Year: 2012

Nominating Petition Deadline Moved to December 26, 2012

Governor Signs Legislation

By Richard Joseph

richard.joseph@mhtlaw.com

As you may have been aware, the deadline for filing Nominating Petitions for the April 9, 2013 Consolidated Election was December 24, 2012.  This was causing great consternation amongst local governmental entities since it would require the public body to stay open until 5:00 p.m. on Christmas Eve to accept petitions.

Effective December 3, 2012, Governor Quinn signed Senate Bill 3338/Public Act 97-1134 which moves the deadline for filing Nominating Petitions for the April 9, 2013 Consolidated Election from December 24, 2012 to December 26, 2012.

This change eliminates the need for public offices to stay open until 5:00 p.m. on Christmas Eve.  The last day for filing Nominating Petitions is now December 26, 2012.  Offices where petitions are to be filed must remain open until 5:00 p.m. on that day in order to receive candidate petitions for the Consolidated Election in April 2013.

We suggest that the municipality note this date on its website and post the new date at the municipal office.

Duty to Post Compensation of Employees

Change to Open Meetings Act Requires Posting of Total Compensation Package

By Richard M. Joseph

richard.joseph@mhtlaw.com

At this time of the year, most municipalities are in the process of establishing budgets and appropriations for the 2012/2013 fiscal year and establishing salaries for municipal employees.

Due to a change in the Illinois Open Meetings Act (the “Act”) that took effect January 1, 2012, additional notification to the public is now required.  Section 7.3 of the Act imposes on each municipality participating in the Illinois Municipal Retirement Fund a duty to advise the public of the total compensation package of certain employees.

The Act provides that within six business days after an employer participating in the Illinois Municipal Retirement Fund approves a budget, that employer must post on its website the total compensation package for each employee having a total compensation package that exceeds $75,000 per year and that within six days before an employer participating in the Illinois Municipal Retirement Fund approves an employee’s total compensation package that is equal to or in excess of $150,000 per year, the employer must post on its website the total compensation package for that employee.

“Total compensation package” is defined in the Act to mean payment by the employer to the employee for salary, health insurance, a housing allowance, a vehicle allowance, a clothing allowance, bonuses, loans, vacation days granted, and sick days granted.  Thus, determination and valuation of benefits must be undertaken.  Municipalities, in determining the threshold, cannot simply rely upon salary determination.

If the municipality does not maintain a website, the municipality must post a physical copy of this information at the principal office of the municipality.  If a municipality does maintain a website, it may choose to post a physical copy of this information at its principal office in lieu of posting the information directly on the website; however, the municipality must post directions on the website on how to access that information.

 

Zoning Ordinances Cannot Impose a Substantial Burden on Religious Exercise

Churches Must Be on Equal Terms with Nonreligious Institutions

By Katherine Swise

katherine.swise@mhtlaw.com

Regulating land use through zoning ordinances is one of the most fundamental functions of municipal government.  However, recent federal court cases have highlighted the potential restrictions municipalities face when regulating land use as it applies to churches and other religious institutions.  The Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”) and its state counterpart, the Illinois Religious Freedom Restoration Act (“IRFRA”), are the two primary statutes that limit the power of local governments to regulate land use as it pertains to religious institutions.  These statutes restrict land use regulation in two primary ways.  First, a land use regulation may not impose a substantial burden on religious exercise unless it is the least restrictive means of furthering a compelling government interest.  Second, a land use regulation may not treat religious institutions on less than equal terms with nonreligious institutions.

Zoning Ordinances Cannot Impose a Substantial Burden on Religious Exercise

Both RLUIPA and IRFRA prohibit land use regulations that impose a substantial burden on religious exercise.  The IRFRA applies to both home rule and non-home rule municipalities.  Under these statutes, a land use regulation imposes a substantial burden where it renders religious exercise—including the use of land for the purpose of religious exercise—effectively impracticable.  Because these statutes are not intended to grant religious institutions immunity from land use regulations, courts have created a high threshold for demonstrating that a zoning ordinance imposes a substantial burden.   To show that a zoning ordinance imposes a substantial burden, a   religious institution will have to show that it is significantly oppressive.

Where the burden on a church or religious organization is no greater than it would be for any other landowner or developer, a court is unlikely to find that the burden is substantial.  Therefore, requiring a church to obtain a special use permit, including the procedural requirements and inherent cost of such a permit, is not a substantial burden.  Furthermore, the scarcity of available land in urban areas and the financial hardship associated with acquiring suitable land do not impose a substantial burden on religious exercise.

Even a land use regulation or zoning ordinance that does not impose a substantial burden on its face may impose a substantial burden if it is applied to religious institutions in an arbitrary or capricious manner.  If it appears that a municipality is targeting or discriminating against a particular religious group by denying special use permits, amending ordinances, or applying existing ordinances, then a court is likely to find that the regulation has imposed a substantial burden as applied to that institution.

