The law of building regulation is grounded on the police power of the state. This power is the source of all authority to enact building regulations. In terms of how it is used, police power is the power of the state to legislate for the general welfare of its citizens. This power enables the passage of laws such as a Property Maintenance Code. It is from the police power delegated by the state legislature that local governments are able to enact building regulations. If the state legislature has limited this power in any way, the municipality may not exceed these limitations. While the municipality may not further delegate its police power (e.g. by delegating the burden of determining code compliance to the building owner, contractor or architect), it may turn over the administration of building regulations to a municipal official, such as a Code Official, provided that he or she is given sufficient criteria to clearly establish the basis for decisions as to whether or not a proposed building conforms to the Code.
Chapter 1 is largely concerned with maintaining "due process of law" in enforcing the provisions contained in the body of the Code. Only through careful observation of the administrative provisions can the Code Official reasonably hope to demonstrate that "equal protection under the law" has been provided. While it is generally assumed that the administrative and enforcement sections of a code are geared toward the responsibilities of the Code Official, the provisions also establish the rights and privileges of the design professional, contractor and building owner.
Chapter 1 establishes the necessary legal basis for enforcement of the Code by the authority having jurisdiction. All of the police powers inherent in enforcing minimum standards for the use and maintenance of buildings must follow the line of authority, from the U.S. Constitution to the state to the actual enforcer. Chapter 1 defines the role and responsibilities of the authority having jurisdiction. To protect all parties from an unfair enforcement action, this chapter also sets forth due process that requires corrective actions to be accomplished in a constitutional manner. Police powers are not unlimited and this chapter identifies those limitations.
This section sets forth the scope and intent of the Code as it applies to existing structures.
These regulations shall be known as the "Zoning and Property Maintenance Code"
of the Village of Colfax, hereinafter referred to as "This Code".
The purpose of this section is to identify the adopted regulations by insertion of the name of the adopting jurisdiction into This Code.
This ordinance, with its enacting clause, coincides with the proposed ordinance submitted by the Zoning Board heretofore appointed by the said Village of Colfax. Together with the proposed map, the following symbols represent the following classifications:
R - represents single family dwellings or
multiple family dwellings
M - represents residential mobile homes
I - represents industrial
B - represents business
1.) Dividing the Village of Colfax, Illinois, into districts;
2.) Regulating and restricting the location and use of buildings, structures, and land for trade, industry, residence, and other uses within these districts;
3.) Regulating and restricting the intensity of such cases;
4.) Specifying minimum lot sizes, setbacks, side, rear, and front yards;
5.) Restricting building heights;
6.) Requiring approved water supply and sewage facilities;
7.) Requiring adequate off-street parking facilities;
8.) Providing regulations for new subdivision plats;
9.) Providing for the enforcement of and providing penalties for violations of the provisions hereof;
10.) Providing for the amendment of such regulations and the boundaries of districts pursuant to the powers and special powers vested in corporate authorities.
To the end that adequate light, pure air, and safety from fire and other dangers may be secured; that the taxable value of land throughout the municipality may be conserved; that congestion in public streets may be lessened or avoided; and that the public health, safety, comfort, morals, civic appearance, and welfare may otherwise be promoted.
This section sets forth the scope and intent of This Code as it applies to existing structures.
The provisions of This Code shall apply to all existing residential and nonresidential structures and all existing premises and constitute minimum requirements and standards for premises, structures, equipment and facilities for light, ventilation, space, heating, sanitation, protection from the elements, life safety, safety from fire and other hazards, and for safe and sanitary maintenance, the responsibility of owners, operators and occupants, the occupancy of existing structures and premises, and for administration, enforcement and penalties.
This section establishes the broad purpose of This Code - to protect the public health, safety and welfare in both existing residential and nonresidential structures and on all existing premises.
Four specific areas are addressed in greater detail in subsequent sections:
? Establishing minimum maintenance standards for such elements as basic equipment, light, ventilation, heating, sanitation, and fire safety.
? Fixing responsibility among owners, operators, and occupants for following the Code.
? Regulating the use of existing structures and premises.
? Providing for administration, enforcement, and penalties.
These four categories provide communities with the tools to reduce risks created by deteriorated or unsafe buildings and help communities upgrade and maintain other existing structures.
This Code shall be construed to secure its expressed intent, which is to ensure public health, safety, and welfare in so far as they are affected by the continued occupancy and maintenance of structures and premises. Existing structures and premises that do not comply with these provisions shall be altered or repaired to provide a minimum level of health and safety as required herein.
This Code is intended to provide requirements addressing the public health, safety and welfare as they relate to the use and maintenance of existing structures and premises. This Code requires existing structures and premises that are not in compliance with This Code to be altered or repaired to meet the code. This Code requirements are intended to represent the minimum acceptable level of public health and safety.
If a section, subsection, sentence, clause or phrase of This Code is, for any reason, held to be unconstitutional, such decision shall not affect the validity of the remaining portions of This Code.
Only invalid sections of This Code (as established by the court of jurisdiction) can be set aside. This is essential to safeguard the application of the code text to situations whereby a provision of This Code is declared illegal or unconstitutional. This section would preserve the legislative action that put the legal provisions in place.
This section sets forth the administrative provisions for applying This Code to various conditions related to its application.
