BEFORE
TifE ILLINOIS POLLUTION CONTROL BOARD
E
C
E
V
E
D
CLERK’S
OFFICE
FOX MORAINE, LLC,
)
JUL
202009
Petitioner,
)
STATE
OF
ILLINOIS
Control
Board
)
PCB No. 07-146
UNITED CITY
OF YORKVILLE,
CITY
)
COUNCIL,
)
)
Respondent.
)
Notice of
Filin2
To:
All Counsel of
Record
(see
attached
service
list)
On July 17,
2009,
the undersigned filed with the Illinois Pollution Control Board, 100
W.
Randolph St., Chicago, IL, the Amicus Curiae Brief of Friends of Greater
Yorkville,
which
is
also served on you.
Respectfully submitted,
James
H.
Knippen, II
Adam C. Kruse
WALSH,
KNIPPEN, KNIGHT &
POLLOCK, CHARTERED
2150
Manchester Rd., Ste. 200
Wheaton, IL 60 187-2476
630-462-1980
GREATER
YORKVILLE
BEFORE
TifE
ILLINOIS
POLLUTION
CONTROL
BOARD
RCS
OFFICE
FOX
MORAiNE,
LLC,
)
-ILIL
2
U
2009
Petitioner,
)
POllUtior
STATE
OR
Contro
IL
v.
)
)
PCB
No.
07-146
UNITED
CITY
OF
YORKVILLE,
CITY
)
COUNCIL,
)
)
Respondent.
)
Amicus
Curiae
Brief
of Friends
of Greater
Yorkville
In
considering
the
decision
of a
municipality’s
governing
body
that
has
denied
a siting
application,
the plain
language
of
Section
40.1(a)
of
the Environmental
Protection
Act
allows
the
Pollution
Control
Board
to
consider
“the
fundamental
fairness
of
the procedures
used
by.
.
.
the
governing
body
of the
municipality
in
making
its
decision”
415
ILCS
5/40.1(a)
(emphasis
added).
The
case
law has
interpreted
this
to
mean
that,
“[i]n
a
local
siting
proceeding,
fundamental
fairness
incorporates
only
the
minimal
standards
of
procedural
due
process.”
Peoria
Disposal
Co.
v. PCB,
385
Ill.
App.
3d
781,
797
(3d Dist.
2008)
(emphasis
added).
Substantive due
process
is
not
within
this
parameter.
An
administrative
agency
only
has
that
jurisdiction
set forth
in
its
enabling
legislation:
As a
creature
of
statute,
[an
administrative
agency]
may
exercise
only
the
powers
conferred
upon
it
by the
legislature.
Any
power
or
authority
claimed
by
an
administrative
agency
must
find
its
source
within
the
provisions
of
the statute
by
which
the agency
was created.
The
agency’s
authority
must
either
arise
from
the
express
language
of
the
statute
or devolve
by
fair
implication
and intendment
from
the
express
provisions
of
the
statute
as
an
incident
to
achieving
the
objectives
for
which
the agency
was
created.
Nader
v.
Ill.
State
Bd.
of
Elections,
354
Ill.
App.
3d
335,
340
(1st
Dist.
2004)
(internal
citations
and
punctuation
omitted).
The
Illinois
legislature
has
not
given
this
Board
authority
to
address
substantive
due
process
as
it
relates
to
citizen
participation
in
siting
hearings
and
the other
1
statutory
and
constitutionally
protected
citizen
activities
that
occurred
in
the
period
leading
up
to
the
denial
of
Fox
Moraine’s
siting
permit
application.
In
contrast
to
this
fundamental
law,
Petitioner
Fox
Moraine
asks
the
Board
to
interpret
“fundamental
fairness”
to
go
far
beyond
the
procedures
that
the
Yorkville
City
Council
used.
It
asks
this
Board
to
expand
its
inquiry
to
whether
comments
made
by
members
of
the
general
public
outside
of
the
siting
hearing
caused
the
whole
siting
process
to
be
fundamentally
unfair.
As
Fox
Moraine
admits,
these
are
not
ex
parte
contacts
with
members
of
the
City
Council.
