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Fox Moraine, LLC v. United City of Yorkville
Citation: 2011 IL App (2d) 100017Docket: 2-10-0017
Court: Appellate Court of Illinois; November 8, 2011; Illinois; State Appellate Court
Original Court Document: View Document
Fox Moraine, LLC appealed the Illinois Pollution Control Board's (Board) decision affirming the United City of Yorkville City Council's denial of its siting application to construct a landfill in Yorkville. The Board found that Fox Moraine did not meet the statutory siting criteria outlined in section 39.2(a) of the Environmental Protection Act. The court ruled that the Board's findings were not against the manifest weight of the evidence and upheld that the denial of Fox Moraine’s motion for disclosure of a report prepared by the city’s attorney was a harmless error. The Board also properly limited inquiries into the city council members' mental impressions and found that Fox Moraine forfeited its claim regarding alleged bias of two council members. Legal representation included various attorneys for both the petitioner and respondents, with the judgment delivered by Justice Bowman, supported by Justices Hutchinson and Zenoff. The background reveals that Fox Moraine, partly owned by Donald Hamman, initially sought to site a landfill on unincorporated land near Yorkville. Following failed negotiations with Kendall County, the company pursued annexation of the land to engage with Yorkville officials, leading to significant public opposition and the formation of a group called Friends of Greater Yorkville. The case record is extensive, consisting of over 20,000 pages of transcripts. Fox Moraine submitted a siting application on December 1, 2006, under section 39.2(a) of the Act, addressing nine specified criteria. Following hearings in March and April 2007, the Yorkville city council denied the application on May 24, 2007, citing failure to meet specific criteria and unfavorable prior operating history. Changes in the city council occurred after a local election on April 17, where Mayor Arthur Prochaska was replaced by Alderman Valerie Burd, alongside the election of three new aldermen. The new council participated in the vote against the application. In response, Fox Moraine filed a timely petition with the Pollution Control Board, contending that the council's proceedings were fundamentally unfair due to alleged bias and political motivations among council members. The appeal emphasized that the council considered extraneous information, including a report by attorney Michael Roth, and that the Board misapplied the deliberative process privilege regarding council member bias. Fox Moraine specifically accused Burd of colluding with antilandfill advocates and claimed she expedited the vote without sufficient review of materials. Prior to her election, Burd had engaged the Wildman Harrold law firm to oppose the siting application. Fox Moraine alleges bias against several individuals involved in the landfill siting proceedings. It claims Spears conducted her own research, Sutcliff campaigned against the landfill, and Werderich and Plocher also ran on an antilandfill platform. Werderich reportedly stated that blocking the annexation would halt the landfill and helped establish FOGY after the annexation hearings. Both Werderich and Plocher received campaign funding from Milliron and Parrish, with Plocher making statements against the landfill's safety and indicating he would not approve its application. Fox Moraine argues that the Board erred in denying its motion to compel the disclosure of the Roth Report, asserting it was improperly excluded from the record despite being referenced in city council deliberations. It claimed a right to review all materials that informed the council's decision, contending there was no applicable privilege for the Roth Report similar to that of attorney Derke Price. Although Fox Moraine did not request an in-camera review of the report to identify nonprivileged content, it argued that the Board misapplied the deliberative process privilege by preventing inquiries into council members’ mental impressions. The Board found insufficient evidence to support claims of bad faith or closed-mindedness in the city council’s decision-making. While some members had opinions on annexation, there were no similar statements regarding the landfill application. The Board dismissed Fox Moraine's assertions of bad faith related to election conduct and noted that the council had all necessary materials prior to deliberations, countering claims about late submissions. It ruled that the Roth Report was protected by attorney-client privilege and that there was no evidence the council relied on it or conducted independent research. The Board criticized Fox Moraine for not filing its motion sooner, reinforcing that the Roth Report was privileged because it constituted confidential legal advice related to the landfill application. Fox Moraine contends that the proceedings regarding its application were fundamentally unfair and that the city council's determination, upheld by the Board, that it did not satisfy the Act's criteria, was contrary to the manifest weight of the evidence. Fox Moraine asserts that the Board did not apply its technical expertise when evaluating the evidence. The applicant claims to have met the specific criteria outlined in subsections (i, ii, iii, v, vi, and viii) of section 39.2(a) of the Act. However, the Board found adequate evidence supporting the city council's conclusions regarding the statutory criteria, ruling that the denial of the application was not against the manifest weight of the evidence. The Board emphasized that it was not obligated to reassess the evidence simply because Fox Moraine presented a conflicting interpretation. The Board affirmed the council's denial with minimal analysis and subsequently denied Fox Moraine's request for reconsideration on December 3, 2009, leading to a timely appeal by Fox Moraine. Under the Act, a developer of a pollution control facility, such as a landfill, must secure approval from the appropriate siting authority before proceeding. If the site is in an unincorporated area, the county board serves as the authority; if incorporated, the municipal governing body does. Approval from the Illinois Environmental Protection Agency is also required after local siting approval. An applicant must provide detailed plans demonstrating compliance with nine specific criteria mandated by section 39.2(a) of the Act, which include the necessity of the facility, protection of public health and safety, compatibility with surrounding areas, floodplain considerations, operational safety, traffic impact mitigation, and emergency response planning for hazardous waste management. A facility's siting approval requires consistency with the local solid waste management plan if such a plan exists, as per the Local Solid Waste Disposal Act or the Solid Waste Planning and Recycling