Willowbrook Motel Partnership v. Pollution Control Bd.

• Decision Date: 26 July 1985
• Docket Number: No. 83-2404,83-2404
• Parties: , 90 Ill.Dec. 232 WILLOWBROOK MOTEL PARTNERSHIP, a limited partnership, Plaintiff-Appellant, v. POLLUTION CONTROL BOARD; Illinois Environmental Protection Agency; and County of DuPage, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 1032

481 N.E.2d 1032

135 Ill.App.3d 343, 90 Ill.Dec. 232

WILLOWBROOK MOTEL PARTNERSHIP, a limited partnership Plaintiff-Appellant, v. POLLUTION CONTROL BOARD; Illinois Environmental Protection Agency; and County of DuPage, Defendants-Appellees.

No. 83-2404.

Appellate Court of Illinois,

First District, Fifth Division.

July 26, 1985.

[90 Ill.Dec. 233] William J. Harte, Ltd., Chicago, and Jeffry J. Knuckles, Naperville, for plaintiff-appellant

Neil F. Hartigan, Atty. Gen., Chicago (James C. Siebert, Asst. Atty. Gen., Chicago, of counsel), for defendants-appellees.

LORENZ, Justice:

This is a direct review of a decision of the Illinois Pollution Control Board (the Board) denying a variance which would have allowed petitioner to connect its proposed motel into the Marionbrook sewage system. The Board denied the petition for a variance on grounds that the Marionbrook facility was being operated in excess of its design capacity and that any hardship suffered by petitioner was unsupported and self-imposed, and failed to meet the statutory "arbitrary or unreasonable hardship" requirement. (Ill.Rev.Stat.1981, ch. 111 1/2, par. 1035.) On review, petitioner contends that the Board's findings are against the manifest weight of the evidence. We summarize the facts as follows.

Petitioner has an interest in land located on the northeast corner of Route 83 and Interstate Highway 55 in unincorporated DuPage County, upon which land it plans to build a motel. Petitioner sought a permit authorizing the motel's connection to the DuPage sewer system. The connection would cause discharge to flow into the Marionbrook Sewage Treatment Plant, which is operated by the DuPage County Department of Public Works (the Department). The Chief Engineer of the Department refused to issue the sewer connection permit because the Marionbrook facility was under "restricted status," meaning that the plant had reached design capacity. (See Ill.P.C.B.Reg. ch. 3, rule 604(b), now codified at 35 Ill.Admin.Code § 306, 402.) In addition, the circuit court of DuPage County had found the Marionbrook Plant in violation of its National Pollution Discharge Elimination System permit.

Petitioner requested that the Board grant a variance from restricted status until remedial measures ordered by the circuit court could be implemented. The petition stated that petitioner was a partnership composed of Hortense Singer and the Marcus Corporation, and that Singer had owned the subject property for 29 years. She had agreed to "submit" the property to the partnership, conditioned upon the issuance of proper permits, in exchange for $120,000 upon which she depended for her retirement years. The petition stated that the property's fair market value with the sewer connection was $150,000, but that the property would be used only as a parking or storage lot absent sewer connection.

The petition recited further that the circuit court had amended its order to allow additional loading to the Marionbrook facility according to an allocation system. The Chief Engineer of the Department of Public Works calculated that completion of the Knollwood interceptor sewer, anticipated in February of 1984, would make available sufficient allocation under the court order to connect petitioner's motel. The Illinois Environmental Protection Agency recommended that petitioner's variance be granted. Petitioner waived hearing.

The Board denied the petition on July 14, 1983, stating that despite the court's allocation system, the Marionbrook plant continued to operate in excess of design capacity. The Board noted that the court conditioned use of the allocation system upon granting of a variance, and that variances were warranted only where a petitioner could show arbitrary or unreasonable hardship. The Board noted further that the petitioner obtained its interest in the land while the Marionbrook system was under court order The Board declined to vacate its order on September 8, 1983, and petitioner filed for direct review in this court on October 5, 1983.

[90 Ill.Dec. 234] and concluded that its development plans constituted a gamble on its ability to obtain permits. The Board stated that petitioner's economic loss was self-imposed, and therefore neither arbitrary nor unreasonable. In addition, the Board stated that the hardship suffered by petitioner was simply a delay in investment opportunity, the predictable consequence of placing a sewage treatment plant on restricted status. Finally, the Board maintained that petitioner's allegations of hardship were insufficiently supported.

OPINION

We must first decide whether we have jurisdiction, an issue which we raised at oral argument in this cause. The Illinois Constitution provides that "[t]he Appellate Court shall have such powers of direct review of administrative action as provided by law." (Ill. Const. 1970, art. VI, § 6.) Section 41 of the Illinois Environmental Protection Act (the Act) provides in pertinent part:

"[A]ny person who has been denied a variance * * * may obtain judicial review * * * directly in the Appellate Court for the District in which the cause of action arose and not in the Circuit Court." (Ill.Rev.Stat.1981, ch. 111 1/2, par. 1041 (emphasis added).)

