Vill. of Ringwood v. Foster

• Court: Appellate Court of Illinois
• Writing for the Court: Justice BIRKETT delivered the judgment of the court
• Citation: Vill. of Ringwood v. Foster, 2013 IL App (2d) 111221, 986 N.E.2d 662, 369 Ill.Dec. 349 (Ill. App. 2013)
• Decision Date: 21 March 2013
• Docket Number: Docket No. 2–11–1221.
• Parties: The VILLAGE OF RINGWOOD, Plaintiff–Appellee, v. Deborah FOSTER, Defendant–Appellant.

2013 IL App (2d) 111221

986 N.E.2d 662

369 Ill.Dec. 349

The VILLAGE OF RINGWOOD, Plaintiff–Appellee,

v.Deborah FOSTER, Defendant–Appellant.

Docket No. 2–11–1221.

Appellate Court of Illinois, Second District.

Feb. 11, 2013.

Modified upon denial of rehearing March 21, 2013.

Carmen V. Speranza and Stephen Speranza, both of Speranza & Bates, of Lake Forest, for appellant.

Bernard V. Narusis of Narusis & Narusis, of Cary, for appellee.

OPINION

Justice BIRKETT delivered the judgment of the court, with opinion.

[369 Ill.Dec. 352]¶ 1 This case involves the continuing efforts of plaintiff, the Village of Ringwood, to remediate the public hazard it claims is posed by a fire-damaged apartment building owned by defendant, Deborah Foster. The fire occurred in October 2006, and in January 2009 the trial court authorized plaintiff to demolish the building. In Village of Ringwood v. Foster, 405 Ill.App.3d 61, 85–86, 342 Ill.Dec. 334, 932 N.E.2d 461 (2010)( Foster I ), we vacated the demolition order because the record suggested, and plaintiff did not dispute, that there was a lien on the property and that plaintiff failed to provide the lienholder the requisite statutory notice of plaintiff's intent to seek a demolition order. On remand, plaintiff issued a notice to First National Bank of McHenry (First National), the lienholder. Over defendant's objection that the notice was deficient, the trial court reissued the demolition order. Defendant appeals, and we affirm.

¶ 2 I. BACKGROUND

¶ 3 A. Foster I

¶ 4 Plaintiff's July 2007 complaint seeking authorization to demolish the building was brought pursuant to section 11–31–1(a) of the Illinois Municipal Code (Code) (65 ILCS 5/11–31–1(a) (West 2006)). The complaint named defendant alone. Section 11–31–1(a) provides in relevant part:

“(a) The corporate authorities of each municipality may demolish, repair, or enclose or cause the demolition, repair, or enclosure of dangerous and unsafe buildings or uncompleted and abandoned buildings within the territory of the municipality and may remove or cause the removal of garbage, debris, and other hazardous, noxious, or unhealthy substances or materials from those buildings. * * *

The corporate authorities shall apply to the circuit court of the county in which the building is located (i) for an order authorizing action to be taken with respect to a building if the owner or owners of the building, including the lien holders of record, after at least 15 days' written notice by mail so to do, have failed to put the building in a safe condition or to demolish it or (ii) for an order requiring the owner or owners of record to demolish, repair, or enclose the buildingor to remove garbage, debris, and other hazardous, noxious, or unhealthy substances or materials from the building. It is not a defense to the cause of action that the building is boarded up or otherwise enclosed, although the court may order the defendant to have the building boarded up or otherwise enclosed. Where, upon diligent search, the identity or whereabouts of the owner or owners of the building, including the lien holders of record, is not ascertainable, notice mailed to the person or persons in whose name the real estate was last assessed is sufficient notice under this Section.

The hearing upon the application to the circuit court shall be expedited by the court and shall be given precedence over all other suits. Any person entitled to bring an action under subsection (b) shall have the right to intervene in an action brought under this Section.” 65 ILCS 5/11–31–1(a) (West 2006).

¶ 5 The trial court conducted a bench trial, at which plaintiff had the burden to prove that the building was (1) “dangerous and unsafe” (65 ILCS 5/11–31–1(a) (West 2006)) and (2) “beyond reasonable repair” ( Village of Lake Villa v. Stokovich, 211 Ill.2d 106, 131, 284 Ill.Dec. 360, 810 N.E.2d 13 (2004) (citing City of Aurora v. Meyer, 38 Ill.2d 131, 137, 230 N.E.2d 200 (1967))). As defendant would emphasize in her briefs on appeal in Foster I, plaintiff's counsel mentioned in his opening statement that defendant purchased the property in 2005 with financing from First National. Defendant also found it significant that, as the evidence at trial showed, she received an insurance settlement check in connection with the October 2006 fire that was payable to both her and First National. Therefore, according to defendant, plaintiff knew or should have known of the “continuing existence of the mortgage” held by First National. (These facts relate to defendant's claim of deficiency of notice, as we explain below at ¶ 45.)

