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11/02/95 CITY ELGIN ET AL. v. COUNTY COOK ET AL.

November 2, 1995

THE CITY OF ELGIN ET AL., APPELLEES,
v.
THE COUNTY OF COOK ET AL., APPELLANTS.--THE VILLAGE OF BARTLETT ET AL., APPELLEES, V. THE SOLID WASTE AGENCY OF NORTHERN COOK COUNTY, APPELLANT.



Appeal from the Appellate Court for the First District; heard in that court on appeals from the Circuit Courts of Cook and Kane Counties, the Hon. Michael J. Colwell and the Hon. Albert Green, Judges, presiding.

Rehearing Denied January 29, 1996.

The Honorable Justice Heiple delivered the opinion of the court: Justice Nickels, dissenting: Justice McMORROW joins in this dissent.

The opinion of the court was delivered by: Heiple

JUSTICE HEIPLE delivered the opinion of the court:

In 1988, elected officials from 28 of the municipalities in the Northwest Municipal Conference, representing approximately 950,000 Cook County residents, joined together to create the Solid Waste Agency of Northern Cook County (SWANCC). SWANCC is a municipal joint-action agency established by the Cook County board of commissioners (the Cook County board) pursuant to section 3.2 of the Intergovernmental Cooperation Act (5ILCS 220/3.2 (West 1992); see also Ill. Const. 1970, art. VII, § 10). SWANCC was established to continue the process that had begun in 1982 by the Northwest Municipal Conference, a predecessor municipal joint-action body, to develop a comprehensive plan for the regional management of solid waste generated by the member communities.

Part of the comprehensive plan that SWANCC developed addresses recycling, composting and waste-reduction efforts designed to reduce the amount of solid waste its member communities must send to landfills by 40% to 45% by 1996. Another part of the plan is the construction of a landfill for municipal solid waste called a "balefill" because it is designed to dispose of solid waste that has been compacted into large bales. It is intended that the proposed balefill facility will be located within the 410 Cook County acres owned by SWANCC and not within the 123 contiguous Kane County acres also owned by SWANCC. The proposed site was previously zoned for industrial use and contains a now-defunct strip mine.

Because the proposed site is located in unincorporated Cook County, SWANCC applied to the Cook County zoning board of appeals in January 1987 for a special planned use development permit to construct the balefill on the site. Public hearings on the application began on March 26, 1987, and concluded on August 12, 1987. The Village of Bartlett, the Village of South Elgin and the City of Elgin objected, thus requiring that the permit be approved by greater than three-quarters of the Cook County board. The zoning board of appeals unanimously recommended approval of the application, and on November 16, 1987, the Cook County board granted preliminary approval for the special use permit, though it conditioned final approval on the issuance of a development permit by the Illinois Environmental Protection Agency (Agency) within two years.

On November 22, 1988, SWANCC then filed an application for a development permit with the Agency, wherein it had the burden of demonstrating that the balefill would comply with the environmental standards set forth in the Illinois Environmental Protection Act (the Act) and its various implementing regulations. The Agency held public hearings on the original balefill application on February 1989, and denied it on May 18, 1989. SWANCC then submitted a revised application which responded to the Agency's criticisms. The Agency held more public hearings at which certain of the plaintiff municipalities testified regarding their concerns about the effect of the balefill on the environment. On November 16, 1989, the Agency issued a permit to develop the site, though with the condition that SWANCC also receive the approval of any necessary Federal agencies.

With the condition of the issuance of the Agency permit satisfied, the Cook County board, on January 16, 1990, enacted an ordinance granting final zoning approval for the balefill. Because the plan for the balefill specifies that standing water in some of the mined areas be filled, SWANCC must also receive approval from the United States Army Corps of Engineers pursuant to the Clean Water Act. The Army Corps of Engineers has twice refused to issue the required permit and an appeal of this decision was filed with the District Court for the Northern District of Illinois on December 16, 1994 (Solid Waste Agency of Northern Illinois v. United States Army Corps of Engineers (N.D. Ill.), No. 94-C-7489), and is still pending.

