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Carlson v. Village of Worth

DECEMBER 19, 1974.

HARRY A. CARLSON, PLAINTIFF-APPELLEE,

v.

THE VILLAGE OF WORTH, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. EDWARD J. EGAN, Judge, presiding.

MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:

Defendant, Village of Worth, Illinois, appeals from a summary judgment entered on plaintiff's declaratory judgment action which challenged the validity of defendant's ordinance for the licensing and regulation of sanitary landfills. The trial court declared the ordinance to be invalid and enjoined defendant from attempting to enforce its provisions against plaintiff's sanitary landfill operations. Upon appeal defendant contends:

1) The licensing and regulation of sanitary landfills are the proper subjects of ordinance enactment by a non-home rule municipality under the powers conferred in article 11 of the Illinois Municipal Code (Ill. Rev. Stat. 1971, ch. 24, par. 11-1-1 et seq.):

2) The Illinois legislature, with the enactment of the Environmental Protection Act (Ill. Rev. Stat. 1971, ch. 111 1/2, par. 1001 et seq.), has not preempted the field with respect to the licensing and regulation of sanitary landfills.

Plaintiff, Harry A. Carlson, is the holder of a legal interest in a tract of land commonly known as the Berg Pit, located within the municipal boundaries of defendant. On June 9, 1971, plaintiff was issued Permit No. 1971-19 by the Illinois Environmental Protection Agency, authorizing the operation of a sanitary landfill at the Berg Pit site. The permit stated that it was issued "subject to the standard conditions set forth * * *." which included the following:

"This permit is granted pursuant to Section 39 of the `Environmental Protection Act' and the `Rules and Regulations for Refuse Disposal Sites and Facilities' as authorized therein, and is subject to the following conditions:

4. This authority * * * (c) does not release the permittee from compliance with other applicable statutes of the State of Illinois, or with applicable local laws, regulations or zoning ordinances."

Defendant, having a population of less than 25,000 is not a home rule unit under article 7, section 6, of the 1970 Illinois Constitution, and has not elected to acquire that status by referendum. As a result, defendant has only those powers which have been delegated to such entities by statute. Ill. Const. (1970), art. 7, § 7.

On June 22, 1971, defendant enacted Ordinance No. 71-5 entitled "Village of Worth, Illinois Solid Waste Disposal Ordinance." The ordinance created permit requirements and regulations for the establishment and operation of sanitary landfills and other waste disposal facilities located within defendant's municipal boundaries. Subsequently, plaintiff filed a complaint for declaratory judgment, attacking the constitutionality of the ordinance and praying that defendant be enjoined from enforcing it against plaintiff's sanitary landfill operations. The challenge to the validity of the ordinance was twofold. In the first count of the complaint plaintiff alleged that as a non-home-rule unit defendant possessed only those powers expressly granted to it by the legislature, and that there existed no legislative grants empowering defendant to license or regulate sanitary landfills. The second count alleged that the ordinance was invalid because the legislature had preempted the field with the passage of the Surface-Mined Land Conservation and Reclamation Act (Ill. Rev. Stat. 1971, ch. 93, par. 201 et seq.) and/or the Environmental Protection Act (Ill. Rev. Stat. 1971, ch. 111 1/2, par. 1001 et seq.).

After a motion to dismiss the complaint was denied, plaintiff moved for summary judgment. On August 4, 1972, the trial court entered summary judgment for plaintiff on both counts which declared defendant's ordinance to be unconstitutional, invalid and void. (However, the record reflects that the trial court rejected the argument that the Surface-Mined Land Conservation and Reclamation Act preempted the field of sanitary landfill licensing and regulation, but did accept that argument as applied to the Environmental Protection Act.) The trial court further enjoined defendant from attempting in any manner to interfere with the plaintiff's sanitary landfill operations. Thereafter, this judgment was vacated sua sponte for the stated reason that the injunctive granted was broader than that prayed for in the complaint. On August 30, 1972 a subsequent judgment order was entered which again declared the ordinance unconstitutional, invalid and void, but limited the injunctive relief to restraining defendant from attempting to enforce the ordinance against plaintiff's sanitary landfill operations. It is from this second judgment order that defendant brings this appeal.

