No. 3--03--0924

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2005

JUSTICE McDADE delivered the opinion of the court:

In this appeal from proceedings before the Illinois Pollution Control Board (IPCB), thepetitioner, Waste Management of Illinois, Inc., appeals from a reversal by the IPCB of a grant ofapproval for the expansion of a landfill in Kankakee County granted by the Kankakee CountyBoard. The IPCB found that the petitioner had failed to give proper notice of its filing forapproval to one out of 76 potentially affected property owners, in violation of Section 39.2(b) ofthe Illinois Environmental Protection Act, (415 ILCS 5/39.2(b)(West 2004)). For the followingreasons, we affirm.

FACTS

The petitioner filed its application for site approval with the respondent, the County ofKankakee, on August 16, 2002. The application requested approval for a 302 acre expansion ofan existing landfill in unincorporated Kankakee County. After a lengthy hearing, held on 11 daysbetween November 18th and December 6, 2002, the Board granted the approval on January 31,2003.

Following the grant of approval, the respondents, The City of Kankakee, Merlin Karlock,Keith Runyon, and Michael Watson filed third party appeals with the IPCB, alleging that theCounty Board lacked jurisdiction to grant the application because one adjacent landowner,Brenda Keller, was not served with notice of the filing as required under the IllinoisEnvironmental Protection Act. (415 ILCS 5/39.2(b)(West 2004)).

At the hearing before the board, Ryan Jones, an employee of Diligent Detective Agency,testified about his efforts to serve Brenda Keller. Jones attempted personal service on Keller onJuly 29, 2002, and on July 30, 2002. On both occasions, no one was home. On July 31, 2002,Jones again attempted personal service. On that day, a woman, not Brenda Keller, answered thedoor, but refused to accept service on Keller's behalf. On August 31, 2002, Jones posted noticeon Brenda Keller's door after again attempting to personally serve her.

An affidavit was presented from Jones' supervisor, Chris Morrical, which stated thatKeller was sent a regular letter giving notice. There was no evidence, however, that Keller wassent a certified letter.

Brenda Keller testified that she lives with her husband, Robert Keller. They receive theirmail at the post office in a post office box. She had never seen Ryan Jones and did not receivepersonal service from him. She did not observe any notice attached to her door. She did notspeak to her husband about the hearing or learn of it from him. She stated that she was not tryingto avoid service.

Robert Keller testified that he was Brenda Keller's husband. He stated that he did not, atany time, see notice posted on his house. He did not discuss the hearings with his wife until theday of the hearing, when she learned about them. He had responded to a return receipt when hereceive a certified letter regarding the hearing. His wife had done so on a previous occasion whenasked to do so. He did not see a certified letter addressed to his wife for the most recent hearing,even though he gets the mail every day.

On August 7, 2003, the IPCB issued an order reversing the approval granted by theBoard. The basis for the decision was that the Board lacked jurisdiction because of a failure toprovide proper notice to Mrs. Brenda Keller, an adjacent landowner. The IPCB subsequentlydenied the petitioner's motion to reconsider on October 16, 2003. The petitioner appeals.

ANALYSIS

When reviewing a question of law, such as the interpretation of a statute, the decision ofthe IPCB is not binding on the appellate court. Envirite Corp. v. Illinois EnvironmentalProtection Agency, 158 Ill. 2d 210, 214, 632 N.E.2d 1035, 1037 (1994). Rather, the appellatecourt shall review the question de novo. ESG Watts, Inc. v. Illinois Pollution Control Board, 191Ill. 2d 26, 29, 727 N.E.2d 1022, 1024 (2000).

However, the petitioner and respondent County of Kankakee argue that the issue ofwhether the county board lacked jurisdiction due to the failure of the petitioner to properly givenotice is a determination that should be reviewed with deference to the decision of the countyboard, and should only be reversed if it is against the manifest weight of the evidence. Theseparties assert that "[i]t is for the local siting authority to determine the credibility of witnesses, toresolve conflicts in the evidence and to weigh the evidence presented." Land and Lakes Co. v. Illinois Pollution Control Board, 319 Ill. App. 3d 41, 53, 743 N.E.2d 188, 197 (2000). Therefore, when testimony is provided regarding jurisdictional issues, as happened at the hearingsin this case, the reviewing court should apply the manifest weight of the evidence standard. Gaider v. Tippecanoe Distribution Services, 299 Ill. App. 3d 1034, 1039, 702 N.E.2d 316, 319(1998); Stein v. Rio Parismina Lodge, 296 Ill. App. 3d 520, 523-24, 695 N.E.2d 518, 521(1998).

