Section 395.101  Authority 

 

IHDA is designated as the agency responsible for adopting rules and regulations needed to carry out the Board's responsibilities under the Act.  This Part is authorized by Section 60 of the Act and Section 7.19 of the IHDA Act.

 

Section 395.102  Purpose and Objectives

 

The purpose of the Act and this Part is to carry out the Board's responsibilities under the Act and to provide direction to Local Governments and Affordable Housing Developers.

 

Section 395.103  Definitions

 

The following terms used in this Part shall have the following definitions:

 

"Act": The Affordable Housing Planning and Appeal Act [310 ILCS 67].

 

"Affordable Housing": Housing that has a value or cost or rental amount that is within the means of a household that may occupy Moderate-Income Housing or Low-Income Housing. 

 

In the case of owner-occupied Dwelling Units, Affordable Housing means housing in which mortgage, amortization, taxes, insurance and condominium or association fees, if any, constitute no more than 30% of the gross annual household income for a household of the size that may occupy the Dwelling Unit. 

 

In the case of Dwelling Units for rent, Affordable Housing means housing for which the rent and utilities constitute no more than 30% of the gross annual household income for a household of the size that may occupy the Dwelling Unit.

 

"Affordable Housing Developer": A nonprofit entity, limited equity cooperative or public agency, or private individual, firm, corporation, or other entity seeking to build an Affordable Housing Development.

 

"Affordable Housing Development": Any housing that is subsidized by the federal or State government, or any housing in which at least 20% of the Dwelling Units are subject to covenants or restrictions that require the Dwelling Units to be sold or rented at prices that preserve them as Affordable Housing for a period of at least 15 years, in the case of owner-occupied housing, and at least 30 years, in the case of rental housing.

 

"Affordable Housing Plan": The Affordable Housing Plan to be approved by all Non-Exempt Local Governments as set forth in Section 25 of the Act.

 

"Approving Authority": The governing body of the Local Government.

 

"Area Median Household Income": The median household income adjusted for family size for applicable income limit areas as determined annually by HUD under Section 8 of the United States Housing Act of 1937 (42 USC 1437).

 

"Board": The State Housing Appeals Board.

 

"Chairman": The chairman of the Board.

 

"Contumacious Conduct": A willful disobedience of the Board's order.

 

"Days": Calendar days.  Due dates under this Part falling on a Saturday, Sunday or a legal State or federal holiday shall be deemed to fall on the next calendar day that is not a Saturday, Sunday or a legal State or federal holiday.

 

"Development": Any building, construction, renovation or excavation, or any material change in any structure or land, or change in the use of a structure or land, that results in a net increase in the number of Dwelling Units in a structure or on a parcel of land by more than one Dwelling Unit.

 

"Dwelling Unit": Real property located within the State upon which there is located a structure or structures that are a single family home, a condominium or a multi-unit residential structure that is the principal residence of the Household that resides in the unit.

 

"Exempt Local Government": Any Local Government in which at least 10% of its total year-round housing units are Affordable Housing, as determined by the Authority pursuant to Section 20 of the Act, or any municipality whose population is less than 1,000.

 

"Household": The person or persons occupying a Dwelling Unit.

 

"HUD":  The United States Department of Housing and Urban Development.

 

"IHDA": The Illinois Housing Development Authority.

 

"IHDA Act": The Illinois Housing Development Act [20 ILCS 3805].

 

"IHDA Chairman": The chairman of IHDA.

 

"Initial Pleading": The Initial Pleading submitted by an Affordable Housing Developer as set forth in Section 395.305.

 

"Local Government": A county or a municipality.

 

"Low-Income Housing": Housing that is affordable, according to HUD, for either home ownership or rental and that is occupied, reserved or marketed for occupancy by Households with a gross household income that does not exceed 50% of the Area Median Household Income.

 

"Member": A member of the State Housing Appeals Board.

 

"Moderate-Income Housing": Housing that is affordable, according to HUD, for either home ownership or rental, and that is occupied, reserved or marketed for occupancy by Households with a gross household income that is greater than 50%, but does not exceed 80%, of the Area Median Income.

 

"Non-Appealable Local Government Requirements": All essential requirements that protect the public health and safety, including any local building, electrical, fire or plumbing code requirements or those requirements that are critical to the protection or preservation of the environment.  Zoning, density and bulk restrictions may count as Non-Appealable Local Government Requirements if the Board finds that they qualify under the Act's definition of Non-Appealable Local Government Requirements.

 

"Non-Exempt Local Governments": All Local Governments that are not Exempt Local Governments.

 

"Notice of Appeal": The Notice of Appeal sent to an Approving Authority by the Board as set forth in Section 395.306.

 

"Offices of IHDA": 111 E. Wacker, Suite 1000, Chicago, Illinois 60601.

 

"Public Building": Any building or portion thereof owned or leased by a Public Body. [5 ILCS 120/2.01]

 

"Public Body": All legislative, executive, administrative or advisory bodies of the State, counties, townships, cities, villages, incorporated towns, school districts, and all other municipal corporations, boards, bureaus, committees or commissions of the State, and any subsidiary bodies of any of the foregoing, including, but not limited to, committees and subcommittees supported in whole or in part by tax revenue, or that expend tax revenue, except the General Assembly and committees or commissions of the General Assembly.

 

"Reply": The Reply sent by the Approving Authority in response to an Initial Pleading.

 

"State": The State of Illinois.

 

"Vice-Chairman": The Vice-Chairman of the State Housing Appeals Board.

 

(Source:  Amended at 43 Ill. Reg. 11314, effective September 26, 2019)

 

Section 395.104  Compliance with Federal and State Law

 

Notwithstanding anything in this Part to the contrary, this Part shall be construed in conformity and compliance with applicable federal and State law.

 

Section 395.105  Forms and Procedures for the Program

 

IHDA may prepare, use, supplement and amend forms, agreements and other documents and procedures as may be necessary to implement the duties of the Board, all as may be prescribed by IHDA. 

