Public Act 103-0013
HB1105 EnrolledLRB103 00106 AWJ 45107 b HB1105 Enrolled LRB103 00106 AWJ 45107 b
HB1105 Enrolled LRB103 00106 AWJ 45107 b
AN ACT concerning local government.
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
Section 5. The Illinois Municipal Code is amended by
changing Sections 11-124-5 and 11-139-12 as follows:
(65 ILCS 5/11-124-5)
Sec. 11-124-5. Acquisition of water systems by eminent
domain.
(a) In addition to other provisions providing for the
acquisition of water systems or water works, whenever a public
utility subject to the Public Utilities Act utilizes public
property (including, but not limited to, right-of-way) of a
municipality for the installation or maintenance of all or
part of its water distribution system, the municipality has
the right to exercise eminent domain to acquire all or part of
the water system, in accordance with this Section. Unless it
complies with the provisions set forth in this Section, a
municipality is not permitted to acquire by eminent domain
that portion of a system located in another incorporated
municipality without agreement of that municipality, but this
provision shall not prevent the acquisition of that portion of
the water system existing within the acquiring municipality.
(b) Where a water system that is owned by a public utility
HB1105 Enrolled LRB103 00106 AWJ 45107 b
(as defined in the Public Utilities Act) provides water to
customers located in 2 or more municipalities, the system may
be acquired by a majority of the municipalities by eminent
domain. If the system is to be acquired by more than one
municipality, then there must be an intergovernmental
agreement in existence between the acquiring municipalities
providing for the acquisition.
(c) If a water system that is owned by a public utility
provides water to customers located in one or more
municipalities and also to customers in an unincorporated area
and if at least 70% of the customers of the system or portion
thereof are located within the municipality or municipalities,
then the system, or portion thereof as determined by the
corporate authorities, may be acquired, using eminent domain
or otherwise, by either a municipality under subsection (a) or
an entity created by agreement between municipalities where at
least 70% of the customers reside. For the purposes of
determining "customers of the system", only retail customers
directly billed by the company shall be included in the
computation. The number of customers of the system most
recently reported to the Illinois Commerce Commission for any
calendar year preceding the year a resolution is passed by a
municipality or municipalities expressing preliminary intent
to purchase the water system or portion thereof shall be
presumed to be the total number of customers within the
system. The public utility shall provide information relative
to the number of customers within each municipality and within
the system within 60 days after any such request by a
municipality.
(d) In the case of acquisition by a municipality or
municipalities or a public entity created by law to own or
operate a water system under this Section, service and water
supply must be provided to persons who are customers of the
system on the effective date of this amendatory Act of the 94th
General Assembly without discrimination based on whether the
customer is located within or outside of the boundaries of the
acquiring municipality or municipalities or entity, and a
supply contract existing on the effective date of this
amendatory Act of the 94th General Assembly must be honored by
an acquiring municipality, municipalities, or entity according
to the terms so long as the agreement does not conflict with
any other existing agreement.
(e) For the purposes of this Section, "system" includes
all assets reasonably necessary to provide water service to a
contiguous or compact geographical service area or to an area
served by a common pipeline and include, but are not limited
to, interests in real estate, all wells, pipes, treatment
plants, pumps and other physical apparatus, data and records
of facilities and customers, fire hydrants, equipment, or
vehicles and also includes service agreements and obligations
derived from use of the assets, whether or not the assets are
contiguous to the municipality, municipalities, or entity
created for the purpose of owning or operating a water system.
(f) Before making a good faith offer, a municipality may
pass a resolution of intent to study the feasibility of
purchasing or exercising its power of eminent domain to
acquire any water system or water works, sewer system or sewer
works, or combined water and sewer system or works, or part
thereof. Upon the passage of such a resolution, the
municipality shall have the right to review and inspect all
financial and other records, and both corporeal and
incorporeal assets of such utility related to the condition
and the operation of the system or works, or part thereof, as
part of the study and determination of feasibility of the
proposed acquisition by purchase or exercise of the power of
eminent domain, and the utility shall make knowledgeable
persons who have access to all relevant facts and information
regarding the subject system or works available to answer
inquiries related to the study and determination.
The right to review and inspect shall be upon reasonable
notice to the utility, with reasonable inspection and review
time limitations and reasonable response times for production,
copying, and answer. In addition, the utility may utilize a
reasonable security protocol for personnel on the
municipality's physical inspection team.
In the absence of other agreement, the utility must
respond to any notice by the municipality concerning its
review and inspection within 21 days after receiving the
notice. The review and inspection of the assets of the company
shall be over such period of time and carried out in such
manner as is reasonable under the circumstances.
Information requested that is not privileged or protected
from discovery under the Illinois Code of Civil Procedure but
is reasonably claimed to be proprietary, including, without
limitation, information that constitutes trade secrets or
information that involves system security concerns, shall be
provided, but shall not be considered a public record and
shall be kept confidential by the municipality.
