1~ECE1IVE~
BEFORE THE
ILLINOIS POLLUTION CONTROL
BOATh~RK’S
OFF!CE
SEP
1
2
2003
CITY OF
KANKAKEE,
)
)
Petitioner,
)
)
v.
)
)
)
COUNTY OF KANKAKEE, COUNTY
)
BOARD OF KANKAKEE, and WASTE
)
MANAGEMENT OF ILLINOIS, INC.,
)
)
Respondents.
)
MERLIN KARLOCK,
Petitioner,
V.
COUNTY OF KANKAKEE, COUNTY
BOARD OF KANKAKEE, and WASTE
MANAGEMENT OF ILLINOIS, INC.,
Respondents.
MICHAEL WATSON,
Petitioner,
V.
COUNTY OF KANKAKEE, COUNTY
BOARD
OF KANKAKEE, and WASTE
MANAGEMENT OF ILLINOIS, INC.,
Respondents.
STATE
OF
ILLINOIS
PCB
03-03-1
25PoI!ution Control Board
(Third-PartyPollution Control
Facility Siting Appeal)
PCB 03-133
(Third-Party Pollution Control
Facility
Siting Appeal)
PCB 03-134
(Third-Party Pollution Control
Facility Siting Appeal)
PCB
03-135
(Third-Party Pollution Control
Facility Siting Appeal)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
KEITH
RUNYON,
)
)
Petitioner,
)
)
V.
)
)
COUNTY OF KANKAKEE, COUNTY
)
BOARD OF KANKAKEE,
and WASTE
)
MANAGEMENT OF ILLiNOIS, INC.,
)
)
Respondents.
)
DJM
374153
vi
September 12,2003
NOTICE
OF FILING
TO:
See Attached Service List
PLEASE TAKE NOTICE that on September
12, 2003, we filed with the Illinois
Pollution Control Board, the attached WASTE MANAGEMENT
OF ILLINOIS,
INC.’S
MOTION TO RECONSIDER
in the above entitled matter.
Donald J. Moran
Lauren Blair
PEDERSEN & HOUPT
Attorneys forPetitioner
161
N. Clark Street
Suite 3100
Chicago, IL
60601
Telephone:
(312) 641-6888
ILLiNOIS, INC.
One ofIts At7fieys
DJM
374153
vi
September i2, 2003
PROOF OF SERVICE
Victoria L.
Kennedy, a non-attorney, on oath states that she served the foregoing WASTE
MANAGEMENT
OF ILLINOIS,
INC.’S
MOTION TO RECONSIDER
on the following
parties via hand delivery on September
12, 2003:
Ms. Dorothy M. Gunn,
Clerk
Illinois Pollution Control Board
James R.
Thompson Center
100 West Randolph Street, Suite
11-500
Chicago, Illinois
60601
Bradley Halloran, Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street,
Suite 11th Floor
Chicago, Illinois
60601
and on the following parties via first class mail,
postage prepaid in an envelope correctly addressed and
placed in the mail depository at 161 North Clark Street, Chicago, Illinois
on or before 5:00 p.m. on
September
12, 2003
Jennifer J.
Sackett
Pohlenz, Esq.
Querrey & Harrow
175
W. Jackson Boulevard,
Suite 1600
Chicago, IL 60604
Kenneth A. Leshen, Esq.
One Dearborn Square, Suite
550
Kankakee,
IL 60901
(815)
933-3397
(fax)
George Mueller, Esq.
501
State Street
Ottawa, IL 61350
(815)
433-4913 (fax)
Keith Runyon
1165
Plum Creek Drive, UnitD
Bourbonnais, IL 60914
(815)
937-9164 (fax)
Elizabeth Harvey, Esq.
Swanson, Martin & Bell
One IBM Plaza
Suite 2900
330 North Wabash
Chicago, IL 60611
L. Patrick Power, Esq.
956 North Fifth Avenue
Kankakee, IL 60901
(815)
937-0056 (fax)
Charles F. Heisten, Esq.
Richard S. Porter, Esq.
Hinshaw & Culbertson
100 Park Avenue
P.O. Box 1389
Rockford, IL
61105-1389
(815)
963-9989 (fax)
Victoria L.
