Thursday, October 23, 2014

San Francisco's Rental Ordinance Unconstitutional

Our friends at Inversecondemnation.com recently posted about a case striking down San Francisco's rental ordinance as violating the Takings Clause of the U.S. Constitution: Federal Court: San Francisco's Housing ExactionViolates Nollan-Dolan-Koontz

San Francisco had enacted an ordinance that required property owners who rent their properties to get a permit before they could stop renting their property out to tenants.  The ordinance also required the owners to pay cash to any displaced tenant in the amount of 24 times the difference between the tenant's current rent and the fair market value of a comparable unit in San Francisco. The plaintiffs, property owners who wanted out of the rental business were subject to "relocation payments" amounting to $118,000 for one owner and more than $1 million for another property owner, sued the City to challenge the rental ordinance as unconstitutional.

The district court agreed with the owners, finding San Francisco's ordinance unconstitutional because the relocation payments did not meet either the "essential nexus" or the "rough proportionality" test established by the U.S. Supreme Court in Nollan-Dolan-Koontz.  You can read more about the case and a more detailed summary of the rationale behind the district court's decision here.

Post Authored by Julie Tappendorf

Wednesday, October 22, 2014

School District Ordered to Tear Down Bleachers

You may recall that we previously posted about a lawsuit filed by neighboring property owners against a school district challenging the high school's installment of bleachers without obtaining the proper zoning approvals.  You can read about the trial court ruling here and the appellate court ruling here.  Both the trial court and the appellate court had ruled in favor of the neighbors and against the school district, finding that the school district was obligated to comply with municipal zoning regulations.   We have two updates on this case:

First, the school district has filed an appeal asking the Illinois Supreme Court to hear the case and reverse the lower court rulings.  The Supreme Court has not yet decided whether it will hear the case but we will keep you posted.

Second, the trial court judge recently ordered that the school district remove the bleachers to comply with the trial and appellate court rulings.  According to the order, the school district has until December 1st to comply (that allows the school to finish out the current football season), although it is likely the school district will appeal that ruling as well.  

Post Authored by Julie Tappendorf

Tuesday, October 21, 2014

Public Construction Bond Act Protects Village from Subcontractor Claim


The Illinois Supreme Court recently ruled in favor of the Village of Antioch in Lake County Grading Company LLC v. Village of Antioch, 2014 Il 115805 (October17, 2014). This case involved an interpretation of the Public Construction Bond Act (30 ILCS 550/1). The Village had entered into a contract with Neumann Homes for the construction of public improvements within subdivisions developed by Neumann. Lake County Grading performed work for Neumann on the public improvements.  Neumann failed to pay Lake County Grading and then Neumann filed for bankruptcy.  Lake County Grading sued the Village seeking payment for work performed.

You may remember that we had previously reported on the appellate court decision in this case that was decided last year.  In its decision, the appellate court had ruled in favor of Lake County Grading, finding that because the Village had failed to obtain a payment bond as required under the Public Construction Bond Act, Lake County Grading could assert a third party beneficiary claim against the Village.

The Village appealed the adverse ruling to the Illinois Supreme Court.  Fortunately, the Supreme Court interpreted the Public Construction Bond Act more favorably to the Village, finding that the Village's requirement that Neumann Homes post a performance bond satisfied the Public Construction Bond Act because the statute deems payment to be part of a bond for public improvements under the Act.  As a result, Lake County Grading’s only recourse is against the bond company, not the Village.  Unfortunately for Lake County Grading, the six (6) month period to file claims under the bond passed so Lake County Grading is left without a remedy.

The Supreme Court's ruling provides protection to municipalities that fail to obtain both a payment and performance bond in connection with public improvement contracts.  However, it is important to note that municipalities that fail to obtain any bond, either performance or payment, could be faced with a third party beneficiary claims for payment. 

Post Authored by Steve Mahrt, Ancel Glink

Monday, October 20, 2014

Supreme Court Takes on Hotel Ordinance Case

The U.S. Supreme Court is taking new cases that it will hear and decide in the future, some of which may be of interest to local governments, including a case the Court accepted today.  In City of Los Angeles v. Patel, the 9th Circuit Court of Appeals struck down a City ordinance that required hotels to allow police to inspect hotel guest records, including the guest's name, address, make, model and license plate number of the guest's vehicle, and the guest's room number. The court of appeals held that the ordinance violated the Fourth Amendment as an unlawful warrantless search because it authorized inspections of these records without giving hotel owners any ability to challenge the reasonableness of the inspection in court before penalties would be imposed under the ordinance.

