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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, January 31, 2024

Court Allows Nuisance Claims Regarding Industrial Development to Move Forward

An Illinois Appellate Court allowed a group to proceed with some of its claims in its lawsuit to stop a proposed development of an industrial park. Stop Northpoint, LLC v. City of Joliet

In October 2020, a group sued a city and developer to prevent the annexation of over 1000 acres of unincorporated property for the purpose of developing an industrial business park for warehouses and truck terminals. The city and developer agreed to an annexation and development agreement and development approvals after conducting multiple public hearings. After amending the lawsuit several times, the trial court ultimately considered five claims:

1) whether the development would cause a private nuisance to individuals;

2) whether the development would cause a public nuisance to the community at large;

3) whether the annexation agreement was void for being too vague;

4) whether a November 2021 plan commission hearing about the development was invalid due to inadequate notice; and

5) whether November and December 2021 plan commission’s in-person hearings violated the Open Meetings Act for not following the Governor’s mask mandate.

The trial court dismissed all five of the group’s issues, and the group appealed.

The Appellate Court upheld the trial court’s dismissal of the third, fourth, and fifth claims. On the vagueness claim, the court held that imperfect drafting did not make the annexation agreement illegal or unauthorized. On the notice claim, the court held that the group did not allege they suffered any harm from inadequate notice, so there was no prejudice to justify an improper notice claim. On the mask mandate claim, the court stated the statewide mask mandate was targeted towards individuals, not governments, and there was no legal basis to invalidate an ordinance or annexation agreement passed at a public hearing where face masks were not worn by attendees. 

However, the Appellate Court reversed the trial court’s dismissal of the first and second claims. On the private nuisance claim, the court held that plaintiffs' allegations about the potential impact of air and noise pollution, vibrations, and safety concerns were immediate and specific enough for group members who lived closest to the development to meet the pleading requirements for that claim. On the public nuisance claim, the court found that the plaintiffs sufficiently stated a claim for a common-law public nuisance in their allegations relating to a potential increase in truck traffic and the impacts on the community. 

In sum, the Appellate Court held that the trial court should have let plaintiffs' private and public nuisance claims move forward to the next stage of litigation and remanded the case back to the trial court.

Post Authored by Daniel Lev, Ancel Glink


Tuesday, January 30, 2024

Trial Court Erred in Applying Balancing Test in Ordinance Enforcement Action

The Illinois Supreme Court recently held that a trial court had no authority to balance the interests of the parties in determining whether to enforce compliance with an ordinance. City of Rock Falls v. Aims Industrial Services, LLC.

The City of Rock Falls had an ordinance in place that requires any property within city limits that is being serviced by a private sewage disposal system to be converted and redirected to the public sewage disposal system upon the sale of that property. Aims Industrial Services, LLC (Aims) purchased a commercial property located within Rock Falls that was being serviced by a private sewage disposal system. Despite being notified by the City that it needed to comply with the ordinance, Aims did not take action to connect its property to the public sewage disposal system. The City filed a lawsuit to enforce compliance with the ordinance.

The trial court found in favor of Aims and held there was no reason, outside of compliance with the ordinance, to force Aims to connect to the public sewage system. In ruling in favor of Aims, the court balanced the competing interests of the parties, and considered Aim's costs of compliance of approximately $150,000, and the fact that the private sewer system was not in disrepair nor a threat to public health. 

The City appealed, arguing that the trial court should not have considered the interests of the parties and instead should have enforced the requirements in the ordinance. The Appellate Court agreed and reversed the ruling in favor of Aims. The Appellate Court stated that “where a governmental agency is expressly authorized by statute to seek injunctive relief, the traditional equitable elements necessary to obtain an injunction need not be satisfied.” Further, the Appellate Court explained that "because there is a presumption of harm to the public when an ordinance is violated, a governmental agency seeking an injunction need only show that the ordinance was violated and that the ordinance specifically provides for injunctive relief." The Appellate Court concluded that because the City only had to prove that Aims violated the Code and that the Code specifically authorized injunctive relief as a remedy, "the construction work and cost required to connect to the City’s sewage system, as well as the exemption granted to the other business, were irrelevant."

