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Nevel v. Village of Schaumburg

July 26, 2002

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.

Before Bauer, Harlington Wood, Jr., and Manion, Circuit Judges.

The opinion of the court was delivered by: Harlington Wood, Jr., Circuit Judge

ARGUED NOVEMBER 27, 2001

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. *fn1 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 Commission *fn2 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. *fn3 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 ...


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