Amendments to Affordable Housing and Appeal Act Enacted

Amendments to Affordable Housing and Appeal Act Enacted

  Tuesday, August 08, 2023    Julie Tappendorf

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P.A. 103-478 (SB 1476) was enacted last week to amend certain provisions of the Affordable Housing and Appeal Act, as follows:

First, the Act modifies provisions regarding the content of required affordable housing plans to require plans to also include a description of the following:

• A consideration of affordable housing for both owner-occupied dwelling units and dwelling units for rent as part of the identification of land most appropriate for the construction of affordable housing;
• housing market conditions;
• infrastructure limitations; 
• local government ordinances (including zoning or other land use ordinances), policies, or practices that do not affirmatively further fair housing;
• any other local factors that constrain the local government's ability to create and preserve affordable housing.

The plan must also include a plan or potential strategies to eliminate or mitigate any identified local constraints to affordable housing.

The Act also requires plans to include proposed timelines within the first 24 months after the plan is adopted for actions to implement the plan. 

The Act requires non-exempt local governments to submit a report within 4 years after adopting or updating a plan to IHDA summarizing actions the local government has taken to implement its affordable housing plan.

Second, the Act modifies provisions relating to developer appeals to the State Housing Appeals Board, expanding the parties that can file an appeal to include not only the affordable housing developer, but also persons who would be eligible to reside in the proposed development and housing organizations

Third, the Act modifies the make-up of the State Housing Appeals Board.

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New Laws Amend Illinois Prevailing Wage Act

New Laws Amend Illinois Prevailing Wage Act

  Wednesday, August 02, 2023    Julie Tappendorf

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There were a number of changes to the Illinois Prevailing Wage Act this session affecting government contracting that local governments should be aware of. We've summarized some of these amendments below, which will take effect on January 1, 2024, except for PA 103-188 which became effective June 30, 2023:

PA 103-48 (HB 3491) - This amendment to the Prevailing Wage Act provides a right of action  to workers employed by a contractor or subcontractor who is paid less than the prevailing wage rates for the work performed on a project covered by the Act.

PA 103-188 (HB 3351) - This law extends the Prevailing Wage Act requirements to projects that are undertaken pursuant to an incentive program or initiative described in the Illinois Power Agency Renewable Energy Resources Fund and Illinois Solar for All Program, except for residential buildings or houses of worship. Effective June 30, 2023

PA 103-327 (HB 2845) - This new law amends the Prevailing Wage Act to add the removal, hauling, transportation, and disposal of biosolids, lime sludge, and lime residue from a water treatment plant or facility.

PA 103-346 (HB 3370) - This new law amends the Prevailing Wage Act to add power washing to remove paint or other coatings, oils or grease, corrosion, or debris from a surface, or to prepare a surface for a coating to the Act.

PA 103-347 (HB 3400) - This new law amends the Prevailing Wage Act to add new reporting requirements that include reporting demographic information of workers on public work projects, to include gender, race, and ethnicity broken down by the following categories: (1) type of trade; (2) whether the worker is a journey worker or apprentice; and (3) total work hours performed.

PA 103-359 (HB 3792) - This new law amends the Prevailing Wage Act to add projects involving fixtures or permanent attachments to light poles owned by a public body with an exception for work performed by employees of the public body.

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Act Expands Reasons for Remote Attendance by Member of Public Body

Act Expands Reasons for Remote Attendance by Member of Public Body

  Tuesday, August 01, 2023    Julie Tappendorf

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The Governor recently approved P.A. 103-311 that amends the Illinois Open Meetings Act to expand the permissible reasons for a member of a public body to attend a meeting electronically. 

Section 7 of the OMA currently authorizes a member of a public body to attend a meeting electronically if the public body has adopted a policy to authorize electronic attendance and the member's reason for attending electronically meets the statutory qualifications. Prior to this amendment, a member could attend electronically (if approved by the public body) if he or she was absent due to (1) personal illness or disability; (2) employment purposes or the business of the public body; or (3) a family or other emergency. With this recent OMA amendment, Section 7 of the OMA also authorizes a member of a public body to attend remotely if the absence is due to an "unexpected childcare obligation."

