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Guest Column: Protester: Open Meetings Act violated at ZBA meeting on asphalt plant

August 31, 2011

By Nichole Larison Sammon
Neighborhood protester of proposed asphalt plant

I am requesting that an investigation be started regarding the events that transpired at the Winnebago County Zoning Board of Appeals (ZBA) meeting I was involved with at 5:30 p.m., Thursday, Aug. 18, at 404 Elm St., Rockford.

The meeting addressed William Charles Construction’s request for a special-use permit to operate an asphalt plant at the bottom of its East State Street quarry.

In my opinion, a direct violation of the Open Meetings Act is on record in the transcript for this meeting.

From the very onset of the ZBA meeting, William Charles’ attorney, Bruce Ross-Shannon, requested the procedures be altered. That request was granted.

William Charles was allowed to present their petition for the special-use permit, and all five witnesses for the petitioner were allowed to present their testimony and various report findings. Questions were not allowed until the petitioner’s entire list of paid witnesses and case were presented.

After the William Charles witness, Dr. Laura Green, a toxicologist, finished her testimony, the Zoning Board of Appeals Chairman Brian Erickson made an opinionated statement to the fact that he believed he had never had as knowledgeable a witness in front of him before. He said this on the record, before the board, and before the entire room of Winnebago County residents.

At no time did we, the opposition, make an outburst or interrupt the proceedings, other than to let the board know we could not hear the testimony presented. Amazingly, no microphones or PA were used in the crowded meeting, with more than 60 people crammed into an unairconditioned room. The petitioner’s paid witnesses talked in a lower octave, mostly directly facing the board, making it difficult to hear all that was said in testimony from the various witnesses.

Once the petitioner had finished presenting his case, the questioning of the petitioner’s witnesses began. The questioning of the witnesses was confusing to the opposition, as at times two witnesses were answering questions at a time, then it was one witness at a time. And throughout, the lawyer for the petitioner, Ross-Shannon, interrupted opposition questions and directly confronted the opposition, not the chairman, to make statements challenging the questions and the opposition resident asking the question. At no time did Chairman Erickson remind the petitioner to address the chairman directly, not the opposition, or reprimand him for his conduct.

Chairman Erickson, however, did reprimand the opposition for the way we were reading off our names and addresses, apparently too quickly for the chairman and the court recorder (paid for by William Charles), before beginning to ask questions of the petitioner’s witnesses.

Additionally, Chairman Erickson challenged the opposition many times, interrupting an opposition resident, before they finished asking a question about whether a question was being asked, rather than testimony. The constant interruptions from the chairman and the petitioner’s attorney, Ross-Shannon made it difficult for the opposition to ask all questions of the witnesses. These interruptions intimidated others in the audience into not asking questions. The witnesses refused to answer opposition questions based on relevance without a ruling from the chairman. At no time was the opposition allowed to question the petitioner’s Supplemental Narrative, supplied by William Charles, nor Ross-Shannon’s opening remarks.

Because of the late hour (around 11 p.m.), and once questioning from the opposition seemed to go on too long for Chairman Erickson (although he gave the petitioners all the time they needed to present their case and did not rush them), the chairman announced the board would leave the room for a conference.

This was the direct violation of the Open Meetings Act. Chairman Erickson did not make a motion for the reason to go into what was really a closed session. Chairman Erickson did not take a vote on going into Closed Session.

The entire board just left the meeting, went into a side room and closed the door behind them, going into Closed Session. Then, the chairman came back into the room and met with the petitioner’s lawyer and a couple of witnesses on sidebar, off the record, in a hushed voice, so no one could hear him for a period of a couple minutes. All of this occurred in the room in front of the opposition and the Winnebago County Assistant State’s Attorney Sarah Hohe.

The chairman then went back into the side room and closed the door again. The entire board emerged a few minutes later and took their seats.

The chairman called the meeting back to order. He then stated the meeting would continue. The chairman then listed the petitioner’s witnesses he would dismiss and would have no further questions from, even though the chairman had already dismissed those witnesses, and no further opposition questioning could take place. Previously, the chairman had made it clear to the room that their testimony was over, and all opposition questions had been asked.

