ILLINOIS
POLLUTION
CONTROL
BOARD
December
30,
1982
WASTE
MANAGEMENT
OF
ILLINOIS.,
INC.,
Petitioner,
v.
LAKE COUNTY BOARD,
)
PCB 82-119
Respondent,
and
VILLAGE OF ANTIOCH,
Intervenor.
MR. DONALD
3.
MORAN, OF PEDERSEN
ANT)
HOUPT, APPEARED ON BEHALF OF
PETITIONER;
MR. THOMAS VOLINI, OF WASTE MANAGEMENT, APPEARED ON BEHALF OF
PETITIONER;
MR. GERALD
F. CALLAGHAN, ASSISTANT STATE’S ATTORNEY,
APPEARED
ON
BEHALF OF RESPONDENT;
MR. GARY NEDDENREIP,
ASSISTANT STATE’S ATTORNEY, APPEARED ON
BEHALF OF RESPONDENT; AND
MS. DONNA
R.
HENDERSON APPEARED ON BEHALF OF INTERVENOR.
OPINION AND ORDER OF THE BOARD
(by
I.
G. Goodman):
Pursuant to Section 40.1 of the Environmental Protection Act
(Ill.
Rev.
Stat.
1981,
ch.
111½,
par.
1001
et
~q.)
(Act) Waste
Management of Illinois,
Inc.
(Waste Management)
on October
1,
1982
petitioned this Board to review the decision of the Lake County
Board
(Lake County)
to deny siting approval for expansion of its
regional polhition control facility,
an existing landfill.
Also,
on October 1,
1982, Waste Management moved that Lake County be
ordered to clarify its decision denying approval and that hearing
be held within twenty—one
days.
On October
5,
1982 this Board
directed Lake County to file the record for review as required by
Section 40.1 of the Act.
On October 14,
1982 Waste Management’s
motion to clarify was denied and hearing was ordered to be held
within forty—five days of that Order.
With that same Board Order,
the Village of Antioch was granted the right to intervene.
On
October 18, 1982 Lake County moved to strike Waste Management’s
50-189
2
petition,
and
on October 21, 1982 Waste Management moved for
reconsideration of the Board’s October 14th Order.
Both
motions
were denied on October 27,
1982.
On October 26, 1982 Lake County
filed wit~this Board a certified record pertaining to its
decision.
The Section 40.1 public hearing before the Board was
held on November 23,
1982 at the Lake County Courthouse.
In
addition to the record filed by Lake County, and that established
at the November hearing,
the three parties filed briefs with the
Board on December
3 and 13, 1982.
Waste Management filed a Reply
Brief on December 17,
1982.
This appeal involves the expansion of an existing landfill
owned
by Waste Management, which is intended to handle domestic
and special, non—hazardous wastes.
Pursuant to Section 3(x)(2)
of the Act, such an expansion constitutes a new regional pollution
control facility, and therefore siting approval by the unit of
local government is necessary.
The existing facility, known as
the HOD landfill, is within the Village of Antioch’s (Antioch)
boundaries, whereas the expansion is located in an unincorporated
area of Antioch Township, Lake County.
Therefore, on May 28, 1982
Waste
Management
submitted
its
application
for
siting
approval
to
the
Lake
County
Board.
Notice
to
property
owners
and
the
published
public notice required under Section 39.2(b) of the Act had been
previously issued on May 14,
1982.
The statutory requirement that
these notices precede the application by fourteen days was waived
by Lake
County
when it rendered its decision.
(Lake County Rec.
Th09.)
Waste Management filed its application, consisting of
approximately six hundred pages of supporting information, data,
and
exhibits, and paid a filing
fee
of $8,000.
The filing fee and
application requirements had been established by County Ordinance
adopted on April 13,
1982.
(Id. 0866—0877.)
That same ordinance
included procedural provisions that such petitions be reviewed and
recommended by a
County
Review Staff and that the Section 39.2
public hearings be conducted by a Regional Pollution Control
Hearing Committee,
in this instance a
five
member panel appointed
by the twenty-six member County Board.
Twelve public hearings were held on the following days:
July 20,
21,
27,
29 and August 3,
5,
10,
12, 13, 18,
19 and 23,
1982.
Waste Management presented witnesses in support of the
proposed expansion
and
Antioch presented witnesses in opposition.
