Monday, September 1, 2014

Upcoming Stormwater Workshop

Brent Denzin of Ancel Glink will be presenting at an upcoming workshop on stormwater management and natural resources protection, detailed below:

2014 Beyond Basics Workshop
September 9, 2014, 1 – 3:30 p.m., Morton Arboretum
Better Ordinances for Sustainable Stormwater Management, Natural Resources Protection, and More Vital Communities

For more information, here is a link to the conference: http://www.theconservationfoundation.org/event.php?EventID=18

The workshop will be presented by a team with expertise in engineering, planning, community development, and municipal law. It will address common ordinance implementation issues and opportunities, such as: 
  • Eliminating barriers in existing subdivision and zoning codes
  • Providing incentives, such as detention credits, for green infrastructure innovation
  • Emphasizing cost-effectiveness of new approaches
  • Long-term maintenance considerations
  • Being proactive in anticipating new state/federal regulations
  • Encouraging green infrastructure to also enhance community character and quality of life
Workshop participants will receive a comprehensive ordinance checklist that was developed initially by Geosyntec Consultants for several watershed planning projects. More recently, in cooperation with the Chicago Metropolitan Agency for Planning, the checklist has been expanded with an extensive list of regional and national references. 

Friday, August 29, 2014

Rules Would Ban Smoking in Outdoor Patios and Beer Gardens

On August 15, 2014 the Illinois Department of Public Health published proposed regulations implementing the Smoke Free Illinois Act. 410 ILCS 82/1 et seq. The primary focus of the proposed regulations is to restrict smoking in outdoor areas accessory to restaurants and bars. 

Specifically, Section 949.30 provides as follows:
Smoking is prohibited in a restaurant, bar and any area where food, beverages or both are prepared or served by employees, including outdoor areas such as patios, beer gardens, decks or rooftops or concession areas....Smoking may be permitted in a self-service outdoor area where employees do not prepare or serve food or beverages and are not required to enter, leave or pass through during the course of employment. 

The self-service outdoor area must be “at least 15 feet away from entrances, exits, windows or ventilation and shall be designated as a ‘self-service outdoor area where smoking is permitted’ using clear and conspicuous signage.” The proposed regulations also prohibit smoking within 15 feet of, and the drifting of smoke through, entrances, exits, windows that open and ventilation systems that serve enclosed areas where smoking is prohibited under the Act.

Those in opposition to the proposed rules point argue that the Smoke Free Illinois Act was meant to be an indoor smoking ban and that these regulations go beyond that.  Also, some business owners argue they will have to modify their existing outdoor areas to meet the new requirements. Conversely, supporters of the regulations point to the Act’s ban on smoking in places of employment to justify any extension of the ban to outdoor area where employees serve. 

The proposed regulations can be found here

Post Authored by Caitlyn Sharrow & Julie Tappendorf, Ancel Glink

Thursday, August 28, 2014

New Posting Requirement for Elected Officials' Emails

The General Assembly recently amended the Local Records Act to require all units of local government (except Chicago) and school districts to post on their websites a single, uniform email address that members of the public can use to electronically communicate with their elected officials, unless the officials have individual email addresses for that purpose.  P.A. 98-0930.  The posting requirement does not apply to a local government’s social media sites such as Facebook or Twitter, just to the public body’s website. The email address must be "hyperlinked" and easily accessed from the public body's home page.

It is not entirely clear what the law means by the phrase “unless such officials have an individual email address for that purpose.”  Does that mean that a public body is excused from the posting entirely if the elected officials have individual email addresses? Or does it mean that the public body must post links to each of the officials’ individual email addresses on its website if each official has an email address?  

When initially introduced, the law required posting of each individual member's email address; however, that was changed to the current requirement of a single contact email. Because of the change in the language prior to approval, it would seem reasonable for local governments to post a single contact email address.  If a public body chooses that approach, someone should be assigned to monitor the uniform, single email address and make sure the communications are forwarded to the respective elected officials.

Note that the law has a home-rule preemption, so home rule municipalities are not exempt from the new posting requirement.

The new law is effective January 1, 2015, and local governments have 90 days after the effective date to comply with the new posting requirement.

Post Authored by Julie Tappendorf

Wednesday, August 27, 2014

Amendment to Bond Act Affects Local Government Contracts

On August 22, 2014, Governor Quinn signed HB 4769, amending the Public Construction Bond Act. P.A. 98-1018. That Act requires public bodies, including municipalities and other local governments to require contractors to provide security (i.e., letter of credit or surety bond) for any public works project costing over $50,000.  The amendment added the following language to the Act establishing minimum rating standards for surety companies that provide bonds for public projects: 
The surety on the bond shall be a company that is licensed by the Department of Insurance authorizing it to execute surety bonds and the company shall have a financial strength rating of at least A- as rated by A.M. Best Company, Inc., Moody’s Investors Service, Standard & Poor’s Corporation, or a similar rating agency.  
Local governments should make sure that the surety companies that provide bonds to secure public works projects over $50,000 meet these new rating requirements.  It would also be good practice for local governments to include language in any RFP, bid documents, and construction contracts putting contractors on notice of this new legal requirement.

