Municipal Minute

Fire Protection District Can Require Direct Connection for Alarm Monitoring

2012-03-01T08:00:00.000-06:00

This week, the Seventh Circuit Court of Appeals issued an opinion in a case involving a lawsuit brought by private alarm companies challenging a fire protection district’s “direct connection” requirement. ADT Security Services, Inc. v. Lisle-Woodridge Fire Protection District. In 2009, the district had enacted an ordinance requiring all commercial and multiple family residential buildings to have fire alarms connected to the district’s central monitoring board through wireless technology. The ordinance also provided that the district would only contract with one alarm company to provide and service signaling equipment.

The private alarm companies sued the district, claiming that the ordinance would displace private alarm companies and invalidate existing contracts with customers. The district court previously held that the district had engaged in illegal conduct by invalidating contracts between private alarm companies and their customers and requiring customers to contract only with the district. The Seventh Circuit held, however, that the district did have statutory authority to require direct connections to the district’s monitoring board through wireless technology. But, that authority was not so broad as to authorize the district to establish a monopoly over alarm transmitters and monitoring services. Consequently, the district could not require all customers to buy alarm signaling services and equipment solely from the district or just one private alarm company.

The Seventh Circuit’s finding that the district has the authority to require direct connections to the district's central alarm board for monitoring is consistent with the 2002 Illinois Appellate Court decision in Alarm Detection Systems, Inc. v. Village of Hinsdale that non-home rule municipalities can require owners to connect their fire alarm systems directly to the municipality’s fire board.

Post Authored by Julie Tappendorf, Ancel Glink

Ancel Glink's "In the Zone" E-News (1st Qtr 2012) Released

2012-02-28T08:00:00.000-06:00

Check out the most recent issue of Ancel Glink's e-newsletter, 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:

Wake of the Flood: Flood Waters, Bloated Budgets and a Plan to Save Your Community

Learn the three steps to cutting stormwater management costs in your community, including "Fix Your Code", "Shift Your Expenses" and "Educate the Public."

Conflicts of Interest Under the TIF Act

Read this article to understand the type and nature of conflicts that are prohibited under the TIF Act and how a municipality can adopt local policies to clarify the conflict rules.

New Decisions

This issue updates our readers on three new cases and opinions.

The Attorney General issued an opinion that school districts are subject to local zoning ordinances.
An Illinois appellate court held that non-home rule municipalities have authority to prohibit the drilling of oil and gas within its boundaries.
Another appellate court upheld Chicago's weed ordinance.

New and Proposed Legislation

This issue also reports on new laws and proposed legislation of interest to land use professionals, including the following:

New Voting and Notice Requirements for Annexations: H.B. 5188 would amend the annexation provisions of the Illinois Municipal Code to increase the voting requirements for certain annexations from a majority of owners and/or electors to 60%. The bill would also require a public hearing with prior notice before a municipality can voluntary annex property under 65 ILCS 5/7-1-8.

TIF Amendments: There are a number of bills that have been introduced to amend the TIF statute. The one that might have the most traction is H.B. 4694 that would amend the joint review board provisions to require a 3/5 vote of the JRB to make a recommendation on a TIF plan. The bill also provides that a failure by the JRB to make a timely report to the corporate authorities is deemed a negative recommendation.

Lender Responsibility for Homes in Foreclosure: H.B. 5339 would place responsibility on lenders for protecting and securing residential properties once foreclosure proceedings have commenced.

Amendment to Telecommunications Act Limits Local Control of Cellular Facilities

2012-02-27T08:00:00.000-06:00

Last week, President Obama signed HR 3630, the Middle Class Tax Relief and Job Creation Act of 2012, into law. In addition to extending unemployment benefits and tax cuts, the law also amends the Telecommunications Act of 1996. The new law would limit local government authority to control the collocation of new facilities or the removal or replacement of existing facilities on existing towers or structures.

The pertinent language is contained in Section 6409, as follows:

SEC. 6409. WIRELESS FACILITIES DEPLOYMENT.

(a) FACILITY MODIFICATIONS.

(1) IN GENERAL. Notwithstanding section 704 of the Telecommunications Act of 1996 (Public Law 104–104) or any other provision of law, a State or local government may not deny, and shall approve, any eligible facilities request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station.

(2) ELIGIBLE FACILITIES REQUEST. For purposes of this subsection, the term ‘‘eligible facilities request’’ means any request for modification of an existing wireless tower or base station that involves

(A) collocation of new transmission equipment;

(B) removal of transmission equipment; or

* * *

The new law does not provide any guidance as to what constitutes a “modification” or a substantial change. Consequently, local governments should be prepared for telecommunication providers arguing for an expansive interpretation of the type of changes that local governments “shall approve.”

In most cases, the new law will have little impact on how municipalities process the majority of facility modifications. For example, the removal or replacement of transmission equipment has often been administratively approved by the local siting authority where the number and size of antennas have not substantially changed. On the other hand, if a new carrier wants to collocate their antennas on an existing pole or tower, they are likely to need a new base station, which would not fall within these new restrictions on local control. Where a new carrier can share a base station with an existing carrier, the law will apply to limit local zoning authority but this is a rare circumstance.

There will be even more emphasis on municipalities to ensure that their initial siting review is done correctly and that their cellular zoning ordinances are up to date so they can demand enough information to make a decision based on evidence in the record, and not just on speculation and bias. Moreover, the authority granted to each carrier should be the minimum required to permit service. In that way, municipalities can better limit the circumstances where the local zoning authority must issue a non-discretionary permit for collocation.

Thanks to IMLA’s Local Government blog for reporting on this new law.

Post Authored by Adam Simon and Julie Tappendorf, Ancel Glink

Supreme Court gives police officers qualified immunity: SCOTUSblog

2012-02-24T15:21:00.000-06:00

Opinion analysis: Court gives police officers qualified immunity : SCOTUSblog

Reported on SCOTUSblog this afternoon - A Los Angeles sheriff’s detective and his supervisor may have erred in executing a search warrant that lacked probable cause, but they were not “plainly incompetent” so as to be denied qualified immunity. That was the Court’s holding yesterday in Messerschmidt v. Millender. The Court’s divided ruling declined to make any obvious sweeping revisions to its nearly thirty-year-old jurisprudence regarding immunity for officers who execute warrants lacking probable cause, although Orin Kerr here suggests at least one aspect in which the opinion could prove significant.

Property Tax Legislation Would Affect Local Government Revenues

2012-02-24T08:00:00.000-06:00

Senate Bill 2073 seeks to amend the Property Tax Extension Limitation Law (PTELL) to prevent a taxing body whose total assessed value decreases from the previous year, excluding new construction, from collecting any increase by setting the district’s tax cap to zero unless voters approve an increase by referendum. The PTELL, or tax cap, limits the annual increase that taxing bodies can receive to either the rate of inflation or 5 percent, whichever is less.

Most local governments have already seen significant drops in tax revenues over the past few years due to decreasing home values and the lack of new construction, requiring them to either shrink their budgets through layoffs and reductions in services or to find new sources of revenue such as fees and non-property taxes, or both. If passed, this new legislation will certainly affect the level of services provided by local governments to their residents.

The bill, which passed the House by a vote of 74-39, still has to return to the Senate for a concurrence vote.

Post Authored by Julie Tappendorf, Ancel Glink

OMA Bill Would Require "Sufficiently Descriptive" Agendas

2012-02-23T08:00:00.000-06:00

Earlier this month, a bill was introduced that would amend the Illinois Open Meetings Act in two respects. First, House Bill 4687 would require that meeting agendas be "sufficiently descriptive" to give the public reasonable notice of the items that will be considered or acted on a meeting. Second, the bill would require public bodies to have at least one copy of a meeting notice or agenda continuously available for public review during the 48 hour period prior to the meeting.

The bill would add a new paragraph (c) to section 2.02 as follows:

(c) Any agenda required under this Section shall be sufficiently descriptive to give the public reasonable notice of the items that will be considered or will be the subject of final action at the meeting. The body conducting a public meeting shall ensure that at least one copy of any requested notice and agenda for the meeting is continuously available for public review during the entire 48-hour period preceding the meeting.

The new bill is problematic for a couple of reasons. First, the initial sentence seems to be at odds with paragraph (a) of section 2.02 that provides that: "The requirement of a regular meeting agenda shall not preclude the consideration of items not specifically set forth in the agenda." This provision was at issue in the 2002 appellate court case, Rice v. Board of Trustees of Adams County. Ultimately, the Rice court concluded that a public body could not take final action on an item unless it was listed on the agenda; however, the court determined that this provision would allow a public body to consider items not listed on the agenda under 2.02(a) because "consideration" is in the nature of deliberations and discussion, not action. The proposed legislation does not eliminate this language nor does it address the internal inconsistency within section 2.02 between the language of paragraph (a) and the new provision in paragraph (c).

Furthermore, the "sufficiently descriptive" language is likely to create more confusion for local governments in complying with the new requirement. It also adds a "layer" of statutory ambiguity that seems unnecessary. First, the statute itself uses the term "germane" for agenda items for special, rescheduled, and reconvened meetings. A recent appellate court interpreted that language to allow actions that are "closely related or germane" to the listed item on an agenda. This same language could be applied to regular meeting agendas. Second, the appellate court in Rice required an agenda to provide "sufficient advance notice to the people" of the action to be taken. Either or both of these interpretations would provide sufficient guidance to local governments in determining how detailed an agenda must be.

Finally, it is not clear what the second sentence of the proposed legislation adds to existing law since the OMA already requires a public body to post an agenda at least 48 hours before a meeting. 5 ILCS 120/2.02(a). It is possible one could argue that the current statutory language would allow a public body to remove the agenda at any time after posting; however, the agenda and public notice are still public records available for inspection or copying under the Illinois Freedom of Information Act.

The IML opposes the bill, citing concerns with the potential for litigation against local governments because of the ambiguity of the new language.

Post Authored by Julie Tappendorf, Ancel Glink

Handouts from Illinois Association of Park Districts' Conference

2012-02-22T08:00:00.000-06:00

Last month, the Illinois Association of Park Districts held its annual conference "Soaring to New Heights" at the Hyatt Regency in Chicago. A number of Ancel Glink attorneys attended the conference and presented speeches on more than a dozen topics of interest to park district officials and employees.

The following are copies of our attorneys' handouts from these presentations:

Post Authored by Julie Tappendorf, Ancel Glink

Court Enforces Indemnification Clause Against Developer

2012-02-21T07:15:00.003-06:00

On February 8, 2012, an Illinois appellate court upheld an indemnification clause against several attacks from a developer against whom the indemnification provision was enforced. Hartz Construction Company, Inc., v. The Village of Western Springs, 2012 IL App (1st) 103108. The Village had entered into recapture agreements with two developers, Hartz and Rhoads, who were developing land side-by-side. Rhoads constructed improvements costing over $3.5 million dollars. Rhoads owned 88% of the property at issue and Hartz owned 12%. The Village entered into a recapture agreement with Rhoads, under which Hartz was to pay for some of the improvements as it began to use them. The following indemnification provision was contained in the recapture agreement between the Village and Rhoads:

[T]he DEVELOPER further agrees to indemnify and hold harmless and defend the Village of Western Springs, and its former, current and future officials, agents, servants, employees, attorneys and insurers and/or successors in interest of any kind, for and from any and all claims, actions, omissions, losses, injuries, lawsuits, counterclaims, debts, dues, obligations, judgments, awards, demands, liens, expenses, attorneys’ fees, costs and expenses and costs of litigation, expert witness fees and consultant fees, and liability for damages of any kind and causes of action of any kind and nature, whether known or unknown at this time, whether present or future or contingent, that are brought or filed against the Village of Western Springs, or any of its former, current and future officials, agents, servants, employees and insurers and/or successors in interest of any kind, by any person or entity arising out of, relating to, connected with, or in any way associated with this Agreement. In the event that such a claim, action, cause of action or lawsuit is brought or filed, the Village of Western Springs, and its former, current and future officials, employees, servants, agents, attorneys, insurers, and/or successors in interest sued thereunder, shall have the right to determine the attorney(s) of its, his, her or their choice to represent and defend their interests in any legal or administrative action, all at the DEVELOPERS’ expense pursuant to this Agreement.

The Village was later sued by both Rhoads and Hartz. Rhoads contended that it was not obligated to pay the Village’s legal expenses because the Village did not fully cooperate with Rhoads in the lawsuit filed by Hartz. Rhoads argued that the Village had chosen its own lawyer who did not fully cooperate with or provide a coordinated defense. The court found that there were conflicts of interest between the defenses of the various parties and that the indemnification clause was not lost in a situation where the indemnified party reasonably sought to pursue its own interests. The court further found that the language of the recapture agreement did not contain any express words mandating a duty of cooperation by the Village. Although there is some implied obligation of cooperation at common law, the court found that the Village had not created the conflict of interest in an effort to avoid cooperation.

Post Authored by Julie Tappendorf, Ancel Glink

Supreme Court Adopts New Test for “Emergency” to Qualify for PSEBA Benefits

2012-02-17T11:23:00.001-06:00

Hot off the presses - this morning, the Illinois Supreme Court established a new test to define an “emergency” for purposes of eligibility for PSEBA benefits. In Gaffney v. Orland Fire Protection District, the Supreme Court consolidated the appeals of two appellate court opinions in cases involving injuries incurred by firefighters in training exercises. In one case, the appellate court had determined that a firefighter injured in a training exercise was eligible for PSEBA benefits; in the other, the court determined that the training exercise did not involve an “emergency” for PSEBA purposes. The Supreme Court reversed both rulings, coming to the opposite conclusion in each case.

Under PSEBA, a public safety officer is eligible for health benefits if the officer suffers a catastrophic injury or is killed in the line of duty as a result of (1) a response to fresh pursuit; (2) a response to what is reasonably believed to be an emergency; (3) an unlawful act of another; or (4) the investigation of a criminal act. The appellate court defined an “emergency” under PSEBA as a situation that “it is urgent and calls for immediate action.” The Supreme Court agreed with the appellate court’s definition, but added a new requirement – that the urgency or immediate action must result from an “unforeseen circumstance or event” that results in imminent danger to person or property.

The Court applied the new test to the training exercises involved in the consolidated cases. With respect to Gaffney’s injury, the Court determined that the live fire exercise qualified as an “emergency” under PSEBA because his injury resulted when a hose was unexpectedly entangled in a smoke-filled building. Lemmene’s knee injury, on the other hand, resulted from a training exercise that was conducted under planned, controlled conditions, not involving a live fire or any imminent danger; as a result, there were no unforeseen circumstances to qualify as an emergency for PSEBA benefits.

The dissent disagreed with the majority's adoption of an "unforseen circumstances" requirement to the test for an emergency under PSEBA. The dissent would also have denied PSEBA benefits to both Gaffney and Lemmene because both firefighters were aware they were participating in training exercises.

The Illinois Municipal League had filed amicus briefs in these two cases arguing that training exercises should not be considered “in response to an emergency” for purposes of eligibility for PSEBA benefits. Unfortunately for local governments anxiously awaiting this decision, the Supreme Court did not agree with the IML's position.

Post Authored by Julie Tappendorf, Ancel Glink

Ancel Glink Municipal Question of the Month: Tax Levies

2012-02-16T08:00:00.000-06:00

Municipal Q&A - February 2012:

What can our municipality do if our local assessor and county clerk, in a tax cap county, fail to properly extend our tax levy against uncapped new construction?

Answer: In many counties, the officials send documentation to municipalities and other taxing bodies indicating the way in which assessments on existing and new property are established along with the tax rates that are created from the levy ordinances. These documents should be checked carefully when they are received. If an error is made by a county taxing official, the municipality can sometimes increase its levy in a subsequent year with perhaps a slight loss in interest income. If that is not allowed or possible, a lawsuit can be filed against the county officials seeking recovery of the funds which otherwise should have been collected.

Municipalities Can Collect Outstanding Debt through Local Debt Recovery Program

2012-02-15T08:00:00.000-06:00

A new law authorizes Illinois municipalities, school districts, and public universities to enter into intergovernmental agreements with the state comptroller’s office to collect delinquent debts such as outstanding fines or fees, property code violations, parking tickets, and other local obligations. Public Act 97-0632 became effective on January 1, 2012.

Pursuant to the intergovernmental agreement with the state, the municipality will notify the state comptroller of delinquent debt the municipality wants the state to collect. The state comptroller deducts from a debtor's state income tax refund, payroll check, or other state payment the amount due to the municipality for the local debt. The comptroller then deposits the deducted amount into the comptroller debt recovery trust fund and notifies the debtor of his or her right to contest the deduction. If the debtor fails to object within 60 days, or if the hearing officer rules against the debtor, then the comptroller will pay the collected debt amount to the municipality, minus an administrative fee.

Although there are a few administrative and procedural hurdles to clear before a debt can be collected through this process, this legislation does offer municipalities an additional tool in collecting outstanding local debt.

Post Authored by Julie Tappendorf, Ancel Glink

Fair Housing Case Dismissed, Magner v. Gallagher (USSCT)

2012-02-14T11:42:00.000-06:00

On November 9, 2011, we reported that the U.S. Supreme Court granted cert in Magner v. Gallagher, a case involving a challenge by rental property owners to the City of St. Paul’s housing code that imposes obligations on landlords to maintain and repair rental properties. The rental property owners claimed that the ordinance has a disparate impact on minorities because the housing code requirements will increase their costs and decrease the number of rentals available to low-income households. The Eighth Circuit Court of Appeals had ruled against the City and allowed the disparate impact suit to move forward under the Fair Housing Act. The case was set for oral argument on February 29, but the City withdrew its appeal last week.

The appeal involved two questions: (1) whether disparate impact claims are recognized under the Fair Housing Act; and if so (2) what test should be used to analyze these claims. The key issue was whether the Fair Housing Act prohibits local governments from enforcing housing code violations in a way that would negatively impact minorities, even if there is no intentional bias. The case was being closely monitored by local governments and civil rights and housing advocates. More than a dozen amicus briefs had been filed in the case, including briefs of the NAACP and ACLU on behalf of the rental property owners and briefs of the International Municipal Lawyers Association (IMLA) and American Bankers Association on behalf of the City of St. Paul, among others.

