RECENT LITIGATION

By THOMAS W. KELTY, Chief Counsel, Illinois Municipal League

The following is a synopsis of selected decisions of the Illinois Appellate Courts, the Illinois Supreme Court and Federal Courts that have been rendered since the 1986 Illinois Municipal League Annual Conference.
There have been a number of notable decisions in the past year and we have attempted to highlight those which appear most significant to municipal attorneys and public officials.

ILLINOIS APPELLATE COURT DECISIONS

ANNEXATION

People ex rel Ryan vs. Village of Bartlett
502 N.E.2d 443, 151 Ill. App. 3d 533, 104 Ill. Dec. 180
In a quo warranto action challenging an annexation of land by the village pursuant to Paragraph 7-1-1 of the Municipal Code, the Appellate Court held that the Village was entitled to annex property, which had one boundary contiguous to a forest preserve district but was bounded by roads and other unincorporated property on other sides. According to the court, "only" within the meaning of Paragraph 7-1-1 which permits a municipality to annex territory that is separated only by a forest preserve district, meant that only the forest preserve separated the territory which was not contiguous to the Village. It did not mean that all boundaries of both the territory to be annexed and the annexing municipality had to be separated only by the forest preserve district.

ATTORNEY'S FEES

Wayne Township Board of Auditors vs. Ludwig & Paeth
507 N.E.2d 199, 154 Ill. App. 3d 899, 107 Ill. Dec. 535
Defendant village officer was entitled to hire independent counsel and to subsequent award of attorney's fees when he was sued by the village in his official capacity and there existed a conflict of interest with the village attorney.

BILLBOARD REGULATION

Dingeman Advertising vs. Village of Mt. Zion
510 N.E.2d 539, 157 Ill. App. 3d 461, 109 Ill. Dec. 671
The Highway Advertising Control Act (Ill. Rev. Stat., 1985, Ch. 121, Par. 501 et seq.) does not preempt all municipal zoning controls and establishes, as a minimum advertisement requirement for all commercial areas adjoining Federal-aid primary highways, the same maximum limitation set forth in the Act. The holding finds that certain sections of the Act are in conflict and in reviewing the conflicting sections holds that Mt. Zion has the right to regulate the size, lighting and spacing of advertising signs consistent with "customary use." (Petition for Leave to Appeal DENIED by Illinois Supreme Court, October 20, 1987, Docket #65632.)

DEMOLITION

Turpen vs. City of St. Francisville
495 N.E.2d 1351, 145 Ill. App. 3d 891, 99 Ill. Dec. 616
In an action for wrongful demolition. Appellate Court held that because the mayor of the defendant's city had the authority to approve emergency demolition of a building, demolition was a proper action by the city. Therefore, the court said that the defendant municipality was liable for damages sustained by the plaintiff in the demolition of the structure.

ELECTION LAW

In re: Petition to Change Form of Government of Village of Maywood
507 N.E.2d 151, 154 Ill. App. 3d 754,107 Ill. Dec. 487
Trial Court properly considered written objections to sufficiency of petition for certification for vote to change form of municipal government where the objections were filed after the initial hearing but before subsequent hearing. Election Code Section 28-4 permits Trial Court to conduct initial and subsequent hearing and to consider all objections properly presented on or before hearing date. Petition insufficient as matter of law for failure to include proposition regarding abandonment of present managerial form of government; Illinois Municipal Code Paragraphs 5-5-1 and 5-5-6 require a proposition for abandonment of managerial form of government to be presented to the electors.

EMINENT DOMAIN

City of Chicago vs. American National Bank
497 N.E.2d 413, 146 Ill. App. 3d 784, 100 Ill. Dec. 435
Condemnation proceeding was not void because the City of Chicago failed to make prima facie showing the public necessity required that it take defendant's property in eminent domain proceeding. The Appeals Court held: (1) that a municipality is not required to show that the property is being taken for public use in order for the court to acquire jurisdiction; (2) the exercise of the right of eminent domain is not a proper

December 1987 / Illinois Municipal Review / Page 15

subject for judicial interference unless to prevent a clear abuse of power; (3) where the government attempts to reach an agreement with the property owner regarding the terms of compensation, that owner cannot complain that they are not being properly compensated; and (4) defendants cannot complain that plaintiffs subjected them to duress where they fail to show that plaintiffs engaged in wrong doing or threaten them with wrongful action so that they were deprived of their free will.

