*1 414
Since opinion this could be helpful trial court did not jury abuse its discretion allowing to give Hracek it.
Even if we were to hold that Hracek’s testimony erroneously admitted, the error not prejudicial case. plaintiff’s Plaintiff not met his burden of showing that evidence affected the result Absent court. such a showing, error does not reversal. require Builders, Svenson v. Miller 75, 86, 3d 392 App. see Kyowski Burns N.E.2d
Plaintiff’s other contentions on rest on determination favor- appeal able to plaintiff on one of the issues. we against plain- above Since hold tiff on issues, those we need not arguments. address his other
Affirmed.
SEIDENFELD, P.J., HOPE, J., concur. PROCESSING, INC., al., Plaintiffs-Appellants Cross-Ap PIONEER et pellees, AGENCY, v. THE Defendant ENVIRONMENTAL PROTECTION
Appellee Cross-Appellant. Fourth District No. 4 — 82—0205 4, 1983. Opinion 28, 1982. Rehearing February filed denied December *2 dissenting in TRAPP, J., part. concurring Immel, Zelle, Immel, K. Burditt & and Lee both Thomas J. Springfield, appellants. Zimmer, Fahner, General, (A.L. As- Attorney Springfield
Tyrone C. *3 General, counsel), appellee. of for Attorney sistant of MILLS the the court: opinion JUSTICE delivered A hazardous waste case. reverse in part part.
We affirm brought Pioneer This action declaratory judgment is an for of their for a determination Development and Pioneer Processing waste site located of a hazardous rights development continue or- entered a final La The trial court Township, County. Ottawa Salle each 2,1982, party. der on an has been taken appeal March
FACTS 1, 1980, the Illinois Environmental On July plaintiffs applied for development permit the of a Agency (EPA) Protection for issuance tract a 177-acre the of a on disposal construction hazardous waste site of land contained within in La Salle Two tracts of land County. seg- as the 177-acre referred to “well and will be parcel dispute ment” “Naplate segment.” and the along the northern tract segment” lying “well is a 44.2-acre wa 1,000 private
area of off-site feet of several parcel and on of 27.6 acres ter wells. The of area “Naplate consists an segment” village eastern of the site located within lxlz miles of the Naplate. Act,
Pursuant to section of the Environmental Protection 21(g) 225,000 dis population counties of less than no hazardous waste “[i]n *** posal (2) pri site shall be located within 1000 feet of an existing vate existing well source water measured public supply boundary excluding actual active site and existing wells on the private property permit applicant.” 1979, HV-k, Rev. Stat. ch. par. 1021(g). Russell,
According Charles a registered professional engineer and plaintiffs’ consulting engineer, under plan submitted EPA, 1,000-foot the area within the restriction not be used by was plaintiffs of hazardous of- disposal waste but intended for laboratories, buildings, fice parking disposal lots and the nonhazar- 22, 1980, dous waste. EPA On December issued a plain- tiffs allowing development site, and construction of the subsequently plaintiffs’ agency wrote the attorney requesting instruc- tions from on they them use well whether could properly segment area in view of the language statute site within prohibiting 1,000 feet of off-site private expenditures wells. Plaintiffs estimated $8,000,000 on the site and desired clarification of question. On January 22, 1981, the agency responded that it was take unwilling to a position on the issue and would be with proceeding the construction at their own risk. Count II of plaintiffs’ re- complaint quested the court to rights declare its to utilize the segment well un- der section 21(g) the Environmental Protection Act. indicated,
As the Naplate segment which consists an area 27.6 acres is located within IV2 miles of the corporate limits of the village Section Naplate. the Environmental Act Protection provides:
“In population counties of than less no hazardous waste (1) site shall be located within IV2 miles of the corporate 30, 1978, limits as on defined June of any municipal ity approval without the of the governing body munici in an official pality (Ill. action.” Rev. IIIV2, par. Stat. 1021(g).)