The public was allowed to cross—examine these witnesses and to
testify.
Both Waste Management and Lake County represented that
the hearings were well attended by the public.
These hearings,
concluded on August 23, 1982, produced a record of approximately
2,500 transcribed pages.
On September 7, 1982 a public hearing was held by the Hearing
Committee to consider the evidence and make a recommendation to
the full County Board.
The Hearing Committee recommended denial
1The excellent oganization of this extensive record is
commended
and
much
appreciated
by
the
Board.
on
3
of the expansion
site, which was supported by written reasons
(Id. 3609).
The Review Staff, on the other hand, had recommended
that siting he approved
(Id.
2122).
On September
14,
1982,
at
its regular meeting,
the full County Board by resolution denied
siting approval by a vote of 2i~2,
The resolution supporting
the
decision was premised in part on the attached Exhibit
A,
~hich
was the Regional Pollution Control Hearing Committee’s written
recommendation.
The proposed expansion is a 30.2 acre rectangular site
adjoining the HOD landfill, which
is approximately forty acres
in size and currently permitted by the Illinois Environmental
Protection Agency
(Agency)
as a sanitary and special waste land-
fill handling facility.
Both parcels of
land,
as well as a still
older,
abutting closed landfill of approximately twenty acres,
were acquired by Waste Management in 1975.
The proposed site’s
northern boundary
is Depot Street
(Little Silver Lake Road), and
north of that is vacant land zoned
for agricultural
use.
To the
east is a residential area,
where five homes are located within
1000 feet of the proposed site.
Southeast of both the proposed
and existing site is the Little Silver Lake Subdivision, where
there are 37 homes within 1000 feet of the site.
The southern
boundary of the proposed site abuts the existing facility and
to
the west is vacant land owned by Waste Management.
Further west
is
an industrial
subdivision and northwest is the Village of
Antioch.
The Village population
is approximately 4,440
persons,
Procedural Issues
As stated above,
the public hearing required under Section
40.1 was held on November
23,
1982.
Approximately twenty persons
attended,
but o~lyone citizen testified (Board Hearing 11/23/82
pp.
56 and 58),
No witnesses were present for any party.
Rather,
the
parties proposed that three documents he added to the record
before
the Board.
Waste Management sought to include
two
docu-
ments:
1)
a letter signed by the Mayor of Antioch, Raymond
B.
Toft, dated September
1,
1982 and addressed to the Lake County
Board members, and 2)
a transcribed portion of the September 14th
County Board meeting.
Lake County sought to include a letter
2The Board finds
it necessary to take official notice of
four
newspaper articles which described the then upcoming Board hearing.
Each of these accounts, published on November
1 and 22,
1982
in
the Antioch News and November
4 and 18,
1982
in the Antioch
~R2~er
contained erroneous information,
Contrary to the
information attributed to the Village Attorney,
the hearings held
by
the Board in these cases are open to the public and citizens
are
offered the opportunity to testify.
Furthermore,
the
Board,
not
its hearing officer,
renders the final decisions
in
this
type
of
appeal.
The Board~sown notice of this hearing was
noticed
as
a
~~4c
hearing.
50-191
4
written by Thomas Volini, counsel
to Waste Management, which had
been delivered to the Regional Pollution Control Hearing Commit-
tee’s chairperson on September 13,
1982 and distributed to other
County Board members on September 14,
1982.
The accuracy of
these documents was stipulated
in writing by all three parties.
Lake County and Antioch, however, objected to admission of two
documents offered by Waste Management.
Waste Management did
not object to its letter being
included.
The stipulation and
three documents were accepted into evidence by the Board’s
hearing officer that day
(Id.
pp.
19,
20,
23,
27 and
28).
In support of its offer Waste Management relied on
____
of LaSalle, et al. v.
Illinois Environmental Protection Agen~y,
PCB 81—10
(February 16,
1982) and Village of Hannover Park v.
County of Du Page,
et
al., PCB 82-69
(September
2,
1982).
Waste
Management argued that these documents constituted post-hearing
documents relied upon in the decision—making, and therefore must
be included in the record submitted to the Board, Lake County and
Antioch objected that there was no evidence that the letter was
relied upon and that the transcript was irrelevant and outside
the record to be reviewed.
