1
th day of No
Not
IP •
OFFICI
SEAL
TI ES
A?
ILLINOIS
07/21/10
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
RCELECRIC
ES
1OFFICE
1
6 2007
STANT°
: OF
ILLINOIS
FOX MORAINE, L.L.C.,
?
)
,
Pollution
Control
Board
)
Petitioner
?
)
)
)?
PCB 07-146
v.
?
)?
Pollution Control Facility Siting Appeal
UNITED CITY OF YORKVILLE
?)
CITY COUNCIL,
?
)
Respondent.
?
)
NOTICE OF FILING
TO:
?
See Attached Service List
PLEASE TAKE NOTICE that
on
November
13, 2007,
we
filed before the
Illinois
Pollution Control Board, Kendall County, Illinois, the Friends of Greater Yorkville's Petition to
Intervene, a copy of which is
hereby served
I, the undersigned, on oath, state that I served a copy of this Notice of Filing,
Proof of Service and the aforementioned pleading to the attorneys above-mentioned
through the U.S. Postal Service on November 13, 2007.
Subscribed and Sworn to me this
Walsh, Knippen, Knight & Pollock, Chartered
601 West Liberty Drive
Wheaton, IL 60187
630/462-1980
Service List
Derke J. Price
Ancel, Glink, Diamond, Bush & Krafthefer,
140 South Dearborn Street, 6th Floor
Chicago, Illinois 60603
T: (312) 782.7606
F: (312) 783-0943
Charles Heisten
Hinshaw & Culbertson
100 Park Avenue
P.O. Box 1389
Rockford, Illinois 61105.1389
T: (815) 963.8488
F: (815) 963.9989
Jeffrey D. Jeep, Esq.
Jeep & Blazer, LLC.
24 North Hillside Ave., Ste. A
Hillside, IL 60162
United City of Yorkville
Leo P. Dombrowski
Anthony G. Hopp
Thomas I. Matyas
Wildman, Harrold, Allen & Dixon
225 West Wacker Drive, Ste. 3000
Chicago, Illinois 60606.1229
T: (312) 201-2000
F: (312) 201.2555
James Harvey
Buck, Hutchison & Ruffle
2455 Glenwood Avenue
Joliet, Illinois 60435
T: (815) 729.4800
Fox Moraine, LLC.
George Mueller
Mueller Anderson, P.C.
609 Etna Road
Ottawa, Illinois 61350
T: (815) 431.1500
F: (815) 431.1501
Ms. Valierie Burd, Mayor
Michael Roth, Interim City Attorney
City of Yorkville
800 Game Farm Road
Yorkville, Illinois 60560
Eric Weis
Kendall County State's Attorney
Kendall County Courthouse
807 John Street
Yorkville, Illinois 60560
T: (630) 553-4157
F: (630) 553.4204
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
RECEIVED
CLERK'S
OFFICE
FOX MORAINE, L.L.C.,
Petitioner,
NOV 1 6 2007
STATE OF ILLINOIS
Pollution
Control Board
v.
?
PCB 07-146
Pollution Control Facility Siting Appeal
UNITED CITY OF YORKVILLE,
CITY COUNCIL,
Respondent.
Friends of Greater Yorkville's Petition to Intervene
Now
COMES
Friends of Greater Yorkville, an Illinois not-for-profit corporation, by and
through its attorneys,
WALSH, KNIPPEN, KNIGHT & POLLOCK, CHARTERED,
and pursuant to 35 Ill.
Admin. Code § 101.402, respectfully requests that this Honorable Board permit Friends of
Greater Yorkville to intervene in this proceeding, and that Walsh, Knippen, Knight & Pollock,
Chartered, be granted leave to file an appearance on behalf of Friends of Greater Yorkville; and
in support of this petition it states the following:
1.
Friends of Greater Yorkville is an Illinois not-for-profit corporation consisting of
citizens of the United City of Yorkville and its surrounding area that are opposed to the siting of
a landfill in Yorkville. Friends of Greater Yorkville was formed to serve as an organized, unified
conduit through which those citizens could convey their opinions and concerns with those
persons responsible for deciding on the siting of the landfill.
2.
As part of its Petition for Review before this Board, Petitioner Fox Moraine,
L.L.C., states that the proceedings before the Yorkville City Council were not fundamentally
fair.
3.
One of the reasons that Fox Moraine asserts caused the proceedings before the
Yorkville City Council to be unfair is that "Objectors to the Application, including but not
limited to, participant[] ... Friends of Greater Yorkville engaged in prejudicial
ex parte
contacts
with the members of the Yorkville City Council." (Petn. at II 5(J).)
4.
Friends of Greater Yorkville expects that Fox Moraine will seek depositions and
discovery from its members surrounding the issues of allegedly-ex
parte
contacts that allegedly
occurred between its members and members of the Yorkville City Council. Friends of Greater
Yorkville seeks to have counsel present and participating in the discovery that it expects will be
sought from it.
5.
