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Wednesday, October 7, 2015

Police Powers Extend Beyond Dangers to the General Public

The Illinois Appellate Court recently found that a City’s repair of a property owner’s roof was within the City’s police powers.  The City had issued a building permit to an owner for construction of a garage on his property in 1975.  The owner obtained another permit the following year to remodel and construct an addition to another property.  By 2010, the owner had not completed either project, so the City sued him to declare the permits null and void and to compel him to complete construction in accordance with the City’s code. 
The parties entered into a “consent decree and order,” after which the owner still failed to complete construction pursuant to the order’s terms.  The City then sought a court order under section 11-31-1 of the Illinois Municipal Code to allow it to repair the properties, so that they could be completed according to the City code.
The City presented a number of issues with the properties, noting a lack of compliance with the City’s code and possible fire hazards.  At a hearing on the City’s application for a  repair order, the court found that the properties were unsafe and dangerous, allowing the City permission to remediate, but not alter “aesthetic issues.” 
The City then installed a traditional shingle roof, replacing the existing, unique roof.  The owner then filed suit against the City, arguing that it disassembled and discarded partially installed components of his unique roof.  The court dismissed his arguments and he appealed. 
The Illinois Appellate Court evaluated whether the City’s repair using a shingle roof constituted a use of its police powers or a taking.  The owner argued that although the City was permitted to make the repairs, the City exceeded the scope of the order by demolishing his roof.  The Appellate Court disagreed and found that the City’s actions constituted a use of its police power, rather than a taking.  The court found that the owner had no cause of action and that the City’s conduct was authorized under Section 11-31-1 of the Illinois Municipal Code, noting that an owner does not have the right to allow his property to fall into such disrepair as to create a public safety hazard.   Further, the court stated that the City’s police power is not limited to the remediation of damages that affect the general public, but also extends to dangers that affect only dangers directly connected to the property.  McIlvaine v. The City of St. Charles, 2015 IL App (2d) 141183 (September 23, 2015).
Post Authored by Erin Baker, Ancel Glink


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