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~.

STATEMENT

FOR THE RECORD

(by 3.

Anderson):

Given

the absence

of

a Pollution Control Board

(Board)

opinion

in

this

case from which

concurring

or dissenting opinions

can flow,

the following statement

summarizes our reasons for our

vote.

We voted

to affirm,

under

the

Board~smanifest weight review

standard,

the

City of Urban&s

(Urbana) approval

of the

suitability of

its own

site location because we felt that problem

areas

in

this

record were of

insufficient severity to cause the

Board to hold otherwise,

However,

there are three areas

that are of particular

concern:

a)

the Hoesmans~assertion that

public participation in

the SB 172

(P.A,

82~682)’hearing was

diminished particularly

because

of confusion caused by Urbana~s

holding

of

a

special use

zoning

type hearing, pursuant to local

ordinance,

four days

before

the SB 172 hearing;

b)

the

Hoesmansv assertion that Urbana

in its

role

as applicant and

in its

role as decision—maker did

not

properly address or consider

Criterion No.3

of Section

39.2(a)

of the Environmental Protection

Act

(Act); and

(C)

the

lack of

sworn testimony at Urbana~sSB

172 hearing

(an issue not

raised by

the Hoesmans),

We will address these

issues

separately.

~

two hearings

For

clarity,

three public meetings

were held regarding this

facility:

an informational meeting

held

on August

22, 1984,

a

special

use zoning hearing held on September

6,

1984,

and the SB

172

hearing required by Section 39.2 of the Act

for

a new

regional

pollution control facility held

on September

10,

1984.

At the

Board~shearing the petitioners

primarily focused

63-181

---

—2—

latter two hearings as

the cause of confusion, alleging that many

thought

that the first hearing was an SB 172 hearing.

While

there may have been some confusion,

we were not persuaded that

Urbana’s actions were fundamentally unfair.

The hearings were

separately noticed, and Urbana was obviously operating on a “fast

track” due

to

the filling up of its existing landfill

by May,

1985.

There

is nothing

in the Act that precludes outright the

holding

of extra public meetings concerning

a facility as long as

Urbana’s

SB 172 decision flows from the exclusive SB 172 process

see

Section 39.2(g) of the Act).

In this case,

there was no ex

parte situation, since

t~u

public had been notified of

the nature

of

the meeting

~~nd

invi

ci

to participate.

Urbana asserted that

the special use hearing was held

to be fair and to follow

tradition (Board

R. 59)~

It might also be noted

that Urbana

recognized

that the site could

be utilized as

a non—regional

facility,

:L.e.

used solely for waste collected within its

boundaries,

in which case Urbana’s local zoning

and land—use

ordinances would form

the basis

for its approval rather than

Section 39.2.

In any event,

the Board record indicates that at

least some of

the confusion was caused by communications from

Mrs. Hoesman, and

that

sonic of those who testified on this

issue

at Board hearing had attended neither hearing or were unwilling

to state that their lack

of attendance was caused by confusion.

(Board

R.

39,

42,

43,

50.

check)

note

Urbana’s note

Criterion No.

3 allegedly inadequately addressed

While Urbana as applicant might have better addressed

Criterion No.

3.,

and while Urbana

as decision—maker narrowly

construed Criterion No.3

in its resolution of approval, this

record does not support

a reversal of the City Council on this

basis.

Criterion

No.

3 reads

in

applicable part

as follows:

“The county board of

the county of the governing

body of the municipality, as determined by

paragraph

(c)

of Section

39 of this Act,

shall

approve the site location suitability for such new

regional pollution control facility only

in

accordance with

the following criteria:

3.

the facility is located

so as to minimize

incompatibility with the character

of the

surrounding area and to minimize the effect on

the

value of

the

surrounding property;

What

is expected of the applicant

in addressing, and the

decision—maker

in

weighing, Criterion No.3 may arguably be

difficult to ascertain

with

precision, but what

is not acceptable

is more ciear~ Section ~9.2(g) not only confines SB 172

decisions to the six

crite~::Lalisted

in 39.2(a), but also

83-182

---

specifically precludes the application of

“local zoning or other

local

land use requirements.”

