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Docket No. 90537-Agenda 29-May 2001.

THE PEOPLE ex rel. ROBERT J. KLAEREN II et al.,

Appellees, v. VILLAGE OF LISLE et al., Appellants.

Opinion filed October 18, 2002.

JUSTICE KILBRIDE delivered the opinion of the court:

The primary issue presented by this appeal is whether alandowner whose property abuts a parcel subject to a proposedannexation, special use, and rezoning petition can be whollydenied the right to cross-examine witnesses at a public hearingregarding the petition. Plaintiffs, residents of the Village of Lisle(village) who reside next to a parcel where defendant Meijer, Inc.(Meijer), plans to build a retail store, sought a preliminaryinjunction to prevent the continuation of site preparation forconstruction of the store, alleging that procedural defects occurredin the public hearing for the annexation and rezoning of theproperty. The circuit court of Du Page County granted thepreliminary injunction. Defendants, Meijer, the village, and SaintProcopious Abbey (the Abbey), brought an interlocutory appealunder Supreme Court Rule 307(a) (188 Ill. 2d R. 307(a)). Theappellate court held that the complete denial of the right ofinterested parties to cross-examine witnesses at the village's jointpublic hearing was improper. 316 Ill. App. 3d 770. We agree andhold that, because the joint hearing included a special use petition,due process required that interested parties be afforded the right tocross-examine witnesses.

I. BACKGROUND

The following facts were adduced at the preliminaryinjunction hearing.

Meijer sought to open a new store in the village, entering intoa contract with the Abbey to purchase a 60-acre parcel of land. Aspart of the development plan for the store, Meijer requested thatthe village pass ordinances: (1) annexing the parcel; (2) rezoningthe parcel from R-1 (residential) to B-2 (commercial businessdistrict); and (3) granting special uses for a planned unitdevelopment and for a gasoline service station. Throughout themunicipal zoning process, Meijer was opposed by plaintiffs, whoalleged that the increased traffic, noise and lighting around thenew store would diminish their property values and quality of life.Plaintiffs' challenge to the annexation, rezoning and special usefocuses on alleged procedural irregularities that occurred at a jointpublic hearing that took place on July 9, 1998. On that date, thevillage board of trustees (village board), the village plancommission (plan commission), and the village zoning board ofappeals (zoning board) each convened a separate public hearingregarding the Meijer proposal at the village hall. Each body thenindependently moved to recess its hearing and reconvene in a jointhearing at a local junior high school auditorium.⁽¹⁾ The recordreveals that the joint hearing attracted a large audience. Theauditorium seats 500 people. On the night of the hearing, audiencemembers were standing in the aisles and in the hall outside, aswell as sitting on the stairs leading up to the stage and on the stageitself.

When the hearing reconvened, the village mayor, RonaldGhilardi, who presided over the proceeding, stated:

"This is a public hearing. It is not a debate. There willbe no attempt at tonight's hearing to answer any questionraised by the audience.

* * *

To the extent possible the speaker will addressquestions and concerned [sic] raised by the combinedboards this evening.

* * *

The petitioner will be first subject to any questions bythe assembled boards. We will attempt to deal with eachindividual aspect of the presentation as it's made.

People in the audience speaking in favor of the proposalwill then be heard. People in the audience speaking inopposition of the proposal will then be heard. Thepetitioner will then be allowed to make closingcomments.

After closing comments by the petitioner, the publichearing will be adjourned.

Public records will remain open for written commentsby interested parties. Any written comments must bereceived at the Village offices by 4:30 p.m. Friday, July31st.

* * *

To be fair to everyone in the audience, I ask that youlimit your comments to two minutes each. I will be thetime keeper and will let you know when 15 secondsremain.

* * *

No one will be allowed to speak a second time untileveryone has an opportunity to speak once. Thatrequirement will also be applicable to members of theassembled boards."

Witnesses then spoke on behalf of Meijer. Those witnessesincluded an architect, a land planner, a traffic consultant, and ahydraulic engineer. During the presentations of each of thesewitnesses, several members of the village board, the plancommission, and the zoning board asked questions.

Following Meijer's witnesses, the mayor invited thoseaudience members in favor of the project to speak. Two audiencemembers spoke in favor of the development and over 40individuals spoke in opposition to the proposed project. Inresponse to a question from an opponent of the project, MayorGhilardi relayed that only a single representative would be allowedto speak on behalf of any group or organization and that thetwo-minute time limit would be enforced. Mayor Ghilardi furtherexplained:

"Rather than try and debate with you the procedure weare going to try and follow, I tried to explain at thebeginning of the meeting. My instructions would giveeveryone who wants to speak or had a written commentan opportunity to be heard. I think that is fair.

