Stark v. Pollution Control Bd.
| Decision Date | 06 December 1988 |
| Docket Number | No. 88-0213,88-0213 |
| Citation | 177 Ill.App.3d 293,532 N.E.2d 309,126 Ill.Dec. 624 |
| Parties | , 126 Ill.Dec. 624 John STARK, Petitioner-Appellant, v. POLLUTION CONTROL BOARD, Cook County Board of Commissioners, and Northwest Municipal Conference, Respondents-Appellees. |
| Court | United States Appellate Court of Illinois |
Michael J. Polelle, Chicago, for John Stark.
Neil F. Hartigan, Atty. Gen., and Robert Ruiz, Sol. Gen. (Joseph M. Claps, Michelle
D. Jordan and Matthew J. Dunn, of counsel), for Illinois Pollution Control Bd.
Richard M. Daley, State's Atty., Glenn E. Carr and Joan Cherry, Deputy State's Attys. (Glenn C. Sechen, William Motto, Philip Mitchell and Eric Dunham, of counsel), for Cook County Bd. of Comr's.
Thomas R. Burney and Matthew M. Klein of Schain, Firsel & Burney, Ltd., Chicago, for Northwest Municipal Conference.
This is an appeal from an order of the Illinois Pollution Control Board (IPCB) dismissing the petition of John Stark for review of a decision of the Cook County Board which granted conditional site approval for a proposed balefill in an unincorporated area of Cook County and a conditional special use permit to the respondent Northwest Municipal Conference. The ground for dismissal ascribed by the IPCB was that it lacked jurisdiction to review actions of the Cook County Board.
The only pertinent record before us is the petition for review filed before the IPCB. For the purposes of this appeal the factual allegations of the petition will be taken as true.
Alex Seith, the chairman of the Cook County Zoning Board of Appeals, conducted hearings on the application of the Northwest Municipal Conference for issuance of a special use permit for construction of a new regional pollution control facility known as the Bartlett balefill. The proposed balefill consists of 410 acres in an unincorporated area of Cook County about one mile from the Village of Bartlett.
During the hearings, Mr. Seith took the position that matters of health, safety and welfare were not the concern of the Zoning Board of Appeals or the Cook County Board of Commissioners and prevented attorneys for the City of Elgin, the Village of South Elgin, and the Village of Bartlett from adequately and fully developing a record to show the dangers to health, safety and welfare posed by the proposed balefill. Mr. Seith specifically denied that the Cook County Zoning Board of Appeals had jurisdiction over safety considerations relating to the proposed balefill and that such considerations were within the "exclusive jurisdiction" of the Environmental Protection Agency.
The petitioner, John Stark, resides in the Village of Bartlett, Du Page County, and has been a resident of Bartlett for approximately eight years. He lives about five miles from the site of the proposed balefill "so as to be affected by its construction and operation." He personally attended all but one of the hearings held by the County Zoning Board of Appeals and at one hearing presented objections to the proposed balefill. He also introduced, on behalf of a citizens'-action group, the testimony of an assistant professor of pharmacology who testified regarding the dangers of toxic waste at the site of the proposed balefill.
On November 16, 1987, the Cook County Board of Commissioners approved the site location of the proposed balefill and granted approval of a special use permit to the defendant, Northwest Municipal Conference, which consists of a group of municipalities. The approval was based on the hearings held by the Cook County Zoning Board of Appeals.
The petition for review further contended that the approval by the Cook County Board of the application for the special use permit was generally in violation of one or more of seven specific criteria expressly set forth in section 39.2(a) of the Illinois Pollution Control Act for determining the suitability of a new regional pollution control facility. The petitioner asked the IPCB either to reverse the approval of the Cook County Board of Commissioners or, alternatively, to remand the matter to the Cook County Board or the Cook County Zoning Board of Appeals for further hearings and proceedings.