EMPLOYEES-ARBITRATION

City of Decatur vs. Illinois Labor Relations Board
500 N.E.2d 573, 149 Ill. App. 3d 319, 102 Ill. Dec. 680
The Illinois Public Labor Relations Act does not require a city to bargain in good faith with the exclusive representative of its employees over proposal that matters of discipline, currently resolved by reference to the Civil Service Provision of the Municipal Code (Ch. 24, Par. 10-1-1, et seq.), be resolved by mandatory arbitration.

EMPLOYEES-HANDBOOK

Pundt vs. Millikin University
145 Ill. App. 3d 990, 496 N.E.2d 291, 99 Ill. Dec. 716
Where employer provides permanent employee with handbook that states its purpose, indicates that the employee wall be discharged only for good cause, and specifies grounds for good cause, employer cannot later say that it need not follow handbook and is not contractually bound thereby.

ENVIRONMENTAL PROTECTION

City of Lake Forest vs. Pollution Control Board
497 N.E.2d 181
Pollution Control Board exceeded its authority in issuing a Cease and Desist Order against the City of Lake Forest after adoption of a leaf burning ordinance by the city. The ordinance did not violate an Environmental Protection Act provision prohibiting the open burning of "refuse". The term "other discarded material" as defined in the Act did not include leaves.

LIQUOR LAW

Two Kats, Inc. vs. Village of Chicago Ridge
497 N.E.2d 1314, 147 Ill. App. 3d 440, 101 Ill. Dec. 1
Liquor Control Act empowered the Village of Chicago Ridge to pass an ordinance reducing the hours during which liquor licensees may operate their business. Court determined that plaintiffs in the action failed to prove that the ordinance was arbitrary, capricious and unreasonable. Court concluded that the validity was not affected by the impact it might have on the plaintiffs' businesses, by the later closing hours in effect in surrounding communities or by the absence of an official explanation for its adoption.

OFFICERS AND EMPLOYEES

Spicer vs. City of Chicago
500 N.E.2d 633, 149 Ill. App. 3d 68, 102 Ill. Dec. 740
Under Chapter 24, Paragraph 8-10-15, appointment of the City Purchasing Agent is to be made jointly by the mayor and city council. Where Spicer named by the mayor to be "Acting Purchasing Agent" but the mayor withdrew the appointment before council took action, council's consenting vote is not valid because the appointment is no longer before the council.

POLICE

Lewis vs. Hayes
505 N.E.2d 408,152 Ill. App. 3d 1020,106 Ill. Dec. 102
Although probationary police officers ordinarily may be discharged without cause where a municipality has enacted rules and regulations providing greater protection, the municipality must abide by those rules and regulations.

POLICE OFFICERS

Burgett vs. City of Collinsville, Bd. of Fire and Police Comms.
500 N.E.2d 951, 149 Ill. App. 3d 420, 102 Ill. Dec. 850
Finding of Disciplinary Board that police officer left city limits and concealed patrol car on private property did not support officer's dismissal, where officer testified that he had been watching a home in the area which had been burglarised in the past, where home was only thirty (30) feet outside of the city limits, where the officer promptly responded to the only call received during the three (3) hour period in question and where the officer did not cause a substantial waste of departmental manpower in an attempt to locate him.

POLLUTION CONTROL

City of Lake Forest vs. Pollution Control Board
497 N.E.2d 181, 146 Ill. App. 3d 848, 100 Ill. Dec. 301
Pollution Control Board (PCB) did not have authority to order the City of Lake Forest to repeal its leaf burning ordinance. The Pollution Control Board had found Lake Forest to be in violation of Sections 9(a) and 9(c) of the Environmental Protection Act by reason of the adoption of its leaf burning ordinance in order for the city to cease and dismiss from further violations of the Act. The key question on appeal was whether the PCB had the authority to order Lake Forest to repeal the ordinance. The Appeals Court considered the powers granted to the PCB by the legislature and found no arguable authority permitting it to interfere in a purely governmental function as it did in this case.

