State of Illinois
91st General Assembly
Legislation

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91_HB2005

 
                                               LRB9103736MWks

 1        AN  ACT  to amend the Illinois Municipal Code by changing
 2    Section 11-31-1.

 3        Be it enacted by the People of  the  State  of  Illinois,
 4    represented in the General Assembly:

 5        Section  5.   The  Illinois  Municipal Code is amended by
 6    changing Section 11-31-1 as follows:

 7        (65 ILCS 5/11-31-1) (from Ch. 24, par. 11-31-1)
 8        Sec.   11-31-1.  Demolition,   repair,   enclosure,    or
 9    remediation.
10        (a)  The  corporate  authorities of each municipality may
11    demolish, repair, or enclose or cause the demolition, repair,
12    or enclosure of dangerous and unsafe buildings or uncompleted
13    and  abandoned  buildings  within  the   territory   of   the
14    municipality  and may remove or cause the removal of garbage,
15    debris, petroleum products, and other hazardous, noxious,  or
16    unhealthy  substances  or materials from those buildings.  In
17    any county having adopted by referendum or otherwise a county
18    health  department  as  provided  by  Division  5-25  of  the
19    Counties Code or its predecessor, the county  board  of  that
20    county may exercise those powers with regard to dangerous and
21    unsafe  buildings  or  uncompleted  and  abandoned  buildings
22    within  the  territory  of any city, village, or incorporated
23    town having less than 50,000 population.
24        The corporate authorities  shall  apply  to  the  circuit
25    court  of the county in which the building is located (i) for
26    an order authorizing action to be taken  with  respect  to  a
27    building  if  the  owner or owners of the building, including
28    the lien holders of record, after at least 15  days'  written
29    notice by mail so to do, have failed to put the building in a
30    safe  condition  or  to  demolish  it  or  (ii)  for an order
31    requiring the owner or owners of record to demolish,  repair,
 
                            -2-                LRB9103736MWks
 1    or  enclose  the  building  or  to  remove  garbage,  debris,
 2    petroleum   products,   and   other  hazardous,  noxious,  or
 3    unhealthy substances or materials from the building.   It  is
 4    not  a  defense  to  the cause of action that the building is
 5    boarded up or otherwise  enclosed,  although  the  court  may
 6    order  the  defendant  to  have  the  building  boarded up or
 7    otherwise enclosed. Where, upon diligent search, the identity
 8    or whereabouts of  the  owner  or  owners  of  the  building,
 9    including  the  lien holders of record, is not ascertainable,
10    notice mailed to the person or persons in whose name the real
11    estate was last assessed  is  sufficient  notice  under  this
12    Section.
13        The  hearing  upon  the  application to the circuit court
14    shall be expedited by the court and shall be given precedence
15    over all other suits.  Any person entitled to bring an action
16    under subsection (b) shall have the right to intervene in  an
17    action brought under this Section.
18        The cost of the demolition, repair, enclosure, or removal
19    incurred  by the municipality, by an intervenor, or by a lien
20    holder of record, including court costs, attorney's fees, and
21    other costs related to the enforcement of  this  Section,  is
22    recoverable  from  the  owner or owners of the real estate or
23    the previous owner or both if the  property  was  transferred
24    during  the  15  day  notice period and is a lien on the real
25    estate; the lien is superior to all prior existing liens  and
26    encumbrances,  except  taxes,  if,  within 180 days after the
27    repair, demolition, enclosure, or removal, the  municipality,
28    the lien holder of record, or the intervenor who incurred the
29    cost and expense shall file a notice of lien for the cost and
30    expense  incurred in the office of the recorder in the county
31    in which the real estate is located or in the office  of  the
32    registrar of titles of the county if the real estate affected
33    is registered under the Registered Titles (Torrens) Act.
34        The  notice must consist of a sworn statement setting out
 