We challenged the reasoning for the Closed session, as no reason was given to the opposition. The chairman stated he wanted to know how late the board members wanted to stay. We challenged that statement.

Then audience member Michelle Courier asked the ZBA whether they did not just violate the Illinois Open Meetings Act. Assistant State’s Attorney Sarah Hohe stated they had just violated the Open Meetings Act, noting: she didn’t catch it; she could be sanctioned; the ZBA could be cited, and the opposition should look up the procedures to do so on the internet.

We then asked whether minutes had been taken in the Closed Session. The chairman stated, “No,” but not to worry, he was only asking about dates of availability of ZBA members for a future continuance of these hearings and if some of the petitioner’s witnesses could be dismissed or recalled.

We asked the state’s attorney again what that meant, and for her to advise us of our rights at that point. She advised us that since clearly we know how to use Google, we could figure it out, but she more than likely would be censured.

I was also going to challenge the sidebar with the petitioner off the record while the session was still in effect, but decided not to, as the attitude of the state’s attorney and the chairman did not make me feel assured my rights were being protected at that moment.

As a Winnebago County resident, it is my civic responsibility to be well informed about the subjects concerning my town, my county, my state and my country. I take that responsibility seriously, and was well informed at the meeting of my rights and the Winnebago County procedures. To be chastised and rebuked by the state’s attorney and the chairman for understanding my rights and the procedures that should be followed in this proceeding is not acceptable.

After more than four hours, I, Nichole Sammon, was called as the first witness for the opposition. The chairman interrupted me in the first five minutes of my presentation to question the validity of the information I was presenting concerning our neighborhood demographics. I stated I believe information about the neighborhood in question adjacent to the property seeking the special-use permit is relevant. He let me continue. I was told to “hurry along,” along with numerous non-verbal hand and facial expressions to move my testimony along. Again, not once was this demand put on the petitioner or any of their witnesses in this meeting.

Along with the chairman’s demands to hurry along, the petitioner’s lawyer, Ross-Shannon, interrupted my testimony multiple times, addressing me directly, not the chairman, stating I had no ability to testify to the information I was presenting. His tone was meant to belittle and bully me. He questioned my credentials multiple times. I am a citizen of Winnebago County. I do not need credentials to present in a public hearing in Winnebago County. At no time did the chairman or the state’s attorney correct or refute the petitioner until multiple attendees contested and informed the chairman of his duties.

Once I had completed my testimony to the board, direct questioning from the board and petitioner started. This is in direct conflict with the precedent set by the board at the beginning of the meeting, whereby the petitioner was allowed to present their entire side of the petition before any direct questions of the witnesses. We, the opposition, still have many speakers to present on our side of the permit in question.

During direct questioning from the chairman, he asked me for my burden of proof on how my property value would not be affected. It is not on me to prove my property value would not be affected, it is the petitioner’s burden to prove my property value will not be affected. A couple of board members in questioning me also pushed me to prove the petitioner’s request would not affect my health. It is the petitioner’s burden to prove my health will not be affected. I was asked by one board member whether I thought it was William Charles’ fault that the intersection they will be utilizing is poorly designed and accident-prone. That question was out of line and out of order, as I was simply raising a concern as a citizen of Winnebago County regarding an already dangerous intersection and the addition of large amounts of heavy truck traffic. Again, neither the chairman nor the state’s attorney corrected the board member for misconduct.

It is clear to me from the questions asked from Chairman Erickson and other members of the board that they do not understand where the burden of proof lies in this permit request.

At the end of my testimony and questioning, the board stated it was too late in the evening to continue, and stated this session would reconvene Sept. 14.

I am quite concerned with what I have seen and been involved with concerning this special-use permit for William Charles. The rules and procedures established by Winnebago County and the ZBA are not being followed or adhered to, I would allege. Blatant bias for the petitioner is on record.

I would very much appreciate your looking into this matter.

Nichole Larison Sammon is a resident of Fox Ridge Subdivision, which is just to the west of the proposed William Charles asphalt plant. The Editor & Publisher of The Rock River Times Frank Schier was present at this ZBA hearing and proofread and edited this column.

From the Aug. 31-Sept. 6, 2011, issue

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