ROAD CONSTRUCTION INJURIES ACT

Thoman vs. Village of Northbrook
148 Ill. App. 3d 356, 499 N.E.2d 507
In a case of first impression, the court held that the Road Construction Injuries Act exempts from liability government agencies engaged in road construction or maintenance as well as their employees and officials.

TAXATION

Chicago Health Club, Inc. vs. Picur
508 N.E.2d 742, 155 Ill. App. 3d 482, 108 Ill. Dec. 431
Four percent (4%) tax on memberships and health

Page 16 / Illinois Municipal Review / December 1987

clubs and other recreational clubs determined to be constitutional. Appellate Court determined that the tax was not an impermissible "occupation" tax and that health clubs are "amusements" within the meaning of the Illinois Municipal Code. (Petition for Leave to Appeal ALLOWED by Illinois Supreme Court, October 20, 1987, Docket #65386.)

TORT IMMUNITY

Luber vs. City of Highland
502 N.E.2d 1243,151 Ill. App. 3d 758,104 Ill. Dec. 583
Plaintiff's action against municipality is based on alleged negligence of police officer in releasing drunk driver suspect on own recognizance following arrest and who later struck parked vehicle containing the plaintiff was within the purview of Chapter 85, Paragraphs 4-102 and 4-107. The action was not within the "special duty" exception under the Tort Immunity Act as the plaintiff was not under the direct control of agents or employees of the defendant at the time of the injury.

Lane vs. Chicago Housing Authority
498 N.E.2d 604, 147 Ill. App. 3d 876,101 Ill. Dec. 280
Filing a complaint of itself does not provide notice under the Tort Immunity Act. Plaintiff claimed he was injured on April 11, 1984 in a fall on property owned and maintained by a housing authority. On April 8, 1985, the plaintiff filed this complaint without filing the notice required by Chapter 85, Paragraph 8-102. On April 12, summons and complaint were served on the housing authority. Trial Court dismissed the action on the grounds that the complaint was served more than a year after the date of the alleged injury. Appellate Court held "we cannot say that the filing of a complaint even of itself provides notice to a defendant who has not yet been served." (Note: The Tort Reform Act has repealed the required notice and simply requires filing of complaint.)

Hernandez vs. Village of Cicero
502 N.E.2d 1226, 104 Ill. Dec. 566
Two successive stops of motorists for speeding did not place motorists in custody so as to give rise to special duty of care by police officers leading to liability and negligence when motorist, who was drunk, subsequently was involved in a fatal automobile accident.

Tomas vs. Universal Health Services, Inc.
145 Ill. App. 3d 663, 495 N.E.2d 1186
Section 8-102 of the Tort Immunity Act requiring notice to a unit of local government by any person who is about to commence a civil action for damages within one year from the date of injury or cause of action does not apply to actions brought pursuant to Federal Civil Rights Statutes including Title 42 U.S.C. Sections 1983 and 1988.

Nicholson vs. City of Danville
498 N.E.2d 273, 147 Ill. App. 3d 682, 101 Ill. Dec. 91
City of Danville held not liable for trip and fall accident on state maintained sidewalk located within municipality. In an accident where plaintiff is injured in a fall on a sidewalk which is located in territory annexed by the city, without a showing of actual jurisdiction or control, or proof of improvements made by city, the city owed no duty to maintain that portion of the sidewalk in a safe condition.

ZONING

York vs. Village of Wilmette
498 N.E.2d 712, 101 Ill. Dec. 388
Village of Wilmette granted a special use permit with exceptions to a developer to construct an apartment building in an area zoned for townhouse residences. York brought an action against the defendants seeking a declaration that the permit was invalid and requesting an injunction preventing the developer from constructing the building. Appellate Court held that evidence supported finding that ordinance granting special use for housing for the elderly bore a substantial relation to the public health, safety and welfare; that gain to the public outweighed the destruction of property values and hardship opposed upon individual property owners; and that an ordinance amending the village's zoning code by creating a special use for housing for the elderly with exceptions if necessary, which specifically added the special use to the zoning code's list of special uses for townhome residence zoning districts and which was found to serve the public convenience, was unambiguous and valid.

