Moore v. Illinois Pollution Control Bd., 5-88-0684

• Decision Date: 29 August 1990
• Docket Number: No. 5-88-0684,5-88-0684
• Citation: 203 Ill.App.3d 855,561 N.E.2d 170
• Parties: , 148 Ill.Dec. 864 Rick MOORE and Leonard Morris, Appellants, v. ILLINOIS POLLUTION CONTROL BOARD, Wayne County Board, Daubs Landfill, Inc., and Edith Simpson, Appellees.
• Court: United States Appellate Court of Illinois

Page 170

561 N.E.2d 170

203 Ill.App.3d 855, 148 Ill.Dec. 864

Rick MOORE and Leonard Morris, Appellants, v. ILLINOIS POLLUTION CONTROL BOARD, Wayne County Board, Daubs Landfill, Inc., and Edith Simpson, Appellees.

No. 5-88-0684.

Appellate Court of Illinois,

Fifth District.

Aug. 29, 1990.

Thomas L. Kilbride, Klockau, McCarthy, Ellison & Marquis, P.C., Rock Island, for appellants.

Immel, Zelle, Ogren, McClain, Germeraad & Costello, Springfield (Thomas J. Immel, of counsel), for Daubs Landfill, Inc.

Neil F. Hartigan, Atty. Gen., Robert Ruiz, Sol. Gen., Office of the Atty. Gen., Chicago (James L. Morgan, Asst. Atty. Gen., Environmental Control Div., Springfield, of counsel), for Illinois Pollution Control Bd.

Presiding Justice LEWIS delivered the opinion of the court:

This is the second appeal in this case, which arises out of the approval, by the Wayne County Board, of site location suitability for a new regional pollution control facility. Earlier, in Daubs Landfill, Inc. v. Pollution Control Board (1988), 166 Ill.App.3d 778, 117 Ill.Dec. 626, 520 N.E.2d 977 (Daubs I ), we held that, despite an error in the legal description of the proposed landfill location, notice was sufficient to vest the county board with jurisdiction where the narrative description of the property was otherwise accurate as stated in the notice of request that was mailed to adjoining landowners and published in the local newspaper. On April 8, 1986, Daubs Landfill, Inc. (hereafter referred to as "Daubs") had filed an application for location approval for a regional pollution control facility. Following a hearing the application was approved by the Wayne County Board in findings filed on September 30, 1986. Upon review initiated by a petition filed with the Pollution Control Board (hereafter referred to as "PCB") on November 6, 1986, the PCB had determined that the Wayne County Board lacked jurisdiction to proceed because of the descriptive defect in the notice of request for site location approval prepared by Daubs, sent to adjoining landowners, and published in the Wayne County Press. In Daubs I we reversed the order of the PCB vacating the siting approval of the Wayne County Board and remanded the cause for consideration of the remaining issues that had been raised for the PCB's review by the appellants, Rick Moore and Leonard Morris.

Upon remand the PCB found that there was no fundamental unfairness in the proceeding before the Wayne County Board and that the county board's decision concerning the statutory criteria of section 39.2(a) of the Environmental Protection Act (Ill.Rev.Stat.1985, ch. 111 1/2, par. 1039.2(a)) (hereafter referred to as the "Act") was not against the manifest weight of the evidence. In an order adopted June 2, 1988, the PCB affirmed the decision of the Wayne County Board granting site location suitability approval to Daubs.

Following the PCB's affirmance, the appellants moved on July 7, 1988, to vacate the order of June 2, 1988. In that motion appellants stated, for the first time, that the applicant, by failing to serve notice of its request for location approval upon the Wayne County Bank and Trust Company, had failed to perfect service of notice upon all property owners within the subject area not solely owned by the applicant and on the owners of all property within 250 feet in each direction of the lot line of the subject property, as required by section 39.2(b) of the Act (Ill.Rev.Stat.1985, ch. 111 1/2, par. 1039.2(b)). Section 39.2(b) states in pertinent part:

"No later than 14 days prior to a request for location approval the applicant shall cause written notice of such request to be served either in person or by registered mail, return receipt requested, on the owners of all property within the subject area not solely owned by the applicant, and on the owners of all property within 250 feet in each direction of the lot line of the subject property, said owners being such persons or entities which appear from the authentic tax records of the County in which such facility is to be located * * *."

