No. 2--00--0943

_________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT	

__________________________________________________________________

THE VILLAGE OF LAKE VILLA,		)	Appeal from the Circuit Court

						)	of Lake County.

	Plaintiff-Appellee,		)

						)

v.						)	No. 98--MR--75

						)

DOROTHY STOKOVICH, as Trustee,	)

under Trust Agreement dated		)

September 16, 1992, and			)

NICK STOKOVICH,				)	Honorable

						)	John R. Goshgarian,

	Defendants-Appellants.		)	Judge, Presiding.

_________________________________________________________________

	JUSTICE BOWMAN delivered the opinion of the court:

	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 Hhealth

Ddepartment, 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 11⁄2 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 cCode allowed; that none of the overhang on the front

side of the structure, which faced the public sidewalk, hung over the sidewalk;

and that, although he was uncertain whether the sidewalk running along the side

of the house where a portion of the overhang went over the sidewalk was public,

that sidewalk extended only to the back portion of the building and no farther. 

	It was Hibel's opinion that, regardless of whether the building was

inhabited or uninhabited, it still had to be in compliance with the BOCA Code. 

	Gary Thompson, plumbing inspector for the Lake County building department,

testified that he inspected the plumbing system at the building on June 4, 1998. 

Thompson stated that the plumbing system was not in accordance with current

plumbing code provisions and that a whole new plumbing system would need to be

installed to bring it into compliance.  A new waste and vents system would need

to be installed as well as all new water lines and supplies.  Thompson stated

that parts of the plumbing system dated back to the 1930s or early 1940s.  In

Thompson's opinion, it would not be safe to try to salvage the existing system.

	Thompson also testified that, in its present state, the plumbing system

could pose a danger of contamination to the village drinking water system if

there was a tie-in between the village system and the building's system because

of the bacteria, mold, and mildew that would have grown into the water lines. 

Thompson acknowledged that he did not determine whether the building was tied

into the village system.  

	Thompson said that, because some of the waste lines were open and because

there was no water to keep the traps full, methane gas could possibly enter the

building from the sewer line.  According to Thompson, methane gas has no odor and

if it becomes concentrated in one room it would be dangerous.  Thompson admitted

that he performed no tests to determine if methane gas was present.  	William

Wiezgac, heating inspector for the Lake County building department, who was also

present at the June 4, 1998, inspection of the building, testified that the

building had not been vented properly, that most of the radiators had been

removed,  and that the old boiler system was one that probably had been converted

to an oil-burning system and then to natural gas.  Wiezgac stated that he would

not recommend trying to retrofit the old heating system instead of installing a

new system because it would be more costly to operate the old system.

	When asked if he felt it was safe to be in the building, given its existing

conditions, Wiezgac replied that he felt safe walking through the building but

that it was not safe to live in it at the present time.  

	Larry Wells, structural inspector for the Lake County building department,

testified that he inspected the building on May 4, 2000.  At that time the

building was in a state of disrepair.  In a number of areas the roof decking was

deteriorated  and rotted and there were some holes in the roof.  Also, some of

the structural members of the porch were rotted or decayed.  The paint on the

exterior of the building was peeling in several areas.  	

	William Effinger, village trustee, testified that he was very familiar with

the building, as his parents lived in the same block since 1950.  Effinger

described the building as "dilapidated" because a lot of the roofing was off,

holes were in the roof, a lot of the windows were broken, fascia and soffits were

falling off the flat roof area, and weeds were growing up in the soffits.  A

couple of years prior to trial he recalled observing raccoons going in and out

of the building.

	Effinger stated that he was the individual who prepared the September 25,

1997, violation notice for the building and posted the red card on it.  Since

that time, the property had gotten worse.  Effinger acknowledged that he observed

during the May 2000 inspection that some work had been done to the building. 

Some of the plaster that had fallen out had been patched, some sheets of drywall

had been put over holes, and a new board had been installed in a piece of fascia

outside.  Effinger also acknowledged that, during the past few years, he had

observed individuals cutting the grass and removing brush piles. 

