Nevel, Marty v. Village Schaumburg , 297 F.3d 673 ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-1966
MARTY NEVEL and LAURA NEVEL,
Plaintiffs-Appellants,
v.
VILLAGE OF SCHAUMBURG, an Illinois Corporation;
AL LARSON, President of the Village of Schaumburg;
PAT RILEY, JACK SULLIVAN, GEORGE DUNHAM, TOM
DAILLY, MARGE CONNELLY, MARY ECKER, members
of the Board of Trustees of the Village of Schaumburg;
KEN FRITZ, Village Manager of the Village of
Schaumburg; and NELS HORNSTROM, Director of
Building and Code Enforcement for the
Village of Schaumburg,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 00 C 2957—Matthew F. Kennelly, Judge.
____________
ARGUED NOVEMBER 27, 2001—DECIDED JULY 26, 2002
____________
Before BAUER, HARLINGTON WOOD, JR., and MANION,
Circuit Judges.
HARLINGTON WOOD, JR., Circuit Judge. This dispute
stems from Marty and Laura Nevel’s desire to install vinyl
siding on a home they own which is located at 311 Lex-
2 No. 01-1966
ington Court within the Village of Schaumburg, Illinois
(“the Property”). Because the Property had been desig-
nated as a historic landmark, appellees, which include
the Village of Schaumburg (“the Village”) and various Vil-
lage officials, denied the Nevels’ request to install the vinyl
siding and revoked a building permit that had been ob-
tained by the Nevels’ siding contractor. Instead of chal-
lenging appellees’ actions in state court, the Nevels elected
to file a three-count federal suit, which alleged a claim for
denial of equal protection along with two state law claims.
The district court granted summary judgment in favor
of appellees on the equal protection claim and one of the
state law claims and then declined to exercise jurisdic-
tion over the remaining state law claim. The Nevels appeal.
BACKGROUND
The Property, known as the Kern-Schmidt mansion, was
a large home built in 1930. The Nevels purchased the
Property at an auction in March 1999. The Property’s pre-
vious owner, Girard Kretzschmar, had owned the Property
since February 1997.1 On December 9, 1997, the Village en-
acted an ordinance designating the Property as a historic
landmark (“the designation ordinance”). Under Village of
Schaumburg Ordinance § 31.136(A)(2), prior to enacting a
designation ordinance,
The Commission2 shall notify the owner of such prop-
erty of the proposed designation. The Commission shall
1
Kretzschmar received title to the property through a Trustee’s
Deed which was recorded with the Cook County Recorder on
February 26, 1997.
2
The Commission is the Olde Schaumburg Centre Commis-
sion, a thirteen-member panel designed to advise the Village
Board of Trustees on matters relating to historic preservation.
No. 01-1966 3
schedule a public hearing on the question of the pro-
posed designation, setting forth a date, time and place
and causing written notice to be given to the owner
or any person having a legal or equitable interest in
said property being proposed for designation.
In preparation for the hearing on the Property, the Village
sent the requisite notice to neighboring property own-
ers; however, instead of notifying Kretzschmar, the Village
sent certified mail notice to Alison Schmidt France, who
had owned the property prior to Kretzschmar.3 The Vil-
lage also published notice of the hearing in a local news-
paper. It is undisputed that the Village failed to serve
Kretzschmar with notice of its intent to designate the
Property as a historic landmark or to notify him of the
public hearing on the matter. In fact, Kretzschmar only
learned of the designation ordinance after it had been
enacted by reading about it in the newspaper. The land-
mark designation was, however, properly recorded with
the Cook County Recorder of Deeds.
Once a property is designated a historic landmark, Village
of Schaumburg Ordinance § 31.137 makes it
unlawful for any person to construct, move, alter,
change, make addition to, make any improvement
to, add structures or buildings on a lot or tract with a
designated historical landmark, demolish or remove
the exterior or any aspect of the exterior of any desig-
nated historic landmark, unless the village has previ-
ously authorized such work.
Despite these restrictions, there is nothing in the record
to indicate that Kretzschmar did anything to challenge
the historical designation of the Property once he became
aware of it.
3
The Village asserts that at the time the notice was sent France
was designated in township records as the owner of the Property.
