{ "id": 4292190, "name": "WALTER STACKMAN, Plaintiff-Appellant, v. THE CITY OF GENEVA et al., Defendants-Appellees; WALTER STACKMAN, Plaintiff-Appellant, v. THE CITY OF GENEVA et al., Defendants-Appellees", "name_abbreviation": "Stackman v. City of Geneva", "decision_date": "2009-10-16", "docket_number": "Nos. 2\u201407\u20141124, 2\u201407\u20141125 cons.", "first_page": "489", "last_page": "496", "citations": [ { "type": "official", "cite": "395 Ill. App. 3d 489" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "378 Ill. App. 3d 458", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4274365 ], "year": 2007, "pin_cites": [ { "page": "475" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/378/0458-01" ] }, { "cite": "366 Ill. App. 3d 715", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4264420 ], "year": 2006, "pin_cites": [ { "page": "719" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/366/0715-01" ] }, { "cite": "388 Ill. App. 3d 184", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4283536 ], "weight": 3, "year": 2009, "pin_cites": [ { "page": "187" }, { "page": "187" }, { "page": "187" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/388/0184-01" ] }, { "cite": "372 Ill. App. 3d 842", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4268765 ], "year": 2007, "pin_cites": [ { "page": "850" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/372/0842-01" ] }, { "cite": "367 Ill. App. 3d 769", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4265857 ], "year": 2006, "pin_cites": [ { "page": "772" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/367/0769-01" ] } ], "analysis": { "cardinality": 730, "char_count": 17038, "ocr_confidence": 0.767, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.14436362892199506 }, "sha256": "53b1970115619ba7517a86c04557882e590d2c57fac20d523556721fe18aa4ff", "simhash": "1:dd7b5d9c9909e455", "word_count": 2713 }, "last_updated": "2023-07-14T16:58:02.073967+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "WALTER STACKMAN, Plaintiff-Appellant, v. THE CITY OF GENEVA et al., Defendants-Appellees.\u2014 WALTER STACKMAN, Plaintiff-Appellant, v. THE CITY OF GENEVA et al., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE McLAREN\ndelivered the opinion of the court:\nIn these consolidated cases, plaintiff, Walter Stackman, appeals from the orders of the trial court (1) affirming, on administrative review, the decision of the city council of defendant the City of Geneva; and (2) denying his motion for summary judgment and granting summary judgment in favor of defendants, the City of Geneva and the City of Geneva Historic Preservation Commission (HPC) on his complaint for declaratory judgment and injunctive relief. We reverse.\nPlaintiff lives at 406 S. Fourth Street in Geneva. This home, built in 1945, is located within the Geneva Historic District (Historic District), which was created by city ordinance in 1987. A historic district is defined as:\n\u201cAny area established by city ordinance which includes or encompasses such historic sites, landmarks, buildings, signs, appurtenances, structures, or objects as may be determined as appropriate for historic preservation.\u201d Geneva Municipal Code, art. XIX, \u00a72 \u2014 461 (eff. October 16, 1995).\nPlaintiffs house is listed by the HPC as a \u201ccontributing\u201d structure within the District\n\u201cin that it illustrates the evolution of housing styles over a broad period of time. In the historic district we have a broad variety of styles \u2014 from high style Italianates to our local vernacular worker\u2019s cottages. This is the later version of the worker\u2019s cottage \u2014 a utilitarian ranch home with simple design.\u201d\nIn July 2006, plaintiff began to replace some exterior doors and to replace the remaining wood windows with vinyl windows. Some original wood windows had been replaced with vinyl windows in 2002. The HPC notified plaintiff that it needed to review the project before the windows could be replaced. Plaintiff filed an application with the HPC, which held a hearing on July 18, 2006. Plaintiffs application was denied. Plaintiff appealed the HPC\u2019s decision to the Geneva city council, which upheld the HPC\u2019s decision on August 7, 2006. Plaintiff then filed a complaint for administrative review in the trial court on September 8, 2006, which is the basis of case number 2 \u2014 07\u20141124.\nOn September 18, 2006, plaintiff filed a complaint for declaratory judgment and a permanent injunction against defendants, the subject of case number 2 \u2014 07\u20141125. On October 22, 2007, the trial court entered judgments in both cases. The court affirmed the decision of the Geneva city council on administrative review and, in ruling on cross-motions for summary judgment in the declaratory judgment suit, denied plaintiffs motion while granting that of defendants. These appeals then followed.