Full Text of HB5897 97th General Assembly
HB5897 97TH GENERAL ASSEMBLY |
| | 97TH GENERAL ASSEMBLY
State of Illinois
2011 and 2012 HB5897 Introduced 2/16/2012, by Rep. Thomas Morrison SYNOPSIS AS INTRODUCED: |
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Amends the Eminent Domain Act. Provides that in addition to all other limitations, a condemning authority other than the State may not take or damage property that is agricultural land by the exercise of the power of eminent domain for the establishment of a greenway. Defines terms. Effective immediately.
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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,
| 3 | | represented in the General Assembly:
| 4 | | Section 5. The Eminent Domain Act is amended by changing | 5 | | Section 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 | 8 | | use; blight. | 9 | | (a) In addition to all other limitations and requirements, | 10 | | a condemning authority may not take or damage property by the | 11 | | exercise of the power of eminent domain unless it is for a | 12 | | public use, as set forth in this Section. | 13 | | (a-5) Subsections (b), (c), (d), (e), and (f) of this | 14 | | Section do not apply to the acquisition of property under the | 15 | | O'Hare Modernization Act. A condemning authority may exercise | 16 | | the power of eminent domain for the acquisition or damaging of | 17 | | property under the O'Hare Modernization Act as provided for by | 18 | | law in effect prior to the effective date of this Act. | 19 | | (a-10) Subsections (b), (c), (d), (e), and (f) of this | 20 | | Section do not apply to the acquisition or damaging of property | 21 | | in furtherance of the goals and objectives of an existing tax | 22 | | increment allocation redevelopment plan. A condemning | 23 | | authority may exercise the power of eminent domain for the |
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| 1 | | acquisition of property in furtherance of an existing tax | 2 | | increment allocation redevelopment plan as provided for by law | 3 | | in effect prior to the effective date of this Act. | 4 | | As used in this subsection, "existing tax increment | 5 | | allocation redevelopment plan" means a redevelopment plan that | 6 | | was adopted under the Tax Increment Allocation Redevelopment | 7 | | Act (Article 11, Division 74.4 of the Illinois Municipal Code) | 8 | | prior to April 15, 2006 and for which property assembly costs | 9 | | were, before that date, included as a budget line item in the | 10 | | plan or described in the narrative portion of the plan as part | 11 | | of the redevelopment project, but does not include (i) any | 12 | | additional area added to the redevelopment project area on or | 13 | | after April 15, 2006, (ii) any subsequent extension of the | 14 | | completion date of a redevelopment plan beyond the estimated | 15 | | completion date established in that plan prior to April 15, | 16 | | 2006, (iii) any acquisition of property in a conservation area | 17 | | for which the condemnation complaint is filed more than 12 | 18 | | years after the effective date of this Act, or (iv) any | 19 | | acquisition of property in an industrial park conservation | 20 | | area. | 21 | | As used in this subsection, "conservation area" and | 22 | | "industrial park conservation area" have the same meanings as | 23 | | under Section 11-74.4-3 of the Illinois Municipal Code. | 24 | | (a-15) In addition to all other limitations and | 25 | | requirements, a condemning authority other than the State may | 26 | | not take or damage property that is agricultural land by the |
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| 1 | | exercise of the power of eminent domain for the establishment | 2 | | of a greenway. | 3 | | As used in this subsection (a-15): | 4 | | "Agricultural land" means any property used solely for | 5 | | the growing and harvesting of crops; for the feeding, | 6 | | breeding and management of livestock; for dairying or for | 7 | | any other agricultural or horticultural use or combination | 8 | | thereof; including, but not limited to, hay, grain, fruit, | 9 | | truck or vegetable crops, floriculture, mushroom growing, | 10 | | plant or tree nurseries, orchards, forestry, sod farming | 11 | | and greenhouses; the keeping, raising and feeding of | 12 | | livestock or poultry, including dairying, poultry, swine, | 13 | | sheep, beef cattle, ponies or horses, fur farming, bees, | 14 | | fish and wildlife farming; and any property left fallow | 15 | | near a river, stream, or creek for soil conservation or | 16 | | other purpose related to any of the activities mentioned in | 17 | | this definition. | 18 | | "Greenway" means a corridor of undeveloped land along a | 19 | | river, stream, or creek that is reserved for recreational | 20 | | use or for environmental protection. | 21 | | "Recreational use" includes, but is not limited to | 22 | | hunting, fishing, boating, camping, picnicking, hiking, | 23 | | biking, walking, horseback riding, pleasure driving, | 24 | | nature study, water skiing, festivals, public gatherings | 25 | | and visiting historical, archaeological, scenic or | 26 | | scientific sites, or for any purpose, including but not |