4 No. 01-1966
When the Nevels purchased the Property, they were
aware that it had historical significance, but they claim
they were unaware of its historic landmark designation.
Additionally, the Nevels’ title insurer did not discover
the properly recorded landmark designation in its inves-
tigation prior to issuing its title insurance policy to the
Nevels. At the time the Nevels purchased the Property,
it had wood siding. In April 1999, Marty Nevel told
Village Senior Planner Timothy Teddy that he was con-
sidering covering the Property’s exterior with a stucco mate-
rial known as “dryvit” to eliminate a lead paint haz-
ard connected with the wood siding. According to the
Nevels, Teddy recommended against the dryvit and in-
stead suggested that the Nevels use either aluminum or
vinyl siding. The Nevels further assert that Teddy told
Marty Nevel to obtain building permits from the Village
when he was ready to begin the project but said noth-
ing about the Property’s historic landmark status.
The Nevels determined that it would cost $157,000 to
install vinyl siding on the Property compared to $250,000 to
replace the existing siding with new wood. The Nevels
decided to use vinyl siding and, in August 1999, hired
a contractor, Nu-Concepts, Incorporated, to do the job. The
Nevels then spent over $125,000 for siding materials, and
Nu-Concepts performed preparatory work on the Property.
The Nevels assert that Marty Nevel spoke with Teddy
about the siding again at the end of August 1999 and
contend that Teddy again told him to apply to the Village
for building permits, but did not mention the Property’s
landmark status.
On September 16, 1999, Village Planner Frank Robbins
called Marty Nevel at his office and inquired about the
Nevels’ plans for the Property. Robbins informed Marty
of the Property’s status as a historic landmark and told
Marty that the installation of vinyl siding would require
approval by the Village following a recommendation by
No. 01-1966 5
the Olde Schaumburg Centre Commission (“the Commis-
sion”). That same day, Marty Nevel sent a letter to Rob-
bins requesting approval to install vinyl siding. Robbins
also sent Marty Nevel a letter dated September 16th, as
a follow-up to the telephone conversation. After receiv-
ing Robbins’ letter, Marty Nevel understood that he would
need to appear before the Commission to seek approval for
the siding.
On September 17, 1999, Nu-Concepts applied for and
obtained a building permit from the Village to install vinyl
siding on the Property. The Nevels assert that, at the time
the permit was issued, Nu-Concepts was not aware of
Marty Nevel’s contacts with Robbins, and the Nevels did
not know Nu-Concepts was applying for a permit. The
permit was issued by a secretary in the Building and Code
Enforcement Department for the Village. The secretary
followed normal procedure in issuing the permit, check-
ing only to see if Nu-Concepts was licensed and bonded.
The secretary did not know that the Property was a desig-
nated landmark, and the permit process did not require
her to ask the applicant whether the proposed work was
being performed on a designated landmark.
With the permit in hand, Nu-Concepts began to in-
stall the vinyl siding. It is unclear from the record when the
Nevels found out that work had begun. Approximately two
to three weeks after installation had begun, Marty Nevel
informed Nu-Concepts that the Commission was going to
hold a hearing to determine what, if any, restrictions ap-
plied to the exterior of the Property. Marty Nevel did
not ask Nu-Concepts to stop working until the Commis-
sion’s determination was made, and the installation con-
tinued.
On October 3, 1999, Robbins sent a letter to Marty Nevel,
advising him that the Nevels’ request would be considered
at the Commission’s October 21, 1999 meeting. Robbins
6 No. 01-1966
stated that the Commission’s staff was going to recommend
that the Commission either deny the request for vinyl
siding or revoke “the landmark status of the property
as altered with the vinyl siding” based on the fact that
“preservation authorities generally concur that vinyl sid-
ing should not be applied to landmark buildings.”
On October 14, 1999, Teddy issued a report on behalf
of the Commission’s staff. Teddy’s report indicated that
the Nevels were requesting either approval to install
vinyl siding or revocation of the Property’s historic land-
mark designation which would remove the architectural
controls placed on the Property. Teddy recommended that
the Commission deny both requests. Robbins signed off on
Teddy’s report.
