BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
FOX MORAfNE, LLC
Respondent.
Petitioner,
v.
UNITED CITY
COUNCIL
)
)
)
)
)
)
)
OF YORKVILLE, CITY )
)
)
)
PCB No. 07-146
(Pollution Control Facility Siting
Appeal)
NOTICE OF FILING
To:
See Attached Service List
PLEASE TAKE NOTICE that on October 7, 2008, Leo P. Dombrowski, one of
the attorneys for Respondent, United City of Yorkville, filed via electronic filing the
attached
United City of Yorkville's Reply in Support of Its Motion in Limine
# 2,
with the Clerk of the lllinois 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
I.
Matyas
Leo
P. Dombrowski
WILDMAN, HARROLD, ALLEN
&
DIXON LLP
225 West Wacker Drive, 30th Floor
Chicago, Illinois 60606
Phone: (3 I2)
20 I-2000
Fax: (312) 201-2555
110pp
a
wildllWl1.COIn
lllal) as
1I
wi
Id
tllall.l:Ol11
t1omhro\.\ sk.i (( wildlll..m.\,'ulll
Electronic Filing - Received, Clerk's Office, October 7, 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 REPLY IN SUPPORT OF ITS MOTION
IN LIMINE
NO.2
This Board has repeatedly and unequivocally held that, when a local siting authority
hears testimony, considers evidence and renders a decision on an application for local siting
approval,
it sits as an adjudicatory body, not a legislative one.
Like judges, local siting
authorities are entitled to protect their deliberative processes from discovery on appeal. Without
even addressing this
Board's many decisions on this issue, Fox Moraine
Lee
("Fox Moraine")
asks this Board to reverse itself. This Board should decline Fox Moraine's request.
I.
THE
DELIBERATIVE
PROCESS
PRIVILEGE
PROTECTS
THE
YORKVILLE CITY COUNCIL MEMBERS' MENTAL PROCESSES.
The Appellate Court and the Board have held consistently and without exception that
City Council members sit in an adjudicatory capacity when ruling on
a local citing application.
Southwest Energy Corp. v. Pollution Control Bd..
275 Ill. App. 3d 84, 90-91 (4
th
Dist. 1995);
Land and Lakes
Co. v.
Pollution Collfro! Bd..
245 III. App. 3d 63 I, 638 (3'd Dis!. 1993);
Waste
Mgmt. oJI//., Inc.
v.
Ktmkakee City Bd..
PCB No. 04-186, 2008111. ENV. LEXIS 14, at *67-*68
(Jan. 24, 2008).
Electronic Filing - Received, Clerk's Office, October 7, 2008
Just as the mental processes of judge cannot be subjected to cross.examination during
discovery
or trial, so the integrity of the administrative process must be equaJly respected.
DiMaggio v. Solid Waste Agency o[Northern Cook County.
PCB 89-138, 1989 Ill. ENV. LEXIS
86 at
.13 (Oct. 27, 1989) (citations omitted);
see also Rochelle WasJe Disposal
v.
City 0/
Rochelle.
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.")
Fox Moraine ignores the precedent this Board has firmly established and repeatedly
affirmed over the past decade and relies instead on
People ex ReI. Birkett v. City a/Chicago.
184
III. 2d 521 (1998).
Birkeu
examined whether a legislative privilege existed, not a judicial one.
As such.
it has no application here. [nstead.
Thomas
v.
Page,
361 III. App. 3d 484 (2
nd
Dist.
2005)
is on point and supplies the relevant law. In
Thomas,
the Second District affirmed that a
judicial deliberative process privilege does exist
in Illinois.
The existence
of a deliberative process privilege in the local siting context is well-settled
and
is not controversial. Just as disappointed litigants cannot cross-examine judges on appeal,
disappointed applicants cannot cross-examine members
of the local siting authority before this
Board.
II.
NO EXCEPTIONS TO THE DELIBERATIVE PROCESS PRIVILEGE EXIST
IN THIS CASE.
Under the law as established by lhe Appellate Court and lhe Board. the Yorkville City
Council members are presumed to have acted impartially. This presumption cannot
be overcome
absent a strong showing
of bias, prejudgment or impartiality.
Waste Mgmt..
PCB No. 04.186,
2008 Ill. ENV LEXIS 14, at -57. ("'The presumption of impartiality of the actions of a public
191571'1\2
2
Electronic Filing - Received, Clerk's Office, October 7, 2008
official will be overcome only where it is shown by clear and convincing evidence that the
of1icial has an unalterably closed mind in certain matters.");
West Suburban Recycling
&
Energy
Center,
L P"
PCB Nos, 95.119, 95.125, 1996 111. ENV LEXIS 718, at '14 ("In fact, before an
inquiry into an administrator's mental processes can begin, if contemporaneous fonnal findings
exist, there must be a strong showing
of bad faith or improper behavior."):
Village of LaGrange
v, McCook Cogeneralion Slalion, LLC, No,
PCB 96.41,1995111. ENV LEXIS 1118, at '30.31
(Dec.
7. 1995) ("The Board has previously noted ... that
before an inquiry can be made
into the
decisionmaker's mental processes when a contemporaneous formal finding exists, there must
be
a strong showing of bad faith or improper behavior."') Thus, without first showing strong
evidence
of bias or prejudice, Fox Moraine may not ask whether the Council members reviewed
the record, understood the Council's quasi-judicial role
in the proceedings, what evidence they
reviewed, or why they voted
in a particular way.
City ofRockford v. County of Winnebago, 186
111. App, 3d 303, 313 (2"' Disc 1989),
In this case, the Yorkville City Council members deliberated in public on two nights,
before they voted.
They gave the reasons for their decisions, as is required under the
Environmental Protection Act. 415 ILCS 5/39.2(e). Further, the Council Members' statements
demonstrate unequivocally that their decisions were based on the evidence introduced
at the
hearing, rather than on any pre-existing bias or prejudice.
(See, e.g.,
Tr. of May 24, 2007
Hearing: 7:1.18, attached as Exh,
A; Spears Dep, 31:10.16, 93:19.20, attached as Exh. B.)
Fox Moraine asserts that issues surrounding the April 2007 election created bias, but the
precise nature
of Fox Moraine's argument is difficult to understand. Fox Moraine appears to
claim that the April 2007 elections were hotly contested and the then-pending landfill siting
proceeding was an issue
of intense importance
10
the voters, which atmosphere somehow
1915789v2
3
Electronic Filing - Received, Clerk's Office, October 7, 2008
intimidated the Council Members. causing them to prejudge the application or otherwise become
biased against
Fox: Moraine.
But it was
Fox: Moraine, not the City Council, who created the controversy. Fox Moraine
chose to file its landfill siting application four months before municipal elections. As
is their
right under the Constitution and laws
of the United States, the voters of Yorkville raised their
voices both
in support of and against the landfill. They wrote letters to the editor and put up
signs.
If there was a "hostile atmosphere" lhat aroused feelings against Fox Moraine and the
landfill, it could have been avoided
if Fox Moraine had filed its application ahead of lhe election
campaign, as one
of Fox Moraine's principals stated it could have done. Or Fox: Moraine could
have waited until after the election to file its applicalion. (Hamman Dep. 8:20-10: 15, attached as
Exhibit C.)
The City Council members did not create and did not exacerbate the public outcry. They
were each given a card with a pre-printed statement explaining that they could not discuss the
subject
of the landfill with voters. (Exh. B, Spears Dep. 21:1-4, 50:2-11.) They also testified
under oath that they did not run on an anti-landfill ticket.
(Ex:h. B, Spears Dep. 31:7-13; Burd
Dep. 9:4-22, attached as Exhibit
0;
Plocher Dep. 29:3-23, attached as Exhibit E.) The only
statements attributed to any
of the City Council members regarding the landfill are those
appearing in the
Aurora Beacon News
on April IS, 2007. The statements themselves are
innocuous and hypothetical. Moreover, they are expressly protected
by the Illinois Pollution
Control Act and the United States Constitution. 415 ILCS 5/39.2(d); U.S. Cons!. Amend.
I;
see
also
5 U.S.c. § 7223.
The fact that the landfill application may have been
an issue in the election is Fox
Moraine's fault, not the City Council's. The City Council members were the victims
of the
19I57'9v2
4
Electronic Filing - Received, Clerk's Office, October 7, 2008
election controversy, not its progenitors. The few constitutionally-protected statements made by
City Council members do not raise
to the level of a "strong showing of prejudgment or bias."
III.
THE CITY CO NCIL DLD NOT WAIVE ITS DELIBERATIVE PROCESS
PRIVILEGE.
Without citing any authority, Fox Moraine claims that, by citing the grounds for their
votes on
the record, the City Council members waived their deliberative process privilege. This
argument
is without merit for several reasons.
First, the Environmcntal Protection Act reqUires local siting authorities
to state the
reasons for their decisions. For Fox Moraine to suggest that following the law amounts to a
waiver
of privilege is inane.
Further. the reasons the City Council gave are proof
of the absence of prejudgment or
bias, and the deliberative process privilege can only be invaded
by a strong showing of bias.
