ILLINOIS POLLUTION CONTROL
BO~4.RD
April
11,
1991
FRANK WHITLOCK, PATRICIA
)
WHITLOCK, JANET BERGMAN,
)
MARVIN SAVAGE,
SHIRLEY SAVAGE,
)
Individually and
in Their
)
Capacity as Representatives
)
of an Organization Known as
)
CONCERNED CITIZENS AGAINST
)
LANDFILL,
Petitioners,
v.
)
PCB 90—231
)
(Landfill Siting)
)
MONTGOMERY COUNTY BOARD OF
)
SUPERVISORS, ROBERT BISHOP,
)
and ARNINDA BISHOP,
Respondents.
RICK VERTICCHIO, PHELPS, KASTEN,
VERTICCHIO,
& RUYLE, APPEARED ON
BEHALF OF THE PETITIONERS; and
VAL C.
SIMHAUSER, SIMHAUSER LAW OFFICE, APPEARED ON BEHALF OF THE
BISHOPS
OPINION AND ORDER OF THE BOARD
(by J.
Anderson):
This matter comes before the Board on
a
third—party appeal
filed December
17,
1990 by Frank Whitlock, Patricia Whitlock,
Janet Bergman, Marvin Savage, and Shirley Savage individually and
in their capacity as representatives of an organization known as
Concerned Citizens Against Landfill.
Petitioners contest the
decision of the Montgomery County Board of Supervisors
(County),
in which the County granted site location suitability approval
for
a regional pollution control facility
(RPCF).
This appeal is
brought pursuant
to Section 40.1 of the Illinois Environmental
Protection Act
(Ill.
Rev.
Stat.
1989,
par. 1001 et seq.)
(Act),
Respondents, Robert Bishop and Arminda Bishop (Bishops), were
the
applicants.
Petitioners seek
to have the Board reverse the County’s
decision for the following reasons:
1)
that
the County
lacked
jurisdiction because of notice defects;
2)
that the finding of
the County that the proposed facility
is designed, located and
proposed to be operated
in such a manner that the public health,
safety, and welfare will be protected is against the manifest
weight of the evidence
(Section 39.2(a)(2)); and
3)
that the
121—47
—2--
finding of the County that the traffic patterns to and from the
facility are so designed as
to minimize the impact on the
existing flows is against the manifest weight of the evidence
(Section 39.2(a)(6)).
For the following reasons,
the Board finds
that the County lacked jurisdiction to hear this matter.
Therefore the decision of the Montgomery County Board of
Supervisors is vacated.
PROCEDURAL HISTORY
Petitionerst
third—party appeal
is
in response to the site
location approval granted on November
13, 1990 to the Bishops by
the County.
Hearing before the Board was held on February
22,
1991.
Petitioners filed
their brief on March 13,
1991 and the
Bishops filed their brief on March
19,
1991.
The County did not
file a brief.
The Bishops own property in Montgomery County which had been
used for
a sanitary landfill, during the 1980s;
however, the site
has not been used as
a landfill for several years.
On June 6,
1990, the Bishops filed an application with the County seeking
local siting approval for a landfill on that property.
The
Bishops had previously closed the landfill on that property and
plan to reopen an expanded landfill.
The new expanded facility was to operate on approximately 37
acres and would include a transfer station and recycling
center.
The facility would be located
in rural Montgomery C9unty
and would serve Montgomery County and the surrounding area.
~ (CR
5).
The application included a narrative description concerning
how the applicant would meet each of the nine statutory criteria.
A public hearing was held by the County on September
27,
1990, and the County approved siting on November
13,
1990.
On
December
17,
1990,
the Board received this appeal.
Statutory Background
Public Act 82—682,
is codified
in Sections 3.32,
39(c),
39.2
and 40.1
of the Act.
It vests authority
in the county board or
municipal government to approve
or disapprove
the siting request
for each new RPCF.
These decisions may be appealed to the Board,
which derives its authority to review the landfill site location
decisions of local governments from Section 40.1 of
the Act.
