Nos. 2--02--0635 & 2--03--0200 cons.

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

JUSTICE BOWMAN delivered the opinion of the court:

The City of Waukegan (the City) filed suit against the NorthShore Sanitary District (the District) and the IllinoisEnvironmental Protection Agency (the Agency) in the circuit courtof Lake County, seeking declaratory and injunctive relief withrespect to the District's proposed construction of a "BiosolidsReuse Project" in Waukegan. The District filed a counterclaimthat, inter alia, asked the court to declare that the City's zoningand building regulations do not apply to it.

The District appeals the denials of (1) its motion forjudgment on the pleadings as to counts III through VI of the City'samended complaint, and (2) its motion for summary judgment oncounts I and II of its counterclaim. The City has filed a cross-appeal in which it asserts that the trial court erred in grantingthe District's motion for judgment on the pleadings and theAgency's motion to strike and dismiss, both as to counts I and IIof the City's amended complaint.

The District has also appealed the trial court's order ofFebruary 18, 2003, denying its motion for a temporary restrainingorder and granting the City's motion for a temporary restrainingorder. We have consolidated the two appeals.

BACKGROUND

The District is a governmental unit created by statute (see 70ILCS 2305/0.1 et seq. (West 2000)) to provide sewage disposal andwaste water treatment services to the 11 municipalities locatedwithin its designated area. The District operates a waste watertreatment facility in Waukegan and seeks to construct on its ownproperty the "Biosolids Reuse Project" (project). The project isintended to allow the District to create a usable by-product withthe sludge that the District currently transports to a landfill. The Agency issued the District the necessary permits forconstructing the project.

The City is a municipal corporation and home rule unit ofgovernment. The District alleges that the City has repeatedlysought to impede the project by changing its ordinances, passing amoratorium on the issuance of building permits for the area wherethe District's property is located, and opposing the issuance ofpermits by the Agency. The City maintains that the District mustcomply with its zoning and building ordinances.

On December 6, 2001, the City filed a complaint against theDistrict and the Agency seeking declaratory and injunctive relief.Counts I and II of the City's amended complaint ask the court todeclare that, under section 39(c) of the Environmental ProtectionAct (Act) (415 ILCS 5/39(c) (West 2000)), (1) the projectconstitutes a "new pollution control facility" that requires localsiting approval before the Agency may issue permits, and (2) theAgency's permits are void due to the District's failure to obtainlocal siting approval. The City further requests an injunction toprevent the District from commencing construction without localsiting approval. Counts III through VI of the amended complaintask the court to declare that the District must comply with theCity's zoning and building ordinances and to enjoin the Districtfrom constructing its project until it complies.

In its counterclaim, the District seeks, inter alia, adeclaration that it is not subject to regulation by the City and aninjunction preventing the City from imposing its zoning ordinancesupon the project.

The District moved for judgment on the pleadings and arguedwith respect to counts I and II of the amended complaint that theCity may not collaterally attack the Agency's issuance of permitsto the District. The Agency made this argument as well in itsmotion to strike and dismiss counts I and II of the amendedcomplaint.

As for counts III through VI of the amended complaint, theDistrict contended that a line of cases that the parties refer toas the "Des Plaines Trilogy" exempts the District from complyingwith the City's zoning and building codes. The City responded thatamendments to section 39(c) of the Act have overruled the "DesPlaines Trilogy" and require the District to comply with the City'sordinances.

On June 18, 2002, the trial court entered an order grantingboth the District's motion for judgment on the pleadings and theAgency's motion to strike and dismiss with respect to counts I andII of the amended complaint. The court agreed with the Districtand the Agency that the City may not collaterally attack theAgency's permitting decision. On that same date, the court deniedthe District's motion for judgment on the pleadings as to theremaining counts of the amended complaint on the ground thatsection 39(c) of the Act requires the District to comply with theCity's zoning and building ordinances. For the same reason, thecourt denied the District's motion for summary judgment on itscounterclaim. In its June 18 order, the court made findings thatthere was no just reason to delay the enforcement of or the appealfrom its rulings on the motion for summary judgment, the motion forjudgment on the pleadings, and the motion to strike and dismiss. The court also certified the following questions for appeal,pursuant to Supreme Court Rule 308 (155 Ill. 2d R. 308):

"(1) Whether under the Des Plaines Trilogy line of authority, if the North Shore Sanitary District is exercisingpower within its statutory grant, such exercise is subject to zoning restrictions imposed by Waukegan, a host home rule municipality[.] 

(2) Whether the amendments to the Environmental Protection Act have over ruled the Des Plaines Trilogy line ofauthority under the facts of this case[.]" The District filed a timely notice of appeal from the trial court'sorder and the City filed a timely cross-appeal.

While the District's initial appeal was pending, it attemptedto start constructing the project before the expiration of its airpermit on March 11, 2003. The City physically prevented theDistrict from beginning construction by placing police officers andsalt trucks at the entrance to the construction site. The Cityalso threatened to fine the District and to arrest the District'scontractors. The District and the City filed cross-motions fortemporary restraining orders.

On February 18, 2003, the court granted the City's motionfor temporary restraining order and denied the District's motionfor temporary restraining order. The court based its decision onits earlier ruling that the District is not exempt from complyingwith the City's zoning and building ordinances. Because the Citydenied the District's zoning applications, the District wasattempting to begin construction without the required permits. TheDistrict filed a timely petition for leave to appeal the trialcourt's order (see 188 Ill. 2d R. 307(d)). We granted theDistrict's motion to consolidate its appeals.