No matter what we do it is going to be characterized asbeing unfair. That being the case, we are going to proceedwith the suggestion I made."

Various opponents raised individual concerns related to theproject. Among these concerns, opponents questioned: (1) whetherthe proposed development would have a greater impact on trafficthan the Meijer representatives predicted; (2) whether thedevelopment was inappropriate for the neighborhood and woulddecrease the quality of life; and (3) whether parking lot traffic,snow removal operations, and garbage compactors would createunpredicted noise pollution in the area.

A real estate appraiser also testified on behalf of theopponents. He stated that he was familiar with Meijer stores andhad conducted economic-impact analyses on similar, unrelatedprojects. While the appraiser stated that he had not inspected theneighborhood itself, he opined that homes in the blockssurrounding the development would be adversely impacted notless than 15% and those homes within a one-mile radius would beadversely impacted 5% to 7%.

Many speakers made only general comments, but severalidentified questions they wanted the assembled bodies to presentto the Meijer representatives. On several occasions, MayorGhilardi warned individuals that their time had expired or wasabout to expire.

Following the joint public hearing, plaintiffs filed acomplaint, seeking, among other relief, an injunction to prevent avote approving the annexation, rezoning, and special use. The trialcourt denied the injunction, reasoning that plaintiffs had failed tojoin all necessary parties. The village board subsequently adoptedordinances and approved resolutions annexing, rezoning, andgranting a special use for the parcel. Plaintiffs then amended theircomplaint to add Meijer and the Abbey as defendants and addeda claim sounding in quo warranto. At plaintiffs' request, the trialcourt entered a temporary restraining order, halting sitepreparation, and held a hearing on plaintiffs' motion for apreliminary injunction.

During the hearing, plaintiff Robert Klaeren testified that heowned a home abutting the proposed development. Klaerentestified that he was concerned about the increased noise, lightpollution, and storm water runoff that would be generated by theMeijer development. He also stated that his property value woulddecrease because of the development and that he feared villageservices such as snow removal and police protection woulddiminish in the remaining portions of the village because thevillage would be required to provide these services to a larger areaas a result of the annexation.

According to Klaeren, he met with other village citizens priorto the joint public hearing and prepared a presentation. Klaerenstated that Mayor Ghilardi interrupted him before he could finishhis presentation and that he would have asked questions ofMeijer's witnesses had he been allowed to do so by MayorGhilardi.

Plaintiff Carle Wunderlich similarly testified concerningdiminished property values and increased noise and traffic.Wunderlich further testified that he had prepared an exhibit ofphotographs of a Meijer store that he was prevented from bringinginto the joint public hearing. According to Wunderlich, he built hishome across the street from the proposed Meijer development afterhis investigation of the parcel's zoning lead him to believe that theAbbey would use the parcel for institutional purposes.

Ann Duker, a village trustee and former chair of the plancommission, testified on behalf of the plaintiffs. According toDuker, she was unaware of an ordinance authorizing joint hearingsfor the village board, the zoning board, and the plan commission,but that such hearings were held as a matter of custom andconvenience. Duker testified that the plan commission maderecommendations to the village board regarding subdivision plansand planned unit developments. Regarding the Meijerdevelopment, the plan commission had voted five to one to denythe recommendations and had adopted negative findings of fact.On cross-examination, Duker revealed that she had been electedto the position of village trustee, campaigning as an opponent ofthe Meijer development.

Steven Stroh, the chair of the zoning board, likewise testifiedthat the zoning board had voted to deny Meijer a special usepermit to operate a gas station on the development.

Thomas Ewers, the village director of communitydevelopment and the village building and zoning commissioner,testified on behalf of plaintiffs. Ewers detailed the procedures usedto process the Meijer application, the proposal presented to thevillage, the modifications of the proposal, and the ultimateapproval of a modified agreement for annexation and rezoning.

Plaintiffs also introduced the testimony of Paul Davis, a realestate appraiser, via a videotaped deposition. Davis testified thathe reviewed the proposed Meijer development to determinewhether it would affect the value of surrounding properties. Davisfurther testified that he researched the sales of homes in severalsubdivisions adjacent to commercial developments. According toDavis, houses on the interior of such subdivisions sold for higheraverage prices than those that abutted the commercialdevelopment. Accordingly, Davis opined that the Meijerdevelopment would have a negative impact on the value ofproperties in the surrounding area. On cross-examination, Davisadmitted that he had not prepared a written report and that hecould not quantify the diminution in value.

