Demolitions, Vacant and/or Abandoned Properties Illinois Municipal League Conference September 2015

Why Demolition? What this presentation is ALL about: Why this is important What to demo and how How to expedite the process How to recover your costs

Why Demolition? Broken Window Theory

Broken Window Theory One broken window, left unrepaired, leads to more broken windows as the appearance is given that no one cares or protects the property, that the building becomes increasingly more deteriorated, and that the deterioration may have a ripple effect.

Broken Window Theory

Broken Window Theory Buildings that are indefinitely vacant, or vacant and in a state of disrepair, or boarded, contribute to a decrease in surrounding property values, discourage investment in neighboring properties, provide a location for criminal activity, undermine the aesthetic character of the neighborhood and City, and have other deleterious effects.  

Broken Window Theory  

Why Demolition? Dissatisfied Neighbors

Why Demolition? Most complaints actually start with the neighbors. Tall grass Weeds Rodents and pests Other nuisance complaints

Neighborhood Dangers Crime rates Vandalism Drug use  

Why Demolition? And the inevitable call to the Mayor’s office

The Process Where do you start?

Setting Priorities The worst of the worst Corridors Low-hanging fruit Tax-delinquent properties Willing property owners

Emergencies What constitutes an emergency? Least restrictive means necessary What do your ordinances say?

Prepping a Case for Counsel Photographs Code violation and citation history Condemnation history Title confirmation - recent

Funding & Recovery Sources General funds TIF funds Special funds/donations Demolition agreements Grants IDNR IHDA Abandoned Properties Blight Reduction Liens Reduce cost through recycling and salvage

Necessary proof for a demolition 65 ILCS 5/11-31-1(a) Building or Structure AND Which are Dangerous or Unsafe OR Which are Uncompleted and Abandoned Plus, Proof required by an Illinois Supreme Court Opinions: Building or Structure is “Beyond Reasonable repair” (i.e., cannot Be Repaired for a Reasonable Cost [Village of Lake Villa v. Stokovich, 810 N.E.2d 13 (2004)] Owners of Building or Structure have been given a “reasonable amount” of time to repair the Building or Structure [City of Aurora v. Meyer, 230 N.E.2d 200 (1967)]

MUNICIPAL AUTHORITY TO CAUSE/REQUIRE DEMOLISH the Building or Structure OR REPAIR the Building or Structure OR ENCLOSE the Building or Structure AND REMOVE from the Building or Structure Garbage or Debris or Substances or Materials which are Hazardous or Noxious or Unhealthy.

WHO PAYS THE COST FOR THESE MUNICIPAL ACTIONS? Owner (NOTE: City/Village Can Sue To “Cause The” Demolition, et al) by a: Court Order For Mandatory Injunction OR Judgment For Monetary Damages Lien For Demolition Costs (Paid when property is sold – NOTE: Property may be sold quicker as it may be MORE Valuable once the dilapidated building or structure is removed)   City by a Court Order Allowing Demolition

PHILOSOPHY UNDERLYING DEMOLITION “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.” (City of Aurora v Meyer) Demolitions “employed with restraint and only if dangers cannot be otherwise abated.” “Only if danger cannot be abated in any other way and absolute necessity exists” “Where hazardous conditions may be remedied without major reconstruction the building may not be destroyed).” (City of Aurora v Meyer) “[D]emolition 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 v. Stokovich]

REASONABLE COST OF REPAIR #1 METHOD (City of Aurora v. Meyer) Cost of Repair of Dangerous Conditions Value of Building in Dilapidated State Is the cost of repair high enough to be a Substantial Reconstruction of the Building?   Requires Expert Witnesses to testify as to their OPINION of Value and Costs of Repair Can Be Unreasonable, regardless of Cost, if the needed repairs are violate Ordinances  

REASONABLE COST OF REPAIR #2 METHOD (Village of Ringwood v REASONABLE COST OF REPAIR #2 METHOD (Village of Ringwood v. Foster, 2010 & 2013 Opinions) UNREASONABLE if Cost of Repair of ALL damage to Building is 50% or more of the Replacement Cost of the Building Test is Listed in the Village's Zoning Ordinance which Bans 50% or more repair of Non-Conforming Structures Rejects Argument that trial court must use a "a flexible standard ... of reasonableness" rather than "a specific percentage.

FACTORS TO DETERMINE IF REASONABLE REPAIRS Delay in Owners Applying For Permit to Begin Repair Work (Before & After 15 Day Notice) Length of Time Building Has Been In Dilapidated Condition Are Repairs really a “Substantial Reconstruction” of the Building (City of Aurora v. Meyer) Are Needed Repairs Prohibited By Existing Municipal Ordinance or State/Federal Law

EXAMPLE OF REASONABLE COST OF REPAIR   $17,000 Value of Building Today Unrepaired (Expert Witness Testimony) $95,000 Value of Building Once Repaired According to Building & Other Codes Code Standards (Expert Witness Testimony) $11,000 Cost of Labor and Materials to Repair Building or Structure (Expert Witness Testimony)   $ 11,000 = 0.647 > 0.50 So Cost of Repair is NOT Reasonable and Judge May Order The $ 17,000 Building's Demolition (Village of Ringwood v. Foster)

