Dedic v. Board of North Shore Towers Condominium Ass'n , 2018 IL App (1st) 171842 ( 2018 )

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Appellate Court Date: 2018.07.25
13:04:48 -05'00'
Dedic v. Board of North Shore Towers Condominium Ass’n,
2018 IL App (1st) 171842
Appellate Court SELMA DEDIC, Plaintiff-Appellant, v. BOARD OF NORTH
Caption SHORE TOWERS CONDOMINIUM ASSOCIATION, Defendant-
Appellee.
District & No. First District, Fourth Division
Docket No. 1-17-1842
Rule 23 order filed March 29, 2018
Motion to publish
allowed April 24, 2018
Opinion filed May 17, 2018
Decision Under Appeal from the Circuit Court of Cook County, No. 16-CH-14099; the
Review Hon. Diane Joan Larsen, Judge, presiding.
Judgment Affirmed.
Counsel on Richard D. Grossman, of Chicago, for appellant.
Appeal
Kevin M. O’Hagan, James W. Davidson, and Sean G. Rohan, of
O’Hagan Meyer LLC, of Chicago, for appellee.
Panel JUSTICE McBRIDE delivered the judgment of the court, with
opinion.
Presiding Justice Burke and Justice Gordon concurred in the judgment
and opinion.
OPINION
¶1 Condominium unit owner Selma Dedic sought a permanent injunction to prevent the board
of managers of North Shore Towers Condominium Association (Board) from levying a $1.01
million special assessment to remediate all 90 balconies in her residential condominium
complex in Skokie, Illinois, and from executing a contract to perform the work. 1 Dedic
contended the Board could not proceed until it held a referendum vote of the unit owners. The
community’s declaration of condominium ownership and the Condominium Property Act
(Act) provide that the imposition of a special assessment of this magnitude may be nullified by
an owner referendum. 765 ILCS 605/18(a)(8)(ii) (West 2014) (20% of condominium
association members may demand a referendum of a large special assessment, and unless a
majority of voters reject the assessment, it is ratified). However, regardless of the size of a
special assessment, if it addresses an “emergenc[y]” or is “mandated by law,” then owners are
not entitled to vote. 765 ILCS 605/18(a)(8)(ii), (iv) (West 2014). It is undisputed that Dedic’s
balcony, situated within an interior courtyard of the 40-year-old condominium complex, had
not deteriorated to the extent that it posed an imminent safety concern to her. After a two-day
bench trial, the circuit court judge found that the railings of 56 of the 90 balconies could not
withstand the 200-pound minimum point load required by local building code and, thus,
remediation was an “emergency” and was also “mandated by law.” On appeal, Dedic contends
the evidence showed that only a handful of the balconies actually presented an immediate
danger, that a general refurbishment of the balconies may be prudent and a sign of good
property management but is not an “emergency,” and that, until the Board undertook
“extensive repairs,” it would not be “mandated by law” to retrofit or replace the balcony
railings so that their height and spindle spacing conformed with a new or updated building
code.
¶2 The Board adopted the special assessment on September 21, 2016, based on competitive
bids, which had been received in June and August 2016, and the Board intended to proceed
with immediate repairs of the most critical balconies before the arrival of winter weather.
However, Dedic and 21 other unit owners petitioned the Board on October 4, 2016, to hold a
referendum. Section 14(g) of the North Shore Towers condominium association declaration of
condominium ownership allows unit owners to call a referendum vote on any special
assessment passed by the Board that exceeds 115% of the sum of the prior year’s regular and
special assessments. That section states:
“(g) Special Assessment. The Board may levy a special assessment (1) to pay (or to
build up reserves to pay) extraordinary expenses incurred (or to be incurred) by the
Dedic has consistently omitted the word “Towers” when referring to the Board, the condominium
1
association, and the condominium complex. We have used the names that appear in the condominium
declaration.
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Association for a specific purpose including, without limitation, to make additions,
alterations or improvements to the Common Elements, *** or (4) to cover the cost of
an emergency. Any special assessment, which will require the aggregate payment with
respect to a Unit which results in a sum or all regular separate assessments payable in
the current fiscal year exceeding 115% of the sum of all regular and special
assessments payable during the preceding fiscal year, the Board, upon written petition
of the Unit Owners with twenty percent (20%) of the votes of the Association delivered
to the Board within fourteen (14) days of the Board action, shall call a meeting of the
Unit Owners within thirty (30) days of the date of delivery of the petition to consider
the special assessment; unless a majority of the total votes of the Unit Owners are cast
at the meeting to reject the special assessment, it is ratified. Special assessments related
to emergencies or mandated by law may be adopted by the Board without Unit Owner
approval and will not be subject to the Unit Owners’ right to petition as mentioned
above. Each Owner shall be responsible for the payment of the amount of the special
assessment multiplied by the Unit’s Undivided Interest [in the Common Elements
appurtenant to a Unit as allocated in the original Declaration].” (Emphasis added.)
¶3 Section 14(h) of the declaration further addresses emergency special assessments and
defines the term “emergency,” stating:
“(h) Emergencies. The Board may levy a special assessment for expenditures
related to emergencies or mandated by law, without being subject to Unit Owner
approval of [or] the Unit Owners’ right to petition as mentioned in section (g) above.
An emergency is defined as an immediate danger to the structural integrity of the
Common Elements or to the life, health, safety or property of the Unit Owners.”
¶4 These provisions are consistent with the Act’s general rules concerning the minimum
content of condominium bylaws. Section 18(a)(8) of the Act stated in relevant part:
“(ii) that except as provided in subsection (iv) below, if an adopted budget or any
separate assessment adopted by the board would result in the sum of all regular and
separate assessments payable in the current fiscal year exceeding 115% of the sum of
all regular and separate assessments payable during the preceding fiscal year, the board
of managers, upon written petition by unit owners with 20 percent of the votes of the
association delivered to the board within 14 days of the board action, shall call a
meeting of the unit owners within 30 days of the date of delivery of the petition to
consider the budget or separate assessment; unless a majority of the total votes of the
unit owners are cast at the meeting to reject the budget or separate assessment, it is
ratified, *** (iv) that separate assessments for expenditures relating to emergencies or
mandated by law may be adopted by the board of managers without being subject to
unit owner approval or the provisions of item (ii) above or item (v) below. As used
herein, ‘emergency’ means an immediate danger to the structural integrity of the
common elements or to the life, health, safety or property of the unit owners ***[.]”
