Court Rejects Challenge to Residential Rental Registration Ordinance

Court Rejects Challenge to Residential Rental Registration Ordinance

  Monday, October 31, 2022    Julie Tappendorf

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An Illinois Appellate Court recently ruled in favor of a village in a challenge to the constitutionality of the village's residential rental registration ordinance. Reynolds v. Village of Creve Coeur. 

In 2006, the village enacted an ordinance requiring registration of residential rental units, including mobile homes. The annual fee for registration was $5. In 2013, the village amended the ordinance to raise the fee to $25 per year and to authorize the village to inspect residential rental units for compliance with village building, utility, nuisance, and other ordinances and regulations. 

The owner of a mobile home park sued, claiming the village lacked authority to pass the rental registration ordinance, that federal law preempted the ordinance, and that the registration fee was an impermissible tax. Ultimately, the trial court dismissed all three counts of the lawsuit and the owner appealed the dismissal of count II of his complaint which had argued the ordinance was preempted by federal law. 

On appeal, the owner argued that the ordinance was preempted by the National Manufactured Housing Construction and Safety Standards Act of 1974 ("Act") and federal regulations adopted by HUD. The Appellate Court looked at the preemption provision of the Act which restricts state and local governments from adopting construction and safety standards on mobile homes that differ from HUD regulations. First, the Court determined that the owner's challenge to the constitutionality of the registration fee was not preempted by the Act because the fee did not impose a "construction or safety standard." Second, the Court held that any challenge to the ordinance's inspection provisions was not yet "ripe" because the owner did not claim the village had ever tried to inspect his mobile homes or enforce any ordinance violations against him so there was no "dispute" for the court to decide. Finally, the Court rejected the owner's claim that the ordinance was "unconstitutionally vague," finding that the owner waived that issue because he failed to raise it at the trial court. In sum, the Court upheld the ruling in favor of the village that dismissed the owner's challenge to the village's residential rental ordinance.

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Court Finds Referenda to Recall Mayor Null and Void

Court Finds Referenda to Recall Mayor Null and Void

  Thursday, October 13, 2022    Julie Tappendorf

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In Henyard v. Municipal Officers of Dolton, an Illinois Appellate Court found two referenda authorizing recall of a mayor and subsequently recalling the mayor null and void.

The village's mayor (also known as village president) was elected during the 2021 Consolidated Election. In December 2021, the village board placed two referenda on the general primary election ballot. The first referendum asked whether voters wanted to adopt a recall mechanism that would apply to the mayor effective upon certification of the general election results. The second referendum asked voters if the majority passed the recall mechanism, whether the mayor should be recalled and removed from office.

The mayor filed a lawsuit asking the court to find both referenda invalid and unconstitutional. The circuit court held the referendum provisions were null and void and directed the county clerk to take reasonable efforts to notify early voters of the court’s action; however, the appellate court "stayed" the ruling because early voting had started. The appellate court directed the clerk to conduct the referenda elections as planned, but prohibited the clerk from proclaiming the results as they would have no force or effect until further court order. The election took place, and the state’s attorney reported to the court that both referenda were approved,  and the appellate court then issued its ruling that the referenda were null and void.

The appellate court held that the village had no authority to recall a village official midterm. The court pointed to Illinois history of no public official ever being recalled midterm by a referendum vote – regardless of whether a recall mechanism was in place before the public official’s term began. The court also held the referendum was not clear or precise enough to implement a valid local recall process. The court stated a local referendum mechanism needs to be precise and clear, so it does not leave gaps to be filled by the legislature or municipal body. The court called the village's referenda “fatally vague and ambiguous” regarding the information needed for its implementation and enforcement.

As such, the appellate court concluded that the two referenda were null and void and directed the county clerk not to take an official tally of the votes nor announce the election results.

Post Authored by Katie Nagy & Julie Tappendorf, Ancel Glink

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PAC Finds Public Body Exceeded Scope of OMA Exception in Closed Session

PAC Finds Public Body Exceeded Scope of OMA Exception in Closed Session

  Wednesday, October 12, 2022    Julie Tappendorf

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In July 2022, the PAC received a complaint alleging that a school district board (School Board) improperly entered closed session during 16 separate meetings to discuss the Illinois General Assembly granting the school district a waiver to build a new school using federal COVID-19 pandemic relief funds. The complaint alleged that before the School Board's June 27, 2022 announcement, the Board was considering constructing a new school building but no prior School Board agenda items or minutes indicated that the Board discussed or voted on that waiver, or that the School Board even discussed building a new school.