Aims appealed to the Illinois Supreme Court, which upheld the Appellate Court's ruling in favor of the City. The Illinois Supreme Court made it clear that a "court is not free to disregard or 'rebalance' the policy determinations made by a legislative body" and when a trial court is confronted “with a continuing violation of statutory law, it has no discretion or authority to balance the equities so as to permit that violation to continue.” The trial court should only have considered whether the City met its burden in establishing a violation of the ordinance had occurred.

Post Authored by Alexis Carter & Julie Tappendorf, Ancel Glink

Monday, January 29, 2024

PAC Orders Finds Public Body in Violation of FOIA for Withholding Settlement Agreement

After a public body denied a FOIA request for a settlement agreement, the requestor submitted a request for review to the PAC. In PAC Op. 24-001, the PAC found the public body in violation of FOIA for withholding the agreement because (1) settlement agreements are public records expressly subject to disclosure pursuant to section 2.20 of FOIA, and (2) the public body did not claim that any portion of the agreement was exempt.

The public body argued that because the agreement included a mutual non-disparagement clause in the agreement, release of the agreement could expose it to liability because disclosure might cause harm to the other contracting party, such as disparagement. The PAC rejected that argument, and also noted that even if the agreement contained a confidentiality provision prohibiting disclosure of the agreement, that provision would be unenforceable because section 2.20 of FOIA provides that settlement agreements are public records disclosable to the public, subject to redaction of exempt information.

Post Authored by Eugene Bolotnikov, Ancel Glink

Wednesday, January 24, 2024

Illinois Supreme Court Rejects Challenge to Pension Consolidation Act

Pursuant to P.A. 101-610, the Illinois General Assembly consolidated local police and firefighter pension fund assets into two statewide pension investment funds, one for police and the other for firefighters. In February 2021, 36 individual active and retired beneficiary members from a few suburban and downstate police and firefighter pension funds filed a lawsuit against the Governor and other state officials. The lawsuit claimed the Act diminishes and impairs their pension benefits because (1) prior to the Act, the local funds could “exclusively manage and control their investment expenditures and income”; (2) their “voting power and thereby an effective say in the selection of investment managers, investments, risks, rates of return, costs and expenses” was diluted by the participation of members of other local funds; and (3) the Act constituted an unconstitutional "taking" of their property.

The trial court ruled in favor of the defendants, rejecting plaintiffs' arguments. The case made its way to the Illinois Supreme Court which also ruled in favor of the defendants. Specifically, the Illinois Supreme Court found that plaintiffs had no constitutional right to how the local pension funds are invested (whether at the state or local level) or in the selection of investment managers. The Court also rejected the plaintiffs' constitutional "takings" claim, holding that while participants have a right to receive their promised benefits, they do not have a private property right in the source of funding for those payments. Arlington Heights Police Pension Fund v. Pritzker, et al.

Tuesday, January 23, 2024

Bill Would Expand Remote Meetings Under the OMA

Recently, we have received a number of questions from public bodies asking if they can conduct a meeting entirely remotely in order to protect members of the public body and members of the public from unsafe weather conditions (below zero temperatures and windchills, snow, ice, etc.) or other circumstances that affect the health and safety of persons attending the meeting (building temperature, broken pipes, etc.). Currently, the OMA does not currently provide a fully remote option for meetings except when the Governor or IDPH has issued a disaster declaration related to public health. The OMA does provide options for certain members to attend remotely for specific statutory reasons but a physical quorum of the public body must still be present at the meeting.

Various bills have been introduced over the past couple of years to expand the remote meeting provision in OMA beyond a public health disaster although none of those bills have been enacted. One of those bills is House Bill 1408, which would allow a public body to conduct a remote meeting if the chief elected or appointed official of the public body determines that an in-person meeting would pose a high risk to the health or safety of members of the public body or public and that a remote meeting is in the best interests of the public body. The bill would make a few other changes to the OMA regarding the opportunity for public comment and certain notice requirements for these expanded remote meetings. 

The bill is still in committee so it is not clear whether it will have any movement this legislative session but we will monitor it and similar bills.

Monday, January 22, 2024

Court Considers Sales Tax Misallocation Case Between Two Municipalities

An Illinois Appellate Court permitted a Village to sue and seek reimbursement for over $1M in sales tax revenue that had been erroneously allocated to a different municipality, and held that the Village was not limited to a reimbursement of only the last six months of misallocated revenue. Village of Arlington Heights v. City of Rolling Meadows.

