ILLINOIS POLLUTION CONTROL BOARD
January
21,
1988
GERTRUDE GUERRETTAZ,
EUNICE SCHACKMANN,
MICKIE BUNTON, KATE BERGBOWER,
RUTH BERGBOWER,
SANDRA SCHACKMANN,
MADONNA SCHACKMANN, WAYNE BERGBOWER,
SCOTT BERGBOWER,
BROWNIE BERGBOWER,
ROSEMARY BERGBOWER, TOM BERGBOtt7ER,
TIM MC DONALD, GLORIA MC DONALD,
KENNY BERGBOWER, CHUCK BERGBOWER,
JIM DUOM,
CLOYCE BUNTON,
LARRY CASEY,
BILL MENKE, JOE SCHACKMANN,
KEITH
SCHACKMANN,
BRYAN BERGBOWER, LISA
BERGBOWER, AUDREY F4ENKE, SUSAN BERGBOWER,
CHRISTINE LITZELMAN,
ANDY DHOM,
SHARON DHOM,
ED YAGER,
CAROL YAGER,
DEBBIE YAGER, GENEVA DHOM,
TERESA DHOM,
BRIAN DUOM, GENE SCHACKMANN,
JANE CASEY
and A.C. DHOM,
Petitioners,
V.
)
PCB 87—76
JASPER COUNTY,
ILLINOIS and
)
LENA RICHARDSON and BERGBOWER
LANDFILL,
INC.,
Respondents.
OPINION AND ORDER OF THE BOARD
(by J. Anderson):
This matter comes
to the Board on
a June
2,
1987,
Petition
for Review filed
by Gertrude Guerrettaz, Eunice Schackmann,
Mickie Bunton, Kate Bergbower,
Ruth Bergbower,
Sandra Schackmann,
Madonna Schackrnann,
Wayne Bergbower,
Scott Bergbower, Brownie
Bergbower, Rosemary Bergbower,
Tom Bergbower, Tim McDonald,
Gloria McDonald,
Kenny Bergbower, Chuck Bergbower, Jim Dhom,
Cloyce Bunton, Larry Casey, Bill Menke,
Joe Schackmann, Keith
Schackmann, Bryan Bergbower,
Lisa Bergbower, Audrey Menke, Susan
Bergbower, Christine Litzelman,
Andy Dhorn,
Sharon Dhom,
Ed Yager,
Carol Yager, Debbie Yager,
Geneva Dhom,
Teresa Dhom, Brian Dhom,
Gene Schackmann, Jane Casey and A.C. Dhom
(hereinafter “the
Citizens”).
That petition challenges
the action of the Jasper
County Board (hereinafter
“the County”)
on an application by Lena
Richardson and the Bergbower Landfill (hereinafter “the Applic-
antt’)
for site location suitability approval for
a regional
pollution control facility under
Section 39.2
of the
EnvirOfl
mental Protection Act (hereinafter “the Act”).
A hearing was
held by the Board on July 27,
1987.
At that hearing,
the
Citizens appeared and presented one witness.
Neither the County
85—173
—2—
nor the Applicant appeared at the hearing.
On August
26,
1987,
Citizens filed
their brief.
On September
14,
1987,
the Applicant
filed
a one page letter with the Board.
The proceedings under Section
39.2 of the Act have
particular notice and service requirements which the Courts have
interpreted
as jurisdictional prerequisites.
The Citizens have
raised jurisdictional
issues as one of their arguments.
They
argue that one of
the persons required
to be served by the
statute was,
in fact, not
served.
Consequently, this Board must
first determine whether jurisdiction before the County Board was
appropriate.
The notice and service requirements at issue are
contained
in Section 39.2
(b)
of the Act, and require certain
actions by the landfill applicant prior
to filing an application
with
the County Board:
b.
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 regis-
tered
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 direc-
tion
of
the
lot
line
of
the
subject
property,
said owners
being
such persons
or entities which appear from the authen-
tic
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,
in-
cluding
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 cir-
culation published in
the county
in which
the
site
is
located.
Such
notice
shall
state the name and address
of
the applic-
ant,
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
ap—
85—174
—3.-
proval
will
be
submitted
to
the
county
board,
and
a description
of
the
right of
persons
to
comment
on
such
request
as
hereafter provided.
The provisions of
the statute relating
to notice were first
interpreted
in City of Aurora
v.
Kane County Board,
et al., 139
Ill.App.3d
588,
487 N.E.
2d 743
(1985).
In the Kane County case,
the Elgin Sanitary District (~SD) filed its application August
11,
1983.
Newspaper notice was not published until August
10.
However, as this notice stated only that the application would
be
filed “within
14 days,” ESD published
a new notice on August
20
which stated the date the application was filed,
the last date
of
the comment period, and the date of the public hearing.
The
petitioners
in that case argued that
the 14—day notice provision
of paragraph
1
of Section
39.2(b)
(individual
notice to land
owners)
applied to paragraph
2
(newspaper notice),
and that ESD
violated the notice provisions,
“thereby substantially shortening
the length of the comment period available
to the general
public.”
