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13 October 2000

JUSTICE HUTCHINSON delivered the opinion of the court:

This matter reaches us as an interlocutory appeal of an order granting apreliminary injunction preventing defendants Saint Procopious Abbey (the Abbey)and Meijer, Inc. (Meijer), from continuing site preparation required for theconstruction of a Meijer retail store on a parcel of land owned by the Abbeypursuant to the terms of a contract for the sale of the parcel between Meijer andthe Abbey. Plaintiffs are adjoining landowners, who alleged that, because ofprocedural defects, ordinances enacted by another defendant, Village of Lisle(the Village), annexing the Abbey property, rezoning the property, andauthorizing construction as a planned unit development (PUD) were void.

Plaintiffs originally brought suit in their individual capacities but lateradded a count sounding in quo warranto, suing on behalf of the State. For thesake of clarity we will refer to them simply as "plaintiffs," whether they are acting as individuals or as the real parties in interest in the quo warrantoaction.

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Defendants timely appeal and contend that (1) plaintiffs lack standing tochallenge the annexation and rezoning; (2) plaintiffs do not have a protectableinterest in the continuation of the existing zoning; (3) plaintiffs are unlikelyto succeed on the merits of their claim because due process does not requirecross-examination in a zoning hearing; (4) plaintiffs are unlikely to succeed onthe merits of their claim because Illinois statutory law does not create a rightto cross-examination; (5) plaintiffs have not demonstrated irreparable injury;and (6) the trial court abused its discretion when it only required a bond of$5,000. We address defendants' third and fourth contentions in the publishedportion of this opinion. Defendants' remaining contentions are addressed in thenonpublished portion of the opinion. We affirm.

Plaintiffs' challenge to the annexation and rezoning focused on proceduralirregularities at the July 9, 1998, joint public hearing, and the testimonyelicited at the hearing on the preliminary injunction also centered on theconduct of the July 1998 hearing. A transcript of that public hearing iscontained in the record and reveals that on July 9, 1998, the Village board oftrustees (board), the Village plan commission (plan commission), and the Villagezoning board of appeals (ZBA) each convened a public hearing regarding the Meijerproposal at the Village hall. Each board then independently moved to recess itshearing and reconvene in the auditorium of a local junior high school. When thehearing reconvened, the mayor described the procedure as follows:

"This is a public hearing. It is not a debate. There will be noattempt at tonight's hearing to answer any question raised by theaudience. Questions may be addressed during the review process I justdescribed.

To the extent possible the speaker will address questions andconcerned [sic] raised by the combined boards this evening.

The petitioner will be first subject to any questions by theassembled boards. We will attempt to deal with each individual aspect ofthe presentation as it's made.

People in the audience speaking in favor of the proposal will thenbe heard. People in the audience speaking in opposition of the proposalwill then be heard. The petitioner will then be allowed to make closingcomments.

After closing comments by the petitioner, the public hearing will beadjourned.

Public records will remain open for written comments by interestedparties. Any written comments must be received at the Village offices by4:30 p.m. Friday, July 31st.

To be fair to everyone in the audience, I ask that you limit yourcomments to two minutes each. I will be the time keeper and will let youknow when 15 seconds remain.

No one will be allowed to speak a second time until everyone has anopportunity to speak once. That requirement will also be applicable tomembers of the assembled boards."

The first witness on behalf of Meijer was Dave Kasparik, an architect. Kasparik described the design of the proposed store and presented an artist'srendering of the completed building. Jacques Gourguechon, a land planner,described the proposed site plan, the location of the building, and the land useon the property. Donald O'Hara, a traffic consultant, presented the results ofa traffic study conducted on roads surrounding the site and described theanticipated impact of the development and made recommendations for mitigating theimpact. Christopher Burke, a hydraulic engineer, described the plans toaccommodate water runoff and wetland mitigation. During the presentation, anumber of members of the assembled bodies asked questions.

Following Meijer's presentation, the mayor invited those in favor to speak. Two members of the audience spoke in favor of the development. The mayor theninvited those opposed to the development to speak.

The first individual to speak in opposition of the project was ScottHarbek. Harbek indicated that he represented a group calling itself "No Meijeron Maple." Harbek indicated that the group had collected over 2,000 signatureson a petition opposing the development. Harbek further stated that ninerepresentatives from different subdivisions in Lisle had prepared three- to five-minute presentations on behalf of the group. Harbek asked whether such apresentation would be permitted, and the mayor responded that only a singlerepresentative would be allowed to speak on behalf of the organization and thatthe two-minute time limit would be enforced. The mayor further explained:

"Rather than try and debate with you the procedure we are going totry and follow, I tried to explain at the beginning of the meeting. Myinstructions would give everyone who wants to speak or had a writtencomment an opportunity to be heard. I think that is fair.

