Maggio v. The Pollution Control Board

Illinois Official Reports
Appellate Court
Maggio v. Pollution Control Board, 2014 IL App (2d) 130260Appellate Court MARTIN MAGGIO, Petitioner, v. THE POLLUTION CONTROL
Caption BOARD, THE COUNTY OF WINNEBAGO, THE WINNEBAGO
COUNTY BOARD, and WINNEBAGO LANDFILL COMPANY,
LLC, Respondents.
District & No. Second District
Docket No. 2-13-0260
Filed March 31, 2014
Held Respondent county board had jurisdiction to approve respondent
(Note: This syllabus landfill company’s application to expand its pollution control facility,
constitutes no part of the since the company complied with section 39.2 of the Environmental
opinion of the court but Protection Act by properly serving all adjacent landowners by
has been prepared by the registered mail, return receipt requested, within the deadline imposed
Reporter of Decisions by section 39.2, and it reasonably calculated the delivery of the
for the convenience of preapplication notices by sending them before submitting its
the reader.) application for approval.
Decision Under Appeal from the Order of the Illinois Pollution Control Board, No.
Review PCB-13-10.
Judgment Affirmed.
Counsel on Michael S. Blazer, of Jeep & Blazer, LLC, of Hillside, for appellant.
Appeal
Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro,
Solicitor General, Janon E. Fabiano and Brett E. Legner, Assistant
Attorneys General, of counsel), for appellee Pollution Control Board.
Joseph P. Bruscato, State’s Attorney, of Rockford (David J.
Kurlinkus, Assistant State’s Attorney, of counsel), for appellees
County of Winnebago and Winnebago County Board.
Charles F. Helsten, of Hinshaw & Culbertson, of Rockford, and
George Mueller, of Mueller Anderson & Associates, of Ottawa, for
appellee Winnebago Landfill Company, LLC.
Panel JUSTICE SPENCE delivered the judgment of the court, with opinion.
Presiding Justice Burke and Justice Schostok concurred in the
judgment and opinion.
OPINION
¶1 Petitioner, Martin Maggio, appeals the order of the Illinois Pollution Control Board (IPCB)
affirming the decision of the Winnebago County board (County Board). The County Board
conditionally approved the site location application submitted by Winnebago Landfill
Company, LLC (WLC), for the expansion of WLC’s existing solid waste landfill. On appeal,
Maggio argues that the County Board lacked jurisdiction to approve the application, because,
under section 39.2(b) of the Environmental Protection Act (Act) (415 ILCS 5/39.2(b) (West
2012)), a preapplication notice is not effective until it is received by the person to whom it is
directed, and here not every person received the notice within the statutory time period.
Maggio also argues that the IPCB erred in finding that WLC’s service effort was reasonably
calculated to achieve service 14 days before the siting application was filed. We affirm.
¶2 I. BACKGROUND
¶3 Section 39.2 of the Act allows county boards or municipal governing bodies to grant or
deny requests for local siting approval for pollution control facilities. 415 ILCS 5/39.2 (West
2012). At issue in this appeal is the interpretation of section 39.2(b) of the Act (415 ILCS
5/39.2(b) (West 2012)), which involves preapplication notice by the applicant. That section
states:
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“No later than 14 days before the date on which the county board or 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 ***.” (Emphasis added.) Id.¶4 The facts in this paragraph come from a joint stipulation by Maggio and WLC to the IPCB.
On December 27, 2011, WLC mailed preapplication notices to all property owners subject to
notice under section 39.2(b) by placing the notices in a post office box in Ottawa. WLC sent
the notices via certified mail, return receipt requested. The following day, WLC published a
copy of the notice in the Rockford Register Star. Certain mailings were not claimed and were
returned to WLC by the postal service; WLC made no further effort to serve these individuals.
Moreover, notices were not delivered to certain other individuals until after January 3, 2012.