In binding PAC Op. 22-012, The PAC concluded that the School Board exceeded the scope of OMA exception 2(c)(5), which authorizes public bodies to go into closed session to discuss the purchase or lease of real estate by a public body, including meetings held for the purpose of discussing whether a particular parcel should be acquired. Specifically, the PAC determined that the School Board discussed funding for the school, legislative considerations, and various other topics concerning the project that were not considered in the context of the narrow topic of purchasing or leasing property for the school. The PAC rejected the School Board's argument that OMA exception 2(c)(5) allowed these collateral discussions because the School Board would eventually have to acquire property if it were to build a new school.

Post Authored by Eugene Bolotnikov, Ancel Glink

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Quorum Forum Podcast Episode 65: Highlights from the 2022 APA-IL Conference

Quorum Forum Podcast Episode 65: Highlights from the 2022 APA-IL Conference

  Tuesday, October 11, 2022    Julie Tappendorf

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 Ancel Glink's Quorum Forum Podcast is back with a brand new episode: Quorum Forum 65: Highlights from the 2022 APA-IL State Conference. A summary of what you will find on this episode is below.

Ancel Glink loves zoning, planning, and land use law. Join us for a special episode reflecting on the 2022 APA-IL State Conference, featuring highlights shared by Ancel Glink attorneys and law clerks. Topics include sign regulations, short-term rentals, affordable housing, and much more! 

Email your questions to podcast@ancelglink.com.

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Court Finds in Favor of Board of Fire & Police Commissioners in Discharge Dispute

Court Finds in Favor of Board of Fire & Police Commissioners in Discharge Dispute

  Friday, October 07, 2022    Julie Tappendorf

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In Scatchell v. Board of Fire & Police Commissioners for the Village of Melrose Park, et al., an Illinois Appellate Court upheld the decision of a local Board of Fire and Police Commission ("BFPC") to terminate the employment of a police officer based on several charges of misconduct.

In late 2017, a police officer took paid sick leave to recuperate from an on-duty injury. While on sick leave, the police department learned that the officer was reported to be out hunting when—based on doctor’s orders and department policy—he should have been resting at home. The department reached out to a branch of the Illinois Department of Natural Resources to request that conservation officers be on the lookout for the officer. A conservation officer eventually did spot the officer hunting with  several others, including a former police officer who was also a convicted felon and was not permitted to possess or use a weapon. When confronted by the conservation officer, the officer claimed he “could not say” whether his companion had fired a shotgun while they were out hunting. 

The department then investigated whether the officer abused his sick leave and whether he violated any department policies in his interaction with the conservation officer. During the investigation, the investigator issued the injured officer a Garrity warning, advising him that he was immune from criminal prosecution for any statements made during the investigation but could face discipline or discharge for refusing to answer questions. The injured officer acknowledged and signed the immunity notification.

During the BFPC's disciplinary hearing about these incidents, the officer refused to testify, invoking his Fifth Amendment right not to incriminate himself. The department renewed the injured officer’s Garrity immunity, reminding him that he could be disciplined for insubordination for not answering the questions presented during the disciplinary hearing. When he still refused to testify, the department added an insubordination charge. The BFPC decided to discharge the officer based on eight counts of disciplinary charges, including refusal to obey his superior’s direct order to testify during the hearing. The officer appealed, and the case made its way to the Illinois Appellate Court.

One of the issues that was discussed at length in the opinion was the nature of the Garrity immunity, which protects government employees from being prosecuted for statements they make during an internal investigation, so the government employee is not forced to choose between being fired and incriminating themselves. Once the immunity attaches, however, and the employee faces no possible criminal charges, he or she may be discharged for insubordination for refusing to answer questions related to potential misconduct.

Because the injured officer had been issued a Garrity warning, which remained intact throughout the investigation into his misconduct and the BFPC hearing, the Court decided the BFPC was justified in terminating the officer for insubordination (among several of the other disciplinary charges filed against him).

While the decision of the Court was quite detailed and lengthy, it is worth reading for an understanding of Garrity immunity and the Illinois Administrative Review Law.

Post Authored by Erin Monforti & Julie Tappendorf, Ancel Glink

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