THE EXERCISE OF HOME RULE EMINENT DOMAIN
POWER FOR REDEVELOPMENT PURPOSES

By BARRY A. SPRINGER

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 upheld 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

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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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