	Defendant Nick Stokovich, testifying as an adverse witness, stated that,

after his mother gave him the October 3, 1997, letter from the deputy director

of the Lake County building and zoning department, he wrote the deputy director

explaining that he was going to be out of town and asking him to contact

Stokovich's attorney.  Stokovich said that he did not understand the substance

of the letter.  After receiving the letter, he did not apply for or obtain a

demolition or building permit for the building. 

	Stokovich acknowledged receiving the January 7, 1998, letter from

plaintiff's attorney telling him that the building must he demolished.  Stokovich did not apply for and obtain a demolition permit.  Nor did he make improvements

to the building based on letters sent to him subsequent to the January 7 order. 

	Stokovich testified that, after he moved out of the building in 1992, he

would visit it at least once a week.  Sometimes he would visit just to check the

building.  At other times he would work on the inside of the building.  Stokovich

also checked the exterior of the building during his visits.  According to him,

he had never noticed any roofing, fascia, soffits, or siding material on the

ground.  Stokovich also stated that the sidewalk running along the side of the

house is private property and that, during his visits, he had never seen

pedestrians on the sidewalk.

	Stokovich testified that, after receiving the demolition demand in the

January 7, 1998, letter, he spoke with the village mayor and some trustees,

including Bill Effinger, regarding the building.  Stokovich expressed his desire

to repair the building but indicated that, as long as there was a demolition

demand, it made no sense to repair it.

	Subsequent letters sent after plaintiff had brought suit sought repairs. 

Stokovich testified as to repairs he had done to the building subsequent to the

January 7, 1998, letter, including repairs to the interior of the building as

well as to the roof.  Stokovich recalled that, when both he and a maintenance

worker climbed up the escape slide, they did not notice any instability. 

Stokovich also testified that, during the June 1998 inspection, for which he was

present, Jennifer Schaefer pointed out some mice droppings in a corner. 

Stokovich denied that she pointed out, nor did he observe, any larger feces. 

Stokovich had never seen raccoons in the building.  

	Stokovich stated that he had tried to keep the building secure over the

past five years through locks and by boarding up some doors and windows. 

Stokovich was unaware of any break-ins at the building.

	Stokovich considered the January 7, 1998, letter from plaintiff's attorney

to be a demolition order.  He acknowledged that he had never received a court

order.  Stokovich denied ever seeing the November 17, 1998, letter from

plaintiff's attorney or the December 11, 1998, letter, which attached the

November 17 letter to it, indicating the repairs defendant needed to make if he

chose not to demolish the building.  Plaintiff entered into evidence envelopes allegedly containing these letters and sent by certified mail that had been

returned "unclaimed."  Stokovich acknowledged that he had received copies of the

letters from his attorney but that he did not apply for any building permit.

	The testimony of Ernest Rogalla, a structural engineer testifying on behalf

of defendants, was limited to the content of the report he prepared following his

inspection of the building because he had inadvertently come into the courtroom

during another witness's testimony.  Rogalla stated that he specialized in

restoration of old structures and in collapses and construction problems of

buildings.  Rogalla said that his purpose in examining such structures was to

determine their structural integrity, i.e., whether the structures were safe and whether they could be restored or repaired.  In so doing, he performed tests.  

	On May 26, 1999, Rogalla spent approximately six hours inspecting the

building.  Rogalla examined the exterior first and then the interior.  He

observed no problems with the foundation surrounding the main building and porch

area.  His examination of the foundation while in the basement of the building

revealed that the masonry walls were uncracked and undamaged.  One area of the

concrete portion of the basement had some surface damage, but the concrete below

it was sound.  

	Rogalla recalled that his examination of the roof framing and the attic

area revealed no defects or structural damage.  Rogalla noticed some stains on

the third-story walls from water leaking through the roof.  There was some floor

damage on the third-story floors.  Rogalla discovered by cutting into areas where

plaintiff had found the floors were uneven that the unevenness was related to 

the tiles on the floor and that the plywood underneath was in excellent shape. 

Rogalla stated that the entire roofing, i.e., shingles and waterproofing, needed to be repaired.  

	On the second-story level Rogalla found that about 500 square feet of the

ceiling rafters needed repairing.  On the first floor some of the ceiling rafters

were soft due to moisture damage.  According to Rogalla's report, several floor

boards of the porch were soft and water damaged and should be repaired.  