This requirement became 1, 1980, effective on January August and and September approached Russell the village board concern- ing their approval of the site’s On 20, 1980, location. October the vil- lage Naplate adopted resolution the approving location the site within IV2 miles the village. This resolution was then sent to the Environmental Protection Agency, and the agency issued later in the day, on On the same
plaintiffs December meeting and re- evening, village Naplate special the board of held the granting approval their site. previous scinded resolution 1981, to January 20, requested the EPA also plaintiffs’ they letter EPA the the opinion village’s that issue an effect of resolution. EPA that question, given On this no would be and replied opinion complaint their risk. In plaintiffs proceed plaintiffs’ that at own relief that im- declaratory they alleged permanent substantial and provements segment would be on the and for a taking place prayed 21(g) of the effect of the action section village’s determination under of the Act. 2, 1982, judgment March the trial court entered its final order
On on the The trial court concluded that section following hearing merits. 1,000 feet of well was 21(g) prohibits disposal private within any prohibited plaintiffs clear on its face and from location the court held segment, of the site within such limit. On the Naplate had approval that could not rescind its consent once had on that au- granted substantially been and relied plaintiffs they substantially changed The trial court found that had thority. in reliance on the resolution. position municipal portion prohibiting Plaintiffs have from order appealed wells, 1,000 feet of off-site and private the use site within plain- finding the defendant has from the court’s cross-appealed village Nap- the consent substantially tiffs relied municipal miles of the boundaries. late to locate the site IV2 I court’s order plaintiffs’ appeal first consider from We 1,000 location of of the site within feet prohibiting any portion argue that the intention of Gen- private an off-site well. Plaintiffs public was to health Assembly passing protect eral section feet the actual 1,000 zone of between safety by and buffer providing urge that They sites an water source. private off-site disposal activity tak- is not affected where safety such a concern for public of hazardous disposal not the actual within the feet is ing place laboratories, buildings, is the location of administrative waste but in- Plaintiffs contend that such an of nonhazardous waste. of the statute be- unambiguous language is clear from the tention aides of con- extrinsic and intrinsic comes even more when apparent the statute argues likewise struction Defendant applied. can be dis- meaning suggesting plain ambiguity, free in section 3(y) contained the definition “site” by engrafting cerned *5 onto section 1111/2, 1003(y)) (Ill. par. of Act Stat. Rev. 21(g). unambiguous is that the statute
We with the trial court agree its finding 1,000-foot disagree but with barrier providing or not hazardous whether includes of area any portion “site” 1,000 are of within feet. disposed wastes first must consider legislature,
In the intent of the courts finding of statute attained. object used and the Words language meaning unless given plain, ordinary accepted should be & As (Peoria Savings Loan legislative do so would defeat intent. Bank 81 Ill. 2d (1980), v. Trust & Savings sociation Jefferson 48, 413 83 Ill. 2d (1980), Potts v. Industrial Com. meaning phrase focus N.E.2d The at bar turns 1285.) site.” “measured from the of the actual active boundary exception with the These words are not defined the Act is written order word “site.” absent from the court’s Notably active.” This lan meaning discussion of the of the words “actual any restrict the otherwise broad indicates to us clear intention to guage commencing to a at the actual definition site measurement con of the result on the basis of our Though area site. we reach this unambiguous on this other point, principles clusion the statute is this lead to statutory ineluctably interpretation. construction issue, in the only in the at “site” is defined phrase Of words left section we are still By engrafting 21(g) Act. definition onto active,” which become modifying superflu with words “actual and statutes, construing if construction is adopted. ous defendant’s so are to the words of the give provision courts consideration all no word or clause is rendered meaningless superfluous Industrial 34 Ill. 2d (County Winnebago v. Com. 258). ejusdum N.E.2d The lends further principle generis support general things to this construction the section. The list of contained the limitation these preceded by within definition site is prohibited areas Not all of the parts be actual active. site lie foot those only parts within the barrier but site which that, are actual and active. section properly interpreted, We believe disposed. refers to areas which hazardous wastes are only of section this conclusion. This section provisions 21(g) reinforce “site,” as also for a and a provides buffer between section, in the limita used first “site” is not part qualified by tion similar to that of the second use of part. legislature’s language “as measured of the actual boundary permit active same (2) language ted site” and the absence of similar in the statute Sav- convinces us Peoria that different were results intended. ings & Loan Association.