They
are
public
conmients
made
at
other
city
council
meetings
and
during
the
election
campaign
that
was
occurring
at
about
the
same
time
as
the
siting
hearing.
These
are
plainly
matters
that
are
beyond
the
scope
of
what
this
Board
can
review
as
part
of
its
“fundamental
fairness”
inquiry.
In
fact,
any
effort
to
extend
procedural
due
process
into
this
area
of
substantive
fundamental
fairness
would
result
in
this
Board
making
determinations
of:
(1)
what
is
and
is
not
“fair”
in
annexation
proceedings,
plan
commission
hearings
and
regular
City
council
meetings;
(2)
what
citizens
should
and
should
not
be
permitted
to do
in
the
election
of
local
officials;
and
(3)
the
manner
in
which
citizens
may
participate
in
a
siting
hearing
where
the
statute
not
only
contemplates,
but
encourages,
local
citizen
participation—and
even
more
troubling—the
parameters
of
citizen’s
First
Amendment
rights
in
these
various
processes
and
proceedings.
None
of
these
concepts
are
embodied
in
section
40.1(a)
and
to
attempt
to
infer
that
they
are
would
open
a
Pandora’s
Box
of
deliberative
confusion.
If
this
Board
were
to
buy
into
Fox
Moraine’s
position,
the
Board’s
ruling
would
have
the
inevitable
consequence
of
chilling
and
restraining
First
Amendment
speech,
peaceable
assembly,
and
other
political
and
procedural
rights
as
provided
Illinois
citizens
under
the
case
law,
municipal
code,
and
the
siting
statute.
2
What Fox Moraine
is asking
the Board to fmd
is that the
exercise of various First
Amendment
rights by citizens
of Yorkville
deny
Fox Moraine fundamental
fairness.
These First
Amendment
rights include
the citizens’
right to make public
comments—orally
and by posting
signs on matters
of
political
concern
to the local community.
They include
the citizens’
rights
to
petition their
elected officials
as to the manner in
which they
wish
to be represented.
They
include
the citizens’ rights
to
inform
their
fellow community
members about political
issues
in
an election. And they
include
the
citizens’ rights to vote
for those
elected
officials whom they
believe will
best represent them.
This is the political
process acting
in its purest form.
The
underlying
problem with
Fox Moraine’s
position is that
it really
seeks
relief for what
it
perceives—but
fails to identify—as
violations of substantive
due process;
not to the
procedural
due process
to which it is entitled
and which
it received.
If this Board
were to entangle
itself in the
question
of whether the
citizens’ exercise
of
their First Amendment
rights
denied Fox Moraine
“fundamental
fairness,”
this
would
have to
be
considered an issue
of substantive due
process. Such
an analysis would
go
far
beyond
the
question
of
whether
the
“minimal
standards
of procedural
due process”
were met—which
is the
question
this Board is authorized
to consider
in this context. Rather,
it would
ask
that,
even if the
City Council provided
adequate
procedural due process,
the hearing
was nevertheless unfair
because
of the content of the
citizens’
public
comments and speech
during the
course of the
election.
Such
analysis clearly
exceeds the
scope of what the
General Assembly
has authorized
this Board to consider
by
the
plain
language of section
40.1(a) and the
cases interpreting it
and
cited
herein.
For
these
reasons,
the Board should confme
its
analysis
of “fundamental
fairness” to the
procedures used by
the Yorkville City
Council
in conducting
the siting hearing.
This Board
3
should
not
consider
public
comments
that
citizens
made
during
the
hearings
on
annexation
or
during
an
election.
It
should
not
consider
the
political
affiliations
of
particular
citizens
and
candidates
or
their
positions
on
the
landfill
during
the
election.
It
should
not
even
consider
the
substantive
content
of
the
public
comments
made
during
the
siting
hearings,
beyond
ensuring
the
procedures
satisfied
Fox
Moraine’s
right
to
minimal
standards
of
procedural
due
process.
In
sum,
this
Board
should
not
engage
in
the
wide-open
inquest
of
whether
independent
citizens’
exercise
of
First
Amendment
rights
had
the
effect
of
denying
Fox
Moraine
its
rights
to
due
process.