Here again, the dots do not
connect
Finally, it is not unusual for a judge to give reasons supporting a particular decision.
Courts issue written opinions every day. Judges announce the reasons for thcir decisions
from
the bench. No onc has ever seriously suggested that, by explaining his or her reasoning, ajudge
waives the deliberative process privilege. Thc same is true for a City Council sitting in an
adjudicatory capacity.
IV.
THE CITY COUNCIL MEMBERS DID NOT IGNORE THE RECORD.
In an apparent attempt to mislead the Hearing Officer and the Board, Fox Moraine claims
that the City Council did not review the record before voting. The City Council members. even
those were elected on April
17. 2007, repeatedly reminded Fox Moraine that they sat through
approximately 140 hours
of testimony and reviewed a mountain of exhibits. (Exh. Fat 20:5-7,
25:22-26:2,98:23-99:1, 101:11-20; Exh. A al 30:24-31:2.)
As the City Couneil members
1915719v2
5
Electronic Filing - Received, Clerk's Office, October 7, 2008
participated in creating the record, they did not have to re-review it in order to render an
impartial decision, nor were they required
to. ("Whether the Board members availed themselves
of the opportunity to review the record is not an issue relevant to this case, as there is no such
requirement that they do
so.'"):
Winnebago County Bd..
PCB 0.88-107.1988 III. ENY LEXIS
128, at .10-11
('.It
is therefore not permissible for this Board to inquire into how the
administrative decision maker dealt with the record
in deriving his or her final determination-so
long as lhere was a fair and adequate opportunity for Rockford to present testimony and evidence
into that record.");
E
&
E Hau/ing,
116 III. App. 3d at S77 ("'[N]othing in the statute would
require a detailed examination
of each bit of evidence or a thorough going exposition of the
County Board's mental processes,").
V.
CONCLUSIO
The Board should grant Yorkville's Motion
in Limine
I
0,2. The Appellate Court and
the Board have repeatedly held that a local siting authority sits
in an adjudicatory capacity. As
such, its members' mental processes are protected
by the judicial deliberative process privilege.
Fox Moraine has failed to make a strong showing that City Council members were biased against
the siting application
or that they prejudged its Olltcome.
Moreover, Council Members'
statements
of reasons for their decisions were in accordance with the Environmental Protection
6
Electronic Filing - Received, Clerk's Office, October 7, 2008
Act. Those statements made clear that their decisions ".ere based on an extensive record of
testimony and exhibits. TI1US, Council Members' mentaJ processes are fully privileged.
Respectfully submitted,
THE UNITED CITY OF YORKVILLE
By:
lsi
Leo P. Dombrowski
One
of its Attorneys
Dated: OClober 7, 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
matv3s@wildm3n.com
dambrawski
(q
.
wi Idman. co
In
1915189>2
7
Electronic Filing - Received, Clerk's Office, October 7, 2008
EXHIBIT A
Electronic Filing - Received, Clerk's Office, October 7, 2008
ORIGINAL
JNI?ED CITY OF YORKVILLE, ILLINOIS
S?ECIA~
MEETING
OF
THE
CITY COUNCIL
REPORT OF PROCEEDINGS taken
~t
the
meeting of the Ci:y Councjl [or the Uniteu City of
Yorkville, taken ou May 24, 2007, at Lhe hour cf
7:00 p.m., before LyneLLe J. Np,,\l, C S.R .. ilL the
Beecher Center, Yorkville. [11ino1s.
n::porllllg
.scn·IC~
'212 Miulh t\aper UOulcvard . SlIite 119.185 •
~alJe"ine.
Il 60540 • 630-9ti3.{)(fJO .
ra~
63().299.51:<i3
wI'I'w.Ilt>1W.f)url rom
C18592
UCYFM005152
Electronic Filing - Received, Clerk's Office, October 7, 2008
•
reviewed all the subm:itted evidence, and J have
to preface my vote with the fact that J have
hours away fzorn our families and the things that
we enjoy doing to deal with this issue.
For me this has never been a city
verous county issue. We are all members of the
somebody else who is not using their 20?
MAYOR BURD:
No.
MR. GOLINSKI:
I only have about six or
seven minutes, 80 if she allows it, I will give
you the reat of mine.
MAYOR BURD:
No .
MR. GOLINSKI:
Since I didn't geL the
opportunity last night with all the newly
presented information, I want to take this
opporLunity to say a couple of words
rega~ding
my
thoughts regarding this application.
First off, since I have the
opportunity,
I
would like to thank all of the
residents of our community tor their involvement
1 have
We have spent many
It has been very time-consuming
Just for the record,
I
would like
in t.his process.
and difficult on all of us.
reviewed the application in its eIltirety.
same community.
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07: 09PM
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..
8
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~
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2<
DepoCourt Reporting Service {630l 983-0030
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UCYFM005157
Electronic Filing - Received, Clerk's Office, October 7, 2008
7
sal Ltlrough every minute of sworn testimony.
I
have
kp.p~
an open mind throughout these
proceedings and there is no doubt in my mind that
I have dealt with this
proce~s
in fundamental
fairness
La
all parties involved.
The only reason l'ln saying thjs is
because no matter the outcome of our vote, I know
the decision will be appealed.
Whatever governing
body reviews these proceedings, whether it be the
Pollution Control Board, the Appellate Court, or
even the 1111noio Supreme Court,
I
want them to
know that my decis10ns were based solely on the
evidence presented in the application and sworn
testimony presented in these hearings. My
decisions have been made solely on the facts.
1
have never showed a predetermined bias for or
against the applicant.
The rationale behlnd my
vote has been well thought out and well
researched.
As hard as this
pro~ess
has been to
keep my opinion to myself, r have nevp.r done
any tiling through my words or actions to jeopardize
my voce.
Whether or not this means anything in
th1S hearing process is yet to be seen.
With all
DepoCourt Report1ng Service (630) 983-0030
C18598
UCYFM005158
Electronic Filing - Received, Clerk's Office, October 7, 2008
28
them will end I will be a senior citizen.
n:ullitoring wells installed before opening the
operation, cU[lsidering at 2S years before allot
MR. PLOCHER:
I also have two additional
I would like
Who would lLke to
ThaL's it.
The first one being
Okay.
r have one additional and I
Yes.
As far as Criterion 2. I
MR. MUNNS:
MAYOR BURD:
Okay.
MAYOR BURD:
teet, ann t.he second one being
Lh~t
the owner and
will read the things now so we don't have to do it
the operator of the landfill be completely and
that I would like to see on there.
that the height of the landfill be reduced to 50
Lo see a $10 million a year flat fee instead of
ti.pping fees, and also I would 1 ike to oee
0.11
8peak next?
Alderman Munns?
notice a couple of places in the resolution, the
two additional conditione.
aCCllrately idenli[jed pursuant to
Criterl~
9.
later.
That would be all of them.
1
2
3
4
07:),PM
,
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7
.,
8
"
9
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10
I'
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12
,
,
.
13
,.
07:40PM
'"
16
n
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..
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07:40PM
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22 proposed resolutions. about not doing this until
, .
, .
23
24
the Prairie parkway and Eldemain Road bridges
going over -- over Eldemain Road over the river.
r
DepoCourt Reporting Service (630) 983-0030
C18619
UCYFM005179
Electronic Filing - Received, Clerk's Office, October 7, 2008
"
29
,
,-
,.,
1
>
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4
07 • ... OPM
5
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7
8
9
T would like to put a condition that, you know,
before truck traffic goes down Bldemain and
RouLe 34 betwp.p.n Cannonball and Eldema.iu, that
if there is any other better ways to go, because
with the Menards truck traffic there is just way
too
~uch
truck traffic going through that
intersection already.
I have a quick little statement.
Again, this isn't new information about the
situatiOll due to its multi-faceted character.
the
ei~in9 pro~ees
must therefore incluue
political conflicrs centered on who should make
the most contentious
p~rt
of the solid wasLe
The
The
procedure of
IL
is
widely accepted that in every
'rhis is about the whole process.
Landfill
~iting
permitting and appropriateness arc
Many communities have faced extreme
problem in our country today.
that'g whaL they are asking us to do.
such as geology, engineering, planners, elcetera.
All evidence Erom this field must be compiled and
eva]uaLed in order to make a proper decision and
the decision.
qualified scientists coming from different
fi~lds
landfill siting process composes a very complex
07,41I'M
10
criterion.
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12
13
14
07,4.1PH
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I.
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, ,
,
,
"
,
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DepoCourt Reporting Service (630) 983-0030
C18620
UCYFM005180
Electronic Filing - Received, Clerk's Office, October 7, 2008
3D
most part. average citizens witll expertise in
deciR1on-making process the extracted re9ults
~re
characterized by the stakeholders' objectivity.
The real qUp.Ation is who should be
about my main business or the sports
I
officiate
and
I
will give you definitive op1nions. "ery
rnnfidenl and correct opinions. and argue them
with anybody.
