HB1105 EngrossedLRB103 00106 AWJ 45107 b

1    AN ACT concerning local government.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Illinois Municipal Code is amended by
5changing Sections 11-124-5 and 11-139-12 as follows:
 
6    (65 ILCS 5/11-124-5)
7    Sec. 11-124-5. Acquisition of water systems by eminent
8domain.
9    (a) In addition to other provisions providing for the
10acquisition of water systems or water works, whenever a public
11utility subject to the Public Utilities Act utilizes public
12property (including, but not limited to, right-of-way) of a
13municipality for the installation or maintenance of all or
14part of its water distribution system, the municipality has
15the right to exercise eminent domain to acquire all or part of
16the water system, in accordance with this Section. Unless it
17complies with the provisions set forth in this Section, a
18municipality is not permitted to acquire by eminent domain
19that portion of a system located in another incorporated
20municipality without agreement of that municipality, but this
21provision shall not prevent the acquisition of that portion of
22the water system existing within the acquiring municipality.
23    (b) Where a water system that is owned by a public utility

 

 

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1(as defined in the Public Utilities Act) provides water to
2customers located in 2 or more municipalities, the system may
3be acquired by a majority of the municipalities by eminent
4domain. If the system is to be acquired by more than one
5municipality, then there must be an intergovernmental
6agreement in existence between the acquiring municipalities
7providing for the acquisition.
8    (c) If a water system that is owned by a public utility
9provides water to customers located in one or more
10municipalities and also to customers in an unincorporated area
11and if at least 70% of the customers of the system or portion
12thereof are located within the municipality or municipalities,
13then the system, or portion thereof as determined by the
14corporate authorities, may be acquired, using eminent domain
15or otherwise, by either a municipality under subsection (a) or
16an entity created by agreement between municipalities where at
17least 70% of the customers reside. For the purposes of
18determining "customers of the system", only retail customers
19directly billed by the company shall be included in the
20computation. The number of customers of the system most
21recently reported to the Illinois Commerce Commission for any
22calendar year preceding the year a resolution is passed by a
23municipality or municipalities expressing preliminary intent
24to purchase the water system or portion thereof shall be
25presumed to be the total number of customers within the
26system. The public utility shall provide information relative

 

 

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1to the number of customers within each municipality and within
2the system within 60 days after any such request by a
3municipality.
4    (d) In the case of acquisition by a municipality or
5municipalities or a public entity created by law to own or
6operate a water system under this Section, service and water
7supply must be provided to persons who are customers of the
8system on the effective date of this amendatory Act of the 94th
9General Assembly without discrimination based on whether the
10customer is located within or outside of the boundaries of the
11acquiring municipality or municipalities or entity, and a
12supply contract existing on the effective date of this
13amendatory Act of the 94th General Assembly must be honored by
14an acquiring municipality, municipalities, or entity according
15to the terms so long as the agreement does not conflict with
16any other existing agreement.
17    (e) For the purposes of this Section, "system" includes
18all assets reasonably necessary to provide water service to a
19contiguous or compact geographical service area or to an area
20served by a common pipeline and include, but are not limited
21to, interests in real estate, all wells, pipes, treatment
22plants, pumps and other physical apparatus, data and records
23of facilities and customers, fire hydrants, equipment, or
24vehicles and also includes service agreements and obligations
25derived from use of the assets, whether or not the assets are
26contiguous to the municipality, municipalities, or entity

 

 

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1created for the purpose of owning or operating a water system.
2    (f) Before making a good faith offer, a municipality may
3pass a resolution of intent to study the feasibility of
4purchasing or exercising its power of eminent domain to
5acquire any water system or water works, sewer system or sewer
6works, or combined water and sewer system or works, or part
7thereof. Upon the passage of such a resolution, the
8municipality shall have the right to review and inspect all
9financial and other records, and both corporeal and
10incorporeal assets of such utility related to the condition
11and the operation of the system or works, or part thereof, as
12part of the study and determination of feasibility of the
13proposed acquisition by purchase or exercise of the power of
14eminent domain, and the utility shall make knowledgeable
15persons who have access to all relevant facts and information
16regarding the subject system or works available to answer
17inquiries related to the study and determination.
18    The right to review and inspect shall be upon reasonable
19notice to the utility, with reasonable inspection and review
20time limitations and reasonable response times for production,
21copying, and answer. In addition, the utility may utilize a
22reasonable security protocol for personnel on the
23municipality's physical inspection team.
24    In the absence of other agreement, the utility must
25respond to any notice by the municipality concerning its
26review and inspection within 21 days after receiving the

 

 

