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90_SB0970
65 ILCS 5/Art. 11, Div. 31 heading
65 ILCS 5/11-31-1 from Ch. 24, par. 11-31-1
735 ILCS 5/7-119 from Ch. 110, par. 7-119
Amends the Illinois Municipal Code to apply the
provisions of demolition, repair, or enclosure of abandoned
or unsafe buildings by municipalities to the clean-up,
inspection, testing, and remediation of hazardous substances
in those buildings or on abandoned or unsafe property.
Amends the Code of Civil Procedure to provide that evidence
of environmental hazard, cost of clean-up, and effect on fair
market value are admissible in eminent domain proceedings.
LRB9002394PTcw
LRB9002394PTcw
1 AN ACT concerning environmental clean-up.
2 Be it enacted by the People of the State of Illinois,
3 represented in the General Assembly:
4 Section 5. The Illinois Municipal Code is amended by
5 changing the Article 11, Division 31 heading and Section
6 11-31-1 as follows:
7 (65 ILCS 5/Art. 11, Div. 31 heading)
8 Division 31. Unsafe Property Buildings
9 (65 ILCS 5/11-31-1) (from Ch. 24, par. 11-31-1)
10 Sec. 11-31-1. Demolition, repair, or enclosure, or
11 clean-up.
12 (a) The corporate authorities of each municipality may
13 demolish, repair, or enclose or cause the demolition, repair,
14 or enclosure of dangerous and unsafe buildings or uncompleted
15 and abandoned buildings within the territory of the
16 municipality and may remove or cause the removal of garbage,
17 debris, and other hazardous, noxious, or unhealthy substances
18 or materials, including the remediation of hazardous
19 substances or materials, from those buildings or from any
20 unsafe or abandoned property within the territory of the
21 municipality, whether or not improved by a building, and may
22 enclose or cause the enclosure of that property. In addition,
23 if preliminary evidence indicates the presence or likely
24 presence of a hazardous substance or material or a release or
25 a substantial threat of a release of a hazardous substance or
26 material on, in, or under any abandoned or unused property
27 within the territory of the municipality, then the corporate
28 authorities of each municipality may enter the building or
29 property and, where indicated, test for the presence or
30 release of the hazardous substances or materials. In any
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1 county having adopted by referendum or otherwise a county
2 health department as provided by Division 5-25 of the
3 Counties Code or its predecessor, the county board of that
4 county may exercise those powers with regard to dangerous and
5 unsafe buildings and property or uncompleted and abandoned
6 buildings and abandoned property within the territory of any
7 city, village, or incorporated town having less than 50,000
8 population.
9 The corporate authorities shall apply to the circuit
10 court of the county in which the building or property is
11 located (i) for an order authorizing action to be taken with
12 respect to a building or property if the owner or owners of
13 the building or property, including the lien holders of
14 record, after at least 15 days' written notice by mail so to
15 do, have failed to put the building or property in a safe
16 condition or to demolish the building it, or (ii) for an
17 order requiring the owner or owners of record to demolish, or
18 repair the building, or to enclose the building or property
19 or to remove garbage, debris, and other hazardous, noxious,
20 or unhealthy substances or materials from the building or
21 property, or (iii) for an order allowing the municipality to
22 enter the building or property to inspect and, where
23 indicated, to test substances and materials on, in, or under
24 the building or property. It is not a defense to the cause
25 of action that the building or property is boarded up or
26 otherwise enclosed, although the court may order the
27 defendant to have the building boarded up or otherwise
28 enclosed. Where, upon diligent search, the identity or
29 whereabouts of the owner or owners of the building or
30 property, including the lien holders of record, is not
31 ascertainable, notice mailed to the person or persons in
32 whose name the real estate was last assessed is sufficient
33 notice under this Section.
34 The hearing upon the application to the circuit court
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1 shall be expedited by the court and shall be given precedence
2 over all other suits. Any person entitled to bring an action
3 under subsection (b) shall have the right to intervene in an
4 action brought under this Section.