No matter what we do it is going to be characterized as beingunfair. That being the case, we are going to proceed with the suggestionI made. You have two minutes, beginning now."

Harbek then opined that the proposed development would have a greater impact ontraffic than the Meijer representative predicted. Harbek further opined thatsuch a development was inappropriate for the neighborhood and would decrease thequality of life.

Howard Richter, a real estate appraiser, testified that he was familiarwith Meijer stores and had conducted economic impact analyses on similar,unrelated projects. Richter admitted that he had not inspected the neighborhoodbut opined that homes in the blocks surrounding the development would beadversely impacted not less than 15% and those homes within a one-mile radiuswould be impacted 5% to 7%. Richter further stated that the public response tothe proposal evidenced by the size of the crowd at the hearing supported hisopinion of the impact on property values. The mayor interrupted, stating "15seconds." Richter then addressed the issue of tax increment financing (TIF). The mayor interrupted again, stating, "Mr. Richter you are out of time. Thankyou very much."

Another opponent, Michael Pfeifer, raised several concerns, including thepossibility of parking lot traffic, snow removal operations, and garbagecompactors creating noise pollution in the area. Pfeifer concluded, "So if youall would address those things, I would appreciate it." The Meijerrepresentatives did not respond, and no member of the board, the plan commission,or the ZBA questioned the Meijer representatives further in response to Pfeifer'scomments.

Many other individuals, including one of the plaintiffs, spoke inopposition to the proposal. Many speakers made only general comments, butseveral identified questions they wanted the assembled bodies to ask of theMeijer representatives. On several occasions the mayor warned individuals thattheir time had expired or was about to expire. After the final speaker, themayor stated, "With that, we'll close the audience participation."

On February 11, 1999, plaintiffs filed a complaint against the Villageseeking, among other things, an injunction to prevent a vote approving theannexation and rezoning. The trial court held that plaintiffs failed to name anecessary party and denied the injunction. On February 15, the board adoptedordinances annexing and rezoning the parcel and approving an annexation agreementwith Meijer. The cause was continued several times, and plaintiffs amended theircomplaint to add Meijer and the Abbey as defendants and added a count soundingin quo warranto. On September 14, 1999, the trial court entered a temporaryrestraining order that halted excavation and landscaping work on the property. On October 4, 1999, the trial court conducted a hearing on plaintiffs' motion fora preliminary injunction.

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On October 18, 1999, the trial court issued a memorandum opinion and ordergranting the preliminary injunction. The trial court relied on E&E Hauling, Inc.v. County of Du Page, 77 Ill. App. 3d 1017 (1979), and held that a public hearingmust include a right of cross-examination. The trial court further held that,although the mayor as chair of the July 1998 hearing had a right to imposereasonable conditions on the participation of the public, he could not totallydeny plaintiffs the right to question the witnesses for Meijer. The trial courtconcluded that plaintiffs were likely to succeed on the merits of their claimthat the public hearing was rendered illusory by the total denial of the rightto examine Meijer's witnesses. The trial court also concluded that irreparableinjury could be presumed because the Village board acted in violation of statelaw. The trial court ordered that no further action be taken on the Meijer siteuntil further order of the court or until the Village held a proper publichearing on the matter. The trial court also ordered that plaintiffs post a bondof $5,000. Defendants timely appeal.

ANALYSIS

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Defendants argue that plaintiffs failed to demonstrate a likelihood ofsuccess on the merits because due process does not require the right of cross-examination in the zoning context. Key to our discussion of due process in thezoning context is the distinction between procedural and substantive due process. While procedural due process governs the methods by which the state may deprivean individual of a protected interest, substantive due process imposes absolutelimits on the state's ability to act without regard to any of the proceduralprotections provided. In re Perona, 294 Ill. App. 3d 755, 760 (1998).

