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Blog comments do not reflect the views or opinions of the Author or Ancel Glink. Some of the content may be considered attorney advertising material under the applicable rules of certain states. Prior results do not guarantee a similar outcome. Please read our full disclaimer

Tuesday, November 13, 2018

Quorum Forum Episode 13.5 (Part 2 of Our Transgender People Episode) is Now Live!



Part 2 of our Quorum Forum Podcast Episode on Transgender People is now live.  Information about the podcast is below:


In part two of their discussion at the 40th Illinois Public Employer Labor Relations Association Annual Conference, transgender panelist Sophie Michaels, Palatine Park District’s Michael Clark, and Ancel Glink’s Keri-Lyn Krafthefer talk about best practices in policy development for all-inclusive public facilities, staff training, and options available to make facilities accommodating to transgender individuals. Specifically, Mike talks about his experience making public facilities accessible to transgender individuals. 

You can access this episode here.

Friday, November 9, 2018

Appellate Court Says Illegal Use Becomes Legal Upon Annexation



In a break from long-established precedent, the First District Appellate Court recently created a new category of legal nonconforming uses in situations involving the annexation of illegal uses. 

In Giannakopoulos v. Adams, No.11 CH 17516 (Oct. 29, 2018), a municipality annexed property containing an excavation business that included the storing and servicing of commercial vehicles and equipment. No annexation agreement was entered into between the parties and the municipality did not rezone the property or grant zoning relief when it annexed the property to the municipality. The use was illegal at its inception in 1954 under the Cook County Zoning Code and remained an illegal use thereafter, first under county zoning and, upon annexation, under the municipality’s residential zoning designation.
 
In 2011, after being unsuccessful in getting the municipality to enforce its zoning regulations, a next door neighbor brought suit against the excavation business under the Adjoining Landowner Act, 65 ILCS 5/11-13-15, seeking to enjoin the operation of the illegal use.  The trial court ruled in favor of the plaintiff, holding that the municipality had no authority as a non-home rule unit of government to legalize the defendants’ use of their property unless it first complied with one of the three procedures set forth in the zoning statutes (map amendment, variance, or annexation agreement).  

On appeal, the First District disagreed, holding that because the illegal use was “established” prior to annexation, it automatically became a legal nonconforming use “as-is” when the municipality annexed the property.  In other words, the appellate court found that annexation, in and of itself, can convert an illegal use into a legal use without the annexing authority needing to comply with state zoning laws.

A petition for leave to file an appeal with the Illinois Supreme Court has since been filed.

Post Authored by David Warner, Ancel Glink

Disclosure:  Ancel Glink attorneys represented the plaintiff before both the trial court and appellate court.

Thursday, November 8, 2018

Age Discrimination Law Applies to State and Local Governments Regardless of Number of Employees



The U.S. Supreme Court weighed in on the application of the federal Age Discrimination in Employment Act (ADEA) to small state and local government employers in the recent decision Mt. Lemmon Fire District v. Guido.

The Court ruled 8-0 that the ADEA applies to state and local governments regardless of the number of employees employed by the unit of government. The ADEA defines “employer” as a “person engaged in an industry affecting commerce who has 20 or more employees” or “(1) any agent of such a person, and (2) a State or political subdivision of a State.” Some government agencies had interpreted the definition to mean that the law only applied to government employers with 20 or more employees. In an opinion written by Justice Ginsburg, the U.S. Supreme Court disagreed, holding that the definition of “employer” separated private employers with 20 or more employees from state and local government employers with any number of employees.

The lawsuit involved a challenge against the District when it laid off two employees who claimed they were terminated because of their age in violation of the ADEA. The District argued that the ADEA did not apply because the District employs fewer than 20 people. The Ninth Circuit disagreed, and the case was appealed to the U.S. Supreme Court which upheld the Ninth Circuit’s ruling in favor of the two employees.

This is a significant ruling for small units of government that may have taken the position that they were not subject to the ADEA because they employed less than 20 people. 

