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 BERGBOWER,
TIM MC DONALD,
GLORIA MC DONALD,
KENNY BERGBOWER, CHUCK BERGBOWER,
)
JIM DHOM, CLOYCE BUNTON,
LARRY CASEY,
BILL MENKE, JOE SCHACKMANN,
KEITH
SCHACKMANN, BRYAN BERGJ3OWER,
LISA
BERGBOWER, AUDREY MENKE, SUSAN BERGBOWER,
)
CHRISTINE LITZELMAN,
ANDY DHOM,
SHARON DHOM,
ED YAGER, CAROL YAGER,
DEBBIE YAGER,
GENEVA DHOM,
TERESA DHOM,
BRIAN DHOM,
GENE SCHACKMANN, JANE CASEY
)
and
A.C.
DHOM,
Petitioners,
v.
)
PCB 87—76
JASPER COUNTY,
ILLINOIS and
LENA RICHARDSON and BERGBOWER
)
LANDFILL,
INC.,
Respondents.
CONCURRING OPINION (by B. Forcade and J.D. Dumelle):
While we agree with the outcome and rationale expressed by
the majority that Jasper County was without jurisdiction,
we
would have also addressed
in the Opinion the effect of the
tie
vote by the county board.
At the conclusion of the public hearings before
the county,
and post—hearing receipt of public comment,
the County Board met
on April 28,
1987,
to consider their
action.
The official
minutes of that meeting (County Record, Volume B,
p.
221),
provide the following description:
The
meeting
was
brought
to
order
by
chairman
Kepley,
then
turned
over
to
States
Attorney James
Tomaw.
Mr. Tomaw explained the
Board
was meeting to discuss testimony
in the
Bergbower
Landfill
Hearing.
He
then
in-
structed Chairman Kepley
to
read
to
the Board
the
seven
criteria
the
Board
can consider
in
this matter.
85—181
—2—
The
States
Attorney suggested
Mr.
Kepley
read
each
criteria,
ask
for
discussion,
then
call
for
a vote
from
the
Board
if
they agree
this criteria
has,
or
has
not been met.
The
Board decided
to go
through all the criteria,
then make their decision.
After
much discussion,
a motion was made
by McClure
to deny the landfill expansion, due
to
not
meeting
criteria
#1
and
#5.
This
motion was seconded by Johnson.
Those casting
yea
votes
were:
Kerner,
Johnson,
McClure,
Ochs,
Geier.
Those
casting
nay
votes
were:
Griffith,
Walden,
Michl,
Cunefare,
Trimble.
Kepley cast an abstain vote.
The
Chairman declared
a
tie
vote.
The
motion did not carry.
On May 13,
1987, the County Board again considered this matter.
The official minutes
(County Record,
Volume
B,
p.
222)
provide:
Rosemary Bergbower
came before
the
Board
speaking
for
her
family and neighborhood con-
cerning
the
tie
vote
for
approval
of
the
Bergbower
Landfill.
She
asked
the
Board
to
re—consider and vote again
on this issue.
Keith
Schackmann spoke
to
the Board
with
his concerns on the landfill
issue.
He
asked
the
Board
to
vote
again
and
consider
the
witnesses
and
testimony
presented
at
the
hearing.
Mr.
Kepley
reminded
the
Board
of
their
tie vote
concerning
the landfill
and that
if
no
further
discussion,
or vote
would
be
held
today,
the tie vote will stand.
The Board did
not
want
to
vote
again
so
the
vote
of
the
April meet will
stand.
The official minutes show that all eleven members were present at
each meeting.
The Citizens first
argue that the action of the County Board
was
a “final decision”
(Pet.
Br.,
p.
13)1,
and that such decision
should be construed
as
a denial of the application under
the
theory of Committee for
a Rickel Alternative
v. City of Linden,
214 N.J.
Super.
631,
520
A.
2d 823
(1987).
Neither briefs nor
arguments were provided by the other parties
to the proceeding.
85—182
—3—
The statutory provisions governing action by the County
Board are found at Section 39.2
(e), which provides:
e.
