ILLINOIS POLLUTION CONTROL BOARD
March
7, 1985
JANET HOESMAN and
)
BYRON HOESMAN,
Petitioners,
v.
)
PCB 84—162
CITY COUNCIL OF THE CITY OF
URBANA,
ILLINOIS, AND THE
CITY OF URBANA,
ILLINOIS,
Respondents.
OPINION
(by J.
D. Dume3.le and B. Forcade)
On March
7,
1985,
the Board reached a “decision deadlock” on
this appeal and was unable
to adopt an order either reversing or
upholding the City Council by the statutorily required four
votes.
(See Order
of the Board, March
7,
1985~,) As a result of
this “dead1ock~and the termination of the statutory 120 day
decision period, the Urbana City Council
(Council) decision to
grant site location suitability approval for the new regional
pollution control facility in question may be deemed approved by
operation of Section 40.1(b)
of the Environmental Protection Act
(‘~Act”), and the Board~sjurisdiction over this matter has ended.
This Opinion is intended to delineate the reasons that we
two Board Members voted to reverse the City CounciUs approval.
In addition,
we would commend the parties
in that the record and
pleadings coming to
this Board are
a model
for
clarity and
organization.
A.
Decision Based on Unsworn Testimony
At the required public hearing before the City of Urbana,
Mayor Jeffrey Markiand, hearing officer, stated,
“Please note
that while speakers will not be sworn in
,
their testimony
becomes an official part of the record of these proceedings”
(Record, Section 2.1,
p.
4).
Subsequent testimony was not
sworn.
For this reason,
we would reverse the City Council in
that unsworn testimony does not provide “evidence”
to support the
determination below.
This is based on
prior
court holdings that
adjudicative due process standards apply to local government
determinations under Section 39.2 of the Act.
In E
& E Hauling,
Inc.
v.
Pollution Control Board,
et.
al.,
71 Ill. Dec.
587,
451 N.E.2d555
(1983)~? the Second District
addressed the procedural requirements that apply to County Board
determinations regarding site suitability.
After rejecting a
claim of constitutional due process for such proceedings,
the
83-171
—2—
Second District held that the words “fundamental fairness” create
a statutory due process standard for such proceedings.
Having
found due process to apply,
the court proceeded to explain the
two types of due process
(adjudicative and rulemaking)
and
determine which applies to local government site suitability
determinations.
In so doing the Second Circuit equated site
suitability determinations with this Board’s determinations on
variances.
While the line between adjudication and rulemaking
“may not always be
a bri~h~:
one,”
the basic distinction
is one “between proceedi~çu~.for the purpose of
promulgating policy—type
;:~1esor standards,
an the one
hand,
and proceedings designed
to adjudicate disputed
facts
in particular cases on the other.”
(United States
v. Florida East Coast Railway Company,
410 U.S.
224,
245,
35 LEd.
223,
239,
93 S. Ct,
810, ~21 (1973).)
Under Section 39.2 the Board’s decision on the grant or
denial of
a permit turns on its resolution of disputed
fact issues, whether the particular landfill,
or
expansion,
for which the permit
is sought meets
the
specific factual criteria set out in Section 39.2 of the
Act.
The facts that the Board relies on are developed
primarily by the immediate parties rather
than acquired
through the Board’s own expertise.
Our supreme court has held that the decision whether
to grant a variance from an environmental regulation
is
quasi—adjudicatory, although the imposition of
conditions on the variance
is rulemaking.
(Monsanto v.
Pollution Control Board,
67 Ill.2d
276,
289—90
(1977).
See also Environmental Protection Agency v.PCB,
92 Iii.
App.3d
1074, 1081—82
(1981),)
As the
factual criteria
involved
in the County Board’s decision under Section
39.2 are not substantially broader than those
in the
statutes involved
in the above—cited cases,
we adopt a
similar rule here.
(Slip Op. at 17—18.)
There is remarkably little case law nationally on whether
adjudication requires sworn testimony.
To the extent
a common
thread has emerged,
it
is:
Unsworri testimony.
An objection to the admission of
unsworn testimony must be taken in the trial court;
but
it
is held that, although an objection is not taken
in
the trial court, or urged on the appeal,
an appellate
court cannot ignore
the error or
regard the silence of
counsel as
a waiver, and a judgment will be reversed
where there
is
no other proof
in support of the
verdict.
(Corpus Juris Secundum, Appeal
& Error,
§295,
p.
909.)
There
is some Illinois case law on this point.
In Ivanhoe
v.
