Year: 2015

Jeffrey Krumpe helps to solidify mechanic’s lien rights of architects, engineers, and surveyors

Jeffrey Krumpe recently participated in a successful appeal to the Illinois Supreme Court, which solidified the mechanic’s lien rights of architects, engineers, and surveyors. Agreeing with Mr. Krumpe’s client, a unanimous Supreme Court held that those design professionals who perform any service for the purpose of improving real property (even when actual construction does not proceed) are entitled to assert a mechanics lien.

The Supreme Court’s opinion can be found here.

An article discussing the case, can be found on the Illinois Bar Association’s web site by clicking here.

Administrative Enforcement of Code Violations

Non-home rule municipalities may now enforce administrative orders in the same manner as judicial orders

By Katherine Swise

Many municipalities prosecute ordinance violations through an administrative procedure in order to avoid the costs associated with court proceedings.  However, until recently, non-home rule municipalities were still required to commence proceedings in circuit court in order to enforce sanctions imposed pursuant to an administrative procedure.  Fortunately, the Illinois Municipal Code was amended in August of 2015 by Public Act 99-293 to give non-home rule municipalities greater options and authority to enforce administrative judgments for ordinance violations.  As a result, non-home rule municipalities are no longer required to commence proceedings in court to enforce administrative orders with regard to ordinance violations.

The Illinois Municipal Code authorizes non-home rule municipalities to establish a code hearing department to adjudicate municipal ordinance violations, with the exception of building code violations (which must be adjudicated pursuant to 65 ILCS 5/11-31.1-1 et seq.), offenses under the Illinois Vehicle Code, and similar traffic regulations governing the movement of vehicles.  Following a hearing as provided for in Article 1, Division 2.2 of the Municipal Code, a hearing officer makes a written determination whether an ordinance violation exists, known as the findings, decision, and order (“Administrative Order”).  The Administrative Order includes 1) the hearing officer’s findings of fact; 2) a decision of whether or not a code violation exists based on those findings of fact; and 3) an order stating the sanctions imposed against the violator (or dismissing the case, if no violation is found).  The Administrative Order is subject to administrative review in the circuit court of the county in which the municipality is located.

Prior to Public Act 99-293, a non-home rule municipality had to commence a proceeding in circuit court in order to obtain a judgment on the Administrative Order entered by the hearing officer.  Commencing a proceeding in circuit court requires filing a certified copy of the Administrative Order, along with a certification reciting facts sufficient to show that the Administrative Order was issued in accordance with the requirements of the Municipal Code with regard to administrative hearings and the applicable municipal ordinance.  A summons must be issued and served as provided in the Code of Civil Procedure, or, if the total fines and costs imposed by the Administrative Order is less than $2500, by certified mail, return receipt requested.  If the court finds that the Administrative Order was entered in accordance with the requirements of the Municipal Code and the applicable municipal ordinance, and that the defendant had an opportunity for a hearing on the ordinance violation and an opportunity for judicial review of the hearing officer’s decision, then the court renders judgment in favor of the municipality for the amount indicated in the Administrative Order, plus costs.

With the enactment of Public Act 99-293, non-home rule municipalities now have another option for enforcement of the Administrative Order entered by the hearing officer.  A municipality may still use the judicial proceedings described above; however, amendments to Section 1-2.2-55 of the Municipal Code now authorize non-home rule municipalities to enforce the findings, decision, and order of an administrative hearing officer in the same manner as a judgment entered by a court.  Further, where a defendant has failed to comply with a judgment ordering correction of a code violation or imposing fines or other sanctions, any expenses incurred by the municipality to enforce the judgment, including attorney’s fees, whether fixed by a court of competent jurisdiction or a hearing officer, are a debt due and owing the municipality and may be collected in accordance with applicable law.  The defendant must be given an opportunity for a hearing on expenses before they can be fixed by a hearing officer.  The municipality may also record a lien against any real estate of the defendant in the amount of the debt due and owing, which may be enforced in the same manner as a judgment lien pursuant to a judgment entered by a court.

Finally, the amendments to the Municipal Code under Public Act 99-293 authorize a hearing officer to set aside any default judgment upon good cause shown and set a new hearing date if the defendant petitions the hearing officer within 21 days after the issuance of the default order.  If a default judgment is set aside, the hearing officer also has the authority to enter an order extinguishing any lien recorded for debt due and owing the municipality as a result of the vacated default judgment.