A.
Under
the
plain
language
of
Section
40.1
and
the
case
law
interpreting
that
statute,
the
Board
must
limit
its
inquiry
to
the
fairness
of
the
procedures
used
during
the
siting
hearing.
By
refusing
to
consider
anything
beyond
the
procedures
that
the
Yorkville
City
Council
used
during
the
siting
hearing,
the
Board
will
simply
be
following
the
case
law.
In
Residents
Against
a
Polluted
Environment
v.
PCB,
293
Ill.
App.
3d
219,
222-23
(3d
Dist.
1997),
the
Appellate
Court
affirmed
the
Board’s
refusal
to
allow
landfill
opponents
to
present
evidence
of
an
applicant’s
involvement
in
La
Salle
County’s
process
of
amending
its
Solid
Waste
Management
Plan,
prior
to
the
applicant’s
application.
The
Appellate
Court
held
that
section
40.1
does
not
authorize
the
Board
to
review
these
kinds
of
matters
outside
the
siting
process.
Id.
at
223.
Here,
Fox
Moraine
is
asking
this
Board
to
delve
into
First
Amendment
issues
far
more
unwieldy
and
complex
than
the
amendment
of
the
solid
waste
management
plan
in
Residents.
Just
as
the
Appellate
Court
held
that
section
40.1
does
not
authorize
the
Board
to
review
the
applicant’s
involvement
in
the
amendment
of
that
solid
waste
plan,
this
Board
should
not
attempt
to
review
citizens’
public
comments
made
at
the
annexation
hearings.
4
The
annexation
process
provided
for
public
comment,
and
its.
procedures
were
governed
by
the
Municipal
Code
(65
ILCS
5/1 et
seq.).
Likewise,
any
review
of
the
canvassing
activity
or
political
affiliation
of
individuals
during
the Yorkville
election
of
2007
would
be fraught
with
First
Amendment
issues
beyond
the scope
of what
the
Board
can
review.
The
plain
language
of
section
40.1
is clear:
the
board
is
only
allowed
to
consider
“the
fundamental
fairness
of
the
procedures
used
by
the
[Yorkville
City
Council]
in
reaching
its
decision.”
415
ILCS
5/40.1(a)
(emphasis
added).
B.
The
content
of
public
comments
must
be
distinguished
from
the
procedures
the
City
Council
used
in
allowing
those
comments.
An
argument
similar
to Fox
Moraine’s
position
was addressed
and
rejected
in
Waste
Mgt.
of
Illinois
v.
PCB,
123
Ill. App.
3d
1075,
1081
(2d
Dist.
1984).
There,
the
petitioner-applicant
argued
that “the
intensity of citizen
opposition”
at
the public
hearing
and
“the
substantial
negative
public
reaction
to
its
application”
caused
the county
board’s
decision
to
be
fundamentally
unfair,
in
that
it
was
“based
‘not
on
the evidence
but
on
political
concerns.” jj,
The Appellate Court
disagreed,
stating:
The
statute
requires,
however,
only
that
the
procedures
be
fundamentally
fair.
The
procedures employed
by
the
Hearing
Committee
provided
a
full
and
complete
opportunity for petitioner
to
support
its
application.
*
*
*
[T]he
existence
of
strong
public
opposition
does
not
invalidate
the
[county
board’s]
decision.
j
Reasoning further,
the
Court
stated
that
“[w]here
the
statute
requires
the
[county
board]
to
conduct
a
public
hearing,
a
decision
does
not
become
unfair
merely
because
elected
officials
recognize public
sentiment.”
j
at 1082.
The
natural
corollary
of
this
reasoning
is
the fact
that
the
siting
process
does
not
become
fundamentally
unfair
because
citizens
convey
their
public
sentiment
to their
elected
officials.
The
protection
of
the
First
Amendment
extends
to both
the
citizens’
right
to petition
their
elected
5
officials
and
to
have
their
elected
officials
actually
receive
and
consider
those
petitions.
Stahelin
v.
Forest
Preserve
Dist.
of
DuPage
County,
376
Iii.
App.
3d
765,
777
(2d
Dist.
2007).
