County of Kankakee v. Illinois Pollution Control Board

No. 3--04--0271
(Consolidated with Nos. 3--04--0285 and 3--04--0289)
Filed December 4, 2009–CORRECTED COPY 1/26/10
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2009
COUNTY OF KANKAKEE, ILLINOIS, )
EDWARD D. SMITH, KANKAKEE )
COUNTY STATE'S ATTORNEY, )
WASTE MANAGEMENT OF ILLINOIS, )
INC., and BYRON SANDBERG, ) Appeal from the Illinois
) Pollution Control Board
Petitioners-Appellants, )
) Docket Nos. PCB 04--33
v. ) PCB 04--34
) PCB 04--35
THE ILLINOIS POLLUTION CONTROL )
BOARD, THE CITY OF KANKAKEE, )
ILLINOIS, TOWN & COUNTRY UTILITIES, )
INC., and KANKAKEE REGIONAL )
LANDFILL, LLC, )
)
Respondents-Appellees. )
JUSTICE McDADE delivered the opinion of the court:
For convenience and clarity, this opinion uses the following short-form references: Town
& Country Utilities, Inc. (Town & Country); Town & Country and Kankakee Regional Landfill,
LLC, collectively (Applicants); the County of Kankakee, Illinois (County); Waste Management
of Illinois, Inc. (Waste Management); Byron Sandberg (Sandberg); the County, Waste
Management, and Sandberg collectively (Objectors); the City of Kankakee, Illinois (City); the
city council of the City of Kankakee (City Council or Council); the Illinois Pollution Control
Board (Board); and the Illinois Environmental Protection Act (Act) (415 ILCS 5/1 et seq. (West
2004)).
Following an unsuccessful request, Applicants filed a second request seeking local siting
approval for a proposed landfill within the City. A lengthy hearing ensued, whereupon the City
Council approved the request. Objectors petitioned for review before the Board, which upheld
the City Council's decision. Objectors then filed the instant appeal challenging the approval of
Applicants' second request on several grounds.
RELEVANT STATUTORY PROVISIONS
Subsection 39(c)) of the Act declares that "no permit for the development or construction
of a new pollution control facility may be granted by the [Environmental Protection] Agency
unless the applicant submits proof to the Agency that the location of the facility has been
approved by the *** governing body of the municipality *** in which the facility is to be located
in accordance with Section 39.2 of this Act." 415 ILCS 5/39(c)) (West 2004). In relevant part,
section 39.2 reads:
"(a) The *** governing body of the municipality *** shall approve or disapprove
the request for local siting approval for each pollution control facility which is subject to
such review. An applicant for local siting approval shall submit sufficient details
describing the proposed facility to demonstrate compliance, and local siting approval
shall be granted only if the proposed facility meets the following criteria:
***
(ii) the facility is so designed, located and proposed to be operated that the
public health, safety and welfare will be protected;
2
***
(iv) *** (B) for a facility that is a sanitary landfill or waste disposal site,
the facility is located outside the boundary of the 100-year floodplain ***;
***
(viii) if the facility is to be located in a county where the county board has
adopted a solid waste management plan consistent with the planning requirements
of the Local Solid Waste Disposal Act or the Solid Waste Planning and Recycling
Act, the facility is consistent with that plan[.] ***
***
(b) No later than 14 days before the date on which the *** governing body of the
municipality receives a request for site approval, the applicant shall cause written notice
of such request to be served either in person or by registered mail, return receipt
requested, on the owners of all property within the subject area not solely owned by the
applicant, and on the owners of all property within 250 feet in each direction of the lot
line of the subject property, said owners being such persons or entities which appear from
the authentic tax records of the County in which such facility is to be located ***.
***
Such notice shall state the name and address of the applicant, the location of the
proposed site, the nature and size of the development, the nature of the activity proposed,
the probable life of the proposed activity, the date when the request for site approval will
be submitted, and a description of the right of persons to comment on such request as
hereafter provided.
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(c) An applicant shall file a copy of its request with the *** governing body of the
municipality in which the proposed site is located. The request shall include (i) the
substance of the applicant's proposal and (ii) all documents, if any, submitted as of that
date to the [Environmental Protection] Agency pertaining to the proposed facility, except
trade secrets as determined under Section 7.1 of this Act. All such documents or other
materials on file with the *** governing body of the municipality shall be made available
for public inspection at the office of the *** governing body of the municipality and may
be copied upon payment of the actual cost of reproduction.
Any person may file written comment with the *** governing body of the
municipality concerning the appropriateness of the proposed site for its intended purpose.
The *** governing body of the municipality shall consider any comment received or
postmarked not later than 30 days after the date of the last public hearing.
***
(m) An applicant may not file a request for local siting approval which is
substantially the same as a request which was disapproved pursuant to a finding against
the applicant under any of criteria (i) through (ix) of subsection (a) of this Section within
the preceding 2 years." 415 ILCS 5/39.2(a)(ii), (a)(iv), (a)(viii), (b), (c), (m) (West 2004).
If the governing body of a municipality grants a request for local siting approval, a third
party may petition the Board for a hearing to contest the decision, "such hearing to be based
exclusively on the record before *** the governing body of the municipality." 415 ILCS
5/40.1(b) (West 2004). In making its determination, "the Board shall include in its consideration
*** the fundamental fairness of the procedures used by the *** governing body of the
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municipality." 415 ILCS 5/40.1(a) (West 2004).
PROCEDURAL FACTS
1. The 2002 Request
On March 13, 2002, Applicants filed a request with the City for local siting approval of a
proposed landfill. Objectors opposed the request, but the City Council approved it after
conducting a multi-day hearing. Objectors then petitioned for review before the Board, which
reversed the City Council's decision. Specifically, the Board concluded that the Council erred in
finding that the proposed landfill met the criterion in subsection 39.2(a)(ii) of the Act (415 ILCS
5/39.2(a)(ii) (West 2002) (protection of public health, safety, and welfare)).
Applicants appealed to this Court (Town & Country Utilities, Inc. v. Pollution Control
Board, No. 3-03-0025 (unpublished order under Supreme Court Rule 23)) (Town & Country I),
and we reinstated the City Council's decision. The County and Board then appealed to the
Illinois Supreme Court, which held that: (1) the decision to be reviewed was the decision issued
by the Board, not the Council; and (2) the Board's decision was not against the manifest weight
of the evidence. Town & Country Utilities, Inc. v. Pollution Control Board, 225 Ill. 2d 103, 122
(2007). Accordingly, the Board's decision was reinstated and Applicants' 2002 siting request
failed.
2. The 2003 Request
On March 7, 2003, before their appeal to this court in Town & Country I, Applicants filed
a new request with the City for siting approval of a proposed landfill at the same location
described in their 2002 request. Waste Management moved to dismiss the new request, arguing
that it was barred by subsection 39.2(m) of the Act. See 415 ILCS 5/39.2(m) (West 2004)
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(prohibiting a "request for local siting approval which is substantially the same as a request
which was disapproved *** within the preceding 2 years"). The City Council denied the motion
to dismiss, finding that the two requests were not substantially similar and that the 2002 request
had not been disapproved within the meaning of subsection 39.2(m) because the local siting
authority, the Council, had approved it despite the Board's subsequent reversal.
