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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

Wednesday, August 29, 2012

Illinois Municipalities Free to Ban Plastic Bags?

On August 27, 2012, Governor Quinn vetoed the plastic bag bill, SB 3442.  That bill would have required manufacturers of plastic bags to register with the state and file a recycling plan.  Under the proposed law, retailers would have been prohibited from purchasing bags from manufacturers who were not registered.  More important to municipalities, the bill would have preempted local restrictions on plastic bags such as local bans or plastic bag fees.  The bill had been opposed by a number of organizations, including the Illinois Municipal League, Northwest Municipal Conference, Sierra Club, and various other groups and public officials. 

While some are touting the veto as opening the door to widespread local restrictions on plastic bags in Illinois, it is important to remember that non-home rule municipalities must still demonstrate adequate statutory authority (either direct or implied) before implementing a ban on plastic bags or imposing a plastic bag fee.  Currently, there is no statute that expressly authorizes municipalities to adopt regulations on the use of plastic bags, so a non-home rule municipality may need to look to multiple sources for authority. 

Post Authored by Julie Tappendorf, Ancel Glink

Friday, August 24, 2012

Court Upholds Ban on Short-Term Rentals

Property owners challenged a City ordinance that prohibited short-term rental of their property.   Prior to purchasing the property they intended as a second home, the owners reviewed the City Zoning Code and did not find any express prohibition against short-term rentals.  There was, however, an express ban on short-term rentals in a separate ordinance adopted in 2008.  The owners sued the City, claiming that the 2008 ordinance was invalid because the City filed it with the City Clerk rather than the County Recorder, as required by the Zoning Code.  As a result, the owners argued that they had no notice of the regulation as it was not contained in the Zoning Code and did not show up on their title search.  The Court ruled in favor of the City, finding that the recordation requirement was not mandatory, and that the short-term rental ordinance was valid.  Aamodt v. City of Norfolk.

While the Court did not invalidate the short-term rental ordinance for failure to follow the filing procedures, municipalities are encouraged to consistently follow local and statutory filing or recording procedures, where applicable.  This practice could prevent time-consuming and expensive litigation for the municipality, as well as put future property owners on notice of changes to zoning regulations that could affect their proposed use of property.

This case was recently reported on Patty Salkin's blog, Law of the Land and can be found here

Thursday, August 23, 2012

Lawsuit Claims City Facebook Page is a Public Forum

On Tuesday, a lawsuit was filed against the City and County of Honolulu alleging that the City violated the First Amendment by removing comments posted by certain individuals on the City Police Department's (HPD) official Facebook page and banning those individuals from the site.  Hawaii Defense Foundation, et al. v. City and County of Honolulu, et al., CV 12 00469 (filed August 21, 2012).  The lawsuit claims that the HPD created a public forum on its Facebook page, and analogized the site to a public park, a traditional public forum.  According to the complaint, the HPD had removed  comments that were critical of the police department solely based on the content or viewpoint of the speech, rather than for violation of the HPD's Facebook use policy.  That policy prohibits comments that are obscene, sexually explicit, racially derogatory, defamatory, solicits or is an advertisement, and that suggests or encourages illegal activities.

As reported on this blog previously, there is little or no case law on the application of the First Amendment to government social media sites.  Consequently, there is little guidance for municipalities in how to administer their social media sites or enforce their terms of use policies.  It will be interesting to see how this case is resolved, and particularly whether the district court will accept the plaintiffs' argument that a Facebook page is a traditional public forum for purposes of a First Amendment claim.

We will keep you posted on this case. 

Post Authored by Julie Tappendorf, Ancel Glink 

Wednesday, August 22, 2012

New Reporting Law for Sales Tax Rebate Agreements

House Bill 3859 was recently signed by the Illinois Governor as P.A. 97-0976.  The new law requires counties and municipalities to file reports with the Department of Revenue regarding tax-rebate agreements within 30 days after execution of a sales tax rebate or sharing agreement, or within 90 days after the effective date of the new law for agreements entered into prior to the new law.  The report must be submitted electronically, on the DOR form, and must contain the following information:
  1. the names of the municipality and business; 
  2. the location or locations of the business within the municipality; 
  3. additional locations of the business in Illinois not identified above, if applicable;
  4. the terms of the agreement, including (i) how the rebate will be determined each year, (ii) the duration of the agreement, and (iii) the name of any business who is not a party to the agreement but who directly or indirectly receives a share, refund, or rebate of the retailers' sales tax; and 
  5. a copy of the sales tax rebate agreement. 
The Department and the municipality are required to redact the sales figures, the amount of sales tax collected, and the amount of sales tax rebated prior to disclosure of informationThe law also amends the Freedom of Information Act to recognize an exemption for this redacted information. 

