McHenry County v. Sternaman

• Decision Date: 13 September 1978
• Docket Number: No. 77-225,77-225
• Citation: 63 Ill.App.3d 679,380 N.E.2d 540,20 Ill.Dec. 562
• Parties: , 20 Ill.Dec. 562 COUNTY OF McHENRY, Plaintiff-Appellee, v. John C. STERNAMAN, d/b/a Illinois Mining Company, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 540

380 N.E.2d 540

63 Ill.App.3d 679, 20 Ill.Dec. 562

COUNTY OF McHENRY, Plaintiff-Appellee, v. John C. STERNAMAN, d/b/a Illinois Mining Company, Defendant-Appellant.

No. 77-225.

Appellate Court of Illinois, Second District.

Sept. 13, 1978.

Gerald D. Hosier, Hosier, Niro & Daleiden, William L. Niro, Chicago, for defendant-appellant.

William J. Cowlin, State's Atty., Woodstock, Henry H. Sugden, III, Asst. State's Atty., for plaintiff-appellee.

WOODWARD, Justice:

Defendant operates a sand and gravel pit in McHenry County; in this proceeding he was charged with six violations of the county zoning ordinance. Defendant filed a motion to dismiss the complaint based on the theory that the county zoning ordinance has been preempted by the Environmental Protection Act, Ill.Rev.Stat., ch. 1111/2, par. 1001 et seq. (hereinafter called "EPA") and therefore the county zoning ordinance no longer applied to defendant's operations. The trial judge denied defendant's motion but found that an immediate appeal was indicated for the reason that the order denying defendant's motion involved a question of law as to which there was substantial ground for a difference of opinion. The court entered an order staying further proceedings in this cause and this court subsequently granted defendant leave to appeal.

The sand and gravel pit of the defendant is located in a portion of McHenry County which is zoned "F-Farming" by the county zoning ordinance. The actual mining, loading and removal of the sand and gravel is a permitted use under the county zoning ordinance but washing and screening of sand and gravel is allowed only by a special use permit which has not been granted defendant by the county. In this court, defendant alleges by way of an affidavit appended to his brief that the Illinois Environmental Protection Agency (hereinafter called the "Agency") issued a permit which allowed him to conduct the mining operation, including washing and screening of sand and gravel removed from his property. Since this fact does not properly appear in the record as certified by the trial court, we are unable to assume the issuance of an Agency permit, however, the order of the trial court has posed the issue presented by this appeal as one of whether or not the EPA preempts the county zoning ordinance "in the event that defendant has obtained an Agency permit for his operation of a sand and gravel pit on his property which operation encompasses the uses charged in the complaint filed against him. In light of the foregoing, we shall assume for the purposes of this opinion the issuance of an Agency permit covering the defendant's operations.

Defendant is required by sec. 6(g) of the Surface-Mined Land Conservation and Reclamation Act (Ill.Rev.Stat., 1975, ch. 93, par. 206(g)) to comply with all requirements, rules and regulations of the EPA. Par. 201 of ch. 4 (Mine Related Pollution) of the State of Illinois Pollution Control Board regulations, effective May 23, 1972, requires that defendant have a permit from the Agency to operate his gravel pit. There is no question then, that the Agency exercises some jurisdiction over defendant's operation. The issue before this court is whether the EPA was intended to supersede the McHenry County zoning ordinance enacted pursuant to the powers conferred by the County Zoning Act insofar as such ordinance relates to gravel pit operations.

Sec. 1 of the County Zoning Act (Ill.Rev.Stat., 1975, ch. 34, par. 3151 et seq.) grants to counties the power to regulate and restrict the use of land "(f)or the purpose of promoting the public health, safety, morals, comfort and general welfare, conserving the values of property throughout the county, lessening or avoiding congestion in the public streets and highways, and lessening or avoiding the hazards to persons and damage to property resulting from the accumulation or runoff of storm or flood waters * * *." This court has recognized that the interests of a landowner must be balanced against the interests of both others in the area and the surrounding public in general, and that such balancing is a problem of local concern. County of DuPage v. Harris (1967), 89 Ill.App.2d 101, 231 N.E.2d 195.

The General Assembly has since enacted the Environmental Protection Act. The purpose of that Act, as stated in sec. 2(b), is "to establish a unified, state-wide program * * * to restore, protect and enhance the quality of the environment * * *." It was also specifically found in sec. 2(a)(iii) that water pollution, "noise, and other environmental problems are closely interrelated and must be dealt with as a unified whole in order to safeguard the environment * * *."

The EPA contains no express repeal of the County Zoning Act. Neither does it repeal the County Zoning Act by implication by covering the entire subject matter of the Zoning Act with the intent of being a substitute for it. If there is to be a repeal by implication, it must be due to the irreconcilability of the provisions of the subsequent statute when compared to those of the earlier statute. (See, County of DuPage v. Harris.)

A number of cases provide some guidance in making this determination. O'Connor v. City of Rockford (1972), 52 Ill.2d 360, 288 N.E.2d 432, involved an attempt by Rockford to establish a sanitary landfill in an unincorporated area. Neighboring landowners sought to prevent the institution of the landfill by the application of the county zoning ordinance. The supreme court held that the EPA preempted the county zoning ordinance which required a conditional use permit. The court reasoned that the legislative intent of the EPA was the establishment of a unified state-wide program for such matters and therefore the issuance of the Agency permit was all that was required to operate the landfill.

This...