Full Text of SB3086 94th General Assembly
SB3086ham002 94TH GENERAL ASSEMBLY
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Judiciary I - Civil Law Committee
Adopted in House Comm. on Apr 12, 2006
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| AMENDMENT TO SENATE BILL 3086
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| AMENDMENT NO. ______. Amend Senate Bill 3086, AS AMENDED, | 3 |
| by replacing all of Section 1-1-5 with the following:
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| "Section 1-1-5. Definitions. As used in this Act, except | 5 |
| with respect to the acquisition or damaging of property | 6 |
| authorized under the O'Hare Modernization Act: | 7 |
| "Acquisition of property", unless the context otherwise | 8 |
| requires, includes the acquisition, damaging, or use of | 9 |
| property or any right to or interest in property. | 10 |
| "Blighted area", "blight", and "blighted" have the same | 11 |
| meanings as under the applicable statute authorizing the | 12 |
| condemning authority to exercise the power of eminent domain | 13 |
| or, if those terms have no defined meaning under the applicable | 14 |
| statute, then the same meanings as under Section 11-74.4-3 of | 15 |
| the Illinois Municipal Code. | 16 |
| "Condemning authority" means the State or any unit of local | 17 |
| government, school district, or other entity authorized to | 18 |
| exercise the power of eminent domain."; and | 19 |
| by replacing all of Section 5-5-5 with the following: | 20 |
| "Section 5-5-5. Exercise of the power of eminent domain; | 21 |
| public use; blight. | 22 |
| (a) In addition to all other limitations and requirements, | 23 |
| a condemning authority may not take or damage property by the |
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| exercise of the power of eminent domain unless it is for a | 2 |
| public use, as set forth in this Section. | 3 |
| (a-5) Subsections (b), (c), (d), (e), and (f) of this | 4 |
| Section do not apply to the acquisition of property under the | 5 |
| O'Hare Modernization Act. A condemning authority may exercise | 6 |
| the power of eminent domain for the acquisition of property | 7 |
| under the O'Hare modernization Act or in furtherance of the | 8 |
| goals or objectives of an existing redevelopment plan. | 9 |
| (a-10) Subsections (b), (c), (d), (e), and (f) of this | 10 |
| Section do not apply to the acquisition or damaging of property | 11 |
| in furtherance of the goals and objectives of an existing tax | 12 |
| increment allocation redevelopment plan. | 13 |
| As used in this subsection, "existing tax increment | 14 |
| allocation redevelopment plan" means a redevelopment plan that | 15 |
| was adopted under the Tax Increment Allocation Redevelopment | 16 |
| Act (Article 11, Division 74.4 of the Illinois Municipal Code) | 17 |
| prior to April 15, 2006 and for which property assembly costs | 18 |
| were, before that date, included as a budget line item in the | 19 |
| plan or described in the narrative portion of the plan as part | 20 |
| of the redevelopment project, but does not include (i) any | 21 |
| additional area added to the redevelopment project area on or | 22 |
| after April 15, 2006, (ii) any subsequent extension of the | 23 |
| completion date of a redevelopment plan beyond the estimated | 24 |
| completion date established in that plan prior to April 15, | 25 |
| 2006, (iii) any acquisition of property in a conservation area | 26 |
| for which the condemnation complaint is filed more than 12 | 27 |
| years after the effective date of this Act, or (iv) any | 28 |
| acquisition of property in an industrial park conservation | 29 |
| area. | 30 |
| As used in this subsection, "conservation area" and | 31 |
| "industrial park conservation area" have the same meanings as | 32 |
| under Section 11-74.4-3 of the Illinois Municipal Code. | 33 |
| (b) If the exercise of eminent domain authority is to | 34 |
| acquire property for public ownership and control and for a |
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| public use, then the condemning authority must prove that (i) | 2 |
| the acquisition of the property is necessary for a public | 3 |
| purpose and (ii) the acquired property will be owned and | 4 |
| controlled by the condemning authority or another governmental | 5 |
| entity. | 6 |
| (c) Except when the acquisition is governed by subsection | 7 |
| (b) or is primarily for one of the purposes specified in | 8 |
| subsection (d), (e), or (f) and the condemning authority elects | 9 |
| to proceed under one of those subsections, if the exercise of | 10 |
| eminent domain authority is to acquire property for private | 11 |
| ownership or control, or both, and for a public use, then the | 12 |
