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ILLINOIS POLLUTION CONTROL BOARD
September 20, 2007
FOX MORAINE, LLC,
Petitioner,
v.
UNITED CITY OF YORKVILLE, CITY
COUNCIL,
Respondent.
KENDALL COUNTY,
Intervenor.
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PCB 07-146
(Pollution Control Facility
Siting Appeal)
HEARING OFFICER ORDER
On August 2, 2007, petitioner Fox Moraine, LLC, (Fox Moraine) served
respondent United City of Yorkville, City Council (Yorkville) with a first set of
interrogatories and first set of requests to admit. On August 23, 2007, Yorkville filed a
motion for a protective order limiting discovery (Mot.), accompanied by a memorandum
of law (Memo.) in support, attaching among other things the discovery requests that are
the subject of this motion. (Memo, Ex. C & D). In its argument for the protective order,
Yorkville argues that petitioner has waived its discovery requests regarding possible bias
or prejudice against petitioner by seven of the nine members of the City Council because
it did not object to these members’ participation as decision makers at the local siting
hearing. Yorkville also filed a motion for stay of discovery pending the hearing officer’s
ruling on the motion for protective order, noting that otherwise Yorkville’s responses
would be due today, September 20, 2007. To date, Fox Moraine has not filed a response.
On August 30, 2007, Fox Moraine filed its response, asserting that discovery was
necessary and that it had not waived issues of bias or prejudice (Resp.). On September
13, 2007, Yorkville filed a motion for leave to file a reply and its reply in favor of
issuance of a protective order. (Reply).
Yorkville’s motion for leave to file a reply is granted. For the reasons set forth
below, Yorkville’s motion for a protective order is denied. As a practical matter,
Yorkville’s motion for a discovery stay has in essence been granted. Yorkville’s
responses are now due to be filed on or before September 28, 2007.
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Procedural Status of the Case
On June 27, 2007, Fox Moraine filed a petition for review asking the Board to
review the May 24, 2007, decision of Yorkville’s decision on petitioner’s proposed siting
of a pollution control facility in Yorkville, Kendall County. Petitioner appealed to the
Board on the grounds that 1) Yorkville’s decision was fundamentally unfair, alleging bias
and prejudice on the part of various and unnamed council members, and 2)Yorkville ’s
findings regarding certain criteria were against the manifest weight of the evidence.
Kendall County was granted intervenor’s status by the Board on August 23, 2007.
The County has not participated in the briefing of this discovery issue.
Pursuant to Fox Moraine’s waiver, the statutory decision deadline in this case is
now due January 24, 2008. Hearing has yet to be scheduled. In the hearing officer order
entered August 20, 2007 after the telephonic status conference entered that day,
Yorkville’s time to respond to outstanding discovery requests was extended to September
20, 2007.
Yorkville ’s Motion For A Protective Order
In its memorandum supporting its motion for a protective order, Yorkville relates
that it held 23 days of public hearings concerning Fox Moraine’s application for siting.
Yorkville also noted that the hearing process fell in the middle of the campaign process
for the City Council, with a new mayor and three new council members being elected on
April 17, 2007. Yorkville acknowledges Fox Moraine objected to two of the nine council
members at the local siting hearing alleging bias, predisposition and unfairness in its
motion to disqualify at the March 7, 2007 hearing. Memo. at 2. Yorkville argues that
because Fox Moraine failed to object at the local siting hearing concerning the other
seven members of the City Council on those grounds, Fox Moraine waived its right to
raise these issues in the proceedings before the Board. Yorkville accordingly objects to
providing discovery concerning, the remaining seven council members Memo. at 2. In
support of its waiver argument, Yorkville cites various siting cases, finding especially
relevant Waste Management of Illinois v. Pollution Control Board
, 175 Ill. App. 3d 1023
(2d Dist. 1988).
See
Memo. at 3-4, and cases cited therein. Yorkville argues that Fox
Moraine’s “discovery requests to the unchallenged seven Council members are
unreasonably burdensome and unduly onerous attempt to uncover some evidence perhaps
relevant to its unsupported claims of unfairness, bias and prejudice”. Memo. at 4.