The seminal zoning case, Village of Euclid v. Ambler Realty Co., 272 U.S.365, 71 L. Ed. 303, 47 S. Ct. 114 (1926), recognized that the determination ofthe compatibility of land uses and the restriction of those uses to separatedistricts is an exercise of legislative wisdom limited only by substantive dueprocess. Euclid, 272 U.S. at 395, 71 L. Ed. at 314, 47 S. Ct. at 121. Suchregulation is unconstitutional if it is arbitrary and unreasonable and has nosubstantial relation to the public health, safety, morals, or general welfare. Euclid, 272 U.S. at 395, 71 L. Ed. at 314, 47 S. Ct. at 121. Illinois recognizesthis limitation of substantive due process, and the relevant considerations havebeen identified in the often-cited La Salle-Sinclair factors. See Zeitz v.Village of Glenview, 304 Ill. App. 3d 586, 594-95 (1999), citing La SalleNational Bank v. County of Cook, 12 Ill. 2d 40 (1957), and Sinclair Pipe Line Co.v. Village of Richton Park, 19 Ill. 2d 370 (1960). As a legislative judgment,a zoning ordinance is presumed valid and may only be invalidated by clear andconvincing evidence that the ordinance as applied is arbitrary, unreasonable, andwithout substantial relation to the health, safety, morals, or general welfareof the public. Zeitz, 304 Ill. App. 3d at 595.

However, the plaintiffs in this case have not raised a substantive dueprocess challenge to the proposed development. Accordingly, we are not calledupon to evaluate the wisdom of the Village's action and need not consider suchfactors as the existing uses and zoning of nearby property or the community'sneed for the proposed use. See Zeitz, 304 Ill. App. 3d at 594-95. Plaintiffsinstead challenge the procedure used by the Village board when it approved thedevelopment.

Procedural due process is a flexible concept, and the proceduralprotections employed must be adapted to the particular situation. Mathews v.Eldridge, 424 U.S. 319, 334, 47 L. Ed. 2d 18, 33, 96 S. Ct. 893, 902 (1976). Courts must consider three factors when determining the procedural protectionsdue process requires: (1) the private interest that will be affected by theofficial action; (2) the risk of an erroneous deprivation of such interestthrough the procedures used and the probable value of additional or substituteprocedural safeguards; and (3) the government's interest, including the functioninvolved and the fiscal and administrative burdens that the additional orsubstitute procedural requirement would entail. Mathews, 424 U.S. at 335, 47 L.Ed. 2d at 33, 96 S. Ct. at 903; see also East St. Louis Federation of Teachers,Local 1220 v. East St. Louis School District No. 189 Financial Oversight Panel,178 Ill. 2d 399, 415-16 (1997).

Defendants argue that no Illinois court has held that procedural dueprocess requires a right of cross-examination at a zoning hearing. Defendantsalso cite numerous cases from foreign jurisdictions in support of their argumentthat procedural due process in a zoning matter does not require a right of cross-examination. Plaintiffs in response cite additional cases from foreignjurisdictions in support of their contention that procedural due process doesrequire the right of cross-examination. We have reviewed all of the cases citedby the parties and find only that this is an area of the law around which noclear consensus has developed. Accordingly, we find that detailed analyses ofthe competing authorities does not aid our resolution of this case.

Defendants also argue that cross-examination was not required by dueprocess because the Village board was acting in a legislative capacity when itapproved the Meijer development. Generally, when the ultimate authority to ruleon a specific application for a variance or special use resides in a board oftrustees, the board is acting in a legislative and not an administrativecapacity. Yusuf v. Village of Villa Park, 120 Ill. App. 3d 533, 543 (1983). However, simply classifying a process as legislative does not insulate theunderlying procedures from review. See Geneva Residential Ass'n, Ltd. v. Cityof Geneva, 77 Ill. App. 3d 744, 755 (1979). Moreover, when a local legislativebody no longer crafts rules of general application but instead acts to grantpermits, make special exceptions, or decide particular cases, it functions lesslike a legislative body and its actions are better described as administrative,quasi-judicial, or judicial in character. Bossman v. Village of Riverton, 291Ill. App. 3d 769, 772-73 (1997), citing Ward v. Village of Skokie, 26 Ill. 2d415, 424 (Klingbiel, J., specially concurring). Placing such functions in thehands of legislative bodies creates an obvious opportunity for the extension ofspecial privileges to those well-connected politically and presents a challengeto the basic concepts of due process embodied in our legal system. See Ward, 26Ill. 2d at 424 (Klingbiel, J., specially concurring).

However, we need not consider further whether procedural due processdemands greater procedural safeguards to counter the potential for abuse presentwhen a legislative body acts as an administrative of a quasi-judicial body,because the legislature has adopted by statute additional procedural safeguards. See Bossman, 291 Ill. App. 3d at 773, citing sections 11--13--1.1, 11--13--5, and11--13--11 of the Illinois Municipal Code (65 ILCS 5/11--13--1.1, 11--13--5, 11--13--11 (West 1994)); see also Geneva Residential Ass'n, 77 Ill. App. 3d at 754-55. The public hearing and fact-finding requirements imposed by statute areintended to distance local legislative bodies from the fact-finding process andeliminate the ad hoc granting of permits. Geneva Residential Ass'n, 77 Ill. App.3d at 754-55. A reviewing court will decide a constitutional issue only when itis essential to the disposition of the case. In re Petition to Form a New ParkDistrict, 247 Ill. App. 3d 702, 716 (1993). Therefore, we will not considerfurther the nature of the safeguards mandated by procedural due process becauseour examination of the relevant statutory procedural protections resolves theissue of the right to cross-examination.