| condemning authority must prove by clear and convincing | 13 |
| evidence that the acquisition of the property for private | 14 |
| ownership or control is (i) primarily for the benefit, use, or | 15 |
| enjoyment of the public and (ii) necessary for a public | 16 |
| purpose. | 17 |
| An acquisition of property primarily for the purpose of the | 18 |
| elimination of blight is rebuttably presumed to be for a public | 19 |
| purpose and primarily for the benefit, use, or enjoyment of the | 20 |
| public under this subsection. | 21 |
| Any challenge to the existence of blighting factors alleged | 22 |
| in a complaint to condemn under this subsection shall be raised | 23 |
| within 6 months of the filing date of the complaint to condemn, | 24 |
| and if not raised within that time the right to challenge the | 25 |
| existence of those blighting factors shall be deemed waived. | 26 |
| Evidence that the Illinois Commerce Commission has granted | 27 |
| a certificate or otherwise made a finding of public convenience | 28 |
| and necessity for an acquisition of property (or any right or | 29 |
| interest in property) for private ownership or control | 30 |
| (including, without limitation, an acquisition for which the | 31 |
| use of eminent domain is authorized under the Public Utilities | 32 |
| Act, the Telephone Company Act, or the Electric Supplier Act) | 33 |
| to be used for utility purposes creates a rebuttable | 34 |
| presumption that such acquisition of that property (or right or |
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| interest in property) is (i) primarily for the benefit, use, or | 2 |
| enjoyment of the public and (ii) necessary for a public | 3 |
| purpose. | 4 |
| In the case of an acquisition of property (or any right or | 5 |
| interest in property) for private ownership or control to be | 6 |
| used for utility, pipeline, or railroad purposes for which no | 7 |
| certificate or finding of public convenience and necessity by | 8 |
| the Illinois Commerce Commission is required, evidence that the | 9 |
| acquisition is one for which the use of eminent domain is | 10 |
| authorized under one of the following laws creates a rebuttable | 11 |
| presumption that the acquisition of that property (or right or | 12 |
| interest in property) is (i) primarily for the benefit, use, or | 13 |
| enjoyment of the public and (ii) necessary for a public | 14 |
| purpose: | 15 |
| (1) the Public Utilities Act, | 16 |
| (2) the Telephone Company Act, | 17 |
| (3) the Electric Supplier Act, | 18 |
| (4) the Railroad Terminal Authority Act, | 19 |
| (5) the Grand Avenue Railroad Relocation Authority | 20 |
| Act, | 21 |
| (6) the West Cook Railroad Relocation and Development | 22 |
| Authority Act, | 23 |
| (7) Section 4-505 of the Illinois Highway Code, | 24 |
| (8) Section 17 or 18 of the Railroad Incorporation Act, | 25 |
| (9) Section 18c-7501 of the Illinois Vehicle Code. | 26 |
| (d) If the exercise of eminent domain authority is to | 27 |
| acquire property for private ownership or control and for a | 28 |
| public use, and if the primary basis for the acquisition is the | 29 |
| elimination of blight and the condemning authority elects to | 30 |
| proceed under this subsection, then the condemning authority | 31 |
| must: (i) prove by a preponderance of the evidence that | 32 |
| acquisition of the property for private ownership or control is | 33 |
| necessary for a public purpose; (ii) prove by a preponderance | 34 |
| of the evidence that the property to be acquired is located in |
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| an area that is currently designated as a blighted area or | 2 |
| conservation area under an applicable statute; (iii) if the | 3 |
| existence of blight or blighting factors is challenged in an | 4 |
| appropriate motion filed within 6 months after the date of | 5 |
| filing of the complaint to condemn, prove by a preponderance of | 6 |
| the evidence that the required blighting factors existed in the | 7 |
| area so designated (but not necessarily in the particular | 8 |
| property to be acquired) at the time of the designation under | 9 |
| item (ii) or at any time thereafter; and (iv) prove by a | 10 |
| preponderance of the evidence at least one of the following: | 11 |
| (A) that it has entered into an express written | 12 |
| agreement in which a private person or entity agrees to | 13 |
| undertake a development project within the blighted area | 14 |
| that specifically details the reasons for which the | 15 |
| property or rights in that property are necessary for the | 16 |
| development project; | 17 |
| (B) that the exercise of eminent domain power and the | 18 |
| proposed use of the property by the condemning authority | 19 |
