Author: Chris Peters

IMPLEMENTATION OF THE SMALL WIRELESS FACILITIES DEPLOYMENT ACT

In April 2018, Public Act 100‑585 – the Small Wireless Facilities Deployment Act (the “Act”) – was signed into law.  This Act became effective on June 1, 2018, and impacts all municipalities in the State of Illinois (except Chicago).  Small wireless facilities – being antennas and other similar devices – are telecommunications hardware that can be attached to existing utility poles, light poles, or other structures  often found in the public right-of-way.  These small wireless facilities will allow wireless carriers to enhance cellular transmissions in hard to reach areas, while also allowing implementation of the next generation 5G wireless technology.  Illinois municipalities will need to act promptly to ensure that these small wireless facilities are not being installed and operated in municipal rights-of-way without permissible oversight by the municipality as provided under the Act – including collecting permit fees.

 

In passing the Act, the Illinois Legislature noted that small wireless facilities are critical for delivering wireless access to advanced technology, broadband, and 9-1-1 services to homes, businesses, and schools in Illinois.  The Illinois Legislature further noted that this access to wireless technology is integral to the economic vitality of the State and to the lives of all Illinois citizens.  But, in making these proclamations and passing this Act, the State has significantly limited a municipality’s ability to regulate the placement and installation of small wireless facilities on any right-of-way under the control of the municipality.  The Act also requires that if a municipality grants access to other telecommunication carriers to municipal property outside of the public right-of-way, the municipality must provide the same access to these small wireless facilities.

 

Specifically, the Act addresses the installation, mounting, maintenance, modification, operation, or replacement of small wireless facilities on any support structure or utility poles in a municipality’s right-of-way (this is defined as “collocation of small wireless facilities”).  Small wireless facilities are no more than six cubic feet in volume and “collocated” atop an existing utility or light pole or a new similarly styled support structure.  Basically, a municipality cannot regulate the installation or placement of small wireless facilities in a municipal right-of-way that do not exceed 10 feet in additional height on an existing pole or that do not exceed 45 feet in height for any new support structure.  As such, small wireless facilities are permitted uses and not subject to zoning review or approval if they are collocated in the right-of-way in any zoning district or outside of the right-of-way on property zoned exclusively for commercial or industrial use.  Further, a municipality cannot limit the number of wireless carriers installing small wireless facilities in the municipality.

 

The Act does allow a municipality to require a wireless carrier to submit an application for the installation of small wireless facilities with the municipality issuing a permit.  The application can require submission of certain information for each small wireless facility, including siting and mounting information (with a photograph), specifications and drawings, along with structural integrity analysis, prepared by a structural engineer, and  an installation schedule.  Furthermore, a municipality can propose alternate placements within 100 feet of the requested site to help ensure the integrity of the public right-of-way.  But, it is important to note that the Act provides a specific application review period, and if a municipality does not respond to an application within 30 days after the application is submitted, the application is deemed complete and approved.

 

Moreover, a municipality can assess a permit fee of up to $650 for the first collocated facility and $350 for each additional facility and up to $1,000 for a facility on a new pole.  Permits are to be issued for a five-year period.  With regard to small wireless facilities on municipal property, the annual permit fee is capped at $200.  However, a municipality cannot collect any permit fees without first adopting either an ordinance or a written fee schedule. Most importantly, a municipality has effectively until August 1, 2018, to adopt this small wireless facility fee schedule, or thereafter a wireless carrier can begin installing small wireless facilities in a municipality’s right-of-way without having to submit an application or pay any permit fees to the municipality.  If a municipality does wait until after August 1, 2018, to adopt an ordinance or permit fee schedule, the municipality will only be able to collect permit fees for any small wireless facilities installed after the municipality does adopt an ordinance or fee schedule.

 

The Act includes several other important provisions as well.  For instance, a municipality may impose design standards for decorative utility poles or other reasonable stealth, concealment, or aesthetic requirements for small wireless facilities – which may be very significant for certain areas within a municipality where appearance is important, such as a town square or a residential area.  Any ground-mounted equipment associated with the small wireless facility that is not attached to the pole or support structure can also be required to comply with the municipality’s undergrounding requirements or right-of-way permitting  requirements.  Additionally, wireless carriers can be required to meet indemnification and specified insurance requirements before undertaking work to install any small wireless facilities.  Last, municipalities can remove abandoned facilities that have not been operated for a 12-month period.  But, similar to the permit fees, these additional provisions must be enacted by the municipality through an ordinance in order to be enforceable.

 

This Act has been a couple years in the making as wireless technology is moving to the next generation 5G wireless technology.  Interesting, the Illinois Legislature established a sunset date of June 1, 2021, for this Act.  As a result, we can expect to see revisions or updates to this Act as we approach the sunset date in 2021.  Nevertheless, municipalities need to take the time to understand this new Act, while timely establishing a permit fee schedule to ensure that a municipality can capture the revenue from issuing permits for these small wireless facilities.

