The hammer is smaller: My Web Times (Ottawa IL), 8/12/06

Cities, property owners mull impacts of new state law

By Jonathan Bilyk

Tim Jobst is glad the rules have changed.

He only wishes he could have played using the new set.

"Would things have been different? I don't know," said Jobst. "But down the road, I hope this will spare other people some of the headaches we went through."

Last week, [Illinois] Gov. Rod Blagojevich signed into law new legislation that supporters say will make it more difficult for cities and other local governments to seize private property for private development.

The law comes in response to a controversial ruling from the U.S. Supreme Court last year, which declared that governmental bodies can use eminent domain to take property from one private owner and give it to another when a project might benefit the larger community.

But the high court invited states to impose their own restrictions.

And in Illinois, beginning Jan. 1, local governments will face a more stringent process when attempting to use condemnation powers to combat economic blight or when seeking to aid a developer in building a new hotel, retail complex, industrial building or other private venture.

And Jobst, for one, welcomes the changes.

In 2004, Jobst felt eminent domain first hand, when the city of Ottawa filed a condemnation suit against him to compel him to sell his restaurant, Jimmy John's sandwich shop, to a developer seeking to build a hotel on the 100 block of West Main Street, which lies adjacent to Jobst's store.

The block, known locally as the Jordan block, has stood largely vacant and decaying since it was ravaged by fire in 1998.

The threat of eminent domain alone compelled Jobst to settle out of court, at a price he believed too small.

Ultimately, the hotel plan was scrapped in favor of a new proposal by a new developer to find an investor willing to develop retail stores, restaurants and condominiums on the block.

And, while the search for that investor continues, Jobst has been allowed to continue to operate his sandwich shop.

But Jobst said the process still troubles him.

"To allow something like this is wrong on a lot of different levels," said Jobst. "So I'm glad there have been some corrections."

Most notably, the new law shifts the burden onto the city or other entity desiring to take the land to prove that the property in question actually is blighted, meaning that it is no longer economically productive.

And that, said Anita Kopko, an attorney for the city of Ottawa, is a key provision.

Previously, she noted, a city council could simply pass a resolution declaring a property to be blighted.

Then, it was essentially up to the property owner to prove to a judge that the city's assessment was wrong.

"This will place a heavier burden on the city or unit of local government," said Kopko. "There is no question that this will make our job harder when using condemnation proceedings."

That appraisal of the law was shared by local state legislators.

State Rep. Frank Mautino, D-Spring Valley, one of the bill's co-sponsors, said he believed Illinois law was already stringent concerning eminent domain.

But he said the new law strengthens the balance between private property owners and the public good.

And State Sen. Gary Dahl, R-Peru, also praised the law.

"Before, municipalities could use eminent domain as a hammer against private property owners in negotiations," said Dahl. "But now that hammer is a lot smaller."

Steven Anderson, an attorney with the Washington, D.C.-based libertarian public interest law firm, the Institute for Justice, described the Illinois law as "a good start."

He praised the law for prohibiting the seizure of farm land for economic development and for requiring cities to prove blight.

But Anderson said the law still would allow municipalities to abuse eminent domain, as the law does not spell out a clear definition of economic blight.

He said Illinois would have been better served to follow the example of Florida, which enacted a law prohibiting cities from using eminent domain to cure blight.

"Florida stands as the example of a state that takes the property rights of its residents businesses seriously," said Anderson.

Kopko said the new rules, if they had been in place in 2004, would have likely slowed the city's task of accumulating the properties that were ultimately sold to the Jordan block developer last month.

"There would have been more hoops for us to jump through, definitely," she said.

But she predicted that cities will likely continue to use eminent domain to aid developers seeking to redevelop areas city officials believe to be in need of work.

"There are some parts of the law that are vague, yes," said Kopko. "And cities will still move forward with ridding areas of town of blight and non-productivity."

My Web Times: http://mywebtimes.com/ottnews