Appeal from the Circuit Court of McHenry County. No. 07-MC-2 Honorable Michael J. Sullivan, Judge, Presiding.
The opinion of the court was delivered by: Justice Birkett
JUSTICE BIRKETT delivered the judgment of the court, with opinion. Justices McLaren and Zenoff concurred in the judgment and opinion.
¶ 1 This case involves the continuing efforts of plaintiff, the Village of Ringwood, to remediate the public hazard it claims is posed by a fire-damaged apartment building owned by defendant, Deborah Foster. The fire occurred in October 2006, and in January 2007 the trial court authorized plaintiff to demolish the building. In Village of Ringwood v. Foster, 405 Ill. App. 3d 61, 85-86 (2010) (Foster I), we vacated the demolition order because the record suggested, and plaintiff did not dispute, that there was a lien on the property and that plaintiff failed to provide the lienholder the requisite statutory notice of plaintiff's intent to seek a demolition order. On remand, plaintiff issued a notice to First National Bank of McHenry (First National), the lienholder. Over defendant's objection that the notice was deficient, the trial court reissued the demolition order. Defendant appeals, and we affirm.
¶ 4 Plaintiff's July 2007 complaint seeking authorization to demolish the building was brought pursuant to section 11-31-1(a) of the Illinois Municipal Code (Code) (65 ILCS 5/11-31-1(a) (West 2006)). The complaint named defendant alone. Section 11-31-1(a) provides in relevant part:
"(a) The corporate authorities of each municipality may demolish, repair, or enclose or cause the demolition, repair, or enclosure of dangerous and unsafe buildings or uncompleted and abandoned buildings within the territory of the municipality and may remove or cause the removal of garbage, debris, and other hazardous, noxious, or unhealthy substances or materials from those buildings. ***
The corporate authorities shall apply to the circuit court of the county in which the building is located (i) for an order authorizing action to be taken with respect to a building if the owner or owners of the building, including the lien holders of record, after at least 15 days' written notice by mail so to do, have failed to put the building in a safe condition or to demolish it or (ii) for an order requiring the owner or owners of record to demolish, repair, or enclose the building or to remove garbage, debris, and other hazardous, noxious, or unhealthy substances or materials from the building. It is not a defense to the cause of action that the building is boarded up or otherwise enclosed, although the court may order the defendant to have the building boarded up or otherwise enclosed. Where, upon diligent search, the identity or whereabouts of the owner or owners of the building, including the lien holders of record, is not ascertainable, notice mailed to the person or persons in whose name the real estate was last assessed is sufficient notice under this Section.
The hearing upon the application to the circuit court shall be expedited by the court and shall be given precedence over all other suits. Any person entitled to bring an action under subsection (b) shall have the right to intervene in an action brought under this Section." 65 ILCS 5/11-31-1(a) (West 2006).
¶ 5 The trial court conducted a bench trial, at which plaintiff had the burden to prove that the building was (1) "dangerous and unsafe" (65 ILCS 5/11-31-1(a) (West 2006)) and (2) "beyond reasonable repair" (Village of Lake Villa v. Stokovich, 211 Ill. 2d 106, 131 (2004) (citing City of Aurora v. Meyer, 38 Ill. 2d 131, 137 (1967)). The court heard testimony from several witnesses on the degree of damage to the building. At one point, plaintiff sought to introduce a November 15, 2006, letter it sent to defendant. In the letter, plaintiff directed defendant "to demolish [the building] *** on or before May 15, 2007." Defendant objected to the letter on hearsay grounds. The court admitted the letter "for the limited purpose of showing notice," not to prove the truth of the matters stated in the letter.
¶ 6 In closing argument, defendant asserted, inter alia, that plaintiff "failed to prove *** that the notice which [it] sent [to her] [was] compliant with the law, that [it] gave [her] a reasonable opportunity to repair the building." Thus, defendant's complaint regarding notice was that she was not provided an opportunity to make repairs. She did not claim that some other party, such as a lienholder, did not receive notice of the demolition suit. (We mention this omission now because it will figure in our analysis below.)
¶ 7 In a written opinion, the trial court rejected defendant's arguments and determined that plaintiff met its two-pronged burden of proof under City of Aurora and Stokovich. In particular, the court held that plaintiff's November 2006 letter satisfied the notice provision of section 11-31-1(a).
¶ 8 Defendant filed a posttrial motion, arguing in part that, since the trial court did not admit the "contents" of the November 2006 letter, it was "impossible for [plaintiff] to prove that it complied with [section 11-31-1(a)]." Defendant again did not specifically claim that notice was lacking with respect to some other party. The record shows that the motion was heard but contains no transcript or other account of the hearing.
¶ 9 The trial court denied the posttrial motion and issued an order authorizing plaintiff to demolish the building. The court stayed the judgment pending appeal.
