Fox Moraine, LLC v. United City of Yorkville, No. 2–10–0017.

CourtUnited States Appellate Court of Illinois
Citation2011 IL App (2d) 100017,960 N.E.2d 1144,356 Ill.Dec. 21
Docket NumberNo. 2–10–0017.
PartiesFOX MORAINE, LLC, Petitioner, v. The UNITED CITY OF YORKVILLE, City Council, and the Pollution Control Board, Respondents (Kendall County, Intervenor–Appellee).
Decision Date08 November 2011

2011 IL App (2d) 100017
356 Ill.Dec.
21
960 N.E.2d 1144

FOX MORAINE, LLC, Petitioner,
v.
The UNITED CITY OF YORKVILLE, City Council, and the Pollution Control Board, Respondents (Kendall County, Intervenor–Appellee).

No. 2–10–0017.

Appellate Court of Illinois, Second District.

Nov. 8, 2011.


[960 N.E.2d 1148]

Charles F. Helsten, Nicola A. Nelson, Hinshaw & Culbertson LLP, Rockford, George Mueller, Mueller Anderson, P.C., Ottawa, for Fox Moraine, LLC.

Lisa Madigan, Attorney General, State of Illinois, Michael A. Scodro, Solicitor General, Brett E. Legner, Assistant Attorney General, for Illinois Pollution Control Board.

Anthony G. Hopp, Leo P. Dombrowski, Wildman, Harrold, Allen & Dixon, Chicago, for United City of Yorville, City Council.James F. McCluskey, James S. Harkness, Momkus McCluskey, LLC, Lisle, for Kendall County, Illinois.

[960 N.E.2d 1149]

James H. Knippen, Adam C. Kruse, Walsh, Knippen, Knight & Pollock, Chtrd., Wheaton, for Friends of Greater Yorkville.James B. Harvey, McKeown Fitzgerald Zollner Buck Hutchinson Harvey, Joliet, for Village of Plainfield.

OPINION
Justice BOWMAN delivered the judgment of the court, with opinion.

[356 Ill.Dec. 26] ¶ 1 Petitioner, Fox Moraine, LLC, appeals from the order of respondent the Illinois Pollution Control Board (Board), affirming the decision of respondent the city council of the United City of Yorkville, to deny Fox Moraine's siting application to construct a landfill in Yorkville. On appeal, Fox Moraine argues that the hearings on its application were not fundamentally fair and that the finding that it failed to satisfy the siting criteria in section 39.2(a) of the Environmental Protection Act (Act) (415 ILCS 5/39.2(a) (West 2006)) was against the manifest weight of the evidence. For the reasons that follow, we confirm the decision of the Board.

¶ 2 I. BACKGROUND

¶ 3 This case unfolded when Fox Moraine, owned in part by Donald Hamman, sought to build a landfill in Kendall County. Hamman, a major landowner in the Yorkville area, first spoke with Kendall County leaders about siting a landfill on some unincorporated land bordering Yorkville's city limits. When negotiations with the county began to break down, Fox Moraine sought to annex the land, in order to work with Yorkville officials in the siting process. Yorkville residents were familiar with Hamman because he operated a yard-waste facility on a small portion of the land at issue. They were also aware of the proposed landfill because news reports had been published regarding Fox Moraine's discussions with Kendall County. Certain members of the public started a campaign against the landfill during the annexation proceedings. 1 Citizens opposed to the landfill formed a group, Friends of Greater Yorkville (FOGY), and it distributed ads and encouraged members of the public to voice their concerns about the landfill. Ultimately, the land was annexed, and Fox Moraine filed its siting application. The record in this matter is extensive, comprising over 20,000 pages of transcripts. Therefore, we first summarize the procedural history and will discuss the specific relevant facts as we address the pertinent arguments.

¶ 4 Fox Moraine filed a siting application pursuant to section 39.2(a) of the Act on December 1, 2006. The comprehensive application, consisting of several hundreds of pages, addressed the nine criteria outlined in section 39.2. Yorkville then held several hearings in March and April 2007, which resulted in the city council denying the application. It found that Fox Moraine did not meet the criteria set forth in subsections (i), (ii), (iii), (v), (vi), and (viii) of section 39.2(a) of the Act. The city council also determined that Fox Moraine's prior operating history was not in its favor, which is also a consideration set forth in section 39.2(a). The formal city council denial, dated May 24, 2007, included conditions in case the Board or this court reversed its denial. We note that Yorkville conducted a local election to fill the mayoral seat and four aldermanic seats on April 17, which was after the hearings closed but [356 Ill.Dec. 27]

[960 N.E.2d 1150]

before the council's deliberations and vote. Mayor Arthur Prochaska was defeated by Alderman Valerie Burd. Additionally, three new aldermen were elected: Arden Plocher, Robyn Sutcliff, and Walter Werderich. The “new” city council was sworn in on May 8. On May 24, the three new council members participated in the deliberations and the vote to deny the landfill siting application, along with Aldermen Marty Munns, Joseph Besco, Jason Leslie, Gary Golinski, and Rose Ann Spears.

