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

Thursday, March 31, 2022

Upcoming Training on New Requirements for Statements of Economic Interest

Don't forget to join Ancel Glink at our upcoming livestream of our next Quorum Forum Podcast discussing the new requirements for filing your Statements of Economic Interest that is scheduled for next Tuesday, April 5, 2022, at noon. More information about how you can join the podcast via Youtube, Facebook, or Twitter is below:

Quorum Forum Podcast Episode 63

Many local government officers and employees are required to file a statement of economic interests each year and the new questions on this year's form are causing confusion for many filers. However, a careful review of the definitions in the new law will make the questions easier to answer. Join the livestream of Ancel Glink's Quorum Forum podcast on Youtube, Facebook, or Twitter on April 5, 2022 at 12:00 pm (noon CDT) to learn more and share your questions about completing the new statement of economic interests form!

Tuesday, March 22, 2022

Court Upholds Village Ordinance Requiring Sprinklers in Commercial Buildings

Two commercial property owners sued a municipality to challenge its sprinkler ordinance. The businesses claimed that the burden to comply outweighed any benefit of having an automatic sprinkler system installed. They also claimed that the ordinance was unconstitutional because it applied to commercial buildings but not residential dwellings and that the ordinance was an unconstitutional "taking" of their property. The trial court upheld the sprinkler ordinance, finding that it provided a public safety benefit that outweighed the property owners' cost to comply. The court also rejected the owners' equal protection argument, finding that commercial buildings and residential buildings are not the same, so they could be regulated differently by the municipality. 

On appeal, the Appellate Court also found the sprinkler ordinance constitutional. The Appellate Court held that there was a rational basis for the municipality requiring automatic sprinklers in commercial buildings (protection of life and property from fire), and the ordinance was not arbitrary or discriminatory in treating residential and commercial properties differently. The Appellate Court also rejected the businesses' takings claim that the ordinance deprived them of all economic use of their land, finding that their properties continued to be used and generated income for the businesses. 2095 Stonington, LLC v. Village of Hoffman Estates, 2022 IL App (1st) 201026-U.

Monday, March 21, 2022

Court Upholds Village's Finding that Short-Term Rental Use Violated Zoning Code

We don't see a lot of zoning cases that make their way to the Illinois Appellate Court but last week, we saw two which we will report on this week. 

In Wortham v. Village of Barrington Hills, 2022 IL App (1st) 210888, the Village notified a homeowner who was renting out their home as a short-term rental more than 40 times on VRBO that the short-term rental use was not allowed in the R1 district which only permits single-family uses. The homeowner ignored the notice, and continued to rent out their home. The Village sent two additional notices before sending notice to appear before a hearing officer on the alleged Zoning Code violations. The hearing officer found the short-term rental use to be an unlawful commercial lodging use that was not a permitted use in the R1 district under the Village Zoning Code and imposed a fine of $26,250 and ordered the homeowners to cease renting their home out. When the homeowners continued to rent out the home, the Village cited them again, and the hearing officer imposed a second fine and another order to cease the illegal use of the property. The homeowners appealed both administrative hearing decisions to the trial court, which upheld the Village's decisions. The homeowners then appealed that ruling.

On appeal, the Appellate Court reviewed the Village's Zoning Code, specifically to determine whether the short-term rental use was permitted under the R1 regulations as the homeowners argued or constituted an unlawful commercial use as the Village argued. First, the Appellate Court held that the short-term rental use was not a permitted home occupation under the Zoning Code, which was the only lawful commercial use of R1 zoned property. The Court determined that the homeowners' advertisement of the use on VRBO, the parking of multiple vehicles in the driveway during the short-term rental use, and the installation of a keypad on the door gave an outward appearance of a vacation rental business, not a single family residence. Second, the Court found that the short-term rental use was not consistent with the "intent and purpose" of the Zoning Code which included the prevention of the harmful encroachment of incompatible and inappropriate uses into residential areas. Finally, the Court rejected the homeowners' argument that the fact that the Village prohibited short-term rentals but allows longer term leases was unconstitutionally vague because the Zoning Code did not define the appropriate time-frame for unlawful or lawful leases, finding it to be an impermissible facial challenge to the Zoning Code.

