Rochester Buckhart Action Group v. Young ( 2008 )

Filed 3/14/08 NO. 4-07-0682
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE ROCHESTER BUCKHART ACTION GROUP, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Sangamon County
ROBERT YOUNG, ) No. 07MR208
Defendant-Appellant. )
) Honorable
) Leslie J. Graves,
) Judge Presiding.
______________________________________________________________
JUSTICE TURNER delivered the opinion of the court:
In May 2007, plaintiff, Rochester Buckhart Action
Group, filed a motion for preliminary injunction against defen-
dant, Robert Young, to enjoin him from constructing or operating
a hog farm on his property pending the outcome of litigation. In
May 2007, the trial court granted the preliminary injunction. In
August 2007, the court denied defendant's motion to vacate.
On appeal, defendant argues the trial court erred in
failing to vacate the preliminary injunction. We reverse and
remand.
I. BACKGROUND
Plaintiff is an Illinois general not-for-profit corpor-
ation organized to critically examine and oppose activities that
adversely influence the use and value of property and the quality
of health and the environment in the Rochester and Buckhart areas
of Sangamon and Christian Counties. Defendant owns property in
Sangamon County and operates a dairy farm, consisting of approxi-
mately 40 dairy cows at any given time. Defendant had previously
had a hog-confinement building on the property for as many as
2,300 animals, but it was demolished in 2004.
In April 2007, plaintiff filed a three-count complaint
against defendant for declaratory judgment (count I), nuisance
(count II), and public nuisance (count III). Plaintiff alleged
defendant notified the Illinois Department of Agriculture
(Department) in February 2006 of his intent to construct a hog
finishing operation to house 3,750 hogs at his property. In his
notice of intent to construct, defendant stated the proposed
facility was an expansion of an existing facility and would not
be classified as a "new facility." He proposed to construct a
finisher building with a waste-storage structure under the
building. He noted the existing structure "has been razed." The
facility would be within 1,200 feet of an occupied residence and
within 3,700 feet of Buckhart. Defendant admitted the location
of the proposed facility would violate setback requirements if he
were constructing a "new facility."
In April 2006, the Department informed defendant that
the setback requirements had been met. Thereafter, the Depart-
ment reviewed construction plans and conducted preconstruction
site inspections with the understanding defendant's proposal did
not meet the definition of a "new facility."
Plaintiff claimed the proposed hog operation would
produce "massive volumes of feces, urine, blood[,] and other
waste," cause "extremely unpleasant odors," and "attract insects
and disease vectors." Plaintiff alleged persons residing and
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businesses operating near the facility would be subject to odors
and airborne contaminants that present a high probability of
injuring their health and welfare and a diminution of property
values.
In May 2007, plaintiff filed a motion for preliminary
injunction on count I of the complaint citing the Livestock
Management Facilities Act (Act) (510 ILCS 77/1 through 999 (West
2006)). Plaintiff stated the Act provided minimum setbacks,
stiffer design requirements, and an opportunity for public
notice, comment, and hearing when a "new facility" is contem-
plated. Plaintiff alleged defendant failed to notify the Depart-
ment of his intent to construct a "new facility" and failed to
subsequently file a registration with the Department. Having
failed to comply with the Act's provisions, he was not authorized
to construct the facility. Plaintiff also alleged that even if
defendant was expanding an existing facility, it remained a new
facility because he was expanding the number of animal units to
be confined on the property. Plaintiff sought a preliminary
injunction enjoining defendant from constructing and operating a
hog farm pending the outcome of the litigation.
In May 2007, the trial court granted the motion for
preliminary injunction. The court found plaintiff had shown
"there is a fair question that [p]laintiff will succeed on the
merits in claiming [d]efendant is constructing a 'new'
livestock[-]management facility as defined in the Act." Further,
plaintiff would suffer irreparable harm if an injunction did not
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issue and no adequate remedy at law or in equity existed. The
court enjoined defendant from continuing to construct a hog-
confinement building on his property pending further order.
In June 2007, defendant answered the complaint, raising
as an affirmative defense that he was not constructing a "new"
livestock-management facility but expanding an existing facility.
