ILLINOIS POLLUTION CONTROL BOARD
January 11, 1990
SAM D1MAGGIO, CARL PIACENZA,
DANA PIACENZA, ROBERT NIKOLICH
HOUSTOUN M. SADLER, LINDA VIJKOVICH,
and WILLIAM A. WEGNER,
Petitioners,
PCB 89—138
(Landfill Siting Review)
SOLID WASTE AGENCY OF NORTHERN
COOK COUNTY; CITY OF ROLLING
MEADOWS, A MUNICIPAL CORPORATION,
AND CITY OF ROLLING MEADOWS CITY
COUNCIL, A BODY POLITIC AND
CORPORATE,
Co—Respondents.
MESSRS. RICHARD G. FLOOD AND ANDREW T. FREUND, ZURKOWSKI, ROGERS,
FLOOD & McARDLE, APPEARED ON BEHALF OF PETITIONERS;
MESSRS. THOMAS R. BURNEY,
MATTHEW M.
KLEIN AND GLENN C. SECHEN,
SCHAIN, FIRSEL & BURNEY, LTD, APPEARED ON BEHALF OF CO-
RESPONDENT, SOLID WASTE AGENCY OF NORTHERN COOK COUNTY; AND
MR. DONALD M. ROSE AND MS. KATHLEEN ROSS, ROSE & ROSS, LTD,
APPEARED ON BEHALF OF CO-RESPONDENTS, CITY OF ROLLING MEADOWS AND
CITY OF ROLLING MEADOWS CITY COUNCIL.
OPINION AND ORDER OF THE BOARD (by B. Forcade):
This matter comes before the Board on a third-party appeal
filed September 7, 1989 by Sam DiMaggio, Carl Piacenza, Dana
Piacenza, Robert Nikolich, Houstoun M. Sadler, Linda Vukovich,
and William A. Wegner (“Petitioners”). Petitioners contest the
decision of the City of Rolling Meadows and City of Rolling
Meadows City Council (“City”), in which the City granted approval
pursuant to Section 40.1 of the Illinois Environmental Protection
Act (“Act”) ifor a regional pollution control facility. Co—
respondent Solid Waste Agency of Northern Cook County (“SWANCC”)
was the applicant to the City. Petitioners seek to have the
Board reverse the City’s decision on the basis that the City
lacked jurisdiction because of notice defects arid that the
proceedings were ~undamental1y unfair.
1 ri7—49
—2—
Procedural History
Petitioners’ third—party appeal of September 7, 1989 was in
response
to
the site location approval granted on August 8, 1989
to SWANCC by the City. Hearing
was held
November 1, 1989.
Petitioners filed their brief on November 13, 1989. Co—
Respondent, SWANCC, ifiled its brief on November 27, 1989. Co—
Respondent City also filed its brief on November 27, 1989. On
December 1, 1989, Petitioners filed two
briefs: one in reply to
SWANCC’s brief and one in response to the City’s brief.
Back ground
The applicant, SWANCC, is a municipal joint action agency,
cre~t,ed.in 1988 under Section 3.2 of the Inter—governmental
Cooperation Act. Ill. Rev. Stat. 1987, oh. 741 et seq. Its
membership consists of 28 north and northwest suburban
munic~palities, including the City of Rolling Meadows. Its
purpose is to implement a solid waste management plan in Northern
Cook County. (R. 92_94)* The City has one director on the
SWANCC Board, who may cast one vote. The City appointed its
mayor, William 3. Ahrens, to act in that capacity. (City Br. at
p. 10)
The facility proposed by SWANCC is to be located on
approximately 6.67 acres at 3851 Berdnick Street, Rolling
Meadows, Illinois. A $12 million regional transfer station is
contemplated. This property, along with another proposed site,
would be a transfer point for solid waste, which ultimately would
be compressed arid delivered to a balefill in unincorporated
Hanover Township, Cook County, Illinois. The subject property is
presently used for the packaging and transfer of the City’s
garbage and for salt storage. (R. 3, 327 & 1407)
SWANCC’s application, filed February 15, 1989, included
building and landscaping plans, architectural renderings, and
engineering and traffic studies. The structure provides for all
operations to be conducted indoors, which SWANCC believes will
minimize blowing papers and odors. (SWANCC brief at p. 3) A
negative air pressure system and charcoal filtering system are
planned to eliminate odors.
SWANCC originally proposed that the facility function as a
transfer point ~or 4 corninunities. (R. 332
&
421) As approved
by the City on August 8, 1989, the facility would be a transfer
site for up to six cormnunities. (R. 1363, 1364 & 1404)
~~itations to the record before the City will be referred to as
(R.
____
); citations to the Pollution Control Board hearing
transcript will be referred to as (Tr.
11)7—51)
—3—
Public hearings on the SWANCC application were held on May
30 and 31, 1989. The City voted to deny the application on July
25, 1989 by a 4—3 vote. (R. 1284) Pursuant to its own
procedural rules governing reconsideration, the City reconsidered
the application on August 8, 1989 and voted to approve the
application subject to modifications raised by various council
members. (R. 1362) The mayor did not vote on the matter in
accordance with the City’s standard procedures, which allow the
mayor to vote only under special circumstances.
