G83-05CITY OF ELGIN
ORDINANCE NO. G83 -05
AN ORDINANCE
AMENDING TITLE 10 OF THE ELGIN MUNICIPAL CODE, 1976, . AS AMENDED,
ENTITLED "PUBLIC PEACE, MORALS AND WELFARE" BY ADDING A
NEW CHAPTER 10.44 THERETO ENTITLED "CHRONIC NUISANCE PROPERTY"
PASSED BY THE
CITY COUNCIL OF THE
CITY OF ELGIN
ON THIS 28`h DAY OF SEPTEMBER 2005
Published in pamphlet form by authority of the City
Council of the City of Elgin, Kane and Cook
Counties, Illinois, on this
30`h day of September 2005
STATE OF ILLINOIS )
) ss.
COUNTY OF KANE )
CERTIFICATE
I, Dolonna Mecum, certify that I am the duly appointed and acting municipal clerk
of the City of Elgin, Cook and Kane Counties, Illinois.
I further certify that on September 28, 2005, the Corporate Authorities of such
municipality passed and approved Ordinance No. G83 -05, which provided by its terms that it
should be published in pamphlet form.
The pamphlet form of Ordinance No. G83 -05, including the Ordinance and a
cover sheet thereof, was prepared, and a copy of such Ordinance was posted in the municipal
building commencing on September 30, 2005, and continuing for at least ten days thereafter.
Copies of such Ordinance were also available for public inspection upon request in the office of
the municipal clerk.
DATED at Elgin, Illinois, on September 30, 2005.
Municipal Clerk
(SEAL)
Ordinance No. G83 -05
AN ORDINANCE
AMENDING TITLE 10 OF THE ELGIN MUNICIPAL CODE, 1976,
AS AMENDED, ENTITLED "PUBLIC PEACE, MORALS AND WELFARE" BY ADDING A
NEW CHAPTER 10.44 THERETO ENTITLED "CHRONIC NUISANCE PROPERTY"
WHEREAS, the city council of the City of Elgin has determined it is necessary and desirable
to provide for the abatement of chronic nuisance properties within the City; and
WHEREAS, 65 ILCS 5/11 -60 -2 provides that the corporate authorities of each municipality
may define, prevent and abate nuisances; and
WHEREAS, the City of Elgin is a home rule municipality as defined in Article VII, Section
6A of the 1970 constitution of the State of Illinois; and
WHEREAS, a home rule unit may exercise any power and perform any function pertaining
to its government and affairs; and
WHEREAS, the definition of and abatement of chronic nuisance properties pertains to the
government and affairs of the City of Elgin; and
WHEREAS, property used for the purpose of the commission of illegal acts is directly and
indirectly injurious to the public health, safety, peace and welfare;
WHEREAS, property on which ongoing instances of illegal acts occurs encourages other
unlawful activities and diminishes property values in that area.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
ELGIN, ILLINOIS:
Section 1. That title 10 of the Elgin Municipal Code, 1976, as amended, entitled "Public
Peace, Morals and Welfare" be and is hereby further amended by adding a new Chapter 10.44 thereto
entitled "Chronic Nuisance Property" to read as follows:
"CHAPTER 10.44
CHRONIC NUISANCE PROPERTY
10.44.010 ABATEMENT OF CHRONIC NUISANCE PROPERTIES:
A. A Chronic Nuisance Property as defined in this chapter is declared to be a
nuisance. Any certain property within the City of Elgin which becomes a Chronic Nuisance
Property is in violation of this Chapter and is subject to its remedies.
B.
Any person in charge who permits property under his
or her ownership
or control to
be a Chronic
Nuisance Property shall be in violation of this Chapter
and subject to its
remedies.
10.44.020 DEFINITIONS:
CHRONIC NUISANCE PROPERTY: Property upon which three or more instances of any
one or any combination of the behaviors listed below have occurred during any one hundred twenty
(120) day period, as a result of any three (3) separate factual events that have been independently
investigated by any law enforcement agency.
A. Disorderly conduct as defined in 720 ILCS 5/26 -1.
B. Unlawful Use of Weapons as defined in 720 ILCS 5/24 -1 et seq.
C. Mob Action as defined in 720 ILCS 5/25 -1.
D. Discharge of a Firearm as defined in 720 ILCS 5/24 -1.2 and 1.5.
E. Gambling as defined in 720 ILCS 5/28 -1.
F. Possession, Manufacture or Delivery of Controlled Substance as defined in 720 ILCS
570/401 et seq.
G. Assault or Battery or Any Related Offense as defined in 720 ILCS 5/12 -1 et seq.
H. Sexual Abuse or Related Offenses as defined in 720 ILCS 5/12 -15 et seq.
Public Indecency as defined in 720 ILCS 5/11 -9 et seq.
Prostitution as defined in 720 ILCS 5/11 -14 et seq.
K. Criminal Damage to Property as defined in 720 ILCS 5/21 -1 et seq.
L. Possession, Cultivation, Manufacture or Delivery of Cannabis as defined in 720 ILCS
55011 et seq.
