Public Act 103-0013
 
HB1105 EnrolledLRB103 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 
(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.