In July 2007, defendant filed a motion to vacate the preliminary
injunction, stating additional evidence had developed establish-
ing he was expanding an existing facility and the fixed capital
costs of the expansion did not exceed 50% of the fixed capital
costs of replacing the existing facility with an entirely new
one.
Defendant attached the deposition of Warren Goetsch to
his motion to vacate. Goetsch, an agricultural engineer, testi-
fied he worked as the Department's bureau chief of environmental
programs. He stated a review of defendant's information and
calculations indicated a plan for an expansion of an existing
facility. The Department determined defendant's proposed project
came in just below 41% of the fixed capital cost of replacing the
entire existing facility, thereby taking the project outside the
definition of a "new facility."
Defendant also filed an affidavit stating the entire
subject farm property had previously been designated by the
Department as a single livestock-management facility. Further,
the property had historically housed "pasture and dairy facili-
ties for dairy cows, both open and closed facilities for raising
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hogs, and a hog[-]confinement building for the finishing of hogs,
which numbered as high as 2,300 animals." The hog-confinement
building had outlived its useful life and was demolished in 2004
to make way for the construction of a replacement building. In
June 2006, defendant obtained financing for its construction.
In August 2007, the trial court denied defendant's
motion to vacate the preliminary injunction. Defendant then
filed a notice of interlocutory appeal pursuant to Supreme Court
Rule 307 (188 Ill. 2d R. 307).
II. ANALYSIS
Defendant argues the trial court erred in declining to
vacate the preliminary injunction, thereby enjoining the comple-
tion of his hog-confinement building. We agree.
"The purpose of the preliminary injunction is to
preserve the status quo pending a decision on the merits of a
cause." Callis, Papa, Jackstadt & Halloran, P.C. v. Norfolk &
Western Ry. Co., 195 Ill. 2d 356, 365-66, 748 N.E.2d 153, 159
(2001).
"To establish entitlement to a prelimi-
nary injunctive relief, the plaintiff must
demonstrate (1) a clearly ascertainable right
that needs protection; (2) irreparable harm
without the protection of an injunction; (3)
no adequate remedy at law for plaintiff's
injury; and (4) a substantial likelihood of
success on the merits in the underlying ac-
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tion." Franz v. Calaco Development Corp.,
322 Ill. App. 3d 941, 946, 751 N.E.2d 1250,
1255 (2001).
The trial court has the inherent power during the
pendency of a case to issue, modify, or vacate a preliminary
injunction. Patrick Media Group, Inc. v. City of Chicago, 252
Ill. App. 3d 942, 946, 626 N.E.2d 1062, 1065 (1993). The court
has the power "to dissolve a preliminary injunction absent change
of facts or law from the time of issuance to the time of dissolu-
tion, provided a sufficient basis exists to support dissolution."
Patrick, 252 Ill. App. 3d at 946, 626 N.E.2d at 1065. On appeal,
a trial court's decision to uphold or dissolve the injunction
will be not be reversed absent an abuse of discretion. Patrick,
252 Ill. App. 3d at 946, 626 N.E.2d at 1065.
Here, the trial court found plaintiff had a clearly
ascertainable right in need of protection, namely the rights of
citizens of Sangamon County and nearby residents to be afforded
the protections and procedural rights of the Act; irreparable
harm would result if an injunction did not issue; no adequate
remedy at law or in equity existed; and plaintiff showed a fair
question it would succeed on the merits.
The issue raised in defendant's motion to vacate was
whether a fair question existed that plaintiff would succeed on
the merits in claiming defendant was constructing a new
livestock-management facility as defined in the Act. The Act
imposes certain requirements on new facilities. Any new facility
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must comply with certain setback requirements (510 ILCS 77/35(c)
(West 2006)), have the proposal subjected to public notice and
informational meetings (510 ILCS 77/12 (West 2006)), and adhere
to construction restrictions and siting prohibitions (510 ILCS
77/13(b) (West 2006)).
