Fox Moraine, LLC v. United City of Yorkville
2011 IL App (2d) 100017
Ill. App. Ct.2011Background
- Fox Moraine sought local siting approval for a landfill under 415 ILCS 5/39.2(a).
- Yorkville denied the application after hearings in 2007, citing several unsatisfied criteria and prior operating history.
- A new Yorkville city council, seated May 8, 2007, participated in the May 23 decision to deny with conditions.
- Fox Moraine petitioned the Pollution Control Board (Board) for review, challenging fairness and the sufficiency of the criteria findings.
- Board affirmed the council’s denial; Fox Moraine appealed, contending biases, improper record material, and misapplication of privilege rules.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Fundamental fairness of proceedings | Fox Moraine argues bias and prejudgment by aldermen and exclusion of the Roth Report. | Yorkville/Board contends no prejudgment and that materials were within record and properly considered. | Fundamental fairness not shown; proceedings deemed fair under the record and standard. |
| Disclosure of the Roth Report | Roth Report should be disclosed; no privilege if it affected proceedings. | Report privileged as attorney-client communications. | Roth Report disclosure was harmless error; privilege waived but error harmless. |
| Deliberative process privilege | Privilege improperly barred inquiry into council members’ mental impressions. | Privilege protects deliberations; inquiry was improper. | Board erred in applying privilege rationale; however, impact on result was not to reverse. |
| Siting criteria (ii), (iii), (viii) | Record supports meeting criteria (ii), (iii), (viii). | Board correctly weighed evidence; criteria not met. | Board’s determinations on criteria (ii), (iii), and (viii) were not against the manifest weight of the evidence. |
| Bias/forfeiture regarding Werderich and Plocher | Arguments of bias should not be forfeited due to timing. | Forfeiture applies when not raised promptly; later objections inadequate. | Board properly found forfeiture for Werderich and Plocher; ultimately impact on result remained. |
Key Cases Cited
- Land & Lakes Co. v. Pollution Control Bd., 319 Ill. App. 3d 41 (2000) (standard of review and record consideration in siting cases)
- Town & Country Utilities, Inc. v. Illinois Pollution Control Board, 225 Ill. 2d 103 (2007) (manifest-weight review with deference to Board’s expertise)
- Peoria Disposal Co. v. Illinois Pollution Control Board, 385 Ill. App. 3d 781 (2008) (mixed questions; fundamentals of fairness and review standard)
- City of Rockford v. Winnebago County Bd., 186 Ill. App. 3d 303 (1989) (remedies for ex parte contacts and fair process considerations)
- Waste Management of Illinois, Inc. v. Pollution Control Bd., 175 Ill. App. 3d 1023 (1988) (record availability and sufficiency for fairness review)
- Birkett v. City of Chicago, 184 Ill. 2d 521 (1998) (deliberative process privilege scope for municipal proceedings)