[ Search ] [ Legislation ] [ Bill Summary ]
[ Home ] [ Back ] [ Bottom ]
90_HB0212
New Act
Creates the Property Rights Preservation Law and the
Relief for Diminished Property Value Law. Requires the
Attorney General to develop and provide to State and local
agencies guidelines to assist in identifying and evaluating
State and local government actions that may result in the
taking of private property such that compensation to the
property owner is required under the Illinois or United
States constitution. Requires State and local agencies to
assess whether a government action may result in such a
taking of private property. Provides a cause of action for
property owners and provides for enforcement by the Attorney
General. Provides a cause of action for damages for a
property owner whose property is diminished in value by 50%
or more by application of a statute, ordinance, regulation,
or policy or by denial of a permit or other governmental
authorization. Provides for a civil action to invalidate a
statute, ordinance, regulation, or policy or a provision of a
permit or other governmental authorization that does not
substantially advance its stated governmental purpose.
LRB9001284DJcd
LRB9001284DJcd
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.
7 Section 5-5. State policy; purpose.
8 (a) It is the policy of this State that no private
9 property may be taken for public use by governmental action
10 without payment of just compensation, in accordance with the
11 meaning ascribed to these concepts by the United States
12 Supreme Court and the Supreme Court of this State.
13 (b) The purpose of this Law is to require State
14 agencies, guided and overseen by the Attorney General, to
15 evaluate proposed government actions that may result in a
16 constitutional taking of private property in order to avoid
17 unnecessary burdens on the public treasury and unwarranted
18 interference with private property rights. It is not the
19 purpose of this Law to affect the scope of private property
20 protections afforded by the United States Constitution or the
21 Illinois Constitution.
22 Section 5-10. Definitions. In this Law:
23 "Constitutional taking" or "taking" means the taking of
24 private property by government action such that compensation
25 to the owner of that property is required under either the
26 Illinois Constitution or the Fifth or Fourteenth Amendment to
27 the United States Constitution.
28 "Government action" means any of the following:
29 (1) Existing or proposed rules or regulations that,
-2- LRB9001284DJcd
1 if adopted or enforced, may limit the use of private
2 property.
3 (2) Existing or proposed conditions, requirements,
4 or limitations on the use of private property contained
5 in licenses or permits.
6 (3) Required dedications or exactions of private
7 property.
8 "Government action" does not include any of the
9 following:
10 (4) The formal exercise of the power of eminent
11 domain.
12 (5) The forfeiture or seizure of private property
13 by law enforcement agencies as evidence of a crime or for
14 a violation of law.
15 (6) Orders issued by a State agency or court of law
16 that result from a violation of law and that are
17 authorized by statute.
18 (7) The discontinuance of government programs.
19 "State agency" means the State of Illinois and any
20 officer, agency, board, commission, department, or similar
21 body of the executive branch of State government and also
22 means any unit of local government or school district or any
23 agency of a unit of local government or school district.
24 Section 5-15. Attorney General; guidelines for
25 determining takings.
26 (a) The Attorney General shall develop and provide to
27 State agencies guidelines to assist in identifying and
28 evaluating government actions that may result in a
29 constitutional taking. The Attorney General shall base the
30 guidelines on current law as articulated by the United States
31 Supreme Court and the Supreme Court of Illinois and shall
32 update the guidelines at least once each year to take account
33 of changes in the law.
-3- LRB9001284DJcd
1 (b) In developing the guidelines, and subject to the
2 provisions of subsection (a), the Attorney General shall
3 observe the following principles:
4 (1) Government actions that result in a physical
5 invasion or occupancy of private property or that
6 decrease the value or limit the use of property may
7 constitute a taking.
8 (2) Government action may amount to a taking even
9 though it constitutes less than a complete deprivation of
10 all use or value of all separate and distinct interests
11 in the same private property or even though the action is
12 only temporary in nature.