Defendants also contend that the Illinois Municipal Code (the MunicipalCode) (65 ILCS 5/1--1--1 et seq. (West 1998)) did not provide for the right ofcross-examination during the July 1998 public hearing on the Meijer proposal. Several sections of the Municipal Code requiring a hearing were implicatedbecause the proposed development involved a special use, a PUD, a variation,petitions for rezoning, and an annexation agreement. Section 11--13--1.1provides, in pertinent part, "[a] special use [including a planned development]shall be permitted only after a public hearing before some commission orcommittee designated by the corporate authorities." 65 ILCS 5/11--13--1.1 (West1998). Section 11--13--5 provides "no *** variation shall be made *** withouta hearing before the board of appeals." 65 ILCS 5/11--13--5. Section 11--13--14provides "no [zoning] amendments shall be made without a hearing before somecommission or committee designated by the corporate authorities." 65 ILCS 5/11--13--14 (West 1998). Section 11--15.1--3 provides "[t]he corporate authoritiesshall fix a time for and hold a public hearing upon the proposed annexationagreement." 65 ILCS 5/11--15.1--3 (West 1998).

The issue of whether plaintiffs possessed a right to cross-examinationturns primarily on the definition of the word "hearing" used in the MunicipalCode. Few cases in Illinois have addressed this issue, but we find that E&EHauling, Inc. v. County of Du Page, 77 Ill. App. 3d 1017, 1021 (1979), issquarely on point. E&E Hauling examined the meaning of the word "hearing" asused in the version of the Counties Code then in effect(Ill. Rev. Stat. 1977, ch.34, par. 3158 (now codified, as amended, at 55 ILCS 5/5--12014 (West 1998))). E&E Hauling, 77 Ill. App. 3d at 1021. The E&E Hauling court held "[t]he generalrule is well established that a ' "public hearing" before any tribunal or body'means 'the right to appear and give evidence and also the right to hear andexamine the witnesses whose testimony is presented by opposing parties.' " E&EHauling, 77 Ill. App. 3d at 1021, quoting Braden v. Much, 403 Ill. 507, 513(1949). The E&E Hauling court also observed " ' [a zoning board] often dealswith important property interests; and a denial of a right to cross-examine mayeasily lead to the acceptance of testimony at its face value when its lack ofcredibility or the necessity for accepting it only with qualifications can beshown by cross-examination.' " E&E Hauling 77 Ill. App. 3d at 1022, quotingWadell v. Board of Zoning Appeals, 136 Conn. 1, 8-9, 68 A.2d 152, 155-56 (1949). The reviewing court concluded that the denial of a right of cross-examination toan adjoining landowner rendered the hearing improper and voided the zoningamendment. E&E Hauling, 77 Ill. App. 3d at 1023.

Defendants argue that the holding in E&E Hauling should be limited becausethe E&E Hauling court improperly interpreted the phrase "examine the witnesses"from the Braden opinion as the equivalent of "cross-examination." However, theauthorities on which Braden relied clearly addressed the issue of a right ofcross-examination. Compare Braden, 403 Ill. at 513, with Farmers' Elevator Co.v. Chicago, Rock Island & Pacific Ry. Co., 266 Ill. 567, 573 (1915) ("Allowingthe testimony to be heard *** without any opportunity to cross-examine thewitnesses presenting it, amounts to a practical denial of the vital part of thehearing required by this statute"). We find that the E&E Hauling court holdingwas consistent with the long-established definition of "hearing."

Defendants also urge us to invoke the statutory construction doctrineexpressio unius est exclusio alterius and find that the legislature did notintend the mandated public hearing to include a right of cross-examination. Under this doctrine, a court may infer that, when a statute lists certain things,those things omitted were intended as exclusions. See Bridgestone/Firestone,Inc. v. Aldridge, 179 Ill. 2d 141, 151-52 (1997). However, this maxim is merelya rule used to help courts ascertain the intent of the legislature; it is not arule of law. Bridgestone/Firestone, 179 Ill. 2d at 153. Defendants note thatsections 11--13--7 and 11--13--7a specifically grant a right of cross-examinationto those property owners within 250 feet of a proposed special use in amunicipality with a population of more than 500,000. See 65 ILCS 5/11--13--7,11--13--7a (West 1998). Defendants argue that, because the relevant provisionsapplicable to smaller municipalities do not list the right of cross-examination,this omission evinces an intent to exclude that right from the definition of"hearing." See 65 ILCS 5/11--13--1.1 (West 1998). We disagree.