WLC filed its siting application with the County Board on January 17, 2012.
¶5 The County Board held a public hearing on the application from April 23, 2012, to April
30, 2012. The County Board approved the application on July 12, 2012.
¶6 Maggio appealed the County Board’s decision to the IPCB on August 15, 2012. See 415
ILCS 5/40.1(b) (West 2012) (allowing 35 days from date of decision to petition IPCB for a
hearing). Maggio alleged that he had participated in the hearing before the County Board as an
objector. He further alleged that he “directly and indirectly” owned property adjacent to the
subject landfill expansion. Maggio argued that: (1) the County Board did not have jurisdiction
over WLC’s siting request, because WLC failed to properly serve notice of the proceedings
under section 39.2(b) of the Act, and (2) the County Board’s proceedings had been
fundamentally unfair. On January 2, 2013, Maggio withdrew his second claim, leaving only
the jurisdictional issue.
¶7 The IPCB conducted a hearing on December 4, 2012. On March 7, 2013, it affirmed the
County Board’s decision. According to the IPCB, 102 preapplication notices were mailed out.
All of the notices had arrived at the “postal units” on December 29, 2011, ready to be
delivered. By January 3, 2012, eight of the notices were unclaimed and returned to WLC.
Three other notices, all related to the same parcel, were not received until after WLC submitted
its application for siting approval.
¶8 The IPCB found that WLC properly served all adjacent landowners within the deadline
imposed by section 39.2(b). It further found that WLC reasonably calculated the delivery of
the preapplication notices by sending them 21 days before submitting its application for siting
approval. It therefore concluded that the County Board had jurisdiction to approve WLC’s
pollution control facility expansion.
¶9 Specifically, the IPCB ruled that the phrase “return receipt requested” in section 39.2(b) is
satisfied if the applicant simply sends the preapplication notices through “ ‘registered mail,
return receipt requested,’ ” or its functional equivalent. The IPCB cited as authority for this
proposition its decision in City of Kankakee, Ill. Pollution Control Bd. Op. 03-125 (Aug. 7,
2003), which was affirmed by the appellate court in Waste Management of Illinois, Inc. v.
Pollution Control Board, 356 Ill. App. 3d 229 (2005). The IPCB recognized that in Ogle
County Board ex rel. County of Ogle v. Pollution Control Board, 272 Ill. App. 3d 184 (1995),
this court held that section 39.2(b) requires actual receipt of a preapplication notice. The IPCB
stated that Ogle County Board was effectively overruled by People ex rel. Devine v. $30,700
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United States Currency, 199 Ill. 2d 142 (2002), where the supreme court found that the
of certified mail return receipt requested was sufficient to satisfy notice requirements. The
IPCB further stated that Ogle County Board relied on the supreme court’s ruling in Avdich v.
Kleinert, 69 Ill. 2d 1 (1977). The IPCB noted that Avdich involved the forcible entry and
detainer statute, where notice was required to be sent to the tenant “ ‘by certified or
mail, with a returned receipt from the addressee.’ ” Id. at 5 (quoting Ill. Rev. Stat. 1975, ch.
¶ 10). The IPCB stated that in $30,700 United States Currency, the supreme court stated that
the notice requirement in Avdich was not applicable to a notice requirement with the
“return receipt requested.” The IPCB found the supreme court’s decision in $30,700 United
States Currency “controlling.” The IPCB stated, “The legislature plainly intended two
different meanings by the phrase ‘with a returned receipt from the addressee,’ which requires
actual signed receipt of notification, and the phrase ‘return receipt requested,’ which allows
service to be properly served upon mailing.”
¶ 10 Maggio timely appealed. See 415 ILCS 5/41 (West 2012) (allowing direct appeals from
rulings of the IPCB); Ill. S. Ct. R. 335 (eff. Feb. 1, 1994) (addressing direct appeals from
agency rulings).
