New Eminent Domain Act in Illinois

By Sanford M. Stein and Katie Cunningham

On May 3, 2006, the Illinois General Assembly passed Senate Bill 3086 and created the Eminent Domain Act. If signed into law by Governor Blagojevich, the act, effective January 1, 2007, will only apply to condemnation complaints filed on or after that date. For purposes of this article, we have focused on the act’s treatment of blight. Please note that a thorough understanding of the act requires a comprehensive reading of the entire act.

Section 5-5-5(c)
If eminent domain authority is used to acquire property for private ownership and/or control, the condemning authority must prove by clear and convincing evidence that the acquisition is primarily for the benefit, use, or enjoyment of the public and necessary for a public purpose. However, if the primary purpose is eliminating blight, there is a rebuttable presumption that the acquisition is for a public purpose and for the benefit, use, or enjoyment of the public. A challenge as to the existence of blighting factors must be brought within six months after the date of the condemnation complaint.

Section 5-5-5(d)
If eminent domain authority is used to acquire property for private ownership and/or control where the primary basis is eliminating blight, the condemning authority must prove by a preponderance of the evidence that: (i) the acquisition is necessary for a public purpose; (ii) the property is located in a blighted or conservation area; and (iii) the condemning authority has entered into an express written agreement in which a private person or private entity agrees to develop the property, or the condemnation and proposed use of the property are consistent with a regional plan adopted within the past five years, or the property will be used in a project consistent with a comprehensive redevelopment plan and an enforceable written agreement or deed restriction will be executed and recorded to assure that the property use remains consistent with the redevelopment plan for at least 40 years.
If the existence of blighting factors is challenged within six months after the date of the condemnation complaint, the condemning authority must also prove, by a preponderance of the evidence, that the required blighting factors existed in the area at the time the area was designated as blighted or at any time thereafter. The existence of an ordinance or resolution designating an area as blighted is not prima facie evidence of blight.

In certain eminent domain proceedings, the act may require the payment of relocation costs, attorney’s fees, and other reimbursements. The act also provides the methods to determine the valuation date of condemned property. BFN

Sanford M. Stein and Katie Cunningham are attorneys with Gardner Carton & Douglas LLP.