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Thursday, May 31, 2012

HB222 Heads to the Governor: Requires Additional Salary Disclosures

HB222, sponsored by Representative Jack Franks, extends the reach of the Illinois Transparency and Accountability Portal (ITAP) to municipalities, counties and townships, but excludes all other forms of local government.  Under the bill, Central Management Services would have to expand ITAP to create a searchable database of all current county, township and municipal employees sortable by (i) employing unit of government, (ii) employment position title, and (iii) current pay rate and year-to-date pay.  Likewise, the Counties Code, Township Code and Municipal Code are each amended to require compliance with rules that will be established by CMS for providing the information that will populate the database.  The bill contains a home rule preemption.
In addition to creating an unfunded mandate for municipalities and other government entities, the proposed legislation also aggregates information that is already largely available under the recently enacted salary posting requirement under the Open Meetings Act.  Unfortunately, this bill seems to apply to all employees, including seasonal, part-time and temporary employees - even those who make minimum wage or who don't qualify for IMRF.
Make sure to watch for new rules from CMS regarding the uploading of salary and employee information once the bill is signed by the Governor.
Post Authored by Adam Simon, Ancel Glink

Wednesday, May 30, 2012

Existing Gambling Bans Won't Apply to Video Gaming Under Proposed Legislation

In 2009, the Illinois General Assembly passed the Video Gaming Act.  That Act legalized video gaming in Illinois and authorized the Video Gaming Board to adopt licensing standards and other regulations for video gaming. 

Section 27 of the Video Gaming Act currently provides that municipalities can prohibit video gaming within their corporate limits by ordinance.  Some municipalities have pre-existing gambling bans in their municipal codes that prohibit all gambling within the community.  The Video Gaming Board has taken the position that these pre-existing gambling bans apply to video gaming, meaning that these municipalities need not adopt a specific ordinance to ban video gaming.  That will change, however, if House Bill 4466 is adopted.  

HB 4466 would amend Section 27 of the Video Gaming Act concerning municipal gambling bans.  Under the new language, a municipality can only ban video gaming by adoption of an ordinance after July 13, 2009.  Consequently, pre-existing gambling bans would not apply to video gaming (except in Chicago).  The proposed legislation also preempts home rule. 

If this bill is enacted, a municipality that wants to ban video gaming within its corporate boundaries will need to adopt a specific ordinance to prohibit video gaming rather than rely on a comprehensive gambling ban enacted before 2009.

Post Authored by Julie Tappendorf, Ancel Glink.

Tuesday, May 29, 2012

Legislature Considers Abandoned Residential Property Bill

A recent bill that would amend various state laws pertaining to abandoned residential properties and foreclosures (SB 2534) passed the Illinois Senate on Friday, May 25th, and now goes to the House.  The bill includes the following provisions: 

·        Provides that the removal of any notice posted on abandoned residential property would be a criminal trespass.
·        Exempts lenders and their agents from prosecution for criminal trespass for securing abandoned residential property. Also provides that lenders and agents would not be liable in any civil action for negligence or civil trespass.
·        Defines "abandoned residential property" as residential real estate that: (a) is not occupied by any borrower or lawful occupant as a residence or contains a structure that is uninhabited and needs to be repaired; and (b) the property has 2 or more (instead of one or more) of these characteristics: uncompleted construction has not resumed for at least 6 months; the property was stripped of copper or other materials or interior fixtures; it was legally declared unfit for occupancy; doors or windows are broken; law enforcement officials have received a report of illegal activity on the property; utility services to the property have been terminated; a clear intent to abandon the property is evident; written documents exist which indicate an intent to abandon the property; or it is open, unprotected, and in danger of suffering damage; or the real estate is a residential vacant lot in need of repair.
·        Requires the lender to file an affidavit stating that the property is not occupied by the borrower or any lawful occupant as a principal residence.
·        Eliminates current statutory provisions that a lender is responsible for repairs or other maintenance to abandoned residential property if a lender purchases the property at the foreclosure sale and the sale is confirmed by the court.
·        Requires payment of a $250 filing fee at the time of filing a foreclosure complaint, replacing the current judicial sale fee.  Those filing fees will be deposited into the Abandoned Residential Property Municipality Relief Fund.
·        Requires that notice of a hearing to confirm a sale of abandoned residential property must be mailed to the last known address of the borrower, and that any lawful occupant may appear at the hearing. 
·        Modifies the redemption period for abandoned residential property to immediately prior to the judicial sale (instead of the date that the judgment of foreclosure is entered).
Post Authored by Julie Tappendorf, Ancel Glink

