The Vill. Of Ringwood v. Foster

• Decision Date: 13 July 2010
• Docket Number: No. 2-09-0473.,2-09-0473.
• Citation: 932 N.E.2d 461,342 Ill.Dec. 334
• Parties: The VILLAGE OF RINGWOOD, Plaintiff-Appellee, v. Deborah FOSTER, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

932 N.E.2d 461

342 Ill.Dec. 334

The VILLAGE OF RINGWOOD, Plaintiff-Appellee,

v.Deborah FOSTER, Defendant-Appellant.

No. 2-09-0473.

Appellate Court of Illinois,Second District.

June 9, 2010.

As Modified Upon Denial of Rehearing July 13, 2010.

COPYRIGHT MATERIAL OMITTED.

Carmen V. Speranza, Stephen V. Speranza, Speranza & Bates, Lake Forest, for Deborah Foster.

Bernard V. Narusis, Narusis & Narusis, Cary, for Village of Ringwood.

Modified Upon Denial of Rehearing

Justice O'MALLEY delivered the opinion of the court:

Defendant, Deborah Foster, appeals from the trial court's order authorizing plaintiff, the Village of Ringwood, to demolish defendant's building pursuant to section 11-31-1(a) of the Municipal Code (Code) (65 ILCS 5/11-31-1(a) (West 2006)). On appeal, defendant argues that the trial court's order must be vacated because it erred in finding her building “dangerous and unsafe” under the Code, because it erred in finding that she could not reasonably repair the building, and because plaintiff did not provide the notice the Code requires. For the reasons that follow, we vacate the trial court's order and remand for further proceedings.

In June 2007, plaintiff filed a complaint seeking authorization pursuant to section 11-31-1 of the Code to demolish a two-story apartment building defendant owned; the matter later proceeded to a bench trial. At the trial, defendant testified that she purchased the apartment building, which was created in “the late 1800's,” for $480,000 in July 2005. She recalled that the building was damaged by a fire in October 2006 and had not been occupied since and that, as a result of the fire damage, she received an insurance check, which she never cashed, for over $345,000. Defendant acknowledged having received a November 2006 letter from plaintiff's counsel informing her that plaintiff's ordinances prevented her from rebuilding and restoring the building to its prior use and giving her notice that she had to demolish the building “on or before May 15, 2007.” (Defense counsel objected on hearsay grounds to the admission of this letter into evidence. The trial court admitted it “for the limited purpose of showing notice,” but not for the purpose of establishing the truth of the matters stated in the letter.) Defendant further acknowledged having received an April 2007 letter to the same effect. (Defense counsel again objected to the admission of the letter, but the trial court again allowed the letter to be admitted into evidence for the purpose of establishing that defendant received notice from plaintiff.)

Timothy Coppack, an insurance adjuster who inspected the property shortly after the fire, estimated the total damage to the building at approximately $350,000 (net of depreciation, which he estimated at approximately $110,000). He estimated that the property was worth approximately $640,000 prior to the fire. Nathan Michaelson, a second adjuster, who said that the fire damaged the roof and led to smoke and water damage to the building, estimated the cost to repair the damage to the building at over $550,000 (including overhead and profit for the contractor who would perform the repairs). Michaelson recalled that defendant agreed to allow his company to perform repairs on the building but that his company performed no repairs because village officials told him “that they did not like the structure, that it looked like it would not be grandfathered in, and that most likely that type of building would not be able to be rebuilt” but instead “would have to be razed.” The village officials further explained to him that “if it's over fifty percent physically damaged, * * * [the village has] an ordinance that says it has to be razed.”

Plaintiff's village president verified that the village had a zoning ordinance that provided as follows:

“If any nonconforming building or structure is destroyed by any means to an extent of more than fifty (50) percent of the replacement cost of that portion of the principal and accessory buildings which are above the average ground elevation, such building or structure shall not be rebuilt or reoccupied for any [nonconforming use].”

Defendant does not dispute the accuracy of this testimony. Further, neither party now disputes that defendant's building was a nonconforming structure.

