In the shadow of a legal debate over whether residents had the right to cross-examine Meijer Inc. representatives during a public hearing two years ago, the Lisle Village Board has begun drafting changes to its procedures to include that privilege.
Lisle public hearings could take on more of a courtroom atmosphere if a process that trustees are considering is adopted. Under the proposal, both parties to an issue would be empowered to subpoena witnesses and documentation to assist them in presenting their case.
Witnesses would be subject to questioning by the governing board, the opposing side and members of the general public who meet the board-designated criteria. There would be no predetermined time limit for the questioning.
Unlike a courtroom, the process allows anyone in the audience to speak or make comments and then be subject to cross-examination.
Village Atty. Alice Clark Thode said the draft of the new procedures was guided by an Illinois Appellate Court ruling on how the village conducted its 1998 public hearing on a proposed 215,000-square-foot Meijer superstore.
“This is a draft and can be changed as the Village Board desires, as long as its changes are in compliance with the appellate ruling,” said Thode. “I drafted them very liberally to give the board a lot of discretion in what it decides is going to be the procedure.”
In October, the appeals court upheld a lower court’s decision halting construction of a Meijer store on 60.5 acres at 2665 Maple Ave. because of the procedures used during the public hearing. Meijer is appealing to the Illinois Supreme Court.
In a 2-1 vote, justices upheld DuPage Circuit Court Judge Bonnie Wheaton’s decision that the public hearing process leading to the store’s approval was invalid because the project’s opponents were not allowed to cross-examine the company’s witnesses.
She ordered a preliminary injunction halting construction until a lawsuit filed by a group of residents opposed to the store makes its way through the legal system.
The Appellate Court didn’t direct Lisle specifically to alter its procedures, but the ruling created a general statement of law, said Village Atty. Bob Kay.
“As a general rule, the court said all municipalities have to allow cross-examination,” Kay said. “So that is the current state of the law, and we want to comply with that even though it is being appealed.”
If the Supreme Court upholds the injunction, construction will remain suspended until a Circuit Court judge rules on a lawsuit that challenges the validity of the village zoning process and annexation agreement for the development.
The defendants are the Village of Lisle, Meijer Inc. and St. Procopius Abbey, the seller of the parcel.
The Appellate Court, like the lower court, cited previous case law, as well as specific state statutes, to reach its decision.
It termed “absurd” the defendants’ interpretation of the Illinois Municipal Code that the right to have subpoenas issued, to present witnesses and to cross-examine is only afforded to those participating in a hearing held by municipalities with populations of 500,000 or more.
And while it agreed that an official presiding at a zoning hearing needs to be given broad discretion to ensure that the cross-examination is “relevant and reasonable,” the court said the public also must be protected from “uninformed decisions.”
In other words, the court said a government body can’t create a procedure that excludes the right of cross-examination.
“In other words, although the board was not bound to listen to the plaintiffs’ concerns, it was bound to hear them before making its decision,” the court stated.
Under the proposal, Thode said, the main change would be the ability to cross-examine.
“It’s not just the asking of questions that is different; that’s not the issue. It’s cross-examining a particular witness,” she said.
But the guidelines on who gets to do the cross-examining and for how long are among the components that trustees will have to define.
Also, while the procedures could now empower either side to subpoena witnesses, the draft doesn’t indicate what might happen if a potential witness is unwilling to testify.
