County of Knox v. Switzer ( 1987 )

JUSTICE STOUDER,

dissenting:

I must respectfully dissent from the opinion reached by my colleagues. An examination of the statutory language as well as the facts of this case leads me to conclude that the county’s petition was sufficient to provide adequate notice to the defendant.

As both parties to this appeal have pointed out, the statute is comprised of two paragraphs. The first, relating to the petitions which a county may file in seeking the demolition or repair of dangerous or unsafe buildings and the second, which deals with the county’s ability to seek an injunction to compel an owner of a building to comply with county health and safety ordinances. The requirement that the county inform the owner of the specific ordinances which their building violates in order to secure an injunction is conspicuously absent from the preceding demolition and repair paragraph.

As a practical consideration, it would be a matter of common sense that if a county were seeking compliance with local ordinances regarding health and safety in a building that may be lacking in certain aspects, then it must state with specificity the ordinance -with which the building does not comply in order to alert the owner of what repairs must be effected. However, as in this case, where a building has been totally or partially destroyed by fire, notice as to every minimum standard violation could be so extensive that the petition for demolition would be voluminous.

There seems to be little argument that the statute is not clearly drafted. As pointed out by the county, similar provisions are contained in sections 11 — 31—1 and 11 — 31—2 of the Illinois Municipal Code. (Ill. Rev. Stat. 1985, ch. 24, pars. 11 — 31—1, 11 — 31—2.) The first paragraph of the statute in question is contained, essentially identical in substance, in section 11 — 31—1 and the second smaller paragraph, also essentially the same in substance, is contained in section 11 — 31— 2.

No help is gleaned from examining the cases decided under section 11 — 31—1 to determine if actual notice of ordinance violations is required to establish a sufficient pleading. However, it is interesting to note that there is no reference in either section 11 — 31—1 or section 11 — 31—2 which would require the specific ordinance notice required under section 11 — 31—2 to be utilized in framing a petition under section 11 — 31—1. An identical situation exists in regard to the two paragraphs of the statute in question on this appeal. There is no mention that the requirements for an injunction are necessary for a petition for demolition, and absent such a directive by the legislature, we should be loathe to read in such a requirement.

Additionally, I find no merit in the defendant’s assertion that the petition contains statements of conclusion rather than allegations of fact. The majority has correctly stated the rule that, on appeal, all well-pleaded facts are presumed true and all reasonable inferences are drawn in the plaintiff’s favor to ascertain whether any set of facts could warrant recovery. (Katz v. Belmont National Bank (1984), 130 Ill. App. 3d 1094, 475 N.E.2d 543.) The county’s petition stated that the house had been destroyed by fire and that no effort had been made to put it in a safe and clean condition. The petition also set out the 15-day statutory notice requirement and that the defendant had failed to commence proceedings to either repair or demolish the building. On this basis, I am hard pressed to conclude that the county’s assertions in their petition constitute a conclusion and not an allegation of fact.

Finally, I find it difficult to accept the defendant’s argument that the county’s petition was unsupported by specific factual allegations since the defendant was able to draft both a motion to dismiss and his affirmative pleadings from the information supplied via the petition for demolition.

Therefore, I would reverse the decision of the trial court and remand the case for trial.