McIlvaine v. The City of St. Charles

2015 IL App (2d) 141183No. 2-14-1183
Opinion filed September 23, 2015
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
CLIFFORD J. McILVAINE, ) Appeal from the Circuit Court
) of Kane County.
Plaintiff-Appellant, )
)
v. ) No. 14-ED-35
)
THE CITY OF ST. CHARLES, ) Honorable
) David R. Akemann,
Defendant-Appellee. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE ZENOFF delivered the judgment of the court, with opinion.
Presiding Justice Schostok and Justice Spence concurred in the judgment and opinion.
OPINION
¶1 Plaintiff, Clifford J. McIlvaine, appeals from an order of the circuit court of Kane County
dismissing with prejudice his complaint against defendant, the City of St. Charles (City). The
complaint attempted to state causes of action for inverse condemnation, violation of due process,
and property damage. McIlvaine generally alleged that the City physically invaded his property
under the guise of making repairs by installing a shingle roof that he did not want or authorize.
The suit was consolidated in the trial court with No. 10-CH-881, an action by the City seeking to
repair certain code violations at McIlvaine’s residence. We affirm.
¶2 I. BACKGROUND
2015 IL App (2d) 141183¶3 McIlvaine is the beneficial owner of real property at 605 Prairie Street in St. Charles,
Illinois. The property is improved with a residence. On August 5, 1975, the City issued
McIlvaine a building permit for the construction of a garage. On May 19, 1976, McIlvaine
obtained another building permit for remodeling and the construction of an addition to the
residence. As of 2013, McIlvaine had not completed either project.
¶4 In 2010, the City filed suit to declare the building permits null and void and to compel
McIlvaine to complete construction in accordance with the City’s code. On August 2, 2011,
McIlvaine and the City entered into a “consent decree & order.” After McIlvaine failed to
complete construction pursuant to the terms of the consent decree, the City sought a court order
pursuant to section 11-31-1 of the Illinois Municipal Code (Code) (65 ILCS 5/11-31-1 (West
2010)) to repair the premises.
¶5 At the hearing on the City’s application for a repair order, the City presented the
following evidence regarding the roof. Bob Vann was the City’s building and code
enforcement division manager. In his last 20 years in that job, he had been unsuccessful in
securing McIlvaine’s compliance with the City’s code. The City was never able to determine
whether the roofing materials met the code. The roof, which was covered by a rubber
membrane, also presented a safety issue. Vann testified that there was improper flashing along
the chimney and that the covering was not secured and therefore could blow off the roof. Water
could get in between the roof and the walls, penetrating the interior and leading to deterioration
and mold. City inspectors had seen animal tracks on the roof and animals entering through the
east eave.
¶6 Lieutenant Brian Byrne of the fire prevention unit of the St. Charles fire department
noted that the rubber membrane covering the roof was not fastened properly. Because the
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2015 IL App (2d) 141183membrane covered the roof, it would be difficult for a firefighter to ventilate the structure.
Byrne did not know what type of rubber membrane it was or how it might react to flames.
¶7 Contractor James Webb testified for McIlvaine. He had volunteered to help McIlvaine
finish installing the roof, but he had failed to do so. Webb testified that the roof was a
one-of-a-kind, specialty design. In 50 years of experience, Webb had never seen or installed a
roof like it. It could be installed only when the temperature reached 50 degrees, and over the
past two seasons the weather had not cooperated. Webb also testified that the roof was difficult
to install. On cross-examination, Webb acknowledged that the consent decree provided for a
traditional roof to be installed if McIlvaine failed to timely submit plans for the unique roof.
Webb further testified that a rubber membrane was not supposed to be used on a roof with a
pitch as steep as McIlvaine’s.
¶8 In argument following the evidence, the City emphasized that it was not seeking to
demolish the structure. Rather, it intended to finish the building according to code so that it
could issue an occupancy permit. The City informed the court that it would install a
“conventional roofing system.” The court found that the condition of the property was unsafe
and dangerous. However, the court cautioned that permission to remediate did not extend to
“aesthetic issues.”
¶9 It is undisputed that the City installed a traditional shingle roof. McIlvaine alleged in
the complaint that the City disassembled and discarded the partially installed components of his
unique roof. The City filed a combined section 2-615 and section 2-619 motion to dismiss
McIlvaine’s complaint. 735 ILCS 5/2-615, 2-619, 2-619.1 (West 2012). The court granted
the section 2-615 motion to dismiss with prejudice and then granted the City’s motion for Rule
304(a) language. Ill. S. Ct. R. 304(a) (eff. Feb. 26, 2010). McIlvaine filed a timely appeal.