On the merits, the City Council granted Applicants' 2003 request. Objectors petitioned
for review before the Board, raising claims similar to those made against the 2002 request. This
time, however, the Board confirmed the Council's decision. As to the denial of Waste
Management's motion to dismiss, the Board found that subsection 39.2(m) was inapplicable for
the same reason articulated by the City Council: Applicants' 2002 request had not been
disapproved within the meaning of the statute because the local siting authority, the Council,
approved it. Since this finding was dispositive on the question, the Board did not address
whether Applicants' 2003 request was substantially similar to their 2002 request.
Objectors filed the instant appeal (Town & Country II) which, having been decided, now
comes before us on a supervisory order from the supreme court. County of Kankakee, Illinois, et
al. v. Pollution Control Board et al., 231 Ill. 2d 659, 902 N.E.2d 1077 (2009). The supreme
court has directed us to vacate our order and reconsider the cause as follows: (1) determine
whether Applicants' 2002 request was disapproved for purposes of subsection 39.2(m) of the Act;
(2) if we find such disapproval, determine whether the cause must be remanded to the Board for
a decision on whether Applicants' 2003 request was substantially similar to their 2002 request;
and (3) if we find that remand is not necessary, decide the parties' remaining issues on appeal.
ANALYSIS
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Disposition of the instant appeal has been delayed by multiple changes in authorship of
the court’s judgment and Justice Holdridge deserves credit for the bulk of this opinion. Now, in
accord with the supreme court’s supervisory order, we find that (1) Applicants’ 2002 request was
disapproved for purposes of subsection 39.2(m) of the Act when the Board reversed the City’s
Council’s decision on the 2002 application on the grounds the Council erred in finding that the
proposed landfill met the criterion in subsection 39.2(a)(ii) if the Act; (2) remand is not necessary
to determine whether Applicants' 2003 request was substantially similar to their 2002 request
because their 2003 request fails to satisfy all of the criteria in section 39.2(a) (415 ILCS 5/39.2(a)
(West 2004)); and (3) our finding that the 2003 application fails to satisfy all of the statutory
criteria is dispositive because all of the statutory criteria must be met as a precondition for local
siting approval.
1. Refiling
Subsection 39.2(m) of the Act reads: "An applicant may not file a request for local siting
approval which is substantially the same as a request which was disapproved pursuant to a
finding against the applicant under any of criteria (i) through (ix) of subsection (a) of this Section
within the preceding 2 years." 415 ILCS 5/39.2(m) (West 2004). Objectors argue that this bar
applies because (1) Applicants' 2002 request was "disapproved" when the Board reversed the
City Council's grant of approval, and (2) the 2003 request was substantially similar to the 2002
request. Regarding the prior-disapproval requirement, Applicants and the Board argue that the
2002 request was not disapproved within the meaning of the statute because the local siting
authority, the City Council, approved it. Applicants also argue that the 2003 request was not
substantially similar to the 2002 request.
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This part of the issue involves statutory construction, a question of law and we review the
Board's decision de novo. Shields v. Judges' Retirement System, 204 Ill. 2d 488, 492 (2003).
Though we are not bound by the Board's interpretation of subsection 39.2(m), we will give it
weight in our own construction. Shields, 204 Ill. 2d at 492 ("As a general rule, courts will accord
deference to the interpretation of a statute by the agency charged with its administration");
Cojeunaze Nursing Center v. Lumpkin, 260 Ill. App. 3d 1024, 1029 (1994) ("Although not
formally bound by administrative decisions interpreting the legal effect of statutory language, a
court will give an administrative agency's conclusions great weight in the court's own statutory
construction").
A reviewing court's responsibility when construing a statute is to ascertain and give effect
to the intent of the legislature. In re Madison H., 215 Ill. 2d 364, 372 (2005). The best evidence
of legislative intent is the language used in the statute itself, which must be given its plain and
ordinary meaning. Paris v. Feder, 179 Ill. 2d 173, 177 (1997). The statute must be evaluated as a
whole, with each provision construed in connection with every other section. Abrahamson v.
Illinois Department of Professional Regulation, 153 Ill. 2d 76, 91 (1992). "Accordingly, words
and phrases should not be construed in isolation, but must be interpreted in light of other relevant
provisions of the statute." Southern Illinoisan v. Illinois Department of Public Health, 218 Ill. 2d
390, 415 (2006).
Applicants’ 2002 request was disapproved for purposes of subsection 39.2(m) of the Act.
Although section 39.2(m) references “disapproval” under subsection (a), and subsection (a)
contains no mention of the Board, we are not limited to section 39.2(a) for context in which to
determine the meaning of “disapproved” in section 39.2(m). "The statute should be evaluated as
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a whole; each provision should be construed in connection with every other section."
Abrahamson v. Illinois Department of Professional Regulation, 153 Ill. 2d 76, 91, 606 N.E.2d
1111, 1118 (1992). Therefore, pursuant to the rules of statutory construction, the proper context
in which subsection 39.2(m) speaks of a prior request that was "disapproved pursuant to a finding
against the applicant" (415 ILCS 5/39.2(m) (West 2004)) is Title X of the Act as a whole, not
just subsection 39.2(a) of Title X of the Act.
When read in the proper context, a prior request is "disapproved pursuant to a finding
against the applicant" following resolution of any statutorily prescribed "contest [of] the appeal
of the county board or the governing body of the municipality." 415 ILCS 5/40.1 (West 2004).
Resolution of a contest may occur by a written decision by the Board or the passage of "120 days
after the date on which [the Board] received the petition" to contest the decision of the county
board or governing body. 415 ILCS 5/40.1 (West 2004). Under section 40.1 of the Act, if a
petition to contest "approval" by the local siting authority is filed, but the Board fails to take
action thereon, it is only after the passage of 120 days that "the petitioner may deem the site
location approved." 415 ILCS 5/40.1 (West 2004).
The Act signals the legislature’s intent to vest approval and disapproval authority at both
the local level and at the review level. The legislature referred to the "local siting review
process" not the "local approval or disapproval process." 415 ILCS 5/39.2(n) (West 2004). This
use of language reflects the legislature’s intent that the local siting approval is just the first step
(where admittedly only one step may be necessary) in the process to approve or disapprove a
siting application.
The coextensive authority provided to the "local" and "review" siting procedures is also
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reflected by legislature’s failure to distinguish between "approval authority" at the local level and
at the review level in section 39.2(m). Section 39.2(m) refers to "a request which was
disapproved pursuant to a finding against the applicant under any of criteria (i) through (ix)."
415 ILCS 5/39.2(m) (West 2004). The Board found that the 2002 application failed to meet the
criterion in subsection 39.2(a)(ii) and reversed the County’s decision. The Board’s decision is,
on its face, "a finding against the applicant under any of criteria (i) through (ix) of subsection
(a)." 415 ILCS 5/39.2(m) (West 2004).
Based on the foregoing, no statutory basis exists to conclude that the time limitation in
section 39.2(m) does not apply equally to a finding by the Board "disapproving" an application as
to a finding by the local siting authority "approving" an application pursuant to any of the criteria.
Accordingly, we hold that Applicants’ 2002 request was “disapproved” by the Board for
purposes of subsection 39.2(m) of the Act. Although our holding, standing alone, would seem to
require an analysis of the effect of the Board’s failure to determine whether Applicants’ 2003
request was substantially similar to their 2002 request, we do not believe that substantial inquiry
into the matter is either necessary to comply with the supreme court’s supervisory order or
prudent in this case.
