Illinois Appellate Court Upholds Code Enforcement Agreement in Favor of Village

Illinois Appellate Court Upholds Code Enforcement Agreement in Favor of Village

  Tuesday, November 19, 2024    Julie Tappendorf

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An Illinois Appellate Court upheld a court order awarding a Village $45,000 in fines against a company that failed to timely install a fire alarm system in breach of a compliance agreement. Village of Plainfield v. Ionia Real Properties, LLC

In 2017, a real estate company purchased a vacant building within the Village. For the following year, the company repeatedly failed fire safety inspections for failure to install a proper fire alarm system. In 2018, the company and the Village entered into an agreement to resolve the issue. The compliance agreement required the company to install a fire alarm system within 60 days. It also provided that a $500 per day fine would be assessed if the company failed to install the system. 

When the fires system was not installed in the time period required by the compliance agreement, the Village filed a lawsuit against the company, asking the court to impose the fine for the company’s late compliance. Initially, the court ruled against the Village but in response to the Village's motion to reconsider, ultimately ruled ruled in favor of the Village and awarded it $45,000 in fines pursuant to the compliance agreement.

On appeal, the company argued the circuit court erred when it:

(1) ruled in favor of the Village;

(2) denied the company’s motion to disqualify the Village’s attorney;

(3) granted the Village’s motion to stop the company’s subpoenas for witnesses; and

(4) entered a $45,000 judgment against the company.

The Appellate Court upheld the circuit court's ruling in favor of the Village, finding that the delay on installing the fire alarm system was due solely to the company’s failure to sign a price quote with the installation company until four days prior to the agreement’s 60-day deadline, which led to the late work and resulted in a material breach of the compliance agreement. The Appellate Court also rejected the company's argument that the Village attorney should have been disqualified or that the subpoenas were necessary. Finally, the Appellate Court noted that the compliance agreement clearly stated the company would be fined $500 per day if it failed to install the fire alarm system by the agreement's deadline, which amounted to a $45,000 penalty. 

Post Authored by Daniel Lev & Julie Tappendorf, Ancel Glink

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Appellate Court Rejects Due Process Claims in Nuisance Case

Appellate Court Rejects Due Process Claims in Nuisance Case

  Thursday, November 14, 2024    Julie Tappendorf

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The City of Chicago filed a lawsuit against the unknown heirs of the deceased owner of a single-family home claiming the property had been neglected and was an unsafe public nuisance. In City of Chicago v. Dzendrowski, an Illinois Appellate Court rejected claims by family members of the deceased owner that they were denied due process because they were not properly notified of the City's lawsuit.

After the City discovered numerous violations of the City Code including warped flooring, missing electrical and plumbing fixtures, and damage to the home’s exterior from decaying trees, it searched the property’s title records to attempt to locate the heirs of the deceased owner. The City found eight possible relatives, including the two individuals involved in this lawsuit, and for over a year, the City made numerous unsuccessful attempts to serve the individuals. Eventually, it sought permission from the court to serve notice in a newspaper.  

At the first court hearing on the City's lawsuit, the court appointed a limited receiver to take all reasonable steps to remove the nuisances. After the hearing, two relatives of the deceased owner filed motions and argued they were not properly notified of the lawsuit. The circuit court denied the motions, allowed the limited receiver to remedy the issues with the property, and the City voluntarily dismissed the case. 

The two relatives appealed to the Illinois Appellate Court, arguing, among other things, that their procedural due process rights were violated when the City voluntarily dismissed the lawsuit after the court denied the relative's motions but before they could file a counterclaim or otherwise defend against the merits of the lawsuit. The court rejected their claims, holding that the relatives had a 10-12 month period where they could have asserted a counterclaim or defense, but chose not to do so. The court said this was a reasonable time to defend against the allegations and held that their due process rights were not violated by the court's dismissal of the case.  