(Emphases added.) 765 ILCS 605/18(a)(8)(ii), (iv) (West 2014).
¶5 The Board declined to schedule a unit owners’ vote. Attorney Kerry T. Bartell, who
specializes in Illinois community association law, sent Dedic an explanatory letter, stating in
part:
“It is the opinion of [the licensed, independent structural engineering firm engaged by
the Board] that a number of the balconies are unsafe for use by the homeowners, and
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[this law firm] understand[s] that the Board has already advised those owners to refrain
from using them until the repairs can be completed. This is an immediate life and safety
hazard for the property and we understand it affects many of the balconies. Pursuant to
the Act, this is an emergency repair and therefore, the petition that you submitted is
ineffective and not appropriate. Accordingly, the Board will not be calling a meeting of
the owners to vote on the rejection of the special assessment since this remedy is not
available to you at this time.”
¶6 On October 27, 2016, Dedic filed, in Cook County circuit court, her two-count complaint
for preliminary and permanent injunctive relief in which she alleged that the Board violated
both the condominium declaration and the Act because “approximately 96% of the
contemplated work is not required to be, nor is it, ‘immediate’ ” and it does not constitute an
“emergency.” Dedic further alleged she had been deprived of “a ‘due process’ or voting right”
under the condominium declaration and the Act. She asked the court to prevent the
implementation of the special assessment until a unit owner referendum had been conducted
and to prevent the Board from entering into any contract to repair, replace, or perform work on
balconies not in need of immediate repair. After the Board filed an answer denying the material
allegations, the parties abbreviated their discovery and filed stipulated facts and joint trial
exhibits to be used at the hearing on Dedic’s motion for a preliminary injunction. There was no
dispute over the qualifications of the opposing structural engineering experts, and the joint
exhibits included the engineers’ reports and deposition transcripts. When the hearing began,
Dedic proposed that her motion be treated as one for a permanent, rather than preliminary,
injunction, and with the Board’s agreement, the judge ruled that Dedic would be held to the
higher standard of proving the merits of her claim. We will set out the undisputed facts before
summarizing the trial testimony and the court’s ruling.
¶7 North Shore Towers is a 90-unit, residential condominium development in Skokie,
consisting of two, six-story buildings. The property is situated at the intersection of Gross
Point Road and Golf Road, and the buildings’ addresses are 9558 and 9560 Gross Point Road.
The complex was developed in 1979, and the buildings were nearing 40 years of age in early
2015 when the Board received complaints about the condition of certain balconies. Each condo
has two or three bedrooms and an appurtenant balcony. The balconies each measure
approximately 23 feet by 5 feet, with some variation among the units, and they are considered
limited common elements of the property.
¶8 The condominium declaration and Act require the Board to provide for the operation, care,
upkeep, maintenance, replacement, and improvement of the common elements. 765 ILCS
605/18.4(a) (West 2014). The Board may levy and spend special assessments to pay for the
common benefit of all the owners. 765 ILCS 605/18.4(c) (West 2014). The members and
officers of the Board must exercise due care in the exercise of their duties and are held to be
fiduciaries to the unit owners. 765 ILCS 605/18.4 (West 2014).
¶9 In the spring of 2015, the Board retained the engineering and architectural firm of Wiss,
Janney, Elstner Associates, Inc., to evaluate the condition of the aging balconies. Licensed
structural engineer Tracy R. Naso, who is an associate principal and project manager at the
engineering firm, supervised the project and authored a report dated July 14, 2015, setting out
the firm’s observations and recommendations.
¶ 10 Naso’s report indicated that she earned a bachelor of science degree in civil engineering
from the University of Kentucky in 2003 and a master of science in structural engineering from
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the University of Illinois at Urbana-Champaign in 2004. Naso “specializes in the investigation
and repair of reinforced concrete structures, including conventional, post-tensioned,
prestressed, and antiquated systems” and has experience with “tunnels, parking structures,
plazas, stadiums, pools, and highrise towers.” Naso also “designs structural repairs for the
remediation and strengthening of new and existing structures, develops construction
documents, and provides construction period observation and administration services for the
implementation of repair designs.”
¶ 11 Naso documented that her firm’s inspections at North Shore Towers had begun in response
to the reports of four unit owners regarding the condition of their balcony floors or handrails.
In April and May 2015, Naso and her team of engineers completed a “close-up” inspection of
units 407B, 505B, 602B, and 603B in the 9560 Gross Point Road building and used binoculars
to conduct “a visual review from grade” of all the balconies in both condo buildings. Naso,
who had experience in this type of evaluation, averred that “[v]isual inspection of balconies
from the ground, using binoculars, is a customary method used in the industry to assess
structures like North Shore Towers’ balconies.”
¶ 12 After the report and passage of the special assessment, additional owners asked for closer
inspections of their balconies. In November 2015, one of Naso’s team members, Dick Arnold,
returned to the site and stood on and inspected an additional 39 balconies. Naso did not prepare
a second written report but was in communication with the Board and also attended some
board meetings during this time frame regarding how to best address the identified problems.
Naso subsequently completed an affidavit dated March 3, 2017, in connection with this
litigation.
¶ 13 In her July 2015 report, Naso described the balcony construction as corrugated steel
decking, which was supported on floor joists that cantilevered out from the building structure.
A steel channel had been installed around the perimeter edge of each balcony, and the steel pan
was then filled with concrete. The concrete and steel base was shielded by a green
waterproofing membrane, which covered the top of the balcony and had a short return up the
exterior of the building’s masonry veneer. Six steel posts had been welded into the steel
channel installed around the perimeter of the balcony, and then six vertical anchors were fitted
over the posts and secured with screws. From there, a prefabricated aluminum railing was
anchored by screws into the six vertical posts and into the masonry. The top height of the rails
was 41 inches, with a 4-inch gap between the top of the balcony slab and the bottom rail. The
vertical spindles were spaced 6 inches apart.
¶ 14 Naso documented bubbling, peeling, lifting, and cracking in the waterproofing membranes
of the four balconies that had prompted the investigation and been available for “close-up
investigation.” She indicated that, once water penetrated beneath the membrane, it became
trapped, the long-term exposure to moisture caused the steel edge channel to corrode, built-up
rust caused the edge channel to rotate outward, and the attached hand railing then also rotated
outward. In addition, the trapped water saturated the concrete infill and damaged it through
cyclic freezing and thawing.