 

Section 395.106  Fees and Charges

 

The Authority shall not charge the Board any fees or other charges for services it provides to the Board.  The Members shall be reimbursed by the State for all reasonable expenses actually and necessarily incurred in the performance of their official duties.  In the making of reimbursements to the Members, the State may use funds from the Illinois Affordable Housing Trust Fund, pursuant to the Illinois Affordable Housing Act [310 ILCS 65], or such other funds as the State may determine.

 

(Source:  Amended at 43 Ill. Reg. 11314, effective September 26, 2019)

 

Section 395.107  Amendment

 

This Part may be supplemented, amended or repealed by IHDA from time to time and in a manner consistent with the Illinois Administrative Procedure Act [5 ILCS 100], this Part, the Act and other applicable laws.  This Part shall not constitute or create any contractual rights.

 

Section 395.108  Severability

 

If any clause, sentence, paragraph, subsection, Section, or Subpart of this Part is adjudged by any court of competent jurisdiction to be invalid, that judgment shall not affect, impair or invalidate the remainder of this Part, but shall be confined in its operation to the clause, sentence, paragraph, subsection, Section or Subpart to which the judgment is rendered.

 

Section 395.109  Gender and Number

 

All terms used in any one gender or number shall be construed to include any other gender or number as the context may require.

 

Section 395.110  Titles and Captions

 

Titles and captions of Subparts, Sections and subsections are used for convenience and reference and are not a part of the text. 

 

Section 395.201  Jurisdiction

 

The Board shall have jurisdiction to hear and render decisions regarding appeals filed by Affordable Housing Developers in connection with applications for Affordable Housing Developments when Approving Authorities have either denied the applications or approved the applications with conditions that, in the opinion of the Affordable Housing Developer, may render the Affordable Housing Developments infeasible. In connection with appeals filed by Affordable Housing Developers, the Board shall also have jurisdiction to hear and render decisions affecting the exempt or non-exempt status of Local Governments under the Act.

 

Section 395.202  Organization of the Board

 

The duties of the Board are governed by the Act and this Part.  The Board shall consist of 7 Members appointed by the Governor.

 

a)         Chairman:  A retired Illinois circuit judge or retired Illinois appellate judge who is a Member.

 

b)         Vice Chairman:  The Board shall annually elect from its Members a Vice-Chairman.  In the absence of the Chairman or in the event of his or her inability or refusal to act, the Vice-Chairman shall perform the duties of the Chairman.  In the event of the absence of the Chairman or the Vice-Chairman from a meeting of the Board, or in the event of their inability or refusal to act, the Chairman shall designate some Member to act in his or her place and stead, and that designated Member shall have the powers of and be subject to all the restrictions upon the Chairman.

 

c)         Other Members:  Other Members, who are appointed from time to time by the Governor, are as follows:

 

1)         a zoning board of appeals member;

 

2)         a planning board/commission member;

 

3)         a mayor or municipal council or board member;

 

4)         a county board member;

 

5)         an affordable housing developer;

 

6)         an affordable housing advocate.

 

d)         Ex Officio Member:  The IHDA Chairman, ex officio, shall serve as a non-voting Member.

 

e)         No more than 4 of the appointed Members may be from the same political party.  Appointments under subsections (c)(1), (c)(2), and (c)(3) shall be from Non-Exempt Local Governments.

 

f)         Initial terms of 4 Members designated by the Governor shall be for 2 years.  Initial terms of 3 Members designated by the Governor shall be for one year.  Thereafter, Members shall be appointed for 2 years.  After a Member's term expires, the Member shall continue to serve until a successor is appointed.  There shall be no limit to the number of terms an appointee may serve.

 

g)         A Member shall receive no compensation for his or her services; however, Members shall be reimbursed by the State for all reasonable travel and administrative expenses actually and necessarily incurred in the performance of their official duties. 

 

h)         The Board shall hear all petitions for review filed under the Act and shall conduct hearings in accordance with this Part.

 

i)          The principal office of the Board shall be the Offices of IHDA with office hours that are coterminous with the office hours of IHDA.  IHDA shall provide space, clerical assistance and other assistance that the Board may require.

 

(Source:  Amended at 43 Ill. Reg. 11314, effective September 26, 2019)

 

Section 395.203  Meetings of the Members

 

a)         Compliance with Open Meetings Act:  All meetings of the Board shall be in compliance with the Illinois Open Meetings Act [5 ILCS 120].

 

b)         Regular Meetings:  The regular meetings of the Board shall be held at the Offices of IHDA, at least annually, with the specific date for the annual meeting to be set no later than January 1 of each calendar year.  The Board may hold a regular meeting simultaneously at the Offices of IHDA and one or more other locations in a Public Building through an interactive video conference if public notice and public access are provided for all meeting locations.  Members physically present in those locations shall count towards determining a quorum. [5 ILCS 120/2.01] If there are no appeals, other applicable context, or other business to come before the Board, the Chairman may cancel a regular meeting.  Notice of cancellation shall be provided to Members in the same manner as notice of special, emergency and reschedule meetings, as set forth in subsection (f), and shall also be posted at the Offices of IHDA and on IHDA's website.

 

c)         Rescheduled Meetings:  A regular meeting of the Board may be rescheduled as determined by the Chairman, in which event notice of the rescheduled meeting shall be given in accordance with the Open Meetings Act.

 

d)         Special Meetings:  Special meetings of the Board may be called at any time by the Chairman or upon request of any 2 Members of the Board.  Public notice of the special meeting, except a meeting held in the event of a bona fide emergency, or of any rescheduled regular meeting described in subsection (c), or of a reconvened meeting shall be given at least 48 hours before the meeting.  Notice of the special meeting, and the agenda for the meeting, shall be posted at the Offices of IHDA and on IHDA's website. [5 ILCS 120/2.02]

 

e)         Emergency Meetings:  Emergency meetings of the Board may be called at any time by the Chairman or upon request of any 2 Members of the Board.  Public notice of the emergency meeting shall be given as soon as practicable, but in any event, prior to the holding of the meeting. 

