takings clause in Illinois

2025“Property is considered damaged for purposes of the takings clause if there is ‘any direct physical disturbance of a right, either public or private, which an owner enjoys in connection with his property; a right which gives the property an additional value; a right which is disturbed in a way that inflicts a special damage with respect to the property in excess of that sustained by the public generally.’ ” Id. (quoting Citizens Utilities Co. of Illinois v. Metropolitan Sanitary District of Greater Chicago, 25 Ill. App. 3d 252, 256 (1974)).

2019Rather, “[p]roperty is considered damaged for purposes of the takings clause if there is ‘any direct physical disturbance of a right, either public or private, which an owner enjoys in connection with his property; a right which gives the property an additional value; a right which is disturbed in a way that inflicts a special damage with respect to the property in excess of that sustained by the public generally.’ ” Hampton, 2016 IL 119861, ¶ 27 (quoting Citizens Utilities Co. of Illinois v. Metropolitan Sanitary District of Greater Chicago, 25 Ill. App. 3d 252, 256 (1974)). ¶ 50 In their com

2022Water Reclamation Dist. of Greater Chicago, 2016 IL 119861 , ¶ 25; Forest Preserve District v. West Suburban Bank, 161 Ill. 2d 448, 455-58 (1994). ¶ 92 Plaintiff here has never maintained that his property was “damaged” under the takings clause of the Illinois Constitution.

2016See Forest Preserve District v. West Suburban Bank, 161 Ill. 2d 448, 458 (1994) (“ ‘[T]he fifth amendment’s prohibition of the taking of private property for public use without just compensation does not preclude the State from taking private property, but only requires the State pay compensation.’ *** We interpret our present State constitutional protection against taking property without just compensation in the same way.” (quoting Beverly Bank v. Illinois Department of Transportation, 144 Ill. 2d 210, 229-30 (1991)); Horn v. City of Chicago, 403 Ill. 549, 554 (1949) (noting that the same te

2021“Damage” under the Illinois Constitution’s takings clause is: “ ‘[S]ome direct physical disturbance of a right, either public or private, which [the plaintiff] enjoys in connection with his property, and which gives to it an additional value, and *** by reason of [which] he has sustained a special damage with respect to his property in excess of that sustained by the public generally.’ ” Equity Associates, Inc. v. Village of Northbrook, 171 Ill. App. 3d 115, 121-22 (1988) (quoting Rigney v. City of Chicago, 102 Ill. 64, 81 (1881)).

2021“Damage” under the Illinois Constitution’s takings clause is: - 10 - “ ‘[S]ome direct physical disturbance of a right, either public or private, which [the plaintiff] enjoys in connection with his property, and which gives to it an additional value, and *** by reason of [which] he has sustained a special damage with respect to his property in excess of that sustained by the public generally.’ ” Equity Associates, Inc. v. Village of Northbrook, 171 Ill. App. 3d 115, 121-22 (1988) (quoting Rigney v. City of Chicago, 102 Ill. 64, 81 (1881)).

2025See City of Chicago v. ProLogis, 236 Ill. 2d 69, 77-78 (2010) (the Illinois takings clause applies to private property of all kinds and character, including personal property).

2016See Forest Preserve District v. West Suburban Bank, 161 Ill. 2d 448, 458 (1994) (“ ‘[T]he fifth amendment’s prohibition of the taking of private property for public use without just compensation does not preclude the State from taking private property, but only requires the State pay compensation.’ *** We interpret our present State constitutional protection against taking property without just compensation in the same way.” (quoting Beverly Bank v. Illinois Department of Transportation, 144 Ill. 2d 210, 229-30 (1991)); Horn v. City of Chicago, 403 Ill. 549, 554 (1949) (noting that the same te

2010See Stenstrom Petroleum Services Group, Inc. v. Mesch, 375 Ill.App.3d 1077, 1098-99 , 314 Ill.Dec. 594 , 874 N.E.2d 959 (2007) ("It is well settled that `[a] reviewing court is entitled to have issues clearly defined with pertinent authority cited and cohesive arguments presented ([210 Ill.2d R. 341(h)(7)]), and it is not a repository into which an appellant may foist the burden of argument and research'" (quoting Obert v. Saville, 253 Ill.App.3d 677, 682 , 191 Ill.