The provisions of This Code shall apply to all matters affecting or relating to structures and premises, as set forth in Section 101. Where, in a specific case, different sections of This Code specify different requirements, the most restrictive shall govern.
Equipment, systems, devices, and safeguards required by This Code or a previous regulation or code under which the structure or premises was constructed, altered or repaired shall be maintained in good working order. No owner, operator, or occupant shall cause any service, facility, equipment or utility which is required under this section to be removed from or shut off from or discontinued for any occupied dwelling, except for such temporary interruption as necessary while repairs or alterations are in progress. The requirements of This Code are not intended to provide the basis for removal or abrogation of fire protection and safety systems and devices in existing structures. Except as otherwise specified herein, the owner or the owner's designated agent shall be responsible for the maintenance of buildings, structures and premises.
102.3 EXISTING REMEDIES.
The provisions in This Code shall not be construed to abolish or impair existing remedies of the jurisdiction or its officers or agencies relating to the removal or demolition of any structure which is dangerous, unsafe and unsanitary.
? Section 110 establishes one set of criteria and procedures that may be used to demolish dangerous, unsafe or unsanitary buildings. This section permit's a jurisdiction to continue to use any remedies already adopted for demolishing buildings. In essence, a community may employ several procedures for removing dangerous buildings. It is advisable that one procedure be chosen over another to avoid confusion and errors in processing the demolition action.
Repairs, maintenance work, alterations or installations which are caused directly or indirectly by the enforcement of This Code shall be executed and installed in a workmanlike manner and installed in accordance with the manufacturer's installation instructions.
(See definition of "Workmanlike" in Chapter 2).
102.5 REFERENCED CODES AND STANDARDS.
The codes and standards referenced in This Code shall be those that are listed in Chapter 8 and considered part of the requirements of This Code to the prescribed extent of each such reference. Where differences occur between provisions of This Code and the referenced standards, the provisions of This Code shall apply.
? A referenced standard or portion thereof is enforcement able to the same extent as if the content of the standard were included in the body of the Code. For example, Section 604.2 references the "International Code Council Electrical Code Administrative Provisions" for sizing the electrical main service for a building. The use and application of referenced standards are limited to those portions of the standards that are specifically identified in This Code. It is the intention of This Code to be in harmony with the referenced standards. If conflicts occur because of scope or purpose, This Code text governs.
102.6. REQUIREMENTS NOT COVERED BY THIS CODE.
? Requirements necessary for the strength, stability, or proper operation of an existing fixture, structure, or equipment or for the public safety, health, and general welfare, not specifically covered by This Code, shall be determined by the Code Official.
Evolving technology in our society will inevitably result in a situation or circumstance in which This Code is comparatively silent on an identified hazard. The reasonable application of This Code to any hazardous, unforeseen condition is provided for in this section. Clearly such a section is needed as well as the Code Official's judicious and reasonable application. The purpose of the section, however, is not to impose requirements that may be preferred over explicit code requirements. Additionally, the section can be utilized to implement the general performance-oriented language of This Code to specific enforcement situations.
DEPARTMENT OF PROPERTY
The executive official in charge of the Property Maintenance Department is named the "Code Official" by this section. In actuality, the person who is in charge of the department may hold a different title, such as building commissioner, existing building inspector, housing inspector or construction official. For the purpose of This Code, that person is referred to as the "Code Official".
The Code Official shall be appointed by the chief appointing authority of the jurisdiction; and the Code Official shall not be removed from office except for cause and after full opportunity to be heard on specific and relevant charges by and before the appointing authority.
This Code/Ordinance shall be administered and enforced by the Zoning Enforcing Officer/Code Official appointed by the President of the Board of Trustees and confirmed by the Board of Trustees, who is hereby designated and herein referred to as the Enforcing Officer/Code Official.
This section establishes the Code Official as an appointed position from which he or she cannot be removed, except for cause subject to a due process review.
This section provides the Code Official with the authority to appoint other individuals to assist with the administration and enforcement of This Code. These individuals have the authority and responsibility as designated by the Code Official.
A Deputy Enforcing Officer/Code Official shall be appointed in the same manner as the Enforcing Officer/Code Official and shall have the same powers and duties as the Enforcing Officer/Code Official whenever the Enforcing Officer/Code Official is unable to act for any reason, including his absence.
The Code Official, officer or employee charged with the enforcement of This Code, while acting for the jurisdiction, shall not hereby be rendered liable personally, and is hereby relieved from all personal liability for any damage accruing to persons or property as a result of an act required or permitted in the discharge of official duties.
The Code Official is not intended to be held liable for those actions performed in accordance with This Code in a reasonable or lawful manner. The responsibility of The Code Official in this regard is subject to local, state and federal laws that may supersede this provision. This section further established that the Code Official (or subordinates) is not liable for costs in any legal action instituted in response to the performance of lawful duties. These costs are to be borne by the jurisdiction. The best way to be certain that the Code Official's action is a "lawful duty" is to always cite the applicable code section on which the enforcement action is based.
The fees for activities and services performed by the department in carrying out its responsibilities under This Code shall be as indicated in the following schedule.
NEED TO INSERT A FEE SCHEDULE FOR THE VILLAGE OF COLFAX IN THIS SECTION.
? A published fee schedule must be established for permits and inspections. Ideally, the department should generate revenues that cover operating costs and expenses. The permit fee schedule is an integral part of this process.
