Timothy J. Clifton

Thursday, May 4th, 2017

Stop the Mining!

Last week, the Third District Appellate Court allowed 13 land owners to proceed with their lawsuit against the Village of North Utica (“Village”) and Aramoni, a mining company. The Circuit Court had previously dismissed a three-count complaint against the Village and Aramoni based on the failure to state a cause of action.

In August 2013, Aramoni, a sand mining company, petitioned the Village to annex certain property to allow the land to be used for a silica sand mine. Despite a recommendation from the Village’s Planning Commission to deny the proposed annexation and special use, the Village Board of Trustees voted to approve the annexation agreement and special use. Specifically, the Village allowed Aramoni to operate a silica sand mine seven days a week and to conduct blasts during daylight hours Monday through Friday. Further, the Annexation Agreement provided that Aramoni’s operation of the mine would not constitute a nuisance under the Village ordinance.

The Plaintiffs consisted of 13 owners of land in LaSalle County near the land proposed to be used as the sand mine. The Complaint alleged that in adopting the mining ordinances the Village violated the land owners’ substantive due process rights, violated the Equal Protection clause of the Constitution, and was a prospective nuisance. The Circuit Court found that the Plaintiffs had standing to sue due to owning land in proximity to the threatened harmful action. However, the Circuit Court further found that they had failed to state a cause of action for a violation of their rights under the Constitution or for a prospective nuisance.

On review, the Third District found that at this stage of the litigation, the Plaintiffs had alleged sufficient facts to establish a violation of their substantive due process rights and a prospective nuisance.

As it pertained to their due process rights, the Third District held that the factual allegations in the Complaint were sufficient to satisfy the precedential LaSalle and Living Word factors and demonstrated a potential deprivation of the Plaintiff’s property interest in an arbitrary, unreasonable, or capricious manner.

With regard to the prospective nuisance, in order to meet their burden, the Plaintiffs were required to allege that the defendant had engaged in a hazardous act which seriously and imminently threatened the public health. In allowing the Plaintiffs to proceed on their prospective nuisance claim, the Third District found that they had alleged sufficient facts of a likely nuisance. Interestingly, the Third District specifically noted the fact that the Village allowed Aramoni to mine 24 hours a day, seven days per week and to use explosive devices during daylight hours in finding the likelihood of a prospective nuisance.

At this point, the Court merely found that the Plaintiffs alleged sufficient facts to proceed with the lawsuit. We will continue to monitor and report on this case and the impact it may have on municipalities going forward.


Timothy J. Clifton

Author: Timothy J. Clifton

Wednesday, October 12th, 2016

Appellate Court Finds No Private Right of Action for Non-Conforming Use

The Second District recently found that Section 11-13-25 of the Illinois Municipal Code does not create a private right of action for a landowner against a municipality.  In Conaghan v. City of Harvard, a City of Harvard resident sued the City, its Planning and Zoning Commission, and its City Council challenging the City Council’s ordinance denying the resident’s petition to allow for the continued use of his property as a multifamily residence.

In Conaghan, the resident rented out the property to tenants on two separate floors as a legal nonconforming use.  The property was rendered uninhabitable and the resident hired a contractor to fix the property.  Ultimately the permit lapsed and the property remained vacant for more than a year.  At that time, the City zoning officer found that the prior multifamily use had been discontinued as defined by the City of Harvard Ordinance (discontinuance of a non-conforming use for a period of 12 months) and that the property could only be used as a single family residence.  A petition to maintain the multifamily use was denied by the Planning and Zoning Commission.  Subsequently, the City Council passed an ordinance denying the request.

In the complaint, the resident alleges that the denial of the petition was improper because they had not discontinued the use nor shown a clear intent to do so.  The complaint was brought under Section 11-13-25 of the Illinois Municipal Code which reads:

(a) Any decision by the corporate authorities of any municipality … in regard to any petition or application for a special use, variance, rezoning, or other amendment to a zoning ordinance shall be subject to de novo judicial review as a legislative decision, regardless of whether the process in relation thereto is considered administrative for other purposes.  Any action seeking the judicial review of such a decision shall be commenced not later than 90 days after the date of the decision.

The Defendants moved to dismiss the complaint on the basis that Section 11-13-25 does not provide a private right of action to challenge a municipal zoning decision.

On appeal, the issue was whether Section 11-13-25 created a private right of action against a municipality.  The Section District held that Section 11-13-25 does not create a private right of action against a municipality by itself.  Rather, the Section “provides not for review de novo but for a hearing de novo in a case that is properly before the court on some other established basis.”  Essentially, the Section allows the parties to offer new and/or additional evidence than that which was offered at the earlier proceeding.  Put differently, Section 11-13-25 changes the rules for judicial review of zoning decisions (by allowing for new and/or additional evidence), but does not expand the availability of judicial review.

