P&R-Supermajority_voting[1]

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Committee of the WholeAgenda Cover Memorandum

Meeting Date: April 12, 2010Item Title: Supermajority VotingAction Requested: Approval

D For discussionD Feedback requestedD For your information

Staff Contact: Everette Hill, City AttorneyPhone Number: 847/318-5207Email Address:Background:At the February 3,2010 City Council meeting under New Business, Alderman Allegretti requested that aclarification and defmition of a "supermajority" vote be placed on the February 22, 2010 Procedures andRegulations Committee of the Whole agenda as an action item.At the February 22, 2010 Committee of the Whole meeting, the Committee consensus appeared to be thata more clear definition of supermajority was needed. The Chairman asked that the matter be placed onthe next Committee of the Whole PIR agenda as an action item.The attached Ordinance contains the City Attorney's addition of the term "2/3" to supermajority. Theremaining proposed changes were made at Alderman Allegretti 's request.Recommendation:

Budget Implications:Does Action Require an Expenditure ofFunds: DYes ~ N If Yes, Total Cost:If Yes, is this a Budgeted Item: DYes DNo

Attachments: Draft Ordinance Memo dated January 7, 2010 from City Attorney Hill regarding Billboard fees


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ORDINANCEOF THE CITY COUNCIL OF THE CITY OF PARKRIDGEAMENDING VARIOUS SECTIONS OF THE CITY OF PARKRIDGE, ILLINOISZONING ORDINANCE

BE IT ORDAINED by the City COWlcil of the City of Park Ridge, CookCounty, Illinois,pursuant to its home rule authority provided under Article VII of the Illinois Constitution of 1970 asfollows:

SECTION 1: That Paragraph 4.8, entitled "Zoning Amendment" of Section 4, entitled"Applications and Approval Processes" of the City of Park Ridge, Illinois Zoning Ordinance ishereby amended to read in its entirety as follows:4.8 ZONING AMENDMENT

A. PurposeThe regulations imposed and the districts created by this Ordinance may be amendedfrom time to time in accordance with this Section. This process for amending the ZoningOrdinance text or the Zoning Map is intended to pennit modifications in response tochanged conditions or changes in City policy. Amendments are not intended to relieveparticular hardships or confer special privileges or rights upon any person or party.B. InitiationApplications for zoning amendments (text or map amendments) may be filed by the Cityor by an owner of any property that is in the City. (Ordinance 2008-65, 9/2/2008)C. ProcedureApplications shall be filed with the Zoning Administrator, in accordance with therequirements of Section 3.2 (Application). Upon receiving a complete application, theZoning Administrator shall schedule the application for consideration by the Planningand Zoning Commission. Amendments initiated by the City also require an application,but are exempt from fees. (See Appendix B for Flowchart 5: Zoning Text and MapAmendment Process.)(Ordinance 2008-65,9/212008)

1. Action by the Planning and Zoning Commissiona. The Planning and Zoning Commission shall conduct a public hearing on aproposed zoning amendment, in accordance with Section 3.4 (PublicHearing) no more than sixty (60) days after receipt of a complete application.Notice for the public hearing shall be in accordance with Section 3.3 (PublicNotice)., If , in the Planning and Zoning Commission's judgment, theapplication does not contain sufficient infonnation to enable the Commissionto properly discharge its responsibilities, the Commission may request

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additional infonnation from the applicant. In that event, the sixty (60) dayperiod shall be suspended pending receipt of all requested infonnation.b. The Planning and Zoning Commission shall make findings of fact, based uponthe evidence presented at the public hearing, pursuant to each of the applicable

standards in Paragraph D (Findings of Fact for Zoning Amendments) below.c. Within fortY-five (45) days of the close of the public hearing, the Planning andZoning Commission shall forward to the City Council its recommendation.together with the miwlUtes of the hearing and the Commission's fingeings offact. The Commission recommendation may.take the fonn of approval ordenial. If the requested amendment is a text amendment, the recommendation.shall include the Commission's proposed language.

2. Action by the City Councila. Procedure. Subject to the Zoning Amendment Action Table set forth in (b)

below; consideration of the Planning and Zoning Commissionrecommendation shall be placed on a City Council agenda within thirty (30)days. The City Council may take action in the fonn of approval or denial. Inthe case of text amendments, the City Council shall not be bound by theprecise language of the Commission recommendations. The City Councilmay also refer the application back to the Commission for furtherconsideration.b. City Council Zoning Amendment, Action Table. The following tabledescribes the action requirements for the various zoning amendments.

Type ofAmendment PlanningCommissionZONING AMENDMENT ACTION TABLE

and Zoning .Initiating Party Further Action'Recommendationt " l ....

