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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

Monday, March 25, 2019

Court Rules Village Assault Weapon Ordinance is Unenforceable


According to a news release issued by the Village, as well as a number of news articles, a Lake County Circuit Court judge ruled that the Village of Deerfield cannot enforce its ordinance banning assault weapons that it passed in 2018. We wrote about that ordinance, and the court's issuance of a temporary restraining order against enforcement of that ordinance, here

In passing the 2018 ordinance, the Village relied on authority granted by the Illinois legislature in 2013 when the state enacted legislation restricting municipal regulation of assault weapons. That legislation did, however, provide a 10 day "window" for municipalities to adopt an ordinance. Deerfield did, in fact, adopt an ordinance within the 10 day time-frame to define and regulate assault weapons but did not ban these weapons until 2018. The Village was sued, and argued, among other things, that it simply amended the ordinance it previously enacted in 2013, as authorized by state statute. The Lake County Circuit Court Judge, however, ruled that the Village did not have the authority to ban assault weapons and, therefore, its ban was unenforceable. 

This case will likely be appealed, and we will keep you posted.

Wednesday, March 20, 2019

City Did Not Waive Claim to Cite Additional Exemptions in FOIA Lawsuit


It is rare that we see a FOIA challenge go to court in Illinois - most challenges or appeals of a FOIA decision by a public body make their way to the Attorney General's Public Access Counselor's office (PAC).  Recently, an Illinois Appellate Court issued an opinion in a FOIA challenge and ruled in favor of the public body. Hosey v. City of Joliet

A reporter filed a FOIA request with the City requesting copies of videotaped police interviews of several individuals. The City denied the request, citing various FOIA exemptions including personal privacy, interference with law enforcement proceedings and disclosure of confidential source or information. The reporter filed an appeal with the PAC office, and the PAC determined that the requester was entitled to the videotapes. When the City did not turn over those tapes, the requester filed a lawsuit, asking the circuit court to order the City to turn over the tapes and seeking civil penalties and attorney fees.

The circuit court ruled in favor of the City, and held that the tapes were not subject to disclosure. The court did not base its decision on the exemptions cited by the City in its denial, but instead held that the tapes were not subject to public inspection because the Illinois Criminal Code prohibits disclosure of the records relating to persons who are criminally accused. 

The reporter appealed, arguing that the Criminal Code provision did not apply in this situation and that the City waived or forfeited this argument because it did not cite this exemption in its denial letter.  The appellate court upheld the ruling in favor of the City and rejected the reporter's arguments. First, the appellate court determined that the City did not waive or forfeit the ability to raise additional exemptions to support its denial of the FOIA request. The appellate court cited two other appellate court decisions holding that a public body does not waive its claim to raise additional exemptions to support a denial in a FOIA challenge. Second, the appellate court agreed that the Criminal Code does apply to the requested records and prohibits release of electronic recordings of any statement made by an accused during a custodial investigation, even after the individual is no longer accused.

Tuesday, March 19, 2019

Written Orders Required by Supreme Court Rule 557



An important reminder to municipalities and municipal prosecutors. Under Supreme Court Rule 557 (which became effective March 1, 2019), courts must now enter written orders imposing any sentence and all fines, fees, and costs against a defendant at the time of sentencing in traffic, conservation cases, and ordinance violation cases. More importantly for municipalities, the municipal prosecutor is responsible for drafting the order and presenting it to the defendant or the defendant's attorney for review before submitting it to the court. 

Post Authored by Megan Mack, Ancel Glink

Monday, March 18, 2019

Time to Start Thinking About Compliance With New IRS Reporting Requirement on Fines




Section 13306 of the Tax Cuts and Jobs Act prohibits individuals from deducting from their income taxes certain fines and/or restitution paid to government entities. According to the Internal Revenue Service (IRS), a municipality will also be required to file a 1098-F form with the IRS reporting any fine or restitution paid to the municipality of $600.00 or more. The IRS website summarized this new requirement on its website as follows:
A government or governmental entity and certain nongovernmental entities that exercise self-regulatory powers must file a separate Form 1098-F, Fines, Penalties, and Other Amounts, with the IRS for each fine, penalty, or other amount in excess of an amount determined by the Secretary that is paid in relation to any violation of law or investigation into potential violation of law, pursuant to a court order or agreement.
Although many municipal fines will be fall under the threshold reporting amount, there will certainly be instances where a fine will trigger this new reporting requirement, meaning that municipalities should be ready to comply with this new requirement.

The regulation and form leave a lot of questions unanswered, particularly how municipalities can ensure that it can obtain the required information from the individual who paid the fine or restitution that is required for the form (i.e., social security number, etc). Maybe some of these will be answered when the IRS finalizes its regulations on this new requirement, although that may not be until the end of the year. Until then, municipalities should discuss and consider how they will collect, store, and protect the information required for these forms so they are ready to comply when the regulations are final.

You can get more information about the reporting requirement and view a draft of the 1098-F form on the IRS website here.

Post Authored by Megan Mack & Julie Tappendorf, Ancel Glink

Thursday, March 14, 2019

Short Term Rental Bill Introduced Again This Session


The Illinois General Assembly is considering another bill that would restrict local zoning authority. Yesterday, we reported on the bill that would restrict municipal zoning authority over "hoop houses" (temporary green houses for gardens). Today, we report on HB 2919 which, if passed, would restrict municipal zoning authority over short-term rentals (i.e., AirBNB, HomeAway, etc.)

If passed, the bill would prohibit municipalities from enacting any ordinance, regulation, or plan that would prohibit short-term rentals or even regulate them based on classification, use, or occupancy. There are a few exceptions to the ban that would allow the regulation of short-term rentals to protect the public health, safety, and other circumstances. That exception would seem to allow municipalities to exercise zoning authority to regulate or restrict short-term rentals so long as the primary purpose of the regulation is to protect fire and building codes, traffic control, or other health and safety concerns. 

We will keep you posted on this and other bills proposing to restrict municipal zoning authority this session.

Wednesday, March 13, 2019

SB 1675 Would Prohibit Local Zoning Authority Over Certain Temporary Crop Protection Structures




Recently, a bill was introduced in the Illinois Senate that would significantly restrict local zoning authority. The Illinois Chapter of the American Planning Association has prepared and sent out an “e-blast” about the proposed legislation encouraging APA members to oppose the bill. Below is some of the information sent out by the IL-APA about this bill:

APA Illinois Position on SB 1675

Summary:  Amends the Zoning Division of the Illinois Municipal Code, 65 ILCS 5/11-13-1 et seq. Provides that a municipality, including home rule municipalities, may not restrict residents from constructing a season extension or crop protection device from each October 1 through April 15. Provides that "season extension or crop protection device" means a temporary structure that meets the following specifications:

  • the structure is used for growing agricultural products for personal consumption on private property; 
  • the structure is wholly on the owner's property; 
  • it is a skeletal structure comprised of materials that are easily constructed and easily deconstructed; and 
  • the walls of the structure are comprised of plastic membranes or firm translucent material.
Analysis:  SB1675 is a significant prohibition on the exercise of otherwise broad municipal zoning power regarding a very specific type of temporary structure. Further, there is no legislative pronouncement explaining why the General Assembly has determined that residential crop protection structures warrant a special treatment and immunity from land use regulation, unlike other uses. In fact, the bill appears to be in response to some very specific situations. The home rule preemption is also a very unusual part of the proposed legislation. It is rare for the General Assembly to preempt home rule powers on unique local matters. Based on this, APA Illinois has determined that:

  • This bill is an unnecessary limitation on municipal zoning powers over a very specific temporary use that may be placed on any part of a property, including front yards. 
  • Each municipality should maintain its authority over temporary structures and determine the best zoning regulatory approach that is consistent with its land use policies and plans, and enables for the appropriate protections of its residentially zoned neighborhoods and commercially zoned areas.

Tuesday, March 12, 2019

Quorum Forum Podcast: Tiny Homes Edition



Ancel Glink's Quorum Forum Podcast recently released Episode 21: Tiny Homes

Tiny homes are a big trend, and Ancel Glink attorney Kurt Asprooth joins our regular meeting to discuss local regulations for these unique structures; but first John Reding and Ancel Glink's "In the Zone" land use newsletter bring us the latest on recreational cannabis proposals in Illinois. Email us at podcast@ancelglink.com to subscribe to In the Zone, and stay up to date on important land use news!

You can listen to Episode 21 here.

Friday, March 8, 2019

Court Finds that Home Rule Units Are Not Bound by the Safe Roads Amendment




Do home rule units have to comply with the Illinois Constitution?  That question was raised in a recent decision by a Cook County circuit court in the case of Illinois Road and Transportation Builders Association v. County ofCook. 

In 2016, Illinois voters approved the Safe Roads Amendment to the Illinois Constitution.  The Safe Roads Amendment requires that revenues derived from transportation taxes only be spent on transportation related expenses. The Safe Roads Amendment was added as Section 11 of Article IX of the Illinois Constitution.

Cook County, a home rule unit, has been diverting several taxes relating to transportation (gasoline tax, wheel tax, etc.) towards non-transportation related expenses. Instead of using those revenues for transportation purposes, as required by the Safe Roads Amendment, Cook County had been diverting those revenues to its Public Safety Fund.  Several road contractor associations filed suit, alleging that Cook County was violating the Safe Roads Amendment by diverting these revenues to its Public Safety Fund. The associations sought to enjoin the County from spending transportation revenues on any non-transportation related purpose.

The County moved to dismiss the lawsuit, alleging, among other arguments, that the Safe Roads Amendment did not limit its home rule powers, and therefore the County was not bound to follow the Amendment. The County relied on the language of Article VII, Section 6(a) of the Illinois Constitution which governs the powers of home rule units. Section 6(a) states as follows:

Except as limited by this Section, a home rule unit may exercise any power and perform any function pertaining to its government and affairs, including, but not limited to, the power to regulate for the protection of the public health, safety, morals and welfare, to license; to tax; and to incur debt.

The County claimed that because the Safe Roads Amendment did not specifically limit home rule powers under Section 6(a), the County was not bound to comply with the Safe Roads Amendment.

The Court agreed, noting that the language of Section 6(a) of Article VII specifically states that home rule powers can only be limited “by this Section.” The Court found that a provision contained in another section of the Constitution, such as the Safe Roads Amendment contained in Article IX, cannot limit home rule powers, as only Section 6(a) of Article VII can do so.  Following that logic, the Court noted that the drafters of the Safe Roads Amendment had “a ready, straightforward, specifically prescribed means” to limit home rule powers (i.e., under Section 6(a) of Article VII), but the drafters chose not to use those means. So, Cook County’s home rule powers are not constrained by the Safe Roads Amendment.  The Court also cited the fact that the ballot summary for the Safe Roads Amendment prepared by the Secretary of State specifically disclaimed any limitation or alteration of home rule powers.

While an appeal of this decision is almost certain, the central holding of the case could have significant implications for home rule units.  If the decision is upheld, there would be precedent for home rule units to enact policies that conflict with the Illinois Constitution, unless such powers are expressly limited in Article VII, Section 6. 

Post Authored by Kurt Asprooth, Ancel Glink

Thursday, March 7, 2019

How Far Can a Citizen Go in Criticizing Government Officials?



The First Amendment protects a citizen’s right to petition the government for redress of grievances including the right to complain about the decisions and actions of government officials. At what point, however, do complaints stop being legitimate criticisms and begin to intentionally inflict emotional distress or constitute harassment and defamation? That question and others may come before an Illinois court soon in a case filed by school district officials against a persistent critic. 

On December 27, 2018, the Waukegan Community School District No. 60 board president, superintendent, and attorney filed a lawsuit against an individual who, they claim, persistently criticized them at board meetings, in e-mails, by phone, on Facebook, and face-to-face in public places. According to the plaintiffs, the criticisms consisted of dozens of false statements, threats, and related conduct. They seek $2,000,000 in damages for intentional infliction of emotional distress, interference with contract and business relations, harassment through electronic communication, fraud, defamation, false light, and invasion of privacy.

The defendant, a candidate for alderman in the City of Waukegan, claims the lawsuit is an “attempt to chill my speech based on my message” and that she has a First Amendment right to speak on matters as both a citizen and a taxpayer. 

Speech critical of the government has been the subject of numerous Supreme Court cases since 1900 especially during periods of heightened concern for public safety such as during war time and following 9/11. The use of Facebook and other social media sites to petition the government is a relatively new phenomenon, however, and this case may break new ground if it advances to trial.