¶ 15 With regard to the 86 balconies that been inspected from the ground level, Naso
documented that some had visible corrosion, extensive damage to the handrail bases, and
outward displacement of the railings. The corrosion and “[e]xtensive damage” that occurred to
the bases of the handrail posts was “typical for the balconies along Gross Point Road,”
although Naso did not specify how many balconies were on Gross Point Road. “At these
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locations, the aluminum was split vertically along the corners of the bases of the posts, and
both dark red and white corrosion byproducts were visible” from the ground. The red corrosion
was from the steel base, and the white corrosion was from the aluminum railing. Naso noted
visible handrail displacement in 23 balconies along Gross Point Road, one handrail that was
detached from the exterior masonry, and one handrail with a separated joint. Thus, some but
not all 90 balconies had defects.
¶ 16 In order to remediate the balcony floors, Naso recommended removing the unsound
concrete; cleaning and inspecting the steel decking; making repairs to the steel decking, edge
channel, and their welded connections; coating the exposed steel surfaces with
corrosion-inhibiting paint; restoring the concrete infill; and, after adequate curing, applying
flexible sealant between the steel edge channel and the concrete infill slab and finally
reinstalling the waterproofing membrane. In order to remediate the issues with the railings,
Naso recommended reinforcement or replacement of the posts, and she pointed out that
reinforcement was a short-term solution that would not address the underlying corrosion and
that it appeared the posts were part of modular system whose components could be replaced as
needed. There was a potential, however, that the local building authority would insist on
replacement of the handrails. The 41-inch top height of the existing handrails was slightly
shorter than the 42 inches required by the current building code, and the 6-inch spacing
between the spindles exceeded the maximum 4-inch spacing permitted by the current building
code. If the building authority determined that the “repair [cost] exceeds a certain percentage
of the replacement cost,” then the authority might require retrofitting or replacing the handrails
to conform with the current building code.
¶ 17 Finally, Naso noted, in addition to the observed deterioration in the concrete floors, steel
posts, and aluminum railings, that in some instances, the only problem was that the “handrail
connections” were visibly “loose or displaced” and “should be repaired as part of routine
building maintenance.”
¶ 18 Naso’s written report was four, single-spaced pages and accompanied by numerous
photographs of the identified issues. For instance, “Figure 1. Exposed structural framing on
underside of balcony,” “Figure 2. Failure of membrane at joint between steel edge channel and
concrete,” and “Figure 3. Pullout of anchors at top balcony railing.”
¶ 19 Naso’s deposition transcript indicates that in addition to her written report, she met with the
Board to discuss the “repair documents,” attended Board meetings regarding the problems, and
exchanged e-mails with the property manager, instead of writing a second written report. Naso
did not recommend multiple repair projects because the structural degradation was ongoing
throughout the property and time and money would have to be spent each time a contractor
assembled scaffolding. Although Naso stood on only four balconies in the spring of 2015,
during a follow-up inspection in November 2015, one of the firm’s engineers stood on and
inspected an additional 39, for a total of 43 “close up” inspections. Naso’s firm notified the
Board that it should advise certain unit owners they should not use their balconies due to the
“dangerous condition.”
¶ 20 In her subsequent affidavit, Naso emphasized the severity of the problems that were
observed in 2015 and the extent of her safety concerns in 2015. She summarized that a group of
balconies “constitute unsafe conditions” and “require immediate repair” and another group of
balconies are “less advanced” but “are also in immediate need of repair.” In other words, it was
her “professional opinion that North Shore Towers should begin balcony repair work
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immediately.” It was likely that none of the balconies highlighted in her 2015 report could
“sustain the concentrated 200-pound load required by the building code” and that the balconies
“pose a safety threat.” The worst of the railings had detached from the building and could not
“fulfill [the] intended purpose of preventing a fall.” Naso also cautioned against the additional
deflection (outward bowing) that could occur in the railings, such that “one could fall over the
railing.” The most cost-effective and fastest way to handle the structural degradation that had
occurred or would occur at North Shore Towers was to address all of the balconies, regardless
of their state of disrepair, in one project. This was largely due to the cost of assembling
scaffolds to access the balconies and the efficiency that would occur by ordering materials and
implementing the repairs through one contract, rather than in multiple projects. Multiple
projects would be more expensive, would take longer, and were inadvisable because all of the
balconies were of similar construction and the same age, the structural degradation was
ongoing, and the rate of deterioration would increase over time. Naso further cautioned that her
engineering firm had last inspected the balconies in November 2015 and that it was “very
possible” that the degradation had worsened and also now encompassed additional balconies,
due to passing of two winters, a spring, and a summer. Furthermore, the degradation would
continue while North Shore Towers obtained permits, suffered delays or shutdowns due to
inclement weather, including the onset of another winter, and completed a project that would
require at least six months.
¶ 21 Dedic’s structural engineer, Moshe Calamaro, completed a bachelor of science degree in
1976 at Technion, Israel Institute of Technology, in Haifa, Israel. Calamaro then gained
experience as a structural design engineer while working for firms in the Chicago area until
opening his own structural engineering office in Evanston, Illinois, in 1991. Calamaro offered
his written opinion on the basis of his two site visits to North Shore Towers in March and April
2017 to “approximately 12” units, the observation of additional units from street level, and a
review of Naso’s report. During his deposition on April 19, 2017, Calamaro clarified that he
stood on eight balconies and, from that vantage, he looked over to evaluate four adjacent
balconies.
¶ 22 In his one-page letter to Dedic’s attorney dated April 10, 2017, Calamaro indicated he
agreed with Naso that the balconies suffered from “deficiencies with different degrees of
severity,” including problems with (1) the railings’ horizontal top rail connection to the
masonry building, (2) the railing posts’ condition/connection to the balconies steel edge
channel, and (3) the condition of the steel edge channels and the joint between the steel and
concrete. Calamaro indicated he agreed with the proposed repair details, other than the scope
of the concrete deck edge repair, “which is the most expensive part of the project.” It was his
opinion that the repair drawings that had been used to solicit competitive bids did not “directly
address” damage to the rotated steel channels and that this issue “will add substantial costs that
are not addressed in the bids.”
