State of Illinois
92nd General Assembly
Legislation

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92_HB4988

 
                                              LRB9211679BDcdA

 1        AN ACT concerning municipalities.

 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 Section 11-31-1 as follows:

 6        (65 ILCS 5/11-31-1) (from Ch. 24, par. 11-31-1)
 7        Sec.   11-31-1.  Demolition,   repair,   enclosure,    or
 8    remediation.
 9        (a)  The  corporate  authorities of each municipality may
10    demolish, repair, or enclose or cause the demolition, repair,
11    or enclosure of dangerous and unsafe buildings or uncompleted
12    and  abandoned  buildings  within  the   territory   of   the
13    municipality  and may remove or cause the removal of garbage,
14    debris, and other hazardous, noxious, or unhealthy substances
15    or materials from those  buildings.   In  any  county  having
16    adopted by referendum or otherwise a county health department
17    as  provided  by  Division  5-25  of the Counties Code or its
18    predecessor, the county board of  that  county  may  exercise
19    those powers with regard to dangerous and unsafe buildings or
20    uncompleted  and  abandoned buildings within the territory of
21    any city, village, or  incorporated  town  having  less  than
22    50,000 population.
23        The  corporate  authorities  shall  apply  to the circuit
24    court of the county in which the building is located (i)  for
25    an  order  authorizing  action  to be taken with respect to a
26    building if the owner or owners of  the  building,  including
27    the  lien  holders of record, after at least 15 days' written
28    notice by mail so to do, have failed to put the building in a
29    safe condition or  to  demolish  it  or  (ii)  for  an  order
30    requiring  the owner or owners of record to demolish, repair,
31    or enclose the building or to  remove  garbage,  debris,  and
 
                            -2-               LRB9211679BDcdA
 1    other   hazardous,   noxious,   or  unhealthy  substances  or
 2    materials from the building.  It is  not  a  defense  to  the
 3    cause  of action that the building is boarded up or otherwise
 4    enclosed, although the court may order the defendant to  have
 5    the  building  boarded  up or otherwise enclosed. Where, upon
 6    diligent search, the identity or whereabouts of the owner  or
 7    owners of the building, including the lien holders of record,
 8    is  not ascertainable, notice mailed to the person or persons
 9    in whose name the real estate was last assessed is sufficient
10    notice under this Section.
11        The hearing upon the application  to  the  circuit  court
12    shall be expedited by the court and shall be given precedence
13    over  all other suits. Any person entitled to bring an action
14    under subsection (b) shall have the right to intervene in  an
15    action brought under this Section.
16        The cost of the demolition, repair, enclosure, or removal
17    incurred  by the municipality, by an intervenor, or by a lien
18    holder of record, including court costs, attorney's fees, and
19    other costs related to the enforcement of  this  Section,  is
20    recoverable  from  the  owner or owners of the real estate or
21    the previous owner or both if the  property  was  transferred
22    during  the  15  day  notice period and is a lien on the real
23    estate; the lien is superior to all prior existing liens  and
24    encumbrances,  except  taxes,  if,  within 180 days after the
25    repair, demolition, enclosure, or removal, the  municipality,
26    the lien holder of record, or the intervenor who incurred the
27    cost and expense shall file a notice of lien for the cost and
28    expense  incurred in the office of the recorder in the county
29    in which the real estate is located or in the office  of  the
30    registrar of titles of the county if the real estate affected
31    is registered under the Registered Titles (Torrens) Act.
32        The  notice must consist of a sworn statement setting out
33    (1) a description of  the  real  estate  sufficient  for  its
34    identification, (2) the amount of money representing the cost
 