Thomas McCabe, an engineer, testified on behalf of theAbbey. McCabe concluded that the site-preparation work that wasbeing performed by Meijer would not have an adverse effect onthe adjoining property owners. He recommended that the Abbeyallow site-preparation work during the pendency of thetransaction.

Jacques Gourguechon, a city planning consultant, testified forthe village and Meijer. He described the land uses surrounding theMeijer development. Gourguechon also described the site plan forthe proposed development, the open space required for stormwater collection and wetlands mitigation, and the use oflandscaping as buffering for the adjoining parcels. Gourguechonfurther produced an artist's rendering of the completeddevelopment and testified that it adequately depicted how thedevelopment would appear when viewed from the residential areabehind the store. According to Gourguechon, the developmentwould have an impact on the neighboring parcels but the impactwould be the same no matter how the Meijer parcel wasdeveloped.

Mark Norton, Meijer's manager for new store construction,testified that soil had to be removed from the site and be replacedwith suitable fill as part of the construction process. Before thetemporary restraining order was entered by the trial court, such fillwas available from an unrelated excavation on another Abbeyparcel. According to Norton, alternative fill would costapproximately $40,000. In addition, Meijer had been required tofurnish the village with letters of credit at a monthly cost of$1,900. Norton concluded that Meijer would be forced to spend anadditional $1.5 to $2.5 million due to the additional expensesgenerated by the delay in site preparation in order to completeconstruction of the new store by the originally contemplated date.

Mayor Ghilardi testified that the purpose of the public hearingin the zoning and development context was to provide anopportunity for input on a legislative process that results in apolicy decision. Mayor Ghilardi testified that he believed the jointpublic hearing procedure used by the village was practical andefficient. Regarding cross-examination, Mayor Ghilardi stated thatthe hearing was not designed to be "a debate between thepetitioner and the proponents or opponents of the development."He further stated:

"[S]o what we wanted to do is *** if you have acomment that you would like to make, please make yourcomment. If there are questions that you as one of themembers of the public have, raise the question, and sometime during the course of what is oftentimes a verylengthy process, those questions are addressed throughoutthe process.

Part of those questions are addressed also not only bythe board members in their representative capacity, butalso by the various consultants that the Village retains toreview the materials submitted by the *** petitioner."

When asked whether anyone in the public requested the rightto cross-examine witnesses at the joint public hearing, MayorGhilardi responded:

"I don't remember the use of the word cross-examine***. People asked their questions. If they had a question,they would phrase their question and go on. Some werequestions that were capable of being answered. Somewere questions that were rhetorical. Some were questionsthat were of a negative parlance. There were a series oftypes of questions. But cross-examination as we wouldknow it in this room was not part of the process."

Mayor Ghilardi further testified that the village board votedto approve the Meijer development and that an extraordinarymajority was needed for the various approvals because the plancommission and the zoning board each recommended denial.

Following the preliminary injunction hearing, the trial courtissued a memorandum opinion and order granting the preliminaryinjunction. The trial court principally relied on E&E Hauling, Inc.v. County of Du Page, 77 Ill. App. 3d 1017 (1979), holding that,although Mayor Ghilardi, as chair of the July 1998 hearing, had aright to impose reasonable conditions on the participation of thepublic, he could not totally deny plaintiffs the right to question thewitnesses for Meijer. The trial court further concluded thatplaintiffs were likely to succeed on the merits of their claim thatthe public hearing was rendered illusory by the total denial of theright to examine Meijer's witnesses. The trial court also concludedthat irreparable injury could be presumed because the villageboard acted in violation of state law. The trial court ordered thatno further action be taken on the Meijer site until further order ofthe court or until the village held a proper public hearing on thematter. Defendants appealed.

The majority of the appellate panel affirmed. The appellatemajority reasoned:

"[W]hen a local legislative body no longer crafts rules ofgeneral application but instead acts to grant permits, makespecial exceptions, or decide particular cases, it functionsless like a legislative body and its actions are betterdescribed as administrative, quasi-judicial, or judicial incharacter. Bossman v. Village of Riverton, 291 Ill. App.3d 769, 772-73 (1997), citing Ward v. Village of Skokie,26 Ill. 2d 415, 424 (Klingbiel, J., specially concurring).Placing such functions in the hands of legislative bodiescreates an obvious opportunity for the extension of specialprivileges to those well-connected politically and presentsa challenge to the basic concepts of due process embodiedin our legal system. See Ward, 26 Ill. 2d at 424 (Klingbiel,J., specially concurring)." 316 Ill. App. 3d at 779.

