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12/21/95 CITY CHICAGO v. CHICAGO BOARD EDUCATION

December 21, 1995

CITY OF CHICAGO, A MUNICIPAL CORPORATION, PLAINTIFF-APPELLANT,
v.
CHICAGO BOARD OF EDUCATION, DEFENDANT-APPELLANT, (SHEILA LYNE, CONTEMNOR-APPELLANT; JOEL J. BELLOWS, GUARDIAN-APPELLEE).



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE MORTON ZWICK, JUDGE PRESIDING.

Petition for Leave to Appeal Denied April 3, 1996.

Presiding Justice Hoffman delivered the opinion of the court: Cahill and Theis, JJ., concur.

The opinion of the court was delivered by: Hoffman

PRESIDING JUSTICE HOFFMAN delivered the opinion of the court:

This case began in October 1992 as a rather straightforward municipal ordinance violation action by the City of Chicago (City) against the Chicago Board of Education (Board). In its complaint, the City alleged the existence of 13 violations of its municipal code within the Lawndale Academy, a public elementary school owned and operated by the Board. Six of those violations related to loose or fallen plaster in specified locations and the remaining seven violations involved the fire alarm system, exit signs, fire extinguishers, and a locked exit door. The City's complaint was pled in two counts. Count I sought monetary fines and count II sought, inter alia, an injunction mandating that the Board correct all of the violations alleged to exist within the school. In the eight months that followed, this case was the subject of approximately 21 court hearings. During the course of those hearings, this action underwent a metamorphosis resulting in the appointment of a guardian ad litem for all of the students of the Lawndale Academy, an injunction against the City requiring it to conduct blood tests on all of those students, an order directing the incarceration of the Commissioner of the Chicago Health Department until such time as she agreed to comply with the injunction, and a judgment against the Board in excess of $36,000 for fees and costs incurred by the court-appointed guardian. The City has appealed, its Commissioner of Health, Sheila Lyne, has appealed, and the Board has appealed.

Our disposition of these consolidated appeals requires some recitation of the proceedings which resulted in the entry of the orders we are called upon to review. However, because of the number of hearings that were conducted by the trial court and the specific issues raised by the appellants, we will summarize the procedural history of this case to the extent necessary for an understanding of our disposition.

At a hearing on January 21, 1993, the court fined the Board $100 for failing to correct the fire extinguisher and exit sign violations alleged in the City's complaint, which the court had ordered be rectified in a prior hearing. The order also provided that the Board would be fined $200 per day for each day after January 26, 1993, that the fire extinguisher and exit sign violations remained unabated. It was at this hearing that the court, acting sua sponte, directed the City to inspect the Lawndale Academy for the presence of lead-based paint. Up to this point in the proceedings, the court had not entered any orders requiring the Board to abate the conditions of loose and fallen plaster alleged in the City's complaint.

We have not been provided with a transcript of the trial court proceedings of February 4, 1993, but from the memorandum entered on the court's half-sheet, it appears that the court 1) vacated the per diem fine levied against the Board; 2) found that the school contained a substantial amount of lead-based paint; and 3) ordered the Board to prepare and file a lead abatement plan. For our purposes, it is important to note that the City's complaint did not seek any relief, either monetary or injunctive, resulting from the presence of lead-based paint within the Lawndale Academy.

The Board evidently complied with the order that it prepare and file a lead abatement plan, because a copy of such plan addressed to the City's health department and signed by representatives of the Board was filed on February 18, 1993. The plan outlined the work to be performed at the school and reflected that the work would begin after March 1, 1993. The notations on the half-sheet for February 18, 1993, indicate "work to begin no later than 3-1-93", and reflect that the matter was continued to March 4, 1993. Apparently nothing of significance occurred at the March 4 hearing, as the half-sheet merely reflects a continuance to March 11, 1993.

The hearing on March 11, 1993, for which we have been provided a complete transcript, is of significance because it resulted in one of the orders from which the Board has appealed, and sets in motion a series of events which ultimately resulted in the entry of the orders from which the City and Commissioner Lyne have appealed. At that hearing, testimony was taken from three witnesses: a fire inspector employed by the City, a Board employee named Scott Vahldick who was supervising the work being done at the school, and Robert Roper, the principal of the Lawndale Academy.

Based upon his recent inspection of the school, the fire inspector testified that he observed extensive plaster damage to the walls and ceilings. When asked if any of the conditions in the school presented an immediate hazard, he opined that the condition of the plaster in room 330 was dangerous because it appeared that it could fall at any time. He also testified that he observed work going forward to remove lead-based paint and to repair the plaster.

Vahldick testified that he was familiar with both the work going forward at the school and the lead abatement plan that had been submitted by the Board and approved by the City's Health Department. He informed the court that 25 workmen were engaged at the school, 16 hours per day, seven days per week, in an effort to complete all of the work within nine weeks. Vahldick described in detail the work being performed and the precautions being taken to ensure that the work was performed safely. Specifically, he testified that access to the work areas was restricted to the workmen and himself, and that the work areas were sealed off from the remainder of the school and put on a separate ventilating system to ensure that during the lead paint removal process, none of the material could become airborne and escape into the general school atmosphere. He also described the protective clothing and masks that the workmen were using to ensure their safety during the removal process. Vahldick testified that all the plaster in the school would be repaired with the completion of the lead abatement plan, which he estimated would take place by May 10, 1993. Vahldick opined that none of the conditions at the school presented any danger to the students.

Roper testified that he too was familiar with the work being done at the school, that it would be completed on schedule, and that it was proceeding safely. He advised the court that the students were being relocated to other areas of the school to ensure that they would not be exposed to the work areas. In response to questions by the court, Roper stated that 950 students ranging in age from three to 14 attended Lawndale Academy. Of these students, only 99 were assigned to classrooms that were scheduled for lead paint abatement.

After admonishing the attorneys that the hearing was for status only, the court entertained argument from attorneys for the City and the Board. Counsel for the City informed the court that the City's health department had determined that the lead-based paint present in the school did not constitute any hazard or danger. He further stated that the City was prepared to accept Vahldick's testimony that adequate precautions were being taken to ensure that the Board's lead paint abatement project would not result in any contaminated waste being released into the general school atmosphere, and that the City was satisfied with the Board's progress to date.

After hearing arguments, the trial court commended the Board on the manner in which it had responded, and went on to observe: "I don't know if anything more could be done to abate what this court has declared to be an injurious and hazardous situation." Referring to the presence of lead based paint in the school building, the trial judge stated: "I don't know whether or not any child has been damaged by this condition." After noting that 950 children attend the Lawndale school, the court stated that the students "are certainly under-represented and are in dire need of someone to look at their situation and to see whether or not there has been any damage." Immediately thereafter, the court, sua sponte, appointed Joel J. Bellows as the students' guardian ad litem. The Board objected to the appointment. After hearing the Board's objection and comments from Bellows, who by coincidence happened to be present in the courtroom, ...


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