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Lake County Cont. Assn. v. Pollution Cont. Bd.

JULY 31, 1972.




APPEAL from the Illinois Pollution Control Board.


This appeal arises from the same group of complaints and March 31, 1971, order of the Pollution Control Board of the State of Illinois (hereinafter referred to as "Board") as was involved in our No. 71-113, North Shore Sanitary District v. Pollution Control Board (1972), 5 Ill. App.3d 1050. This case is distinctive in that petitioners, Lake County Contractors Association and Lake County Home Builders Association (hereinafter referred to as "Associations"), were not parties to proceedings before the Board, and only Paragraph 7 of the Order is appealed from, namely:

"The District shall not permit any additions to present sewer connections, or new sewer connections to its facilities until the District can demonstrate to the Board that it can adequately treat the wastes from those new sources so as not to violate the Environmental Protection Act, or the rules and regulations promulgated thereunder."

The Board was created by the Environmental Control Act effective July 1, 1970, Ill. Rev. Stat. 1971, ch. 111 1/2, par. 1001 et seq. (hereinafter referred to as the "Act"), and under Section 1041 of that Act review is afforded directly to this Court from final orders of the Board, pursuant to the provisions of the Administrative Review Act.

The League of Women Voters filed a complaint with the Board alleging that the North Shore Sanitary District (hereinafter referred to as "District") was discharging effluent from its treatment plants and sewage systems degrading the waters of Lake Michigan in specified ways below stated permissible standards and asked for an order requiring the District to correct these particular violations and for "other appropriate relief."

Facktor, et al., subsequently alleged the existence of odors and contaminants in the vicinity of their homes and sought an order of the Board directing the District to cease and desist operation of an existing sewerage treatment plant in a manner violative of the Act and prohibiting construction of an additional secondary treatment plant in Highland Park. The Board not only ruled against Facktor, et al., but ordered this group of complainants to cease and desist from all further actions against the District regarding expansion, bond issues, and particularly the siting of the Clavey Road Plant.

The third complainant was the Illinois Environmental Protection Agency (hereinafter referred to as "Agency"). The Agency obtained leave to intervene before the Board and complained that the District discharged improperly treated effluent into Lake Michigan from certain of its plants and operated the Clavey Road waste treatment plant so as to emit obnoxious odors. All complaints were consolidated for hearing before the Board.

While this review was pending in this court, the Agency moved to dismiss the Association's complaint filed in this court which seeks judicial review of the order of the Board on the ground that its order was not final to the Associations, or in the alternative, that the Associations had not exhausted their administrative remedies, as a variance procedure may be instituted for individual parcels of land. This motion was ordered taken with the case. The Agency argues additionally in its brief that the Associations do not have standing to raise constitutional objections of landowners to the sewer ban.

Serious questions are raised in this appeal, such as alleged violation of the guarantees of equal protection and due process of law as well as claims the Board did not consider certain facts and circumstances which the General Assembly directed it to consider in making its orders and that certain statements contained in the Board's order were without foundation in the evidence.

• 1 Administrative as well as judicial proceedings are governed by the fundamental principles and requirements of due process of law. (Brown v. Air Pollution Control Control Board (1967), 37 Ill.2d 450, 454, 227 N.E.2d 754.) The order is obviously broad and restrictive of the rights of many persons who did not participate in the hearings before the Board. The restrictions imposed by the order have no blanket immunity from challenge in the courts, but the narrow question here is whether the Associations can obtain judicial review pursuant to the Administrative Review Act. We are constrained to hold they cannot and accordingly dismiss their complaints. In so doing, we do not approve, but rather specifically reject, the rationale of the Agency.

• 2 The order of the Board recites that it is "final" and indeed it terminated proceedings on the three consolidated complaints before the Board. Judicial review of a final, comprehensive administrative order cannot and should not be avoided or defeated by imposing an additional requirement to seek and be denied individual variances. We cannot agree, moreover, that constitutional objections can be raised only by landowners.

• 3, 4 The basis of our holding is that the Associations were not parties to the proceeding before the Board, they did not appear before the Board, and consequently their interest and aggrievement in the matter does not appear in the record of those proceedings. Although a voluminous transcript of proceedings has been filed, no abstract of the record has been made as the Associations state that non-evidence cannot be abstracted. The Supreme Court has held that the right to review a final administrative decision is limited to those parties of record in the proceeding before the administrative agency whose rights, privileges, or duties are affected by the decision. (222 E. Chestnut St. Corp. v. Board of Appeals (1956), 10 Ill.2d 132, 135, 139 N.E.2d 218; Winston v. Zoning Board of Appeals (1951), 407 Ill. 588, 95 N.E.2d 864 at 868.) In upholding the issuance of a writ of mandamus to persons who had been denied the right to participate in the administrative proceeding, the court said in Frank v. State Sanitary Water Board (1961), 33 Ill. App.2d 1 at 7, 178 N.E.2d 415:

"It * * * appears that the right of administrative review is limited to the parties to the administrative proceeding."

The Administrative Review Act governs judicial review when its provisions, as here, are expressly adopted by the statute creating the agency, and only parties to the proceeding are barred from obtaining judicial review of an administrative decision if they do not pursue their remedy within the time and in the manner provided. (Ill. Rev. Stat. 1971, ch. 110, sec. 265.) As the Associations were not parties to the proceeding before the Board, it would therefore follow that the ...

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