City of Atlanta, Logan Cnty., Ill., Corp. v. Armstrong
| Decision Date | 24 May 2016 |
| Docket Number | NO. 4-15-0466 cons.,NO. 4-15-0216,4-15-0216,4-15-0466 cons. |
| Citation | 2016 IL App (4th) 150216 -U |
| Parties | THE CITY OF ATLANTA, Logan County, Illinois, a Municipal Corporation, Plaintiff-Appellee, v. MARK ARMSTRONG, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
NOTICE
This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from Circuit Court of Logan County
Honorable Thomas W. Funk, Judge Presiding.
Justices Holder White and Pope concurred in the judgment.
¶ 1 Held: The appellate court affirmed the trial court's imposition of fines for defendant's ordinance violations but vacated an improperly imposed statutory fine.
¶ 2 In December 2013, plaintiff, the City of Atlanta, Illinois (City), filed a two-count complaint against defendant, Mark Armstrong, seeking a fine for each day defendant violated the Atlanta City Code (City Code) by allowing his building located at 105 Southeast Race Street, Atlanta, Illinois to create a nuisance. Following a bench trial, on December 5, 2014, the trial court found defendant had violated the City Code each and every day since September 10, 2013, and imposed the minimum authorized $250 fine for each violation, which totaled $112,750. Defendant filed a timely posttrial motion to modify or vacate the fine imposed, which the court denied on February 23, 2015. On March 25, 2015, defendant filed a notice of appeal from the court's December 5, 2014, and February 23, 2015, orders, docketed No. 4-15-0216.
¶ 3 On March 11, 2014, defendant filed a motion to vacate an additional $28,410 fine imposed under section 5-9-1(c) of the Unified Code of Corrections (Unified Code) (730 ILCS 5/5-9-1(c) (West 2012)). On May 5, 2015, the trial court denied defendant's motion. Defendant filed a second notice of appeal, docketed No. 4-15-0466, appealing the court's May 5, 2015, order and all orders appealed from in the original March 25, 2015, notice of appeal. We have consolidated both appeals.
¶ 4 On appeal, defendant argues the fines imposed against him should be vacated or reduced, or we should remand for the trial court to recalculate the appropriate amount of each fine. We affirm in No. 4-15-0216 and vacate in No. 4-15-0466.
¶ 7 On December 17, 2013, the City filed a two-count complaint against defendant. Count I alleged, on September 10, 2013, defendant violated the unsafe buildings ordinance contained in section 7-1-2-5 of the City Code (Atlanta City Code § 7-1-2-5) by allowing an unsafe building to create a nuisance. For purposes of appeal the parties do not dispute the ordinances contained in the record demonstrate those in effect at the time of the violations. Count I requested the trial court impose a fine under the general penalty provision contained in section 1-4-1 of the City Code (Atlanta City Code § 1-4-1) of not less than $250 and not more than $500 for defendant's first offense. Count II alleged defendant continued to violate the unsafe buildings ordinance (Atlanta City Code § 7-1-2-5) each and every day after September 10, 2013. Count II requested the court impose a fine under the general penalty provision(Atlanta City Code § 1-4-1) of not less than $250 and not more than $500 for each and every "conviction."
¶ 9 Over the course of a year, several pretrial proceedings were continued by the trial court or by agreement of the parties. On April 3, 2014, a pretrial hearing was continued due to the judge's absence. On April 23, May 1, and May 15, 2014, a pretrial hearing was continued by agreement of the parties. Following a May 29, 2014, pretrial hearing, the trial court set a bench trial for July 9, 2014. On July 7, 2014, the bench trial setting for July 9, 2014, was vacated by the trial court and, on July 8, 2014, reset for August 18, 2014.
¶ 11 Defendant's bench trial occurred over three days between August and December 2014. A verbatim transcript of the testimony rendered was not prepared. Instead, for purposes of appeal, the trial court prepared a certified report of the proceedings in accordance with Illinois Supreme Court Rule 323(c) (eff. Dec. 13, 2005). The following is a summary of the relevant evidence adduced at trial.
¶ 13 On August 18, 2014, the trial court commenced the bench trial. Fred Finchum, the Mayor of Atlanta, testified regarding the process the City undertakes after receiving a complaint of an ordinance violation. Typically, a complaint would come from private citizens. The City would determine the record title owner of the real estate and notify the owner of the alleged violations, giving an opportunity to remedy the violations. If the violation was not remedied in the time period in the notice to remediate, the violation would be referred to the cityattorney for prosecution.
