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

Wednesday, July 31, 2019

PAC Opinion Finds FOIA Violation for Failure to Respond

After three months without a binding opinion from the PAC Office of the Illinois Attorney General, the PAC issued an opinion finding a municipality in violation of FOIA for failing to respond to a union's FOIA request for various records pertaining to a bargaining unit and finances of the municipality. PAC Op. 19-006. Not only did the municipality fail to respond to the FOIA request, it also did not respond to the PAC's request for review. Nothing new or helpful in this binding opinion except another reminder that public bodies have an obligation to respond to FOIA requests.   

Tuesday, July 30, 2019

Court Upholds Village's Stormwater Fee Ordinance

In 2014, the Village of Winnetka adopted a storm water ordinance that imposed a fee on the owners of property in the Village in order to provide a dedicated funding source for various improvements to the Village's storm water system. That fee was calculated based on the "equivalent runoff value" (ERU) of 3400 square feet of impervious surface area on lots within the village. No fee was assessed on properties with less than 170 square feet of impervious surface area, and roads, sidewalks, and alleys were also not subject to the fee. Properties that do not discharge storm water into the Village's system could obtain a 100% credit of the fee, and properties that detained at least half of their own runoff could obtain a 50% credit of the fee. The fee was assessed on the Village's utility bills.

Green, a Village resident subject to the fee, filed a lawsuit against the Village to challenge the fee, claiming that it was an unlawful tax because the fee bears no relation to a property owner's actual use of the Village's storm water system. The parties filed motions for summary judgment, and the circuit court ruled in the Village's favor. Green appealed, and that appeal is the subject of an Illinois appellate court ruling in Green v. Village of Winnetka, 2019 IL App (1st) 182143.

The issue before the appellate court was Green's argument that the Village's storm water fee was actually a tax rather than a fee for services rendered. Green made a number of arguments, including that many property owners were being charged the fee without receiving any benefit, and that the fee was not tied to the actual use of the Village's storm water system. The Village defended the fee, arguing that a previous appellate court ruling had upheld a similar storm water fee adopted by Rock Island that was also based on impervious surface area.

The appellate court agreed with the Village that Winnetka's fee was similar to Rock Island's fee that was previously upheld by the Third District Appellate Court. Both ordinances assess the fee based on impervious surface and both defined impervious surface in the same manner. Both ordinances also allow for a 100% credit for properties that do not use the municipal system, and the revenues obtained in both municipalities are dedicated to a fund used solely to finance the municipal storm water system. Finally, both ordinances exempt public roads and rights of way. Moreover, the court determined that there was a rational basis to support the storm water fee ordinance. In sum, the court upheld the Village's ordinance.  

Monday, July 29, 2019

State Changes to Raffles Act Affect Local Raffles Regulations

On July 19, 2019, the Governor signed P.A.101-109 enacting significant amendments to the state Raffles and Poker Runs Act that modify, and in some cases relax, requirements for local raffle regulations. Illinois municipalities may want to review their current raffles regulations and consider amendments consistent with the amended Raffles Act.

One of the more significant amendments is that raffle chances can now be sold statewide, which is a substantial change from the previous language that restricted the sale to the locality where licensed.

Another change is to expand the list of eligible organizations to conduct raffles, which now includes: 
  • bona fide religious, charitable, labor, business, fraternal, educational, or veterans (5-year continuous operation requirement now waivable for certain national or state organizations)
  • other bona fide not-for-profit organization (newly eligible, but 5-year requirement not waivable)
  • non-profit fundraising organization organized for providing certain financial assistance to identified person or group 
  • law enforcement agencies and their statewide associations 
The Act also makes minor amendments to its list of ineligible persons.

The Act previously required municipalities to establish certain limits on prize values, chance prices, and duration of chance sales. But with the new Act, those limits are optional.

The Act now provides that directors, officers, employees, and members of the sponsoring organization may manage the raffle. Additionally, the sponsoring organization may contract with third parties to provide services in connection with the raffle. The Act now also allows a sponsoring organization to rent a premises for the raffle, subject to restrictions on rent.

Finally, although the Act still requires a bond for the raffle manager, there are relaxed voting requirements for a waiver of the bond.