Where jurisdiction is conferred by statute, the general rule is that the legislature may place such conditions on the ability of the court to hear the matter as it deems fit. (See Brown v. Van Keuren (1930), 340 Ill. 118, 172 N.E. 1; McCue v. Brown (1974), 22 Ill.App.3d 236, 317 N.E.2d 398.) If the language in Section 41 is construed as such a condition, it appears that we are without jurisdiction, for the instant cause of action arose in the Second District, not the First.

Our supreme court considered this Section 41 language in Rockford Drop Forge Co. v. Pollution Control Board (1980), 79 Ill.2d 271, 37 Ill.Dec. 600, 402 N.E.2d 602, and termed the issue one of venue. The court did not consider jurisdiction, but apparently deemed venue waived, and decided to reach the merits in the interest of judicial economy. (79 Ill.2d 271, 275-76, 37 Ill.Dec. 600, 402 N.E.2d 602.) Our research supports this approach. Jurisdiction is the power of the court to hear and decide a class of cases whereas venue merely regulates where the case is to be heard. (Baltimore & Ohio R.R. Co. v. Mosele (1977), 67 Ill.2d 321, 328, 10 Ill.Dec. 602, 368 N.E.2d 88; United Biscuit Co. v. Voss Truck Lines, Inc. (1950), 407 Ill. 488, 95 N.E.2d 439.) In Illinois, "[t]he judicial power is vested in a Supreme Court, an Appellate Court and Circuits Courts" (Ill. Const.1970, art. VI § 1), and the districts are essentially elective units and administrative branches of the same court. (See Ill. Const.1970, art. VI §§ 1-6, 12 and 18; Ill.Rev.Stat.1983, ch. 37, par. 25; Renshaw v. General Telephone Co. (1983), 112 Ill.App.3d 58, 67 Ill.Dec. 778, 445 N.E.2d 70.) We hold that Section 41 of the Illinois Environmental Protection Act vests jurisdiction in "the Appellate Court" and establishes venue in "the District in which the cause of action arose." We conclude that we have jurisdiction to consider this case, and we find that the parties have waived venue. Cf. Kane County Defenders, Inc. v. Pollution Control Board, No. 84-1518 (order entered September 10, 1984, transferring petition to Second District upon timely objection to venue in First District).

On the merits, petitioner contends that the Board's denial of a variance was against the manifest weight of the evidence. Relying upon Monsanto Co. v. Pollution Control Board (1977), 67 Ill.2d 276, 10 Ill.Dec. 231, 367 N.E.2d 684 and Environmental Protection Agency v. Lindgren Foundry Co. (1970), 1 Ill.P.C.B.Op. 11, petitioner maintains that in order to decide whether a variance should be granted, the Board is required to balance individual hardship and environmental impact. Petitioner argues that the Board failed to produce evidence associating the proposed sewer connection with any adverse environmental impact, and petitioner asserts that such impact would be insignificant. In view of recent improvement in water quality at the Marionbrook plant, and the additional capacity provided by the order of the Circuit Court, petitioner reasons, denial of a variance imposes an arbitrary and unreasonable hardship. Further, petitioner argues that the Board erred in finding insufficient evidence of hardship.

In Monsanto Co. v. Pollution Control Board (1977), 67 Ill.2d 276, 10 Ill.Dec. 231, 367 N.E.2d 684, the Board had granted four successive 12-month variances to one of Monsanto's chemical plants, but the Board had imposed progressively stiffer conditions upon each variance. Monsanto appealed from the fourth variance and argued that according to the evidence, the conditions were impossible to meet. This court reversed and remanded to the Board, stating that the conditions were without evidential support. Monsanto Co. v. Pollution Control Board (1976), 39 Ill.App.3d 333, 338-39, 350 N.E.2d 289, rev'd (1977), 67 Ill.2d 276, 10 Ill.Dec. 231, 367 N.E.2d 684.

The Illinois supreme court reversed the appellate court and reinstated the decision of the Pollution Control Board. The court distinguished between the fact-finding function and the policy-making function of administrative agencies, noting with respect to the former:

"Section 35 of the Environmental Protection Act gives the Board authority to decide if a regulation imposes an arbitrary or unreasonable hardship on an individual polluter. If the Board finds such hardship, it may then grant a variance. This decision is essentially quasi-judicial, and, as such, must be supported by a written opinion with specific findings which are entitled to a presumption that they are prima facie true and correct (Ill.Rev.Stat.1975, ch. 110, par. 274). Nonetheless, if the factual determinations of the Board, or of any administrative agency, are contrary to the manifest weight of the...