Decisions
of
the
county
board
or
governing body of the municipality are to
be
in writing, specifying
the reasons for
the
decision,
such
reasons
to
be
in
conformance
with
subsection
(a)
of
this
Section.
In granting approval
for
a site
the county board
or governing body of the
municipality
may
impose
such
conditions
as
may
be
reasonable
and
necessary
to
accomplish
the purposes
of
this Section
and
as
are not inconsistent with regula-
tions
promulgated
by
the
Board.
Such
decision
shall
be
available
for
public
inspection
at
the
office
of
the
county
board
or
governing
body
of
the
munici-
pality
and may be copied
upon payment of
the
actual
cost
of
reproduction.
If
there
is
no
final
action by
the
county
board
or
governing
body
of
the
munici-
pality
within
180
days
after
the
filing
of
the
request
for
site
approval
the
applicant may deem the request approved.
The only appellate court case
to directly interpret this
section is the second district’s opinion in McFlenry County
Landfill,
Inc.
v. PCB,
154 Ill.
App.
3d 89, 506 N.
E.
2d 372
(1987)
(hereinafter,
“McFlenry County”)
In addressing
the “final
action” concept of the statutory language,
the court stated:
Landfill next argues that it was entitled
to
deem
its
site
approved
because
the
county
board
failed
to
take
“final
action”
on
its
request within 120 days of filing, as required
by Section 39.2(e)
of the Act.
(Ill.Rev.Stat.
1983,
ch.
111—1/2,
par.
1039.2(e).)
Landfill
admits
that
the county board
denied
site ap-
proval
114
days
after
the
initial
filing
(on
March
20,
1985),
but contends
that
the order
was
not
“final”
because,
on
review,
the
PCB
held
that
the
wrong
evidentiary
standard
had
been used and that
it therefore had “no proper
subject
for
review
before
it.”
By
the
time
the PCB
remanded
the case
to
the county board
for a new vote,
the initial 120—day period had
expired,
and
Landfill
argues
that
the
county
board’s subsequent decision therefore was un-
timely.
85—183
—4—
Again,
we must look
to
the legislature’s
intent
(Maloney
v.
Bower
(1986),
113
Ill.2d
473,
479),
and
the
purpose
the
statute
is
designed
to
serve
(Benjamin
v.
Cablevision
Programming
Investments
(1986),
114
Ill.2d
150, 157)
when interpreting its language.
The
legislature
did
not
vest
the
county
board
with
the
authority
to
finally
deny
site
approval,
but
instead
allowed
an
applicant
to
appeal
a
county
board’s denial
to
the PCB.
(Ill.Rev.—
Stat.
1983,
ch.
111—1/2,
par.
1040.1.)
We
therefore
conclude
that
the
“final
action”
which a county board must take within 120 days
of
filing
need
only
be
sufficiently
final
to
justify
an
appeal
to
the
PCB.
The
county
board’s
March
20,
1983,
order
clearly
denied
site
approval
and
had
the
legal
effect
of
precluding
Landfill
from
obtaining
a
permit
unless
it
filed
a
timely
appeal
with
the
PCB.
Ill.Rev.Stat.
1983,
ch.
111—1/2,
pars.
1039.2(f),
1040.1(a);
see
Port
of
Boston
Marine
Terminal
Association
v.
Rederiak—
tiebolaget
Transatlantic
(1970),
400
U.S.
62,
71,
27
L.Ed.2d
203,
210,
91
S.Ct.
203,
209
(an
administrative agency’s
action
is
“final”
for
appeal
purposes
when
review
will
not disrupt
the
orderly
adjudication
process
and
legal
consequences
will
result
from
the
agency’s
action).
It
is clear that the Jasper County Board’s actions on April
28,
and May 13,:
(1) were within the statutory deadlines for action,
(2) concluded
the County Board’s adjudicative process such that
an appeal would not be disruptive,
and
(3)
that legal
consequences would result.
Therefore the County Board took
“final action” within the statutorily mandated timeframe and the
landfill approval does not issue by operation of law.
Simply because the County Board took final
action, does not
mean the County Board reached a decision.
In Lambros
v. Young,
145
F.