Tiskilwa Economic Development Corporation vs. Zoning Board of Appeals of the Village of Tiskilwa
500 N.E.2d 66,102 Ill. Dec. 444
The Zoning Board of Appeals is not empowered to reverse its own decision granting variances of zoning ordinance when those variances are challenged by the subordinate administrative officer. A Zoning Board of Appeals does not have the standing to question the validity of its own earlier order.

Union Natl Bank & Trust Co. of Joliet vs. Village of New Lenox
152 Ill. App. 3d 919, 565 N.E.2d 1,105 Ill. Dec. 875
Zoning ordinance of the village held unconstitutionally vague when it did not prescribe standards or criteria upon which the village could determine whether a proposed use for property, which was not specifically listed, was permitted, prohibited or a special use. The Appeals Court decided that an ordinance is unconstitutionally vague when men of common intelligence must necessarily guess at its meaning. Court found that the ordinary person exercising ordinary common sense would have had to guess as to whether an asphalt plant was a permitted, a special or a prohibited use under the ordinance. (Petition for Leave to Appeal DENIED by Illinois Supreme Court, October 7, 1987, Docket #65222.)

Wells vs. Village of Libertyville
505 N.E.2d 740,106 Ill. Dec. 193
Village was not required to provide actual notice to adjacent property owners of zoning proceedings.

December 1987 / Illinois Municipal Review / Page 17

When the village did send out notices of rezoning hearings, it did so as a courtesy to nearby property owners, which did not rise to the level of self-imposed legally binding obligation to notify adjacent property owners of pending rezoning petitions. Village was not estopped from rezoning property based upon previous instances of mailing actual notice of rezoning proceedings to adjacent property owners.

LaSalle National Bank vs. Village of Bloomingdale
507 N.E.2d 517, 154 Ill. App. 3d 918,107 Ill. Dec. 604
Legislative Act of Village Board denying commercial development in residential land use area is not improper even though development plan complied with some standards set by Planned Unit Development (PUD) Ordinance.

ILLINOIS SUPREME COURT DECISIONS

DISABILITY PENSION

Johnson vs. Retirement Board of Policeman's Annuity & Benefit Fund
114 Ill. 2d 518, N.E.2d 718,104 Ill. Dec. 221
Police officer who slipped and injured his back while crossing intersection to respond to citizen's call for assistance regarding traffic accident was engaged in "active duty" within meaning of statute governing duty disability benefits, and officer was thus entitled to duty disability benefits amounting to seventy-five percent (75%) of his salary.

DUE PROCESS

Collura vs. Board of Police Commissioners of the Village of Itasca
113 Ill. 2d 361, 101 Ill. Dec. 640
Failure of a member of the Board of Fire and Police Commissioners to recuse herself from second hearing concerning police officer's discharge did not deny the officer his due process right to a fair and impartial hearing, even though the member was present at the first discharge hearing at which polygraph results were erroneously admitted into evidence.

EMPLOYEES — WORKERS' COMPENSATION

Peoria County Belwood Nursing Home vs. Industrial Commission
505 N.E.2d 1026,115 Ill. 2d 524,106 Ill. Dec. 235
Claim filed for workers' compensation, alleging development of carpal tunnel syndrome as result of employment, held that: (1) Commission's finding that workers' compensation claimant suffered accidental injury under Workers' Compensation Act was not against manifest weight of evidence, and (2) date of injury of workers' compensation claimant was last day that claimant worked before fact of her injury and its causal connection to her employment became apparent to her.

EMPLOYEES-RETALIATORY DISCHARGE

Boyles vs. Greater Peoria Mass Transit District
113 Ill. 2d 545, 499 N.E. 435,101 Ill. Dec. 847
A municipal employee may maintain an action against a public employer for retaliatory discharge and obtain an award for compensatory damages. However, the Tort Immunity Act precludes recovery of punitive damages in this or any other civil action.

