Tuesday, August 19, 2014

Firing Range is Permitted By-Right in Business District

An appellate court recently overturned a municipal decision to deny a permit to allow a firing range on property located in a business district.  Platform I LLC v. Village of Lincolnwood Zoning Board of Appeals2014 IL App (1st) 133923.  The owner of the proposed firing range applied for a building permit to construct a shooting range on the second floor of the building above an existing gun shop, relying on the "health clubs and recreation" uses that were permitted by-right in the business district.  The village's zoning officer denied the application, stating that a firing range did not fall within the "recreation" use.  The owner appealed to the ZBA, which agreed with the zoning officer's interpretation.  The owner then appealed to the circuit court, which also upheld the zoning officer's interpretation, holding that the court was required to defer to the village’s interpretation of its own ordinance.  

On appeal, the appellate court reviewed the village's zoning ordinance, and specifically the use list in the business district that expressly allowed "health club or recreation facility, private" as a permitted by-right use.  The court that the “plain meaning” of “recreation” includes activities for entertainment and amusement, and the zoning ordinance includes “sports” as an aspect of recreation.  The court also said that “common sense dictates that target shooting is also considered a sport as it is an Olympic sporting event and a recognized sporting activity within our national college associations and 4-H clubs.” As a result, the court held that the proposed shooting range was permitted in the business district and the permit should have been issued.

The village has since amended its zoning ordinance to specifically address shooting ranges, to exclude them from the definition of "recreation." However, the court did not address the subsequent amendment, instead applying the zoning ordinance as it existed on the date the owner filed its application for a permit to develop the shooting range.

Post Authored by Julie Tappendorf, Ancel Glink

Monday, August 18, 2014

Court Questions County Board Members' Practice of Leading Prayers at Meetings

Our friends at RLUIPA Defense have been following cases around the country post-Town of Greece v. Galloway - that is the U.S. Supreme Court case that upheld a town board's practice of inviting clergy to lead religious prayer before government meetings.  The most recent case comes out of Virginia, Hudson v. Pittsylvania County, Virginia, (WD VA, Aug. 4, 2014).  This case involved a challenge to county board members' practice of  opening meetings with prayers.  The Hudson court distinguished Town of Greece because the county board members not only chose but also led the prayers at each meeting. Even more troubling to the court is that the county board members often directed the assembled citizens to participate in the prayers by asking them to stand. The court determined that the county “involved itself ‘in religious matters to a far greater degree’ than was the case in Town of Greece.”  The court refused to lift an injunction against the practice.

You can read more about the case here.

Friday, August 15, 2014

PAC Requires "Reasonable Search" for Records for FOIA

A reporter filed a FOIA request with Chicago Public Schools (CPS) seeking various records relating to CPS athletic association records, including contracts, receipts, eligibility sheets, and ticket proceeds.  CPS provided eligibility sheets, but did not respond or address the other requested records. After the reporter contacted CPS about the other records, CPS responded that it had searched its contract records but did not locate any responsive documents. CPS also asserted that it did not have a method for recording ticket sales.  

The reporter filed a request for review with the PAC questioning CPS' response that it did not possess responsive records.  In response, CPS stated that it had no central reporting requirement for ticket sales at athletic events, and no way of tallying that information.  

The PAC first noted that FOIA requires a public body to conduct a "reasonable search tailored to the nature of a particular request."  The PAC cited no provision of the Illinois FOIA or any Illinois case to support its statement, instead relying on three federal cases interpreting the federal statute. In any event, the PAC determined that the CPS violated FOIA by failing to demonstrate that it had conducted an adequate search of the record systems of every one of the individual schools within the CPS system for the responsive documents.  The PAC rejected CPS' argument that to do so would be unduly burdensome because CPS failed to extend an opportunity to the reporter to narrow the request. The PAC ordered CPS to search all recordkeeping systems, both central and for each individual school in the CPS system, for all gate receipts, ticket sale proceeds, bank deposits, and all other records.

You can read the opinion here:  PAC Op. 14-007 (August 14, 2014)

Post Authored by Julie Tappendorf, Ancel Glink

Thursday, August 14, 2014

Employer Could Be Liable for Employee's Murder of Family

Christopher Coleman was convicted of the murder of his wife and two sons in 2009.  At the time of the murder, Coleman was employed as a security officer for Joyce Meyer Ministries (JMM).  In the months leading up to the murders, he used his work computer to email death threats to himself, his family, and his employer.  His family's estate filed a wrongful death action against JMM, alleging that JMM was negligent in not protecting the decedents from threatened harm.  The complaint also alleged a "negligent retention" claim against JMM.  JMM filed a motion to dismiss arguing that the complaint did not state a cause of action, and the trial court agreed, dismissing the entire complaint.  The estate appealed.  Regions Bank v. Joyce Meyer Ministries, Inc., 2014 IL App (5th) 130193.