Act. The plan in effect at the time of the application is the relevant guideline. Additionally, if the facility is situated in a regulated recharge area, it must comply with applicable Board requirements. The county board or municipality may evaluate the applicant's previous operational history and any violations related to solid waste management when assessing criteria related to the application. Public hearings are mandated for site applications, allowing individuals to submit written comments within 30 days of the final hearing. Opinions previously expressed by board or municipal members do not disqualify them from participating in the approval process. The siting authority must provide a written decision detailing the reasons for its choice. Conditions may be imposed to ensure compliance with section 39.2, as long as they align with Board regulations. If the siting authority does not act within 180 days, the application is automatically approved. The public hearing must create a record sufficient for appeal, and any review by the Board will consider the written decision, the hearing transcript, and the fairness of the procedures used. Fox Moraine claims it was denied a fair hearing due to the city council's prejudgment influenced by political motives, as some council members had publicly declared their stance prior to the hearings based on personal research and campaign platforms. Criteria (iv), (vii), and (ix) are not applicable to this case. The annexation of land was heavily debated in public hearings from late 2006 to January 2007, particularly concerning a proposed landfill. Key opponents included council members Plocher and Milliron, as well as Parrish and Werderich, alongside significant public dissent against the annexation due to landfill concerns. City council members maintained a focus on the annexation issue, assuring that landfill discussions would occur separately if necessary. The annexation was ultimately approved, with Aldermen Burd, Spears, and Leslie voting against it. Following this, Fox Moraine petitioned to vacate Sleepy Hollow Road, crucial for the landfill application. Despite public protests, the council approved the vacation after a January 23, 2007 hearing, during which the public was instructed to restrict comments to annexation and not the landfill criteria. Milliron accused the council of collusion in expediting the process to facilitate the landfill against public sentiment. Mayor Prochaska and other council members reiterated the need to keep discussions pertinent to annexation. Aldermen Burd and Spears voted against the vacation, citing concerns over statutory compliance and the need for more information. Public opposition to the landfill persisted into the siting application hearings, which began on March 7, 2007. Yorkville appointed Larry Clark as the hearing officer and retained special counsel Derke Price. Fox Moraine's motion to disqualify Burd and Spears due to alleged bias was denied due to lack of evidence. During the hearings, Price reported to Clark about threatening calls received by some council members, prompting Clark to warn the public against inappropriate communications, emphasizing the council’s impartial role in the proceedings. FOGY published advertisements urging local residents to oppose a proposed landfill, warning of negative consequences such as pollution, noise, and decreased property values. Numerous handwritten letters from residents expressed concerns about health risks, environmental contamination, and traffic issues related to the landfill. Public hearings allowed for oral comments, where participants shared similar fears and submitted articles from online sources. Milliron vocally criticized city officials, alleging collusion and bias in favor of the landfill after speaking with a proponent. Darryl Hyink raised concerns regarding the landfill's necessity and potential leachate issues, but his lack of expertise was highlighted during cross-examination. Public hearings concluded on April 20, 2007, with written comments accepted until May 21, when Price and Clark submitted recommendations for conditions if the landfill were approved. The new mayor appointed Roth as interim city attorney, and the city council convened on May 23 to deliberate on the application. Some council members expressed difficulty processing over 1,000 pages of newly submitted materials, leading to a discussion on whether to continue deliberations. Despite concerns regarding the volume of information, a majority voted to proceed with the discussion. Aldermen were allotted 20 minutes each to speak, with Sutcliff arguing that it was impossible to design a landfill that would not negatively impact property values. Spears assessed that Fox Moraine failed to meet all relevant criteria for the landfill proposal. She highlighted deficiencies in storm water management addressed by FOGY witness William Schmanski and indicated design errors by civil engineer Devin Moose, who accepted suggestions from Stan Ludwikowski. Spears expressed concerns about the unknown history of the proposed landfill operator and doubted the effectiveness of the property protection plan in minimizing impacts on property values. Plocher opposed the landfill due to traffic concerns and the risk of water contamination, emphasizing the potential health risks to his community, particularly for his brother with cerebral palsy. Leslie found that Fox Moraine did not satisfy several criteria but provided unclear reasoning, specifically opposing the landfill's siting on municipal land. Munns noted conflicting opinions from various attorneys regarding the criteria; he could not approve criterion (i) without specific conditions and was uncertain about criteria (ii) and (vi). Werderich criticized Fox Moraine's proposal, asserting that a landfill was unnecessary, unsafe, and incompatible with Yorkville's future plans, while predicting declines in property values and increased traffic. He referenced past odor complaints related to a nearby composting business and suggested that the application should be evaluated based solely on its merits, not any proposed conditions. Golinski observed that there appeared to be a majority of no votes on multiple criteria and questioned the likelihood of the Board overturning its decision. Besco acknowledged Werderich's insights and expressed a desire for further clarification from absent attorneys Price and Clark, while Roth advised that the council's decision should rely on the existing record, without further inquiries. Besco opted to defer his comments until he reviewed new materials. Munns and Burd debated the timing of a vote regarding a landfill application, with Burd advocating for a vote by May 24 and Munns arguing for utilizing the full six-day review period to avoid potential failures on appeal. Munns expressed concerns about the consequences of a hasty decision leading to an unresolved landfill issue. Burd acknowledged the aldermen's efforts, particularly praising