Buda,
251 I11.App.
192
(First District,
1929)
the Court held
63-172
—3—
it was improper
to allow unsworn testimony by an attorney where
that testimony formed a basis for the ultimate award:
We think it was error
to permit the attorney to
read to the jury what was said to be Dr. Wiggleworth’s
mortality tables.
The attorney was not sworn and his
statement to the jury as
to the plaintiff’s expectancy
was improper
(at 195).
In the absence of more specific judicial guidance, we would
hold that testimony at Section 39.2 hearings must be sworn and
that
to the extent
a local government determination on some
c:r~teriais based exclusively on unsworn testimony,
it must be
reversed even if not objected
to below or raised on appeal.
In reviewing the record before the Urbana City Council,
the
only oral or documentary “evidence”
we find on the six criteria,
b~earingan attestation of truth,
is Exhibit 3.1.
That exhibit
is
Urbana’s application to the Illinois Environmental Protection
Agency for
a developmental permit.
That document
(at Part 1.0,
page 11)
contains an adequate affirmation signed by an engineer
and Mayor Mallard, that the statements contained therein are
true.
However,
those affirmations were not signed until
September
14 and September
18, 1984, respectively.
This was well
after the public hearing of September 10 and cannot be used to
support the testimony or 32
exhibits
introduced at that hearing.
While Exhibit 3.1 might support the Urbana City Council
determination on the more technical aspects of the six criteria
of Section 39.2 of the Act,
it
is totally lacking
in information
an need
(Criterion No,
I)
or incompatibility with the character
of the surrounding area and effect on the value
of the
surrounding property
(Criterion No,
3),
Consequently, we would
find there
is
no “evidence” on these criteria to support the
Urbana City Council determination and we would reverse.
B.
Decision on Criterion
No.
3
~
the Manifest Weight of
the Evidence
Notwithstanding our view that the unsworn testimony
in this
record cannot be regarded as evidence,
we would have reversed the
City Council’s approval with regard
to Criterion No.
3 anyway.
For that reason, we will provide a review of the “information”
in
this record as
it relates
to Criterion No,
3,
Section 39,2(a)
of the Environmental Protection Act
(Act)
provides that the governing body of
the municipality shall
approve site location suitability for
a new regional pollution
control facility
(RPCF)
only in accordance with six enumerated
criteria.
Criterion No.
3 contains two distinct factors which must be
addressed by the governing body,
i.e.,
the facility is located so
as to minimize incompatibility with the character of the
63-173
—4—
surrounding area and the facility
is located
so as
to minimize
the effect on
the value of the surrounding property.
The
Petitioners, Janet
and Byron Hoesman, charged that the Council’s
decision was against the manifest weight of the evidence with
regard
to both factors, and that,
furthermore,
there was no
evidence
in
the record as
to the effect of
the facility on
property values.
With regard to both factors,
the Council gave the following
four reasons for
its conclusion that the site was located
in
accordance wit~Cr:
~::~~nNo.
3:
a)
The faci1*t~’~s merely an extension of
an
existing ~a~:tary landfill which comprises
in
excess
of l2~acres;
b)
The site
is triangular
in shape with two sides
abutting previously approved and operated
sanitary landfill areas;
C)
The remaining property line of
the site
is
adjacent to row—crop farmland
and, parallel
to
said property line,
the Applicant will
construct
an earthen berm to provide
a visual
and physical separation of the site;
and
d)
The Applicant will attempt
to promote the
ultimate development of
the site and
previously
approved and operated sanitary
landfill
areas into recreational purposes
in
conjunction with the Urbana Park District.
1.
Incompatibility with the Character of
the Surrounding Area
In Waste Manaqement of Illinois,
Inc.,
v.
Lake County Board
and the village of Antioch,
(PCB 82—119, December
30,
1982),
the
Board held that the fact that a site
is an extension of
an
existing system or
is proposed to be
located next
to a previously
operated site cannot be used
to demonstrate the compatibility of
the site.
In that case the Board cited two reasons for rejecting
this
type of demonstration.
First, Sections
39.2 and 3(x)(2) of
the Act clearly require that expansions of existing RPCF be
subject i~o the same review process as that required
for
totally
new facilities.
Second,
once a pre—existing landfill
is closed,
the character of
the area becomes one of open space and the
residents may have a reasonable expectation that it will
be
so
maintained.
The Board concluded that
it would “not allow the
potential of damage
to the surrounding community due
to
a
proposed expansion
to be negated by a ‘boot—strapping’
argument
that the existing landfill has already caused
real or perceived
damage
to that same area.”
(Id.
p.