Kennedy
/
DJM
374153
vi
September
i2,2003
RE
CE
~
V
ED
CLI~RK’S
OFFICE
SEP
122003
BEFORE
THE
ILLINOIS POLLUTION CONTROL BOI~&~E
OF
ILLINOIS
Pollution Control Board
MERLIN
KARLOCK,
Petitioner,
V.
COUNTY OF KANKAKEE, COUNTY
BOARD OF KANKAKEE, and WASTE
MANAGEMENT OF ILLINOIS, INC.,
Respondents.
MICHAEL WATSON,
Petitioner,
V.
COUNTY OF KANKAKEE,
COUNTY
BOARD OF KANKAKEE, and WASTE
MANAGEMENT OF ILLINOIS, INC.,
Respondents.
CITY
OF KANKAKEE,
)
)
Petitioner,
)
)
V.
)
)
)
COUNTY
OF KANKAKEE, COUNTY
)
BOARD OF KANKAKEE, and WASTE
)
MANAGEMENT OF ILLINOIS, INC.,
)
)
Respondents.
)
PCB 03-125
(Third-Party Pollution Control
Facility Siting Appeal)
PCB 03-133
(Third-Party Pollution Control
Facility Siting Appeal)
PCB 03-134
(Third-Party Pollution Control
Facility Siting Appeal)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
373763.5
KEITH
RUNYON,
)
)
Petitioner,
)
PCB
03-135
)
v.
)
(Third-Party Pollution Control
)
Facility Siting Appeal)
COUNTY
OF
KANKAKEE,
COUNTY
)
BOARD
OF
KANKAKEE,
and WASTE
)
MANAGEMENT OF ILLINOIS,
INC.,
)
)
Respondents.
)
WASTE MANAGEMENT OF ILLINOIS, INC.’S
MOTION TO RECONSIDER
Respondent WASTE MANAGEMENT OF ILLINOIS, INC.
(“WMil”),
by its attorneys,
Pedersen & Houpt and pursuant to Section
101.520 and 101.902 of the illinois
Pollution Control
Board (“Board”) Procedural Rules (“Rules”), moves the Board to reconsider and reverseits
ruling
in
the Opinion
and Order entered on August 7, 2003
(“Opinion”) that one property owner was not
properly served.
In support thereof,
WMII
states as follows:
1.
In its
Opinion’, the Board vacated the decision ofthe Kankakee County Board
(“County Board”), which granted site location approval for the expansion of a landfill owned and
operated by WMII, on the grounds that
WMJI
failed to properlynotify one
out of seventy-five
property owners, BrendaKeller,
in accordance with Section 39.2(b) ofthe illinois Environmental
Protection Act (“Act”).
Although the evidence in the record established that
WIIVifi
made five
separate attempts to serve Mrs.
Keller in person, posted notice to the Kellers’ residence and sent
five separate notices to the Kellers via mail, the Board held that
“the Act envisions
two and only
two types of service:
personal or certified mail return receipt requested.”
(Slip op. at 15).
Because the Board determined that Mrs. Keller did not receive notice by personal service or
certified mail, the Board ruled that the County Board lacked jurisdiction to review and decide
1
References to the Opinion will be cited as “(Slip op.
at
_).“
373763.5
2
WMILs
application for site location approval.
2.
The Board’s decision is based upon its erroneous construction of Section 39.2(b).
The Board’s strict interpretation of Section 39.2(b) is unsupported by both the statutory language
and the adjudicatory decisions construing that language.
In addition, the Board failed to
recognize that the question of whether Mrs. Keller was properly served was an issue of fact, for
which the manifest-weight-of-the-evidence standard is
the proper standard of review.
Rather
than apply the manifest weight standard to its review of this factual issue, the Board incorrectly
reviewed this question
de novo.
I.
THE
BOARD ERRED
BY
STRICTLY CONSTRUING THE
NOTICE
REQUIREMENTS
OF SECTION 39.2(b) OF
THE
ACT CONTRARY TO
THE
LEGISLATIVE INTENT
3.
The Board misconstrued the plain language of Section 39.2(b) by holding that its
notice requirements can only be satisfied by personal service or service via certified mail return
receipt requested.
The Board’s overly restrictive interpretation of Section
39.2(b) runs counter to
its plain language
and the legislative
intent that the Act be liberally construed so as to effectuate
its purposes.
415
IILCS
5/2(c).
4.
While the Board believed that it must strictly construe the notice requirements to
be limited
to personal and certified mail
service, well-established rules of statutory construction
require theBoard to
give effect to
the legislature’s intent.
