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 29,2008, Leo P. Dombrowski, one
ofthe attorneys for Respondent, United City ofYorkville, filed via electronic filing the
attached
United City of Yorkville'sResponse to Fox Moraine's Motion to Compel
Production of Documents and Video, 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
oftheir 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 29, 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 Helsten
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 J. Knippen, II
Walsh, Knippen, Knight
&
Pollock
2150 Manchester Road
Suite 200
Wheaton,IL 60187
jim@wkkplaw.com
heather@wkkplaw.com
James B. Harvey
McKeown, Fitzgerald, Zollner,
Buck, Hutchison
&
Ruttle
24255 Glenwood Avenue
Joliet,IL 60435
jim@mckeownlawfirm.com
Electronic Filing - Received, Clerk's Office, September 29, 2008
BEFORE THE
ILLINOIS POLLUTION CONTROL BOARD
FOX MORAINE, LLC
)
)
Petitioner,
)
)
v.
)
)
UNITED CITY OF YORKVILLE, CITY )
COUNCIL
)
)
Respondent.
)
PCB No. 07-146
YORKVILLE'S RESPONSE TO FOX MORAINE'S
MOTION TO COMPEL PRODUCTION OF
DOCUMENTS AND VIDEO
Respondent, the United
Ci~y
of Yorkville ("Yorkville") responds to Fox Moraine Landfill
LLC's("Fox Moraine") Motion to Compel Production
of Transcripts and Videos as follows:
1.
Fox Moraine's Second Request for Production of Documents was both overly-
broad and needlessly cumbersome. Fox Moraine asked for all videotapes and transcripts
of all .
City Council, Committee, Board or agency meetings between September 1,2006 (three months
before Fox Moraine filed its landfill application) and June
1, 2007 (several days after the
decision on the application). All
of these materials were public records and could have been
obtained through a Freedom
of Information Request. Fox Moraine refused to submit a Freedom
of Information Request, however, and instead demanded that Yorkville produce the requested
materials through counsel..
2.
In response to Fox Moraine's Second Requests for Production, Yorkville
produced over six thousand three hundred pages
of documents and ninety video disks containing
hundreds
of hours of footage. Yorkville has fully complied with Fox Moraine's Second Request.
Electronic Filing - Received, Clerk's Office, September 29, 2008
No responsIve materials have been withheld. (See COpIes of Yorkville's transmittal letters,
attached as Exhibits A and B)
3.
Fox Moraine's Motion to Compel focuses on a tiny percentage of the information
it requested and essentially complains about three things:
(a) Some portions of some meetings were not transcribed, and some of the
transcripts Fox Moraine received were not what it expected.
(b) Two videos are not available.
(c)
An
invoice allegedly indicates that a transcript was prepared but was not
produced.
Individually, none of these issues is terribly significant. Taken together, they amount to little
more than nit-picking. None has any merit.
4.
Only the public meeting portions of each City Council or Committee meeting is
attended by a court reporter. The reporter prepares transcripts for those public sessions. The
remaining portions of the meetings are not public, and minutes of those portions of the meetings
are prepared, but not transcripts. For example, Exhibit H to Fox Moraine's motion contains the
minutes from a City Council meeting on February 13, 2007. The minutes clearly state that the
public hearing portion of the meeting covered only a re-zoning application from Rush-Copley
Hospital. Yorkville produced the transcript for this portion of the meeting bearing Bates number
UCYFM 005278-5308.
An
unnumbered copy of that transcript is also attached to Fox Moraine's
motion.
I
5.
Fox Moraine's Second Request for Production sought transcripts and videos, not
meeting minutes: Because Fox Moraine did not request minutes, Yorkville did not produce
1 Fox Moraine's motion attaches copies of transcripts that do not bear the Bates numbers Yorkville gave them when
Yorkville produced them. Clearly, Fox Moraine has a source for these transcripts other than Yorkville.
If the
transcripts Fox Moraine seeks
existep, Fox Moraine should have been able to get them through this second source.
2
Electronic Filing - Received, Clerk's Office, September 29, 2008
them. All minutes, agendas and meeting packets for Yorkville City government meetings are
available on the City'swebsite, however, at www.yorkville.il.us.gov-mtgs-minutes.cfm.