A Twin Cities newspaper reported that the City of St. Paul withdrew its appeal because "a victory could substantially undermine important civil rights enforcement throughout the nation." Mayor Chris Coleman said that, if the city had won, it could have eliminated "disparate impact" civil rights enforcement under the Fair Housing Act, which, among other things, forbids individuals from making housing "unavailable...to any person because of race, color, religion, sex, familial status, or national origin."

Post Authored by Julie Tappendorf, Ancel Glink

Conflicts of Interest Under the TIF Act

2012-02-09T08:00:00.000-06:00

Section 4(n) of the Illinois TIF Act, 65 ILCS 5/11-74.4-4(n), prohibits conflicts of interest by municipal officials who own real estate within a proposed TIF district. Because this section has created some confusion in its application, this article summarizes the section and suggests a method of clearing up the rules, at least in home rule municipalities.

Cutting through the legislative obfuscation, the important elements of §4(n) provide that:

If the mayor/village president or any alderman/trustee (“elected officer”) owns or controls an interest, directly or indirectly, in property within a proposed TIF area, that officer must disclose the interest in writing to the municipal clerk.
If an elected officer disposes of an ownership interest in property within a proposed TIF area, the terms of that disposition must be reported to the clerk.
These disclosures must be reported to the village board/city council and noted in the minutes of a board/council meeting.
The same disclosure rules apply to any municipal employee or consultant involved in the planning and preparation of the TIF redevelopment plan or project.
Any of the above persons must refrain from

Any “further official involvement” in regard to the redevelopment plan;
Voting on any matter pertaining to the TIF plan;
Communicating with any member of the board/council on any matter pertaining to the redevelopment plan, project or area.

No elected officer or municipal employee involved in the TIF process may acquire any interest, directly or indirectly, in any real estate in a proposed or existing TIF district after

obtaining knowledge of the TIF plan, or
the first public notice of the TIF plan

A property interest acquired in a single parcel of land by an elected officer in a TIF district established prior to 1989 as the officer’s primary residence is permitted but must be disclosed to the clerk.
A month-to-month lease in a single parcel of land by an elected officer is not prohibited but must be disclosed to the clerk.

The Act does not provide a specific penalty for a violation but it could be deemed misconduct in office, potentially resulting in removal. As far as we know, no one has ever been charged with violating this section, nor has a TIF district been challenged because of an alleged violation.

The purpose of §4(n) is, of course, to prevent public officials, employees and consultants from profiting from “inside information” about a proposed TIF, and the economic development to follow. But a literal application of the section can create problems for public officials. The effect is that a public official who owns property in an area being considered for TIF development may not vote or even communicate with any other official, employee or consultant about the TIF project, even as a private citizen speaking during the public comment portion of a board meeting. And officers and employees may not purchase any property in an area being considered for a TIF district. A month-to-month lease is permitted, but not a year-to-year lease.

As an example, an elected official owned a condo in a proposed TIF district in which his mother was the primary resident. In another case, a trustee owned commercial property in an area being considered for a TIF district. In both cases, the official’s ownership predated the TIF proposal by many years. §4(n) would prohibit these officials from participating in the TIF process in any way.

Home rule municipalities might consider adopting an ordinance to supersede the TIF Act. The ordinance would be consistent with the purpose of §4(n) but eliminate the inconsistencies, omissions and conflicts. In any case, in order to determine whether an elected officer, employee or consultant is restricted by §4(n), each such officer, and each employee and consultant who will be involved in developing the TIF should complete and submit a disclosure form to the municipal clerk. Ancel Glink can assist a home rule municipality in drafting an ordinance to replace §4(n) and can provide the suggested disclosure forms.

Post Authored by Paul Keller, Ancel Glink.

Wake of the Flood: Flood Waters, Bloated Budgets and a Plan to Save Your Community

2012-02-08T08:00:00.000-06:00

When cutting costs, few municipalities start with an overhaul of their stormwater management program. But, as it turns out, they should. Stormwater management eats up a large percentage of tax revenue (e.g. 20% of property taxes in Downers Grove, Illinois). Stormwater management is often wildly inefficient and ripe for dramatic gains with little to no impact on the public. Finally, all municipalities—home rule and non-home rule—have express authority to take action immediately.

In short, stormwater management is the low hanging fruit of budget cuts. Instead of reaching for painful employment cuts, start with the following steps and make some easy gains. Here’s how to start:

Step 1: Fix Your Code

Illinois law gives local governments legal authority to “regulate and determine the area of open spaces, within and surrounding such buildings,” and “set standards to which . . . structures shall conform.” 65 ILCS 5/11-13-1 (3); (6). Plainly stated, local governments can set landscaping and grading standards for all buildings and structures in their jurisdiction. Moreover, the Illinois Legislature expressly states that local governments may use this authority to address “the hazards to persons and damage to property resulting from the accumulation or runoff of storm or flood waters.”

Most communities have exercised this authority and included landscaping and grading requirements in their zoning codes. However, few ordinances connect landscaping ordinances with stormwater management goals. Take, for example, Village A and B.

Village A manages runoff by funneling all stormwater from parking lots and roofs directly to the municipal storm system (in some cases, with temporary detention on-site to reduce flow rate). At the same time, Village A requires landowners to plant vegetation in islands throughout a parking lot and around the perimeter. Landowners are required to put curbs around the vegetated areas which keep stormwater funneling toward the municipality’s storm sewer system. A new parking lot can create 16 times more stormwater runoff than the lawn or field it replaced. Using the tax dollars, Village A takes on the sole responsibility of managing this flood of water with its storm sewer system.

Village B takes a different approach. Using the above authority, Village B requires parking lots to be graded toward the vegetated islands and perimeter. Curbs are removed and water flows into these depressed vegetated areas (i.e. bioswales). The runoff is filtered and absorbed by the plants that are required under the Village’s landscaping ordinance. Storm drains are placed in the vegetated areas and collect water not absorbed. By coordinating its landscaping and stormwater management requirements, Village B dramatically reduces the volume (and pollutant load) of stormwater entering their system. As a result, the system has less wear and a greater capacity to handle flash flood events.

Step 2: Shift Your Expenses

In addition to maintenance costs, local governments must budget funds for pollution prevention. Most storm sewer systems are federally regulated (“Municipal Separate Storm Sewer Systems” or “MS4s”) under the Clean Water Act (“CWA”). Among other requirements, local governments must choose from a menu of best management practices to reduce the amount of dirt, grease, salt and other pollutants that reach the storm sewer. For many communities, street sweeping, at a cost of hundreds of thousands of dollars per year, is the pollution reduction method of choice.

Street sweeping, however, is not the only option. In fact, it is not even the preferred option for state and federal EPA regulators. In the past few years, IEPA and USEPA have repeatedly noted that on-site retention using vegetated swales is the preferred best management practice when compared to street sweeping. Agency guidelines are now pushing local governments to follow Village B’s lead. By doing so, local governments not only gain the benefits of reduced sewer maintenance, but can reduce street sweeping efforts, saving additional money. For example, in the City of Naperville, Illinois, a reduction in the scope and frequency of street sweeping is projected to save $170,000 annually.

Step 3: Educate the Public

To gather support for your shifting regulations, make sure to educate the public. For landowners, the shift in landscaping, grading and curb requirements is good for their long-term bottom line. First, most applicants are required to grade parking lots and install vegetated islands under existing codes. The new ordinance simply shifts the direction of the grading and type of vegetation. The cost of installing bioswales instead of curbed, vegetated (and watered) islands is likely a wash. Second, remind the public that the modified zoning code is designed to reduce flooding. In Illinois, flooding is the greatest threat to both residential and commercial property. By reducing this threat, local governments are reducing flood-related expenses for private landowners.

In the end, an efficient stormwater management policy will reduce government spending, reduce property taxes, reduce flood losses, and please state and federal regulators (who control future funding). Before cutting much needed community services to repair your budget, look at how you manage stormwater. Are you taking advantage of these reductions or washing your money away?

Post Authored by Brent Denzin, Ancel Glink

"Green" SSA Bill Starts Spring Legislative Session

2012-02-06T15:43:00.000-06:00

One early item of interest in the spring legislative session is Ill. H.B. 28. The proposed legislation would authorize counties and municipalities to establish "green" special service areas for energy efficiency improvements, renewable energy improvements, water use improvements, or a combination of those improvements. Property could only be included in a "green" SSA if the property owner has executed an agreement with the county or municipality consenting to the SSA. Once established, counties and municipalities would be authorized to levy property taxes and issue bonds to finance "green" improvements within the SSA area.

Stay tuned because we may see other land use and development legislation before the February 10, 2012 deadline to introduce substantive bills in the Illinois Senate, and February 16, 2012 in the Illinois House.

Post Authored by Dan Bolin, Ancel Glink.

Upcoming Webinar/Teleconference on RLUIPA

2012-02-03T08:00:00.000-06:00

Don't miss this upcoming webinar hosted by Dwight Merriam and his team at Robinson & Cole titled "Religious Land Use and Institutionalized Persons Act Claims - Strategies for Local Governments to Avoid or Defend RLUIPA Actions." Also on the faculty is Professor Marci Hamilton, one of the nation's leading church/state scholars and the Paul R. Verkuil Chair in Public Law at the Benjamin N. Cardozo School of Law, Yeshiva University.

The webinar will be held on March 13, 2012, but the early registration deadline (for a tuition discount) is February 17, 2012. Registration information here.

Thanks to Robert Thomas for posting this webinar on his blog inversecondemnation.com: March 13, 2012: RLUIPA Webinar

Ban of Registered Sex Offenders from Library Violates First Amendment

2012-02-01T08:00:00.000-06:00

Albuquerque’s ban of registered sex offenders from public libraries violates the First Amendment because libraries are public forums, and the city failed to show that the ban was narrowly tailored and that it left open ample alternative channels of communication. Doe v. City of Albuquerque, No. 10-2102 (10^th Cir. January 20, 2012).

Plaintiff, a registered sex offender, challenged the city's exclusion of sex offenders from its public libraries. The district court concluded that the city's ban burdened plaintiff's fundamental right to receive information, and the ban did not satisfy the time, place, or manner test applicable to restrictions in a designated public forum. The city appealed to the Tenth Circuit.

The Tenth Circuit Court determined that because a library is a designated public forum, the city had the burden to establish that its ban was narrowly tailored to serve its interest in providing a safe environment for library patrons and leaves open alternate channels of communication. However, the city had failed to present any evidence as to the reasons or justification for its ban, whether the ban was narrowly tailored to address the interest sought to be served, or whether the ban left open alternative channels for receiving information. Instead, the city mistakenly contended that it had no burden to do anything in response to plaintiff's summary judgment motion.

The court suggested that had the City presented evidence as to the reasons or justification for the ban, “it is not difficult to imagine that the ban might have survived Doe’s challenge, for we recognize the City’s significant interest in providing a safe environment for its library patrons, especially children.” But, since the city did not meet its burden, the Tenth Circuit affirmed the district court's ruling that the city's ban was unconstitutional.

Post Authored by Julie Tappendorf, Ancel Glink

Party Can Waive Rights under Anti-SLAPP Statute

2012-01-31T08:00:00.000-06:00

In Johannesenv. Eddins, 2011 IL App (2d) 110108, an Illinois appellate court overturned the trial court’s dismissal of a lawsuit and remanded the case to determine whether a party had waived his rights under the anti-SLAPP law (the Citizen Participation Act) when he verbally agreed to support his neighbor's variation application.

Plaintiff sought to build a newhome next to defendant’s property. Defendantrequested that the plaintiff shift the proposed home further away fromdefendant’s property, creating the need for a corner side yard variation. Plaintiff agreed to accommodate defendant’srequest; in exchange, defendant orally agreed that he would support the owners’application for a corner side yard variance. Plaintiff filed a variation application,and defendant signed the application as a “nominal applicant.”

During and after the ZBA’sconsideration of plaintiff’s’ application, defendant allegedly engaged in aseries of ex parte communicationswith the village manager, to urge the recalculation of plaintiff’s frontsetback requirement. The village manager issued a determination letterrecalculating the front setback requirement. That recalculation meant plaintiff could no longer construct his proposedhome. Plaintiff appealed the manager’s determination, and defendant publiclyopposed plaintiff’s appeal. The villageultimately granted less intense variations, and plaintiff had to redesign asmaller home, in a significantly different location.

Plaintiff sued defendant, claiming he breached his oral promiseto forego any challenge to the village’s front setback calculation. Defendant filed a motion to dismiss under Illinois’ anti-SLAPPstatute, the Citizen Participation Act. That statute protects a citizen’s right to publicparticipation, and authorizes a party to file a motion to dismiss a lawsuit onthe grounds that the suit is based on defendant’s actions in furtherance of hisor her First Amendment rights of petition, speech, association, or to otherwiseparticipate in government.

On appeal, plaintiff argued that defendantwaived his First Amendment rights when he entered into an oral agreement to supportthe corner side yard variation and forego any challenge to the village’s frontsetback calculation. The appellate court found that the trial court failed toconsider plaintiff’s argument, and that it was improper to dismiss plaintiff’slawsuit because actual testimony was necessary to establish the terms of thealleged oral agreement and the extent of any waiver by defendant. The courtnoted that a party may waive rights under the statute based on a preexistinglegal relationship, like a contract or settlement agreement.

Post authored by Dan Bolin, Ancel Glink.

Non-Home Rule Municipality Can Prohibit Oil and Gas Drilling

2012-01-30T08:00:00.000-06:00

An Illinois appellate court recently held that the City of Carlyle, a non-home rule municipality, has the authority to prohibit the drilling of oil within the City’s boundaries. Tri-Power Resources, Inc. v. City of Carlyle, 2012 IL App (5th) 110075.

TriPower had leased mineral interests in a 67-acre parcel of land in unincorporated Clinton County and had obtained a permit to drill for oil on the property from the Illinois Department of Natural Resources (IDNR). The City subsequently annexed the property, which was automatically zoned into a residential zoning district. The City’s zoning code prohibits the drilling of oil on residentially zoned property. TriPower sued the City, claiming that the City was preempted from prohibiting the oil drilling on the property by the Illinois Oil and Gas Act.

The appellate court first addressed the issue of the City’s authority to prohibit the drilling activities, finding that a non-home rule municipality is limited to “those powers specifically conveyed by the constitution or by statute.” The Illinois Municipal Code authorizes municipalities to control the use of property through its zoning authority. Although the City’s zoning code did not expressly prohibit (or permit as a by-right or special use) the drilling or operation of gas/oil wells, the court determined that these uses were deemed prohibited by exclusion.” In addition, the court noted that Section 11-56-1 of the Illinois Municipal Code provides that local municipal governments “may grant permits to mine oil or gas.” In other words, the City had express statutory authority to regulate, and even prohibit, oil drilling within its borders.

Next, the appellate court addressed TriPower’s argument that the Illinois Oil and Gas Act preempts municipalities from prohibiting drilling activities that are permitted by the IDNR. The court noted that the Oil and Gas Act authorizes the Department to issue drilling permits, but only upon receipt of official consent of the relevant municipality. The court concluded that the plain meaning of this statutory provision is to authorize municipalities to prevent the IDNR from issuing a permit for activities to occur within municipal limits.

Thanks to Patty Salkin for the case summary on her blog, Law of the Land.

Village Officials Must Accept Personal Delivery of FOIA Requests

2012-01-27T09:22:00.000-06:00

Yesterday, the Illinois Attorney General issued a binding opinion finding a municipality in violation of the Freedom of Information Act because a village president refused to accept personal delivery of a FOIA request. The Village had recently adopted a policy requiring all FOIA requests to be made by mail only. Notwithstanding the village policy, the requester hand-delivered a FOIA request to the village president at a board meeting. The village president denied the request, citing the new village policy, and the requester filed a complaint with the AG.

According to the opinion, the requester had frequently hand-delivered FOIA requests to individual board members because the village did not have office hours and mail was not regularly picked up. The requester admitted that he had, on occasion, hand-delivered FOIA requests to board members on private property and on public streets.

The AG looked to Section 3(c) of the Act that provides that FOIA requests “may be submitted to a public body via personal delivery, mail, telefax, or other means available to the public body.” Based on this language, the village could not adopt a policy refusing to accept hand-delivered FOIA requests. The AG did acknowledge that the opinion did not mean that personal delivery at any time or place is acceptable. Specifically, the opinion did not mean a “village officer” would be obligated to accept delivery of a FOIA request during a chance encounter on the sidewalk, or at his or her private residence or place of business.

Nevertheless, based on this opinion and other recent opinions, the AG continues to interpret “public body” to include individual members of a public body. The plain language of the statute, however, defines “public body” as the corporate bodies themselves and members of those bodies are not included within the scope of the definition. See Section 2(a) of FOIA (reprinted below). Moreover, it is not clear how far the AG’s interpretation would extend beyond members of the corporate authorities (i.e., president and trustees in this case) – in other words, would the AG’s definition of “public body” also include other village officers or even employees? At least with respect to whether text messages of public officials and employees on private devices are subject to FOIA, the answer is yes. Whether any public official or employee (public works employee, police officer, or other public employee or official) must accept personal delivery of a FOIA request is not so clear.

Sec. 2. Definitions. As used in this Act:
(a) "Public body" means all legislative, executive, administrative, or advisory bodies of the State, state universities and colleges, counties, townships, cities, villages, incorporated towns, school districts and all other municipal corporations, boards, bureaus, committees, or commissions of this State, any subsidiary bodies of any of the foregoing including but not limited to committees and subcommittees thereof, and a School Finance Authority created under Article 1E of the School Code. "Public body" does not include a child death review team or the Illinois Child Death Review Teams Executive Council established under the Child Death Review Team Act.

Post Authored by Julie Tappendorf, Ancel Glink.

Rental Inspection Ordinance Found Unconstitutional

2012-01-26T08:00:00.000-06:00

A New York Appellate Court recently found a local ordinance requiring an inspection and rental occupancy permit prior to occupancy of rental units unconstitutional. ATM One, LLC v. Incorporated Village of Hempstead. The Court determined that the ordinance exceeded the village’s authority by conditioning an owner’s ability to engage in the business of renting his or her own property on the owner’s forced consent to forego constitutional rights. The court also found the ordinance unconstitutional because it authorizes a warrantless inspection of residential real property.

Post authored by Julie Tappendorf, Ancel Glink.

