MHT Regularly Assists with Low Income Housing Tax Credit Projects

Miller, Hall & Triggs, LLC, provides experienced counsel to a number of housing authorities and not-for-profit corporations seeking to develop or redevelop affordable housing through low income housing tax credits throughout Illinois and Arkansas. We regularly work with housing authorities and not-for-profit entities, the Illinois Housing Development Authority, lenders, investors and FHA and HUD to negotiate and close extremely complex housing transactions.

Examples of low income housing tax credit projects we have worked on:

Project Name: Galena Park Terrace, Peoria, Illinois
Galena Park Terrace, an Illinois Not-for-Profit Corporation
Year Completed: 2016
Project Type: Rehabilitation
Units: 127
Units Serving Low-Income:  127
Type of Construction: One bedroom and Studio Apartment Complex
Cost of Development: $20,189,292
IRS Funding: Low-Income Housing Tax Credits
HUD Funding FHA: 221(d)(4) insured mortgage
Financing Structure: Equity – Loans
Current Status: Presently being rehabilitated
Substantially leased while under construction

Project Name: Leisure Acres, East Peoria, Illinois
East Peoria Jaycees Housing Corporation, an Illinois not-for-profit corporation
Year Completed: 2015
Project Type: Rehabilitation
Units: 100
Units Serving Low-Income: 100
Type of Construction: Apartment Complex
Cost of Development: $11,271,000
IRS Funding: Low-Income Housing Tax Credits
HUD Funding:  IRP Subsidy
HUD Funding: Project-Based Rental Assistance (PBRA)
Financing Structure: Equity – Loans
Current Status: Construction complete
Fully leased and pending final closeout

Project Name: Lynden Lane
Rock Island, IL Housing Authority
Year Completed: 2015
Project Type: New Construction (demolition and redevelopment of Public Housing)
Units: 55
Units Serving Low-Income: 43
Type of Construction: Single Family and Duplex
Cost of Development: $14,112,000
Public Funding: Illinois Affordable Housing Tax Credits
IRS Funding: Low-Income Housing Tax Credits
HUD Funding: FHA 221(d)(4) insured mortgage
Financing Structure: Equity – Loans
Current Status: Construction complete
Fully leased and pending final closeout

Project Name: Pana Towers
Christian County Integrated Community Services (Illinois)
Year Completed: 2014
Project Type: Rehabilitation
Units: 72
Units Serving Low-Income: 72
Type of Construction: 8 Story Elevator Apartment Building
Cost of Development: $8,238,000
Public Funding: Illinois Affordable Housing Tax Credits (IAHTC),
FHLB Affordable Housing Program (AHP)
IRS Funding: Low-Income Housing Tax Credits
HUD Funding: FHA 221(d)(4) insured mortgage
HUD Funding: RAD/Project-Based Rental Assistance (PBRA)
Financing Structure: Equity – Loans – Grants
Current Status: Rehab complete
Fully leased and pending final closeout

Project Name: Southern Crossing
Pine Bluff, AR Housing Authority
Year Completed: 2013
Project Type: New Construction – Mixed Income
Units: 65
Units Serving Low-Income: 48
Type of Construction: Single Family
Cost of Development: $10,869,370
Public Funding: HOME, FAF/BMIR
IRS Funding: Low-Income Housing Tax Credits
HUD Funding FHA: 221(d)(4) insured mortgage
HUD Funding:  Section 8 Project Based Vouchers
Financing Structure: Grants – Equity – Loans
Current Status: Stabilized with High Occupancy

Project Name: Clayton Heights
Ft. Smith, AR Housing Authority
Year Completed: 2013
Project Type: New Construction – Mixed Income
Units: 57
Units Serving Low-Income 35
Type of Construction: Single Family
Cost of Development: $9,259,568
Public Funding: HOME, FAF/BMIR
IRS Funding: Low-Income Housing Tax Credits
HUD Funding:  FHA 221(d)(4) insured mortgage
HUD Funding:  Section 8 Project Based Vouchers
Financing Structure: Grants – Equity – Loans
Current Status: Stabilized 100% occupancy

