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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

Friday, May 30, 2025

In the Zone: Court Upholds Zoning Board's Denial of Variance for Accessory Structure

  Friday, May 30, 2025    

In 2022, building plans were submitted to the County for approval of a proposed reconstruction of a boathouse. According to the relevant County ordinances, in order for a structure to qualify as a boathouse, it must be used to store boats, may not contain other rooms, must be built over an earthen floor or water slip, and may not be used for human habitation. If a structure does not qualify as a boathouse under the regulations, it must be built at least 30 feet from the shoreline, unless it is granted a variance.

The building plans that were submitted to the County depicted a structure with two stories, an enclosed wooden floor that was heated, windows, recessed lighting, cabinetry, sky lights, ceiling fans, and a door – all of which indicated atypical features and activities for boathouses. The building plans also depicted people congregating inside the structure, indicating that it was intended to be used for human habitation. For these reasons, the County Zoning Board decided that the structure was not a boathouse under the County’s regulations and was, therefore, subject to the 30-foot setback requirement.

The builders also sought a variance for their structure to avoid the 30-foot setback requirement. The builders argued that because the area 30 feet from the shoreline was particularly steep, exceptional circumstances and practical difficulties existed in adhering to the setback requirement to justify a variance. The builders also argued that their plan was harmonious with the purpose of the regulations because the structure would not be used for habitation and because the large floor plan was justified by their extensive storage needs.

The Zoning Board denied the variance, finding that there was nothing so unique about the builders’ property that would not allow them to either build the structure 30 feet from the shoreline or modify their plans so that the structure would qualify as a boathouse. On appeal, the Appellate Court upheld the Zoning Board's decision, finding, among other things, that a builder's dissatisfaction with the County's zoning regulations and personal preferences do not “manufacture a practical hardship justifying a variance.” Atwater v. Lake Cnty. Zoning Bd. of Appeals, 2025 IL App (2d) 240276-U.

Post Authored by Rachel Defries & Julie Tappendorf, Ancel Glink


  

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Thursday, May 29, 2025

Seventh Circuit Rules in Favor of Federal Agency in Federal FOIA Dispute

  Thursday, May 29, 2025    

After a federal law enforcement agency did not respond to a FOIA request seeking records relating to a named person and his application for legal permanent residency, the requester filed a lawsuit claiming the agency violated the federal FOIA statute. During the litigation, the agency disclosed several responsive records, but withheld others citing a federal FOIA exemption that protects certain law enforcement records related to ongoing enforcement proceedings. The district court ruled that (1) the requester was not entitled to a declaratory judgement that ICE violated FOIA solely because ICE did not timely respond to his FOIA request, (2) that ICE properly withheld certain records under the federal FOIA statute, but needed to disclose certain personal information about the requester within the records, and (3) that the FOIA statute provides an adequate remedy for delayed disclosures, which precluded the requester’s claim under the Administrative Procedure Act.

After the requester appealed, the Seventh Circuit Court of Appeals upheld the district court’s rulings. Libarov v. United States Immigr. & Customs Enf't. First, the Seventh Circuit rejected the requester’s argument that he was entitled to relief because the request became moot once the agency disclosed its responsive records, and there was no “case or controversy” regarding the adequacy of the records disclosed, so the requestor could not seek a declaratory judgment resulting solely from a delayed response. 

Second, the Seventh Circuit agreed that the agency properly withheld some records under the law enforcement exemption because the district court had reviewed the record in camera, and had an adequate factual basis to determine that (1) the records were compiled for law enforcement purposes and (2) disclosing parts of the records could reasonably be expected to interfere with the agency’s enforcement proceedings.

Finally, the Seventh Circuit found that the requestor could not seek relief under the Administrative Procedure Act for a violation of FOIA, because the FOIA statute provided an adequate remedy to a requester seeking the disclosure of documents, namely a court order requiring compliance with FOIA.

Although this case interprets the federal FOIA statute, the Illinois FOIA statute is patterned after the federal statute, so decisions interpreting federal FOIA are sometimes relevant to construing similar provisions in the Illinois law.

