Lombard Historical Commission v. Village of Lombard ( 2006 )

No. 2--05--1180 filed: 7/14/06
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
LOMBARD HISTORICAL COMMISSION, ) Appeal from the Circuit
THE FRIENDS OF THE DU PAGE THEATRE, ) Court of Du Page County.
LTD., and PETE KRAMER, )
)
Plaintiffs-Appellants, )
)
v. ) Nos. 05--MR--1234
) 05--MR--1235
)
THE VILLAGE OF LOMBARD, THE )
LOMBARD VILLAGE PRESIDENT, )
and THE LOMBARD VILLAGE TRUSTEES, )
)
Defendants-Appellees )
)
(National Trust for Historic Preservation in the ) Honorable
United States and Landmarks Preservation ) Edward R. Duncan, Jr.,
Council of Illinois, Intervenors-Appellants). ) Judge, Presiding.
PRESIDING JUSTICE GROMETER delivered the opinion of the court:
Plaintiffs, the Lombard Historical Commission (which has since withdrawn as a party), Pete
Kramer, and The Friends of the Du Page Theatre, Ltd., filed in the circuit court of Du Page County
two petitions for mandamus, which were subsequently consolidated. The National Trust for Historic
Preservation in the United States and the Landmarks Preservation Council of Illinois, intervened in
the action shortly thereafter. The trial court dismissed plaintiffs' and intervenors' (collectively,
plaintiffs') cause. It found that the Lombard Historical Commission, Kramer, and The Friends of the
No. 2--05--1180
Du Page Theatre lacked standing. As to the remaining plaintiffs, it concluded that they had
demonstrated no clear right to relief sufficient to support the issuance of a writ of mandamus. For
the reasons that follow, we affirm.
The instant dispute arises out of the Village of Lombard's decision to demolish the Du Page
Theatre, which has stood in Lombard since 1928 and is currently owned by the Village. The
Lombard Historical Commission (Commission) sought to exercise its claimed authority to stay the
demolition for six months while it tried to find an alternative use for the theater. The Village
disregarded the Commission's attempt, and this action ensued. Plaintiffs sought to require
defendants, the Village and its president and trustees, to comply with a portion of a village ordinance
that, they claim, gave the Commission the authority it tried to exercise. The trial court dismissed
plaintiffs' cause for the reasons set forth in the preceding paragraph.
On appeal, plaintiffs raise a number of issues. First, they contend that the trial court erred in
finding that, under the village ordinance (Lombard Village Code '32.079(E)(3) (eff. February 10,
1982)), the Commission had no clear right to impose a stay of the demolition of the theater for the
purpose of a writ of mandamus. Second, they contest the trial court's rulings concerning standing.
As a preliminary matter, plaintiffs argue that the trial court should not have permitted defendants to
convert their motion, which was originally brought under section 2--615 of the Civil Practice Law
(735 ILCS 5/2--615 (West 2004)), into a section 2--619 motion (735 ILCS 5/2--619 (West 2004)). 1
They then argue that Kramer, The Friends of the Du Page Theatre, and the Commission all have
standing. As the Commission is no longer a party, we need not consider whether it had standing.
1
Given our resolution of the standing issue, along with the Commission's withdrawal from
these proceedings, this issue need not be addressed.
