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03/30/87 Mchenry County Landfill, v. the Environmental

March 30, 1987








506 N.E.2d 372, 154 Ill. App. 3d 89, 106 Ill. Dec. 665 1987.IL.390

Appeal from the Circuit Court of McHenry County; the Hon. Roland A. Hermann, Judge, presiding; and petition for review of order of Pollution Control Board.


JUSTICE UNVERZAGT delivered the opinion of the court. HOPF and DUNN, JJ., concur.


These two appeals, consolidated for opinion, involve plaintiff's attempts to gain site location approval for a new sanitary landfill in McHenry County pursuant to the provisions of the Environmental Protection Act (hereinafter designated the Act) (Ill. Rev. Stat. 1983, ch. 111 1/2, par. 1039.2). We begin by reviewing the somewhat complicated case history.

Plaintiff, McHenry County Landfill, Inc. (hereinafter designated Landfill), filed its initial request for site approval with McHenry County on November 27, 1984. In January and February 1985, the McHenry County board held hearings to determine the suitability of the site under the six criteria set out in the Act (Ill. Rev. Stat. 1983, ch. 111 1/2, par. 1039.2). The board denied the request, finding that plaintiff had established only three of the six criteria. Landfill then petitioned the Pollution Control Board (hereinafter designated the PCB) to review that decision as provided by section 40.1 of the Act (Ill. Rev. Stat. 1983, ch. 111 1/2, par. 1040.1). Cross-appeals were filed by Arthur T. McIntosh & Company, the Landfill Emergency Action Committee, the villages of Lakewood and Huntley and several others who participated in the county hearing (hereinafter referred to as the objectors) to challenge the board's Conclusion that three of the criteria had been met. The PCB determined that the county board improperly required Landfill to establish by the manifest weight of the evidence that its site met the statutory criteria, rather than using the appropriate preponderance of the evidence standard. The PCB concluded that, because the decision was not rendered under the correct standard, it had "no proper subject for review before it." It remanded to the county board, directing that it apply the correct standard but noting that it need not hold a new hearing. On October 15, 1985, the county board took a new vote and reaffirmed its first order, concluding that it had in fact applied the preponderance of the evidence standard in reaching that original decision.

Following the county board's second decision, Landfill submitted a statement to the Environmental Protection Agency (hereinafter the EPA) requesting that it issue Landfill a permit to develop the site, claiming that it had been approved by operation of law because the PCB had not followed the mandatory procedures set out in the Act (Ill. Rev. Stat. 1985, ch. 111 1/2, par. 1040.1) and because the county board had not taken "final action" within 120 days of the initial filing (Ill. Rev. Stat. 1983, ch. 111 1/2, par. 1039.2). However, Landfill also appealed the county board's second decision to the PCB. The EPA informed Landfill that it would not issue a permit absent an order from the PCB or a court of law.

On January 13, 1986, Landfill filed a declaratory action in the circuit court of McHenry County requesting that it stay the PCB proceedings and issue a declaratory judgment finding site approval by operation of law. The suit named the EPA, the PCB, and McHenry County as defendants. The trial court dismissed Landfill's action for failure to exhaust administrative remedies and lack of subject matter jurisdiction. The first of the two actions this opinion addresses, case No. 86 -- 265, is Landfill's appeal of that dismissal.

Following the trial court's dismissal, Landfill filed a motion with the PCB requesting that it declare that the site had been approved by operation of law for the same reasons raised in the trial court. On March 14, 1986, the PCB denied Landfill's motion and affirmed the county board's denial of site approval, but found that a fourth criterion had been met. Landfill appealed the PCB decision directly to this court as permitted by section 41 of the Act (Ill. Rev. Stat. 1985, ch. 111 1/2, par. 1041). That appeal names the PCB, McHenry County, and the objectors as defendants. The appeal, along with the objectors' cross-appeals, is case number 86-369, the second of the two appeals currently before this court. I

The first issue we must address is whether this court should review the dismissal of a declaratory action (case No. 86 --265) when a second appeal which directly addresses the substantive issues involved in the declaratory action is currently pending. One of the objectors, Arthur T. McIntosh & Company (in a motion to dismiss which we have taken with this case), and the appellees argue that case No. 86-265 should be dismissed as moot. We agree.

An appellate court will not render an opinion on a moot question or an abstract proposition or enter a declaratory judgment which will not affect the rights of the parties before it. (Johnson v. Quern (1980), 90 Ill. App. 3d 151, 154-55; Hilti, Inc. v. Griffith (1978), 68 Ill. App. 3d 528, 534.) Additionally, "a declaratory judgment will not issue where another appropriate proceeding involving the same subject matter and issues is already pending." Rasky v. Anderson (1978), 62 Ill. App. 3d 633, 637.

We conclude that no useful purpose could be served by reviewing the trial court's dismissal of Landfill's declaratory action. Clearly, a reversal would not empower the trial court to enjoin a PCB hearing or decision which has already occurred. (See Rasky v. Anderson (1978), 62 Ill. App. 3d 633, 636.) Additionally, even if we were to conclude that the trial court should have decided whether site approval had occurred by operation of law, the second appeal before us now is an "appropriate proceeding involving the same subject matter and issues." (62 Ill. App. 3d 633, 637.) We perceive that no prejudice will result to plaintiff because our review follows a PCB decision rather than one made by a trial court. We therefore dismiss case number 86 -- 265. II

Landfill raises the following arguments on appeal: (1) because the county board and the PCB failed to follow the Act's mandatory procedures, Landfill was entitled to deem its site approved; (2) the county board's hearing was fundamentally unfair because certain evidence offered by Landfill was excluded; and (3) the PCB's decision was against the manifest weight of the evidence. In addition, Landfill filed a motion to dismiss the objectors' cross-appeals (which motion we have taken with the case), claiming that they have no standing to appeal.

We will first consider Landfill's motion to dismiss the cross-appeals. Due process of law does not encompass the right to appeal an administrative decision, and affording that right is the exclusive prerogative of the legislature. (Board of Education v. Gates (1974), 22 Ill. App. 3d 16, 20.) Section 41(a) of the Act (Ill. Rev. Stat. 1985, ch. 111 1/2, par. 1041(a)) permits appeals only by those who have been denied a hearing, variance, or permit by the PCB-clearly not applicable to the objectors-or persons who are parties to a PCB hearing or are adversely affected by a final order or determination of the PCB. The PCB found that Landfill had met its burden in establishing four of the statutory criteria for site approval, but had failed to establish the remaining two. It then affirmed the county board's denial of Landfill's site approval request. The objectors oppose the landfill and thus cannot have been directly adversely affected by that decision. (See Dolnick v. Redmond (1972), 4 Ill. App. 3d 1037, 1040 (noting that the adverse effect must be direct to confer standing to appeal).) The objectors thus have no standing to appeal unless they were properly parties to the PCB hearing.

The PCB permitted the objectors to file cross-appeals of the county board's decision, concluding that failure to do so would frustrate its policy of reviewing all local decisions. Section 40.1 of ...

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