Project Name: The Meadows
Jacksonville, AR Housing Authority
Year Completed: 2013
Project Type: New Construction – Mixed Income
Units: 55
Units Serving Low-Income:  41
Type of Construction: Single Family
Cost of Development: $13,191,000
Public Funding: HOME, CDBG
IRS Funding: Low-Income Housing Tax Credits
HUD Funding: FHA 221(d)(4) insured mortgage
HUD Funding: Section 8 Project Based Vouchers
Financing Structure: Grants – Equity – Loans
Current Status: Stabilized with High Occupancy

Project Name: Cascade Gardens
Rock Island, IL Housing Authority
Year Completed: 2011
Project Type: New Construction
Units: 70
Units Serving Low-Income 70
Type of Construction: Multi-Family Special Needs Apartments
Cost of Development: $13,191,000
Public Funding: American Recovery & Reinvestment Act (ARRA)
IRS Funding: Low-Income Housing Tax Credits
HUD Funding:  Mixed-Finance
HUD Funding:  Section 8 Project Based Vouchers
HUD Funding:  Tax Credit Assistance Program (TCAP)
Financing Structure: Grants – Equity – Loans
Current Status: Stabilized with High Occupancy

Project Name: North Pointe II, Development
Ft. Smith, AR Housing Authority
Year Completed: 2010
Project Type: New Construction
Units: 67
Units Serving Low-Income
Households: 50
Type of Construction: Single-Family – Duplex
Cost of Development: $10,811,336
Public Funding: HOME – CDBG – City of Ft. Smith St. Fund
IRS Funding: Low-Income Housing Tax Credits
HUD Funding: Capital Funds
HUD Funding: Section 8 Project Based Vouchering
Financing Structure: Grants – Equity – Loans
Current Status: Stabilized with High Occupancy

Project Name: North Pointe, Development
Ft. Smith, AR Housing Authority
Year Completed: 2007
Project Type: New Construction
Units: 50
Units Serving Low-Income
Households: 40
Type of Construction: Single-Family – Duplex
Cost of Development: $6,511,336
Public Funding: HOME – CDBG – City of Ft. Smith St. Fund
IRS Funding: Low-Income Housing Tax Credits
HUD Funding: Capital Funds
HUD Funding: Unrestricted Section 8 Reserves
HUD Funding: Section 8 Project Based Vouchering
State Funding: State Low-Income Housing Tax Credits
Financing Structure: Grants – Equity – Loans
Current Status: Stabilized Operation 100% Occupied

Project Name: County Estates
Menard County, Illinois Housing Authority
Ownership Type: Scattered Site Rentals
Project Type: New Construction
Year Completed: 2007
Units: 68 Detached Single-Family and Multi-family Rental Units
Units Serving Low-Income Households: 60
Cost of Development: $12,518,000
Public Funding: HUD HOPE VI Demolition, Capital Funds
Low-Income Housing Tax Credits
State Tax Credits
Illinois Affordable Housing Trust Fund
FHLB AHP Program
Conventional Financing
Project Based Section 8 Vouchering
Financing Structure: Grants and Loans
Under Limited Partnership Ownership
Current Status: Stabilized with High Occupancy

Project Name: Oakwood Trace Townhomes L. P.
Champaign County, Illinois Housing Authority
Ownership Type: Limited Partnership
Project Type: Rehabilitation
Year Completed: 2002
Units: 50
Units Serving Low-Income
Households: 39
Cost of Development: $7,200,000
Public Funding: HOME, CDBG, City Utility funds,
FHLB (AHP) Program, LIHTC,
HUD Upfront Grant, Fannie Mae,
Conventional Bank funding
Financing Structure: Grants and Loans under a Limited
Partnership
Current Status: Stabilized with 98% Occupancy

Click here to read testimonials and recommendations with respect to our work on Low Income Housing Tax Credit Projects, or contact Richard M. Joseph to see how we can help you.

 

Herman presents seminar on New Overtime Rules

MHT Presents Seminar on New Overtime Regulations to Local Businesses

MHT Partner Joshua D. Herman, in coordination with the Illinois Small Business Development Center at Bradley University, presented a Lunch and Learn Seminar for the New Overtime Rules on July 26, 2016.

