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Gerwin v. Livington County Board

December 31, 2003


Appeal from Circuit Court of Livingston County No. 02CH47 Honorable Stephen R. Pacey, Judge Presiding.

The opinion of the court was delivered by: Justice Appleton


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 solid-waste 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' first-amended 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 - 1 -. 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.


Because the trial court dismissed the first-amended complaint pursuant to sections 2-615 and 2-619, we accept all well-pleaded 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, 700 N.E.2d 202, 207 (1998). We review the dismissal de novo. Glisson v. City of Marion, 188 Ill. 2d 211, 221, 720 N.E.2d 1034, 1039 (1999); Thomas v. Hileman, 333 Ill. App. 3d 132, 136, 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]committee 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 ...

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