 

f)         Notice of Meetings:  The Board, through IHDA, shall publish a schedule of its regular meetings by January 1 of each calendar year listing the dates, times and places of the meetings.  The schedule shall be posted at the Offices of IHDA and on IHDA's website.  No notice of regular meetings, as provided for in subsection (b) need be given to any Member.  Notice in writing of all special, emergency and rescheduled meetings shall be delivered personally or via electronic mail, or shall be mailed to each Member at his or her business or home address.  If mailed, the notice shall be deemed to be delivered when deposited in the United States mail in a sealed envelope addressed to the Member, with postage prepaid.  Any Member may waive notice of a special, emergency or rescheduled meeting and attendance at the meeting shall constitute a waiver of notice of the meeting except when a Member attends for the express purpose of objecting to the meeting because the meeting was not lawfully called or convened.

 

g)         Quorum:  A majority of the appointed Members of the Board shall constitute a quorum.  A quorum must be physically present at any meeting of the Board.  A Member attending a meeting via video conference as provided for in subsection (b) will be considered physically present for the purposes of determining a quorum and voting.  The affirmative vote of a majority of the appointed Members shall be necessary for any action taken by or in the name of the Board at any meeting.  If less than a quorum is present at a meeting, a majority of the Members present may adjourn the meeting from time to time.  No vacancy in the membership of the Board shall impair the right of a quorum to exercise all of the rights and perform all of the duties of the Board.

 

h)         Attendance By Means Other Than Physical Presence: 

 

1)                  If a quorum is physically present at a meeting of the Board, a Member may attend the meeting via audio or video conference only if the Member cannot attend because of:

 

A)                personal illness or disability;

 

B)                employment purposes or other business of the Board; or

 

C)                a family or other emergency [5 ILCS 120/7].

 

2)                  The Member must notify the Chairman of his or her intention to attend the meeting via audio or video conference at least 48 hours before the meeting unless impracticable.  A Member cannot attend more than one regularly scheduled meeting of the Board for that calendar year via audio or video conference unless the Member presents a document from his or her physician attesting to the Member's inability to physically attend a meeting or meetings.  If one or more Members attend via audio or video conference, the Board, through IHDA, shall issue a written notice at the meeting stating the names of the Members present by audio or video conference, the electronic means that the Members will use to attend the meeting, and the location of the speakerphone or monitor receiving and transmitting the communications from the Members present by audio or video conference.  The Member must then identify himself or herself by name and be recognized by the Chairman or other presiding officer before communicating.  The minutes of the meeting shall reflect which Members were physically present and which Members were present via video or audio conference.

 

i)          Records:  A full and complete record shall be kept of all Board proceedings.  IHDA shall be the official custodian of the records. Oral proceedings shall be recorded electronically, stenographically or by other means that will adequately ensure the preservation of the testimony or oral proceedings and shall be transcribed on the request of any party to a case. Transcription costs, if any, shall be borne by the party requesting the transcript.  Other records shall consist of the following:

 

1)         all pleadings, including all notices and responses to those pleadings, and all motions and ruling;

 

2)         a transcript of the hearing, if any;

 

3)         all evidence received;

 

4)         a statement of matters officially noticed;

 

5)         any offers of proof, objections and rulings on that proof;

 

6)         any proposed findings and exceptions;

 

7)         any decision, opinion or report of the Board;

 

8)         all staff memoranda or data submitted to the Board by IHDA in connection with the consideration of a case before the Board; and

 

9)         Any prohibited ex parte communications. [5 ILCS 100/10-35(a)]

 

(Source:  Amended at 43 Ill. Reg. 11314, effective September 26, 2019)

 

Section 395.204  Conduct of the Board

 

a)         Authority:  The Board shall have all the powers necessary and appropriate to conduct a full, fair and impartial hearing, including, but not limited to, the following:

 

1)                  to administer oaths and affirmations;

 

2)         to rule upon offers of proof and receive relevant evidence;

 

3)         to issue subpoenas;

 

4)         to provide for discovery and to determine its scope;

 

5)         to regulate the course of the hearing and the conduct of the parties and their counsel;

 

6)         to consider and rule upon procedural requests;

 

7)         to require or hold conferences for the settlement or simplification of the issues;

 

8)         to examine witnesses, direct witnesses to testify, limit the number of times a witness may testify, limit repetitive or cumulative testimony, and set reasonable limits on the amount of time a witness may testify;

 

9)         to ensure that the hearing is conducted in a full, fair and impartial manner, that order is maintained, and that unnecessary delay is avoided in the disposition of the hearing;

 

10)         to dismiss appeals in accordance with the Act; and

 

11)         to affirm, reverse or modify the conditions of or add conditions to a decision of an Approving Authority.

 

b)         Disqualification of Members of the Board:  No person who is a Member of the Board shall engage in practice before the Board in any respect.  No person who has been a Member of the Board shall, for one year after termination of membership on the Board, engage in practice before the Board in any respect.  No person who has been a Member of the Board shall engage in any practice before the Board in connection with any case or proceeding that was pending during that person's membership with the Board.  No Member of the Board shall participate in any hearing or other proceeding before the Board regarding an Affordable Housing Development in which that Member has a direct or indirect financial interest.

 

c)         Ex Parte Communications:

 

1)         Except in the disposition of matters that the Board is authorized to entertain or dispose of on an ex parte basis, the Board and IHDA staff shall not, with respect to any pending or contested appeal, communicate directly or indirectly in connection with any issue of fact before the Board, with any party or the representative of any party, except upon notice and an opportunity for all parties to participate.

 

2)         An ex parte communication received by any member of the Board or any employee or member of IHDA pertaining to a pending appeal shall be made a part of the record of the pending appeal, including all written communications, all written responses to the communications, and a memorandum stating the substance of all oral communications and all responses made and the identity of each person from whom the ex parte communication was received.

 

3)         Ex Parte communications prohibited by the Illinois Administrative Procedure Act [5 ILCS 100] shall not form the basis of any decision of the Board.

 

4)         Communications regarding matters of practice and procedure, such as the status of appeals, filing requirements, form letters, scheduling of hearings, format of pleadings, number of copies required, manner of service, and the like are not considered ex parte communications under this Part.