Alderman Spears, and directed Roth to prepare a resolution for the next meeting. During the following meeting, Golinski evaluated the application, concluding that Fox Moraine did not meet criteria due to existing landfill capacity and raised concerns about potential design flaws, leachate leakage, and uncertainty regarding the landfill operator's reliability. He criticized the proposed traffic routing as impractical and found Fox Moraine's claims about property value impacts to be misleading. Besco expressed doubts about the council's authority in the matter and noted personal threats and harassment from opposition groups, while acknowledging the potential bias of several seated officials. Roth informed the council about three resolutions he prepared: to approve, to approve with conditions, and to deny with conditions. The council ultimately voted to deny with conditions, with Besco as the sole dissenting vote. In subsequent hearings, Yorkville revealed that some aldermen had received communications from the public but maintained they would remain impartial. Additionally, it was disclosed that Burd, Plocher, and Werderich had received campaign contributions from members of the opposition group, FOGY, with Werderich previously serving as its secretary. A 2007 article from the Sunday Beacon News reported on the views of Yorkville candidates regarding the potential addition of a landfill in the city. Mayor Prochaska declined to comment. Candidate Burd questioned the existence of a "safe, state-compliant landfill," while Werderich opposed the landfill, indicating he previously belonged to an anti-landfill group and also supported Burd. Plocher echoed this skepticism, stating he did not believe a safe landfill was possible, and he had previously collaborated with citizens against the landfill. Other candidates, including Sutcliff and Spears, expressed negative sentiments about the landfill, with Sutcliff asserting it would harm the city. Spears had a conditional view, suggesting that a perfectly safe landfill could be acceptable under specific circumstances. In hearings held in April 2009, Spears initially could not recall her voting on the landfill but later confirmed she voted against the vacation of Sleepy Hollow Road due to procedural concerns, not to oppose the landfill. She asserted she was misquoted regarding her public stance on the landfill and mentioned receiving constituent emails about it, although she couldn't remember the quantity. She distributed preprinted cards to constituents advising her not to discuss the landfill. Spears noted that her interactions with city attorneys were conducted in open meetings, which were documented. Parrish, a FOGY officer and campaign donor to Werderich, claimed he had not heard Werderich oppose the landfill, only the annexation, and supported Werderich due to his belief that city officials viewed the landfill as inevitable. He also donated to campaigns for Plocher and Burd. FOGY was established to oppose both the annexation and the landfill, as well as other development projects along Route 71. Burd, elected mayor on April 17, 2007, and sworn in on May 8, previously served as an alderman and voted against the annexation, host agreement, and the vacation of Sleepy Hollow Road. She stated she did not perceive the annexation as related to the landfill and was unaware of Fox Moraine's plans to file a landfill siting application contingent on the annexation. Burd decided to run for mayor during the annexation hearings and was supported by campaign committee members Werderich, Milliron, and Parrish, although she was not aware of their opposition to the landfill. Burd acknowledged Milliron's disruptive behavior during the hearings, which led to police intervention, but denied knowing about Plocher’s opposition to the landfill or Parrish's involvement with FOGY, despite recognizing Werderich as a member who resigned to assist her campaign. While denying receipt of campaign contributions from FOGY, she confirmed that Parrish donated money and raffle tickets for her campaign. In response to a question from a reporter about the viability of a "safe, state-compliant landfill," Burd expressed skepticism but denied running an antilandfill campaign. Before her swearing-in, she met with Wildman Harrold attorneys, intending to hire them to replace Wyeth, believing that Price represented the staff rather than the city. Sutcliff, who began her aldermanic campaign in 2006, created a website that reported on city council meetings, including coverage of antilandfill proponents, although she claimed it did not reflect her opinions. Her site directed readers to FOGY’s website but lacked contact information for Fox Moraine. Sutcliff remarked that the city might proceed with the landfill regardless of public sentiment but denied making an antilandfill statement. She criticized the fast-tracking of the annexation and encouraged public action against the landfill while promoting her candidacy with a commitment to vote against the annexation. However, after receiving advice from Spears to avoid public commentary on the landfill, she refrained from speaking on the issue and removed content from her website and newsletter. Sutcliff's website operated from January to April 2007, with ambiguity surrounding its removal. She acknowledged distributing anti-landfill campaign brochures before receiving advice from Spears but was uncertain about receiving campaign funds from FOGY or its members. On May 23, the council received significant materials, though Sutcliff could not recall if specific reports were included or if she voted on a resolution the following night. She stated she did not conduct independent research on landfills and admitted to being uninformed in her opposition to the landfill. Sutcliff expressed to the Beacon News that a landfill would negatively impact the city. Werderich announced his candidacy for alderman in late October 2006, co-founding FOGY shortly after the Fox Moraine property annexation. He noted public opposition to the annexation, believing it aimed to facilitate landfill construction. Though he resigned from FOGY to run for office, he remained linked to the group during his campaign. He criticized the city's handling of the landfill issue and claimed his campaign materials highlighted his early opposition to the annexation. In a council meeting, he remarked that the landfill hearings only presented one side of the debate. Although he felt misrepresented by the Beacon News regarding his views on the landfill, he did not raise concerns with the reporter. His campaign website included links to FOGY and other organizations. Plocher, who attended nearly all landfill siting hearings, did not recall making a specific statement at an initial annexation meeting. He had read transcripts of any hearings he missed and worked on Burd's campaign alongside other anti-landfill activists. Plocher confirmed receiving campaign contributions from Milliron and stated to the Beacon News