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Concerned Boone Citizens v. M.i.g. Invest.

OPINION FILED JUNE 4, 1986.

CONCERNED BOONE CITIZENS, INC., ET AL., PLAINTIFFS-APPELLEES,

v.

M.I.G. INVESTMENTS, INC., DEFENDANT-APPELLANT (THE COUNTY OF BOONE, DEFENDANT-APPELLEE). — THE COUNTY OF BOONE, THIRD-PARTY PLAINTIFF-APPELLEE,

v.

M.I.G. INVESTMENTS, INC., THIRD-PARTY DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Boone County; the Hon. Robert J. French, Judge, presiding.

JUSTICE SCHNAKE DELIVERED THE OPINION OF THE COURT:

This appeal presents the question of whether the County of Boone may assess a filing fee to cover its costs of holding a hearing to determine site location suitability of a new regional pollution control facility. For the reasons set forth herein, we find Boone County's filing fee ordinance invalid.

At 1:40 p.m. on February 6, 1985, Attorney Thomas Immel presented to the Boone County clerk's office an application for approval of a regional pollution control facility. An employee of that office, Pamela McCullough, informed Immel that the application could not be filed without a $10,000 filing fee. When Immel became insistent, it was agreed that the clerk's office would take physical possession of the application and mark it "received 2-6-85, 1:40 P.M." Immel later received a letter from Dolores Weitemeyer, Boone County clerk, dated February 6, 1985, which stated that the application would not be considered to be filed until the $10,000 filing fee was received.

That filing fee was required under an ordinance of Boone County which assessed a fee at the rate of one cent per gallon of liquid waste and one cent per pound of solid waste proposed to be delivered to the site during the first five years of its operation. The minimum fee set by the ordinance was $10,000 and the maximum fee was $100,000. The fee was to be used solely to defray the costs incurred in reviewing the application, employing experts to evaluate the application, and holding a hearing on the application. Also, under the ordinance, any unused portion of the filing fee would be refunded to the applicant after the hearing and any appeal had been completed.

On March 12, 1985, two individuals, Robert Mickey and Joseph C. Poulter, along with the Concerned Boone Citizens, Inc., an Illinois not-for-profit corporation, (hereinafter collectively referred to as CBC) filed a complaint for declaratory judgment against M.I.G. Investments, Inc., an Illinois corporation (MIG) and the County of Boone (county), seeking a judicial determination that the Boone County filing fee ordinance was valid and that MIG's application had not been properly filed on February 6, 1985. CBC also filed a petition for preliminary injunction against the county to enjoin it from holding a hearing on MIG's application until the filing fee was received. On March 14, 1985, the county filed a third-party declaratory judgment action against MIG also seeking a judicial determination that its filing fee ordinance was valid. MIG thereafter filed a motion to dismiss CBC's complaint for declaratory relief, CBC's motion for preliminary injunction, and the county's third-party complaint for declaratory relief.

A hearing on CBC's petition for a preliminary injunction was held on March 25 and 26, 1985. On Friday, March 29, 1985, the trial court entered a temporary restraining order prohibiting the county from taking any action on MIG's application and tolling any statutory time period for the holding of a hearing on the application. The court's TRO also stated in part:

"3. That this Court has not had sufficient time to render its decision but because of certain time constraints on the part of the siting statute feels it is just and reasonable to enter this Order.

4. That the entry of this order is for the sole purpose of allowing the Court to render a fair and equitable decision on the Motion for Preliminary Injunction; that the entry of this Order is not a decision on the merits of the Motion for Preliminary Injunction in any manner."

The following Monday, April 1, 1985, MIG filed a petition to dissolve the TRO. On April 4, 1985, at the hearing on MIG's petition to dissolve, the trial court declined to rule on the petition and ruled instead on the merits of the case. The court denied CBC's petition for preliminary injunction and dismissed its complaint for lack of standing. The court then ruled in the county's favor on its third-party complaint, finding that the filing fee ordinance was valid and that MIG's application had not been properly filed on February 6, 1985. The court also specifically stated in response to questions by counsel that the TRO was not dissolved at that time, but would be dissolved only when the final judgment was signed because at that point the TRO would no longer be needed. The court's judgment was entered on April 15, 1985, and this appeal followed.

I

The first issue raised is whether a justiciable controversy exists between the county and MIG. On March 26, 1986, CBC filed a motion to dismiss this appeal for lack of jurisdiction. CBC argued that this court lacked jurisdiction to determine the validity of the filing fee ordinance because MIG's site approval application did not meet the notice requirements of section 39.2(b) of the Environmental Protection Act (Ill. Rev. Stat. 1985, ch. 111 1/2, par. 1039.2(b)). Attached to CBC's motion was a certificate of publication showing that MIG published notice of its application on January 24, 1985, 13 days before it filed its application. We ordered the motion, together with MIG's response upon filing, to be taken with the case. MIG filed its response on April 11, 1986.

• 1, 2 We note initially that CBC was dismissed from this action by the trial court for lack of standing and has not appealed that ruling. CBC is a proper party on appeal only to respond to MIG's request for damages for the wrongful issuance of a temporary restraining order. Further, CBC did not raise this jurisdictional issue below, and the certificate of publication it now relies on is not part of the record on appeal. Despite these facts, we find that we can decide the issue of our jurisdiction and may properly consider the certificate of publication in doing so. An objection to jurisdiction may be imposed at any time, even by the appellate court on its own motion. (Kozsdiy v. O'Fallon Board of Fire & Police Commissioners (1975), 31 Ill. App.3d 173, 175.) Further, since the existence of a real controversy is an essential requisite to appellate jurisdiction, the court may allow facts affecting its right and duty to proceed in the exercise of appellate jurisdiction, not of record, to be proven by extrinsic evidence. People v. Lynn (1984), 102 Ill.2d 267, 272; La Salle National Bank v. City of Chicago (1954), 3 Ill.2d 375, 379.

Section 39.2(b) states in relevant part:

"No later than 14 days prior to a request for location approval the applicant shall cause written notice of such request to be served * * * on the ...


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