Appellate Court Rules in Favor of Wind Farm Developer

Appellate Court Rules in Favor of Wind Farm Developer

  Thursday, August 07, 2025    Julie Tappendorf

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An Illinois municipality enacted a zoning regulation that restricted the generating power of wind energy conversion systems. A wind farm developer that sought to construct a wind farm on land outside the municipality but within 1.5 miles of its limits sued the municipality, claiming the zoning regulation was constitutionally invalid and outside the scope of the municipality's authority. The trial court ruled in favor of the municipality, but the Appellate Court reversed in Hickory Wind, LLC v. Village of Cedar Point.

After a municipality adopted a zoning regulation that prohibited any wind energy conversion structure or wind turbine designed to generate more than 120% of the electricity demand for the parcel on which it is located in the municipality and in the area within 1.5 miles of the municipality, a wind farm developer (Hickory Wind, LLC) filed a lawsuit challenging the regulation. The trial court found in favor of the municipality, holding that Hickory Wind failed to offer evidence that the zoning regulation exceeded the municipality's authority or was constituted impermissible exclusionary zoning, and that any "as-applied" challenge was not yet ripe. That ruling was appealed.

On appeal, the Illinois Appellate Court reversed the ruling in favor of the municipality and ruled in favor of Hickory Wind on its "exclusionary zoning" claim. The Appellate Court noted that a zoning ordinance is "impermissibly exclusionary if the affected activity is effectively prohibited anywhere within the municipal limits." In this case, the Appellate Court determined that the zoning regulation on wind farms was not a "mere limitation" or restriction, but an outright ban. The Court acknowledged that municipalities have the authority to place reasonable limitations on things like height, blade length, tower density, and the like but that a regulation that restricts energy generation in such a way that it renders commercial wind power economically impossible is "both a violation of public policy and is also, in effect, an unauthorized ban." Because the municipality was non-home rule, it had to rely on statutory authority to regulate and the Court held that state law permitted regulation, but did not expressly authorize municipalities to ban commercial windmills. The Court declined to address the constitutional arguments since it resolved the case on non-constitutional grounds. 

There was a dissenting opinion in the case that would have deferred to the municipality on its own zoning regulations because state law specifically permits regulations of wind farms and no regulatory scheme preempts the municipality's zoning ordinance. The dissent also would have acknowledged the "potential impact that proposed 17 650-feet-tall windmills (taller than the St. Louis Arch) will necessarily have on the value of nearby homes and the possible chill they may place on subsequent residential and commercial development."

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Illinois Governor Signed a Number of Bills on August 1st

Illinois Governor Signed a Number of Bills on August 1st

  Wednesday, August 06, 2025    Julie Tappendorf

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The Illinois Governor signed a number of bills into law on Friday, August 1st, including the following that affect local governments:

HB 42 - Authorizes library boards to charge nonresident library fees on a quarterly or biannual basis, rather than in one lump sum.

HB 1910 - Requires libraries to maintain a supply of opioid antagonists and have at least one employee trained to identify the signs of opioid overdose present at the library during operating hours to administer an antagonist. Effective January 1, 2026. As we have reported previously, this bill only amends the Local Library Act and does not amend the Library District Act.

HB 2336 - Amends the Fire Protection District Act and the Illinois Municipal Code to authorize fire districts and municipalities to charge reasonable fees from assisted living or nursing home facilities for lift-assist services. Those fees cannot exceed the actual personnel and equipment costs for all services rendered in connection with the lift-assist service. Effective January 1, 2026.

SB 1701 - Modifies the definition of "supervisor" for police officers. Effective July 1, 2026.

SB 1195 - Amends the Illinois Police Training Act to require instruction for probationary law enforcement officers on trauma-informed programs, procedures, and practices. Effective January 1, 2026.

HB 32 - Amends the Township Code to permit a temporary deputy township supervisor to administer a township's general assistance program and allows township parks and recreation departments to employ minors for youth sports activities.

HB 1367 - Amends provisions of the Township Code to modify a township's use and disposition of open spaces. Effective January 1, 2026.

SB 1612 - Raises the competitive bid threshold to $60,000 for the purchase of supplies or materials for park districts, conservation districts, and forest preserve districts (competitive bids for "work," as defined by the statute, remains at $30,000).SB 1380 - Authorizes counties and municipalities to use a state or locally-owned utility pole and public right of way for public safety purposes. Effective January 1, 2026.