We believe that de novo review is appropriate. The relevant facts are not in dispute. Nocredibility determination was required. We do not see Land of Lakes and Geider as necessitatingmanifest weight of the evidence review solely because an evidentiary hearing was held, if therewas no dispute respecting the underlying facts. The task before us is to apply the undisputed factsto the statute. We engage in that inquiry de novo. ESG Watts, 191 Ill. 2d at 29, 727 N.E.2d at1024.

Section 39.2(b) provides:

"[n]o later than 14 days before the date on which the county board or governingbody of the municipality receives a request for site approval, the applicant shallcause written notice of such request to be served either in person or by registeredmail, return receipt requested, on the owners of all property within the subject areanot solely owned by the applicant, and on the owners of all property within 250feet in each direction of the lot line of the subject property, said owners being suchpersons or entities which appear from the authentic tax records of the County inwhich such facility is to be located; provided, that the number of all feet occupiedby all public roads, streets, alleys and other public ways shall be excluded incomputing the 250 feet requirement; provided further, that in no event shall thisrequirement exceed 400 feet, including public streets, alleys and other public ways. Such written notice shall also be served upon members of the General Assemblyfrom the legislative district in which the proposed facility is located and shall bepublished in a newspaper of general circulation published in the county in whichthe site is located. Such notice shall state the name and address of the applicant,the location of the proposed site, the nature and size of the development, thenature of the activity proposed, the probable life of the proposed activity, the datewhen the request for site approval will be submitted, and a description of the rightof persons to comment on such requests as hereafter provided."

Illinois Environmental Protection Act (415 ILCS 5/39.2(b)(West 2004)).

Initially, the petitioner concedes that Brenda Keller was required to be served but arguesthat the statute does not exclusively require service "in person or by registered mail, return receiptrequested." It contends that the IPCB has ignored both the language of the statute and relevantcase law in interpreting section 39.2(b) strictly rather than liberally.

The petitioner argues that the IEPA explicitly requires that the act be construed liberally toachieve its purpose and intent, and that the strict construction given by the IPCB frustrates thatpurpose and intent. The petitioner asserts that the purpose of the notice requirement is to assurethat landowners receive actual notice of development occurring near their land. Underpetitioner's interpretation of the statute, any notice that either actually or constructively places alandowner on notice is sufficient.

We find no legal authority for the petitioner's expansive interpretation of the statute. When determining statutory meaning, the court must give effect to the intent of the legislature,which is discovered through an examination of the plain language of the statute. People ex rel.Devine v. $30,700 U.S. Currency, 199 Ill. 2d 142, 150, 766 N.E.2d 1084, 1089-90 (2002). Where that language is plain and unambiguous, the court may not depart from the plain languageby reading into it exceptions, limitations, or conditions not expressed by the legislature. $30,700U.S. Currency, 199 Ill. 2d at 150, 766 N.E.2d at 189-90. "Moreover, when the language of thestatute is express and plain, a court must not search for subtle intentions of the legislature."$30,700 U.S. Currency, 199 Ill. 2d at 150, 766 N.E.2d at 189-90.

The plain language of the statute requires that notice be provided "in person or byregistered mail, return receipt requested." This language is not in the least bit ambiguous. As amatter of statutory construction, then, the matter is resolved. The legislature clearly intended, asexpressed by the plain language of the statute, that notice be provided "in person or by registeredmail, return receipt requested."

However, the petitioner notes that the IPCB has allowed for notice to be served by"certified mail, return receipt requested." Ash v. Iroquois County Board, Ill. Pollution Control Bd.Op. 87-29 (July 10, 1987). According to the petitioner, this illustrates the IPCB's willingness,under different circumstances, to adopt a more liberal construction to the statute allowing formethods of service not explicitly mentioned in section 39.2(b). An examination of Ash revealsthat the IPCB allowed notice by certified mail, return receipt requested instead of by registeredmail, return receipt requested because the board could not find any substantive difference betweenthe two types of service. Ash v. Iroquois County Board, Ill. Pollution Control Bd. Op. 87-29(July 10, 1987). This approach is supported by case law as well. People ex rel. Head v. Board ofEducation of Thorton Fractional Township S.H.S. Dist. No. 215, 95 Ill. App. 3d 78, 81, 419N.E.2d 505, 507 (1981)(difference between certified mail, return receipt requested and registeredmail, return receipt requested not of "pivotal importance" when both document that the addresseereceived the letter.); Olin Corp. v. Bowling, 5 Ill. App. 3d 1113, 1116-17, 420 N.E.2d 1047, 1050(1981) ("when a return receipt is requested, certified mail becomes 'the functional equivalent ofregistered mail for court purposes.'"); Bultman v. Bishop, 120 Ill. App. 3d 138, 143, 457 N.E.2d994, 997 (1983)(concurring with Olin Corp.). Clearly, certified mail, return receipt requested, isthe exact equivalent of registered mail, return receipt requested, for purposes of the statute. Suchis not the case, however, with regular mail, which provides no assurance of receipt.