Also,

Criterion No.

3 does not

state

that the facility location must

be compatible or without

effect,

but rather,

that incompatibility

and effects be

minimized.

*

One difficulty with Criterion

No,

3

is the

issue of how much

of the

surrounding area or property

is

to

be

addressed.

Urbana

as

applicant pointed out the existence

of the old and recent

landfill

areas,

the mobile home parks,

and junk and salvage

industries

in tIe more Luuediate area

as well as

as

a sewage

treatment plant, :eside~eeand

a wooded area

and the rather

unchanging

nature of dde urea over

recent decades,

However,

the

Urbana

City Council ae decision maker

focused only on property

adjacent

to the propoeed facility in

its explanation of

its

approval

of Criterion bo~ 3,

i.e.

the

landfills on two sides and

the row

crop land on tIe third side

of the triangular—shaped

piece

which

is the expension area

itself.

It should be noted

that the

triangular—shaped

10 acres of

land

at issue here was unused, except

in part as

a borrow pit

that

had been filled with water,

No

one disputed that

it had

been

a

haven for

rats and skunks,

at

least until

it was drained

apparently

in preparation for the landfill

construction.

At

Urban&s hearing

the design

engineer

testified that a 15

foot berm

will be constructed so as

to screen the landfill and

equipment

from view, act as

a noise

barrier,

and provide

a

windbreak

against blowing litter,

(R.

22—27, Exh.

29).

The

Second

District Appellate Court has

already accepted this type of

testimony as germane to Criterion No,

3,

in

E.

&

E, Hauling,

Inc.

v.

Pollution Control Board, et al.,

71 Ill,

Dec.

587,

457 N.E.

2d,

555 (1983),

That court also did

not construe Criterion No.

3

as

precluding

the presence

of close—by

residential

areas or other

land

uses,

Urbana did not utilize a real

estate appraiser but,

instead,

relied

upon the minimizing effects noted

above, historical trends

showing

that the use of the site as

a landfill over many decades

has not

hindered the development

of the

mobile homes and other

uses,

and the agricultural buffer zone

which was considered

sufficient,

even though

it puts landfill

activities

in somewhat

closer

proximity particularly to the

Hoesman’s mobile home

park.

The Hoesman& believed that the

facility would have an

*Section 39,2(a)

uses both”site”

and “facility.”

See

Section

3(dd)

of the Act for the distinction

between site and

facility, which

in some cases can be an important

distinction.

In

this case,

however,

there appears

to

be no other place

left on

the

120 acre site for the

10 acre facility

to be located.

(Urbana R,35).

63-183

---

effect

on their property values, that even

the

1 and 1/2 to

4

years

additional landfill activity was too

much,

and that it

would

frustrate their intent

to develop

their agricultural land,

(zoned

as R—4, for multiple family dwellings

but requiring

special

use approval,)**

As noted earlier,

local zoning and

other

land use requirements cannot apply

in SB 172 site location

decisions.

The actual

use of the property

in the surrounding

area

is the focus,

It should also be

noted that Urbana’s

resolution,

in part,

used a bootstrapping

rationale found

unacceptable in ~

Control

Board, No~83—166,

2d Dist App, May

8,

1984.

Additionally,

the City Council referenced

in

its resolution

only

~j~en~j

property, which

is an

overly narrow view of

Criterion

No.

3.

However, any deficiencies

in Urbana’s rationale

in

its

resolution of approval is not

controlling.

The appellate

court

construed Section 39,2(c), which

requires a written

decision

“specifying

the reasons

for

the

decision” as applying

only

to statements accepting or rejecting

the criteria,

rather

than

such explanations reflecting

their

mental process.