that he believed no landfill could be considered entirely safe or compliant. A state-compliant landfill's establishment is complicated by cross-contamination issues, as explained by Munns, who also noted he lacked time to review new materials. Roth did not clarify the absence of Clark and Price during deliberations. Alderman Besco, the sole supporter of the landfill siting application, learned of Fox Moraine's plans shortly before annexation hearings, prompted by Burd's suggestion that the project would provide financial benefits to Yorkville. Despite initial support, Burd reversed her stance and opposed the annexation during a public meeting marked by significant community backlash. Besco reported receiving a threatening call and filed a police report, echoing Munns' similar experience. Public opposition was vocal, with Milliron, a frequent speaker, provoking a strong response from Besco, leading to his removal from the meeting. Besco commended Clark for effectively managing the hearings despite public pushback. Burd involved Price as the city staff attorney, and Besco testified at Fox Moraine's request. Moose observed that the Yorkville siting process was unusually prolonged, due to objections from FOGY's attorney and public disruptions. He acknowledged completing Fox Moraine’s application on December 1, 2006, aware of the impending April 2007 elections and the 180-day decision timeframe for the application. Moose conceded that Fox Moraine had opportunities to present evidence during the hearings. Charlie Murphy, project manager for Fox Moraine, highlighted his extensive experience with siting proceedings and noted the approval of a host agreement with Yorkville in September 2006. He recognized the public's hostility at the annexation hearings and clarified that the mayor emphasized the annexation's separation from landfill discussions. Murphy maintained that Fox Moraine was granted a full opportunity to present its case during the hearings, while expressing concern over perceived bias against the landfill from certain elected officials who campaigned on the issue. Fox Moraine initially sought to disqualify Burd and Spears at the hearings but did not file a disqualification motion for Plocher, Sutcliff, and Werderich after their election. James Burnham, a consultant for Fox Moraine, provided testimony aligned with Murphy’s. Hamman, a 51% owner of Fox Moraine, acknowledged awareness of the upcoming reelection of the mayor and some aldermen in April 2007 and recognized the potential controversy surrounding the landfill. After reading the April 16, 2007, edition of the Beacon News, he perceived biased statements from Plocher, Sutcliff, and Werderich regarding the landfill. Under Section 40.1 of the Act, if a siting authority denies approval, the applicant can appeal to the Board, which conducts a hearing with the applicant as the petitioner and the siting authority as the respondent. The petitioner bears the burden of proof, but the Board does not accept new evidence unless assessing fundamental fairness. The Board considers the written decision of the county board or municipality, the hearing record, and the fundamental fairness of the procedures used in the decision-making process. The standard of review for an administrative agency’s factual determinations is that they won't be overturned unless contrary to the manifest weight of the evidence. In cases involving mixed questions of law and fact, the agency's decision is reversed only if clearly erroneous, which is a standard positioned between deferential manifest-weight-of-the-evidence and de novo review. Determining fundamental fairness involves a mixed question of law and fact, thus applying the clearly erroneous standard. The siting authority's role encompasses both quasi-legislative and quasi-adjudicative functions, and the applicant's right to fundamental fairness includes procedural due process standards such as the right to be heard, cross-examine witnesses, and receive impartial rulings. Members of the siting authority are presumed to act fairly and objectively in their decisions. The presumption of impartiality in siting proceedings remains intact even if a decision-maker has publicly expressed strong views on related issues. To demonstrate bias or prejudice, a petitioner must show that a reasonable observer would conclude that the siting authority had prejudged the facts or law. Claims of bias are generally forfeited if not raised promptly during the original proceeding, as it is inappropriate for a petitioner to withhold such claims until after an unfavorable ruling. Ex parte communications between the public and decision-makers are acknowledged as inevitable due to the nature of these proceedings; however, a reviewing court will not reverse a decision based solely on improper communications unless the petitioner shows actual prejudice. Public sentiment alone does not establish prejudice, nor does strong public opposition render the proceedings unfair if the applicant has a full opportunity to present evidence. In the context of Fox Moraine's fairness arguments, the Board determined that the Roth Report was protected by attorney-client privilege. Fox Moraine contends that the Board did not adequately address whether the report contained information not present in the official record, which affected their ability to assess its relevance. The Board maintains it acted correctly, as the Roth Report was prepared in his official capacity as city attorney, and Fox Moraine failed to provide compelling reasons for its disclosure. The question of whether the attorney-client privilege applies is reviewed de novo, and the privilege exists to promote candid communication between clients and attorneys, with the burden of proof on the party asserting the privilege. The attorney-client privilege in Illinois is interpreted narrowly, with courts promoting disclosure to uncover the truth necessary for resolving lawsuits. Municipalities can invoke this privilege, but clients may waive it, either explicitly or implicitly. In the case of Yorkville, it was established that Roth was retained as city attorney to prepare the Roth Report regarding a landfill matter. However, it was not confirmed that the report was intended to be confidential, as city council members openly discussed it during deliberations, indicating that they treated it as part of the public record. Although the Board and Yorkville contended that waiver was not argued by Fox Moraine, the latter claimed that the council's public discussions amounted to a waiver of the privilege. The court previously stated that an implied waiver can occur when a client introduces issues that necessitate reviewing confidential communications. Although the council did not disclose specific statements from the Roth Report, their discussions indicated that they viewed it as non-confidential. Additionally, a related case, People ex rel. Hopf v. Barger, addressed the intersection of attorney-client privilege and the