The Nevels were unable to attend the Commission’s
October 21st meeting, so a subsequent meeting was set
for November 4, 1999. On October 27, 1999, employees of
the Village’s Building and Code Enforcement Department
posted a stop work order on the Property. The Village,
however, did not revoke the September 17th building
permit before posting this stop work order. By this time,
Nu-Concepts had installed vinyl siding on a portion of the
Property’s exterior.
At the November 4th Commission meeting, the Nevels
requested either a variance allowing the use of vinyl sid-
ing or that the Property’s landmark status be removed.
Marty Nevel stated his goal was not to remove the land-
mark status; however, he added that he and his wife
wanted to remodel rather than restore the Property The
Nevels were planning on using the Property as their private
residence and were funding the project personally and not
pursuing any tax credits, and therefore, the landmark
status did not matter to them. At the conclusion of the
November 4th meeting, the Commission voted unanimously
to recommend the denial of both the request to remove the
No. 01-1966 7
landmark status and the request to allow vinyl siding. This
recommendation was conveyed to the Village Board. The
Village Board discussed the Nevels’ requests in a meeting
held November 9, 1999. The Board unanimously voted to
deny the request to revoke the Property’s historical land-
mark designation. The Board then denied the Nevels’ re-
quest to allow vinyl siding by a four to three vote.
Following the November 9th meeting, the Nevels, after
consulting with their attorney, resumed the installation
of vinyl siding, relying on the September 17th build-
ing permit that had not been revoked. Work continued un-
til December 20, 1999, at which point eighty-five percent
of the siding had been completed. On December 20th, em-
ployees from the Building and Code Enforcement Depart-
ment again posted a stop work order on the Property. The
Building and Code Enforcement Department also issued
and served citations to Marty Nevel and Nu-Concepts
for failure to obey a stop work order. Village Police or-
dered Nu-Concepts employees to leave the Property imme-
diately or face arrest. The Village then suspended Nu-
Concepts’ business license.
After December 20th, Village Police patrolled the Prop-
erty with instructions to arrest anyone caught working
on the siding. Nels Hornstrom, the Director of Building
and Code Enforcement for the Village, wrote Marty Nevel
a letter dated December 20, 1999 in which he stated
that because the stop work order had been ignored, no
certificate of occupancy would be issued for the Property.
Hornstrom stated that he had requested that water
and sewer services not be authorized for the Property
and that he would inform other utility companies that no
utility services could be begun. Hornstrom closed by in-
forming Marty Nevel that as the property owner he
was responsible for removing any of the siding that had
been placed illegally. On January 4, 2000, Marty Nevel was
served with additional citations for making nonconform-
8 No. 01-1966
ing alterations to a historic landmark and for performing
work without a building permit.
Trial on all of the citations began on February 10, 2000
before a Cook County Circuit Judge. Following two days
of trial, at the close of the Village’s case-in-chief, the
judge granted a directed verdict against the Village on all
of the citations, stating that no evidence had been presented
to show any misrepresentation in obtaining the September
17th building permit and that under Village ordinance, the
Village was required to revoke the building permit before
it could attempt to enforce a stop work order.
On February 16, 2000, Hornstrom sent the Nevels a let-
ter which purported to revoke the permit based on a mis-
representation of material fact in the application. In March
2000, the Village refused to replace a broken water meter
at the Property until the Nevels signed an acknowledg-
ment which stated, “The issuance of this permit does not
in any way waive the requirement that all exterior work
conform to the prior decision of the Village Board with
respect to the use of vinyl siding and stucco.” Several Vil-
lage officials also made comments to the press about the
controversy, stating that in their opinions, the focus of
the dispute had shifted from vinyl siding to what they
perceived to be the Nevels’ complete disregard for the law
and the Village Board’s decisions.
