Orland Park and Eminent Domain

At a recent special meeting of the Board of Trustees, a scheduled issue arose over the possibility of the village exercising condemnation proceedings to acquire the moribund BP gas station and the neighboring former KFC at 94th Avenue and 159th Street.

There is some concern that the village is overreaching by spending money to take away somebody’s property without their consent. Others invoked the Fifth Amendment of the Constitution and pointed out that the intent of the “Takings Clause” was limited to “public use”.

Public use being things like parks, roads, utilities, etc..

The Fifth Amendment restricts but doesn’t eliminate eminent domain. The historic interpretations of what constituted “public use” were changed in the late 19th century and into the 20th century. It became “public purpose” when the courts broadened the definition.

In Berman v. Parker (1954) – The Supreme Court upheld Washington D.C.’s ability to condemn blighted properties for redevelopment, even if the land was later transferred to private parties, because the overall project served a public purpose (eliminating slums).

The most contentious case was in 2005 known as Kelo v. City of New London (Connecticut)

• Facts: The city of New London, Connecticut, used eminent domain to transfer homes to a private developer as part of an economic revitalization plan tied to Pfizer’s new facility.
• Ruling: The Supreme Court (5–4) held that economic development counts as a valid public purpose, even if the land is given to private developers, because the plan was expected to create jobs and increase tax revenues.
• Impact: The Court reaffirmed that “public use” = “public purpose”. However, the decision emphasized that states could impose stricter limits if they wish.

In Illinois, the reaction to Kelo was to pass reforms to restrict eminent domain powers. This was done with the Illinois Eminent Domain Act (735 ILCS 30) that became effective on January 1, 2007.

Illinois has a narrower focus, and the village will need to choose a legally valid public use theory to advance any acquisition.

The reasons behind why the BP failed are not officially known.

Revenue shortfalls? Expenses? Franchise violations?

The only thing we know is that no more sales tax revenue has emerged from that location in five years or so.

The positive thing about a possible condemnation of the BP is that it had a deed restriction. The restriction was typical of commercial properties like this where they didn’t want a competitor buying the property and succeeding where they failed.

It is essentially a poison pill that prohibits another gas station or convenience store or anything like it.

Under eminent domain, if the village were to take control, the deed restriction would disappear. This would widen the pool of potential buyers.

If the village moves ahead, they will need “clear and convincing” evidence to move past Illinois restrictions. This is higher standard than a normal “preponderance” test.

So, what does all of this legalese mean?

When you watch a TV show like Law & Order, the bad guy is being criminally prosecuted for a crime. The prosecutors have to prove “beyond a reasonable doubt” that the defendant is guilty to that standard. That’s at the top of the pyramid.

In civil or administrative cases it goes to “clear and convincing”.

“Clear and convincing” is just below “beyond a reasonable doubt”. “Preponderance of the evidence” is below “clear and convincing”.

Think of preponderance as more yes than no. Maybe 51% to 49%.

Without a doubt, the owners and tenant, will be protected by Illinois law. Orland Park will need to get to “clear and convincing”.

Difficult but not insurmountable.