Miller, Hall & Triggs Attorney presents seminar on Real Estate Closings

On March 21, 2018, Christopher Oswald of Miller, Hall & Triggs presented on the topic of Real Estate Closings as a part of the Peoria County Bar Association’s “Brown Bag” continuing legal education series of seminars.  Together with another local attorney, Mr. Oswald emphasized planning and communication at the earliest stages of the transaction as key elements of bringing a transaction to a successful close- emphasizing that in order to best represent a client’s interest, practitioners should pay attention to often overlooked issues and make a point to have effective communication with all parties and professionals assisting with the transaction.

 

Mr. Oswald regularly assists clients of Miller, Hall & Triggs, LLC in a wide range of real estate issues, and has developed relationships with professionals throughout the State of Illinois to assist clients in planning for, structuring and bringing to a successful close a variety of real estate transactions.  He presently serves as Chairman of the Peoria County Bar Association Real Estate Committee.

 

 

Press Release

The law firm of MILLER, HALL & TRIGGS, LLC is pleased to make the following announcements regarding the attorneys at our firm.  As of January 1, 2018, Katherine L. Swise has become a member of the firm.  Also, Jennifer Klein VandeWiele and Nancy L. Rabel have become Of Counsel with the firm.  Further, the firm recently welcomed Kathleen M. Carter and Lauren A. Christmas as our newest Associates with the firm.  With our continued focus in the practices areas of local government and municipal law, education law, commercial and residential real estate, business and corporate law, and estates and trusts, we are excited to have these attorneys join our team at Miller, Hall, & Triggs, LLC.

Changes to the Juvenile Court Act

Records of Municipal Ordinance Violations to be Kept Confidential & Automatic Expungement of Law Enforcement Records

 

Effective January 1, 2018, two important changes were made to the Juvenile Court Act of 1987 (705 ILCS 405/1-1 et seq.) (the “Act”) concerning records of minors who are investigated, arrested or taken into custody prior to the minor’s 18th birthday.

 

Under prior law, the Act only applied to the courts and law enforcement agencies (which include municipal police departments), rather than to units of local government themselves.

 

However, within the recent changes to the Act, municipalities are now required to keep confidential all records of municipal ordinance violations that are maintained by the municipality and which relate to a minor who has been investigated, arrested or taken into custody prior to the minor’s 18th birthday.  Except in certain limited situations, such ordinance violation records are not subject to disclosure, inspection, or copying.

 

This change to the Act will likely not have a significant impact upon those municipalities which utilize a law enforcement agency for the issuance of ordinance citations because records that are maintained by law enforcement agencies were previously subject to the Act’s confidentiality and disclosure rules.  However, those municipalities which do not utilize a law enforcement agency for the issuance of ordinance citations (i.e. code enforcement officers or marshals) are now subject to these rules.

 

Specifically, municipalities are now prohibited from disclosing to the general public any records pertaining to an ordinance violation by a minor.  In addition, municipalities are only authorized to allow the inspection and copying of a minor’s ordinance violation record(s) in very limited circumstances, including, but not limited to, the following:

 

  1. Any local, State, or federal law enforcement officer when necessary for the discharge of their official duties;
  2. Prosecutors, probation officers, social workers, and other individuals assigned by the court and in connection with criminal proceedings;
  3. Department of Children and Family Services (DCFS); and
  4. Appropriate school officials only if there is an imminent threat of physical harm to students, school personnel, or others present in the school or on school grounds.

 

Interestingly, the Act does not create an exception for the disclosure, inspection or copying of records by the subject minor, the minor’s parents or guardians, or an authorized agent.  While the Act may not explicitly authorize such action, it may nevertheless be required under the law.  Municipalities should consult with counsel prior to any disclosure, inspection or copying of records which relate to a minor.

 

The second change, while only impacting law enforcement agencies, imposes a rather large burden upon local law enforcement agencies and municipal police departments.  The Act now requires all law enforcement agencies to expunge or permanently destroy certain records that are maintained by the law enforcement agency pertaining to minors on an annual basis.  These records, which are called “law enforcement records”, include, but are not limited to, records of arrest, station adjustment, fingerprints, probation adjustments, the issuance of a notice to appear, and any other records or documents relating to a minor suspected of committing an offense or evidence of interaction with law enforcement (i.e. ordinance violations).

 

This new requirement mandates that, on or before January 1st of each year, all law enforcement agencies within the State of Illinois automatically expunge all law enforcement records, except records for a serious felony offense, relating to events occurring before an individual’s 18th birthday.  However, such law enforcement records must meet the following requirements in order to qualify for automatic expungement:

 

  1. One year or more must have passed since the date of arrest or the documented law enforcement interaction;
  2. No petition for delinquency or criminal charges has been filed relating to the arrest of documented law enforcement interaction; and
  3. Six (6) months must have passed without an additional or subsequent arrest or filing of a petition for delinquency or criminal charges.

