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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

Thursday, March 23, 2017

Illinois Supreme Court Hears FOIA Arguments in BGA v. IHSA Case


Previously, we reported on a decision by an Illinois appellate court ruling against the Better Government Association (BGA) in a lawsuit challenging the denial by the Illinois High School Association (IHSA) of its FOIA request. Following that ruling, the BGA filed an appeal with the Illinois Supreme Court, which heard the case earlier this week.  You can access the video or listen to the audio of the oral argument here.

The case involved the IHSA's denial of a FOIA request filed by the BGA asking the IHSA for accounting, sponsorship, public relations/crisis communications services and licensed vendor applications. The IHSA argued that it was a non-profit organization and not a public body subject to FOIA. The BGA responded that the IHSA is a "subsidiary public body" under FOIA because it performs a governmental service for its member school districts. Both the circuit and appellate courts ruled in favor of the IHSA, finding that the IHSA was not a subsidiary body and was not subject to FOIA.

At oral argument before the Illinois Supreme Court, the BGA argued that the IHSA should be considered a subsidiary body under FOIA because of the ties between the member schools and the IHSA and the governmental functions the IHSA performs on behalf of their member schools. The Justices spent some time questioning the BGA attorney on the matter of "control" between the member schools and the IHSA, asking the BGA to identify specific constitutional or statutory ties that exist, as well as questions as to the IHSA's funding sources.

The IHSA responded in its argument that the fact that public bodies may join an association (such as the IHSA), does not transform that private association into a subsidiary body under state law. The Justices focused their questioning on how the IHSA is funded (private donations and attendance fees), and that the IHSA is not supported by tax dollars.

The Illinois Supreme Court will issue a written ruling sometime in the future, so stay tuned as we will report on that decision when it comes out.

Post Authored by Julie Tappendorf

Wednesday, March 22, 2017

PAC Issues First Binding Opinion of 2017


The Illinois Attorney General (PAC office) recently issued its first binding opinion for 2017.  In PAC Op. 17-001, the PAC found the Illinois State Police in violation of FOIA for improperly denying a request for an ISP field report referenced in an accident report the requester had previously received. The ISP had denied the request in its entirety, claiming release would interfere with a pending law enforcement proceeding. 

The requester filed a complaint with the PAC, which determined that the ISP failed to provide a "detailed factual basis" as to how the release would interfere with its law enforcement investigations. In the PAC's opinion, the mere existence of an open investigation is not enough to satisfy this exemption, and the ISP was required to explain, in some detail, why release would interfere with the open investigation. 

Post Authored by Julie Tappendorf

Tuesday, March 21, 2017

Court Rejects Challenge to Ordinance Ban on Texting While Driving


Illinois has a law that prohibits a person from driving while using an electronic device (cell phone, smart phone, etc.). In 2005, the City of Chicago adopted an ordinance prohibiting similar conduct - i.e., using cell phones while operating a vehicle.  

After Simic was issued a ticket by a Chicago police officer for texting while driving, she challenged Chicago's ordinance in court, claiming it is unconstitutional. In her lawsuit, Simic claimed that the ordinance violated her due process rights and Eight Amendment's excessive fines clause. She sought damages in excess of one million dollars. 

The Seventh Circuit Court of Appeals ruled against Simic, finding that she had no standing to challenge the ordinance or seek monetary damages. Simic v. City of Chicago (7th Cir. 2017). The Court rejected any argument that a driver has a constitutional right to drive while using a cell phone, since that conduct is prohibited by state law. The Court also rejected her claim for damages, finding that she incurred no injury since her ticket was set aside in the administrative adjudication process. Finally, the court upheld the ordinance against a preemption claim, finding that Chicago had the authority to enact the ordinance and impose the fines pursuant to its home rule powers.

Post Authored by Julie Tappendorf

Monday, March 20, 2017

Court Denies Preliminary Injunction in Case Challenging Chicago's Short Term Rental Ordinance


Late last year, we reported on a lawsuit challenging the City of Chicago's short-term rental ordinance. Chicago had adopted Ordinance O2016-5011 to regulate "shared housing units" by requiring hosts to register with the City and pay a 4% surcharge on the leasing charge for all rentals. The ordinance also required the hosting companies (i.e., AirBnb, Home Away, etc.) to pay a licensing fee (from $10,000 and up) and obtain a license from the City.  The lawsuit claims that the ordinance is unlawful for a variety of reasons, including that the required inspections constitute warrantless searches, the noise restrictions are unreasonable, and the 4% surcharge is a discriminatory tax.