¶ 6 The court heard testimony from several witnesses on the degree of damage to the building. At one point, plaintiff sought to introduce a November 15, 2006, letter it sent to defendant. In the letter, plaintiff directed defendant “to demolish [the building] * * * on or before May 15, 2007.” Defendant objected to the letter on hearsay grounds. The court admitted the letter “for the limited purpose of showing notice,” not to prove the truth of the matters stated in the letter.

¶ 7 In closing argument, defendant asserted, inter alia, that plaintiff “failed to prove * * * that the notice which [it] sent [to her] [was] compliant with the law, that [it] gave [her] a reasonable opportunity to repair the building.” Thus, defendant's complaint regarding notice was that she was not provided an opportunity to make repairs. She did not claim that some other party, such as a lienholder, did not receive notice of the demolition suit.

¶ 8 In a written opinion, the trial court rejected defendant's arguments and determined that plaintiff met its two-pronged burden of proof under City of Aurora and Stokovich. In particular, the court held that plaintiff's November 2006 letter satisfied the notice provision of section 11–31–1(a).

¶ 9 Defendant filed a posttrial motion, arguing in part that, since the trial court did not admit the “contents” of the November 2006 letter, it was “impossible for [plaintiff] to prove that it complied with [section 11–31–1(a) ].” Defendant further asserted that plaintiff “failed to introduce evidence that the lien holder of record was properly notified as per [section 11–31–1(a)]. The record shows that the motion was heard but contains no transcript or other account of the hearing.

[369 Ill.Dec. 354]¶ 10 The trial court denied the posttrial motion and issued an order authorizing plaintiff to demolish the building. The court stayed the judgment pending appeal.

¶ 11 On appeal in Foster I, defendant made three main arguments. First, she contended that plaintiff failed to prove that the building was “dangerous and unsafe” under section 11–31–1(a), as there was no evidence that the building threatened “public safety,” i.e., the community at large and not just those who entered onto the premises. Applying principles of statutory construction, we concluded that “a structure may be deemed ‘dangerous and unsafe’ under section 11–31–1 even if the danger is confined to those connected to the property.” Foster I, 405 Ill.App.3d at 74, 342 Ill.Dec. 334, 932 N.E.2d 461. As defendant had “agree[d] * * * that the damage to the building rendered it uninhabitable,” we held that plaintiff sustained its burden to prove that the building was “dangerous and unsafe.” Id.

¶ 12 Second, defendant disputed plaintiff's proof that the building was damaged beyond reasonable repair. In making its determination under this second prong of the City of Aurora/Stokovich analysis, the trial court borrowed from plaintiff's zoning ordinance, under which a nonconforming building that was damaged to the extent of more than 50% of its replacement cost could not be rebuilt or reoccupied for any nonconforming use (the 50% ordinance).¹ The trial court held that repair was unreasonable because the 50% ordinance prohibited it. Defendant argued to us that the trial court's use of the 50% ordinance as a standard for the reasonableness of repair was erroneous, but we disagreed. We acknowledged that the ordinance employed a different standard for calculating the reasonableness of repair than the standard the supreme court set forth in Stokovich. The supreme court stated: “ City of Aurora requires that the second finding—that the building is beyond reasonable repair—must be based on a comparison of the cost of repair with the value of the building.” Stokovich, 211 Ill.2d at 131, 284 Ill.Dec. 360, 810 N.E.2d 13. We noted in Foster I that, while the 50% ordinance “compares all of the damage to a building with the replacement cost of the building, * * * the Stokovich test compares the cost of repairing the dangerous conditions with the value of the building.” Foster I, 405 Ill.App.3d at 79, 342 Ill.Dec. 334, 932 N.E.2d 461. We did not find the “discrepancy” decisive, however. We reasoned that Stokovich did not

“preclud[e] a finding that repairs may be unreasonable for some reason other than cost. Rather, we interpret the supreme court's statement as dictating the means for the normal, cost-based reasons presented in [Stokovich and City of Aurora ] for why a repair might not be reasonable. The repair in this case is unreasonable because it is not allowed under plaintiff's ordinance, even if its cost might otherwise make it reasonable.” Id. at 79–80, 342 Ill.Dec. 334, 932 N.E.2d 461.

In Stokovich and City of Aurora, “repair was unreasonable due to cost,” but “[h]ere, repair is unreasonable based on another factor: the ordinance barred such repair.” Id. at 80 n. 6, 342 Ill.Dec. 334, 932 N.E.2d 461.

¶ 13 Defendant's third main contention was that plaintiff failed to comply with the 15–day notice provision of section 11–31–1(a). That section allows the corporate authorities of a municipality to “apply to the circuit court * * * for an order authorizingaction to be taken with respect to a building if the owner or owners of the building, including the lien holders of record, after at least 15 days' written notice by...