The Role of the Public at the Public Hearing
An Analysis of the Klaeren vs. Village of Lisle Case
by
Keri-Lyn J. Krafthefer
An appeal currently pending in the Illinois Supreme Court is being closely watched by municipal officials, developers and their respective attorneys. The case which prompted the appeal is People ex rel. Robert J. Klaeren, II., vs. the Village of Lisle, Meijer, Inc. and Saint Procopius Abbey, 316 Ill.App.3d 770, 737 N.E.2d 1099 (2nd Dist. 2000), and it concerns the manner in which public hearings on zoning matters are conducted by a city, village or town. Even before the Illinois Supreme Court rules, the Klaeren decision from the Second District Appellate Court has had a profound impact on how public officials are now proceeding with such hearings, not only in zoning cases but also in other instances where public hearings are required by statute. Because this issue may be of interest to municipal clerks, some of whom have already called our office with questions regarding the meaning of the Appellate Court ruling, we concluded it would be a good idea to explain that ruling and what could happen once the Illinois Supreme Court rules.
· ADJOINING PROPERTY OWNERS CHALLENGE VALIDITY OF ZONING HEARING
The dispute arose when residents who attended a zoning hearing at the Lisle Village Hall believed they were unfairly treated at the hearing. The public hearing was scheduled as required by law for the application of a retail store named Meijer which was seeking approval of its proposed project, as well as annexation and rezoning of its property for the retail development. After the hearing, the group of residents, owners of adjoining property, sought a preliminary injunction from the trial court in DuPage County to prevent construction of the store following the Village's approval of the project. Among other things, the plaintiffs alleged that the Village's failure to comply with required procedures invalidated the Village ordinances approving the Meijer project.
As the trial court evidence showed, a number of witnesses at the Lisle zoning hearing testified in support of the application. Those witnesses included experts such as an architect, a land planner, traffic consultant and a hydraulic engineer, all of whom were questioned by the members of the Village Board. The Mayor then asked the two individuals in support of the project to speak, and next invited persons opposing the development to speak. The Mayor had established certain rules to govern the speakers, which included a two-minute time limitation on statements and a rule that only a single representative from an organization with a large number of members present would be allowed to speak. Numerous individuals presented views, opinions and testimony raising concerns as to traffic, noise, pollution, impact on property values and general comments about the project. In several instances, the Mayor interrupted statements by opponents because the two-minute time limit had lapsed. Audience participation was then closed.
· TRIAL COURT RULES AGAINST THE VILLAGE
After hearing testimony about the zoning proceedings, the trial court concluded that the public hearing in Lisle was not properly conducted because the individuals in the audience were not given the right of cross-examination of the witnesses. Consequently, the trial court granted the injunction requested by the adjoining landowners. The court noted that although the Mayor had the authority to establish reasonable conditions on public participation, he could not deny the plaintiffs their right to question witnesses who testified on behalf of Meijer. In light of these deficiencies, the due process rights of the public in the zoning context had been violated.
· APPELLATE COURT AGREES THAT HEARING PROCESS DEFICIENT
In the appeal of the trial court ruling brought by the Village of Lisle, the Appellate Court affirmed the trial court. First, the Court distinguished between the legislative and administrative functions performed by public bodies such as the Village Board of Trustees. In its attempt to evade the authority of the Court, the Village claimed that as a legislative body, it had the ultimate authority to rule on the application and to decide how to conduct the public hearing process. The Court found this argument unconvincing, stating that "classifying a process as legislative does not insulate the underlying procedures from review." Klaeren, at 1108.
The Appellate Court also discussed the provisions in the Zoning Enabling Act found in the Illinois Municipal Code which state that various types of zoning relief may be granted only after a public hearing before a designated commission or committee. In the Court's view, the rights of the public turned on the definition of "hearing" and "public hearing" which mean "the right to appear and give evidence and also the right to hear and examine the witnesses whose testimony is presented by opposing parties." In its discussion of this concept, the Court cited other cases in which actions by municipal bodies were found invalid because the right of cross-examination by an adjoining landowner had been denied.
