BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
FOX MORAINE, LLC
)
)
Petitioner,
)
)
v.
)
)
)
UNITED CITY OF YORKVILLE, CITY )
COUNCIL
)
)
Respondent.
)
PCB No. 07-146
(Pollution Control Facility Siting
Appeal)
NOTICE OF FILING
To:
See Attached Service List
PLEASE TAKE NOTICE that on September 24, 2008, Leo P. Dombrowski, one
of the attorneys for Respondent, United City ofYorkville, filed via electronic filing the
attached
United City of Yorkville'sMotion
in
Limine #1, Motion
in
Limine #2,
Motion
in
Limine #3 and Motion
in
Limine #4 with the Clerk ofthe illinois Pollution
Control Board, a copy
of which is herewith served upon you.
Respectfully submitted,
UNITED CITY OF YORKVILLE
By:
/s/ Leo P. Dombrowski
One
of their Attorneys
Anthony G. Hopp
Thomas
I.
Matyas
Leo P. Dombrowski
WILDMAN, HARROLD, ALLEN
&
DIXON LLP
225 West Wacker Drive, 30th Floor
Chicago, illinois 60606
Phone: (312) 201-2000
Fax: (312) 201-2555
hopp@wildman.com
matyas@wildman.com
dombrowski@wildman.com
Electronic Filing - Received, Clerk's Office, September 24, 2008
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
FOX MORAINE, LLC.
Petitioner,
vs.
UNITED CITY OF YORKVILLE, CITY
COUNCIL
Respondent.
)
)
)
)
)
)
)
)
)
)
PCB No. 07-146
(Pollution Control Facility Siting
Appeal)
YORKVILLE MOTION IN LIMINE
#2
Pursuant to the Hearing Officer'sOrder of September 22,2008 and 35 Ill. Admin. Code §
101.610, Respondent, the United City of Yorkville, City Council ("Yorkville"), by and through
its attorneys, moves the Hearing Officer in limine to exclude from the hearing on this matter the
following information: any and all arguments statements, questions, testimony, or evidence of
any kind from Petitioner Fox Moraine and its counsel and from any other party, that refer to,
directly or indirectly, the decision making processes of the Members of the Yorkville City
Council, including the reasons why they voted the way they did regarding the Fox Moraine
landfill application (the "Application").
In
support of its Motion, Yorkville states as follows:
1.
Yorkville believes that Fox Moraine will seek to question at hearing the Council
Members regarding the reasons why they voted the way they did on the Application and the
underlying bases for those reasons. At depositions, Fox Moraine has asked certain questions
regarding the Council Members' decision-making processes and Yorkville believes that Fox
Moraine intends to raise at hearing the following and similar issues:
• Did Council Members agree or disagree with the findings and recommendations
contained in the reports submitted by Landfill Hearing Officer Larry Clark and to City
Staffby Derke Price.
• How Council Members interpreted the statutory criteria and what kind of evidence Fox
Moraine was required to present to prevail on a particular criterion.
1912842JDOC
Electronic Filing - Received, Clerk's Office, September 24, 2008
•
Did Council Members, for example, interpret the traffic criterion to require no impact on
traffic.
•
Whether Council Members thought the evidence was sufficient to prove or disprove a
particular criterion.
•
The opinions Council Members had regarding the experts who testified at the landfill
hearing.
2.
"The Board has consistently held that decisionmakers are entitled to protection
of
their internal thought processes in their adjudicative roles."
Waste Management of Illinois
v.
County Bd. ofKankakee County,
PCB No. 04-186,2008 Ill. Env. LEXIS 14 at
**
67-8 (Jan. 24,
2008). In that case, Waste Management sought to question Kankakee County Board members
regarding the reasons
why members voted the way they did on a landfill application, including
the reasons why some voted to approve a 2002 application but denied a subsequent application
for the same site submitted in 2003. Affirming the Hearing Officer's pre-hearing decision
precluding Waste Management from questioning the County Board members
on the reasons for
their votes, and relying
on long-standing precedent, the Board held that:
The Board has previously held that the integrity
of the decision making process
requires that the mental processes
of the decisionmakers be safeguarded, and
that a strong showing
of bad faith or improper behavior is required before any
inquiry into the decision making process can
be made.