The issue of whether defendant's proposal constitutes a
new facility or simply the expansion of an existing one depends
on the definition of "new facility" as set forth in the Act.
"'New facility' means a livestock[-]man-
agement facility or a livestock waste[-]han-
dling facility the construction or expansion
of which is commenced on or after the effec-
tive date of this Act [May 21, 1996]. Ex-
panding a facility where the fixed capital
cost of the new components constructed within
a 2-year period does not exceed 50% of the
fixed capital cost of a comparable entirely
new facility shall not be deemed a new facil-
ity as used in this Act." 510 ILCS 77/10.45
(West 2006).
At the time of the lawsuit, defendant's farm property
included a dairy-cow operation. A "'[l]ivestock[-]management
facility' means any animal feeding operation, livestock shelter,
or on-farm milking and accompanying milk-handling area." 510
ILCS 77/10.30 (West 2006). Plaintiff does not argue the dairy-
cow operation does not constitute a livestock-management facil-
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ity. Instead, plaintiff claims defendant proposed to construct a
new facility for the hogs. Defendant's facility had at one time
utilized a hog-confinement building and pit with over 2,000 hogs.
By 1999, the hog-confinement building had outlived its useful
life, and it was demolished in 2004 to make way for a replace-
ment. Defendant proposed construction of the replacement build-
ing in 2006.
The evidence before the trial court on the motion to
vacate indicates defendant's proposed construction did not
constitute a "new" facility. Instead, the facility already
existed. Whether considering the dairy-cow operation alone, or
together with the dormant hog operation, a livestock-management
facility was then operating. This is not a situation where an
applicant proposed to build "an entirely new facility," as
queried in the Department's application form, and construct that
facility from the ground up on a barren piece of land.
Plaintiff argues defendant is proposing a new facility,
not simply spreading out his existing dairy operation. However,
defendant sought to build a structure to house hogs on top of a
waste-storage containment area at the site where a similar
structure had been demolished. Moreover, the Act does not
differentiate among species in defining new facilities or live-
stock-management facilities, referring only to "animals" or
"livestock." Goetsch, the Department's bureau chief of environ-
mental programs, pointed out the Act is "species neutral."
Nowhere in the Act can plaintiff show that introducing, or
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reintroducing, as is the case here, a new or different species at
a facility constitutes the establishment of a new facility.
Further, the Act does not consider the number of animals present
or being added to a facility in determining whether a facility is
new. Plaintiff's claim that different facilities would result--
that being an animal feeding operation and the other a milking
operation--fails to recognize that cows are fed to produce milk.
Here, the facility was not new, in terms of infancy, but was the
expansion of an existing operation.
An expansion could still be deemed a "new facility" if
certain amounts are expended as stated in the Act. "Expanding a
facility where the fixed capital cost of the new components
constructed within a 2-year period does not exceed 50% of the
fixed capital cost of a comparable entirely new facility shall
not be deemed a new facility as used in this Act." 510 ILCS
77/10.45 (West 2006).
In the case sub judice, Goetsch found a review of
defendant's application indicated a plan for the expansion of an
existing facility. Based on defendant's cost projections, the
proposed project came in slightly below 41% of the fixed capital
cost of replacing the entire existing facility. Thus, the
expansion project did not meet the definition of "new facility"
since the costs did not exceed 50% of the cost of a comparable
entirely new facility.
We note the General Assembly found the current trend in
the livestock industry was "for larger concentration of animals
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at a livestock[-]management facility due to various market
forces." 510 ILCS 77/5(a)(4) (West 2006). With an increasing
number of animals comes the "potential for greater impacts on the
immediate area." 510 ILCS 77/5(a)(6) (West 2006). "[T]he
purpose of the Act is twofold: to promote the livestock industry
and to make sure that the livestock industry is a good neighbor
to nearby residents." Nickels v. Burnett, 343 Ill. App. 3d 654,
660, 798 N.E.2d 817, 823-24 (2003); see also 510 ILCS 77/5(b)
(West 2006). Although plaintiff no doubt has valid concerns
about the arrival of 3,750 hogs in the neighborhood, the facts in
this case do not establish the construction of a new facility as
defined by the Act. In arguing a new facility was being con-
structed, plaintiff's contentions regarding the different species
involved here and the increased number of animals on-site are not
covered in the Act and are matters better suited for the General
Assembly in determining the restrictions and requirements for the
construction of new facilities and the expansion of existing
ones. As defendant's proposal does not show the construction of
a new facility, the trial court erred in denying the motion to
vacate. Accordingly, the preliminary injunction must be dis-
solved. We make no determination as to the merits of any current
or future issues before the trial court.
