McHenry County Defenders v. City of Harvard

• Court: Appellate Court of Illinois
• Decided: July 2, 2008
• Docket: 2-07-0386 Rel
• Status: Published

Opinion

No. 2--07--0386 Filed: 7-2-08 ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

McHENRY COUNTY DEFENDERS, INC., ) Appeal from the Circuit Court and SUSAN HAYDEN, ) of McHenry County. ) Plaintiffs-Appellants and Cross- ) Appellees, ) ) v. ) No. 05--MR--109 ) THE CITY OF HARVARD, CHUCK ) MARZAHL, PHIL ULMER, JOEL BERG, ) SCOTT DIKUN, SCOTT LOGAN, ) DARRELL PERKINS, TOM HAY, ) JAY NOLAN, BRIAN LEYDEN, DEBRA ) SZCZAP, and RICK ADAMS, ) ) Honorable Defendants-Appellees and Cross- ) Maureen P. McIntyre, Appellants. ) Judge, Presiding. _____________________________________________________________________________

JUSTICE BOWMAN delivered the opinion of the court:

Plaintiffs, McHenry County Defenders, Inc., and Susan Hayden, brought an action under

section 17 of the Illinois Natural Areas Preservation Act (Preservation Act) (525 ILCS 30/17 (West

2004)) and section 11(b) of the Illinois Endangered Species Protection Act (Endangered Species Act)

(520 ILCS 10/11(b) (West 2004)) (collectively Acts), seeking to require the City of Harvard (City)

and its elected officials (collectively defendants) to engage in environmental consultations with the

Illinois Department of Natural Resources (IDNR). Plaintiffs alleged that the Acts required

defendants to engage in such consultations before passing ordinances allowing Meyer Material No. 2--07--0386

(Meyer) to proceed with a proposed gravel pit and mining operation on several hundred acres of land

that the City agreed to annex. The trial court granted summary judgment for plaintiffs, ruling that

defendants had violated the relevant statutes by failing to consult with the IDNR before passing

ordinances regarding the gravel mining operation. The trial court ordered defendants to consult with

the IDNR. However, the trial court had also previously granted defendants' motion to dismiss

plaintiffs' request to declare the relevant ordinances void. It had further denied plaintiffs' motion for

leave to amend their complaint to request that the City be ordered to pass an ordinance nullifying the

previous ordinances. Plaintiffs seek such relief on appeal. Defendants have filed a cross-appeal in

which they argue that the trial court erred in granting summary judgment for plaintiffs, because the

gravel mining operation was not funded, carried out, or authorized by the City, as required by the

Acts, and because the consultation process was completed in both 2001 and 2005. We affirm.

I. BACKGROUND

Plaintiff McHenry County Defenders, Inc., is a nonprofit corporation dedicated to

environmental preservation. Plaintiff Susan Hayden is a City resident who lives about one quarter

of a mile south of the subject property. The City is located in McHenry County. When this case

originated, defendant Jay Nolan was the City's mayor and defendants Chuck Marzahl, Phil Ulmer,

Joel Berg, Scott Dikun, Scott Logan, Darrell Perkins, and Tom Hay were City aldermen. During the

pendency of the case, Brian Leyden, Debra Szczap, and Rick Adams were elected City aldermen and

added as defendants.

The subject site is located at 8605, 8521, and 9106 Lawrence Road and consists of about 792

acres. Before annexation, the property was located in unincorporated McHenry County, next to but

outside of the City's corporate limits. It was zoned under a McHenry County zoning ordinance as

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" 'A-1' -- Agricultural" and was used as farmland. The Lawrence Creek flows through the subject

property and into the Piscasaw Creek, which is downstream from the property. The Piscasaw Creek

area is a Natural Area Inventory Site (Inventory Site) (see 525 ILCS 30/17 (West 2004); 17 Ill. Adm.

Code §4010.110 et seq., adopted at 18 Ill. Reg. 7253 (eff. May 3, 1994)) that begins at the Wisconsin

border and follows the path of the Piscasaw Creek through McHenry County. According to

plaintiffs, the creek flows a little more than one quarter of a mile west of the proposed gravel mine.

The Slippershell mussel and the Blandings turtle are on the State's list of threatened species.

Hayden is a wildlife ecologist for the McHenry County Conservation District (Conservation

District), where she is responsible for inventorying several animal groups, including the Slippershell

mussel and the Blandings turtle. The Lawrence Creek runs within 100 feet of Hayden's property.

Hayden has documented a Blandings turtle about 1,000 feet from the subject property, between the

site and Lawrence Creek. She has also documented a Blandings turtle in Beck's Woods, which is

an Inventory Site through which the Piscasaw Creek runs. Hayden has tracked about two to six

Blandings turtles every year since 1999. The Conservation District has documented Slippershell

mussels in the Lawrence and Piscasaw Creeks, within one mile of the subject property.

At all relevant times, Meyer has owned the subject property. In 2004, Meyer sought to have

the City annex the property, and it also sought a conditional use permit and zoning variance to allow

it to use the property for a gravel mining operation. On December 8, 2004, after public hearings, the

City adopted ordinances to: (1) approve an annexation agreement between it and Meyer regarding

the subject property (ordinance No. 2004-159); (2) annex the property into the City's corporate limits

(ordinance No. 2004-160); and (3) grant a conditional use permit and zoning variance to allow the

property to be used for a gravel mining operation (ordinance No. 2004-161).

