Committee of the Whole

Revised Agenda Cover Memorandum

Meeting Date: April 12, 2010

Item Title: Supermajority Voting

Action Requested:
I:8J Approval

D For discussion

D Feedback requested

D For your information

Staff Contact: Everette Hill, City Attorney

Phone Number: 847/318-5207

Email Address:

Background:

At the February 3, 2010 City Council meeting under New Business, Alderman Allegretti requested that a
clarification and definition of a "supermajority" vote be placed on the February 22, 2010 Procedures and
Regulations Committee of the Whole agenda as an action item.

At the February 22,2010 Committee ofthe Whole meeting, the Committee consensus appeared to be that

a more clear definition of supermajority was needed. The Chairman asked that the matter be placed on

the next Committee of the Whole PIR agenda as an action item.

Alderman Allegretti states that this change is only directed at the ordinance adopted November 16,2009,
which he believes misstated the intent of the Council by requiring 6 votes instead of 5 votes as intended.

The attached Ordinance contains the City Attorney's addition of the term "2/3" to supermajority. The
remaining proposed changes were made at Alderman Allegretti's request.

Recommendation:

Budget Implications:

Does Action Require an Expenditure of Funds: DYes I:8J No

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
 · .,'
'/

ORDINANCE

OF THE CITY COUNCIL OF THE CITY OF PARK RIDGE

AMENDING VARIOUS SECTIONS OF THE CITY OF PARK RIDGE, ILLINOIS

ZONING ORDINANCE

BE IT ORDAINED by the City Council of the City of Park Ridge, Cook.County, Illinois,
pursUant to its home rule authority provided under Article VII of the TIlinois Constitution of 1970 as
follows:

SECTION 1: That Paragraph 4.8, entitled "Zoning Amendment" of Section 4, entitled

"Applications and Approval Processes" of the City of Pmk Ridge, lllinois Zoning Ordinance is
hereby amended to read in its entirety as follows:

4.8 ZONING AMENDMENT

A. Purpose

The regulations imposed and the districts created by this Ordinance may be amended
from time to time in accordance with this Section. This process for amending the Zoning
Ordinance text or the Zoning Map is intended to pennit modifications in response to
changed conditions or changes in City policy. Amendments are not intended to relieve
particular hardships or confer special privileges or rights upon any person or party.

B. Initiation
Applications for zoning amendments (text or map amendments) may be filed by the City
or by an owner of any property that is in the C~. (Ordinance 2008-65, 9/212008)

C. Procedure
Applications shall be filed with the Zoning Administrator, in .~ccordance with the
requirements of Section 3.2 (Application). Upon receiving a complete application, the
Zoning Administrator shall schedule the application for consideration by the Planning
and 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 Map
Amendment Process.)
(Ordinance 2008-65, 9/212008)
1. Action by the Planning and Zoning Commission
a. The Planning and Zoning Commission shall conduct a public hearing on a
proposed zoning amendment, in accordance with Section 3.4 (Public
Hearing) no more than sixty (60) days after receipt ofa complete application.
Notice for the public hearing shall be in accordance with Section 33 (Public
Notice)., ~ in the Planning and Zoning Commission's judgment, the
application does not contain sufficient information to enable the Commission
to properly discharge its responsibilities, the Commission may request

iManage:236658_1 1
 additional infonnation from the applicant. In that event, the sixty (60) day
period shall be suspended pending receipt of all requested infonnation.

b. The Planning and Zoning Commission shall make findings of fact, based upon
the evidence presented at the public hearing, pursuant ~ each of the applicable
standards in Paragraph D (Findings ofFact for Zoning Amendments) below.

e. Within fortY-five (45) days ofthe close ofthe public hearing, the Planning and
Zoning Commission sha'l forward to the City COWlcil its recommendation,
together with the mitmutes of the hearing and the Commission's finQeings of I
fact The Commission recommendation may .take the form of approval or
denial. If the requested amendment is a text amendment, the recommendation
.shall include the Commission's proposed language.

2. Action by the City Council

a. Procedure. Subject to the Zoning Amendment Action Table set forth in (b)
below; consideration of the Planning and Zoning Commission
recommendation 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. In
the case of text amendments, the City Council shall not be bound by the
precise language of the Commission recommendations. The City Council
may also refer the application back to the Commission for further
consideration.
b. City Co~cil Zoning Amendmen~ Action Table. The following table
describes the action requirements t'Qr the various zoning amendments.