-IVote .ofRequest After Public Hearing AldermenRequired fo r

AdoptionText Denial City Council Forwarded to 2/3 S u ~ e r City Council majorityText Denial Anyone Other ThanCity Council ForwardedCity Council to 2/3majority SuperText Approval City Council Forwarded to MajorityCity CouncilText Approval Anyone Other Than Forwarded to MajorityCity Council City CouncilMap Denial City Council Forwarded to 2/3 SuperCity Council maiorityMap Denial Anyone Other Than Forwarded to 213 SuperCity Council City Council maioritvMap Approval City Council Forwarded to MajorityCity CouncilMap Approval Anyone Other Than Forwarded to MajorityCitY Council City Council

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D. Findings ofFad for Zoning AmendmentsThe Planning and Zoning Commission recommendation and City Council decision onany zoning amendment, whether text or map amendment, is a matter of legislativediscretion that is not controlled by any particular standard. However, in making arecommendation and decision, the Planning and Zoning Commission and City CouncilshaH consider the foHowiilg standards, as set" forth in Table I: Standards for ZoningAmendments below.

C~ i " : f ~ 5 - ~ '... : ~ " _ ! } c / : ~ : ~ h . ~ : : , ' ~ ; ~ . ~ c ; : ~ ~ , ~ ~ ~ ; : ~ ~ , . { e : ; , c ~ 1;'1 !.:: ~ ~ ; : : : ~ ; j j ; ( : ~ J ( : " C : - .'. \. , : : , : ; ~ , : , ~ : " , j The existinQ use and zoninQ.of nearby property. XThe extent to which property values of the subject p ~ o p e r t y are Xdiminished by the existing zoning.The extent to which the proposed amendment promotes the public

Xhealth, safetv, comfort, convenience and general welfare of the City.The relative gain to the public, as compared to the hardship imposed Xupon the applicant.The suitability of the property for the purposes for which it is presentlyzoned, i.e. the feasibility of developing the property in question for one X(1) or more of the uses permitted under the existing zoning classification.The length of time that the property in question has been vacant, aspresently zoned, considered in the context of development in the area Xwhere the property is located.The evidence,or Iack of evidence, of community need for the use Xproposed by the applicant.The consistency of the proposed amendment with the Comprehensive XPlan.The consistency of the proposed amendment with the intent and general Xregulations of this Ordinance.' Whether the proposed amendment corrects an error or omission, adds Xclarification to existing requirements, or reflects a change in policy.That the proposedamendnient will benefit the resident.s of the City as awhole, and notjustthe applicant, 'property owner(s), neighbors.of anyproperty under consideration, or other special interest groups, and the Xextent to which the proposed use would be in the public interest andwould not serve solely the interest of the applicant.Whether the proposed amendment prOVides a more workable way toachieve the intent and purposes of this Ordinance and the

X

XComprehensive Plan.The extent to which the proposed amendment creates nonconformities. XThe trend of development, if any, in the general area of the property in

XXQuestion.Whether adequate public facilities are available including, but not limitedto, schools, parks, police and fire protection, roads, sanitary sewers,storm sewers, and water lines, or are reasonably capable of being Xprovided prior to the development of the uses, which would be permittedon the subject property if the amendment were adopted.The extent to which the proposed amendment is consistent with the Xoverall structure and oraanization of this Ordinance.

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E. Limitations on DenialsNo application for an amendment which has been denied by the City Council shall bereconsidered for a period ofone (1) year from that date of denial.

SECTION 2: BE IT FURTHER ORDAINED that this Ordinance shall be in full force andeffect from and after its passage, approval and publication according to law.SECTION 3: BE IT FURTHER ORDAINED that the City Clerk is hereby authorized anddirected to publish said Ordinance in pamphlet form according to law.

Adopted by the City Council of the City ofPark Ridge, Illinois this 16th day ofNovember, A.D.2009.VOTE:AYES: Ald. Bach, Allegretti, Ryan, and SweeneyNAYS: Ald. Wsol, Carey and DiPietroABSENT: None

Approved by me this 1(ih d ~ ofNovember, A.D., 2009

David F : ~ S c h m i d t , MayorAttest:

Betty W. Henneman, City Clerk

A certified copy of this Ordinance was published in pamphlet form by____________ this__ day of ->, 2009.

