Upcoming Seminar for Local Government Officials

Upcoming Seminar for Local Government Officials

  Tuesday, April 23, 2013    Julie Tappendorf

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Calling all local government officials and employees in and around Lake County - don't miss this upcoming seminar presented by the Lake County Bar Association's Local Government Committee.  The seminar, entitled "Conflicts? OMA? OMG! Statutes Local Governmental Officials Need to Know," will be held on May 1, 2013, from 1:00 to 4:00 p.m., at College of Lake County, Building C. 

 

Ancel Glink Attorneys Adam Simon will speak on Public Finance and John Christensen on Public Construction Projects. There will also be sessions on OMA, FOIA, and conflicts of interest.  The seminar is appropriate for newly elected and seasoned local government officials and employees.

 

You can register using the attached form.  See you there!

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Medical Marijuana Bill Passes Illinois House

Medical Marijuana Bill Passes Illinois House

  Monday, April 22, 2013    Julie Tappendorf

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On April 17, 2013, the Illinois House passed HB 1, legalizing the cultivation and use of medical marijuana.  The bill now goes to the Senate for consideration.  If approved, Illinois will join 18 other states and Washington, D.C. in decriminalizing medical marijuana use.  

 

The bill is lengthy, and contains provisions relating to licensure, taxes, criminal penalties, and vehicle amendments. Local governments will be most interested in Section 140 that addresses local zoning and control of cannabis cultivation centers and dispensaries.   Section 140 provides as follows:

 

Section 140. Local ordinances. A unit of local government may enact reasonable zoning ordinances or resolutions, not in conflict with this Act or with Department of Agriculture or Department of Public Health rules, regulating registered medical cannabis cultivation center or medical cannabis dispensing organizations. No unit of local government, including a home rule unit, or school district may regulate registered medical cannabis organizations other than as provided in this Act and may not unreasonably prohibit the cultivation, dispensing, and use of medical cannabis authorized by this Act. This Section is a denial and limitation under subsection (i) of Section 6 of Article VII of the Illinois Constitution on the concurrent exercise by home rule units of powers and functions exercised by the State.

 

The proposed legislation does not entirely preempt local control or zoning, but it would appear to limit a local government's authority over medical marijuana dispensaries and cultivation centers to the enactment of "reasonable zoning" regulations, so long as those regulations do not unreasonably prohibiting the cultivation, dispensing, and use of medical cannabis.  The bill contains an express preemption of home rule authority.

 

In addition to the local zoning language, the bill also restricts dispensing organizations from being located within 1,000 feet of a pre-existing public or private preschool, elementary, or secondary school, day care home or center, or part day child care facility. Dispensaries are also prohibited in houses, apartments, condominiums, or any residentially zoned area. No more than 22 cultivation centers will be permitted in Illinois, with one center for each Illinois State Police district boundary.  No more than 60 dispensaries will be permitted in Illinois, and the law would require them to be "geographically dispersed throughout the State," although the bill does not further define what that means.

 

So, what does this mean for Illinois municipalities? Under the proposed language, a municipality should be able to zone cultivation centers and dispensaries, both by identifying the appropriate (or inappropriate) zoning districts for such uses, as well as determining whether these uses should be permitted by-right or require a special use permit in the defined zoning districts. A municipality should also be permitted to impose reasonable conditions on any special use permit to mitigate the impacts, just as it does for other special uses.  Likewise, it would seem reasonable to prohibit dispensaries and cultivation centers in certain zoning districts. An outright ban on all cultivation centers and dispensaries, however, would probably have to be supported by findings of fact that there is a rational basis for banning these uses from a particular community (e.g., unique character). 

 

Given that the House went through five separate amendments to HB 1, we may see one or more additional amendments to this bill before it would make its way to the Governor for signature.

 

Post Authored by Julie Tappendorf, Ancel Glink

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No Religious Discrimination Where Employee Chose Layoff Over Reasonable Accommodation

No Religious Discrimination Where Employee Chose Layoff Over Reasonable Accommodation

  Friday, April 19, 2013    Julie Tappendorf

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In Robinson v. City of Oak Park, a City employee sued for religious discrimination after her position was eliminated following an arbitration ruling that placed a more senior employee in her community relations position.  The City offered her a position in the Clerk's office, but she claimed that certain duties relating to voting and domestic partnerships would conflict with her religious beliefs as a Jehovah's Witness. Subsequently, the City offered her a position in the parking permits office with the same salary and benefits.  Although the employee acknowledged that the second position did not conflict with her religion, she rejected the position because the office was hectic and not well run and insisted that the City reassign certain duties to reasonably accommodate her in the first position.  When the City refused, she sued the City for religious discrimination.  The circuit court ruled in favor of the City, finding that the employee had no viable claim for a violation of the Illinois Human Rights Act.

