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MCCULLOUGH v. CITY OF CHICAGO

July 31, 1997

WALTER P. McCULLOUGH, COTTRELL McCULLOUGH, YVONNE COSEY, and MARVIN J. COSEY, Plaintiffs,
v.
THE CITY OF CHICAGO, JOE DECICCO, Individually and d/b/a PT TRUCKING, CHERRYL T. THOMAS, CHRISTOPHER J. KOZICKI, and RONALD McDERMOTT in their capacities as officials of the City of Chicago Department of Buildings, Defendants.



The opinion of the court was delivered by: CASTILLO

 The plaintiffs in this case claim that the various defendants were each responsible in part for the unwarranted demolition of one of their buildings and damage to another through the City's Fast Track Demolition program. *fn1" Count I of their second amended complaint is a claim under 42 U.S.C. § 1983 that the destruction of the house at 2902 West Fulton Street violated the procedural due process aspect of the Fourteenth Amendment. Count II is a similar claim for damage to 2900 West Fulton. Count III is a state law claim. Count IV seeks a declaration that the statute and city ordinance authorizing the Fast Track Demolition program are unconstitutional as written and applied. Count V alleges that the City has retaliated against the plaintiffs and seeks a restraining order preventing the prosecution of various housing-related actions currently pending in state court. The defendants have moved to dismiss all counts.

 Legal Standards

 A motion to dismiss tests the sufficiency of the complaint, not the merits of the suit. Triad Assocs., Inc. v. Chicago Hous. Auth., 892 F.2d 583, 586 (7th Cir. 1989). When 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. Doherty v. City of Chicago, 75 F.3d 318, 322 (7th Cir. 1996). A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). In short, the only question is "whether relief is possible under any set of facts that could be established consistent with the allegations." Bartholet v. Reishauer A.G. (Zurich), 953 F.2d 1073, 1078 (7th Cir. 1992) (citations omitted).

 Relevant Facts

 Walter and Cottrell McCullough own property located at 2900 West Fulton and 2902 West Fulton in Chicago. Each property had a multi-family residential building on it. One of the tenants in the 2900 building had contracted to purchase that building. As of May, 1996, the building at 2902 West Fulton was vacant, but the McCulloughs were in the process of negotiating with Marvin and Yvonne Cosey, who wished to buy the property. The McCulloughs and Coseys were rehabilitating the building together. During the McCulloughs ownership of the building, it had never been cited for building code violations.

 One section of an Illinois statute, 65 ILCS 5/11-31-1(e), provides that a municipality may use summary procedures to demolish, repair or enclose any building determined to be "open and vacant and an immediate and continuing hazard to the community." The procedures require that certain interested parties be notified in three ways--by a sign posted on the property, by a letter, and by publication of a notice in a newspaper--that unless steps are taken within 30 days to demolish, repair, or enclose the building, the City may do so. The property owner is then liable for the cost of the City's actions. The statute also 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." The statute has been enacted as part of the Chicago Municipal Code, at § 13-9-010, and is implemented in Chicago through the Fast Track Demolition program in the Department of Buildings. For the sake of convenience, both 65 ILCS 5/11-31-1(e) and Chicago Municipal Code § 13-9-010 are referred to herein as "the Ordinance."

 Some time after May 10, 1996, the McCulloughs received a letter from the Chicago Building Department, informing them that the property at 2902 West Fulton had been found to be "vacant and open and . . . an immediate and continuing hazard to the surrounding community." Am. Compl. Ex. E. Walter McCullough visited the East Track offices on May 17, 1996 and spoke to defendant McDermott, showing him photographs of 2902 West Fulton that showed that the building had been boarded up. McDermott reviewed and dated the photographs. During the next two months, 2902 West Fulton was broken into and vandalized more than once. Each time, the plaintiffs repaired and re-boarded the building after learning of the vandalism.

 On June 15, 1996, the Coseys made the first payment to the McCulloughs for the purchase of 2902 West Fulton, and on July 2, 1996, they signed an agreement to purchase the property. Between July 2 and August 9, 1996, the Coseys were at the building almost continuously, repairing it and preparing it for occupancy of the first floor, which had already been rented out.

 On August 9, 1996, defendant DeCicco, acting under the direction of defendants Thomas, Kozicki, and McDermott, and on behalf of the City, demolished the building at 2902 West Fulton. Marvin Cosey was on the property with a work crew, painting the first floor apartment, at the time. During the demolition, the building next door at 2900 West Fulton was damaged. The McCulloughs' lawyer later learned that the City had inspected 2902 West Fulton on July 18, 1996, and found that it was no longer boarded up. The McCulloughs had had no further indication that the City intended to demolish after Walter McCullough visited the Fast Track offices in May and spoke with Ron McDermott.

 Since the demolition, the City has cited 2900 West Fulton for building violations that are the result of the damage done by the demolition contractor. In materials related to the citation, an inspector states that the building "appears to be vacant," although it is in fact occupied by tenants. The McCulloughs state that they fear that the building 2900 West Fulton is in danger of demolition through the Fast Track program. In addition to citations for 2900 West Fulton, the McCulloughs have also received recent building code citations for other buildings they own at 2809 West Fulton and 2809-11 West Washington in Chicago. The McCulloughs claim that these citations are baseless and were issued in retaliation for their suit against the City.

 Analysis

 The City defendants have moved to dismiss all of the federal causes of action--Counts I, II, IV and V--for failure to state a claim, and ask that the state law claims in Count III be dismissed as well for lack of jurisdiction. ...


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