                        Nos. 2--07--1124 & 2--07--1125 cons. Filed: 10-16-09
______________________________________________________________________________

                                              IN THE

                              APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

WALTER STACKMAN,                       ) Appeal from the Circuit Court
                                       ) of Kane County.
      Plaintiff-Appellant,             )
                                       )
v.                                     ) No. 06--MR--394
                                       )
THE CITY OF GENEVA and                 )
THE CITY OF GENEVA HISTORIC            )
PRESERVATION COMMISSION,               ) Honorable
                                       ) Michael J. Colwell,
      Defendants-Appellees.            ) Judge, Presiding.
______________________________________________________________________________

WALTER STACKMAN,                       ) Appeal from the Circuit Court
                                       ) of Kane County.
      Plaintiff-Appellant,             )
                                       )
v.                                     ) No. 06--MR--413
                                       )
THE CITY OF GENEVA and                 )
THE CITY OF GENEVA HISTORIC            )
PRESERVATION COMMISSION,               ) Honorable
                                       ) Michael J. Colwell,
      Defendants-Appellees.            ) Judge, Presiding.
______________________________________________________________________________

       JUSTICE McLAREN delivered the opinion of the court:

       In 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
Nos. 2--07--1124 & 2--07--1125 cons.


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.

        Plaintiff 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:

                "Any 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." Geneva Municipal Code, art. XIX, §2--461 (eff.

        October 16, 1995).

Plaintiff's house is listed by the HPC as a "contributing" structure within the District

        "in 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 - from high style Italianates to our local

        vernacular worker's cottages. This is the later version of the worker's cottage - a utilitarian

        ranch home with simple design."

    In 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.

Plaintiff's application was denied. Plaintiff appealed the HPC's decision to the Geneva city council,

which upheld the HPC's 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--

07--1124.



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Nos. 2--07--1124 & 2--07--1125 cons.


        On September 18, 2006, plaintiff filed a complaint for declaratory judgment and a permanent

injunction against defendants, the subject of case number 2--07--1125. 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 plaintiff's motion while granting that of defendants. These appeals then

followed.

        We will first address defendants' motion to supplement the record in case number 2--07--

1125, 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'n, 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 Colwell 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:

        "In fact, Walter Stackman acknowledges it was his responsibility to obtain a building permit.

        Such acknowledgment was conceded by plaintiff's attorney, Leonard Seraphin, in his August




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        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])."

Thus, while we deny defendants' motion to supplement the record in case number 2--07--1125 with

the entire record from case number 2--07--1124, 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.

        We will deal first with the appeal arising out of the declaratory judgment suit. Plaintiff

contends that the trial court erred in granting defendants' 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's grant or denial of summary

judgment. G.I.S. Venture, 388 Ill. App. 3d at 187.

        In his complaint, plaintiff styled "the question presented by this case" as whether the HPC:

        "has 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]."

Plaintiff alleged that the HPC had ordered him to remove the windows that he had already installed

and had "threatened" to bring him before a hearing officer and fine him in excess of $700 per day.



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Nos. 2--07--1124 & 2--07--1125 cons.


He had not sought, "nor do the ordinances of" Geneva require, the issuance of a building permit to

replace windows, and the HPC had no authority "to review any activity that does not require a

building permit, including the replacement of windows and doors." 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 plaintiff's 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 "regulating any activity within the Historic District that does not require a building

permit" and from prosecuting him for replacing his windows and doors.

       The 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--11, and

the HPC was reconstituted with additional authority, including the authority:

               "(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.

               (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.

               ***

               (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



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Nos. 2--07--1124 & 2--07--1125 cons.


       design that will enhance the proposed redevelopment or new construction in terms of its

       historic character or its relationship to the District." (Emphasis in original.) Geneva

       Municipal Code, art. XIX, §§2--466(a)(1), (a)(2), (a)(4) (eff. October 16, 1995).

