HomeMy WebLinkAboutOrdinances - MC-10-1020 - 09/20/2010 - SUBSTANDARD AND DANGEROUS BLDSORDINANCE NO. MC-10-1020
An Ordinance Amending Chapter 2.25 Administrative Adjudication
of the City of McHenry, Municipal Code, to Add Section 2.25--15,
Demolition, Repair, Enclosure or Remediation and to Revoke Sect 7-251-255 of Chapter 7
Subsection XVII Substandard and Dangerous Buildings
WHEREAS, the City of McHenry, McHenry County, Illinois, is a home rule municipality
as contemplated under Article VII, Section 6, of the Constitution of the State of Illinois, and the
passage of this Ordinance constitutes an exercise of the City's home rule powers and functions as
granted in the Constitution of the State of Illinois.
NOW, THEREFORE, BE IT ORDAINED by the CITY COUNCIL of the CITY OF
McHENRY, McHenry County, Illinois, as follows:
SECTION 1: Section 2.25-15, Parking and Standing of Vehicles and the Condition and
Use of Vehicle Equipment, Section 2.25-16, Election of Remedies, and Section 2.25-17, Fines
Applicable to all Offenses, of the City of McHenry, Municipal Code, shall be renumbered as
Sections 2.25-16, 2.25-17 and 2.25-18, consecutively, and such changes shall be made, as
needed, in Chapter 2.25 of the City of McHenry, Municipal Code.
SECTION 2; Section 2.25-15 of the City of McHenry, Municipal Code, shall read as
follows:
Sec. 2.25-15 Demolition, Repair, Enclosure or Remediation.
(A) Pursuant to 65 ILCS 5/11-31-1, the City has the authority to demolish, repair or enclose
or cause the demolition, repair or enclosure of dangerous and unsafe buildings or
uncompleted and abandoned buildings within the City and may remove or cause the
removal of garbage, debris and other hazardous, noxious or unhealthy substances or
materials from those buildings. When such action is warranted, the director is authorized,
empowered and directed to:
(1) Apply to the hearing officer:
(a) 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 to do so, have failed to put the
building in a safe condition or to demolish it or
(b) 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 hearing officer 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.
(2) The hearing upon the application shall be expedited by the hearing officer and
shall be given precedence over all other suits.
(3) The cost of the demolition, repair, enclosure or removal incurred by the City, by
an intervenor, or by a lien holder of record, including hearing costs, attorneys'
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
City, 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 McHenry County Recorder of Deeds.
(4) The notice must consist of a sworn statement setting out:
(a) A description of the real estate sufficient for its identification,
(b) The amount of money representing the cost and expense incurred, and
(c) The date or dates when the cost and expense was incurred by the City, 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
City, 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.
(5) Unless the lien is enforced under Section 2.25-15(C), the lien may be enforced by
foreclosure proceedings as in the case of mortgage foreclosures under 735 H'CS
5/1101 et seq., 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 City, including hearing costs, reasonable
attorneys' fees, advances to preserve the property, and other costs related to the
enforcement of this Section, plus statutory interest, are a lien on the real estate and
are: recoverable by the City from the owner or owners of the real estate.
(6) All liens arising under this Section 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 Section 2.25-15(B).
(7) If the City determines that any dangerous and unsafe building or uncompleted and
abandoned building within the City fulfills the requirements for an action by the
City, under 310 ILCS 50/1 et seq., the City may petition under that act in a
proceeding brought under this Section.
(B) In any case where the City has obtained a lien it may enforce the lien pursuant to Section
2.25-14.
(C) In addition to any other remedy provided by law, the City may petition the 22°d Judicial
Circuit Court to have property declared abandoned under this Section 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 for reasons specified in the
petition.
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 '735 ILCS 5/2-206 as in other cases affecting property.
The City, however, may proceed under this Section in a proceeding brought under
Section 2.25-15(A). Notice of the petition shall be served in person or by certified or
registered mail on all persons who were served notice under Section 2.25-15(A).
If the City proves that the conditions described in this Section exist and (i) 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, or (ii) if the owner of record or
the beneficiary of a land trust, if title to the property is held by an Illinois land trust,
enters an appearance and specifically waives his or her rights under this Section, the court
shall declare the property abandoned. Notwithstanding any waiver, the City may move to
dismiss its petition at any time. In addition, any waiver in a proceeding under this Section
does not serve as a waiver for any other proceeding under law or equity.
