BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
FOX MORAINE, LLC,
Petitioner,
v.
UNITED
CITY OF YORKVILLE,
CITY
COUNCIL,
Respondent.
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PCB No. PCB 07-146
NOTICE OF FlLING
TO:
All counsel of Record (see attached Service List)
Please take notice that on October
7, 2008, the undersigned filed with the lllinois
Pollution Control Board, 100 West Randolph Street, Chicago, Illinois 60601, Fox Moraine's
Reply to Yorkville'sResponse to Motion to Compel Disclosure
of the Roth Memorandum.
Dated:
October 7, 2008
George Mueller
MUELLER ANDERSON, P.C.
609 East Etna Road
Ottawa, IL 61350
Telephone (815) 431-1500
Facsimile (815) 815-1501
Gmueller2 I @sbcgloba1.net
Respectfully submitted,
On
behalf of FOX MORAINE, LLC
lsi
George Mueller
George Mueller
One
of Its Attorneys
This document utilized 100% recycled paper products.
70S3S423vl 863858 62168
Electronic Filing - Received, Clerk's Office, Octoaber 7, 2008
BEFORE THE
ILLINOIS POLLUTION CONTROL BOARD
FOX MORAINE, LLC
Petitioner,
v.
UNITED CITY OF YORKVILLE,
CITY COUNCIL
Respondent.
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PCB
07-146
FOX MORAINE'S REPLY TO YORKVILLE'S RESPONSE
TO MOTION TO COMPEL DISCLOSURE OF THE ROTH MEMORANDUM
NOW COMES
Fox Moraine, LLC ("Fox Moraine") by its attorneys, Charles
Helsten and George Mueller, and for its reply to Yorkville's Response to its Motion
Compel Production
of the Roth Memorandum states as follows:
1.
Yorkville's response incorrectly characterizes the Roth Memorandum
("Roth memorandum" is actually a misnomer, since other attorney's in Roth's' firm were
the principal contributors to the document) as privileged "legal advice" tendered
in
response to the city council's request for the same. This contention is both factually and
legally incorrect.
2.
The minutes of the Yorkville city council meeting of May
8,2007,
the night
the new mayor (landfill opponent Valerie Burd) and new
city
council were first sworn in,
indicate that Michael Roth and his firm (the Wildman firm) were retained as interim City
attorney pursuant to a proposal (a copy
of which also has never been made available to
Fox Moraine) for a maximum
of 50 h0urs per month of legal services at a fixed fee. The
minutes do not reflect any request for specific services, or any direction to perform
specific services. Certainly no advice was requested regarding the pending landfill
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application, which would be expected, since the city council had another attorney, Derke
Price, who had attended the public hearings and was
at that time preparing a report
summarizing the evidence and containing his recommendations. Interestingly, although
the May 8, 2007 minutes reference Mayor Surd's representation that the city council
had information in front
of them regarding the proposed appointment of an interim city
attorney, the packet
of information for that meeting as published on the City's website
shows no such information. Accordingly, there is no evidence that the "advice"
allegedly provided in the Roth Memorandum
or any specific other "advice" related to the
merits
of the landfill application was ever requested by the city council.
3.
The fact that Fox Moraine may have
or should have known of the
existence
of the Roth Memorandum for some period of time (a fact not established, but
merely now asserted by Yorkville) is
of no relevance to whether this memorandum
ought
to be produced. The importance of the document has emerged as it became
clear that city council members were considering recommendations and materials which
were not part
of the public record in making their decision on Fox Moraine's siting
application. Fox Moraine is entitled to know as a matter
of law what materials were
relied upon by city council members
in reaching their decision. This is not probing into
the minds
of the decision makers, but, rather merely determining whether or not the
council's decision was based upon the record made in this proceeding (as is required by
law). Yorkville's attorneys' (the Wildman firm) direction to its Aldermen not to answer
questions as
to what they considered in reaching their decision only compounds the
problem.
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4.
Yorkville also incorrectly claims that the Roth Memorandum consisted
merely of legal advice. A careful review of the Wildman, Harrold, Allen & Dixon invoice
of June 15, 2007, in the amount of $96,119.73 demonstrates that this claim is untrue,
and that the Roth memorandum, prepared after dozens, if not hundreds
of hours of
review of the hearing evidence by the Wildman attorneys, in fact contained a lengthy
analysis of the evidence presented at the sitting hearing.
