Appeal from the Circuit Court of Lake County. No. 98--MR--75 Honorable John R. Goshgarian, Judge, Presiding.
The opinion of the court was delivered by: Justice Bowman
Defendants, Dorothy Stokovich, as trustee under a trust agreement dated September 16, 1992, and Nick Stokovich, appeal from the judgment of the circuit court of Lake County granting plaintiff, the Village of Lake Villa, judgment on counts I and III of its second amended complaint. Count I sought the demolition of a building in Lake Villa owned by defendants. Count III sought fines for violations of Title 8 of the Lake Villa Village Code (the Village Code) (Lake Villa Village Code §8--4--1 (eff. April 13, 1994)). The trial court found that the demolition order rendered moot count II, which sought alternative relief in the form of bringing the building into compliance with all current provisions of the Village Code.
On appeal defendants contend that (1) section 11--31--1 of the Illinois Municipal Code (65 ILCS 5/11-31--1 (West 1996)), pertaining to demolition by a municipality, is unconstitutional; (2) section 11-31--1 constitutes an invalid delegation of legislative power; (3) the trial court abused its discretion in excluding defendants' evidence regarding the current value of the building; (4) the trial court abused its discretion in admitting plaintiff's opinion testimony concerning the condition of the building; (5) the trial court's finding that the building was dangerous and unsafe requiring demolition under section 11--31--1 was against the manifest weight of the evidence; (6) the trial court erred in denying defendants a jury trial on count III of the second amended complaint; (7) the ordinance violations alleged in count III of the second amended complaint did not apply to vacant structures; and (8) the trial court's judgment on count III was so deficient as to require a remand.
The property in question is a building consisting of three stories and a basement that defendant Dorothy Stokovich and her husband had acquired in 1949 and used as a nursing home until 1977. A caretaker lived in the building from 1977 until sometime in the 1980s. In 1979 or 1980 Mrs. Stokovich sold the building to her son, defendant Nick Stokovich, for $100,000 and gave him authority to make all decisions regarding the building. Nick Stokovich lived in the building for approximately 12 years until 1992. At the time of trial the building was about 100 years old.
On September 25, 1997, a red card was posted on the building indicating that it was unsafe, abandoned, dilapidated, and animal infested. On October 3, 1997, the deputy director of the Lake County building and zoning department sent Dorothy Stokovich a letter advising her that the building was in violation of plaintiff's building code for the following reason: "unsafe abandoned structure must be brought up to the present building code or demolished." The letter informed her that, before any repair work could be done, the department would have to conduct an inspection of the building and the proper permits would have to be secured. If the subject property was to be demolished, the letter informed her, a demolition permit was required. The letter also advised Mrs. Stokovich to contact the department if she had any questions concerning the matter.
On October 17, 1997, Nick Stokovich wrote the deputy director, advising him that all future correspondence should be sent to him, as he was the owner of the building. Stokovich informed the deputy director that he was leaving town for a few weeks, that he had advised his attorney regarding the matter, and that he hoped the matter could be resolved upon his return or beforehand through his attorney.
On January 7, 1998, plaintiff's attorney wrote defendants stating that the building was in a dangerous and unsafe condition and had to be demolished within 30 days. On February 3, 1998, defendants' attorney wrote the plaintiff's attorney informing the latter that he had left a voice mail message on January 23 requesting reports plaintiff had considered concerning the condition of the subject property. Defendants' attorney asked for additional time to review the requested documents with defendants and to respond on their behalf. In response, on February 18, 1998, plaintiff's attorney filed a single-count complaint for demolition and sent a copy of the complaint, which included an inspector's report, to defendants. The inspector's report indicated that the building was unsafe, abandoned, dilapidated, and animal infested and that a red card had been posted.
Defendants filed a motion to dismiss challenging the constitutionality of section 11-31--1 of the Illinois Municipal Code (65 ILCS 5/11--31--1 (West 1996)) on which the demolition action was based. Following the denial of the motion, defendants filed another motion to dismiss, alleging that plaintiff's complaint failed to set forth specific facts to support plaintiff's conclusion that the building was unsafe. The trial court granted the motion.
Subsequently, plaintiff filed a three-count amended complaint on August 20, 1998. Defendants moved to dismiss count III, pertaining to fines for ordinance violations, based on improper notice. The trial court granted the motion, and plaintiff filed a second amended complaint containing the same three counts but adding notice allegations.
Inspections of the property were conducted by plaintiff on June 4, 1998, and again on May 4, 2000.