In 2011, a restaurant opened in the Village. The Illinois Department of Revenue (IDOR) mistakenly located the restaurant in a neighboring City. As a result, the restaurant’s sales tax revenue that should have gone to the Village instead was allocated to the City. In March 2020, the Village discovered the error and alerted IDOR. Although the City had received over $1.1M dollars from the restaurant’s sales tax from 2011 to 2020, the Village was only reimbursed for $100K of that misallocated revenue based on the IDOR's claim that state law limited reimbursement of funds to only the prior six months since the error was discovered. When the City refused to return the remaining $1M in unfairly received sales tax revenue to the Village, the Village sued the City. The trial court dismissed the Village's lawsuit on the ground that the court did not have jurisdiction to hear the tax case, and the Village appealed.

The Appellate Court reversed the trial court on three bases. First, the Appellate Court held that the trial court did, in fact, have jurisdiction to calculate the sales tax amount that should have been allocated to the Village. Second, the Appellate Court held that the City was obligated to monitor its tax rolls to discover the mistake within the initial six months of IDOR’s error, so allowing the City to keep the $1M in misallocated tax revenue would be an unfair windfall to the City. Third, the Court determined that the Village was not precluded from suing the City because the issue was not only about the IDOR's error, but also the return of the misallocated funds to the Village. 

Post Authored by Dan Lev, Ancel Glink

Thursday, January 18, 2024

Newly Hired Independent Contractor Reporting Requirements under Unemployment Insurance Act

The Unemployment Insurance Act (Act) requires all Illinois employers, including units of local government, to file a report with the Illinois Department of Employment Security (IDES) with certain information about “newly hired employees.” On July 28, 2023, Governor Pritzker signed Public Act 103-0343 into law (effective January 1, 2024) which expanded the Act’s definition of “newly hired employee” to also include an individual under an independent contractor arrangement who (i) has not previously been employed by the employer or (ii) who was previously employed by the employer but has separated from that prior employment for at least 60 consecutive days.

As of January 1st, all Illinois employers must report both newly hired employees and independent contractors that perform work for the employer under an IRS 1099 Form to IDES not later than 20 days after the date the newly hired employee or independent contractor operating under a 1099 form is employed or hired. Note that the new reporting obligation does not seem to extend to employees of vendors an employer contracts with for work performed by the vendor's own employees. Instead, the intent of the law is to capture those independent contractors who are not subject to reporting by their employers because they are self-employed and working under a 1099 form.

Each report should be made on an IRS Form W-4 or, at the option of the employer, an equivalent form, and transmitted by first class mail or electronically on the IDES website at this IDES link.

If an employer knowingly fails to report “newly hired employees,” including self-employed independent contractors, the Act imposes a civil penalty of $15 for each person that the employer failed to report. Also, the Act makes it a Class B misdemeanor and imposes a fine of $500 per employee for any person that knowingly conspires with a newly hired employee to cause an employer to fail to report or file a false or incomplete report regarding required newly hired employee information under the Act.    

Post Authored by Eugene Bolotnikov, Ancel Glink

Wednesday, January 17, 2024

FOIA and OMA Bills Introduced in General Assembly

Recently, a few new bills were introduced in the Illinois General Assembly, and are awaiting action by the Illinois House or Senate.

House Bill 4401 was introduced on January 8th. If passed, the bill would amend the Freedom of Information Act (FOIA) and the Local Records Act (LRA) to add a definition for “junk mail” to each Act and provide that the term “public records” for purposes of complying with FOIA or the LRA does not include junk mail.

House Bill 4402 was introduced on January 8th. If passed, the bill would amend the Open Meeting Act (OMA) to replace one of the reasons authorizing a member of a public body to attend an in-person meeting remotely (“a family or other emergency”) with “exigent circumstances concerning a family member.” The bill would also add definitions for “bona fide emergency” and “exigent circumstances.” 

Senate Bill 2665 was introduced on January 10th. If passed, the bill would amend the OMA to add a new reason authorizing a member of a public body to attend an in-person meeting remotely for "performance of active duty as a service member." The bill would also add a definition for "active military duty" and "service member."

