BEFORE TIlE ILLINOIS POLLUTION CONTROL BOARD
FOX MORAlNE, LLC,
Petitioner,
v.
UNITED CITY OF YORKVILLE, CITY
COUNCIL,
Respondent.
l
l
)
l
l
PCB No. PCB 07.146
NOTICE
OF FILING
TO:
All coWlSel of Record (see attached Service List)
Please take notice that on April 24, 2009, the undersigned filed with the Illinois Pollution
Control Board, 100 West Randolph Street, Chicago, illinois 60601, Amended Motion
of
Petitioner, Fox Moraine, LLC for
a
Finding
That
Valerie Burd Was Not
a
Ctedible Witness
Dated:
April 24, 2009
Charles F. Helsten
Hinshaw
&
Culbertson LLP
100 Park Avenue
P.O. Box
1389
Rockford, IL 61105-1389
815-490-4900
Respectfully submitted,
On
behalf of FOX MORAINE, LLC
Is!
Charles F. Helsten
One
ofIts Attorneys
70535423vl 863858 62168
Electronic Filing - Received, Clerk's Office, April 24, 2009
BEFORE TRE ILLINOIS POLLUTION CONTROL BOARD
FOX MORAJNE, LLC,
Petitioner,
v.
UNITED CITY OF YORKVILLE,
CIrY COUNCIL,
Respondent.
)
)
)
)
)
)
)
)
)
PCB 07.146
NOW COMES
FOX MORAJNE, LLC ("Petitioner") by its attorneys, Charles F.
Helsten and George Mueller, and moves for a finding
by the Hearing Officer that Valerie Burd
was not a credible wilness, and,
in
support thereof, states as follows:
I.
A public hearing was held herein on April, 21, 22 and 23, 2009, on the issue of
whether or not the proceedings before the Yorkville City Couocil were fundamentally fair.
Valerie Burd, mayor
of Yorkville, testified at the hearing.
2.
The Hearing Officer in this type of hearing is not required to make a finding
regarding the credibility
of each testifying witness, but typically does make such a finding.
See
e.g., Forest Preserve Dist. of DuPage County, nlinois v, Mineral and Land Resources,
PCB 96-
084 (Nov. 6, 1987) (noting the importance of credibility determinations by the Hearing Officer
who observes the testimony).
3.
In
this case, the reconI demonstrates conclusively that Valerie Burd was not a
credible witness.
In
the absence of a complete transcript
of the
instant
hearing~
a more
comprehensive motion is not possible, however, there is more than ample evidence to conclude
that Ms. Burd was not credible.
70sm61vl 863858 62168
Electronic Filing - Received, Clerk's Office, April 24, 2009
4.
Fox Moraine
has
contended, as one of its principal, threshold fundamental
fairness arguments, that Valerie Bnrd (an aldennan at all relevant times berein until May
8, 2007
when she was sworn in as mayor) was elected mayor on
April 17,
2007, after having run as an
anti-landfill candidate, and that sbe prejudged the merits of the case along with others controlled
and influenced by her, and that she led a calculated, deliberate, collaborative effort
to wrongfully
deny the siting application.
5.
Ms. Burd testified that Ron Panish and Todd Milliron were members of her
campaign committee, and that they served in that capacity until her election as mayor on April
17, 2007. She testified unequivocally and several times that she never knew that either Panish or
Milliron were landfill opponents. The following are excerpts
of statements made publicly by
Panish
and Milliron at City Council meetings or landfill public hearings, all of which Bnrd
attended
as a City alderman. All the transcripts eited herein were admitted into evidence in the
instant hearing, with the exception
of the transcript of the landfill application public bearing of
3/26/07,
which was already in evidence as part of the record filed by the City.
RonPanish
9/26106 p.
85,
lines
16-8: There has never been anything done to help this or aoy of US out
on that road
to stop this landfill from going.
9/26/06 p.200, lines
9-13: I do know this. I'm against anything that the attorney for the
landfill is
for, so
I
guess he helped me make my decision. That is pretty much my
determining
factor.
10/24/06p.47. lines 20-24:
!fyou want to see a lawsuit, you
haven~
seen a lawsuit until
you see, when you start messing up the water table for the whole City. Because,
gentlemen, we get our water, and you also get your water there.
