Rochester Buckhart Action Group v. Young

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State: Illinois

Court: 4th District Appellate

Docket No: 4-07-0682 Rel

Case Date: 03/14/2008

Preview:Filed 3/14/08

NO. 4-07-0682 IN THE APPELLATE COURT OF ILLINOIS FOURTH DISTRICT

THE ROCHESTER BUCKHART ACTION GROUP, Plaintiff-Appellee, v. ROBERT YOUNG, Defendant-Appellant.

) Appeal from ) Circuit Court of ) Sangamon County ) No. 07MR208 ) ) Honorable ) Leslie J. Graves, ) Judge Presiding. ______________________________________________________________ JUSTICE TURNER delivered the opinion of the court: In May 2007, plaintiff, Rochester Buckhart Action Group, filed a motion for preliminary injunction against defendant, Robert Young, to enjoin him from constructing or operating a hog farm on his property pending the outcome of litigation. May 2007, the trial court granted the preliminary injunction. August 2007, the court denied defendant's motion to vacate. On appeal, defendant argues the trial court erred in failing to vacate the preliminary injunction. remand. I. BACKGROUND Plaintiff is an Illinois general not-for-profit corporation organized to critically examine and oppose activities that adversely influence the use and value of property and the quality of health and the environment in the Rochester and Buckhart areas of Sangamon and Christian Counties. Defendant owns property in We reverse and In In

Sangamon County and operates a dairy farm, consisting of approximately 40 dairy cows at any given time. Defendant had previously

had a hog-confinement building on the property for as many as 2,300 animals, but it was demolished in 2004. In April 2007, plaintiff filed a three-count complaint against defendant for declaratory judgment (count I), nuisance (count II), and public nuisance (count III). Plaintiff alleged

defendant notified the Illinois Department of Agriculture (Department) in February 2006 of his intent to construct a hog finishing operation to house 3,750 hogs at his property. In his

notice of intent to construct, defendant stated the proposed facility was an expansion of an existing facility and would not be classified as a "new facility." He proposed to construct a

finisher building with a waste-storage structure under the building. He noted the existing structure "has been razed." The

facility would be within 1,200 feet of an occupied residence and within 3,700 feet of Buckhart. Defendant admitted the location

of the proposed facility would violate setback requirements if he were constructing a "new facility." In April 2006, the Department informed defendant that the setback requirements had been met. Thereafter, the Depart-

ment reviewed construction plans and conducted preconstruction site inspections with the understanding defendant's proposal did not meet the definition of a "new facility." Plaintiff claimed the proposed hog operation would produce "massive volumes of feces, urine, blood[,] and other waste," cause "extremely unpleasant odors," and "attract insects and disease vectors." Plaintiff alleged persons residing and - 2 -

businesses operating near the facility would be subject to odors and airborne contaminants that present a high probability of injuring their health and welfare and a diminution of property values. In May 2007, plaintiff filed a motion for preliminary injunction on count I of the complaint citing the Livestock Management Facilities Act (Act) (510 ILCS 77/1 through 999 (West 2006)). Plaintiff stated the Act provided minimum setbacks,

stiffer design requirements, and an opportunity for public notice, comment, and hearing when a "new facility" is contemplated. Plaintiff alleged defendant failed to notify the Depart-

ment of his intent to construct a "new facility" and failed to subsequently file a registration with the Department. Having

failed to comply with the Act's provisions, he was not authorized to construct the facility. Plaintiff also alleged that even if

defendant was expanding an existing facility, it remained a new facility because he was expanding the number of animal units to be confined on the property. Plaintiff sought a preliminary

injunction enjoining defendant from constructing and operating a hog farm pending the outcome of the litigation. In May 2007, the trial court granted the motion for preliminary injunction. The court found plaintiff had shown

"there is a fair question that [p]laintiff will succeed on the merits in claiming [d]efendant is constructing a 'new' livestock[-]management facility as defined in the Act." Further,

plaintiff would suffer irreparable harm if an injunction did not - 3 -

issue and no adequate remedy at law or in equity existed.