 

d)         Contumacious Conduct:  Contumacious Conduct at any hearing before the Board shall be grounds for exclusion from the hearing.  If a witness or a party fails to appear or refuses to answer a question after being directed to do so or refuses to obey an order to provide or permit discovery, the Board may issue orders with regard to the failure to appear or the refusal as are just and appropriate, including, but not limited to, excluding the testimony of witnesses, entering an order of default, entering an order that certain facts are deemed admitted for purposes of the proceeding, or entering an order denying the application or complaint of a party.

 

(Source:  Amended at 43 Ill. Reg. 11314, effective September 26, 2019)

 

Section 395.301  Service of Documents

 

All Initial Pleadings and all documents in connection with any hearing before the Board under this Subpart shall be served by the party filing the document on the Board, the Approving Authority, the Affordable Housing Developer and all other parties to the proceedings.  Service of any document upon any party may be made personally, by certified or registered mail with return receipt signed by the person or their registered agent, or by private delivery service.  If service is made by United States mail, service shall be presumed complete 3 days after mailing, if proof of service shows the document was properly addressed.  This presumption may be overcome by the addressee with evidence establishing that the document was not delivered or delivered at a later date.  A party's failure to accept or claim a document served by mail shall not be grounds for overcoming the presumption.  Proof of service shall be made by affidavit of the person making personal service that includes the name and address of the party served and the date and manner of service, or by a properly executed registered or certified mail receipt. 

 

Section 395.302  Computation of Time

 

All petitions, evidence, motions and other written correspondence sent by United States mail to the Board shall be considered filed with the Board as of the postmark date in accordance with the Illinois Statute on Statutes [5 ILCS 70/1.25].  Petitions, evidence, motions and all other written correspondence sent to the Board by a delivery service other than the United States mail shall be considered as filed with the Board on the date sent as indicated on the tracking label. 

 

Section 395.303  Parties

 

a)                  Substitution of the Parties: The Board may, on motion, at any time in the course of any proceeding, permit a substitution of parties as justice or convenience may require.

 

b)                  Intervention:  The Board may allow any person or persons showing that they may be substantially and specifically affected by the proceedings to intervene as a party in the whole or in any portion of the proceedings.  The Board may allow any other interested person to participate by presentation of argument orally or in writing or for any other limited purpose, as the Board may order.  The Board shall not allow a person to intervene if his or her interests are substantially similar to those of any party and no showing is made that one or more of the parties will not diligently represent those interests.  Being a resident, land owner or taxpayer of a Local Government, with no other showing of an issue that is not being adequately addressed by one of the parties, shall not be sufficient to sustain intervention.

 

Section 395.304  Consolidation, Severance and Joinder

 

Any person entitled to participate in proceedings subject to the Board's jurisdiction may appear as follows:

 

a)         A natural person may appear on his or her own behalf or by an attorney who is licensed and registered to practice in the State.

 

b)         A corporation may appear through any officer, employee or representative or by an attorney who is licensed and registered to practice in the State.

 

c)         Any other person, including Local Governments, Approving Authorities, the State and all of its political subdivisions, may appear through any officer, employee or representative, or by an attorney who is licensed and registered to practice in the State.

 

1)         Attorneys not licensed and registered to practice in the State may request to appear on a particular matter by filing a motion with the Board.

 

2)         An attorney appearing in a representative capacity shall file a separate written notice of appearance with the Board, together with proof of service and notice of filing on all parties.

 

3)         An attorney who has appeared in a representative capacity and who wishes to withdraw from that representation shall file a notice of withdrawal with the Board, together with proof of service and notice of filing on all parties.

 

Section 395.305  Initial Pleadings by Affordable Housing Developers

 

Affordable Housing Developers must submit written Initial Pleadings to the Board and must serve written Initial Pleadings on the Approving Authority and all other parties within 45 Days after the final action or decision of an Approving Authority to deny an application for an Affordable Housing Development.  In the case of Local Governments that are determined by IHDA to be a Non-Exempt Local Government for the first time after August 9, 2013, no Affordable Housing Developer shall appeal to the Board until 60 months after the Local Government has been notified of its non-exempt status.  An Initial Pleading may be submitted in paper form or on compact disc.  An Initial Pleading shall contain 3 copies of the following:

 

a)         a clear and concise statement of the prior proceedings before all Approving Authorities, including the date of notice of the decision the Affordable Housing Developer is appealing; 

 

b)         a clear and concise statement of the Affordable Housing Developer's objections to the Approving Authority's decision, indicating why the Affordable Housing Developer believes the application to develop Affordable Housing was unfairly denied, which may include an appeal of IHDA's determination of the exempt status of the Local Government as set forth in Section 395.401, or what conditions, if any, were imposed that the Affordable Housing Developer believes were unreasonable;

 

c)         a clear and concise statement setting forth the relief sought;

 

d)        the complete name and address of the Affordable Housing Developer for the purpose of service of papers in connection with the appeal;

 

e)         the name and address of the attorney or attorneys representing the Affordable Housing Developer, if any; and

 

f)         a complete copy of the application for the Affordable Housing Development, as it was submitted to the Approving Authority, including sufficient information to determine whether the proposal that is the subject of the appeal is Affordable Housing.

 

(Source:  Amended at 38 Ill. Reg. 3596, effective January 21, 2014)

 

Section 395.306  Notice of Appeal

 

a)         Within 5 Days after the Board has received the Initial Pleading filed by the Affordable Housing Developer, the Board shall send a Notice of Appeal and a courtesy copy of the Initial Pleading to the Approving Authority identified in the Initial Pleading.

 

b)         Upon receipt, the Approving Authority shall post the Notice of Appeal in the Approving Authority's office and on the Approving Authority's website.  The Approving Authority shall continue to post the Notice of Appeal for a period of not less than 10 Days.  If the Approving Authority fails or neglects to post the Notice of Appeal in the Approving Authority's office or on the Approving Authority's website, the appeal shall proceed and shall not be impaired.