In re Marriage ofHasabnis,
322
111.
App.
3d 582, 594-95, 749 N.E.2d 448, 458 (1st Dist.
2001).
The best indicator oflegislative
intent is
the plain
and ordinary meaning of the statutory language, and every word or phrase
should be given a reasonable meaning within the contest of the statute.
Id.
The Board may not
engage in Iockstep literalism where such a restrictive interpretation would lead to absurd or
unjust results not reasonably presumed to
have been contemplated by the legislature.
Helland v.
373763.5
3
Larson,
138 III. App. 3d
1, 5-6, 485 N.E.2d 457, 459-60 (3d Dist.
1985).
5.
Neither the statutory language nor the legislative intent of Section 39.2(b)
suggests, must less establishes, that notice requirements are to be strictly construed.
Indeed, both
the Board and illinois courts
have consistently refused to
strictly construe Section
39.2(b) when
doing so would countervene its true purpose.
See
City of Columbia v.
County ofSt.
Clair,
PCB
85-177, 85-220, 85-223 (April 3,
1986) (refusing to construe Section 39.2(b) to
require proofof
actual receipt ofnotice);
Ash
v. Iroquois County Board,
PCB 87-29 (July
16,
1987) (Section
39.2(b) permits notice by certified mail, even though certified mail not authorized in statute);
Daubs Landfill, Inc.
v.
Pollution Control Board,
166 Ill.App.3d 778, 520 N.E.2d 977
(5th Dist.
1988) (notice sufficient despite defect in legal description);
Waste Management ofIllinois, Inc.
v.
Village ofBensenville,
PCB 89-28 (August
10, 1989) (sufficiency of the notice determined by the
timeliness of the mailing, not the date on which the property owner signed the mail receipt);
DiMaggio v. Solid Waste Agency ofNorthern Cook County,
PCB 89-138 (January 11,
1990)
(timely and diligent attempts to obtain service of notice, as opposed to proof of actual notice, is
sufficient to comply with Section 39.2(b));
Ogle CountyBoard
v. Pollution Control
Board, 272
Ill. App.3d
184, 649 N.E.2d 545, 554 (2d Dist.
1995)
(purpose of statute may permit constructive
notice);
ESG Watts, Inc.
v. Sangamon County Board,
PCB 98-2 (June
17,
1999) (Section 39.2(b)
can be met through constructive notice).
6.
Moreover, the plain language of the Act does not, contrary to the Board’s ruling,
mandate that “service on
property
owners must be
effectuated using certified mail return
receipt requested or personal service.”
(Slip op.
at 15).
Section 39.2(b) provides that “the
applicant shall cause written notice of such request to be served either in person orby registered
mail, return receipt requested....”
415 ILCS 5/39.2(b).
Thus, the statutory language
simply
373763.5
4
requires applicants to
cause notice to be
served by one or two methods: in person or by registered
mail.
7.
The legislature did not intend that personal service and registered mail would be
the only means by which notice may be caused to
be served.
The purpose ofthe notice
requirement is to place potentially interested persons on inquiry of the siting request and the
public hearing, which is
the only opportunity for public comment.
See Wabash
& Lawrence Co.
Taxpayers v. Pollution Control Board,
198 Ill. App. 3d 388,
555
N.E.2d 1081,
1084 (5th Dist.
1990) (notice in compliance with Act
that puts interested persons on inquiry is sufficient to
conferjurisdiction);
Kane County Defender v. Pollution Control Board,
139 ill. App. 3d 588,
487 N.E.2d 743, 746
(2d Dist.
1985) (notice requirements ofSection 39.2(b) arejurisdictional
because public hearing is most critical stage of siting process and present only opportunity for
public
comment).
Notice that places potentially
interested persons on inquiry satisfies Section
39.2(b), irrespective of the specific method of service. If an
applicant is able to show actual
service ofnotice through any means, the legislative purpose of Section 39.2(b) has been satisfied.
As such, evidence of actual notice by posting, certifiedmailing orregular mailing satisfies
Section
39.2(b).
Therefore, Section
39.2(b) cannot be interpreted to
prohibit methods of service
other than personal orregistered mail, because to do so
would create an absurdity.
A potentially
interested person who received timely notice by certified mail, regular mail orpersonal delivery
(posting)
would be deemed not to have been properly notified ofthe application.