                            -3-                LRB9103736MWks
 1    (1) a description of  the  real  estate  sufficient  for  its
 2    identification, (2) the amount of money representing the cost
 3    and expense incurred, and (3) the date or dates when the cost
 4    and expense was incurred by the municipality, the lien holder
 5    of  record,  or  the intervenor. Upon payment of the cost and
 6    expense by the owner of or persons interested in the property
 7    after the notice of lien has been filed, the  lien  shall  be
 8    released  by  the  municipality, the person in whose name the
 9    lien has been filed, or the assignee of  the  lien,  and  the
10    release  may  be  filed  of  record  as in the case of filing
11    notice of lien. Unless the lien is enforced under  subsection
12    (c),  the  lien may be enforced by foreclosure proceedings as
13    in the case of mortgage foreclosures under Article XV of  the
14    Code  of  Civil Procedure or mechanics' lien foreclosures. An
15    action to foreclose this lien may be commenced  at  any  time
16    after the date of filing of the notice of lien.  The costs of
17    foreclosure  incurred  by  the  municipality, including court
18    costs, reasonable attorney's fees, advances to  preserve  the
19    property,  and other costs related to the enforcement of this
20    subsection, plus statutory interest, are a lien on  the  real
21    estate and are recoverable by the municipality from the owner
22    or owners of the real estate.
23        All  liens  arising  under  this  subsection (a) shall be
24    assignable. The assignee of the  lien  shall  have  the  same
25    power to enforce the lien as the assigning party, except that
26    the lien may not be enforced under subsection (c).
27        If   the   appropriate   official   of  any  municipality
28    determines  that  any  dangerous  and  unsafe   building   or
29    uncompleted  and  abandoned  building  within  its  territory
30    fulfills  the  requirements for an action by the municipality
31    under  the  Abandoned   Housing   Rehabilitation   Act,   the
32    municipality  may  petition  under  that  Act in a proceeding
33    brought under this subsection.
34        (b)  Any owner or tenant of  real  property  within  1200
 
                            -4-                LRB9103736MWks
 1    feet  in  any  direction  of any dangerous or unsafe building
 2    located  within  the  territory  of  a  municipality  with  a
 3    population of 500,000 or more may file with  the  appropriate
 4    municipal authority  a request that the municipality apply to
 5    the  circuit  court  of  the  county in which the building is
 6    located for an order permitting the  demolition,  removal  of
 7    garbage,  debris,  petroleum  products,  and other noxious or
 8    unhealthy  substances  and  materials  from,  or  repair   or
 9    enclosure  of  the  building  in  the  manner  prescribed  in
10    subsection (a) of this Section.  If the municipality fails to
11    institute an action in circuit court within 90 days after the
12    filing  of  the request, the owner or tenant of real property
13    within 1200  feet  in  any  direction  of  the  building  may
14    institute  an  action  in  circuit  court  seeking  an  order
15    compelling  the owner or owners of record to demolish, remove
16    garbage, debris, petroleum products,  and  other  noxious  or
17    unhealthy substances and materials from, repair or enclose or
18    to  cause  to  be demolished, have garbage, debris, petroleum
19    products, and  other  noxious  or  unhealthy  substances  and
20    materials removed from, repaired, or enclosed the building in
21    question.  A private owner or tenant who institutes an action
22    under the preceding sentence shall not be required to pay any
23    fee  to  the  clerk of the circuit court. The cost of repair,
24    removal, demolition, or enclosure shall be borne by the owner
25    or owners of record of the building. In the event  the  owner
26    or owners of record fail to demolish, remove garbage, debris,
27    petroleum products, and other noxious or unhealthy substances
28    and materials from, repair, or enclose the building within 90
29    days  of  the  date the court entered its order, the owner or
30    tenant who instituted the action may request that  the  court
31    join  the  municipality  as a party to the action.  The court
32    may order the  municipality  to  demolish,  remove  materials
33    from,  repair,  or enclose the building, or cause that action
34    to be taken upon the request  of  any  owner  or  tenant  who
 
