Court Upholds Road Impact Fees Imposed Through IGA and Annexation Agreement

Court Upholds Road Impact Fees Imposed Through IGA and Annexation Agreement

  Thursday, November 30, 2023    Julie Tappendorf

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An Illinois Appellate Court recently validated an intergovernmental agreement (IGA) that required the municipalities subject to the IGA to require, as a condition of annexation, that developers pay impact fees for road improvements and determined that a developer was required to pay the fees. Habdab v. Lake County.

In 2009, Mundelein (Village), Lake County (County), and two other municipalities entered an IGA to provide for construction funding for highway improvements that would serve each municipality. The IGA required that half of the costs of the improvements be paid by the public and the other half be paid by impact fees on future developers who build near the improvements. The fee amounts were calculated depending on the size and location of each parcel. The IGA required the municipalities to require that developers proposing to annex property into the municipality to enter into annexation agreements that would include provisions stating that a developer’s plans would not receive final zoning approvals until the required impact fees were collected.

In this case, a developer purchased various parcels within the highway improvement areas of the Village. Neither the annexation agreement nor its amendments included provisions requiring the developer to pay the road impact fees although two of the agreements included language that the developer did not agree to pay the fees. When the Village and County tried to collect the impact fees, the developer filed a lawsuit to avoid payment. The circuit court ruled in favor of the Village and County finding the developer was responsible to pay the road impact fees.

On appeal, the developer argued the following: 

(1) the road impact fees violated state statute, specifically, the Impact Fee Law; 

(2) the imposition of the road impact fees violated his constitutional rights; and 

(3) the developer never agreed to pay the road impact fees through the annexation agreements.

First, the Appellate Court held that the IGA impact fees were not subject to the Impact Fee Law. Under the Impact Fee Law, “road improvement impact fees” are charged by a unit of local government as a condition for a building permit or certificate of occupancy. Here, the IGA fees were imposed as a condition of an annexation agreement and not a permit or certificate, so the Impact Fee Law did not apply.

Second, the Appellate Court rejected the developer's argument that the impact fees were unconstitutional conditions. First, the Court found a sufficient connection between charging the developer fees for road improvements and the stated purpose for imposing the fees which was to reduce traffic congestion. Second, the Court found the fees were roughly proportional to their impact because they were based on the size and location of each parcel. As a result, the Court found that the doctrine of unconstitutional conditions did not apply to the IGA road impact fees so the fees did not constitute an unconstitutional taking without just compensation.

Finally, the Appellate Court rejected the developer’s argument that it never agreed to pay the IGA fees. The Court noted that the annexation agreement expressly stated the developer would pay the IGA fees if a legal challenge failed and, since the developer’s legal challenge was rejected, the developer was required to pay the IGA impact fees.   

Post Authored by Daniel Lev, Ancel Glink

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Municipality Properly Denied Liquor License Based on Previous Denial of a Business License

Municipality Properly Denied Liquor License Based on Previous Denial of a Business License

  Tuesday, November 28, 2023    Julie Tappendorf

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A local liquor commission denied a liquor license to a proposed social club based on the proposed club's failure to obtain a business license, which had been previously denied because of a lack of parking for the business. The proposed club's owner appealed the denial to the State Liquor Commission, which upheld the denial, and the owner appealed to the circuit court. 

The circuit court upheld the denial, finding that both the local liquor commission's and the State Liquor Commission's decisions denying the issuance of a liquor license were "well-supported by the record." On appeal to the Appellate Court, the proposed club's owner argued that the denial was contrary to state statute and a violation of his civil rights. The Appellate Court rejected the owner's arguments and upheld the denial of the liquor license, finding that the municipality properly denied a liquor license where the proposed club had been previously denied a business license because of a lack of sufficient parking for the club. Sledge v. Village of Melrose Park.

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Court Upholds Dismissal of Hunter’s Case Against Forest Preserve District

Court Upholds Dismissal of Hunter’s Case Against Forest Preserve District

  Monday, November 27, 2023    Julie Tappendorf

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A hunter’s lawsuit against a forest preserve district (District) claiming his constitutional rights were violated by the District because of restrictions on his ability to hunt on private land was recently dismissed in Brenczewski v. Forest Preserve District of Will County.

