99TH GENERAL ASSEMBLY
State of Illinois
2015 and 2016
HB2558

 

Introduced , by Rep. Robyn Gabel

 

SYNOPSIS AS INTRODUCED:
 
735 ILCS 30/5-5-5

    Amends the Eminent Domain Act. Provides that a public university of this State may not acquire property by condemnation or eminent domain if the university's current land holdings are sufficient to accommodate the development of the university's planned improvements. Provides that if an attempt is made to take private property due to the alleged inadequacy of the university's current land holdings, the question whether the current land holdings are truly not adequate shall be a judicial question and determined without regard to any administrative or legislative assertion that the university lacks the land necessary to erect its planned improvements. Provides that a public university of this State may not acquire property by condemnation or eminent domain to advance the economic interest of private parties to be given ownership or use of the property taken. States that the new provisions apply to all condemnations by public universities in this State pending or filed after the effective date of the amendatory Act.


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A BILL FOR

 

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1    AN ACT concerning civil law.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Eminent Domain Act is amended by changing
5Section 5-5-5 as follows:
 
6    (735 ILCS 30/5-5-5)
7    Sec. 5-5-5. Exercise of the power of eminent domain; public
8use; blight.
9    (a) In addition to all other limitations and requirements,
10a condemning authority may not take or damage property by the
11exercise of the power of eminent domain unless it is for a
12public use, as set forth in this Section.
13    (a-5) Subsections (b), (c), (d), (e), and (f) of this
14Section do not apply to the acquisition of property under the
15O'Hare Modernization Act. A condemning authority may exercise
16the power of eminent domain for the acquisition or damaging of
17property under the O'Hare Modernization Act as provided for by
18law in effect prior to the effective date of this Act.
19    (a-10) Subsections (b), (c), (d), (e), and (f) of this
20Section do not apply to the acquisition or damaging of property
21in furtherance of the goals and objectives of an existing tax
22increment allocation redevelopment plan. A condemning
23authority may exercise the power of eminent domain for the

 

 

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1acquisition of property in furtherance of an existing tax
2increment allocation redevelopment plan as provided for by law
3in effect prior to the effective date of this Act.
4    As used in this subsection, "existing tax increment
5allocation redevelopment plan" means a redevelopment plan that
6was adopted under the Tax Increment Allocation Redevelopment
7Act (Article 11, Division 74.4 of the Illinois Municipal Code)
8prior to April 15, 2006 and for which property assembly costs
9were, before that date, included as a budget line item in the
10plan or described in the narrative portion of the plan as part
11of the redevelopment project, but does not include (i) any
12additional area added to the redevelopment project area on or
13after April 15, 2006, (ii) any subsequent extension of the
14completion date of a redevelopment plan beyond the estimated
15completion date established in that plan prior to April 15,
162006, (iii) any acquisition of property in a conservation area
17for which the condemnation complaint is filed more than 12
18years after the effective date of this Act, or (iv) any
19acquisition of property in an industrial park conservation
20area.
21    As used in this subsection, "conservation area" and
22"industrial park conservation area" have the same meanings as
23under Section 11-74.4-3 of the Illinois Municipal Code.
24    (b) If the exercise of eminent domain authority is to
25acquire property for public ownership and control, then the
26condemning authority must prove that (i) the acquisition of the

 

 

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1property is necessary for a public purpose and (ii) the
2acquired property will be owned and controlled by the
3condemning authority or another governmental entity.
4    (c) Except when the acquisition is governed by subsection
5(b) or is primarily for one of the purposes specified in
6subsection (d), (e), or (f) and the condemning authority elects
7to proceed under one of those subsections, if the exercise of
8eminent domain authority is to acquire property for private
9ownership or control, or both, then the condemning authority
10must prove by clear and convincing evidence that the
11acquisition of the property for private ownership or control is
12(i) primarily for the benefit, use, or enjoyment of the public
13and (ii) necessary for a public purpose.
14    An acquisition of property primarily for the purpose of the
15elimination of blight is rebuttably presumed to be for a public
16purpose and primarily for the benefit, use, or enjoyment of the
17public under this subsection.
18    Any challenge to the existence of blighting factors alleged
19in a complaint to condemn under this subsection shall be raised
20within 6 months of the filing date of the complaint to condemn,
21and if not raised within that time the right to challenge the
22existence of those blighting factors shall be deemed waived.
23    Evidence that the Illinois Commerce Commission has granted
24a certificate or otherwise made a finding of public convenience
25and necessity for an acquisition of property (or any right or
26interest in property) for private ownership or control

