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03/22/94 ENVIRONMENTAL CONTROL SYSTEMS v. POLLUTION

March 22, 1994

ENVIRONMENTAL CONTROL SYSTEMS, INC., APPELLANT AND CROSS-APPELLEE,
v.
THE POLLUTION CONTROL BOARD, APPELLEE AND CROSS-APPELLEE, AND MADISON COUNTY CONSERVATION ALLIANCE, RICHARD WORTHEN, CLARENCE BOHM, HARRY PARKER, GEORGE ARNOLD, CLINTON AUFDERHEIDE, MARY AUFDERHEIDE, WILLIAM DORRIS, AND MARY DORRIS, APPELLEES AND CROSS-APPELLANTS.



Appeal from the Illinois Pollution Control Board. PCB No. 90-239

Lewis, Maag, Goldenhersh

The opinion of the court was delivered by: Lewis

PRESIDING JUSTICE LEWIS delivered the opinion of the court:

Environmental Control Systems, Inc. (ECS), appeals from an order of the Pollution Control Board (PCB) vacating a prior decision of the Madison County Board (County Board), wherein the County Board granted site approval to ECS for the location of a regional pollution-control facility (landfill) within Madison County. Although ECS raises several issues in this appeal, the only issue we deal with herein is whether this court has jurisdiction to consider this appeal. Finding that we do not have jurisdiction under the facts of this case, we do not consider the additional points raised by ECS, and we reiterate only those facts that relate to the question of jurisdiction.

ECS filed an application for site approval for a regional pollution-control facility with the County Board on June 20, 1990. On November 14, 1990, after a three-day hearing, the County Board granted site approval. On December 18, 1990, several individuals and the Madison County Conservation Alliance (collectively referred to herein as MCCA) filed a third-party petition with the PCB. On April 11, 1991, the PCB entered an order finding that ECS had not followed the necessary notice procedure and, as a result, the County Board did not have jurisdiction to grant site approval. Accordingly, the PCB order vacated the County Board's site approval. On May 9, 1991, ECS filed a petition for direct review with this court, naming only the PCB and MCCA as respondents. On August 28, 1991, the PCB filed a motion to dismiss for failure to name the County Board as a respondent. On December 19, 1991, more than eight months after the PCB order was entered, ECS filed a motion to add the County Board as a party respondent.

We took the PCB's motion to dismiss with this appeal, and we also issued an order requiring ECS to show cause why this appeal should not be dismissed for lack of jurisdiction. Both the motion to dismiss and the order to show cause, as well as ECS' response to the show-cause order, are considered in this appeal. The narrow question we decide in this case is whether the failure to name the County Board as a respondent deprives the appellate court of jurisdiction under Supreme Court Rule 335. 134 Ill. 2d R. 335.

Final orders of the PCB, such as that entered by the PCB on April 11, 1991, are directly reviewable by the Illinois appellate court for the district in which the cause of action arose by filing a petition for review of the decision complained of within 35 days after entry of the order. (Ill. Rev. Stat. 1991, ch. 111 1/2, par. 1041 (now 415 ILCS 5/41 (West 1992)).) Additionally, Supreme Court Rule 335(a) provides:

"The procedure for statutory direct review of orders of an administrative agency by the Appellate Court shall be as follows:

(a) * * * The petition for review shall be filed in the Appellate Court and shall specify the parties seeking review and shall designate the respondent and the order or part thereof to be reviewed. The agency and all other parties of record shall be named respondents." 134 Ill. 2d R. 335(a).

In cases such as this, where a county board grants approval for the location of a landfill within that county, a third party wishing to contest that approval must do so under section 40.1 of the Environmental Protection Act. (Ill. Rev. Stat. ch. 111 1/2, par. 1040.1 (now 415 ILCS 5/40.1 (West 1992)).) Section 40.1 provides that both the county board and the applicant who was given site approval must be named as co-respondents before the PCB. In the case at bar, when MCCA filed its petition to contest the County Board's site approval, both the County Board and ECS were named as co-respondents. However, when ECS filed its petition seeking appellate review pursuant to Supreme Court Rule 335, only the PCB and MCCA were named as co-respondents and the County Board was not named in any capacity.

When analyzing jurisdictional principles, the Illinois Supreme Court has held that "when a court is in the exercise of special statutory jurisdiction, that jurisdiction is limited to the language of the act conferring it and the court has no powers from any other source." ( Fredman Brothers Furniture Co. v. Department of Revenue (1985), 109 Ill. 2d 202, 210, 486 N.E.2d 893, 896, 93 Ill. Dec. 360.) Although Fredman concerns circuit court jurisdiction of an administrative decision, the analysis applies to this case as well, since the constitutional provision conferring jurisdiction for administrative review upon the circuit courts is virtually identical to the provision conferring jurisdiction for administrative review upon the appellate courts. Both the appellate and circuit courts have such powers of administrative review "as provided by law." (Ill. Const. 1970, art. VI, secs. 6, 9.) The PCB argues, and we agree, that because of the similarity in the constitutional provisions, the same restrictions apply to both the appellate and the circuit court's power when reviewing administrative decisions.

Although the Illinois Supreme Court has not yet ruled upon the exact issue we face in the case at bar, it has recently ruled upon the same issue in a case involving administrative review by a circuit court. In Lockett v. Chicago Police Board (1990), 133 Ill. 2d 349, 549 N.E.2d 1266, 140 Ill. Dec. 394, the supreme court considered whether the failure to name a party in an action for administrative review by a circuit court was a fatal defect depriving the circuit court of jurisdiction. In Lockett, a Chicago policeman, who had been discharged from his employment, filed a petition for administrative review pursuant to the Administrative Review Law (Ill. Rev. Stat. 1985, ch. 110, par. 3-101 et seq.) in the Cook County Circuit Court. The petition for review failed to name the superintendent of the Chicago Police Department as a defendant.

The court analyzed the issue in two parts. First, it considered whether the superintendent was a necessary party to the action for administrative review. After deciding that the superintendent was indeed a necessary party, the court considered whether failure to join him as a party could be cured by amendment after expiration of the 35-day period for filing the petition for review and serving summonses upon all defendants. Lockett v. Chicago Police Board (1990), 133 Ill. 2d 349, 549 N.E.2d 1266, 140 Ill. Dec. 394.

ECS argues that since Lockett was decided under provisions of the Administrative Review Law that do not specifically apply to appellate court review, the outcome of Lockett does not control the outcome of this case. We disagree. In Lockett, the court applied sections 3-103 and 3-107 of the Administrative Review Law (Ill. Rev. Stat. 1985, ch. 110, pars. 3-103, 3-107) and determined that "since the Administrative Review Law is a departure from common law, the procedures it establishes must be strictly adhered to in order to justify it application." ( Lockett, 133 Ill. 2d at 353, 549 N.E.2d at 1267.) The same reasoning applies with equal force to the statutes and rules under which ...


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