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The annexation agreement contains a recital stating that the City has "concluded that the

annexation of the Property to the City *** would enable the City to control the development of the

area and serve the best interest of the City." The agreement further provides, in relevant part, as

follows. The City will enact an ordinance annexing the property. The City will also adopt an

ordinance amending the City's zoning map to classify the property as "M-1, Manufacturing District,"

with conditional use for a sand and gravel operation; a concrete crushing and recycling facility; a

concrete ready mix plant; and a bituminous asphalt plant. The conditional use permit for the

bituminous asphalt plant requires that Meyer pay the City 30 cents for each ton of asphalt hauled

from the property. The City has a right to stop all operations on the property if the annexation

agreement or a City ordinance is violated. Excavation is not to take place within 100 feet of any

street or boundary line, and setbacks for deep mining shall be at least 150 feet. Meyer shall

landscape the property's boundaries in accordance with the "Mine Report" plan, along with some

additional requirements. Meyer will install additional fencing consistent with recommendations

made by the City's engineer. After 10 years, Meyer must donate 50 acres of the land to the City to

use as a park. The agreement also contains requirements regarding things such as reclamation, storm

water detention, dumping, days and hours of operation, entrances, ground water, site maintenance,

and fees.

In August 2001, several years before the City annexed the subject property, Meyer initiated

an environmental consultation process with the IDNR pursuant to the Acts. At that time, the IDNR

determined that there were no endangered or threatened species in the area. In September 2001, the

IDNR issued an "Endangered Species Consultation Program Agency Action Report" that stated that

the consultation process was terminated.

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In November 2004, around the time Meyer petitioned the City for annexation of the subject

property, the IDNR, through Keith Shank, notified the City that it was requiring a new consultation

because the previous consultation was over two years old and because, since that time, the IDNR had

received reports documenting sightings of the Blandings turtle and the Slippershell mussel near the

subject property. The IDNR believed that the proposed gravel mining operation could possibly

adversely affect these species and the Piscasaw Creek Inventory Site. David Nelson, a City

employee, responded to Shank's e-mail by stating that he had passed the information on to Meyer

and its engineers, and that "[o]bviously the City of Harvard will not sign off on this proposal without

this review, and direction from the department."

On March 25, 2005, Meyer applied for a surface mining permit with the IDNR's Office of

Mines and Minerals (OMM). In processing the application for the permit, the OMM began an

environmental consultation process with the IDNR's Office of Realty and Environmental Planning

(OREP), pursuant to the statutes at issue. The OREP issued letters opining that the project was likely

to adversely impact the essential habitat of the Blandings turtle and Slippershell mussel and the

species themselves. The OREP recommended, among other things, that no mining be performed

between November and March; that exclusionary fencing be installed before construction begins,

to keep turtles out of construction areas; and that artificial nesting grounds for the turtles be

constructed to offset any that may be destroyed. It also recommended that Meyer obtain an

"Incidental Take Authorization" in case Blandings turtles were destroyed in the course of

construction or mining activities. On October 31, 2005, the OREP terminated the consultation

process with the OMM. On March 3, 2006, the OMM issued Meyer a mining permit.

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Plaintiffs filed the instant action on June 6, 2005. Plaintiffs asked the trial court to: (1)

declare that the City violated section 17 of the Preservation Act and section 11(b) of the Endangered

Species Act by not engaging in environmental consultations before approving the annexation

agreement and Meyer's petition for rezoning; (2) declare void City ordinance Nos. 2004-159, 2004-

160, and 2004-161; (3) issue a writ of mandamus requiring the City to consult with the IDNR; and

(4) award plaintiffs their costs.

On August 16, 2005, defendants filed a combined motion to dismiss under sections 2--615

and 2--619 of the Code of Civil Procedure (Code) (735 ILCS 5/2--615, 2--619 (West 2004)). As

section 2--615 grounds for dismissal, defendants argued that, under the Acts, plaintiffs could pursue

only writs of mandamus and could not obtain monetary or declaratory relief. As section 2--619

grounds for dismissal, defendants argued that plaintiffs did not have standing to pursue declaratory

or monetary relief and that the aldermen were immune from suit as government officials.

On November 8, 2005, the trial court granted defendants' motion as to plaintiffs' request for

a declaration that the ordinances were void. The trial court stated that it did not believe the Acts

provided it with the authority to declare the ordinances void. The trial court denied the remainder

of defendants' motion to dismiss. Plaintiffs thereafter sought leave to amend their complaint to

request that the trial court order the City to pass an ordinance invalidating the contested ordinances.

The trial court denied this motion on February 7, 2006.

On December 15, 2006, defendants filed a motion for summary judgment. Defendants

argued that the City was not required to engage in an environmental consultation, because the City

did not authorize, fund, or carry out the project, the trigger for the consultation requirement under

the Acts. They further argued that consultations regarding the subject property were completed and

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terminated in 2001 and 2005. Last, defendants argued that plaintiffs' action was moot because the

IDNR had terminated the latest consultation and issued Meyer a mining permit. On December 18,

2005, plaintiffs filed a cross-motion for summary judgment, arguing that, because the City had not

personally consulted with the IDNR, the City was in violation of the Acts.

On March 16, 2007, the trial court granted plaintiffs' motion for summary judgment and

denied defendants' motion for summary judgment. The trial court ruled that defendants had violated

section 17 of the Preservation Act and section 11(b) of the Endangered Species Act by authorizing

Meyer's gravel mining operation without first consulting with the IDNR. The trial court granted

plaintiffs' mandamus request and ordered defendants to consult with the IDNR within 45 days.

Plaintiffs timely appealed, and defendants timely cross-appealed.

II. ANALYSIS

We begin by setting forth the relevant statutes. Section 17 of the Preservation Act states in

its entirety:

"All public agencies shall recognize that the protection of nature preserves, buffer

areas and registered areas is the public policy of the State and shall avoid the planning of any

action that would adversely affect them.

