Plaintiffs in asphalt plant lawsuit push for summary judgment

April 7, 2010

By Stuart R. Wahlin
Staff Writer

Arguments will resume next month in a 2008 lawsuit filed in response to the Rockford City Council’s granting of a special-use permit (SUP) to Loves Park-based Rockford Blacktop Construction Company for the construction and operation of a hot-mix asphalt plant in its Mulford Quarry within 1,000 feet of homes.

Although the city was initially the sole defendant, Rockford Blacktop intervened as a co-defendant and successfully moved to toll limitations, meaning the clock has been frozen at April 9, 2008—the day the lawsuit was filed—regarding the special-use permit’s five-year sunset clause and other date-specific conditions.

Attorney Jim Hess, representing plaintiffs Kenneth Coonley, Daniel Frykman, Clifton Gano Jr., Alec Kaplanes and Patricia Michelsen, plans to present a memorandum and affidavits to support his motion for a summary judgment, filed in January, based on Count I of the complaint, which alleges objectors were denied due process.

“This Memorandum of Law and the supporting documents is, in effect, supporting our claim that we were denied our procedural due process rights in not being able to properly cross-examine,” Kaplanes explained.

After reviewing a written transcript of the proceedings, which was provided by the city more than a year after it was requested in court, plaintiffs stand by the assertion they were not provided an opportunity to cross-examine the witnesses.

The plaintiffs are asking 17th Circuit Judge Ronald Pirrello (D) to rule the SUP “illegal, unconstitutional and invalid,” and to enjoin the city from issuing a new permit.

The city, however, has denied that objectors were not afforded cross-examination of the petitioner’s witnesses.

Chronological notes by this reporter from the proceedings in question reflect a presentation of Rockford Blacktop witness testimony, followed by testimony from objectors. Rockford Blacktop was then provided an opportunity for rebuttal of objector arguments prior to a vote being taken.

When the company unveiled its plans for the asphalt plant in 2007, citing exhaustion of resources at its Nimtz Quarry operation, residents surrounding Mulford Quarry mobilized by forming a group called Neighborhood Environment & Traffic Safety (NETS) to oppose the project.

During a six-hour public hearing before the city’s Zoning Board of Appeals (ZBA) Dec. 5, 2007, NETS members and neighbors voiced concerns regarding potential contamination of hundreds of private wells sharing the aquifer, other health and safety issues, noise and devaluation of their properties.

Rockford Blacktop presented arguments from paid consultants and alleged expert witnesses, one of whom represented a company from which Rockford Blacktop was considering purchasing asphalt plant machinery and other components.

In a 5-1 vote, the ZBA recommended approval of the SUP, with conditions to address a number of the concerns that had been expressed. Alice Howard cast the sole “no” vote.

Jan. 28, 2008, Mayor Larry Morrissey (I) cast the affirmative eighth vote needed for approval of the SUP, joining aldermen John Beck (R-12), Lenny Jacobson (D-6), Nancy Johnson (D-8), Doug Mark (R-3), Joe Sosnowski (R-1), Ann Thompson-Kelly (D-7) and Carl Wasco (D-4). Aldermen Frank Beach (R-10), Victory Bell (D-5), Dan Conness (D-14), Pat Curran (R-2), Jeff Holt (D-11) and Bill Timm (R-9) voted “no.”

From the April 7-13, 2010 issue

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