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City of Urbana v. Houser

OPINION FILED JUNE 1, 1977.

THE CITY OF URBANA, APPELLANT,

v.

ROGER L. HOUSER ET AL., APPELLEES.



Appeal from the Circuit Court of Champaign County, the Hon. Creed D. Tucker, Judge, presiding.

MR. JUSTICE DOOLEY DELIVERED THE OPINION OF THE COURT:

Rehearing denied October 3, 1977.

In 1976 the city of Urbana, a home rule municipality within the meaning of section 6, article VII, of the Constitution of 1970, filed a complaint for a demolition. It alleged a structure within the municipal limits was so dangerous and unsafe that the condition could not be eliminated by repair and that the building official of the city had declared the structure dangerous within the meaning of section 11-31-1 of the Illinois Municipal Code (Ill. Rev. Stat. 1975, ch. 24, par. 11-31-1).

A motion to dismiss was made. It urged a want of authority by the city to maintain the action, since the demolition statute was amended in 1971, and contained this final sentence: "This amendatory Act of 1971 does not apply within the jurisdiction of any home rule unit" (Ill. Rev. Stat. 1971, ch. 24, par. 11-31-1). The circuit court dismissed the action on the ground the city lacked authority to conduct demolition proceedings.

According to the circuit court, the statute on which the demolition proceeding was predicated was prohibited to home rule municipalities because of the sentence set forth in the 1971 amendment. To empower itself, an ordinance would be necessary.

From this order of the circuit court, an appeal was taken to the appellate court. It was transferred to this court pursuant to Rule 302(b) (58 Ill.2d R. 302(b)). Does a home rule unit lack the demolition authority conferred on it by statute prior to the 1970 Constitution because that statute was amended with a sentence that "[t]his amendatory Act of 1971 does not apply within the jurisdiction of any home rule unit"? That is the question before us.

The statute upon which the action was based (Ill. Rev. Stat. 1971, ch. 24, par. 11-31-1) is substantially a restatement of a 1953 statute (Ill. Rev. Stat. 1953, ch. 24, par. 23-70.2). In general it authorizes each municipality to "demolish, repair or cause the demolition or repair of dangerous and unsafe buildings * * * within the territory of any such municipality." (Ill. Rev. Stat. 1971, ch. 24, par. 11-31-1.) It provides for an expedited hearing by the circuit court and the creation of a lien for demolition costs. In 1971 this statute was amended to provide that a county board with a statutory health department may demolish any dangerous and unsafe buildings within the territory of any city or village or incorporated town having less than 50,000 population.

It is this sentence of the 1971 amendment which is the basis of this litigation: "This amendatory Act of 1971 does not apply within the jurisdiction of any home rule unit." (Ill. Rev. Stat. 1971, ch. 24, par. 11-31-1.) Prior to the 1970 Constitution, municipalities had demolition powers based on a statute. (See section 11-31-1 of the Illinois Municipal Code, Ill. Rev. Stat. 1965, ch. 24, par. 11-31-1, and City of Chicago v. Birnbaum (1971), 49 Ill.2d 250, 253.) This statute was first enacted in 1953. Under the 1971 amendatory act (Ill. Rev. Stat. 1971, ch. 24, par. 11-31-1), as construed by the circuit court, demolition powers would be accorded non-home-rule units but denied home rule units.

We do not believe this 1971 amendment can be construed as amending the statute so as to deny a home rule unit powers given it by the Constitution of 1970.

Article VII, section 6(a), of the 1970 Constitution provides the extent of the powers conferred on home rule units:

"* * * Except as limited by this Section, a home rule unit may exercise any power and perform any function pertaining to its government and affairs including, but not limited to, the power to regulate for the protection of the public health, safety, morals and welfare; to license; to tax; and to incur debt."

It has been noted that the terms of this grant of powers were purposely left without definition so that they might be broad. Ampersand, Inc. v. Finley (1975), 61 Ill.2d 537, 539; Thorpe, An Analysis of Anticipated Problems Under the New Home Rule Article of the Illinois Constitution, 50 Ill. Mun. Rev. 4 ...


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