Such a result
contravenes both the intent of Section 39.2(b) and common sense.
8.
Furthermore, in view of the ease with which opponents could defeat
a local
government’s jurisdiction to consider an application by evading service or simply by making
herself unavailable, the purpose ofSection 39.2(b) is best accomplished by requiring applicants
373763.5
5
seeking to site a pollution control facility to undertake appropriately reliable and diligent efforts
to cause notice of the request to be served on surrounding property owners.
City of Columbia,
slip op.
at 13;
Village of Bensenville,
slip op. at 6;
DiMaggio,
slip op.
at 10;
ESG Watts,
Inc.,
slip
op.
at 9.
Therefore, under the proper construction, providing notice through posting notice and
regular mail complies with
Section 39.2(b).
9.
Indeed, the plain language of Section 39.2(b) establishes that posting is an
acceptable method of service.
Section 39.2(b) provides that “applicants shall cause written
notice to be serve in person.”
This is not synonymous with the term “personal service.”
The
term “personal service” refers to the person being served, whereas the phrase “cause written
notice to be
served in
person” refers to the person doing the serving.
See Reynolds v.
City of
Tuscola,
48 Ill. 2d 339, 270 N.E.2d415
(1971) (“personally serve” refers to the person doing the
serving, and “personal service” refers to the person being served).
Causing notice to be served
“in person”
is not limited to
attempts at personal service.
It includes any other reliable method of
delivering the notice in person, including sending a process server to post notice to a property
owner’s residence
“in person.”
Greene v. Lindsey,
456 U.S.
444 (1982) (posted notice is reliable
means of providing notice).
10.
Moreover, Section
39.2(b) permits service by regular mail, in
addition to
registered mail and certified mail.
The Board has already expanded the type of mailed service
permitted to include service ofnotice via certified mail return receipt requested.
Ash,
slip op.
at
7.
Given that regular mail is
a reliable method ofproviding notice,
Montalbano
Builders, Inc.
v.
Rauschenberger,
2003 Ill App.
LEXIS
949 at *3
(3d Dist. July 23, 2003), evidence of actual
service via regular mail should be held to satisfy Section 39.2(b).
11.
The Board’s overly restrictive interpretation would enable objectors to use Section
373763.5
6
39.2(b) as a mechanism to upset the local
siting process by engaging in tactics to frustrate
attempts at those two types of service.
Such a result would be manifestly unjust to applicants and
is not consistent with
Section 39.2(b).
ESG Watts, Inc.,
slip op.
at 9.
Nor could the legislature
have intended that a property owner with
actual notice but not through personal or certified mail
service would be able to
defeat jurisdiction, whereas an applicant who merely presented returned
certified mailing receipts
that were stamped “unclaimed” would obtain jurisdiction.
Clearly,
Section 39.2(b) should not be construed to bring about such an absurd result.
12.
In this case,
WMIH
actually served notice on Mrs. Keller in accordance with
Section 39.2(b) through posted service and mailed service.
The notices that
WMIIT
sent to Mrs.
Keller via mail were
never returned.
While IVfrs. Kellercontended that she never actually saw
the posted notice,
such flat denials are insufficient.
See Montalbano Builders, Inc.,
2003 ill
App. LEXIS 949 at *3~The fact that
WIVifi actually caused notice to
be served on Mrs.
Kellerby
mail and by “in person” posting to her residence,
WMII
satisfied the notice requirements of
Section 39.2(b), and the Board’s ruling to the contrary was erroneous and should be reversed.
II.
THE BOARD
ERRED IN ITS
APPLICATION OF
THE DOCTRINE
OF
CONSTRUCTIVE NOTICE
13.
In addition to actual service, Mrs.
Keller was also constructively served.
However, the Board misapplied the doctrine ofconstructive notice.
First, the Board incorrectly
stated that the concept of constructive notice was enunciated in
ESG Watts, Inc.,
and was nothing
more than dicta.
(Slip op. at
16).
In fact, the doctrine of constructive notice
was announced in
City of Columbia
and has been recognized as binding precedent in subsequent Board and illinois
court decisions.
See eg.,Ogle County,
272 Iii. App.
3d at
195, 649 N.E.2d at 553;
DiMaggio,
slip
op. at 9-10.
14.