The appellants attached as an exhibit to their motion an unnotarized "Certification of Tax Record Ownership of Property," dated June 24, 1988, and signed by Imogene Brown, Supervisor of Assessments, Wayne County, Illinois. In the "Certification" is the statement that she had determined that for the entire year of 1986 the owner of two parcels in Section 5 of Township 2 South, Range 7 East, was Wayne County Bank and Trust Company, as shown by the authentic tax records for 1986. The subject site was located in Section 5. The appellants asserted that, inasmuch as the affidavit of mailing, dated March 7, 1986, listing property owners who received the pre-filing notice, omits the name of Wayne County Bank and Trust Company, the applicant's failure to serve notice on the Wayne County Bank and Trust Company constitutes a jurisdictional defect in the prior proceedings, "divesting" the Wayne County Board and the PCB of jurisdiction. The appellants asked that the PCB's order of June 2, 1988, be vacated on jurisdictional grounds. In the alternative appellants asked the PCB to "remand and reopen this cause for further proceedings on the issue of perfection of service on all property owners and for other appropriate relief."

Upon Daubs' objections to the appellants' motion to vacate, the PCB directed the parties to submit briefs concerning the jurisdictional issue. Thereafter, following the submission of briefs, on October 6, 1988, with one member dissenting, the PCB entered an order in which it found that "this jurisdictional claim cannot be raised at this late date." The PCB distinguished subject matter jurisdiction, which may, it said, be contested at any time, from jurisdiction of the particular case, stating that "jurisdiction of the subject matter does not mean simple jurisdiction of the particular case, but jurisdiction of the class of cases to which that individual case belongs." The PCB concluded that

"the only jurisdictional claim which could be raised for the first time at this point in the proceeding is a claim that the Wayne County Board does not have jurisdiction over petitions for local siting approval. Pursuant to Section 39.2 of the Act the Wayne County Board is the only body which can have jurisdiction over applications for approval of sites within Wayne County which are outside any municipal boundary. Petitioners do not contend otherwise. This Board cannot now consider a claim that certain notice was not given when that claim has never been advanced before. The proper time to raise such a claim is before the County Board or in a petition to this Board for review of siting approval, not in a motion to vacate filed nearly two years after the County Board's decision."

In his dissent Chairman Dumelle observed that section 39.2(b) of the Act sets forth the notice requirements of a site location suitability application, requirements which have been held to be, he says, "jurisdictional," citing, inter alia, Browning-Ferris Industries, Inc. v. Illinois Pollution Control Board (1987), 162 Ill.App.3d 801, 114 Ill.Dec. 649, 516 N.E.2d 804, Concerned Boone Citizens, Inc. v. M.I.G. Investments, Inc. (1986), 144 Ill.App.3d 334, 98 Ill.Dec. 253, 494 N.E.2d 180, Village of Lake in the Hills v. Laidlaw Waste Systems, Inc. (1986), 143 Ill.App.3d 285, 97 Ill.Dec. 310, 492 N.E.2d 969, and Kane County Defenders, Inc. v. Pollution Control Board (1985), 139 Ill.App.3d 588, 93 Ill.Dec. 918, 487 N.E.2d 743. He would, he said, hold that the action of the Wayne County Board on the application was void ab initio:

"Consistent with the strict interpretation of the notice requirements as jurisdictional requirements articulated in the above-cited cases, I believe that if indeed the Wayne County Bank was the owner of parcels of the subject site, as evidence [sic] by the authentic tax records of the County, and the Wayne County Bank was not served with notice, then the Wayne County Board was without jurisdiction to hear the application and grant its approval thereon. Likewise, this Board is without jurisdiction to review the Wayne County approval."

The appellants have appealed to this court raising three issues for review: (1) whether the applicant, Daubs, "perfected all jurisdictional pre-filing notice requirements and whether appellants may raise the jurisdictional defect before the Illinois Pollution Control Board"; (2) whether the flood-plain decision is against the manifest weight of the evidence absent flood-proofing plans or a determination of the 100-year flood plain and whether the PCB's affirmance of the flood-plain decision allows an impermissible delegation of statutory authority; and (3) whether the decisions concerning minimal effect on surrounding property values, traffic plan, and operational plans are against the manifest weight of the evidence or otherwise contrary to law.

Concerning the first issue presented, that is, the question pertaining to jurisdiction, the appellants contend that in Daubs I we held that "subject matter jurisdictional notice requirements are the statutory requirements specifically identified in the statute." Appellants maintain that the right to assert a jurisdictional issue exists at any time and in any proceeding, directly or collaterally, and that this rule is applicable to administrative proceedings. They conclude that

"[t]he statutory scheme is clear that the perfection of pre-filing notices is a condition precedent. The Wayne County Board's jurisdictional authority is limited by statute, and absent proof of compliance with the statutory notice requirements, the Wayne County Board had no subject matter jurisdiction in this particular siting proceeding."

The appellee PCB argues that it properly denied appellants' jurisdictional challenge as untimely and as having been waived because the jurisdictional challenge here addresses not subject matter jurisdiction but...