12),
This decision was
explicitly upheld
on
re:7iew by the Second District Appellate
Court
(No. 83-i6?, Ma~
~
1984):
63-174
—5—
We agree with the PCB that the clear
intent of the
statute
is to require the local government units
to
consider a proposed facility expansion as
a new and
separate regional pollution control facility.
Consistent with this legislative
intent,
therefore,
petitioner should not be able to establish
compatibiliity based upon a preexisting facility.
This reasoning
is equally valid
in this case.
Therefore,
the
first two reasons given by the Council with regard
to this
criteria cannot be used as evidence of the compatibility of the
surrounding area,
The fourth reason given by the Council,
i.e.,
that
it will
attempt
to promote the development of the proposed site and
previously operated sites
into recreational areas, must also be
rejected.
Projections as to the future reconstruction or
development of the site are irrelevant to the current
compatibility of an operating site with the surrounding area.
The local body
is not charged with reviewing the compatibility of
subsequent uses of the site, but rather with reviewing the
compatibility of the proposed use.
To allow this type of
reasoning to prevail would be to condone another “boot—strapping”
argument that would negate consideration of potential damage to
the surrounding area from the operation of the proposed RPCF.
In
its third reason given under Criterion No.
3,
the Council
notes that one side of the site borders on “row—cropland” and
that the Applicant will construct an earthen berm as
a visual and
physical barrier on this side,
As an initial matter,
we note
that neither the construction of the earthen berm nor any other
construction design or operational plan are evidence that the
site
is located so as to minimize incompatibility.
These efforts
to mitigate the impact of the facility take the location of the
facility as a given.
They are correctly considered under
Criterion No.
2 and Criterion No,
5.
However, Criterion No.
3,
if
it
is to be given a meaning which
is distinct from Criterion
No.
2 or Criterion No,
5, must be interpreted as also requiring a
review of the location of the site
in terms of the character
of
the surrounding area,
Such review should be independent of any
measures which may be taken to mitigate an adverse
impact on the
area.
This
is not to say that construction, design,
and
operational features are irrelevant.
They may certainly be
evidence of the character of the site itself.
However,
they do
not negate the need
to independently consider the character of
the area in which the site
is to be located.
The Council’s only reasoning regarding the critical
consideration under Criterion No.
3
is limited to the character
of the property immediately bordering the proposed site which
it
characterizes as “row—cropland.”
In previous SB 172 cases,
the
Board and the courts have reviewed
a “surrounding area” as
far
as
500 feet,
1,000
feet,
one mile and even five miles away from the
proposed site.
(For example,
see Waste Management of Illinois,
63-175
—6—
Inc.,
V.
Lake County Board and Village
of Antioch, PCB 82—119,
December 30~ :1982,
pp.
8—13; Waste Management of Illinois,
Inc.,
v.
Illinois Pollution Control Board,
No.
83—166,
Second District
Appellate Court
of Illinois, May 8,
1984,
pp.
20.23;
Town of St.
Charles et
al.
v. Kane County Board
and Elgin Sanitary District,
PCB 83—228,
229 and 230 (consolidated),
March 21,1984,
p.
16.)
In
this instance,
the record indicates
that approximately 300
to
400 people live within 1,000
feet of the proposed
site.
Some of
these residents may currently live as close
as 600 feet from the
proposed site (Record,
Section 2.1,
p.
72).
A number
of these
residents appeared and spoke
at the Urbana Plan Commission’s
hearing on the Special Use Permit,
the detailed minutes of which
are contained in this record at Section 4.1.
Three residents
also spoke
at the hearing required by Section
39.2.
(See Record
Section
2,1),
In addition, two petitions containing
approximately 107 signatures of
residents living within 1,000
feet of the site are contained in the record
at Section 4.1,
pp.
36—39.
Given
the abundant information
in this record of
intensive residential uses within 1,000 feet of this site, we
believe the Council
should have addressed
in
its reasoning
a
broader “surrounding area” than merely that on the property—line
of the proposed site,
Although the Council did not refer
to
it
in its written
reasons,
the record does contain information on a broader
surrounding
area,
In addressing Criterion No.
3
at
the
September 10,
1984 hearing,
the Applicant’s Director
of Public
Works, Mr. James Darling presented slides and briefly discussed
the character of the broader surrounding
area.
(Section 2.1,
pp.
17-19).)
Referring to Respondent’s Exhibit No.
21,
an aerial
photograph showing an area of unspecified scale
around
the
proposed
site,
Mr.