                            -3-               LRB9211679BDcdA
 1    and expense incurred, and (3) the date or dates when the cost
 2    and expense was incurred by the municipality, the lien holder
 3    of  record,  or  the intervenor. Upon payment of the cost and
 4    expense by the owner of or persons interested in the property
 5    after the notice of lien has been filed, the  lien  shall  be
 6    released  by  the  municipality, the person in whose name the
 7    lien has been filed, or the assignee of  the  lien,  and  the
 8    release  may  be  filed  of  record  as in the case of filing
 9    notice of lien. Unless the lien is enforced under  subsection
10    (c),  the  lien may be enforced by foreclosure proceedings as
11    in the case of mortgage foreclosures under Article XV of  the
12    Code  of  Civil Procedure or mechanics' lien foreclosures. An
13    action to foreclose this lien may be commenced  at  any  time
14    after the date of filing of the notice of lien.  The costs of
15    foreclosure  incurred  by  the  municipality, including court
16    costs, reasonable attorney's fees, advances to  preserve  the
17    property,  and other costs related to the enforcement of this
18    subsection, plus statutory interest, are a lien on  the  real
19    estate and are recoverable by the municipality from the owner
20    or owners of the real estate.
21        All  liens  arising  under  this  subsection (a) shall be
22    assignable. The assignee of the  lien  shall  have  the  same
23    power to enforce the lien as the assigning party, except that
24    the lien may not be enforced under subsection (c).
25        If   the   appropriate   official   of  any  municipality
26    determines  that  any  dangerous  and  unsafe   building   or
27    uncompleted  and  abandoned  building  within  its  territory
28    fulfills  the  requirements for an action by the municipality
29    under  the  Abandoned   Housing   Rehabilitation   Act,   the
30    municipality  may  petition  under  that  Act in a proceeding
31    brought under this subsection.
32        (b)  Any owner or tenant of  real  property  within  1200
33    feet  in  any  direction  of any dangerous or unsafe building
34    located  within  the  territory  of  a  municipality  with  a
 
                            -4-               LRB9211679BDcdA
 1    population of 500,000 or more may file with  the  appropriate
 2    municipal authority  a request that the municipality apply to
 3    the  circuit  court  of  the  county in which the building is
 4    located for an order permitting the  demolition,  removal  of
 5    garbage,  debris,  and  other noxious or unhealthy substances
 6    and materials from, or repair or enclosure of the building in
 7    the manner prescribed in subsection (a) of this  Section.  If
 8    the  municipality  fails  to  institute  an action in circuit
 9    court within 90 days after the filing  of  the  request,  the
10    owner  or  tenant  of  real  property within 1200 feet in any
11    direction of the building may institute an action in  circuit
12    court  seeking  an  order  compelling  the owner or owners of
13    record to demolish, remove garbage, debris, and other noxious
14    or unhealthy substances and materials from, repair or enclose
15    or to cause to be demolished, have garbage, debris, and other
16    noxious or unhealthy substances and materials  removed  from,
17    repaired,  or  enclosed  the  building in question. A private
18    owner or tenant who institutes an action under the  preceding
19    sentence shall not be required to pay any fee to the clerk of
20    the  circuit  court. The cost of repair, removal, demolition,
21    or enclosure shall be borne by the owner or owners of  record
22    of  the  building. In the event the owner or owners of record
23    fail to demolish, remove garbage, debris, and  other  noxious
24    or  unhealthy  substances  and  materials  from,  repair,  or
25    enclose  the  building  within  90 days of the date the court
26    entered its order, the owner or  tenant  who  instituted  the
27    action  may request that the court join the municipality as a
28    party to the action.  The court may order the municipality to
29    demolish, remove  materials  from,  repair,  or  enclose  the
30    building,  or  cause that action to be taken upon the request
31    of any owner or tenant who instituted the action or upon  the
32    municipality's  request.   The municipality may file, and the
33    court may approve, a plan for rehabilitating the building  in
34    question.  A  court  order  authorizing  the  municipality to
 