Justice Rapp dissented, contending that municipal annexationand zoning are purely legislative functions. 316 Ill. App. 3d at 787(Rapp, J., dissenting). Therefore, according to Justice Rapp, amunicipal board need only allow interested parties to present theircases, rather than holding an adversarial proceeding with cross-examination. 316 Ill. App. 3d at 788 (Rapp, J., dissenting).

We granted defendants leave to appeal and further grantedleave to a group of other municipalities to submit an amicus curiaebrief in support of defendants.⁽²⁾ See 155 Ill. 2d R. 345.

II. ANALYSIS

A. Standing

As a threshold matter, defendants allege that plaintiffs lackstanding to bring the present action. According to defendants,plaintiffs failed to establish any special injuries different fromthose of the general public. In an unpublished portion of itsopinion, the appellate court disagreed, holding that plaintiffs hadestablished standing as a result of their proximity to the proposeddevelopment.

In support of this holding the court cited Yusuf v. Village ofVilla Park, 120 Ill. App. 3d 533 (1983). The court in Yusuf heldthat a diminution in value and a loss in the quiet enjoyment ofone's property caused by additional traffic and noise created by aproposed special use was adequate to confer standing on adjoiningproperty owners. Yusuf, 120 Ill. App. 3d at 538. The appellatemajority in this case likewise held that any increase in noise,traffic or light pollution created by the development would affectthe use and enjoyment of plaintiffs' properties in a manner distinctin both quantity and quality from any injury suffered by the publicas a whole. We agree with this conclusion.

Allegations identical to those raised by the plaintiffs in Yusufwere raised by plaintiffs in this case. Those allegations weresupported by the testimony of plaintiffs as well as the testimony ofPaul Davis, a real estate appraiser, at the preliminary injunctionhearing. Thus, this showing was sufficient to confer plaintiffs withstanding to pursue injunctive relief.

Concerning their quo warranto claims, however, the appellatemajority found that plaintiffs had failed to establish standing.According to the appellate majority, plaintiffs' contentions that adiminution in municipal services would result from the proposeddevelopment were speculative. Specifically, the majority held thatplaintiffs did not prove that the additional tax revenue generatedby the development would not offset the cost of providingadditional municipal services. Plaintiffs have not appealed thisholding. Accordingly, we will not address the issue.

B. Preliminary Injunction

The primary focus of our review is whether the circuit courtproperly granted injunctive relief to plaintiffs. A preliminaryinjunction is intended to preserve the status quo pending a decisionon the merits of a case. Hartlein v. Illinois Power Co., 151 Ill. 2d142, 156 (1992). A preliminary injunction is an extreme remedythat should be employed only in situations when an emergencyexists and serious harm would result if the injunction is not issued.Callis, Papa, Jackstadt & Halloran, P.C. v. Norfolk & Western Ry.Co., 195 Ill. 2d 356, 365 (2001).

A party requesting a preliminary injunction must demonstrate:(1) a clearly ascertained right in need of protection; (2) irreparableharm in the absence of an injunction; (3) no adequate remedy atlaw for the injury; and (4) the likelihood of success on the merits.Hartlein, 151 Ill. 2d at 156. On appeal, we examine only whetherthe party seeking the injunction has demonstrated a prima faciecase that there is a fair question concerning the existence of theclaimed rights. Callis, 195 Ill. 2d at 366. The decision to grant ordeny a preliminary injunction rests within the sound discretion ofthe trial court and on review the decision will not be disturbedabsent an abuse of discretion. Desnick v. Department ofProfessional Regulation, 171 Ill. 2d 510, 516 (1996).

1. Likelihood of Success on the Merits

The thrust of the parties' arguments before this court centerson the fourth prong of injunctive relief: whether plaintiffs enjoy alikelihood of success on the merits. Success on the merits in thiscase would be a declaration by the trial court that any of the villageordinances annexing, rezoning, and granting a special use for thesubject parcel are void due to the alleged procedural flaws of thejoint public hearing. Defendants maintain that there is nolikelihood of success on the merits because no right to cross-examination exists; plaintiffs and the courts below disagreed.Having distilled their arguments to focus mainly on this particularissue, we will similarly tailor our discussion.

a. Waiver

Before we engage in this discussion, we must, however,address defendants' contention that plaintiffs waived any objectionto the lack of cross-examination by failing to object to the jointhearing procedures. As we stated in Balmoral Racing Club, Inc.v. Illinois Racing Board, 151 Ill. 2d 367, 397 (1992), formalobjections go hand in hand with formal proceedings. It isdisingenuous for defendants to maintain on the one hand that themunicipal boards properly used informal proceedings at the jointhearing while, on the other hand, arguing that a formal objectionwas necessary to preserve plaintiffs' claim of error.