 

On appeal, the appellate court considered the standards for proving religious discrimination.  First, the plaintiff must show that she was subjected to an adverse employment decision. Second, she must show that her job performance was satisfactory at the time the action was taken. Third, she must present evidence to support an inference that the adverse action was taken because of her religion.  If the employee can establish a prima facie case, then the burden shifts to the employer to establish a legitimate business reason for its action. The employee must rebut the business reason by showing it is not credible.

 

As an initial matter, the appellate court determined that no adverse action was taken against the employee because she chose to be laid off rather than accept the second clerk's position that would have reasonably accommodated her religion. The court emphasized that a reasonable accommodation is not one which is supposed to satisfy the employee's "every desire." Here, the employee admitted that the second position in the parking permits office did not conflict with her religious beliefs. Nevertheless, she rejected the reasonable accommodation offered by her employer, which resulted in her layoff. Because the court found that no adverse action was taken against the employee, she did not meet her burden of proving religious discrimination by the City.

 

Post authored by Julie Tappendorf, Ancel Glink

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Township Not Liable for Flooding Under Tort Immunity Act

Township Not Liable for Flooding Under Tort Immunity Act

  Thursday, April 18, 2013    Julie Tappendorf

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The Illinois Appellate Court recently held that the Tort Immunity Act applied to a claim brought against a township highway commissioner for damages to property from the alteration of the flow of surface water.   In Pleasant Hill Cemetery Association v. Morefield, 2013 IL App (4^th) 120645 (April 10, 2013), a Cemetery Association and its tenant farmer sued the township highway commissioner for allegedly damaging the cemetery’s farmland. The Association alleged that the highway commissioner altered the surface flow of water, which disrupted the farmland’s drainage patterns.

 

At trial, the highway commissioner contended that the Association’s claims were barred by Section 2-201 of the Local Governmental and Governmental Employees Tort Immunity Act. That Section provides that "a public employee serving in a position involving the determination of policy or the exercise of discretion is not liable for an injury resulting from his act or omission in determining policy when acting in the exercise of such discretion even though abused."  The court agreed and granted the highway commissioner’s motion to dismiss.

 

On appeal, the Illinois Appellate Court affirmed the trial court’s decision. The Court reasoned that because damaging land by altering the flow of surface water is a nuisance, and because a nuisance is a tort, the Tort Immunity Act applied.  Further, the Court determined that the highway commissioner was not liable under the “willful and wanton” exception to the Act, because altering the flow of the surface water was done for road safety improvements. The Court agreed with the highway commissioner that the safety of drivers on the road outweighed the risk of disrupting farmland drainage patterns.

 

Post Authored by Erin Baker, Ancel Glink 

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No Property Right in Employment for Police Officer

No Property Right in Employment for Police Officer

  Wednesday, April 17, 2013    Julie Tappendorf

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After a police officer was terminated for misconduct and insubordination after a hearing by the City's police committee, he filed a civil rights suit claiming that the City's termination violated his due process rights.  The lawsuit alleged that the City's police department rules and regulations gave the officer a constitutionally protected property interest in continued public employment.  Specifically, the officer argued that because the rules expressly provided that probationary officers could be terminated at-will, non-probationary officers have an inferred property interest in continued employment because the rules did not expressly provide that non-probationary employees are "at-will." 

The Seventh Circuit ruled in favor of the City, finding that nothing in the City's rules created a clear promise of continued employment, and the mere presence of a probationary period did not, by implication, create a property right for non-probationary employees. Illinois law presumes that employment relationships are at will, and a person has a property interest in a job only where he or she has a legitimate expectation of continued employment based on a legitimate claim of entitlement.  The court concluded that something "stronger than inference from silence" is required to overcome Illinois' common-law presumption of at-will employment.  Cromwell v. City of Momence (April 12, 2013). 

