Public Act 90-0393 of the 90th General Assembly
Public Act 90-0393
HB1735 Enrolled LRB9002402PTcw
AN ACT concerning environmental clean-up.
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
Section 5. The Illinois Municipal Code is amended by
changing the Article II, Division 31 heading and Section
11-31-1 as follows:
(65 ILCS 5/Art. II, Div. 31 heading)
Division 31. Unsafe Property Buildings.
(65 ILCS 5/11-31-1) (from Ch. 24, par. 11-31-1)
Sec. 11-31-1. Demolition, repair, or enclosure, or
remediation.
(a) The corporate authorities of each municipality may
demolish, repair, or enclose or cause the demolition, repair,
or enclosure of dangerous and unsafe buildings or uncompleted
and abandoned buildings within the territory of the
municipality and may remove or cause the removal of garbage,
debris, and other hazardous, noxious, or unhealthy substances
or materials from those buildings. In any county having
adopted by referendum or otherwise a county health department
as provided by Division 5-25 of the Counties Code or its
predecessor, the county board of that county may exercise
those powers with regard to dangerous and unsafe buildings or
uncompleted and abandoned buildings within the territory of
any city, village, or incorporated town having less than
50,000 population.
The corporate authorities shall apply to the circuit
court of the county in which the building is located (i) for
an order authorizing action to be taken with respect to a
building if the owner or owners of the building, including
the lien holders of record, after at least 15 days' written
notice by mail so to do, have failed to put the building in a
safe condition or to demolish it or (ii) for an order
requiring the owner or owners of record to demolish, repair,
or enclose the building or to remove garbage, debris, and
other hazardous, noxious, or unhealthy substances or
materials from the building. It is not a defense to the
cause of action that the building is boarded up or otherwise
enclosed, although the court may order the defendant to have
the building boarded up or otherwise enclosed. Where, upon
diligent search, the identity or whereabouts of the owner or
owners of the building, including the lien holders of record,
is not ascertainable, notice mailed to the person or persons
in whose name the real estate was last assessed is sufficient
notice under this Section.
The hearing upon the application to the circuit court
shall be expedited by the court and shall be given precedence
over all other suits. Any person entitled to bring an action
under subsection (b) shall have the right to intervene in an
action brought under this Section.
The cost of the demolition, repair, enclosure, or removal
incurred by the municipality, by an intervenor, or by a lien
holder of record, including court costs, attorney's fees, and
other costs related to the enforcement of this Section, is
recoverable from the owner or owners of the real estate or
the previous owner or both if the property was transferred
during the 15 day notice period and is a lien on the real
estate; the lien is superior to all prior existing liens and
encumbrances, except taxes, if, within 180 days after the
repair, demolition, enclosure, or removal, the municipality,
the lien holder of record, or the intervenor who incurred the
cost and expense shall file a notice of lien for the cost and
expense incurred in the office of the recorder in the county
in which the real estate is located or in the office of the
registrar of titles of the county if the real estate affected
is registered under the Registered Titles (Torrens) Act.
The notice must consist of a sworn statement setting out
(1) a description of the real estate sufficient for its
identification, (2) the amount of money representing the cost
and expense incurred, and (3) the date or dates when the cost
and expense was incurred by the municipality, the lien holder
of record, or the intervenor. Upon payment of the cost and
expense by the owner of or persons interested in the property
after the notice of lien has been filed, the lien shall be
released by the municipality, the person in whose name the
lien has been filed, or the assignee of the lien, and the
release may be filed of record as in the case of filing
notice of lien. Unless the lien is enforced under subsection
(c), the lien may be enforced by foreclosure proceedings as
in the case of mortgage foreclosures under Article XV of the
Code of Civil Procedure or mechanics' lien foreclosures. An
action to foreclose this lien may be commenced at any time
after the date of filing of the notice of lien. The costs of
foreclosure incurred by the municipality, including court
costs, reasonable attorney's fees, advances to preserve the
property, and other costs related to the enforcement of this
subsection, plus statutory interest, are a lien on the real
estate and are recoverable by the municipality from the owner
or owners of the real estate.