10124/06
p. 50, lines 19-24: ... we don't need a landfill out there. And, if anything, we
most certainly don't need the water contaminated. I can tell you right up front, I for one,
when you contaminate mine, you've never seen such a lawsuit as you are going to get
and I live right down the hill from you.
2
70597761vi
863858
62168
Electronic Filing - Received, Clerk's Office, April 24, 2009
10124106 p.72, lines
14-19: So we already know what kind of responsibility they are
going to take ....
I
got news for you,
it
won't be their nuclear waste and it won't be their
water that they messed up either.
It
will be ours. But you know what, you all are going
to have to answer for that because I am going to remind you every day.
10130106 p.l0l,
lines
16-18: Would you like to know that the Federal Government
says 82 percent of them are leaking and you are an expert and don't know that?
11114106 p.13,
lines
13-17: The next concern is that! wonder ifthe City of Yorkville
would also consider the
foct that I know that you have to be doing it for money, for funds.
That's the only advantage that there could be,
11130106 p.
24,
lines
4-8: I have said this many times. I don't waot either landfill out
there, but I know the County
was turoed down, they turned down the landfill from being
out there.
11130106 p.175,
lines
9-14: [TJbis gentlemao
has
mishaodled the truth before.
It
scares
me that
he is going to be the one that says, okay, tbis is what the bond should be. I
wouldn'l trust him to take my daughter to school, much less tell me what the bond
should
be (referring to Fox Moraine Landfill design engineer Devin Moose).(ernphasis
added).
Todd Milliron
9/26/06 p.23, lines
2-24;
p.24, lines
1-24;
p.25, lines
1-15: We're only here tonight
because
Art Prochaska and the City Staff decided to offer very lucrative zoning candy to
two adjoining property owners. This chain of property owners I.ada to the Hammao
landfilJ property. How this deal was put together behind closed doors without the normal
fair debate and a normal hearing process time tables should have all
of you asking
questions
of why tbis vote is being called on such short notice.
Why is the City trying
to slide all these annexations and zoning through nuder the
rug on a rarorod timetable? It's not fair
to the citizens of Yorkville or this County. You
are -
as a CQuncil member said, this is a fair process, but preferential treatment
has
been
given
to these three property owners that are here tonight, and you are naIve aod
nainformed about the true motive behind the end game of annexing and zoning all these
four properties.
This is supposed
to be a democracy with rules and procednres for us all, and all
have been broken in tbis case. From the date
of the public notice to tbis vote tonight haa
only been 19 days. This is not an emergency annexation where a great public need is
being addressed
for the good of all citizens.
The only erucrgcocy is Mr. Hamann
has
lost out in the bidiling competition of the
current County landfill site process. There is a need
for a landfill-landfill site
in
this
3
70$97761vl 863858 62168
Electronic Filing - Received, Clerk's Office, April 24, 2009
County, but
at present
there is
only need
for one and only one, not two. We don\t need
one in the City and tbe County.
9/26/06 p.198, lines
17-21: So this is the end game and the truth is here. We're
connecting all these properties one-by-one to get out here> and now we're discussing a
landfill when that wasn't on the agenda.
10/10/06,p.
22.
lines
11-21: I am here tonight to plead not to vIW.te Sleepy Hollow
Road. Many on the City Council think this
is a foregone conclusion and it's inevitable
that
Mr. Hamman is going to site his landfill.
It
is not. Sioepy Hollow Road is a maior
incumbrance on that 220 acre proposed landfill site. I would like
to have you look at your
host agreement and the topographical
map that is the last page of that host agreement and
you will
see that that road virtually runs right down the middle of that landfill site. It is a
lock on that site.
10/10106
p.
23.
lines
14-15: Why are you helping him with the dump that nobody in this
town
or
county
wants?
10/10/06 p.
24.
lines
9-23: [YJou'reproposing to take it away from us and give it to Mr.
Hamman so he can reap substantial financial benefit at the expense of all of us where our
home values are going to be decreasing, devalued. We are going to have increased truck
traffic
On already overburdened roads and there is going to be 12 months of stink a
year ..