13 (3) The mere assertion of a public purpose is
14 insufficient to avoid a taking. Government actions to
15 protect the public health and safety or to otherwise
16 further the public interest should be taken only in
17 response to real and substantial public needs and shall
18 be designed to significantly address those needs.
19 (4) Although normal government processes do not
20 ordinarily constitute takings, an undue delay in decision
21 making that interferes with private property use may be a
22 taking. In addition, a delay in processing may increase
23 significantly the amount of compensation due if a
24 constitutional taking is later found to have occurred.
25 (5) The constitutional protections against taking
26 private property are self-executing and require
27 compensation regardless of whether the underlying
28 authority for the action contemplated a taking or
29 authorized the payment of compensation for a taking.
30 Section 5-20. Designation of responsible official. The
31 Attorney General shall designate an official within the
32 office of the Attorney General who shall be responsible for
33 ensuring compliance with this Law.
-4- LRB9001284DJcd
1 Section 5-25. Takings assessment by State agency.
2 Before a State agency takes any government action, the agency
3 shall prepare a written assessment of the constitutional
4 takings implications of that action, in compliance with the
5 guidelines developed under Section 5-15. The agency shall
6 deliver copies of this assessment to the Governor, the
7 appropriate financial management authority, and the Attorney
8 General. The agency's assessment shall do all of the
9 following:
10 (1) Assess the likelihood that the government
11 action may result in a constitutional taking.
12 (2) Clearly and specifically identify the purpose
13 of the government action.
14 (3) Explain why the government action is necessary
15 substantially to advance that purpose and why no
16 alternative action is available that would achieve the
17 agency's goals while reducing the impact on the private
18 property owner.
19 (4) Estimate the potential costs to the government
20 if a court determines that the action constitutes a
21 constitutional taking.
22 (5) Identify the source of payment within the
23 agency's budget for any compensation that may be ordered.
24 (6) Certify that the benefits of the government
25 action exceed the estimated compensation costs.
26 Section 5-30. Emergency action. If there is an
27 immediate threat to public health and safety that constitutes
28 an emergency and requires an immediate response, the takings
29 assessment required by Section 5-25 may be made when the
30 response is completed.
31 Section 5-35. Cause of action.
32 (a) An aggrieved property owner has a cause of action
-5- LRB9001284DJcd
1 against a State agency that violates this Law for
2 compensatory damages, a writ of mandamus or prohibition, or
3 other appropriate legal or equitable relief.
4 (b) The Attorney General may bring an action to enforce
5 compliance with this Law.
6 Section 5-40. Attorney's fees and costs. An owner of
7 private property who successfully establishes that a
8 government action is a constitutional taking of the owner's
9 property requiring payment of just compensation shall be
10 awarded his or her reasonable attorney's fees and costs
11 incurred in establishing that claim, in addition to other
12 remedies provided by law.
13 Section 5-45. Source of compensation. Any award made to
14 an owner of private property from a State agency for a
15 constitutional taking, including any award of attorney's fees
16 and costs, shall come from the agency's existing budget
17 unless the agency has previously disclosed an estimate of the
18 costs to the appropriate financial management authority and
19 moneys were included in the budget for that purpose.
20 Section 5-50. Valuation of property. If a government
21 action is a constitutional taking, the effect of that
22 government action on the fair market value of the private
23 property taken shall be reflected in the assessed valuation
24 of the property for taxes, levies, and similar purposes.
25 ARTICLE 10.
26 Section 10-1. Short title. This Article may be cited as
27 the Relief for Diminished Property Value Law.
28 Section 10-5. Definitions. In this Law:
-6- LRB9001284DJcd
1 "Diminution in value of 50% or more" means a reduction of
2 50% or more in the fair market value of property subject to a
3 statute, ordinance, regulation, rule, guideline, or policy or
4 subject to the denial of a permit, license, authorization, or
5 other governmental permission.
