City of Herrin v. Horner

2021 IL App (5th) 200200-UNOTICE
NOTICE
Decision filed 03/29/21. The
This order was filed under
text of this decision may be NO. 5-20-0200
Supreme Court Rule 23 and is
changed or corrected prior to
not precedent except in the
the filing of a Petition for IN THE limited circumstances allowed
Rehearing or the disposition of
under Rule 23(e)(1).
the same.
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
______________________________________________________________________________
THE CITY OF HERRIN, an Illinois Municipal ) Appeal from the
Corporation, ) Circuit Court of
) Williamson County.
Plaintiff-Appellee, )
)
v. ) No. 19-MR-239
)
JOSH HORNER, UNKNOWN OWNERS, and )
NONRECORD CLAIMANTS, )
)
Defendants ) Honorable
) Jeffrey A. Goffinet,
(Josh Horner, Defendant-Appellant). ) Judge, presiding.
______________________________________________________________________________
JUSTICE VAUGHAN delivered the judgment of the court.
Presiding Justice Boie and Justice Cates concurred in the judgment.
ORDER
¶1 Held: Trial court’s grant of demolition order to plaintiff was against the manifest weight
of the evidence where the trial court failed to establish the actual cost of repair
and the basis of plaintiff’s evidence was insufficient to support its claim that the
buildings were beyond reasonable repair.
¶2 Defendant, Josh Horner, appeals the circuit court’s order authorizing the City of Herrin
(City) to demolish defendant’s buildings pursuant to section 11-31-1(a) of the Illinois Municipal
Code (Code) (65 ILCS 5/11-31-1(a) (West 2018)). On appeal, Horner contends the trial court’s
order was in error because the circuit court failed to establish the cost of repair, rendering the
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court’s subsequent conclusions, that the buildings were beyond reasonable repair and should be
demolished, against the manifest weight of the evidence. For the following reasons, we reverse.
¶3 I. Background
¶4 On June 21, 2019, the City mailed notice to Horner demanding he repair or demolish,
within 15 days, two buildings, comprised of a two-story house and detached garage, located on his
property at 1212 W. Tyler Street in Herrin, Illinois. Sixteen days later, on July 9, 2019, the City
filed a complaint seeking authorization, pursuant to section 11-31-1 of the Code, to demolish the
two structures.
¶5 On August 28, 2019, at the City’s request, Christopher Whiting and Steven Sims, a
structural engineer and licensed architect, respectively, inspected the property. Whiting prepared
a report dated September 4, 2019, listing the structural issues found in regard to the buildings.
Sims issued a report on September 23, 2019, providing an architectural and mechanical assessment
of the buildings. Sims also prepared an estimate, based on both reports, stating the cost to bring
the buildings up to code was $63,197.
¶6 The case proceeded to a bench trial on January 8, 2020. The City and Horner stipulated
that the property’s value was $69,030, based on the most recent property tax bill.
¶7 Robert Craig, the Herrin code administrator, testified that he prepared the notice issued to
Horner after receiving complaints and personally viewing the subject property. He was familiar
with the definitions of “dangerous buildings” contained within the City’s ordinance 1 and opined
that Horner’s property met all four definitions found therein. Craig further testified that he was
familiar with section 5-2-9 of the ordinance 2 which addressed Herrin’s fire limits. Craig opined,
1
Rev. Code of Ordinances of Herrin, Illinois, Art. II, § 5-2-6 (2018).
2
Rev. Code of Ordinances of Herrin, Illinois, Art. II, § 5-2-9 (2018).
2
under this ordinance, the subject property “should be demolished,” because it had “been damaged
by decay or other causes to an extent greater than 50 percent of its value.” He agreed no other
options were available stating, “I don’t believe repairing it would be an option *** demolish, I
believe is the only option that we have available at this time.”
¶8 Sims testified about the deficiencies he found with the buildings and opined the property
met three of the four Herrin ordinance definitions of a dangerous building. After discussing the
interior and exterior issues, Sims confirmed that his cost estimate represented all of the necessary
repairs to bring the property up to code. He estimated it would take two to three months to obtain
the bids and perform the necessary repairs. He further opined that bringing the building up to code
and making it safe would cost more than $35,000. His opinion was based on the required repairs
and alterations to meet code, the cost of materials, and use of a prevailing wage rate for labor. Sims
conceded he did not contact any private contractors to estimate the costs and that his estimate was
based on “prevailing wage” rates for labor. He agreed the amount of labor would be less if the
owner fixed it himself and that a lot of the estimate cost was labor. He agreed the building could
be repaired and confirmed that, if the repairs were made, the building could be occupied.
