appeal a reversal of its decision. (Rommell v. Walsh (1940), 127 Conn. 16, 15 A.2d 6; Zoning Board of Adjustment v. Dragon Run Terrace, Inc. (1965), 59 Del. 75, 216 A.2d 146; Board of Adjustment v. Stovall (1949), 147 Tex. 366, 216 S.W.2d 171; Cunningham v. Leimkuehler (Mo. App. 1955), 276 S.W.2d 633; Corbett v. Zoning Board of Appeals (1954), 283 App. Div. 282, 128 N.Y.S.2d 12.) As was stated in Rommell v. Walsh (1940), 127 Conn. 16, 21-22, 15 A.2d 6, 9:

"In some appeals from administrative boards the question at issue is of consequence only to certain parties who will be directly affected, as, for example, where the public utilities commission is called upon to apportion between a municipality and a railway company the cost of the construction of a highway bridge over a railway track. Norwalk v. Connecticut Co., 88 Conn. 471, 91 A. 442. In proceedings for the assessment of benefits and damages, the parties directly concerned are the property owners affected and the municipality which must bear the expense of the public improvement. In other cases, however, there is a definite public interest to be protected. This is true, for instance, of many orders of the public utilities commission, and is particularly true with respect to zoning regulations. In appeals of this type, the public interest should be represented. In appeals in zoning cases the municipality might no doubt properly do this. However, under most, if not all, of our municipal charters, the function of protecting and advancing the public interest in establishing and maintaining a proper and adequate zoning system is entrusted to certain boards, which, in that respect, exercise a large discretion. While these boards have ordinarily no corporate existence as such but are merely agencies of the municipality, and while they have no direct interest in the litigation, it would be a logical conclusion that because of the function they perform they should represent the public interests entrusted to them in appeals taken from their decisions.

Administrative boards differ radically from courts> because frequently in the performance of their duties they are representing such interests, whereas courts> are concerned with litigating the rights of parties with adverse interests who appear before them. Appeals taken from decisions of such boards are in a very different category than are appeals taken from a lower to a higher court, where the lower court, having acted, ceases to have any interest in the controversy, direct or representative. An appeal from an administrative board is not the means by which jurisdiction of a cause is transferred from one tribunal to another, but is a process by which a court may be called upon, not to substitute its judgment for that of the board, but to determine whether the latter has acted legally and in a proper exercise of the discretion vested in it."

In Board of Adjustment v. Stovall, the board of adjustment had granted a permit to build a nonconforming use, just as the zoning board in the present case granted a permit for a special use. In that case, as in ours, the trial court reversed the order. The Texas Supreme Court, in finding that the board of adjustment had standing to appeal, stated at 147 Tex. 366, 371, 216 S.W.2d 171, 173:

"In determining whether a permit applied for under the quoted ordinance shall be granted or denied, the board is engaged in a delegated policy-making function, and it is not merely adjudicating private rights. The functions of the Board of Adjustment are an integral part of the system of zoning regulations. In order that zoning may work fairly, the zoning ordinance authorizes the granting of permits for variances, and the determination of the question whether such permits shall be granted or denied is an essential part of the proper administration of the zoning ordinance. The public, as well as the affected private parties, has an interest in upholding the order of the Board if it is valid, and the Board itself is the proper party to represent this public interest where its order is under review. In these respects the functions of the Board of Adjustment are analogous to the action of the Railroad Commission in granting or denying drilling permits as exceptions to Rule 37. While in those cases, as in the case now before us, private property rights are involved in the granting or refusal of permits, the Commission's action also has an important bearing on the whole scheme of conservation regulations."

• 2 We are persuaded by the reasoning in Rommell and Stovall that the zoning board has standing here to represent the public interest, particularly where, as here, the original applicant either cannot or no longer is interested in pressing its claim. Accordingly we hold that the zoning board's appeal is properly before us.

II.

The zoning board's first contention is that although it granted the applicants a special use, this was really unnecessary because the projected slaughterhouse operation was in fact a continuing nonconforming use. It is clear, however, from the record that this contention has been waived by the applicants' abandonment of this issue before the board. (Bethune Plaza, Inc. v. State of Illinois Department of Public Aid (1980), 90 Ill. App.3d 1133, 414 N.E.2d 183.) The applicants filed an application for a permit to expand and modernize the existing premises. The premises had been operated as a slaughterhouse from 1908 to about 1965 and had enjoyed the status of a legal nonconforming use. After about 1965 no slaughtering occurred on the premises which were used only for processing. This application was denied by the zoning administrator. At that point the applicants had two options. They could have appealed the adverse decision of the zoning administrator or they could have filed an application for a variation in the nature of a special use. The applicants took the latter route. When asked at the hearing:

"Chairman Guthman: Yes, but you, as a lawyer * * * decide whether you are going to a Special [Use] or just whether you are appealing —

Mr. Houlihan: I'm filing here for a Special Use. * * *.

Chairman Guthman: You are not suggesting here that we should decide this on the narrower ground of an appeal?

Mr. Houlihan: No I am not. I'm asking you to decide on the application for Special Use.

Chairman Guthman: That is what your case rests on? As you know, that's a much more burdensome task than the appeal route."

• 3 Because the applicants clearly chose not to follow the appeal route, and indeed did not produce any evidence to refute the zoning administrator's determination, the zoning board of appeals made no finding whether there was a legal nonconforming use. The board itself recognized this in the circuit court where it stated that the applicants were trying to raise an issue (that of nonconforming use) which was not before the court because it was not part of the record of the zoning board of appeals. Having chosen to abandon any right ...


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