                            -5-               LRB9211679BDcdA
 1    demolish,  remove  materials  from,  repair,  or  enclose   a
 2    building,  or  cause  that  action  to  be  taken,  shall not
 3    preclude the court from adjudging  the  owner  or  owners  of
 4    record  of  the  building  in  contempt  of  court due to the
 5    failure to comply with the order to demolish, remove garbage,
 6    debris,  and  other  noxious  or  unhealthy  substances   and
 7    materials from, repair, or enclose the building.
 8        If  a  municipality or a person or persons other than the
 9    owner or owners of record pay the cost of demolition, removal
10    of garbage, debris, and other noxious or unhealthy substances
11    and materials, repair,  or  enclosure  pursuant  to  a  court
12    order,  the cost, including court costs, attorney's fees, and
13    other costs related to the enforcement of this subsection, is
14    recoverable from the owner or owners of the real  estate  and
15    is  a  lien  on  the real estate; the lien is superior to all
16    prior existing liens  and  encumbrances,  except  taxes,  if,
17    within  180  days  after  the repair, removal, demolition, or
18    enclosure, the municipality or the person or persons who paid
19    the costs of demolition, removal, repair, or enclosure  shall
20    file a notice of lien of the cost and expense incurred in the
21    office of the recorder in the county in which the real estate
22    is located or in the office of the registrar of the county if
23    the  real  estate affected is registered under the Registered
24    Titles (Torrens) Act. The notice shall be in  a  form  as  is
25    provided   in   subsection  (a).   An  owner  or  tenant  who
26    institutes an action in circuit court  seeking  an  order  to
27    compel  the  owner  or  owners  of record to demolish, remove
28    materials from, repair, or enclose any  dangerous  or  unsafe
29    building,  or  to  cause  that  action to be taken under this
30    subsection may recover court costs and reasonable  attorney's
31    fees  for  instituting the action from the owner or owners of
32    record of  the  building.  Upon  payment  of  the  costs  and
33    expenses  by  the  owner  of  or  a  person interested in the
34    property after the notice of lien has been  filed,  the  lien
 
                            -6-               LRB9211679BDcdA
 1    shall  be released by the municipality or the person in whose
 2    name the lien has been filed or his or her assignee, and  the
 3    release  may  be  filed  of record as in the case of filing a
 4    notice of lien.  Unless the lien is enforced under subsection
 5    (c), the lien may be enforced by foreclosure  proceedings  as
 6    in  the case of mortgage foreclosures under Article XV of the
 7    Code of Civil Procedure or mechanics' lien foreclosures.   An
 8    action  to  foreclose  this lien may be commenced at any time
 9    after the date of filing of the notice of lien.  The costs of
10    foreclosure incurred by  the  municipality,  including  court
11    costs,  reasonable  attorneys' fees, advances to preserve the
12    property, and other costs related to the enforcement of  this
13    subsection,  plus  statutory interest, are a lien on the real
14    estate and are recoverable by the municipality from the owner
15    or owners of the real estate.
16        All liens arising under the terms of this subsection  (b)
17    shall be assignable.  The assignee of the lien shall have the
18    same power to enforce the lien as the assigning party, except
19    that the lien may not be enforced under subsection (c).
20        (c)  In any case where a municipality has obtained a lien
21    under  subsection  (a),  (b),  or  (f),  the municipality may
22    enforce the lien  under  this  subsection  (c)  in  the  same
23    proceeding in which the lien is authorized.
24        A  municipality  desiring  to  enforce  a lien under this
25    subsection  (c)  shall   petition   the   court   to   retain
26    jurisdiction   for   foreclosure   proceedings   under   this
27    subsection.   Notice  of  the  petition  shall  be served, by
28    certified or registered mail, on all persons who were  served
29    notice  under  subsection  (a), (b), or (f).  The court shall
30    conduct a hearing on the petition not less than 15 days after
31    the notice is served.   If  the  court  determines  that  the
32    requirements  of  this subsection (c) have been satisfied, it
33    shall grant the petition and  retain  jurisdiction  over  the
34    matter  until  the  foreclosure proceeding is completed.  The
 
