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Thursday, May 16, 2019

Reminder: Prevailing Wage Act Changes Take Effect June 1

About this time each year, Illinois public bodies begin putting together their annual prevailing wage ordinances or resolutions to present to their boards and councils for approval in June so the ordinance or resolution can be filed with the Department of Labor by the July 15th statutory deadline of the Prevailing Wage Act. Not this year, though. As we reported previously, the Illinois General Assembly enacted P.A. 100-1177 to amend the Prevailing Wage Act to eliminate the requirement that public bodies adopt an ordinance or resolution to "ascertain" prevailing wages. That new law takes effect June 1, 2019, just in time to eliminate this year's requirement of adopting an ordinance or resolution.

Moving forward, instead of every public body adopting an ordinance or resolution ascertaining prevailing wages, the Department will ascertain the prevailing wage for them. Of course, the underlying statutory requirement that public bodies pay prevailing wages for work covered by the Act still exists, but the annual obligation to adopt a prevailing wage ordinance or resolution will be eliminated on June 1st.

Tuesday, May 14, 2019

GovLove Podcast on Regulating Public Rights of Ways

Check out Ancel Glink Partner Dan Bolin's appearance on #GovLoveLegal, a GovLove podcast hosted by ELGL and recorded live at the 2019 APA National Planning Conference. A description of the podcast is below and you can listen to the podcast here.  
GovLove was recently at the National Planning Conference for a session all about right-of-way. Local governments hold the public right-of-way in trust for the benefit of the public; but rapid changes in technology, federal policy, and constitutional law are increasing demands for services and challenging local regulatory authority. Experienced local government attorneys, and industry professionals discuss best practices for right-of-way management in the face of emerging challenges. Panelists include: Alan Weinstein, Cleveland State University; Alicia Giudice, San Rafael, CA; Brandon Bordenkircher, Chaddick Institute for Metropolitan Development; Daniel J. Bolin, Ancel Glink; Gail A. Karish, Best Best & Krieger LLP; and Isidro A. Jimenez, San Francisco, CA.

Thursday, May 9, 2019

Village Did Not Breach Contract by Failing to Disclose County Permit Requirements

According to a recent Illinois case, the issuance of a building permit does not create a contract between an applicant and a municipality.  In 2008, Paul and Dana Mosier obtained a building permit from the Village of Holiday Hills to construct a garage, patio, and driveway on their property.  Five years later, the Mosiers were sued by McHenry County for constructing improvements within a regulatory flood-prone area without a County stormwater management permit.  In turn, the Mosiers sued the Village for breach of contract and violations of the Consumer Fraud and Deceptive Business Practices Act (“Consumer Fraud Act”). 

Mosiers claimed the Village’s building inspector breached an "oral contract" with them when he advised they undertake certain structural improvements, issued a building permit, but failed to notify them of the County’s permit requirements. In addition, the Mosiers claimed the building official violated the Consumer Fraud Act because he induced them to construct the improvements and knowingly made false statements.

In Mosier v. Village of Holiday Hills, the court ruled in favor of the Village on both claims.  First, it deemed a building permit more similar to a license than a contract because, similar to a license, a municipality has the power to impose restrictions and revoke building permits pursuant to its police powers. Second, when an applicant qualifies for a building permit, a municipality is required to issue it without receiving any “consideration” in return (other than the permit fee which pays for its costs).

The court also found the Consumer Fraud Act inapplicable. The Act is intended to prevent deceptive behavior during a transaction “involving trade or commerce” involving such things as advertising, offers for sale, or distribution of services or property. According to the court, instead of being a private commercial activity, the issuance of a building permit is a municipality’s fulfillment of its regulatory and statutory functions in accordance with state law and local ordinance.

Post Authored by David Warner, Ancel Glink

Wednesday, May 8, 2019

How Will Recreational Marijuana Affect Illinois Local Governments?

On May 4, 2019, Governor Pritzker and key legislators unveiled a long-anticipated proposal to legalize the use of cannabis for adults over the age of 21 under Illinois law (Amendment No. 1 to SB 7). The proposed law would allow residents over the age of 21 to possess up to 30 grams of cannabis and grow up to five plants per household. The Act prohibits the use of cannabis in public places including government buildings. 

While the draft legislation might be amended and still has to be approved by the General Assembly, it is not too early for local governments to prepare for the proposed law's sweeping changes affecting cannabis business establishments, including land use/zoning, tax revenues, employee policies, expungement obligations, among others. We can't possibly go into everything that is in the 533 page bill, but we have provided a brief summary of some of the provisions that affect units of local government below.

One Year to Prohibit Cannabis Business Establishments
The draft legislation contains a provision that will allow local governments to "opt-out" or entirely prohibit cannabis business establishments in their jurisdiction, including dispensaries, cultivation centers, craft growers, processing organizations, and transportation organizations. However, any "measure prohibiting or significantly limiting" the location of cannabis businesses has to be adopted within one year of the effective date of the Act. After this one-year period has expired, local governments will have to seek approval by referendum to adopt any prohibition or significant limitation on cannabis businesses.

Regulate Cannabis Businesses
The current bill allows local governments to regulate cannabis businesses but only to a certain extent. The bill allows local governments to adopt (1) reasonable zoning ordinances that do not conflict with the Act or unreasonably prohibit home cultivation and use of cannabis; (2) ordinances and rules governing the time, place, manner, and number of cannabis businesses; and (3) regulations on the consumption of cannabis in a manner consistent with the Act.

