HomeMy WebLinkAboutORDINANCES-2013-106-O-13Effective Date: December 1, 2.013 10/9/2013
• 9/20/2013
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AN ORDINANCE
Amending 'Title 7 of the City Code,
Relating to Sidewalks in the City of Evanston
WHEREAS, Article VI I, § 6 of the Illinois Constitution sets forth the powers
of home rule units of government, and the City of Evanston is a home rule unit of
government. Namely, a home rule unit may:
... exercise any power and perform any function pertaining to its
government and affairs including, but not limited to, the power to regulate
for the protection of the public health, safety, morals, and welfare; to
license; to tax; and to incur debt.
and
• WHEREAS, the powers of a home rule unit such as the City are to be
construed liberally pursuant to Article VII, § 6(m) of the Illinois Constitution, and the City's
powers as a home rule authority are: "...to be given the broadest powers possible"
Scadron v. City of Des Plaines, 153 111.2d 164 (1992). A city's power to regulate and
license for the protection of public health and safety is drawn directly from the
Constitution, and any such power may only be expressly limited by the General
Assembly. Article VII, § 6(i) of the Illinois Constitution; 131 111.2d at 230; and
WHEREAS, the expansive grant of the home rule mandate in Article VII of
the Illinois Constitution is: "broad and imprecise in order to allow for great flexibility..."
City of Evanston v. Create, Inc., 85 111.2d 101 (1981)(Evanston's broadly construed home
• rule powers confirmed that Evanston's residential landlord tenant ordinance was
constitutional). Indeed, the Supreme Court opined:
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The city of Evanston is a densely populated and highly urbanized •
community... In accordance with the goals attempted to be achieved by the
creation of home rule, the local governing body can create an ordinance
specifically suited for the unique needs of its residents and is keenly and
uniquely aware of the needs of the community it serves.
Id. at 113; and
WHEREAS, statutes are presumed constitutional and the burden of
rebutting that presumption is on the party challenging the validity of the statute to clearly
demonstrate a constitutional violation. Napleton v. Village of Hinsdale, 229 111.2d 296,
306 (2008); and
WHEREAS, a court has a duty to uphold the constitutionality of a
statute/ordinance when reasonably possible, and if a statute's/ordinance's construction is
doubtful, the court will resolve the doubt in favor the statute's/ordinance's validity. Id.
citing to People ex rel. Sherman v. Cryns, 203 111.2d 264, 291 (2003); and •
WHEREAS, the Illinois Supreme Court held that "[i]f a subject pertains to
local government and affairs, and the [Illinois] legislature has not expressly preempted
home rule, municipalities may exercise their power". Palm v. 2800 Lake Shore Drive
Condominium Assn, 988 N.E.2d 75, 82-83 (2013), citing City of Chicago v. StubHub,
Inc., 979 N.E.2d 844 (2011); and
WHEREAS, if the General Assembly has enacted legislation regarding
local government affairs without expressly preempting home rule, "home rule units `may
exercise and perform concurrently with the State any power or function of a home rule
unit to the extent that the General Assembly by law does not specifically limit the
concurrent exercise or specifically declare the State's exercise to be exclusive"'. Palm,
supra, at 83, citing Illinois Constitution 1970, Art. VII, § 6(i)); and •
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• WHEREAS, the City has the authority to adopt ordinances and to
promulgate rules and regulations that pertain to its government and affairs and that
protect the public health, safety, and welfare of its citizens; and
WHEREAS, the Local Government and Governmental Employees Tort
Immunity Act, 745 ILCS 1013-105 provides in pertinent part:
§ 3-105. (a) Neither a local public entity nor a public employee is liable for
an injury caused by the effect of weather conditions as such on the use of
streets, highways, alleys, sidewalks or other public ways, or places, or the
ways adjoining any of the foregoing, or the signals, signs, markings, traffic
or pedestrian control devices, equipment or structures on or near any of
the foregoing or the ways adjoining any of the foregoing. For the purpose
of this section, the effect of weather conditions as such includes but is not
limited to the effect of wind, rain, flood, hail, ice or snow but does not
include physical damage to or deterioration of streets, highways, alleys,
sidewalks, or other public ways or place or the ways adjoining any of the
foregoing, or the signals, signs, markings, traffic or pedestrian control
• devices, equipment or structures on or near any of the foregoing or the
ways adjoining any of the foregoing resulting from weather conditions.
745 ILCS 10/3-105; and
WHEREAS, the Illinois Supreme Court specifically held that:
..we recognize the dangers posed by natural accumulations of snow and
ice. The absence of a duty to remove them "does not rest upon the notion
that the conditions presented by such accumulations are safe. To the
contrary, the hazards presented have always been acknowledged, but the
imposition of an obligation to remedy those conditions would be so
unreasonable and impractical as to negate the imposition of a legal duty to
do so.