Petitioner’s Response
On August 30, 2007, Fox Moraine filed a response in opposition (Resp.) to
Yorkville’s motion for a protective order. Fox Moraine argues, in summary, that
Yorkville’s motion “ignores the fact that the Petitioner also seeks evidence of
ex parte
contacts
, as well as evidence of the Council’s consideration of materials outside the
record in reaching its decision, and similarly ignores the time of the post-hearing seating
of three members of the Council.” (Resp. at 3). The petitioner agrees that at the local
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siting hearing, it only moved to disqualify two of the council members alleged to be
biased, but argues that it has not waived its right to discovery requests concerning the
other council members, including the three newly elected Council members.. Resp. at 1-
2. Fox Moraine states that it asked the City to disclose “ the
ex parte
communications;
the gifts and/or transfers between Council members and the Participant/Objectors; the
Council members’ affiliations with the Objector organizations; and the materials and
information outside the record of proceedings which were considered by the Council in
reaching its decision”. Resp. at 2. Fox Moraine characterizes its discovery requests as
“narrowly tailored to result in disclosure of the evidence establishing violations of
fundamental fairness which lie at the heart of the instant appeal. Id. Petitioner argues
that case law and the Board’s procedural rules require disclosure, and that the Waste
Management case cited by respondent is distinguishable on its facts. Resp. at 3-6.
Finally, Fox Moraine argues that the respondent does not allege that the issuance
of a protective order motion would prevent unreasonable expense, or harassment, or to
expedite resolution of the proceeding pursuant to Section 101.616 (d) of the Board’s
procedural rules.
Respondent’s Reply
On September 13, 2007, Yorkville filed a motion for leave to file a reply and its
reply. Yorkville takes issue with Fox Moraine’s allegation that due to the timing of the
newly elected Council members, it could not timely object or move to disqualify the new
members. Yorkville argues that Fox Moraine could have objected below because the
three new Council members were elected on April 17, 2007, and the public hearing did
not close until April 20, 2007. Additionally, Yorkville argues that petitioner could have
moved for disqualification at any time during the post-hearing comment period. Reply at
2.
Finally, Yorkville argues that it “should not be put to the time and expense in
responding to pointless discovery”. Reply at 1.
Discussion
On appeal of a municipality’s decision to grant or deny a siting application, the
Board generally confines itself to the record developed by the municipality. 415 ILCS
5/40.1 (b) (2006). However, the Board will hear new evidence relevant to the
fundamental fairness of the proceedings where such evidence lies outside the record.
Land and Lakes Co. v. PCB , 319 Ill. App. 3d 41, 48, 743 N.E. 2d 188, 194 (3d Dist.
2000). Public hearing before a local governing body is the most critical stage of the site
approval process. Land and Lakes Co. v. PCB
, 245 Ill. App. 3d 631, 616 N.E.2d 349, 356
(1993). The manner in which the hearing is conducted, the opportunity to be heard,
whether
ex parte
contacts existed, prejudgment of adjudicative facts, and the introduction
of evidence are important, but not rigid, elements in assessing fundamental fairness.
American Bottom Conservancy v. Village of Fairmont City, PCB 00-200 (Oct. 19, 2000).
The Board must consider the fundamental fairness of the procedures used by the
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respondent in reaching its decision. 415 ILCS 5/40.1 (a) (2006). Additional evidence
outside the record that may be considered include pre-filing contacts.
See
County of
Kankakee v. City of Kankakee, Town and County Utilities, Inc., and Kankakee Regional
Landfill, LLC., PCB 03-31, 03-33, 03-35 (cons.) (Jan. 23, 2003).
The purpose of discovery is to uncover all relevant information and information
calculated to lead to relevant information. 35 Ill. Adm. Code 101.616(a). The Board’s
rules also allow issuance of a protective order that deny, limit, condition or regulate
discovery to prevent unreasonable expense, or harassment, or to expedite resolution of
the proceeding. 35 Ill. Adm. Code 101.616(d).