The
Board’s scope of review encompasses three principal areas:
(1)
jurisdiction,
(2)
fundamental fairness of
the county board’s site
approval procedures, and
(3) statutory criteria for site location
1
Citations to the Record before the County will be referenced
as
“CR
_______“;
citations
to the hearing before the Board will
be referenced as “Tr.
121—48
—3—
suitability.
Pursuant
to Section 40.1(a)
of the Act, the Board
is to rely “exclusively on the record before the county board or
the governing body of the municipality”
in reviewing the decision
below.
However, with respect
to the issue of
fundamental
fairness, the Illinois Supreme Court has affirmed that the Board
may look beyond the record to avoid an unjust or absurd result.
E&E Hauling,
Inc.
v.
PCB, 116 Ill.App.3d 587,
594,
451 N.E.2d
55
(2d District 1983), aff’d 107 Ill.2d 33,
481 N.E.2d 664 (1985).
Statutory Criteria
Section 39.2 of the Act presently outlines nine criteria for
site suitability, each of which must be satisfied
(if applicable)
if site approval is ‘to be granted.
In establishing each of the
criteria, the applicant’s burden of proof before the local
authority
is the preponderance of the evidence standard.
Industrial Salvage
v.
County of Marion, PCB 83—173,
59 PCB 233,
235, 236, August
2,
1984.
On appeal,
the PCB must
review each of
the challenged criteria based upon the manifest weight of the
evidence standard.
See Waste Management
of Illinois,
Inc.
v.
IPCB,
122 Ill.App.3d 639, 461 N.E.2d 542
(Third District,
1984).
This means that the Board must affirm the decision of the
local governing body unless that decision is clearly contrary to
the manifest weight of the evidence,
regardless of whether the
local board might have reasonably reached a different
conclusion.
See E&E Hauling
v.
IPCB,
116 Ill.App.3d
586,
451
N.E.2d 555
(2nd District 1983); City of Rockford
v.
IPCB and
Frink’s
Industrial Waste,
125 Ill.App.3d 384,
4&5 N.E.2d
996 (2nd
District 1984);
Steinberg v.
Petta, 139 Ill.App.3d 503,
487
N.E.2d 1064
(1st District 1985); Willowbrook Motel
v.
PCB,
135
Ill.App.3d 343,
491 N.E.2d 1032
(1st District 1985); Fairview
Area Citizens Task Force v. Village of Fairview, PCB 89—33, June
22,
1989.
Jurisdiction
The notice requirements of Section 39.2(b) are
jurisdictional prerequisites
to the local county board’s power
to
hear a landfill proposal.
The lack of jurisdiction at the county
board level made
it unnecessary to review petitioners’
other
arguments
in Kane County Defenders,
Inc.
v.
Pollution Control
Board,
139 Ill.App.3d 588,
487 N.E.2d 743 (2nd District,
1985).
In that case,
failure to publish the appropriate newspaper notice
14 days prior
to the request for site approval resulted
in the
court’s yacating the county board’s decision and the PCB decision
upholding
it.
The court applied the reasoning of Illinois Power
Company v. Pollution Control Board,
137 Ill.App.3d 499,
484
N.E.2d 898
(4th District 1985), which found that the PCB’s
failure
to publish notice as required by Section 40(a) of the Act
divested
it of jurisdiction.
The notice requirements of Section 39.2 are
to be strictly
construed as to timing,
and even a one day deviation in the
notice requirement renders the county without jurisdiction.
121—49
—4—
Browning—Ferris Industries of Illinois,
Inc.
v.
IPCB,
162
I11.App.3d 801,
516 N.E.2d 804 (5th District 1987).
DISCUSSION
Petitioners argue that the County lacked jurisdiction to
hear the application because the notice requirements of Section
39.2(b)
of the Act were not met.
