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 FILING
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's Response to Fox Moraine's Motion to Compel Production
of Transcripts
and Videos.
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
Gmueller21@sbcgloba1.net
Respectfully submitted,
On
behalf of FOX MORAlNE, LLC
lsi
George Mueller
George Mueller
One
of Us Attorneys
This document utilized 100% recycled paper products.
70535423vl 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 FOX MORAINE'S
MOTION TO COMPEL PRODUCTION OF TRANSCRIPTS AND VIDEOS
NOW COMES
Fox Moraine. LLC by its attorneys, Charles Helsten and George
Mueller, and for its reply
to Yorkville's Response to Fox Moraine's Motion to Compel
Production of Transcripts and Videos (incorrectly designated by Yorkville as documents
and video), states as follows:
1.
Yorkville grossly misstates the thrust of Fox Moraine's motion. Yorkville's
response in Paragraph 3 suggests that Fox Moraine's allegations are that some
portions
of some meetings were not transcribed, that two videos of meetings are not
available and that some of the transcripts Fox Moraine received were simply not what it
expected. This completely misstates the production request at issue, and the motion
with regard to Yorkville's wrongful failure to comply with the same. Exhibit
0
attached to
Fox Moraine's motion is the key exhibit. This demonstrates that videos for four (4) City
Councilor Plan Commission meetings
(9/25/06, 10/17106, 216/07
and
2/13/07)
were
missing. For all of these meetings, except for the Plan Commission meeting of
September 25, 2006, the transcripts were also missing. In addition, transcripts were
missing for another six (6) meetings for which videos had at least been produced.
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Electronic Filing - Received, Clerk's Office, Octoaber 7, 2008
2.
Yorkville's response suggested that three (3) of the missing transcripts
had previously been produced, but those transcripts were for public hearings unrelated
to Fox Moraine matters. However, is not that these transcripts were not what Fox
Moraine "expected", it is that these transcripts were not responsive to the production
request made.
3.
Yorkville asserts in Paragraph 4 of its response that, "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." Since all city
council meetings are public meetings (With the limited exception of executive sessions),
Yorkville has then admitted Fox Moraine's point. Fox Moraine continues to seek
transcripts of all the public city council meetings during the period for which they were
requested, and, in light of Yorkville's admission, there is no excuse for failure to produce
the same.
4.
The City offers as a partial excuse that it has produced thousands of
pages of material.
However, the production of some material, no matter how
voluminous that production, does not justify the failure to produce other available and
relevant material. Substantial compliance ought not to be the standard when full
compliance is easily attainable.
5.
The footnoted item on page 2 of Yorkville's' response, suggesting that Fox
Moraine has an "alternate source" for transcripts of meetings, deserves some comment.
That "alternate source" is the City of Yorkville's website, where transcripts of the public
hearings conducted before city council meetings (but not the public meetings
themselves) are attached to the minutes of the city council meetings. These public
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hearings are obviously different than the meetings themselves, but for three (3) of the
public meetings, Yorkville has nonetheless attempted to substitute minutes of the brief
public hearings as being responsive.
6.
Yorkville incorrectly responds that there are videos missing for only two (2)
meetings. In fact, there are videos missing for four (4) meetings. Bart Olson's affidavit
indicating that there are no invoices for videotaping the meetings of September 25,
2006 and February 13, 2007, is effectively an admission that there are invoices for the
two (2) other missing meetings, October 17, 2006 and February 6,2007. Yorkville has
provided no explanation as to why these videos are missing and why they have not
been produced. Since transcripts of the meetings for these dates have not also been
produced, these become critically important meetings. In addition, Yorkville's response
on September 28, 2008, in Mr. Hopp's letter to attorney Mueller: 1) provides no support
for the allegation that the October 17, 2006 meeting was not videotaped, and 2) does
not even allege that the February 6,2007 meeting was not videotaped. (see Ex. E)
7.
Minutes of the February 6, 2007 meeting of the committee of the whole of
the city council indicate that the mayor reported on annexation and zoning of the Fox
Moraine parcel, with the following being the relevant potion of the minutes of that
meeting. ''This is a reconsideration of the annexation. The vacation of the road should
be taken out of the agreement and not postponed. The annexation and zoning of the
property without the vacating of the road will move on to city council for consideration."
Discussion regarding this item was lengthy and heated. Attendees at the meeting
included the leadership of FOGY, aldermanic candidate, Robyn Sutcliffe, and Atty.
Michael Blazer on behalf of Kendall County. Fox Moraine has alleged that the conduct
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and content of meetings such as this are a major reason why it was unable to later
receive a fundamentally fair decision on the Siting Application, in that meetings like this
helped contribute to the predisposition and bias which caused city council members to
make a political rather than an adjudicatory decision on the Application. Similarly, the
October 17, 2006 meeting of the committee of the whole contained extensive discussion
of the issue of whether Sleepy Hollow Road should be vacated. The annexation
agreement previously entered into between Fox Moraine and Yorkville required
Yorkville to vacate the portion of Sleepy Hollow road that ran through the proposed
landfill site, and landfill opponents, including Aldermen Burd and Spears, quickly seized
upon this as a way of possibly preventing the landfill application from even being filed.
8.
Yorkville's response suggests without directly saying that the materials
requested are of marginal relevance. If that is true, then it becomes even more difficult
to understand why the City of Yorkville would have actually billed Fox Moraine for the
services of Marlys Young, who is apparently the minute taker at city council meetings.
Obviously the fact that the City thought that Ms. Young's services were reimbursable
under the Host Agreement validates the fact that the date for which her services were
billed, concerned itself almost exclusively with matters related to the Fox Moraine landfill
proposal.
For the foregoing reasons, Fox Moraine respectfully asks that the Motion to
Compel Production of Transcripts and Videos be granted.
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70577016v2 863858 62168
Electronic Filing - Received, Clerk's Office, Octoaber 7, 2008
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
Gmueller21@sbcglobal.net
Respectfully submitted,
On behalf
of FOX MORAINE, LLC
lsi
George Mueller
George Mueller
One
of Its Attorneys
This document utilized
100Wa
recycled paper products.
70577016v2 863S58 62168
Electronic Filing - Received, Clerk's Office, Octoaber 7, 2008
AFFIDAVIT OF SERVICE
The undersigned, pursuant to the provisions ofSection 1-109 of the Illinois Code ofCivil
Procedure, hereby under penalty ofpeIjury 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.ilusl
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,
II..,
60601
Via
E-Mail- mblazer@enviroatty.com
Via
E-Mail- michae1.roth@icemiller.com
Michael Blazer
Michael Roth
Jeep & Blazer
Interim City Attorney
24 N. Hillside Avenue, Suite A
800 Game
Fann Road
Hillside,
II..,
60162
Yorkville, Illinois 60560
Via E-Mail - gmuellerZl@sbcglobalnet
Via
E-Mail- eweis@co.kendall.il.us
George Mueller
Eric C. Weiss
Mueller
Anderson, P.C.
Kendall County
State'sAttorney
609 Etna Road
Kendall County Courthouse
Ottawa,
LL
61350
807 John Street
Yorkville,IL 60560
Via E-mail.
HINSHAW
&
CULBERTSON LLP
100 Park Avenue
P.O. Box 1389
Rockford,IL 61105-1389
(815) 490-4900
70535408v! 863858 62168
Electronic Filing - Received, Clerk's Office, Octoaber 7, 2008