In 1996, the owners of a large parcel of land gave a hunter permission to hunt on their land, without charge. Over the next 20 years, the hunter claimed District employees interfered with his access to the private property and harassed him on multiple occasions. In 2020, District purchased a small piece of the private property, and as part of that purchase agreement, the owners revoked the hunter's permission to enter the property to hunt. The hunter then filed a lawsuit alleging the District violated his constitutional rights and interfered with a business interest between the hunter and the private property owners.

The trial court dismissed the constitutional claim, finding that a "permission to hunt" was not a right protected by the Constitution. The court also dismissed the hunter's business expectancy claim, finding the District immune from liability as a government entity. On appeal, the Appellate Court upheld the dismissal but on different grounds. As to his constitutional claim, the Court held that there was no constitutional violation because there was no government actor involved since any "right to hunt" on the land was between private parties - i.e., the owners of the private property and the hunter. The property owners termination of that "right" because it sold a portion of its property to a government actor did not result in the government violating any constitutional rights. On the business expectancy claim, the Court held that because the permission to hunt was for a non-commercial purpose and provided at no charge, there was no business relationship so there could be no business expectancy claim. 

Post Authored by Daniel Lev, Ancel Glink

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Illinois General Assembly Fall Session

Illinois General Assembly Fall Session

  Wednesday, November 15, 2023    Julie Tappendorf

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The Illinois General Assembly adjourned its fall veto session last week. Before the session ended, the General Assembly acted on a few bills of interest that may be of interest to local governments. We summarized just a few of these below but note that these bills have not yet been enacted and are still awaiting Governor action. We will provide updates if these bills become law.

Electric Vehicle Charging Act Amendment (SB 0384)

We previously reported on the Electric Vehicle Charging Act. If signed by the Governor, this would clarify current language in the Act that refers to multi-family housing. Instead of using both “multi-unit” and “multifamily” residential buildings, this bill solves the ambiguity by only using the term “multifamily” residential buildings. Also, the bill would expand the definition of who is subject to the Act to include unit owners, tenants, landlords, associations of both newly constructed and existing single-family homes, and multifamily residential buildings with parking spaces.

2024 Township Elections (SB 0690)

If signed by the Governor, this bill would prevent a municipality from placing a mental health measure on their primary or general election ballot in 2024 if that municipality is in the same township where a community mental health measure was approved on the 2022 general election ballot.

Eligibility for Public Office (HB 0351)

If signed by the Governor, this bill would do two things. First, it would create a task force comprised of officials responsible for reviewing what criminal conduct currently disqualifies individuals from holding public office and making recommendations as to what criminal conduct should prevent an individual from holding public office. Then, the task force would produce a report, due May 1, 2025, to share its findings. Second, the bill would ban any person convicted of a felony, bribery, or perjury while serving as a public official from holding any local public office unless that person’s conviction was reversed or pardoned by the Governor.

Post Authored by Daniel Lev, Ancel Glink

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Record Creation Requirements of FOIA

Record Creation Requirements of FOIA

  Wednesday, November 08, 2023    Julie Tappendorf

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As a general rule, the Illinois Freedom of Information Act (FOIA) does not require a public body to create records – instead, it requires a public body to provide access to records the public body already has in its possession or under its control, subject to applicable exemptions. However, there are a few provisions in FOIA that do require the creation, retention, and, in some cases, the posting of certain records by public bodies. These requirements are listed below:

1. List of documents or categories of records that are immediately disclosable upon request.
2. Current list of all types or categories of records under the control of the public body. 
3. A description of the manner in which electronic records will be provided to persons who do not have reasonable access to computers or printers.
4. A brief description of the public body.
5. A short summary of the public body’s purpose.
6. A block diagram of its functional subdivisions.
7.  Total amount of the operating budget.
8. Number and location of the public body’s offices.
9. Approximate number of full and part time employees.
10. Membership of all advisory boards, commissions, committees, or councils.
11. Description of the method by which persons can file FOIA requests.
12. Directory of FOIA Officers.
13. Address where FOIA requests can be directed.
14. FOIA fees.

