Save Our Sandy v. Dep't of Agric.

56 N.E.3d 584

404 Ill.Dec. 600

SAVE OUR SANDY, an Unincorporated Association, Plaintiff–Appellant

v.The DEPARTMENT OF AGRICULTURE; Philip Nelson, as Acting Director of Agriculture; VMC Management Corporation; and Sandy Creek Lane LLC, Defendants–Appellees.

No. 4–15–0582.

Appellate Court of Illinois, Fourth District.

June 30, 2016.

Elizabeth J. Hubertz and Austin M. Moore, law student (argued), both of Washington University School of Law, of St. Louis, Missouri, for appellant.

Lisa Madigan, Attorney General, of Chicago (Carolyn E. Shapiro, Solicitor General, and Robert L. Fanning and Christina T. Hansen, Assistant Attorneys General, of counsel), for appellees Department of Agriculture and Philip Nelson.

Donald W. Manning, of McGreevy Williams, P.C., of Rockford, for appellees VMC Management Corporation and Sandy Creek Lane LLC.

OPINION

Justice HOLDER WHITE delivered the judgment of the court, with opinion.

¶ 1 In early 2014, defendants VMC Management Corporation and Sandy Creek Lane LLC (collectively VMC) filed a “Notice of Intent to Construct” with the Illinois Department of Agriculture (Department). The notice proposed the construction of a hog farm with 3,384 animal units. In April 2014, at the request of Marshall County, the Department held a public informational meeting regarding the proposed hog farm. In October 2014, the Department determined the proposed hog farm “more likely than not” met the requirements of the Livestock Management Facilities Act (Livestock Act or Act) (510 ILCS 77/1 to 999 (West 2014)). In February 2015, plaintiff, Save Our Sandy, filed a petition for certiorari, seeking review of the Department's decision. The Department and VMC filed separate motions to dismiss pursuant to section 2–619(a)(9) of the Code of Civil Procedure (Code) (735 ILCS 5/2–619(a)(9) (West 2014)). The trial court granted the motions to dismiss, finding plaintiff did not have standing to seek review of the Department's decision because plaintiff was not a party of record in the administrative proceedings.

¶ 2 Plaintiff appeals, arguing standing requires only some injury to a legally cognizable interest, a standard which plaintiff has met. Specifically, plaintiff argues it need not be a party of record in the administrative proceedings to assert standing. Alternatively, plaintiff argues some of its members were parties of record to the administrative proceeding and therefore have standing. We disagree.

¶ 3 I. BACKGROUND

¶ 4 In February 2014, VMC filed a “Notice of Intent to Construct” with the Department. The notice proposed the construction of a hog farm with 3,384 animal units in Marshall County. The application also contained the names and addresses of residents who were within the setback limits contained within the Livestock Act. In April 2014, at the request of Marshall County, the Department held a public informational meeting regarding the proposed hog farm. Some members of Save Our Sandy testified and presented written evidence at the informational meeting.

¶ 5 In October 2014, the Department determined the proposed hog farm “more likely than not” met the requirements of the Livestock Act (510 ILCS 77/12.1(a) (West 2014)). In November 2014, plaintiff filed a petition for reconsideration, asking the Department to reconsider its approval of VMC's notice of intent to construct. In January 2015, the Department denied the petition, finding plaintiff, as a nonparty, did not have standing to seek stay or reconsideration under the applicable administrative regulations.

¶ 6 In February 2015, plaintiff, Save Our Sandy, filed a petition for certiorari, seeking review of the Department's determination the proposed hog farm “more likely than not” met the provisions of the Livestock Act. The Department and VMC filed separate motions to dismiss pursuant to section 2–619(a)(9) of the Code (735 ILCS 5/2–619(a)(9) (West 2014)), arguing plaintiff did not have standing to seek administrative review. In July 2015, the trial court granted the motions to dismiss.

¶ 7 This appeal followed.

¶ 8 II. ANALYSIS

¶ 9 Plaintiff appeals, arguing the trial court erred in granting the motions to dismiss. Defendants argue plaintiff does not have standing to seek review because it was not a party to the administrative proceeding. Plaintiff contends the “party” requirement is limited to review under the Administrative Review Law (735 ILCS 5/3–101 to 3–113 (West 2014)). Plaintiff argues it has suffered an injury to a legally cognizable interest and nothing more is required to show standing for a petition for a writ of certiorari.

