The Story So Far       I'm from Downers Grove...

This is part 1.  It contains information up to September.  It is in reverse order, so the oldest information is at the bottom.  If you want to read it in sequence, start at the bottom and work your way up.  I dated each entry.

Read Collision Course for Part 2.   

9/13/07 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 says a facility that accepts construction and demolition debris IS a recycling center.  It conflates the meanings of the two so a facility that accepts construction and demolition debris can say it's a recycling center. 

Will they both arrive back at council for the same workshop?  If they actually defined them according to state it breaks out like this:

(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.)

(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.)

Here's two definitions that were drawn up for the state statutes, but were later left out, as lawmakers felt the definition of construction and demolition debris covered them both:

90_HB1887ham001

Sec.    3.78a.  Commercial    general   construction   or

28    demolition  debris  recycling  center.   "Commercial  general

29    construction or demolition debris recycling center"  means  a

30    site  or facility that accepts from more than one source only

1    general construction or demolition debris that  is  generated

 2    off-site  so  that recyclable materials will be separated and

 3    removed for subsequent use in the secondary materials market.

 4        (415 ILCS 5/3.78b new)

 5        Sec. 3.78b.  On-site general construction  or  demolition

 6    debris  recycling  center.   "On-site general construction or

 7    demolition debris recycling center" means a site or  facility

 8    used  by  any  person  accepting only general construction or

 9    demolition debris that is  generated  by  that  person's  own

10    activities  at  the site or facility or transported within or

11    between sites or facilities owned, controlled, or operated by

12    that person, so that recyclable materials will  be  separated

13    and  removed  for  subsequent  use in the secondary materials

14    market.

As you can see, bothe are concise, accurate, robust, and rational.  I gave copies of these to staff.  We'll see if they actually make use of them.  A 'Recycling Center', and a 'Commercial general construction or demolition debris recycling center' are two completely different things.  The ECC got right: the Plan Commission approved what staff asked for, and staff got it wrong.

9/11/07 A bad definition gets worse, as staff creates a slippery slope.  Friday evening the Plan Commission agenda came out with an ordinance to change the definition of 'recycling collection center' to include facilities that accept construction and demolition debris.  72 hours later on Monday night, after it had been moved to last on the agenda (same as in May), and after 4 hours of patiently waiting, the Plan Commission heard testimony from myself, Tom Sisal, and residents of Cameo Condos that this was a step backwards.  The acting village attorney came in at the end, said it was a zoning matter, that the village could do this and it was no problem, and it was approved unanimously.  Gotta hand it to her, she's good: I hope some day she sticks up for residents like that.  Now it goes to council for their approval and passage.  You can read more about the meeting over at DG Report, Elaine Johnson's news blog.

If this new definition gets approved by council, if a recycling collection facility is also a facility that accepts construction and demolition debris, we may not be able to do commercial recycling downtown for the high density housing that's gone in, or for restaurants.  We were just talking bottles, cans, plastics, paper.  Now the definition also includes asphalt, drywall, mortar, concrete, wood, almost anything that comes from buildings being built or torn down.  We may be obligated to observe the existing minimum distance separation from any of that. 

Say you're a person with a very well know local lawyer who wants to build a facility that accepts construction and demolition debris next door to where our senior citizens live at Cameo Condos.  Currently you can't because the IEPA says so.  Maybe soon, according to this definition going before council, your grungy, dusty, rodent attracting, smelly, high-truck-traffic-at-all-hours, neccessary but nuisance to any residential area (hence the required separation distance) business is now a recycling collection facility, on a par with Boy Scouts collecting paper, or Goodwill collecting clothes.  Says your lawyer, "Look at the definition in our muni code, chumps, we can go wherever our pals let us."

And hey, what works for one company, can work for dozens more.  If one of these can circumvent IEPA law because we let them, what do we do about the next 10 that want to be here too?  Precedent might be set so we can't stop them.  All because of a bad definition.  So bad it could wreck our whole community.  Is that what we really want?

