$50 Citation for Facebook Post Rescinded

$50 Citation for Facebook Post Rescinded

  Friday, May 30, 2014    Julie Tappendorf

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From Strategically Social:  On May 20th, a Will County Forest Preserve District officer issued a $50 citation to a woman who had posted the following on Facebook:

I was feeling bad that I haven’t bought a pass and been bringing Ginger there but I’m pretty glad I haven’t. So not going to worry about it until later. I hope all the doggies get better soon.

The comment was posted in response to concerns some dog owners had posted about kennel cough among some dogs at a dog park in Will County.  A county employee noticed the comment and forwarded it to an officer, who interpreted the comment to mean the woman was using the dog park without a permit and issued her the citation.

After receiving the citation, the woman posted on the dog park Facebook page that she had not been to the dog park since 2013.  Shortly thereafter, the county rescinded her citation and stated that the county does not monitor social media in search of potential law breakers nor is it county policy to issue tickets for social media posts.

Post Authored by Julie Tappendorf, Ancel Glink

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Alderman Entitled to Absolute Immunity for Statements at City Council Meeting

Alderman Entitled to Absolute Immunity for Statements at City Council Meeting

  Thursday, May 29, 2014    Julie Tappendorf

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A city and a city council member were sued by a resident for defamation, false light, negligent infliction of emotional distress, and various civil rights violations relating to statements made by an alderman at a city council meeting about the plaintiff.  In his statement, the alderman stated that he was disappointed in the activities of a resident (plaintiff) in trying to delay construction activities on land adjacent to hers. Specifically, the alderman called her conduct 'righteous, self serving...and not in character with Lake Forest" and that her activities "cost the new homeowner months of delays and tens of thousands of dollars in legal bills."

Plaintiff alleged that these statements by the alderman were defamatory because they were intentionally designed to denigrate her character and injured her reputation, and were malicious in nature. She also alleged that the City and alderman exposed her to "public ridicule."  She also claimed that the City permitted and encouraged the alderman's statement. She sought $500,000 in compensatory damages, and $2 million in punitive damages. 

The City and named alderman filed a motion to dismiss based on absolute legislative privilege, among other defenses, and the trial court granted the City's motion.  

On appeal, the appellate court first noted that an action can be dismissed where the claim is barred by an affirmative defense, including absolute immunity.  Illinois courts uniformly recognize a privilege for statements made by members of city councils and village boards at their meetings.  That privilege or immunity applies to nearly all common law torts, including defamation and false light as alleged in this case.  The court rejected the plaintiff's request that the court create an exception to the absolute immunity rule, holding that it was irrelevant that the topic about which the alderman spoke was not part of the meeting agenda. The court also found the City immune from liability under the Tort Immunity Act, which expressly protects public entities for libelous or slanderous actions of its employees.  Friedman v. Moore, 2014 IL (2d) 130671-U (unpublished)

Post Authored by Julie Tappendorf, Ancel Glink

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Responsible Bidder Bill Still Alive

Responsible Bidder Bill Still Alive

  Wednesday, May 28, 2014    Julie Tappendorf

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The IML recently reported about an amendment to the "Responsible Bidder" bill (HB 924) that has given new life to this proposed legislation.  Public bodies should be aware of the bill because it could significantly increase the cost of public projects if it is ultimately approved.

HB 924, as amended, would require that all local government public works projects use contractors and sub-contractors that are "responsible bidders," as defined in the law.  A "responsible bidder" would have to meet certain criteria in the statute, including that the bidder and each subcontractor participate in apprentice and training programs approved by and registered with the U.S. Department of Labor, among other requirements.  

The IML remains opposed to the legislation, even as amended, because the requirements necessary to qualify as a "responsible bidder" would impose higher costs on smaller contractors and render them unable to afford to bid on public works projects. 

The implementation of the new requirement would be phased so that certain projects would be exempt, as follows: 

Projects less than $100,000 are exempt from July 1, 2015 through June 30, 2016

Projects less than $50,000 are exempt from July 1, 2016 through June 30, 2017

Projects less than $20,000 are exempt from July 1, 2017 and onward.