Post Authored by Alexis Carter & Julie Tappendorf, Ancel Glink

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Administrative Decision Reversed and Remanded Due to Lack of Factual Findings to Support Decision

Administrative Decision Reversed and Remanded Due to Lack of Factual Findings to Support Decision

  Wednesday, November 13, 2024    Julie Tappendorf

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The Bond County Community United School District 2 (District) voted to close one of its public schools and transfer its 107 students to other schools. In response to the school closing, the "Sorento Parents Committee of Ten" (Parents Committee) filed a petition with the Regional Board of School Trustees for Bond, Christian, Effingham, Fayette, and Montgomery Counties (RBST) proposing to detach the school from the District and attach its property to the Mount Olive Community Unit School District.

The RBST held a hearing on the detachment petition, and heard evidence presented by the Parents Committee, before issuing an administrative order to deny the petition. The RBST determined that the Parents Committee failed to establish that the students would receive significant direct educational benefits from switching school districts. The Parents Committee appealed the denial of its petition to the circuit court which upheld the decision of the RBST. The Parents Committee then appealed to the Illinois Appellate Court, which reversed and remanded the case back to the RBST in Sorento Parents Committee of Ten v. Regional Board of School Trustees for Bond.

The Appellate Court first reviewed the Illinois Administrative Procedure Act, which requires administrative agencies to include findings of fact and conclusions of law in their final decisions. Because the RBST ’s administrative order did not contain any factual findings or legal conclusions, the Appellate Court held that there was no basis for a reviewing court to review the decision for error. As a result of the Board’s failure to meet these requirements in issuing its final decision, the Appellate Court reversed the decision of the circuit court and vacated the decision of the RBST. The case was remanded back to the RBST for further review, evaluation, and decision.

Post Authored by Madeline Tankersley and Julie Tappendorf, Ancel Glink

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Seventh Circuit Upholds Use of Pole Camera by Police to Record Activities at Front of Home

Seventh Circuit Upholds Use of Pole Camera by Police to Record Activities at Front of Home

  Tuesday, November 12, 2024    Julie Tappendorf

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As part of a drug trafficking investigation, law enforcement installed a pole camera pointed at an individual's home. The evidence gathered from the camera, along with other evidence gathered by law enforcement, was used to charge the resident with intent to distribute methamphetamine, conspiracy to possess with intent to distribute marijuana, distribution of marijuana, among other crimes. The resident moved to suppress the evidence from the pole camera, arguing that the warrantless search violated his Fourth Amendment rights, but the district court denied the motion. He was ultimately convicted by a jury. 

The resident appealed to the Seventh Circuit Court of Appeals, which ruled against him, finding no violation of his Fourth Amendment rights. The Seventh Circuit determined that he had no expectation of privacy for activities conducted in front of and outside of the resident's home. U.S. v. House (7th Cir. November 5, 2024). The Seventh Circuit noted that the resident had taken no action to shield the activities taking place at the front of the residence, and that law enforcement's use of the pole camera provided no greater view to the activities taking place at the front of the home than could have been observed by an ordinary passerby.

Post Authored by Madeline Tankersley & Julie Tappendorf

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Quorum Forum Podcast Ep. 88 - Election Special

Quorum Forum Podcast Ep. 88 - Election Special

  Friday, November 08, 2024    Julie Tappendorf

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Ancel Glink just released Episode 88 of its Quorum Forum Podcast:  Quorum Forum 88: Election Special

The 2025 consolidated election season is kicking off with its usual verve and a host of complex issues to address. Local election officials and electoral boards have many responsibilities to make elections happen. Meanwhile, local governments are asked to enforce political sign regulations and electioneering laws. Local governments may get involved in elections themselves with their own referenda and public questions. To help listeners tackle these issues, Ancel Glink attorneys Erin Monforti and Katie Nagy update a classic Quorum Forum election special, featuring insight from Ancel Glink's own Keri-Lyn Krafthefer! 

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Court Rejects Police Officers' First Amendment Lawsuit Relating to their Personal Social Media Activities

Court Rejects Police Officers' First Amendment Lawsuit Relating to their Personal Social Media Activities

  Friday, November 01, 2024    Julie Tappendorf

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A federal district court recently rejected police officers' claims that their First Amendment rights were violated by a city after the officers were disciplined or terminated for their personal social media activities. Fenico v. City of Philadelphia.