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See Owner-Operator Independent Drivers Ass'n v. Bower, 325 Ill. App. 3d 1045, 1050
(2001), quoting Jenner v. Wissore, 164 Ill. App. 3d 259, 267 (1988) ("The doctrine of
standing is designed to insure that the courts are accessible to resolve actual controversies between
parties and not 'address abstract questions, moot issues, or cases brought on behalf of others who may
not desire judicial aid' "). We first address whether Kramer and The Friends of the Du Page
Theatre have standing to seek a writ of mandamus in this case. Standing requires an injury to a legally protected
interest. Board of Trustees of Community College District No. 502 v. Department of Professional
Regulation, 363 Ill. App. 3d 190, 197 (2006). In determining that Kramer and The Friends of
the Du Page Theatre lacked standing, the trial court relied on Landmarks Preservation Council v. City of
Chicago, 125 Ill. 2d 164 (1988), where the supreme court refused to recognize the standing of several
groups to challenge a Chicago ordinance that removed landmark status from the McCarthy building. The court
found that the groups--Landmarks Preservation Council of Illinois and the Chicago Chapter, American
Institute of Architects--lacked standing, noting that a party "cannot gain standing merely through a self-
proclaimed concern about an issue, no matter how sincere." Landmarks Preservation Council, 125 Ill. 2d at
175. The court specifically rejected, as bases for standing, both the aesthetic interests of these parties and
their "alleged right to participate in a public hearing" regarding the ordinance where the "municipality has bestowed
that alleged procedural right apparently not as a legal entitlement but as a tool to assist the municipality in
performing its legislative function." Landmark Preservation Council, 125 Ill. 2d at 175.
There exists one important difference between Landmark Preservation Council and this case.
In Landmark Preservation Council, 125 Ill. 2d at 175, the McCarthy building was privately owned.
Here, the Du Page Theatre is owned by the Village. Defendants argue that the Village owns the theater
as a property owner, rather than in a governmental capacity, and that the Village is seeking to act as
an ordinary property owner would. While defendants cite several cases to support their claim that
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the Village's actions are outside the scope of governmental action for the purpose of mandamus
relief (see, e.g., Lewis E. v. Spagnolo, 186 Ill. 2d 198, 230 (1999)), they cite nothing to support the
proposition that a municipality may use property other than for the public benefit (O'Fallon
Development Co. v. City of O'Fallon, 43 Ill. App. 3d 348, 353 (1976)). For the purpose of standing,
we reject defendant's distinction.
Plaintiffs assert two reasons that Kramer and The Friends of the Du Page Theatre have
standing. First, they contend that the labor and money that these parties have contributed to the
theater vest them with an interest. This argument, as the trial court recognized, is foreclosed by
Landmark Preservation Council, 125 Ill. 2d at 175, because, as that case held, "self-proclaimed concern"
cannot vest one with standing. That this concern was manifested by voluntary contributions does not
alter these parties' status with regard to the theater, as a gift vests one with no interest after it is
alienated (cf. In re Marriage of Peshek, 89 Ill. App. 3d 959, 964 (1980) ("It is possible that a hearing
on this issue would result in a finding that the parties have no interest in the property because they
deeded the house to the Maidas as a gift ***")). Second, plaintiffs argue that these parties have
standing because members of the public "have a protectable interest in ensuring that public officials
follow the requirements of public statutes." American Federation of State, County, & Municipal
Employees, Council 31 v. Ryan, 332 Ill. App. 3d 866, 876 (2002) (Myerscough, J., dissenting).
Indeed, "a taxpayer has standing to bring suit, even in the absence of a statute, to enforce the
equitable interest in public property which he claims is being illegally disposed of." Martini v.
Netsch, 272 Ill. App. 3d 693, 696 (1995). Here, plaintiffs seek to prevent defendants from
demolishing the Du Page Theatre, which is owned by the Village, in a manner that plaintiffs claim is
inconsistent with a village ordinance. If proven, plaintiffs would be demonstrating that defendants
are disposing of public property in a manner contrary to law. As such, Landmarks Preservation
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Council provides no guidance, and, in accordance with the law set forth above, Kramer and The
Friends of the Du Page Theatre have standing to bring this action. We now turn to the merits of this
cause.
As plaintiffs filed petitions for a writ of mandamus, it was incumbent upon them to
demonstrate a clear right to relief, a clear duty by defendants to act, and clear authority for
defendants to comply with the writ. People ex rel. Waller v. McKoski, 195 Ill. 2d 393, 398 (2001).
