10/2/07: Damage Control...
Many people spoke tonight on behalf of protecting the two nature areas on our northwest side. Council last week indicated they would unanimously pass an ordinance with a 1/4 mile set-back from residential areas, but with zero foot set-backs for Morton Arboretum and Hidden Lake Forest Preserve- creating exemptions within the ordinance. Additionally, the tollway would exempt any houses directly across that roadway, and municipal property would be exempt. I'm not sure what the implications of that last one might be.
Tonight council, voting unanimously 7-0, passed the ordinance that creates a 1/4 mile set-back separation between facilities that accept construction and demolition debris and any area zoned for residential use. Cameo Condos problem is over, the book is closed. There will be no C&D facility next door to them, or anywhere near them. I can't say for sure, but I think I heard some champagne corks popping over there.
Council also removed the set-back exemptions for Morton Arboretum and Hidden Lake Forest Preserve, ensuring nature gets the same 1/4 mile protections.
Good news for residents, good news for existing businesses, good news for mother nature!
Going into the meeting I did not think there would be the votes to pull the two 'nature exemptions' out. Tully made the motion and specifically read it as without the exemptions for Hidden Lake and Morton Arboretum. There was little discussion, and Council came to the right vote, unanimously. I thanked every council member and the mayor doing the right thing. Now I know there's some transparancy missing there, but the result was far better than I had hoped, and looks very likely to get better with a better definition, so no complaints.
Yes, you can nail me on letting the transparancy thing slide, after all the light I've tried to shine on this issue. Go ahead.
Council also tabled the conflated definition for further work, another good vote for the right reasons; the definition is too broad for it's purpose, and additional state definitions can be easily adopted as needed. What we need right now is a correct definition of a construction and demolition debris facility, and a correct definition of a recycling collection center. The state actually had/has exact definitions for both, and for every other type of recycling activity allowed in Illinois.
The moratorium was extended another 90 days, even more good news. That gives staff plenty of time to come back with solid definitions that have a bedrock rational basis.
So far: residents win, existing business wins, nature wins, council wins (twice because they win as residents too). That's all good.
9/25/07 Impact... Mayor Sandack moved the definition/ordinance/ECC report to first on the agenda, in consideration of all the senior citizens packing the house. And the house was packed. One member of the audience who had also been at the ECC meeting asked me why the report forwarded to the council wasn’t really what the ECC had talked about and approved. Tailoring, I said, just tailoring the information. Some things won’t change so easily, I guess.
I took some shots at what had transpired over the last 9 months, to little effect; but since Friday, when the agenda came out, the main battle appeared won behind the scenes and out of plain view: staff conceded and the full ¼ mile separation was back in, albeit with all of the exemptions. Like I said, it seemed predetermined; it still smelled like the deal was decided before the meeting. Some have said I'm reading too much into it. The seniors and most residents are being protected.
I think I gave them some pause about the conflated definition, and kudos to Tully; he picked up the ‘rational basis’ banner I kept throwing out. Maybe he can explain to staff and council members why the proposed definition is dangerous from a legal perspective. The guy is, after all, a lawyer.
Ms. Tedesco from Morton Arboretum was there and really laid it out so even a 6 year old could understand how bad it would be to strip them of any protection and possibly let a facility that accepts construction and demolition debris locate nearby. Council said they were in favor of keeping all exemptions including Morton.
Resident John Schofield (he and Charlie Smart authored the Neighborhood Construction Watch Handbook, which you should download, read, and keep) also spoke about the exemptions and the inequality of protecting some things but not all things equally. I’ll have to relisten to the podcast, but he was very thoughtful. I wish I could string together thoughts on the fly like that. I hope he helped sway some consideration for Morton.
So, if council makes good on their promise made tonight, the seniors at Cameo Condos will be able to rest easy; their extended nightmare is over. There will be a ¼ mile separation requirement on the books this time next week that protects almost all residents. The Mom brigade left en masse after that segment of the meeting and I followed them out to thank them all for coming and making the difference. They seemed to think I had a lot to do with it, but I think council couldn’t look at their Moms and throw them in front of the bus. I know I'm leaving out the senior men who helped, and spoke out; but you can't beat that image of all those Moms.
The definition is still dangerous, and the exemptions are still there. It looks like the north-siders will have to cross their fingers. A C&D facility could go in across the tollway and wreak hell on their neighborhood. Unless council whacks the tollway exemption too. I don't think that's likely, as they want to leave some open areas where a facility that accepts construction and demolition debris might petition to locate.
Hidden Lake and Morton Arboretum are being left only with the promise that council would still have to approve the "special use' for one to be built next door to them. I wrote Sandack as much, and would be thrilled to see
that change.