.!
want you to think about this road as you will be doing irreparable harm to this
community. You are elected to protect and serve. You are supposed to serve all
of us,
not
the one person with the most money in this County.
10/24/06
p.39,
lines 19-20; p. 40. lines
1- 8: This town does not want this garbage
dump and you choose to ignore tho very people you are elected to serve. You might as
well change the name of this town right now to the United City of Rot dale ... Agsin, Joe
Besco and you gentiemeo koep finding a way
to help Mr. Hamman get his landfill. Why?
Why
are you helping him? Why won't you listen to us?
10/24/06 p. 40, lines
12.24: I am tired of being ignored. Your tiroe to pay lor your bad
decisions cannot come soon enough .... We don't want Fox Moraine to get to the
landfill fmi'h line, siting finish line flnt; yet, you persist
In
making that a reallty,
which
is a nightmare to
aU
of us. Slop it and stop it now. (emphasis added)
10/30/06 p.
146.
line
11-14: rm trying to come to a calm demeanor tonight. It's a little
hard for me to do that because I am so passionate about this issue.
10/30/06 p.
146.
line
22 -
p.
147.
line
5: I would like to thank Rose and Ms. Burd for at
least giving the opportunity for the City Council to vote on that. But it looks like this is
another opportunity
for you
all
to limit the debate to try to hold the decent and forget
about us who all are sooner or later,
if we
live
in
the
City~
are going to have an
opportunity to elect you guys on April 17th.
4
70597761vl 863858 62168
Electronic Filing - Received, Clerk's Office, April 24, 2009
11/14/06
p.
11,
lines
12-20:
If
you support this [referring to his proposal for a
referendum],
Fox Morain.e will not be allowed to file for siting application on December
1,2007,
as they indicated -- or 2006 as they bave indicated. I will put this process - it
will put this process on hold
fur six months until the April election. and maybe the County
will have
made their landfill decision in the County. I am under the opinion we only
need one landfill, not
two, and that would be one in the Couuty aod one in the City.
1123/07 p.75, lines
18-24;
p.76, lines
1-4: [reo picture in paper] Now, who do we see in
that picture? Look closely. One geotleroan has his arm around the other. Art, do you
recognize yourself in that picture? You look pretty cozy with the gentleroan that has hi.
arm around you. Could that gentleman be Don Hamman? Please note, you can see
both of our Mayor's hands
in
the picture, but only one of Mr. Hamman',. I am
wondering where Mr. Bamman's other hand is, and you the on the City Council
should, too. (emphasis added)
3/26107 p.61. lines 10-14:
Ih.ve seen Mr. Hanmum aod his Fox Moraine associates
holding court back by the Fox Moraine
model aod a couple of couocilmen were back
there being courted by Mr.
Hamman and his associates about the finer attributes of this
dump.
3/26/07 p.
65.
lines
3-16: These developments were unknowingly duped, along with the
Kendall County Forest Preserve, ioto participating in this landfill scheme back io April
of
2006. How these five developers - I will call them Ole Landfill 5 -- were suckered ioto •
24-million-dollar SSA that
made this scheme work just like dominoes ready to fall in
line.
It
was a very calculated and engineered scheme that ahows collusion and bias in the
early part of the spring of 2006. This decision to site the dump was made sometime in
late 2006 and April 2007.
3126/07 p.85, lines 17-20:
This is aU about greed and money. I don't know who
i,
greedier, OUf mayor, the City, or Mr. Hamman. No ODe here wants Mr. Hamman's
dump money. (emphasis added).
3/26/07
p.90
lines 4-10:
I feel like a Jew being told Auschwitz is a summer camp. I
had garbage storm troopers visit my home and take pidDres. I made a police report
of that encounter and
it
is on file with the County. These were no little guys. These were
300-pound paparazzi stonn troopers sent to intintidate me. (empbasis added)
3/26/07 p.90, lines 20-24, p.9I. lines
1-9: I refuse to be quiet. I am going to continue to
bring this deal to the light of day and expose the conspirators that are in the bed with Fox
Moraine. I reel Uke we'v.
all
been led to slaughter by a lying, Nazi mayor. This has all
been
very orchestrated and well-planned out.