We are all in agreement on the remaining issues in this case. Our holding on the issue of
whether the proposed facility is consistent with the County’s solid waste management plan is
dispositive because, regardless of whether applicants are restricted from filing their request by
section 39.2(m), their request fails to satisfy all of the statutory criteria, and all of the statutory
criteria must be met as a precondition for local siting approval. Stated differently, the Board’s
failure to consider the substantial similarity issue is of no effect on the ultimate outcome of these
10
proceedings, and, consistent with direction from the supreme court, we will not waste judicial
resources on further analysis. In re Alfred H.H., 233 Ill. 2d 345, 351, 910 N.E.2d 74, 78 (2009)
(“As a general rule, courts in Illinois do not decide moot questions, render advisory opinions, or
consider issues where the result will not be affected regardless of how those issues are decided”).
2. Notice
The County argues that Applicants failed to comply with the notice requirement of
subsection 39.2(b) of the Act, which reads:
"No later than 14 days before the date on which the *** governing body of the
municipality receives a request for site approval, the applicant shall cause written notice
of such request to be served either in person or by registered mail, return receipt
requested, on the owners of all property within the subject area not solely owned by the
applicant, and on the owners of all property within 250 feet in each direction of the lot
line of the subject property, said owners being such persons or entities which appear from
the authentic tax records of the County in which such facility is to be located ***." 415
ILCS 5/39.2(b) (West 2004).
This requirement is jurisdictional and must be followed to vest the local siting authority with
power to hear a landfill request. Waste Management of Illinois, Inc. v. Pollution Control Board,
356 Ill. App. 3d 229, 234 (2005). Since the pertinent facts are undisputed in the instant case, this
issue presents a question of law subject to de novo review. Waste Management, 356 Ill. App. 3d
at 231-32.
The land within the statutory notice area included Parcel 13-16-23-400-001, the
Bradshaw farm. Sheila Donahoe, the County's chief assessment officer, testified that she
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searched the County's authentic tax records to determine who owned the Bradshaw farm.
Specifically, she reviewed a property record card contained in a computer database shared
between the assessor's office and the treasurer's and tax collector's office. The card identified six
co-owners of the farm: Gary Bradshaw, James Bradshaw, Jay Bradshaw, Ted Bradshaw, Denise
Fogle, and Judith Skates. For all owners except Skates, the address listed in the database was
22802 Prophet Road, Rock Falls, Illinois, 61071. Pursuant to a change-of-address card
submitted by Skates, her address was listed as 203 South Locust Street, Onarga, Illinois, 60955-
1224. The card was scanned into the County's database on March 7, 2002, meaning Skates must
have submitted it sometime before then. The name she used on the card was "Skates, Judith Ann
Bradshaw."
The database also included "mailing flags" for the Bradshaw farm. Pursuant to these
flags, tax bills and notices were not to be sent to Gary Bradshaw, James Bradshaw, Jay
Bradshaw, Ted Bradshaw, and Denise Fogle. Instead, all such mailings were to be sent only to
Judith Skates at her Onarga address. In this regard, the following colloquy occurred during
Donahoe's testimony:
"Q. Now, how would you know to send tax bills and notices for all of these
individuals, to Judith Skates in Onarga rather than to the various Bradshaws in Rock
Falls?
A. Because that was their request to send them to her and we indicated that we
would send notices relating to the taxes, namely, the tax bill, change notice, delinquent
notice, extension notice, et cetera, to her.
***
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Q. Ms. Donahoe, based upon Judith Skates' requests or request, as indicated in
the name and address change, which she filed, notices and bills are no longer sent to any
of the Bradshaws at the Rock Falls address, is that correct?
A. That's correct.
Q. And if you were to send anything to any of the Bradshaws, it will be sent
here, to Judith Skates in Onarga, Illinois?
A. If I were sending anything on this parcel as it relates to these four notices, it
would be sent to Judith Skates."
Accordingly, the bill for taxes due on the farm in 2002 was sent exclusively to Skates.
Donahoe testified that the County did not "send any other types of documents to property
owners besides documents in those four categories" (tax bill, change notice, delinquent notice,
and extension notice), and that the mailing flags did not mention notices under subsection
39.2(b) of the Act. When asked if anyone in her office had informed Applicants "that Judith
Skates was the agent for service of process of all of the other owners of that property," Donahoe
answered: "In talking with my staff and questioning them about this, the only information they
would have that would be on these cards, it would indicate that every owner is listed and every
owner has an address."
Mark Frechette, the County's treasurer and ex officio tax collector, submitted an affidavit
stating that he reviewed the County's authentic tax records, which showed five owners (Gary
Bradshaw, James Bradshaw, Jay Bradshaw, Ted Bradshaw, and Denise Fogle) with a single Rock
Falls address and one owner (Judith Skates) with an Onarga address.
Thomas Volini, Town & Country's president, testified that he was familiar with the
13
Bradshaw farm. In a discovery deposition, he stated that Judith Skates was "the taxpayer of
record" and "the party to be contacted in respect of the taxes on that property." He also explained
that in connection with Applicants' 2002 request (Town & Country I), an attempt had already
been made to serve notice at 22802 Prophet Road, Rock Falls, Illinois. In addition to the other
five owners, the County's tax records once indicated that Skates could be served at the Rock Falls
address as the taxpayer of record. However, in 2002 the process server discovered "that none of
the parties listed *** were available at that address." Specifically, the resident at the address
advised that "none of those parties resided [there] and that the only competent way of contacting
them would be to contact Judith Skates who was acting as their representative." The resident
then provided Skates' Onarga address for such contact.
Regarding his efforts to identify property owners in the instant case (Town & Country II),
Volini testified that he interviewed the county clerk, the county treasurer, and staff members at
the county assessor's office. He also consulted maps, copied property record cards, copied tax
bills, and prepared affidavits to assure that his mailings of notice were "up to speed *** with the
current records of the county." When asked if he mailed notice to the Rock Falls address, Volini
explained:
"In this case, I don't believe I did, because I believe we had more up-to-date
information indicating that, A, Judith Skates was the representative of the taxpayers of
record, and, B, that she was, indeed, the taxpayer of record, and, C, that her residence
address, according to the current records of the county, was in Onarga and not in Rock
Falls, and, D, pursuant to an interview with the occupant of the property in Rock Falls,
which had previously been indicated to be a location at which Judith Skates or any of the
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other potential assessees of record might have been contacted was, in fact, an incompetent
address because none of them lived there, and, F, because the occupant of that home
directed us to Judith Skates as the representative of those family members and directed us
to the same address in Onarga, Illinois that the then current records of the county
indicated was the place to contact her."
According to the county employees interviewed by Volini, "only the tax bill itself" reflected
whom the county deemed "the appropriate party" to its "authentic tax records." The bill provided
the most up-to-date information regarding the person or persons to whom notices should be sent.
Based on this information, Volini sent one notice by certified mail, return receipt
requested, to Skates at her Onarga address and another notice by certified mail, return receipt
requested, to the remaining owners at Skates's Onarga address "C/O Judith Skates." The second
mailing listed the other owners individually. Skates signed both return receipts on February 12,
2003. She did not, however, forward the second notice to the other owners (her siblings), each of
whom submitted an affidavit stating that he or she did not become aware of the siting
proceedings until after the proceedings were concluded.