DUTIES AND POWERS OF THE CODE OFFICIAL
The duty of the Code Official is to enforce This Code. Because the Code Official must also act on all questions related to this responsibility, except as specifically exempted by statutory requirements or elsewhere in This Code, he or she is the "authority having jurisdiction" for all matters relating to This Code and its enforcement. It is the duty of the Code Official both to interpret and to determine compliance with This Code. Code compliance will not always be easy to determine and will require the judgment and expertise of the Code Official.
104.2 RULE-MAKING AUTHORITY.
The Code Official has the administrative authority to promulgate rules and regulations that serve to interpret and supplement the provisions of This Code as long as such rules conform to the intent of This Code. Most importantly, these rules are not intended to set aside or waive any code provision, but are intended to implement code compliance. Additionally, the rules are not to conflict with accepted engineering practices or reduce the level of safety prescribed by This Code. The most frequent use of this authority is the promulgation of the administrative rules and procedures for the department's efficient and effective operation. An example of the content of administrative rules is the type of work that is required to be inspected and the notice that must be provided to the department for such inspections. Certain conditions may exist or arise that are geographically dependent, and the department may promulgate rules related to the climate, soils, or other local environmental conditions.
The Code Official or designee is required to make the necessary inspections to determine compliance with This Code or may accept written reports of inspections by an approved agency. The inspection of the work in progress or that is already accomplished is another significant element in determining code compliance. While a department does not have the resources to inspect every aspect of all work, the required inspections are those that are dictated by administrative rules and procedures based on many parameters, including available inspection resources. In order to expand the available resources, the Code Official may approve an inspection agency that, in his or her opinion, possesses the proper qualifications to perform the inspections. When unusual or complex technical issues arise relative to inspections, the Code Official has the authority to seek the opinion and advice of experts. A technical report from an expert requested by the Code Official can be used to assist in the approval process.
104.4 Right of entry.
The Code Official is authorized to enter the structure or premises at reasonable times to inspect subject to constitutional restrictions on unreasonable searches and seizures. If entry is refused or not obtained, the Code Official is authorized to pursue recourse as provided by law.
This section establishes the right of the Code Official to enter the premises in order to make the inspections required by Section 104.3. The right to enter structures or premises is limited.
1. To protect the right of privacy, the owner or occupant must grant the Code Official permission before an interior inspection of the property can be conducted. Permission is not required for inspections that can be accomplished from within the public right-of-way.
2. Such access may be denied by the owner or occupant. Unless the inspector has reasonable cause to believe that a violation of This Code exists, access may be unattainable.
3. Code Officials must present proper identification and request admittance during reasonable hours - usually the normal business hours of the establishment - to be admitted.
4. Inspections must be aimed at securing or determining compliance with the provisions and intent of the regulations that are specifically within the established scope of the Code Official's authority.
Searches of a private residence to gather information for the purpose of enforcing codes, ordinances or regulations are considered unreasonable and are prohibited by the Fourth Amendment to the U.S. Constitution. "Reasonable Cause" in the context of this section must be distinguished from "Probable Cause," which is required to gain access to property in criminal cases. The burden of proof establishing reasonable cause may vary among jurisdictions. Usually, an inspector must show that the property is subject to inspection under the provisions of This Code; that the interests of the public health, safety and welfare outweigh the individual's right to maintain privacy; and that such an inspection is required solely to determine compliance with the provisions of This Code.
Many jurisdictions do not recognize the concept of an administrative warrant and may require the Code Official to prove probably or reasonable cause in order to gain access upon refusal. This burden of proof is usually more substantial, often requiring the Code Official to stipulate in advance why access is needed (usually access is restricted to gathering evidence for seeking an indictment or making an arrest;) what specific items or information is sought; its relevance to the case against the individual subject; how knowledge of the relevance of the information or items sought was obtained; and how the evidence sought will be used. In all such cases, the right to privacy must always be weighed against the right of the Code Official to conduct an inspection to verify that the public health, safety and welfare are not in jeopardy. Such important and complex constitutional issues should be discussed with the jurisdiction's legal counsel. Jurisdictions should establish procedures for securing the necessary court orders when an inspection is deemed necessary following a refusal.
This section requires the Code Official (including by definition all authorized representatives) to carry identification in the course of conducting the duties of the position. The identification removes any question as to the purpose and authority of the inspector.
104.6 Notices and orders.
An important element of code enforcement is the necessary advisement of deficiencies, which is accomplished through notices and orders. The Code Official is required to issue orders to abate illegal or unsafe conditions. Section 107 contains additional information for these notices.
104.7 Department records.
In keeping with the need for an efficiently conducted business practice, the Code Official must keep official records pertaining to fees collected, inspections, notices and orders issued. Such documentation provides a valuable source of information if questions arise throughout the life of the building and its occupancy regarding outstanding preexisting code violations or conditions.
Whenever there are practical difficulties involved in carrying out the provisions of This Code, the Code Official shall have the authority to grant modifications for individual reasons make the strict letter of This Code impractical and the modification is in compliance with the intent and purpose of This Code and that such modification does not lessen health, life and fire safety requirements. The details of action granting modifications shall be recorded and entered in the department files.