                            -5-                LRB9103736MWks
 1    instituted  the  action  or  upon the municipality's request.
 2    The municipality may file, and the court may approve, a  plan
 3    for  rehabilitating  the  building in question. A court order
 4    authorizing the municipality to  demolish,  remove  materials
 5    from,  repair, or enclose a building, or cause that action to
 6    be taken, shall not preclude the  court  from  adjudging  the
 7    owner  or  owners  of  record  of the building in contempt of
 8    court due  to  the  failure  to  comply  with  the  order  to
 9    demolish,  remove  garbage,  debris,  petroleum products, and
10    other noxious or unhealthy  substances  and  materials  from,
11    repair, or enclose the building.
12        If  a  municipality or a person or persons other than the
13    owner or owners of record pay the cost of demolition, removal
14    of garbage, debris, petroleum products, and other noxious  or
15    unhealthy  substances  and  materials,  repair,  or enclosure
16    pursuant to a court order, the cost, including  court  costs,
17    attorney's  fees,  and other costs related to the enforcement
18    of this subsection, is recoverable from the owner  or  owners
19    of the real estate and is a lien on the real estate; the lien
20    is  superior  to  all  prior existing liens and encumbrances,
21    except taxes, if, within 180 days after the repair,  removal,
22    demolition,  or  enclosure, the municipality or the person or
23    persons who paid the costs of demolition, removal, repair, or
24    enclosure shall file a notice of lien of the cost and expense
25    incurred in the office of the recorder in the county in which
26    the real estate is located or in the office of the  registrar
27    of the county if the real estate affected is registered under
28    the Registered Titles (Torrens) Act. The notice shall be in a
29    form  as  is  provided in subsection (a).  An owner or tenant
30    who institutes an action in circuit court seeking an order to
31    compel the owner or owners  of  record  to  demolish,  remove
32    materials  from,  repair,  or enclose any dangerous or unsafe
33    building, or to cause that action  to  be  taken  under  this
34    subsection  may recover court costs and reasonable attorney's
 
                            -6-                LRB9103736MWks
 1    fees for instituting the action from the owner or  owners  of
 2    record  of  the  building.  Upon  payment  of  the  costs and
 3    expenses by the owner  of  or  a  person  interested  in  the
 4    property  after  the  notice of lien has been filed, the lien
 5    shall be released by the municipality or the person in  whose
 6    name  the lien has been filed or his or her assignee, and the
 7    release may be filed of record as in the  case  of  filing  a
 8    notice of lien.  Unless the lien is enforced under subsection
 9    (c),  the  lien may be enforced by foreclosure proceedings as
10    in the case of mortgage foreclosures under Article XV of  the
11    Code  of Civil Procedure or mechanics' lien foreclosures.  An
12    action to foreclose this lien may be commenced  at  any  time
13    after the date of filing of the notice of lien.  The costs of
14    foreclosure  incurred  by  the  municipality, including court
15    costs, reasonable attorneys' fees, advances to  preserve  the
16    property,  and other costs related to the enforcement of this
17    subsection, plus statutory interest, are a lien on  the  real
18    estate and are recoverable by the municipality from the owner
19    or owners of the real estate.
20        All  liens arising under the terms of this subsection (b)
21    shall be assignable.  The assignee of the lien shall have the
22    same power to enforce the lien as the assigning party, except
23    that the lien may not be enforced under subsection (c).
24        (c)  In any case where a municipality has obtained a lien
25    under subsection (a),  (b),  or  (f),  the  municipality  may
26    enforce  the  lien  under  this  subsection  (c)  in the same
27    proceeding in which the lien is authorized.
28        A municipality desiring to  enforce  a  lien  under  this
29    subsection   (c)   shall   petition   the   court  to  retain
30    jurisdiction   for   foreclosure   proceedings   under   this
31    subsection.  Notice of  the  petition  shall  be  served,  by
32    certified  or registered mail, on all persons who were served
33    notice under subsection (a), (b), or (f).   The  court  shall
34    conduct a hearing on the petition not less than 15 days after
 
                            -7-                LRB9103736MWks
 1    the  notice  is  served.   If  the  court determines that the
 2    requirements of this subsection (c) have been  satisfied,  it
 3    shall  grant  the  petition  and retain jurisdiction over the
 4    matter until the foreclosure proceeding  is  completed.   The
 5    costs  of foreclosure incurred by the municipality, including
 6    court costs, reasonable attorneys' fees, advances to preserve
 7    the property, and other costs related to the  enforcement  of
 8    this  subsection,  plus statutory interest, are a lien on the
 9    real estate and are recoverable by the municipality from  the
10    owner  or owners of the real estate.  If the court denies the
11    petition, the municipality may enforce the lien in a separate
12    action as provided in subsection (a), (b), or (f).
13        All persons designated in Section 15-1501 of the Code  of
14    Civil   Procedure   as   necessary   parties  in  a  mortgage
15    foreclosure action shall be joined as parties before issuance
16    of an order of foreclosure.  Persons  designated  in  Section
17    15-1501 of the Code of Civil Procedure as permissible parties
18    may also be joined as parties in the action.
19        The  provisions  of  Article  XV  of  the  Code  of Civil
20    Procedure applicable to mortgage foreclosures shall apply  to
21    the  foreclosure  of a lien under this subsection (c), except
22    to the extent that those  provisions  are  inconsistent  with
23    this  subsection.    For  purposes  of  foreclosures of liens
24    under  this  subsection,  however,  the   redemption   period
25    described in subsection (b) of Section 15-1603 of the Code of
26    Civil  Procedure shall end 60 days after the date of entry of
27    the order of foreclosure.
28        (d)  In addition to any other remedy provided by law, the
29    corporate authorities of any municipality  may  petition  the
30    circuit  court to have property declared abandoned under this
31    subsection (d) if:
32             (1)  the property has been tax delinquent for  2  or
33        more  years  or  bills for water service for the property
34        have been outstanding for 2 or more years;
 