ZONING AMENDMENT AC"nON TABLE

Type of Planning and Zonln'g .lniUallng Party Further Action -=.
......,
Amendment Commission ·Recomm endatlon Vote of
Request After Public Hearing Aldermen
Required for
.. Adontlon
Text Denial City Council Forwarded to 2/3 SU)Jer
City Council maioritv
Text Denial Anyone Other Than Forwarded to 213 Super
CitVCouncll CItv Council maioritY
Text Approval City Council Forwarded to Majority
City Council
Text Approval Anyone Other Than Forwarded to Majority
CitY Council City Council
Map Denial City Council Forwarded to 2/3 Su~er
City Council maloritv
Map Denial Anyone Other Than Forwarded to 213 Super
CitY Council CitvCouncii maiontV
Map Approval City Council Forwarded to Majority
City Council
Map Approval Anyone other Than Forwarded to Majority
CitY Council Cltv Council

 D. Findings ofFaet for Zoning Amendments

The Planning and Zoning Commission recommendation and City Council decision on
any zoning amendment, whether text or map amendment, is a matter of legislative
discretion that is not controlled by any particular standard. However, in making a
recommendation and decision, the Planning and Zoning Commission and; City Council
shall consider the following standards, as set' forth in Table 1: Standards for Zoning
Amendments below.

The existina use and zonina·of nearbY orooertv. x

The extent to which property values of the SUbject property are
diminished bv the existina zonlna. .
x
The extent to which the proposed amendment promotes the public

health, safetv, comfort. convenience and aeneral welfare of the City.

x x
The relative gain to the public, as compared to the hardship imposed
x
uoon the aoolicanl
x
The suitability of the property for the purposes for which it is presently

zoned, i.e. the feasibility of developing the property in question for one
x
(1) or more of the uses oermitted under the existina zoninl:l classification.
. The length of time that the property in question has been vacant, as
presently zoned, considered in the context of development In the area x
where the crocertv Is located.

The evidence, 'or lack of evidence, of. community need for the use

crooosed bv the acclicant.

x
The consistency of the proposed amendment with the ComprehensiVe
x
Plan.

x
The consistency of the proposed amendment with the intent and general
x
reaulations of this Ordinance. '.

Whether the proposed amendment corrects an error or omission, adds

x
clarification to existing recuirements, or reflectS a chanl:le In' policy. .

That the proPQsed .amendment willl?enefit the residents of the City as a

whole, and notjust"the applicalit, 'property owner(s), neighbors.of any

property under consideration, or Qther special Interest groups, and the

x x
extent to which the proposed use would be in the public interest and

would not serve solelv the Interest of the acolicant

Whether the proposed amendment provides a more workable way to

achieve the intent and purposes of this Ordinance and the

x
Comorehensive Plan.

The extent to which the orooosed amendment creates nonconformities.

x x
The trend of development, if any. in the general area of the property in
auestion.
x
Whether adequate publIc. facilities are available inclUding, but not limited

to. schools. parks, police and fire protection, roads, sanitary sewers,

storm sewers, and water lines, or are reasonably capable of being

x
provided prior to the development of the uses, which would be permitted

on the subiect orocertv if the amendment were adopted.

The extent to Which the proposed amendment is consistent with the

x
overall structure and orcanization ofthls Ordinance.

iManage:236658_1 3
 E. LlmitatioDs on Deolals
No application for an amendment which has been denied by the City Council shall be
reconsidered for a period ofone (1) year from that date ofdenial.

SECTION 2: BE IT FURTHER ORDAINED that this Ordinance shall be in full force and
effect from and after its passage, approval and publication according to law.

. SECTION 3: BE IT FURTHER ORDAINED that the City Clerk is hereby authorized and
directed to publish said Ordinance in pamphlet fonn according to law.

Adopted by the City Council ofthe City ofPark Ridge, Dlinois this 16th day ofNovember, A.D.
2009.