With respect to the estate's negligent retention claim, the appellate court agreed with the trial court that it should be dismissed.  Although there are reported cases that recognize that an employer may be held liable for the negligent hiring and retention of an employee who intentionally harms someone while acting outside the scope of employment, the appellate court concluded that the estate's complaint did not contain sufficient facts to support this type of a claim.  

However, with respect to the estate's claim that JMM was negligent in not protecting the decedents, the appellate court held that the complaint did state sufficient facts to move this case forward.  First, the appellate court determined that  JMM had an electronic communications policy that prohibited use of its work computers for harassment or abusive materials, among other prohibited activities.  JMM had the right to monitor and inspect communications sent on its equipment, and JMM had the right to take disciplinary action against violators.  The complaint alleged that JMM knew about Coleman's use of his work computer for emailing the death threats, and actually voluntarily undertook to investigate the source of those threats.  The complaint also alleged that JMM knew that the decedents needed protection from Coleman, yet did not provide that protection when it failed to enforce its electronic communication policy and discipline Coleman for the violations.  The case will now go back to the trial court for a trial on the merits of the surviving negligence claim.

What is troubling about this case is that the appellate court seemed to skip over the "reasonable foreseeability" prong of the duty analysis for a negligence claim.  The trial court had dismissed this count based on that particular prong, finding that JMM could not have "reasonably foreseen" that Coleman would brutally murder his family based on these emails.  This case would seem to require an employer to be much more active in monitoring the use of its computers and other electronic equipment and investigate and act on violations even where those violations are not work-related in any way.  

Post Authored by Julie Tappendorf, Ancel Glink

Wednesday, August 13, 2014

Police Action Triggers Immunity Under Tort Immunity Act

In Payne v. City of Chicago, 2014 ILL App (1st) 123010 (July 16, 2014), relatives of the plaintiff called police for assistance after he took crack cocaine and began hallucinating, destroying property, and causing injuries to himself.  Chicago Police arrived at the scene, and were forced to TASER the plaintiff to calm him.  However, the plaintiff wound up falling out of the second story window, causing him to suffer severe injuries and become paralyzed.  It was unclear whether the plaintiff jumped or fell out of the window.

Plaintiff sued the city for battery, alleging that the willful and wanton conduct exception to the Tort Immunity Act applied.  The city denied any wrongdoing based on Sections 4-102 and 2-202 of the Tort Immunity Act.  Section 4-102 provides the city blanket immunity for failing to provide adequate police protection.  However, section 2-202 provides a willful and wanton exception to immunity during the enforcement of law.    

After review of the Tort Immunity Act, the trial court ruled in favor of the city, finding that the Act provided immunity.  On appeal, the Appellate Court affirmed.  The Appellate Court found that the willful and wanton exception to the Act did not apply as the police were not there to enforce any law.  Rather, they were there to provide a police service after being called by plaintiff’s family to provide assistance.  The Court found that the blanket immunity provided in Section 4-102 applied in this scenario because the officers were providing a police service.  

Post Authored by Erin Baker, Ancel Glink

Tuesday, August 12, 2014

Delay in Acting on Wind Permits Not Unconstitutional

The 7th Circuit Court of Appeals recently dismissed a case challenging a local governmental body's actions regarding an application for permits for a proposed wind farm.  CEnergy-Glenmore Wind Farm #1, LLC v. Town of Glenmore, (7th Cir. August 7, 2014).  

The plaintiff sought building permits from the town to build seven wind turbines.  The project was highly controversial, and angry citizens attend town board meetings to protest the proposed wind farm project.  After months of meetings, the town board did finally approve the building permit applications at a public meeting.  However, after citizens threatened the chair and board members, the board voted to rescind its approval at that same meeting.  Then, a week later, the town board rescinded its decision to rescind approval.  The approvals were never issued, however, because of deficiencies in the applications.  

Since CEnergy failed to obtain the necessary permits by March 1st, it lost its contract rights to build the wind farm project, and it sued the town claiming that the delay in granting the permits violated its due process rights and vested rights.  The district court disagreed, finding that the plaintiff failed to show that its due process rights were violated.  The court also held that plaintiff should have sought state law relief to challenge the local land use decision rather than file a federal court action.