Section 2.469 of Ordinance 94--11 amended the procedures for designating historic preservation

districts. Pursuant to the ordinance,

       "Once 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." Geneva

       Municipal Code, art. XIX, §2.469(a)(12) (eff. October 16, 1995).

Exterior features were defined to include:

       "the 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." (Emphasis added.) Geneva Municipal Code,

       art. XIX, §2--461 (eff. October 16, 1995).

Alteration is defined as "[a]ny act or process which changes one or more of the 'exterior features' of

the property and improvements which have been designated for preservation under this chapter."

Geneva Municipal Code, art. XIX, §2--461 (eff. October 16, 1995). Nothing in article XIX "shall

be construed to prevent the ordinary maintenance or repair of any exterior feature in a Historic



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Nos. 2--07--1124 & 2--07--1125 cons.


District which does not involve change in the design, material, color, or other appearance thereof."

Geneva Municipal Code, art. XIX, §2--473 (eff. October 16, 1995).

        Clearly, 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 "would be subject to the issuance of a determination of appropriateness under the

provisions of the Article." Geneva Municipal Code, art. XIX, §2.469(a)(12) (eff. October 16, 1995).

The only time that the article specifies that the HPC is to issue a "determination of appropriateness"

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, §§2--470 (a)(2), (a)(3), (a)(4) (eff.

_______). While the HPC is empowered to "review applications" for permits and, apparently,

changes to public property in the Historic District, which do not require a permit (see Geneva

Municipal Code, art. XIX, §2--466 (4) (eff. _______)), 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'n v. Village of Lombard, the relevant

ordinance provided in part: " 'The [Lombard Historical] Commission shall have the authority to

review all proposed alterations, regardless of whether or not they require a building permit.' "

Lombard Historical Comm'n v. Village of Lombard, 366 Ill. App. 3d 715, 719 (2006). 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.




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Nos. 2--07--1124 & 2--07--1125 cons.


        The 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:

                "It 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." Geneva Municipal Code, Art. ___,

        §10--1--5 A. 1 (eff. _______).

In 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 "[a]s long as the [window] opening wasn't getting any larger."

Lencioni considered such work done outside the Historic District to be "minor maintenance, and he

applied the same logic to the replacement of doors. The following colloquy took place soon

thereafter:

                "Q. Where in that - where in Title 10 does it say that an alteration that doesn't require

        a permit in the - outside the district can nevertheless require a permit within the district?

                A. [Lencioni] It doesn't say that in the - in the Municipal Code. It's an interpretation.

                Q. And who makes that interpretation?

                A. I do, as the Building Commissioner.

                ***

                Q. And your interpretation is based on the language in 10--1--5A1 of the code that

        says, 'All other requirements of the Building Code be complied with'; is that fair to say?



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               A. That's correct. And the Historic Preservation Ordinance is in the Building Code.

       It's a part of the Building Code."

Lencioni also testified that he knew that the replacement of plaintiff's windows did not require

enlarging the window openings.

       At best, it appears that defendants are inconsistent in their interpretation and application of

Geneva's building code. On appeal, defendants argue:

               "Work on a house in the HD which involves taking out windows or replacing

       windows, i.e., 'changing' defined 'exterior features' or 'changing' the materials in those

       windows exterior features [sic], by definition means that 'parts or appurtenances' of a 'building

       or structure' 'regulated by [the Building Code] is [being] erected, installed, altered, converted,

       remodeled, structurally repaired, moved or changed' within the meaning of Code Section 10--

       1--5A."

However, Geneva's own building commissioner, Lencioni, testified that such work done outside the

Historic District was considered to be "minor maintenance" 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 "parts or appurtenances" 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.

       Defendants 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:



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                  "Walter 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." (Emphasis added.)

However, 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).

          Because 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.

          The trial court also erred in affirming the city council's order in case number 2--07--1124,

since the HPC had no authority to review, approve, or deny plaintiff's planned installation of windows

and doors.

          For these reasons, the judgments of the circuit court of Kane County are reversed.

          Reversed.

.         JORGENSEN and SCHOSTOK, JJ., concur.




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