In other words, the
Memorandum essentially dealt with the hearing evidence rather than with law. This
is
made clear by the fact that on April 29, 2007, more than a week before he was even
retained
or authorized to perform any work, Leo Dombrowski of the Wildman firm, billed
3.50 hours for, among other tasks: "Prepare memorandum regarding review of
evidence ..." On May 11, 2007, Anthony Hoppbilled 6.0 hours for: "Continue to review
testimony and to work on "need" section." On May 14, 2007, Leo Dombrowski billed
5.25 hours for: "Review and analyze Applicant's traffic studies; review and analyze case
law to determine whether Applicant met traffic criterion; begin
to prepare report
regarding same.
n
On May 18, 2007, Leo Dombrowski of the Wildman firm billed 6.75
hours for, among other things: "Review and analyze post hearing comments; review city
council memorandum regarding traffic criterion..." On May 21, 2007, Leo Dombrowski
of the Wildman firm billed 8.25 hours for, among other things: "Prepare memoranda
regarding issues to consider to determine whether Applicant met traffic and health,
safety and welfare criteria; continued to review and analyze hearing testimony and
exhibits regarding same; review and analyze memorandum of Mr. Price and city staff
addressing siting criteria." On the same day, Michael Roth of the Wildman firm also
billed 2.70 hours for:
'Work on proposed advice memos regarding landfill siting criteria
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and review staff report regarding same." On May 22, 2007, Anthony Hopp also billed
7.0 hours for: "Continue to revise, edit
and finalize legal memoranda to mayor and city
council. .."
On the same date, Leo Dombrowski also billed 7.0 hours for, among other
tasks:
"Revise memorandum regarding Applicant's and operator's environmental
history."
On May 23, 2007, Anthony Hopp billed 6.0 hours for, among other tasks for:
"Complete memorandum and executive summary for city council." On the same day,
Leo Dombrowski billed 10.50 hours for among other tasks: "Review and analyze
hearing officer's findings and recommendations; prepare draft city council resolution;
revise memoranda regarding evaluation
of siting criteria evidence " On the same day,
Michael Roth also billed 8.80 hours for, among other things: " work
on introductory
statement for meeting executive summary
and final version of legal memorandum
analyzing evidence and findings and recommendations ..." (emphasis added)
5.
From the foregoing it is clear that the Roth Memorandum contained a
complete and exhaustive review
of the evidence, recommendations to the city council
regarding the same and, very likely also, comment
and rebuttal with respect to the
expert city staff's factual findings and recommendations and the hearing officer's factual
findings
and recommendations, both of which recommended approval of the siting
application
with conditions.
6.
Since the evidence in this case was overwhelmingly in favor of Fox
Moraine and little, if any, credible evidence was presented by the opponents on any of
the siting criteria, with absolutely
no evidence whatsoever presented in opposition to
criteria
i, v and ix (all of which were found not to have been met in the resolution
prepared by the Wildman attorneys some time after the May 24,2007 city council vote),
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and, since the city council apparently completely disregarded this absence of opposition
evidence,
and since the city council also completely disregarded the recommendations
of its
own expert staff and the hearing officer for approval of the application, it is
arguable that the city council may have improperly proxied Mayor Surd and her
unauthorized agents, the Wildman firm,
to make the final decision for them.
7.
Work on the Roth Memorandum, based upon the June 15,2007 Wildman
invoice, apparently began
on April 29, 2007. Michael Roth and his firm were not even
retained until May 8, 2007 and then only for the limited purpose of providing 50 hours
per month
of work at a fixed fee. Instead, the Wildman firm did 257.45 hours of work for
the month
in which they were appointed, with a significant portion performed before the
appointment even became effective. Valerie
Surd has testified at her discovery
deposition that she did not authorize the Wildman firm
to begin work prior to its
appointment, and that she was unaware that they were performing such work (despite
the fact that the Wildman invoice references a meeting between Anthony Hopp
and
"mayor" on April 30, 2007). On that date, Art Prochaska was still mayor and he was not
the individual that met with
Mr. Hopp. All of this makes it clear that Yorkville's assertion
now that the
Roth Memorandum was prepared in response to the city council's request
for legal advice
is not supported anywhere in the record. The document was either
prepared at the direction of Valerie
Surd before she had any authority to give such
direction, or the document was prepared
by the Wildman firm without any proper
direction,
in the apparent hope that someone would later politically appreciate its
content
and, in turn, then agree to pay for it. Under either scenario, the document does
not constitute privileged legal advice. Work performed prior
to establishment of an
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attorney client relationship is obviously not sUbject to any attorney client privilege. Fox
Moraine hereby repeats, realleges and incorporates as if fully set forth herein its
previous response to Yorkville's motion in limine seeking to bar evidence and questions
regarding the Wildman invoice in the amount of $96,119.73
8.
