ILLINOIS POLLUTION CONTROL BOARD
July 22, 1993
LARRY SLATES, LONNIE
)
SEYMOUR, JAMES KLABER,
FAYE MOTT, and HOOPESTON
COMMUNITY MEMORIAL HOSPITAL
)
)
Petitioners,
)
v.
)
PCB 93—106
)
(Landfill Siting Review)
ILLINOIS LANDFILLS, INC., and
)
HOOPESTON CITY COUNCIL, on
)
behalf of the CITY OF
)
HOOPESTON,
)
Respondent.
ORDER OF THE BOARD (by J. Theodore Meyer):
This matter is before the Board on the issue.of who are
proper parties to this appeal. In its June 3 and June 17 orders,
the Board established and revised a schedule for the submission
of briefs on this issue. Petitioners filed their brief on July
2, 1993, and ILl filed its brief on July 12, .1993. On July 22,
1993, petitioners filed a reply brief. However, the briefing
schedule entered by the Board did not allow for a reply, and
petitioners have not moved for leave to file a reply. Thus, we
have not considered the reply.
This issue arises from petitioners’ statement in their
petition for review that petitioners “were in attendance,
participated in the p)ublic h)earing process conducted by the
council
or submitted written objections as part of the (pjublic
hJearing.”
(Pet. at 2, emphasis added.) Section 40.1(b) of the
Act provides for appeal by third-parties who “participated in the
public hearing conducted by the ~ governing body of the
municipality.” (415 ILCS 5/40.1(b) (1992).) As the Board noted
in our June 3 order, we have previously held that for persons who
did not attend the local hearing, “simply submitting a public
comment after the close of the public hearing does not constitute
an adequate basis for standing to seek review.” (Valessares v.
County Board of Kane County (July 16, 1987), 79 PCB 106, 109, PCB
87—36.) We have also held that “mere” attendance at the local
hearing is sufficient to confer standing to appeal. (Zeman v.
Village of Summit (December 17, 1992), PCB 92—174 and PCB 92—177
(cons.); Valessares; Board of Trustees of Casner Township v.
CountY of Jefferson (April 4, 1985), PCB 84—175 and PCB 84—176
(cons.).)
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Individuals
Both petitioners and ILl agree that Larry Slates, Lonnie
Seymour, James Kiaber, and Faye Mott were personally present at
hearing. Thus, these four individuals have standing to appeal
the City of Hoopeston’s decision, and are proper parties to this
appeal.
C.A.R.E.
Petitioners contend that C.A.R.E. appeared at the public
hearing through members Slates, Seymour, Kiaber, and Mott.
Petitioners state that each of these four individuals appeared at
the public hearing “both as individuals and in what was obviously
an orchestrated effort on their part as members of C..A.R.E.”.
(Pet. Brief at 7.)
In response, ILl argues that none of these four individuals
indicated at the hearing in any way that they were affiliated
with C.A.R.E., and that no person at the public hearing made any
reference to C.A.R.E. ILl further contends that a corporation
called “Hoopeston C.A.R.E., Inc.” was incorporated by the
Illinois Secretary of State on June 18, 1993, after the public
hearing and after the instant petition for review was filed.
Thus, ILl maintains that C.A.R.E. could not have participated in
the public hearing and has no standing to pursue this appeal.
The Board first notes that ILl does not argue or present
support for the proposition that a group be actually incorporated
in order to pursue a third-party appeal under Section 40.1.
Thus, the fact that C.A.R.E. was not incorporated until after the
public hearing is not dispositive of the issue of standing.
Rather, the issue is whether C.A.R.E., as an entity, participated
in the public hearing. After reviewing the record and the
parties’ arguments, the Board finds no evidence that any
individual participated in the public hearing on behalf of
C.A.R.E. None of the testimony or comments made by Slates,
Seymour, Kiaber, or Mott mention C.A.R.E. or refer to any type of
group. The sign-in sheet for the public hearing also does not
show any indication that anyone was appearing on behalf of
C.A.R.E. or any other group. (Pet. brief, Exh. D.) Because
there is no evidence in the record that any individual
participated in the hearing on behalf of C.A.R.E., we find that
C.A.R.E. as a group does not have standing under Section 40.1 to
appeal Hoopeston’s decision. Thus, C.A.R.E. is dismissed as a
petitioner.