• 1 It will be unnecessary to consider the contention that the Illinois Municipal Code empowered defendant to enact the instant ordinance, as we conclude that the Environmental Protection Act has preempted the field of sanitary landfill licensing and regulation and thereby removed whatever authority defendant did have in that area. Whether a statute has or has not preempted the field so that no new regulation on that subject matter is within the power of a municipaliy is a question which requires an interpretation of the statute in light of its declared purpose and against the backdrop of prior legislation. (City of Rockford v. Floyd (1968), 104 Ill. App.2d 161, 243 N.E.2d 837.) Our conclusion that the doctrine of preemption arises in the instant case is based upon case law and the legislative history of the Environmental Protection Act.

In O'Connor v. City of Rockford (1972), 52 Ill.2d 360, 288 N.E.2d 432, the Illinois Supreme Court passed upon the relationship of the Environmental Protection Act to local ordinances. There, the City of Rockford, with the intention of operating a sanitary landfill thereon, had contracted to purchase land situated outside its municipal boundaries. The Illinois Department of Public Health had issued to the City a permit authorizing such operations. The owners of property adjacent to the proposed landfill sought a declaratory judgment that the City, prior to commencing landfill operations was required to secure county permission under the zoning ordinances of Winnebago County. The trial court's judgment in favor of the landowners was reversed by the appellate court. The supreme court relied for its decision on the Environmental Protection Act which became effective after the appellate court ruling. The opinion contains an excellent synopsis of the applicable provisions of the Act and will be quoted at length herein. The court stated at pages 366-368:

"In 1970 the legislature enacted the Environmental Protection Act (Ill. Rev. Stat. 1971, ch. 111 1/2, pars. 1001-1051) which repealed `An Act to prohibit open garbage dumps or sites' and `An Act in relation to the registration and regulation of refuse and disposal sites and facilities and making appropriations therefor.' Section 2(b) of this Act (par. 1002(b)) states: `It is the purpose of this Act, as more specifically described in later sections, to establish a unified, state-wide program * * * to restore, protect and enhance the quality of the environment * * *.' In section 20 (par. 1020) the General Assembly finds `that excessive quantities of refuse and inefficient and improper methods of refuse disposal result in scenic blight, cause serious hazards to public health and safety, create public nuisances, divert land from more productive uses, depress the value of nearby property, offend the senses, and otherwise interfere with community life and development' and declares: `It is the purpose of this Title [Title V: Land Pollution and Refuse Disposal] to prevent the pollution or misuse of land, to promote the conservation of natural resources and minimize environmental damage by reducing the difficulty of disposal of wastes and encouraging and effecting the re-cycling and re-use of waste materials, and upgrading waste collection and disposal practices.' Section 22 (par. 1022) provides that the Pollution Control Board established by the Act (par. 1005) may adopt regulations to promote the purposes of Title V and that `without limiting the generality of this authority, such regulations may among other things prescribe * * * Standards for the location, design, construction, sanitation, operation, maintenance, and discontinuance of the operation of refuse collection and disposal sites and facilities * * *.' Section 21(e) (par. 1021(e)) requires a permit from the Environmental Protection Agency created under the Act (par. 1004) for the location, design, operation and maintenance of a sanitary landfill, and section 39 of the Act (par. 1039) provides that the Agency may, in granting permits, `impose such conditions as may be necessary to accomplish the purposes of this Act, and as are not inconsistent with the regulations promulgated by the Board hereunder.'

Section 27 (par. 1027) provides that in promulgating regulations `the Board shall take into account the existing physical conditions, the character of the area involved, including the character of surrounding land uses, zoning classifications, the nature of the existing air quality, or receiving body of water, as the case may be, and the technical ...


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