\nWe will first address defendants\u2019 motion to supplement the record in case number 2 \u2014 07\u20141125, which we have ordered taken with the case. Defendants seek to supplement the record in the declaratory judgment case with the record from the administrative review case. However, a party may supplement the record on appeal only with documents that were actually before the trial court. Radosevich v. Industrial Comm\u2019n, 367 Ill. App. 3d 769, 772 (2006). This court may take judicial notice of a written decision that is part of the record in an administrative tribunal or another court, because such documents fall within the category of readily identifiable facts that are capable of instant and unquestionable demonstration. Hermesdorf v. Wu, 372 Ill. App. 3d 842, 850 (2007). Here, the trial court, Judge Col-well presiding, heard both of these consolidated cases and even issued judgments in both cases on the same day. In its ruling in the declaratory judgment case, the trial court referenced various pages of the record in the administrative review case. While most of these references are to pages containing copies of City of Geneva ordinances, the trial court described one such reference as follows:\n\u201cIn fact, Walter Stackman acknowledges it was his responsibility to obtain a building permit. Such acknowledgment was conceded by plaintiffs attorney, Leonard Seraphin, in his August 7, 2006, Written Appeal of HPC Decision to the City Council. (GE/STA 60 [the numbering system used by defendants for the record filed on administrative review]).\u201d\nThus, while we deny defendants\u2019 motion to supplement the record in case number 2 \u2014 07\u20141125 with the entire record from case number 2 \u2014 07\u20141124, we cannot ignore that which the trial court specifically relied upon and cited to in its opinion, especially where plaintiff never objected to such reliance.\nWe will deal first with the appeal arising out of the declaratory judgment suit. Plaintiff contends that the trial court erred in granting defendants\u2019 motion for summary judgment and in denying his motion for summary judgment. Summary judgment is proper when the pleadings, admissions, depositions, and affidavits on file, viewed in the light most favorable to the nonmoving party, demonstrate that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. G.I.S. Venture v. Novak, 388 Ill. App. 3d 184, 187 (2009). The interpretation and applicability of legislation present questions of law that are suitable for resolution through summary judgment. G.I.S. Venture, 388 Ill. App. 3d at 187. We review de novo the meaning and effect of statutory provisions as well as the trial court\u2019s grant or denial of summary judgment. G.I.S. Venture, 388 Ill. App. 3d at 187.\nIn his complaint, plaintiff styled \u201cthe question presented by this case\u201d as whether the HPC:\n\u201chas the jurisdiction and power to approve or deny an attempt by a property owner to modify the windows in structures located within the [Historic] District. It is a facial challenge to the policy of the [HPC].\u201d\nPlaintiff alleged that the HPC had ordered him to remove the windows that he had already installed and had \u201cthreatened\u201d to bring him before a hearing officer and fine him in excess of $700 per day. He had not sought, \u201cnor do the ordinances of\u2019 Geneva require, the issuance of a building permit to replace windows, and the HPC had no authority \u201cto review any activity that does not require a building permit, including the replacement of windows and doors.\u201d Thus plaintiff sought a declaration that: (1) defendants lacked jurisdiction to regulate window or door replacement in the Historic District, where the activity would not otherwise require a building permit, or to approve, deny, prohibit, or punish plaintiffs replacing his windows and doors; and (2) the replacement of windows and doors did not require a building permit. Plaintiff also sought a permanent injunction barring defendants from \u201cregulating any activity within the Historic District that does not require a building permit\u201d and from prosecuting him for replacing his windows and doors.\nThe HPC was initially created, under a different name, as an advisory body in 1982. In 1995, article XIX of the Geneva Municipal Code was comprehensively amended by Ordinance 94 \u2014 11, and the HPC was reconstituted with additional authority, including the authority:\n\u201c(1) To advise individuals seeking to construct new buildings or redevelop existing buildings and/or areas and sites within the Historic District(s) established by the City Council.\n(2) To educate individuals as to the significance of historic structures or sites, and recommend style, color, building materials or exterior features that will be compatible with the Historic District.\n(4) To review applications for building permits, demolition permits, or sign permits relating to public or private real property designated as a Landmark or located within a Historic District, including public property which does not require a permit, and to advise the person in charge of the architectural features, style, color, building materials, and general site design that will enhance the proposed redevelopment or new construction in terms of its historic character or its relationship to the District.