 

c)         A Notice of Appeal shall include the following:

 

1)         the time, place and nature of the appeal;

 

2)         the legal authority and jurisdiction under which the hearing is to be held;

 

3)         a reference to the particular Section of the Act involved;

 

4)         the consequences of a failure to respond and the official file or other reference number; and

 

5)         the name and mailing address of the Board and all parties.

 

(Source:  Amended at 43 Ill. Reg. 11314, effective September 26, 2019)

 

Section 395.307  Dismissal before Hearing

 

a)         Within 10 Days after receipt of the Notice of Appeal from the Board, the Approving Authority may file a motion to dismiss the appeal under the following circumstances:

 

1)         pursuant to Section 20(c) of the Act, the Local Government was determined to be exempt pursuant to Section 20 of the Act in the year in which the appeal was filed. If applicable, the Local Government shall address any allegations by the Affordable Housing Developer, pursuant to Section 395.401, that the determination the Local Government is exempt from the Act is incorrect; or

 

2)         pursuant to Section 30(d) of the Act, the Local Government has adopted an Affordable Housing Plan, has submitted that plan to IHDA within the required time frame, and has submitted documentation to IHDA that evidences the Local Government has met its goal pursuant to Section 25(b)(iv) of the Act, subject to the written approval of IHDA in its discretion; or

 

3)         pursuant to Section 30(e) of the Act, the denial is based upon Non-Appealable Local Government Requirements.

 

b)         A motion to dismiss before a hearing shall include the following:

 

1)         a statement explaining why the appeal should be dismissed; and

 

2)         if appropriate, any documents or material supporting the claim.

 

c)         On the same day that the Approving Authority files a motion to dismiss with the Board, the Approving Authority shall serve a complete copy of the motion to dismiss on the Affordable Housing Developer and any other parties at the address or addresses specified in the Initial Pleading.

 

d)         If the Approving Authority files a motion to dismiss prior to the hearing, the Affordable Housing Developer may file a rebuttal within 10 Days after the filing of the motion to dismiss, rebutting any of the claims made in the Approving Authority's motion to dismiss.

 

e)         The Board shall decide the Affordable Housing Developer's rebuttal on the merits.  If the Board determines that the Affordable Housing Developer has successfully rebutted the claims made in the Approving Authority's motion to dismiss, the Board shall deny the motion to dismiss and the issues raised in the motion to dismiss and the response shall be questions of fact to be resolved as part of the appeals process; otherwise, the Board may dismiss the appeal and, if dismissed, the Approving Authority shall not be required to file a Reply.

 

(Source:  Amended at 43 Ill. Reg. 11314, effective September 26, 2019)

 

Section 395.308  Reply to the Initial Pleading by Approving Authority

 

a)         If an appeal is not dismissed before the hearing pursuant to Section 395.307, within 15 Days after the Board's decision to deny the motion to dismiss, the Approving Authority shall file a Reply to the Initial Pleading with the Board and shall provide a copy of the Reply to the Initial Pleading to the Affordable Housing Developer and all other parties.  If no motion to dismiss is filed, the Approving Authority shall file a Reply to the Initial Pleading with the Board and shall provide a copy of the Reply to the Initial Pleading to the Affordable Housing Developer and all other parties within 15 Days after the Notice of Appeal.

 

b)         The Reply to the Initial Pleading shall include the following:

 

1)                  a statement explaining why the application that is the subject of the appeal was denied or conditions were applied, which may include an appeal of IHDA's determination of the non-exempt status of the Local Government under the Act as set forth in Section 395.401. If the Approving Authority denied an application or imposed conditions because it concluded that the Affordable Housing Developer did not comply with all Non-Appealable Local Government Requirements, the Reply to the Initial Pleading must specify the requirements that justify the denial or the imposition of changes;

 

2)                  a record of the vote on the Affordable Housing Developer's application that is the subject of the appeal; and

 

3)                  any findings of fact related to the application.

 

c)         The failure to file a Reply to the Initial Pleading shall be deemed a general denial of matters asserted in the Initial Pleading and a waiver of all affirmative defenses.

 

d)         A party may participate in the hearing without forfeiting any jurisdictional objection, if the objection is made within 15 Days after receipt of the Notice of Appeal. Any party may file a response to the objection within 15 Days after service.

 

(Source:  Amended at 43 Ill. Reg. 11314, effective September 26, 2019)

 

Section 395.309  Prehearing Conferences, Settlement Conferences, Subpoenas and Depositions

 

a)         Pre-hearing Conferences:  The Board may, on its own motion or on motion of any other party to the appeal, set a pre-hearing conference.  The Board's decision whether to conduct a pre-hearing conference will be based on the complexity of the appeal, the issues in controversy and the potential for settlement.  The Board shall issue a pre-hearing conference order setting forth the matters agreed to and rulings as to disputed matters.  The order shall be served concurrently upon all parties and the Board shall control the subsequent course of the proceedings.  The purpose of the pre-hearing conference shall be to:

 

1)         ascertain the positions of the parties;

 

2)         promote the narrowing of witnesses;

 

3)         allow for the admissions of fact and stipulation of evidence;

 

4)         exchange witness lists;

 

5)         aid in the simplification of the evidence and disposition of the proceedings; or

 

6)         reach a compromise settlement agreeable to the parties.

 

b)         Settlement Conferences:  At any stage of the appeal and at its direction, the Board may order a settlement conference and require the participation of the parties.  Within 15 Days after the beginning of a settlement conference, the parties shall inform the Board in writing whether a settlement was reached.  Settlement conferences need not be recorded.

 

c)         Subpoenas:  At any stage of the appeal and at its direction, the Board may issue subpoenas requiring the attendance and the giving of testimony by witnesses, or the production of books, papers, records, accounts, memoranda or other materials relevant to the appeal.  Subpoenas may be issued either upon the Board's own motion or upon the written request of any party with a showing of the relevancy of the request to the issues in the hearing.  In cases in which the Board receives a request for a subpoena, the Board shall grant or deny the request, either in writing or on the record.  If any party fails or neglects to appear or testify or produce books, papers and records pursuant to the issuance of a subpoena by the Board, the Board may request the assistance of the Attorney General to invoke the aid of the circuit court within the jurisdiction in which the hearing is being held to request that the party be ordered to appear before the Board to testify or produce the requested evidence.