	Rogalla also examined and tested more than half of the windows.  Those

windows operated fine.  A few windows had cracks, but no whole pieces of glass

were missing.  Rogalla was uncertain as to whether any windows were covered with plywood or cardboard.  Rogalla also examined the stairwells throughout the

building which appeared sound and undamaged except for one basement stair step

that teetered when walked upon.

	On cross-examination, Rogalla acknowledged that he was unaware that the

building did not meet the setback requirements for the zoning district in which

it is located or that the maximum height limitation for the zoning district was

less than the height of the building so that removal of the third floor might be

necessary to make the structure conform.  Counsel for defendants objected to

questions regarding these factors, stating that there had been no testimony or

other evidence presented regarding these matters.  The objections were overruled. 

Rogalla further testified that in his experience there was no reason, by virtue

of "grandfathering," that any structural modifications were required for a 100-

year-old building such as the  one in question.

	According to Rogalla, most of the building was undamaged and repair of it

appeared cheaper than tearing it down and rebuilding it.  In making his

recommendation, Rogalla did not take into account the cost of installing plumbing

or electrical and heating systems because he was only concerned with structural

matters.

	William Krueger testified that, during his 10 years of experience as a

full-time contractor, he had done remodeling and "rehab" work including six to

eight complete renovations of residences.  Krueger stated that he had been

present on June 4, 1998, when the county inspectors had made their inspection of

the building and that he had gone through the entire building.  He also rewalked

the whole building in May or June 1999 to prepare an estimate for converting it

into a 3-bedroom, 11⁄2-bath, single-family residence.

	Krueger described the procedure he generally followed in making an

estimate.  For the building in question, he first looked at the exterior of the

entire structure, then went up into the attic and worked his way downward,

looking at each room and walking up and down the hallway to observe what could

be salvaged and what needed removing.  He also looked at the mechanical equipment

in the basement such as the electrical system.  Krueger considered the building

safe to be in, as it was "very sound."

	Krueger testified in detail as to the work to be done throughout the

building to convert it into a single-family residence.  Krueger estimated the

total cost to be approximately $64,000, but acknowledged that it could be as high

as $75,000, especially if Nick Stokovich was unable to perform certain work

himself.  When asked if in making his estimate he had considered that the

building exceeded maximum height limitations, that the third floor might have to

be removed, and that the foundation might have to be pushed back to satisfy

setback requirements, Krueger replied negatively, stating that he assumed the

building had been "grandfathered in."  

	Desko Nokitovic, a realtor with knowledge of property values in Lake Villa,

testified that he was familiar with the building, as he had been personally

interested in purchasing it in 1998.  Nokitovic recalled that he had been through

the entire building a few times, the last time late in 1998.  Nokitovic had also

taken an interested client through the building in 1999.  

	Pursuant to plaintiff's objection, Nokitovic was not allowed to testify

regarding the "asking price" for the building in 1999.  Also, his opinion

regarding the building's current value was excluded on objection.  Subsequently,

defendants made an offer of proof that Nokitovic's opinion would have been that

the building's market value in its present condition is $150,000 to $160,000 and

that, if it were renovated into a 3-bedroom, 11⁄2-bath home, the market value would

be $230,000 to $240,000.

	Defendant Nicholas Stokovich testified regarding his inspection of the

exterior and interior of the building after a heavy snowfall in January 1999 and

a severe hailstorm in May 2000.  His inspections revealed no problems with the

building, e.g., no roofing materials, no siding, and no gutters had fallen off the building.  

	Stokovich stated that he possessed a real estate salesperson's license and

had personally bought and sold both residential and commercial property in Lake

County.  He had personally renovated some of these properties.  Stokovich said

that he was familiar with real estate values in Lake Villa.  His opinion

regarding the market value of the building was excluded on objection, as was his

testimony regarding any offers he had received to purchase it.  Defendants then made an offer of proof regarding purchase offers Stokovich had received in 1997

and 1998 in the amount of $140,000 and $150,000, respectively.