It shall be the public policy of each agency of State or local government to utilize

its authority in furtherance of the purposes of this Act, and to evaluate, through a process of

consultation with the Department, whether the actions, including capital projects, that are

authorized, funded, or carried out by the agency of State or local government are likely to

result in the destruction or adverse modification of any natural area that is registered under

this Act or identified in the Illinois Natural Areas Inventory.

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The evaluation shall be conducted early in the planning of a proposed action. If the

proposed action is found likely to have an adverse impact on a natural area, the agency shall

study the proposed action to determine possible methods of eliminating or mitigating the

adverse impact. Before implementing any action, the agency shall attempt to mitigate or

eliminate any adverse impacts in a manner consistent with the planned action. The

Department, Commission, or any affected person may seek a writ of mandamus to compel

an agency of State or local government to engage in the evaluation and study required by this

Section." (Emphasis added.) 525 ILCS 30/17 (West 2004).

Section 11(b) of the Endangered Species Act states in relevant part:

"It is the public policy of all agencies of State and local governments to utilize their

authorities in furtherance of the purposes of this Act by evaluating through a consultation

process with the Department whether actions authorized, funded, or carried out by them are

likely to jeopardize the continued existence of Illinois listed endangered and threatened

species or are likely to result in the destruction or adverse modification of the designated

essential habitat of such species, which policy shall be enforceable only by writ of

mandamus[.]" (Emphasis added.) 520 ILCS 10/11(b) (West 2004).

We first address the arguments defendants raise in their cross-appeal, as they are potentially

dispositive of the case. Defendants argue that the trial court erred in granting summary judgment

for plaintiffs, because the proposed gravel mining operation was not "authorized, funded, or carried

out" by the City, the prerequisite for the consultation requirement under section 17 of the

Preservation Act and section 11(b) of the Endangered Species Act. It is undisputed that the City did

not fund or carry out the operation, so the sole issue is whether the City "authorized" it.

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We pause to set forth the applicable standard of review. Summary judgment is appropriate

only where the pleadings, depositions, admissions, and affidavits on file, when viewed in the light

most favorable to the nonmoving party, show that there is no genuine issue of material fact and that

the moving party is entitled to judgment as a matter of law. Murray v. Chicago Youth Center, 224

Ill. 2d 213, 228 (2007). We review de novo a grant of summary judgment. People ex rel.

Department of Public Health v. Wiley, 218 Ill. 2d 207, 220 (2006).

This court extensively discussed the meaning of the term "authorized" in Pierce Downer's

Heritage Alliance v. Village of Downers Grove, 302 Ill. App. 3d 286 (1998). In that case, Advocate

Health and Hospital Corporation owned 70 acres of land in Downers Grove. The southern portion

of the land was developed with a hospital and other buildings while the northern portion was

undeveloped and adjacent to a wooded area protected as an Inventory Site. Pierce Downer's, 302

Ill. App. 3d at 289. Advocate decided to build a "Wellness Center" occupying 8.22 acres in the

northern portion of the land. It applied for a certificate of need from the Illinois Health Facilities

Planning Board (Board). Advocate also applied to Downers Grove for an amendment to its planned

unit development to allow the construction of the Wellness Center. Pierce Downer's, 302 Ill. App.

3d at 290. Downers Grove's plan commission held a public hearing on the request and then voted

to approve it. The plan commission noted in its findings that, at Advocate's request, the IDNR had

already conducted and concluded an environmental consultation regarding the project. Downers

Grove thereafter passed an ordinance approving Advocate's amendment to its planned unit

development. Pierce Downer's, 302 Ill. App. 3d at 291.

The plaintiffs subsequently filed a complaint against Downers Grove, the Board, and others,

seeking to require Downers Grove and the Board to participate in environmental consultations.

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Pierce Downer's, 302 Ill. App. 3d at 291. The trial court granted the defendants' motions to dismiss

the complaint. Pierce Downer's, 302 Ill. App. 3d at 292. On appeal, this court noted that Downers

Grove and the Board were required to consult with the IDNR only if they " 'authorized, funded, or

carried out' " the Wellness Center's construction, and, like in the instant case, it was undisputed that

Downers Grove and the Board did not fund or carry out the project. Pierce Downer's, 302 Ill. App.

3d at 295.

In analyzing the term "authorized," particularly as used in section 17, this court noted that

the language of a statute should be given its plain and ordinary meaning. Pierce Downer's, 302 Ill.

App. 3d at 295. We referenced Black's Law Dictionary as defining the term "authorized" as " '[t]o

empower' or 'to give a right or authority to act.' " Pierce Downer's, 302 Ill. App. 3d at 296, quoting

Black's Law Dictionary 122 (5th ed. 1979). We determined that the Board had not "authorized" the

project because, although the certificate of need was necessary for Advocate to operate the Wellness

Center as a medical facility, Advocate did not need the certificate to construct the building itself and

the Board had no role or control in the planning or design of the project. Pierce Downer's, 302 Ill.

App. 3d at 296.

Regarding Downers Grove, we stated that the dictionary definition of "authorize" could lead

to the conclusion that Downers Grove's approval of the project was an "authorization" of the project.

Pierce Downer's, 302 Ill. App. 3d at 296. However, we noted that statutes should be construed as

a whole to give effect to the legislature's intent, and that section 17 had a policy declaration that

public agencies should avoid "planning" any action that would adversely affect nature preserves,

buffer areas, and registered areas. Pierce Downer's, 302 Ill. App. 3d at 296-97. We cited the

American Heritage Dictionary definition of "planning" as " 'to form a scheme or program for the

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accomplishment or attainment of a specific aim and purpose.' " Pierce Downer's, 302 Ill. App. 3d

at 296, quoting American Heritage Dictionary 1044 (3rd ed. 1993). We determined that the

legislature's use of the word "planning" prevented us from adopting the broad dictionary definition

of the term "authorize," because the term "planning" seemed to require that the public agency have

a role in "forming" the scheme or program. Pierce Downer's, 302 Ill. App. 3d at 297. We stated that

"such a role clearly requires more active participation in the action than that which would satisfy the

traditional dictionary definition of the term 'authorize.' " Pierce Downer's, 302 Ill. App. 3d at 297.

