ILLINOIS POLLUTION CONTROL BOARD
May 20,
1993
CITY OF DES PLAINES, GAIL
PAPASTERIADIS,
and GABRIEL AND
LINDA GULO,
Complainants,
V.
)
PCB 92—127
(Enforcement)
SOLID WASTE AGENCY OF NORTHERN
)
COOK COUNTY,
Respondent.
SANFORD M.
STEIN
AND
GEORGIA VLAMIS APPEARED ON BEHALF OF
COMPLAINANTS;
THOMAS
B.
BURNEY AND GLENN
C. SECHEN APPEARED ON BEHALF OF
RESPONDENT.
OPINION AND ORDER OF THE BOARD
(by R.C.
Flemal):
On September
1,
1992,
City of Des Plaines,
Gail
Papasteriadis, Gabriel and Linda Gulo
(Des Plaines or
complainants)
filed a complaint alleging violation by
(Solid
Waste Agency of Northern Cook County
(SWANCC or respondent)
of
the setback provisions contained in Section 22.14 of the Illinois
Environmental Protection Act
(415
ILCS 5/22.14
(1993)1) (Act),
pertaining to the siting of a solid waste transfer station.
The complaint is brought pursuant to Sections
5(d)
and 31(b)
of the Act and contains four “alternative”
counts,
as discussed
below.
Hearing was held on December
21 and 23,
1992,
and January
11,
12,
19, and 28,
1993
in Chicago.
Members of the public
attended.
The parties have provided a stipulated agreement addressing
some of the issues initially presented to the Board.
(Joint Exh.
2.)
Remaining is whether SWANCC’s Wheeling Township facility is
located within an ‘~industrialarea’t
(as that term is used within
Section 22.14 of the Act), whether the applicable setback
limitation
is thereby 800 or 1000 feet,
and,
in either case, how
is the 800 or 1000 foot setback to be measured.
Based on the record before it, the Board finds that
complainants have failed to prove that respondent’s siting of the
proposed transfer station violates Section 22.14 of the Act.
This action accordingly will be dismissed.
The Act was formerly codified at Ill.Rev.Stat.
1991,
ch.
111½,
par.
1001 ~
in
L!.2-3533
—2—
BACKGROUND
SWANCC is a Municipal Joint Action Agency organized and
existing by authority of the Intergovernmental Cooperation Act,
(5 ILCS 220/3.2,
3.2(a))2
SWANCC was established May
2,
1988
pursuant to an “Agreement Establishing the Solid Waste Agency of
Northern Cook County as a Municipal Joint Action Agency” for the
purpose of collecting,
transporting, treating,
storing,
processing,
and disposing of municipal solid waste.
(Complaint
at
2;
answer at
3)
SWANCC owns
50 acres bounded by the Cook County Forest
Preserve on the north,
Des Plaines River Road on the west,
the
Carmelite Monastery and Central Road on the south, and the Des
Plaines River and the closed Sexton landfill on the east
(the
“SWANCC property”).
(Tr. at 1055—56; 1205—06; 660-61; Resp.
Exh.
5.)
On November
19, 1990 in accordance with “An Ordinance
Amending the Cook County Zoning Ordinance Rezoning Certain
Property and Providing for A Special Use in Wheeling Township”
(hereinafter, Rezoning and Special Use Ordinance),
43 acres
within the 50 acres owned by SWANCC were rezoned by the Cook
County Board of Commissioners
(Cook County Board) from previous
residential zoning
(R—5,
single family residence district)
to an
industrial zoning classification
(I—i,
restricted industrial
district).
(Exh.
B.
to the Complaint.)
The entire area subject
to the Rezoning and Special Use Ordinance
is located east of Des
Plaines River Road,
west of the Des Plaines River and
Wheeling/Northfield Township line,
south of the Cook County
Forest Preserve District boundary,
and north of Central Road,
all
in Wheeling Township,
Cook County.
(Complaint at
3; Answer at
5.)
Des Plaines subsequently challenged the Cook County Board’s
rezoning determination in City of Des Plaines v.