¶ 23 During the April deposition, Calamaro made clear that he was tasked with inspecting
specific balconies and that it was not his intention to examine every balcony at the
development. At the conclusion of his letter to counsel, Calamaro indicated that on the basis of
his “limited site visit,” he concluded:
“[N]one of the units that I have observed are in imminent condition of collapse or
should be considered to require emergency repairs. After a full review of all the
[balconies], a summary/list of the balconies that should not be used due to railing issues
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or steel [channel] issues should be identified and be repaired on an expedited basis. The
rest of the balconies should be identified for their required repairs and work should
proceed as acceptable to the *** owners and as agreed with the contractors.”
(Emphasis in original.)
¶ 24 At his deposition, Calamaro acknowledged that he had not been retained to analyze
whether any of the balconies were code-compliant, he had reached no opinion on the topic, and
he “couldn’t testify to a reasonable degree of structural engineering certainty whether or not
the 12 balconies *** were compliant with any applicable codes.” Thus, he had no opinion as to
Naso’s statement in paragraph 14 of her report: “The [56] balconies highlighted [in yellow and
red marker on Exhibit C of her report] have a reduced capacity for a load carrying as described
in the building code. In their current condition, these balcony railings would not likely be able
to sustain the concentrated 200-pound load required by the building code. Therefore, they do
not comply with the law and pose a safety threat.” Calamaro agreed that if a balcony did not
comply with a local or state building code, it should be brought into code compliance, in part to
avoid fines or penalties, but Calamaro disagreed that this should be done “immediately.” He
agreed that he could render an opinion only as to the 12 balconies he had stood on or
overlooked from an adjacent balcony. He conceded that the Naso “investigation and
recommendations [were] much more detailed” than his.
¶ 25 In his opinion, a balcony’s condition would be an “emergency” if its concrete slab were
going to collapse, but it would not be an “emergency” if its railing could not withstand 200
pounds. “[I]f a railing won’t withstand the required load, which is set forth in the building
codes, you shouldn’t use the balcony” because it is “dangerous [but only to someone using the
balcony], and [he] would prohibit somebody from entering the balcony.” Also, the “[railings]
that had the deformity or bowing should be closely looked at,” and Calamaro would
“recommend to the owners not to use [the balcony in that condition]” and “to evaluate it and
repair it.” Under questioning by Dedic’s attorney, Calamaro confirmed that the issues
identified at North Shore Towers were “confined to the railings.”
¶ 26 Dedic testified first at the trial. Dedic owns unit 208B with her husband. When the Dedics
purchased the condominium in 2005, they had an inspector come out, and the inspection report
did not make an issue of the balcony. In September 2016, she received notice of the special
assessment and that her unit’s share was $17,000. Dedic was “shocked” because after 12 years
she had heard no complaints about the conditions of the balconies and because there was
“nothing wrong with [her] balcony.” Dedic did not know, at the time, that the Board had hired
Naso’s firm in 2015. The Board’s meeting minutes for May 2016 indicate that Dedic was
present and that the board discussed the need for balcony repairs and its receipt of four
competitive bids, but Dedic did not recall hearing this discussion. Dedic and a neighbor
solicited a petition to take a unit owner vote on the special assessment, and after obtaining
signatures from more than 20% of the unit owners, Dedic gave the petition to the president of
the condo board. At the next board meeting, the Board’s lawyer, Bartell, said the special
assessment was to cover an “emergency” and there would be no referendum. Karen Chou, the
owner of unit 505A and a professor of structural engineering, was also there to answer
questions. Chou said that her balcony was fine and was not one of the 56 balconies listed as not
code-compliant but that Chou supported Naso’s report and recommendations.
¶ 27 Dedic admitted that her intention was to vote down the special assessment regardless of
what was in Naso’s report and that Dedic filed suit without having a structural engineer review
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the information. Dedic does not have an engineering background, and when asked how she
could determine the accuracy of Naso’s report without having an expert look at it, Dedic
responded, “I know that [a] majority of the people in my building [do not] have problems,
including me.” According to Dedic, Naso “only inspected three to four [balconies] and then
she made [the] determination [that all of the balconies should be addressed in a single
project].” Dedic has since been elected to the Board and testified that to obtain answers
regarding structural engineering, she would “probably research or hire somebody,”
specifically a structural engineer.
¶ 28 Judy Erlich has owned unit 405A since May 2005, became a Board member in 2013, and
was reelected for another two-year term and chosen to be the Board president as of November
2015. Erlich testified that the “balcony issue started to surface” in 2014 when a few owners
made complaints, starting with one owner who said her balcony was “in bad shape” and
needed to be addressed so that she could move out the following year. Erlich could not recall
how many owners came forward, but it was enough that the Board discussed it in “various
Board meetings” and hired Naso’s firm. Naso also attended “several” Board meetings. Board
meetings were open to all unit members, but unless it was the annual general meeting or there
was “an issue at hand,” then maybe about only 30% of owners attended. When Naso
determined the balconies had some serious issues, the Board agreed Naso should solicit bids
from contractors based on the findings. The Board had the property manager call those unit
owners whose balconies were an “emergency,” and Erlich also spoke with other unit owners
who asked about the situation. Erlich had “[m]any” conversations with Naso about the
balconies. The Board invited the opinion of Karen Chou, a unit owner and professor of
structural engineering at Northwestern University, whose balcony was fine and who would not
have any apparent reason to support a project that addressed all of the balconies. The Board
sought out Chou’s review of the reports and the contractor bids because the Board was
“shocked” by and skeptical of the bids. After Chou reviewed everything, she met with the
Board and Naso to question every line item and “give [them] quite a cross-examination.” Most
of the Board did not understand the technical conversation between the engineers, but Chou
and Naso came to an agreement that all the recommended work needed to be done. Erlich
relied on the engineers’ knowledge and recommendations about how to proceed. The Board
discussed remediating only the worst balconies, but when the Board learned how many other
balconies had degraded and would further erode over the years, the Board decided it made
sense to address them all together. Erlich read the condominium declaration to mean that even
a single balcony could result in an “emergency” special assessment. Three years earlier the
Board had followed expert advice to “completely redo” the elevators in order to make them
safe and bring them up to the current code, because that was the Board’s practice, even if not
cited for violations. When Erlich was asked “why somebody whose balcony is in perfect shape
as far as you know is paying to have her balcony repaired,” Erlich responded that neither she
nor Dedic “know what to look for and whether or not there is a real issue” and that
condominium association members “all share in the expenses of the entire building.” When
asked whether she had received an opinion on the percentage of the overall cost that was being
incurred to address the 56 defective balconies, Erlich answered that Naso told her 85 to 90% of
the total cost was to address those 56.