 

 

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1(including, without limitation, an acquisition for which the
2use of eminent domain is authorized under the Public Utilities
3Act, the Telephone Company Act, or the Electric Supplier Act)
4to be used for utility purposes creates a rebuttable
5presumption that such acquisition of that property (or right or
6interest in property) is (i) primarily for the benefit, use, or
7enjoyment of the public and (ii) necessary for a public
8purpose.
9    In the case of an acquisition of property (or any right or
10interest in property) for private ownership or control to be
11used for utility, pipeline, or railroad purposes for which no
12certificate or finding of public convenience and necessity by
13the Illinois Commerce Commission is required, evidence that the
14acquisition is one for which the use of eminent domain is
15authorized under one of the following laws creates a rebuttable
16presumption that the acquisition of that property (or right or
17interest in property) is (i) primarily for the benefit, use, or
18enjoyment of the public and (ii) necessary for a public
19purpose:
20        (1) the Public Utilities Act,
21        (2) the Telephone Company Act,
22        (3) the Electric Supplier Act,
23        (4) the Railroad Terminal Authority Act,
24        (5) the Grand Avenue Railroad Relocation Authority
25    Act,
26        (6) the West Cook Railroad Relocation and Development

 

 

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1    Authority Act,
2        (7) Section 4-505 of the Illinois Highway Code,
3        (8) Section 17 or 18 of the Railroad Incorporation Act,
4        (9) Section 18c-7501 of the Illinois Vehicle Code.
5    (d) If the exercise of eminent domain authority is to
6acquire property for private ownership or control and if the
7primary basis for the acquisition is the elimination of blight
8and the condemning authority elects to proceed under this
9subsection, then the condemning authority must: (i) prove by a
10preponderance of the evidence that acquisition of the property
11for private ownership or control is necessary for a public
12purpose; (ii) prove by a preponderance of the evidence that the
13property to be acquired is located in an area that is currently
14designated as a blighted area or conservation area under an
15applicable statute; (iii) if the existence of blight or
16blighting factors is challenged in an appropriate motion filed
17within 6 months after the date of filing of the complaint to
18condemn, prove by a preponderance of the evidence that the
19required blighting factors existed in the area so designated
20(but not necessarily in the particular property to be acquired)
21at the time of the designation under item (ii) or at any time
22thereafter; and (iv) prove by a preponderance of the evidence
23at least one of the following:
24        (A) that it has entered into an express written
25    agreement in which a private person or entity agrees to
26    undertake a development project within the blighted area

 

 

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1    that specifically details the reasons for which the
2    property or rights in that property are necessary for the
3    development project;
4        (B) that the exercise of eminent domain power and the
5    proposed use of the property by the condemning authority
6    are consistent with a regional plan that has been adopted
7    within the past 5 years in accordance with Section 5-14001
8    of the Counties Code or Section 11-12-6 of the Illinois
9    Municipal Code or with a local land resource management
10    plan adopted under Section 4 of the Local Land Resource
11    Management Planning Act; or
12        (C) that (1) the acquired property will be used in the
13    development of a project that is consistent with the land
14    uses set forth in a comprehensive redevelopment plan
15    prepared in accordance with the applicable statute
16    authorizing the condemning authority to exercise the power
17    of eminent domain and is consistent with the goals and
18    purposes of that comprehensive redevelopment plan, and (2)
19    an enforceable written agreement, deed restriction, or
20    similar encumbrance has been or will be executed and
21    recorded against the acquired property to assure that the
22    project and the use of the property remain consistent with
23    those land uses, goals, and purposes for a period of at
24    least 40 years, which execution and recording shall be
25    included as a requirement in any final order entered in the
26    condemnation proceeding.