County of Cook
(June
12,
1991),
90 CH 12163.
That action was dismissed.
The following improvements are planned for the SWANCC
property:
an administration building,
a transfer station,
a
stormwater flood control project, and a potential industrial use
under consideration for an industrial outlot located west of the
transfer station and north of the administration building.
(Tr.
at 1207.)
SWANCC plans to have its staff, clerical employees,
Board of
Directors,
and committees meet and work in the administration
building.
(Tr. at 1041-1042.)
SWANCC further states that people
working in the administration building will not operate the
transfer station.
(Tr.
at 1051—1052.)
An independent contractor
2
Formerly codified at 111. Rev.
Stat.
(1991)
ch.
127,
Sec.
741—749.
01 L~.2-Q53i..
—3—
will operate the transfer station and have offices and conference
rooms in the transfer station, not in the administration
building.
(Tr.
at 1052;
see,
also Resp.
Exh.
18, drawings
13
&
14.)
The proposed flood control projects are to be located
in the
northeast and southeast portions of the SWANCC property, east of
the
transfer station and west of the township line.
These
projects will divert approximately 53 acre feet of water during
flood stage from the Des Plaines River into storage basins where
the water will be held until flood waters recede.
At that time,
water will be metered back into the river over a four—day period.
These flood control projects are not necessary for the transfer
station, and are different from the stormwater detention areas
designed to accommodate the transfer station, administration
building, and industrial outlot.
(Tr. at 1208—1209.)
On February 7,
1992 the Illinois Environmental Protection
Agency
(Agency)
issued permit No.
l992-002-DE to SWANCC for the
development of
a 7.1—acre solid waste management site to bale and
transfer municipal waste
(transfer station or transfer station
site)3.
(Exh.
A. to Complaint)
The transfer station building
and parking are located within that 7.1-acre parcel.
(Tr.
at
710.)
AFFIRMATIVE
DEFENSES
As a preliminary matter, the Board addresses the following
affirmative defenses asserted by SWANCC4:
1.
This Complaint is barred by laches.
2.
This Complaint is barred by
Res Judicata
as a
direct result of the lawsuit, City of Des
Plaines
v. County of Cook,
90 CH 12163.
*
*
*
~ This site
is also referred to in the record as the
“Wheeling Transfer Station”.
‘~
SWANCC filed the document containing its affirmative
defenses on December 18,
1992 and later presented it at hearing.
(See also Board order issued January
7,
1993
in this matter.)
Nevertheless,
in each of its post-trial briefs, affirmative
defenses different than those contained in the original defenses
document were presented.
The Board here addresses only the
affirmative defenses as originally filed, because SWANCC has
never made formal request to have these amended and because
affirmative defenses first raised in post—hearing briefs are
untimely pursuant to 35 Ill. Adm. Code 103.210(b).
0
i ~44U535
—4—
3.
Section 22.14 of the Act is an
unconstitutional intrusion into the home rule
zoning authority of the County of Cook.
4.
This Board does not have jurisdiction as this
case constitutes:
a.
an impermissible third party challenge
to the grant of a development permit by
the Agency;
b.
an attempt to reverse the zoning decision of
the County of Cook.
5.
Des Plaines lacks sufficient standing to bring
this action.
Regarding defense #1, the Board finds that SWANCC has not
shown where laches applies to enforcement actions brought before
the Board under the Illinois Environmental Protection Act.
Also,
SWANCC has not shown where Des Plaines has unreasonably delayed
bringing this action to the prejudice of SWANCC.
As Des Plaines
correctly observes:
In assessing the period in which claims will be barred
by laches,
equity follows the law, and generally courts
of equity will adopt the period of limitations
established by statute.
Beynon Building Corp.
v.
National Guardian Life Insurance Co.
(2d Dist.
1983),
118 Ill. App.
3d 754, 455 N.E.2d 246,253.
Thus, where
parties’ rights are not barred by the statute of
limitations, unless their conduct or special
circumstances make it inequitable to grant them relief,
they are not barred by laches either.
~.