House Bill 4325 was introduced on January 3rd. If passed, the bill would amend FOIA in a number of ways, including the following:

  • The bill would update the definition of “commercial purpose” to also include the use of information from a public record “for solicitation of individuals for purposes of joining an organization.”
  • The bill would also require a requester to pay in advance for commercial request records and voluminous requests.
  • The bill would change the way a public body responds to recurrent requesters and allow the public body to notify the recurrent requester that it will not be responding to the request that triggered the requester being a recurrent requester or any other request filed by that same requester for a period of 90 days.
  • The bill would also allow public bodies to charge up to $10 per hour (over the first 2 hours rather than 8 hours) for personnel time in searching and reviewing records, and remove the current limitation that this personnel fee only applies to commercial requests.
  • The bill would expand the FOIA exemptions to include communications that do not pertain to the transaction of public business that are sent to or received by an individual on his or her personal device.
Post Authored by Madeline Tankersley & Julie Tappendorf

Tuesday, January 16, 2024

Restriction on E-Cigarette Use Now in Effect

On July 28, 2023, Governor Pritzker signed an amendment to the Smoke Free Illinois Act (Act) into law that went into effect on January 1, 2024. P.A. 103-0272

The amendment added the term “electronic cigarette” to the Act and explicitly clarified the term “smoke” or “smoking” includes the use of electronic cigarettes.

The Act states “no person shall smoke in a public place or in any place of employment or within 15 feet of any entrance to a public place or place of employment. No person may smoke in any vehicle owned, leased, or operated by the State or a political subdivision of the State. An owner shall reasonably assure that smoking is prohibited in indoor public places and workplaces unless specifically exempted…” (emphasis added).

“Public places” are portions of buildings that are open to the public, regardless of whether it is owned in whole or in part by private entities or whether a fee is charged for admission. This includes, but is not limited to, hospitals, restaurants, retail stores, offices, elevators, theaters, educational facilities, libraries, polling places, public restrooms, bars, bowling alleys, skating rinks, and a majority of hotel rooms.

The Illinois Department of Public Health, local public health departments, and law enforcement agencies are primarily responsible for enforcing the Act. Any person may file a complaint under the Act with these health departments or law enforcement to issue citations. Local governments may expect an increase in the number of complaints filed in response to the expansion of the Act; however, educating restaurant, bar, and other business owners about this new law may reduce instances of noncompliance. 

Post Authored by Daniel Lev, Ancel Glink

Tuesday, January 9, 2024

Court Considers OMA and FOIA Challenge Regarding Closed Session

On December 8, 2020, a village conducted a public hearing to consider its proposed 2021 budget. The board voted to close a portion of the meeting pursuant to the collective negotiating exemption and the pending or imminent litigation exemption. A union submitted a FOIA request to the village seeking the complete video and audio recording of the village’s closed session and all documents discussed and reviewed at the closed session. The village denied the request citing several FOIA exemptions, including FOIA’s attorney-client privileged exemption. 

The union sued the village alleging that (1) it held a closed meeting in violation of the OMA and that (2) village denied their request for records in violation of FOIA. The circuit court ruled in favor of the union, finding that the village improperly entered closed session at its December 2020 meeting and ordered the village to disclose its responsive records, denying the village’s request to redact privileged attorney-client communications from the records.

After the village appealed, the Appellate Court upheld the circuit court's ruling on the OMA challenge but reversed the circuit court's ruling on the FOIA challenge. Int’l Assoc. of Fire Fighters Local 4646 v. Vill. of Oak Brook.

Because the village was not engaged in active or imminent negotiations with a collective bargaining unit when it conducted its closed meeting to discuss two alternative budget proposals, the Apellate Court held that the village did not satisfy the requirements of the collective bargaining exemption, which the Court said did not support holding a closed session to discuss matters pertaining to anticipated or hypothetical negotiations. The Court also held that the village did not demonstrate that choosing one budget option over another would have likely resulted in litigation at the time the village entered closed session to satisfy the requirements of the litigation exemption. 

