City of Waukegan v. ILLINOIS EPA, No. 2-02-0635

• Decision Date: 13 June 2003
• Docket Number: No. 2-02-0635, No. 2-03-0200.
• Citation: 274 Ill.Dec. 543,339 Ill. App.3d 963,791 N.E.2d 635
• Parties: The CITY OF WAUKEGAN, a Municipal Corporation; The Waukegan City Council, the Governing Body of the City of Waukegan; Daniel T. Drew, Mayor of the City of Waukegan, and John Balen, Sam Cunningham, J.A. "Tony" Figueroa, Frank Harris, Jr., Richard Hyde, Patrick R. Needham, John Rickerd, and Lawrence TenPas, Members of the Waukegan City Council; Russ Tomlin, Director of Planning and Zoning; and Chuck Perkey, Building and Planning Director, Plaintiffs and Counter-defendants-Appellees and Cross-Appellants, v. The ILLINOIS ENVIRONMENTAL PROTECTION AGENCY, Defendant and Cross-Appellee (North Shore Sanitary District, Defendant and Counterplaintiff-Appellant and Cross-Appellee).
• Court: United States Appellate Court of Illinois

791 N.E.2d 635

339 Ill. App.3d 963

274 Ill.Dec. 543

The CITY OF WAUKEGAN, a Municipal Corporation; The Waukegan City Council, the Governing Body of the City of Waukegan; Daniel T. Drew, Mayor of the City of Waukegan, and John Balen, Sam Cunningham, J.A. "Tony" Figueroa, Frank Harris, Jr., Richard Hyde, Patrick R. Needham, John Rickerd, and Lawrence TenPas, Members of the Waukegan City Council; Russ Tomlin, Director of Planning and Zoning; and Chuck Perkey, Building and Planning Director, Plaintiffs and Counter-defendants-Appellees and Cross-Appellants, v. The ILLINOIS ENVIRONMENTAL PROTECTION AGENCY, Defendant and Cross-Appellee (North Shore Sanitary District, Defendant and Counterplaintiff-Appellant and Cross-Appellee).

Nos. 2-02-0635, 2-03-0200.

Appellate Court of Illinois, Second District.

June 13, 2003.

Mark E. Furlane, Michael J. Hayes, Francis X. Lyons, Shelia H. Deely, Wallace C. Solberg, Gardner, Carton & Douglas, Chicago, for North Shore Sanitary District.

Michael S. Blazer, Jeffery D. Jeep, Jeffrey R. Diver, The Jeff Diver Group, Wheaton, Brian S. Grach, Robert J. Masini, Waukegan, for John Balen, City of Waukegan, Sam Cunningham, Daniel T. Drew, J.A. Figueroa. Frank Harris Jr., Richard Hyde, Patrick R. Needham, John Rickerd, Lawrence TenPas.

Lisa Madigan, Attorney General, Joel D. Bertocchi, Brian F. Barov, Assistant Attorneys General, Chicago, for Illinois Environmental Protection Agency.

Justice BOWMAN delivered the opinion of the court:

The City of Waukegan (the City) filed suit against the North Shore Sanitary District (the District) and the Illinois Environmental Protection Agency (the Agency) in the circuit court of Lake County, seeking declaratory and injunctive relief with respect to the District's proposed construction of a "Biosolids Reuse Project" in Waukegan. The District filed a counterclaim that, inter alia, asked the court to declare that the City's zoning and building regulations do not apply to it.

The District appeals the denials of (1) its motion for judgment on the pleadings as to counts III through VI of the City's amended complaint, and (2) its motion for summary judgment on counts I and II of its counterclaim. The City has filed a cross-appeal in which it asserts that the trial court erred in granting the District's motion for judgment on the pleadings and the Agency's motion to strike and dismiss, both as to counts I and II of the City's amended complaint.

The District has also appealed the trial court's order of February 18, 2003, denying its motion for a temporary restraining order and granting the City's motion for a temporary restraining order. We have consolidated the two appeals.

BACKGROUND

The District is a governmental unit created by statute (see 70 ILCS 2305/0.1 et seq. (West 2000)) to provide sewage disposal and waste water treatment services to the 11 municipalities located within its designated area. The District operates a waste water treatment facility in Waukegan and seeks to construct on its own property the "Biosolids Reuse Project" (project). The project is intended to allow the District to create a usable by-product with the sludge that the District currently transports to a landfill. The Agency issued the District the necessary permits for constructing the project.

The City is a municipal corporation and home rule unit of government. The District alleges that the City has repeatedly sought to impede the project by changing its ordinances, passing a moratorium on the issuance of building permits for the area where the District's property is located, and opposing the issuance of permits by the Agency. The City maintains that the District must comply with its zoning and building ordinances.

