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siting criteria was against the manifest weight of the
evidence. The Board also hears challenges to the
local government’s jurisdiction based on whether the
siting applicant met various notice requirements of
the Act. The Board’s fi nal decision is then reviewable
by the appellate court.
In FY08, the courts continued their review of “Town
and Country II,” one of a pair of cases which had
generated court opinions in FY07 and FY08. The
rulings of the Third District Appellate Court and the
Illinois Supreme Court in “Town and Country II” from
FY08 are discussed below.
County of Kankakee, Illinois, Edward D.
Smith, Kankakee County State’s Attorney,
Byron Sandburg and Waste Management
of Illinois, Inc v. Illinois Pollution Control
Board, City of Kankakee, Illinois, Kankakee
Regional Landfi ll, LLC and Town & Country
Utilities, Inc., Nos. 3-04-02713-04-02853-
04-0289 (cons.) (3rd Dist. Apr. 24, 2008)
(affi rming Board’s order affi rming grant
of siting approval in PCB 04-33, 34, 35
(Mar. 18, 2004)
In an April 24, 2008 unpublished order, under Su-preme
Court Rule 23 (166 Ill. Ed. R.23), the Third
District reconsidered its November 17, 2006 decision
reversing the Board’s decision in County of Kanka-kee,
Illinois, Edward D. Smith, Kankakee County
State’s Attorney, Byron Sandburg and Waste Man-agement
of Illinois, Inc v. Illinois Pollution Control
Board, City of Kankakee, Illinois, Kankakee Regional
Landfi ll, LLC and Town & Country Utilities, Inc., Nos.
3-04-02713-04-02853-04-0289 (cons.) (3rd Dist.
Nov. 17, 2006) (hereinafter “Town and Country II” (Third
Dist. 2006)). In the April 24, 2008 ruling, the Third
District found that the Board had correctly affi rmed
the City of Kankakee’s grant of siting approval to
the 2003 application made by Town and Country
Utilities, Inc. and Kankakee Regional Landfi ll, L.L.C.
(T&C) in County of Kankakee, Illinois, Edward D.
Smith, Kankakee County State’s Attorney, Byron
Sandburg and Waste Management of Illinois, Inc v.
Illinois Pollution Control Board, City of Kankakee,
Illinois, Kankakee Regional Landfi ll, LLC and Town
& Country Utilities, Inc., Nos. 3-04-02713-04-02853-
04-0289 (cons.) (3rd Dist. Apr. 24, 2008) (hereinafter
“Town and Country II (Third Dist. 2008)”). The Board
decision which was the subject of the appeal is Byron
Sandberg v. City of Kankakee, Illinois, The City of
Kankakee, Illinois City Council, Town and Country
Utilities, Inc. and Kankakee Regional Landfi ll, L.L.C.;
Waste Management of Illinois v. City of Kankakee,
Illinois, City Council, Town and Country Utilities, Inc.
and Kankakee Regional Landfi ll, L.L.C.; County of
Kankakee and Edward D. Smith, States Attorney
of Kankakee County v. City of Kankakee, Illinois,
The City of Kankakee, Illinois City Council, Town
and Country Utilities, Inc. and Kankakee Regional
Landfi ll, L.L.C., PCB 04-33, PCB 04-34, PCB 04-35
(cons.) (Mar. 18, 2004).
The Town and Country II (Third Dist. 2008) Rule
23 order affi rmed the Board’s decision on a single
ground: the 2002 and 2003 siting applications were
not “substantially the same,” so the latter application
was not barred by Section 39.2(m) of the Act. The
Third District did not address other appeal grounds
that were raised by the appellants (e.g., compliance
with siting criteria, fundamental fairness).
Board Order
The Board held that Section 39.2(m) did not bar
T&C’s 2003 application. Section 39.2(m) of the Act
provides that:
An Applicant may not fi le a request for local sit-ing
approval which is substantially the same as
a request which was disapproved pursuant to a
fi nding against the Applicant under any criteria (i)
through (ix) of subsection (a) of this Section within
the preceding two years. 415 ILCS 5/39.2(m).
The Board found that because the Kankakee City
Council had never “disapproved” the 2002 applica-tion,
the Board’s reversal of the City Council in Town
& Country I was not “disapproval” within the meaning
of Section 39.2(m). The Board stated “[t]he Board’s
authority is limited to reviewing a local siting author-ity’s
decision, but not actually approving or disapprov-ing
the siting application.” Because the Board found
that the Section 39.2(m) prohibition was inapplicable,
the Board stated that it “need not address the parties’
arguments regarding whether the 2003 application is
substantially the same as the 2002 application.”
Court Decision
Town & Country and the Board petitioned the Third
District for rehearing of its 2006 order in which the
court had reversed the Board’s decision to grant
siting (for more detail on the court’s 2006 decision
see the Board’s FY07 annual report). The petition
for rehearing asserted that the Third District erred
by giving no deference at all to the Board’s statutory
interpretation of Section 39.2(m). The Third District
granted the petition for rehearing “to address the
standard of review.” Town and Country II (3rd Dist.
2006), slip op. at 8.
The Third District stated that “under the appropriate
standard of review, the decision of the Board was
not against the manifest weight of the evidence” and