At trial Jennifer Schaefer, a sanitarian with the Lake County health department, testified that on June 4, 1998, she inspected the building in question. She observed mice droppings throughout the building as well as two areas with larger feces. She did not see any evidence of animal harborage. Schaefer also walked around the exterior of the building, observing a lot of holes and openings. Schaefer stated that, because mice were known to carry diseases, she considered the amount of mice droppings to be a danger to humans. As a result, Schaefer issued a notice of violation of the Lake County health ordinance to Dorothy Stokovich, directing her to remove all feces from the property. Schaefer did not receive any communication from defendants indicating that the problem had been resolved or that any action had been taken.
On July 31, 1998, Schaefer returned to the building and from the sidewalk observed that there were still several gaps around the building where vermin could enter it. Schaefer sent a notice of violation to Dorothy Stokovich directing her to protect the building from the entrance of vermin. Schaefer never received any response to the notice.
Alice Brownlee, plaintiff's clerk, testified that she was the official records custodian for plaintiff and that the water bill ledger for the building indicated that plaintiff had not provided any water to the building since March 31, 1989.
August Hibel, chief building inspector for the Lake County building department, testified that on June 4, 1998, he spent approximately 1½ to 2 hours inspecting the interior and exterior of the building to determine its existing condition and to ascertain any violations of the Village Code. Hibel was accompanied by six other inspectors. Photographs taken of the subject property during the inspection were admitted into evidence, as were photos taken during a subsequent inspection on May 4, 2000.
Using the photographs, Hibel described the condition of the building at the time of both inspections. Hibel recounted that there was extensive water damage throughout the building, broken windows that had been covered with plywood or cardboard, holes in the roof, some rotten rafters, mold and mildew on some walls, and exposed electrical wiring hanging on the ceiling in some of the bedrooms. Additionally, portions of the siding of the overhang were missing; the plaster was falling off the walls in some rooms; some of the gutters were peeling away from the roof; the porch was sagging; and the fire escape slide on the side of the structure was badly deteriorated. Also, there was no central heating system and no electrical power.
Hibel stated that he was familiar with the 1993 Building Officials and Code Administrators Property Maintenance Code (BOCA Code) and that the building did not comply with many of its requirements. In particular, the building did not meet the requirements for setbacks, guardrails, exterior walls, roof structure, overhang extensions, fire escapes, chimneys, window and door frames, guards for basement windows, interior stairway railings and widths, plumbing fixtures, heating systems, and exits. Hibel opined that, given the exterior condition of the building, it would be unsafe for pedestrians to walk on the sidewalk near the building because of the possibility of pieces falling off the roof or the overhang. Also, because of the lack of a heating system, electrical system, and plumbing system, no one could safely live in the building.
Hibel opined that the building was not being maintained in a safe, sanitary, or secure condition; that it was a blight on the surrounding properties; and that it was not habitable. In Hibel's opinion a complete remodeling of both the inside and outside of the building would be necessary to make the building habitable as a single-family residence. In Hibel's opinion the amount of money it would take to repair the damage and deterioration to the building would exceed 50% of its market value. Hibel did not have an opinion as to the market value of the building.
On cross-examination, Hibel acknowledged that most of the wood in the building was "resawed" lumber and that it had greater elasticity and "sheer strength" than modern-day lumber. Hibel also acknowledged that the porch and the addition to the building, which he had noted were sagging, had their own foundations and did not share the building's foundation. He did not notice any significant sagging of the building.
Hibel was uncertain whether the sidewalk along the building was public or part of the building. He recalled that one of the other inspectors told him that the building sat on the lot line. He did not have a survey of the building nor did he ever consult a survey to determine where the lot lines were located and what the setbacks would be for the building.
As to the defects in the two chimneys of the house, Hibel made his observation regarding open mortar joints and the breaking off of bricks from outside the house at ground level. Hibel did not notice any bricks or debris from the chimneys on the ground. As to other defects he had mentioned, Hibel acknowledged that there were only two areas where the gutters were actually hanging loose off the building; that the exposed electrical wirings in some rooms did not present a safety problem since there was no electricity in the building; that the interior and exterior doors did not meet BOCA Code requirements because they stuck, had hardware missing, or were themselves missing; that the guardrails were not in compliance with the BOCA Code because the openings between the slats were wider than the BOCA Code allowed; that none of the overhang on the front side of the structure, which faced the public sidewalk, hung over the sidewalk; ...