Hanover Park was again relied on,
in
that the motives of the individual members were not properly
subject
to this Board review.
The
hearing officer’s ruling on both letters
is affirmed in
that both may have somehow influenced the County Board’s decision
making,
and should therefore be part of the record.
However, the
transcript is excluded from the record.
Section 39.2(d)
and
(e)
require the County Board to conduct public hearings, which develop
a record sufficient for purposes of a Section 40.1 appeal,
and to
put its decision in writing, specifying its reasons
in accordance
with the six statutory criteria contained
in Section 39.2(a).
Section 40.1(a)
requires the Board to consider the “written
decision and reasons for the decision...,
the transcribed record
of the hearing held pursuant to subsection
(d) of Section 39.2
and the fundamental fairness of the procedures used by the County
Board or the governing body of the municipality in reaching its
decision”.
The meeting to adopt the written decision
is not a
part of the Section 39.2 hearing process.
Therefore, unless
the
comments offered by individual County Board members prior to the
adoption of the written decision reveal “fundamental unfairness”
in the hearing or decision—making process, they are immaterial.
Having reviewed the transcript of the September 14,
1982 hearing,
the Board finds no such indication.
The transcript is therefore
excluded as immaterial.
At issue
is the standard of review applied by this Board in
considering the decision rendered by Lake County pursuant to the
authority granted
it in Section 39.2 of the Act.
Again, that
Section requires that the local unit provide a written decision
with reasons supporting the denial or grant of siting approval.
As
such,
this authority is essentially quasi—judicial, much like
that granted this Board in Section 35(a)
of the Act.
Therein,
50-192
5
the Board is
empowered
to grant or deny
variances, which must
he
accompanied by a written decision.
Characterized as a
quasi-judicial
action by the Supreme
Court in Monsanto ~
____
67 Ill,2d 276,
367 N,E,2d
684
(1977),
this decision—making
was subject
to the manifest
weight
standard of review,
367 N,E,2d at 689.
Since the local unit
of
government~s
action is simarly quasi~-judicial
in that it
is
empowered to grant or deny siting of new regional pollution
control
facilities,
the same standard of review is applicable.
Regarding
the imposition of conditions,
the Board notes
that
Section 39,2(e)
additionally and specifically requires that such conditions must
be ~‘reasonableand necessary to accomplish the purposes
of
this
Section...”,
once
they
are
determined
to fall
within
the scope of
authority granted to the county
or
municipality.
Waste Management argued that this Board,
as an
administrative
body charged with considering statewide
environmental
interests
as well
as reviewing the local unit’s decision,
has
broader
review powers than a judicial reviewing power,
i.e.
the courts.
Petitioner is correct.
The Board’s scope
of review encompasses
review of the record and decision,
and evaluation of the County
decision based on this record.
However,
the Board can
only review
the evidence to determine whether the six criteria
were
satisfied,
since
it is statutorily barred from accepting
new
evidence.
The
statewide interest is
in that this Board
assures that
in each case
satisfaction of the six criteria is uniformly achieved,
and that
the siting process
is fairly conducted,
Therefore,
although the
scope may be broader, the standard of review is
the same
as that
defined in the Monsanto decision.
Waste Management further argues that
this standard
should
not apply
since this Board
is statutorily
required to
hold a
public hearing, after which its hearing officer weighs the
credibility of witnesses.
However,
the Section 40,1 hearing has
been limited to introduction of evidence involving the complete-
ness of the record and the fundamental
fairness of the local
unit’s process.
New evidence and credibility only come into play
on issues never previously before a reviewing body.
This in no
way affects the Board~sreview as
to whether the six criteria are
satisfied.
The County Board Decision
General Considerations
As stated by the County in its brief, the County Board
decision does not contain the level of explanatory information
expected
by the Board as set forth in Hanover Park, ~pra,
and
~
Illinois,
Inc. v.Lake
Coun~
Board
of
Supervisors,
PCB
82—101
(December
2,
1982).
The County argues
that
it did not posess the recent Hanover Park decision at the
time of the County Board decision,
Rather the County relies upon
the Board~sdecision in Browg~~Ferriswhich stated that a
decision where the record demonstrates substantial compliance with
50-193
6
the Act will not be remanded.
The Board accepts the County Board’s
explanation and argument, and will therefore consider its decision
in light of the record presented.