You can read the complaint here.

Post Authored by David Warner, Ancel Glink

Wednesday, March 6, 2019

Federal Court Limits Size of Required Warning Labels on Commercial Billboards




Government-required warning labels on billboards are a ubiquitous, and permissible, infringement on the First Amendment commercial speech rights of advertisers. However, the Ninth Circuit Court of Appeals recently found a local government’s ordinance went too far by requiring too much advertising space be dedicated to warnings against the harmful health effects of consuming drinks with added sugar. American Beverage Ass'n v. City and County of San Francisco (7th Cir. 1/31/19).

In 2015, the City and County of San Francisco adopted an ordinance requiring any advertisement for sugar sweetened beverages contain the following warning: 
WARNING:  Drinking beverages with added sugar(s) contributes to obesity, diabetes, and tooth decay. This is a message from the City and County of San Francisco. City & Cty. of S.F., Cal., Health Code art. 42, div. I, § 4203(a) (2015).
The ordinance required the warning occupy at least 20% of the advertisement and be set off with a rectangular border. A broad array of advertising companies and industry groups sued to prevent enforcement of the ordinance on the grounds it exceeded the government’s authority to  compel speech as set forth by the Supreme Court in in its decision Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio.

In Zauderer, the U.S. Supreme Court found the government could require an advertiser to disclose certain information without violating the advertiser's First Amendment free speech rights as long as the disclosure requirements were reasonably related to the government’s interest in preventing the deception of consumers. However, in order to comply with Zauderer, the government’s regulation must not be more extensive than is necessary to serve that interest. 

In evaluating San Francisco's ordinance, the Ninth Circuit found the City’s own expert had cited studies showing warning signs half the size of those required by the ordinance would still accomplish the City’s stated goals. Because the difference was so significant, the court found the size requirement not justified and unduly burdensome. 

Post Authored by David Warner, Ancel Glink

Tuesday, March 5, 2019

Supreme Court Weighs in on Civil Forfeiture Practices


The U.S. Supreme Court recently issued a ruling in a case involving civil forfeiture of property used in the commission of a crime that will be of interest to municipal police departments. Timbs v. Indiana (USSCT Feb. 20, 2019).

The case involved a challenge to a State of Indiana's seizure of Timb's Land Rover SUV after Timbs plead guilty to dealing in a controlled substance and conspiracy to commit theft. He was sentenced to one year of home detention and five years of probation, and assessed fees and costs. In addition, the State brought a civil suit for forfeiture of Timb's SUV. The trial court denied the requested forfeiture, finding that the vehicle was recently purchased for $42,000, which was more than four times the maximum fine that could be imposed for the crime. The State appealed, and the Court of Appeals reversed. The case made its way to the U.S. Supreme Court on the issue of whether the Eighth Amendment to the U.S. Constitution (prohibiting cruel and unusual punishment and excessive bail) prohibited this particular forfeiture.

The U.S. Supreme Court reviewed the history of the "Excessive Fines Clause" of the 8th Amendment , and determined that the clause does apply to civil forfeiture actions such as Indiana's as the 8th Amendment is incorporated into the 14th Amendment. As a result, the majority of the Court remanded the case back to the Indiana Supreme Court to determine whether the state's seizure of Timb's SUV violated that clause.

The majority opinion (authored by Justice Ginsburg) is quite brief, but there were also a number of concurring opinions that went into greater detail about the 8th and 14th Amendments. Although the Justices gave different reasons for their opinions, they all agreed that the civil forfeiture procedure is subject to federal constitutional protections.

Monday, March 4, 2019

A New Quorum Forum Podcast on Land Use Just Released


Join Ancel Glink’s Quorum Forum podcast for a special meeting recorded at the live at Haymarket Pub & Brewery from the APA-CMS Bar Exam Planning Law Session, a realistic law school simulation for planners and land use professionals hosted by the American Planning Association’s Chicago Metro Section. Ancel Glink’s Greg Jones and Megan Mack discuss some of the audience’s favorite planning law topics, including annexation agreements, food trucks, dockless scooters, and more! 

You can access this podcast episode here.

What important land use issues are facing your community? Email us at podcast@ancelglink.com!