Section 39.2(b)
of the Act
provides:
No later than 14 days prior
to a request for
location 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, said
owners being such persons or entities which
appear from the authentic tax records of the
County
in which such facility is to be
located; provided, that the number of all feet
occupied by all public roads,
streets, alleys
and other public ways shall be excluded
in
computing the 250 feet requirements; provided
further, that
in no event shall this
requirement exceed 400 feet,
including public
streets, alleys and other public ways.
Petitioners assert that the Bishops
failed to notify “the
owners of all property within 250 feet in each direction of the
lot line”.
Specifically, petitioners assert that Marvin and
Shirley Savage, who purchased their property from Anthony
Lei9chuh on February
28, 1989, were not notified.
(Pet.
Br.
2).
The Bishops
refuted this assertion by pointing out that one
of the notices was received by Anthony Leitschuh, who had been
the owner
of the parcel of land adjacent to the Bishops’
property.
(Resp.
Br.
p.
2-3).
Mr. Leitschuh’s name appeared in
the “collector’s book”
for the 1988
taxes due and payable in
1989.
(Resp.
Ex.
1).
The Bishops assert that as of May 7,
1990,
the collector’s book for the 1988 taxes due and payable in 1989
was the most current
record showing the owners’
names and
addresses.
(Resp.
Br.
3).
2
Petitioners brief will be cited as “Pet.
Br.
Respondents brief will be cited as “Resp.
Br.
121—50
—5—
Petitioner presented several witnesses at the Board hearing
who explained the tax cycle in Montgomery County.
There are
three cycles involved in the maintenance and processing of tax
records in Montgomery County.
(Pet.
Br.
3).
The first cycle
involves the Supervisor of Assessment.
The Supervisor assists
in
valuation and compiles information which is logged into a
computer system and manually entered
in bound volumes.
(Pet.
Br.
4).
Cycle
2 involves the County Clerk who extends the various
assessment
to each parcel of land.
The third cycle
is the actual
mailing of bills and collection of taxes which is handled by the
County Treasurer.
(Pet.
Br.
4).
Linda Bolton, who
is an employee of the Supervisor of
Assessments Office,
testified that it
is a part of her duties to
update addresses and names on the tax rolls up to 48 hours prior
to the tax rolls being sent out for billing purposes.
(Tr. 53—
54).
Thus, an address or name change can be accomplished at
almost any point
in the three cycles.
Ms. Bolton also testified that she had completed a change
card for the Leitschuh/Savage property on March
16,
1989.
(Tr.
44).
That card was also introduced into evidence.
(Pet.
Ex.
4).
The card indicates that
it
is a
“Property Transfer Record”
and that the property in the name of “Anthony Leitschuh”
is
changed to “Marvin Savage”
for the tax year 1989 payable in
1990.
The change card is a record which
is kept in the
Supervisor of Assessment’s office.
However, Ms. Bolton also
testified that the aforementioned change was logged into the
computer
record on May 24,
1989.
(Tr.
46).
Petitioner also presented,
as Exhibit
I,
a copy of the deed
for the transfer of the property to Mr. and Mrs. Savage from Mr.
Leitschuh.
That deed indicates that it was recorded
in Book 333
at page 166 on February 2~,1989.
Thus, almost one year prior
to
the preparation of the notice list by the Bishops, both the
County Clerk’s office and the Supervisor of Assessments office
had the change of ownership documented in their respective
records.
The Bishops included with the application for siting
approval a list entitled “Property Owners Adjacent to Robert
Bishop’s Property”.
(CR 12).
The list states that
it
was
“o3btained
from the Montgomery County Treasurer’s office May 7,
1990.”
(CR 12).
Mr. Leitschuh is included on that list;
the
Savages are not.
The Bishops further presented at hearing a copy
of
a page from the collector’s book for 1988 taxes due and
payable
in 1989.
That listing also indicates that Mr. Leitschuh
is the owner
of the property.
(Resp.
Ex.
1).
In addition, the Bishops elicited testimony from the County
Treasurer,
Mr. Ron Jenkins, that
it
was his opinion that the
collector’s book and the hard copy of the original tax bill were
the “authentic tax record”.