2d 341
(1944),
the United
States Court of Appeals for the
District of Columbia addressed
the effect of
a one—to—one tie
vote by the Board of Commissioners on
a liquor license matter:
It
is argued
on behalf of
the Commissioners
that
we
should
read
into
this
statute
the
judicial
rule which requires the affirmance of
the judgment or order of a trial court when an
appellate
court
is evenly divided.
But
this
rule
is
not
applicable
to
this
case
because
the
statute
requires
the
Commissioners
to
reach
a
decision
on
questions
of
fact.
A
85—184
—5—
decision
involves
reaching
a
conclusion.
Where
no
conclusion
is
reached
nothing
is
decided.
Even
in
judicial
proceedings
the
action of
a
divided
court
is
not
a decision.
It does not affirm
the decision
of
the
court
below.
Instead,
it affirms the order or judg-
ment
or
decree
of
the
court
below.
This
is
not
because
the
appellate
court
has
decided
the
case.
It
is,
rather,
because
the appel-
late court has been
unable to decide
the case
and therefore cannot reverse the lower court’s
judgment
or decree.
But this kind of affirm—
ance
is
not
a
decision
on
the
facts
or
law.
Neither
does
it
indicate
an
approval
of
the
lower court’s conclusions of fact or law.
For
this
reason
the rule cannot be applied
to the
statute
in
this
case
which
requires
the
administrative
tribunal
to make
a decision on
questions of fact.
Here,
the Act requires the County Board
to make determinations on
questions of fact and
no such determinations were made.
Hence,
the
County Board did not make
a decision.
We note that the
governing statutory provision
in this case, Section 39.2
(e)
provides
in the last sentence that.
“If there
is no final
action
by the county board...the applicant may deem the request
approved.”
However,
the preceding sentences of that subsection
provide that the “decisions” of the county board are to be
in
writing, are to specify reasons, and are
to be made available
to
the public.
This implies that the general assembly made a
distinction between
“final action”, and
a “decision”.
There
is not
a large body of case law on proceedings
in
which action was taken by an administrative agency within the
default time requirements, but
a majority decision was not
reached.
The case most directly on point
is Committee for
a
Rickel Alternative v.
Linden, 520
A.
2d 823
(1987)
(hereinafter
“Linden
“).
There,
the New Jersey Appellate Court was faced
with
an appeal of a de novo determination by the City Council of
Linden
in
a
zoning
matter
which
resulted
in
a
tie
vote.
If
the
City Council decision was
not made and published within 95 days
the governing statute provided that such action would
be
construed
as affirmance of the action of an administrative subset
of the City Council.
In addressing this situation the Linden
court
stated:
Further, with exceptions requiring even
a more
substantial
affirmative
vote,
under
N.J.S.A.
40:55D—9a
municipal
agencies
must
take
all
actions
by
a
majority
vote
of
the
members
present
at
a
meeting
on
any application
for
development.
Consequently,
the
Legislature
85—185
—6—
contemplated
that
an
application
governed by
that
section
would
be
rejected
by
a
tie
vote.
We
think
that
the
same
principle
should
be
applied
under N.J.S.A.
40:55D—l7e
We
also
point
out
that
in
general
a
person
seeking
relief
from
a public
body has
the burden
to demonstrate
his entitlement
to
it.
Thus,
an
appellant
ordinarily
has
the
burden
to
show
error
in
a
judgment
under
review, Brown v. Olesky,
37 N.J.Super.
19,
25,
116
A.2d
818
(App.Div.l955),
affr’d,
20
N.J.
520,
120
A.2d
461
(1956).
Accordingly,
when
an
appellate
court
is
equally
divided
it
affirms.
See Vesley
v.
Cambridge Mutual
Fire
Ins.
Co.,
93
N.J.
323,
460
A.2d
1057
(1983).
Here,
under
EveshaTn,
Supermarkets
had
the
burden
to
convince
the
council
that
it
was
entitled
to
the
variance.
It
did
not
do
that.
