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Guest Column: Landfill lawsuit likely, part two

July 25, 2012

By Paul Gorski

I had a question from a resident regarding my guest column “Landfill lawsuit likely” (July 18-24 issue of The Rock River Times) and my guest column “County opens itself up to a landfill lawsuit” (May 9-15 issue of The Rock River Times). The question was: Couldn’t someone file a lawsuit against the landfill expansion even if the board followed all the hearing and meeting rules?

The answer to that question is “yes.” If the board followed all the rules properly, someone could challenge the landfill expansion based on the merits of the application. That is to say, whether the landfill is necessary and has met all the requirements of the application.

However, if a judge determines the board did not follow the hearing process or the board’s own meeting rules, the court could require the matter be sent to a new board for a new vote, or worse yet, sent back for new hearings.

Boards and councils sometimes have checklists they need to follow when considering such matters, and when they overlook these “procedural” checklists, their decisions can be challenged. Not following the hearing process rules opens the door for an easy procedural challenge that could be followed up by a challenge of the merits of the expansion application.

Why is this important? Because checklists are pretty easy to follow, and I question why boards sometimes forget to follow them. The polite answer is that the board members don’t know better, but the real answer may be that they are encouraged to move the process along.

I’ve maintained all along that the timing of other landfill-related votes combined with the focus on the economic impact of the landfill, which isn’t an item on the checklist, allow for an easy procedural challenge to proceed.

That said, I’m not an attorney, and I do not portray one on television. I have seen similar checklist-based challenges come back to boards, though, and this one looks similar to those other challenges. To my knowledge, a challenge to the landfill expansion has not been filed, but I do expect a challenge.

Paul Gorski is a Cherry Valley Township resident and a former Winnebago County board member.

From the July 25-31, 2012, issue

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