Tuesday, November 6, 2018

Service Requirements of Election Code Must Be Strictly Followed


Doesn't it seems appropriate to report on an election case on Election Day? Quinn v. Board of Election Commissioners for the City of Chicago Electoral Board, 2018 IL App (1st) 182087

A group of citizens filed petitions for two binding referendum questions that would have been placed on today's ballot in Chicago. The ballot questions would have asked voters whether the office of Chicago mayor should be subject to a term limit of two terms and whether Chicago should establish an elected position for a "Consumer Advocate for taxpayer and consumers." Objections were filed challenging the two referenda, and a hearing officer for the Board of Election Commissioners for the Chicago Electoral Board held a hearing on the objections. At the conclusion of the hearing, and based on the hearing officer's recommendations, the Electoral Board issued a ruling that the two referenda not be on the ballot.

Former Governor Pat Quinn and others filed a lawsuit to appeal the Electoral Board's ruling. The objectors filed a motion to dismiss, claiming the court did not have jurisdiction over the lawsuit because the appellants failed to comply with the service requirements that require service on all parties within 5 days. Although the lawsuit was served on the Electoral Board, the Board of Elections, and the attorney for the objectors on September 17th, the objectors were not personally served  until September 19th. The trial court granted the motion to dismiss based on the failure to comply with the service requirements.

The appellate court agreed with the trial court, holding that the service requirements in section 10-10.1 of the Election Code must be strictly followed, and a court has no jurisdiction to review an electoral board's decision if service is faulty. In this case, the objectors were not personally served within the statutory time period, so the circuit court had no jurisdiction to hear the appeal of the electoral board's ruling. 

The appellate court did, however, reverse the circuit court's dismissal of the plaintiffs' mandamus claim in its lawsuit, and remanded that portion of the complaint back to the circuit court. 


Monday, November 5, 2018

Supreme Court Orders Supplemental Oral Argument and Briefing in Knick v. Township of Scott Case


We have reported previously on the 5th Amendment takings case Knick v. Township of Scott that is pending before the U.S. Supreme Court. The Supreme Court held oral arguments in this case on October 3rd. Just last week, the Supreme Court scheduled a second oral argument in this case (note that the previous argument took place prior to Justice Kavanaugh joining the Court). Some commentators speculate that the Justices were deadlocked, although the order itself requests that the parties submit briefing on one narrow issue, as follows:
This case is restored to the calendar for reargument. The parties and the Solicitor General are directed to file letter briefs, not to exceed 10 pages, addressing petitioner's alternative argument for vacatur, discussed at pages 12-15 and 40-42 of the transcript of oral argument and in footnote 14 of petitioner's brief on the merits. The briefs are to be filed simultaneously with the Clerk and served upon opposing counsel on or before 2 p.m., Friday, November 30, 2018. Reply briefs, not to exceed 4 pages, are to be filed simultaneously with the Clerk and served upon opposing counsel on or before 2 p.m., Friday, December 21, 2018.
The first round of supplemental briefs are due later this month, and argument will take place sometime in 2019.  


Friday, November 2, 2018

Talking About the Supreme Court's Janus Decision on GovLove's Podcast


For all of you podcast junkies, don't miss Ancel Glink attorney Matt DiCianni's discussion of the U.S. Supreme Court's opinion in Janus v. AFSCME (ruling that mandating payment of union "fair share" fees violates the First Amendment) on ELGL's GovLove podcast titled "Local Government Law, Unions, and the Janus Decision." You can listen here.

Thursday, November 1, 2018

Quorum Forum Podcast Released: Transgender People and Public Facilities


Ancel Glink just released Episode 13 of its popular podcast, Quorum Forum. This episode, titled "Transgender People and Public Facilities," is part one of a two part series that was recorded live at the 40th Illinois Public Employer Labor Relations Association Annual Conference (IPELRA). In part one, the panel discusses appropriate terminology and definitions to use with transgender individuals. We also hear from our transgender panelist on the challenges she has faced in accessing public facilities. You can access this episode on the Quorum Forum website here.

How do your public facilities accommodate transgender individuals? Tell us about it at podcast@ancelglink.com!

