No. 2--96--1060
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
_________________________________________________________________
COMMONWEALTH EDISON COMPANY, ) Appeal from the Circuit Court
) of Du Page County.
Plaintiff-Appellee, )
)
v. ) No. 96--MR--0167
)
THE CITY OF WARRENVILLE, ) Honorable
) Bonnie M. Wheaton,
Defendant-Appellant. ) Judge, Presiding.
_________________________________________________________________
JUSTICE THOMAS delivered the opinion of the court:
The plaintiff, Commonwealth Edison Company (ComEd), brought
this action seeking to enjoin the defendant, the City of
Warrenville (Warrenville), from using its zoning power to halt a
project involving the construction of a new transmission line. The
circuit court of Du Page County held that Warrenville's authority
to halt or regulate the project through its zoning ordinance was
preempted. The court therefore permanently enjoined Warrenville
from interfering with the project. Warrenville appeals.
The record reveals that ComEd is a public utility regulated by
the Illinois Commerce Commission (Commission) under the Public
Utilities Act (220 ILCS 5/1--101 et seq. (West 1994)). ComEd
provides electric service to customers throughout northern Illinois
through the use of an integrated network of several thousand miles
of high-capacity transmission lines operating at voltages of 138
kilovolts (kV) and above. These lines move "bulk power" from the
various sources of supply to the portions of ComEd's service
territory where customer demand exists. The power is eventually
distributed to customers through a distribution system.
On October 18, 1995, pursuant to the Public Utilities Act, the
Commission granted ComEd a certificate of public convenience
authorizing ComEd to construct a new 138-kV transmission line and
substation to meet the growing electric-service needs of the
Wheaton-Warrenville area. The Commission entered its order
granting the certificate after extensive hearings in which
Warrenville participated and opposed the project. The Commission
found that the project was the only means of continuing to provide
reliable electric service to central Du Page County (County) and
that alternatives proposed by Warrenville were not feasible or
reasonable. In part, the plan called for the installation of a
138-kV line to be installed along four miles of the Prairie Path
replacing the existing 34-kV line. The Prairie Path is a hiking
and nature trail used by pedestrians, cyclists, and equestrians.
The County owns the path, but ComEd has a perpetual easement along
it to construct, repair, and operate its towers, poles, lines,
wires, and cables.
In its order, the Commission rejected arguments raised by
Warrenville relating to local land use and specifically stated that
its order was not conditioned on local zoning or permit approval.
Warrenville appealed the Commission's order to this court.
Warrenville also sought to stay the Commission's order pending
appeal. Both the Commission and this court refused to stay the
Commission's order.
After this court denied the request for a stay, ComEd notified
Warrenville on January 18, 1996, that it would begin construction
of the project. Warrenville then informed ComEd that it would not
permit the project to be constructed unless ComEd obtained a
special use permit from Warrenville before beginning construction.
When ComEd began preliminary work on the project on January 25,
1996, Warrenville police arrived on the scene and halted all work.
ComEd subsequently filed this action seeking to enjoin Warrenville
from interfering with the project.
After hearing testimony and the parties' legal arguments, the
trial court found that the legislature had vested the Commission
with the authority to regulate utilities and that Warrenville's
exercise of its zoning authority to regulate or require permits for
the type of construction approved and authorized by the Commission
was preempted. Accordingly, the trial court issued a permanent
injunction prohibiting Warrenville from interfering with the
project. Thereafter, Warrenville appealed the trial court's order.
This court granted Warrenville's motion to stay the trial court's
order pending the outcome of this appeal.
On September 27, 1996, this court decided the first appeal in
this case and in a Rule 23 order affirmed the Commission's order
granting ComEd a certificate to construct the project. County of
Du Page v. Illinois Commerce Commission, No. 2--96--0027 (1996)
(unpublished order under Supreme Court Rule 23). In reaching our
decision in the first appeal, we held, among other things, that the
Commission properly determined that it would not condition granting
the certificate to ComEd on its ability to obtain any unspecified
local permits. In so holding, we found that "any ordinance enacted
by a home-rule unit which effectively regulates a construction
project approved by the Commission after a section 8--406(b)
proceeding is preempted." County of Du Page, slip op. at 45. We
further found that a non-home-rule unit of local government would
be without the power to enact such an ordinance. This court also
noted that it would leave to be addressed in another case the
question of how its analysis would affect the application of
Warrenville's particular zoning ordinance.
In this appeal, Warrenville raises that issue, contending
that its zoning powers were not preempted by the Public Utilities
Act.
The intent of the General Assembly in enacting the Public
Utilities Act is located in section 1--102 (220 ILCS 5/1--102 (West
1994)), which provides in pertinent part:
"The General Assembly finds that the health, welfare and
prosperity of all Illinois citizens require the provision of
adequate, efficient, reliable, environmentally safe and least-
cost public utility services at prices which accurately
reflect the long-term cost of such services and which are
equitable to all citizens. It is therefore declared to be the
policy of the State that public utilities shall continue to be
regulated effectively and comprehensively." 220 ILCS 5/1--102
(West 1994).