Second, in determining whether Section 39.2(b) has been satisfied through
373763.5
7
coristmctive notice,
the Board neglected to look to whether the applicant’s efforts to serve notice
were sufficiently timely and diligent to reasonablyexpect receipt ofnotice prior to the
14-day
deadline.
City of Columbia,
slip op. at 13;
see
also Village of Bensenville,
slip op. at 6;
DiMaggio,
slip
op. at 9-10.
The Board focused its analysis on whether WIVifi mailed Mrs. Keller
notice via certified mail, rather than
whether WMII’s attempts
to cause notice to be
served on
Mrs. Keller were sufficiently timely and diligent.
(Slip op. at 16).
Because the record did not
show that Mrs. Keller was sent notice via certified mail, the Board ruled that it could not find that
she had constructive notice.
(Slip op. at
17).
15.
To support its ruling, the Board reasoned that all of the cases it reviewed on the
concept of constructive notice involved property owners who were at least sent notice via
certified mail, even though they did not timelyreceive the mailed notice.
(Slip op. at 16-17).
However, the cases to which the Board referred in no way limited the doctrine ofconstructive
notice to apply only in
cases where the applicant attempted notice via mailing.
In
ESG Watts,
Inc.,
the
Board reviewed the issue ofwhether an applicant’s unsuccessful
attempts to
serve notice
on certain property owners in
person were nonetheless sufficient to constitute constructive notice.
Although the Board ultimately held that the doctrine ofconstructive notice was not applicable in
that case because the attempts at in person service took place after the deadline, the Board
reached its conclusion after properly analyzing the timeliness of the applicant’s efforts to serve in
person notice.
ESG Watts, Inc.,
slip. op at
10.
16.
As
such, the Board
should have analyzed the issue ofwhether iVirs. Keller
received constructive notice ofWMILs application by looking at whether WMJT’s attempts to
cause service of notice were sufficiently timely and diligent.
By failing to do so, the Board’s
ruling that WMII did not satisfy Section 39.2(b) through constructive notice was erroneous.
373763.5
8
III.
THE BOARD APPLIED THE WRONG LEGAL STANDARDS IN
REVIEWING
WHETHER
WMII
COMPLIED WITH SECTION 39.2(b) OF THE ACT
17.
The Board applied the incorrect
de novo
standard of review to the County Board’s
factual determination that Mrs. Keller was served notice as required by Section 39.2(b).
The
Board stated that the issue of “whether or not the County Board had jurisdiction is
a question of
law and therefore the Board will use the
de novo
standard ofreview.”
(Slip op.
at
15).
However,
in ruling that the
de novo
standard ofreview applied, the Board failed to recognize
that (i)
the
issue ofwhether Mrs. Keller received notice involved an issue offact that must be reviewed
under the manifest weight ofthe evidence standard; and (ii) the issue of whether WMJII’s attempts
to serve notice
on Mrs.
Keller were sufficiently timely and diligent to
constitute constructive
notice presented a mixed question oflaw and fact that must be reviewed under the clearly
erroneous standard.
A.
The Issue
Of Whether Brenda Keller Received Notice Presented A Fact
Question And, Therefore, Should Have Been Reviewed By The Board Under
The Manifest Weight of Evidence Standard
18.
In this
case, the jurisdictional issue of whether Mrs.
Keller received actual notice
involved
a question of fact which was ultimately resolved by the County Board after hearing
testimony from three witnesses.
19.
It is well-settled under illinois
law that factual determinations made by an
adjudicatory body are to be reviewed under the manifest weight of the evidence standard, not the
de novo
standard.
Bazydlo v.
Volant,
164 ill.
2d 207, 647 N.E.2d 273 (1995).
The Illinois
Supreme Court in
Bazydlo
explained:
A reviewing court should not overturn a trial
court’s findings
merely because it does not agree with the lower court or because it
might have reached a different conclusion had itbeen the fact
finder.
The trial judge, as the trier of fact, is in a position superior
to a reviewing court to observe
witnesses while testifying, to judge
373763.5
9
their credibility, and to determine the weight their testimony should
receive.
Consequently,
where the testimony is conflicting in a
bench trial, the trial court’s
findings will not be disturbed unless
they are against the manifest weight of the evidence.
Citations
omitted.
A judgment is against the manifest weight of the
evidence only when an opposite conclusion is apparent or when
findings appear to be unreasonable, arbitrary, or not based on
evidence.
id.,
at 2 14-15, 647 N.E.2d at 276-77.