EMPLOYEES-HANDBOOK

Duldulao vs. Saint Mary of Nazareth Hospital Center
505 N.E.2d 314, 115 Ill. 2d 482, 106 Ill. Dec. 8
Presumption that employee hired for indefinite term was "employee at will" could be rebutted by evidence that parties contracted to contrary; language in employee handbook, that nonprobationary employee could be discharged only after written notice, was sufficient to modify at-will nature of plaintiff's employment.

ENVIRONMENTAL PROTECTION

Pesticide Public Policy Foundation vs. Village of Wauconda
510 N.E.2d 858, 117 Ill. 2d 107, 109 Ill. Dec. 790
The issues in this case were certified by the 7th Circuit Court of Appeals to the Illinois Supreme Court. The court held that the Village of Wauconda, a non-home rule unit of local government, is empowered by the Illinois Municipal Code to enact a pesticide regulation ordinance challenged in this litigation. However, the court held that Wauconda's exercise of its power to enact this ordinance has been preempted by two state statutes, namely, the Illinois Pesticide Act of 1979 and the Structural Pest Control Act.

PREVAILING WAGE ACT

People ex rel Bernardi vs. City of Highland Park
_ Ill. 2d —, Reheard by Ill. S. Ct., May 1987
Prevailing Wage Act held not to preempt inconsistent home rule activity or to permit only consistent activity. A determination to conform with the provisions of the Prevailing Wage Act is a decision within the home rule powers of a municipality. Wages to be paid on public works projects by home rule municipalities and counties are matters pertaining to the government and affairs of the local unit and, as such, may be determined by the local unit. This opinion was rendered by the Supreme Court in December of 1986, however, the case has been reheard and as of the date of this report no decision on the rehearing has been rendered.

RESPONDEAT SUPERIOR

Stewart vs. Village of Summit
499 N.E.2d 450, 114 Ill. 2d 23, 101 Ill. Dec. 862
Respondeat Superior liability of a defendant village is extinguished by a covenant not to sue entered into by

Page 18 / Illinois Municipal Review / December 1987

the plaintiff and an employee of the village who drove the truck that injured the plaintiff.

RETALIATORY DISCHARGE

Gonzalez vs. Prestress Engineering Corporation
503 N.E.2d 308, 115 Ill. 2d 1,104 Ill. Dec. 751
Actions in tort claiming retaliatory discharge for exercising rights under the Workers' Compensation Act (1) are not preempted by Federal Labor Law; and, (2) do not require exhaustion of grievance procedures under a collective bargaining agreement prior to filing of action. The Workers' Compensation Act is the result of a "clear mandate of Illinois public policy" and therefore is outside of the scope of Federal Labor Laws and collective bargaining agreements.

SEAT BELT LAW

People vs. Kohrig
498 N.E.2d 1158, 113 Ill. 2d 384, 101 Ill. Dec. 650
Statute requiring drivers and front seat passengers to wear seat belts while riding in automobiles and pickup trucks held constitutional. The Supreme Court rejected reasoning by defendant that the law improperly seeks to regulate a question of personal choice that has no real bearing on the safety of others.

FEDERAL COURT DECISIONS

ANTI-TRUST

City Communications, Inc. vs. City of Detroit
660 F. Supp. 932
The State Action Exemption applied to immunize the city from antitrust liability in connection with the establishment of a cable television system for the city. The Michigan Constitution expresses the state policy to allow municipalities to grant or withhold franchises. That policy had the forseeable potential of authorizing refusal to deal that could have anticompetitive results.

Commuter Transp. Systems, Inc. vs. Hillsborogh County Aviation Authority
801 F. 2d 1286
A local government may appeal a trial court's decision to deny immunity from antitrust suit under the state action doctrine before going to trial on the underlying antitrust action.

ANTITRUST — CABLE TELEVISION

New York Citizens' Committee on Cable TV vs. Manhattan Cable TV, Inc.
651 F. Supp. 802
An association of cable television subscribers stated a claim of monopolization based on an allegation that the only company authorized by the city to provide cable television had refused to grant "access" to its system to pay cable programmers with which it was not affiliated. The authority given to a municipality to grant cable franchises, while insulating the city's decision to grant only one cable franchise and exclude other operators as competitors, did not also protect the cable operators' exclusion of competitors in a market in which it acted as a middleman between competing programmers and consumers.