We concluded that the legislature's use of the word "authorize" was not meant to include the type

of action undertaken by Downers Grove, because it did not develop, plan, or construct the Wellness

Center, and its approval of a modification to a planned unit development was not the type of

"planning" the legislature intended in the preface of section 17. Pierce Downer's, 302 Ill. App. 3d

at 297.

This court went on to state that we believed that section 17 was meant to apply in situations

where the governmental entity was actively participating in the action, with a direct role in planning,

designing, funding, constructing, or carrying out the action. As support, we pointed out that the

legislature required only governmental agencies to engage in the consultation process. We reasoned

that, if the legislature had intended to include private projects within the scope of section 17, the

legislature would have also required the private parties planning such projects to obtain

environmental consultations. This was especially true because section 17 stated that the consultation

should occur in the initial planning of an action, and the inclusion of private parties would facilitate

the process and maximize its effectiveness. In contrast, Downers Grove's approval was the last step

before construction of the Wellness Center began. Pierce Downer's, 302 Ill. App. 3d at 297. We

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additionally cited a comment made during senate debates on the legislation as evidence that section

17 was meant to apply just to actions with direct governmental involvement. Pierce Downer's, 302

Ill. App. 3d at 298.

In response to the plaintiffs' argument that administrative regulations required an

environmental evaluation for private property zoning decisions that could have an adverse

environmental impact, we noted that Downers Grove did not have to change the property's zoning

when it approved Advocate's amendment to its planned unit development. Pierce Downer's, 302 Ill.

App. 3d at 298. We also stated that there was an applicable exception in the regulations for " 'change

of zoning requests for land currently zoned, developed, and used in its entirety for commercial,

industrial or residential purposes.' " Pierce Downer's, 302 Ill. App. 3d at 298, quoting 17 Ill. Adm.

Code §1075.30(c)(8) (1996). Finally, we stated that "an administrative agency may not use its rules

and regulations to expand the scope of a piece of legislation to include requirements not found in the

statute," and, to the extent the IDNR's regulations required a local government to obtain

consultations every time it approved the construction of private projects on private property, we

believed that the IDNR had exceeded its authority under the Preservation Act. Pierce Downer's, 302

Ill. App. 3d at 298-99.

One justice dissented from the majority's analysis of the term "authorization." He noted that

Illinois courts had held that "authorized" means " 'given or endowed with authority' or 'legally or duly

sanctioned.' " Pierce Downer's, 302 Ill. App. 3d at 300-01 (Bowman, J., specially concurring in part

and dissenting in part), quoting In re Disconnection of Certain Territory from the Sanitary District,

111 Ill. App. 3d 339, 344 (1982). He pointed out that the dictionary typically relied on by this court

similarly defined "authorized" as " 'endowed with *** [or] sanctioned by authority.' " Pierce

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Downer's, 302 Ill. App. 3d at 301 (Bowman, J., specially concurring in part and dissenting in part),

quoting Webster's Third New International Dictionary 147 (1986). He stated that he would find that

section 17 encompassed the decisions of both Downers Grove and the Board because the

construction of the Wellness Center and its use as a health facility were "authorized" by and "legally

or duly sanctioned" by these governmental entities, and Advocate would not have been able to

construct and operate the Wellness Center without their approval. Pierce Downer's, 302 Ill. App.

3d at 301 (Bowman, J., specially concurring in part and dissenting in part).

Regarding section 17's use of the word "planning," the dissenting justice stated that Webster's

Third New International Dictionary defined that term as " 'the act or process of making or carrying

out plans,' specifically, 'the establishment of goals, policies, and procedures for a social or economic

unit.' " Pierce Downer's, 302 Ill. App. 3d at 301 (Bowman, J., specially concurring in part and

dissenting in part), quoting Webster's Third New International Dictionary 1731 (1986). In light of

this definition, he believed that the phrase " 'planning of any action' " in section 17 specifically

referred to actions undertaken by a governmental agency, while the language " 'the actions ***

authorized' " by a governmental agency encompassed the actions of both public agencies and other

parties. Pierce Downer's, 302 Ill. App. 3d at 301 (Bowman, J., specially concurring in part and

dissenting in part). He concluded that, by not consulting with the IDNR about the environmental

impact of Advocate's project before authorizing the action, Downers Grove failed to comply with

the legislature's intent in enacting section 17. Pierce Downer's, 302 Ill. App. 3d at 301-02 (Bowman,

J., specially concurring in part and dissenting in part).

Defendants preliminarily argue that, although the Pierce Downer's court interpreted the word

"authorized" solely as used in section 17 of the Preservation Act, the term as used in section 11(b)

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of the Endangered Species Act should be interpreted similarly. Defendants maintain that both acts

have similar language, stated purposes, requirements, and remedies, in that both seek to preserve

natural resources, require environmental consultations regarding the impact of projects in which

governments are involved, and allow for writs of mandamus to compel the required consultations.

Indeed, "[a] court presumes that two or more statutes which relate to one subject are governed by one

spirit and policy, and that the legislature intended the statutes to be operative and harmonious."

Henrich v. Libertyville High School, 186 Ill. 2d 381, 391-92 (1998). Accordingly, we agree with

defendants and interpret the word "authorized" consistently in both of the statutes at issue.