The new Overtime Rules almost double the salary employees must be paid in order to be exempt from overtime payment protections, requiring all business – large and small – review their current employees and prepare.

The Illinois Small Business Development Center at Bradley University and Joshua Herman, a partner at the law firm of Miller, Hall & Triggs, LLC, cosponsored a lunch-and-learn regarding the new Overtime Regulations to address the significantly impact to local businesses.  Attendees learned about:

  • What the new rules change;
  • How the new rules apply to their business;
  • The need audit employee classifications and how to do so;
  • How to maintain exemptions or otherwise handle newly non-exempt employees after Dec. 1; and,
  • Severe penalties for failing to comply with the rule.

If you would like a copy of the written materials provided to attendees, or if you would like more information about what you must do to prepare for the changes in the law, contact Joshua Herman.

For more information, see the recent news broadcasts regarding the new overtime rules by visiting WMBD New Overtime Law or by reading the Peoria Journal Star article: “Many employers unaware of how new overtime rules affect them.”

Condominium Redevelopment Requirements

Requirements of Condominium Conversion Projects

Illinois Conversion Condominium Projects – Notice of Intent to Convert and Disclosure Requirements

By Michael A. Keeton

michael.keeton@mhtlaw.com

 

The Illinois Condominium Property Act (the “Act”) (765 ILCS 605/1 et seq.) contains provisions allowing for the conversion of residential apartments or other income producing property from sole ownership to individually owned condominium units.  However, in order for a sole owner to pursue this type of conversion condominium project, there are numerous requirements to be considered and met.  This article will summarize a number of the essential requirements associated with such a project.

In addition to the requirements set forth in the Act, municipalities also have the ability to govern development of conversion condominiums.  For example, the City of Chicago by ordinance has extensive additional requirements for conversion condominium projects in Chicago.  Chicago Municipal Code Ch. 13-72.  This article will focus upon the requirements of the Act.

 Notice of Intent to Convert

§30 of the Act details various requirements unique to a conversion condominium, beginning with a provision that no real estate may be made subject to the Act without first providing notice of the intent to convert to all persons who are tenants of the building located on the real estate at the time the notice is provided. 765 ILCS 605/30(a)(1).

A declaration of condominium may not be recorded against the real estate until thirty days after the notice of intent is given, and no more than one year before the declaration is recorded.  As part of the declaration of condominium, the developer of the conversion condominium project (i.e., the seller/owner) must execute a certificate that the notice of intent was given to all persons who were then tenants. Id.

The notice of intent to convert must be given to the current tenants before any agreement of sale of condominium units is made.  Id.

The notice of intent to convert must include a schedule of unit sales prices for all units that will be subject to the declaration, and the notice must include an offer to sell to the current tenant of each unit at the listed price, except for units to be vacated for rehabilitation subsequent to the notice. 765 ILCS 605/30(b).

§30 of the Act also provides additional protection to tenants of a pending conversion condominium project. For example, tenants whose current tenancy expires within 120 days of the notice of intent to convert (other than a termination for cause) have the right to extend their tenancy on the same terms and conditions as the existing tenancy until the end of a 120-day period following receipt of notice of intent to convert, if the tenants give written notice of their intention to stay during that 120-day period to the developer within 30 days after having received the notice of intent to convert. 765 ILCS 605/30(c).

A tenant also has the right to be informed by the developer at the time the notice of intent is given whether the tenant’s lease will be renewed or terminated upon expiration. If a lease is to be renewed, a tenant must be informed of all charges, rental or otherwise, in connection with the new lease, and the time-frame of the new lease. 765 ILCS 605/30(d).

For 120 days following receipt of the notice of intent to convert, tenants have a first right to purchase their unit on substantially the same terms and conditions as set forth in any duly executed contract to sell the unit made by the developer during that time  period. Also, all contracts entered into by the developer during the 120-day period following delivery of the notice of intent must conspicuously disclose the existence of the right of first refusal. The tenant may exercise the right of first refusal within 30 days of receiving notice from the developer that a contract to sell the unit has been executed, even if the 30 days extends beyond the 120-day period following delivery of the notice of intent, as long as the contract was executed inside of the 120-day period. The recording of the deed conveying the unit to the buyer which contains language indicating that the tenant of the unit either waived or failed to exercise the right of first refusal or had no right of first refusal with respect to the unit, eliminates any tenant claim to the unit arising under the right of first refusal.  However, the tenant may still have a claim against the developer for damages arising out of the right of first refusal. 765 ILCS 605/30(e).