SB 2285 - Amends the Vehicle Code to update the definition of bicycle to include low-speed electric bikes. Effective January 1, 2026. 

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Seventh Circuit Finds University's Social Media Page to be a Public Forum and its "Off Topic" Comment Rule Unconstitutional

Seventh Circuit Finds University's Social Media Page to be a Public Forum and its "Off Topic" Comment Rule Unconstitutional

  Tuesday, August 05, 2025    Julie Tappendorf

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We reported previously about a Wisconsin federal district court case that determined that a University social media page was a non-public forum, and ruled against a former student who challenged the University's deletion of her comments from the University's accounts. That 2022 ruling had been appealed to the Seventh Circuit Court of Appeals, which just recently issued an opinion reversing the district court and finding that the University's social media page was a limited public forum, and the University's actions violated the former student's free speech rights. Krasno v. Mnookin (7th Cir. August 1, 2025). 

The University of Wisconsin-Madison operates Facebook and Instagram pages where it communicates with students, faculty, and the general public. The University moderates its social media accounts in several ways, including hiding or deleting comments the University finds to be "off-topic," and using a "keyword filter" that hides comments that include words or phrases the University includes in the filter, such as "lab," "animal testing," "kill animals," and others. The University also turns off comments on certain posts to prevent users from commenting. A former student who worked in the primate testing center of the University sued the University after she claims her comments were automatically hidden or deleted by the University in violation of her First Amendment rights. In 2022, a federal district court ruled that the University's social media pages were "nonpublic forums" because the University had, by policy or practice, restricted comments by banning "off topic" comments, so the University's actions did not violate the former student's free speech rights.

The former student appealed, and the Seventh Circuit Court of Appeals rejected the district court's ruling that the University's social media pages were non-public forums. Instead, the Seventh Circuit ruled in favor of the former student on several grounds, holding that the interactive spaces on the University's social media pages (i.e., the comment section) were limited public forums and the University's "off topic" comment rule as applied to the former student was unconstitutional. 

The Seventh Circuit determined that the interactive space on the University's social media pages (i.e., the space where private users can post comments) was not government speech nor a traditional public forum, nor a nonpublic forum. Instead, the Seventh Circuit held that the interactive space on the University's social media pages was a "limited public forum" because it was opened up for the purpose of allowing the discussion of certain topics. The Seventh Circuit likened the University's social media page to the City of Boston's flag pole which the U.S. Supreme Court had found to be a public forum because Boston had opened its pole up to private groups to display their flags. Here, the Seventh Circuit found that the University opened its comment section on its social media pages to speech by private users.  

In a limited public forum, governments can establish restrictions, but those restrictions must be reasonable and viewpoint neutral. The Seventh Circuit applied that test to the University's "off topic" comment rule and found it to be unconstitutional because the University's use of a filtering program to hide comments that included certain words and phrases relating to animal testing was unreasonable and constituted viewpoint discrimination against the former student's anti-animal testing and pro-animal rights viewpoint. The Seventh Circuit also found the University's "off topic" social media statement to be too open-ended, inflexible, and vague, and the University's enforcement to be too discretionary to survive a First Amendment analysis. As a result, the Seventh Circuit reversed the district court's ruling in favor of the University, and ordered the district court to enter judgment in favor of the former student on her First Amendment claims.

There was a dissenting opinion that would have found the University's social media pages to be a nonpublic forum, similar to the National Portrait Gallery or the letters section of the University's "On Wisconsin" magazine. 

The Seventh Circuit's ruling that the University's social media pages are public forums is consistent with other federal courts of appeals that have analyzed similar challenges. We noted in our post about the district court ruling that we thought the district court's finding that the University's social media accounts were nonpublic forums was an outlier, and it is not surprising that the Seventh Circuit ruling last week was more inline with those other rulings. Governments who enforce an "off topic" comment rule may want to consult with their legal counsel to advise them whether this ruling might have an impact on their own social media moderation activities.