Requirement 1 is contained in Section 3.5 of FOIA and is required to be developed by the FOIA Officer. Requirement 2 is contained in Section 5 of FOIA and must be maintained and made available upon request. A public body could meet both requirements by creating a list of the general categories of records that the public body maintains, and identifying on that list which of the records are immediately available upon request. For example, records that are posted on the public body’s website (e.g., ordinances, codes, minutes, agendas) would be the type of records that are immediately available under Requirement 1, as well as any paper records that the public body maintains and could make readily available (e.g., zoning map, OMA total compensation chart).

Regarding Requirement 3, Section 5 of FOIA requires a public body to provide, upon request, a description of the manner in which electronic public records can be obtained in a form comprehensible to persons lacking computer knowledge or access. For example, if a person is unable to reasonably access electronic public records, the public body could make those records available for physical inspection or copying.

Requirements 4-14 are all contained in Section 4 of FOIA. These requirements must be displayed at the public body’s administrative offices and posted on the public body’s website. Requirements 11-14 could be met by posting a public body’s FOIA policy, if the public body has adopted one. Posting a copy of the current adopted budget would satisfy requirement 7. To comply with the remainder of the Section 4 requirements, a public body could create a record that contains the rest of this information, post it at its administrative offices and on its website, and then update the record on a regular (i.e., annual) basis.

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Seventh Circuit Rejects injunction Against Enforcement of Protect Illinois Communities Act

Seventh Circuit Rejects injunction Against Enforcement of Protect Illinois Communities Act

  Tuesday, November 07, 2023    Julie Tappendorf

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Last week, the Seventh Circuit Court of Appeals issued a lengthy opinion in a Second Amendment challenge involving six consolidated cases. Bevis et al., v. State of Illinois et al..

The underlying cases involved challenges to the constitutionality of the State of Illinois "Protect Illinois Communities Act," that restricted the sale, delivery, manufacture, and possession of certain types of semi-automatic weapons and high capacity magazines and also challenges to various municipal ordinances that imposed similar restrictions. The nature of these appeals varied as some of the district courts had issued injunctions against the enforcement of challenged restrictions and other district courts had denied requests to enjoin the laws. 

In its opinion, the Seventh Circuit agreed with the underlying court decisions that refused to enjoin enforcement of the challenged law/ordinances, finding that the State of Illinois and the municipalities have a strong likelihood of success in the underlying lawsuits that challenged their restrictions. In analyzing the Second Amendment challenges, the Seventh Circuit discussed the difference between a handgun (which the Court acknowledged that law-abiding citizens have the right to keep for self defense) and nuclear weapons (which the Court said would not be protected by the Second Amendment right to bear arms) and determined that the type of weapons restricted by the challenged law and ordinances fell closer to the latter category, which the Court determined were more like military weaponry than civilian weaponry. The Court concluded that military weaponry does not fall within the type of "arms" protected under the Second Amendment.

The opinion includes a very detailed analysis of the Second Amendment and the cases that have been decided before this one, both in the majority opinion (which ruled in favor of the State and municipalities) and in the dissenting opinion. While lengthy, it is an interesting read.

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Quorum Forum Podcast Ep. 77: Housing Affordability at the ACSP2023

Quorum Forum Podcast Ep. 77: Housing Affordability at the ACSP2023

  Monday, November 06, 2023    Julie Tappendorf

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Ancel Glink has released a new episode of its Quorum Forum Podcast: Episode 77: Housing Affordability at ACSP2023. In this episode (recorded live at the 2023 Association of Collegiate Schools of Planning Annual Conference), Ancel Glink attorneys David Silverman and Dan Bolin discuss how communities are promoting housing affordability and review legal and practical approaches to addressing housing opportunities in Illinois and across the country. Thanks to APA Illinois for inviting us to the conference. 