While reversing the Circuit Court’s judgment in favor of the resident, the Court noted that it is offering no opinion on whether the resident could have brought their action subject to something else.

We will keep you posted as to any future developments in this case moving forward.


Timothy J. Clifton

Author: Timothy J. Clifton

Thursday, August 18th, 2016

New Rules for Travel Expense Reimbursement

As a result of a new law effective January 1, 2017, certain local government officials will have new rules and limitations on reimbursement of travel, meal and lodging expenses. Every local public agency affected by this legislation will need to have regulations in place no later than June 30, 2017, but it is our recommendation that those regulations be in place no later than the start of 2017 due to other requirements contained in the new legislation which are outlined below.

Public Act 099-0604 applies to school districts, community college districts and non-home rule units of local government. The act requires that by June 30, 2017, all local public agencies (as defined in the prior sentence) must pass regulations for the reimbursement of travel, meal and lodging expenses of officers, employees and members of the corporate authorities of the local public agency.

Specifically, the regulation must: (1) establish the types of official business for which expenses are allowed; (2) provide the maximum allowable reimbursement for the expenses; and (3) establish a standardized form for submission of the supporting documentation for the claimed expenses.

Further, the Act requires that as of March 2, 2017, any expenses for travel, meals and lodging for any officer/employee/member of corporate authorities which exceeds the maximum allowed under the regulations adopted by the local public agency may only be approved by roll call vote at an open meeting of the corporate authorities of the local public agency.

Ironically, the Act requires compliance with the regulations prior to actually requiring the local public agencies to adopt said regulations, but that is an article on a whole different topic.

In addition to restrictions and limitations on the reimbursement of travel, meal and lodging expenses of local government officials, the Act also provides that “[n]o local public agency may reimburse any governing board member, employee, or officer for any entertainment expense.”  The Act provides that “entertainment” includes activities such as shows, sporting events or “any other place of public or private entertainment or amusement, unless ancillary to the purpose of the program or event.”  Obviously, the argument there will be over whether or not the “entertainment” is “ancillary to the purpose of the program or event.”

Given the specific requirements contained in Public Act 099-0604, please be sure to contact your legal counsel for guidance on how to implement and apply the necessary regulations.


Timothy J. Clifton

Author: Timothy J. Clifton

Thursday, April 14th, 2016

Easier Path to Home Rule Status?

The Illinois Municipal League is promoting a bill that would significantly increase the number of home rule municipalities within the State of Illinois. Currently, there are two ways in which a municipality becomes “home rule”:

  • when the municipality has more than 25,000 residents
  • when the municipality has 25,000 residents or less, by a majority vote of the residents at a local referendum.

Under bill HJRCA 38, any municipality with a population in excess of 5,000 would automatically become home rule. According to the IML, this would increase the number of home rule municipalities by 173.

Municipalities would still have the option to “opt out” of home rule status by way of a referendum.

The obvious benefit to these municipalities would be the greater ability to deal with various problems within their community without being limited by powers expressly granted to them as non-home rule communities are.

The bill was referred to the Rules Committee back in May 2015. We will continue to monitor the status of this bill and keep you posted of any new developments.


Timothy J. Clifton

Author: Timothy J. Clifton

Wednesday, January 20th, 2016

Panhandling Ordinances Remain Controversial

In January 2014, the Springfield, Missouri, City Council passed an amended panhandling ordinance. In December 2015, an individual filed a federal lawsuit against the City claiming that the ordinance was not being properly applied. Ultimately, in mid-December, a Federal Judge issued an injunction prohibiting enforcement of the ordinance.

Since that time, the City’s prosecutor has dismissed all pending citations under the ordinances and has declined to file any new citations.

Springfield’s ordinance attempted to limit panhandling to passive panhandling and also placed restrictions on where panhandling was expressly prohibited (i.e., within 5 feet from the curb of roadways, etc.).

The federal lawsuit claims that the City has not been applying the ordinance correctly and, specifically, alleges that the plaintiff was threatened with a ticket when he tried to passively panhandle.

The ongoing debate, in regards to these panhandling ordinances, is the argument between free speech and the safety and comfort of residents out in public.

This will be another case to monitor (similar to the situation playing out with regard to the Springfield, Illinois, panhandling ordinance) to see how the courts handle a panhandling ordinance, and to potentially shape panhandling ordinances moving forward.


Timothy J. Clifton

Author: Timothy J. Clifton

Thursday, December 10th, 2015

Key Employees Still Overtime Exempt?