The

court enjoined defendant from continuing to construct a hogconfinement building on his property pending further order. In June 2007, defendant answered the complaint, raising as an affirmative defense that he was not constructing a "new" livestock-management facility but expanding an existing facility. In July 2007, defendant filed a motion to vacate the preliminary injunction, stating additional evidence had developed establishing he was expanding an existing facility and the fixed capital costs of the expansion did not exceed 50% of the fixed capital costs of replacing the existing facility with an entirely new one. Defendant attached the deposition of Warren Goetsch to his motion to vacate. Goetsch, an agricultural engineer, testi-

fied he worked as the Department's bureau chief of environmental programs. He stated a review of defendant's information and

calculations indicated a plan for an expansion of an existing facility. The Department determined defendant's proposed project

came in just below 41% of the fixed capital cost of replacing the entire existing facility, thereby taking the project outside the definition of a "new facility." Defendant also filed an affidavit stating the entire subject farm property had previously been designated by the Department as a single livestock-management facility. Further,

the property had historically housed "pasture and dairy facilities for dairy cows, both open and closed facilities for raising - 4 -

hogs, and a hog[-]confinement building for the finishing of hogs, which numbered as high as 2,300 animals." The hog-confinement

building had outlived its useful life and was demolished in 2004 to make way for the construction of a replacement building. June 2006, defendant obtained financing for its construction. In August 2007, the trial court denied defendant's motion to vacate the preliminary injunction. Defendant then In

filed a notice of interlocutory appeal pursuant to Supreme Court Rule 307 (188 Ill. 2d R. 307). II. ANALYSIS Defendant argues the trial court erred in declining to vacate the preliminary injunction, thereby enjoining the completion of his hog-confinement building. We agree.

"The purpose of the preliminary injunction is to preserve the status quo pending a decision on the merits of a cause." Callis, Papa, Jackstadt & Halloran, P.C. v. Norfolk &

Western Ry. Co., 195 Ill. 2d 356, 365-66, 748 N.E.2d 153, 159 (2001). "To establish entitlement to a preliminary injunctive relief, the plaintiff must demonstrate (1) a clearly ascertainable right that needs protection; (2) irreparable harm without the protection of an injunction; (3) no adequate remedy at law for plaintiff's injury; and (4) a substantial likelihood of success on the merits in the underlying ac- 5 -

tion."

Franz v. Calaco Development Corp.,

322 Ill. App. 3d 941, 946, 751 N.E.2d 1250, 1255 (2001). The trial court has the inherent power during the pendency of a case to issue, modify, or vacate a preliminary injunction. Patrick Media Group, Inc. v. City of Chicago, 252 The court

Ill. App. 3d 942, 946, 626 N.E.2d 1062, 1065 (1993).

has the power "to dissolve a preliminary injunction absent change of facts or law from the time of issuance to the time of dissolution, provided a sufficient basis exists to support dissolution." Patrick, 252 Ill. App. 3d at 946, 626 N.E.2d at 1065. On appeal,

a trial court's decision to uphold or dissolve the injunction will be not be reversed absent an abuse of discretion. 252 Ill. App. 3d at 946, 626 N.E.2d at 1065. Here, the trial court found plaintiff had a clearly ascertainable right in need of protection, namely the rights of citizens of Sangamon County and nearby residents to be afforded the protections and procedural rights of the Act; irreparable harm would result if an injunction did not issue; no adequate remedy at law or in equity existed; and plaintiff showed a fair question it would succeed on the merits. The issue raised in defendant's motion to vacate was whether a fair question existed that plaintiff would succeed on the merits in claiming defendant was constructing a new livestock-management facility as defined in the Act. imposes certain requirements on new facilities. - 6 The Act Patrick,

Any new facility

must comply with certain setback requirements (510 ILCS 77/35(c) (West 2006)), have the proposal subjected to public notice and informational meetings (510 ILCS 77/12 (West 2006)), and adhere to construction restrictions and siting prohibitions (510 ILCS 77/13(b) (West 2006)). The issue of whether defendant's proposal constitutes a new facility or simply the expansion of an existing one depends on the definition of "new facility" as set forth in the Act. "'New facility' means a livestock[-]management facility or a livestock waste[-]handling facility the construction or expansion of which is commenced on or after the effective date of this Act [May 21, 1996]. Ex-

panding a facility where the fixed capital cost of the new components constructed within a 2-year period does not exceed 50% of the fixed capital cost of a comparable entirely new facility shall not be deemed a new facility as used in this Act." (West 2006). At the time of the lawsuit, defendant's farm property included a dairy-cow operation. A "'[l]ivestock[-]management 510 ILCS 77/10.45

facility' means any animal feeding operation, livestock shelter, or on-farm milking and accompanying milk-handling area." ILCS 77/10.30 (West 2006). 510