All liens arising under this subsection (a) shall be
assignable. The assignee of the lien shall have the same
power to enforce the lien as the assigning party, except that
the lien may not be enforced under subsection (c).
If the appropriate official of any municipality
determines that any dangerous and unsafe building or
uncompleted and abandoned building within its territory
fulfills the requirements for an action by the municipality
under the Abandoned Housing Rehabilitation Act, the
municipality may petition under that Act in a proceeding
brought under this subsection.
(b) Any owner or tenant of real property within 1200
feet in any direction of any dangerous or unsafe building
located within the territory of a municipality with a
population of 500,000 or more may file with the appropriate
municipal authority a request that the municipality apply to
the circuit court of the county in which the building is
located for an order permitting the demolition, removal of
garbage, debris, and other noxious or unhealthy substances
and materials from, or repair or enclosure of the building in
the manner prescribed in subsection (a) of this Section. If
the municipality fails to institute an action in circuit
court within 90 days after the filing of the request, the
owner or tenant of real property within 1200 feet in any
direction of the building may institute an action in circuit
court seeking an order compelling the owner or owners of
record to demolish, remove garbage, debris, and other noxious
or unhealthy substances and materials from, repair or enclose
or to cause to be demolished, have garbage, debris, and other
noxious or unhealthy substances and materials removed from,
repaired, or enclosed the building in question. A private
owner or tenant who institutes an action under the preceding
sentence shall not be required to pay any fee to the clerk of
the circuit court. The cost of repair, removal, demolition,
or enclosure shall be borne by the owner or owners of record
of the building. In the event the owner or owners of record
fail to demolish, remove garbage, debris, and other noxious
or unhealthy substances and materials from, repair, or
enclose the building within 90 days of the date the court
entered its order, the owner or tenant who instituted the
action may request that the court join the municipality as a
party to the action. The court may order the municipality to
demolish, remove materials from, repair, or enclose the
building, or cause that action to be taken upon the request
of any owner or tenant who instituted the action or upon the
municipality's request. The municipality may file, and the
court may approve, a plan for rehabilitating the building in
question. A court order authorizing the municipality to
demolish, remove materials from, repair, or enclose a
building, or cause that action to be taken, shall not
preclude the court from adjudging the owner or owners of
record of the building in contempt of court due to the
failure to comply with the order to demolish, remove garbage,
debris, and other noxious or unhealthy substances and
materials from, repair, or enclose the building.
If a municipality or a person or persons other than the
owner or owners of record pay the cost of demolition, removal
of garbage, debris, and other noxious or unhealthy substances
and materials, repair, or enclosure pursuant to a court
order, the cost, including court costs, attorney's fees, and
other costs related to the enforcement of this subsection, is
recoverable from the owner or owners of the real estate and
is a lien on the real estate; the lien is superior to all
prior existing liens and encumbrances, except taxes, if,
within 180 days after the repair, removal, demolition, or
enclosure, the municipality or the person or persons who paid
the costs of demolition, removal, repair, or enclosure shall
file a notice of lien of the cost and expense incurred in the
office of the recorder in the county in which the real estate
is located or in the office of the registrar of the county if
the real estate affected is registered under the Registered
Titles (Torrens) Act. The notice shall be in a form as is
provided in subsection (a). An owner or tenant who
institutes an action in circuit court seeking an order to
compel the owner or owners of record to demolish, remove
materials from, repair, or enclose any dangerous or unsafe
building, or to cause that action to be taken under this
subsection may recover court costs and reasonable attorney's
fees for instituting the action from the owner or owners of
record of the building. Upon payment of the costs and
expenses by the owner of or a person interested in the
property after the notice of lien has been filed, the lien
shall be released by the municipality or the person in whose
name the lien has been filed or his or her assignee, and the
release may be filed of record as in the case of filing a
notice of lien. Unless the lien is enforced under subsection
(c), the lien may be enforced by foreclosure proceedings as
in the case of mortgage foreclosures under Article XV of the
Code of Civil Procedure or mechanics' lien foreclosures. An
action to foreclose this lien may be commenced at any time
after the date of filing of the notice of lien. The costs of
foreclosure incurred by the municipality, including court
costs, reasonable attorneys' fees, advances to preserve the
property, and other costs related to the enforcement of this
subsection, plus statutory interest, are a lien on the real
estate and are recoverable by the municipality from the owner
or owners of the real estate.
