State of Illinois
91st General Assembly
Legislation

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91_HB0110

 
                                               LRB9100774DJcd

 1        AN ACT concerning private property.

 2        Be it enacted by the People of  the  State  of  Illinois,
 3    represented in the General Assembly:

 4                             ARTICLE 5.

 5        Section  5-1.  Short  title. This Article may be cited as
 6    the Property Rights Preservation Law, and references in  this
 7    Article to "this Law" mean this Article.

 8        Section 5-5. State policy; purpose.
 9        (a)  It is the policy of this State that private property
10    may  not  be  taken  for  public  use  by governmental action
11    without payment of just compensation, in accordance with  the
12    meaning  ascribed  to  these  concepts  by  the United States
13    Supreme Court and the Supreme Court of this State.
14        (b)  The  purpose  of  this   Law  is  to  require  State
15    agencies, guided and overseen by  the  Attorney  General,  to
16    evaluate  proposed  government  actions  that may result in a
17    constitutional taking of private property in order  to  avoid
18    unnecessary  burdens  on  the public treasury and unwarranted
19    interference with private property  rights.  It  is  not  the
20    purpose  of  this Law to affect the scope of private property
21    protections afforded by the United States Constitution or the
22    Illinois Constitution.

23        Section 5-10. Definitions. In this Law:
24        "Constitutional taking" or "taking" means the  taking  of
25    private  property by government action such that compensation
26    to the owner of that property is required  under  either  the
27    Illinois Constitution or the Fifth or Fourteenth Amendment to
28    the United States Constitution.
29        "Government action" means any of the following:
 
                            -2-                LRB9100774DJcd
 1             (1)  Existing or proposed rules or regulations that,
 2        if  adopted  or  enforced,  may  limit the use of private
 3        property.
 4             (2)  Existing or proposed conditions,  requirements,
 5        or  limitations  on the use of private property contained
 6        in licenses or permits.
 7             (3)  Required dedications or  exactions  of  private
 8        property.
 9        "Government   action"   does   not  include  any  of  the
10    following:
11             (4)  The formal exercise of  the  power  of  eminent
12        domain.
13             (5)  The  forfeiture  or seizure of private property
14        by law enforcement agencies as evidence of a crime or for
15        a violation of law.
16             (6)  Orders issued by a State agency or court of law
17        that  result  from  a  violation  of  law  and  that  are
18        authorized by statute.
19             (7)  The discontinuance of government programs.
20        "State agency"  means  the  State  of  Illinois  and  any
21    officer,  agency,  board,  commission, department, or similar
22    body of the executive branch of  State  government  and  also
23    means  any unit of local government or school district or any
24    agency of a unit of local government or school district.

25        Section   5-15.  Attorney   General;    guidelines    for
26    determining takings.
27        (a)  The  Attorney  General  must  develop and provide to
28    State  agencies  guidelines  to  assist  in  identifying  and
29    evaluating  government  actions  that   may   result   in   a
30    constitutional  taking.   The  Attorney General must base the
31    guidelines on current law as articulated by the United States
32    Supreme Court and the Supreme  Court  of  Illinois  and  must
33    update the guidelines at least once each year to take account
 
                            -3-                LRB9100774DJcd
 1    of changes in the law.
 2        (b)  In  developing  the  guidelines,  and subject to the
 3    provisions of  subsection  (a),  the  Attorney  General  must
 4    observe the following principles:
 5             (1)  Government  actions  that  result in a physical
 6        invasion  or  occupancy  of  private  property  or   that
 7        decrease  the  value  or  limit  the  use of property may
 8        constitute a taking.
 9             (2)  Government action may amount to a  taking  even
10        though it constitutes less than a complete deprivation of
11        all  use  or value of all separate and distinct interests
12        in the same private property or even though the action is
13        only temporary in nature.
14             (3)  The mere  assertion  of  a  public  purpose  is
15        insufficient  to  avoid a taking.  Government actions  to
16        protect the public health  and  safety  or  to  otherwise
17        further  the  public  interest  should  be  taken only in
18        response to real and substantial public needs and must be
19        designed to significantly address those needs.
20             (4)  Although normal  government  processes  do  not
21        ordinarily constitute takings, an undue delay in decision
22        making that interferes with private property use may be a
23        taking.   In addition, a delay in processing may increase
24        significantly  the  amount  of  compensation  due  if   a
25        constitutional taking is later found to have occurred.
26             (5)  The  constitutional  protections against taking
27        private   property   are   self-executing   and   require
28        compensation  regardless  of   whether   the   underlying
29        authority   for  the  action  contemplated  a  taking  or
30        authorized the payment of compensation for a taking.