¶ 11 II. ANALYSIS
¶ 12 A. Meaning of “Return Receipt Requested”
¶ 13 On appeal, Maggio argues that the IPCB erred in ruling that the County Board had
jurisdiction. According to Maggio, section 39.2(b) requires proof that adjacent landowners
received their preapplication notices 14 days before the siting application was filed, and
merely sending the notices return receipt requested is insufficient.
¶ 14 The interpretation of section 39.2(b) presents a question of statutory construction, which
is a question of law. See Schultz v. Performance Lighting, Inc., 2013 IL 115738, ¶ 12. Where
the issue on appeal is an administrative agency’s conclusion on a point of law, as here, we
review de novo the agency’s decision. Provena Covenant Medical Center v. Department of
Revenue, 236 Ill. 2d 368, 386 (2010). Still, “the interpretation of a statute by the agency
charged with its administration is given some deference; but this rule is not binding and if the
interpretation is erroneous, it will be rejected.” Prazen v. Shoop, 2013 IL 115035, ¶ 40; see
also County of Kankakee v. Pollution Control Board, 396 Ill. App. 3d 1000, 1006 (2009)
(“Though we are not bound by the Board’s interpretation of [a statute], we will give it weight
in our own construction.”). In construing a statute, our primary goal is to ascertain and give
effect to the legislature’s intent, which is best indicated by the plain and ordinary meaning of
the statute’s language. Schultz, 2013 IL 115738, ¶ 12.
¶ 15 Section 39.2(b)’s notice requirements are jurisdictional prerequisites that the applicant
must follow in order to vest the county board with the power to hear a landfill proposal. Kane
County Defenders, Inc. v. Pollution Control Board, 139 Ill. App. 3d 588, 593 (1985). At
is section 39.2(b)’s requirement that, at least 14 days before the date on which the county
board or equivalent municipal governing body receives a request for siting approval, “the
applicant shall cause written notice of such request to be served either in person or by
registered mail, return receipt requested.” (Emphasis added.) 415 ILCS 5/39.2(b) (West
2012). For purposes of the statute, certified mail, return receipt requested, is the equivalent of
registered mail, return receipt requested. Waste Management of Illinois, 356 Ill. App. 3d at
234.
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¶ 16 Maggio argues that Ogle County Board is controlling precedent on the issue of what
“return receipt requested” means. There this court stated:
“Our supreme court has interpreted the inclusion of the ‘return receipt requested’
language in the context of a forcible entry and detainer action to ‘clearly indicate[ ] a
legislative intent that service of a notice by certified mail is not to be considered
complete until it is received by the addressee.’ [Citation.] The Avdich court
specifically noted that ‘[i]f mere mailing of a *** notice [were] sufficient service,
then proof of mailing would be all that was required to show service, and there would
be little reason to require a returned receipt.’ [Citation.]” Ogle County Board, 272 Ill.
App. 3d at 195-96.
This court relied on Avdich in concluding that section 39.2(b)’s use of the phrase “return
receipt requested” reflected the legislature’s intent to “require actual receipt of the notice, as
evidenced by the signing of the return receipt.” Id. We stated that there was no evidence in
that case indicating that two intended recipients, who did not receive the notice before the
14-day deadline, knew of the notice’s content and purposefully refused delivery. Id.
Affirming the IPCB’s decision, we held that, because the return receipts at issue were signed
after the notice deadline had passed, the notice did not comply with section 39.2(b)’s
requirements, and the county board thus lacked jurisdiction to hear the application. Id.
¶ 17 Justice McLaren dissented from the majority opinion, reasoning that the “14-day
requirement [of section 39.2(b)] relates to the mailing of the registered mail and not to actual
receipt (service) of the mail.” Id. at 197 (McLaren, P.J., dissenting).