The amendments to the Municipal Code enacted by Public Act 99-293 give non-home rule municipalities greater flexibility and authorization to enforce fines and other sanctions entered against defendants pursuant to an administrative code enforcement procedure.  Non-home rule municipalities who currently use an administrative procedure for code enforcement should consult their municipal attorneys about revising their ordinances to provide for entry and enforcement of administrative judgments under these amendments. Additionally, non-home rule municipalities who have not previously adopted administrative code enforcement procedures may consider implementing such procedures, now that they may be enforced without the time and expense of filing proceedings in circuit court.

 

School Districts Must Comply with Zoning

Municipal zoning ordinances govern school district construction on school property

By Joshua D. Herman

joshua.herman@mhtlaw.com

On September 24, 2015, the Illinois Supreme Court held in the case of Gurba v. Community High School Dist. No. 155, 2015 IL 118332, that a school district’s construction and use of school property is subject to municipal zoning ordinances. Prior to Gurba, school districts often acted as if they were exempt from local zoning ordinances, resulting in frequent disputes between municipalities and school districts within their territories. This article briefly summarizes the facts and law addressed by Gurba to assist the reader in evaluating the application of zoning ordinances to school district actions.

The Facts of Gurba

This case involves Crystal Lake South High School (the “School”), which is located in an area zoned “R-2 residential single family,” in the City of Crystal Lake (the “City”), a municipal corporation with home rule authority. The School is a legal, non-conforming use. The Board of Education of Community High School District No. 155 (the “Board”) decided to replace the School’s football stadium bleachers, planning to switch the locations of the home and visiting bleachers. This change placed the new, larger and higher home bleachers closer to the property lines of abutting residences. Prior to construction, the Board applied to the McHenry County Regional Superintendent of Schools for a building permit, which was issued pursuant to §3-14.20 of the School Code. The district did not notify the City or apply for a building permit, zoning approval, or storm water management before it began the project.

When the City learned of the project, it ordered the Board to stop work until the Board obtained a special-use permit, a storm water permit and zoning variances. The Board, believing itself exempt from the City’s zoning authority, ignored the City’s order and completed construction of the new bleachers.

Unsurprisingly, residents living next to the School sued the Board, alleging that the bleachers did not comply with the City’s zoning regulations and that they negatively impacted property values.

Before Construction

Picture depicting the view from the Plaintiff's backyard prior to the construction of new bleachers
Picture depicting the view from the Plaintiff’s backyard prior to the construction of new bleachers

After Construction

Picture included in brief before the Illinois Supreme Court, depicting the view of the Plaintiff's backyard following the school's construction of its new bleachers
Picture depicting the view of the Plaintiff’s backyard following the school’s construction of its new bleachers

Simultaneously, the School district filed a declaratory judgment action that requested the court provide a definitive ruling as to whether it must comply with the City zoning ordinances at issue.

Analysis

The Supreme Court explained that unless an express statutory exclusion exists, “municipalities are empowered by the Illinois Municipal Code to regulate all land uses within their territory.” Although the General Assembly has exempted certain entities or uses from municipal zoning regulations (such as political campaign signs, and antennas for amateur radio communications), no statutory provision exempts school property from zoning regulations. Thus, the Supreme Court concluded that “under the plain terms of the Municipal Code, school property is subject to municipal zoning laws.”

The Court also examined the fact that the City is home rule, giving it broad powers to perform functions related to its government affairs – such as zoning – unless a statute expressly pre-empts such powers. Despite the Gurba Court’s focus on the City’s home rule authority, the Municipal Code grants non-home rule municipalities essentially the same power to enact zoning regulations, and nothing contained in Gurba, or in statute, suggests a non-home rule municipality has any less authority to impose zoning regulations on school property.

The Board tried to argue that permitting the City’s zoning powers to extend to school property unduly interfered with the General Assembly’s “constitutional authority to regulate the public education system.” The Supreme Court disagreed. In fact, the General Assembly expressly acknowledges and accepts the application of zoning ordinances to school property, as Section 10-22.13a of the Illinois School Code authorizes school boards “[t]o seek zoning changes, variations, or special uses for property held or controlled by the school district.” The Board also argued that the City’s review and inspection of school construction plans is limited to the Health/Life Safety Code for Public Schools; however, the Court held that nothing contained in this code – or the statutes imposing it – alter the statutory authority municipalities have to enact and enforce zoning regulations.