¶9 Whiting testified about the structural deficiencies found on the property and opined that
bringing the property up to structural code would cost more than $35,000. He agreed that he did
not advise that the property should be demolished. With regard to the garage, Whiting stated he
did not know if the cost to repair the garage was more than the cost of demolition because he did
not run those numbers.
¶ 10 Horner testified that he prepared an estimate based on the deficiencies found by Whiting
and Sims. His estimate was based on repairing the property himself unless something was above
his skill level. In those instances, he planned to rely on friends knowledgeable in construction or
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hire contractors. Horner admitted he did not have experience repairing all the items that needed
repaired and that he did not have any certificates, specialties, or licensure in structural engineering.
His estimate included only the cost of materials, which overestimated the necessary materials, and
conversations with other people who worked at Casey Rental, including Jerry Borum, who was a
construction contractor for 30 years, and Ed Bachelor, who worked at Casey Rentals a long time.
Horner stated he did not know the extent of the items that needed fixed until he received a copy of
the City’s inspection in October 2019. Horner could “get started immediately” performing repairs
and would also request help from his brother who is in the business and people from Casey Rentals.
He could do repairs on the weekends and occasionally during the day. His estimate did not include
labor because those people were friends and family.
¶ 11 Jerry Borum, who performed residential and commercial contracting for 36 years,
personally inspected the property and reviewed the City’s reports and cost estimate. He explained
that prevailing wages were for government or state level jobs and confirmed he would not charge
Horner for labor; the cost was solely for materials. Borum believed the City’s costs were
exaggerated and addressed the discrepancies. For example, he disagreed that the entire roof needed
to be demolished and replaced because only a two-foot square portion needed repaired. The
remainder of the roof was solid. That cost, along with the insulation board and new decking, would
be between $600 and $700. He agreed that some of the flooring needed replaced but stated the
subfloors were fine. He believed that $3562 to repair drywall, mud, tape, sand and paint holes was
a little excessive and opined those repairs could be accomplished for $400. He also disagreed that
$1739 was required to sand and repaint the windows and exterior doors. Borum believed the repairs
could be accomplished for between $24,000 and $25,000 and classified the City’s $63,915.87
4
estimate as “excessively high.” He stated he would be able to help Mr. Horner fix the house on
weekends and occasionally after he got off work during the week.
¶ 12 In closing, the City argued that the building was dangerous and unsafe and the costs to
make all necessary repairs far exceeded the value of the property. It stated the standard typically
used to determine economic feasibility was “about 50 percent of the value of the property.” The
City agreed that its estimate used “prevailing wage” and that such wage only applied to public
building construction but argued that reducing the cost estimate from prevailing wages to regular
wages would not “diminish the repair cost enough to make this property repairable in an economic
manner.”
¶ 13 Horner disagreed that the property was unsafe and dangerous and that the buildings should
be demolished, stating, “we don’t agree that the tactic of bringing in entities to put out a cost sheet
that in is no way representative of what a contractor would charge, and then say ‘Well, that’s over
50 percent of the value of the property’ (snapped fingers) Bam! *** we’ve got to tear it down.”
¶ 14 The court noted that half the fair cash value was about $34,000 and agreed that while
anything was possible if enough money was thrown at it, the issue was whether it was
“economically feasible.” Addressing that issue, the court noted that the only way Horner’s estimate
came in under “half the value” was if the work performed was free. The court confirmed this by
asking Horner, “But his estimate—the only way it comes in under 30,000 or 34,000 even, is there’s
no labor charges, correct?” Horner agreed.
¶ 15 The court also noted Borum’s testimony that found the City’s estimate too high and
Horner’s estimate too low. Horner said that $34,000 was where they were at and that was “basically
what it would be if we’re in the middle.” The court responded by saying, “So right at 50 percent
—in between the two is right at 50 percent of the value.” Horner agreed, stating:
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“And we’re talking *** in the code she’s referring to, *** it’s over 50 percent of the value
of the property where we start having trouble.
So if we quantify it at half of what they say it *** costs to be repaired, we’re still at
less—at 50 percent or less, and some things might be bidded out and be done for less.
***
So, basically, *** one of those things that what we’re arguing about here is whether
the cost to repair this structure exceeds 50 percent of the value. *** [I]f it exceeds 50
percent of the value under the municipal code, it should be demolished.”
Horner concluded by stating, “the only issue here is whether or not the cost to repair is going to
exceed that percentage, and that’s all.”