On May 16, 2000, the Nevels filed a three-count com-
plaint against appellees in the United States District
Court for the Northern District of Illinois. The complaint
alleged that the historical landmark designation ordi-
nance dealing with the Property was void ab initio based
on the Village’s failure to give requisite notice prior to its
enactment (Count I), that the revocation of the September
17th building permit was illegal as a matter of state law
(Count II), and an equal protection violation under 42
U.S.C. § 1983 (Count III). The district court granted
No. 01-1966 9
summary judgment in favor of appellees on Counts I and
III. The district judge then declined to exercise jurisdic-
tion over Count II’s state law claim, entering judgment
in favor of appellees on Counts I and III and dismissing
Count II for lack of subject matter jurisdiction. The Nevels
filed this timely appeal, challenging the district court’s
grant of summary judgment in favor of appellees on Counts
I and III.
ANALYSIS
We review the district court’s grant of summary judg-
ment de novo, viewing all of the facts and drawing all
reasonable inferences in favor of the nonmoving party, here
the Nevels. See Purze v. Village of Winthrop Harbor, 286
F.3d 452, 454 (7th Cir. 2002). Summary judgment is ap-
propriate when there is no genuine issue of material fact
and the moving party is entitled to judgment as a matter
of law. Fed. R. Civ. P. 56(c).
A. Validity of Historic Landmark Designation Ordinance
The Nevels contend that the designation ordinance en-
acted by the Village on December 9, 1997 was void ab
initio because the Village failed to give Kretzschmar prop-
er notice before enacting the ordinance. The Nevels assert
that this lack of notice violated (1) Village ordinance, (2)
state law, and (3) the due process clause of the United
States Constitution. Under Illinois law,
[a] court cannot handle matters which in effect are
attempts to overrule decisions of a legislative body
based upon alleged failure to follow requirements im-
posed by the body on itself. . . . We have authority
to invalidate legislation . . . only upon grounds that
the enactment violates a provision of the Federal or
State constitutions or violates the mandate of a State or
Federal statute.
10 No. 01-1966
City of Elgin v. County of Cook, 660 N.E.2d 875, 881 (Ill.
1995) (internal quotations and citations omitted).
In the present case, the Nevels cannot show a violation
of state or federal law. Any due process violation that
may have occurred affected Kretzschmar’s rights, not
those of the Nevels. The Nevels lack standing to raise
a claim based on the due process rights of a third party.
See Valley Forge Christian College v. Americans United
for Separation of Church and State, 454 U.S. 464, 474
(1982). Furthermore, the enactment of the designation or-
dinance did not violate any Illinois statute. The Nevels
contend that the notice provisions of Village of Schaum-
burg Ordinance § 31.136 are mandated by § 11-48.2-4 of the
Historic Preservation Division of the Illinois Municipal
Code, 65 ILL. COMP. STAT. 5/11-48.2-4. Section 11-48.2-4
provides, in relevant part:
No action taken by the municipality under this sec-
tion directing a private owner to do or refrain from
doing any specific thing, or refusing to permit a private
owner to do some specific thing he desires to do, in
connection with property designated by ordinance
hereunder, shall be taken by the municipality except
after due notice to such owner and opportunity for him
to be heard at a public hearing.
Appellees contend, and the district court held, that § 11-
48.2-4 is superceded by the later ordinance enacted under
the Village’s home rule power. The Nevels assert that § 11-
48.2-4 applies concurrently with regulations established by
home rule municipalities. Section 11-48.2-4 does not ex-
pressly address its applicability to home rule units.4
4
Home rule power was created by the Illinois Constitution of
1970, article VII, section 6(a) which provides, “Except as limited
by this Section, a home rule unit may exercise any power and
(continued...)
No. 01-1966 11
The Nevels rely on Patrick Media Group, Inc. v. Ad-Ex,
Inc., 608 N.E.2d 427 (Ill. App. Ct. 1992), in which the
Illinois Appellate Court held that, absent a clear statement
negating the state’s concurrent regulation, zoning provi-
sions of the Illinois Municipal Code which were amended
and reenacted after the effective date of the Illinois Con-
stitution of 1970 applied to home rule units. This ruling
was based on the fact that the Illinois Constitution of
1970 “allows home rule units to exercise powers concur-
rently with the State to the extent that the legislature
does not impose limitations on such concurrently exer-
cised powers or declares the State’s exercise to be exclu-
sive.” Id. at 429. The Nevels contend that under Patrick
Media Group, § 11-48.2-4 obligated the Village to enact
and comply with the notice provisions set out in Village
Ordinance § 31.136(A)(2). However, even assuming § 11-
48.2-4 applies concurrently with the Village’s home rule
power, the Nevels fail to show a violation of state law. Sec-
tion 11-48.2-4 requires “due notice” to the property own-
er. The Nevels cite no cases and cannot point to any-
thing in the statute to support their contention that due
notice under § 11-48.2-4 requires personal, written notice.
