BEFORE
THE
ILLINOIS
COUNTY
OF
KANKAKEE
and
EDWARD
D.
SMITH,
STATE’S
ATTORNEY
OF
KANKAKEE
COUNTY,
)
Petitioners,
)
R.
CE
D
CLERKS
OFFICE
OEC
52002
No.
PCB
03-31
iAfE
OF
ILLiNOIS
)
(Third-Party
Po1lutieoJwiUt3oard
)
Siting
Appeal)
)
THE
CITY
OF
KANKAKEE,
ILLINOIS,
CITY)
COUNCIL,
TOWN
AND
COUNTRY
)
UTILITIES,INC.
and
KANKAKEE
REGIONAL)
LANDFILL,
L.L.C.
)
Respondents.
THE
CITY
OF
KANKAKEE,
ILLINOIS,
CITY
COUNCIL,
TOWN
AND
COUNTRY
UTILITIES,
INC.,
and
KANKAKEE
REGIONAL
LANDFILL,
L.L.C.,
Respondents.
THE
CITY
OF
KANK4KEE,
ILLINOIS,
CITY
COUNCIL,
TOWN
AND
COUNTRY
UTILITIES,
INC.,
and
KANKAKEE
REGIONAL LANDFILL,
L.L.C.,
Respondents.
No. PCB
03-33
(Third-Party
Pollution
Control
Facility
Siting
Appeal)
)
)
)
vs.
BYRON
SANDBERG,
Petitioner,
vs.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
WASTE
MANAGEMENT
OF
ILLINOIS,
INC.
Petitioner,
vs.
No.
PCB
03-35
(Third-Party
Pollution
Control
Facility
Siting
Appeal)
(Consolidated)
NOTICE
OF
FILING
PLEASE
TAKE
NOTICE
that
on
December
5,
2002,
there
was
caused
to be
filed with
the
Illinois
Pollution
Control
Board,
an original
and nine
(9)
copies
of the
following
documents,
copies
of which
are
attached
hereto:
City
of
Kankakee’s
Reply
Brief
to
the
Pollution
Control
Board
KENNETH
A. LESHEN,
Attorney
at
Law
PROOF
OF
SERVICE
I, Joseph
A.
Volini,
a
non-attorney,
on
oath state
that
I served
a copy
of the
above
listed
documents
by
sending
the
same to
each of
the parties
listed
on
the attached
Service
List
via
facsimile
or
personal
delivery
prior to
5:00
p.m.
on
December
5,
2002.
JOSEPH
VOKJNI
SUBSCRIBED
AND
SWORN
TO
before
me
this
day
of
cçy-
2002.
NOTARY
PUBLIC
‘OFFICIAL
SEAL”
DIANA
QUINTERO
Notary Public,
State
of
Illinois
My
Commission
Expires
11/17/06
4
KENNETH
A.
LESHEN
Attorney
at Law
One
Dearborn
Square,
Suite
550
Kankakee,
Illinois
60901
Phone:
(815)
933-3397
2
SERVICE
LIST
Dorothy
M.
Gunn,
Clerk
Illinois
Pollution
Control
Board
James
R. Thompson
Center
109
W. Randolph
Street,
Suite
11-500
Chicago,
Illinois 60601-3218
(PERSONAL
SERVICE)
City
of
Kankakee Clerk
Anjanita
Dumas
385
E. Oak
Street
Kankakee,
IL 60901
(VIA FAX:
815-933-0482)
Attorney
Christopher
Bohlen
Barmann, Kramer,
and Bohlen,
P.C.
200
E.
Court
Street,
Suite 502
Kankakee,IL
60901
(VIA
FAX:
815-939-0944)
Donald
J. Moran
Pederson
& Houpt
161
N. Clark
St., Suite
3100
Chicago,
IL 60601-3242
(PERSONAL
SERVICE)
Byron
Sandberg
P.O.
Box
220
Donovan,
IL 60931
(VIA FAX:
815- 486-7327)
Richard
S. Porter
Hinshaw &
Culbertson
P.O.
Box 1389
Rockford,
IL
61105-8488
(VIA FAX:
815-963-9989)
Richard
S. Porter
Hinshaw
& Culbertson
222 N. LaSalle
Chicago,
IL
60601
(PERSONAL SERVICE)
Mr. Brad Halloran
100 W.
Randolph,
11th Floor
Chicago, IL
60601
(PERSONAL
SERVICE)
Mr.