Introduct ion
Public Act 82—682, commonly known as SB—l72, is codified in
Sections 3.32, 39.2 and 40.1 of the Act. It vests authority in
the county board or municipal government to approve or disapprove
the request for each new regional pollution control facility.
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
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 555
(Second District, 1983), aff’d 107 Ill.2d 33, 481 N.E.2d 664
(1985).
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 The Kane County Defenders, Inc. v. The Pollution
Control Board, County Board of Kane County, Illinois, Sanitary
District of Elgin and City of Aurora, 139 Ill.App.3d 588, 487
N.E.2d 743 (Second 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 vacating 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 449, 484 N.E.2d 898
(Fourth 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.
11)7—Si
—4—
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.
Browning—Ferris Industries of Illinois, Inc. v. IPCB and County
of St. Clair, Illinois, 162 Ill.App.3d 801, 516 N.E.2d 804 (Fifth
District, 1987).
Fundamental Fairness
The county board or local governing body must employ
procedures, in reaching its siting decision, which are
“fundamentally fair.” Section 40.1(a) of the Act. Due process
considerations are an important aspect of fundamental fairness.
Administrative proceedings are governed by the
fundamental principles and requirements of due
process of law. Citation. Due process is a
flexible concept and requires such procedural
protections as the particular situation de-
mands. Citation.
In an administrative
hearing, due process is satisfied by proce-
dures that are suitable for the nature of the
determination to be made and that conform to
the fundamental principles of justice.
Citation.
Furthermore, not all accepted
requirements of due process in the trial of a
case are necessary at an administrative
hearing. Citation.
Due process
requirements are determined by balancing the
weight of the individual’s interest against
society’s interest in effective and efficient
governmental operation.
Waste Management of Illinois, Inc. v. PCB, 175
Ill.App.3d 1023, 1036—37, 530 N.E.2d 682
(Second District, 1988).
Thus, the manner in which the hearing is conducted, the
oPportunity to be heard, the existence of ex parte contacts,
prejudgment
of
adjudicative facts, and the introduction of
evidence are important, but not rigid, elements in assessing
fundamental fairness.
As a starting point, each member of the county board or
gcverninq body must have an opportunity
to
review the record
before voting. McLean County Disposal Company, Inc.
V.
The
County of McLean, PCB 87—133, May 25, 1989; Ash
V.
Iroquois
County Board, PCB 87—29, July 16, 1989. Furthermore, in voting,
local authorities will not be held to be biased simply because of
a financial benefit which the county or municipality might derive
from site approval. “County boards and other governmental
agencies routinely make decisions that affect their
I 07—52
—5—
revenues....” “Public officials should be considered to act
without bias.” E&E Hauling, supra, at 481 N.E.2d 664, 667,
668.
The decision to grant or deny SB-172 siting approval has
clearly been held to be an adjudicative function and not a
legislative action. E&E Hauling, Inc. et al. v. PCB and The
Village of Hanover Park, 116 Ill.App.3d 587, 451 N.E.2d 566
(Second District, 1983); and Town of Ottawa v. IPCB, 129
Ill.App.3d 121, 472 N.E.2d 150 (Third District, 1984). In their
adjudicatory role, the decisionmakers are entitled to protection
of their internal thought processes. This principle of not
invading the mind of the administrative decisionmaker has been
articulated in Ash v. Iroquois County Board, supra in Citizens
to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971) and
in United States v. Morgan, 313 U.S. 409 (1941).
The recognized remedy for a lack of fundamental fairness is
for the Board to remand to the county board to allow them an
opportunity to cure this procedural deficiency. City of Rockford
v. Winnebago County Board, PCB 87—92, November 19, 1987. This
takes the siting decision back to the local authorities, who
pursuant to Section 39.2(a) have been given this decisionmaking
authority.
Statutory Criteria
Section 39.2 of the Act presently outlines nine criteria for
site suitability, each of which must be satisfied 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 Willowbrook Motel, su~~and 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. PCB, 116
Ill.App.3d 586, 451 N.E.2d 555 (Second District, 1983); City of
Rockford v. IPCB and Frink’s Industrial Waste, 125 I1l.App.3d
384, 465 N.E.2d 996 (Second District, 1984); Steinberg v. Petra,
139 Ill.App.3d 503, 487 N.E.2d 1064 (First District, 1985);
Willowbrook Motel v. PCB, 135 Ill.App.3d 343, 481 N.E.2d 1032
(First District, 1985); Fairview Area Citizens Task Force v.
Village of Fairview, PCB 89—33, June 22, 1989.
In this case, petitioners do not dispute the decision of
Rolling Meadows, whereby each of the criteria were found to be
107— 53
—6—
satisfied. Therefore, the Board will not review any of the site
suitability criteria. The Board’s review is limited to
jurisdictional and fundamental fairness issues raised by
petitioners.
