Identity of Anonymous Web Poster Protected by Illinois Court

Identity of Anonymous Web Poster Protected by Illinois Court

  Wednesday, November 30, 2011    Julie Tappendorf

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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.

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House Vote on Pension Reform Bill Expected Today

House Vote on Pension Reform Bill Expected Today

  Tuesday, November 29, 2011    Julie Tappendorf

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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.

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Deadline Approaching to Adopt Ordinance for a Referendum on Electric Aggregation

Deadline Approaching to Adopt Ordinance for a Referendum on Electric Aggregation

  Monday, November 28, 2011    Julie Tappendorf

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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. 

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Turkeys and Land Use?

Turkeys and Land Use?

  Wednesday, November 23, 2011    Julie Tappendorf

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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!

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Hearing on Landfill Petition Not "Fundamentally Unfair"

Hearing on Landfill Petition Not "Fundamentally Unfair"

  Monday, November 21, 2011    Julie Tappendorf

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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.

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

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

  Monday, November 21, 2011    Julie Tappendorf

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Most municipalities understand that cellular facilities are necessary to serve the needs of residents who increasingly rely on their cell phones. The need to site antenna facilities in a particular community can, however, conflict with a municipality’s desire to preserve and protect property values and the aesthetic character of a community. The Telecommunications Act of 1996 was intended to strike a balance between respect for local land use control and promotion of competitive telecommunication services by establishing certain procedural and substantive regulations for local land use decisions on cellular facilities.

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

One of the most significant issues addressed in the ruling was the establishment of a “shot clock” for a municipality’s evaluation and decision on a zoning application. The rationale behind the new time limits was that language in the Act requiring local governments to “act on any request…within a reasonable period of time,” was too vague.  A local zoning authority has 90 days (co-locations) or 150 days (all other applications) to make a final, written decision on a zoning application for a cellular facility. Once a zoning application is deemed complete, the shot clock begins to run. A municipality can have an additional 30 days to request additional information for the application, which tolls the clock. If a municipality fails to act within the time frames, there is a rebuttable presumption that the municipality has acted, or failed to act, unreasonably and the 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 a claim of unreasonable delay is for a zoning official to obtain the provider’s consent to extensions of time. While repeated delays might test the bounds of a provider’s patience, limited extensions for substantive purposes should be granted if the parties are acting in good faith. In at least one case, a court held that a provider that agreed to an extension of time was barred from making a claim for unreasonable delay so long as a final decision was made within the extended time.

As a general rule, courts have upheld zoning decisions by municipalities that have treated cellular zoning applications similarly to other applications, and have applied objective standards in a non-discriminatory manner.  Courts have also been reluctant to grant injunctive relief to a cellular provider solely because a municipality violated the shot clock requirements.  However, a court might be more favorably inclined to issue an injunction if it finds that the municipality's delay in processing an application is based on some bias against the 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.

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Handouts Available for Municipal Law Seminar

Handouts Available for Municipal Law Seminar

  Friday, November 18, 2011    Julie Tappendorf

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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.

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Texts on Personal Cell Phones Must be Released under FOIA

Texts on Personal Cell Phones Must be Released under FOIA

  Thursday, November 17, 2011    Julie Tappendorf

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UPDATE:  Both a circuit court and appellate court upheld the PAC ruling that the cell phone records were releasable under FOIA. You can read about the circuit court ruling here and the appellate court ruling here.

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.

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More Local Government News: LocalGovNews.org

More Local Government News: LocalGovNews.org

  Wednesday, November 16, 2011    Julie Tappendorf

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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.

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Billboards, Leases, Zoning, and Takings

Billboards, Leases, Zoning, and Takings

  Wednesday, November 16, 2011    Julie Tappendorf

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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.

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Sewer Tax Discrimination Case to be Decided by Supreme Court

Sewer Tax Discrimination Case to be Decided by Supreme Court

  Tuesday, November 15, 2011    Julie Tappendorf

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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.

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Agriburbia™ - Beyond Chickens in the City?

Agriburbia™ - Beyond Chickens in the City?

  Monday, November 14, 2011    Julie Tappendorf

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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. 

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

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

  Friday, November 11, 2011    Julie Tappendorf

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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. 

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Article Summarizes Recent Cases in Ethics and Land Use

Article Summarizes Recent Cases in Ethics and Land Use

  Thursday, November 10, 2011    Julie Tappendorf

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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.

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

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

  Wednesday, November 09, 2011    Julie Tappendorf

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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. 

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Can Parks Fix the Real Estate Crisis?

Can Parks Fix the Real Estate Crisis?

  Tuesday, November 08, 2011    Julie Tappendorf

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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.

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Will the Supreme Court Resolve the Takings Issue?

Will the Supreme Court Resolve the Takings Issue?

  Monday, November 07, 2011    Julie Tappendorf

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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.

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Ancel Glink's Zoning & Land Use Group on Twitter

Ancel Glink's Zoning & Land Use Group on Twitter

  Monday, November 07, 2011    Julie Tappendorf

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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. 

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Upcoming Seminar on Municipal Law

Upcoming Seminar on Municipal Law

  Friday, November 04, 2011    Julie Tappendorf

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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.

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Eight Circuit Finds City Ban on Funeral Protests Unconstitutional

Eight Circuit Finds City Ban on Funeral Protests Unconstitutional

  Thursday, November 03, 2011    Julie Tappendorf

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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. 

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

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

  Wednesday, November 02, 2011    Julie Tappendorf

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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).

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Supreme Court Declines to Hear Highway Cross Appeal

Supreme Court Declines to Hear Highway Cross Appeal

  Tuesday, November 01, 2011    Julie Tappendorf

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On Monday, October 31, 2011, the United States Supreme Court voted 8-1 to decline to hear an appeal of a lower court’s decision that the placement of 12 foot high crosses on the side of Utah highways to honor fallen state troopers violated the First Amendment's prohibition on government establishment of religion.

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

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

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