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Appellate Court Upholds Dismissal of Residents' Case Against Village for Flooding

Appellate Court Upholds Dismissal of Residents' Case Against Village for Flooding

  Monday, August 04, 2025    Julie Tappendorf

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Homeowners sued a municipality, claiming that the municipality was responsible for recurrent, temporary flooding in their basements over the course of several years. Specifically, they claimed that the flooding violated the "takings clause" of the U.S. Constitution and constituted a nuisance and trespass to their properties, and that the municipality should be held liable because the municipality approved the development in a flood zone. The municipality filed a motion to dismiss the case, arguing that their claims were not timely brought and did not state a valid cause of action. The trial court agreed, and dismissed the case.

On appeal, the Illinois Appellate Court upheld the dismissal of the homeowners' case against the municipality. First, the Court determined that the complaint did not include any allegations establishing that the municipality caused the recurrent, temporary flooding of the homeowners' basements. The Court noted that the homeowners did not claim the municipality constructed a structure that altered the flow of the river or caused the properties to be flooded, nor did the municipality create the rain, river, or floodplain. Instead, the Court found that the municipality did nothing more than allow the homeowners and their predecessors to "act upon their own choices" in purchasing a home in this development. As a result, the "takings" claim was properly dismissed by the trial court.

Second, the Court determined that the homeowners did not allege that their flooded basements resulted from the municipality's use of its own property, so the nuisance claim was also properly dismissed.

Third, the Court held that the flooding of the homes was caused not by the municipality's approval of construction plans, but by natural processes such as substantial rainfall, porous soil, and a shallow water table. As a result, the homeowners' trespass claim was also properly dismissed.

In sum, the Appellate Court determined that the trial court properly dismissed the homeowners' lawsuit because it did not state a valid cause of action against the municipality. Billie v. Village of Channahon.

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Residents of Mobile Home Park Entitled to Injunctive Relief for Water Shut Off

Residents of Mobile Home Park Entitled to Injunctive Relief for Water Shut Off

  Thursday, July 31, 2025    Julie Tappendorf

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An Illinois Appellate Court recently ordered a city to restore water service to a customer whose water had been shut off for nonpayment. Holmberg v. Kewanee Partners.

Residents in a mobile home park pay a monthly fee to the mobile home park owner for their water service, along with their rent payments. The owner of the mobile home park was then responsible for paying the water bill to the city for the entirety of the mobile home park's water service, which was served by a consolidated water service line. The mobile home park became the subject of a foreclosure action, and the park was placed in receivership. While in receivership, the city issued a water bill to the mobile home park for $500,000, reflecting delinquent payments for water service to the mobile home park and other properties. The city's notice stated that water service would be shut off to individual mobile homes in eh park if payment was not received by June 3rd. A few days prior to that deadline, one of the residents of the mobile home park filed a lawsuit against the city, claiming that terminating her water service would violate her constitutional rights. She also filed a request for a temporary restraining order (TRO) to stop the city from shutting off water to her mobile home. Other residents joined the lawsuit.

The trial court granted the original plaintiff's TRO, stopping the city from shutting off water to the residents' mobile homes. However, the trial court denied relief to some of the other plaintiff-residents in the mobile home park, and one of those residents appealed to the Appellate Court.

The Illinois Appellate Court determined that the trial court should have granted injunctive relief to other plaintiff-residents whose water service was disconnected. In this situation, the court determined that the mobile home park owner was the party responsible to pay for water service, and the residents who filed a lawsuit against the city had the right to receive water from the city while the lawsuit proceeded. The court rejected the city's argument that the residents whose water was already disconnected were not entitled to relief. The court also noted that the residents had established that they were making payments for water service to the receiver. 

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Courts Decide Firefighter Pension Cases

Courts Decide Firefighter Pension Cases

  Monday, July 28, 2025    Julie Tappendorf

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Two on-duty disability pension cases were decided by the Illinois Appellate Courts recently, with one court finding in favor of the firefighter-applicant and the other for the Pension Board.

In Boyles v. Bolingbrook Firefighters Pension Fund, a firefighter filed an application for on-duty disability benefits relating to a back injury. The firefighter claimed he injured his lower back while helping to lift an injured person on a stretcher. The Pension Board determined that the firefighter was disabled, but did not qualify for a line-of-duty disability pension. On appeal, the trial court upheld the Pension Board's decision but the Illinois Appellate Court reversed and sent the case back to the Pension Board to award the firefighter a line-of-duty disability pension. The Appellate Court found the testimony of certain medical professionals that determined that the injury was caused by the performance of his firefighter duties to be more persuasive than the testimony of those medical professionals that found otherwise.