Defendants further argue that, under Pierce Downer's, the City did not "authorize" the gravel

mining operation by passing several zoning ordinances. Defendants argue that the City did not

actively participate in the project, because the City did not plan, design, fund, construct, or

participate in any of the mine's operations. Defendants maintain that the ordinances at issue did not

even allow the gravel mining project to begin, because Meyer still had to obtain a mining permit or

authorization from the IDNR, which issued the permit on March 3, 2006. Defendants argue that, if

any state agency authorized the gravel operation, it was the IDNR, not the City. Defendants

therefore maintain that the City was not required to consult under either the Preservation Act or the

Endangered Species Act, and that the trial court erred by granting summary judgment for plaintiffs

on this issue.

Plaintiffs argue that, unlike Pierce Downer's, where IDNR regulations expressly exempted

the subject action, in this case the IDNR regulations mandated a consultation. Plaintiffs point out

that section 1075.30(a) of Title 17 of the Administrative Code requires a consultation where the

proposed action is "authorized, funded, or performed" by a governmental entity and the action will

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change environmental conditions, adversely impact a listed species or its essential habitat, and/or

adversely affect a natural area. 17 Ill. Adm. Code §1075.30(a), amended at 19 Ill. Reg. 594 (eff.

January 9, 1995). Such actions include, among other things: (1) the "alteration, removal, excavation

***, or dredging of soil, sand, gravel, minerals, *** or naturally occurring material of any kind"; (2)

the "changing of existing drainage characteristics or sedimentation patterns"; (3) the "grading or

removal of materials that would alter existing topography"; and (4) the "creation of new, or the

increase in permanent barriers to the movement of wildlife." 17 Ill. Adm. Code §1075.30(a),

amended at 19 Ill. Reg. 594 (eff. January 9, 1995). Plaintiffs argue that all these conditions apply

because the gravel pit necessarily involves the excavation of gravel and the alteration of existing

topography, and because Meyer planned to make a lake on the property, which would change

drainage patterns and create a barrier to wildlife movement. Plaintiffs further point out that the

regulations also require a consultation if there is "an application for rezoning from a non-urban

classification to an urban classification" (17 Ill. Adm. Code §1075.30(a)(8), amended at 19 Ill. Reg.

594 (eff. January 9, 1995)), which occurred here.

Defendants do not dispute that the gravel operation falls within these enumerated activities,

though they dispute that the City "authorized" the project. They also note that in Pierce Downers we

stated that we did not believe that the legislature intended to require local governments to obtain

consultations every time they approved the construction of private projects on private property, and

that, to the extent IDNR regulations required this, the agency had exceeded its authority under the

Preservation Act. Pierce Downer's, 302 Ill. App. 3d at 298-99. Defendants argue that, under this

reasoning, any IDNR regulations requiring consultation in this case are invalid.

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Plaintiffs counter that, regardless of the regulations' validity, the City's actions also meet the

definition of "authorized" as interpreted by the Pierce Downer's court. We agree. As the trial court

noted, at one of the hearings on Meyer's petition for annexation, a land consultant serving as a

witness for Meyer testified that the City had a "2015 Plan" that was a comprehensive planning tool

for growth. That plan called for the property at issue to remain agricultural, adjacent to land planned

for low density residential property. The witness testified that the land had not been planned for

manufacturing or mining, because the City did not designate any areas for mining other than those

mines that already existed. The trial court further noted that, at another hearing, Meyer's attorney

stated that the City engineer and outside experts hired by the City reviewed preliminary mining plans

that Meyer submitted; that revisions were made to the plans; and that the City's outside experts also

reviewed the final plans. Following these discussions and public hearings, the City approved the

annexation agreement and incorporated the agreement through an ordinance. One of the recitals in

the annexation agreement states that the "Corporate Authorities *** have concluded that the

annexation of the Property to the City, under the terms and conditions hereinafter set forth, would

enable the City to control the development of the area and serve the best interest of the City." The

agreement imposes numerous requirements upon Meyer, such as the hours and days of business

operation, the placement of fencing and berms in certain areas, the payment of various fees, and the

eventual donation of 50 acres of land for a park.

Unlike in Pierce Downer's, where Downers Grove merely granted an amendment to a

hospital's planned unit development as a last step before construction began, here the City was

actively involved in the initial stages of planning the gravel mine, which in turn affected the City's

original plans for the land. The City reviewed preliminary and final plans submitted by Meyer,

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negotiated an annexation agreement under which Meyer was subject to various restrictions, and

rezoned the property to allow for the operation of the gravel mine. This type of active participation,

which influenced the planning of the gravel mine at early stages, clearly meets even the more

stringent definition of "authorization" as set forth in the Pierce Downer's majority opinion.

Therefore, the trial court correctly concluded that the statutes at issue required the City to consult

with the IDNR.

Defendants alternatively argue that the trial court erred in granting summary judgment for

plaintiffs, because the consultation process had already been completed by other parties. Defendants

point out that in 2001 Meyer requested an environmental consultation regarding its proposed gravel

mine under the statutes at issue. The IDNR reviewed the request, concluded at that time that the

project did not threaten any endangered species or natural areas, and then issued a written agency

report on September 12, 2002, completing and terminating the consultation process.

Defendants argue that the IDNR considered the environmental consultation requirement to

be complied with even though a private party, rather than a unit of local government, initiated the

consultation process. Defendants note that Todd Retting, the manager of the Division of Ecosystems

and Environment within the IDNR,1 testified in a deposition that most requests for consultations are

made by private parties rather than governmental entities and that the IDNR participates in these

consultations and terminates them on a regular basis without any participation by the applicable local

governments. Defendants maintain that the IDNR accepts third-party consultations and interprets

them as complying with the environmental consultation requirements of the Acts. Defendants cite

1 It appears from the record that the Division of Ecosystems and Environment is within the

OREP.