In its dismissal of the petition for review, the IPCB relied on section 39.2(h) of the Environmental Protection Act (the Act) (Ill.Rev.Stat.1985, ch. 111 1/2, par. 1039.2(h).) The Act provides that no permit may be granted by the Illinois Environmental Protection Agency unless the applicant has received approval by the county board of the county where the facility is located. (Ill.Rev.Stat.1985, ch. 111 1/2, par. 1039(c).) Section 40.1 provides that the grant or denial of approval by the county board shall be subject to review by the IPCB (Ill.Rev.Stat.1985, ch. 111 1/2, par. 1040.1.) Any appeal from the IPCB shall be made directly to the appellate court. (Ill.Rev.Stat.1985, ch. 111 1/2, par. 1041.) However, section 39.2(h) of the Act provides as follows (Ill.Rev.Stat.1985, ch. 111 1/2, par. 1039.2(h).):
"Nothing in this Section shall apply to any existing or any new regional pollution control facility located within an unincorporated area of any county having a population of over 3,000,000 or within the corporate limits of cities or municipalities with a population of over 1,000,000."
Only Cook County has a population over 3 million and only Chicago has a population over 1 million. Thus, all persons in the state seeking a special permit for a pollution control facility and all persons objecting to the issuance of a permit are covered by the Act except in cases involving facilities in Chicago or the unincorporated area of Cook County. The petitioner contends that the statute constitutes special legislation contrary to section 13 of article IV of the Illinois Constitution and a denial of equal protection of the law contrary to section 2 of article I.
The petitioner's claim, reduced to its essentials, is that any person aggrieved by the action of the Cook County Board, either in granting or denying relief, is denied equal protection of the law in that he must seek review directly to the circuit court rather than first to the IPCB.
The respondents, County of Cook, IPCB and Northwest Municipal Conference, have advanced several arguments in support of their opposition to the petitioner's position. At the outset, we accept the petitioner's argument that the fact that Cook County and Chicago are home rule powers is not dispositive of the matter. The act applies to home rule municipalities in Cook County other than Chicago. And we agree with the petitioner that he did not waive the constitutional question by failure to raise it before the IPCB. A party has the obligation of raising a constitutional question at the earliest fair opportunity. (Head-On Collision Line, Inc. v. Kirk (1976), 36 Ill.App.3d 263, 343 N.E.2d 534.) Since the circuit court has been bypassed by the legislative enactment that permits direct appeal to this court, we are the first fair opportunity the petitioner has had to raise the constitutional question.
The respondents contend that the petitioner lacks standing to bring this action. To have standing, a claimant must be a person "interested in the controversy." The supreme court in Underground Contractors Association v. City of Chicago (1977), 66 Ill.2d 371, 376, 5 Ill.Dec. 827, 830, 362 N.E.2d 298, 301, observed as follows:
The rule includes claims attacking the constitutionality of a statute. In order to challenge the constitutionality of a statute, a person must be directly or materially affected by the provision, and he must have sustained or be in immediate danger of sustaining a direct injury as a result of enforcement of the challenged statute. I.L.P. Constitutional Law, § 41; Cronin v. Lindberg (1976), 66 Ill.2d 47, 4 Ill.Dec. 424, 360 N.E.2d 360.
The petitioner has referred to two separate sections of the Illinois constitution which he says have been violated, the one dealing with special legislation and the other with equal protection of the law. It is recognized that, although they often overlap, they are not co-extensive. (Grace v. Howlett (1972), 51 Ill.2d 478, 283 N.E.2d 474.) But the standards used in determining whether an enactment violates the equal protection clause are the same as those used in determining a violation of the special legislation clause. (Friedman and Rochester, Ltd. v. Walsh (1977), 67 Ill.2d 413, 10 Ill.Dec. 559, 367 N.E.2d 1325.) Therefore, we judge that the standing to challenge either section is the same; and that the petitioner must allege that he has sustained or is in immediate danger of sustaining a direct injury from enforcement of the statute.
The only record before us is the petition for review filed before the IPCB; and the only factual allegations that could possibly support standing here are that the petitioner is a resident of the Village of Bartlett, Du Page County, who lives about five miles from the proposed balefill. The allegation that he will "be affected by [the balefill] construction and operation" is a conclusory allegation that is based solely on the allegation that he lives five miles from the proposed balefill.
The petitioner's argument is that "the stark reality is that only a resident of an unincorporated part of Cook County is deprived of the environmental procedures and standards of the act." He asks that we "strike out section 39.2(h) either entirely or partly as applied to [him] without doing any real harm to the statute or section 39.2 in particular." But the petitioner is not a...
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