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"The
Exercise of Home Rule Eminent Domain Power for Redevelopment
Purposes"
By Barry A. Springer
Illinois Municipal Review, April, 1992
The courts in Illinois have ruled that municipal
redevelopment is a proper exercise of home rule power, as it
is a matter of local concern and it generally pertains to
the government and affairs of that municipality. To achieve
such redevelopment, municipalities typically acquire and
clear the land that was designated by the municipality as in
need of redevelopment in the first place. It is this
clearance of that land, designated as substandard (pursuant
to clear standards, usually set forth by state law) that is
the public purpose, giving rise to the exercise of eminent
domain power. Illinois courts have accordingly ruled that
home rule exercise of eminent domain power toward
redevelopment is also proper. However, in the exercise of
these activities and powers, the property owner must be
afforded due process of law.
One such case that illustrates these principles is the recent case
of City of Wheaton v. Sandberg, 574 N.E. 2d 697 (2nd
District Illinois Appellate Court, 1991). In that case, the
City passed an ordinance, pursuant to home rule power,
enabling it to determine whether a particular area or parcel
of land was in need of redevelopment, after which it could
designate the area for redevelopment and acquire that land
by condemnation. Subsequently, the City passed two more
ordinances, which so designated the downtown central
business district and authorized acquisition of the owners'
property, finding that the property had been vacant for over
twelve years and thus created an adverse aesthetic and
economic impact on the central business district. The City
thereafter filed suit to condemn the property, and the
owners contested this by filing a motion to dismiss and
traverse. After hearing, the trial court ruled that the City
had properly designated the area and that the property
qualified for redevelopment within the meaning of the City's
ordinance, and denied the traverse. The owners appealed,
contending that the City exceeded home rule power in
adopting the ordinance enabling the condemnation, that the
City's ordinance was invalid because it was preempted by
state law and alternatively, that it was unconstitutional as
being unreasonable, arbitrary and vague.
In denying the preemption claim, the appellate court noted that the
City derived home-rule powers from the 1970 Illinois
constitution, which allowed a municipality to exercise any
power and perform any function pertaining to its government
and affairs, except as limited by the home-rule section of
the Illinois constitution. The court noted that said section
provided that home-rule municipalities may perform
concurrently with the State, any power or function of a
home-rule unit, to the extent that the general assembly by
law did not specifically limit such exercise or specifically
declare the State's exercise to be exclusive, and that the
Illinois Constitution specifically provided that home-rule
powers should be construed liberally.
The court then confirmed that the exercise of eminent domain power
by a home-rule municipality to eliminate blight and
redevelop was of local concern, and accordingly, a valid
exercise of home-rule power. The court disagreed with the
owners' claim that the Commercial Renewal and Redevelopment
Areas Act (Ill. Rev.Stat. ch. 24, sec. 11-74.2-1 et seq.)
specifically limited or declared exclusive power of
redevelopment on the part of the state and found that the
legislature had not limited or preempted the exercise of
eminent domain power in a situation such as in the one under
consideration.
As to the constitutional attack on the ordinance, the court said
that an ordinance may be uphheld if it bears a rational
relationship to a legitimate governmental interest, where
there is no suspect classification or fundamental interest
involved, and there is a presumption in favor of validity of
the ordinance, recognizing that the challenging party had
the burden of demonstrating that the ordinance was
unreasonable. The owners had claimed that a finding of
vacancy alone, in all or any part of a building, was
arbitrary and unreasonable and not rationally related to the
end sought to be achieved by the City's ordinance. To this,
the court recognized that the goal of the City's ordinance,
to eliminate blight and renew development in its central
business district, was a legitimate governmental interest,
but that the language used in the ordinance was so vague and
overly broad that it rendered the ordinance unreasonable.
The court held that under the phrase "vacancies in all or
part of any building," an owner of property, either wholly
or partially vacant, could not be certain whether the
property was at risk of condemnation, as the ordinance did
not specify whether any vacancy was sufficient to justify
condemnation or whether the vacancy must be excessive,
chronic or permanent. The requirement that only one of the
elements listed in the ordinance need be found in order to
justify condemnation, was found equally unreasonable,
arbitrary and overly broad; that is, requiring the presence
of only one of several factors set forth in the ordinance,
in order to justify condemnation, was invalid because it did
not put the average person on notice as to exactly when the
ordinance would be utilized.
For the foregoing reasons, the court held that the ordinance did
not bear a rational relationship to the legitimate
governmental interests in redeveloping blighted areas.
It is recommended that when a home rule municipality seeks to
exercise its power to execute land redevelopment and acquire
property for that purpose, it draft the proper ordinances,
setting forth sufficient standards that lawfully define
property which may be designated and otherwise qualify for
redevelopment and acquisition.
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