State of Illinois
2021 and 2022


Introduced 1/5/2022, by Rep. Jay Hoffman


65 ILCS 5/11-124-5
65 ILCS 5/11-139-12  from Ch. 24, par. 11-139-12
735 ILCS 30/10-5-10  was 735 ILCS 5/7-102

    Amends the Illinois Municipal Code and the Eminent Domain Act. Provides that no property belonging to a public utility providing water or sewer service subject to the jurisdiction of the Illinois Commerce Commission may be taken or damaged by eminent domain without prior approval of the Illinois Commerce Commission. Excludes eminent domain actions commenced prior to the effective date of the amendatory Act. Effective immediately.

LRB102 20005 AWJ 28813 b





HB4289LRB102 20005 AWJ 28813 b

1    AN ACT concerning local government.
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
4    Section 5. The Illinois Municipal Code is amended by
5changing Sections 11-124-5 and 11-139-12 as follows:
6    (65 ILCS 5/11-124-5)
7    Sec. 11-124-5. Acquisition of water systems by eminent
9    (a) In addition to other provisions providing for the
10acquisition of water systems or water works, whenever a public
11utility subject to the Public Utilities Act utilizes public
12property (including, but not limited to, right-of-way) of a
13municipality for the installation or maintenance of all or
14part of its water distribution system, the municipality has
15the right to exercise eminent domain to acquire all or part of
16the water system, in accordance with this Section. Unless it
17complies with the provisions set forth in this Section, a
18municipality is not permitted to acquire by eminent domain
19that portion of a system located in another incorporated
20municipality without agreement of that municipality, but this
21provision shall not prevent the acquisition of that portion of
22the water system existing within the acquiring municipality.
23    (b) Where a water system that is owned by a public utility



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1(as defined in the Public Utilities Act) provides water to
2customers located in 2 or more municipalities, the system may
3be acquired by a majority of the municipalities by eminent
4domain. If the system is to be acquired by more than one
5municipality, then there must be an intergovernmental
6agreement in existence between the acquiring municipalities
7providing for the acquisition.
8    (c) If a water system that is owned by a public utility
9provides water to customers located in one or more
10municipalities and also to customers in an unincorporated area
11and if at least 70% of the customers of the system or portion
12thereof are located within the municipality or municipalities,
13then the system, or portion thereof as determined by the
14corporate authorities, may be acquired, using eminent domain
15or otherwise, by either a municipality under subsection (a) or
16an entity created by agreement between municipalities where at
17least 70% of the customers reside. For the purposes of
18determining "customers of the system", only retail customers
19directly billed by the company shall be included in the
20computation. The number of customers of the system most
21recently reported to the Illinois Commerce Commission for any
22calendar year preceding the year a resolution is passed by a
23municipality or municipalities expressing preliminary intent
24to purchase the water system or portion thereof shall be
25presumed to be the total number of customers within the
26system. The public utility shall provide information relative



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1to the number of customers within each municipality and within
2the system within 60 days after any such request by a
4    (d) In the case of acquisition by a municipality or
5municipalities or a public entity created by law to own or
6operate a water system under this Section, service and water
7supply must be provided to persons who are customers of the
8system on the effective date of this amendatory Act of the 94th
9General Assembly without discrimination based on whether the
10customer is located within or outside of the boundaries of the
11acquiring municipality or municipalities or entity, and a
12supply contract existing on the effective date of this
13amendatory Act of the 94th General Assembly must be honored by
14an acquiring municipality, municipalities, or entity according
15to the terms so long as the agreement does not conflict with
16any other existing agreement.
17    (e) For the purposes of this Section, "system" includes
18all assets reasonably necessary to provide water service to a
19contiguous or compact geographical service area or to an area
20served by a common pipeline and include, but are not limited
21to, interests in real estate, all wells, pipes, treatment
22plants, pumps and other physical apparatus, data and records
23of facilities and customers, fire hydrants, equipment, or
24vehicles and also includes service agreements and obligations
25derived from use of the assets, whether or not the assets are
26contiguous to the municipality, municipalities, or entity