George Mueller
501 State
Street
Ottawa,
IL
61350
(VIA FAX:
815-433-4913)
BEFORE
THE
ILLINOIS
fl
5
2002
COUNTY
OF KANKAKEE
and EDWARD
D.
SMITH,
STATE’S
ATTORNEY
OF
KANKAKEE
COUNTY,
)
STATE
OF
ILLiNOIS
Board
PETITIONERS,
)
)
vs.
)
PCB
03-3 1
)
(Third-Party
Pollution
Control
THE
CITY
OF
KANKAKEE,
ILLiNOIS,
CITY
)
Facility
Siting
Appeal)
COUNCIL,
TOWN
AND
COUNTRY
UTILITIES,
)
iNC., and
KANKAKEE
REGIONAL
LANDFILL,
L.L.C.,
)
)
RESPONDENTS.
)
)
BYRON SANDBERG,
)
)
PETITIONER,)
)
vs.
)
PCBO3-33
)
(Third-Party
Pollution
Control
THE
CITY OF
KANKAKEE,
ILLINOIS,
CITY
)
Facility
Siting
Appeal)
COUNCIL,
TOWN
AND COUNTRY
UTILITIES,
)
INC., and
KANKAKEE
REGIONAL
LANDFILL,
L.L.C.,
)
)
RESPONDENTS.
)
)
WASTE
MANAGEMENT
OF ILLiNOIS,
INC.,
)
)
PETITIONER,)
)
vs.
)
PCB03-35
)
(Third-Party
Pollution
Control
THE
CITY
OF
KANKAKEE,
ILLINOIS,
CITY
)
Facility
Siting
Appeal)
COUNCIL,
TOWN
AND
COUNTRY
UTILITIES,
)
INC.,
and
KANKAKEE
REGIONAL
LANDFILL,
L.L.C.,
)
(Consolidated)
)
RESPONDENTS.
)
-2-
REPLY BRIEF OF THE CITY OF KANKAKEE
Now
comes
the
CITY OF KANKAKEE, by and through its attorney,
KENNETH L. LESHEN,
Assistant City Attorney, and in response and reply to the
briefs and arguments filed herein, states
as
follows:
I.
THE FINDINGS OF FACT AND CONCLUSIONS OF THE CITY COUNCIL OF KANKAKEE IN
APPROVING THE SITING
APPLICATION
IS NOT
AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE AND,
THEREFORE,
THE DECISION
SHOULD BE AFFIRMED.
The first and primary issue facing this Board in
reviewing
the
record in
this case is to review
the
findings of fact of
the City Council of the
City of
Kankakee, which findings were adopted as a portion
of
the resolution approving the siting approval. In reviewing those findings offact, this Board must determine
whether or not
it can reverse the decision
of the City
Council
of Kankakee
only
if
it finds that
the City
Council’s decision is
contrary
to the manifest weight of the
evidence. ConcernedAdjoining
Owners vs.
Pollution Control Board, 288 Iii. App. 3d 565, 680 N.E.2d 810
(
5
th
Dist., 1997). A
decision
of a local
siting authority
with respect to an applicant’s compliance with the statutory siting criteria will not be
disturbed unless
the
decision is contrary to the manifest weight ofthe evidence. Land andLakes Company
vs.
Illinois Pollution
Control Board, 319 Ill.
App. 3d
41,
743 N.E.2d 188, 252 Ill. Dec. 614
(
3
rd
Dist.,
2000).
Further, a
decision is against the manifest weight ofthe evidence only ifthe
opposite
conclusion
is
clearly evident,
plain or indisputable. Turlik vs. Pollution Control Board,
274 Ill. App. 3d 244,
653
N.E.2d
1288, 210 Iii. Dec.
826
(1995).
In this case,
detailed findings offact were included in the resolution ofthe City Council ofthe City
of Kankakee
which approved the siting of the solid waste facility in question.
Despite
their
attempts,
objectors, Waste
Management and the County of Kankakee, have failed to point to or
establish
any
evidence in the
record which is substantially contrary
to
the evidence offered
by
the applicant in this case.
