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Tuesday, February 28, 2012

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

Check out the most recent issue of Ancel Glink's e-newsletter, In the Zone: Current Trends in Land Use Law, for updates on new laws and recent cases in the land use and economic development area.  Here is a sneak peak into this edition:

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

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

Conflicts of Interest Under the TIF Act

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

New Decisions

This issue updates our readers on three new cases and opinions. 
  • The Attorney General issued an opinion that school districts are subject to local zoning ordinances. 
  • An Illinois appellate court held that non-home rule municipalities have authority to prohibit the drilling of oil and gas within its boundaries. 
  • Another appellate court upheld Chicago's weed ordinance.
New and Proposed Legislation

This issue also reports on new laws and proposed legislation of interest to land use professionals, including the following:   
  • New Voting and Notice Requirements for Annexations:  H.B. 5188 would amend the annexation provisions of the Illinois Municipal Code to increase the voting requirements for certain annexations from a majority of owners and/or electors to 60%.  The bill would also require a public hearing with prior notice before a municipality can voluntary annex property under 65 ILCS 5/7-1-8.
  • TIF Amendments: There are a number of bills that have been introduced to amend the TIF statute.  The one that might have the most traction is H.B. 4694 that would amend the joint review board provisions to require a 3/5 vote of the JRB to make a recommendation on a TIF plan.  The bill also provides that a failure by the JRB to make a timely report to the corporate authorities is deemed a negative recommendation.
  • Lender Responsibility for Homes in Foreclosure:  H.B. 5339 would place responsibility on lenders for protecting and securing residential properties once foreclosure proceedings have commenced.

Monday, February 27, 2012

Amendment to Telecommunications Act Limits Local Control of Cellular Facilities

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

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



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

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

(A) collocation of new transmission equipment;
(B) removal of transmission equipment; or
(C) replacement of transmission equipment.

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

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

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

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

Post Authored by Adam Simon and Julie Tappendorf, Ancel Glink

Friday, February 24, 2012

Supreme Court gives police officers qualified immunity: SCOTUSblog

Opinion analysis: Court gives police officers qualified immunity : SCOTUSblog

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

Property Tax Legislation Would Affect Local Government Revenues

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

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

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

Post Authored by Julie Tappendorf, Ancel Glink

Thursday, February 23, 2012

OMA Bill Would Require "Sufficiently Descriptive" Agendas

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

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

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

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

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

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

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

UPDATE:  July 19, 2012, Governor signs bill into legislation (later version).

Post Authored by Julie Tappendorf, Ancel Glink

Wednesday, February 22, 2012

Tuesday, February 21, 2012

Court Enforces Indemnification Clause Against Developer

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

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

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

Post Authored by Julie Tappendorf, Ancel Glink 

Friday, February 17, 2012

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

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

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

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

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

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

Post Authored by Julie Tappendorf, Ancel Glink

Thursday, February 16, 2012

Ancel Glink Municipal Question of the Month: Tax Levies

Municipal Q&A - February 2012:

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

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

Wednesday, February 15, 2012

Municipalities Can Collect Outstanding Debt through Local Debt Recovery Program

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

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

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

Tuesday, February 14, 2012

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

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

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

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

Post Authored by Julie Tappendorf, Ancel Glink

Thursday, February 9, 2012

Conflicts of Interest Under the TIF Act

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

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

  • If the mayor/village president or any alderman/trustee (“elected officer”) owns or controls an interest, directly or indirectly, in property within a proposed TIF area, that officer must disclose the interest in writing to the municipal clerk.
  • If an elected officer disposes of an ownership interest in property within a proposed TIF area, the terms of that disposition must be reported to the clerk.
  • These disclosures must be reported to the village board/city council and noted in the minutes of a board/council meeting.
  • The same disclosure rules apply to any municipal employee or consultant involved in the planning and preparation of the TIF redevelopment plan or project.
  • Any of the above persons must refrain from
    • Any “further official involvement” in regard to the redevelopment plan;
    • Voting on any matter pertaining to the TIF plan;
    • Communicating with any member of the board/council on any matter pertaining to the redevelopment plan, project or area.
  • No elected officer or municipal employee involved in the TIF process may acquire any interest, directly or indirectly, in any real estate in a proposed or existing TIF district after
    • obtaining knowledge of the TIF plan, or
    • the first public notice of the TIF plan
  • A property interest acquired in a single parcel of land by an elected officer in a TIF district established prior to 1989 as the officer’s primary residence is permitted but must be disclosed to the clerk.
  • A month-to-month lease in a single parcel of land by an elected officer is not prohibited but must be disclosed to the clerk.
The Act does not provide a specific penalty for a violation but it could be deemed misconduct in office, potentially resulting in removal.  As far as we know, no one has ever been charged with violating this section, nor has a TIF district been challenged because of an alleged violation. 

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

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

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

Post Authored by Paul Keller, Ancel Glink.