VOTE:
AYES: Ald. Bach, Allegretti, Ryan, and Sweeney
NAYS: Ald. Wool, Carey and DiPietro

ABSENT: None

Approved by me this 16" d~y ofNovember, A.D., 2009

David F:;·~chmidt, Mayor

.:,
Attest:

Betty W. Henn~an, City Clerk

A certified copy ofthis Ordinance was published in pamphlet fonn by

_ _ _ _ _ _ _ _ _ _ _ _thi.s __ dayof -J,2009.

iManage:236658_1 4
 20 N. Wacker DrIve, $te 1660
Chicago, illinois 60606-2903
T312 984 6400 F312 984 6444
DD 312 9846420
emhill@ktJlaw.com
15010 S. Ravinia Avenue, Ste10
Orland Parle, Illinois 60462-5353
T']083493SB8 F708349 1S0 6
www.ktJlaw.com .

MEMORANDUM

TO: Jim Hock, City Manager

City of Park Ridge

FROM: Everette M. Hill, Jr.

DATE: January 7, 2010

RE: Billboard Fees

I have been asked to provide an opinion with respect to the City's ability to permit
or license highway billboards as a source of revenue.

We currently do not permit off·premise advertising in Park Ridge. This prohibition

is found in the zoning ordinance at Sectlon 14.9H. .

The idea that has been proposed by the Generation Group, Inc. is that the City would
amend Its Zoning Ordinance to permit limited off~premise advertising (within a certain
distance of expressways) and the City would then receive certain payments from the
Generation Group for doing so.

The revenue would be paid pursuant to one or more of the following legislative
requirements:

1. An impact fee.
2. Alicense fee.
3. Entry Into an agreement with the sign company whereby it would pay the
City a certain ~mount if the signs are erected.

It must be kept in mind that the new ordinance, in addition to amending to allow for
off·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 for
exacting the fee.

Impact·Fees

With respect to impact fees, the U.S. Supreme Court has stated:
Mr. Jim Hock
January 7,2010
Page 2

No precise mathematical calculation is required (to arrive at the appropriate

amount), but the city must make some sort of individualized determination that the
required dedication is related in both nature and" extent to" the impact of the
" proposed development. Dolan v. City o/Tigard, 512 U.S. 374, 391 (1994).

The Illinois Constitution goes even further in regulating impact fees. In Illinois, a
rough 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 ~nnot demonstrate that its exaction is directly proportional
to the specifically created need, the exaction becomes 'a veiled exercise of the power
of eminent domain and a confiscation of private property behind the defense of
police regulations.' ld. at 390, citing Pioneer Trust & Savings Bank v. Mount Prospect,
221U. 2d 375,381 (1961).

In view of the above, an impact fee, however it is implemented, even if by

agree"ment, is inappropriate to this situation.

A recent Federal Court decision with respect to a neighboring municipality is

instructive in this regard The City of Des Plaines adopted a highway sign ordinance which
required, among other things that the City Manager negotiate an agreement, on such tenns,
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 financial
considerations to the City as the City manager deems appropriate." Covenant Media 0/
Rlinois v. City o/Des Plaines, 2005 WL 2277313, *4 (N.D. lll. Sept. ~2, 2005).

The court granted a preliminary injunction against enforcement of the ordinance, in

part, because ". . .It does not define what is 'appropriate' or what 'other financial
considerations' the City Manager may consider ..." and because If• • • the Amended Sign
Ordinance does not specify the criteria that the City Council and mayor must use in
deciding whether or not to approve the agreement reached by the City Manager for a
billboard 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 afoul
of the "exacting correspondence" test. If we do not specify the amount of the fee, but
require it to be negotiated, we risk a rebuke by the court sjmilar to that experienced by Des
Plaines. This Is in addition to the general prohibition against contract zoning, which will be
discussed further below.
Mr. Jim Hock
January 7, 2010
Page 3

License Fee

The other approach that has been suggested is a substantial license fee. This has
been raised as a possibility because the general rule in Illinois is that a hoine rule
municipality may "license for revenue". This means that an annual license fee may be much
greater than the actual cost of regulating the licensed enterprise.

However, in the previously mentioned Des Plaines case, the trial court, basing its

reasoning 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. Greater
S. Suburban Bd. OfRealtors, 935 F.2d 868, 898 (7 th Cir. 1991) ('Since the City must
.justify restrictions on commercial speech, and the cost of a pennit must be
reasonably related to the City's cost in administering the 'same, [the City] was
required to carry the burden of establishing that its permit fee ... is not excessive
and did not exceed the City's costs in enforcing its ... regulations'). ld. at *5.

It is clear that the Seventh Circuit (of which we are a part) has carved out an
exception to the general rule, i.e., when free speech is implicated (as is the case with
advertising) 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 First
Amendment rights.

