Month: May 2012

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.