Dedic v. Board of North Shore Towers Condominium Association ( 2018 )

2018 IL App (1st) 171842FIRST DISTRICT
FOURTH DIVISION
May 17, 2018
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SELMA DEDIC, )
) Appeal from
Plaintiff-Appellant, ) the Circuit Court
) of Cook County
v. )
) 16-CH-14099
BOARD OF NORTH SHORE TOWERS CONDOMINIUM )
ASSOCIATION, ) Honorable
) Diane Joan Larsen,
Defendant-Appellee. ) Judge Presiding
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
1
Dedic has consistently omitted the word “Towers” when referring to the Board, the
condominium association, and the condominium complex. We have used the names that appear in the
condominium declaration.
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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
Association for a specific purpose including, without limitation, to make additions,
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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
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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 [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
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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,
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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
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,
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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
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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 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
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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
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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 followup 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
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
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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
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(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 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
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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
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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
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
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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
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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 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
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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
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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 “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
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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.
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¶ 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 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 followup
questions. Chou disagreed with the statement, “you don’t mind paying the amount you were
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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 North Shore
Towers 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
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elements, but the North Shore Towers declaration was not written that way.
¶ 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
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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))).
¶ 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
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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
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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 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
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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
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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
“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,
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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
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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 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
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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
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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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