5 The cost of the demolition, repair, enclosure, inspection
6 and testing, remediation, or removal incurred by the
7 municipality, by an intervenor, or by a lien holder of
8 record, including court costs, costs of inspection and
9 testing, attorney's fees, and other costs related to the
10 enforcement of this Section, is recoverable from the owner or
11 owners of the real estate or the previous owner or both if
12 the property was transferred during the 15 day notice period
13 and is a lien on the real estate; the lien is superior to all
14 prior existing liens and encumbrances, except taxes, if,
15 within 180 days after the repair, demolition, enclosure,
16 remediation, or removal, the municipality, the lien holder of
17 record, or the intervenor who incurred the cost and expense
18 shall file a notice of lien for the cost and expense incurred
19 in the office of the recorder in the county in which the real
20 estate is located or in the office of the registrar of titles
21 of the county if the real estate affected is registered under
22 the Registered Titles (Torrens) Act.
23 The notice must consist of a sworn statement setting out
24 (1) a description of the real estate sufficient for its
25 identification, (2) the amount of money representing the cost
26 and expense incurred, and (3) the date or dates when the cost
27 and expense was incurred by the municipality, the lien holder
28 of record, or the intervenor. Upon payment of the cost and
29 expense by the owner of or persons interested in the property
30 after the notice of lien has been filed, the lien shall be
31 released by the municipality, the person in whose name the
32 lien has been filed, or the assignee of the lien, and the
33 release may be filed of record as in the case of filing
34 notice of lien. Unless the lien is enforced under subsection
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1 (c), the lien may be enforced by foreclosure proceedings as
2 in the case of mortgage foreclosures under Article XV of the
3 Code of Civil Procedure or mechanics' lien foreclosures. An
4 action to foreclose this lien may be commenced at any time
5 after the date of filing of the notice of lien. The costs of
6 foreclosure incurred by the municipality, including court
7 costs, reasonable attorney's fees, advances to preserve the
8 property, and other costs related to the enforcement of this
9 subsection, plus statutory interest, are a lien on the real
10 estate and are recoverable by the municipality from the owner
11 or owners of the real estate.
12 All liens arising under this subsection (a) shall be
13 assignable. The assignee of the lien shall have the same
14 power to enforce the lien as the assigning party, except that
15 the lien may not be enforced under subsection (c).
16 If the appropriate official of any municipality
17 determines that any dangerous and unsafe building or
18 uncompleted and abandoned building within its territory
19 fulfills the requirements for an action by the municipality
20 under the Abandoned Housing Rehabilitation Act, the
21 municipality may petition under that Act in a proceeding
22 brought under this subsection.
23 (b) Any owner or tenant of real property within 1200
24 feet in any direction of any dangerous or unsafe building
25 located within the territory of a municipality with a
26 population of 500,000 or more may file with the appropriate
27 municipal authority a request that the municipality apply to
28 the circuit court of the county in which the building is
29 located for an order permitting the demolition, removal of
30 garbage, debris, and other noxious or unhealthy substances
31 and materials from, or repair or enclosure of the building in
32 the manner prescribed in subsection (a) of this Section. If
33 the municipality fails to institute an action in circuit
34 court within 90 days after the filing of the request, the
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1 owner or tenant of real property within 1200 feet in any
2 direction of the building may institute an action in circuit
3 court seeking an order compelling the owner or owners of
4 record to demolish, remove garbage, debris, and other noxious
5 or unhealthy substances and materials from, repair or enclose
6 or to cause to be demolished, have garbage, debris, and other
7 noxious or unhealthy substances and materials removed from,
8 repaired, or enclosed the building in question. A private
9 owner or tenant who institutes an action under the preceding
10 sentence shall not be required to pay any fee to the clerk of
11 the circuit court. The cost of repair, removal, demolition,
12 or enclosure shall be borne by the owner or owners of record
13 of the building. In the event the owner or owners of record
14 fail to demolish, remove garbage, debris, and other noxious
15 or unhealthy substances and materials from, repair, or
16 enclose the within 90 days of the date the court entered its
17 order, the owner or tenant who instituted the action may
18 request that the court join the municipality as a party to
19 the action. The court may order the municipality to
20 demolish, remove materials from, repair, or enclose the
21 building, or cause that action to be taken upon the request
22 of any owner or tenant who instituted the action or upon the
23 municipality's request. The municipality may file, and the
24 court may approve, a plan for rehabilitating the building in
25 question. A court order authorizing the municipality to
26 demolish, remove materials from, repair, or enclose a
27 building, or cause that action to be taken, shall not
28 preclude the court from adjudging the owner or owners of
29 record of the building in contempt of court due to the
30 failure to comply with the order to demolish, remove garbage,
31 debris, and other noxious or unhealthy substances and
32 materials from, repair, or enclose the building.
