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G52-13 Ordinance No. G52-13 AN ORDINANCE AMENDING CHAPTER 10.44 OF THE ELGIN MUNICIPAL CODE, 1976, AS AMENDED, 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/I1-60-2 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, properties used for the purpose of the commission of illegal acts are directly and indirectly injurious to the public health, safety, peace and welfare; WHEREAS, properties on which ongoing instances of illegal acts occurs encourage other unlawful activities, diminish property values in that area, and cause or threaten to cause danger to persons and/or properties in that area; and WHEREAS, the City Council of the City of Elgin hereby find that properties on which ongoing instances of illegal acts occur constitute and are declared to be public nuisances that shall be abated; and NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS: Section 1. That Chapter 10.44 of the Elgin Municipal Code, 1976, as amended, entitled "Chronic Nuisance Property" be and is hereby amended to read as follows: Chapter 10.44 CHRONIC NUISANCE PROPERTY 10.44.010: ABATEMENT OF CHRONIC NUISANCE PROPERTIES: 10.44.020: DEFINITIONS: 10.44.030: VIOLATIONS: 10.44.040: PROCEDURES: 10.44.050: COMMENCEMENT OF ACTION; REMEDIES: 10.44.060: BURDEN OF PROOF; DEFENSES: 10.44.070: CLOSING PROCEDURES: 10.44.080: SEVERABILITY: 10.44.010 ABATEMENT OF CHRONIC NUISANCE PROPERTIES: A. A Chronic Nuisance Property as defined in this chapter is declared to be a public 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 owner or 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: ADMINISTRATIVE HEARING OFFICER: A hearing officer authorized to hear and adjudicate nonvehicular code violations under the City of Elgin administrative adjudication system as set forth in chapter 1.25 of this code. CHRONIC NUISANCE PROPERTY: Property upon which three (3) or more instances of any one or any combination of the activities, behaviors, or conduct listed below have occurred during any twelve (12) month period, based upon any three (3) separate factual events that have been independently investigated by any law enforcement or code enforcement agency, resulting in either (1) a case report documenting a violation of either, federal, state, or municipal law as having occurred on the property, or (2) an enforcement action proceeding under either federal, state or municipal law against any owner, tenant, person in charge or other person associated with the property for illegal activity occurring at the property, or within one block or one thousand feet of the property. A. Any offense defined and prohibited by Article 9 of the Illinois Criminal Code of 2012, entitled "Homicide," 720 Illinois Compiled Statutes 5/9-1 et seq., as amended. B. Any offense defined and prohibited by Article 10 of the Illinois Criminal Code of 2012, entitled "Kidnapping and Related Offenses," 720 Illinois Compiled Statutes 5110-1 et seq., as amended. C. Any offense defined and prohibited by Article 11 of the Illinois Criminal Code of 2012, entitled "Sex Offenses," 720 Illinois Compiled Statutes 5/11-1 et seq., as amended, or by Chapter 10.37 of the Elgin Municipal Code, entitled "Prostitution and Prostitution Related Offenses," as amended. D. Any offense defined and prohibited by Article 12 of the Illinois Criminal Code of 2012, entitled "Bodily Harm," 720 Illinois Compiled Statutes 5/12-1 et seq., as amended, or by Chapter 10.12 of the Elgin Municipal Code, entitled "Assault and Battery," as amended. E. Any offense defined and prohibited by Article 16 of the Illinois Criminal Code of 2012, entitled "Theft and Related Offenses," 720 Illinois Compiled Statutes 5/16-1 et seq., as amended, or by Chapter 10.56 of the Elgin Municipal Code, entitled "Theft," as amended. F. Any offense defined and prohibited by Article 18 of the Illinois Criminal Code of 2012, entitled "Robbery," 720 Illinois Compiled Statutes 5/18-1 et seq., as amended. G. Any offense defined and prohibited by Article 20 of the Illinois Criminal Code of 2012, entitled "Arson," 720 Illinois Compiled Statutes 5/20-1 et seq., as amended. H. Any offense defined and prohibited by Article 21, Subdivision 1 of the Illinois Criminal Code of 2012, entitled "Damage to Property," 720 Illinois Compiled Statutes 5/21-1 through 5/21-1.5, inclusive, as amended, or by Chapter 10.48 of the Elgin Municipal Code, entitled "Destruction of Property," as amended. I. Any offense defined and prohibited by Article 21, Subdivision 5 of the Illinois Criminal Code of 2012, entitled "Trespass," 720 Illinois Compiled Statutes 5/21-2 through 5/21-9, inclusive, as amended, or by Chapter 10.52 of the Elgin Municipal Code, entitled "Trespass," as amended. J. Any offense defined and prohibited by Article 24 of the Illinois Criminal Code of 2012, entitled "Deadly Weapons," 720 Illinois Compiled Statutes 5/24-1 et seq., as amended, or by Chapter 10.88 of the Elgin Municipal Code, entitled "Discharge of Firearms," as amended. K. Any offense defined and prohibited by Article 25 of the Illinois Criminal Code of 2012, entitled "Mob Action," 720 Illinois Compiled Statutes 5/25-1 et seq., as amended or by Chapter 10.42 of the Elgin Municipal Code, entitled"Gangs," as amended. L. Any offense defined and prohibited by Section 26-1 of the Illinois Criminal Code of 2012, entitled "Disorderly Conduct," 720 Illinois Compiled Statutes 5/26-1, as amended, or by Chapter 10.32 of the Elgin Municipal Code, entitled "Disorderly Conduct," as amended. M. Any offense defined and