2010See Stenstrom Petroleum Services Group, Inc. v. Mesch, 375 Ill.

2013V; Phillips v. Washington Legal Foundation, 524 U.S. 156 (1998) (indicating that interest accruing on attorney trust accounts were private property within the meaning of the constitution’s takings clause); Canel v. Topinka, 212 Ill. 2d 311 , 818 N.E.2d 311 (2004) (same with respect to dividends and interest accruing on unclaimed property presumed to be abandoned and placed in the state’s custody for safekeeping).

2013V; Phillips v. Washington Legal Foundation, 524 U.S. 156 (1998) (indicating that interest accruing on attorney trust accounts were private property within the meaning of the constitution’s takings clause); Canel v. Topinka, 212 Ill. 2d 311 , 818 N.E.2d 311 (2004) (same with respect to dividends and interest accruing on unclaimed property presumed to be abandoned and placed in the state’s custody for safekeeping).

2008Justices Stevens, Souter, Ginsburg, and Breyer agreed with Justice Kennedy that the takings clause was not implicated, finding that “at the heart of the [Takings] Clause lies a concern, not with preventing arbitrary or unfair government action, but with providing compensation for legitimate government action that takes ‘private property’ to serve the ‘public’ good.” (Emphasis in original.) Apfel, 524 U.S. at 554 , 141 L.

2008Ed. 2d 451 , 118 S. Ct. 2131 (1998) (plurality op.), to support their argument that a takings analysis may be applied to a monetary obligation.

2021City of Chicago v. ProLogis, 383 Ill. App. 3d 160, 165 (2008). ¶ 50 The Illinois Constitution’s takings clause is broader than its federal counterpart because the Illinois Constitution provides a remedy for property that is damaged, in addition to property that is taken.

2021City of Chicago v. ProLogis, 383 Ill. App. 3d 160, 165 (2008). ¶ 50 The Illinois Constitution’s takings clause is broader than its federal counterpart because the Illinois Constitution provides a remedy for property that is damaged, in addition to property that is taken.

2021“Damage” under the Illinois Constitution’s takings clause is: “ ‘[S]ome direct physical disturbance of a right, either public or private, which [the plaintiff] enjoys in connection with his property, and which gives to it an additional value, and *** by reason of [which] he has sustained a special damage with respect to his property in excess of that sustained by the public generally.’ ” Equity Associates, Inc. v. Village of Northbrook, 171 Ill. App. 3d 115, 121-22 (1988) (quoting Rigney v. City of Chicago, 102 Ill. 64, 81 (1881)).

2021“Damage” under the Illinois Constitution’s takings clause is: - 10 - “ ‘[S]ome direct physical disturbance of a right, either public or private, which [the plaintiff] enjoys in connection with his property, and which gives to it an additional value, and *** by reason of [which] he has sustained a special damage with respect to his property in excess of that sustained by the public generally.’ ” Equity Associates, Inc. v. Village of Northbrook, 171 Ill. App. 3d 115, 121-22 (1988) (quoting Rigney v. City of Chicago, 102 Ill. 64, 81 (1881)).

2019Our supreme court has also recognized: “[I]t has long been established that there are certain injuries, necessarily incident to the ownership of property, which directly impair the value of private property and for which the law does not, and never has, afforded any relief, examples being the depreciation caused by the building of fire houses, police stations, hospitals, cemeteries and the like in close proximity to private property. [Citations.] Such injury is deemed to be damnum absque injuria—loss without injury in the legal sense—on the theory that the property owner is compensated for the

2019Our supreme court has also recognized: “[I]t has long been established that there are certain injuries, necessarily incident to the ownership of property, which directly impair the value of private property and for which the law does not, and never has, afforded any relief, examples being the depreciation caused by the building of fire houses, police stations, hospitals, cemeteries and the like in close proximity to private property. [Citations.] Such injury is deemed to be damnum absque injuria—loss without injury in the legal sense—on the theory that the property owner is compensated for the