Out-of-State Adult Businesses Can Be Used to Satisfy “Alternative Avenues of Communication”

2012-01-24T08:00:00.000-06:00

The New Jersey Supreme Court recently addressed the question whether a court can consider the availability of “alternative channels of communication” in another state as part of its determination of an as-applied challenge to the state law limiting the places where sexually-oriented businesses may operate. In Borough of Sayreville v. 35 Club, L.L.C., No. A-66-10, (N.J. Sup. Ct., January 19, 2012), the court answered yes, finding that a municipality can consider not only the “neighboring communities” that lie within a state’s borders, but also consider “neighboring communities” beyond those borders.

In November 2007, 35 Club L.L.C. began operating a business called “XXXV Gentlemen’s Club” in the Borough of Sayreville. The business has been described as an “all-nude gentlemen’s cabaret” and falls within the statutory definition of a sexually-oriented business. Shortly after the business opened, the Borough of Sayreville sued the business to permanently enjoin it from operating at that location because state law prohibits the operation of a sexually-oriented business within 1,000 feet of a public park or residential zone.

The court first acknowledged that adult-oriented forms of expression are entitled to the protections afforded by the First Amendment. The court noted that the U.S. Supreme Court has considered challenges to ordinances that regulate the locations where businesses of this type may be conducted through the creation of buffer zones and has upheld these ordinances as consistent with the protections afforded by the First Amendment. The court cited the Supreme Court’s decision in City of Renton v. Playtime Theatres for the conclusion that locational restrictions are content-neutral because they do not prohibit these businesses, but instead are “designed to prevent crime, protect the city’s retail trade, [and] maintain property values,” thereby aiming to preserve quality of life in the communities that adopt them.

The question the New Jersey court wrestled with was whether enforcing the state's locational restrictions would allow for reasonable alternative avenues of communication. The statute at issue requires a 1,000-foot buffer between a sexually-oriented business and certain sites including schools, public parks, and places of worship. The court noted that there were a number of reasons why the state looked at the regional market in determining whether there are alternative avenues of communication available. First, it might be more convenient for a patron to travel a few minutes into New York or Pennsylvania than to travel twenty minutes away to Newark or Elizabeth. Second, the court recognized that patrons of these adult businesses often travel to other states to access this sort of entertainment. Third, the court noted that prohibiting any consideration of locations in nearby states would result in unequal treatment among municipalities. Finally, the court rejected 35 Club’s argument that courts should not consider sites beyond state borders because the operators of these businesses have no voice in municipal government of neighboring states, finding that this argument ignores the fact that these businesses have no more voice in municipal governments within the state.

Post authored by Julie Tappendorf, Ancel Glink.

Public Entities Must Adopt Reasonable Accommodation Policies for Disabled Persons

2012-01-23T09:23:00.001-06:00

Recent changes to the Americans with Disabilities Act and the Rehabilitation Act require a public entity to adopt policies related to the use of mobility assistance devices and the use of service animals as reasonable accommodations for individuals with disabilities.

The regulations interpreting Title II of the ADA prohibit discrimination in program accessibility:

[N]o qualified individual with a disability shall, because a public entity=s facilities are inaccessible to or unusable by individuals with disabilities, be excluded from participation in, or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any public entity. 28 C.F.R. '35.149.

The regulations also provide for program accessibility in existing facilities:

A public entity shall operate each service, program, or activity so that the service, program, or activity, when viewed in its entirety, is readily accessible to and usable by individuals with disabilities. 28 C.F.R. '35.150(a).

For people who require assistance in the form of mobility devices or service animals, the adoption and implementation of policies that make a public entity’s services, programs and activities more inclusive help meet the obligations of the Act.

In putting together these policies, a public entity should make sure that any exclusion of either type of accommodation is based on a particular set of facts after weighing the risks arising from those facts. Generalized fears of potential risks are not an adequate basis for failing to provide a reasonable accommodation. In addition, the policies should provide the public entity with some discretion to use common sense to prevent injuries when there is a direct threat to the safety of patrons.

Post Authored by Adam Simon, Ancel Glink

School Districts are Subject to Municipal Zoning

2012-01-20T08:00:00.000-06:00

The issue of whether school districts must comply with municipal zoning ordinances has been a subject of debate between the districts and municipalities for some time. Under Illinois law, school districts are not subject to local building codes, and instead must follow the building regulations contained in the Illinois School Code. Some school districts have taken the position that this preemption of local building control also extends to zoning. The Illinois Attorney General recently addressed the issue of local zoning control in an opinion dated December 23, 2011, No. 11-005.

The question posed to the AG was "whether Illinois public school districts are subject to either municipal or county zoning ordinances." The AG responded that "public school districts are subject to municipal and county zoning ordinances, except to the extent that compliance with local zoning would frustrate a school district's statutory objectives."

The opinion began with a summary of relevant statutes granting authority to municipalities and counties over zoning within their jurisdictions. The opinion then analyzed provisions in the School Code, including Section 10-22.13a that provides that school boards may "seek zoning changes, variations, or special uses for property held or controlled by the school district," as well Section 10-20 providing that the authority granted by the School Code "does not release a school board from any duty imposed upon it by this Act or any other law." Reading these two statutory provisions together, the AG determined that these statutes would be rendered superfluous if school districts were completely exempt from local zoning.

In short, according to the Illinois Attorney General, school districts are subject to municipal zoning ordinances. If a local zoning ordinance would interfere or frustrate the school district's statutory objectives, however, a school district can seek judicial review. There is no automatic exemption in these circumstances; instead, the issue of whether a zoning ordinance frustrates a school district's objectives is a question of fact for the judge to resolve.

Post Authored by Julie Tappendorf, Ancel Glink.

Supreme Court Declines to Take on Prayer at Government Meetings

2012-01-18T08:00:00.000-06:00

The U.S. Supreme Court passed on the opportunity to hear two cases involving prayers at government meetings. The first case, Forsyth County, N.C., v. Joyner, et al. (11-546), involved prayers with repeated references to Jesus Christ and to Christian themes at the twice-a-month public meetings of the County Board of Commissioners. The second, Indian River School District, et al., v. Doe, et al. (11-569), involved a regular practice of a School District Board to open its monthly meetings with one of its members reciting a religious invocation. The Fourth Circuit Court, in the Forsyth County case, and the Third Circuit, in the Indian River S.D. case, had ruled that both religious practices were unconstitutional, although opening the meeting with a nondenominational prayer was acceptable.

Post Authored by Julie Tappendorf, Ancel Glink.

Municipalities and Administrative Towing Fees

2012-01-16T10:10:00.001-06:00

A number of Illinois municipalities have enacted ordinances that authorize the imposition of an administrative fee when a vehicle has to be towed and impounded due to the arrest or detention of the owner or driver for violation of a particular law or ordinance. For example, an ordinance might authorize the impoundment of a vehicle in a DUI arrest or when the vehicle has been used in the commission of a felony. Many of these ordinances impose a $500 fee when a vehicle has to be towed and impounded. That administrative fee is in addition to the actual towing and impoundment costs that also must be reimbursed.

Until recently, these ordinances were not expressly authorized by state statute. However, effective January 1, 2012, the Illinois Vehicle Code expressly authorizes municipalities to adopt ordinances imposing impound fees in accordance with the new statute. 625 ILCS 5/11-208.7. The statute provides that a local ordinance must comply with the provisions of this new statute in order to be enforceable, although there is no express home rule preemption. The statute also sets out the bases for which a municipality is authorized to tow and impound a vehicle, including driving under the influence of alcohol or drugs, operation of a vehicle in the commission of a felony, and driving with a suspended or revoked drivers license, among others.

The statute also establishes certain procedures for the impoundment and release of vehicles. These provisions include a requirement that notice be sent to the owner/lessee of the vehicle at the time the vehicle is towed. The municipality must also provide notice of an administrative hearing to the owner, lessee, and any lienholder of record within 10 days after the vehicle is impounded. That hearing must be conducted no later than 45 days after the notice is mailed. The administrative hearing must be conducted by a licensed attorney as hearing officer, who is required to issue a written decision at the conclusion of the hearing.

Recently, a number of class action lawsuits have been brought against Illinois municipalities challenging the imposition of similar administrative towing fees. The lawsuits claim that these fees far exceed the actual costs of administering the towing and impounding of a vehicle, and that the procedures for towing and impounding the vehicles violate due process rights of the vehicle owners.

It remains to be seen how the new statute will affect the outcome of these lawsuits, particularly since the pending lawsuits were filed prior to the effective date of this statute and the challenged ordinances do not have the benefit of express statutory authorization.

Post Authored by Julie Tappendorf, Ancel Glink.

PAC Interprets New "Recurrent Requester" Provision Under FOIA

2012-01-13T08:00:00.000-06:00

The Public Accessor Counsel (PAC) of the Illinois Attorney General's office issued an opinion on January 9, 2012, interpreting the new provision in the Freedom of Information Act that authorizes a municipality to classify an individual as a "recurrent requester" for purposes of responding to FOIA requests. In this opinion, the AG determined that the village violated FOIA by improperly classifying the requesters under the new provision.

In this case, a husband and wife had submitted numerous FOIA requests to a particular village over the course of a year. The village combined the couple's requests together, classifying them as "recurrent requesters" under Section 3.2 of FOIA. As a result, the village took the position that it had 21, rather than 5, business days to respond to the request. The couple filed a request for review of the village's decision with the PAC's office. The village defended its decision to classify the couple as a single entity because their requests were usually in the same envelope and the responses mailed to the same address.

The PAC disagreed with the couple, finding that the village violated FOIA because the statute defines a requester as one "person." Therefore, the couple's requests could not be consolidated to fall within the statutory provision of 50 requests within the statutory time period. In addition, the PAC found that the village failed to follow the statutory procedure for notifying the wife of the village's determination because the notice did not explain why she was treated as a "recurrent requester" or the possible responses that the village would provide within the 21 days.

The PAC's opinion can be accessed on the AG's website.

For those keeping score, the PAC is now 13-0 in issuing binding PAC opinions ruling against the public body (the PAC issued a second binding opinion in 2012 that ruled in favor of a reporter in a request for review filed against the Chicago Public Schools).

Post authored by Julie Tappendorf, Ancel Glink.

Ancel Glink Municipal Question of the Month - Change Orders

2012-01-12T08:00:00.000-06:00

Municipal Q&A - January 2012:

What does a governmental body need to do to approve a change order to a contract previously entered into?

Answer: State law establishes a rather complicated process for the approval of significant change orders. (720 ILCS 5/33E-9) If a change order necessitates an increase or decrease in the cost of the public contract by a total of $10,000 or more, or in the time of completion by a total of 30 days or more, then the corporate authorities of the governmental body or a designee must make a written determination that one of the following three circumstances exists:

(1) the circumstances that necessitate the change in performance were not reasonably foreseeable at the time the contract was signed, or

(2) the change is germane to the original contract as signed, or

(3) the change order is in the best interest of the unit of State or local government and authorized by law.

The written determination and change order must be preserved in the contract's file and also available for inspection by the public. Violators of this statute are subject to criminal penalties.

To review other Q&A or to subscribe to the monthly Q&A, visit Ancel Glink's website.

"Social Media and the City" - New Article in Municipal Lawyer Magazine

2012-01-11T09:09:00.001-06:00

The International Municipal Lawyer's Association (IMLA) recently published an article titled "Social Media and the City - Current Issues Facing Municipalities" in the Municipal Lawyer, authored by Damien T. Shores, an attorney in the Texas Attorney General's office. The article raises many of the legal issues we have discussed on this blog concerning municipal use of social media. The author also provides practical recommendations for municipalities in their use and control of social media communications.

Records Retention.

The article discusses a municipality's legal obligations regarding record retention and recommends that municipalities establish a policy that treats social media content similar to e-mail messages since most jurisdictions have already enacted records retention policies for e-mails. For additional information, revisit our previous blog post on this issue.

Freedom of Information.

The article also advises municipalities to assume that all social media content is subject to Freedom of Information laws, even when content is posted on sites protected by passwords or that have restricted access.

Recognizing that communications can be forwarded to anyone (or everyone) with the press of a button, the author notes that content created on a password-protected, private computer or mobile device "is about as private as your least private friend." The author recommends that municipalities provide dedicated cell phones and establish official e-mail addresses to employees and officials so the municipality can maintain some control over these records.

One question that has come up frequently is whether content posted by a "friend" or "fan" is subject to public disclosure. The answer will often depend on the nature of the post (does it relate to the transaction of public business?) and whether the information is within the control or possession of the municipality. The author notes the difficulties that municipalities face in processing requests for disclosure of information that is not created or maintained by the municipality.

Open Meetings.

As we have discussed on this blog, social media can pose unique challenges to municipalities in ensuring compliance with open meetings laws. The author cautions municipal officials to avoid any electronic deliberations on public business, whether by e-mail or via a social networking site.

Importance of a Social Media Policy.

The author concludes with advice similar to what we have given on this blog - municipalities should draft and implement a social media policy that addresses the risks involved in this new media. For tips on what should go into a social media policy, revisit our posts on 9/26 and 9/27.

Post authored by Julie Tappendorf, Ancel Glink.

Webinar - The Most Important Land Use Developments in 2011 and What’s New for 2012

2012-01-10T09:18:00.000-06:00

On January 24, 2012, from noon to 1:00 p.m. CST (1:00 p.m. to 2:00 p.m. EST), the International Municipal Lawyers Association (IMLA) will host its lively annual review session of the important land use developments of 2011. Tune in to learn what happened in 2011 in the land use arena to help you in the year ahead.

Speakers include Julie Tappendorf (Municipal Minute author), Dwight Merriam, Dan Mandelker, Nancy Stroud, Carol Brown, and Stuart Meck.

For more information about this webinar and other upcoming webinars offered by IMLA, visit IMLA’s website. Or, you can download a copy of the registration form here.

Washington Supreme Court Rules State Failed to Fund Education

2012-01-06T16:46:00.000-06:00

In a major ruling issued on January 5th, the Washington Supreme Court ruled that the state legislature had failed to fulfill the state's constitutional mandate to amply fund education in McCleary et al. v. State of Washington.

The case began in 2007, when a statewide coalition of school districts, education organizations and community groups sued the state, arguing it had provided a clear definition of basic education yet failed to fully fund it, evidenced by local school districts’ growing reliance on levy dollars to supplement the state’s basic education funding. Washington is not the only state where school districts have to increasingly rely on local funding sources such as local property taxes to fund education.

In a 85 page opinion, Justice Debra Stephens wrote “[b]y the legislature’s own terms, it has not met its duty to make ample provision for ‘basic education'...This court cannot idly stand by as the legislature makes unfulfilled promises for reform.” The Supreme Court determined that the state constitution provides children a positive constitutional right to an amply funded education. "Education" is defined as the basic knowledge and skills needed to compete in today’s economy and meaningfully participate in this state’s democracy. The word “ample” provides a broad constitutional guideline meaning fully, sufficient, and considerably more than just adequate. The Court determined that "ample funding" for basic education must be accomplished by means of dependable and regular tax sources, which the state had not accomplished.

While acknowledging that the state had adopted education funding reforms in 2009 that would, if fully funded, address these deficiencies, the Court declared it would maintain jurisdiction to oversee timely implementation of those reforms and hold the state accountable to meet its constitutional duty.

Case Requiring City to Pay for Work Outside Scope of Contract Under Theory of Equitable Estoppel Goes to Illinois Supreme Court

2012-01-06T14:39:00.000-06:00

Last year, an Illinois Appellate Court held that the doctrine of equitable estoppel could be applied to require a municipality to pay a vendor for additional work outside of the contract even if that work was not authorized by the city council. Patrick Engineering, Inc. v. City of Naperville. The city filed an appeal of that decision with the Illinois Supreme Court, and the Illinois Municipal League (IML) recently filed an amicus brief supporting the city’s appeal.

A brief summary of the facts of the case is below:

The city had entered into a contract with a vendor through a competitive-bidding process. The contract required that any additional services outside of those specified in the scope of the contract had to be agreed to in writing between the parties. If the vendor did not receive confirmation that the additional services were approved by the city, then the vendor was not obligated to perform and would not be paid for those additional services. Nevertheless, the vendor performed what it claimed to be additional services, but did not get the written approval or confirmation as required by the contract. Nevertheless, the vendor submitted a substantial bill to the city for these additional services. The city declined to pay for the additional services, citing the contract terms. The vendor sued for breach of contract, claiming that it relied on statements by two employees to perform the additional work and the city should be required to pay for the additional work under a theory of equitable estoppel.

The trial court dismissed the case against the city, holding that equitable estoppel does not apply against a municipality unless the representation is made by the municipality itself or by an officer or employee who has explicit authority to act on behalf of the municipality. In this case, the city could not be held responsible for statements made by someone acting beyond the scope of his or her authority. The appellate court reversed, however, holding that the city was bound to the representations made by its employees, despite the fact that they had no express authority and the city council did not approve the additional work pursuant to the terms of the contract.

This case is of significant importance to Illinois municipalities because the Second District’s ruling modifies the long-standing rule that equitable estoppel will only be applied against a municipality where actions are induced by the municipality itself or a municipal official with actual, not apparent authority.

First Amendment Protects Protestors of Towing Ordinance

2012-01-04T08:00:00.000-06:00

The 7th Circuit Court of Appeals recently held that city officials were not entitled to qualified immunity on a First Amendment challenge to city actions against protestors of a towing ordinance in Surita v. Hyde, No. 09-1165 (7th Cir. December 22, 2011).

In 2002, the city amended its towing ordinance to allow police to seize and impound vehicles and to impose a $500 fine on persons driving without a valid license or proof of insurance. The towing ordinance generated a number of protests that it applied more harshly against minorities. While dealing with protestors, the mayor barred a citizen from speaking at a city council until he apologized to a city employee for a previous verbal confrontation. The police chief imposed a $1,500 fee for use of the city park to hold a protest rally regarding the ordinance, on the basis that more officers were needed for the rally because it was a protest as opposed to a rally in favor of a city ordinance. Out of 530 events in a five-year period in the city, only one other event was required to pay a permit fee.

Several individuals then sued the city, its mayor, and its police chief under §1983, alleging violations of their First Amendment rights of free speech, of assembly, and to petition government for redress of grievances. The district court had denied qualified immunity to defendants who appealed to the 7th Circuit.

