Tuesday, May 24, 2016

7th Circuit Denies Injunction Against "Adjacent-Sidewalk" Ordinance (Wrigley Field)

Anyone who has attended a game at Wrigley Field (and is familiar with the narrow streets surrounding Wrigley) will understand today's case. 

Left Field Media LLC publishes Chicago Baseball, a magazine that produces 4 issues over the course of a baseball season. Vendors hired by Left Field sell copies of the magazine outside Wrigley Field before Chicago Cub home games. Last year, on the day of the Cubs' home opener, Left Field's editor was selling magazines at the corner of Clark & Addison Streets. A police officer told the editor he had to move across the street because he was violating the City's Adjacent-Sidewalks Ordinance. That ordinance prohibits all peddling on streets adjacent to Wrigley. 

Left Field sued the City, claiming that the Adjacent-Sidewalks Ordinance violates the First Amendment. The district court denied Left Field's request for an injunction against enforcement of the ordinance, finding that the ordinance was justified because the streets adjacent to Wrigley are extremely narrow, and when crowded cause people to walk in the streets. Left Field appealed to the 7th Circuit Court of Appeals. Left Field LLC v. City of Chicago (7th Cir. May 23, 2016).

The 7th Circuit first determined that the Adjacent-Sidewalks Ordinance did not regulate speech; instead, it regulates peddling. As a result, the ordinance is "content-neutral" under the USSCT's recent decision in Reed v. Gilbert (the sign case). Under a content-neutral analysis, the City only needs to show a "rational basis" for the ordinance. The court held that the City satisfied this by stating that the reason behind the ordinance was to curtail peddler activity that delays entry into the stadium and induces crowds to spill into the streets. So, the district court's denial of Left Field's request for an injunction was upheld.

Left Field had also challenged the City's peddlers' license ordinance, which the 7th Circuit found more problematic. The court expressed concerns with requiring individual peddlers to obtain a license, and pay a $100 fee for that license. The court also questioned the City's rationale for the license program (control of fraud; payment of sales taxes), finding neither to be a valid justification for licensing peddlers. However, the court did not rule on this issue, finding that it was not yet ripe since neither Left Field or its vendors had ever applied for one of these street vendor licenses.

For those of you who haven't been to Wrigley, the following is an aerial photograph taken directly from the 7th Circuit's opinion.


Personal Note: The Cubs are facing the Cardinals today at Busch stadium. In my house, we happen to be evenly split between Cub and Cardinal fans, but on this blog, Cubs over Cardinals every day of the week. Go Cubs!   

Friday, May 20, 2016

Webcast — Airbnb & Zoning: Guide to Short-Term Rentals

The Planning and Law Division of the American Planning Association (APA) will be hosting a webcast on zoning and short-term rentals on June 6th.  Details about the webcast are below:

Airbnb & Zoning:  A Planner & Lawyer’s Guide to Short-Term Rentals
June 6, 2016
Noon to 1:30 PM Central Time

Airbnb is a name you’re likely familiar with. It’s a local official’s nightmare and a short-on-rent-tenant’s dream. Zoning enforcement officers and building inspectors are issuing violations, hotel industry lobbyists are crying foul play, and New York City has outlawed it altogether. In this webinar, Troy Flanagan, AHLA, George Proakis, City of Somerville, and Ulrik Binzer, Host Compliance, will provide insight into the legal and economic issues surrounding the “sharing economy” titan. Specifically, attendees will learn about the common pitfalls that local governments run into when trying to regulate short-term rentals, the best practices for incorporating local housing and community development objectives into short-term rental regulation, the challenges associated with monitoring compliance with, and enforcing, short-term rental regulations, and the best ways to overcome the compliance and enforcement challenges.

Speakers include George Proakis, Director of Planning for Somerville, MA; Troy Flanagan, Vice President of State and Local Government Affairs at the American Hotel and Lodging Association in Washington, DC; Jeffrey Goodman of Miller Urban Consulting in Louisiana; and Ulrik Binzer of Host Compliance LLC in San Francisco, CA.