6.
The minutes in Fox Moraine's possession (and posted on the City's website)
clearly explain which portions
of the meetings were transcribed by a court reporter and which
were not. The minutes even provide the court reporter's name. On information and belief, Fox
Moraine has contacted the court reporter
to ask for the transcripts Fox Moraine believes are
missing. Yorkville has produced all
of the existing transcripts. Nothing has been withheld.
7.
While Yorkville videotapes many, many meetings, it does not videotape all of
them. Two of the videos Fox Moraine requested do not exist, and to the best of Yorkville's
knowledge have never existed. (See the Affidavit
of Bart Olson, attached as Exhibit C.)
It
is not
clear why the videos were not made, but it is clear that Yorkville has not withheld any existing
videotapes.
8.
Finally, Fox Moraine complains that it was billed for court reporting services, but
did not receive transcripts for some sessions. Fox Moraine is mistaken. The invoices
of which
Fox Moraine complain are from Marlys Young. Marlys Young is a stenographer, not a court
reporter. She prepares minutes, not transcripts. (Olson Aff., at
~
4.)
9.
None of Fox Moraine's complaints, therefore, is legitimate. Each of the issues
addressed in Fox Moraine's motion could have easily been resolved by a close reading
of the
publicly-available meeting minutes and/or with a telephone call
to Yorkville's counsel.
10.
Viewed in this context, Fox Moraine's accusation that Yorkville's representations
regarding these materials were "wrongful and ingenuous [sic]" is as disturbing
as it is
ungrammatical.
Fox Moraine demands sanctions based on nothing more than its own
misunderstanding, and failure
to follow up.
3
Electronic Filing - Received, Clerk's Office, September 29, 2008
11.
Of course, Fox Moraine's demand for sanctions should be strenuously denied by
the Hearing Officer, but further Yorkville requests that the Hearing Officer admonish Fox
Moraine that additional baseless sanctions motions will not be tolerated.
WHEREFORE, the United City
of Yorkville hereby requests that Fox Moraine's Motion
to Compel and for Sanctions be denied and that Fox Moraine be admonished on the record to
refrain from making further, baseless sanctions motions.
Respectfully submitted,
THE UNITED CITY OF YORKVILLE
By:
/s/ Leo P. Dombrowski
One
of its Attorneys
Dated: September 29, 2008
Thomas
I.
Matyas
Anthony
G. Hopp
Leo P. Dombrowski
WILDMAN, HARROLD, ALLEN & DIXON LLP
225 West Wacker Drive
Chicago, Illinois 60606
Telephone:
(312) 201-2000
Facsimile:
(312) 201-2555
hopp@wildman.com
matyas@wildman.com
dombrowski@wildman.com
4
Electronic Filing - Received, Clerk's Office, September 29, 2008
EXHIBIT A
Electronic Filing - Received, Clerk's Office, September 29, 2008
Wildman, H:
Id, Allen
&
Dixon
LLP
225 West Wack", .. Drive
Chicago, Illinois 60606-1229
312-201-2000
312-201-2555 fax
.
www.wildmanharrold.com
Wildman Harrold
Attorneys
find COIIIl.<dOl:r
Anthony G. Hopp
312-201-2537
hopp@wildman.com
George Mueller, Esq.
Mueller Anderson P.C.
609 Etna Road
Ottawa, IL 61350
July 11, 2008
Re:
Fox Moraine, LLC v. United City of Yorkville
Dear Mr. Mueller:
Further to
my letter of June 6, 2008, and in response to Petitioner's
Second Request to Produce, I enclose herewith a disk containing.transcripts
of
meetings held by the United City of Yorkville between September 1, 2006 and
June
1, 2007. This disk does not include transcripts of any of the landfill siting
hearings, as you already have those, and they are outside the scope
of the
Second Request to Produce. United City of Yorkville has not withheld any
meeting transcripts as privileged. The transcripts on the attached disk bear the
bates range
UCYFMOOOOOI through UCYFM006342.
We continue to have technical difficulty reproducing DVDs of some
meetings.