M. Illegal Consumption or Possession of Alcohol as defined in 235 ILCS 511 et seq.
N. Violations of Elgin Municipal Code Section 9.40.470(A), as amended, relative to
property care and maintenance.
0. Violation of any City of Elgin Ordinance or State of Illinois statute controlling or
regulating the sale or use of alcoholic beverages.
P. Violations of City of Elgin Property Maintenance Code Section 307, et seq., as
amended, relative to rubbish and garbage.
CONTROL: The ability to regulate, restrain, dominate, counteract or govern conduct that
occurs on that property.
OWNER: Any person, agent, partnership, limited liability company or corporation,
having any legal or equitable interest in the property.
PERMIT: To suffer, allow, consent to, acquiesce by failure to prevent, or expressly ascent
or agree to the doing of an act.
PERSON IN CHARGE: Any person in actual or constructive possession of a property,
including but not limited to an owner occupant of property under his or her domain, ownership or
control.
PROPERTY: Any real property, including land in that which is affixed, incidental or
pertinent to land, including but not limited to any premises, room, house, building, or structure or
any separate part or portion thereof, whether permitted or not.
10.44.030 REMEDY:
A. In the event a court determines property to be a Chronic Nuisance Property, the court
may order that the property be closed and secured against all use and occupancy for a period of not
less than thirty (30) days, but not more than one hundred and eighty (180) days, or the court may
employ any other remedy deemed by it to be appropriate to abate the nuisance.
B. In addition to the remedy provided in paragraph A above, the court may impose upon
the owner of the property and /or the person in charge of the property a civil penalty in the amount of
not less than One Hundred Dollars ($100.00) and not more than One Thousand Dollars ($1,000.00)
per day, payable to the City of Elgin, for each day the owner or the person in charge had actual
knowledge that the property was a public nuisance property and permitted the property to remain a
public nuisance property.
C. In determining what remedy or remedies it shall employ, the court may consider
evidence of other conduct which has occurred on the property, including, but not limited to:
1. The disturbance of neighbors;
2. The recurrence of loud and obnoxious noises;
3. Repeated consumption of alcohol in public; and
The repeated sale or possession of controlled substances on the premises.
10.44.040 ABATEMENT OF NUISANCE:
The Corporation Counsel may commence an action to abate any public nuisance as described
above. Upon being satisfied by affidavits or other sworn evidence that an alleged public nuisance
exists, the court may without notice or bond enter a temporary restraining order or preliminary
injunction to enjoin any defendant from maintaining such nuisance and may enter an order
restraining any defendant from removing or interfering with all property used in connection with the
public nuisance.
10.44.050 PROCEDURE:
When the Chief of Police receives two or more reports documenting the occurrence of
nuisance activity on or within a property, the Chief of Police shall independently review such reports
to determine whether they describe criminal acts. Upon such findings, the Chief of Police may:
A. Notify the person in charge in writing that the property is in danger of becoming a
Chronic Nuisance Property. Such notice shall be provided by either personal service or by certified
mail, addressed to the owner of the property and the person in charge at the address of the property
believed to be a Chronic Nuisance Property and also at such other address as may be shown on the
tax rolls of the county in which the property is located. The notice shall contain the following
information:
1. The street address or a legal description sufficient for identification of the
property.
2. A statement that the Chief of Police has information that the property may
constitute a Chronic Nuisance Property as defined by this Chapter, with a
concise description of the nuisance activities that may exist, or that have
occurred. The Chief of Police shall offer the person in charge an opportunity to
propose a course of action that the Chief of Police agrees will abate the
nuisance activities giving rise to the violation.
Demand that the person in charge respond to the Chief of Police within ten (10)
days to discuss the nuisance activities.
B. After complying with the notification procedures described herein when the Chief of
Police receives a report documenting the occurrence of a third nuisance activity at or within a
property and determines that the property has become a Chronic Nuisance Property, the Chief of
Police shall:
Notify the person in charge in writing that the property has been determined to
be a Chronic Nuisance Property. The notice shall contain the following:
a. The street address or legal description sufficient for identification of
the property;
b. A statement that the Chief of Police has determined the property to
be Chronic Nuisance Property with a concise description of the
nuisance activities leading to his/her findings; and
C. A demand that the person in charge or owner respond within ten
(10) days to the Chief of Police and propose a course of action that
the Chief of Police agrees will abate the nuisance activities giving rise
to the violation.
Such notice shall be provided by either personal service or by certified mail,
addressed to the owner of the property and to the person in charge at the
address of the property believed to be a Chronic Nuisance Property and also at
such other address as may be shown on the tax rolls of the county in which the
property is located. A copy of the notice shall also be posted at the property
after ten (10) days has elapsed from the service or mailing of the notice to the
person in charge and the person in charge has not contacted the Chief of Police.