\u201d (Emphasis in original.) Geneva Municipal Code, art. XIX, \u00a7\u00a72 \u2014 466(a)(1), (a)(2), (a)(4) (eff. October 16, 1995).\nSection 2.469 of Ordinance 94 \u2014 11 amended the procedures for designating historic preservation districts. Pursuant to the ordinance,\n\u201cOnce an Historic District has been designated!,] no exterior architectural feature of a building or structure within such district may undergo alteration, construction, demolition or removal if such alteration, construction, demolition or removal would be subject to the issuance of a determination of appropriateness under the provisions of the Article. Nothing in this paragraph shall operate to bar ordinary repair and maintenance or any work that is necessary to prevent or correct an imminently dangerous or hazardous condition.\u201d Geneva Municipal Code, art. XIX, \u00a72.469(a)(12) (eff. October 16, 1995).\nExterior features were defined to include:\n\u201cthe architectural style, general design and general arrangement of the exterior of a building or other structure, including the color, kind, and texture of the building material and the type and style of all windows, doors, light fixtures, signs, other appurtenant fixtures and other natural features such as trees and shrubbery.\u201d (Emphasis added.) Geneva Municipal Code, art. XIX, \u00a72 \u2014 461 (eff. October 16, 1995).\nAlteration is defined as \u201c[a]ny act or process which changes one or more of the \u2018exterior features\u2019 of the property and improvements which have been designated for preservation under this chapter.\u201d Geneva Municipal Code, art. XIX, \u00a72 \u2014 461 (eff. October 16, 1995). Nothing in article XIX \u201cshall be construed to prevent the ordinary maintenance or repair of any exterior feature in a Historic District which does not involve change in the design, material, color, or other appearance thereof.\u201d Geneva Municipal Code, art. XIX, \u00a72 \u2014 473 (eff. October 16, 1995).\nClearly, plaintiff here sought to alter exterior architectural features of his house; he sought to change the type and style of his windows and doors. No such alteration may be begun if the alteration \u201cwould be subject to the issuance of a determination of appropriateness under the provisions of the Article.\u201d Geneva Municipal Code, art. XIX, \u00a72.469(a)(12) (eff. October 16, 1995). The only time that the article specifies that the HPC is to issue a \u201cdetermination of appropriateness\u201d is in relation to the review of plans that must be submitted with applications for building, demolition, or sign permits. See Geneva Municipal Code, art. XIX, \u00a7\u00a72 \u2014 470(a)(2), (a)(3), (a)(4). While the HPC is empowered to \u201creview applications\u201d for permits and, apparently, changes to public property in the Historic District, which do not require a permit (see Geneva Municipal Code, art. XIX, \u00a72 \u2014 466(4)), there is no authority granted to review changes to private property in the Historic District that do not require some type of permit. The opportunity to grant such authority was available to Geneva when it enacted its historic preservation ordinance. For example, in Lombard Historical Comm\u2019n v. Village of Lombard, the relevant ordinance provided in part: \u201c \u2018The [Lombard Historical] Commission shall have the authority to review all proposed alterations, regardless of whether or not they require a building permit.\u2019 \u201d Lombard Historical Comm\u2019n v. Village of Lombard, 366 Ill. App. 3d 715, 719 (2006), quoting Lombard Village Code \u00a732.079(E)(1) (eff. February 10, 1982). No such express grant of authority exists in the case before us, and we will not read such a grant into the Geneva ordinance. The trial court erred in finding that the HPC had the authority to review changes to private property in the Historic District where no such permit is required.\nThe question remains, then, as to whether the replacement of windows in a house in the Historic District requires a permit. The Geneva Municipal Code provides:\n\u201cIt is hereby required that a permit be obtained in advance and all other requirements of the building code be complied with whenever a building or structure, or parts or appurtenances thereof, such as water supply, sewage disposal, plumbing installation and electrical installation, and regulated by this title, is erected, installed, altered, converted, remodeled, structurally repaired, moved or changed.\u201d Geneva Municipal Code, art._, \u00a710 \u2014 1\u20145A1.\nIn his deposition, building commissioner Charles Lencioni stated that a homeowner living outside the Historic District who wished to install new windows in his home would not be required to obtain a building permit for such work \u201c[a]s long as the [window] opening wasn\u2019t getting any larger.