The new law takes effect on January 1, 2013.

Post Authored by Julie Tappendorf, Ancel Glink.

Tuesday, August 21, 2012

A "Must Have" Resource on Sign Regulation Just Released

Free speech law is critically important for on premise sign regulation. Signs are an expressive form of free speech protected by the free speech clause of the Federal Constitution. Courts decide how local governments can regulate signs, including on premise signs, in order to ensure the principles of freedom of expression are observed.  If free speech requirements are not met, courts will hold an on premise sign law unconstitutional. 

The above quotation comes from Free Speech Law for On Premises Signs, Daniel Mandelker (August 10, 2012).  This quote reminds us of the importance of understanding the protections afforded to on premises signs by the First Amendment to the U.S. Constitution.  Professor Mandelker, a friend of this blog, just completed and released his sign handbook comprehensively analyzing the interplay between the First Amendment’s free speech law and on premises signage.  His sign handbook is a must-have resource for all land use and municipal lawyers and practitioners.

Professor Mandelker’s handbook begins by discussing U.S. Supreme Court cases that have decided the basic principles of free speech law, including the tests developed by the Court for regulating commercial speech.  The book also explains the prior restraint doctrine that applies to the process in which decisions about the display of signs are made, including the standards that must be used to make these decisions. The handbook discusses basic issues concerning on premise sign ordinances, such as how a municipality can demonstrate that an ordinance advances its aesthetic and traffic safety objectives, the importance of a statement of purpose, how on premise signs should be defined, sign exemptions, and the treatment of on premise signs under the Federal Highway Beautification Act.  The handbook reviews the law that applies to the different types of signs that can be displayed on premise, such as time and temperature signs, portable signs, and digital signs.  Finally, the handbook discusses the regulations that apply to on premise signs, such as size, height, and spacing regulations.

You can download the book for free on the United States Sign Council site at http://www.ussc.org/dbFiles/MandelkerFreeSpeechLawforonPremiseSignsAug92012.pdf or at Professor Mandelker’s blog at http://law.wustl.edu/landuselaw.

Monday, August 20, 2012

In the Zone "E-News" - Summer Issue 2012 Released

Check out the summer issue (2012) of Ancel Glink's e-newsletter which you can find in Ancel Glink's Resource Center, under publications In the Zone: Current Trends in Land Use Law, for updates on new laws and recent cases in the land use and economic development area.  Here is a sneak peak into this edition:

How Far Does the Second Amendment Extend Beyond the Home?

What does the 2nd Amendment have to do with land use?   Based on recent rulings from the U.S. Supreme Court and lower courts across the country, communities should tread carefully in adopting or enforcing local gun laws that interfere with the core right to possess a handgun in the home for self defense.  Read the E-News to find out more. 

New Law Affecting Your Zoning Hearings and other Public Meetings
As reported previously on this blog, the Illinois legislature has adopted a new law affecting meetings.  Before scheduling a vote on zoning ordinances in 2013, you should review P.A. 97-0827 that adds two new requirements for agendas and notices:

1.  Agendas must identify the "general subject matter" of ordinances and resolutions to be voted on at a meeting.
2.  Agendas and notices must be continuously available to the public 48 hours before a meeting.

The summer edition also includes a summary of recent cases and other legislation impacting land use and zoning issues. 

Friday, August 17, 2012

Liability Alert: Parking Ticket on Windshield Could Violate Driver’s Privacy Protection Act

The ease of issuing a citation for an illegally parked car and simply placing it on the windshield might be a thing of the past, or at least in its present form.