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case law stating that courts generally defer to an agency's interpretation of statutes that the agency

must enforce, due to the agency's experience and expertise in the area. See LaBelle v. State

Employees Retirement System of Illinois, 265 Ill. App. 3d 733, 735 (1994). Defendants argue that

the statutorily required environmental consultation for the subject property was successfully

completed and terminated in 2001, did not expire, and was never reopened by the IDNR, so the City

cannot be required to initiate another consultation process.

Defendants further argue that, even if we conclude that the 2001 consultation had somehow

expired or that the IDNR had properly reopened the process, a second consultation process with the

IDNR for the subject property was initiated, completed, and terminated in 2005 when the OMM

consulted with the OREP. On October 31, 2005, after raising issues and making recommendations

to the OMM, the OREP terminated the consultation process, and the OMM later issued Meyer a

mining permit. Defendants argue that, through the 2005 consultation, the IDNR had a second

opportunity to review the matter and determine whether listed species or natural areas were present

and to make recommendations regarding the possible impact of the gravel mine. Defendants

maintain that the statutory process for implementing the consultation was achieved and that it would

simply be pointless for the City to complete a consultation yet another time.

We note that, while defendants rely on Retting's testimony to show that the IDNR accepts

third-party requests for environmental consultations and interprets them as complying with the Acts,

Retting also testified that he was not aware of instances where a private party was obligated to

consult with the IDNR under the Acts and that there are instances where a unit of local government

is obligated to consult with the IDNR under the Acts. He did not know of any provision that would

allow the governmental entity to meet its consultation obligation if only a private party had engaged

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in a consultation. Retting also testified that the OMM initiated a consultation in 2005 to comply with

its obligations under the Acts. Thus, contrary to defendants' argument, Retting's testimony seems

to indicate that he did not believe that a private-party environmental consultation could satisfy a

governmental entity's obligation to consult with the IDNR. We further note that another OREP

employee of the IDNR, Keith Shank, testified in a deposition that the City was required to consult

with the IDNR about the gravel-pit project. It is undisputed that, in a November 5, 2004, e-mail,

Shank informed the City that it was obligated to consult. Moreover, while defendants argue that we

should defer to an agency's interpretation of its statutes, such deference occurs in the context of

specific administrative decisions (see, e.g., Fleming v. Retirement Board of the Firemen's Annuity

& Benefit Fund, 373 Ill. App. 3d 432, 436 (2007)) and is not based on one employee's deposition

testimony. Cf. Rochester Buckhart Action Group v. Young, 379 Ill. App. 3d 1030, 1042 (2008)

(Cook, J., dissenting) (court defers to findings of fact made by an administrative law judge at an

administrative hearing, not factual findings determined by an administrative agency employee).

Deference to an agency's interpretation of a statute also requires, as a prerequisite, that the statute

be ambiguous. Quality Saw & Seal, Inc. v. Illinois Commerce Comm'n, 374 Ill. App. 3d 776, 782

(2007).

Here, the relevant statutes are not ambiguous in their requirement that public agencies engage

in environmental consultations. Section 17 of the Preservation Act states that "[i]t shall be the

public policy of each agency of State or local government to utilize its authority in furtherance of the

purposes of this Act, and to evaluate, through a process of consultation with the Department, whether

the actions *** that are authorized, funded, or carried out by the agency of State or local government

are likely to result in the destruction or adverse modification of any natural area that is registered

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under this Act or identified in the Illinois Natural Areas Inventory." (Emphasis added.) 525 ILCS

30/17 (West 2004). Section 11(b) of the Endangered Species Act similarly states that "[i]t is the

public policy of all agencies of State and local governments to utilize their authorities in furtherance

of the purposes of this Act by evaluating through a consultation process with the Department

whether actions authorized, funded, or carried out by them are likely" to adversely impact

endangered species. (Emphasis added.) 520 ILCS 10/11(b) (West 2004). Accordingly, a

consultation between just a private party and the IDNR would not satisfy a governmental entity's

obligation under the Acts to evaluate, through a consultation process with the IDNR, whether the

action is likely to have a negative environmental impact. As a result, the City's obligations under

the Acts were not satisfied by the 2001 and 2005 evaluations initiated by other entities and in which

the City was not involved.

Our resolution of this issue is consistent with our decision in Pierce Downer's. There, the

hospital that owned the property initiated an IDNR environmental consultation. The consultation

was conducted and closed before the plaintiffs brought suit seeking to require Downers Grove to

consult with the IDNR. Pierce Downer's, 302 Ill. App. 3d at 293. Downers Grove's plan

commission expressly considered the consultation's results in reviewing Advocate's proposed

amendment to its planned unit development. Pierce Downer's, 302 Ill. App. 3d at 293. The

defendants therefore argued that based on these factors, and because Downers Grove had no direct

control over the project's design other than to ensure compliance with applicable local ordinances,

it would be a waste of time and resources to require another consultation, and the issue was moot.

Pierce Downer's, 302 Ill. App. 3d at 293.

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This court held that the issue was not moot, because neither Downers Grove nor the Board

had participated in the consultation process, and they continued to deny their obligation to

participate. Pierce Downer's, 302 Ill. App. 3d at 294. We "decline[d] the defendants' invitation to

speculate how the consultation procedure would have been affected by [Downers Grove's] and the

Board's participation." Pierce Downer's, 302 Ill. App. 3d at 294. We stated that the plaintiffs'

complaint required us to determine whether those governmental entities were obligated to engage

in the consultation and, if they were, to compel their participation. Pierce Downer's, 302 Ill. App.

3d at 294. In the instant case, we have determined that the City was required to engage in the

consultation because it "authorized" the project at issue. Like in Pierce Downer's, we also conclude

that consultations by other entities did not satisfy the City's obligations under the Acts.