Friday, July 26, 2019

New Law Amends Township Vacancy Law

The Illinois Governor signed P.A. 101-104 into law last week amending the Township Code relating to the process for filling vacancies in township office. 

Under the new law, if there is a vacancy in the office of Township Supervisor, then a Township Board trustee must be appointed as deputy supervisor to perform the ministerial functions of the supervisor's job until the vacancy is filled. Once the vacancy is filled, the deputy supervisor appointment is terminated. 

The law also clarifies the duties of the temporarily appointed deputy for other vacant offices as well. If that vacancy is filled temporarily by a trustee, the law authorizes the deputy to vote on matters before the board if the deputy is a trustee at the time of the vote, but provides that the trustee compensation be suspended during the temporary appointment. 

Thursday, July 25, 2019

New Law Imposes Additional Requirements on Certain Library District Annexations

On July 19, 2019, the Governor signed into law Public Act 101-0099 (HB 2993) making it more difficult for Illinois Library Districts to annex property that is unserved by tax-supported public library service. 

Prior to the bill’s passage, a Library District could annex property simply by adopting an ordinance, providing an opportunity for the public to provide comment, and posting adequate notice. The property had to be (i) located within a municipality or school district that was entirely or partially within the district, (ii) contiguous with the district, and (iii) unserved by any local, tax-supported public library service. (75 ILCS 16/15-15)  Unless 10% of the registered voters in the District, or the property to be annexed, filed a petition requiring a referendum (a "backdoor referendum"), the annexation would automatically become valid in 30 days. Otherwise, a majority of the voters in the District and the property to be annexed had to approve the annexation for it to become effective.

P.A. 101-0999 amended the Library District Act to make voter approval mandatory. Now, following adoption of an ordinance annexing property that meets the qualifications set forth above, the District board of trustees must submit the question of annexation to the voters of the District and the property to be annexed. A majority of the voters in the District and the property to be annexed must then approve the annexation for it to become effective.

The bill contains an apparent inconsistency in that it states the question must be submitted to the voters in the District or the property to be annexed but then states that a majority of voters in both the District and the property to be annexed must approve of the annexation. However, the use of the word “or” appears to be a drafting error left over from the prior law.

Post Authored by David Warner, Ancel Glink

Wednesday, July 24, 2019

New Law Affects Term Limits in Municipal Office

Last week, Governor Pritzker signed Senate Bill 1536 into law as Public Act 101-0114.  P.A. 101-114 amends the Illinois Municipal Code to establish certain restrictions on the imposition of term limits on municipal offices. The new law specifies that term limits can only be imposed prospectively (counting service in office only after a referendum is adopted) and not retroactively (counting someone’s service in office prior to a referendum being adopted). It also prohibits municipalities from counting service in one elected office to block service in a completely new office. The new law applies to any term limit imposed on or after November 8, 2016, and preempts home rule. 

Tuesday, July 23, 2019

7th Circuit Addresses Challenges to Local Alarm System Ordinances

Last week, the Seventh Circuit Court of Appeals decided two cases challenging local ordinance requirements that commercial buildings be equipped with fire-alarm systems. The cases addressed various claims by Alarm Detection Systems (ADS) that these local ordinances violate state and federal laws and the constitution because they require commercial buildings to contract directly with only one alarm system provider. In both cases, the local government bodies had entered into exclusive agreements with Tyco Integrated Security, LLC, a competitor of ADS. With the exception of a Contracts Clause claim, the court rejected ADS' arguments, and dismissed its claims.

In ADS v. Orland Park Fire Protection District, ADS argued that the local requirement that commercial businesses contract with Tyco for alarm services violated the Illinois Fire Protection District Act, the Sherman Act, and the 14th Amendment to the U.S. Constitution. The district court rejected those claims, ruled in favor of the local government, and dismissed the case. On appeal, the Seventh Circuit upheld the dismissal. First, the 7th Circuit held that ADS had no private right of action under the Illinois Fire Protection Act based on its status as a competitor to Tyco. Second, the 7th Circuit rejected ADS' Sherman Act claims because ADS could not show that its own system could comply with the local requirements. Finally, the 7th Circuit found no fundamental right of ADS to support a 14th Amendment claim, and ADS had accepted that the local ordinances were lawful.

