Updates on cases, laws, and other topics of interest to local governments

Subscribe by Email

Enter your Email:
Preview | Powered by FeedBlitz

Subscribe in a Reader

Follow Municipal Minute on Twitter


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

Monday, July 31, 2023

Court Finds Criticism of Police Chief by Former Officer Not Actionable Under First Amendment

A former police officer brought a lawsuit against the Police Chief alleging that his First Amendment rights were violated. The officer had raised concerns about the Chief's actions at a fire and police commission meeting and claimed that the Chief harassed and retaliated against him because of his protected speech. The district court dismissed the lawsuit, finding that the officer's criticism of the Chief was not First Amendment protected speech because he made those remarks in his role as a public employee and not a private citizen. The Seventh Circuit Court of Appeals agreed with the district court, holding that a First Amendment retaliation claim requires a showing that the challenged speech was constitutionally protected, which the officer could not demonstrate in this case because the officer's criticism of the Chief was made as a public employee and not actionable under the First Amendment. Fehlman v. Mankowski.

Thursday, July 27, 2023

Court Rules in Favor of School District in Impact Fee Dispute with Builder

Like many other municipalities, the City of Sycamore has enacted an impact fee ordinance that requires subdividers and developers to pay a fee in lieu of school sites to be transmitted to the school districts. The school impact fee is imposed on new residential dwelling units and the amount of the fee is based on the number of bedrooms of the proposed dwelling unit. The school impact fees imposed by the City for single family dwelling units were $817 for a two-bedroom home; $3,269 for a three-bedroom home; $5,560 for a four-bedroom home; and $4,310 for a five-bedroom home.

A school district filed suit against a home builder alleging that the builder had misrepresented in its building permit applications the number of bedrooms for some of the residential dwellings in order to pay a lesser school impact fee, depriving the district of at least $66,649 in impact fees. The school district presented testimony that the builder had submitted building plans for a certain number of bedrooms but later added closets to rooms described as dens or offices to create additional bedrooms without paying the additional impact fee attributable to the modified home. 

The builder argued that some of the homes had been modified after permits had been issued but that the City (as collector of the impact fees) did not have a process in place to require the builder to supplement the impact fees. The builder also argued that the school district was applying the wrong definition of "bedroom," which the builder argued required an egress window, smoke detector, and a carbon monoxide detector to qualify as a bedroom, as required by the City's building codes.

The trial court ruled in favor of the school district on its argument that the developer was required to pay impact fees for bedrooms that were "designed and ultimately used principally or primarily for sleeping purposes," applying the definition of bedroom contained in the City's Unified Development Ordinance. The court also rejected the builder's argument that the school improperly deposited the school impact fees. Board of Ed. of Sycamore v. Silverthorne Dev't

The builder appealed and the Appellate Court upheld the ruling in favor of the school district. First, the Court held that the proper definition of bedroom is the one contained in the City's UDO, which is where the impact fee regulations were contained. The UDO focuses on the residential uses and the need for adequate school facilities rather than the building code which focuses on building safety. Applying the UDO definition of bedroom, the Court held that the testimony and evidence supported the school district's argument that the rooms at issue (described in the building permit application as a den/office with a closet added later) were designed to be used principally or primarily for sleeping purposes. The Court also upheld the trial court's ruling that the school district did not improperly deposit impact fees into the wrong fund, determining that the state statute authorizing impact fees does not require school impact fees to be deposited into a special fund, just that the fees only be used for proper purposes as set out in the statute. In sum, the Court upheld the ruling in favor of the school district.

Wednesday, July 26, 2023

Appellate Court Upholds Finding that Disputed Road was a Public Road

An Appellate Court recently resolved a dispute as to whether a roadway was a private driveway (as claimed by the owner of property on both sides of the road) or a public roadway (as claimed by the county and an intervening party who argued the road provided access to other property, upholding the trial court's ruling that the roadway was a public road. Hicks v. Pope County Board

After the county informed the plaintiffs that they had to remove certain obstructions from the roadway, the plaintiffs filed suit to ask the trial court to declare the roadway as a private driveway. The county presented evidence to support its argument that it was a public road, including the county plat book, topographical maps, traffic maps, highway maps, and various other records to support its argument that the road was, in fact, public. The county also presented witnesses who testified that they had used the road for decades until the plaintiffs obstructed it. The plaintiffs testified that they had maintained the road since they moved to the property and had improved it from a dirt road to a gravel road at their expense. The trial court held that the evidence supported the county's argument that the road was public prior to the plaintiffs moving to their property and ruled in favor of the county. The plaintiffs appealed and the Appellate Court upheld the ruling in favor of the county that the road was public.