¶ 29 Calamaro testified consistently with his letter and deposition regarding the eight balconies
he stood on and the four he inspected from an adjacent balcony. He did not consider the
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condition of the balconies to be an “emergency” because they were not in imminent peril of
collapse or falling off the building. He agreed that a balcony railing that would not support a
200-pound point load (or 50 pounds per foot) was “dangerous,” that someone pushing on such
a railing could fall off, and that such a balcony “shouldn’t be used as a balcony.” Naso did not
cite a scientific analysis for her conclusion that the railings could not withstand a 200-pound
point load. Calamaro had not determined whether the railings were capable of withstanding a
200-pound point load. He also agreed that all of the North Shore Towers balcony railings were
out of code-compliance because of the inadequate railing height and spacing of the bars, but he
said if the railings were not being repaired or worked on, the Board did not have to upgrade the
railings to the code standards.
¶ 30 Dolores Orlove, who has owned unit 305A for 28 years, testified that she had attended “a
board meeting” in the last year and did not recall any discussion of the balconies’ structural
integrity, she did not discuss the topic with “anyone from the board,” and she did not “ever
have a discussion with anyone regarding whether any of the balconies were code compliant.”
¶ 31 At the conclusion of Orlove’s testimony, Dedic rested her case, and the Board moved for a
directed finding. The judge denied the Board’s motion, and the trial continued.
¶ 32 Naso testified consistently with her report, affidavit, and deposition. Naso added that the
waterproof membranes in use at North Shore Towers were to protect the structures, the
waterproof membranes had a service life of 10 to 15 years, and the visible corrosion staining
was an indication that “the deck is corroding [underneath the membrane].” When steel
corrodes, the volume of rust can be up to 10 times greater than the volume of the original
material, so there was a volumetric increase creating pressure, which caused some of the
railings to bow outward. After Naso’s written report to the Board in July 2015, 39 additional
owners requested inspections, at which point, Naso’s colleague, under her supervision,
inspected those additional balconies in November 2015. Like Naso, he performed a visual
inspection while standing on each of those 39 balconies and using a hammer to sound different
surfaces for deterioration. The firm did not author a second formal written report at that point,
but it did communicate to the Board and confirm that there was a systemic problem with a
relatively large portion of the 90 balconies and that the firm was recommending that the Board
proceed with repairs.
¶ 33 Although Naso identified only 56 balconies with inadequate railings, she disagreed with
Dedic’s contention that “nothing is wrong” with the other 34 balcony railings. All 90 balconies
were the same age and construction and were susceptible to generally the same loads and
forces that the firm observed during the inspections. While the 56 were the “worst,” the 34
could have “ongoing deterioration that just hasn’t manifested yet.” This is because the
waterproof coating that had been applied was “good practice” but there was “very little
obvious maintenance” over the years and the product had not been recoated at the 10- or
15-year mark as it should have been. Naso said “based on our experience with the coatings ***
we were seeing [cracks and corrosion staining which indicate] that [the coatings] were no
longer effective,” that water was accessing the steel components, causing corrosion which led
to section loss, which in the extreme case is going to lead to structural failure. So the firm
recommended that the Board begin repairing the 56 balconies that exhibited structural
degradation and that, during the repair project, the firm access the remaining 34 balconies from
the exterior, perform close-up inspections, and recommend any additional repairs that it found
were necessary. The firm also recommended that the Board recoat all the balconies in order to
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“significantly slow down” the number of balconies that would become hazardous in the near
future. The firm made these recommendations based on the site inspections performed in the
spring of 2015, November 2015, and the spring of 2016, meaning that the recommendation
was already between a year and two years old and that the degradation was ongoing.
¶ 34 The balconies had not been cited for building code violations. The “issue” the firm
identified was not the height or spacing of the railings as mandated under the modern building
code but was “splitting and corrosion and section loss, that has reduced the inherent capacity”
of the railings. “[I]n laymen’s terms, it’s not that these balconies are only 41 as opposed to 42
inches high, it’s that if you lean on them they’re going to break.”
¶ 35 Nearly all of Naso’s work involved investigating a reported problem, determining the
cause, designing repairs, soliciting bids, and then following the repair project through to
completion of the work. Because of the numerous balconies in the Chicago area, there are
contractors that specialize in repairing balconies, and these were the contractors that Naso’s
firm recommended and solicited bids from for the North Shore Towers work. The chosen
contractor would rig a suspended scaffold or swing stage from the roof in order to descend to
the individual balconies without having to enter any of the owners’ units. Naso or another
representative of the firm would use this access in order to evaluate the actual condition of each
balcony and then instruct the contractor to perform the individual corrections that were
necessary. The contract had been written so that the contractor would be doing only the repairs
that the firm identified through these further, individual balcony inspections. Every balcony
would get new masonry connectors, deck recoating, and protective paint on the steel, but the
structural repairs would be individualized. Remediating just the 56 worst balconies accounted
for 80 to 85% of the total budgeted cost. Naso met with the Board and Chou to walk through
the bids in detail and discuss the benefits and drawbacks of addressing only the 56 balconies.
Naso projected that this approach would lead to another significant repair project within five
years.
¶ 36 Naso attended two “town hall meetings” to answer questions posed by the unit owners. The
“reception [at the first meeting] was a little hostile,” there were “a lot of comments [from unit
owners] that did not seem to be fully informed,” and the evening was “chaotic.” Relatively few
questions were directed to the repair project itself; instead, there were “a lot of accusations”
and the implication was that somehow the Board, the firm, or the contractor was personally
benefitting from the project. Naso was not able to give full answers because of the many
interruptions. It was “difficult to have a frank conversation with any of the owners” in that
setting, and several had to come up after the meeting to get a full explanation. The second
meeting was a little smaller and focused on the Board’s decision and the amount of the special
assessment.
¶ 37 Naso indicated her firm would earn 8 to 10% of the total cost of the project and that this
range was “very typical for professional services” on this type of project. Naso denied that this
fee was why she recommended doing preventative maintenance in addition to structural
repairs. The winning bid was actually the result of Naso asking one of the contractors to review
some of their specified costs and lower them if possible, which the contractor did.
