County outsources legal counsel on appeal

MORRISON – The appeal of a 3-year-old lawsuit targeting the Whiteside County Board’s authority to change zoning use will mark the first time special counsel has represented the board.

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On a handshake, Rock Island attorney Donovan Robertson, of Coyle, Gilman, Stengel, Bailey and Robertson, has agreed to handle the appeal for $125 an hour with the bill not to exceed $5,000.

The legal dispute, which started shortly after Spalding’s Auto Parts asked for industrial zoning at the Interstate 88 and State Route 78 interchange, has now trickled through three judicial reviews in 3 years, in an ongoing case that cuts to the heart of the board’s zoning authority.

County Board Chairman Tony Arduini says the board has an obligation to appeal the ruling, despite the cost, because it challenges the board’s legislative authority and could interfere with future attempts to re-zone elsewhere in the county.

The plaintiffs in rural Lyndon say they will continue to fight because the board failed to follow its own set of zoning ordinances, and if and when the scrap yard closes, more intrusive industry could move onto the 18 acres.

At the center of the argument is whether the county board is bound to adhere to the results of Land Evaluation and Site Assessments, a 14-point test used throughout the state to determine the extent to which land is suited to agricultural use.

Hearings on the LESA test and proposed use are handled by the seven-member Planning and Zoning Commission, which then makes a recommendation on a proposed zoning change to the full county board.

Assistant State’s Attorney Jim Heuerman usually represents the board. The decision to hire special counsel came after a 30-minute closed session with the full board in March. Spencer opted to hire outside the courthouse because the criminal caseload in Whiteside County has his office stretched as far as it can go, he said.

“My staff here is fully occupied on the trial level,” Spencer wrote in an e-mail.

Spencer approached Robertson about the case because “I have the highest respect for his abilities and his ethics, he is a very experienced appellate lawyer with a large appellate practice, and I believe that he will represent the county and my office well,” Spencer wrote.

The two have not drafted a contract, Spencer said.

Spencer declined to estimate what the appeal might cost.

The $5,000 ceiling will not apply if the case goes beyond the appellate court, he said.

Robertson, who has experience in several appellate districts, the Illinois Supreme Court and the U.S. Supreme Court, sad he took the Whiteside County Board’s case at a rate below his usual fee because he has worked with Spencer in the past and took a special interest in this case.

“I’m happy to help him out, and it’s something that’s in the public interest,” Robertson said. “It’s rare to have it go to the appellate court. We’ve got a rather interesting case here. Usually when the board acts and it goes into judicial review, that’s it.”

Robertson, who has practiced for 27 years, declined to offer any details of the county’s argument.

“I’m generally uncomfortable discussing the merits of a case still before the court,” Robertson said.

Payment for Robertson will come from the county’s liability reserve fund, which has a $680,000 balance, County Administrator Joel Horn said.

After closed session in March, the county voted to appeal Rock Island Judge Roger Zimmer’s ruling. In February, Zimmer sided with 14 plaintiffs -- a coalition of rural Lyndon residents miffed at the county board’s decision to issue industrial zoning to 18 former farm acres in rural Lyndon.

The appeal probably won’t be resolved until sometime next year, Robertson said.