Tuesday, July 25, 2023

7th Circuit Upholds Dismissal of Unsuccessful Candidate's Civil Rights Lawsuit

The Seventh Circuit Court of Appeals recently upheld the dismissal of a lawsuit filed by a candidate for a States Attorney office against various public officials claiming that their actions violated his civil rights. Reardon v. Danley et al.

Reardon ran for States Attorney in Coles County against the incumbent, one of the defendants. After he lost the election, he filed a lawsuit that included the following claims: (1) seeking an injunction against the release of certain Facebook account information that was the subject of a subpoena issued by the Mattoon Police Department, which subpoena had been upheld by a circuit court judge; (2) that a county board member violated his First Amendment rights by removing one of his campaign signs from a resident's lawn a few weeks before the election; and (3) that the Police Chief and City violated his First Amendment rights when the Chief endorsed his opponent on the City's Facebook page.

The Court of Appeals rejected all of Reardon's claims and upheld the district court's dismissal of his case. First, the Court held that injunctive relief was not an appropriate civil rights remedy to stop the release of the subpoenaed records. Second, the Court held that Reardon failed to demonstrate how the county board member was acting under any authority of the county or in furtherance of his county board member role when he removed the campaign sign. Finally, the Court held that Reardon failed to show how the Chief's Facebook post violated any of his constitutional rights. 

Monday, July 24, 2023

Appellate Court Upholds $1.7 Million in Fines for Violations of Municipal Codes

An Illinois Appellate Court recently upheld a municipality's imposition of fines against property owners for certain ordinance violations relating to six accessory structures on the owners' property, including a tree house, shed, dog house/chicken coop, gazebo, detached garage, and covered patio. The municipality brought an ordinance enforcement action against he owners for failure to obtain permits for the structures, violations of building and electrical codes, setback encroachments, height violations, and the illegal keeping of chickens on the property. The trial court found in favor of the municipality and imposed fines of $100/day the violations had continued on the property ($100 was the minimum fine in the municipal code) for 20 continuing code violations on the property in the total amount of $1,766,000. 

The owners appealed, claiming the fines were excessive in violation of the Eighth Amendment to the U.S. Constitution and that the evidence presented by the municipality was insufficient to support the fines. On appeal, the Appellate Court rejected the owners' excessive fines claim. The Court acknowledged that the fine was large but noted that it was calculated based on 20 separate code violations which remained unabated for a lengthy period of time (from 2018 to 2021). Second, the Court determined that the evidence presented before the multiple hearings conducted by the trial court sufficiently demonstrated the owners' continuing violations of municipal codes up to November 4, 2021, although the Court did reduce the fine for the period of November 4, 2021 to December 30, 2021. In sum, the Appellate Court upheld the $1,766,000 fine that was imposed by the trial court, but reduced the fine by $5,600. City of South Beloit v. Casique, et al.

Thursday, July 20, 2023

PAC Upholds Denial of Police Reports Involving Both Juvenile and Adult Arrests

The PAC issued its tenth binding opinion for 2023 finding a public body did not violate FOIA in withholding arrest report in its entirety that involved a minor arrestee even though the report also included information about an adult arrestee. PAC Op. 23-010

The public body had denied a FOIA request filed by a reporter for certain police records and withhold the reports in their entirety, citing the Juvenile Court Record Act which protects the confidentiality of minors who have been arrested. The requester filed a request for review with the PAC, arguing that the police report should have been released with redactions since the report also involved an adult arrestee who was not protected under the JCRA. 

The PAC reviewed the JCRA and found that it protected the police reports from release because they constituted "juvenile law enforcement records" under the JCRA since they concerned the investigation of multiple minors and charges against one of the minors. The PAC stated that the JCRA "does not permit disclosure of any portion of the report to an unauthorized party, regardless of the extent to which a portion of the report focuses on an adult arrestee." The PAC also noted that the public body had released other information about the adult arrestee, including the arrest information sheet, arrest card, and mugshot report. 

Wednesday, July 19, 2023

Illinois Supreme Court Rules on Constitutionality of Challenged Provisions of the SAFE-T Act

We previously reported on the SAFE-T Act that modified Illinois state statutes in a number of ways, including provisions regarding cash bail and pretrial release. The Safety, Accountability, Fairness, and Equity Today Act (Act) was enacted by P.A. 101-652, as amended by P.A. 102-1104. As many of you may recall, the constitutionality of the Act was challenged in a Kankakee County circuit court and last December, the circuit court held that certain provisions of the Act violated the Illinois Constitution's bail clause, the crime victims clause, and the separation of powers clause. The State appealed the circuit court's order, and the Illinois Supreme Court issued a ruling today reversing that order, vacating the circuit court's stay effective September 18, 2023, and directing circuit courts to conduct hearings consistent with the Act and Illinois Supreme Court rules implementing the new pretrial release provisions of the Act. 

