Bill Text: IL HB5897 | 2011-2012 | 97th General Assembly | Introduced

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Bill Title: 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.

Spectrum: Partisan Bill (Republican 2-0)

Status: (Failed) 2013-01-08 - Session Sine Die [HB5897 Detail]

Download: Illinois-2011-HB5897-Introduced.html

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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.
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A BILL FOR
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AN ACT concerning civil law.
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
Section 5. The Eminent Domain Act is amended by changing
Section 5-5-5 as follows:
(735 ILCS 30/5-5-5)
Sec. 5-5-5. Exercise of the power of eminent domain; public
use; blight.
(a) In addition to all other limitations and requirements,
a condemning authority may not take or damage property by the
exercise of the power of eminent domain unless it is for a
public use, as set forth in this Section.
(a-5) Subsections (b), (c), (d), (e), and (f) of this
Section do not apply to the acquisition of property under the
O'Hare Modernization Act. A condemning authority may exercise
the power of eminent domain for the acquisition or damaging of
property under the O'Hare Modernization Act as provided for by
law in effect prior to the effective date of this Act.
(a-10) Subsections (b), (c), (d), (e), and (f) of this
Section do not apply to the acquisition or damaging of property
in furtherance of the goals and objectives of an existing tax
increment allocation redevelopment plan. A condemning
authority may exercise the power of eminent domain for the

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acquisition of property in furtherance of an existing tax
increment allocation redevelopment plan as provided for by law
in effect prior to the effective date of this Act.
As used in this subsection, "existing tax increment
allocation redevelopment plan" means a redevelopment plan that
was adopted under the Tax Increment Allocation Redevelopment
Act (Article 11, Division 74.4 of the Illinois Municipal Code)
prior to April 15, 2006 and for which property assembly costs
were, before that date, included as a budget line item in the
plan or described in the narrative portion of the plan as part
of the redevelopment project, but does not include (i) any
additional area added to the redevelopment project area on or
after April 15, 2006, (ii) any subsequent extension of the
completion date of a redevelopment plan beyond the estimated
completion date established in that plan prior to April 15,
2006, (iii) any acquisition of property in a conservation area
for which the condemnation complaint is filed more than 12
years after the effective date of this Act, or (iv) any
acquisition of property in an industrial park conservation
area.
As used in this subsection, "conservation area" and
"industrial park conservation area" have the same meanings as
under Section 11-74.4-3 of the Illinois Municipal Code.
(a-15) In addition to all other limitations and
requirements, a condemning authority other than the State may
not take or damage property that is agricultural land by the

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exercise of the power of eminent domain for the establishment
of a greenway.
As used in this subsection (a-15):
"Agricultural land" means any property used solely for
the growing and harvesting of crops; for the feeding,
breeding and management of livestock; for dairying or for
any other agricultural or horticultural use or combination
thereof; including, but not limited to, hay, grain, fruit,
truck or vegetable crops, floriculture, mushroom growing,
plant or tree nurseries, orchards, forestry, sod farming
and greenhouses; the keeping, raising and feeding of
livestock or poultry, including dairying, poultry, swine,
sheep, beef cattle, ponies or horses, fur farming, bees,
fish and wildlife farming; and any property left fallow
near a river, stream, or creek for soil conservation or
other purpose related to any of the activities mentioned in
this definition.
"Greenway" means a corridor of undeveloped land along a
river, stream, or creek that is reserved for recreational
use or for environmental protection.
"Recreational use" includes, but is not limited to
hunting, fishing, boating, camping, picnicking, hiking,
biking, walking, horseback riding, pleasure driving,
nature study, water skiing, festivals, public gatherings
and visiting historical, archaeological, scenic or
scientific sites, or for any purpose, including but not