We would also Board, note that the Control Pollution charged with the implement promulgation regulations rules in the Act Act, and the hearing of violations complaints of haz terpreted the provisions of this actual applying as section ardous Illinois disposal area. (County La ex rel. Salle Peterlin Its 451.) Environmental Protection Op. 45 Ill. P.C.B. Agency (1982), interpretation is statute. entitled to construing some weight Adams v. Jewel Companies, 336, 348 63 Ill. 2d
Although our enforce- construction to problems cause may tend ment as outer contrasted with a rule from strictly which measures perimeters of pro- we property, are not called to assess or priety pro- wisdom of the limits statute’s interpret to only visions. We interpreted therefore reverse the trial court’s order which section lo- as be 21(g) to prohibiting any site 1,000 cated within feet of an well. public off-site
II We consider next determined correctly whether the trial court section 21(g) of the Protection prohibits Environmental Act village Naplate siting to the withdrawing approval its of the disposal hazardous site limits of the corporate IV2 miles village. inter 21(g)
Section Protection Act provides Environmental alia that must be in counties than population approval less obtained from the a hazardous governing of a when body municipality waste disposal site is within IV2 limits. miles of the corporate decid questions with which confronted necessarily we are ing previous this its issue are whether a ever revoke may municipality and, argue approval, so, if Plaintiffs under what circumstances. hazardous once a to locate granted approval its con site, waste ground such approval may They not rescinded. be alté clusion on exclusis the maxim unis est of construction expressio or classes rius which provides certain that when a statute enumerates ex things, (People of all others. implies enumeration the exclusion rel. Plaintiffs 641.) Moss v. Pate 195 N.E.2d (1964), 271, 30 Ill. 2d also free use suggest since the statute interferes with statute, land a strict in derogation law, the common is a penal 68 (1979), construction should be Co. v. Andrews applied. Penney J.C. Associates, Ill. v. Inc. App. 3d 386 Talent National (1979), Holland 3d 395 N.E.2d App. it is no legislature granted power
While
true that the
to revoke
consent,
given
the fact that
not
does not re
municipality’s
such was
that this
no
quire
power
court conclude
exists. Rules of construction
not rules of
in all
are
law to be
followed
instances but
uniformly
merely
overriding purpose
aids
construction which yield
to find
intention of
all rules of
construction which is
statutory
2d
Ill.
Mining
App.
Freeman Coal
legislature.
Corp. Ruff
145,
Section haz reason, of a withhold, location approval for whatever miles of boundaries site within ardous waste IV2 guided is not grant approval Its or withhold municipality. decision conditions, or unlike of the Act which provisions limitations other applied criteria to be upon municipalities specific counties imposes re if of a new should be location approval given determine 1111/2, par. facility. (Ill. control Rev. Stat. gional pollution intent of the in en legislature that the 1039.) purpose We believe veto municipalities power section was to vest absolute acting that such involving decisions hazardous waste sites and siting over rescind necessary carries with it grant implication power Roeseh-Zeller, (See v. Hollembeak given authorization. previously In the of an 662.) impli absence given cation of such a the wide municipalities latitude power, given official instances where sufficiently impaired approval or inadvertently through mistake fraud.
