Grace Hall - Doomed?

According to the City Attorney's office, the November 10th Public Hearing of the Woodstock Historic Preservation Commission was a valid Public Hearing.

On November 12 I wrote about the questions in my mind surrounding this meeting.

You may remember that prior Public Hearings of the Woodstock Plan Commission were conducted in a different manner. Anyone wishing to speak at the Public Hearing was first sworn by an attorney from the City Attorney's office - sworn to tell the truth. As I recall, not sworn to "tell the truth, the whole truth and nothing but the truth"; just sworn to tell the truth. We who are picky about language will say there is no difference. You either tell the truth or you don't.

The opinion of the City Attorney's office about the November 10th Public Hearing, as relayed to me via a member of the Historic Preservation Commission, was "...Rich Flood's office has said that while sworn testimony before HPC would have been preferable it is not legally required nor does it render the proceedings defective. ... he cited a legal precedent that since neither WCLS nor HPC objected during the public hearing to the failure to administer oaths the issue is effectively waived..."

Why was sworn testimony on the Woodstock Christian Life Service's request for Special Use Permit taken by the Plan Commission, but not taken by the Historic Preservation Commission when a Petitioner submitted a request for Landmark status of Grace Hall? At two meetings this past summer an attorney representing the City attended Plan Commission meetings and was available to advise the Plan Commission on the conduct of the public hearings.

Yet at the first Public Hearing of the HPC on the Landmark issue, a younger member of the City Attorney's staff was sent as messenger to advise the HPC to concur with the Objector's (WCLS) request for continuance. And that he did. With the result that the HPC took a nap for a month, in spite of the fact that WCLS would ask the City Council on the very next night to approve its plan - which the City Council did!

And then, on November 10, when the Public Hearing resumed, no legal representative of the City was present.

So, on these points:

1. sworn testimony before HPC would have been preferable
2. it is not legally required
3. nor does it render the proceedings defective.
4. ... a legal precedent that since neither WCLS nor HPC objected during the public hearing to the failure to administer oaths the issue is effectively waived

If sworn testimony would have been preferable, then why wasn't the Public Hearing of the HPC conducted in the "preferred" manner? Obviously, the City saved money by not having to pay for an attorney to attend and advise the HPC. The City also skipped the expense of audio-recording the Public Hearing, and it skipped the expense of a court recorder to record and transcribe the Public Hearing.

Does this oversight (or disregard) actually result in converting the November 10 Public Hearing to a "public meeting" with no legal effect whatsoever?

Is sworn testimony really not "legally required" at a Public Hearing? If it is not, then why were the Plan Commission Public Hearings conducted with sworn testimony. It was at the second Plan Commission Public Hearing, when I realized that testimony was sworn testimony, that I raised the issue that the Plan Commission had very likely heard sworn but untrue testimony at its first Public Hearing of the summer on the WCLS matter. I have seen no evidence that the City has made any effort to ascertain whether, in fact, untrue testimony was presented.

Could the proceedings of the HPC be defective without sworn testimony? Not being a lawyer I am not prepared to comment as to whether the Klaeren case in Illinois law is considered applicable to the HPC Public Hearings. Some municipal law firms believe its impact is broader than just to that case.

It's the fourth point that causes me to hesitate the longest before I would consider agreeing that the Public Hearing of November 10 is valid.

" ... a legal precedent that since neither WCLS nor HPC objected during the public hearing to the failure to administer oaths the issue is effectively waived..."

Since the HPC planned the meeting, it certainly would not have objected to the failure to administer oaths. It would not even have known to do so.

And counsel for WCLS? You can bet he knows whether the administration of oaths is required. And why would he object? My guess is that he sat there (sort of like the
Cheshire cat), knowing that the Public Hearing was invalid without sworn testimony, and that the wise course of action was not to object then, but to wait until later - perhaps at the second April 2009 meeting of the City Council. And then he will object to the Council's consideration of the recommendation of the HPC, saying that there was, in fact, no (valid) Public Hearing and, therefore, there is no valid recommendation that the Council can consider.

Is the legal precedent referred to by the City Attorney applicable in this particular matter? Can such an important factor as truthful testimony be waived by either or both parties just by remaining silent (or ignorant, in the case of the HPC)? I doubt it.

Well, maybe I'm just crying "Wolf!" At the second April 2009 meeting of the City Council, perhaps it will accept the recommendation of the HPC, grant Landmark status to Grace Hall and withhold the Demolition Permit. Wanna bet?