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Illinois

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Village of Ringwood v Foster, 932 NE2d 461, 342 Ill Dec 334 (2nd D, 2010).

Facts:In 2007, the Village of Ringwood sought court permission to demolish Deborah Foster's two story apartment building. The building had been damaged by a fire in October 2006. Prior to the fire, the building did not meet local code requirements and, per village ordinances, it could not be restored to its former use. After the fire it remained unoccupied.

At trial, insurance experts and builders testified for the Village that the cost to repair the building would be in excess of fifty percent of its pre-fire value. The Village's regulation at issue provided that if a "nonconforming" structure is destroyed by more than fifty percent of its replacement cost, the building shall not be rebuild or reoccupied. Both parties admitted that the building was nonconforming to the uses permitted in the neighborhood.

Foster presented testimony from an independent contractor and her brother, also a contractor, that the building could be repaired for less than fifty percent of the Village's experts' estimated pre-fire value of the property. Foster also testified that the damage was less severe than depicted by the Village's experts, but that the Village's inspector admitted to her that the Village would never give her the necessary permits because the Village wanted to demolish the building in any event.

The court found the Village's experts' testimony more specific and credible and concluded that the building was at least eighty percent destroyed by the fire. Thus, the court granted permission to demolish the building per the Village's ordinance. Foster appealed.

Holding:Vacated and remanded. First, Foster argued that the court granted permission to demolish the building without sufficient evidence to support that decision. A municipality may demolish a building for, among other reasons, being "dangerous" and "unsafe." 65 ILCS 5/11-31-1(a). Foster argued that these criteria should be measured against the general public, and because the building was not dangerous to passersby, the building was not statutorily dangerous.

The court disagreed. To interpret these words, the court gave a parallel analysis of Subsection 31-1(e), which provides an expedited procedure for eliminating hazards "to the community." Because the legislature addressed hazards to the public in this specific way, the court ruled that Subsection 31-1(a) applied to all unsafe buildings and not merely those that were unsafe for the public. Furthermore, because subsection (a) is authorized by local government's police powers, it should be construed liberally to combat dangers to the public welfare, including dangers to a particular resident.

Next, Foster argued that the trial court erred by (1) referring to the Village's ordinance to determine the reasonable cost of repair, and (2) finding from the evidence that Foster's building was more than fifty percent damages. On the second issue, the court found ample evidence that the damage was well above fifty percent of the building's value, even when eliminating renovations from the repair cost that would bring the building into future code compliance.

To rule on the first issue, the court analyzed previous cases in Illinois. InCity of Aurora v Meyer, 38 Ill 2d 131, 220 NE2d 200 (1967), the Illinois Supreme Court interpreted a virtually identical statute to the one governing the municipal ordinance in this case. The opinion stated that municipalities should not prefer demolition where repair is feasible, so an order to demolish should not be upheld unless the municipality did an adequate job of inquiring into the property's value compared to the cost of repair.

However, inVillage of Lake Villa v Stokovich, 211 Ill 2d 106, 801 NE2d 13 (2004), the Illinois Supreme Court clarified that City of Aurora did not mean that property owners must always be given an opportunity to repair at any cost. In some circumstances, a municipality has an interest in demolition of a badly damaged building that does not violate the property owner's rights. To justify such a demolition, the municipality must determine both that the property is unsafe and that it is beyond reasonable repair.

In this case, City of Aurora does not prescribe a standard different than the municipal ordinance allowing demolition of a building damaged more than 50% of its value. Here, the ordinance also prevents repairs to a building that cannot be brought into compliance with other local code provisions. Therefore, the building could not be "reasonably repaired" and it was appropriate to condemn the building for demolition.

Finally, Foster argued that the Village failed to provide proper notice under the statute to Foster and any lienholders on the property. Although the Village had no responsibility to notify Foster or lienholders of a right to repair, since in this case there was no right to repair, the Village did in fact need to determine if there were lienholders and notify them of the impending demolition. Therefore, the court remanded the case for such a determination. If no lienholers were found, the court would be free to reenter the judgment.

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