First, the relevant statutory provisions do not present an opportunity forthe appropriate application of this rule of statutory construction. Section 11--13--1.1 does not present a list of rights from which we may conclude that othershave been excluded. Instead this section merely requires a public hearingwithout specifying the required elements of that hearing. An interpretation ofthe Municipal Code that provides significant procedural safeguards to adjoiningproperty owners in large municipalities, including the right to subpoenawitnesses, cross-examine opposing witnesses, and present witnesses on theirbehalf, yet provides only an illusory right to a hearing for adjoining landownersin smaller municipalities would be absurd. Rather, we conclude that the list ofrights granted adjoining owners in larger municipalities demonstrates legislativerecognition of the full panoply of rights envisioned in a public hearing in allmunicipalities,

Second, the distinction in the Municipal Code between larger and smallermunicipalities merely expresses a legislative intent favoring greater flexibilityin the smaller municipalities. See Bossman, 291 Ill. App. 3d at 773 (holdingthat municipalities of less than 500,000 may either vest the ultimate decisionon variances in special uses in a zoning board of appeal or reserve that decisionfor the corporate legislative body). We find that this distinction does notimply a legislative intent that adjoining landowners in smaller municipalitiesare entitled to fewer procedural safeguards. Instead, we find that thisdistinction evinces a legislative recognition that in smaller municipalities itis more difficult to adopt a per se rule defining which adjoining landowners areso adversely affected by the determination that they should be entitled toadditional procedural safeguards. In other words, while a 250-foot limit mayadequately identify adversely affected landowners in a metropolitan area,development in suburban or rural areas may have a greater or lesser impact onneighboring property, and municipal authorities in such areas should be free toadopt procedural rules uniquely adapted to reflect these differences.

Finally, we note that the legislature amended the zoning provisions of boththe Municipal Code and the Counties Code after the decision in E&E Haulingwithout amending or clarifying the language requiring a hearing. See 55 ILCS5/5--12014 (West 1998) (amendment of county zoning--amended by Pub. Act 89--272,eff. August 10, 1995); 65 ILCS 5/11--13--1.1 (West 1998) (special use approvalby municipalities--amended by Pub. Act 86--330, eff. August 30, 1989). Thelegislature is presumed to know the judicial construction that a statute has beengiven, and when the legislature reenacts a statute without modification it isassumed to have intended the same effect. Nevious v. Bauer, 281 Ill. App. 3d911, 915 (1996). Therefore, we conclude that the word "hearing" in the zoningprovisions of the Municipal Code has the meaning adopted by this court in E&EHauling and includes a right of cross-examination.

Defendants argue that allowing the general public an unlimited right ofcross-examination would result in an unjustified administrative burden. Althoughthis argument is addressed primarily to the issue of whether procedural dueprocess requires cross-examination, we discuss it here to clarify our rulingregarding cross-examination. We note that the reviewing court in E&E Haulingrecognized only a right to relevant cross-examination. E&E Hauling, 77 Ill. App.3d at 1022. In a judicial proceeding, the scope of cross-examination is amatter committed to the discretion of the trial court. Bell v. Hill, 271 Ill.App. 3d 224, 231 (1995). The courts in our sister states that recognize a rightof cross-examination in zoning hearings also recognize that the relevance of thatcross-examination varies with the nature of the evidence presented and requiresa similar exercise of discretion by the body conducting the hearing. See, e.g.,Hyson v. Montgomery County Council, 242 Md. 55, 67, 217 A.2d 578, 586 (1966).

When reviewing a limitation on cross-examination, a court should considerthe extent to which cross-examination is required for a full and true disclosureof the facts with due regard to the circumstances of each particular case. SeeHyson, 242 Md. at 67, 217 A.2d at 586. We find particularly instructive theobservations of the Supreme Court of Washington on this issue in the context ofa petition for rezoning to allow construction of an oil refinery. See Chrobuckv. Snohomish County, 78 Wash. 2d 858, 480 P.2d 489 (1971).