¶ 18 Maggio argues that Ogle County Board is controlling on the issue at hand and has not
been overruled. Maggio maintains that the IPCB had no authority to find that Ogle County
Board had been effectively overruled. Maggio cites Hohn v. United States, 524 U.S. 236,
252-53 (1998), where the Supreme Court stated that opinions passing on jurisdictional issues
sub silentio may not be interpreted to have overruled an opinion addressing the issue directly.
¶ 19 Maggio further cites the proposition that, when statutes are enacted after judicial opinions
are published, it is presumed that the legislature acted with knowledge of the prevailing case
law. Millennium Park Joint Venture, LLC v. Houlihan, 241 Ill. 2d 281, 305-06 (2010).
Maggio maintains that the accepted construction of “registered mail, return receipt
requested” in 1981, when the original statute was enacted, required receipt of notice by the
recipient. See People ex rel. Head v. Board of Education of Thornton Fractional Township
South High School District No. 215, 95 Ill. App. 3d 78, 81-82 (1981) (requirement that
school district provide written notice of dismissal to teachers by registered mail required
receipt of the notice within the statutory time period); A-1 Security Services, Inc. v. Stackler,
61 Ill. App. 3d 285, 288 (1978) (“Because registered mail requires the addressee to sign for
the item in acknowledgement of delivery, the date of the signed acknowledgement is the date
the item was received and thus the date of service.”). Maggio also cites numerous prior
decisions of the IPCB requiring physical receipt of preapplication notice, as well as the
IPCB’s administrative regulation requiring the same. See 35 Ill. Adm. Code 101.300(c)
(2005) (“In the case of service by registered or certified mail, or by messenger service,
service is deemed complete on the date specified on the registered or certified mail receipt or
the messenger service receipt.”).
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¶ 20 The IPCB and WLC (collectively, respondents) 1 argue that the IPCB employed the
proper analysis. Respondents maintain that section 39.2(b) does not contain any language
conditioning the effectiveness of notice on either the addressee’s receiving the notice or the
applicant’s receiving a signed registered mail receipt. Citing $30,700 United States Currency,
199 Ill. 2d at 153, respondents argue that the supreme court has held that the phrase “return
receipt requested” does not indicate a legislative intent that service of notice is effective only
if received. Respondents note that the appellate court has applied the reasoning of $30,700
United States Currency to section 39.2(b) in holding that the statute requires only that the
notice is sent by registered mail, return receipt requested, and not that the recipient actually
receive the notice. See Waste Management of Illinois, 356 Ill. App. 3d at 234; see also
County of Kankakee, 396 Ill. App. 3d at 1013.
¶ 21 Respondents additionally argue that construing section 39.2(b) to require actual receipt
would lead to unreasonable consequences, as there might be over a hundred notices, as in this
case. Respondents maintain that, under Maggio’s construction, if the notice were not picked
up by all addressees at least 14 days before the date for the hearing stated in the notice, the
notice process would have to start over. Respondents also argue that any one party could
prevent the County Board from acquiring jurisdiction, by evading receipt of the notice.
¶ 22 We examine the cases cited by respondents. In $30,700 United States Currency, the State
initiated forfeiture proceedings under the Drug Asset Forfeiture Procedure Act (Drug
Forfeiture Act) (725 ILCS 150/1 et seq. (West 2000)). Under the Drug Forfeiture Act, where
the claimant’s name and address were known to the State, the State was required to give
notice of pending forfeiture proceedings “ ‘by either personal service or mailing a copy of the
notice, *** return receipt requested, to that address.’ ” $30,700 United States Currency, 199
Ill. 2d at 150 (quoting 725 ILCS 150/4(A)(1) (West 2000)). The Drug Forfeiture Act further
stated, “ ‘Notice served under this Act is effective upon personal service, the last date of
publication, or the mailing of written notice, whichever is earlier.’ ” Id. (quoting 725 ILCS
150/4(B) (West 2000)). The State sent notice to the claimants via certified mail, return
receipt requested, but it did not actually receive a return receipt. Id. at 147. The claimants did
not appear at the forfeiture proceedings, and the trial court entered a default order. Id. at 148.