I'm hoping the mayor and council will look in their hearts and find a bit of love for the nature areas. If we can convince council and staff to leave Hidden Lake and Morton out of this, protect those nature preserves in our midst from potential harm by removeng those particular exemptions, that’ll be a victory made sweeter now for us, and in the future for our kids.
Next week should be a wrap.
9/25/07 Council workshop meeting... will our local government wake up, grab the wheel, and swerve to avoid running down residents and business? Or do we all get thrown under the bus?
The Plan Commission met on Monday 9/10 and voted unanimously to send a favorable recommendation to council for a definition that equates a facility that accepts construction and demolition debris with a recycling center. The definition conflates the meanings of the two so a facility that accepts construction and demolition debris can say it's a recycling center. Our fill-in Village Attorney did a great job at the end, and sealed the vote with an excellent demeanor. When she finally gets a chance to go to bat for us residents she'll do fine.
Bensenville Screwed up on their definitions, and paid the price. Our government doesn’t just step onto a slippery slope here, they create the slippery slope. Any petition for a facility coming before the Plan Commission and council should be clearly and correctly identified as to what it is. A conflated definition does not allow for that to happen.
The Environmental Concerns Commission met on Thursday 9/13 and said a recycling facility and a facility that accepts construction and demolition debris are two different things because they do two different things. They will send their findings back to the council and ask for more information so they can further discuss the matter.
The staff has brought back another proposed ordinance in addition to the proposed definition.
They all arrive back at council for the same workshop; the ECC report here, the bad proposed definition here, the modified proposed ordinance regulating separation distances here.
A copy of my letter and attachment sent to council and staff...WARNING dense reading ahead...
| Mark Thoman |
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show details
| 8:20 am (21 minutes ago)  | |||||||||||
Here's the attachment:
Does the Village’s definition include construction debris recycling facilities?
No, it does not. The village definition was written 20 years before the identification of construction and demolition debris as a municipal waste stream comprising 25-40% of landfill materials. It has been established by all contributors to the discussion that the current definition is fairly useless.
At present, construction and demolition debris is properly defined as Municipal Waste by the state, and should likewise be defined identically by the village (415 ILCS 5/3.21)
Does the State’s separation distance apply to the Village?
Yes, it does apply.
The villages’ response to date is one of strategy rather than a good faith effort to follow existing state law.
The village has the right to set its’ own requirements for such a facility: that was verified early on by the Illinois Attorney General, and that has never been disputed.
The Attorney General’s Office contacted both the Village Attorney and the EPA at my request. The EPA stated they generally interpret the section to provide that local government can enact ordinances dictating the setback for facilities that accept construction and demolition debris. Downers Grove has not, as of today, done that.
The statute says that unless such requirements for a specific facility that accepts construction and demolition debris exist, the state minimum separation requirement applies. Since we do not have any mention of “construction or demolition debris”, “facilities that accept construction and demolition debris”, and/or “requirements for a facility that accepts construction and demolition debris” in our zoning ordinances, we do not meet the requirements set forth in 415 ILCS 5/22.38.
The fact the proposed ordinance has been resurrected with part of the Plan Commissions approved language stands as proof that the village does understand the requirements of 22.38 and how, in their absence, we default to the state minimum separation requirements. Eliminate the tollway exemption and the ordinance stands without lowering resident protections (but does compromise Morton Arboretum and Hidden Lake, both zoned residential by county).
Are recycling collection facilities subject to the State’s transfer station regulations?
Transfer stations are defined and regulated separately.
Difference between the State’s and Village’s separation requirement.
The ¼ mile separation requirement from where families and people live is due to the type of facility being setback. These facilities emit dust, dirt, odor, diesel soot, noise, pound roads with heavy per axle loads, create rodent problems, and potentially take in contaminated materials without knowledge, all reasons to keep them as far away from homes and families as is practical. As most of the nuisance and potential health hazard is air borne, potentially also in contaminated water run off, and in mobile rodent populations, ¼ mile allows for physical separation regardless of intervening terrain. A tollway or highway does not provide proper separation in lieu of distance.
The villages proposed rounded off separation distance was based on the adult entertainment uses ordinance, a nuisance of another type that is not primarily airborne, and it has no bearing on the separation requirement under discussion.
“The exceptions were maintained with the distance to ensure that the use was not being “zoned out” of the Village.”
It bears repeating that the state statute is not discriminatory, as it applies to all facilities regardless of where they desire to be sited.
“If the Village removes the use or places over-burdensome regulations on the use without additional research and relevant findings, it could leave the Village open to a claim for a regulatory taking.”
Plaintiff would need to establish that the requirements prevent any use of the property, or that the property is already in use and would be unduly restricted. The property is currently unused and is generating no income. Further any requirements under discussion do not restrict all uses of the property, just one specific use. It can still be anything allowed and approved by council.
Reasonable investment backed concerns know the petition will require approval by the Plan Commission and passage by the village council, neither guaranteed, particularly due to its status as a non-conforming special use, and it’s proximity to residents living next door to the planned facility.
