ILLINOIS POLLUTION COt~TROL BOARD

July 16, 1987

JOHN ASH, SR.,

Petitioner,

v.

)

PCB 87—29

IROQUOIS COUNTY BOARD,

Respondent.

SUPPLEMENTAL OPINION (by

3.

Anderson):

While I supported the majority opinion insofar as it went, I

believe that the opinion should have included a finding of lack

of fundamental fairness due to the County Board’s members’

failure to consider the evidence, even to a degree sufficient to

meet the Homefinders standard. While there is a substantial body

of case law that supports the proposition that one cannot inquire

into the mind of the decision—maker, in this case the members did

in fact put this information into the record. The County’s

admission that ten of its members neither attended any of the

hearings nor read any of the transcripts is a matter of record in

this case and should not have been ignored by the Board.

The County argues that all of its members were exposea to

enough of the evidence to warrant a finding that the County as a

whole “considered” the record. In support of this contention,

the County asserts that all of the members who voted considered

the evidence because each received: 1) letters from Ash and his

associate Mike Watson discussing their rationale for why the

application should be granted, 2) legal briefs submitted by Ash’s

counsel and counsel for a group of citizens who objected to Ash’s

application, and 3) a 1 1/2 hour, point—by-point briefing on the

resolution drafted by the committee. Board R. at 194—196.

Central to this issue is the definition of “consider”. It

is defined in Black’s Law Dictionary (1979) as:

To fix the mind on, with a view of careful

examination; to examine; to inspect. To

deliberate about and ponder over.

To

entertain or give heed to.

Given the myriad variations which can occur in landfill

siting proceedings, let alone other proceedings, I am not

asserting that this Board can or should attempt to give overall

definitive guidelines for what steps must be taken to assure that

consideration of the evidence has been undertaken. However, I

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believe that where no individual, independent scrutiny of the

evidence has occurred at all, the Board can conclusively

determine under this definition that consideration has not taken

place.

In this case, where a majority of the County Board had not

heard or read any of the evidence, relying instead on how others

felt the evidence should be weighed, I believe that the Board,

whose will is expressed by a majority, did not consider the

record. In other words, the Board did not consider the record,

it considered only what others said about the record. I also

note that the committee’s 1 1/2 hour presentation occurred just

before the vote, a vote that could not be postponed because of

the decision deadline. Thus, the County Board members had no

real opportunity, even if anyone had wanted to, to review the

record in light of what they had just heard.

I wish to emphasize that I am not suggesting that those who

briefed the record were not being conscientious. However, when

the majority of the members who cast votes openly assert that

they have no real first-hand knowledge of the evidence as

presented over nine days of hearing, it is inconceivable that

they have “examined”, “inspected”, “pondered over”, or “given

heed to” the evidence, let alone fixed their mind on the evidence

“with a view to careful examination”. The county has therefore

clearly not properly exercised it’s responsibility to give a fair

hearing in the case brought before it by Mr. Ash. The same would

hold true if the county had voted to approve.

I appreciate the difficulty that elected local officials,

who are most often part-time and are accustomed to making

decisions in a legislative mode, have in coping with quasi-

judicial, record—based mandates. However, in the unique S8l72

proceedings, the courts have consistently ruled that the county

and municipal boards cannot use their traditional way of

interacting legislatively with each other, with the public, or

with their committees.

The court has held that both the hearings and the decision

are quasi—judicial, not legislative.

In the usual legislative setting, local board members are

accustomed to making their own determination as to what

information they choose to independently consider and upon whom

they choose to rely. In this case that is exactly what they

did. however, if no more is required than this in making a

quasi—judicial determination, then I see no distinction at all

regarding consideration of the record.

The Appellate Court has held that SB172 doesn’t require the

County Board members to attend all the hearings. I do not

construe the Court’s language as suggesting that the board

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members can totally rely on a minority of county or municipal

board members designated to attend the hearings and review the

evidence (or whomever else they may designate, if they designate

anyone at all) for their information. I feel also, that such an

interpretation is contrary to the language of Sec. 39.2 and Sec.

40.1 of the Act.

I also note that, when the County Board voted, it failed to

take separate votes on each of the criteria. The Board in a

single vote, unanimously denied approval based on a rejection of

all of the criteria. In considering questions of fairness one

often needs to look at a series of events. While this vote,

taken alone, would not suggest fundamental unfairness, I feel

that this action, taken in context with the decision—making

pattern in this case, may be indicative of the deference of a

majority to a minority.

I wish also to note that it is tempting to defer to the

county’s “traditional” reliance on its committee system in this

csse. but where does this type of reasoning lead us? Does this

mean that a commission county that appoints, say, one of its

members as a “committee of one” to attend the hearings can

totally rely on that one person’s summation? Does this mean that

total reliance can be placed on a committee whose members may or

may not attend all, or even most of the hearings? Are we

suggesting that it is all right as long as a committee or someone

presents a summation, regardless of its quality? Or will we

review the quality of the summation? How could we do this

without getting into the merits?

Are we suggesting that a county or municipality that sets up

a “non-traditional” pattern to handle SB172 hearings would have a

lesser ability to defer? It has not been uncommon in S6l72

proceedings for an urban county to assign record analysis and

even recommendations to its professional staff. Whether or not

this is “traditional” for that county, can a majority of

individual board members rely solely on this staff analysis?

There are substantial dissimilarities among and within units of

local government in the manner in which they procedurally

organize and in the dynamics of their decision—making processes.

I do not believe that weight should be given to any alleged or

assumed “traditional” pattern as a basis for determining whether

there is a lack of fundamental fairness.

In this case one need only to see that the lack of any

personal record review by a majority of the County Board members,

while a preogative in a legislative context, is not fundamentally

fair in an SB172 proceeding. I believe that such a holding by

the Pollution Control Board would not only have been correct, but

also would have been helpful in giving more direction to the

counties and municipalities who are understandably having

difticulty coping with SB172.

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~?~/

~

~3oan G. Anderson

Board Member

IT IS SO ORDERED.

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control

Board, hereby ceçtify that the ove Supplemental Opinion was

adopted on the ...7/’~ day of

_______________,

l987~

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board.