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1created for the purpose of owning or operating a water system.
2    (f) Before making a good faith offer, a municipality may
3pass a resolution of intent to study the feasibility of
4purchasing or exercising its power of eminent domain to
5acquire any water system or water works, sewer system or sewer
6works, or combined water and sewer system or works, or part
7thereof. Upon the passage of such a resolution, the
8municipality shall have the right to review and inspect all
9financial and other records, and both corporeal and
10incorporeal assets of such utility related to the condition
11and the operation of the system or works, or part thereof, as
12part of the study and determination of feasibility of the
13proposed acquisition by purchase or exercise of the power of
14eminent domain, and the utility shall make knowledgeable
15persons who have access to all relevant facts and information
16regarding the subject system or works available to answer
17inquiries related to the study and determination.
18    The right to review and inspect shall be upon reasonable
19notice to the utility, with reasonable inspection and review
20time limitations and reasonable response times for production,
21copying, and answer. In addition, the utility may utilize a
22reasonable security protocol for personnel on the
23municipality's physical inspection team.
24    In the absence of other agreement, the utility must
25respond to any notice by the municipality concerning its
26review and inspection within 21 days after receiving the



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1notice. The review and inspection of the assets of the company
2shall be over such period of time and carried out in such
3manner as is reasonable under the circumstances.
4    Information requested that is not privileged or protected
5from discovery under the Illinois Code of Civil Procedure but
6is reasonably claimed to be proprietary, including, without
7limitation, information that constitutes trade secrets or
8information that involves system security concerns, shall be
9provided, but shall not be considered a public record and
10shall be kept confidential by the municipality.
11    In addition, the municipality must, upon request,
12reimburse the utility for the actual, reasonable costs and
13expenses, excluding attorneys' fees, incurred by the utility
14as a result of the municipality's inspection and requests for
15information. Upon written request, the utility shall issue a
16statement itemizing, with reasonable detail, the costs and
17expenses for which reimbursement is sought by the utility.
18Where such written request for a statement has been made, no
19payment shall be required until 30 days after receipt of the
20statement. Such reimbursement by the municipality shall be
21considered income for purposes of any rate proceeding or other
22financial request before the Illinois Commerce Commission by
23the utility.
24    The municipality and the utility shall cooperate to
25resolve any dispute arising under this subsection. In the
26event the dispute under this subsection cannot be resolved,



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1either party may request relief from the circuit court in any
2county in which the water system is located, with the
3prevailing party to be awarded such relief as the court deems
4appropriate under the discovery abuse sanctions currently set
5forth in the Illinois Code of Civil Procedure.
6    The municipality's right to inspect physical assets and
7records in connection with the purpose of this Section shall
8not be exercised with respect to any system more than one time
9during a 5-year period, unless a substantial change in the
10size of the system or condition of the operating assets of the
11system has occurred since the previous inspection. Rights
12under franchise agreements and other agreements or statutory
13or regulatory provisions are not limited by this Section and
14are preserved.
15    The passage of time between an inspection of the utilities
16and physical assets and the making of a good faith offer or
17initiation of an eminent domain action because of the limit
18placed on inspections by this subsection shall not be used as a
19basis for challenging the good faith of any offer or be used as
20the basis for attacking any appraisal, expert, argument, or
21position before a court related to an acquisition by purchase
22or eminent domain.
23    (g) Notwithstanding any other provision of law other than
24as provided in subsection (g-5), the Illinois Commerce
25Commission has no approval authority of any eminent domain
26action brought by any governmental entity or combination of