                            -8-                LRB9103736MWks
 1             (2)  the property is unoccupied by  persons  legally
 2        in possession; and
 3             (3)  the  property  contains  a  dangerous or unsafe
 4        building.
 5        All persons having an interest of record in the property,
 6    including  tax  purchasers  and  beneficial  owners  of   any
 7    Illinois  land  trust  having title to the property, shall be
 8    named as defendants in the petition and shall be served  with
 9    process.   In  addition,  service  shall be had under Section
10    2-206 of the Code  of  Civil  Procedure  as  in  other  cases
11    affecting property.
12        The   municipality,   however,  may  proceed  under  this
13    subsection in a proceeding brought under  subsection  (a)  or
14    (b).   Notice of the petition shall be served by certified or
15    registered mail on all persons who were served  notice  under
16    subsection (a) or (b).
17        If  the municipality proves that the conditions described
18    in this subsection exist and  the  owner  of  record  of  the
19    property  does  not enter an appearance in the action, or, if
20    title to the property is held by an Illinois land  trust,  if
21    neither  the  owner of record nor the owner of the beneficial
22    interest of the trust enters an appearance, the  court  shall
23    declare the property abandoned.
24        If  that  determination  is made, notice shall be sent by
25    certified  or  registered  mail  to  all  persons  having  an
26    interest of record in the property, including tax  purchasers
27    and beneficial owners of any Illinois land trust having title
28    to  the  property, stating that title to the property will be
29    transferred to the municipality unless, within 30 days of the
30    notice, the owner of  record  enters  an  appearance  in  the
31    action,  or unless any other person having an interest in the
32    property files with the  court  a  request  to  demolish  the
33    dangerous  or  unsafe building or to put the building in safe
34    condition.
 
                            -9-                LRB9103736MWks
 1        If the owner of record enters an appearance in the action
 2    within the 30 day period, the court shall  vacate  its  order
 3    declaring   the   property  abandoned.   In  that  case,  the
 4    municipality may amend its complaint  in  order  to  initiate
 5    proceedings under subsection (a).
 6        If  a request to demolish or repair the building is filed
 7    within the 30 day period, the court shall grant permission to
 8    the requesting party to demolish the building within 30  days
 9    or  to  restore the building to safe condition within 60 days
10    after the request is granted.  An extension  of  that  period
11    for up to 60 additional days may be given for good cause.  If
12    more than one person with an interest in the property files a
13    timely  request, preference shall be given to the person with
14    the lien or other interest of the highest priority.
15        If the requesting party proves  to  the  court  that  the
16    building  has  been  demolished  or  put  in a safe condition
17    within the period of time granted by  the  court,  the  court
18    shall issue a quitclaim judicial deed for the property to the
19    requesting party, conveying only the interest of the owner of
20    record,  upon  proof  of  payment  to the municipality of all
21    costs incurred by the municipality  in  connection  with  the
22    action,  including but not limited to court costs, attorney's
23    fees, administrative costs, the  costs,  if  any,  associated
24    with   building   enclosure   or   removal,   and  receiver's
25    certificates.  The interest in the property so conveyed shall
26    be subject to all liens and encumbrances on the property.  In
27    addition, if the interest is conveyed to a person  holding  a
28    certificate  of  purchase for the property under the Property
29    Tax Code, the conveyance shall be subject to  the  rights  of
30    redemption  of all persons entitled to redeem under that Act,
31    including the original owner of record.
32        If no person with an interest in  the  property  files  a
33    timely  request  or if the requesting party fails to demolish
34    the building or put the building in safe condition within the
 