In the present case, it is undisputed that the Village gave
notice by publication prior to enacting the designa-
tion ordinance. The Nevels fail to show that this is insuffi-
cient under § 11-48.2-4; therefore, their claim that the
designation ordinance is void because it was enacted in
violation of state law fails.
We turn now to the Nevels’ contention that under In
re Application of the County Collector of Kane County,
547 N.E.2d 107 (Ill. 1989) (“County Collector”), the desig-
4
(...continued)
perform any function pertaining to its government and affairs
including, but not limited to, the power to regulate for the
protection of the public health, safety, morals and welfare . . . .”
12 No. 01-1966
nation ordinance should be invalidated because, in en-
acting it, the Village failed to comply with a “mandatory”
ordinance provision. The present case, however, is distin-
guishable from County Collector. In County Collector, the
Illinois Supreme Court invalidated a municipal ordi-
nance for failure to comply with publication and time-lapse
provisions created by municipal ordinance, based on a find-
ing that those provisions were mandatory. Id. at 112. The
ordinance at issue in County Collector expressly stated
that it would not become effective until “after . . . publica-
tion and lapse of time prescribed by law.” Id. at 110. The
applicable law was a municipal ordinance which set
out the options for publication and provided, “no . . . ordin-
ance shall take effect until ten (10) days after it is so
published.” Id. Despite this statement, the “ordinance
was not published nor was any lapse of time observed.”
Id. The court held that the failure to comply with the
publication and time-lapse provisions rendered the ordi-
nance ineffective based on the express statement in the
ordinance that it would not become effective until after
these provisions were fulfilled. Id. In the present case,
while § 31.136(A)(2) provides, “[t]he Commission shall
notify the owner . . . of the proposed designation,” it
does not state that the ordinance will not take effect until
such notice is given. Therefore, assuming County Collector
creates a mandatory ordinance provision exception to
the general rule that an ordinance may only be invali-
dated if it violates federal or state law, the notice provi-
sions in the present case cannot be considered manda-
tory under County Collector. The Nevels’ contention that
the designation ordinance was void based on the Village’s
failure to comply with a mandatory ordinance provision
fails.
While it is undisputed that the Village failed to comply
with its own procedural ordinances, this failure is insuffi-
cient under Illinois law to justify invalidation of the desig-
No. 01-1966 13
nation ordinance. The Nevels’ attempts to invalidate the
designation ordinance based on an alleged violation of
Kretzschmar’s due process rights also fails. The district
court correctly granted summary judgment in favor of
appellees on Count I.
B. Equal Protection Claim
In Count III of their complaint, the Nevels claimed that
appellees violated their constitutional right to equal pro-
tection of the laws by denying their request to install
vinyl siding, issuing a stop work order without first re-
voking the building permit, revoking the building permit
following the state court decision, refusing to issue a per-
mit for a burglar alarm, and refusing to install a new
water meter. As a result of these alleged violations, the
Nevels sought to recover actual and punitive damages and
attorney’s fees pursuant to 42 U.S.C. § 1983. The Nevels
are proceeding under a “class of one” equal protection
theory as recognized by the Supreme Court in Village of
Willowbrook v. Olech, 528 U.S. 562 (2000). In order to
succeed under such a theory, the Nevels must show that
they were (1) “intentionally treated differently from oth-
ers similarly situated and that there is no rational basis
for the difference in treatment” or (2) “that the govern-
ment is treating unequally those individuals who are
prima facie identical in all relevant respects, and that
the cause of the differential treatment is a ‘totally illegiti-
mate animus toward the plaintiff by the defendant.’ ”
Albiero v. City of Kankakee, 246 F.3d 927, 932 (7th Cir.