In their petition and reply briefs, Petitioners request that
“the cause be sent back to the City of Rolling Meadows with
directions to prohibit the siting of the transfer station at its
present location.” (Pet. Br. at 39) ‘This Board will not do
so. As previously stated, if the procedures below were
fundamentally unfair, the recognized avenue of relief to be
granted by the Board is to remand to the local government. City
of Rockford v. Winnebago County Board, supra. Section 39.2(a) of
the Act specifically mandates that the local governing body shall
have the authority to make the siting decision based on statutory
criteria. The suitability criteria are not here in dispute and
the Board has no authority to prohibit the City from again
finding that the suitability criteria have been satisfied.
Section 40.1(b) allows the Board to review the decision below
upon petition by a third party but does not authorize the Board
to act as Petitioners request.
Di Sc us s ion
Petitioners raise two main arguments as to why the Board
should reverse the City’s site location approval: (1) that
Rolling Meadows lacked jurisdiction to hear the application
because statutory notice was deficient and (2) that the City’s
procedures in granting approval were fundamentally unfair.
Petitioners argue that jurisdiction was lacking because: (1) an
owner within 250 feet (the railroad) was not notified; (2)
receipts for notice were signed by other than thu record owners;
and (3) three attempts at personal service were defective.
Fundamental fairness arguments are raised with respect to (1)
alleged bias stemming from financial interests and the City’s
membership in SWANCC and (2) ex parte communications and (3) the
alleged amendment of the application. Petitioners also raise an
argument regarding locating the facility within 1,000 feet of
personal dwellings. These assertions are addressed separately
below.
Jurisdictional :ssues
Petitioners claim that the City lacked jurisdiction
because:
1. Applicant, SWANCC, did not attempt to
serve the Chicago and Northwestern
Railroad Company;
2. SWANCC gave notice by registered letters
which were not signed for by the record
owners; and
107— 5i~
—7—
3. SWANCC did not personally serve Charles
E. Neal/Charles Neal Realty Company,
Hollis M. Floberg or Palatine Welding
Company.
The notice requirements of Section 39.2(b) of the Act are
jurisdictional prerequisites to the local government’s authority
to hear a site location application. Section 39.2(b) provides as
follows:
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.
Such written notice shall also be served upon
members of the General Assembly from the
legislative district in which the proposed
facility is located and shall be published in
a newspaper of general circulation published
in the county in which the site is located.
Such notice shall state the name and address
of the applicant, the location of the proposed
site, the nature and size of the development,
the nature of the activity proposed, the
probable life of the proposed activity, the
date when the request for site approval will
be submitted, and a description of the right
of persons to comment on such request as
hereafter provided.
Issue No.. 1
—
Petitioners argue that the C&NW was entitled
to service of notice because it is an owner within 250 feet of
the proposed site, and its identity was ascertainable from the
county’s authentic tax records. Petitioner defines those records
as those which “include, but are not limited to, those records
1fl7—55
—8—
which are required or allowed to be kept by the Revenue Act of
1939.” (Pet. Br. at 8 emphasis added). Petitioner further
asserts that the owner could have been discovered readily since
the “Cook County Treasurer ~y maintain a tax map with the
permanent index numbers” (Pet. Br. at 8 emphasis added) and
such a map was available, which identified the C&NW. Also,
Petitioner notes that the “county assessor ~y maintain a cross—
index system” (Pet. Br. at 10 emphasis added) with permanent
index numbers matched with legal descriptions. Petitioner found
such a record system was kept in the assessor’s office and it
discloses the C&NW as an owner according to an index card from
there. Petitioner’s theory is that “as it is a record which is
permitted to be kept under the Revenue Act, it is an authentic
tax record of Cook County.” (Pet. Br. at 10)
The Act, as cited above, defines owners as “being such
persons or entities which appear from the authentic tax records
of the county.” As co—respondent SWANCC notes, this definition
does not result in “an infallible means for identifying property
owners.” (SWANCC Br. at 14, 15) Yet, the legislature requires
that notice be given according to these particular records. The
statutory burden is not to identify and notify every actual
current owner, although ideally this would be achieved.
The county clerk’s office maintains the county records, as
required by Ill. Rev. Stat. ch. 35, section 9. At hearing,
Barbara Gorrell identified herself as an official of the Clerk of
the County of Cook. She testified that the clerk’s office keeps
the “authentic tax records of the county” and the clerk’s records
do not reveal the owner of the railroad trackage. (R. 94 &
98). The Appellate Court, First District, 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. (citations
omitted)
Katz v. City of Chicago, 177 :ll.App.3d 305,
532 N.E.2d 322 (First District, 1988).
The Board is persuaded that this testimony refutes Petitioners’
claim regarding notice to the C&NW. Petitioners have not
demonstrated that SWANCC failed to notify “persons or entities
which appear from the authentic tax records of the county” as
required by Section 39.2 of the Act.