2. If after the notification, but prior to the commencement of legal proceedings by
the City pursuant to this Chapter, a person in charge or owner stipulates with
the Chief of Police that the person in charge or owner will pursue a course of
action the parties agree will abate the nuisance activities giving rise to the
violation, the Chief of Police may agree to postpone legal proceedings for a
period of not less than ten (10) nor more than thirty (30) days, except in the
case of a nuisance activity as provided for herein where a search warrant was
executed at the property. If the agreed course of action does not result in the
abatement of the nuisance activity or if no agreement concerning abatement is
reached within thirty (30) days, the Chief of Police shall request authorization
for the Corporation Counsel to commence a legal proceeding to abate the
nuisance.
3. Concurrent with the notification procedures set forth herein, the Chief of Police
shall send copies of the notice, as well as any other documentation which
supports legal proceedings to the Corporation Counsel.
4. The failure of any person to receive notice that the property may be a Chronic
Nuisance Property shall not invalidate or otherwise affect the proceedings
under this Chapter.
C. When a person in charge makes a response to the Chief of Police as required above,
any conduct or statements made in connection with the furnishing of that response shall not
constitute an admission that any nuisance activities have or are occurring. This subsection does not
require the exclusion of any evidence which is otherwise admissible or offered for any other purpose.
E
D. References to the Chief of Police in this section shall mean the Chief of Police or the
Chief of Police's designee.
10.44.060 COMMENCEMENT OF ACTION, BURDEN OF PROOF:
A. In an action seeking closure of a Chronic Nuisance Property, the City shall have the
initial burden of showing by preponderance of the evidence that the property is a Chronic Nuisance
Property.
B. It is a defense to an action seeking the closure of Chronic Nuisance Property that the
owner of the property at the time in question could not, in the exercise of reasonable care or
diligence, determine that the property had become a public nuisance property, or could not, in spite
of the exercise of reasonable care and diligence, control the conduct resulting in the property being
deemed a Chronic Nuisance Property as provided for herein. It shall also be a defense for an owner,
prior to the notification provided for at Section 10.44.050 (A) herein, to, in good faith, notify a law
enforcement agency of suspected illegal activity and to process an eviction action for illegal activity
against any tenant or occupant.
C. In establishing the amount of any civil penalty requested, the court may consider any
of the following factors if they need be found appropriate, and shall site those found applicable:
The action or lack of action taken by the person in charge to mitigate or correct
the problem at the property.
2. Whether the problem at the property was repeated or continuous.
3. The magnitude or gravity of the problem.
4. The cooperation of the person in charge with the City.
5. The cost of the City investigating and correcting or attempting to correct the
condition.
10.44.070 EMERGENCY CLOSING PROCEDURE:
A. In the event that it is determined that the property is an immediate threat to the public
safety and welfare, the City may apply to the court for such interim relief, as is deemed by the Chief
of Police to be appropriate. In such an event, the notification provisions provided for herein need not
be complied with; however, the City shall make a diligent effort to notify the person in charge prior
to a court hearing.
B. In the event that the court finds the property constitutes a Chronic Nuisance Property
as defined in this Section, the court may order the remedy set out above, in addition, in the event that
it also finds the person in charge had knowledge of activities or conditions of the property
constituting or violating this Chapter and permitted the activities to occur, the court may assess a
civil fine as provided above.
C. The court may authorize the City of Elgin to physically secure the property against use
or occupancy in the event the owner fails to do so within the time specified by the court. hi the event
that the City is authorized to secure the property, all costs reasonably incurred by the City to affect a
closure shall be made and assessed as a lien against the property. If used herein, "costs" mean these
costs actually incurred by the City for the physical securing of the property, as well as, tenant
relocation costs.
D.
The City shall prepare
a statement of costs of closure and shall thereafter submit said
statement
to the
court for its review.
If no objection of the statement is made within the period
described
by the
court, a lien in said amount may be recorded against said property.
E. Any person who is assessed the costs of closure and/or any civil penalty by the court
shall be personally liable for the payment thereof to the City.
10.44.080 SEVERABILITY:
If any provision, clause, sentence, paragraph, section or part of this Chapter or application
thereof to any person or circumstance, shall for any reason be judged by a court of competent
jurisdiction to be unconstitutional or invalid, said judgment shall not affect, or otherwise invalidate
the remainder of this Chapter and the application of such provision to other persons or
circumstances, but shall be confined in its operation to such revision, clause, sentence, paragraph,
section or part thereof directly involved in the controversy in which such judgment shall have been
rendered into the person or circumstances involved. It is hereby declared to be the legislative intent
of the city council that this Chapter would have been adopted had such unconstitutional or invalid
provisions, clause, sentence, paragraph, section or part thereof not been included."
Section 2. That all ordinances or parts of ordinances in conflict with the provisions of this
ordinance be and are hereby repealed.
Section 3. That this ordinance shall be in full force and effect ten days after its passage and
publication in the manner provided by law.
Passed: September 28, 2005
Omnibus Vote: Yeas: 7 Nays:
Recorded: September 29, 2005
Published: September 30, 2005
Attest:
Dolonna Mecum, City Clerk