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1such entities to acquire water systems or water works.
2    (g-5) No property belonging to a public utility providing
3water or sewer service subject to the jurisdiction of the
4Illinois Commerce Commission may be taken or damaged under the
5provisions of this Section without prior approval of the
6Illinois Commerce Commission. This subsection does not apply
7to any action under this Section commenced prior to the
8effective date of this amendatory Act of the 102nd General
10    (h) The provisions of this Section are severable under
11Section 1.31 of the Statute on Statutes.
12    (i) This Section does not apply to any public utility
13company that, on January 1, 2006, supplied a total of 70,000 or
14fewer meter connections in the State unless and until (i) that
15public utility company receives approval from the Illinois
16Commerce Commission under Section 7-204 of the Public
17Utilities Act for the reorganization of the public utility
18company or (ii) the majority control of the company changes
19through a stock sale, a sale of assets, a merger (other than an
20internal reorganization) or otherwise. For the purpose of this
21Section, "public utility company" means the public utility
22providing water service and includes any of its corporate
23parents, subsidiaries, or affiliates possessing a franchised
24water service in the State.
25    (j) Any contractor or subcontractor that performs work on
26a water system acquired by a municipality or municipalities



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1under this Section shall comply with the requirements of
2Section 30-22 of the Illinois Procurement Code. The contractor
3or subcontractor shall submit evidence of compliance with
4Section 30-22 to the municipality or municipalities.
5    (k) The municipality or municipalities acquiring the water
6system shall offer available employee positions to the
7qualified employees of the acquired water system.
8(Source: P.A. 97-586, eff. 8-26-11; 97-813, eff. 7-13-12.)
9    (65 ILCS 5/11-139-12)  (from Ch. 24, par. 11-139-12)
10    Sec. 11-139-12. (a) For the purpose of acquiring,
11constructing, extending, or improving any combined waterworks
12and sewerage system under this Division 139, or any property
13necessary or appropriate therefor, any municipality has the
14right of eminent domain, as provided by the Eminent Domain
16    The fair cash market value of an existing waterworks and
17sewerage system, or portion thereof, acquired under this
18Division 139, which existing system is a special use property,
19may be determined by considering Section 15 of Article I of the
20Illinois Constitution, the Eminent Domain Act, and the Uniform
21Standards of Professional Appraisal Practice and giving due
22consideration to the income, cost, and market approaches to
23valuation based on the type and character of the assets being
24acquired. In making the valuation determination, the
25historical and projected revenue attributable to the assets,



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1the costs of the assets, and the condition and remaining
2useful life of the assets may be considered while giving due
3account to the special use nature of the property as used for
4water and sewerage purposes.
5    Additionally, in determining the fair cash market value of
6existing utility facilities, whether real or personal,
7consideration may be given to the depreciated value of all
8facilities and fixtures constructed by the utility company and
9payments made by the utility company in connection with the
10acquisition or donation of any waterworks or sanitary sewage
12    For the purposes of this Section no prior approval of the
13Illinois Commerce Commission, or any other body having
14jurisdiction over the existing system, shall be required,
15except as provided in subsection (b).
16    (b) No property belonging to a public utility providing
17water or sewer service subject to the jurisdiction of the
18Illinois Commerce Commission may be taken or damaged under the
19provisions of this Section without prior approval of the
20Illinois Commerce Commission. This subsection does not apply
21to any action under this Section commenced prior to the
22effective date of this amendatory Act of the 102nd General
24(Source: P.A. 96-1468, eff. 8-20-10.)
25    Section 10. The Eminent Domain Act is amended by changing