Thursday, May 19, 2016

Court Upholds Impoundment Ordinance But Raises Concerns for Municipalities


In McGrath v. City of Kankakee, 2016 ILApp (3d) 140523, the court upheld a city ordinance that authorized the impoundment of vehicles operated by persons under the influence of alcohol or drugs; whose driver’s license is suspended or revoked; or against whom a warrant has been issued for failing to appear in court to answer charges of operating a vehicle under the influence of alcohol or drugs or for operating a motor vehicle while that person’s license was suspended or revoked.

When Plaintiff’s vehicle was impounded, she sued claiming the city did not post traffic regulatory signs as required by section 11-207 of the Motor Vehicle Code warning motorists of the possibility of municipal impoundment.  This section provides that municipal ordinances that impose traffic regulations not contained in the Motor Vehicle Code “shall not be effective until signs giving reasonable notice thereof are posted.”  The city had posted signs, albeit, 5 years after the ordinance was enacted.  The court failed to address the sign issue due to the fact that the Plaintiff failed to plead when her car was impounded.  In concurrence, Justice McDade said the case left an important question unanswered:  How many individuals were subject to impoundment when the ordinance was invalid due to the lack of properly posted signs?

The court next addressed the Plaintiff’s argument that the ordinance was an unconstitutional attempt by the city to raise revenue through its police powers.  The court, relying on various cases involving the City of Chicago, found that the $500 fine was constitutional.  The fine served the legitimate purpose of deterring criminal activity.  The court stated that a fee must be reasonably related to cost of providing services, but a fine is intended to be punitive.


Many municipalities have enacted vehicle impoundment ordinances.  The McGrath case raises but does not answer an important question:  Must signs be posted in the municipality pursuant to section 207 of the Motor Vehicle Code in order to enforce the impoundment ordinance? Additionally the case provides an apparent safe harbor for reasonable fines as opposed to administrative fees which must be justified based on the cost of impoundment.  Municipalities should consult with their municipal attorneys for guidance on these two important matters following the McGrath case.

Post Authored by Steve Mahrt, Ancel Glink

Wednesday, May 18, 2016

Public Body Cannot Ban Criticism at Meetings

As all public bodies in Illinois know, the Illinois Open Meetings Act requires the public body to provide some opportunity for public comment. 5 ILCS 120/2.06(g). The Attorney General says that means every meeting of a public body must include a public comment period. A public body can adopt policies for the public comment period, including imposing time limits on speakers and establishing and enforcing measures to deal with disruptive members of the public. A public body cannot, however, adopt or apply a rule that prohibits criticism of public employees, according to a federal district court ruling in Mnyofu v. Bd of Education of Rich Township H.S. Dist. (N.E. Dist., April 5, 2016).

The Rich Township School Board had adopted a public comment policy that stated as follows:

"Please refrain from mentioning the name of students and employees." 

That policy was stated verbally at each meeting, and was also written on meeting agendas. During public comment at a school board meeting, Mnyofu criticized certain individuals by name. The board president asked for the microphone to be turned off and for the security guard to stop Mnyofu from speaking. Mnyofu spoke for approximately 6 minutes before he left the meeting.

He subsequently sued, alleging that the school board's policy violated his First Amendment rights, by prohibiting speech based on its content - i.e., prohibiting criticism of school officials. The school district filed a motion to dismiss, arguing that they did not violate his First Amendment rights because any attempt to stop him from speaking was unsuccessful, and he was able to speak for almost 2 minutes longer than the policy permitted.

The court denied the school district's motion to dismiss Mnyofu's complaint, on the basis that Mnyofu had raised factual issues as to whether the school board's conduct in attempting to cut him off based on the content of his speech rose to the level of a free speech violation. The court also rejected the district's argument that the board president had immunity. Finally, the court granted Mnyofu's request for a preliminary injunction enjoining the school board from enforcing the policy restricting criticism against district employees by name. 

In granting the injunction, the court accepted Mnyofu's argument that a board meeting is a "designated public forum" and, as a result, the school board's policy was subject to a higher level of scrutiny than if the meeting were considered a "limited public forum." Other courts that have addressed this issue have found a public meeting to be a limited (not designated) public forum. For example, the 9th Circuit Court of Appeals determined that a public meeting is a limited public forum in Fitzgerald v. Orange County (9th Cir. April 17, 2014). A Vermont court held similarly in Cyr v. Addison Rutland, as did an Ohio appellate court in  Paridon v. Trumbull County Childrens Services Board, and a New Mexico court in Griffin v. Bryant (N.M. Dist. Ct. June 18, 2014).  