In
fact,
section
39.2
requires
local
officials
to
receive
and
consider
citizens’
public
comment
in
making
its
decision.
Section
39.2(c)
states
that
“[a]ny
person
may
file
written
conmient
...
concerning
the
appropriateness
of
the
proposed
site
for
its
intended
purpose.”
Section
39.2(d)
requires
a
public
hearing
be
held.
Section
39.2(c)
requires
that
the
“governing
body
of
the
municipality
shall
consider
any
comment
received
or
postmarked
not
later
than
30
days
after
the
date
of
the
last
public
hearing.”
In
other
words,
public
comment
is
a
mandatory
part
of
the
siting
procedure.
The
fact
that
the
content
of
that
public
comment
was
largely
an
expression
of
strong
negative
opinions
about
Fox
Moraine’s
application
did
not
cause
the
procedure
used
to
be
unfair.
In
People
ex
rel.
Klaeren
v.
Village
of
Lisle,
202
Ill.
2d
164
(2002),
our
Supreme
Court
recognized
the
principle
that
when
a
statute
provides
for
procedural
due
process
in
a
legislative
hearing,
the
procedures
afforded
must
be
meaningful.
Section
39.2
provides
citizens
with
the
right
to
public
comment
as
part
of
their
right
to
procedural
due
process.
The
content
of
the
citizens’
exercise
of
their
meaningful
right
to
procedural
due
process
is
not
something
that
can
deprive
Fox
Moraine
of
its
right
to
procedural
due
process.
The
statutory
requirement
that
the
public
be
allowed
to
comment
distinguishes
the
siting
application
process
from
a
more
traditional
judicial
or
adjudicatory
proceeding.
Consider
the
difference
if
the
siting
process
were
a
one-on-one,
adversarial
proceeding
where
a
trier
of
fact
was
called
on
to
consider
only
the
evidence
the
parties
chose
to
present.
If
that
were
the
case,
then
public
comment
would
have
no
place
in
the
procedure.
An
ordinary
citizen
would
have
no
First
Amendment
right
to
express
any
opinion
to
the
trier
of
fact.
If
a
judge
in
such
a
proceeding
6
were
to allow public
comment,
then
the fact of
public
comment
itself might
violate
due process.
But
the
violation would
be the
fact
of
public
comment,
not
the content
of
the
comments
themselves.
Here, the
General
Assembly
does not
create such
a judicial
or adjudicatory
procedure.
It
decided
that
the procedure
for
deciding landfill
siting
applications
should
be one
in which
“[p]public
participation
not
only is encouraged,
but
is required
by
the
statute.” Waste
Mgt.,
123
Ill. App.
3d at
1081
(citing
415 ILCS
5/39.2(c)).
As such,
courts
have recognized
that
“[a] local
siting
authority’s
role in
the
siting approval
process
is
both quasi-legislative
and
quasi-
adjudicative.”
Land
& Lakes
Co. v.
PCB, 319
Ill.
App. 3d
41,
48
(3d
Dist.
2000). Thus,
even
though
section
39.2
sets
out the nine
statutory
criteria that
must
be satisfied
before
a local
body
can grant
approval, “a
local
governing
body
may
fmd
the applicant
has
met
the
statutory criteria
and
properly
deny
the
application
based
upon
legislative-type
consideration.”
Southwest
Energy
Corp.
v. PCB,
275 Ill.
App.
3d 84,
91
(4th
Dist.
1995).
And one
such legislative-type
consideration
that
local
governing
body
may—and
must—take
into
account is
its
constituents’
public
comments
regarding
the
proposed
landfill.
Because public
comment
is
a
mandatory
part
of the
procedure,
and because
citizens
are
making
these public
comments
to
their elected
representatives,
the case
law
has
not
extended
“fundamental
fairness”
to apply
to the content
of citizens’
public
comments.
To
the
contrary,
section
39.2 expressly
prohibits
the content
of
a public
office-holder’s
statements
about
a siting
application
from being
used
as a basis
to
prevent that
person
from
voting
on
the
application:
The
fact
that a member
of
the county
board or governing
body of the
municipality
has publicly
expressed
an opinion
on an
issue
related
to a site review
proceeding
shall not
preclude
the
member from
taking part
in the
proceeding
and voting
on
the
issue.