                            -7-               LRB9211679BDcdA
 1    costs of foreclosure incurred by the municipality,  including
 2    court costs, reasonable attorneys' fees, advances to preserve
 3    the  property,  and other costs related to the enforcement of
 4    this subsection, plus statutory interest, are a lien  on  the
 5    real  estate and are recoverable by the municipality from the
 6    owner or owners of the real estate.  If the court denies  the
 7    petition, the municipality may enforce the lien in a separate
 8    action as provided in subsection (a), (b), or (f).
 9        All  persons designated in Section 15-1501 of the Code of
10    Civil  Procedure  as  necessary   parties   in   a   mortgage
11    foreclosure action shall be joined as parties before issuance
12    of  an  order  of foreclosure.  Persons designated in Section
13    15-1501 of the Code of Civil Procedure as permissible parties
14    may also be joined as parties in the action.
15        The provisions  of  Article  XV  of  the  Code  of  Civil
16    Procedure  applicable to mortgage foreclosures shall apply to
17    the foreclosure of a lien under this subsection  (c),  except
18    to  the  extent  that  those provisions are inconsistent with
19    this subsection.   For  purposes  of  foreclosures  of  liens
20    under   this   subsection,  however,  the  redemption  period
21    described in subsection (b) of Section 15-1603 of the Code of
22    Civil Procedure shall end 60 days after the date of entry  of
23    the order of foreclosure.
24        (d)  In addition to any other remedy provided by law, the
25    corporate  authorities  of  any municipality may petition the
26    circuit court to have property declared abandoned under  this
27    subsection (d) if:
28             (1)  the  property  has been tax delinquent for 2 or
29        more years or bills for water service  for  the  property
30        have been outstanding for 2 or more years;
31             (2)  the  property  is unoccupied by persons legally
32        in possession; and
33             (3)  the property contains  a  dangerous  or  unsafe
34        building.
 
                            -8-               LRB9211679BDcdA
 1        All persons having an interest of record in the property,
 2    including   tax  purchasers  and  beneficial  owners  of  any
 3    Illinois land trust having title to the  property,  shall  be
 4    named  as defendants in the petition and shall be served with
 5    process.  In addition, service shall  be  had  under  Section
 6    2-206  of  the  Code  of  Civil  Procedure  as in other cases
 7    affecting property.
 8        The  municipality,  however,  may  proceed   under   this
 9    subsection  in  a  proceeding brought under subsection (a) or
10    (b).  Notice of the petition shall be served by certified  or
11    registered  mail  on all persons who were served notice under
12    subsection (a) or (b).
13        If the municipality proves that the conditions  described
14    in  this  subsection  exist  and  the  owner of record of the
15    property does not enter an appearance in the action,  or,  if
16    title  to  the property is held by an Illinois land trust, if
17    neither the owner of record nor the owner of  the  beneficial
18    interest  of  the trust enters an appearance, the court shall
19    declare the property abandoned.
20        If that determination is made, notice shall  be  sent  by
21    certified  or  registered  mail  to  all  persons  having  an
22    interest  of record in the property, including tax purchasers
23    and beneficial owners of any Illinois land trust having title
24    to the property, stating that title to the property  will  be
25    transferred to the municipality unless, within 30 days of the
26    notice,  the  owner  of  record  enters  an appearance in the
27    action, or unless any other person having an interest in  the
28    property  files  with  the  court  a  request to demolish the
29    dangerous or unsafe building or to put the building  in  safe
30    condition.
31        If the owner of record enters an appearance in the action
32    within  the  30  day period, the court shall vacate its order
33    declaring  the  property  abandoned.   In  that   case,   the
34    municipality  may  amend  its  complaint in order to initiate
 
                            -9-               LRB9211679BDcdA
 1    proceedings under subsection (a).
 2        If a request to demolish or repair the building is  filed
 3    within the 30 day period, the court shall grant permission to
 4    the  requesting party to demolish the building within 30 days
 5    or to restore the building to safe condition within  60  days
 6    after  the  request  is granted.  An extension of that period
 7    for up to 60 additional days may be given for good cause.  If
 8    more than one person with an interest in the property files a
 9    timely request, preference shall be given to the person  with
10    the lien or other interest of the highest priority.
11        If  the  requesting  party  proves  to the court that the
12    building has been demolished  or  put  in  a  safe  condition
13    within  the  period  of  time granted by the court, the court
14    shall issue a quitclaim judicial deed for the property to the
15    requesting party, conveying only the interest of the owner of
16    record, upon proof of payment  to  the  municipality  of  all
17    costs  incurred  by  the  municipality in connection with the
18    action, including but not limited to court costs,  attorney's
19    fees,  administrative  costs,  the  costs, if any, associated
20    with  building   enclosure   or   removal,   and   receiver's
21    certificates.  The interest in the property so conveyed shall
22    be subject to all liens and encumbrances on the property.  In
23    addition,  if  the interest is conveyed to a person holding a
24    certificate of purchase for the property under  the  Property
25    Tax  Code,  the  conveyance shall be subject to the rights of
26    redemption of all persons entitled to redeem under that  Act,
27    including the original owner of record.
28        If  no  person  with  an interest in the property files a
29    timely request or if the requesting party fails  to  demolish
30    the building or put the building in safe condition within the
31    time  specified  by  the court, the municipality may petition
32    the court to issue a judicial deed for the  property  to  the
33    municipality.  A conveyance by judicial deed shall operate to
34    extinguish all existing ownership interests in, liens on, and
 
