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Fox Moraine, LLC v. the United City of Yorkville

November 8, 2011


On Petition from the Illinois Pollution Control Board. IPCB Case No. 07-146

The opinion of the court was delivered by: Justice Bowman

JUSTICE BOWMAN delivered the judgment of the court, with opinion. Justices Hutchinson and Zenoff concurred in the judgment and opinion.


¶ 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.


¶ 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.*fn1 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 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.*fn2 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 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 non-privileged 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 that end, as Yorkville asserts, the Roth report is privileged communication because it was Michael Roth's confidential response to Yorkville's request for legal advice regarding Fox Moraine's landfill application."

¶ 9 In addition to arguing that the proceedings were fundamentally unfair, Fox Moraine argues that the city council's finding, affirmed by the Board, that it failed to meet the criteria contained in the Act was against the manifest weight of the evidence. Within this argument, Fox Moraine argues that the Board erred in failing to utilize its technical expertise in considering the evidence. Fox Moraine argues that the evidence supports that it met the criteria set forth in subsections (i), (ii), (iii),

(v), (vi), and (viii) of section 39.2(a).

¶ 10 The Board concluded that there was sufficient evidence supporting the city council's findings on the statutory criteria such that the decision to deny the application was not against the manifest weight of the evidence. The Board determined that, although Fox Moraine provided evidence to support its position, the Board was not required to reweigh the evidence or reverse the council's decision merely because the Board could conclude the opposite. With virtually no analysis on each issue, the Board affirmed the council's denial. Fox Moraine moved for reconsideration, which the Board denied on December 3, 2009. Fox Moraine timely appealed.


¶ 12 A. Landfill Siting Process

¶ 13 Under the Act, a party seeking to develop a pollution control facility, such as a landfill, must first obtain approval of the proposed site from the appropriate siting authority. 415 ILCS 5/39(c) (West 2006); Land & Lakes Co. v. Pollution Control Board, 319 Ill. App. 3d 41, 44 (2000). If the proposed site lies within an unincorporated area, the siting authority is the county board; if the location is within an incorporated area, the siting authority is the governing body of the municipality. 415 ILCS 5/39(c) (West 2006). If approval is obtained from the siting authority, the developer still must obtain permission from the Illinois Environmental Protection Agency to build the facility. 415 ILCS 5/39(c) (West 2006); Land & Lakes, 319 Ill. App. 3d at 45. An applicant seeking siting approval must submit sufficient details of the proposed facility demonstrating that it meets each of the nine criteria set forth in section 39.2(a) of the Act. Id. The nine criteria are as follows:

"(a) The county board of the county or the governing body of the municipality, as determined by paragraph (c) of Section 39 of this Act, shall approve or disapprove the request for local siting approval for each pollution control facility which is subject to such review. An applicant for local siting approval shall submit sufficient details describing the proposed facility to demonstrate compliance, and local siting approval shall be granted only if the proposed facility meets the following criteria:

(i) the facility is necessary to accommodate the waste needs of the area it is intended to serve;

(ii) the facility is so designed, located and proposed to be operated that the public health, safety and welfare will be protected;

(iii) the facility is located so as to minimize incompatibility with the character of the surrounding area and to minimize the effect on the value of the surrounding property;

(iv) (A) for a facility other than a sanitary landfill or waste disposal site, the facility is located outside the boundary of the 100 year flood plain or the site is flood-proofed; (B) for a facility that is a sanitary landfill or waste disposal site, the facility is located outside the boundary of the 100-year floodplain, or if the facility is a facility described in subsection (b)(3) of Section 22.19a, the site is flood-proofed;

(v) the plan of operations for the facility is designed to minimize the danger to the surrounding area from fire, spills, or other operational accidents;

(vi) the traffic patterns to or from the facility are so designed as to minimize the impact on existing traffic flows;

(vii) if the facility will be treating, storing or disposing of hazardous waste, an emergency response plan exists for the facility which includes notification, containment and evacuation procedures to be used in case of an accidental release;

(viii) if the facility is to be located in a county where the county board has adopted a solid waste management plan consistent with the planning requirements of the Local Solid Waste Disposal Act or the Solid Waste Planning and Recycling Act, the facility is consistent with that plan; for purposes of this criterion (viii), the 'solid waste management plan' means the plan that is in effect as of the date the application for siting approval is filed; and (ix) if the facility will be located within a regulated recharge area, any applicable requirements specified by the Board for such areas have been met.