"Generally speaking, in the ordinary zoning or rezoning hearingbefore a planning commission the cross-examination of persons expressingtheir views may not be appropriate or contribute anything of value to thefact-finding process. Where ***, however, the hearing assumes distinctlyadversary proportions *** and complex, technical and disputed factors,revolving about such matters as oil refinery processes, air pollution,noise levels, visual impact, *** are involved, it would appearparticularly pertinent to an objective factual evaluation of the testimonypresented to permit cross-examination in a reasonable degree. Otherwise,it is possible that matters of vital significance to the fact-findingtribunal may be glossed over, obscured or omitted in a recital-likepresentation of technical subjects and expert opinion." Chrobuck, 78Wash. 2d at 870-71, 480 P.2d at 496.

We conclude that, at a zoning hearing, the official presiding must be given broaddiscretion to ensure that cross-examination is appropriate and contributes to thefact-finding process or, in other words, is relevant and reasonable. However,we hold that the deference accorded decisions regarding the relevance of cross-examination does not allow a local zoning body to adopt procedures that do notinclude the right to cross-examination.

We note that municipalities may adopt a wide variety of procedural devicesto ease the administrative burdens of allowing cross-examination without undulyinterfering with that right. For example, a municipality could adopt ruleslimiting the class of individual allowed to exercise a right of cross-examination. A municipality could, within reasonable limits, require thosewishing to exercise the right of cross-examination to register in advance of thepublic hearing. Those wishing to exercise their right of cross-examination couldalso be required to allege some special interest beyond that of the generalpublic. A municipality could ease the administrative burden of identifying thosewith a special interest by adopting a rule creating a presumption of the rightto cross-examination in favor of an identified class. The legislature made asimilar classification when it adopted the 250-foot notice requirement containedin section 11--13--7. See 65 ILCS 5/11--13--7 (West 1998). The desires ofneighboring property owners alone cannot justify a zoning restriction, but thepreservation of property values is one purpose of zoning ordinances, and thediminution of property values in a neighborhood is one factor that should beconsidered before a change in zoning. See Lambrecht v. County of Will, 217 Ill.App. 3d 591, 599 (1991); 65 ILCS 5/11--13--1 (West 1998). A municipality shouldbe free to adopt reasonable limitations on the right of cross-examinationuniquely suited to local conditions, but the reasonableness of any limitation onthe rights of adjoining property owners must be judged in light of the potentialimpact on property values in the neighborhood.

Similarly, a municipality may reasonably restrict the right of cross-examination based on subject matter. The presiding officer at a public hearingmay identify those witnesses whose testimony will or will not be subject tocross-examination. The factors to be considered include, but are not limited to,the complexity of the issue, whether the witness possesses special expertise,whether the testimony reflects a matter of taste or personal opinion or concernsa disputed issue of fact, and the degree to which the witness's testimony relatesto the factors to be considered in approving the proposal. Such a determinationmay be made either immediately after the witness's testimony or may be made inadvance based on the anticipated testimony. Additionally, the hearing officercould adopt rules specifying which factual issues are considered relevant to thedecision and limiting cross-examination to witnesses addressing those issues. Such a procedure would have the additional benefit of identifying for interestedparties those factual issues considered relevant by the decision maker.

The case before us highlights some of these considerations. Severalmembers of the public, both for and against the project, expressed their opinionsregarding the need for development in general and how the proposed developmentwould change the character of the community. Although public sentiment may bea relevant consideration for policy makers, cross-examination of the speakerswould likely reveal little of value to the fact-finding process. On the otherhand, several opponents raised concerns that questioned the accuracy of Meijer'sfactual presentation. For example, opponents questioned whether the trafficstudy was consistent with Meijer's projection of retail sales. Others questionedwhether the study considered the effect of traffic on side streets. Anexamination of the Meijer witnesses by the public on these subjects would havebeen relevant to the proposed accommodations for increased traffic. Otheropponents raised specific questions regarding whether a power failure wouldaffect the proposed system for handling storm water. This too was a specificfactual issue to which the Meijer witnesses could be expected to respond. However, we need not determine which public comments were relevant or whatlimitations on the right of cross-examination would have constituted a validexercise of discretion because the procedure employed by the mayor prohibited allcross-examination by the public, without regard to the identity of the speakeror the relevance of the question. We hold that a complete prohibition on theexercise of the right of cross-examination at a public hearing is per seunreasonable and does not comport with the meaning of the word "hearing" used inthe Code. It is well established that the failure to comply with the statutoryprocedural requirements voids a zoning modification. See Treadway v. City ofRockford, 24 Ill. 2d 488, 496 (1962); E&E Hauling, 77 Ill. App. 3d at 1023. Therefore, we conclude that plaintiffs demonstrated a likelihood of success onthe merits of their claim.

