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Carlson v. Village of Worth

OPINION FILED SEPTEMBER 26, 1975.

HARRY A. CARLSON, APPELLEE,

v.

THE VILLAGE OF WORTH, APPELLANT.



Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County; the Hon. Edward J. Egan, Judge, presiding.

MR. JUSTICE SCHAEFER DELIVERED THE OPINION OF THE COURT:

This case concerns the authority of a non-home-rule municipality to superimpose the requirements of its own "environmental protection ordinance" upon the holder of a permit for the operation of a sanitary landfill issued by the State Environmental Protection Agency pursuant to the Environmental Protection Act. On June 9, 1971, the plaintiff, Harry A. Carlson, obtained a permit from the Illinois Environmental Protection Agency which authorized him to install and operate a sanitary landfill within the Village of Worth, a non-home-rule municipality. On June 22, 1971, the Village enacted its ordinance, which made it unlawful to operate a sanitary landfill within the Village without a permit from the Village. Issuance of such a permit was conditioned upon compliance with the requirements of the "Village of Worth Environmental Protection Ordinance," which included the requirement of compliance with the village zoning ordinance.

The circuit court of Cook County enjoined the enforcement of the ordinance, the Appellate Court, First District, affirmed (25 Ill. App.3d 315), and we allowed leave to appeal.

The appellate court found it unnecessary to consider what authority, if any, the municipality might have had to regulate a sanitary landfill prior to the enactment of the Environmental Protection Act in 1970, because it concluded that local regulation was preempted by that statute. We agree with that conclusion, which was based upon our opinion in O'Connor v. City of Rockford (1972), 52 Ill.2d 360. Although the plaintiff in that case was the City of Rockford, the decision is equally applicable to a private individual or a corporation. In that case the court held:

"In our opinion, to hold here that the city's use of the proposed site as a landfill may be permitted only upon issuance of a conditional use permit by Winnebago County, or that the county, by reason of its zoning ordinance may prohibit such use, contravenes the clearly expressed legislative intent that such operations be conducted only upon issuance of a permit from the Environmental Protection Agency. By the enactment of the Environmental Control Act, the General Assembly has expressly declared the need for `a unified state-wide program' and provided the means for issuance of appropriate permits under regulations promulgated after taking into account precisely the conflicting interests shown by this record." 52 Ill.2d 360, 367.

The O'Connor case would dispose of the contentions of the Village in the present case were it not for the following statement in City of Chicago v. Pollution Control Board (1975), 59 Ill.2d 484, 489: "We conclude therefore that a local governmental unit may legislate concurrently with the General Assembly on environmental control." The Village's case is based primarily upon that statement. The statement was dictum, for the issue in the City of Chicago case was whether or not a sanitary landfill and three incinerators, operated by the City itself, were subject to the provisions of the Environmental Protection Act. No issue relating to the power of a municipality to legislate concerning environmental control was before the court, and certainly it was not intended to overrule the decision of this court in the O'Connor case.

The opinion in the O'Connor case reviewed the history of legislative efforts to control refuse disposal sites, and that history need not be repeated here. Shortly stated, it indicated that local regulation had proved unsatisfactory. The difficulties encountered resulted in the passage of the Environmental Protection Act, which contains the following legislative finding: "(ii) that because environmental damage does not respect political boundaries, it is necessary to establish a unified state-wide program for environmental protection and to cooperate fully with other States and with the United States in protecting the environment; * * *." (Ill. Rev. Stat. 1973, ch. 111 1/2, par. 1002.) And the opinion of the appellate court in the present case pointed out that provisions which would have expressly reserved concurrent authority to local governmental units were deleted prior to passage of the Environmental Protection Act. 25 Ill. App.3d 315, 322.

Our subsequent opinion in American Smelting & Refining Co. v. County of Knox (1974), 60 Ill.2d 133, dealt with a similar problem. In that case, Knox County sought to apply its zoning ordinance to a surface-mining operation for which a permit had been issued by the Department of Mines and Minerals pursuant to the "Surface-Mined Land Conservation and Reclamation Act." The court compared that statute with the Environmental Protection Act and decided that the reasoning of the O'Connor case was applicable, saying:

"In O'Connor v. City of Rockford, 52 Ill.2d 360, an attempt was made to prohibit the creation of a sanitary landfill in an unincorporated county area by use of county zoning requirements. After review of various provisions of the Environmental Protection Act (Ill. Rev. Stat. 1971, ch. 111 1/2, par. 1001 et seq.) we held that the legislature had expressed an intent to resolve conflicting interests which could arise in such matters by authorizing a sanitary landfill when a permit was issued by the Environmental Protection Agency. Thus operation of a sanitary landfill was not dependent upon the issuance of a conditional use permit by the county, nor could the county zoning power be used to prohibit the operation if a State permit authorized said use." 60 Ill.2d 133, 139.

As a subsidiary proposition, the Village contends that its local ordinance was given vitality by the following language contained in the permit issued by the State agency: "This authority * * * does not release the permittee from compliance * * * with applicable local laws, regulations or zoning ordinances." This identical contention, too, was raised and rejected in the O'Connor case. The State permit granted by the Environmental Protection Agency authorized the operation of a sanitary waste disposal site upon the property legally described in the application for the permit. As the appellate court pointed out in this case, the Environmental Protection Agency has not been authorized to delegate the responsibility placed upon it by the General Assembly to decide whether or not a sanitary landfill should be permitted to operate at a specified location.

The judgment of the appellate court is affirmed.

Judgment affirmed.