The appellate court reversed on the basis that the trial court lacked personal jurisdiction over
the claimants because they were not properly served, in that under the Drug Forfeiture Act
service was accomplished when the State received a signed return receipt. Id.¶ 23 The supreme court reversed. It held that the express language in the Drug Forfeiture Act
clearly and unambiguously provided that notice was effective upon the mailing of written
notice. Id. at 151. The court stated, “The Act does not condition the effectiveness of notice
upon receipt of the return receipt signed by the addressee, and this court will not rewrite the
Act to create this requirement.” Id. It rejected the claimants’ argument that the “return
receipt” language in the statute indicated the legislature’s intent that notice would be
perfected only when the State received the return receipt; the court stated that the legislature
could have expressly conditioned notice upon the receipt of the return receipt, as it had in
other acts. Id. at 151-52.
1
Although we refer to the IPCB and WLC collectively as respondents, they have filed separate
appellee briefs.
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¶ 24 The supreme court noted that the appellate court had relied on Avdich for the proposition
that the mere inclusion of a return receipt requirement implied that return of the receipt was
required for notice to be effective. Id. at 152. The supreme court stated that “Avdich is not
authority for the proposition that all enactments which contain the ‘return receipt’
requirement demand return of the receipt to perfect service.” Id. at 152-53. The supreme
court stated that, to the contrary, it demonstrated that the legislature could expressly
condition service upon return of the receipt, as the statute in Avdich stated that notice could
be served “ ‘by sending a copy of said notice to the tenant by certified or registered mail,
with a returned receipt from the addressee.’ ” (Emphasis added.) Id. at 153 (quoting 735
ILCS 5/9-211 (West 2000)). The supreme court pointed out that, in contrast, the Drug
Forfeiture Act required only a “ ‘return receipt requested.’ ” (Emphasis in original.) Id.(quoting 725 ILCS 150/4(A)(2) (West 2000)). The supreme court stated, “If we afford the
language in each provision its plain and ordinary meaning, one demands the return of the
receipt while the other merely demands a request.” Id.¶ 25 The supreme court further disagreed with the claimants’ argument that the only
advantage of certified mail with a return receipt requested is to obtain proof of delivery; the
court stated that it also gave the sender proof of mailing and served the claimant’s interest by
alerting him or her to the importance of the letter’s contents. Id. at 153-54. Finally, the
supreme court stated that the Drug Forfeiture Act required a liberal construction to achieve
its overall purpose and that conditioning the completion of notice upon receipt would be an
obstacle to enforcement, because claimants in such cases often have no true interest in the
property and refuse to sign for the mail when it arrives. Id. at 154.
¶ 26 Subsequently, the appellate court relied on $30,700 United States Currency in holding
that, under section 39.2(b):
“All that is required by the statute is that notice is sent by registered mail, return
receipt requested. Jurisdiction is not premised on the recipient’s actions, once the
letter is received, but on the form of the sending of the letter; jurisdiction will exist as
long as the letter is sent by the prescribed method.” Waste Management of Illinois,
356 Ill. App. 3d at 234.
See also County of Kankakee, 396 Ill. App. 3d at 1013 (“The plain language of subsection
39.2(b) *** does not require actual receipt of mailed notice.”).