	At the conclusion of the trial the court determined, as evidenced by its

comments, that the building was unsafe.  In reaching its determination the court

specifically mentioned Janet Schaefer's testimony regarding the possibility of

communicable disease from mice droppings, Gary Thompson's testimony regarding the

possibilities of methane gas in the building and of contamination of the

Village's water system by defendant's water system, and Rogalla's testimony

regarding the 500 square feet of ceiling rafters that needed replacement on the

second story.  Based on testimony regarding the price Nick Stokovich agreed to

pay his mother for the building in 1979 or 1980, the trial court found that the

value of the building was $100,000.  Additionally, the court found that the

renovation of the building into a single-family residence amounted to

approximately $75,000, as testified to by defendants' witness Krueger, and that

this renovation constituted "substantial reconstruction" of the building.  The

court entered an order of demolition.  This appeal ensued.

	Defendants first contend that section 11--31--1 of the Illinois Municipal

Code (Code) pertaining to demolitions is unconstitutional because it does not

allow a property owner the right to repair his property.  Defendant maintains

that not affording a property owner the option to repair constitutes an unlawful

taking without due process and without just compensation in violation of the

fifth and fourteenth amendments to the United States Constitution (U.S. Const.,

amends. V, XIV) and sections 2 and 15 of the Bill of Rights of the Illinois

Constitution (Ill. Const. 1970, art. I, §§2, 15).  We review the

constitutionality  of a statute de novo.   Miller v. Rosenberg, 196 Ill. 2d 50, 57 (2001).  

	Plaintiff asserts that defendants' constitutional arguments are barred by

defendants' failure to comply with Supreme Court Rule 19 (134 Ill. 2d R. 19),

which requires that notice be served upon the Attorney General in any cause in

which the constitutionality of a statute affecting the public interest is raised. 

However, defendants filed in this court a motion for leave to serve notice to the

Illinois Attorney General and we allowed that motion.  Consequently, defendant's

constitutional arguments are not barred.

	The relevant portions of section 11-31--1 of the Code provide:

	"(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.  In any county having

adopted by referendum or otherwise a county health department as provided

by Division 5--25 of the Counties Code or its predecessor, the county

board of that county may exercise those powers with regard to dangerous

and unsafe buildings or uncompleted and abandoned buildings within the

territory of any city, village, or incorporated town having less than

50,000 population.

	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."  65 ILCS 5/11--31--1 (West 1996).

	In City of Aurora v. Meyer, 38 Ill. 2d 131 (1967) our supreme court was faced with the same constitutional challenges to section 11--31--1 that

defendants raise here.  In City of Aurora the supreme court construed the statute as meaning that, if the specific defects that render a building dangerous and

unsafe "may readily be remedied by repair, demolition should not be ordered

without giving the owners a reasonable opportunity to make the repairs."  City of Aurora, 38 Ill. 2d at 137.  The supreme court declined, however, to express an opinion regarding whether the statute, as so construed, violated the constitutional provisions raised by the defendant, instead deciding that it could

resolve the case without addressing the constitutional issues. 

	In our previous Supreme Court Rule 23 (166 Ill. 2d R. 23) order (Village of Lake Villa v. Stokovich, No. 2--00--0943 (2001) (unpublished order under Supreme Court Rule 23)), we also declined to address defendants' constitutional

challenges based on our finding that defendants had the opportunity to choose

whether to repair or demolish their building prior to plaintiff's demand for

demolition and the trial court's subsequent demolition order.  On February 28,

2002, our supreme court in the exercise of its supervisory authority directed us

to vacate our affirmance of the judgment of the circuit court of Lake County

ordering demolition and to address defendants' claim that section 11--31--1 is

unconstitutional.  

	Our research has revealed no Illinois authority that has ruled upon the

constitutional challenges to section 11--31--1 that defendants raise.  Defendants

have directed us to other jurisdictions that have determined that a property

owner has a constitutional right to choose repair or demolition irrespective of

the cost of repair.  We have found these cases instructive in reaching our

decision.

	Defendants argue that section 11--31--1 is unconstitutional because it

fails to allow a property owner a reasonable time within which to repair his

property after the receipt of a demolition notice and no opportunity whatsoever

to repair after the constitutionally mandated judicial hearing has been held and

a determination has been made that the property is unsafe and dangerous. 

Defendants assert that ordering demolition without giving an owner a reasonable

time in which to repair his property and without considering the cost constitutes

an unlawful taking or a due process violation.  