If a court finds that a land use regulation imposes a substantial burden on religious exercise, then the municipality will have the burden of showing that the regulation is the least restrictive means of furthering a compelling government interest.  If a municipality can make such a showing, then the regulation can stand.  However, this is a very high burden to meet, and courts will be reluctant to find a compelling reason to substantially burden religious exercise.

Churches Must Be on Equal Terms with Nonreligious Institutions

RLUIPA prohibits local governments from imposing or implementing a land use regulation in a manner that treats religious institutions on less than equal terms with nonreligious institutions.  Note that there is no comparable provision in the IRFRA.  A land use regulation can violate the Equal Terms provision either where a zoning ordinance explicitly differentiates between religious and nonreligious institutions or where a neutral zoning ordinance is selectively enforced against religious institutions.

A land use regulation may not treat a religious institution less favorably than a nonreligious institution that is similarly situated with respect to objective zoning criteria.  In particular, an ordinance that treats religious institutions less favorably than similar secular uses such as membership organizations, cultural centers, community centers, and private clubs will likely be in violation of RLUIPA’s Equal Terms provision.  In a recent court case, a federal appeals court found that a city ordinance violated the Equal Terms provision where it permitted membership organizations in the city’s Old Town district as of right, but prohibited churches and other religious institutions.  This ordinance violated the Equal Terms provision because it explicitly excepted religious membership organizations while permitting nonreligious membership organizations.

Even where religious institutions are treated equally on the face of a zoning ordinance, a violation may occur where the ordinance is enforced unequally.  For example, a zoning ordinance that requires special use permits for religious institutions and similar nonreligious uses, such as community centers, is unlikely to offend RLUIPA’s Equal Terms provision on its own.  However, if it can be shown that the municipal zoning board consistently denies religious institutions special use permits, while consistently granting special use permits for similar nonreligious institutions, courts will likely find RLUIPA has been violated.  As with the Substantial Burden provision, if it appears that a municipality is intentionally excluding or discriminating against a religious institution (or religious institutions in general), courts are likely to find that a land use regulation violates the law.

Other Considerations

In addition to the statutory limitations imposed by RLUIPA and IRFRA, there are several provisions of the United States and Illinois Constitutions that may be implicated when a municipality regulates the location of churches and religious institutions within its boundaries, or when a municipality decides to deny a church or religious institution a special use permit.  Specifically, land use regulations may infringe on a religious institution’s right to equal protection of laws, free speech, and free exercise of religion.  Thus, it is important to keep these provisions, as well as RLUIPA and IRFRA, in mind when creating or amending a municipal zoning ordinance, and when applying existing zoning regulations to churches and other religious institutions.

What happens when a Board/Council member stops attending meetings or orally resigns?

By Joshua D. Herman

joshua.herman@mhtlaw.com

There will come a time for every body of local government that leads someone to ask: “What about Bob?” Maybe Bob is an elected alderman or trustee who has not come to a meeting in three months.  Maybe he is the elected official who orally announced his resignation at that last, politically-charged meeting. He may have been battling an illness, preventing him from attending meetings. Regardless of the reason, the uncertainty that results from such a vacancy can have significant consequences, such as whether a quorum is present or determining whether governmental actions are at risk of later being declared invalid.

This article addresses how municipalities may approach potential vacancies in office caused by oral resignations and abandonment, both to provide certainty and to comply with the law.

Oral Resignations are Invalid

Unfortunately, not every action taken by local government is welcome by both sides of a contentious issue. While rare, such meetings may even end in an elected official orally announcing his resignation. Other reasons may cause an official to offer his resignation, such as an illness or a new job that requires the official to move. Regardless of an official’s reasons for resigning, oral resignations are not valid under Illinois law.

Instead, to be effective, an elected official’s resignation must be written, signed, and notarized. A resignation that does not meet these three requirements is insufficient under Illinois law.

A resignation may be either conditional or unconditional. With an unconditional resignation, the elected official may specify a future date on which it will become effective. That date cannot be more than 60 days after the date the resignation is received by the officer authorized to fill the vacancy, who is usually the mayor or president.  A resignation that does not specify an effective date is effective when received by the officer authorized to fill the vacancy.

A conditional resignation is not effective until the specified conditional event occurs. Such a resignation may be withdrawn at any time prior to the occurrence of that event. If the event occurs, a conditional resignation is effective when the event occurs or the officer authorized to fill the vacancy receives the resignation, whichever is later.

Because all resignations must be received by the officer authorized to fill the vacancy, a municipal clerk must forward a certified copy of a resignation to such an officer within 7 days of its receipt.

