SB2746 94TH GENERAL ASSEMBLY

LRB094 15021 MKM 50141 b

94TH GENERAL ASSEMBLY
State of Illinois
2005 and 2006
SB2746

Introduced 1/20/2006, by Sen. Edward Petka

SYNOPSIS AS INTRODUCED:

735 ILCS 5/7-102.4 new
735 ILCS 5/7-102.6 new
735 ILCS 5/7-102.7 new
735 ILCS 5/7-102.8 new
735 ILCS 5/7-102.9 new
735 ILCS 5/7-102.10 new
735 ILCS 5/7-102.11 new
735 ILCS 5/7-121	from Ch. 110, par. 7-121
735 ILCS 5/7-900 new
735 ILCS 5/7-110 rep.
30 ILCS 805/8.30 new

Amends the Eminent Domain Article of the Code of Civil Procedure. Requires all units of local government other than a municipality or a county to obtain the approval by ordinance of the municipality or county within which the subject property is located before entering into negotiations or commencing proceedings to acquire property by eminent domain. Requires units of local government and school districts to follow certain procedures to acquire property under the power of eminent domain. Requires the condemning authority to reimburse certain appraisal costs, attorney's fees, and relocation expenses. Requires the Office of the Attorney General to publish a summary of eminent domain rights and remedies for inclusion with certain notices. Authorizes the court to dismiss a complaint for condemnation if it finds that the condemning authority or any other governmental entity has exercised or failed to exercise a regulatory power for the purpose of holding down or diminishing just compensation. Places restrictions on the sale to a private party of property acquired by eminent domain. Prohibits a plaintiff from dismissing or abandoning condemnation proceedings after the complaint has been filed but provides that certain public utilities are not prohibited from dismissing or abandoning the proceedings until after the property is taken. Provides that the condemning authority is liable for costs, expenses, and reasonable attorney's fees incurred by a landowner in obtaining deposit of an amount not deposited in the time provided in the order of taking. Authorizes the use of evidence of comparable sales initiated and bona fide offers to purchase offered prior to filing of the complaint for use in determining the fair cash market value of the property. Makes other changes. Preempts home rule powers. Amends the State Mandates Act to require implementation without reimbursement by the State. Effective immediately.

FISCAL NOTE ACT MAY APPLY	HOME RULE NOTE ACT MAY APPLY	HOUSING AFFORDABILITY IMPACT NOTE ACT MAY APPLY
	STATE MANDATES ACT MAY REQUIRE REIMBURSEMENT MAY APPLY

A BILL FOR

AN ACT concerning eminent domain.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Code of Civil Procedure is amended by adding Sections 7-102.4, 7-102.6, 7-102.7, 7-102.8, 7-102.9, 7-102.10, 7-102.11, and 7-900 and by changing Section 7-121 as follows:

(735 ILCS 5/7-102.4 new)

Sec. 7-102.4. Limitations on the exercise of the power of eminent domain.

(a) In this Section:

"Condemning authority" means the State, any unit of local government, or any school district.

"Unit of local government" means that term as it is defined in Section 1 of Article 7 of the Illinois Constitution.

(b) In addition to any other statutory requirements, any unit of local government, other than a municipality or a county, seeking to acquire property shall not enter into negotiations or commence any condemnation proceedings, including quick-take proceedings, to acquire property under the power of eminent domain without first having obtained the approval by ordinance of:

(1) the corporate authorities of the municipality in which the property is located, if the property is located entirely within a municipality;

(2) the county board of the county in which the property is located, if the property is located entirely within an unincorporated area of the county; or

(3) the governing bodies of all municipalities and counties in which the property is located, if the property is not located entirely within a municipality or entirely within an unincorporated area of a county.

The ordinance must include a requirement that the unit of local government must initiate negotiations to purchase the property within the time period specified in the ordinance, which shall not exceed one year after the date on which the ordinance is adopted.

(c) No unit of local government or school district may condemn property under the power of eminent domain, including under quick-take proceedings, unless it has complied with all of the following procedures:

(1) As soon as practical after making any public announcement regarding its intention to acquire property, the unit of local government or school district must notify the landowners of all subject properties of its intentions to acquire the property and its actions and anticipated actions in furtherance of those intentions.

