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Carlson v. Briceland

OPINION FILED JUNE 7, 1978.

HARRY CARLSON ET AL., PLAINTIFFS-APPELLEES,

v.

DR. RICHARD H. BRICELAND ET AL., DEFENDANTS. — (THE COUNTY OF COOK, INTERVENOR DEFENDANT-APPELLANT.)



APPEAL from the Circuit Court of Cook County; the Hon. RAYMOND K. BERG, Judge, presiding.

MR. JUSTICE SIMON DELIVERED THE OPINION OF THE COURT:

At issue here is whether the trial court erred in denying the petition of Cook County, the intervenor-defendant, for an injunction restraining the plaintiffs from conducting a garbage disposal operation on a tract of land in Cook County, without first being granted a special use permit by the county board of commissioners, as required by the county's zoning ordinance.

The plaintiffs, whose business is operating sanitary landfill operations, in which garbage is put into holes which later are covered with dirt, sought a declaratory judgment and temporary and permanent injunctions against the State Environmental Protection Agency (EPA) and its director, the defendants, seeking to invalidate conditions in a permit the EPA had issued the plaintiffs. This permit allowed the plaintiffs, subject to those conditions, to dig holes and bury garbage in them on a 40-acre, unimproved tract of land in an unincorporated area in the southwest part of Cook County. The disputed conditions the EPA placed on the permit prohibited the plaintiffs from doing anything to the land unless they first had complied with all applicable State statutes and local laws, regulations and zoning ordinances, including those requiring special use permits. The plaintiffs, however, claimed that the Environmental Protection Act (the Act) (Ill. Rev. Stat. 1975, ch. 111 1/2, par. 1001 et seq.), did not authorize the EPA to set such conditions on permits it issued. Contending that the State possessed exclusive authority to issue such regulations, they further argued that State law prevented the EPA from establishing conditions delegating the authority to regulate garbage disposal operations to local governmental units.

At this point, Cook County (the County), a home-rule unit, promptly intervened as a defendant and counterclaimed, alleging that the garbage disposal site was subject to the county zoning ordinance because it was within an unincorporated area of Cook County. The County also contended that the plaintiffs should have been enjoined from creating their proposed garbage operation until the county board granted them a special use permit required by the county zoning ordinance.

The circuit court dismissed the County's counterclaim and granted the plaintiffs a summary judgment invalidating the contested conditions in the permit, while upholding the permit's validity. Subsequently, on the County's motion the trial court remanded the case to the EPA. After the EPA reviewed the site's suitability for garbage disposal purposes, it issued a supplemental permit authorizing the plaintiffs to develop the proposed use. When both the EPA and the plaintiffs then stipulated that their controversy had been rendered moot because the conditions contested by the plaintiffs had been eliminated from the permit, the trial court dismissed the case between these two parties. The court also entered judgment for the plaintiffs against the County, and the County has appealed that order, which denied the County an injunction halting the development and operation of the refuse disposal operations.

On appeal, the County contends that its zoning restrictions should have been considered by the EPA before the refuse disposal operation, which is referred to in the Cook County Zoning Ordinance as a sanitary landfill, was approved. Specifically, the County argues: (1) its zoning restrictions are authorized by the home rule power granted in article VII, section 6(a) of the 1970 Illinois Constitution (Ill. Const. 1970, art. VII, § 6(a)) because they involve the local governmental affairs of Cook County; (2) even if its restrictions conflict with the Act, those restrictions take precedence over the pre-home-rule act, pursuant to section 9 of the constitution's transition schedule (Ill. Const. 1970, art. XIV, § 9); (3) its zoning restrictions have not been preempted by the Act; and (4) even if the zoning restrictions do conflict with the Act, they should not be construed as legitimate, concurrent regulations.

In reply, the plaintiffs argue that it is the court's responsibility to interpret when a home rule unit may exercise its power under the constitution. They contend that our supreme court has ruled that where the regulation of a solid waste disposal site, or sanitary landfill, is, as here, a regional or statewide concern delegated to the EPA by the Act, that regulation is the sole province of the State and should not be interfered with by a home rule unit of local government, such as the County. The plaintiffs concede, however, that if the location and control of refuse disposal sites by home rule units is authorized by the constitution, then the County's other arguments are correct and the County is entitled to judgment.

The 1970 Constitution, as a response to some of the pressing local problems faced by this State, adopted the concept of "home rule." Article VII, section 6, the heart of the local government provision, provides:

"Except as limited by this Section, a home rule unit may exercise any power and perform any function pertaining to its government and affairs including, but not limited to, the power to regulate for the protection of the public health, safety, morals and welfare; to license; to tax; and to incur debt."

The purpose of home rule was to expand the previously narrow scope of authority of home rule units such as Cook County. (Minetz, Recent Illinois Supreme Court Decisions Concerning the Authority of Home Rule Units to Control Local Environmental Problems, 26 De Paul L. Rev. 306, 307 (1977).) And the convention evinced its intent that the idea of home rule be a key weapon in the battle against pollution, noise, inadequate garbage disposal, inefficient planning and zoning, and the myriad other problems confronting citizens and government officials by conferring upon home rule units a grant of authority which probably was the broadest in the nation. (See Parkhurst, Article VII — Local Government, 52 Chi. B. Rec. 94, 99 (1970).) Clearly, in adopting home rule, the framers of the new constitution intended to reverse the presumption against local authority, and establish a new presumption in favor of municipal and county rule. 26 De Paul L. Rev. 306, 308.

In the years since the home rule provisions were adopted, however, controversy about the proper relationship between the State government and a home rule unit, and the State and its agencies, has arisen. Specifically, in the environmental setting, the questions have been whether the Act has preempted the rights of home rule units to legislate on issues with environmental impact, and whether the broad grant of power given the home rule units includes the power to legislate on environmental problems. 26 De Paul L. Rev. 306, 309.

Although in City of Chicago v. Pollution Control Board (1974), 59 Ill.2d 484, 322 N.E.2d 11, the supreme court held that the City of Chicago was obligated to comply with the Act, the court at the same time noted:

"[I]t was not the intention of the [constitutional convention] committee that the local government units be prohibited from acting in this field. It was instead the intention of the committee that under the leadership of the General Assembly the intergovernmental efforts complement one another.

[A] local governmental unit may legislate concurrently with the General Assembly on environmental control." (City of Chicago, at 488-89.)

The supreme court reaffirmed its position that the State and home rule units could legislate concurrently on environmental problems twice in the following year in Mulligan v. Dunne (1975), 61 Ill.2d 544, 338 N.E.2d 6, and Ampersand, Inc. v. Finley (1975), 61 Ill.2d 537, 338 N.E.2d 15.

The same year, though in Carlson v. Village of Worth (1975), 62 Ill.2d 406, 409, 343 N.E.2d 493, a case involving a village which was not a home rule entity, the majority opinion stated that the court's statement quoted above in City of Chicago was dictum. The court in Carlson strongly relied on its previous decision in O'Connor v. City of Rockford (1972), 52 Ill.2d 360, 288 N.E.2d 432 to reach this conclusion, and it rejected concurrent jurisdiction between a non-home-rule village, the Village of Worth, and the State; yet, ...


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