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1notice. The review and inspection of the assets of the company
2shall be over such period of time and carried out in such
3manner as is reasonable under the circumstances.
4    Information requested that is not privileged or protected
5from discovery under the Illinois Code of Civil Procedure but
6is reasonably claimed to be proprietary, including, without
7limitation, information that constitutes trade secrets or
8information that involves system security concerns, shall be
9provided, but shall not be considered a public record and
10shall be kept confidential by the municipality.
11    In addition, the municipality must, upon request,
12reimburse the utility for the actual, reasonable costs and
13expenses, excluding attorneys' fees, incurred by the utility
14as a result of the municipality's inspection and requests for
15information. Upon written request, the utility shall issue a
16statement itemizing, with reasonable detail, the costs and
17expenses for which reimbursement is sought by the utility.
18Where such written request for a statement has been made, no
19payment shall be required until 30 days after receipt of the
20statement. Such reimbursement by the municipality shall be
21considered income for purposes of any rate proceeding or other
22financial request before the Illinois Commerce Commission by
23the utility.
24    The municipality and the utility shall cooperate to
25resolve any dispute arising under this subsection. In the
26event the dispute under this subsection cannot be resolved,

 

 

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1either party may request relief from the circuit court in any
2county in which the water system is located, with the
3prevailing party to be awarded such relief as the court deems
4appropriate under the discovery abuse sanctions currently set
5forth in the Illinois Code of Civil Procedure.
6    The municipality's right to inspect physical assets and
7records in connection with the purpose of this Section shall
8not be exercised with respect to any system more than one time
9during a 5-year period, unless a substantial change in the
10size of the system or condition of the operating assets of the
11system has occurred since the previous inspection. Rights
12under franchise agreements and other agreements or statutory
13or regulatory provisions are not limited by this Section and
14are preserved.
15    The passage of time between an inspection of the utilities
16and physical assets and the making of a good faith offer or
17initiation of an eminent domain action because of the limit
18placed on inspections by this subsection shall not be used as a
19basis for challenging the good faith of any offer or be used as
20the basis for attacking any appraisal, expert, argument, or
21position before a court related to an acquisition by purchase
22or eminent domain.
23    (g) Notwithstanding any other provision of law, the
24Illinois Commerce Commission has no approval authority of any
25eminent domain action brought by any governmental entity or
26combination of such entities to acquire water systems or water

 

 

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1works, except as is provided in subsection (h) of Section
210-5-10 of the Eminent Domain Act.
3    (h) The provisions of this Section are severable under
4Section 1.31 of the Statute on Statutes.
5    (i) This Section does not apply to any public utility
6company that, on January 1, 2006, supplied a total of 70,000 or
7fewer meter connections in the State unless and until (i) that
8public utility company receives approval from the Illinois
9Commerce Commission under Section 7-204 of the Public
10Utilities Act for the reorganization of the public utility
11company or (ii) the majority control of the company changes
12through a stock sale, a sale of assets, a merger (other than an
13internal reorganization) or otherwise. For the purpose of this
14Section, "public utility company" means the public utility
15providing water service and includes any of its corporate
16parents, subsidiaries, or affiliates possessing a franchised
17water service in the State.
18    (j) Any contractor or subcontractor that performs work on
19a water system acquired by a municipality or municipalities
20under this Section shall comply with the requirements of
21Section 30-22 of the Illinois Procurement Code. The contractor
22or subcontractor shall submit evidence of compliance with
23Section 30-22 to the municipality or municipalities.
24    (k) The municipality or municipalities acquiring the water
25system shall offer available employee positions to the
26qualified employees of the acquired water system.

 

 

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1(Source: P.A. 97-586, eff. 8-26-11; 97-813, eff. 7-13-12.)
 
2    (65 ILCS 5/11-139-12)  (from Ch. 24, par. 11-139-12)
3    Sec. 11-139-12. Acquisition by eminent domain. For the
4purpose of acquiring, constructing, extending, or improving
5any combined waterworks and sewerage system under this
6Division 139, or any property necessary or appropriate
7therefor, any municipality has the right of eminent domain, as
8provided by the Eminent Domain Act.
9    The fair cash market value of an existing waterworks and
10sewerage system, or portion thereof, acquired under this
11Division 139, which existing system is a special use property,
12may be determined by considering Section 15 of Article I of the
13Illinois Constitution, the Eminent Domain Act, and the Uniform
14Standards of Professional Appraisal Practice and giving due
15consideration to the income, cost, and market approaches to
16valuation based on the type and character of the assets being
17acquired. In making the valuation determination, the
18historical and projected revenue attributable to the assets,
19the costs of the assets, and the condition and remaining
20useful life of the assets may be considered while giving due
21account to the special use nature of the property as used for
22water and sewerage purposes.
23    Additionally, in determining the fair cash market value of
24existing utility facilities, whether real or personal,
25consideration may be given to the depreciated value of all

 

 

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1facilities and fixtures constructed by the utility company and
2payments made by the utility company in connection with the
3acquisition or donation of any waterworks or sanitary sewage
4system.
5    Except as is provided in subsection (h) of Section 10-5-10
6of the Eminent Domain Act, For the purposes of this Section no
7prior approval of the Illinois Commerce Commission, or any
8other body having jurisdiction over the existing system, is
9shall be required.
10(Source: P.A. 96-1468, eff. 8-20-10.)
 