¶ 14 Finchum testified the City became aware of defendant's building through defendant's neighbor who, after previously expressing interest in purchasing the property, had been given access to view the building by defendant's brother.
¶ 15 Finchum testified defendant was sent a notice of his alleged building violation, which was admitted into evidence. The notice, dated August 21, 2013, advised defendant, "after inspection by the City," his building was deemed dangerous under the unsafe buildings ordinance (Atlanta City Code § 7-1-2-5). The notice alleged defendant allowed his building to fall into a state of disrepair and the condition of the building caused or aided, or could have caused or aided, in the spread of disease or the harboring and spread of rodents, insects, or other vermin. The notice advised defendant (1) if he did not remedy the condition or demolish the building within 15 days, the City would proceed to take legal action to do so; (2) he could be subject to a fine of not less than $250 per day nor more than $500 per day for each day the building had been or continued to remain in a dangerous condition; and (3) the City could avail itself of all of the remedies set forth in section 11-31-1 of the Illinois Municipal Code (Municipal Code) (65 ILCS 5/11-31-1 (West 2012)). The notice provided the City would "re-inspect" the building after the 15-day period expired and, if the building was still in violation of the City Code, it would file an ordinance-violation complaint, requesting an order requiring defendant to "comply with the City Code and seeking a fine for [his] violation of the same."
¶ 16 Finchum testified the City undertook precautionary measures, such as erecting barricades around the building, to protect citizens from a possible collapse of the building.
¶ 17 Finchum opined the building constituted an unsafe or dangerous structure since atleast September 10, 2013, and for each and every day through August 18, 2014, and still continuing.
¶ 18 Chip Smith, a building contractor, testified he was hired by defendant's neighbors to inspect defendant's building and authored a report dated July 7, 2013, which was admitted into evidence. The report contained a recommendation the neighbors contact the City to disclose mold and structural-related defects with defendant's building. Smith opined the cost to rehabilitate the building was likely cost prohibitive.
¶ 19 Brian Swanson, a structural engineer, testified he inspected the building on November 26, 2013, and prepared a report for defendant, which was admitted into evidence. The report concluded the building could be salvaged. However, it also indicated concern regarding the building's south wall and recommended it be addressed in the near future to prevent "further deflection and potential toppling of the upper portion of that wall onto the sidewalk and street below."
¶ 20 In May 2014, after defendant attempted to remedy the building, Swanson again made an inspection. Swanson still had concerns the building posed a risk of collapse. Swanson feared the upper portions of the south wall presented a danger to the sidewalk below and recommended the structure be enclosed from the elements.
¶ 21 At trial, Swanson opined the structure was not structurally sound and created a risk of collapse.
¶ 22 Following this evidence, the trial court continued the matter until September 19, 2014. On September 18, 2014, by agreement of the parties, the court vacated the September 19, 2014, trial date and rescheduled for October 22, 2014.
¶ 24 On October 22, 2014, the trial court reconvened the bench trial. Finchum testified he inspected the building and opined it was still dangerous, unsafe, and posed a risk to the community. Finchum testified the structure remained open to the elements and feared the structure would deteriorate at a quicker rate. Finchum testified he believed the structure remained unsafe and dangerous each and every day since August 18, 2014, and still continuing.
¶ 25 Michael O'Neil, a structural engineer, testified he was retained by the City to render an opinion and authored a report dated May 14, 2014, which was admitted into evidence. O'Neil opined the building was dangerous, unsafe, and posed a risk of collapse. O'Neil testified, although the bracing defendant installed on the south wall improved the safety of the structure, there was still a risk of collapse. He further testified the overall deterioration of the building created risks of structural failure that may not be visible with the naked eye.
¶ 26 Following this evidence, the trial court continued the matter until December 5, 2014.
¶ 28 On December 5, 2014, the trial court reconvened the bench trial. Defendant testified he received the City's notice to remediate. After receiving the notice, he hired Swanson to inspect the building. Swanson informed him the building was at risk of collapse.
¶ 29 Defendant testified he never received a report from the City regarding an inspection of the...
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