In addition, a traffic use study required by Plan Commission and council has never been forthcoming in over 9 months, showing questionable intent by petitioner to proceed at all.
Also, the village would not be removing any use, or creating burdensome regulations, as the regulations are already in existence, in place at the state level, and have been observed since 1997.
Following are relevant findings, highlighted in red;
Oates v. City of Lincoln (3rd Dist. October 24, 2001) 93 Cal.App.4th 25 [112 Cal.Rptr.2d 790].
Mere expectation, not amounting to an option, is not a compensable property right.
In this case involving control of a golf course, the court held that the government entity did not "take" anything from the lessee because "[a] hypothetical future lease resting on the 'probability of renewal', unlike a contractual option to renew an existing lease, is not a compensable property right [citation] because its potential execution rests upon the commercial vagaries of the market, its players and their competitive interests."
The court found critical that the plaintiff had, at most, a mere expectation, which is not a legally enforceable property interest. When there is no such interest, the government entity need not compensate.
“Lucas v. South Carolina Coastal Council
In 1992, the Court decided Lucas v. South Carolina Coastal Council, a critically important regulatory takings case. In Lucas, the landowner had purchased two residential lots in South Carolina, intending to build homes. The State then enacted the Beachfront Management Act, which effectively barred the landowner from erecting any permanent habitable structures on the property. A state trial court, finding that the law had rendered the property valueless, granted the landowner compensation for the taking.
The state supreme court reversed, reasoning that when a law is designed to prevent “harmful or noxious uses” of property akin to public nuisance (such as any use causing harm to the state’s beaches), no compensation is owed, no matter what the law’s effect on the property’s value.64 The United States Supreme Court, in turn, used Lucas to add a new dimension to Takings law – the concept of a “categorical taking.”
The court based its holding in part upon petitioner's failure to explore "any other use for the property, leaving open the possibility that lesser uses of the property might be permitted that would involve less nuisance. Less disruption, and not violate state distance prohibitions 746 A. 2d, at 714.
Since Mahon, we have given some, but not too specific, guidance to courts confronted with deciding whether a particular government action goes too far and effects a regulatory taking. First, we have observed, with certain qualifications that a regulation which denies all economically beneficial or productive use of land will require compensation under the Takings Clause [citing Lucas]. Where a regulation places limitations on land that fall short of eliminating all economically beneficial use, a taking nonetheless may have occurred, depending on a complex of factors including the regulation’s economic effect on the landowner, the extent to which the regulation interferes with reasonable investment-backed expectations, and the character of the government action [citing Penn Central].101121 S. Ct. at 2457.”
Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency "Categorical" Regulatory Takings
Lucas v. South Carolina Coastal Council created a categorical rule that when a regulation "denies all economically beneficial or productive use of land," it automatically effects a taking. (Lucas v. South Carolina Coastal Council (1992) 505 U.S. 1003, 1015 [120 L. Ed. 2d 798, 112 S. Ct. 2886].)
Respondent Tahoe Regional Planning Agency imposed moratoria on development in the Lake Tahoe Basin while formulating a use plan for the area. Petitioner real estate owners sued alleging the moratoria constituted a taking of their property without just compensation. The district court held that there was a taking under the categorical rule set forth in Lucas v. South Carolina Coastal Council (1992) 505 U.S. 1003 [112 S.Ct. 2886, 120 L.Ed.2d. 798] because the moratoria deprived the owners of all economically viable use of their land. The Ninth Circuit held that because the regulations had only a temporary impact on the petitioner's fee interest, there was no categorical taking.
The U.S. Supreme Court affirmed. The duration of the restriction is one of the factors to be considered. The factors in Penn Central Transportation Co. v. New York City (1978) 438 U.S.104 [98 S.Ct. 2646, 57 L.Ed.2d. 631] must be considered. Fairness and justice will not be served by adopting a categorical rule that any deprivation of all economic use, no matter how brief, constitutes a compensable taking.
Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency (U.S. Supreme Court, April 23, 2002) __U.S.__ [122 S. Ct. 1465; 152 L. Ed. 2d 517].
Penn Central Transportation Co. v. New York City, was a landmark United States Supreme Court decision on compensation for regulatory takings.
The decision established a test incorporating three significant factors to determining whether government regulation amounted to a taking:
(1) The effect of the regulation on the value of the property,
(2) the extent to which the reasonable investment-backed expectations of the property owner have been interfered with, and (3) the character of the government action.
For a complete beginning text see “The Law of Regulatory Takings: Part I Development of the Law” By Joel R. Burcat and Julia M. Glencer, February 2002.