The Board will not, however, rewrite the County Board’s
decision based upon arguments presented
in
the County’s brief.
The
County
Board’s decision speaks for itself and the Board will
not review issues or criteria not therein addressed,
In this
case the County argues that paragraphs
3 and
4 of the County Board
decision taken together constitute compliance with the Act with
regard to all six criteria set out in Section 39,2,
Paragraph
3
states “That the applicant had the burden of proof
as to each
of
the criteria set out in ch.111½,
§1039.1, Ill,
Rev.
Stat.”
(sic)
and paragraph
4 states that “That although the applicant presented
testimony and evidence on each of the statutory criteria,
that
evidence was rebutted
in part by the objector, Village of
Antioch”.
Paragraph
3 merely states that Waste Management had the burden
of proof
as to the criteria cited and paragraph
4 notes that the
evidence presented by Waste Management was rebutted
in part during
the hearings.
Neither of these two findings taken separately or
together are sufficient for Board review of all six criteria.
The Board will therefore limit its review
to the
three criteria
specifically addressed in the County Board decision,
i.e.,
relationship of the facility to the public health,
safety,
and
welfare,
the necessity of the facility to accommodate
the waste
needs of the area it
is intended to serve, and the compatibility
of the facility with the character of the surrounding area and
its impact on the value of surrounding property.
Public Health,
Safety,
and Welfare
Much of the County Board’s decision was based upon this
second statutory criteria.
Paragraph
5 of the decision cites
evidence that the proposed site is located too close to existing
public and private wells
in the area and too close to a residential
neighborhood.
Paragraph 2 states that existing sand lenses
in the
underlying geology and lack of sufficient number of soil borings
would jeopardize the public health, safety and welfare of the
residents in the area.
Paragraph
B states that leachate from the
existing facility was not used
in soil permeability tests and that
therefore none of the representations of Waste Management with
respect to the permeability of the soil underlying the proposed
site are reliable.
Paragraph 14 finds that the proposed inspection
and monitoring of the site is insufficient.
Paragraph 16 states
that Waste Management did not prove that the underlying aquifer
would be protected for all times,
With the exception of the last
part of paragraph
5 (too close to
a residential neighborhood),
all
of the above findings addressed the highly technical details of
the landfill design and construction.
The Board has previously
found in Waste Management of Illinois,
Inc.
v, Board of
Supervisors of Tazewell County,
PCB 82—55
(August
5,
1982)
and
Browning Ferris,
supra, that these highly technical
issues are
beyond the jurisdiction of the local authorities and are to be
50494
7
determined by the Illinois Environmental Protection Agency
(Agency).
The Board therefore rejects the above noted findings
as beyond the statutory authority of the County Board.
In paragraph
9 of its decision, the County Board
finds that
the legislative intent of Section 39.2 was to allow County Boards
to consider all aspects of landfill
siting considerations including
the geology of the site, effects of
leachate on the soils,
and all
other scientific factors that could affect public health,
safety
and welfare, citing the testimony of State Senator Geo—Karis.
With all due respect to Senator Geo—~ariswho was a co-sponsor of
the original
legislation, the Board
finds that notwithstanding the
Senator’s intention
in presenting the legislation,
the legislative
history as set forth by the Board in Waste Management and
Brownin~
Ferris,
supra,
indicates that the legislative intent at the time
6Vmal
adoption was to give exclusive jurisdiction of these
highly technical matters
to the Agency.
SiteNece
SSi
ty
Paragraph 10 of the County Board decision states that “...tf
the site location is denied there will remain 10,75 years for the
County or Waste Management to find another landfill site given
the
remaining capacities of existing landfill
sites serving the area”.
Clearly,
the County Board has stated that the proposed site
expansion
is not necessary to accommodate the waste
needs of the
area it
is intended to serve pursuant to paragraph
1 of Section
39.2(a)
of the Act.
Waste Management argues that its proposed expansion is
necessary to accommodate the area that
it
is intended
to serve.
A considerable amount of evidence was presented to the County
Board in support of this contention.
An expert witness,
Richard
Eldridge, testified that
in his opinion the expansion of the
landfill was necessary to meet the needs of the area
it is
intended to serve.
(County Board Hearing 7/20/82,
pp.
16—90.)
Mr. Bidridge’s opinion was based upon certain governmental reports
concerning licensed landfills and their projected lives, data
obtained from Waste Management concerning areas served by the
existing landfill site, and his opinion that landfills should be
located within a 15 mile radius of the area served in order to
minimize the cost of transportation to
a disposal site.
It was
his opinion that without the proposed expansion two other
comparable landfill sites would remain
in the area, one with
a
life expectancy of approximately 15 years and the other with an
expected
life of approximately
30 years.
A third landfill
apparently has a short term life expectancy of approximately
3
years and it was estimated that the existing landfill
has an
expected life of approximately
1 year.
Mr.
Eldridge also
testified concerning the entire area of northeastern Illinois.
Waste Management also argues that the Lake County staff
report
(Lake County Rec.
3510—3582) supports
Mr.
Eldridge’s
opinion.
The staff report notes that if the proposed facility
50-195
8
is not accepted, dislocation and redirection
of wastes
would
significantly impact the area.
The staff was of
the
opinion that
sending the material to the remaining two landfill sites would
result in
additional
expenses
and
that
the remaining landfills
would have a
shortened
life
expectancy.
The staff report was
based primarily upon information furnished by
the
application.
Both the County and Intervenor, Antioch, allege that Mr. Eldridge
and the staff’s
opinion
are
premised
upon
information
provided
by
Waste Management and are
therefore
entitled to less weight than
if the underlying information had been subject to cross
examination
or had been prepared independently.
The County on the other hand relies on evidence presented at
hearing by Alfred 3. Little, Chairman of Intervenor
Antioch’s
Landfill Investigative Committee.
Using information presented by
Waste Management and the Lake County staff,
Mr. Little prepared
an exhibit
(Antioch Ex,
70,
Id.
2486) purporting to show that the
waste needs of the area presently served by the Antioch site would
be accommodated by the aforementioned other two Waste Management
sites with a minimum life expectancy of at least 10 to 11 years
per site.
Mr. Little testified concerning the number of other
landfill sites and under cross examination admitted he was not an
expert hut had
merely
developed
the
exhibit
using the
evidence
previously presented in this matter.
His estimation of
10 to
11
years estimated life expectancy of the other two landfills should
the proposed Antioch expansion be denied was not challenged.
Although
very
simplistic
in
its
nature
and admittedly
developed with no expertise
in landfill
siting,
Mr. Little~s
presentation appears to the Board to go to
the heart of
the issue
presented by the statute.
Because this
is
a regional facility,
the county cannot ignore the scope of the area to be served.
For
example,
if the site is intended to serve to a significant degree,
a community or industry outside its boundaries, hut within the
intended area, the county must consider it,
However, the statute
also says a facility must be necessary to accommodate the waste
needs of the area
it is intended to serve.
It does not say
“convenient”.
And most importantly it does not say that land use
planning must be considered.
Mr. Little’s unrebutted presentation
indicates that at the present time there are two other landfill
sites available to accommodate the waste needs of the area and
that they will be available for ten years
in the future.
The
Board therefore finds that the decision by the County Board that
the facility is not necessary to accommodate the waste needs of
the area it is intended to serve
is not against the mainfest
weight of the evidence presented in the record.
Incompatibility and Effect on Value
In support of its contention that 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
(Section 39.2(a)(3)
of the Act), Waste
50-196
9
Management provided a number of expert witnesses and supporting
exhibits.
Mr.
3. Christopher Lannert, a landscaping and planning
expert,
testified concerning the compatibility
of
the proposed
expansion facility with the character of the surrounding area
(County Board Hearing,
7/21/82, pp.
12-102).
Mr. Lannert testified
that
in his opinion the proposed site would be compatible with the
characteristics of the surrounding area noting that the proposed
site adjoins the existing and operating landfill and is surrounded
by low intensity uses.
In the presentation he discussed road
access, prevailing winds, existing vegetation along the parameters
of the site,
a proposed screening berm along Depot Street,
additional berms during operation and closure of the landfill and
the proposed final configuration of the landfill subsequent to its
closure.
In addition he noted that there were few home sites in
close proximity to the proposed site.
Referring to applicant’s
Exhibits 16—21,
Mr.
Lannert described the vegetation using
photographs taken at close range
to the proposed site and discussed
the final effect of the proposed landfill,
specifically its
ultimate height, from the perspective of the site boundary line.
Mr.
Lannert explained that in addition to the existing
vegetation, screening berms and fences will
be erected
to hide the
operations of the proposed landfill during its life.
In addition,
exhibits were presented indicating the final use of the proposed
landfill
as open space.
Under intense cross examination by
Antioch, Mr. Lannert indicated that his testimony was based upon a
confined perspective, essentially from adjacent roadways, and that
Waste Management did not have control of some of the vegetation
that he had referenced.
Mr. Lannert testified that he had not
considered the proposed
landfill from the perspective
of Antioch
proper and when asked why he had not, he stated
“1 don’t find
landfills objectionable”.
(County Board Hearing,
7/21/82, p.
51.)
Under cross examination by citizens, Mr. Lannert testified
that although he only counted ten homes within a 500 foot radius
of the proposed site, there were considerably more homes just
outside the area he studied.
When queried as to why her did not
go beyond the area he studied,
he stated “the impact of existing
landfills is probably more closely felt by the existing homes in
the Little Silver Lake, so
I geared most of my study observations
along
the public roadways.”
In response to a question by Senator
Geo—Karis concerning the effect on values of the surrounding resi-
dences Mr. Lannert stated
“I do not feel landfills abate the value”.
In response to a citizen question concerning the economic potential
of the area with respect to recreational people Mr. Lannert stated
“I believe we will be able to observe it from many points, but it
I don’t believe it will
be objectionable.”
Robert
B. Rennebohm testified on behalf of Iritervenor Antioch
Rebbebohm is a landscape architect specializing
in community plan-
ning.
Considering only the residential
areas north and northwest
of the proposed site he concluded that the proposed landfill
would not be visually compatible with the character of that area,
Additional testimony was presented on behalf of Antioch by
Mr.
Robert Duchek (County Board Hearing, 8/19/82,
pp.
47
—
61).
50-197
10
Mr. Duchek testified that the landfill expansion would be
inconsistent with the adjacent local residential development.
In
particular he mentioned the probable noise and dust generated
would make residential use of the adjacent areas
less desireable.
On further cross—examination Mr.
Duchek testified there was some
question concerning the suitability of the soils
in
the adjacent
areas for the construction of homes.
Waste Management presented a number of witnesses concerning
the effect on property values by the proposed landfill extension.
Witness Robert P. Schroeder presented an appraisal report which he
had prepared
(Applicants Ex.
24, Lake County Rec.
22—26)
in which
he purported to revie~in detail site and area data including land
use, zoning, economic factors
arid relevant residential
sale and
resale data.
It was Mr. Schroeder’s opinion that beca~usethe
proposed landfill expansion would be compatible with
the
character
of neighboring properties,
it would not adversely effect their
value.
This opinion was based generally upon observation of the
surrounding area,
a study of resale values in nearby subdivisions
and the fact that the general area of the subject site is rural
in
nature.
Review of Mr.
Schroeder’s testimony indicates that the
market study
is based on a very low number of transactions, due no
doubt to the recent real estate market conditions,
The emphasis
was on consecutive sales within a subdivision rather than on a
comparison with other homes of like value not in the area of the
landfill.
Under questioning by a citizen concerning
the
sale
of
two identical lots, one by a dumpsite and one on open land,
Mr. Schroeder indicated that based on his study there would he
no adverse effect by the landfill and that neither one would sell
more quickly than the other.
Waste Management next presented Mr. William A.
McCann,
a
real
estate appraiser,
consultant and broker with experience in the
Metropolitan Chicago area
(County Board Hearing, 7/21/82, pp.
165—
174).
Mr. McCann based much of his testimony on Mr.
Schroeder’s
study and indicated that, after an initial impact experienced at
the time the landfill initiates operation, residences subsequently
have been sold and resold at roughly the same rate of appreciation
as homes more remotely located.
It was Mr. McCann’s opinion that
the proposed expansion facility would be compatible with the
character of the surrounding area and would not unduly depreciate
the value of the surrounding properties.
The Lake County Staff Report makes some interesting obser-
vations concerning the proposed facility.
The Staff considers
that the present existing landfill affects the
factual
context
of
the subject criteria.