Complainants’ claim is brought pursuant to Sections
5(d)
and 31(b)
of the Act.
Neither provision contains
an express limitations period, nor does the Act provide
for a specific limitations period within which
citizens’ complaints must be filed.
(Compl. Brief at
38.)
Also,
the Board notes that the permit was granted in
February 1992 and the instant action was not filed until
September 1992.
Even if the laches defense were applicable,
delay
is not evident under these circumstances, especially since
Des Plaines did not know where within the 43-acre holdings the
transfer station site would be located.
Therqfore,
the Board finds that SWANCC has failed to show
that laches applies to its circumstance in this matter.
U
—
u ~
—5—
Defense #2 has already been ruled on by the Board in this
proceeding by Board order of October
1,
1992.
The Board found
and continues to find that this matter is not barred by City of
Des Plaines v. County of Cook
(June
12,
1991),
90
CII 12163,
for
the reasons stated in the October
1,
1992 order.
Defense #3 was not argued as an unconstitutionality claim
against the statute, but rather was presented by SWANCC in its
brief as a constitutional challenge to Des Plaines’
interpretation of the statute.
The Board construes this as
argument on the merits.
Pertaining to defenses #4 and #5, the Board has already
found that it has jurisdiction
in that it
is empowered under the
Act to adjudicate enforcement actions and can issue cease and
desist orders
(See Section 33 of the Act).
The instant action
is
an enforcement action brought under Section 22.14
of the Act;
it
is not a permit appeal,
and does not constitute an impermissible
third party challenge of the grant of the development permit.
For the same reasons, the action here is an enforcement action
and not an appeal of a zoning decision of Cook County.
It is not
unusual for the Board to face issues relating to zoning in
enforcement actions.
(See Section 33(c)(3)
of the Act.)
Des
Plaines has standing,
as has any person, to bring an enforcement
action under the Act.
(See,
Section 31(b)
of the Act.)
DISCUSSION
Essential to this action is interpretation of a portion of
Section 22.14(a)
of the Act.
That portion reads as follows:
No person may establish any regional pollution control
facility for use as
a garbage transfer station, which
is
located less than 1000 feet from the nearest
property zoned for primarily residential uses or within
1000 feet of any dwelling,
except in counties of at
least 3,000,000 inhabitants.
In counties of at least
3,000,000 inhabitants, no person may establish any
regional pollution control facility for use as a
garbage transfer station which is located less than
1000 feet from the nearest property zoned for primarily
residential uses,
provided, however,
a station which is
located in an industrial area of 10 or more contiguous
acres may be located within 1000 feet but no closer
than 800 feet from the nearest property zoned for
primarily residential uses.
However,
in a county with
over 300,000 and less than 350,000 inhabitants,
a
station used for the transfer or separation of waste
for recycling or disposal in a sanitary landfill that
is located in an industrial area of 10 or more acres
may be located within 1000 feet but no closer than 800
0
L~2-U337
—6—
feet from the nearest property zoned for primarily
residential uses.
The central issue is whether the transfer station is sited
in violation of the setback provisions of Section 22.14 above.
Complaint
For all counts, complainants allege that respondent has
sited the transfer station in violation of the setback
requirements contained in Section 22.14
of the Act.
Essentially,
complainants allege that the proposed transfer station property
is not located in an industrial area of
10 or more contiguous
acres; therefore,
the siting of the station less than 1000 feet
from the nearest residentially zoned property violates Section
22.14
of the Act.
(count I.)
The controversy as presented here
by complainants surrounds the interpretation of the term
“industrial area” used in Section 22.14(a).
When referring to
this “industrial area” designation, the legislature did not add
additional descriptive terminology as it did when referring to
residential property.
In the case of residential property, the
legislature used the phrase “nearest property zoned for primarily
residential uses”.
In the alternative, complainants argue that even if the
transfer station is located in an industrial area,
the siting
violates Section 22.14 because an administration building to be
located on SWANCC’s holdings is part of the transfer station,
and
will be within 800 feet of the nearest property zoned for
primarily residential uses.