Krywin v. Chicago Transit Authorityy, 238 111.2d 215, 938 N.E.2d 440 III., 2010- and
WHEREAS, Illinois courts recognize that governmental units are not
obligated to remove snow and ice accumulating from natural conditions where
accumulation covers a large geographical area and constitutes a hazard generally
known to the public; and
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WHEREAS, the Illinois Supreme Court established long ago that it is •
unreasonable to expect a city to expend the resources and labor necessary to keep
streets and other public ways continuously safe from ice and snow during the winter
Graham v. City of Chicago, 346 111.638 (1931); and
WHEREAS, cities are not liable for injuries caused by natural
accumulations of ice and snow on public property. Moore v. Chicago Park District, 951
N.E.2d 1194, (1st Dist. 2011); and
WHEREAS, the City of Evanston is 7.8 square miles, contains 274 miles of
sidewalk, that for each mile of sidewalk there are approximately 1,000 sidewalk panels,
that there are 41.5 miles of paved alleys and 28.25 miles of unpaved alleys in the City of
Evanston, and
WHEREAS, the legislative intent and judgment of the City of Evanston, as •
expressed in this Ordinance amending Title 7 of the City Code, is to state that private
property owners are responsible for removing natural accumulations of snow and ice on
public sidewalks adjacent to their property, such.expression which is controlling; and
WHEREAS, due to the hundreds of miles of streets and sidewalks in the
City of Evanston, it is fiscally impracticable for the City to shovel, clear, salt and clear
natural accumulations of snow and ice on all sidewalks; and
WHEREAS, Illinois courts recognize that a City may only be liable for
conditions relative to its property only if it is first established that a City had actual or
constructive notice of an unreasonably unsafe condition. Zameer v. City of Chicago,
2013 WL 3794172 (1st Dist. App. 2013); Brzinski v. Northeast Illinois Commuter R.R.
Corp., 892 N.E.2d 1142 (2008); and
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0 WHEREAS, due to the hundreds of miles of streets and sidewalks in the
City of Evanston, it is fiscally impracticable for the City to have a property
inspection/replacement/repair program for all sidewalks, curb cuts and other areas of
City property; and
WHEREAS, the City Council considered and adopted this Ordinance
pursuant to its home rule, regulatory, and police powers, and, following its deliberations,
adopted this Ordinance that is rationally related to legitimate government purposes; and
WHEREAS, it is well -settled law in Illinois that the legislative judgment of
the City Council must be considered presumptively valid, see Glenview State Bank v.
Village of Deerfield, 213 III.App.3d 747; and
WHEREAS, the language of the Local Government and Governmental
• Employees Tort Immunity Act, sections 10/2-103, 10/2-105, are incorporated via
reference as if fully set forth herein; and
WHEREAS, under the separation -of -powers doctrine, courts must respect
units of local government, such that the City Council's mandate in adopting this
ordinance is entitled to high deference. See Board of Education of Dolton School District
149 v. Miller, 349 III.App.3d 806 (15t Dist. 2004), Moore v. Grafton Township, 2011 WL
3524417 (2"d Dist. 2011), and
WHEREAS, all persons desiring to be heard on these matters were heard,
legislative findings made, a legislative Record created, and this matter was considered
by the City Council of Evanston.
NOW BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
• EVANSTON, COOK COUNTY, ILLINOIS, THAT:
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SECTION 1: That the foregoing recitals are found as fact and incorporated •
herein by reference.
SECTION 2: Title 7, Chapter 2, Section 9 of the Evanston City Code of
2012, as amended, is hereby amended and revised to read as follows:
7-2-9-3. SIDEWALKS TO BE CLEAR OF SNOW, ICE, DIRT AND WEEDS.
(A) Snow and /ce Whenever there is a snowfall with an accumulation of four inches (4")
or more within any twenty four (24) span of time, every owner or occupant of a dwelling
or other building, or proprietor or lessee of any enclosed lot or premises, shall clear a
path at least thirty six inches wide (36") on the sidewalks in front of or adjoining such
house, building -or premises of snow and ice. The path shall be created and cleared
within twenty four (24) hours of any four inch or greater (4") snowfall, and the path shall
be maintained and clear of snow and ice. If the snow and ice is hardened and .
congealed such that removal is unduly burdensome or may damage the sidewalk, the
sidewalk shall have sand, salt or similar deicing material spread upon its surface. The
path shall be cleared and created to give access to abutting property and public ways.