7
415ILCS
5/39.2(d).
As
the
Court
in
Southwest
Energy
stated,
that
provision
“demonstrate{es]
the
General
Assembly’s
understanding
that
it
has
called
upon
locally
elected
officeholders
on
municipal
or
county
boards—not
judges—to
adjudicate
whether
the
siting
criteria
st
forth
in
section
39.2(a)
.
.
.
are
present
in
a
given
case,”
and
because
of
that,
“standards
governing
judicial
behavior
cannot
and
do
not
apply
to
local
officeholders.”
at
92.
If
section
39.2
provides
that
elected
officials
may
make
public
statements
without
the
content
of
those
statements
precluding
them
from
voting
on
the
application,
how
could
the
same
basic
principle
not
apply
to
expressions
of
opinions
by
individual
citizens?
Plainly,
the
statute
does
not
allow
the
expression
of
opinion
by
any
person
to
be
intermingled
with
an
analysis
of
whether
the
procedures
were
fair,
especially
where
those
procedures
allow
for
public
comment.
Speech
does
not
violate
procedural
due
process
because
it
is
loud,
vociferous,
or
makes
Fox
Moraine
uncomfortable.
The
First
Amendment
even
protects
this
type
of
speech.
Brandenburg
v.
Ohio,
395
U.S.
444,
447-48
(1969).
C.
The
legislature
created
a
process
in
which
a
high
level
of
citizen
participation
is
encouraged,
and
this
participation
is
fully
protected
by
the
First
Amendment.
This
participation
was
heightened
by
the
fact
that
a
municipal
election
was
occurring
at
the
same
time,
with
all
election
activities
being
protected
by
the
First
Amendment.
The
citizens
of
Yorkville
had
a
First
Amendment
right
to
oppose
the
siting
of
this
landfill
in
Yorkville.
Fox
Moraine
had
no
right
to
be
unopposed.
The
statutory
provision
for
public
hearings
with
public
comment
indicates
that
these
hearings
are
held
to
elicit
and
evaluate
the
reactions,
comments,
and
complaints
of
private
citizens
about
the
fact
that
a
landfill
might
be
built
in
their
community.
With
the
issue
of
landfill
siting,
the
Illinois
General
Assembly
saw
fit
to
create
a
procedure
whereby
the
public
participated
more
directly
than
with
other
issues.
By
creating
this
procedure,
the
General
Assembly
advances
significant
First
Amendment
interests.
All
citizens,
8
regardless of the
content
of
their ideas, have the right to petition the government.
This is a core
political right acknowledged or provided by the Illinois
Legislature
in
the siting statute.
Equally as important, though, the citizens of Yorkville had a
First Amendment right to
elect
representatives whom they believed would best represent the community. Those
residents
who were opposed to the landfill siting had
the
right to support representatives whom they
believed
were
also opposed to the landfill siting, just as any
residents
who
supported the landfill
would have a right
support representatives whom, they believed also supported
the landfill.
They
had the right to canvas during the election and
speak freely about an important
political
issue affecting the
community. This,
again, is a core political right; as was
their
right to express
themselves by
the
posting of signs carrying their
message. These things are not some sort of
procedure that the Board can
analyze
from fundamental fairness
standpoint.
To
adopt a contrary
position
would essentially communicate to a siting
applicant that it should file its siting
application and go forward
with the siting hearing during an election because, if
the siting
is
subsequently
rejected
by
candidates supported by siting opponents,
the applicant enhances its
position
to overturn the denial because
citizens
exercised
their
free speech and
political
rights to
elect their favored
candidates. There is nothing in the siting statute to
even suggest that this
concept
should
be
entertained by
this Board.
It is obvious
that Fox Moraine had all the same First
Amendment rights that landfill
opponents
had. Fox Moraine
could
have mounted a campaign during
the election to inform
citizens
about the benefits that the landfill
would
have
brought to Yorkville. It could have
mobilized more
citizens
who wanted a
landfill
to
advocate
on its behalf through public
comments.
