The opinion of the court was delivered by: Justice Kilbride
Docket No. 90537-Agenda 29-May 2001.
The primary issue presented by this appeal is whether a landowner whose property abuts a parcel subject to a proposed annexation, special use, and rezoning petition can be wholly denied the right to cross-examine witnesses at a public hearing regarding the petition. Plaintiffs, residents of the Village of Lisle (village) who reside next to a parcel where defendant Meijer, Inc. (Meijer), plans to build a retail store, sought a preliminary injunction to prevent the continuation of site preparation for construction of the store, alleging that procedural defects occurred in the public hearing for the annexation and rezoning of the property. The circuit court of Du Page County granted the preliminary injunction. Defendants, Meijer, the village, and Saint Procopious Abbey (the Abbey), brought an interlocutory appeal under Supreme Court Rule 307(a) (188 Ill. 2d R. 307(a)). The appellate court held that the complete denial of the right of interested parties to cross-examine witnesses at the village's joint public hearing was improper. 316 Ill. App. 3d 770. We agree and hold that, because the joint hearing included a special use petition, due process required that interested parties be afforded the right to cross-examine witnesses.
The following facts were adduced at the preliminary injunction hearing.
Meijer sought to open a new store in the village, entering into a contract with the Abbey to purchase a 60-acre parcel of land. As part of the development plan for the store, Meijer requested that the village pass ordinances: (1) annexing the parcel; (2) rezoning the parcel from R-1 (residential) to B-2 (commercial business district); and (3) granting special uses for a planned unit development and for a gasoline service station. Throughout the municipal zoning process, Meijer was opposed by plaintiffs, who alleged that the increased traffic, noise and lighting around the new store would diminish their property values and quality of life. Plaintiffs' challenge to the annexation, rezoning and special use focuses on alleged procedural irregularities that occurred at a joint public hearing that took place on July 9, 1998. On that date, the village board of trustees (village board), the village plan commission (plan commission), and the village zoning board of appeals (zoning board) each convened a separate public hearing regarding the Meijer proposal at the village hall. Each body then independently moved to recess its hearing and reconvene in a joint hearing at a local junior high school auditorium. *fn1 The record reveals that the joint hearing attracted a large audience. The auditorium seats 500 people. On the night of the hearing, audience members were standing in the aisles and in the hall outside, as well as sitting on the stairs leading up to the stage and on the stage itself.
When the hearing reconvened, the village mayor, Ronald Ghilardi, who presided over the proceeding, stated:
"This is a public hearing. It is not a debate. There will be no attempt at tonight's hearing to answer any question raised by the audience.
To the extent possible the speaker will address questions and concerned [sic] raised by the combined boards this evening.
The petitioner will be first subject to any questions by the assembled boards. We will attempt to deal with each individual aspect of the presentation as it's made.
People in the audience speaking in favor of the proposal will then be heard. People in the audience speaking in opposition of the proposal will then be heard. The petitioner will then be allowed to make closing comments.
After closing comments by the petitioner, the public hearing will be adjourned.
Public records will remain open for written comments by interested parties. Any written comments must be received at the Village offices by 4:30 p.m. Friday, July 31st.
To be fair to everyone in the audience, I ask that you limit your comments to two minutes each. I will be the time keeper and will let you know when 15 seconds remain.
No one will be allowed to speak a second time until everyone has an opportunity to speak once. That requirement will also be applicable to members of the assembled boards."
Witnesses then spoke on behalf of Meijer. Those witnesses included an architect, a land planner, a traffic consultant, and a hydraulic engineer. During the presentations of each of these witnesses, several members of the village board, the plan commission, and the zoning board asked questions.
Following Meijer's witnesses, the mayor invited those audience members in favor of the project to speak. Two audience members spoke in favor of the development and over 40 individuals spoke in opposition to the proposed project. In response to a question from an opponent of the project, Mayor Ghilardi relayed that only a single representative would be allowed to speak on behalf of any group or organization and that the two-minute time limit would be enforced. Mayor Ghilardi further explained:
"Rather than try and debate with you the procedure we are going to try and follow, I tried to explain at the beginning of the meeting. My instructions would give everyone who wants to speak or had a written comment an opportunity to be heard. I think that is fair.
No matter what we do it is going to be characterized as being unfair. That being the case, we are going to proceed with the suggestion I made."
Various opponents raised individual concerns related to the project. Among these concerns, opponents questioned: (1) whether the proposed development would have a greater impact on traffic than the Meijer representatives predicted; (2) whether the development was inappropriate for the neighborhood and would decrease the quality of life; and (3) whether parking lot traffic, snow removal operations, and garbage compactors would create unpredicted noise pollution in the area.
A real estate appraiser also testified on behalf of the opponents. He stated that he was familiar with Meijer stores and had conducted economic-impact analyses on similar, unrelated projects. While the appraiser stated that he had not inspected the neighborhood itself, he opined that homes in the blocks surrounding the development would be adversely impacted not less than 15% and those homes within a one-mile radius would be adversely impacted 5% to 7%.
Many speakers made only general comments, but several identified questions they wanted the assembled bodies to present to the Meijer representatives. On several occasions, Mayor Ghilardi warned individuals that their time had expired or was about to expire.
Following the joint public hearing, plaintiffs filed a complaint, seeking, among other relief, an injunction to prevent a vote approving the annexation, rezoning, and special use. The trial court denied the injunction, reasoning that plaintiffs had failed to join all necessary parties. The village board subsequently adopted ordinances and approved resolutions annexing, rezoning, and granting a special use for the parcel. Plaintiffs then amended their complaint to add Meijer and the Abbey as defendants and added a claim sounding in quo warrantor. At plaintiffs' request, the trial court entered a temporary restraining order, halting site preparation, and held a hearing on plaintiffs' motion for a preliminary injunction.
During the hearing, plaintiff Robert Klaeren testified that he owned a home abutting the proposed development. Klaeren testified that he was concerned about the increased noise, light pollution, and storm water runoff that would be generated by the Meijer development. He also stated that his property value would decrease because of the development and that he feared village services such as snow removal and police protection would diminish in the remaining portions of the village because the village would be required to provide these services to a larger area as a result of the annexation.
According to Klaeren, he met with other village citizens prior to the joint public hearing and prepared a presentation. Klaeren stated that Mayor Ghilardi interrupted him before he could finish his presentation and that he would have asked questions of Meijer's witnesses had he been allowed to do so by Mayor Ghilardi.
Plaintiff Carle Wunderlich similarly testified concerning diminished property values and increased noise and traffic. Wunderlich further testified that he had prepared an exhibit of photographs of a Meijer store that he was prevented from bringing into the joint public hearing. According to Wunderlich, he built his home across the street from the proposed Meijer development after his investigation of the parcel's zoning lead him to believe that the Abbey would use the parcel for institutional purposes.
Ann Duker, a village trustee and former chair of the plan commission, testified on behalf of the plaintiffs. According to Duker, she was unaware of an ordinance authorizing joint hearings for the village board, the zoning board, and the plan commission, but that such hearings were held as a matter of custom and convenience. Duker testified that the plan commission made recommendations to the village board regarding subdivision plans and planned unit developments. Regarding the Meijer development, the plan commission had voted five to one to deny the recommendations and had adopted negative findings of ...