The county board or the governing body of the municipality may also consider as evidence the previous operating experience[*fn3 ] and past record of convictions or admissions of violations of the applicant (and any subsidiary or parent corporation) in the field of solid waste management when considering criteria (ii) and

(v) under this Section." 415 ILCS 5/39.2 (West 2006).*fn4

¶ 14 The siting authority must hold at least one public hearing concerning the application. 415 ILCS 5/39.2(d) (West 2006); Land & Lakes, 319 Ill. App. 3d at 45. Any person may file written comments concerning the appropriateness of the proposed site, and the siting authority shall consider any comment received or postmarked not later than 30 days after the date of the last public hearing. 415 ILCS 5/39.2(c) (West 2006). "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." 415 ILCS 5/39.2(d) (West 2006). The siting authority's decision must be in writing and must specify the reasons for the decision. 415 ILCS 5/39.2(e) (West 2006); Land & Lakes, 319 Ill. App. 3d at 45. In granting approval for a site, the siting authority "may impose such conditions as may bereasonable and necessary to accomplish the purposes of [section 39.2] and as are not inconsistent with regulations promulgated by the Board." 415 ILCS 5/39.2(e) (West 2006). If there is no final action by the siting authority within 180 days after the date on which it received the request for site approval, the applicant may deem the request approved. 415 ILCS 5/39.2(e) (West 2006).

¶ 15 "The public hearing shall develop a record sufficient to form the basis of appeal of the decision in accordance with section 40.1 of the Act." 415 ILCS 5/39.2(d) (West 2006). Section 40.1 provides in part that, when reviewing a siting authority's decision, the Board shall consider the written decision and the reasons for the decision, the transcribed record of the hearings, and "the fundamental fairness of the procedures used by the [siting authority] in reaching its decision." 415 ILCS 5/40.1(a) (West 2006). We note that, when we review an administrative decision, we exercise special statutory jurisdiction and thus our review is limited by the Act, which allows us to review the Board's decision rather than the siting authority's decision. Town & Country Utilities, Inc. v. Illinois Pollution Control Board, 225 Ill. 2d 103, 122 (2007). With these basic requirements in mind, we consider the merits of this case.

¶ 16 B. Fundamental Fairness

¶ 17 Fox Moraine alleges that it was denied a fair hearing because the city council prejudged its application in light of political considerations instead of basing its decision on the evidence presented during the hearings. According to Fox Moraine, FOGY members worked for Burd's mayoral campaign, the new aldermen ran their campaigns on antilandfill platforms and declared how they would vote before evidence was ever presented, and some based their decisions on their own independent research and the Roth Report. Fox Moraine contends that the Roth Report should have been disclosed and was not protected by the attorney-client privilege.

¶ 18 1. Summary of Facts Relevant to Fundamental Fairness

¶ 19 The annexation was the subject of several public hearings from late 2006 through January 2007, and the issue was heated among the city council members and Yorkville residents. Plocher and Milliron were publicly against the annexation of several parcels of land because a landfill was proposed for the site. Parrish and Werderich also spoke out in opposition. Numerous members of the public also spoke out against the annexation because of the landfill rumors. The council members were quick to remind the members of the public that annexation was the only issue in question at the time and that, should a landfill or any other use for the land become an issue, it would be considered and there would be hearings at that time. Our review of the record discloses that the council members were careful not to discuss the landfill issue and focused solely on the annexation issue. Ultimately, the city council approved the annexation, with Aldermen Burd, Spears, and Leslie voting against it.

¶ 20 Later, Fox Moraine filed an annexation petition relating to the vacation of Sleepy Hollow Road, which was not annexed earlier with the other parcels but was a necessary parcel for the landfill application, already filed. After a hearing on January 23, 2007, at which the public protested the annexation, the city council approved the vacation of the road. During the hearing, the members of the public were advised not to discuss the particular criteria required for the landfill but to limit the discussion to annexation. Milliron took the opportunity to accuse the council of being "cozy" with the owners of Fox Moraine and of rushing the annexation process to get the landfill built, against the residents' wishes. Mayor Prochaska and council members again warned the public to limit comments to the question of annexation, to avoid problems regarding the fairness of landfill siting hearings if such hearings were held later. Spears stated that she was voting against the annexation because she believed proper statutory procedures were not followed, not because the public was against the landfill. Burd wanted more information regarding the value of the road. Ultimately, the vacation was passed, with Burd and Spears voting against the measure. It is duly noted that throughout the annexation proceedings, the general public sentiment was antilandfill and antiannexation. However, contrary to Fox Moraine's allegations pertaining to the annexation proceedings, the aldermen and Mayor Prochaska did not vocalize their positions on the landfill one way or the other.

¶ 21 On March 7, 2007, the hearings on the siting application commenced. Larry Clark was appointed by Yorkville to act as the hearing officer for the public hearings. Justin Wyeth was Yorkville's city attorney. Additionally, pursuant to a Yorkville ordinance on its siting procedures, Yorkville retained Derke Price to represent the city as special counsel. The ordinance provided that both Clark and Price would prepare memoranda of their recommendations at the conclusion of the hearings and that those memoranda be placed in the record during the public commentary period. Fox Moraine moved to disqualify Burd and Spears from the decision-making process on the ground that they were biased. That motion was ultimately denied on the night of deliberations because Fox Moraine did not present any evidence proving they had prejudged the application.