This language would permit local governments to impose distance restrictions between cannabis businesses and other sensitive uses and locations, limit the hours of operation of cannabis businesses, or set a cap on the number of cannabis businesses allowed within the jurisdiction. The current bill also expressly allows local governments to regulate cannabis businesses through the use of conditional (special) use permits. While the bill allows local governments some regulatory authority, the bill prohibits local governments from regulating cannabis businesses in a more restrictive manner than allowed under the Act. Importantly, this prohibition includes an express home rule preemption. 

Employment Policies and Workplace Drug Policies
Under the current bill, employers will have the authority to adopt reasonable and nondiscriminatory employment policies concerning drug testing, smoking, consumption, storage or use of cannabis in the workplace. In addition, employers will have the power to discipline or terminate employment of an employee for violating an employer's employment policies or workplace drug policy. The Act also establishes when an employer may consider an employee to be under the influence of cannabis. 

Municipal Cannabis Sales Tax
Under the current bill, both home rule and non-home rule municipalities can adopt ordinances to impose a local tax on the operation of a cannabis dispensary. The rate of tax cannot exceed 3% of the dispensary's gross receipts from the sale of non-medical cannabis. If imposed, the tax may only be imposed in 0.25% increments.

Expungement of Local Records and Offenses
The initial procedure for expunging criminal records will be handled by the Illinois State Police (ISP) as well as the State's Attorneys Office. However, local law enforcement will have to automatically expunge records pertaining to arrests for minor violations identified by the Department of State Police within 60 days of notice from ISP. 

SB 7 is only a proposal at this time and still needs to pass both the Illinois House and Senate and be signed by the Governor before it becomes law. However, it is important to note that the current draft state budget includes cannabis revenue, so, it is expected that the General Assembly will move fairly quickly to consider passing legislation. 

Monday, May 6, 2019

PAC Releases Annual OMA/FOIA Report of 2018 Activities

"Sunshine Week" came and went this year without any fanfare from the Illinois Attorney General's office. Typically, that is when the Public Access Counselor (PAC) publishes its annual report on OMA and FOIA complaints and training sessions. Although I didn't see any press about the release of the 2018 annual report, it was issued and you can find a copy of the report on the AG's website here.  

As we have in the past, we've highlighted some of the findings and summaries here in case you don't want to read through 39 pages of the full report.

Complaints filed in 2018

  • In 2018, the PAC received 3,748 "requests for review" of OMA and FOIA matters.  
  • 3,372 of these were related to FOIA
  • 376 relating to the Open Meetings Act

Training sessions conducted in 2018

The PAC conducted 32 training sessions on OMA/FOIA

Binding opinions issued in 2018

The PAC issued 18 binding opinions in 2018.  Regular readers know that we summarize the binding opinions on Municipal Minute. You can find summaries of the first 16 binding opinions issued in 2018 here and the last 2 binding opinions for 2018 here. They are also posted on the AG's website here.

Non-binding opinions issued in 2018

Interestingly, this year's annual report does not identity how many advisory opinions were issued in 2018.  Given that there over 3700 complaints filed in 2018, and only 18 binding opinions issued in 2018, one can guess that there were hundreds, if not thousands, of advisory opinions issued - either that, or a significant number of these complaints remain unresolved. 

So, where can one find all of these advisory opinions?

Well, as regular readers know, the PAC does not post the non-binding or advisory opinions on the AG's website. The only way to get access to these opinions is to file a FOIA request with the PAC or AG. The problem, of course, is that there are just so many advisory opinions. How does a requester narrow the request sufficiently to avoid an "unduly burdensome" claim by the PAC, a task that can prove very difficult if a requester doesn't have an idea of the topics addressed in these opinions since the PAC hasn't posted an index of these opinions. 

A handful of these advisory opinions are summarized in the annual report, so that is a helpful resource. But, I still remain hopeful that at the very least, the PAC will put together and post on its website an index of these advisory opinions to make it easier for the public and public bodies to request copies of opinions of interest. It would be a step in the right direction by the office tasked with ensuring government operates transparently.  And, it would offer a lot in the way of helpful guidance to public bodies in ensuring compliance with FOIA and OMA, particularly because there are so very few binding opinions issued each year (only 3 so far in 2019).

Thursday, May 2, 2019

Happy Birthday Quorum Forum! Podcast Episode 24 - Local Government Procurement

It’s Quorum Forum podcast’s first birthday party! We’re celebrating with the release of a new episode Episode 24: Local Government Procurement.

In this episode, Ancel Glink attorney David Warner will summarize recent annexation cases from Municipal Minute. Then, Ancel Glink attorney Derke Price reviews what newly (and not-so-newly) elected officials need to know about local government procurement. 

Questions about purchasing goods and services? Happy birthday wishes? Email us at podcast@ancelglink.com!

Tuesday, April 30, 2019

Follow Up on New Human Trafficking Notice Law

As we recently reported, amendments to the Human Trafficking Resource Notice Act require organizers of a public gatherings or special events on property open to the public that require the “issuance of a permit” from a unit of local government to post required notices to assist victims of human trafficking.