(Tr.
99).
Thus,
the Bishops argue
that the 1988 collector’s book was the authentic tax record
in
121—51
—6—
Montgomery County as of May 7, 1990 and the Treasurer’s office
is
the keeper of the “authentic tax records”.
It should be noted that a reading of the testimony presented
by Mr. Jenkins
indicates that Mr. Jenkins may have been stating
that the collector’s book for 1988 taxes due and payable
in 1989
was the authentic tax record for 1988.
(Tr. 99—100).
Mr.
Jenkins admits there may be a difference between the listings
in
the 1988 collector’s book and the ownership as of May 7,
1990.
(Tr. 101).
The Bishops did not present any evidence as to who had
prepared the list of adjacent property owners filed with the
application.
(CR 12).
In
fact,
Mr. Jenkins testified that the
list was not prepared by either himself or his office.
(Tr. 83—
84).
Petitioners point out
in their brief that “had the
respondents made inquiry of either the Supervisor of Assessments’
Office or the County Clerk’s Office based upon examination of the
tract
index,
information regarding the transfer of ownership
could have readily been obtained.”
(Pet.
Br.
6).
The issue
in this case hinges on the phrase
in Section 39.2
(b)
of the Act
“authentic tax record”.
The Bishops,
in their
brief, point out that:
This
is not a case where the siting applicants
failed to send notice,
or where the timing or
content of the notice was defective,
or where
the adjoining owner had no notice.
Instead,
the real issue here
is whether the phrase
authentic tax records’
requires a siting
applicant to look to sources other than a
county treasurer’s records,
in determining to
whom notice should be sent.
(Resp.
Br.
2).
The Bishops argue that the only reasonable meaning that can
be given to the phrase “authentic tax records”
is “those records
that must be maintained by the county treasurer, and which show
the names and addresses of the recipients of the most
recent real
estate
tax bills.”
(Resp.
Br.
2).
The petitioners, however, seem to be asserting that because
the tax preparation
in Montgomery County
is a
three cycle
process, the applicant must check with all three offices
to
receive the “authentic tax record”.
The petitioners
in their
brief state:
Each phase
or cycle
is dependent upon the
previous cycle
for much or all of its
information.
(cite omitted)
Information
regarding transfers of property are updated
121—52
—7—
continually by personnel of the Assessor’s
Office even during cycles
2 and 3
notwithstanding the Assessor’s Office duties
in cycle
1 pertaining to evaluations having
been completed.
(Pet.
Br.
4—5).
Both parties cite extensively to statutory and case law in
support of their positions.
Petitioners rely on the case law
discussed above regarding jurisdiction as well as distinguishing
this case from two previous Board decisions.
Those two decisions
are DiMaggio v. Solid Waste Agency of North Cook County,
PCB 89—
138,
(January 11,
1990)
(DiMaggio)
and Wabash
& Lawrence Counties
Taxpayers
& Water Drinkers Association
v. Wabash County, PCB 88—
110,
(May 25,
1989)
(Wabash).
In distinguishing DiMaggio,
petitioners point out that the Board relied on the County Clerk’s
testimony that the Clerk was the keeper of the “authentic tax
record”.
(Pet.
Br.
10).
In this case, according
to the
Petitioners, the testimony indicates that the tax cycle
is a
three step process.
(Pet.
Br.
11).
Petitioners state that
“lilt
has been established in the record that the authentic tax records
of Montgomery County are maintained and compiled
in a three stage
process,
involving three Montgomery County Offices having input
into the process at each of
the
three cycles.”
(Pet.
Br.’ll).
With regards to Wabash, petitioners state that:
The opinion of the Pollution Control Board
seems to indicate that the objection to
jurisdiction of the county board was denied
based upon petitioner’s failure to meet its
burden in establishing the notice due to an
adjoining landowner.