 

Local law enforcement agencies and municipal police departments should work with counsel and the State’s Attorney’s Office to ensure that records qualify for expungement prior to their destruction.

 

Municipalities are also reminded that expunged juvenile records may not be considered in employment matters.  The Act requires applications for employment, including employment with a public body, to contain a statement that the applicant is not obligated to disclose expunged records relating to any act(s) that was committed while the applicant was a minor.

Miller Hall & Triggs closes on two RAD Low Income Housing Tax Credit Transactions in December 2017

Richard M. Joseph with Miller, Hall & Triggs, LLC closed on two RAD Low Income Housing Tax Credit Transactions in December 2017 benefiting the Housing Authority of the City of Rock Island, Illinois and its affiliated not for profit corporation and the Housing Authority of the City of Pine Bluff, Arkansas and its affiliated not for profit corporation.

The RAD program,  administered by HUD,  was established in order to give public housing authorities a powerful tool to preserve and improve public housing projects and address issues of deferred maintenance by providing for the voluntary conversion of public housing and other HUD-assisted properties to long-term, project-based Section 8 rental assistance, utilizing either project-based vouchers or project-based rental assistance contracts. RAD allows public housing agencies to leverage public and private debt and equity to help ensure that the units remain affordable to low income households.

The Rock Island, Illinois project made possible the conversion and rehabilitation of 141 units in an eleven story apartment building through the use of 4% low income housing tax credits generating $3,590,410 in equity, $6,100,000 Multi-family Housing Revenue Bonds issued through the Illinois Housing Development Authority, $4,487,200 non-recourse loan through the HUD 223(f) program, and use of Public Housing Operating Reserve Funds and Replacement Housing Factor Funds.

The Pine Bluff, Arkansas project made possible the conversion and substantial rehabilitation of 251 units in four separate apartment complexes through the use of 4% low income housing tax credits generating $5,557,636 in equity, $10,500,000 Multi-family Housing Revenue Bonds issued through the Arkansas Development Finance Authority, $7,055,400 non –recourse loan through the HUD 223(f) program and use of Public Housing Operating Reserve Funds and Public Housing Capital Funds.

Governor Mandates Public Entities Enact Policies Prohibiting Sexual Harassment by January 15, 2018

  On November 16, 2017, Governor Rauner signed into law Public Act 100-0554, which amends the Illinois State Officials and Employees Ethics Act by requiring local governmental entities to adopt, by ordinance or resolution, a policy prohibiting sexual harassment.  5 ILCS 430/70-5.  Although many governmental entities may already have sexual harassment policies in place, the law sets forth new minimum standards for all policies.  According to the new amendments, a policy prohibiting sexual harassment shall include, at a minimum:

  • a prohibition on sexual harassment;
  • details on how an individual can report an allegation of sexual harassment, including options for making a confidential report to a supervisor, ethics officer, Inspector General, or the Department of Human Rights;
  • a prohibition on retaliation for reporting sexual harassment allegations, including availability of whistleblower protections under this Act; and
  • the consequences of a violation of the prohibition on sexual harassment and the consequences for knowingly making a false report.

     For purposes of the Illinois State Officials and Employees Ethics Act, “governmental entity” is defined as “a unit of local government (including a community college district) or a school district but not a State agency or a Regional Transit Board.” 5 ILCS 430/1-5.  This would include, but not be limited to municipalities, counties, townships, park districts, school districts, and community college districts.  All governmental entities should review their current sexual harassment policies to ensure that they meet the minimum standards and were properly approved by either resolution or ordinance by the January 15, 2018 deadline. To view the full Act, see Public Act 100-0554

Elected and Appointed Municipal Law Seminar – May 13, 2017

Lawyers with Miller, Hall & Triggs will host its eleventh biennial Municipal Law Seminar on May 13, 2017 from 8:30 am to noon with lunch to be served thereafter.

This seminar focuses upon topics of interest to current and newly elected Mayors and council members, City managers and administrators, City clerks and in-house legal counsel, including:

  •  Economic Development and the Role of the Municipality;
  •  Cost Savings Achieved through Refinancing of Existing Debt;
  •  Code Enforcement and Property Issues;
  • Recent developments in the Open Meetings  Act and Freedom of Information Act;
  • Avoiding Personal Liability for Municipal Officials;
  • Use of Public Parks and other Public Areas – First Amendment Implications;
  • Negotiations, Labor Relations and Employee Discipline; and
  • Making your Meetings more Productive and Professional

 

The seminar will be held at the East Peoria Campus of Illinois Central College.

 

Registration is now closed. If you would like to discuss any of the above topics or have questions regarding other issues in municipal and public law, please contact us at (309) 671-9600.