Chicago Codes
New Eminent Domain Laws Protect Property Owners

The Equity in Eminent Domain Act [Act] was passed by the General Assembly, PA 94-1055 and then signed by the Governor July 28, 2006. It becomes effective January 1, 2007 and will be codified at 735 ILCS 30/1-1-1 et seq.

The Act was a reaction to the Kelo decision by the U.S. Supreme Court in which the court approved a public body's right to condemn property for the use of a private developer.

The most significant change in the new Illinois Act is that governmental entities no longer receive a presumption that their takings are just. Instead, there is a sliding scale for determining when a taking is proper. The more private the purpose of the taking the higher the burden on the governmental entity to show the taking is proper. There are five categories of takings under the Act and if the taking falls into more than one category the condemning authority can choose which category to apply.

1. Public Ownership and Control. There is no change in the taking process when the governmental entity is taking property for public ownership and control. Examples would include acquiring property to build schools, improve or widen roads, or other necessary functions. In these takings, the condemning entity need only show that the taking is for the public purpose and there is legislative authority to take.

2. Private Ownership or Control. When the taking involves a private interest the Act requires the condemning entity to show by clear and convincing evidence that the taking was primarily for the benefit, use or enjoyment of the public and necessary. This strict standard is meant to prevent replacing a Motel 6 with a Ritz-Carlton as suggested by the dissenting opinion in the Kelo decision.

3. Eliminating Blight. The Act new provisions apply only to newly created blighted or extended blighted areas. Condemning entities must show the necessity of the taking and demonstrate the existence of blighting factors by a preponderance of evidence if property owners challenge the existence of the factors. Blighting factors include dilapidation, obsolescence or deterioration. A final requirement for blight takings is to show a) the taking is pursuant to a local or county plan or code; b) an agreement with a private developer identifying the specific reasons the taking is necessary for the development project; or c) there is a comprehensive redevelopment plan authorizing the condemning entity to exercise the power of eminent domain and a 40 year deed is entered to ensure the property use remains consistent with the plan. This standard would also apply with designating conservation areas.

4. Private Ownership or Control but Public Use. When a governmental entity privatizes certain public operations, such as leasing the Skyway, they must show it is necessary and record a 40 year deed restricting use of the property to it current use. There are nine types of public functions that apply to this category: public housing; airports, roads, parking and mass transportation facilities; utilities; railroads; water supply, recycling, or waste disposal facilities; park space; libraries or museums; charter schools; and landmarks.

5. Public Ownership and Private Use. Recognizing the governmental entity need to have private entities support certain public functions, such as hotels for convention centers, the Act allows takings for this purpose where the condemning entity shows merely be a preponderance of the evidence that the taking is necessary, it will be publicly owned though privately controlled and it will serve one of the functions listed in the Act.

The Act also provides property owners three new protections when their property is the subject of takings. Now property owners may receive relocation costs, a change in the valuation date of the property and under certain circumstances attorneys fees.