Subsequent to the Cook County board's issuance of the final planned unit development permit for development of the balefill, separate complaints contesting the balefill were filed in both the Cook County and the Kane County circuit courts. SWANCC prevailed in the CookCounty suit and lost in the Kane County suit. Appeals were sought from both the Cook County and the Kane County trial court rulings and, upon SWANCC's motion, this court consolidated these appeals in the First District of the appellate court. Upon receiving the appellate decision (257 Ill. App. 3d 186, 629 N.E.2d 86, 195 Ill. Dec. 778), SWANCC petitioned this court for leave to appeal and various of the plaintiffs cross-appealed. This court granted leave to appeal pursuant to Supreme Court Rule 315 (145 Ill. 2d R. 315). For purposes of clarity, this opinion disposes of the Cook County and the Kane County lawsuits in separate sections.

THE COOK COUNTY SUIT

On November 17, 1989, one day after the Agency issued the final Planned Unit Development (PUD) permit for the balefill, the City of Elgin, the Village of Bartlett, the Village of South Elgin, the Village of Wayne, and Hanover Township (the plaintiff municipalities) filed a five-count complaint against SWANCC and the Cook County board, seeking to overturn the county board's approval of a special use permit for the balefill. *fn1 The gravamen of the plaintiff municipalities' complaint is that the balefill ordinance was arbitrary and capricious; the procedures employed in approving the balefill ordinance were deficient; the balefill will cause environmentaldamage; and the balefill will economically injure the plaintiff municipalities in their corporate capacity.

SWANCC moved to strike the allegations of environmental harm on the ground that they constituted an impermissible collateral attack on the Agency's permitting decision. The circuit court of Cook County granted the motion and then, sua sponte, dismissed the entire complaint with prejudice and subsequently refused to allow the filing of an amended complaint. On appeal, the appellate court affirmed the dismissal of counts I, II, IV, V, VI and VII of the plaintiff municipalities' complaint, as well as the trial court's refusal to grant leave to file an amended complaint. (257 Ill. App. 3d 186.) However, the appellate court reversed the dismissal of count III, which it ruled stated a prima facie case of direct and adverse impact to the corporate capacity of the plaintiff municipalities such that they had standing to challenge the balefill zoning ordinance. 257 Ill. App. 3d at 194-97.

SWANCC appealed the appellate court's count III holding and the plaintiff municipalities sought cross-relief, seeking the reversal of the amended complaint ruling. For the reasons expressed below, we reverse the appellate court's count III holding and affirm its holding that the trial court properly denied leave to file an amended complaint.

I. Count III of the Cook County Complaint

The Pollution Control Board and Illinois Environmental Protection Agency are charged by the General Assembly with implementing the Environmental Protection Act. The Pollution Control Board establishes environmental standards and regulations and also adjudicates enforcement matters. (415 ILCS 5/5 (West 1992).) The Agency considers and applies these regulations in a variety of contexts, including its decisions to issue development and operation permits for pollutioncontrol facilities such as the instant balefill. (415 ILCS 5/4 (West 1992).) Only after an applicant such as SWANCC proves that a facility will not cause a violation of the Act or of the regulations can the Agency issue a development permit. (415 ILCS 5/39 (West 1992); 35 Ill. Adm. Code § 807.101 et seq. (1994).) To assist it in its evaluations, the Agency employs a staff of experts from various disciplines to consider and monitor, inter alia, air, noise and water pollution as well as groundwater quality.

Significantly, plaintiffs are statutorily precluded from legally challenging the Agency's decision to grant a development permit for a pollution control facility. *fn2 An Agency decision granting a permit cannot be appealed to the Pollution Control Board, which is only authorized to hear appeals where the Agency denies a permit or grants only a conditional permit. (415 ILCS 5/40(a)(1) (West 1992).) Further, the Act only authorizes judicial review of Pollution Control Board permitting decisions, and not Agency permitting decisions. (415 ILCS 5/41(a) (West 1992).) Consequently, judicial review of Agency decisions granting development permits for solid waste disposal sites is precluded and the instant plaintiffs cannot challenge the Agency's decision to grant the balefill development permit.