We now turn to the issues plaintiffs raise in their appeal. Plaintiffs argue that the trial court

erred in granting defendants' motion to dismiss their request to declare void City ordinance Nos.

2004-159, 2004-160, and 2004-161. Plaintiffs alternatively argue that the trial court erred by

denying their motion to amend their complaint to request that the City pass new ordinances voiding

the ordinances at issue.

The trial court did not specifically state whether it was granting defendants' motion to dismiss

under section 2--615 or section 2--619 of the Code. However, we agree with plaintiffs that the trial

court's statement that it did not believe that the Acts gave it authority to void the ordinances indicates

that it was granting the motion to dismiss under section 2--615. A section 2--615 motion to dismiss

attacks the legal sufficiency of the complaint and should be granted only where no set of facts could

be proven under the pleadings that would entitle the plaintiff to relief. Imperial Apparel, Ltd. v.

Cosmo's Designer Direct, Inc., 227 Ill. 2d 381, 392 (2008). The grant of a section 2--615 motion to

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dismiss presents a question of law, which we review de novo. Imperial Apparel, Ltd., 227 Ill. 2d at

392. The construction of a statute is also a question of law subject to de novo review. Wade v. City

of North Chicago Police Pension Board, 226 Ill. 2d 485, 510-11 (2007). A trial court's denial of a

motion for leave to amend a pleading will not be disturbed absent an abuse of discretion. County

of Cook ex rel. Rifkin v. Bear Stearns & Co., 215 Ill. 2d 466, 474 (2005).

Plaintiffs argue that both Acts require that a local government conduct the consultation with

the IDNR before the local government takes the action that triggers the duty to undertake the

consultation. Plaintiffs maintain that the purpose of such a requirement is so that consultation can

be part of the decision-making process. Plaintiffs note that section 17 of the Preservation Act states,

"The evaluation shall be conducted early in the planning of a proposed action" (525 ILCS 30/17

(West 2004)), and they also note that both Acts expressly provide for citizens to bring mandamus

suits to enforce the consultation requirement. Plaintiffs argue that a necessary corollary to the

requested writ of mandamus ordering the City and its elected officials to consult with the IDNR is

that the underlying ordinances that were passed in violation of the consultation requirement be

voided, so that defendants could consider the issues contained in the ordinances in light of the results

of the IDNR consultation. According to plaintiffs, to hold otherwise, as the trial court did, would

render the citizen-suit mandamus provisions meaningless.

The fundamental rule of statutory construction is to ascertain and give effect to the

legislature's intent. Wisniewski v. Kownacki, 221 Ill. 2d 453, 460 (2006). The best indication of

that intent is the statute's language when given its plain and ordinary meaning. Wisniewski, 221 Ill.

2d at 460. Where the statute's language is clear and unambiguous, we must apply it without resorting

to other statutory construction aids. Wisniewski, 221 Ill. 2d at 460. Here, section 17 provides that

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"any affected person may seek a writ of mandamus to compel an agency of State or local government

to engage in the evaluation and study required by this Section." 525 ILCS 30/17 (West 2004).

Similarly, section 11(b) of the Endangered Species Act provides that it "shall be enforceable only

by writ of mandamus." 520 ILCS 10/11(b) (West 2004).

Defendants argue, and we agree, that the language of these statutes is clear and unambiguous

in that the Acts expressly provide for a cause of action in the form of mandamus to compel a

governmental entity to complete an environmental consultation and do not expressly provide for

any other cause of action. Setting aside for the moment plaintiffs' argument that mandamus can

include a declaration that the prior government action be voided, we consider plaintiffs' argument

that the Preservation Act's permissive language cannot be construed to limit relief to mandamus.

Plaintiffs note that, while section 11(b) of the Endangered Species Act states that its policy "shall

be enforceable only by writ of mandamus" (emphasis added) (520 ILCS 10/11(b) (West 2004)),

section 17 of the Preservation Act states that "any affected person may seek a writ of mandamus"

(emphasis added) (525 ILCS 30/17 (West 2004)). Plaintiffs argue that, because the use of the word

"may" is permissive, section 17 does not preclude pursuit of any other causes of action or relief.

Plaintiffs' argument is unavailing because, where a statute lists the thing or things to which

it refers, the inference is that all omissions are exclusions, even in the absence of limiting language.

People v. O'Connell, 227 Ill. 2d 31, 37 (2007). Similarly, the maxim of construction inclusio unius

est exclusio alterius means that the inclusion of one thing implies the exclusion of another. In re

Marriage of Knoerr, 377 Ill. App. 3d 1042, 1048 (2007). Here, because section 17 states that a

person may seek a writ of mandamus to compel a consultation but does not list any other remedies,

we interpret the statute to limit its citizen-suit remedy to a writ of mandamus. Plaintiffs rely on

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Nottage v. Jeka, 172 Ill. 2d 386 (1996), where our supreme court held that a statute allowing

attorneys to bring claims for fees did not preclude an attorney from pursuing a common-law action

for contract damages. Nottage, 172 Ill. 2d at 392-93. Here, unlike in Nottage, plaintiffs have

sought relief under only the statutes at issue, and those statutes allow for only mandamus relief.

We now return to plaintiffs' argument that the court has the power to declare an ordinance

void where that is a necessary corollary of a writ of mandamus. Plaintiffs cite People ex rel. Klaeren

v. Village of Lisle, 202 Ill. 2d 164, 178 (2002), for the proposition that, where proper procedures are

not followed in passing an ordinance, the ordinance is void. Citing People ex rel. J.C. Penney

Properties, Inc. v. Village of Oak Lawn, 38 Ill. App. 3d 1016, 1021 (1976), plaintiffs argue that

Illinois has long recognized that a mandamus action may have a prayer for declaratory relief.