-3-
Further,
the
evidence offered
by
the applicant
supports each
ofthe statutory criteria which
was required to
be found
by the City Council in approving this siting.
While it is clear
that the objectors, Waste
Management and Kankakee County, disagree
with the
findings ofthe City of Kankakee City Council,
they
have not shown, nor can they successfully
argue, that
the decision and findings are against the manifest
weight of the evidence. In fact, none of the
objectors’
witnesses
offered testimony contrary to those of the applicant, except on the issue
ofthe
geo-hydrology
of
the site. The City Council found on that issue that
the applicant’s evidence was credible and was supportive
of the criteria and clearly opted
to
accept that
testimony over the testimony of the objectors’ witnesses.
Indeed, the
findings
ofthe
City
Council specifically referenced the testimony ofthe witness offered
by Doris Benoit and Mark
Warpet. The
issues raised by that witness, Stuart Cravens, was considered and
referenced in the findings of fact. Those findings found that while Mr. Cravens’ testimony regarding
the
existence or non-existence of aquifers is an issue for which the design must accommodate and which
further
test borings would determine, Cravens’ testimony regarding the design and efficiency ofthe design
was not
credible.
It
is important to consider that this is not a case where a hearing officer heard the evidence in the
absence of the legislative body
and
then reported to the legislative body
his findings. In this case,
at
least
ten of
the fourteen members of the City Council were present
for all or part
of every
one of the sessions
of
the
hearings.
For most of the sessions, twelve to thirteen members
of the City Council were present.
Thus, for all of the
sessions, more than two-thirds of the City Council were present,
heard the testimony,
evaluated the
testimony and made their own decision. Following
the hearings, the City Council
unanimously found that
the record
gave them no alternative but to
approve the application for siting.
-4.-
The
City Council was
repeatedly instructed
that
they should
make
their decision
based only
on
the
evidence
presented
in this
record
and
not
on any outside
influence,
outside
testimony,
or
outside
suggestions.
In fact, they
did so. The
findings of fact
regarding
the
various
criteria
reference
the testimony
of the
various witnesses
and discussed
the testimony
in
support
ofthe
application.
By its findings
of fact,
the City Council
made a finding
that the
statutory
criteria
had
been satisfied.
No
effort has
been made, nor
has
any effort
been
shown
on
the part of the
objectors
to point
to
evidence which
is
contrary
to the findings
of fact. Rather,
by broad brush
arguments,
the appellants
attempt
to show points
of cross
examination
which they
believe tend
to support
their
arguments.
Just
as
the
Kankakee aldermen
were
required
to base their
decision on the
evidence
offered at
the hearing,
so
also
are
the objectors required
to rely
upon the evidence
which was presented.
The
facts are that the
evidence in
the record supports
each of the criteria
and the findings
by the
City
Council ofKankakee
and there is
no basis
to
find
that findings and decision
made
by
members
of the
City
of Kankakee
City Council
were
against
the manifest weight
of
the evidence.
Indeed, the
very
substantial
record
establishes
that the decision
was
based
on the evidence presented
at the hearings
and that
any decision other
than approval would
have
been
contrary
to the evidence
presented.
II. THE
ERROR OF THE
CITY CLERK iN FAILING
TO
PROVIDE A FREE
COPY
OF THE
APPLICATION
FOR SITING
TO THE
CHAIRMAN OF THE
KANKAKEE COUNTY
BOARD
AND
THE
SOLID
WASTE PLANNER
WAS HARMLESS
AND CAUSED
NO PREJUDICE.
Kankakee County
claims
that this
matter should be reversed
and remanded
due to
the fact
that
the
Kankakee
City Clerk failed
to provide
a
free
copy of the siting
application to the
Chairman
of the
Kankakee County
Board and the Kankakee
County
Solid Waste planner,
as required by
the City’s
ordinance.
While there is
no
issue
that such a failure occurred,
there is
also no showing that
the County
was
prejudiced
in
any
way by the failure.
-5-
As
is
established
in
the testimony
of Anjanita
Dumas,
the City Clerk,
she
was
unaware
that she was
required
to forward
a
copy
to
the County.
However,
she assured
that
all persons
who
desired
to obtain
a
copy
of the
siting
application
had
the
opportunity
to do
so by
arranging
with local printers
to
make
copies
of
the application.