In Senne v. Village of Palatine, the Seventh Circuit recently held that an individual stated a claim that the Village violated the Driver’s Privacy Protection Act (DPPA) when a police officer left a parking citation on an illegally parked car.  The DPPA prohibits others from obtaining, disclosing, or using personal information from a motor vehicle record.  Here, the Court found that the citation did just that – the citation contained information that was obtained from the state motor vehicle records, and the officer disclosed that information by placing it on the windshield where the public could view it.  Interestingly, the court held that a "disclosure" under the Act does not require proof that anyone actually viewed the personal information.

The DPPA does provide a number of exceptions to the disclosure ban, such as disclosures that are required for a law enforcement agency to carry out its functions and disclosures that are used in connection with a service of process.  While the Court agreed with the Village that placing the ticket on the windshield was indeed a process of service, it determined that the ticket contained more information than was necessary.  As a result, it did not fall within the "service of process" exception under the Act.  The case will now go back to the trial court for further proceedings.

The potential liability to municipalities is reason enough to review municipal actions that may be considered disclosures under this Act.

Thank you to Sara Smith for her assistance on this post.

Thursday, August 16, 2012

Electoral Board Violated Open Meetings Act in Deciding Objection Prior to Meeting

 The PAC office of the Illinois Attorney General recently issued an advisory opinion finding that the City of Naperville’s Municipal Officers Electoral Board violated multiple sections of the Open Meetings Act.  An individual had alleged that the Electoral Board made its decision to sustain an objection to a petition to place an advisory referendum on the ballot behind closed doors and prior to the Electoral Board meeting. He further alleged that the Electoral Board failed to provide proper notice of the meeting and an opportunity for public comment at the meeting.

According to the PAC opinion, members had individually reviewed the evidence and signed a written decision to sustain the objection prior to the Electoral Board meeting.  Then, at the meeting, the members voted to approve the written decision, announcing that “the written decision and order of the Board” concluded the matter.  The PAC determined that the Electoral Board violated the OMA because it requires that “any final action shall be preceded by a public recital of the nature of the matter being considered and other information that will inform the public of the business being conducted.” The Attorney General emphasized that public bodies must deliberate openly.  

The PAC also determined that the Electoral Board violated the OMA by not listing the agenda items on the meeting notice and by not providing an opportunity for public comment at the meeting.

However, the PAC found no evidence that two or more Electoral Board members held a “contemporaneous interactive discussion” concerning the matter so the Board did not hold an undisclosed, private meeting in violation of the OMA.

It is important to remember that an earlier version of the bill that amended the OMA to require public comment expressly stated that public comment would be required "at meetings" of the public body.  That language did not find its way into the approved version of the bill, however.  The statute, as approved, simply requires a public body to provide an opportunity to address public officials under the rules established by the public body.   Nevertheless, the PAC appears to have interpreted the statute to mandate that the Electoral Board allow public comment at its meeting.  Given the broad scope of the PAC's opinions lately and this ruling, it appears that the PAC is reading into the OMA a requirement that public comment be provided at every meeting of a public body, even though that is not the statutory requirement. 

Post Authored by Julie Tappendorf, Ancel Glink 

Wednesday, August 15, 2012

New Book Just Published - "Development by Agreement"

The ABA Section of State and Local Government Law is releasing its newest book, "Development by Agreement:  A Tool Kit for Land Developers and Local Governments," later this month.  The book is co-authored by Municipal Minute moderator Julie Tappendorf, along with David Callies and Cecily Talbert Barclay.  The book provides an overview of problems that can be solved by entering into land use agreements, as well as a detailed discussion of development, annexation, TIF, conservation, subdivision, community benefits, affordable housing, among many other agreements between municipalities and developers/property owners.  Practitioners will find the appendices particularly helpful as they include sample agreements and checklists for a variety of land use situations. 

UPDATE 9/5/12:  The book is now available on the ABA's website by clicking on this link

Monday, August 13, 2012

Protecting the "Public" in Public-Private Partnerships

The term "public-private parternship" has received a lot of recent press with news that officials in San Francisco and Chicago are considering the use of eminent domain on "underwater" mortgages.  Whether either or both cities (or other municipalities) will move forward with these plans remains to be seen, but this news has brought to the forefront the concept that public and private entities frequently work together on projects and programs intended to benefit the public. 