The Board finds that Petitioners assertion that additional
records should he searched is not in keeping with the straight—
forward, statutory directive concerning notice. The statute does
not require searches of records from the treasurer’s and
1 07—56
—9—
assessor’s offices, but, rather, the authentic tax records which,
as noted, are held by the county clerk. SWANCC’s failure to
notify C&NW is not a basis for denying the City’s jurisdiction.
Assuming for purposes of argument that notice is defective, this
is not a case “where a defective notice is exclusively the fault
of the applicant
...
(for which it should be) held to the letter
of the law regarding notice.” Everett Allen v. City of Mt.
Vernon, 71 PCB 26, 31 (PCB 86—34, July 11, 1986 emphasis
added).
Issue No. 2
—
Petitioners claim that, because eleven
registered letters sent by the applicant were received by other
than the record owner, notice was deficient and the City,
therefore, lacked jurisdiction. Petitioners question whether
applicant’s efforts at notice met the statutory requirement that:
.applicant shall cause written notice of
such request to be served either in person or
by registered mail, return receipt
requested...
Section 39.2(b) of the Act.
As Petitioners note, the Board has previously addressed this
issue. In City of Columbia, et al. v. County of St. Clair and
Browning—Ferris Industries of Illinois, Inc., 69 PCB 1 (PCB 85—
223, 85—177, and 85—220 consolidated, April 3, 1986) aff’d, 162
Ill.App.3d 801, 516 N.E.2d 804 (Fifth District, 1987), the Board
specifically found that service was not defective when someone
other than the addressee signed for and accepted the notice. The
Board feels this case is dispositive of Petitioners’ argument.
The notices were timely mailed, 26 days in advance of filing the
request (SWANCC Br. at 8), and the City’s jurisdiction is not
affected by who acknowledged receipt of notice.
Issue No. 3
—
Petitioners also allege that the City lacked
jurisdiction on the basis that Charles E. Neal/Charles Neal
Realty Company; Hollis M. Floberg; and Palatine Welding Co. were
not properly served. The record reveals the following on this
matter: (1) registered mail was sent separately to Charles E.
Neal and Charles. Neal Realty Company, but no return was made.
Personal service was made but the occupant of the premises
refused to identify himself or to sign a receipt for the
notice. (R. 8). (2) Registered mail was sent also to Hollis M.
Floberg, but a return receipt was not received from Ms.
Floberg. The notice was returned marked “refused??” and “moved
left rio forwarding address.” (R. 285) Later, Susan McCall was
served personally as a current resident of the premises. (R.
11) (3) Registered notice was sent to the post office box listed
on the authentic tax records for Palatine Welding Company.
r,.hen
no return receipt was received, Carl Piacenza, a petitioner and
vice—president of Palatine Welding Company,
was
served personally
at the company’s offices.
107—57
—10—
It is clear from the record that a diligent effort was made
to secure service of notice. Furthermore, it appears that
SWANCC’s efforts at service were, in fact, successful. Thus, the
Board rejects Petitioners’ claim that service of notice was
defective.
To accept Petitioners’ contentions would be “effectively
conferring upon absent or opposing neighbors the power to
frustrate perfection of service.
. . .“
Waste Management of
Illinois, Inc. v. Village of Bensenville,
—
PCB
____
(PCB 89—
28, August 10, 1989). The rights of third parties do not extend
this far in an SB-l72 proceeding. The above instance of a person
refusing to sign a receipt for notice does not constitute failure
of service in the context of a proceeding of this type.
Likewise, the Board finds that personal service on Susan McCall
and Carl Piacenza gave adequate notice to the third party
property owners. Timely and diligent attempts to obtain service
of notice should allow the local government to obtain
jurisdiction to decide the landfill siting application. This
standard has not been violated given the facts, here, which show
that SWANCC made multiple service attempts, at least 26 days
prior to filing its application. The Board here concludes that
the City did have jurisdiction to hear SWANCC’s application.
Fundamental Fairness
Petitioners dispute the fundamental fairness of the
procedures used by the City in reaching its decisions. The
City’s alleged unfairness relates to issues of (1) bias, as a
result of potential financial gain and of its membership in
SWANCC; (2) ex parte communications; and (3) “amendment” of
SWANCC’s application.
Issue No. 1: Bias
Petitioners charge that the local hearing was fundamentally
unfair because the City has an alleged financial interest in the
outcome. This interest is the sales proceeds from the intended
sale of city-owned property to SWANCC, so that SWANCC could
construct the transfer facility. Petitioners’ theory is that the
potential sale, which is contingent on siting approval, prevented
the City from engaging in impartial, fundamentally fair
decisionmaking. Petitioners state that the facts of E&E Hauling,
Inc. v. PCB, 107 Ill.2d33, 481 N.E.2d 664 (1985) can be
distinguished on the basis of how much more significant the
revenue would be for the City of Rolling Meadows.