Public officials,
however, should
be considered to act without bias. The presumption of the
impartiality
of the actions of a public official will be overcome only where it is
shown by clear and convincing evidence that the official has an unalterably
closed mind
in critical matters.
Id.
(citations omitted).
3.
The decision to grant or deny siting approval is an adjudicative-like function.
Southwest Energy Corp.
v.
Pollution Control Bd.,
275 Ill. App. 3d 84, 90-91 (4
th
Dist. 1995) ("a
local siting proceeding more closely resembles an adjudicatory proceeding than a legislative
one");
Land and Lakes Co.
v.
Pollution Control Bd.,
245 Ill. App. 3d 631,638
(3rd
Dist. 1993).
Authorized by statute to render a decision on a siting application, city council members
2
Electronic Filing - Received, Clerk's Office, September 24, 2008
essentially sit as judges do in a court of law. Like judges, their mental processes should be
protected to uphold the sanctity
of the landfill siting process. "Such an examination of a judge
would
be destructive ofjudicial responsibility.. " Just as a judge cannot be subjected to such a
scrutiny, so the integrity
of the administrative process must be equally respected."
DiMaggio v.
Solid Waste Agency ofNorthern Cook County,
PCB 89-138, 1989 Ill. Env. LEXIS 86 at
*
13
(Oct. 27, 1989) (citations omitted);
see also Rochelle Waste Disposal v. City ofRochelle,
PCB
03-218, 2004 Ill. Env. LEXIS 231 at
**
42-43 (April 15, 2004) ("the integrity of the decision
making process requires that the mental processes
of decision-makers be safeguarded, and that a
strong showing
of bad faith or improper behavior is required before any inquiry into the decision
making process can
be made.")
4.
Fox Moraine has no evidence, much less clear and convincing evidence, to
overcome the presumption
of impartiality in this matter. It should not be allowed to question
Yorkville Council Members
on why they voted the way they did, what they thought of the
evidence, how theyinterpreted the statutory criteria, or on any other matter that would invade
their decision making processes.
5.
Questioning regarding a Council Member's deliberative mental processes should
be barred for an additional reason: Section 40.1(a) prohibits the Board from considering "new or
additional evidence in support
of or in opposition to any finding, order, determination or decision
of the appropriate county board or governing body of the municipality." 415 ILCS 5/40. I(a).
Because it is so prohibited
by the Act, the Board may not, for example, "reweigh the evidence or
make new credibility determinations."
McLean County Disposal v. County ofMcLean,
207 TIL .
App. 3d 477, 480 (4
th
Dist. 1991). Asking a Council Member why she voted the way she did
would be seeking new evidence regarding the "determination or decision" of the Yorkville City
1912842 l.DOC
3
Electronic Filing - Received, Clerk's Office, September 24, 2008
Council. Consequently, even if a landfill applicant were allowed at hearing to ask governmental
decision-makers
why they voted as they did, the Board could not consider any such evidence
because it is barred
by statute from doing so.
WHEREFORE, Respondent, UNITED CITY OF YORKVILLE, CITY COUNCIL
requests that the Hearing Officer enter
an
order barring any and all arguments statements,
questions, testimony,
or evidence of any kind regarding the Council Members' decision making
processes as discussed in this motion.
