Village of Lake Villa v. Stokovich

• Decision Date: 20 February 2004
• Docket Number: No. 95118.,95118.
• Citation: Village of Lake Villa v. Stokovich, 211 Ill. 2d 106, 810 N.E.2d 13, 284 Ill.Dec. 360 (Ill. 2004)
• Parties: The VILLAGE OF LAKE VILLA, Appellant, v. Dorothy STOKOVICH et al., Appellees.
• Court: Illinois Supreme Court

810 N.E.2d 13

211 Ill.2d 106

284 Ill.Dec. 360

The VILLAGE OF LAKE VILLA, Appellant, v.Dorothy STOKOVICH et al., Appellees.

No. 95118.

Supreme Court of Illinois.

February 20, 2004.

Rehearing Denied May 24, 2004.

John M. Mullen, Libertyville, for appellant.

Mara S. Georges, CorporationCounsel, Chicago (Lawrence Resenthal, Benna Ruth Solomon and Erica M. Landsberg, of counsel), for amicus curiaeCity of Chicago.

Roger Huebner, Springfield, for amicus curiae Illinois Municipal League.

Justice GARMANdelivered the opinion of the court:

In 1998, plaintiff, Village of Lake Villa, sought authorization from the circuit court of Lake County, pursuant to section 11-31-1 of the Illinois Municipal Code(Code)(65 ILCS 5/11-31-1(a)(West 1996)), to demolish a structure owned by the defendants, Dorothy Stokovich, as trustee under a trust agreement dated September 16, 1992, and Nick Stokovich, her son.After a hearing, the circuit court entered an order of demolition and the property owners appealed.After a lengthy and convoluted procedural history, the appellate court eventually found section 11-31-1 of the Code unconstitutional on due process grounds.334 Ill.App.3d 488, 268 Ill.Dec. 484, 778 N.E.2d 750.We reverse.

BACKGROUND

The structure at issue is approximately 100 years old and was used from 1949 until 1977 as a nursing home.It was subsequently occupied for several years by a caretaker and then by Nick Stokovich.It has been unoccupied since at least 1992.

In 1997, the Village informed the property owners by means of a "red card" posted on the building and a letter sent to Dorothy Stokovich that the building was unsafe, abandoned, dilapidated, and animal infested.The letter informed her that the building must either be brought into conformance with the building code or be demolished.In addition, she was informed that repair work could not commence until the building had undergone an inspection and the proper permits were obtained.Further correspondence between the Village and the property owners ensued.Eventually, when no permits were sought, the Village filed a complaint for demolition.

A thorough review of the evidence reveals that the summary contained in the appellate court opinion is accurate.See334 Ill.App.3d at 491-98, 268 Ill.Dec. 484, 778 N.E.2d 750.The circuit court found the building unsafe and dangerous, based on testimony regarding the risk of communicable disease evinced by animal droppings, the presence of methane gas, potential contamination of the Village's water supply, and structurally weak ceiling rafters.The circuit court also found that the value of the building was approximately $100,000; the cost of repair would be approximately $75,000; and such an expenditure would constitute "substantial renovation" of the building.The circuit court entered an order of demolition.

On appeal, the property owners argued that section 11-31-1 of the Code, which permits demolition of "dangerous and unsafe buildings or uncompleted and abandoned buildings"(65 ILCS 5/11-31-1(a)(West 1996)), violates the due process guarantees of both the United States and Illinois Constitutions (U.S. Const., amends. V, XIV;Ill. Const. 1970, art. I, §§ 2,15).Specifically, they contended that ordering demolition upon a finding that the building is dangerous and unsafe, without first allowing the property owner to repair the property, constitutes an unlawful taking without due process and without just compensation.

The appellate court held the statute unconstitutional "because it authorizes a municipality to take private property without compensation and without due process by demolishing or requiring demolition without first giving the owner the choices of repairing the property within a reasonable time and of spending whatever it costs to bring the property into compliance."334 Ill.App.3d at 503-04, 268 Ill.Dec. 484, 778 N.E.2d 750.The appellate court agreed with the property owners that, absent an "imminent threat to the safety of persons or property"(334 Ill.App.3d at 502, 268 Ill.Dec. 484, 778 N.E.2d 750), they should have been afforded reasonable time afterthe circuit court's finding that the structure was dangerous and unsafe in which to make the necessary repairs.Further, the property owners argued, and the appellate court agreed, that whether the building was suitable for repair was the owners' decision, not a question to be answered by the court.In effect, the statute unconstitutionally denies them "the opportunity of doing whatever is necessary" to repair the building "at whatever cost"they are willing to spend.334 Ill.App.3d at 503, 268 Ill.Dec. 484, 778 N.E.2d 750.