The Supreme Court held that the School district and Board were subject to the City’s zoning regulation. As a consequence, the school has to tear its new bleachers down.

Conclusion

The Supreme Court’s decision in Gurba should put to rest the perennial debate between municipalities and school districts within their territory with respect to zoning. Following Gurba, school districts would be well-advised to communicate early and often with their municipality’s zoning departments to ensure compliance with all applicable regulations. In turn, municipalities may want to review current regulatory compliance by schools within their jurisdiction to determine what action, if any, would be appropriate.

Email Addresses Must Be Posted on Public Body’s Website

If you have a website, a new law requires posting certain trustee, council or board member email addresses

By Joshua D. Herman

joshua.herman@mhtlaw.com

The Illinois Local Records Act was amended by the addition of 50 ILCS 205/20, which became effective January 1, 2015. The amendment requires units of local government and school districts that serve a population of less than 1,000,000 and maintain an Internet website (other than a social media or social networking website) to “post to its website for the current calendar year a mechanism, such as a uniform single email address, for members of the public to electronically communicate with elected officials of that unit of local government or school district, unless such officials have an individual email address for that purpose.”

Public bodies must become compliant with the new law by April 1, 2015 (90 days after the Act went into effect).

Crucial Rule for Processing Traffic Tickets

Court dismisses ticket because it was not transmitted to circuit clerk within 48-hour deadline

By Kateah M. McMasters

Supreme Court Rule 552 requires municipal police officers and police departments to transmit traffic citations to the circuit clerk within 48 hours of issuance.

In 1989, the Illinois Appellate Court held that this Rule is directory rather than mandatory, and that the dismissal of a traffic citation for a violation of this Rule is only appropriate where the procedure used by an officer or police department was part of a pattern that clearly and consistently violated the Rule.  However, the Court did not define what constitutes such a pattern.

Through its recent decision in People v. Geiler, the Illinois Appellate Court shed further light on this issue when it upheld a dismissal of a traffic citation based upon a police department’s practice of delivering citations to the circuit clerk on Mondays and Fridays.

People v. Geiler

People v. Geiler arises from a speeding ticket issued to Christopher Geiler on Monday, May 5, 2014, by a City of Troy police officer.  Troy police department usually hand-delivered tickets issued over the weekend on Monday and delivered citations issued during the week on Friday. Thus, Geiler’s Monday ticket was not filed with the Madison County circuit clerk until Friday, May 9, 2014 (four days later).

The Geiler Court found that, under this procedure, citations issued on Mondays, Tuesdays and Fridays were consistently transported to the circuit clerk beyond the 48-hour deadline.  Thus, the Court upheld the dismissal of Mr. Geiler’s citation because the delay he suffered was a clear and consistent violation of Rule 552.  Moreover, the Court upheld the dismissal despite the testimony of an officer with 11 years of experience that it was impossible to transport citations to the courthouse every day.

While the dismissal of one traffic citation may seem inconsequential, the regular dismissal of traffic citations for regular delays could significantly impact a public body’s ability to consistently enforce the law or to generate revenue from the issuance and prosecution of traffic citations.

Lessons learned: review ticket procedures immediately

Public bodies should review their police departments’ procedures for processing traffic citations to ensure compliance with Rule 522 and to avoid the routine dismissal of citations.   One effective way to comply with the Rule is to have an officer hand-deliver the citations to the circuit clerk every Monday, Wednesday and Friday.  Upon delivery, the officer should have the clerk sign a receipt that lists which citations   were delivered and the date of delivery.

Hand delivery three times a week may be a substantial burden for small or rural public bodies.  If so, police departments should mail the citations every Monday, Wednesday and Friday using certified mail, or some other method that provides proof of mailing.  A record should be kept  of the mailed citations that includes the date on which the citations were mailed.

Please note that the Geiler Court held Friday citations that were not delivered until Monday violated Rule 522’s the 48-hour rule. Thus, in light of Geiler, police departments should also consider mailing  on Saturday any citations issued on Friday, in addition to either hand-delivering or mailing citations every Monday, Wednesday and Friday.

With receipts and records of mailing in-hand, public bodies can prevent future ticket dismissals for alleged violations of Rule 522.