In Witteman v. Brookfield Firefighters Pension Fund, a firefighter filed an application for on-duty disability benefits relating to a back injury. He claimed he injured his back while helping lift an overweight patient. After conducting a hearing, the Pension Board denied the on-duty disability pension, citing to various inconsistencies in the firefighter-applicant's testimony about the incident, including that he changed his story as to how the injury occurred, his failure to report the injury to coworkers, and his evasive demeanor at the Pension Board hearing. The Pension Board also found testimony of his coworkers to be credible to support a finding that the firefighter's injury did not occur as he claimed. On appeal, both the trial court and Appellate Court upheld the Pension Board's denial of the line-of-duty pension. While the Appellate Court acknowledged that there was some inconsistency in coworkers testimony, they noted that all of his coworkers testified that the firefighter-applicant did not take part in lifting the patient onto a stretcher to transport him to the ambulance as he claimed.

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Appellate Court Reverses Dismissal of Challenge to Rental Inspection Ordinance

Appellate Court Reverses Dismissal of Challenge to Rental Inspection Ordinance

  Wednesday, July 23, 2025    Julie Tappendorf

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A municipality adopted a rental ordinance that requires annual inspections of rental properties. The ordinance requires landlords to conduct background checks for any new adult tenant and provide proof of that at each inspection. It also requires landlords to incorporate a "crime free agreement" as an addendum to each lease. A landlord of a rental property with 21 units, as well as a tenant in that property, filed a lawsuit against the municipality to challenge the ordinance. Specifically, the lawsuit alleged that the annual inspections were an unconstitutional warrantless and unreasonable search and that the background check requirement violated rights to privacy and equal protection, among other claims.

The municipality filed a motion to dismiss the lawsuit, which the trial court granted. The trial court found that the defendants' facial challenge to the ordinance failed because they did not adequately allege that warrantless searches took place. The trial court also determined that the municipality had a legitimate interest in ensuring crime-free neighborhoods and that all landlords and tenants were treated the same, so there was no equal protection violation.

The defendants appealed, and the Illinois Appellate Court agreed with the trial court, in part, and upheld the dismissal of the defendants' "facial" challenge to the ordinance. The Court also upheld the dismissal of the defendants' right to privacy challenge to the background check requirement. However, the Appellate Court did not agree with the dismissal of the defendants' "as applied" challenge to the ordinance, and remanded those claims back to the trial court for further proceedings. The Appellate Court determined that the defendants' raised a viable argument that the ordinance, as enforced, may have violated the defendants' constitutional rights because the municipality imposed fines when an inspection was not allowed, raising potential questions of whether the ordinance enforcement violated constitutional rights against warrantless searches. The Appellate Court did, however note that the defendants would not be entitled to damages under the Tort Immunity Act and any relief they might obtain is limited to declaratory or injunctive relief.

DPH Aurora Properties LLC v. City of Aurora

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PAC Issues 8th Binding Opinion on FOIA Challenge

PAC Issues 8th Binding Opinion on FOIA Challenge

  Wednesday, July 16, 2025    Julie Tappendorf

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In March 2025, a news organization submitted a FOIA request to a school district seeking a copy of an email attachment sent by the school district’s board president to other board members. The attachment related to a billing dispute between the school district and its former legal counsel. The school district denied the request citing various FOIA exemptions.

After the news organization submitted a request for review with the Illinois Attorney General's Public Access Counselor (PAC) challenging the denial of their request, the PAC issued its eight binding opinion of 2025, concluding that the school district improperly withheld the responsive record. PAC Op. 25-008.

First, the PAC determined that the requested record was not exempt from disclosure pursuant to Section 7(1)(m) of FOIA, which exempts attorney-client privileged communications. The PAC acknowledged that billing invoices or statements containing confidential, privileged communications between a public body and its attorney for the purpose of seeking or providing legal advice are protected from disclosure under Section 7(1)(m) of FOIA. The PAC also acknowledged that billing invoices or statements describing the nature of services performed, a public body’s motive for seeking legal representation, or litigation strategy, are also protected from disclosure pursuant to Section 7(1)(m) of FOIA. Here, however, the PAC determined that the contested record was not exempt from disclosure pursuant to Section 7(1)(m) because it did not reveal the substance of matters for which the school district sought legal advice or any legal advice the school district’s former attorneys provided while acting as their legal advisor—rather, the record broadly pertained to a billing dispute between the school district and its former legal counsel. 