It could
have supported candidates favorable to
its position. It may well have even
done
these things.
But even if it did, it does not change the charge of
this Board to review
the
9
procedural
due
process
provided
at
the
siting
hearing.
It
is
more
than
significant
in
the
context
of
this
Board’s
review
standard
that
Fox
Moraine
does
not
contest
that
it
was
given
all
reasonable
opportunity
to
present
its
evidence
and
position
at
the
siting
hearing.
Fox
Moraine
made
the
tactical
decision
to
submit
its
siting
application
to
the
City
of
Yorkville
five
months
before
a
municipal
election
was
to
occur.
Fox
Moraine
knew
that
an
election
was
going
to
take
place
about
the
same
time
as
the
public
hearings
on
its
application.
It
is
naïve
to
think
that
Fox
Moraine
did
not
anticipate
that
the
landfill
would
become
an
issue
in
the
municipal
election.
There
is
nothing
that
makes
landfill
siting
an
off-limits
issue
for
citizens
and
candidates
to
discuss.
D.
What
Fox
Moraine
is
asking
would
require
this
Board
to
engage
in
a
substantive
due
process
analysis,
which
is
beyond
what
is
required
by
“fundamental
fairness”
in
this
context.
Ultimately,
what
Fox
Moraine
is
asking
in
this
case
is
that
the
Board
interpret
fundamental
fairness
as
incorporating
principles
of
substantive
due
process—that
the.
Yorkville
citizens’
exercise
of
their
First
Amendment
rights
manipulated
the
political
process
to
the
point
where
Fox
Moraine
did
not
receive
a
fair
hearing,
even
if
the
City
Council
followed
proper
procedures.
A
similar
argument
was
presented
to
and
rejected
by
the
U.S.
Court
of
Appeals
for
the
First
Circuit
in
the
case
of
Nestor
Colon
Medina
&
Sucesores.
Inc.
v.
Custodio,
964
F.2d
32,
•
45-47
(1st
Cir.
199.1).
There,the
plaintiff
was
an
applicant
who
sought
to
build
two
hazardous
waste
facilities.
Ii
at
34.
The
state
board
responsible
for
issuing
permits
denied
the
plaintiff
its
permits,
despite
the
plaintiff’s
allegations
that
it
had
satisfied
all
of
the
relevant
siting
criteria
necessary
to
receive
a
permit.
j
at
34-35.
The
plaintiff
alleged,
among
other
things,
that
the
true
reason
for
the
denial
was
political
manipulation
of
the
permitting
process
by
opponents
of
the
10
landfill,
and
that
this violated
its right
to
substantive
due
process.
jj
at 36.
On
the
question
of
whether
this
violated
substantive
due
process,
the
court
stated:
The
substantive
due
process
claim
must
rest
on
suggestions
of
political
manipulation
of
the permitting
process
aimed
***
at stopping
the project
for some
other
reason,
such
as
popular
opposition
to
a
dump
of
this nature.
As noted,
the
project
stirred
up
opposition
by
many
elements
of
the
local
community.
The
question
thus
arises
whether
allegations
of
political
interference
with
the
permitting
process
give
rise
to a
substantive
due
process
claim.
We
think
not,
on
this
record.
Id. at
46.
The
Court
further
stated
that
for
courts
“to
attempt
to regulate,
as a
matter
of
substantive
due
process,
the
permissible
extent
to
which
government
administrators
may
take
such
opposition
into
account
would
seriously
embroil
them
in
unpromising
and
unwarranted
efforts
to tailor
the
democratic
process.”
j4
at
47.
The
reasoning
in
the
Nestor
case
provides
support
for the
Board
to
refuse
to
interpret
fundamental
fairness
as
incorporating
the
Yorkville
citizens’
expression
to
the
City Council
of
public
opposition to
the
landfill.
For
the
Board
to
attempt
to
regulate,
through
fundamental
fairness,
the
permissible
extent
to
which
local
elected
officials
may
take
citizen
opposition
into
account
would
seriously
embroil
the Board
in unpromising
and
unwarranted
efforts
to
tailor
the
democratic process.
If the
Board
were
to
try
to
do
this,
what
standards
could
it
possibly
apply?