This case
is therefore
distinguishable from the case at bar
in that
adequate testimony and exhibits were presented
at hearing to establish that Marvin and
Shirley Savage were the owners of
the adjacent
property.
(Pet.
Br.
13).
The Bishops also cite to DiMaggio and Wabash
in support of
their position.
In discussing
the Wabash case,
the Bishops point
out that the jurisdiction of Wabash County was challenged
in
three
instances.
The Bishops state that
in two of the three
instances:
the Pollution Control Board looked to the
records that showed who had received the tax
bills.
When the decision of the Pollutitn
Control Board
in that same case was reviewed
and affirmed, the appellate court discussed
the notice to Trimble, and stated that
‘only
that heir was listed by name and address
in
121—53
—8—
the tax records to receive the tax statement.
(cite omitted)’.
(Resp.
Br.
9)
As previously discussed,
the Board relied on the County
Clerk’s testimony
in DiMaggio that the Clerk was the keeper of
the “authentic tax record”.
The Bishops seek to distinguish this
case from DiMaggio by stating that:
The Pollution Control Board’s opinion
in the
DiMaggio seems
(sic)
to be based on some
procedures which are unique
to Cook County or
else based on erroneous testimony by an
employee of the Cook County Clerk.
(Resp.
Br.
9).
The Bishops also cite
to several portions of the Revenue Act
in support of their position that the treasurer is the keeper of
the “authentic
tax records”.
The specific portions
of the
Revenue Act cited are Ill. Rev. Stat.
1989,
ch.
120,
pars.
657,
671, 671a,
677,
688 and 704.
In summary,
those sections
of
the
Revenue Act contain language which refers to the treasurer as
the
county collector and to specific duties of the collector.
The
duties of the county collector include requiring identification
of a taxpayer seeking to change the address where a tax bill
is
sent, recording payment “in his book”
(Resp Br.
7), and receipt
of the collector’s book from the county clerk.
The issue of what constitutes proper notice under Section
39.2(b)
is not a new one.
In the DiMaggio case,
the Board stated
that:
“The statutory burden
is not
to identify and notify every
actual current owner,
although ideally this would be achieved.”
(DiMaggio,
p.
8).
The Board,
in DiMaggio, declined to accept
the
petitioner’s definition of “authentic
tax records” which would
have defined “those records as those which
‘include,
but are not
limited to,
those records which are required or allowed
to be
kept by the Revenue Act’.”
(DiMaggio p.
7—8).
Rather,
the Board
relied on testimony by the County Clerk stating that the Clerk’s
office was the keeper of
the “authentic tax records”.
The
reliance on the County Clerk’s testimony, is supported by the
Appellate court which has held that:
an interpretation of a statute or ordinance
made by the agency or body charged with
administering the statute constitutes an
informed source of guidance for ascertaining
the intent of the lawmaking body.
(Katz
v.
City of Chicago,
177 App.3d
305,
532 N.E.2d
322
(1st District
1988)).”
(DiMaggio p.~8).
In the Wabash case, the Board
found that notice to named
party on the “authentic tax records” was sufficient pursuant of
Section 39.2(b)
of
the Act.
It should be noted that
the Bishops
121—54
—9—
assertion that the Board looked to “who had received the tax
bills”
(Resp.
Br.
9) does not fully delineate the Board’s
finding.
The persons who received notice in Wabash were the
persons listed on the tax records.
The fact that
there were
other owners not listed on the tax records did not render the
notice improper
in Wabash.
In the case at bar, the Board
is guided by its prior
decisions.
However, unlike the DiMaggio case where the
statement, made by a county official,
as to who maintained the
“authentic tax records” was made by the Clerk’s office, here two
county officials offer opinions as to what constitutes the
“authentic tax records”.
Ms. Bolton,
of the Supervisor of
Assessments office, testified as follows:
Q.
(Mr. Verticchio)
If
I would ask you to
find the authentic tax records of an owner of
a parcel of property where would you look?
A.
(Ms.