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limited to educational, vocational and religious
activities and assemblies.
(b) If the exercise of eminent domain authority is to
acquire property for public ownership and control, then the
condemning authority must prove that (i) the acquisition of the
property is necessary for a public purpose and (ii) the
acquired property will be owned and controlled by the
condemning authority or another governmental entity.
(c) Except when the acquisition is governed by subsection
(b) or is primarily for one of the purposes specified in
subsection (d), (e), or (f) and the condemning authority elects
to proceed under one of those subsections, if the exercise of
eminent domain authority is to acquire property for private
ownership or control, or both, then the condemning authority
must prove by clear and convincing evidence that the
acquisition of the property for private ownership or control is
(i) primarily for the benefit, use, or enjoyment of the public
and (ii) necessary for a public purpose.
An acquisition of property primarily for the purpose of the
elimination of blight is rebuttably presumed to be for a public
purpose and primarily for the benefit, use, or enjoyment of the
public under this subsection.
Any challenge to the existence of blighting factors alleged
in a complaint to condemn under this subsection shall be raised
within 6 months of the filing date of the complaint to condemn,
and if not raised within that time the right to challenge the

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existence of those blighting factors shall be deemed waived.
Evidence that the Illinois Commerce Commission has granted
a certificate or otherwise made a finding of public convenience
and necessity for an acquisition of property (or any right or
interest in property) for private ownership or control
(including, without limitation, an acquisition for which the
use of eminent domain is authorized under the Public Utilities
Act, the Telephone Company Act, or the Electric Supplier Act)
to be used for utility purposes creates a rebuttable
presumption that such acquisition of that property (or right or
interest in property) is (i) primarily for the benefit, use, or
enjoyment of the public and (ii) necessary for a public
purpose.
In the case of an acquisition of property (or any right or
interest in property) for private ownership or control to be
used for utility, pipeline, or railroad purposes for which no
certificate or finding of public convenience and necessity by
the Illinois Commerce Commission is required, evidence that the
acquisition is one for which the use of eminent domain is
authorized under one of the following laws creates a rebuttable
presumption that the acquisition of that property (or right or
interest in property) is (i) primarily for the benefit, use, or
enjoyment of the public and (ii) necessary for a public
purpose:
(1) the Public Utilities Act,
(2) the Telephone Company Act,

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(3) the Electric Supplier Act,
(4) the Railroad Terminal Authority Act,
(5) the Grand Avenue Railroad Relocation Authority
Act,
(6) the West Cook Railroad Relocation and Development
Authority Act,
(7) Section 4-505 of the Illinois Highway Code,
(8) Section 17 or 18 of the Railroad Incorporation Act,
(9) Section 18c-7501 of the Illinois Vehicle Code.
(d) If the exercise of eminent domain authority is to
acquire property for private ownership or control and if the
primary basis for the acquisition is the elimination of blight
and the condemning authority elects to proceed under this
subsection, then the condemning authority must: (i) prove by a
preponderance of the evidence that acquisition of the property
for private ownership or control is necessary for a public
purpose; (ii) prove by a preponderance of the evidence that the
property to be acquired is located in an area that is currently
designated as a blighted area or conservation area under an
applicable statute; (iii) if the existence of blight or
blighting factors is challenged in an appropriate motion filed
within 6 months after the date of filing of the complaint to
condemn, prove by a preponderance of the evidence that the
required blighting factors existed in the area so designated
(but not necessarily in the particular property to be acquired)
at the time of the designation under item (ii) or at any time

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thereafter; and (iv) prove by a preponderance of the evidence
at least one of the following:
(A) that it has entered into an express written
agreement in which a private person or entity agrees to
undertake a development project within the blighted area
that specifically details the reasons for which the
property or rights in that property are necessary for the
development project;
(B) that the exercise of eminent domain power and the
proposed use of the property by the condemning authority
are consistent with a regional plan that has been adopted
within the past 5 years in accordance with Section 5-14001
of the Counties Code or Section 11-12-6 of the Illinois
Municipal Code or with a local land resource management
plan adopted under Section 4 of the Local Land Resource
Management Planning Act; or
(C) that (1) the acquired property will be used in the
development of a project that is consistent with the land
uses set forth in a comprehensive redevelopment plan
prepared in accordance with the applicable statute
authorizing the condemning authority to exercise the power
of eminent domain and is consistent with the goals and
purposes of that comprehensive redevelopment plan, and (2)
an enforceable written agreement, deed restriction, or
similar encumbrance has been or will be executed and
recorded against the acquired property to assure that the