The 7th Circuit agreed with the district court, finding that the plaintiff's due process claims fail because the town board's actions were not arbitrary and because CEnergy failed to seek state law relief.  The court noted that in order to be "arbitrary," a land use decision must "shock the conscience" or be "egregious official conduct."  Here, the town board's decision to delay action on the building permits because of popular opposition to the project was a "rational and legitimate reason for a legislature to delay making a decision."   In any event, plaintiff should have brought its land use case to state court, which offers a variety of remedies, including a writ of mandamus.  

Post Authored by Julie Tappendorf, Ancel Glink

Monday, August 11, 2014

Ancel Glink Launches A New Employment Law Blog

Please extend a warm welcome to Ancel Glink's brand new employment-related blog, The Workplace Report, which just came online.  The blog will provide readers with breaking news, insights, and legal analysis on important labor and employment issues.  Public and private employers and employees will want to check in daily to stay current in what affects their workplaces.

A sample of a few of the blog posts you can find on The Workplace Report:

Have you Checked Your COBRA Notices Recently?  

A new requirement of the Affordable Care Act (aka Obamacare) requires employers with 20 or more employees to notify employees and anyone else covered under their health insurance plans of a COBRA eligibility.  Read more here.

Job Opportunities for Qualified Applicants Act

A new state law, effective January 1, 2015, prohibits private employers who employee 15 or more employees from considering or requiring the disclosure of an applicant's criminal record until () it is determined the applicant is qualified for a position and (2) the applicant is selected for an interview. Read more here.

Scrub Your Mouth Out with Soap!  The NLRB Chastises Boss for Firing Foul-Mouthed Employee

A recent NLRB decision found that an employer violated the National Labor Relations Act after it fired an employee for swearing at the boss during a meeting.  The NLRB determined that the employee was engaging in protected activity.  Read more here.

Check out The Workplace Report here

Friday, August 8, 2014

County 1, Bears 0 in Amusement Tax Case

Cook County lost its use tax case earlier this week, but pulled out a win in another tax case involving the county's 3% amusement tax. 

The Chicago Bears Football Club (Bears) had for years calculated the county's amusement tax on the value of a seat, excluding other amenities that come with certain seat purchases such as club access and membership, special parking privileges, and luxury suite access.  So, for example, if a club seat ticket price cost $235, the Bears would separate out the "seat" price of $77.27 for purposes of taxation.  The county challenged this  practice, arguing that the entire seat charge should be subject to taxation.  An administrative law judge agreed, and assessed the Bears delinquent taxes and interest of more than $4 million.  The trial court reversed the ALJ's decision, finding in favor of the Bears.  

On appeal, the appellate court ruled against the Bears, concluding that the "amenities associated with higher priced tickets cannot be separated from the price to enter the venue and view the event and they are, therefore, subject to the County amusement tax."

County 1, Bears 0.

Let's hope the Bears fare a little better against the Eagles tonight in their first 2014 preseason game.

Thursday, August 7, 2014

Cook County's "Use Tax" is an Improper Sales Tax

Cook County's "use tax" was found invalid by an appellate court this week in an unpublished opinion.  Reed Smith LLP v. Zahra Ali, Cook County Dept. of Revenue, 2014 IL App (1st) 132646-U (Aug. 4, 2014).  In 2012, the Cook County Board had enacted an ordinance imposing a tax on the "value" of nontitled personal property that was purchased outside of the county when that property is "first subject to use" in the county.  Cook County residents and businesses would be affected by the tax which would be imposed on property they purpose outside of their resident county.  The 1.25% tax (later reduced to .75%) would apply to any property with a value of more than $3,500.  Taxpayers were required to file monthly returns and remit the appropriate taxes. 

Plaintiffs (business owners and residents of Cook County) filed lawsuits against the county claiming the ordinance violated state statute and the stated and federal constitutions.  The trial court ruled in favor of the plaintiffs and against the county.  On appeal, the appellate court affirmed the trial court, finding that the so-called "use tax" was really a sales tax on the purchase of personal property.  The counties code expressly provides that "no home rule county has the authority to impose, pursuant to its home rule authority, a ... use tax based on...the selling or purchase of said tangible personal property."  The court determined that Cook County's "use tax" fell squarely within this statutory prohibition and was, therefore, is improper and not authorized.