Whether a public meeting is a designated or limited public forum does not seem to affect the rulings coming out of these cases cases, however. The message to public bodies is to be cautious in adopting or enforcing policies that restrict public comment based on the content of the speech. Public bodies can, however, enforce rules on decorum at meetings and even remove individuals for disrupting the meeting. 

Post authored by Julie Tappendorf

Tuesday, May 17, 2016

From The Workplace Report: PSEBA Forms Now Available

From Ancel Glink's labor & employment blog, The Workplace Report with Ancel Glink:  PSEBA FORMS NOW AVAILABLE FROM COGFA

Two forms pursuant to the Public Safety Employee Benefits Act (PSEBA) are now being sent to all units of local government in Illinois. The forms are also available on the website of the Commission on Government Forecasting and Accountability (COGFA).

Under Section 17 of PSEBA, COGFA is required to collect data relating to the cost of health insurance required by PSEBA to be provided to former police officers, firefighters, and correctional officers who qualify for PSEBA catastrophic injury insurance benefits. While the purpose of the forms is to collect data for State use, the forms also will serve as a source of data for units of local government that are seeking information regarding statutorily mandated offsets to the cost of providing catastrophic injury health insurance benefits.

The first of the two forms is the PSEBA “Recipient Reporting Form”. It is to be distributed by local governments to PSEBA recipients. It asks a number of questions to recipients, including questions as to whether the recipient or his/her spouse is enrolled in an insurance plan provided by a current employer and whether the recipient or his/her spouse has been offered or provided access to health insurance from a current employer. This information will provide local governments that are paying PSEBA benefits with previously unavailable or difficult to obtain offsetting insurance coverage data.

The PSEBA statute requires the PSEBA recipient to complete and return the Recipient Reporting Form to the local government employer within 60 days of receipt. If the PSEBA recipient fails to do so, the employer is to notify the PSEBA recipient of non-compliance and provide an additional 30 days to submit the form. If the PSEBA recipient does not complete and return the form, despite being given an additional 30 days to do so, the PSEBA recipient will be responsible for reimbursing the employer for health insurance premiums paid during the period when the Form was due but not returned.

The second form is called the “Employer Subject to PSEBA Reporting Form”. It is to be filed with COGFA by the local government employer within 120 days after the Form is received by the employer from COGFA. The Employer Form is extensive (7 pages long). It reports aggregate and individual recipient data concerning PSEBA benefits and recipients, including identification of PSEBA applicants and PSEBA recipients, and health insurance premium payments made pursuant to PSEBA benefit awards. The Form is a PDF form that can be filled out and submitted online.


Local government employers are encouraged to distribute the Recipient Form to recipients promptly so that the data will be received in time to meet the Employer Form submission deadline. This is a major opportunity for local governments to reduce PSEBA costs and should not be missed.

Post originally authored by Don Anderson, Ancel Glink


Monday, May 16, 2016

Zoning Decision of Municipal Council Not Subject to Administrative Review

Plaintiffs filed an application to develop a 7-lot subdivision in Palatine. The application for rezoning and subdivision approval was first heard by the plan commission, which recommended approval of the application. The plan commission forwarded its recommendation to the village council for final action, and the council denied the development petition. 

Shortly thereafter, the plaintiffs filed an application with the plan commission to "appeal" the village council's denial of its development plan. Village staff responded to the petition for an appeal by informing plaintiffs that the administrative appeal process only applies to appeals of decisions by village staff, and not village council. Moreover, appeals were heard by the zoning board of appeals, not the plan commission. As a result, the appeal was not heard and plaintiffs filed a complaint in administrative review in the circuit court. That complaint was filed 3 1/2 months after the village council denied the development petition.

The trial court dismissed the case on two grounds. First, the court held that the village council's decision to deny the subdivision plan was not an administrative decision, but a legislative one that is not subject to review under the Administrative Review Law. Second, the court held that even if the village council's decision was subject to administrative review, plaintiffs' complaint was not timely filed.