I
believe right
ia
right and
wro~q
is wrong. but in this case I'm JusL making the
best. decision wiLh what I have to work with, which
is a layman's kllowledge of some very technical
l\sk me
We are
I
for the
The most common
After reading thousands of pages
to counLies and municipalities.
other areas than geology and traffic.
type of siting process is to riecide, announce, and
defend a model which hasn't been accepted easily
by interested partiec and locnl citi7.ens
h~ve
dpmanded to be included in the process to have 1lI
more comprehensive strategy. And, after all, we
aLe all citizens of Yorkville and have the same
vested irlterest to site it or not.
The etltire process is really
unf~ir
subject matter.
stakeholders in Kendall County.
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4
01,411-,"
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P
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UCYFM005 J8\
Electronic Filing - Received, Clerk's Office, October 7, 2008
31
of dry, boring material and listerling to hundreds
of hours of testimony, we must make a decision
that will
p.ffp.~r.
many people today and in Lhe
lEPA or other entities can trump us and allow
these many hours of agonizing over this
j~sue
to
be a moot point.
It seemed ludicrous too that the
person with the moat experience 10 landfill
llearings. over 30 sitings as testified, isn't here
ct[[orded the same privilege but written oLatcments
do not hold the same emotion as speaking, and I
would have liked Lo hear it coming from the
people, not just reading a piece of paper where
you can't read in an emotion.
We
have varying opinions
frulll
several high-priced attorneys who are being paid
by the petitioner, and I don't think that makes
sensp., which the whole process really didn't make
sense so 1 guess that shouldn't surprise me.
And my final thought is that after
this is donp., hopefUlly we can all act civilly
!:owdrd one another, because 1 have no hard
co give hio opinion orally. We shoul d have been
[uluce.
If we don't do the process correctly,
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Electronic Filing - Received, Clerk's Office, October 7, 2008
EXHIBITB
Electronic Filing - Received, Clerk's Office, October 7, 2008
00001
I
BEFORE THE
ILLINOIS POLLUTION CONTROL BOARD
2
FOX MORAINE, LLC,
)
3)
Petitioner,
)
4)
vs.
) No. PCB 07.146
5)
UNITED CITY OF YORKVILLE,
)
6 CITY COUNCIL,
)
)
7
Respondent.)
8
DISCOVERY DEPOSITION OF
9
ROSE ANN SPEARS
10
June
4, 2008
5:30 P.M.
II
12
Called as a witness by the Petitioner
13 herein. pursuant to the provisions of the Code of
14 Civil Procedure of the State of Illinois and the
15 Rules of the Supreme Court thereof pertaining 10 the
16 laking of depositions for the purpose of discovery,
17 before CIIR1STfNA M. CULOlTA, C.S.R., License
18
#084~003299,
qualified and commissioned for the
19 Slate of Illinois, taken at 800 Game Farm Road.
20 Yorkville, Illinois.
21
22
23
24
Spears, Rose ADD - 06-4-08
Page 1
Electronic Filing - Received, Clerk's Office, October 7, 2008
00020
I other documents that would be responsive to the
2 rider?
3
A That's correcl.
4
Q Do you know whether there was action taken
5 by
the City Council to retain the Wildman finn
6 before April 27, 20077
7
A I really can't recall.
8
Q All right. The, the invoice from the
9 Wildman firm indicates that on April
281h there was
10
some
work performed to determine what may be
II considered improper contacts.
12
What is your understanding of
t
3 improper conlacts?
14
MR. HOPP: 1 am going to object to the extent
15 that that would impinge on attorney/client
16 privilege; but to the extent that you can answer
17 that question without revealing any attorney/client
18 privilege, go ahead and answer the question.
19
THE WITNESS: Can you repeat YOUT question?
20 BY MR. MUELLER:
21
Q What is your understanding of the lenn of
22 improper contacts in a landfill siting context?
23
A Improper contacts?
24
Q
Yes.
Spears, Rose Ann - 06-4-08
Page
20
Electronic Filing - Received, Clerk's Office, October 7, 2008
00021
I
A Mr. Price gave us a little card and
2 indicated that we could not speak about the landfill
3
(0
basically anybody imaginable, including family
4 members.
5
Q Did you ever give any direction to the
6 Wildman firm or any cfits members with regard 10
7 the type of legal work they should be pursuing as
8 evidenced
in Ihis invoice?
9
A No. I did
110t
give any direction.
10
Q All right. Did
you
attend any meetings
1\ ever at the Wildman firm?
12
A No.
Jdidnol.
13
Q And were you the person that chose them
14 specifically to be the City's legal representative?
15
A J would just like
10
clarify that any
16 decision made based on the City Council is a
17 majority of eight elected officials. So did I
18 personally select them? I could nol personally
19 select anything, any firm. I cannol personally make
20 any ruling on anything. It's collectively. It's
21 the majority of the Council.
22
Q All right. And, Rose, our problem is that
23 we
have searched the minutes of the City Council and
24 cannot find any motions
ever retaining the Wildman
Spears, Rose Ann - 06-4-08
Page
21
Electronic Filing - Received, Clerk's Office, October 7, 2008
00031
I
A Oh, no. They did not.
2
Q
Did anyone from FOGY, or anyone else for
3 that matter,
ever indicate to you Ihat their support
4
or non-support in your
reelection campaign was
5
contingent upon your
landfill position?
6
A No.
7
Q Would it be fair to say thai you ran for
8 reelection on an anti-landfill platform?
9
A Oh, certainly not.
10
Q
Did
you in your campaign ever express an
II
opinion as to
whether or not Yorkville should have a
12 landfill?
13
A No.ldidnol.
14
Q Were you endorsed
by
the FOGY group to
15
your
knowledge?
16
A Not to my knowledge.
17
Q Did
you
have a web site during your
18 reelection campaign?
19
A No.ldidnol.
20
Q Did
you
have any MySpace presence or any
21 other kind of
*-
22
A No. I did not.
23
Q -- Internet presence?
24
A No.
Spears, Rose Ann - 06-4-08
Page
31
Electronic Filing - Received, Clerk's Office, October 7, 2008
00050
1
A No. I do not.
2
Q Did you receive any personal
3 communications, meaning face-ta-face. from anyone
4 urging you to vote no or expressing opposition?
5
A I believe we all did; and that's why we
6 had that preprinted card that
we could, that
7 Mr. Price gave to each one
of us indicating -- I
8 mean, people did, even at the hearings
came up to us
9 and would start discussing
it and we would just give
10 them the card or repeat what was on the card, that
II we were not allowed to disclose it, or discuss it.
12
Q What was the total number of e-mails that
13
you
believe you received from the landfill
14
opponents?
t
5
A I couldn't even begin to guess. I'm
16 sorry.
17
Q
Would it be more than 100?
18
A
That would be assuming and guessing. 1--
19
Q
Would
it be
morc than ten?
20
A
Again, that's an assumption at this time.
21 I really don't know.
22
Q
So you don't know whether it was one or a
23 thousand?
24
A That's correct.
Spears, Rose Ann - 06-4-08
Page 50
Electronic Filing - Received, Clerk's Office, October 7, 2008
00093
1
Q
Did ),ou know any names?
2
A There is a George Gilson that I believe
3 was very strong because he had most orthe
4 infonnation and he would speak the loudest and carry
5 the biggest sign.
6
Q And did you sec Mr. Gilson speak wilh any
7 City Council member outside of the hearing?
8
A No. I did not.
9
Q
Are you aware that Mr. Gilson spoke to
10 City Council members outside of the hearing?
II
A NO.lamnol.
12
Q
Which City Council members ran on an
13 anti-landfill plalfoml?
14
A
I don't believe any of them did.
15
Q
Upon \\ hat do you base that?
16
A
Pardon me?
17
Q
Upon what do you base that belief?
18
A
On the infonnalion that Mr. Price gave us
19 that we were supposed to be non-bias; and I believe
20 most,
or all, were non-bias.
21
Q Were you -- well, strike that.
22
Was there any discussions that you
23
v.ere privy to about filibuslering during the
24 hearings in order to effccluate Ihe change in the
Spears, Rose
ADD -
06-4-08
Page
93
Electronic Filing - Received, Clerk's Office, October 7, 2008
EXHIBITC
Electronic Filing - Received, Clerk's Office, October 7, 2008
NFOlllC 1'lIE
IU.ll'018 POLU.nlOll
CQHTIIO~
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Jun>tar C&IOpbali. caM. RI'R
I.>o.n ••
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'no. d1o""".oy d<>po.H>on or DOll
~,
t.ohn
In
t~.
_.-.ntHl.... cau ••• booro ....
.;zlll<lnM
CAHPDZLL •• noUoy pubho or 1IoIndolil County,
I1hnou. on
t~.
30tl> day or
l-vt_~,
2008 .t
2,]0
p .•.•• t
100
.....
ra ...
""'.<1. York,nII••
IIhnou.
",,~.uut
to lOou"...
P4
P 42
EXAMINATION
IN 0 EX
WITNESS
DON HAMMAN
By Mr Dombrowski
By Mr Blazer
EXHIBITS
NUMBER
MARKED FOR 10
Yorkville Deposition Exhibit
No.1-2
P 5
(Retained by Mr. Dombrowski.)
1
2
3
4
5
6
7
8
9
a
1
2
3
4
5
6
7
8
9
a
1
2
3
4
,
,
,
,
,
I
~o.