*
*
*
*
In
reaching
our
result
we
have
not
overlooked
the
fact
that,
absent
written
consent
for
an
extension
from
the
applicant,
unless
the
governing
body
concludes
its
review
of
the
record
not
later
than
95
days
from
the
date
of
publication
of
notice
of
the
board’s
decision
and
renders
its
decision
within
that
period,
it
in
effect
renders
a
decision
affirming
the
action
of
the
board.
N.J.S.A.
40:55D—l7c.
We
are
satisfied
that
the
purpose
of
this
provision
is
to
require
expeditious
disposition
of
appeals
by
the
governing
body.
See
Lizak
v.
Faria,
96
N.J.
482,
492,
476
A.2d
1189
(1984).
In
this
case,
there
is
no
suggestion
that
the
council
did
not
act
in
a
timely
way.
Rather,
its
decision
was
prompt
but
the
board
was
evenly
divided.
Thus,
as
the
Legislature
did
not
say
that
unless
the
governing
body
affirms,
reverses
or
remands
the
matter
within
the
95—day
decision
period,
that
requirement
does
not
undermine
our
result.
We
believe
that
the
relevant
provisions
of
Illinois
law
are
sufficiently
similar
to
those
discussed
by
the
New
Jersey
Appellate
Court
to
adopt
its
reasoning.
Under
Illinois
law
all
questions
shall
be
determined
by
a
vote
of
the
majority
of
the
county
board
members
present.
Ill
Rev.
Stat.,
ch
34,
855
(1983).
Under
Illinois
law
the
applicant
has
the
burden
of
proof
85—186
—7—
in
a
Section
39.2
proceeding
before
the
County
Board.
East
Peoria
v.
PCB,
117
Ill.
App.
3d
673,
452
N.E.2d
1378
(1985);
E
&
E
Hauling
v.
PCB,
116
Ill.
App.
3d
451,
451
N.E.
2d
555
(1983);
Waste
Management
v.
PCB,
123
Ill.
App.
3d
1075,
463
N.
E.
2d
969
(1984);
McHenry
County
Landfill
v.
PCB,
154
Ill.
App.
3d
89,
506
N.
E.
2d
372
(1987).
Illinois
law
provides
a
remedy
in
Section
39.2
(e)
when
the
county
board
fails
to
take
final
action
within
the
statutory
deadline,
but
McHenry
County,
tells
us
that
the
action
of
the
Jasper
County
Board
was
a
final
action.
The
Act
does
not
specifically
provide
a
result
for
a
tie
vote.
Therefore
we
conclude
that
the
landfill
applicant
has
the
burden
of
convincing
a
statutorily
determined
majority
of
the
county
board
members
that
its
application
should
be
granted.
Where,
as
a
result
of
a
timely
and
proper
vote,
the
applicant
fails
to
convince
a
statutorily
established
majority
of
the
county
board
that
it
is
entitled
to
approval,
its
application
is
denied.
It
would
make
no
difference
whether
the
motion
before
the
county
board
was
a
motion
to
grant
approval
or
a
motion
to
deny
approval.
The
statute
places
the
burden
of
proof
upon
the
applicant and the county board cannot change that statutorily
established
burden
no
matter
how
the
“motion”
is
phrased.
This Board has previously considered
an appeal of
a landfill
siting approval process before
a county board, which resulted
in
a
tie vote,
in Board of Trustees of Casner Township,
et.
al.
v.
County of Jefferson,
et.
al., PCB 84—175
& PCB 84—176
Consolidated
(hereinafter
“Casner
Township”).
In
that
case,
the
county
board
met
in
a
timely
and
otherwise
proper
manner
to
consider
the
application.
Neither
approval
nor
denial
motions
received
the
requisite
majority.
One
petition
for
review
filed
with
this
Board
asserted
that
the
county
had
taken
no
action
within
the
requisite
timeframe,
the
other
petition
for
review
asserted
that
the
application
had
been
granted
by operation of
law
and
sought
review.
The
landfill
applicant
filed
a
motion
to
dismiss
asserting
that
this
Board
lacked
jurisdiction
to
entertain
review
of
approvals
granted
by
operation
of
law
The
Board
entered
an
Order
requiring
the
parties
to
brief
the
issue:
“Does
Section
40.1
(b)
convey
jurisdiction
on
the
Board
to
review
an
approval
granted
by
operation
of
law
?“.