Post Authored by Julie Tappendorf, Ancel Glink

Wednesday, August 6, 2014

2 Great Land Use Programs You Shouldn't Miss in August

Our first program is scheduled for August 14th.  Ancel Glink attorneys Dan Bolin and Greg Jones will participate in a webinar titled "Guns, Pot, and Sex:  Regulating Controversial Land Uses" hosted by the International Municipal Lawyers Association (IMLA).

A summary of the session is below:
The title says it all. IMLA shamelessly plays to your interests in sensational and prurient subjects -- the only thing that might be done to get a better turnout for this teleconference would be to have Channing Tatum and Miley Cyrus on the panel. Guns, cannabis, sexually oriented businesses are hot button issues and often have blighting effects. Learn how to deal with them in this teleconference.
The webinar is scheduled for noon to 1:00 pm (central time).  You can learn more about it on IMLA's website here and register here.

Our second program will be on August 21st. Ancel Glink attorney Dan Bolin will participate in the panel presentation "Realizing Potential:  Land Banks, Demolition & Planning for Vacant Land" hosted by the American Planning Association - Chicago Metro Section.  

A summary of the session is below:
The Great Recession has shown us that no community is immune to blight, leaving municipalities throughout the country in need of strategies to stabilize neighborhoods and commercial districts stressed by high rates of vacancy.  In some cases, communities are repurposing vacant properties for entirely different uses.  In other instances, properties with no clearly defined future are being repositioned for a variety of potential uses.  Come learn how other communities are using new and innovative tools to win the fight against blight and vacancy.
Details about the seminar are below:

WHEN: Thursday, August 21, 2014, 9:00 am to 12:00 pm
WHERE: Metcalfe Federal Building, Lake Michigan Room, 12th Floor, 77 W. Jackson Blvd, Chicago IL 60604
COST: $15 paid at the door ($5 for students); checks payable to APA-CMS
RSVP: To RSVP, please email cms@ilapa.org by August 19th

Tuesday, August 5, 2014

Road Remains Public Until Vacated or Abandoned

A public roadway will not be deemed "abandoned" simply because a public body stops maintaining it for decades, even if the road falls into disrepair.  Chamness v. Union County, 2014 IL 5th 130381 (Aug. 4, 2014)

In this case, the county and two property owners adjacent to a roadway disputed whether the roadway was a public roadway or had been abandoned by the county.  The plaintiff, one of the adjacent property owners argued that the county had abandoned the road when it stopped maintaining it 50 years ago and that title should be vested with plaintiff.  The county and the other adjacent property owner disagreed, arguing that the road remained a public roadway even though the county had stopped maintaining the roadway almost 50 years ago.  

The trial court agreed with the county and defendant owner, holding that abandonment of a public roadway will only be found when the public has waived the right to the road or where the necessity for the road ceases to exist.  On appeal, the appellate court agreed with the trial court, finding that an established public road "does not lose its character as a public road unless it is either vacated by the authorities in the manner prescribed by statute or abandoned."  In this case, the defendant owner's property was landlocked, and there was no other road that would provide access. There was also no evidence that the county had formally vacated the road.  The fact that the county had not maintained the road in decades and the road had fallen into disrepair did not change the fact that the road was necessary for access.  

Post Authored by Julie Tappendorf, Ancel Glink

Monday, August 4, 2014

Malicious Prosecution Claim Not Proper in Federal Court

Plaintiff filed a federal lawsuit against two Chicago police officers and the City for malicious prosecution after he was acquitted in a state court of aggravated battery.  He claimed that the officers had prepared false police reports for the prosecutor to use to charge him with aggravated battery.  The district court had dismissed his case, however, because federal lawsuits for malicious prosecution are allowed only if the state in which the plaintiff is prosecuted does not provide an adequate remedy.  Because Illinois does, the plaintiff could not bring a federal case against the City or the police officers.  The plaintiff appealed to the Seventh Circuit, which upheld the dismissal of the case in Llovet v. City of Chicago (7th Cir. August 1, 2014).  

The Seventh Circuit acknowledged that other federal courts of appeals do authorize federal claims of malicious prosecution regardless of whether a state remedy exists.  The Court also acknowledged that a federal claim of malicious prosecution may even be permissible in Illinois under certain circumstances (i.e., the claim is based on an unlawful seizure).  Here, however, the plaintiff's initial "seizure" was supported by probable cause, and the court rejected the plaintiff's alternative "continuing seizure" theory.  Therefore, plaintiff's malicious prosecution claim was properly dismissed.

Post Authored by Julie Tappendorf, Ancel Glink