UNITED CITY OF YORKVILLE, CITY COUNCIL
By:
/s/ Leo P. Dombrowski
One
of Its Attorneys
Dated: September 24, 2008
Anthony
G. Hopp
Thomas I. Matyas
Leo P. Dombrowski
WILDMAN, HARROLD, ALLEN
&
DIXON LLP
225 West Wacker Drive, 30th Floor
Chicago, Illinois 60606
Phone: (312) 201-2000
Fax: (312) 201-2555
hopp@wildman.com
matyas@wildman.com
dombrowski@wildman.com
4
Electronic Filing - Received, Clerk's Office, September 24, 2008
CERTIFICATE OF SERVICE
I, Susan Hardt, a non-attorney, certify that I caused a copy ofthe foregoing Notice
of Filing and United City of Yorkville'sMotion
in
Limine #1, Motion
in
Limine #2,
Motion
in
Limine #3 and Motion
in
Limine #4 to be served upon the Hearing Officer
and all Counsel
of Record listed on the attached Service list by sending it via Electronic
Mail
on September 24, 2008.
lsi
Susan Hardt
[x]
Under penalties as provided by law pursuant to ILL. REV. STAT.
CHAP. 110 - SEC 1-109, I certify that the statements set forth
herein are true and correct.
Electronic Filing - Received, Clerk's Office, September 24, 2008
SERVICE LIST
Bradley P. Halloran
Hearing Officer
lllinois Pollution Control Board
James
R. Thompson Center, Suite 11-500
100 W. Randolph Street
Chicago, lllinois 60601
hallorab@ipcb.state.il.us
George Mueller
Mueller Anderson, P.C.
609 Etna Road
Ottawa, lllinois 61350
george@muelleranderson.com
Charles Helston
Hinshaw
&
Culbertson, LLP
100 Park Avenue
P.O. Box 1389
Rockford, lllinois 61105-1389
chelsten@hinshawlaw.com
Michael
S. Blazer
Jeep
&
Blazer, LLC
24 N. Hillside Avenue, Suite A
Hillside, IL 60162
mblazer@enviroatty.com
Eric
C. Weiss
Kendall County State'sAttorney
Kendall County Courthouse
807 John Street
Yorkville, lllinois. 60560
eweis@co.kendall.il.us
James.
H. Kippen, II
Walsh, Knippen, Knight
&
Pollack, Chartered
601 W. Liberty Dr.
Wheaton, IL 60187-4940
jim@wkkplaw.com
James.
B.
Harvey
McKeown, Fitzgerald, Zollner,
Buck, Hutchison,
&
Ruttle
2455 Glenwood Avenue
Joliet, lllinois 60435
jim@mckeownlawfirrn.com
Electronic Filing - Received, Clerk's Office, September 24, 2008
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
FOX MORAINE, LLC
)
)
Petitioner,
)
)
v.
)
)
)
UNITED CITY OF YORKVILLE, CITY )
COUNCIL
)
)
Respondent.
)
PCB No. 07-146
(Pollution Control Facility Siting
Appeal)
NOTICE OF FILING
To:
See Attached Service List
PLEASE TAKE NOTICE that on September
24,2008, Leo P. Dombrowski, one
of the attorneys for Respondent, United City ofYorkYille, filed via electronic filing the
attached
United City of Yorkville'sMotion
in
Limine #1, Motion
in
Limine #2,
Motion
in
Limine #3 and Motion
in
Limine #4 with the Clerk of the lllinois Pollution
Control Board, a copy
ofwhich is herewith served upon you.
Respectfully submitted,
UNITED CITY OF YORKVILLE
By:
lsi
Leo P. Dombrowski
One
of their Attorneys
Anthony
G. Hopp
Thomas
1. Matyas
Leo
P. Dombrowski
WILDMAN, HARROLD, ALLEN
&
DIXON LLP
225 West Wacker Drive, 30th Floor
Chicago, lllinois 60606
Phone: (312) 201-2000
Fax: (312) 201-2555
hopp@wildman.com
matyas@wildmail.com
dombrowski@wildman.com
Electronic Filing - Received, Clerk's Office, September 24, 2008
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
FOX MORAINE, LLC.
Petitioner,
vs.
