regarding health solution planning or decisions but in doing so they set up several strawman arguments to do so so to clarify i like to point out what it is we're not trying to do here because i think it will help frame the issue we're not asking this court  be mandated to require by it that all we're asking is to have the ability for any reviewing court and any party that has the right to administrative review to be able to have some basis by which to discern multitude of criteria there's a specific regulation which says that the board is allowed to approve projects despite the failure to meet all criteria in fact the only project that would ever come before planning or that would be legally entitled to it would be a project met every review criteria something that is almost unheard of in planning work projects but it's exactly because of that discretion that is afforded to the board that it's important for review in court to be able to have some insight into why the board acted as  reasons to approve a project and to reach a decision as there are improper ones and i think history will record is shown and if in adversely affected party is going to have a right to administrative you then the absence of any rationale any reasoning and you basis by which to discern why the board did what it did will result in stripping down that right to it to having absolutely no meaning the appellate court and the circuit court if they're going to review this should not have to speculate as to why the board did what it did now counsel has done a good job of presenting their post hoc rationale as to why the board could approve these projects they've gone through the in provino twice before the appellate court reached its decision it presented the conclusion that there was not enough basis i which the board reached its decision for the appellate court to determine whether or not the decision was reached properly or impro counsel of the board at the time this happened as an attorney as i sat down and wrote out all the potential rationale and reasoning for the board my doing so had no meaning it wasn't until the board had the opportunity to discuss that rationale and reasoning in an open me and perform their own analysis as to why the project has merit and could have been approved equally we've identified right reasons why the project could not have been or were left standing here with no insight or understanding as to why  actually did what it did counsel in presenting their arguments conflates the record the administrative record on review which includes every document that was submitted and constitutes the application ac proceedings most of the case law in which it is presented where the cases hold a finding of fact which was not required the reviewing court was able to discern in those cases why they were acted or two white the back and forth through the questioning through the statements why the government agency acted in the way they did in this circumstance what we have is we have in effect a stump speech by the applicant presenting the benefits of the or proposing we have two questions back and forth none of which are absolved neither of which relate to any of the review criteria and one of those questions verification from the chairman that there was no opposition to the project in the project if the court might consider the rationale recently and to some certain cases c d t being one where the court criticised the over science on the use of boilerplate without providing any basis to understand that  or that the government took into consideration and actually decided the issues before well why was the court told that there was no opposition to your honor our opinion is the court was misinformed the opposition was clear the opposition there had been a public hearing the now we don't believe this was in fairness we believe this was an honest mistake that problem was compound by the failure to comply because had the rights under the open meetings act which  the opposition which was a group of facilities that had organized amongst themselves we were not representing it that they are facilities in the area that had substantial interest in expansion of health care in this community and they all came and put forth various reasons and there's i think a substantial question in the administrative record of whether or not the board was even aware of that opposition but i would submit that that probably relates to the deficiency of the record there's no explanation there's no correction of the fact that there was opposition council will likely point to the fact that on the schedule there was a little line that says there was opposition but i would submit that if the board members really were aware that there was opposition when that  question had been presented someone should have spoken up to clarify there was opposition i've read through the comments several facilities raised the following the issue in the absence of any discussion of any correction highlights the inability for this court to understand why this is the word did what it did it's not enough to presume that the reasoning of the board was proper and what we're left standing here is wondering why why did they do and we have no choice but to speculate housel has come up with a good argument we're not standing here saying there is no possible basis by which this project ever could under the sun have been considered there obviously merits of the project the project didn't meet multiple of the criteria the problem is so long as it virtually affected parties given the right to administrative review that right has to have some meaning it has to feel some purpose it's easy and council is done it's easy to write off argument but what we are arguing is and what we would implore the court to consider adversely affected parties includes far more than just other facilities adversely affected parties is a defined term that has a long list of parties that all have a right to administrative review and included in that are individual providers other facilities down to individual consumers of health care who are affected by the decision of the  the idea that this is just an issue of competitors trying to protect their turf is simply untrue because what we're most concerned about is that anyone who has this right to administrative review should be allowed to have some basis some insight into why the board acted the way it did now if adversely affected parties didn't have a right to administrative review then the failure to provide any rationale or reasoning would have no harm and i think it's fair acknowledge it's not often that both sides of a project have a right to administrative review but in the event that we aren't the board isn't required to give some approve a project with no rationally no rationale no reasoning no insight the reason being is one of your group a project we don't have to do so and to be clear as a practical matter