31        Section 5-20.  Designation of responsible official.   The
32    Attorney General must designate an official within the office
33    of  the  Attorney  General  to  be  responsible  for ensuring
 
                            -4-                LRB9100774DJcd
 1    compliance with this Law.

 2        Section  5-25.   "Taking"  assessment  by  State  agency.
 3    Before a State agency takes any government action, the agency
 4    must prepare a  written  assessment  of  the  "constitutional
 5    taking"  implications  of that action, in compliance with the
 6    guidelines developed under Section 5-15.   The  agency  shall
 7    deliver  copies  of  this  assessment  to  the  Governor, the
 8    appropriate financial management authority, and the  Attorney
 9    General.    The  agency's  assessment  must  do  all  of  the
10    following:
11             (1)  Assess  the  likelihood  that  the   government
12        action may result in a constitutional taking.
13             (2)  Clearly  and  specifically identify the purpose
14        of the government action.
15             (3)  Explain why the government action is  necessary
16        substantially   to   advance  that  purpose  and  why  no
17        alternative action is available that  would  achieve  the
18        agency's  goals  while reducing the impact on the private
19        property owner.
20             (4)  Estimate the potential costs to the  government
21        if  a  court  determines  that  the  action constitutes a
22        constitutional taking.
23             (5)  Identify  the  source  of  payment  within  the
24        agency's budget for any compensation that may be ordered.
25             (6)  Certify that the  benefits  of  the  government
26        action exceed the estimated compensation costs.

27        Section   5-30.    Emergency  action.   If  there  is  an
28    immediate threat to public health and safety that constitutes
29    an emergency and requires an immediate response, the "taking"
30    assessment required by Section 5-25 may  be  made  after  the
31    response is completed.
 
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 1        Section 5-35.  Cause of action.
 2        (a)  An  aggrieved  property  owner has a cause of action
 3    against  a  State  agency  that   violates   this   Law   for
 4    compensatory  damages,  a writ of mandamus or prohibition, or
 5    other appropriate legal or equitable relief.
 6        (b)  The Attorney General may bring an action to  enforce
 7    compliance with this Law.

 8        Section  5-40.   Attorney's  fees and costs.  An owner of
 9    private  property  who  successfully   establishes   that   a
10    government  action  is a constitutional taking of the owner's
11    property requiring  payment  of  just  compensation  must  be
12    awarded  his  or  her  reasonable  attorney's  fees and costs
13    incurred in establishing that claim,  in  addition  to  other
14    remedies provided by law.

15        Section 5-45.  Source of compensation.  Any award made to
16    an  owner  of  private  property  from  a  State agency for a
17    constitutional taking, including any award of attorney's fees
18    and costs, must come from the agency's existing budget unless
19    the agency has previously disclosed an estimate of the  costs
20    to  the appropriate financial management authority and moneys
21    were included in the budget for that purpose.

22        Section 5-50.  Valuation of property.   If  a  government
23    action  is  a  constitutional  taking,  the  effect  of  that
24    government  action    on the fair market value of the private
25    property taken must be reflected in the assessed valuation of
26    the property for taxes, levies, and similar purposes.

27                             ARTICLE 10.

28        Section 10-1.  Short title.  This Article may be cited as
29    the Relief for Diminished Property Value Law, and  references

 
                            -6-                LRB9100774DJcd
 1    in this Article to "this Law" mean this Article.

 2        Section 10-5.  Definitions.  In this Law:
 3        "Diminution in value of 50% or more" means a reduction of
 4    50% or more in the fair market value of property subject to a
 5    statute, ordinance, regulation, rule, guideline, or policy or
 6    subject to the denial of a permit, license, authorization, or
 7    other governmental permission.
 8        "Owner"  means  (i)  the  owner of property at the time a
 9    statute, regulation, rule, guideline, or policy  was  enacted
10    or  adopted  or  (ii)  the  owner  of  property at the time a
11    permit,  license,  authorization,   or   other   governmental
12    permission was denied.