Yet, what the plaintiff municipalities cannot do directly they attempt to do indirectly through their complaintchallenging the Cook County board's zoning ordinance authorizing the siting and development of the balefill. Count III of the plaintiff municipalities' complaint is titled "Failure of the Proposed Plan to Meet Standards For Preliminary PUD Plat Approval," and alleges that the Cook County board's ordinance approving the siting of the balefill was arbitrary, capricious and unreasonable. The matters complained of in count III can be divided into three general categories: (1) Cook County's failure to abide by its own ordinances in approving the balefill; (2) Cook County's abdication of its responsibility to consider the deleterious environmental impact of the proposed balefill in that it conditioned its approval on the issuance of an Agency development permit; and (3) the deleterious environmental and economic impact of the balefill to the plaintiff municipalities in their corporate capacity. Our consideration of count III leads us to conclude that the circuit court was correct in dismissing count III with prejudice.

A. Alleged Failure to Adhere to the Cook County Ordinances in Passing the Balefill Ordinance

Count III alleges in large part that Cook County failed to follow various of its own ordinances in approving the balefill ordinance. Even if this were true, however, plaintiffs could not successfully challenge Cook County's balefill ordinance. In evaluating the balefill ordinance, we must keep in mind the broad powers of home rule units of government such as Cook County. Article VII, section 6(a), of the Illinois Constitution of 1970 provides in pertinent part:

"Except as limited by this Section, a home rule unit may exercise any power and perform any function pertaining to its government and affairs including, but not limited to, the power to regulate for the protection of the public health, safety, morals and welfare ***." (Ill. Const. 1970, art. VII, § 6(a).)

Moreover, article VII, section 6(m), provides that the powers and functions of home rule powers are to be construed broadly. Ill. Const. 1970, art. VII, § 6(m).

Indeed, this court has concluded that home rule units have all the powers of the sovereign, limited only by the constitution itself and the General Assembly. ( City of Urbana v. Houser (1977), 67 Ill. 2d 268, 273, 10 Ill. Dec. 239, 367 N.E.2d 692.) From this it follows that,

"this court cannot handle matters which in effect are attempts to overrule decisions of a legislative body based upon alleged failure to follow requirements imposed by that body on itself. *** We have authority to invalidate legislation *** only upon grounds that the enactment violates a provision of the Federal or State constitutions or violates the mandate of a State or Federal statute." ( Landmarks Preservation Council of Illinois v. City of Chicago (1988), 125 Ill. 2d 164, 179, 125 Ill. Dec. 830, 531 N.E.2d 9, citing Chirikos v. Yellow Cab Co. (1980), 87 Ill. App. 3d 569, 574, 43 Ill. Dec. 61, 410 N.E.2d 61.)

(Accord In re Application of the County Collector of Kane County (1989), 132 Ill. 2d 64, 74-75, 138 Ill. Dec. 138, 547 N.E.2d 107 (failure of home rule unit to comply with its own ordinance fatal only if said ordinance is mandatory).) Thus, insofar as plaintiffs have not alleged any violation of an applicable statute or constitutional provision, the trial court was correct in dismissing, with prejudice, the portions of count III alleging injury resulting from Cook County's alleged failure to comply with its own ordinances in approving the balefill ordinance.

B. Alleged Abdication of Responsibility in Failing to Consider the Environmental Impact of Balefill

Count III further alleges injuries resulting from the Cook County board's abdication of its responsibility to consider the deleterious environmental impact of the proposed balefill where, instead of conducting its own environmental studies, it granted a preliminary permit conditioned upon the Agency's approval and issuance of a development permit. In support, the plaintiff municipalitiescite to section 39(c) of the Act, which mandates that county boards approve the siting of solid waste facilities in unincorporated portions of their counties. 415 ILCS 5/39(c) (West 1992).

The Act was amended in 1981 to require local government siting approval as a precondition to the issuance of an Agency permit. (415 ILCS 5/39(c) (West 1992).) Prior to the amendment, this court had ruled that zoning ordinances of non-home-rule units of local government related to facilities governed under the Act were preempted by the Act. (See County of Cook v. John Sexton Contractors Co. (1979), 75 Ill. 2d 494, 514-15, 27 Ill. Dec. 489, 389 N.E.2d 553.) The amendment overruled this decision and made clear all units of local government, home rule and non-home-rule alike, have concurrent jurisdiction with the Agency in approving siting, because section 39(c) now requires local government approval of all proposed pollution control facilities.