Wednesday, February 8, 2012

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

When cutting costs, few municipalities start with an overhaul of their stormwater management program.  But, as it turns out, they should.  Stormwater management eats up a large percentage of tax revenue (e.g. 20% of property taxes in Downers Grove, Illinois).  Stormwater management is often wildly inefficient and ripe for dramatic gains with little to no impact on the public.  Finally, all municipalities—home rule and non-home rule—have express authority to take action immediately. 
In short, stormwater management is the low hanging fruit of budget cuts.  Instead of reaching for painful employment cuts, start with the following steps and make some easy gains.  Here’s how to start:
Step 1: Fix Your Code
Illinois law gives local governments legal authority to “regulate and determine the area of open spaces, within and surrounding such buildings,” and “set standards to which . . . structures shall conform.” 65 ILCS 5/11-13-1 (3); (6).  Plainly stated, local governments can set landscaping and grading standards for all buildings and structures in their jurisdiction. Moreover, the Illinois Legislature expressly states that local governments may use this authority to address “the hazards to persons and damage to property resulting from the accumulation or runoff of storm or flood waters.”
Most communities have exercised this authority and included landscaping and grading requirements in their zoning codes.  However, few ordinances connect landscaping ordinances with stormwater management goals.  Take, for example, Village A and B. 
Village A manages runoff by funneling all stormwater from parking lots and roofs directly to the municipal storm system (in some cases, with temporary detention on-site to reduce flow rate).   At the same time, Village A requires landowners to plant vegetation in islands throughout a parking lot and around the perimeter.  Landowners are required to put curbs around the vegetated areas which keep stormwater funneling toward the municipality’s storm sewer system.  A new parking lot can create 16 times more stormwater runoff than the lawn or field it replaced.  Using the tax dollars, Village A takes on the sole responsibility of managing this flood of water with its storm sewer system.
Village B takes a different approach.  Using the above authority, Village B requires parking lots to be graded toward the vegetated islands and perimeter.  Curbs are removed and water flows into these depressed vegetated areas (i.e. bioswales).  The runoff is filtered and absorbed by the plants that are required under the Village’s landscaping ordinance.  Storm drains are placed in the vegetated areas and collect water not absorbed. By coordinating its landscaping and stormwater management requirements, Village B dramatically reduces the volume (and pollutant load) of stormwater entering their system.  As a result, the system has less wear and a greater capacity to handle flash flood events. 
Step 2: Shift Your Expenses
In addition to maintenance costs, local governments must budget funds for pollution prevention. Most storm sewer systems are federally regulated (“Municipal Separate Storm Sewer Systems” or “MS4s”) under the Clean Water Act (“CWA”).  Among other requirements, local governments must choose from a menu of best management practices to reduce the amount of dirt, grease, salt and other pollutants that reach the storm sewer.  For many communities, street sweeping, at a cost of hundreds of thousands of dollars per year, is the pollution reduction method of choice. 
Street sweeping, however, is not the only option.  In fact, it is not even the preferred option for state and federal EPA regulators.  In the past few years, IEPA and USEPA have repeatedly noted that on-site retention using vegetated swales is the preferred best management practice when compared to street sweeping.  Agency guidelines are now pushing local governments to follow Village B’s lead.  By doing so, local governments not only gain the benefits of reduced sewer maintenance, but can reduce street sweeping efforts, saving additional money.  For example, in the City of Naperville, Illinois, a reduction in the scope and frequency of street sweeping is projected to save $170,000 annually.
Step 3:  Educate the Public
To gather support for your shifting regulations, make sure to educate the public. For landowners, the shift in landscaping, grading and curb requirements is good for their long-term bottom line. First, most applicants are required to grade parking lots and install vegetated islands under existing codes. The new ordinance simply shifts the direction of the grading and type of vegetation.  The cost of installing bioswales instead of curbed, vegetated (and watered) islands is likely a wash. Second, remind the public that the modified zoning code is designed to reduce flooding. In Illinois, flooding is the greatest threat to both residential and commercial property. By reducing this threat, local governments are reducing flood-related expenses for private landowners.
In the end, an efficient stormwater management policy will reduce government spending, reduce property taxes, reduce flood losses, and please state and federal regulators (who control future funding). Before cutting much needed community services to repair your budget, look at how you manage stormwater.  Are you taking advantage of these reductions or washing your money away?

Post Authored by Brent Denzin, Ancel Glink

Monday, February 6, 2012

"Green" SSA Bill Starts Spring Legislative Session

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

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

Post Authored by Dan Bolin, Ancel Glink.

Friday, February 3, 2012

Upcoming Webinar/Teleconference on RLUIPA

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

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

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

Wednesday, February 1, 2012

Ban of Registered Sex Offenders from Library Violates First Amendment

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

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

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

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

Post Authored by Julie Tappendorf, Ancel Glink