SB3564 96TH GENERAL ASSEMBLY

LRB096 19010 RLJ 34399 b

96TH GENERAL ASSEMBLY
State of Illinois
2009 and 2010
SB3564

Introduced 2/10/2010, by Sen. William R. Haine

SYNOPSIS AS INTRODUCED:

See Index

Amends the Illinois Municipal Code. In provisions concerning sanitation code violations, provides that a violation notice and report form shall state that if compliance cannot be completed prior to the hearing date, then the respondent shall provide to the sanitation inspector a proposed date by which the violations will be corrected. Provides that, if a municipality gives notice of a sanitation violation by mail, then the municipality shall send a copy of the violation notice and report form to the address appearing on the property tax records. Provides that it is an affirmative defense to a sanitation code violation if the property or portion of the property where the violation occurred is under the control of a lessee or contract buyer responsible for maintaining the property and the leasehold interest or agreement for deed is being terminated. In provisions concerning nuisance liens for (i) cutting and removing neglected weeds, grass, trees, and bushes, (ii) controlling pests, (iii) removing infected trees, and (iv) removing garbage and refuse, defines "reasonable notice" of a nuisance violation. Includes refuse in the provisions concerning the removal of garbage from private property located within the municipality. In provisions authorizing municipalities to provide pest-control activities on private property located within the municipality, removes undesirable arthropods and mice from the definition of "pests". Makes other changes. Effective immediately.

FISCAL NOTE ACT MAY APPLY

A BILL FOR

AN ACT concerning local government.

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 Sections 11-19.2-4, 11-19.2-5, 11-19.2-7, 11-20-7, 11-20-8, 11-20-12, 11-20-13, and 11-20-15.1 as follows:

(65 ILCS 5/11-19.2-4) (from Ch. 24, par. 11-19.2-4)

Sec. 11-19.2-4. Instituting code hearing proceedings. When a sanitation inspector observes or otherwise discovers a code violation, he or she shall note the violation on a violation notice and report form, indicating the name and address of the respondent, if known, the name, address and State vehicle registration number of the waste hauler who deposited the waste, if applicable, the type and nature of the violation, the date and time the violation was observed, the names of witnesses to the violation, and the address of the location or property where the violation is observed.

The violation notice and report form shall contain a file number and a hearing date noted by the sanitation inspector in the blank spaces provided for that purpose on the form. The violation notice and report form shall state that if the respondent cannot comply with the violation notice and report form prior to the hearing date, then the respondent shall provide to the sanitation inspector a proposed date by which the violations will be corrected. The violation notice and report form shall state that failure to appear at the hearing on the date indicated may result in a determination of liability for the cited violation and the imposition of fines and assessment of costs as provided by the applicable municipal ordinance. The violation notice and report form shall also state that upon a determination of liability and the exhaustion or failure to exhaust procedures for judicial review, any unpaid fines or costs imposed will constitute a debt due and owing the municipality.

A copy of the violation notice and report form shall be served upon the respondent either personally or by first class mail, postage prepaid, or by certified mail, and sent to the address of the respondent and to the address that appears on the property tax records. If the municipality has an ordinance requiring all or certain property owners to register with the municipality, service may be made on the respondent property owner by mailing the violation notice and report to the owner's address registered with the municipality. If the name of the respondent property owner cannot be ascertained or if service on such respondent cannot be made by mail, service may be made on the respondent property owner by posting a copy of the violation notice and report form in a prominent place upon the property where the violation is found, not less than 10 days before the hearing is scheduled.

(Source: P.A. 86-1364.)

(65 ILCS 5/11-19.2-5) (was 65 ILCS 5/19.2-5)

Sec. 11-19.2-5. Subpoenas - Defaults. At any time prior to the hearing date the hearing officer assigned to hear the case may, at the request of the sanitation inspector or the attorney for the municipality, or the respondent or his or her attorney, issue subpoenas directing witnesses to appear and give testimony at the hearing. If on the date set for hearing the respondent or his or her attorney fails to appear and the sanitation inspector provides evidence of respondent's receipt of notice, the hearing officer may find the respondent in default and shall proceed with the hearing and accept evidence relating to the existence of a code violation.

(Source: P.A. 95-331, eff. 8-21-07.)

