Update (5/1/23) time for the 5/2/23 court hearing has been changed to 2 pm.
LEGAL UPDATE
Good Morning. We are pleased to announce there is likely an end in sight in our five year long battle to stop the asphalt plant. We last posted that we had reached an agreement with the defendants in our lawsuit. The proposal (one we formulated) was to limit evidence to that which was presented at the 2018 zoning board of approval hearing. We believed the evidence presented by objectors was compelling, while inversely, the case presented by Northern Illinois Services Corporation was flimsy at best. While our side presented expert testimony which was unrefuted, NISC provided no expert testimony. Instead, they offered a presentation from their attorney, James Rodriguez. Mr. Rodriguez was unable to provide actual testimony, answering “I don’t know” over 100 times during cross-examination.
On 11-16-2022, Judge Fabiano and NISC agreed to our proposal. Judge Fabiano issued an order outlining the format for which our case would be presented to the court:
1. Our initial argument was filed on or about January 13, 2023.
2i. In response to our initial arguments, NISC was allowed a rebuttal which was filed on or about February 27, 2023.
3. Finally, we were allowed to respond to the NISC rebuttal. That final argument was filed on or about April 21, 2022.
Attorneys for both sides will present closing oral arguments in open court. Those arguments will be presented on May 2, 2023 at 9:30 AM. That hearing is open to the public.
It is possible a decision could be rendered that day, however, it’s very likely Judge Fabiano will take the matter under advisement and render a decision at a later date.
OUR ARGUMENTS
Our arguments centered around NISC presenting little actual evidence that asphalt production was 1) needed, 2) safe, and 3) of economic benefit to the community. We argued that objectors had little ability to cross-examine the petitioner. We highlighted that Atty Rodriguez didn’t know answers to some of the most basic questions, and that no expert witness appeared on their behalf. We informed the court that William Hoff, NISC’s main witness in the first hearing, was present and able to testify, but chose not to. We argued that every unit of local government was, and remains, against the building of an asphalt plant. We discussed the nearby availability of asphalt and that even if there were savings, no one knew what the savings would be, and there was no guarantee it would be passed to the consumer. We talked about the dangers of potential air and water pollution. We stressed the likelihood of offensive odors having an effect on the health, safety, and welfare of the community.
In their response, NISC minimized the fact that Atty Rodriguez was not a compelling witness. They mischaracterized and minimized the testimony of our experts. They reinforced that there would be adequate safeguards on both the part of themselves and governmental agencies. Given their reputation, we did not find their arguments persuasive.
After NISC rebutted our initial brief, we were given one final “bite at the apple.” In our surreply brief, we again stressed the lack of a substantive case presented by NISC. Atty Meason also addressed the issue of an attorney acting as both advocate and witness. We believe the arguments we presented and the strategy we employed give us the best possible chance at prevailing.
It's important to remember that NISC won at the ZBA level, and they won a 10-9 vote at the county board level. Regardless of our efforts, we are still fighting an uphill battle. It’s always difficult to overturn a decision that’s been made by any governmental entity, providing the process is legal and fair. We undertook this strategy because we felt it leveled the playing field as much as possible.
This has been a long legal fight, made longer by the COVID-19 pandemic, and exacerbated by the court house fire in 2022. Needless to say, the pandemic stopped Rockton Strong operations for over two years. It is our sincere hope that this will soon be resolved. We do not yet know if we’ll win, and we don’t know what winning looks like. We do know that June 14, 2023 will mark the 5 year anniversary of the asphalt plant approval. Every day without asphalt production in our community is one more day of clean air, clean water, and the ability to enjoy our property.
For those of you who would like to read the actual briefs, contact us and we will provide them to you.