In addition, the municipality must, upon request,
reimburse the utility for the actual, reasonable costs and
expenses, excluding attorneys' fees, incurred by the utility
as a result of the municipality's inspection and requests for
information. Upon written request, the utility shall issue a
statement itemizing, with reasonable detail, the costs and
expenses for which reimbursement is sought by the utility.
Where such written request for a statement has been made, no
payment shall be required until 30 days after receipt of the
statement. Such reimbursement by the municipality shall be
considered income for purposes of any rate proceeding or other
financial request before the Illinois Commerce Commission by
the utility.
The municipality and the utility shall cooperate to
resolve any dispute arising under this subsection. In the
event the dispute under this subsection cannot be resolved,
either party may request relief from the circuit court in any
county in which the water system is located, with the
prevailing party to be awarded such relief as the court deems
appropriate under the discovery abuse sanctions currently set
forth in the Illinois Code of Civil Procedure.
The municipality's right to inspect physical assets and
records in connection with the purpose of this Section shall
not be exercised with respect to any system more than one time
during a 5-year period, unless a substantial change in the
size of the system or condition of the operating assets of the
system has occurred since the previous inspection. Rights
under franchise agreements and other agreements or statutory
or regulatory provisions are not limited by this Section and
are preserved.
The passage of time between an inspection of the utilities
and physical assets and the making of a good faith offer or
initiation of an eminent domain action because of the limit
placed on inspections by this subsection shall not be used as a
basis for challenging the good faith of any offer or be used as
the basis for attacking any appraisal, expert, argument, or
position before a court related to an acquisition by purchase
or eminent domain.
(g) Notwithstanding any other provision of law, the
Illinois Commerce Commission has no approval authority of any
eminent domain action brought by any governmental entity or
combination of such entities to acquire water systems or water
works, except as is provided in subsection (h) of Section
10-5-10 of the Eminent Domain Act.
(h) The provisions of this Section are severable under
Section 1.31 of the Statute on Statutes.
(i) This Section does not apply to any public utility
company that, on January 1, 2006, supplied a total of 70,000 or
fewer meter connections in the State unless and until (i) that
public utility company receives approval from the Illinois
Commerce Commission under Section 7-204 of the Public
Utilities Act for the reorganization of the public utility
company or (ii) the majority control of the company changes
through a stock sale, a sale of assets, a merger (other than an
internal reorganization) or otherwise. For the purpose of this
Section, "public utility company" means the public utility
providing water service and includes any of its corporate
parents, subsidiaries, or affiliates possessing a franchised
water service in the State.
(j) Any contractor or subcontractor that performs work on
a water system acquired by a municipality or municipalities
under this Section shall comply with the requirements of
Section 30-22 of the Illinois Procurement Code. The contractor
or subcontractor shall submit evidence of compliance with
Section 30-22 to the municipality or municipalities.
(k) The municipality or municipalities acquiring the water
system shall offer available employee positions to the
qualified employees of the acquired water system.
(Source: P.A. 97-586, eff. 8-26-11; 97-813, eff. 7-13-12.)
(65 ILCS 5/11-139-12) (from Ch. 24, par. 11-139-12)
Sec. 11-139-12. Acquisition by eminent domain. For the
purpose of acquiring, constructing, extending, or improving
any combined waterworks and sewerage system under this
Division 139, or any property necessary or appropriate
therefor, any municipality has the right of eminent domain, as
provided by the Eminent Domain Act.
The fair cash market value of an existing waterworks and
sewerage system, or portion thereof, acquired under this
Division 139, which existing system is a special use property,
may be determined by considering Section 15 of Article I of the
Illinois Constitution, the Eminent Domain Act, and the Uniform
Standards of Professional Appraisal Practice and giving due
consideration to the income, cost, and market approaches to
valuation based on the type and character of the assets being
acquired. In making the valuation determination, the
historical and projected revenue attributable to the assets,
the costs of the assets, and the condition and remaining
useful life of the assets may be considered while giving due
account to the special use nature of the property as used for
water and sewerage purposes.
Additionally, in determining the fair cash market value of
existing utility facilities, whether real or personal,
consideration may be given to the depreciated value of all
facilities and fixtures constructed by the utility company and
payments made by the utility company in connection with the
acquisition or donation of any waterworks or sanitary sewage
system.
Except as is provided in subsection (h) of Section 10-5-10
of the Eminent Domain Act, For the purposes of this Section no
prior approval of the Illinois Commerce Commission, or any
other body having jurisdiction over the existing system, is
shall be required.
(Source: P.A. 96-1468, eff. 8-20-10.)
