IN THE CIRCUIT COURT FOR THE EIGHTEENTH JUDICIAL CIRCUIT WHEATON, DU PAGE COUNTY, ILLINOIS PEOPLE OF THE STATE OF ILLINOIS, ex rel. ROBERT J. KLAEREN II, et al., Plaintiffs,
VS.
VILLAGE OF LISLE, et al., Defendants. No. 99 CH 179 MEMORANDUM OPINION AND ORDER This matter came before the Court for preliminary injunction hearing on the Petition of Plaintiffs/Relators ROBERT KLAEREN "KLAEREN--) and CARLE WUNDERLICH(“WUNDERLICH”).The Court heard testimony, reviewed evidence, and entertained arguments of counsel for all parties. FACTS Defendants Defendant ST. PROCOPIUS OF LISLE ABBEY CORP. (--ST. and PROCOPIUS--) it for and the
MEIJER, INC. ("MEIJER") filed a petition to annex a parcel of land to VILLAGE ("VILLAGE") rezone construction of a large retail store. In due course, notice of a public hearing was published, and also mailed to owners of property within 250 feet of the parcel in issue. The transcript of the July 9, 1998 hearing [admitted into
evidence as Plaintiff's Exhibit #5] reveals that the public hearing was convened at 7:30 P.M. and immediately I
adjourned to Lisle Jr. High School, where it was reconvened at 8:00 'P.M. as the joint hearing of the Lisle Village Board, Plan Commission and Zoning Board of Appeals. Among other prefatory remarks, the presiding Chair, Mayor Ghilardi, stated: Tonight is the public hearing phase of the process. This hearing is required by law. There will been (sic] no vote taken this evening. other than to adjouurn the public hearing. After the hearing the Plan Commission and the zoning Board will each independently review the input from this evening. Their first review will be at their next regularly scheduled meeting, approximately one month from now... [P. 22] After those meetings and reviews the Plan Commission and the Zoning Board, which will each make independent recommendations to the Village Board. [sic] . The Village Board will then undertake its review of the petitoner's request and raise any questions it has... [P. 23; emphasis added] This is public hearing. It is not a debate. There will be no attempt at tonight's hearing to answer any questions raised by the audience. Questions may be addressed during the review process I just described... [P. 24] To be fair to everyone in the audience, I ask that you limit your comments to two minutes each. I Will be the time keeper and will let you know when 15 seconds remain. [P. 26] The public hearing then continued with a presentation from the petitioners. At 10:20 P.M. the public comment portion of the public hearing began. Two witnesses at the preliminary injunction hearing testified that the temperature was between 950 and 980. No fewer that 47 persons spoke at the public hearing, which ended after 11:30 P.M. according to testimony at the preliminary injunction hearing. on at least 5 occasions, the Chair cut off the 2
speaker.1 On at least 8 other occasions, the Chair warned the speaker of the approaching 2 minute deadline.2 At the close of the public statements, the Chair stated at P. 205, 1. 13:
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... [T)he record will remain open for written comments
until 4:30 p.m. Friday, July 31, 19989. Written comments should be submitted... Copies of the comments received prior to that date will be made part of the public record...
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(emphasis added].
Further testimony at the preliminary injunction hearing from Ann Duker and Steven Stroh established that the subsequent meetings of the Plan Commission and the Zoning Board of Appeals were public meetings, not public hearings, and that no public participation was allowed. At the preliminary injunction hearing, there was testimony that Plaintiffs KLAEREN and WUNDERLICH received notice of the public hearing because their properties are located within 250 feet of the property sought to be annexed and rezoned. KLAEREN testified at the preliminary injunction hearing that he wanted to ask questions at the public hearing, but did not do so because the Chair had stated that there would be no questioning by the audience. WUNDERLICH testified that he attempted to bring posters of
a Meijer store in Indiana
(Plaintiffs' Exhibits 23, 24 and 25)
1
P. 137, 1.13; P. 143, 1.10; P. 151; 1. 18; P. 156, 1. 12; P. 172, 1 13.
2
P. 161, 1. 10; P. 168, 1. 13; P. 171, 1. 24; P. 172, 1. 13; P.
74; 1. 7; P. 178, 1. 5; P. 187, 1. 9; P. 190; 1. 22; P. 205, 1. 13.