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2015 IL App (2d) 141183¶ 10 II. ANALYSIS
¶ 11 The issue is whether the City’s repair using a shingle roof was within its police powers or
was instead a “taking” under article I, section 15, of the Illinois Constitution of 1970 (Ill. Const.
1970, art. I, § 15). Article I, section 15, provides that “[p]rivate property shall not be taken or
damaged for public use without just compensation as provided by law. Such compensation
shall be determined by a jury as provided by law.” Ill. Const. 1970, art. I, § 15. McIlvaine
concedes that section 11-31-1 of the Code permitted the City to make repairs, but he contends
that his complaint states a cause of action, because the City exceeded the scope of the court’s
order by demolishing his unique roof.
¶ 12 Initially, we address the City’s argument that we should resolve this appeal under section
2-619(a)(9) of the Code (735 ILCS 5/2-619(a)(9) (West 2012)) pursuant to the appellate court’s
authority to affirm on any basis appearing in the record. See Beacham v. Walker, 231 Ill. 2d 51,
61 (2008) (the appellate court can affirm the judgment of the circuit court on any basis it finds in
the record). The City argues that McIlvaine forfeited his claim that the installation of a
traditional roof was a taking by not raising it at the hearing on the City’s application for the
repair order. McIlvaine responds that he had no reason to raise the issue then, because the
City’s notice under section 11-31-1 did not include notice that the City would demolish the
partially installed unique roof.
¶ 13 Section 2-619(a)(9) provides for involuntary dismissal of a complaint where the
plaintiff’s action is “barred by other affirmative matter avoiding the legal effect of or defeating
the claim.” 735 ILCS 5/2-619(a)(9) (West 2012). Here, the City argues that forfeiture is
“other affirmative matter.” “[A]ffirmative matter” is “ ‘in the nature of a defense that negates
the cause of action completely or refutes crucial conclusions of law or conclusions of material
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2015 IL App (2d) 141183fact contained in or inferred from the complaint.’ ” Chicago Title Insurance Co. v. Aurora
Loan Services, LLC, 2013 IL App (1st) 123510, ¶ 11 (quoting In re Estate of Schlenker, 209 Ill.
2d 456, 461 (2004)). A forfeiture is the failure to make a timely assertion of a right. See
People v. Blair, 215 Ill. 2d 427, 444 n.2 (2005). The right that McIlvaine asserted in his
complaint is the constitutional right against the taking of his property for public use without just
compensation. As the alleged taking had not occurred when the hearing on the City’s
application for repair took place, McIlvaine could not have forfeited the right by failing to raise
the issue at that time.
¶ 14 We turn now to McIlvaine’s contention that dismissal under section 2-615 was improper.
A section 2-615 motion to dismiss attacks the legal sufficiency of a complaint based on defects
that are apparent on its face. Estate of Powell v. John C. Wunsch, P.C., 2013 IL App (1st)
121854, ¶ 15. A section 2-615 motion to dismiss should be granted only when it is apparent
that no set of facts can be proved that would entitle the plaintiff to relief. Powell, 2013 IL App
(1st) 121854, ¶ 15. The court accepts as true all well-pleaded facts and all reasonable
inferences to be drawn from those facts. Powell, 2013 IL App (1st) 121854, ¶ 15. We review
de novo the grant of a section 2-615 motion to dismiss. Powell, 2013 IL App (1st) 121854,
¶ 15.
¶ 15 McIlvaine attempted to allege three distinct causes of action arising from the City’s
replacement of his unique roof. However, if the City’s conduct was authorized under section
11-31-1, then McIlvaine has no cause of action, however he chooses to couch it. The purpose
of section 11-31-1 is to abate a public nuisance. Village of Lake Villa v. Stokovich, 211 Ill. 2d
106, 125 (2004). Although section 11-31-1 interferes with how a property owner chooses to
use his land, a property owner does not have a right to allow his property to fall into such
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2015 IL App (2d) 141183disrepair as to create a public health and safety risk. Stokovich, 211 Ill. 2d at 125.
Constitutional rights pertaining to private property are subordinate to the police power.
Sherman-Reynolds, Inc. v. Mahin, 47 Ill. 2d 323, 328 (1970). “[A]n exercise of police power to
prevent a property owner from using his property so as to create a nuisance or a risk of harm to
others is not a ‘taking’ in the constitutional sense.” Stokovich, 211 Ill. 2d at 130. McIlvaine
does not dispute the court’s finding that the roof presented a safety risk or that the City could
exercise its police power to abate the risk of harm the unsafe roof posed. He objects only to the
manner in which the City remediated the problem and seeks compensation for his alleged
damages.