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Court Finds Criticism of Police Chief by Former Officer Not Actionable Under First Amendment

Court Finds Criticism of Police Chief by Former Officer Not Actionable Under First Amendment

  Monday, July 31, 2023    Julie Tappendorf

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A former police officer brought a lawsuit against the Police Chief alleging that his First Amendment rights were violated. The officer had raised concerns about the Chief's actions at a fire and police commission meeting and claimed that the Chief harassed and retaliated against him because of his protected speech. The district court dismissed the lawsuit, finding that the officer's criticism of the Chief was not First Amendment protected speech because he made those remarks in his role as a public employee and not a private citizen. The Seventh Circuit Court of Appeals agreed with the district court, holding that a First Amendment retaliation claim requires a showing that the challenged speech was constitutionally protected, which the officer could not demonstrate in this case because the officer's criticism of the Chief was made as a public employee and not actionable under the First Amendment. Fehlman v. Mankowski.

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Court Rules in Favor of School District in Impact Fee Dispute with Builder

Court Rules in Favor of School District in Impact Fee Dispute with Builder

  Thursday, July 27, 2023    Julie Tappendorf

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Like many other municipalities, the City of Sycamore has enacted an impact fee ordinance that requires subdividers and developers to pay a fee in lieu of school sites to be transmitted to the school districts. The school impact fee is imposed on new residential dwelling units and the amount of the fee is based on the number of bedrooms of the proposed dwelling unit. The school impact fees imposed by the City for single family dwelling units were $817 for a two-bedroom home; $3,269 for a three-bedroom home; $5,560 for a four-bedroom home; and $4,310 for a five-bedroom home.

A school district filed suit against a home builder alleging that the builder had misrepresented in its building permit applications the number of bedrooms for some of the residential dwellings in order to pay a lesser school impact fee, depriving the district of at least $66,649 in impact fees. The school district presented testimony that the builder had submitted building plans for a certain number of bedrooms but later added closets to rooms described as dens or offices to create additional bedrooms without paying the additional impact fee attributable to the modified home. 

The builder argued that some of the homes had been modified after permits had been issued but that the City (as collector of the impact fees) did not have a process in place to require the builder to supplement the impact fees. The builder also argued that the school district was applying the wrong definition of "bedroom," which the builder argued required an egress window, smoke detector, and a carbon monoxide detector to qualify as a bedroom, as required by the City's building codes.

The trial court ruled in favor of the school district on its argument that the developer was required to pay impact fees for bedrooms that were "designed and ultimately used principally or primarily for sleeping purposes," applying the definition of bedroom contained in the City's Unified Development Ordinance. The court also rejected the builder's argument that the school improperly deposited the school impact fees. Board of Ed. of Sycamore v. Silverthorne Dev't

The builder appealed and the Appellate Court upheld the ruling in favor of the school district. First, the Court held that the proper definition of bedroom is the one contained in the City's UDO, which is where the impact fee regulations were contained. The UDO focuses on the residential uses and the need for adequate school facilities rather than the building code which focuses on building safety. Applying the UDO definition of bedroom, the Court held that the testimony and evidence supported the school district's argument that the rooms at issue (described in the building permit application as a den/office with a closet added later) were designed to be used principally or primarily for sleeping purposes. The Court also upheld the trial court's ruling that the school district did not improperly deposit impact fees into the wrong fund, determining that the state statute authorizing impact fees does not require school impact fees to be deposited into a special fund, just that the fees only be used for proper purposes as set out in the statute. In sum, the Court upheld the ruling in favor of the school district.

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Appellate Court Upholds Finding that Disputed Road was a Public Road

Appellate Court Upholds Finding that Disputed Road was a Public Road

  Wednesday, July 26, 2023    Julie Tappendorf

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An Appellate Court recently resolved a dispute as to whether a roadway was a private driveway (as claimed by the owner of property on both sides of the road) or a public roadway (as claimed by the county and an intervening party who argued the road provided access to other property, upholding the trial court's ruling that the roadway was a public road. Hicks v. Pope County Board

After the county informed the plaintiffs that they had to remove certain obstructions from the roadway, the plaintiffs filed suit to ask the trial court to declare the roadway as a private driveway. The county presented evidence to support its argument that it was a public road, including the county plat book, topographical maps, traffic maps, highway maps, and various other records to support its argument that the road was, in fact, public. The county also presented witnesses who testified that they had used the road for decades until the plaintiffs obstructed it. The plaintiffs testified that they had maintained the road since they moved to the property and had improved it from a dirt road to a gravel road at their expense. The trial court held that the evidence supported the county's argument that the road was public prior to the plaintiffs moving to their property and ruled in favor of the county. The plaintiffs appealed and the Appellate Court upheld the ruling in favor of the county that the road was public.

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7th Circuit Upholds Dismissal of Unsuccessful Candidate's Civil Rights Lawsuit

7th Circuit Upholds Dismissal of Unsuccessful Candidate's Civil Rights Lawsuit

  Tuesday, July 25, 2023    Julie Tappendorf

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The Seventh Circuit Court of Appeals recently upheld the dismissal of a lawsuit filed by a candidate for a States Attorney office against various public officials claiming that their actions violated his civil rights. Reardon v. Danley et al.