It's important to note that this new law also comes with new enforcement powers for local governments. While the Department of Labor was previously responsible for enforcement of the Act, now enforcement is up to the “governmental entity regulating a business or establishment and local law enforcement agency having jurisdiction...” In most cases, the enforcing authority will be a municipality or other unit of local government.

These new enforcement powers come with some practical problems. 

First, the phrase “public gathering or special event that is conducted on property open to the public and requires the issuance of a permit” is somewhat ambiguous. Based on the Act's emphasis on “public gathering” and “open to the public,” it seems that the law would only apply to events open to the general public, and not to private events such as a family celebration in a park district pavilion.

Second, although the Act specifically refers to events that require a "permit," it isn't clear whether that also extends to events that simply require local government approval or permission without the formality of a permit process.

Finally, the law requires local governments to give reasonable notice of a violation and a 30-day cure period before the Attorney General or State’s Attorney can prosecute violations and seek fines under the Act. But, it's likely the event will be over long before the 30-day cure period expires.

As a result, local governments interested in enforcing the notice requirement may wish to address these practical issues by ensuring that organizers of these events are on notice of the new requirements. That might include incorporating language into permit applications about the new notice requirements, and even requiring applicants to acknowledge when the Act applies to their events and that failure to post required notices will be subject to enforcement.

Post Authored by John Reding & Julie Tappendorf, Ancel Glink

Monday, April 29, 2019

6th Circuit Amends Opinion in "Chalking" Case

Last week we reported on a 6th Circuit Court of Appeals opinion finding a city's practice of chalking vehicles for parking enforcement to be an unconstitutional search under the Fourth Amendment. Just two days after the decision was issued, the 6th Circuit published an amended opinion, which you can read in its entirety at Taylor v. Saginaw.  

Unfortunately, the amended opinion did not change the Court's ruling that the city's chalking practice was unconstitutional.  It does, however, add the following new paragraph to the opinion's conclusion:

Taking the allegations in Taylor’s complaint as true, we hold that chalking is a search under the Fourth Amendment, specifically under the Supreme Court’s decision in Jones. This does not mean, however, that chalking violates the Fourth Amendment. Rather, we hold, based on the pleading stage of this litigation, that two exceptions to the warrant requirement—the “community caretaking” exception and the motor-vehicle exception—do not apply here. Our holding extends no further than this. When the record in this case moves beyond the pleadings stage, the City is, of course, free to argue anew that one or both of those exceptions do apply, or that some other exception to the warrant requirement might apply.
It is quite unusual for a court to amend its opinion after it has been released except to correct typographical errors so this is significant. Given the widespread concern raised across the country about this ruling, the Court may have felt it was necessary to clarify that its ruling is limited to the facts presented in this case, and that the city could still make other arguments to justify its chalking practice on remand.

Thanks to a reader for reaching out about this amended opinion.

Friday, April 26, 2019

City Not Liable For Pothole Injury to Driver Who Was Illegally Parked

An Illinois appellate court ruled in favor of a municipality in a case involving an individual who was allegedly injured when she stepped into a pothole in the street while returning to her parked car. The City had argued that the individual was not an "intended and permitted" user of the street because she had parked her car 5 feet into a marked no-parking zone within 15 feet of a hydrant. She argued that most of her car was legally parked, and that the pothole was outside of the no-parking zone. The court agreed with the City, finding that because she was illegally parked in violation of a City ordinance, she was not an "intended and permitted user." As a result, the City did not owe a duty to her under the Tort Immunity Act. Ramirez v. City of Chicago.

Wednesday, April 24, 2019

"Chalking" Practice in Parking Enforcement Found Unconstitutional by Sixth Circuit

In a surprising decision out of the 6th Circuit Court of Appeals, the court struck down a City's practice of "chalking" the tires of parked cars to track how long they have been parked as part of the City's parking enforcement program. Taylor v. City of Saginaw.

Like many other municipalities across the country, the City of Saginaw, Michigan's parking enforcement officers place chalk marks on the tires of parked cars, then return to the car after the posted time for parking has passed to see if the chalk marks are still there - a sign that the vehicle has not moved. If they remain, the officer issues a citation. Taylor, a frequent recipient of parking tickets, sued the City and one of its parking enforcement officers claiming that the chalking practice violated her Fourth Amendment right to be free from unreasonable search. The district court did find that the City's practice of "chalking" was a search under the Fourth Amendment, but found that the search was reasonable and dismissed the case.

Is chalking a search?

On appeal, the 6th Circuit Court of Appeals also held that the practice of "chalking" was a "search" under the Fourth Amendment. The court compared chalking a tire to the placement of a GPS device on a car, which the Supreme Court has held was a government trespass on the vehicle and a search. Similarly, the court said that that the City's placement of chalking on a vehicle's tire was a government trespass for the purpose of obtaining information. And, like the placement of a GPS device, the placement of chalk constitutes a search under the Fourth Amendment.

Was the "search" reasonable?

The 6th Circuit Court of Appeals then addressed the issue of whether the search was reasonable, acknowledging that not all government searches are unconstitutional. The district court had found the chalking practice reasonable because there is a lesser expectation of privacy in automobiles and it fell within the "caretaker" exception to the warrant requirement. The Court of Appeals disagreed with both reasons, however. First, the Court of Appeals found that the City needs probable cause to search a vehicle without a warrant, and no probable cause existed in this circumstance. Second, the City failed to show how the search related to the protection of public safety, where the parked car did not create any hazard. Instead, the purpose of chalking is to raise revenues, and not in furtherance of  public safety concerns. 