3
into
the
hearing
room
to
show
to
the
joint
boards,
but
was
prevented from so doing by a Lisle police officer. ISSUES The primary issue before the Court is the adequacy of the public hearing. Resolution of this issue is dispositive of the right of Plaintiffs/Relators to a preliminary injunction. Public hearings are mandated by statutes in annexation and zoning matters. For example, ILCS Ch. 65, Sec. 5/11-131.1, dealing with special uses, states in pertinent part: "A special use shall be permitted only after a public hearing before some commission or committee designated by the corporate authorities... for annexations that would amend any ordinance
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Similarly, to
Section 1-12-4 of the Lisle Village Code mandates a public hearing relating P.U.D.1s, zoning, special uses, et al. Neither Illinois statutes nor the Lisle Village Code defines the requirements of a public hearing. However, the parameters of a public hearing have long been established in Illinois. The Illinois Supreme Court stated in Braden v. Much, 403 Ill. 507, 87 N.E.2d 620 [S.Ct., 1949]: We have previously defined the words "public hearing" before any tribunal or body, by the accepted definitions of lexicographers and courts, to mean the right to appear and give evidence and also the right to hear and examine the witnesses whose testimony is presented by opposing parties. The case in Illinois most closely resembling the case at bar is E & E Hauling, Inc. v. County of DuPage, 77 4
Ill.App.3d 1017 (2d Dist., 1979). In that case, Plaintiff was a business located- across the road from the petitioner in a rezoning hearing. Plaintiff's attorney was denied the right to cross examine the witnesses of the petitioner: An engineer was called by the petitioners and gave testimony as to present and proposed use of the property. [Plaintiff's] attorney then asked to cross examine this witness. This request was denied;however, the chairman said he would accept relevant questions. [Petitioner's] president also testified in favor of the petitions. Again a cross-examination requested by the [Plaintiff's] attorney was denied. (P. 1019] The Court first reiterated the requirements of a public hearing: The general rule is well established that a "'public hearing' before.any tribunal or bod 11 (emphasis added] means "the right to appear and give evidence and also the right to hear and examine the witnesses whose testimony - is presented by opposing parties. [Citation] It is also well settled that in the absence of a proper hearing an amendment to zoning is void. [Citation] ... Inasmuch as no particular method of procedure for the conduct of the hearings is provided by either the statute or ordinance, the hearing must be governend by established rules of procedure applicable generally to -administrative tribunals. [Citation] As noted above,the term 'hearing' means the right to appear and give evidence and the right to hear and examine witnesses. [P. 1021] After analyzing the proceedings at the public hearing, the Court concluded that
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... [W]e find that the procedures
at zoning board hearing must include the right to relevant cross-examination. [Citation]" Although the Court has been unable to find cases which are more directly on point, cases from other jurisdictions parallel the reasoning of the Court in E & E Haulin_q, supra, with regard to public hearings in zoning matters. 5
In New York, the Court in Branche v. Bd. of Trustees of Great Neck, 141 N.Y.S.2d 477, considered evidence admitted by affidavit against the petitioner, and stated: While a hearing of this nature may be more or less informal, and technical legal rules of evidence and procedure may be disregarded, no essential element of a fair trial can be dispensed with. The party whose rights are being determined must be given the . opportunity to cross-examine witnesses, inspect documents and offer evidence in explanation and rebuttal. Although the case at bar deals with the rights of persons other than petitioners in a zoning hearing, no case has limited the right of questioning solely to those seeking a zoning change. A Connecticut Court dealt with the rights of
neighboring land owners to participate in a public hearing. In Kloter v. Zoning Commission, 227 A.2d 563, the Court stated at 566: Interested parties, however, must be fairly apprised of the facts upon which the commission is asked to act and thus be provided with an opportunity for cross-examination... The cardinal purpose of a public hearing has been clearly enunciated by our highest court: -The purpose of the requirement of a public hearing is obvious. The alteration of zonal boundaries may seriously affect the property rights of those owning land within or near the area involved. Hearings play an essential role in the scheme of zoning and in its development. [Citation] They furnish a method of showing to the commission the real effect of the proposed change upon the social and economic life of the community. (Citation] Hearings likewise provide the necessary forum for those whose properties will be affected by a change to register their approval or disapproval and to state the reasons therefor. Mayor Ronald Ghilardi testified at length at the
preliminary injunction hearing about the conduct of public 6.
hearings in general, and the subject public hearing in particular. He stated that the public hearing was an "opportunity for the public but to provide no one input except on the what is essentially of the a legislative boards was process". He testified that the hearing was open to public comment, that members various allowed to question witnesses for the petitioners: "That's the way we've always done it.” He further testified that the members of the public could express their opinions, but that no one was allowed to cross-examine witnesses. He also related that at the hearing in questions, members of the public asked rhetorical questions and "negative pregnants". Counsel reveals that for the village alluded did in closing ask argument of to any are
"questions" raised by 16 members of the public, but the record those individuals not at questions witnesses, but merely raised areas of concern to them. The mayor testified. that "questions raised the public hearing addressed throughout the process", which included further public meetings of the various advisory boards. The Mayor related that often the petitioner responds to questions from the board members, "which may lead to other questions". However, the record reveals only that areas of inquiry were investigated, but no witnesses for the petitioners were ever subjected to questioning, much less cross-examination. Several witnesses testified that public meetings were held after July 9, 1998, at which no questions from members 7