\u201d Lencioni considered such work done outside the Historic District to be \u201cminor maintenance,\u201d and he applied the same logic to the replacement of doors. The following colloquy took place soon thereafter:\n\u201cQ. Where in that \u2014 where in Title 10 does it say that an alteration that doesn\u2019t require a permit in the \u2014 outside the district can nevertheless require a permit within the district?\nA. [Lencioni] It doesn\u2019t say that in the \u2014 in the Municipal Code. It\u2019s an interpretation.\nQ. And who makes that interpretation?\nA. I do, as the Building Commissioner.\nQ. And your interpretation is based on the language in 10 \u2014 1\u2014 5A1 of the code that says, \u2018All other requirements of the Building Code be complied with\u2019; is that fair to say?\nA. That\u2019s correct. And the Historic Preservation Ordinance is in the Building Code. It\u2019s a part of the Building Code.\u201d\nLencioni also testified that he knew that the replacement of plaintiffs windows did not require enlarging the window openings.\nAt best, it appears that defendants are inconsistent in their interpretation and application of Geneva\u2019s building code. On appeal, defendants argue:\n\u201cWork on a house in the HD which involves taking out windows or replacing windows, i.e., \u2018changing\u2019 defined \u2018exterior features\u2019 or \u2018changing\u2019 the materials in those windows exterior features [sic], by definition means that \u2018parts or appurtenances\u2019 of a \u2018building or structure\u2019 \u2018regulated by [the Building Code] is [being] erected, installed, altered, converted, remodeled, structurally repaired, moved or changed\u2019 within the meaning of Code Section 10 \u2014 1\u2014 5A.\u201d\nHowever, Geneva\u2019s own building commissioner, Lencioni, testified that such work done outside the Historic District was considered to be \u201cminor maintenance\u201d that did not require a permit unless the window openings were being enlarged. There is nothing in the building code that differentiates permit requirements for similar work done inside and outside the Historic District. If the replacement of a window is an alteration or a changing of the \u201cparts or appurtenances\u201d of a structure, it requires a building permit, whether it occurs inside or outside the district. Nothing in the building code allows, let alone requires, a different outcome based on the location of the structure.\nDefendants point out that the trial court must also consider the admissions on file in determining whether to grant summary judgment. In this case, plaintiff made the following admission in a filing before the Geneva city counsel two months before initiating the declaratory judgment suit:\n\u201cWalter Stackman is an excellent citizen of Geneva and would not knowingly violate any City ordinance or regulation. He acknowledges it was his responsibility to obtain a building permit, and he apologizes to the Counsel [sic] for his failure to do so. The contractor who replaced the windows five years ago did not obtain a building permit, and the current contractor also failed to obtain a building permit.\u201d (Emphasis added.)\nHowever, plaintiff cannot be bound by that admission, as it is an admission to a conclusion of law, which is properly left to the trial court. See Village of Oak Lawn v. Faber, 378 Ill. App. 3d 458, 475 (2007).\nBecause the replacement of windows that does not necessitate enlarging the window openings does not normally require a building permit, and there is no statutory authority to require such a permit when the same work is done in the Historic District, we conclude that plaintiff was not required to obtain a building permit in this instance. Thus, the trial court erred in granting summary judgment in favor of defendants and failing to grant summary judgment in favor of plaintiff.\nThe trial court also erred in affirming the city council\u2019s order in case number 2 \u2014 07\u20141124, since the HPC had no authority to review, approve, or deny plaintiffs planned installation of windows and doors.\nFor these reasons, the judgments of the circuit court of Kane County are reversed.\nReversed.\nJORGENSEN and SCHOSTOK, JJ., concur.", "type": "majority", "author": "JUSTICE McLAREN" } ], "attorneys": [ "Stephen M. Cooper, Peter M. Storm, and Philip J. Piscopo, all of Cooper, Storm & Piscopo, of Geneva, for appellant.", "Kenneth H. Hoch and Charles A. Radovich, of Radovich & Radovich, both of Geneva, for appellees." ], "corrections": "", "head_matter": "WALTER STACKMAN, Plaintiff-Appellant, v. THE CITY OF GENEVA et al., Defendants-Appellees.\u2014 WALTER STACKMAN, Plaintiff-Appellant, v. THE CITY OF GENEVA et al., Defendants-Appellees.\nSecond District\nNos. 2\u201407\u20141124, 2\u201407\u20141125 cons.\nOpinion filed October 16, 2009.\nStephen M. Cooper, Peter M. Storm, and Philip J. Piscopo, all of Cooper, Storm & Piscopo, of Geneva, for appellant.\nKenneth H. Hoch and Charles A. Radovich, of Radovich & Radovich, both of Geneva, for appellees." }, "file_name": "0489-01", "first_page_order": 505, "last_page_order": 512 }