Andrade v. City of Hammond

• Decision Date: 15 November 2018
• Docket Number: Court of Appeals Case No. 18A-MI-1199
• Parties: Jose ANDRADE, Appellant-Plaintiff, v. CITY OF HAMMOND and Hammond Board of Public Works and Safety, Appellees-Defendants.
• Court: Indiana Appellate Court

114 N.E.3d 507

Jose ANDRADE, Appellant-Plaintiff,

v.CITY OF HAMMOND and Hammond Board of Public Works and Safety, Appellees-Defendants.

Court of Appeals Case No. 18A-MI-1199

Court of Appeals of Indiana.

Filed November 15, 2018

Attorney for Appellant: Patrick B. McEuen, Portage, Indiana

Attorneys for Appellees: David C. Jensen, John M. McCrum, Robert J. Feldt, Kevin T. McNamara, Eichhorn & Eichhorn, LLP, Hammond, Indiana

Riley, Judge.

STATEMENT OF THE CASE

[1] Appellant-Plaintiff, Jose Andrade (Andrade), appeals the trial court's order affirming the decision of Appellee-Defendant, Hammond Board of Public Works and Safety (the Board), to restore the 6609 Jefferson Avenue Home (the Home) owned by him to a single-family dwelling.

[2] We affirm.

ISSUES

[3] Andrade presents us with three issues on appeal, which we restate as:

1) Whether the Board exceeded its statutory authority when it ordered Andrade to restore the Home to a single-family dwelling;

2) Whether the Board's finding that the Home was originally built as a single-family residence was supported by substantial evidence; and

3) Whether the failure of the City of Hammond (the City) to produce the 1927 Hammond building code in response to Andrade's subpoena duces tecum merits reversal.

FACTS AND PROCEDURAL HISTORY

[4] Andrade is a landlord who owns thirty-two properties with a total of sixty-two rental units. The Home was constructed in Hammond in 1927 and was purchased by Andrade in 1998. The Home was divided into five separate apartments before Andrade purchased it, and he continued to rent the five units. The City first inspected the Home on March 13, 2013. That inspection yielded a Notice of Violation mailed on May 10, 2013, (the 2013 Notice) which provided that the Home had been found to be an unsafe building in violation of Indiana's Unsafe Building Law (the UBL). The 2013 Notice listed various Hammond Municipal Code and International Building Code violations that the City relied upon to conclude that the Home was unsafe. All five of the units of the Home were marked as uninhabitable by the City. On May 14, 2015, the Board held a hearing on the 2013 Notice in Andrade's absence, which the Lake County Superior Court subsequently found had taken place without proper notice to Andrade. The Lake County Superior Court remanded the matter to the Board for further proceedings.

[5] Because of the amount of time that had elapsed since the first inspection, the City had the Home re-inspected on September 8, 2016, by Building Commissioner Kurtis Koch (Koch). As a result of that inspection, the City issued Andrade a second Notice of Violation (the 2016 Notice) which provided that the Home had been found to be an unsafe building pursuant to the UBL. The 2016 Notice identified twelve groupings of impaired structural conditions, eleven groupings of fire hazards, and six groupings of "a violation of a statute or ordinance concerning building condition or maintenance" all of which, under the UBL, rendered the Home an unsafe building. (Appellant's App. Vol. II, p. 42).

[6] A hearing on the 2016 Notice was scheduled for January 12, 2017. On January 4, 2017, Andrade served the City's Chief of Inspections Kelly Kearney (Kearney) with a subpoena duces tecum requesting that he bring to the hearing all "regulations, ordinances, and/or statutes" used by him to support his previous testimony before the Board at the first hearing regarding various unsafe conditions at the Home. (Appellant's App. Vol. II, pp. 44-45). The City did not comply with Andrade's subpoena.

[7] The January 12, 2017, hearing took place before the three-member Board. Koch testified regarding various unsafe conditions in the home, including the Home's balloon framing which was typically used in single-family homes built around 1927. This was a significant safety concern because that type of framing allowed fire and smoke to travel through a home unimpeded. Koch also testified that the Home's rear stairway was unsafe under the UBL because the stair width was inadequate to accommodate any first responders and their gear in an emergency. Koch identified other unsafe conditions in the home, such as the basement entrance which could not accommodate first responders, the fact that the bedroom basement lacked windows preventing escape in case of fire, and a chimney chase with inadequate fire stopping. Koch concluded that the Home was built in 1927 as a single-family home because it was built to the same standards as hundreds of other single-family homes in the area and had none of the structural elements which would have been present in a multi-family structure built in 1927. It was Koch's opinion that, in its current configuration, the Home was unsafe. Andrade's counsel cross-examined Koch on a variety of topics, including the width of the stairs in the rear stairway, the Home's water heater for which Andrade also had been cited, inaccuracies in the City's permitting lists, and the similarities between the two inspection reports which formed the basis of the 2013 and 2016 Notices of Violation.