More importantly, we agree with the appellate court that thereis no need to object when it is apparent that an objection would befutile. See Bianchi v. Mikhail, 266 Ill. App. 3d 767, 776 (1994).Mayor Ghilardi's preliminary statements regarding the proceduresto be employed at the hearing were unequivocal. He made clearthat "there [would] be no attempt at [the] hearing to answer anyquestion raised by the audience [members]" and that he would notconsider any procedural objections raised by the public. In such asituation, we believe a formal objection is not required to preserveallegations of error. We therefore hold that plaintiffs did not waiveany error resulting from the denial of their right tocross-examination.

b. Merits

Turning to the merits of the parties' arguments, defendantsmaintain that the plain language of the applicable provisions of theIllinois Municipal Code (Municipal Code or Code) (65 ILCS5/1-1-1 et seq. (West 1998)) grants only notice and an opportunityto be heard at a public hearing concerning a special use inmunicipalities with a population of less than 500,000. See 65 ILCS5/11-13-7, 11-13-1.1 (West 1998). Defendants contend that thelower courts improperly grafted provisions of the Municipal Codethat only apply to larger cities onto the provisions of the Codeapplicable to the village in this case. See 65 ILCS 5/11-13-7,11-13-7a (West 1998).⁽³⁾

Plaintiffs counter that the right to cross-examine witnesses isimplied in the legislature's requirement of a "public hearing" inzoning matters because a public hearing is meaningless if theaudience is not allowed to participate. Plaintiffs further contendthat decisions interpreting "public hearing" to include the right tocross-examine witnesses (see, e.g., E&E Hauling, Inc. v. Countyof Du Page, 77 Ill. App. 3d 1017, 1021 (1979); Braden v. Much,403 Ill. 507, 513 (1949)) predate amendments to the applicablesections of the Code. According to plaintiffs, the legislature'sdecision not to define further the term in light of controllingauthority clearly shows that the legislature intended that publichearings include the right to cross-examine.

The appellate majority agreed with plaintiffs, determining thata right of cross-examination was implicit in the applicableMunicipal Code sections. Recognizing that the court in E&EHauling defined the term "public hearing" in relation to theCounties Code then in effect (Ill. Rev. Stat. 1977, ch. 34, par. 3158(now codified, as amended, at 55 ILCS 5/5-12014 (West 1998))),the appellate majority also noted the E&E Hauling court'sstatement that " '[t]he general rule is well established that a" 'public hearing' before any tribunal or body" means "the rightto appear and give evidence and also the right to hear and examinethe witnesses whose testimony is presented by opposingparties." ' " (Emphasis added.) 316 Ill. App. 3d at 780, quotingE&E Hauling, 77 Ill. App. 3d at 1021, quoting Braden, 403 Ill. at513. Turning directly to the tribunals at issue in this case, theappellate majority specifically observed that zoning boards

" ' "often deal[ ] with important property interests; and adenial of a right to cross-examine may easily lead to theacceptance of testimony at its face value when its lack ofcredibility or the necessity for accepting it only withqualifications can be shown by cross-examination." ' "316 Ill. App. 3d at 780, quoting E&E Hauling, 77 Ill.App. 3d at 1022, quoting Wadell v. Board of ZoningAppeals, 136 Conn. 1, 8, 68 A.2d 152, 155 (1949).

Therefore, the appellate majority concluded that the sections of theMunicipal Code that specifically grant a right of cross-examination to those property owners within 250 feet of a specialuse in a municipality of more than 500,000 persons (see 65 ILCS5/11-13-7, 11-13-7a (West 1998)) may be impliedly read into theremaining sections of the Code that cover the municipality at bar(see 65 ILCS 5/11-13-1.1 (West 1998)). 316 Ill. App. 3d at 781-82. According to the appellate majority, the legislature's provisionof more specific guidelines for the largest municipalities shows anintent to have more flexibility in the remaining municipalities. 316Ill. App. 3d at 781. Moreover, the appellate majority observed thatit would be absurd to grant the right of cross-examination toadjoining landowners in larger municipalities, while providingonly an illusory right to landowners in smaller municipalities. 316Ill. App. 3d at 781.