Post Authored by Julie Tappendorf, Ancel Glink

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Just Released: In the Zone E-News

Just Released: In the Zone E-News

  Tuesday, April 16, 2013    Julie Tappendorf

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Ancel Glink's Land Use Group just released the spring edition of its e-newsletter, In the Zone, where you can read the following articles and information: 

• "How to Discover a Wolf in Sheep's Clothing:  Encouraging Transparency in Public Hearings"
• Information about upcoming seminars and events, including the ILCMA summer conference and the APA National Conference in Chicago
• A summary of a recent Illinois decision concerning lienholder notice in demolition actions.
• An update on various proposed bills that will impact local governments on land use issues, including TIF legislation, wind energy, and diseased trees. 

You can download the e-newsletter in our Resource Center on Ancel Glink's website.

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Supreme Court Declines to Hear Challenge to NY Concealed Carry Law

Supreme Court Declines to Hear Challenge to NY Concealed Carry Law

  Monday, April 15, 2013    Julie Tappendorf

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New York has a law in place that requires a person applying for a concealed carry permit to show that they have a special need to protect themselves.  The Second Circuit Court of Appeals upheld the law in a case challenging the constitutionality of the permit requirement.  The case was appealed to the U.S. Supreme Court, which declined to hear the appeal today.  The Second Circuit decision is Kachalsky v. City of Westchester.

 

The NRA has challenged the law claiming that it is a "de facto ban on carrying a handgun outside the home."  We reported previously on the Seventh Circuit Court of Appeals case striking down an Illinois law that bans concealed carry in Moore v. Madigan.  Some thought that the U.S. Supreme Court might take on the New York case because of the conflict between the two circuits.

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National Planning Conference in Chicago April 13-17

National Planning Conference in Chicago April 13-17

  Monday, April 08, 2013    Julie Tappendorf

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More than 5,000 planners and decision-makers from around the globe are heading to Chicago for the American Planning Association’s (APA) National Planning Conference. Ancel Glink is participating in the conference, which will be held at the Hyatt Regency Chicago April 13-17.

 

The APA Conference offers workshops, tours, informative sessions and networking events for the planning community.  Ancel Glink Attorneys Julie Tappendorf and David Silverman will be participating in the following sessions:

 

-        It’s Getting Hot in Here: Taking place Sunday, April 14 from 9:45 am – 11:45 am, this session examines how different states are implementing the climate change and sustainability policies advanced by the National Environmental Policy Act. David Silverman and additional speakers will discuss how the courts are responding to the various legislative initiatives and how recent court decisions have related.

-        Career Reality – Speed-Dating for Planners: Julie Tappendorf and David Silverman will both be participating in this engaging session, which provides planning students the opportunity to chat with professionals in planning’s various fields. Students will learn about job responsibilities, required skills and career paths, while meeting and interacting with leaders in the planning field. The two-part session is taking place Sunday, April 14 from 2:30 pm – 5:00 pm.

-        Addressing Development Entitlements: David Silverman is partaking in this informative session that details the development entitlements in subdivisions throughout the Intermountain West region of the U.S. The session explores a 4-year long study from the Lincoln Institute of Land Policy and Sonoran Institute on the region and will culminate with the release of a final report on the study. Attendees can learn about the extent and nature of the entitlement issues and what communities can do to address and avoid issues. The session will be held Monday, April 15 from 2:30 pm – 3:45 pm.

-        Achieving Development through Community Agreement: Learn the best strategies for meeting development goals. The authors of the book "Development by Agreement: a Tool Kit for Land Developers and Local Governments," Julie Tappendorf, David Callies, and Cecily Talbert Barclay will explain how diverse stakeholders have reached agreements on affordable housing, conservation, local jobs and amenities, parks and schools without employing traditional zoning practices. Learn about the legal bases and potential pitfall at this session on Tuesday, April 16 from 7:15 am – 8:45 am.

 

You can learn more about the conference on the APA's website. 

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Write-In Candidacy for Primary Election Must Be Filed with Both Local and County Clerks

Write-In Candidacy for Primary Election Must Be Filed with Both Local and County Clerks

  Tuesday, April 02, 2013    Julie Tappendorf

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A candidate for the Democratic Party's nomination for village president filed a declaration of intent to be a write-in candidate with the village clerk within the statutory timeframe for the primary election. However, the county clerk refused to conduct a primary election because the declaration was not filed with his office.  The candidate filed a mandamus action, and the circuit court ordered the county to hold a primary election. The county clerk appealed. The question in Lewis v. Orr, 2013 IL App (1st) 130357, was in which office must a declaration for write-in candidacy be filed - village clerk or county clerk? 