Yorkville’s motion for a protective order is denied. When a fundamental fairness
issue is raised before the Board, the whole purpose of discovery is to attempt to uncover
relevant evidence or evidence calculated to lead to relevant evidence that is outside the
record, evidence that is presumably unknown to the party propounding the discovery.
Fox Moraine has persuasively argued that it seeks discovery of information concerning
fundamental unfairness that extends beyond issues of alleged bias and prejudice of
Council Members. Fox Moraine has cited case law and distinguished that cited by
Yorkville sufficient for the hearing officer to conclude that discovery may proceed under
the circumstances of this case. This is particularly so since, as Fox Moraine alleges,
Yorkville does not allege that the requested discovery creates an unreasonable expense or
engenders harassment as set forth in 35 Ill. Adm. Code 616(d). Yorkville states only that
it “should not be put to the time and expense in responding to pointless discovery. Reply
at 1. For all of these reasons, Yorkville’s motion for a protective order is denied.
Yorkville must file its responses to the requested discovery on or before September 28,
2007.
Finally, the procedural rules provide that parties may seek Board review of
discovery rulings pursuant to 35 Ill. Adm. Code 101.616(e). The hearing officer reminds
the parties that the filing of any such appeal of a hearing officer ruling does not stay the
proceeding. In a deadline date case, the hearing officer must manage the case to insure
that discovery, hearing, and briefing schedules allow for timely Board deliberation and
decision of the case as a whole.
IT IS SO ORDERED
Bradley P. Halloran
Hearing Officer
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The ultimate determination as to whether the petitioner has waived any issues as to one
or more Council Members is a decision for the Board, and not the hearing officer, to
make.
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Illinois Pollution Control Board
James R. Thompson Center, Suite
11-500
100 W. Randolph Street
Chicago, Illinois 60601
312.814.8917
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CERTIFICATE OF SERVICE
It is hereby certified that true copies of the foregoing order was mailed, first
class, and faxed on September 20, 2007, to each of the persons on the attached service
list.
It is hereby certified that a true copy of the foregoing order was hand delivered to
the following on September 20, 2007:
John T. Therriault
Illinois Pollution Control Board
James R. Thompson Center
100 W. Randolph St., Ste. 11-500
Chicago, Illinois 60601
Bradley P. Halloran
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street, Suite 11-500
Chicago, Illinois 60601
312.814.8917
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PCB 2007-146
Derke J. Price
Ancel, Glink, Diamond, Bush & Krafthefer, P. C
140 South Dearborn Street
Sixth Floor
Chicago, IL 60603
PCB 2007-146
Charles F. Helsten
Hinshaw & Culbertson
100 Park Avenue
P.O. Box 1389
Rockford, IL 61105-1389
PCB 2007-146
Jeffery D. Jeep, Esq
Jeep & Blazer, L.L.C.
24 Niorth Hillside Avenue
Suite A
Hillside, IL 60162
PCB 2007-146
Leo P. Dombrowski
Wildman, Harrold, Allen & Dixo
225 West Wacker Drive
Suite 3000
Chicago, IL 60606-1229
PCB 2007-146
Anthony G. Hopp
Wildman, Harrold, Allen & Dixon
225 West Wacker Drive
Suite 3000
Chicago, IL 60606-1229
PCB 2007-146
Thomas I. Matyas
Wildman, Harrold, Allen & Dixo
225 West Wacker Drive
Suite 3000
Chicago, IL 60606-1229
PCB 2007-146
George Mueller
Mueller Anderson, P.C
609 Etna Road
Ottawa, IL 61350
PCB 2007-146
Ms Valierie Burd, Mayor
City of Yorkville
800 Game Farm Road
Yorkville, IL 60560
PCB 2007-146
Michael Roth, Interim City Attorney
City of Yorkville
800 Game Farm Road
Yorkville, IL 60560
PCB 2007-146
Eric C. Weis
Kendall County State's Attorney
Kendall County Courthouse
807 John Street
Yorkville, IL 60560
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