(2) The unit of local government or school district must notify each owner of an interest in the property, by certified mail, at least 5 days before commencing negotiations, of its intention to enter into negotiations to acquire the property. The notice must advise the owner that the owner may wish to seek legal or other counsel prior to negotiations.

(3) The unit of local government or school district must cause notice of its intent to acquire the property by condemnation to be published in a newspaper of general circulation in the territory in which the property is located. Publication must be made at least 10 days prior to the public hearing required under item (4) and must give notice of the time and place of the public hearing.

(4) After providing the notices required under items (1) through (3), the unit of local government or school district must hold at least one public hearing, at the place at which it normally holds its business meetings, on the question of its acquisition of the property by condemnation.

(5) After the unit of local government or school district has held a least one public hearing under item (4), in order to proceed with the acquisition of the property, the chief elected official of the municipality or county must submit to all owners of an interest in the property to be acquired and to their respective legal counsel a sworn, notarized affidavit that contains, or has attached as an incorporated exhibit, all of the following items:

(A) The legal description of the property.

(B) The street address of the property.

(C) The current name, address, and telephone number of each owner of an interest in the property.

(D) A statement of the date and location of each public hearing held under item (4).

(E) A statement, with supporting documentation and illustrations, of the public use for which the unit of local government or school district seeks to acquire the property.

(F) A map of the area in which the property to be acquired is located, showing the location of the property.

(G) A certified appraisal of the property by a real estate appraiser who is certified or licensed under the Real Estate Appraiser Licensing Act of 2002.

(H) A copy of the ordinance adopted by the municipality or county under subsection (b).

(I) A copy of each notice sent to any person with an interest in the property under items (1) and (2).

(J) The summary of rights and remedies published by the Illinois Attorney General in accordance with Section 7-102.7.

(d) Each affidavit submitted by a unit of local government or school district pursuant to this Section and all documents and other items submitted with the affidavit must be made available to the public, upon request, for inspection and copying at the business office of the unit of local government or school district during regular business hours.

(e) The changes made by this amendatory Act of the 94th General Assembly to Article 7 of the Code of Civil Procedure apply only to cases commenced and complaints filed on or after the effective date of this amendatory Act of the 94th General Assembly.

(735 ILCS 5/7-102.6 new)

Sec. 7-102.6. Reimbursement of appraisal costs, legal fees, and relocation expenses.

(a) If a condemning authority acquires property by purchase under threat of eminent domain or exercises the power of eminent domain to acquire property by verdict or judgment, including under quick-take proceedings, each person with an interest in the property shall be reimbursed, as a part of just compensation, for related appraisal costs and reasonable attorney's fees.

(b) If a condemning authority acquires property by purchase under threat of eminent domain or exercises the power of eminent domain to acquire property by verdict or judgment, including under quick-take proceedings, each person with an interest in the property may be reimbursed, as a part of just compensation, for related relocation expenses, in the same manner as provided in the federal Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970.

(735 ILCS 5/7-102.7 new)

Sec. 7-102.7. Published summary of rights and remedies. The Office of the Attorney General shall publish a summary of the rights and remedies available for property owners subject to acquisition by a unit of local government or school district under the power of eminent domain. The summary shall include, but not be limited to, the processes and requirements outlined in Section 7-102.4. Each unit of local government or school district seeking to acquire property under the power of eminent of domain shall include this information with the notification required to be sent to each owner of an interest in the property under item (1) of subsection (d) of Section 7-102.4 of this Article.

(735 ILCS 5/7-102.8 new)

Sec. 7-102.8. Regulations adversely affecting just compensation. The court may dismiss a complaint for condemnation, including under quick-take proceedings, if it finds that the condemning authority or any other governmental entity has exercised or failed to exercise a regulatory power for the purpose of holding down or diminishing just compensation for the property that the condemning authority seeks to obtain.

(735 ILCS 5/7-102.9 new)

Sec. 7-102.9. Sale of property to private party.

(a) If a condemning authority that has acquired property either (i) as a result of a verdict or judgment under this Article or (ii) voluntarily from a property owner after the owner was notified of the intention to exercise the power of eminent domain, then the a condemning authority shall not resell that property to a private party unless each property owner that held title to an interest in the subject property is first allowed a reasonable opportunity to repurchase his or her interest in the subject property on the same terms on which the condemning authority acquired it.

