ILLINOIS POLLUTION CONTROL BOARD
December 3,
1992
CITIZENS AGAINST REGIONAL LANDFILL,
)
Petitioners,
v.
)
PCB 92—156
(Landfill Siting)
THE COUNTY BOARD OF WHITESIDE COUNTY
)
and WASTE MANAGEMENT OF ILLINOIS,
)
INC.,
)
Respondents.
ORDER OF THE BOARD
(by B.
Forcade):
This matter comes before the Board on a Motion to Strike
filed on November 10,
1992 by Waste Management of Illinois,
Inc.
(WNII).
The motion seeks to strike Section I of the petition
filed on October 21,
1992 by Citizens Against Regional Landfill
(CARL),
on the grounds that it is frivolous and without any
factual or legal basis.
CARL
has not filed a response to the
motion to strike.
Also before the Board is a motion by the County Board of
Whiteside County
(County Board)
to file the record and
certificate of record instanter.
This motion along with the
record was filed with the Board on November 23, 1992.
The motion
to file the record and certificate of record instanter is
granted.
Section I of the petition claims that the County Board acted
contrary to the manifest weight of the evidence in finding that
it had jurisdiction to hold the public meeting.
The petition
claims a jurisdictional defect existed in that the County Board
failed to establish that the required property owners were timely
notified by registered mail.
The petition claims that two
residents were not notified.
The petition also claims that the
notices failed to include a proper legal description or an
accurate legal description of the facility,
as required by
statute.
Section
I also asserts that the County Board failed to
make available for public inspection the site approval and the
supporting documents as required by Section 39.2(c)
of the
Environmental Protection Act (Act).
(Ill.
Rev. Stat.
ch.
111 1/2
par. 1039.2(c).)
In its motion to strike, WMII asserts that sufficient notice
was provided and the County Board determined that WMII had
satisfied the notice requirements.
WHII asserts that CARL’s
allegations attacking jurisdiction neither contain nor refer to
any facts or law to support them.
WMII contends that
CARL
is
mistaken in its assertion that notice is required of all
residents within 250 feet of the landmark used to provide a
0137-0563
2
general landmark description.
WMII asserts that the language of
Section 39.2(b)
of the Act and prior Board aec’isions require
notification of all residents within 250 feet 3f the nearest lot
line.
(Land and Lakes Comiany v. Village of Romeoville,
(August
26,
1991),
PCB 91—7.)
WHII asserts that the specific residents
that
CARL
contends were not notified reside at least 650 feet
from the lot line of the proposed facility.
Attached to the
motion to strike is a plat survey and an affidavit from Thomas J.
Casel,
a surveyor, supporting WMII’s contention that the two
residences are at least 650 feet from the boundary of the
facility.
WMII asserts that a legal description is not required
in the notice.
(Daubs Landfill. Inc. v. Pollution Control Board
(5th Dist.
1988),
166 Ill. App.
3d 778, 520 N.E.2d 777.)
WMII
further asserts that
CARL
does not claim that the description
provided in the notice failed to apprise adjacent landowners of
the site location.
WMII further asserts that CARL’s jurisdictional claims are
neither well grounded by fact nor warranted by law.
WMII
contends that CARL’s claims violate Illinois Supreme Court Rule
137 and requests the Board to impose sanctions against CARL.
WMII requests that the Board order
CARL
to pay the reasonable
expenses and fees incurred by WMII in preparing the motion to
strike.
WHII’s motion is supported by affidavit and by case law.
Section 39.2(b)
of the Act requires that written notice be served
“on the owners of all property within 250 feet in each direction
of the lot line of the subject property”.
Property owners can,
subject to public regulations, subdivide their tract as they see
fit and such subdivision will be given the construction of lots.
(Lehman
V.
Revell
(1933),
354 Ill.
262,
188 N.E.2d 531.)
In Land
and Lakes
(August 26,
1991), PCB 91-7, the Board determined that
“subject property” as used in section 39.2 of the Act was
equivalent to “sanitary landfill”.
The notice requirements
provided in section 39.2(b) require the notice to include “the
location of the proposed site”.
CARL
has filed no response in opposition to the motion to
strike.
Therefore, the facts presented by WMII in the motion to
strike are not disputed.
35 Ill.
Adin. Code 101.241(b) provides
that the failure to file a response to a motion results in waiver
of objection to the motion.
Consequently,
CARL
has waived any
objection to WMII’s motion to strike Count
I.
WMII’s motion to strike is granted.
The portions of Section
I alleging lack of jurisdiction due to defects in the notice
requirements are hereby stricken from the petition.
The Board
notes that Section 1 of the petition also alleges that the County
Board failed to make available for public inspection the
application for site approval and supporting documents.
WMII
does not address this issue in its motion to strike.
The
O137-O56~
3
allegation concerning the County Board’s failure to provide
documents for public inspection will not be stricken.
WMII has failed to show that sanctions according to Illinois
Supreme Court Rule 137 are warranted in this circumstance.
WNII
does not contend that other Sections of the petition are
frivolous or violate Rule 137.
The Board declines to impose
sanctions.
IT IS SO ORDERED.
I, Dorothy M. Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certify that t~ieabove order was adopted on the
day of
~
,
1992,
by a vote
of
7
-
.
Dorothy M.
•4~inn, Clerk
Illinois Po4lution Control Board
01370565