                            -10-               LRB9103736MWks
 1    time specified by the court, the  municipality  may  petition
 2    the  court  to  issue a judicial deed for the property to the
 3    municipality.  A conveyance by judicial deed shall operate to
 4    extinguish all existing ownership interests in, liens on, and
 5    other interest in the property, including tax liens.
 6        (e)  Each municipality may use  the  provisions  of  this
 7    subsection  to expedite the removal of certain buildings that
 8    are a continuing hazard to the community in  which  they  are
 9    located.
10        If  a  residential or commercial building is 3 stories or
11    less in height as  defined  by  the  municipality's  building
12    code,  and  the corporate official designated to be in charge
13    of enforcing the municipality's building code determines that
14    the  building  is  open  and  vacant  and  an  immediate  and
15    continuing hazard to the community in which the  building  is
16    located,  then  the  official  shall  be authorized to post a
17    notice not less than 2 feet by 2 feet in size on the front of
18    the building.  The notice shall be dated as of  the  date  of
19    the  posting  and  shall  state  that  unless the building is
20    demolished, repaired, or enclosed, and  unless  any  garbage,
21    debris,  petroleum products, and other hazardous, noxious, or
22    unhealthy substances or materials  are  removed  so  that  an
23    immediate  and  continuing  hazard to the community no longer
24    exists, then the building may  be  demolished,  repaired,  or
25    enclosed,  or  any  garbage,  debris, petroleum products, and
26    other  hazardous,  noxious,  or   unhealthy   substances   or
27    materials may be removed, by the municipality.
28        Not  later  than  30  days  following  the posting of the
29    notice, the municipality shall do both of the following:
30             (1)  Cause to be sent,  by  certified  mail,  return
31        receipt  requested,  a  notice to all owners of record of
32        the property, the beneficial owners of any Illinois  land
33        trust  having  title to the property, and all lienholders
34        of record in the property,  stating  the  intent  of  the
 
                            -11-               LRB9103736MWks
 1        municipality to demolish, repair, or enclose the building
 2        or  remove  any  garbage,  debris, petroleum products, or
 3        other hazardous,  noxious,  or  unhealthy  substances  or
 4        materials  if  that  action  is not taken by the owner or
 5        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, petroleum products, or other
15        hazardous, noxious, or unhealthy substances or  materials
16        if  the  owner or owners or lienholders of record fail to
17        do so.  This notice shall be published for 3  consecutive
18        days.
19        A  person  objecting  to  the  proposed  actions  of  the
20    corporate  authorities  may  file  his or her objection in an
21    appropriate form in a court of competent jurisdiction.
22        If the building is not demolished, repaired, or enclosed,
23    or  the  garbage,  debris,  petroleum  products,   or   other
24    hazardous,  noxious, or unhealthy substances or materials are
25    not removed, within 30 days of  mailing  the  notice  to  the
26    owners  of record, the beneficial owners of any Illinois land
27    trust having title to the property, and  all  lienholders  of
28    record  in the property, or within 30 days of the last day of
29    publication of the notice, whichever is later, the  corporate
30    authorities  shall  have  the  power  to demolish, repair, or
31    enclose the  building  or  to  remove  any  garbage,  debris,
32    petroleum products, or other hazardous, noxious, or unhealthy
33    substances or materials.
34        The  municipality  may  proceed  to  demolish, repair, or
 
                            -12-               LRB9103736MWks
 1    enclose a building or remove any garbage,  debris,  petroleum
 2    products,   or   other   hazardous,   noxious,  or  unhealthy
 3    substances  or  materials  under  this  subsection  within  a
 4    120-day period following the  date  of  the  mailing  of  the
 5    notice  if  the  appropriate  official  determines  that  the
 6    demolition,  repair,  enclosure,  or  removal of any garbage,
 7    debris, petroleum products, or other hazardous,  noxious,  or
 8    unhealthy  substances or materials is necessary to remedy the
 9    immediate and continuing hazard.   If,  however,  before  the
10    municipality  proceeds  with any of the actions authorized by
11    this subsection, any person has sought a hearing  under  this
12    subsection  before  a  court  and  has  served  a copy of the
13    complaint on the chief executive officer of the municipality,
14    then the municipality shall not proceed with the  demolition,
15    repair,  enclosure,  or removal of garbage, debris, petroleum
16    products, or other substances until the court determines that
17    that action is necessary to remedy the hazard and  issues  an
18    order authorizing the municipality to do so.
19        Following  the  demolition,  repair,  or  enclosure  of a
20    building,  or  the  removal  of  garbage,  debris,  petroleum
21    products,  or  other   hazardous,   noxious,   or   unhealthy
22    substances   or   materials   under   this   subsection,  the
23    municipality may file a  notice  of  lien  against  the  real
24    estate  for the cost of the demolition, repair, enclosure, or
25    removal  within  180  days  after  the  repair,   demolition,
26    enclosure,  or  removal  occurred,  for  the cost and expense
27    incurred, in the office of the  recorder  in  the  county  in
28    which  the  real  estate  is  located or in the office of the
29    registrar of titles of the county if the real estate affected
30    is registered under the Registered Titles (Torrens) Act.  The
31    notice of lien shall consist of  a  sworn  statement  setting
32    forth  (i)  a  description  of  the  real estate, such as the
33    address or other description of the property, sufficient  for
34    its   identification;  (ii)  the  expenses  incurred  by  the
 