Defendants argue that, even if plaintiffs were entitled to a right ofcross-examination, they waived this right by failing to object at the July 1998hearing. We disagree. Formal objections go hand in hand with formalproceedings. Balmoral Racing Club, Inc. v. Illinois Racing Board, 151 Ill. 2d367, 397 (1992). The purpose of presenting objections is to allow anadministrative tribunal to correct possible procedural errors. Balmoral Racing,151 Ill. 2d at 398. The mayor's statement regarding procedures at the beginningof the hearing and the tenor of his responses to requests to modify thoselimitations clearly indicated that the mayor would not consider proceduralobjections raised by the public. We hold that a formal objection to theprocedures employed at a public hearing is not required to preserve allegationsof error when the record indicates that such objection would have been futile. Therefore, we conclude that plaintiffs did not waive any error resulting from thedenial of their right to cross-examination.

Defendants also argue that any questions raised by the public at thehearing were addressed during the approval process. However, a requirement thatquestions be filtered through the body conducting the hearing is an unjustifiedrestriction on the right of cross-examination, and such a restriction is moreonerous when the responses are delayed until after the hearing. See E&E Hauling,77 Ill. App. 3d at 1022. Therefore, we conclude that the Village's proceduresfor addressing public concerns were not a substitute for the right of cross-examination created by the Municipal Code.

We emphasize that our holding here is addressed solely to the process bywhich the board reached its decision, not the decision itself. We will notinterfere with a legislative judgment merely because we would have reached adifferent conclusion or we question the wisdom of the decision. See NorthernTrust Bank/Lake Forest, N.A. v. County of Lake, 311 Ill. App. 3d 332, 336 (2000). Elected officials are accountable to the people who elected them, and thequestion of whether they should continue to exercise the power entrusted them bythe electors is a political, not a legal, question. See People ex rel. CookCounty v. Majewski, 28 Ill. App. 3d 269, 273 (1975); In re Petition for Removalof Bower, 91 Ill. App. 2d 63, 69 (1968). If the board's decision is unwise butdoes not violate substantive due process, plaintiffs' remedy lies in thepolitical arena; simply put, if unhappy, plaintiffs may campaign to throw therascals out. On the other hand, the procedural requirements we have identifiedserve not to protect the public from unwise decisions but from uninformeddecisions. If plaintiffs had been granted the right of cross-examination, theboard may have reached the same decision, but the danger that the decision wouldhave been based on a presentation that glossed over important facts would havebeen minimized. See Chrobuck, 78 Wash. 2d at 870-71, 480 P.2d at 496. In otherwords, although the board was not bound to listen to plaintiffs' concerns, it wasbound to hear them before making its decision. Therefore, although we mustaccord the board's legislative judgment deference when considering the substanceof its decision regarding rezoning, that deference does not extend to ourexamination of the underlying procedural requirements. See Treadway, 24 Ill. 2dat 496.

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Although the denial of plaintiffs' right of cross-examination wassufficient to sustain the trial court's finding that plaintiffs were likely tosucceed on the merits of their claim, we feel that it is appropriate to brieflyaddress additional procedural challenges raised by plaintiffs.

First, plaintiffs challenge the joint hearing procedure. While werecognize that such a procedure provides greater efficiency when severaldifferent bodies will be called upon to rule on the same evidence, such aprocedure must be designed to address the concerns expressed in GenevaResidential Ass'n, and the procedure must not interfere with an independentevaluation of the proposal by the assembled bodies. See Geneva ResidentialAss'n, 77 Ill. App. 3d at 755 (holding that the fact-finding process should beseparate from the legislative determination to grant a variance).

Second, plaintiffs challenge the two-minute time limit imposed on publiccomments. We conclude that any such limit on public comment implicates the sameconcerns regarding the right to present evidence that we addressed regarding thescope of cross-examination. Therefore, we hold that, although a zoning body hasthe discretion to limit public comment, it should do so with care. A proceedingthat incorporates an arbitrary time limit without consideration of the nature ofthe comments and their relevance to the factual issues presented fails to meetthe statutory definition of a public hearing.

Finally, plaintiffs argue that they were further deprived of their rightof cross-examination because defendants were allowed to modify their proposalafter the public hearing concluded. Defendants argue that modifications to aproposed development are an inherent part of the approval process. We recognizethat a per se rule requiring additional public hearings following everymodification of a proposed development would be unworkable. However, there isno public hearing when a party does not know what evidence is offered orconsidered and is not given an opportunity to test, explain, or refute. BalmoralRacing, 151 Ill. 2d at 410, citing Interstate Commerce Comm'n v. Louisville &Nashville R.R. Co., 227 U.S. 88, 93, 57 L. Ed. 431, 434, 33 S. Ct. 185, 187(1913). Therefore, we conclude that, although modification of a proposal inresponse to evidence obtained during a public hearing may be appropriate, asecond hearing is required when those modifications result in a material changein the nature of the development or involve a significant introduction ofadditional evidence.