 

1)         Service: The movant shall serve the subpoena on the other party or witness if the movant's request for a subpoena is granted.  Service of a subpoena must be completed 10 Days before the date of the required appearance or production.  The movant shall be responsible for payment of the witness fees for attendance, subsistence and mileage at the time the subpoena is served.  Witnesses appearing at a hearing pursuant to subpoena are entitled to the same fees and mileage as are allowed witnesses in civil cases in the courts of the State, pursuant to Section 4.3 of the Circuit Court Act [705 ILCS 35/4.3].  The movant must tender all fees with the subpoena.  A witness appearing at the request of the Board shall submit the subpoena with a voucher when claiming reimbursement.

 

2)         Modification:  The Board, upon motion made before the time initially specified in the subpoena for compliance, may quash or modify the subpoena if it is unreasonable, oppressive or irrelevant.  The Board shall rule upon motions to quash or modify material requested in the subpoena, or denying, limiting or conditioning the production of information when necessary to prevent undue delay, undue expense, harassment or oppression, or to protect materials from disclosure.  If the request for a subpoena is denied or modified, the Board shall proceed to conduct the hearing and the reasons for denying or modifying the request shall be made part of the record.

 

d)         Depositions: Discovery depositions and evidence depositions may be taken of a witness or a party only upon order of the Board, either at its own initiative or upon motion of a party.  The Board shall rule on such motions at its discretion.  In taking such a deposition, the procedures in Illinois Supreme Court Rules (S.Ct. Rules 201 through 230) shall be followed, except as modified by order of the Board.  Discovery depositions shall not be allowed into evidence in any matter before the Board.

 

e)         Stipulations:  At the discretion of the Board, the parties may, by stipulation in writing filed with the Board at any stage of the proceeding, or orally made at the hearing, agree upon any pertinent facts in the proceeding.  In making its findings, the Board need not be bound to any such stipulation.

 

Section 395.310  Conduct of Hearings

 

a)         Hearings may begin within 45 Days after the Initial Pleading is filed, unless the Board determines that a settlement conference is underway and is likely to resolve the matters in dispute to the satisfaction of both parties.

 

b)         The Affordable Housing Developer shall present its case first, followed by questions from the Board.

 

c)         The Approving Authority shall present its case second, followed by questions from the Board.

 

d)         In the event that a Local Government's exempt or non-exempt status under the Act is appealed and the issue has not been disposed of by motion of either of the parties, then, pursuant to Section 395.401, IHDA shall produce all written guidance and any other relevant materials regarding the Local Government's exempt or non-exempt status for the Board's review.

 

e)         With respect to Non-Appealable Local Government Requirements, if there is disagreement between the Approving Authority and the Affordable Housing Developer as to whether a particular requirement is a Non-Appealable Local Government Requirement, the Board may make that determination based on whether the specific requirement in question meets the statutory definition of Non-Appealable Local Government Requirements.

 

f)         Both parties shall be permitted to cross-examine witnesses; however, the scope of any such cross-examination shall be limited to the scope of the direct examination.

 

g)         Both parties shall be permitted to make closing statements; closing statements shall not include facts not previously introduced.

 

h)         The Board, upon motion of any Member or on the motion of a party, may amend a complaint to conform to the evidence presented in the hearing or to include uncharged allegations supported by the evidence at any time prior to the issuance of the Board's decision and order.

 

Section 395.311  Motions

 

a)         Motions shall be made in writing, unless made during the hearing, at which time the motions may be made orally, on the record.  All motions shall set forth the relief or order sought and the legal authority for the action requested.  If made in writing, at least 2 copies of all motions shall be filed with the Board, and at least one copy shall be served on each additional party to the hearing.

 

b)         Within 10 Days, or other period as the Board may require, after service of a written motion or other document, a party may file a response to the motion.  The response may include affidavits or other evidence.

 

c)         A written brief may be filed with a motion or a response to a motion, stating the arguments and authorities relied upon.  The brief shall be no longer than 15 pages in length unless, prior to the filing date, leave is granted by the Board to file a brief greater than 15 pages in length.

 

d)         The Board may allow oral arguments to be heard on a motion.

 

e)         The Board shall rule upon all motions, except that it shall have no authority to dismiss or decide an appeal on the merits without granting all parties to the proceeding a right to be heard and to establish a record.

 

f)         The Board will dispose of motions by written order and on notice to all parties.

 

g)         Unless otherwise ordered, the filing of an answer or motion shall not stay the proceeding or extend the time for the performance of any act.

 

h)         A party has a right to file an emergency motion setting forth why an emergency exists and the Board may deny the emergency motion solely on the basis that the motion did not demonstrate that an emergency exists or the Board may grant or deny the motion on other grounds.

 

Section 395.312  Postponement or Continuance of Hearing

 

Postponement or continuances of hearings shall be granted by order of the Board for good cause shown in writing. Good cause shall be the inability to attend the hearing at the date and time set by the Board for a cause beyond the control of the party, such as the unavoidable absence of a party, his or her attorney or material witness, or the serious illness or death of a witness or party.  The Board shall re-set the hearing for a continued case unless the parties request that the Board decide the appeal based on the evidence in the record without a formal hearing.  Notwithstanding any continuance, the Board shall issue, whenever possible, a final decision within 120 days after the Initial Pleading is filed.  The Board may extend the time by which it will render a decision when circumstances outside the Board's control make it infeasible for the Board to render a decision within 120 days.

 

(Source:  Amended at 38 Ill. Reg. 3596, effective January 21, 2014)

 

Section 395.313  Evidence

 

a)         A party shall be entitled to present its case by testimonial or documentary evidence, to submit rebuttal evidence, and to conduct cross-examination as may be required for a full and fair disclosure of facts. [5 ILCS 100/10-40(b)] Testimonial evidence shall be taken only on oath or affirmation.  Any cross-examination shall be limited to the scope of the direct examination.