| are consistent with a regional plan that has been adopted | 20 |
| within the past 5 years in accordance with Section 5-14001 | 21 |
| of the Counties Code or Section 11-12-6 of the Illinois | 22 |
| Municipal Code or with a local land resource management | 23 |
| plan adopted under Section 4 of the Local Land Resource | 24 |
| Management Planning Act; or | 25 |
| (C) that (1) the acquired property will be used in the | 26 |
| development of a project that is consistent with the land | 27 |
| uses set forth in a comprehensive redevelopment plan | 28 |
| prepared in accordance with the applicable statute | 29 |
| authorizing the condemning authority to exercise the power | 30 |
| of eminent domain and is consistent with the goals and | 31 |
| purposes of that comprehensive redevelopment plan, and (2) | 32 |
| an enforceable written agreement, deed restriction, or | 33 |
| similar encumbrance has been or will be executed and | 34 |
| recorded against the acquired property to assure that the |
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| 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 | 7 |
| official act designating an area as blighted is not prima facie | 8 |
| evidence of the existence of blight. A finding by the court in | 9 |
| a condemnation proceeding that a property or area has not been | 10 |
| proven to be blighted does not apply to any other case or | 11 |
| undermine the designation of a blighted area or conservation | 12 |
| area or the determination of the existence of blight for any | 13 |
| other purpose or under any other statute, including without | 14 |
| limitation under the Tax Increment Allocation Redevelopment | 15 |
| Act (Article 11, Division 74.4 of the Illinois Municipal Code). | 16 |
| Any challenge to the existence of blighting factors alleged | 17 |
| in a complaint to condemn under this subsection shall be raised | 18 |
| within 6 months of the filing date of the complaint to condemn, | 19 |
| and if not raised within that time the right to challenge the | 20 |
| existence of those blighting factors shall be deemed waived. | 21 |
| (e) If the exercise of eminent domain authority is to | 22 |
| acquire property for private ownership or control and for a | 23 |
| public use, and if the primary purpose of the acquisition is | 24 |
| one of the purposes specified in item (iii) of this subsection | 25 |
| and the condemning authority elects to proceed under this | 26 |
| subsection, then the condemning authority must prove by a | 27 |
| preponderance of the evidence that: (i) the acquisition of the | 28 |
| property is necessary for a public purpose; (ii) an enforceable | 29 |
| written agreement, deed restriction, or similar encumbrance | 30 |
| has been or will be executed and recorded against the acquired | 31 |
| property to assure that the project and the use of the property | 32 |
| remain consistent with the applicable purpose specified in item | 33 |
| (iii) of this subsection for a period of at least 40 years, | 34 |
| which execution and recording shall be included as a |
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| requirement in any final order entered in the condemnation | 2 |
| proceeding; and (iii) the acquired property will be one of the | 3 |
| following:
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| (1) included in the project site for a residential | 5 |
| project, or a
mixed-use project including residential | 6 |
| units, where not less than 20% of the residential units in | 7 |
| the project are made available, for at least 15 years, by | 8 |
| deed
restriction, long-term lease, regulatory agreement, | 9 |
| extended use agreement, or a
comparable recorded | 10 |
| encumbrance, to low-income households and very low-income | 11 |
| households, as defined in Section 3 of
the Illinois | 12 |
| Affordable Housing Act; | 13 |
| (2) used primarily for public airport, road, parking, | 14 |
| or mass transportation purposes and sold or leased to a | 15 |
| private party in a sale-leaseback, lease-leaseback,
or | 16 |
| similar structured financing; | 17 |
| (3) owned or used by a public utility or electric | 18 |
| cooperative for utility purposes; | 19 |
| (4) owned or used by a railroad for
passenger or | 20 |
| freight transportation purposes; | 21 |
| (5)
sold or leased to a private party that operates a | 22 |
| water supply, waste water,
recycling, waste disposal, | 23 |
| waste-to-energy, or similar facility; | 24 |
| (6) sold or leased
to a not-for-profit corporation | 25 |
| whose purposes include the preservation of open
space, the | 26 |
| operation of park space, and similar public purposes; | 27 |
| (7)
used as a library, museum, or related facility, or | 28 |
| as infrastructure related to
such a facility; | 29 |