You can read more about the amended legislation on the IML website here.

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Liquor Revocation Did Not Violate Due Process

Liquor Revocation Did Not Violate Due Process

  Tuesday, May 27, 2014    Julie Tappendorf

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The Liquor Commissioner of the City of Peoria revoked the liquor license for Sheridan Liquors, a local liquor store after the City discovered that the owner and one of the managers were indicted under the Money Laundering Control Act.  According to the indictment, the owner and manager operated a check cashing business at the liquor store.  They structured the necessary withdrawals from the liquor store bank account to cover the cash needed for the check cashing business in order to avoid federal reporting requirements.  

After the  owner was guilty of all counts in the federal indictment, the City sent notice of a violation of the local liquor regulations that prohibit a liquor licensee from engaging in any activity prohibited by federal law. A revocation hearing was conducted by the local liquor commissioner, and evidence of the criminal trial was introduced into the record of the hearing, over the objection of the owner's counsel.  The owner and City presented evidence to support their cases before the liquor commissioner, and at the conclusion of the hearing, the commissioner revoked the liquor license.  He also issued a written order, with findings of fact based on the evidence submitted at the hearing.  

Sheridan Liquors appealed to the state liquor commission, which confirmed the revocation. The local and state commission decisions were upheld on administrative review appeal to the circuit court, and again at the appellate court.

The Illinois Supreme Court considered three issues on appeal:  (1) whether the local commissioner denied the licensee due process; (2) whether the local commissioner's findings were supported by substantial evidence and (3) whether the local commissioner's decision to revoke the license was supported by the record.  

The Supreme Court concluded that the revocation procedure did not violate Sheridan Liquors' due process rights.  Wisam 1, Inc. v. Illinois Liquor Control Commission, 2014 IL 116173 (May 22, 2014).  First, the Court held that due process did not require the liquor commissioner to allow the owner to "relitigate" the owner's criminal conviction.  Furthermore, the liquor statute clearly states that a licensee can be held responsible for the conduct of its officers, managers, and other agents - in this case, the convicted individual was an employee/manager and agent of the business. Second, although the Court did find that the City improperly sought to admit the entire transcript (inadmissible heresay evidence), there was sufficient competent evidence elsewhere in the hearing to support the liquor commissioner's decision, and the admission did not rise to the level of prejudicial error.  

Post Authored by Julie Tappendorf, Ancel Glink

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"In the Zone" E-News Released, Spring 2014 Edition

"In the Zone" E-News Released, Spring 2014 Edition

  Friday, May 23, 2014    Julie Tappendorf

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Ancel Glink's land use group just published the Spring, 2014 edition of its "In the Zone" e-newsletter.   This edition includes the following articles:

• Will Koontz "Chill" Negotiations Between Governments and Developers?  
• Proposed Medical Cannabis Rules Would Limit Local Zoning Authority
• Bill Would Clarify Municipal Zoning Authority Over Schools
• Elected Officials Immune from Liability in Discrimination Suit Brought by the American Islamic Center

You can download the full newsletter in the Resource Center of Ancel Glink's website, under "Newsletters" or download it here.

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County State's Attorney is a "Public Body" Under FOIA

County State's Attorney is a "Public Body" Under FOIA

  Thursday, May 22, 2014    Julie Tappendorf

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In 2010, a reporter submitted a number of FOIA requests to Kendall County asking for various records held by the State's Attorney's office.  The State's Attorney's office denied the request on the grounds that the State's Attorney's office is part of the judicial branch of government and are, therefore, exempt from FOIA. The trial and appellate courts agreed, both holding that State's Attorneys are exempt from FOIA.  

On appeal, the Illinois Supreme Court reversed the trial and appellate courts, holding that a State's Attorneys office is a "public body" under FOIA.  Nelson v. Kendall County, 2014 IL 116303 (May 22, 2014). Although the Supreme Court acknowledged that FOIA does not include the judicial branch or judiciary, the Supreme Court determined that a State's Attorney's office is not part of the judiciary or the judicial branch of government.  Instead, the Court concluded that the office of State's Attorney is part of the executive branch of state government, which falls squarely within the definition of "public body" under FOIA.

