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.

DISSENTING OPINION

(by J.D.

Dunhelle and

J. Theodore Meyer):

While we agree with much of what is contained

in the

majority’s opinion, we cannot agree with the conclusion.

We

believe that the general rule regarding legal descriptions as set

forth

in Gard and cited

by the majority should guide

the

decision:

that is,

in essence, that the Board should look to the

purpose of the notice

and whether that purpose was fulfilled.

While we are mindful of the various cases cited by the

majority which have strictly construed various aspects of the

notice requirements,

by and large

those cases

are based upon

timing: either

the notice was not timely published or did not

contain accurate information regarding the time period

for which

some action was

to take place.

None of

the cases

cited deal with

the adequacy of the description of the location of the proposed

site.

As the majority correctly notes,

there

is no requirement

that a legal description of the location of the

site even be

included

in

the notice.

The majority also acknowledges that the

narrative description of the property which immediately followed

the legal description was accurate, and would have been found

to

be sufficient

if there

had been no legal description at all.

Furthermore,

the legal description was correctly contained

in the

County’s public notice of hearings.

Finally,

the record

is

devoid

of any evidence that anyone was misled or harmed by the

inaccuracy of the legal description.

The only notice defect at issue here

is

a typographical

error

in one number of the legal description; otherwise, the

majority found that “Daubs caused notice

to be published and

to

be

served on

all required

individuals

in

a timely

and proper

manner.”

Based upon the facts of this case we can

find nothing

to support

a conclusion that the notice failed

to accomplish its

76-76

---

—2—

intended purpose

or that there

is any substantial possibility

that anyone was misled,

harmed or prejudiced by the typographical

error.

While we realize that sometimes such harm must be

presumed

since

the inadequacy of the notice could

serve

to

preclude awareness of the proceeding

in which to raise

objections,

we cannot find that

to be the case where,

as here,

a

correct narrative description of the property was included

in the

original notice and the notice of hearing was fully accurate.

For these

reasons we cannot find that the typographical

error

in this case is of such import as

to constitute

a fatal

defect

in notice

so

as to render nugatory over

14 months of legal

proceedings.

We would have found proper jurisdiction and gone on

to consider the merits of the

case.

Therefore, we respectfully

dissent.

~.

!~heodor(eMeyer

Board Member

I,

Dorothy

M.

Gunn, Clerk of the Illinois Pollution Control

Board, hereby certify that the ~ove

Dissenting Opinion was filed

on the

_____________

day of

_~-t~-~-t~

1987.

CL

~

/

/~

Dorothy

M. “Gunn,

Clerk

Illinois Pollution Control

Board

acoL

hairman

76.77