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MCKENZIE v. CITY OF CHICAGO

May 5, 1997

KEITH MCKENZIE, and REV. DANIEL. VINSON, on behalf of themselves and others similarly situated, Plaintiffs,
v.
THE CITY OF CHICAGO, a municipal corporation, RICHARD M. DALEY, individually and as Mayor of the City of Chicago, CHERRYL THOMAS, individually and as Building Commissioner of the City of Chicago, RON MCDERMOTT, individually and head of the Fast Track Demolition Program of the City of Chicago, and JOHN DOES 1 - 20, Defendants.



The opinion of the court was delivered by: CASTILLO

 RELEVANT FACTS

 The Ordinance

 Illinois statute 65 ILCS 5/11-31-1 sets out various options for local governments that wish to abate the problems created by "dangerous and unsafe buildings" and abandoned buildings. Under 5/11-31-1(a), the government may apply to the local circuit court for an order authorizing it to demolish, repair, or board up a building, or requiring the building's owners to do any of those things, if the owners have not taken sufficient action within 15 days after being sent notice of the problems. The mechanism for taking advantage of this provision in the City of Chicago is bringing an action in a court referred to as the "Demolition Court." This court is designed to provide an expedited process for hearing cases involving buildings that, in the City's opinion, require demolition.

 A different subsection of the state statute, 5/11-31-1(e), permits municipalities to expedite even further the removal of residential buildings two stories or less in height that pose a "continuing hazard to the community in which they are located." The City of Chicago has enacted an ordinance, 13-9-010, that tracks subsection (e), and since at least 1994 has operated the Fast Track Demolition Program under the auspices of the ordinance and the city Building Department. *fn1" At the present time, the parties estimate that the City demolishes somewhere between 200 and 1000 buildings every year through the Fast Track program.

 The Ordinance requires three methods of providing notice to persons who may have a legal interest in the building. First, a sign not less than two feet by two feet must be posted on the building, informing the reader that the City has determined that the building is subject to demolition, repair or enclosure by the City unless the owner takes these actions within 30 days. Not more than 30 days after the sign is posted, a similar notice must also be sent via certified mail to all record owners, all beneficial owners, and all mortgage holders and lien holders. Finally, the City must publish a similar notice in a newspaper for three consecutive days. Thirty days after the latest of the dates of notice, the City may take action to demolish the building. The City has no authority under Fast Track to demolish buildings more than 120 days after the date of the first notice.

 The Ordinance provides owners with some ways to avoid the destruction of their building. First, the owner may file suit to prevent the demolition. The Ordinance provides that once a person has served the Mayor with a copy of the complaint, the City may not take any further action with respect to that building until the court finds that such action is necessary to remedy a hazard and issues an order authorizing further action. The Ordinance states that the complaint must be filed in a "court of competent jurisdiction," without specifying any particular court or procedure which must be followed. There is no provision waiving or reducing the filing fees normally charged for filing a civil complaint.

 The City's Account of the Fast Track Process

 The City's implementation of the Ordinance via the Fast Track program typically begins with a request to one of the City's 16 demolition inspectors to inspect a building that may be eligible for demolition. The Building Department may have received complaints about the building, or the building may have been identified as potentially eligible for demolition by a passing inspector. An inspector then visits the property for an initial determination about whether the building should be placed into the Fast Track demolition program. At this first visit, the inspector will examine the outside of the house, and generally the inside as well, and take photographs, marking the address and date on the photograph. Afterwards, the inspector will write up a report on the building, noting various aspects of the building's condition, including the state of the electrical and plumbing systems, the structural elements, and the external and internal walls and floors. A very rough estimate of the percentage of deterioration is made, and the inspector notes whether the building is vacant and open. The inspector will then complete a form either recommending that the house be processed for demolition through Fast Track or not. If the building is open, the inspector will generally recommend that it be placed in Fast Track, regardless of the extent of deterioration.

 The inspection report, recommendation and photographs are then given to the inspector's supervisor, who decides whether the building should be assigned to Fast Track. Fast Track employees have testified that the primary factors considered in this decision are whether the building meets the formal requirements of Fast Track--it is at least 50% residential, and two stories or less--and whether it is "open" in the sense of being accessible by means of any opening in the building. If a building is not eligible for Fast Track, the supervisor may decide to refer it to some other part of the Building Department, such as the Demolition or Conservation divisions. Again, the general condition of the building is not a significant factor in this determination. Ron McDermott, who acts as the director of the Fast Track program, personally reviews all of the initial inspection reports and photographs of buildings slated for Fast Track to verify that the assignment is correct.