At
no
point
in
that
proceeding
did
the
parties
address
or
did
the
Board
consider
whether
a
lack
of
a
majority
vote
in
an
otherwise
proper
and
timely
consideration
constitutes
a
failure
to
take
“final
action”.
Also,
the
Board’s
determination
in
Casner
Township
was
issued
prior
to
the
Court’s
guidance
in
McHenry
County
on
what
constitutes
“final
action”
by
a
county
board
in
a
Section
39.2
proceeding
and
must
now
be
interpreted
in
light
of
the
court’s
holding.
The
Board’s
conclusion
in Casner Township is
repeated
here,
in
its
entirety,
to
emphasize what
was
considered
and
what
was
decided
(Casner
Township,
PCB
84—175
&
PCB
84—176
Consolidated,
Order,
January
10,
1985,
pp.
6—7):
85—187
—8—
The
Board
interprets
the
language
of
Section
39.2(e)
stating
that
“the
applicant
may deem the request approved”
as meaning
that
the
applicant
may
deem
himself
to
have
the
rights
that
he
would
have
had
under
the
Environmental
Protection
Act
had
the
County
Board
actively
granted
approval——no
more
and
no
less.
Specifically,
he
has
the
right
to
proceed
to
the
permitting
process
after
submitting
“proof
to
the
Agency
that
the
location of said facility has been approved by
the
County
Board”
by
operation
of
law.
(See
Section
39(c).)
However,
there
is
no
indica-
tion
in the statutory scheme created by SB 172
that
the
General
Assembly
intended
that
the
applicant
would
obtain
greater
rights
by
a
County
Board’s
inaction
than
he
would
have
had
by
virtue
of
an
active
approval.
Specifical-
ly,
there
is
no
indication
that
an
approval
by
operation
of
law was
intended
to
shield
the
applicant
from the
special
third party appeal
process
established
in
SB
172.
Absent
a
compelling
demonstration
that
the
statutory
language
requires
or
the
General
Assembly
intended
that
“deemed
approved”
requests
be
treated
as
different
from
active
approvals,
the
Board
cannot
extinguish
the
third
party’s
statutory
right
to
appeal
in
Section
40.1(b).
The
Board
does
not
find
Respondent
Southern
Illinois’
emphasis
on
the
word
“grant”
or
argument
about
the
omission
of
a
special
appeal
provision
for
“deemed
ap-
proved”
requests
to
be
compelling
arguments.
The Board
believes
the proper emphasis
in
the
statutory
scheme
of
SB
172
is
on
the
word
“approval”
and
that
to
“deem
approval”
is
to
deem
that
approval
has
been
granted.
The
Board
also
finds
that
a
special
provision
for
the
appeal
of
a
“deemed
approved”
request
would
be
redundant
as
the
provisions
of
Section
40.1(b)
adequately
address
both
types
of approvals.
Neither
can
the Board
find
a
legislative
intent
to
eliminate
third
party
appeals
of
“deemed
approved”
requests.
On
the
contrary,
the
Board
finds
that
there
are
compelling
arguments
for
upholding
Board
review
of
these
approvals.
The
120
day
deadline
for
a
local
body
to
act
is
an
essential
element
of
the
SB
172
statutory
scheme.
Without
a
deadline,
the
85-188
—9—
local
body could
frustrate
the entire permit-
ting
process
by
simply
not
acting,
and
the
legislative
history
shows
that
the
General
Assembly
believed
that
many
local
bodies
would
be
under
pressure
to
do
just
that.
The
“deemed
approved”
mechanism
functions
to
move
the
case
along
without
penalizing
any
of
the
parties
to
the
process
other
than
the
local
body
itself.
However,
if
Board
jurisdiction
to
review
third
party
appeals
were
disallowed
in
these
cases,
the
symmetry
of
the
SB
172
system
would
be
destroyed.
