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Blog comments do not reflect the views or opinions of the Author or Ancel Glink. Some of the content may be considered attorney advertising material under the applicable rules of certain states. Prior results do not guarantee a similar outcome. Please read our full disclaimer

Thursday, September 29, 2011

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

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/.

Tuesday, September 27, 2011

Checklist for Drafting a Social Media Policy (Part 2)

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.

Monday, September 26, 2011

Checklist for Drafting a Social Media Policy (Part 1)

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.

Friday, September 23, 2011

The Quiet Revolution in Land Use Control – 40 Years Later

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 40th 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.

Wednesday, September 21, 2011

New Law Requires Open Meetings Training for Elected and Appointed Officials

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

Monday, September 19, 2011

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

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.

Wednesday, September 14, 2011

Beware of Disqualifying Conflict of Interest

Government conflicts of interest are usually governed by state constitutions, statutes, or the common law, or in some states a combination of all three.  While these laws provide some general guidance, this area of the law often turns on specific facts and legal interpretations.  So, when does an “interest” become a disqualifying conflict of interest, requiring the official to take some action (such as disclosure, recusal, or even resignation of office)?

As a general rule, a financial or pecuniary interest in a transaction before a local government body of which an official is a member will be a disqualifying conflict of interest.  Depending on state rules, this may require the official to disclose his or her interest or recuse him or himself from discussion and voting on the matter, or both.  In Illinois, certain financial interests in a contract with the governmental body will require the official to resign from office.  For example, if a local government official owns a company that is proposing to contract with the local government body for services in excess of the statutory minimum amount, disclosure and recusal will not be enough to protect the official from a disqualifying conflict of interest.  Either the official must resign from office before any action is taken to approve a contract with the company, or the company must forego work for the local government. While some may see this as a harsh outcome, courts routinely hold that the public interest in ethical contracting outweighs any financial sacrifice a local government official must make during his or her term of office.

The United States Supreme Court recently addressed the issue of local government conflicts in Nevada Commission on Ethics v. Carrigan.  In that case, a city councilman voted in favor of a casino project that involved his friend and campaign manager.  Although the councilman had disclosed his relationship prior to his vote, the Nevada Ethics Commission censured him because state law prohibits elected officials from voting on matters that benefit family, close friends or business associates.  The United States Supreme Court upheld Nevada’s ethics law and rejected the Nevada Supreme Court’s holding that a legislator’s vote is protected speech under the First Amendment.

It can be difficult for a public official to determine whether he or she has a conflict of interest because these issues are fact-specific and require interpretation of constitution and statutory language and case law.  Moreover, many conflicts of interest laws involve criminal penalties.  When in doubt about a particular relationship or interest, a public official should contact the local government's attorney for advice on how to proceed. 

Monday, September 12, 2011

Can a Municipality Declare Bankruptcy?

Given the current economic climate, it is not surprising that local governments throughout the country are experiencing financial difficulties.  Lower property values, coupled with tax caps, have resulted in a reduction in the amount of real estate taxes collected by local governments.  Little or no new development also means less permit fees. Sales taxes have also decreased due to declines in consumer purchases. In an attempt to balance their budgets, many local governments have reduced the number of employees through attrition and layoffs and have implement salary freezes, and in some cases reductions.  Others have deferred capital improvement projects.  Most local governments are operating “leaner” than ever before.

But what happens when a municipality finds itself with more expenditures and obligations than revenue, and no more fat to be cut from the budget?  Can a municipality seek relief under federal bankruptcy laws? 

Chapter 9 of the Bankruptcy Code authorizes a municipality to file for bankruptcy subject to certain eligibility requirements.  In addition to requiring insolvency and a willingness to agree to a debt restructure plan, the municipality must be specifically authorized by state law to be a debtor under Chapter 9.  Not all states have enacted express statutory authority, however, including Illinois.  And, in fact, a federal bankruptcy court recently dismissed a Chapter 9 bankruptcy petition filed by Washington Park, Illinois for that very reason. 

Does that mean that an Illinois municipality in fiscal distress has no mechanism for relief?  Not entirely.  A municipality with a population under 25,000 may seek approval to file under Chapter 9 through the recommendation and approval of a financial planning and supervision commission under the Local Government Planning and Supervision Act, 50 ILCS 320/1 et seq.  Larger municipalities that do not qualify under this Act may find relief under the Financially Distressed City Law, 65 ILCS 5/8-12-1 et seq.  This law provides debt restructuring relief to financially distressed home rule municipalities who qualify under the eligibility requirements of the statute. 