Open Meetings Act, concluding that the Act does not obligate governing bodies to conduct all consultations with their attorney in public, affirming that such consultations do not constitute a "meeting" under the Act. The court concluded that private consultations between a governing body and an attorney could undermine the principle of open decision-making, emphasizing the need for a public interest balance assessed on a case-by-case basis. In the specific case involving Wheaton, the court determined that a closed meeting was unnecessary since the city council was not privately consulting with its attorney, had others in attendance, and was not discussing potential litigation. The reasoning from the Barger case was deemed relevant, indicating that while Yorkville had the right to consult its attorney confidentially, discussing the Roth Report in open deliberations may have waived the attorney-client privilege. Yorkville contended that Clark and Price were retained under an ordinance requiring them to submit findings to the council, while Roth, as city attorney, was not bound by the same rule. However, the council's open discussion of the Roth Report suggested that it was treated as non-confidential. The deliberations were not mandatory, and the council was not obligated to discuss the Roth Report if it chose otherwise. It was argued that only one council member could not waive the privilege for the entire council, but the record indicated that multiple council members referenced the report, implying a collective waiver of privilege. Furthermore, there was no request from Fox Moraine for an in-camera inspection of the Roth Report to assess its evidentiary basis. The council's decision-making process did not reveal reliance on evidence outside the record. The council's waiver of privilege is acknowledged; however, the Board's ruling regarding the Roth Report is deemed a harmless error, as the report is essentially a memorandum of recommendations from another attorney. In Newton v. Meissner, it was held that errors in excluding non-privileged evidence do not necessitate reversal if the plaintiff suffers no prejudice. Fox Moraine contends that the Board incorrectly applied the deliberative process privilege, hindering its ability to investigate potential bias among council members, arguing that this privilege is “nonexistent” and citing People ex rel. Birkett v. City of Chicago, which indicates that while the privilege is recognized in federal courts, its adoption for municipalities should be determined by the General Assembly due to conflicting policy implications. The deliberative process privilege is intended to protect candid intra-agency communications during governmental decision-making, but it raises concerns about obstructing truth-seeking in legal proceedings and undermining public trust. Additionally, in Thomas v. Page, the court addressed whether Illinois recognizes a privilege for judicial deliberations, concluding that a limited judicial-deliberation privilege exists, contingent upon a four-part test to ensure confidentiality and assess the potential harm of disclosure against the benefits of transparency in litigation. The appellate court ruled that the deliberative process privilege established in Birkett does not apply to the current case, as Birkett involved the supreme court's refusal to extend the privilege to another branch of government. Instead, the judiciary has the inherent authority to safeguard its own decision-making integrity. The court recognized an absolute privilege for the justices’ law clerks. The Board asserted that a strong showing of bad faith or improper behavior is required before probing the decision-making process, finding insufficient evidence of such bad faith in the current case. While some aldermen shared opinions on annexation, no similar statements were made regarding the landfill siting application. The Board concluded that the actions of council members running for election did not constitute bad faith warranting a departure from the deliberative process privilege. Fox Moraine contended that the privilege should only apply to judges, not to council members acting in a quasi-judicial role. The court agreed, stating that the privilege recognized in Thomas applies to certain communications or documents, not to testimony about judges' mental impressions. Fox Moraine's requests for council member testimonies were considered improper under established law, and the specifics of the barred questions were not identified. The Board deemed comments made by aldermen during deliberations to be self-explanatory, negating the need for further inquiry. Additionally, Fox Moraine accused council members Burd, Spears, Sutcliff, Werderich, and Plocher of bias. The Board addressed biases concerning Burd, Spears, and Sutcliff, while determining that Fox Moraine forfeited claims against Werderich and Plocher by not raising them promptly during the original siting process, despite having prior knowledge of their potential biases. The Board acknowledged a lack of formal objection mechanisms but believed an objection could have been made at a previous council meeting. Fox Moraine's claims of disqualifying bias related to the Board's decision were deemed forfeited as they were not raised during the original proceedings, specifically at the May 23, 2007, council meeting. The law requires that such objections be made at the earliest opportunity, as established in relevant case law. Although Fox Moraine contended that it could not object because it was not allowed to speak at the meeting, the Board concluded that Fox Moraine had opportunities to submit a written motion or express its views during public commentary or deliberations, which it failed to do. Fox Moraine also argued that the Board should have considered its arguments despite the forfeiture due to potential injustice, referencing the E&E Hauling case where serious allegations of bias were considered despite being raised late. However, the court found that the allegations against the Board members in this case did not suggest bias as clearly as those in E&E Hauling, where there were significant financial conflicts of interest. Other precedents indicated that similar claims did not render proceedings fundamentally unfair. The conduct of the Board members, Werderich and Plocher, suggested they were not predisposed to support the landfill, and their comments did not imply prejudgment. Additionally, Fox Moraine claimed that Burd leveraged public opposition to the landfill for her mayoral campaign, aided by FOGY members, and subsequently hired Roth to draft a report recommending denial of the application. However, the court did not find the allegations against the Board members sufficiently compelling to warrant review despite the forfeiture. Fox Moraine contends that Burd expedited the vote on the landfill application, thereby preventing aldermen from adequately reviewing new materials. The Board acknowledged Burd's campaign