UNITED CITY OF YORKVILLE, CITY
COUNCIL
Respondent.
)
)
)
)
)
)
)
)
)
)
PCB No. 07-146
(Pollution Control Facility Siting
Appeal)
YORKVILLE MOTION IN LIMINE
#3
Pursuant to the Hearing Officer'sOrder of September 22,2008 and 35 Ill. Admin. Code §
101.610, Respondent, the United City of Yorkville, City Council ("Yorkville"), by and through
its.attorneys, moves the Hearing Officer in limine to exclude from the hearing on this matter the
following information: any and all arguments statements, questions, testimony, or evidence
of
any kind from Petitioner Fox Moraine and its counsel and from any other party, that refer to,
directly or indirectly, any statements, whether oral or Written, made by Yorkville City Council
Members during their election campaigns leading up to the April 17, 2007 elections regarding
the proposed Fox Moraine landfill (the "Landfill"). In support
of its Motion, Yorkville states as
follows:
1.
Yorkville believes that Fox Moraine will seek to question at hearing the Mayor
and Council Members regarding statements they may have made regarding the Landfill during
their election campaigns. For example, Fox Moraine has questioned the Mayor and Council
Members at depositions regarding statements that appeared in the April 15, 2007 BeaconNews.
In that article, the reporter noted that City Council candidates had generally "withheld airing
their views"
on the Landfill. Some candidates were then asked: "Would a safe, state-compliant
landfill be a positive, negative, or neutral addition to Yorkville?" Mayor Burd was quoted as
Electronic Filing - Received, Clerk's Office, September 24, 2008
saying: "Is there such a thing as a safe, state-compliant landfill? . .. I don't know if that's an
oxymoron." Council Member Spears was quoted as saying: "If it had nothing surrounding it for
acres, and if it was proven to be safe as far as leakage, and if it would have no impact on traffic,
that would be a perfect scenario." Other Members were also quoted. (A copy of the April 15,
2007 article is attached as Exhibit A.)
2.
Yorkville believes that Fox Moraine will attempt to question the Council
Members regarding these statements and argue that the statements show the Members were
biased. However, as a matter of law, any statement made by the Council Members during their
election campaigns regarding their positions on the Landfill are inadmissible, as such statements
made in the context of a campaign for public office are not relevant to the issues involved in this
appeal.
3.
First, any public statements made by Council Members during their election
campaigns regarding the Landfill were in keeping with the landfill siting provisions of the
Illinois Environmental Protection Act (the "Act").
In
fact, Section 39.2(d) of the Act expressly
allows such statements: "The fact that a member of the county board or governing body of the
municipality has publicly expressed an opinion on an issue related to a site review proceeding
shall not preclude the member from taking part in the proceeding and voting on the issue." 415
ILCS 5/39.2(d) (emphasis added). Section 39.2(d) clearly provides that the Council Members
were free to make public statements concerning landfills in general and the Fox Moraine Landfill
in particular. Because Section 39.2(d) specifically allows candidates to express their opinions
related to landfill site review proceedings, any such statements made by the Council Members
are not relevant and should not be admitted into evidence at the hearing or considered by the
Board.
2
Electronic Filing - Received, Clerk's Office, September 24, 2008
4.
Second, the Hearing Officer and the Board should refuse to admit or consider the
above-referenced statements because the Council Members had an absolute right to make them.
See U.S. Const., Amend. I;
see also
5 U.S.C. § 7323(c) (expressly allowing even employees of
the federal government to express opinions on political subjects). Under the First Amendment,
the Council Members had a right, as candidates for public office, to express their opinions on all
pertinent political subjects. When they were asked about the Landfill, they had every right, and
arguably even a responsibility, to respond to those questions.
1
Consequently, the Hearing
Officer and Board should find that the Council Members, as candidates for political office, had a
right to express their political views without fear of formal interrogation.
5.