2016See Forest Preserve District v. West Suburban Bank, 161 Ill. 2d 448, 458 (1994) (“ ‘[T]he fifth amendment’s prohibition of the taking of private property for public use without just compensation does not preclude the State from taking private property, but only requires the State pay compensation.’ *** We interpret our present State constitutional protection against taking property without just compensation in the same way.” (quoting Beverly Bank v. Illinois Department of Transportation, 144 Ill. 2d 210, 229-30 (1991)); Horn v. City of Chicago, 403 Ill. 549, 554 (1949) (noting that the same te

2016See Forest Preserve District v. West Suburban Bank, 161 Ill. 2d 448, 458 (1994) (“ ‘[T]he fifth amendment’s prohibition of the taking of private property for public use without just compensation does not preclude the State from taking private property, but only requires the State pay compensation.’ *** We interpret our present State constitutional protection against taking property without just compensation in the same way.” (quoting Beverly Bank v. Illinois Department of Transportation, 144 Ill. 2d 210, 229-30 (1991)); Horn v. City of Chicago, 403 Ill. 549, 554 (1949) (noting that the same te

2016See Forest Preserve District v. West Suburban Bank, 161 Ill. 2d 448, 458 (1994) (“ ‘[T]he fifth amendment’s prohibition of the taking of private property for public use without just compensation does not preclude the State from taking private property, but only requires the State pay compensation.’ *** We interpret our present State constitutional protection against taking property without just compensation in the same way.” (quoting Beverly Bank v. Illinois Department of Transportation, 144 Ill. 2d 210, 229-30 (1991)); Horn v. City of Chicago, 403 Ill. 549, 554 (1949) (noting that the same te

2016See Forest Preserve District v. West Suburban Bank, 161 Ill. 2d 448, 458 (1994) (“ ‘[T]he fifth amendment’s prohibition of the taking of private property for public use without just compensation does not preclude the State from taking private property, but only requires the State pay compensation.’ *** We interpret our present State constitutional protection against taking property without just compensation in the same way.” (quoting Beverly Bank v. Illinois Department of Transportation, 144 Ill. 2d 210, 229-30 (1991)); Horn v. City of Chicago, 403 Ill. 549, 554 (1949) (noting that the same te

2016See Forest Preserve District v. West Suburban Bank, 161 Ill. 2d 448, 458 (1994) (“ ‘[T]he fifth amendment’s prohibition of the taking of private property for public use without just compensation does not preclude the State from taking private property, but only requires the State pay compensation.’ *** We interpret our present State constitutional protection against taking property without just compensation in the same way.” (quoting Beverly Bank v. Illinois Department of Transportation, 144 Ill. 2d 210, 229-30 (1991)); Horn v. City of Chicago, 403 Ill. 549, 554 (1949) (noting that the same te

2016See Forest Preserve District v. West Suburban Bank, 161 Ill. 2d 448, 458 (1994) (“ ‘[T]he fifth amendment’s prohibition of the taking of private property for public use without just compensation does not preclude the State from taking private property, but only requires the State pay compensation.’ *** We interpret our present State constitutional protection against taking property without just compensation in the same way.” (quoting Beverly Bank v. Illinois Department of Transportation, 144 Ill. 2d 210, 229-30 (1991)); Horn v. City of Chicago, 403 Ill. 549, 554 (1949) (noting that the same te

2016See Forest Preserve District v. West Suburban Bank, 161 Ill. 2d 448, 458 (1994) (“ ‘[T]he fifth amendment’s prohibition of the taking of private property for public use without just compensation does not preclude the State from taking private property, but only requires the State pay compensation.’ *** We interpret our present State constitutional protection against taking property without just compensation in the same way.” (quoting Beverly Bank v. Illinois Department of Transportation, 144 Ill. 2d 210, 229-30 (1991)); Horn v. City of Chicago, 403 Ill. 549, 554 (1949) (noting that the same te

2016See Forest Preserve District v. West Suburban Bank, 161 Ill. 2d 448, 458 (1994) (“ ‘[T]he fifth amendment’s prohibition of the taking of private property for public use without just compensation does not preclude the State from taking private property, but only requires the State pay compensation.’ *** We interpret our present State constitutional protection against taking property without just compensation in the same way.” (quoting Beverly Bank v. Illinois Department of Transportation, 144 Ill. 2d 210, 229-30 (1991)); Horn v. City of Chicago, 403 Ill. 549, 554 (1949) (noting that the same te

2016“The critical inquiry in determining whether a pleading should be dismissed *** is whether the allegations, when construed in the light most favorable to the plaintiff, are sufficient to establish a cause of action upon which relief may be granted.” Sorrells v. City of Macomb, 2015 IL App (3d) 140763, ¶ 22 (citing Kanerva v. Weems, 2014 IL 115811, ¶ 33 ). ¶ 24 The court has defined a taking as a physical invasion of private property or the radical interference with a private property owner’s use and enjoyment of the property.