Plaintiff does not argue the dairy-

cow operation does not constitute a livestock-management facil- 7 -

ity.

Instead, plaintiff claims defendant proposed to construct a Defendant's facility had at one time

new facility for the hogs.

utilized a hog-confinement building and pit with over 2,000 hogs. By 1999, the hog-confinement building had outlived its useful life, and it was demolished in 2004 to make way for a replacement. Defendant proposed construction of the replacement build-

ing in 2006. The evidence before the trial court on the motion to vacate indicates defendant's proposed construction did not constitute a "new" facility. existed. Instead, the facility already

Whether considering the dairy-cow operation alone, or

together with the dormant hog operation, a livestock-management facility was then operating. This is not a situation where an

applicant proposed to build "an entirely new facility," as queried in the Department's application form, and construct that facility from the ground up on a barren piece of land. Plaintiff argues defendant is proposing a new facility, not simply spreading out his existing dairy operation. However,

defendant sought to build a structure to house hogs on top of a waste-storage containment area at the site where a similar structure had been demolished. Moreover, the Act does not

differentiate among species in defining new facilities or livestock-management facilities, referring only to "animals" or "livestock." Goetsch, the Department's bureau chief of environ-

mental programs, pointed out the Act is "species neutral." Nowhere in the Act can plaintiff show that introducing, or - 8 -

reintroducing, as is the case here, a new or different species at a facility constitutes the establishment of a new facility. Further, the Act does not consider the number of animals present or being added to a facility in determining whether a facility is new. Plaintiff's claim that different facilities would result--

that being an animal feeding operation and the other a milking operation--fails to recognize that cows are fed to produce milk. Here, the facility was not new, in terms of infancy, but was the expansion of an existing operation. An expansion could still be deemed a "new facility" if certain amounts are expended as stated in the Act. "Expanding a

facility where the fixed capital cost of the new components constructed within a 2-year period does not exceed 50% of the fixed capital cost of a comparable entirely new facility shall not be deemed a new facility as used in this Act." 77/10.45 (West 2006). In the case sub judice, Goetsch found a review of defendant's application indicated a plan for the expansion of an existing facility. Based on defendant's cost projections, the 510 ILCS

proposed project came in slightly below 41% of the fixed capital cost of replacing the entire existing facility. Thus, the

expansion project did not meet the definition of "new facility" since the costs did not exceed 50% of the cost of a comparable entirely new facility. We note the General Assembly found the current trend in the livestock industry was "for larger concentration of animals - 9 -

at a livestock[-]management facility due to various market forces." 510 ILCS 77/5(a)(4) (West 2006). With an increasing

number of animals comes the "potential for greater impacts on the immediate area." 510 ILCS 77/5(a)(6) (West 2006). "[T]he

purpose of the Act is twofold: to promote the livestock industry and to make sure that the livestock industry is a good neighbor to nearby residents." Nickels v. Burnett, 343 Ill. App. 3d 654,

660, 798 N.E.2d 817, 823-24 (2003); see also 510 ILCS 77/5(b) (West 2006). Although plaintiff no doubt has valid concerns

about the arrival of 3,750 hogs in the neighborhood, the facts in this case do not establish the construction of a new facility as defined by the Act. In arguing a new facility was being con-

structed, plaintiff's contentions regarding the different species involved here and the increased number of animals on-site are not covered in the Act and are matters better suited for the General Assembly in determining the restrictions and requirements for the construction of new facilities and the expansion of existing ones. As defendant's proposal does not show the construction of

a new facility, the trial court erred in denying the motion to vacate. solved. Accordingly, the preliminary injunction must be disWe make no determination as to the merits of any current

or future issues before the trial court. III. CONCLUSION For the reasons stated, we reverse the trial court's judgment and remand for further proceedings. Reversed and remanded. - 10 -

APPLETON, P.J., concurs. COOK, J., dissents.