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| 1 | | limited to educational, vocational and religious | 2 | | activities and assemblies. | 3 | | (b) If the exercise of eminent domain authority is to | 4 | | acquire property for public ownership and control, then the | 5 | | condemning authority must prove that (i) the acquisition of the | 6 | | property is necessary for a public purpose and (ii) the | 7 | | acquired property will be owned and controlled by the | 8 | | condemning authority or another governmental entity. | 9 | | (c) Except when the acquisition is governed by subsection | 10 | | (b) or is primarily for one of the purposes specified in | 11 | | subsection (d), (e), or (f) and the condemning authority elects | 12 | | to proceed under one of those subsections, if the exercise of | 13 | | eminent domain authority is to acquire property for private | 14 | | ownership or control, or both, then the condemning authority | 15 | | must prove by clear and convincing evidence that the | 16 | | acquisition of the property for private ownership or control is | 17 | | (i) primarily for the benefit, use, or enjoyment of the public | 18 | | and (ii) necessary for a public purpose. | 19 | | An acquisition of property primarily for the purpose of the | 20 | | elimination of blight is rebuttably presumed to be for a public | 21 | | purpose and primarily for the benefit, use, or enjoyment of the | 22 | | public under this subsection. | 23 | | Any challenge to the existence of blighting factors alleged | 24 | | in a complaint to condemn under this subsection shall be raised | 25 | | within 6 months of the filing date of the complaint to condemn, | 26 | | and if not raised within that time the right to challenge the |
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| 1 | | existence of those blighting factors shall be deemed waived. | 2 | | Evidence that the Illinois Commerce Commission has granted | 3 | | a certificate or otherwise made a finding of public convenience | 4 | | and necessity for an acquisition of property (or any right or | 5 | | interest in property) for private ownership or control | 6 | | (including, without limitation, an acquisition for which the | 7 | | use of eminent domain is authorized under the Public Utilities | 8 | | Act, the Telephone Company Act, or the Electric Supplier Act) | 9 | | to be used for utility purposes creates a rebuttable | 10 | | presumption that such acquisition of that property (or right or | 11 | | interest in property) is (i) primarily for the benefit, use, or | 12 | | enjoyment of the public and (ii) necessary for a public | 13 | | purpose. | 14 | | In the case of an acquisition of property (or any right or | 15 | | interest in property) for private ownership or control to be | 16 | | used for utility, pipeline, or railroad purposes for which no | 17 | | certificate or finding of public convenience and necessity by | 18 | | the Illinois Commerce Commission is required, evidence that the | 19 | | acquisition is one for which the use of eminent domain is | 20 | | authorized under one of the following laws creates a rebuttable | 21 | | presumption that the acquisition of that property (or right or | 22 | | interest in property) is (i) primarily for the benefit, use, or | 23 | | enjoyment of the public and (ii) necessary for a public | 24 | | purpose: | 25 | | (1) the Public Utilities Act, | 26 | | (2) the Telephone Company Act, |