committee included landfill opponents but found no evidence of opposing statements from the council members who voted. It emphasized that Burd, as mayor, did not vote on the matter, suggesting her potential bias did not influence the outcome since she had no voting power. Regarding allegations of collusion between Burd and Roth, the Board found no supporting evidence for Fox Moraine’s claim that Burd hired Roth to write a recommendation against the application. Burd indicated she interviewed Roth and other attorneys before her mayoral swearing-in and communicated her intent to recommend Roth afterward. Disputes over billing by Wildman Harrold prior to Roth's official appointment did not imply collusion, as Roth's engagement was anticipated based on Burd's authority to appoint a city attorney. Fox Moraine also argued that the council was rushed into a vote. The council faced a statutory deadline, and while many documents were submitted last-minute, fundamental fairness only required that the record be available for review, which it was, as over 1,000 pages were provided. Council members voted to delay the decision to review these materials, indicating Burd did not obstruct their ability to assess the information. Lastly, Fox Moraine accused Spears of bias for relying on external research rather than the record, arguing her comments about vinyl chloride and landfill safety indicated a lack of impartiality. Burd had praised Spears for her research, further emphasizing the concern over bias in decision-making. Fox Moraine argues that there is no supporting evidence for Spears' comments on vinyl chloride and claims that Fox Moraine's design is superior to the double composite liner system referenced by Spears. A review of the record reveals no independent research by Spears beyond questioning a traffic engineer, which was limited by Clark's admonition against discussing matters outside the record. Although Spears may not have accurately summarized certain criteria, there is no indication she relied on external materials for her conclusions. Fox Moraine's assertion that Spears received ex parte communications that led to prejudgment is unfounded, as the public opposition to the landfill was evident, and there is no evidence that the aldermen, including Spears, acted on these communications. Regarding Sutcliff, the Board concluded she had the right to run for office based on her dissatisfaction with current officials. Despite her prior opposition to the landfill and her withdrawal of campaign materials upon learning of her potential participation in the vote, the Board found no bias. However, Sutcliff's pre-hearing determination against the landfill and her subsequent actions raise questions about whether she prejudged the application. The Board's decision regarding Sutcliff's bias is questionable, particularly when compared to Plocher's statements during deliberations that misrepresented statutory criteria. The potential remedies for bias allegations against Sutcliff, Werderich, and Plocher have not been discussed, but Fox Moraine contends that a reversal is necessary. The conclusion argues against reversal, suggesting that disqualification of Sutcliff might be a more appropriate action, referencing a precedent from the City of Rockford case regarding disqualification of council members from voting due to bias. The Board disqualified four council members for wearing antilandfill buttons during a hearing, determining that the county's decision was fundamentally unfair due to significant ex parte contacts. These contacts included the county board members stating on the record that they had considered evidence outside the official record. The Board's ruling mirrored the City of Rockford case, where it vacated and remanded with instructions to disqualify members and include the ex parte contacts in the record for further hearings. In contrast to City of Rockford, the current case involved less severe misconduct; the council members did not explicitly acknowledge considering outside evidence, and their ex parte communications were less extensive. Although two council members made comments and distributed materials that could suggest bias, the other members maintained appropriate boundaries by informing constituents they could not discuss the landfill issue and adhering to the hearing procedures. Despite questioning the Board's conclusions regarding one member, Sutcliff, the overall proceedings were deemed fundamentally fair. The Board erred by denying Fox Moraine's motion to compel disclosure of the Roth Report, but this was considered a harmless error. Additionally, the Board appropriately rejected Fox Moraine's inquiries into the council members' mental processes and arguments regarding fundamental fairness. Fox Moraine contended that the Board's findings on siting criteria lacked evidentiary support, arguing that the Board failed to apply its technical expertise as mandated by precedent. The Board is required to review the record from the siting authority rather than create its own, utilizing its technical expertise to determine if the record supports the siting authority's conclusions. The standard of review is not altered; the Board evaluates the siting authority's decision under the manifest-weight-of-the-evidence standard without reweighing evidence. The case of Town. Country emphasizes that a reviewing court should defer to the Board's decisions rather than the siting authority's. The Board effectively used its expertise in examining the evidence, although it acknowledged that it focused more on summarizing party arguments than analyzing them within a legal framework. Nonetheless, this did not constitute a failure in its duty. A negative finding on any one criterion can defeat an application, as highlighted by precedent. Specifically, the Board found that Fox Moraine did not meet criterion (ii), which focuses on ensuring public health, safety, and welfare in the facility's design, location, and operation. Testimony from Daniel Drommerhausen, a professional geologist, was presented on behalf of Fox Moraine regarding this criterion, where he discussed aspects of geology and hydrogeology relevant to the facility's operation. The Board's decision was upheld as not being against the manifest weight of the evidence. Drommerhausen provided testimony about the geological testing for a proposed landfill site, indicating an 80-foot layer of low-permeability clay that serves as a natural barrier, exceeding Illinois EPA's permeability requirements by 83%. He confirmed the absence of earthquake threats due to the Sandwich fault line's stability over 286 million years and noted that modern landfills withstand major seismic events effectively. He defined an aquifer and explained that the Lemont formation, the site's uppermost aquifer, would restrict groundwater movement, enhancing site safety. Drommerhausen assessed the site’s natural characteristics, concluding that it would adequately protect groundwater even without