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Maggio v. Pollution Control Bd.

Court of Appeals of Illinois, Second District

March 31, 2014

MARTIN MAGGIO, Petitioner,
v.
THE POLLUTION CONTROL BOARD, THE COUNTY OF WINNEBAGO, THE WINNEBAGO COUNTY BOARD, and WINNEBAGO LANDFILL COMPANY, LLC, Respondents

Page 81

Appeal from the Order of the Illinois Pollution Control Board. No. PCB 13-10.

Affirmed.

SYLLABUS

Respondent county board had jurisdiction to approve respondent landfill company's application to expand its pollution control facility, since the company complied with section 39.2 of the Environmental Protection Act by properly serving all adjacent landowners by registered mail, return receipt requested, within the deadline imposed by section 39.2, and it reasonably calculated the delivery of the preapplication notices by sending them before submitting its application for approval.

Michael S. Blazer, of Jeep & Blazer, LLC, of Hillside, for appellant.

Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro, Solicitor General, Janon E. Fabiano and Brett E. Legner, Assistant Attorneys General, of counsel), for appellee Pollution Control Board.

Joseph P. Bruscato, State's Attorney, of Rockford (David J. Kurlinkus, Assistant State's Attorney, of counsel), for appellees County of Winnebago and Winnebago County Board.

Charles F. Helsten, of Hinshaw & Culbertson, of Rockford, and George Mueller, of Mueller Anderson & Associates, of Ottawa, for appellee Winnebago Landfill Company, LLC.

JUSTICE SPENCE delivered the judgment of the court, with opinion. Presiding Justice Burke and Justice Schostok concurred in the judgment and opinion.

OPINION

SPENCE, JUSTICE

Page 82

[¶1] Petitioner, Martin Maggio, appeals the order of the Illinois Pollution Control Board (IPCB) affirming the decision of the Winnebago County Board (County Board). The County Board conditionally approved the site location application submitted by Winnebago Landfill Company, LLC (WLC), for the expansion of WLC's existing solid waste landfill. On appeal, Maggio argues that the County Board lacked jurisdiction to approve the application, because, under section 39.2(b) of the Environmental Protection Act (Act) (415 ILCS 5/39.2(b) (West 2012)), a preapplication notice is not effective until it is received by the person to whom it is directed, and here not every person received the notice within the statutory time period. Maggio also argues that the IPCB erred in finding that WLC's service effort was reasonably calculated to achieve service 14 days before the siting application was filed. We affirm.

[¶2] I. BACKGROUND

[¶3] Section 39.2 of the Act allows county boards or municipal governing bodies to grant or deny requests for local siting approval for pollution control facilities. 415 ILCS 5/39.2 (West 2012). At issue in this appeal is the interpretation of section 39.2(b) of the Act (415 ILCS 5/39.2(b) (West 2012)), which involves preapplication notice by the applicant. That section states:

" No later than 14 days before the date on which the county board or governing body of the municipality receives a request for site approval, the applicant shall cause written notice of such request to be served either in person or by registered mail, return receipt requested, on the owners of all property within the subject area not solely owned by the applicant, and on the owners of all property within 250 feet in each direction of the lot line of the subject property ***." (Emphasis added.) Id.

[¶4] The facts in this paragraph come from a joint stipulation by Maggio and WLC to the IPCB. On December 27, 2011, WLC mailed preapplication notices to all property owners subject to notice under section 39.2(b) by placing the notices in a post office box in Ottawa. WLC sent the notices via certified mail, return receipt requested. The following day, WLC published a copy of the notice in the Rockford Register Star. Certain mailings were not claimed and were returned to WLC by the postal service; WLC made no further effort to serve these individuals. Moreover, notices were not delivered to certain other individuals until after January 3, 2012. WLC filed its siting application with the County Board on January 17, 2012.

[¶5] The County Board held a public hearing on the application from April 23, 2012, to April 30, 2012. The County Board approved the application on July 12, 2012.

Page 83

[¶6] Maggio appealed the County Board's decision to the IPCB on August 15, 2012. See 415 ILCS 5/40.1(b) (West 2012) (allowing 35 days from date of decision to petition IPCB for a hearing). Maggio alleged that he had participated in the hearing before the County Board as an objector. He further alleged that he " directly and indirectly" owned property adjacent to the subject landfill expansion. Maggio argued that: (1) the County Board did not have jurisdiction over WLC's siting request, because WLC failed to properly serve notice of the proceedings under section 39.2(b) of the Act, and (2) the County Board's proceedings had been fundamentally unfair. On January 2, 2013, Maggio withdrew his second claim, leaving only the jurisdictional issue.

[¶7] The IPCB conducted a hearing on December 4, 2012. On March 7, 2013, it affirmed the County Board's decision. According to the IPCB, 102 preapplication notices were mailed out. All of the notices had arrived at the " postal units" on December 29, 2011, ready to be delivered. By January 3, 2012, eight of the notices were unclaimed and returned to WLC. Three other notices, all related to the same parcel, were not received until after WLC submitted its application for siting approval.

[¶8] The IPCB found that WLC properly served all adjacent landowners within the deadline imposed by section 39.2(b). It further found that WLC reasonably calculated the delivery of the preapplication notices by sending them 21 days before submitting its application for siting approval. It therefore concluded that the County Board had jurisdiction to approve WLC's pollution control facility expansion.

[¶9] Specifically, the IPCB ruled that the phrase " return receipt requested" in section 39.2(b) is satisfied if the applicant simply sends the preapplication notices through " 'registered mail, return receipt requested,'" or its functional equivalent. The IPCB cited as authority for this proposition its decision in City of Kankakee, Ill. Pollution Control Bd. Op. 03-125 (Aug. 7, 2003), which was affirmed by the appellate court in Waste Management of Illinois, Inc. v. Pollution Control Board, 356 Ill.App.3d 229, 826 N.E.2d 586, 292 Ill.Dec. 445 (2005). The IPCB recognized that in Ogle County Board ex rel. the County of Ogle v. Pollution Control Board, 272 Ill.App.3d 184, 649 N.E.2d 545, 208 Ill.Dec. 489 (1995), this court held that section 39.2(b) requires actual receipt of a preapplication notice. The IPCB stated that Ogle County Board was effectively overruled by People ex rel. Devine v. $30,700 United States Currency, 199 Ill.2d 142, 766 N.E.2d 1084, 262 Ill.Dec. 781 (2002), where the supreme court found that the mailing of certified mail return receipt requested was sufficient to satisfy notice requirements. The IPCB further stated that Ogle County Board relied on the supreme court's ruling in Avdich v. Kleinert, 69 Ill.2d 1, 370 N.E.2d 504, 12 Ill.Dec. 700 (1977). The IPCB noted that Avdich involved the forcible entry and detainer statute, where notice was required to be sent to the tenant " 'by certified or registered mail, with a returned receipt from the addressee.'" Id. at 5 (quoting Ill. Rev. Stat. 1975, ch. 80, ¶ 10). The IPCB stated that in $30,700 United States Currency, the supreme court stated that the notice requirement in Avdich was not applicable to a notice ...


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