 

 

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1    The existence of an ordinance, resolution, or other
2official act designating an area as blighted is not prima facie
3evidence of the existence of blight. A finding by the court in
4a condemnation proceeding that a property or area has not been
5proven to be blighted does not apply to any other case or
6undermine the designation of a blighted area or conservation
7area or the determination of the existence of blight for any
8other purpose or under any other statute, including without
9limitation under the Tax Increment Allocation Redevelopment
10Act (Article 11, Division 74.4 of the Illinois Municipal Code).
11    Any challenge to the existence of blighting factors alleged
12in a complaint to condemn under this subsection shall be raised
13within 6 months of the filing date of the complaint to condemn,
14and if not raised within that time the right to challenge the
15existence of those blighting factors shall be deemed waived.
16    (e) If the exercise of eminent domain authority is to
17acquire property for private ownership or control and if the
18primary purpose of the acquisition is one of the purposes
19specified in item (iii) of this subsection and the condemning
20authority elects to proceed under this subsection, then the
21condemning authority must prove by a preponderance of the
22evidence that: (i) the acquisition of the property is necessary
23for a public purpose; (ii) an enforceable written agreement,
24deed restriction, or similar encumbrance has been or will be
25executed and recorded against the acquired property to assure
26that the project and the use of the property remain consistent

 

 

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1with the applicable purpose specified in item (iii) of this
2subsection for a period of at least 40 years, which execution
3and recording shall be included as a requirement in any final
4order entered in the condemnation proceeding; and (iii) the
5acquired property will be one of the following:
6        (1) included in the project site for a residential
7    project, or a mixed-use project including residential
8    units, where not less than 20% of the residential units in
9    the project are made available, for at least 15 years, by
10    deed restriction, long-term lease, regulatory agreement,
11    extended use agreement, or a comparable recorded
12    encumbrance, to low-income households and very low-income
13    households, as defined in Section 3 of the Illinois
14    Affordable Housing Act;
15        (2) used primarily for public airport, road, parking,
16    or mass transportation purposes and sold or leased to a
17    private party in a sale-leaseback, lease-leaseback, or
18    similar structured financing;
19        (3) owned or used by a public utility or electric
20    cooperative for utility purposes;
21        (4) owned or used by a railroad for passenger or
22    freight transportation purposes;
23        (5) sold or leased to a private party that operates a
24    water supply, waste water, recycling, waste disposal,
25    waste-to-energy, or similar facility;
26        (6) sold or leased to a not-for-profit corporation

 

 

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1    whose purposes include the preservation of open space, the
2    operation of park space, and similar public purposes;
3        (7) used as a library, museum, or related facility, or
4    as infrastructure related to such a facility;
5        (8) used by a private party for the operation of a
6    charter school open to the general public; or
7        (9) a historic resource, as defined in Section 3 of the
8    Illinois State Agency Historic Resources Preservation Act,
9    a landmark designated as such under a local ordinance, or a
10    contributing structure within a local landmark district
11    listed on the National Register of Historic Places, that is
12    being acquired for purposes of preservation or
13    rehabilitation.
14    (f) If the exercise of eminent domain authority is to
15acquire property for public ownership and private control and
16if the primary purpose of the acquisition is one of the
17purposes specified in item (iii) of this subsection and the
18condemning authority elects to proceed under this subsection,
19then the condemning authority must prove by a preponderance of
20the evidence that: (i) the acquisition of the property is
21necessary for a public purpose; (ii) the acquired property will
22be owned by the condemning authority or another governmental
23entity; and (iii) the acquired property will be controlled by a
24private party that operates a business or facility related to
25the condemning authority's operation of a university, medical
26district, hospital, exposition or convention center, mass

 

 

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1transportation facility, or airport, including, but not
2limited to, a medical clinic, research and development center,
3food or commercial concession facility, social service
4facility, maintenance or storage facility, cargo facility,
5rental car facility, bus facility, taxi facility, flight
6kitchen, fixed based operation, parking facility, refueling
7facility, water supply facility, and railroad tracks and
8stations.
9    (f-5) Notwithstanding any other provision of law, a public
10university of this State may not acquire property by
11condemnation or eminent domain:
12        (1) If the university's current land holdings are
13    sufficient to accommodate the development of the
14    university's planned improvements. If an attempt is made to
15    take private property due to the alleged inadequacy of the
16    university's current land holdings, the question whether
17    the current land holdings are truly not adequate shall be a
18    judicial question and determined without regard to any
19    administrative or legislative assertion that the
20    university lacks the land necessary to erect its planned
21    improvements.
22        (2) To advance the economic interest of private parties
23    to be given ownership or use of the property taken.
24    This subsection applies to all condemnations by public
25universities in this State pending or filed after the effective
26date of this amendatory Act of the 99th General Assembly.

 

 

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1    (g) This Article is a limitation on the exercise of the
2power of eminent domain, but is not an independent grant of
3authority to exercise the power of eminent domain.
4(Source: P.A. 94-1055, eff. 1-1-07.)