FAQs about Eminent Domain and Condemnation in Illinois
Property Rights in the State of Illinois
The Illinois Constitution prohibits the taking or damaging of private property for a public use without payment of just compensation. While the power of eminent domain is vast, it is heavily regulated by statute in Illinois. The Illinois Eminent Domain Act applies to eminent domain proceedings in Illinois and provides procedural safeguards and requirements before a condemning authority can use the power of eminent domain to take private property in Illinois.
In addition to the payment of just compensation, the Illinois Eminent Domain Act provides two additional components of compensation to property owners: relocation benefits to individuals displaced by a condemnation and reimbursement of litigation expenses, costs, and attorneys’ fees in certain instances.
We’ve prepared this guide of frequently asked questions to help our clients understand the complexities of eminent domain & property rights in Illinois.
- Who Can Exercise Eminent Domain Laws?
The State of Illinois has the inherent power to acquire private property by eminent domain for a public use. All other political subdivisions or subordinate units of Illinois government, as distinguished from the State of Illinois, can exercise 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. The use of eminent domain is limited by the Article I, Section 15 of the Illinois Constitution and the Illinois Eminent Domain 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 legislature. Other than the various political subdivisions 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.
A few common entities that typically have the power to engage in eminent domain are:
- Illinois Department of Transportation (IDOT)
- Illinois State Toll Highway Authority (Illinois Tollway)
- Forest Preserve Districts
- Illinois Municipalities
- Illinois Counties
- School Districts
- Metropolitan Water Reclamation District of Greater Chicago (MWRD)
- Chicago Transit Authority (CTA)
- Park Districts
- Metropolitan Pier and Exposition Authority (MPEA)
- What Are the Legal Requirements for Exercising the Power of Eminent Domain?
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 condemnations other than those initiated by the State and its agencies, the condemning authority must have an enabling ordinance or resolution authorizing the use of eminent domain for the particular public purpose. Second, the use of eminent domain 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 condemning 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 condemnation proceedings.
- What Limitations or Defenses Exist for Protecting our Right to Private Property?
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 condemning authority’s right to acquire the property through the power of eminent domain. If a property owner is successful, the condemning authority’s lawsuit to condemn the property will be dismissed. Any of the allegations in the condemning authority’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 adequately described by the condemning authority.
- What Constitutes a Public Purpose?
The Illinois Constitution provides that private property shall not be taken or damaged for public use without the payment of just compensation. The phrase “public use” includes what one would typically consider to be for the public:
- New highways
- Road widenings
- Police and fire stations
- Government buildings
However, “public use” can also include railroads, 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. Just compensation means the fair cash market value of the property at its highest and best use on the date of value. It includes the value for the property taken and any diminution in value to the owner’s remaining property referred to as “damages to the remainder.”
- What is a Quick-Take Hearing?
In Illinois there is also a procedure called a “quick-take hearing.” The right to “quick-take” is provided by statute to some condemning 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 satisfying 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 continues, though, and at trial, the jury is not told the amount of preliminary compensation that was paid. If the verdict is more than the preliminary compensation, the condemning authority must pay the difference, including 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 purchaser, willing, but not obligated, to buy the property, would pay to an owner willing, 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 condemnation project for which the property is being taken.
- 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 Property Owner 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 recoverable 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.
Generally, there are four instances when a property owner is entitled to reimbursement 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.
- Second, when the condemning authority voluntarily dismisses its lawsuit or refuses to pay the just compensation award after final judgment within the time provided by court order.
- Third, if the condemning authority 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 condemnation of private property where the acquired property will be owned or controlled by a private entity, the Illinois Eminent Domain Act provides that a property owner may make a written offer of the amount of compensation that the property owner will accept for the property between the close of discovery and 14 days before the commencement of trial. 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:
- 33% of the net benefit if the net benefit is $250,000 or less;
- 25% of the net benefit if the net benefit is more than $250,000 but less than $1 million; or
- 20% of the net benefit if the net benefit is $1 million or more.