Post Authored by Eugene Bolotnikov, Ancel Glink

  

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Wednesday, May 28, 2025

Fifth Circuit Dismisses Patron Free Speech Challenge to Library Book Removal Decision

  Wednesday, May 28, 2025    

A federal court of appeals issued a ruling last week dismissing a First Amendment lawsuit brought by library patrons to challenge the removal of certain books from a public library in Texas on free speech grounds. Little, et al. v. Llano County, et al.

Library patrons sued the librarian and board members of a county public library after the library officials removed 17 books because of their treatment of racial and sexual themes. The patrons claimed that the removal of these books violated their right to receive information under the free speech clause of the First Amendment. The federal district court agreed and issued a preliminary injunction against the library. 

Last year, a panel of the Fifth Circuit upheld the federal court's injunction. However, the Fifth Circuit Court of Appeals granted an "en banc" rehearing of the appeal, and last week issued a lengthy ruling holding that the "right of information" does not apply to a public library's decision to remove books. Instead, the court of appeals determined that the library's collection decisions are government speech and, therefore, not subject to free speech protections under the First Amendment. 

The court of appeals also rejected the patrons claims that the library's actions were in the nature of book banning, holding that patrons could still purchase the removed books from a bookstore or online. 

The court of appeals also determined that the U.S. Supreme Court's decision in Island Trees Union Free Sch. Dist. v. Pico (a school book removal case) carries "no precedential weight" in the Fifth Circuit. The court of appeals also overruled a 30 year old decision in their own circuit court (Campbell v. St. Tammany Parish School) that found unconstitutional a school's book removal decision, finding that this case created confusion because libraries are not able to determine whether a book removal violates the First Amendment.

There were a number of justices who joined in a dissenting opinion that disagreed with the majority's ruling. The dissenting justices would apply the U.S. Supreme Court's decision in Pico and find that the book removal decision of the county library was based on discriminatory intent rather than simply "weeding" books from the library's collections. The dissenting justices would also have left in place the 30 year old Fifth Circuit decision in Campbell that the majority overruled.

This decision is limited to the Fifth Circuit and the three states within its jurisdiction (Texas, Mississippi, and Louisiana), and does not apply in Illinois. However, because the decision appears to limit the Pico decision on book removals that was previous issued by the U.S. Supreme Court, this case might make its way to the U.S. Supreme Court, which could have an impact on Illinois libraries.


  

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Friday, May 23, 2025

Court Upholds Denial of Police Officer’s Line-of-Duty Disability Benefits

  Friday, May 23, 2025    

A police officer filed an application for line-of-duty disability benefits after being injured during mandatory “wellness and resiliency” training, which involved classroom instruction and stretching, yoga, and other physical movements. During the stretches, the officer experienced back pain and was later diagnosed with various spinal conditions, undergoing two unsuccessful surgeries. Despite receiving treatment, the officer was unable to return to work with the police department.

The Retirement Board of the Policemen’s Annuity and Benefit Fund of the City of Chicago (Pension Board) found that the officer was entitled to ordinary disability benefits, but denied her duty disability benefits because her injury did not result from an “act of police duty inherently involving special risk,” as required by the Illinois Pension Code. Ordinary disability benefits are 50% of the officer’s salary, as opposed to 75% for duty disability benefits.

On appeal, both the circuit court and the appellate court affirmed the Pension Board’s denial of the officer’s duty benefits. To determine if an officer is injured “in the performance of an act of duty” to be eligible for duty disability benefits, courts look at the capacity in which the officer was acting when injured, rather than the precise physical act that caused the injury. Here, the courts found that the officer was stretching and performing breathing exercises while dressed in plain clothes, for the purpose of relaxing and living a healthier lifestyle. As a result, the courts found that the officer was injured in the capacity of an individual seeking to calm herself and live a healthier lifestyle, as any regular civilian might do – but not in a police officer capacity. Additionally, although the training was mandatory, an activity being mandatory does not automatically make it an “act of duty” when the activity has a clear counterpart in civilian life. Gonzales v. Retirement Bd. of the Policemen’s Annuity and Benefit Fund of the City of Chicago, 2025 IL App (1st) 242166-U.