In the second case, ADS v. Schaumburg, ADS brought a variety of claims against Schaumburg, including claims of antitrust and state tort claims which the 7th Circuit rejected. However, the 7th Circuit did allow ADS' claim that the Schaumburg ordinance violated the Contracts Clause of the U.S. Constitution to move forward. The Contracts Clause "restricts the power of States to disrupt contractual arrangements" through legislation, which also applies to municipalities. ADS claimed that Schaumburg's ordinance forces ADS customers to either cancel or not renew their contracts with ADS in order to comply with the ordinance requirement that it contract with Tyco. That claim was allowed to move forward for further proceedings.

Monday, July 22, 2019

Podcast: Legal Challenges to Parking Enforcement

Sometimes, you want to "listen" to your news rather than read it, and we have a recommendation for a podcast episode hosted by ELGL. In this episode of ELGL's GovLov Podcast titled "Legal Challenges to Parking Enforcement," Ancel Glink attorneys ShawnTe Raines and Matt DiCianni talk about the recent court ruling about the use of chalk in parking enforcement. They also touch on a few other legal issues at the local level.  

You can access the podcast by clicking on the title below:

Podcast: Legal Challenges to Parking Enforcement

Parking Enforcement GovLove

Friday, July 19, 2019

APA Webinar: Supreme Court Takings Decision in Knick

Planners, lawyers, and land use professionals won't want to miss this upcoming webinar hosted by the American Planning Association's Planning & Law Division on the recent Supreme Court's takings decision in Knick.  See below for details:

What the Supreme Court's Knick Decision Did and Did Not Change

Tuesday, July 30, 2019 
1 p.m. - 2:30 p.m. Eastern Time
noon - 1:30 p.m. Central Time

CM I 1.50 I Law
CLE 1.50 through Illinois State Bar

In June, a divided Supreme Court overturned part of a longstanding precedent that generally required plaintiffs alleging unconstitutional takings to first try and fail to obtain compensation under state law before pursuing a federal takings claim. Property rights activists celebrated their one-vote win, but as a practical matter does the decision really change things for planners? John Baker and Deborah Rosenthal will discuss the case and its impact on municipalities and property owners/developers.

Register Here

Monday, July 15, 2019

Miscellaneous New Laws Signed Into Law

A few miscellaneous new Illinois laws were signed into law last Friday that may affect units of local government, including the following:

P.A. 101-0041 amends the Fire Protection District Act to require a fire protection district to post on its website notices of any proposal to award any contract for work that will exceed $20,000. The amendment also removes a requirement that other notices be published in a daily newspaper.

P.A. 101-0047 amends the non-home rule municipal sales tax statute to extend the time period for non-home rule municipalities to use the local sales tax revenues for municipal operations to July 1, 2030. The previous deadline was December 31, 2020.  

P.A. 101-0058 amends the Park District statute to add new language regarding the staggering of terms of office for members of 7 member park district boards that have approved a change to the term of office from six years to four years. The new statutory language is below:
  (2) On a 7-member board under Section 2-10a, if the terms of only 2 commissioners are scheduled to expire in the year of the second election at which commissioners are elected after the first regular park district election at least 60 days after the date on which the proposition for 4-year terms was approved at referendum or by resolution, then:
  (A) if 3 commissioners are elected at the first regular election, 2 of the commissioners elected shall serve a 2-year term and one shall serve a 4-year term to be determined by lot between persons elected within 30 days after the first election; or 
  (B) if 2 commissioners are elected at the first regular election, those 2 commissioners elected shall serve a 2-year term. 

Thursday, July 11, 2019

Public Body Cannot Assess Fee for Late FOIA Response

Public bodies should be aware of an unreported appellate court case holding that a public body could not impose fees in response to a FOIA request where the public body did not respond to the request in a timely manner.  Varan v. White.