Ill which a mu prohibits While we do not believe construction withdrawing approval would be consistent with nicipality statute, nevertheless; noted correctly of court purpose the doctrine a munic equitable applied against can be estoppel creating ineq to it from a situation where it be ipality prevent it to what it has done or unjust negate uitable to permit in nu to done. The has been principle equitable estoppel applied be against cases decisions and involving municipal zoning merous v. Board Pollution Control Board as well. Wachta Pollution Control 436, 484; Savings Pioneer (1972), App. 8 3d 289 N.E.2d Trust & 510, 21; County v. Ill. 2d 377 N.E.2d (1978), Bank Cook 71 183, 472; v. Ill. 2d N.E.2d O’Laughlin City Chicago (1976), 65 357 2d Chicago rel. 29 Ill. People Corp. City (1963), ex Interchemical v. 446, 199; v. Evanston 27 Ill. 2d Corp. City (1963), 194 N.E.2d Cos 422 570, 364; 190 Cities Service Co. v. City Oil Des Plaines N.E.2d 157,
(1961),
605;
Ill. 2d
171 N.E.2d
Nott v.
(1960), 18 Ill. 2d
Wolff
362,
809;
Builders,
ex rel.
People
Skokie TownHouse
v. Village
(1959),
183,
Morton Grove
16 Ill. 2d
157 N.E.2d
Fif
teen
North
Fifty
Building
State
Corp. City Chicago
408,
Ill. 2d
“Here, Illinois, State of through Sanitary Water Board, did the act positive sewer issuing permits to Petition ers which induced them to continue their construction project. They, reliance the action of Board, the Water expended substantial sums of money and incurred heavy continuing liabil ities which would be lost should the State now permitted retract what its officials had done. Under these circumstances right and justice that the require public be We estopped. believe this is the correct rule to be applied such cases. [Citations.]” Wachta v. Pollution Control Board 436, 487-88. It was held Pioneer Trust & Savings Bank that a property owner’s reliance on the issuance of a permit to develop tract of land created a right case, vested to its issuance. In that plaintiff was the beneficial of 42 owner acres of land in Elk Grove Township upon which he sought to construct a 132-unit retirement housing project. Prior to plaintiff’s was zoned for property resi- single-family dences and plaintiff applied for rezoning would have allowed him to construct the retirement units. In the zoning board of appeals, on acting plaintiff’s petition rezoning, approved the peti- tion with the condition that enter into plaintiff a restrictive covenant reqúiring the property be used for the construction only of a retire- ment or nursing home. Plaintiff executed this covenant and developed a four-unit prototype 1971 and in 1973 met with an architect to de- for the velop plans construction of the larger The architect complex. applied to the zoning administrator of Cook County for a permit but Later, no response given. the zoning administrator instructed plaintiff get an opinion from the State’s Attorney determine *8 whether construction was under proper existing zoning laws. The was, plaintiff that it when in substance Attorney replied State’s refused because was building permit permit for a applied prop- law. In zoning plaintiff’s in the anticipated change of an then plaintiff classification and rezoned to a more restrictive was erty court in the trial granted an action for mandamus which brought court, People ex quoting and affirmed court. The by supreme Builders, Inc. indicated: rel. TownHouse Skokie “ '*** change position, a where there has been substantial by faith good made obligations or incurrence of expenditures or in reliance building permit a an innocent under party issuance, property such has vested party of its the probability use the prem the construction and he right may complete authorized, of sub irrespective originally the purposes ises for classifications.’ zoning or a zoning change sequent [Cita Cook County Bank Savings Pioneer Trust & tions.]” 522-23, 21, 26. Ill. 2d (1978),71 Oil, a tract of land plaintiff purchased Cities Service from the city and received a gas of a station the construction Plaintiff of the station. development authorizing of Des Plaines zoning ordinances before attempted copies applicable had secure of an out- given copy in fact was he with work and proceeded any gas of a station within location prohibited dated ordinance which ex- $5,373.46 After in construction school, church or theatre. feet of re- had been building permit that his word penses, plaintiff received storage gasoline prohibiting of an ordinance voked because or the- school, church hospital, of a boundary 300 feet of holder, of the permit ruled in favor again atre. The court supreme concluding: not in- the courts do involving public rights