The fact remains, however, that the language of the statute is clear and unambiguous thatnotice must be given to all relevant landowners by registered mail, return service requested (or itsfunctional equivalent), or by personal service. Neither type of service was perfected with respectto Brenda Keller. The failure of notice is a jurisdictional issue; the county board does not havejurisdiction if all landowners have not been given notice according to the statute. Ogle CountyBoard on Behalf of County of Ogle v. Pollution Control Board, 272 Ill. App. 3d 184, 192, 649N.E.2d 545, 551-52 (1995); Kane County Defenders, Inc. v. Pollution Control Board, 139 Ill.App. 3d 588, 593, 482 N.E.2d 742, 746-47 (1985).

The petitioner argues that strict adherence to the language of the statute would allowlandowners to avoid service by refusing to sign the return receipt, and thereby deny the countyboard jurisdiction. All that is required by the statute is that notice is sent by registered mail,return service requested. Jurisdiction is not premised on the recipient's actions, once the letter isreceived, but on the form of the sending of the letter; jurisdiction will exist as long as the letter issent by the prescribed method.. People ex rel. Devine v $30,000 US Currency, 199 Ill. 2d 142,151, 766 N.E.2d 1084, 1090 (2002).

The petitioner next argues that either actual notice or constructive notice is sufficient tosatisfy the requirement of the statute, even if that notice was made in a way not contemplated bythe statute. Petitioner has cited no authority in support of this argument.

The statute prescribes two forms of service, neither of which was used by the petitioner. There is no law to support the petitioner's assertion that either posting or regular mail is sufficientto satisfy the statute. There is substantial law, discussed above, that holds that the plain meaningand language of the statute governs. The petitioner's argument to the contrary is without merit.

In addition, petitioner argues that Brenda Keller had actual notice of the hearing beforethe county board. The testimony established that Keller's husband received notice, and thatnotice of the hearing was posted on Keller's door. Even if we assume that those facts proveactual notice, it could make no difference. Notice would not have been achieved by thestatutorily-required means and proof of actual notice would not overcome that failure ofcompliance.

Finally, with regard to constructive notice, the Pollution Control Board has held thatconstructive notice of a hearing may be presumed in instances where a property owner hasrefused or avoided service. ESG Watts v. Sangamon County Board, Ill. Pollution Control Bd.Op. 98-2 (June 17, 1999). However, in this case, there is no evidence that Brenda Keller refusedservice. Additionally, in Waste Management of Illinois, Inc. v. Village of Bentsenville, Ill.Pollution Control Bd. Op. 89-28 (Aug. 10, 1989), the Pollution Control Board made clear thatconstructive notice applies in cases where the landowner has avoided those forms of servicepermitted by the statute, such as when a landowner refuses to acknowledge the receipt of aregistered letter. Waste Management of Illinois, Inc. v. Village of Bentsenville, Ill. PollutionControl Bd. Op. 89-28 (Aug. 10, 1989). Since there is no indication that Keller attempted toavoid personal service or that she refused to acknowledge the receipt of a registered letter (sinceone was not sent to her), a finding of constructive notice is unwarranted.

CONCLUSION

The petitioner's argument that the landowner Brenda Keller received sufficient noticeunder the Illinois Environmental Protection Act is unavailing. The plain language of the statuterequires that service be made by personal service or registered mail, return receipt requested. Neither form of service was perfected in this case. The plain language of the statute shouldgovern, and thereby remove jurisdiction from the County Board because of the failure of service. The petitioner argues that, despite its failure to comply with the statute, sufficient notice shouldbe presumed if it can be shown that the landowner received actual notice. However, there is nolaw to indicate that actual notice by a non-prescribed method is sufficient to satisfy the statutoryrequirement. Finally, the petitioner argues that the landowner had constructive notice. A findingof constructive notice requires a showing that the landowner sought to avoid service by one of theprescribed methods of notice. There is no evidence of such avoidance here. Since notice was notsufficient, the county board did not have jurisdiction. The ruling of the Illinois Pollution ControlBoard is therefore affirmed.

Affirmed.

SCHMIDT and HOLDRIDGE, J.J., concurring.