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Village of South Elgin v. Waste Management of Illinois

May 28, 2004

[5] THE VILLAGE OF SOUTH ELGIN, PLAINTIFF-APPELLANT,
v.
WASTE MANAGEMENT OF ILLINOIS, INC., DEFENDANT-APPELLEE
(OAK BROOK BANK, AS TRUSTEE, PURSUANT TO A TRUST AGREEMENT DATED APRIL 15, 1983, KNOWN AS NO. 8-1735; TRI COUNTY LANDFILL COMPANY, INC.; ARC DISPOSAL COMPANY, INC.; AND COUNTY OF KANE, DEFENDANTS).



[6] Appeal from the Circuit Court of Kane County. No. 02-CH-853 Honorable Michael J. Colwell, Judge, Presiding.

[7] The opinion of the court was delivered by: Justice Grometer

[8]  Plaintiff, the Village of South Elgin, appeals an order of the circuit court of Kane County granting motions to dismiss brought by defendant, Waste Management of Illinois, Inc., pursuant to sections 2--615 and 2--619 of the Civil Practice Law (735 ILCS 5/2--615, 2--619 (West 2002)). The trial court dismissed plaintiff's complaint with prejudice. Although plaintiff named a number of additional parties as defendants, this appeal involves only Waste Management of Illinois, Inc. We agree with the trial court's decision to grant defendant's motions to dismiss. However, we hold that plaintiff should have been allowed to amend a portion of its complaint. Accordingly, we affirm the order of the circuit court dismissing plaintiff's complaint, but we reverse that portion of the order dismissing the complaint with prejudice and remand for further proceedings.

[9]  I. BACKGROUND

[10]   The following facts are taken from plaintiff's complaint as well as various documents submitted by the parties. In ruling on a section 2--615 motion to dismiss, we must accept all well-pleaded facts as true. Krueger v. Lewis, 342 Ill. App. 3d 467, 470 (2003). Similarly, a motion to dismiss pursuant to section 2--619 admits all well-pleaded facts and the reasonable inferences capable of being drawn therefrom. People ex rel. Department of Public Aid v. Smith, 343 Ill. App. 3d 208, 213 (2003). The record must be construed in the light most favorable to the non-movant. Nolan v. Hillard, 309 Ill. App. 3d 129, 138 (1999). However, conclusions of law and conclusory factual allegations not supported by allegations of specific facts are not deemed admitted. Lawson v. City of Chicago, 278 Ill. App. 3d 628, 634 (1996). Moreover, it is well established that courts are to construe pleadings liberally with a view toward doing substantial justice between the parties. Cole v. Guy, 183 Ill. App. 3d 768, 773 (1989).

[11]   In 1976, a facility known as the Woodland Landfill opened on plaintiff's eastern border, in what was formerly a gravel quarry. Defendant is the operator of the facility. The landfill is located on a 213-acre site that is owned by defendant. In 1982, it was determined that the facility could sustain operations for only 36 more months. Defendant sought and received a permit from Kane County that allowed the site to continue to operate. In 1988, defendant sought another permit that would allow the landfill to operate for an additional 15 years.

[12]   Plaintiff was initially opposed to the proposal to extend the life of the landfill for 15 years. Defendant's representatives met with plaintiff's mayor and village engineer to address plaintiff's objections to the extension. These discussions are referenced in the minutes from meetings of plaintiff's village board. Plaintiff alleges that these discussions resulted in an agreement whereby defendant agreed to certain conditions and plaintiff agreed not to oppose the project in hearings before the Kane County Board. Plaintiff further alleges that a letter from defendant to plaintiff's mayor that is dated July 8, 1988, memorialized the agreement. The letter begins, "Waste Management of Illinois, Inc., will agree to the following conditions with the Village of South Elgin, Illinois, and the County of Kane upon successful siting of our application which is before the Kane County Board *** and the issuance of an operating permit by the Illinois Environmental Protection Agency for this landfill expansion." The first condition set forth in the letter involves the financial responsibilities of plaintiff and defendant should any wells become contaminated. Defendant was to be responsible if the landfill caused the contaminations. If, however, it was shown that the contamination was caused by some other source, plaintiff was to reimburse defendant for any expenses defendant incurred. The letter also states that "Waste Management of Illinois, Inc., agrees and stipulates that this expansion will be the last expansion that we will attempt to do on this site which is commonly known as the Woodland Landfill site." Finally, it delineated defendant's obligations to monitor groundwater for contamination and to allow plaintiff to inspect the landfill.

[13]   Additionally, the application submitted by defendant for the 1988 extension contained certain representations. Among them, defendant set forth the number of trucks that would use the facility each day and their hours of operation. The application also contained an end-use plan that envisioned the area being used as a recreational area for activities such as bicycle riding, hiking, and sledding.

[14]   Plaintiff alleges that, pursuant to the terms of its agreement with defendant, it did not file with the Kane County Board any formal objection to the 15-year extension. During a public hearing on July 26, 1988, the letter of July 8 was read into the record. On September 13, 1998, the Kane County Board enacted a resolution granting approval for the 15-year extension. The Board imposed several conditions upon the grant. First, the resolution states that "the site will be developed and operated in a manner consistent with the representations made at the public hearing in this matter held on July 26, 1988." It also incorporated plaintiff's and defendant's financial responsibilities regarding potential contamination and defendant's obligations to monitor groundwater. Further, the resolution expressly incorporated defendant's letter of July 8. Another condition set forth in the resolution was that "[t]he site, commonly known as the Woodland site, shall not be expanded further."