Hoopeston Community Memorial Hospital
Petitioners state that Hoopeston Community Memorial Hospital
and Nursing Home (HCMH), through Russell Leigh, president of the
HCMH board of directors, submitted written comments both before
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and after the public hearing. Petitioners also contend that
Leigh was instructed by the board of directors to appear and
testify on behalf of HCMH at the hearing, but was unable to do so
because of a restrictive ordinance which required pre—
registration 21 days prior to hearing. Petitioners maintain that
the notice of public hearing did not set forth the requirement of
pre—registration. Attached to petitioners’ brief is an affidavit
from Leigh, stating that he learned of the 21-day pre-
registration rule 10 days before hearing, that he believed and
acted under the assumption that he would be forbidden from
participating in the hearing because he had not complied with the
requirement, and that were it not for the “ordinance preventing
my appearance and participation”, he would have appeared,
questioned, and testified on behalf of HCMH. (Pet. brief, Exh.
C.)
Petitioners argue that since Section 39.2 specifically
provides for filing of written comments, and states that a local
decisionmaker shall consider comments, persons who file such
comments should not be denied the right to appeal, especially
where those parties contend that the local decisionmaker failed
to consider comments. Petitioners also contend that the local
ordinance requiring registration 21 days before hearing is
unenforceable as unduly restrictive and because Hoopeston failed
to adequately inform the public of the provisions. Finally,
petitioners maintain that the Board should find that petitioners’
inability to comply with the local ordinance is a question of
fact that must be addressed by the Board only after evidence is
presented at the Board’s hearing in this matter. Thus,
petitioners contend that HCMH should be allowed to be a party to
this appeal.
In response, ILl first notes that in Valessares, the Board
ruled that submission of written comments does not confer
standing on a person who did not otherwise participate because
the Act specifically distinguishes the public comment provisions
of Section 39.2 from the “public hearing” referred to in Section
40.1. ILl argues that establishing an exception for those who
did not attend the public hearing but assert that their comments
were not considered would effectively eliminate the provisions in
Section 40.1 requiring participation in the public hearing.
Second, ILl contends that petitioners’ claims regarding the city
ordinance misses the point that all that is required under the
statute to confer standing is that a person actually attend the
hearing, even if they do not ask questions or make statements on
the record. ILl maintains that there were no barriers preventing
HCMH from attending the public hearing.
The Board finds that HCMH’s filing of a comment does not
confer standing to appeal. We specifically reaffirm our finding
in Valessares that simply submitting a public comment does not
constitute an adequate basis for standing to seek review. One
4
must be physically present at the local hearing, either in person
or through an authorized representative, in order to have
standing to seek review pursuant to Section 40.1. To hold
otherwise would violate the clear language of Section 40.1(b)
that “a third party other than the applicant who participated in
the public hearing
~
may petition the Board
***
to contest the
approval of the
***
governing body of the municipality.” (415
ILCS 5/40.1(b) (1992).)
As to the local ordinance, we make no finding today on
whether the ordinance is fundamentally fair. We note that Leigh
states in his affidavit that he learned of the 21—day pre-
registration requirement just 10 days before hearing, and that
“were it not for said ordinance preventing my appearance and
participation, I would have appeared, questioned, and testified”.
(Pet. brief, Exh. C.) However, there is no further explanation
of how Leigh learned of the ordinance, or why he believed that
the ordinance barred him from appearing at hearing. Therefore,
we will reserve ruling on the question of HCMH’s standing. HCMH
may present evidence at the Board’s hearing on the circumstances
surrounding Leigh’s belief that he could not appear at the local
hearing. For example, did a municipal official tell Leigh that
the ordinance prevented him from even appearing at hearing? We
will address the issue of HCMH’s standing in the Board’s final
opinion and order in this case.
Hoopeston Industrial Corporation
Petitioners state that Hoopeston Industrial Corporation
(HIC) was represented at hearing by its director, Harold Cox, and
that HIC filed a written public comment. Petitioners have
provided an affidavit from Cox stating that he is and was on
March 3, 1993 (the hearing date) a member of the board of
directors of HIC, and “as such did attend the public hearing”.
(Pet. brief, Exh. F.) Petitioners contend that although Cox
attended and signed in at the hearing, Cox was under the
understanding that he would not be allowed to participate because
of the 21 day registration period.
ILl argues that although Cox did attend the hearing, he did
not identify himself on the sign-in sheet or otherwise as a
representative of HIC. ILl contends that the Board has
previously held that where an attorney appeared at public
hearing, made comments, and even mentioned an individual by name,
but did not state that he was representing that individual, the
individual had not attended and was not represented at the public
hearing. (Valessares, 79 PCB 106, 115.) Thus, ILl maintains
that although Cox attended the hearing, HIC did not, and thus
does not having standing to appeal Hoopeston’s decision.