We previously posted about the Second District decision here.

Post Authored by Julie Tappendorf, Ancel Glink

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Takings Claim is Ripe Because Final Decision Would be Futile

Takings Claim is Ripe Because Final Decision Would be Futile

  Wednesday, May 21, 2014    Julie Tappendorf

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The U.S. Supreme Court has established a "ripeness" test for takings claims.  Before a property owner can proceed with a takings claim against a regulatory agency, it must show that he or she has (1) obtained a final decision from the local regulatory agency and (2) sought just compensation under available state procedures. 

There is an exception to the Williamson County ripeness requirement, however, where a property owner can show that seeking a final decision from the local agency would be futile or where the government imposes repetitive or unfair land use procedures in order to avoid a final decision.  In this case, that is what happened to the property owner in Sherman v. Town of Chester (2d Cir., May 16, 2014).  Based on these exceptions to the ripeness test, the Second Circuit Court of Appeals allowed Sherman's takings claim to proceed, even without the local final decision.

Steven Sherman purchased 400 acres of property for $2.7 million in 2000.  He applied for subdivision approval, but the Town put in place a moratorium that prevented him from developing.  After the moratorium expired, the Town  enacted a new zoning ordinance that required him to revise and resubmit his development plan.  He did so, and resubmitted his application, only to have the Town again amend its zoning regulations.  The cycle continued for years - each time he resubmitted a plan based on an amended zoning ordinance, the Town would amend its zoning ordinance again.  Until 2010, when he filed suit against the Town.  At that point, he had spent $5.5 million on top of the initial $2.7 million for the land.  At the time the lawsuit was filed, he was facing foreclosure and personal bankruptcy.  

The federal district court ruled against Sherman, finding that his takings claim was not ripe under Williamson County.  He appealed to the Second Circuit Court of Appeals, which reversed, concluding that Sherman was not required to obtain a final decision from the Town because it would have been futile, based on the Town's use of repetitive and unfair procedures over a 10 year period to avoid making a final decision on Sherman's land development proposal.  The court also rejected the Town's argument that Sherman failed to meet the second prong of the ripeness test by bringing a just compensation claim in state court, finding that it was the Town, not Sherman, who removed the case to federal court.  

After finding the case ripe for adjudication, the Court then addressed the merits of Sherman's takings claim. Applying the Penn Central analysis of a non-categorical taking, the Court determined that Sherman had stated a takings claim against the Town, finding the Town's actions in this case to be  "unfair, unreasonable, and in bad faith."  Thus, the district court's dismissal of his claim was improper, and the Court  remanded the case back to the district court for further proceedings.

Post Authored by Julie Tappendorf, Ancel Glink

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Court Dismisses Section 1981 Discrimination Claim Against Forest Preserve District

Court Dismisses Section 1981 Discrimination Claim Against Forest Preserve District

  Tuesday, May 20, 2014    Julie Tappendorf

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An employee of the Cook County Forest Preserve District sued the District (his former employer) after he was fired for having sex with a co-worker in the FPD's Aquatic Center.  His complaint alleged claims under Section 1983 of the Civil Rights Act for race discrimination and due process violations and Section 1981 for race discrimination in the making and enforcement of contracts.  The district court dismissed his 1983 claims because they were not brought within the 2 year statute of limitations.  The court also dismissed his Section 1981 claims because Section 1981 does not provide a remedy against government entities.  

The employee appealed to the Seventh Circuit, arguing that Section 1981 does provide a remedy for claims against government entities.  He further argued that his case should be allowed to proceed under Section 1981 because his Section 1983 claims were barred under the 2 year statute of limitations.  The Seventh Circuit disagreed, and dismissed his case in FPD in Campbell v. Cook County Forest Preserve District, (7th Cir. May 15, 2014), holding that Section 1981 does not create a private right of action against state actors. 

