Environmental Register – November 2011
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The Second District was “inclined to agree with Fox Moraine” that the Birkett and Thomas holdings do not warrant
extending the deliberative-process privilege to the city council. Op. at ¶ 72. However, the deliberative-process
privilege recognized in Thomas “applies to discovery of certain types of communications or documents, not to
testimony of the mental impressions of judges.” Op. at ¶ 73. Fox Moraine did not seek the production of documents.
Id. Rather, Fox Moraine sought to have the council members “testify regarding their processes in reaching their
decisions,” which, as Thomas noted, “is not allowable in well-settled law.” Id. Therefore, the Second District
concluded that “we agree with the Board’s decision to bar inquiry into the council members’ mental impressions but
note that the Board’s rationale invoking the deliberative process privilege under these facts is misplaced.” Id.
Bias
Fox Moraine argued that certain city council members were biased, causing them to prejudge the siting application,
and that the Board failed to apply the proper standard to decide council member bias. Op. at ¶ 5. Initially, the court
observed that a claim of disqualifying bias must be raised at the original proceeding, i.e., at the city council. Op. at ¶
75, citing EandE Hauling v. PCB, 107 Ill. 2d 33, 38-39 (1985). Fox Moraine maintained that the Board’s finding of
forfeiture by Fox Moraine as to council members Werderich and Plocher was in error, because they were not seated
until after the close of the public hearing. Op. at ¶ 75. The Board found that Fox Moraine’s arguments concerning
these council members’ involvement in FOGY and their anti-landfill activities at council meetings predated the
election and that Fox Moraine accordingly had knowledge of their potential bias prior to the council’s siting
decision. Op. at ¶ 74. The court agreed with the Board that because Fox Moraine made no attempt to submit “a
written motion immediately after the election, during the public commentary period or at the deliberations meeting,”
the bias arguments were forfeited. Op. at ¶ 75.
As to the alleged bias of the newly-elected mayor Burd, according to Fox Moraine Burd colluded with anti-landfill
proponents, and her mayoral campaign committee was staffed by FOGY founders. Op. at ¶¶ 5, 77. The court,
however, could not see how any potential bias of Mayor Burd would affect Fox Moraine “when she had no vote in
the matter.” Op. at ¶ 78. Fox Moraine also asserted that Mayor Burd, among other things, “hastened the vote to
force a premature decision, denying the aldermen an opportunity to review the new materials.” Op. at ¶ 77. The
court observed, however, that while numerous documents were filed on the last day of the public comment period,
“fundamental fairness has been held to require only that the record be made available for review by the entire
council prior to voting,” not that the council members actually review the materials in their entirety. Op. at ¶ 79,
citing City of Rockford v. County of Winnebago, 186 Ill. App. 3d 303, 311-13 (2nd Dist. 1989); Waste
Management of Illinois, Inc. v. PCB, 175 Ill. App. 3d 1023, 1044 (2nd Dist. 1988).
Given the anti-landfill statements and website of council member Sutcliff, however, the Second District found
“questionable” the Board’s rulings that her bias was not established. Op. at ¶¶ 81, 84. According to the court, a
disinterested observer could conclude that the council member prejudged the application. Op. at ¶¶ 81, 83.
However, the court stressed that reversal (i.e., siting approval), a “harsh result” advocated by Fox Moraine, would
not have been required. Op. at ¶ 82. Instead, the proper remedy would have been to disqualify the council member
in question, which “would still leave a majority of the council members voting against the application.” Op. at ¶ 84.
After the Second District criticized the Board’s order as “virtually void of any critical analysis,” leaving the court
“to ponder how the Board reached its conclusions,” the court ruled that the Board’s decision was not clearly
erroneous. Id.
SITING CRITERIA
Court’s Standard of Review
The court applies the “manifest-weight-of-the-evidence standard” in reviewing the Board’s decision affirming the
city council. Op. at ¶ 87, citing 415 ILCS 5/41(b); Town and Country Utilities, Inc. v. PCB, 225 Ill. 2d 103, 119,
123 (2007). The Board must review the local siting authority’s findings on each criterion, but “a negative finding as
to one of the criteria is sufficient to defeat an application.” Op. at ¶ 90, citing City of Rockford, 186 Ill. App. 3d at
316. The court could therefore “confirm the Board’s decision based on any one of the criteria.” Id., citing Town and
Country, 225 Ill. 2d at 125.
Board’s Standard of Review and Technical Expertise
Before turning to the specific criteria being contested, Fox Moraine, citing Town and Country, 225 Ill. 2d at 120-23,
argued that that the Board failed to apply its technical expertise in examining the local record. Op. at ¶ 88. The
Second District observed that under the Illinois Supreme Court’s Town and Country decision, even though the