PCB
o~
146
UIHn:O
...
CIT\' OF YORI<VII.LI.. <;Ifi
COUNCIL.
FOX lC>RAI lIE.
u.c:,
f'ootltlon.<.
,
,
,
,
•
•
,
,
•
..
"""
"
"
~
"
"""
""""
1
3
1
APPEARANCES;
,
2
MUELLER ANDERSON, P.C.• by
2
3
MR GEORGE MUELLER
3
4
609 Etna Road
•
5
Ottawa. lIIinois 61350
5
6
(815)431.1500
6
7
Representing
the
Petilloner:
7
BB
9
WILDMAN HARROLD ALLEN & DIXON. LLP. by
9
10
MR LEO P. DOMBROWSKI
10
"
225 West Wacker Drive
"
"
Chicago. Illinois 60606
13
(312)201-2562
13
"
"
Representing the Respondent;
15
15
"
"
JEEP & BLAZER. by
17
MR. MICHAEL S. BLAZER
"
17
18
24 North Hillside Avenue
18
20
"
Hillside.Suite
A
Illinois 60162
20
"
21
Representing the Kendall County
21
22
ALSO PRESENT:
22
23
Mr. Chartes J.
Murphy. Fox Valley
23
4
Consulting services. loc.
24
2
(Witness duly sworn)
MR DOMBROWSKI Mr Hamman, my name is Leo
Dombrowski (represent the City of Yorkville 10
thiS landfill appeal I'm gOlO9 to
be
asklOg
you
some questions
today
You vnderstarn:lthat we have
a
OO\Jrt
reporter here
to
record everything that you
and I say?
THE WITNESS I
do
MR DOMBROWSKI, And that If you'd let me
finiSh my
question before
\'0"
start your answer.
and I won'l step on
yoor answer. 50 lhat we get a
clear record
All nght?
THE WITNESS Okay
DON
HAMMAN,
called as a Witness herein. haVIng been first duly
swom. was
e~amlned
and testified as follows
EXAMINATION
BY MR DOMBROWSKI
Q
Are
you
on any drugs or medications or
anythmg thaI you thInk
mlgh~
interfere With your
ability to answer
my
queslions today?
A N'
Q
Let me show you
what
we have mar10led as
YOfiIvilie DepoSItion EJochlblt No 6
4
1 (Pages 1 to 4)
McCORKLE COURT REPORTERS, INC.
CHICAGO, ILLINOIS (312) 263-0052
Electronic Filing - Received, Clerk's Office, October 7, 2008
1
And one other thing, if there's a quesllon
1
A.
My family. yes
2
that you don't understand, please ask me to
2
Q.
So you mean not JUS! you. but other people
3
rephrase it, othelWlse, I'll assume you have
3
as well?
4
understood the question. Fair enough?
4
A
My wife and my sons
5
A.
Um.hum.
5
Q
Are
you
the managmg member of the lLC?
6
Q
And you'll also have to answer out loud.
6
A.
y"
7
Mr. Hamman?
7
Q
And what are your roles and duties 85 the
a
A.
Yes.
a
managing member of the LLC?
9
Q.
You'll have to answer out loud 50-
9
A
My role was to procure a managemenlleam.
0
A.
Repeat the question.
10
ThaI's the eKlen! of it
11
Q.
II you don't understand a question I pose
11
Q.
Is it fair to say thaI you're the main guy
12
to you, please let me know, I'll rephrase ii,
12
at Fox Moraine. LlC?
13
otherwise, I'll assume thai you've understood the
13
A.
One
01
the main guys
14
question. Fair enough?
14
Q.
Who are lhe other main guys?
5
A.
Yes.
15
A.
Lee Brandsma and John Gamty. They're
16
Q.
Have you seen this exhibit before?
16
49.percenlowners.
11
A.
No.
11
Q
And you own 51 percent?
18
Q.
This is the notice of your deposition
18
A
Correct My family
19
today. You say you have not seen this before.
No
19
Q
You with your family you say own
0
one gave this to you?
0
51 percenl?
1
A.
Not
10
my recollection.
1
A.
Urn-hum.
2
Q.
Did you bring any documents with you
2
Q.
That's a yes?
3
today?
3
A.
y"
4
A.
No, I did not.
4
Q.
How did you decide to submllthe
5
7
1
Q.
Is it fair for me to assume that you have
1
application to Ihe City of Yorkville to site the
2
no additional documents to produce in this case
2
proposed landfill?
3
other Ihan what Fox Moraine has already given us?
3
MR MUELLER. I'm gOing to objecllo the form
4
A.
That
IS
correct.
4
of the question Pretty vague
5
Q.
And are you represented by counsel today?
5
What do you mean by how did you decide?
5
A.
Yes.
6
BY MR. DOMBROWSKI
7
Q.
And that is Mr. Mueller here?
7
Q
All right. Fair enough.
a
A
That's correct.
a
At some point, you deCided to submit an
9
Q.
What did you do to prepare for today's
9
application
10
the City of Yorkville for the
0
deposition?
10
landfill; correct?
1
A.
Drovehere.
11
A
y"
2
Q.
Other than that?
12
Q.
And when did you make that decision?
3
A.
That's it.
"
A
Sometime after
we
deCided to go forward
4
Q.
Did you speak with Mr. Mueller al all
14
With the -- a landfill
5
about today's deposition?
15
Q
And when was that, approximately?
5
A.
I did not.
16
A
Maybe September, October I don't recall
7
Q
Did you look at any documents?
11
the exact date
8
A.
No, Idid not.
a
Q
Of2006?
19
Q.
Where do you live, sir?
19
A Yes.
0
A.
13351 B Faxon Road, Plano, Illinois 60545.
0
Q
Now, when you filed the application on
1
Q
And what's your relalionship to Fox
1
December 1, 2006, did you know thallhe City of
2
Moraine. LLC?
2
Yorkville would
be
holding ejections in ApriI2007?
3
A.
I'm one of the owners.
3
A.
Yes.
4
Q.
Are you the main owner of the LLC?
4
Q
Why did you decide to file the applicalion
6
8
2 (Pages 5 to 8)
McCORKLE COURT REPORTERS, INC.
CHICAGO, ILLINOIS (312) 263-0052
Electronic Filing - Received, Clerk's Office, October 7, 2008
1
in December wIh elections four
months
Of so In
the
1
A.
I have never read lhem
2
offi",1
2
I have complele faith In my management
3
A.
I
have
no idea
wry
I have a rnanagtng
3
team
•
partner
group ltllIt
chose
to
go
forward I
doll'
•
a Are
you aware, Mr Hamman. that part of
5
rricromanage
my proteCts
5
tillS landfill appeal- strike that
6
a
But you v.ere
uncIer
no
c1eadline
Of
6
In thIS landfill appeal you're aware that
,
7
December
anyItwlg.
I lJflcIeRtand,
1st
'06, correa?
Chat
made
you
file
it
by
,
1
Fox
blasedMoraine
agalO$III_
1$
claimingYou
uOOef5landthat
the City
that?
Council was
I.
9
a
A, What
Arr1legaldo
youdeadline?
mean a deadline?
•
9
MR
A
RepeatDOMBROWSKI
tnt!
questionReadagatnthat
back, please
"
A.
NOItomy~
"
(Rel::ord read as requested)
12
a.
So
you could have filed the application
12
THE WITNESS Yes, I do
13
befOfe December 2006; COITed?
13
BY MR DOMBROWSKI
,.
A.
I'm not aware 01 the environmental lava.
I<
a
And who on the City CounCil are you
"
a
I'm saying. apart from any envIronmental
15
claimmg was biased against Fox Morame?
18
lava, you could have filed the application with the
16
A
Valerie Burd. Rose Spears
17
City before December 01 - belore December of 2006.
17
a
Anyone else?
18
oe<red1
18
A
No
19
A. I'm not slKe
19
a
You're not clalmlngthal Mr Werdench was
1>0
a
INhat 'M>UkI have prevented you from filing
•
biased?
,
it any earlier, if anything?
,
MR MUELLER Are you asktng fOf hiS personal
In
A.
""""""W
2
knowledge or personal claIms? Because, It\ that
3
a
So
as you
sit
here, nothing Chat you know
3
case they're Irrelevant
•
of ItIal
w:ud
have prevenlecl Fox Morame LLC from
•
MR DOMBROWSKI I'm askmg hun as a
9
11
,
riJing its landfiJI
applicatJon ear1ier
!han
,
representatIve of
folt MoraIne
2
DecembeI' of
2006.
COfled?
2
MR MUELLER He's alreacly
Ie$lJfled thai
as a
3
A. Repeat
the
queslion
3
representatrve of
Fox Morl108
he
doesn'
•
MR. DOMBROWSKI: Read
thai badt
if
you
YlOUkl,
•
miaomanage and delegates
those
calls to hiS
5
please.
5
managemelllieam You're welcome to 15k hlffi abool
6
(Record read as requested.)
6
his personal knowledllf! or beliefs
,
7
THE
MR. MUELLER
WITNESS
If
I don't
you know
know
,
7
MR.