Post Authored by Julie Tappendorf, Ancel Glink

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City Can Enforce Administrative Adjudication Order in Court

City Can Enforce Administrative Adjudication Order in Court

  Monday, May 19, 2014    Julie Tappendorf

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The Illinois Municipal Code authorizes home rule municipalities to establish administrative adjudication hearing programs to adjudication ordinance violations.  The Village of Lake in the Hills used its program to find the defendant in violation of a variety of municipal ordinances and assessed fines.  The Village also sought to enforce the hearing officer's orders in the circuit court. The court denied the Village's petitions, however, finding no statutory authority for a Village to enforce a hearing officer's order in circuit court.  

On appeal, the appellate court ruled in favor of the Village in Village of Lake in the Hills v. Dennis Niklaus (May 15, 2014).  The court determined that Division 2.1 of the Illinois Municipal Code provides that the order of a hearing officer "may be enforced in the same manner as a judgment entered by a court of competent jurisdiction." The process that the Village used to enforce the hearing officer's orders in this case (filing petitions to enforce the hearing officer's orders with the circuit court, accompanied by certified copies of the administrative orders) was proper. As a result, the court reversed the circuit court's decision, finding that a home rule municipality has authority to enforce hearing officer decisions in the circuit court.

Post Authored by Julie Tappendorf, Ancel Glink

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City's Demolition Tax is a Tax, Not a Fee or Fine

City's Demolition Tax is a Tax, Not a Fee or Fine

  Friday, May 16, 2014    Julie Tappendorf

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The City of Evanston, Illinois imposes a demolition tax in the amount of $10,000 per residential building, or $3,000 per residential unit, whichever is greater.  The tax proceeds are used to fund the City's Affordable Housing Fund, which helps low and moderate income residents find and keep affordable housing.  The owners of a single family residence in the City claim that the sale of their home fell through when the potential buyer became aware of the $10,000 demolition tax.  

Plaintiffs filed their initial lawsuit against the City, its mayor and nine aldermen, claiming that the demolition tax violated their civil rights through the 5th and 14th Amendments to the U.S. Constitution, among other claims. The district court dismissed that first lawsuit, holding that the Tax Injunction Act prohibits federal courts from interfering with the imposition or collection of a tax.  The Seventh Circuit reversed the district court's decision on the TIA, finding that based on a multi-factor test, the demolition tax was not a tax, but a regulatory device, because it provided an effective deterrent against the demolition of residential buildings.  Kathrein v. City of Evanston, 636 F.3d 906 (7th Cir. 2011) (Kathrein I) The case was then remanded back to the district court.

While the district court proceedings were pending, the City filed another motion to dismiss based on a more recent decision by the Seventh Circuit that rejected the multi-factor approach to identifying a tax that it used in the 2011 decision.  The district court agreed with the City's arguments that the demolition tax was an "exaction designed to generate revenue," as opposed to a fine that was "designed...to punish" or a fee that compensates "for a service that the state provides to the persons or firms on whom...the exaction falls."  

The case again made its way back to the Seventh Circuit on appeal of the district court's dismissal of the plaintiffs claims against the City.  Kathrein v. City of Evanston, (7th Cir. May 15, 2014) (Kathrein II). This time, the Seventh Circuit ruled in favor of the City that the demolition tax was, in fact, a tax.  The Court applied its new "test" for determining whether a particular exaction is a tax, fine, or fee, finding that the demolition tax was not designed to punish owners for demolishing buildings nor does the tax compensate for a service to the owners who are taxed.  Instead, the demolition tax is imposed in order to generate revenue to fund the City's affordable housing program. 

Because the demolition tax is, in fact, a tax, the Court next determined that the TIA bars the plaintiffs' challenge in federal court. The Court rejected the plaintiffs' argument that the TIA is unconstitutional, finding that they had no standing to pursue that claim and waived the claim. 

The Court's analysis on whether a particular exaction is a tax, fee, or fine is worth reading as it provides some guidance to municipalities when they draft exaction ordinances to ensure they include the appropriate recitals and findings to support their establishment of a new exaction.