                            -13-               LRB9103736MWks
 1    municipality in undertaking the remedial  actions  authorized
 2    under  this  subsection; (iii) the date or dates the expenses
 3    were incurred by the municipality; (iv) a  statement  by  the
 4    corporate  official  responsible  for  enforcing the building
 5    code that the building was open and vacant and constituted an
 6    immediate and continuing  hazard  to  the  community;  (v)  a
 7    statement  by  the  corporate official that the required sign
 8    was posted on the building, that notice was sent by certified
 9    mail to the owners of record, and that notice  was  published
10    in  accordance  with this subsection; and (vi) a statement as
11    to when  and  where  the  notice  was  published.   The  lien
12    authorized  by  this subsection may thereafter be released or
13    enforced by the municipality as provided in subsection (a).
14        (f)  The corporate authorities of each  municipality  may
15    remove  or cause the removal of, or otherwise environmentally
16    remediate hazardous substances on, in, or under any abandoned
17    and unsafe property within the territory of  a  municipality.
18    In   addition,   where  preliminary  evidence  indicates  the
19    presence or likely presence of a  hazardous  substance  or  a
20    release  or  a substantial threat of a release of a hazardous
21    substance on,  in,  or  under  the  property,  the  corporate
22    authorities  of the municipality may inspect the property and
23    test for the presence or release of hazardous substances.  In
24    any county having adopted by referendum or otherwise a county
25    health  department  as  provided  by  Division  5-25  of  the
26    Counties Code or its predecessor, the county  board  of  that
27    county may exercise the above-described powers with regard to
28    property  within  the  territory  of  any  city,  village, or
29    incorporated town having less than 50,000 population.
30        For purposes of this subsection (f):
31             (1)  "property" or  "real  estate"  means  all  real
32        property, whether or not improved by a structure;
33             (2)  "abandoned" means;
34                  (A)  the property has been tax delinquent for 2
 
                            -14-               LRB9103736MWks
 1             or more years;
 2                  (B)  the  property  is  unoccupied  by  persons
 3             legally in possession; and
 4             (3)  "unsafe" means property that presents an actual
 5        or  imminent threat to public health and safety caused by
 6        the release of hazardous substances; and
 7             (4)  "hazardous substances" means  the  same  as  in
 8        Section 3.14 of the Environmental Protection Act.
 9        The  corporate  authorities  shall  apply  to the circuit
10    court of the county in which the property is located (i)  for
11    an  order allowing the municipality to enter the property and
12    inspect and test substances on, in, or under the property; or
13    (ii) for an order authorizing the  corporate  authorities  to
14    take  action  with  respect to remediation of the property if
15    conditions on the  property,  based  on  the  inspection  and
16    testing authorized in paragraph (i), indicate the presence of
17    hazardous  substances.   Remediation shall be deemed complete
18    for purposes  of  paragraph  (ii)  above  when  the  property
19    satisfies  Tier  I, II, or III remediation objectives for the
20    property's  most  recent  usage,  as   established   by   the
21    Environmental  Protection  Act, and the rules and regulations
22    promulgated thereunder.  Where,  upon  diligent  search,  the
23    identity  or  whereabouts  of  the  owner  or  owners  of the
24    property, including  the  lien  holders  of  record,  is  not
25    ascertainable,  notice  mailed  to  the  person or persons in
26    whose name the real estate was last  assessed  is  sufficient
27    notice under this Section.
28        The  court shall grant an order authorizing testing under
29    paragraph (i) above upon a showing  of  preliminary  evidence
30    indicating  the  presence  or  likely presence of a hazardous
31    substance or a release  of  or  a  substantial  threat  of  a
32    release  of  a hazardous substance on, in, or under abandoned
33    property.  The preliminary evidence may include, but  is  not
34    limited to, evidence of prior use, visual site inspection, or
 