The Board finds no evidence in the record that HIC was
represented at hearing. The sign-up sheet does include Cox’s
5
signature, but there is no indication that he was appearing on
behalf of HIC. (Pet. brief, Exh. D.) Likewise, the hearing
transcript does not contain any indication that Cox was appearing
on behalf of HIC, although the hearing officer did provide for
each individual listed on the sheet to make oral comment. (Tr.
at 10, 305-306, 324.) In sum, there was no way for anyone at the
hearing to know that HIC was in attendance. Cox’s affidavit,
submitted with petitioners’ brief, cannot remedy that fact. We
believe that the record of a local hearing must affirmatively
reflect that an individual appeared on behalf of an entity in
order for that entity to have standing to appeal a local siting
decision. Based on our decision in Valessares, where we found
that an individual was not represented at hearing where an
attorney did not specifically state that he represented that
individual, the Board finds that HIC was not represented at
hearing, and thus does not have standing to appeal. Thus, HIC is
dismissed as a petitioner in this matter.
William and Mary Recian
Petitioners state that William and Mary Regan (the Regans)
are owners and trustees of real estate that abuts the property
for which siting approval was requested. Petitioners state that
the Regans asked their attorney to submit a public comment on
their behalf, because the Regans now live in California.
Petitioners contend that had the Regans known that their comments
would not be considered by the Hoopeston City Council, they
“would have attended and participated at the public hearing.”
(Pet. brief at 7.) Petitioners assert that the Regans’
circumstances present a reason for refinement of the rule on
standing, because “to impose upon them the necessity of returning
to Hoopeston from California and speaking at a public hearing
***
would be to punish and restrict them for residing outside of the
Hoopeston area while owning land in Hoopestori.” (Pet. brief at
16.)
In response, ILl states that there is no dispute that the
Regans were not present at the hearing, either in person or
through a representative. ILl contends that the Regans’ attorney
was free to appear at the public hearing on the Regan’s behalf,
but did not do so. ILl maintains that no special exception is
warranted to allow the Regans standing to appeal Hoopeston’s
decision.
The Board finds that the Regans do not have standing to
appeal Hoopeston’s decision. As stated above, simply submitting
a public comment does not constitute an adequate basis for
standing to seek review. As to petitioners’ contention that an
exception should be created because of the distance between the
Regans’ residence and their property in Hoopeston, the Board
points out that there is no requirement that the Regans
themselves appear at the hearing. The Regans could have directed
6
a representative to appear at the hearing on their behalf. The
Board specifically rejects petitioners’ assertion that failing to
create an exception in some way punishes the Regans for residing
outside of Hoopeston while owning property in Hoopeston. Again,
Section 40.1 provides that only those who participated in the
public hearing have standing to appeal. A person must be present
at that local hearing,, either in person or through a
representative. There is no contention that the Regans’ were
either present at or represented at the public hearing.
Therefore, they are dismissed as petitioners in this case.
James Van Weelden
ILl asks the Board to correct the caption in this case as it
refers to “James Van Weelden d/b/a Illinois Landfills Inc.” ILl
states that Section 40.1 provides that “the applicant” is to be
named as respondent. ILl contends that the applicant in this
matter is the corporate entity “Illinois Landfills, Inc.”, and
that ILl is the only entity referred to in the application.
Thus, ILl asks that Van Weelden be dismissed as a respondent.
The Board finds no evidence that James Van Weelden is the
applicant. Rather, the applicant is ILl. The request to dismiss
Van Weelden is granted.
CONCLUSION
In sum, the Board reaffirms its earlier holding that simply
submitting a public comment, in the absence of participation in
the public hearing, is not sufficient to confer standing to
appeal a local government’s decision on an application for siting
approval. Mere attendance at the hearing is all that is
required, either in person or through a representative, to
constitute “participation” within the meaning of Section 40.1.
To hold otherwise would violate the statutory provisions~
governing this local siting process.
Petitioners C.A.R.E., HIC, and the Regans are dismissed as
petitioners, because there is no evidence that they appeared at
the hearing. The Board reserves ruling on whether HCMH has
standing to appeal Hoopeston’s decision. Respondent James Van
Weelden is dismissed, since the record reflects that the
applicant in this case is ILl. The caption in this case has been
modified to reflect these changes.
IT IS SO ORDERED.
B. Forcade, G.T. Girard, and C. A. Manning dissented.
7
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby cert&~ythat the above order was adopted, othe
~‘--
day of
_____________,
1993, by a vote of-~f~
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i
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Dorothy N. ~unn, Clerk
Illinois Pc~llutionControl Board