                            -10-              LRB9211679BDcdA
 1    other  interest  in  the  property,  including tax liens, and
 2    shall extinguish the rights and  interests  of  any  and  all
 3    holders  of  a  bona  fide  certificate  of  purchase  of the
 4    property  for  delinquent  taxes.    Any   such   bona   fide
 5    certificate of purchase holder shall be entitled to a sale in
 6    error  as prescribed under Section 21-310 of the Property Tax
 7    Code.
 8        (e)  Each municipality may use  the  provisions  of  this
 9    subsection  to expedite the removal of certain buildings that
10    are a continuing hazard to the community in  which  they  are
11    located.
12        If  a  residential or commercial building is 3 stories or
13    less in height as  defined  by  the  municipality's  building
14    code,  and  the corporate official designated to be in charge
15    of enforcing the municipality's building code determines that
16    the  building  is  open  and  vacant  and  an  immediate  and
17    continuing hazard to the community in which the  building  is
18    located,  then  the  official  shall  be authorized to post a
19    notice not less than 2 feet by 2 feet in size on the front of
20    the building.  The notice shall be dated as of  the  date  of
21    the  posting  and  shall  state  that  unless the building is
22    demolished, repaired, or enclosed, and  unless  any  garbage,
23    debris, and other hazardous, noxious, or unhealthy substances
24    or  materials are removed so that an immediate and continuing
25    hazard to the community no longer exists, then  the  building
26    may  be  demolished,  repaired,  or enclosed, or any garbage,
27    debris, and other hazardous, noxious, or unhealthy substances
28    or materials may be removed, by the municipality.
29        Not later than 30  days  following  the  posting  of  the
30    notice, the municipality shall do all of the following:
31             (1)  Cause  to  be  sent,  by certified mail, return
32        receipt requested, a Notice to Remediate to   all  owners
33        of  record  of the property, the beneficial owners of any
34        Illinois land trust having title to the property, and all
 
                            -11-              LRB9211679BDcdA
 1        lienholders of record in the property, stating the intent
 2        of the municipality to demolish, repair, or  enclose  the
 3        building   or   remove  any  garbage,  debris,  or  other
 4        hazardous, noxious, or unhealthy substances or  materials
 5        if that action is not taken by the owner or owners.
 6             (2)  Cause to be published, in a newspaper published
 7        or  circulated  in the municipality where the building is
 8        located, a notice setting forth  (i)  the  permanent  tax
 9        index  number  and  the  address  of the building, (ii) a
10        statement that  the  property  is  open  and  vacant  and
11        constitutes  an  immediate  and  continuing hazard to the
12        community, and (iii) a statement  that  the  municipality
13        intends  to  demolish, repair, or enclose the building or
14        remove any garbage, debris, or other hazardous,  noxious,
15        or  unhealthy  substances  or  materials  if the owner or
16        owners or lienholders of record  fail  to  do  so.   This
17        notice shall be published for 3 consecutive days.
18             (3)  Cause  to  be  recorded the Notice to Remediate
19        mailed under paragraph (1) in the office of the  recorder
20        in  the  county in which the real estate is located or in
21        the office of the registrar of titles of  the  county  if
22        the  real estate is registered under the Registered Title
23        (Torrens) Act.
24        Any person or persons with a current legal  or  equitable
25    interest in the property objecting to the proposed actions of
26    the corporate authorities may file his or her objection in an
27    appropriate form in a court of competent jurisdiction.
28        If the building is not demolished, repaired, or enclosed,
29    or  the  garbage,  debris,  or  other  hazardous, noxious, or
30    unhealthy substances or materials are not removed, within  30
31    days  of  mailing  the  notice  to  the owners of record, the
32    beneficial owners of any Illinois land trust having title  to
33    the  property, and all lienholders of record in the property,
34    or within 30 days of the  last  day  of  publication  of  the
 
