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.
Recent Guidance from Illinois Courts May Limit the Amount that May be Collected
The Illinois Vehicle Code authorizes municipalities to impose an administrative fee for the processing and release of lawfully impounded vehicles. However, a recent Illinois appellate court decision has brought into question the amount of such fees that can lawfully be imposed. As a result, municipalities should review any existing ordinance imposing such a fee to ensure that the fees can be justified under the Vehicle Code and in accordance with recent guidance from the courts.
The Vehicle Code authorizes all municipalities to pass an ordinance providing “procedures for the release of properly impounded vehicles and for the imposition of a reasonable administrative fee related to its administrative and processing costs associated with the investigation, arrest, and detention of an offender or the removal, impoundment, storage, and release of the vehicle.” 625 ILCS 5/11-208.7(a) (emphasis added). This fee may be imposed for vehicles that have been lawfully impounded for those specific violations listed in the statute, and is imposed against the registered owner of the vehicle or such owner’s agent. The Vehicle Code does not set a maximum fee that may be imposed by a municipality for the release of impounded vehicles; it merely provides that the fee be “reasonable” and “related to” the municipality’s administrative costs associated with the tow and impound. However, in the case of Carter v. City of Alton, decided in May of 2015 (Carter v. City of Alton, 2015 IL App (5th) 130544), the Illinois Appellate Court set forth guidelines for determining whether a fee imposed by a municipality is reasonable.
In Carter, the court addressed whether the dismissal of challenges to the administrative tow fee of four separate municipalities was proper, based on the amount of the fee charged. The court first noted that fees imposed by a municipality must be rationally related to their stated purpose, which means that the amount charged must bear “some reasonable relationship to the actual costs it is intended to recoup.” While the fee need not represent the municipality’s precise costs, it must “at least relate” to the actual costs incurred in association with the impound. The court also noted that many of the costs the cities were using to justify their tow fees were costs that would be associated with any arrest, even though they were only charged in arrests involving vehicles. The court found this practice to be improper, and stated that, if a fee was to be charged because of the involvement of a vehicle in the crime, then it was inappropriate to consider costs that were not unique to those vehicle offenses for which a fee may be imposed.
It is important to note that the Carter court did not render an opinion as to whether the fees charged by the cities involved in that case were reasonable and related to the cities’ actual administrative costs. The court only addressed whether it was proper for the trial court to grant the cities’ motion to dismiss the challenges to their respective ordinances without first making a factual determination as to whether the fees charged were reasonably related to the cities’ costs. The court ultimately held that such dismissal was improper.
Based on the court’s decision in Carter, municipalities should review any ordinance imposing an administrative fee for towing and impounding of vehicles in order to ensure that the fee imposed is representative of the municipality’s actual costs related to administration and processing of such vehicles. A municipality should be prepared to demonstrate that the fee imposed bears a reasonable relationship to these costs. Pursuant to the statute, a municipality can consider the costs associated with the investigation, arrest, and detention of an individual, as well as the removal, impoundment, storage, and release of the vehicle. However, the court’s guidance in Carter suggests that only those costs unique to vehicle offenses should be considered when calculating the actual administrative cost to the municipality in processing these offenses. Municipalities with questions about the validity of their administrative tow fees or the costs that can be recouped following a tow and impound in light of the Carter decision should consult with their municipal attorneys.
Non-home rule municipalities may now enforce administrative orders in the same manner as judicial orders
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.
Churches Must Be on Equal Terms with Nonreligious Institutions
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.
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.