prohibited by Article 28 of the Illinois Criminal Code of 2012, entitled "Gambling and Related Offenses," 720 Illinois Compiled Statutes 5/28-1 et seq., as amended. N. Any offense defined and prohibited by Article 31 of the Illinois Criminal Code of 2012, entitled "Interference with Public Officers," 720 Illinois Compiled Statutes 5/3 1-1 et seq., as amended. O. Any offense defined and prohibited by the Illinois Cannabis Control Act, 720 Illinois Compiled Statutes 55011 et seq., as amended. P. Any offense defined and prohibited by the Illinois Controlled Substances Act, 720 Illinois Compiled Statutes 570/100 et seq., as amended. Q. Any gang-related activity, enterprise, pursuit, or undertaking, or any gang-related criminal offense, as described in the Illinois Streetgang Terrorism Omnibus Prevention Act, 740 Illinois Compiled Statutes 147/1 et seq., as amended. R. Any inchoate offense defined and prohibited by Article 8 of the Illinois Criminal Code of 2012, entitled "Inchoate Offenses," 720 Illinois Compiled Statutes 5/8-1 et seq., as amended, relating to any of the activities, behaviors, or conduct identified in this section. S. Violations of subsection 9.40.470.A of this code relative to property care and maintenance. T. Violations of any City of Elgin ordinance or State of Illinois statute controlling or regulating the sale, consumption, possession or use of alcoholic beverages. U. Violations of City of Elgin Property Maintenance Code Section 308, et seq., as amended, relative to rubbish and garbage. V. Violations of the Elgin Municipal Code relating to the unlawful occupancy of or overcrowding at a property. rW. Violations of section 9.17.050 of this code relative to graffiti removal. X. Violations of Chapter 10.36 of this coder relative to loitering. Y. Violations of Chapter 10.30 of this code relative to noise. Z. Violations of Chapter 7.04 of this code relative to animals. AA. Violations of Chapter 10.33 of this code relative to public intoxication. CONTROL: The ability to regulate, restrain, dominate, counteract, govern, direct, or affect the conduct that occurs on a property. ENFORCEMENT ACTION: Any of the following actions taken by a law enforcement or code enforcement agency: (1) the physical arrest of an individual, or (2) the issuance of a citation for a violation of law; or (3) a referral of charges to the state's attorney, corporation counsel, or other appropriate authority for prosecution. OWNER: Any person, agent, partnership, limited liability company or corporation, having any legal or equitable interest whatsoever in the property, together with the buildings, structures, fixtures, or improvements located thereon. Owner includes, but is not limited to: A. A mortgagee in possession in whom is vested 1. All or part of the legal title to the property; or 2. All or part of the beneficial ownership and/or right to the present use and enjoyment of the property; B. An occupant or other person who, by any means whatsoever, has the ability, authority, or right to control what occurs on the property. PERMIT: To suffer, allow, consent to, acquiesce by failure to prevent, or expressly assent or agree to the doing of an act. PERSON: Any natural person, agent, association, firm, partnership, corporation or other entity capable of owning, occupying, or using property in the City of Elgin. PERSON IN CHARGE: Any person in actual or constructive possession of a property, including but not limited to an owner or occupant of a property under his or her domain, ownership or control. PROPERTY: Any real property, including land and that which is affixed, incidental or appurtenant to land, including but not limited to any premises, room, house, business, parking area, loading area, landscaping, yard, building or structure, or any separate part or portion thereof, whether permitted or not. 10.44.030 VIOLATIONS: A. It shall be unlawful for any property in the City to become or remain a chronic nuisance property as defined in this chapter. B. Any person or person in charge who (1) encourages, aids, abets or permits a property to become a chronic nuisance property; (2) encourages, aids, abets or permits a property to continue as chronic nuisance property; or (3) fails to implement reasonable and warranted measures to abate the nuisance condition at a chronic nuisance property, as specified by the chief of police or his designee, shall be in violation of this chapter. C. Each violation of this chapter shall be subject to the remedies set forth in this chapter, and each day that a violation continues shall be considered a separate and distinct offense. 10.44.040 PROCEDURES: Whenever the Chief of Police receives reports and/or documentation of enforcement actions documenting two or more occurrences of activities, behaviors or conduct potentially constituting nuisance activity arising from separate factual events within a twelve (12) month period on or within a property, the Chief of Police shall independently review such reports and/or �"* documentation of enforcement action to determine whether they describe offenses constituting nuisance activities as set forth in section 10.44.020 of this chapter. In the event that the Chief of Police determines that said reports and/or documentation of enforcement action in fact describe offenses constituting such nuisance activities arising from two or more separate factual events, the Chief of Police may take the following actions: 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. 3. 