The County argues that Volini's efforts did not satisfy the notice requirement of
subsection 39.2(b) of the Act because "notices were not sent to the last known address for five
owners," and "separate notices were never sent to or received by those five property owners at
any address."
The plain language of subsection 39.2(b) does not include the phrase "last known
address"; it mentions service by registered mail without specifying any mode of determining the
mailing address. Moreover, if Volini had sent notice of Applicants' 2003 request to the Rock
15
Falls address, such notice would have been objectionable on due process grounds because he
knew from previous efforts that the address was invalid. See, e.g., Robinson v. Hanrahan, 409
U.S. 38, 34 L. Ed. 2d 47, 93 S. Ct. 30 (1972) (where State knew that automobile owner was not
residing at address to which forfeiture notice was mailed, and that he could not get there, State's
manner of service violated due process). Since we must construe subsection 39.2(b) in a manner
that upholds its constitutionality where reasonably possible (see Cook County Republican Party
v. Illinois State Board of Elections, 232 Ill. 2d 231, 239 (2009)), we will avoid a construction that
offends due process. Applicants were not required to mail notice to Gary Bradshaw, James
Bradshaw, Jay Bradshaw, Ted Bradshaw, and Denise Fogle at the Rock Falls address because
Applicants knew that (1) said owners did not reside there, and (2) the actual resident had declined
to accept service for them.
This observation does not likewise apply to Skates's Onarga address. Although
Applicants ostensibly knew that none of the other owners lived there, the element of declination
by the actual resident (Skates) is missing, and Applicants had reasonable cause to believe that
Skates was a proper recipient of notice for the other owners. Volini testified that during the
unsuccessful attempt to serve notice at the Rock Falls address in 2002, the resident said "none of
those parties resided [there] and that the only competent way of contacting them would be to
contact Judith Skates who was acting as their representative." The resident then provided
Skates's Onarga address for such contact. When Volini subsequently reviewed the County's
authentic tax records, he discovered that Skates had indeed changed her address of record to 203
South Locust Street in Onarga. Moreover, each of the other owners had designated Skates as the
recipient of their mailings from the County regarding taxes and tax-related notices on the farm.
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The significance of this designation is highlighted by the consequences of tax
delinquency. If Skates had failed to pay the tax bill on the farm without notifying the other
owners, the property could have been sold at a tax sale, resulting in a transfer of fee title. Since
the other owners voluntarily made Skates the sole recipient of mailings with such potential
consequences, Applicants could reasonably conclude that Skates was an appropriate recipient of
mailings with lesser potential consequences. At worst, the proposed landfill could only affect the
value of the Bradshaw farm without forcing a transfer of ownership.
It bears repeating that subsection 39.2(b) merely mentions service by registered mail
without specifying any mode of determining the mailing address. Moreover, even when notice is
not received, it comports with due process if reasonably calculated, under the circumstances, to
apprise interested parties of the pendency of the action and their opportunity to present
objections. People ex rel. Devine v. $30,700.00 United States Currency, 199 Ill. 2d 142, 156
(2002) (noting that "the practicalities and peculiarities of the case" are relevant factors in
determining the sufficiency of notice). We conclude that Applicants met this standard and, in the
process, complied with subsection 39.2(b).
The parties cite two instructive cases: Waste Management, 356 Ill. App. 3d 229 and
Wabash & Lawrence Counties Taxpayers & Water Drinkers Ass'n v. Pollution Control Board,
198 Ill. App. 3d 388 (1990). In Waste Management, the property owners in question were a
husband and wife (Robert and Brenda), living at the same address. The applicant served Robert
with notice by certified mail, return receipt requested, but only served Brenda by regular mail, in
conjunction with several unsuccessful attempts at personal service. The Board concluded that
Brenda had not been served with notice as required by subsection 39.2(b). This court affirmed
17
the Board's decision, observing that the statute requires either personal service or service by
registered mail (certified mail being a functional equivalent), return receipt requested--neither of
which occurred in respect to Brenda.
In Wabash & Lawrence, the applicant's request for siting approval was approved by the
local siting authority, but the approval was vacated by the Board for lack of proper notice. The
applicant then filed a second request for local siting approval which was again approved at the
local level. This time the Board affirmed the approval. On appeal, the Appellate Court, Fifth
District, affirmed the Board's decision. The appellant argued that notice had not been given to
certain property owners as required by subsection 39.2(b). The court disagreed, stating:
"The [appellant's] first claim of error involves property that was listed on the tax records
as owned by the heirs of a certain individual. It is true only one heir received notice, but
only that heir was listed by name and address in the tax records to receive the tax
statement on behalf of all the heirs. As [the applicant] notified the owner of the property
appearing from the authentic tax records, the [Board] properly found the notice complied
with section 39.2(b) of the Act even though all of the heirs did not receive personal
notice." Wabash & Lawrence, 198 Ill. App. 3d at 390-91.
This Court's decision in Waste Management rested on the fact that the applicant, despite
knowing both the name and valid address of a property owner, failed to serve that owner with
notice either in person or by registered or certified mail, return receipt requested. The instant
facts are different because, inter alia, (1) Applicants did not know the addresses of the property
owners in question, and (2) notice was served on those owners by certified mail, return receipt
requested, at Skates's address. The instant case is thus closer to Wabash & Lawrence, where the
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County's authentic tax records identified only one property owner by name and address. Just as
the applicant in Wabash & Lawrence was not required to track down other owners despite
knowing their existence from authentic tax records, nothing in the plain language of subsection
39.2(b) required Applicants to track down the owners in question. Knowing a person's existence
with no name and address is not meaningfully different, for present purposes, than knowing a
person's name with an invalid address (especially when that person has designated someone else,
with a known valid address, as the recipient of his or her mailings).
Having carefully considered the County's arguments, we conclude that they read
unwritten requirements into the Act. The plain language of subsection 39.2(b) does not require
separate mailings to co-owners of property, does not specify any mode of determining the
address to be used when serving notice by registered mail, and does not require actual receipt of
mailed notice. We are convinced that Applicants' efforts complied with subsection 39.2(b).
Accordingly, we affirm the Board's decision that proper notice was afforded the co-owners of the
Bradshaw farm.
3. Fundamental Fairness
Subsection 40.1(a) of the Act requires the Board to consider, inter alia, "the fundamental
fairness of the procedures used by the *** governing body of the municipality in reaching its
decision." 415 ILCS 5/40.1(a) (West 2004). A nonapplicant who participates in the siting
process thus has a statutory right to fundamental fairness in proceedings before the local siting
authority. Land & Lakes Co. v. Pollution Control Board, 319 Ill. App. 3d 41, 48 (2000), rev'd on
other grounds, Peoria Disposal Co. v. Illinois Pollution Control Board, 385 Ill. App. 3d 781,
796-97 (2008). However, fundamental fairness in this context incorporates only the minimal
19
standards of procedural due process, such as the right to be heard, the right to cross-examine
adverse witnesses, and the right to have impartial rulings on the evidence. Peoria Disposal Co.,
385 Ill. App. 3d at 797. The members of a local siting authority are considered to have acted
without bias (E & E Hauling, Inc. v. Pollution Control Board, 107 Ill. 2d 33, 42 (1985)), and the
fact that a member of the authority has taken a public position or expressed strong views on the
issue does not overcome this presumption (Concerned Adjoining Owners v. Pollution Control
Board, 288 Ill. App. 3d 565, 573 (1997)). To establish bias, the complaining party must show
that a disinterested observer might conclude that the local siting authority adjudged both the facts
and law before hearing the case. Concerned Adjoining Owners, 288 Ill. App. 3d at 573.