2001) (citations omitted). Under the second approach, if
the government would have taken the action anyway, the
animus will not condemn the action. Id. “Ill will must be
the sole cause of the complained-of action.” Id.With respect to their request to install siding, the Nevels
assert that they were treated less favorably than the
14 No. 01-1966
owners of two similarly situated buildings who were
allowed to install vinyl or steel siding. First, the Nevels
point to a single family residence which was not a desig-
nated historic landmark but which was located within
the Olde Schaumburg Centre District, an area in which
alteration of building exteriors can be done only with
approval of the Village Board after recommendation by
the Commission. This property known as the “Carroll
house” was sided with vinyl siding in 1982. Property own-
er Jo Ann Carroll filed an affidavit stating that prior to
the installation of the siding, she and her husband ob-
tained a building permit from the Village but did not ob-
tain permission from the Commission or the Village Board
to install the siding. According to Carroll’s affidavit, at
no time has the Village either required the Carrolls to
obtain approval for the siding or requested that the siding
be removed.
The Nevels next point to a Village-owned building known
as “The Barn” which is a designated historic landmark
that is used for civic activities. The Barn is located on a
two-and-a-half acre plot outside of the Olde Schaumburg
Centre District. In 1990, the exterior of the Barn posed a
lead paint hazard, and the Village resided the Barn with
steel siding after the Commission recommended approv-
ing the installation of siding.
We will assume there is a triable issue as to whether
these two properties are similarly situated, although it is
fairly clear that the Carroll house is not. The Nevels at-
tempt to proceed under a totally illegitimate animus the-
ory, alleging that, absent personal animus toward them,
the Village would have granted their request to install
vinyl siding. The Nevels contend that the Village denied
their request not based on historic preservation consider-
ations but rather to punish them for beginning construction
prematurely. As evidence in support of their position, the
Nevels point to comments made by several of the Village
No. 01-1966 15
Trustees at and after the November 9th meeting. These
statements range from Trustee Marge Connelly’s comment
in voting against the Nevels’ request for siding that it
was clear to her that Marty Nevel was aware he needed
to get approval but proceeded with the siding before
obtaining that approval to Trustee Pat Riley’s comments
to the press in early 2000 that Marty Nevel was “a guy
who decided to violate the law” and “[n]owhere in this
country should the reward for violating a village ordinance
or law be a pat on the back, a sly wink and ‘Go ahead.’ ”
Under the totally illegitimate animus approach, a plaintiff
must show that the government action “ ‘was a spiteful
effort to ‘get’ him for reasons wholly unrelated to any le-
gitimate state objective.’ ” Albiero, 246 F.3d at 932 (quoting
Esmail v. Macrane, 53 F.3d 176, 180 (7th Cir. 1995)). In the
present case, the Village Board has a legitimate interest
in ensuring that its rules and regulations are upheld. Even
if it could be shown that the Board denied the Nevels’
request in order to punish them for beginning work on the
siding before receiving the requisite approval, this would
not constitute a totally illegitimate animus. The Nevels
cannot show an equal protection violation based on the
Village’s denial of their request to install vinyl siding.
Turning to the other alleged violations—issuing a stop
work order without first revoking the building permit,
revoking the building permit following the state court
decision, refusing to issue a permit for a burglar alarm, and
refusing to install a new water meter—the Nevels fail to
point to any similarly situated property owners who were
treated more favorably by appellees than they were. In
their brief on appeal, the Nevels make no comparisons
whatsoever, instead choosing to rely on the fact that ap-
pellee Hornstrom in his affidavit mentioned no examples
of cases in which he acted as he allegedly did in the pres-
ent case. The Nevels, however, have the burden of proof,
and after being confronted with a motion for summary
16 No. 01-1966
judgment, they had the responsibility of taking reasonable
steps to provide evidence to create a genuine issue of
material fact on the issue. Albiero, 246 F.3d at 933. “ ‘[A]
complete failure of proof concerning an essential element
of the [nonmovant’s] case necessarily renders all other
facts immaterial.’ ” Purze, 286 F.3d at 454 (quoting Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986)). Therefore, the
district court correctly granted summary judgment in favor
of appellees on the Nevels’ equal protection claim.
CONCLUSION
For the reasons set forth above, the decision of the district
court is AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-97-C-006—7-26-02