Considering the above, a municipality that receives only an oral resignation should attempt to have the official provide a written resignation that is signed and notarized. Until such a resignation is provided, the official has not resigned. If the official does not cooperate with such a request, the board or council may pursue proceedings to determine whether the official has abandoned his office, thereby creating a vacancy.

Abandonment of Office

Unfortunately, a board or council is not always alerted to a potential vacancy by an officer’s resignation. Sometimes, an officer just stops coming to meetings. Fortunately, Illinois law empowers local governments to determine that a vacancy has occurred by abandonment, enabling that vacancy to be filled. Whether an absent officer has abandoned his office is a question that depends on the unique facts of the situation.  It is a sound practice for a municipality facing a potential abandonment to follow a procedure that explores the facts related to the potential abandonment to provide a basis for any decision it makes in this regard.

Many factors will determine whether an office has been abandoned, such as the official’s intent to abandon or the official’s ability to continue to serve in the elected office. Because there are many variables, a two-step process should be used to determine whether abandonment has occurred to overcome possible challenges such a determination may face.

First, the body may pass a resolution that identifies the possible abandonment and schedules a hearing to receive facts related to the abandonment. The resolution should also provide that the official at issue be notified of the hearing and should explain the procedure that will be used and the official’s rights (such as legal counsel, the opportunity to present evidence, etc.).

The next step is to hold the hearing to make a determination as to abandonment. At a minimum, the hearing should consist of the presentation of evidence that suggests the office has been abandoned. If the official in question is present, he/she should also be given an opportunity to present evidence and/or question any witnesses that testify.  Following the presentation of evidence, the body should deliberate before passing a resolution that makes a finding with respect to abandonment and contains a factual basis supporting that finding.

A vacancy in office exists on the date the corporate authorities determine that a vacancy by abandonment has occurred.

After a determination of vacancy, the mayor or president may proceed to take the appropriate steps to fill the vacancy.

Following the foregoing process should enable local governments to address the questions that arise in the face of potential vacancies while reducing the risk of challenge to the legitimacy of such actions, or any action taken by the government thereafter.

New Rules for Ordinance Violations

New Supreme Court Rules require review and updating of ordinances

By Joshua D. Herman

joshua.herman@mhtlaw.com

On December 7, 2011, new Illinois Supreme Court Rules (“Rules”) governing ordinance violations went into effect.  These new Rules address many issues a municipality faces when dealing with ordinance violations. The Rules clarify how a municipality may initiate ordinance prosecutions and address ways a municipality may resolve violations outside of court. Importantly, the new Rules also clarify that municipalities can request the court order remedies beyond just fines, potentially including an order to remedy violations or to prohibit future violations.

Municipalities should review their ordinances to ensure they are both up to date and drafted to take full advantage of (and comply with) the new Rules.  This article briefly addresses some of the more important changes and suggests where municipalities should begin their review.

Initiating Ordinance Prosecutions

Prior to the new Rules, most municipalities initiated ordinance violations through their police force (if they have one) or attorney. The new Rules clarify that a municipality may also initiate actions through certified mail and by personal service from a code enforcement officer. Allowing service by code enforcement officers can allow more efficient enforcement by allowing individuals most involved with an issue to pursue it. For example, building safety inspectors may issue tickets for property/building code violations, or animal control officers may ticket for animal violations, etc..

Alternatives to Court

Many municipalities resolve violations without resorting to court action. The new Rules clarify that while this is allowed, the manner and time limits to settling such matters must be provided for in the ordinance.

Limit Court Discretion

For municipalities that use court actions to resolve ordinance violations, the new Rules require courts to impose the minimum fine provided for by ordinance. This prevents the possibility of a court finding in the municipality’s favor, but imposing only a de minimis fine, such as $1.00.  To take advantage of this Rule, an ordinance must explicitly state the minimum fine.

Remedies other than fines

Until now, ordinance prosecutions have largely focused on fining violators. In addition to fines, the Rules also permit municipalities to request other appropriate relief, which may potentially include remunerating victims, remedying violations, or prohibiting future violations. To pursue such remedies in court, the relevant ordinance(s) must explicitly permit those remedies.

Other Considerations

In addition to expanding the ways in which a municipality may pursue fines or other relief for ordinance violations, the new Rules also impose additional requirements related to notifications of violators. These new procedural requirements require municipalities to review their own approaches to prosecution to ensure judgments obtained against violators are enforceable. At the very least, legal counsel should review the notifications provided to violators to ensure the municipality is complying with the new Rules’ requirements.

In light of these Rules, municipalities should review their codes to ensure they maximize the ways in which ordinance violations may be addressed. All municipalities should ensure that they have a general, catch-all ordinance that provides for minimum fines and settlement of ordinance violations without resorting to a court action.  Although requiring a review of a municipality’s code, the Rules are a valuable addition to any municipality desiring greater control and options in dealing with violators.