In sum, the Appellate Court upheld the Village's citation of the homeowners for improperly using their single family home as a short term rental use in violation of the Village's Zoning Code.

Tuesday, March 15, 2022

Bill Would Require Posting of Notice of Elected Official Vacancies

Senate Bill 2553 will be of interest to units of local government in Illinois with elected officials. The bill is called the Local Official Vacancy Posting Act, and has been approved by the Illinois Senate and is currently in the Illinois Houe. If approved by the House and signed by the Governor, it would require a unit of local government to post every elected official vacancy on its website, if the website is maintained by full-time staff of the government. That notice would have to remain on the website until the vacancy is filled. The bill also requires local governments to forward notice of the vacancy to the county clerk in the county in which the unit is located for posting on the county clerk's website. The bill includes a home-rule preemption. 

Monday, March 14, 2022

PAC Finds Public Body in Violation of FOIA For Redacting "Goodbye Email"

The Public Access Counselor of the Attorney General's office (PAC) issued its fourth binding opinion of 2022 finding a public body in violation of FOIA when it redacted an email from a retiring police chief. PAC 22-004.

A news reporter submitted a FOIA request to a police department asking for a copy of an email that a police chief sent to all Village employees on his last day of employment. The Village initially denied the request in its entirety but later that day amended its response and disclosed a redacted copy of the email, citing section 7(1)(c) (invasion of personal privacy). The reporter then filed an appeal with the PAC, and the Village responded by providing an unredacted version to the PAC for review. The Village argued that it properly redacted portions of the email based on several arguments, including (1) that portions of the redacted email were not "public records" as they were merely a personal goodbye correspondence sent to colleagues and friends, which the Village argued constituted private affairs and not Village business; (2) release of the redacted portions of the email would be an invasion of personal privacy because it contained highly personal thoughts and feelings of the chief; and (3) the opinions expressed by the chief in the email were exempt under 7(1)(f) as they expressed the chief's frank opinions on Village policies and procedures. 

The PAC disagreed with the Village, and ordered it to release the unredacted email to the requester subject to permissible redactions of "private information" such as personal phone numbers and personal email addresses under 7(1)(b). In its opinion, the PAC determined that the chief was still employed at the time the letter was sent and the opinions expressed in the email constituted public records, not private affairs, and were not exempt under any of the cited exemptions. The PAC noted that the "deliberative process" exemption of 7(1)(f) only applies when predecisional opinions actually relate to the process by which policies are formulated, which the PAC found was not the case with the chief's email. 

Friday, March 4, 2022

BREAKING: Governor Extends Disaster Declaration Another 30 Days

UPDATED 3/7/2022 to include links to the new Disaster Declaration and Executive Order 2022-07 that were issued last Friday.

Today, Governor Pritzker extended the State's COVID-19 Disaster Declaration over all counties in Illinois for another 30 days. The Governor also issued EO 2022-07 extending a number of previously issued Executive Orders through April 2, 2022, including the EOs relating to cannabis licenses, Phase 5 reopening plan, EO 2022-06 which relaxed the mask mandate in most places, EO 2021-22 imposing vaccination and testing requirements for certain health care workers (as amended by EO 2021-23, 2021-27, and EO 2022-05) and EO 2021-28 imposing vaccination and testing requirements for day cares, among many others. The new EO 2022-07 also modifies certain mitigation measures at schools. Readers interested in learning how a particular extended EO has been modified should read through EO 2022-07. You can read the Disaster Declaration here and EO 2022-07 here.

As we noted earlier this week, the issuance of a state-wide disaster declaration relating to COVID-19 means that public bodies can conduct remote meetings under section 7(e) of the Open Meetings Act subject to the rules and regulations contained in that statute, including the head of the public body making a local determination that it is not practical or prudent to meet in person.  

