Fredette v. Village of Beecher

PRESIDING JUSTICE WOMBACHER

delivered the opinion of the court:

The plaintiffs appeal the dismissal of their complaint by the trial court.

The County of Will established a health department in 1943 which has been and continues to be vested with comprehensive authority to provide, protect, promulgate, regulate, and enforce all matters relating to public health within its jurisdiction.

The Village of Beecher is a municipal entity located within the County of Will. In 1962, the village began operating a sewage treatment plant which was subject to the various regulations and authority of the county health department. In 1963, the Will County Health Department adopted a sewage treatment and disposal ordinance which provides that all sewage treatment or disposal units which have liquid surfaces open to the free atmosphere must be located at least 200 feet from the property line of all adjacent properties. In 1972, a subdivision containing the houses owned by the plaintiffs herein was developed. This subdivision is located within a close proximity to the village’s sewage treatment plant.

In 1987, the Village of Beecher desired to construct an aeration lagoon, the purpose of which would be to further aerate the water after all the sewage had been treated and removed within the plant. This lagoon would contain a pool of standing water for sewage treatment purposes, but the plans called for berms and horticultural barriers to surround this lagoon which would provide additional protection for those residing in this subdivision. In order to legally construct this lagoon, the village would have to obtain a variance from the health department because some properties within this subdivision would be located within the protected area covered by this ordinance.

Once an application for variance is filed, any interested person may file a written request for a hearing to determine the merits of a variance. The health authority, which is a designated health officer or county executive officer or representative, has the ability to determine that strict compliance with a health department decision may not be warranted, especially when the anticipatory effects of that decision may cause undue hardship on a petitioner and if the health authority finds that public health will be adequately protected and substantial justice done by granting the variance. The health authority may then grant the variance upon such conditions and terms as it deems necessary.

The village filed its variance request with the Will County health authority. The director of the health department granted the variance on November 10, 1987. On November 22, 1987, and on December 29, 1987, a representative of the subdivision property owners asked the county health department to review the director’s decision, which it upheld.

The plaintiffs filed a two-count complaint in circuit court against the village, county, and board of health. Count I sought administrative review of the director’s and board’s decisions, and count II alleged the Village of Beecher was going to construct an aeration lagoon without receiving the requisite special use permit.

All defendants moved to involuntarily dismiss count I, and the Village of Beecher moved to dismiss count II, and defendants’ motions were granted by the trial court.

Plaintiffs then filed an amended complaint, reiterating count I. In addition, plaintiffs alleged that the board induced them not to seek administrative review within 35 days of the director’s decision. Instead, the plaintiffs requested administrative review within 35 days of the board’s decision. In count II, plaintiffs claimed the Village of Beecher should be estopped from denying the property was classified as an R-3 zone, even though the zoning ordinance classified the property as 1-1. The trial court dismissed plaintiffs’ amended complaint with prejudice. This appeal follows.

The plaintiffs contend that they filed their complaint for administrative review within the proper time limits prescribed by law, therefore, the trial court erred in dismissing their complaint. On November 20, 1987, the director granted the variance in question. On November 22, 1987, and on December 29, 1987, the plaintiffs inquired of the director as to the merits and reasons for his decision. The board of health thereafter upheld the director’s decision on January 13, 1988, following a hearing at which it heard from a representative of the affected property owners (plaintiffs) and the Village of Beecher.

The plaintiffs filed a complaint in circuit court on or about February 16, 1988, which was filed within 35 days of the board’s decision, but not within 35 days of the director’s decision. The circuit court dismissed count I of plaintiffs’ complaint, and in so doing, held that the time for plaintiffs to file this action for administrative review was within 35 days of the director’s decision, not the board’s decision.

Under the Administrative Review Law (Ill. Rev. Stat. 1987, ch. 110, par. 3—101 et seq.), an action for judicial review must be commenced within 35 days of the final administrative decision. If the agency has no rule or statute for review or rehearing, the final order is ripe for review following its rendition.

The final decision-making authority with respect to variation requests is vested with the health director. (Will County Sewage Treatment and Disposal Ordinance §13.) There are no provisions within said ordinance of subsequent review procedures of the director’s decision by the board, or any other administrative agency. The decision by the director was the final administrative decision for purposes of the Administrative Review Law. (Ill. Rev. Stat. 1987, ch. 110, par. 3—101.) Therefore, plaintiffs’ complaint was not filed within 35 days of the director’s decision, and the circuit court was correct in dismissing the complaint. Timely filing of an administrative review complaint is a jurisdictional requirement, which cannot be waived. Fredman Brothers Furniture Co. v. Department of Revenue (1984), 129 Ill. App. 3d 38, 471 N.E.2d 1037, aff'd (1985), 109 Ill. 2d 202, 486 N.E.2d 893.

If there is no agency rule or statute which provides for a rehearing, then the petition for rehearing filed with the administrative agency will not toll the 35-day period in an action for judicial review. See Castaneda v. Human Rights Comm’n (1988), 175 Ill. App. 3d 1085, 537 N.E.2d 807; Oliver v. Civil Service Comm’n (1967), 80 Ill. App. 2d 329, 224 N.E.2d 671.

Plaintiffs also argue that the defendant County of Will should be estopped to deny the final decision was made when rendered by the board of health. Regardless of plaintiffs’ claim that they were induced to wait until the board rendered its decision in order to invoke the Administrative Review Law and seek judicial review, they should have filed their complaint within 35 days of the director’s decision, and we agree that they are now barred from further proceeding therewith. (Oliver v. Civil Service Comm’n (1967), 80 Ill. App. 2d 329, 334, 224 N.E.2d 671.) Even though the board placed the director’s decision on its agenda for review, it did not have authority to do so, and any decision or further resolution would have been null and void since the County of Will is not a home rule unit. Oliver v. Civil Service Comm’n, 80 Ill. App. 2d at 334.

The duties of a county board of health include the administrative management of the county health department, enforcement of laws and ordinances related to the preservation of health, and the investigation and inspection of contagious or infectious diseases. (Ill. Rev. Stat. 1987, ch. 1111/2, pars. 20c12, 20c13.) There exists no law, statute, bylaw, or ordinance giving the board the power to grant or review variances issued by health department directors.

Finally, plaintiffs contend the village should be compelled to hold a public hearing regarding the issuance of a special use permit before commencing construction of the lagoon. We agree. The village adopted a zoning ordinance which was intended to promote and protect public health, safety, and welfare and to protect the character and maintain the stability of residential uses within the village. The village should hold a public hearing. Initially, it is not clear what the correct zoning classification was assigned the property on which defendants sought to construct the lagoon, and secondly, when affirmative actions are taken by public authorities causing property owners to change their position and incur great expenditures which would not have been made but for the affirmative action of the governmental agency, the courts have granted estoppel and required compliance with the rules and regulations which would not otherwise have been in effect. (People ex rel. Beverly Bank v. Hill (1966), 75 Ill. App. 2d 69, 221 N.E.2d 40.) This matter should be remanded for further consideration by the circuit court with instructions to determine the correct zoning classification and whether the affected property owners will be caused great expenditure if the village is permitted to proceed with the construction of the lagoon.

Based on the foregoing, the circuit court of Will County is affirmed in part, reversed in part, and this matter is hereby remanded for further consideration in accordance with this opinion.

Affirmed in part; reversed in part and remanded.

SCOTT, J., concurs.