(count
II.)
Complainants also argue
in the alternative that the entire 43 acres as rezoned by the
County Board comprises the transfer station site,
and that the
site thus defined violates the Act’s setback requirements.
(count III.)
Lastly, complainants argue in the alternative that
since the permitted site consists of 7.1 acres
(an area less than
10 acres), the transfer station is not proposed to be located in
an industrial area of 10 or more contiguous acres.
Therefore,
the siting would not qualify for the 800—foot setback contained
in the Act.
The complainants conclude that without so
qualifying, the siting violates the then applicable 1000—foot
setback contained in the Act.
(Count IV.)
Industrial Area
Complainants present their case based on exhibits and on the
testimony of expert witnesses that the character of the area
where the transfer station is to be built is not industrial since
industrial uses are not exhibited, irrespective of the zoning.
Therefore,
they argue, the transfer station is not in an
industrial area.
Allen L. Kracower,
a planning and zoning consultant,
testified on behalf of complainants that prior to November 1990
538
—7--
when
the land was rezoned by the Cook County Board for I-i
special use as a garbage transfer station,
it had been zoned R—5
single family.
He described the current surrounding uses as
institutional, consisting of a Carmelite Monastery,
a cemetery,
a
group home
for youth),
P—i public use (forest preserve),
P—2 open
space,
and P-2
(former Sexton landfill).
Oakton Community
College,
in an R—2 zoned area,
is also nearby on property south
of the former landfill property.
(Tr. at 137-140.)
Mr. Kracower
opined that the area is not an industrial area because no
industrial activity surrounds the property, and since the land is
currently vacant there is no industrial activity on the site.
(Compl.
Exh.
1.)
Mr. Kracower gave his definition of “industrial
area”
as “an area that has the physical attributes and
characteristics of industrial land use
*
*
~“
(Tr.
at 101.)
Jeanne
F.
Becker, president of Becker Associates,
a
consulting firm specializing
in solid waste planning, testified
on behalf of complainants.
She maintained that the activities
that
occur on a single property do not characterize the area;
rather, an industrial area is comprised of multiple industrial
uses in one location or a preponderance of industrial activity
and
uses
in
a
larger
area.
(Tr.
at
457.)
Therefore,
she
reasoned that the presence of a closed landfill alone,
such as
the Sexton landfill,
is not sufficient to characterize the area
as
industrial.
(Tr.
at
457;
395-400.)
She
further
maintained
that this area
is an institutional area since it is the influence
of
the
surrounding
properties
that
characterizes
the
area,
and
that
the
predominant
uses
in
this
area
are
institutional.
(Tr.
at
398.)
Respondent asserts that the transfer station is located in
an
industrial
area
of
10
or
more
contiguous
acres,
by
virtue
of
the fact that the Cook County Zoning Board of Appeals’
(ZBA)
and
the Cook County Board proceedings resulted in the rezoning of 43
acres,
including the 7.1—acre transfer station site owned by
SWANCC, to an industrial classification.
SWANCC maintains that
the transfer station site thereby qualifies for the 800 foot
setback exception of Section 22.14(a)
of the Act.
Since the
transfer station, as defined by SWANCC,
is not sited within 800
feet of any residentially zoned property, SWANCC maintains that
the station is not proposed to be built in violation of Section
22.14 of the Act.
Respondent presented exhibits and testimony,
including that
of Devin Moose,
Vice—President, Environmental Permitting and
Planning, Patrick Engineering, and Steven Lenet, principal
planner and owner of Lenet Design Group,
and William Abolt,
Executive Director of SWANCC.
Mr. Moose testified that,
in his opinion, an industrial area
includes those areas that are zoned for industrial uses or those
areas that have industrial activities on them.
(Tr. at 1267.)
0
~2-0539
—8—
Mr.
Lenet opined that the SWANCC property is an industrial
area of
10 or more contiguous acres.
He based his opinion on the
fact that the zoning process in Cook County is a legislative
process, and that the ZBA “made specific findings that the 43
acres should be appropriately zoned I—i”.
