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Thursday, May 30, 2019

Bill Would Modify 90 Day Statute of Limitations for Zoning Lawsuits

Municipalities should be aware of a new bill recently introduced that, if passed, would affect the finality of municipal zoning decisions. The bill was not previously on our radar as it was slipped in as Senate Amendment No. 3 to a water reclamation bill.

Senate Amendment 3 to HB 2862 would amend the Zoning Enabling Act to exempt lawsuits that challenge the facial validity of a municipal zoning decision from the otherwise applicable 90 day statute of limitations. Currently, if someone wants to challenge the validity of a zoning decision, including a special use, variation, rezoning, or zoning text amendment, they must bring their lawsuit within 90 days of the zoning decision. This change would eliminate the 90 day time limitation for facial challenges to zoning decisions, leaving these open to challenge well beyond the 90 day period.

Some municipal organizations are actively opposing this legislation, expressly concerns about how it would eliminate the important finality to zoning decisions that the current 90 day statute of limitations provides.

Wednesday, May 29, 2019

County Hotel Tax Bill Introduced

A new bill was introduced yesterday in the Illinois House that would authorize a county with more than 800,000 but less than 3,000,000 residents (DuPage County) to impose a hotel tax within incorporated areas of the county (i.e., in cities and villages) that have also adopted a municipal hotel tax. Currently, counties can only impose a hotel tax in unincorporated areas of the county. HB 3846. So, if this passes, hotels that are located in cities and villages in DuPage County that already impose a hotel tax used for tourism or economic development purposes would be subject to both a municipal and county hotel tax.

Thursday, May 23, 2019

Illinois Supreme Court Upholds Chicago's Food Truck Ordinance

We have reported previously on a lawsuit filed against the City of Chicago challenging its food truck ordinance that prohibits food trucks from being located within 200 feet of a "brick and mortar" restaurant. The trial and appellate courts ruled in favor of the City, upholding the ordinance. The case made its way to the Illinois Supreme Court, which issued its ruling this week also upholding Chicago's food truck ordinance. LMP Services v. City of Chicago, 2019 IL 123123

The City of Chicago adopted its food truck ordinance in 2012. The ordinance imposed a number of restrictions on food trucks, including a prohibition on any food truck being located within 200 feet of "any principal customer entrance to a restaurant which is located on the street level." The ordinance was subsequently amended to add exceptions for food trucks participating in the "mobile food vehicle stands program," where the City reserved certain designated areas on City streets where food trucks are permitted to operate without being subject to the 200 foot rule. The amendment also added a "GPS requirement" that requires food trucks to install a permanent GPS device to send data to a service provider.

LMP, the owner of the "Cupcakes for Courage" food truck, filed a lawsuit to challenge the City's food truck ordinance. Specifically, LMP claimed the 200 foot rule violates the equal protection and due process clauses because it favors traditional restaurants over food trucks. LMP also challenged the GPS requirement as an unreasonable search.

The trial court ruled in favor of the City, finding that it had a legitimate City interest in imposing the 200 foot rule. The court also rejected the challenge to the GPS requirement, finding that it was not unreasonable under the constitution. The appellate court agreed, also noting that the City has a legitimate interest in protecting traditional restaurants and the 200 foot restriction was not unreasonable.

The Illinois Supreme Court first acknowledged that both traditional restaurants and food trucks are important businesses to the City; however, the Court noted a few key differences, including the fact that the traditional restaurants pay property taxes and have a vested interest in the neighborhoods in which they are located. As a result, the City has a legitimate governmental interest in the stability of traditional restaurants and neighborhoods that justifies the differential treatment (i.e., the 200 foot rule). 

The Court also addressed the challenge to the GPS requirement, finding that it did not constitute an unconstitutional "search." The GPS data was not transmitted directly to the City, nor was it publicly accessible. Nor had the City actually requested location data from any of the food truck service providers. The Court noted that even if the GPS requirement was a "search", it was not unreasonable because there is a government interest in knowing a food truck's location, for purposes of regular inspections and in case of public health emergencies. 

In short, the Illinois Supreme Court rejected LMP's challenge to the food truck ordinance, and upheld the ruling in favor of the City.

Court Addresses FOIA Request for Grand Jury Records

In a recent appellate case, a court addressed whether records relating to a grand jury must be disclosed under FOIA. Williams v. Bruscato, 2019 IL App (2d) 170779.

Williams was convicted of first degree murder in a Winnebago county court in 1998. In 2014, he sent a FOIA request to the Winnebago County jail seeking the following records: (1) all "no-bills" and "true bills" of indictment for May 7th and 14th, 1997; (2) the grand jury's deliberation and vote for May 14, 1997 in People v. Williams; and (3) the itinerary sheet for all "no bills" and "true bills" for May 7th and 14th, 1997. the States Attorney denied the FOIA request, citing the Illinois Criminal Code of Procedure as prohibiting release of any records that pertain to grand jury proceedings.