Darling pointed out the uses and
in some
instances
the zoning of
this area,
The uses shown in the
photograph
include
the existing and former
landfill
site to the
north
and east, sewage lagoons to the north,
a sewage treatment
plant
to
the west,
a single family home area and a junkyard and
salvage yard to the northwest,
a wooded recreation area and
an
industrial park
to the southwest,
and agricultural and
residential properties to the south
and southeast,
including
four
mobile home parks
and
a single family—home subdivision.
Exhibit
No.
22
is
a land use map of
the same area.
Exhibit No 23
is
a
zoning map
of the area.
These maps,
together with the aerial
photograph,
indicate that the surrounding area contains
a variety
of residential
uses,
including
single family, multi—family,
and
mobile home residences, parks and commercial districts.
Mr.
Darling testified that the mobile home parks were constructed
in
the 1960’s
wriile
the original landfill began operation
in
the
1940’s.
(Record, Section 2.1,
p.
17.)
Other
information
in the
record also indicates
that the character of
the surrounding area
has become
increasingly residential
in the last 40 years.
(Petitioner’s Exhibit No.
6,
Record, Section 2.1, pp.
60—66
and
70—73.)
In
fact,
although the Applicant and the Council
characterize the property immediately south
and adjacent to the
proposed site as
“row--crop land”,
Champaign County has zoned
the
63-176
—7—
property R—4
for multi—family residences.
If
this property were
to be developed according to its planned
potential,
the proposed
site would share a property line with multi—family residences,
the proposed earthen berm being the only buffer.
Apparently,
just this situation has been allowed
to occur on the south
property line of the existing landfill.
The landuse map labeled
Respondent’s Exhibit No.
22 shows that the 1982 17 acre landfill
expansion was constructed adjacent to the Chief Illini Mobile
Home Park.
We conclude that the close proximity of such intensive
residential uses and the fact that the proposed site would border
on property planned
for
residential development
is a clear
indication that the location has not been selected
so as
to
minimize incompatibility with the surrounding area.
On the
contrary,
information in the record indicates that the site has
been selected primarily because it
is the last tract owned
by the
City of Urbana and
it represents the least expensive and most
expeditious disposal alternative.
(Record, Section 2.1, pp.31—
40;
Record, Section 4,1, pp.
40—52,
81 and 86.)
The Respondent’s
primary consideration with regard
to compatibility appears
to
have been the
fact that the area has been the site of previous
landfills.
As noted earlier and
in previous Board and Appellate
Court Opinions,
the fact that an area has
in the past been
burdened with a landfill cannot be used to negate consideration
of what would otherwise be deemed incompatible development.
Therefore,
after
a review of the Council’s reasoning as well as
the record before
it,
we conclude that the Council’s
determination with regard
to the compatibility of the surrounding
area was contrary to the manifest weight of the information.
2.
Effect on the Value of the Surrounding Property
With regard
to the second factor required to be considered
under Criterion No,
3,
i.e.
the facility
is located so as to
minimize the effect on the value of the surrounding property, the
Applicant presented no concrete information whatsoever.
In its
Brief, Respondents assert that the Applicant testified that the
City has considered
the effect of the new landfill on area
property values
and taken steps to minimize incompatibility.
(Respondents’
Brief,
p.
28,)
However,
in the testimony to which
the Respondents point,
the Director of Public Works’
states that
he can’t say whether the proposed landfill will affect the value
of
the adjacent property and that he
is not qualified to appraise
real estate.
(Record Section 2,1,
p.
50.)
The only “evidence”
offered on the question of property values
is Mr. Darling’s
admittedly non—professional evaluation implying that property
values will not be affected because a landfill
in the area “is
nothing new” and because the long term plan for the site
is that
it be developed as recreational land.
As stated earlier,
these
two considerations do not address the effect of the proposed
facility on the surrounding area.
In a similar
fashion the co—
owners of the adjacent property stated that they have plans
to
sell or develop their property and offered their opinions that
63-177
—8—
the closer proximity of
a new landfill will adversely affect the
value of this property,
(Record, Section 4.1,
pp.
84—85; Section
2.1, pp.
62,
75—76.)
All of this
is non—professional opinion,
unsworn testimony,
and does not rise to the level of “evidence”
upon which
the Council could base an adjudicative
determination.
We found nothing
in this record which constitutes
“evidence” on the question of property values.
Thus,
the
Councils’s finding that the site
is located
so as to minimize the
affect on the value of surrounding property, must be considered
to be without support
in the record,
Board Member
I, Dorothy M.
Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the above Opinion was submitted to me
on the
~
day of
b’)-?
~-~-k-c~L’
,
1985.
I11 ino
Pollut
Control
63-178
