Illinois' Eminent Domain Laws and Property Rights

The following responses are intended to provide general information about eminent domain laws in the featured state. Such information does not constitute legal advice. Anyone interested in learning more about eminent domain law and the impact it may have on a given set of facts should consult with an OCA attorney or another attorney experienced in handling eminent domain cases.

• Who Can Exercise Eminent Domain Laws?

  As a sovereign, the State of Illinois has the inherent power to acquire private prop-erty by eminent domain for a public use. All other political subdivisions or subordi-nate units of Illinois government, as distinguished from the State of Illinois, can ex-ercise the power of eminent domain only when specifically granted that power by state statute from the Illinois General Assembly. The only exception is home rule municipalities in Illinois, which derive their power to use eminent domain from the Illinois Constitution in Article 7, Section 6. Regardless of the source of the power of eminent domain, every state, including Illinois, may place restrictions on the exer-cise of the eminent domain power. In Illinois, the use of eminent domain is limited by the Article I, Section 15 of the Illinois Constitution and the Illinois Eminent Do-main Act (735 ILCS 30/1-1-1 et seq), which regulates and restricts the use of the eminent domain in Illinois. Therefore, all condemning authorities using the power of eminent domain in Illinois are limited by the statutory provisions of the Illinois Eminent Domain Act.
  
  For ease of reference, the Illinois Eminent Domain Act lists the various government units that have been delegated the power of eminent domain from the Illinois legis-lature. 735 ILCS 30/15-5-1 through 15-5-47. Other than the various political subdi-visions and units of local government, the State of Illinois has also granted the power to condemn private property by eminent domain to public utility companies for the construction of certain utility improvements. 220 ILCS 5/8-509.

• What Are the Legal Requirements for Exercising the Power?

  Generally, in Illinois there are five basic requirements for exercising the power of eminent domain. First, the condemning authority must have the legal authority to use the power of eminent domain. This means that there must be specific statutory authority to acquire private property by eminent domain. In addition, for all con-demnations other than those initiated by the State and its agencies, the condemn-ing authority must have an enabling ordinance or resolution authorizing the use of eminent domain for the particular public purpose. Second, the use of eminent do-main must be for a public purpose. Third, the condemnation of private property must be “necessary” for the public purpose. Fourth, the condemning authority must adequately describe the private property it seeks to acquire. Finally, the condemn-ing authority must attempt to agree on the amount of compensation for the property prior to initiating any court proceedings to take the property by eminent domain. In Illinois, this “attempt to agree” requires the condemning authority to undertake “good faith negotiations” with the private property owner before filing any condem-nation proceedings.

• What Limitations or Defenses Exist?

  In Illinois, once the condemning authority files its lawsuit to condemn the property by eminent domain, a property owner may file a “traverse” to challenge the con-demning authority’s right to acquire the property through the power of eminent do-main. If a property owner is successful, the condemning authority’s lawsuit to con-demn the property will be dismissed. Any of the allegations in the condemning au-thority’s complaint for condemnation can provide a basis for the traverse, which can include: whether legal authority exists to take the property by eminent domain; whether the taking is for a public purpose; whether the taking is necessary for the public purpose; whether the condemning authority made a bona fide attempt to agree on compensation before filing the lawsuit; and whether the property was ad-equately described by the condemning authority.

• What Constitutes a Public Purpose?

  The Illinois Constitution provides that private property shall not be taken or dam-aged for public use without the payment of just compensation. Ill. Const., art. I, §15. The phrase “public use” includes what one would typically consider to be for the public: new highways, road widenings, parks, schools, police and fire stations, government buildings, and airports. However, “public use” can also include rail-roads, public utilities, the elimination of blight in a designated redevelopment area, and in some limited cases substitute property.

• How is Just Compensation Determined?

  Property owners have the right to a jury trial in Illinois to determine the amount of just compensation. Ill. Const., art. I, §15. Just compensation means the fair cash market value of the property at its highest and best use on the date of value. It in-cludes the value for the property taken and any diminution in value to the owner’s remaining property referred to as “damages to the remainder.”
  