The Board must reject Petitionerst contentions for several
reasons. First, any financial benefit here is not personal to
the decisionrnakers themselves. The financial benefit, which may
result, accrues to the City. As noted in the introduction above,
the Illinois Supreme Court has already concluded that such
107—58
—11—
circumstances are routine. E&E Hauling, Inc., supra. “(Tihe
board should not be disqualified as a decisionmaker simply
because revenues were to be received by the county.... It does
not seem unusual that a landfill would be proposed for location
on publicly owned property.” E&E Hauling, Inc., supra, 481
N.E.2d at 667, 668.
Secondly, the dollar amounts in E&E Hauling, Inc., supra,
are not the central focus of the Illinois Supreme Court’s
holding, as Petitioners would imply. Furthermore, even if the
measure of financial benefit were critical to the issue of bias,
Petitioners have not introduced evidence to prove that the sales
price, which according to the record has not even been
established (R. 1—5), may be a crucial part of the City’s
budget. The Board embraces the analysis of the Third District
where it stated as follows:
The plaintiffs argue that there is more bias
in this case because there is $8,000,000 at
stake here compared to $6,120,000 in E&E
Hauling. It is not the difference in money or
benefit that established a bias or predis-
position to act in a certain way.
Woodsmoke Resorts, Inc. v. City of Marseilles,
174 Ill.App.3d 906, 529 N.E.2d 274, 276, 277
(Third District, 1988). See also, Peter
Valessares et al v. County Board of Kane
County and Waste Management, PCB 87—36, July
16, 1987.
Thus, the Board concludes that Petitioners have not proved that
the City’s proceedings were fundamentally unfair due to financial
interest.
Petitioners also argue that the hearing was fundamentally
unfair because the City is a member of SWANCC and the City’s
regular attorneys advised the City in the hearing process. As
co—respondent SWANCC stated in its brief, participation in a
Municipal Joint Action Agency is explicitly authorized by
statute. Ill. Rev. Stat. oh. 127, par. 741 et seq. Also, the
Local Solid Waste Disposal Act provides for disposal of solid
waste within the local government’s jurisdictions, either
individually or jointly. Ill. Rev. Stat. ch. 85, par. 5901.1.
That the City, therefore, may participate in waste disposal with
other communities on a site within its jurisdiction is to be
expected given such legislative endorsement. The circumstances
of the Rolling Meadows site were in fact mentioned in the Senate
Debates of June 16, 1988, which are excerpted in Exhibit A to
SWANCC’s brief. Furthermore, given that the City holds only one
of 28 votes, the Board cannot accept that the City and SWANCC
interests were so overlapping that the City could not provide a
107—59
—12—
fundamentally fair hearing. The Second District has held that a
county board member, who was also the supervisor of a township
which was an objector to the landfill siting, was not unduly
biased despite the dual roles played. Or generally stated, dual
membership alone does not constitute undue bias. Waste
Management of Illinois, Inc. v. Pollution Control Board, 175
Ill.App.3d 1023, 530 N.E.2d 682 (Second District, 1988).
Similarly, the Board finds that the City’s membership in SWANCC
does not amount to bias, which would result in the City’s losing
its jurisdiction to hear a landfill siting application for land
within its borders.
As to Petitioners proposition that the City should have
retained an unrelated third party to act as hearing officer, the
Board finds no merit in this argument. The City conducted its
own hearing as Section 39.2 of the Act provides.
Issue No. 2
—
Ex Parte Contacts
(Clonsidering off—record evidence of
procedural unfairness at the county board
level applies with particular force to the
matter of ex parte contacts, which, by
definition, take place outside of the
administrative hearing and record.
E&E Hauling, Inc. et. a? v. PCB, 116
Ill.App.3d 587, 451 N.E.2d 555, 602 at note 2
(Second District, 1983)
Because the Board looks closely at the possibility and
consequences of ex parte communications, Petitioners’ allegations
are described in detail in four sections below. Statements,
which Petitioners believe are indicative of ex parte contacts,
are quoted below in their entirety from petitioners’ brief.
Later, respondents briefs and the record are referenced in order
to more fully develop the issues raised by Petitioners.
(1)
Petitioners ask the Board to infer that since, on July
25, 1989, the City voted to deny SWANCC’s application, and then,
on August 8, 1989, the City voted to approve the application, the
facts “strongly suggest that ex parte contacts occurred between
SWANCC and the City.” (Pet. Br. at 27).
(2)
Petitioners assert that the following two statements at
the August 8, 1989, City Council meeting suggest ex parte
communications. (Where council members’ names are used, they
will be prefaced by “Councilman” or “Alderman.”)
Councilman William Ball’s statement:
107—60
—13-
So I was stuck in a situation where we have to
find a solution, but I don’t want this to
stick the community and we came up with a
proposal of
——
a proposal was made for six
communities and I sat and I talked with the
business community, I talked with Mr. Baigh
and talked with Mr. Katlin*, and we all went
through everything that has gone on. And you
know each one of those two gentlemen had the
courage to listen to the arguments being made,
each of them uses common sense, definitely
they both used a lot of critical thinking,
there are probably a lot of nights that they
didn’t sleep thinking through this proposal
and I am sure along with several other members
of the city council. And both of them came in
the direction of compromise.
