Posted by Eric and Matt on Monday, January 7th, 2008
Tonight: The next Zoning Board of Appeals (ZBA) hearing begins at 7:00 p.m. at Aurora City Hall (map). Wear your "Planned Parenthood LIES to You"—or pick one up when you get there.
If you can't be at the hearing, tune in here for live blogging starting about 6:45 p.m.
The ZBA will rule on three important motions tonight. First is the city's Motion to Dismiss—they want the ZBA to refuse to hear our appeal on the grounds that it's untimely and out of their jurisdiction. If the ZBA grants this motion, the hearings are over and we'll have to take our case to state.
If the ZBA denies the Motion to Dismiss, they will go on to rule on two motions from our side: A Motion for Subpoenas (which would allow us to interview key officials) and a Motion to Stay the Certificate of Occupancy (which would withdraw Planned Parenthood's occupancy permit, and require them to shut down). Exciting stuff!
Check out these brief videos for a taste of what tonight's hearing should be like:
- Peter Breen: The city is trying to strip the ZBA of all authority.
- Tom Brejcha: We have right on our side.
- Tom Brejcha: The city admits PP property is improperly zoned.
6:55 p.m. The ZBA members are seated, and I see about 50 pro-lifers in the gallery so far. More Planned Parenthood supporters than before—all of seven. Still awaiting the arrival of our attorneys, who are fighting through traffic from Chicago. [ERIC]
7:05 p.m. Peter Breen and Tom Brejcha have arrived. Commissioner Truax has opened the meeting and the roll has been called. City attorney Alayne Weingartz is accompanied today by outside counsel Lance Malina, who argued before federal judge Charles Norgle back in Septemer that the City should be allowed to conclude what he called a "zoning investigation" without issuing an occupancy permit to Planned Parenthood. My guess is he's here to contradict our contention that his words before Judge Norgle show the city was still making zoning determinations on through September. [ERIC]
Commissioner Truax reviews the previous decisions of the ZBA and then asks for the attorneys to comment on the Motion to Dismiss that they will rule on today. Weingartz introduces Malina and then summarizes her motion: the ZBA is not the proper body before whom we should make this appeal, and our October 2 filling is months—not days—after the last zoning decision was made.
Weingartz is arguing that only decisions by the zoning administrator (Ed Sieben) can be appealed, not decisions by anyone else in the city (such as, I suppose she means, Mayor Weisner's decision to issue the occupancy permit on October 1).
Weingartz also insists that what we're really asking is for the ZBA to overturn the November 2006 Planning and Development Committee's decision to approve the final plan. She ignores, of course, that that final plan was approved in the belief that a for-profit medical office building was coming in, not a not-for-profit health service like Planned Parenthood. [ERIC]
7:10 p.m. Chris Wilson, counsel for PP and Gemini started off by stating that his clients agreed with Alayne and the city's position. He said it has been a difficult process, but that there had been investigation of this matter and no impropriety was found.
He reminds the ZBA that the important date in this matter is October, 2006, when the original, and he claims only, zoning decision was made. Since the time for appeal has elapsed, the ZBA has no authority to deal with this matter.
He closes his comments by alleging that what our attorneys are upset with is not the zoning of the property, but the "constitutionally protected activities" that take place on the PP premises. He joins the city in asking that the case be dismissed on grounds of lack of jurisdiction. [Matt]
7:15 p.m. Brejcha starts out with clarity: "Mr. Wilson is wrong." He says this has nothing to do with Roe v. Wade, but with zoning . "Because they perform abortions they believe they're somehow immune or exempt from zoning laws that apply to every other building or citizen."
"Gemini is not in that facility now, another entity is in that facility. Gemini concedes that it concealed its identity." The assumption was that multiple tenants would occupy the building, and decisions were made on that basis.
Alayne Weingartz interrupts Brejcha to object to his speaking about zoning violations, since they are in a brief only filed today—he should only address the Motion to Dismiss. PP attorney Chris Wilson concurs. Brejcha responds that he's addressing Weingartz's contention that no zoning decisions have been made since late 2006.
Brjecha emphasizes that the City was making zoning decisions—about what the zoning category is, what kinds of medical procedures could be performed, etc. right on into October. [ERIC]
7:25 p.m. Brejcha continued by arguing that a BB district requires a change to the zoning code before a non-profit medical service could occupy this property. This is NOT a tertiary detail as the Weingartz and the ZBA are continually arguing.
PP got money from the state that will cost the state $2mil. over a few years. This makes it a significant zoning issue. This is not an insignificant detail.
Weingartz once again complains that this material was only handed to her this evening and should not be discussed. Ms. Truax agrees that this does not have to do with the issue at hand.
Brejcha brings it back to the core issue: the original zoning was for a for profit use. PP is a non-profit use.
Surrounding neighbors had the right to have notice and a hearing. Since it's BB, it was absolutely prohibited for them to be there unless, with the permission of the city council, they changed the city zoning code.
He continued that it's a matter of Aurora ordinances, it's a matter of Illinois law. This is the reason this board exists.
There was improper zoning which required hearings or a change in the zoning code. [MATT]
Brejcha: "To dismiss this appeal now, with all deference, would be an abdication of the responsibilty invested in this board." He goes on to quote Justice Brandeis: "The best disinfectant is sunlight." The ZBA should allow this appeal to go forward and investigate the zoning decisions made, when and why they were made, and whether the laws were upheld.
There should be no hasty decision, like the hasty October 1 decision to issue the occupancy permit, but a full airing of our objections, "raised in good faith", to the process surrounding Gemini/Planned Parenthood. [ERIC]
7:30 p.m. Now Truax asks the City and Planned Parenthood to respond. Weingartz insists that the City admits nothing, and no matter how many times Brejcha says they have, that doesn't make it so. Chris Wilson remarks that this has not been a hasty process, with more than 1700 pages filed and hours of hearings, etc. Nor has Gemini ever admitted they deceived the City. He urges the ZBA "not to take jurisdiction where there is none."
The ZBA adjourns to executive session to deliberate and make a decision.
8:05 p.m. Commissioner Truax resumes the hearing and asks Commissioner Cole to present the motion the ZBA will vote on.
Cole moves that the ZBA grant the city's motion to dismiss our appeal for timeliness (no zoning determination by the zoning administrator was made within the time required for an appeal, and deny the city's motion to refer the matter to the building official.
The ZBA votes unanimously in favor of this motion. They've shut us down. They adjourn, to applause from the cadre of Planned Parenthood supporters.
Summary: The ZBA shut down our appeal today. They agreed with Alayne Weingartz that only decisions by the zoning administrator can be appealed to them, and that therefore we were many months too late with our appeal.
What this means for us: We're taking our case to state court. Stay tuned!