(b) This Section does not apply to: (i) property owners whose property was acquired as part of a comprehensive long-range plan for the redevelopment of a blighted area and who received notice of that purpose prior to the transfer of the property; and (ii) property owners whose property was taken by a public utility pursuant to a grant of authority to exercise the power of eminent domain authorized in Article VIII of the Public Utilities Act.

(735 ILCS 5/7-102.10 new)

Sec. 7-102.10. Dismissal; abandonment.

(a) This Section applies to all condemnation proceedings, including quick take proceedings.

(b) Except as otherwise provided in subsection (c), at no time after a complaint for condemnation has been filed shall the plaintiff have the right to dismiss the complaint or to abandon the proceedings as to all or any part of the property taken, except upon the consent of all parties to the proceeding whose interests would be affected by the dismissal or abandonment.

(c) Notwithstanding the provisions of subsection (b), if the plaintiff is a public utility authorized by a grant of authority issued pursuant to Article VII of the Public Utilities Act, the plaintiff shall not have the right to dismiss the complaint or to abandon the proceeding, as to all or any part of the property taken, until after taking possession of the property pursuant to an order of taking, except upon the consent of all parties to the proceeding whose interests would be affected by the dismissal or abandonment.

(735 ILCS 5/7-102.11 new)

Sec. 7-102.11. Late payment by condemning authority. If a verdict, judgment, or agreed judgment is entered by the court regarding a complaint for condemnation filed under this Article and if the condemning authority fails to deposit the final compensation within the time provided in the order, the condemning authority shall be liable for the costs, expenses, and reasonable attorney's fees incurred by the landowner in obtaining deposit of the amount specified in the verdict, judgment, or agreed judgment.

(735 ILCS 5/7-121) (from Ch. 110, par. 7-121)

Sec. 7-121. Value.

(a) Except as to property designated as possessing a special use and except as provided in subsections (b) and (c), the fair cash market value of property in a proceeding in eminent domain shall be the amount of money which a purchaser, willing but not obligated to buy the property, would pay to an owner willing but not obliged to sell in a voluntary sale, which amount of money shall be determined and ascertained as of the date of filing the complaint to condemn. In the condemnation of property for a public improvement there shall be excluded from such amount of money any appreciation in value proximately caused by such improvement, and any depreciation in value proximately caused by such improvement. However, such appreciation or depreciation shall not be excluded where property is condemned for a separate project conceived independently of and subsequent to the original project.

(b) Sales of comparable property that were initiated prior to filing the complaint and were completed after the complaint for condemnation of the subject property has been filed under this Article are admissible as evidence in the condemnation proceeding on the same terms as sales of comparable property completed before the complaint for condemnation is filed.

(c) In addition to sales of comparable property, bona fide offers to purchase the subject property or comparable adjacent properties, including options to purchase, that were made or offered within a reasonable time prior to filing the complaint for condemnation of the subject property are admissible as evidence in a condemnation proceeding.

(Source: P.A. 82-280.)

(735 ILCS 5/7-900 new)

Sec. 7-900. Home rule. The authorization of the use of eminent domain proceedings to take or damage property is an exclusive power and function of the State. Neither the State, a unit of local government, including a home rule unit, nor a school district may exercise the power of eminent domain otherwise than as provided in this Article. This Article is a denial and limitation of home rule powers and functions under subsection (h) of Section 6 of Article VII of the Illinois Constitution.

(735 ILCS 5/7-110 rep.)

Section 10. The Code of Civil Procedure is amended by repealing Section 7-110.

Section 90. The State Mandates Act is amended by adding Section 8.30 as follows:

(30 ILCS 805/8.30 new)

Sec. 8.30. Exempt mandate. Notwithstanding Sections 6 and 8 of this Act, no reimbursement by the State is required for the implementation of any mandate created by this amendatory Act of the 94th General Assembly.

Section 900. Applicability. The changes made by this amendatory Act of the 94th General Assembly to Article 7 of the Code of Civil Procedure apply only to cases commenced and complaints filed on or after the effective date of this amendatory Act of the 94th General Assembly.

Section 999. Effective date. This Act takes effect upon becoming law.