 If a building is assigned to Fast Track, the administrative side of the process begins, as the Department prepares to give notice of the Fast Track process to interested parties. The first step is identifying the persons to whom the mailed notice should be sent. Building Department attorneys order title searches from a title company. Once the title search arrives, an attorney takes it to the Cook County Recorder of Deeds, where he uses the Sidwell plats to verify that the legal description and Property Identification Numbers are accurate. If there is a question about the proper address for the property, the attorney checks with the City's Maps, Graphics, Cartography Division of the Department of Planning and Development. The attorney who works primarily with the Fast Track program, Christopher Ditton, testifies that he attempts to resolve any remaining questions he may have about the nature of various parties' interests in the property by consulting the "Realinfo" computerized database, which lists all transactions on a particular property. If he still has questions, he examines the actual documents on file at the Recorder of Deeds. When a land trust has an interest in the property, he contacts the trustee and requests the names of the beneficiaries, so that notice can be sent to them. For each property, the attorney also consults the Cook County lists of tax buyers for the years 1991, 1993, and 1995, to see if anyone has bought taxes for the property. In addition, the attorney notes the identity of the last known taxpayer for the property.

 Once these records have been reviewed, the attorney assembles a "party list," on which he lists the names and addresses of all persons who may have a legal interest in the property. Typically, this list contains the names and addresses of the owners of record, mortgage holders, lien holders, the last taxpayer of record, and land trust beneficiaries. The list may also include tax buyers and anyone who has filed a petition or a Chancery Division case concerning the property. The addresses are taken from the deeds, and from the records of the last known taxpayer. Addresses for corporations are determined by consulting various corporate directories, the Recorder of Deeds grantor/grantee index, and addresses given on the deed.

 Once the party list is prepared, the City is ready to proceed with placing the property into Fast Track officially. An inspector visits the house a second time, to verify that it is still eligible for Fast Track (i.e., still open), and to post the Fast Track sign. The inspector once again photographs the house, marking the location of the openings in the house that led him to find that the property was open, and photographing the sign upon the house. McDermott again personally reviews all of the photographs and recommendations from the second inspection. In the event that he determines that the building is not eligible for Fast Track at that point in time, he may refer it to another division of the Building Department, or he may "monitor the file and possibly re-inspect the property at a later date." McDermott decl. P 22. In the event that Fast Track keeps the file open for "monitoring" and notices have not yet been issued for that property, McDermott states that the standard Fast Track notices are provided if and when the property once more becomes eligible for Fast Track.

 At the same time (or sometimes even a day or two before this second inspection), the City prints up the letters of Fast Track notice to send to the persons listed on the party list. The letters warn that the property is subject to Fast Track demolition unless it is demolished, repaired or boarded up within 30 days. The letters, like the Fast Track sign and the Fast Track publication notice, refer to the ordinance and statute, and they also state that the recipient may "object" by "filing legal action in a court of competent jurisdiction." *fn3" The City mails these letters out by United States mail, certified and return receipt requested. There is no evidence in the record about whether the postal service forwards such letters; the envelopes are not marked "Please Forward" or "Address Correction Requested." McDermott testified that he believes that some of the letters may be forwarded. Letters returned to the City with different addresses noted on them are not re-sent to the other addresses, nor are those addresses used to update the party list. About this time, the City publishes in the Chicago Sun-Times, for three consecutive days, a notice listing a number of houses that are scheduled for Fast Track demolition. This notice lists the houses by address only; it gives no owners' names.

 The Ordinance does not set out any procedures to be followed in the event that a building is repaired or enclosed within the 30-day period. Ron McDermott, the person responsible for administering Fast Track, testified that in practice there are a number of options. If the building has been boarded up, he may refer the building to the Building Department's Demolition Division, which seeks court orders of demolition in the Demolition Court. Second, some buildings may be referred to the Conservation Division, which enforces the City's building codes. If the building is being repaired or renovated, it may be referred to the New Construction Division, which enforces City Ordinances relating to renovation or new construction. In some cases, typically because the owner himself has demolished the building, the building will be removed from Fast Track and the file will be closed. Finally, McDermott may decide to keep the building in the Fast Track program, but monitor the file and re-inspect the property at a later date. McDermott decl. PP 27-29. In the event that McDermott retains the building in the Fast Track program and monitors it, and later concludes that it should be demolished, he does not issue additional notice of the demolition to the owners and lienholders. In fact, once the initial notices have been sent out, the Fast Track program does not have any procedure for notifying owners about any of the dispositions made concerning their buildings. Owners attempting repairs, for example, are not given any formal notice about whether or not the repairs are sufficient to remove the building from the Fast Track program.