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project and the use of the property remain consistent with
those land uses, goals, and purposes for a period of at
least 40 years, which execution and recording shall be
included as a requirement in any final order entered in the
condemnation proceeding.
The existence of an ordinance, resolution, or other
official act designating an area as blighted is not prima facie
evidence of the existence of blight. A finding by the court in
a condemnation proceeding that a property or area has not been
proven to be blighted does not apply to any other case or
undermine the designation of a blighted area or conservation
area or the determination of the existence of blight for any
other purpose or under any other statute, including without
limitation under the Tax Increment Allocation Redevelopment
Act (Article 11, Division 74.4 of the Illinois Municipal Code).
Any challenge to the existence of blighting factors alleged
in a complaint to condemn under this subsection shall be raised
within 6 months of the filing date of the complaint to condemn,
and if not raised within that time the right to challenge the
existence of those blighting factors shall be deemed waived.
(e) If the exercise of eminent domain authority is to
acquire property for private ownership or control and if the
primary purpose of the acquisition is one of the purposes
specified in item (iii) of this subsection and the condemning
authority elects to proceed under this subsection, then the
condemning authority must prove by a preponderance of the

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evidence that: (i) the acquisition of the property is necessary
for a public purpose; (ii) an enforceable written agreement,
deed restriction, or similar encumbrance has been or will be
executed and recorded against the acquired property to assure
that the project and the use of the property remain consistent
with the applicable purpose specified in item (iii) of this
subsection for a period of at least 40 years, which execution
and recording shall be included as a requirement in any final
order entered in the condemnation proceeding; and (iii) the
acquired property will be one of the following:
(1) included in the project site for a residential
project, or a mixed-use project including residential
units, where not less than 20% of the residential units in
the project are made available, for at least 15 years, by
deed restriction, long-term lease, regulatory agreement,
extended use agreement, or a comparable recorded
encumbrance, to low-income households and very low-income
households, as defined in Section 3 of the Illinois
Affordable Housing Act;
(2) used primarily for public airport, road, parking,
or mass transportation purposes and sold or leased to a
private party in a sale-leaseback, lease-leaseback, or
similar structured financing;
(3) owned or used by a public utility or electric
cooperative for utility purposes;
(4) owned or used by a railroad for passenger or

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freight transportation purposes;
(5) sold or leased to a private party that operates a
water supply, waste water, recycling, waste disposal,
waste-to-energy, or similar facility;
(6) sold or leased to a not-for-profit corporation
whose purposes include the preservation of open space, the
operation of park space, and similar public purposes;
(7) used as a library, museum, or related facility, or
as infrastructure related to such a facility;
(8) used by a private party for the operation of a
charter school open to the general public; or
(9) a historic resource, as defined in Section 3 of the
Illinois State Agency Historic Resources Preservation Act,
a landmark designated as such under a local ordinance, or a
contributing structure within a local landmark district
listed on the National Register of Historic Places, that is
being acquired for purposes of preservation or
rehabilitation.
(f) If the exercise of eminent domain authority is to
acquire property for public ownership and private control and
if the primary purpose of the acquisition is one of the
purposes specified in item (iii) of this subsection and the
condemning authority elects to proceed under this subsection,
then the condemning authority must prove by a preponderance of
the evidence that: (i) the acquisition of the property is
necessary for a public purpose; (ii) the acquired property will

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be owned by the condemning authority or another governmental
entity; and (iii) the acquired property will be controlled by a
private party that operates a business or facility related to
the condemning authority's operation of a university, medical
district, hospital, exposition or convention center, mass
transportation facility, or airport, including, but not
limited to, a medical clinic, research and development center,
food or commercial concession facility, social service
facility, maintenance or storage facility, cargo facility,
rental car facility, bus facility, taxi facility, flight
kitchen, fixed based operation, parking facility, refueling
facility, water supply facility, and railroad tracks and
stations.
(g) This Article is a limitation on the exercise of the
power of eminent domain, but is not an independent grant of
authority to exercise the power of eminent domain.
(Source: P.A. 94-1055, eff. 1-1-07.)
Section 99. Effective date. This Act takes effect upon
becoming law.