(65 ILCS 5/11-19.2-7) (from Ch. 24, par. 11-19.2-7)

Sec. 11-19.2-7. Hearing - Evidence. The hearing officer shall preside at the hearing, shall hear testimony and accept any evidence relevant to the existence or non-existence of a code violation upon the property indicated. The sanitation inspector's signed violation notice and report form shall be prima facie evidence of the existence of the code violation described therein. It is an affirmative defense to a code violation under this Division if the property or portion of the property where the violation occurred is under the control of a lessee or contract buyer responsible for maintaining the property and the leasehold interest or agreement for deed is being terminated. The strict rules of evidence applicable to judicial proceedings shall not apply to hearings authorized under this Division.

(Source: P.A. 86-1364.)

(65 ILCS 5/11-20-7) (from Ch. 24, par. 11-20-7)

Sec. 11-20-7. Cutting and removal of neglected weeds, grass, trees, and bushes.

(a) The corporate authorities of each municipality may provide for the removal of nuisance greenery from any parcel of private property within the municipality if the owners of that parcel, after reasonable notice, refuse or neglect to remove the nuisance greenery. The municipality may collect, from the owners of that parcel, the reasonable removal cost.

(b) The municipality's removal cost under this Section is a lien upon the underlying parcel in accordance with Section 11-20-15.

(c) For the purpose of this Section:

"Removal of nuisance greenery" or "removal activities" means the cutting of weeds or grass if the height exceeds the limit established by the municipality, the trimming of damaged trees that may fall on adjacent property or bushes that encroach on adjacent property, and the removal of nuisance bushes or trees that are located within 18 inches of the foundation of a building or a fence.

"Removal cost" means the total cost of the removal activity.

"Reasonable notice" means that a copy of a violation notice shall be served upon the property owner (i) personally or (ii) by first class mail, postage prepaid, or by certified mail and sent to the address of the property owner and the address appearing on the property tax records. If the name of the property owner cannot be ascertained or if service on the owner cannot be made by mail, service may be made on the owner by posting a copy of the violation notice in a prominent place upon the property where the violation occurred.

(d) In the case of an abandoned residential property as defined in Section 11-20-15.1, the municipality may elect to obtain a lien for the removal cost pursuant to Section 11-20-15.1, in which case the provisions of Section 11-20-15.1 shall be the exclusive remedy for the removal cost.

The provisions of this subsection (d), other than this sentence, are inoperative upon certification by the Secretary of the Illinois Department of Financial and Professional Regulation, after consultation with the United States Department of Housing and Urban Development, that the Mortgage Electronic Registration System program is effectively registering substantially all mortgaged residential properties located in the State of Illinois, is available for access by all municipalities located in the State of Illinois without charge to them, and such registration includes the telephone number for the mortgage servicer.

(Source: P.A. 95-183, eff. 8-14-07; 96-462, eff. 8-14-09; 96-856, eff. 3-1-10.)

(65 ILCS 5/11-20-8) (from Ch. 24, par. 11-20-8)

Sec. 11-20-8. Pest extermination; liens.

(a) The corporate authorities of each municipality may provide pest-control activities on any parcel of private property in the municipality if, after reasonable notice, the owners of that parcel refuse or neglect to prevent the ingress of pests to their property or to exterminate pests on their property. The municipality may collect, from the owners of the underlying parcel, the reasonable removal cost.

(b) The municipality's removal cost under this Section is a lien upon the underlying parcel in accordance with Section 11-20-15.

(c) For the purpose of this Section:

"Pests" means undesirable arthropods (including certain insects, spiders, mites, ticks, and related organisms), wood infesting organisms, rats, mice, and other obnoxious undesirable animals, but does not include a feral cat, a "companion animal" as that term is defined in the Humane Care for Animals Act (510 ILCS 70/), "animals" as that term is defined in the Illinois Diseased Animals Act (510 ILCS 50/), or animals protected by the Wildlife Code (520 ILCS 5/).

"Pest-control activity" means the extermination of pests or the prevention of the ingress of pests.

"Removal cost" means the total cost of the pest-control activity.

"Reasonable notice" means that a copy of a violation notice shall be served upon the property owner (i) personally or (ii) by first class mail, postage prepaid, or by certified mail and sent to the address of the property owner and the address appearing on the property tax records. If the name of the property owner cannot be ascertained or if service on the owner cannot be made by mail, service may be made on the owner by posting a copy of the violation notice in a prominent place upon the property where the violation occurred.

(d) In the case of an abandoned residential property as defined in Section 11-20-15.1, the municipality may elect to obtain a lien for the removal cost pursuant to Section 11-20-15.1, in which case the provisions of Section 11-20-15.1 shall be the exclusive remedy for the removal cost.

