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Hinsdale, Illinois |


Published June 28, 2007

ZBA rules it will hear Hinsdale Club appeal but can't schedule hearing

  By Pamela Lannom

   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 house down.”
   Attorney Scott Hardek, who represents Foxford LLC, which owns the property at Ogden Avenue between Salt Creek Lane and Elm Street, disagreed.
   “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 declaratory judgment.
   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.



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