Plaintiff's building commissioner, Richard Boettcher, who examined the building after the fire, recalled that, on the second floor, there were “holes in the ceiling where the light was coming through,” as well as holes in the floor that allowed him to see down to the first floor. He further recalled that “[e]verything was soaked,” that the wood and walls in the building had been burnt or damaged, that “[t]he building was full of wires, bare wires hanging out of the ceiling,” that many of the joists had been destroyed by the fire, and that counters, cabinets, and windows in the apartments had been destroyed or badly damaged. Although Boettcher described extensive fire damage on the second floor, he stated that most of the damage on the building's first floor was caused by water. He also stated that he detected a strong smell of mold in the building.

Barry Schlieben, a general contractor, architectural draftsman, home inspector, and appraiser, testified that he had inspected the building at plaintiff's request. He estimated that the second floor of the building was “75 to 80 percent completely destroyed,” meaning that “everything in that section of the building would have to be disassembled.” Schlieben said that the second-floor ceiling, most of its interior walls, “[a] lot” of the studs for the exterior walls, “a lot” of the electrical wiring, the heating system, the windows, and the apartments' kitchens and bathrooms had been destroyed or needed to be replaced. He concluded that the second floor required that “the framing material from the walls, roof, ceiling would all have to be * * * completely removed and reconstructed” and that “[a]pproximately 75 percent of [the] roof would have to be reconstructed.” He said that he observed on the first floor “[a] lot” of water and smoke damage that would require replacing the drywall, the windows and doors, the kitchen and bathroom appliances, the heating system, and the hallway flooring, and sealing or replacing the wall framing. For the basement of the building, Schlieben stated that the ceiling would have to be sealed and debris cleaned out. He estimated the total cost of the necessary rebuilding at over $500,000, including 10% overhead and 10% contractor profit (for a total add-on of approximately $82,000), and that figure was broken down in a written estimate admitted into evidence. (The written estimate included $35,000 for “demolition,” almost $35,000 for washing and sealing of the entire building including the basement, and over $430,000 in other costs unrelated to the basement.) He said that his estimate included upgrades (fire-stopping and electrical upgrades) to make the building code-compliant. His estimate also included appliances such as dishwashers and window air conditioners.

Frank Harrison, a real-estate appraiser, estimated the replacement cost of the building as approximately $567,000 including the basement, or approximately $539,000 without the basement. His estimates did not include appliances.

The first witness in defendant's case-in-chief, Allen Stott, a home contractor whom defendant asked for an estimate for the repairs to her building, testified that he saw smoke damage as well as water damage, which was “[n]ot bad at all,” on the first floor of the building. He identified fire damage on the second floor, but he opined that the “[p]lace wasn't too bad.” Stott recommended that the building receive a new roof, new windows, new drywall for “all [of] the upstairs” and “some of the downstairs,” “some electrical” work, “a cabinet or two here or there,” and “a clean up and prime, paint.” He proposed doing the work for just under $274,000. Stott proposed a price for installation of new drywall much lower than other estimates had proposed, but he agreed on cross-examination that his bid did not include finishing floors, kitchen cabinets (which he said could be wiped down instead of replaced), or appliances. Plaintiff's attorney also listed several items not specifically included on Stott's estimate (such as removing mold, sealing damaged wood, adding fire stops, and replacing damaged flooring), but Stott testified that several were impliedly included in the estimate, either because he would have had to perform the tasks to make the building code-compliant or because the estimate indicated that he and defendant could discuss the project in greater detail at a later date.

Called as a witness on her own behalf, defendant recalled that some of the building's second-floor drywall had been damaged but that the walls were intact and the cabinets “dirty” but not burned. She noticed minimal damage on the first floor. She also recalled that Boettcher, the village inspector, responded to her saying that she intended to fix the building by saying “well, no way, Jose, are you getting a permit; the Village of Ringwood is very happy that [it has] the opportunity to get rid of this building.” Defendant said that she wanted to restore the building and that she had the funds to do so. She recalled that she solicited bids and designs for the repair work, but she acknowledged that she never submitted an application for a building permit.

Dale Alvine, defendant's brother and a self-employed contractor, testified that, upon his inspection of the building, he saw roof damage, burn damage on “the top two feet” of the “lumber” on the second floor (with “the rest of the board [being] fine”), melted wiring, and “sooted up” but “salvageable” “vanity tops.” Alvine opined that “basically the damage tended to be at the eight-foot and above range” from the floor. He testified that much of the structure of the building...