Further,
a
copy
of the application
was
available
for review
by any persons
at her office
and
at the Kankakee
Public
Library.
Thus, there
can
be
no argument
that
access
to the
application
by
anyone
was in anyway
limited
or denied.
To
the
contrary,
any
party
who sought
access
had
access either
for
free or
by payment
of
the
costs
of copying.
There was
no violation
as
suggested
by
Kankakee
County in
their brief.
Certainly,
there
was
no
denial as
was
alleged
to
have
occurred
in
Waste
Management
ofihinois
vs.
Pollution
Control
Board,
175 Ill.
App. 3d
1023,
530
N.E.2d 682
(2’
Dist.,
1988). Although
that
decision
did not
decide
the
issue,
the
court,
in
effect,
affirmed
the
Pollution
Control
Board’s finding
that
the failure
to follow
the
local
siting
ordinance
was harmless
error.
Such
a
holding
is applicable
here
as well.
Kankakee
County had
access
to
the siting
application.
Their
consultant
purchased
the
document.
Kankakee
County
had
the ability
to have the
same access
as any
other
party. They
simply
did not
have two
free copies.
However,
now the
County complains
that
such was
in
some
way
prejudicial.
What
is
the prejudice?
Of course,
none
was
shown.
The County
fully
participated,
cross-examined
based
upon
the
siting
application,
and otherwise
showed
no
limitation caused
by not
receiving
the two free
copies
of
the
application.
Further,
the County
made no request
to continue
the
hearings,
nor did the
County
make any
showing
at
the
time
that
the issue arose
that it
had suffered
any
prejudice
by
the clerk’s
error.
Indeed,
the
County’s
position was
then, and
is
now,
that
it need
not make
a showing
of any
prejudice,
but
that it need
only
establish
the
error.
While
the claim is
a
convenient
objection,
it is not
a
basis
for
the
reversal
of
the
decision by
the City
of Kankakee
City Council.
Here,
the County
requested
and received
a
copy of the
siting
application
more
than
two
months
prior to
the hearing.
Even
though
it had to pay
for
-6-
the
copy,
the County
produced
no
evidence
ofprejudice.
Without
such
a
showing,
this
Board
should
deny
the
County’s
objection
on
this
basis.
III. THE
UNEXPECTED
OVERFLOW
CROWD
OF THE
FIRST
NIGHT’
S
HEARING
IS
NOT
A
BASIS
TO
FIND
THAT
THE
PROCEEDINGS
WERE
UNFAIR.
Kankakee
County
has
raised
the fact
that
the crowd
desiring
to attend
the
first
night’s
hearing
was
larger
than
the room
was
an indicia
of
unfairness.
Based
upon
this
fact, the
County
argues
that
this
Board
should
reverse
the
City’s
decision
approving
the
application.
The flaw
in
the
County’s
argument
is shown
in the
record.
First,
annexation
hearings
had
been
held
for
the annexation
ofthis property.
There
was
sufficient
space in
the
City
Council
Chambers
for
all
persons
who
desired
to
attend
to
be accommodated,
according
to the
testimony
of
the Hearing
Officer.
Further,
Kankakee
did everything
within
its power
to
assure
that those
persons
who
actually
desired
to
participate
were,
in fact,
accommodated.
The room
where
the
hearing
was
held
was the
normal
place for
the
City
Council
to
meet.
Additional
chairs
were added
in
the
audience
portion
to
accommodate
over one
hundred
observers.
In
addition
to the
seating
for
the observers,
seating
was
provided
for
the
fourteen
members
of the
City
Council,
the City
of
Kankakee
Planning
Board,
the
Mayor,
an engineer
advisor,
the applicant,
the applicant’s
witnesses
and
attorney,
the
fifteen
objectors
and
their
attorneys
and
advisors,
and four
members
of the
press.
(It
should
be
noted
that
Kankakee
County
occupied
five
seats,
including
four
attorneys
and
one
advisor,
while
Waste
Management representatives
occupied
four
chairs
in
the room
on
the first
night.)
Obviously, this
was
not
a
small
room,
nor
was
it one
without
substantial
accommodations.
However,
on the
first night
of the
proceedings,
more
people
arrived
than
could
be
seated.
