ILLINOIS POLLUTION CONTROL BOARD
February 19,
1987
RICK MOORE, LEONARD MORRIS
and EDITH SIMPSON,
)
Petitioners,
V.
)
PCB 86—197
WAYNE COUNTY BOARD and
)
DAUBS LANDFILL, INC.,
)
Respondents.
JAMES YOHO,
ESQ., APPEARED ON BEHALF OF THE PETITIONER;
STEPEHN SWOFFORD, ESQ., STATES ATTORNEY, APPEARED ON BEHALF OF
RESPONDENT, WAYNE COUNTY BOARD; AND
THOMAS J.
IMMEL, ATTORNEY-AT-LAW, APPEARED ON BEHALF OF
RESPONDENT, DAUBS LANDFILL,
INC.
OPINION AND ORDER OF THE BOARD (by B. Forcade):
This matter comes to the Board on a November
6,
1986, peti-
tion to contest granting
of site location approval, filed by Rick
Moore, Leonard Morris and Edith Simpson (hereinafter “the
Citizens”).
That petition seeks review of a September 30, 1986,
decision of the Wayne County Board
(hereinafter “Wayne County”)
granting approval
to a site location suitability request filed by
Daubs Landfill,
Inc. (hereinafter “Daubs”).
A hearing was held
December
30, 1986.
Final briefs were filed by Daubs on January
20,
1987, and by the Citizens on February
2,
1987.
The threshold issue raised in this petition for review is
whether Wayne County,
and subsequently this Board,
has jurisdic-
tion to entertain this proceeding.
These proceedings were
conducted pursuant to Section 39.2 of the Environmental
Protection Act (“Act”)
and are commonly referred to as “SB172”
proceedings.
The Citizens argue that due to a defect
in the
description of the location of the proposed site,
Daubs failed to
satisfy the notice requirements of Section 39.2(b)
of the Act by
providing an inaccurate legal description of the proposed site
in
the notice of application.
The legal theory that compliance with
the notice requirements
of Section 39.2(b)
is
a jurisdictional
prerequisite was first articulated by the Second District Court
in The Kane County Defenders, et al.
v. The Pollution Control
Board,
et
al.,
139
Ill.
App.
3d
588, 487 N.E.2d
743,
(December
30,
1985).
The Kane County court found that a failure
to provide
adequate notice deprived the county board and the Pollution
Control Board of jurisdiction.
76-63
—2—
In the instant case, Daubs’
newspaper notice of application
and registered mail service of notice of application contained,
in addition to a general narrative description of the site
location,
a legal description that provided the wrong Township
(the facility is actually in Township
2 South, the notice listed
it as being
in Township 1 South).
The error would place the
noticed site location at least six miles north of the actual
site.
In response,
Daubs argues that the typographical error
in
the legal description of the property is not a jurisdictional
defect.
Daubs asserts that:
(1)
a legal description of the
property
is not required by statute, thus, the legal description
is mere surplusage;
(2)
the location of the proposed site was
adequately and accurately described in the narrative which fol-
lowed the legal description
in the notice which was published on
March 30,
1986;
(3)
the public notices provided by Wayne County
provided the correct legal description of the location of the
proposed facility;
and
(4) no harm or prejudice has been
demonstrated to result from the error and
in the absence of a
showing of harm,
the error should be ignored.
To properly evaluate the respective positions,
it
is appro-
priate to review the statutory requirements and the relevant
facts.
Because of the nature of the case, the particular
timing
and content of the notice and publication efforts become crucial
to an ultimate decision.
It
is therefore appropriate to review
the prehearing record
in great detail.
The notice. requirements which are placed on the applicant
are described
in Section 39.2(b)
of the Act:
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 pro-
perty 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 require-
ment
exceed
400
feet,
including
public
streets,
alleys and other public ways.
76.64
—3—
Such written
notice
shall
also
be
served upon
members of the General Assembly from the leg-
islative
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 prob-
able life
of
the proposed
activity,
the date
when
the
request
for
site
approval
will
be
submitted
to
the county board,
and
a descrip-
tion
of
the
right
of
persons
to
comment
on
such request as hereafter provided.
No arguments have been raised about the manner of service,
publication,
or timeliness of the notice.
Therefore,
the Board
must conclude that all appropriate persons were served
in a
timely and proper manner.
The issue presented is whether the
incorrect legal description in the notice of application
published
in the newspaper and served on the required individuals
renders the notice defective and divests the county board and
this Board of jurisdiction.
The process below began when Daubs prepared
a “Notice
of
Request
for Site Location Approval....”