The Supreme Court will consider the following two issues in the case: 

(1) Whether facial challenges to ordinances and statutes are permitted under the Fourth Amendment; and 

(2) whether a hotel has an expectation of privacy under the Fourth Amendment in a hotel guest registry where the guest-supplied information is mandated by law and an ordinance authorizes the police to inspect the registry, and if so, whether the ordinance is facially unconstitutional under the Fourth Amendment unless it expressly provides for pre-compliance judicial review before the police can inspect the registry.

You can read more on Scotusblog.com.

Post Authored by Julie Tappendorf

Thursday, October 16, 2014

ILA Conference Materials

This week, Ancel Glink attended the Illinois Library Association's annual conference in Springfield. Our attorneys presented at three of the conference sessions on topics of interest to library officials and employees.  For those of you who could not attend the conference or our sessions (or if you are interested in FOIA, meeting procedures, and workers' compensation issues), we have provided links to the handout materials below:

Library Board Wars and Power Plays:  How to Resolve Them and How to Avoid Them
Speakers:  Julie Tappendorf & Britt Isaly
Handout Materials:

Workers' Compensation Claims by Library Employees and Common Defenses
Speaker:  Britt Isaly
Handout Materials:
  
Keep Calm and Carry On - Responding to FOIA Requests
Speakers:   Julie Tappendorf (Ancel Glink), Peggy Danhof, George H. Scheetz, Holly Sorenson, Lynn Elam, and Tim Jarzemsky
Handout Materials:

It was a pleasure visiting with all of our library friends this week, and we hope you enjoyed the conference!

Post Authored by Julie Tappendorf

Wednesday, October 15, 2014

Prisoner Not Entitled to Copies under FOIA

A little known FOIA provision exempts from disclosure "records requested by persons committed to the Department of Corrections if those materials are available in the library of the correctional facility where the inmate is confined."  5 ILCS 140/7(1)(e-5).  That exemption is the subject of PAC opinion 13 for 2014.   
 
In PAC Op. 14-013, the PAC determined that IDOC did not violate FOIA by refusing to make copies of Administrative Directives for a prisoner where those documents were available for inspection in the prison library.  The PAC relied on legislative history demonstrating that the purpose of this exemption was to preclude inmates from using FOIA to obtain records that were already available to them in the library.
 
So, no public body violation in this opinion, although the opinion is pretty limited in its application, since the cited exemption only applies to the Department of Corrections.  Still, it's a nice change from "public body violates..."
 
Post Authored by Julie Tappendorf

Tuesday, October 14, 2014

Clerk Properly Refused to Certify Referendum

Petitioners filed petitions for a referendum to prohibit the sale of liquor in a Chicago precinct.  The City Clerk refused to certify the petition, however.  The petitioners filed a lawsuit asking the court to order the Clerk to certify the petitions, arguing that the petitions were in apparent conformity with state law.  The trial court and appellate courts denied the petitioners any relief, finding that the petitions were not in apparent conformity due to a number of deficiencies.  Mabwa v. Mendoza, 2014 IL App (1st) 142771 (Oct. 7, 2014).

The Illinois Liquor Control Act grants citizens the right to restrict or prohibit the sale of liquor in their own precinct, but only after a referendum vote on the question.  To initiate that question, a petition must be filed in proper form with the city clerk.  Under Illinois election law, a city clerk can refuse to certify a referendum (placing the question on the ballot) if a petition do not 'on its face" comply with state law.  The Liquor Act requires the petition to be in a particular form under that statue and to comply with the Election Code requirements.  These requirements include a circulator's statement that the signatures were not signed more than 4 months before the filing of the petition, among many other requirements.  In this case, the clerk determined that some of the signatures were undated, certain petitions did not include the required circulator statement, and at least one voter appeared to sign the petition outside of the four month filing period.  As a result, the clerk had no obligation to certify the deficient referendum question.