Second, the PAC rejected the argument that several Illinois Supreme Court Rules of Professional Conduct (Rules) prohibited the school district from disclosing the contested record. Specifically, the PAC found that the Rules apply to and govern the conduct of attorneys, not their clients. In this case, the PAC determined that the Rules do not specifically prohibit public bodies from disclosing non-exempt public records in response to a FOIA request.

Lastly, the PAC found that the contested record was not exempt from disclosure pursuant to FOIA’s deliberative process exemption in Section 7(1)(f) of FOIA because the record did not reflect deliberations with a third party acting on the school district’s behalf. Instead, the PAC opined that the contested record was a communication to the school district from its former legal counsel, which, in that correspondence, was acting with independent interests that were not aligned with the school district’s interests at the time it received the correspondence. 

Post Authored by Eugene Bolotnikov, Ancel Glink

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Quorum Forum Podcast Ep. 95: Legislative Update

Quorum Forum Podcast Ep. 95: Legislative Update

  Tuesday, July 15, 2025    Julie Tappendorf

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After the Illinois General Assembly concluded its spring session, Ancel Glink’s Eugene Bolotnikov joined the Quorum Forum Podcast to talk about recent legislation local government should know, including updates on veteran housing, grant opportunities for libraries, law enforcement hiring practices and more. You can listen here: Episode 95: Legislative Update

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Court Finds Public Body Properly Denied FOIA Request for Fatal Accident Records

Court Finds Public Body Properly Denied FOIA Request for Fatal Accident Records

  Monday, July 14, 2025    Julie Tappendorf

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An Illinois Appellate Court issued an opinion in favor of a government body after a media outlet filed a lawsuit challenging its response to the media's FOIA request for records pertaining to a fatal accident. NBC Subsidiary v. Chicago Police Department.

An investigative television producer submitted a FOIA request to a municipal police deparrment (CPD) and the Office of Emergency Management and Communications (OEMC) requesting various records relating to a fatal hit and run accident. CPD denied the request, citing various exemptions including that state law prohibited release of the officer body worn camera recordings, and that release of other records would interfere with pending law enforcement proceedings or would obstruct an ongoing criminal investigation. The OEMC also denied the request submitted to it for police observation or surveillance camera recordings on the basis that release would impede CPD's open investigation

The requester filed a lawsuit against CPD and OEMC, and the trial court ruled against the requester, finding that the denials were proper under FOIA. The trial court found persuasive an affidavit of a CPD officer that detailed how release of the requested records would compromise the current investigation because the perpetrator was still at large and release of the requested records could negatively affect the CPD's ability to obtain witness cooperation, among other things.

The requester appealed, arguing that the officer's affidavit was insufficient to satisfy CPD's and OEMC's obligations under FOIA to prove by clear and convincing evidence that release of the withheld records would interfere with pending or reasonably contemplated law enforcement proceedings. The Appellate Court disagreed, finding that the officer's affidavit contained sufficient details to meet the statutory burden, and that the affidavit was not simply a conclusory or generic statement as the requester claimed.

The Appellate Court also held that the requester was not entitled to redacted versions of the law enforcement records at issue, finding that the case involved a small number of records, and there was nothing to suggest that the records contained information that was not exempt. So, the Court held that the records were properly withheld in their entirety in this case.

The Appellate Court also found no merit in the requester's argument that the voluntary disclosure of certain information in the traffic crash report undermined a denial of other records.

Finally, the Court rejected the requester's argument that the body worn camera recordings should be released because the witnesses and victim did not have a "reasonable expectation of privacy" under the Body Camera Act because their encounter with officers was in a public place. The Court noted that the phrase "reasonable exeptation of privacy" in the Body Camera Act was dependent on the context of the law enforcement encounter and the potential distribution of the recording, so that a reasonable person engaging with law enforcement would expect that a recording would not be publicly disseminated to the news media or public at large, even where the encounter is on a public street. The Court also acknowledged that individuals who have just witnessed a traumatic incident such as a fatal car accident would not reasonably expect the police to release video to the public of their vulnerable state or that a person receiving treatment in an ambulance would not reasonably expect the police to release video footage of their treatment.

