Before addressing the issues, we must dispose of defendants' motions to dismiss the appeal, which were taken with the case. Defendants contend that the circuit court's February 26, 1988, order finally disposed of the only proper post-trial motion filed in this case -- that is, the State's "Motion to Reconsider and Modify [the] Court's January 20, 1988 Order." This motion was filed on February 18, 1988, contemporaneously with the State's "Motion to Modify [the] Court's January 20, 1988 Order to Allow the People to File Their Third Amended Complaint."
APPELLATE COURT OF ILLINOIS, THIRD DISTRICT
THE COUNTY OF WILL ex rel. EDWARD F. MASTERS, State's
538 N.E.2d 219, 182 Ill. App. 3d 436, 131 Ill. Dec. 31 1989.IL.650
Appeal from the Circuit Court of Will County; the Hon. Thomas Ewert, Judge, presiding.
JUSTICE BARRY delivered the opinion of the court. HEIPLE and STOUDER, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BARRY
On September 24, 1987, the County of Will filed a four-count complaint for injunctive relief against defendants Waste Management of Illinois, Inc. (Waste Management), and the Illinois Environmental Protection Agency (the Agency) seeking to restrain Waste Management from operating a solid waste disposal site upon property located at 111th Street in Wheatland Township, Will County, Illinois. The complaint was subsequently amended to include only three counts, and the People of the State of Illinois, through the Illinois Attorney General, were granted leave to intervene and adopt the county's pleadings. The circuit court of Will County ultimately dismissed a second amended complaint with prejudice on January 20, 1988. Post-trial motions filed by the State for reconsideration, modification and leave to file a third amended complaint were denied on February 26 and March 14, 1988, and plaintiffs filed their notices of appeal on April 12, 1988.
The issues presented for our consideration are: (1) whether the complaint was improperly dismissed for failure to allege specific facts constituting a substantial and imminent danger to the environment; (2) whether plaintiffs were required to exhaust administrative remedies pursuant to section 31(b) of the Environmental Protection Act (Ill. Rev. Stat. 1987, ch. 111 1/2, par. 1031(b)) (the Act); (3) whether the circuit court's finding that the disposal site is not a "new regional pollution control facility" as defined in section 3.32 of the Act (Ill. Rev. Stat. 1987, ch. 111 1/2, par. 1003.32) was in error; and (4) whether the circuit court abused its discretion in denying the State leave to file its proposed third amended complaint.
Defendants correctly point out that the State's latter motion is not among those post-judgment motions listed in section 2-1203(a) of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2-1203(a)) and cannot be granted after a judgment of dismissal without vacating or setting aside the underlying judgment. (Pickle v. Curns (1982), 106 Ill. App. 3d 734, 435 N.E.2d 877; Fultz v. Haugan (1971), 49 Ill. 2d 131, 273 N.E.2d 403.) Certainly where successive post-judgment motions are filed, precedent dictates that the losing party cannot hope to delay the time for appeal with a motion for leave to file an amended complaint. This was the situation in Fultz, and the policy for this rule was explained by our supreme court in Sears v. Sears (1981), 85 Ill. 2d 253, 422 N.E.2d 610. In Sears, the court held that "successive post-judgment motions are impermissible when the second motion is filed more than 30 days after the judgment or any extension of time allowed for the filing of the post-judgment motion." 85 Ill. 2d at 259, 422 N.E.2d at 613 (reaffirming the rule of Deckard v. Joiner (1970), 44 Ill. 2d 412, 255 N.E.2d 900).
The facts before us, however, are somewhat unique in that the State's motion for leave to amend was filed within the 30-day period allowed for post-judgment motions and well before the court ruled on any post-judgment motion. The record discloses that at the hearing on the State's motions on February 26, the court announced that the State's motion to modify and for leave to file a third amended complaint would be taken under advisement. In a docket entry of March 1, the court ruled against the State and charged Waste Management with presenting a written order. The order was signed, as aforesaid, on March 14, 1988.
It is thus apparent that the delay in disposing of all post-judgment matters was not occasioned in this case by the losing party, but by the court and the party charged with preparing a written order. Under the circumstances, the policy considerations cited by the Sears court -- e.g., avoidance of "Judge shopping," harassment and inefficient court administration -- would not dictate that plaintiffs' appeals here be dismissed as untimely.
We note, moreover, that the State's motion to modify and for leave to file a third amended complaint is substantially the same as a "motion to set aside [an order of] dismissal on the ground that the defect in the complaint could be easily cured by amendment." This, according to the Sears court, was the nature of the first of two successive post-judgment motions filed by the plaintiff in Drafz v. Parke Davis Co. (cause No. 53186), consolidated for appeal with Sears. (Sears, 85 Ill. 2d at 257, 422 N.E.2d at 611.) The court's Discussion indicates that the time for appeal in Drafz ran from the date of the circuit court's denial of the motion to set aside. If, as defendants contend here, the State's hybrid "motion to modify and for leave to file a third amended complaint" is neither a permissible post-judgment motion under section 2 -- 1203(a) of the Code of Civil Procedure, nor operative to stay enforcement of the underlying judgment, then it would seem that plaintiff's notice of appeal in Drafz should have been filed within 30 days of the order dismissing the complaint, instead of within 30 days of the order denying the first post-judgment motion. We hold, therefore, that inasmuch as the State's motion to modify and for leave to file a third amended complaint in this case was filed within the 30-day period allowed for post-judgment motions, plaintiffs' notices of appeal, filed within 30 days of the denial of said motion, were timely and sufficient to confer appellate jurisdiction pursuant to Supreme Court Rule 303 (107 Ill. 2d R. 303).
On the merits, we find that plaintiffs' complaint should not have been dismissed. The waste disposal site here at issue was the subject of this court's attention in a prior suit involving defendant Waste Management's predecessors in interest, Donald and Carol Hamman. (Mathers v. Pollution Control Board (1982), 107 Ill. App. 3d 729, 438 N.E.2d 213.) We there considered whether adequate notice of the initial public hearing before the Illinois Pollution Control Board was given pursuant to section 40 of the Act (Ill. Rev. Stat. 1987, ch. 111 1/2, par. 1040) and whether the Board's decision ordering the Agency to grant the developmental permit was contrary to the manifest weight of the evidence. We found the notice statutorily and constitutionally adequate, and we held that the Board's decision was erroneous with respect to the upgrading of the access road. We remanded the cause "with directions . . . to issue a ...