In the Zone: Court Upholds Revocation of Conditional Use Permit for Beer Garden and more...

In the Zone: Court Upholds Revocation of Conditional Use Permit for Beer Garden

The Seventh Circuit Court of Appeals upheld a district court's denial of an injunction against a planning and development committee that had revoked a conditional use permit to operate an outdoor beer garden. Minocqua Brewing Company v. Daniel Hess.

In 2021, the owner of a microbrewery and pub applied for and was issued an administrative permit allowing the operation of a retail outlet accessory to the brewery. That permit expressly prohibited any outdoor operations. A year later, the owner applied for a conditional use permit to operate an outdoor beer garden which would require use of land owned by the town. The committee denied the conditional use permit, which the owner did not appeal. Later, the brewery submitted a revised application for the beer garden. In the meantime, the brewery was violating its retail outlet permit by operating outdoors, and the owner was criticizing town and county officials on social media and in public hearings. The committee ultimately decided to revoke the retail outlet permit because of the open and ongoing violations of the permit, but granted a conditional use permit for the outdoor beer garden conditioned on the owner meeting all of the conditions prior to the start of operation.

The owner opened the beer garden but did not meet all of the conditions required for the permit. Ultimately, the committee suspended the outdoor beer garden permit for 90 days. The owner ignored the suspension and continued to operate the beer garden, and the committee then revoked the permit. The owner appealed the revocation to the board of adjustments which denied his appeal. The owner then filed a new conditional use application, while he continued to operate the beer garden without a permit. The owner also posted on social media that he would continue to operate without a permit regardless of the committee's decision on his new application. After a public hearing on the conditional use application, the committee denied the permit, citing the repeated violations and the brewery's continued operation without a valid permit.

The owner of the brewery sued, arguing that the committee retaliated against the owner and brewery for their political speech in violation of the First Amendment when it revoked the permit and denied a new permit. The court rejected their claims, finding that they failed to show a likelihood of success on the merits of the First Amendment retaliation claims. The court noted that any reasonable permit-issuing body would have revoked and denied permits given the owner's past and present willful violations of the permit requirements, as well as his promise of future violations. The court held that there can be no First Amendment retaliation if the adverse action (revocation and denial) would have occurred even in the absence of the protected speech.

Governor Signs Bill Amending OMA and FOIA

We reported on SB 243 a couple of weeks ago which proposed various amendments to the Open Meetings Act and FOIA and that had been approved by both the senate and house of the Illinois General Assembly. The bill was just signed by the Governor last week and became P.A. 104-0438. A brief summary of the changes that will take effect on January 1, 2026 is below:

1. Meetings of Public Bodies Prohibited on Election Day

2. Military Service Added as a Reason for Remote Meeting Attendance

3. Township OMA Training Option Available

4. Immunity for Public Officers and Employees for Record Disclosure in Compliance with PAC Opinion

5. Section 4 FOIA Posting Requirements Allow Website Posting

6. Junk Mail Excluded from FOIA Definition of Public Records

7. Electronic FOIA Submissions Must be in Body of Submission (not Attachment or Hyperlink)

8. Public Body Can Require Verification that FOIA Requester is a Person

9. Self-Evaluation Exemption from OMA Expanded to Include Facilitator from Regional Association

10. New FOIA Exemptions Added for Certain Criminal Justice and Nuclear Records

Illinois Supreme Court Grants Immunity to School District

In Haase v. Kankakee School District, the Illinois Supreme Court considered whether a school district and its employees were entitled to immunity for a student injury under the Local Governmental and Governmental Employees Tort Immunity Act (“Tort Immunity Act”).

A parent sued a school district on behalf of his son who was injured during gym class. According to the complaint, the gym teacher walked the students through warmup activities and provided basketball and soccer balls to the students. The gym teacher then went to sit in the corner of the gym and began using his laptop. The complaint alleges that the gym teacher was aware of a child in the class who had been disciplined in the past for fighting and getting aggressive with other students. The gym teacher, principal, and student counselor, however, did not have any recollection or records of this child being aggressive with other students.

The students began playing a soccer game, and the injured student testified that the other child was not playing for either team but was attempting to grab the ball from the students who were playing soccer. The situation escalated, and the injured student claims the child tackled him resulting in injury. Other students from the class testified they thought the game had turned unnecessarily rough. The gym teacher testified he had seen the incident but thought it was a normal scrum for a soccer ball.

The Tort Immunity Act provides immunity for public bodies and public employees in limited circumstances. Section 3-108 of the Act immunizes a local public entity for negligent supervision of, or negligent failure to supervise, an activity on public property. However, there is an exception to this immunity where an employee of the public body acts with utter indifference or conscious disregard for the safety of others.

The trial court held that the claims in the lawsuit were not sufficient to state a cause of action because the gym teacher’s conduct did not rise to the level of utter indifference or conscious disregard to defeat tort immunity. On appeal, a divided appellate court reversed the decision of the trial court and found that there was a dispute of fact regarding whether the child was known to be aggressive and whether the gym teacher acted with conscious disregard for the student’s safety based on this knowledge.