a liner system, and emphasized that the proposed landfill would include a protective liner for additional safety. Moose, another expert, supported the site’s selection based on its geological benefits, low population density, and distance from sensitive areas. He discussed potential contamination sources—leachate and landfill gas—and described a composite liner system that exceeded regulatory requirements, incorporating a high-density polyethylene liner and leachate collection system. Moose also outlined a gas collection system that would incinerate landfill gas to reduce odors and convert it to electricity, along with a monitoring system designed to detect failures early and prevent issues with leachate or gas. Procedures for inspecting and screening waste deliveries were outlined to mitigate potential issues. Moose acknowledged during cross-examination that the application proposed relocating a tributary of Hollenbeck Creek, which faced opposition from various groups and a request for additional information from the Army Corps of Engineers. He stated that further studies would not be conducted unless the application received approval, citing inefficiency in investing resources at this stage. Moose also confirmed that the landfill design was predicated on the assumption that Sleepy Hollow Road would be vacated. Ludwikowski criticized the landfill design during public commentary, particularly regarding the insufficient number and placement of monitoring wells. He referenced a report from retired hydrogeologist Dennis Palumbo, which echoed his concerns and highlighted additional issues. Discussions with Illinois EPA geologists indicated that the design would not receive approval without proper downgradient monitoring wells. Ludwikowski warned that if the city council approved the design prematurely, any subsequent changes required by the EPA might not be reviewed by the public or council. Moose agreed to adjust the positioning of some wells in response to these comments. FOGY presented Schmanski, a civil engineer, who assessed the storm water management plan for Fox Moraine and found it exceeded regulatory discharge rates, particularly in the north basin, which would lead to creek overflow. While Schmanski had not previously reviewed landfill drainage projects, he recommended modifications to the drainage plan for better storm water distribution. Joyce Blumenshine, a retired librarian and anti-landfill activist, opposed the expansion of the Peoria Disposal landfill, labeling its operators as untrustworthy regarding contamination, though her testimony lacked factual relevance to the Fox Moraine application. Ron Edwards testified in favor of Fox Moraine, highlighting his extensive experience as a state-certified landfill operator and manager at Peoria Disposal Company, which had maintained a clean compliance record with approximately 350 Illinois EPA inspections over 14 years without violations. Peoria Disposal has received recognition for its positive operational performance across multiple facilities, including locations in Washington, Pike County, Indian Creek, and Clinton. Violations were detailed by Edwards, using PowerPoint slides: at Peoria, infractions included failure to cover and label containers in 1991, resulting in a $15,000 penalty; a land stabilization field violation in 1985 with a $45,000 penalty; and permit violations in 1988 and 1989 for accepting special waste and exposing refuse, each incurring a $500 penalty. At Washington, a 2002 sign violation was dismissed. Pike County faced two $500 penalties in 1988 for exposed refuse and litter collection failures, with five allegations dismissed. Indian Creek reported no violations. Clinton had multiple infractions, including two $500 penalties for exposed refuse and leachate seepage in 1993, and violations for refuse in standing water in 1989, with five administrative violations dismissed over ten years. An alleged 2001 violation for receiving hazardous waste was resolved through a supplemental environmental project after an unopened hazardous container was returned, prompting the implementation of a 100% inspection policy for unopened materials at Clinton and planned for Fox Moraine’s facility. Edwards noted that Fox Valley LLC, a newly formed entity with no landfill operation experience, would be operated by individuals with prior experience at Peoria Disposal, which holds a 20% stake in Fox Valley. Edwards assured that Peoria Disposal's involvement would ensure compliance, supported by a $500,000 performance guarantee and a $200,000 performance bond. The Board acknowledged evidence supporting Yorkville's decision regarding criteria related to the facility's operator and environmental concerns, particularly regarding the relocation of a tributary to Hollenbeck Creek and the liner system conditions proposed by Price. The credibility of expert witnesses was emphasized in assessing the situation, with Moose's testimony highlighting unresolved issues related to the tributary relocation identified by the Army Corps of Engineers. Fox Moraine contended that the landfill design's impact on Hollenbeck Creek was irrelevant to the city council's decision, as the Illinois EPA would address it. However, the court disagreed, emphasizing that the city council could indeed consider this impact, particularly regarding public welfare and compatibility with the surrounding area. The relocation of the creek was highlighted as potentially detrimental to wildlife and natural flow, affecting criteria related to public welfare and area compatibility, rather than simply fire or spill risks. Edwards presented evidence of various infractions at facilities operated by Peoria Disposal, raising concerns about the relationship between Peoria Disposal, Fox Valley LLC, and Fox Moraine, particularly since Hamman, the majority owner of Fox Moraine, had no landfill operating experience. The Board's affirmation on criteria related to public welfare and area compatibility was deemed supported by the evidence. Regarding criterion (viii), Fox Moraine argued it only applied to unincorporated land, asserting that the county's solid waste management plan did not pertain to its proposed site within Yorkville. However, the court rejected this interpretation, clarifying that criterion (viii) applies to counties with populations under 100,000 and those that have not filed a plan. The Board agreed that criterion (viii) was applicable and supported Kendall County's position that the May 2006 amendment to its solid waste management plan restricted landfill siting to unincorporated areas. Yorkville did not dispute the amendment's validity. Fox Moraine claimed the amendment conflicted with the Local Solid Waste Disposal Act, which grants municipalities the right to site landfills. However, the Board stated its limited authority to review the council's decision and did not assess the amendment's legality in relation to municipal rights. This situation paralleled a precedent in County of