It
is not fair. It shows bias aod collusion and
we~
the citizens, have not been heard, let alone represented by our city representatives
in
this whole sordid affair. I am continuing to lead the dump fighters ofth. YorkviDe
ghetto. We have nothing to
los •. (emphasis added).
5
70S97761vl 863858 62168
6.
When other witnesses were asked about Parrish and Milliron, none of them bad
any difficulty acknowledging that both Parrish and Milliron were vocal1andfill opponents
throughout the annexation
and siting hearing process.
In
defending the relevance of a line of
questioning with Mr. Parrish, one of the City attorneys even referred to the fact that Parrish was
speaking out agaiost the landfill at a meeting.
Ms. Burd was apparently so desperate to avoid the
inescapable inference that sbe prejudged the application and was biased against
Fox Moraine-
an inference that properly
flows from the fact that she surrounded herself and staffed her
campaign with vocallaodfill opponents - that she denied the undeniable, while testif'ying under
oath. Such conduct is
an insult to the oath.
7.
Additionally, Ms. Burd testified that she received no campaign conttibutions from
members of Friends ofGre.ter Yorkville (FOGY), the organized and incorporated landfill
opposition group. However, Ron Parrish testified that
he bad been an officer of FOGY and that
he mede numerous donations
to Burd's campaign, including two round ttip airplane ticlrets to
anywhere in the US to be used at a fund raising event.
8.
Ms. Burd also withheld the fact that Ed Sleezer, an opposition expert witness
called by FOGY (3/28/09 pages
6-89), was a member of her campaign committee. Ms. Burd
was asked a second time
if she had named all the members of that committee, and again she
failed to disclose Mr. Sleezer. Additionally, she failed to disclose her relationship with Mr.
Sleezer at any time during the siting hearing. Arden Plocher, a sitting alderman and another
member
of Ms. Burd's campaign cunnnittee, testified that he was certain that Sleezer was on
Burd's campaign committee.
6
70S97761v\ 863858 62168
9.
The
other members of Bur d's
campaign committee included Wally Werderich,
one of the founding members of FOGY, and the person who had drafted its articles of
incorporation.
In
his testimony, Werderich identified Plocher as another FOGY member.
10.
Although Ms. Burd indicated that she never opposed the landfill prior to the vote
on siting, it was amply evident even during the City Council meeting .. in late 2006 and early
2007, that Ms. Burd publicly aligned herself with the landfill opponents, for which she received
congratulatory kudos from landfill opponents during public meetings.
For example:
Transcript
of October 30, 2006,
Page
153,
line
7
to p.
154.
line
24 [slatement of Randy
Scott]:
I
also
aro
a citizen of Kendall County who did not get a single say in any of this because
of the annexation agreement ... Tonight is my chance to participate.
I
will do it less in
five minutes. Alderman Spears and Alderman Burd, I congratulate you. You deserve
a big round of applause. (Applause.) You are for the People. You are
by
the People.
You
are with the People. You are the People. Now, I'll tell you something. I kuow my
rights. I lost my rights. You have heard this before, but I'm sorry, I am going to say it
again.
I lost my rights being a citizen of the Coonty •.•. The point I am trying to make
here is Ron [Parrish) mentioned the other day -- my good friend, Ron - be
mentioned the other day that
we
need to do our bomework. Okay, Some or you are
doing your bomework. You are doing a lot
oC
it and you are doing it very good •
... Tbank God Cor Alderman Spears and Burd. (emphasis added).
11.
The falseoess
of Ms. Burd'. testhoony that she was not a landfill opponent prior
to the date
of the final vote is further illustrated by her owo statements at meetings. She proudly
armounced
on October 24, 2006 that she had "voted against every single annexation that was
leading up to this whole thing, all six
of them and then the four.
I
voted against every single one
of them ... " (Transcript of Oct. 24, 2006,
Page
168,
Line
23
-Page 169. Line
4)(emphasis
added).
12.
Further, Ms.
Burd's explanation of the June 15,2007 Wildman law fimt invoice
for services from April 27, 2007 through May 29, 2007
in the amount of over $94,000 (FM Ex.