In sum, the Court upheld the CPD and OEMC's denials of the requester records in their entirety.

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Seventh Circuit Allows First Amendment Retaliation Case to Continue

Seventh Circuit Allows First Amendment Retaliation Case to Continue

  Wednesday, July 09, 2025    Julie Tappendorf

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The Seventh Circuit Court of Appeals recently allowed a lawsuit filed by a deputy sheriff of a county sheriff's department who claimed he was retaliated against for exercising his First Amendment rights to move forward. Reilly v. Will County Sheriff's Office.

In 2017, a deputy sheriff in a county sheriff's department announced he was running a campaign for county sheriff against his boss. During his campaign, the deputy publicly criticized his boss. While the campaign was ongoing and prior to the election, the deputy took a promotional examination and was placed first on the sergeant promotional list. The sheriff had the ultimate decision on the sergeant promotion, and between 2018 and 2019, the sheriff selected five other candidates on the promotional list to be promoted to sergeant. Ultimately, the deputy lost the election, and his boss was relected as sheriff.

The deputy filed a lawsuit against the sheriff's office and the sheriff, claiming they retaliated against him because of his criticism of the sheriff during the 2017 campaign. The deputy claimed the sheriff admitted publicly that he passed the deputy over for promotion because of his criticism during the 2017 campaign. The defendants filed a motion to dismiss arguing the deputy's complaint did not state a valid claim and that it was untimely because it was filed more than 2 years after the promotional list expired. The district court agreed with the defendants, and dismissed the case and did not allow the deputy to file an amended complaint.

The deputy appealed the dismissal of his case to the Seventh Circuit Court of Appeals, which reversed the dismissal, finding that the complaint stated a plausible claim for First Amendment retaliation, and that the district court applied too high of a standard in not allowing the deputy to file an amended complaint. 

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Court Upholds Termination of School Counselor for Speech at Rally

Court Upholds Termination of School Counselor for Speech at Rally

  Wednesday, July 02, 2025    Julie Tappendorf

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A Wisconsin school district terminated a school counselor after she delivered a profanity-laden speech denouncing gender ideology and transgenderism and their impact on children at a rally at the state capitol. The guidance counselor filed a civil rights lawsuit against the school board and three school officials claiming she was unlawfully fired in retaliation for exercising her First Amendment right to freedom of speech. The district court denied her request for a preliminary injunction and dismissed her First Amendment claim, finding that the school district's interests as a public employer outweighed her speech rights under these circumstances. On appeal, the Seventh Circuit Court of Appeals upheld the dismissal in Darlingh v. Maddaleni (7th Cir. July 2, 2025).

After video of her speech at the rally appeared on YouTube, the school opened an investigation, ultimately firing her for violating school policies that prohibited abusive and intimidating language and bullying. The school also explained that her speech at the rally impaired her ability to perform as a guidance counselor, damaged the school's reputation, and undermined its mission to provide an equitable and supportive learning environment for all students.

On appeal, the Seventh Circuit Court of Appeals applied the U.S. Supreme Court's Pickering balancing test to the counselor's First Amendment claim. That test requires a court to determine whether the public employer's interests outweigh the employee's free speech rights. In applying that test, the Seventh Circuit examined whether the counselor's speech was constitutionally protected - i.e., was she speaking as a citizen on a matter of public concern? The Seventh Circuit determined that while the counselor's speech interests were strong, and the topic she spoke on was a matter of intense public concern, the context of her speech and her role as a school guidance counselor was important in the analysis. In balancing the school district's interest that guidance counselors have an "inordinate amount of trust and authority," against the guidance counselor's speech at the rally which the court found to be "a harsh, angry, and profanity-filled public pledge...that was hardly compatible with her obligation to build student and parental trust," the Seventh Circuit concluded that the school district's interests outweighed the guidance counselor's free speech rights in these circumstances. As a result, the guidance counselor's speech fell outside the scope of the First Amendment's protection as applied to public employment. 

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