Chicago Codes
Illinois taking steps to avoid Kelo

Bill would raise bar on taking land
By Brian Mackey
Law Bulletin staff writer

SPRINGFIELD - State and local government would face new restrictions on eminent domain under legislation approved Wednesday by a committee of the Illinois Senate.

The proposal, which has bipartisan support, is a response to last year's controversial U.S. Supreme Court decision in Kelo v. City of New London, 126 U.S. 326 (2005), which approved a public body's right to condemn property for the use of a private developer.

Senate Bill 3086 would, among other things, forbid the taking of property for private development unless an area is '"blighted." It also requires governments to prove an area is blighted based upon a preponderance of the evidence, and warns that simply passing an ordinance designating an area as blighted is not prima facie evidence of blight.

To discourage government delays, the value of property would be determined 180 days before the beginning of a condemnation trial if that trial takes place more than one year after proceedings began. Currently, fair market value is based on the date a condemnation complaint was filed.

The legislation would also allow homeowners displaced for private development to recover relocation costs for themselves and their small business or farm.

Though the Senate Judiciary Committee approved SB 3086 on a bipartisan vote of 9-2, municipalities were vehemently opposed to the legislation.

Elliott Hartstein, the village president of Buffalo Grove, represented several municipal groups before the committee: "There is no urgency. There is no reason why people are not protected. They are protected currently under the case law."

Hartstein said the 2002 Illinois Supreme Court decision in Southwestern Illinois Development Authority v. National City Environmental LLC, 199 Ill.2d 225, commonly known as SWIDA, gave landowners all of the protection they needed. Hartstein said that descriptions of the legislation as "balancing the playing field" were inappropriate.

"This bill, contrary to balancing the playing field, is basically turning the playing field upside down and trying to balance this particular issue on the backs of our taxpayers and our communities and your constituents," Hartstein told the lawmakers.

Hartstein said that he was concerned about several aspects of the legislation, including the 180-days-before-trial valuation date. That, Hartstein said, was an incentive for landowners to delay proceedings to increase the amount of compensation they would receive for their property.

But Sen. Edward F. Petka, a Plainfield Republican, said he thought the new valuation date would encourage government to resolve condemnation cases quickly.

"Having a valuation date that is three and four years from the trial is inherently unfair to the landowner," Petka said. But Hartstein said the legislation would shift the nature of condemnation proceedings, adding that the burden should be on the challenger, not the municipality.

SB 3086 now goes to the full Senate. Click here to see the full bill.