The Code Official may amend or make exceptions to This Code as needed where strict compliance is impractical. Only the Code Official has the authority to grant modifications. Consideration of a particular difficulty is to be based on the application of the owner and a demonstration that the intent of This Code is accomplished. This section is not intended to permit setting aside or ignoring a code provision; rather, it is intended to provide for the acceptance of equivalent protection. For example, a Code Official might decide to accept the installation of a sprinkler system throughout the building instead of upgrading certain walls to have a fire-resistance rating. The modification of requirements would be based on the equivalent protection of the sprinkler system to the upgraded walls. Such modifications do not, however, extend to actions that are necessary to correct violations of This Code. In other words, a code violation or the expense of correcting one cannot constitute a practical difficulty.
Filing the details of a modification action is necessary if the reasons for the modification are subject to review. Comprehensive written records are an essential part of an effective administrative system. Unless clearly written records of the considerations and documentation utilized in the modification process are created and maintained, subsequent enforcement action will be difficult to support and will be inconsistent.
105.2 Alternative materials, methods and equipment.
This Code is not intended to inhibit innovative ideas or technological advances. A comprehensive regulatory document cannot envision and then address all future innovations in the industry. As a result, This Code must be applicable to and provide a basis for the approval of an increasing number of newly developed, innovative materials, systems and methods for which no code text or referenced standards yet exist. The fact that a material, product or method of construction is not specifically described in This Code is not an indication that its use is intended to be prohibited. The Code Official is expected to apply sound technical judgment in accepting materials, systems or methods that, while not anticipated by the drafters of the current code text, can be demonstrated to offer equivalent performance. The Code Official is responsible for determining if a requested alternative provides the equivalent level of protection of the public health, safety and welfare as required by This Code.
106.1 Unlawful acts.
It shall be unlawful for a person, firm or corporation to be in conflict with or in violation of any of the provisions of this code.
106.2 Notice of violation.
The Code Official shall serve a notice of violation or order in accordance with Section 107.
106.3 Prosecution of violation.
Any person failing to comply with a notice of violation or order served in accordance with Section 107 shall be deemed guilty of a misdemeanor or civil infraction as determined by the local municipality, and the violation shall be deemed a strict liability offense. If the notice of violation is not complied with , the Code Official shall institute the appropriate proceeding at law or in equity to restrain, correct or abate such violation, or to require the removal or termination of the unlawful occupancy of the structure in violation of the provisions of this Code or of the order or direction made pursuant thereto. Any action taken by the authority having jurisdiction on such premises shall be charged against the real estate upon which the structure is located and shall be a lien upon such real estate.
106.4 Violation penalties.
Any person who shall violate a provision of this Code, or fail to comply therewith, or with any of the requirements thereof, shall be prosecuted within the limits provided by sate or local laws. Each day that a violation continues after due notice has been served shall be deemed a separate offense.
106.5 Abatement of violation.
The imposition of the penalties herein prescribed shall not preclude the legal officer of the jurisdiction from instituting appropriate action to restrain, correct or abate a violation, or to prevent illegal occupancy of a building, structure or premises, or to stop an illegal act, conduct business or utilization of the building, structure or premises.
NOTICES AND ORDERS
107.1 Notice to person responsible.
Written notice must be given to the person responsible for the property (i.e. occupant) when the Code Official observes a violation of This Code. When a property is condemned, the person responsible for the property must be informed of the intent to placard and vacate the structure.
The person responsible must be notified when a building is placarded. This is important because both the person responsible and the owner can be charged with a violation of This Code if they fail to vacate the structure.
It is also important for the Code Official to keep copies of all written notices issued. If the person responsible for the property or occupants fail to abide by a verbal order, the Code Official needs something more substantial to pursue enforcement action. If further enforcement procedures are warranted, the Code Official will need a complete chronologically written documentation of all notices and orders that have been issued.
The notice required by Section 107.1 must:
? Be in writing. A verbal notice is unreliable.
? Clearly identify the property. The address of the property is sufficient when it is readily available. The legal description may be necessary when the address for the property is missing or if the land is vacant and lacks an address.
? State why the notice is being issued, and identify what part of This Code is being violated.
? Include a correction order, and state what repairs need to be made to bring the property back into compliance with the Code.
? Allow a reasonable time for compliance. This is subjective. A reasonable time must not only include adequate time to allow owners to make repairs, but must also address the risk to the occupants and the public. As an example, if a portion of a building is collapsing, the owner may believe that a reasonable time to correct the damage should be several weeks or even months; however, a collapsing wall creates an immediate danger to the public. The Code Official should require completion of all repairs within a few days or, in extreme cases, in a matter of hours.
? Provide the person responsible for the property with a notice of his or her right to seek modification or withdrawal of the order by appealing to a Board of Appeals according to Section 111.
? Inform the person responsible for the property of his or her authority to file a lien upon such real estate that any action has been taken pursuant to Section 106.3.
107.3 Method of Service.
Proper service of all notices is crucial Improper or inadequate service may make it impossible to pursue enforcement satisfactorily. Proper service requires one of the following methods:
? Personal delivery to the owner or the responsible person designated by the owner. This is the most effective form of service. Usually, personal service is provided by a personal service company (I.e., a third-party agency), the Code Official or the sheriff's office in the jurisdiction where the person to be served lives.
