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Guest Column: ZBA asphalt decision made in advance?

September 21, 2011

By Nichole Larison Sammon
Fox Ridge Subdivision resident

The Winnebago County Zoning Board of Appeals’ final hearing on a special-use permit for William Charles Construction to build an asphalt plant in the old Schlicting Quarry on East State Street across from Showplace 16 was Sept. 14. The final verdict was 5-1 in favor of the asphalt plant; that would be the only news appropriate to report, unless you were present.

Walking into the meeting, both the opposition and the petitioner were handed recommended conditions for the asphalt plant for the East State Street quarry prepared by the Winnebago County Zoning staff — and they were originally dated Aug. 18 and Sept. 9!

These conditions delineated the provisions under which William Charles would be allowed to operate the asphalt plant. This document was created before the opposition had a chance to present its side of the facts in entirety and present closing statements!

This put in the opposition’s mind that the minds of the board and the county had already been decided, and additional testimony would only delay the inevitable. In retrospect, the opposition was told not to submit any item to the county before the meetings by the Winnebago County Zoning staff. One must ask the question, was this to ensure the “Staff Report” and “Conditions” were exempt from including opposition facts and figures? Not feeling discouraged, the opposition pressed on with testimony in the face of their civil rights being all but obliterated.

The meeting started out with questioning from the opposition as to why the county itself was not providing the court reporter to record the proceeds of the meeting. Why, in fact, was the petitioner, William Charles, paying for the court reporter, giving the impression the reporter was William Charles’ representative taking the notes for the meeting?

Chairman Brian Erickson did not want to answer either question, and our objection was ignored. Since the county admitted they were not in complete control of the verbatim minutes and admitted they themselves were not taking minutes of the meeting, it gave the appearance of impropriety. The county must be the main recorder and owner of the meeting records to guarantee the authenticity of the final transcript.

The objection to the recording of minutes was followed up with opposition testimony for approximately three hours.

Al Becker presented a homemade topographical map of the area showing that, in fact, the East State Street quarry and the Fox Ridge neighborhood share the same valley and will, therefore, share the same air. This includes fumes from the asphalt plant and the diesel engine running the asphalt plant. Becker also raised the issue of sound reverberation off the east side of the quarry, some 70 feet higher than the west side, projecting the noise from the asphalt plant operations right into the Fox Ridge neighborhood.

Dan Schneider, a life long Rockford resident, spoke about his family’s enjoyment of living in Rockford and his personal plans to help make Fox Ridge a neighborhood all of Rockford would want to live in before the asphalt plant plans were announced.

Controversy arose when Kathy Johnson wanted to read a letter from Heather Marrie, who was recovering from complications of cancer surgery. William Charles objected to the letter at first, and only after reading the letter was it allowed to be read into the record. One must keep in mind the procedures for the Zoning Board of Appeals states, “Opponents present their evidence, including others who wish to testify on their behalf.”

After this decision and two witnesses later, another opposition witness offered a letter to be read into the record from a resident near the Irene Quarry, owned by William Charles but leased to another party, which currently operates an asphalt plant.

Again, William Charles objected to the letter being read into the record. Their attorney, Bill Ross Shannon, objected to its entirety. Chairman Brian Erickson, again going against board procedures, in my opinion, agreed to not let it be read into the record.

The only witness William Charles wanted to cross-examine was Al Becker. They questioned him on qualifications and competency to make such a topographical map of the area. Mr. Becker stood his ground in talking about the science behind his map and his findings. He stated that if you wanted to find the worst possible place to put an asphalt plant, this is it, based on his measurements of the quarry and surrounding topography.

Once cross-examination was completed, Chairman Erickson did not seem to understand his own rules and procedures available to the public via the county website and asked William Charles for their rebuttal. According to the procedures, the closing for petitioner and opposition occur before rebuttal. This is not to say this is the correct order, but only to state the order of procedures per the county web site. Upon objection from the opposition on the order of the meeting, the Chairman asked guidance from the state’s attorney in the room. While this discussion was occurring, board members Ed Conklin and Tami Verstraete were discussing side business not on the record, but rather in whispering voices. This is quite possibly another violation of the Open Meetings Act. If so, this would be the second consecutive meeting in which the Zoning Board of Appeals possibly violated the Open Meetings Act.

Chairman Erickson decided the correct order of the meeting would be rebuttal followed by closing. All of William Charles’ rebuttal witnesses spoke to the board discounting opposition testimony without interruption from the opposition.

Following the rebuttal witnesses’ testimony, the opposition was given the chance to cross-examine the witnesses again. The next controversy arose when the attorney for William Charles, Tim Jagielski, responsible for writing and submitting the application for the asphalt plant and the attached supplemental narrative, was not allowed to be questioned on his written records submitted to the county. Objections were noted on the record, and the opposition was told to be seated.

During cross-examination of Dr. Laura Green by the opposition, Chairman Erickson decided to sidebar with Assistant State’s Attorney Sarah Hoey without stopping testimony or questioning. Again, this conversation was off the record in whispered voices.

About the time the night janitor’s vacuums started to make noise in the adjacent rooms, the state’s attorney changed her ruling and allowed the questioning from the opposition of the attorney for William Charles, Tim Jagielski. During questioning concerning William Charles’ ability to be a “good neighbor,” the Winnebago Landfill ownership was brought into question by the opposition, specifically the odors from the landfill and the Illinois EPA violations regarding such odors. Tim Jagielski emphatically stated on the record William Charles had stripped all ties from the Winnebago Landfill in February 2011.

Once rebuttal testimony was finished, controversy arose again. Again, Chairman Erickson seemed not to be familiar with the Zoning Board of Appeals’ procedures, publicly available on the county’s own website. Chairman Erickson stated only one person from the opposition could present a summary. According to the procedures, “The Petitioner may present a summary” AND “the Opponents may present a summary.” Notice the simple “s” at the end of “Opponent” — meaning plural, or more than one. After objection from the opposition and a reading of the procedure to the zoning board, Chairman Erickson agreed that the opposition could have multiple presenters but within a time limit of five minutes total for the opposition. The petitioner was given five minutes as well to summarize their side of the petition.

Once all closing remarks were completed, the board went into deliberations concerning the special-use permit. During deliberations, Winnebago County Zoning staff member Troy Krup presented an opinion as a fact to the board that if they set the sunset clause to five years instead of 10 years, William Charles would not be able to secure funding for the asphalt plant. This opinion was taken into consideration by the board in making their decision as recorded in the meeting minutes. This statement was not a fact presented during evidence by either party and is completely biased toward the petitioner in this case. Winnebago County Zoning staff members have no authority to make statements of opinion during dilations of a ZBA meeting.

The special-use permit passed by the board 5-1, with their modified recommendation and conditions for operation going to the Zoning Committee of the Winnebago County Board Sept. 28.

One must ask the question, with the ZBA possibly violating the Open Meetings Act on the record in the first meeting and appearing to violate it twice again in the second meeting, is their vote even valid? That question is for the attorney general of Illinois.

From the Sept. 21-27, 2011, issue

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