Bolton)
If you wanted the most recent
ownership,
I would suggest that you would go
to the County Clerk’s Office because that
is
where the recording of information
is
available first.
(Tr. 37).
Ms. Bolton also testified that
in her opinion the owners of the
property based on “authentic tax records” as of May 7,
1990 were
Shirley and Marvin Savage.
(Tr.
47).
As previously noted,
the
Treasurer,
Mr. Jenkins,
testified that the “authentic tax
records” were the collector’s book;
however, the Board believes
Mr. Jenkins
is referring to the 1988 “authentic tax records” and
not the “authentic tax records” as of May 7, 1990.
Thus,
the
Board must examine other portions of the record to determine
whether the Bishops compiled its list of property owners
from the
“authentic tax records”.
The Bishops have not presented any evidence as to who or how
the list of property owners was gathered except
to show that
it
correlates with the 1988 collector’s book.
The list was
not
prepared by the Treasurer’s office;
it
is not clear that the
Treasurer believed that the 1988 collector’s book was the
“authentic tax records”
as of May 7, 1990.
In
addition,
there
is ample evidence that had the applicant
checked with the County Clerk’s office or the Supervisor
of
Assessments’
office,
the owners listed
for the parcel of land
would have been Mr. and Mrs. Savage.
The Board does not accept petitioners’ inter~retationthat
the “authentic tax records”
in Montgomery County are the records
maintained by all three County Offices.
Such a result would
require an applicant to check with each office
in the County and
would
in effect require an applicant to perform a title
search.
121—55
—10—
That result would clearly be beyond the plain language of Section
39.2(b)
and this
is a result with which the Board has not found
favor.
As the Board stated in DiMaggio:
The Board finds
that Petitioners’ assertion
that additional records should be searched is
not in keeping with the straightforward,
statutory directive concerning notice.
The
statute does not require searches of records
from the treasurer’s and assessor’s offices,
but,
rather, the authentic tax records which,
as noted, are held by the county clerk.
(DiMaggio p.
8—9).
Conversely,
the Board is also reluctant to limit the meaning
of the phrase “authentic tax records”
to the collector’s
book,
kept by the treasurer,
which appears to be the Bishops’
view.
Collector’s books are completed prior
to the tax bills actually
being sent in any given year.
The books are compiled each year
and
a previous year’s books are not corrected unless there
is an
error
in where
a
tax bill
is sent.
Thus,
limiting “authen~tictax
records” to the collector’s book would mean that even in counties
where a more up to date record is available on computer or other
form,
an applicant would not need to consult this more up to date
record.
It should be noted that
it
is the County Clerk’s Office
which is required by the Revenue Act to prepare and certify the
collector’s book,
not the Treasurer.
“The county clerk shall,
annually, make out for the use of collectors,
in books to be
furnished by the county, correct lists of taxable property,
as
assessed and equalized.”
(Ill. Rev.
Stat.
1989,
ch.
120, par.
639).
The Revenue Act also states that “the county clerk
shall
deliver all such collector’s books
to the county collector of
such county, having annexed to each of such books a warrant under
the signature and official seal of the county clerk,
commanding
such county collector
to collect from several persons named in
such books,
the several sums of taxes therein charged opposite
their respective names.”
(Ill.
Rev.
Stat.
1989,
ch.
120,
par.
688).
Thus, the Revenue Act clearly establishes the county clerk
as the officer who prepares the collector’s book.
Therefore,
the
county clerk
is the appropriate official
to prepare the
“authentic tax records”.
Had the list titled “Property Owners Adjacent
to Robert
Bishop Property”
(CR 12)
been prepared by the Treasurer, or had
the Bishops presented evidence which indicated that a County
official had represented to them on May
7,
1990, that the 1988
collector’s book was the “authentic tax records”,- the Board may
have been persuaded that the list of owners was from the
“authentic tax records”.
At minimum,
the Board would have
considered the reliance the applicant had placed on the county
officials’
statements.
However,
there
is no such evidence.
