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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

Tuesday, December 12, 2023

Illinois Supreme Court Dismisses Class Action Challenging Parking Ticket Policy

  Tuesday, December 12, 2023    

The Illinois Supreme Court recently dismissed a class action lawsuit challenging the City of Chicago's parking ticket citation practice in the downtown central business district (CBD). Pinkston v. City of Chicago

The City of Chicago imposed two different fines for expired parking meters depending on whether a car was parked within or outside its CBD, and fines were larger within the CBD. A driver was given an expired meter ticket with a CBD fine despite being parked further south than the CBD’s southernmost boundary. The driver paid the fine, without contesting the ticket, but then later filed a lawsuit. The lawsuit, which was filed on behalf of all who had been ticketed, claimed that the City had a routine practice of issuing tickets (over 30,000 of them) imposing CBD parking fines to cars parked outside the CBD boundaries. The circuit court dismissed the lawsuit and the driver appealed. On appeal, the appellate court reversed the trial court, sending the case back for further proceedings.

The case eventually made its way to the Illinois Supreme Court, which dismissed the case for failure to exhaust administrative remedies because the citations were not challenged through an administrative appeal process before the class action lawsuit was filed. The Court also determined that since the driver did not challenge his own ticket, there was no determination that the driver’s ticket was improperly written, so the driver could not establish his right to represent the class. The Supreme Court rejected the driver's argument that the nature of the lawsuit as a class action exempted it from the "exhaustion of remedies" doctrine. 

Post Authored by Daniel Lev, Ancel Glink

  

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Monday, December 11, 2023

Tuesday, December 5, 2023

PAC Finds Public Body in Violation of OMA for Approving Closed Session Minutes in Closed Session

  Tuesday, December 05, 2023    

The Illinois Attorney General's Public Access Counselor (PAC) issued its 14th binding opinion of 2023 finding a public body in violation of the OMA for taking final action to approve closed session meeting minutes in closed session. PAC Op. 23-014.

A trustee filed a complaint with the PAC alleging that his board voted to approve the closed session meeting minutes of a prior board meeting while in closed session in violation of the OMA. According to the PAC opinion, the board took a vote on the minutes in closed session but did not take any action in open session to approve the closed session minutes. The PAC determined that the vote in closed session to approve the closed session meeting minutes constituted "final action" that section 2(e) of the OMA provides cannot be taken in closed session.

The PAC rejected the public body's argument that section 2(c)(21) of the OMA (reprinted below) expressly authorizes approval of the minutes in closed session, finding that this section only allows discussion of whether the public body will approve the minutes but it does not authorize final action on those minutes which, the PAC said, must be taken in open session under an agenda item that identifies the final action to be taken. The PAC directed the board to include the closed session meeting minutes on its next board meeting agenda for approval in open session.

(21) Discussion of minutes of meetings lawfully closed under this Act, whether for purposes of approval by the body of the minutes or semi-annual review of the minutes as mandated by Section 2.06.

Although not raised in the trustee's complaint, the PAC also noted that the board failed to cite to the above-referenced OMA section when it went into closed session and also did not include a reference to the approval of closed session meeting minutes on the agenda for this meeting.

  

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Monday, December 4, 2023

Person's Own FOID Card Records Not Releasable Under FOIA

  Monday, December 04, 2023    

Two individuals submitted separate FOIA requests to the Illinois State Police (ISP) seeking records relating to their own Firearm Owners’ Identification (FOID) cards. ISP denied both requests, citing FOIA exemption 7.5(v), which exempts from disclosure the names and information of people who have applied for or received FOID cards under the Firearm Owner’s Identification Card Act. Both requesters then sued ISP, claiming it denied their FOIA requests in violation of FOIA. The circuit court and the Appellate Court ruled in favor of the requesters, finding the requested records were not exempt from disclosure because the requesters were seeking their own FOID records, and ordered ISP to disclose each requester's FOID card application and ISP’s FOID card revocation letters previously sent to the requesters.

On appeal, the Illinois Supreme Court reversed and ruled in favor of the ISP, finding that FOIA section 7.5(v) is a blanket exemption prohibiting the disclosure of all FOID card information under FOIA, with no exception for requesters who seek their own information. The Supreme Court also rejected the Appellate Court’s argument that an individual may consent to the disclosure of their own FOID card information. Because there is no federal or state law that requires ISP to disclose the requested FOID information, the plaintiffs could not consent to the disclosure of otherwise exempt private FOID card information. Hart v. Illinois State Police.

Post Authored by Eugene Bolotnikov, Ancel Glink

  

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Thursday, November 30, 2023

Court Upholds Road Impact Fees Imposed Through IGA and Annexation Agreement

  Thursday, November 30, 2023    

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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Tuesday, November 28, 2023

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

  Tuesday, November 28, 2023    

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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Monday, November 27, 2023

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

  Monday, November 27, 2023    

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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Wednesday, November 15, 2023

Illinois General Assembly Fall Session

  Wednesday, November 15, 2023    

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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Wednesday, November 8, 2023

Record Creation Requirements of FOIA

  Wednesday, November 08, 2023    

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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Tuesday, November 7, 2023

Seventh Circuit Rejects injunction Against Enforcement of Protect Illinois Communities Act

  Tuesday, November 07, 2023    

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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Monday, November 6, 2023

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

  Monday, November 06, 2023    

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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Friday, November 3, 2023

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

  Friday, November 03, 2023    

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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