The provisions of this subsection (d), other than this sentence, are inoperative upon certification by the Secretary of the Illinois Department of Financial and Professional Regulation, after consultation with the United States Department of Housing and Urban Development, that the Mortgage Electronic Registration System program is effectively registering substantially all mortgaged residential properties located in the State of Illinois, is available for access by all municipalities located in the State of Illinois without charge to them, and such registration includes the telephone number for the mortgage servicer.

(Source: P.A. 96-462, eff. 8-14-09; 96-856, eff. 3-1-10.)

(65 ILCS 5/11-20-12) (from Ch. 24, par. 11-20-12)

Sec. 11-20-12. Removal of infected trees.

(a) The corporate authorities of each municipality may provide for the removal of elm trees infected with Dutch elm disease or ash trees infected with the emerald ash borer (Agrilus planipennis Fairmaire) from any parcel of private property within the municipality if (i) public lands within the municipality are subject to a similar standard for removal and (ii) the owners of that parcel, after reasonable notice, refuse or neglect to remove the infected trees. The municipality may collect, from the owners of the parcel, the reasonable removal cost.

(b) The municipality's removal cost under this Section is a lien upon the underlying parcel in accordance with Section 11-20-15.

(c) For the purpose of this Section, "removal cost" means the total cost of the removal of the infected trees.

(c-5) For the purpose of this Section, "reasonable notice" means that a copy of a violation notice shall be served upon the property owner (i) personally or (ii) by first class mail, postage prepaid, or by certified mail and sent to the address of the property owner and the address appearing on the property tax records. If the name of the property owner cannot be ascertained or if service on the owner cannot be made by mail, service may be made on the owner by posting a copy of the violation notice in a prominent place upon the property where the violation occurred.

(d) In the case of an abandoned residential property as defined in Section 11-20-15.1, the municipality may elect to obtain a lien for the removal cost pursuant to Section 11-20-15.1, in which case the provisions of Section 11-20-15.1 shall be the exclusive remedy for the removal cost.

The provisions of this subsection (d), other than this sentence, are inoperative upon certification by the Secretary of the Illinois Department of Financial and Professional Regulation, after consultation with the United States Department of Housing and Urban Development, that the Mortgage Electronic Registration System program is effectively registering substantially all mortgaged residential properties located in the State of Illinois, is available for access by all municipalities located in the State of Illinois without charge to them, and such registration includes the telephone number for the mortgage servicer.

(Source: P.A. 95-183, eff. 8-14-07; 96-462, eff. 8-14-09; 96-856, eff. 3-1-10.)

(65 ILCS 5/11-20-13) (from Ch. 24, par. 11-20-13)

Sec. 11-20-13. Removal of garbage, refuse, debris, and graffiti.

(a) The corporate authorities of each municipality may provide for the removal of garbage, debris, and graffiti from any parcel of private property within the municipality if the owner of that parcel, after reasonable notice, refuses or neglects to remove the garbage, refuse as defined in Section 11-19-2, debris, and graffiti. The municipality may collect, from the owner of the parcel, the reasonable removal cost.

(b) The municipality's removal cost under this Section is a lien upon the underlying parcel in accordance with Section 11-20-15.

(c) This amendatory Act of 1973 does not apply to any municipality which is a home rule unit.

(d) For the purpose of this Section, "removal cost" means the total cost of the removal of garbage and refuse debris. The term "removal cost" does not include any cost associated with the removal of graffiti.

(d-5) For the purpose of this Section, "reasonable notice" means that a copy of a violation notice shall be served upon the property owner (i) personally or (ii) by first class mail, postage prepaid, or by certified mail and sent to the address of the property owner and the address appearing on the property tax records. If the name of the property owner cannot be ascertained or if service on the owner cannot be made by mail, service may be made on the owner by posting a copy of the violation notice in a prominent place upon the property where the violation occurred.

(e) In the case of an abandoned residential property as defined in Section 11-20-15.1, the municipality may elect to obtain a lien for the removal cost pursuant to Section 11-20-15.1, in which case the provisions of Section 11-20-15.1 shall be the exclusive remedy for the removal cost.

The provisions of this subsection (e), other than this sentence, are inoperative upon certification by the Secretary of the Illinois Department of Financial and Professional Regulation, after consultation with the United States Department of Housing and Urban Development, that the Mortgage Electronic Registration System program is effectively registering substantially all mortgaged residential properties located in the State of Illinois, is available for access by all municipalities located in the State of Illinois without charge to them, and such registration includes the telephone number for the mortgage servicer.