While neither of these options will provide Illinois municipalities a direct path to a Chapter 9 bankruptcy proceeding, and both involve complex and lengthy procedures, they may provide local governments in severe economic distress with some option for relief.

Friday, September 9, 2011

TIF Reporting Deadline Approaching

All Illinois municipalities with a tax increment financing district (TIF) must file an annual report for each TIF with the State of Illinois Comptroller's office no later than 180 days after the end of the fiscal year or as soon as audited financial statements are available.  For most communities with a fiscal year ending April 30th, that means filing a report no later than the end of October. 

Each TIF report must contain certain information and supporting documents, including the following:
  • A description of any amendments to the redevelopment plan.
  • A certified audit if the TIF has accumulated funds in excess of $100,000.
  • A certificate by a certified public accountant.
  • A statement of activities or projects undertaken in the TIF.
  • A description of any property purchased in the TIF.
  • An accounting of the TIF fund, including obligations issued by the municipality and expenditures.
  • A list of all intergovernmental agreements and any funds transferred or received pursuant to an agreement.
  • A certification by the TIF Administrator that the report is complete and accurate.
  • A certificate of compliance signed by the Mayor or Village President.
  • An opinion by legal counsel that the municipality is in compliance with the TIF Act.
Although there is no statutory penalty for failing to file a TIF report, a list of all municipalities who are "non-compliant" will be posted on the State Comptroller's website.  So, to avoid making the "naughty list", a community with one or more TIFs should start putting the necessary documentation together now to be ready to file by the end of October.  Also, don't forget that the Joint Review Board needs to meet on an annual basis, and that meeting should take place before the report is filed with the Comptroller.

You can find additional information about TIF reporting requirements on the State of Illinois Comptroller's website:  http://www.ioc.state.il.us/index.cfm/departments/local-government-division/tif-districts/

Tuesday, September 6, 2011

Home Used for Occasional Religious Services Does Not Qualify For Tax Exemption

In Armenian Church of Lake Bluff v. Department of Revenue, 2011 IL App (1st) 102249, a property owner filed an application for a tax exemption for his home based on the religious-use exemption in the Illinois Property Tax Code.  The home was purchased for $3 million in 2004, and the 2007 tax bill for the home (without exemption) was $38,911.11.  The owner claimed that that he was entitled to the exemption because the home included a chapel, a room used for bible study and crafts, and a parsonage for the resident pastor, who was also the owner of the home. 

The Department of Revenue reversed its earlier decision and denied the tax exemption.  The Department found that the primary use of the home was residential, and any religious use was limited to private prayer and private worship services by family and close friends.  In this recent decision, the appellate court upheld the Department's decision, finding that "section 15-40(a) of the Property Tax Code does not exempt those who erect a chapel or sanctuary within a private home and then use the space from time to time for private contemplation and religious observances...."

You can read the case at: http://www.state.il.us/court/Opinions/AppellateCourt/2011/1stDistrict/July/1102249.pdf

New Law Authorizes Zoning Hearing Procedural Rules

On August 25, 2011, Governor Quinn signed House Bill 1056 amending the zoning provisions of the Illinois Municipal Code to authorize municipalities (other than Chicago) to establish rules of procedure for zoning hearings.  The new law, Public Act 97-0552, provides as follows:

Sec. 11-13-22. Public hearing procedures for municipalities of less than 500,000.
In a municipality of less than 500,000 inhabitants, the corporate authorities may adopt or authorize the zoning board of appeals and any other board, commission, or committee that conducts public hearings under this Division to adopt rules of procedures governing those public hearings. The rules of procedures may concern participation in public hearings and the participants' rights to cross examine witnesses and to present testimony and evidence, and any other relevant matter.

Arguably, municipalities already had authority to adopt rules of procedure, and many have rules of procedure in place. However, express statutory authorization eliminates any dispute that a municipality, particularly a non-home rule one, can establish local rules of procedure for the conduct of zoning hearings.

What does this new law mean for Illinois municipalities?  While the law does not require a municipality to adopt rules for its zoning hearings, a municipality should consider establishing, at a minimum, a basic set of rules and procedures for its hearing bodies.  As many communities have discovered, one controversial zoning application can turn what should otherwise be a straightforward public hearing process into something akin to a full blown trial.  A defined set of procedural rules that addresses issues that most plan commissions and zoning boards of appeals rarely, if ever, encounter (such as the right of cross-examination and subpoenas) will promote efficiency and fairness in the hearing process. 

More information about this new legislation can be found at:

Saturday, September 3, 2011

Recent Changes to FOIA are Government-Friendly

House Bill 1716, recently signed into law on August 26, 2011, made three significant changes to the Illinois Freedom of Information Act. 