The principle articulated in
Bazydlo
is not limited to an
appellate court’s review of a trial court’s factual findings, but applies equally to findings made by
administrative agencies acting in
an adjudicatory capacity, including findings made by local
siting authorities in conjunction with the local siting process.
Laidlaw Waste Systems, Inc.
v.
Pollution Control Board,
230 Ill. App. 3d 132,
137, 595 N.E.2d 600, 603-04 (6th Dist.
1992).
20.
In
Laidlaw,
the issue on appeal was whether the Board committed reversible error
by deciding the factual question of whether the plaintiff’s
application for local siting approval
was substantially the same as the previous application
de novo,
rather than under a manifest-
weight-of-the-evidence standard of review.
Id.,
at 133-35, 595
N.E.2d at 60 1-02.
Because the
circumstances in
Laidlaw
are particularly analogous to the instant case, they are detailed herein.
21.
At the local public hearing in
Laidlaw,
certain objectors filed a motion
to dismiss
the application on
the grounds that it was substantially the same as a previously filed application.
Id.
The hearing officer denied the motion
to dismiss stating that the second application was not
substantially the same because it involved
a different facility.
Id.
In its findings of fact and
recommendations, the local siting authority did not make express findings with respect to the
motion to dismiss, but nevertheless found that the application conformed-to the requirements of
Section 39.2 of the Act and granted site location approval.
Id.
The objectors then filed a petition
for review, and the Board reversed the decision ofthe local siting authority finding that the
second
application was substantially the same as the prior one and,
as such, the local siting
373763.5
10
authority lacked jurisdiction.
Id.
On appeal to the Fifth District appellate court, the applicant
argued that factual determinations, such as whether the two applications were substantially the
same, are to be made by the local siting authority and, consequently, the role of the Board is
limited
to determining whether the decision of the local siting authority is against the manifest
weight ofthe evidence.
Id.
22.
The Fifth District agreed with the applicant and reversed holding that the Board
may not decide factual issues
de novo.
Id.,
at 137,
595
N.E.2d at 604.
The
Laidlaw
court stated:
In administrative law, the determinations and conclusions ofthe
fact-finder, in this case the
local
governing body,
are generally
deemed conclusive.
The reviewing tribunal is not allowed to
determine issues independently, to
substitute its
ownjudgment, or
to re-weigh the evidence.
In other words, the reviewing tribunal
should not reverse the findings and conclusions initially reached
simply because it would have weighed the evidence in
a different
manner.
Citations
omitted.
Thus,
the Pollution Control Board may not make its own findings
of fact; it may only review the factual determinations of the local
governing body and consider whether those findings are against the
manifest weight of the evidence.
Citations
omitted.
Id.
23.
The reason factual findings of local siting authorities must be accorded the respect
of the manifest-weight-of-the-evidence standard ofreview is because the local siting process is
adjudicatory in nature.
McLean
County Disposal,
Inc. v.
County ofMcLean,
207 ill. App. 3d
477,481-82, 566 N.E.2d 26,29(4th Dist.
1991).
As part of the adjudicatory process, the local
siting authority must hold a public hearing, which has certain due process safeguards, including
the opportunity to be heard, present witnesses and to
test the validity of witnesses through cross-
examination.
Daly v. Pollution Control Board,
264 Iii.
App. 3d 968, 970-71, 637 N.E.2d 1153,
1155 (1st Dist.
1994).
Thus, it is within the sole province of the local siting authority to
373763.5
11
determine the credibility of witnesses, resolve conflicts in
the evidence and weigh the evidence
presented at the public hearing.
Landand Lakes Co.
v. Illinois Pollution Control Board,
319 ill.
App. 3d 41, 53, 743 N.E.2d 188,
197 (3d Dist. 2000).
On review, the Board is charged with
reviewing the local siting authority’s factual findings only to determine whether they were against
the manifest weight of the evidence, being mindful that conflicts in the evidence will not render
the decision against the manifest weight of the evidence.
Bevis v. Illinois Pollution Control
Board,
289
111. App. 3d 432,
435,
681 N.E.2d 1096,
1098-99 (5th Dist.
1997).
24.
The Board’s reliance on
Panhandle Eastern Pipe Line Company v. IEPA,
314 ill.