For 30 days after the delivery of the notice of an executed contract subject to a tenant’s right of first refusal, the developer is to grant the tenant access to any portion of the building to inspect its features or systems, and access to any reports, warranties, or other documents in the possession of the developer which reasonably pertain to the condition of the building.  Refusal of the developer to grant such access (subject to reasonable limitations) is a business offense, subject to a fine of $500.  765 ILCS 605/30(f).

Tenants have the right to privacy against undue showing of their units to prospective purchasers. The developer may show such units only a reasonable number of times and at appropriate hours, and only during the last 90 days of any expiring tenancy. 765 ILCS 605/30(h).

If the owner fails to provide a tenant with the notice of intent to convert required by §30 of the Act, the tenant permanently vacates the premises as a direct result of the nonrenewal of his/her lease by the owner, and the tenant’s unit is converted to a condominium unit, then the owner is liable to the tenant for (1) the tenant’s actual moving expenses incurred when moving from the subject property, capped at $1,500; (2) three month’s rent at the subject property; and (3) reasonable attorney’s fees and court costs.  765 ILCS 605/30(a)(2).

 Disclosure Requirements

Pursuant to §22 of the Act, before the initial sale or offering for sale of a condominium unit, the seller must provide copies of the following:

  1.  the declaration;
  1. the bylaws of the condominium association;
  1. a projected budget for the unit to be sold, including an estimated monthly payment for the unit for maintenance or management of the condominium property and monthly charges for the use of recreational facilities; and
  1. a floor plan of the unit to be purchased and the street address of the unit, if any, and if the unit has no street address, the street address of the project. 765 ILCS 605/22 (a)-(d).

In addition, §22 of the Act provides that if the development is a conversion condominium project, copies of the following must be provided:

  1. the amount of any initial or special condominium fee due from a purchaser at the time of closing and the basis for this fee;
  1. information, if available, on the actual expenditures made on all repairs, maintenance, and upkeep of the building being converted for the last two years that the building was occupied (this information should be presented in tabular form per unit, together with the proposed budget charges for each unit);
  1. a description of any provisions made in the budget for reserves for capital expenditures and the basis thereof, and if no provision is made for reserves, a statement to that effect must be made;
  1. for developments of more than six units, an engineer’s report is required as to the present condition of all structural components and major utility installations in the condominium, together with dates of construction, installation, major repairs and expected useful life of such component, and the estimated cost of replacing such items; and
  1. any release, warranty, certificate of insurance, or surety required by §9.1 of the Act.

In this regard, §9.1 of the Act provides that before conveying a unit, a developer shall record and furnish a purchaser with releases of all liens affecting that unit and its common element interest which the purchaser does not otherwise expressly agree to take subject to or assume, and the developer shall provide a surety bond or substitute collateral for or insurance against liens for which a release is not provided.  After conveyance of such unit, no mechanics lien shall be created against such unit or its common element interest by reason of any subsequent contract by the developer to improve or make additions to the property.  765 ILCS 605/9.1.  Therefore, a developer will need to ensure it has discussed the condominium conversion process with the existing lienholders against the real property to be converted, and have arrangements in place that will allow conveyance of units free of existing liens.

All of this information which is available must be furnished to the prospective buyer prior to execution of the contract.  Thereafter, no changes or amendments may be made in any of the items furnished to the prospective buyer which would materially affect the rights of the buyer or the value of the unit without obtaining the approval of 75 percent of buyers then owning an interest in the condominium.

When all the information is not available at the time the contract is formed, the buyer’s obligation to close is voidable up until five days after all of the required information is available, or the closing occurs, whichever is earlier.

Failure of the seller to make full disclosure under §22 of the Act entitles the prospective buyer to rescind the contract at any time before closing, and to receive a refund of all deposits made, plus statutory interest.  765 ILCS 605/22 (e).