Not
only
does
this
create
the
spectre
of
manipulation
of
the
process
and
third
party’s
rights
by
the
local
body,
it
would
also
produce
a
situation
in
which
the
site
suitability
which
was
of
fundamental
concern
to
the
General
Assembly
could
never
be
reviewed
or
assured.
This
would
certainly
be
an
absurd
consequence
in
light
of
the
elaborate
public
participation
and
review
processes
SB
172
created
to
ensure
complete
review
of
these
questions.
On
the
basis
of
the
foregoing
discussion,
the
Board
finds
that
it
does
have
jurisdiction
to
hear
this
appeal
pursuant
to
Section
40.1(b).
Respondent
Southern
Illinois’
Motion
to
Dismiss
the
Appeal
is
hereby
denied.
Since
the
Board
in
Casner
Township
did
not
make
any
holding
on
the
effect
of
a
non—majority
vote,
today’s
evaluation
is
not
in
conflict
with
the
actual
holding
in
that
case.
What
Casner
Township
did
hold
is
that
operation
of
law
approvals
may
be
appealed
to
this
Board
in
the
same
manner
as
a
deliberate
and
intentional
approval.
A
similar
result
was
reached
by
the
New
Jersey
Supreme
Court
in
evaluating
the
same
statute
discussed
in
Linden.
In
Lizak
v.
Faria,
476
A.
2d
1189
(1984),
the
New
Jersey
Supreme
Court
stated
at
1197:
With
respect
to
the
right
to
seek
review
of
the
statutory
grant
of
a
variance,
an
interested
party
may
appeal
to
the
governing
body
“any
final
decision
of
a
board
of
adjustment
approving
an
application
for
development.”
N.J.SA.
40:55D—17a(l).
It
would
be
illogical
to
permit
an
appeal
from
a
variance
granted
after
careful
deliberations
but
not
from
one
that
is
denied
after
equally
careful
deliberations
and
then
converted
by
statute
into
a
grant.
No
legislative
purpose
would
be
served
by
foreclosing
the
right
of
an
interested
party
to
appeal
a
statutory
85— 189
—10—
grant.
In
fact,
such
a
result
would
contravene
the
legislative
intent
by
precluding
neighbors
and
other
members
of
the
public,
who
may
have
objected
vigorously
to
the
application,
from
rightful
relief.
The
effect
of
the
grant
of
the
variance
on
the
applicant,
objectors,
and
the
municipal
zone
plan
is
the
same,
whether
the
variance
is
granted
by
an
affirmative
board
decision
or
by
operation
of
the
statute.
Consequently,
we
find
no
merit
in
the
Farias’
contention
that
a
statutory
grant
may
not
be
appealed
to
the
governing
body.
In
summary,
the
we
believe
that
a
timely
and
proper
vote
on
a
Section
39.2
landfill
approval
application,
that
does
not
secure
a
statutorily
established
majority,
constitutes
a
denial
of
the
application.
Also,
we
believe
that
when
landfill
approval
does
issue
by
operation
of
law,
that
approval
is
appealable
to
the
Board
in
the
same
manner
as
an
intentional
and
deliberate
granting
of
approval.
This
appears
to
reconcile
all
of
the
existing case law and rationale which we have been able
to
discover from any jurisdiction interpreting similar statutory
provisions.
Since
the
holding
in
today’s
case
is
that
the
County
Board
lacked
jurisdiction
to
entertain
the
proceeding
for
lack
of
required
service,
our
discussion
on
the
effect
of
a
non—majority
vote would clearly be dicta.
However, two of the last nineteen
Section
39.2
proceedings
filed
with
the
Board
(Casner
Township
and
today’s
proceeding)
have
involved
non—majority
~cisions
and
guidance appears appropriate.
~
a f
I~b
ar d
~
.D.
Dumelle,
Chairman
IT
IS
SO
ORDERED
I,
Dorothy M.
Gunn, Clerk of the Illinois Pollution Control
Board,
hereby
certify
that
the
ab9
e
Concurring
Opinion
was
submitted
on
the
‘á~
day
of
1988.
Dorothy
M.
Gunn,
Clerk
Illinois
Pollution
Control
Board
85—190
