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MCKENZIE v. CITY OF CHICAGO

June 24, 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

 In the wake of our recent decision granting the plaintiffs in this action a preliminary injunction, McKenzie v. City of Chicago ("McKenzie I"), 964 F. Supp. 1183, No. 97 C 284, 1997 WL 241801 (N.D. Ill. May 5, 1997), the defendants (collectively, "the City") have moved for reconsideration or, in the alternative, a stay of the injunction pending appeal. Upon careful consideration of the parties' arguments, the newly submitted evidence, and the original evidence, the court denies the City's motion in its entirety.

 At issue are one section of an Illinois statute, 65 ILCS 5/11-31-1(e), and a Chicago city ordinance, § 13-9-010 (collectively, "the Ordinance"), that permit the demolition of certain residential buildings through summary procedures. In Chicago, this summary demolition is overseen by the Fast Track Demolition Program, which is part of the city Department of Buildings. The Fast Track program has operated since approximately 1994, and currently accounts for the demolition of between 200 and 1000 buildings each year.

 A building may be demolished under the Ordinance if it is "a residential building . . . 2 stories or less in height . . ., and the corporate official designated to be in charge of enforcing the municipality's building code determines that the building is open and vacant and an immediate and continuing hazard to the community in which the building is located." 65 ILCS 511-31-1(e). In assigning buildings to Fast Track demolition, the City focuses on the first part of this requirement, "open and vacant." The City believes that any building that is open and vacant--i.e., the interior is accessible to non-owners--is a likely shelter for gang members and criminals, and that the building therefore also meets the requirement that it be "an immediate and continuing hazard to the community." There is no evidence that the condition of the building plays any part in the decision to demolish. Rather, the criteria for demolition are: predominantly residential, two stories or less, vacant, and open.

 The Ordinance requires the municipality to provide three forms of notice of its intent to demolish the building: the posting of a sign not less than two feet by two feet on the building; the mailing of letters to all record owners, beneficial owners of land trusts, and lienholders of record, by certified mail, return receipt requested; and the publication for three consecutive days of a notice in the newspaper. These notices must state that the municipality intends to "demolish, repair, or enclose the building, or remove any garbage, debris, or other hazardous, noxious or unhealthy substances" unless the owner does so himself within 30 days. 65 ILCS 5/11-31-1(e); Chi. Mun. Code § 13-9-010. The Ordinance does not define what is meant by "enclose," nor does it require that a municipality state its specific intent to demolish the building (as opposed to taking any of the other listed actions). The Ordinance does not require the notices to state the specific reasons why the building has been designated as "an immediate and continuing hazard to the community" or list specific actions that must be taken in order to avoid further municipal action.

 Thirty days after the date of the last notice, the municipality may proceed with demolition. Afterward, the municipality may file a lien against the property for costs and expenses related to the demolition. 65 ILCS 5/11-31-1(e); see also Chi. Mun. Code § 13-9-010. The municipality may then move to foreclose on the property if necessary to enforce the lien. 65 ILCS 5/11-31-1(a); Chi. Mun. Code § 13-9-010.

 The City's practice in implementing the Ordinance through its Fast Track program generally mirrors the fairly sparse requirements of the Ordinance. The City makes an initial determination that a building is open and vacant and therefore eligible for Fast Track demolition. It then compiles a list of those persons to whom mailed notice must be directed, as defined by the Ordinance; it sometimes adds the names of those who have recently purchased taxes for the property. If the property is still open and vacant at the next inspection, the City posts the required notice and also issues the mailed and published notices.

 In general, these notices do not provide any information that the Ordinance does not require, so any of the Ordinance's failures to provide information are reflected in the actual Fast Track notices. As with the Ordinance, no notice is given of the City's intent to demolish (as opposed to enclosing, repairing or cleaning the property); the specific nature of the problems that led to the Fast Track designation; or what specific actions must be taken to prevent demolition. The exception is notice of the opportunity to file an objection; the letter and publication notices (but not the posted sign) state that the recipient has "the right to object to the City taking this action by filing legal action in a court of competent jurisdiction." The head of the Fast Track program, Ron McDermott, testified that if his office receives calls asking how to prevent demolition, he tells them that they must board up the building and that they may attempt to rehabilitate the property if they wish. He does not mention the possibility of seeking a hearing, and if callers have questions about the procedure for filing an "objection," he refuses to answer, telling them that he cannot furnish legal advice. McDermott dep. at 31. *fn1"

 In the event that an owner or other interested person wishes to avoid demolition by boarding up or repairing the building, no guidance or assistance is forthcoming from the City. The City does not tell interested persons its standards for finding that a building is "secure," (i.e., boarded up), which require that the building be completely boarded up, without the smallest opening anywhere. The City does not identify any specific repairs that would be sufficient to remove the building from the Fast Track process--perhaps because, in the City's eyes, the condition of the building is almost irrelevant; what matters is whether it is vacant and open. The City has no formal procedures for recording information that a building is being worked on, for conducting checks on the building's progress, or for making an official finding that the work done is insufficient, and notifying owners or others that the demolition will proceed. Indeed, the City's informal procedures seem designed to frustrate attempts to avoid demolition. The evidence submitted by the parties shows that calls to the office are either not recorded or are not placed in the file for that building, so the City has no record of (a) the identity of a person concerned enough about the building to call; (b) how that person can be reached for future communications; (c) what work the person proposed to undertake; (d) what information was given to the person; or (e) any deadlines that may have been set or agreed to. Even written communications about Fast Track buildings--including letters stating an intent to rehabilitate, notices of new forwarding addresses for record owners, and copies of building permits for repairs--frequently do not find their way to the file or are discarded. It is difficult to imagine a system (we use the term loosely) less likely to permit interested persons to avoid demolition than the one shown by the evidence submitted this far.

 Once the initial notices have been issued, the City provides no further notice of its intent to demolish, even if the Fast Track program has received communications indicating efforts to repair or enclose a building. Instead, it simply inspects the property 35 to 40 days after the dates of notice, and okays the building for demolition if it is not completely boarded up. Once a building has been approved for demolition, its destruction appears to be virtually certain. Although the demolition contractors are supposed to abstain from demolition and contact the City if they discover recent improvements or work in progress at a building, McDermott testified that this occurs only a "relatively small percentage of the time." McDermott dep. at 119.

 The plaintiffs claim that the Ordinance--both as written and as applied via the Fast Track program--violates the Due Process clause of the Constitution. Their challenge to the Ordinance on its face includes arguments that its notice requirements and opportunity for a hearing are inadequate, and that certain key language is unconstitutionally vague. The plaintiffs also claim that the City's procedures for implementing the Ordinance are unconstitutional, in that they increase the risk of erroneous deprivations of property. In McKenzie I, we found that they had met the requirements for a preliminary injunction of the Fast Track demolition process. The City asks us to reconsider our prior ruling and vacate it, or in the alternative, stay the injunction pending appeal.

 The Motion to Reconsider

 In moving for reconsideration, the movant bears a heavy burden. The Seventh Circuit has ...


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