based on the way that the courts have interpreted the responsibilities o stand at a board meeting it will go any project will come forth and the board members will say i deny the project or i vote to deny because i find it doesn't conform with the financially i denied because of law that the board commuters scepter deny and it's the final step before the right to administrative review when a project approved that approval is the final step before the right to administrative review we're not saying that it requires finding fact law but we are saying is it's fundamentally unfair to allow the board to approve a project with no basis no rationale how else is the court to be able to determine what the reasoning  wonderful arguments as to why they might have i believe we have presented a equally good argument as to why the board could have reached the opposite decision but the fundamental requirement of putting a review board in a position to speculate i could avoid the plate language permit letter and then anyone who that person effected has the right to administrative review would have a simple jay vote as their basis for administrative review it's not a stretch we're not very far from that in this application more definitive statement you have a right to request certainly have no obligation to do so and it's not in a it's not an adverse effect in party's responsibility to make the board comply with the law it's the responsibility of the board to allow for meaningful administrative review there are there's ample case law that says that the review in courts will reverse if an agency makes a mistake the problem is we have no basis by which to made there are a specific example one of the he argues that was presented the only issue with the discussion was the notion that this is a facility that will be in a more rural community and more rural residents would prefer not to have to come into the city to get help that's fine the problem is that rationale is in fact the antithesis of the certificate of need process certificate of need process presume that there is a limited number of health care dollars that there needs to be an organized and comprehensive manner by which health care delivery will be overseen health care delivery would be best if it was a hospital on every corner with a nursing home across the street from the surgery center to the side the because i don't know but it may have been approved because the board decided you know something we're all individuals who don't want to go into the city shouldn't have to if that were the basis for the decision that would be fundamentally improper that would be a perfect example of the board not only failing to consider an important aspect of stature in front of it but considering in making the term nation based on something that is contrary to its regulations no i can't stand here before this tribunal and argue that that's why or do it because i have no basis to know it's not possible for a reviewing court to provide a meaningful way for the truth or if you want a decision can be issued without any basis or explanation now flow of information the better i think the problem is is the board can't be allowed to continue this process of providing no explanation no justification and as i submitted earlier this can  solved with a single work if the board member simply add to their practice i will approve the project because presumably the board members have a reason for the actions they take we want to believe that case law has supported that notion but at the same time it's not enough to presume overdue in court has to be able to know so if a board member simply is given the opportunity to say i approve this project because i find that the benefits of the project outweigh especially considering the need of rural residents but otherwise what we're going to be left with is if worse the affected parties have no choice but to seek the ministry of review because as we  looking at this decision there was no basis by which to determine we could perform our own analysis as to why we thought the project had no merit that's what we did in our arguments laying out why we thought the argument was arbitrary  approved when all we're doing is putting forth our best well educated well articulated yes so i would submit to the court that the right to administrative review is no less important when a project is approved than when it is denied statutory right that was part of the planning act and that is afforded to each of you individuals when it's denied when a project is denied the part of the right to administrative you know as the basis for the border station and there's a process by which they are given that information if a project allowed when a party has if this is allowed to continue when a project is approved part of that has that same right to administrative review we have no right no basis no means by which to know what's the basis for the board's decision and therefore there's no way to go forward to provide them a meaningful review to which they are static or there's no question considering them the plan to suggest that this decision can't be meaningfully reviewed and i'm going to address that but there's a piece of this issue that should be addressed up first a front and that's the question of a forfeiture because since two thousand and nine which is before the time of the ports decision here there's been a provision in the act section twelve eleven that provides that when one grants permit it allows competing facilities like the plaintiffs here or other adversely affected parties to to seek a more detailed decision from the board that was an administrative avenue that was available to them that they didn't pursue know and we believe that the decision here permit adequate judicial review but if the court were to find that that's not the case then in these circumstances where they have this avenue available to them and did not exercise it there should be no remit in this case the consequences of that should should fall to them i think in those circumstances the legislative scheme is decision provides for meaningful review and then we can look to that but again if they believe that they would like some more detail about this they could have requested that did not and so should not be heard to complain about that now with respect to the board's decision there's nothing in the act or the regulations or the appellate decisions considering the act to require or when it's granting a permit to make findings or conclusions they're more procedures upon tonight we do have it and hearing  included and so on but you don't have those procedures in granting a permit and they say well we're not just that we're not asking for findings and conclusions but in actuality they are essentially making a repackaged request for finding conclusions they're not asking for anything that's meaningfully distinguishable here they say well there's no reason