THE
DOMBROWSKI
WITNESS Could
Sure
I ask a Question?
9
BY MR. DOMBROWSKI:
,
MR. MUELLER: Sure
10
a.
Nothing that you know of: correct?
10
THE WITNESS
When
you selld Wally Wer(jench,
"
A. Not that I know
"
are you talking about
the
newty board or
the old
"
a
Anything that v.ould have prevented Fox
"
board?
13
Morante, LlC from
r~lI'IQ
the applicaoon
laler
than
13
BY MR. DOMBROWSKI
,.
_20061
,.
a
rm talkIng about the eoght.1dem1en who
"
A.
Nothlng ltIal I know
of
"
voted on
the
applica\lon in May 2007
"
a
DId
you assist" prepamg
Fox Moraine's
"
A. wen.
III thaI
case.
Mr Wally
Weroencn.
17
interrogatory
iIl15VIerS?
17
he
was biased as wei
"
A.
No.1 did not
"
a
AI flI:Iht. let me
shoW
you what we've
"
a
Did you
assislln
prepanng Fox Moratne'S
"
marked as
DeposIbon
ExhbI No
1.
wt.dl is Fox
1>0
responses to
the docU'nent
requests?
'"
Mora!ne's
second
ameoded petitIOn
'Of
rlNleW,
and
1
A.
No.
I
did not.
21
attached
to
!hat IS
the
Oty's resolution denying
In
a. Were
they ever sho\WIto you?
22
the
landfill application
wNch
has a ksl ollhe
3
A. No
23
aldermen
who
voted
Do
you see
thai
thefe?
•
a.
YOl/Ve never readlhem?
"
A. Yes
10
12
3 (Pages 9 to 12)
McCORKLE COURT REPORTERS, INC.
CHICAGO, ILLINOIS (312) 263-0052
Electronic Filing - Received, Clerk's Office, October 7, 2008
1
Q.
All right. So you've mentioned three of
1
2
the ninepeople?
2
3
A.
Well, in looking at this. it refreshes my
3
,
memory. Robyn SUlcliff. Wally Werdench. Joe
,
5
Plocher, as I recall there was a news article two
5
6
or three
da~
prior to their - the election, and
6
7
both of them based the landfill as pan of their
7
8
election platform, they were against it I believe
8
9
il was in Ihe Aurora Beacon News, if 1recall
9
0
correctly.
10
1
Q.
And you saw Ihat article when it appeared
11
2
the Sunday before the electiOns?
12
13
A.
We gel the Beacon News delivered daily.
13
,
yes.
14
5
Q.
Okay. So you would have read that article
5
6
Ihatday?
6
7
A.
Oh, most definilety.
17
8
Q.
Did you lell anyone on your management
18
19
team or landfilileam what you Ihoughl of the
19
0
article?
0
1
A.
t would have probably called. but I don't
1
2
recall
if
I did or not. Every time there was a
2
3
news article In either the Aurora Beacon News, I
3
,
would call Charles Murphy or Jim Burnham and lell
,
13
A Burd is nolan here.
a
Well, she signed il?
A Well, but you pointed to Ihis. She's not
there
a
If I misspoke or if I didn't mention It, r
mlsspoke I meant to say the eight aldermen plus
the mayor.
A, Okay, I! would
be
the mayor as well.
a All
right. When did you first think thai
Mr
Werderlch was biased against Fox Moraine?
A In seeing him around lawn,
at functions,
he had
the no-landfill buttons on him
a And when did you see him wearing
no-landfill buttons?
A At the meetings that I attended, the
hearings I attended some
of the hearings at Ihe
high school He had the buttons on.
a
Now, were these Ihe annexation hearings
you're talking about?
A No. No.landfill.
Q. So these were the landfill hearings thai
look place in March and April of
200n
A Yes.
a
Somelhing else that indicated to you
15
1
them about these articles. I don't recall if I did
2
on thet particular one, because they don't
gellhe
3
subscription, the daily one, like I do.
4
Q. You recall
calling either Mr. Murphy or
5
Burnham about this April 15th article?
6
A I would
have alerted them to it.
7
Q. And what would you have lold them?
8
A. Take a look atth!s, whallheir platform
9
Is.
It was antI-landfill.
o
Q, And you say that you also called Ihem
11
regarding other articles that- In which you
12
thought indicated some bias by the City against Fox
13
Moraine?
14
A, Yes.
5
Q. Can you recall
how many other articles
6
there would have been?
7
A, There would
have been leiters to the city
8
editor, et cetera, you know,
by the various people,
19
urn-hum.
o
Q.
Anyone else on that list who you claim was
1
biased againsl the City?
2
A. Just those four
3
Q, Okay, Well, you mentioned five,
Burd,
4
Spears, Werderlch, Sutcliff, and Plocher?
14
1
Mr. Werderich was biased against Fox Moraine?
2
A, Thai's It.
3
Q.
So
when you saw him wearing these buttons
4
in March and Apnl of 2007, I assume you shared
5
that
WIth your landfill Ieam?
6
A No Everybody could see It I dldnl
7
share It with anybody
8
Q.
Well, did you point
out
to Mr Murphy or
9
Mr Bumham or anyone else Ihat Mr Werderich was
10
wearing these buttons?
11
A. Idldnol.
12
Q.
&It you say you. yourself, certainly were
13
of the belief in March and April of 2001 that
14
Mr. Werderich was biased against the landfill,
15
correct?
16
A. Repeat
the
question.
17
MR. DOMBROWSKI: Read that back, If you would,
18
please.
19
(Record read as requested)
20
THE WITNESS: Yes,
21
BY MR. DOMBROWSKI:
22
Q
How aboU1 Robyn Sutcliff, why do you say
23
she was biased against the landfill?
24
A. She was wearing
the
buttons as well.
16
4 (Pages 13 to 16)
McCORKLE COURT REPORTERS, INC.
CHICAGO, ILLINOIS (312) 263-0052
Electronic Filing - Received, Clerk's Office, October 7, 2008
EXHIBITD
Electronic Filing - Received, Clerk's Office, October 7, 2008
00001
I
BEFORE THE ILLINOIS
2
POLLUTION CONTROL BOARD
3
4
5 FOX MORAINE, LLC,
)
)
6
Petitioner.
)
vs.
)
PCB
No. 07-146
7)
UNITED CITY OF YORKVILLE,
)
8 CITY COUNCIL,
)
9
10
)
Responden!.
)
II
Discovery deposition of VALERIE BURD, called as
12 a witness herein, pursuant to the applicable
13 provisions of the Code of Civil Procedure of the
14 State of Illinois and the rules of the Supreme
15 Court thereof, before Belinda A. Harr, CSR No.
16 84.00321 S. taken on June 18,2008, at 1:30 p.m. at
17 800
Game Farm Road, Yorkville, Illinois.
18
19
20
21
22
23
Burd, Valerie - 06-18-06
Page 1
Electronic Filing - Received, Clerk's Office, October 7, 2008
00009
I any landfill should be sited by the City of
2 Yorkville?
3
A. No, I did not.
4
Q.
All right. Is il fairto
5 characterize one ofyour campaign platforms in the
6
campaign for mayor as having been an anti.landfill
7 platfonn?
8
A. No.
it is not fair.
9
Q. You do
nOl
believe that you ran as
lOan anti.landfill candidate?
II
A. I did
not run as an
anti-landfill
12 candidate.
13
Q. Was the City's position with respect
14 to a landfill in your opinion an issue in your
15 campaign against Art Prochaska?
16
A.
The City had no position.
17
Q. Well. your position versus Mayor
18 Prochaska's position. Do you believe thai the
19 siting ora landrilJ was an issue in that
20 campaign?
21
A. No. We -- I did not discuss it as
22 an issue.
23
Q.
Did )OU form a campaign committee
Burd, Valerie - 06-18-06
Page 9
Electronic Filing - Received, Clerk's Office, October 7, 2008
EXHIBITE
Electronic Filing - Received, Clerk's Office, October 7, 2008
00001
I
BEFORE TilE ILL! 015
2
POLLUTION CONTROL BOARD
3
4
5 FOX MORAINE, LLC,
)
)
6
Petitioner,
)
VS.
) PCB No. 07-146
7)
UNITED CITY OF YORKVILLE,
)
8 CITY COUNCIL,
)
9
10
)
Respondent.
)
11 Discovery deposition of ARDEN JOSEPH PLOCHER,
12 called as a witness herein, pursuant to the
13 applicable provisions ofthe Code of Civil
14 Procedure of the Slate of Illinois and the rules
15 oflhe Supreme Court thereof. before Belinda A.
16
I-Iarr.
CSR No. 84-003215. taken on June 18,2008,
J 7 at 4:00 p.m. at 800 Game Fann Road, Yorkville,
18 Illinois.
19
20
21
22
23
Plocher, Arden. 06.18.08
Page I
Electronic Filing - Received, Clerk's Office, October 7, 2008
00029
1 a slate for election
10
Ihc City Council?
2
A.
Yes.
J
Q. Who were Ihe members orlhe slale?
4
A.
In
general. me, Robin. Rose. Val,
5
and Wally.