In sum, the Court of Appeals held that the City did not demonstrated that the need to deter drivers from exceeding the time permitted for parking was sufficient to justify a warrantless search. 

It's important to note that this decision is in the 6th Circuit Court of Appeals, so it does not cover Illinois. However, if a similar challenge was made in the 7th Circuit (which covers Illinois), it might provide some guidance to that Court of Appeals.

Following the release of this decision, some commentators have suggested that municipalities might avoid a similar challenge by changing to the use of photographs or chalking the street rather than the tires to document parking times. Those particular practices were not discussed or addressed in this case, but might avoid the "trespass" issue that was crucial to the Court of Appeals decision since "trespass" was defined by the Court as "physical contact" or a "physical intrusion" to the private property of another. A focus on the safety reasons for any traffic enforcement practice is also important.

Tuesday, April 23, 2019

Quorum Forum Podcast Episode 23: Arbor Day Special!

Just in time for this Friday's Arbor Day celebration, Ancel Glink has released Episode 23 of its Quorum Forum Podcast: Arbor Day Special!  A summary of this episode is below:

Make like a tree and leaf your headphones on for our Quorum Forum Arbor Day Special! Brandon Naser and Joe Hansen of Park Ridge's Forestry Division discuss Arbor Day in the City, and the important benefits trees provide the community. They also share important tree-sources from the Chicago Region Trees initiative, including a their recent 2050 Master Plan and a video encouraging tree investment

How does your community celebrate Arbor Day? Tree-mail us at podcast@ancelglink.com

Post Authored by Dan Bolin, Ancel Glink

Monday, April 22, 2019

New Law Expands County Authority Over Wind Facilities

Last week, the Governor signed P.A. 101-004 amending the Counties Code regarding county regulation of wind farms and and other wind energy facilities. The new law expressly authorizes counties to establish standards for wind farms, wind devices, and wind energy facilities in unincorporated areas even if the county has not adopted a zoning ordinance. The law also provides that only counties are authorized to regulate wind farms, devices, and facilities in unincorporated areas and outside of the 1.5 mile radius surrounding a municipality.

The bill was introduced to address a situation in Douglas County, where a Texas company planned to build a wind farm. Douglas County had not enacted a zoning ordinance although it did regulate wind farms. Two townships in the County that were opposed to the wind farm development enacted stricter zoning regulations that would have precluded the wind farm development. Under this new law, a county's wind farm regulations would control over any township restrictions.

Thursday, April 18, 2019

Circuit Court Upholds Village's Billboard Regulations

The ability of Illinois municipalities to regulate billboards along interstate highways has been the subject of much litigation over the past few decades. These disputes usually center around the sometimes-conflicting provisions of the Highway Advertising Control Act of 1971 (“Highway Act”). 

The Highway Act provides maximum size, spacing, and lighting restrictions for interstate highway billboards that are permitted by IDOT. However, the Highway Act also expressly authorizes municipalities to adopt more restrictive regulations for interstate highway billboards than those imposed by the Highway so long as the municipal regulations are consistent with “customary use.” Many advertisers have challenged municipal billboard regulations on the grounds that they exceeded the authority provided under the Highway Act or were inconsistent with the “customary use” of billboards. A number of Illinois courts have upheld home rule municipal bans on billboards, and  both home rule and non-home rule municipal restrictions on the size and location of billboards. 

A recent decision by an Illinois circuit upholding the billboard regulations of a non-home rule municipality may provide more clarity to the issue. In WC Media v. Village of Gilberts, an advertiser challenged the Village’s size, spacing, and lighting regulations for interstate billboards. The Village had adopted billboard size restrictions that mirrored the restrictions that apply to all signs in the Village’s commercial and industrial districts. 

An advertiser filed a lawsuit against the Village alleging that the Village’s billboard regulations violated the Highway Act because (1) the size limitations were so strict that they eliminated a billboard’s commercial value, which acted as an effective prohibition on billboards; and (2) the Village’s billboard regulations were inconsistent with the customary use of billboards preferred by advertisers. The lawsuit claimed that the Village's ordinance was "facially" unconstitutional. The Village filed a motion to dismiss the advertiser’s complaint based on the various Illinois cases upholding a municipality's authority to restrict billboards, among other defenses.

The court sided with the Village and dismissed the advertiser’s complaint with prejudice. In addition to finding that the advertiser did not meet its burden to challenge the ordinance on "facial" grounds, the court also found that the size and spacing restrictions imposed by the Village did not violate the Highway Act or the “customary use” of billboards. While not directly deciding the question, the ruling also seemed to imply that non-home rule municipalities could completely prohibit billboards, stating that “if a total ban on highway billboards does not run afoul of the act, it follows that Defendant’s ordinance must be valid.”  

The advertiser has filed an appeal of the decision, and we will keep you updated when a final ruling is issued.  However, if upheld, this ruling will confirm the authority of non-home rule municipalities to tailor their billboard regulations to local circumstances without violating the Highway Act.

Post Authored by Kurt Asprooth & Julie Tappendorf, Ancel Glink

Disclaimer: Ancel Glink represented the Village in this case.