- 11 -

JUSTICE COOK, dissenting: I respectfully dissent and would affirm the trial court's decision. A motion to vacate a preliminary injunction, which the majority wishes to allow, requires a defendant to prove that the plaintiff presents no "fair question" as to the legal rights involved. People ex rel. Stoney Island Church of Christ v.

Mannings, 156 Ill. App. 3d 356, 362, 509 N.E.2d 572, 576 (1987). Defendant has not met this standard. The majority's order turns on Department manager Goetsch's deposition and attached Department documentation, submitted subsequent to the trial court's granting of the injunction, indicating that defendant's proposed construction is not a "new" facility. The Act defines a "new" facility as follows: "[A] livestock[-]management facility or a live-stock waste[-]handling facility the construction or expansion of which is commenced on or after the effective date of this Act. Expanding a facility where the fixed

capital cost of the new components constructed within a 2-year period does not exceed 50% of the fixed capital cost of a comparable entirely new facility shall not be deemed a new facility as used in this Act." 510 ILCS 77/10.45 (West 2006). Goetsch stated in his deposition that defendant's project consti- 12 -

tuted an "expansion," the cost of which was only 41% of the cost to complete an entirely new structure. The notice and processing requirements differ greatly depending on whether the proposed construction qualifies as a "new" facility. Section 11(a) and section 12 of the Act control

the notice and processing requirements for an owner's application to construct a "new" facility serving 1,000 or more animal units (or a facility that utilizes a lagoon). (West 2006). 510 ILCS 77/11(a), 12

One thousand animal units equals about 714 milking 510 ILCS

dairy cows or 2,500 swine weighing over 55 pounds. 77/10.10 (West 2006).

Under section 11(a), the owner of any

proposed facility, regardless of whether it is "new," must file a notice of intent to construct with the Department and include information regarding setback requirements (for a "new" facility) or maximum feasible location requirements (for a facility that is not "new"). 510 ILCS 77/11(a) (West 2006). Then, under section

12, the Department sends a copy of the notice form that was filed under section 11(a) to the local county board, which will in turn publish notice of the proposed new facility, essentially inviting public comment during a 30-day review period. (West 2006). 510 ILCS 77/12(a)

The county board, or 75 county residents, may

request that the Department hold an informational hearing where the owner attends and answers questions. 2006). 510 ILCS 77/12(a) (West

The county board then submits a nonbinding recommendation

to the Department containing a statement as to whether the proposed facility achieves the eight siting criteria outlined in - 13 -

subsection 12(d).

510 ILCS 77/12(d) (West 2006).

Among the most

relevant siting criteria are whether (1) the design, location, and proposed operation will protect the environment by being consistent with this Act; (2) the facility is located within a 100-year floodplain or otherwise environmentally sensitive area and the construction plans are consistent with the goal of protecting the safety of the area; (3) the owner has submitted plans for operation that minimize the likelihood of any environmental damage to the surrounding area from spills, runoff, and leaching; (4) the construction or modification of a new facility is consistent with existing or projected community growth as they pertain to applicable zoning and setback requirements for populated areas as defined by this Act; (5) the location minimizes any incompatibility with the surrounding area's character; and (6) odor control plans are reasonable. (West 2006). In our case, the Department followed section 11(b) in processing defendant's application to construct, rather than section 12, because the Department was operating under the assumption that defendant's project was not a "new" facility. Section 11(b) applies to proposed construction projects that are not subject to section 12 (i.e., they are not "new" and they do not utilize a lagoon). The section 11(b) requirements are less See 510 ILCS 77/12(d)

strenuous than those in section 12; they require only that the construction plans and design specifications of the proposed structure be filed with the Department within 10 calendar days of - 14 -

the anticipated dates of construction and that the Department review the documents to determine if all information has been submitted or if clarification is needed. 2006). 510 ILCS 77/11(b) (West