In the instant case, the Board found that the City Council's siting proceedings were
fundamentally fair. We will not reverse this finding unless it is clearly erroneous. Peoria
Disposal Co., 385 Ill. App. 3d at 797 (noting that reversal is not warranted unless, after
examining the entire record, the reviewing court is left with a definite and firm conviction that a
mistake has occurred).
The County argues that the Board committed reversible error for several reasons. First,
the County claims that the City Council's proceedings were fundamentally unfair because the
Council prejudged the merits of Applicants' request for siting approval. As evidence for this
claim, the County cites lawsuits filed by the City in November of 2002 and June of 2003.
The 2002 suit concerned the County's expenditure of funds generated through fees, taxes,
or surcharges on solid waste disposal. According to the complaint, the County had violated the
Act by using such funds to:
"(a) Reimburse the general fund of Kankakee County for expenditures involved in
20
the litigation against the City of Kankakee in the amount currently in excess of One
Hundred Twenty Thousand and No/100 Dollars ($120,000.00);
(b) Reimburse the general fund of Kankakee County for expenditures made to pay
for salaries of the Planning Department of the County of Kankakee and for which no
allocation of time has justified the reimbursement of said expenditures;
(c) Pay for solid waste planning for which no planning has occurred;
(d) Loan said funds to the defendant's general fund without repayment of said
funds from the general fund and without the generation of interest as a result of said loan;
and
(e) In other ways has misused and misappropriated the funds obtained as a result
of said fees."
The City sought an injunction prohibiting the County from making such expenditures of the
funds in question. As a consequence of the unauthorized expenditures, the City's request "to use
said funds for purposes of recycling and other projects related to solid waste disposal" had
allegedly "been limited in amount or denied totally."
The 2003 lawsuit focused on certain amendments to the County's solid waste
management plan. According to the complaint, the amended plan (1) interfered with the City's
home-rule power by "attempt[ing] to eliminate the siting of a solid waste facility within the
boundaries of the City of Kankakee," and (2) constituted unenforceable special legislation by
"confer[ring] a special benefit of privilege on Waste Management of Illinois, Inc., to the
exclusion of all others." The latest amendment to the plan, written to clarify the meaning of prior
amendments, declared:
21
"It is the intent of Kankakee County that no landfills or landfill operations be sited,
located, developed or operated within Kankakee County other than the existing landfill
located southeast of the intersection of U.S. Route 45/52 and 6000 South Road in Otto
Township, Kankakee County, Illinois. The only exception to this restriction on
landfilling is that an expansion of the existing landfill on the real property that is
contiguous to the existing landfill would be allowed under this Plan."
Waste Management operated the existing landfill at the location specified. The City sought an
order (1) enjoining the County "from attempting to interfere with the siting by the City," and (2)
declaring the amended plan void and unenforceable as special legislation.
We disagree with the County's claim that these actions demonstrate fundamental
unfairness in the siting proceedings, which occurred thereafter. As noted above, it is presumed
that members of the City Council acted without bias. This presumption is not overcome by
evidence merely showing that the City took a public position; the dispositive inquiry turns on
what a disinterested observer might conclude about members of the City Council. In our view,
such a person would not conclude that Council members had prejudged Applicants' siting
request. Rather, to a disinterested observer, the 2002 lawsuit would signal concern about the
availability of recycling and solid-waste disposal funds, and the 2003 suit would signal concern
about safeguarding the City's home-rule power. These concerns involve matters separate from
Applicants' siting request, even though they arose in connection with controversies about the
request. Accordingly, we find no reversible error.
The County makes additional arguments on the fundamental-fairness issue. At this point,
however, we interject the following issue because it also involves the County's amended solid
22
waste management plan.
4. Subsection 39.2(a)(viii) Criterion
If a proposed pollution control facility "is to be located in a county where the county
board has adopted a solid waste management plan consistent with the planning requirements of
the Local Solid Waste Disposal Act or the Solid Waste Planning and Recycling Act," local siting
approval shall not be granted unless "the facility is consistent with that plan." 415 ILCS
5/39.2(a)(viii) (West 2004).
The County adopted a solid waste management plan in 1993 and amended the plan in
1995, 2001, 2002, and 2003. The resolution containing the 2001 amendment stated that: Waste
Management's existing landfill had served the County and its residents well for 27 years;
expansion of that landfill would have "positive impacts," whereas "a second landfill would have
negative impacts" on nearby residents; and it was in the best interests of county residents "that
one landfill be maintained in its current location." The actual language of the amendment
declared:
"An expansion of the [Waste Management] landfill, if approved, will satisfy the County's
waste disposal needs for an additional 20 years. No new disposal facilities will be
necessary, or desired, in Kankakee County for purposes of implementing the Plan.
Kankakee County will not support and will contest the development of any other landfill
in the County, unless the expansion of the existing landfill is not approved."
This resolution was adopted in October of 2001.
In February of 2002, Applicants announced their intention to request local siting approval
23
for a new landfill to be located within the boundaries of the City. 1 Approximately one month
later, the County adopted the resolution containing the 2002 amendment to its solid waste
management plan. In the resolution, the County announced its desire "to clarify the intent and
purpose" of the 2001 amendment. The new amendment explicitly stated that if approval were
granted for expansion of Waste Management's existing landfill, "no new facilities would be
necessary." The actual language of the amendment did not elaborate using terms of geographical
proximity, although the preamble language declared that "a second, non-contiguous landfill
would have impacts upon County residents located near any such proposed new facility."
(Emphasis added.)
In August of 2002, the City Council granted siting approval in Town & Country I, and in
January of 2003, the Board reversed the Council's decision. Approximately one month later, the
County adopted the resolution containing the 2003 amendment to its solid waste management
plan. The resolution stated:
"WHEREAS, the County presently wishes to clarify the intent and purpose of [the
2001 and 2002] amendments to the Solid Waste Management Plan, as well as make
further amendments and updates to its Solid Waste Management Plan; and
***
WHEREAS, the present landfill and its owner [Waste Management] have
provided reliable and convenient disposal capacity for the past twenty-seven (27) years,
and that existing landfill's capacity will be exhausted at present disposal rates within three
(3) years; and,
1
This request gave rise to Town & Country I.
24
WHEREAS, the County hereby seeks to avoid a second non-contiguous landfill
being developed;
WHEREAS, the County wishes to limit the impacts of landfilling within the
County, while at the same time providing the benefit of additional landfill capacity within
the County, the County hereby amends its Solid Waste Management Plan such that no
other landfills should be developed in the County with the limited exception that the
existing landfill may be expanded.
WHEREAS, the expansion of the existing landfill would have positive impacts on
the County, including, but not limited to enhancement of the current tipping fee and
provision for a host fee, as well as the continued availability of reliable, convenient, cost-
effective disposal capacity, all to the benefit of the County and its residents; and
WHEREAS, the County Board has reviewed the decision of the Illinois Pollution
Control Board in [Town & Country I] dated January 9, 2003 and the County Board seeks
to dispel any question or ambiguity, and further affirm that it is its intention to limit the
landfilling within the County only to the existing landfill, and any expansion of that
landfill in an area contiguous to the existing landfill, as well as also affirm that no other
landfills are planned for or desired within the County, and the siting or development of
any other non-contiguous landfill within the County is inconsistent with this plan.