Kankakee v. Pollution Control Board. The appellate court ruled that the applicants lacked standing to challenge the county's amendment to its solid waste plan, and the city did not raise the issue, preventing the court from addressing the amendment's propriety. Yorkville potentially had a valid objection, as the amendment was enacted without its consent, and state law recognizes municipalities' authority to plan for solid waste disposal. The Solid Waste Act encourages inter-governmental cooperation, requiring counties to form advisory committees with municipal representatives and provide public notice during plan development, but Yorkville did not claim the amendment improperly stripped its authority to site a landfill. Consequently, the propriety of the amendment was not assessed. The court noted a lack of evidence regarding the Illinois EPA's stance on the amendment and acknowledged it as valid based on the record. Fox Moraine contended it met the amendment's criteria by asserting it "located" the landfill on unincorporated land, based on testimony from a senior planner. However, the court found this interpretation strained and aligned with Yorkville's understanding that the amendment clearly prohibited landfills on incorporated land. The Board's decision that Fox Moraine did not satisfy the criteria was upheld, as the plan's language was unambiguous. Although further criteria were not reviewed in detail, the court briefly mentioned them, highlighting that the Board's decision limited meaningful analysis of the proposals presented, including one related to the facility's necessity for local waste management needs. Kowalski conducted a needs analysis revealing a significant decrease in operational landfills in the service area, dropping from 28 to 10 between a previous date and 2006, with some still active having limited capacity. He argued for the urgent need for a new landfill, predicting that existing capacities would be exhausted by 2016 or 2017. Kowalski noted that the proposed landfill would only address a small fraction of the area's waste needs, with 80% still sent to other landfills. The city council disagreed, asserting that sufficient landfill capacity existed to meet needs for the next eight to nine years across Illinois, Indiana, Wisconsin, and Michigan. The Board concurred, finding that the evidence indicated available capacity and that mere convenience did not establish need. Questions arose about the Board's conclusion, as opposing evidence to Kowalski's claims was lacking. Hyink, during public commentary, argued against the necessity of a new landfill, but his information lacked reliability, and the Board maintained that the applicant must demonstrate an urgent need. The applicant must illustrate that the landfill is reasonably required based on area waste production and disposal capabilities. The Board overlooked that it would take nearly eight years from conception for the landfill to be operational. Additionally, Christopher Lannert testified on the proposed landfill’s location, emphasizing its design to blend with the agricultural landscape of the surrounding 13,000 acres, which primarily consists of agricultural land, with some residential and commercial uses. Lannert designed the landfill's landscape using native vegetation from the Yorkville area, believing it would minimize incompatibility with the surroundings and that future development could occur despite the landfill, as evidenced by similar growth in other areas with landfills. The relocation of a tributary to Hollenbeck Creek was deemed problematic, with the Army Corps of Engineers finding it environmentally disruptive. The Board concluded that it was the city council’s responsibility to evaluate evidence and witness credibility, stating that differing conclusions alone do not justify reversal. The Act requires the applicant to take reasonable steps to minimize impacts on property values but does not mandate a guarantee against such impacts. While the Board's finding related to the Hollenbeck Creek compatibility was upheld, concerns were raised about property value impacts, as some testimony implied a need to prove no negative effects, which exceeds statutory requirements. Regarding traffic impact, Michael Werthmann, a traffic engineer for Fox Moraine, indicated that the landfill would generate approximately 428 truck trips on peak days, which he deemed minimal given the road capacity and distribution over major routes. Access was planned via Route 71, with anticipated future road improvements, including to Route 47, necessary regardless of the landfill. Contrarily, Brent Coulter, a traffic engineer for Kendall County, argued that the proposed routes were inadequate for the expected heavy truck traffic, highlighting issues with narrow, two-lane roads and the landfill's distance from major expressways. Steve Corcoran, a traffic engineer for the Village of Plainfield, also testified about the landfill's potential adverse effects on downtown Plainfield. Plainfield aimed to reduce non-local traffic in its downtown area due to existing truck traffic capacity issues. Corcoran estimated that the proposed Fox Moraine landfill would generate 374 to 428 truck trips daily, translating to 15 to 25 trucks per hour during peak times. While Plainfield did not oppose the landfill outright, it sought to minimize its impact on the downtown area. The Board found sufficient evidence, primarily from Coulter and Corcoran, to support the city council's conclusion regarding traffic impacts. The Board rejected Fox Moraine's claim that Coulter and Corcoran misunderstood the standard of minimizing traffic effects rather than eliminating them. Coulter indicated that increasing truck traffic on already congested routes was problematic and that potential residential impacts warranted further examination. The Act does not require total traffic problem elimination, nor does it mandate detailed traffic plans, only that traffic patterns are designed to minimize impacts on existing flows. The Board’s analysis of Fox Moraine's proposed entrance design was deemed flawed; however, it was noted that the design included turn lanes and allowed off-peak truck access, which aligned with minimizing traffic impact. The landfill site is approximately 15 miles from downtown Plainfield, which further complicates the Board's conclusions about traffic patterns. Despite questioning some aspects of the Board's analysis regarding specific criteria, the findings regarding criteria (ii), (iii), and (viii) were upheld as not against the manifest weight of the evidence, leading to confirmation of the Board's decision. The conclusion affirmed that the Board's denial of Fox Moraine's motion to disclose the Roth Report was harmless, that inquiries into city council members' mental impressions were appropriately limited, and that other arguments regarding bias and fairness were correctly rejected. The Board's review standard was appropriate, and overall, its findings were upheld.