? Delivery by certified or registered mail addressed to the owner or the owner's designated agent at the last know address with a return receipt requested. This is a valid method of service, but sometimes it is not reliable. The owner may refuse to accept or ignore the service if he or she knows the jurisdiction plans to send notices. Also, it may take 10 to 14 days before the Code Official is notified by the post office that service could not be made. If the notice required the owner or owner's agent to correct something in a short time, the time for compliance may pass before the Code Official is aware the post office has not made the delivery.
? If the certified or registered letter is returned as undelivered, posting a copy in an easy-to-see place in or about the structure will suffice. Since the Code Official must wait until the post office returns undelivered certified letters before they can be posted, this form of service is very time consuming.
All of the services noted above may be expensive and time consuming. In some communities, the courts may consider service to be valid if the notice was sent to the last know address of the owner or owner's agent by regular postage and the notice was not returned by the post office. This method of service is obviously much cheaper and usually faster than waiting for the return of a certified letter. It must, however, be acceptable to the court system. The jurisdiction's attorney should be consulted to determine that the type of service is legally acceptable, reasonably cost effective and timely.
Penalties for noncompliance with orders and notices shall be as set forth in Section 106.4.
This section references Section 106.4, which establishes penalties for violating provisions of The Code.
107.5 Transfer of ownership.
When a property has a pending violation order, it is unlawful for an owner to sell, transfer, mortgage, lease or otherwise dispose of the property without either following the order or advising the buyer, mortgagee, etc., of the pending violation. The owner must prove that the buyer has received notice of pending violations by providing the Code Official with a signed, notarized receipt from the new transferee.
Determining who is the current owner of a building is a frustrating and difficult activity. To evade code enforcement action, owners will frequently transfer ownership of their property. This provision of This Code permit's the Code Official to cite the seller if he or she did not provide the Code Official with the required notification when the property was transferred; thus, even though the seller may avoid complying with the outstanding violation orders, he or she can still be charged with a violation for failing to provide proof that the transferee was aware of the pending orders.
UNSAFE STRUCTURES AND EQUIPMENT
This section provides a brief description of conditions where the Code Official is given the authority to condemn an existing structure or equipment. Where a structure or equipment is "unlawful," as described in the text of this section, that structure or equipment does not comply with the requirements of This Code. The deficiencies are such that an unsafe condition or a condition that is unfit for human occupancy exists.
108.2 Unfit Dwellings.
The designation of dwellings or dwelling units as unfit for human habitation and the procedure for the condemnation, placarding and demolition of such unfit dwellings or dwelling units shall be carried out in compliance with the following requirements:
Any dwelling or dwelling unit which shall be found by the Board of Trustees to have any of the following defects shall be condemned as unfit for human habitation and shall be so designated and placarded by the Village.
1. One which is so damaged, decayed, dilapidated, unsanitary, unsafe or vermin-infested that it creates a serious hazard to the health or safety of the occupants or of the public.
2. One which lacks illumination, ventilation or sanitation facilities adequate to protect the health or safety of the occupants or of the public or where such facilities or protection are not in working condition.
3. One which because of its general condition or location is unsanitary, unsafe, or otherwise hazardous to the health or safety of the occupants or of the public.
Any dwelling or dwelling unit condemned as unfit for human habitation and so designated and placarded by the village shall be vacated within a reasonable time, not to exceed 60 days, as ordered by the Village President.
( c.) Reuse.
No dwelling or dwelling unit which has been condemned and placarded as unfit for human habitation shall again be used for human habitation until written approval is secured from, and the placard is removed by, the Village President. The President shall remove such placard whenever the defect or defects upon which the condemnation and placarding action were based have been eliminated.
(d.) Removing Placard.
No person shall deface or remove the placard from any dwelling or dwelling unit which has been condemned as unfit for human habitation and placarded as such except as provided in subsection ( c).
Any person affected by any notice or order relating to the condemnation and placarding of a dwelling or dwelling unit as unfit for human habitation may request and shall be granted a hearing before the Board of Trustees on the matter within 10 days after the date of such order and placarding.
(f.) Court Orders.
Where a dwelling or dwelling unit is condemned and placarded as unfit for human habitation and is not vacated within the time specified in such vacation order the Village President shall seek a court order in a court of competent jurisdiction for the vacation of such dwelling or dwelling unit.
A dwelling which is subject to condemnation and placarding as unfit for human habitation may be ordered demolished by the Village President if it is determined by the Inspector that such defects upon which the condemnation order is based cannot be economically remedied. Demolition according to requirements listed below may be required of the owner within a reasonable period of time, said period of time to be not less than thirty (30) days after notice is served on said owner. Such demolition shall have the effect of fulfilling the requirements of removing defects if the dwelling structure is razed to ground level and any subsurface area is filled with solid materials to ground level.
(h.) Demolition by Village.
A dwelling which has been condemned as unfit for human habitation and ordered demolished and which has not been demolished by the owner within the time specified in such demolition order, may be demolished at the expense of the owner according to the following procedure:
1. In accordance with the provisions of the Illinois Revised Statutes, the corporate authorities shall apply to the Circuit Court of McLean County for an order authorizing the demolition of the dwelling or building as unfit for human habitation, after at least thirty (30) days written notice has been served on the owner and the owner has failed to comply with said notice. Service of all notices shall be made on the owner or owners if possible, but where after diligent search the identity or whereabouts of the owner or owners of such buildings shall not be ascertainable, notice mailed to the person or persons in whose name such real estate was last assessed shall constitute notice under this section.