 

The First District Appellate Court reviewed two statutory provisions relating to write-in candidacies.  Section 7-5 of the Election Code provides that in order to be a write-in candidate for a primary election, a candidate must file a notice of intent with the local election official. Here, the candidate complied with Section 7-5 by filing her declaration of intent to be a write-in candidate with the village clerk, who is the "local election official."  However, Section 17-16.1 of the Election Code provides that write-in votes will only be counted for candidates who file notarized declarations of intent to be a write-in candidate with the "proper election authority."  The Election Code defines the proper election authority as the county clerk.  In this case, the candidate acknowledged that she did not file her declaration with the county clerk.

 

The court determined that following a strict interpretation of the two statutes in this case would lead to an absurd result - it would require a primary election under Section 7-5 but would not count any of the votes cast for the write-in candidate for failure to comply with 17-16.1.  Consequently, the court concluded that a primary need only be held when a write-in candidate files the proper paperwork with both the election authority (county clerk) and the election official (village clerk).  Because she failed to file her declaration with both the county and village clerks, she would not be entitled to run as a write-in candidate in the primary election.

 

Post Authored by Julie Tappendorf, Ancel Glink

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PAC Advisory Opinion Unenforceable and Not Reviewable

PAC Advisory Opinion Unenforceable and Not Reviewable

  Monday, April 01, 2013    Julie Tappendorf

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Illinois law authorizes the Public Access Counselor (PAC) office of the Attorney General to issue binding or advisory opinions in response to a request for review of a public body's actions under the Open Meetings Act or Freedom of Information Act.  Binding opinions are subject to review or appeal to the circuit court.  The statute is silent as to whether an advisory opinion issued by the PAC could similarly be reviewed or appealed to the circuit court.  The Fourth District Appellate Court recently held that they are not reviewable in Brown v. Grosskopf, 2013 IL App (4th) 120402, holding that a non-binding opinion of the PAC office is "merely the Attorney General's advisory and unenforceable statement on the matter" and "has no legal effect." 

 

In this case, the the Livingston County States Attorney filed a declaratory judgment action against the Attorney General to appeal an advisory opinion by the PAC that the States Attorney's office was a "public body" subject to FOIA. The Attorney General filed a motion to dismiss, alleging that there was no legal controversy because nonbinding opinions are nonreviewable.  The trial court agreed, dismissing the case.  The appellate court affirmed, finding that state statute did not provide for any appeal or review of nonbinding opinions issued by the PAC office.  The court determined that since the advisory opinion has no legal effect and cannot be enforced by the PAC, it cannot be the basis for a lawsuit or appeal.

 

This decision is at odds with an earlier Cook County Circuit Court decision that held that nonbinding opinions of the PAC are subject to administrative review in the circuit court. See Garlick v. OPRF, et al. 11 CH 7587 (July 17, 2012).   That case was previously reported on the blog. 

 

Post Authored by Julie Tappendorf, Ancel Glink

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Lack of Notice to Lienholder Did Not Require Vacating Demolition Order

Lack of Notice to Lienholder Did Not Require Vacating Demolition Order

  Thursday, March 28, 2013    Julie Tappendorf

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In 2007, the Village of Ringwood filed a lawsuit seeking a court order to allow it to demolish a fire-damaged apartment building owned by defendant. The complaint was filed under section 11-31-1(a) of the Illinois Municipal Code (65 ILCS 5/11-31-1(a)), which provides:

(a) The corporate authorities of each municipality may demolish, repair, or enclose or cause the demolition, repair, or enclosure of dangerous and unsafe buildings or uncompleted and abandoned buildings within the territory of the municipality and may remove or cause the removal of garbage, debris, and other hazardous, noxious, or unhealthy substances or materials from those buildings.

The corporate authorities shall apply to the circuit court of the county in which the building is located (i) for an order authorizing action to be taken with respect to a building if the owner or owners of the building, including the lien holders of record, after at least 15 days’ written notice by mail so to do, have failed to put the building in a safe condition or to demolish it or (ii) for an order requiring the owner or owners of record to demolish, repair, or enclose the building or to remove garbage, debris, and other hazardous, noxious, or unhealthy substances or materials from the building. It is not a defense to the cause of action that the building is boarded up or otherwise enclosed, although the court may order the defendant to have the building boarded up or otherwise enclosed.