(Tr.
at 682.)
He also
stated that the ZBA amended the comprehensive plan for Cook
County for the 43 acres to reflect industrial uses for the
subject property.
(Tr at 683.)
In making its findings regarding
the subject property, the ZBA specifically considered the
“ejxisting
uses of property within the general area in question”
(Resp.
Exh.
12 at 17), and found:
The zoning of nearly all the surrounding territory in
open space,
institutional or industrial
(the landfill)
categories results in a long term commitment of the
surrounding property to uses with which the proposed
publicly operated waste management facility and public
office building would be compatible.
*
*
*
In all, the property is unsuitable for the zoned
residential use yet very suitable for the proposed
zoning and special use.
(Resp.
Exh.
12 at 19.)
SWANCC therefore submits that both the ZBA and respondent’s
witnesses examined the existing uses of the property and
concluded that the area is compatible with the existing
neighboring uses and is best utilized as an industrial area,
not
a residential
area.
SWANCC also observes that its property was zoned as I-i
under the Cook County Zoning Ordinance.
That ordinance
specifically provides that lands zoned in an industrial district
are also to be considered in an “industrial area”:
The industrial district regulations are intended to
govern the location,
intensity, and method of
development of the industrial areas of Cook County.
The regulations are designed to provide for the
grouping together of industries that are compatible to
one another and that are not objectional to the
community as
a whole.
The regulations preserve lands
for industrial and allied uses and prohibit the
intrusion of residential and other noncompatible uses
into the industrial area.
(Section 6.0,
Purpose,
Cook
County Zoning Ordinance,
1976,
as amended, Resp.
Exh.
1.)
The Board observes that testimony and exhibits indicate a
clear intent by the ZBA and the Cook County Board not only to
give the 43
acres
in question an industrial zoning
classification,
but also to give itcharacterization as an
0
L~2-Q5L~.O
—9—
industrial area.
While the ZBA’s and the Cook County Board’s
industrial area characterization is not controlling,
such
characterization certainly deserves considerable weight in an
interpretative context.
Moreover, we see no reason to believe
that the legislature had anything different in mind in its use of
the
term “industrial area” than does the ZBA and Cook County
Board.
Therefore, the Board finds that the 43- acre area is an
industrial area within the meaning of Section 22.14
of the Act.
Consequently,
the 800-foot setback is the appropriate setback for
the transfer station at issue.
We now turn to the issue of
whether the transfer station is in compliance with the 800-foot
setback.
Setback Violation Allegations
(Counts
II,
III, and IV)
In addressing this issue it is necessary to first define the
transfer station site.
The definitions of “site”
in the Act and
applicable Board regulations are as follows:
“SITE” means any location,
place,
tract of land,
and
facilities,
including but not limited to buildings,
and
improvements used for purposed subject to regulation or
control by this Act or regulations thereunder.
(Section
3.43
of the Act.)
“SITE” means any location, place or tract of land used
for waste management.
A site may include one or more
units.
(35 Ill.
Adm.
Code 807.104.)
In addition, the definition of transfer station includes
“site”:
“TRANSFER STATION” means a site or facility that
accepts waste for temporary storage or consolidation
and further transfer to a waste disposal, treatment or
storage facility.
*
*
*
(Section 3.83 of the Act.)
Des Plaines
is correct in observing that the Rezoning and
Special Use Ordinance indicates that the whole 43 acres were
reclassified “for a waste transfer station for the packaging and
processing of solid waste within a wholly enclosed building”.
(Exh.
B to the Complaint.)
Des Plaines is further correct in
observing that parts of the full 43 acres are located less than
800 feet from residential property.
From these two observations,
Des
Plaines would have us conclude that development of a transfer
station anywhere within the full
43 acres
is prohibited.
The Board cannot accept this argument.
The transfer station
as proposed by SWANCC and permitted by the Agency is limited to
7.1
acres
of the larger 43 acres; all of the 7.1 acres are
01L!.2-05L~i
—10—
located beyond the 800-foot setback distance
(Joint Exh. 2)~.