Other Required Disclosures for Residential Units

When the sale is related to a residential unit, the seller will also be required by Illinois law to provide a Residential Real Property Disclosure Report, setting forth the knowledge of the seller regarding possible defects as to a number of different property items.  See 765 ILCS 77/20.

In addition, federal law requires that the seller disclose known lead-based paint and/or lead based paint hazards that exist in residential real property (or state that the seller has no knowledge of the same), provide the buyer with all available property reports on lead-based hazards, provide a prescribed pamphlet on lead-based hazards, and offer the buyer the opportunity a 10-day opportunity to test for lead-based paint and associated hazards.  42 U.S.C. §4852d(a)(1)(B).

Finally, the Illinois Radon Awareness Act (420 ILCS 46/1, et seq.), requires sellers to provide buyers of residential real estate with the following disclosures:  (1) the pamphlet entitled “Radon Testing Guidelines for Real Estate Transactions” as published by the Illinois Emergency Management Agency (IEMA), (or an equivalent pamphlet approved for use by IEMA), and (2) the Illinois Disclosure of Information on Radon Hazards, detailing the potential threats to human health related to radon exposure and requiring the seller to disclose knowledge of the same related to the property, all as set forth in §10 of the Illinois Radon Awareness Act.  420 ILCS 46/10.

Of particular relevance to the conversion of multi-story structures, §20(9) of the Illinois Radon Awareness Act does not apply to “[t]ransfers of any residential dwelling unit located on the third story or higher above ground level of any structure or building, including, but not limited to, condominium units and dwelling units in a residential cooperative.”  420 ILCS 46/20(9).

Conclusion

 In addition to the numerous statutory requirements and practical considerations associated with any condominium development in the State of Illinois, undertaking a conversion condominium adds layers of complexity and requires significant advanced planning.  The conversion process should be undertaken with care and diligence, and the developer will likely need to engage numerous professionals (e.g., architect, attorney, engineer, surveyor) in order to produce the required disclosure materials, and ensure compliance with the Act.

Emerging Lawyers

MHT Partners Herman and Oswald recognized as Illinois Emerging Lawyers

Miller, Hall & Triggs, LLC,m congratulates its Partners, Joshua D. Herman and Christopher D. Oswald on their recognition as 2015 and 2016 Illinois Emerging Lawyers.

Emerging Lawyers Selection Process

Emerging Lawyers have been identified by their peers to be among the TOP LAWYERS who are age 40 or younger unless they have practiced for no more than 10 years. Less than 2% of all lawyers licensed in each state have received the distinction of Emerging Lawyer.

THE RESEARCH AND SELECTION PROCESS
Emerging Lawyer selection arises from Law Bulletin Publishing Company’s annual surveys that are mailed to all Leading Lawyers in the state. The survey asks Leading Lawyers to confidentially share the names of lawyers whom they believe have jumped quickly from the starting gate and have proven themselves professional, ethical, and experienced at an early point in their legal career. Unlike Leading Lawyers surveys, each Leading Lawyer is permitted to recommend one lawyer from their own law firm for every two lawyers recommended from outside of their firm.

SELECTION CRITERIA FOR LAW BULLETIN’S EMERGING LAWYERS
Any lawyer licensed in a given state who has proven to be of exceptional character and has conveyed outstanding aptitude for the practice of law in the early stage of their career. Emerging Lawyers must be 40 or younger unless they have practiced for no more than 10 years.

The Levee District Logo

MHT Assists City Redevelop a Vibrant New Downtown

Led by Dennis R. Triggs, a team of attorneys that included Michael J. Tibbs, Scott A. Brunton, Mark D. Walton, Christopher D. Oswald, and Joshua D. Herman of Miller, Hall & Triggs, LLC, Peoria Illinois, represented the City of East Peoria and assisted the City with redeveloping an 86-acre brownfield and former manufacturing site into a vibrant new downtown area, which has been designated as “The Levee District” of East Peoria. Miller, Hall & Triggs assisted the City with nearly every aspect of this new downtown project, including the acquisition of property, public financing through bond issues and related financing, establishing a Tax Increment Financing District encompassing the project area, establishing Business Service Districts within the project area for servicing the public debt obligations related to the infrastructure improvements, overseeing the bid letting and contracting stages of numerous infrastructure projects that totaled approximately $36 million, negotiating and completing numerous property acquisitions, and negotiating several development agreements with private developers, and an intergovernmental agreement with other local governmental units for the redevelopment of the project area.