The 7th Circuit first determined that audience time during city council meetings constituted a designated public forum and, as a result, the city had a limited ability to regulate expressive activity. The court determined that the ban on the plaintiff's speech at the city council meeting was a content-based exclusion without any compelling interest in violation of the First Amendment. As to the challenged permit fee, the court held that the fee was unconstitutional as a content-based regulation because it was determined on the basis of the content of the speech - in this case, because the event was a protest of the city's towing ordinance. The defendants were denied qualified immunity.

Sign Ordinances and the Upcoming Election

2012-01-03T08:00:00.000-06:00

As municipalities across Illinois prepare for the March 20, 2012 primary, it is a good time to revisit municipal sign ordinances and their effect on political signs. As followers @AncelGlinkLand already know, some municipalities are already reminding residents about existing sign regulations or even adopting new ordinances in advance of the upcoming election.

The renewed attention to political signs comes on the heels of the adoption of P.A. 96-0904 last January. This new law amended the zoning enabling statute to establish that “other than reasonable restrictions as to size, no home rule or non-home rule municipality may prohibit the display of outdoor political campaign signs on residential property during any period of time . . . .” 65 ILCS 5/11-13-1. This means that home rule and non-home rule municipalities are prohibited from enforcing time restrictions on the display of outdoor political signs on residential property. Many municipal sign ordinances had enacted time restrictions for election signs that require the removal of signs within a certain time period after an election and prohibit the placement of signs before a certain date before an election – those time restrictions are no longer enforceable. A municipality can, however, still regulate the size of election signs.

This sign law was not groundbreaking, however, and is generally considered to be consistent with the U.S. Supreme Court’s holding in City of Ladue v. Gilleo. In that case, the Supreme Court struck down a municipal sign ban that “almost completely foreclosed a venerable means of communication that is both unique and important” -- the display of political messages on residential property.

As the upcoming primary approaches, municipalities, candidates, and residents should review their municipality’s sign ordinance and the limits placed on these regulations by this fairly new sign law.

Post authored by Daniel J. Bolin.

OMA Electronic Training Program - UPDATE

2012-01-02T08:00:00.000-06:00

Last week, I reported on a few technological glitches to the Attorney General's OMA electronic training program that kept me from progressing past screen 14 of the training program. I am pleased to report that I have since completed the entire training. I'm not sure whether the AG fixed the glitches or my use of Safari rather than Internet Explorer as my web browser (a tip from a park district official) did the trick.

As an update to my previous post, I had to progress through 62 screens to get to the finish line and print out the training completion certificate. You should put aside at least 30 minutes to an hour to complete the entire program, although you can complete the program in parts. If you log off before finishing the program, you can choose to pick up where you left off or start the program from the beginning.

Happy training to those who must complete the program by year end.

Blog in Review 2011 – Twitter-Style

2011-12-31T11:35:00.000-06:00

In recognition of all who successfully populate the Twitterverse with succinct, to-the-point content, we have summarized the most popular Municipal Minute posts of 2011, in 140 characters or less:

AG releases OMA training program required for elected and appointed officials. 9/21, 12/27

Governments must post salaries of certain employees. 10/6

PAC issues binding opinions on FOIA requests for review in 2010 and 2011. 12/5, 12/6

Recent changes to FOIA favorable to governments. 9/3

Texts on personal cell phones are public records may be subject to release under FOIA. 11/17

Government officials should beware of disqualifying conflicts of interest. 9/14

How to avoid council wars and power plays. 9/19

Governments tweeting into trouble? 9/3

Guidelines for drafting social media policies. 9/26, 9/27

NLRB Report summarizes employee social media cases. 10/31

Is social media content a public record? 10/12

Chicago’s weed ordinance upheld on aesthetic grounds. 12/12

Just compensation determined at time of taking, not filing of condemnation action. 12/2

Court rules in favor of municipality in billboard case where removal tied to lease term. 11/16

DC assault weapon ban and handgun limits upheld but long gun limits struck down. 11/11

Happy New Year!

2011 Land Use Book Now Available

2011-12-28T08:58:00.001-06:00

The American Bar Association (State and Local Government Section) has published its annual compilation of land use-related articles and reports released in 2011. At the Cutting Edge 2011, edited by Dwight Merriam, is an essential resource for land use lawyers, planning professionals, and others interested in keeping up with current trends and issues affecting land use law.

The book covers a wide range of land use issues, including the following:

protecting citizen speech (anti-SLAPP);
local ethics rules and land use;
promoting green transportation choices;
land use regulation of cellular towers;
land banking of vacant property;
changes in beachfront property law;
comprehensive planning law;
form-based codes in New England;
the Religious Land Use and Institutionalized Persons Act (RLUIPA);
condemnation law; and
underutilization and the public use doctrine.

Three Ancel Glink attorneys contibuted to this year's publication. David Silverman authored an article on promoting green transportation. Brent Denzin and Julie Tappendorf co-authored an article on land banking of vacant property.

Visit ABA's website (publications page) to get yours today!

Open Meetings Electronic Training Program Now Available

2011-12-27T08:00:00.000-06:00

The OMA electronic training program for elected and appointed officials is now available on the Illinois Attorney General's website. As we reported previously, public officials currently in office have a year to complete their training (by January 1, 2013) and officials who take office after January 1, 2012, have 90 days after taking office to complete their training. (Practical tip 1: although the program appears to be available now, you might want to wait until after January 1st to complete the training -- see "glitch" discussion below).

You can access the OMA training program by clicking the "Electronic Training" link on the Attorney General's website. Then, you will need to register as an OMA Public Body Member, requiring you to create an account using the online registration form. This account will allow you to review your training records and print out your training certificate once you successfully complete the program (assuming you can get past screen 14 - more on that later). (Practical tip 2: When you choose your own password, make sure it is 8 characters in length (not 7, not 9, but exactly 8) and the password must contain a "special character." Not a number. Trust me, it doesn't work unless you follow the password instructions to the letter...I mean, special character).

After you create your account, you will be able to access the training program. There are 58 screens you have to progress through to complete the training. For obvious reasons, I won't share any of this information because if you are required by law to complete the training program, you need to find out for yourself!

One important tip about the training program - make sure you give yourself plenty of time to get through the training. The program froze up more than once, requiring me to log off and restart. Fortunately, you can choose to go back to where you left off when you logged off. Unfortunately, I never got past screen 14 because the program froze each time I answered the question. In all likelihood, these program glitches will be fixed by January 1, 2012, the effective date of the training requirement. Apparently, I was premature in trying to cross this one off the "to-do" list. I will, as my grandmother used to say, "hold my horses" and try again next week.

$1.5 Million Penalty for Clean Water Act Violations

2011-12-23T08:00:00.000-06:00

Today's story offers a lesson for municipalities and contractors: state agency approval may not shield activity from federal environmental laws.

The EPA and Department of Justice (DOJ) announced that Wright Brothers Construction Co. and the Georgia Department of Transportation (GDOT) have agreed to pay a $1.5 million penalty and spend more than $1.3 million to offset environmental damages to resolve alleged violations of the Clean Water Act (CWA). The civil penalty is one of the largest ever under the CWA provisions prohibiting the unauthorized discharge of dredged or fill material into waters of the United States.

The complaint alleges that between 2004 and 2007, Wright Brothers, with approval from GDOT, buried all or portions of seven primary trout streams in violation of the CWA. Wright Brothers was hired by GDOT to dispose of excess soil and rock generated during two GDOT highway expansion projects in northeast Georgia. The contracts between GDOT and Wright Brothers specifically required Wright Brothers to obtain written environmental clearance from GDOT prior to using any site as a fill site. GDOT approved sites that included streams considered to be waters of the United States. These actions resulted in the unauthorized disposal of more than one million cubic yards of excess rock and soil, impacting approximately 2,800 linear feet of stream.

Under the settlement, Wright Brothers and GDOT must perform injunctive relief measures, including purchasing 16,920 mitigation credits at an estimated cost of $1.35 million to offset the impacts to waters of the United States that cannot be restored. The credits must be purchased from mitigation banks servicing the area in which the violations occurred. A mitigation bank is a wetland, stream, or other aquatic resource area that has been set aside for the purpose of providing compensation for impacts to aquatic resources that occurred under a federal, state, or local permit.

Wright Brothers and GDOT will also remove piping and restore the bed and bank of a 150-foot stream channel that was impacted from the disposal activities. When complete, the restoration activities and injunctive relief measures will mitigate the 2,800 feet of stream impacted by the CWA violations.

The settlement is subject to a 30-day comment period and final court approval.

For more information on the settlement, visit the EPA's website.

Post authored by Brent Denzin.

MWRD Agrees to $50 Million in Green Infrastructure Projects in Settlement with EPA

2011-12-22T08:00:00.000-06:00

The EPA announced a settlement with the Metropolitan Water Reclamation District (MWRD) to address the problem of raw sewage being released into Chicago area waterways during rain storms. MWRD has also agreed to pay a civil penalty of $675,000 and make an enormous investment in storm water/flood abatement projects.

First, the settlement requires MWRD to implement a $25 million to $50 million green infrastructure program that will reduce storm water runoff in communities. Among other green infrastructure projects, MWRD agreed to distribute rain barrels and develop projects to build green roofs, install rain gardens, or use pervious paving materials in urban neighborhoods.

Second, the settlement includes a requirement to complete the Deep Tunnel—an enormous public works project designed to detail floodwaters, in a series of stages in 2015, 2017, and 2029.

Third, the settlement requires MWRD to control trash and debris in overflows using skimmer boats to remove debris from the water so it can be collected and properly managed, making waterways cleaner and healthier.

For more information, check out the DOJ's website.

Post authored by Brent Denzin.

Reduce Costs of Environmental Compliance and Flood Mitigation

2011-12-21T08:00:00.000-06:00

On February 8, 2012, the Metro West Council of Government will present a seminar titled "Eliminating Waste, Saving Money: Strategic Steps to Reduce Costs of Environmental Compliance and Mitigate Flood Impacts." The seminar will focus on quick and easy steps to protect communities from environmental liability and reduce impacts of flooding—while saving money in the process.

Ancel Glink Attorney Brent Denzin will address various ways communities can streamline their codes and ordinances. Brent will also provide tips for compliance practices. Eric Neagu of Weaver Boos Consultants will discuss ways communities can reduce costs by incorporating green infrastructure and reducing flooding and storm water pollution.

The seminar will be held at the Sugar Grove Fire Protection District building located at 25 Municipal Drive, Sugar Grove, Illinois, from 9:00 a.m. to 10:30 a.m.

Please RSVP by Friday, February 3rd via e-mail or fax to:

E-mail: kburgess@metrowestcog.org
Fax: 630-256-3169

New Laws Impacting Municipalities Take Effect January 2012

2011-12-20T08:00:00.000-06:00

With only two weeks left in 2011, and many lucky folks heading out of the office for the rest of the year, we thought it would be helpful to provide a brief summary of some of the new laws affecting municipalities that take effect on January 1, 2012.

In no particular order, here they are:

Public Officials Must Complete Electronic Open Meetings Act Training.

As we reported on September 21, 2011, P.A. 97-0504 added a new training requirement for all elected and appointed public officials. Officials holding office on January 1, 2012, have one year to complete the training. Officials taking office after January 1, 2012 will have 90 days to complete the training. Officials who have already completed an OMA training program do not have to take it again.

Municipalities Must Post Employee Salary Information.

As we reported on October 6, 2011, P.A. 97-0609 amended the Illinois Open Meetings requiring IMRF employers to post the total compensation package for the following employees:

· each employee receiving a total compensation package that exceeds $75,000 a year within six days after approving its budget.

· each employee with a total compensation package equal to or in excess of $150,000, at least six days before an IMRF employer approves the package.

Under the new law, “total compensation package” is defined as salary, employer-paid health insurance premiums, housing allowance, vehicle allowance, clothing allowance, bonuses, loans, vacation days which will be earned in that year and sick days which will be earned in that year.

If an employer maintains a website, it can post the information on its website or post the information available at its main office. However, if an employer selects this option, it must also post directions on its website on how to access the information. If the employer does not have a website, it must post the information at its main office.

Contractors Subject to New Record-Keeping Obligations under Prevailing Wage Act.

P.A. 97-0571 amends the Prevailing Wage Act to require contractors and subcontractors to keep records for at least 3 years from the date of the last payment on a contract or subcontract. The new law also requires contractors to file a monthly certified payroll signed by the contractor or agent certifying that he or she has examined the payroll records. Contractors now have 3 days (instead of 7) to make records available for inspection by the public agency. For certain violations, contractors can be barred from public works projects for a four year period.

Municipalities Can Recover Overpayment of Wages and Benefits.

P.A. 97-0120 amends the Illinois Wage Payment and Collection Act to authorize municipalities to make deductions from employee wages or final compensation for overpayments that result from a typographical or mathematical error made by the municipality or to collect a debt owed to a municipality. The amount of the deduction cannot exceed 15% of the net amount of the payment. Prior to making the deduction, the municipality must certify that (i) the employee has received notice of a wage deduction and opportunity for a hearing. (ii) the employee has been afforded a hearing by the municipality to dispute the debt.

Back Seat Passengers Now Have to Buckle Up.

P.A. 97-0016 requires all back seat passengers to wear a seatbelt, but exempts passengers of emergency vehicles and taxi cabs.

In closing, I have the following words of wisdom for 2012:

Buckle Up…

The Chicago Bears are not going to the playoffs.

But, there's always next year...

Can a Taxpayer Sue for Illegal Municipal Expenditures Without Showing Pecuniary Harm?

2011-12-16T14:06:00.002-06:00

The answer is....

It depends (in this case, on the Circuit in which the taxpayer resides)

In Highway J Citizens Group v. Village of Ritchfield, a citizens group challenged an annexation by the Village of Ritchfield, Wisconsin of certain property located in the Town of Polk. Plaintiffs claimed that the annexation did not meet the statutory contiguity requirement and resembled a "balloon on a string," contrary to state annexation laws. The complaint alleged that the annexation caused damages to members of the citizens group who resided in the Town of Polk due to lost property tax revenue and to members of the group who reside in the Village of Ritchfield (the annexing municipality) because the Village was required to make substantial annual payments to the Town as a result of the annexation.

The trial court dismissed the case, finding that plaintiffs lacked standing to challenge the annexation. The appellate court affirmed on the same basis. The appellate court held that a taxpayer cannot "simply challenge an ordinance merely because he or she disagrees with the legislative body." Instead, a taxpayer must have "sustained, or will sustain, some pecuniary loss before he or she has standing." Because the members of the citizens' group were not owners of property within the annexed territory, they had no direct, legal interest in the annexation. According to the court, plaintiffs' allegations of pecuniary harm were no different than the harm suffered by any other taxpayer in the Town of Polk or Village of Ritchfield.

So, why do we care about an unpublished decision out of Wisconsin? Well, just last month, plaintiffs filed a petition for certiorari to the United States Supreme Court. In their brief, plaintiffs argue that the Supreme Court and five of the Circuit Courts of Appeal (First, Second, Sixth, Ninth, and D.C.) do not require actual pecuniary harm to establish municipal taxpayer standing. According to plaintiffs, the Third, Fourth, and Seventh Circuits do require a showing of actual pecuniary harm. It is this alleged Circuit split that forms the basis for plaintiffs' writ of cert to the Supreme Court.

While this particular case focuses on the narrow issue of whether a municipal taxpayer has standing to challenge an annexation, the question presented to the Supreme Court could have broader application in taxpayer challenges to any municipal expenditure.

It remains to be seen whether the Supreme Court will grant cert and answer the plaintiffs' question: Does a taxpayer have standing to sue for illegal municipal expenditures without having to show pecuniary harm?

Supreme Court to Hear Argument in Environmental Dispute (Sackett v. EPA)

2011-12-15T08:00:00.000-06:00

In January, the U.S. Supreme Court will hear oral argument in a case involving governmental enforcement of federal environmental laws against private property owners. In Sackett v. EPA, a property owner challenged the EPA’s use of so-called “administrative compliance orders.” The EPA uses these administrative orders to allege that a property owner is in violation of an environmental law provision and to demand that the owner bring the property into compliance. The Supreme Court will decide whether a property owner can immediately go to court to challenge the EPA's order or whether the owner must wait to challenge the order until after the EPA sues the property owner in a civil or criminal action.

The case involved a challenge to an EPA compliance order that asserted that the Sacketts had violated the Clean Water Act when they filled in a wetland on their property without a permit. The compliance order required the Sacketts to remove the fill material and restore the property to its original condition. The owners requested a hearing before the EPA, which was denied. The Sacketts then filed a lawsuit with the district court claiming that the compliance order was arbitrary and capricious, violated their due process rights, and was unconstitutionally vague. The district court dismissed the Sacketts' case. On appeal, the Ninth Circuit affirmed, concluding that the Sacketts were not entitled to pre-enforcement judicial review of the EPA compliance order.

The question presented to the Supreme Court is deceptively simple - Is a property owner entitled to judicial review of an EPA administrative compliance order? The issues surrounding that question, however, are far from simple and have kept quite a few environmental advocates and opponents (and their lawyers) busy. In fact, 14 amici briefs were filed in support of the Sacketts, including briefs filed by the National Association of Home Builders and the American Civil Rights Union, among others. A common theme among these briefs is the assertion of a conflict between these environmental laws and the Fifth Amendment right that no person be deprived of property without due process of law.

Those of us who work in the land use field are very interested in seeing how the Court will resolve the alleged conflict between environmental protection and property rights.

We will keep you posted on this case. For more information about this case, visit Scotusblog.

Ancel Glink's Parks Group is Now Tweeting

2011-12-13T08:00:00.000-06:00

Ancel Glink's parks practice group just joined Twitter. (Try saying that 3 times in a row). For recent developments and news about park districts, park departments, parks and recreation, and anything and everything parks, follow us at:

@AncelGlinkParks

And don't forget to follow Ancel Glink's land use and economic development practice group at:

@AncelGlinkLand

Never more than 140 characters.

Chicago’s Weed Ordinance Found Constitutional

2011-12-12T08:00:00.000-06:00

Like most other municipalities throughout the state and across the country, the City of Chicago has in place an ordinance that regulates the height of weeds on private property. The City’s weed ordinance was recently the subject of a constitutional challenge by a property owner who was cited, and found to have violated, the ordinance. The appellate court upheld both the weed ordinance and the City’s administrative proceedings in Schacter v. City of Chicago.

