Wednesday, August 26, 2009
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Lincoln has new plan to address problem properties

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[August 26, 2009]  At the next voting meeting of the Lincoln City Council, a new plan for cleaning up hazardous and unsightly properties may be adopted. City attorney Bill Bates outlined the proposed plan during the Tuesday night committee of the whole.

Commonly referred to as "fast track to demolition," the plan would empower the city to take action to demolish such properties within a time frame of 45 to 60 days from the date that a legal notice is posted.

While the crux of the discussion was on the new program, Bates and Mayor Keith Snyder also offered up some very detailed information on properties that are currently an issue for the city, including those that are owned by Gordon McCann and located on North Jefferson and Webster Drive.

What we've been doing and how it has worked out

Bates began by saying, "We have what might be characterized as dangerous properties in the city, mainly due to a lack of maintenance and deterioration.

"Our alternative historically has been that we, as attorneys for the city, would file a lawsuit in the Logan County Circuit Court seeking to demolish a property, and that is a full-blown lawsuit. It alleges that it is unsafe, uninhabitable, beyond repair and needs to be demolished for the safety of the citizens. We have to do a title search and find all the titleholders and any lien holders."

He said that all those parties are then served with a notice of a hearing. Once the suit makes it to the courts, and assuming the city prevails, "we then have the grand prize of getting to demolish the property and pay the expenses of having it demolished."

Once the property is demolished, the city can file a lien against the property for the cost of the demolition. Then, 180 days after that, the property may be sold at public auction.

The problem with this action is that oftentimes the cost of demolition far exceeds what the city can recover in the sale.

Bates cited the case of a now-vacant lot at the corner of Pekin and North Kickapoo. He said that the three-story structure that was there was demolished by the city at a cost of $105,000, but the best offer ever made on the property was only $10,000.

Bates explained that demolition and the legal process involved to get to that point are so expensive that he and Last have for quite some time gone a different route of filing nuisance ordinance violations against the property owners.

Under the nuisance ordinance violation, Last sends out a letter to the owners, ordering them to clean up their property. If no action is taken, he sends a second letter in seven days, and if that produces no results, the case then goes to the attorney. Bates sends a letter ordering them to clean up the area or be subject to court appearances, fines or jail time.

Bates said that recently they have stopped sending the warning letters to repeat offenders; they just file the violation with the courts and take it to a hearing.

The end result is that the courts can fine the offender in an amount ranging from $25 to $100 per occurrence, according to the ordinance, and can sentence the offender to jail time.

Bates noted that there is one offender who has actually done two different stints in jail for failing to clean up his property: one for seven days and the second for 30 days.

He also explained that this is the ordinance he has been using to prosecute McCann for failure to clean up his properties, and that particular case has been long and drawn-out.

Bates said: "I have been in the legal system with Mr. McCann on the properties on North Jefferson and Webster Drive for, I believe, seven years. It has been appealed at least twice, if not three times. In that particular case the alternative process of declaring it a nuisance and getting him to clean it up has not worked very well. He has exercised all recourses available to him."

Bates also said that there have been several instances where the attorneys had to keep filing time and time again, and eventually the property owner did clean things up, but he added that this method is not as effective as demolition.

Snyder commented that they have also been trying other avenues for going after these property owners.

For example, he said: "We've got the railroad involved in situations where this is going on along railroad properties. We have engaged the Secretary of State's Police where there are unlicensed vehicles on the property, and they have opened investigative cases now on those situations. We've also explored grounds for getting the EPA involved, especially in the situation of the McCann properties."

The mayor also said that the nuisance ordinance violation letters have been somewhat successful in getting some properties taken care of.

He noted that the two buildings next to the Idle Hour on Broadway are gone.

He said that there is an individual who has a chronic situation of placing vehicles on a vacant lot, but recently Last sent the offender a letter and the owner did indeed clean up the area.

And the old house behind the Bright Idea business location is finally gone.

Bates said that in regard to that property, "we did issue an ordinance violation letter to Mr. Miller, and to his credit, he was working on tearing it down, one board at a time, by himself. But he just wasn't getting it done, so we ended up filing a demolition action against him with a court date coming up very soon; that is why the backhoe showed up."

Bates also noted that in the matter of the crumbling building next to Alexander Lumber, the attorneys did file for a demolition order against Mark Gates, and it did get torn down.

Snyder also added that as of Monday, he had one property that he was going to recommend to be the first action in the new fast track plan, but over the weekend, the owners began working on cleaning it up.

In addition to all this, the mayor and Last have been sending out thank-you notes to those who comply with the request to clean up their property. Snyder said that the notes themselves are having a positive effect.

Bates concluded: "So there is some result from the ordinance violation. Unfortunately when we look at the Mark Gates and Gordon McCann's, those are the real thorns in our side. And I can't tell you there has been great progress made, because anytime I have an ordinance violation in litigation for seven or eight years, that's not much progress."