6
Q. Rose \\35 a member afthal slate?
7
A. I believe so. yes.
8
Q. Did the group of you coordinate your
9 campaign activities in any way?
10
A. Like when we would meet together --
I 1
Q. Yes.
12
A. -- people together?
IJ
Q. Yes.
14
A.
We tried to.
15
Q
Did the slate have a position on the
16 landfill siting?
17
A. Not that I'm aware of.
18
Q.
It
did nOI have an anti-landfill
19 pl<ltfonn?
20
A. No.
21
MR. IIOPP: I'm sorry, was that, no, it did
22 not?
23
TilE WITNESS: No, it did not.
Plocher, Arden - 06-18-08
Page
29
Electronic Filing - Received, Clerk's Office, October 7, 2008
EXHIBITF
Electronic Filing - Received, Clerk's Office, October 7, 2008
UNITED CITY OF YORKV!t,f,E:, ILLTNOTS
SPECIAL MEE:TJNG Of
THE CITY COUNCIL
REPORT OF PROCEEDINGS had ar.d testimony
laken at the hearing taken on
H~y
23, 2007, at
the hour
o~
7:0U p.M., before
Ch~istlne ~.
Vitosh. C.S.R"
at the Grande Reserve Elementary
School, Yorkville, III inois,
reporlll1g SCn'I(C
1212 Souill
~.lper BnlJll~atd
• SUite 119-185 • "-IIJe....lUO, II (.0540 • 630-983-U030 ' fall 630-299-5153
WWW
I1e
IIl..liW\II'I.c."llm
C18535
UCYFM005096
Electronic Filing - Received, Clerk's Office, October 7, 2008
Landfill Hearing
May
23, 2007
I
We IIOOLd
spend
tillc, each
"/ aldeIJliln would qet all qI!XIrtuDity to disc"..lSs,
if
J
you
wa:lt toniqht,
)'OU
can jt.ell diSCUS5 )'O:.LC 0Wll
~
opiniO!lS on your 140 hours oJ testimny blt )'O'J
, hedrd, the public
((lWJl!:llt
that you re<td dJring
, the Iut 30
dip
tNt's bun on the vebsili! and
1 t.'len
t(8)[[OIIf
we can
ad::!
to
t.\jf
dl5Qluion of
, anything )'00 can gel out of the doctnenls U!at
, were siblll tted on the 2200, U
YJU
want to do
JO lllat, wt tltAVI! it up to you. [1'5.- it's noll
J1 in the City CO'.IIdl's hands, it's no longer a
12 public hcadll9' we arc :.LOOec
tile
City Colocil
/1 r:Jles, so it's at your pleasure. You Irt the
u aldemen, Wt do
}'lXI
val'll to
do?
Jj
~
SP&o'JlS: 1000e iloIlO!, I
" wou.ld tile to S1:)ge5t that
WI!
do contilllll! .r.d
11 have our d.i.&cu.sIIion this tvminq aDd if
we cD
I' !lave -- >hen
is
110 ....ay I
a:I
going to be wll! to
It
read
1M:
docultral Crml liE to U. J qet IDE
1q
1J1Ilil bve o'clock in the -acnl1l9
~n
r have to
2J Yate up for 110ft. There
is
absohtely no way I
n
ean do that.
Evelyn
Wood Cilnool al:COlllpllsh that.
2JI'JIIsorry.
U
You know, and I JUSl leel that
I this COuncil sat lJ'.rough all tl:ese hearings, I've
2 90t jUllt IlOU!book.:s full
oC
II)lu
thaL 1 Iw.n
J tatta. I
fed
that I • IlCt biased, I did tab
• th:lrtUj!IlOW, a-', igaln, I thbt that I was
3 nked to
be
reso"led at
the
beqiMinq
jU!t
btca~
, ttoey know I:'J track
r~d
all:! taklnq notes all:!
1 researchilllJ, arxl I feel I
alii
totally prepared to
, rule on this.
,
Ko\YOR 1llJRl): Okay.
Any other
10
c~nts?
JJ
A1,D&RMA!I f'IINNS: I have a
question.
/2 When we
qet
an
ordilllonce
fzen
the city attorney,
JJ 1S it going to be one (XlIUensus
t~tion')
H I rean, llhat are - a muple of people say well,
15 1 would approve it with these 39 conditions am
16 hall sily w..s, !N.ll say 00.
n
J _an, ue
'iC!
Just 901ng to
1J
cae up to one
COllM'llSUS? ....1d
vn.at
U Ill!
don't
lJ
have a COllseMU:S, are 'J'OII
j~t
9Oi09 to IIIlIke an
1tI
ordinilm:e
to vote on
ye!l or
no')
11
H!l., 1lOTIt: o.rr
iotentiOfl Io'M to
n
lbten to
)'OIIt
co-rents and develop a rMOlution
13
that r.IIilodied your decision
based
UlXln wIlat the
U
deliberations lo'Ould be, so we ha\le to listen to
I
see what
)'CU
intend, but there is .. there is
2
d1!ferent 'oiI)'S of
001lll]
this.
J
J[ ll's eleu,
if
we get clear
~
direction
t
think 'fOIl the debate, we 'o'Otlld ccw
j
bact with a sinqle resolution; Iowever,
Ill!
Ciln
, certainly cc.
bact
lIith • resolution trot
1 antlClpatts appro..l, in other words, aU of the
, siting crileria is satisfied; that an:JWUS
, approval lIith conditions: or that anticipates
10
denial. iIe can •• We can do 411 three, and it
II vould IIOt be In enol1lOUs burden to
d:l
thllL
11
AI.llRWt M.'llIlS: fOIl Illl!an all three
lJ
ordinances we are to tote on?
l~
til.
Jm'Jl: !t.e only _. lhe only
IS Issue tlut's difficl1t I think ioS we hi'll:: to
U listen to what you're going to yy. hear
v!lat -
11
siting
s14rdards.
I'
If
J'Ou \len! to find, for
a
e~Ie,
that CUllin
s!linr~s
wet! 110: ytlsfitd,
20 tbe.'1 -
if Iff!
und -
if lie
he"r that the Council
11 ClJ'llb lhat lh@ slting sundards lfOuld be
12 satisfied
if
certlin condiliClrul \litre
~dopted,
13 then our resolution would say tlla:. Ife h.1ve to
1f lIear wholt
}'OIl
hilve Lo
50JY
in oede.! to do lllat,
J obvious!y.
1
.r.Jmvwt 1«IIliS: Oka)..
AId then
-t
J other - IIY lut qlJeStion woulc be let 'I jUlt say
• U exalple on criterion I, 1'.00t saying what
S
CIiterl.on 1 is, .1.1 .,. notn I toot
iI
ltO hours
, or 110 hours or whitner I ntde of lhose hours,
J let's say
IIy
decision lias to go one IllY,
but
then
, I read PJr
~nts,
Derke Price's and Larry
, Clark's
COIIEnts, and it chanqcs
rrt
criteria, so
10 toniqht it aiqht be 00, and then if I read your
II expert opinion, chen It convinces
~
that
they
11 at it, tllen whu happens?
B
14\. PDfH: Well,..,. undersUnding Is
If
you're goiRJ to cca bact toIDrrow 4Rd deliberate
lS fllltber, ve'll
heit
that,
~l;.Se
ytU'lI
haY'll
l' W1Ul tlDnOll _.
lXtCortunalely Oily
OO!
day -
11 but )'OII'U have until tOo1Orrov to still
~e1op
J' that opinion.
JJ
A1.Dt1tWl KIIiKS: A.1d
then ..
;0
actually this is
ltY
last lasl
~lion
-- IIMt
if
11
lie
don't fini5h deliberltlr:q In the tva days?
12
MR. ROTH: The
onl}
le9.J:l
13 requirelrent Is that. decIsion
be
1l00e by the
24 29th.
"
17
Depo Court Reporting SetVice (63U)
983-00JU
C18540
UCYFM005101
Electronic Filing - Received, Clerk's Office, October 7, 2008
LandNl Hearing
M>y 23, 2007
25
•
n
AL£:t:OON MJNNS: 119ft/! with
23 Aldeman Spears, that if
~
sat here for 140
]I
hours, to U_it us to ten Ilinutcs 001I, I CII(!<Jn,
I
""TOR lJIW); Itas thdt IIlUOO
1
s«:oaded
to SUspend the IlIles? Old I have
i --
J
AUV.M.I.lI!llMIS: second.
4
KAroR
JlCRl):
O~y.
CAn
'o'e
!lave a
S roll call vote 011 that
Dlle?
,
ALlOIWl snMS: Could
lie
hill/!:
7 discussion?
MS. PICfDUl(;: Bescc.
~
BESCO:
!fay.
KS. PICfiERIIIG: Leslie.
ALDE'PIWI USLIE: Aye.
1'5. PICJ(!\R1H(j: Golinski.
(lIS PIcmullG: Golillsti.
1
ALtIlPWJt
OOl.llC5IJ:
Aye.
J
!fi
PIC11.!UllG: Ik!rdl!!ich.
f
AI.IEIIWt mmuOl: May.
s
ALlEtIAN MIINS: Nay.