No. 2--02--0635

Before reaching the merits of this case, we first address theDistrict's motion to amend the record with minutes from a Waukegancity council meeting on October 21, 2002, at which the city councildenied the District's petitions for a conditional use permit andfor a variance. According to the District, the addition of theseminutes to the record on appeal will allow us to decide whether theCity's actions have exceeded the scope of its home rule authority. The City objects to the supplementation of the record, arguing thatthe minutes are not relevant to the issues before us. We agreewith the City. First, the District seeks to supplement, ratherthan amend, the record. Moreover, the minutes that the Districtseeks to add to the record go to the merits of the case, which arenot before us on appeal. Consequently, we deny the District'smotion to amend the record.

CERTIFIED QUESTIONS

The first certified question asks us to answer whether, underthe "Des Plaines Trilogy," the District is subject to the City'szoning restrictions if the District is exercising power within itsstatutory grant. As we understand it, this question asks us toconsider only the Des Plaines cases and not section 39(c) of theAct. The second certified question asks whether the amendments tosection 39(c) of the Act have overruled the Des Plaines cases. Tofacilitate our analysis of these questions, we first set out therelevant case law and statutory provisions.

In a series of cases, our supreme court addressed efforts bythe City of Des Plaines (Des Plaines) to impose its zoningordinances upon the Metropolitan Sanitary District of GreaterChicago (sanitary district) with respect to the sanitary district'sproposed construction of a water reclamation plant. In City of DesPlaines v. Metropolitan Sanitary District of Greater Chicago, 48Ill. 2d 11 (1971) (Des Plaines I), the supreme court determinedthat Des Plaines' zoning ordinance was not applicable to thesanitary district's power of eminent domain. Des Plaines nextasserted that, pursuant to the home rule powers granted by the 1970Illinois Constitution, it had the authority to enforce its zoningordinance against the sanitary district. In City of Des Plaines v.Metropolitan Sanitary District of Greater Chicago, 59 Ill. 2d 29(1974) (Des Plaines II), the supreme court rejected this argument,holding that its decision in Des Plaines I was res judicata. DesPlaines then enacted a health ordinance that required a permitprior to the construction of any "sewage works" that fell withinthe parameters set forth in the ordinance. The supreme court inMetropolitan Sanitary District of Greater Chicago v. City of DesPlaines, 63 Ill. 2d 256 (1976) (Des Plaines III), concluded thatthe application of the ordinance to the sanitary district, aregional entity serving numerous municipalities, did not pertain toDes Plaines' government and affairs and thus was not within itshome rule powers. Des Plaines III, 63 Ill. 2d at 260-62. Thecourt concluded that allowing a regional facility to be controlledby a part of the region would be incompatible with the purpose forwhich the regional entity was created. Des Plaines III, 63 Ill. 2dat 261.

Five years after the court issued its decision in Des PlainesIII, the General Assembly amended section 39(c) of the Act toprovide as follows:

"No permit for the development or construction of a newfacility other than a new regional pollution controlfacility may be granted by the Agency unless theapplicant submits proof to the Agency that the applicanthas secured all necessary zoning approvals from the unitof local government having zoning jurisdiction over theproposed facility." 1981 Ill. Laws 3574.

Section 39(c) was later amended to provide as follows:

"Except for those facilities owned or operated by sanitary districts organized under the Metropolitan Water

Reclamation District Act, and except for new pollutioncontrol facilities governed by Section 39.2, and exceptfor fossil fuel mining facilities, the granting of apermit under this Act shall not relieve the applicantfrom meeting and securing all necessary zoning approvalsfrom the unit of government having zoning jurisdictionover the proposed facility." 415 ILCS 5/39(c) (West2000).

Prior to the amendments, "the only requirements in the Actpertaining to local governmental involvement in permittingdecisions were that local governments were required to be notifiedwhen a request for a refuse-disposal permit had been requested, anda public hearing had to be held in the county where the proposedrefuse-disposal facility would be located." Village ofCarpentersville v. Pollution Control Board, 135 Ill. 2d 463, 468-69(1990).

The District contends that, pursuant to Des Plaines III, theCity's home rule power does not extend over a regional entity suchas itself that is operating within its statutory mandate. The Cityresponds that Des Plaines III is inapplicable to the facts at handand that section 39(c) of the Act has overruled Des Plaines III.

The first certified question asks whether, under the DesPlaines cases, the District is subject to the City's zoningregulation if the District is carrying out its statutory mandate. If one limits the applicable law to these cases, as the trial courthas asked us to do, then the answer to the first certified questionis no. The court in Des Plaines III held that a municipality lacksthe authority to regulate a regional sanitary district that servesmultiple communities. In the case at bar, the City is just 1 of 11localities served by the District. Consequently, under Des PlainesIII, the City's home rule power would not extend over the District.This conclusion, though, does not resolve the ultimate question ofwhether the amendments to section 39(c) have enlarged the scope ofthe City's zoning authority so as to effectively overrule the DesPlaines cases.

We believe that the answer to this question is found in thiscourt's earlier decision in Village of Carpentersville v. PollutionControl Board, 176 Ill. App. 3d 668 (1988), and the subsequentaffirmance by our supreme court (Carpentersville, 135 Ill. 2d 463).In Carpentersville, this court held that a condition in a permitissued by the Agency did not preempt a local zoning ordinance. Carpentersville, 176 Ill. App. 3d at 671. In so holding, we notedthat the language of section 39(c) of the Act (then Ill. Rev. Stat.1987, ch. 111