¶ 16 On January 14, 2020, the court issued its order finding the testimony of Sims and Whiting
more credible and persuasive regarding the damage to the house and garage. After noting evidence
of rodents, sewer gas, standing water, water infiltration, water penetration, various openings in the
home, a lack of footings, and rot, the court found the house and garage were dangerous and unsafe.
It then turned to the issue of reasonable repair, adopting the stipulated property value of $69,030.
The court noted that if it accepted the City’s estimate outright, it would not be reasonable to repair
given the property value but if it accepted Horner’s estimate, it would be reasonable to allow for
repairs. The court agreed that the prevailing wage rate unfairly increased the cost for residential
repair but found Horner’s estimate was not credible. The court also expressed concern over
Horner’s ability to bring the buildings up to code along with Borum’s ability to accomplish a
substantial remodel in a reasonable time frame while working his regular job at Casey Rentals.
The court also questioned Horner’s qualifications to provide the estimate. The court stated, “While
neither estimate was perfect, the Court finds it is reasonable to believe that the cost would be far
6
closer to the City’s estimate than the Defendant’s estimate.” The court found the City met its
burden and the expert testimony and photos supported its findings that the buildings were unsafe,
dangerous, and unreasonable to repair. Thereafter, the trial court ordered demolition of the house
and outbuilding.
¶ 17 Horner filed a motion to reconsider on February 13, 2020, arguing that reliance on the
City’s estimate was inaccurate because it was based on prevailing wage and that Borum’s estimate
was accurate. The argument was supported with a printout of the Williamson County prevailing
wage rates, copies of estimates from four contractors regarding the work Horner could not
complete on his own, as well as a receipt for some of the materials. After recalculating the
estimates, Horner argued, “The cost of repair is closer to the estimate of Jerry Borum than of the
Architect’s Opinion of Probable Cost and is below the 50% threshold found in the City of Herrin
municipal code.” The City objected to Horner’s motion.
¶ 18 On June 10, 2020, the trial court denied the motion, finding Horner made no showing that
the evidence had not yet been discovered or was otherwise unobtainable at the initial hearing.
Defendant timely appealed.
¶ 19 II. Analysis
¶ 20 On appeal, Horner contends that the circuit court’s demolition order was in error because
the experts agreed the buildings were repairable and the trial court failed to provide an actual value
for the cost of repair.
¶ 21 Section 11-31-1 of the Code allows for the demolition of dangerous and unsafe buildings.
65 ILCS 5/11-31-1 (West 2018). Our courts require two findings: (1) that the building is dangerous
and unsafe and (2) that the “the structure is substantially beyond repair.” City of Aurora v. Meyer,
38 Ill. 2d 131, 137 (1967). The latter finding “must be based on a comparison of the cost of repair
7
with the value of the building.” Village of Lake Villa v. Stokovich, 211 Ill. 2d 106, 131 (2004). The
Code contemplates repairs when feasible and demolition when the state of deterioration is such
that repairs would amount to substantial reconstruction. City of Aurora, 38 Ill. 2d at 135. “There
is a strict policy in Illinois not to order demolition of buildings unless the structure is substantially
beyond repair, and courts granting demolition decrees are required to specify the defects which
render the building dangerous and unsafe.” Schwartz v. City of Chicago, 21 Ill. App. 3d 84, 95-96
(1974). The statute implies that, if the property can be repaired with comparatively little expense,
the city ought to adopt this course rather than complete demolition. City of Aurora, 38 Ill. 2d at
137. “[O]nly in cases where the structure is substantially beyond repair is an order for demolition
contemplated.” Id. In demolition cases, courts “should find from the evidence what the specific
defects are which render the building dangerous and unsafe.” Id. If those defects “may readily be
remedied by repair, demolition should not be ordered without giving the owners a reasonable
opportunity to make repairs.” Id. “The gist of City of Aurora is that demolition is justified only if
repair makes so little economic sense that it is unlikely that an owner would make use of any
further opportunity to repair.” Village of Lake Villa, 211 Ill. 2d at 131.
¶ 22 On review, we look to determine whether the trial court’s findings were against the
manifest weight of the evidence. Village of Ringwood v. Foster, 405 Ill. App. 3d 61, 74 (2010).
“A finding is against the manifest weight of the evidence only if the opposite conclusion is clearly
evident or if the finding itself is unreasonable, arbitrary, or not based on the evidence presented.”
(Internal quotation marks omitted.) Id. at 74-75.