Recently, the plaintiffs in the case filed a motion asking the judge to issue a preliminary injunction against the City of Chicago to prohibit the City from implementing and enforcing the new ordinance. Last week, U.S. District Court Judge Sara Ellis denied plaintiffs' motion for an injunction.

According to the written order, Judge Ellis expressed her doubts concerning the ability of the plaintiffs to show how the ordinance violates their constitutional rights or how they would suffer irreparable harm if the new rules take effect. Specifically, the Judge held that plaintiffs were not likely to establish that the City's shared housing ordinance targets expressive conduct or speech to trigger First Amendment protections. She also questioned plaintiffs' ability to succeed on its due process claims that the ordinance is vague. Finally, she noted that the City had a legitimate interest in adopting rules for the home sharing industry to address issues such as ensuring safety, protecting the residential character of neighborhoods, among others.

Post Authored by Julie Tappendorf

Friday, March 17, 2017

Recap: Illinois Planners Legislative Action Day 2017


Each year, the Illinois division of the American Planning Association organizes an annual legislative action day to reach out to state legislators on important planning issues.  This year's event occurred on March 14, 2017. Illinois planning professionals from around the state assembled in Springfield for APA Illinois’ third annual Planners’ Legislative Action Day (#PLAD17). 

The #PLAD17 attendees started their day over breakfast and enjoyed a lively and engaging discussion with Tom Henderson, Executive Director of the Illinois Tax Increment Association, on the importance of legislative advocacy by experts such as planners on matters involving the planning profession, practice, economic development, and land use regulatory powers. We also discussed how to approach your legislators to effectively make your concerns known about legislation that affects the planning profession and practice in Illinois. Finally, ideas were shared about how to increase APA Illinois’ profile in Springfield and become a recognized asset for legislators concerned about planning and development in Illinois.

#PLAD17 attendees toured the Capitol, sat in on both House and Senate floor sessions, attended committee meetings, and met with legislators to discuss a set of legislative priorities. Among these priorities were bills concerning: 

  •  Municipal annexation powers;
  •  Urban agricultural zones;
  •  Regional storm water management;
  • Rehabilitation and revitalization tax credits; and
  • Small wireless facilities deployment on public rights of way and other properties.
Details on the #PLAD17 legislative priorities can be found here.

The day was capped off by our End of the Day Reception at Arlington’s. Attendees shared their experiences and thoughts on next year’s Planners Legislative Action Day. We were also treated to a surprise visitor, Rep. Al Riley (D-38th Dist.). Rep. Riley is a certified professional planner and had many ideas on how the Chapter can become a resource for legislators and had very strong opinions, shared by the attendees, on the importance of Illinois planners making their voices heard in Springfield. Rep. Riley pointed out that planners occupy a very important and prominent role in the economic vitality of Illinois; they are, therefore, essential voices, in state policy-making concerning planning and development.

The APA Illinois Legislative Committee will be working over the balance of 2017 to:
  • Raise awareness of legislative matters,
  • Use data to better target legislative action messages to membership, and
  • Educate membership on the importance of legislative advocacy, and
  • Provide recommendations on how members can get more involved in a way that balances legislative advocacy and responsibilities to their communities.

As always, if you are interested in becoming involved with the Legislative Committee, have ideas on legislative initiatives or priorities, or simply have questions about the legislative process, including how you can make a difference, do not hesitate to contact any member of the Legislative Committee, including Ancel Glink's very own David Silverman.

Post Authored by David Silverman, Ancel Glink

Thursday, March 16, 2017

Court Finds that Church Sufficiently Stated Claims Under RLUIPA


A recent decision from an Illinois Appellate Court addressed whether a village may have violated the Religious Land Use and Institutionalized Persons Act (RLUIPA) when it sought to compel a church to repair a historic building.  Village of West Dundee v.  The First United Methodist Church of West Dundee.

According to the complaint, the property was a historic building owned by the defendant church which had fallen into disrepair. The church had previously applied for a permit to demolish the building.  However, the permit was denied by the village’s appearance review commission, who wanted to see the building restored.  The church did not appeal this initial denial.  Several years later, the village cited the church for numerous property maintenance code violations following an inspection of the building.  When the church failed to remedy the violations, the village filed suit seeking to compel the church to repair the building. The church filed a counterclaim alleging various claims, including violations of RLIUPA. The church also sought an order authorizing demolition of the building. However, the church’s counterclaim was dismissed, and the church was ultimately ordered to repair the building.  