6 "Owner" means (i) the owner of property at the time a
7 statute, regulation, rule, guideline, or policy was enacted
8 or adopted or (ii) the owner of property at the time a
9 permit, license, authorization, or other governmental
10 permission was denied.
11 Section 10-10. Diminution in property value; cause of
12 action.
13 (a) The owner of any property may file a civil action
14 against the State or a unit of local government whenever the
15 application of a statute, ordinance, regulation, rule,
16 permit, license, authorization, or other governmental
17 permission of any kind by the State or a unit of local
18 government causes a diminution in value of the property of
19 50% or more.
20 (b) A civil action under subsection (a) may be filed in
21 the circuit court in the county in which the property is
22 located, which shall have exclusive jurisdiction of the
23 claim, and the owner may either (i) recover a sum equal to
24 the diminution in value of the property and retain title to
25 the property or (ii) recover the entire fair market value of
26 the property prior to the diminution in value of 50% or more
27 and transfer title to the property to the State or unit of
28 local government upon payment of the fair market value of the
29 property. If the statute, ordinance, regulation, rule,
30 guideline, or policy is rescinded, or if the permit, license,
31 authorization, or other governmental permission is granted,
32 prior to final judgment, then the owner is entitled to
33 recover in the pending action his or her other reasonable and
-7- LRB9001284DJcd
1 necessary costs of the action incurred before that rescission
2 or grant, together with any economic losses sustained by
3 reason of the acts giving rise to the diminution in value.
4 (c) No compensation is required under this Law if the
5 owner's use or proposed use of the property amounts to a
6 public nuisance as commonly understood and defined by
7 principles of nuisance and property law. The State or unit
8 of local government bears the burden of proof with respect to
9 this affirmative defense.
10 Section 10-15. Invalidation of statute, rule, or
11 condition.
12 (a) For purposes of this Section, "person" means a
13 person or persons having an interest that is or may be
14 adversely affected by a statute, ordinance, regulation, rule,
15 guideline, or policy or by a provision or condition of a
16 permit, authorization, or other governmental permission.
17 (b) A person may commence a civil action on his or her
18 own behalf against the State or a unit of local government to
19 invalidate any statute, ordinance, regulation, rule,
20 guideline, or policy, or to invalidate a provision or
21 condition of a permit, authorization, or other governmental
22 permission, that does not substantially advance its stated
23 governmental purpose. The circuit court has exclusive
24 jurisdiction over actions brought under this Section. An
25 action under this Section may be pleaded in the alternative
26 in a complaint pleading a cause of action authorized under
27 Section 10-10.
28 (c) An action under this Section is ripe for
29 adjudication upon the enactment or adoption of the statute,
30 ordinance, regulation, rule, guideline, or policy or upon the
31 imposition of the provision or condition of the permit,
32 authorization, or other governmental permission against any
33 parcel of property.
-8- LRB9001284DJcd
1 Section 10-20. Application of Law; statute of
2 limitation.
3 (a) This Law applies to statutes, ordinances,
4 regulations, rules, guidelines, policies, and the provisions
5 or conditions of any permit, authorization, or other
6 governmental permission in effect on or after the effective
7 date of this Law.
8 (b) An action may not be brought under this Law more
9 than 6 years after (i) the enactment or adoption of the
10 statute, regulation, rule, guideline, or policy or (ii) the
11 denial by the State or a unit of local government of the
12 permit, license, authorization, or other governmental
13 permission upon which the action is based.
14 Section 10-25. Award of costs. In issuing a final order
15 in an action brought under this Law the court shall award
16 costs of litigation (including reasonable attorney's fees and
17 expert witness's fees) to a plaintiff who prevails or
18 substantially prevails.
19 Section 10-30. Constitutional or statutory rights not
20 restricted. Nothing in this Law restricts any remedy or
21 right that a person or class of persons may have under any
22 provision of the Illinois Constitution or United States
23 Constitution or under any law of Illinois or the United
24 States.