NOW, THEREFORE, BE IT RESOLVED that:
The first two paragraphs of Chapter Five, Section VI: Available Landfill Capacity In
Kankakee County of the Kankakee County Solid Waste Management Plan, on page 339,
are hereby deleted and replaced with the following:
25
It is the intent of Kankakee County that no landfills or landfill operations be sited,
located, developed or operated within Kankakee County other than the existing
landfill located southeast of the intersection of U.S. Route 45/52 and 6000 South
Road in Otto Township, Kankakee County, Illinois. The only exception to this
restriction on landfilling is that an expansion of the existing landfill on the real
property that is contiguous to the existing landfill would be allowed under this
Plan. The expansion or development of a landfill on the real property contiguous
to the existing landfill would limit the impacts of landfilling activity in the
County. Accordingly, the development of any other landfills in the County on
land that is not contiguous to the existing landfill is inconsistent with this
County's Solid Waste Management Plan. A noncontiguous landfill is inconsistent
with this Plan regardless of whether it is, or to be, situated upon, unincorporated
County land, incorporated municipal land, village land, township land, or any
other land, within the County borders that is not contiguous and adjacent to the
existing landfill."
This resolution was adopted 24 days before the filing of Applicants' 2003 request for local siting
approval.
During the siting proceedings, Michael Donahue, a land planning and zoning consultant,
testified that he was retained by Town & Country to perform a land use compatibility analysis.
He opined that Applicants' proposed landfill was compatible with the surrounding area. As to the
contiguity requirement in the County's solid waste management plan, he expressed his
understanding that the word "contiguous" had "more than one definition," and that the proposed
26
landfill was "in very near proximity" to Waste Management's existing landfill, which he
"underst[ood] to be one of the definitions of the word contiguous." Another definition he
understood was "adjacency," which meant "abutting." When asked if the proposed landfill
abutted Waste Management's existing landfill, he said, "They don't physically abut one another,
no."
Devin Moose, the head of Envirogen's office in St. Charles, Illinois, testified for Town &
Country on the question of whether the proposed landfill was consistent with the County's solid
waste management plan. He said the amendments to the plan created ambiguity, leaving room
for interpretation. In his view, after consulting several dictionaries, the word "contiguous" could
mean either "touching" or "in close proximity without touching." He thus opined that the
proposed landfill was contiguous to the existing Waste Management landfill because it was in
"close proximity" to that landfill. The two sites were located "probably about a mile and three
quarters" from each other.
In its written decision, the City Council found that because of certain procedural defects
(failure to provide notice and public hearings), the County had not adopted a solid waste
management plan consistent with the Local Solid Waste Disposal Act or the Solid Waste
Planning and Recycling Act. Nonetheless, as if the plan were valid, the Council proceeded to
address the consistency requirement of subsection 39.2(a)(viii) and declared: "[Applicants'
request] is consistent with the Kankakee County Plan as adopted due to the patent and latent
ambiguity of the plan and the failure to define and describe terms of the plan including
'contiguous' and 'existing.' Because the current site is located so as to be near, and in an area
which is contiguous, the site is consistent with the plan." Also, the Council expressed its opinion
27
that the plan violated the City's "statutory authority to site a solid waste disposal facility and ***
constitutional authority as a Home Rule Unit of government," though the Council acknowledged
that it lacked authority "to make such a finding within the confines of this hearing."
On appeal, the Board declared that the City Council lacked jurisdiction to determine the
validity of the County's solid waste management plan, and that "allegations concerning the
adoption of the County's [plan] are not proper for the Board's consideration in a Section 40.1
pollution control facility siting appeal." Accordingly, the Board refused to consider "whether the
City erroneously concluded the County's [plan] was invalid." The Board did, however, consider
and reject a procedural challenge to the 2001, 2002, and 2003 amendments to the plan. On the
question of consistency between Applicants' proposed facility and the plan, the Board explained
its decision as follows:
"The Board finds that the record contains evidence in support of the City's finding
that the proposed application is contiguous to the existing Waste Management facility.
The February 11, 2003 County Plan amendment states 'the development of any other
landfills in the County on land that is not contiguous to the existing landfill is
inconsistent with this County's Solid Waste Management Plan.' The Board finds that
under the possible definition presented by Mr. Moose at the City hearings, a landfill
development within two miles could be 'in close proximity without touching' the Waste
Management facility. The February 11, 2003 amendment does not require any expansion
or development of a landfill to touch or border the real property of the existing landfill.
Therefore, the Board finds the City's conclusion that [Applicants'] proposal is contiguous
to the existing landfill is not against the manifest weight of the evidence."
28
For these and other reasons, the Board affirmed the City Council's finding that Applicants'
proposed facility met the criterion in subsection 39.2(a)(viii) of the Act.
In its brief before this Court, and consistent with its written decision, the Board makes no
argument that the County's solid waste management plan is invalid. Accordingly, the County and
Board agree that Applicants' proposed landfill must be contiguous to Waste Management's
existing landfill but disagree on whether that requirement is met. The essential facts are not in
dispute; the only question involves their legal effect under the language of the solid waste
management plan. Accordingly, our review is de novo. Cojeunaze Nursing Center, 260 Ill. App.
3d at 1029. This standard does not prevent us from deferring to an administrative agency's
experience and expertise (see Rockwood Holding Co. v. Department of Revenue, 312 Ill. App.
3d 1120, 1123 (2000)), but the agency's interpretation is not binding and "will be rejected when it
is erroneous" (Shields, 204 Ill. 2d at 492)).
The cardinal rule of statutory construction is to ascertain and give effect to the intent of
the legislature (here, the County Board). Wade v. City of North Chicago Police Pension Board,
226 Ill. 2d 485, 509-10 (2007). The best indicator of legislative intent is the language of the
statute itself, which must be given its plain and ordinary meaning. Cinkus v. Village of Stickney
Municipal Officers Electoral Board, 228 Ill. 2d 200, 216 (2008). When the statutory language is
clear, other tools of construction are not necessary. Cinkus, 228 Ill. 2d at 216.
"Where the meaning of a statute is unclear from a reading of its language, courts may
look beyond the language of the statute and consider the purpose of the law, the evils it was
intended to remedy, and the legislative history behind it." Stroger v. Regional Transportation
Authority, 201 Ill. 2d 508, 524 (2002); see Midkiff v. Gingrich, 355 Ill. App. 3d 857, 862 (2005)
29
(noting that statutory language is ambiguous when it is subject to more than one reasonable
interpretation). Although a policy section, such as a preamble, cannot be used to create an
ambiguity in a statute or ordinance, it may be used to clarify ambiguous portions of an act.
Triple A Services, Inc. v. Rice, 131 Ill. 2d 217, 227 (1989). Indeed, when statutory language is
ambiguous, its preamble ranks among the quintessential sources of legislative intent. Atkins v.
Deere & Co., 177 Ill. 2d 222, 232 (1997).