¶ 5 Fox Moraine timely petitioned the Pollution Control Board, seeking review of the city council's decision and arguing that the proceedings were fundamentally unfair and that the findings on the criteria were against the manifest weight of the evidence.2 Fox Moraine argues in this appeal that the city council and Board proceedings were fundamentally unfair because: (1) city council members were biased and driven by political considerations, which caused them to prejudge its siting application; (2) the council considered information not contained in the record, including a report prepared for Yorkville by attorney Michael Roth of the Wildman Harrold law firm (the Roth Report); and (3) the Board incorrectly applied the deliberative process privilege and did not apply the proper standard in determining whether council members were biased. Regarding council members' bias, Fox Moraine argues that Burd colluded with antilandfill proponents and that her campaign committee was staffed by founders of FOGY. FOGY leaders who worked on Burd's campaign included Plocher, Werderich, Ron Parrish, and Todd Milliron. On the first day of the siting hearings, Fox Moraine moved to disqualify Burd because of her public antilandfill statements, but its motion was denied. Fox Moraine further alleges that prior to taking mayoral office Burd employed the Wildman Harrold law firm to work on defeating the landfill siting application and that she rushed the council to the vote without allowing it adequate time to review all materials.

¶ 6 Fox Moraine alleges that Spears was biased because she performed her own research during the landfill siting proceedings. It alleges that Sutcliff was biased because she campaigned on an antilandfill platform and stated that a landfill would be a “negative addition to the City.” It alleges that Werderich and Plocher also campaigned on antilandfill platforms. It argues that Werderich openly stated that one way to stop the landfill was to stop the annexation and that he helped found FOGY shortly after the annexation hearings. Werderich's and Plocher's campaigns were funded by Milliron and Parrish. Plocher was outspoken during the annexation proceedings. According to Fox Moraine, Plocher said shortly before his election that there was no such thing as a safe and compliant landfill and during deliberations on the application he made statements that established that he would never approve the landfill application.

¶ 7 Within its fundamental fairness argument, Fox Moraine argues that the Board erred in denying its motion to compel disclosure of the Roth Report. Fox Moraine had filed the motion on September 24, 2008, arguing that it was not made part of the record despite the fact that the transcripts of the city council's deliberations indicated that the council had received and considered it. Fox Moraine [356 Ill.Dec. 28]

[960 N.E.2d 1151]

argued that, as a matter of fundamental fairness, it was entitled to know all of the materials the city council considered in making its decision and that there was “no privilege applicable to the Roth report any more tha[n] there would have been a privilege applicable to the report authored by attorney Derke Price.” Fox Moraine never requested the Board to inspect the Roth Report in camera to determine whether it contained materials that were nonprivileged or that would have prejudiced Fox Moraine. Fox Moraine also did not explicitly argue that Yorkville waived any privilege, although it did argue that council members discussed the report on the record. Further, the Board would not allow Fox Moraine to inquire into the council members' mental impressions, on the ground that the deliberative process privilege barred such questioning of a decision-maker. Fox Moraine argues that the Board misapplied the deliberative process privilege.

¶ 8 Regarding the fundamental fairness of the city council's proceedings, the Board determined that the evidence was insufficient to find that the council's decision-making process was fraught with bad faith and closed minds. While it found that some of the council members might have expressed opinions on annexation, it noted that the record contained no such statements about the landfill siting application. In addition, the Board rejected Fox Moraine's argument that the conduct of the council members running for election rose to the level of bad faith. The Board also determined that the city council had all materials prior to its deliberations, despite Fox Moraine's argument that a substantial amount of information was submitted on May 23, 2007, which gave the council members little time to review. Regarding Fox Moraine's argument that the city council considered materials outside the record, the Board determined that the Roth Report was protected by attorney-client privilege and that nothing in the record supported Fox Moraine's argument that the city council relied on that report or performed its own outside research. In its denial of the motion to compel disclosure of the Roth Report, the Board stated that Fox Moraine should have filed the motion earlier but that, regardless, the report was protected by attorney-client privilege. The Board's analysis provided: “Fox Moraine concedes that Michael Roth and his firm were hired to assist Yorkville in petitioner's landfill application and proceedings. To...

