It occurs to me that Illinois property owners are not defenseless pawns in any land grab by eminent domain (by any name.) I am sure we are all aware of the unfortunate Supreme Court decision that allowed a local government to seize homes to build a corporate park, calling this a "public use" that was allowed to increase tax revenue. I believe what they were saying was that there was no statute against it. But I recall in news coverage of the time that many states DO have such stricter protective statutes, and that Illinois is one of them. Do we have a lawyer amongst us who could comment? I also know by informed report that there are some VERY tough eminent domain defense attorneys in Cook County. Of course it may be that the village government does not intend to go after anyone's property against their will.
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Legal defenses against eminent domain
(19 posts)-
Posted Friday Dec 15, 2006 10:21 #
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Of course it may be that the village government does not intend to go after anyone's property against their will.
Catherine, President Wiaduck said as much at the Nov 21st meeting, and previously that week. I would guess it's in the meeting minutes. I think everyone would feel better having it in writing though, rather than just a verbal statement of intent. The only thing in writing now is in the redevelopment plan where specific properties are identified as being potential targets.
Posted Friday Dec 15, 2006 10:27 # -
Yes, I know Chris. But he will not be President forever. And the Village Manager, with all due respect, is prone to repeating the Village government's sovereign right to use eminent domain. I believe that Illinois' understanding of "public use" may be much stricter than we presently understand. I know there are local attorneys who will ensure just compensation, but that does not help those who do not want to be displaced. I don't mind just compensation, but I know some elderly people in the area who mind very much.
Posted Friday Dec 15, 2006 10:35 # -
One of my favorite sayings is from Mark Twain, who said,
'An untried virtue is not a virtue.'
The Village Presidente has said that the village would not do the deal [with a developer] if someone [a homeowner] did not want to sell.
What if the deal was some big multimillion dollar deal? I would imagine that it would be mighty tempting...
mike
Posted Saturday Dec 16, 2006 00:56 # -
Here is a new Illinois law effective 1/1/07 that purports to restrict the flinging about of the terms blighted, conservation, public use, etc. I am still reading it.
Posted Monday Dec 18, 2006 16:06 # -
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.
This and many online summaries of the law appear to conflate "blighted" and "conservation." The point is that the elements cannot be simply declared to be present, but must be proved to a significant degree that the elements are indeed present.
Posted Monday Dec 18, 2006 16:40 # -
Fantastic. Thanks for the article. Hopefully this alleviates everyone's concerns about the Villages ability to take peoples homes via Emminent Domain. I believe the Village Board when they say that strategy is not in the cards. Does this change your mind about the TIF?
Posted Monday Dec 18, 2006 16:48 # -
No. Frankly I am not worried about getting my money, as I am relentless, and I don't mind moving elsewhere in Riverside. I just didn't want the hassle. I am not convinced by your arguments, I base my expectations of the future on the ugly buildings that have gone up, I do not trust the Board, and the objections of others give me pause. And, believe it or not, I do not like any government terrorizing widows(one in my building) and other homeowners by putting their addresses on a "hit list" and damaging their property values by erecting 4 story garages across the street from them. I should not have to be digging up the law on eminent domain; it is for the Board to reassure citizens and build trust by advising them of their rights and not just their verbally expressed good intentions.
Posted Monday Dec 18, 2006 16:57 # -
Ugly buildings that have gone up? Can you tell me which ones? As a follow up, can you tell me which ugly buildings have gone up as a result of the TIF?
Posted Monday Dec 18, 2006 17:06 # -
By the way, Corbi, we would still have to take the village government to court to make them prove their case, if they were unwise enough to persist.
Ugly: Village Common, Delaplaine Crossing, new condos in NR in Ames district and in national historic district, condos on Quincy on train. Don't get me started on the single family homes. No building has gone up under the TIF and mayhaps none will.
Posted Monday Dec 18, 2006 17:19 #
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