2016“The critical inquiry in determining whether a pleading should be dismissed *** is whether the allegations, when construed in the light most favorable to the plaintiff, are sufficient to establish a cause of action upon which relief may be granted.” Sorrells v. City of Macomb, 2015 IL App (3d) 140763, ¶ 22 (citing Kanerva v. Weems, 2014 IL 115811, ¶ 33 ). ¶ 24 The court has defined a taking as a physical invasion of private property or the radical interference with a private property owner’s use and enjoyment of the property.

2016See Forest Preserve District v. West Suburban Bank, 161 Ill. 2d 448, 458 (1994) (“ ‘[T]he fifth amendment’s prohibition of the taking of private property for public use without just compensation does not preclude the State from taking private property, but only requires the State pay compensation.’ *** We interpret our present State constitutional protection against taking property without just compensation in the same way.” (quoting Beverly Bank v. Illinois Department of Transportation, 144 Ill. 2d 210, 229-30 (1991)); Horn v. City of Chicago, 403 Ill. 549, 554 (1949) (noting that the same te

2016See Forest Preserve District v. West Suburban Bank, 161 Ill. 2d 448, 458 (1994) (“ ‘[T]he fifth amendment’s prohibition of the taking of private property for public use without just compensation does not preclude the State from taking private property, but only requires the State pay compensation.’ *** We interpret our present State constitutional protection against taking property without just compensation in the same way.” (quoting Beverly Bank v. Illinois Department of Transportation, 144 Ill. 2d 210, 229-30 (1991)); Horn v. City of Chicago, 403 Ill. 549, 554 (1949) (noting that the same te

2016The court found that the “Illinois takings clause provides protection greater than that of its federal counterpart.” 2015 IL App (1st) 132317 , ¶ 14 (citing International College of Surgeons v. City of Chicago, 153 F.3d 356, 363 (7th Cir. 1998)).

2016The court found that the “Illinois takings clause provides protection greater than that of its federal counterpart.” 2015 IL App (1st) 132317 , ¶ 14 (citing International College of Surgeons v. City of Chicago, 153 F.3d 356, 363 (7th Cir. 1998)).

2013Id. at 83 . ¶ 73 Finally, as to counts III and IV of the second amended complaint, the court has held that 36 1-12-0265) 1-12-1556)Cons. “[a]mendments that are filed without leave of court ‘are said to be a nullity which should be stricken.’ [Citation.]” Kurczaba v. Pollock, 318 Ill. App. 3d 686, 703 (2000).

2013Id. at 83 . ¶ 73 Finally, as to counts III and IV of the second amended complaint, the court has held that “[a]mendments that are filed without leave of court ‘are said to be a nullity which should be stricken.’ [Citation.]” Kurczaba v. Pollock, 318 Ill. App. 3d 686, 703 (2000).

2009The takings clause “ ‘is a restraint and limitation placed upon the exercise of [the condemnation power] as against the right of the private citizen except in those cases where public necessity requires the taking of private property for public use,’ ” and “[t]he legislature *** cannot, by delegating the power of eminent domain, dispense with constitutional requirements restricting its use, including the requirement of ‘necessity.’ ” YWCA, 86 Ill. 2d at 232-33 , quoting Ryan, 357 Ill. at 154 ; see also Davis v. Brown, 357 Ill.

2009Director of Finance v. Young Women’s Christian Ass’n, 86 Ill. 2d 219, 232 (1981) (YWCA) (the takings clause of the Illinois Constitution “ ‘is a restraint and limitation placed upon the exercise of [the condemnation power] as against the right of the private citizen except in those cases where public necessity requires the taking of private property for public use’ ”), quoting Department of Public Works & Buildings v. Ryan, 357 Ill. 150, 154 (1934).