¶ 10 On appeal in Foster I, defendant made three main arguments. First, she contended that plaintiff failed to prove that the building was "dangerous and unsafe" under section 11-31-1(a), as there was no evidence that the building threatened "public safety," i.e., the community at large and not just those who entered onto the premises. Applying principles of statutory construction, we concluded that "a structure may be deemed 'dangerous and unsafe' under section 11-31-1 even if the danger is confined to those connected to the property." Foster I, 405 Ill. App. 3d at 74. As defendant had "agree[d] *** that the damage to the building rendered it uninhabitable," we held that plaintiff sustained its burden to prove that the building was "dangerous and unsafe." Id.
¶ 11 Second, defendant disputed plaintiff's proof that the building was damaged beyond reasonable repair. In making its determination under this second prong of the City of Aurora/Stokovich analysis, the trial court borrowed from plaintiff's zoning ordinance, under which a nonconforming building that was damaged to the extent of more than 50% of its replacement cost could not be rebuilt or reoccupied for any nonconforming use (the 50% ordinance).*fn1 The trial court held that repair was unreasonable because the 50% ordinance prohibited it. Defendant argued to us that the trial court's use of the 50% ordinance as a standard for the reasonableness of repair was erroneous, but we disagreed. We acknowledged that the ordinance employed a different standard for calculating the reasonableness of repair than the standard the supreme court set forth in Stokovich. The supreme court stated: "City of Aurora requires that the second finding-that the building is beyond reasonable repair-must be based on a comparison of the cost of repair with the value of the building." Stokovich, 211 Ill. 2d at 131. We noted in Foster I that, while the 50% ordinance "compares all of the damage to a building with the replacement cost of the building, *** the Stokovich test compares the cost of repairing the dangerous conditions with the value of the building." Foster I, 405 Ill. App. 3d at 79. We did not find the "discrepancy" decisive, however. We reasoned that Stokovich did not "preclud[e] a finding that repairs may be unreasonable for some reason other than cost. Rather, we interpret the supreme court's statement as dictating the means for the normal, cost-based reasons presented in [Stokovich and City of Aurora] for why a repair might not be reasonable. The repair in this case is unreasonable because it is not allowed under plaintiff's ordinance, even if its cost might otherwise make it reasonable." Id. at 79-80. In Stokovich and City of Aurora, "repair was unreasonable due to cost," but "[h]ere, repair is unreasonable based on another factor: the ordinance barred such repair." Id. at 80 n.6.
¶ 12 Defendant's third main contention was that plaintiff failed to comply with the 15-day notice provision of section 11-31-1(a). That section allows the corporate authorities of a municipality to "apply to the circuit court *** for an order authorizing action to be taken with respect to a building if the owner or owners of the building, including the lien holders of record, after at least 15 days' written notice by mail so to do, have failed to put the building in a safe condition or to demolish it."
65 ILCS 5/11-31-1(a) (West 2006). Defendant argued first that she herself did not receive proper notice. We held that the November 2006 letter from plaintiff was proper notice to defendant. Foster I, 405 Ill. App. 3d at 82. We rejected defendant's further contention that the letter was ineffective as notice because it did not inform her of the right to repair the building. We reasoned:
"[A]lthough the statute (and case law) literally says that notice of a right to repair is required (and, as explained in Stokovich, is an important reason the statute is constitutional (see Stokovich, 211 Ill. 2d at 130)), we cannot interpret that rule as extending to cases where, for reasons extrinsic to section 11-31-1 itself, there is in fact no right to repair. It would be strange indeed to interpret the statute as requiring a municipality to tell a homeowner falsely that she has a right to repair before the municipality pursues a demolition action, and we will not lend section 11-31-1 such a construction." Id. at 82-83. (We clarified in a footnote that we were not holding that "notice is unnecessary if it is later determined that there is no right to repair because repair is too costly and thus not reasonable under the test articulated in Stokovich." Id. at 82 n.10.)
¶ 13 Yet plaintiff did not, we found, demonstrate full compliance with the notice provision of section 11-31-1(a), as there was "no evidence that notice was given to any lienholders of record, as contemplated by section 11-31-1." Id. at 83. We noted that the trial testimony suggested that there was a mortgage on the property. Id. at 84. Defendant argued to us that (as quoted from her brief) "the notice requirements of [section] 11-31-1," including notice to lienholders, "must be followed before suit for demolition can be filed." "There is good reason," we explained, "the legislature would have acted to require notice to lienholders of an action to demolish a building." Id. at 84. "[A] lienholder *** unquestionably has an interest in the outcome of demolition proceedings, both because of its interest, as a lienholder, in the building's continued existence (so that the building may continue to secure the obligation), and because section 11-31-1 contemplates the subordination of all prior liens to a new lien in favor of the municipality for the cost of any demolition or repair conducted by the municipality." Id. at 85. We then stated:
"[E]ven if the notice provision of section 11-31-1(a) allows the filing of a demolition action without notice to owners and lienholders, it does require that the owners and lienholders receive notice *** prior to the trial court's entry of a demolition order." Id.
¶ 14 Because the record did not show that notice was provided to any lienholders before the demolition order was entered, and because plaintiff did not dispute that there was no such ...