The Illinois Supreme Court's rationale for reversing the circuit court's order is set out in its opinion, but the crux of the ruling is the Court's rejection of the argument that the Illinois Constitution mandates that monetary bail is the only means to ensure criminal defendants appear for trials or the only means to protect the public. The Court emphasized that the Illinois Constitution creates a balance between the individual rights of defendants and individual rights of crime victims, holding that the Act's pretrial release provisions include procedures that balance those rights. Rowe v. Raoul, 2023 IL 129248.

Tuesday, July 18, 2023

Court Upholds Denial of PSEBA Benefits to Firefighter

After a firefighter/paramedic was granted an on-duty disability pension for a back injury, he applied for benefits under the Public Safety Employee Benefits Act (PSEBA), which provides health insurance benefits for police officers and firefighters who are catastrophically injured in the line of duty. After a hearing on the application, the Village denied the PSEBA benefits, finding that although the firefighter was injured on duty, the circumstances of his injury did not meet the requirements of PSEBA that the injury occurred as the result of a response to an emergency. The firefighter appealed to the Illinois Appellate Court which upheld the Village's denial of PSEBA benefits.

The firefighter had argued that he was injured when he slipped on ice stepping out of an ambulance at an emergency call. The Village, on the other hand, claimed his injury occurred later in the day, after he had returned to the station, when he was trying to start a chainsaw and moving heavy tools. The Appellate Court reviewed the evidence submitted before the Village's hearing examiner and determined that the evidence supported the Village's decision to deny PSEBA benefits. First, there was no corroborating evidence that the firefighter reported the ice incident to a supervisor. Second, there were no eyewitnesses to the ice incident. Third, none of the incident reports for that day reference the ice incident; instead, all of the reports discussed the chain saw and tool incident as causing his back injury. The Court concluded that the hearing examiner's analysis of the evidence and application of the PSEBA test in reaching his decision was not arbitrary and his decision to deny benefits was not unreasonable. Thomsen v. Village of Bolingbrook

Friday, July 14, 2023

Court Rules in Favor of Village on Neighbor Zoning Lawsuit

The Illinois Appellate Court recently ruled in favor of a municipality in a lawsuit filed by property owners challenging the Village's approval of rezoning and a PUD for a newly annexed development. Lys v. Village of Mettawa, 2023 IL App (2d) 220255-U.

The Village had annexed 170 acres of land that had been developed in unincorporated Lake County as a corporate headquarters. The annexation ordinance included certain provisions regarding the company's ability to continue operation as it did in the County with certain restrictions on future development that would require Village zoning relief. Three months after annexation, the company filed an application for rezoning of the property to the O-H "office/hotel district" and approval of a planned unit development for the existing uses. The Village conducted public hearings on the rezoning and PUD request and the request was ultimately approved.

The plaintiffs (neighboring residents) filed a three count complaint shortly after the zoning request was approved, claiming that the zoning approval violated their due process rights, among other claims. The trial court ruled in favor of the Village on the due process counts. A count against the property owner regarding certain fencing remained pending. The plaintiffs appealed the ruling in favor of the Village on the due process claims.

The Appellate Court also rejected the plaintiffs' due process claims finding that there was no evidence of procedural irregularities in the zoning process and that the rezoning approval ordinance had a presumption of validity. The Court noted that the plaintiffs acknowledge they received notice of the hearings and were given an opportunity to be heard at multiple hearings and meetings. The Court also rejected their argument that the negotiations between the Village and property owner constituted "contract zoning" or were improper secret meetings, finding no factual basis to support that argument. Instead, the Court found the zoning approval to be an example of valid conditional zoning that was approved after public hearings. The Court also rejected the plaintiffs' LaSalle Factors substantive due process argument, finding that the record overwhelmingly showed that the Village had a reasoned, rational basis for rezoning the property and did not act arbitrarily in approving the rezoning request. As a result, all claims against the Village were resolved in the Village's favor.

Friday, July 7, 2023

New Laws Affect Illinois Park Districts

Today, we report on a couple of new Illinois laws that affect park districts.

P.A. 103-146 amends the Park District Code to authorize park districts to enter into a lease or other agreement related to the acquisition of solar energy, including the installation, maintenance, and service of solar panels, equipment and similar technology. The lease or agreement is limited to a term not to exceed 2 1/2 times the term authorized for equipment or machinery leases (8 years), and must be approved by a vote of 2/3 of the park district board.

P.A. 103-153 amends the Child Care Act of 1969 to amend the definition of "day care center" that is subject to the Act to expressly exempt certain programs offered by park districts for children 3 years or older so long as the program does not meet more than 3 1/2 continuous hours at a time or less and no more than than 25 hours during any week, and provided the park district conducts a background investigation on employees of the program pursuant to section 8-23 of the Park District Code.