In this case, the property owner had asserted a number of procedural and substantive challenges to the administrative proceedings, as well as constitutional challenges to the weed ordinance. Specifically, the owner alleged that the weed ordinance: (1) was vague and subjective; (2) invited arbitrary enforcement; (3) had been arbitrarily enforced; (4) failed the "strict scrutiny" test because it limited the right to property in an overly broad manner; and (5) bore no rational relationship to any legitimate or intended public purpose.

In addressing the owner’s constitutional challenge to the weed ordinance, the appellate court first rejected the property owner’s claim that the court should apply strict scrutiny in reviewing this ordinance, finding no “fundamental constitutional right” at issue. Instead, the court determined that the City's prohibition on properties containing weeds averaging over 10-inches tall was rationally related to a legitimate interest, even if that interest was solely aesthetics. In supporting its decision, the appellate court cited the U.S. Supreme Court’s decision in Berman v. Parker¸ where the Supreme Court long ago recognized that the:

concept of the public welfare is broad and inclusive. The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean…

Municipalities have traditionally justified and supported their “weed ordinances” with recitals that emphasize the health and safety benefits to the regulation (control of rodents, prevention of disease, etc). Based on this decision, aesthetics alone may provide sufficient justification and support for a municipality’s property maintenance regulations.

Post authored by Julie Tappendorf, Ancel Glink.

Ancel Glink's Winter Issue of "In the Zone" Just Released (Controversial Land Uses)

2011-12-07T15:29:00.001-06:00

Check out the winter issue of Ancel Glink's e-newsletter, In the Zone: Current Trends in Land Use Law, for updates on land use and economic development topics. This edition focuses on "controversial land uses" including municipal regulation of landfills, billboards, cellular facilities, and agricultural uses.

Here are a few teasers of articles you can find in this issue:

Municipal Regulation of Billboards, Landfills, and Horses Upheld by Illinois Courts

This article compares three recent Illinois cases that considered challenges to municipal regulation of various controversial land uses, including billboards, landfills, and agricultural uses.

In our first case, the court upheld a municipal zoning decision resulting in the removal of a billboard - a common eyesore that many local governments desire to eliminate.

An even more onerous land use - a landfill - is the subject of our second case. The court in this case considers what constitutes a fundamentally fair landfill siting hearing, a procedural due process concept that can also be applied to traditional zoning hearings.

Our third case reminds municipalities of the importance of carefully defining controversial land uses in local zoning ordinances - here, agricultural uses and the boarding of horses.

Cellular Antennas, Shot Clocks and Zoning: Two Years Later

We also discuss another controversial land use that might create the biggest paradox in a community - the erection of cellular towers; no one wants one nearby, but no one is willing to put down their phone. This article summarizes how courts have reviewed cellular zoning decisions in light of the FCC's latest administrative order adopting "shot clock regulations" to place time limits on a municipality's review and consideration of a cellular tower application.

Tax Relief for CME, CBOE, Sears Meets Stunning Defeat in Illinois House

Perhaps, the biggest thing to happen during the recent veto session of the Illinois General Assembly is what did not happen, as a tax package designed to keep several high-profile firms in Illinois earned only eight votes in the Illinois House, after passing out of the Senate with a veto-proof majority. CME, CBOE and Sears are each seeking millions of dollars in tax relief before a tax increase kicks in next July. Observers expect that this will not be the end of the tax relief effort, and the legislature may take action on a new plan as early as Monday, December 12th.

Part 2: PAC Binding Opinions of 2010 in Review - FOIA

2011-12-06T07:53:00.000-06:00

Yesterday, I reported on the six binding opinions issued by the Illinois Attorney General (PAC) in 2011. Today, I have summarized the four binding opinions issued in 2010.

Spoiler alert - just as in 2011, the PAC ruled against the public body in each of the 2010 opinions summarized below.

PAC Opinion 10-001 (copies)

An individual filed a FOIA request seeking a copy of a public body's water meter card showing reading for a six month period. The public body responded that the requestor could inspect a copy of the records, but the public body was not obligated to provide a copy of the records. On appeal, the PAC determined that the public body violated FOIA by not furnishing copies of the records as required by Section 3(b) of FOIA.

PAC Opinion 10-002 (fees for copies)
An individual filed a FOIA request for certified payroll records and contracts with various contractors. The public body charged a fee for the copies that were provided to the requestor as well as a fee for duplicate copies that were retained by the public body. The individual appealed the duplicate fee charges to the PAC. The PAC determined that although FOIA requires a public body to retain a copy of the original request and response, the public body is not entitled to pass on duplicate copy costs to the requestor. In short, the PAC determined that the public body violated FOIA.

PAC Opinion 10-003 (autopsy reports)
Reporters filed a FOIA request for autopsy records of Christopher Kelly (fundraiser for former Governor Blagojevich) and Michael Scott (President of the Chicago Board of Education), both suicide victims. The requested documents included photographs, toxicology reports, police reports, and various other records. The public body requested pre-authorization from the PAC to deny the request based on the "personal privacy" exemption, arguing that the privacy interests of the victims' families outweighed the public's interest in the release of these records. The PAC denied the pre-authorization request except as it related to post-mortem photographs, ordered the public body to release the records, and determined that the public body violated FOIA by not releasing the records.

PAC Opinion 10-004 (settlement agreement)
A reporter filed a FOIA request for a copy of a settlement agreement in an employment discrimination case. The public body denied the request, stating that it did not have a copy of the settlement agreement because the lawsuit was defended by the public body's insurance carrier. The PAC determined that Section 2.02 of FOIA expressly states that settlement agreements are public records subject to release to the public and that the public body violated FOIA by not providing a copy of the settlement agreement.

PAC Binding Opinions of 2011 in Review - FOIA

2011-12-05T08:30:00.000-06:00

Under state law, the Public Access Counselor of the Office of the Illinois Attorney General, is authorized to issue binding opinions in response to requests for review submitted by members of the public. The PAC was granted this authority in 2010 when the General Assembly amended both the OMA and FOIA. A request for review can be filed when a Freedom of Information Act request has been denied by a public body or when a public body has allegedly violated the Open Meetings Act. According to a story published by the Chicago Tribune today, most of the complaints filed with the PAC involve FOIA requests rather than open meetings. For example, last year, the PAC handled more than 5,200 new matters regarding public access, but only about 200 were for allegations of open meetings violations.

According to the AG's website, the PAC has issued just 10 binding opinions in the two years since the PAC was created -- four in 2010 and six in 2011 and all involving FOIA appeals. I have summarized the 2011 opinions in this post and will provide a summary of the 2010 opinions in a future blog.

Spoiler alert - the PAC ruled against the public body in each of the six opinions from 2011 that are summarized below and, in all but one of the opinions, the requestor appealing the FOIA denial was a reporter.

PAC Opinion 11-001 (arrest records)

An individual filed a FOIA request seeking arrest records and gunshot residue test report. The request was denied based on the criminal history record exemption under Section 2.15 and because the public body did not possess the gunshot residue report. On appeal, the PAC first determined that since the gunshot residue report was not in the public body 's possession, the denial was permissible. However, the PAC also determined that the arrest records were not exempt under FOIA and, therefore, the public body violated FOIA by improperly denying the records.

PAC Opinion 11-002 (police officer assignments)

A reporter filed a FOIA request seeking records containing the number of sworn officers assigned to each district. The public body denied the request under Section 7(1)(v), claiming that the information related to the mobilization and deployment of police personnel. The PAC determined that the records were not exempt because the public body failed to demonstrate how the number of officers assigned to a district could reasonably be expected to jeopardize the effectiveness of security measures or safety of the officers or public. In short, the PAC found that the public body violated FOIA.

PAC Opinion 11-003 (unduly burdensome)

A reporter filed a FOIA request seeking various records relating to a university’s presidential search. The university sought pre-authorizations to withhold certain information under Section 7(1)(c) as personal privacy information, which was partially denied by the PAC. The university then partially denied the FOIA request. A subsequent request was filed, seeking the documents previously denied and the university denied the subsequent request, asserting that providing the requested documents would be unduly burdensome and that the request was a “repeated request” from the same person for the same records. The PAC found that the university violated FOIA because the public body did not either (1) previously disclose the requested records or (2) property deny the previous request.

PAC Opinion 11-004 (settlement agreements)

A reporter filed a FOIA request seeking a copy of a settlement agreement between a public body and a former employee. The public body denied the request under Section 7(1)(s) which permits a public body to withhold records relating to insurance or self-insurance claims and loss or risk management information because the settlement amount was paid by the public body’s insurance carrier. The PAC determined that the settlement agreement was not exempt under FOIA because (1) FOIA was recently amended to expressly provide that settlement agreements are public records subject to release and (2) Section 7(1)(s) only protects proprietary information regarding policies, procedures, and practices of the self insurance or risk management pool or association, and not information relating to individual claims or losses, including the amount to settle a claim. In short, the PAC found that the public body violated FOIA.

PAC Opinion 11-005 (workers compensation records)

A reporter filed a FOIA request seeking 50 individual reports containing “nerve conduction velocity” results conducted as part of workers compensation claims involving employees at a particular correctional center. The requestor subsequently clarified his request to the public body that personal identifying information could be redacted. The public body denied the request, claiming that the tests were risk management records protected by Section 7(1)(s). Based on similar analysis as contained in PAC Opinion 11-004, the PAC found that the records were not "proprietary" insurance or risk management documents and that the public body violated FOIA.

PAC Opinion 11-006 (electronic records on private devices)

As I discussed in more detail in a separate blog post on November 17, 2011, the PAC issued a binding opinion regarding the denial of reporter's FOIA request for text messages, emails, and other electronic records on public officials’ personal cell phones and other devices. The public body had argued that the records were not “public records” subject to release, but the PAC disagreed and determined that the public body violated FOIA.

Just Compensation Determined at Time of Taking, Not Filing of Condemnation Action

2011-12-02T14:59:00.001-06:00

On December 1, 2011, the Illinois Supreme Court decided Forest Preserve of DuPage County v. First National Bank of Franklin Park, 2011 IL 110759 (2011). The case involved a challenge to a condemnation action filed by the District to take 204 acres of land consisting of an existing public golf course and undeveloped land. The landowners challenged the condemnation on a number of grounds, including the jury’s determination of value as of the date of the filing of the action. In this decision, the Supreme Court determined that the taking occurs when the government (1) deposits the amount of compensation that has been ascertained and awarded and (2) acquires title and the right to possess the property and not at the time of filing of the action.

This case began with the filing of the condemnation action by the District in 1999. The next seven years were spent sorting out the legal rights and responsibilities between the landowners. No final action could be taken on the condemnation action until the landowners’ legal issues were resolved. Finally, in 2007, a jury trial on the condemnation action was held where it was determined that the fair market value of the property was approximately $11 million, a valuation only slightly above what the District offered the landowners in 1999. The jury based the property valuation on the value as of the filing date in 1999. The landowners challenged that valuation, contending that the property had increased in value from 1999 to 2007 to be more than twice that amount or $25.5 million. The appellate court vacated the jury verdict on the issue of fair market value, and sent the case back to the trial court to determine whether the jury verdict awarded just compensation to the landowners as required under the state and federal constitutions. On appeal, the Supreme Court affirmed the appellate court.

The dispute as to fair market valuation arose because provisions of Illinois’ Eminent Domain Act suggest that the date of valuation is the date on which the condemnation action is filed. In vacating the jury’s valuation, the Illinois Supreme Court relied on the U.S. Supreme Court’s decision in Kirby Forest Industries, Inc. v. United States, 467 U.S. 1 (1984), which held that the constitutional fifth amendment right to just compensation entitles a landowner to fair market value on the date of taking, which it defined as payment and the passing of title. The Illinois Supreme Court explained that establishing a taking at this point in time would (1) enable Illinois trial courts to hold post-trial Kirby hearings to ensure that just compensation is properly awarded to landowners and (2) align Illinois eminent domain law with federal eminent domain law, ensuring its constitutionality.

Post authored by David Silverman.

PSEBA Benefits Begin on the Date of Termination of Employment, Not the Date of Injury

2011-12-02T08:00:00.000-06:00

On December 1, 2011, the Illinois Supreme Court held that benefits under the Public Safety Employees Benefits Act (PSEBA) begin on the date of termination of employment, reversing an appellate court’s decision that PSEBA benefits attach on the date of the injury.

The case, Nowak v. City of Country Club Hills, involved a police officer who was injured in the line-of-duty. Three years after his injury, he was awarded a line-of-duty disability. The officer claimed that he was entitled to reimbursement of the portion of his health insurance premiums that he paid while still employed during the three year period from his injury to the disability determination. The trial court held that PSEBA attaches on the date of the determination of the disability. The appellate court reversed, holding that benefits kick in on the date of the injury.

The Illinois Supreme Court reversed the appellate court’s decision, agreeing with the trial court that PSEBA benefits do not begin until the officer’s employment was terminated. The Court first examined the language of the statute, finding that it was silent on the issue of when the employer’s obligation attaches. Because the statute could be reasonably interpreted in one of two ways (as the trial court and appellate court established in their differing opinions) the Supreme Court found the language ambiguous and turned to the legislative history for guidance. Relying on statements made by legislators in debating the bill, as well as a public policy analysis, the Court determined that the legislature intended PSEBA to be a post-employment benefit, meaning that PSEBA benefits will attach on the date that it is determined that an officer’s injury is “catastrophic” and therefore eligible for a line-of-duty disability pension, not on the date of injury.

The relevant portion of the Act is set out below:

An employer who employs a full-time law enforcement…officer…who…suffers a catastrophic injury or is killed in the line of duty shall pay the entire premium of the employer’s health insurance plan for the injured employee, the injured employee’s spouse, and for each dependent child of the injured employee until the child reaches the age of majority…820 ILCS 320/10(a).

Ninth Circuit Will Rehear County Gun Show Ban Case

2011-12-01T08:30:00.000-06:00

On November 28, 2011, the U.S. Court of Appeals for the Ninth Circuit ruled that it would rehear en banc its May 2, 2011 decision in Nordyke v. King. That case involved a challenge to a municipal gun show ordinance. The plaintiffs had promoted gun shows at the Alameda County fairgrounds from 1991 until the county enacted the ordinance in 1999 after a shooting. Plaintiffs initially challenged the ordinance based on First Amendment and Equal Protection grounds, which were rejected by the U.S. District Court. The plaintiffs appealed to the Ninth Circuit after the District Court refused to allow them to add a Second Amendment claim in an amended complaint.

In the May decision, a three-judge panel of the Ninth Circuit affirmed dismissal of the plaintiffs’ First Amendment claim, holding that it was not convinced that Alameda had adopted the law to limit free expression among "gun culture" members or that the sale of guns at shows was a form of advocacy or commercial speech protected by the First Amendment. The panel had also ruled in favor of the County on plaintiffs’ Equal Protection Clause argument.

However, the panel ruled in favor of the plaintiffs on their Second Amendment argument, holding that they should be allowed to amend their complaint to add a Second Amendment claim because of recent decisions by the U.S. Supreme Court in the six years since they had initially raised their claim. Specifically, the panel stated that: “Since then, all of the Supreme Court’s modern Second Amendment case law has been created. See McDonald v. Chicago, 130 S. Ct. 3020 (2010); District of Columbia v. Heller, 554 U.S. 570 (2008).” The panel then remanded the case to the District Court.

Based on this ruling, the full Ninth Circuit will have a chance to review Alameda County’s ordinance based on the analysis contained in McDonald and Heller.

Identity of Anonymous Web Poster Protected by Illinois Court

2011-11-30T08:30:00.000-06:00

As people increasingly turn to the internet for their news, online message boards and other forums are becoming a popular way for individuals to weigh in on current events and news stories. Many users of these online message boards and forums post their comments and opinions using an anonymous user name. Anyone familiar with these sites can attest to the diversity of opinions and viewpoints expressed by these anonymous posters, which can often be critical of a particular individual or topic and, in some cases, personally offensive. The law is clear that anonymous speech is constitutionally protected. However, those protections do not extend to defamatory statements, raising the following questions: (1) when is a particular comment defamatory such that it is not constitutionally protected and (2) can an individual discover the identity of an anonymous poster?

An Illinois appellate court addressed both of these questions recently in Stone v. Paddock Publications, Inc., 2011 IL. App (1^st) 093386. In that case, a village board trustee filed a defamation lawsuit relating to anonymous comments made against the trustee’s son. An example of one of the anonymous poster’s comments is as follows: “Seems like you are very willing to invite a man you only know from the internet over to your house – have you done it before, or do they usually invite you to their house?” Other challenged comments are set out in the decision. As part of her lawsuit against the anonymous poster, the trustee filed a petition seeking discovery of the poster’s identity. The trial court granted the trustee’s petition, but the appellate court reversed the trial court’s decision.

In reaching its decision, the appellate court created a new test for determining whether a plaintiff can pierce the veil of anonymity in online postings. That test requires that a plaintiff establish that her complaint states a valid, legal claim for defamation. If the plaintiff meets this initial test, then the court will order that the identity of an anonymous poster be revealed for use in the defamation lawsuit.

In applying the test to the facts of this case, the appellate court found that the trustee was not entitled to the information because she could not meet her burden to show that the statements against her son were defamatory. Specifically, the court determined that no reasonable person would find that the statements by the anonymous poster “stated a fact.” In addition, the court found that the statements could be subject to an innocent construction. In ruling that the plaintiff was not entitled to release of the poster’s identity, the appellate court stated as follows:

While the law is clear that there is no right to defame another citizen, we cannot condone the inevitable fishing expeditions that would ensue were the trial court’s order to be upheld. Encouraging those easily offended by online commentary to sue to find the name of their ‘tormenters’ would surely lead to unnecessary litigation and would also have a chilling effect on the many citizens who choose to post anonymously on the countless comment boards for newspapers, magazines, websites and other information portals. Putting publishers and website hosts in the position of being a ‘cyber-nanny’ is a noxious concept that offends our country’s long history of protecting anonymous speech.

While the appellate court refused to order the disclosure of the anonymous poster’s identity in this case, this decision certainly leaves the door open for another plaintiff under a different set of facts to obtain that information. Online posters should be aware that their right to anonymous speech is not unlimited.