¶ 38 Naso did not perform a physical load test to determine that the railings could not support
200 pounds of pressure because it was “obvious based on [her] experience and training that
that element cannot support the required load” and she used “engineering judgment.” Naso
advised, and the Board followed through on, telling specific owners and “some” additional
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owners who subsequently reported deterioration to not use their balconies. The other 53
balconies presented a problem if someone tripped and fell against the railing because the
railing might not be capable of restraining them from falling off the balcony. Naso disagreed
that “a substantial part” of the recommended work was “preventative maintenance” and
characterized it as “maybe 20 percent of the contract.”
¶ 39 Karen Chou owns unit 505A and is an assistant department chair and clinical professor at
Northwestern University’s department of civil and environmental engineering. At one of the
Board meetings regarding the balcony problems, Chou volunteered that she was a licensed
professional engineer and willing to help the Board evaluate the engineering report and
recommendations. Chou was one of the second wave of 39 unit owners who asked for a
close-up balcony inspection. Chou questioned the engineer who inspected her balcony and
watched him take photos and measurements of the railing, and look at the anchors. Chou’s
balcony did not have structural problems. Chou got her own copy of the engineering report,
met with Naso to discuss the details, and was satisfied by Naso’s answers. This was before the
contract had been sent out for bids. After unit owners received letters about the special
assessment, there was a meeting that was “very emotionally charged, very chaotic,” and “a
shouting match.” Chou was given an opportunity to tell them her opinion about the project but
testified, “it’s almost like I’m talking to my students,” “I don’t believe it [got] through,” and no
one asked her any follow-up questions. Chou disagreed with the statement, “you don’t mind
paying the amount you were assessed,” and she said that as a condominium owner, she had to
“abide by the rules.”
¶ 40 Attorney Kerry Bartell testified that since 1998, she has devoted her law practice to
advising and representing community associations, including advising condominium boards
about their responsibilities under their declaration and the Act. Bartell advised the Board about
adopting the special assessment, taking a loan, and how to respond to the unit owner petition
for a referendum. The Board has a fiduciary responsibility to maintain the property, protect its
residents, and make sure the association operates properly. The referendum language allows
unit owners to “check on what the board’s doing,” but where there is an immediate threat or a
mandate by law, then “we don’t have any choice.” At North Shore Towers, the safety issue and
the mandate by law were one and the same. For something to be “mandated by law,” a board
did not have to wait for a municipality to tell the board to comply with the law. In Bartell’s
experience, “we are put behind the eight ball when we have the village involved,” because the
village’s priority is to bring the building up to code; so in a lot of cases there are daily fines, and
once the contractors are aware that the village is mandating the work, their prices “go up
exponentially.” It was advantageous to a condominium association to fix a code compliance
issue before the municipality got involved. Once the engineers determined there was a
structural integrity issue, which is an emergency and a mandate by law, Bartell told the Board
of North Shore Towers not to hold a referendum because the Board members should not be
delayed or inhibited in carrying out their fiduciary duties. If a special assessment were voted
down by the unit owners, the Board “goes back to the drawing board and has to start over.”
Potentially, the Board would have to tell the Village about the engineering report and make the
project much more expensive. Some condominium declarations enable the board to force
specific owners to pay for the repair or replacement of “exclusive-use” limited common
elements, but the North Shore Towers declaration was not written that way.
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¶ 41 At the conclusion of the two-day trial, the judge took the case under advisement and
rendered a written decision approximately a month later. The judge found that both the
emergency and “mandated by law” exceptions apply in this instance, and she denied Dedic’s
motion for a permanent injunction. This is the ruling on appeal.
¶ 42 To be entitled to a permanent injunction, the party seeking the injunction must demonstrate
(1) a clear and ascertainable right in need of protection, (2) that he or she will suffer irreparable
harm if the injunction is not granted, and (3) that no adequate remedy at law exists. Swigert v.
Gillespie, 2012 IL App (4th) 120043, ¶ 27, 976 N.E.2d 1176. Generally, a decision on whether
to grant injunctive relief will be disturbed on review only if the decision is contrary to the
manifest weight of the evidence. Swigert, 2012 IL App (4th) 120043, ¶ 28; Gerber v.
Hamilton, 276 Ill. App. 3d 1091, 1093, 659 N.E.2d 443, 445 (1995). A trial court’s judgment is
against the manifest weight of the evidence if the opposite result is clearly evident. Gerber, 276
Ill. App. 3d at 1093.
¶ 43 However, when a case raises “pure questions of law,” then the merits of a permanent
injunction ruling are reviewed de novo. Swigert, 2012 IL App (4th) 120043, ¶ 28. Dedic
contends that the de novo standard of review governs in this instance because, by agreement,
the expert engineering reports and stipulated facts were admitted into evidence and the trial
judge was then required only to construe the language of the section 14(g) of the condominium
declaration and section 18(a)(8) of the Act and in particular the meaning of “emergenc[y]” and
“mandated by law.” 765 ILCS 605/18(a)(8)(ii), (iv) (West 2014).
¶ 44 Dedic supports her contention with citations to unpublished orders, that is, orders which
have no precedential value and are distributed with the express warning: “NOTICE: This order
was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except
in the limited circumstances allowed under Rule 23(e)(1).” Ill. S. Ct. R. 23(e)(2) (eff. Jan. 1,
2011); see Morrissey v. Harte, 2014 IL App (1st) 113643-U; Board of Directors of the Plum
Creek Condominium Ass’n v. Lorman, 2013 IL App (1st) 121198-U. Dedic does not come
within any of the stated exceptions for citing an unpublished order, and we will not condone
her violation of the mandatory rule by considering such orders. Voris v. Voris, 2011 IL App
(1st) 103814, ¶ 17, 961 N.E.2d 475 (citation to an unpublished order is “strictly prohibited,”
and neither an appellant nor appellate can use a Rule 23 order to support any claim or
argument).