To supervise public utilities, the General Assembly created
the Commission. 220 ILCS 5/2--101 (West 1994). The General
Assembly also explained the Commission's duties:
"The Commission shall have general supervision of all
public utilities, except as otherwise provided in this Act,
shall inquire into the management of the business thereof and
shall keep itself informed as to the manner and method in
which the business is conducted. It shall examine those
public utilities and keep informed as to their general
condition, their franchises, capitalization, rates and other
charges, and the manner in which their plants, equipment and
other property owned, leased, controlled or operated are
managed, conducted and operated, not only with respect to the
adequacy, security and accommodation afforded by their service
but also with respect to their compliance with this Act and
any other law, with the orders of the Commission and with the
charter and franchise requirements." 220 ILCS 5/4--101 (West
1994).
Moreover, the Commission has the exclusive responsibility to
"see that the provisions of the Constitution and statutes of
this State affecting public utilities, the enforcement of
which is not specifically vested in some other officer or
tribunal, are enforced and obeyed, and that violations thereof
are promptly prosecuted and penalties due the State therefor
recovered and collected." 220 ILCS 5/4--201 (West 1994).
Among the provisions of the Public Utilities Act which the
Commission is obligated to enforce is section 8--406(b) (220 ILCS
5/8--406(b) (West 1994)). Section 8--406(b) provides that no
public utility shall begin the construction of any new plant,
equipment, property, or facility unless it obtains from the
Commission a certificate of public convenience and necessity. 220
ILCS 5/8--406(b) (West 1994). For its part, the Commission cannot
issue a certificate unless it will promote the public convenience
and necessity. 220 ILCS 5/8--406(b) (West 1994).
It becomes clear, therefore, that the State has "created a
comprehensive scheme for the regulation of public utilities
generally." Kirwin v. Peoples Gas Light & Coke Co., 173 Ill. App.
3d 699, 705 (1988). Since the enactment of the Utilities Act in
1913, the regulation of public utilities generally has been an area
of statewide and not local concern. See City of Geneseo v.
Illinois Northern Utilities Co., 363 Ill. 89, 94-95 (1936); Peoples
Gas Light & Coke Co. v. City of Chicago, 125 Ill. App. 3d 95, 100-
01 (1984). More specifically, the Public Utilities Act vests the
Commission with the responsibility for determining when a
construction project will promote the Act's goal of ensuring
adequate, reliable, efficient, and least-cost electrical service to
the state's citizens.
With this background information in mind, we turn to the issue
at hand: whether Warrenville's zoning ordinance is preempted to
the extent that it interferes with ComEd's project as approved by
the Commission. In Illinois, local governmental bodies (counties
and municipalities) fall into one of two categories: home-rule
units and non-home-rule units. The powers accorded to each are
different. Thus, we will examine separately the power of these two
units to enact ordinances that regulate Commission-approved
construction projects.
We first address the power of home-rule units to enact
ordinances that regulate public utilities. The terms for the grant
of home-rule power are contained in article VII, section 6(a), of
the Illinois Constitution of 1970, which provides:
"Except as limited by this Section, a home rule unit may
exercise any power and perform any function pertaining to its
government and affairs including, but not limited to, the
power to regulate for the protection of the public health,
safety, morals and welfare; to license; to tax; and to incur
debt." Ill. Const. 1970, art. VII, §6(a).
Section 6(m) provides that "[p]owers and functions of home rule
units shall be construed liberally." Ill. Const. 1970, art. VII,
§6(m).
The terms of the grant of home-rule power are broad and
imprecise, leaving to the courts the duty to determine whether a
power exercised by a home-rule unit is within the grant of section
6(a). Ampersand, Inc. v. Finley, 61 Ill. 2d 537, 539-40 (1975);
Kirwin, 173 Ill. App. 3d at 703. Whether the disputed exercise of
local governmental powers falls within the scope of home-rule
powers contemplated by section 6(a) generally depends on whether
the home-rule unit was acting in an area pertaining to its
government and affairs. People Gas Light & Coke Co., 125 Ill. App.
3d at 98.
An ordinance pertains to the government and affairs of a home-
rule unit where it relates to problems that are local in nature
rather than state or national. Village of Bolingbrook v. Citizens
Utilities Co., 158 Ill. 2d 133, 138 (1994). In more difficult
cases where a problem has both local and statewide impact, courts
are to consider the nature and extent of the problem, the units of
government that have the most vital interest in a solution, and the
role traditionally played by local and statewide authorities in
dealing with the problem. Kalodimos v. Village of Morton Grove,
103 Ill. 2d 483, 501 (1984).
If an ordinance enacted by a home-rule unit does not pertain
to that unit's government and affairs, a state statute regarding
that matter will preempt the ordinance. See Village of Dolton ex
rel. Winter v. CSX Transportation, Inc., 196 Ill. App. 3d 564, 570
(1990); Kirwin, 173 Ill. App. 3d at 703-04; McLorn v. City of East
St. Louis, 105 Ill. App. 3d 148, 153-54 (1982). In the context of
state action versus local action, preemption means the end of local
legislative control over a given subject where the legislature has
adopted a scheme of regulation over the same subject. Kirwin, 173
Ill. App. 3d at 703.