House Vote on Pension Reform Bill Expected Today

2011-11-29T09:11:00.001-06:00

The House is expected to vote today on Senate Amendments 1 and 2 to House Bill 3813. The bill, as amended by the Senate, is intended to close certain loopholes in the Illinois Pension Code to address recent situations that have allowed union leaders to collect both a government and union pension for the same service time or to base their government pension on their higher salary earned while employed with a labor union. The bill will affect police officers, firefighters, state university employees and downstate teachers, among other government employees. The bill also requires reporting of fraudulent activity to be reported to the applicable pension fund or state's attorney and changes the method for calculating "final average salary" for certain Chicago employees.

UPDATE 11/29/11 - House Bill 3813 passes both houses and is sent to the Governor.

Deadline Approaching to Adopt Ordinance for a Referendum on Electric Aggregation

2011-11-28T07:00:00.000-06:00

In order to place a referendum question on the issue of electric aggregation on the March 20, 2012 ballot, a municipality must pass an ordinance initiating the question on or before January 3, 2012. For those municipalities that plan to cancel their second meeting in December, an ordinance should be placed on the agenda for action at their first meeting in December in order to meet the January 3, 2012 deadline.

Last month, I reported on the Illinois statute that authorizes municipalities to enter into contracts with electricity suppliers on behalf of residents and small commercial retail customers within their jurisdiction. The contracts provide for the bulk purchase of electricity from a supplier and then the sale of that electricity at fixed rates in municipalities. By aggregating the buying power of a large number of small customers, a municipality should be able to obtain a better rate for its residents than if residents shop for electricity on an individual basis.

There are two ways to initiate the process. The second type, the most popular option, is an "opt-out" program that automatically includes each residential unit and certain small commercial retail customers in the pool unless the customer affirmatively decides not to participate. If the residents approve the referendum, the municipality must then develop a plan of operation and governance for the aggregation program and hold at least two public hearings on the plan. An RFP must also be prepared and issued for companies to submit proposals to provide electric services to the municipality. Thereafter, the Illinois Power Agency Act mandates that the aggregated electricity supplier must notify customers of the rates, conditions of enrollment, and the option and method for customers to "opt-out" of the aggregation program.

UPDATE 2/6/2012: The deadline for placing a referendum question on electric aggregation on the March 20th primary ballot has passed. A number of Illinois municipalities met the deadline, so quite a few people will be voting on this issue in March. For municipalities who have not yet put the electric aggregation referendum on the ballot, there is still plenty of time to have the question put on the ballot for the general election in November.

Turkeys and Land Use?

2011-11-23T07:00:00.000-06:00

Just last week, the board of county commissioners of Gibson County, Indiana reviewed a draft of a proposed subdivision control ordinance. Apparently, the county currently has no zoning or subdivision regulations in place as land use regulation has been a controversial topic in the county for decades.

The new subdivision ordinance would establish regulations for future minor and major subdivisions, including street, lot, and utility standards. The proposed subdivision ordinance does not, however, regulate turkeys. That became clear at a recent county commissioner meeting when a homeowner asked if the new ordinance would prevent a turkey farm from locating near her home. The county attorney responded that the subdivision ordinance does not regulate or control the use of land, including turkey farming, concluding that: “We do not have any type of zoning.”

Besides providing a very simple illustration of the regulatory distinction between subdivision and zoning ordinances, this story is the only land use issue that is in any way relevant (yes, it's a stretch) to the upcoming holiday.

Happy Thanksgiving!

Hearing on Landfill Petition Not "Fundamentally Unfair"

2011-11-21T15:48:00.000-06:00

This case involved a decision by the Yorkville city council to deny a siting application to construct a landfill in the city. The applicant, Fox Moraine, LLC, had challenged the denial with the Illinois Pollution Control Board (IPCB) on various grounds, including that the hearing was "fundamentally unfair" and the decision was inconsisent with the siting criteria required by law. The IPCB ruled in favor of the city, and Fox Moraine appealed to the Second District Court of Appeals.

In considering the merits of Fox Moraine's appeal, the appellate court determined that although there were some questionable activities by certain city council members, the proceedings as a whole were not “fundamentally unfair.” As a result, the appellate court upheld the IPCB’s decision affirming the City’s denial of the siting application.

While this case required the appellate court to consider criteria and procedures unique to landfill siting applications, the analysis used by the court to determine whether the proceedings were “fundamentally fair” can be instructive to municipalities in conducting other public hearings, such as those required for zoning applications. For example, the case involved claims of bias on the part of the city council members and allegations that the members considered information outside the public hearing record - issues that could certainly find their way into a traditional zoning hearing.

To show bias, a petitioner must show whether a disinterested observer might conclude that the siting authority or its members had prejudged the facts or law of the case. Here, the court determined that Fox Moraine had forfeited its claim of bias of certain council members by failing to raise the issue during the hearing, finding that the law is clear that a claim of disqualifying bias must be raised at the original proceeding. The court also rejected Fox Moraine’s claim that the mayor was biased because she has no vote in the matter and there was nothing in the record to support Fox Moraine’s bias claims. The court further rejected Fox Moraine’s claim that the council rushed the final vote because fundamental fairness requires only that the record be made available for review by the entire council prior to voting and that the council’s decision be in writing and contain the reasons for the decision. The court also found no evidence in the record to support Fox Moraine’s claim that one council member conducted her own research outside the record.

As to Fox Maine's allegations of improper ex parte communications between city council members and the public, the appellate court recognized that these communications are inevitable because the members are local elected officials and not judges. A reviewing court will not reverse a decision because a city council member has received an improper ex parte communication without evidence of prejudice to the petitioner.

The appellate court did, however, find certain actions by city council members to be questionable, including one council member’s creation of an anti-landfill website. The court determined that this council member appeared to have pre-judged the application and may have failed to review the application based on the statutory criteria. Nevertheless, the court determined that this was harmless error because even if the council member had been disqualified for bias, that would have left a majority of the council members voting against the application.

The appellate court also rejected the city’s argument that a memorandum from its attorney was privileged, finding that the privilege had been waived by council members when they referenced the memorandum during the hearings. Nonetheless, the court found that consideration of this memorandum by city council members without making it part of the record was harmless error as there was no prejudice to Fox Moraine.

Cell Towers, Shot Clocks, and Zoning: 2 Years Later

2011-11-21T07:00:00.000-06:00

Most municipalitiesunderstand that cellular facilities are necessary to serve the needs ofresidents who increasingly rely on their cell phones. The need to site antennafacilities in a particular community can, however, conflict with amunicipality’s desire to preserve and protect property values and the aestheticcharacter of a community. The Telecommunications Act of 1996 was intended tostrike a balance between respect for local land use control and promotion ofcompetitive telecommunication services by establishing certain procedural andsubstantive regulations for local land use decisions on cellular facilities.

Two years ago, the FCCissued a ruling that clarified certain provisions in the Act. The rulingaddressed three principle issues: (1) the time-frame for local zoning authorities toact on cellular zoning applications; (2) the right of cellularservice providers to non-discriminatory treatment; and (3) whether ordinancesrequiring all cellular zoning proposals to apply for a variance are per se unreasonable.

One of the most significantissues addressed in the ruling was the establishment of a “shot clock” for amunicipality’s evaluation and decision on a zoning application. The rationalebehind the new time limits was that language in the Act requiring localgovernments to “act on any request…within a reasonable period of time,” was toovague. A local zoning authority has 90 days (co-locations) or 150 days (allother applications) to make a final, written decision on a zoning application fora cellular facility. Once a zoning application is deemed complete, the shotclock begins to run. A municipality can have an additional 30 days to requestadditional information for the application, which tolls the clock. If amunicipality fails to act within the time frames, there is a rebuttablepresumption that the municipality has acted, or failed to act, unreasonably andthe cellular provider can bring suit.

Cases in the past two years have considered a variety of challenges by cellular providers, including claims of shot clock violations and discrimination and bias on the part of municipal officials. Based on these cases, there are a few tips that municipalities should consider in processing, reviewing, and deciding zoning applications for cellular facilities.

One way to avoid aclaim of unreasonable delay is for a zoning official to obtain the provider’sconsent to extensions of time. While repeated delays might test the bounds of aprovider’s patience, limited extensions for substantive purposes should begranted if the parties are acting in good faith. In at least one case, a courtheld that a provider that agreed to an extension of time was barred from makinga claim for unreasonable delay so long as a final decision was made within theextended time.

As a generalrule, courts have upheld zoning decisions by municipalities that have treatedcellular zoning applications similarly to other applications, and have appliedobjective standards in a non-discriminatory manner. Courts have also beenreluctant to grant injunctive relief to a cellular provider solely because amunicipality violated the shot clock requirements. However, a court might bemore favorably inclined to issue an injunction if it finds that themunicipality's delay in processing an application is based on some bias againstthe provider. For that reason, municipalities should remind their zoning board, plan commission, and corporate authorities to review cellular zoning applications dispassionately since courts have easily seen through decisions that are rooted in a pre-existing bias against wireless facilities.

Post Authored by Adam Simon.

Handouts Available for Municipal Law Seminar

2011-11-18T13:59:00.001-06:00

Ancel Glink attorneys conducted a municipal law training session for local government officials in Normal, Illinois, on November 17, 2011. The presentations included the following topics:

1. Five Easy Pieces to Employment Litigation

2. Council and Board Practices & Procedures

3. Zoning: Best Practices and Legal Update

4. Code Enforcement/Property Maintenance

You can download a copy of the handout materials for each of the sessions by clicking on the topic link above.

Texts on Personal Cell Phones Must be Released under FOIA

2011-11-17T07:00:00.000-06:00

In a binding opinion dated November 15, 2011, the Illinois Attorney General determined that the City of Champaign violated the Illinois Freedom of Information Act when it partially denied a request for text messages sent between city council members on their personal cellphones during city council meetings.

A news reporter had filed a FOIA request for all electronic communications, including cell phone text messages on city-issued and personal cell phones, city-issued and personal email addresses, and Twitter accounts. The city approved the request in part by releasing those records that were in the city’s possession, including communications that "passed through" city equipment. However, the city denied the request for emails, text messages, and other electronic communications on city council members' private computers or cell phones. The city's justification for the denial was that these communications were not “public records” under FOIA. The reporter appealed the city’s decision to the Public Access Counselor’s (PAC) office of the Attorney General.

The PAC's analysis turned on “what is a public record?” The PAC first determined that electronic communications that do not relate to city business (such as messages regarding personal meetings or family matters) are not public records subject to FOIA, whether those communications are sent via city-owned equipment or personal equipment.

The PAC next determined that electronic communications by public officials that relate to city business are public records subject to FOIA, regardless of how the communications are sent. In this case, the PAC determined that the city violated the Act by not providing text messages and emails between city council members that pertained to city business, even if the communications were created on private equipment that the city had no control over. The city was ordered to furnish copies of the records to the reporter.

This opinion raises a number of interesting issues for public bodies and officials. First, the statute that authorizes the PAC to issue binding opinions on FOIA matters states that the opinion is binding on the requestor and the public body. The statute is silent as to whether a binding opinion creates any precedent, raising the question whether this particular opinion would apply to other governmental bodies. Of course, even if the opinion were not binding precedent similar to an appellate court decision, in all likelihood, the PAC would take the same position if faced with similar circumstances in another community.

The next question is whether the retention obligations under the Local Records Act are also triggered for these records, meaning that local governments would have to maintain and retain these electronic communications unless permission is granted to destroy them?

That raises a more practical issue: how can a local governmental entity respond to a FOIA request within the statutory time frame when the records being requested are not under the control of the government body? A related question is how can a local government meet its retention obligations under the Local Records Act where it has no control or possession over the records?

Although this opinion is binding only on the City of Champaign and the reporter who requested the records, public bodies and officials need to be aware of the position being taken by the PAC with respect to electronic communications. Local officials who use their personal cell phones, computers, tablets, and other electronic devices to communicate on government business should be advised that their communications may be subject to FOIA, even if they do not “pass through” city equipment. Local governments may need to consider implementing local policies to govern the use of personal equipment for communications about government business consistent with the PAC’s opinion.

Post authored by Julie Tappendorf, Ancel Glink.

More Local Government News: LocalGovNews.org

2011-11-16T08:13:00.001-06:00

For readers who just can't get enough local government news, you might be interested in checking out the daily news service, LocalGovNews.org. LocalGovNews.org collects and organizes news stories about local government activities from all over Illinois and provides a daily update through an email subscription service.

For a free 1-month trial membership, email info@localgovnews.org with the words “free membership” in the subject heading.

Billboards, Leases, Zoning, and Takings

2011-11-16T07:59:00.001-06:00

Four Riders of the Apocalypse or a Good Way to Exorcise an Unwanted Billboard?

In a recent decision, an Illinois appellate court handed a legal victory to municipalities who properly use zoning to require the eventual removal of billboards from leased land.

In the case of CBS Outdoor, Inc. v. Village of Itasca and Wayne Hammer Trust Company, N.A., the court considered whether a municipal zoning action that requires the removal of a billboard is subject to the 90-day statute of limitation applicable to zoning actions in 65 ILCS 5/11-13-25(a), or the 5 year statute of limitation applicable to eminent domain actions in 735 ILCS 5/13-205. The court also looked at whether a billboard owner has standing to bring a takings claim under the Eminent Domain Act against zoning actions that require the eventual removal of a billboard at the end of a lease term.

The court concluded that a challenge to a zoning condition that requires the removal of the billboard at the end of a lease was subject to the 90-day zoning statute of limitation because that condition cannot be separated from the zoning action. The court explained that the zoning statute of limitation applies to “any” review of a zoning decision, including challenges to specific aspects of an otherwise valid zoning decision. Because CBS Outdoor waited 351 days to file its lawsuit, it was time barred under that 90-day zoning statute of limitation. The court also held that CBS Outdoor did not have standing to bring an action for compensation under the Eminent Domain Act because the Village’s zoning actions were part of a negotiated arrangement with the property owner and tying the removal provision to CBS Outdoor’s lease term was not a taking.

The CBS Outdoor case provides guidance for municipalities wanting to remove billboards on leased land that are the subject of a conditional zoning approval (i.e., special use, planned development). So long as the removal condition is tied to the term of the lease, it will not be a compensable taking. Also, if the removal condition is part of a valid zoning approval, any challenge to that condition must be brought within 90 days of the zoning approval.

Post Authored by David Silverman.

Sewer Tax Discrimination Case to be Decided by Supreme Court

2011-11-15T08:12:00.001-06:00

The U.S. Supreme Court will hear the appeal of a tax discrimination case against the City of Indianapolis in Armour, et al., v. Indianapolis, et al. This case grows out of sewer tax assessments on residents of the Northern Estates subdivision. When the City made plans for a new sanitary sewer project, it provided homeowners with the option of paying the taxes up-front or by way of an installment plan over a period of years. Owners of 31 parcels opted to pay the entire amount up-front, while the remaining subdivision owners chose to pay the sewer tax in installments.

Subsequently, the City Council adopted a new plan to finance the sewer project that would impose a flat fee per dwelling to connect to the sewer system. In adopting the new plan, the City abandoned the existing tax assessment system and decided to forgive all assessment amounts that remained due from the homeowners. As a result, the owners of 142 parcels in the Northern Estates Subdivision no longer needed to pay any more installments of the assessments. The 31 owners who had paid the sewer assessments up-front requested that the City refund those assessments, and when the City refused, the homeowners brought suit.

The Indiana Supreme Court ruled in favor of the City, holding that the City did not violate the Equal Protection Clause because forgiving only the outstanding assessment balances was rationally related to a legitimate governmental interest. The Indiana Court accepted the City's justifications for the new financing plan, including that (1) the original financing plan imposed financial hardships on middle- and low-income property owners who were in need of sanitary sewers due to failing septic systems and (2) the owners who had paid the sewer assessments up-front were financially better off so the two groups of owners (those who paid up-front and those who opted for the installment plan) were not on equal legal footing and did not need to be treated equally.

This case should be of interest to municipalities in setting taxing and other assessment rates that might differ between classes of people or properties.

UPDATE 2/29/2012: The Supreme Court heard oral argument in this case today. A copy of the transcript can be found here.

Agriburbia™ - Beyond Chickens in the City?

2011-11-14T08:47:00.001-06:00

Last month, I posted a story about municipal regulation of urban agriculture. The post included examples of small scale trends in urban agriculture, including municipal regulation of the conversion of lawns to crops and the keeping of chickens on residential properties. Many municipalities such as Denver, Chicago, and others are finding it necessary to address these small scale sustainability efforts by adopting or amending existing ordinances, which had not contemplated agricultural uses in residential districts. But, while urban agriculture can trace its roots to individuals and families interested in implementing their own form of sustainable practices one residential lot at a time, some are taking urban agriculture to the next level and integrating urban agriculture into new residential developments.

"Agriburbia™" integrates food production as an integral element in a residential community. The term "Agriburbia™" has been trade marked by and is being developed by The TSR Group, a design and sustainable development management firm based in Golden, Colorado. According to The TSR Group's website, an Agriburbia™ planned development replaces traditional landscaping with vegetable gardens, orchards, vineyards, and other crops, for the use and enjoyment of the development and surrounding communities. The farming areas are typically owned and managed by the HOA, although some developments have leased out the land to private entities to farm on behalf of the HOA. The purpose of the agriburbia planned development is to provide residents with locally grown fruits and vegetables and, in some cases, revenue from the sale of produce through local farmers' markets.

What this means for municipalities is that they may need to look beyond the basic "chickens in the city" ordinance and consider establishing broader land use regulations and controls to address this new trend. Most zoning and land use codes are not likely to allow commercial agricultural operations such as those contemplated in an Agriburbia™ planned development in residential zoning districts. A municipality interested in encouraging this type of sustainable land use development might consider amending its planned unit development regulations to establish regulatory controls and standards for this new trend of development.

D.C.’s Gun Registration Law Gets Mixed Review by Court

2011-11-11T10:50:00.001-06:00

The D.C. Court of Appeals has provided yet another benchmark in the evolving world of local gun regulation in Heller v. Dist. of Columbia (Heller II) (not to be confused with the 2008 U.S. Supreme Court case District of Columbia v. Heller (Heller I)). You may recall that in Heller I, the U.S. Supreme Court struck down a Washington D.C. law that prohibited handgun possession and that required firearms in the home be stored unloaded and disassembled or locked, holding that the Second Amendment protects an individual’s right to possess an operable handgun in the home for self-defense. Just two years later, the U.S. Supreme Court extended the Heller I decision to state and local government gun laws in McDonald v. City of Chicago.