The appellate court upheld the dismissal of the case, finding that the village council's decision denying the subdivision approval was a legislative decision, and therefore not subject to administrative review. The court rejected plaintiffs' argument that the Illinois Supreme Court's decision in Klaeren v. Village of Lisle controlled (i.e., that a decision on a special use is an administrative or quasi-judicial decision). First, the court found that the Plaintiffs' petition for subdivision approval was not a special use petition. Second, and more importantly, the court noted that the Illinois legislature had abrogated or nullified Klaeren's central holding that special use decisions are administrative in nature. The court cited to 65 ILCS 5/11-13-25(a) (adopted in 2006), which specifically provides that all zoning decisions made by the corporate authorities are legislative decisions.

This case is another reminder that zoning decisions of the corporate authorities (city council, village board, village council) are legislative decisions, and are not subject to administrative review.


Post authored by Julie Tappendorf

Thursday, May 12, 2016

Court Upholds Demolition Action

In 2006, the City of Kankakee obtained a demolition order to remove a building that it and the court deemed unsafe and a public nuisance under Section 11-31-1 of the Illinois Municipal Code. City notified the owner at that time and recorded a notice for any subsequent owners. The City did not take any action to demolish the structure until 2012.  

The owner (who had purchased the property in a tax sale in 2007) sued the City claiming it did not have adequate notice of the demolition and that the City's delay in demolishing the structure violated state law.  The court found in favor of the City in Willie Pearl Burrell Trust v. City of Kankakee, 2016 IL App (3d) 150398-U.  Specifically, the court held that the City had recorded notice of the demolition in 2006, which provided notice to all subsequent owners of the pending demolition, including plaintiff who purchased the land in 2007. The court also rejected the plaintiff's argument that the 5 year delay between the issuance of the demolition order and actual demolition violated state law, finding no statutory deadline under the demolition statute. 

Post authored by Julie Tappendorf

Tuesday, May 10, 2016

Bill Would Allow Concealed Carry in Public Parks and Athletic Facilities

A few years ago, the Illinois legislature adopted P.A. 98-63 authorizing concealed carry in Illinois. The Act contained a number of restrictions and prohibitions on carrying weapons in certain buildings and on certain property, including parks and forest preserve land. A recent bill (SB 3332) would remove these restrictions from the law, allowing individuals to carry guns on the following properties:

  • public parks under the control of a municipality or park district
  • athletic areas under the control of a municipality or park district
  • athletic facilities under the control of a municipality or park district
  • property under the control of the Cook County Forest Preserve District

It's not clear that this bill will go anywhere this session, but it's one worth keeping track of.

Post Authored by Julie Tappendorf

Friday, May 6, 2016

Colorado Supreme Court Finds Fracking Ordinances Preempted by State Law

In 2012, the voters of the City of Longmont, Colorado approved adding an ordinance to the City's home-rule charter that provided as follows:
It shall hereby be the policy of the City of Longmont that it is prohibited to use hydraulic fracturing to extract oil, gas, or other hydrocarbons within the City of Longmont. In addition, within the City of Longmont, it is prohibited to store in open pits or dispose of solid or liquid wastes created in connection with the hydraulic fracturing process, including but not limited to flowback or produced wastewater and brine.
The Colorado Oil & Gas Association subsequently sued the City, claiming that Longmont's ordinance was preempted by the state of Colorado's "Oil and Gas Conservation Act." The Association argued that the following provisions of the state law preempted local regulation of the fracking industry, even regulations adopted by home rule municipalities:
It is the intent and purpose of this article to permit each oil and gas pool in Colorado to produce up to its maximum efficient rate of production, subject to the prevention of waste, consistent with the protection of public health, safety, and welfare, including protection of the environment and wildlife resources, and subject further to the enforcement and protection of the coequal and correlative rights of the owners and producers of a common source of oil and gas, so that each common owner and producer may obtain a just and equitable share of production therefrom. § 34-60-102(1)(b), C.R.S. (2015).
The state supreme court agreed with the Association, and struck down Longmont's ordinance. Although the court acknowledged that the Act did not expressly preempt local regulation of oil and gas operations, the local ordinance "impermissibly frustrate(s) the operation of the statewide law" because it had extra-territorial impact on oil and gas operations outside of Longmont. In the same case, the court also struck down a Ft. Collins ordinance that also regulated fracking operations. City of Fort Collins v. Colorado Oil & Gas Association, 2016 CO 28 (Colo. May 2, 2016)

