Gerwin v. Livingston County Bd.

• Decision Date: 31 December 2003
• Docket Number: No. 4-03-0158.,4-03-0158.
• Citation: 345 Ill. App.3d 352,280 Ill.Dec. 485,802 N.E.2d 410
• Parties: Dr. Joseph K. GERWIN and Carolyn K. Gerwin, Plaintiffs-Appellants, v. LIVINGSTON COUNTY BOARD, Livingston County, Illinois; John T. Jacobson; and American Disposal Services of Illinois, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

802 N.E.2d 410

345 Ill. App.3d 352

280 Ill.Dec. 485

Dr. Joseph K. GERWIN and Carolyn K. Gerwin, Plaintiffs-Appellants, v. LIVINGSTON COUNTY BOARD, Livingston County, Illinois; John T. Jacobson; and American Disposal Services of Illinois, Defendants-Appellees.

No. 4-03-0158.

Appellate Court of Illinois, Fourth District.

December 31, 2003.

Joseph K. Gerwin, Pontiac, Pro Se. Thomas J. Brown, State's Attorney, Carey J. Luckman, First Assistant State's Attorney, Pontiac, for Livingston County Board.

Douglas E. Lee, Ehrmann, Gehlbach, Badger & Lee, Dixon, for American Disposal Services of IL.

Justice APPLETON delivered the opinion of the court:

Plaintiffs, Joseph K. and Carolyn K. Gerwin, sued the Livingston County board and its chairman, John T. Jacobson, for holding a public meeting in an "inconvenient" place, in violation of section 2.01 of the Open Meetings Act (Act) (5 ILCS 120/2.01 (West 2002)). In that meeting, the board voted to amend the county solidwaste disposal plan (plan) so that American Disposal Services of Illinois (American Disposal) could expand a landfill in Pontiac. The trial court allowed American Disposal to intervene as a defendant, and American Disposal and the other defendants moved to dismiss plaintiffs' firstamended complaint, with prejudice, pursuant to sections 2-615(e) and 2-619(a)(9) of the Code of Civil Procedure (Code) (735 ILCS 5/2-615(e), 2-619(a)(9) (West 2002)). The court granted the motions to dismiss, and plaintiffs appeal.

Plaintiffs argue that because the board knew ahead of time that the meeting would attract more people than would fit into the county boardroom and because alternative venues were available, the boardroom was not "convenient * * * to the public" within the meaning of section 2.01 of the Act. We hold that the issue of public convenience was one of fact that the trial court should not have resolved on the pleadings. Plaintiffs have stated a cause of action, and we reverse the trial court's judgment.

I. BACKGROUND

Because the trial court dismissed the first-amended complaint pursuant to sections 2-615 and 2-619, we accept all wellpleaded facts in the first-amended complaint as true and draw all reasonable inferences from those facts in plaintiff's favor. See Storm & Associates, Ltd. v. Cuculich, 298 Ill.App.3d 1040, 1047, 233 Ill.Dec. 101, 700 N.E.2d 202, 207 (1998). We review the dismissal de novo. Glisson v. City of Marion, 188 Ill.2d 211, 221,

242 Ill.Dec. 79, 720 N.E.2d 1034, 1039 (1999); Thomas v. Hileman, 333 Ill.App.3d 132, 136, 266 Ill.Dec. 669, 775 N.E.2d 231, 234 (2002).

Plaintiffs allege the following facts in their first-amended complaint. Allied Waste Disposal, through its subsidiary, American Disposal (we will refer to the two collectively as Allied Waste), operates a landfill in Pontiac. Sometime prior to May 16, 2002, Allied Waste informed the board that it wished to expand the landfill. Such an expansion would have been impermissible under the plan in effect at the time. Therefore, Allied Waste requested the board to amend the plan to allow the expansion. The board published an announcement in a local newspaper that it would hold a public hearing on the proposed amendment on May 16, 2002.

Approximately 20 members of the public, including Carolyn Gerwin, attended the May 16 meeting. "The room was crowded * * *." Plaintiffs allege, on information and belief, that Jacobson supported the expansion of the landfill. He announced that members of the public would be allowed only three minutes apiece to address the board on the proposed amendment of the plan. "In contrast to the limits put on citizens' comments, representatives of Allied Waste were permitted to address the [b]oard in an interactive format for an extended period of time," and "Jacobson and the [b]oard allowed representatives of Allied Waste to have greater access to [b]oard members during the public meeting than was provided to members of the general public, including [p]laintiffs." The board decided to delay voting on the proposed amendment of the plan until its meeting scheduled for June 13, 2002.