2. After order of demolition is entered in the Circuit Court of said McLean County, the corporate authorities shall then proceed to demolish said building or dwelling as follows:
A. At least two bids shall be secured upon the cost of demolition of the said building or dwelling and a contract shall be awarded to the lowest bidder.
B. The payment of said contract shall be from the General Fund of the Village.
C. The cost of demolition of the building shall be recoverable from the owner or owners of such real estate, and shall be a lien thereon, which lien shall be subordinated to all prior lends and encumbrances, provided that within sixty (60) days after said cost and expense is incurred, the Village or person performing the service by authority of the Village, shall file notice of the lien in the office of the Recorder of Deeds of McLean County, said notice to consist of a sworn statement setting out:
(1) a description of the real estate sufficient for identification thereof;
(2) the amount of money, cost or expense payable for the demolition;
(3) date or dates when said cost or expense was incurred by the Village.
D. Upon the payment of the cost or expense by the owner or owners interested in said property after notice of lien has been filed, the lien shall be released by the Village or person in whose name the lien has been filed. The lien may be enforced by proceedings to foreclose as in the case of mortgages or mechanic's liens. Suit to foreclose the lien shall be made within three (3) years after date of filing of notice of the lien.
108.3 Unsafe structures.
Any building that endangers life, health, safety or property is unsafe. A building is considered dangerous if it meets one or more of the following conditions:
? It lacks adequate protection from fire;
? It contains unsafe equipment; or
? All or part of the building is likely to collapse.
Only structures with major defects or life-threatening conditions are considered unsafe. Minor defects, such as an inadequate number of electrical outlets or damaged plaster do not necessarily create an unsafe structure, even though they are violations of This Code.
108.4 Unsafe equipment.
Equipment may become unsafe when it is a hazard to life, health, property or safety.
The judgment of the Code Official is critical in determining when equipment should be deemed unsafe. If uncertain about appropriate enforcement action, he or she should seek additional expertise and advice and, if necessary, err on the side of safety.
108.5 Structure unfit for human occupancy.
The following conditions are reasons for declaring a building unfit for occupancy: unsafe; unlawful; lacks maintenance to a serious degree; disrepair; insanitary; vermin or rat infested; contains filth; lacks essential equipment and its location is hazardous to the occupants or the public.
The list of reasons for declaring a structure unfit requires subjective judgment. Because the consequences of declaring a structure unfit for occupancy are severe, the Code Official should carefully and thoroughly document all conditions that contributed to that determination.
108.6 Unlawful structure.
An unlawful structure is one that has serious deficiencies such that an unsafe condition or a condition that is unfit for human occupancy exists. An unlawful structure does not mean one where there are criminal activities.
108.7 Closing of vacant structures.
Code Officials are granted the authority to condemn, placard and vacate any building that they determine to be unsafe, unlawful or unfit for occupancy. Also, Code Officials may remove unsafe equipment from use.
No one is permitted to reoccupy or reuse any building or equipment until the Code Official has given his or her approval. Unsafe structures, unsafe equipment, buildings that are unfit for human occupancy and unlawful structures are further defined in subsequent sections.
The ability to condemn and vacate structures is a powerful enforcement tool. It protects occupants from danger and prevents owners from collecting income on their properties. Before condemning or vacating structures, the Code Official should establish a clearly defined list of violations that warrant such actions. Additionally, it is critical to document all of the violations found in each building to be condemned. When practical, photographs provide documents that have a powerful impact.
Open, vacant buildings are an attractive nuisance to children, a potential fire hazard, a harborage for rodents and insects and a potential home for vagrants. Vacant buildings also create a blighting influence within a community.
The Code Official is authorized to condemn as unfit those buildings that are vacant and open to trespass but not in danger of collapse. When the owner has been ordered to secure an open building but fails to do so, the Code Official must secure the structure by contracting with a public or private agent to close up the building.
The costs for closing buildings are to be charged to the property in the form of a lien. Generally, once a lien has been filed against a property, it must be satisfied before the property can be sold. This section authorizes collection by any other legal resource. It also allows collection by additional methods such as small claims judgments collection agency actions and personal liens. This enhances the chances of cost recovery.
The condemnation notice is required to be posed at the structure, and the owner or responsible person in charge is to be served notice in accordance with the procedure in Section 107.3, in the form prescribed in Section 107.2. If the notice also includes condemned equipment, the notice must also be placed on that equipment.
If the owner fails to comply with the notice, a placard indicating that the structure is condemned as unfit for human occupancy or use should be posted on the property or equipment. This placard should also show the penalty for illegal occupancy of the building or equipment, and for removing the placard.
Immediate enforcement action should be pursued when there is an illegal occupancy of a condemned building or equipment. The credibility of the Code Enforcement Program is dependent upon the public's belief that This Code will be adequately enforced.
Any owner or other person responsible for complying with a correction order who has failed to comply, must vacate the property immediately after the time for correction has passed. All occupants should be given reasonable time to find other accommodations.
108.10. Placard removal.
It is important that any unsafe structure be vacated to help prevent possible injury to or death of its occupants. The Code Official has the authority to require a condemned building to be vacated. Anyone who continues to occupy a placarded building or equipment and any owner who permits another to occupy a placarded building or equipment are subject to the penalties provided by This Code.