Thursday, May 24, 2012

CIA Waterboarding Records Exempt under FOIA

In ACLU et al. v. Department of Justice et al., the 2nd Circuit Court of Appeals recently upheld a lower court ruling that exempted the CIA's waterboarding records and a photograph of Abu Zubaydah during his interrogation from disclosure under the federal Freedom of Information Act.  Various groups (including the ACLU and Center for Constitutional Rights) had filed FOIA requests with the Department of Justice and the CIU for records relating to detainee mistreatment, deaths in custody, and the use of waterboarding on terrorism suspects.  Although approximately 150,000 pages of documents were released, other records were withheld or redacted.  The Court ruled that the federal FOIA protects certain classified material from public view, including records pertaining to intelligence activities. 

Post Authored by Julie Tappendorf, Ancel Glink.

Wednesday, May 23, 2012

ADA Does Not Protect Medical Marijuana Dispensaries

The Americans with Disabilities Act does not preclude municipalities from shutting down medical marijuana dispensaries, according to the 9th Circuit Court of Appeals.  In  James v. City of Costa Mesa, the Court dismissed a lawsuit brought by four California individuals with severe disabilities who have medical marijuana prescriptions. 

The plaintiffs had obtained medical marijuana through facilities located in Costa Mesa and Lake Forest, California.  However, the cities had recently taken steps to close marijuana dispensing facilities operating within their boundaries.  Costa Mesa adopted an ordinance excluding medical marijuana dispensaries completely in 2005.  Lake Forest, brought public nuisance actions in state court seeking to close medical marijuana facilities operating within city limits. 

Although the Court sympathized with the disabled plaintiffs, the Court determined that that Congress has made it clear that the ADA defines “illegal drug use” by reference to federal, rather than state, law, and federal law does not authorize the plaintiffs’ medical marijuana use.  Consequently, the Court concluded that the plaintiffs’ medical marijuana use is not protected by the ADA.

Post Authored by Julie Tappendorf, Ancel Glink.

Monday, May 21, 2012

“Gyrocopter” Special Use Permit Doesn’t Fly

The Fourth District Illinois Appellate Court recently struck down a property owner’s special use permit as unconstitutional because the use almost exclusively benefited the owner. The special use permit was for a “restricted landing area” for the owner’s “personal gyrocopter.” A “gyrocopter” is an experimental aircraft with one or two seats, an open cockpit, and a gasoline engine that typically flies at an altitude of 600 to 1,000 feet. A “restricted landing area” is essentially a private non-commercial aircraft runway. Neighbors objected to the special use permit ordinance, and the trial court held the ordinance was unconstitutional.

Friday, May 18, 2012

Church's RLUIPA Challenge to Denial of Permit Goes to Trial

The Northern District of Illinois recently considered a RLUIPA challenge to the denial of a building permit to a religious organization in the case Liberty Temple Full Gospel Church, Inc. v. Vill. of Bolingbrook, 2012 WL 1230728 (N.D. Ill. 4/12/2012).   The church was searching for a new location for worship services for its congregation that had previously been holding worship services in a hotel.  When they approached the municipality about their first chosen site, the municipality raised concerns about the chosen location, among other issues.  They found a second site and submitted an application for a building permit, which was denied because the municipality determined that a special use permit was required.  The Church filed suit against the municipality under the Religious Land Use and Institutionalized Persons Act (RLUIPA) claiming a substantial burden on religious exercise by the Village’s actions. The Village moved for summary judgment claiming that the Church was not substantially burdened because they never applied for the special use permit.

Tuesday, May 15, 2012

Upcoming Program for Local Government Attorneys

Local Government:  Issues in Challenging Times Program
Presented by the ISBA Local Government Law Section

Get the information you need on economic development issues, mid-contract actions, and the role of social media with this informative half-day seminar. A discussion on the ethical issues concerning the secrets within the attorney-client relationship and a transparent government is also included. 

Attorneys engaged in representing or dealing with any form of municipal government will benefit from the information presented throughout this seminar.  The program qualifies for 4.0 hours MCLE credit, including 2.0 approved Professional Responsibility MCLE credit.

Julie Tappendorf of Ancel Glink will discuss the impact of social media use and the legal and ethical issues it presents for local government officials and employees and government lawyers.

Thursday, May 17, 2012
8:30–12:45 p.m.