All liens arising under the terms of this subsection (b)
shall be assignable. The assignee of the lien shall have the
same power to enforce the lien as the assigning party, except
that the lien may not be enforced under subsection (c).
(c) In any case where a municipality has obtained a lien
under subsection (a), or (b), or (f), the municipality may
enforce the lien under this subsection (c) in the same
proceeding in which the lien is authorized.
A municipality desiring to enforce a lien under this
subsection (c) shall petition the court to retain
jurisdiction for foreclosure proceedings under this
subsection. Notice of the petition shall be served, by
certified or registered mail, on all persons who were served
notice under subsection (a), or (b), or (f). The court shall
conduct a hearing on the petition not less than 15 days after
the notice is served. If the court determines that the
requirements of this subsection (c) have been satisfied, it
shall grant the petition and retain jurisdiction over the
matter until the foreclosure proceeding is completed. The
costs of foreclosure incurred by the municipality, including
court costs, reasonable attorneys' fees, advances to preserve
the property, and other costs related to the enforcement of
this subsection, plus statutory interest, are a lien on the
real estate and are recoverable by the municipality from the
owner or owners of the real estate. If the court denies the
petition, the municipality may enforce the lien in a separate
action as provided in subsection (a), or (b), or (f).
All persons designated in Section 15-1501 of the Code of
Civil Procedure as necessary parties in a mortgage
foreclosure action shall be joined as parties before issuance
of an order of foreclosure. Persons designated in Section
15-1501 of the Code of Civil Procedure as permissible parties
may also be joined as parties in the action.
The provisions of Article XV of the Code of Civil
Procedure applicable to mortgage foreclosures shall apply to
the foreclosure of a lien under this subsection (c), except
to the extent that those provisions are inconsistent with
this subsection. For purposes of foreclosures of liens
under this subsection, however, the redemption period
described in subsection (b) of Section 15-1603 of the Code of
Civil Procedure shall end 60 days after the date of entry of
the order of foreclosure.
(d) In addition to any other remedy provided by law, the
corporate authorities of any municipality may petition the
circuit court to have property declared abandoned under this
subsection (d) if:
(1) the property has been tax delinquent for 2 or
more years or bills for water service for the property
have been outstanding for 2 or more years;
(2) the property is unoccupied by persons legally
in possession; and
(3) the property contains a dangerous or unsafe
building.
All persons having an interest of record in the property,
including tax purchasers and beneficial owners of any
Illinois land trust having title to the property, shall be
named as defendants in the petition and shall be served with
process. In addition, service shall be had under Section
2-206 of the Code of Civil Procedure as in other cases
affecting property.
The municipality, however, may proceed under this
subsection in a proceeding brought under subsection (a) or
(b). Notice of the petition shall be served by certified or
registered mail on all persons who were served notice under
subsection (a) or (b).
If the municipality proves that the conditions described
in this subsection exist and the owner of record of the
property does not enter an appearance in the action, or, if
title to the property is held by an Illinois land trust, if
neither the owner of record nor the owner of the beneficial
interest of the trust enters an appearance, the court shall
declare the property abandoned.
If that determination is made, notice shall be sent by
certified or registered mail to all persons having an
interest of record in the property, including tax purchasers
and beneficial owners of any Illinois land trust having title
to the property, stating that title to the property will be
transferred to the municipality unless, within 30 days of the
notice, the owner of record enters an appearance in the
action, or unless any other person having an interest in the
property files with the court a request to demolish the
dangerous or unsafe building or to put the building in safe
condition.
If the owner of record enters an appearance in the action
within the 30 day period, the court shall vacate its order
declaring the property abandoned. In that case, the
municipality may amend its complaint in order to initiate
proceedings under subsection (a).