Reardon ran for States Attorney in Coles County against the incumbent, one of the defendants. After he lost the election, he filed a lawsuit that included the following claims: (1) seeking an injunction against the release of certain Facebook account information that was the subject of a subpoena issued by the Mattoon Police Department, which subpoena had been upheld by a circuit court judge; (2) that a county board member violated his First Amendment rights by removing one of his campaign signs from a resident's lawn a few weeks before the election; and (3) that the Police Chief and City violated his First Amendment rights when the Chief endorsed his opponent on the City's Facebook page.

The Court of Appeals rejected all of Reardon's claims and upheld the district court's dismissal of his case. First, the Court held that injunctive relief was not an appropriate civil rights remedy to stop the release of the subpoenaed records. Second, the Court held that Reardon failed to demonstrate how the county board member was acting under any authority of the county or in furtherance of his county board member role when he removed the campaign sign. Finally, the Court held that Reardon failed to show how the Chief's Facebook post violated any of his constitutional rights. 

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Appellate Court Upholds $1.7 Million in Fines for Violations of Municipal Codes

Appellate Court Upholds $1.7 Million in Fines for Violations of Municipal Codes

  Monday, July 24, 2023    Julie Tappendorf

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An Illinois Appellate Court recently upheld a municipality's imposition of fines against property owners for certain ordinance violations relating to six accessory structures on the owners' property, including a tree house, shed, dog house/chicken coop, gazebo, detached garage, and covered patio. The municipality brought an ordinance enforcement action against he owners for failure to obtain permits for the structures, violations of building and electrical codes, setback encroachments, height violations, and the illegal keeping of chickens on the property. The trial court found in favor of the municipality and imposed fines of $100/day the violations had continued on the property ($100 was the minimum fine in the municipal code) for 20 continuing code violations on the property in the total amount of $1,766,000. 

The owners appealed, claiming the fines were excessive in violation of the Eighth Amendment to the U.S. Constitution and that the evidence presented by the municipality was insufficient to support the fines. On appeal, the Appellate Court rejected the owners' excessive fines claim. The Court acknowledged that the fine was large but noted that it was calculated based on 20 separate code violations which remained unabated for a lengthy period of time (from 2018 to 2021). Second, the Court determined that the evidence presented before the multiple hearings conducted by the trial court sufficiently demonstrated the owners' continuing violations of municipal codes up to November 4, 2021, although the Court did reduce the fine for the period of November 4, 2021 to December 30, 2021. In sum, the Appellate Court upheld the $1,766,000 fine that was imposed by the trial court, but reduced the fine by $5,600. City of South Beloit v. Casique, et al.

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PAC Upholds Denial of Police Reports Involving Both Juvenile and Adult Arrests

PAC Upholds Denial of Police Reports Involving Both Juvenile and Adult Arrests

  Thursday, July 20, 2023    Julie Tappendorf

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The PAC issued its tenth binding opinion for 2023 finding a public body did not violate FOIA in withholding arrest report in its entirety that involved a minor arrestee even though the report also included information about an adult arrestee. PAC Op. 23-010

The public body had denied a FOIA request filed by a reporter for certain police records and withhold the reports in their entirety, citing the Juvenile Court Record Act which protects the confidentiality of minors who have been arrested. The requester filed a request for review with the PAC, arguing that the police report should have been released with redactions since the report also involved an adult arrestee who was not protected under the JCRA. 

The PAC reviewed the JCRA and found that it protected the police reports from release because they constituted "juvenile law enforcement records" under the JCRA since they concerned the investigation of multiple minors and charges against one of the minors. The PAC stated that the JCRA "does not permit disclosure of any portion of the report to an unauthorized party, regardless of the extent to which a portion of the report focuses on an adult arrestee." The PAC also noted that the public body had released other information about the adult arrestee, including the arrest information sheet, arrest card, and mugshot report. 

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Illinois Supreme Court Rules on Constitutionality of Challenged Provisions of the SAFE-T Act

Illinois Supreme Court Rules on Constitutionality of Challenged Provisions of the SAFE-T Act

  Wednesday, July 19, 2023    Julie Tappendorf

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We previously reported on the SAFE-T Act that modified Illinois state statutes in a number of ways, including provisions regarding cash bail and pretrial release. The Safety, Accountability, Fairness, and Equity Today Act (Act) was enacted by P.A. 101-652, as amended by P.A. 102-1104. As many of you may recall, the constitutionality of the Act was challenged in a Kankakee County circuit court and last December, the circuit court held that certain provisions of the Act violated the Illinois Constitution's bail clause, the crime victims clause, and the separation of powers clause. The State appealed the circuit court's order, and the Illinois Supreme Court issued a ruling today reversing that order, vacating the circuit court's stay effective September 18, 2023, and directing circuit courts to conduct hearings consistent with the Act and Illinois Supreme Court rules implementing the new pretrial release provisions of the Act. 