¶ 16 The complaint alleged that the City “tore out major components” of the partially
completed unique roof. It is clear from McIlvaine’s brief that he is equating that alteration with
the demolition of a structure. Section 11-31-1 addresses the “demolition, repair, or enclosure of
dangerous and unsafe buildings or uncompleted and abandoned buildings” within the territory of
the municipality. 65 ILCS 5/11-31-1 (West 2012). McIlvaine asserts that the City demolished
his unique roof without following the statutory procedural safeguards pertinent to the demolition
of buildings. Section 11-31-1 requires two findings before the court can order demolition: (1)
that the building is dangerous and unsafe and (2) that the building is beyond reasonable repair.
Stokovich, 211 Ill. 2d at 131. The second finding must be based on a comparison of the cost of
repair with the value of the building. Stokovich, 211 Ill. 2d at 131. Demolition is justified
only where repair makes so little economic sense that it is unlikely that an owner would seize
any further opportunity to repair. Stokovich, 211 Ill. 2d at 131.
¶ 17 The issue in the present case is whether these safeguards apply to the demolition of less
than the entire structure. The best indication of legislative intent is the language of the statute.
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2015 IL App (2d) 141183Metropolitan Life Insurance Co. v. Hamer, 2013 IL 114234, ¶ 18. The statutory language must
be given its plain and ordinary meaning. Hamer, 2013 IL 114234, ¶ 18. It is improper for a
court to read exceptions, limitations, or conditions into the statute that conflict with clearly
expressed legislative intent. Hamer, 2013 IL 114234, ¶ 18. Here, the statute’s plain language
applies to the demolition of buildings, not the individual components. “[T]he plain
implication” of the statute is that “only in cases where the structure is substantially beyond repair
is an order for demolition contemplated.” (Emphasis added.) City of Aurora v. Meyer, 38 Ill.
2d 131, 137 (1967). Consequently, McIlvaine’s reliance on Meyer and other cases involving
the demolition of buildings is misplaced.
¶ 18 The court’s order, which is incorporated into the complaint, undisputedly permitted the
repair of the unsafe roof. A “repair” is the “restoration to a state of soundness, efficiency, or
health.” Webster’s Third New International Dictionary 1923 (1993). McIlvaine suggests that
the City was authorized only to tack the membrane into place and redo the defective flashing.
However, that alone would not place the roof into a state of “soundness, efficiency, or health.”
Basically, the structure would still be without a functioning roof. The police power is not
limited to the remediation of dangers that imperil the public generally, but extends even to
dangers, such as the risk of flood damage to a home or structural defects, that affect only those
directly connected to the property. Village of Ringwood v. Foster, 405 Ill. App. 3d 61, 73-74
(2010).
¶ 19 Nor was the City required to repair the roof by installing McIlvaine’s unique materials.
According to McIlvaine’s complaint, his unique roof would be constructed using “sprayed-on
fiberglass resin” over the wood. The top of the roof would be metal panels. Polyurethane
foam would be sandwiched between the fiberglass resin and the metal panels. Section 11-31-1
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2015 IL App (2d) 141183is intended to give a municipality an effective tool for protecting citizens from substandard and
dangerous housing. City of Chicago v. Nielsen, 38 Ill. App. 3d 941, 944 (1976). For that
reason, a reasonable, as opposed to a strict, interpretation of the statute is required. Nielsen, 38
Ill. App. 3d at 944. Compelling the City to install a one-of-a-kind novelty roof would not be an
effective means of accomplishing the needed repairs or be consistent with a reasonable
construction of the statute. McIlvaine cites no authority for the proposition that repairs under
section 11-1-31 must be made according to the owner’s dictates and tastes.
¶ 20 Having determined that the City was authorized by section 11-31-1 and the court’s order
to repair the roof by installing a shingle roof, we reject McIlvaine’s contention that the
installation of the shingles and the disassembly of his partial unique roof was an unconstitutional
taking. Thus, McIlvaine’s reliance on “Takings Clause” jurisprudence is misplaced. We
agree with the trial court that the complaint failed to state any cause of action. Accordingly, the
court properly dismissed McIlvaine’s complaint with prejudice.
¶ 21 III. CONCLUSION
¶ 22 The judgment of the circuit court of Kane County is affirmed.
¶ 23 Affirmed.
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