On appeal, the court first reversed the trial court’s dismissal of the church’s demolition counterclaim, explaining that when a municipality seeks one form of relief (either repair or demolition) under Section 11-31-1(a) of the Illinois Municipal Code, the building’s owner is entitled to file a counterclaim seeking the alternative form of relief.

The court then addressed the church’s claims under RLUIPA.  The church claimed that requiring the building to be repaired instead of demolished would cost large sums of money, and would potentially ruin the church financially. The court found that the alleged repair costs could qualify as a “substantial burden” on the church’s free exercise of its religion in violation of RLUIPA if ultimately proved at trial. Further, the court rejected the village’s argument that its property maintenance code was not a “land use regulation” covered by RLUIPA’s protections. The church had alleged that the village’s application of its property maintenance code restricted its use of the land, which the church intended to use as parking for its congregation. The court found these allegations clearly fell within the purview of RLUIPA, and that the church’s claims should not have been dismissed. 

The court also found that the church had a viable unequal treatment claim under RLIUPA.  The village had previously authorized the demolition of several other historic structures for commercial uses, in contrast to its denial of the church’s demolition request. The court found that these allegations of arbitrary enforcement were sufficient to state an unequal treatment claim under RLIUPA.

Finally, the court found that the church had sufficiently alleged an inverse condemnation claim.  The court cited the church’s allegations that the village had effectively denied it the use of the property, even if only temporarily, without instituting an eminent domain action.  The court held that this was all the church was required to allege in order to state an inverse condemnation claim against the village.

Post authored by Kurt Asprooth, Ancel Glink

Wednesday, March 15, 2017

PAC Says Liquor Commission Not Subject to OMA



The PAC recently issued two advisory opinions finding that a Liquor Commission was not a public body subject to the Open Meetings Act. 

In 2016 PAC 43179, a requester had submitted a request for review to the PAC, alleging that the Bloomington liquor commission violated Section 2.01 of the Open Meetings  Act by conducting a special meeting and taking action without a quorum present. The Mayor, who also served as the City's liquor commissioner, conducted the meeting. 

The PAC looked to the definition of “public body” to determine whether the commission is subject to the Open Meetings Act. Section 1.02 of the OMA defines “public body” as: 
“…all legislative, executive, administrative or advisory bodies of the State, counties, townships, cities, villages, incorporated towns, school districts and all other municipal corporations, boards, bureaus, committees or commissions of this State, and any subsidiary bodies of any of the foregoing including but not limited to committees and subcommittees which are supported in whole or in part by tax revenue, or which expend tax revenue, except the General Assembly and committees or commissions thereof. "Public body" includes tourism boards and convention or civic center boards located in counties that are contiguous to the Mississippi River with populations of more than 250,000 but less than 300,000. "Public body" includes the Health Facilities and Services Review Board. "Public body" does not include a child death review team or the Illinois Child Death Review Teams Executive Council established under the Child Death Review Team Act, an ethics commission acting under the State Officials and Employees Ethics Act, a regional youth advisory board or the Statewide Youth Advisory Board established under the Department of Children and Family Services Statewide Youth Advisory Board Act, or the Illinois Independent Tax Tribunal.”  5 ILCS 120/1.02.
The PAC also looked to the Liquor Control Act of 1934, which provides that the Mayor “may appoint a person or persons to assist him in the exercise of the powers and the performance of the duties herein provider for such local liquor control commissioner.” 235 ILCS 5/4-2. The PAC found that this language confirmed that a liquor commission only acts to assist the Mayor in carrying out his duties as liquor commissioner, and does not assist him in carrying out his duties as head of the City Council.  As such, the PAC determined that the commission is not an advisory or subsidiary body of a public body such as the City Council and no violation of the OMA occurred.  


The same requester then submitted another request for review, 2016 PAC 42868, alleging that the Bloomington Liquor Commission violated the OMA by holding a meeting that was not open to the public.  The requester also alleged that the members of the commission violated section 1.05 of the OMA by failing to complete electronic training.  The commission responded that the commission is not a “public body” as defined by the OMA, and the PAC agreed.  The PAC looked to its opinion in 2016 PAC 43179, in which it found that the commission is not a public body subject to the OMA.  The PAC followed its previous opinion and again found that a liquor commission is not a public body and no violation of the OMA occurred.  

While these opinions are not binding on any other public body in the state, they do offer some guidance on how the PAC might review similar circumstances.