The sponsors of this have switched back and forth between Tom Dabareiner, Director of Community Development, and Dave Fieldman, our Deputy Village Manager.  I've met both of these guys.  They are nice guys.  They are intelligent.  They work hard.  They have already both done good things for our village and for us.  I hope one day they will explain to me who twisted their arms so hard and so long that they did the things they are currently doing when it comes to this issue.  I refuse to beleive they don't give a rat's ass about residents, or about state Environmental Safety Law.

A muni ordinance shouldn't be passed in a rushed knee-jerk response to fear-mongering.

This is part of the Power Point presentation I agreed not to make at the 7/10 council workshop.  That meeting lasted over 4 hours because of the housing issue that is also front and center.  Council made it pretty clear they would approve a 90 day moratorium.  There was that one petition filed the morning of the meeting. 

This is, really, where it all begins; a poory written, vaguely descriptive, decades old, outdated definition in 28.201.  Go ahead and try and draw a picture of what this definition describes.  See "Pictures for an Exhibition" for a tour of other facilities that accept construction and demolition debris.

Do you see the difference here?  Around 1970, when the village code writers defined "recycling collection center', there were no facilities that accepted construction and demolition debris.  Now, there are.  And computer recycling, and appliance recycling, and eyeglasses recycling, and battery recycling, and on and on.  We live in the 21st century, the world of tomorrow, and we recycle, and that's good.  Later efforts to write descriptions are much better.  This is what staff will try and do during the moratorium: accurate descriptions.                            

Here's two definitions the U.S. EPA and the Illinois EPA agree on:

And here's two more:

There is no village definition or requirements set out for facilities that accept construction and demolition debris.  They didn't exist way back when DG wrote it's definition of 'recycling collection facility'.  But they do now, and both the feds and the state clearly define them.  We never got around to updating ours.  But does that really matter? 

Construction and demolition debris facilities are dirty, grungy places.  You don't want to live next to one.  Don't believe me, go look for yourself..

Put on your hip boots and wade along with me...

“The separation requirement only applies when the county or municipality where the proposed facility is to be located does not have a zoning ordinance. Because the Village has a zoning ordinance, the regulation did not apply to this particular case.”

VILLAGE OF DOWNERS GROVE REPORT FOR THE VILLAGE COUNCIL WORKSHOP JUNE 26, 2007 AGENDA. 

Village staff have made the above statement on several public occasions, and continues to use this determination as justification for introducing distance exemptions to the distance separation provision of 415 ILCS 5/22.38. 

This determination is more one of strategy rather than one exhibiting a good-faith effort to comply with the requirement.  The village has no requirements.  Calling a horse (C&D facilty), a cow (recycling center) because our old ordinance doesn't tell them apart, doesn't make a horse a cow.  It just makes our old definition look unusable-which everyone now knows. 

Let's keep wading through it...

"Staff suggested modifications to the Plan Commission recommendations based on the fact that an analysis of the recommendations raised questions of inverse condemnation." STAFF PRESENTATION AT THE 6/26 07 COUNCIL WORKSHOP, FROM THE MINUTES.

This is plainly proven false by every known legal definition, and legal case history of inverse condemnation, regulatpry taking, and categorical taking.  See Questions? for sources, citations, and further reading.  When I met with the village Manager, Deputy Village Manager, and Director of Planning and Development, I offered them all of my sources.  They did not have any to offer back.

We're wading... we're wading...

“The separation requirement only applies when the county or municipality where the proposed facility is to be located does not have a zoning ordinance. Because the Village has a zoning ordinance, the regulation did not apply to this particular case.”

FROM MINUTES OF THE MAY 7, 2007 STAFF REPORT TO PLAN COMMISSION

If staff feels it can repeat a baseless claim with no supporting evidence, I'll keep repeating state law.