CABLE TELEVISION

Erie Telecommunications, Inc. vs. City of Erie
659 F. Supp. 580
Franchise fees paid pursuant to agreement for exclusive franchise are not to be limited in an amount to the cost of regulating compliance under the franchise agreement.

CIVIL RIGHTS

Hibma vs. Odegaard
769 F. 2d 1147
State statute which provided for payment of damages by state or political subdivision of which a defendant is an officer or employee, which was in effect at the time accused employee was found to be acting within the scope of employment when they violated plaintiff's constitutional rights, applied to civil rights case against them, not the version in effect at the time that the matter is adjudicated.

Walker vs. City of Chicago
1645 F. Supp. 269
Plaintiff's allegation of a single isolated incident of a constitutional deprivation was sufficient to state a Section 1983 Civil Rights Claim against the municipality. A single incident of constitutional deprivation can establish a municipal "policy" when the incident results from a direct command by a municipal policymaker. Court adopts definition of "policymaker" enunciated by Supreme Court in Pembaur vs. Cincinnati,_U.S._, 106 S. Ct. 1292, as "officials responsible for establishing final policy with respect to subject matter."

Coleman vs. Smith
814 F. 2d 1142
A public employee against whom a judgment for punitive damages has been rendered under 42 U.S.C. 1983 is entitled to indemnification from his public employer, (See, however, Section 2-302 of the Tort Immunity Act.)

Punton vs. City of Seattle
805 F. 2d 1378
A police officer who was reinstated with back pay, after a state court determined that his discharge violated due process, was not then entitled to additional relief in Federal Court under Section 1983 for emotional distress, damages and attorney's fees not available in the state court under the type of procedure that he chose to follow.

December 1987 / Illinois Municipal Review / Page 19

Alvarado vs. City of Chicago
648 F. Supp. 994
Municipal liability under Section 1983 attaches to a single isolated incident of constitutional deprivation only when a deliberate choice to follow a course of action is made from among various alternatives by the official responsible for establishing final policy. Thus, a former police officer's allegation that he voluntarily resigned from the police department while acting under duress failed to state a Section 1983 claim against either the city or the police board. The officer claimed he was deprived of his rights as a result of the city's failure to properly train employees and to promulgate proper guidelines for the resignation or termination of employees. However, the officer did not claim that the policy towards terminated police officers resulted from a conscious choice to improperly train and supervise active policemen.

EMPLOYEE DRUG TESTING

Lovvorn vs. City of Chattanooga
647 F. Supp. 875
A proposed testing procedure by the City of Chattanooga invalidated as interfering with a fire fighter's subjective expectation of privacy. The fire department had conducted no investigation of drug use and there had been no indication that any fire fighters' performance had been affected by drug use. The court refused to permit an exception to the "reasonable suspicion" requirement, such as an administrative search, since the city failed to provide clearly defined standards to alleviate privacy concerns.

EMPLOYEES

Gniotek vs. City of Philadelphia
808 F. 2d 241
The suspension of a police officer without pay with the intent of obtaining a dismissal itself constitutes a "defacto dismissal" triggering a due process right to a presuspension opportunity to respond to the charges.

EMPLOYMENT DISCRIMINATION

Maxwell vs. City of Tuscon
803 F. 2d 444
A female city employee was discriminated against on the basis of sex when her position was eliminated and replaced with a lower paying position. The city alleged that the employee's lower pay was a result of a job reclassification instituted in accordance with decreases in staff, budget and duties. However, the employee presented evidence that the duties and responsibilities of her position had actually increased.

FIRE PROTECTION

Cincinnati Insurance Company vs. City of Taylorville
818 F. 2d 1345
City was not liable under Illinois law for damage to property due to a fire. The owner of the property had not subscribed to the City Fire Association. Those living outside the city limits had to subscribe to the association in order to get fire protection and Illinois law does not hold municipalities liable for failing to supply fire protection.