A New Quorum Forum Podcast Episode Released: Sunshine Laws for Springtime

A new Ancel Glink's Quorum Forum Podcast episode has been released: Quorum Forum 62: Sunshine Laws for Springtime

Spring is almost here, so we’re celebrating increasing sunshine and sunshine laws with Ancel Glink attorneys. In this episode, we review important Freedom of Information Act and Open Meeting Act decisions that local government should know. 

Wednesday, March 2, 2022

The Open Meetings Act, Remote Meetings, and COVID Measures

There have been a lot of questions recently about the relaxation of certain COVID mitigation measures (such as the mask mandate) and how these changes might affect public bodies in conducting future meetings under the Open Meetings Act. As of today, we don't know whether the Governor will extend his current disaster declaration that was issued on February 4th and is set to expire later this week so we are providing two potential scenarios.

If the Governor does issue another disaster declaration this week, then public bodies can choose to conduct their meetings remotely or in a "hybrid" fashion subject to the rules contained in section 7(e) of the Open Meetings Act. That section allows public bodies to meet remotely so long as certain conditions are met, including (1) the State has issued a disaster declaration relating to a public health situation that covers the public body's area and (2) the head of the public body makes a local finding/determination that it is not practical or prudent to meet in-person because of the public health situation and (3) the public body follows all of the statutory rules for these remote meetings, including ensuring public access, recording the meeting, taking roll call votes, etc. It will be up to individual public bodies (and specifically the head of that body) to determine whether local conditions are such that an in-person meeting is not practical or prudent due to the COVID-19 pandemic.

If the Governor does not issue another disaster declaration this week, then once the current declaration expires, meetings of public bodies will need to be conducted in person and remote attendance would have to follow the "traditional" rules under section 7(a)-(d) of the OMA would apply so long as the public body has adopted a policy to allow remote attendance under this statute. Those rules allow an individual member of the public body to attend remotely if there is a physical quorum of the body physically present at the meeting, the public body approves the remote attendance, and the member's absence is due to (1) personal illness or disability; (2) employment purposes or business of the public body or (3) a family or other emergency. 

We will keep you posted as more information comes out but stay tuned to what the Governor does over the next few days. As with all things COVID, the situation remains fluid and could change rapidly. 

Tuesday, March 1, 2022

FOID Card Holders Can Obtain Own FOID Card Application and Records

In 2019, two individuals submitted FOIA requests to the Illinois State Police (ISP) seeking copies of their own applications for a firearm owners’ identification (FOID) card and ISP’s FOID card denial letters. ISP denied both FOIA requests, on the basis that the applications and denial letters are expressly exempt from disclosure under FOIA exemption 7.5(v), which exempts the following: 

Names and information of people who have applied for or received Firearm Owner’s Identification Cards under the Firearm Owners Identification Card Act or applied for or received a concealed carry license under the Firearm Concealed Carry Act, unless otherwise authorized by the Firearm Concealed Carry Act; and databases under the Firearm Concealed Carry Act, records of the Concealed Carry Licensing Review Board under the Firearm Concealed Carry Act, and law enforcement agency objections under the Firearm Concealed Carry Act.” 5 ILCS 140/7.5(v).             

Both requestors sued ISP arguing that the records were improperly withheld under FOIA, and both the circuit court and appellate agreed, finding that ISP failed to prove that exemption 7.5(v) authorizes withholding the personal applications or FOID card denial letters of the applicants that are the subject of the records. Hart v. Illinois State Police. Because both requesters consented in writing to the release of their personal information by submitting FOIA requests seeking their own FOID card applications and denial letters, the court held that ISP was not prohibited from disclosing the requesters' own personal information to the requesters. Otherwise, the court reasoned that it makes no sense for a public body to withhold a person’s name and other personal information when that person already knows their own personal information and consents in writing for the public body to release that information.

Post Authored by Eugene Bolotnikov, Ancel Glink