¶ 27 We agree with the above-cited cases and respondents that the plain language of section
39.2(b) does not require that the sender obtain returned receipts in order for service to be
effective. Moreover, this result is unavoidable under the supreme court’s analysis in $30,700
United States Currency. While that case did not directly overrule Ogle County Board, it
rejected the same type of interpretation of Avdich that Ogle County Board had relied on in
the first place. Again, the supreme court stated that “Avdich is not authority for the
proposition that all enactments which contain the ‘return receipt’ requirement demand return
of the receipt to perfect service,” but rather that the case demonstrated that the legislature
could expressly condition service upon return of the receipt, in that the statute stated that
notice could be served by sending a copy of the notice certified or registered mail, “ ‘with a
returned receipt from the addressee.’ ” (Emphasis added.) $30,700 United States Currency,
199 Ill. 2d at 152-53 (quoting 725 ILCS 5/9-211 (West 2000)). The supreme court clearly
differentiated between statutes requiring the return of the receipt and statutes requiring
simply a request for the return of the receipt. Id. at 153. Here, section 39.2(b) mandates only
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that a return receipt be “requested” (415 ILCS 5/39.2(b) (West 2012)); section 39.2(b) does
not require proof that the recipient actually received the notice.
¶ 28 Contrary to Maggio’s contentions, the IPCB did not rely on a case addressing a
jurisdictional issue sub silentio, as $30,700 United States Currency directly addressed the
jurisdictional question before it and also discussed the phrase “return receipt requested,”
which is present in the statute at issue here. Further, the fact that, when section 39.2(b)’s
precursor was enacted, one case involving a different statute had interpreted the phrase
“return receipt requested” as requiring receipt of the notice does not establish that it was
prevailing case law on the issue. Indeed, the additional case that Maggio cites involving
registered mail more generally, A-1 Security Services, Inc., 61 Ill. App. 3d at 287-88, was
disagreed with numerous times on the relevant issue, including before the original statute
here was enacted. See Thompson v. Civil Service Comm’n, 63 Ill. App. 3d 153, 155 (1978)
(disagreeing with A-1 Security Services); see also Nudell v. Forest Preserve District, 207 Ill.
2d 409, 420-21 (2005) (same). Finally, regardless of the requirements in the Administrative
Code, administrative rules that conflict with a statute are invalid. Klein Construction/Illinois
Insurance Guaranty Fund v. Illinois Workers’ Compensation Comm’n, 384 Ill. App. 3d 233,
237 (2008). That is, to the extent that the administrative rules conflict with section 39.2(b),
we follow the statute’s requirements. 2
¶ 29 Maggio’s arguments attempting to distinguish $30,700 United States Currency are not
persuasive. Maggio argues that $30,700 United States Currency involved a statute that
clearly stated that notice was effective upon mailing, unlike in this case. Maggio also notes
that, under the Drug Forfeiture Act, the claimant has the burden to notify the State of a
change of address prior to the mailing of notice (see $30,700 United States Currency, 199 Ill.
2d at 154-55), whereas section 39.2 requires the applicant to determine, from tax records, the
individuals entitled to notice (see 415 ILCS 5/39.2 (West 2012)). Maggio’s arguments would
potentially have some merit if the supreme court’s analysis were limited to the points he
cites. However, the supreme court also discussed Avdich in detail in a manner that
undermined Ogle County Board’s interpretation of the case. Again, Avdich had served as
Ogle County Board’s authority for reading section 39.2(b) to require receipt of notice, so
Ogle County Board’s reasoning on this issue is no longer valid. Instead, we follow the
reasoning in $30,700 United States Currency and conclude that section 39.2(b) does not
require receipt of notice.
¶ 30 B. Reasonable Time to Ensure Delivery
¶ 31 Next, Maggio argues that the IPCB erred in finding that WLC’s service effort was
reasonably calculated to achieve service on all individuals entitled to notice. He maintains
that there is nothing in section 39.2(b) that allows for such a “reasonableness” assessment,
but rather the statute requires that notice be served no later than 14 days before the siting
application is filed. He again cites the Administrative Code provision stating, “In the case of
service by registered or certified mail, or by messenger service, service is deemed complete
on the date specified on the registered or certified mail receipt or the messenger service
2
We do not purport to find section 101.300(c) of title 35 of the Administrative Code (35 Ill. Adm.
