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02/19/88 Daubs Landfill, Inc., v. the Pollution Control

February 19, 1988

DAUBS LANDFILL, INC., PETITIONER-APPELLANT

v.

THE POLLUTION CONTROL BOARD ET AL., RESPONDENTS-APPELLEES

SECTION 39.2(B) OF THE ENVIRONMENTAL PROTECTION ACT (ILL. RE

v.

STAT. 1985, CH. 111 1/2, PAR. 1039.2(B)) SETS FORTH THE NOTICE REQUIREMENTS WHICH MUST BE MET BEFORE A COUNTY BOARD CAN TAKE ACTION ON A REQUEST FOR SITE LOCATION APPROVAL:



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

520 N.E.2d 977, 166 Ill. App. 3d 778, 117 Ill. Dec. 626 1988.IL.232

Petition for review of order of Pollution Control Board.

APPELLATE Judges:

JUSTICE LEWIS delivered the opinion of the court. KARNS and WELCH, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LEWIS

Petitioner, Daubs Landfill, Inc. (Daubs), appeals from an order of the Pollution Control Board vacating the Wayne County Board's siting approval for a proposed landfill to be operated by petitioner. The PCB held that the Wayne County Board lacked jurisdiction to proceed because of a descriptive defect in the notice of request for site location approval which was prepared by Daubs, sent to adjoining landowners, and published in the Wayne County Press.

The sole question presented by this appeal is whether a defect in the legal description of the proposed landfill location invalidated an otherwise accurate narrative description of the property in the notice of request which was mailed to adjoining landowners and published in the local newspaper. We hold that notice was sufficient to vest the county board with jurisdiction.

"No later than 14 days prior to a request for location approval the applicant shall cause written notice of such request to be served either in person or by registered mail, return receipt requested, on the owners of all property within the subject area not solely owned by the applicant, and on the owners of all property within 250 feet in each direction of the lot line of the subject property . . ..

Such written notice shall also be served upon members of the General Assembly from the legislative district in which the proposed facility is located and shall be published in a newspaper of general circulation published in the county in which the site is located. Such notice shall state the name and address of the applicant, the location of the proposed site, the nature and size of the development, the nature of the activity proposed, the probable life of the proposed activity, the date when the request for site approval will be submitted to the county board, and a description of the right of persons to comment on such request as hereafter provided." (Ill. Rev. Stat. 1985, ch. 111 1/2, par. 1039.2(b).)

The notice requirements contained in section 39.2 of the Environmental Protection Act have been held to be jurisdictional prerequisites which must be followed in order to vest the county board with the power to hear a landfill proposal. (Kane County Defenders, Inc. v. Pollution Control Board (1985), 139 Ill. App. 3d 588, 487 N.E.2d 743; Concerned Boone Citizens, Inc. v. M.I.G. Investments, Inc. (1986), 144 Ill. App. 3d 334, 494 N.E.2d 180.) Substantial compliance with notice provisions has been held to be insufficient where the statutory provisions are not merely technical requirements, but are jurisdictional. Prairie Vista, Inc. v. Central Illinois Light Co. (1976), 37 Ill. App. 3d 909, 346 N.E.2d 72; M. L. Ensminger Co. v. Chicago Title & Trust Co. (1979), 74 Ill. App. 3d 677, 393 N.E.2d 663.

Section 39.2(b) requires that notice state, inter alia, "the location of the proposed site." (Ill. Rev. Stat. 1985, ch. 111 1/2, par. 1039.2(b).) It does not specifically require a legal description. In this case, none was needed to adequately describe the proposed site and thereby apprise adjacent landowners and concerned citizens of the location of the property. The narrative description referred to a 180-acre tract of land located:

"1/2 mile North of Illinois State Highway 15 West of Fairfield, Wayne County, Illinois, and approximately 2 1/2 miles West of U.S. Highway 45 North of Fairfield, Wayne County, Illinois, and being approximately 2 miles West of the west city limits of the City of Fairfield, Wayne County, Illinois."

We believe the narrative description provided adequate notice of the proposed site location in this instance and, without reference to the legal description accompanying it, vested the county board with jurisdiction to proceed.

However, Daubs did include a legal description of the proposed landfill site along with the narrative description. The legal description contained an error (wrong township) which placed the location of the ...


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