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MCKENZIE v. CITY OF CHICAGO

July 31, 1997

KEITH MCKENZIE, REV. DANIEL VINSON, JOHN and BEVERLY DEMARCO, as beneficiaries of MARQUETTE NATIONAL BANK A/T/U/T 3422, HONEYWOOD DEVELOPMENT CORP., ROBERT LEWIS, and WILBURN RICHARDS, 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 this case, the plaintiffs attack Illinois statute 65 ILCS 5/11-31-1(e) and a Chicago city ordinance enacting that statutory provision, § 13-9-010 (collectively, "the Ordinance"), which permit the demolition of certain residential buildings using summary procedures. Their complaint claims that the Ordinance, both as written and as applied, violates the Due Process clause of the Fourteenth Amendment, and seeks a declaration that the Ordinance is invalid. They also bring several claims arising under state law. The defendants' motion to dismiss the facial challenge to the Ordinance's constitutionality, and also the claims brought against the City under 42 U.S.C. § 1983, is presently before us.

 Relevant Facts

 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). 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" (such as "roof needs repairing" or "building open and accessible") or list the specific actions that must be taken in order to avoid further municipal action (such as "repair roof" or "board up all openings in building"). 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 Ordinance provides that "[a] person objecting to the proposed actions of the corporate authorities may file his or her objection in an appropriate form in a court of competent jurisdiction." 65 ILCS 5/11-31-1(e); see also Chi. Mun. Code § 13-9-010. Since a municipality may commence demolition 30 days after issuing its three forms of notice, anyone wishing to file an objection apparently must do so within 30 days, although the Ordinance does not say this explicitly. There is no definition or explanation of what is meant by an "objection," what an "appropriate form" for it would be, or what a "court of competent jurisdiction" is, although the Ordinance later states that if "any person has sought a hearing under this subsection before a court and has served a copy of the complaint" on the mayor, the municipality may not proceed with demolition until the court issues an order authorizing it. Id. The Ordinance does not require that any of the three forms of notice inform the reader that he or she may seek a hearing by filing such an "objection," or that doing so will prevent any further action until a judicial determination has been reached.

 The City carries out the Ordinance through its Fast Track Demolition program. The plaintiffs charge that the City's procedures for administering the program are faulty, and have led to the erroneous and/or unforewarned demolition of several of their properties.

 Legal Standards

 In considering a motion to dismiss the court views all facts alleged in the complaint, as well as any inferences reasonably drawn therefrom, in the light most favorable to the plaintiff. Mosley v. Klincar, 947 F.2d 1338, 1339 (7th Cir. 1991). A motion to dismiss will be denied unless it appears beyond doubt that the plaintiff can prove no facts that would entitle him or her to relief. Conley v. Gibson, 355 U.S. 41, 45, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). *fn1"

 Analysis

 Challenge to the Ordinance on its Face

 The City first asks that the plaintiffs' facial challenge to the Ordinance be dismissed because, as a matter of law, the Ordinance is constitutional as written. The test that a facial challenge must meet is demanding. "A facial challenge to a legislative Act is . . . the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid." United States v. Salerno, 481 U.S. 739, 745, 95 L. Ed. 2d 697, 107 S. Ct. 2095 (1987). When a statute is reasonably capable of a construction compatible with the Constitution, the courts are required to so construe it. St. Martin Evangelical Lutheran Church v. South Dakota, 451 U.S. 772, 780, 68 L. Ed. 2d 612, 101 S. Ct. 2142 (1981). Applying this high standard to the case at bar requires us to construe the statute in a manner that enables it to avoid constitutional defects, and we accordingly dismiss the plaintiffs' facial challenges.

 As we have discussed in our earlier opinions in this case, the essence of due process is notice of a deprivation and an opportunity to be heard in order to prevent, if possible, a wrongful deprivation. "'Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified.'" Fuentes v. Shevin, 407 U.S. 67, 80, 32 L. Ed. 2d 556, 92 S. Ct. 1983 (1972) (quoting Baldwin v. Hale, 68 U.S. 223, 1 Wall. 223, 233, 17 L. Ed. 531 (1863)). The notice and opportunity for a hearing "must be ...


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