III. CONCLUSION
For the reasons stated, we reverse the trial court's
judgment and remand for further proceedings.
Reversed and remanded.
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APPLETON, P.J., concurs.
COOK, J., dissents.
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JUSTICE COOK, dissenting:
I respectfully dissent and would affirm the trial
court's decision.
A motion to vacate a preliminary injunction, which the
majority wishes to allow, requires a defendant to prove that the
plaintiff presents no "fair question" as to the legal rights
involved. People ex rel. Stoney Island Church of Christ v.
Mannings, 156 Ill. App. 3d 356, 362, 509 N.E.2d 572, 576 (1987).
Defendant has not met this standard.
The majority's order turns on Department manager
Goetsch's deposition and attached Department documentation,
submitted subsequent to the trial court's granting of the injunc-
tion, indicating that defendant's proposed construction is not a
"new" facility. The Act defines a "new" facility as follows:
"[A] livestock[-]management facility or
a live-stock waste[-]handling facility the
construction or expansion of which is com-
menced on or after the effective date of this
Act. Expanding a facility where the fixed
capital cost of the new components
constructed within a 2-year period does not
exceed 50% of the fixed capital cost of a
comparable entirely new facility shall not be
deemed a new facility as used in this Act."
510 ILCS 77/10.45 (West 2006).
Goetsch stated in his deposition that defendant's project consti-
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tuted an "expansion," the cost of which was only 41% of the cost
to complete an entirely new structure.
The notice and processing requirements differ greatly
depending on whether the proposed construction qualifies as a
"new" facility. Section 11(a) and section 12 of the Act control
the notice and processing requirements for an owner's application
to construct a "new" facility serving 1,000 or more animal units
(or a facility that utilizes a lagoon). 510 ILCS 77/11(a), 12
(West 2006). One thousand animal units equals about 714 milking
dairy cows or 2,500 swine weighing over 55 pounds. 510 ILCS
77/10.10 (West 2006). Under section 11(a), the owner of any
proposed facility, regardless of whether it is "new," must file a
notice of intent to construct with the Department and include
information regarding setback requirements (for a "new" facility)
or maximum feasible location requirements (for a facility that is
not "new"). 510 ILCS 77/11(a) (West 2006). Then, under section
12, the Department sends a copy of the notice form that was filed
under section 11(a) to the local county board, which will in turn
publish notice of the proposed new facility, essentially inviting
public comment during a 30-day review period. 510 ILCS 77/12(a)
(West 2006). The county board, or 75 county residents, may
request that the Department hold an informational hearing where
the owner attends and answers questions. 510 ILCS 77/12(a) (West
2006). The county board then submits a nonbinding recommendation
to the Department containing a statement as to whether the
proposed facility achieves the eight siting criteria outlined in
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subsection 12(d). 510 ILCS 77/12(d) (West 2006). Among the most
relevant siting criteria are whether (1) the design, location,
and proposed operation will protect the environment by being
consistent with this Act; (2) the facility is located within a
100-year floodplain or otherwise environmentally sensitive area
and the construction plans are consistent with the goal of
protecting the safety of the area; (3) the owner has submitted
plans for operation that minimize the likelihood of any environ-
mental damage to the surrounding area from spills, runoff, and
leaching; (4) the construction or modification of a new facility
is consistent with existing or projected community growth as they
pertain to applicable zoning and setback requirements for popu-
lated areas as defined by this Act; (5) the location minimizes
any incompatibility with the surrounding area's character; and
(6) odor control plans are reasonable. See 510 ILCS 77/12(d)
(West 2006).