Thursday, May 24, 2012

Monday, May 14, 2012

Court Denies Request to Transfer Between School Districts

The general law in Illinois does not favor the transfer of land between school districts.  The courts are most interested in the welfare of individual students and clear evidence that a transfer will benefit the students.  The party seeking annexation and detachment has the burden to prove that “the overall benefit to the annexing district and the detachment area clearly outweighs the resulting detriment to the losing district and the surrounding community as a whole.”  The courts look at these cases with great care and finds no difficulty in overturning decisions which simply do not seem to be fair.  The tests include “educational welfare,” “community of interests,” and the “whole child.”  The courts will also look into financial loss to the detaching district. 

Tuesday, May 8, 2012

Register Now for Planning & Land Use Law Seminar

Calling all planners and local officials!  Ancel Glink & Houseal Lavigne Associates will present a free half day seminar on two consecutive Fridays in June to update planners and local officials and employees on planning and zoning issues.  The first program will be held on June 15, 2012, in Bloomington-Normal.  The second program will be held on June 22, 2012, in Naperville.  Both sessions will run from 8:30 a.m. to noon.

The program will cover the following topics:
  •  Land Use Law Update, presented by Ancel Glink attorneys
  •  Zoning Practice Visualization, presented by Houseal & Lavigne
CM credit (3.0 Total, 1.5 Law) is pending.  Stay tuned for more details about the program.

For more information about the Naperville or Bloomington-Normal event or to RSVP, contact Kathy Cook (kcook@ancelglink.com or 312-604-9174)

Monday, May 7, 2012

Another Update on OMA Bill (House Bill 4687)

The Illinois Senate introduced another amendment (Senate Amendment 3) to House Bill 4687, that would amend the Open Meetings Act regarding agenda language.  The new language is as follows:

"Any agenda required under this Section shall set forth the general subject matter of any resolution or ordinance that will be the subject of final action at the meeting..."
This language applies only to items subject to "final action," addressing concerns we raised with earlier versions of the bill that would have required all matters, even discussion items, to be listed on an agenda.  The phrase "general subject matter" replaces the previous version of this bill that required a public body to list the "informational title" of an ordinance or resolution. 

We will keep you posted on the status of this proposed legislation, which was recently passed out of committee.

UPDATE:  July 19, 2012, Governor signs bill into legislation.

Post Authored by Julie Tappendorf, Ancel Glink

Thursday, May 3, 2012

Municipalities Can Win Appeals from the Denial of Cellular Zoning Decisions!

On April 24, 2012, the United States District Court for the Northern District of Illinois granted summary judgment for the Village of Huntley against SBA Towers, which had sought a special use and variance to erect a 175 foot tall monopole antenna.  SBA Towers II LLC v. Village of Huntley, No. 11 C 4322 (April 24, 2012).  Relying largely on Helcher v. Dearborn County, 595 F.3d 719 (7th Cir. 2010), the Court found that the Village satisfied the dual requirements of 47 U.S.C §332(c)(7)(B)(iii) for a denial to be in writing and based on substantial evidence contained in a written record.  Below I will review each part of the Court’s decision.

Wednesday, May 2, 2012

Saving on Storm Water: An Unexpected Guide to Balancing Your Budget

When cutting costs, few municipalities start with an overhaul of their storm water management program. But, as it turns out, they should.  Storm water management eats up a large percentage of property tax revenue (e.g., 20% of property taxes in Downers Grove, Illinois).  By establishing a storm water utility, or just modifying existing landscaping ordinances, local governments can significantly reduce costs while improving their performance.  On Friday, May 4, 2012, at the Downstate City/County Management Association’s spring conference in Utica, Illinois, Ancel Glink environmental attorney Brent Denzin will outline strategies and practical steps that local governments can take to put these strategies into action.  A copy of the conference brochure is here.

Post Authored by Brent Denzin, Ancel Glink.

Tuesday, May 1, 2012

Cook County Recommends Annexation of Unincorporated Areas

A task force formed by Cook County President Toni Preckwinkle recently issued a report recommending that  all unincorporated areas of Cook County be eventually annexed into existing municipalities.  The report concluded that the costs of continuing to provide "municipal"-type services to unincorporated areas strains county financial resources, which reduces the available funds for the county's primary functions of providing health care and criminal justice to county residents.  The goal is to encourage municipalities to annex unincorporated parcels so these properties will receive local policing, code enforcement, and other services from municipalities rather than the county. 

A press release issued by President Preckwinkle summarizes the following goals in the report: