Appeal from the Circuit Court of Cook County, the Hon. Raymond
K. Berg, Judge, presiding.
MR. JUSTICE MORAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied May 30, 1979.
This litigation arose out of the efforts of John Sexton Contractors Company (Sexton) to locate and operate a sanitary landfill on an 85-acre tract of land in an unincorporated portion of Cook County (County). On January 19, 1976, the County comprehensively amended its zoning ordinance pursuant to its home rule power under the 1970 Illinois Constitution (Ill. Const. 1970, art. VII, sec. 6). Prior to the amendment, the subject property had been zoned R-3, single-family district. Under the amendment, the subject property was zoned R-4, single-family district. The present ordinance allows sanitary landfill sites as a special use in four districts zoned for industry and in two districts zoned for open land.
The Environmental Protection Agency (Agency) issued a final developmental permit to Sexton on September 13, 1976. (The Agency previously had issued a permit, but then requested additional information from Sexton.) The County subsequently brought an action in the circuit court against Sexton and the Agency, seeking to enjoin further development and operation of the landfill until Sexton complied with the County's zoning laws. Sexton counterclaimed to stop the County's attempt to subject the landfill to county zoning laws, alleging that the Environmental Protection Act (Act) (Ill. Rev. Stat. 1977, ch. 111 1/2, par. 1001 et seq.) applied to the exclusion of the County's zoning laws.
Property used for residential purposes is located close to the subject landfill site and within the corporate limits of the village of Richton Park (Village). The Village filed a complaint with the Pollution Control Board (Board) pursuant to Rule 503(a) of the Board's Procedural Rules and Rule 205(j) of the Board's Solid Waste Rules and Regulations, which ostensibly empower the Board to review the actions of the Agency in the granting of permits. Sexton moved to dismiss the Village's complaint on the ground that the Board was without authority to review the Agency's decision in the granting of permits. The Board denied Sexton's motion.
Following this denial, Sexton amended its counterclaim to add the Board and the Village as counter-defendants and to enjoin the Board proceedings. Although the record is not clear, it seems Sexton further amended its counterclaim to add the village of Matteson and Cook County School districts 159 and 227 as additional counter-defendants. The Board moved to dismiss Sexton's amendments on the ground that the circuit court lacked jurisdiction to rule on the propriety of the proceedings before the Board. Meanwhile, Sexton had developed the landfill site, the Agency issued Sexton a permit to operate the landfill, and Sexton began operations. The court, after determining it had jurisdiction over the matter, denied the Board's motion to dismiss.
After deciding it had jurisdiction, the circuit court held Board Rules 503(a) and 205(j) invalid, on the ground that the Board was not delegated the authority to review the Agency's decision in the granting of permits. Consequently, the court enjoined further Board proceedings in the matter. The court further ruled that the Act preempted any regulatory authority by home rule units over the location of sanitary landfills and enjoined the County from interfering with Sexton's sanitary landfill operation. The County, the Board, and the Village separately appealed from the trial court's judgments. The case was transferred to this court pursuant to Supreme Court Rule 302(b) (58 Ill.2d R. 302(b)).
The appeals taken by the Board and the Village both present the following questions: (1) Did the circuit court have jurisdiction to determine the validity of the Board rules? and (2) Are Board Rules 503(a) and 205(j) valid? Both of these questions have been decided adversely to the Board and the Village by this court's recent decision in Landfill, Inc. v. Pollution Control Board (1978), 74 Ill.2d 541. Accordingly, we hold that the circuit court had jurisdiction to, and correctly did, decide that Board Rules 503(a) and 205(j) are invalid. Proceedings before the Board therefore were properly enjoined.
The appeal of the County presents the remaining precise question: Where the Agency has issued a permit for the operation of a privately owned sanitary landfill, may the County, a home rule unit, require the landfill owner's conformance to the County's zoning ordinance?
Prior to July 1, 1970, anyone desirous of operating a sanitary landfill within the unincorporated area of a county was required to locate it upon land zoned for such purposes (Ill. Rev. Stat. 1969, ch. 34, pars. 3151 to 3162), and also to register the site with the Illinois Department of Public Health (Ill. Rev. Stat. 1969, ch. 111 1/2, pars. 471 to 476), whose duties included the formulation of minimum standards for the operation of such facility.
On July 1, 1970, the act here involved became effective and repealed the statute requiring registration of sanitary landfills with the Illinois Department of Public Health (Ill. Rev. Stat. 1971, ch. 111 1/2, par. 1050). In the Act, the General Assembly expressed its concern over environmental damage by declaring the need for a statewide program to cope with environmental problems, including the disposal of solid waste. (Ill. Rev. Stat. 1977, ch. 111 1/2, pars. 1002(a)(ii), 1002(a)(iii).) The Act thus represents a unified program of environmental regulation. Sections 20 to 22 (Ill. Rev. Stat. 1977, ch. 111 1/2, pars. 1020 to 1022) specifically address solid waste disposal, and include the proscription against refuse-disposal operations without an Agency permit (Ill. Rev. Stat. 1977, ch. 111 1/2, par. 1021(e)). Following adoption of the Act, the question of the power of a local governmental unit to subject a sanitary landfill to local zoning ordinances was first addressed by this court in O'Connor v. City of Rockford (1972), 52 Ill.2d 360. That action arose when the city of Rockford, after registering with the Illinois Department of Public Health, proposed to maintain and operate a sanitary landfill in an unincorporated area of Winnebago County. The county sought to require the city's compliance with the county zoning laws. After discussing various provisions of the Act, this court held that the city need only obtain an Agency permit. The court felt that to condition the city's use of the proposed site as a sanitary landfill on its compliance with county zoning laws would contravene the "clearly expressed legislative intent that such operations be conducted only upon issuance of a permit from the Environmental Protection Agency." (52 Ill.2d 360, 367.) On its face, O'Connor thus stands for the proposition that the Act operates to the exclusion of regulation by local governmental bodies. It must be noted, however, that the local governmental body (Winnebago County) involved in O'Connor was a non-home-rule unit.
The next confrontation between the Act and a local unit of government involved a home rule unit, the city of Chicago. In City of Chicago v. Pollution Control Board (1974), 59 Ill.2d 484, the Agency sought to subject the city to the provisions of the Act in the city's operation of a municipal sanitary landfill and three refuse incinerators, after the city had been granted permits by the Chicago Department of Environmental Control. There, the court concluded that a local governmental unit may legislate concurrently with the State on environmental control. Although the local unit of government was a home rule unit, the court did not expressly confine its holding to home rule units, just as the O'Connor court did not confine its holding to non-home-rule units.
Following City of Chicago, another case arose which involved the authority of a local governmental unit over sanitary landfills. In Carlson v. Village of Worth (1975), 62 Ill.2d 406, plaintiff had obtained an Agency permit to install and operate a sanitary landfill within the village of Worth, a non-home-rule unit. The village promptly enacted an ordinance making it unlawful to operate the landfill without a permit from the village. The village permit, in turn, required compliance with the village zoning ordinance. This court held that the Act preempted local regulation, reiterating the policies of the Act as expressed by the legislature and set forth by O'Connor (62 Ill.2d 406, 408-09). As in O'Connor, the court did not confine its holding to non-home-rule units. Consequently, rather than merely limiting City of Chicago to home rule units, the Carlson court, viewing City of Chicago as inconsistent with O'Connor, purported to reduce the City of Chicago decision to dictum. (62 Ill.2d 406, 409.) The decision in Carlson, therefore, although concerned with non-home-rule units only, was viewed as casting doubt on the continued vitality of City of Chicago even as to home rule units. See Carlson v. Village of Worth (1976), 62 Ill.2d 406, 411, 424-26 (Ryan, J., dissenting; Underwood, J., and Ward, C.J., dissenting from supplemental opinion on denial of rehearing); Metropolitan Sanitary District v. City of Des Plaines (1976), 63 Ill.2d 256, 260 (stating that Carlson precludes reliance on City of Chicago as precedent).
After O'Connor and Carlson, it is clear that the Act operates to exclude non-home-rule units from the regulation of sanitary landfills. This conclusion, however, is not incompatible with the result reached in City of Chicago, which applied to home rule units. An assessment of the relationship between State legislation and regulations enacted by a local governmental unit requires a different approach when the local unit is a home rule unit. Under the 1970 Illinois Constitution (Ill. Const. 1970, art. VII, sec. 6), effective July 1, 1971, many local units of government became, or were given the power to become, home rule units, which were granted the following power:
"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." (Ill. Const. 1970, art. VII, sec. 6(a).)
The Constitution also provides that "[p]owers and functions of home rule units shall be construed liberally." (Ill. Const. 1970, art. VII, sec. 6(m).) As to the State's relationship with home rule units, the State may exercise exclusively any power or function of a home rule unit except for taxing or certain taxing-type powers. (Ill. Const. 1970, art. VII, sec. 6(h).) However, section 6(i) of article VII provides:
"Home rule units may exercise and perform concurrently with the State any power or function of a home rule unit to the extent that the General Assembly by law does not specifically limit the concurrent exercise or specifically declare the State's exercise to be exclusive." Ill. Const. 1970, art. VII, sec. 6(i).
In deciding whether a home rule unit's zoning restrictions are applicable to sanitary landfills, we must first determine if, under the 1970 Constitution, zoning for sanitary landfills is a home rule power and a function "pertaining to its government and affairs." If so, we must decide whether the legislature, through enactment of the Act, has (1) "specifically" limited local exercise, or (2) "specifically" declared the State's exercise to be exclusive, thereby totally preempting a home rule unit's exercise of its constitutional power. If the legislature has not taken such "specific" action, we then must determine the proper relationship between the local zoning ordinance and the provisions of the Act.
The terms of the grant of home rule power are broad and imprecise, leaving to this court the duty to interpret whether any power exercised by a home rule unit is within the grant of section 6(a). (Ampersand, Inc. v. Finley (1975), 61 Ill.2d 537, 539-40.) The difficulty in determining the extent of home rule power arises because many matters are of both local and regional or statewide concern. A prime example is environmental regulation. Few matters would seem to be of more local concern than controlling local sources of pollution. Yet, many areas of environmental regulation are also of regional or statewide concern, as many types of pollution and pollution-related matters transcend local boundaries. The problem is to decide which environmental matters are sufficiently local in character so as to be subject to the home rule power. It must be remembered that finding a matter to be within the home rule power does not preclude regulation or control by the State. The General Assembly may remove or limit most home rule powers by a three-fifths majority vote (Ill. Const. 1970, art. VII, sec. 6(g)), or may specifically supercede, either in part or in total, most home rule powers through its own legislation covering the particular matter (Ill. Const. 1970, art. VII, secs. 6(h), 6(i)). Absent such action by the General Assembly, home rule units may, concurrently with the State, exercise and perform any home rule powers. Ill. Const. 1970, art. VII, sec. 6(i).
Activities and matters that are potential sources of pollution, properly subject to environmental regulation, include the treatment and disposal of sewage and solid waste. In Metropolitan Sanitary District v. City of Des Plaines (1976), 63 Ill.2d 256, this court considered whether a municipality's home rule power extends to regulation, in the form of a permit requirement, of a regional sewage-treatment plant. After the sanitary district obtained a permit from the Agency to construct a sewage-treatment plant within the city of Des Plaines, the city, a home rule unit, sought to force compliance with its own permit requirements. This court held that application of the city's ordinance to the plant does not pertain to its government and affairs. In so ruling, the court emphasized that the regional plant was designed to serve several home rule municipalities. "Our fundamental difficulty is that to permit a regional district to be regulated by a part of that region is incompatible with the purpose for which it was created." (63 Ill.2d 256, 261.) Thus, although the plant, a potential source of pollution, was to be located entirely within the city of Des Plaines, and any environmental problems would have their greatest impact at the source, the court felt that local regulation would interfere unduly with the greater interest of the regional district.
In our opinion, the holding in Metropolitan Sanitary District should not be extended to the instant set of facts. The court there did not invalidate the local ordinance; it merely prohibited its application to the sanitary district's regional plant. (63 Ill.2d 256, 260.) The situation here is distinguishable. While Sexton admittedly contemplates use of the landfill by surrounding communities, this is not the case of a regional governmental district seeking to create a facility to serve a specific region, with a part of that region attempting to regulate the facility. Thus, the `fundamental difficulty" that this court perceived in Metropolitan Sanitary District does not exist here.
Sexton emphasizes that the Act established a statewide program of environmental regulation. The existence of the Act, however, is not determinative of whether regulation of sanitary landfills is within the home rule power. As stated, the Constitution specifically provides the legislature with the ability to deny, limit, or exclude home rule units from exercising most home rule powers. (Ill. Const. 1970, art. VII, secs. 6(g) to 6(i).) The late Professor David C. Baum, counsel to the Committee on Local Government, asserted that, unless the legislature undertakes its supervision powers according to the constitutionally prescribed methods, "home rule units are supposed to be free to carry on activities that relate to their ...