Mandamus is an extraordinary remedy, through which a public official can be compelled to perform
a ministerial duty. People ex rel. Madigan v. Snyder, 208 Ill. 2d 457, 464 (2004). Typically, we will
not disturb a trial court's decision regarding the propriety of a writ of mandamus unless the trial
court abuses the discretion with which it is vested in these matters or its factual findings are contrary
to the manifest weight of the evidence. 1350 Lake Shore Associates v. Hill, 326 Ill. App. 3d 788,
794 (2001). However, where a petition is dismissed under section 2--615 or section 2--619 of the
Civil Practice Law (735 ILCS 5/2--615, 2--619 (West 2004)), review is de novo. In re Application
of Anderson, 313 Ill. App. 3d 578, 581 (2000).
Plaintiffs rely on the following allegations in support of the existence of a clear right to
relief. In 1969, the Village enacted an ordinance creating the Commission. Lombard Village
Ordinances, Ordinance No. 1471 (eff. April 7, 1969). In 1982, the ordinance was revised. Lombard
Village Code '32.075 et seq. (eff. February 10, 1982). The original ordinance provided no specific
mechanism regarding classifying property as a historic site. The 1982 ordinance set forth such a
procedure and vested the Commission with certain powers. Of relevance to this case, the 1982
ordinance states:
"The Commission shall have the authority to review all proposed alterations, regardless of
whether or not they require a building permit. Alterations shall be defined as any work that
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results in changes in the exterior form, shape or appearance of a building designated as a
'landmark site' which thereby destroys its original architectural integrity. No alterations will
be made and no building permit issued in regard to property classified as a 'landmark site' to
any applicant without a certificate of appropriateness *** [w]here such permit would allow
the demolition of any building designated as a 'landmark site.' " Lombard Village Code
''32.079(E)(1), (E)(1)(b) (eff. February 10, 1982).
Also at issue here is the following portion of the ordinance:
"The Commission shall review an application for demolition and have the authority to delay
said demolition for a period not to exceed six months, to enable the Commission to
try to find a purchaser or alternate use for the building." Lombard Village Code
'32.079(E)(3) (eff. February 10, 1982).
The Commission sought to invoke this latter provision in response to the Village's decision to
demolish the theater.
The Du Page Theatre was built in 1928 and is currently owned by the Village. It is listed in
the National Register of Historic Places. The theater has been eligible for and has received various
grants designed to preserve it. On February 9, 1978, the Board of Trustees of the Village of
Lombard (Board) designated the theater a "historically significant site." The minutes of the meeting
in which the Board approved this designation read as follows:
"It was moved by Trustee Yangas, seconded by Trustee Garrity, that the Lombard Village
Board accept the recommendation of the Lombard Historical Commission in re[]
designating the Du Page Theatre as a historically significant site and allowing the waterfall
lights to operate."
The motion was unanimously approved.
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On June 2, 2005, the Board voted to demolish the theater. On September 1, 2005, the
Historical Commission stated, in a letter to the Board, "We write to lodge our objections and to
exercise our authority to stay demolition for six months while the Commission considers alternatives
to demolition." The letter further noted the Village's rejection of grant money for the theater and
reflected the Commission's understanding that the Village's motivation for so doing was to avoid
scrutiny from the Illinois Historic Preservation Agency. 2 The Board disregarded the Commission's
letter and began seeking to procure bids for demolition of the theater. Plaintiffs then instituted this
action.
The trial court held that plaintiffs had not demonstrated a clear right to relief. It based its
decision on the language of the 1982 ordinance, which requires that a building be designated a
"landmark" for the Commission to have authority over it. The theater never received such a
2
These facts have no bearing on the outcome of this cause, as "mandamus will not issue to
direct the manner in which a discretionary act is performed [citation], even if the judgment or discretion
has been erroneously exercised." Turner-El v. West, 349 Ill. App. 3d 475, 480 (2004).