Third, the statements made by the Council Members cannot be used to establish
that the proceeding was fundamentally unfair because the fact that Council Members made
statements regarding the Landfill during their election campaigns does not overcome the
presumption that, as administrative officials, they were objective in judging the siting
application.
See, e.g., Waste Management ofIllinois
v.
Pollution Control Ed,
175
Ill.
App. 3d
1023, 1040 (2
nd
Dist. 1988) ("There is a presumption that administrative officials are objective
and capable of fairly judging a particular controversy. Moreover, the fact that an administrative
official has taken a public position or expressed strong views on an issue before the
administrative agency does not overcome the presumption.,,)2
I
By filing this motion, Yorkville does not concede that the Council Members were properly or accurately
quoted
in the April 15,2007 article or in any other article that appeared in the press.
2
This motion is similar to one filed by the Kankakee County Board in
Waste Management
v.
County
Board
ofKankakee County,
PCB 04-186. There, making similar arguments as Yorkville does here, the
County Board moved
in limine
to bar any testimony regarding statements made by a Board member
during het election campaign in which she said in a questionnaire and in campaign materials that she was
"opposed to proposed landfills being 'sited in Kankakee County." (County Board'sMotion in Limine,
filed April 4, 2005, at pp. 1-2.) The Hearing Officer granted the motion, allowing Waste Management to
elicit such statements in an offer
of proofat the hearing. The County Board was represented by Charles
Helsten and Richard Porter, who represent Fox Moraine in this appeal.
3
Electronic Filing - Received, Clerk's Office, September 24, 2008
WHEREFORE. Respondent, UNITED CITY OF YORKVILLE, CITY COUNCIL
requests that the Hearing Officer enter an order barring any and all arguments statements,
questions, testimony,
or evidence of any kind regarding statements made by the City Council
Members regarding the Landfill during their election campaigns as discussed
in this motion.
UNITED CITY OF YORKVILLE, CITY COUNCIL
By:
/s/ Leo P. Dombrowski
One
of their Attorneys
Dated: September 24, 2008
Anthony G. Hopp .
Thomas
I.
Matyas
Leo P. Dombrowski
WILDMAN, HARROLD, ALLEN
&
DIXON LLP
225 West Wacker Drive, 30th Floor
Chicago, Illinois 60606
Phone: (312) 201-2000
Fax: (312) 201-2555
hopp@wildman.com
matyas@wildman.com
dombrowski@wildman.com
1912769_2.DOC
4
Electronic Filing - Received, Clerk's Office, September 24, 2008
EXHIBIT A
Electronic Filing - Received, Clerk's Office, September 24, 2008
•
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.
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.
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THE VOICE OF THE FOX
~ALLEV
SiNCE 1846 • WWW.BEACONNEWSONlINE.COM • AURORA, ILLINOIS
...
'-8
The
SundllY ..
FINAL EDITION DA
eacon
Yorkville candidates weigh
in.
on
~
~
f
-
AnI.n
'JOI'
J
...
Placlllr
IfJeW; "I don't think
'itiereIs
any
such
trilna
Is
a
sa~;
slal8-compiiant
landfill:
BaQ!igiound: The
Ward 2,candidate
Is backing Burd
'and once worked
witli elllzeriS to
'fight
\ii.landfiIL
WIIIlI'r'w.illtrlc'
Jari.,; MoElray
Vlew:'j
do~1lhlnk.
VIew: AlandlJH
ihat (.
land"n) Is
would be
a
a
good
t.1I1rlli lor
"negally," and
l~e
YorkvUlil,"
YorkvlUe proposal
Bacl<ground:
The
ialses specific'
Waid 1candJdale
eoticilrils..
Is backing
Bacl<ground: The
Burd iWd once .
Ward 2Caildldate '
bekx\glid 10..
sUIlP9l'ted
group
~RPQsed
to
an"~IIiQ
Illssite'
the landfill.
an\l.~~,no
ei\<lorsemenlS
In
lhe"inayOfal face.