However, the Appellate Court found that the circuit court erred when it ordered the village to disclose its closed session recording and transcript under FOIA without regard to whether those documents contained attorney-client privileged information. Although the OMA does not contain an attorney-client privileged exemption, the Appellate Court held that the circuit court had the discretion to not order the village to disclose its privileged communications with its attorney, and that the circuit court erred in ordering the village to disclose all closed session communications in response to the union's FOIA request without considering the applicability of the attorney-client privilege. 

Post Authored by Eugene Bolotnikov, Ancel Glink

Monday, January 8, 2024

Court Disqualifies Township Trustee From Office Over Felony Conviction

An Illinois Appellate Court recently held that a township trustee was disqualified from holding township office because of a prior felony conviction. People v. Zimel

Under the Township Code, any person convicted of “any infamous crime, bribery, perjury, or other felony” is disqualified from holding a township office. In April 2021, a candidate was elected as a township trustee. In June 2021, the State asked the newly elected trustee to establish that he was not convicted of a felony or to resign from office, but he did neither. The State then filed a lawsuit to disqualify him from office, and the trial court ruled in the State’s favor. The trustee appealed.

The Appellate Court upheld the trial court’s decision on several grounds. First, the Appellate Court rejected the trustee's argument that the State delayed filing their lawsuit or that there was a statute of limitations that barred the lawsuit. The Court also held that the State was not required to challenge the township official’s candidacy prior to, or at the time of, the election. Finally, the Court determined that the trustee's conviction for "intimidation" qualified as an “other felony” under the Township Code which disqualifies a person from township office.   

Post Authored by Daniel Lev, Ancel Glink

Friday, January 5, 2024

Court Dismisses Cyclist’s Lawsuit Against City

The Illinois Supreme Court recently ruled in favor of a city in a lawsuit brought by a cyclist against the city, finding the city immune from liability under the Tort Immunity Act. Alave v. The City of Chicago.  

A cyclist was injured after striking a pothole while riding his bike along a city roadway. The road had no designated bike lane, but a bike rental station was located close to the site of the cyclist’s accident. The cyclist sued the city arguing that the city was liable for his injuries because cyclists were permitted and intended users of city roads. The trial court ruled in favor of the city finding that cyclists were not permitted and intended users of the road where the accident occurred. On appeal, the appellate court reversed the trial court and held that cyclists were permitted and intended users of the road because of the city’s placement of a bike rental station along the roadway.   

On appeal to the Illinois Supreme Court, the cyclist argued that the city’s placement of a bike rental station along the roadway and city ordinances prohibiting cyclists from riding bikes on city sidewalks made cyclists permitted and intended users of the road where the accident occurred. The city argued that cyclists were not permitted and intended users of the road where the accident occurred because the road was not a designated bike lane. 

After reviewing the city ordinances governing bicycle use along sidewalks and roads, the placement of a bike rental station along the road where the accident occurred, and the lack of signs designating the road as a bike lane, the Illinois Supreme Court held that cyclists were not intended users of the road. For a municipality to be liable for cyclists’ injuries, there must be other objective manifestations of the city’s intent that cyclists are intended users of a road than the placement of a bike rental station. Because cyclists were not intended users of the road at issue in the case, the Court held that the city was not liable for the cyclist’s injuries. 

Post Authored by Tyler Smith, Ancel Glink

Thursday, January 4, 2024

Court Dismisses Class Action Challenging Red-Light Camera Tickets

An Illinois Appellate Court recently dismissed a class action lawsuit challenging automated red-light tickets given at an intersection in a municipality. Tock v. Village of Stone Park

Under the Illinois Vehicle Code, municipalities can write automated tickets for drivers who stop after road markings and enter an intersection through the use of red-light traffic cameras. The law provides recipients of these automated tickets with an opportunity to challenge xthe tickets. In this case, three drivers received automated tickets from the village’s red-light camera at the same intersection for stopping after road markings. One driver appealed the ticket at an in-person hearing and got it dismissed. Another challenged the ticket at an in-person hearing and lost. The third driver had an opportunity to appeal their ticket at the circuit court but did not. All three drivers filed a class action lawsuit on behalf of themselves and hundreds of other drivers who received automated tickets at that intersection arguing the camera angle was improper and they were systemically and unfairly ticketed as a result. The circuit court dismissed the lawsuit, and the drivers appealed.