Post Authored by Julie Tappendorf


Thursday, May 5, 2016

Bill Would Expand Tax Cap Law to All Non-Home Rule Entities

Currently, non-home rule local governments (cities, villages, townships, libraries, etc.) in Cook, DuPage, Will, Kane, McHenry, and Lake Counties are subject to the Property Tax Extension Limitation Act, commonly known as a "tax cap law." This law limits the ability of these local government units to raise property taxes beyond the statutory cap without first going to referendum. Recently, there have been a number of bills introduced to expand the tax cap law to other units of government and to institute a property tax freeze.

For example, House Bill 696 would apply tax caps to all non-home rule units of local government and school districts in Illinois.  The legislation would also permanently lower the property tax extension limiting rate to zero percent above the previous year (a property tax freeze). Currently, the tax caps limit a taxing district's levy to the previous year's levy plus the lesser of 5% or the consumer price index.  This limitation rate has always been intended to allow levies to grow with inflation up to a maximum of 5% per year.  HB 696, however, would lower any inflation increase to zero. If the legislation becomes law, all non home-rule local government and school district levies would be limited to the taxing district's previous year's levy, permanently.  

The bill passed the Illinois House on April 26, 2016, and now goes to the Senate. We'll keep you posted about this bill.

Post authored by Julie Tappendorf

Wednesday, May 4, 2016

Electoral Board Has No Authority to Raise its Own Objections to Candidacy

The Illinois Election Code authorizes an objector to file a formal objection to a candidate's nomination for failure to challenge the candidate's eligibility to run for office. There are numerous cases involving these type of challenges that provide guidance to both candidates and objectors as to the type of challenges that may or may not be successful (i.e., result in removal of a candidate from the ballot). The scope of the objection and the electoral board's jurisdiction are the subjects of today's case, Wiesner v. Brennan, 2016 IL App (2d) 160115.

Wiesner filed nomination papers to run for circuit court judge in DuPage County at the primary election in March of this year.  Brennan filed an objection to Wiesner's candidacy on a variety of grounds, including challenges to individual signatures and an improper identification of the office. The DuPage election commission held a hearing on the objection, and found Wiesner ineligible to be on the ballot because the candidate's statement of candidacy and petition sheets were not properly notarized.  Wiesner appealed, and both the trial court and appellate court reversed the commission, and ordered the candidate's name to be placed on the ballot.

The appellate court rejected the commission's finding that the papers were not properly notarized because that issue was not raised in the original objection that was filed by Brennan and instead was raised for the first time during the election commission's hearing.  The court cited a number of cases that clearly hold that an electoral board should only consider the specific challenges set forth in the written objection, and that the Election Code does not provide for amendments to objections nor does it permit an electoral board to raise its own objections to a nomination petition. Since the notary issue was not addressed in the initial written objection, the election commission exceeded its authority when it invalidated the candidacy of Wiesner based on grounds not raised in the objection. As a result, the candidate's name was ordered to be placed on the ballot.

Post authored by Julie Tappendorf


Tuesday, May 3, 2016

Police Officer's PSEBA Claim Barred by Statute of Limitations

In 2001, a police officer was awarded a line of duty pension in 2000, after suffering injuries in 1992, and then again in 2000. Shortly after he was granted his disability pension, he contacted the Village requesting that it pay his health insurance premiums under PSEBA. The Village denied the request on the basis that he was injured before PSEBA took effect in 1997. The officer made a second request in 2003, but received no response.

10 years later, the officer filed a lawsuit against the Village. The trial court ruled in the Village's favor, finding he was not entitled to health insurance benefits because PSEBA was not in effect when he was injured.  The officer appealed, and the appellate court affirmed the trial court's ruling in favor of the Village, but on different grounds. Specifically, the appellate court ruled that the officer's lawsuit was not timely because it was not filed within the 5 year statute of limitations.  Hancock v. Village of Itasca, 2016 IL App (2d) 150677. As a result, the officer was not entitled to PSEBA benefits.

Post authored by Julie Tappendorf