In the case at bar, we believe that utility regulation is not
a matter pertaining to local government and affairs. Rather, the
regulation of public utilities is purely a problem of statewide
concern. See Geneseo, 363 Ill. at 95; People Gas Light & Coke Co.,
125 Ill. App. 3d at 100-01. We believe this is even more true
where, as here, the matter concerns the regulation of Commission-
approved activities that affect the transmission of electric power.
As one of our sister states has recognized, "[i]t is rather
difficult to conceive of a subject which more requires uniform
regulation at a high and broad level of authority than the method
of transmission of electric power." In re Public Service Electric
& Gas Co., 35 N.J. 358, 373, 173 A.2d 233, 240 (1961).
Thus, any ordinance that effectively regulates a construction
project approved by the Commission after a section 8--406(b)
proceeding is preempted because it does not pertain to the unit's
government and affairs. To hold otherwise would permit any number
of home-rule units to regulate construction projects that the
Commission has already deemed to be necessary to promote the public
convenience and necessity. The effect would be to eviscerate the
Commission's role as the body responsible for regulating public
utilities and defeat the Public Utilities Act's goal of providing
adequate, reliable, efficient, and least-cost electrical service to
the state's citizens.
We now consider the power of a non-home-rule unit to enact an
ordinance that regulates public utilities. In contrast to the
constitutional provisions applicable to home-rule units, non-home-
rule units are governed by "Dillon's Rule." T&S Signs, Inc. v.
Village of Wadsworth, 261 Ill. App. 3d 1080, 1086 (1994). Dillon's
Rule provides that non-home-rule units possess only those powers
expressly granted to them by the Illinois Constitution or by
statute, powers incident to those expressly granted, and powers
indispensable to the accomplishment of the declared objectives of
the non-home-rule unit. Pesticide Public Policy Foundation v.
Village of Wauconda, 117 Ill. 2d 107, 112 (1987). Non-home-rule
units cannot adopt ordinances under a general grant of power that
infringe upon the spirit of the state law or are repugnant to the
general policy of this state. Village of Mundelein v. Hartnett,
117 Ill. App. 3d 1011, 1015 (1983). The state statute is the
strongest indicator of public policy, and where the legislature
speaks on a subject upon which it has constitutional power to
legislate, the public policy is what the statute passed indicates.
Hartnett, 117 Ill. App. 3d at 1015.
Generally, non-home-rule units possess zoning powers under
section 11, division 13 of the Illinois Municipal Code (65 ILCS
5/11--13--1 et seq. (West 1994)). However, ordinances passed under
these powers that conflict with the spirit and purpose of a state
statute are preempted by the statute. See Hartnett, 117 Ill. App.
3d at 1015. Here, the Public Utilities Act sets forth a
comprehensive scheme whereby the Commission is responsible for
regulating public utilities. Ordinances adopted by non-home-rule
units that regulate public utilities, at least regarding a
utilities activities which have been approved in a section 8--
406(b) proceeding, conflict with this scheme. Thus, non-home-rule
units do not possess the power to adopt or enforce such ordinances.
In summary, the Public Utilities Act preempts enforcement of
ordinances adopted by home-rule units and non-home-rule units that
regulate or effectively regulate public utilities, at least where,
as here, the subject matter involves Commission-approved
construction projects which are intended to facilitate the
transmission of electric service.
The cases cited by Warrenville for the proposition that the
Commission's orders do not preempt a municipality's zoning
ordinance are distinguishable. None of the cases cited by
Warrenville concern the preemptive scope of an order by the
Commission that grants a certificate of public convenience and
necessity pursuant to section 8--406(b) of the Public Utilities
Act. See, e.g., In re Wolf v. Village of Mt. Prospect, 314 Ill.
App. 23 (1942); Village of Bensenville v. Illinois Commerce
Commission, 29 Ill. 2d 601 (1963); Commonwealth Edison Co. v.
County of Lake, 183 Ill. App. 3d 1060 (1989). Village of
Carpentersville v. Pollution Control Board, 135 Ill. 2d 463 (1990),
and Lily Lake Road Defenders v. County of McHenry, 156 Ill. 2d 1
(1993), are additionally distinguishable in that in those cases the
legislature had specifically provided by the particular statute
involved that the municipalities were not preempted, whereas the
Public Utilities Act does not contain a similar provision. Compare
415 ILCS 5/1 et seq. (West 1994) with 220 ILCS 5/1--101 et seq.
(West 1994).
Lastly, we note that Warrenville erroneously argues that our
decision would render meaningless section 5--12001 of the Counties
Code (55 ILCS 5/5--12001 (West 1994)) and section 110--15(c) of the
Township Code (60 ILCS 1/110--15(c) (West 1994)). Those statutory
provisions simply place additional restrictions on counties and
townships beyond the scope of projects authorized by the Commission
pursuant to a certificate of public convenience and necessity.
For the foregoing reasons, the judgment of the circuit court
of Du Page County is affirmed.
Affirmed.
DOYLE and COLWELL, JJ., concur.