If a request to demolish or repair the building is filed
within the 30 day period, the court shall grant permission to
the requesting party to demolish the building within 30 days
or to restore the building to safe condition within 60 days
after the request is granted. An extension of that period
for up to 60 additional days may be given for good cause. If
more than one person with an interest in the property files a
timely request, preference shall be given to the person with
the lien or other interest of the highest priority.
If the requesting party proves to the court that the
building has been demolished or put in a safe condition
within the period of time granted by the court, the court
shall issue a quitclaim judicial deed for the property to the
requesting party, conveying only the interest of the owner of
record, upon proof of payment to the municipality of all
costs incurred by the municipality in connection with the
action, including but not limited to court costs, attorney's
fees, administrative costs, the costs, if any, associated
with building enclosure or removal, and receiver's
certificates. The interest in the property so conveyed shall
be subject to all liens and encumbrances on the property. In
addition, if the interest is conveyed to a person holding a
certificate of purchase for the property under the Property
Tax Code, the conveyance shall be subject to the rights of
redemption of all persons entitled to redeem under that Act,
including the original owner of record.
If no person with an interest in the property files a
timely request or if the requesting party fails to demolish
the building or put the building in safe condition within the
time specified by the court, the municipality may petition
the court to issue a judicial deed for the property to the
municipality. A conveyance by judicial deed shall operate to
extinguish all existing ownership interests in, liens on, and
other interest in the property, including tax liens.
(e) Each municipality may use the provisions of this
subsection to expedite the removal of certain buildings that
are a continuing hazard to the community in which they are
located.
If a residential building is 2 stories or less in height
as defined by the municipality's building code, and the
corporate official designated to be in charge of enforcing
the municipality's building code determines that the building
is open and vacant and an immediate and continuing hazard to
the community in which the building is located, then the
official shall be authorized to post a notice not less than 2
feet by 2 feet in size on the front of the building. The
notice shall be dated as of the date of the posting and shall
state that unless the building is demolished, repaired, or
enclosed, and unless any garbage, debris, and other
hazardous, noxious, or unhealthy substances or materials are
removed so that an immediate and continuing hazard to the
community no longer exists, then the building may be
demolished, repaired, or enclosed, or any garbage, debris,
and other hazardous, noxious, or unhealthy substances or
materials may be removed, by the municipality.
Not later than 30 days following the posting of the
notice, the municipality shall do both of the following:
(1) Cause to be sent, by certified mail, return
receipt requested, a notice to all owners of record of
the property, the beneficial owners of any Illinois land
trust having title to the property, and all lienholders
of record in the property, stating the intent of the
municipality to demolish, repair, or enclose the building
or remove any garbage, debris, or other hazardous,
noxious, or unhealthy substances or materials if that
action is not taken by the owner or owners.
(2) Cause to be published, in a newspaper published
or circulated in the municipality where the building is
located, a notice setting forth (i) the permanent tax
index number and the address of the building, (ii) a
statement that the property is open and vacant and
constitutes an immediate and continuing hazard to the
community, and (iii) a statement that the municipality
intends to demolish, repair, or enclose the building or
remove any garbage, debris, or other hazardous, noxious,
or unhealthy substances or materials if the owner or
owners or lienholders of record fail to do so. This
notice shall be published for 3 consecutive days.
A person objecting to the proposed actions of the
corporate authorities may file his or her objection in an
appropriate form in a court of competent jurisdiction.
If the building is not demolished, repaired, or enclosed,
or the garbage, debris, or other hazardous, noxious, or
unhealthy substances or materials are not removed, within 30
days of mailing the notice to the owners of record, the
beneficial owners of any Illinois land trust having title to
the property, and all lienholders of record in the property,
or within 30 days of the last day of publication of the
notice, whichever is later, the corporate authorities shall
have the power to demolish, repair, or enclose the building
or to remove any garbage, debris, or other hazardous,
noxious, or unhealthy substances or materials.