There are hundreds of examples of public-private partnerships (PPP) across the country.  On the grandest of scales include major league ball parks, the LA zoo, the Chicago Skyway, and the Chicago and other municipal parking meter systems.  On a smaller scale, municipal halls and police stations, park swimming facilities, and infrastructure improvements such as bridges, roads, and utility facilities are often financed and constructed through a PPP.  Regardless of the size or scope of the project, it is important for the public entity to negotiate an agreement that protects the public entity and provides long-term public benefits.

There are a handful of issues that a public entity should consider and guard against when negotiating a public-private partnership. 

1.   Understaffed and Outbargained.  Many small municipalities have minimal staff that does not have either the experience or the expertise to negotiate a contract of the nature and scope of a PPP.   In fact, it is not unlikely to encounter a situation where municipal staff and officials have never negotiated a PPP, where the private entity has negotiated dozens or even hundreds of these deals.  If the municipality does not have the staff on hand to negotiate the deal, it should consider retaining outside consultants with engineering, legal, and financial experience to negotiate on the public sector's behalf. 

2.  Complex.  A PPP can have multiple stages, and multiple players are usually involved, both on the public and private side.  It is crucial to make sure the organizational structure of the team is established from the outset detailing the "players" on each team and their responsibilities.  A schedule setting forth the timeline for completion of the major stages of the development or project is also important.

3.  Time-consuming.  A PPP is a long-term contract, and will involve a lengthy negotiation and approval process.  The parties are likely to encounter regulatory delays, legislative approvals, and permitting and other requirements that extend the time for approval of the project.  These issues should be, wherever possible, identified up-front and incorporated into the timeline and scheduling so all players are aware of these potential timing issues.  If zoning approval is necessary, it should be scheduled as early in the process as necessary; same for legislative approval, if required. 

4.  Public Opposition.  A PPP can generate public opposition, which can delay (and sometimes derail) a project.  The public may have concerns about rate or tax increases, conflicts of interest, land use conflicts, and loss of public resources or other programs.  Transparency early in the process can help to alleviate some of these concerns, as can open and frequent communication to update residents and other stakeholders as to the progress and scope of the project and negotiations. 

5.  Private Motivations.  It is important to remember that the private entity enters into a PPP to make a profit.  Period.  Thus, the private entity's motivations will not be the same as the public entity.  The public entity must ensure that the private sector's motivation of profits does not result in the loss of quality, service, or standards for the municipal project or program.  That may require the public entity to negotiate restrictions to control cost increases and to require high standards.

6.  The Wrong Option.  A PPP can be a very attractive method of financing public infrastructure or projects.  That does not mean it is the only option, and a public entity should explore all available options, including costs, timing, and scope of project, to determine which option (PPP, privatization, public sector financing and construction, etc) is the best for this particular project.

7.  Financial Risks.  The biggest financial risk in a PPP is that the public entity undervalues its asset and receives inadequate compensation (or pays too much) for the project.  The use of experienced consultants by the public sector will help guard against this risk.  The second financial risk is that the municipality spends the proceeds on short-term needs rather than investing in programs with long-term benefits.  This can be solved with early planning and discussion of use of proceeds, particularly in a situation where the public sector is selling an asset (i.e., parking meter system). 

Post Authored by Julie Tappendorf, Ancel Glink.

Wednesday, August 8, 2012

Court Rejects Challenge to Library Referendum

Voters in a library district approved a referendum to increase property taxes.  Following the referendum, petitioners filed an election contest petition in the circuit court alleging that the library district and its trustees violated campaign financing and disclosure laws by supporting and encouraging passage of the referendum and expending public funds to promote and advocate for the referendum. The petitioners asked the court to declare the election null and void and to enjoin the library district from any further expenditures for political or private purposes.  The circuit court dismissed the case finding that the petitioners had failed to state a cause of action, and the petitioners appealed.  The appellate court affirmed the trial court's dismissal of the case in Sherman et al. v. Indian Trails Public Library District (August 3, 2012).