33 If a municipality or a person or persons other than the
34 owner or owners of record pay the cost of demolition, removal
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1 of garbage, debris, and other noxious or unhealthy substances
2 and materials, repair, or enclosure pursuant to a court
3 order, the cost, including court costs, attorney's fees, and
4 other costs related to the enforcement of this subsection, is
5 recoverable from the owner or owners of the real estate and
6 is a lien on the real estate; the lien is superior to all
7 prior existing liens and encumbrances, except taxes, if,
8 within 180 days after the repair, removal, demolition, or
9 enclosure, the municipality or the person or persons who paid
10 the costs of demolition, removal, repair, or enclosure shall
11 file a notice of lien of the cost and expense incurred in the
12 office of the recorder in the county in which the real estate
13 is located or in the office of the registrar of the county if
14 the real estate affected is registered under the Registered
15 Titles (Torrens) Act. The notice shall be in a form as is
16 provided in subsection (a). An owner or tenant who
17 institutes an action in circuit court seeking an order to
18 compel the owner or owners of record to demolish, remove
19 materials from, repair, or enclose any dangerous or unsafe
20 building, or to cause that action to be taken under this
21 subsection may recover court costs and reasonable attorney's
22 fees for instituting the action from the owner or owners of
23 record of the building. Upon payment of the costs and
24 expenses by the owner of or a person interested in the
25 property after the notice of lien has been filed, the lien
26 shall be released by the municipality or the person in whose
27 name the lien has been filed or his or her assignee, and the
28 release may be filed of record as in the case of filing a
29 notice of lien. Unless the lien is enforced under subsection
30 (c), the lien may be enforced by foreclosure proceedings as
31 in the case of mortgage foreclosures under Article XV of the
32 Code of Civil Procedure or mechanics' lien foreclosures. An
33 action to foreclose this lien may be commenced at any time
34 after the date of filing of the notice of lien. The costs of
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1 foreclosure incurred by the municipality, including court
2 costs, reasonable attorneys' fees, advances to preserve the
3 property, and other costs related to the enforcement of this
4 subsection, plus statutory interest, are a lien on the real
5 estate and are recoverable by the municipality from the owner
6 or owners of the real estate.
7 All liens arising under the terms of this subsection (b)
8 shall be assignable. The assignee of the lien shall have the
9 same power to enforce the lien as the assigning party, except
10 that the lien may not be enforced under subsection (c).
11 (c) In any case where a municipality has obtained a lien
12 under subsection (a) or (b), the municipality may enforce the
13 lien under this subsection (c) in the same proceeding in
14 which the lien is authorized.
15 A municipality desiring to enforce a lien under this
16 subsection (c) shall petition the court to retain
17 jurisdiction for foreclosure proceedings under this
18 subsection. Notice of the petition shall be served, by
19 certified or registered mail, on all persons who were served
20 notice under subsection (a) or (b). The court shall conduct
21 a hearing on the petition not less than 15 days after the
22 notice is served. If the court determines that the
23 requirements of this subsection (c) have been satisfied, it
24 shall grant the petition and retain jurisdiction over the
25 matter until the foreclosure proceeding is completed. The
26 costs of foreclosure incurred by the municipality, including
27 court costs, reasonable attorneys' fees, advances to preserve
28 the property, and other costs related to the enforcement of
29 this subsection, plus statutory interest, are a lien on the
30 real estate and are recoverable by the municipality from the
31 owner or owners of the real estate. If the court denies the
32 petition, the municipality may enforce the lien in a separate
33 action as provided in subsection (a) or (b).
34 All persons designated in Section 15-1501 of the Code of
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1 Civil Procedure as necessary parties in a mortgage
2 foreclosure action shall be joined as parties before issuance
3 of an order of foreclosure. Persons designated in Section
4 15-1501 of the Code of Civil Procedure as permissible parties
5 may also be joined as parties in the action.
6 The provisions of Article XV of the Code of Civil
7 Procedure applicable to mortgage foreclosures shall apply to
8 the foreclosure of a lien under this subsection (c), except
9 to the extent that those provisions are inconsistent with
10 this subsection. For purposes of foreclosures of liens
11 under this subsection, however, the redemption period
12 described in subsection (b) of Section 15-1603 of the Code of
13 Civil Procedure shall end 60 days after the date of entry of
14 the order of foreclosure.
15 (d) In addition to any other remedy provided by law, the
16 corporate authorities of any municipality may petition the
17 circuit court to have property declared abandoned under this
18 subsection (d) if:
19 (1) the property has been tax delinquent for 2 or
20 more years or bills for water service for the property
21 have been outstanding for 2 or more years;
22 (2) the property is unoccupied by persons legally
23 in possession; and
24 (3) the property contains a dangerous or unsafe
25 building.
26 All persons having an interest of record in the property,
27 including tax purchasers and beneficial owners of any
28 Illinois land trust having title to the property, shall be
29 named as defendants in the petition and shall be served with
30 process. In addition, service shall be had under Section
31 2-206 of the Code of Civil Procedure as in other cases
32 affecting property.
33 The municipality, however, may proceed under this
34 subsection in a proceeding brought under subsection (a) or
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1 (b). Notice of the petition shall be served by certified or
2 registered mail on all persons who were served notice under
3 subsection (a) or (b).
4 If the municipality proves that the conditions described
5 in this subsection exist and the owner of record of the
6 property does not enter an appearance in the action, or, if
7 title to the property is held by an Illinois land trust, if
8 neither the owner of record nor the owner of the beneficial
9 interest of the trust enters an appearance, the court shall
10 declare the property abandoned.
11 If that determination is made, notice shall be sent by
12 certified or registered mail to all persons having an
13 interest of record in the property, including tax purchasers
14 and beneficial owners of any Illinois land trust having title
15 to the property, stating that title to the property will be
16 transferred to the municipality unless, within 30 days of the
17 notice, the owner of record enters an appearance in the
18 action, or unless any other person having an interest in the
19 property files with the court a request to demolish the
20 dangerous or unsafe building or to put the building in safe
21 condition.
22 If the owner of record enters an appearance in the action
23 within the 30 day period, the court shall vacate its order
24 declaring the property abandoned. In that case, the
25 municipality may amend its complaint in order to initiate
26 proceedings under subsection (a).
27 If a request to demolish or repair the building is filed
28 within the 30 day period, the court shall grant permission to
29 the requesting party to demolish the building within 30 days
30 or to restore the building to safe condition within 60 days
31 after the request is granted. An extension of that period
32 for up to 60 additional days may be given for good cause. If
33 more than one person with an interest in the property files a
34 timely request, preference shall be given to the person with
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1 the lien or other interest of the highest priority.
