dissenting:
The majority insulates a Cook County zoning decision from judicial challenge, even though it is well-settled law that such decisions are historically and statutorily subject to challenge. The majority holds, contrary to precedent, that plaintiffs lack standing because they are municipalities. The majority further holds that the challenge to the Cook County zoning decision is an impermissible collateral attack on a decision of the Illinois Environmental Protection Agency (Agency). The majority fails to recognize the different purposes and concerns implicated by these two separate proceedings. I therefore dissent.
The Illinois Environmental Protection Act (Act), by its very terms, does not control or directly affect the Cook County zoning process. Section 39(c) provides:
"[N]o permit for the development or construction of a new regional pollution control facility may be granted by the Agency unless the applicant submits proof to the Agency that the location of said facility has been approved by the County Board *** in accordance with Section 39.2 of this Act.” (415 ILCS 5/39(c) (West 1992).)
Section 39.2 contains certain factors, environmental and nonenvironmental, that a county board must consider before giving "local siting approval” and indicates the manner of review. As noted by the majority, section 39.2 does not apply to Cook County in this instance. (See 415 ILCS 5/39.2(h) (West 1992).) Cook County is not subject to the procedural requirements for "local siting approval” or the review provisions contained in the Act. Section 39(c) also provides:
"Except for those facilities owned or operated by sanitary districts organized under the Metropolitan Water Reclamation District Act, and except for new regional pollution control facilities governed by Section 39.2, and except for fossil fuel mining facilities, the granting of a permit under this Act shall not relieve the applicant from meeting and securing all necessary zoning approvals from the unit of government having zoning jurisdiction over the proposed facility.” (Emphasis added.) (415 ILCS 5/39(c) (West 1992).)
By its terms, the Act does not constrain the actions of the Cook County board. In fact, it does not apply at all. The Act indicates only that the ordinary rules regarding zoning approval and review of zoning decisions apply in this situation. In the absence of statute or other express legislative intent, common law principles control.
In the ordinary zoning case, a property owner seeks to have his property rezoned by the proper governmental body but is denied. Once denied, the individual may bring a declaratory judgment action in the circuit court to challenge the zoning ordinance. The individual challenging the zoning ordinance bears the burden of proving by clear and convincing evidence that application of the ordinance to his property is unreasonable and arbitrary and bears no substantial relation to public health, safety, morals, or welfare. See, e.g., National Boulevard Bank v. Village of Schaumburg (1980), 83 Ill. 2d 228, 233-34; Tomasek v. City of Des Plaines (1976), 64 Ill. 2d 172, 179-80; La Salle National Bank v. City of Evanston (1974), 57 Ill. 2d 415, 428.
In the Cook County declaratory judgment action, plaintiffs challenge the zoning ordinance adopted by Cook County which granted a special use permit for the construction of the balefill. The common law zoning principles discussed above have been applied to zoning decisions involving landfills and the Act. (See Cosmopolitan National Bank v. County of Cook (1984), 103 Ill. 2d 302.) Although ignored by the majority, the appellate court, in a case involving this same proposed balefill, has previously stated that a declaratory judgment action would be the appropriate manner in which to challenge this Cook County zoning decision. Stark v. Pollution Control Board (1988), 177 Ill. App. 3d 293, 300.
The majority holds that plaintiffs do not have standing to pursue this action because plaintiffs are municipalities. The majority acknowledges that municipalities ordinarily have standing to challenge the zoning decisions of other municipalities. In Village of Barrington Hills v. Village of Hoffman Estates (1980), 81 Ill. 2d 392, Barrington Hills sought to challenge a Hoffman Estates ordinance. The ordinance allowed construction of the Poplar Creek Music Theater in Hoffman Estates. This court held that Barrington Hills had standing to pursue its action contesting the proposed zoning. See also City of Hickory Hills v. Village of Bridgeview (1977), 67 Ill. 2d 399.
In the instant case, however, the majority holds that the municipalities do not have standing to challenge the Cook County zoning decision. The majority states that allowing municipalities to proceed will substantially increase litigation. In Barrington Hills, 81 Ill. 2d at 397-98, this court addressed a similar concern and rejected it:
"Defendants argue that according plaintiffs standing to sue will invite chaos in the relationships between municipalities and flood the courts with zoning litigation. Our holding, however, is not so broad, since it conditions a municipality’s standing to challenge the zoning decisions of other governmental units upon a clear demonstration that it would be substantially, directly and adversely affected in its corporate capacity.”
The foregoing standing requirement is certainly sufficient to limit the number of extraterritorial challenges that are raised. As stated by the appellate court, the allegations of harm made by plaintiffs in this case are nearly identical to those made in Barrington Hills. Under the reasoning of Barrington Hills, plaintiffs have satisfied the standing requirement.
The majority also states that plaintiffs’ challenge to the Cook County zoning decision constitutes an impermissible collateral attack on the Agency’s decision to issue a permit. The majority fails to acknowledge the different objectives underlying the Agency’s permit authority and the county’s zoning responsibility. Although these two proceedings involve some overlapping concerns, they are very different activities and require separate and distinct inquiries.