[8] Kearney testified at the January 12, 2017, hearing that the City's ledger of building permits showed that the Home was issued a building permit for a "[n]ine room frame" which indicated to him that the Home had been constructed as a single-family home. (Appellee's App. Vol. II, p. 103). Kearney noted that during that era, if a structure was to be built with multiple apartments, it would have been indicated in the ledger entry. It was Kearny's opinion that the Home was unsafe because it had impaired structural conditions, fire hazards, and ordinance violations. Kearny requested on behalf of the City that the Board remove any apartments from the Home that were unsafe.

[9] On cross-examination, Andrade's counsel asked Kearney questions about what the 1927 Hammond building code would have required in terms of basement window height, the use of wooden support beams in the home, kick plates on stairs, hallway doors, basement ceiling height, and electrical meters. A discussion ensued between Andrade's counsel and the City's counsel regarding the City's failure to bring to the hearing the documents Andrade sought in his subpoena duces tecum . The City posited that it was not required to bring the requested documents for a variety of reasons, including that the material sought was publicly available. The discussion ended as follows:

Andrade's Counsel: But I asked for the ones that particularly he relied on in particular.

City's Counsel: Which are identified in the notice that's already been offered in the exhibit.

Andrade's Counsel: Let's move on. Let's move on.

(Appellee's App. Vol. II, p. 120).

[10] Andrade offered testimony and documentary evidence to the Board that he contended proved that the Home was built as a multi-family unit in 1927. Andrade's counsel argued to the Board during Andrade's testimony that "if this house is ruled a single-family house, [Andrade] knows that, you know, it's over for him with this house." (Appellee's App. Vol. II, pp. 182-83).

[11] At the end of the hearing, the City argued to the Board that, regardless of whether the Home was built as a single or multi-family home, the UBL gave them the authority to act to address unsafe buildings. During his closing remarks to the Board, Andrade's counsel noted that "[o]pposing counsel has indicated that the issue is the [UBL], which we understand." (Appellee's App. Vol. III, p. 2). Andrade's counsel also argued

And [Andrade] understood that his building was a single-family home – was not – excuse me – was not a single-family home when constructed. And I want to focus your Board on that – the Board on that issue. Because if it is not a single-family home, then it will stay the way it is depending on what you do in your decision.

However, if it is ruled that it was a single-family home, then this property can't exist economically.

(Appellee's App. Vol. III, p. 2).

[12] On March 9, 2017, the Board issued twenty-five findings of fact and its conclusions of law in which it found in relevant part as follows:

5. The property as currently configured contains five apartment units, including one in the basement, two on the main floor, and two on the second floor.

* * * *

7. Commissioner Koch found that the cellar apartment was unsafe, as were two second floor apartments and one first floor apartment.

* * * *

19. The ledger entry in the City of Hammond records reflects that the building at 6609 Jefferson was built as a nine-room frame construction.

20. There are no building permits to show that the property was lawfully converted to a multi-dwelling property at any point in its history.

21. The building was not erected as a multi-unit structure in 1927 and was never legally converted to a multi-unit apartment building thereafter.

22. The property at 6609 Jefferson is currently zoned Rl-U, which is Urban Single Family Residential District, and as such allows for two-family attached dwelling units not to exceed twenty percent (20%) of the dwelling units on the block.

23. The Inspections Department seeks to have the unsafe units removed on the property pursuant to the Indiana Unsafe Building Law, as adopted by local ordinance.

* * * *

25. Mr. Andrade has made some general repairs to the property since he bought it in 1998; however, there is no evidence that Mr. Andrade has made or has caused to be made major structural repairs that would remove the unsafe conditions existing on and within the premises.

(Appellant's App. Vol. II, pp. 187, 189-90). The Board concluded that "[a]s currently configured, [the Home] contains structural conditions and fire hazards that are dangerous to its occupants, rendering the premises unsafe and in violation of [the UBL]." (Appellant's App. Vol. II, p. 194). In addition, the Board concluded that the apartments in the Home were never lawfully constructed and cited to case law pertaining to the zoning law concept of a lawful non-conforming use. The Board found that the...