While this project is ongoing, The Levee District formally opened for business in the Spring of 2013. Public investment in this project has exceeded $80 million, and private investment has exceeded $100 million. This project has brought Costco and Target to the retail portions of the project area, along with numerous additional restaurants, retailers, and businesses. Further, Morton Community Bank has constructed an impressive downtown banking center and office building, which is located near a new Holiday Inn & Suites. The project area also includes a state-of-the-art public library as a part of a new civic complex and outdoor plaza site, and an open concept allowing for easy pedestrian connection along with biking trails.

Besides working with the East Peoria City officials and staff, the Miller, Hall & Triggs team has worked with the State of Illinois, the U.S. Army Corps of Engineers, the Illinois Department of Transportation, the Illinois Department of Nature Resources, the Illinois Department of Revenue, the Fondulac Library District, the East Peoria Sanitary District, the East Peoria Levee and Draining District, private developers, and public and private lenders in the course of working on this broad and complex project.

New Laws for Law Enforcement Agencies in 2016

Officer-Involved Deaths, Body Cameras, Terry Stops, Towing of Vehicles, and More

By Kateah M. McMasters

kateah.mcmasters@mhtlaw.com

On January 1, 2016 several new laws regulating law enforcement agencies and their activities went into effect.  A brief summary of each law is provided below.

Public Act 99-352

Law Enforcement Officer-Worn Body Camera ActThe Act provides that any agency that elects to use body cameras must adopt a written policy relating to their use, provide training to those officers that use the cameras, and provide an annual report to the Illinois Law Enforcement Training Standards Board (the “Board”).  Note that the Act only applies to law enforcement agencies that elect to use body cameras; it does not require agencies to use body cameras.

The annual report required by the Act must be submitted to the Board on or before May 1st of each year, and include (1) a brief overview of the agency’s composition; (2) the number of officers using body cameras; (3) the number of body cameras being used; (4) any technical issues with equipment and how they are fixed; (5) a brief description of the review process used by supervisors; and (6) the time, date, precinct, offense charged, date charges filed, and any other relevant information for each recording that is used in the prosecution of an offense.

The Act also provides that the body camera recordings are generally exempt from disclosure under FOIA.  However, such recordings must be disclosed in accordance with FOIA in any of the following situations: (1) the subject is a victim or witness and the agency obtains written permission from the subject or his legal representative; (2) the recording is flagged due to the filing of a complaint, discharge of a firearm, use of force, arrest or detention, or resulting death or bodily harm; or (3) the subject of the recording, his attorney or his legal representative requests it.

Additionally, the Law Enforcement Camera Grant Act (50 ILCS 707/5) provides financial assistance to municipalities for the purpose of purchasing body cameras.

Terry StopsSection 11-212 of the Illinois Vehicle Code has been amended to include that officers complete a “uniform pedestrian stop card” (“Stop Card”) for a pedestrian that is frisked, searched, or arrested.  A Stop Card must include the date; time; location; gender of the pedestrian; alleged reasons for the stop; whether a frisk was conducted; reasons for the frisk; whether the frisk was by consent or other means; whether contraband was found during the frisk; type and amount of contraband seized; whether a search was conducted; reasons for the search; whether the search was by consent or other means; whether the stop resulted in a warning, ticket or arrest; and the name and badge number of the officer.

The forms currently used by a majority of law enforcement agencies do not contain all of the required information.  Therefore, it is recommended that an agency prepare or obtain new forms or modify existing forms to comply with the law.

Additionally, Section 107-14 of the Illinois Code of Criminal Procedure was amended to include a requirement for officers to issue a “stop receipt” when a person is stopped in a public place, the officer reasonably believes the person is committing, about to commit, or has committed a crime (excluding traffic offenses and ordinance violations), and the officer conducts a frisk or search.  The stop receipt must contain the officer’s name, badge number, and reason for the stop.  However, the officer is not required to issue a stop receipt if it is impractical, impossible or exigent circumstances exist.