(Emphasis
added.) (R. 1387) (Pet. Br. at 27).
Petitioners raise questions as to (1) who made the above
referenced proposal reducing the number of communities to be
served and (2) how the City knew SWANCC would accept the
reductions.
Councilman Menzel’s statement:
The other thing that I am a little bit upset
about is the compromise that went on and I
didn’t know about, other than (Councilman) Bob
Taylor calling me and (Councilman) Ball and
having some discussions on it. I was kind of
left out of the process and I kind of take
some offense to it. I wasn’t brought into
that process in terms of evaluation of the
compromises, the internal process that went
through. I guess there is no use of my
worrying about that now, but I think it would
have been nice to be up front with me
——
well. (R. 1396) (Pet. Br. at 28).
Petitionet-s assert that the compromise referred to by
Councilman Menzel must have been between the council members and
SWANCC and not among the council members alone.
(3)
Janet DiMaggio, testified at hearing regarding
conversations she had with two council members after the August
*
Spelling of this name appears to vary according to phonetic
interpretation. Katlin is used at R. 1387 and Catelain is used
in the PCB hearing transcript referred to below.
107—6 1
—14—
8, 1989, meeting. Mrs. DiMaggio testified as follows with
respect to Councilman Ball:
Q. Did (Councilman) Ball tell you what he
talked about with Mr. Catelain?*
A. Yes, he did.
Q. What did he say?
THE WITNESS: He told me that he told Mr.
Catelain* that they had the votes to pass the
transfer station, that (Councilman) Taylor
would make the motion and that he would second
it. (Tr. 71) (Pet. Br. at 28)
Concerning Councilman Menzel, Mrs. DiMaggio testified:
Q.
What did you say to Councilman Menzel and
what did Councilman Menzel say to you during
your conversation of October 31st 1989?
A. He told me that, which I knew, that he
was subpoenaed but it was quashed; that he
felt that he was probably being subpoenaed
because of his statement about back door
politics that he made during the August 8
meeting.
He said that statement referred to the meeting
that Mayor Ahrens had with Alderman Taylor and
Alderman Ball immediately before the meeting
of the reconsideration vote occurred. (Tr.
74—75) (Pet. Br. at 29)
Petitioners claim that the above circumstances and record
support a finding that approval was granted due to ex parte
contacts and “the City’s secret meetings” (Pet. Br. at 29) and
that “Petitioners did not have a chance to counter the input made
by SWANCC, and SWANCC was able to change the City’s collective
mind.” (Pet. Br. at 29.) Petitioners conclude that the
proceedings were thus fundamentally unfair.
(4)
Petitioners next argue that the alleged fundamental
unfairness was compounded by the hearing officer’s and Board’s
decision denying the deposition of the mayor and council members
*
Catelain is the spelling found in PCB hearing transcript and
refers to a founding member of a local citizen’s group. See Tr.
at 63.
107—62
and by the hearing officer’s denial of Petitioners calling the
mayor and councilmen as witnesses at hearing. This Board fully
addressed the matter of deposing the mayor and council members in
its Order of October 27, 1989. The Board pointed out that the
Petitioners could pursue other means of developing its ex parte
contacts arguments, such as interrogatories. The Board here
fully rejects Petitioners’ comments in its brief at page 33
claiming that time constraints prevented the use of
interrogatories, and that “the use of interrogatories, as a
practical matter, would be like issuing a road map to the City.
It would allow the City to coordinate their stories and present a
unified front.” The Board also notes that Petitioners rejected
the City’s suggestion that SWANCC officials could provide the
same sought-after information, if such existed. This part of
Petitioners’ fundamental fairness argument will not be reviewed
further.
Respondents argue that the SWANCC application was revisited
on the City’s own motion and initiative pursuant to the City’s
own procedural rules. Co-respondent SWANCC urges the Board to
consider the above statements of Councilman Ball and Councilman
Menzel in context. SWANCC points out that Mr. Baigh and Mr.
Catelain*, referred to by Councilman Ball, are, respectively, a
local business owner, who spoke in opposition of the application
at the May 31, 1989 hearing, and the leader of a citizens group,
who opposes the siting. (R. 1062 and Tr. 63 & 66). SWANCC
argues that the only ex parte contacts which were proved are
those by the local opposition, including Mrs. DiMaggio, and not
by SWANCC. Further, SWANCC also asks the Board to consider the
comments of Alderman Werling, Alderman Couve, and Alderman
Jacobsen concerning extensive phone calls from their constituents
(including a violent threat) in opposition to the landfill and
considerable misinformation disseminated by the citizens group.
(See SWANCC Br. at 31 citing R. 1323—1328, 1392—93, 1398).
SWANCC also directs the Board’s attention to comments of
Councilman Menzel in the record. Councilman Menzel praised
Councilman Taylor’s origination of many of the restrictions
made. Councilman Menzel also noted that Councilman Ball made
other changes and that Councilman Menzel, himself, initiated one
accepted modification (P. 1374—79).