That notice was
published
in a local newspaper to satisfy the publication
requirements of Section 39.2(b)
and the same notice was sent, by
registered mail,
to legislators and adjacent property owners to
satisfy the service requirements
of Section 39.2(b).
The notice
contained an incorrect legal description of the property
(Township
1 South, rather than Township 2 South),
although the
narrative description closely described the location.
The
relevant descriptions from the notice stated:
Be
it
known that on
the 8th day of April,
1986,
Daubs Landfill, Inc.,
203 Jessup, Carmi,
Illinois
62821,
will
request
site
location
approval,
pursuant
to
the
Illinois
Environ-
mental
Protection Act,
from
the Wayne
County
Board
for
a
regional pollution control facil-
ity
on
the
following
described
lands,
to—
wit:
E—2 NE—4;
E—2 W—2
NE—4;
NW—4
SE—4;
E—2
NE—4 SW—4; all
in Section
5, Township
1 South,
Range
7
East
of
the
3rd
Principal
Meridian,
Wayne County,
Illinois,
located approximately
1/2
mile
North
of
Illinois
State
Highway
15
West of Fairfield, Wayne County,
Illinois, and
approximately
2 miles West of
U.S.
Highway 45
North
of
Fairfield,
Wayne
County,
Illinois,
and
being
approximately
~/2miles West
of
the
76-65
—4-.
West
city
limits
of
the
City
of
Fairfield,
Wayne
County,
Illinois.
The proposed
use of
the
facility
will
be
for
a
non—hazardous
residential and industrial general
solid waste
disposal landfill.
The next chronological item in the record below
is the April
8,
1986, Request for Approval filed with Wayne County by Daubs.
That request for approval again provided an incorrect legal
description of the location of the proposed facility:
On behalf of my client,
Daubs Landfill,
Inc.,
203 Jessup, Carmi, Illinois 62821,
I am hereby
formally requesting site location approval for
a
site
for
a
non—hazardous
residential
and
industrial
general
waste
landfill
from
the
Wayne County Board
for the following described
lands, to—wit:
T1S R7E
Section
5:
E/2 NE/4; E/2 W/2 NE/4;
NW/4 SE/4;
E/2 NE/4 SW/4,
Wayne County,
Illinois
pursuant
to
Illinois
Revised
Statutes,
ch.
1111/2, Sec. 1039.2
From the record,
it appears that the request
for approval
included the above—quoted paragraph,
a copy of the Notice of
Request published March 10,
1986, cover letters and return
receipts for those individuals required to be served pursuant to
Section 39.2(b)
and a ~2page
letter describing Wayne County’s
options for future land disposal, encouraging Wayne County
to
select the option allowing Daubs
to operate
a landfill, and
promising
to provide technical information as
soon as
it was
available from the registered professional engineer.
In a May
15,
1986,
letter to
the Attorney for Citizens, the Wayne County
State’s Attorney recounted certain decisions reached by the Wayne
County Board,
including
a requirement that Daubs file
a detailed
proposal concerning
the landfill not later than June
1,
1986.
That letter first raises the discrepancy regarding the incorrect
legal description in the notice:
At
the
May
13
meeting,
Mr.
David
Williams
appeared
to
point out
to
the County
Board
an
apparent
error
in
the applicant’s request for
site
approval.
The
request
described
the
location
as
T1S
R73
(sic;
should
be
R7E),
Section
5,
E/2 NE/4;
E/2 W/2 NE/4;
NW/4 SE/4;
E/2 NE/4
SW/4.
Mr. Williams indicated that
in
fact
the request
for approval
is
for T2S R7E,
Section
5,
E/2 NE/4;
E/2 W/2 NE/4;
NW/4 SE/4;
76-66
—5—
E/2 NE/4
SW/4.
His position
is that this was
merely a scriveners error, not jurisdictional,
and
that
actual
notice
has
been
gi.ven.
You
may
wish
to
raise
objection
in
writing
and
file
it with
the Wayne
County Clerk
at
least
21
days
before
the
commencement
of
public
hearings
and
serve
a
copy upon Mr. Williams.
If this objection is filed,
I would anticipate
it being considered and argued on July 15.
On May 22, 1986, Counsel
for the Citizens responded to the
State’s Attorney’s letter regarding the error in description:
With
respect to the question
of
the
error
in
the
legal
description
in
the
applicant’s
notice,
I
will
not
raise
the
issue
in
the
manner that you suggest because
I believe that
the
County Board
must,
nonetheless,
hear
the
matter
as
it
would
under
ordinary
circumstances.