On appeal to the Illinois Supreme Court, the Court held that because the complaint had not alleged conduct amounting to utter indifference or a conscious disregard for safety, the school district was immune from liability under Section 3-108 of the Tort Immunity Act. The Court concluded that the actions of the teacher did not rise to the level of willful and wanton conduct.

Post Authored by Alexis Carter, Ancel Glink

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Appeal of Pension Board Decision Dismissed for Violation of Court Rules in Use of AI

An Illinois Appellate Court recently dismissed the appeal by a former police officer of a pension board's denial of pension benefits because he violated Illinois Supreme Court Rules when he filed an appellate brief almost wholly created with the aid of artificial intelligence (AI). Pletcher v. Village of Libertyville Police Pension Board.

The plaintiff was hired as a police officer in 2003, and filed an application for a non-duty disability pension in 2020. He subsequently withdrew his application, and returned to full duty. In 2022, he was placed on a performance improvement plan for certain violations of department orders and policies. Shortly thereafter, he filed a second application for a non-duty disability pension. The pension board held a hearing on the application and ultimately denied his application, finding that the officer's condition could have been remedied with medication, which the pension board found the officer refused to regularly to take.

The officer filed a complaint for administrative review with the trial court to appeal the pension board's decision, along with a brief supporting his complaint. In his brief, he cited to several cases that did not exist. At the hearing, the officer also attempted to introduce new evidence and exhibits that were not part of the original hearing. The pension board brought the nonexistent cases to the attention of the trial court and objected to the introduction of new evidence. At the conclusion of the hearing, the trial court upheld the pension board's denial of his pension application.

The officer then appealed to the Appellate Court. After he filed his brief with the Appellate Court, the pension board filed a response and a motion for sanctions alleging that the officer violated Illinois Supreme Court Rules for fictitious citations to the administrative record, citations to nonexistent cases, and fictitious holdings from actual cases. The Appellate Court noted that all parties in litigation (even pro se litigants) are obligated to comply with court rules and procedures. The Court also noted that the officer had cited five cases in his appellate brief that did not exist, and that the some of the actual cases cited in his brief did not stand for the propositions stated in his brief. The Court stated that the officer's status as a "pro se" party does not excuse his careless reliance on AI, and that he was aware of the risks of using AI-generated research when this same issue was raised at the trial court and yet he still chose to use AI in this manner in his appellate brief. After holding oral argument on the motion to dismiss the appeal, the Appellate Court granted the pension board's motion and the officer's appeal was dismissed.

Appellate Court Interprets 50 Pages "Free of Charge" FOIA Provision

An Illinois Appellate Court ruled in favor of a public body in a FOIA case filed by a requester who claimed the public body violated FOIA when it consolidated his six FOIA requests in applying FOIA's fee provision. Walters v. McHenry County Sheriff's Office.

A requester filed six FOIA requests on the same day with a county sheriff's office seeking Department of Corrections inspection reports for six different years (one year per request). The sheriff's office responded to the requests by providing 50 pages free of charge, and stating that the requester would have to pay 15 cents per page for the 113 remaining pages. The requester filed a lawsuit claiming that the sheriff's office violated FOIA by consolidating the six requests for purposes of applying the provision of FOIA requiring public bodies to release 50 pages free of charge, arguing that each of the six requests should have been treated separately. The sheriff's office filed a motion to dismiss the case arguing that because the requester submitted the six requests together in one envelope on the same date, it was appropriate to aggregate and combine the requests in applying FOIA's fee provision. The trial court agreed with the sheriff's office, finding that the request was properly consolidated for purposes of applying FOIA's fee provision.

On appeal, the Appellate Court upheld the trial court's ruling in favor of the sheriff's office but applied a different interpretation to the FOIA fee provision. The Appellate Court noted that the statute provides that “[n]o fees shall be charged for the first 50 pages of black and white, letter or legal sized copies requested by a requester.” The Appellate Court held that it was irrelevant whether the requester's FOIA requests were separate and distinct requests for different public records, and instead held that the requester's status as a single requester is what matters in applying this provision of FOIA, stating as follows:

Under the plain language of the statute, plaintiff—the “requester”—was entitled to “the first 50 pages *** requested” from defendant—the “public body”—free of charge. Id. Defendant provided 50 free pages to plaintiff and properly assessed fees for the additional 113 pages. Thus, plaintiff has not stated a valid claim against defendant for a FOIA violation, and the court was correct to dismiss his complaint.

In short, the Appellate Court held that a requester is entitled to the first 50 pages free of charge requested by that requester from that public body, and since the sheriff's office provided the first 50 pages at no charge, there was no FOIA violation and the requester's complaint was properly dismissed.

It is important to note that this appears to be the first time an Appellate Court has interpreted this FOIA fee provision in this manner, and that this is an unreported order not a published opinion. So, it remains to be seen whether other Illinois courts would rule in the same manner (i.e., that the 50 pages "free of charge" provision applies to the requester and not to each request).

Municipal Minute