of the public were allowed. Indeed, Mayor Ghilardi testified that there was no testimony about traffic impact until Ken Polach appeared at a subsequent public meeting. The hearing hearing Court and that is the cognizant the July 8, from 1998 the at transcript was of the public in
from
testimony
the
preliminary heated
injunction both
hearing
temperature and in emotion. The Chair had the right to impose reasonable conditions upon the participation of the public. But, consistent with the right to due process, and further consistent with state statutes the for the and local ordinances, the Both the Chair to and could not the totally deny Plaintiffs/Relators petitioners. right KLAEREN question
witnesses
WUNDERLICH
testified as to the close proximity of their properties to the subject site. As owners of property within 250 feet of the subject property, they were given notice by mail of the proposed annexation and zoning changes, Thus they were presumed to have a special interest in the proceedings. The desirability of questioning of petitioners and their
witnesses is borne out in the instant case by the votes of the Zoning Board of Appeals and the Plan Commission. After questioning of and further input from the petitioners' witnesses, both bodies voted 5-1 to deny the requested annexation and zoning. No person except a member of the Plan Commission, Zoning Board of Appeals or Village Board was allowed to pose a question to the representatives or witnesses of the 8
petitioners, ST. PROCOPIUS and MEIJER. This practice was condemned in E & E Hauling, supra, where the Court agreed that "a requirement of the board that attorneys desiring to cross-examine witnesses should ask questions through it would place an unjustified restriction on their rights." (P. 1022) Interested members of the public who wish to ask legitimate questions of witnesses certainly have no fewer rights than an attorney wishing to cross-examine witnesses. Both KLAEREN and WUNDERLICH testified that they wished to ask questions of the witnesses or present evidence. KLAEREN testified that he did not attempt to ask a question because the Chair, Mayor Ghilardi, had stated that questions would not be allowed. Following the precedent of E & E Hauling, supra, this Court finds for the purpose of the preliminary injunction hearing that the joint hearing of the Village Board, Plan Commission and Zoning Board.of Appeals was rendered improper by the joint boards' failure to allow any questioning or cross-examination by any person other than a member of one of the boards. Following North State, Astor, Lake Shore Drive Assn. v. City of Chicago, 131 All.App.2d 251, it is incumbent on the Court further to find for the purpose of the preliminary injunction that the improper hearing voids the adoption of the ordinances annexing and rezoning the subject property. This Court need not reach the issue of whether individual members of the public have the unfettered right 9
to cross-examine representatives or witnesses of a petitioner for zoning changes or annexation, nor what if any limitations on questioning or cross-examination may be imposed at a public hearing. Nor is this Court attempting to substitute its opinion for that of the elected and appointed officials of the Defendant VILLAGE OF LISLE as to the desirability of the proposed development on the subject property. This Court is instead finding that the have a likelihood of succeeding on the Plaintiffs/Relators
merits of their claim that the public hearing was rendered illusory by the denial of their right or the right of any other person to question the witnesses for the petitioners. As to the issue of irreparable injury, it is well settled that injury must be presumed when a municipality's legislative body operates in violation of both state and local law. Village of Westmont v. Lenihan, 301 Ill.App.3d 1049 [2nd Dist., 1999]. Defendants have presented testimony regarding damages that
will occur if they are wrongfully enjoined from proceeding with construction. However, Defendants were warned by the Court at a prior is not hearing by that if they proceeded the but with construction from that or ever the preparation for construction, they did so at their peril. The Court this their order prohibiting site, Defendant is ruling constructing for a public 10 proposed
Plaintiffs/Relators have a likelihood of succeeding on their prayer
hearing that complies with applicable statutes, ordinances and case law. Defendant VILLAGE OF LISLE has the option of renoticing a public hearing and conducting it in accordance with the statutes, ordinances and case law cited above. If such a procedure is elected, any damage which may occur if a preliminary injunction is later found to have been improperly entered will be minimized if not eliminated. Consequently, a bond in the amount of $5,000, as previously posted by Plaintiff/Relators, is adequate under the circumstances. FINDINGS AND ORDER For the reasons set forth above, THE COURT FINDS as follows: 1. Plaintiffs/Relators KLAEREN and WUNDERLICH have a clearly
ascertainable right, as persons owning within 250 feet of the subject property, to have any annexation of said property pursuant to the zoning or annexation of said property by the Defendant VILLAGE OF LISLE, conducted pursuant to the ordinances of the VILLAGE OF LISLE and the statutes of the State of Illinois and further pursuant to their constitutional right to due process, including notice and the right to question witnesses of the petitioner for zoning and annexation; 2. Plaintiffs/Relators KLAEREN and WUNDERLICH will sustain
irreparable injury, as presumed by law, if a preliminary injunction is not entered; 11
3. Plaintiffs/Relators KLAEREN and WUNDERLICH have established a substantial likelihood of success on the merits of their underlying claims; 4. Plaintiffs/Relators KLAEREN and WUNDERLICH clearly have
no adequate remedy at law; 5. The public interest weighs in favor of the
Plaintiffs/Relators; 6. A bond of $5,000 is adequate under the circumstances
presented at hearing on the petition for preliminary injunction. IT IS THEREFORE ORDERED as follows: 1. Defendants SAINT PROCOPIUS ABBEY and MEIJER, INC., are enjoined from taking any action on the subject property pursuant to government approvals issued or enacted on or after February 15, 1999, by Defendant VILLAGE OF LISLE, until further order of Court or until a proper public hearing is held pursuant to the statutes of the State of Illinois and its own ordinances. 2. Plaintiffs/Relators are required to continue in full force and effect the bond in the amount of $5,000.00 as security for the Defendants. ENTER: October 18, 1999 JUDGE 12