In the meantime, opponents of the landfill collected signatures on petitions and took out "large ads" in local and regional newspapers, urging citizens to attend a meeting of the agricultural committee scheduled for June 4, 2002, as well as a meeting of the board scheduled for June 13, 2002. (The agricultural committee was a standing committee of the board and had jurisdiction over landfills.)

"[A]n overflow crowd of citizens" attended the June 4 committee meeting. "Many people," including Joseph Gerwin, "were forced to stand in the hallway." Plaintiffs allege, on information and belief, that the room where the board met had "a maximum capacity of 49 persons under the fire code. This number would have to include the 28 [b]oard members and their advisors." Carolyn Gerwin managed to get into the boardroom on that occasion and gave the board a petition bearing the signatures of 500 Livingston County residents opposed to the expansion of the landfill.

The "[a]dministrative [c]ommittee of the [b]oard" had a meeting on June 6, 2002, and according to the minutes of that meeting, Frank Livingston of the agricultural committee reported that 97 people had attended the June 4 meeting. Another board member, Dee Woodburn, "expressed concern about the lack of space for spectators in the [b]oard room and asked if there was any possibility of changing the location for the June [b]oard meeting. According to the minutes, `Jacobson suggested it would be difficult to change at this point in time.'"

Plaintiffs allege, on information and belief, that Jacobson and the board knew, at least seven days in advance, that the June 13 meeting would attract large numbers of the public. Nevertheless, the board made no effort to move the meeting to a larger room. Plaintiffs allege:

"Despite inquiries from news organizations and members of the public regarding changing the venue of the meeting to accommodate anticipated crowds, Mr. Jacobson stated to the press and to individuals that the [b]oard would meet in its regular chambers [in the county courthouse,] despite the very limited capacity of the room."

Plaintiffs further allege, on information and belief, that Jacobson actually "attempted to discourage public participation in the June 13 board meeting by telling members of the public and the press that the June 13 meeting would not be moved to a larger room."

Plaintiffs further allege:

"In the past, when large numbers of citizens were known to be interested in matters before the [b]oard, the [b]oard arranged to hold its meeting in a larger space. For example, a meeting concerning property tax caps was held at the Pontiac Township High School."

After voting to amend the plan, the board held hearings for an entire week on Allied Waste's application to expand the landfill, and the location of those hearings was the more expansive Pontiac city council chambers rather than the boardroom.

Plaintiffs further allege, on information and belief, that members of the public began arriving an hour ahead of time for the June 13 board meeting, lining up outside the courthouse, but Allied Waste had "encouraged its employees, union members[,] and their families to arrive at the courthouse extremely early so that they could fill the [b]oard[ ]room with pro-landfill employees." When Carolyn Gerwin arrived 15 minutes before the meeting, "the crowd outside the courthouse had grown to at least 75 people. More than 150 people attempted to attend the June 13 meeting." Although Jacobson and the board knew that most of those people would not fit into the boardroom, they made no arrangements to accommodate them. "Several alternatives were available * * * that could have provided the public access to the meeting."

Five minutes before the meeting, the courthouse doors swung open, and the crowd entered the courthouse, but "[o]nly a few members of the public were able to enter the meeting room." Plaintiffs allege that "[m]ost of the citizens who were permitted to enter the [b]oard[ ]room were in favor of the landfill. Only a few landfill protesters gained admittance," although (plaintiffs allege on information and belief) more people in the crowd were opposed to the landfill than in favor of it. "Agents of Allied Waste were permitted to enter the meeting room despite having arrived after citizens who were made to stand in the hall." By "[e]xcluding members of the public from the meeting room," the board "prevented most opponents of the landfill from observing and visually confronting [b]oard members during the meeting." Had the board admitted plaintiffs and other protesters into the room, it "may have decided to allow additional public comment from interested citizens."

At first, Carolyn Gerwin had to stand in a stairwell between the first and second floors of the courthouse. Later, she was able to reach the second-floor hallway and stand about 10 feet from the door of the boardroom, along with 100 other people. Joseph Gerwin, who had arrived just before the meeting began, also was forced to stand in the second-floor hallway, about 20 feet from the door. Neither plaintiff could hear or see any of the proceedings of the board meeting. The air in the packed hallway was "close, hot, airless, and uncomfortable. No seating was made available at any time." Plaintiffs allege, on information and belief, that many members of the public left, either because they could not hear or see the meeting or because conditions in the courthouse were intolerable.

The board voted 16 to 11 in favor of amending the plan, with one member abstaining.

In their first-amended complaint, plaintiffs requested the trial court to (1) nullify the vote of June 13, 2002; (2) issue an injunction against future violations of the Act; (3) require that "all future meetings concerning the * * * [l]andfill be held at such locations as are sufficient to accommodate all...