                            -12-              LRB9211679BDcdA
 1    notice,  whichever  is later, the corporate authorities shall
 2    have the power to demolish, repair, or enclose  the  building
 3    or  to  remove  any  garbage,  debris,  or  other  hazardous,
 4    noxious, or unhealthy substances or materials.
 5        The  municipality  may  proceed  to  demolish, repair, or
 6    enclose a building or remove any garbage,  debris,  or  other
 7    hazardous,  noxious,  or  unhealthy  substances  or materials
 8    under this subsection within a 120-day period  following  the
 9    date of the mailing of the notice if the appropriate official
10    determines that the demolition, repair, enclosure, or removal
11    of  any  garbage,  debris,  or  other  hazardous, noxious, or
12    unhealthy substances or materials is necessary to remedy  the
13    immediate  and  continuing  hazard.   If, however, before the
14    municipality proceeds with any of the actions  authorized  by
15    this  subsection,  any  person  with  a  legal  or  equitable
16    interest  in  the  property  has  sought a hearing under this
17    subsection before a court  and  has  served  a  copy  of  the
18    complaint on the chief executive officer of the municipality,
19    then  the municipality shall not proceed with the demolition,
20    repair, enclosure, or removal of garbage,  debris,  or  other
21    substances  until  the  court  determines that that action is
22    necessary  to  remedy  the  hazard  and   issues   an   order
23    authorizing the municipality to do so. If the court dismisses
24    the  action  for  want  of prosecution, the municipality must
25    send the objector a copy of the dismissal order and a  letter
26    stating that the demolition, repair, enclosure, or removal of
27    garbage,  debris,  or  other  substances will proceed unless,
28    within 30 days after the copy of the order and the letter are
29    mailed, the objector moves to vacate the dismissal and serves
30    a copy of the motion on the chief executive  officer  of  the
31    municipality.    Nothwithstanding   any   other  law  to  the
32    contrary, if the objector does not file a motion and give the
33    required notice, if the motion is denied by the court, or  if
34    the  action  is again dismissed for want of prosecution, then
 
                            -13-              LRB9211679BDcdA
 1    the dismissal is with prejudice and the  demolition,  repair,
 2    enclosure, or removal may proceed forthwith.
 3        Following  the  demolition,  repair,  or  enclosure  of a
 4    building,  or  the  removal  of  garbage,  debris,  or  other
 5    hazardous, noxious,  or  unhealthy  substances  or  materials
 6    under  this subsection, the municipality may file a notice of
 7    lien against the real estate for the cost of the  demolition,
 8    repair,  enclosure,  or  removal  within  180  days after the
 9    repair, demolition, enclosure, or removal occurred,  for  the
10    cost  and  expense incurred, in the office of the recorder in
11    the county in which the real estate  is  located  or  in  the
12    office  of  the registrar of titles of the county if the real
13    estate affected is registered  under  the  Registered  Titles
14    (Torrens)  Act;  this lien has priority over the interests of
15    those parties named in the Notice to Remediate  mailed  under
16    paragraph  (1),  but  not  over  the interests of third party
17    purchasers or encumbrancers  for  value  who  obtained  their
18    interests   in   the  property  before  obtaining  actual  or
19    constructive notice of the lien. The  notice  of  lien  shall
20    consist  of a sworn statement setting forth (i) a description
21    of the real estate, such as the address or other  description
22    of  the property, sufficient for its identification; (ii) the
23    expenses incurred by  the  municipality  in  undertaking  the
24    remedial  actions authorized under this subsection; (iii) the
25    date or dates the expenses were incurred by the municipality;
26    (iv) a statement by the corporate  official  responsible  for
27    enforcing  the  building  code that the building was open and
28    vacant and constituted an immediate and continuing hazard  to
29    the community; (v) a statement by the corporate official that
30    the required sign was posted on the building, that notice was
31    sent  by  certified  mail  to  the owners of record, and that
32    notice was published in accordance with this subsection;  and
33    (vi)  a  statement  as  to  when  and  where  the  notice was
34    published.   The  lien  authorized  by  this  subsection  may
 