In our case, the Department followed section 11(b) in
processing defendant's application to construct, rather than
section 12, because the Department was operating under the
assumption that defendant's project was not a "new" facility.
Section 11(b) applies to proposed construction projects that are
not subject to section 12 (i.e., they are not "new" and they do
not utilize a lagoon). The section 11(b) requirements are less
strenuous than those in section 12; they require only that the
construction plans and design specifications of the proposed
structure be filed with the Department within 10 calendar days of
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the anticipated dates of construction and that the Department
review the documents to determine if all information has been
submitted or if clarification is needed. 510 ILCS 77/11(b) (West
2006). The Department then has 15 calendar days within receipt
of the owner's notice to notify the owner that construction may
begin or that clarification is needed. 510 ILCS 77/11(b) (West
2006).
In addition to the more strenuous notice and processing
requirements placed on "new" facilities as described in section
12, "new" facilities also are subject to additional setback (510
ILCS 77/35(c) (West 2006)) and design requirements concerning
flood protection and other environmentally sensitive areas (510
ILCS 77/13(b) (West 2006)). Another way of looking at the
question posed by the plaintiff here is not necessarily whether
defendant's project constitutes a "new" facility, but whether it
is the sort of project that legislature intended to be subjected
to more strenuous notice, processing, and setback requirements as
described above.
We find M.I.G. Investments, Inc. v. Environmental
Protection Agency, 122 Ill. 2d 392, 523 N.E.2d 1 (1988), to be
instructive. In M.I.G., the owner of a waste-disposal landfill
sought a permit to increase the landfill's maximum elevation.
The owner argued that the vertical expansion of an existing
pollution-control facility did not constitute a "new" facility
under section 3(x)(2). M.I.G., 122 Ill. 2d at 395-96, 523 N.E.2d
at 2, citing Ill. Rev. Stat. 1985, ch. 111 1/2, par. 1003(x)(2).
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Section 3(x)(2) defined a "'new regional pollution[-]control
facility'" as "'the area of expansion beyond the boundary of a
currently permitted regional pollution[-]control facility.'"
M.I.G., 122 Ill. 2d at 395, 523 N.E.2d at 2, quoting Ill. Rev.
Stat. 1985, ch. 111 1/2, par. 1003(x)(2). Traditionally "expan-
sions" and "boundaries" under section 3(x)(2) had been assumed to
be horizontal, not vertical. M.I.G., 122 Ill. 2d at 396, 523
N.E.2d at 2; see also M.I.G. Investments, Inc. v. Environmental
Protection Agency, 151 Ill. App. 3d 488, 495, 502 N.E.2d 1042,
1046 (1987) (as many as 125 permits had been issued by the agency
for vertical expansion without triggering the more strenuous
review process that accompanied "expansions" under 3(x)(2)). If
the vertical expansion did not qualify the landfill as a "new"
facility, the proposed project would not trigger new siting and
hearing requirements under the Illinois Environmental Protection
Act (Environmental Act) (415 ILCS 5/1 through 58.7 (West 2006)).
Criteria set forth in section 39.2 of the Environmental Act,
among other things, required that (1) the waste facility be
designed and operated so as to protect the public health and
safety; (2) be located so as to minimize incompatibility with the
character of the surrounding area; (3) be located outside the
boundary of the 100-year flood plain or that the site be flood-
proofed; (4) the plan of operations be designed to minimize
danger to the surrounding area in terms of fire, spills, or other
operational accidents; and (5) traffic plans be designed to
minimize the impact on existing traffic flows. M.I.G., 122 Ill.
- 16 -
2d at 398-99, 523 N.E.2d at 4, citing Ill. Rev. Stat. 1985, ch.
111 1/2, par. 1039.2(a). The court held that although expansion
of a facility had historically been determined by lateral limita-
tions, vertical expansion should also trigger the "new
pollution[-]control facility" siting and hearing requirements.