According to the Court, if testimony is simply heard but without opportunity for cross-examination, a "vital part" of the hearing is practically denied. These rights were found to apply regardless of the size of the municipality, despite the fact that the only mention of cross-examination in the statute is in reference to municipalities over a particular size. Thus, the Court concluded that the ability to conduct cross-examination during a zoning hearing is a right belonging to the public.
· WHAT ARE "REASONABLE RULES" FOR CONDUCTIVE HEARINGS?
In spite of this ruling, the Court acknowledged the authority of the official presiding at the public hearing to impose reasonable rules to assure that cross-examination is "appropriate and contributes to the fact-finding process or, in other words, is relevant and reasonable." Although the rules cannot exclude the right of cross-examination, they can reasonably restrict participation to matters that are "relevant" to the issue before the public body.
According to the Court, examples of reasonable rules would be:
1. a requirement that persons intending to participate must register prior to the public hearing;
2. a requirement that participants wishing to engage in cross-examination must state some special interest beyond that of the general public; and
3. statements of presumptions that certain classes of individuals have a right to cross-examination. Klaeren, at 1111.
Any rules, if imposed, must be reasonable based upon "the complexity of the issue, whether the witness possesses special expertise, whether the testimony reflects a matter of taste or personal opinion or concerns a disputed issue of fact, and the degree to which the witness' testimony relates to the factors to be considered in approving the proposal." Klaeren, at 1111-1112. In another comment, the Court suggested that the municipality may possibly limit the time granted to individuals to testify or cross-examine but should do so with care so that any limitations are not viewed as arbitrary and unrelated to the subject matter before the body conducting the hearing.
Whether the decision of the Appellate Court will be affirmed or reversed remains to be seen. For now, however, municipalities throughout the state are taking greater care in conducting zoning hearings. In some instances, chairmen of zoning boards or plan commissions, or the presidents and mayors of city councils and boards of trustees, have chosen not to impose any limitations whatsoever on members of the public wishing either to testify or to cross-examine witnesses for the applicant or witnesses who provide information on behalf of the municipality. In other instances, municipalities are attempting to implement some rules that will at least provide a degree of structure to the hearings so that they do not become unwieldy.
· SHOULD SIMILAR RULES GOVERN ALL TYPES OF PUBLIC HEARINGS?
Many municipalities have also concluded that the current Illinois Appellate Court decision might be interpreted to apply to public hearings of any kind. In these cases, members of the public are also given carte blanche as to the length of testimony or the extent of their questioning of other witnesses. Examples of such hearings where previous limitations have been eliminated are budget hearings and Truth in Taxation Act hearings, as well as public hearings required for TIF Districts.
This firm generally advises municipal clients and municipal clerks that reasonable rules can be applied both for zoning hearings and other types of public hearings. Caution in the application of any rules is urged, especially since the presiding officer often must decide at a moment's notice whether proposed testimony is relevant or reflects an appropriate special interest, or whether the time limit selected for participants offers them a sufficient opportunity to state their views and meaningfully question witnesses. In these instances, the municipal attorney can be of great benefit to the presiding officer by offering interpretations based upon the guidelines set forth in the Meijer case.
Even if the Illinois Supreme Court reverses the lower court and finds that the action taken by the Village Board was proper and did not invalidate the Meijer project, the Supreme Court may nevertheless articulate certain standards that apply to hearings on zoning matters. It is also possible that the Court will determine that such standards are applicable to required public hearings of any kind.
Until we hear from the Illinois Supreme Court, however, we must assume that the Meijer decision is prevailing law and act accordingly. Failure to observe those guidelines could result in litigation, or, at the very least, continuing challenges from adjoining landowners and other interested groups as to the manner in which the hearings were conducted. It certainly is not good for the municipality to get "bad press" as it is attempting to launch a desired project or take some other action that requires a prior public hearing.
As we eagerly await the outcome of the appeal, we are preparing for even longer evening meetings. As for municipal clerks who will have the dubious privilege of taking minutes of the expanded hearings, increased work can be anticipated.
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