13        Section  10-10.   Diminution  in property value; cause of
14    action.
15        (a)  The owner of any property may file  a  civil  action
16    against  the State or a unit of local government whenever the
17    application  of  a  statute,  ordinance,  regulation,   rule,
18    permit,   license,   authorization,   or  other  governmental
19    permission of any kind by  the  State  or  a  unit  of  local
20    government  causes  a  diminution in value of the property of
21    50% or more.
22        (b)  A property owner may   file  a  civil  action  under
23    subsection  (a)  in  the circuit court in the county in which
24    the  property  is  located.    That   court   has   exclusive
25    jurisdiction of the claim. The owner may either (i) recover a
26    sum  equal  to  the  diminution  in value of the property and
27    retain title to the property or (ii) recover the entire  fair
28    market  value  of the property before the diminution in value
29    of 50% or more and transfer title  to  the  property  to  the
30    State  or  unit  of local government upon payment of the fair
31    market value of the property.   If  the  statute,  ordinance,
32    regulation,  rule,  guideline,  or policy is rescinded, or if
 
                            -7-                LRB9100774DJcd
 1    the permit, license,  authorization,  or  other  governmental
 2    permission  is granted, before final judgment, then the owner
 3    is entitled to recover in the pending action his or her other
 4    reasonable and necessary costs of the action incurred  before
 5    that  rescission  or grant, together with any economic losses
 6    sustained by reason of the acts giving rise to the diminution
 7    in value.
 8        (c)  No compensation is required under this  Law  if  the
 9    owner's  use  or  proposed  use  of the property amounts to a
10    public  nuisance  as  commonly  understood  and  defined   by
11    principles  of  nuisance and property law.  The State or unit
12    of local government bears the burden of proof with respect to
13    this affirmative defense.

14        Section  10-15.   Invalidation  of  statute,   rule,   or
15    condition.
16        (a)  For  purposes  of  this  Section,  "person"  means a
17    person or persons having  an  interest  that  is  or  may  be
18    adversely affected by a statute, ordinance, regulation, rule,
19    guideline,  or  policy  or  by  a provision or condition of a
20    permit, authorization, or other governmental permission.
21        (b)  A person may commence a civil action on his  or  her
22    own behalf against the State or a unit of local government to
23    invalidate   any   statute,   ordinance,   regulation,  rule,
24    guideline,  or  policy,  or  to  invalidate  a  provision  or
25    condition of a permit, authorization, or  other  governmental
26    permission,  that  does  not substantially advance its stated
27    governmental  purpose.   The  circuit  court  has   exclusive
28    jurisdiction  over  actions  brought  under  this Section.  A
29    person  may  plead  an  action  under  this  Section  in  the
30    alternative  in  a  complaint  pleading  a  cause  of  action
31    authorized under Section 10-10.
32        (c)  An  action  under   this   Section   is   ripe   for
33    adjudication  upon  the enactment or adoption of the statute,
 
                            -8-                LRB9100774DJcd
 1    ordinance, regulation, rule, guideline, or policy or upon the
 2    imposition of the  provision  or  condition  of  the  permit,
 3    authorization,  or  other governmental permission against any
 4    parcel of property.

 5        Section   10-20.  Application   of   Law;   statute    of
 6    limitation.
 7        (a)  This    Law   applies   to   statutes,   ordinances,
 8    regulations, rules, guidelines, policies, and the  provisions
 9    or   conditions   of  any  permit,  authorization,  or  other
10    governmental permission in effect on or after  the  effective
11    date of this Law.
12        (b)  An  action  may  not  be brought under this Law more
13    than 6 years after (i)  the  enactment  or  adoption  of  the
14    statute,  regulation,  rule, guideline, or policy or (ii) the
15    denial by the State or a unit  of  local  government  of  the
16    permit,   license,   authorization,   or  other  governmental
17    permission upon which the action is based.

18        Section 10-25.  Award of costs.  In issuing a final order
19    in an action brought under this  Law  the  court  must  award
20    costs of litigation (including reasonable attorney's fees and
21    expert  witness's  fees)  to  a  plaintiff  who  prevails  or
22    substantially prevails.

23        Section  10-30.  Constitutional  or  statutory rights not
24    restricted.  Nothing in this  Law  restricts  any  remedy  or
25    right  that  a  person or class of persons may have under any
26    provision of  the  Illinois  Constitution  or  United  States
27    Constitution  or  under  any  law  of  Illinois or the United
28    States.

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