Post Authored by Rachel Defries & Julie Tappendorf, Ancel Glink

  

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Thursday, May 22, 2025

PAC Finds Police Department in Violation of FOIA for Withholding Arrest Video

  Thursday, May 22, 2025    

A municipal police department denied a FOIA request seeking a video recording of a former deputy chief's DUI arrest citing Section 7(1)(n) of FOIA, which exempts records relating to a public body's adjudication of employee grievances or disciplinary cases. After the requester submitted a request for review with the Illinois Attorney General's Public Access Counselor (PAC) challenging the denial, the PAC issued its fourth binding opinion of 2025 concluding that the Village improperly withheld the video recording. PAC Op. 25-004.

The Village argued that because the video recording was used as evidence in an adjudicatory proceeding to determine the appropriate disciplinary measures to impose against the former deputy chief, that the recording was therefore “related to” an adjudicatory proceeding of an employee disciplinary matter. However, the PAC disagreed that the video was “related to” the adjudicatory proceeding, because it was created before any disciplinary proceeding took place and existed independently on the subsequent adjudication. Instead, the PAC determined that records can only "relate to" an adjudication within the meaning of the FOIA exemption contained in Section 7(l)(n) if they are created in the process of conducting the adjudication itself.

Post Authored by Eugene Bolotnikov, Ancel Glink

  

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Wednesday, May 14, 2025

Court Upholds Dismissal of FOIA Lawsuit Against Sheriff's Office

  Wednesday, May 14, 2025    

 An Illinois Appellate Court upheld the dismissal of a lawsuit challenging a sheriff's department's response to a FOIA request in Tynis v. McHenry County Sheriff's Department. 

An inmate in county jail filed a FOIA request with a county sheriff's department seeking certain electronic communications and other records relating to a specific police report. The sheriff responded that (1) it had no text messages responsive to the request, (2) it released a copy of certain redacted emails; and (3) it withheld certain records because they contained confidential witness and juvenile information, LEADS records protected by state law, among other exempt information under FOIA and other laws. 

The inmate filed a lawsuit against the sheriff's office asking the court to order the release of the requested records and to award him fees and costs. The sheriff's office filed a motion to dismiss the lawsuit. While that motion was pending, the court reviewed the unredacted records "in camera" (a confidential review outside of public view) and found the sheriff's office in compliance with FOIA when it redacted and/or withheld information that was exempt under FOIA and other applicable laws. As a result, the court dismissed the FOIA complaint, and the inmate appealed.

On appeal, the Appellate Court determined that the sheriff's redaction of email addresses, the address and phone number of the victim, and certain investigatory information from the responsive records was proper, as this information was exempt from FOIA. The Appellate Court also upheld the sheriff's decision to withhold LEADS information as that information is prohibited from release under state law. Finally, the Court determined that an award of fees and costs was not appropriate as the inmate did not prevail in the proceeding since the trial court's dismissal of the lawsuit was proper. 

  

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Monday, May 5, 2025

Quorum Forum Podcast Ep 93: APA-CMS Bar Exam

  Monday, May 05, 2025    

 Ancel Glink's Quorum Forum Podcast just released Episode 93: 2025 APA-CMS Bar Exam.

The American Planning Association Chicago Metro Section recently teamed up with Ancel Glink’s Quorum Forum podcast for the 10th annual “Bar Exam” planning law session. This event is a realistic simulated law school experience testing planners and land use professionals on important planning law cases on group housing, short-term rentals, and more! The 2025 session featured in this episode was recorded live at One Lake Brewing in Oak Park. As is tradition, everyone literally "passed the bar" after attending this session. This episode also marks seven years of Ancel Glink's Quorum Forum podcast! 

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Thursday, May 1, 2025

PAC Finds Public Body in Violation of FOIA For Not Responding

  Thursday, May 01, 2025    

A requester filed a FOIA request with a transit authority asking for certain records relating to the authority's use of security K-9 animals. The requester filed a request for review with the PAC claiming the transit authority violated FOIA by failing to respond to the FOIA request. In the PAC’s third binding opinion of 2025, the PAC concluded that the transit authority violated FOIA by not timely complying with or denying the FOIA request. PAC Op. 25-003. 

While this opinion does not provide any new guidance to public bodies in complying with FOIA that hasn't already been said through other binding opinions, it is a reminder to public bodies that they are obligated to respond to FOIA requests in a timely manner or utilize the various extension or other provisions of FOIA to provide additional time for response. 

Post Authored by Eugene Bolotnikov & Julie Tappendorf, Ancel Glink

  

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