Wednesday, April 17, 2019

Illinois Governor Signs Bill Barring Local Governments from Establishing “Right to Work” Zones

Last Friday, Governor J.B. Pritzker signed the Collective Bargaining Freedom Act (P.A. 101-003) barring local governments from establishing “right-to-work zones.” The new law takes effect immediately (April 12, 2019). 

The Act provides that the state has exclusive authority to enact laws governing agreements between employers and unions that (i) spell out the extent to which workers can be compelled to belong to a union or and (ii) whether the employer will collect dues and fees on behalf of the union. The Act expressly prohibits any local government from enacting or enforcing any local law, ordinance, rule, or regulation that "prohibits, restricts, tends to restrict, or regulates the use of union security agreements between an employer and labor union. The Act declares any ordinance inconsistent with the Act to be void. Finally, the Act preempts home rule authority.

A prior version of the Act was introduced in 2015 after an Illinois municipality passed an ordinance allowing employees to work for a company in union-protected positions without having to join the union or pay the full share of union dues. That ordinance was struck down by a federal court of appeals court last year, and the previous bill was vetoed by former Governor Bruce Rauner in 2017. The legislation was reintroduced during the current session and passed in the House with a vote of 101-8 and the Senate 51-0 before being signed by the Governor.

Post Authored by David Warner, Ancel Glink

Monday, April 15, 2019

Changes to Human Trafficking Law Affect Public Events

Organizers of public gatherings on property open to the public have new responsibilities when it comes to posting notices under the Human Trafficking Resource Center Notice Act.

Effective January 1, 2019, P.A. 100-0671 amended several sections of the Human Trafficking Resource Center Notice Act which adds to the list of entities that are required to post the notice under the Act. Specifically, the new law now requires the organizer of a public gathering conducted on property open to the public that requires a permit from a unit of local government to post a notice that complies with the requirements of the Act in a conspicuous and accessible place on the premises in clear view of the public where similar notices are customarily posted. 775 ILCS 50/5(d).

The notice is intended to inform the public and victims of human trafficking of telephone hotline numbers to seek help or report unlawful activity. The Act requires specific posting mandates, language requirements, and penalties of up to $500 per violation for failure to post. In addition, each mandated business is required to post the notice in English and Spanish. For helpful model notices, you can find State of Illinois resources HERE.

Post Authored by Dan Bolin and John Reding, Ancel Glink

Friday, April 12, 2019

Court Says Electoral Board in Best Position to Assess Weight of Evidence

A candidate for trustee in the Village of Burnham filed 16 pages of nominating papers with 182 signatures.  34 signatures were required to qualify for the ballot.  An objector challenged the validity of the signatures and, after a hearing, the Village’s electoral board declared the papers invalid and struck the candidate’s name from the ballot.  The board found an “unmistakable pattern of fraud, false swearing, and disregard for the mandatory requirements of the Election Code.” 

The board’s decision was based on finding that 105 of the 182 signatures were invalid because the signer was either not the proper person, not a registered voter in the Village, or not located there.  In addition, the board discovered that 60 of the 105 invalid signatures were contained within 5 consecutive pages of the signature sheets.  At the hearing, the candidate testified that he personally obtained and witnessed every signature in his nomination papers by going door to door.  The board found his testimony to be untruthful because the 5 consecutive pages came from multiple streets and did not include “a single consecutively listed address on the same street.” Furthermore, the signatures on those pages appeared to be written in the hand of just a few people. 

The candidate appealed, and the court in Hodges v. Municipal Officers Electoral Board of the Village of Burnham, agreed with the board. According to the court, a board is in the best position to assess the candidate’s credibility and determine the weight to be given to his testimony.  As such, a court will not substitute its judgment for that of the board absent a finding that the board’s decision was clearly erroneous.

Post Authored by David Warner, Ancel Glink

Thursday, April 11, 2019

Tobacco 21 Law Signed By Illinois Governor This Week

On April 7, 2019, Governor Pritzker signed P.A. 101-002 into law. This landmark legislation makes Illinois the 11th state to enact what has become known as “Tobacco 21 law.” The law takes effect on July 1, 2019. This legislation is not a novel concept to Illinois municipalities. Before its enactment, more than 30 Illinois municipalities had adopted ordinances to raise the local minimum legal sales age to 21. 

The bill amends various state statutes regarding tobacco to raise the legal age to 21 for the purchase or sale of tobacco products, electronic cigarettes, and alternative nicotine products. The law also provides a formal definition for electronic cigarettes to include electronic nicotine delivery systems, whether or not the solution contains nicotine.

For those who may have been following the legislation from its introduction, the law remains substantively similar, but the few changes it imposes have come with sharp criticism. One criticism is that the law focuses on the sale or purchase of tobacco or alternative products by persons under 21 but not the possession of those products. That means that municipal ordinances could regulate different conduct (i.e., possession by underage persons in addition to sale and purchase) than the state law will regulate once the law becomes effective. 

Because municipal ordinances may currently regulate conduct based on the previous age minimum of 18, municipalities might consider updating their ordinances to be consistent with state law.