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9 practice notes
  • Ctr. Partners, Ltd. v. Growth Head GP, LLC, Nos. 113107
    • United States
    • Supreme Court of Illinois
    • November 29, 2012
    ...Norskog, 197 Ill.2d at 71, 257 Ill.Dec. 899, 755 N.E.2d 1;Fox Moraine, LLC v. United City of Yorkville, 2011 IL App (2d) 100017, ¶ 63, 356 Ill.Dec. 21, 960 N.E.2d 1144. ¶ 66 In general, “ ‘[w]aiver’ means the voluntary relinquishment of a known right” and arises from an affirmative, consens......
  • Janousek v. Slotky, Docket No. 1–11–3432.
    • United States
    • United States Appellate Court of Illinois
    • October 25, 2012
    ...Co., 89 Ill.2d at 119, 59 Ill.Dec. 666, 432 N.E.2d 250; Fox Moraine, LLC v. United City of Yorkville, 2011 IL App (2d) 100017, ¶ 63, 356 Ill.Dec. 21, 960 N.E.2d 1144.¶ 23 Here, Janousek claims a right to discover defendants' records in litigation through Rule 201. Defendants' suggestion tha......
  • Stop the Mega-Dump v. Cnty. Bd. of De Kalb Cnty., No. 2–11–0579.
    • United States
    • United States Appellate Court of Illinois
    • October 29, 2012
    ...concerning the application. 415 ILCS 5/39.2(d) (West 2010); Fox Moraine, LLC v. United City of Yorkville, 2011 IL App (2d) 100017, ¶ 14, 356 Ill.Dec. 21, 960 N.E.2d 1144. Any person may file written comments concerning the appropriateness of the proposed site, and the siting authority shall......
  • Blickenstaff v. Blickenstaff (In re Estate of Blickenstaff), Docket No. 4–12–0480.
    • United States
    • United States Appellate Court of Illinois
    • December 18, 2012
    ...communications." (Internal quotation marks omitted.) Fox Moraine, LLC v. United City of Yorkville, 2011 IL App (2d) 100017, ¶ 65, 356 Ill.Dec. 21, 960 N.E.2d 1144. By paying the attorney fees out of the estate, the executor voluntarily injected into this case the issue of whether the attorn......
  • Request a trial to view additional results
9 cases
  • Ctr. Partners, Ltd. v. Growth Head GP, LLC, Nos. 113107
    • United States
    • Supreme Court of Illinois
    • November 29, 2012
    ...Norskog, 197 Ill.2d at 71, 257 Ill.Dec. 899, 755 N.E.2d 1;Fox Moraine, LLC v. United City of Yorkville, 2011 IL App (2d) 100017, ¶ 63, 356 Ill.Dec. 21, 960 N.E.2d 1144. ¶ 66 In general, “ ‘[w]aiver’ means the voluntary relinquishment of a known right” and arises from an affirmative, consens......
  • Janousek v. Slotky, Docket No. 1–11–3432.
    • United States
    • United States Appellate Court of Illinois
    • October 25, 2012
    ...Co., 89 Ill.2d at 119, 59 Ill.Dec. 666, 432 N.E.2d 250; Fox Moraine, LLC v. United City of Yorkville, 2011 IL App (2d) 100017, ¶ 63, 356 Ill.Dec. 21, 960 N.E.2d 1144.¶ 23 Here, Janousek claims a right to discover defendants' records in litigation through Rule 201. Defendants' suggestion tha......
  • Stop the Mega-Dump v. Cnty. Bd. of De Kalb Cnty., No. 2–11–0579.
    • United States
    • United States Appellate Court of Illinois
    • October 29, 2012
    ...concerning the application. 415 ILCS 5/39.2(d) (West 2010); Fox Moraine, LLC v. United City of Yorkville, 2011 IL App (2d) 100017, ¶ 14, 356 Ill.Dec. 21, 960 N.E.2d 1144. Any person may file written comments concerning the appropriateness of the proposed site, and the siting authority shall......
  • Blickenstaff v. Blickenstaff (In re Estate of Blickenstaff), Docket No. 4–12–0480.
    • United States
    • United States Appellate Court of Illinois
    • December 18, 2012
    ...communications." (Internal quotation marks omitted.) Fox Moraine, LLC v. United City of Yorkville, 2011 IL App (2d) 100017, ¶ 65, 356 Ill.Dec. 21, 960 N.E.2d 1144. By paying the attorney fees out of the estate, the executor voluntarily injected into this case the issue of whether the attorn......
  • Request a trial to view additional results

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