In the instant case, the disputed statutory language appears in the paragraph added to the
County's solid waste management plan via the 2003 amendment. By the terms of that paragraph,
as an essential element of consistency with the plan, any landfill expansion or development must
be located "on the real property contiguous to the existing landfill" operated by Waste
Management at the specified address. Such use of the word "contiguous" occurs four times
throughout the paragraph. The fourth usage precludes any landfill "that is not contiguous and
adjacent to the existing landfill." Thus, the word "adjacent" must also be construed.
Town & Country's witnesses, Michael Donahue and Devin Moose, correctly testified that
the word "contiguous" can have different meanings. Standard definitions are: "1. Sharing an
edge or boundary; touching. 2. Nearby; neighboring; adjacent." The American Heritage
Dictionary of the English Language 288 (1969). The word can signify either actual contact or
mere close proximity, and no clarity is gained by referring to "adjacent," which can mean either
"adjoining" (defined as, inter alia, "contiguous") or merely "[c]lose to; *** lying near." The
American Heritage Dictionary of the English Language 16 (1969).
These possibilities render the language of the County's solid waste management plan
ambiguous, as stated by Devin Moose and found by the City Council. See, e.g., People v.
30
Robinson, 217 Ill. 2d 43, 56 (2005) (where dictionary entry supported two meanings of the
statutory phrase "pursuant to," one favoring each party's interpretation, ambiguity existed
warranting consideration of other evidence to ascertain legislative intent); Midkiff, 355 Ill. App.
3d at 861-62 (2005) (same for the word "amount"). In addition to the City Council, the Board
recognized ambiguity when it cited "the possible definition presented by Mr. Moose" to support
its finding of contiguity. Immediately after doing so, the Board concluded that "[t]he February
11, 2003 amendment does not require any expansion or development of a landfill to touch or
border the real property of the existing landfill." This interpretation is erroneous.
As noted above, the cardinal rule of statutory construction is to ascertain and effectuate
the intent of the legislative body. This rule applies throughout the process of statutory
construction. An ambiguity in statutory language does not create interpretive license to simply
choose one or the other of possible meanings; rather, it simply widens the range of evidence that
may be used to discover what the drafters intended. As our supreme court has explained: "If the
language of a statute is susceptible to two constructions, one of which will carry out its purpose
and another which will defeat it, the statute will receive the former construction." Harvel v. City
of Johnston City, 146 Ill. 2d 277, 284 (1992). If the Board had properly applied these principles,
it would have reached a different conclusion about the meaning of the 2003 amendment to the
County's solid waste management plan.
In its resolution containing the 2001 amendment, the County explained that Waste
Management's existing landfill had served county residents well and that a second landfill would
negatively impact nearby residents. Accordingly, the County declared that the interests of all
residents would be best served by "one landfill *** maintained in its current location." When
31
Applicants proposed a new landfill to be located 1¾ miles away from Waste Management's
existing facility, the County responded with its 2002 amendment "to clarify the intent and
purpose" of the 2001 amendment. The resolution containing the 2002 amendment indicated that
the County was acting in response to the prospect of "a second, non-contiguous landfill."
Likewise, the resolution containing the 2003 amendment, passed for additional
clarification of legislative intent, expressed the County's desire "to avoid a second non-
contiguous landfill being developed." The amendment meant "that no other landfills should be
developed in the County with the limited exception that the existing landfill may be expanded."
Accordingly, the County declared its
"intention to limit the landfilling within the County only to the existing landfill, and any
expansion of that landfill in an area contiguous to the existing landfill, as well as also
affirm that no other landfills are planned for or desired within the County, and the siting
or development of any other non-contiguous landfill within the County is inconsistent
with this plan."
These facts show that Applicants' proposed landfill was the immediate object of the
County's decision to preclude "non-contiguous" landfilling. As such, the County intended its use
of the word "contiguous" to prevent what Applicants were proposing--a new landfill located 1¾
miles away from Waste Management's existing landfill. This intent corresponds only to the first
definition listed above ("Sharing an edge or boundary; touching"), not the second ("Nearby;
neighboring; adjacent"). Accordingly, the Board erred in finding that the proposed landfill was
contiguous to the existing landfill for purposes of the County's solid waste management plan.
As we have observed, the cardinal rule of statutory construction applies throughout the
32
interpretive process. When a statute is rendered ambiguous by two possible definitions of a
single term, a construing tribunal is not at liberty to simply choose one of those definitions. The
decision must be controlled by ascertainment of legislative intent. The County clearly did not
intend its 2003 amendment to allow for Applicants' proposed landfill, and the word "contiguous"
must be construed in light of this fact.
Applicants, in addition to adopting the Board's statutory-construction argument in toto,
argue that "the Kankakee County Solid Waste Management Plan as adopted and amended
violates the Environmental Protection Act and the Illinois Constitution as an improper
infringement and limitation upon the home rule powers of an independent local government
jurisdiction." Although the Board refused to consider these arguments below (on jurisdictional
grounds), Applicants urge us to adopt them as bases for reversal. In support of their position,
Applicants cite the general proposition that we may affirm a decision for any reason warranted by
the record, regardless of the particular reasons given by the lower tribunal. While this
proposition is generally true, it has no application to claims that could not have been properly
adjudicated by the lower tribunal in the first place, or to claims that cannot be properly raised on
appeal. Such is the case here.
In Residents Against a Polluted Environment v. Pollution Control Board, 293 Ill. App. 3d
219 (1997), the Board refused to hear evidence that a landfill siting applicant had influenced the
process of amending a county solid waste management plan. On appeal, this court stated:
"We agree that section 40.1 does not authorize the Board to review the process
involved in the county's amendment of its Plan. The appellants do not cite, nor do we
find, any statutory or judicial authority which would allow evidence to be presented
33
concerning the county's amendment of its Plan. Indeed the express language of the Act
indicates that the purpose of the siting process is to determine whether the proposed
facility complies with the county's Plan. 415 ILCS 5/39.2(a)(viii) (West 1994). The Act
does not authorize an inquiry into the county's prior amendment of the Plan. Rather, the
adoption and amendment of a solid waste management plan are governed by the Local
Solid Waste Disposal Act (415 ILCS 10/1 et seq. (West 1994)) and the Solid Waste
Planning and Recycling Act (415 ILCS 15/1 et seq. (West 1994)). Neither of these acts
authorizes the Board in a siting approval appeal to review the procedures used by a
county in adopting its solid waste management plan." Residents Against a Polluted
Environment, 293 Ill. App. 3d at 223.
Appellants acknowledge this passage but dismiss it on the grounds that Residents Against a
Polluted Environment is factually distinguishable from the instant case. However, any factual
distinction is immaterial for present purposes because the passage contains an applicable
statement of law. In these administrative proceedings, there is no statutory authority to
adjudicate claims about the legitimacy of plan adoption or amendment. We cannot expand our
review beyond the scope of our statutory authorization. C.f. Town & Country Utilities, Inc. v.
Pollution Control Board, 225 Ill. 2d 103, 122 (2007) (noting that "[t]he jurisdiction of the court
in this administrative review action *** is limited by the statutes conferring special statutory
jurisdiction").
As for Applicants' home-rule argument, it cannot be properly raised for the additional
reason that they lack standing. See, e.g., People v. Campa, 217 Ill. 2d 243, 268 (2005) (noting
that a person who wishes to attack legislation as unconstitutional must be a member of the class
34
to whom the legislation is allegedly unconstitutional); In re Marriage of Nienhouse, 355 Ill. App.