Section 10. The Eminent Domain Act is amended by changing
Section 10-5-10 as follows:
(735 ILCS 30/10-5-10) (was 735 ILCS 5/7-102)
Sec. 10-5-10. Parties.
(a) When the right (i) to take private property for public
use, without the owner's consent, (ii) to construct or
maintain any public road, railroad, plankroad, turnpike road,
canal, or other public work or improvement, or (iii) to damage
property not actually taken has been or is conferred by
general law or special charter upon any corporate or municipal
authority, public body, officer or agent, person,
commissioner, or corporation and when (i) the compensation to
be paid for or in respect of the property sought to be
appropriated or damaged for the purposes mentioned cannot be
agreed upon by the parties interested, (ii) the owner of the
property is incapable of consenting, (iii) the owner's name or
residence is unknown, or (iv) the owner is a nonresident of the
State, then the party authorized to take or damage the
property so required, or to construct, operate, and maintain
any public road, railroad, plankroad, turnpike road, canal, or
other public work or improvement, may apply to the circuit
court of the county where the property or any part of the
property is situated, by filing with the clerk a complaint.
The complaint shall set forth, by reference, (i) the
complainant's authority in the premises, (ii) the purpose for
which the property is sought to be taken or damaged, (iii) a
description of the property, and (iv) the names of all persons
interested in the property as owners or otherwise, as
appearing of record, if known, or if not known stating that
fact; and shall pray the court to cause the compensation to be
paid to the owner to be assessed.
(b) If it appears that any person not in being, upon coming
into being, is, or may become or may claim to be, entitled to
any interest in the property sought to be appropriated or
damaged, the court shall appoint some competent and
disinterested person as guardian ad litem to appear for and
represent that interest in the proceeding and to defend the
proceeding on behalf of the person not in being. Any judgment
entered in the proceeding shall be as effectual for all
purposes as though the person was in being and was a party to
the proceeding.
(c) If the proceeding seeks to affect the property of
persons under guardianship, the guardians shall be made
parties defendant.
(d) Any interested persons whose names are unknown may be
made parties defendant by the same descriptions and in the
same manner as provided in other civil cases.
(e) When the property to be taken or damaged is a common
element of property subject to a declaration of condominium
ownership, pursuant to the Condominium Property Act, or of a
common interest community, the complaint shall name the unit
owners' association in lieu of naming the individual unit
owners and lienholders on individual units. Unit owners,
mortgagees, and other lienholders may intervene as parties
defendant. For the purposes of this Section, "common interest
community" has the same meaning as set forth in subsection (c)
of Section 9-102 of the Code of Civil Procedure. "Unit owners'
association" or "association" shall refer to both the
definition contained in Section 2 of the Condominium Property
Act and subsection (c) of Section 9-102 of the Code of Civil
Procedure.
(f) When the property is sought to be taken or damaged by
the State for the purposes of establishing, operating, or
maintaining any State house or State charitable or other
institutions or improvements, the complaint shall be signed by
the Governor, or the Governor's designee, or as otherwise
provided by law.
(g) No property, except property described in Section 3 of
the Sports Stadium Act, property to be acquired in furtherance
of actions under Article 11, Divisions 124, 126, 128, 130,
135, 136, and 139, of the Illinois Municipal Code, property to
be acquired in furtherance of actions under Section 3.1 of the
Intergovernmental Cooperation Act, property to be acquired
that is a water system or waterworks pursuant to the home rule
powers of a unit of local government, and property described
as Site B in Section 2 of the Metropolitan Pier and Exposition
Authority Act, and property that may be taken as provided in
the Public-Private Agreements for the South Suburban Airport
Act belonging to a railroad or other public utility subject to
the jurisdiction of the Illinois Commerce Commission, may be
taken or damaged, pursuant to the provisions of this Act,
without the prior approval of the Illinois Commerce
Commission.
(h) Notwithstanding subsection (g), property belonging to
a public utility that provides water or sewer service and that
is subject to the jurisdiction of the Illinois Commerce
Commission may not be taken or damaged by eminent domain
without prior approval of the Illinois Commerce Commission,
except for property to be acquired by a municipality with
140,000 or more inhabitants or a regional water commission
formed under Article 11, Division 135.5 of the Illinois
Municipal Code or a municipality that is a member of such a
regional water commission, only in furtherance of purposes
authorized under Article 11, Division 135.5 of the Illinois
Municipal Code, and limited solely to interests in real
property and not improvements to or assets on the real
property belonging to a public utility that provides water or
sewer service and that is subject to the jurisdiction of the
Illinois Commerce Commission. This subsection does not apply
to any action commenced prior to the effective date of this
amendatory Act of the 103rd General Assembly under this
Section or Section 11-124-5 or 11-139-12 of the Illinois
Municipal Code.
(Source: P.A. 98-109, eff. 7-25-13.)
Section 99. Effective date. This Act takes effect upon
becoming law.