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| 1 | | (3) the Electric Supplier Act, | 2 | | (4) the Railroad Terminal Authority Act, | 3 | | (5) the Grand Avenue Railroad Relocation Authority | 4 | | Act, | 5 | | (6) the West Cook Railroad Relocation and Development | 6 | | Authority Act, | 7 | | (7) Section 4-505 of the Illinois Highway Code, | 8 | | (8) Section 17 or 18 of the Railroad Incorporation Act, | 9 | | (9) Section 18c-7501 of the Illinois Vehicle Code. | 10 | | (d) If the exercise of eminent domain authority is to | 11 | | acquire property for private ownership or control and if the | 12 | | primary basis for the acquisition is the elimination of blight | 13 | | and the condemning authority elects to proceed under this | 14 | | subsection, then the condemning authority must: (i) prove by a | 15 | | preponderance of the evidence that acquisition of the property | 16 | | for private ownership or control is necessary for a public | 17 | | purpose; (ii) prove by a preponderance of the evidence that the | 18 | | property to be acquired is located in an area that is currently | 19 | | designated as a blighted area or conservation area under an | 20 | | applicable statute; (iii) if the existence of blight or | 21 | | blighting factors is challenged in an appropriate motion filed | 22 | | within 6 months after the date of filing of the complaint to | 23 | | condemn, prove by a preponderance of the evidence that the | 24 | | required blighting factors existed in the area so designated | 25 | | (but not necessarily in the particular property to be acquired) | 26 | | at the time of the designation under item (ii) or at any time |
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| 1 | | thereafter; and (iv) prove by a preponderance of the evidence | 2 | | at least one of the following: | 3 | | (A) that it has entered into an express written | 4 | | agreement in which a private person or entity agrees to | 5 | | undertake a development project within the blighted area | 6 | | that specifically details the reasons for which the | 7 | | property or rights in that property are necessary for the | 8 | | development project; | 9 | | (B) that the exercise of eminent domain power and the | 10 | | proposed use of the property by the condemning authority | 11 | | are consistent with a regional plan that has been adopted | 12 | | within the past 5 years in accordance with Section 5-14001 | 13 | | of the Counties Code or Section 11-12-6 of the Illinois | 14 | | Municipal Code or with a local land resource management | 15 | | plan adopted under Section 4 of the Local Land Resource | 16 | | Management Planning Act; or | 17 | | (C) that (1) the acquired property will be used in the | 18 | | development of a project that is consistent with the land | 19 | | uses set forth in a comprehensive redevelopment plan | 20 | | prepared in accordance with the applicable statute | 21 | | authorizing the condemning authority to exercise the power | 22 | | of eminent domain and is consistent with the goals and | 23 | | purposes of that comprehensive redevelopment plan, and (2) | 24 | | an enforceable written agreement, deed restriction, or | 25 | | similar encumbrance has been or will be executed and | 26 | | recorded against the acquired property to assure that the |
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| 1 | | project and the use of the property remain consistent with | 2 | | those land uses, goals, and purposes for a period of at | 3 | | least 40 years, which execution and recording shall be | 4 | | included as a requirement in any final order entered in the | 5 | | condemnation proceeding. | 6 | | The existence of an ordinance, resolution, or other | 7 | | official act designating an area as blighted is not prima facie | 8 | | evidence of the existence of blight. A finding by the court in | 9 | | a condemnation proceeding that a property or area has not been | 10 | | proven to be blighted does not apply to any other case or | 11 | | undermine the designation of a blighted area or conservation | 12 | | area or the determination of the existence of blight for any | 13 | | other purpose or under any other statute, including without | 14 | | limitation under the Tax Increment Allocation Redevelopment | 15 | | Act (Article 11, Division 74.4 of the Illinois Municipal Code). | 16 | | Any challenge to the existence of blighting factors alleged | 17 | | in a complaint to condemn under this subsection shall be raised | 18 | | within 6 months of the filing date of the complaint to condemn, | 19 | | and if not raised within that time the right to challenge the | 20 | | existence of those blighting factors shall be deemed waived. | 21 | | (e) If the exercise of eminent domain authority is to | 22 | | acquire property for private ownership or control and if the | 23 | | primary purpose of the acquisition is one of the purposes | 24 | | specified in item (iii) of this subsection and the condemning | 25 | | authority elects to proceed under this subsection, then the | 26 | | condemning authority must prove by a preponderance of the |