¶ 23 The trial court found the City met its burden by proving: (1) the buildings were dangerous
and unsafe and (2) beyond reasonable repair. Nothing in Horner’s brief contends that the trial
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court’s initial finding was erroneous. As such, our review is limited to determining whether the
evidence supported the trial court’s finding that the building was beyond reasonable repair.
¶ 24 The value of the property, $69,030, was not in dispute. Conversely, the cost to repair ranged
from Horner’s estimate of $21,185 to the City’s estimate of $63,915. The trial court did not accept
either estimate, finding neither was “perfect.” The court noted the City’s use of the prevailing wage
for labor as well as Horner’s failure to include any labor costs despite not being able to perform
all the required repairs himself.
¶ 25 As such, the issue becomes whether the trial court’s finding that “it [was] more reasonable
to believe that the cost would be far closer to the City’s estimate than the Defendant’s estimate”
was supported by the record. While Horner submitted evidence regarding the prevailing wage with
his motion for reconsideration, the trial court denied the motion finding that defendant failed to
show the newly discovered evidence existed before the initial hearing but had not yet been
discovered or was otherwise unobtainable. 3 The only other evidence regarding “prevailing wage”
was testimony confirming that a “prevailing wage” rate was higher than the “regular wage” rate.
We note, however, that even if the prevailing rates and regular rates appeared in the record, the
City’s estimate failed to include the number of hours appropriated to each repair in order to
recalculate the estimate using the “regular rate.”
¶ 26 “[E]vidence comparing repair cost to value” (Village of Lake Villa, 211 Ill. 2d at 131 (citing
City of Aurora, 38 Ill. 2d at 136)) is required to determine if a building is substantially beyond
reasonable repair. Just as the “current value of the building” was necessary to make such a finding
in Village of Lake Villa (id.), the repair cost must also be known. The City admitted its repair cost
3
Horner provided no argument, or citation to authority, related to the trial court’s disposition of the
motion. The order is simply mentioned in a footnote on the last page of the brief. Therefore, Horner forfeited
the issue, and we need not consider it. See Ill. S. Ct. R. 341(h)(7) (eff. May 25, 2018).
9
was inaccurate due to using “prevailing wage” rates. While the City argued that reducing the cost
estimate from prevailing wages to regular wages would not “diminish the repair cost enough to
make this property repairable in an economic manner,” there was no evidence submitted to support
the contention. Therefore, we review the remaining evidence to determine if that material supports
the trial court’s statement and reliance on the Herrin ordinance.
¶ 27 Herrin’s code administrator testified that he was familiar with section 5-2-9 of the
ordinance which addressed Herrin’s fire limits and opined that the subject property had “been
damaged by decay or other causes to an extent greater than 50 percent of its value.” He stated the
remedy for such building was “[t]hat it should be demolished.” No other options were available.
He stated, “I don’t believe repairing it would be an option. *** [D]emolish, I believe is the only
option that we have available at this time.”
¶ 28 A copy of the Herrin ordinance was admitted into evidence and contained the fire limit
boundaries addressed by Craig. Section 5-2-2 stated:
“That all that part of the City within the following described boundaries is hereby
designated to be the fire limits of the City, namely: Beginning at the corner of North 17th
and West Tyler Streets and from thence along Tyler Street to its intersection of North 12th
Street; thence South along 12th Street, to its intersection with East Maple Street; thence
West along Maple Street to South 17th Street; thence along North 17th Street to the Place
of Beginning.” Rev. Code of Ordinances of Herrin, Illinois, Art. II, § 5-2-2 (2018).
¶ 29 Reliance on a city ordinance to determine whether a building is beyond reasonable repair
is proper (Village of Ringwood, 405 Ill. App. 3d at 79-80); however, we find no evidence in the
record establishing that Horner’s property was located within Herrin’s fire limit boundaries.
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¶ 30 While the record contains no map of the area, “an appellate court may take judicial notice
of matters not previously presented to the trial court when the matters are capable of instant and
unquestionable demonstration.” Boston v. Rockford Memorial Hospital, 140 Ill. App. 3d 969, 972
1986) (citing May Department Stores Co. v. Teamsters Union Local No. 743, 64 Ill. 2d 153, 159
(1976)). Our supreme court has held that the “extension of the doctrine of judicial notice to include
facts which, while not generally known, are readily verifiable from sources of indisputable
accuracy is an important aid in the efficient disposition of litigation, and its use *** is to be
commended.” People v. Davis, 65 Ill. 2d 157, 165 (1976). This includes taking judicial notice of
the locations of streets, the distance between them (Dawdy v. Union Pacific R.R. Co., 207 Ill. 2d
167, 177-78 (2003); People v. Rojas, 359 Ill. App. 3d 392, 409 n.9 (2005)), as well as information
acquired from mainstream Internet sites such as MapQuest and Google Maps. See Hoskin v. Union
Pacific R.R. Co., 365 Ill. App. 3d 1021, 1023-25 (2006); People v. Stiff, 391 Ill. App. 3d 494, 503-
04 (2009).
