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V. of Hillside v. Sexton Sand & Grav. Corp.





Appeal from the Circuit Court of Cook County; the Hon. James C. Murray, Judge, presiding.


This appeal is from the trial court's order entered nunc pro tunc affirming the decision of the Illinois Environmental Protection Agency (Agency) to approve the issuance of certain permits to John Sexton Sand & Gravel Corporation (Sexton) and Browning-Ferris Industries, Inc. (Browning-Ferris), to operate a sanitary landfill at the Hillside Stone Quarry (Quarry), and denying declaratory, injunctive and mandamus relief sought generally in counts III, V and IX of plaintiff's fourth amended complaint. Plaintiff, village of Hillside (Village), a non-home-rule municipality, *fn1 here contends that: (1) the trial court erred in according the Agency's decision a presumption of validity; (2) the trial court's ruling on the land use and suitability of the Quarry as a sanitary landfill is against the manifest weight of the evidence; (3) the trial court's findings that Sexton had the requisite legal interest to obtain solid waste permits and site approval from the Agency, and that the Agency had authority to approve site location before Sexton obtained ownership of the Quarry, are against the manifest weight of the evidence; (4) the trial court's affirmance on certiorari of the Agency decision to issue sanitary landfill permits for the Quarry is against the manifest weight of the evidence; and (5) the trial court's denial of plaintiff's motion for preliminary and permanent injunctive relief is against the manifest weight of the evidence.

The Quarry which is the subject of these proceedings occupies approximately 75 acres within the corporate limits of the Village and was formerly used to quarry limestone. It is located adjacent to the Mannheim Road-Eisenhower Expressway interchange and lies almost 10 miles west of downtown Chicago. The site contains an excavation covering about 62 acres to a depth of 300 to 350 feet, having a capacity of approximately 16 million cubic yards. About 14 acres of the property, located along Mannheim Road and Harrison Street, are at grade level. The site adjoins the Spector Freight Motor terminal to the north, Mannheim Road and commercial uses located in the village of Bellwood on the east, the Eisenhower Expressway on the south, and the Holiday Inn and Hillside Squares Theatre on the west. It has point-to-point contiguity with a single-family residential use on the northwest, less than 100 feet from the property line of the site. Beyond the Eisenhower Expressway to the south are located several industrial uses including the Allied Asphalt Plant, Seneca Oil, Chippewa Paper, the Illinois Department of Transportation maintenance yard and Hillside disposal. To the west of these uses is located a single-family subdivision in the village of Hillside and some commercial uses including a movie theatre.

Within a one-mile radius of the site, 49% of the land is put to residential use. The commercial and industrial uses comprise 11% and 14%, respectively, and public and semi-public land use comprise 18%. Two percent of the land is used for parks and 3% is vacant. The subject property accounts for 4% of the total land uses within this radius.

The population density in the immediate area is approximately 5,400 persons per square mile. The population living within approximately one mile of the property is in the range of 26,204 to 33,981 people. The population living within one ring of quarter sections adjacent to the quarter section where the property is located is 13,812 persons. That area includes persons living adjacent to the Quarry and a little beyond one-half mile from the property.

On May 7, 1979, Sexton and Browning-Ferris (hereinafter referred to as "private defendants"), doing business as Congress Development Company, a partnership engaged in the development and operation of sanitary landfills, signed a sales agreement with Commonwealth Edison Company (Edison) to purchase the Quarry. On May 23, 1979, Edison petitioned the Illinois Commerce Commission for approval of the sale. Approval was granted on July 16, 1980, and Edison conveyed title in fee simple to private defendants on July 24, 1980. *fn2 Earlier, on August 14, 1979, the Agency granted Sexton's permit application requesting that the Agency transfer to Sexton certain permits previously held by Edison permitting it to develop the Quarry as a clean landfill; i.e., a dumping site for only inorganic matter. *fn3 Then, on August 15, 1979, the Agency issued to Sexton a supplemental permit allowing Sexton, subject to certain conditions, to modify the development of the site in accordance with the plans of its engineering firm. Finally, on July 18, 1979, Sexton requested an operating permit from the Agency, which was granted to private defendants on August 28, 1980 (No. 1975-57-OP) and which restricted operations of the site to the disposal of general municipal solid waste — excluding liquid, special and hazardous waste. Private defendants commenced a sanitary landfill operation at the Quarry under this permit on September 15, 1980.

Relevant to our consideration are counts III, V and IX of plaintiff's fourth amended complaint which generally seek declaratory, injunctive and mandamus relief. Count V seeks preliminary and permanent injunctive relief against Sexton and the Agency to prevent the continued operation of the sanitary landfill based on traditional principles applicable to land use and zoning decisions. It alleges that the sanitary landfill as proposed here is arbitrary, capricious and an abuse of discretion since it is not in conformity with the surrounding land uses, the trend of development and is contrary to the Village's comprehensive plan and its zoning ordinances. It further alleges that such a use will substantially depreciate the property values, and that the Agency's decision bears no relationship to the public health, safety and welfare of the Village. Counts III and IX seek injunctive or, in the alternative, mandamus relief alleging that the site location approval and transfer of permits by the Agency violated the rules of the Illinois Pollution Control Board (Board).

On November 12, 1980, following a hearing on plaintiff's motions for declaratory judgment, temporary restraining order and injunction based on various counts of its fourth amended complaint, the trial court found, inter alia, that all defendants were entitled to judgment on the issue of the Agency's procedure in permit decisions and the permit transfers; that the Village, as a non-home-rule municipality, was preempted from applying its zoning ordinance to the site; and that the Agency's decisions to transfer and issue permits were entitled to a presumption of validity. The trial court accordingly dismissed with prejudice the counts in question, including counts III and IX, and denied the motion for a temporary restraining order. On January 9, 1981, the trial court entered an order — subsequently modified nunc pro tunc finding, inter alia, that its order of November 12, 1980, was correct.

A final judgment order entered October 2, 1981, later modified nunc pro tunc, addressed count V and other remaining counts, and also reconsidered the November 12, 1980, dismissal of counts III and IX. The trial court therein entered judgment in favor of all defendants on counts III, V (as amended), and IX, holding, inter alia, that the Agency's decision on site approval was entitled to a presumption of validity; that the Village had failed to establish that the Agency's decision bears no relationship to the public health, safety and welfare; that the evidence presented established the contrary; and that its prior dismissal of counts III and IX was correct. Accordingly, the trial court denied the Village's motion for reconsideration, its motions for preliminary and permanent injunction, and its petition for writ of certiorari based on the remaining counts of its complaint. Finally, an order nunc pro tunc modifying the October 2, 1981, final judgment order was entered on October 27, 1981. This order brought to the court's attention the existence of two additional sequential operating permits issued by the Agency to Sexton since the close of the proofs in the case. The trial court ruled in favor of all defendants on the Village's challenges to the issuance of those permits and any further operating permits issued by the Agency for the site.

The Agency Hearings

The Agency hearings at issue commenced on June 12, 1979, and were concluded on July 10, 1979. Prior to these hearings, the hearing officer distributed to the parties a compilation of "Nine Issues" to be considered with respect to the 1979 Sexton supplemental permit application and permit transfer request. These issues address the following matters:

1. Adequacy of the engineering plan to protect environment;

2. Problems of scenic blight, damage to archaeological and historic sites or ...

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