Demolition and Preemption

November 1st, 2010 Leave a comment Go to comments

Inspectors often get frustrated with how slow demolition suits proceed through the court system under their state statutes.  Most states establish a a strict procedure that must be followed before a building can be torn down.  Some local authorities adopt the International Property Maintenance Code as their ordinance.  The IPMC contains Section 110 which describes the procedure to be followed when that code is used.  The code official can order the removal of a structure that is so dilapidated  as to be dangerous, unsafe, insanitary or otherwise unfit for human habitation.  After the proper notice and order have been served, the code official can cause the structure to be demolished or removed if the owner fails to comply with the demolition order within a specific time prescribed and has not appealed the order.  There is no involvement of the local court unless an appeal of the order is filed.  One of the concerns that municipal attorneys have is whether state law preempts local ordinance procedure in these kinds of situations.  A recent case in Illinois supports the position that a municipality is not precluded from using a procedure established by a local ordinance instead of the state statute where there is no language in the state statute that indicates it is meant to preempt the use of local ordinances.   In Village of Northfield v. BP America, Inc., 342 Ill.Dec. 827(2010), an abandoned gas station was located on a parcel of property.  The Village of Northfield issued a citation against BP America because the property was a public nuisance under its local ordinance.  The local ordinance requires an abatement of the nuisance, including the possibility of razing the structure. When BP did not comply, the village filed a lawsuit against it and the court found it to be in violation and issued a daily fine.  BP argued that it was not required to pay a fine because the local ordinance was preempted by the Illinois Municipal Code.  The court found that BP was correct because the state law preempted the local ordinance.  The Village of Northfield appealed the decision.  The Appellate Court found that there is nothing in the state statute that specifically limits a municipality’s ability to regulate an abandoned building to the procedures provided for in that section of the Municipal Code.  Therefore, the village nuisance provision was not preempted by state law. This decision only applies to Illinois cases, specifically in the First District, but courts in other states may look to it for guidance if such an issue comes before their courts on the same issue.

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