 Between thirty and forty days after the last date of notice, an inspector conducts a third and final inspection. Once again, the inspector takes photographs and marks them to indicate any openings. In general, if the building is still open, the inspector recommends demolition. At this point, McDermott reviews the entire file to see whether demolition is appropriate. In addition to reviewing the photographs and reports to make sure that the building meets Fast Track's requirements, McDermott also checks for documentary evidence that all three forms of notice have been provided. If he does not find such evidence, he will halt the Fast Track process and instead re-initiate the Fast Track notice procedures. McDermott occasionally determines that, even though a building meets Fast Track requirements, it should not be demolished. In that case, he may have it boarded up by the City, or he may refer the property to the Chicago Abandoned Property Program (CAPP), a program that allows community groups to purchase buildings for their own uses. If he decides that demolition is appropriate, he notifies the City's purchasing department, which collects bids on the demolition job and selects a contractor. Demolition can occur from several days to several weeks after the Fast Track program issues the contractor its authorization letter.

 The Fast Track office also receives telephone calls once the demolition has occurred. McDermott testified that it is "very common" for the office to get calls complaining about the demolition or saying "Why did you tear it down?" McDermott dep. at 39-40. McDermott also stated that he is aware of at least ten wrongful demolition lawsuits against the City. Id. at 40-41.

 The Evidentiary Record

 The plaintiffs challenge the constitutionality of the Ordinance, both as written and as applied, saying that it causes deprivations of property without due process of law. For the facial challenge, the plaintiffs allege that the overall scheme created by the Ordinance does not provide for adequate notice or an opportunity to be heard. In their challenge to the Ordinance as applied, the plaintiffs point to specific cases where the City did not give proper notice prior to demolition, and other cases where buildings were demolished despite the owners' rehabilitation efforts and the City's assurances that it would conduct additional inspections before approving demolition. As part of this challenge, the plaintiffs charge that the City frequently errs in assigning buildings to the Fast Track program, resulting in the needless destruction of buildings. The plaintiffs also appear to raise a substantive due process claim, alleging that the Fast Track scheme improperly permits Fast Track officials to make arbitrary and capricious determinations resulting in the destruction of private property.

 In support of their positions on the request for a preliminary injunction, the parties have submitted evidence regarding the sufficiency of notice and other relevant aspects of several categories of properties: (1) properties belonging to the named plaintiffs, including those who recently moved successfully to intervene in this action; (2) the 76 properties for which Fast Track notices were issued on February 14, 1997; and (3) the last 25 buildings demolished in 1996. We review the evidence as to these properties below.

 Named Plaintiffs

 Keith McKenzie

 Plaintiff McKenzie alleges that he was the owner of a house at 3834 West Fillmore Street in Chicago. He broke his ankle on September 9, 1996, and was hospitalized. Thereafter, he stayed with friends. The house at 3834 West Fillmore was demolished by the City under the Fast Track program in late September, 1996. McKenzie received no advance notice of the demolition. In response to these allegations, the City notes that McKenzie's interest was not recorded on the title and tax records it searched, and thus, it did not mail him notice. One Fast Track letter was sent to a former owner at 3834 West Fillmore; it was returned, marked "vacant." Def. Ex. 106. Photographs of the property taken in July, 1996, on the date that the Fast Track sign is reported to have been posted, do not show that any sign was posted.

 Rev. Daniel Vinson

 Rev. Daniel Vinson and his wife owned a greystone building at 4107 West Adams Street. The building was a gift to the church of which Vinson is the pastor. In September 1995, a sign stating that the building had been placed in the Fast Track program was posted on the building. Vinson immediately contacted an attorney at the Legal Assistance Foundation of Chicago. The attorney wrote John Pope, who was then the Director of the Fast Track program, and also spoke to Ron McDermott, then Pope's assistant, on September 13, 1995. The attorney told the Fast Track officials that the property was being renovated, and they agreed not to demolish the property, but instead to monitor it. The officials allegedly said that if they "ever wanted to do anything more than monitor it," they would send notice by registered mail. Nothing in the file for 4107 West Adams reflects the above communications. Def. Ex. 105. McDermott testifies that he does not recall ever speaking with Vinson, and states that Pope left the Fast Track program in January, 1996.