	Ordinarily, courts will employ a relaxed scrutiny of statutes, looking only

to see whether the statute bears a reasonable relationship to a legitimate state

interest.  Tully v. Edgar, 171 Ill. 2d 297, 304 (1996).  However, in cases where the right infringed upon is among those considered a "fundamental" constitutional

right, such as a property right, courts subject the statute to "strict scrutiny." 

Tully, 171 Ill. 2d at 304.  Under the strict scrutiny standard, the means employed by the legislature must be "necessary" to a "compelling state interest," and the statute must be narrowly tailored thereto, i.e., the legislature must use the least restrictive means consistent with the attainment of its goal.  Tully, 171 Ill. 2d at 304-05.

	Illinois courts have long recognized that the legislative policy behind

section 11--31--1 is to give municipalities the power to protect their citizens

from dangerous and unsafe buildings or vacant and abandoned buildings that may

prove detrimental to the public health, safety, and welfare.  See, e.g., City of Chicago v. Nielsen, 38 Ill. App. 3d 941, 944 (1976) (section 11--31--1 gives the city "an effective tool for protecting its citizens from the unfortunate and

degrading results of substandard and dangerous housing"); City of Chicago v. General Realty Corp., 133 Ill. App. 2d 662, 667 (1971) (the legislative policy behind section 11--31--1 is "the expeditious protection of the public from the

dangers of unsafe buildings"). However, in protecting the public from dangerous

and unsafe or vacant and abandoned buildings, the legislature must use the least

restrictive means.  In our view, the Illinois statute goes much further than

necessary to protect the public interest.  It gives minimal recognition to the

right of the owner to correct defective conditions and affords local governments

much discretion in selecting targets for demolition.  

	We agree with defendants that section 11--31--1 provides no choice of

repair.  As stated in the statute, a municipality "may demolish" or "cause the

demolition" of a building it deems dangerous and unsafe without offering the

owner the alternative of repair.   The statute provides no safeguards to a

property owner such as requiring that an inspection be made of the property prior

to the issuance of a demolition notice or requiring the municipality to cite the

specific defects or conditions that make the property in question unsafe and

dangerous.  The statute contains no standards or guidelines that a municipality

must adhere to in determining if the property is unsafe and dangerous, yet it

requires the property owner to correct the unknown conditions within 15 days.  

With the exception of the 15-day period between the time of the municipality’s

demolition notice and the time of the municipality’s application to the circuit

court for a demolition order, an owner is allowed no time in which to make

repairs.  Moreover, in our view, any defects that are so serious as to cause a

municipality to issue a demolition notice would be, in many instances, impossible to repair within 15 days.  The statute affords a property owner neither a

reasonable time period in which to make repairs nor the opportunity to make

repairs that are not readily remedied prior to the municipality’s application to

the court for a demolition order.  We agree with defendants that, as written, the

statute allows municipalities "to haul property owners into court on the baldest

of allegations."  

	In the present case a demolition notice and the original complaint for

demolition were based on an exterior visual inspection done by a village trustee

who posted a red card on the building indicating  that it was unsafe, abandoned,

dilapidated, and animal infested.  About a week later the deputy director of the

building and zoning department informed Dorothy Stokovich by letter that the

building violated plaintiff's building code.  No specific violations were cited

and no inspection had been conducted of the building.  The letter simply advised

"unsafe abandoned structure must be brought up to the present building code or

demolished."  Likewise, when plaintiff subsequently sent defendants a notice of

demolition on January 7, 1998, no specific defects or ordinance violations were

cited and no inspection of the property had been conducted.  Rather, the notice

merely stated the property was in a dangerous and unsafe condition.  