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designation. Instead, in 1978, the Board designated it a "historically significant site." We agree
with the reasoning of the trial court. Because, however, this case turns largely upon the
interpretation of these two ordinances, review is de novo. Hawthorne v. Village of Olympia Fields,
204 Ill. 2d 243, 254-55 (2003).
In construing an ordinance, the familiar principles of statutory construction apply. Illinois
Wood Energy Partners, L.P. v. County of Cook, 281 Ill. App. 3d 841, 850 (1995). Thus, the plain
language of an ordinance is the best indication of the intent of the body that enacted it. City of
Chicago v. Gomez, 256 Ill. App. 3d 518, 519 (1993). In this case, that principle appears dispositive.
In 1978, the theater was designated a "historically significant site." The 1982 ordinance gives the
Commission the power to stay the demolition of a "landmark." Since the theater was never
designated a "landmark," it would appear to be outside the scope of the Commission's authority. The
terms do not appear interchangeable, and our supreme court recognized a distinction between
"landmark" and "historic significance" when it wrote the following:
"It appears to us that in bestowing powers on the National Trust in order to further this broad
national policy, Congress intended to permit the National Trust to, inter alia, object to
the allegedly unlawful destruction of buildings such as the McCarthy Building, which the National
Trust deems of national historic significance, even if those buildings have not been officially declared
'national landmarks.' " Landmarks Preservation Council, 125 Ill. 2d at 177.
Indeed, the supreme court expressly juxtaposed the terms "historic significance" and "landmark" in
the above-quoted passage.
Plaintiffs, however, contend that the terms are synonymous. Initially, we note that plaintiffs
point out that ordinances are presumptively valid. City of Decatur v. Chasteen, 19 Ill. 2d 204, 210
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(1960). 3 This principle has no bearing on this case. At issue is not whether the ordinance declaring
the theater a "historically significant site" is valid; rather, it is the meaning of that phrase.
3
Counsel's citation to authority for this proposition fails to comply with Supreme Court Rule
6, which requires, inter alia, that "[c]itations of cases must be by title, to the page of the
volume where the case begins, and to the pages upon which the pertinent matter appears
in at least one of the reporters cited." (Emphasis added.) 145 Ill. 2d R. 6. We remind
counsel that compliance with the supreme court rules is mandatory. Geers v. Brichta, 248 Ill.
App. 3d 398, 400 (1993).
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Plaintiffs next note that the relevant portion of the 1982 ordinance is captioned, "Historical
Sites; Designation and Maintenance," and that the balance of that portion of the ordinance refers to
designating sites as "landmarks" but makes no reference to any other designation, such as
"historically significant site." See Lombard Village Code '32.079. (eff. February 10, 1982). Hence,
they conclude, the terms "landmark" and "historically significant site" are synonymous. We find this
argument unpersuasive. The 1978 resolution declaring the theater a "historically significant site"
was adopted approximately four years prior to the 1982 ordinance. Thus, it would have been
impossible for the Board to have that latter scheme in mind when it made its original declaration.
Since the 1982 ordinance did not exist at the time the theater was declared a "historically significant
site," it provides no guidance in discerning the Board's intent. Moreover, the general rule is that
ordinances, like statutes, are presumed to have only prospective effect. Hopkinson v. Chicago
Transit Authority, 211 Ill. App. 3d 825, 835 (1991); City of Chicago v. Ballinger, 45 Ill. App. 2d
407, 414 (1964). Plaintiffs provide no reason to depart from this general rule, so we cannot hold that
the 1982 ordinance had any substantive effect upon the Village's 1978 resolution. We further note
that the power that the Commission sought to exercise here, to stay the demolition of the theater for
six months, was not a part of its powers in 1978. We simply cannot say that the Board intended, in
1978, to vest the Commission with authority over the theater that the Commission did not even
possess at the time.