(Source: P.A. 96-462, eff. 8-14-09; 96-856, eff. 3-1-10.)

(65 ILCS 5/11-20-15.1)

Sec. 11-20-15.1. Lien for costs of removal, securing, and enclosing on abandoned residential property.

(a) If the municipality elects to incur a removal cost pursuant to subsection (d) of Section 11-20-7, subsection (d) of Section 11-20-8, subsection (d) of Section 11-20-12, or subsection (e) of Section 11-20-13, or a securing or enclosing cost pursuant to Section 11-31-1.01 with respect to an abandoned residential property, then that cost is a lien upon the underlying parcel of that abandoned residential property. This lien is superior to all other liens and encumbrances, except tax liens and as otherwise provided in this Section.

(b) To perfect a lien under this Section, the municipality must, within one year after the cost is incurred for the activity, file notice of the lien in the office of the recorder in the county in which the abandoned residential property is located or, if the abandoned residential property is registered under the Torrens system, in the office of the Registrar of Titles of that county, a sworn statement setting out:

(1) a description of the abandoned residential property that sufficiently identifies the parcel;

(2) the amount of the cost of the activity;

(3) the date or dates when the cost for the activity was incurred by the municipality; and

(4) a statement that the lien has been filed pursuant to subsection (d) of Section 11-20-7, subsection (d) of Section 11-20-8, subsection (d) of Section 11-20-12, subsection (e) of Section 11-20-13, or Section 11-31-1.01, as applicable.

If, for any abandoned residential property, the municipality engaged in any activity on more than one occasion during the course of one year, then the municipality may combine any or all of the costs of each of those activities into a single notice of lien.

(c) To enforce a lien pursuant to this Section, the municipality must maintain contemporaneous records that include, at a minimum: (i) a dated statement of finding by the municipality that the property for which the work is to be performed has become abandoned residential property, which shall include (1) the date when the property was first known or observed to be unoccupied by any lawful occupant or occupants, (2) a description of the actions taken by the municipality to contact the legal owner or owners of the property identified on the recorded mortgage, or, if known, any agent of the owner or owners, including the dates such actions were taken, and (3) a statement that no contacts were made with the legal owner or owners or their agents as a result of such actions, (ii) a dated certification by an authorized official of the municipality of the necessity and specific nature of the work to be performed, (iii) a copy of the agreement with the person or entity performing the work that includes the legal name of the person or entity, the rate or rates to be charged for performing the work, and an estimate of the total cost of the work to be performed, (iv) detailed invoices and payment vouchers for all payments made by the municipality for such work, and (v) a statement as to whether the work was engaged through a competitive bidding process, and if so, a copy of all proposals submitted by the bidders for such work.

(d) A lien under this Section shall be enforceable exclusively at the hearing for confirmation of sale of the abandoned residential property that is held pursuant to subsection (b) of Section 15-1508 of the Code of Civil Procedure and shall be limited to a claim of interest in the proceeds of the sale and subject to the requirements of this Section. Any mortgagee who holds a mortgage on the property, or any beneficiary or trustee who holds a deed of trust on the property, may contest the lien or the amount of the lien at any time during the foreclosure proceeding upon motion and notice in accordance with court rules applicable to motions generally. Grounds for forfeiture of the lien or the superior status of the lien granted by subsection (a) of this Section shall include, but not be limited to, a finding by the court that: (i) the municipality has not complied with subsection (b) or (c) of this Section, (ii) the scope of the work was not reasonable under the circumstances, (iii) the work exceeded the authorization for the work to be performed under subsection (a) of Section 11-20-7, subsection (a) of Section 11-20-8, subsection (a) of Section 11-20-12, subsection (a) of Section 11-20-13, or subsection (a) of Section 11-31-1.01, as applicable, or (iv) the cost of the services rendered or materials provided was not commercially reasonable. Forfeiture of the superior status of the lien otherwise granted by this Section shall not constitute a forfeiture of the lien as a subordinate lien.

(e) Upon payment of the amount of a lien filed under this Section by the mortgagee, servicer, owner, or any other person, the municipality shall release the lien, and the release may be filed of record by the person making such payment at the person's sole expense as in the case of filing notice of lien.