“In matters strictly special under estopped except hold the municipality terpose highly inequitable op- make it circumstances which would rights. such public to enforce pressive [Citation.] in however, party to enable rule is general qualified, the conduct his action was induced the doctrine where voke relief he in the of such officers, and absence where municipal loss and would suffer substantial agents retracting what stultify itself Plaines City Co. v. Des Cities Service Oil
done. [Citations.]” 157, 161, 171 607-08. rule general all in accord with the The cases we have cited are these authorities distinguish stated While defendant seeks above. control, lo- purely a matter of they zoning involve by suggesting concern, a matter of state- regulation cal whereas environmental *9 concern, such seem to be to the arguments contrary spirit wide the Act for local control of the clearly provides section of hazardous waste sites when such site borders siting question concerned within Viz miles. The which we must whether, here, finding is under the facts the trial court’s decide then changed against is the mani- plaintiffs substantially position fest of the evidence. weight raised defend
The issue of substantial reliance was below its Plaintiffs then filed a an ant an amendment to answer. verified if alleged to this affirmative defense in which the vil they swer would have to lage approval, plaintiffs go were allowed to rescind for a modification through by applying anew permitting process from the site. Naplate segment development to exclude permit for the in reapplying certainly The costs of modification no token and evidence was also introduced show expenditure, volve ing placed upon Naplate segment. that several test wells had been relied substantially The trial court’s determination that the resolution to their detriment is entitled deference finding contrary court and its should not be disturbed unless cannot that the trial court’s weight say manifest evidence. We to the evidence in the record. John J. contrary is judgment manifestly Builders, 221, 395 Calnan Co. v. Talsma
IV that this should be issue, appeal As a final the defendant contends an actual con- dismissed action does not present present because all troversy necessary parties. between In Association v. Block Illinois Breeders Gamefowl 529, action was 443, declaratory judgment
75 Ill. 2d 389 N.E.2d the Hu of two sections of brought challenging constitutionality 8, 1975, ch. 701 et (Ill. par. mane Care for Animals Act Rev. Stat. an actual seq.). discussing controversy, requirement court, City Association v. quoting Underground Contractors 371, 298, (1977), 66 Ill. 2d stated: Chicago “ ‘First, Stat. controversy.” (Ill. there must an “actual be Rev. in this context does not 110, 57.1(1).) ch. “Actual” par. in and injury
mean that a must have been committed wrong facts Rather, underlying that the showing flicted. it requires as to re of the case are not moot or so premature, issues propositions the court to on mere abstract quire pass judgment law, legal render an as to advisory give advice opinion, must, therefore, future events. The case present [Citations.] an and definitive de- dispute admitting concrete immediate parties’ termination of the the resolution of which will rights, aid or some thereof. termination of the controversy [Citations.] second, The and somewhat related requirement, controversy.” seeking the declaration must “interested in the
party word, (Il 57.1(1).) Stat. par. Rev. l. “interested” does not mean about or merely having curiosity Rather, a concern for the outcome of the controversy. party claim, seeking possess personal status, relief must or right which is capable dispute affected. being [Citations.] must, therefore, touch the relations stand legal parties who in a position adverse one another.’ Illinois Ga [Citation.]” Breeders (Í979), Association Block 75 Ill. 2d mefowl *10 450-51, 529, 389 N.E.2d 531. this it
In is clear that the are appeal, parties interested and that an controversy Although allegation actual exists. no made that threatening defendant was defendant has prosecution, instructed that they would be at their own risk in proceeding develop ing the facilities at the site. It is that both are apparent parties also interested in the suit to sufficiently present provide an adversarial context questions within which the be in may litigated. plaintiffs’ terest land, derives from their of the their in de ownership interest site, veloping the and their their to com authorization under mence development parcel, of the in the while defendant’s interest litigation stems from to statutory investigate duties violations Environmental 1979, 1111/2, the Protection Act. Ill. Rev. Stat. par. argues