ALTERNATIVELY CAN PETITION TO HAVE BUILDING DECLARED ABANDONED & MUNICIPALITY CAN BECOME LEGAL OWNER OF THE PROPERTY 65 ILCS 5/11-31-1(d) (A) Property is Tax Delinquent OR Unpaid Water Bills for 2 or more years, AND (B) Unoccupied By A LEGAL Resident, AND (C) Property contains a Dangerous or Unsafe Building Per 65 ILCS 5/11-31-1(a)

EMERGENCY DEMOLITIONS Turpen v. City of St. Francisville, 495 N. E EMERGENCY DEMOLITIONS Turpen v. City of St. Francisville, 495 N.E.2d 1351 (5th Dist. 1986) Part of a Municipality's Inherent “Police Power” Under The Common Law “Police Power” is the Authority to Regulate to protect its Residents' Health Safety Morals General Welfare WITHOUT First Filing A Lawsuit

WHEN CAN A MUNICIPALITY DO AN EMERGENCY DEMOLITION? To Abate A Nuisance OR Take Appropriate Emergency Measures When a Building is Structurally Dilapidated Poses an IMMINENT Danger to Public Health, Safety or Welfare

WHAT DOES “IMMINENT” MEAN? Action is “Essential” To Preserve health, safety and welfare of citizens (Turpen) Very, Very Rare – Judges Do NOT Like Being Excluded From Decision Building is about to fall down and kill Little Suzy at any moment If Building is open to children, animals or elements, can it be enclosed?

APPELLATE COURT'S EXPLANATION OF “IMMINENT” Turpen v. City of St. Francisville, 495 N.E.2d 1351 (5th Dist. 1986) “Every moment's delay in the removal of the danger exposes the populace to danger.”

IMMINENT?

IMMINENT?

IMMINENT?

IMMINENT?

FAST TRACK DEMOLITIONS 65 ILCS 5/11-31-1(e) ELIGIBLE PROPERTIES (A) Residential or Commercial Building, AND (B) 3 Stories or Less in Height (per Municipality's Building Code), AND (C) Building Code Enforcement Officer determines and declares (1) open and vacant, AND (2) immediate and continuing hazard to the community.

POSSIBLE ENFORCEMENT ACTIONS (A) Demolish the Building (B) Repair the Building (C) Enclose The Building (D) Removal of Substances or Materials that are (1) Garbage (2) Debris (3) Hazardous (4) Noxious (5) Unhealthy

ACTIONS TO ENFORCE (A) Building Code Enforcement Officer posts a Notice (1) at least 2 feet by 2 feet (2) on the front of the Building (3) dated as of the date of posting (4) states that unless the building is demolished, etc. so that an immediate and continuing hazard no longer exists (5) states that the building may be demolished, etc. by the Municipality (B) Within 30 days of posting of the Notice, send by certified mail, RRR, a Notice To Remediate to persons in interest stating the intent of the Municipality to demolish, etc. (C) Publish a Notice in newspaper of general circulation for 3 consecutive days with the above-listed information (D) Record in Office of the County Recorder of Deeds (or in Registrar of Titles if Torrens Act applies) a copy of the Notice To Remediate sent by certified mail

RESPONSE BY PERSON IN INTEREST Can File a Complaint/Objection To Demolition In Local Circuit Court to prevent Demolition If do not file a Complaint or Objection To Demolition, then after 30 Days following the last date of publication of the Notice To Remediate the Municipality Can Demolish, etc., the building

“TRICKS OF THE TRADE” HOW TO SPEED UP THE DEMOLITION PROCESS WHEN YOU ARE CONFRONTING A COURT SYSTEM THAT IS INDIFFERENT

“TRICKS OF THE TRADE” “TRICKS OF THE TRADE” IN PRESENTING MOTIONS AND EXPEDITING COURT PROCEEDINGS FOR JUDICIALLY AUTHORIZED DEMOLITIONS

“TRICKS OF THE TRADE” HOW TO FIND PARTY DEFENDANTS WHEN THEY PLAY HARD TO GET, AND HOW TO COLLECT OUR MONEY FOR THE DEMOLITION

HOW TO USE LIENS EFFECTIVELY “TRICKS OF THE TRADE” HOW TO USE LIENS EFFECTIVELY

HOW TO GET A JUDICIAL DEED IF DESIRED “TRICKS OF THE TRADE” HOW TO GET A JUDICIAL DEED IF DESIRED

“TRICKS OF THE TRADE” ATTORNEY’S FEES

UPDATED CASE LAW Never forget Lake Villa v. Stokovich Recent cases Kathrein v. City of Evanston(7th Cir. May 15, 2014) RBIII, L.P. v. City of San Antonio, No. 11-50626 (5th Cir. April 23, 2013). City of Decatur v. Ballinger, 2013 IL App (4th) 120456 (April 16, 2013). Ballinger v. City of Danville, 2012 IL App (4th) 110637 (March 13, 2012).

POST-DEMOLITION WHEN TO TAKE TITLE Have neighbors indicated a desire to take care of the property Community Gardens Strategic use for the City Can the City be a conduit for a useful titleholder Are we leaving it worse than we found it  

POST-DEMOLITION  

POST-DEMOLITION  

POST-DEMOLITION SURPRISES ALONG THE WAY!  

QUESTIONS AND ANSWERS