Post Authored by Dan Bolin & Julie Tappendorf

Wednesday, April 10, 2019

Subsequent Lot Owners Responsible for Public Improvements in Annexation Agreement

Land use litigation arising out of the 2008 economic downturn continues to percolate through the courts as municipalities seek to complete long-delayed public improvements contracted for in annexation agreements. A recent court decision may help local governments looking to hold subsequent purchasers accountable for obligations entered into by bankrupt developers.

In City of Yorkville v. Fidelity et al., an Illinois appellate court found two homebuilders liable for building public improvements a bankrupt developer had agreed to provide the City in a 2003 annexation agreement. Through various transactions, the Richardson Group (TRG) and William Ryan Homes (WRH) purchased lots subject to the annexation agreement from bankrupt homebuilder Kimball Hill Homes. The annexation agreement included the following provision:

“This Agreement shall inure to the benefit of and be binding upon the OWNERS, DEVELOPER and their successors in title and interest, and upon the CITY, and any successor municipalities of the CITY. It is understood and agreed that this Agreement shall run with the land and as such, shall be assignable to and binding upon each and every subsequent grantee and successor in interest of the OWNERS and DEVELOPER, and the CITY.  The foregoing to the contrary notwithstanding, the obligations and duties of OWNERS and DEVELOPER hereunder shall not be deemed transferred to or assumed by any purchaser of a [sic] empty lot or a lot improved with a dwelling unit who acquires the same for residential occupation, unless otherwise expressly agreed in writing by such purchaser.”  

TRG and WRH both claimed the provision absolved them of responsibility for completing the public improvements agreed to by KH (the DEVELOPER) in the annexation agreement because they merely purchased “empty” lots. The court disagreed, finding such a reading would result in a windfall for subsequent purchasers which would clearly not be what the parties intended. Instead, the court said any subsequent purchaser of an empty lot will be proportionally liable for completing the obligations in the annexation agreement even if it is the purchaser of a single lot.

The court distinguished its decision from a case we reported on in October last year, Doyle v. Village of Tinley Park, that found the purchaser of a lot in a subdivision had no authority to bring a cause of action against a developer for failing to complete public improvements under an annexation agreement. According to the court in Yorkville, the annexation agreement covered the “Subject Property or any parcel or phrase thereof” while the agreement in Doyle presumably only covered the subject property as a whole.

The court’s decision appears to rely heavily on the public policy favoring the fulfillment of annexation agreements and the particular status of the subsequent purchasers.  As large homebuilders, the court implies that common sense suggests both TRG and WRH should have expected to have some responsibility for the public improvements necessary to enable them to build homes. On the other hand, litigation may have been avoided if the annexation agreement had more clearly outlined the specific rights and obligations of subsequent owners.

Post Authored by David Warner, Ancel Glink

Tuesday, April 9, 2019

Quorum Forum Podcast Episode 22 - Defending Malicious Prosecution Claims

Ancel Glink's Quorum Forum podcast is back with a new episode: Episode 22: Defending Malicious Prosecution Claims

Prosecutions are on the agenda, as Aaron Bitterman joins us from Ancel Glink Defense E-News (emus?) with new and proposed rules affecting ordinance enforcement for local governments. Then, experienced litigator and former prosecutor Kathy Kunkle discusses ways local governments can avoid malicious prosecution claims. 

You can access this episode here.

This podcast is provided as a service to our public and private sector clients and friends. It is intended to provide timely general information of interest, but should not be considered a substitute for legal advice. Read our full disclaimer: ancelglink.com/disclaimers

Monday, April 8, 2019

City Failed to Give Proper Notice of Impending Street Cleaning

The concept of “notice” and how it complies with an individual’s constitutional due process rights is something local governments regularly encounter in their day to day work. Whether it involves a code violation, utility shut-offs, or a zoning hearing, proper timing and form of notice is essential and the failure to comply can result in the government being unable to enforce its ordinances. This issue arose recently in the City of Chicago with respect to its street cleaning ordinance resulting in a successful challenge to the imposition of a ticket and fine.

On July 25, 2016, Todd Kooperman parked his car on a Chicago street.  There was no signage indicating this was in violation of any ordinance. He checked the street for parking restrictions again around 6 p.m., and saw no signs, but at 10 a.m. the following morning a police officer had issued him a ticket for violating the City’s street cleaning ordinance. At some point after midnight the City had posted street cleaning signs on the block. Kooperman paid the fine under protest and contested the ticket.  Both the City’s administrative hearing officer and the circuit court, however, found no requirement in the law that notice be provided a certain amount of time in advance of issuing the ticket.

On appeal, the court in Kooperman v. City of Chicago disagreed, finding the City’s practice unconstitutional. It held that such practice effectively gave the City the right to post a notice and ten minutes later issue a ticket.  Although the ordinance did not provide a time period for providing notice, the court found that in order to comply with an individual’s due process rights, the City must provide at least 24 hours advance notice before citing someone for violating its street cleaning ordinance.

The proper form, content, timing and recipient of notice is often provided by statutory or case law. However, where local government’s are given discretion to establish the type of notice, it is important that they keep in mind the United States Supreme Court’s admonition “that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning.” Grayned v. City of Rockford, 408 U.S. 104, 108 (1972).

