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City of Alton v. Carroll

OPINION FILED SEPTEMBER 9, 1982.

THE CITY OF ALTON, PLAINTIFF-APPELLEE,

v.

ROBERT H. CARROLL ET AL., DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Madison County; the Hon. John W. Day, Judge, presiding. JUSTICE JONES DELIVERED THE OPINION OF THE COURT:

Defendants Robert and Barbara Carroll appeal from a judgment of the circuit court of Madison County ordering the demolition of a building found to be "dangerous and unsafe" under section 11-31-1 of the Illinois Municipal Code (Ill. Rev. Stat. 1979, ch. 24, par. 11-31-1) and section 5-1-8 of the City Code of Alton, Illinois. They contend that there was insufficient evidence to establish that the building is dangerous and unsafe and that the trial court erred in not specifying in its judgment the particular defects which rendered the building unsafe. Defendants further contend that the court failed to provide them a reasonable opportunity to repair the building in question prior to ordering its demolition and so violated their constitutional rights of due process. Defendants also assert that the trial court erred in ordering the demolition of a building having historical and architectural significance.

The building here involved is an L-shaped, two-story brick structure located in a residential area of the city of Alton. It is a "vintage" structure, dating from before the turn of the century. Prior to 1977, the building was used for multiresidential purposes under a nonconforming use status in an area that is zoned for single-family residences. After being vacated in 1977, the structure was damaged by two different fires, one in 1977 and one in 1980. Following the first fire, the doors and windows were boarded up and a chain link fence was erected around the building.

On May 16, 1977, the Carrolls were notified by a letter from the Alton city building inspector that the building had been inspected and found to be "totally vacant, vandalized, and open at a number of windows." They were given 30 days in which either to demolish the structure or repair it to comply with the minimum standards of the city's building, electric, and plumbing codes. In spite of this and similar correspondence subsequently received by the Carrolls, they made no improvements to the building other than to secure it against further vandalism as described.

On February 22, 1981, the city of Alton filed a complaint against the Carrolls, as owners of the subject property, and the Greenland Co., Inc., and the Farmers State Bank of Greenfield, as mortgagees of the property, seeking an order authorizing the demolition of the building in question. The complaint alleged that the building was dangerous and unsafe in that it was "open at door and window; structurally unsound; fire hazard; generally deteriorated; and beyond reasonable repair." The complaint further alleged that the total cost to repair the defects would exceed the market value of the property as repaired and that the defendants had failed to repair or demolish the building upon notice to that effect by the City.

At trial Rhaban Hoene, Director of Building, Housing and Zoning for the city of Alton, testified that, as a result of the two fires in 1977 and 1980,

"[t]he interior [of the subject building] is completely gutted. What we have is an outer shell of masonry, and we have a roof plus interior walls; but there was some structural damage to ceilings and also walls. The building is not in a state of collapse to define it; but we have a fire-gutted shell, and that's all. There is evidence of further deterioration on the outside due to the elements working on it and especially in corners where the soffit has deteriorated to the point of falling out * * *."

Mr. Hoene stated further that some of the bricks have actually fallen, and that the fire damage was so severe that the electrical and plumbing services would have to be redone entirely, both as a matter of necessity and in order to meet minimal housing codes. Heating and cooling services are also nonexistent. The ceilings are burned through with holes of various sizes between the two floors, some large enough to warrant the replacement of entire ceilings.

Mr. Hoene stated that in his opinion the cost to improve the structure would exceed the market value of the house when so improved. His opinion was based upon the expenditures necessary to rehabilitate the house so as to bring it within the minimal standards of the housing code.

On cross-examination Mr. Hoene testified that because the walls of the house were of brick, its structural integrity was not impaired by the fires but that it would be necessary to replace weight-bearing components such as ceiling beams in order to make the building useable.

Dr. Carroll, defendant and owner of the house, testified that he had trouble stabilizing the house after he purchased it in 1976 because it was vandalized repeatedly. His intention at that time was to restore it for use as a single-family residence but, while he has made some improvements to an auxiliary structure on the back of the house, he has not significantly improved the main structure. During this period of time, he has maintained a dusk-to-dawn light on the back corner of the lot. He checks the premises regularly and hires a man to keep the yard mowed.

Phil Poehner, a professional real estate broker specializing in old house sales and renovations in the inner city of Alton, testified that the building in question has been identified by the Illinois Register as one of the top 50 architecturally significant buildings in Alton, although it has not yet been listed on the Register. The defendants have engaged Mr. Poehner to sell the house and have it listed with him for $15,000. He testified that the house could be renovated for $30,000. Renovation would include adding two full baths and a complete kitchen, doing the dry wall, floor work, window and door restoration, repairing the brick on the back of the house which has been partially demolished, putting in all new wiring, plumbing, heating and central air, and decorating it with good wallpaper. Mr. Peohner estimated that the fair market value of the house after being so renovated would be between $49,900 and $54,000. His figures were based on a replacement cost factor less depreciation and also comparable market values of properties of similar size in similar neighborhoods.

Mr. Poehner stated that when he was in the house four years ago it was in a dangerous and unsafe condition but that it was not presently dangerous because it would be very difficult to enter the building. Even assuming that the cost of repairing the structure would be greater than its market value when repaired, Poehner was of the opinion that the house should not be demolished because of its architectural merit.

In its judgment entered on June 10, 1981, the trial court found the structure to be "dangerous and unsafe and not reasonably repairable." The court noted that the building has been gutted by two serious fires, that vandals have removed certain fixtures and that large holes exist in the ceilings and floors. It is located near a public park which contains a playground, a golf course and ball diamonds. The court further stated that while the building is presently boarded up and fenced, there has been no attempt to repair it since it was first burned and, under the statute, it is not a defense to an action for an order of demolition that the building is boarded up or otherwise enclosed. It was the court's finding, "based on the evidence at trial, that the state of deterioration is such that repairs ...


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