Entry Into a Contract

The last approach is to amend our ordinance to require that the billboard company
enter 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 "reasonably related" impact fee and license fee issues
by requiring that the City Manager negotiate an agreement that Included such "other
financial considerations to the City as the City Manager deems appropriate." The court
rejected this language stating:

While the City is correct that nowhere in the Sign Ordinance are government
officials permitted to grant or deny a permit application on the basis ofthe proposed
content and, in fact, they are now prohibited from doing so expressly, there are no
objective standards to guide the discretion of the mayor, City Manager, or City
Council in approving or denying permit applications. ld. at *4, footnote 2.

In addition, changing our Zoning Ordinance based on the payment of money sounds
very much like "contact zoning."
Mr. Jim Hock

January 7, 2010

Page 4

"Zoning determinations based on agreed conditions have not been favored in lllinois

decisions", People v. Batavia, 91 Ill. App. 3d 716,721 (2nd Dist 1980), citing Treadwayv. City

of Rpckford, 24 m.2d 488, 496·497 (1962) ("conditional zoning amendments 'have

frequently been invalidated either because they introduce an element of contract which has

no place in the legislative process or because they constitute an abrupt departure from the

comprehensive plan contemplated in zoning'j. Courts are concerned that "municipalities

not surrender their governmental authority to determine sound land use, or improperly try

to control the use of land." Nolan v. City of Taylorville, ,95 Ill. App. 3d 1099, 1103 (5th Dist

1981). Another concern is that "(c)onditional zoning can also furnish an avenue for

corruption ofofficials." Requiring "the payment of a lump sum of money without any basis

set forth or discernible for arriving at that sum is unlawful even in respect to municipal

powers over subdivision." Andres v. Village ofFlossmoor, 15 Ill. App. 3d 655, 662 (1st Dist.

, 1973), citing Rosen v. Downers Grove, 19 1l1.2d 448, 453·454 (1960).

We are all aware that "(s)ome conditional zoning (as in special uses and planned
unit developmentS) may be in the public good, subservient to a comprehensive plan, in the
best interest of the public health, safety and welfare and enacted in recognition of changing
circumstances." Goffinet v. County of Christian, 30 Ill. App. 3d 1089, 1095 (51b Dist. 1975).
However, if the proposed legislation reqUires the payment of an amount of money for
general purposes without any specific public benefit that is related to the project, it will be
deemed 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 m. App. 3d 655 (1973). The Goffinet
court rejected the rezoning proposed in Andres because it was conditional zoning that
introduced "elements of contract, which have no place in the legislative process, and
showed 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 to
certain limitations, including contributions of $1,000 for general village purposes for each
of eighteen (18) buildings.

The result would be different if the City were entering into an agreement for use of
its own property. Such was the case in Thornber v. Village ofNorth Barrington, 321111. App.
3d 318 (2nd Dist. 2001), in which a claim was made that the village had engaged in illegal
contract zoning by adopting an ordinance permitting the construction of a
telecommunications monopole at'the village haH. After finding that the ordinance complied
with the LaSalle factors (court mandated zoning standards), the Court determined that an
ordinance is not invalid contract zoning because pecuniary benefit may result
(telecommunications company intended to lease from village). Such benefit was not the
result of "nonuniform bartering of legislative discretion that applied unequally throughout
the 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 Seventh
Circuit Court of Appeals. But while the Seventh Circuit may disagree with the trial judge's
Mi. Jim·Hock
January 7, 2010
PageS

decision, it appears to me- that her decision was based on prior decisions and her reasoning
is sound.

I am also aware that the Generation Group is offering the "fee by agreement"
concept to us voluntarily; so that we're not "exa~ng" the fee from them. Nonetheless, we
win be reqUired to make a zoning change in order to enter into such an agreement with
them. If we make the zoning change without a signed agreement, we still 'must include
languag~ in the amending ordinance that requires the payment This approach has already
been rejected in the Des Plaines case. If we enter into an agreement with the Generation
Group now, whereby payment is conditioned upon a subsequent zoning change, that is a
classic c.ase of invalid "contract zoning: Even if the Generation Group did not at some
future date decide to challenge our fees, it is possible that some other group, who claims to
be adversely affected by the billboards or the ordinance would have standing to challenge
the amendment

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

Ifyou have any questions or comments, please contact me.