No dwelling or dwelling unit which has been condemned and placarded as unfit for human habitation shall again be used for human habitation until written approval is secured from, and the placard is removed by, the Village President. The President shall remove such placard whenever the defect or defects upon which the condemnation and placarding action were based have been eliminated.
108.12. Removing Placard.
No person shall deface or remove the placard from any dwelling or dwelling unit which has been condemned as unfit for human habitation and placarded as such except as provided in subsection 108.11.
109.1. Imminent danger.
If the Code Official has determined that failure or collapse of a building or structure is imminent, failure has occurred that results in a continued threat to the remaining structure or adjacent properties or if any other unsafe condition as described in this section exists in a structure, he or she is authorized to require the occupants to vacate the premises and to post such buildings or structures as unsafe and not occupiable. Unless authorized by the Code Official to make repairs, secure or demolish the structure, it is illegal for anyone to enter the building or structure. This will minimize the potential for injury.
109.2. Closing streets.
The Code Official is authorized to temporarily close sidewalks, streets and adjacent structures as needed to provide for the public safety from the unsafe building or structure when an imminent danger exists. Since the Code Official may not have the direct authority to close sidewalks, streets, and other public ways, the agency having such jurisdiction (e.g., the police or highway department) must be notified.
109.3. Emergency repairs.
The cost of emergency work may have to be initially paid for by the jurisdiction. The important principle here is that the Code Official must act immediately to protect the public when warranted, leaving the details of costs and owner notification for later.
109.4. Costs of emergency repairs.
The costs of emergency repairs is to be paid by the jurisdiction, with subsequent legal action against the owner to recover such costs. This does not preclude, however, reaching an alternative agreement with the owner.
Anyone ordered to take an emergency measure or to vacate a structure because of an emergency condition must do so immediately.
Thereafter, any affected party has the right to appeal the action to the appeals board to determine whether the order should be continued, modified or revoked.
It is imperative that appeals to an emergency order occur after the hazard has been abated, rather than before, to minimize the risk to the occupants, employees, clients and the public.
This section describes the conditions where the Code Official has the authority to order the owner to remove the structure. Conditions where the Code Official may give the owner the option of repairing the structure are also in this section. The Code Official should carefully document the condition of the structure prior to issuing a demolition order to provide an adequate basis for ordering the owner to remove the structure.
110.2. Notices and orders.
Before the Code Official can pursue action to demolish a building in accordance with Section 110.1 or 110.3, if is imperative that all owners and any other persons with a recorded encumbrance on the property be given proper notice of the demolition plans (see Section 107 for notice and order requirements).
110.3. Failure to comply.
When the owner fails to comply with a demolition order, the Code Official is authorized to take action to have the building razed and removed. The costs are to be charged as a lien against the real estate. To reduce the complaints regarding the validity of demolition costs, the Code Official will obtain competitive bids from several demolition contractors before authorizing any contractor to raze the structure.
The cost of demolition of the building shall be recoverable from the owner or owners of such real estate, and shall be a lien thereon, which lien shall be subordinate to all prior liens and encumbrances, provided that within 60 days after said cost and expense is incurred, the village or person performing the service by authority of the Village, shall file notice of the lien in the office of the Recorder of Deeds of McLean county, said notice to consist of a sworn statement setting out:
(1) a description of the real estate sufficient for identification thereof;
(2) the amount of money, cost and expense payable for the demolition;
(3) Date or dates when said cost or expense was incurred by the village.
110.4. Salvage materials.
The governing body may sell any valuables or salvageable materials for the highest price obtainable. The costs of demolition are then to be deducted from any proceeds from the sale of salvage. If a surplus of funds remains, it is to be emitted to the owner with an itemized expense and income account; however, if no surplus remains, this must also be reported.
MEANS OF APPEAL
111.1 APPLICATION FOR APPEAL/APPEALS OF VARIATIONS
Whenever, in a specific case, after an application for a permit has been made to the Enforcing Officer/Code Official, an appeal is made to the Zoning Board that there are practical difficulties or particular hardships in the way of carrying out the strict letter of any regulation relating to the use, construction, alteration, or location of building or structures or to the use of land, the Zoning Board may determine and vary their application in harmony with the general purpose and intent of such regulations, upon such conditions as may be considered appropriate and in the public interest, and in accordance with the rules herein set forth.
No variations shall be made, except after a public hearing of which there shall be at least fifteen (15) days notice to the time and place of such hearing published in a newspaper of general circulation in the Village, and notice to contain the particular location for which the variation is required as well as a brief statement of what the proposed variation consists.
The action of the Zoning Board in granting a variation shall contain or be accompanied by a finding of fact specifying the reason for making such variation.
( c) Fee.
To partially defray the expense of investigating and considering an appeal for variation where a public hearing is required a fee of ten dollars ($10.00) shall be charged the applicant and be collected by the Enforcing Officer, who shall account for same to the Village Treasurer.
111.2 OTHER APPEALS
Any person aggrieved or any officer, department, or board of the Village may appeal to the Zoning Board to review any order requirement, decision, or determination made by the Enforcing Officer in connection with the sections herein pertaining to zoning.
Such appeal shall be made within thirty (30) days from the date of the action appealed from by filing with the Enforcing Officer/Code Official and the Zoning Board a notice of appeal specifying the grounds thereof. The Enforcing Officer/Code Official shall forthwith transmit to the Zoning Board all papers constituting the record upon which the action appealed from was taken.