The Department then has 15 calendar days within receipt

of the owner's notice to notify the owner that construction may begin or that clarification is needed. 2006). In addition to the more strenuous notice and processing requirements placed on "new" facilities as described in section 12, "new" facilities also are subject to additional setback (510 ILCS 77/35(c) (West 2006)) and design requirements concerning flood protection and other environmentally sensitive areas (510 ILCS 77/13(b) (West 2006)). Another way of looking at the 510 ILCS 77/11(b) (West

question posed by the plaintiff here is not necessarily whether defendant's project constitutes a "new" facility, but whether it is the sort of project that legislature intended to be subjected to more strenuous notice, processing, and setback requirements as described above. We find M.I.G. Investments, Inc. v. Environmental Protection Agency, 122 Ill. 2d 392, 523 N.E.2d 1 (1988), to be instructive. In M.I.G., the owner of a waste-disposal landfill

sought a permit to increase the landfill's maximum elevation. The owner argued that the vertical expansion of an existing pollution-control facility did not constitute a "new" facility under section 3(x)(2). M.I.G., 122 Ill. 2d at 395-96, 523 N.E.2d

at 2, citing Ill. Rev. Stat. 1985, ch. 111 1/2, par. 1003(x)(2). - 15 -

Section 3(x)(2) defined a "'new regional pollution[-]control facility'" as "'the area of expansion beyond the boundary of a currently permitted regional pollution[-]control facility.'" M.I.G., 122 Ill. 2d at 395, 523 N.E.2d at 2, quoting Ill. Rev. Stat. 1985, ch. 111 1/2, par. 1003(x)(2). Traditionally "expan-

sions" and "boundaries" under section 3(x)(2) had been assumed to be horizontal, not vertical. M.I.G., 122 Ill. 2d at 396, 523

N.E.2d at 2; see also M.I.G. Investments, Inc. v. Environmental Protection Agency, 151 Ill. App. 3d 488, 495, 502 N.E.2d 1042, 1046 (1987) (as many as 125 permits had been issued by the agency for vertical expansion without triggering the more strenuous review process that accompanied "expansions" under 3(x)(2)). the vertical expansion did not qualify the landfill as a "new" facility, the proposed project would not trigger new siting and hearing requirements under the Illinois Environmental Protection Act (Environmental Act) (415 ILCS 5/1 through 58.7 (West 2006)). Criteria set forth in section 39.2 of the Environmental Act, among other things, required that (1) the waste facility be designed and operated so as to protect the public health and safety; (2) be located so as to minimize incompatibility with the character of the surrounding area; (3) be located outside the boundary of the 100-year flood plain or that the site be floodproofed; (4) the plan of operations be designed to minimize danger to the surrounding area in terms of fire, spills, or other operational accidents; and (5) traffic plans be designed to minimize the impact on existing traffic flows. - 16 M.I.G., 122 Ill. If

2d at 398-99, 523 N.E.2d at 4, citing Ill. Rev. Stat. 1985, ch. 111 1/2, par. 1039.2(a). The court held that although expansion

of a facility had historically been determined by lateral limitations, vertical expansion should also trigger the "new pollution[-]control facility" siting and hearing requirements. M.I.G., 122 Ill. 2d at 399-400, 523 N.E.2d at 4. reasoned: "To expand the boundaries of a landfill, whether vertically or laterally, in effect, increases its capacity to accept and dispose of waste. An increase in the amount of waste The court

contained in a facility will surely have an impact on the criteria set out in section 39.2(a), which local governmental authorities are to consider in assessing the propriety of establishing a new pollution[-]control facility. Indeed, adjusting the dimensions of a

landfill facility to increase the amount of waste stored will surely have an impact on 'the danger to the surrounding area from fire, spills, or other operational accidents' and 'the character of the surrounding area.' [Citation.]" M.I.G., 122 Ill. 2d at 401, 523 N.E.2d at 5. Allowing defendant's proposed project to bypass all the notice, processing, and siting requirements set in place by - 17 -

sections 12, 35(c), and 13(b) would be inconsistent with the purposes of the Environmental Act. The Illinois Pollution

Control Board set forth some of the first regulations concerning the health and safety impacts of livestock-management facilities in 1978. See 35 Ill. Adm. Code

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