This concurrent jurisdiction, however, does not require that the Cook County board act as a local environmental protection agency in considering a proposed site, thus duplicating the exhaustive efforts of the Agency in assessing the environmental impact of a proposed pollution control facility. In their contrary argument, the plaintiff municipalities point to section 39.2(a) of the Act, which sets forth exclusive siting requirements that local units of government must consider in deciding whether to approve the siting of a pollution control facility. However, Cook County is specifically exempted from this and all other siting provisions of section 39.2 by section 39.2(h) (415 ILCS 5/39.2(h) (West 1992) ("nothing in this Section shall apply to any *** new *** pollution control facility located within an unincorporated area of any county having a population of over 3,000,000")).

Thus, while nothing precludes the Cook County board from considering the section 39.2(a) siting factors, all the Act requires the board to consider is whether, in its judgment, the waste facility should be placed on the proposed site. (415 ILCS 5/39(c) (West 1992).) This the Cook County board did. That the Cook County board further chose to rely upon the Agency's environmental expertise in conditioning its final PUD permit on Agency approval is in no way an abdication or delegation of its duty under section 39(c), which does not require that Cook County consider such matters in the first place. Thus, we conclude that the circuit court was correct in dismissing count III of the complaint to the extent it was premised upon any section 39(c) abdication-of-duty theory.

C. Allegation that Decision to Approve Zoning was Arbitrary, Capricious and Unreasonable

The final category of harm alleged in count III is that the approval of the balefill was arbitrary, capricious and unreasonable in that the balefill will harm the environment and cause economic injury to the plaintiff municipalities.

As regards the alleged damage to the environment, we hold that these allegations constitute an impermissible collateral attack on the Agency development permit approving the balefill. (See 415 ILCS 5/40(a)(1) (West 1992).) Though the plaintiff municipalities contend that they are not attacking the Agency's decision to grant the permit but, rather, the Cook County board's zoning ordinance granting the permit, this distinction does not withstand scrutiny.

As noted earlier, the decision of the Agency to grant a development permit is appealable neither to the Pollution Control Board nor to our State courts. (415 ILCS 5/40(a)(1) (West 1992).) In approving the instant zoning ordinance, the Cook County board conditioned its approval on the Agency's issuance of a developmentpermit, a reliance entirely consistent with the Act's goal of uniformity in establishing a statewide agency with the technical expertise to uniformly apply rules and regulations to safeguard the environment. (415 ILCS 5/2(b) (West 1992).) Thus, we conclude that the Cook County board's environmental assessments, to the extent they are dependent upon the Agency's expertise and issuance of a development permit, far from being arbitrary, capricious or unreasonable, are entirely appropriate and not subject to attack in the courts of our State.

Secondly, the plaintiff municipalities assert that the balefill ordinance is arbitrary, capricious and unreasonable because the plaintiff municipalities will be economically injured by the balefill. In support the complaint alleges, inter alia, that the balefill will lead to more traffic, which will cause increased road maintenance and traffic control expenditures and that the balefill will diminish or impair property values such that there will be a decrease in property tax revenues. *fn3

The appellate court found that these alleged economic injuries, in conjunction with the environmental allegations discussed above, were sufficient to confer standing to challenge the Cook County zoning ordinance approving the balefill. In support, it cited this court's decisions in Village of Barrington Hills v. Village of Hoffman Estates (1980), 81 Ill. 2d 392, 396-97, 43 Ill. Dec. 37, 410 N.E.2d 37, and City of Hickory Hills v. Village of Bridgeview (1977), 67 Ill. 2d 399, 402-03, 10 Ill. Dec. 539, 367 N.E.2d 1305, which held that a municipality has standing to sue another municipality over its zoning decisions where it has a real interest in the controversy, the test being whether the municipality will suffer a direct and adverse injury. Because the injuries alleged in count III are similar ...


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