| (8) used by a private party for the
operation of a | 30 |
| charter school open to the general public; or
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| (9) a historic resource, as defined in Section 3 of the | 32 |
| Illinois State Agency Historic Resources Preservation Act, | 33 |
| a landmark designated as such under a local ordinance, or a | 34 |
| contributing structure within a local landmark district |
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| listed on the National Register of Historic Places, that is | 2 |
| being acquired for purposes of preservation or | 3 |
| rehabilitation. | 4 |
| (f) If the exercise of eminent domain authority is to | 5 |
| acquire property for public ownership and private control and | 6 |
| for a public use, and if the primary purpose of the acquisition | 7 |
| is one of the purposes specified in item (iii) of this | 8 |
| subsection and the condemning authority elects to proceed under | 9 |
| this subsection, then the condemning authority must prove by a | 10 |
| preponderance of the evidence that: (i) the acquisition of the | 11 |
| property is necessary for a public purpose; (ii) the acquired | 12 |
| property will be owned by the condemning authority or another | 13 |
| governmental entity; and (iii) the acquired property will be | 14 |
| controlled by a private party that operates a
business or | 15 |
| facility related to the condemning authority's operation of a | 16 |
| university, medical district, hospital, exposition or | 17 |
| convention center, mass transportation facility, or airport,
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| including, but not limited to, a medical clinic, research and | 19 |
| development center, food or commercial concession facility, | 20 |
| social service facility, maintenance or storage facility, | 21 |
| cargo facility,
rental car facility, bus facility, taxi | 22 |
| facility, flight kitchen,
fixed based operation, parking | 23 |
| facility, refueling facility, water supply facility, and | 24 |
| railroad tracks and
stations. | 25 |
| (g) This Article is a limitation on the exercise of the | 26 |
| power of eminent domain, but is not an independent grant of | 27 |
| authority to exercise the power of eminent domain."; and | 28 |
| by replacing all of Section 10-5-60 with the following:
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| "(was 735 ILCS 5/7-121)
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| Section 10-5-60
7-121 . Value. Except as to property | 31 |
| designated as possessing a special use, the
fair cash market | 32 |
| value of property in a proceeding in eminent domain
shall be |
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| the amount of money that
which a purchaser, willing , but not
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| obligated , to buy the property, would pay to an owner willing ,
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| but not
obliged , to sell in a voluntary sale . , which | 4 |
| The amount of money shall be
determined and ascertained as | 5 |
| of the date of filing the complaint to
condemn , except that: | 6 |
| (i) in the case of property not being acquired under | 7 |
| Article 20 (quick-take), if the trial commences more than 2 | 8 |
| years after the date of filing the complaint to condemn, | 9 |
| the court may, in the interest of justice and equity, | 10 |
| declare a valuation date no sooner than the date of filing | 11 |
| the complaint to condemn and no later than the date of | 12 |
| commencement of the trial; and | 13 |
| (ii) in the case of property that is being acquired | 14 |
| under Article 20 (quick-take), if the trial commences more | 15 |
| than 2 years after the date of filing the complaint to | 16 |
| condemn, the court may, in the interest of justice and | 17 |
| equity, declare a valuation date no sooner than the date of | 18 |
| filing the complaint to condemn and no later than the date | 19 |
| on which the condemning authority took title to the | 20 |
| property . | 21 |
| In the condemnation of property for a public
improvement , | 22 |
| there shall be excluded from the fair cash market value of the | 23 |
| property
such amount of money
any
appreciation in value | 24 |
| proximately caused by the
such
improvement , and any
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| depreciation in value proximately caused by the
such | 26 |
| improvement. However,
such appreciation or depreciation shall | 27 |
| not be excluded
when
where property is condemned for a separate | 28 |
| project conceived
independently of and subsequent to the | 29 |
| original project. | 30 |
| (Source: P.A. 82-280.)"; and | 31 |
| by replacing all of Section 10-5-62 with the following:
