Posted by Eric Scheidler on Wednesday, December 12th, 2007
Tonight: Live-blogging from the Zoning Board of Appeals (ZBA) hearing in the Council Chambers of City Hall. At the first hearing November 28, the ZBA set a time line and ground rules for the hearings. Tonight's hearing will deal with our Motion to Complete the Record.
Breaking News: This afternoon, our attorneys filed a Motion for Subpoenas [PDF], asking the ZBA to allow us to conduct expedited depositions of Zoning Administrator Ed Sieben, Building Official Herman Beneke and independent investigators Phillip Luetkehans and Richard Martens.
We want to depose these individuals to ascertain why the incorrect zoning designation was employed for more than two years on the Planned Parenthood site, and how Aurora city officials can claim that no zoning decisions have been made since October 2006.
We're asking for expedited depositions because we've learned that Planned Parenthood's occupancy permit is in truth only a temporary permit, set to expire in five days. In light of the zoning violations we've highlighted—especially the faulty zoning category used these past two years—we wonder how city officials can extend that temporary permit past the deadline.
Appeals, Motions and Responses: In advance of this evening's hearing, I offer this list of Appeals, Motions and Responses submitted by the parties to the ZBA thus far:
- FVFAPP Appeal to the ZBA, Oct. 2, 2007
- FVFAPP Amended Appeal to the ZBA, Oct. 19, 2007
- Aurora Motion to Dismiss, Nov. 19, 2007
- FVFAPP Motion to Complete the Record, Nov. 28, 2007
- Aurora Amended Motion to Dismiss, Dec. 5, 2007
- Aurora Response to Motion to Complete the Record, Dec. 7, 200
- FVFAPP Motion to Subpoena, Dec. 12, 2007
ZBA Hearing live blog coverage
6:55 p.m. The attorneys are all seated, along with most of the ZBA. There are at present 6 Planned Parenthood supporters and more than 50 members of Fox Valley Families Against Planned Parenthood in the galley, with more arriving every minute.
7:00 p.m. ZBA Chairman Margaret Truax has just called the meeting to order. The roll has been called. All ZBA members are present except one.
7:05 p.m. FVFAPP Attorney Tom Brejcha is explaining both our Motion to Complete the Record, filed Nov. 28, and our Motion to Subpoena, filed today. ZBA counsel Steve Andersson suggests that the Motion to Subpoena be put off for now, and the focus placed on the Motion to Complete the Record.
Brejcha goes on to explain that the City, in their Motion to Dismiss, is arguing that no zoning decisions have been made in over a year, but he quotes the City's outside counsel, Lance Malina, declaring in federal court that the City of Aurora was conducting a zoning investigation with a view to acting on that investigation—in other words, making zoning decisions.
7:10 p.m. Alayne Weingartz responds. She says the ZBA must determine whether they have jurisdiction over this appeal before deciding what the record of documents should be record be. She suggests our motive is to pack the record with every possible document that would relate to the legal theories that we're "inventing" in this proceeding.
She says that once the zoning administrator has made a zoning determination (in this case, in November 2006), there are no more "determinations" being made with regard to zoning. The authority for making decisions thereafter belongs to the Building Official, with any appeals going to the Building Code Board of Appeals.
Weingartz concludes by asking that this board rule that it does not have jurisdiction over this matter, or if it determines otherwise, that the zoning administrator's statement that all relevant documents are already in the record be accepted and no additional documents be entered.
7:15 p.m. Now Chris Wilson, for Gemini/Planned Parenthood responds briefly that he agrees with Weingartz that all relevant documents are already in the record.
Now FVFAPP attorney Peter Breen disputes some of Weingartz's caselaw and insists that there are relevant documents that must be included in this record, a years worth.
7:20 p.m. ZBA Commissioner Linda Cole asks whether there have been any decisions on what the zoning of this property is since November 2006. Weingartz answers no, and Cole says that's what she thought after reading the city's Motion to Dismiss, and remarks that she had to "look up a lot of words in the dictionary."
Brejcha asks leave to answer the question, too. He says we could not possibly disagree more with Weingartz. He says that in the past year, this property has been called in various investigations, studies, reports and so forth: B-1, B-2, B-3, and most recently (and finally correctly) B-B. Brejcha: "We come here with the right on our side . . . The zoning violations here are not technical, but egregious."
7:25 p.m. Now Donald Pilmer asks what Peter Breen meant when he said that the city tries to keep the ZBA from considering any appeals. Breen responds that, if you accept the city's logic, the ZBA is essentially stripped of any jurisdiction.
ZBA parliamentarian Steve Andersson announces that the board will go into executive session and make a decision on our Motion to Complete the Record. He expresses concern about the fact that the Motion to Subpoena was submitted only today and that they need more time to act on it and review; Weingartz says she does too.
Brejcha points out that the transcript from the federal hearing that was centeral to today's motion was only received today, so it could not have been submitted any sooner.
7:30 p.m. The ZBA votes to go into executive session to deliberate our Motion to Complete the Record.
8:05 p.m. The ZBA has returned from executive session. Chairman Truax notes that the ZBA considered only the Motion to Complete the Record (not the Motion to Subpoena), as that was what was agreed prior to this meeting.
Truax goes through the 7 different items of concern in our motion (A-G), and declares their decision on each one. They have agreed to include most of those items, and ordered the city to produce any such documents not in the record as yet.
Without going into A-G in detail, what we're looking at here are staff reports, early stage building plans, and statements made by city officials that would reveal the mindset of the city towards these events.
As of right now, before more careful review of the ZBA's written statement, it appears that the documents omitted were some e-mails from Planned Parenthood and other internal documents cited in the outside counsel reports that made very clear that Planned Parenthood was always the intended tenant of the property.
Andersson emphasized that the inclusion of any document in the official record did not necessarily mean it would be given any weight in the ZBA's consideration.
Long story short, we got almost all of what we wanted. Success!
8:10 p.m. Andersson explains that at the next ZBA meeting, there is the potential for consideration of two motions: the city's Motion to Dismiss, and our Motion to Subpoena. Presumably, our motion will only be considered if the city's motion is denied.
8:15 p.m. The meeting is adjourned.
If you'd like more pictures from this meeting, visit our flickr site here: