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Society of Divine Word v. County of Cook

MARCH 21, 1969.

SOCIETY OF THE DIVINE WORD, AN ILLINOIS NOT-FOR-PROFIT CORPORATION, AND MISSIONARY SISTERS SERVANTS OF THE HOLY SPIRIT, AN ILLINOIS NOT-FOR-PROFIT CORPORATION, ET AL., PLAINTIFFS-APPELLEES,

v.

COUNTY OF COOK, A BODY POLITIC AND CORPORATE, ET AL., DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Cook County, Law Division; the Hon. CHARLES S. DOUGHERTY, Judge, presiding. Affirmed and remanded.

TRAPP, P.J.

Defendant, Cook County, and intervening defendants appeal from a judgment of the Circuit Court of Cook County declaring the Cook County Zoning Ordinance unconstitutional to the extent that it prohibits use of plaintiffs' property for a sanitary landfill. The judgment enjoins interference with the use of plaintiffs' property as a landfill and orders the defendant county to issue any necessary license and permits for the work in conformity with the judgment and in conformity with the regulations of the county. The plaintiffs are Society of the Divine Word and Missionary Sisters, Servants of the Holy Spirit, each an Illinois not-for-profit corporation, which own the land in question. Intervening plaintiffs are the Villages of Winnetka, Kenilworth, Wilmette, Glencoe and the City of Evanston, each of which intervening plaintiffs desire the subject property to be used for a sanitary landfill. Intervening defendants are the Villages of Northbrook and Glenview. They desire the proposed use to be prohibited on the plaintiffs' property.

Defendants contend that the Villages of Glenview and Northbrook have a right to enforce the Illinois nuisance statute to prevent the proposed use, and a right to be protected by the county zoning ordinance. They also contend that the prohibition of a sanitary landfill by the county zoning ordinance is a reasonable regulation and that the trial court committed errors, especially in regard to the admission of evidence.

We shall first consider the applicability of the Illinois nuisance statute to the situation for the reason that if it is applicable to forbid the proposed use of the subject property, it would be an effective justification of the action of the county in denying a permit for the proposed use and would give persons affected by the nuisance a right to have the statute enforced. Such, in either case, would effectively prevent the proposed use of the property for a sanitary landfill. If the nuisance statute does not apply, we are remitted to the question of the validity of the zoning regulation.

The nuisance statute relied upon is Ill Rev Stats 1965, c 100 1/2, § 27, as follows:

"27. Dumping garbage. It is unlawful for any person to dump or place any garbage or other offensive substance within the corporate limits of any city, village or incorporated town other than (1) the city, village or incorporated town within the corporate limits of which, such garbage or other offensive substance shall have originated, or (2) a city, village or incorporated town which has contracted with the city, village or incorporated town within which the garbage has originated, for the joint collection and disposal of garbage; nor shall any such garbage or other offensive substance be dumped or placed within a distance of one mile of the corporate limits of any other city, village or incorporated town

"Any person violating any provisions of this section is guilty of a misdemeanor. . . ."

The substance of the above provision was a part of the Criminal Code which was added to other nuisance prohibitions of the Criminal Code in 1933 (Laws of 1933, p 475). In 1963, it was transferred to the Illinois nuisance statute, c 100 1/2, Ill Rev Stats.

Also in 1963 the legislature adopted "An Act to prohibit open garbage dumps or sites," (Ill Rev Stats, c 111 1/2, § 461). It provided:

"No person shall operate or cause to be operated an open dump or site for the placing, depositing or dumping of garbage. Any such dump or site in existence on the effective date of this Act shall be completely covered with earth within one year after the effective date of this Act.

"This Act shall not apply to the sanitary landfill and incinerator methods of garbage disposal." (Emphasis supplied.)

In 1965 the legislature adopted "An Act in relation to the registration and regulation of refuse disposal sites and facilities, etc." (Ill Rev Stats, c 111 1/2, § 471 et seq.) This Act required the Department of Public Health to prescribe minimum standards for the location, design, construction, sanitation, operation and maintenance of disposal sites and facilities. Refuse was defined to include garbage. It applied to operation of sites by both private individuals and governmental bodies and it required registering all sites with the Department of Public Health. The Act did not apply to counties which had established a county department of public health and provided for exemption certificates for governmental bodies which had regulations meeting minimum standards of refuse disposal provided by the State Department of Public Health.

The testimony of Matthew D.R. Riddell, registered professional engineer and practicing sanitary engineer for twenty years, that the sanitary landfill method of disposal was pioneered by New York City and Fresno, California, in the 1930's clearly indicates that this method is of relatively recent origin. In a statute regarding open dumps, adopted in 1963 (c 111 1/2, § 461, Ill Rev Stats), the legislature made sanitary landfills and incinerators an exception by express statement. Since the statute prohibits open dumps everywhere, it is a legislative recognition of the fact that a sanitary landfill is a different thing and is not objectionable. The use of the word "sanitary" by the legislature in connection with the word landfill clearly indicates a legislative recognition that a landfill which includes garbage or other material also properly subject to incineration, is not a nuisance.

By reason of the recent origin of the sanitary landfill method of disposal and by reason of the subsequent legislative recognition of the same as unobjectionable, we cannot conclude that section 27 of the Illinois nuisance statute (c 100 1/2, Ill Rev Stats) was or is intended to apply to a sanitary landfill. While it does not specifically mention sanitary landfills as such, the comprehensive statute of 1965, placing regulation of disposal sites and facilities under the jurisdiction of the Department of Public Health of Illinois (Ill Rev Stats, c 111 1/2, §§ 471-476), is a further legislative recognition of the fact that the character of the operation rather than its specific location delineates the guideline of public tolerability.

We cannot subscribe to defendants' theory that the composite reading of the various statutes now converts a statute (§ 27, c 100 1/2), which was directed against "dumping garbage" within one mile of a city in which the garbage did not originate, to a combined statute which forbids "open" dumping of garbage anywhere (Ill Rev Stats, c 111 1/2, § 461) and forbids a sanitary landfill within one mile of a city in which the landfill material did not originate.

Defendants argue that legislation introduced at the 1965 and 1967 sessions of the General Assembly to exempt sanitary landfills from the Illinois Nuisance Statute failed to pass and that there is thus a showing of legislative intent that sanitary landfills are within the prohibition of the nuisance statute and should be kept there. In re Estate of Miller, 35 Ill. App.2d 349, on 352, 182 N.E.2d 913, does attribute some significance to the fact that legislation, which would clearly have changed the law in reference to distribution of assets of an estate to heirs living in a communist dominated country, was tabled. It was said to strengthen the court's view that there was no existing legislation on the subject. In Ambassador East, Inc. v. City of Chicago, 399 Ill. 359, 77 N.E.2d 803, a statute excluded "hotels" from a rent control regulation and the court held that the fact that the Senate Committee had reported against distinguishing transient hotels from residential hotels was strong evidence that failure to adopt an amendment making a distinction evidenced an intent to include hotels of all types in the exception. Plaintiffs, on the other hand, cite Gannon v. Chicago, M., St. P. & P. Ry. Co., 22 Ill.2d 305, 175 N.E.2d 785, to the effect that a failure to amend a statute is hardly conclusive of the intention of the legislature at the time of the adoption of the act. They also cite Order of Railway Conductors v. Swan, 329 U.S. 520, 91 L Ed 471, to the effect that where no hearings were held or reports made, the failure of Congress to amend a statute is without meaning for the purpose of statutory interpretation. We note that all three bills which were introduced were entitled, "For an act to amend Section 221a of `An Act to revise the law in relation to criminal ...


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