In the summer of 2015, the Department of Labor (“DOL”) indicated proposed changes to the Fair Labor Standards Act (“FLSA”) concerning overtime exemption regulations. Specifically, the DOL proposed doubling the minimum salary requirement for an employee to be exempt from overtime pay. Currently, the minimum salary requirement is $455 of earnings per week. The proposed changes would double the minimum salary requirement to $970 of earnings per week. Further, the proposed changes contemplate automatically updating the minimum salary requirement each year based upon a certain percentile (40%) of earnings of all full-time salaried workers.

The obvious impact of the proposed changes is the likelihood of more employees, despite being salaried, being eligible for overtime pay. As a result, employers will need to be cognizant of the exempt earnings amount on a continuing annual basis (as it would be adjusted each year) for their salaried employees to be sure they do not run afoul of the FLSA regulations.

At the present time, there is no specific timetable for when and if these rules will go into effect.  The Wall Street Journal has speculated, based upon comments by Solicitor of Labor Patricia Smith, that final regulations would not be issued until late 2016.

We will keep you posted on any updates when and if they become available.


Timothy J. Clifton

Author: Timothy J. Clifton

Friday, December 12th, 2014

New Relief for Local Governments in Responding to FOIA Requests

The Illinois Legislature recently voted to override Governor Quinn’s veto of HB3796, which went into effect immediately (Dec. 3, 2014). This bill offers two different types of relief to units of local government in responding to Freedom of Information Act (“FOIA”) requests: (1) new voluminous request procedures; and (2) use of information posted on a local government website to respond to requests.

The primary benefit of HB3796 is intended to help units of local government deal with “voluminous requests.” A request is deemed to be a “voluminous request” if: (1) it includes more than 5 individual requests for more than 5 different categories of records; (2) it includes a combination of individual requests that total requests for more than 5 different categories of records within a period of 20 business days; or (3) it requires the compilation of more than 500 pages of public records, unless a single request (i.e., one report, e-mail, etc.) alone exceeds 500 pages. Certain requests made by the media or non-profit entities are exempt from the definition of a “voluminous request.”

Upon receipt of a FOIA request deemed to be a “voluminous request,” the new Section 3.6 of FOIA governs a unit of local government’s response. In summary, upon a determination that a request qualifies as a “voluminous request,” a unit of local government must do the following: (1) Respond within 5 business days after receipt, and (2) the response must give various notices to the requester.

If, after offering the opportunity to amend the request, the request remains a “voluminous request,” a local government’s response must either: (1) include an estimate of the fees to be charged, which may be required to be paid prior to copying the documents; (2) deny the request if an appropriate exemption applies; (3) notify the requester it is unduly burdensome and provide an opportunity for the requester to attempt to reduce the request; or (4) provide the records requested.

It is important to be aware of what a “voluminous request” is and how to specifically deal with one should it be received. As laid out above, there are numerous nuances and procedures that need to be filed in order to be afforded the additional protection and fees provided by this amended FOIA.

In addition to the new safeguards surrounding “voluminous requests,” the amendment provides that units of local government do not need to “copy a public record that is published on the public body’s website.” In the event a request is received for records that are available on a local government’s website, the local government is only required to notify the requester that the public record is available online and direct them to the website where the record can be located. Please be aware that there is an exception for requesters who are “unable to reasonably access the record online after being directed to the website.” In this case, the unit of local government may be obligated to copy the record if the requester re-submits their request and states their inability to reasonably access the record.

In all, HB3796 is intended to provide additional relief to units of local government in responding to FOIA requests. It is important that you and your FOIA officer be well aware of the new changes and specifically of the procedures that need to be followed in order to be afforded these new protections.

If you have any questions or would like to discuss this in more detail, please call Timothy J. Clifton at (815) 459-2050.


Timothy J. Clifton

Author: Timothy J. Clifton

Thursday, August 14th, 2014

Phone in a Search Warrant?

The Illinois House recently passed a bill, which if approved, will allow police to obtain search warrants from a judge by phone and electronic transmission. Specifically, the bill calls for the amendment of 725 ILCS 5/108-4(c) (“Issuance of Search Warrant”) to allow search warrants to be issued upon sworn testimony communicated simultaneously via video and audio transmissions. While the bill is not an official law yet, the possibility of obtaining a search warrant without having to physically appear at the courthouse is likely appealing to all police departments because a search warrant can be obtained without having to invest the time and expense of traveling to the courthouse, especially since traveling to the courthouse may pull an officer off of active patrol or another important function. The standards and contents of the warrant are the same as with current warrant applications. Some interesting differences in the procedure include:

  • The application for the warrant is to be transmitted to the judge by fax, email or other reliable electronic means (or if transmission is impracticable, the contents can merely be read verbatim to the Judge);
  • If the Judge finds sufficient grounds for the issuance of the warrant, the requestor will sign the Judge’s name and enter on the face of the warrant the exact date and time when the warrant was to be issued (the Judge will also do the same on their copy).