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.... 'KLii:N:, : ' f i \ i O : R i E ~ & : j ~ : ~ : ~ ! ~ ; S ; ; . t T : t i ; > : . . Att.tirn:eys .a.t La'\Y

20 N. Wacker Drive, Ste :1.660 :1.5010 S. Ravinia Avenue, Ste :1.0Chicago, illinois 60606-2903 Orland Park, Illinois 6462-5353T 3:1.2 984 6400 F 3:1.2 984 6444 T708 3493888 F708 349 :1.506DD 3:1.2 984 [email protected] www.ktjlaw.com

MEMORANDUMTO: Jim Hock, City ManagerCity of Park RidgeFROM: Everette M. Hill, Jr.DATE: January 7,2010RE: Billboard Fees

I have been asked to provide an opinion with respect to the City's ability to permitor license highway billboards as a source of revenue.We currently do not permit offpremise advertising in Park Ridge. This prohibitionis found in the zoning ordinance at Section 14.9H. .The idea that has been proposed by the Generation Group, Inc. is that the City wouldamend its Zoning Ordinance to permit limited off-premise advertising (within a certaindistance of expressways) and the City would then receive certain payments from theGeneration Group for doing so.The revenue would be paid pursuant to one or more of the following legislativerequirements:1. An impact fee.2. Alicense fee.3. Entry into an agreement with the sign company whereby it would pay theCity a certain amount if the signs are erected.It must be kept in mind that the new ordinance, in addition to amending to allow foroff-premise advertising, would also have to incorporate a requirement for one of the above

into the ordinance. .This memo will examine the possible validity of each of these mechanisms forexacting the fee.

Impact FeesWith respect to impact fees, the U.S. Supreme Court has stated:


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Mr. JIm HockJanuary 7, 2010Page 2

No precise mathematical calculation is required (to arrive at the appropriateamount), but the city must make some sort of individualized determination that therequired dedication is related in both nature and. extent to. the impact of the. proposed development. Dolan v. City ofTigard, 512 U.S. 374,391 (1994).The Illinois Constitution goes even further in regulating impact fees. In Illinois, arough proportionality between the projected impact and the required fee is not enough.The Illinois courts require a very "exacting correspondence." In Dolan, the court stated:If the local government cannot demonstrate that its exaction is directly proportionalto the specifically created need, the exaction becomes 'a veiled exercise of the powerof eminent domain and a confiscation of private property behind the defense ofpolice regulations.' ld. at 390, citing Pioneer Trust &Savings Bank v. Mount Prospect,22 Ill. 2d 375, 381 (1961).In view of the above, an impact fee, however it is implemented, even if byagreement, is inappropriate to this situation.A recent Federal Court decision with respect to a neighboring municipality isinstructive in this regard..The City of Des Plaines adopted a highway sign ordinance whichrequired, among other things that the City Manager negotiate an agreement, on such terms,conditions and locations as is appropriate, " ... including but not limited to, a licensing fee of$15,000.00 per sign payable on completion of construction ... and other financialconsiderations to the City as the City manager deems appropriate." Covenant Media of

Illinois v. City ofDes Plaines, 2005 WL 2277313, *4 (N.D. Ill. Sept. ~ 2 2005).The court granted a preliminary injunction against enforcement of the ordinance, inpart, because ". . .It does not define what is 'appropriate' or what 'other financialconsiderations' the City Manager may consider . . ." and because ". . . the Amended SignOrdinance does not specify the criteria that the City Council and mayor must use indeciding whether or not to approve the agreement reached by the City Manager for abillboard permit. ..." ld.It appears to me that if we adopt an ordinance that calls for a specific impact fee and

that amount were to be sufficient to have a positive impact on our budget, we will run afoulof the "exacting correspondence" test. If we do not specify the amount of the fee, butrequire it to be negotiated, we risk a rebuke by the court similar to that experienced by DesPlaines. This is in addition to the general prohibition against contract zoning, which will bediscussed further below.


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Mr. Jim HockJanuary 7, 2010Page 3License Fee

The other approach that has been suggested is a substantial license fee. This hasbeen raised as a possibility because the general rule in Illinois is that a hoine rulemunicipality may "license for revenue". This means that an annual license fee maybe muchgreater than the actual cost of regulating the licensed enterprise.However, in the previously mentioned Des Plaines case, the trial court, basing itsreasoning on a 1991 Seventh Circuit Court ofAppeals decision, stated the following:The City bears the burden of establishing that its licensing fee is reasonably related.to its costs in administering the permit. See South-Suburban Housing Cir. v. GreaterS. Suburban Rd. OfRealtoT'S, 935 F.2d 868, 898 (7th Cir. 1991.) ('Since the City must.justify restrictions on commercial speech, and the cost of a permit must bereasonably related to the City's cost in administering the same, [the City] wasrequired to carry the burden of establishing that its permit fee ... is not excessiveand did not exceed the City's costs in enforcing its ... regulations'). [d. at *5.It is clear that the Seventh Circuit (of which we are a part) has carved out anexception to the general rule, i.e., when free speech is implicated (as is the case withadvertising) licensing fees must be reasonably related to the cost of regulating the medium.. In other words, the government cannot raise money by taxing the exercise of FirstAmendment rights.