The municipality may proceed to demolish, repair, or
enclose a building or remove any garbage, debris, or other
hazardous, noxious, or unhealthy substances or materials
under this subsection within a 120-day period following the
date of the mailing of the notice if the appropriate official
determines that the demolition, repair, enclosure, or removal
of any garbage, debris, or other hazardous, noxious, or
unhealthy substances or materials is necessary to remedy the
immediate and continuing hazard. If, however, before the
municipality proceeds with any of the actions authorized by
this subsection, any person has sought a hearing under this
subsection before a court and has served a copy of the
complaint on the chief executive officer of the municipality,
then the municipality shall not proceed with the demolition,
repair, enclosure, or removal of garbage, debris, or other
substances until the court determines that that action is
necessary to remedy the hazard and issues an order
authorizing the municipality to do so.
Following the demolition, repair, or enclosure of a
building, or the removal of garbage, debris, or other
hazardous, noxious, or unhealthy substances or materials
under this subsection, the municipality may file a notice of
lien against the real estate for the cost of the demolition,
repair, enclosure, or removal within 180 days after the
repair, demolition, enclosure, or removal occurred, for the
cost and expense incurred, in the office of the recorder in
the county in which the real estate is located or in the
office of the registrar of titles of the county if the real
estate affected is registered under the Registered Titles
(Torrens) Act. The notice of lien shall consist of a sworn
statement setting forth (i) a description of the real estate,
such as the address or other description of the property,
sufficient for its identification; (ii) the expenses incurred
by the municipality in undertaking the remedial actions
authorized under this subsection; (iii) the date or dates the
expenses were incurred by the municipality; (iv) a statement
by the corporate official responsible for enforcing the
building code that the building was open and vacant and
constituted an immediate and continuing hazard to the
community; (v) a statement by the corporate official that the
required sign was posted on the building, that notice was
sent by certified mail to the owners of record, and that
notice was published in accordance with this subsection; and
(vi) a statement as to when and where the notice was
published. The lien authorized by this subsection may
thereafter be released or enforced by the municipality as
provided in subsection (a).
(f) The corporate authorities of each municipality may
remove or cause the removal of, or otherwise environmentally
remediate hazardous substances on, in, or under any abandoned
and unsafe property within the territory of a municipality.
In addition, where preliminary evidence indicates the
presence or likely presence of a hazardous substance or a
release or a substantial threat of a release of a hazardous
substance on, in, or under the property, the corporate
authorities of the municipality may inspect the property and
test for the presence or release of hazardous substances. In
any county having adopted by referendum or otherwise a county
health department as provided by Division 5-25 of the
Counties Code or its predecessor, the county board of that
county may exercise the above-described powers with regard to
property within the territory of any city, village, or
incorporated town having less than 50,000 population.
For purposes of this subsection (f):
(1) "property" or "real estate" means all real
property, whether or not improved by a structure;
(2) "abandoned" means;
(A) the property has been tax delinquent for 2
or more years;
(B) the property is unoccupied by persons
legally in possession; and
(3) "unsafe" means property that presents an actual
or imminent threat to public health and safety caused by
the release of hazardous substances; and
(4) "hazardous substances" means the same as in
Section 3.14 of the Environmental Protection Act.
The corporate authorities shall apply to the circuit
court of the county in which the property is located (i) for
an order allowing the municipality to enter the property and
inspect and test substances on, in, or under the property; or
(ii) for an order authorizing the corporate authorities to
take action with respect to remediation of the property if
conditions on the property, based on the inspection and
testing authorized in paragraph (i), indicate the presence of
hazardous substances. Remediation shall be deemed complete
for purposes of paragraph (ii) above when the property
satisfies Tier I, II, or III remediation objectives for the
property's most recent usage, as established by the
Environmental Protection Act, and the rules and regulations
promulgated thereunder. Where, upon diligent search, the
identity or whereabouts of the owner or owners of the
property, including the lien holders of record, is not
ascertainable, notice mailed to the person or persons in
whose name the real estate was last assessed is sufficient
notice under this Section.
