§ 12.34. Abatement—Court.

(a)

The City, as an alternative to Section 12.33, may commence an action to abate a chronic nuisance property.

(b)

Upon being satisfied by affidavits or other sworn evidence that an alleged chronic nuisance property exists, the court may, without notice or bond, enter a temporary restraining order or a preliminary injunction to enjoin any defendant from maintaining such nuisance and may enter an order restraining any defendant from removing or interfering with all property used in connection with the chronic nuisance property.

(c)

Commencement of Action, Burden of Proof.

(1)

In an action seeking closure of a chronic nuisance property, the City shall have the initial burden of showing by a preponderance of the evidence that the property is a chronic nuisance property.

(2)

It is a defense to an action seeking the closure of a chronic nuisance property that the owner of the property, at the time in question, could not, in the exercise of reasonable care and diligence, determine that the property had become a chronic nuisance property, or could not, in spite of the exercise of reasonable care and diligence, control the conduct leading to the findings that the property is a chronic nuisance property.

(3)

It shall also be a defense to an action seeking closure of a chronic nuisance property for a person who owns a property, prior to notification provided for in Section 12.32 of this Article that the property has become a chronic nuisance property, to, in good faith, notify a law enforcement agency of suspected illegal activity and to commence an eviction action against any tenant or occupant of the property.

(4)

In establishing the amount of any civil penalty requested, the court may consider any of the following factors if they are found appropriate, and shall cite those found applicable:

(A)

The actions or lack of action taken by the person who owns or is otherwise in control of the property to mitigate or correct the problem at the property;

(B)

Whether the problem at the property was repeated or continuous;

(C)

The magnitude or gravity of the problem;

(D)

The cooperation of the person who owns or is otherwise in control of the property with the City's enforcement efforts;

(E)

The cost incurred by the City investigating and correcting or attempting to correct the condition.

(d)

Remedy.

(1)

In the event a court determines a property to be a chronic nuisance property, the court may order that the property be closed and secured against all use and occupancy for a period of not less than thirty (30) days, but not more than one hundred eighty (180) days or the court may employ any other remedy deemed by it appropriate to abate the nuisance, including, but not limited to, injunctive relief.

(2)

In addition to the remedy provided in subsection (c)(1) of this Section, the court may impose upon the owner of the property a civil penalty in the amount of not less than five hundred dollars ($500.00) nor more than one thousand dollars ($1,000.00) per day, payable to the City of Elmhurst, for each day the person who owns or is otherwise in control of the property had actual knowledge of the condition that caused the property to be a public nuisance property and permitted the condition to remain.

(3)

In determining the remedy or remedies to employ, the court may consider evidence of other conduct which has occurred on the property, including, but not limited to:

(A)

The disturbance of neighbors;

(B)

The occurrence of other nuisances on or from the property;

(C)

The property's general reputation and/or the reputation of persons in or frequenting the property;

(D)

The effect on the property values of other property in the vicinity.

(4)

The court may authorize the City 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 the closure shall be made and assessed as a lien against the property and debt to the City. As used herein, "costs" means those costs actually incurred by the City for the physical securing of the property.

(5)

The official or employee of the City's Building Department effecting the closure shall prepare a statement of costs, and the City shall thereafter submit said statement to the court for its review. If the statement is approved by the Court, in whole or in part, as the case may be, a lien in said amount may be recorded against said property.

(6)

Any person who is assessed the cost of closure and/or civil penalty by the court shall be personally liable for the payment thereof to the City.

(Ord. 19-2007 § 1 (part))