In reviewing the applicable statutory language, the appellate court first determined that prosecution of campaign financing violations are to be brought by the states attorney or attorney general, and that the proper remedy for the improper use of public funds in an election is a fine or remedial action, not nullifcation of the election.  The appellate court further determined that the purpose of the election contest statute was to address challenges to the "conduct of the election."  The petitioners did not allege any mistakes, violations, or fraud in the conduct of the election itself, however.  Consequently, the court determined that the petitioners failed to state a claim for an election contest claim.  

The appellate court also found that the petitioners failed to state a claim for infringement of their constitutional voter rights.  In fact, the court found no case where a court set aside an election based on the unlawful advocacy of a governmental entity, and that imposing such a remedy would actually disenfrachise the voters who voted in support of the referendum. 

Post Authored by Julie Tappendorf, Ancel Glink

Tuesday, August 7, 2012

Enforcing Adjudication Orders on Local Ordinance Violations

Many communities encounter some difficulty in enforcing their ordinances through their local adjudication process.  Although municipal officials and police officers issue the citations, sometimes the offenders do not bother to show up for the local adjudication session and others refuse to obey a final order entered by the hearing officer finding the offenders guilty of the violation and assessing a fine.   Collection efforts by the municipality are rarely successful.  What can a municipality do to enforce its local adjudication order?

For a non-home rule municipality, the Illinois Municipal Code authorizes a municipality to petition the circuit court to convert an order of the local adjudication officer to a judgment of the court for ordinance violations.  65 ILCS 5/1-2.2-55.  It is a simple, statutory procedure, and a municipality can also request the court to enter an order compelling the property owner to abate the condition or repair a code violation. The municipality can then file a memorandum of judgment against the offender's property that, in most circumstances, will have to be cleared before the owner is able to sell the property.  Alternatively, the municipality could foreclose on that judgment if it is worthwhile to take that step.

A home-rule municipality is not required to apply to the court for a judgment and can simply record the hearing officer's final order from the adjudication with the county recorder.  That recorded order then becomes a judgment lien that is enforceable as is any other judicial lien against the offender's property.  65 ILCS 5-1-2.1-8.

Post Authored by Julie Tappendorf, Ancel Glink

Thursday, August 2, 2012

Ancel Glink Question of the Month - August 2012

Municipal Q&A - August 2012:

In our municipality, an ordinance passed and at that same meeting the Mayor said that he was vetoing it.  At the next meeting, he presented written reasons why he opposed the ordinance, but he did not use the word "veto" in his message.  Is his veto valid?

Answer: Although the Mayor's actions at the two meetings were a little irregular since he couldn't effectively verbally veto the ordinance, they probably constituted a valid veto.  The Mayor cannot exercise the power to veto at the same meeting the item passes. The statute says that his disapproval is to be indicated by written objections at the next regular meeting of the Board or Council occurring not less than five days after the passage of the action he wishes to veto. A court would probably find that the Mayor's initial statement that he wanted to veto the ordinance, along with his "written objections," read together, constitute a valid veto.   The Board or Council is then authorized to take action to override the Mayor's written veto "at the next regular meeting following the regular meeting at which the City Council receives the Mayor's written objection."  The vote of two-thirds of all of the Trustees or Aldermen then holding office are required to override the veto.

Wednesday, August 1, 2012

Majority of All County Board Members Required to Approve Rezoning

A developer filed an application with the county requesting a rezoning of its property.  1940 LLC v. County of McHenry.  The County ZBA recommended approval, and the County Board voted 11 to 10 in favor of the rezoning.  However, the County Board Chairman ruled that the petition failed to pass because the rezoning required a majority of the entire County Board, not just those present, to vote in favor of the rezoning.  The developer challenged that interpretation in court. 

The Counties Code provides that "map amendments may be passed at a county board meeting by a simple majority of the elected county board members..."  The developer argued that "simple majority" requires that only a majority of the board members present at a meeting must vote in favor of the rezoning.  The County argued that the addition of the word "elected" in the statute meant that a majority of all board members must vote in favor.  Both the trial court and the appellate court agreed with the County's interpretation, finding that the developer's interpretation would make the word "elected" irrelevant.  Because the County Board consists of 24 elected members, the rezoning failed because it did not get the 13 votes required for passage.

Post Authored by Julie Tappendorf, Ancel Glink