Post Authored by Erin Baker, Ancel Glink

Monday, March 13, 2017

FOIA Bill Addresses Repeated Commercial Requests


Another FOIA bill has been introduced. House Bill 4003 would amend section 3.1 of FOIA, the "commercial purposes" provision, to allow a public body to deny a request that meets all of the following three parameters:

  1. the request was made for a commercial purpose; 
  2. the request is made by the same person for the same records previously provided; and
  3. the request is made less than 6 months after the previous request.

It is not clear what type of request this bill would cover that isn't already covered by section 3(g) of FOIA. Section 3(g) already addresses repeated requests from the same person and is arguably broader than the new bill since it is not limited to commercial requests or repeated requests made within 6 months. That section provides as follows:
Repeated requests from the same person for the same records that are unchanged or identical to records previously provided or properly denied under this Act shall be deemed unduly burdensome under this provision.
We will keep you posted on this bill.

Post authored by Julie Tappendorf

Wednesday, March 8, 2017

Court Finds Park Policy Prohibiting Sex Offenders Unconstitutional


All Illinois local governments that operate public parks should be aware of the recent decision from an Illinois Appellate Court in People v. Pepitone.  In this decision, the Court found a statute prohibiting sexual predators and child sex offenders from entering public parks or park buildings unconstitutional.

In Pepitone, the Court was presented with a challenge Section 11-9.4-1(b) of the Criminal Code of 2012.  Section 11-9.4-1(b) makes it “unlawful for a sexual predator or a child sex offender to knowingly be present in any public park building or on real property comprising any public park.”  The defendant, who had previously been convicted of a child sex offense, was discovered by local law enforcement walking his dog in a public park.  The police officer discovered the defendant’s prior conviction after running his license plate, and arrested him for being a child sex offender in a public park in violation of Section 11-9.41-(b).  After being convicted at trial, the defendant appealed, claiming that Section 11-9.4-1(b) was facially unconstitutional.

The Court began its analysis by noting that Section 11-9.4-1(b) was clearly meant to protect the public from sexual predators and child sex offenders, but the real question was whether the total ban on previously convicted sex offenders from all public parks and buildings was a reasonable method of protecting the public.  The Court noted that two prior decisions had touched on the constitutionality of Section 11-9.4-1(b) and found the ban valid.  However, the Court was not persuaded by these prior decisions, finding their analysis incomplete.

Instead, the Court found Section 11-9.4-1(b) unconstitutional on substantive due process grounds because the statute criminalizes innocent conduct, as a person’s mere presence in a public park building or public park, without more, is not unlawful conduct.  The Court specifically mentioned that the statute not only prohibits the innocent act of walking a dog in a public park, but also prohibits a child sex offender from attending a wide variety of events in public parks such as picnics, concerts, and rallies.  The Court also noted that the statute prohibits a child sex offender from attending a Chicago Bears game or from visiting any of the major museums on the Chicago lakefront because they are located on Chicago Park District property.

Additionally, the Court relied on the fact that that the statute does not require that anyone, particularly a child, even be present in the park or park building for a violation to occur, nor does it attempt to assess the dangerousness of a particular individual or the likelihood of an individual offending again.

Ultimately, the Court found that Section 11-9.4-1(b) is unconstitutional on its face because it is not reasonably related to the goal of protecting the public, especially children, from child sex offenders or sexual predators, and that the statute arbitrarily stripped away the defendant’s rights as a citizen and taxpayer who had already paid the penalty for his crime.

Although the Court found the prohibition contained in Section 11-9.4-1(b) unconstitutional, the Court did not address the constitutionality of a similar provision, Section 11-9.3(a-10), which prohibits a child sex offender from knowingly being present in any public park or park building “when persons under 18 are present in the building or on the grounds and to approach, contact, or communicate with a child of 18 years of age” unless the offender is a parent or guardian of a minor present in the building or park. 720 ILCS 5/11-9.3(a-10).  Although this provision was not before the Court, the Court did reference a prior version of the Criminal Code that contained this exact language. The Court noted that, unlike Section 11-9.4-1(b), the language in Section 11-9.3(a-10) at least attempts to tie the child sex offender’s presence to times that minors are actually present in a public park or park building, and also requires that the offender approach, contact, or communicate with a minor for a violation to occur. 
 