The first change extends the time period from five days to 21 days for responding to requests filed by “recurrent requesters.”  Specific triggers for identifying a requestor as a recurrent requestor are set out in the new law.  News media and non-profit, academic, and scientific organizations are expressly exempted from this definition.

The second change authorizes public bodies to charge a fee of $10 per hour after the first 8 hours for personnel costs when responding to commercial requests. This change also eliminates commercial requests from review by the Public Access Counselor.

The third change eliminates the pre-approval process for the “personal privacy” or “draft document” exemptions.  Under the previous language, public bodies could not deny a request based on either of these two exemptions without the consent of the Public Access Counselor. 

You can find the legislation at: http://www.ilga.gov/legislation/publicacts/fulltext.asp?Name=097-0579

Illinois Municipal League Annual Conference, September 15-17, 2011

Local government officials from across the state will be in Chicago for the Illinois Municipal League’s annual conference. Don’t miss the following two sessions at which I am a panelist:
Zoning Hearings 10 Years After Klaeren, September 17, 2011, 9:15 a.m. - 10:15 a.m.
Ten years after the Illinois Supreme Court’s decision in the Klaeren case and five years after the General Assembly enacted legislation in response to that case, municipalities have been provided additional statutory powers to manage their public hearings concerning zoning. What is the extent of this new authority and how does it affect the due-process rights of participants? This session will provide a background on the new authority given to municipalities and will provide tips on designing procedures for conducting zoning hearings.

Council Wars and Power Plays: How to Avoid them and How To Survive Them, September 17, 2011, 1:30 p.m. – 2:30 p.m. & 2:45 p.m. – 3:45 p.m.
Are you finding a lack of “fun” in your council’s dysfunction? Nobody benefits when a board is in crisis except the lawyers. This 2-part session will examine challenging board dynamics and relationships, discuss which officers have which powers, discuss strategy options, deployment tactics, mediation opportunities, and peaceful solutions. The second hour will be a review and refresher of fundamental municipal laws and procedures related to board and committee meetings, voting and veto tactics, parliamentary matters, conflicts, and related issues. Bring your questions.

Hiring Experts in Land Use Cases

Retaining a specialist to testify in a land use case can make the difference between winning or losing a case.  Land use cases are often “expert heavy” cases, requiring the testimony of land planners, appraisers, traffic engineers, and noise and lighting consultants. Prior to hiring an expert, you should review as much as possible of the expert’s publications, presented papers, and other written materials and to explore the expert’s history as a testifying witness either in depositions or at trial. An expert who has published peer review profession journal articles, chapters in texts, or books will have a strong working knowledge of all published opinions and counter opinions on the area in question. An expert witness who has published in peer reviewed publications gets the benefit of the jury understands that her research and opinions have been deemed worthy to publish.

Equally important is the expert’s ability to communicate clearly, and the expert’s personality and demeanor. An expert’s appearance and general demeanor, age, personality, honesty, intelligence, and speaking ability should be weighed. In a jury trial, it is often the personality rather than the testimony of the expert that the jury remembers. If a jury has the impression that an expert is being patronizing, they may completely disregard his opinion. Similarly, the selection of an overly shy person as an expert should be avoided, as the jury may not credit his authority.  Do not discount the “personality factor,” particularly in a jury trial.

Tweeting into Trouble?

Social networking has created a new way we socialize and conduct business and is changing the way we communicate with our friends, families, colleagues, and clients.  More than one-third of American adults have a profile page on a social networking site.  Many local governments recognize that it would be shortsighted to ignore this rapidly growing source of communication. But, in the rush to create a community Facebook page, government officials may not be aware of the legal issues unique to government use of this emerging technology. 

Are Village officials participating in a meeting when they post comments on Facebook that would be subject to the Open Meetings Act?  Are postings on a government social networking site subject to FOIA and records retention laws?  Is a public forum established if individuals can post “comments” on a community site?  Can objectionable material be removed without implicating the First Amendment?  Can employees be disciplined for derogatory Facebook comments about their employer?

Before diving too deep into the social media pool, a community should put in place a website and social networking policy. That policy should include provisions for a site moderator, standards for appropriate public interaction and posting of comments, guidelines for record retention and compliance with FOIA and the Open Meetings Act, and an employee access and use policy, at a minimum.  Disclaimers should be posted on the site reserving the right to remove submissions that the moderator finds objectionable, including vulgar language, personal attacks, or offensive comments that target or disparage any ethnic, racial, or religious group. Also key is education of government employees and officials regarding appropriate use of social networking and how use might impact the government employer.