EntrY Into a ContractThe last approach is to amend our ordinance to require that the billboard companyenter into a contract with us that requires the payment of money.In the previously cited Des Plaines case, the City had attempted to overcome the"exacting correspondence" and the


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Mr. Jim HockJanuary 7, 2010Page 4"Zoning determinations based on agreed conditions have not been favored in Illinoisdecisions", People v. Batavia, 91 Ill. App. 3d 716, 721 (2 nd Dist. 1980), citing Treadway v. City

of Rpckford, 24 Ill.2d 488, 496-497 (1962) ("conditional zoning amendments 'havefrequently been invalidated either because they introduce an element of contract which hasno place in the legislative process or because they constitute an abrupt departure from thecomprehensive plan contemplated in zoning"l Courts are concerned that "municipalitiesnot surrender their governmental authority to determine sound land use, or improperly tr yto control the use of land." Nolan v. City ofTaylorville, 95 Ill. App. 3d 1099, 1103 (5th Dist1981). Another concern is that "(c)onditional zoning can also furnish an avenue forcorruption ofofficials." Requiring "the payment of a lump sum of money without any basisset forth or discernible for arriving at that sum is unlawful even in respect to municipalpowers over subdivision." Andres v. Village ofFlossmoor, 15 m. App. 3d 655, 662 (1st Dist1973), citing Rosen v. Downers Grove, 19 Ill.2d 448, 453-454 (1960).

We are all aware that "(s)ome conditional zoning (as in special uses and plannedunit developments) may be in the public good, subservient to a comprehensive plan, in thebest interest of the public health, safety and welfare and enacted in recognition of changingcircumstances." Goffinet v. County ofChristian, 30 Ill. App. 3d 1089, 1095 (5 th Dist. 1975).However, if the proposed legislation requires the payment of an amount of money forgeneral purposes without any specific public benefit that is related to the project, it will bedeemed invalid.In Supreme Court in Goffinet v. County of Christian, 65 Ill. 2d 40, 50-51 (1976)discussed the facts in Andres v. Village ofFlossmoor, 15 Ill. App. 3d 655 (1973). The Goffinetcourt rejected the rezoning proposed in Andres because it was conditional zoning that

introduced "elements of contract, which have no place in the legislative process, andshowed an abuse of zoning authority." Andres involved a zoning amendment, which,among other things, required the developer to sign a contract with the village to adhere tocertain limitations, including contributions of $1,000 for general village purposes for eachof eighteen (18) buildings.The result would be different if the City were entering into an agreement for use ofits own property. Such was the case in Thornber v. Village ofNorth Barrington, 321 Ill. App.3d 318 (2nd Dist. 2001), in which a claim was made that the village had engaged in illegalcontract zoning by adopting an ordinance permitting the construction of atelecommunications monopole atthe village hall. After finding that the ordinance complied

with the LaSalle factors (court mandated zoning standards), the Court determined that anordinance is not invalid contract zoning because pecuniary benefit may result(telecommunications company intended to lease from village). Such benefit was not theresult of "nonuniform bartering of legislative discretion that applied unequally throughoutthe Village." Id. at 328. Rather, it might clearly be deemed as a lease of municipal property.Bear in mind that an appeal of the Des Plaines case is still pending in the SeventhCircuit Court of Appeals. But while the Seventh Circuit may disagree with the trial judge's


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Mr. Jim HockJanuary 7, 2010Page 5decision, it appears to me, that her decision was based on prior decisions and her reasoningis sound.

I am also aware that the Generation Group is offering the "fee by agreement"concept to us voluntarily; so that we're not "exacting" the fee from them. Nonetheless, wewill be required to make a zoning change in order to enter into such an agreement withthem. If we make the zoning change without a signed agreement, we still 'must includel a n g u a g ~ in the amending ordinance that requires the payment. This approach has alreadybeen rejected in the Des Plaines case. If we enter into an agreement with the GenerationGroup now, whereby payment is conditioned upon a subsequent zoning change, that is aclassic case of invalid "contract zoning." Even if the Generation Group did not at somefuture date decide to challenge our fees, it is possible that some other group, who claims tobe adversely affected by the billboards or the ordinance would have standing to challengethe amendment

If the City Council believes, despite these issues, that it is in the City's best interest tomove ahead with such an amendment, I believe we should do so only upon a hold harmlessagreement with the sign company that would include the posting of a cash bond or letter ofcredit sufficient to pay the City's legal fees in defending a challenge to our action.

Ifyou have any questions or comments, please contact me.

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