The Illinois Supreme Court's rationale for reversing the circuit court's order is set out in its opinion, but the crux of the ruling is the Court's rejection of the argument that the Illinois Constitution mandates that monetary bail is the only means to ensure criminal defendants appear for trials or the only means to protect the public. The Court emphasized that the Illinois Constitution creates a balance between the individual rights of defendants and individual rights of crime victims, holding that the Act's pretrial release provisions include procedures that balance those rights. Rowe v. Raoul, 2023 IL 129248.

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Court Upholds Denial of PSEBA Benefits to Firefighter

Court Upholds Denial of PSEBA Benefits to Firefighter

  Tuesday, July 18, 2023    Julie Tappendorf

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After a firefighter/paramedic was granted an on-duty disability pension for a back injury, he applied for benefits under the Public Safety Employee Benefits Act (PSEBA), which provides health insurance benefits for police officers and firefighters who are catastrophically injured in the line of duty. After a hearing on the application, the Village denied the PSEBA benefits, finding that although the firefighter was injured on duty, the circumstances of his injury did not meet the requirements of PSEBA that the injury occurred as the result of a response to an emergency. The firefighter appealed to the Illinois Appellate Court which upheld the Village's denial of PSEBA benefits.

The firefighter had argued that he was injured when he slipped on ice stepping out of an ambulance at an emergency call. The Village, on the other hand, claimed his injury occurred later in the day, after he had returned to the station, when he was trying to start a chainsaw and moving heavy tools. The Appellate Court reviewed the evidence submitted before the Village's hearing examiner and determined that the evidence supported the Village's decision to deny PSEBA benefits. First, there was no corroborating evidence that the firefighter reported the ice incident to a supervisor. Second, there were no eyewitnesses to the ice incident. Third, none of the incident reports for that day reference the ice incident; instead, all of the reports discussed the chain saw and tool incident as causing his back injury. The Court concluded that the hearing examiner's analysis of the evidence and application of the PSEBA test in reaching his decision was not arbitrary and his decision to deny benefits was not unreasonable. Thomsen v. Village of Bolingbrook

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Court Rules in Favor of Village on Neighbor Zoning Lawsuit

Court Rules in Favor of Village on Neighbor Zoning Lawsuit

  Friday, July 14, 2023    Julie Tappendorf

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The Illinois Appellate Court recently ruled in favor of a municipality in a lawsuit filed by property owners challenging the Village's approval of rezoning and a PUD for a newly annexed development. Lys v. Village of Mettawa, 2023 IL App (2d) 220255-U.

The Village had annexed 170 acres of land that had been developed in unincorporated Lake County as a corporate headquarters. The annexation ordinance included certain provisions regarding the company's ability to continue operation as it did in the County with certain restrictions on future development that would require Village zoning relief. Three months after annexation, the company filed an application for rezoning of the property to the O-H "office/hotel district" and approval of a planned unit development for the existing uses. The Village conducted public hearings on the rezoning and PUD request and the request was ultimately approved.

The plaintiffs (neighboring residents) filed a three count complaint shortly after the zoning request was approved, claiming that the zoning approval violated their due process rights, among other claims. The trial court ruled in favor of the Village on the due process counts. A count against the property owner regarding certain fencing remained pending. The plaintiffs appealed the ruling in favor of the Village on the due process claims.

The Appellate Court also rejected the plaintiffs' due process claims finding that there was no evidence of procedural irregularities in the zoning process and that the rezoning approval ordinance had a presumption of validity. The Court noted that the plaintiffs acknowledge they received notice of the hearings and were given an opportunity to be heard at multiple hearings and meetings. The Court also rejected their argument that the negotiations between the Village and property owner constituted "contract zoning" or were improper secret meetings, finding no factual basis to support that argument. Instead, the Court found the zoning approval to be an example of valid conditional zoning that was approved after public hearings. The Court also rejected the plaintiffs' LaSalle Factors substantive due process argument, finding that the record overwhelmingly showed that the Village had a reasoned, rational basis for rezoning the property and did not act arbitrarily in approving the rezoning request. As a result, all claims against the Village were resolved in the Village's favor.

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