[Nonpublishable material removed under Supreme Court Rule 23.]

In the nonpublished portion of this opinion, we determine that plaintiffshave standing to challenge the annexation and rezoning of the Meijer parcel andthat the trial court did not abuse its discretion when it set the amount of thebond. We also conclude that, because the public hearing did not meet thestatutory requirements, including the right of cross-examination, the trial courtdid not abuse its discretion when it ordered a preliminary injunction.

For the foregoing reasons, the judgment of the circuit court of Du PageCounty is affirmed.

Affirmed.

COLWELL, J., concurs.

JUSTICE RAPP, dissenting:

I respectfully dissent. The process of municipal annexation and zoning isa legislative function. As our supreme court has noted:

"It is well established that it is primarily the province of themunicipal body to determine the use and purpose to which property may bedevoted, and it is neither the province nor the duty of the courts tointerfere with the discretion with which such bodies are vested unless thelegislative action of the municipality is shown to be arbitrary,capricious or unrelated to the public health, safety and morals." LaSalle National Bank v. County of Cook, 12 Ill. 2d 40, 46 (1957).

As an administrative body, the board possesses broad discretion inconducting its hearings. See Village of South Elgin v. Pollution Control Board,64 Ill. App. 3d 565, 568 (1978). The board's discretion, however, must not beexercised arbitrarily. Wegmann v. Department of Registration & Education, 61Ill. App. 3d 352, 356 (1978). "All that is necessary is that the procedures betailored, in light of the decision to be made, to 'the capacities andcircumstances of those who are to be heard' [citation], to insure that they aregiven a meaningful opportunity to present their case." Petersen v. Plan Comm'n,302 Ill. App. 3d 461, 466 (1998), quoting Mathews v. Eldridge, 424 U.S. 319, 349,47 L. Ed. 2d 18, 41, 96 S. Ct. 893, 909 (1976). As the court noted in Telcserv. Holzman, 31 Ill. 2d 332, 339 (1964):

"[P]rocedural due process in an administrative proceeding does notrequire a proceeding in the nature of a judicial proceeding, [citation]but is satisfied by a form of procedure that is suitable and proper to thenature of the determination to be made and conforms to fundamentalprinciples of justice."

Zoning and annexation hearings concern matters related to the publichealth, safety, and morals and thus are essentially matters of public policy. It is policy decided and promulgated by elected representatives of theinhabitants of a political subdivision. It is my opinion that the board's rolein this case was to conduct a fact-gathering proceeding, not a full adversarialhearing. Accordingly, " 'the full panoply of judicial procedure' does not applyto the fact-finding investigation, including 'rights of discovery, confrontation,cross-examination, and other elements of due process involved in judicial andquasi-judicial proceedings.' " Petersen, 302 Ill. App. 3d at 468, quotingJabbarri v. Human Rights Comm'n, 173 Ill. App. 3d 227, 233 (1988).

The majority's focus on the definition of the word "hearing" to resolvethese issues is, in my opinion, misplaced. The further reliance on E&E Hauling,Inc. v. County of Du Page, 77 Ill. App. 3d 1017 (1979), is also misplaced in thatE&E Hauling derives its definition of "hearing" through Braden v. Much, 403 Ill.507 (1949), which itself relies on Farmers' Elevator Co. v. Chicago, Rock Island& Pacific Ry. Co., 266 Ill. 567 (1915). That is to say that the etymology of theholding in E&E Hauling is Farmers' Elevator Co., which dealt with the issue ofa connection between railroads, wherein the decision effectively caused thetransfer of property from one litigant to another, a quasi-judicial process. Therequirement of a full due process proceeding was obvious in Farmers' ElevatorCo., diluted in its application in Braden, and even more diluted in E&E Hauling. I do not believe that the phrase "the right to examine the witnesses," used inE&E Hauling, 77 Ill. App. 3d at 1021, upon which the majority relies to extendthe right to cross-examination in zoning and annexation proceedings, is properin the context of what is essentially a legislative determination. Establishingthe proper zoning classification is not a quasi-judicial process.

The majority recognizes the need for a process that provides a proper andfair forum for all parties to present their respective positions. I have noquarrel with this, but I see a danger in the various suggestions as to proceduresset out by the majority. Too much discretion is allowed the presiding officer. These requirements are best left to the legislature, from which all local zoningauthority emanates.