Lombard Historical v. Village of Lombard

• Decision Date: 14 July 2006
• Docket Number: No. 2-05-1180.,2-05-1180.
• Citation: 852 N.E.2d 916
• Parties: LOMBARD HISTORICAL COMMISSION, The Friends of the Du Page Theatre, Ltd., and Pete Kramer, Plaintiffs-Appellants, v. The VILLAGE OF LOMBARD, The Lombard Village President, and The Lombard Village Trustees, Defendants-Appellees (National Trust for Historic Preservation in the United States and Landmarks Preservation Council of Illinois, Intervenors-Appellants).
• Court: United States Appellate Court of Illinois

852 N.E.2d 916

LOMBARD HISTORICAL COMMISSION, The Friends of the Du Page Theatre, Ltd., and Pete Kramer, Plaintiffs-Appellants, v. The VILLAGE OF LOMBARD, The Lombard Village President, and The Lombard Village Trustees, Defendants-Appellees (National Trust for Historic Preservation in the United States and Landmarks Preservation Council of Illinois, Intervenors-Appellants).

No. 2-05-1180.

Appellate Court of Illinois, Second District.

July 14, 2006.

COPYRIGHT MATERIAL OMITTED

Michael Rachlis, Edwin L. Durham, Rachlis, Durham, Duff & Adler, Chicago, Zachary C. Wilson, Law Office of Zachary C. Wilson, Lombard, Elizabeth S. Merritt, National Trust for Historic Preservation/Counsel, Washington, DC, for Pete Kramer, Landmarks Preservation Council of Illinois, Lombard Historical Commission, National Trust for Historic Preservation and the Friends of DuPage Theatre, Ltd.

Lance C. Malina, Jacob Karaca, Klein, Thorpe & Jenkins, Ltd., Chicago, for the Lombard Village President, the Lombard Village Trustees, and the Village of Lombard.

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Plaintiffs, the Lombard Historical Commission (which has since withdrawn as a party), Pete Kramer, and The Friends of the Du Page Theatre, Ltd., filed in the circuit court of Du Page County two petitions for mandamus, which were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 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. See Owner-Operator Independent Drivers Ass'n v. Bower, 325 Ill.App.3d 1045, 1050, 258 Ill.Dec. 938, 757 N.E.2d 627 (2001), quoting Jenner v. Wissore, 164 Ill.App.3d 259, 267, 115 Ill.Dec. 534, 517 N.E.2d 1220 (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, 299 Ill.Dec. 903, 842 N.E.2d 1255 (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, 125 Ill.Dec. 830, 531 N.E.2d 9 (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, 125 Ill.Dec. 830, 531 N.E.2d 9. 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." Landmarks Preservation Council, 125 Ill.2d at 175, 125 Ill.Dec. 830, 531 N.E.2d 9.

There exists one important difference between Landmarks Preservation Council and this case. In Landmarks Preservation Council, 125 Ill.2d at 175, 125 Ill.Dec. 830, 531 N.E.2d 9, 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 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, 238 Ill.Dec. 1, 710 N.E.2d 798 (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, 2 Ill.Dec. 6, 356 N.E.2d 1293 (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 Landmarks Preservation Council, 125 Ill.2d at 175, 125 Ill.Dec. 830, 531 N.E.2d 9, 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, 45 Ill.Dec. 347, 412 N.E.2d 698 (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, 266 Ill.Dec. 4, 773 N.E.2d 739 (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, 208 Ill.Dec. 974, 650 N.E.2d 668 (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 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, 254 Ill.Dec. 729, 748 N.E.2d 175 (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, 281 Ill.Dec. 581, 804 N.E.2d 546 (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, 260 Ill.Dec. 577, 761 N.E.2d 760 (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, 246 Ill.Dec. 467, 730 N.E.2d 492 (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...