Post Authored by Kurt Asprooth, Ancel Glink
 

Monday, March 6, 2017

PAC Finds No OMA Violation in Advisory Opinion


A long-time reader of the blog forwarded a copy of a recent advisory opinion issued by the Public Access Counselor (PAC) ruling in favor of a public body against a challenge that the body violated the OMA. 2016 PAC 42283
 
According to the opinion, an individual filed a request for review with the PAC alleging that the village board violated the OMA in two respects. First, the complaint alleged that the agenda for the village board meeting did not provide sufficient information to the public as to the action that was taken by the village board in approving a new residential development. Second, the complaint alleged that the board members held secret meetings and discussions outside of a properly noticed meeting to discuss changes to the development plan and approvals.
 
With respect to the first complaint, the PAC determined that the agenda was descriptive enough to comply with section 2.02(c) of the OMA. The agenda listed 3 separate action items relating to the development, including a reconsideration of a previous document, an ordinance granting a special use permit for a planned development, and a resolution approving the development concept plan and subdivision plat. The complainant argued that the agenda was deficient because it did not identify that this was a new 32-lot proposal or that it had been amended from a previously presented 34-lot proposal. The PAC ruled that there was no statutory requirement to identify the plan as new or amended or to otherwise provide more specific details about the plan, and found no violation.
 
As to the second complaint, the PAC determined that there was no evidence that Board members met or discussed the plan in violation of the OMA. The public body's counsel responded to the allegations in a letter to the PAC, reporting that he had discussed the allegations with individual board members and that there was no evidence to support these allegations. Based on these assertions, as well as the fact that the OMA does not apply to work performed by staff members or discussions by less than a quorum of the public body, the PAC found no support for this complaint.
 
Post Authored by Julie Tappendorf

Friday, March 3, 2017

Save the Date: 3rd Annual Planners Legislative Action Day


 SAVE THE DATE!
THIRD ANNUAL APA-IL PLANNERS LEGISLATIVE ACTION DAY
#PLAD17
Tuesday, March 14, 2017
Springfield, IL
 
APA-IL’s legislative action day events are open to planning professionals across the state and are designed for both first-time and previous participants. On March 14th, #PLAD17 will start with breakfast and a guest speaker from the General Assembly to discuss the importance of legislative advocacy and answer questions about the legislative process. The group will then go over a list of legislative priorities, before walking over to the Capitol to meet with legislators, attend committee meetings and House and Senate floor sessions. The event will close the day with a drinks and appetizers reception before returning home.
 
More details for #PLAD17 will follow soon, but as an immediate matter and depending on interest, we will provide bus transportation from the Metro East and Chicago areas. Please let Ancel Glink partner David Silverman, AICP, APA-IL Legislative Committee Chair, know whether you are interested in bus transportation from either Metro East or Chicago.
 
For more information, transportation arrangements, or to assist with the event, contact David Silverman at dsilverman@ancelglink.com.
 
Watch for #PLAD17 updates at ilapa.org/legislative-committee and via future email blasts.
 
Post Authored by David Silverman, Ancel Glink

Thursday, March 2, 2017

Court Dismisses Challenge to Legislative Counsel Ordinance


An Illinois appellate court recently upheld a decision by a village board majority to retain legislative counsel against a variety of challenges by the village president, including that the board's decision unlawfully interferes with the president's executive authority and that the law firm had a conflict of interest. Jones v. Brown-Marino, et al., 2017 IL App (1st) 152852-U.
In 2015, four trustees on a seven-member board desired to adopt an ordinance to retain legislative counsel to advise the board members. They discussed hiring a law firm that had previously represented them in a case against the village relating to certification of their names on the 2015 ballot.
Two days before the board passed the legislative counsel ordinance, the village attorney filed a lawsuit on behalf of the village president seeking to stop the trustees from passing the ordinance. The suit also sought to invalidate the legislative counsel ordinance or have the court disqualify the trustees’ law firm from serving as legislative counsel due to an alleged conflict. The village president argued the legislative counsel ordinance unlawfully usurped his executive authority to appoint attorneys for the village and unlawfully stripped certain duties and authorities from his duly appointed village attorney. He also alleged the ordinance was invalid because it failed to specify the time period in which it would be effective, and because there was allegedly no prior appropriation in the village budget to pay for legislative counsel.
The appellate court ruled in favor of the trustees, dismissing the village president's case. The court held that a village board is statutorily authorized to retain legislative counsel, that the ordinance was effective for as long as the board majority so desired, that the legislative body was not usurping the president’s executive authority, that there was an appropriate line item in the budget for legal services, and finally that there was no conflict of interest with the village in allowing the majority trustees to select their trusted law firm to serve as legislative counsel.
Post Authored by Adam Lasker, Ancel Glink
 
Disclaimer: Ancel Glink is the law firm serving as legislative counsel for the majority trustees.