MR. JUSTICE RYAN, dissenting:

I cannot concur in the majority opinion which overrules a substantial part of the very recent opinion of this court in City of Chicago v. Pollution Control Board, 59 Ill.2d 484, and which not only prohibits non-home-rule units of local government from legislating on environmental matters but also casts serious doubt upon the authority of home-rule units to do so. If, as the majority holds, the legislature prior to the 1970 Constitution has by the enactment of the Environmental Protection Act declared environmental matters to be so exclusively of statewide concern as to deprive any local unit authority to act in the field, how can it later be contended under the new constitution that the same matters pertain to the government and affairs of local governmental home-rule units? See Const. 1970, art. VII, sec. 6(a).

Following a rather detailed analysis of the environmental provisions of the 1970 Constitution and after also considering the Environmental Protection Act, we concluded in City of Chicago that local governmental units may legislate concurrently with the General Assembly on environmental control. The majority in this case passes off this holding as "dictum." In that case there were several interrelated issues. The City of Chicago had enacted an environmental ordinance and permits had been issued by the City's Department of Environmental Control for the operation of the disposal facilities by the city. The State had argued that the city had no authority to legislate in this field contending that the authority to do so was vested exclusively in the State. We held that it was not. I am not so concerned with whether this holding is dictum as I am with the correctness of the conclusion.

I also do not find that it is impossible to reconcile "the dictum" of City of Chicago with the holding in O'Connor v. City of Rockford, 52 Ill.2d 360, a case which I fear has been too broadly read. Both the majority opinion and the appellate court opinion in this case rely on O'Connor. However, that case involved only a conflict between a permit issued by the State agency involved and a local zoning ordinance. It was not the import of that case that a unit of local government could not legislate in the field of environmental control. O'Connor held only that the county, by reason of its zoning ordinance, could not prohibit the use of the land for a landfill operation which had been authorized by a permit issued by the State agency. We noted in that case that the Pollution Control Board under section 27 of the Act (Ill. Rev. Stat. 1973, ch. 111 1/2, par. 1027) in promulgating regulations pursuant to which the permit is to be issued is required to take into account the existing physical conditions, the character of the area involved, including the character of surrounding land uses and the zoning classification. Thus the very conflict that was in issue in O'Connor was required to be considered by the State agency issuing the permit before the permit was issued.

In the case before us we are not dealing with a zoning ordinance. Involved in this case, as in City of Chicago, is a comprehensive local ordinance 23 pages in length. It covers in detail the use and operation of solid waste disposal sites and sanitary landfills and only incidentally mentions zoning requirements in two brief sentences. The trial court decided this case on a motion for summary judgment. The pleadings, the order of the court, the statements of counsel in the trial court and the comments of the trial judge all indicate that the zoning ordinance of the village is not involved in this case. Thus, we are not concerned with the narrow holding of O'Connor. We are concerned with the broader question of whether local governmental units can legislate in the field of environmental protection.

The appellate court and the majority opinion conclude that the General Assembly by the enactment of the Environmental Protection Act has preempted local regulation. It must be remembered that the Environmental Protection Act was enacted in 1970 prior to the effective date of our Constitution. In City of Chicago, we found that it was the intent of the constitutional convention as reflected in the committee reports that if the State legislates in the environmental field, but does not express exclusivity, local governmental units retain the power to act concurrently. If we accept the majority's view that the Environmental Protection Act prohibits local governmental units from legislating in this field then the act is "contrary to, or inconsistent with" the intended import of the environmental provision in the Constitution and contrary to the intent expressed in the convention. Thus under section 9 of the transition schedule of the Constitution, any preemption that may have been implied in the Environmental Protection Act in 1970 did not survive after the effective date of our new Constitution on July 1, 1971.

As observed in City of Chicago, section 2(a)(iv) of the Environmental Protection Act (Ill. Rev. Stat. 1973, ch. 111 1/2, par. 1002(a)(iv)) states that the General Assembly finds that it is the obligation of the State government "to encourage and assist local governments to adopt and implement environmental-protection programs consistent with this Act." It is true that this is not a specific grant of authority to a city to legislate in this field but it does express an intent that the State is not to be the sole occupant of the field. The authority of a non-home-rule unit to legislate in this field is found in its police powers. This court stated in Montgomery v. City of Galva, 41 Ill.2d 562, at 564: "The right of a municipality under its police power to regulate the collection and disposition of garbage and refuse for the promotion of public health has been recognized in the case law. [Citations.]"

Thus in this case the defendant had the authority to enact the ordinance regardless of the absence of a specific grant in the Environmental Protection Act. This authority is subject to constitutional limitations as expressed in the constitutional proceedings that local regulation must conform to the minimum standards established by the State. (See City of Chicago v. Pollution Control Board, 59 Ill.2d 484, at 488-489.) The ordinance in this case complies with this requirement by specifically providing that where the provisions of the ordinance are either more restrictive or less restrictive than comparable conditions imposed by other provisions of any applicable law, rule or regulation, the more restrictive provisions (those which impose higher standards or requirements) shall govern.

Summarizing, O'Connor involved only a conflict between a local zoning ordinance and a permit issued by a State agency and is not relevant to the issues in this case. We are here concerned with a local ordinance regulating the use and operation of solid waste disposal sites. The authority to enact such an ordinance stems from the village's police power exercised for the promotion and protection of public health. The ordinance does not attempt to exclusively occupy the field but provides that its requirements shall conform to the minimum standards established by law or regulation. The intent of the framers of the Constitution was that the State and local ...


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