If that determination is made, notice shall be sent in person or 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 City unless, within 30 days of the notice, the
owner of record or 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, or unless the owner of record enters an appearance and proves that the owner
does not intend to abandon the property.
If the owner of record enters an appearance in the action within the 30-day period, but
does not at that time file with the court a request to demolish the dangerous or unsafe
building or to put the building in safe condition, or specifically waive his or her rights
under this Section, the court shall vacate its order declaring the property abandoned if it
determines that the owner of record does not intend to abandon the property. In that case,
the City may amend its complaint in order to initiate proceedings under Section 2.25-
15(A), or it may request that the court order the owner to demolish the building or repair
the dangerous or unsafe conditions of the building alleged in the petition or seek the
appointment of a receiver or other equitable relief to correct the conditions at the
property. The powers and rights of a receiver appointed under this Section shall include
all of the powers and rights of a receiver appointed under 65 ILCS 5/11-31-2.
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 owner of record if the owner filed a request or, if the owner did not, the
person with the lien or other interest of the highest priority.
If the requesting party (other than the owner of record) proves to the court that the
building has been demolished or put in a safe condition in accordance with the local
safety codes 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 City of all costs incurred by
the City 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 35 ILCS 200/1-1 et seq.,
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 the requesting party is
the owner of record and proves to the court that the building has been demolished or put
in a safe condition in accordance with the local safety codes within the period of time
granted by the court, the court shall dismiss the proceeding under this Section.
If the owner of record has not entered an appearance and proven that the owner did not
intend to abandon the property, and 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 City may petition the court to
issue a judicial deed for the property to the City. 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, and shall extinguish the rights and interests of any and all
holders of a bona fide certificate of purchase of the property for delinquent taxes. Any
such bona fide certificate of purchase holder shall be entitled to a sale in error as
prescribed under 35 ILCS 200/1-1 et seq.).
(D) The City may use the provisions of this Section to expedite the removal of certain
buildings that are a continuing hazard in the City.
If a residential or commercial building is 3 stories or less in height as defined by the
City's building code, and the Director of Construction and Neighborhood Services
determines that the building is open and vacant and an immediate and continuing hazard
to the City, then the Director of Construction and Neighborhood Services 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 City 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 City.
Not later than 30 days following the posting of the notice, the City shall do all of the
following:
(1) Cause to be sent, by certified mail, return receipt requested, a Notice to Remediate
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 City 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 City, 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 City 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.
(3) Cause to be recorded the Notice to Remediate mailed in the office of the
McHenry County Recorder of Deeds.
Any person or persons with a current legal or equitable interest in the property objecting
to the proposed actions of the Director of Construction and Neighborhood Services may
file his or her objection in an appropriate form in the Office of Administrative
Adjudication.
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 Director of
Construction and Neighborhood Services 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 City 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
Section within a 120-day period following the date of the mailing of the notice if the
Director of Construction and Neighborhood Services 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 City proceeds with any of the actions authorized by this
Section, any person with a legal or equitable interest in the property has sought a hearing
under this Section before the Office of Administrative Adjudication and has served a
copy of the; complaint on the City Administrator, then the City shall not proceed with the
demolition, repair or enclosure or removal of garbage, debris or other substances until the
hearing officer determines that that action is necessary to remedy the hazard and issues an
order authorizing the City to do so. If the hearing officer dismisses the action for want of
prosecution, the City must send the objector a copy of the dismissal order and a letter
stating that the demolition, repair enclosure or removal of garbage, debris or other
substances will proceed unless, within 30 days after the copy of the order and the letter
are mailed, the objector moves to vacate the dismissal and serves a copy of the motion on
the City Administrator. Notwithstanding any other law to the contrary, if the objector
does not file a motion and give the required notice, if the motion is denied by the hearing
officer, or if the action is again dismissed for want of prosecution, then the dismissal is
with prejudice and the demolition, repair, enclosure or removal may proceed forthwith.