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| "Section 10-5-62. Relocation costs. Except when federal |
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| funds are available for the payment of direct financial | 2 |
| assistance to persons displaced by the acquisition of their | 3 |
| real property, in all condemnation proceedings for the taking | 4 |
| or damaging of real property under the exercise of the power of | 5 |
| eminent domain, the condemning authority shall pay to displaced | 6 |
| persons reimbursement for their reasonable relocation costs, | 7 |
| determined in the same manner as under the federal Uniform | 8 |
| Relocation Assistance and Real Property Acquisition Policies | 9 |
| Act of 1970, as amended from time to time, and as implemented | 10 |
| by regulations promulgated under that Act. This Section does | 11 |
| not apply to the acquisition of property under the O'Hare | 12 |
| Modernization Act."; and
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| by replacing all of Section 10-5-105 with the following: | 14 |
| "Section 10-5-105. Sale of certain property acquired by | 15 |
| condemnation. | 16 |
| (a) This Section applies only to property that (i) has been | 17 |
| acquired after the effective date of this Act by condemnation | 18 |
| or threat of condemnation, (ii) was acquired for public | 19 |
| ownership and control by the condemning authority or another | 20 |
| public entity, and (iii) has been under the ownership and | 21 |
| control of the condemning authority or that other public entity | 22 |
| for a total of less than 5 years. | 23 |
| As used in this Section, "threat of condemnation" means | 24 |
| that the condemning authority has made an offer to purchase | 25 |
| property and has the authority to exercise the power of eminent | 26 |
| domain with respect to that property. | 27 |
| (b) Any governmental entity seeking to dispose of property | 28 |
| to which this Section applies must dispose of that property in | 29 |
| accordance with this Section, unless disposition of that | 30 |
| property is otherwise specifically authorized or prohibited by | 31 |
| law enacted by the General Assembly before, on, or after the | 32 |
| effective date of this Act. |
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| (c) The sale or public auction by the State of property to | 2 |
| which this Section applies must be conducted in the manner | 3 |
| provided in the State Property Control Act for the disposition | 4 |
| of surplus property. | 5 |
| (d) The sale or public auction by a municipality of | 6 |
| property to which this Section applies must be conducted in | 7 |
| accordance with Section 11-76-4.1 or 11-76-4.2 of the Illinois | 8 |
| Municipal Code. | 9 |
| (e) The sale or public auction by any other unit of local | 10 |
| government or school district or property to which this Section | 11 |
| applies must be conducted in accordance with this subsection | 12 |
| (e). The corporate
authorities of the the unit of local | 13 |
| government or school district, by resolution, may authorize the | 14 |
| sale or public
auction of
the property as surplus public real | 15 |
| estate. The value of the real estate shall be
determined by a | 16 |
| written MAI-certified appraisal or by a written certified
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| appraisal of a State-certified or State-licensed real estate | 18 |
| appraiser. The
appraisal shall be available for public | 19 |
| inspection. The resolution may direct
the sale to be conducted | 20 |
| by the staff of the unit of local government or school | 21 |
| district; by
listing
with local licensed real estate agencies, | 22 |
| in which case the terms of the
agent's compensation shall be | 23 |
| included in the resolution; or by public
auction. The | 24 |
| resolution
shall be published at the first opportunity | 25 |
| following its passage in a
newspaper or newspapers published in | 26 |
| the county or counties in which the unit of local government or | 27 |
| school district is located. The resolution
shall also contain | 28 |
| pertinent information concerning the size, use, and
zoning of | 29 |
| the real estate and the terms of sale. The corporate | 30 |
| authorities of the unit of local government or school district | 31 |
| may accept any contract proposal determined by them to be in | 32 |
| the best
interest of the unit of local government or school | 33 |
| district by a vote of two-thirds of
the
members of the | 34 |
| corporate authority of the unit of local government or school |
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| district then holding office, but in no event at a price
less
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| than 80% of the appraised value. | 3 |