  In Illinois there is also a procedure called a “quick-take hearing.” See 735 ILCS 30/20-5-5 et seq. The right to “quick-take” is provided by statute to some con-demning authorities, and it gives those public bodies the right to obtain title and possession to the condemned property in an expedited manner. In addition to sat-isfying the legal requirements for exercising the power of eminent domain, the condemning authority must show an immediate need for the property and during the “quick-take hearing” the court (judge) determines the amount of preliminary just compensation that is due the property owner. Upon payment of that amount, the condemning authority gets title and possession to the property. The case contin-ues, though, and at trial, the jury is not told the amount of preliminary compensa-tion that was paid. See 735 ILCS 30/20-5-10. If the verdict is more than the pre-liminary compensation, the condemning authority must pay the difference, includ-ing interest. If the verdict is less, the owner must refund the difference.

• How Is Fair Market Value Defined?

  Under Illinois law, “fair market value” is defined as the amount of money that a pur-chaser, willing, but not obligated, to buy the property, would pay to an owner will-ing, but not obliged, to sell in a voluntary sale. The fair cash market value of the property must exclude any appreciation or depreciation in value proximately caused by the project for which the property is being taken. See 735 ILCS 30/10-5-60.

• What About Recovering Damages to Remaining Property

  In Illinois, when only part of a property is condemned, just compensation includes the diminution in value (e.g. damages) to the owner’s remaining property, if any. The property owner should file a counterclaim alleging damages to the remainder. Then, at trial, in addition to determining the value of the property taken, the jury will also determine whether the remainder has been damaged by the taking, and if so, the extent of that damage.

• Is the Landowner Entitled to Recover Reasonable Attorney Fees? Expert Fees? Litigation Costs?

  The reimbursement of costs, litigation expenses, and attorney’s fees is a matter of legislative grace, not constitutional entitlement. The Illinois Constitution, Article I, Section 15 provides, “Private property shall not be taken or damaged for public use without just compensation as provided by law.” Illinois courts have interpreted the phrase “as provided by law” to mean that attorney fees and costs are not recovera-ble from the condemning authority unless specifically authorized by statute. These costs and fees are not automatic; rather, the property owner must petition the court for an order awarding payment of costs and fees recoverable under statute. 735 ILCS 30/10-5-70.
  
  Generally, there are four instances when a property owner is entitled to reim-bursement of attorneys’ fees, litigation expenses, and costs from the condemning authority. First, when a court rules that the condemning authority does not have the right to acquire the property by eminent domain. 735 ILCS 30/10-5-70(a), 735 ILCS 30/20-5-45. Second, when the condemning authority voluntarily dismisses its law-suit or refuses to pay the just compensation award after final judgment within the time provided by court order. 735 ILCS 30/10-5-70(a). Third, if the condemning au-thority changes the amount of property it needs to condemn after filing its eminent domain lawsuit, for example adding new property or substituting other property for that originally described in the complaint for condemnation, the property owner is entitled to reimbursement of reasonable attorneys’ fees, litigation expenses, and costs in defending the original complaint. Lastly, in cases involving the condemna-tion of private property where the acquired property will be owned or controlled by a private entity (735 ILCS 30-5-5-5(c) -30/5-5-5(f)), the Illinois Eminent Domain Act provides that a property owner may make a written offer of the amount of compen-sation that the property owner will accept for the property between the close of dis-covery and 14 days before the commencement of trial. 735 ILCS 30/10-5-110. If the condemning authority does not accept the offer and the final just compensation award determined by the trier of fact is equal to or in excess of the written offer, then the property owner is entitled to reasonable costs and litigation expenses as well as attorneys’ fees calculated as follows:
  
  (1) 33% of the net benefit if the net benefit is $250,000 or less;
  (2) 25% of the net benefit if the net benefit is more than $250,000 but less than $1 million; or
  (3) 20% of the net benefit if the net benefit is $1 million or more. 735 ILCS 30/10-5-110.