¶ 10 “A common law writ of certiorari is a general method for obtaining circuit court review of administrative actions when the act conferring power on the agency does not expressly adopt the Administrative Review Law and provides for no other form of review.” Hanrahan v. Williams, 174 Ill.2d 268, 272, 220 Ill.Dec. 339, 673 N.E.2d 251, 253 (1996). The Livestock Act neither adopts the procedures set forth in the Administrative Review Law nor limits review; therefore judicial review may be obtained by a writ of certiorari. 510 ILCS 77/1 to 999 (West 2014). See Helping Others Maintain Environmental Standards v. Bos, 406 Ill.App.3d 669, 681, 346 Ill.Dec. 789, 941 N.E.2d 347, 360 (2010) (hereinafter Helping Others ).

¶ 11 “Under Illinois law, a lack of standing is an affirmative defense, and thus the defendants bear the burden to plead and prove a lack of standing.” Sierra Club v. Office of Mines & Minerals, 2015 IL App (4th) 140405, ¶ 22, 390 Ill.Dec. 798, 29 N.E.3d 1068. Accordingly, VMC and the Department raised the standing issue in their respective motions to dismiss under section 2–619(a)(9) of the Code (735 ILCS 5/2–619(a)(9) (West 2014)). With a section 2–619 motion to dismiss, we view all well-pleaded facts, together with reasonable inferences drawn from the facts, as true. Sierra Club, 2015 IL App (4th) 140405, ¶ 23, 390 Ill.Dec. 798, 29 N.E.3d 1068. We interpret all the pleadings and supporting documents in the light most favorable to the nonmoving party. Id. Our review of a section 2–619 motion to dismiss is de novo. Id.

¶ 12 We first consider the provisions of the Livestock Act and the relevant administrative regulations.

¶ 13 A. The Livestock Management Facilities Act

¶ 14 The Livestock Act governs the procedures and standards for Department oversight of the construction of livestock production facilities. 510 ILCS 77/1 to 999 (West 2014). The purpose of the Act is to ensure Illinois maintains an economically viable livestock industry while also protecting the environment. 510 ILCS 77/5(b) (West 2014). The Act requires an owner or operator to file a “notice of intent to construct” a livestock facility with the Department prior to construction. 510 ILCS 77/11(a) (West 2014). When the Department receives a notice of intent to construct a facility such as the one at issue in this case (i.e., a facility with more than 1,000 animal units), the Department must send the notice to the appropriate county board and publish public notice in a newspaper within the county. 510 ILCS 77/12(a) (West 2014).

¶ 15 The county board may request an “informational meeting” at its discretion, or the county board can be compelled to request one when petitioned to do so by 75 or more county residents. 510 ILCS 77/12(a) (West 2014). The Act requires notice to the public of the informational meeting. Following the informational meeting, the county board must submit “an advisory, non-binding recommendation” as to whether the livestock facility meets the sitting criteria. 510 ILCS 77/12(b) (West 2014). The relevant administrative regulation requires the Department to allow members of the public to ask questions and present oral or written comments concerning the proposed livestock facility. 8 Ill. Adm. Code 900.405(d) (2003). Following the informational meeting, receipt of the county board's recommendation, and any further information necessary, the Department issues a final determination as to whether the proposed livestock facility “more likely than not” meets the requirements of the Livestock Act. 510 ILCS 77/12.1(a) (West 2014). The relevant administrative regulation provides the procedure for stay or reconsideration of any final determination “shall be as provided for in the Department's administrative rules.” 8 Ill. Adm. Code 900.407(f) (2003). In turn, the germane regulation governing petitions for reconsideration provides, “[t]he respondent in any contested case may request reconsideration.” 8 Ill. Adm. Code 1.114 (1992).

¶ 16 The Livestock Act also prescribes setbacks, which, in pertinent part, dictate the distance a livestock facility must be from (1) a populated area, and (2) an occupied residence. 510 ILCS 77/35(c)(4) (West 2014). Populated area is defined as “any area where at least 10 inhabited non-farm residences are located or where at least 50 persons frequent a common place of assembly or a non-farm business at least once per week.” 510 ILCS 77/10.60 (West 2014).

¶ 17 One resident lived within the “occupied residence” setback distance of 1,760 feet, and he waived the setback distance. Some members of Save Our Sandy lived within the “populated area” setback distance. Plaintiff contends this “populated area” setback gave them the right to notice of construction and, therefore, made them parties to the administrative proceedings. We address this argument below.

¶ 18 B. Standing

¶ 19 Plaintiff asserts it need not have been a party to the administrative proceedings in order to have standing to seek administrative review in the circuit court. According to plaintiff, the “party” requirement comes solely from the Administrative Review Law, which is inapplicable to proceedings under the Livestock Act.

¶ 20 Plaintiff relies on Greer v. Illinois Housing Development Authority, 122 Ill.2d 462, 492–93, 120 Ill.Dec. 531, 524 N.E.2d 561, 574–75 (1988), in support of its argument that common-law standing requires only some injury in fact to a legally...