All landlords shall clear snow and ice_ from private sidewalks, walkways, stairs,
driveways, parking spaces, parking lots, and similar areas on private property to permit
access for tenants and invitees to such private property.
If an owner, lessee, proprietor or occupant neglects or refuses to clear such snow and/or
ice, the City may clear such snow and/or ice or authorize some person to do the same
on behalf of the City. The City, in its sole discretion, may issue notices of violation to an
owner, lessee, proprietor, or occupant for violations of this section If the City's agent
clears snow and/or ice, a notice of lien of the cost and expense thereof incurred by the •
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• City shall be recorded by filing a lien in the office of the Cook County Recorder of Deeds.
The notice of lien shall consist of a sworn statement setting out:
1. A description of the real estate sufficient for identification thereof,
2. The amount of money representing the cost and expense incurred or
payable for the service, and
3. The date when the cost and expense was incurred by the City.
Such notice shall be filed within sixty (60) days after the cost and expense is
incurred.
Upon payment of the cost and expense after the notice of lien was filed as
provided herein, the lien shall be released by the City or person in whose name the lien
was filed and the release shall be filed of record. Nothing in this section imposes upon
• the City a duty of care or create a cause of action against the City for personal injury or
for damage to personal property due to natural accumulations of snow and ice.
(B) Dirt and Weeds. Every owner, lessee, proprietor or occupant under this section shall
keep sidewalks clear and free of all obstructions at all times, including but not limited to,
dirt and weeds.
(C) Off -Street Parking Areas. Every owner or occupant of any dwelling house or other
residential building, or proprietor or lessee of any business, commercial or public
premises within the City, shall clear the off-street parking spaces and access thereto for
spaces required to be provided under zoning or other City codes for said premises of ice
and snow within twenty four (24) hours of any four inch (4") or greater snowfall.
SECTION 3: Title 7, Chapter 3, Section 3 of the Evanston City Code of
• 2012, as amended, is hereby further amended and revised to read as follows-
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7-3-3. ORDINARY CARE BY CITY
The City will exercise ordinary care to maintain its property under this section in a
reasonably safe condition for the use in the exercise of ordinary care of people whom the
City intends and permits to use the property in a manner in which and at such times it
was reasonably foreseeable that it would be used. The City shall not be liable for any
injury unless it is proven that it has actual or constructive notice of the existence of such
a condition that is not reasonably safe in reasonably adequate time prior to an injury to
have taken measures to remedy or protect against such condition.
SECTION 4: That this Ordinance 106-0-13 shall be in full force and effect
from and after its passage and approval in the manner provided by law.
SECTION 5: That if any provision of this ordinance or application thereof
•
to any person or circumstance is ruled unconstitutional or otherwise invalid, such •
invalidity shall not affect other provisions or applications of this ordinance that can be
given effect without the invalid application or provision, and each invalid provision or
invalid application of this ordinance is severable. The terms and provisions of this
Chapter shall be liberally construed so as to effectuate the purposes set forth in this
Ordinance. Each and every recital and legislative finding regarding this Chapter is to be
construed and interpreted severally.
SECTION 6: That the foregoing findings and recitals contained herein, as
well as the meeting minutes and legislative Record regarding this issue are found as fact
and incorporated herein by reference. The findings, recitals, and legislative Record are
declared to be prima facie evidence of the law of the City of Evanston, and shall be
•
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• received in evidence as provided by the Illinois Compiled Statutes and the courts of the
State of Illinois.
SECTION 7: That in accordance with the Tort Immunity Act, 745 ILCS
10/3-102(b) and 105(a), the City shall not be deemed to have constructive notice of
weather conditions regarding sidewalks, because the City does not maintain an
inspection/shoveling/clearing system to assess and address weather conditions
regarding sidewalks, and weather conditions are by definition transitory conditions that
may affect a sidewalk such that an inspection/shoveling/clearing system could not be
operated by the City.
SECTION 8: That in accordance with the Tort Immunity Act, 745 ILCS 10/
et. seq., the City shall not be deemed to have constructive notice of conditions regarding
• sidewalks that are not open and obvious, because the City does not maintain an
inspection system, nor employ a dedicated sidewalk inspector, to regularly assess,
inspect, and register conditions regarding sidewalks.
SECTION 9: That this Ordinance 106-0-13 shall be in full force and effect
as of December 1, 2013.
Introduced: &DtW y , 2013 Approved:
Adopted: 2013 �� D`C-) , 2013
Eliz . th �BTTisdahl, Mayor
Attest: Approved as to form:
• Rq(iney Greene ty Clerk W. Grant Farrar, Corporation Counsel