Post Authored by Julie Tappendorf, Ancel Glink

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Developer Entitled to Letter of Credit Proceeds

Developer Entitled to Letter of Credit Proceeds

  Thursday, May 15, 2014    Julie Tappendorf

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An appellate court recently required a municipality to refund a $43,000 escrow posted by a developer to secure the construction of public improvements that were required to be constructed under an annexation agreement. Squires Landing, LLC v. City of Rochelle, 2014 IL App (2d) 130818-U (May 9, 2014).

In 2005, Squires Landing, LLC entered into a 20 year annexation agreement with the City of Rochelle.  As part of the agreement, Squires was required to post a cash escrow in the amount of $43,000 to secure the construction of intersection improvements required for development of the property.  The agreement provided that if the $43,000 were not used before the agreement expired, it would be refunded to Squires or its successor.  In 2008, the parties agreed that Squires could post a letter of credit in lieu of the cash escrow. The letter of credit provided that if Squires refused or failed to renew the letter of credit, the City could draw on the letter of credit.  

In 2009, Squires sold the property to AKCK, LLC, and demanded the City release the letter of credit. The City refused to release the letter of credit, and it was renewed until October of 2012.  The City then sent a draw to the bank in the full amount of the letter of credit, on the basis that Squires failed to renew the letter of credit in violation of the terms of the annexation agreement.

Squires then filed suit, alleging that the City's draw on the letter of credit was improper.  The City responded by bringing in the successor property owner, AKCK, alleging that it would be obligated to post an escrow if Squires failed to do so as a successor in interest under the annexation agreement.  AKCK responded that Squires did not disclose the escrow requirement when it sold the property to AKCK.  

The City filed a motion for summary judgment, alleging that Squires had a continuing obligation to post the escrow, even after the sale to AKCK.  Squires responded that its obligation to post the escrow terminated when it sold the property to AKCK.  The trial court ruled in favor of the City, and Squires appealed.

On appeal, the appellate court reviewed the language of the annexation agreement to determine whether Squires' obligation to post an escrow continued after its sale to AKCK.  Based on the language in the annexation agreement that provided that upon assignment of the agreement, Squires would have no further obligations under the agreement, the appellate court reversed the trial court's ruling in favor of the City and ordered the City to refund the $43,000 to Squires.

The result is interesting for a few reasons.  First, requiring the City to turn over the $43,000 draw proceeds from the letter of credit would seem to result in a windfall to Squires, since Squires didn't post the $43,000 in cash but through a letter of credit.  Second, the court doesn't really discuss AKCK's obligation to post an escrow as the successor in interest under the annexation agreement - the clear language of the annexation agreement would seem to require that. Third, the agreement provided for a refund of the escrow only if (1) the property was not developed within the 20 year time frame or (2) a substitute escrow was posted by a successor in interest.  Here, agreement does not expire until 2025 and AKCK, the successor in interest, had not posted a substitute escrow with the City.  The result of this decision is to leave the City without any security for the public improvements required by the annexation agreement.

Post Authored by Julie Tappendorf, Ancel Glink

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U.S. Supreme Court Declines to Hear RLUIPA Appeal

U.S. Supreme Court Declines to Hear RLUIPA Appeal

  Wednesday, May 14, 2014    Julie Tappendorf

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Previously, we reported on the case filed against the Town of Woodboro and County of Oneida after they denied Eagle Cove Camp & Conference Center's zoning request to allow it to operate a year-round bible camp on land it owned on Squash Lake.  Both the district court and U.S. Court of Appeals for the Seventh Circuit ruled in favor of the Town and County. Eagle Cove Camp & Conference Center v. Town of Woodboro, (7th Cir. October 30, 2013). 

Following its loss at the 7th Circuit, Eagle Cove filed a petition for certiorari to the U.S. Supreme Court. The U.S. Supreme Court has not considered a RLUIPA case in the land use context, so many were watching to see what the Court would do.  Well, last week the Supreme Court denied Eagle Cove Camp & Conference Center, Inc.’s petition, meaning that the 7th Circuit's ruling that the Town and County did not violate RLUIPA in denying zoning relief to Eagle Cove will stand.

Hat tip to RLUIPA Defense for reporting on the Supreme Court's decision.

Post Authored by Julie Tappendorf, Ancel Glink

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