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90_SB1111
New Act
Creates the Property Rights Preservation Act. Requires
the Attorney General to develop and provide to State agencies
guidelines that identify and evaluate government actions that
may result in a taking. Requires State agencies to prepare a
written assessment of takings implications before it takes
any action. Provides that an award to a property owner for a
taking shall come from the State agency's existing budget.
Provides that a property owner has a cause of action against
a State agency that violates this Act. Provides that the
assessed value of the property for tax purposes shall reflect
the effect of a taking. Effective January 1, 1997.
SRS90S0046PMch
SRS90S0046PMch
1 AN ACT concerning property rights preservation.
2 Be it enacted by the People of the State of Illinois,
3 represented in the General Assembly:
4 Section 1. Short title. This Act may be cited as the
5 Property Rights Preservation Act.
6 Section 5. Purpose.
7 It is the policy of this State that no private property
8 may be taken for public use by governmental action without
9 payment of just compensation, in accordance with the meaning
10 ascribed to these concepts by the United States Supreme Court
11 and the Supreme Court of this State.
12 The purpose of this Act is to require State agencies,
13 guided and overseen by the Attorney General, to evaluate
14 proposed government actions that may result in a
15 constitutional taking of private property in order to avoid
16 unnecessary burdens on the State Treasury and unwarranted
17 interference with private property rights. It is not the
18 purpose of this Act to affect the scope of private property
19 protections afforded by the Constitution of this State or of
20 the United States.
21 Section 10. Definitions. As used in this Act:
22 "State agency" means the State of Illinois and any
23 officer, agency, board, commission, department or similar
24 body of the executive branch of the State, and any of the
25 political subdivisions of the State or agencies thereof.
26 "Government action" means (i) existing and proposed rules
27 that if adopted or enforced may limit the use of private
28 property; (ii) existing or proposed licensing or permitting
29 conditions, requirements, or limitations on the use of
30 private property; and (iii) required dedications or exactions
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1 of private property. The term "government action" does not
2 include (i) the formal exercise of the power of eminent
3 domain; (ii) the forfeiture or seizure of private property by
4 law enforcement agencies as evidence of a crime or for
5 violations of law; (iii) orders issued by a State agency or
6 court of law that result from a violation of law and that are
7 authorized by statute; or (iv) the discontinuance of
8 government programs.
9 "Constitutional taking" or "taking" means the taking of
10 private property by government action such that compensation
11 to the owner of that property is required by either (i) the
12 Fifth or Fourteenth Amendment of the United States
13 Constitution or (ii) Article I, Section 15 of the
14 Constitution of the State of Illinois.
15 Section 20. Guidelines for determining takings.
16 (a) The Attorney General shall develop and provide to
17 State agencies guidelines to assist in the identification and
18 evaluation of government actions that may result in a
19 constitutional taking. The Attorney General shall base the
20 guidelines on current law articulated by the United States
21 Supreme Court and the Supreme Court of this State, and shall
22 update the guidelines at least on an annual basis to take
23 account of changes in the law.
24 (b) Subject to the provisions of subsection (a) of this
25 Section, when developing these guidelines the Attorney
26 General shall observe the following principles:
27 (1) government actions that result in a physical
28 invasion or occupancy of private property, that decrease
29 the value of property, or that limit the use of property
30 may constitute a taking;
31 (2) government action may amount to a taking even
32 though it does not constitute a complete deprivation of
33 use or value of the separate and distinct interests in
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1 the private property or the action is only temporary in
2 nature;
3 (3) the mere assertion of a public purpose is
4 insufficient to avoid a taking. Government actions to
5 protect the public health and safety or to otherwise
6 further the public interest should be taken only in
7 response to real and substantial public needs and shall
8 be designed to significantly address those needs;
9 (4) although normal government processes do not
10 ordinarily constitute takings, undue delays in decision
11 making that interfere with private property use may be a
12 taking. In addition, a delay in processing may increase
13 significantly the size of compensation due if a
14 constitutional taking is later found to have occurred;
15 and
16 (5) the constitutional protections against taking
17 private property are self-executing and require
18 compensation regardless of whether the underlying
19 authority for the action contemplated a taking or
20 authorized the payment of compensation.
21 Section 15. Designation of responsible official. The
22 Attorney General shall designate an official within the
23 Office of the Attorney General who shall be responsible for
24 ensuring compliance with this Act.
25 Section 20. Takings assessment by State agency. Before
26 a State agency takes any government action, the agency shall
27 prepare a written assessment of the constitutional takings
28 implications of such action in compliance with the guidelines
29 developed pursuant to Section 4 of this Act. The agency
30 shall deliver copies of this assessment to the Governor, the
31 Bureau of the Budget, and Attorney General. The agency's
32 assessment shall:
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1 (a) assess the likelihood that the action may result in
2 a constitutional taking;
3 (b) clearly and specifically identify the purpose of the
4 action;
5 (c) explain why the action is necessary to substantially
6 advance that purpose, and why no alternative action is
7 available that would achieve the agency's goals while
8 reducing the impact on the private property owner;
9 (d) estimate the potential cost to the government if a
10 court determines that the action constitutes a constitutional
11 taking;
12 (e) assess whether the action constitutes a
13 constitutional taking;
14 (f) identify the source of payment within the agency's
15 budget for any compensation that may be ordered; and
16 (g) certify that the benefits of the government action
17 exceed the estimated compensation costs.
18 Section 25. Emergency action. If there is an immediate
19 threat to public health and safety that constitutes an
20 emergency and requires an immediate response, the takings
21 assessment required by Section 20 of this Act may be made
22 after the response is taken.
23 Section 30. Source of compensation. Any award made to
24 an owner of private property from a State agency for a
25 constitutional taking, including any award of attorneys' fees
26 and costs, shall come from the agency's existing budget
27 unless the agency has previously disclosed an estimate of the
28 costs to the Bureau of the Budget and funds were included in
29 the budget for that purpose.
30 Section 35. Attorneys' fees and costs. An owner of
31 private property who successfully establishes that an action
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1 is a constitutional taking of the owner's property requiring
2 payment of just compensation shall be awarded reasonable
3 attorney's fees and costs incurred in establishing that claim
4 in addition to other remedies provided by law.
5 Section 40. Causes of action.
6 (a) An aggrieved property owner may bring an action
7 against a State agency that violates this Act for
8 compensatory damages, mandamus, or other legal or equitable
9 relief.
10 (b) The Attorney General may bring an action to enforce
11 this Act.
12 Section 45. Valuation of property. The assessed value
13 of private property for taxes, levies, and similar purposes
14 shall reflect the effect of an action that is a taking on the
15 fair market value of the property.
16 Section 99. Effective date. This Act takes effect
17 January 1, 1997.