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"When
Government Wants Your Property"
By Barry A. Springer
Realty Forum, Chicago Sun-Times, August 2, 1992
The Lake Calumet Airport plan may be dead but whatever shape
Chicago airport expansion might take, property owners should
be aware of their options and rights.
The power of eminent domain (or condemnation) is an authority
vested in the federal government and the individual states
to purchase private land for public use.
The state can delegate that authority to other taxing bodies,
including municipalities, park and forest preserve
districts, highway authorities and others.
Also, the state can pass a statute to create a special purpose
authority with eminent domain power (such as the one that
administered the land acquisition for the new Comiskey
Park.)
Here are guidelines for property owners affected by eminent domain
law:
Land for public use. The definition of "land for public use"
is broad in scope. The most common applications are new or
expanded roadways, schools, police or fire stations, parks
and forest preserves. In general, it involves the
acquisition of land supported through public tax dollars.
Condemnation lawsuit. When a governmental body plans to
exercise eminent domain, it first attempts to agree with the
owner on just compensation for the property. If that is
unsuccessful, it petitions a court to set the compensation.
As in any lawsuit, a summons is issued and served on all parties
interested in the land informing them that they must respond
to the complaint with in a given period of time, usually 30
days.
if the property owner ignores the summons, then he can be found in
"default" and the government can proceed with acquisition
without his cooperation.
Due process of law. In eminent domain actions, due process
of law must be afforded to the property owners. this
includes the service of the above-mentioned summons and
complaint and a hearing on the issue of just compensation,
in the form of a trial by jury.
Traverse and motion to dismiss. Any party interested in the
property can challenge a taking by condemnation through a
proceeding called a "traverse and motion to dismiss."
The grounds for a traverse hearing include such issues as lack of
legal authority to purchase the land, lack of necessity to
purchase the land, lack of a bona fide attempt to reach a
financial agreement with the owner, and that the taking is
excessive of the need of the public.
At a traverse and motion to dismiss hearing, the owner must present
evidence and witnesses to contest the taking. This
proceeding is heard before a judge without a jury. If the
judge finds in favor of the owner, the complaint for
condemnation is dismissed.
Just compensation. The government must pay the owner "just
compensation," which generally is defined as the fair cash
market value of the property at its "highest and best use."
"Just compensation" is determined as of the date the suit is filed.
The government also may offer the owner additional funds to
compensate for moving, relocation and the owner's
inconvenience, but generally is not required to do so.
Highest and best use. The "highest and best use" of the
property generally is determined by its potential use as of
the date the suit is filed. The development potential is
determined by the real estate market, economic and legal
factors, and physical attributes of the property, among
others.
Quick take. In some instances, the government may have the
power of "quick take." this means that the government can
pay a preliminary amount of compensation and be immediately
vested with title to and possession of the property.
The parties interested in the property have the right to possession
of the preliminary compensation with no effect on their
rights should the matter proceed to trial on the issue of
compensation.
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