As appellant, the Village makes five arguments to this court: (1) the property owners' constitutional challenge should not be heard because they failed to comply with Supreme Court Rule 19(134 Ill.2d R. 19);(2) the property owners lack standing to raise the constitutional challenge; (3)section 11-31-1 does not violate due process; (4) even if the statute is found to violate due process, the appellate court's ruling is internally inconsistent and overbroad and should be corrected by this court; and, finally, (5) the order for demolition should stand because the structure at issue in this case cannot possibly be brought into conformance with current zoning requirements.

Pursuant to Supreme Court Rule 345(155 Ill.2d R. 345), we have permitted the City of Chicago and the Illinois Municipal League to file a brief amicus curiae.Amici argue that section 11-31-1 is a constitutionally permissible exercise of municipal police power.

COMPLIANCE WITH RULE 19

The property owners first raised the constitutional issue in their April 14, 1998, motion to dismiss the Village's complaint for demolition.The record does not contain the Village's response to the motion to dismiss.However, the record does contain the property owners' reply to that response, which does not mention a Rule 19 objection having been made.Thus, it appears that the Village did not invoke Rule 19 in the trial court.

The property owners raised the constitutional issue again on appeal and the Village responded that the constitutional claim was barred for failure to comply with Rule 19.Thereafter, the property owners sought leave from the appellate court to comply with Rule 19.The appellate court granted leave to comply on February 15, 2001.On February 26, 2001, the property owners filed notice in the appellate court that they had given notice to the Attorney General of their constitutional challenge to a state statute, as required by Rule 19.The Attorney General responded by letter, advising the property owners that he declined to intervene in the matter.A copy of the letter was filed with the appellate court on March 16, 2001.In the end, the appellate court declined to address the constitutional challenge to the statute based on its factual finding that the property owners had the opportunity to choose whether to repair or demolish their building prior to the Village's demand for demolition.Village of Lake Villa v. Stokovich,No. 2-00-0943, 323 Ill.App.3d 1156, 279 Ill.Dec. 601, 800 N.E.2d 889(2001)(unpublished order under Supreme Court Rule 23).

The property owners then filed a petition for leave to appeal, which this court denied on February 6, 2002.However, this court entered a supervisory order directing the appellate court to vacate its affirmance of the demolition order and to address the property owners' claim that section 11-13-1 is unconstitutional.Village of Lake Villa v. Stokovich,198 Ill.2d 593, 260 Ill.Dec. 853, 762 N.E.2d 512(2002)(supervisory order).

When the Village again argued to the appellate court that the property owners' constitutional claim was barred by failure to comply with Rule 19, the appellate court concluded that because the property owners had, by that time, complied with Rule 19, their constitutional claim was not barred.334 Ill.App.3d at 499, 268 Ill.Dec. 484, 778 N.E.2d 750.The appellate court eventually held that section 11-31-1 is unconstitutional and this court granted the Village's petition for leave to appeal.Before this court, the Village again asserts that the matter was not properly before the appellate court due to the property owners' failure to satisfy the requirements of Rule 19, and, thus, should not be considered by this court.

This court has never before had occasion to address the effect of noncompliance, or delayed compliance, with Supreme Court Rule 19.Under this rule, a litigant challenging the constitutionality of a statute, ordinance, or administrative regulation must serve notice of the challenge upon the Attorney General or other affected agency or officer.134 Ill.2d R. 19(a)."The notice shall identify the particular statute * * * and shall briefly describe the nature of the constitutional challenge."134 Ill.2d R. 19(b).The rule also contains a timing requirement: "The notice shall be served at the time of suit, answer or counterclaim, if constitutionality is raised at that level, or promptly after the constitutional question arises as a result of a circuit or reviewing court ruling or judgment."134 Ill.2d R. 19(b).The purpose of the notice is to give the affected agency or officer the opportunity to intervene in the proceeding for the purpose of defending the constitutionality of the statute, ordinance, or administrative regulation.134 Ill.2d R. 19(c).Because the property owners did eventually comply with Rule 19, and because no issue is raised as to the content of the notice, the Village's claim must be understood to be based on the timing of the notice.

The Village claims that its due process rights were violated when the appellate court granted leave to the property owners to comply with Rule 19 after the Village had already filed its brief.The Village does not explain how its due process rights were violated and the case it cites as support, Delarosa v. Approved...