In granting a development permit, the Agency does not have the authority to select the actual site for the balefill. In fact, the Agency considers only whether the proposed balefill would violate any part of the Act or any environmental regulations. (415 ILCS 5/39(a) (West 1992).) In contrast, when a county board enacts a zoning ordinance in connection with a balefill, the examination is by necessity far broader. Accordingly, when a zoning ordinance is challenged, a reviewing court considers numerous other zoning factors, not just environmental concerns. These factors include: (1) the existing uses and zoning of nearby property; (2) the extent to which property values are adversely affected by the zoning ordinance; (3) the extent to which the ordinance promotes public health, safety, morals, or general welfare; (4) the relative gain to the public compared to the hardship imposed on individual property owners; (5) the suitability of the zoned property for the zoned purposes; (6) the length of time which the property has been vacant as zoned considered in the context of land development in the vicinity; (7) whether a comprehensive zoning plan for land use and development exists; (8) if so, whether the zoning ordinance is consistent with it; and (9) the evidence of community need for the proposed use. La Salle National Bank v. County of Cook (1957), 12 Ill. 2d 40, 46-47; Sinclair Pipe Line Co. v. Village of Richton Park (1960), 19 Ill. 2d 370, 378; see also Cosmopolitan, 103 Ill. 2d at 311.
Significantly, this court has previously noted the distinction between the Agency’s permit authority and the Cook County zoning authority. In Cosmopolitan National Bank v. County of Cook (1984), 103 Ill. 2d 302, as in this case, the plaintiff brought a declaratory judgment action challenging a Cook County zoning ordinance that affected a landfill. The plaintiff planned to develop a sanitary landfill in Cook County and received a permit from the Agency. The plaintiff then asked for a special use permit from the Cook County board but this permit was denied. In upholding the county’s decision to deny a special use permit to the plaintiff, this court stated:
"The decision whether a special-use permit should issue is a question which involves a delicate balancing of public and private interests. [Citation.] When the [Agency] considered this case, it could properly ask whether Sexton was a good operator, whether sanitary landfills in general were acceptable means of filling the public’s need for garbage disposal, and whether Sexton had taken appropriate steps to minimize environmental dangers. Now the focus has shifted. From a zoning standpoint, the question is no longer whether Sexton has minimized the hazards. Even if the circuit judge believes that Sexton has done the best job possible under the circumstances, Sexton, the party seeking the special use, must prove by clear and convincing evidence that the remaining hazards, viewed in terms of the six Cook County special-use standards, do not preclude issuance of a permit for a sanitary landfill at this particular location. In other words, given the known dangers associated with landfills at the current state of the art, is this use compatible with the surrounding uses of the land?” Cosmopolitan, 103 Ill. 2d at 322-23.
As this court has already recognized, a challenge to the Cook County zoning decision is not an impermissible collateral attack on the Agency’s permit decision.
Once standing was shown, the appellate court correctly applied the zoning factors listed above to determine whether the well-pleaded allegations in count III of the Cook County complaint stated a cause of action. Count III alleges that the proposed balefill site is located within the boundaries of Hanover Township and is adjacent to Elgin and Bartlett. Count III further alleges that development of the balefill will lower the groundwater in the area, requiring South Elgin and Hanover Township to drill deeper wells. According to count III, the proposed landfill will also create safety hazards on nearby roads, requiring Elgin and Bartlett to spend additional funds for road repair, maintenance, and law enforcement. In addition, count III alleges that the bale-fill will adversely affect property values in Elgin, Wayne, Bartlett, South Elgin, and Hanover Township and will violate the comprehensive land use plans of Elgin, Bartlett, and Wayne. The proposed amended complaint further alleges that the proposed site will be very close to an Elgin industrial park, an Elgin residential neighborhood, and a Bartlett area that has been approved for the development of residential homes. Under the Act, these allegations of injury would not be considered by the Agency when it issued its permit.
I recognize that count III also contains allegations that, if true, might constitute violations of the Act or environmental regulations. Here, the county board conditioned the special use permit on the environmental expertise of the Agency. Certainly, it is reasonable for the board to rely on the Agency’s environmental determination because the Agency has expertise in that area. Many of the allegations in the complaint, however, if true, do not constitute violations of the Act or environmental regulations. Plaintiffs may be able to prove that the Cook County ordinance (and choice of location for the balefill) is unreasonable and arbitrary, without establishing violations of the Act or environmental regulations.
By giving local government the authority to approve or disapprove proposed balefill sites, the legislature has reasonably indicated that local government and the Agency share some responsibility in this area. (See County of Cook v. John Sexton Contractors Co. (1979), 75 Ill. 2d 494, 516.) The Agency’s authority to grant a permit and Cook County’s zoning authority, however, are "distinct but concurrent powers.” (Sexton, 75 Ill. 2d at 516; see also Village of Carpentersville v. Pollution Control Board (1990), 135 Ill. 2d 463.) Whether a balefill can be constructed and developed at a specific location without violating the Act does not mean that a balefill is consistent with the public health, safety, morals, or welfare of that area. The Act was intended to give local areas input into the development of a balefill. This local input must include the ability of affected communities to challenge the development of the balefill.
The majority appears concerned that neighboring municipalities will vigorously seek to challenge a proposed balefill. The majority, however, fails to recognize that a balefill may significantly impact these neighboring communities. Although plaintiffs are "extraterritorial” municipalities, they are located in close proximity to the proposed balefill and have alleged significant injury. In fact, the proposed balefill site is apparently located within the boundaries of "extraterritorial” plaintiff Hanover Township. At this stage, this court need only decide whether the allegations state a cause of action. Plaintiffs have alleged substantial, direct, and adverse injury, and their allegations in count III clearly state a cause of action. Plaintiffs should absolutely have a right to their day in court. They have properly laid the foundation from which they should be permitted to attempt to prove their case.
JUSTICE McMORROWjoins in this dissent.