The officers' Facebook posts were brought to light by the "Plain View Project," a database of public social media posts and comments of current and former police officers across the country. According to the district court's opinion, the database includes over 5,000 posts and comments by police officers which Plain View deemed likely to "undermine public trust and confidence in police." Over 3,000 of the posts were attributed to Philadelphia police officers according to the Plain View Project.

After the posts and comments of city police officers were brought to light, the city faced protests by a number of groups and organizations objecting to the social media activities of some of the city police officers. The city subsequently conducted an internal investigation which ultimately led to disciplinary action against many of the officers, including termination in some cases. A number of the officers filed a lawsuit against the city, claiming the city retaliated against them in violation of their First Amendment free speech rights.

The district court considered the following three factors to determine whether a government employee's free speech rights are violated: (1) whether the employee was speaking as a private citizen; (2) whether the employee spoke on a matter of public concern; and (3) whether the employee's and public's interest in the speech outweighs the government interest in avoiding disruption to government operations that could be caused by the speech. If the government employee can demonstrate they meet each of the three factors, they will prevail in a First Amendment lawsuit.

As to the first factor, the parties acknowledged that the officers spoke as "private citizens." 

With respect to the second factor, after analyzing the plaintiff-officers' social media posts, the court determined that they spoke on matters of "public concern." The court noted that even the most inappropriate, inflammatory, or controversial comments can touch on matters of public concern.

The third factor (called the Pickering Balance) required the court to balance the city's interest in avoiding significant disruption to police operations against the employee's and public's interest in the employee's speech. After analyzing the hundreds of social media posts that were part of the lawsuit (many of which are reprinted in the opinion itself), the court determined that the city established that the city's interest in protecting police operations outweighed any employee or public interest in that speech. The court noted that many of the social media posts and comments involved advocating for violence against members of protected classes, included sexist and racist imagery, etc. The city demonstrated that public confidence in these officers and the department in general was negatively impacted by the officers' social media activities, and that the activities impacted law enforcement operations for many reasons, including that the district attorney had issued letters to many of the officers that it would have to disclose their social media activities to defense attorneys in cases where the officer was involved. 

Because the plaintiff-officers did not meet the third factor required to demonstrate a First Amendment claim against the city, the court rejected the plaintiff-officers' First Amendment claims and ruled in favor of the city on all claims.

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PAC Finds Public Body in Violation for Not Publishing Notice of Change to Regular Meeting Schedule

PAC Finds Public Body in Violation for Not Publishing Notice of Change to Regular Meeting Schedule

  Monday, October 28, 2024    Julie Tappendorf

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The Public Access Counselor of the Attorney General's office (PAC) issued its 13th binding opinion for 2024, finding a public body in violation of the OMA for failing to publish notice of a change to its regular meeting schedule. PAC Op. 24-013.

An individual filed a request for review with the PAC claiming that a village board failed to comply with the OMA when it voted to move its regular meetings from the third Monday of each month to the third Wednesday of each month. Specifically, the individual claimed the village did not publish notice of this change to its regular meeting schedule 10 days prior to taking action on the change, as required by section 2.03.

The PAC reviewed section 2.03 of the OMA and distinguished between (1) a change in a single regular meeting date that would be subject to the rescheduled or special meeting notice requirements (posting 48 hours in advance) and (2) a change to a public body's regular meeting dates "going forward" which requires 10 days prior notice by publication in a newspaper and posting notice at the principal office of the public body (see excerpt of section 2.03 below):

If a change is made in regular meeting dates, at least 10 days' notice of such change shall be given by publication in a newspaper of general circulation in the area in which such body functions. However, in the case of bodies of local governmental units with a population of less than 500 in which no newspaper is published, such 10 days' notice may be given by posting a notice of such change in at least 3 prominent places within the governmental unit. Notice of such change shall also be posted at the principal office of the public body or, if no such office exists, at the building in which the meeting is to be held. Notice of such change shall also be supplied to those news media which have filed an annual request for notice as provided in paragraph (b) of Section 2.02.

Here, the PAC determined that because the village board changed its regular meeting schedule "going forward," it was subject to the 10 day prior notice requirement of section 2.03. Since the village board did not publish notice of the change in its regular meeting schedule 10 days prior to voting on that change, it violated the OMA. However, the PAC acknowledged that the village board subsequently published notice of its change to its regular meeting schedule, so no further action was necessary to remedy that violation.