Defendant also that all were necessary parties joined not such that dispose the termination will not litigation completely since village Naplate joined matter the was not as party defendant. Bowl,
In Tri-Mor Inc. v. Ill. Corp. (1977), App. Brunswick 51 743, 941, 3d 366 N.E.2d the that was a rule of general court stated it that equity persons legally all should who are parties be made interested in the beneficially litigation matter of the who subject be by will affected the decree so as to the court to dispose enable case, controversy. that held that a necessary party court was not in a suit to joined right adjoin determine lessee’s to use an ing tract of land for parking space adjoining where tract been
426 conveyed to a to the suit. Simi party party third who was not made 277 3 larly, Clark v. Ill. Village App. (1972), Milan 3d N.E.2d it declare rights was held that in obstruct a suit such canal, joined all parties all adjoining the canal must since parties had a canal adjacent use perpetual easement in the consent was required for its obstruction. A similar situation is Just as in here. Tri-Mor presented land Clark litigation use of the rights declares inter- absent the an Naplate participation village of has awas est in adjacent land conclude that Naplate thus area. We party necessary party to this should have been made suit and feet defendant. The wells claim that with those parties persons the site were merit. These necessary parties, find without we being de- are all rights neither are their identified record nor inwill present termined of this litigation The conclusion action. nowise prejudice them other relief. determination from obtaining dismiss we was a not Naplate require does necessary party rule present requirement suit since an exception joinder of indispensable parties present. appear joined parties
Where not necessary are parties par made before the court those not interest as who have the same fail absent, the ties, and who are the interest of those protect able to Bashore v. join ure to (See not fatal. Mortimore necessary parties is Ill. 317; (1924), Ill. 535, v. Dressler 148 N.E. Cales 152, 362 3d 162; App. 146 N.E. Moore v. McDaniel People Mateyka (1978), ex rel. Carson defend bar, the interests of both 471.) In at the case ant and the to conclude sufficiently similar village Naplate representa efficient interest of actual and will receive nonparties nor court tion. neither the trial We reject defendant’s contention this court jurisdiction over this matter. *11 pro- court reasons, order of the
Ergo, for the foregoing hibiting lying from site plaintiffs any part using the or- feet of reversed, portion an off-site and that is private well approval der finding substantially relied of the village Naplate affirmed. in
Affirmed part; in part. reversed
WEBBER, RJ., concurs. TRAPP, dissenting part:
JUSTICE in concurring part I concur in the determination of the majority village Nap- late was a I necessary party. dissent from the stated conclusion of the that the majority interest of village so coincided with that of the defendant agency upon the issue of the authority village with- draw its consent that there can be an appropriate representation of the village by agency. village acted to revoke its consent shortly af- ter permit was issued. The agency issued its permit to Pioneer and so far as the record discloses has not acted indicated any intent to revoke or modify permit. In such it light, cannot said that the has the agency present same interest or claim as the village.
The records of this court disclose that the village Naplate is a party to an now appeal argued court, submitted which in- cludes the same issue of the revocation of the village’s consent. The ap- plication of the doctrine of in this representation proceeding effectively creates a collateral estoppel which prevents the village having its in court in day appeal. One notes that addition to being omitted as a party action, this declaratory judgment this action brought Sangamon County. village is situated La Salle County, some 100 miles distant. It is doubtful that the most extraordinary diligence on the village could discover the action present for purposes of seek- ing intervention.
I concur as to the other portions the opinion. DAVIS, REVEREND L. R. Plaintiff-Appellant, v. KEYSTONE PRINTING SERVICE, INC., al., et Defendants-Appellees.
Second District No. 8 2 —12 Opinion 30, 1982. filed December