(f) Notwithstanding any other provision of this Section, a municipality may not file a lien pursuant to this Section for activities performed pursuant to Section 11-20-7, Section 11-20-8, Section 11-20-12, Section 11-20-13, or Section 11-31-1.01, if: (i) the mortgagee or servicer of the abandoned residential property has provided notice to the municipality that the mortgagee or servicer has performed or will perform the remedial actions specified in the notice that the municipality otherwise might perform pursuant to subsection (d) of Section 11-20-7, subsection (d) of Section 11-20-8, subsection (d) of Section 11-20-12, subsection (e) of Section 11-20-13, or Section 11-31-1.01, provided that the remedial actions specified in the notice have been performed or are performed or initiated in good faith within 30 days of such notice; or (ii) the municipality has provided notice to the mortgagee or servicer of a problem with the property requiring the remedial actions specified in the notice that the municipality otherwise would perform pursuant to subsection (d) of Section 11-20-7, subsection (d) of Section 11-20-8, subsection (d) of Section 11-20-12, subsection (e) of Section 11-20-13, or Section 11-31-1.01, and the mortgagee or servicer has performed or performs or initiates in good faith the remedial actions specified in the notice within 30 days of such notice.

(g) This Section and subsection (d) of Section 11-20-7, subsection (d) of Section 11-20-8, subsection (d) of Section 11-20-12, subsection (e) of Section 11-20-13, or Section 11-31-1.01 shall apply only to activities performed, costs incurred, and liens filed after the effective date of this amendatory Act of the 96th General Assembly.

(h) For the purposes of this Section and subsection (d) of Section 11-20-7, subsection (d) of Section 11-20-8, subsection (d) of Section 11-20-12, subsection (e) of Section 11-20-13, or Section 11-31-1.01:

"Abandoned residential property" means any type of permanent residential dwelling unit, including detached single family structures, and townhouses, condominium units and multifamily rental apartments covering the entire property, and manufactured homes treated under Illinois law as real estate and not as personal property, that has been unoccupied by any lawful occupant or occupants for at least 90 days and utility service is not active making the property uninhabitable, and for which after such 90 day period, the municipality has made good faith efforts to contact the legal owner or owners of the property identified on the recorded mortgage, or, if known, any agent of the owner or owners, and no contact has been made. A property for which the municipality has been given notice of the order of confirmation of sale pursuant to subsection (b-10) of Section 15-1508 of the Code of Civil Procedure or a property where renovation has occurred within the 30-day period before the municipality incurred the removal cost shall not be deemed to be an abandoned residential property for the purposes of subsection (d) of Section 11-20-7, subsection (d) of Section 11-20-8, subsection (d) of Section 11-20-12, subsection (e) of Section 11-20-13, and Section 11-31-1.01 of this Code.

"MERS program" means the nationwide Mortgage Electronic Registration System approved by Fannie Mae, Freddie Mac, and Ginnie Mae that has been created by the mortgage banking industry with the mission of registering every mortgage loan in the United States to lawfully make information concerning each residential mortgage loan and the property securing it available by Internet access to mortgage originators, servicers, warehouse lenders, wholesale lenders, retail lenders, document custodians, settlement agents, title companies, insurers, investors, county recorders, units of local government, and consumers.

(i) Any entity or person who performs a removal, securing, or enclosing activity pursuant to the authority of a municipality under subsection (d) of Section 11-20-7, subsection (d) of Section 11-20-8, subsection (d) of Section 11-20-12, subsection (e) of Section 11-20-13, or Section 11-31-1.01, may, in its, his, or her own name, file a lien pursuant to subsection (b) of this Section and appear in a foreclosure action on that lien pursuant to subsection (d) of this Section in the place of the municipality, provided that the municipality shall remain subject to subsection (c) of this Section, and such party shall be subject to all of the provisions in this Section as if such party were the municipality.

(j) If prior to subsection (d) of Section 11-20-7, subsection (d) of Section 11-20-8, subsection (d) of Section 11-20-12, and subsection (e) of Section 11-20-13 becoming inoperative a lien is filed pursuant to any of those subsections, then the lien shall remain in full force and effect after the subsections have become inoperative, subject to all of the provisions of this Section. If prior to the repeal of Section 11-31-1.01 a lien is filed pursuant to Section 11-31-1.01, then the lien shall remain in full force and effect after the repeal of Section 11-31-1.01, subject to all of the provisions of this Section.

(Source: P.A. 96-856, eff. 3-1-10.)

Section 99. Effective date. This Act takes effect upon becoming law.