It
is this 7.1 acres that is clearly the transfer station site as
referenced in the Act.
The
ZBA’s and Cook County Board’s zoning
authority notwithstanding,
those bodies do not define what
constitutes a site;
that is determined pursuant to the Act and
Board regulations.
The ordinance indicates that the Cook County
Board understood that the transfer station would be built
somewhere on the 43 acres.
However,
the entire
43 acres were not
permitted for the development of a transfer station.
It makes no
difference that SWANCC sought and achieved rezoning of 43 acres
of its holdings related to its purpose of establishing a waste
transfer station on the 7.1 acres.
It has not been shown that
SWANCC intends to use the entire 43 acre site for the transfer
station; rather SWANCC intends to use the 7.1 acres permitted by
the Agency for development of a transfer station.
In fact,
SWANCC would be prevented here from using areas
in addition to
those permitted by the Agency for development of a transfer
station.
On the related issue of the proper measuring points for the
setback and whether or not the administration building
is
included in the transfer station site,
the Board finds that the
setback should be measured from the boundary of the 7.1—acre
transfer station site permitted by the Agency.
Since the
administration building is not included in that 7.1-acre site,
(See, Abolt testimony,
1041—1042;
1051—1052)
and may not be used
as part of the transfer station operations pursuant to the
developmental permit,
it not relevant that the administration
building is closer than 800 feet from residentially zoned
property6.
The Board disagrees with respondent’s witnesses that propose
measuring solely from the transfer station building or nearest
structure within the 7.1 acres
(Tr.
at 1064; 714—716), finding
that improvements outside of the transfer station building, but
still located in the permitted area around the building, are
included in the transfer station site.
This
is consistent with
the definitions of “site” and “transfer station” quoted above.
Therefore, the correct measuring points are from the property
~ “The approximately 7.1 acre site referenced
in the
Development Permit Application
is located less than 1000 feet,
but
in excess of 800 feet from the nearest property zoned for
primarily residential uses.”
(Joint Exh.
2 at 3.)
6
We are not here deciding that a facility needs to be
permitted in order to qualify for the setback.
See, Dimaggio
V.
SWANCC
(January 11,
1990), PCB 89-138,
107 PCB 49.
The facts of
this case indicate that the transfer station is permitted and
that all “operating facilities” are included in that permitted
area.
01
L~-05L~2
—11—
line of the residential area to the boundary of the permitted
area.
The Board accordingly finds that complainants have failed to
prove that the transfer station site is located closer than 800
feet from the nearest property zoned for primarily residential
uses.
The last issue we determine is whether the transfer station,
consisting of only 7.1 acres,
is not proposed to be located in an
industrial area of
10 or more contiguous acres,
and thereby does
not qualify for the 800-foot setback contained in the Act.
The
Board finds that
a plain reading of Section 22.14 indicates that
the entire industrial area must consist of
10 or more contiguous
acres, not that the size of the transfer station site alone must
be 10 or more contiguous acres.
The Board does not find
complainants arguments persuasive here.
Based on the above,
the Board finds that complainants have
failed to prove that respondent’s siting of the proposed transfer
station violates Section 22.14
of the Act.
This action is
accordingly dismissed.
This opinion constitutes the Board findings of fact and
conclusions of law in this matter.
ORDER
The enforcement action filed by City of Des Plaines, Gail
Papasteriadis,
and Gabriel and Linda .Gulo is hereby dismissed.
IT IS SO ORDERED.
Section 41 of the Environmental Protection Act,
415 ILCS
5/41
(1992), provides for appeal of final orders of the Board
within 35 days.
The Rules of the Supreme Court of Illinois
establish filing requirements.
(See also 35 Ill. Adm. Code
101.246, Motions for Reconsideration.)
I, Dorothy N.
Gunn,
Clerk of the Illinois Pollution Control
Board,
hereby certify that the above opinion and order was
adopted on the
~
day of
____________________,
1993, by
a vote of
_____________.
Dorothy N. G~n, Clerk
Illinois Po~utionControl Board
U! L~.2-O5t~3