Further, Friends of Greater Yorkville wishes to file any
amicus curiae
briefs to
the Board that may be necessary to protect its own interests and that of its members. Friends of
Greater Yorkville had a First Amendment right to petition its elected officials to take action
favorable to it.
Stahelin v. Forest Preserve Dist. of DuPage County, ---
Ill. App. 3d ---, 2007 WL
3052853, **7-8 (2d Dist. 10/10/07). This First Amendment principle is commonly known as the
Noerr-Pennington
doctrine.
Id.
The Yorkville City Council has a corresponding "right to listen"
to its citizens' petition that the City Council undertake an act that it has the power to undertake.
Id.
at *8.
6.
Fox Moraine is alleging in its Petition for Review that Friends of Greater
Yorkville's exercise of its First Amendment right to petition caused the Yorkville City Council's
proceedings not to be fundamentally fair. (Petn. at
¶
5(4) It is alleging that this petitioning was
done
ex parte. (Id.)
By its very nature, this allegedly-ex
parte
petitioning would not be preserved
for the record. Therefore, this is not a case where the Yorkville City Counsel will simply be
defending its decision on the record. Instead, Fox Moraine is trying to establish fundamental
unfairness by going outside the record and impugning the petitioning that Friends of Greater
Yorkville brought to its elected officials.
7.
Because it is Friends of Greater Yorkville's petitioning of the Yorkville City
Council that Fox Moraine is alleging as a basis for reversing the Yorkville City Council's
decision on Fox Moraine's application for site location approval, Friends of Greater Yorkville
will be materially prejudiced if it is not allowed to intervene to protect its own First Amendment
right to petition. 35 Ill. Admin. Code § 101.402(d)(2). This material prejudice would arise
because Fox Moraine would be allowed to put on evidence attacking the propriety of Friends of
Greater Yorkville's petitioning activity, but Friends of Greater Yorkville would not be allowed to
defend its own actions.
8.
If Friends of Greater Yorkville is not allowed to intervene, it would have to rely
on the arguments of the impartial government body that it petitioned. Friends of Greater
Yorkville respectfully submits that it does not believe that it has the right to expect an impartial
government body to "take sides" with it on the issue of its allegedly-ex
parte
petitioning activity.
The Yorkville City Council has no responsibility to assert Friends of Greater Yorkville's First
Amendment rights in this situation. If Friends of Greater Yorkville is not allowed to intervene,
there is no party in this case that can adequately protect its First Amendment rights, and because
of this it will be materially prejudiced.
WHEREFORE,
Friends of Greater Yorkville, an Illinois not-for-profit corporation,
respectfully requests that this Honorable Board grant Friends of Greater Yorkville leave to
intervene in this cause of action, and that Walsh, Knippen, Knight & Pollock, Chartered, be
granted leave to file an appearance on behalf of Friends of Greater Yorkville.
James H. Knippen, II
WALSH, KNIPPEN, KNIGHT &
POLLOCK, CHARTERED
601 W. Liberty Dr.
Wheaton, IL 60187-4940
630-462-1980
Respectfully submitted,
WALSH, KNIPPEN, KNIGHT & POLLOCK, CHARTERED
Proof of Service
I, the undersigned, on oath, state that I have served on the date of November 13, 2007, the
attached
"Friends of Greater Yorkville's Petition to Intervene",
by U.S. Mail, upon the
following persons:
Derke J. Price
Ancel, Glink, Diamond, Bush & Krafthefer,
140 South Dearborn Street, 6th Floor
Chicago, Illinois 60603
T: (312) 782.7606
F: (312) 783-0943
Charles Helsten
Hinshaw & Culbertson
100 Park Avenue
P.O. Box 1389
Rockford, Illinois 61105.1389
T: (815) 963-8488
-F: (815) 963-9989
Jeffrey D. Jeep, Esq.
Jeep & Blazer, LLC.
24 North Hillside Ave., Ste. A
Hillside, IL 60162
United City of Yorkville
Leo P. Dombrowski
Anthony G. Hopp
Thomas I. Matyas
Wildman, Harrold, Allen & Dixon
225 West Wacker Drive, Ste. 3000
Chicago, Illinois 60606.1229
T: (312) 201-2000
F: (312) 201-2555
James Harvey
Buck, Hutchison & Ruttle
2455 Glenwood Avenue
Joliet, Illinois 60435
T: (815) 729.4800
Fox Moraine, LLC.
George Mueller
Mueller Anderson, P.C.
609 Etna Road
Ottawa, Illinois 61350
T: (815) 431-1500
F: (815) 431-1501
Ms. Valierie Burd, Mayor
Michael Roth, Interim City Attorney
City of Yorkville
800 Game Farm Road
Yorkville, Illinois 60560
Eric Weis
Kendall County State's Attorney
Kendall County Courthouse
807 John Street
Yorkville, Illinois 60560
T: (630) 553-4157
F: (630) 553-4204
trieary
Public
Subscribed and sworn to before me this
1 day of November 2007,
/-••■
OFFICIAL SEAL
HEATHER
Y
PUBLIC -STATE
PA
STILES
OF ILLINOIS
OMMISSJQN EXPIRESO7/21t10