We are unwilling to adopt the appellate majority's blanketendorsement of the E&E Hauling determination that a " ' " 'publichearing' before any tribunal or body" ' " includes the full panoplyof due process rights. (Emphasis added.) 316 Ill. App. 3d at 780,quoting E&E Hauling, 77 Ill. App. 3d at 1021, quoting Braden v.Much, 403 Ill. 507, 513 (1949). To construe so broadly the phrase"public hearing" may be inappropriate in some instances. Thus,the appellate majority too strictly relied on the Municipal Code forits resolution of this cause. The resolution of this cause insteaddepends upon the distinction between legislative hearings andadministrative hearings before municipal bodies.

Illinois courts have long held that municipal bodies act in alegislative capacity when they conduct zoning hearings. Forexample, the oft-cited decision in La Salle National Bank ofChicago v. County of Cook, 12 Ill. 2d 40 (1957), articulated:

"It is well established that it is primarily the province ofthe municipal body to determine the use and purpose towhich property may be devoted, and it is neither theprovince nor the duty of the courts to interfere with thediscretion with which such bodies are vested unless thelegislative action of the municipality is shown to bearbitrary, capricious or unrelated to the public health,safety and morals." La Salle National Bank, 12 Ill. 2d at46.

We recently raised the question of whether to classify special usepermit hearings as legislative matters or administrative matters inthe context of whether a municipality's decision is subject toadministrative review in City of Chicago Heights v. Living WordOutreach Full Gospel Church & Ministries, Inc., 196 Ill. 2d 1(2001). In Living Word, we recognized that "the clear weight ofauthority in the United States holds that a legislative body actsadministratively when it rules on applications for special usepermits." Living Word, 196 Ill. 2d at 14. We further noted:

"[T]here is considerable force to the view that thedecision of a legislative body to grant or deny anapplication for a special use permit, whether made by acounty or municipality, should be viewed as anadministrative act. The decisions from this court whichhave held to the contrary have been criticized. [Citation.]Further, our appellate court has suggested that, in light ofamendments made to the Illinois Municipal Codegoverning special uses, the General Assembly hasindicated a desire to treat the application process for aspecial use permit as an administrative function, at leastwith respect to municipalities. [Citations.]" Living Word,196 Ill. 2d at 15-16.

Thus, in Living Word, we implicitly posed the question of whetherwe would continue to hold that zoning hearings on special useapplications are legislative matters. The resolution of Living Word,however, did not depend upon an answer to that question becausethe municipality's decision regarding the special use permit inLiving Word could not be sustained whether viewed as anadministrative decision or a legislative one. See Living Word, 196Ill. 2d at 16-26.

Having been freshly and squarely presented with the questionby the cause at hand, we now answer it by holding that municipalbodies act in administrative or quasi-judicial capacities when thosebodies conduct zoning hearings concerning a special use petition.As we stated in Living Word, the "clear weight of authority" soholds. Living Word, 196 Ill. 2d at 14. To the extent any priordecisions of this court hold the contrary to be true, we nowexpressly overrule those decisions.

The reasons for classifying zoning hearings that deal withspecial use applications as administrative or quasi-judicial aremanifest. In these hearings, the property rights of the interestedparties are at issue. The municipal body acts in a fact-findingcapacity to decide disputed adjudicative facts based upon evidenceadduced at the hearing and ultimately determines the relativerights of the interested parties. As a result, those parties must beafforded the due process rights normally granted to individualswhose property rights are at stake. See Balmoral Racing Club, 151Ill. 2d at 405 (the starting point, in any due process analysis, is adetermination of whether one of these protectable interests-life,liberty or property-is present); Brown v. Air Pollution ControlBoard, 37 Ill. 2d 450, 454 (1967) ("a proceeding *** which couldaffect one's property rights *** [is] governed by the fundamentalprinciples and requirements of due process of law").