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1Section 10-5-10 as follows:
2    (735 ILCS 30/10-5-10)  (was 735 ILCS 5/7-102)
3    Sec. 10-5-10. Parties.
4    (a) When the right (i) to take private property for public
5use, without the owner's consent, (ii) to construct or
6maintain any public road, railroad, plankroad, turnpike road,
7canal, or other public work or improvement, or (iii) to damage
8property not actually taken has been or is conferred by
9general law or special charter upon any corporate or municipal
10authority, public body, officer or agent, person,
11commissioner, or corporation and when (i) the compensation to
12be paid for or in respect of the property sought to be
13appropriated or damaged for the purposes mentioned cannot be
14agreed upon by the parties interested, (ii) the owner of the
15property is incapable of consenting, (iii) the owner's name or
16residence is unknown, or (iv) the owner is a nonresident of the
17State, then the party authorized to take or damage the
18property so required, or to construct, operate, and maintain
19any public road, railroad, plankroad, turnpike road, canal, or
20other public work or improvement, may apply to the circuit
21court of the county where the property or any part of the
22property is situated, by filing with the clerk a complaint.
23The complaint shall set forth, by reference, (i) the
24complainant's authority in the premises, (ii) the purpose for
25which the property is sought to be taken or damaged, (iii) a



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1description of the property, and (iv) the names of all persons
2interested in the property as owners or otherwise, as
3appearing of record, if known, or if not known stating that
4fact; and shall pray the court to cause the compensation to be
5paid to the owner to be assessed.
6    (b) If it appears that any person not in being, upon coming
7into being, is, or may become or may claim to be, entitled to
8any interest in the property sought to be appropriated or
9damaged, the court shall appoint some competent and
10disinterested person as guardian ad litem to appear for and
11represent that interest in the proceeding and to defend the
12proceeding on behalf of the person not in being. Any judgment
13entered in the proceeding shall be as effectual for all
14purposes as though the person was in being and was a party to
15the proceeding.
16    (c) If the proceeding seeks to affect the property of
17persons under guardianship, the guardians shall be made
18parties defendant.
19    (d) Any interested persons whose names are unknown may be
20made parties defendant by the same descriptions and in the
21same manner as provided in other civil cases.
22    (e) When the property to be taken or damaged is a common
23element of property subject to a declaration of condominium
24ownership, pursuant to the Condominium Property Act, or of a
25common interest community, the complaint shall name the unit
26owners' association in lieu of naming the individual unit



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1owners and lienholders on individual units. Unit owners,
2mortgagees, and other lienholders may intervene as parties
3defendant. For the purposes of this Section, "common interest
4community" has the same meaning as set forth in subsection (c)
5of Section 9-102 of the Code of Civil Procedure. "Unit owners'
6association" or "association" shall refer to both the
7definition contained in Section 2 of the Condominium Property
8Act and subsection (c) of Section 9-102 of the Code of Civil
10    (f) When the property is sought to be taken or damaged by
11the State for the purposes of establishing, operating, or
12maintaining any State house or State charitable or other
13institutions or improvements, the complaint shall be signed by
14the Governor, or the Governor's designee, or as otherwise
15provided by law.
16    (g) No property, except property described in Section 3 of
17the Sports Stadium Act, property to be acquired in furtherance
18of actions under Article 11, Divisions 124, 126, 128, 130,
19135, 136, and 139, of the Illinois Municipal Code, property to
20be acquired in furtherance of actions under Section 3.1 of the
21Intergovernmental Cooperation Act, property to be acquired
22that is a water system or waterworks pursuant to the home rule
23powers of a unit of local government (other than as provided in
24subsection (h)), and property described as Site B in Section 2
25of the Metropolitan Pier and Exposition Authority Act, and
26property that may be taken as provided in the Public-Private



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1Agreements for the South Suburban Airport Act belonging to a
2railroad or other public utility subject to the jurisdiction
3of the Illinois Commerce Commission, may be taken or damaged,
4pursuant to the provisions of this Act, without the prior
5approval of the Illinois Commerce Commission.
6    (h) No property belonging to a public utility providing
7water or sewer service subject to the jurisdiction of the
8Illinois Commerce Commission may be taken or damaged by
9eminent domain without prior approval of the Illinois Commerce
10Commission. This subsection does not apply to any action under
11this Section commenced prior to the effective date of this
12amendatory Act of the 102nd General Assembly.
13(Source: P.A. 98-109, eff. 7-25-13.)
14    Section 99. Effective date. This Act takes effect upon
15becoming law.