App. 3d 266, 734 N.E.2d 18
(4th Dist. 2000) and
Ogle County Board v. Pollution Control Board,
272 Ill. App.
3d 184,
649 N.E.2d 545 (2d Dist.
1995) for support of its decision to apply the
de
novo
standard is misplaced.
(Slip op. at 15).
In
Panhandle,
the issue on appeal did not involve a
review of factual issues, but “the interpretation of statutes and administrative rules.”
Panhandle,
314 Ill.
App. 3d at 300, 734 Ill. App. 3d at 21.
Similarly, in
Ogle
County,
it was undisputed that
two notices were not timely delivered and the issue on appeal was limited to whether the Board’s
interpretation of the notice provisions of Section 39.2(b) was proper.
Ogle County,
272 ill.
App.
3d at
187,
195, 649 N.E.2d at 548,
553.
25.
In this case, it is undisputable that the determination of the Kellers received notice
of WIVifi’s application was a question offact.
Petitioner Watson presented Mrs. Keller and her
husband, Robert Keller, to testify on this issue, and W~vffl
presented the process server, Ryan
Jones.
All
three witnesses were subjected to cross-examination.
Their testimony and credibility
were assessed by the County Board, and its finding on this
issue should be accorded deference.
If the Board were permitted to apply the
de novo
standard, the County Board’s fact finding
authority would be vitiated.
373763.5
12
26.
Under the proper manifest weight of the evidence standard of review, a finding of
fact is against the manifest weight of the evidence only if the opposite conclusion is plainly
evident and,
therefore, the determination of an administrative agency must be sustained if any
evidence fairly supports it.
Bevis,
289 ill. App.
3d at 435, 681 N.E.2d at 1098-99.
A review of
the record clearly shows that there was enough evidence presented to the County Board to
support its finding that the Kellers received notice ofthe application.
27.
The evidence in the record establishes that WIVffl sent notices to Mrs. Keller’s
husband via certified and regular mail, and to Mrs. Keller herselfvia regular mail, none of which
were returned undelivered or undeliverable.
(WMII Pub. Hrg. Ex. 7B).
In addition to
sending
notice via certified and regular mailings,
WIIVifi hired Mr. Jones who made five separate in-
person attempts to serve Mrs. Keller.
(App. at Additional
Information, Tab A;
WIVITI Pub. Hrg.
Ex.
7B;
12/5/02 Vol. 28, Tr.
at
5-15,
18, 21-23, 26-27, 35, 44, 46-47,
58-59).
On his fifth
attempt, Mr. Jones securely and conspicuously posted a copy of the notice on the door of Mrs.
Keller’s residence.
(12/5/02 Vol. 28, Tr. at 13-15, 73-74).
Mr. Jones also mailed notices to the
Kellers, none of which were
returned undelivered orundeliverable.
(WIvifi Pub. Hrg. Ex.
7B).
28.
The foregoing evidence in the record that WMII caused written notice to be served
on the Kellers by certified mail, regular mail and posted service provided ample basis to support
the County Board’s conclusion that the Kellers received notice ofWIMIE’s application.
Even
though Mrs. Keller testified at the hearing that she did not receive notice by any mannerof
service, such mere denials when weighed against conflicting evidence indicating receipt ofnotice
are insufficient to support a finding that Mrs. Keller did not receive notice.
See Dean
Management, Inc. v.
TBS Construction, Inc.,
339111. App. 3d 263, 790 N.E.2d 934,
943 (2d Dist.
2003) (trial court’s finding, based on defendant’s mere denial, that defendant did not receive
373763.5
13
notice of constructive termination, despite evidence that the notice
was faxed, was against the
manifest weight of the evidence); (defendant’s self-serving denials that it received notice was
rejected).
In
Montalbano Builders,
despite the plaintiff’s claims
that he did not receive the
request to admit, court presumed that, since the request was mailed, it was received four days
after the date the notice ofservice was filed.
Montalbano Builders, Inc.,
at *3~
29.
In any event, the record before the Board contained conflicting evidence that Mrs.
Kellers knew that WMIIT was attempting to serve notice on her and conveniently made herself
unavailable to
be notified, in person or by mail.
The hearing before the County Board provided
the only opportunity to hear the conflicting testimony and to
assess witness credibility.
The
County Board was also in the best position to analyze Mr. Keller’s testimony in the context of the
other evidence presented concerning the Kellers’ relationship with Petitioner Watson, Petitioner
Watson’s influence on the Kellers to claim they did not receive notice, and the contradictions in
the Kellers’ own testimonies.