This presumption by the County staff per-
meates their opinion as a whole and in particular with
in respect
both to the effect on property values and compatibility with
adjacent areas.
Their basic precept seems
to be that the damage
has already occurred.
50-198
11
Michael Warren,
a real estate broker testified on behalf
of
Iritervenor Antioch
(County Board Hearing 8/18/82, pp.
40—90).
It was
Mr. Warren’s opinion that market values in the adjacent
subdivision were progressively effected as the landfill operations
came closer to it.
In addition he indicated that the landfill has
a negative impact on property values
in the subdivisions because
of buyer reluctance to purchase property near the operation.
He
also indicated that he was unable to replicate Mr. Schroeder’s
trend analysis although he
apparently was able to find more
information than Mr. Schoeder had indicated.
In addition he felt
that the present landfill retarded potential subdivision growth
in its area.
Under cross—examination Mr. Warren indicated through
his answers that his attempt at performing
a trend analysis
concerning property values was probably of no more value than was
Mr.
Schroeder’s.
The mayor of Antioch, Raymond Toft, testified on behalf of
Intervenor Antioch concerning the proximity of the downtown area
to the proposed site (County Board Hearing 8/18/82,
pp.
22—38).
Mayor Toft testified concerning the size of a village and its
population and indicated there were roughly 200 business estab-
lishments inside the village limits and approximately 1600
residences.
He testified that the existing landfill was roughly
a third of a mile from the downtown area and that the proposed
site would be about a half mile from this area.
He indicated
that the Village Board of Antioch had voted unanimously to oppose
the siting of the landfill.
It was the Mayor’s opinion that the
growth pattern in the village would be to the east or
to the south
and that currently most of the new growth
is to
the
east.
In the
Mayor’s opinion the proposed
landfill expansion would
stop the
growth of the Village of Antioch to the east because of the
Fact
that the no one would
like to live next to
a landfill,
and that
it would not be practical
to extend village utilities
to the other
side of the landfill.
During cross—examination the Mayor testified
that one subdivision in the area of the landfill had rebuffed
attempted annexation by the city,
but that he had also received
complaints from the residents of that subdivision concerning
the
landfill.
Waste Management, during its presentation, made much of the
fact that the request herein is for the extension of an existing
landfill and therefore argued that many of
the issues concerning
the effects of the proposed expansion upon the surrounding
community are moot.
Certainly the existence
of
the landfill and
the experience gained in its operation over the years are properly
to be considered by the County.
However, with regard to the issue
of compatibility with the character of the surrounding area and
the
effect on the value of the surrounding property, expansion
must be considered in the same light as
a totally new facility.
There are two reasons for this holding, one of which
is
legal and
the other more practical
and philosophical
in nature.
The legal
reason for considering a landfill expansion
in the same category
as a new facility
is that the
legislature has
so specified.
50-199
12
Section 39.2(a) of the Environmental Protection Act
(Act)
addresses new regional pollution control facilities which are
defined
in Section 3(x)(2)
of the Act,
inter alia, as “the area of
expansion beyond the boundary of a currently permitted pollution
control
facility”.
From a reading of
the two sections of the Act
cited it
is clear that the legislature intended any
expansion
of
the physical boundaries
to be considered in the
same
manner
as
a
totally new facility.
The practical and philosophical standpoint
was
well stated
by Mr. William McCann,
one of Waste Management’s expert real
estate appraisors and consultants,
in that “...‘landfill sites are
temporary uses of land.”
Mr.
McCann goes on to say “They
ultimately return to the community,
usually for open recreation
purposes and people within the vicinity envision that that will he
a large expanse of land which will never be put to any other use,
other than the perpetual open space.
It may,
in itself, have a
favorable impact,
aside from the termination of the existing
landfill.”
(County Board Hearing, 7/21/82,
p.
202.)
It follows that the residents in the area of
the landfill
may well have looked forward to such an eventuality when they
purchased their property or have continued to live in the area
with such expectations.
Those same people must also be aware
that an expansion of the landfill might he proposed or that
indeed a new landfill might he proposed
in the area.
By the same
token the landfill operator must be mindful that the area around
the existing landfill might become incompatible with the expansion
of an existing landfill.
It therefore follows that the Board must
consider such an expansion as if it were
a totally
new
facility
with regard to the question of compatibility and
land values.
The
Board will 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.