2 If the requesting party proves to the court that the
3 building has been demolished or put in a safe condition
4 within the period of time granted by the court, the court
5 shall issue a quitclaim judicial deed for the property to the
6 requesting party, conveying only the interest of the owner of
7 record, upon proof of payment to the municipality of all
8 costs incurred by the municipality in connection with the
9 action, including but not limited to court costs, attorney's
10 fees, administrative costs, the costs, if any, associated
11 with building enclosure or removal, and receiver's
12 certificates. The interest in the property so conveyed shall
13 be subject to all liens and encumbrances on the property. In
14 addition, if the interest is conveyed to a person holding a
15 certificate of purchase for the property under the Property
16 Tax Code, the conveyance shall be subject to the rights of
17 redemption of all persons entitled to redeem under that Act,
18 including the original owner of record.
19 If no person with an interest in the property files a
20 timely request or if the requesting party fails to demolish
21 the building or put the building in safe condition within the
22 time specified by the court, the municipality may petition
23 the court to issue a judicial deed for the property to the
24 municipality. A conveyance by judicial deed shall operate to
25 extinguish all existing ownership interests in, liens on, and
26 other interest in the property, including tax liens.
27 (e) Each municipality may use the provisions of this
28 subsection to expedite the removal of certain buildings that
29 are a continuing hazard to the community in which they are
30 located.
31 If a residential building is 2 stories or less in height
32 as defined by the municipality's building code, and the
33 corporate official designated to be in charge of enforcing
34 the municipality's building code determines that the building
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1 is open and vacant and an immediate and continuing hazard to
2 the community in which the building is located, then the
3 official shall be authorized to post a notice not less than 2
4 feet by 2 feet in size on the front of the building. The
5 notice shall be dated as of the date of the posting and shall
6 state that unless the building is demolished, repaired, or
7 enclosed, and unless any garbage, debris, and other
8 hazardous, noxious, or unhealthy substances or materials are
9 removed so that an immediate and continuing hazard to the
10 community no longer exists, then the building may be
11 demolished, repaired, or enclosed, or any garbage, debris,
12 and other hazardous, noxious, or unhealthy substances or
13 materials may be removed, by the municipality.
14 Not later than 30 days following the posting of the
15 notice, the municipality shall do both of the following:
16 (1) Cause to be sent, by certified mail, return
17 receipt requested, a notice to all owners of record of
18 the property, the beneficial owners of any Illinois land
19 trust having title to the property, and all lienholders
20 of record in the property, stating the intent of the
21 municipality to demolish, repair, or enclose the building
22 or remove any garbage, debris, or other hazardous,
23 noxious, or unhealthy substances or materials if that
24 action is not taken by the owner or owners.
25 (2) Cause to be published, in a newspaper published
26 or circulated in the municipality where the building is
27 located, a notice setting forth (i) the permanent tax
28 index number and the address of the building, (ii) a
29 statement that the property is open and vacant and
30 constitutes an immediate and continuing hazard to the
31 community, and (iii) a statement that the municipality
32 intends to demolish, repair, or enclose the building or
33 remove any garbage, debris, or other hazardous, noxious,
34 or unhealthy substances or materials if the owner or
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1 owners or lienholders of record fail to do so. This
2 notice shall be published for 3 consecutive days.
3 A person objecting to the proposed actions of the
4 corporate authorities may file his or her objection in an
5 appropriate form in a court of competent jurisdiction.
6 If the building is not demolished, repaired, or enclosed,
7 or the garbage, debris, or other hazardous, noxious, or
8 unhealthy substances or materials are not removed, within 30
9 days of mailing the notice to the owners of record, the
10 beneficial owners of any Illinois land trust having title to
11 the property, and all lienholders of record in the property,
12 or within 30 days of the last day of publication of the
13 notice, whichever is later, the corporate authorities shall
14 have the power to demolish, repair, or enclose the building
15 or to remove any garbage, debris, or other hazardous,
16 noxious, or unhealthy substances or materials.
