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11/24/87 John Kuney Iii, v. the Zoning Board of

November 24, 1987

JOHN KUNEY III, PLAINTIFF-APPELLANT

v.

THE ZONING BOARD OF APPEALS OF THE CITY OF DE KALB ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

516 N.E.2d 850, 162 Ill. App. 3d 854, 114 Ill. Dec. 695 1987.IL.1744

Appeal from the Circuit Court of De Kalb County; the Hon. Rex F. Meilinger, Judge, presiding.

APPELLATE Judges:

JUSTICE WOODWARD delivered the opinion of the court. HOPF and DUNN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WOODWARD

Plaintiff, John Kuney III, was denied a building permit by Roger Hopkins, the chief building enforcement officer of the City of De Kalb. The denial was upheld by the De Kalb Zoning Board of Appeals (board), and the board's decision was affirmed by the circuit court for the Sixteenth Judicial District, De Kalb County. Plaintiff appeals from the circuit court's order, contending that he is not bound by the restrictions on the property and that the trial court's decision was against the manifest weight of the evidence.

The property at issue in the present case is a 21-unit apartment building with a parking lot and green open space, commonly known as 902-914 Ridge Drive in De Kalb, Illinois. The property is one part of an area known as Flagg Fraternity Quadrangle (Quadrangle) in De Kalb. In June 1968, a plat was recorded which indicated the proposed development plan for the Quadrangle. On the plat was an "Open Space Covenant," which restricted development in the Quadrangle. The plat was filed by Ropa, Inc., and the owners of the property were Ropa, Inc., Paul Alongi, Neil Scott, and Robert W. Hultgren.

Early in 1977, a developer employed Kuney to design a 30-unit apartment building for the property that is the subject of this action. After negotiations between the developer and the city, Kuney was asked to redesign the building into a 21-unit apartment building, which he did. In March 1977, Ropa, Inc., filed a second plat of the Quadrangle. Kuney and his partner purchased the property in question on May 3, 1977, and the city approved Ropa's plat on May 9, 1977. The plat was recorded on May 25, 1977.

In November 1985, Kuney filed an application for a building permit to add 15 units to the existing apartment building. After making three sets of revisions based on requests made by the city, he submitted plans on March 7, 1986. On approximately April 1, 1986, Kuney was told that he needed to obtain a special use permit from the city. On May 5, Kuney appealed this decision to the board, which upheld the denial after a hearing. Kuney then filed a complaint for administrative review pursuant to section 3-103 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 3-103) to have the board's decision reviewed and reversed. The circuit court upheld the decision, and this appeal ensued.

At the outset, this court considers the issue of whether the plaintiff exhausted his administrative remedies before filing his claim. While this issue was not raised during any of the previous proceedings, the defendants correctly maintain that an appellee may defend a judgment by raising a previously unruled-upon issue if the necessary factual basis for determining the issue is in the record. Kravis v. Smith Marine, Inc. (1975), 60 Ill. 2d 141, 147; Jupiter Orrington Corp. v. Zwiefel (1984), 127 Ill. App. 3d 559; Allender v. City of Chicago Zoning Board of Appeals (1978), 63 Ill. App. 3d 204, 208.

The defendants argue that Kuney did not exhaust his administrative remedies before filing his claim because he could have appeared before the De Kalb city council to obtain a special use permit. Their basis for this argument is that the property is subject to a restriction which required the owner to obtain city council approval before building any structures on the property. Therefore, because Kuney did not appear before the city council, defendants contend that he did not exhaust his administrative remedies. We disagree.

The doctrine of exhaustion of remedies is a basic precept of administrative law. (Illinois Bell Telephone Co. v. Allphin (1975), 60 Ill. 2d 350, 357-58.) However, exceptions to this rule have been recognized in many instances. (Illinois Bell Telephone Co. v. Allphin (1975), 60 Ill. 2d 350, 358.) One exception is when multiple remedies exist before the same zoning board and one remedy has been exhausted. (Fredman Brothers Furniture Co. v. Department of Revenue (1985), 109 Ill. 2d 202, 214; People ex rel. Fahner v. American Telephone & Telegraph Co. (1981), 86 Ill. 2d 479, 487; Herman v. Village of Hillside (1958), 15 Ill. 2d 396, 408.) In Village of Cary v. Pollution Control Board (1980), 82 Ill. App. 3d 793, the court held that Cary was not required to petition for a new variance before contesting a variance action taken by the Pollution Control Board. Village of Cary v. Pollution Control Board (1980), 82 Ill. App. 3d 793, 799.

In the present case, Kuney applied for a building permit, and when that permit was denied, he appealed the decision to the zoning board of appeals and then to the circuit court. While plaintiff could have chosen to appear before the city council, he opted for an alternative administrative proceeding and had exhausted those remedies. In addition, plaintiff argues to this court that the restriction does not apply to him. To force plaintiff to apply for a special use permit before filing his claim before this court would not only require him to pursue alternative remedies before appeal, but would be tantamount to a forced admission that the restriction applies to him. This would be a "strained application of the exhaustion doctrine." (Village of Carey v. Pollution Control Board (1980), 82 Ill. App. 3d 793, 799.) Therefore, we find that this case is properly before the court.

The primary issue to be determined in this case is whether the special use restrictions contained in the 1968 and 1977 plats of the relevant property apply to Kuney. Plaintiff's attack on the plats is twofold. First, plaintiff argues that the plats are not proper statutory plats; thus, the covenant is ineffective. Second, Kuney contends ...


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