6
!6 PIrn:RI1lG: Plocher.
1
~
PLOCHER:
!lay.
,
MS. PICmUItG: Spears •
J
ALIEItWl SPCARS: Nay.
JO
,"",fOR BORD: Can I entert.lin another
II lOtion then?
11
ALMIINJt SPEARS: [would We to
[J uu, a lOtion that we lillil our - each aldec.ln
If
to speak 20 r..inutes.
IS
N.l."mWt
KIIftiS:
5eccOO.
J'
It'roR
IUl.D:
Any
di5CllSSion~
J1
(110 respcwel
J.
1"A'tOI\ IllJR!>:
ObIy. 11011 call 'IOte,
lJ
pIN~.
"
"
21
"
"
""'COR llURD: DUOJuioo, sure.
,
A1Jl€1lIWl SPEARS:
Does
it
""ve to
be
J(l IiJlited to
tM
lllnutes pee
pet~?
/I
H.J.YOR 6URD:
MO\I long do >'OU want to
"
IJ
"
ALlER!'Wf SnJ.RS: I'U bE here IS
long is it td:es. After sitting here as :&:lny
J) hoots as
I
Iuve,
I _lj
Uke to uybe U<I!
l' lClIlqer than len alllltes it possible.
11
~JlWJI
1IIKtf):
ntis is our - this
It
is not. I City Co\:ncll,
:lO -
"
MA'fOR BUIO: Yes, it 1s. Yn, it
N
is. Does anybcXl/loIo1nt to
go beyoDd ten lIinutes
21 each?
"
I
,l.Ll-.:1fWl OOLntSlI: Aye.
1
MS. PICIElIDKi: 1erderidl.
J
~ Il!lRWUQi~
Aye.
,
f6.
ncmu.:;:
)bans.
,
AL!1llKAN KlKNS: Aye.
,
ItS.
PI~:
Plocber.
1
ALDmWf PLOCHER: Aye.
a
!'!j, PICr.ER.IMG: SpellS.
J
ALDEPWJI SPEARS: Aye.
]0
MS. prCI\EIUHG: SUtclHf.
II
ALllElIJolAN SUTCLH'F: Aye.
11
!'!AIOR BUM:
All right. Then yO'J
IJ
eadl have 20 &inutes .nd l1len a two-.inute
It
!dJutL1l, so we lIill start
with
Alder.iln
U
lfe:rderich.
"
~
mot.ll.ICII: ktlially
if
I
17 coa1d pas3 aoo Nte a
CXXlD!llt
at a later tie, I
J' IIOIJ.1d awrte:.Llu thoIt.
lJ
M'tOI\ &!PD: I don't bel1l!Ve OU1
10
~le.s
.1Iov you to do Unto leu can't pass ".:1
11
qtt
Un! rille bact clCCOrdill9 to OO! rules.
11
fI],[J;1f1t\H
WEIUlf'.PJCII: I'd like to
23 Il'Io!ke a Illltion
then at this point lhat
\fl!
waive
24 the
=ule.~
in oIdet of CO'Xlent gi ven by the Ci ty
1OI\'Of1 BUIUl:
Iio,
that 'IIOuldn't be
MS. PIOl:iUIiG: SJtcliff.
~
&lTCLIFF: May.
MS. PIClU.JU!iG: IIesco.
ALlt"PW.N BESro:
Aye.
MS, PICJlEJlING: Leslie,
ALOl!RHAN LESLIE:
Hay.
ALllERM!IN SPt:ARS:
I would recCft'll!oo
20 Ibitlutes, am
lr
lie
rp
under, God bless us alL
~YO\I.
BlJRI):
Okay.
So we lull uke
• vote on the origin.1 --
ALl£~)Jl
PL(KJ-D\: Are:
\It
voting for
u.e
ten IUnutu or tile 20 linute:s IS this?
~roR
8IJRD:
110,
~tio:l
t'fl
the noor
is tor the ten
ailUltt.
I th4t •• I "OUld - I don't know
if
I'.going to
1 be tore thin ten.
If
SOIleCIl! does, «lre power to
J tta.
,
KIr.'tOI\ iICRD:
1f!!1l, pick
~
IlUIIber.
) Ve have to -
1ft
have Nles that
V!
llave to
, fo11011,
~nd
follow.
7
AllEJW.lI GtlLIHSlII:
S'JSPefld
the
a rules.
,
ID good.
1I
1I
"
"
"
"
"
If
"
"
"
21
"
"
Depo
Court
Reporting
SOlVie.
(630)
98~0030
C18542
UCYFM005103
Electronic Filing - Received, Clerk's Office, October 7, 2008
LandfiR
I-.ng
Mly 23, 2007
I delibetatt on whal we aU um Qf -- beause
1 it's - )'OC kocv, it's vitMn the sa. ballpart I
J think.
~'re
here al'd that thr:re
Is
a lot of
f
traffic io Yorkville .nd thert
u •
lot of
I
YOO
.) kDow, traftic going through doImtOllr., 10Itlat does
, thilt
all that IIttn. Could we discuss it? Tl14t
1
s
1 what delibention is, correct?
,
MAYOR BlIRO:
'tes.
J
ALJf'J&N HUJlNS:
So do we qo each
10
criteria by one
oc
whoever wants to plck one,
11
llLat-~
12
/iAYOR BOllO: You hdn a certain
tile
J] liJIit to di!lCU:'!s vlLattver )'OJ "ant.
If
ALXIlWJl
!tl1HS: 8Jt th.t's DOt
13 deliheratims, rigllt? 11'.<It'5 llhat 1 tllcught
11
ddiberalluns 13, we diWol" it lite at a
17 Ca:ai ttee
tf
the Ih:ll e.
,.
19lY011 IlURO: No, this is
~.
JJ
A1ll£IKV M.!lfI;S:
Ttwt's not
10 deliberatulIIs?
11
",,'(OR BORD: 'nilS il like at a
12 teq.llU City COUncil reetinq and you can pick
13 anythifll] anybody
s~ys
alld have M Oll'JOftullity to
24
qive ycur opinion of
1l if
it's
lbf[ertn~
frOll
"
I
vhat ther said, or
if
you
~nt
to
td:I
SOItthinq
1 to it or further the disl:US.Sion,
but --
J
ALCI£ll»WI
l'lIIIiS:
So theft we'Ie not
f
dl!libl'ratinq, we'Ie jut -
j
K\roR IlIRD: Well, \'OUt te
, deliberating,
yo~
ere co:unq '" with" decision.
7 lou -- several of you Ildven't aadl!" decision
, yet, several of the other alderJlen
appear
to ha..,e
, already wde a detee-ination ha.wd on their
Olom
jl1
research .loci informt:'on ttey
haye
qatlen,
so if
lJ
you're 5tHl deliberating, lhen you h.lve the
12
o~rt~ity
to ronlinue diSCU!sil19 it.
IJ
Al.t!P:1M
KII!NS:
\feU, I 1IWl, I
If
lIi1l1t to read these
~O
pages
Ill!
qat today because
U thece
m~t
be 30Etllinq in there
thI:
W'Jld, JOU
'6" know,
sway you one way
or the other because
11 sllJlP03edly those ue
th!
U!Jl!ru, right,
~
have
/I
people
nllVe
done this tefore. Li'te Larry
JJ Clark, 30 hearings, he's get 4C
paqes
to read
'" through of wtwt he
~id.
1J
M't'OR!llJIU): Well, the only ttling I
21 could say to
}'OIl
is
is
tNt you need to have a
23 little confidence in your
0'","
cpinioos. You sat
2f ttu:ough 140
Ilours -
"
I
IApplau.se1
2
1lA'fCf. BUPD: - of infoCNUon.
J
ExaJse~,
pluse. Please don't --
f
~
tml!S:
It's li\e" cltCUS.
j
nus is not delibuatiollS.
'"
IW'OI\
BUIiD:
PIN~e,
let's not clap.
1 Ilut
you
need to have, after
all
of this tine,
a
SOlIe
Idea
~f
hopefully an opinion, and
~upplelll!nt
J it with the input fcoca - that you received
lD
today, but I would
hope
that you are not at the
11 point IIhere vou're totally uro:esclvoo olbout the
12 issues and you are waiting to be directed
by
our
lJ
!lpl!:rts.
II
A1.Ll£JtP.N I(OOIS: 1'.
nat saying
I
aa
z) waiting to be directed by an)bldy,
but I'.
saying
U
~
tpt a tt:ou.san::I pagu of teslizillY w're
17
s~
to take 'nto our CO:'ISideratlo!l.
We
need
I' to read that first.
a
K\fOR IlUPD: AbsoIJtl!ly. Well, this
10
is lilWlenenUI inforution that -
11
AL:tPW.N
l'1ltl~:
k;
all the other
11 lnlotmdtion lrem re9ident.9 and everytMng e1ge
13 that lias liul:nHted in paper, lie have to read all
14
of
that.
"
1
Wr.YC* BllRD:
aJt yoll
also realite
2 that we Ivve to
Cl*!
to a decisiai by
Kay
29th.
J
AlD!It4M
1tIIIKS:
hglll.