The best
way
to avoid
this
is to
limit
the
analysis
of
fundamental
fairness
to the
procedures
that
the
City
of
Yorkville
Council
used
in
the siting
hearing,
and
not change
the standard
of review
established
by
the legislature
and
confirmed
by
the
courts.
E.
The
court
should
avoid
a
substantive
due
process
analysis
where
the
issue
can be
decided
on
non-constitutional
grounds.
In one
respect
this
Board
could
avoid
the
morass
of
substantive
due process
analysis
that Fox
Moraine
is
seeking
by deciding
that
Fox
Moraine
has
failed
to
meets
its
burden
on
one
or
more
of
the nine
siting
criteria.
“A
negative
decision
as to
one
of the
criteria
is
sufficient
to
11
defeat
an
application
for
site
approval
of
the
pollution
control
facility.”
Town
&
Country
Utilities.
Inc.
v.
PCB,
225
III.
2d
103,
109
(2007).
The
Board
should
continue
its
past
practice
of
not
delving
into
substantive
due
process
as
an
element
of
its
review
except
to
conclude
that
substantive
due
process
is
not
its
statutory
function.
Friends
of
Greater
Yorkville
will
not
address
the
nine
criteria
in
this
amicus
brief.
Friends
of
Greater
Yorkville
simply
adopts
the
arguments
of
the
Respondent
and
requests
that
this
Board
find
that
its
decision
was
not
against
the
manifest
weight
of
the
evidence.
Conclusion
For
all
the
reasons
cited
above,
Friends
of
Greater
Yorkville
respectfully
requests
this
Board
to
affirm
the
decision
of
the
Yorkville
City
Council
in
denying
Fox
Moraine’s
siting
application.
James
H.
Knippen,
II
Adam
C.
Kruse
WALSH,
KNIPPEN, KNIGHT
&
POLLOCK,
CHARTERED
2150
Manchester
Rd.,
Ste.
200
Wheaton,
IL
60
187-2476
630-462-1980
Respectfully
submitted,
OF
GREATER
YORKVILLE
12
Certificate
of
Service
The
undersigned
attorney
certifies
that
on
July
17, 2009,
I served
a copy
of
the
Arnicus
Curiae
Brief
of Friends
of Greater
Yorkville
on the
following,
via
email:
Via
email
— hallorab@ipcb.state.il.us
Bradley
P.
Halloran
Hearing
Officer
Illinois
Pollution
Control
Board
James
R. Thompson
Center
100W.
Randolph
St.,
Ste.
11-500
Chicago,
IL 60601
Via email
— chelsten@hinslawlaw.com
Charles
F.
Heisten
Hinshaw
&
Culbertson,
LLP
100 Park
Ave.
P.O.
Box
1389
Rockford,
IL
61105-1389
Via email
— george@muelleranderson.com
George
Mueller
Mueller
Anderson,
P.C.
609
Etna
Rd.
Ottawa,
IL
61350
James
H.
Knippen,
II
Adam
C.
Kruse
WALSH,
KNIPPEN,
KNIGHT
&
POLLOCK,
CHARTERED
2150
Manchester
Rd.,
Ste. 200
Wheaton,
IL
60 187-2476
630-462-1980
Via email
— dombrowski@wildman.com
Leo
P.
Dornbrowski
Wildman,
Harrold,
Allen
& Dixon
225
W.
Wacker
Dr.,
Ste. 3000
Chicago,
IL 60606-1229
Via
email
— jharkness@momlaw.
corn
James
S.
Harkness
Momkus
McCluskey,
LLC
1001
Warrenville
Rd.,
Ste. 500
Lisle,
IL 60532
Via
email
— eweis@co.kendall.il.us
Eric
C. Weiss
Kendall
County
State’s
Attorney
Kendall
County
Courthouse
807
John St.
Yorkville,
IL
60560
Via
email
— katie@mckeownlawfirm.com
Katie
Eisnaugle
McKeown
Fitzgerald
Zoliner
Buck
Hutchinson
&
Ruttle
2455
Glenwood
Ave.
Joliet,
IL
60435
(hi
13