¶ 31 We take judicial notice of a map containing both the Herrin fire limit boundaries and
Horner’s property. (See map labeled as Appendix in paragraph 40 of this decision.) The map
reveals that Horner’s property does not lie within Herrin’s fire limit boundaries. As such, the
Herrin ordinance, which deemed it “unlawful to repair any existing frame building within the fire
limits after the same has been damaged by any cause to fifty percent (50%) of its value,” was
inapplicable.
¶ 32 Considering the arguments presented, in conjunction with the trial court’s statements at the
hearing, we find that Herrin’s ordinance was the crux of the City’s case. As such, we infer that the
trial court’s statement that it was “reasonable to believe that the cost would be far closer to the
City’s estimate than the Defendant’s estimate” can only relate to the 50% demolition requirement
11
found in Herrin’s ordinance. As such, the trial court’s finding that it was not economically feasible
to repair the buildings was not supported by the record and is against the manifest weight of the
evidence.
¶ 33 The City also argues that repair was not only unreasonable due to economic infeasibility,
but also due to the uncertain and presumably prolonged timeline for repair by Horner. Although
no citation was provided to support the argument, we find support for the contention in Village of
Ringwood v. Foster, 2013 IL App (2d) 111221, which declined to limit findings of unreasonable
repair solely on the basis of cost. Village of Ringwood, 405 Ill. App. 3d at 79 (“[W]e do not interpret
the supreme court’s statement as precluding a finding that repairs may be unreasonable for some
reason other than cost.”). However, the basis for unreasonable repair in Village of Ringwood was
not a lengthy time to repair, but an ordinance barring repair in cases where the repair was greater
than 50% of the property’s value. Id.¶ 34 We note our supreme court’s interpretation of the Code considered “readily” repairable
issues; however, that same court stated:
“Although not expressed in so many words, the plain implication of the act involved
here is that if the property can be repaired with comparatively little expense the city ought
to adopt this course rather than complete demolition, that only in cases where the structure
is substantially beyond repair is an order for demolition contemplated. There are many
kinds of deficiencies which would render a building dangerous and unsafe, but which can
readily be obviated by appropriate repairs. Inadequate wiring, or a weakened supporting
beam as in the case at bar, even if serious enough to sustain a finding that the structure is
dangerous and unsafe, would not in many cases warrant complete destruction. The cost of
repairs may well be a small fraction of the building’s value. The court should find from the
12
evidence what the specific defects are which render the building dangerous and unsafe. If
they are such as may readily be remedied by repair, demolition should not be ordered
without giving the owners a reasonable opportunity to make the repairs.” City of Aurora,
38 Ill. 2d at 137.
¶ 35 In the case at bar, while the evidence revealed numerous code violations, none of the
experts testified that the buildings could not be timely repaired. Based on the City’s experts, the
repairs could be made in three months. Horner provided no specific time frame, but his availability
to make repairs was limited to evenings and weekend. Regardless, the City fails to cite and we find
no authority allowing for demolition based solely on the length of time required to make the
necessary repairs and decline to expand the Code’s interpretation to allow such action, especially
in the absence of a reliable economic analysis or an ordinance requiring an exact standard, neither
of which are applicable in this case.
¶ 36 The City’s estimate is admittedly inflated due to reliance on prevailing wage labor rates.
The record contains no evidence that would allow a trier of fact to determine the actual repair
costs, as the City’s values encompassed both materials and labor for the repairs. As such, the record
fails to contain reliable and sufficient evidence necessary to perform the required economic
feasibility analysis. While analysis using a more definite standard, like an ordinance setting a
specific percentage requiring demolition, is proper, such analysis cannot be sustained if, as here,
the underlying ordinance is inapplicable. As this was the basis of the trial court’s decision, the trial
court’s finding that the buildings were damaged beyond reasonable repair was against the manifest
weight of the evidence.
13
¶ 37 III. CONCLUSION
¶ 38 For the foregoing reasons, we vacate the trial court’s finding that it was unreasonable to
allow defendant to repair the buildings and reverse the order authorizing the City of Herrin’s
demolition of defendant’s property.
¶ 39 Reversed.
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¶ 40 APPENDIX
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