Personal Information Obtained From Driver’s Record Must Be Removed From FOIA Responses

Public bodies take note, new case holds newspaper may have violated law by publishing personal information obtained from driving records

By Joshua D. Herman

joshua.herman@mhtlaw.com

Newspapers often pursue legal and administrative remedies against public bodies, alleging failure to properly disclose information in response to a Freedom of Information Act (“FOIA”) request. The tables were turned in Dahlstrom v. Sun-Times Media, LLC, 2015 WL 481097, a case decided by the 7th Circuit Court of Appeals in February, 2015. In Dahlstrom, five police officers sued the Chicago Sun-Times for its disclosure of personal information that it obtained from the officers’ driver’s records.

Dahlstrom v. Sun-Times Media

This case is instructive for public bodies attempting to comply with FOIA while avoiding liability for disclosing certain information.  Dahlstrom arises from the Sun-Times’ reporting on the Chicago Police Department’s (“CPD”) murder investigation of the nephew of then-Mayor Richard M. Daley. The Sun-Times questioned the legitimacy of a lineup featuring the nephew and five CPD officers in an article titled: “Daley Nephew Biggest Guy on Scene, But Not in Lineup.” The Sun-Times published photographs of the lineup and the officers’ names, both of which were obtained from the CPD. Problematically, the Sun-Times also published information it received from the Secretary of State, including: the months and years of the officers’ births, their heights, weights, hair colors, and eye colors.

The Driver’s Privacy Protection Act (the “DPPA”), 18 U.S.C. 2721, prohibits any person from knowingly obtaining or disclosing personal information from a motor vehicle record. The Act defines “personal information” as “information that identifies an individual, including an individual’s photograph, social security number, driver identification number, name, address (but not the 5-digit zip code), telephone number, and medical or disability information, but does not include information on vehicular accidents, driving violations, and driver’s status.”

The Sun-Times claimed the information it published from the Secretary of State was not “personal information,” and, even if it were, the DPPA violates the First Amendment by preventing the press from reporting the news.  The Seventh Circuit rejected  both of the Sun-Times’ arguments.

First, it held that the information at issue was “personal information” under the DPPA. The Court noted that, prior to enactment of the DPPA, virtually anyone could get motor vehicle records for any driver, from almost any state and for any reason, and that the purpose of the DPPA was to protect personal information from being so readily disclosed. The Court also recognized that the DPPA was meant to prevent some states from continuing a practice of selling drivers’ personal information to businesses engaged in direct marketing and solicitation.

Second, the Court held that the DPPA does not unconstitutionally restrict First Amendment rights to speech and the press. Instead, it provides a valid, content-neutral restriction imposed on a rational basis.

Based on these holdings, the Court upheld the denial of the Sun-Times’ motion to dismiss, and ordered the officers’ suit to continue.

FOIA Responses After Dahlstrom

While FOIA permits a public body to redact certain exempt information from public records before it produces them in response to a request, FOIA does not typically require redaction. For example, Section 7 of FOIA allows a municipality to redact private and personal information from a FOIA response. Section 7.5 allows redaction of “[l]aw enforcement officer identification information or driver identification information compiled by a law enforcement agency or the Department of Transportation under Section 11-212 of the Illinois Vehicle Code” and “[p]ersonally identifiable information which is exempted from disclosure under subsection (g) of Section 19.1 of the Toll Highway Act.” Of course, FOIA also has a catch-all exemption that permits redaction of information “specifically prohibited from disclosure by federal or State law or rules and regulations implementing federal or State law.”  However, none of these require the relevant information be redacted.

Dahlstrom demonstrates that disclosure of personal information obtained from drivers’ and motor vehicle records may subject a public body to liability under the DPPA. To avoid liability, public bodies must redact this type of information from their FOIA responses.

Readers may also be interested to know that the Seventh Circuit included a footnote that told the rest of the underlying story in Dahlstrom. The Cook County Circuit Court appointed a special prosecutor to investigate the matter. Daley’s nephew was subsequently indicted and charged with involuntary manslaughter, to which he pled guilty in January 2014.

In conclusion, regardless of how a public body obtains personal information from driver and motor vehicle records, the body must redact such information before producing documents in a FOIA response. If you ever question whether certain information can be obtained or should be disclosed without violating FOIA or the DPPA, please consult your attorney.