dissenting:
I believe that the proper interpretation of the clause in question is that the 14-day requirement relates to the mailing of the registered mail and not to actual receipt (service) of the mail. If the majority was correct in requiring service to be effected more than 14 days prior to the filing of the application, the phrase "fourteen days” ought to be located after the phrase "to be served.” I agree with Ogle County that the phrase "cause to be served” means that the mailing of the letter is the subject of the 14-day requirement because the word "cause” would otherwise have no significance. My interpretation is consistent with the only mention of notice in the legislative debates wherein Senator Demuzio refers to "Notice [not service] provisions to members of the Illinois General Assembly are still embedded in this bill.” 82d Ill. Gen. Assem., Senate Proceedings, May 19, 1981, at 169 (statements of Senator Demuzio).
The receipt for the mailing serves several purposes. The receipt establishes to whom, where, and when the notice was sent and indicates when and by whom it is accepted for delivery. The majority is concerned with the hypothetical issue as to what would result if Pfab and/or Senator Rigney had not received notice. In fact both Pfab and Senator Rigney received notice prior to the filing of the petition which is analogous to a defendant in a civil suit receiving the summons before the complaint has been filed. The majority cites no authority directly on point which establishes such early notice as prejudicial, let alone jurisdictional, and I cannot think of any circumstance that would constitute prejudice in such a time frame or context.
Assuming arguendo that the notice provision required actual service 14 days prior to the filing of the petition, I believe that Carmichael does not have standing to raise the failure to personally "serve” Pfab and Senator Rigney. "Standing, however, requires injury to a legally recognized interest. [Citation.] The plaintiffs] *** do not claim they lacked actual notice *** and, in fact, they participated in the *** hearings before the county board.” The notice and hearing provisions do not create a property right where none previously existed. (See Village of Lake in the Hills v. Laidlaw Waste Systems, Inc. (1986), 143 Ill. App. 3d 285, 293.) Carmichael attempts to assert the rights of others to show standing but makes no attempt to plead or prove any harm to those others’ interests or to his own. Furthermore, I believe Pfab and Senator Rigney have waived any defects relative thereto, Pfab by his general appearance and Senator Rigney by his nonappearance after having received actual notice.
More importantly, Carmichael did not object to the notices at the time the receipts were entered into evidence, and Carmichael himself argued the merits of the siting before the Ogle County board. Having done so, he has waived any and all defects relating to personal jurisdiction. "[A] person cannot, by his voluntary action, invite the court to exercise its jurisdiction and at the same time deny that jurisdiction exists. *** [S]uffice [it] to say that any action taken by the litigant which recognizes the case as in court will amount to a general appearance.” Lord v. Hubert (1957), 12 Ill. 2d 83, 87.
Most important is the majority’s treatment and alteration of an "alleged” defective personal jurisdiction matter subject to waiver into a defective jurisdictional matter not subject to waiver. The majority cites three types of jurisdiction (272 Ill. App. 3d at 192) and then proceeds to equate personal jurisdiction (1) with an agency’s scope of authority under the statute (3). The majority does so by citing cases relating to lack of jurisdiction due to defective publication and then states, "[ajlthough Kane County Defenders, Concerned Boone Citizens, and BFI all involved a failure to comply with the publication requirements, and not the individual notice requirements, of section 39.2(b), nothing in the language of the opinions suggests that their holdings are so limited.” (272 Ill. App. 3d at 192-93.) I submit that considering the facts in those cases, any discussion regarding personal notification requirements would be speculative dicta and that nothing in the language of the opinions suggests that their holdings are so broad! The majority’s rationale seems to be that cases relating only to notice by publication did not include dicta stating, "by the way, if this were a defect in personal service it could be waived.” The majority’s rationale then erroneously determines that since such dicta is not present, the alternative, "it could not be waived,” conclusively follows. (See Kane County Defenders, 139 Ill. App. 3d 588; Concerned Boone Citizens, 144 Ill. App. 3d 334; Browning-Ferris Industries, 162 Ill. App. 3d 801.) The majority’s faulty rationale disregards established law regarding defects in publication which cannot be waived, and defects in personal service which can be waived.
Further evidence of the majority’s misinterpretation is the reference (272 Ill. App. 3d at 193-94) wherein it cites to Taylor Coal Co. v. Industrial Comm’n (1922), 301 Ill. 381. The majority quotes the supreme court’s pronouncement that subject-matter jurisdiction is not subject to waiver and then equates that with defective notice by publication. The majority then reverts to its erroneous equation that defects in personal service are the equivalent of defects in publication. Simply put, the majority has disregarded, and by its opinion destroyed, the distinction between personal service and publication, and the distinction between personal jurisdiction and subject-matter jurisdiction!
Finally, I believe both Pfab and Senator Rigney were constructively served when the letter was placed in the mail as the notice provision effectively states that one shall cause another to be served, by mailing not less than 14 days prior to the filing of the petition. (See Board of Education of North Boone Community Unit School District No. 200 v. Regional Board of School Trustees (1987), 156 Ill. App. 3d 504, 507 (had notice been given by certified or registered mail, then the date of mailing would be controlling).) To interpret the notice provision as the majority has done results in an ironic conclusion never previously reached, i.e., the party to be served can defeat the subject-matter jurisdiction of a tribunal by refusing to accept his mail! Ironically, the majority addresses the issue of constructive service by citing Avdich. The majority sees no reason to distinguish Avdich from the case at bar (272 Ill. App. 3d at 195-96). Neither do I, considering it was a case involving personal jurisdiction, although in Avdich the party to be served did not waive service. The majority herein decides there is no constructive service on the basis that the service was a defect of personal jurisdiction. The majority then decides that this personal jurisdiction, contrary to Avdich, cannot be waived.
In conclusion, there is nothing incongruous in applying waiver to defects in personal jurisdiction nor in determining standing relative thereto. What is incongruous is allowing the PCB to decide defects in personal service can be waived in some instances and not in others (City of Columbia v. County of St. Clair (April 3, 1986), Ill. PCB Nos. 85 — 177, 85 — 220, 85 — 223 cons.; Waste Management of Illinois, Inc. v. Village of Bensenville (August 20, 1989), Ill. PCB 89 — 28), or can engraft its four-day presumed mailing rule onto the notice provisions contained in the statute. It is additionally incongruous for the majority to apply the law regarding defects in publication to factual situations involving personal service and determining a third party has standing to raise these defects.