Wednesday, October 31, 2018

Discussion of Elected Officials in Closed Session Violated OMA


In its 15th binding opinion for 2018, the PAC found a public body in violation of the Open Meetings Act when it discussed the performance and salaries of two elected officials in closed session. PAC Op. 18-015

The county auditor filed a complaint with the PAC alleging that the finance committee of a county board improperly went into closed session to discuss the salaries of two elected officials. Her complaint raised allegations about three separate meetings. The PAC found that her allegations with respect to a May 2, 2018 meeting were outside its jurisdiction because the complaint was not filed within 60 days of that meeting. Allegations relating to a meeting scheduled for August 1, 2018, were also outside of the PAC's jurisdiction because that meeting had not yet taken place when the complaint was filed. The PAC did, however, review the allegations relating to a June 6, 2018 meeting of the finance committee.

The PAC reviewed the minutes of the June 6th meeting as well as the verbatim recording of the closed session. According to the opinion, the committee had cited 2(c)(1) of the OMA as the basis for going into closed session. That exception authorizes the discussion of, among other things, the performance and salaries of specific employees of a public body. The PAC found that the cited exemption did not apply in this case because the committee discussed the duties and salaries for two elected officials, the county coroner and the county auditor, and not employees. 

The OMA defines "employee" as "a person employed by a public body whose relationship with the public body constitutes an employer-employee relationship under the usual common law rules, and who is not an independent contractor." The PAC first determined that the county does not have an employer-employee relationship with the county auditor or county coroner because neither the committee nor the county board has the authority to direct and control the manner in which the auditor and coroner perform their duties. Second, the PAC determined that a public officer such as the county auditor or coroner cannot simultaneously be an "employee" of the county. Third, the PAC determined that state statute determines the duties and responsibilities of these elected officials, which statute prevails over any county ordinance. Finally, the PAC stated that the board has no authority to terminate the county auditor or coroner based on performance which would generally be the case were the two employees of the county. As a result, the PAC found that the cited exception 2(c)(1) did not apply.

The PAC also reviewed the exception contained in 2(c)(3) which allows a closed session discussion of public officers. The PAC noted that this exception only applies if the public body has the authority to remove the public officers being discussed, which is not the case with these two elected officials. So, the PAC determined that this exception also did not apply.

In sum, the PAC determined that the county board committee violated the OMA in discussing the performance and salaries of the county auditor and county coroner in closed session.

Tuesday, October 30, 2018

Court Addresses Fees for Zoning Violations




The Second District Appellate Court recently considered the fines that a municipality may impose for violations of a zoning ordinance in the case of City of Kankakee v. Ellington-Snipes. 

The controversy began on April 20, 2016, when the city issued a notice of violation to the property owner for various code violations relating to property maintenance issues. After the property owner failed to remedy the code violations, the city issued a citation.  However, the city subsequently dismissed the citation without prejudice.

Approximately 10 months later, on July 20, 2017, the city served the property owner with a lawsuit alleging that a tent that had been erected on the property violated the city’s zoning ordinance.  The city asked the court for an injunction and for payment of fines not exceeding $500 per day.  The property owner failed to answer the lawsuit or otherwise appear in court, and the city obtained a default judgment. The court issued an injunction requiring the property owner to bring the property into compliance with the zoning ordinance, and assessed fines against the property owner at $500 per day beginning on April 20, 2016, the date the city issued the notice of violation for the property maintenance issues. After the judgment had been entered, the property owner filed a motion to vacate the judgment, which was denied by the trial court.

On appeal, the property owner argued that the trial court should have set aside the injunction when he filed his motion to vacate.  The appellate court, however, found that the property owner had ample time to file an answer or appearance in response to the city’s lawsuit, and that the property owner had provided no reasonable excuse for the failure to timely respond. As a result, the appellate court upheld the injunction requiring compliance with the city’s zoning ordinance.

However, the appellate court reduced the amount of fines assessed against the property owner by the trial court. The appellate court noted that the city’s lawsuit only referenced the tent that violated the zoning ordinance, and did not include any of the property maintenance violations that the property owner was previously cited for.  Based on that distinction, the appellate court found that the fines had been improperly calculated beginning from the April 20, 2016 notice of violation. Instead, the appellate court reduced the fines to $500 per day beginning on July 20, 2017, the date that the property owner was served with the lawsuit for the zoning ordinance violation reducing the $49,500 fine imposed by the trial court to $20,500.