In E

& E

~

~

slip op.

at 47,

the Court

held that “Rather, the

County

Board need only indicate which of the

criteria,

in its

view,

have

or have not been met, and this will

be sufficient

if

the

record supports these conclusions

so that

an adequate review

of the

County Board~sdecision may be made.”

While Urban&s

record

is thin

regarding Criterion No.

3, we

do not

believe,

under

a manifest weight

review standard, Urbana

can

be

reversed,

We particularly feel

that the use of

an expert

in real

estate appraisal,

while potentially

helpful,

is not

required.

The facility, during

its active

four year

or less

life,

will indeed bring landfill activities

in closer proximity

to the

Hoesmans~ farmland and mobile

home park.

Of course, when

any

landfill

is located

it usually results

in closer proximity to

land

occupied by people who use their

land for other purposes.

We do

not believe that this record

demonstrates inherent

incompatibility, even if Criterion No,

4 allowed such

a

determination.

We do not feel this

record supports

a holding

that

Urbana erred.

At the outset,

we believe that Urbana

should have required

sworn

testimony.

Section 39.2(d)

requires

a record sufficient to

form the

basis

for appeal and the appellate

court has held that

**The Hoesmans also alleged that the drainage

of the pit

drove

the animals

to their mobile home park,

threating

the

residents.

Urbana resolved to eradicate the

problem rather than

dispute the allegation.

63-184

---

“in hearing and deciding

on

petitioner’s application the

County

Board was engaging

in adjudication

.

.

.

“

(E

&

E Hauling,

supra,

slip op.

at

17).

Sworn

testimony by tradition and

practice has been a concomitant part of adjudicatory

proceedings.

However,

in this proceeding we believe the error

was not fatal.

The testimony of the applicant consisted

primarily of a presentation

and

explanation

of the certified

application,* the

contents of which

can stand on its own

merits.

It was announced

at

the

start

of the hearing

that

testimony would

be

unsworn

and there has been no allegation or

indication

that

the content

of

the hearing or testimony given

would have

been tLfle~ent.

Jthough

they were free to do

so, the

participants did

not ieal!y

neallenge the accuracy of each

other’s exhibits,

presentations or

factual statements

(except for

some “best guess”

estimates

concerning distances)

but, rather,

disagreed concerning

their opinions

and beliefs

as

to whether the

application should

be

approved.

In this case,

it appears that

any harm resulting

from the lack

of sworn testimony was

negligible.

While

the Board

can

act upon fundamental

fairness

issues without

the

parties

raising them,

in this case we do not

agree

that it should do

so.

We also note that,

if the lack of

sworn testimony were

held to

he

an unacceptable flaw, we do not

feel it would be appropriate

to

reverse on this basis remand

would be the proper

remedy under

such circumstances because the

hearing record required

by Section

39.2(d)

would thus be rendered

insufficient

to comply

with that

section.

(However, we do not

believe

it would be

productive

to do

so.)

It should also be

recognized that the statute does not

explicitly

require sworn testimony and

that neither the Board nor

the courts have

previously

addressed this

issue on appeal.

Added

to this

is the fact

that the use

of

sworn testimony

is unusual

in

municipal and county

board proceedings,

even including zoning

proceedings where

hearings

era required.

In short,

this

is

a

first

time,

good faith error.

This constitutes

our statement

of reasons.

~jZ&2?2~4

~

r~_-~

G.

Anderson

3. Theodor

Meyer

*The fact that the

affirmation

actually took place

a few

days after

the hearing

is not in

our view,

of serious

consequence

-

63-185

---

—6—

I, Dorothy M. Gunn,

Clerk of the

Illinois Pollution Control

Board hereby certify that

the above

Statement.~forthe Record was

submitted on the

/5t~l

day of

__________________,

1985.

~

Dorothy

M.

unn, Clerk

Illinois Pollution

Control Board

63-186