To what extent the full panoply of due process rightscommonly associated with quasi-judicial proceedings must beafforded interested parties depends upon the purpose of thehearing. As stated by the United States Supreme Court in Hannahv. Larche, 363 U.S. 420, 4 L. Ed. 2d 1307, 80 S. Ct. 1502 (1960),

" 'Due process' is an elusive concept. Its exactboundaries are undefinable, and its content variesaccording to specific factual contexts. Thus, whengovernmental agencies adjudicate or make bindingdeterminations which directly affect the legal rights ofindividuals, it is imperative that those agencies use theprocedures which have traditionally been associated withthe judicial process. On the other hand, whengovernmental action does not partake of an adjudication,as for example, when a general fact-finding investigationis being conducted, it is not necessary that the fullpanoply of judicial procedures be used. Therefore, as ageneralization, it can be said that due process embodiesthe differing rules of fair play, which through the years,have become associated with differing types ofproceedings. Whether the Constitution requires that aparticular right obtain in a specific proceeding dependsupon a complexity of factors. The nature of the allegedright involved, the nature of the proceeding, and thepossible burden on that proceeding, are all considerationswhich must be taken into account." Hannah, 363 U.S. at442, 4 L. Ed. 2d at 1321, 80 S. Ct. at 1514-15.

See also Abrahamson v. Illinois Department of ProfessionalRegulation, 153 Ill. 2d 76, 92 (1992) (due process is a flexibleconcept and requires only such procedural protections asfundamental principles of justice and the particular situationdemand); accord Scott v. Department of Commerce & CommunityAffairs, 84 Ill. 2d 42, 51 (1981); compare Petersen v. PlanComm'n, 302 Ill. App. 3d 461, 468 (1998) (all aspects of dueprocess protection need not be afforded at a fact-gathering hearingconducted before a plan commission), with E&E Hauling, 77 Ill.App. 3d at 1022 (failure to permit cross-examination at a zoningboard hearing violates due process).

According to the testimony at the preliminary injunctionhearing, the joint hearing in the cause at hand served severalpurposes. The village board was gathering facts to evaluate theproposed annexation. The plan commission was consideringMeijer's proposed development plan and determining whether torecommend that plan to the village board. The zoning board was,likewise, assessing the special use and rezoning requests with aneye toward whether to recommend that the village board grant therequests. Since the joint procedure used by the village involved aspecial use request, it would be a denial of due process not toafford interested parties the right to cross-examine adversewitnesses. See Living Word, 196 Ill. 2d at 21-22; see alsoBalmoral Racing Club, 151 Ill. 2d at 410-11 (cross examinationis " 'the most efficacious test for the discovery of the truth' ").Plaintiffs have shown a reasonable likelihood that the court willconclude they were entitled to this right of cross-examination. Werecognize that the right is not unlimited and may be tailored by themunicipal body to the circumstances specifically before it. SeeHyson v. Montgomery County Council, 242 Md. 55, 67, 217 A.2d578, 586 (1966) (the relevance of cross-examination varies withthe nature of the evidence presented and requires a similar exerciseof discretion by the body conducting the hearing).

The appellate majority offered some particularly instructivecomments concerning limitations to the right of cross-examinationthat may be instituted by a municipal body in order to ease itsadministrative burdens:

"[A] municipality could adopt rules limiting the class ofindividual allowed to exercise a right ofcross-examination. A municipality could, withinreasonable limits, require those wishing to exercise theright of cross-examination to register in advance of thepublic hearing. Those wishing to exercise their right ofcross-examination could also be required to allege somespecial interest beyond that of the general public. Amunicipality could ease the administrative burden ofidentifying those with a special interest by adopting a rulecreating a presumption of the right to cross-examinationin favor of an identified class. The legislature made asimilar classification when it adopted the 250-foot noticerequirement contained in section 11-13-7. [Citation.] Thedesires of neighboring property owners alone cannotjustify a zoning restriction, but the preservation ofproperty values is one purpose of zoning ordinances, andthe diminution of property values in a neighborhood isone factor that should be considered before a change inzoning. [Citations.] A municipality should be free toadopt reasonable limitations on the right ofcross-examination uniquely suited to local conditions, butthe reasonableness of any limitation on the rights ofadjoining property owners must be judged in light of thepotential impact on property values in the neighborhood.

Similarly, a municipality may reasonably restrict theright of cross-examination based on subject matter. Thepresiding officer at a public hearing may identify thosewitnesses 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, whetherthe witness possesses special expertise, whether thetestimony reflects a matter of taste or personal opinion orconcerns a disputed issue of fact, and the degree to whichthe witness's testimony relates to the factors to beconsidered in approving the proposal. Such adetermination may be made either immediately after thewitness's testimony or may be made in advance based onthe anticipated testimony. Additionally, the hearingofficer could adopt rules specifying which factual issuesare considered relevant to the decision and limitingcross-examination to witnesses addressing those issues.Such a procedure would have the additional benefit ofidentifying for interested parties those factual issuesconsidered relevant by the decision maker." 316 Ill. App.3d at 783-84.