On December 6, 2001, the City filed a complaint against the District and the Agency seeking declaratory and injunctive relief. Counts I and II of the City's amended complaint ask the court to declare that, under section 39(c) of the Environmental Protection Act (Act) (415 ILCS 5/39(c) (West 2000)), (1) the project constitutes a "new pollution control facility" that requires local siting approval before the Agency may issue permits, and (2) the Agency's permits are void due to the District's failure to obtain local siting approval. The City further requests an injunction to prevent the District from commencing construction without local siting approval. Counts III through VI of the amended complaint ask the court to declare that the District must comply with the City's zoning and building ordinances and to enjoin the District from constructing its project until it complies.

In its counterclaim, the District seeks, inter alia, a declaration that it is not subject to regulation by the City and an injunction preventing the City from imposing its zoning ordinances upon the project.

The District moved for judgment on the pleadings and argued with respect to counts I and II of the amended complaint that the City may not collaterally attack the Agency's issuance of permits to the District. The Agency made this argument as well in its motion to strike and dismiss counts I and II of the amended complaint.

As for counts III through VI of the amended complaint, the District contended that a line of cases that the parties refer to as the "Des Plaines Trilogy" exempts the District from complying with the City's zoning and building codes. The City responded that amendments to section 39(c) of the Act have overruled the "Des Plaines Trilogy" and require the District to comply with the City's ordinances.

On June 18, 2002, the trial court entered an order granting both the District's motion for judgment on the pleadings and the Agency's motion to strike and dismiss with respect to counts I and II of the amended complaint. The court agreed with the District and the Agency that the City may not collaterally attack the Agency's permitting decision. On that same date, the court denied the District's motion for judgment on the pleadings as to the remaining counts of the amended complaint on the ground that section 39(c) of the Act requires the District to comply with the City's zoning and building ordinances. For the same reason, the court denied the District's motion for summary judgment on its counterclaim. In its June 18 order, the court made findings that there was no just reason to delay the enforcement of or the appeal from its rulings on the motion for summary judgment, the motion for judgment on the pleadings, and the motion to strike and dismiss. The court also certified the following questions for appeal, pursuant to Supreme Court Rule 308 (155 Ill.2d R. 308):

"(1) Whether under the Des Plaines Trilogy line of authority, if the North Shore Sanitary District is exercising power within its statutory grant, such exercise is subject to zoning restrictions imposed by Waukegan, a host home rule municipality[.]

(2) Whether the amendments to the Environmental Protection Act have over ruled the Des Plaines Trilogy line of authority under the facts of this case[.]"

The District filed a timely notice of appeal from the trial court's order and the City filed a timely cross-appeal.

While the District's initial appeal was pending, it attempted to start constructing the project before the expiration of its air permit on March 11, 2003. The City physically prevented the District from beginning construction by placing police officers and salt trucks at the entrance to the construction site. The City also threatened to fine the District and to arrest the District's contractors. The District and the City filed cross-motions for temporary restraining orders.

On February 18, 2003, the court granted the City's motion for temporary restraining order and denied the District's motion for temporary restraining order. The court based its decision on its earlier ruling that the District is not exempt from complying with the City's zoning and building ordinances. Because the City denied the District's zoning applications, the District was attempting to begin construction without the required permits. The District filed a timely petition for leave to appeal the trial court's order (see 188 Ill.2d R. 307(d)). We granted the District's motion to consolidate its appeals.

No. 2-02-0635

Before reaching the merits of this case, we first address the District's motion to amend the record with minutes from a Waukegan city council meeting on October 21, 2002, at which the city council denied the District's petitions for a conditional use permit and for a variance. According to the District, the addition of these minutes to the record on appeal will allow us to decide whether the City's actions have exceeded the scope of its home rule authority. The City objects to the supplementation of the record, arguing that the minutes are not relevant to the issues before us. We agree with the City. First, the District seeks to supplement, rather than amend, the record. Moreover, the minutes that the District seeks to add to the record go to the merits of the case, which are not before us on appeal. Consequently, we deny the District's motion to amend the record.

CERTIFIED QUESTIONS

The first certified question asks us to answer whether, under the "Des Plaines Trilogy," the District is subject to the City's zoning restrictions if the District is exercising power within its statutory grant. As we understand it, this question asks us to consider only the Des Plaines cases and not section 39(c) of the Act. The second certified question asks whether the amendments to section 39(c) of the Act have overruled the Des Plaines cases. To facilitate our analysis of these questions, we first set out the relevant case law and statutory provisions.

In a series of cases, our supreme court addressed efforts by the City of Des Plaines (Des Plaines) to impose its zoning ordinances upon the Metropolitan Sanitary District of Greater Chicago (sanitary district) with respect to the sanitary district's proposed construction of...