If
I
should
ask
the
County
Board
to
determine
that
the
error
voids
jurisdiction and the County Board should agree
and, as a result,
stop the proceedings, at the
end of 180 days the applicant presumably would
claim
that the request
is “deemed approved” by
operation of
law.
I simply will proceed as
I
would
have
without
the
error.
It
is
the
applicant’s
problem
to
assure
that
all
jurisdictional
prerequisites
have
been
met.
Apparently
the
applicant
has
determined
that
the error
is not jurisdictional.
Whether this
is
correct
must
be
determined
on
appeal;
certainly
I do
not
in any way waive
the issue
and
neither
do
I
believe
I
am
required
to
object
as
you
have suggested
to preserve
the
issue.
On June
2, 1986, Daubs
filed extensive material with Wayne
County,
including:
a partially completed application
for an
Illinois Environmental Protection Agency solid waste management
permit,
letters from Illinois Department of Energy and Natural
Resources,
State Geological Survey and Illinois Department of
Transportation regarding site conditions, various United States
Geological Survey maps and survey plats and the resume of the
registered
professional engineer.
The filing letter also
indicates
that results of the soil and water analysis would be
filed not later than June 15,
1986.
The partially completed IEPA
application and the maps correctly show the location of the
proposed facility as Township
2 South.
On June 16,
1986, Wayne County provided notice by certified
mail
of the location of the proposed facility and the time of the
76-67
—6—
public hearings.
That notice provided a correct legal
description of the property and set public hearings to begin on
July 15,
1986,
at 7:00 p.m., with hearings to be continued as
necessary.
This notice appears
to be responsive to the requirements of
Section 39.2(d)
of the Act which places certain notice and
hearing requirements on the County Board:
At least one public hearing
is
to
be held by
the
county
board
or
governing
body
of
the
municipality
no
sooner
than
90
days
but
no
later
than
120
days
from
receipt
of
the
request
for
site approval, such hearing
to be
preceded by published notice
in a newspaper of
general circulation published in the county of
the
proposed
site,
and
notice
by
certified
mail
to
all
members
of
the
General
Assembly
from
the district
in
which
the proposed
site
is
located
and
to
the
Agency.
The
public
hearing
shall
develop
a
record
sufficient
to
form
the
basis
of
appeal
of
the decision
in
accordance with Section 40.1 of this Act.
The record discloses copies of the certified mail receipts but
contains no reference to the publication
in a newspaper of
general circulation.
Since no party has raised the publication
issue, the Board presumes that publication was properly
effectuated.
On June 12—16,
1986,
Daubs caused a second “Notice of
Request...” concerning the same site to be published and served
on the appropriate individuals.
This notice was identical to the
original March
7 notice with two exceptions.
First, the error
in
the legal description had been corrected,
and, second, the notice
states that an application for site location approval will be
filed on July 8,
1986.
On July 8,
1986, Daubs filed
a second
“Request for Site Location Approval.”
This second request was
composed of
a cover letter that provided a correct legal
description of the proposed site, as well as copies of the June
“Notice of Request...” and proof of publication and service.
These
two documents, according to all parties, are not
a
legitimate part of this record.
At the hearings, which began July 15,
1986, Wayne County
clarified that the June “Notice of Request...” and July,
“Request
for Site Location Approval” were inadvertently included
in this
record.
The second notice and request constituted a separate and
distinct proceeding filed by Daubs.
This second proceeding would
not be decided by Wayne County based on this record.
All parties
were
in agreement on this interpretation (County Transcript, pp.
83—84).
The Board has not been informed of the disposition of
76-68
—7—
this second proceeding before Wayne County.
Since the parties
are
in agreement that the second “Notice” and “Request” are not
properly
a part of this record, they will not be considered
in
the Board’s decision.
In summary,
the Board finds that in March,
1986, Daubs
caused notice to be published and to be served on all required
individuals
in
a timely and proper manner.
However, that notice
contained an error
in the legal description of the location of
the proposed site.
The notice did contain an accurate narrative
description of the proposed site.
The Board
finds that the April
8,
1986, request for site location approval also contained an
incorrect legal description,
but contained a correct narrative
description.
The Board finds that Wayne County fully complied
with Section 39.2(d)
in that notice was timely, proper and
accurate
in all respects.
From the perspective of those to whom
notice
is due,
the Board
finds that the adjacent property owners
described
in paragraph one of Section 39.2(d) were
never served
in this proceeding with an accurate legal description of the
property and that publication of notice with an accurate legal
description
first occurred with the Wayne County notice under
Section 39.2(d).
The Developing Law
There
are no appellate court opinions that directly discuss
the consequences of an error in the notice regarding the location
of the proposed site.