Varan had filed a FOIA request with the Secretary of State's office for various records. The state did not respond to the request until six months later, and informed Varan that he had to pay $19,711.55 for the requested records, which was calculated based on a $25 charge per record. Varan sued, and both the trial and appellate courts ruled in Varan's favor, finding that section 3(d) of FOIA expressly prohibits a public body from imposing a fee when it fails to respond to a FOIA request within the statutory time frames. 

Wednesday, July 10, 2019

Supreme Court Strikes Down 30 Plus Years of Takings Law Precedent and Gives Aggrieved Property Owners an Open Invitation to Federal Courts

You may recall that we briefly reported on this case the day it was issued, with the promise that we would provide more details on the ruling in a future blog post.  So, here it is!

In a dispute that arose over a cemetery, the U.S. Supreme Court recently buried longstanding precedent and held that takings-claim plaintiffs may now sue directly in federal court. The controversial ruling came down in Knickv. Township of Scott, where a cemetery owner claimed that a township ordinance requiring her to keep her land “open and accessible to the general public during daylight hours” constituted an unlawful taking under the Fifth Amendment.

Two lower federal courts struck down the plaintiff’s claim following the precedent of Williamson Cty. Reg’l Planning Com. v. Hamilton Bank of Johnson City. The Court in Williamson County held that property owners first had to “exhaust” all available remedies and litigate in state court before the claim could be brought in federal court. Additionally, the Williamson County Court reasoned that the “Fifth Amendment proscribes takings without just compensation,” and thus, no constitutional violation occurs until the compensation is denied to the plaintiff. The Williamson County Court relied heavily on earlier 19th Century precedent where governments may avoid paying compensation at the time of the property deprivation so long as they make a “reasonable, certain, and adequate” mechanism for recovering compensation available. Critics of the Williamson County stated that “Williamson County [has] essentially demoted the Takings Clause to a second-class citizen among the Bill of Rights,” because “no other constitutional right is subjected to a such a legal labyrinth.”

The majority in Knick overruled Williamson County, and reasoned that the “state-litigation requirement imposes an unjustifiable burden on takings plaintiffs.” Further, following the precedent set forth in Jacobs v. United States and First English Evangelical Lutheran Church v. Cty. of L.A., the Court concluded that a constitutional violation originates from the property deprivation itself, not so much from the denial of compensation that arises in state court later down the line. The majority provides some—perhaps cold—assurance that the government will not be hamstrung by injunctions from taking property in the future, when it states “as long as just compensation remedies are available…injunctive relief will be foreclosed.” Lastly, the majority addressed the concerns raised by the dissenters over its break with longstanding precedent, by reasoning that the quality, workability of the current rule established, and its consistency with other decisions.

In summary, the Court’s decision in Knick is a huge break with past precedent and will now allow takings-claim plaintiffs to bring a §1983 civil rights action directly in federal court. In addition, the decision may create an increase in takings-claim litigation over existing land use regulations. If it was not as obvious before, the Knick decision warrants governments carefully considering how existing and new land use regulation potentially create a taking. The further implications on local governments are not yet clear; however, local governments will still most likely be able to move forward in taking property without the hindrance of injunctions, so long as they are prepared to litigate the claim in federal court.

Post Authored by David Silverman and Rain Montero, Ancel Glink

Tuesday, July 9, 2019

BREAKING: Second Circuit Decides Trump Twitter Appeal

We have previously reported on the lawsuit filed against President Trump to challenge his blocking of users from his Twitter account, which the users argued violated their First Amendment rights. The federal district court ruled in their favor, finding (1) that President Trump's @realDonaldTrump account was a public forum subject to the First Amendment and (2) that his actions in blocking users from that account violated the First Amendment rights of those blocked users. 