| (f) This Section does not apply to the acquisition of | 4 |
| property under the O'Hare Modernization Act."; and | 5 |
| by replacing all of Section 10-5-110 with the following: | 6 |
| "Section 10-5-110. Offers of settlement by defendant; | 7 |
| attorney's fees and litigation expenses. | 8 |
| (a) This Section applies only to proceedings for the | 9 |
| acquisition of property for private ownership or control that | 10 |
| are subject to subsection (c), (d), (e), or (f) of Section | 11 |
| 5-5-5. | 12 |
| (b) At any time between (i) the close of discovery in | 13 |
| accordance with Supreme Court Rule 218(c), as now or hereafter | 14 |
| amended, or another date set by the court or agreed to by the | 15 |
| parties, and (ii) 14 days before the commencement of trial to | 16 |
| determine final just compensation, any defendant may serve upon | 17 |
| the plaintiff a written offer setting forth the amount of | 18 |
| compensation that the defendant will accept for the taking of | 19 |
| that defendant's interest in the property. If the defendant | 20 |
| does not make such an offer, the defendant shall not be | 21 |
| entitled to the attorney's fees and other reimbursement | 22 |
| provided under subsection (e) of this Section. | 23 |
| (c) If, within 10 days after service of the offer, the | 24 |
| plaintiff serves written notice upon that defendant that the | 25 |
| offer is accepted, then either of those parties may file a copy | 26 |
| of the offer and a copy of the notice of acceptance together | 27 |
| with proof of service of the notice. The court shall then enter | 28 |
| judgment. | 29 |
| (d) An offer that is not accepted within the 10-day period | 30 |
| is deemed to be withdrawn and evidence of the offer is not | 31 |
| admissible at trial. | 32 |
| (e) If a plaintiff does not accept an offer as provided in |
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| subsection (c) and if the final just compensation for the | 2 |
| defendant's interest is determined by the trier of fact to be | 3 |
| equal to or in excess of the amount of the defendant's last | 4 |
| written offer under subsection (b), then the court must order | 5 |
| the plaintiff to pay to the defendant that defendant's | 6 |
| attorney's fees as calculated under subsection (f) of this | 7 |
| Section. The plaintiff shall also pay to the defendant that | 8 |
| defendant's reasonable costs and litigation expenses, | 9 |
| including, without limitation, expert witness and appraisal | 10 |
| fees, incurred after the making of the defendant's last written | 11 |
| offer under subsection (b). | 12 |
| (f) Any award of attorney's fees under this Section shall | 13 |
| be based solely on the net benefit achieved for the property | 14 |
| owner, except that the court may also consider any non-monetary | 15 |
| benefits obtained for the property owner through the efforts of | 16 |
| the attorney to the extent that the non-monetary benefits are | 17 |
| specifically identified by the court and can be quantified by | 18 |
| the court with a reasonable degree of certainty. "Net benefit" | 19 |
| means the difference, exclusive of interest, between the final | 20 |
| judgment or settlement and the last written offer made by the | 21 |
| condemning authority before the filing date of the condemnation | 22 |
| complaint. The award shall be calculated as follows, subject to | 23 |
| the Illinois Rules of Professional Conduct: | 24 |
| (1) 33% of the net benefit if the net benefit is | 25 |
| $250,000 or less; | 26 |
| (2) 25% of the net benefit if the net benefit is more | 27 |
| than $250,000 but less than $1 million; or | 28 |
| (3) 20% of the net benefit if the net benefit is $1 | 29 |
| million or more. | 30 |
| (g) This Section does not apply to the acquisition of | 31 |
| property under the O'Hare Modernization Act. | 32 |
| Section 10-5-115. Eligible costs. Any cost required to be | 33 |
| paid by a condemning authority under this Act, including, but |
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| not limited to, relocation costs and attorney's fees, shall be | 2 |
| deemed a redevelopment project cost or eligible cost under the | 3 |
| statute pursuant to which the condemning authority exercised | 4 |
| its power of eminent domain, even if those costs are not | 5 |
| identified as such as of the effective date of this Act."; and | 6 |
| by replacing all of Section 90-5-5 with the following: | 7 |
| "Section 90-5-5. Applicability. This Act applies only to | 8 |
| complaints to condemn that are filed on or after its effective | 9 |
| date."; and | 10 |
| by replacing all of Section 99-5-5 with the following: | 11 |
| "Section 99-5-5. Effective date. This Act takes effect on | 12 |
| January 1, 2007.".
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|