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Frank Rosenberg Inc. v. Tazewell County

decided: August 11, 1989.

FRANK ROSENBERG, INC., PLAINTIFF-APPELLANT,
v.
TAZEWELL COUNTY, A BODY POLITIC, JERRY APPENZELLER, JAMES CARIUS, JAMES DAWSON, FRED ERTMOED, KENNETH EUBANKS, THOMAS FABRY, ROBERT B. FORSYTH, ROBERT LUTZ, LARRY NOREUIL, WILMA O'DONNELL, AND RALPH PALUSKA, INDIVIDUALLY AND AS MEMBERS OF THE TAZEWELL COUNTY BOARD, DEFENDANTS-APPELLEES



Appeal from the United States District Court for the Central District of Illinois, Peoria Division. No. 87-1289 -- Michael M. Mihm, Judge.

Posner, Flaum, and Ripple, Circuit Judges.

Author: Ripple

RIPPLE, Circuit Judge.

The plaintiff-appellant Frank Rosenberg, Inc. (Rosenberg) brought this section 1983 action against Tazewell County, Illinois and individual present and former members of the Tazewell County Board (County Board). At the heart of Rosenberg's complaint is a 1986 County Board denial of a siting permit for a regional pollution control facility. The district court dismissed the action for lack of standing. Rosenberg filed a timely appeal.*fn1 We now affirm.

I.

BACKGROUND

A. Facts

In 1985, Rosenberg sought to sell land known as Rosenberg Industrial Park to Kirby-Coffman, Inc. (Kirby). Rosenberg Industrial Park formerly served as a municipal landfill for waste collected in Tazewell County; it is located one mile south of Pekin, in an unincorporated area of Tazewell County. Three letters from Kirby to Rosenberg allegedly form a contract for the sale of Rosenberg Industrial Park at a price of $2,500,000.*fn2 However, Kirby's obligation to purchase the land was subject to several conditions precedent, one of which was the signing of a contract, by Kirby or one of its affiliates, to construct or participate in the construction of a waste-to-energy facility or other co-generation facility providing steam or energy. The letters also evidence that the parties understood that no firm funding commitment for such a project was possible until all necessary permits and contracts had been obtained.

The waste-to-energy facility was intended for a ten-acre tract located within Rosenberg Industrial Park. Under the Illinois Environmental Protection Act (the Act), Ill.Ann.Stat. ch. 111 1/2, para. 1001 et seq., the proposed waste-to-energy facility was considered a "regional pollution control facility." See Ill.Ann.Stat. ch. 111 1/2, para. 1003.32. Therefore, the proposed facility siting was subject to approval by various state and local authorities. Thus, before Kirby could begin construction on a waste-to-energy facility in satisfaction of a condition precedent to its contract with Rosenberg, it needed approval of the facility site. Kirby petitioned the Illinois Environmental Protection Agency, which gave initial approval to the proposed waste-to-energy facility.

Having cleared this first hurdle, Kirby next submitted an application to the County Board for its approval of the proposed facility location within Rosenberg Industrial Park. That application stated that Kirby had complied with all of the written application and notice requirements of the county board approval provision of the Act, see Ill.Ann.Stat. ch. 111 1/2, para. 1039.2, and therefore, the proposed facility to accept, handle, and incinerate municipal waste merited County Board approval. On July 21, 1986, the County Board held a public hearing at which Kirby presented oral testimony and written exhibits addressing the six criteria detailed in section 39.2 of the Act. Id.

On August 25, the County Board executive committee recommended that the full County Board approve Kirby's siting application. Two days later, however, the full County Board rejected the approval request by a vote of 14-7. On September 25, the County Board reconsidered its vote of August 27, and, by a vote of 11-10, again rejected Kirby's siting application. Voting against the application were defendant County Board members Appenzeller, Carius, Dawson, Ertmoed, Eubanks, Fabry, Forsyth, Lutz, Noreuil, O'Donnell, and Paluska. In conjunction with its September 25 vote, the County Board made findings of fact supporting its denial of the site location. See R.1 at Ex. G; see also Ill.Ann.Stat. ch. 111 1/2, para. 1039.2(e) ("Decisions of the county board . . . are to be in writing, specifying the reasons for the decision."). Kirby did not appeal the County Board's decision to the Illinois Pollution Control Board or seek a writ of mandamus from the Illinois circuit court.

In a letter dated October 27, 1986, Kirby informed Rosenberg that, due to the County Board's refusal to approve the facility siting application, Kirby had ceased all its efforts relating to the construction of a waste-to-energy facility at the Rosenberg Industrial Park. Accordingly, Kirby and Rosenberg did not consummate the sale of Rosenberg Industrial Park for $2,500,000.

B. Decision of the District Court

Following the breakdown of the sale, Rosenberg brought this section 1983 ...


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