Consequently, the Board must evaluate the
general principles of law articulated ‘by the courts relating to
Section 39.2(b)
notice and apply those general precepts, and any
other related law, to the facts of this case.
The provisions of
the statute relating
to notice were first interpreted
in City of
Aurora v.
Kane County Board, et al., No. 84—940
(Ill. App. Second
District, December 30, 1985).
In the Kane County case,
the Elgin
Sanitary District
(ESD)
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.
76.69
—8—
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
this result, 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
statutes’
use of the mandatory term “shall,” and the general
principle that an administrative agency derives power solely from
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
opportunity for public comment on the proposed
site,
is
the
most
critical
stage
of
the
landfill
site
approval
process.
We
find
support
for
this view
also
in
the
statutory
notices 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.
1111/2,
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 directives
rendered the application deficient.
The Second District recently
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, No.
85—309,
144 Ill. App.
3rd
76-70
—9—
334,
494 N.E.2d.
180
(June
4,
1986).
Thus, the law seems well
established that even a one—day error
in publication or service
of notice of intent to file a site location suitability request
constitutes a fatal error removing jurisdiction from the county
board.
This Board’s first extension of the Kane County rationale
beyond the timing issue occurred
in Everett Allen v. City of Mt.
Vernon,
PCB 86—34
(July 11,
1986).
The site location approval
process began when Everett Allen prepared a notice of intent to
file
a site location suitability approval application.
That
notice was mailed,
by certified mail,
to the adjacent property
owners on July 25,
1985.
The legal notice was published in the
Mt. Vernon Register—News on July 29,
1985.
The actual
application was filed with the City of Mt. Vernon on August 12,
1985.
Both the notice to adjacent property owners and the
newspaper notice contained the following language:
...The
City
Council
of
the
City
of
Mount
Vernon shall
consider any comment received
or
postmarked
not
later
than
30
days
from
the
date
of
receipt
of
the request
in making
its
final
determination.
Additionally,
at
least
one public
hearing
is
to
be held by the City
Council
of the City of Mount Vernon within 60
days
of
receipt
of
the
request
for
site
approval....
While this notice was published and mailed
in a timely
manner,
it did not accurately describe the right of persons to
comment on the request.
At all times relevant to the proceeding,
the statute, which had been amended, provided
for a public
hearing
to be held not less than 90 days nor more than 120 days
from filing the application and provided that comments postmarked
not later than 30 days after hearing must be accepted.
In Allen,
the Board found that the error regarding public
participation constituted
a substantial and material failure
to
state
“...
a description of the right of persons to comment on
such request as hereinafter provided”
(Section 39.2(b)
of the
Act).
The Board also found that the error could not be corrected
by a second notice, which correctly described the opportunity to
comment, where Allen published that second notice about 90 days
after
the request was filed.
Based on prior holdings,
it
is
clear that even a one—day error
in the timing of the notice will
be fatal; however, as discussed below,
a defect
in the content of
the notice will only be fatal where that error
is substantial and
material.
The Environmental Protection Act
is not the only statutory
guidance of significance
to the
issues presented today.
Chapter
100,
I.R.S.
(Publication of Notices in General)
governs notices
76-71
—10—
required by law.
Of particular relevance
is paragraph 8.1,
Section 9, which provides:
8.1
Description
of real property
§9.
When any notice required by law sets
forth
the
legal description of
real property,
the
notice
shall
also
designate
the
Street
address
of
the
property,
or,
if
there
is
no
street
address
applicable
to
the
property,
shall describe
the property with reference
to
location,
ownership
or
occupancy
or
in
some
other manner
that will reasonably identify the
property to residents of the neighborhood.
In
the
event
of
a
conflict
between
the
legal
description
and any other description required
by
this
Section,
the
legal
description
shall
control.
No
notice
under
this
Section
is
invalid
if
the
legal
description
is
correct... (Emphasis added)
It would appear that this provision is controlling on one
aspect of the issue presented
in this proceeding.
The March
“Notice of Request
for Site Location Approval...” prepared by
Daubs
is a notice required by law.
That notice set forth
a legal
description of the real property and a narrative description.
There
is a conflict between the legal description and the other
description
in that the legal description references Township 1
South which
is about
6 miles north of :the narrative
description.
Consequently, Paragraph 8.1, Section
9,
requires
the Board to conclude that the legal description
in the March
notice was controlling.
Paragraph 8.1, Section
9 states that
a
notice
is not “invalid
if the legal description
is correct.”
This implies that notice
is invalid where, as here, the legal
description
is incorrect.
In addition
to the previous statutory provision, the Board
reviewed the case law relating
to errors
in legal description.