Post Authored by Julie Tappendorf

Tuesday, August 26, 2014

The PAC Says...Interpreting the Public Comment Requirement of the OMA

Check out Julie Tappendorf's new article called "The PAC Says: Guidelines on the OMA's Public Comment Requirement" in the September edition of the Illinois Municipal League's monthly magazine, the Review Magazine.  You can read the online version here.  

Here is a sneak preview of the article:

On January 1, 2011, P.A. 96-1473 became effective, amending the Open Meetings Act to add a new section 2.06(g), as follows:
(g) Any person shall be permitted an opportunity to address public officials under the rules established and recorded by the public body.
Only 21 words, yet this law has created quite a flurry of activity in the Public Access Counselor’s office of the Attorney General since it was enacted.  35 PAC opinions, all non-binding, cite to this section of the OMA.  Although advisory only, these opinions do give public bodies a view into how the PAC broadly and expansively interprets and applies this law. 

I read all 35 opinions and categorized them into 10 PAC "words of wisdom":

1.   The PAC says…public comment must be provided at all meetings

Although language in an earlier version of the draft legislation that expressly required public comment at meetings was eliminated in the final version of the bill, in the PAC's view, every meeting must provide public comment.  That would seem to encompass regular, special, and even committee meetings if they fall under the OMA.

2.   The PAC says…the public comment requirement applies to subsidiary bodies

According to the PAC, every public body, including subsidiary bodies like the finance committee of the city council, must provide public comment at every meeting.

3.   The PAC says…each public body (including subsidiary bodies) must establish rules 

Every public body, including subsidiary bodies, must formally adopt rules for public comment.  According to the PAC, relying on "past practices" is not enough to comply with 2.06(g).

4.   The PAC says…a public body can establish time limits for public comment

Time limits on individual public comment and the total time allowed for public comment are acceptable, so long as they are adopted formally in established rules.

5.   The PAC says…a public body can limit comments to topics germane to the agenda

The PAC issued an opinion that public bodies can restrict the content of public comment to matters listed on the agenda of a special meeting.  It's not clear whether the PAC would extend this to regular meetings.

6.   The PAC says…a public body can establish and enforce rules on decorum 

According to the PAC, public bodies can interrupt and even remove members of the public who are violating the public body's rules.

7.   The PAC says…public comment can be provided at any point in the meeting

The PAC does not care when public comment is provided (beginning or end of the meeting) so long as it is provided at every meeting.

8.   The PAC says…public officials are not obligated to respond to comments

The PAC stated in a number of opinions that 2.06(g) is intended to allow the public to address members of a public body and does not require the public body members to answer questions or engage in debate.

9.   The PAC says…section 2.06(g) does not address members of a public body

2.06(g) protects members of the public, not members of the public body who may be silenced by the chair of the public body.

10.  The PAC says…there is no violation if there is no request to speak

A member of the public cannot claim a violation of 2.06(g) unless he or she has been prevented from speaking at a meeting.  So, failing to list public comment on an agenda is not a violation.  


There are two key pieces of advice that all public bodies should take from these opinions, which although advisory do provide some guidance. 

First, the PAC’s position is clear that every meeting of every public body (including subsidiary bodies) must include an opportunity for public comment. Allowing public comment at regular but not special meetings, or excluding public comment at committee meetings, would constitute a violation of section 2.06(g) in the PAC’s opinion.

Second, the PAC interprets section 2.06(g) to impose an affirmative obligation on every public body (including subsidiary bodies) to establish written rules for public comment at meetings. Having a long-standing policy on public comment is not enough to meet this obligation, at least not for the PAC.  A municipality would be well-advised to consult with its municipal attorney to ensure that its governing board and all subsidiary bodies and committees have established written rules to govern public comment at their meetings. 

Monday, August 25, 2014

Governor Issues an Amendatory Veto of Water/Sewer Tap-On Bill

Governor Quinn recently issued an amendatory veto of SB 3507.  You might remember that we previously reported on this bill that would have imposed a cap on the amount a township or municipality can charge for water and sewer tap-ons or connections.  The maximum tap-on fee could not exceed 1/6 of the estimated annual charges (or two months) for water and sewer services. The bill had passed both houses, and would have taken effect on January 1, 2015. 

The Governor's veto removes language that would limit municipal authority (the township limits remain in the bill).  This is good news for municipalities many of which were concerned about how the bill would affect special service areas, bond issues, recapture agreements, and various other agreements, besides the significant impact it would have on municipal revenues.

Post Authored by Julie Tappendorf

Police Procedure Changes Needed to Comply with New Sign & Drive Law

Governor Quinn signed into law Public Act 98-0870 (Senate Bill 2583), commonly known as the Illinois Sign & Drive Law, changing Illinois’ long-standing practice of requiring motorists that receive citations for petty offenses to turn over their driver’s licenses to police.  

The Act was introduced as a measure designed to limit the amount of time people spend without their primary form of identification – their driver’s license.  By passing the Act, the General Assembly acknowledged the important role a person’s driver’s license plays in their daily routine, from banking to travel to purchasing goods that cannot be sold to minors. 