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Court Distinguishes between "Private" and "Personal" Information under FOIA

Court Distinguishes between "Private" and "Personal" Information under FOIA

  Friday, November 03, 2023    Julie Tappendorf

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In response to a 2016 FOIA request seeking records relating to the requestor’s criminal case, the Chicago Police Department disclosed certain records subject to certain redactions. A few years later, the requestor submitted another FOIA request seeking records and statements attributed to a specific witness that testified at the requestor’s criminal trial. Attached to the second FOIA request was a notarized statement from the witness consenting to disclosure of her personal information to the requestor. After CPD refused to disclose the private information of the witness, the requestor sued CPD alleging that it violated FOIA by withholding the private information because the witness provided her written consent to disclose her personal information. The circuit court ruled in favor of the City, finding that CPD’s redactions were proper.

After the requestor appealed, the Appellate Court in Brewer v. City of Chicago agreed with the circuit court. The Court noted that “personal information” and “private information” are not interchangeable terms under FOIA, and rejected the requestor’s argument that CPD was required to disclose the phone number of the witness because the witness consented to disclosure of her personal information. Instead, the Court held that a personal phone number is “private information” that is expressly exempt from disclosure under FOIA exemption 7(1)(b). Unlike “personal information” under FOIA exemption 7(1)(c), which can be disclosed if “consented to in writing by the individual subjects of the information,” FOIA authorized CPD to redact the private information exempt under a different FOIA exemption (section 7(1)(b)), even if the person who is the subject of the information that is being requested provides their written consent.

Post Authored by Eugene Bolotnikov, Ancel Glink

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Illinois County Has No Authority to Secede from Illinois According to the Attorney General

Illinois County Has No Authority to Secede from Illinois According to the Attorney General

  Thursday, November 02, 2023    Julie Tappendorf

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The Illinois Attorney General doesn't issue very many general opinions (separate from the PAC opinions) but a recent opinion is worth a read as it involves an unusual issue - a county's secession from one state to an adjoining state.

At the request of the Jerseyville County Board, the County States Attorney requested an opinion from the Illinois Attorney General (AG) as to whether an Illinois county could secede from the State of Illinois and join the State of Missouri. According to the AG's opinion, the issue had arisen in connection with a discussion by the County Board about the placement of a referendum on the ballot to shift the border between Illinois and Missouri in order to relocate the Jerseyville County to the Missouri side.

The AG first reviewed the Illinois Constitution in connection with a county's non-home rule authority. While the AG acknowledged that the Illinois Constitution contains provisions for relocation of county borders, the AG found nothing that would authorize the relocation of county borders across state lines. Similarly, while the Counties Code discusses the transfer of territory between counties, those provisions relate to the transfer of territory within Illinois. The AG also found no authority in the Election Code to allow a county to secede from Illinois by referendum. Finally, the AG noted that secession could implicate various federal laws and the U.S. Constitution. 

In sum, the AG concluded that a non-home rule county does not have the authority to secede from Illinois in order to join Missouri. Ill. Att'y Op. 23-001.

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ICE Did Not Violate Federal FOIA in Redacting Records

ICE Did Not Violate Federal FOIA in Redacting Records

  Wednesday, November 01, 2023    Julie Tappendorf

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A requestor filed several FOIA requests with United States Immigration and Customs Enforcement (ICE) under the federal FOIA statute, seeking records regarding his transfer from ICE custody to Indiana where he faced criminal charges. ICE produced certain records, but redacted (1) information protected by attorney-client, work product, or deliberative process privileges under FOIA exemptions; and (2) identifying information of government employees under other FOIA exemptions because disclosure would put employees at risk of harassment and serve no public benefit. The requestor sued ICE, alleging ICE’s redactions were improper. The district court ruled in favor of ICE, finding it properly redacted information. On appeal, the Seventh Circuit Court of Appeals also ruled in favor of ICE in Vidal-Martinez v. United States Department Of Homeland Security

First, the Seventh Circuit rejected the requester's argument that ICE could not rely on the attorney-client privilege to redact or withhold records because of the crime-fraud exception to the attorney-client privilege, finding no evidence to support the requestor’s claims that ICE engaged in any criminal conduct or sought to mislead the court.  

Second, the Seventh Circuit rejected the requestor’s petition for attorney’s fees, finding that ICE consistently maintained its intent to respond the FOIA requests both before and after the requestor sued, and any administrative delay in ICE responding to the FOIA requests did not trigger any award of attorney's fees under the federal FOIA statute.

Post Authored by Eugene Bolotnikov, Ancel Glink

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