The key difference between a “stop card” and “stop receipt” is the nature of the violation.  A stop card is issued to pedestrians that are stopped based upon a violation of the Illinois Vehicle Code, while a stop receipt is issued to any individual that is temporarily stopped for questioning in relation to criminal activity and not subject to arrest.

Police and Community Relations Improvement ActThe Act requires all law enforcement agencies to have a written policy regarding the investigation of officer-involved deaths.  An officer-involved death is the death of any individual caused by an act or intentional omission of a law enforcement officer while acting within the scope of his employment.

The policy must provide that the investigation shall be conducted by at least 2 investigators who are not employed by the agency involved in the death, and the lead investigator must be certified by the Illinois Law Enforcement Training Standards Board (the “Board”) as a Lead Homicide Investigator.  If the death involves a motor vehicle accident, the policy must provide that at least one investigator shall be certified by the Board as a Crash Reconstruction Specialist.  Finally, the policy must require the investigators to provide a report to the State’s Attorney or to publicly release it if the State’s Attorney declines to prosecute.

The Act permits an agency to conduct an internal investigation into an officer-involved death as long as it does not interfere with the outside investigation required by the Act.

Uniform Crime Reporting ActThe Act requires all law enforcement agencies to submit the following information to the Illinois State Police (ISP) on a monthly basis: a report for any arrest-related death (not including death of an officer), discharge of a firearm by an officer causing a non-fatal injury (beginning January 1, 2017), a report on hate crimes, a report on any alleged commission of a domestic crime, data on specific offenses selected by ISP, and data on offenses and incidents reported by schools.

In addition to the monthly reports, beginning July 1, 2016, all agencies must submit information regarding a criminal homicide as required by ISP rules and regulations on a quarterly basis.

Officer Professional Conduct Database:  The Illinois Police Training Act was amended to now require that all law enforcement agencies notify the Illinois Law Enforcement Training Standards Board (the “Board”) when there has been a final determination of a willful violation of agency policy, official misconduct, or violation of law if an officer is discharged as a result of the violation or resigns during the course of an investigation.  The agency must notify the Board of the nature of the violation within 30 days of the final determination.

Use of ForceThe Illinois Criminal Code was amended to prohibit peace officers from using chokeholds in the performance of their duties, unless deadly force is justified under the Criminal Code.  A chokehold is defined as “applying any direct pressure to the throat, windpipe, or airway of another with the intent to reduce or prevent the intake of air.”

Public Act 99-438

Tow Rotation ListThe Act amends the Illinois Vehicle Code by requiring any law enforcement agency whose duties include the patrol of highways to maintain a tow rotation list.  The list must be used by officers when authorizing any vehicle tow within its jurisdiction.  The agency is allowed to maintain multiple lists covering different geographic locations within its jurisdiction; a towing service may be included on more than one list.

Any towing service may apply for inclusion on the rotation list by submitting an application in the form and manner provided by the law enforcement agency.  In order to be included on the rotation list, a towing service must meet the requirements set forth in the Act (see 625 ILCS 5/4-203.5).  An agency may select which towing service(s) meeting these requirements will be included on the rotation list.  Complaints regarding inclusion on the list should be referred in writing to the head of the agency; however, an agency cannot be held liable for excluding a service from the list.

When an officer initiates a vehicle tow, he must inform his agency that a tow has been authorized.  The agency must then select a towing service from the list and contact the service directly.  Towing services must be contacted in the order listed; however, in the event a service is unavailable, the next service on the list should be contacted.  An agency may also deviate from the order listed in the event of an emergency, or if the officer or agency determines the service is not properly equipped to handle the tow.  Whenever a towing service that has not been requested arrives on scene, the officer is obligated to tell that service to leave.

 

Municipal Tow Fees

Recent Guidance from Illinois Courts May Limit the Amount that May be Collected

By Katherine Swise

katherine.swise@mhtlaw.com

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.

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.