 

b)         The rules of evidence and privilege that apply in civil cases in Illinois circuit courts shall be followed.  However, evidence not admissible under those rules may be admitted (unless precluded by statute) if it is of a type commonly relied upon by reasonably prudent men in the conduct of their affairs.  [5 ILCS 100/10-40(a)] 

 

c)         The Chairman shall have the discretion to determine whether evidence being offered is reliable and whether the evidence should be admitted.  The Chairman may exclude evidence that is irrelevant, immaterial or unduly repetitious. (See 5 ILCS 100/10-40(a).)

 

d)         Subject to the requirements of this Subpart, when a hearing will be expedited and the interest of the parties will not be prejudiced, the Chairman may allow evidence to be received in written form. [5 ILCS 100/10-40(a)]

 

e)         If a party objects to the admission or rejection of any evidence or to the limitation to the scope of any examination or cross-examination, or to the failure to limit that scope, that party shall state briefly the grounds for the objection.  Rulings on all objections shall appear in the record.   

 

f)         Official Notice:  Official notice may be taken of any material fact not appearing in evidence in the record if the circuit courts of this State could take judicial notice of the fact.  In addition, notice may be taken of generally recognized technical or scientific facts within the Board's specialized knowledge.  Parties shall be notified either before or during the hearing of the material noticed, including any memoranda or data prepared by IHDA staff, and the parties shall be afforded an opportunity to contest the facts noticed.  The experience, technical competence and specialized knowledge of the Board and IHDA may be utilized in the evaluation of the evidence. [5 ILCS 100/10-40(c)]

 

g)         Types of Evidence:  The Board shall hear evidence only as to matters actually in dispute.  Factual areas in which evidence may be heard if it is relevant to issues in dispute include, but are not limited to, the following:

 

1)         health, safety and the environment

 

A)        structural soundness of the proposed buildings;

 

B)        adequacy of sewage arrangements;

 

C)        adequacy of water drainage arrangements;

 

D)        adequacy of fire protection;

 

E)        adequacy of the Affordable Housing Developer's proposed arrangements for dealing with traffic circulation within the site, and feasibility of arrangements that could be made by the Local Government for dealing with traffic generated by the proposed housing on adjacent streets;

 

F)         proximity of the proposed site to airports, industrial activities or other activities that may affect the health and safety of the occupants of the proposed housing;

 

2)         site and building design

 

A)        height, bulk and placement of the proposed housing;

 

B)        physical characteristics of the proposed housing;

 

C)        height, bulk and placement of surrounding structures and improvements;

 

D)        physical characteristics of the surrounding land;

 

E)        adequacy of parking arrangements;

 

F)         adequacy of open areas, including outdoor recreational areas, proposed within the building site;

 

3)         open space

 

A)        availability of existing open spaces in the Local Government;

 

B)        current and projected utilization of existing open spaces and consequent need, if any, for additional open spaces, by the Local Government's population, including occupants of the proposed housing;

 

C)        relationship of the proposed site to any Local Government open space or outdoor recreation plan officially adopted by the applicable corporate authorities of the Local Government, and to any official actions to preserve open spaces taken with respect to the proposed site by the Local Government prior to the date of the Affordable Housing Developer's initial submission; the inclusion of the proposed site in the open space or outdoor recreation plan shall create a presumption that the site is needed to preserve open spaces unless the Affordable Housing Developer produces evidence to the contrary;

 

D)        relationship of the proposed site to any regional open space plan prepared by the applicable regional planning agency;

 

E)        current use of the proposed site and of land adjacent to the proposed site;

 

F)         inventory of site suitable for use as open spaces, and available for acquisition or other legal restriction as open spaces, in the Local Government, provided that the Board shall admit no evidence of any open space plan adopted only by the local conservation commission or other local body but not officially adopted by the planning board/commission;

 

4)         municipal planning

 

A)        a Local Government's master plan, comprehensive plan or community development plan; and

 

B)        the results of the Local Government's efforts to implement those plans;

 

5)         The uniform application, or lack thereof, of any impact fees, building permit fees and any other local fees.

 

(Source:  Amended at 43 Ill. Reg. 11314, effective September 26, 2019)

 

Section 395.314  Affordable Housing Developer's Burden of Proof

 

a)         Denial: Pursuant to Section 30(c) of the Act, in the case of a denial of an Affordable Housing Developer's application, the Affordable Housing Developer bears the burden of demonstrating that the Approving Authority unfairly denied approval of the Affordable Housing Development.  To meet this burden, the developer must prove that it is an Affordable Housing Developer and has proposed an Affordable Housing Development. In addition, the Affordable Housing Developer shall demonstrate that:

 

1)         the proposed Affordable Housing Development complies with all Non-Appealable Local Government Requirements and all relevant federal and State statutes and regulations. The Affordable Housing Developer must prove these elements with respect to only those aspects of the project that are in dispute;

 

2)         Non-Appealable Local Government Requirements or federal or State statutes or regulations have been applied differently to proposals that do not include Affordable Housing;

 

3)         the Approving Authority has a pattern of denying applications to develop Affordable Housing;

 

4)         the Approving Authority changed the zoning of an area regarding a specific Affordable Housing Development that, but for the change in zoning, is otherwise able to proceed, or has a pattern of changing zoning of an area in regards to Affordable Housing Developments that, but for the change in zoning, are otherwise able to proceed;

 

5)         the Approving Authority unreasonably or intentionally delayed its decision regarding a specific Affordable Housing Development that, but for the lack of timely decision by the Approving Authority, is otherwise able to proceed, or has a pattern of unreasonably or intentionally delaying its decisions on applications for Affordable Housing Developments that, but for the lack of timely decisions of the Approving Authority, are otherwise able to proceed;

 

6)         IHDA's determination that the Local Government is exempt from the Act is incorrect based on the counting protocols set forth in Section 20 of the Act and any written guidance published by IHDA; or

 

7)         the denial of the application for the Affordable Housing Development was unfair because it otherwise inhibits the construction of Affordable Housing.