The actual implementation of this bill and procedures to be followed will develop in the event this bill becomes a law. The bill was sent to the Governor’s office on June 20, 2014, and is currently awaiting his signature. We will keep you informed of any new developments regarding the status of this Bill.


Timothy J. Clifton Author: Timothy J. Clifton

Wednesday, June 18th, 2014

FOIA Above All

The Public Access Counselor recently released a binding opinion holding that settlement agreements entered into by units of local government that contain confidentiality or non-disclosure provisions are subject to FOIA, despite the confidentiality and/or non-disclosure provisions.  Ultimately, the PAC ruled that units of local government are required to turn over settlement agreements into which they enter.  However, the units of local government can still redact information in accordance with the exceptions found in Section 7 of the Act.

In the May 9, 2014 opinion, the PAC reviewed an appeal filed by a newspaper which had sought “all of the settlement agreements involving St. Clair County from Jan. 1, 2013 to the present.”  In response, St. Clair provided certain settlement agreements, but withheld an undisclosed number of agreements because the agreements contained confidentiality provisions and also contained “personal information” which the County believed to be exempt under Section 7(1)(c).

The PAC found that settlement agreements were clearly public records under FOIA pursuant to Section 2.20, which states “all settlement agreements entered into by or on behalf of a public body are public records subject to inspection and copying by the public provided that information exempt from disclosure under section 7 of FOIA may be redacted.”  In analyzing the County’s first argument against disclosure (confidentiality provisions within the agreement), the PAC found these provisions directly violated FOIA and as such they contravened public policy and were unenforceable.

The County’s next argument was premised upon the “personal privacy” exception of Section 7(1)(c) which allows for the withholding of documents (or redaction) where “the disclosure of information that is highly personal or objectionable to a reasonable person and in which the subject’s right to privacy outweighs any legitimate public interest in obtaining the information.”  Pursuant to the PAC’s in-camera review of the withheld documents, the PAC found that the withheld documents “do not include references to the specific allegations underlying the complaints that led to the settlement, the disclosure of which could potentially be embarrassing to the complainants.”

Based on the PAC’s analysis, the County was ordered to comply with the newspaper’s request by disclosing the requested settlement agreements immediately, subject to any permissible redaction of private information under Section 7(1)(b) of FOIA.

Given this ruling, units of local government need to be aware that the insertion of confidentiality or non-disclosure clauses in settlement agreements will not alone suffice to exempt an agreement from an FOIA request.


 

Timothy J. Clifton

Author: Timothy J. Clifton

Wednesday, June 4th, 2014

“Responsible Bidder” Legislation for Public Works Contracts

Legislation is pending with the Illinois Legislature that would require all public works contracts over a certain dollar amount to be eligible only to contractors and sub-contractors who are “responsible bidders” as defined by the legislation.  This legislation has potentially significant effects on the way units of local government and local businesses handle public works projects.

The proposed legislation (Senate Amendment 1 to HB 924) would create the “Illinois Responsible Bidder on Public Works Projects Act” which requires that all contractors and sub-contractors working on all local government public works projects be “responsible bidders.”  Under the Act, a “responsible bidder” must meet the following requirements: (1) comply with all laws to conduct business in Illinois; (2) comply with Prevailing Wage Act; (3) comply with Subchapter VI of Chapter 21 of Title 42 of United States Code and Federal Executive Order No. 11246; (4) have a valid Federal Employer Identification Number or Social Security number (if an individual); (5) have a valid certificate of insurance; (6) contractor and any sub-contractor must participate in apprenticeship and training programs approved by and registered with the U.S. Department of Labor’s Bureau of Apprenticeship and Training; (7) submit an affidavit stating that the bidder will maintain an Illinois office as the primary place of employment for those working on the project; and (8) agree to (or already have an existing contractual obligation to) maximize the use of apprentices on public works projects.

The requirements to become a “responsible bidder” are very involved and will likely result in numerous local businesses being unable to qualify for public works projects. The apprenticeship requirements alone may make individual or small contractors ineligible to bid on or compete for most public works contracts.

There is an exemption for public works contracts under a certain dollar amount  which would not be subject to the “responsible bidder” requirement.  The exemption threshold is contracts under $100,000 through June 30, 2016; under $50,000 through June 30, 2017; and under $20,000 thereafter.  Therefore, after June 2017, the exemption amount is projects costing under $20,000.

Units of local government and contractors that violate this requirement could face daily civil penalties ranging from $5,000 to $10,000 per day that a violation exists.

The Illinois Municipal League has strongly opposed this legislation since its inception due to the requirements being difficult if not impractical for many contractors and the potential for increased costs for units of local government.  This legislation is still in the preliminary phase, and we will keep you posted as further developments arise.


Timothy J. Clifton

Author: Timothy J. Clifton