Clrla Colaslma.
'view;
"A state-
compHantlandfm,
if
~
ara required.
10 sile
ii,
Would
have
both poslllve
and
negative
efleets:
Background:
Ward 1candidate
supp,orted
annexing
the
sIte
andmadelio
endOl3amehts In
the mayoral race.
P.ulJlmtl
Vlew: There
are
.prosand cons"
10
the
landilll
proposal.
Background: The
seven-yeatward'
1alderman
voted
10 ahoax the sije
and.ls
backIng
Prochaska.
Villii'llBurtl
VIew:
.Is
there
such a
thing
as '
asale. s1a1a-
compliant
landllll? ... 1don't
know Iflf1al's an
oxymoron:
Background:
Tha nine-year
alderman, who Is
runnfilg for mayor,
voted agalnst
anneXing the
landfill site,
Arl Prachal.kl
View: Thelwo-
lann mayor
win
not
commant on ,
the relatlva merils
ola Yorkville
landfill
Background:
Prochaska.
who Is running
lor re-election,
spearhaded
Ilrlnglnglhe
landfill site
within
• tltyllmlls.
YOfkvIns's mayor and
the aldermen elected
TuesdaywlD
decIde
next
month wheltier aplan
10
site alandfill in lheclly
meels stale standards.
Heeding
lawyers'
cautions, most
City
Council candidates have
withheld atrlng their views
on the proposal- until
now. At right, each
candldale's response to
thIs election's
hottest .
question: Would asafe.
stale-comp!ianl~iIIlIlll.1I
be
all.osit1ve, negaUVQ or
neutral addition to
YorkVIlle?
Electronic Filing - Received, Clerk's Office, September 24, 2008
lllDAn
WUIlIIR
It
JUUAIU llIAZ
BARDWElL SCIIOOL
AURORA
HIGH 53, LOW 30
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SUNDAY, APRIL 15, 2007
$1.50
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LAiDf.lLL ANNEXATION
Were.the
YorkVille
Ci~
Council's
moves defensive or offensive?
,
Ne'ws,AS .
ItLtiS~TIO~
BYJEFF:FROSCH/STAFF ARTIST
ROIIAnllS,nrt
Tou,lerry
View:
'1111
View:
A
safe,
had nothing
. . state-compllanl
surrou~dlno
klor
landUIi would be a
acres. and 1I
has
"neutral" addUlon
proven 10 be
sale
as
lo.t!l&oll~,~
far
if it
as
would
leallagl,
Ila'lll
end
no
.'
·a~ro!llld.:
Ward
4candldale
me .
impaclon
traffic,
•
supp:otled
ll1al
would
be a
anne~lilg
Ihe slie.
perlee! sceoarlo:'
He lias mada no
Bactgro,und: Nrne-
endorselllents
for
year
alderman
m~.
voIBd allUnal
anneJilnll SIte and Is
backlng Bl/Ill.
Rob", S.tllllfl
View: "Il would be
a
negative addition
to the
city.
Ihave
no quesllon aboul
that"
Background:
The
Ward 3candidate
opposed annexing
the site and is
llackfng Burd.
J.rit.. Bo.1l
View: Bock did
nol return calls .
lorcommenl.
Background:
The
Ward 3alderman
voted 10 ann8Jl
Iheslle.
touchy trash issue..
WIIlII"
11l1.dowllIt
Vlaw: "\ don'ihlnk
(8 landfill) should
have even been
brought up."
.B2tkground:
The Ward 2
can(lidale made no
comment on tile
annexaUon amI no
endorsements.
Electronic Filing - Received, Clerk's Office, September 24, 2008
CERTIFICATE OF SERVICE
I, Susan Hardt, a non-attorney, certify that I caused a copy of the foregoing Notice
of Filing and United City of Yorkville'sMotion in Limine #1, Motion in Limine #2,
Motion
in Limine #3 and Motion in Limine #4 to be served upon the Hearing Officer
and all Counsel
ofRecord listed on the attached Service list by sending it via Electronic
Mail on September 24, 2008.
lsi
Susan Hardt
[x]
Under penalties as provided by law pursuant to ILL. REV. STAT.