Fast track to demolition

Bates handed out a three-page memo addressed to the mayor and council, outlining the fast track demolition process.

With fast track, a posted sign must be placed on the front of the building to be demolished. The sign says:

"Unless the building is demolished, repaired, or enclosed and unless any garbage, debris, and other hazardous, noxious, or unhealthy substances or materials are removed so that an immediate and continuing hazard to the community no longer exists, then the building may be demolished, repaired or enclosed, or unhealthy substances or materials may be removed by the municipality."

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The sign is to be no less than 2 feet by 2 feet in size and posted by the code enforcement officer on the front of the building. It is also to be dated as of the date of the posting.

No later than 30 days after the posting, the city must perform three additional measures.

The city must send by certified mail, return receipt requested, a "Notice to Remediate" to all owners of record of the property, beneficial owners and all lien holders of record, stating the intention of the city to take the above-stated action if the required action is not taken by the owners.

Also the city must run a public notice in a general circulation newspaper for three consecutive days.

The public notice will reflect the order posted on the building; plus, it will provide the tax ID number and address of the building, a statement that the property is open and vacant and constitutes an immediate and continuing hazard to the community, and that the city intends to take the above-mentioned action if the owners or lien holders of record fail to do so.

And, finally the city must record in the Logan County recorder's office the notice that was mailed to the property owners and lien holders.

Owners would have to file their objections in court, and the court would then decide if the action is necessary. If the ruling was in favor of the city, the court would issue an order authorizing the action.

At this point, if the owner would object, then the city would be basically back in the same situation as with the current method: with a lawsuit. The city would have to prove its case before the demolition could proceed.

If no owner or lien holders come forward with an objection, then at approximately 35 days after the initial posting, the city would have the right to move forward with demolition. This demolition would then have to take place within a 60-day period.

Then, 180 days after the demolition, the city could file a lien against the real estate for the cost of the action taken.

The advantages to this plan are, first of all, the speed with which a demolition of hazardous property can be executed, plus, providing the order is not contested by the landowner, there are no attorney's fees for preparation for court or court appearances on behalf of the city.

Bates said that up to the point of demolition, the only costs involved would be $100 to $200 for the title search, the cost of mailing registered letters, placing the public notice in the paper and a fee of approximately $50 for placing the order on record with the county.

Bates also said that in researching this option he has talked to other communities such as Rantoul, Jacksonville and Charleston that have used the fast track method with some success.

But it all comes back to money

Alderwoman Melody Anderson asked if anyone knew where or how the city could get the money to do these demolitions.

Bates said that he thought there was money in appropriations, but he wasn't sure if there was anything in the budget. Anderson confirmed that there is $100,000 in appropriations but zero in the budget.

She reminded everyone that the appropriations figures are "phantom" numbers recorded so that if a windfall would come to the city, the money could be used.

Anderson later said: "I don't want anyone to think that I am not in favor of cleaning these properties up -- I am certainly in favor -- but we do have to be fiscally responsible. I'm certainly hoping and encouraging that if anyone has any 'out of the box' thoughts on how we could come up with these dollars, they would say so."

Alderman David Wilmert asked if it had to be demolition -- Could the city clean up the properties? -- and Bates said that it needed to be demolition, and in the long run demolition would probably cost less than restoring the properties. Bates added that the properties are not going to belong to the city, so it should not invest in restoring them.

The group also talked about borrowing money for the demolition, but the problem with borrowing is that eventually it has to be paid back -- again, dollars that are not available in the budget.

Bates summarized the situation by saying: "This has certainly been the stumbling block in the eight or nine years that I've been here. The availability of funds is why we have had so many of these properties in ordinance violation, trying to get something done that way."

He added: "I know some people think we're not doing anything, and that is simply not the case. The nuisance provision does not have near as much teeth as the demolition, but unfortunately there is money involved in the demolition process."

On a more positive note, Snyder explained that with the demolition occurring within 45 to 60 days of the initial posting, it would be possible to have accurate bids on the work prior to ever starting the process, which would help the city in making their decisions.

Bates added that this could have a positive effect just by saying the city is going to go this route. "If the word gets out that the city is going try this, and that the city is going to demolish buildings, I think it will have an effect," he said.

But not for McCann

Bates concluded the discussion by saying that he didn't want to use the fast track on McCann at this time. "I don't want to get your hopes up on the McCann properties," he said. "As I told the mayor yesterday at a meeting we had, we're in litigation with him, long-standing, and I don't want to throw all of that out.

"I don't believe we should initiate this on those properties while that litigation is pending.

"I will tell you that the appellate court has now disallowed his appeal and that the time frame for which he would have the right to appeal that again with the Illinois Supreme Court has lapsed.

"Assuming the courts don't give him any more leeway than they have already given him, we are scheduled to have Mr. McCann back in court -- on a petition seeking to have him held in contempt for not complying with the court order to clean it up -- this Thursday afternoon.

"I want to continue to try and force his hand in that forum."


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