Under the Eminent Domain Act (“Act”) a utility company who receives a certificate or finding of public convenience and necessity from the Illinois Commerce Commission enjoys a rebuttable presumption that “acquisition of that property [being condemned] is (i) primarily for the benefit, use, or enjoyment of the public and (ii) necessary for a public purpose.” 735 ILCS 30/5-5-5(c). This article will briefly discuss the recent decisions from the Fourth District Appellate Court interpreting this provision.
In Enbridge Energy (Illinois), L.L.C. v. Kuerth (“Kuerth I”), 2018 IL App (4th) 150519, landowners filed a traverse and motion to dismiss challenging a utility company’s (the “condemnor”) ability to condemn their property. The Fourth District Appellate held that pursuant to Section 5-5-5(c) of the Act, the condemnor “enjoyed the rebuttable presumptions that its interests in landowners respective tracts of land were (1) primarily for the benefit, use, or enjoyment of the public; and (2) necessary for a public purpose.” Kuerth I at ¶164. The Fourth District found that the Illinois Commerce Commission’s (“ICC”) findings were “worthy of a strong presumption” because of the ICC’s experience and expertise in resolving technical issues that come before it including construction of utilities in Illinois. Thus, the Fourth District concluded that a landowner who files a traverse challenging public use and public necessity has the burden to present “clear and convincing evidence” to rebut the presumptions afforded under the Act. Id. ¶174. The court remanded the case back to the trial court to afford the landowners the opportunity to rebut the presumptions.
In a subsequent decision, the Fourth District Appellate Court again addressed the presumptions under Section 5-5-5(c) of the Act in Enbridge Energy (Illinois), L.L.C. v. Kuerth (“Kuerth II”), 2018 IL App (4th) 150519-B. In Kuerth II, the Fourth District affirmed the trial court’s denial of the landowners’ traverses on remand. On remand the landowners argued that a private company’s involvement in the utility project was clear and convincing evidence that the project was not primarily for the benefit, use, or enjoyment under Section 5-5-5(c) of the Act. The Fourth District disagreed and found that a company’s involvement was not relevant in rebutting the presumptions under the Act because the legislature determined that it is more efficient for a private company to construct and maintain utilities then the government. Kuerth II at ¶56. Thus, a private company’s involvement is not relevant so long as “the primary benefit inures to the public.” Id. ¶54. The court found that landowners failed to present clear and convincing evidence that the public would not be the primary beneficiary.
The Kuerth decisions clarify that a utility company who receives a certificate or finding from the ICC regarding public convenience and necessity enjoys significant presumptions. These presumptions are an important tool to understand and consider in developing an efficient strategy in any condemnation case.
Do You Have Legal Questions Regarding Eminent Domain or Traverse Procedures?
Contact the skilled attorneys at Spesia & Taylor today at (815) 726-4311 and our eminent domain team will provide you with all the assistance you need.