Plaintiffs further argue that the Code envisions that a claim for mandamus can include those matters

germane to the distinctive purpose of the proceeding, in that section 14--103 of the Code, which

relates to actions for mandamus, states that "[n]o matters not germane to the distinctive purpose of

the proceeding shall be introduced by joinder, counterclaim or otherwise." 735 ILCS 5/14--103

(West 2004). Plaintiffs maintain that, in this case, the distinctive purpose of the mandamus

provisions in both sections 17 and 11(b) is to order defendants to meaningfully comply with the

statutory requirement to consult with the IDNR before passing ordinances annexing the subject

property or granting conditional uses or variances for the property. Plaintiffs argue that such a

distinctive purpose cannot be achieved if the ordinances passed in violation of the Acts are not

voided, since a post-hoc consultation would not allow defendants to incorporate the IDNR's

recommendations into the annexation agreement, conditional use permit, or variance. Plaintiffs refer

to the principle of statutory construction that, in determining legislative intent, courts may consider

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the reason and necessity of the law, the evils to be remedied, and the goals to be achieved. See

People ex rel. Sherman v. Cryns, 203 Ill. 2d 264, 280 (2003).

Defendants argue that municipal ordinances are presumptively valid, though a party can bring

a cause of action to invalidate a municipal ordinance if, for example, the ordinance is

unconstitutional or the municipality did not comply with required constitutional or statutory

procedures in enacting the ordinance. Defendants point out that in Klaeren the plaintiffs asserted

a violation of their due process rights because they were denied the opportunity to cross-examine

witnesses at a public zoning hearing. Klaeren, 202 Ill. 2d at 185. Defendants argue that here

plaintiffs have not alleged such procedural or constitutional infirmities and instead rely solely on the

Acts, which do not supply a basis by which to invalidate a municipality's ordinance.

We agree with defendants' argument. We further note that plaintiffs' reference to section

14--103 of the Code is entirely unconvincing, as that section deals with a defendant's answer in a

mandamus proceeding. In any event, the question here is not whether a plaintiff could have an

ordinance declared void through any type of mandamus action, but rather whether the Acts'

provisions would allow the trial court to declare the City's ordinances void. As there is no common-

law right to require a governmental entity to engage in environmental consultations, the Acts are in

derogation of the common law. Statutes in derogation of the common law must be strictly construed

in favor of those sought to be subjected to the statute's requirements. In re W.W., 97 Ill. 2d 53, 57

(1983). "[S]uch statutes will not be extended any further than what the language of the statute

absolutely requires by its express terms or by clear implication." In re W.W., 97 Ill. 2d at 57.

While section 17 of the Preservation Act states that "[t]he evaluation shall be conducted early

in the planning of a proposed action," its mandamus provision states that "any affected person may

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seek a writ of mandamus to compel an agency of State or local government to engage in the

evaluation and study required by this Section." (Emphasis added.) 525 ILCS 30/17 (West 2004).

Construing this language strictly in favor of defendants, plaintiffs can seek only to have defendants

engage in the evaluation, and section 17 does not allow plaintiffs to obtain the broader remedy of

having ordinances declared void. We note that the remedy provided to citizens by section 17 stands

in stark contrast to the broad power granted to the Attorney General and State's Attorneys by section

21 of the Preservation Act, under which they may "institute a civil action for an injunction, or other

appropriate legal action, to restrain violations of this Act or of any rule." (Emphasis added.) 525

ILCS 30/21 (West 2004).

Section 11(b) of the Endangered Species Act has a more general remedy provision than

section 17 of the Preservation Act, in that section 11(b) states that its "policy shall be enforceable

only by writ of mandamus." 520 ILCS 10/11(b) (West 2004). However, construing the statute's

language strictly in defendants' favor, we find nothing in the statute that would allow the trial court

to void the City's ordinances in an action brought under that section. Moreover, in Glisson v. City

of Marion, 188 Ill. 2d 211 (1999), our supreme court stated that section 11(b) "does not contain any

language that expressly grants a private cause of action for a violation of the [Endangered Species]

Act, with the exception of allowing the enforcement of the consultation process by a writ of

mandamus." (Emphasis added.) Glisson, 188 Ill. 2d at 223. This statement supports our conclusion

that section 11(b) does not provide any avenues of relief for a private citizen beyond requiring the

governmental entity to engage in a consultation. Accordingly, we conclude that the trial court did

not err in granting defendants' motion to dismiss plaintiffs' request to have the ordinances declared

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void, nor did it abuse its discretion in denying plaintiffs' motion to amend their complaint to request

that the City pass a new ordinance voiding the previous ordinances.

Though plaintiffs argue that such an interpretation renders the citizen-suit mandamus

provisions meaningless, we disagree. While an environmental consultation may be most effective

early in the planning process, we cannot say that it would have no value later on. Indeed, here the

2002 evaluation obtained by Meyer indicated that there were no endangered species or natural areas,

whereas the 2005 evaluation obtained by the OMM indicated the presence of two threatened species

that could be adversely affected by the project. Though the City will not be able to incorporate the

results of a new evaluation into the annexation negotiations with Meyer, the City could still request

that Meyer consider the results, and the City and Meyer may engage in future negotiations where the

City could seek to have Meyer implement particular recommendations. Finally, by being ordered

to engage in an evaluation, from this point forward the City would presumably seek to fulfill its

statutory obligations and avoid future litigation by obtaining evaluations early in the process of other

actions that fall under the Acts.

III. CONCLUSION

For the foregoing reasons, we affirm the judgment of the McHenry County circuit court.

Affirmed.

McLAREN and ZENOFF, JJ., concur.

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