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Order to return 5-unit apartment to single-family house upheld

November 15, 2018

The Indiana Court of Appeals affirmed a public works and safety board’s order that a man restore a property he uses as apartments back to a single-family dwelling after finding the home to be unsafe and sufficient evidence proved it was not a multi-family unit.

Jose Andrade, a landlord who owns 32 properties with a total 62 rental units, purchased a Hammond home in 1998 with the intention of renting it out. Before he purchased it, the home had been divided into five apartments, which Andrade continued upon acquiring it. 

After receiving two separate notices from the City of Hammond of various violations of the Hammond Municipal Code and International Building Code, the home was declared unsafe and all five apartments inhabitable.

The findings concluded that the home had inadequate fire stopping, lack of fire blocking, flammable support beams, inadequate fire separation, improperly braced stairs of inadequate width, lack of basement apartment bedroom windows, low basement ceilings that would contribute to smoke accumulation and prevent egress in an emergency. The house also had inadequate smoke detectors.

At a hearing, the Hammond Board of Public Works and Safety concluded that the home, constructed in 1927, was originally built as a single-family residence and that the apartments could not be lawfully occupied in the home’s current condition. It then ordered Andrade to restore the home to a single-family dwelling, which the Lake Superior Court upheld in a March 2018 decision.

On appeal, Andrade contended that the Board exceeded its statutory authority by acting as a zoning authority when it ordered him to restore the home to a single-family dwelling.

The Court of Appeals found that the board’s order that the four unsafe apartments in the home be removed fell squarely within the ambit of the Indiana Unsafe Building Law’s unambiguous provisions.

“Because the UBL provided the authority for the action ordered by the Board and the Board did not make any impermissible findings to support that action, we conclude that the Board did not exceed its statutory authority when it ordered Andrade to restore the Home to a single-family dwelling,” Judge Patricia Riley wrote for the court.

Andrade further argued that the order was without substantial evidence and not in accordance with law because he met his burden of proof to show that the home was constructed as a multi-family unit. However, the appellate court agreed with the board that Andrade’s argument was misplaced and that because the inspector found the home comparable to other similar single-family homes in the area built in the same year, the decision was not clearly erroneous.

Lastly, Andrade argued that the order should be reversed because the city did not comply with his subpoena, which he claimed resulted in his inability to cross-examine city experts and inspectors.

But the appellate court found that Andrade offered no authority for his proposition that the board had an obligation, sua sponte, to enforce his discovery request. It concluded that the city’s failure to comply with Andrade’s discovery request did not merit reversal.

Additionally, the appellate court concluded in Jose Andrade v. City of Hammond and Hammond Board of Public Works and Safety, 18A-MI-1199, that the board did not exceed its statuary authority in its order and that there was sufficient evidence to prove the home was constructed with the intention of serving as a single-family dwelling.

 

 

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