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
Section, the City 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
McHenry County Recorder of Deeds. This lien has priority over the interests of those
parties named in the Notice to Remediate mailed under Section 2.25-15(D)(1), but not
over the interests of third party purchasers or encumbrancers for value who obtained their
interests in the property before obtaining actual or constructive notice of the lien.
The notice of lien shall consist of a sworn statement setting forth:
(1) A description of the real estate, such as the address or other description of the
property, sufficient for its identification;
(2) The expenses incurred by the City in undertaking the remedial actions authorized
under this Section;
(3) The date or dates the expenses were incurred by the City,
(4) A statement by the Director of Construction and Neighborhood Services that the
building was open and vacant and constituted an immediate and continuing
hazard to the community;
(5) A statement by the Director of Construction and Neighborhood Services 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
Section; and
(6) A statement as to when and where the notice was published.
The lien authorized by this Section may thereafter be released or enforced by the City as
provided in Section 2.25-15(A).
(E) The City may remove or cause the removal of, or otherwise environmentally remediate
hazardous substances and petroleum products on, in, or under any abandoned and unsafe
property within the City. In addition, where preliminary evidence indicates the presence
or likely presence of a hazardous substance or a petroleum product or a release or a
substantial threat of a release of a hazardous substance or a petroleum product on, in, or
under the property, the City may inspect the property and test for the presence or release
of hazardous substances and petroleum products.
For purposes of this Section:
(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 415 IL,CS 5/3.215.
The code administrator shall apply to the hearing officer (i) for an order allowing the
entry to the property and inspect and test substances on, in, or under the property; or (ii)
for an order authorizing the code administrator 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 or petroleum
products. 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 415 ILCS 5/1 et seq., 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 hearing officer 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 petroleum product or a release of or a substantial threat of a
release of a hazardous substance or a petroleum product 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 hearing officer 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 hearing officer shall be
expedited and shall be given precedence over all other suits.
The cost of the inspection, testing or remediation incurred by the City 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
the City incurs costs of inspection and testing but finds no hazardous substances or
petroleum products 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 Section 2.25-15(A) or (D), if, within 180 days after the
completion of the inspection, testing or remediation, the City 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 McHenry County Recorder of Deeds.
The notice must consist of a sworn statement setting out (i) a description of the real estate
sufficient fc)r 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 City 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 City, 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 Section 2.25-15(B) or by foreclosure proceedings as in
the case of mortgage foreclosures under 735 ILCS 5/1101 et seq., or mechanics' lien
foreclosures; provided that where the lien is enforced by foreclosure under Section 2.25-
15(B) or under either statute, the City 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 City, including court costs, reasonable attorney's
fees, advances to preserve the property, and other costs related to the enforcement of this
Section, plus statutory interest, are a lien on the real estate.
All liens arising under this Section 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 Section 2.25-15(B).
(F) In any case where the City has obtained a lien under Section 2.25-15(A), the City may
also bring an action for a money judgment against the owner or owners of the real estate
in the amount of the lien in the same manner as provided for bringing causes of action in
735 ILCS 5/2-101 and, upon obtaining a judgment, file a judgment lien against all of the
real estate of the owner or owners and enforce that lien as provided for in 735 ILCS 5/2-
101.
SECTION 3: To revoke Sections 7-251-255 of Chapter 7 Subsection XVII Substandard
and Dangerous Buildings of the McHenry Municipal Code.
SECTION 4: If any section, paragraph, subdivision, clause, sentence or provision of this
Ordinance shall be adjudged by any Court of competent jurisdiction to be invalid, such judgment
shall not affect, impair, invalidate or nullify the remainder thereof, which remainder shall remain
and continue in full force and effect.
SECTION 5: All ordinances or parts of ordinances in conflict herewith are hereby
repealed to the extent of such conflict.
SECTION 6: This Ordinance shall be in full force and effect upon its passage, approval
and publication in pamphlet form (which publication is hereby authorized) as provided by law.
Passed and approved this 20a' day of September, 2010.
Voting Aye: SANTI, GLAB, SCHAEFER, BLAKE, WIMMER, PETERSON, CONDON
Voting Nay: NONE
Not Voting: NONE
Absent: NONE
Abstain: NONE
APPROVED:
7 7
M yor Susan E. Low
(SEAL)
ATTEST:, \ c
6ity Jerk J ice . Jones