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06/20/95 LAKE COUNTY PUBLIC BUILDING COMMISSION v.

June 20, 1995

LAKE COUNTY PUBLIC BUILDING COMMISSION, PLAINTIFF-APPELLANT,
v.
THE CITY OF WAUKEGAN, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Lake County. No. 93-CH-454. Honorable William D. Block, Judge, Presiding.

The Honorable Justice Bowman delivered the opinion of the court: McLAREN, P.j., and Colwell, J., concur.

The opinion of the court was delivered by: Bowman

JUSTICE BOWMAN delivered the opinion of the court:

Plaintiff, the Lake County Public Building Commission (Commission), appeals an order of the circuit court of Lake County denying the Commission's motion for summary judgment and granting the summary judgment motion of defendant, the City of Waukegan. We affirm.

The facts giving rise to this appeal are not in dispute and may be summarized briefly. On October 15, 1984, the Waukegan City Council adopted resolution number 84-R-132 which, inter alia, approved the Commission's choice of a site for construction of an overhead pedestrian walkway, known as a skywalk, connecting the Babcox Justice Center Building with the Courthouse Square in downtown Waukegan. The Commission proceeded to prepare for construction of the skywalk and received building plans and specifications for the project. The plans and specifications were formally approved by the Commission and were incorporated into the construction contract.

On or about October 28, 1992, the Commission entered into a contract with a contractor to construct the skywalk. The contract set the cost of construction at $1,489,000. In December 1992, the contractor applied for a City of Waukegan building permit by depositing the skywalk plans and specifications with the Waukegan Building Department. On December 21, 1992, the City issued a building permit authorizing construction of the skywalk. The building permit stated that the permit fee was $15,100. Under the terms of the construction contract, the Commission was to be liable for the building permit fee.

The Commission refused to pay the permit fee and the parties entered into negotiations in an attempt to reach an agreement governing the construction of the skywalk as well as the Commission's other projects in Waukegan. No protocol, however, was reached. On July 6, 1993, following the Commission's refusal to pay the fee, the Waukegan City Council passed a motion which directed City officers to collect the disputed permit fee or, if it was not paid, to order the skywalk construction halted by a "stop work order."

On July 9, 1993, following notice to the Commission, the City ordered cessation of the construction at the end of the day. On the same day, the Commission filed a one-count complaint seeking temporary, preliminary, and permanent injunctive relief to prevent the City from enforcing its permit fee against the Commission. Also on that day, the parties agreed that the Commission would deposit the disputed $15,100 permit fee with the circuit court and that, until final resolution of the issues, the City would not delay or halt the construction. An agreed order, entered July 9, 1993, reflects this arrangement.

The litigation proceeded and the Commission filed a two-count first amended complaint. Count I mirrored the original complaint, seeking injunctive relief; count II sought a declaratory judgment that Waukegan's building regulations, including the permit fee, were inapplicable to the Commission. Following the filing of the first amended complaint, the parties filed cross-motions for summary judgment. On April 20, 1994, the trial court entered a five-page written order denying the Commission's motion for summary judgment and granting summary judgment to the City. In its order, the trial court noted that the parties were in agreement that there were no genuine issues of material fact. The court also noted that the Commission conceded that the City had the authority to pass a building code and that the permit fee in the present case was reasonable. Thus, the trial court stated, the Commission challenged only the applicability of the regulations and fee to itself.

Following a discussion of relevant cases, the trial court granted summary judgment to the City, stating:

"Therefore, since the regulation of the construction of buildings within a municipality is within the City's constitutional grant of power, since the PBC [Public Building Commission] has been given no explicit statutory grant of immunity from application of such regulation, since this is not a case of a regional government district being regulated by a part of the region, since construction of buildings pertains to the City's local affairs and the regulation is localized and since there is no other body available to regulate besides the PBC [sic], it is necessary to enforce the City's building regulations for the protection of its residents. This is true particularly as there is no evidence of any frustration of PBC's authority."

On May 17, 1994, the Commission filed a motion for reconsideration of the above-quoted order. This motion was denied and the Commission timely filed a notice of appeal, seeking review of the April 20, 1994, order and subsequent denial of its motion for reconsideration.

On appeal, the Commission contends that it is exempt from compliance with the City of Waukegan's building regulations, including building permit fees because, as applied to the Commission, the regulations are in excess of Waukegan's home rule power under article VII, section 6(a), of the Illinois Constitution (Ill. Const. 1970, art. VII, ยง 6(a)). In response, Waukegan maintains that nothing in the Public Building Commission Act (Act) (50 ILCS 20/1 et seq. (West 1994)) grants the Commission an exemption from the building regulations of host municipalities such as Waukegan. The City further argues that the broad grant of power to municipalities under article VII, section 6(a), of the Constitution and section 11-30-4 of the Illinois Municipal Code (65 ILCS 5/11-30-4 (West 1994)) unquestionably gives it the right to require the Commission to comply with its building regulations.

Preliminarily, we note that summary judgment is proper where no genuine issue of material fact exists and the question before the court is solely a matter of law. (735 ILCS 5/2-1005(c) (West 1994); Jacobson v. General Finance Corp. (1992), 227 Ill. App. 3d 1089, 1093, 170 Ill. Dec. 441, 592 N.E.2d 1121.) Our function in reviewing a grant of summary judgment is to determine whether the trial court correctly found that there were no genuine issues of material fact and, if there were not, whether the trial court correctly entered judgment as a matter of law. ( Village of Long Grove v. Austin Bank (1994), 268 Ill. App. 3d 70, 73, 205 Ill. Dec. 900, 644 N.E.2d 456.) We review a summary judgment de novo. Long Grove, 268 Ill. App. 3d at 73; Town of Avon v. Geary (1991), 223 Ill. App. 3d 294, 299, 165 Ill. Dec. 798, 585 N.E.2d 194.

Before turning to the issues raised by the Commission on appeal, we provide the following in the way of background on the history, purpose, and powers of the Commission. The legislature authorized creation of the Commission by passing the Public Building Commission Act (Act) in 1955. (50 ILCS 20/1 (West 1994).) The Act "was designed to enable some units of local government, including counties, to acquire, construct or improve public buildings without the necessity of resorting to tax referendums to accomplish that ...


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