Those
people
were kept
from
the
room
itself,
although
not kept
from
observation,
as
the doors
to the
room
were
kept
open.
-7-
The
appellants’ argument
that persons
were not
allowed
to
participate is without
any basis
in the
record.
When the overflow
crowd
appeared,
the
Assistant
City Attorney
went
to the crowd
to determine
if
there
were
any
other
people who desired
to participate.
This was
accomplished even
though the
rules
had
required
objectors
to register more
than
five days
prior to the hearing.
In order
to allow
all persons who
desired to participate
to participate,
the five-day
rule was
waived.
Even
two days into the
hearing,
when Pat
O’Dell informed
the
hearing
officer
that
she had changed
her
mind
and wanted to cross-examine
witnesses
and
appear as an
objector she was allowed
to
do so.
The
testimony of the hearing
officer
also
indicated
that
on the night of
the hearing, Elizabeth
Fleming
Weber
was allowed
to appear and
participate. Only
one
person,
Darryl Bruck,
claims that he was denied
the right
to participate, yet
he was present
at the hearings
and never asked
the
hearing
officer to allow
him to
participate,
even
though his co-members
of Outrage,
a citizens
group, were all
participating.
Clearly, all persons who
desired to
appear
as objectors
did so. The County’s
suggestion
that there
was
confusion
about the process to appear
as objectors
is equally
absurd. By requesting
only
to speak,
members of
the public were not
assumed to be
objectors. In
fact, all members of the
public who
requested
to speak
were
allowed to do
so and not
a
single one of those persons
indicated
that they had been
denied
the
right to participate when
they had
the chance
to speak.
(see
public comment
transcript of 6/27/02)
Thus,
the County’s argument
is
baseless.
Public hearings which
attract
more
observers
than
the
room can
accommodate occur
regularly.
As
Bohien’
s testimony
verified, even
the Kankakee
County
Board
excludes
interested citizens
from its
board
meetings due to an
overflow.
Trials
occur
when family
members
of the parties
are
barred
due to crowds
in the
court
room. Such events
do not deny the fundamental
due
process ofthe
proceedings. Rather,
they are
simply
indicative
ofthe limitations
of space
which
occur from
time to time.
-8-
To
accommodate
this
occurrence,
the
City
did everything
within
its
power
to
assure
that
the
remainder
of
the proceedings
would
accommodate
the
crowds.
However,
those
crowds
did
not reappear.
In
the
meantime,
the
City
placed
the
transcript
ofthe
first
night’s
proceedings
for public
review
at
the clerk’s
office
and
at
the
library.
The
City
placed
additional
chairs
and speakers
in
the hallway.
The
City
held
the
public
comment
session
at
the only
available
location,
a school
auditorium
which
was
not
air conditioned.
While
the objectors
complain,
they
do not
indicate
that
any
alternative
was available
for
the hearing
in the
City
of Kankakee,
either
that
night
or
any other
night.
Because
no
credible
prejudice
was
shown
to anyone
who
wanted
to participate
in the
hearings,
the
only
negative
is
that persons
who
wanted
to
observe
were
denied
the opportunity
to do
so.
While
that
is
regrettable,
it
is
neither
a basis
to reverse
the
proceedings,
nor
a basis
to
determine
that
these
hearings
denied
the
objectors
any fundamental
fairness.
In
fact,
the
only
objectors
who
have
appealed
this
proceeding
were
not
only
allowed
places
at
the
table
but
were
assured,
as were
all
others
who
desired
to
participate,
accommodations
in the
front
of the
council
chambers
with
as
much
space
as
they
desired.
Finally,
there
is no
basis
to
claim
that
the
City had
advance
knowledge
of
the
fact
that
the crowd
would
overflow
on
the first
night.
To
infer
that
fact
and
therefore
impute
bad
intentions
on the
City
in its
attempts
to fairly
hold
these
hearings,
is simply
contrary
to the
record
and
without
basis.
There
is
no
basis
to
claim
that
the
unexpected
overflow
crowd
denied
fundamental
fairness
to
the
objectors.
CITY
OF KANKAKEE
By
.‘
KewsU
&
Kenneth
L.
Leshen
KENNETH
L.
LESHEN
Assistant City
Attorney
385
East
Oak
Street
Kankakee,
IL
60901
(815)
933-0500