Williams appealed, and his appeal made its way to the Illinois appellate court, which upheld the States Attorney's denial of his FOIA request, with one exception.

With respect to the request for release of "no bills," the appellate court agreed with the States Attorney that those records are exempt, holding that the disclosure of "no bills" would expose innocent persons who had been exonerated by the grand jury. The court noted that these records have never been placed in the public record, so they could not even be properly redacted and are exempt in their entirety.

As to the request for release of "true bills," the appellate court found that true bills are a matter of public record because they are filed in open court. However, the court held that the identities of witness names contained in a true bill would expose matters that occurred before the grand jury, and are exempt from disclosure. As a result, the court ordered release of the requested true bills with the witness names redacted.

Finally, as to the request for the deliberation and vote of the grand jury on Williams' indictment, the court held that state law expressly states that the grand jury deliberations and vote are to be kept secret. Thus, the court upheld the States' Attorney's denial of these records.

In sum, to the extent that records relating to a grand jury proceeding have not been filed in open court, they are likely to be exempt from disclosure under FOIA under the Illinois Criminal Code of Procedure.

Wednesday, May 22, 2019

PAC Says Board Violated "Public Recital" Provision of OMA

Recently, the PAC issued its fourth binding opinion of 2019, finding a public body in violation of the Open Meetings Act for failure to provide an adequate public recital of the business being conducted before taking final action on a resolution. PAC Op. 19-004.

On January 28, 2019, at a Pinckneyville school district board meeting, the board voted on "Resolution 2019-1 authorizing a Notice to Remedy." Shortly thereafter, a newspaper reporter filed a complaint with the PAC arguing that the board did not give any public details about the resolution prior to voting on it. The PAC contacted the school board for a response, and the school board provided copies of the agenda, minutes, closed session recording, resolution, and the "Notice to Remedy." The school board attorney explained to the PAC that the resolution number and title were read aloud prior to the board voting on the resolution, as reflected in the minutes of the meeting. 

In analyzing the complaint, the PAC acknowledged that the Illinois Supreme Court had issued an opinion holding that the "public recital" requirement of the OMA does not require the board to explain the terms or significance of the item being voted on but must announce the nature of the matter. Bd. of Ed. of Springfield Sch. Dist. No. 186 v. Attorney General. You may recall that we reported on that Illinois Supreme Court decision previously. Nevertheless, the PAC found that in this case, the school board violated the OMA because it failed to disclose enough detail about the resolution prior to voting on it, including disclosing the name of the teacher being served with the Notice to Remedy).

It is difficult to square this opinion with the Illinois Supreme Court's ruling in the Springfield case. In overturning an earlier PAC opinion that a Springfield school district must engage in discussion and disclose the terms and details of a matter prior to voting on it, the Supreme Court made it clear that "public recital" does not require some level of detail or a summary of the events leading up to the vote. Nor does it require the public body to explain the significance of the action. Instead, it requires the public body to "state the essence of the matter under consideration, its character, or its identity." In the case at issue in PAC Op. 19-004, the Pinckneyville board identified the matter being approved (a resolution), and the character or nature of the resolution (to approve a Notice to Remedy). Nowhere in the Supreme Court's ruling does it seem to require disclosure of the employee's name to satisfy the "public recital" requirement of the OMA. The apparent inconsistency between the Illinois Supreme Court's ruling in the Springfield case and the PAC's opinion in PAC Op. 19-004 makes it difficult for public bodies to understand what type of detail the board must go into prior to taking a vote. 

Since this is a binding opinion, it can be appealed by the Pinckneyville school board - we will keep you posted if this case goes any further. 

Thursday, May 16, 2019

Reminder: Prevailing Wage Act Changes Take Effect June 1

About this time each year, Illinois public bodies begin putting together their annual prevailing wage ordinances or resolutions to present to their boards and councils for approval in June so the ordinance or resolution can be filed with the Department of Labor by the July 15th statutory deadline of the Prevailing Wage Act. Not this year, though. As we reported previously, the Illinois General Assembly enacted P.A. 100-1177 to amend the Prevailing Wage Act to eliminate the requirement that public bodies adopt an ordinance or resolution to "ascertain" prevailing wages. That new law takes effect June 1, 2019, just in time to eliminate this year's requirement of adopting an ordinance or resolution.

Moving forward, instead of every public body adopting an ordinance or resolution ascertaining prevailing wages, the Department will ascertain the prevailing wage for them. Of course, the underlying statutory requirement that public bodies pay prevailing wages for work covered by the Act still exists, but the annual obligation to adopt a prevailing wage ordinance or resolution will be eliminated on June 1st.