Also, for general reading, Wikipedia further explains (in plain English) US Supreme Court tests for “regulatory taking” at http://en.wikipedia.org/wiki/Regulatory_taking :
- Diminution-of-value test
- Physical invasion test
- Total takings test
- The denominator problem
Other Neighboring Communities
Addison has a construction and demolition debris facility, located away from residential areas, which collects broken asphalt, concrete and dirt. There have been no complaints from residents regarding this facility, according to the Village of Addison.
This stands as an example of slanted information. Crush Crete only processes asphalt, concrete and dirt, none of which is drywall, the source of H2S malodor. This facility is over 2,000 feet away from the nearest area zoned for residential use, and the site was approved in part because of it’s compliance with 415 ILCS 5/22.38 ¼ mile separation requirement.
Timothy G. Townsend is an associate professor of environmental engineering sciences at the University of Florida in Gainesville, Fla. In the May 2003 edition of the trade magazine Construction and Demolition Recycling he published an extensive article about drywall. The article in its entirety can be found at:
http://www.cdrecycler.com/articles/article.asp?Id=4626
The relevant part:
“The presence of organic matter such as yard trash or cardboard is needed for the microorganisms to thrive, but even the paper on the drywall itself provides enough organic matter for the biological reactions to occur. H2S has been observed over a tremendously large concentration range at C&D debris landfills.
The human nose can detect H2S at relatively low concentrations (<0.1 part per million or ppm). H2S concentrations have commonly been measured in this range in the air above and surrounding C&D debris landfills, thus odor complaints are a common problem. Concentrations in pockets within the landfill have been measured at lethal levels (>250 ppm).”
“It is also worth noting for C&D debris recycling facility operators that the presences of gypsum drywall particles in the fines screened from C&D debris could on occasion also result in H2S production. Several operators have reported that odors are present when deep piles of C&D debris fines are disturbed. Care should be taken to reuse fines only in areas where they are not prone to getting wet in the future.”
- Glen Ellyn, Lombard and Westmont list these facilities as special uses. There are no specific separation standards in their ordinances.
So they default to the state ¼ mile separation.
- Woodridge and Lisle do not permit these facilities.
Exclusionary zoning that has never been challenged, possibly due to rational basis.
- DuPage County does not list the facilities but would allow them if they proceed through the State’s siting procedures.
Which would include a ¼ mile separation.
The Plan Commission considered the amendment at its May 7, 2007 meeting. After receiving input from a resident, the Commission recommended increasing the required separation to 1,320 feet and eliminating the exception for the Tollways. These modifications limit these types of uses to the Esplanade and Woodcreek developments.
The Plan Commission recommended unanimous approval of the text amendment with the 1,320 foot separation and the elimination of the Tollway exception.
Staff concurs with the recommendation to increase the separation distance to 1,320 to be consistent with the State’s requirement. However, staff believes the Tollway exception should still apply as any nuisances created by a proposed recycling collection facility would be mitigated by the physical barrier created by the roadway.
There are no studies locatable that support staff’s position that a flat roadway embedded in the ground creates a sufficient barrier to the many types of air-borne pollution created by a facility that accepts construction and demolition debris. A tollway or other roadway does not create an effective barrier to airborne dirt, dust, malodor and noise pollution regardless of the existence of walls placed to mitigate noise. A simple visit to any of these walls verifies they reduce but do not eliminate noise pollution. Asking nearby residents will verify that the walls are only partially effective.
One reason for the ¼ mile minimum separation requirement in 22.38 is to mitigate, by virtue of physical isolation, airborne pollution caused by facilities that accept construction and demolition debris, and is why they tend to be located in areas of other heavy industries that also generate air, noise, and malodor pollution, and tend to be located far away from where people live. The existence of a roadway does not mitigate those issues.
I respectfully request that residents of Downers Grove be granted the same minimum protections as allowed by the state, and that the 1,320 feet be adopted. I further respectfully request that the tollway exemption, that would put this type of facility potentially within 300 feet of families, be removed.
Further, that the definition be as follows, which will make them identical to state:
(415 ILCS 5/3.375) (was 415 ILCS 5/3.81) Sec. 3.375. Recycling center. "Recycling center" means a site or facility that accepts only segregated, nonhazardous, nonspecial, homogeneous, nonputrescible materials, such as dry paper, glass, cans or plastics, for subsequent use in the secondary materials market. (Source: P.A. 92‑574, eff. 6‑26‑02.)
(415 ILCS 5/3.290) (was 415 ILCS 5/3.21)
Sec. 3.290. Municipal waste. "Municipal waste" means garbage, general household and commercial waste, industrial lunchroom or office waste, landscape waste, and construction or demolition debris.
(Source: P.A. 92‑574, eff. 6‑26‑02.)
This will properly differentiate one from the other in the definitions section, frees recycling centers to expand their purpose (collecting glass, paper, plastic, and cans), and allows facilities that accept construction and demolition debris to be treated as per state statute, which itself provides a very robust rational basis.