Therefore,
the
potential of further damage due
to such a proposed expansion
is
a legitimate concern.
In regard to the issue of compatibility with the surrounding
area the evidence presented is generally divided into two cate-
gories.
Waste Management has testified as to the area immediately
adjacent to the proposed site.
i.e. within 500 feet.
The thrust
of Antioch’s testimony concerns the effect of
the proposed landfill
at a greater distance up to and including one half mile which
extends to the center of the Village of Antioch.
The first
question then is
at what distance from the proposed
site may one
still be considered in the surrounding
area.
It
is clear that
the effect on the surrounding area depends upon the size and shape
of the subject of concern.
Certainly the surrounding area of,
say,
an advertising sign would be different from that of a large
manufacturing facility or a tall building.
It would appear clear
that in this case a
30 acre mound with a height above grade of
70—90 feet would generate
an effect upon the surrounding
area
to
50-200
13
a
greater
extent
than
five
hundred
feet.
Without
addressing
precise measurements concerning this effect, the Board finds
that
at the very least the subdivisions near the proposed site will
he
affected and that the finished mound would probably be a major
land characteristic from the perspective of the business district
of Antioch.
Since the majority of
land in that area
is relatively
flat (certainly at least when compared to the landfill mound),
and since the area is generally considered a resort type area,
the
Board finds that the County Board’s decision that the proposed
landfill extension
is not compatible with the surrounding area is
not against the manifest weight of the evidence presented.
With respect to the issue of the effect on the value of the
surrounding property,
it appears that the analytical efforts on
the part of both Waste Management and Intervenor Antioch to
determine this issue were relatively ineffectual.
However, the
testimony of local citizens and the Mayor of Antioch coupled
with that of a local real estate broker tends to indicate that,
although there may be little continuing effect on values,
there
is
an. initial decrease
in value of the surrounding property
coupled with a chilling effect on development.
The initial
effect of the landfill site on the surrounding property was indeed
verified by Waste Management’s expert.
The Board therefore finds
that the Lake County Board’s decision on this criteria is not
against the manifest weight of the evidence presented.
Fundamental Fairness
Waste Management complains that the County Board’s decision
was primarily founded upon the objection of the organized group
of residents and property owners who utilized the public hearing
process to demonstrate their opposition and to influence their
legislative representatives
in this matter.
The Board will
acknowledge the interest of the citizens at the hearings and
their sometimes boisterous demeanors
The question here however
is whether or not procedures used were fundamentally unfair.
As
the Board stated in Hanover Park,
supra,
the motives of the County
Board members in reaEfiTi~TffëTrdecisionare not
a proper subject
of Board review.
The Board is not concerned with why the County
Board voted as
it did but rather whether its decision
is supported
by the record,
including its written reasons.
If the County Board
makes the correct decision based upon the record but is motivated
by political concerns, the decision is correct and the motiviation
is immaterial.
If the County Board makes the wrong decision based
upon the record with the most commendable motives, the decision
is incorrect and the motives are immaterial.
If Waste Management
had argued that it was
riot allowed to present evidence or was
somehow prevented from sufficient cross—examination, then the
Board would consider its claim of fundamentally unfair procedures.
The only argument that Waste Management presents however,
is that
of political motivation which,
if true,
will be cured upon Board
review of the record.
This Board, being a state—wide agency,
is
certainly immune from local political considerations and therefore
makes its decisions based only on the record before it.
50-201
14
The
Board
concludes
that
the
record
herein
supports
the
denial of site approval of the proposed Waste Management
landfill
extension.
The Board will therefore affirm the site
approval
denial.
This
Opinion
constitutes
the findings of
fact
and
the
conclusions of law of the Board in this matter.
ORDER
The September 14, 1982 denial of the Waste Management,
Inc.
proposed landfill in unincorporated Antioch Township by the County
Board of Lake is hereby affirmed.
IT IS SO ORDERED.
Board Chairman 3. Dumelle concurred.
I,
Christan L. Moffett,
Clerk of the Illinois Pollution
Control Board, hereby certify that the above Opinion and Order
was ~adoptedon the
40”
day of
‘~~~iJ)—~
,
1982 by a vote
of ‘.~-3
p
Christan
L. Mof~’~t,Clerk
Illinois PollutiS~Control Board