M.I.G., 122 Ill. 2d at 399-400, 523 N.E.2d at 4. The court
reasoned:
"To expand the boundaries of a landfill,
whether vertically or laterally, in effect,
increases its capacity to accept and dispose
of waste. An increase in the amount of waste
contained in a facility will surely have an
impact on the criteria set out in section
39.2(a), which local governmental authorities
are to consider in assessing the propriety of
establishing a new pollution[-]control facil-
ity. Indeed, adjusting the dimensions of a
landfill facility to increase the amount of
waste stored will surely have an impact on
'the danger to the surrounding area from
fire, spills, or other operational accidents'
and 'the character of the surrounding area.'
[Citation.]" M.I.G., 122 Ill. 2d at 401, 523
N.E.2d at 5.
Allowing defendant's proposed project to bypass all the
notice, processing, and siting requirements set in place by
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sections 12, 35(c), and 13(b) would be inconsistent with the
purposes of the Environmental Act. The Illinois Pollution
Control Board set forth some of the first regulations concerning
the health and safety impacts of livestock-management facilities
in 1978. See 35 Ill. Adm. Code §501.102(e) (filed and eff.
January 1, 1978). The purpose of these regulations was to
prevent air and water pollution caused by a failure to plan with
regard to proper environmental safeguards concerning the con-
struction, location, and operation of certain livestock facili-
ties. 35 Ill. Adm. Code §501.102(e), as amended at 15 Ill. Reg.
10075, 10082 (eff. July 1, 1991). There is a danger that,
without adequate environmental planning and safeguards,
livestock-management facilities could cause air pollution, render
waters harmful to public health, and even compromise the health
and safety of the animals housed therein. 35 Ill. Adm. Code
§501.102(c), as amended at 15 Ill. Reg. 10075, 10081 (eff. July
1, 1991).
Later, in 1996, the Illinois legislature enacted the
Act with the purpose of "maintain[ing] an economically viable
livestock industry in the State of Illinois while protecting the
environment for the benefit of both the livestock producer and
persons who live in the vicinity of a livestock[-]production
facility." 510 ILCS 77/5(b) (West 2006). The Act endorsed
existing regulations concerning the management of livestock
production, yet felt some enhancements were needed. 510 ILCS
77/5(a)(1), (a)(5) (West 2006). The legislature noted that, due
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to market forces, the trend has been for livestock-management
facilities to house larger concentrations of animals. 510 ILCS
77/5(a)(4) (West 2006). With more animals comes a greater threat
of adverse impacts to the environment, and precautions must be
taken so that waste-elimination mechanisms do not compromise the
groundwater in the area or create odors that are offensive to
neighbors. 510 ILCS 77/5(a)(6),(a)(7), (a)(8) (West 2006).
Here, defendant is increasing the number of animals
housed in his facility from 56 animal units (40 milking dairy
cows equals 56 animal units) to 1,500 animal units (3,750 swine
equals 1,500 animal units). 510 ILCS 77/10.10 (West 2006).
Given that the legislature was mindful of the tendency toward
increased concentration of animal units and the resulting harm to
the environment when it enacted the Act, it seems unreasonable
that defendant could change the nature and character of his
operation from a de minimus operation housing only 56 animal
units to a very large operation housing 1,500 animal units
without engaging in any of the notice, processing, and siting
requirements set forth in section 12. Although section 10.45 of
the statute defining "new" facilities does not contemplate the
number of animal units as a factor, section 12, which governs
whether a more strenuous evaluation process applies, does.
Again, section 12 applies to new facilities that contain more
than 1,000 animal units. The introduction of a high concentra-
tion of animal units where no such concentration previously
existed surely impacts the requirements set out in section 12(d)
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and as described above. See M.I.G., 122 Ill. 2d at 401, 523
N.E.2d at 5 (implying that whether a change to a facility impacts
the siting and hearing requirements is a factor in determining
whether that change should trigger them). Here, introducing a
high concentration of animals to the area would surely impact the
section 12(d) requirements of "minimiz[ing] the likelihood of any
environmental damage to the surrounding area from spills, runoff,
and leaching," and "[reasonable] odor control plans." 510 ILCS
77/12(d)(5), (d)(6) (West 2006).