16) is not as obviously, but otherwise
just as equally, incredible. The extensive and focused
7
70597761v\ 863858 62168
Electronic Filing - Received, Clerk's Office, April 24, 2009
efforts
of three
Wildman lawyers detailed on thls invoice prior even to Bmd's installation as
mayor completely belie her testimony that she did not direct them to do any work, let alone the
specific work detailed
in
the invoice. Moreover, the immediate focus by the Wildman lawyers
on opposition evidence, and disconnection
of the
landftll territory from the City (something, of
course, that only becomes possible ifthere is a siting denial), leads invariably to the conclusion
that those lawyers received specific inStruCtiOIlS prior to April 27 (at a time when Burd had no
authority to issue such instructions). and that those instructions were to build a case for denial of
the application.
13.
In his comments on the record on May 23, 2007, during deliberations, Alderman
Munns made reference to recommendations from three lawyers. one
of them,
a memo from
Attorney Roth, being a recommendation for denial
(FM
Ex 18 p.59, lines 5-10). We know that
two oftho,e recommendations are the City expert staff report authored
by Attorney Price, aod
the Heuring Officer', report,
and that both of these reports recommended approval with
conditions. The third recommendation referred
to by Munns can only be the secret "Roth
Report" prepared by the Wildrnsn flnn.
14.
Alderman Besco testified that prior to Sep. 26, 2006, Burd was a promoter of
annexation and the possibility of a landfill (wanting the City and not the County to get the
tipping fees).
He noted that upon seeing the large crowd of opponents at the meeting on that
night (when the host agreement and annexation were
to be considered by the cOWlcil), she
immediately did a
100% turnaround in her view, and was thereafter hostile to annexation aod the
other pre-siting steps required
of Fox Moraine.
IS.
The matters on which Ms. Burd has obviously testified falsely, as set out in this
motion.
are not trivial or collateral. They go to the heart of her denial of bias and prejudgment,
8
70597761vl 863858 62168
Electronic Filing - Received, Clerk's Office, April 24, 2009
including her unequivocal testimony that she never expressed an anti-landfill opinion prior to the
uight
of the final vote. Accordingly her testimony that she was not biased and did not prejudge
the application is no more credible than the specific details
of her
testimony which have been
demonstrated to be unbelievable.
WHEREFORE, Petitioner respectfully prays that the Hearing Officer enter a finding that
the
testimony of Valerie Bnrd was not credible.
Dated:
April
24, 2009
Charles F. Helsten
Hinshaw
&
Culbertson UP
100 Park Avenue
P.O. Box 1389
Rockford, IL 611 05-1389
815-490-4900
George Mueller
Mueller Anderson,
P.C.
609 Etna Road
Ottawa,
IL 61350
815-431-1500
Respectfully submitted,
On behalf of Petitioner
lsi
Charles F. Helsten
One ofIts Attorneys
9
70591761vl 863858 62168
Electronic Filing - Received, Clerk's Office, April 24, 2009
AFFIDA vrr OF SERVICE
The undersigned, pursuant to the provisions of Section 1-109 of the Illinois Code of Civil
Procedure, hereby under penalty
of perjury under the laws of the United States of America,
certifies that on April
24, 2009, she served a copy of the foregoing upon:
Via E-Mail- hallorab@ipcb.state.il.usl
Bradley
P. Halloran
Hearing Officer
Illinois Pollutioo CootroJ Board
James
R.
Thompson Center
1000 W. Randolph St., Ste. 11-500
Chicago,IL 60601
Via E-Mail- jbarkoess@mornJaw.com
James
S. Harko.ss
Momkus McCluskey, LLC
1001 Warrenville Road, Suite 500
Lisle,
IL
60532
ViaE-mail.
HINSHAW
&
CULBERTSON LLP
100 Park Avenue
P.O. Box 1389
Rockfurd,IL 61105-1389
(815) 490-4900
Via E-Mail- dombrowski@wildman.com
Leo P. Dombrowski
Wildman, Harrold, Allen
&
Dixon
225 West Wacker
Dr.
Suite 3000
Chicago,IL 60606-1229
Via E-Mail- eweis@co.kendall.il.us
Eric
C. Weiss
Kendall County State's
Attorney
Kendall County Courthouse
807 Jobo Street
Yorkville,
IL
60560
70S3S40Bvl
863858 62168