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| 1 | | evidence that: (i) the acquisition of the property is necessary | 2 | | for a public purpose; (ii) an enforceable written agreement, | 3 | | deed restriction, or similar encumbrance has been or will be | 4 | | executed and recorded against the acquired property to assure | 5 | | that the project and the use of the property remain consistent | 6 | | with the applicable purpose specified in item (iii) of this | 7 | | subsection for a period of at least 40 years, which execution | 8 | | and recording shall be included as a requirement in any final | 9 | | order entered in the condemnation proceeding; and (iii) the | 10 | | acquired property will be one of the following:
| 11 | | (1) included in the project site for a residential | 12 | | project, or a
mixed-use project including residential | 13 | | units, where not less than 20% of the residential units in | 14 | | the project are made available, for at least 15 years, by | 15 | | deed
restriction, long-term lease, regulatory agreement, | 16 | | extended use agreement, or a
comparable recorded | 17 | | encumbrance, to low-income households and very low-income | 18 | | households, as defined in Section 3 of
the Illinois | 19 | | Affordable Housing Act; | 20 | | (2) used primarily for public airport, road, parking, | 21 | | or mass transportation purposes and sold or leased to a | 22 | | private party in a sale-leaseback, lease-leaseback,
or | 23 | | similar structured financing; | 24 | | (3) owned or used by a public utility or electric | 25 | | cooperative for utility purposes; | 26 | | (4) owned or used by a railroad for
passenger or |
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| 1 | | freight transportation purposes; | 2 | | (5)
sold or leased to a private party that operates a | 3 | | water supply, waste water,
recycling, waste disposal, | 4 | | waste-to-energy, or similar facility; | 5 | | (6) sold or leased
to a not-for-profit corporation | 6 | | whose purposes include the preservation of open
space, the | 7 | | operation of park space, and similar public purposes; | 8 | | (7)
used as a library, museum, or related facility, or | 9 | | as infrastructure related to
such a facility; | 10 | | (8) used by a private party for the
operation of a | 11 | | charter school open to the general public; or
| 12 | | (9) a historic resource, as defined in Section 3 of the | 13 | | Illinois State Agency Historic Resources Preservation Act, | 14 | | a landmark designated as such under a local ordinance, or a | 15 | | contributing structure within a local landmark district | 16 | | listed on the National Register of Historic Places, that is | 17 | | being acquired for purposes of preservation or | 18 | | rehabilitation. | 19 | | (f) If the exercise of eminent domain authority is to | 20 | | acquire property for public ownership and private control and | 21 | | if the primary purpose of the acquisition is one of the | 22 | | purposes specified in item (iii) of this subsection and the | 23 | | condemning authority elects to proceed under this subsection, | 24 | | then the condemning authority must prove by a preponderance of | 25 | | the evidence that: (i) the acquisition of the property is | 26 | | necessary for a public purpose; (ii) the acquired property will |
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| 1 | | be owned by the condemning authority or another governmental | 2 | | entity; and (iii) the acquired property will be controlled by a | 3 | | private party that operates a
business or facility related to | 4 | | the condemning authority's operation of a university, medical | 5 | | district, hospital, exposition or convention center, mass | 6 | | transportation facility, or airport,
including, but not | 7 | | limited to, a medical clinic, research and development center, | 8 | | food or commercial concession facility, social service | 9 | | facility, maintenance or storage facility, cargo facility,
| 10 | | rental car facility, bus facility, taxi facility, flight | 11 | | kitchen,
fixed based operation, parking facility, refueling | 12 | | facility, water supply facility, and railroad tracks and
| 13 | | stations. | 14 | | (g) This Article is a limitation on the exercise of the | 15 | | power of eminent domain, but is not an independent grant of | 16 | | authority to exercise the power of eminent domain.
| 17 | | (Source: P.A. 94-1055, eff. 1-1-07.)
| 18 | | Section 99. Effective date. This Act takes effect upon | 19 | | becoming law.
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