                            -15-               LRB9103736MWks
 1    records  of  prior environmental investigations.  The testing
 2    authorized by paragraph (i) above shall include any  type  of
 3    investigation   which   is  necessary  for  an  environmental
 4    professional to determine the environmental condition of  the
 5    property,  including  but  not limited to performance of soil
 6    borings and groundwater monitoring.  The court shall grant  a
 7    remediation order under paragraph (ii) above where testing of
 8    the  property  indicates that it fails to meet the applicable
 9    remediation objectives.  The hearing upon the application  to
10    the  circuit  court shall be expedited by the court and shall
11    be given precedence over all other suits.
12        The cost  of  the  inspection,  testing,  or  remediation
13    incurred  by  the municipality or by a lien holder of record,
14    including court  costs,  attorney's  fees,  and  other  costs
15    related  to the enforcement of this Section, is a lien on the
16    real  estate;  except  that  in   any   instances   where   a
17    municipality incurs costs of inspection and testing but finds
18    no  hazardous  substances  on  the  property  that present an
19    actual or imminent threat to public health and  safety,  such
20    costs  are not recoverable from the owners nor are such costs
21    a lien on the real estate.  The lien is superior to all prior
22    existing liens and encumbrances, except taxes  and  any  lien
23    obtained  under  subsection  (a)  or (e), if, within 180 days
24    after  the  completion  of  the   inspection,   testing,   or
25    remediation,  the  municipality  or the lien holder of record
26    who incurred the cost and expense shall file a notice of lien
27    for the cost and  expense  incurred  in  the  office  of  the
28    recorder in the county in which the real estate is located or
29    in the office of the registrar of titles of the county if the
30    real  estate  affected  is  registered  under  the Registered
31    Titles (Torrens) Act.
32        The notice must consist of a sworn statement setting  out
33    (i)  a  description  of  the  real  estate sufficient for its
34    identification, (ii) the amount  of  money  representing  the
 
                            -16-               LRB9103736MWks
 1    cost  and  expense incurred, and (iii) the date or dates when
 2    the cost and expense was incurred by the municipality or  the
 3    lien  holder  of  record.  Upon payment of the lien amount by
 4    the owner of or persons interested in the property after  the
 5    notice  of  lien  has  been filed, a release of lien shall be
 6    issued by the municipality, the person in whose name the lien
 7    has been filed, or the assignee of the lien, and the  release
 8    may  be  filed  of  record as in the case of filing notice of
 9    lien.
10        The lien may be  enforced  under  subsection  (c)  or  by
11    foreclosure   proceedings   as   in   the  case  of  mortgage
12    foreclosures under Article XV of the Code of Civil  Procedure
13    or mechanics' lien foreclosures; provided that where the lien
14    is  enforced  by  foreclosure  under  subsection (c) or under
15    either statute, the municipality may not proceed against  the
16    other  assets  of  the owner or owners of the real estate for
17    any costs that otherwise  would  be  recoverable  under  this
18    Section  but that remain unsatisfied after foreclosure except
19    where such additional  recovery  is  authorized  by  separate
20    environmental  laws.  An action to foreclose this lien may be
21    commenced at any time after the date of filing of the  notice
22    of   lien.     The  costs  of  foreclosure  incurred  by  the
23    municipality, including court  costs,  reasonable  attorney's
24    fees,  advances  to  preserve  the  property, and other costs
25    related to the enforcement of this subsection, plus statutory
26    interest, are a lien on the real estate.
27        All liens arising under  this  subsection  (f)  shall  be
28    assignable.   The  assignee  of  the lien shall have the same
29    power to enforce the lien as the assigning party, except that
30    the lien may not be enforced under subsection (c).
31    (Source: P.A.  89-235,  eff.  8-4-95;  89-303,  eff.  1-1-96;
32    90-393, eff. 1-1-98; 90-597, eff. 6-25-98; revised 9-16-98.)

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