The opinion of the court was delivered by: Presiding Justice Hoffman
APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY HONORABLE THOMAS A. HETT, JUDGE PRESIDING.
The plaintiff, North Avenue Properties, L.L.C., appeals from a circuit court order confirming two decisions of the Zoning Board of Appeals of the City of Chicago (Board). For the reasons which follow, we: reverse the order of the circuit court; set aside the decisions of the Board; and remand this matter to the Board for further proceedings.
The facts relevant to the disposition of this appeal are not in dispute. GDH Investments, L.L.C. (GDH), is the owner of the property located at 934-44 West North Avenue in Chicago (hereinafter referred to as "the Property"). GDH applied for zoning certifications from the Zoning Administrator of the City of Chicago (Administrator) to allow the Property, which is located in a Planned Manufacturing District, to be used for retail sales and to allow the premises located at 955 West Weed Street, which is located in a General Manufacturing District, to be used as an accessory parking facility for the Property. The Administrator denied both applications on the basis that the proposed uses for which GDH sought certification did not conform to the Chicago Zoning Ordinance (Ordinance)(Chicago Municipal Code §17-1 et seq. (1999)). Thereafter, GDH filed applications with the Board for the approval of zoning variations in the nature of special uses to permit the two properties to be used for the above-stated purposes. The Board assigned its calendar number 374-97-S to the application relating to the use of the Property and number 375-97-S to the application relating to the use of 955 West Weed Street.
Pursuant to section 11.7-2 of the Ordinance (Chicago Municipal Code §17-11.7-2 (1999)), the plaintiff, along with other owners of real estate located within 100 feet of the lot lines of the Property and 955 West Weed Street, was notified of GDH's applications for zoning variations. The plaintiff filed a written objection to the applications and appeared before the Board in support of the objection.
After conducting hearings on October 17 and December 19, 1997, the Board granted both of GDH's applications for variations. Thereafter, the plaintiff timely filed a complaint for administrative review in the circuit court, seeking an order reversing the decisions of the Board and denying both of GDH's applications for variations. After striking portions of the plaintiff's complaint and a number of the exhibits attached thereto, the circuit court denied the relief requested by the plaintiff and confirmed the Board's decisions. This appeal followed.
The plaintiff contends that the circuit court erred in striking portions of its complaint and confirming the Board's decisions.
The plaintiff argues that the circuit court should have set aside the Board's decisions because the decisions:
1) were based on the erroneous finding that GDH's applications for zoning variations satisfied the requirements of the Ordinance; and 2) were "tarnished" because a member of the Board, its chairman, was biased against the plaintiff.
In an administrative review proceeding, the function of this court is the same as that of the circuit court, namely, to determine, based on a review of the record which was before the administrative agency, whether the agency's findings and orders are against the manifest weight of the evidence or whether the agency acted arbitrarily, without cause, or in clear abuse of its discretion. Leong v. Village of Schaumburg, 194 Ill. App. 3d 60, 64, 550 N.E.2d 1073 (1990). A finding of fact is against the manifest weight of the evidence if all reasonable people would agree that the finding is erroneous and that the opposite conclusion is clearly evident. Danko v. Board of Trustees of the City of Harvey Pension Board, 240 Ill. App. 3d 633, 645, 608 N.E.2d 333 (1992). Unless we are able to conclude that the agency's findings of fact are against the manifest weight of the evidence, we must accept those findings as prima facie true and correct. 735 ILCS 5/3-110 (West 1998). We need not, however, give the same deference to an administrative agency's conclusions of law. Raintree Health Care Center v. Illinois Human Rights Comm'n, 173 Ill. 2d 469, 479, 672 N.E.2d 1136 (1996). Since the construction of a statute or ordinance is a question of law, our review is de novo. MacDonald v. Board of Trustees of the Park Ridge Police Pension Fund, 294 Ill. App. 3d 379, 382, 690 N.E.2d 636 (1998). An administrative decision based upon an agency's erroneous construction of an ordinance, therefore, will not stand. Kaloo v. Zoning Board of Appeals, 274 Ill. App. 3d 927, 934, 654 N.E.2d 493 (1995).
When reviewing the decision of an administrative agency, we are limited to reviewing the record which was before the agency and may not consider "new or additional evidence in support of or in opposition to any finding, order, determination or decision of the administrative agency". 735 ILCS 5/3-110 (West 1998); Abrahamson v. Illinois Department of Professional Regulation, 153 Ill. 2d 76, 88, 606 N.E.2d 1111 (1992). Additionally, arguments not raised before the administrative agency are waived for purposes of administrative review. Texaco-Cities Service Pipeline Co. v. McGaw, 182 Ill. 2d 262, 278-79, 695 N.E.2d 481 (1998). A simple application of these standards for review allows us to dispose of two of the plaintiff's assignments of error in a summary fashion.
In response to GDH's motion to strike portions of the plaintiff's complaint, the circuit court found that 10 paragraphs set forth in the complaint and 5 exhibits attached thereto asserted facts and matters outside of the record before the Board and, as a consequence, struck the paragraphs and exhibits from the complaint. The plaintiff asserts that the circuit court erred in striking the material from its complaint, arguing that the court was entitled to consider the matters alleged and the supporting exhibits as they are "readily verifiable" and "capable of instant and unquestionable demonstration." We disagree.
The paragraphs stricken from the plaintiff's complaint contain allegations of oral and written communications in the nature of requests for information from the plaintiff's attorney to GDH's attorney and GDH's attorney's responses to those requests. The paragraphs alleged that, via these communications, the plaintiff's attorney had requested information relating to the applications, such as copies of the proposed site plan for the Property and the lease for the parking spaces at 955 West Weed Street. The stricken exhibits consist of copies of correspondence from the plaintiff's attorney to GDH's attorney seeking information, written responses from GDH's attorney, and a copy of a site plan for the Property. None of the stricken exhibits or the factual assertions set forth in the stricken paragraphs are found in the record before the Board. Nonetheless, the plaintiff contends that the circuit court was entitled to consider these matters in determining whether the plaintiff was denied due process and an ability to properly present its objections to GDH's applications by reason of the "actions and stonewalling tactics of GDH's counsel." According to the plaintiff, the Board refused to allow it to enter evidence of such actions into the record. We, however, find nothing in the record to suggest that the plaintiff ever attempted to do so.
At the conclusion of the hearing on October 17, 1997, the plaintiff requested a continuance, informing the Board only that it anticipated presenting two witnesses whose combined testimony would take about 45 minutes. The Board granted the continuance, and the matter was set over to December 19, 1997. When the matter was first called on December 19, the plaintiff's attorney informed the Board that he had received GDH's modified parking plan only two days earlier and, due to his having been out of town, had not had an opportunity to review it. The plaintiff's attorney stated that he would like an opportunity to review the plan with the plaintiff. GDH's attorney objected to any further continuances of the matter.
"I'm sorry his clients are out of town, but he's known about this for two months. The plans we sent over as soon as they were ready, they made no substantive changes in the issues involved, or in the drawings, except we now show the second tenant on there, basically, and there would be no basis to continue this. I don't think ...