                             2015 IL App (2d) 141183
                                  No. 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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membrane 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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¶ 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) 141183


fact 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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disrepair 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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Metropolitan 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) 141183


is 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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