 Vinson obtained a rehabilitation and renovation loan, and began renovation. During the summer of 1996, the City began preparations to place 4107 West Adams in the Fast Track program again. The City performed a title search on July 8, 1996, which did not show any recorded interest by Vinson. The only Fast Track notices mailed out for the property were issued on July 19 and 26, 1996, and were based on the July 8 search. On August 29, 1996, the City performed a second title search, which disclosed Vinson and his wife as owners of the property. No mailed notice was sent to the Vinsons, however. McDermott does not know why the second title search was ordered, or why no letter was mailed to the Vinsons.

 A second inspection was made and a Fast Track sign was posted on July 19, 1996. After he saw the sign, Vinson called the Fast Track office and spoke to someone who told him that the building would not be demolished. A final inspection was performed on September 5, at which time the inspector recommended that the building not be demolished because it was "secure" (boarded up). This recommendation was overruled by McDermott on September 11, 1996. On September 12, 1996, the City authorized demolition and sent the demolition out to be bid. The City did not notify Vinson. The building was demolished on November 6, 1996.

 John and Beverly DeMarco

 The DeMarcos owned a house at 3748 South Wolcott. In past years, they had been in Housing Court for housing code violations. These were resolved, and the housing case was dismissed in October, 1995. Thereafter, the DeMarcos allege that they lived at 3748 South Wolcott during the summer, and lived in Florida during the winter. While they were in Florida, one or more of their adult children would sometimes live in the house.

 On November 18, 1996, the Building Department received a request from the 11th Ward office to re-inspect 3748 South Wolcott. The house was reported to be abandoned and in violation of building codes. On December 12, 1996, a Fast Track inspector visited the house. He found that the building was "vacant and open," although there were also signs that someone was living in the house at the time--for instance, the living room light was on, and there was a substantial amount of personal property in the house. He also found that the house was structurally dangerous, as the support beam in the basement was dry rotted, as were the floors and joists. Photographs accompanied his recommendation for emergency demolition.

 One week later, the City began to process the demolition recommendation. A list of the owners and other interested persons disclosed John DeMarco as the last known taxpayer, and that a land trust represented by the Marquette National Bank owned the house. On December 20, the Building Commissioner instructed the Department's Purchasing Agent to send the emergency demolition job out for bid. The demolition authorization notice was issued to the contractor on December 24, and the house was demolished on December 27, 1996. Def. Ex. 110.

 At no time during this process were the DeMarcos notified of the impending demolition by the City. The DeMarcos were told of the demolition by a neighbor who saw it, and John DeMarco arrived just as the demolition as being completed. The Department's administrative processes resumed on Monday, December 30, when it requested the names of the land trust beneficiaries from Marquette National on an expedited basis, and the bank faxed the DeMarco's information back to the City that same day. The record does not reflect whether the City then attempted to contact the DeMarcos after that. McDermott testified that this demolition was not part of the Fast Track program; rather, it was an emergency demolition. The City is not required to provide advance notice when a demolition is scheduled as an emergency.

 Wilburn Richards

 Wilburn Richards is the record owner of property located at 1224 West. Rep. 51st Street, with a secondary address of 5055 South Elizabeth Street. An inspector found that the house and garage on the property were open, in poor condition, and that there was evidence of squatters. The Fast Track sign was posted on the house on February 11, 1997, and Richards signed a card indicating that he received the mailed Fast Track notice on February 27, 1997. Def. Ex. 1.

 Richards is one of the plaintiffs who successfully sought to intervene in this action in order to move for a temporary injunction preventing demolition of the 76 properties identified in the February 14, 1997 publication notice. Richards states that he is diligently attempting to keep the property boarded up in order to avoid demolition under the Fast Track program. Photographs taken over a period of five days in mid-March indicate that, although the house is substantially boarded up, one or two windows on the upper floors are accessible, and the front door has been battered open. Graffiti has been added to one wall. The City has indicated that, although it will treat Richards' presence in this case as an "objection" sufficient to prevent demolition under the Ordinance, it intends to seek an order from this court or another permitting it to demolish the house and garage unless they are cleaned of debris and adequately secured.

 Honeywood Development, Inc. is a housing development corporation that buys properties in need of rehabilitation, rehabs them, and sells them. Dollars Express, Inc. is a former business name of Honeywood. At any given time, Honeywood has an inventory of 75 to 100 properties in development. It is common for Honeywood to buy certain properties as joint ventures with individual investors, and place the title in that investor's name but list their own address on legal documents. Honeywood also sometimes holds the title itself. At least eight Honeywood properties ...


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