Furthermore, the term "landmark" was not unknown in Illinois law in 1978, and had the
Board so desired, it could have used the term then. See City of Chicago v. Roppolo, 113 Ill. App. 3d
602, 604-05 (1983). It has also been observed that a municipality can recognize the historical
significance of a structure short of declaring it a "landmark." See Wakeland v. City of Urbana, 333
Ill. App. 3d 1131, 1141 (2002) ("We are aware of no case holding that a city must designate houses
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on a street as historical landmarks before passing a zoning ordinance protecting the historical
appearance or ambiance of the street"). Additionally, as defendants point out, declaring something
a "landmark" under the 1982 ordinance requires more than a simple vote. By the time of the 1978
resolution, it was recognized that designating a structure a landmark could, in certain circumstances,
raise takings-clause issues. Penn Central Transportation Co. v. City of New York, 438 U.S. 104, 57
L. Ed. 2d 631, 98 S. Ct. 2646 (1978). The 1982 ordinance recognizes this by requiring both notice to
property owners and a hearing. Lombard Village Code '32.079(D) (eff. February 10, 1982). While
certainly not dispositive, that the designation of the theater as a "historically significant site" was
accomplished by a simple vote of the Board provides some additional support for the notion that, by
making this declaration, the Board did not view its actions to be of the character necessary to
designate a building a landmark.
Black's Law Dictionary provides further support for this distinction. We recognize that the
current edition defines "landmark" as "[a] historically significant building or site." Black's Law
Dictionary 883 (7th ed. 1999). However, it also recognizes, in the definition of "historic site," that
"[a] historic site usu[ally] cannot be altered without the permission of the appropriate authorities."
Black's Law Dictionary 736 (7th ed. 1999). Thus, not all historic sites are protected.
Even if we were to equate "landmark" and "historically significant site," it would be dubious
indeed to ascribe to the Board an intent to place the theater within the jurisdiction of the
Commission, as the Commission did not have that authority in 1978 and, as the definitions in Black's
Law Dictionary show, not all historic sites are protected. In other words, to find for plaintiffs, we
would first have to equate the two terms. Then, we would have to find that the Board intended to
vest the Commission with a power it did not posses at the time of the designation. Additionally, we
would have to ignore the common meanings of the terms, which do not necessarily signify equal
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status. This chain of reasoning is simply too tenuous to support a clear right to relief as is required
to support a mandamus action.
Before closing, we also reject plaintiffs' contention that the trial court resolved questions of
fact and drew inferences against plaintiffs when deciding the motion to dismiss. Doing so would, of
course, be improper. Marshall v. Burger King Corp., 355 Ill. App. 3d 685, 688 (2005). The
dispositive issue, however, is the meaning of the terms "historically significant site" and "landmark."
The interpretation of a legislative enactment is a question of law, not one of fact. Victory Auto
Wreckers, Inc. v. Village of Bensenville, 358 Ill. App. 3d 505, 507 (2005); National Conference of
Bar Examiners v. Multistate Legal Studies, Inc., 495 F. Supp. 34, 36 (N.D. Ill. 1980)
("Thus the plaintiffs' motion to strike is based on a question of statutory interpretation, not a question
of fact"). Such issues are properly resolved on a motion to dismiss. See Eads v. Heritage
Enterprises, Inc., 204 Ill. 2d 92, 96 (2003).
In sum, plaintiffs failed to demonstrate a clear right to relief as is necessary to support a
mandamus action. See Lee v. Findley, 359 Ill. App. 3d 1130, 1134 (2005). Though the trial court
improperly concluded that Kramer and The Friends of the Du Page Theatre lacked standing, we may
affirm on any basis apparent in the record. Larson v. O'Donnell, 361 Ill. App. 3d 388, 397 (2005).
Since plaintiffs did not establish a clear right to the issuance of a writ of mandamus, we affirm the
trial court's judgment.
Affirmed.
BOWMAN and CALLUM, JJ., concur.
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