11    Section 10. The Eminent Domain Act is amended by changing
12Section 10-5-10 as follows:
 
13    (735 ILCS 30/10-5-10)  (was 735 ILCS 5/7-102)
14    Sec. 10-5-10. Parties.
15    (a) When the right (i) to take private property for public
16use, without the owner's consent, (ii) to construct or
17maintain any public road, railroad, plankroad, turnpike road,
18canal, or other public work or improvement, or (iii) to damage
19property not actually taken has been or is conferred by
20general law or special charter upon any corporate or municipal
21authority, public body, officer or agent, person,
22commissioner, or corporation and when (i) the compensation to
23be paid for or in respect of the property sought to be
24appropriated or damaged for the purposes mentioned cannot be

 

 

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1agreed upon by the parties interested, (ii) the owner of the
2property is incapable of consenting, (iii) the owner's name or
3residence is unknown, or (iv) the owner is a nonresident of the
4State, then the party authorized to take or damage the
5property so required, or to construct, operate, and maintain
6any public road, railroad, plankroad, turnpike road, canal, or
7other public work or improvement, may apply to the circuit
8court of the county where the property or any part of the
9property is situated, by filing with the clerk a complaint.
10The complaint shall set forth, by reference, (i) the
11complainant's authority in the premises, (ii) the purpose for
12which the property is sought to be taken or damaged, (iii) a
13description of the property, and (iv) the names of all persons
14interested in the property as owners or otherwise, as
15appearing of record, if known, or if not known stating that
16fact; and shall pray the court to cause the compensation to be
17paid to the owner to be assessed.
18    (b) If it appears that any person not in being, upon coming
19into being, is, or may become or may claim to be, entitled to
20any interest in the property sought to be appropriated or
21damaged, the court shall appoint some competent and
22disinterested person as guardian ad litem to appear for and
23represent that interest in the proceeding and to defend the
24proceeding on behalf of the person not in being. Any judgment
25entered in the proceeding shall be as effectual for all
26purposes as though the person was in being and was a party to

 

 

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1the proceeding.
2    (c) If the proceeding seeks to affect the property of
3persons under guardianship, the guardians shall be made
4parties defendant.
5    (d) Any interested persons whose names are unknown may be
6made parties defendant by the same descriptions and in the
7same manner as provided in other civil cases.
8    (e) When the property to be taken or damaged is a common
9element of property subject to a declaration of condominium
10ownership, pursuant to the Condominium Property Act, or of a
11common interest community, the complaint shall name the unit
12owners' association in lieu of naming the individual unit
13owners and lienholders on individual units. Unit owners,
14mortgagees, and other lienholders may intervene as parties
15defendant. For the purposes of this Section, "common interest
16community" has the same meaning as set forth in subsection (c)
17of Section 9-102 of the Code of Civil Procedure. "Unit owners'
18association" or "association" shall refer to both the
19definition contained in Section 2 of the Condominium Property
20Act and subsection (c) of Section 9-102 of the Code of Civil
21Procedure.
22    (f) When the property is sought to be taken or damaged by
23the State for the purposes of establishing, operating, or
24maintaining any State house or State charitable or other
25institutions or improvements, the complaint shall be signed by
26the Governor, or the Governor's designee, or as otherwise

 

 

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1provided by law.
2    (g) No property, except property described in Section 3 of
3the Sports Stadium Act, property to be acquired in furtherance
4of actions under Article 11, Divisions 124, 126, 128, 130,
5135, 136, and 139, of the Illinois Municipal Code, property to
6be acquired in furtherance of actions under Section 3.1 of the
7Intergovernmental Cooperation Act, property to be acquired
8that is a water system or waterworks pursuant to the home rule
9powers of a unit of local government, and property described
10as Site B in Section 2 of the Metropolitan Pier and Exposition
11Authority Act, and property that may be taken as provided in
12the Public-Private Agreements for the South Suburban Airport
13Act belonging to a railroad or other public utility subject to
14the jurisdiction of the Illinois Commerce Commission, may be
15taken or damaged, pursuant to the provisions of this Act,
16without the prior approval of the Illinois Commerce
17Commission.
18    (h) Notwithstanding subsection (g), property belonging to
19a public utility that provides water or sewer service and that
20is subject to the jurisdiction of the Illinois Commerce
21Commission may not be taken or damaged by eminent domain
22without prior approval of the Illinois Commerce Commission,
23except for property to be acquired by a municipality with
24140,000 or more inhabitants or a regional water commission
25formed under Article 11, Division 135.5 of the Illinois
26Municipal Code or a municipality that is a member of such a

 

 

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1regional water commission, only in furtherance of purposes
2authorized under Article 11, Division 135.5 of the Illinois
3Municipal Code, and limited solely to interests in real
4property and not improvements to or assets on the real
5property belonging to a public utility that provides water or
6sewer service and that is subject to the jurisdiction of the
7Illinois Commerce Commission. This subsection does not apply
8to any action commenced prior to the effective date of this
9amendatory Act of the 103rd General Assembly under this
10Section or Section 11-124-5 or 11-139-12 of the Illinois
11Municipal Code.
12(Source: P.A. 98-109, eff. 7-25-13.)
 
13    Section 99. Effective date. This Act takes effect upon
14becoming law.