Post Authored by Kurt Asprooth, Ancel Glink

Monday, October 29, 2018

Nursing Home Had No Standing to Challenge Proposed Development of New Senior Residential Facility


Recently, an Illinois appellate court dismissed a case filed by one senior citizen facility operating in the municipality challenging the municipality's authority to approve a new senior citizen facility. Cedarhurst of Bethalto v. Village of Bethalto, 2018 IL App (5th) 170309.

Cedarhust operates a residential nursing home in the Village of Bethalto. When Unique Homes filed an application with the Village to build a new senior citizen residential facility, Cedarhust sued the Village claiming that it did not have authority to approve Unique Home's facility because the Village's comprehensive plan restricted development near the airport. The case was dismissed by the trial court, and Cedarhurst appealed.

On appeal, Cedarhurst argued that the Village was prohibited from approving or taking any action on Unique Homes' development applications because of the Village's comprehensive plan. The Village argued that the case had been properly dismissed because Cedarhust did not allege any special injury or individualized harm that Cedarhust would suffer if the Village approved the new development. The Village also argued that the comprehensive plan was advisory only, and the Village was under no obligation to implement any part of the plan in considering a development proposal. 

The appellate court agreed with the Village, and rejected Cedarhurst's claims. First, the court determined that Cedarhurst had no standing to challenge the Unique Home development proposal because it did not show how it would be directly injured by the development approval. Cedarhurst's nursing home was not near the proposed development, and Cedarhurst would suffer no direct, personal injuries if the Unique Homes' development were approved. Second, the court rejected Cedarhust's request for a court order to mandate that the Village follow its comprehensive plan, finding that the comprehensive plan is advisory only, and under state law"shall not be construed to regulate or control the use of private property in any way." In short, because Cedarhust did not have standing to sue the Village or Unique Homes, the case was properly dismissed.

Friday, October 26, 2018

PAC Finds Another Public Body in Violation for Failure to Respond to FOIA Request


In its 14th binding opinion of 2018, the PAC found a public body in violation of FOIA for failing to respond to a FOIA request. PAC Op. 18-014.  A requester had filed a FOIA request with the county assessor's office requesting records relating to tax exemptions for a particular property. When the requester did not receive a response, he filed a request for review with the PAC office of the Attorney General. The Attorney General contacted the county, which stated it would provide a response. However, when no response was forthcoming, the PAC found the public body in violation of FOIA.

As we have reported before, public bodies are obligated to respond to FOIA requests.

Thursday, October 25, 2018

Court Rejects Constitutional Challenge to City's Weed Ordinance


The City of Chicago sells vacant lots that it deems of "minimal value" to residents for $1 per lot. One of those lots was sold to Tucker, who intended to turn it into a community garden. Some time after she purchased the lot, the City inspected her property under the City's weed ordinance which prohibits the average height of weeds to exceed 10 inches in height. Six months later, the City served her with a citation for the condition that it found on the property six months prior. She appeared at an administrative hearing to contest the citation, claiming that the City failed to present evidence of the "average height" of the weeds. The administrative judge rejected that argument, and imposed a fine of $640.

Subsequently, Tucker filed a class action claim against the City claiming that the City's weed ordinance violated her civil rights because it did not provide a "post deprivation" hearing or other rights and because the City's delay in citing her violated her due process rights.

The Seventh Circuit Court of Appeals rejected Tucker's arguments, and upheld the City's weed ordinance. First, the Court noted that Tucker was provided with a hearing before the administrative judge where she could contest the citation. Second, the Court held that there is no due process right to an immediate "notice-on-demand" of an ordinance violation. Finally, the Court rejected Tucker's argument that the City misinterpreted its own ordinance, finding no due process right violation when a City disagrees with an individual's legal interpretation of a City ordinance. In sum, the City rejected Tucker's constitutional challenges to the City's process and weed ordinance, holding that the proper process to challenge a municipal citation is through the state courts. Tucker v. City of Chicago (7th Cir. 10/19/2018)