1h.It's six
~
days £loa now.
)
Wr.l'OR!IllRD:
An!-
,
ALalftWi 1tMiS: [Q
I
have to decide
1
toni9ht?
I ..
an, there Is sil da,.,.
,
~YOIl
BUIlD:
No,
III"
don't
Ilaye :0
J decide tonight.
Jq
ALOI:l:mo\tl !'I\!llNS: Yl.>II
want to
00 this
JI
leqally and )'Ou ltant to do --
12
MAYOR auRD:
I
tllOfl
personally, I
lJ
don't knov abut ttl' rest o[ you,
but
I cert"inly
if
oon't
llaflt
to mld
ttl~,
off lDItil Hay 18th and
III"
l)
hue lightning s!.Cite a cwple of you or
" SORthillg and we don't qet a vote
I really
U don'l ""':It to hold tllls off UIItJ.1 the lut
" aillJ.ll', so --
It
AUtPl"J./t NJX!(5:
&It
we
Me
voting
1G
en the 29th, riqht, you said?
11
MAJOR Ul1l: Ilo. We are
votitlfl
11 ttQlrTOW night. The way it', set up, we are
13 discussing tOCKlrrow night and
\tE!
will have a
Z~
resolution COIle in tomrrow and you will
h~ve
an
'"
97
Depo
Court
Reporting
Setvice (630) 983-0030
C18560
UCYFM005121
Electronic Filing - Received, Clerk's Office, October 7, 2008
LandfiR
Heari~
Mly 23,
2007
opportunity to discus.s the re$,lution that rill
l
be laId 0., the table and go fOMrd
with
tlIat,
l jllSt lite in , /IOrNl City Co.ulcil
~ting
vbere
t
you holve fHOluUOllS to discuss and
if )'OlI
don't
S
lite one of the criteria that's discussed that's
, there, then you en dlsalu it, but tNt's the
7 way'll! an rovlnQ fUCVled, so then
III! 9ft
this
, done in
it tj.1y
unner. There is no c!lant;(! that
J
smethJlX] could lIappen -
10
ALOERHAN MJIINS: '!'hen--
II
M,l,YOR IlUJlD: -
one
~y
or
the
12 other, bJt by this
t.UIe
aUer 9Oill9 th(lugh 411
JJ of this hearing, 140 days of hNrinqs ud 30 days
It
of collectIng
inIot'D:I~on.
you'vc !lad
'II
15 opportunity to listen to 0111 of thb, UJd I
Ii
think -- I Wr:t that W: [Mil, ooll't h.:Ive loo
17 uny surprises in what
w !law
bttll
prt~ented
by
I' oar
I!lpert
o:ar.sel,
(!b'l't
knOll
il you
Uf
" sllrpri:sed by it, but I'lioot, so I lhink
lie
a
should
be
able to
llIO'.'e (onr<lrd.
.ll
ALrellWl
MJIDiS:
we sald Tuesday we
22 are
~eting,
Wednesday. lIobody sud Ife \IItrt
23 g(}ing to vote Thursday. Like AlderlMn Golinski
If
~id--
I
M'tOR Ill1RD: Absolutdy.
2
AILlEftWI NJIIKS: -
if
we Q:lll'l do
J this propedr MId
\lit
Ion it
OIl
'PPMI, there's
4 still going to
be
a hn:Hill there, a..1d
~
went
s t:hrou9-i.ll this
foe
nothing.
,
""fOil,
8lI~:
That', true.
1
~
Ml!OIS: $t)
i£
n're going
, to Yote 00, we lunt to do it the
f1~t
way.
t
""YOlIIlURO: Ab301Jtdy. aut lite
10
you said, we're 901ng to have somethinq dufted,
/l
YO'J can read It over. 1 don't see any problem, I
12 don't blOII
if
the attorney wants to dilOJ$S
thi~,
IJ wt -
If
ALlEPKVI MJIfH5: "ell,
if
we CO'J1d
IS read this Wioll! birder by tt'G)[[lJV at rirjlt
H
o'cloct, that's t.hr
~ticn.
17
fM.'f(lR!l1!lD:
Lite
I said, I don't
I'
brJw
how rast)OJ reild, but they di<il't hne to
" "'ait
until the 21st to send this to us either, 30
l(J
thint about ••
21
ALCtP1Wll«lN!lS: Neither did
n
Hr. Clart or Hr. Roth or Hr. Price.
71
MArO!~
ll!IRO:
No, tiley didn't have to
21 do that.
So
perh~p:'I
we can just uso our 0111\
'"
l judqilent and th:.ao through thi, .:md CXJCe
lip
with
1 a solution, but ve d!!initely .rm't going to let
J
the-
control the ?rocus, so-
t
ALCrJl,IrI'.All M1.tIS:
Theu w!ly
did
W pay
) theII if
didn't need -
iii!
:shouldn't
have
paid
'thell. 1lI11 "" Hr. Price here?
1
MroI! 1IURIl:
IIell,
~IJ
tl'lO\ll, I
, wasn't in the .ajority, SO
)W
811 have to
J discuss that, but
~~
10
AIDEPw.N SPi:A/lS: I'd 11 te to sta te
lJ
that the City didn't pay
the-.
the awlicanl paid
12
them,
and I IIOUld also really, really -
J]
K'lYOfl. BURD:
Hease don'l -
JI
,IJ..I,EFJW' SPEARS:
I lIIIlUld
be
U interuted
in
joining thi, landfill circuit that
" tUIIl'U
fraa ClXDIlIity to ca:aJnity
bKallSt
they
11
are such a ti<jht.Wt
q[~
awarellUy, arxl tbey
"
ICe mvi.nq on.
H
,.~
BilfD: A!.deQln Spears,
~
1~
don't want to get into that, iliat', not UI'lCkr
11
::tisCllssion tonlqht, please. Dby?
12
,IJ,l)[PlW/
rt1III'lS: I'd like to tlllt
11
~bout
the traffic cri:eria, .nd a couple L.!JIles I
11 read
it
t'lele that [rOlll our experts
-~
and I oon't
'"
J blow
if
it wn
[fOIII
Atlorneys P.eth, Prioo
o~
2 Clark, blt one or
Un, tlilO
of t'Jel actually,
J sUd .-
lQybe
III lhcee did - that when the
t
!ldaLtin bridge gets done
Sl:Eday
that t1ley lI@re
) rea..trdlTICJ rOlJunq the traHic
~r
the
, t:1ct..ain bridge, and to
Ill!
that
"IOIl1d
be, you
1
tlXllf, kiJd
of you are puttillj all thh ledUc on
• a nice quiet coonLty road, so
is
that better or
, lo'Orse than
lJli~
down Routc 471
10
I don't know if anybody else
!J read that in there, but 1
Imow
at h'ast tv{) or
J1
tile
three Efltioned that. My COhIeIlts or no?
J]
ALO!flIIAH
SP&ARS:
I wuld
Lite to
It
comeot on the traffic situatioo.
Pi~st
of all,
IS tbat could be a
IJOOd
proposal, b.Jt \IOlI1d it be
in
" OtIr lifetile that that
road
would ewr 90
11
t1Irolql?
Jt
How 1009 baR we been wltlnq
" [or NolIte 47 to
be
wIdened or just iJproved, any
iO
01 the state roads'
2J
.a.nd aho at ene tiE
the
n
COlM'Icil considered sending - or !laving seedler
23 Road go through dCroSS
SOllIe
!I!SldentIal areas and
If thdt was dIso proposed; that never lIliIteridized.
'"
101
[}epo
COUrt
Reporting Service (630) 983-0030
C18561
UCYFM005122
Electronic Filing - Received, Clerk's Office, October 7, 2008
CERTIFICATE OF SERVICE
I, Patti Racky, a non-attorney. certify that I caused a copy of the foregoing Notice
of Filing and United City ofYork\'iIIe'sReply in Support of Its Motion in Limine #
2
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 October 7. 2008.
lsi
Patti Racki
(x)
Under penalties as provided
by
law pursuant to ILL. REV. STAT.
CHAP. 110 - SEC 1.109, I cenify Ihallhc statements set forth
herein are true and correct.
Electronic Filing - Received, Clerk's Office, October 7, 2008
SERVICE LIST
Bradley P. Halloran
Hearing Officer
l11inois 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
gcorge@muelleranderson.com
Charles I-Ielsten
Hinshaw
&
Culbertson. LLP
100 Park A venue
P.O. Box 1389
Rockford, 1llinois 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's Attorney
Kendall County Courthouse
807 John Street
Yorkville.1llinois 60560
eweis@co.kendaJI.il.us
James
1. Knippen, II
Walsh, Knippen, Knight
&
Pollock
2150 Manchester Road
Suite 200
Wheaton,
IL 60187
jim@wkkplaw.com
heill her
lJ
\\
l-.. kpl,l\\ XOIll
James
B.
Harvey
McKeown, Fitzgerald, Zollner,
Buck, Hutchison
&
Ruttle
24255 Glenwood Avenue
Joliet,IL 60435
jim@mckeownJawfiml.com
Electronic Filing - Received, Clerk's Office, October 7, 2008