In Heller II, plaintiffs challenged provisions of D.C's gun laws requiring the registration of firearms and prohibiting semi-automatic assault weapons and the possession of magazines with a capacity of more than ten rounds of ammunition. The Appeals Court upheld D.C.'s ban on assault weapons and large-capacity magazines. However, D.C.'s registration regulations got a mixed reaction. Regulations that required detailed background information on handgun owners were upheld as constitutional. But, regulations that limited the sales of multiple guns and that required detailed registration of "long gun" owners were set aside unless and until D.C. could provide studies identifying the need for these regulations.

Heller II provides a great overview of the current state of Second Amendment law and the legal standards that may apply to future Second Amendment challenges (i.e., gun shop regulations). Most notably, Heller II stresses the need for studies to support gun regulations, similar to the “secondary effects” studies required to support regulations on adult uses and businesses. Municipalities that have, or are considering, gun regulations (beyond basic handgun registration) may want to begin the process of compiling data demonstrating that their efforts are substantially related to an important local concern.

Post Authored by Brent Denzin.

Article Summarizes Recent Cases in Ethics and Land Use

2011-11-10T09:26:00.000-06:00

Municipal planning and zoning officials, as well as those who advise municipalities on land use issues, should read the following article concerning ethics and land use: "Failure to Articulate Clear Ethics Rules and Standards and the Local Level Continues to Haunt Local Land Use Decision Makers," written by Patty Salkin, Professor at the Albany Law School, and published in the summer 2011 edition of The Urban Lawyer.

The article provides an annual review of reported decisions addressing ethical considerations that arise in the land use context for lawyers, planners, board members, and other stakeholders in the land use decision-making process, including conflicts of interest, bias, and ex parte communications. The article discusses a number of real-life examples of ethical situations faced by land use professionals, including planning board members who also work as developers in their municipality, land use attorneys who "change sides" from representing the municipality to representing developers who appear before the municipality, and allegations of bias of municipal officials who showed disinterest, rolled their eyes, whispered, and laughed during an applicant's presentation. Not that this last situation would ever happen in any of our readers' municipalities.

To find out how the courts ruled on these three situations, and to read about other decisions in the ethics and land use area, you should check out Patty's article.

Supreme Court to Decide Fair Housing Act Challenge to St. Paul’s Housing Code

2011-11-09T07:42:00.000-06:00

On Monday, the U.S. Supreme Court granted cert in Magner v. Gallagher. The case involves a challenge by rental property owners to the City of St. Paul’s housing code that imposes obligations on landlords to maintain and repair rental properties. The rental property owners claimed that the ordinance has a disparate impact on minorities because the housing code requirements will increase their costs and decrease the number of rentals available to low-income households. The Eighth Circuit Court of Appeals allowed the disparate impact suit to move forward under the Fair Housing Act.

The Supreme Court will be asked to resolve the following two issues: (1) whether disparate impact claims are recognized under the Fair Housing Act; and if so (2) what test should be used to analyze these claims.

The Supreme Court had previously granted leave to file an amicus brief by the International Municipal Lawyers Association (IMLA). IMLA's brief argues that the Supreme Court should resolve the conflict between the various Circuit Courts. Specifically, IMLA argues that the Eighth Circuit's decision in Magner conflicts with the holdings in similar cases decided in the Fourth, Seventh, and Tenth Circuits, and that plaintiffs' disparate impact claim brought under the Fair Housing Act would have been rejected based on the tests adopted by the other Circuits.

This case should be closely watched by municipalities that have enacted similar rental housing ordinances.

UPDATE 2/14/2012: The City withdrew its appeal last week - see updated post on 2/14/2012.

Can Parks Fix the Real Estate Crisis?

2011-11-08T09:16:00.001-06:00

A recent study by the City Parks Alliance advocacy group and Georgia Tech, financed by the Speedwell Foundation, suggests that they can. The project, “Redfields to Greenfields” looked at the impact of empty commercial sites on communities and the potential for redevelopment of these sites as parks. The group's position is that establishing parks on vacant commercial sites such as empty parking lots, abandoned big box stores, and vacant strip malls, is a quick way to increase property values in the surrounding area and the community. Redevelopment is also a job creator.

The group has partnered with 11 cities, using models to predict what might happen if a city were suddenly able to invest billions of dollars in buying up and converting commercial properties into parks. The participating cities – including Houston, Denver, Cleveland and Atlanta – pulled together reports on their oversupply of commercial property and the benefits of providing parks to neighborhoods that are lacking in public space.

Thanks to Adam Simon for forwarding this story to Municipal Minute.

Will the Supreme Court Resolve the Takings Issue?

2011-11-07T09:42:00.001-06:00

The U.S. Supreme Court is expected to decide soon whether it will consider the appeal of the Ninth Circuit’s decision in West Linn Corporate Park, LLC v. City of West Linn that refused to extend Nollan/Dolan’s nexus and rough proportionality test to a municipality’s requirement that a developer construct off-site public improvements.

Since Nollan/Dolan, lower courts have struggled with the following question -- is the nexus and rough proportionality test limited to physical exactions of real property? Some lower courts have decided that the test applies to all exactions, including impact fees and exactions that do not involve the dedication of land. Other courts have disagreed, finding that the test only applies to a demand for dedication of land, most recently in the Florida Supreme Court’s decision in St. Johns River Water Management Dist v. Koontz.

Thanks to Robert Thomas and his blog, Inverse Condemnation, for his summary of an issue of importance to land use attorneys, developers, and local governments across the country.

UPDATE 11/14/11 - Petition for cert. was denied.

Ancel Glink's Zoning & Land Use Group on Twitter

2011-11-07T09:42:00.000-06:00

I am pleased to report that you can now follow Ancel Glink's zoning and land use group on Twitter @AncelGlinkLand. In addition to reposting Municipal Minute blog stories, @AncelGlinkLand will report on current land use, economic development, and environmental issues . . . in 140 characters or less, of course.

Upcoming Seminar on Municipal Law

2011-11-04T11:06:00.000-05:00

Ancel Glink will present a local government law seminar in Normal, Illinois, on November 17, 2011, from 1:00 – 5:00 p.m. Local government officials and employees will hear presentations by Ancel Glink attorneys on the following topics:

1. Code Enforcement and Property Maintenance

2. Zoning: Best Practices and Legal Updates

3. Council and Board Practice and Procedures

The seminar will be held at the Bloomington-Normal Marriott Hotel & Conference Center located at 201 Broadway Street in Normal, Illinois. A copy of the brochure with information on registration can be found here.

Eight Circuit Finds City Ban on Funeral Protests Unconstitutional

2011-11-03T09:06:00.000-05:00

Three years ago, the Sixth Circuit Court of Appeals upheld an Ohio statute that prohibited picketing or other protest activities within 300 feet of the funeral or burial service, from one hour before until one hour after the funeral or burial service. Phelps-Roper v. Strickland. The statute was passed in response to protests conducted by the Westboro Baptist Church at various funerals of military personnel across the country. The court determined that the statute was a reasonable, content-neutral regulation of the time, place, and manner of speech.

Recently, the Eighth Circuit Court of Appeals addressed a similar ban adopted by the City of Manchester, Missouri in Phelps-Roper v. City of Manchester. Manchester’s ordinance prohibited "picketing or other protest activities…within three hundred (300) feet of any residence, cemetery, funeral home, church, synagogue, or other establishment during or within one (1) hour before or one (1) hour after the conducting of any actual funeral or burial service at that place."

Members of the Church brought suit to challenge the City of Manchester’s ordinance. The district court ruled that the City’s ordinance violated the First Amendment and permanently enjoined enforcement of the ordinance and awarded nominal damages to the plaintiffs. On the City’s appeal, the Eighth Circuit affirmed the district court, in part, determining that the City’s ordinance violated the First Amendment because the City does not have a significant governmental interest in protecting funeral attendees from unwanted communication.

New Takings Article Answers the Question - Are Raisins Property for Purposes of a Takings Claim?

2011-11-02T08:53:00.000-05:00

Check out the recently published article by Robert Thomas on regulatory takings law, "Recent Developments in Regulatory Takings Law: What Counts as “Property," 34 Zoning & Planning Law Report 1 (Thomson West 2011). You can read the entire article on the author's blog, Inverse Condemnation. The article takes an interesting look at unique takings claims around the country, such as whether a court-appointed attorney’s services is property for purposes of a takings claim in South Carolina (spoiler alert: it is) or whether a set-aside requirement for raisin producers is an unconstitutional takings in California (it is not).

Supreme Court Declines to Hear Highway Cross Appeal

2011-11-01T12:23:00.001-05:00

OnMonday, October 31, 2011, the United States Supreme Court voted 8-1 to decline tohear an appeal of a lower court’s decision that the placement of 12 foot high crosseson the side of Utahhighways to honor fallen state troopers violated the First Amendment'sprohibition on government establishment of religion.

The high court’s refusal to take the casemeans that the 10^th Circuit Court of Appeal’s ruling that the 14 crosses erected on public property constitute a governmentendorsement of Christianity will stand.

Althoughthe Supreme Court provided no reason for its refusal to hear the appeal,Justice Clarence Thomas issued a 19 page dissent, saying that the courthad rejected “an opportunity to provide clarity to an establishment-clausejurisprudence in shambles.”

NLRB Issues Report on Employee Social Media Cases

2011-10-31T11:12:00.000-05:00

Local government employers, like other bosses, are struggling with critical social media posts by employees. Can an employer terminate or discipline a worker for complaining about his or her boss or company on Facebook? Will social media policies protect an employer? The answers to these questions are not yet clear, although a report recently issued by the National Labor Relations Board (NLRB) will provide some guidance.

In a recent report issued by the acting general counsel of the NLRB, the NLRB reviewed 14 cases involving investigations into the use of social media by employees. A copy of the report can be found on the NLRB's website. A summary of a few of these cases follows:

In one case, the NLRB ruled that a nonprofit employer unlawfully discharged five employees who had posted comments on Facebook relating to allegations of poor job performance that had been previously expressed by one of their coworkers. The workers were found to be engaged in "protected concerted activity" because they were discussing terms and conditions of employment with fellow co-workers on Facebook. The NLRB cited the Meyers ruling that an activity is concerted when an employee acts "with or on the authority of other employees, and not solely by and on behalf of the employee himself." In this case, the discussion was initiated by one worker in an appeal to her coworkers on the issue of job performance, resulting in a "conversation" on Facebok among coworkers about job performance. The NLRB ruled similarly in three other cases included in the report.

In another case, however, the NLRB ruled that a reporter's Twitter postings did not involve protected concerted activity. Encouraged by his employer, a reporter opened a Twitter account and began posting news stories. A week after the employee posted a tweet critical of the newspaper's copy editors, the newspaper informed the employee he was prohibited from airing his grievances or commenting about the newspaper on social media. The reporter continued to tweet, including posts about homicides in the City and a post that criticized an area television station. The newspaper terminated the reporter based on his refusal to refrain from critical comments that could damage the goodwill of the newspaper. The NLRB found that the employee's conduct was not protected and concerted because it (1) did not relate to the conditions of employment and (2) did not seek to involve other employees on issues related to employment. The NLRB issued a similar ruling in a case involving a bartender who posted a Facebook message critical of the employer's tipping policy, finding the posts mere "gripes" that are not protected.

The NLRB also ruled that several employer social media policies were overbroad where the policies could be construed to prohibit protected conduct.

What does this mean for local government employers? First, employers must be cautious in disciplining or terminating employees for critical posts on social media sites. An employer should ask itself whether the posts are "protected and concerted activity" or merely constitute "gripes" about an employer that are not protected? Second, an employer should review its social media policy to make sure it is not overbroad in prohibiting protected activities. Finally, an employer should be careful not to enforce social media policies in an arbitrary or discriminatory manner.

Annual Review of the Law Just Published by The Urban Lawyer

2011-10-28T14:34:00.000-05:00

The State and Local Government Law Section of the American Bar Association, with the University of Missouri-Kansas City School of Law, just released the “Annual Review of the Law” edition of The Urban Lawyer. This national journal on state and local government law includes more than a dozen articles on recent developments in the area of local government and land use law.

Three Ancel Glink attorneys contributed articles to this publication. Julie Tappendorf, author of this blog, with co-author Brent Denzin, wrote an article titled “Turning Vacant Properties into Community Assets Through Land Banking.” A copy of this article is available for download on the publications page of this blog. In addition, David Silverman authored the article “Green Transportation: Roadblocks and Avenues for Promoting Low-Impact Transportation Choices.”

This edition includes a number of other articles of interest to local government officials, including articles on ethics in land use written by Patty Salkin, land use regulation of cellular telecommunication facilities written by Robert Foster, recent developments in condemnation law authored by Robert Thomas, and religious land use developments written by Dan Dalton.

Upcoming Audio/Web Conference on Social Media and Ethics

2011-10-26T07:47:00.000-05:00

On November 9, 2011, from 4:00 to 5:30 p.m. ET (3:00 to 4:30 p.m. CT), the American Planning Association (APA) will present an audio/web conference titled “Social Media and Ethics.” The APA describes the program as follows:

"In this brave new world of media, what is ethical? Social media applications have created new ways to communicate but are seldom addressed in administrative rules. What can you say to whom, and how? This Audio/Web Conference explores how social media affect planners and planning commissioners and whether ethical considerations are the same for both groups.”

I will be presenting the program with Patty Salkin, Associate Dean at the Albany Law School and author of the popular land use blog "Law of the Land.”

For more information about the program and to sign up, visit the APA’s website at: http://www.planning.org/audioconference/series/socialmedia.htm

Municipal Electric Aggregation

2011-10-25T10:52:00.001-05:00

A number of municipalities are taking advantage of an Illinois statute that allows municipalities, after referendum approval, to enter into contacts with electricity purchase agreements on behalf of consumers within their jurisdiction. The agreements provide for the bulk purchase of electricity from Commonwealth Edison and then the sale of that electricity at reduced rates in municipalities that have approved the concept. By aggregating the buying power of a large number of small customers, a municipal entity should be able to get a better deal for its customers than if they shop for electricity on an individual basis.

To initiate the process, a municipality must place a referendum question on the ballot. If the referendum is approved, then the municipality can choose one of two programs for the purchase of electricity. The first type is an "opt-in" program that requires an individual customer to enroll in the electricity aggregation program before being included in the pool of customers. The second type is an "opt-out" program that automatically includes each household in the pool unless an individual affirmatively decides not to participate. The second type is the most popular program because customers are more likely to utilize this service if it is provided to them on a default basis. The municipality must then develop a plan of operation and governance for the aggregation program and hold at least two public hearings on the plan. An RFP must be prepared and issue for the services, and the municipality must notify customers of the rates, conditions of enrollment, and if applicable the option for customers to “opt-out” of the aggregation.

Because of the complexity of the process, many municipalities have either retained a consultant familiar with the electric aggregation process or joined forces with other municipalities in moving forward with the aggregation process.

In 2011, 24 municipalities in Illinois placed referenda on their ballots. 21 of these referenda were approved. Given the popularity of this program, many more communities are likely to place referenda on the Spring 2012 ballot.

For more information about electric aggregation, you might review the article published by the Illinois Municipal League in the October 2011 edition of the Municipal Review.

Constitutionality of Chicago’s Public Expression Policy Analyzed by Seventh Circuit Court of Appeals

2011-10-21T10:21:00.001-05:00

In Marcavage v. City of Chicago, the Seventh Circuit Court of Appeals considered a constitutional challenge to the City’s public expression policy filed by protestors of the seventh annual Gay Games in Chicago. Plaintiffs, members of the Christian ministry organization “Repent America,” had appeared at various events held during the Games. After Chicago police officers ordered the plaintiffs to change the location of their protest at events held at Soldier Field, Wrigley Field, Navy Pier, and Gateway Park, plaintiffs filed a lawsuit claiming that the City had violated their First Amendment rights to free speech, their Fourteenth Amendment right to equal protection, their rights under the Illinois Religious Freedom Restoration Act, among other claims. The district court granted the City’s motion for summary judgment on all counts, and the plaintiffs appealed to the Seventh Circuit.

The court of appeals upheld the district court’s ruling that Chicago police officers did not violate the First Amendment when they ordered the protesters to move from one area at Soldier Field and Wrigley Field to designated areas. The appellate court found that the officers’ actions were content-neutral, narrowly tailored to serve a significant government interest, and left open ample alternative channels for communication. The court also rejected plaintiffs’ claims that the officers violated their right to equal protection finding that the plaintiffs were not similarly situated to other users of these areas. Finally, the court determined that police did not violate the Fourth Amendment when they arrested the protestors because probable cause existed for their arrest. The court also found that the restrictions on public expression at Navy Pier did not violate the Illinois Religious Freedom Restoration Act because the city properly designated it a non-public forum. The court did, however, remand the case to the district court to determine whether the public expression policies at Gateway Park are appropriate given that the park is a traditional public forum.

Municipal Regulation of Urban Agriculture

2011-10-20T11:34:00.001-05:00

Urban agriculture has taken on a new life recently, driven by an emphasis on local and organic food, as well as the economic downturn. Small vegetable gardens in the back yard are rarely a cause for concern. But, what if an owner replaces lawns with row after row of crops? What if that same owner sells the crops at the local farmers' market? Finally, what if a property owner decides to raise chickens, goats, or other livestock? Are these agricultural uses consistent with a municipality's existing zoning regulations?

Municipalities are addressing the zoning issue in a variety of ways. Some municipalities have cited property owners for illegal agricultural uses in a residential district. For example, DeKalb County, Georgia cited a property owner for growing too many vegetables on his two-acre residential lot. The issue centered on the owner's sale of the crops at the farmers' market, turning this otherwise lawful use into an illegal commercial use. The owner was fined $5,000, but eventually was successful in rezoning his property to allow the commercial agricultural use. Similarly, Lee County, Florida cited a property owner for keeping 10 chickens on a residential property. In Hollywood, Florida, a lawsuit was filed by a property owner challenging the legality of his neighbor keeping 15 chickens on the property.