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 set forth in subsection 10.33.030.A, when the Chief of Police receives an additional report and/or documentation of enforcement action documenting the occurrence of nuisance activity within the same twelve (12) month period at or within a property, the Chief of Police shall independently review such report and/or documentation of enforcement action to determine whether it describes an offense constituting a nuisance activity as set forth in section 10.44.020 of this chapter. In the event that the Chief of Police determines that said report and/or documentation of enforcement action in fact describes an offense constituting such nuisance activity and further determines that the property has become a Chronic Nuisance Property, the Chief of Police shall: 1. 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 that 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. Such action plan may include, but not be limited to, the lawful eviction of tenants engaged in the nuisance activities, taking actions to prohibit third parties engaged in the nuisance activities from being present on the property, the hiring of security officers, and/or the installation of security cameras. 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. D. References to the Chief of Police in this section shall mean the Chief of Police or the Chief of Police's designee. 10.44.050 COMMENCEMENT OF ACTION; REMEDIES: A. The Corporation Counsel may commence an action to abate any public nuisance as described above. In the event a court or administrative hearing officer determines property to be a Chronic Nuisance Property, the court or administrative hearing officer 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, and/or the court or administrative hearing officer may order a defendant to take other reasonable, timely and lawful measures to abate the nuisance activity at the property. In addition, the court or administrative hearing officer may, on the motion of the City and upon being satisfied by affidavits or other sworn evidence that an alleged public nuisance exists, enter a temporary restraining order or preliminary injunction to enjoin any defendant from maintaining such nuisance. B. In addition to the remedy provided in subsection A of this section, any person found in violation of any of the provisions or failing to comply with any of the mandatory requirements of this chapter shall be guilty of an offense. In the event of a violation, the court or administrative hearing officer 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 that the violation is found to have existed or continued. In establishing the amount of any civil penalty requested, the court or administrative hearing officer may consider any of the following factors if they need be found appropriate, and shall cite those found applicable: 1. 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 incurred by the City in investigating and correcting or attempting to correct the condition. C. In determining what remedy or remedies it shall employ, the court or administrative hearing officer 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; 4. The repeated sale or possession of controlled substances or violations of the Illinois Cannabis Control Act, 720 ILCS 55011 et seq., as amended, on the premises; 5. Failure to attend the city's landlord training class and/or failure to utilize a crime free lease addendum pursuant to chapter 6.37 of this code; 6. Repeated violations of section 308 of the city Property Maintenance Code, chapter 16.12, as amended, relative to rubbish and garbage. D. In addition to any other remedies or penalties under this chapter, a finding that a property has become or Chronic Nuisance Property shall constitute sufficient grounds for the revocation of any rental license that has previously been issued with respect to the property pursuant to section 6.37.090 of the Elgin Municipal Code. 10.44.060 BURDEN OF PROOF; DEFENSES: 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 shall be a defense to an action seeking the closure of a Chronic Nuisance Property that an owner, prior to the notification provided for at Section 10.44.030.A herein, and in good faith, notified a law enforcement agency of suspected illegal activity and initiated the process to commence an eviction action for illegal activity against any tenant or occupant. 10.44.070 CLOSING PROCEDURES: 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 or administrative hearing officer 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 or administrative hearing officer finds the property constitutes a Chronic Nuisance Property as defined in this Section, the court or administrative hearing officer 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 or administrative hearing officer may assess a civil fine as provided above. C. The court or administrative hearing officer 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. In 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 or administrative hearing officer, a lien in said amount may be recorded against said property. elk E. Any person who is assessed the costs of closure and/or any civil penalty by the court or administrative hearing officer 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 to the extent of any such conflict. 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. David J. Ka tain, ayor Presented: November 20, 2013 Passed: November 20, 2013 Omnibus Vote: Yeas: 9 Nays: 0 Recorded: November 20, 2013 Published: : November 22, 2013 Attest: Kimberly Dewis, Ci6 Clerk ;