In
121—56
—11—
fact,
the Bishops presented no evidence establishing how the
notice list was prepared.
In fact, there is testimony that
contradicts the proposition that the collector’s book constitutes
the “authentic tax records”.
Therefore, the Board finds that the
applicant did not properly serve notice “on the owners of all
property within 250 feet” of the Bishops’ property as appears
from the “authentic tax records”.
In DiMaggio, the Board held that the county clerk was the
keeper of the “authentic tax record”.
In this case,
the county
clerk again
is the keeper of the “authentic
tax record”,
regardless of which county official may be utilizing
it at
various times.
It
is the record maintained by the county clerk
which contains the most up to date tax listing.
The Board finds
no evidence
to the contrary,
in this case.
Finally, with regards to the notice requirements of Section
39.2(b)
of the Act, the Board will address the arguments put
forward by the Bishops that the notice was sent to the correct
address and that Mr. Leitschuh told the Savages that he had
received the notice.
Thus,
according to the Bishops,
the notice
was sufficient.
(Resp.
Br.
11).
The return receipt clearly
indicates that Mr. Leitschuh was the recipient of the notice.
Section 39.2(b)
clearly requires two types of notice.
One by
publication and one by written notice to owners of property
listed on the
“authentic tax records”.
Mr. Leitschuh was not the
owner listed on the “authentic tax records”.
The Savages were
listed on the “authentic
tax record”.
The Savages did not
receive written notice.
Sending notice
to the wrong person at
the correct address
is not sufficient.
The Savages did not
receive the notice required by Section 39.2(b).
In making its determination today,
the Board notes that the
Appellate Courts have co~~trued the notice requirements
of
Section 39.2(b) very strictly.
Even a slight deviation has
resulted in the court ruling that the local board lacked
jurisdiction.
(See Browning—Ferris Industries
of
Illinois,
Inc.
v.
IPCB,
162 Ill.App.3d 801,
516 N.E.2nd 804
(5th District)).
Therefore,
the Board
is bound by those Appellate Court decisions
to also strictly construe the notice requirements
of Section
39.2(b).
We recognize that such strict construction may be
argued as elevating form over substance, particularly where a
procedural “slip—up” results
in no prejudice
in a particular
case.
In so saying, however,
we are not suggesting
that the
circumstances here would or would not have had a different
outcome under
a less strict construction.
The remaining issues presented in this appeal regarding
criteria
2 and
6 were not argued by the parties.
Both parties
rested on the record.
Due to the Board’s finding regarding
jurisdiction, the Board will
not rule on the remaining issues.
The Board finds
that the applicant’s notice,
required by
Section 39.2(b) of the Act,
to owners of property
within 250 feet
121—57
—12—
of the proposed site was insufficient.
The Bishops failed to
provid~enotice to Marvin and Shirley Savage who were the owners
of prci~pertywithin 250 feet and who were listed on the “authentic
tax re~cords”of Montgomery County.
Therefore, the Board vacates
the th~cisionof the Montgomery County Board of Supervisors as the
county lacked jurisdiction to hear the application.
ORDER
The Board finds that the Montogomery County Board of Supervisors
1ackec~jurisdiction to hear the application for landfill siting,
becau~ethe applicant failed to provide notice to property owners
withiin 250 feet,
as listed on the County’s “authentic tax
recorc~s.” Therefore, the decision of the Montgomery County Board
of Supervisors approving the landfill siting application is
vacat~ed.
~T
IS SO ORDERED.
~.
Flemal and J. Theodore Meyer concurred.
~Section 41 of the Environmental Protection Act provides for
appeal of final Board Orders within
35 days.
(Ill. Rev.
Stat.
1989,
ch. l1l~-,par.
1041)
The Rules of the Supreme Court of
Illinois establish filing requirements.
~1,Dorothy M. Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certify that the above Opinjon and Order was
adopted on the
J/tZ
day of
___________________,
1991,
by a
vote
‘~f
7 —O
.
:ion Control Board
Illinois Pol.
12 1—58