¶ 45 Dedic also supports her contention with cases involving summary judgment. Summary
judgment is appropriate when no material fact is disputed and the facts and the law support but
a single conclusion. See Murphy-Hylton v. Lieberman Management Services, Inc., 2016 IL
120394, ¶ 16, 72 N.E.3d 323 (“A motion for summary judgment will be granted only where
‘the pleadings, depositions, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.’ ” (quoting 735 ILCS 5/2-1005(c) (West 2012))); Palm v. 2800
Lake Shore Drive Condominium Ass’n, 2014 IL App (1st) 111290, ¶ 50, 10 N.E.3d 307 (“In
deciding a motion for summary judgment, the court must not try a question of fact but rather
determine whether one exists or if reasonable persons could draw different inferences from the
undisputed facts.”); Kopchar v. City of Chicago, 395 Ill. App. 3d 762, 919 N.E.2d 76 (2009)
(trial court dismissed plaintiff’s claim for a mandatory injunction and entered summary
judgment against plaintiff’s claim under the Freedom of Information Act (5 ILCS 140/7 (West
2006))).
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¶ 46 By relying on these cases, Dedic fails to acknowledge that, although the bench trial was
sped along by stipulations, it was a trial, not a summary judgment proceeding, and that the
judge then weighed the evidence, particularly the conflicting reports and testimony of the
experts, before determining whether the facts came within either of the two statutory
exceptions.
¶ 47 The trial judge’s task was to make factual findings to determine whether the deterioration
of the balconies posed an immediate danger to life, health, safety, or property so as to satisfy
the “emergency” exception and to determine whether the repairs recommended by Naso’s
engineering firm otherwise came within the “mandated by law” exception, such that the
condominium unit owners were not entitled to vote to reject the special assessment. Thus, the
de novo standard is inapplicable. In these circumstances, our role is to determine whether the
judge’s findings are against the manifest weight of the evidence and whether the judge erred
legally by denying injunctive relief. Hess v. Clarcor, Inc., 237 Ill. App. 3d 434, 450, 603
N.E.2d 1262, 1273 (1992) (when trial judge heard evidence in order to resolve request for
preliminary and permanent injunction, manifest weight standard governed).
¶ 48 With these principles in mind, after a full review of the record and the parties’ arguments,
we find no reason to disturb the trial court’s decision to deny a permanent injunction to Dedic.
The record demonstrates clearly that the railings of 56 of the 90 balconies posed imminent
safety risks to the unit owners and constituted an “emergency” as that word is used in the
condominium declaration and the Act. The record also shows that 80 to 85% of the cost of the
remediation project had to be incurred to address only these 56 most dangerous balconies, with
the remaining 15 to 20% of the cost being incurred for preventative maintenance. The record
also clearly shows that the dangerous conditions did not comply with the local building code
requirement that the balcony railings be capable of withstanding 200-pound point load
pressure. Thus, the balconies not only posed safety risks that constituted an “emergency,” but
also their remediation was “mandated by law.” Therefore, there was no entitlement to a unit
owner referendum on the $1.01 million special assessment.
¶ 49 More specifically, it is undisputed that balconies 407B, 505B, 602B, and 603B suffered
from significant deterioration, which made them an immediate danger to life, health, safety, or
property. The balcony deterioration established in the record included degradation of the
concrete foundation and/or the waterproof membrane due to moisture and other elements,
corrosion, pack rust, or distortion of the steel edge channel that supported the base of the
handrail, and either bowing of the handrail or detached or detaching connections between the
handrail and masonry building due to the use of connectors suitable for drywall but not
masonry. These facts were established by the Board’s expert witness, Naso, through her
structural engineering report, affidavit, and deposition and trial testimony. Naso’s observations
and opinions were bolstered by the various lay witnesses, and they were not disputed by
Dedic’s expert witness, Calamaro. In addition, Dedic conceded in the complaint she filed on
October 27, 2016, that at least some of the balconies were in “need [of] ‘immediate’ repair,”
and she makes similar statements on appeal, such as “there were a few balconies that could
conceivably be classified as emergencies.”
¶ 50 The dangerous conditions, however, were not limited to the first four balconies, which
Dedic conceded were in need of immediate remediation. The record indicates that, because of
the severity of the problems that were documented in the first four balconies, the Board asked
Naso’s firm to expand the inspection to the entire complex. Not every balcony could be
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accessed for a “close up” inspection, but Naso testified that the ground-level observations with
binoculars that were performed were well accepted among structural engineers when viewing
the condition of structures such as the North Shore Towers. Similarly, Calamaro used a camera
from “street level” to “get a general idea” of the condition of some balconies, which he could
not visit personally. All of the North Shore Towers balconies were the same age and made
from the same materials, and what was observed from the ground level was similar to what had
been observed close up. Based on her observations, Naso advised the Board to tell certain unit
owners not to use their balconies, and she advised the Board to begin corrective work. In her
July 2015 report, Naso also documented her concern about the height of the railings and the
wide spacing of the spindles, and the fact that neither of these conditions met the requirements
of the current building code.
¶ 51 Dedic erroneously contends the Board relied on only Naso’s written report before adopting
the special assessment. The record indicates Naso supplemented her written report by meeting
with the Board on several occasions, and by e-mailing with the property management company
that first recommended the use of Naso’s firm. Naso also helped the Board obtain competitive
bids from suitable contractors, and the winning bid would become the basis for the specific
amount of the special assessment. Unit owner Professor Chou, who would have to pay for a
portion of the repair project despite her unit’s balcony being “fine” or “safe,” volunteered to
help the Board understand Naso’s report and give her opinion as a licensed professional
engineer. Chou was given her own copy of Naso’s report. Chou also had the opportunity to
question Naso in person, while the Board was listening, and “cross-examined” Naso about the
details of her study and recommendation. Much of this conversation between the engineers
was “technical” and exceeded the Board’s knowledge of structural engineering concepts and
the potential ways of remediating the balcony defects. Chou was also present when a member
of Naso’s firm came to inspect the professor’s balcony, and Chou posed questions and
observed his investigation techniques. Chou concluded and advised the Board that Naso’s
study and her recommendation were sound. Thus, the record indicates that the Board had
benefit of far more than just Naso’s July 2015 written report when the Board adopted the
special assessment in September 2016.