Post Authored by Julie Tappendorf

Monday, October 13, 2014

Wisconsin's Voter ID Law is Constitutional

You might remember that the U.S. Supreme Court upheld Indiana's voter ID law in a 2008 case called Crawford v. Marion County Election Board.  The Supreme Court determined that the Indiana law requiring voters to present photo ID at the polls was consistent with the constitution.  Earlier this year, a federal court in Wisconsin struck down a similar law in Wisconsin.  That case made its way to the Seventh Circuit Court of Appeals earlier this week.  That court reversed the district court's decision based on the U.S. Supreme Court's ruling in Crawford.  Frank v. Walker (7th Cir. Oct. 6, 2014).

The court of appeals discussed the Supreme Court's justifications for upholding a voter ID law.  First, the Court had noted that a commission chaired by former President Carter had recommended the use of photo ID to prevent voter fraud.  Second, the Help America Vote Act of 2002 requires states to verify a person's eligibility to vote through photo ID and other state-assigned identifiers.  Third, many people register to vote when they get drivers' licenses, so the two are linked from the outset.  Finally, the Supreme Court had concluded that preventing voter fraud and preserving the integrity of elections justified a photo ID requirement, and that the inconvenience of obtaining a photo ID was not a "substantial burden" on the right to vote.

Based on the Supreme Court's stated justifications in Crawford, the court of appeals did not find Wisconsin's voter ID law to be any more burdensome on voters than Indiana's law was.  The court also recognized that 91% of registered voters have qualifying photo ID, and a 9% differential did not effect disenfranchisement.  The court concluded, therefore, that Wisconsin's voter ID law did not violate the constitution.

UPDATE:  A few days after this case was decided, Judge Posner requested that the court of appeals take a vote to hear the appeal en banc.  That vote failed.  Judge Posner's dissenting opinion (the side that voted in favor of having the case heard by the whole court) is an interesting read - you can read it here.

Post Authored by Julie Tappendorf

Friday, October 10, 2014

Vicious Dog Determination Upheld by Court

Under the Illinois Animal Control Act, a court has discretion to determine that a dog is a "vicious dog" within the meaning of the statute and order that the dog be euthanized.  That is what happened in People v. Helm, 2014 IL App (5th )130325 (Oct. 6, 2014).

The defendant's pit bull and husky were off-leash when they encountered Kenneth Whittaker and his two dogs.  The husky charged one of Whittaker's dogs and began attacking it.  When Whittaker attempted to stop the husky's attack, the pit bull grabbed his arm in his jaws, clamped down, and bit Whittaker.  The defendant showed up and called his dogs off, but not before Whittaker was wounded.  The state brought an action against the defendant under the Animal Control Act to have the pit bull declared a vicious dog.  As part of its case, the state brought evidence that the pit bull had bitten two other individuals and had been declared a "dangerous dog" under the statute previously.  Based on those previous determinations, the defendant was supposed to keep the pit bull confined or muzzled when in public. 

The defendant countered that the state had no authority to declare the pit bull a vicious dog because the dog was protecting a member of the household (the husky), an exemption under the Act.  The trial court disagreed, finding that exemption to be discretionary, not mandatory. As a result, the court declared the dog a "vicious dog" under the Act and ordered him humanely euthanized. 

On appeal, the appellate court agreed with the trial court that the "protection of others" exemption in the Act was not mandatory, and while a court might find a dog's conduct in a particular situation justified, it was not required to do so.  In this case, the appellate court determined that the previous biting incidents, the two previous declarations finding the dog to be a "dangerous dog" under the Act, and the defendant's continued failure to keep the dog restrained to protect the public justified the trial court's determination that the dog was a vicious dog. 

So, how does this case affect municipalities?  Any community that has adopted its own local animal control ordinances under the authority of the Animal Control Act might be interested in how the appellate court interpreted the Act's "protection of others" exemption to be discretionary and not mandatory.  The court also gave the state a lot of leeway in enforcing the vicious dog provisions of the Act where the evidence at trial showed that there were multiple incidents and previous designations under the Act's dangerous dog designations.  

Post Authored by Julie Tappendorf

Thursday, October 9, 2014

Important to Double-Check Objector Petition Filing Deadine

The 2015 Election and Campaign Finance Calendar published by the State Board of Elections says that its deadline for the filing of objections to candidate nomination papers for the upcoming April 7, 2015, election is December 30, 2014.  However, that date may not apply to all municipalities, depending on their year-end holiday schedule.  In fact, the objection-filing deadline in some municipalities may be as late as January 6, 2015.  It is, therefore, important for municipalities to calculate their objection-filing period for the April election based on the holiday schedule of their own city or village.