Code 101.300(c) (2005)) entirely invalid but, rather, find that it does not take precedence over the plain
language of section 39.2(b) and relevant case law.
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receipt.” 35 Ill. Adm. Code 101.300(c) (2005). He therefore argues that, as did not occur
here, notice must be received at least 14 days before the siting application is filed.
¶ 32 Maggio maintains that, even otherwise, the stipulated facts show that WLC’s service
effort was not reasonably calculated to achieve timely service on all persons entitled to
notice, because the notices were mailed only one week before the service deadline and that
week included a “shortened delivery day” (New Year’s Eve) and a full delivery holiday
(New Year’s Day). He argues that WLC further delayed service by placing the notices in a
mailbox in Ottawa, where WLC’s counsel is located, rather than delivering the notices to the
post offices for Rockford, Sycamore, and Monroe Center, where the notices were to be
served. Finally, he argues that WLC could have used tracking information to determine that
certain notices were not being delivered quickly enough, or at all, and it could have then
made some alternative attempt at service.
¶ 33 Again, section 39.2(b) states: “No later than 14 days before the date on which the county
board *** 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” to
adjoining landowners. 415 ILCS 5/39.2(b) (West 2012).
¶ 34 On the subject of reasonable time to ensure delivery, the IPCB stated in its decision as
follows. It had previously held that registered mailings must be sent in a manner reasonably
calculated to result in timely receipt. See City of Columbia, Ill. Pollution Control Bd. Op.
85-177 (Apr. 3, 1986) (the IPCB would not construe the Act as requiring that preapplication
notice be received by all parties at least 14 days before the application’s filing, but service of
notice must be initiated sufficiently far in advance to reasonably expect receipt at least 14
days in advance of the filing); see also Waste Management, Ill. Pollution Control Bd. Op.
89-28 (Aug. 10, 1989) (applying reasonable expectation rule). For example, it had held that
sending the notices three days prior to the deadline did not ensure the delivery of the notices
before the deadline. See Carmichael, Ill. Pollution Control Bd. Op. 93-114 (Oct. 7, 1993). It
had also followed a rebuttable presumption in its procedural rules that mail will be delivered
within four days. See Waste Management, Ill. Pollution Control Bd. Op. 89-28. Here, the
preapplication notices were sent seven days before the January 3, 2012, deadline even
accounting for New Year’s Day. Tracking information for all of the undelivered notices
indicated that they had “ ‘arrived at the unit’ ” ready for delivery on December 29, 2011.
Further, 94 of the 102 notices were delivered before the deadline, and only one parcel did not
receive the notice before WLC submitted its application on January 17, 2012. Therefore, in
mailing the notices on December 27, 2011, WLC reasonably calculated that they would be
delivered no later than 14 days before it filed its application.
¶ 35 On appeal, WLC argues that its notices were served on December 27, 2011, upon
delivery to the post office, 21 days before the filing of the siting application.
¶ 36 The IPCB argues on appeal that, while section 39.2(b)’s “return receipt requested”
language does not require that notice be actually received at least 14 days before the
application’s filing, it also does not state that service of the notices is complete upon mailing.
The IPCB argues that, because the statute is silent on when the notices must be received, the
IPCB, as the agency empowered to enforce and implement the Act, examined whether the
notices were mailed sufficiently far in advance to reasonably expect that they would be
received at least 14 days before the application was filed. The IPCB argues that its
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construction furthers the purposes of section 39.2(b)’s notice requirement because it gives
surrounding landowners adequate time to comment on a proposed site.