Tuesday, May 14, 2019

GovLove Podcast on Regulating Public Rights of Ways

Check out Ancel Glink Partner Dan Bolin's appearance on #GovLoveLegal, a GovLove podcast hosted by ELGL and recorded live at the 2019 APA National Planning Conference. A description of the podcast is below and you can listen to the podcast here.  
GovLove was recently at the National Planning Conference for a session all about right-of-way. Local governments hold the public right-of-way in trust for the benefit of the public; but rapid changes in technology, federal policy, and constitutional law are increasing demands for services and challenging local regulatory authority. Experienced local government attorneys, and industry professionals discuss best practices for right-of-way management in the face of emerging challenges. Panelists include: Alan Weinstein, Cleveland State University; Alicia Giudice, San Rafael, CA; Brandon Bordenkircher, Chaddick Institute for Metropolitan Development; Daniel J. Bolin, Ancel Glink; Gail A. Karish, Best Best & Krieger LLP; and Isidro A. Jimenez, San Francisco, CA.

Thursday, May 9, 2019

Village Did Not Breach Contract by Failing to Disclose County Permit Requirements

According to a recent Illinois case, the issuance of a building permit does not create a contract between an applicant and a municipality.  In 2008, Paul and Dana Mosier obtained a building permit from the Village of Holiday Hills to construct a garage, patio, and driveway on their property.  Five years later, the Mosiers were sued by McHenry County for constructing improvements within a regulatory flood-prone area without a County stormwater management permit.  In turn, the Mosiers sued the Village for breach of contract and violations of the Consumer Fraud and Deceptive Business Practices Act (“Consumer Fraud Act”). 

Mosiers claimed the Village’s building inspector breached an "oral contract" with them when he advised they undertake certain structural improvements, issued a building permit, but failed to notify them of the County’s permit requirements. In addition, the Mosiers claimed the building official violated the Consumer Fraud Act because he induced them to construct the improvements and knowingly made false statements.

In Mosier v. Village of Holiday Hills, the court ruled in favor of the Village on both claims.  First, it deemed a building permit more similar to a license than a contract because, similar to a license, a municipality has the power to impose restrictions and revoke building permits pursuant to its police powers. Second, when an applicant qualifies for a building permit, a municipality is required to issue it without receiving any “consideration” in return (other than the permit fee which pays for its costs).

The court also found the Consumer Fraud Act inapplicable. The Act is intended to prevent deceptive behavior during a transaction “involving trade or commerce” involving such things as advertising, offers for sale, or distribution of services or property. According to the court, instead of being a private commercial activity, the issuance of a building permit is a municipality’s fulfillment of its regulatory and statutory functions in accordance with state law and local ordinance.

Post Authored by David Warner, Ancel Glink

Wednesday, May 8, 2019

How Will Recreational Marijuana Affect Illinois Local Governments?

On May 4, 2019, Governor Pritzker and key legislators unveiled a long-anticipated proposal to legalize the use of cannabis for adults over the age of 21 under Illinois law (Amendment No. 1 to SB 7). The proposed law would allow residents over the age of 21 to possess up to 30 grams of cannabis and grow up to five plants per household. The Act prohibits the use of cannabis in public places including government buildings. 

While the draft legislation might be amended and still has to be approved by the General Assembly, it is not too early for local governments to prepare for the proposed law's sweeping changes affecting cannabis business establishments, including land use/zoning, tax revenues, employee policies, expungement obligations, among others. We can't possibly go into everything that is in the 533 page bill, but we have provided a brief summary of some of the provisions that affect units of local government below.

One Year to Prohibit Cannabis Business Establishments
The draft legislation contains a provision that will allow local governments to "opt-out" or entirely prohibit cannabis business establishments in their jurisdiction, including dispensaries, cultivation centers, craft growers, processing organizations, and transportation organizations. However, any "measure prohibiting or significantly limiting" the location of cannabis businesses has to be adopted within one year of the effective date of the Act. After this one-year period has expired, local governments will have to seek approval by referendum to adopt any prohibition or significant limitation on cannabis businesses.

Regulate Cannabis Businesses
The current bill allows local governments to regulate cannabis businesses but only to a certain extent. The bill allows local governments to adopt (1) reasonable zoning ordinances that do not conflict with the Act or unreasonably prohibit home cultivation and use of cannabis; (2) ordinances and rules governing the time, place, manner, and number of cannabis businesses; and (3) regulations on the consumption of cannabis in a manner consistent with the Act.