We hope to have those difficulties worked out next week, and to
produce the DVDs soon.
There is no charge for copying the attached disk. There may be a charge
for copying the DVDs, but I will let you know.
Mr. Blazer has already informed me that
he does not want copies of
these materials.
Very truly yours,
AGH:kma
Enclosure
cc:
Michael
S. Blazer, e/o enc.
Charles Helston, w/o enc.
Electronic Filing - Received, Clerk's Office, September 29, 2008
EXHIBITB
Electronic Filing - Received, Clerk's Office, September 29, 2008
Wild man Harral d
Attorn'J'sfind Coul2selors
Wildman, Ha
.Id, Allen
&
Dixon
LLP
225 West Wacker Drive
Chicago, Illinois 60606-1229
312-201-2000
312-201-2555 fax
www.wildmanharrold.com
Anthony G. Hopp
312-201-2537
hopp@wildman,com
August 14, 2008
VIA OVERNIGHT MAIL
George Mueller, Esq.
Mueller Anderson P.C.
609 Etna Road
Ottawa, IL 61350
Re:
Fox Moraine, LLC v. United City ofYorkville
Dear George:
Enclosed please find copies
of CDs which are responsive to Fox
Moraine'sSecond Request for Production
of Documents to the United City of
Yorkville. There are ninety disks enclosed. Pursuant to Petitioner's Second
Request, these disks contain the available video for meetings which occurred
between September
1, 2006 and June 1, 2007.
Thank you for your patience in this matter. As we have previously
discussed, technical difficulties prevented us from compiling a complete set
of
disks until this week.
By copy of this letter to Mike Blazer, I am confirming his oral
instruction to
me that he does not want a set of these disks.
Very truly yours,
WILDMAN, HARROLD, ALLEN
&
DIXON LLP
--1~
1~1?1
Anthony G. Hopp
AGH:kma
Enclosures
cc:
Michael
S. Blazer
Electronic Filing - Received, Clerk's Office, September 29, 2008
EXHIBITC
Electronic Filing - Received, Clerk's Office, September 29, 2008
BEFORE THE
ILLINOIS POLLUTION CONTROL BOARD
FOX MORAINE, LLC
)
)
Petitioner,
)
)
v.
)
)
UNITED CITY OF YORKVILLE, CITY )
COUNCIL
)
)
Respondent.
)
PCB No. 07-146
AFFIDAVIT OF BARTHOLOMEW OLSON
I,
Bartholomew Olson, hereby depose and state that, if called as a witness in this matter, I
would testify as follows:
1.
I am over 18 years of age, and I am competent to testify to the facts set forth in
this affidavit.
2.
I am employed by the United City of Yorkville ("Yorkville") as the Assistant City
Administrator. I have personal knowledge
ofthe matters set forth herein.
3.
I have access to the books and records of Yorkville including invoices for video
recording services. Yorkville's books and records do not contain invoices for videotaping
services for the September 25, 2006 Plan Commission meeting or the February 13, 2007 City
Council meeting. Invoices for videotaping services for Plan Commission and City Council
meetings are maintained by Yorkville for a period
of seven (7) years. Because the books and
records
of Yorkville do not contain invoices for videotaping the meetings of September 25, 2006
and February 13,2007 are not in the
City's records, it is my conclusion that these meetings were
not videotaped.
Electronic Filing - Received, Clerk's Office, September 29, 2008
4.
I am personally acquainted with Marlys Young, and I have personal knowledge of
the services she performs for Yorkville. Marlys Young types minutes from City Council
meetings. She does not provide court reporting services for the City and. does not prepare
transcripts
of meetings.
FURTHER affiant sayeth not.
BARTHOLOMEW OLSON
SUBSCRIBED
and SWORN
to before me this 29
th
day of
September, 2008.
OFFICIAL SEAl
PAMELA BOLSEM
NOfMYPlaJC.STATE OF lWNOI8
tit
CCIIII88IQH
EXPIRES:11/19111
Notary Public
2
Electronic Filing - Received, Clerk's Office, September 29, 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's Response to Fox Moraine's Motion to
Compel Production
of Documents and Video
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 29,2008.
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 29, 2008