Yorkville's assertion that Fox Moraine is not entitled to know what the city
council considered in reaching its decision is patently incorrect, and Yorkville's reliance
for that assertion on City of Rockford vs. County of Winnebago is also grossly
misplaced. Yorkville is apparently correct that city council members do not need to
demonstrate that they have reviewed all the evidence (which is the proposition that its
cited cases stand for), but this does not bear on the fact that an Applicant is entitled to a
decision based on the eVidence, and when a decision is based on something other than
the evidence, it becomes a legislative-type decision, rather than an adjudicatory
decision. Rockford v. Winnebago County Board, PCB 88-107 (Nov. 1988), cited by
Yorkville in its response, is particularly instructive, in that this case was a second appeal
after an earlier remand, based upon the Board's finding that the original siting
proceedings were fundamentally unfair, in that Winnebago County had made a
legislative-type decision. In that earlier case, PCB 87-092 (Nov. 19, 1987), the Board
had found that the unfamiliarity of Winnebago County Board members with the siting
criteria was highly probative of the issue of whether they made a legislative rather than
an adjudicatory decision. The Board also agreed with the City of Rockford's contention
that County Board members lack of familiarity with its committee's recommendations
and their apparent reliance on information not in the public record rendered the hearings
fundamentally unfair, (slip opinion at page 19).
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9.
Lastly, Yorkville filed suit on Oct. 3, 2008 in the Circuit Court of Kendall
County against Fox Moraine, seeking to recover among other things the full amount of
the Wildman invoice
of June 15,2007. (Case 08-L-68) The basis is alleged violation of
the city pollution control facility siting ordinance, which reqUires a siting applicant to
reimburse "expenses incurred by the City in conducting the review of the request for
siting approval." Ord. 2006-117, Sec. 3(C)(13). (Emphasis added). Obviously then, the
question
of whether the work was ever authorized or not aside, Yorkville admits
judicially that the Wildman firms work during April
and May of 2006 was "review" of the
request for siting approval. As such, Fox Moraine
is entitled to discover the report
prepared as a result of that "review". (It
is also noteworthy that in previously attempting
to have the $96,119.73 invoice returned, Yorkville alleged that the same was sent to
Fox Moraine
in error, yet now Yorkville has filed suit to collect the same from Fox
Moraine).
WHEREFORE,
Fox Moraine prays that the Board order a disclosure of the
RothlWildman memorandum/report and all other documents submitted to the city
council
as a result of the Wildman firm's unauthorized review of the site location
request.
Dated: October
7,2008
George Mueller
MUELLER ANDERSON,
p.e.
609 East Etna Road
Ottawa,IL61350
Telephone (815) 431-1500
Facsimile (815) 815-1501
Gmueller21 @sbcglobal.net
7
Respectfully submitted,
On behalf of FOX MORAINE, LLC
/s/ George Mueller
George Mueller
One of Its Attorneys
70577019v2 863858 62168
Electronic Filing - Received, Clerk's Office, Octoaber 7, 2008
AFFIDAVIT OF SERVICE
The undersigned, pursuant to the provisions of Section 1-109 ofthe Illinois Code of Civil
Procedure, hereby under penalty
ofperjury under the laws ofthe United States ofAmerica,
certifies that
on October 7, 2008, she served a copy ofthe foregoing upon:
Via
E-Mail- hallorab@ipcb.state.il.usl
Via E-Mail- dombrowski@wildman.com
Bradley P. Halloran
Leo P. Dombrowski
Hearing Officer
Wildman, Harrold, Allen
&
Dixon
Illinois Pollution Control Board
225 West Wacker Dr.
James
R. Thompson Center
Suite 3000
1000 W. Randolph St., Ste. 11-500
Chicago, IL 60606-1229
Chicago,
IT...
60601
Via
E-Mail- mblazer@enviroatty.com
Via E-Mail- michael.roth@icemiller.com
Michael Blazer
Michael Roth
Jeep & Blazer
Interim City Attorney
24 N. Hillside Avenue, Suite A
800 Game Farm Road
Hillside,
IL
60162
Yorkville, TIlinois 60560
Via
E-Mail- gmueller21@sbcglobal.net
Via
E-Mail- eweis@co.kendal1.ilus
George Mueller
Eric
C.
Weiss
Mueller Anderson, P.C.
Kendall County State'sAttorney
609 Etna Road
Kendall County Courthouse
Ottawa,
IL
61350
807 John Street
Yorkville, IL 60560
HINSHAW
&
CULBERTSON LLP
100 Park Avenue
P.O. Box 1389
Rockford,
TIL 61105-1389
(815) 490-4900
o
7053S408vl 863858 62168
Electronic Filing - Received, Clerk's Office, Octoaber 7, 2008