¶ 37 Regarding IPCB’s last point, we note that section 39.2(b) requires applicants to “cause
written notice *** to be served” at least 14 days before a site application is even filed (415
ILCS 5/39.2(b) (West 2012)), so it is unclear how landowners would use that time to
officially (and knowledgeably) comment on the proposed site. Landowner comments will
generally be heard after the application is actually filed, before and during a public hearing
on the application, with the public hearing occurring no sooner than 90 days after the county
board receives the application. See 415 ILCS 5/39.2(d) (West 2012). Landowners may also
comment in letters postmarked up to 30 days after the last public hearing. See 415 ILCS
5/39.2(c) (West 2012). Therefore, the IPCB’s argument that its construction of “return
receipt requested” furthers the statute’s purpose by giving surrounding landowners adequate
time to comment on a proposed site is without merit.
¶ 38 Returning to Maggio’s argument, we disagree that notice must be received at least 14
days before the siting application is filed. As discussed, our supreme court has interpreted the
language “return receipt requested” to mean that return of the receipt is not required for
perfected service ($30,700 United States Currency, 199 Ill. 2d at 151-53), and, if we were to
interpret section 39.2(b) as requiring proof of the receipt of the notices at least 14 days ahead
of the application’s filing, it would be akin to creating such a condition. “We may not add
exceptions, limitations, or conditions to statutes in derogation of their plain meaning.” Holly
v. Montes, 231 Ill. 2d 153, 159 (2008).
¶ 39 As mentioned, in his dissent in Ogle County Board, Justice McLaren stated that the
“14-day requirement [of section 39.2(b)] relates to the mailing of the registered mail and not
to actual receipt (service) of the mail.” Ogle County Board, 272 Ill. App. 3d at 197
(McLaren, P.J., dissenting). This interpretation is consistent with WLC’s argument on
appeal. Justice McLaren reasoned that the phrase “cause to be served” meant that the mailing
of the letter was subject to the 14-day requirement, because the phrase “fourteen days” was
not located after the phrase “to be served” and because the word “cause” would otherwise
have no significance. Id. If Justice McLaren and WLC are correct that the statute simply
requires that the notices be mailed, return receipt requested, at least 14 days before the siting
application is filed, WLC clearly complied with the statute by mailing the notices 21 days
before it filed its application.
¶ 40 Conversely, if the IPCB’s interpretation is correct, that the statute allows it to examine
whether notices were mailed far enough in advance to reasonably expect that they would be
received at least 14 days before the application was filed, the IPCB’s determination that
WLC complied with this standard is not against the manifest weight of the evidence. 3
Contrary to Maggio’s argument, there is no evidence in the record that New Year’s Eve is a
“shortened delivery day,” and, as the IPCB points out, New Year’s Day in 2012 was a
Sunday on which there would not have been mail delivery anyway. We find no basis to
disturb the IPCB’s finding that by sending the notices on December 27, 2011, WLC
reasonably calculated that they would be delivered no later than January 3, 2012, 14 days
before it filed its application on January 17, 2012. Although Maggio points out some
3
When the parties dispute an administrative agency’s factual findings, we apply a
manifest-weight-of-the-evidence standard. Provena Covenant Medical Center, 236 Ill. 2d at 386.
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alternative measures that WLC could have taken to better ensure that notices were received at
least 14 days before the application’s filing, such measures were not required by section
39.2(b).
¶ 41 Based on our resolution that WLC complied with section 39.2(b) regardless of whether
the statute (a) requires that the notices simply be sent by registered mail (return receipt
requested) at least 14 days before the siting application is filed, or (b) is silent of the issue of
when service is complete, allowing the IPCB to examine whether notices were mailed
sufficiently far in advance to reasonably expect that they would be received at least 14 days
before the filing, we do not definitively resolve which interpretation is correct.
¶ 42 III. CONCLUSION
¶ 43 In sum, we conclude that section 39.2(b) does not require that landowners actually
receive preapplication notices at least 14 days before the siting application is filed. We
further conclude that the IPCB did not err in finding that WLC complied with section 39.2(b)
by mailing the notices by registered mail, return receipt requested, 21 days before it filed its
siting application.
¶ 44 For the foregoing reasons, we affirm the decision of the IPCB.
¶ 45 Affirmed.
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