Perhaps the legislature did mean to grandfather in
preexisting structures containing 1,000 animal units in the sense
that any proposed moderate expansion on such structures would not
be subject to the strenuous section 12 evaluation process.
However, the facility at issue in this case is not a preexisting
structure housing 1,000 animal units. At the most, it is just a
(virtually nonoperating) preexisting structure. The fact that
property was used many years ago to house large numbers of
animals does not mean the owner gets a "free pass," that every
future project will now be labeled just an "expansion."
However, it is not even certain that defendant's
project constitutes the "expansion" of a preexisting structure
rather than the "construction" of a structure. The words "con-
struction" and "expansion" are not defined by the Act. If the
proposed changes do not constitute an "expansion" under the
statute, then the fact that the project costs less than 50% of
the cost to build an entirely new structure is irrelevant, taking
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away the majority's basis for reversing the trial court. The
existing housing structure has been completely razed. Defendant
is not just adding 50% to what is already there. Is there not a
"fair question" that defendant's project should constitute a
"construction" under these circumstances? We can only guess why
the proposed building cost is only 41% of building an entirely
new structure if the old structure has been razed; perhaps it is
because defendant proposes to build in the footprint of the old
structure, or perhaps it is because adjoining storage or equip-
ment buildings on the property remain.
The only reason defendant offers to support the notion
that this court should consider his project an "expansion"
costing 41% of the cost of building the same structure from
scratch is that Department manager Goetsch labeled it as such.
Defendant argues that this "finding of fact" on the part of
Goetsch is entitled to deference. See XL Disposal Corp. v.
Zehnder, 304 Ill. App. 3d 202, 207, 709 N.E.2d 293, 297 (1999)
(court should give deference to administrative agency's determi-
nation of fact). However, this level of deference, as noted in
XL Disposal and other cases cited by defendant, applies to
administrative-review cases, where the court reviews findings of
fact as determined by an administrative law judge at an adminis-
trative hearing, not findings of fact as determined by an em-
ployee of an administrative agency. See 5 ILCS 100/10-5 through
10-70 (West 2006) (Illinois Administrative Procedure Act regard-
ing rules for contested-case proceedings). Under the Illinois
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Administrative Procedure Act, an administrative agency is re-
quired to make findings of fact as condition precedent to an
order, which must be specific enough to enable courts of review
to intelligently review the decision of the agency. Allied
Delivery System, Inc. v. Illinois Commerce Comm'n, 93 Ill. App.
3d 656, 664-65, 417 N.E.2d 777, 783 (1981); 5 ILCS 100/10-50
(West 2006) (governing administrative decisions and orders).
Here, no such order containing said findings of fact has been
made for us to review.
Finally, defendant argues that even if the Act is
ambiguous as to what types of construction and/or expansion
projects are subject to the more strenuous section 12 notice and
processing requirements, this court should give deference to the
Department's determination that defendant's project is not
subject to section 12, 35(c), and 13(b) requirements. An admin-
istrative agency's interpretation of a statute it is charged with
administering does not "bind" a court of review in the sense that
a court of review must accept it unconditionally regardless of
its reasonableness; however, if the agency's interpretation is a
permissible one, the fact that we ourselves may have interpreted
the statute differently does not justify reversal. Illinois Bell
Telephone Co. v. Illinois Commerce Comm'n, 362 Ill. App. 3d 652,
657, 840 N.E.2d 704, 709-10 (2005). "The longer an agency has
adhered to an interpretation of the statute, the more weight the
interpretation deserves; but consistency and duration are not
prerequisites to our duty of deference." Illinois Bell, 362 Ill.
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App. 3d at 657, 840 N.E.2d at 709. Here, Goetsch conceded that
bringing in a very large number of animals to a facility or
property that most recently housed only a much smaller number of
a different animal species was an unusual request that the
Department had not dealt with often. Under these circumstances,
and with strong emphasis on the purposes of the Act, I believe a
fair question exists as to whether defendant's project should
satisfy the Act's notice, processing, and siting requirements
imposed on new facilities.
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