	Up to the time of the January 7 notice, there had been no demonstrable

emergency requiring the demolition of the building and no indication that the

building imposed such an imminent threat to the safety of persons or property

that its immediate destruction was necessary.  Defendants should have been

afforded a reasonable time to repair their building so as to comply with the

applicable building code requirements unless the building presented an imminent

threat to the safety of persons or other property.  Under section 11--31--1,

however, an owner is provided with no absolute right to choose repair and no

reasonable time in which to complete the repairs prior to the municipality’s

application to the court for a demolition order.  More importantly, an owner is

provided with no right to repair following the court’s determination that the

defects or conditions alleged by the municipality render the property unsafe and

dangerous.  Yet, before any hearing and determination, it would be uncertain

what, if any, alleged defects  render the property unsafe and dangerous.  Our supreme court in City of Aurora addressed the necessity for a judicial inquiry and findings prior to an owner’s obligation to make repairs.  The court stated:

"The court should find from the evidence what the	 specific defects are

which render the building dangerous and unsafe.  If they are such as may be

readily be remedied by repair, demolition should not be ordered without

giving the owners a reasonable opportunity to make the repairs."  City of Aurora, 38 Ill. 2d at 137.

	In enacting section 11--31--1, the legislature has failed to use the least

restrictive means to protect the public from dangerous and unsafe or vacant and

abandoned buildings.  We think the better approach would have been one similar

to that employed by the legislatures of other states in enacting their demolition

statutes.  Such legislative schemes are more representative of a statute that

protects a compelling state interest while not infringing upon an owner's

fundamental property right because they afford a property owner the choice of

repair irrespective of the cost of the repairs.  See, e.g., Hawthorne Savings & Loan Ass'n v. City of Signal Hill, 19 Cal. App. 4th 148, 23 Cal. Rptr. 2d 272 (1993); Herrit v. Code Management Appeal Board of City of Butler, 704 A.2d 186 (Pa. Commw. 1997); Johnson v. City of Paducah, 512 S.W.2d 514 (Ky. App. 1974); Horton v. Gulledge, 277 N.C. 353, 177 S.E.2d 885 (1970).   	  

	In Hawthorne Savings & Loan Ass'n v. City of Signal Hill, 19 Cal. App. 4th 148, 160, 23 Cal. Rptr. 2d 272, 278 (1993), the City of Signal Hill (City) served

Hawthorne Savings and Loan Association (Hawthorne) with a notice stating that a

building official had determined that an apartment building complex acquired by

Hawthorne through foreclosure was to be demolished.  The notice cited 170 housing

code violations.  The Court of Appeals determined that the City had not afforded

Hawthorne the opportunity to choose repair over demolition as required by due

process and by section 17980 of California’s Health and Safety Code (Code) (Cal.

Health & Safety Code §17980 (Deering 2000)).  Section 17980 of the Code

specifically provided that an owner "shall have the choice of repairing or

demolishing" a substandard building and that, if he chooses to repair, the

building must be brought into compliance "according to a reasonable and feasible

schedule for expeditious repair."  Cal. Health & Safety Code §17980(b)(1)

(Deering 2000).  The court also determined that no health or safety reasons existed requiring immediate demolition and that, pursuant to statute, determining

whether the buildings were suitable for repair was the owner’s decision and not

the municipality’s.  Hawthorne Savings & Loan Ass'n, 19 Cal. App. 44th at 160-63, 23 Cal. Rptr. 2d at 278-80.   	

	Unlike the California statute, section 11--31--1 does not give the property

owner the right to repair his property.  Rather, the statute focuses on allowing

a municipality to get rid of any building that it considers dangerous without

affording an owner the opportunity of doing whatever is necessary to make the

building safe and at whatever cost the owner is willing to spend.  We agree with

defendants that, as it presently exists, section 11--31--1 is unconstitutional

because it authorizes a municipality to take private property without

compensation and without due process by demolishing or requiring demolition

without first giving the owner the choices of repairing the property within a

reasonable time and of spending whatever it costs to bring the property into

compliance.  As pointed out in Washington v. City of Winchester, 861 S.W.2d 125, 127 (Ky. App. 1997), the cost of compliance as well as the method is a property

owner’s decision and "far be it from the City to say how a reasonable person

should spend his/her money."

	In view of our determination that section 11--31--1 is unconstitutional,

we vacate the judgment of the circuit court of Lake County ordering demolition

and remand the cause with instructions that the court allow defendants a

reasonable time in which to make repairs to their building before ordering

demolition.  Our determination makes it unnecessary to address defendant's

remaining issues.

	Reversed and remanded with directions.

	BYRNE and KAPALA, concur.