Published June 28, 2007
ZBA rules it will hear Hinsdale Club
appeal but can't schedule hearing
Last week’s Hinsdale Zoning
Board of Appeals meeting was a cross between a civics
lesson and a trial as the board held a prehearing on The
Hinsdale Club appeal.
The first — and primary — issue was whether the ZBA had the
authority to hear the case. Chairman Tom Nelson opened
the discussion by stating it did.
“The law is clear, the practice is clear,” he said. “The court of
first instance, here the zoning board, determines its
own jurisdiction. To say otherwise or to practice
otherwise ... is to suggest an ability to shut the court
Attorney Scott Hardek, who represents Foxford LLC, which owns the
property at Ogden Avenue between Salt Creek Lane and Elm
“My client is not consenting to the jurisdiction of this body,” he
said. “The first question, before you require
application or litigation, is to determine jurisdiction.
That’s what my client is attempting to do. That’s what
we’re being foreclosed from doing.”
Hardek also complained that a ruling by the chairman on
jurisdiction was not on the meeting’s agenda.
“I have been ambushed a little bit in terms of a ruling on a
substantive issue of jurisdiction,” he said.
The issue of jurisdiction also came into play when Nelson refused
to grant Hardek’s request for a “special and limited”
appearance before the board.
“They are used only in a civil lawsuit where a sheriff is served a
summons upon someone who is a named defendant,” he said.
Hardek argued that such appearance requests are used by attorneys
who are challenging jurisdiction and said if he filed
for a general appearance, it would be viewed as a
consent to jurisdiction.
Hardek also took issue with Nelson’s “rhetorical flourish” of
residents’ constitutional rights to redress grievances.
“A failure of jurisdiction by this body does not ... prevent
anybody from redressing grievances,” he said. Village
board decisions can be appealed in circuit court.
All of these questions might be moot if a circuit court judge
decides the ZBA does not have the authority to hear the
appeal. The village board last week voted 4-2 on a
resolution to continue the lawsuit, which seeks a
The resolution was written with two options — to pursue the action
or to “voluntarily dismiss” the action and forward the
appeal to the ZBA.
As the board voted to pursue the lawsuit, “I was directed not to
transmit the record,” village manager Dave Cook said.
The ZBA is required to set a hearing within 60 days of receiving an
application and “all papers constituting the record.”
“We need that record,” Nelson said at the meeting. “We need to know
what was filed with the village. We need to know why the
village is not providing those records.
“We certainly need some discovery in this matter and we certainly
need access to what are public records and should have
been produced by the village.”
The board will hold another prehearing on this case at its next
regularly scheduled meeting at 7:15 Wednesday, July 18.