                            -14-              LRB9211679BDcdA
 1    thereafter be released or enforced  by  the  municipality  as
 2    provided in subsection (a).
 3        (f)  The  corporate  authorities of each municipality may
 4    remove or cause the removal of, or otherwise  environmentally
 5    remediate hazardous substances and petroleum products on, in,
 6    or  under  any  abandoned  and  unsafe  property  within  the
 7    territory  of a municipality.  In addition, where preliminary
 8    evidence indicates the  presence  or  likely  presence  of  a
 9    hazardous  substance or a petroleum product or a release or a
10    substantial threat of a release of a hazardous substance or a
11    petroleum  product  on,  in,  or  under  the  property,   the
12    corporate  authorities  of  the  municipality may inspect the
13    property and test for the presence or  release  of  hazardous
14    substances  and  petroleum  products.   In  any county having
15    adopted by referendum or otherwise a county health department
16    as provided by Division 5-25 of  the  Counties  Code  or  its
17    predecessor, the county board of that county may exercise the
18    above-described  powers  with  regard  to property within the
19    territory of any city, village, or incorporated  town  having
20    less than 50,000 population.
21        For purposes of this subsection (f):
22             (1)  "property"  or  "real  estate"  means  all real
23        property, whether or not improved by a structure;
24             (2)  "abandoned" means;
25                  (A)  the property has been tax delinquent for 2
26             or more years;
27                  (B)  the  property  is  unoccupied  by  persons
28             legally in possession; and
29             (3)  "unsafe" means property that presents an actual
30        or imminent threat to public health and safety caused  by
31        the release of hazardous substances; and
32             (4)  "hazardous  substances"  means  the  same as in
33        Section 3.14 of the Environmental Protection Act.
34        The corporate authorities  shall  apply  to  the  circuit
 
                            -15-              LRB9211679BDcdA
 1    court  of the county in which the property is located (i) for
 2    an order allowing the municipality to enter the property  and
 3    inspect and test substances on, in, or under the property; or
 4    (ii)  for  an  order authorizing the corporate authorities to
 5    take action with respect to remediation of  the  property  if
 6    conditions  on  the  property,  based  on  the inspection and
 7    testing authorized in paragraph (i), indicate the presence of
 8    hazardous substances or petroleum products. Remediation shall
 9    be deemed complete for purposes of paragraph (ii) above  when
10    the  property  satisfies  Tier  I,  II,  or  III  remediation
11    objectives   for   the   property's  most  recent  usage,  as
12    established by the  Environmental  Protection  Act,  and  the
13    rules  and  regulations  promulgated thereunder.  Where, upon
14    diligent search, the identity or whereabouts of the owner  or
15    owners of the property, including the lien holders of record,
16    is  not ascertainable, notice mailed to the person or persons
17    in whose name the real estate was last assessed is sufficient
18    notice under this Section.
19        The court shall grant an order authorizing testing  under
20    paragraph  (i)  above  upon a showing of preliminary evidence
21    indicating the presence or likely  presence  of  a  hazardous
22    substance  or  a  petroleum  product  or  a  release  of or a
23    substantial threat of a release of a hazardous substance or a
24    petroleum product on, in, or under abandoned  property.   The
25    preliminary  evidence  may  include,  but  is not limited to,
26    evidence of prior use, visual site inspection, or records  of
27    prior  environmental  investigations.  The testing authorized
28    by  paragraph  (i)  above   shall   include   any   type   of
29    investigation   which   is  necessary  for  an  environmental
30    professional to determine the environmental condition of  the
31    property,  including  but  not limited to performance of soil
32    borings and groundwater monitoring.  The court shall grant  a
33    remediation order under paragraph (ii) above where testing of
34    the  property  indicates that it fails to meet the applicable
 
                            -16-              LRB9211679BDcdA
 1    remediation objectives.  The hearing upon the application  to
 2    the  circuit  court shall be expedited by the court and shall
 3    be given precedence over all other suits.
 4        The cost  of  the  inspection,  testing,  or  remediation
 5    incurred  by  the municipality or by a lien holder of record,
 6    including court  costs,  attorney's  fees,  and  other  costs
 7    related  to the enforcement of this Section, is a lien on the
 8    real  estate;  except  that  in   any   instances   where   a
 9    municipality incurs costs of inspection and testing but finds
10    no hazardous substances or petroleum products on the property
11    that  present  an  actual or imminent threat to public health
12    and safety, such costs are not recoverable  from  the  owners
13    nor  are  such  costs a lien on the real estate.  The lien is
14    superior to all prior existing liens and encumbrances, except
15    taxes and any lien obtained under subsection (a) or (e),  if,
16    within  180  days  after  the  completion  of the inspection,
17    testing, or remediation, the municipality or the lien  holder
18    of  record  who  incurred  the  cost and expense shall file a
19    notice of lien for the  cost  and  expense  incurred  in  the
20    office of the recorder in the county in which the real estate
21    is located or in the office of the registrar of titles of the
22    county  if  the  real estate affected is registered under the
23    Registered Titles (Torrens) Act.
24        The notice must consist of a sworn statement setting  out
25    (i)  a  description  of  the  real  estate sufficient for its
26    identification, (ii) the amount  of  money  representing  the
27    cost  and  expense incurred, and (iii) the date or dates when
28    the cost and expense was incurred by the municipality or  the
29    lien  holder  of  record.  Upon payment of the lien amount by
30    the owner of or persons interested in the property after  the
31    notice  of  lien  has  been filed, a release of lien shall be
32    issued by the municipality, the person in whose name the lien
33    has been filed, or the assignee of the lien, and the  release
34    may  be  filed  of  record as in the case of filing notice of
 
                            -17-              LRB9211679BDcdA
 1    lien.
 2        The lien may be  enforced  under  subsection  (c)  or  by
 3    foreclosure   proceedings   as   in   the  case  of  mortgage
 4    foreclosures under Article XV of the Code of Civil  Procedure
 5    or mechanics' lien foreclosures; provided that where the lien
 6    is  enforced  by  foreclosure  under  subsection (c) or under
 7    either statute, the municipality may not proceed against  the
 8    other  assets  of  the owner or owners of the real estate for
 9    any costs that otherwise  would  be  recoverable  under  this
10    Section  but that remain unsatisfied after foreclosure except
11    where such additional  recovery  is  authorized  by  separate
12    environmental  laws.  An action to foreclose this lien may be
13    commenced at any time after the date of filing of the  notice
14    of   lien.   The   costs   of  foreclosure  incurred  by  the
15    municipality, including court  costs,  reasonable  attorney's
16    fees,  advances  to  preserve  the  property, and other costs
17    related to the enforcement of this subsection, plus statutory
18    interest, are a lien on the real estate.
19        All liens arising under  this  subsection  (f)  shall  be
20    assignable.   The  assignee  of  the lien shall have the same
21    power to enforce the lien as the assigning party, except that
22    the lien may not be enforced under subsection (c).
23        (g)  In any case where a municipality has obtained a lien
24    under subsection (a), the  municipality  may  also  bring  an
25    action  for  a  money judgment against the owner or owners of
26    the real estate in the amount of the lien in the same  manner
27    as  provided  for  bringing causes of action in Article II of
28    the Code of Civil Procedure and, upon obtaining  a  judgment,
29    file  a  judgment  lien against all of the real estate of the
30    owner or owners and enforce that  lien  as  provided  for  in
31    Article XII of the Code of Civil Procedure.
32    (Source: P.A.  91-162,  eff.  7-16-99;  91-177,  eff. 1-1-00;
33    91-357, eff.  7-29-99;  91-542,  eff.  1-1-00;  91-561,  eff.
34    1-1-00; 92-16, eff. 6-28-01.)

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