2009App. 3d 312, 317 (1997) (“where parties agree to compensation so as to forestall a condemnation proceeding, no taking occurs”; thus, the takings clause was not triggered where, at the time of the sale, the government had not initiated eminent domain proceedings but had passed a resolution providing for condemnation in the event the parties did not agree on a purchase price); Towne v. Town of Libertyville, 190 Ill.

2009App. 3d 312, 317 (1997) ("where parties agree to compensation so as to forestall a condemnation proceeding, no taking occurs"; thus, the takings clause was not triggered where, at the time of the sale, the government had not initiated eminent domain proceedings but had passed a resolution providing for condemnation in the event the parties did not agree on a purchase price); Towne v. Town of Libertyville, 190 Ill.

2009The takings clause “ ‘is a restraint and limitation placed upon the exercise of [the condemnation power] as against the right of the private citizen except in those cases where public necessity requires the taking of private property for public use,’ ” and “[t]he legislature *** cannot, by delegating the power of eminent domain, dispense with constitutional requirements restricting its use, including the requirement of ‘necessity.’ ” YWCA, 86 Ill. 2d at 232-33 , quoting Ryan, 357 Ill. at 154 ; see also Davis v. Brown, 357 Ill.

2009Director of Finance v. Young Women’s Christian Ass’n, 86 Ill. 2d 219, 232 (1981) (YWCA) (the takings clause of the Illinois Constitution “ ‘is a restraint and limitation placed upon the exercise of [the condemnation power] as against the right of the private citizen except in those cases where public necessity requires the taking of private property for public use’ ”), quoting Department of Public Works & Buildings v. Ryan, 357 Ill. 150, 154 (1934).

2023See, e.g., Phillips v. Washington Legal Foundation, 524 U.S. 156 (1998) (for purposes of the takings clause, interest on funds held in lawyer’s trust account is the private property of the owner of the principal).

2013V; Phillips v. Washington Legal Foundation, 524 U.S. 156 (1998) (indicating that interest accruing on attorney trust accounts were private property within the meaning of the constitution’s takings clause); Canel v. Topinka, 212 Ill. 2d 311 , 818 N.E.2d 311 (2004) (same with respect to dividends and interest accruing on unclaimed property presumed to be abandoned and placed in the state’s custody for safekeeping).

2016As in other unconstitutional conditions cases in which someone refuses to cede a constitutional right in the face of coercive pressure, the impermissible denial of a governmental benefit is a constitutionally cognizable injury." Id. at ___, 133 S. Ct. at 2596 . ¶ 41 The Illinois Supreme Court has held that a takings clause analysis is not applicable to a municipality's imposition of a certain fee unless that fee is "inextricably tied to real property." Empress Casino Joliet Corp. v. Giannoulias, 231 Ill. 2d 62, 83 (2008).

2013Id. at 83 . ¶ 73 Finally, as to counts III and IV of the second amended complaint, the court has held that 36 1-12-0265) 1-12-1556)Cons. “[a]mendments that are filed without leave of court ‘are said to be a nullity which should be stricken.’ [Citation.]” Kurczaba v. Pollock, 318 Ill. App. 3d 686, 703 (2000).

2025Lingle v. Chevron U.S.A., Inc., 544 U.S. 528, 537 (2005).

2022In considering this factor, we look to whether the governmental action amounts to a physical invasion or instead merely affects property interests through “ ‘some public program adjusting the benefits and burdens of economic life to promote the common good.’ ” Lingle, 544 U.S. at 539 (quoting Penn Central, 438 U.S. at 124 ). ¶ 102 No physical invasion by defendant exists in this case.

2020Id. at 625-26 . ¶ 36 Similarly, in Sherman, the Second Circuit Court of Appeals held that a developer’s takings claim against the town was ripe even though the town zoning board had not yet reached an official decision on the developer’s application for subdivision approval.

2009As the Supreme Court explained, “[wjhile a landowner must give a land-use authority an opportunity to exercise its discretion, once it becomes clear that the agency lacks the discretion to permit any development, or the permissible uses of the property are known to a reasonable degree of certainty, a takings claim is likely to have ripened.” Palazzolo, 533 U.S. at 620 , 150 L.