Ok, getting a little heated up.  Some say I'm wrong, I say I'm right.  I don't have the money to hire a bank of lawyers to vet my statements, but I'm pulling state law out of the Illinois Compiled Statutes, The Environmental Protection Act, and a legal explanation of 22.38 given in writing to the Village by the Illinois Attorney General's Office and the Illinois EPA at my request.  Where is staff pulling their information out of?  Wrong premise, wrong conclusion...repeated over and over and over.  Do two wrongs make a right if you keep saying it enough times?

Getting deeper; good thing we have on hip boots instead of galoshes...

"...the village would essentially be banning the creation of recycling facilities indirectly, which could leave Downers Grove open to law suits." STAFF QUOTE, DOWNERS GROVER REPORTER, "Residents question limits on recycling facility", 6/28/07.

Let's be honest, we DO flat out prohibit some 'recycling activities' from our village:

"28.1000SEC. General Provisions.
(c) Without limitation to the foregoing, the following are expressly prohibited within the Village and shall not be permitted or conducted as part of any permitted or special use:

        (1) Vehicle wrecking.

        (2) Junk yards.

        (3) Junk vehicles."

I suppose there are some (not me) that would really like to have a casino here in Downers Grove.  Joliet has them, why not us?  State law says we can't have one.  We don't have anything in our code that says we can't have one.  I have this cousin who's a pig farmer, and right behind Village Hall would be a nice place for that.   And BP would like to build a much needed refinery where TCF Bank just vacated.  How about it?

Of course these are all bull: I just made them up, out of thin air, out of nothing, to make a point.  Somethings don't fit everywhere or anywhere in our village, and maybe the village shouldn't try to purposefully rig it so it so they might.

The village is already in the books with effective exclusionary zoning and with outright bans; we wrote deliberate exclusionary zoning requirements for trailer parks, and we outright ban vehicle wrecking yards, junkyards, and junk vehicles.  I have looked at several cases involving zoning lawsuits here in Illinois.  The village might want to do that.  I solicited some free legal advice and got it.  If the village writes good new definitions and a good solid set of ordinances, we have nothing to fear.  Then again, I'm not a lawyer.  I'll ask some more. 

8/5/07 Update: The lawyers I talked to unanimously say I'm on the right track, I have a solid set of proposals in Moving Towards Solutions.

But I seem to be doing a lot more legal research than anyone else is.  I keep finding case law that basically says write good solid ordinances, do not single out anything or anyone for special consideration or discrimination of any kind; and that ordinance will stand.

So far, I don't know nothin'... that's why I keep citing my references and linking to my background information.  Anyone can check what I've looked at, and where I've gone for my supporting information.  Staff says they know somethin'...and to date, not one shred of supporting evidence, case law history, NOTHING that supports ANY of their claims.

It's just too deep, even for hip boots.  We're swimming in it.

So where did all these exemptions and talk of lawsuits come from?  I don't recall Disposal Management Systems, the owner, or his lawyer threatening to sue; he's busy looking for a place to put his business, and said as a Downers Grove resident he's very concerned about being a good neighbor.  Good neighbors don't sue, right?  So where did all this talk about we're going to get sued come from?

Copy and paste an ordinance based on three things; porno book stores, an existing business, and a threat to sue if the village tried to zone them out of business, and here you go:

Which brings us to the villages most repeated, but never supported, claim...

"Fish gotta swim, birds gotta fly, lawyers gotta sue, don't ask me why..."* 

* In fact, not all lawyers "gotta" sue.   

(8) the care with which the community has undertaken its development plan.

We have a history of looking to follow other rules, regulations, codes, and laws.  This is partial list that we currently adopt in whole or in part.  It makes village code writing easier, and aligns us with the rest of the county, state, nation, or even world by adopting, observing, and adhering to higher authority. 

Illinois observes 28 sets of Environmental Law.  Should we observe 27?  Guess which one helped out during the Ellsworth Groundwater Contamination?