CHAP. 110 - SEC 1
~
109, I certify that the statements set forth
herein are true and correct.
Electronic Filing - Received, Clerk's Office, September 24, 2008
SERVICE LIST
Bradley P. Halloran
Hearing Officer
Illinois Pollution Control Board
James
R. Thompson Center, Suite 11-500
100 W. Randolph Street
Chicago, Illinois 60601
hallorab@ipcb.state.il.us
George Mueller
Mueller Anderson, P.C.
609 Etna Road
Ottawa, Illinois 61350
george@muelleranderson.com
Charles Helston
Hinshaw
&
Culbertson, LLP
100 Park Avenue
P.O. Box 1389
Rockford, Illinois 61105-1389
chelsten@hinshawlaw.com
Michael
S. Blazer
Jeep
&
Blazer, LLC
24 N. Hillside Avenue, Suite A
Hillside, IL 60162
mblazer@enviroatty.com
Eric
C. Weiss
Kendall County State'sAttorney
Kendall County Courthouse
807 John Street
Yorkville, Illinois 60560
eweis@co.kendall.il.us
James. H. Kippen, II
Walsh, Knippen, Knight
&
Pollack, Chartered
601 W. Liberty Dr.
Wheaton,IL 60187-4940
jim@wkkplaw.com
James. B. Harvey
McKeown, Fitzgerald, Zollner,
Buck, Hutchison,
&
Ruttle
2455 Glenwood Avenue
Joliet, Illinois 60435
jim@mckeownlawfirm.com
Electronic Filing - Received, Clerk's Office, September 24, 2008
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
FOX MORAINE, LLC
)
)
Petitioner,
)
)
v.
)
)
)
UNITED CITY OF YORKVILLE, CITY )
COUNCIL
)
)
Respondent.
)
PCB No. 07-146
(pollution Control Facility Siting
Appeal)
NOTICE OF FILING
To:
See Attached Service List
PLEASE TAKE NOTICE that on September 24, 2008, Leo P. Dombrowski, one
of the attorneys for Respondent, United City ofYorkville, filed via electronic filing the
attached
United City of Yorkville'sMotion
in
Limine #1, Motion
in
Limine #2,
Motion
in
Limine #3 and Motion
in
Limine #4 with the Clerk of the Illinois Pollution
Control Board, a copy
of which is herewith served upon you.
Respectfully submitted,
UNITED CITY OF YORKVILLE
By:
lsi
Leo P. Dombrowski
One
of their Attorneys
Anthony
G. Hopp
Thomas
1. Matyas
Leo
P. Dombrowski
WILDMAN, HARROLD, ALLEN
&
DIXON LLP
225 West
Wacker Drive, 30th Floor
Chicago, Illinois 60606
Phone: (312) 201-2000
Fax: (312) 201-2555
hopp@wildman.com
matyas@wildman.com
dombrowski@wildman.com
Electronic Filing - Received, Clerk's Office, September 24, 2008
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
FOX MORAINE, LLC
)
)
Petitioner,
)
)
v.
)
)
)
UNITED CITY OF YORKVILLE, CITY )
COUNCIL
)
)
Respondent.
)
PCB No. 07-146
(Pollution Control Facility Siting
Appeal)
YORKVILLE MOTION IN LIMINE #4
Pursuant to the Hearing Officer'sOrder of September 22, 2008 and 35 Ill. Admin.
Code § 101.610, Respondent, the United City
of Yorkville, City Council ("Yorkville"),
by and through its attorneys, moves the Hearing Officer in limine to exclude from the
hearing
on this matter the following information: any and all arguments statements,
questions, testimony,
or evidence of any kind from Petitioner Fox Moraine and its
counsel and from any other party, that refer to, directly
or indirectly, the invoice of
Wildman Harrold that was inadvertently produced in this appeal. In support of its
Motion, Yorkville states as follows:
1.
