Nevel v. Village of Schaumburg

• Decision Date: 26 July 2002
• Docket Number: No. 01-1966.,01-1966.
• Citation: 297 F.3d 673
• Parties: 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.
• Court: U.S. Court of Appeals — Seventh Circuit

297 F.3d 673

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.

No. 01-1966.

United States Court of Appeals, Seventh Circuit.

Argued November 27, 2001.

Decided July 26, 2002.

Mitchell Bryan (Argued), Levenfeld Pearlstein, Chicago, IL, for Plaintiffs-Appellants.

Jack M. Siegel, Iain D. Johnston (Argued), Altheimer & Gray, Chicago, IL, for Defendants-Appellees.

Before BAUER, 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 Lexington Court within the Village of Schaumburg, Illinois ("the Property"). Because the Property had been designated as a historic landmark, appellees, which include the Village of Schaumburg ("the Village") and various Village officials, denied the Nevels' request to install the vinyl siding and revoked a building permit that had been obtained by the Nevels' siding contractor. Instead of challenging 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 jurisdiction 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 previous owner, Girard Kretzschmar, had owned the Property since February 1997.¹ On December 9, 1997, the Village enacted 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 property of the proposed designation. The Commission shall schedule a public hearing on the question of the proposed 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 owners; 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 Village also published notice of the hearing in a local newspaper. 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 landmark 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 designated historic landmark, unless the village has previously 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.

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 investigation 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 considering covering the Property's exterior with a stucco material known as "dryvit" to eliminate a lead paint hazard connected with the wood siding. According to the Nevels, Teddy recommended against the dryvit and instead 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 nothing 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 the Olde Schaumburg Centre Commission ("the Commission"). That same day, Marty Nevel sent a letter to Robbins 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 receiving 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, checking only to see if Nu-Concepts was licensed and bonded. The secretary did not know that the Property was a designated 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 install 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 applied to the exterior of the Property. Marty Nevel did not ask Nu-Concepts to stop working until the Commission's determination was made, and the installation continued.

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 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 siding 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 landmark 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 siding or that the Property's landmark status be removed. Marty Nevel stated his goal was not to remove the landmark 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 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 landmark...