Conclusion
First, the Board finds the possible inference of ex parte
contacts on the basis of a change in the City’s vote to be an
inadequate basis for finding that ex parte contacts took place.
Given the lack of evidence and the fact that the City of Rolling
*
Spelling according to PCB nearing transcript.
107—63
—16—
Meadows reconsidered its decision according to its own procedural
rules, the Board will not infer that ex parte contacts of a
fundamentally unfair nature must have occurred.
Second, ex parte contacts have not been shown to have
occurred with SWANCC based on the above quoted statements of
Councilmen Ball and Menzel and Mrs. DiMaggio. Councilman Ball’s
statement only suggests ex parte contacts with the opposition.
Councilman Menzel’s statement refers to discussions among council
members, as does Mrs. DiMaggio’s statement. The mere suggestion
of an improper contact does not constitute proof that it
occurred.
The Board recognizes that ex parte communications may
certainly arise in the SB—l72 context. However, petitioners must
also prove that ex parte contacts occurred which resulted in
prejudice to Petitioners. Any ex parte communications,
demonstrated in this record to the Board, were in opposition of
the siting and would have operated, if at all, on behalf of
Petitioners. If ex parte contacts with SWANCC may have occurred,
the prejudicial effect and the useful purpose of remand should
have been shown by Petitioners.
The Second District decision in E&E Hauling, Inc., supra,
which was also cited by the Third District in Town of Ottawa,
supra, describes the standard by which ex parte contacts must be
evaluated. The Second District cited the following federal court
opinion for the proposition that the ex parte contacts must
seriously distort the decisionmaking process and that remand must
serve a useful purpose:
(A court must consider) whether, as a result
of improper ex parte communications, the
agency’s decisionmaking process was irrevo-
cably tainted so as to make the ultimate
judgment unfair, either to an innocent party
or to the public interest that the agency was
obliged to protect. In making this determi-
nation, a number of considerations may be
relevant: the gravity of the ex parte com-
munications; whether the contacts may have
influenced the agency’s ultimate decision;
whether the party making the improper contacts
benefited from the agency’s ultimate decision;
whether the contents of the communications
were unknown to opposing parties, who
therefore had no opportunity to respond; and
whether vacation of the agency’s decision and
remand for a new hearing would serve a useful
purpose.
10 7—64
-17—
PATCO v. Federal Labor Authority, 685 F,2d
547, 564—5 (emphasis added).
The Second District then added that “a court will not
reverse an agency’s decision because of improper ex parte
contacts without a showing that the complaining party suffered
prejudice from these contacts.” E&E Hauling, Inc., supra at 451
N.E.2d at 571.
Petitioners argue that they suffered prejudice in the nature
of a lack of an opportunity to respond to any new arguments
allegedly put forth by SWANCC, which lead to subsequent site
approval. There is no evidence of any arguments put forth by
SWANCC through ex parte communications. The record shows that
the City’s hearings were well attended and much public comment
was made. Petitioner Sadler, in fact, testified at the Board’s
November 1, 1989 hearing that he addressed the City Council for
one hour and ten minutes on May 31, 1989 (Tr. at 127). As
mentioned above, the council members entertained extensive
discussions with their constituents, including Mrs. DiMaggio.
The Board finds, therefore, that Petitioners have not proved that
ex parte contacts occurred which harmed Petitioners.
Furthermore, Petitioners have not shown what useful purpose
remand would serve, particularly in light of the City’s already
finding that all statutory criteria have been satisfied by the
applicant.
The Board finds that Petitioners have not proved that ex
parte communications took place which so harmed Petitioners that
remand to the City for a new hearing would serve a useful
purpose.
Issue No. 3
—
Alleged Amendment of the Application
Petitioners argue that Section 39.2(m) of the Act prevented
the City’s reconsideration of SWANCC’s application once the City
voted on July 25, 1989 to deny the application. The section in
question provides:
An applicant may not file a request for local
siting approval which is substantially the
same as a request which has been disapproved
pursuant to a finding against the applicant
under any of criteria (i) through (ix) of sub-
section (a) of this Section within the
preceding 2 years. (Emphasis added.)
Section 39.2(m) of the Act.
The Board rejects Petitioners’ factual conclusions and
interpretation regarding this section. There is no evidence in
the record that the applicant filed a second request.
107—65
—18—
The Board has previously approved reconsideration by the
local government. The Third District affirmed the Board’s
finding that where the county reconsidered its vote, fundamental
fairness was not violated. Town of Ottawa, 129 Ill.App.3d 121,
472 N.E.2d 150 (Third District, 1984). In that case, the court
sanctioned reconsideration, stating as follows:
The question becomes whether fundamental
fairness was violated by the allowance of
reconsideration. We believe that it was
not. It was known at all times that the
County Board proceeded under Robert’s Rules of
Order, which allows suspension of procedural
rules by a two-thirds vote. Such a vote was
taken with counsel for the municipalities
present, but not objecting on the grounds
cited above. More importantly, administrative
bodies should be free to reconsider their
decisions. This is part and parcel of the
preference for exhaustion of remedies at the
administrative level.