The Board takes administrative notice of the fact that,
had notice been published 14 days
in advance
of
a specified
filing date,
the public would have had
44 days to consider and
to
formulate written comments.
Because notice
of the filing
date,
from which the comment period ran, was not published until August
20,
the period was effectively reduced from 44
to
22 days.
The Appellate Court
for the Second District held that “ESD’s
failure to publish appropriate newspaper notice and notice
of the
date it filed
the site location request rendered the Kane County
Board hearing invalid
for lack of jurisdiction,” finding the
notice requirements
of Section 39.2(b)
to be “jurisdictional pre-
requisites which must be followed
in order
to vest the county
board with the power
to hear
a landfill proposal.”
In reaching
thisresult,
the court applied
the reasoning employed by the
Third District Appellate Court
in Illinois Power
Co.
v.
IPCB,
137
Ill.App.3d
449,
484 N.E.2d
898
(1985).
In Illinois Power,
in
a
situation where the Board
had failed
to give both
the 21—day
notice to
individuals and the newspaper notice
to the general
public required by Section 40(b),
the court found that the
statutory notice requirement were jurisdictional, given the
statues’
use of
the mandatory term “shall,” and the general
principle that an administrative agency derives power solely
froin
its enabling statute.
In Kane County,
the Second District asserted
the Illinois
Power rationale applied “even more strongly” because:
“This
broad
delegation
of
adjudicative
power
to
the county
board clearly
reflects
a
legislative
understanding
that
the
county
board hearing,
which presents
the only oppor-
tunity
for
public
comment
on
the
proposed
85—175
—4—
site,
is
the
most
critical
stage
of
the
landfill
site
approval
process.
We
find
support
for
this
view
also
in
the
statutory
notice requirements themselves, which are more
demanding
at
the
county
board
phase
of
the
process.
In view of the significance of
this
critical
stage,
we
apply the reasoning
of
the
Illinois Power Company court, which recognized
jurisdictional
safeguards
at the review
stage
of
site
approval
proceedings,
to
the
county
board
proceedings.
The
notice
requirements
contained
in
Section
39.2(b)
of
the Environ-
mental Protection Act (Ill.Rev.Stat.
1983,
ch.
111—1/2,
par.
1039.2(b))
are
jurisdictional
prerequisites which must be
followed
in order
to
vest
the
county
board
with
the
power
to
hear
a landfill
proposal
(citations omitted).
This Board first applied
the Kane County rationale
in City
of Columbia, et al.,
v. County of St.
Clair, et al., PCB 85—177,
220,
223
(April
3,
1986)
(hereinafter “Columbia”).
In Columbia,
the Board found that
a one day deficiency
in notice directi’~es
rendered
the application deficient.
The Second District has
applied
the Kane County decision to
a
factually similar situation
involving
a one—day deficiency
in notice.
Concerned Boone
Citizens
v.
M.I.G.
Investments,
144 Ill.App.3d 334, 494 N.E.2d
180
(June
4,
1986).
The Fifth District recently issued the fifth
appellate court opinion to cite this rule with approval
in
Browning—Ferris Industries of Illinois
v.
PCB
(Case No.
5—86—
0292, Slip Opinion November
18,
1987):
We
find
the
reasoning
of
Kane
County
Defenders
to
be
persuasive
and,
accordingly,
follow
the
rule
set
forth
in
that
decision.
Like
the Kane
County Defenders court,
we
find
the
14—day
pre—filing
notice
requirement
stated
in
the
first
paragraph
of
Section
39.2(b)
to
be
applicable
to
the
second para-
graph
concerning
newspaper
publication
as
well.
(Accord Concerned Boone Citizens,
Inc.
v.
M.I.G.
Investments, Inc.)
Since the notice
requirements
of
Section
39.2(b)
are
jurisdictional,
even
the
one
day
deviation
from
the
requirement
of newspaper publication
here
was not
de minimus but,
rather, rendered
the
County
without
jurisdiction
to
consider
BFI’s
request.
(Cf.
Concerned
Boone
Citizens,
Inc.
v.
M.I.G.
Investments,,
Inc.:
county
board
lacked
jurisdiction
to
act
on
request
filed
13 days after notice
of request
was
published.)
Similarly,
because
of
the
jurisdictional
nature
of
these
requirements,
85—176
—5—
the County was without authority to hear BFI’s
request
whether
or
not
actual
prejudice
was
shown
to
have
resulted
from BFI’s
failure
to
come within
the statutory
time
limits.
(Id.,
at
8)
Thus,
the law seems well established that the notice requirements
of Section
39.2
(b)
are jurisdictional prerequisites because
the
statutory language articulating
those requirements
is phrased
in
terms of
“The notice shall”.
The Illinois Power court,
and the court opinions
interpreting the notice requirements of Section
39.2
(b)
as
jurisdictional prerequisites, have all placed special emphasis on
the statutory use of the term,
“shall”.
The Board believes that
the articulated
legal theories which apply to one use of
the word
“shall”
in a Section of the Act should be equally applicable
to
other uses of the word “shall”
in the same Section.
The language
of Section
39.2
(b) states in the first sentence of the first
paragraph that,
“The
applicant shall cause written notice of
such request to
be served...”
That sentence continues by
describing who must be served with notice.
Based on the
rationale articulated
in the preceding cases, and particularly
the Browning—Ferris court, this Board holds that the obligation
to serve notice,
“on the owners of all property within
250
feet...”
of the subject property
is a jurisdictional prerequisite
and that
a one person deficiency
in notice,
just as
a one day
deficiency in notice,
is not de minimus, whether or not actual
prejudice is shown
to have resulted.
This is the rule the Board
must apply to the facts of this case to determine whether
jurisdiction exists.
The facts upon which the Citizens rely to demonstrate
a lack
of service
of notice come exclusively from the hearing before
this Board and the only witness to testify at that hearing:
HEARING OFFICER DAVIS:
Mr. Bergbower,
do
you still want to be heard?
If you would come
up
and
take
this
seat.
If
you
would
just
identify yourself and your address.
MR.
BERGBOWER:
My
name
is
Mark
Bergbower.
I live on Route Five.
HEARING OFFICER DAVIS:
In Jasper County?
MR. BERGBOWER:
Jasper County.
HEARING OFFICER DAVIS:
Illinois?
MR. BERGBOWER:
Yes.
85—17 7
—6—
HEARING
OFFICER
DAVIS:
What
would
you
like
to say?
MR.
BERGBOWER:
Well,
yes,
I
do
own
ground
250
feet
from
the landfill,
and
I
say
right here
is
my
taxes
that
show
that
I
paid
for
it,
and
I
wasn’t
notified about
it,
and
that’s about
it.
(R.
24—25)
Neither the landfill applicant nor the County Board were present
at that hearing
to question Mr. Bergbower or provide
contradicting evidence.
Therefore,
Mr. Bergbower’s statements
under oath are unrebutted.
In an effort
to gain further insight on this issue, the
Board has reviewed the record filed
by the County Board
to see
if
it sheds
light on who was served with notice and who appears on
the “authentic
tax records of the County”.
The County Board
record does contain a document described as “letter
of
notification” (County Board Record, Volume A, pp.
5—6).
Flowever,
that document leaves
the name of the recipient blank, and appears
to be included
in the landfill application as an example of the
content of
the notices
sent,
rather than as proof of service on
any one individual.
The County Board record, and the landfill
application itself,
contains no proof of service on any
landowner.
The application filed with the County Board also
contains
a document called “Location Map” (County Board Record,
Volume
A,
p.
4), which appears
to represent the location of the
facility and appears
to represent various surrounding
tracts of
land with individual names written
in the tracts.
However,
there
is no indication that the document represents
a current and
accurate copy of the “authentic tax records of the County”
(the
terminology used by the Statute),
there
is no indication of scale
on the map so that the Board might determine what constitutes
250
feet,
and many of the parcels shown on that map have the name
Bergbower written in the parcel.
Based
on the foregoing,
the Board finds that the undisputed
evidence shows that
Mr. Mark Bergbower does own property within
250 feet from the subject property,
that he does appear on the
tax
records
of the County,
and that he was not served with notice
of filing
of the landfill application.
Consequently the Board
holds that the Jasper County Board lacked jurisdiction to
entertain the proceeding, and their action on the proceeding must
be vacated.
The Board notes that on September
14,
1987,
the Landfill
Applicant filed
a letter with this Board which states
in its
entirety:
1.
The Jasper County Board’s decision should
be affirmed.
85—178
2.
Mark
Bergbower
was
present
at
the
Bergbower Landfill hearing
at the Jasper
County Court House on March
17,
1987.
He
was
seen
there
by
Tom
Shamhart
and
Dirinda Bergbower.
Assuming
that this unverified information
is accurate,
it would
at most go to
the issue of how much actual prejudice Mr.
Mark
Bergbower might have suffered by the failure of notice.
The
Browning—Ferris court informs
the Board that such an issue
is not
appropriate for consideration.
This Opinion constitutes the Board’s findings
of fact and
conclusions
of
law
in this matter.
ORDER
The action
of the Jasper County Board on the application for
landfill siting approval filed
by Lena Richardson and Bergbower
Landfill Inc.,
is hereby vacated for lack of jurisdiction.
Section 41
of
the Environmental Protection Act, Ill.
Rev.
Stat.
1985,
ch.
111—1/2, 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.
J.
D. Dumelle and B. Forcade concurred.
~I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the above Opinion and Order was
adopted on the
____________
day of
~
,
1988 by a vote
Dorothy M.
unn, Clerk
Illinois Pollution Control Board
85—179