Post Authored by David Warner, Ancel Glink

Friday, April 5, 2019

Income Tax Exemption for Housing Subsidies to Ministers Does Not Violate Constitution

Under the Establishment Clause of the First Amendment, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..”  A nonprofit organization brought suit against the United States Treasury claiming a longstanding tax code exemption for religious housing violated the Establishment Clause because it did not have a secular purpose and instead provided aid to a group of religious persons. Recently, a federal court rejected the nonprofit’s claim because the law applied equally to nonsecular institutions, did not involve a subsidy, required a level of fact-finding that did not excessively entangle the government in religion, and was a historic practice. Gaylor v. Mnuchin

The U.S. Court incorporates a number of tests when evaluating the constitutionality of Establishment Clause cases. One is known as the “Lemon Test,” which provides that a law violates the Clause unless it has a secular legislative purpose, its principal or primary effect neither advances nor inhibits religion, and it does not foster an excessive government entanglement with religion. More recently, the Court has also applied a “historical significance” test to uphold laws advancing a particular religious belief if there are a sufficient number of historical examples of the law being applied without issue.

Under both tests, the Gaylor court found the income tax exemption permissible. The court noted the exemption also applied to any housing subsidy provided as a convenience to the employer not just ministers. In addition, the court cited previous judicial decisions finding tax exemptions are not the same as subsidies and therefore do not constitute an attempt to advance religion. Also, the fact-finding required to determine if a minister satisfies the exemption is no greater level of entanglement than what is necessary to implement the law. Lastly, the court noted exemptions for religious purposes have been provided by the federal government since 1802 and no previous interpretation of the exemption suggested it was imposed for a religious purpose. 

Post Authored by David Warner, Ancel Glink     

Thursday, April 4, 2019

Wednesday, April 3, 2019

Building Inspection Bill Would Restrict Municipal Authority

Illinois House Bill 2206 is yet another bill introduced in the Illinois General Assembly that would take away important municipal powers. If passed, HB 2206 would only allow home inspections by a unit of local government under the following circumstances:
  • A fire, medical, or police emergency;
  • As otherwise permitted by Section 9 of the Fire Investigation Act;
  • Voluntary consent of the owner or occupant of the property;
  • A lawful warrant; or
  • A court order.
The bill would preempt home rule authority, and if passed, would restrict municipalities from enforcing ordinances that require rental inspections or inspections for transfer stamps and similar regulations. Municipalities are most concerned about the restrictions on their authority to address unsafe or dangerous structures where time may be of the essence but the circumstances may not fall under any of the listed statutory situations. 

The Illinois chapter of the APA has sent out a notice about this bill and is asking communities to oppose the legislation. Timing could be critical because the legislation has passed out of committee and is moving forward in the Illinois House.

Here's the text of the bill:
Section 1. Short title. This Act may be cited as the Local Government Residential Inspection Limitation Act.
Section 5. Physical inspection of residential property. Except for a fire, medical, or police emergency or as otherwise permitted by Section 9 of the Fire Investigation Act, a unit of local government may not conduct a physical inspection of residential property without the voluntary consent of the owner or occupant of the property, a lawful warrant, or court order. This Section is a denial and limitation of home rule powers and functions under subsection (g) of Section 6 of Article VII of the Illinois Constitution.

Tuesday, April 2, 2019

Bill Proposes Statutory "Vested Rights" to Restrict Municipal Zoning Authority

Another bill has been introduced in the Illinois General Assembly that would restrict municipal zoning authority in Illinois.  House Bill 3185 would amend the Illinois Zoning Enabling Act to prohibit municipalities (including home rule units) from enforcing any building or zoning ordinance against a development after a developer has taken any one of the following 5 "qualifying" steps to move the project forward with the municipality:

1.  Had a preliminary meeting with  municipal staff
2.  Applied for a building permit with the municipality
3.  Presented a development plan to the city council/village board
4.  Substantially invested resources into planning the project
5.  Given notice to the municipality of its intent to develop the property

The bill, if passed, would allow a developer to sue the municipality to order the issuance of permits and approvals and the imposition of fines if the municipality tries to enforce an ordinance in violation of this law.

Clearly, this would be a significant and substantial change in zoning law in Illinois if it is enacted. In essence, it legislates a "vested right" of a developer to proceed with a development irrespective of any zoning or building code changes apparently for an unlimited period of time and based on very little action by the developer to "vest" its rights. For example, it seems that a developer could do as little as simply appear at a meeting of the city council to  show a concept plan during public comment or send a letter to the municipality that it wants to develop a parcel to be able to argue that its rights are vested and they are forever free from any future building or zoning changes. That is a significant departure from the existing vested rights doctrine that has been established through court decisions over time and that already protects developers from municipal changes upon demonstration of certain definitive factors as set out in those cases.

The Illinois chapter of the American Planning Association has sent out information about this bill, asking members to oppose this significant restriction on municipal zoning authority. 

Post Authored by Julie Tappendorf

Monday, April 1, 2019

Court of Appeals Hears Argument on Trump's Twitter Appeal

As we have reported previously on Municipal Minute, President Trump was sued for blocking individuals from his @realDonaldTrump Twitter account. The district court ruled that the President's actions in blocking individuals from his Twitter account violated their First Amendment rights because (1) the President's Twitter account was a "public forum" subject to the First Amendment and (2) the President's blocking of these individuals was unlawful "viewpoint discrimination." 

The President appealed to the U.S. Court of Appeals for the Second Circuit, which heard oral argument from both sides of the lawsuit last week.  You can listen to the oral argument on the Court of Appeals website here - the case is referenced as Case No. 18-1691.