Only one case appeared relevant, Gard v. Bosch,
4 Ill. App.
3d
828, 281 N.E.2d 788
(Third District,
1972).
In Gard,
the Village
of Bellevue attempted to annex an 80—acre tract of land
to the
Village pursuant to procedures established at Ill. Rev.
Stat.
1969,
Ch.
24, Section 7_l_5*, which provides:
7—1—5.
Action by municipal council
7—1—5.
After
the
clerk
receives
the
certified copy of the
order
of
the court,
the
*
Article
7
of Chapter
24 was significantly amended
in 1980.
76-72
—11—
corporate
authorities
of the annexing munici-
pality
shall
proceed
to consider
the question
of
the
annexation
of
the
described
terri-
tory.
A majority
vote
of
the
corporate au-
thorities
then holding
office
is
required
to
annex.
The vote shall be by “ayes” and “noes”
entered on the legislative records.
Except as
is
otherwise
provided
in
Section
7—1—1,
this
decision
shall
be effective after
the expira-
tion
of
30
days,
unless
a
referendum
thereon
is
ordered
by
the
corporate
authorities
or
unless
a
petition
for
such
referendum
is
filed.
Within 30 days after
the Village of Bellevue made its annexation
decision,
a petition for referendum was presented to the
corporate authorities.
The Gard court found the error
in legal
description
in the petition was not fatal:
Next
the
appellants
argue
that
the
petition
described
the
wrong
property
and
hence
was
an
insufficient
basis
to
require
submission
of
the
annexation
question
to
a
referendum.
The
caption
of
the
petition
admittedly describes
the
property correctly.
However
in the body of the petition the legal
description
contains
the reference
to “South-
west Quarter”
rather than “Northwest Quarter”.
As
a general
rule the precision required
of
a legal description of
real estate depends
upon purpose of the document, the risk of harm
and
the
likelihood
that
the
parties
dealing
with such document will
be misled,
injured or
prejudiced.
Descriptions
of municipal bound-
aries
do
not require
the
same
specificity
as
may
be
required
in
deeds.
People
ex
rel.
Cameron
v.
New,
215
Ill.
287,
73
N.E.
362.
The
mistake
is
patent
and
the
erroneous re-
ference
in
the
body
does
not
even
describe
property contiguous
to
the Village.
When
the
description
in
the
body
of
the
petition
as
well
as that in the captions are considered
in
connection with the annexation ordinance there
can
be
no
doubt
as
to
what property was in-
tended
and
there
is
additionally
no
showing
that there was any reliance on such mistake
to
anyone’s detriment.
People
ex
rel. Village of
Worth v.
Ihde,
23
Ill.2d 63,
177 N.E.2d 313.
In reaching that decision, the court made particular note
that the referendum proceeding was not
a new, separate or
76-73
—12—
independent action;
it related
to a decision on the annexation of
property which had been made within the last 30 days by the
corporate authorities
to whom the petition must be delivered.
The process in Gard involved filing a petition with one
entity
(the corporate authority), which knew the precise legal
description based on their prior municipal action.
The Board
cannot apply the Gard rationale regarding errors
in legal
description to a notice process which is intended to inform the
public at large
(publication) and various described individuals
(service)
of
a new and unexpected proceeding.
As a consequence,
the Board finds the notice provisions of
I.R.S., Ch.
100, paragraph 8.1, Section
9, persuasive and holds
that the error
in legal description of the property in question
constitutes
a substantial and material failure to state the
location of the proposed site as required by law.
As the notice
was defective,
the Kane County rationale requires the Board to
find,
and it so finds,
that Wayne County lacked jurisdiction to
proceed.
Accordingly,
the decision of the Wayne County Board is
vacated.
The Board notes that today’s proceeding does not present the
issue of whether a legal description
is necessary, “to state...
the location of the proposed site.”
Today’s proceeding involves
a notice where the legal description was used, but the legal
description was inaccurate.
The Board emphasizes that its
determination
in this case should not be construed as discour-
aging the use of a legal description.’ On the contrary,
a correct
legal description could arguably be a safeguard against claims
that the narrative description
in the notice lacked sufficient
precision.
This Opinion constitutes the Board’s finding of facts and
conclusion of law in this matter.
ORDER
The September 30,
1986, decision of the Wayne County Board
is hereby vacated.
IT IS SO ORDERED.
Chairman J.D. Dumelle and Board Member
J. Theodore Meyer
dissented.
76-74
—13—
I, Dorothy
M. Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certify that the a~oveOpinion and Order was
adopted on the /~7 day of
~
,
1987,
by a vote
of
____________.
/
Ill
s Pollution Control Board
76.75