An appeal stays all proceedings in furtherance of the action appealed from, unless the Enforcing Officer/Code Official certified to the Zoning Board after the notice of the appeal has been filed with him, that by reasons of facts stated in the certificate, a stay would, in his opinion, cause imminent peril to life or property. In such case, proceedings shall not be stayed otherwise than by a restraining order of record on application, on notice to the Enforcing Officer/Code Official, and on due cause shown.
( c) Hearings.
The Zoning Board shall fix a reasonable time for the hearing of the appeal and give due notice thereof to the parties and decide the same within a reasonable time. Upon the hearing, any party may appear in person, by agent, or by attorney. The Zoning Board may reverse or affirm, wholly or partly, or may modify the order, requirements, decision, or determination as in its opinion ought to be made in the premises, and to that end shall have all the powers of the Enforcing Officer/Code Official.
After such an appeal has been duly acted upon by the Zoning Board, and said Board shall have the right to deny any further appeals on the same grievance.
111.3. Membership of board.
The concept of the Board is to provide an objective group of persons who review the matters brought to them and make a collective decision. The members of the board are not to be employees of the jurisdiction and are to have sufficient knowledge and experience to act on the concerns that are heard. A minimum of three board members is specified for a fair and impartial hearing process. Staggered terms are appropriate for uniform changeover such that a minimum number of board members is new each year. The number of members is to be determined by the chief appointing authority.
Zoning Board of appeals, hereafter referred to by the term "Zoning Board", is hereby authorized to be established. Such Zoning Board shall consist of five members appointed by the President of Board of Trustees and confirmed by the members of the Board of Trustees. Each appointment shall be for five years. Vacancies shall be filled by the President of the Board of Trustees for the unexpired terms only, subject to confirmation by the Board of Trustees at its next meeting. The Board of Trustees shall have the power to remove any member of the Zoning Board for cause, after a public hearing upon giving ten (10) days notice thereof.
It is customary to determine chairmanship annually so that a regular opportunity is available to evaluate and either reappoint the current chairman or appoint a new one.
The President of the Board of Trustees, upon his assuming office, shall name one of the members of the Zoning Board as Chairman. Regular meetings of the Zoning Board shall be held monthly at such time and place within the Village as the Zoning Board may determine. Special meetings may be held at the call of the Chairman, or as determined by the Zoning Board. Such Chairman, or in his absence the acting chairman, may administer oaths and compel the attendance of witnesses. All meetings of the Zoning Board shall be open to the public.
The Zoning Board shall keep the minutes of its proceedings showing the vote of each member upon every question, or if absent or failing to vote, indicating such facts, and shall also keep records of its examinations and other official actions. Every rule, regulation, amendment or repeal thereof and every order, requirement, decision, or determination of the Zoning Board shall immediately be filed in the office of the Board and shall be a public record. Four members of the Zoning Board shall constitute a quorum and the concurring vote of four members of the Board shall be necessary to reverse any order, requirement, decision, or determination of the Enforcing Officer/Code Official in any matter upon which it is required to pass under this ordinance or to effect any variation in this ordinance in accordance with Chapter Eighteen. In the performance of its duties, the Zoning Board may incur such expenditures as shall be authorized by the Board of Trustees.
111.5. Notice of meeting.
Regular meetings of the Zoning Board shall be held monthly at such time and place within the Village as the Zoning Board may determine. Special meetings may be held at the call of the Chairman, or as determined by the Zoning Board.
111.6. Open hearing.
Four members of the Zoning Board shall constitute a quorum and the concurring vote of four members of the Board shall be necessary to reverse any order, requirement, decision, or determination of the Enforcing Officer/Code Official in any matter upon which it is required to pass under this ordinance or to effect any variation in this ordinance in accordance with Chapter Eighteen. In the performance if its duties, the Zoning Board may incur such expenditures as shall be authorized by the Board of Trustees.
The Zoning Board shall adopt its own rules of procedure not in conflict with the statute or this ordinance.
111.8. Postponed hearing.
When all members of the board are not present, either the appellant or the appellant's representative may request a postponement of the hearing. This request may be made even though a quorum is present.
111.9. Board decision.
A concurring vote of a majority of the members present is needed to modify or reverse the decision of the Code Official.
111.10. Records and copies.
A formal decision is required to provide an official record. Copies are to be furnished to both the appellant and the Code Official. The Code Official is bound by the action of the Board of Appeals, unless it is the opinion of him or her that the Board of Appeals has acted improperly. In such cases, relief through the court having jurisdiction may be sought by corporate counsel.
To avoid any undue hindrance in the progress of construction, the Code Official is required to act without delay based on the Board's decision. This action may be to enforce the decision or to seek judicial relief if the Board's action can be demonstrated to be inappropriate.
111.12. Court review.
This section allows any person to request a review by the court of jurisdiction with regard to perceived errors of law. Application for such review must be made after the decision of the Board is filed with the chief administrative officer. This helps all those concerned to observe due process.
111.13. Stays of enforcement.
The purpose of this section is to specify that if an appeal is made, the jurisdiction is not to enforce its notice or order until such appeal has been heard by the board of appeals. This does not apply, of course, to imminent danger notices.