President Trump was represented by the Department of Justice, which argued that the district court erred in ruling against the President. First, the DOJ argued that the President's "blocking" of persons from his Twitter account was not "state action" because that action is personal and not governmental because he had the right to block people from this account prior to becoming President and will have that right after he is no longer President. The DOJ also argued that the @realDonaldTrump Twitter account is not a public forum, so the First Amendment does not apply to his activities related to that account.

The 3 Judge panel spent a lot of time questioning the DOJ on these two issues. They asked how this could be a purely personal activity of a private individual if the DOJ was representing him in the lawsuit. They also questioned how the Twitter account was not a public forum where the President's activities on this account are "regularly and persistently" related to the government and the President's duties and responsibilities. The Judges also asked about the rationale for the blocking, specifically questioning whether the people were blocked from the Twitter account because of the content of their speech (i.e., "viewpoint discrimination") that would violate the First Amendment.

The Knight First Amendment Institute was asked whether all government official's social media activities are subject to the First Amendment, and responded that it did not believe that every personal social media account of a government official is a "public forum." Instead, the Institute's counsel acknowledged that there must be some ties between the government official's activities and the government, which might include whether government staff has access to the account, the content of the official's posts on the account, and similar activities. In this particular case, the Institute argued that the @realDonaldTrump Twitter account was clearly used for government purposes, and that the President had blocked the individuals from the account because they criticized the President in violation of their First Amendment rights.

This case is interesting for many reasons, but particularly because the Court of Appeals ruling may provide additional guidance to municipal and other government officials on how they should conduct their own social media activities, even on what they might have assumed are their personal pages or accounts. You may recall that the Court of Appeals for the Fourth Circuit considered a similar challenge to a Loudoun County Commissioner's blocking of individuals from her personal Facebook page and found that activity to violate the First Amendment because her Facebook page was used for governmental purposes. We wrote about that case earlier this year here.

We will keep you posted on this case and summarize the decision once it has been issued.

Wednesday, March 27, 2019

HB 2040 Will Restrict Local Zoning and Contracting Authority

Dwight, a village of 4,200 residents in Livingston County, recently approved an annexation agreement to allow for a 1,200-bed $20 million dollar federal immigration detention center to be built on 88 acres west of Interstate 55. If approved by the federal government, it would be built by Immigration Centers for America and become Illinois’ first privately operated detention center.

The approval process was contentious as the activist group No ICE Dwight lobbied against approval of the agreement. Over 100 members of the public from 10 cities attended the council meeting and spoke against the proposed annexation agreement. 

After approval of the agreement by Dwight, the Illinois House Labor and Commerce Committee passed HB 2040 out of committee. The bill now awaits a vote by the full House. Representative Kelly Cassidy said her bill is in response to a resurgence of municipalities attempting to approve new for-profit and privately-operated detention facilities.

As passed out of committee, HB 2040 will prevent local municipalities from contracting or entering into agreements “of any kind” related to a detention facility owned or operated by a private entity.  The bill prohibits any “subsidy” in the development or construction of a privately-operated facility.  The bill also prohibits any financial incentive or “benefit” to a privately-operated facility. For instance, municipal assistance in the extension of municipal water and sewer mains to a site may be considered a financial incentive or benefit prohibited by the bill. Rezoning property for use as a facility may be considered an illegal “benefit” under the bill. 

Standard and routine annexation agreements without any subsidies or incentives may be considered “an agreement of any kind” prohibited by the bill. 

This is just one of a number of bills introduced this session that restrict municipal zoning authority. 

Post Authored by Steve Mahrt, Ancel Glink

Tuesday, March 26, 2019

Illinois Law Banning Stun Guns and Tasers In Public Found Unconstitutional

The Illinois Supreme Court issued an opinion last week finding an Illinois statute that prohibits people from carrying stun guns or tasers in public or in a vehicle unconstitutional. People v. Webb.

Two individuals were arrested in DuPage County for carrying a stun gun. One had a stun gun in his jacket while in his vehicle and the other had a stun gun in his backpack in a forest preserve. They were both charged with unlawful use of a weapon in violation of an Illinois law. The case went to court, and the DuPage County circuit court struck down the statute, finding that a complete ban on carrying a stun gun or taser in public is unconstitutional under the Second Amendment.

The case made its way to the Illinois Supreme Court which also found the law unconstitutional. The Illinois Supreme Court noted that the U.S. Supreme Court had previously held that the Second Amendment applies to all bearable arms, not just those in existence at the time of the Second Amendment. The Court rejected the state's argument that the law was not a complete ban since a person could carry a stun gun or taser if he or she had a valid concealed carry license, ruling that the Concealed Carry Act expressly excludes stun guns and tasers from the definition of "firearm." 

Monday, March 25, 2019

Court Rules Village Assault Weapon Ordinance is Unenforceable

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

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

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

Wednesday, March 20, 2019

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

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

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

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

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

Tuesday, March 19, 2019

Written Orders Required by Supreme Court Rule 557

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

Post Authored by Megan Mack, Ancel Glink

Monday, March 18, 2019

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

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

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

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

Post Authored by Megan Mack & Julie Tappendorf, Ancel Glink

Thursday, March 14, 2019

Short Term Rental Bill Introduced Again This Session

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

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

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