from the Lake Superior Court The Honorable Calvin D. Hawkins,
Judge Trial Court Cause No. 45D02-1508-MI-15
ATTORNEY FOR APPELLANT Patrick B. McEuen Portage, Indiana
ATTORNEYS FOR APPELLEES David C. Jensen John M. McCrum Robert
J. Feldt Kevin T. McNamara Eichhorn & Eichhorn, LLP
OF THE CASE
Appellant-Plaintiff, Jose Andrade (Andrade), appeals the
trial court's order affirming the decision of
Appellee-Defendant, Hammond Board of Public Works and Safety
(the Board), to restore the 6609 Jefferson Avenue Home (the
Home) owned by him to a single-family dwelling.
Andrade presents us with three issues on appeal, which we
1) Whether the Board exceeded its statutory authority when it
ordered Andrade to restore the Home to a single-family
2) Whether the Board's finding that the Home was
originally built as a single-family residence was supported
by substantial evidence; and
3) Whether the failure of the City of Hammond (the City) to
produce the 1927 Hammond building code in response to
Andrade's subpoena duces tecum merits reversal.
AND PROCEDURAL HISTORY
Andrade is a landlord who owns thirty-two properties with a
total of sixty-two rental units. The Home was constructed in
Hammond in 1927 and was purchased by Andrade in 1998. The
Home was divided into five separate apartments before Andrade
purchased it, and he continued to rent the five units. The
City first inspected the Home on March 13, 2013. That
inspection yielded a Notice of Violation mailed on May 10,
2013, (the 2013 Notice) which provided that the Home had been
found to be an unsafe building in violation of Indiana's
Unsafe Building Law (the UBL). The 2013 Notice listed various
Hammond Municipal Code and International Building Code
violations that the City relied upon to conclude that the
Home was unsafe. All five of the units of the Home were
marked as uninhabitable by the City. On May 14, 2015, the
Board held a hearing on the 2013 Notice in Andrade's
absence, which the Lake County Superior Court subsequently
found had taken place without proper notice to Andrade. The
Lake County Superior Court remanded the matter to the Board
for further proceedings.
Because of the amount of time that had elapsed since the
first inspection, the City had the Home re-inspected on
September 8, 2016, by Building Commissioner Kurtis Koch
(Koch). As a result of that inspection, the City issued
Andrade a second Notice of Violation (the 2016 Notice) which
provided that the Home had been found to be an unsafe
building pursuant to the UBL. The 2016 Notice identified
twelve groupings of impaired structural conditions, eleven
groupings of fire hazards, and six groupings of "a
violation of a statute or ordinance concerning building
condition or maintenance" all of which, under the UBL,
rendered the Home an unsafe building. (Appellant's App.
Vol. II, p. 42).
A hearing on the 2016 Notice was scheduled for January 12,
2017. On January 4, 2017, Andrade served the City's Chief
of Inspections Kelly Kearney (Kearney) with a subpoena
duces tecum requesting that he bring to the hearing
all "regulations, ordinances, and/or statutes" used
by him to support his previous testimony before the Board at
the first hearing regarding various unsafe conditions at the
Home. (Appellant's App. Vol. II, pp. 44-45). The City did
not comply with Andrade's subpoena.
The January 12, 2017, hearing took place before the
three-member Board. Koch testified regarding various unsafe
conditions in the home, including the Home's balloon
framing which was typically used in single-family homes built
around 1927. This was a significant safety concern because
that type of framing allowed fire and smoke to travel through
a home unimpeded. Koch also testified that the Home's
rear stairway was unsafe under the UBL because the stair
width was inadequate to accommodate any first responders and
their gear in an emergency. Koch identified other unsafe
conditions in the home, such as the basement entrance which
could not accommodate first responders, the fact that the
bedroom basement lacked windows preventing escape in case of
fire, and a chimney chase with inadequate fire stopping. Koch
concluded that the Home was built in 1927 as a single-family
home because it was built to the same standards as hundreds
of other single-family homes in the area and had none of the
structural elements which would have been present in a
multi-family structure built in 1927. It was Koch's
opinion that, in its current configuration, the Home was
unsafe. Andrade's counsel cross-examined Koch on a
variety of topics, including the width of the stairs in the
rear stairway, the Home's water heater for which Andrade
also had been cited, inaccuracies in the City's
permitting lists, and the similarities between the two
inspection reports which formed the basis of the 2013 and
2016 Notices of Violation.
Kearney testified at the January 12, 2017, hearing that the
City's ledger of building permits showed that the Home
was issued a building permit for a "[n]ine room
frame" which indicated to him that the Home had been
constructed as a single-family home. (Appellee's App.
Vol. II, p. 103). Kearney noted that during that era, if a
structure was to be built with multiple apartments, it would
have been indicated in the ledger entry. It was Kearny's
opinion that the Home was unsafe because it had impaired
structural conditions, fire hazards, and ordinance
violations. Kearny requested on behalf of the City that the
Board remove any apartments from the Home that were unsafe.
On cross-examination, Andrade's counsel asked Kearney
questions about what the 1927 Hammond building code would
have required in terms of basement window height, the use of
wooden support beams in the home, kick plates on stairs,
hallway doors, basement ceiling height, and electrical
meters. A discussion ensued between Andrade's counsel and
the City's counsel regarding the City's failure to
bring to the hearing the documents Andrade sought in his
subpoena duces tecum. The City posited that it was
not required to bring the requested documents for a variety
of reasons, including that the material sought was publicly
available. The discussion ended as follows:
Andrade's Counsel: But I asked for the ones that
particularly he relied on in particular.
City's Counsel: Which are identified in the notice
that's already been offered in the exhibit.
Andrade's Counsel: Let's move on. Let's move on.
(Appellee's App. Vol. II, p. 120).
Andrade offered testimony and documentary evidence to the
Board that he contended proved that the Home was built as a
multi-family unit in 1927. Andrade's counsel argued to
the Board during Andrade's testimony that "if this
house is ruled a single-family house, [Andrade] knows that,
you know, it's over for him with this house."
(Appellee's App. Vol. II, pp. 182-83).
At the end of the hearing, the City argued to the Board that,
regardless of whether the Home was built as a single or
multi-family home, the UBL gave them the authority to act to
address unsafe buildings. During his closing remarks to the
Board, Andrade's counsel noted that "[o]pposing
counsel has indicated that the issue is the [UBL], which we
understand." (Appellee's App. Vol. III, p. 2).
Andrade's counsel also argued
And [Andrade] understood that his building was a
single-family home - was not - excuse me - was not a
single-family home when constructed. And I want to focus your
Board on that - the Board on that issue. Because if it is not
a single-family home, then it will stay the way it is
depending on what you do in your decision.
However, if it is ruled that it was a single-family home,
then this property can't ...