The President appealed that ruling to the Second Circuit Court of Appeals. This morning, the Second Circuit issued its opinion in this appeal, upholding the district court's ruling that the President's actions in blocking critics from his @realDonaldTrump Twitter account violated the First Amendment. Specifically, the Second Circuit stated as follows:
The President contends that the Account is exclusively a vehicle for his own speech to which the Individual Plaintiffs have no right of access and to which the First Amendment does not apply. Secondarily, he argues that, in any event, the Account is not a public forum and that even if the Account were a public forum blocking the Individual Plaintiffs did not prevent them from accessing the forum. The President further argues that, to the extent the Account is government- controlled, posts on it are government speech to which the First Amendment does not apply. We are not persuaded. We conclude that the evidence of the official nature of the Account is overwhelming. We also conclude that once the President has chosen a platform and opened up its interactive space to millions of users and participants, he may not selectively exclude those whose views he disagrees with.
This opinion, like the Fourth Circuit Court of Appeals ruling last year finding a County Commissioner's personal Facebook page to be subject to the First Amendment, is an important one for local government officials who use their personal social media sites to communicate about government business. In certain circumstances, those personal pages and accounts may be so intertwined with government business that they are considered a "public forum," meaning that the government official must be careful not to censor the speech of those who  post on these pages and accounts.

You can read the Second Circuit's decision Knight First Amendment Institute v. Donald J. Trump here.

Social Media Database Catalogs Police Social Media Activities

Coming on the heels of stories in Philadelphia that 76 police officers were placed on leave for allegedly racial social media activities, Dallas announced last week that it was investigating 25 police officers who had allegedly posted or shared racist or other objectionable material on social media. 

News reports cite to a database published by an action group that catalogs thousands of racist or violent posts made by police officers in several states. Reportedly, five states are investigating police officers following release of this database. More than a thousand of the cataloged public posts were made by people identified as current and former Dallas police officers. 

Examples of a few of the following public posts by police officers that were cataloged by the action group:
It's a good day for a choke hold
Death to Islam
If the Confederate flag is racist, then so is Black History Month
Statistics show that criminals commit less crimes after they've been shot
I'm proud to be white
Employee social media activities are increasingly coming under scrutiny, and as we have reported in the past, these activities do not need to be at the workplace or while on duty to subject an employee to discipline, and even termination.

Monday, July 8, 2019

Claims Against School District For Construction Payments Can Move Forward

Restoration Construction Company filed a lawsuit against a school district claiming the district refused to pay for construction and restoration services provided by Restoration after a school building was damaged by fire. The work had been performed under a contract signed by the school district's superintendent. The value of the work under the initial agreement was over $331,000. The contract was not presented to the school district board for approval. Subsequently, the school district board president signed an amended contract with Restore Construction to repair the school. That contract valued the work at over $6.9 million and was also not presented to the school district board for approval.

Restoration moved forward with the work, and the school district made progress payments to Restoration in an amount of approximately $5.8 million, with a balance of approximately $1.4 million under the contracts when the school district ceased payment. At that point, Restoration sued for breach of contract and later added equitable claims. 

The trial court dismissed the case, finding that the two contracts were "void ab initio" because they were not approved by the school district board and because they were not subject to the competitive bidding process. As a result,Restoration could not recover under these void contracts. The court also dismissed the equitable claims, and Restoration appealed.

On appeal, Restoration argued that the trial court should not have dismissed its equitable claims because even if the contracts were void, Restoration should still be able to recover for the work they performed under a "quantum meruit" argument, which argues that there was a contract "implied by law." Although the appellate court agreed that the two contracts were void, the appellate court rejected the trial court's dismissal of Restoration's quantum meruit claim, finding that Restoration should have been able to proceed on that argument. The court specifically found that there was no case that holds that a quantum meruit claim is barred if a contract was determined to be void. 

In short, the appellate court sent the case back to the trial court for further proceedings on Restorations quantum meruit claim that the school district must pay them for the value of the work they provided to the district. Restore Construction Co. v. Board of Ed of Proviso Township HS Dist. 209, et al., 2019 IL App (1st) 181580

Monday, July 1, 2019

Quorum Forum Episode 26: Local Gov Legislation Update

After an historic legislative session, Ancel Glink Partner and State Rep. Chris Welch joins Kurt Asprooth for a special meeting of Ancel Glink's podcast, Quorum Forum, to discuss a capital bill bringing new casinos, sports betting, and more video gaming terminals to Illinois communities. We also discuss “Tobacco 21,” a new Open Meetings Act exception, and more important legislation affecting local governments. 

You can access this Podcast Episode 26 here.

Questions about new #localgov legislation? Email us at podcast@ancelglink.com!