¶ 52 Calamaro offered his opinion that there was no emergency because the balcony slabs were
not in imminent danger of collapsing from the building, but the trial judge rejected this
conclusion in part because the safety of people who use the railings as load bearing is
addressed in the condominium declaration and the Act. The definition of an emergency in the
declaration and Act includes not only an immediate danger to the structural integrity of the
common elements of the condominium complex, as Calamaro would read the definition, but
also an immediate danger to the life, health, safety, or property of the unit owners. Naso used
her training, experience, and site observations to opine that many of the railings could not
support a 200-pound point load. Both Naso and Calamaro testified that a balcony railing that
was unable to support a 200-pound point load constitutes a safety concern, as someone who
fell against or pushed the railing would not be restrained by the railing and could fall from the
deck to severe injury or even death. Although a deficient railing did not meet Calamaro’s
definition of an emergency, he did agree that a deficient railing was a dangerous condition and
that no one should use a balcony with such an inadequate railing.
¶ 53 Based on Naso’s opinion, attorney Bartell testified that she advised the Board that the
200-pound load-bearing requirement for the railings fell within both the “emergency” and
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“mandated by law” exceptions because the weakened railing posed a safety concern to persons
or property and its remediation was mandated by law. The Board relied on this opinion when it
decided to reject the petition for a unit owner referendum. Again, the undisputed testimony
also indicated the cost to repair just the 56 balconies with documented defects in the deck,
railing, and masonry connectors that constituted emergency conditions was 80 to 85% of the
total cost, which surpassed the 115% threshold. Thus, the manifest weight of the evidence
supported the judge’s conclusion that the special assessment was to address an “emergency”
and conditions that should be remediated as “mandated by law” and that Dedic was not entitled
to an injunction preventing the Board from implementing the special assessment and executing
a repair contract until after unit owners are permitted to vote.
¶ 54 Dedic contends the ruling is flawed for many reasons. First, Dedic contends there was no
emergency because the Board relied on Naso’s report when it adopted the special assessment,
not on Naso’s subsequent affidavit, and the report does not use words like “immediate” or
“unsafe.” However, as discussed above, the record indicates that in addition to the written
report, Naso had multiple conversations with the Board and that they discussed the urgency of
the situation before the Board adopted the special assessment. The Board also had the benefit
of Chou’s opinion, after Chou read the report and questioned Naso about the details and
recommendation. The record also indicates that Naso had e-mail conversations with the
property management company that was assisting the Board in its efforts to prudently and
timely address the condition of the aging balconies.
¶ 55 Dedic contends there was no emergency because no written notice was sent to any unit
owner to warn her or him of the danger nor were any balconies closed off. It is undisputed,
however, that the owners of balconies in the worst conditions were personally contacted by the
property manager and promptly warned about the danger. Dedic does not explain how the
delay and formality of a written warning would be any more indicative of an “emergency” than
these prompt conversations. Board president Erlich testified that the property manager
contacted the unit owners who needed to be warned and that not every unit owner was
contacted because not every balcony “was an emergency.” Attorney Bartell’s letter to Dedic in
October 2016, before Dedic filed suit, included the statement, “[i]t is the opinion of [Naso’s
firm] that a number of the balconies are unsafe for use by the homeowners, and we understand
that the Board has already advised those owners to refrain from using them until the repairs
can be completed.” Moreover, there was no need to warn Dedic because the engineering report
did not suggest there was a problem with Dedic’s balcony, Erlich testified that the condition of
Dedic’s balcony “was not an issue” and “I don’t believe [she has an emergency],” and Dedic
testified that there was “nothing wrong with [her] balcony.”
¶ 56 Dedic also contends there is an inconsistency between the Board’s indication that the
condition of the balconies amounted to an “emergency” and the “glaring failure of the [Board]
to do anything to remediate the balconies in the two years from the date of the report.”
Attorney Bartell testified, however, that the Board’s fiduciary duties required it to use due
diligence in evaluating the engineering report, obtaining competitive bids, and investigating
the possibility of financing for unit owners who could not immediately pay the full amount.
See also 765 ILCS 605/18.4 (West 2014) (stating the powers and duties of a condominium
board of managers). Along these same lines, Dedic points out that no repair work was
undertaken between the July 2015 engineering report and the May 2017 trial date. We reject
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this as an indication that there was no “emergency” because, in addition to the time spent on
the Board’s due diligence, Dedic’s lawsuit was reason for the Board not to proceed.
¶ 57 Dedic next contends the repair schedule shows a lack of urgency because, even though the
low bid was selected in August 2016, the actual repair work was not scheduled to begin until
March 2017. Dedic contends this is an indication the Board acted for convenience and not
urgently. Dedic’s argument, however, relies on only a brief note in the September 2016
meeting minutes that the purpose of the meeting had been “Approval of Special Assessment by
Board for repair of all balconies to commence in or around March 2017 and last up to
approximately 1.5 years.” This brief statement does not convey enough information from
which we could deduce why the Board acted or why the anticipated start date was “in or
around March 2017,” and we reject Dedic’s contention that the schedule indicates a lack of
urgency or inadequate concern about the danger the balconies posed to unit owners.
¶ 58 Finally, Dedic contends none of the repairs were “mandated by law” because there was no
need to meet the updated building code, if only “a certain amount” of repair work was
undertaken. The record indicates that the 200-pound point load was a legal requirement and
that the special assessment was adopted in part to address that legal requirement. Furthermore,
Dedic is mischaracterizing the Board’s motivation for determining that the balcony railings
would be remediated. Dedic cites to Naso’s hearing testimony as to whether the village would
require the railings to be updated in order to conform to the closer spindle spacing and higher
height specified in the current building code. Naso testified that the village confirmed that it
would “not force any kind of upgrade on the balconies as long as the railings were just being
repaired.” Dedic’s argument ignores the ensuing questions and answers. Naso was next asked
whether she was “considering that part, the spaces and heights” when she was forming her
opinion in 2015 about “the safety or danger posed in this case.” Naso answered, “[n]o, we
[were] not,” and she reiterated:
“So [the issue is] not that the railings don’t necessarily meet the code as they are if they
were fully intact and brand new. The issue is that there has been degradation that has
caused harm to the railings themselves. And because of that splitting and corrosion and
section loss, that has reduced the inherent capacity of that portion of the structure.”
In short, the testimony is part of a record that clearly shows that the 200-pound point load was
a legal requirement and that the special assessment was adopted in part to address that legal
requirement.
¶ 59 Again, there is ample support in the record to support the trial judge’s findings and ruling,
and we do not find any of Dedic’s appellate arguments persuasive. The order on appeal is
affirmed.
¶ 60 Affirmed.
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