we just want the courts reasoning they got a reason they got a procedurally sufficient and here's how we reach that conclusion we looked at the department's report the application materials and the testimony so we know what the board decided and we know the universe of materials that it used to reach that decision the court can conduct a meaningful judicial review on that basis just as it will in any other case it would look at ok the birth bound projects officially conforms with these criteria based on this evidence the court th looks to that evidence and determines whether that decision is substantially erroneous and or excuse me clearly erroneous or whether there's evidence to support it that is a meaningful judicial review just as the court would have done in other cases and just as courts have done and other decisions applying the planning act this is no different so they received a procedurally sufficient reason what they're asking for here it's not different from financing conclusions they're calling it elaboration and what they're saying implicit in that is the idea that the work had to specifically address each criteria so they're saying well we need to know how some of these criteria played no in reviewing the granted a permit the board doesn't have to specifically explain why it's approving the applications we don't need these type of explanations but how and why specific criteria were applied and prevent a court is regulations and the court was able to perform a meaningful judicial review and tells us we didn't need any additional explanations about how and why specific criteria were applied council has in instead tells us we don't need specific explanations about how individual criteria replied counsel did not address the additional case that's very relevant here which is a second district decision called access  center which is exactly the type of situation presented here where the board approves a permit for a treatment center even though all of the review criteria are not met and the claim is made that because all of these review criteria were not met and there was the need criteria that were not in conformance just as the case here i based on the department fact finding report so the claim is made well given that the board approved this and that the scripture were not met in the department's fact finding report the board should have to tell us why it's nonetheless approving the project and the court find we don't need that level of detail we don't need the board to tell us the specifics about how and why certain criteria were applied the court goes on performs a perfectly meaningful traditional review looking at that record finding that there is evidence to support the court's decision and that there's nothing capricious about the decision there that's exactly the situation that we have here so this is really a repackaged request to try to get a round notion that's already been rejected by courts to consider this this c prop not faced with quite the same situation but still performed meaningful judicial review and looked at a very backward based approach approach looking at materials that were before the board and again finding we can look at this record i think what's most significant is not a single one of those cases deals with what is sufficient to review the board's grant of a permit there's no in a supreme court decision there's no illinois comes down to sometimes maybe the case that the court cannot adequately understand its decision but that is very much not the case here where we have mostly harmonious with these regulations they don't need to go into specific criteria and they told us what they looked at so that is a meaningful review and review those materials and see if they support that conclusion benefits none of that's here and this is the most important the most important cases is the context of looking at what is required when the board approves a permit and there is sufficient the court can perform meaningful judicial review based on what was before it and that's consistent with the act the regulations all of the  whether it's such a facility makes sense and under the plane applies when a project is approved or denied and there are endless numbers of projects in which a project is denied and the product and then the case proceeds to the administrative review in front of an l j without ever seeking a  again some of the arguments that have been presented they reveal sort of the strawman nature of the arguments council stood here and said that we are requiring that the board members address each criteria no such requirement no such request has ever been made that we are demanding that for those that applications have perfect compliance to be approved that's not many we were asked now did i identify one of the options which is this would easily be solved in the event that board members when voting said i vote yes it was absolute that would be in my opinion the simplest fix but let me be clear and this relates to all of the case law that said that's only one option another option would be as if there was a meaningful discourse between the board such that when someone looked at the transcript of proceedings they were able to discern why the board did what it did counsel for the government slow for you and argued that in the record the basis the reasoning the explanation the rationale of the board's decision were all clearly pres if that's the case if this tribunal can look at the transcript of proceedings before this court and determine the basis the reasoning the explanation in the rationale then i submit we will likely lose the issue is this and counsel for the facilities argue that if there's any evidence in the book not the transcript proceeding but the record to support a decision then they have to wait that might be true if the only issue here worse is the decision arbitrary capricious but as i submitted earlier i don't think we ever get to the question of arbitrary creatures because as we stand here if as i believe when you look at the proceedings before the board there's no basis i wish to discern why the board did what it did then in reviewing court is left with no it's important to consider the holding area which were the court said where is here the testimony before the administrative agency is preserved for reviewing the record and specific the findings of fact are not required for judicial review ago if this tribunal believes that it can discern why the of facilities and services review board did what it did from the record of the proceedings before the court from the transcript before the court however i submit to you there is no insight there is no explanation and long as an adversely affected party will have a right to administrative review it is a statutory right which legislature chose to give that review must have meaning which means a review in court must have some basis by which to determine why the agency