97TH GENERAL ASSEMBLY
State of Illinois
2011 and 2012
HB5897

 

Introduced 2/16/2012, by Rep. Thomas Morrison

 

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

    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.


LRB097 19377 AJO 64630 b

 

 

A BILL FOR

 

HB5897LRB097 19377 AJO 64630 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

 

 

HB5897- 2 -LRB097 19377 AJO 64630 b

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    (a-15) In addition to all other limitations and
25requirements, a condemning authority other than the State may
26not take or damage property that is agricultural land by the

 

 

HB5897- 3 -LRB097 19377 AJO 64630 b

1exercise of the power of eminent domain for the establishment
2of 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

 

 

HB5897- 4 -LRB097 19377 AJO 64630 b

1    limited to educational, vocational and religious
2    activities and assemblies.
3    (b) If the exercise of eminent domain authority is to
4acquire property for public ownership and control, then the
5condemning authority must prove that (i) the acquisition of the
6property is necessary for a public purpose and (ii) the
7acquired property will be owned and controlled by the
8condemning 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
11subsection (d), (e), or (f) and the condemning authority elects
12to proceed under one of those subsections, if the exercise of
13eminent domain authority is to acquire property for private
14ownership or control, or both, then the condemning authority
15must prove by clear and convincing evidence that the
16acquisition of the property for private ownership or control is
17(i) primarily for the benefit, use, or enjoyment of the public
18and (ii) necessary for a public purpose.
19    An acquisition of property primarily for the purpose of the
20elimination of blight is rebuttably presumed to be for a public
21purpose and primarily for the benefit, use, or enjoyment of the
22public under this subsection.
23    Any challenge to the existence of blighting factors alleged
24in a complaint to condemn under this subsection shall be raised
25within 6 months of the filing date of the complaint to condemn,
26and if not raised within that time the right to challenge the

 

 

HB5897- 5 -LRB097 19377 AJO 64630 b

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

 

 

HB5897- 6 -LRB097 19377 AJO 64630 b

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
11acquire property for private ownership or control and if the
12primary basis for the acquisition is the elimination of blight
13and the condemning authority elects to proceed under this
14subsection, then the condemning authority must: (i) prove by a
15preponderance of the evidence that acquisition of the property
16for private ownership or control is necessary for a public
17purpose; (ii) prove by a preponderance of the evidence that the
18property to be acquired is located in an area that is currently
19designated as a blighted area or conservation area under an
20applicable statute; (iii) if the existence of blight or
21blighting factors is challenged in an appropriate motion filed
22within 6 months after the date of filing of the complaint to
23condemn, prove by a preponderance of the evidence that the
24required blighting factors existed in the area so designated
25(but not necessarily in the particular property to be acquired)
26at the time of the designation under item (ii) or at any time

 

 

HB5897- 7 -LRB097 19377 AJO 64630 b

1thereafter; and (iv) prove by a preponderance of the evidence
2at 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

 

 

HB5897- 8 -LRB097 19377 AJO 64630 b

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

 

 

HB5897- 9 -LRB097 19377 AJO 64630 b

1evidence that: (i) the acquisition of the property is necessary
2for a public purpose; (ii) an enforceable written agreement,
3deed restriction, or similar encumbrance has been or will be
4executed and recorded against the acquired property to assure
5that the project and the use of the property remain consistent
6with the applicable purpose specified in item (iii) of this
7subsection for a period of at least 40 years, which execution
8and recording shall be included as a requirement in any final
9order entered in the condemnation proceeding; and (iii) the
10acquired 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

 

 

HB5897- 10 -LRB097 19377 AJO 64630 b

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
20acquire property for public ownership and private control and
21if the primary purpose of the acquisition is one of the
22purposes specified in item (iii) of this subsection and the
23condemning authority elects to proceed under this subsection,
24then the condemning authority must prove by a preponderance of
25the evidence that: (i) the acquisition of the property is
26necessary for a public purpose; (ii) the acquired property will

 

 

HB5897- 11 -LRB097 19377 AJO 64630 b

1be owned by the condemning authority or another governmental
2entity; and (iii) the acquired property will be controlled by a
3private party that operates a business or facility related to
4the condemning authority's operation of a university, medical
5district, hospital, exposition or convention center, mass
6transportation facility, or airport, including, but not
7limited to, a medical clinic, research and development center,
8food or commercial concession facility, social service
9facility, maintenance or storage facility, cargo facility,
10rental car facility, bus facility, taxi facility, flight
11kitchen, fixed based operation, parking facility, refueling
12facility, water supply facility, and railroad tracks and
13stations.
14    (g) This Article is a limitation on the exercise of the
15power of eminent domain, but is not an independent grant of
16authority 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
19becoming law.