APPEAL from the Circuit Court of Macon County; the Hon. DONALD
W. MORTHLAND, Judge, presiding.
MR. PRESIDING JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 11, 1979.
Defendant, the Illinois Pollution Control Board (PCB) appeals from a declaratory judgment entered by the circuit court of Macon County upon the complaint of plaintiffs, the Sanitary District of Decatur (District) and the City of Decatur (City), both municipal corporations. The judgment declared that by operation of section 38 of the Environmental Protection Act (Ill. Rev. Stat. 1977, ch. 111 1/2, par. 1038), City and District had a variance for one year from November 23, 1977, to perform certain construction in a manner they had requested in a petition for a variance previously filed with PCB.
Section 38 of the Act provides that if PCB fails to take "final action" upon a petition for variance within 90 days after the petition is filed, the petitioner may deem the variance granted for a period not to exceed one year.
Plaintiffs' complaint for declaratory judgment stated that: (1) a petition for a variance for construction of a project called the McKinley Avenue Diversion Control Facility modification had been filed with PCB on August 24, 1977; (2) on October 13, 1977, PCB set the petition for hearing on December 19, 1977; (3) on November 9, 1977, PCB dismissed the petition with leave to refile; (4) on November 20, 1977, the 90-day period expired; (5) PCB contends that the dismissal of the petition was final action; (6) District and City contend that the dismissal was not final action and that a variance was in effect; (7) an actual controversy existed; and (8) District and City would be subject to substantial monetary penalties by proceeding if a variance was not in effect, and large sums of money were involved in the project.
PCB filed a motion to dismiss the complaint asserting that the circuit court did not have jurisdiction because: (1) sovereign immunity barred entry of a declaratory judgment against a state agency; (2) "special jurisdictional restrictions" barred the granting of relief requested; (3) plaintiffs had failed to exhaust administrative remedies; and (4) declaratory relief was sought in a fashion not contemplated by legislation providing for declaratory judgments. The court denied the motion. The Board stood on its motion and declined to plead further. The complaint was then taken as confessed by default and the declaratory judgment was entered.
Similar contentions are made by PCB on appeal.
PCB stresses that (1) by virtue of section 41 of the Environmental Protection Act (Ill. Rev. Stat. 1977, ch. 111 1/2, par. 1041), appeals from its final orders lie directly to this court, and (2) before seeking other relief, a party to an administrative proceeding is required to exhaust its administrative remedies. (Illinois Bell Telephone Co. v. Allphin (1975), 60 Ill.2d 350, 326 N.E.2d 737.) PCB asserts that the filing of the complaint for declaratory judgment in the circuit court was (1) an attempt to appeal to that court although it had no jurisdiction of such an appeal, and (2) premature because plaintiffs had not exhausted their administrative remedies under PCB Procedural Rule 333. That rule provides that any party may, within 35 days after adoption of a final PCB order, move for rehearing, modification, or vacation of any final order, or for other relief.
The difficulty with PCB's theory that the complaint is an improper attempt to appeal is that plaintiffs were not attempting in the circuit court to reverse, overturn, or set aside the order of dismissal but to determine whether it prevented the creation of a variance which would otherwise have resulted from the failure of PCB to take "final action" on plaintiffs' petition for a variance within 90 days. Had plaintiffs prevailed on such an appeal, the ruling of the appellate tribunal would be to reinstate the petition rather than to declare the existence of a variance.
For the same reasons, administrative relief vacating or modifying the order of dismissal would not answer the question of whether plaintiffs had a variance. No authority is cited ruling that a declaration of rights or other order similar to a declaratory judgment is included in the "other relief" provided for by Procedural Rule 333.
Furthermore, plaintiffs' theory that they have a variance by operation of law is predicated upon their assertion that the order of dismissal was not final. To either appeal to this court or to seek relief under Procedural Rule 333, they would have to take the position that the order was final. A ruling by this court on a direct appeal or by PCB upon a request for Rule 333 relief that the dismissal order lacked the finality necessary to give the court or tribunal jurisdiction to proceed might indirectly also determine that the dismissal order was not "final action" within the meaning of section 38 of the Environmental Protection Act. However, parties are not required to seek a determination of their rights in such a devious manner.
Defendant PCB relies heavily on Bulk Terminals Co. v. Environmental Protection Agency (1976), 65 Ill.2d 31, 357 N.E.2d 430, where plaintiffs sought to enjoin, on double jeopardy grounds, separate administrative prosecutions brought against them before PCB arising out of the same emissions of stored chemicals. The supreme court ruled that the plaintiffs were required to exhaust their administrative remedies because (1) the issues raised in the chancery case could have been raised in the administrative proceeding, and (2) the detriment claimed by plaintiffs to arise from the administrative proceedings did not qualify as an exception to the exhaustion of administrative remedies doctrine. Here, no administrative procedure was shown to be available to afford plaintiffs the relief sought in their declaratory judgment complaint.
1 Plaintiffs' complaint for declaratory relief in the circuit court constitutes neither an attempt to appeal to that court nor a failure to exhaust administrative remedies.
2 In order for a complaint to set forth grounds for declaratory relief it must set forth the existence of an actual justiciable controversy. In Underground Contractors Association v. City of Chicago (1977), 66 Ill.2d 371, 375, ...