Other communities have amended their zoning ordinances to allow limited agricultural uses in residential zoning districts. Denver, Colorado enacted an ordinance that allows residents to keep chickens and goats. Northbrook, Illinois amended its zoning ordinance to allow front yard vegetable gardens. The City Council in Naperville, Illinois declined to amend its zoning ordinance to require permits for chicken coops and to establish a 25-foot distance between a chicken coop and any neighboring home. Chicago amended its zoning code earlier this year to expressly authorize urban farming of fruits, vegetables, and fish.

What does this mean for local governments? As an initial matter, the municipality should determine its position on urban agriculture. Are vegetable gardens acceptable but not the commercial sale of crops? Does a municipality want to allow livestock in residential districts? Should a municipality impose lot size or locational restrictions on urban agricultural uses? Once a municipality has identified the scope of acceptable agricultural uses, then it should examine its existing zoning regulations to determine whether amendments are necessary. A municipality should be prepared for citizen opposition to any proposal to expand agricultural uses involving livestock or other animals (chickens, bees, goats) in residential zones.

Chicago Considers Amending Vacant Property Ordinance that Defines Banks as Owners

2011-10-18T08:49:00.001-05:00

This summer, the Chicago City Council passed a vacant property ordinance that established certain property maintenance obligations on the owners of vacant property. The ordinance became effective in September and defines any entity that holds the mortgage on a property as a property owner. Under the ordinance, a lending institution would become responsible for maintaining properties on which it holds mortgages even before foreclosure.

Banks had raised questions about the legality of the vacant property ordinance, claiming it was unconstitutional because it was overly broad and a violation of the equal protection rights of lenders who may be listed as mortgagee on the property, but not the official owners of title. A number of banks had threatened to sue the City over the ordinance.

This week, a revised ordinance was introduced before a City Council committee. The new proposal is a compromise between City officials and banks and would require banks to start maintaining vacant properties within 60 days of default on a mortgage. The required maintenance would include securing or boarding up of buildings, mowing the grass, and shoveling the snow, among various other maintenance obligations. Signs would also have to be posted with contact information for those responsible for the properties. Violations could lead to fines of up to $1,000 a day.

New Economic Development Financing Authority

2011-10-17T11:15:00.002-05:00

The Illinois General Assembly recently enacted Public Act 97-0094, authorizing municipalities to appropriate and spend public money for economic development purposes. The new statute is set out below:

65 ILCS 5/8-1-2.5. Expenses for economic development. The corporate authorities may appropriate and expend funds for economic purposes, including, without limitation, the making of grants to any other governmental entity or commercial enterprise that are deemed necessary or desirable for the promotion of economic development within the municipality.

The Illinois Municipal League supported the legislation, which the League described as a necessary tool for municipalities in attracting businesses given the current economic climate. This new authorization is particularly important for non-home rule municipalities who have been limited in their ability to expend public funds for economic development. This new statute will allow municipalities to be more creative in incentivizing economic development beyond what is currently authorized in the Illinois TIF and business district statutes, as well as existing statutory authority to rebate sales and property taxes.

The statute is too new to determine what limitations an Illinois court might place on the use of public funds for private development. At the very least, when a municipality approves a grant or other economic incentive for a development or project, it should consider adopting specific findings that the development or project is necessary or desirable to the promotion of economic development within the municipality.

Is Content Posted to a Social Media Site a Public Record that Must be Retained?

2011-10-12T08:07:00.002-05:00

Most states have record retention laws that require local governments to preserve and retain public records unless permission is granted for destruction of a particular record or category of records. With more local governments establishing a social media presence on Facebook, Twitter, and other popular sites, questions have arisen as to whether these sites, and content posted on these sites, are considered "records" that must be retained under state record retention laws. The Attorney General in at least one state (Florida) has issued an opinion that social media content is a public record that must be retained. The New York State Archives has issued a preliminary opinion that social media content is likely to be subject to state record retention laws and should be preserved. The Secretary of State for the State of Washington has published guidelines to assist local governments in determining whether social media content is a public record subject to preservation. It is likely that other states will follow.

In Illinois, there are no current policies in place to govern the retention or preservation of local government social media content. The Illinois Local Records Management Services recently announced that it was in the process of drafting a social media retention policy. Because it is expected to take some time before a final policy is issued, it is recommended that local governments retain, capture, or archive electronic publications and records to the extent possible. Certain records that link to the local government's web page are in and of themselves original documents and should be archived according to current record retention requirements. For example, ordinances and minutes of meetings that are typically posted on a web site as a convenience to the public are also available as a paper record. Since the web-linked version is not the original source of these documents, it should not need to be archived. However, content that is originally created on a social media site such as Facebook or Twitter that does not exist in any other form may need to be captured and archived until permission is obtained to destroy the record.

Municipalities Required to Post Employee Salaries in 2012

2011-10-06T17:06:00.000-05:00

The Illinois General Assembly recently enacted Public Act 97-0609 amending the Illinois Open Meetings, and the Illinois Pension Code. The new posting requirements are effective January 1, 2012, and require the following:

Within six days after approving its budget, an IMRF employer must post the total compensation package for each employee receiving a total compensation package that exceeds $75,000 a year.

At least six days before an IMRF employer approves an employee’s total compensation package that will equal or exceed $150,000 a year, the employer must post the total compensation package for that employee.

The Act also amends various provisions of the Illinois Pension Code.

U.S. Supreme Court Blocks Appeal of Megachurch Case on First Day of 2011/2012 Term

2011-10-04T09:55:00.000-05:00

On October 3, 2011, the U.S. Supreme Court declined to hear the City of San Leandro’s appeal of the Ninth Circuit Court of Appeal’s decision in favor of Faith Fellowship Foursquare Church, a 2,000-member church that sought to open a new church in an industrial zone.

The facts are set out in the Ninth Circuit decision in International Church of the Foursquare Gospel v. City of San Leandro. The church had contracted to purchase a parcel of land zoned in the City’s industrial district. At the time the church signed the contract, churches were not allowed in the IP district. The church applied for a zoning text and map amendment. Shortly thereafter, the City decided to amend its zoning code to create an assembly use overlay district. The overlay district would cover approximately 200 parcels of land in various non-residential zoning districts. In order to establish an assembly use on its property, an owner would have to establish that the property met eight criteria.

During the hearing process for the zoning code amendments, the church closed on the purchase of its property. After the zoning code amendments were approved, the church applied for approval of its proposed church. The City denied the application because it did not meet two of the eight criteria under the new overlay district requirements, and the church sued.

A federal judge had previously dismissed the church's suit, but the Ninth Circuit held that the church was entitled to define its own religious mission and could argue at a trial that its rights outweighed the City's revenue needs. The Ninth Circuit determined that although the zoning code amendments were facially neutral and generally applicable, the City’s individualized assessment of the church’s rezoning application was not because (1) that there were no alternative sites readily available to the church; (2) the church’s core beliefs required that all congregants worship at the same time and same place; (3) all 196 parcels identified as appropriate for the overlay district failed to meet at least one of the eight criteria; and (4) the City’s interest in protecting properties for industrial uses was not compelling.

The church sold the building at a loss last year and claims damages of nearly $4 million. The U.S. Supreme Court’s denial of certiorari means that this case will move forward to trial.

Developer had Vested Right to Develop Residential Subdivision

2011-10-03T11:32:00.002-05:00

In a recent decision, an Illinois appellate court upheld a trial court’s ruling that a developer had a vested right to develop a 20-lot residential subdivision and ordered the City to approve the development plans. Reserve at Woodstock, LLC v. City of Woodstock, et al.. The court also invalidated the City's rezoning and disconnection ordinances, finding that the City violated its duty of good faith and fair dealing under the annexation agreement.

The annexation agreement in question had been approved in 1993, with a 20 year term. No development occurred on the property for a period of 10 years. In 2003, the plaintiff (Reserve) submitted plans for approval of a 26-lot subdivision. The Plan Commission recommended denial because the annexation agreement only allowed the development of 20 lots. Three years later, Reserve submitted plans for a 20-lot subdivision. The Plan Commission recommended approval of the revised plans but the City Council denied Reserve's application.

Reserve filed suit against the City in October of 2006. One month later, the City rezoned the property to the agricultural zoning district, and disconnected the property in September of 2007. The trial court ruled in favor of Reserve on all of its claims.

The appellate court determined that Reserve’s case turned on an interpretation of two somewhat conflicting provisions in the annexation agreement. The first provision prohibited the municipality from rezoning the property during the life of the agreement. The second provision provided that if the property was not developed within 5 years of annexation, the municipality had the right to rezone and disconnect the property. The City claimed that it had an absolute right to rezone and disconnect the property under the second provision. Reserve claimed that the City’s right to rezone was restricted by its contractual duty of “good faith and fair dealing."

The appellate court agreed with Reserve, finding that the City violated its duty of good faith and fair dealing where it waited to rezone and disconnect the property until more than 7 years after the "right to rezone and disconnect" provision of the annexation agreement had been triggered and only after Reserve had submitted development plans for approval. The court also found that Reserve had a vested right to the approval of its plans for a 20-lot subdivision, based on the substantial expenditures it made in good faith reliance on the zoning and annexation agreement.

Just Released - Fall Issue of "In the Zone: Current Trends in Land Use Law"

2011-09-29T10:49:00.000-05:00

Check out the fall issue of Ancel Glink's e-newsletter, 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. This edition also includes an in-depth analysis and commentary on land use topics of interest to government officials, as well as property owners and developers, including the following:

All in the "Family": Changing Times and Changes to Local Zoning Ordinances

Most municipalities define "family" in regulating single and multiple family housing districts. Many of these definitions track the language in the Illinois Municipal Code, which allows municipalities "to classify, to regulate and restrict the use of property on the basis of family relationship, which family relationship may be defined as one or more persons each related to the other by blood, marriage or adoption and maintaining a common household."

Beginning June 1, 2011, Illinois recognized its first civil unions under the recently adopted Illinois Religious Freedom Protection and Civil Union Act. (P.A. 96-1513). A civil union is a legal relationship between two persons of the same or opposite sex established under the Act. Municipalities should recognize that their zoning code's definition of "family" will now include civil unions because the Act provides that a party to a civil union will be included in "any definition or use of the term . . . family . . . and other terms that denote the spousal relationship, as those terms are used throughout the law." For more about how this new law affects municipalities, consult the fall issue of In the Zone.

The RCRA Ultimatum: How an Inexpensive Letter can Clean Up Contaminated Lots

RCRA is a long-standing federal law setting standards for handling, transporting, and disposing of "waste." However, there is more than meets the eye. RCRA requires owners and operators to take all necessary steps to abate any "imminent and substantial endangerment to health or the environment" caused by their waste. Most importantly, RCRA authorizes citizens and local governments to take direct action against owners or operators of facilities to clean up their waste, including gas stations, dry cleaners and other local sources of contamination. The tool: the RCRA citizen suit. Upon closer look, you will find that the RCRA citizen suit offers three unique and remarkable powers, which are detailed in the fall issue of In the Zone.

For a full copy of the fall edition of In the Zone, visit Ancel Glink's website at http://www.ancelglink.com/.

Checklist for Drafting a Social Media Policy (Part 2)

2011-09-27T12:20:00.000-05:00

As promised, in addition to the issues raised in part one of this article, a government’s social media policy should include rules for employee use of social media, some of which are addressed below.

5. Employee Usage Policy

These policies should include, if applicable, employer monitoring of employee use of government computers. The policy should also caution employees that they have no expectation of privacy while using the internet on employer equipment.

The policy might also require employees who identify themselves as employees of a particular government or company to post a disclaimer that any postings or blogs are solely the opinion of the employee and not the employer. Employees should not use the government or company logo, seal, trademark or other symbol without written consent of the administrator. The policy should also address the protection of confidential and sensitive government or company information, as well as personal information relating to clients, customers, or residents.

An employer should be careful not to implicate the First Amendment rights of its employees nor violate any applicable federal or state employment laws protecting employees. A recent example involved a settlement between the National Labor Relations Board and an ambulance service that fired an employee for criticizing her employer on Facebook. The ambulance company argued that the employee’s statements violated the company’s social media policy barring workers from disparaging the company or their supervisors. The Labor Board argued that the National Labor Relations Act protects an employee’s discussion of conditions of his or her employment with others and that co-workers comments on the employee’s Facebook page implicated those protections. As part of the settlement, the company stated it would change its policies so they did not restrict employees from discussing work and working conditions when they are not on the job.

Finally, all employees should be required to sign a written acknowledgement that they have received, read, understand, and agree to comply with the social media policy.

Checklist for Drafting a Social Media Policy (Part 1)

2011-09-26T13:43:00.002-05:00

A local government considering establishing a community Facebook, Twitter, or other social networking site should first adopt a social media policy to govern the administration and monitoring of site content, set ground rules for public input and comments, and adopt policies for employee usage of social media.

Part one of this article focuses on policies for administration and content of the social media site:

1. Purpose

The policy should contain a statement that the use of social media by the government entity is for the purpose of obtaining or conveying information that is useful to, or will further the goals of, the government.

2. Approval and Administration

The policy should provide for an administrator to oversee and supervise the social media networking sites of the government. The administrator should be trained regarding the terms of the policy and his or her responsibilities to review content to ensure it complies with the policy and furthers the government's goals.

3. Comment Policy

The policy should identify the type of content that is not permitted on a social media site and that is subject to removal. This might include comments that are not relevant to the original topic, profane, obscene, or violent content, discriminatory content, threats, solicitation of business, content that violates a copyright or trademark, and any content in violation of federal, state, or local law. The policy should also contain a disclaimer that any comment posted by a member of the public is not the opinion of the government. Finally, the policy should include language that reserves the right of the administrator to remove content that violates the policy or any applicable law.

4. Compliance with Laws

The policy should include language regarding compliance with applicable federal, state, and local laws, regulations, and policies. It should be made clear that content posted on a government site is subject to FOIA and record retention laws. In addition, content posted on social media sites may be subject to e-discovery laws. Finally, information that is protected by copyright or trademark should not be posted or maintained on a social media site unless permission has been granted by the owner of the intellectual property.

Stay tuned for part two of this article, which will focus on policies for employee usage of social media.

The Quiet Revolution in Land Use Control – 40 Years Later

2011-09-23T13:58:00.004-05:00

On September 20, 2011, land use professionals from across the country participated in a day long conference to discuss the state of land use and planning regulations and control. The conference was sponsored by the Center for Real Estate Law at The John Marshall Law School in Chicago. The event commemorated the 40^th anniversary of the publication of The Quiet Revolution in Land Use Control, written by Fred Bosselman and David Callies. Both authors were on hand to present a history of the report, which illustrated the shift from local to regional planning and land use in specific regions and states. Other land use professionals, including Daniel Mandelker, Patty Salkin, Ed Sullivan, Nancy Stroud, Steve Elrod, and Dwight Merriam, among others, participated in panel discussions about the report, and its impact on land use and planning. These discussions included examples of “quiet revolution” success stories (Portland and Minneapolis), an example of a project-based “quiet revolution” (Techny development in Illinois), and the recent shift from a strong state land use program to increased local control (Florida).

A description of the event can be found at http://www.jmls.edu/events/Kratovil%20Conf%20PDF.pdf and a copy of The Quiet Revolution in Land Use Control is available for free download at http://www.eric.ed.gov/PDFS/ED067272.pdf.

New Law Requires Open Meetings Training for Elected and Appointed Officials

2011-09-21T16:43:00.000-05:00

On August 23, 2011, the Illinois General Assembly amended the Open Meetings Act (OMA) to add a new training requirement for all elected and appointed officials of a public body. This new training requirement does not replace the annual OMA training that must be completed by the OMA officials designated by the public body to receive such training.

Officials holding office on January 1, 2012, have one year in which to complete the training. Officials taking office after that date have 90 days to complete the training. Officials who have already completed an OMA training program are not required to do so again.

The electronic training program is administered by the Public Access Counselor (PAC). Upon completion of the training, each official must submit a certificate of completion to the PAC. A certificate of completion covers the official for any committee or subcommittee of the public body and for every other public body of which the official may be a member. Instructions to public officials are not yet published by the PAC, but certification as an OMA officer under the current law will satisfy the new requirements. An elected school board member may satisfy the training requirement by participating in a program conducted by an organization created under §23 of the School Code (school board associations), rather than the program administered by the PAC.

Failure of an official to satisfy the OMA training requirement does not affect the validity of any action taken by the public body.

The new law is effective January 1, 2012.

UPDATED posts on this topic: 1/2/2012 and 12/27/2011

Council Wars and Power Plays: How to Avoid Them and How to Survive Them

2011-09-19T16:03:00.002-05:00

At the Illinois Municipal League’s recent annual conference, we presented the above-titled session to a packed audience of local government officials. Our prepared Q&A described hypothetical disputes and suggestions for resolution of each dispute. Our intention was to provide tools for those rare communities where every issue turns into a conflict, misunderstanding, irrational debate, and in some cases, a lawsuit. We made it through only three questions before the flood gates opened, and audience members presented us with their real-life disputes. It seems as if the rare has become the commonplace, and many communities are encountering some form of council wars.

Everyone agrees that governments and public officials function better when peace prevails. While there is no prescription that can miraculously cure a case of council wars, there are a few techniques that might diminish their impact:

1. Don’t confront people at board meetings with information or allegations that they could have been furnished prior to the meeting.

2. If you really have a question to ask, wait for a real answer.

3. Don’t reject ideas you didn’t think of first.

4. Use an egg-timer to delay immediately sending nasty e-mails.

5. Write out and read your response to controversial issues and give copies of your carefully-crafted words to the press.

6. Really, really listen to compromise suggestions. At rare and golden moments, be willing to admit that your previously held position might have been incorrect. Remember Mark Twain’s quote, “Loyalty to a petrified opinion never yet broke a chain or freed a human soul in this world – and never will.”

7. Praise your natural opponent when that individual surprises you with a cogent idea or well thought-out position.

8. Try to creatively expand your power base.

9. Don’t let anger or sarcasm use you.

10. Listen to suggestions from people you respect.

11. Crush your opponent only when to do so really helps your cause, and when you can actually accomplish the crushing effectively. This last technique is presented somewhat tongue-in-cheek, but can be compared to the often-used parenting tool -- “pick your battles.”

To learn more about this session, and for a copy of our handout and PowerPoint materials, visit our website at www.ancelglink.com.