3d 146, 153 (2004) ("a party has standing to bring a constitutional challenge only if the party is
able to show himself to be within the class aggrieved by the alleged unconstitutionality").
Applicants have no constitutional home-rule rights, and the City, the party whose rights are at
issue, has not filed a brief raising this claim.2
In light of the foregoing observations, we conclude that the Board committed reversible
error when it found that Applicants' proposed facility met the criterion in subsection 39.2(a)(viii)
of the Act (consistency with the County's solid waste management plan). This finding is
dispositive because all of the statutory criteria must be met as a precondition for local siting
approval. Accordingly, there is no reason to address the remaining issues raised in the briefs.
CONCLUSION
For the foregoing reasons, we reverse the decision of the Board, which confirmed the City
Council's decision granting Applicants' request for local siting approval.
Reversed.
SCHMIDT, J., concurs.
JUSTICE HOLDRIDGE, dissenting in part and concurring in part:
I dissent from the majority's conclusion that Applicants' 2002 request was disapproved for
purposes of subsection 39.2(m) of the Act, which reads: "An applicant may not file a request for
local siting approval which is substantially the same as a request which was disapproved
pursuant to a finding against the applicant under any of criteria (i) through (ix) of subsection (a)
2
Applicants also make a passing reference to special legislation. Thus cursory claim
yields the same conclusion because it is used in defense of the City's alleged rights.
35
of this Section within the preceding 2 years." (Emphasis added.) 415 ILCS 5/39.2(m) (West
2004). Objectors argue that the 2002 request was "disapproved" when the Board reversed the
City Council's grant of approval. Applicants and the Board, on the other hand, argue that the
2002 request was not disapproved within the meaning of the statute because the local siting
authority, the City Council, approved it.
The mandate for local siting review appears in subsection 39(c), which prohibits the
Environmental Protection Agency from granting a permit for a new pollution control facility
"unless the applicant submits proof *** that the location of the facility has been approved by the
*** governing body of the municipality *** in which the facility is to be located in accordance
with Section 39.2 of this Act." (Emphasis added.) 415 ILCS 5/39(c) (West 2004). This
language indicates that local siting approval is the province of the local siting authority; there is
no mention of the Board. Section 39.2 indicates likewise, stating that "the governing body of the
municipality, as determined by paragraph (c) of Section 39 of this Act, shall approve or
disapprove the request for local siting approval for each pollution control facility which is subject
to such review." (Emphasis added.) 415 ILCS 5/39.2(a) (West 2004) (listing nine criteria that
govern the decision). This provision reflects the context in which subsection 39.2(m) speaks of a
prior request "disapproved pursuant to a finding against the applicant under any of criteria (i)
through (ix) of subsection (a)." 415 ILCS 5/39.2(m) (West 2004). As before, there is no
mention of the Board; findings on the nine criteria are made by the local siting authority.
The absence of any reference to the Board in this process is revealing, since other parts
of section 39.2 show that the legislature was aware of the Board and mentioned its role when
relevant. For instance, subsection 39.2(d) states that "[t]he public hearing [conducted by the
36
local siting authority] shall develop a record sufficient to form the basis of appeal of the
decision" (415 ILCS 5/39.2(d) (West 2004)), and subsection 39.2(n) states that "[i]n any review
proceeding of a decision of the *** governing body of a municipality made pursuant to the local
siting review process, the petitioner in the review proceeding shall pay to the *** municipality
the cost of preparing and certifying the record of proceedings" (415 ILCS 5/39.2(n) (West 2004)).
These provisions clearly reflect a distinction between proceedings in which the decision
(approval or disapproval) is made and proceedings in which the decision is reviewed on appeal.
See also 415 ILCS 5/39.2(g) (West 2004) (mentioning "siting approval procedures" and "appeal
procedures" separately). The Board plays no part in the former--only the latter.
This fact is apparent from section 40.1 of the Act (titled, "Appeal of siting approval"),
which reads:
"(a) If the *** governing body of the municipality, as determined by paragraph (c)
of Section 39 of this Act, refuses to grant or grants with conditions approval under
Section 39.2 of this Act, the applicant may, within 35 days after the date on which the
local siting authority disapproved or conditionally approved siting, petition for a hearing
before the Board to contest the decision of the *** governing body of the municipality.
***
(b) If the *** governing body of the municipality as determined by paragraph (c)
of Section 39 of this Act, grants approval under Section 39.2 of this Act, a third party
other than the applicant who participated in the public hearing conducted by the ***
governing body of the municipality may, within 35 days after the date on which the local
siting authority granted siting approval, petition the Board for a hearing to contest the
37
approval of the *** governing body of the municipality." (Emphasis added.) 415 ILCS
5/40.1(a), (b) (West 2004).
By this plain language, and the other provisions cited above, the decision of whether to approve
or disapprove a local siting request is made by the local siting authority. The Board does not
become involved until afterward. Parties can only petition the Board to contest an existing
decision of the local siting authority, not to have the Board make its own decision as to approval
or disapproval. This explains why "no new or additional evidence *** shall be heard by the
Board," and why the Board must base its hearing "exclusively on the record before the ***
governing body of the municipality." 415 ILCS 5/40.1(a), (b) (West 2004).
The legislature repeatedly used the words "approve" and "disapprove" (and their
derivatives) when discussing the role of the local siting authority. On the other hand, the
legislature never used such words when discussing the role of the Board.
The County argues otherwise, citing a partial sentence from subsection 40.1(a) of the Act,
which reads: "If there is no final action by the Board [on a petition to contest a disapproval or
conditional approval] within 120 days after the date on which it received the petition, the
petitioner may deem the site location approved ***." 415 ILCS 5/40.1(a) (West 2004). The
County interprets this provision as if the words "by the Board" appeared after the word
"approved." This interpretation is problematic because it adds language ("by the Board") that the
legislature did not place in the statute.
We "must construe the statute as written and may not, under the guise of construction,
supply omissions, remedy defects, annex new provisions, add exceptions, limitations, or
conditions, or otherwise change the law so as to depart from the plain meaning of the language
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employed in the statute." In re County Treasurer and Ex-Officio Collector of Cook County, 323
Ill. App. 3d 1044, 1049 (2001). Since the legislature used the word "approved" in subsection
40.1(a) without explanation, I construe the word in context with its usage elsewhere in the Act.
By such construction, the disputed passage means that when an applicant's statutory right to a
timely decision on appeal is denied, the applicant may proceed as if local siting approval had
been granted and no appeal were necessary in the first place. Rather than signaling approval
authority at the appeal level, the passage simply provides a remedy for untimeliness by the Board.
For these reasons, I disagree with the majority's conclusion that Applicants' 2002 request
was disapproved for purposes of subsection 39.2(m) of the Act (415 ILCS 5/39.2(m) (West
2004)). Under my analysis, therefore, there would be no reason to address whether the 2002 and
2003 requests were substantially similar. Under the majority's analysis, however, the substantial-
similarity question should be addressed per the Supreme Court's supervisory order. The Supreme
Court specifically stated that if this court found a prior disapproval of the 2002 request, we
"should next consider the effect of the Board's failure to consider the substantial similarity issue."
The majority has not done so. Instead, the majority has proceeded to subsequent issues in the
case: notice, fundamental fairness, and consistency with the county solid waste management
plan. While I agree with, and thus concur in, the majority's conclusions on those issues, I believe
it was required to address the substantial-similarity issue before reaching them.
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