The Appellate Court also upheld the dismissal of the lawsuit for several reasons. First, because the first driver had the ticket dismissed, there was no injury to sue over. Second, relying on Pinkston v. Chicago (that we recently reported on) the court reiterated parties must exhaust their administrative remedies to file lawsuits over administrative actions such as parking and red-light tickets. Since the second driver had a appeal denied did not excuse a failure to appeal their ticket at the circuit court, and the third driver did not appeal the ticket at all. 

Post Authored by Daniel Lev, Ancel Glink

Wednesday, January 3, 2024

Appellate Court Rejects Blanket FOIA Exemption Over Investigatory File

An inmate submitted a FOIA request to the Cook County State’s Attorney’s Office (SAO) seeking records related to a criminal case involving the inmate’s co-defendant in a criminal matter. The SAO denied the request citing FOIA exemption 7(1)(d)(i), arguing that because the requestor had an active post-conviction petition pending, the requested records were exempt from disclosure because disclosing the records would interfere with those proceedings. The requestor sued claiming the SAO improperly denied his FOIA request by asserting a blanket exemption over the records, and the circuit court ruled in favor of the SAO.

On appeal, the Appellate Court reversed the circuit court’s ruling and concluded that FOIA exemption 7(1)(d)(i) does not authorize a public body to claim a blanket exemption over an entire investigatory file, especially where, as here, potentially all of the information had already been publicly disclosed. Makiel v. Foxx. Instead, the SAO was required to, but failed to, provide sufficiently detailed information or documents demonstrating that disclosing any of the requested records would have interfered with a pending law enforcement proceeding.

Post Authored by Eugene Bolotnikov, Ancel Glink

Tuesday, January 2, 2024

PAC Finds Public Body in Violation of OMA for Improper Closed Session

Just when we thought we had reported on all of the 2023 PAC binding opinions, the PAC issued one more opinion in late December.

After a parent filed an objection to a book’s inclusion in a school district’s curriculum, the school superintendent determined that using the book did not violate board policy. The parent subsequently appealed the superintendent’s decision to the full school board, which discussed the matter in closed session at its May 22, 2023 meeting, and then voted in open session to add a second book as an alternative option to the controversial book in question. At a later meeting, the board decided to pull the book from its curriculum altogether after returning from closed session at its August 7, 2023 meeting. In response to a request for review challenging the board’s basis for entering closed session to discuss the book at its August 7, 2023 meeting, the PAC concluded that the board violated the OMA by holding an improper closed session discussion regarding removing the book from its curriculum. PAC Op. 23-016.

Specifically, the PAC rejected the board’s arguments that it properly entered closed session at its August 7, 2023 meeting to discuss issues involving the book pursuant to OMA exceptions 2(c)(1), 2(c)(4), 2(c)(10), and 2(c)(11).

The PAC rejected the board’s argument that it properly cited OMA exception 2(c)(1) to discuss a grievance against specific employees in connection with teaching the book, finding that the board’s argument did not align with the substance of its closed session discussion, which centered on the merits of having the book as part of its curriculum. Although the board briefly alluded to the parent who filed the grievance, the parent’s child, and certain school employees, the board never deliberated about performance issues or relative merits of specific employees. Nor did the board demonstrate that its discussion about the appropriateness of the book was inextricably intertwined with its overarching discussion about employment-related topics about specific employees.

The PAC also determined that the board’s discussion during its closed session meeting fell outside the scope of OMA exception 2(c)(4), because the board’s discussion focused on the appropriateness of the book as part of its curriculum and did not constitute evidence or testimony in an open hearing or a closed hearing specifically authorized by law. Indeed, the PAC noted that the board was not specifically authorized by law to act as a quasi-adjudicatory body with respect to deciding whether to remove a book from its curriculum.

The PAC also determined that the board’s discussion during closed session fell outside the scope of OMA exception 2(c)(10), which narrowly pertains to individual student matters. While the board momentarily alluded to an individual student, its discussion generally focused on the appropriateness of the book and broader curriculum issues impacting many students.

Finally, the board acknowledged it did not actually utilize the OMA’s "pending or imminent" litigation exception in section 2(c)(11) during its closed session meeting.

Post Authored by Eugene Bolotnikov, Ancel Glink