100TH GENERAL ASSEMBLY
State of Illinois
2017 and 2018
HB4150

 

Introduced , by Rep. Lindsay Parkhurst

 

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

    Amends the Eminent Domain Act. In language creating a rebuttable presumption that the acquisition of certain property (or right or interest in property) is (i) primarily for the benefit, use, or enjoyment of the public; and (ii) necessary for a public purpose, removes: language referring to the use of the land for railroads; and references to land acquired under certain other Acts. Provides that if the exercise of eminent domain authority is to acquire property for private ownership or control and if the primary purpose of the acquisition is, among other enumerated purposes, ownership or use by a railroad for passenger transportation purposes (instead of "passenger or freight transportation purposes), then the condemning authority must prove by a preponderance of the evidence that the acquisition of the property is necessary for a public purpose and that an instrument has been or will be executed and recorded against the acquired property to assure that the project and the use of the property remain consistent with the use for a period of at least 40 years, which execution and recording shall be included as a requirement in any final order entered in the condemnation proceeding.


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A BILL FOR

 

HB4150LRB100 14915 HEP 30486 b

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 or , pipeline, or railroad purposes for which
12no certificate or finding of public convenience and necessity
13by the Illinois Commerce Commission is required, evidence that
14the acquisition 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) (blank) the Grand Avenue Railroad Relocation
25    Authority Act,
26        (6) (blank) the West Cook Railroad Relocation and

 

 

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

 

 

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

 

 

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

 

 

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

 

 

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1    waste-to-energy, or similar facility;
2        (6) sold or leased to a not-for-profit corporation
3    whose purposes include the preservation of open space, the
4    operation of park space, and similar public purposes;
5        (7) used as a library, museum, or related facility, or
6    as infrastructure related to such a facility;
7        (8) used by a private party for the operation of a
8    charter school open to the general public; or
9        (9) a historic resource, as defined in Section 3 of the
10    Illinois State Agency Historic Resources Preservation Act,
11    a landmark designated as such under a local ordinance, or a
12    contributing structure within a local landmark district
13    listed on the National Register of Historic Places, that is
14    being acquired for purposes of preservation or
15    rehabilitation.
16    (f) If the exercise of eminent domain authority is to
17acquire property for public ownership and private control and
18if the primary purpose of the acquisition is one of the
19purposes specified in item (iii) of this subsection and the
20condemning authority elects to proceed under this subsection,
21then the condemning authority must prove by a preponderance of
22the evidence that: (i) the acquisition of the property is
23necessary for a public purpose; (ii) the acquired property will
24be owned by the condemning authority or another governmental
25entity; and (iii) the acquired property will be controlled by a
26private party that operates a business or facility related to

 

 

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1the condemning authority's operation of a university, medical
2district, hospital, exposition or convention center, mass
3transportation facility, or airport, including, but not
4limited to, a medical clinic, research and development center,
5food or commercial concession facility, social service
6facility, maintenance or storage facility, cargo facility,
7rental car facility, bus facility, taxi facility, flight
8kitchen, fixed based operation, parking facility, refueling
9facility, water supply facility, and railroad tracks and
10stations.
11    (g) This Article is a limitation on the exercise of the
12power of eminent domain, but is not an independent grant of
13authority to exercise the power of eminent domain.
14(Source: P.A. 94-1055, eff. 1-1-07.)