17 The municipality may proceed to demolish, repair, or
18 enclose a building or remove any garbage, debris, or other
19 hazardous, noxious, or unhealthy substances or materials
20 under this subsection within a 120-day period following the
21 date of the mailing of the notice if the appropriate official
22 determines that the demolition, repair, enclosure, or removal
23 of any garbage, debris, or other hazardous, noxious, or
24 unhealthy substances or materials is necessary to remedy the
25 immediate and continuing hazard. If, however, before the
26 municipality proceeds with any of the actions authorized by
27 this subsection, any person has sought a hearing under this
28 subsection before a court and has served a copy of the
29 complaint on the chief executive officer of the municipality,
30 then the municipality shall not proceed with the demolition,
31 repair, enclosure, or removal of garbage, debris, or other
32 substances until the court determines that that action is
33 necessary to remedy the hazard and issues an order
34 authorizing the municipality to do so.
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1 Following the demolition, repair, or enclosure of a
2 building, or the removal of garbage, debris, or other
3 hazardous, noxious, or unhealthy substances or materials
4 under this subsection, the municipality may file a notice of
5 lien against the real estate for the cost of the demolition,
6 repair, enclosure, or removal within 180 days after the
7 repair, demolition, enclosure, or removal occurred, for the
8 cost and expense incurred, in the office of the recorder in
9 the county in which the real estate is located or in the
10 office of the registrar of titles of the county if the real
11 estate affected is registered under the Registered Titles
12 (Torrens) Act. The notice of lien shall consist of a sworn
13 statement setting forth (i) a description of the real estate,
14 such as the address or other description of the property,
15 sufficient for its identification; (ii) the expenses incurred
16 by the municipality in undertaking the remedial actions
17 authorized under this subsection; (iii) the date or dates the
18 expenses were incurred by the municipality; (iv) a statement
19 by the corporate official responsible for enforcing the
20 building code that the building was open and vacant and
21 constituted an immediate and continuing hazard to the
22 community; (v) a statement by the corporate official that the
23 required sign was posted on the building, that notice was
24 sent by certified mail to the owners of record, and that
25 notice was published in accordance with this subsection; and
26 (vi) a statement as to when and where the notice was
27 published. The lien authorized by this subsection may
28 thereafter be released or enforced by the municipality as
29 provided in subsection (a).
30 (Source: P.A. 88-646, eff. 1-1-95; 88-658, eff. 1-1-95;
31 88-670, eff. 12-2-94; 89-235, eff. 8-4-95; 89-303, eff.
32 1-1-96.)
33 Section 10. The Code of Civil Procedure is amended by
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1 changing Section 7-119 as follows:
2 (735 ILCS 5/7-119) (from Ch. 110, par. 7-119)
3 Sec. 7-119. Admissibility of evidence. Evidence is
4 admissible as to (1) any benefit to the landowner that will
5 result from the public improvement for which the eminent
6 domain proceedings were instituted; (2) any unsafe,
7 unsanitary, substandard or other illegal condition, use or
8 occupancy of the property, including but not limited to any
9 violation of any environmental law or regulation; (3) the
10 effect of such condition on income from or the fair market
11 value of the property; and (4) the reasonable cost of causing
12 the property to be placed in a legal condition, use or
13 occupancy, including but not limited to complying with
14 environmental laws and regulations. Such evidence is
15 admissible notwithstanding the absence of any official action
16 taken to require the correction or abatement of such illegal
17 condition, use or occupancy.
18 In addition, if the property contains an adverse
19 environmental condition that does not rise to the level of an
20 illegal condition but that may affect its fair market value,
21 then evidence shall be admissible as to the nature and extent
22 of the condition, the costs of environmental remediation, and
23 the effect of the condition on the fair market value.
24 (Source: P.A. 82-280.)