The document at issue, an invoice ofthe law firm ofWildman Harrold for
legal services rendered to Yorkville, is not relevant to any issue
in this appeal. Yorkville
incorporates
by references the arguments made in support of its Motion to Compel
Return
of Document Inadvertently Disclosed, which was filed with the Board on or
around November 8, 2007.
2.
Additionally, "relevant evidence" is defined as something that has
"any
tendency to make the existence of any fact that is of consequence to the determination of
Electronic Filing - Received, Clerk's Office, September 24, 2008
the action more or less probable than it would be without the evidence."
Wojcik
v.
City of
Chicago,
299
Ill.
App. 3d 964, 971
(1
st Dist. 1998) (emphasis added).
WHEREFORE, Respondent, UNITED CITY OF YORKVILLE, CITY
COUNCIL requests that the Hearing Officer enter an order barring any use of or
reference to the invoice of Wildman Harrold as discussed in this motion.
UNITED CITY OF YORKVILLE, CITY COUNCIL
By:
lsi
Leo P. Dombrowski
One
of Its Attorneys
Dated: September 24, 2008
Anthony
G. Hopp
Thomas
1.
Matyas
Leo P. Dombrowski
WILDMAN, HARROLD, ALLEN
&
DIXON LLP
225 West Wacker Drive, 30th Floor
Chicago, Illinois 60606
Phone: (312) 201-2000
Fax: (312) 201-2555
hopp@wildman.com
matyas@wildman.com
dombrowski@wildman.com
-2-
Electronic Filing - Received, Clerk's Office, September 24, 2008
CERTIFICATE OF SERVICE
I, Susan Hardt, a non-attorney, certify that I caused a copy ofthe foregoing Notice
of Filing and United City of Yorkville'sMotion in Limine #1, Motion in Limine #2,
Motion
in Limine #3 and Motion in Limine #4 to be served upon the Hearing Officer
and all Counsel
of Record listed on the attached Service list by sending it via Electronic
Mail on September 24, 2008.
/s/ Susan Hardt
[x]
Under penalties as provided by law pursuant to ILL. REV. STAT.
CHAP. 110 - SEC 1-109, I certify that the statements set forth
herein are true and correct.
Electronic Filing - Received, Clerk's Office, September 24, 2008
SERVICE LIST
Bradley P. Halloran
Hearing Officer
Illinois Pollution Control Board
James
R.
Thompson Center, Suite 11-500
100 W. Randolph Street
Chicago, Illinois 60601
hallorab@ipcb.state.il.us
George Mueller
Mueller Anderson, P.C.
609 Etna Road
Ottawa, Illinois 61350
george@muelleranderson.com
Charles Helston
Hinshaw
&
Culbertson, LLP
100 Park Avenue
P.O. Box 1389
Rockford, Illinois 61105-1389
chelsten@hinshawlaw.com
Michael
S. Blazer
Jeep
&
Blazer, LLC
24 N. Hillside Avenue, Suite A
Hillside, IL 60162
mblazer@enviroatty.com
Eric
C. Weiss
Kendall County State'sAttorney
Kendall County Courthouse
807 John Street
Yorkville, Illinois 60560
eweis@co.kendall.il.us
James. H. Kippen, II
Walsh, Knippen, Knight
&
Pollack, Chartered
601 W. Liberty Dr.
Wheaton, IL 60187-4940
jim@wkkplaw.com
James. B. Harvey
McKeown, Fitzgerald, Zollner,
Buck, Hutchison,
&
Ruttle
2455 Glenwood Avenue
Joliet, Illinois 60435
jim@mckeownlawfirm.com
Electronic Filing - Received, Clerk's Office, September 24, 2008