The trial court determined that the Village had the burden to prove: (1) that the building was “dangerous and unsafe” under section 11-31-1(a) and (2) that the building was “beyond reasonable repair."  The trial court ruled in favor of the Village, determining that it had met its burden. The trial court was strongly influenced by a letter, sent to the defendant over 6 months before the complaint was filed, directing defendant to “demolish the building.” The trial court determined that the letter gave defendant notice and a reasonable opportunity to repair the building. 

 

Defendant appealed the trial court’s demolition order to the Illinois Appellate Court.  He first argued that the Village failed to prove that the building was “dangerous and unsafe.” The Appellate Court rejected that argument because defendant had agreed that the damage to the building rendered it uninhabitable. Defendant next argued that the Village failed to prove that the building was damaged beyond reasonable repair. Under the Village zoning ordinance, a building that was damaged to the extent of more than 50% of its replacement cost could not be rebuilt or reoccupied. The court determined that defendant’s building was damaged to the extent of more than 50% and that the ordinance barred repair. Finally, defendant argued that the Village failed to comply with the 15 day notice provision of section 11-31-1(a). While the Appellate Court rejected this argument as to the defendant, finding that the letter was enough to provide notice, it also found that the Village should have given notice to the lienholders of record. Because the lienholders did not receive notice of the demolition order, the court vacated the demolition order and remanded the case for a new trial. 

 

On remand, the trial court found only one lienholder, which did not attend the subsequent trial on the demolition complaint. The Village produced a waiver, signed by the lienholder, expressly waiving its right to any notice, as provided in section 11-31-1(a).  The trial court ultimately entered an order directing the defendant to demolish the building within 30 days. 

 

The defendant again appealed to the Illinois Appellate Court arguing that the Village’s failure to serve the lienholder prior to the demolition suit and the lienholders absence at trial required the case to be remanded for a new trial on the complaint. The Appellate Court concluded that although the lienholder was entitled to notice of the demolition suit, it did not need to vacate the demolition order or remand for a new trial. The Appellate Court based its decision on defendant’s failure to prove that the lienholders interests were not protected in the underlying proceedings.  The Appellate Court reasoned that because the court vacated the demolition order, it provided the lienholder an opportunity to participate in the demolition suit, which it declined. Further, the Appellate Court reasoned that the remand was to allow the lienholder to raise objections to challenge the Village’s complaint, and it was not for the defendant to present fresh evidence. Village of Ringwood v. Foster, 2013 IL App (2d) 111221 (February 11, 2013).

 

Post Authored by Erin Baker, Ancel Glink

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Prayer at City Council Meeting Not Establishment of Religion

Prayer at City Council Meeting Not Establishment of Religion

  Tuesday, March 26, 2013    Julie Tappendorf

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The City of Lancaster, California begins each City Council meeting with a prayer.  After the ACLU challenged the City's practice, the City adopted an official invocation policy that resulted in the collection of a list of religious group volunteers for the invocation. The policy's stated intent was to encourage a "diversity of religious denominations and faiths represented and practiced" by citizens in the community.  

 

Two citizens brought a civil rights lawsuit against the City claiming that the City's invocation policy amounted to an unconstitutional establishment of religion.  The district court rejected their claims, finding that the City's selection process did not discriminate against any particular faith, and that the City's policy was designed to avoid establishment clause problems because the City did not regulate the content of the prayers.

 

The plaintiffs appealed to the 9th Circuit Court of Appeals, which affirmed the district court.  Rubin v. City of Lancaster (9th Cir. March 26, 2013).  First, the Court cited the U.S. Supreme Court's decision in Marsh v. Chambers which upheld as constitutional the Nebraska state legislature's practice of opening each legislative day with a prayer.  Second, the Court determined that the City made every effort to include a variety of religious expressions by inviting every local religious group to be included in the invocation list.  Third, the Court found that the City stressed its policy's nonsectarian purpose, and encouraged prayer not disparage or exploit any particular faith or belief.  Fourth, the Court found that although a majority of the volunteer religious groups were of the Christian faith, that was a reflection of the community itself, and not any aim or practice of the City.  In sum, the Court determined that the City's prayer policy was not an unconstitutional establishment of religion.

 

Post Authored by Julie Tappendorf, Ancel Glink

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