The County Board ultimately determined that Mrs. Keller’s denials
were not credible and found that the notice requirements of Section 39.2(b) were satisfied.
There
was sufficient evidence presented before the County Board to support its finding, and conflicts in
the evidence is not enough to render that finding against the manifest weight of the evidence.
McLean County Disposal, Inc.,
207 Ill. App.
3d
at 482, 566 N.E.2d at 29.
B.
The Issue Of Whether
WMTI
Accomplished Constructive Notice Presents A
Mixed Question Of Law And Fact And,
Therefore, Should Have Been
Reviewed By
The Board Under The Clearly Erroneous Standard
30.
The Board also erred in
failing to apply the clearly erroneous standard of review
to the question of whether Mrs. Keller should be deemed to have received constructive notice.
The issue of whether WMII’s attempts to notify Mrs. Keller were
sufficient to constitute
constructive notice for purposes of satisfying the notice requirements of Section
39.2(b) presents
373763.5
14
a mixed question of law and fact in that a factual determination must be made as to
whether
WMIL’S efforts at serving notice on
Mrs. Keller were timely and diligent, and a legal
determination must be
made as to
whethersuch efforts were sufficient
to constitute constructive
notice under the law.
31.
Where an
adjudicatory body’s “determination presents a mixed question oflaw
and fact, its
decision will be set aside only if it is clearly erroneous.”
Land and Lakes Co.,
319
ill.
App. 3d at 53, 743 N.E.2d at 197.
Under a clearly erroneous standard of review, reversal is
appropriate only if, after review of the entire record, the reviewing court is left with
the definite
and firm conviction that a mistake has been committed.
Carpetland U.S.A., Inc. v. illinois
Department ofEmployment Security,
201
ill. 2d 351, 369, 776 N.E.2d 166,
177 (2002).
32.
As stated above in paragraphs 14-16, the Board did not determine whether WMJT’s
efforts at serving notice on Mrs.
Keller were timely and diligent, or a legal
determination as to
whether such efforts were sufficient to constitute constructive notice under the law.
However,
the evidence in the record clearly demonstrates that
WIVifi made sufficiently diligent and timely
attempts to serve the Kellers through a variety ofreliable means.
33.
There was no dispute at the hearing before the County Board that WIvifi employed
extensive efforts to notify the Kellers of its intent to file an application for site location approval.
The process server made five separate
attempts over fourdays to serve
the Kellers.
In addition to
attempts at personal service, WMIT sent notices to Mr. Kellervia certified mail, and to Mr. and
Mrs. Keller via regular mail.
The process server also sent separate notices to Mr. and Mrs.
Kellers via regular mail.
Thus,
five separate mailings were
sent to the Kellers.
Finally,
WIN’ffl
posted notice to
the Kellers’ residence.
In total,
11
notices were sent or delivered to the Kellers.
34.
There was also no dispute that WMffls efforts were timely.
In order to be timely,
373763.5
15
attempts to serve notice must also be initiated sufficiently in
advance to reasonably expect receipt
by the 14-day pre-filing deadline.
City of Columbia,
slip op. at
13.
Initiating service via certified
mail at least 21
days
in advance of filing constitutes a timely attempt to effect notice.
Village of
Bensenville,
slip op. at 6.
In this
case, WIvifi initiated service at least 22 days before filing its
application.
35.
Therefore, the County Board was presented with ample evidence of WIvill’s
diligent and timely efforts to
conclude that WIVIIT’s attempts to serve the Kellers were sufficient
to constitute constructive notice and satisfy the notice requirements of Section 39.2(b).
Thus, the
County Board had jurisdiction to approve the Application.
WHEREFORE, WASTE MANAGEMENT OF ILLINOIS, INC. respectfully requests
that the Board grant WMILs Motion to Reconsider and reverse its ruling that WIVifi did not notify
Brenda Keller in compliance
with Section 39.2(b) ofthe Act, and for such other and further relief
as it deems appropriate.
Donald J. Moran
Lauren Blair
PEDERSEN & HOUPT
161
North Clark Street
Suite 3100
Chicago, illinois 60601
(312) 641-6888
‘y submitted,
IWNOIS, INC.
One ofIts
At7ieys
373763.5
16