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Officer's PEDA Claim Subject to CBA Grievance Procedure

Officer's PEDA Claim Subject to CBA Grievance Procedure

  Wednesday, October 23, 2024    Julie Tappendorf

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An Illinois Appellate Court recently ruled in favor of a City in a case brought by a police officer who claimed the City failed to comply with the Public Employee Disability Act (PEDA) after he was injured. Allenbaugh v. City of Peoria.

A police officer filed a lawsuit against a City claiming the City failed to comply with the terms of PEDA by denying him full pay after he was injured in the line of duty. The City argued the trial court had no jurisdiction over the officer's claim because the dispute was governed by the City's collective bargaining agreement (CBA). Specifically, the City argued that because the officer's claim would require an interpretation of the meaning of specific language contained in the CBA, it had to be resolved through the exclusive grievance procedure contained in that CBA. The officer argued that because the lawsuit involved a claim that the City violated state law, the court had jurisdiction over the claim. The trial court ruled in favor of the City, finding that because resolution of the officer's PEDA claim depended on an interpretation of the CBA, it was subject to the mandatory grievance provisions of that agreement.

On appeal, the Appellate Court agreed with the trial court that resolution of the dispute turned on an interpretation of the language in the CBA, and so the claims brought by the officer were subject to the exclusive grievance provision of the CBA. As a result, the Appellate Court upheld the ruling in favor of the City. 

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City's Limited Curfew During Protests Did Not Violate First Amendment

City's Limited Curfew During Protests Did Not Violate First Amendment

  Tuesday, October 22, 2024    Julie Tappendorf

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The Seventh Circuit Court of Appeals recently ruled in favor of a city in a First Amendment challenge to a curfew order in Knowlton v. City of Wauwatosa.

In 2020, a police officer shot and killed a black teenager. After the District Attorney's (DA) office decided not to criminally charge the officer, and anticipating that this decision might spark violence in the community, the mayor issued a limited curfew order that went into effect after the DA's announcement. The curfew temporarily restricted pedestrian and vehicular traffic on city streets for five nights and ran from 7 pm to 6 am with exceptions for people traveling to and from work, government officials, the press, and social workers. 

A group of individuals who attended protests in the city (some of whom had been arrested for violating the curfew) sued the city to challenge the curfew, claiming it violated the First Amendment among other claims. The district court ruled in favor of the city on all claims and the plaintiffs appealed to the Seventh Circuit.

On appeal, the Seventh Circuit agreed with the district court ruling in favor of the city on the plaintiff's First Amendment claims. 

First, the Court determined that the city had a "significant government interest" in enacting the curfew to protect the safety of persons and property. The Court noted that a government need not wait until violence or harm materializes to impose safety measures, and that preventative measures to promote public safety are a "basic contribution to government." The Court found the city's public safety concerns to be well founded after the city had experienced civil unrest for months leading up to the curfew. The Court also noted that the neighboring town of Kenosha had seen extensive property damage and serious physical injury in the wake of a police shooting weeks earlier. 

Next, the Court found that the curfew was narrowly tailored to keep people off the streets for a short period of time after the DA's announcement, and was not imposed arbitrarily because of a generalized fear amidst nationwide protests. It was also limited in duration, and had exceptions for certain groups of people. 

Finally, the Court held that the curfew order left plaintiffs with adequate alternative means of communication because they could protest during the daytime hours, or after the curfew expired.

In sum, the Seventh Circuit ruled in favor of the city on the First Amendment challenge to the curfew.

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Lawsuit Challenging City's Authority to Enact Vaccination Policy Dismissed

Lawsuit Challenging City's Authority to Enact Vaccination Policy Dismissed

  Monday, October 14, 2024    Julie Tappendorf

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An Illinois Appellate Court recently dismissed a challenge to a City's COVID-19 employee vaccination policy because the employees did not identify any legal authority to support their claim that the City violated the law in adopting the policy. Sokolovski et al v. Arwady, City of Chicago et al.

