Fox Moraine v. United City of Yorkville
960 N.E.2d 1144
Ill. App. Ct.2011Background
- Fox Moraine sought local siting approval for a Kendall County landfill in Yorkville under 415 ILCS 5/39.2(a) after annexation protests and a host agreement; hearings occurred in 2007, council denied the application, and the Pollution Control Board affirmed.
- New Yorkville's council, including newly elected members after the May 2007 elections, deliberated and denied with conditions; the decision relied on several criteria, including previous operating experience.
- Fox Moraine appealed to the Board arguing fundamental unfairness (bias, improper reliance on outside materials, and improper privilege rulings) and that the criteria were not met.
- The Board upheld the council’s denial, finding no manifest error in the criteria results and that procedures were fundamentally fair overall.
- Fox Moraine challenged the Roth Report’s disclosure and the board’s application of deliberative privilege, arguing bias and new materials affected fairness.
- The appellate court reviews under the Act with deferential standards, ultimately affirming the Board’s decision as not against the manifest weight of the evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Fundamental fairness – bias and privilege | Fox Moraine argues bias and preconceptions tainted decisions | Yorkville/Board contends no preclusion and privilege properly applied | Roth Report waived privilege; bias insufficiently shown; proceeding fair overall |
| Roth Report disclosure | Roth Report should be disclosed as part of record | Report privileged and not required to be disclosed | Disclosure error was harmless; privilege properly limited |
| Forfeiture of bias arguments | Bias claims regarding Werderich and Plocher were forfeited | Board properly found forfeiture due to timing and opportunities to object | Forfeiture affirmed; bias arguments not grounds to reverse |
| Board’s use of technical expertise | Board should apply technical expertise de novo | Board reviews record with deference to siting findings | Board properly reviewed under manifest weight standard; deference preserved |
| Siting criteria – II, III, VIII | Evidence supports meeting criteria II, III, VIII | Evidence insufficient; findings not against weight of the evidence | Criteria II, III, and VIII not met; denial affirmed |
Key Cases Cited
- Land & Lakes Co. v. Pollution Control Board, 319 Ill.App.3d 41 (2000) (situs proceedings require a demonstrable record and proper review)
- Peoria Disposal Co. v. Illinois Pollution Control Board, 385 Ill.App.3d 781 (2008) (mixed questions of law and fact; Board’s authority to review fairness)
- Waste Management of Illinois, Inc. v. Pollution Control Board, 175 Ill.App.3d 1023 (1988) (fundamental fairness and ex parte contacts addressed)
- Town & Country Utilities, Inc. v. Illinois Pollution Control Board, 225 Ill.2d 103 (2007) (Board reviews under manifest weight with deference to expertise)
- Birkett v. City of Chicago, 184 Ill.2d 521 (1998) (deliberative process discussions; privilege limitations)
- Thomas v. Page, 361 Ill.App.3d 484 (2005) (judicial deliberations; limits on obtaining mental impressions)
- Lama v. Preskill, 353 Ill.App.3d 300 (2004) (attorney-client privilege narrowly construed; implied waiver)
- E & E Hauling, Inc. v. Pollution Control Board, 107 Ill.2d 33 (1985) (forfeiture and consideration of late-raised arguments)
- City of Rockford v. Winnebago County Board, 186 Ill.App.3d 303 (1989) (remedies for bias and ex parte communications in remand)