P.A. 103-235 amends the Park District Code to expand the authorized use of the special "police program" tax that is authorized by Section 5-9 of the Park District Code to include the implementation and maintenance of "public safety and security measures" within the parks and playgrounds maintained by the district. The new law defines "public safety and security measures" to include security personnel, special events staff, safety audits, safety drills, active shooter training, security improvements, or safety-related upgrades to buildings, grounds, or facilities such as security lighting, video cameras, medical detectors, and emergency call boxes. Those districts where a majority of voters have already approved a police program tax by referendum are authorized to use their tax revenues for these new public safety and security measures. 

Thursday, July 6, 2023

Wednesday, July 5, 2023

Act Amends Drones as First Responders Act

P.A. 103-101 was recently signed by the Illinois Governor and amends the Drones as First Responders Act to provide law enforcement agencies with more latitude to use drones at certain special events, parades, races, and similar routed events. The Act also includes a number of other changes regarding drone usage by law enforcement. 

First, the Act modifies the language that allowed law enforcement agencies to use drones for locating missing persons to apply to any search and rescue operation or aiding a person who cannot otherwise be safely reached, so long as the agency is not undertaking a criminal investigation.

Second, the Act expands the exemptions for law enforcement agency use of drones to include the following new activities:

  • To conduct infrastructure inspections of designated buildings at the request of a local government agency.
  • To demonstrate the capabilities and functionality of police drones for public relations purposes.
  • To locate victims, assist with victi health or safety needs, or to coordinate emergency responses in response to PSAP dispatched calls for service.

Third, the Act adds a new exemption to allow use of drones by law enforcement agencies at a routed event or special event. A routed event is defined as a parade, walk or race, that is hosted by a state or local government and open to the public with estimated attendance of more than 50 people. A special event includes concerts or food festivals hosted by state or local governments that meet certain estimated attendance numbers based on the population of the venue, as set out in the Act. 

In order to use a drone for a routed event or special event, notice must be posted at least 24 hours prior to the event about use of the drone for participant safety. The notice should be posted at major entry points. 

The Act allows the agency to use the drone in advance of the event to create maps and determine appropriate access routes, staging areas, and traffice routes so long as no personal identifying information is recorded and that no recorded information is used in criminal prosecutions. During the event, the drone can be used to detect any breach of the event space, evaluate crowd size, identify public safety issues, assist in emergency response to a real-time incident, and assess traffic and pedestrian flow. 

The Act modifies the record retention requirements of the Act, including requiring information gathered by the drone for these events must be destroyed within 24 hours except for information relating to terrorist attack, locating a missing person, or photographing a crime or traffic scene, which would have to be destroyed within 30 days. The Act does include some exceptions to these requirements for training or criminal investigations.

Fourth, the Act prohibits use of facial recognition except to counter a high risk of a terrorist attack, to prevent imminent harm to life, or to prevent the imminent escape of a suspect or destruction of evidence.

The Act aksi expressly prohibits equipping a drone with a weapon.

Finally, the Acct requires each law enforcement agency that uses drones to adopt a policy consistent with the Act.

Monday, July 3, 2023

PAC Orders Release of Police Report Involving Crimes Against Minor Victim

The Public Access Counselor of the Illinois Attorney General (PAC) issued its ninth binding opinion for 2023 finding a public body in violation of FOIA for withholding police reports for a teacher who had been arrested and convicted of a crime against a minor victim. PAC Op. 23-009.

A reporter had filed a FOIA request for records pertaining to the conviction of a public school teacher for criminal behavior against a minor student. The police department denied the request, arguing the report was exempt from release because disclosure would constitute an unreasonable invasion of personal privacy to the alleged minor victim. The reporter appealed to the PAC, and the PAC disagreed with the police department's claim that release of the report would be an invasion of privacy of the minor, finding that identifying information could be redacted and the remainder of the report released. Although the PAC acknowledged that a 2017 Appellate Court had issued an opinion finding that the public has little interest in the salacious and explicit details of crimes against a minor so the entire report could be withhold because disclosure would constitute an invasion of personal privacy of the minor victim; nevertheless, the PAC distinguished that case and ordered the police department to release the requested report to the reporter, with redactions of the minor's identifying information and limited instances where explicit details were included.

In its conclusion, the PAC stated it would provide the police department with a copy of the report with its own notes as to which portions of the record the PAC believed could be redacted. This is the first opinion that we are aware of that included such specific direction from the PAC.

Note that the opinion does not deal with any claim that the teacher had a right to privacy in not having the report released, likely because the teacher had been charged, convicted, and sentenced for his crimes.