In 2021, the City adopted a COVID-19 vaccination policy that required every City employee, contractor, or vendor who had contact with certain persons in the City to be vaccinated against COVID-19 unless exempted. A group of City employees filed a lawsuit to challenge the policy, claiming the City had no authority to require vaccination. The case was dismissed and the employees appealed.

On appeal, the employees argued the policy was unlawful because the City did not expressly identify any state statutory authority or municipal authority for the City to adopt the vaccination policy. The employees also argued that because the policy itself did not specifically state that the Mayor or City Council created the policy, the City had no authority to adopt or enforce the vaccination policy. The City defended its policy claiming it had authority under the Illinois Municipal Code to manage its workforce and to make regulations for the promotion of health or the suppression of diseases. The Appellate Court rejected the employees' arguments, finding no support for their claim that the policy had to name a specific City official who authorized the policy and identify the express authority relied upon to enact the policy. As a result, the lawsuit against the City to challenge the vaccination policy was properly dismissed.

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Local Government Law Institute - December 6, 2024

Local Government Law Institute - December 6, 2024

  Wednesday, October 09, 2024    Julie Tappendorf

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Calling all local government attorneys -- don't forget to sign up for the 2024 Local Government Law Institute hosted by the Illinois Institute for Continuing Legal Education (IICLE). This year's conference will be held in-person at the UBS Center in Chicago and will also offer a webcast option. 

More details about the conference sessions and speakers and registration can be found here. Below is a brief summary of the sessions offered at this year's conference.

Local Government Law Institute, 2024

Friday, December 6, 2024

The conference begins at 8:55 a.m. and concludes at 4:15 p.m. (cocktail reception to follow)

UBS Tower, Chicago (and webcast)

Sessions include:

• Case Law and Legislative Update
• Due Process Considerations in Administrative Hearings
• State and Federal Tort Immunity
• Update on Takings and Impact Fees
• Lunch Panel on Parliamentary Procedures/How to Run a Meeting
• Zoning & Planning Issues and Overlap Between Taxing Bodies
• Difficult World, Difficult Issues
• From Polls to Policy: Election Law Updates
• Secondary Trauma & Imposter Syndrome: Resilience Strategies for Local Government Attorneys

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In the Zone: Seventh Circuit Dismisses Takings Challenge to City’s Short-Term Rental Regulations

In the Zone: Seventh Circuit Dismisses Takings Challenge to City’s Short-Term Rental Regulations

  Monday, October 07, 2024    Julie Tappendorf

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The Seventh Circuit Court of Appeals dismissed a lawsuit against a city that argued that the city’s shared housing ordinance constituted an unconstitutional "takings" because it prevented a condo owner from renting his property on Airbnb and other homesharing platforms. Mogan v. City of Chicago

The city’s ordinance for shared housing units allowed condominium homeowners’ associations (HOAs) to determine whether short-term rentals would be allowed in their respective buildings. When an HOA prohibited rentals, they would contact the city to have that building added to a list of prohibited buildings for short-term rentals. Renting or listing a short-term rental in a prohibited building would subject the unit owner to a $5,000 fine each day the violation continued. 

A condo unit owner in a building that had been placed on the city's prohibited building list by the HOA and property management company sued, arguing that the city’s ordinance was an unconstitutional taking under the Fifth Amendment and an inverse condemnation under the Illinois Constitution. The condo unit owner claimed he suffered financial losses because he had invested thousands of dollars to refurbish the apartment with the intent of using it as a short-term rental. The district court dismissed both claims, and the unit owner appealed.  

On appeal, the Seventh Circuit focused on language in the HOA covenants that governed the use of all units within the condo building. The covenants stated that no unit within the condominium could be leased for less than 30 days or greater than 30 days where hotel services were provided. Based on the language in the covenants that were in place at the time the owner purchases his condo unit, the court found that the owner was on notice he could not lease his unit for less than 30 days. As a result, the court reasoned that the owner could not prove the city’s ordinance had any economic impact on his unit or that the ordinance interfered with a reasonable investment-backed expectation (necessary elements to prove both the takings and inverse condemnation claims) because the unit owner never had a property right to lease his unit on a short-term basis.

Post Authored by Dan Lev & Julie Tappendorf, Ancel Glink

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