ORDINANCES

Schultz vs. Frisby
822 F. 2d 642
Ordinance prohibiting residential picketing did not provide sufficient alternative channels for any abortion picketers in violation of the first amendment because restriction of picketing to nonresidential streets significantly affected quality of picketer's means of expression.

POLICE PROTECTION

Simack vs. Risely
804 F. 2d 143
Undercover police who observed a mugging and pursued the attackers only after the victim had been beaten and robbed, had no constitutional duty to prevent the mugging.

RESIDENCY REQUIREMENTS

Shaly vs. Montgomery
802 F, 2d 918
Dismissal of an assistant corporation counsel for failure to maintain residence within corporate boundaries did not violate principles of due process and equal protection of the laws. Court held that plaintiff had no constitutionally based property interest in his job because city attorneys are exempt from civil service status.

TORT IMMUNITY

Dodd vs. City of Norwich
815 F. 2d 862
A police department regulation which was followed by a police officer resulting in the decedent's fatal injuries had the dual effect of (1) providing a defense to the police officer and (2) a basis for liability against the city.

VENDING REGULATION

Vaden vs. Village of Maywood, Illinois
809 F. 2d 361
Ordinance restricting the hours and manner of operation of mobile food dispenser vehicles did not violate due process or equal protection. The requirement that such vehicles move every ten (10) minutes while operating in residential areas was a rational means of preventing children from creating a disturbance by congregating in front of one residence for a long period of time. The disparate treatment of such vehicles reflected the determination that because they are allowed to travel the public streets in search of customers, they are more likely than other vendors to attract and delay school children and to cause disturbances in residential areas, a determination which was entirely rational.

Page 20 / Illinois Municipal Review / December 1987

ZONING

Burrell vs. City of Kankakee
815 F. 2d 1127
City Plan Commission did not violate plaintiff's due process rights in rejecting rezoning for housing complex or improperly rely on compliance with housing assistance plan, density of project, effect on nearby neighborhood and traffic.

U.S. SUPREME COURT

LAND USE REGULATION

First English Evangelical Lutheran Church of Glendale vs. County of Los Angeles, California
107 S. Ct. 2378, 96 L. Ed. 2d 250, 55 U.S.L.W. 4781
Where the government has "taken" property by a land use regulation, the land owner may recover damages for the time before it is finally determined that the regulation constitutes a "taking" of his property. Where government's activities have resulted in a taking of all use of property, no subsequent action by the government can relieve it of the duty to provide compensation for the period during which the taking was effective.

Nollan vs. California Coastal Commission
107 S. Ct. 3141, 97 L. Ed. 2d 677, 55 U.S.L.W. 5145
Government's power to forbid particular land uses in order to advance some legitimate purpose includes the power to condition such use upon some concession by the owner so long as the condition furthers the same governmental purpose advanced as justification for prohibiting the use. Although a government is free to advance comprehensive programs of land use control by exercising its eminent domain power and paying for access easements, it cannot compel residents alone to contribute to the realization of that goal without compensations.

LIMITATION OF ACTIONS

Miller vs. Boone
394 N.W.2d 776
Statute requiring that a person claiming damages against the local government commence an action within six (6) months after the injury or cause written notice to be presented to the local government within sixty (60) days after the injury was invalid. The provision violated equal protection by creating an impermissible class of plaintiffs injured by local governments and provided them with greater protection than individuals injured by entities other than private tort-feasors.

TORT IMMUNITY

Malley vs. Briggs
106 S. Ct. 1092, 475 U.S. 335, 89 L. Ed. 2d 271
Trooper who allegedly caused plaintiffs to be unconstitutionally arrested by presenting a judge with a complaint and supporting affidavit which failed to establish probable cause was not entitled to absolute immunity, but only to qualified immunity from liability for damages.

OBSCENITY

Pope vs. Illinois
107 S. Ct. 1918, 95 L. Ed. 2d 439, 55 U.S.L.W. 4595
Jury should not use "community standards" when deciding whether to rescue certain material from being labeled obscene because it has redeeming values. In determining whether or not allegedly obscene materials lack serious literary, artistic, political or scientific value, the decision should be made on the basis of a "reasonable person" test and not on "community standards" test. •

December 1987 / Illinois Municipal Review / Page 21