The Act amends the Illinois Vehicle Code to eliminate the requirement that a cited motorist hand over his driver’s license as a guarantee that he or she will appear at his court date and/or pay the citation amount.  Instead, cited motorists only need to sign the citation, which serves as a promise that the motorist will pay the fine and/or appear in court.  Notably, the Act applies only to violations classified as petty offenses in the Illinois Vehicle Code or local ordinances, and excludes business violations and citations for violating Illinois’ maximum vehicle weight limits. 

What does that mean for municipalities? Effective January 1, 2015, local police and law enforcement officials will need to stop  requiring motorists cited for petty offenses to turn over their driver’s license.  Instead, police officers should require cited motorists to sign a copy of the citation, which serves as the motorist’s promise to appear in court and/or pay the required fine.  

Post Authored by Greg Jones, Ancel Glink

Friday, August 22, 2014

Ancel Glink to Present at Upcoming Illinois Municipal League Conference

Less than a month to go before the IML hosts its annual conference in Chicago.  A number of Ancel Glink attorneys will be presenting on a variety of topics at this year's conference, which is from September 18-20.  Ancel Glink is also hosting the President's Reception on Saturday, September 20th, from 6:00 p.m. to 7:00 p.m., so don't forget to stop by and say hello! 

The following is a list of the sessions at which  Ancel Glink attorneys will be speaking:  

Steve Mahrt will serve as the moderator of the attorneys’ session on Thursday, September 18, 2013.  To register for this CLE session, visit here.

Darcy Proctor will present “2014 Year in Review:  Illinois Tort Immunity Update” at the attorneys' session on Thursday, September 18, 2013.  To register for the conference, visit here

Derke Price will be presenting on the topic of “Finance:  Lessons from Detroit and Pension Cases” on Thursday, September 18, 2014.  For additional information, visit here

Dan Bolin and Adam Simon will be presenting on the topic, “The Second Amendment and Zoning:  The Other Side of Concealed Carry” on Saturday, September 20, 2014. For additional information, visit here.  

Julie A. Tappendorf and David S. Silverman will be presenting on the topic of “How Much Process is Due Process” on Saturday, September 20, 2014.  For additional information, visit here.    

Keri-Lyn J. Krafthefer and Adam W. Lasker will be presenting “Clerks:  Legislative and Legal Update” at the clerk’s session on Saturday, September 20, 2014.  For additional information, visit here.  

Stewart Diamond, Rob Bush, Keri-Lyn Krafthefer, Derke Price, Julie Tappendorf and Steven Mahrt will be presenting “Council Wars” on Saturday, September 20, 2014.  For additional information, visit here.  

Thursday, August 21, 2014

Water Contract Void Because it Exceeded 40 Year Term

In 2004, the Village of Chandlerville entered into a contract with a rural water district (CWRD) for CWRD to supply water to Chandlerville that it would purchase from the City of Virginia.  4 years later, while Virginia was constructing a new water-treatment facility needed to supply Chandlerville with water, Chandlerville informed CWRD that it no longer intended to purchase water through CWRD.  Virginia sued, claiming that Chandlerville breached its water contract.  The trial court dismissed the case, finding among other things, that the contract was void ab initio (at the outset)because it exceeded the 40 year statutory term. 

In an unpublished opinion, the appellate court agreed with the trial court that the contract was void for exceeding a 40 year term.  City of Virginia v. Village of Chandlerville, 2014 IL App (4th 130851-U).  Although the contract provided for a 40 year water-delivery provision, that provision would not commence until after Virginia finished its construction project, which was expected to take at least 5 years.  The Illinois Municipal Code states that a contract for a water supply is “not to exceed 40” years.  65 ILCS 5/11-124-1(a).  Because the contract would exceed the 40 year term by at least 5 years (counting both the construction phase and the water-delivery phase), it was void because Chandlerville lacked the authority to enter into the contract.

Municipalities should be careful in drafting contract terms to avoid violating any statutory contract terms.  Even if the stated term of the contract is within the statutory limitations, if the contract could exceed the term because of any pre-requisites (like the construction phase in the Chandlerville contract), it could be void and unenforceable.   

Post Authored by Julie Tappendorf, Ancel Glink

Wednesday, August 20, 2014

Defending Sexual Harassment, Abuse & Molestation Claims

Ancel Glink Partners Darcy Proctor and Lucy Bednarek co-authored the article "Defending Sexual Harassment, Abuse, and Molestation Claims" recently published in the July edition of DRI's "For the Defense" publication.  The article provides a background of Title IX, the federal law prohibiting sex-based discrimination in education" and summarizes the standards for proving a Title IX harassment or abuse claim.  The article also provides guidelines for school districts in defending against these claims, and more importantly, in preventing them. 

You can read the article on DRI's website here (starting on page 71).

Tuesday, August 19, 2014

Firing Range is Permitted By-Right in Business District

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

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

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

Post Authored by Julie Tappendorf, Ancel Glink

Monday, August 18, 2014

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


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

You can read more about the case here.