¶ 22 The public's antilandfill sentiment continued during the siting proceedings. On March 9, Price informed Clark that some members of the city council had received threatening phone calls at their homes, and Clark admonished the members of the public that any ex parte communications were inappropriate as the city council had a unique role, similar to that of a judge or a jury, in these particular proceedings. Clark admonished the public that any contacts made outside the hearings would jeopardize the process. Clark's balanced approach of handling the crowd and the attorneys continued throughout the proceedings.

¶ 23 During the course of the proceedings, FOGY ran ads, which are contained in the record, urging residents to write letters asking the mayor and city council members to vote against the landfill. The ads stated that, if the landfill were approved, Yorkville would get "an eternal pit of garbage," "constant noise," "garbage stink and methane gas," "sea gulls and turkey buzzards," "contaminated wells," and a new name, "Dumpville." Residents submitted numerous handwritten antilandfill notes at the proceedings, most citing concerns about potential health risks, water contamination, noise, smell, and traffic, along with the lack of need for a landfill to be located in Kendall County. On various days, several hours were set aside for the public to make oral comments, in addition to the written comments submitted. The gist of most comments related to fears of odors, environmental contamination, health risks, effects on property values, and traffic. Many residents submitted articles on landfills, which they found on the Internet. Some of the public comments drew attention to previous complaints about the property, which Hamman currently operated as a yard-waste facility.

¶ 24 Milliron was outspoken during the landfill siting hearings. He accused Bock and Leslie of personally talking to Hamman about the "pet landfill project." He accused Mayor Prochaska of already sealing the deal by virtue of signing a host agreement with Fox Moraine. He accused the city council as a whole and the mayor of collusion and bias toward allowing the landfill, because they had spoken to Hamman. Darryl Hyink, a retired industrial arts teacher, spoke at length expressing his concerns about the need for the landfill and the potential for leachate. Other than noting that he opposed the landfill, we do not go into the details of his presentation, as he had no expertise in geology or technical engineering. Counsel for Fox Moraine was afforded an opportunity to cross-examine Hyink on the fact that his opinions were not based on any actual expertise in the area of hydrogeology, geology, engineering, or solid waste management.

¶ 25 The public hearings closed on April 20, and written comments were accepted through May 21, 2007. On the last day of the public commentary period, Price submitted his memo, recommending that certain conditions be imposed if the city council decided to approve the application. Clark also submitted his memo, recommending approval with Price's conditions. During that time, Burd, as the newly sworn mayor, moved to appoint Roth as interim city attorney; the council approved the motion. On May 23, 2007, the new city council met to deliberate on the landfill application. The May 23 session was an open hearing for the city council to consider the evidence presented, Clark's and Price's recommendations, and any materials submitted during the public commentary period. Clark and Price did not attend, as they were not to deliberate; the session was for the council to deliberate. However, Roth was present.

¶ 26 Initially, Munns complained that they had just received the recommendation memoranda from Clark and Price. Munns said that he could not digest all the new materials in addition to all that he had taken in from the hearings. Golinski concurred, stating that "[s]ince Friday there's been a thousand pages of information filed. I don't know how we are expected to process that and deliberate in any manner today."

¶ 27 There was discussion to continue the debate, to afford time for the aldermen to review the more than 1,000 pages of posthearing documents. A decision was required by May 29, as the Act requires that a decision be made within 180 days or an application will be deemed approved. Spears stated that she wanted to deliberate now because, in reality, there was no way she could go home and read more than 1,000 pages before she started work the next morning. She felt prepared to decide based on her recollection of the hearings. Besco commented that it would be a challenge to review the new materials in one night. Besco, however, moved to continue the debate. Spears, Sutcliff, Golinski, Plocher, and Burd voted to deny that motion. Each alderman was then given 20 minutes to speak. Sutcliff spoke first, stating that there was no way a landfill could be designed to minimize impact on property values and that the proposed property protection plan did not cover farmland property. Sutcliff also believed that the truck traffic could not be minimized.

ΒΆ 28 Spears spoke out on each criterion, finding that Fox Moraine failed on each one. Regarding criterion (ii), she cited FOGY witness William Schmanski's review of the stormwater management deficiencies. She noted the fact that Devin Moose, a civil engineer who completed the siting application, accepted Stan Ludwikowski's suggestion to add wells, confirming Moose's design errors. She also took issue with the unknown history of the proposed landfill operator. Regarding property values, Spears did not ...

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