The court shall grant an order authorizing testing under
paragraph (i) above upon a showing of preliminary evidence
indicating the presence or likely presence of a hazardous
substance or a release of or a substantial threat of a
release of a hazardous substance on, in, or under abandoned
property. The preliminary evidence may include, but is not
limited to, evidence of prior use, visual site inspection, or
records of prior environmental investigations. The testing
authorized by paragraph (i) above shall include any type of
investigation which is necessary for an environmental
professional to determine the environmental condition of the
property, including but not limited to performance of soil
borings and groundwater monitoring. The court shall grant a
remediation order under paragraph (ii) above where testing of
the property indicates that it fails to meet the applicable
remediation objectives. The hearing upon the application to
the circuit court shall be expedited by the court and shall
be given precedence over all other suits.
The cost of the inspection, testing, or remediation
incurred by the municipality or by a lien holder of record,
including court costs, attorney's fees, and other costs
related to the enforcement of this Section, is a lien on the
real estate; except that in any instances where a
municipality incurs costs of inspection and testing but finds
no hazardous substances on the property that present an
actual or imminent threat to public health and safety, such
costs are not recoverable from the owners nor are such costs
a lien on the real estate. The lien is superior to all prior
existing liens and encumbrances, except taxes and any lien
obtained under subsection (a) or (e), if, within 180 days
after the completion of the inspection, testing, or
remediation, the municipality or the lien holder of record
who incurred the cost and expense shall file a notice of lien
for the cost and expense incurred in the office of the
recorder in the county in which the real estate is located or
in the office of the registrar of titles of the county if the
real estate affected is registered under the Registered
Titles (Torrens) Act.
The notice must consist of a sworn statement setting out
(i) a description of the real estate sufficient for its
identification, (ii) the amount of money representing the
cost and expense incurred, and (iii) the date or dates when
the cost and expense was incurred by the municipality or the
lien holder of record. Upon payment of the lien amount by
the owner of or persons interested in the property after the
notice of lien has been filed, a release of lien shall be
issued by the municipality, the person in whose name the lien
has been filed, or the assignee of the lien, and the release
may be filed of record as in the case of filing notice of
lien.
The lien may be enforced under subsection (c) or by
foreclosure proceedings as in the case of mortgage
foreclosures under Article XV of the Code of Civil Procedure
or mechanics' lien foreclosures; provided that where the lien
is enforced by foreclosure under subsection (c) or under
either statute, the municipality may not proceed against the
other assets of the owner or owners of the real estate for
any costs that otherwise would be recoverable under this
Section but that remain unsatisfied after foreclosure except
where such additional recovery is authorized by separate
environmental laws. An action to foreclose this lien may be
commenced at any time after the date of filing of the notice
of lien. The costs of foreclosure incurred by the
municipality, including court costs, reasonable attorney's
fees, advances to preserve the property, and other costs
related to the enforcement of this subsection, plus statutory
interest, are a lien on the real estate.
All liens arising under this subsection (f) shall be
assignable. The assignee of the lien shall have the same
power to enforce the lien as the assigning party, except that
the lien may not be enforced under subsection (c).
(Source: P.A. 88-646, eff. 1-1-95; 88-658, eff. 1-1-95;
88-670, eff. 12-2-94; 89-235, eff. 8-4-95; 89-303, eff.
1-1-96.)
Section 10. The Illinois Code of Civil Procedure is
amended by changing Section 7-119 as follows:
(735 ILCS 5/7-119) (from Ch. 110, par. 7-119)
Sec. 7-119. Admissibility of evidence. Evidence is
admissible as to (1) any benefit to the landowner that will
result from the public improvement for which the eminent
domain proceedings were instituted; (2) any unsafe,
unsanitary, substandard or other illegal condition, use or
occupancy of the property, including any violation of any
environmental law or regulation; (3) the effect of such
condition on income from or the fair market value of the
property; and (4) the reasonable cost of causing the property
to be placed in a legal condition, use or occupancy,
including compliance with environmental laws and regulations.
Such evidence is admissible notwithstanding the absence of
any official action taken to require the correction or
abatement of such illegal condition, use or occupancy.
(Source: P.A. 82-280.)