 

b)         Approval with Conditions: Pursuant to Section 30(c) of the Act, in the case of an approval with conditions, the Affordable Housing Developer bears the burden of demonstrating that the Approving Authority imposed unreasonable conditions on the proposed Affordable Housing Development.  To meet this burden, the Affordable Housing Developer must prove the developer is an Affordable Housing Developer that has proposed an Affordable Housing Development. The Affordable Housing Developer shall also demonstrate:

 

1)         the Approving Authority has generally not imposed unreasonable conditions on similar developments; or

 

2)         the conditions are not necessary to further the asserted Approving Authority interest; or

 

3)         less costly conditions can be imposed on the proposed Affordable Housing Development that sufficiently address the asserted Approving Authority's interest.

 

c)         The failure of a Local Government to submit an Affordable Housing Plan as set forth in Section 25 of the Act shall not prevent an Affordable Housing Developer from filing an appeal with the Board.  The Board may take into consideration the failure to submit an Affordable Housing Plan in connection with any appeal before the Board.

 

(Source:  Amended at 43 Ill. Reg. 11314, effective September 26, 2019)

 

Section 395.315  Standard of Proof

 

The standard of proof for any hearing conducted under this Part shall be the preponderance of the evidence.

 

Section 395.316  Decision

 

a)         The Board shall render a written decision within 120 Days after the Initial Pleading is filed.  Notwithstanding the foregoing, the Board may extend the time by which it will render a decision when circumstances outside the Board's control make it infeasible for the Board to render a decision within 120 Days.  The written decision shall state the Board's findings of fact and conclusions of law.  Findings of fact shall be based exclusively on the evidence presented and on matters officially noticed.

 

b)         The Board shall dismiss the appeal during or after the hearing if, based on all relevant evidence presented, it concludes that:

 

1)         the Local Government was an Exempt Local Government in the year in which the appeal was filed;

 

2)         the Local Government has adopted an Affordable Housing Plan, has submitted that plan to IHDA within the required time-frame under the Act, and has submitted documentation to IHDA that evidences the Local Government has met its goal to provide Affordable Housing as required by the Act; or

 

3)         the Approving Authority denied the Affordable Housing based upon Non-Appealable Local Government Requirements.

 

c)         In the case of a denial, if the Board finds that the Affordable Housing Developer has met its burden of proof pursuant to Section 395.314(a), the Board shall vacate the decision of the Approving Authority and shall direct the Approving Authority to issue the appropriate permits to the Affordable Housing Developer.

 

d)         In the case of conditions imposed by the Approving Authority, if the Board finds that the Affordable Housing Developer has met its burden of proof pursuant to Section 395.314(b):

 

1)         the Board shall direct the Approving Authority to remove any such condition; or

 

2)         if the Board finds that the conditions are unreasonable but can be modified to reasonably protect the health, safety, environmental design, open space, and other local concerns, the Board shall direct the Approving Authority to so modify the conditions.

 

(Source:  Amended at 43 Ill. Reg. 11314, effective September 26, 2019)

 

Section 395.317  Enforcement

 

a)         The Board shall immediately notify the parties of its decision by delivering the decision at the hearing, or by certified or registered mail with return receipt signed by the person or his or her registered agent, or by private delivery service. 

 

b)         In cases in which the Affordable Housing Developer has met its burden of proof as set forth in Section 395.314, the Approving Authority shall carry out the decision and order of the Board within 30 Days after the Board's decision. However, if the Approving Authority can demonstrate that a longer time period is necessary, the Board shall consider a longer time period to carry out the decision of the Board so long as the Approving Authority began to carry out the Board's decision within the initial 30 Day period. 

 

c)         The decision and order of the Board are binding on all parties. The Board can interpret or clarify its decision or order for the purposes of resolving any procedural ambiguities or disputes that may arise.

 

d)         If the Approving Authority does not carry out the decision and order of the Board within the time limits prescribed in Section 395.317(b), the Board may seek representation by the Attorney General's office, pursuant to the Attorney General Act [15 ILCS 205], and may file a complaint in the circuit court for the district in which the Approving Authority subject to the appeal is located. 

 

e)         If the Approving Authority does not carry out the decision and order of the Board within the time limits prescribed in Section 395.317(b), the Affordable Housing Developer may seek legal representation and file a complaint in the circuit court for the district in which the Approving Authority subject to the appeal is located. 

 

Section 395.318  Motions to Reconsider the Board's Decision

 

The affected party may file a motion to reconsider with the Board within 14 Days after the Board's decision.  The Board shall issue its final decision within 14 Days after the receipt of the motion to reconsider.

 

Section 395.319  Appeals of the Board's Decision

 

The final decision and order of the Board, after all motions to reconsider have been exhausted, may be appealed by the party affected by the decision by bringing an action for review in the appellate court for the district in which the Local Government subject to the appeal is located.  The appellate court shall apply the "clearly erroneous" standard when reviewing these appeals.  An appeal of a final ruling of the Board shall be filed within 35 days after the Board's decision and in all respects shall be in accordance with Section 3-113 of the Administrative Review Law [735 ILCS 5/3-113].

 

(Source:  Amended at 43 Ill. Reg. 11314, effective September 26, 2019)

 

Section 395.401  Appeals of IHDA's Determination of a Local Government's Exempt Status

 

In connection with an appeal under Subpart C, a Local Government or an Affordable Housing Developer may appeal IHDA's determination of the Local Government's exempt or non-exempt status under the Act to the extent that the appealing party can demonstrate that IHDA's determination was not made in accordance with the counting protocols set forth in Section 20 of the Act and any written guidance published by IHDA.  The parties shall introduce evidence to support their positions consistent with the requirements of Subpart C.  IHDA shall produce all written guidance and any other relevant materials regarding the Local Government's exempt or non-exempt status for the Board's review.  The Board shall review the evidence provided by the parties and by IHDA and shall issue its decision on the matter in connection with the appeal filed under Subpart C.  The Board may decide the matter during motion practice before the Board or during the hearing.