(Illinois Bell
Telephone Co. v. Allphin (1975), 60 Ill.2d
350, 326 N.E.2d 737.) As the Pollution
Control Board itself has recognized, “the
prejudice to the public by an incorrect
decision
***
transcends any possible pre-
judice” to the opponents. (Waste Management,
Inc. v. Board of Supervisors of Tazewell
County (1982), PCB 82—55, rev’d on other
grounds (3rd Dist. 1983), 117 Ill.App.3d 673,
72 Ill.Dec. 682, 452 N.E.2d 1378.) (Emphasis
added)
Next, Petitioners argue that reconsideration violates
Section 39.2(g) of the Act, which provides:
The siting approval, procedures, criteria and
appeal procedures provided for in this act for
new regional pollution control facilities
shall be exclusive siting procedures and rules
and appeal procedures for facilities subject
to such procedures.
As the Third District found in Town of Ottawa, su~ra, local
governments may operate according to their own procedural rules
and reconsider their decisions. The Act does not speak to every
detail of the decisionmaking process. The appeal procedures
referenced in Section 39.2(g) do not prohibit reconsideration.
As the Second District found in Waste Management of Illinois v.
PCB:
107—6 6
—19—
The Act does not provide specific procedures
for conducting the local hearing itself. It
does establish procedures for the application
process and for standards which must be
applied. The language of Section 40.1(a)
recognizes that specific procedures as to the
conduct of the local hearings may be estab-
lished by a county board and also requires
that those procedures be fundamentally fair.
Thus, the Act does not prohibit a county board
from establishing its own rules and procedures
governing conduct of a local siting hearing so
long as those rules and procedures are not
inconsistent with the Act and are funda-
mentally fair.
Waste Management of Illinois v. PCB, 175
Ill.App.3d 1023, 530 N.E.2d 682, 692—93
(Second District, 1988) (emphasis added).
Petitioners’ last argument is that improper amendments were
made to SWANCC’s application in violation of Section 39.2(e) of
the Act. That section provides that:
At any time prior to completion by the
applicant of the presentation of the
applicant’s factual evidence and an oppor-
tunity for cross—questioning by the county
board or governing body of the municipality
and any participants, the applicant may file
not more than one amended application upon
payment of additional fees pursuant to sub-
section (k); in which case the time limitation
for final action set forth in this subsection
(e) shall be extended for an additional period
of 90 days.
Petitioners contend that the modifications to SWANCC’s original
application occurred after the close of the hearings on May 31,
1989. They also argue that these changes are actually
amendments, made by SWANCC, which were not timely made.
In contrast, co—respondents SWANCC and the City characterize
the alterations as “conditions,” specifically authorized by
Section 39.2(e) of the Act, which were initiated and authored by
various council members, particularly Alderman Taylor. -This, in
fact, is what the record supports. The various modifications are
referred to in the record as being restrictions which the council
members proposed and debated. (R. 1374—79 & 1394.) Petitioners
have failed to prove that SWANCC amended its application contrary
to Section 39.2(e).
107—67
—20—
Section 22.14: 1,000 Feet Set Back Requirement
-
Petitioners claim that, independent of jurisdictional and
fundamental fairness issues, the proposed siting would violate
Section 22.14 of the Act. That section provides that a regional
transfer station may not be located within 1,000 feet of
residentially zoned property. However, there are certain
exceptions to that rule, including one for “any non—regional
transfer facility operating on January 1, 1988 which becomes a
regional transfer station.” Section 22.14(b) of the Act.
Petitioner argues that although the City’s facility may have been
‘in use at that time*, it was not “operating” since it did not
have a permit. The Board cannot accept Petitioners’ interpre-
tation of the statutory language. The legislature did not limit
the exception to only permitted facilities. Furthermore, as
referred to earlier, co—respondent SWANCC’s brief at Exhibit “A”
excerpts part of the Senate debates of June 16 and 22, 1988,
which mention Rolling Meadows as an intended site for a regional
transfer station for which an exception to the 1,000 feet rule
should be made. The Board concludes that Petitioners have failed
to show that locating a regional transfer station at the Rolling
Meadows site would violate Section 22.14 of the Act.
This Opinion constitutes the Board’s findings of fact and
conclusions of law.
ORDER
The August 8, 1989 decision of the City of Rolling Meadows
granting site location suitability approval to Solid Waste Agency
of Northern Cook County is hereby affirmed.
Section 41 of the Environmental Protection Act, Ill. Rev.
Stat. 1987, ch. 1111, par. 1041, provides for appeal of final
Orders of the Board within 35 days. The Rules of the Supreme
Court of Illinois establish filing requirements.
IT IS SO ORDERED.
*
The record at R. 108 indicates that the City has operated its
own transfer station on the subject property since 1978.
107—68
—21—
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the above Opinion arid Order was
adopted on the
______
//~?~
day of _________________________________________________
,
1990, by a
vote of
T— c .
Dorothy M. Gu~n, Clerk
107— 69