While an interested party's right of cross-examination may betailored by guidelines such as these, that right may not be whollycontravened by the procedures used at the joint hearing at issuehere.

As we have noted, the joint hearing in this case involvedmultiple decisions by three separate intra-municipal bodies.Viewed independently based on the individual purposes of eachmunicipal body, whether and to what extent interested partiesshould be afforded the right to cross-examine adverse witnessesvaries depending upon the type of hearing at issue. When amunicipal body acts legislatively, its decision is subject only toreview for arbitrariness as a matter of substantive due process.Living Word, 196 Ill. 2d at 14. The joint hearing in this case,however, involved a quasi-judicial proceeding in that a special useapplication was heard and interested parties were not afforded theright to cross-examine adverse witnesses. In light of thisdeficiency, we agree with the trial court's and appellate court'sultimate conclusion that plaintiffs enjoy a likelihood of success onthe merits of their claim that their constitutional right to dueprocess was infringed. Therefore, the trial court properly issued apreliminary injunction in this case.

2. Remaining Issues  

We are also asked by the parties to comment upon theprocedures used by the village as a whole. The advantages of ajoint hearing among several intra-municipal bodies addressing thesame general issues are clear. Efficiency, convenience, and cost-effectiveness are plainly served by an omnibus procedure. Forexample, under that system there is no need for parties to producethe same evidence at multiple hearings. Moreover, interestedmembers of the public may attend a single hearing and assurethemselves that their concerns are expressed to each relevantmunicipal body.

We must admonish public bodies, however, that thedisadvantages of a joint hearing are similarly apparent. Asevidenced by this case, the size of the public audience providedlittle flexibility in conducting the hearing. While time limits maybe necessary in certain circumstances, the two-minute time limitimposed here would have been clearly improper had theproceedings complied with the due process requisite of cross-examination for interested parties. In addition, the need for anappropriate officer to lead such an omnibus procedure is evident,but allowing the chief executive officer of the village to oversee ahearing of several of its boards is of questionable propriety at best.

Each of these concerns should be taken into account whenmunicipalities craft procedures for joint hearings among thosebodies involved in considering special use applications. Theoverarching objective should be to create a procedure that providesfor and safeguards the due process rights of the interested partiesbut does not interfere with the independent evaluations by theindividual municipal bodies.

III. CONCLUSION

For the reasons set forth above, we hold that plaintiffs haveshown a reasonable likelihood of success on the merits. Alandowner whose parcel adjoins a tract of land subject to a specialuse application cannot be entirely denied the right to cross-examine adverse witnesses at a public hearing regarding thespecial use application. The complete denial of such a right tointerested landowners runs afoul of due process.

Accordingly, we affirm the appellate court's affirmance of thecircuit court's preliminary injunction.

Affirmed.

JUSTICE RARICK took no part in the consideration ordecision of this case.

1. ¹The underlying facts of the joint public hearing are fully set forth inthe opinion of the appellate court. 316 Ill. App. 3d 770. We need onlysummarize those facts necessary to address this appeal.

2. ²The amicus curiae brief was submitted by the villages ofBannockburn, Grayslake, Hinsdale, Lake Bluff, Lake Zurich, andNorthbrook and the cities of Highland Park and Lake Forest.

3. ³The relevant text of section 7a of the Municipal Code,distinguishing the enumerated rights of property owners inmunicipalities with a population of more than 500,000 from those ofproperty owners in municipalities of less than 500,000, is as follows:

"Zoning variation and special use applicants and propertyowners, as set forth in Section 11-13-7 of this Act, shall havethe following rights, in addition to any others they may possessin law, at any hearing before a board of appeals:

(a) to have subpoenas issued for persons to appear at boardof appeals' hearings and for examination of documents by theperson requesting the subpoena either before or at board ofappeals hearings subject to the limitations in this Section. ***

(b) To cross examine all witnesses testifying.

(c) To present witnesses on their behalf.

Property owners within the terms of Section 11-13-7 whoobject to the zoning application or special use application may,upon request, be granted 1 continuance for the purpose ofpresenting evidence to rebut testimony given by the applicant.The date of such continued hearing shall be in the discretion ofthe board of appeals.

This amendatory act of 1973 is not a limit upon anymunicipality which is a home rule unit." (Emphasis added.) 65ILCS 5/11-13-7a (West 1998).