The Election Code states that objections to candidate nomination papers may be filed within five “business days” following the last day of the candidate petition-filing period. 10 ILCS 5/10-8. For the April 2015 election, the candidate petition-filing period ends on December 22, 2014, in all jurisdictions. However, different municipalities have different holiday schedules, and that may affect the way the “business days” are counted for the five-day objection-filing period.

For purposes of calculating election-related dates and deadlines, the Election Code defines the term “business day” as “any day in which the office of an election authority, local election official or the State Board of Elections is open to the public for a minimum of 7 hours.” 10 ILCS 5/1-3(22). So, for example, if a municipal office will be closing early on Christmas Eve (Dec. 24) or New Year’s Eve (Dec. 31), in addition to being closed all day for Christmas and New Year’s Day, the objection-filing deadline will be different than the State Board’s schedule.

Below is a table showing the most common objection-filing deadlines for the April 2015 election. “Open” means open for at least 7 hours, and “Closed” means closed all day, or open for less than 7 hours (including “half days”):


Dec. 23
Dec. 24
Dec. 25
Dec. 26
Dec. 29
Dec. 30
Dec. 31
Jan.
1
Jan.
2
Objection-filing DEADLINE
Open
Open
Closed
Open
Open
Open
Dec. 30
Open
Closed
Closed
Open
Open
Open
Open
Dec. 31
Open
Closed
Closed
Open
Open
Open
Closed
Closed
Open
Jan. 2
Open
Closed
Closed
Closed
Open
Open
Closed
Closed
Closed
Jan. 6

Because the dates can vary significantly from municipality to municipality, you should check with your local attorney to confirm the objection filing deadline in your community.

Post Authored by Adam Lasker, Ancel Glink

Wednesday, October 8, 2014

Webcast on Controversial Land Uses

Don't miss the upcoming webinar "Sex, Guns & Drugs: Planning for Controversial Land Uses" hosted by the Planning and Law Division of the American Planning Association and featuring Ancel Glink attorneys Greg Jones and Dan Bolin. 

More information about the webcast is below and you can click on the link to register for the webinar:

Webcast—Sex, Guns & Drugs:  Planning for Controversial Land Uses

October 22, 2014
1:00 – 2:30 PM CST

CM 1.50
L 1.50

The Planning and Law Division of the American Planning Association is pleased to host the upcoming webcast Sex, Guns & Drugs:  Planning for Controversial Land Uses on Wednesday, October 22, 2014 from 1:00 to 2:30 p.m. CST. Registration is $20 for PLD members and $40 for non members, and $45 for webinar registration plus a Planning and Law Division membership.  Presented by Daniel J. Bolin and Gregory W. Jones of Ancel Glink, this webcast will explore if and where controversial businesses belong in communities.
 
Learn more and register

 

Subdivision's Petition to Change School Districts Should Have Been Granted

Homeowners filed a petition to disconnect their subdivision from one school district and annex it to another school district under a provision of the Illinois School Code that authorizes this procedure. The petition had been signed by at least 2/3 of the voters in the subdivision.  The Lake County regional board of school trustees conducted a public hearing, and the petitioners presented evidence that the change in schools would provide an educational advantage to the students, would increase home values in the subdivision, and would not be a financial detriment to the districts. At the conclusion of the hearing, the board denied the petition.  The board based its ruling on a number of factors, including that the change would not decrease travel time for students and that the subdivision did not have a "community of interest" with the new schools.  

The subdivision appealed to the trial court, which reversed the board's decision, and disagreed with the board's findings. Specifically, the trial court determined that the new schools would be closer and would have a safer route.  The trial court also found that the board erred in failing to consider the petitioners' preferences. 

On appeal, the appellate court affirmed the trial court, agreeing that the regional board erred in denying the subdivision's petition to change school districts.  Merchant v. Regional Board of School Trustees of Lake County, 2014 IL App (2d) 131277 (Sept. 30, 2014).  The appellate court went into great detail about the detachment process, and the standards that petitioners must establish under the School Code for detachment.   After weighing all of the factors, the appellate court determined that the petitioners established sufficient evidence in favor of their application to change school districts, and the regional board erred in denying that petition.

Post Authored by Julie Tappendorf