This language would permit local governments to impose distance restrictions between cannabis businesses and other sensitive uses and locations, limit the hours of operation of cannabis businesses, or set a cap on the number of cannabis businesses allowed within the jurisdiction. The current bill also expressly allows local governments to regulate cannabis businesses through the use of conditional (special) use permits. While the bill allows local governments some regulatory authority, the bill prohibits local governments from regulating cannabis businesses in a more restrictive manner than allowed under the Act. Importantly, this prohibition includes an express home rule preemption. 

Employment Policies and Workplace Drug Policies
Under the current bill, employers will have the authority to adopt reasonable and nondiscriminatory employment policies concerning drug testing, smoking, consumption, storage or use of cannabis in the workplace. In addition, employers will have the power to discipline or terminate employment of an employee for violating an employer's employment policies or workplace drug policy. The Act also establishes when an employer may consider an employee to be under the influence of cannabis. 

Municipal Cannabis Sales Tax
Under the current bill, both home rule and non-home rule municipalities can adopt ordinances to impose a local tax on the operation of a cannabis dispensary. The rate of tax cannot exceed 3% of the dispensary's gross receipts from the sale of non-medical cannabis. If imposed, the tax may only be imposed in 0.25% increments.

Expungement of Local Records and Offenses
The initial procedure for expunging criminal records will be handled by the Illinois State Police (ISP) as well as the State's Attorneys Office. However, local law enforcement will have to automatically expunge records pertaining to arrests for minor violations identified by the Department of State Police within 60 days of notice from ISP. 

SB 7 is only a proposal at this time and still needs to pass both the Illinois House and Senate and be signed by the Governor before it becomes law. However, it is important to note that the current draft state budget includes cannabis revenue, so, it is expected that the General Assembly will move fairly quickly to consider passing legislation. 

Monday, May 6, 2019

PAC Releases Annual OMA/FOIA Report of 2018 Activities

"Sunshine Week" came and went this year without any fanfare from the Illinois Attorney General's office. Typically, that is when the Public Access Counselor (PAC) publishes its annual report on OMA and FOIA complaints and training sessions. Although I didn't see any press about the release of the 2018 annual report, it was issued and you can find a copy of the report on the AG's website here.  

As we have in the past, we've highlighted some of the findings and summaries here in case you don't want to read through 39 pages of the full report.

Complaints filed in 2018

  • In 2018, the PAC received 3,748 "requests for review" of OMA and FOIA matters.  
  • 3,372 of these were related to FOIA
  • 376 relating to the Open Meetings Act

Training sessions conducted in 2018

The PAC conducted 32 training sessions on OMA/FOIA

Binding opinions issued in 2018

The PAC issued 18 binding opinions in 2018.  Regular readers know that we summarize the binding opinions on Municipal Minute. You can find summaries of the first 16 binding opinions issued in 2018 here and the last 2 binding opinions for 2018 here. They are also posted on the AG's website here.

Non-binding opinions issued in 2018

Interestingly, this year's annual report does not identity how many advisory opinions were issued in 2018.  Given that there over 3700 complaints filed in 2018, and only 18 binding opinions issued in 2018, one can guess that there were hundreds, if not thousands, of advisory opinions issued - either that, or a significant number of these complaints remain unresolved. 

So, where can one find all of these advisory opinions?

Well, as regular readers know, the PAC does not post the non-binding or advisory opinions on the AG's website. The only way to get access to these opinions is to file a FOIA request with the PAC or AG. The problem, of course, is that there are just so many advisory opinions. How does a requester narrow the request sufficiently to avoid an "unduly burdensome" claim by the PAC, a task that can prove very difficult if a requester doesn't have an idea of the topics addressed in these opinions since the PAC hasn't posted an index of these opinions. 

A handful of these advisory opinions are summarized in the annual report, so that is a helpful resource. But, I still remain hopeful that at the very least, the PAC will put together and post on its website an index of these advisory opinions to make it easier for the public and public bodies to request copies of opinions of interest. It would be a step in the right direction by the office tasked with ensuring government operates transparently.  And, it would offer a lot in the way of helpful guidance to public bodies in ensuring compliance with FOIA and OMA, particularly because there are so very few binding opinions issued each year (only 3 so far in 2019).

Thursday, May 2, 2019

Happy Birthday Quorum Forum! Podcast Episode 24 - Local Government Procurement

It’s Quorum Forum podcast’s first birthday party! We’re celebrating with the release of a new episode Episode 24: Local Government Procurement.

In this episode, Ancel Glink attorney David Warner will summarize recent annexation cases from Municipal Minute. Then, Ancel Glink attorney Derke Price reviews what newly (and not-so-newly) elected officials need to know about local government procurement. 

Questions about purchasing goods and services? Happy birthday wishes? Email us at podcast@ancelglink.com!