[15]   On June 14, 2002, defendant filed an application with Kane County to operate a transfer station on the Woodland site. A transfer station is a "site or facility that accepts waste for temporary storage or consolidation and further transfer to a waste disposal, treatment or storage facility" (415 ILCS 5/3.500 (West 2002)). The proposed installation would occupy about 9 acres of the 120-acre area that the landfill occupies. It would service 406 trucks per day, which is well over twice the number using the landfill.

[16]   Plaintiff instituted the present action in response to defendant's attempt to secure approval for the transfer station. The sole count of its complaint is titled "Breach of Contract and Request for Specific Performance." Plaintiff conflates two distinct theories in this count. The first paragraph of the count alleges that the "conditions imposed by Kane County" constitute covenants that run with the land, while the third paragraph alleges that defendant's conduct amounts to "breaches of the covenants agreed to" by defendant. (Emphasis added.) These are discrete theories. The first allegation suggests a violation of the 1988 Kane County resolution authorizing the 15-year extension. The second intimates a breach of an agreement between plaintiff and defendant. Construing the complaint liberally, as we must (see Cole, 183 Ill. App. 3d at 773), we will address both theories. Our doing so does not prejudice defendant, for a review of defendant's brief filed in this court, as well as its motions to dismiss filed below, indicates that defendant is, and has long been, aware of both theories. Cf. Ruklick v. Julius Schmid, Inc., 169 Ill. App. 3d 1098, 1113 (1988) ("Here, the proposed amendment would apparently cure the pleading defect; it would certainly not prejudice or surprise defendants, who have been aware at least since the voluntarily dismissed complaint of the gravamen of plaintiffs' cause of action"); Pinelli v. Alpine Development Corp., 70 Ill. App. 3d 980, 1003 (1979) (finding no prejudice where, "[a]lthough the relief granted was not precisely what was requested, defendants cannot argue that they did not know plaintiffs were seeking a return of their property"); County of DuPage v. Kussel, 12 Ill. App. 3d 272, 278 (1973) ("If the trial clearly proceeded on a negligence theory and if the counterdefendant would not be prejudiced by applying res ipsa loquitur, this court could on its own motion amend the pleadings to comply with the proofs").

[17]   Indeed, defendant filed two separate motions to dismiss. The motion filed pursuant to section 2--619 of the Civil Practice Law (735 ILCS 5/2--619 (West 2002)) was based on, inter alia, plaintiff's "failure to exhaust its administrative remedies." This allegation is clearly responsive to plaintiff's claim that defendant violated the conditions imposed by Kane County in its resolution. Defendant's section 2--615 motion (735 ILCS 5/2--615 (West 2002)) asserted, in part, that plaintiff's complaint did not contain allegations showing an offer or valid consideration. This motion focused upon plaintiff's contract theory. The trial court accepted both of defendant's arguments; consequently, it granted both of defendant's motions. We largely agree with the trial court. However, as we will explain below, plaintiff must be given an opportunity to replead its contract theory.

[18]   II. ANALYSIS

[19]   This appeal presents two main issues. First, we must consider whether the doctrine of exhaustion of remedies bars plaintiff from proceeding. If not, we must then consider whether plaintiff has adequately pleaded a cause of action. We review de novo the decision of a trial court to dismiss a complaint under both sections 2--615 and 2--619 of the Civil Practice Law (735 ILCS 5/2--615, 2--619 (West 2002)). Canel v. Topinka, 342 Ill. App. 3d 65, 69 (2003).

[20]   A. Exhaustion of Administrative Remedies

[21]   Before turning to the substance of this issue, we must address defendant's contention that plaintiff has waived, for the purpose of this appeal, its ability to argue that it was not required to exhaust remedies. As defendant points out, points not argued before the trial court generally may not be raised for the first time on appeal. See Hansen v. Baxter Healthcare Corp., 198 Ill. 2d 420, 429 (2002). However, contrary to defendant's contention, plaintiff did, albeit briefly, address the issue. Plaintiff argued that exhaustion did not apply to its theory concerning a contractual obligation and then went on to explain why it believed a contract existed. While more extensive briefing likely would have been helpful to the trial court, plaintiff sufficiently contested defendant's assertion that exhaustion was required to put the trial court on notice of the issue, and the court did consider it, as it was one of the primary arguments asserted in defendant's section 2--619 motion. See Poplar Grove State Bank v. Powers, 218 Ill. App. 3d 509, 515 (1991) ("We note that plaintiff did not raise the waiver issue below and did not argue waiver in its motion for rehearing. Nonetheless, because the trial judge considered the issue after raising it sua sponte, we will also address the argument despite plaintiff's failure to pursue the matter more vigorously").

[22]   Moreover, the waiver rule is not jurisdictional; it is a prerogative of this court. Dillon v. Evanston Hospital, 199 Ill. 2d 483, 504-05 (2002). In Daniels v. Anderson, 252 Ill. App. 3d 289, 299 (1993), the court noted that "[o]ne of the purposes of the waiver rule--to allow the adversative process an opportunity to fully develop an issue below--would be particularly frustrated here because Daniels has been denied a full opportunity to contest application of the doctrine." Exhaustion is an affirmative defense (see Hawthorne v. Village of Olympia Fields, 204 Ill. 2d 243, 254 (2003); Milton v. Illinois Bell Telephone Co., 101 Ill. App. 3d 75, 82 (1981)), and, of course, the party asserting a defense bears the burden of establishing it (Glisson v. City of Marion, 188 Ill. 2d 211, 224 (1999)). Having raised the issue, defendant was surely aware of it and should have been aware of its obligation to establish the premises of its argument. Defendant does not explain what it would have ...


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