Pesticide Public Policy Foundation v. Village of Wauconda

510 N.E.2d 858, 117 Ill. 2d 107, 17 Envtl. L. Rep. (Envtl. Law Inst.) 21174, 109 Ill. Dec. 790, 26 ERC (BNA) 1296, 1987 Ill. LEXIS 200
CourtIllinois Supreme Court
DecidedJune 16, 1987
Docket63297
StatusPublished
Cited by34 cases

This text of 510 N.E.2d 858 (Pesticide Public Policy Foundation v. Village of Wauconda) is published on Counsel Stack Legal Research, covering Illinois Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pesticide Public Policy Foundation v. Village of Wauconda, 510 N.E.2d 858, 117 Ill. 2d 107, 17 Envtl. L. Rep. (Envtl. Law Inst.) 21174, 109 Ill. Dec. 790, 26 ERC (BNA) 1296, 1987 Ill. LEXIS 200 (Ill. 1987).

Opinion

JUSTICE MILLER

delivered the opinion of the court:

Plaintiff, the Pesticide Public Policy Foundation, filed suit in the United States District Court for the Northern District of Illinois, Eastern Division, challenging the validity of a pesticide regulation ordinance enacted by defendant village of Wauconda, Illinois. The Federal district court found that the Wauconda ordinance was preempted by the Illinois Pesticide Act of 1979 (Ill. Rev. Stat. 1983, ch. 5, pars. 801 through 828) and the Structural Pest Control Act (Ill. Rev. Stat. 1983, ch. 111½, pars. 2201 through 2225); the district court. granted plaintiff’s motion for summary judgment on its preemption claim, and held the ordinance void ab initio. The village appealed the district court’s order to the United States Court of Appeals for the Seventh Circuit. Noting that the case presented unresolved issues of Illinois law which might control the outcome, the Seventh Circuit court requested that this court consider two questions of State law certified by the Seventh Circuit. We accepted the certification, pursuant to our Rule 20 (103 Ill. 2d R. 20).

The plaintiff is a nonprofit corporation whose members include professional lawn care, arboriculture, and pest control operators. Plaintiff states that its members serve customers within the village limits of defendant village of Wauconda.

The village is a non-home-rule unit of local government, which enacted its ordinance No. 1984 — 0—31 to regulate pesticide use in the village. The ordinance prohibits “users of pesticides” from applying pesticides without registering in the village clerk’s office and obtaining a permit. The ordinance defines “user of pesticides” as a person engaged in pesticide application for hire, or the landlord or tenant of a public building. To obtain a permit, the user must sign an application bearing his business name, address, telephone number, and trade names of pesticides to be used, and must furnish a valid State license. The user also must pay a $25 annual fee. The ordinance requires the posting of certain notices following indoor and outdoor pesticide application, and application to a lake. The ordinance also restricts application by fogging, and prohibits application of pesticides into the atmosphere when the wind velocity exceeds 10 miles per hour.

The plaintiff filed a five-count complaint in the United States District Court for the Northern District of Illinois, Eastern Division, contesting the ordinance. Named as defendants were the village of Wauconda, the village president, and the trustees of the village. The complaint alleged the ordinance was preempted by both Federal and State statutes, was beyond the power of Wauconda as a non-home-rule unit in Illinois, violated due process and equal protection under the Federal and State constitutions, and violated the commerce clause of the Federal Constitution. The Federal district court granted plaintiff’s motion for summary judgment on the State preemption claim, concluding that the Wauconda ordinance had been preempted by the Illinois Pesticide Act of 1979 (Ill. Rev. Stat. 1983, ch. 5, pars. 801 through 828), and the Illinois Structural Pest Control Act (Ill. Rev. Stat. 1983, ch. 111½, pars. 2201 through 2225). The district court ruled that the ordinance was void, and enjoined the village from enforcing the ordinance. The court found, however, that the plaintiff lacked standing to seek recovery of the costs and expenses incurred by plaintiff’s members in complying with the ordinance. The court also held that the ordinance did not violate the equal protection or due process clauses of the Federal or State constitutions. The court did not address the Federal preemption claim or the claim that the village lacked authority to adopt the ordinance at issue.

The defendants appealed to the United States Court of Appeals for the Seventh Circuit. Recognizing that issues of Illinois law may determine the outcome of the case, the circuit court certified the following questions of law for our consideration:

“1. Is Wauconda, a non-home rule unit, authorized to enact the ordinance at issue under either section 11 — 20—5 or section 11 — 19.1—11 of the Illinois Municipal Code?
2. Is the ordinance preempted by the Illinois Pesticide Act and the Illinois Structural Pest Control Act?”

This court accepted the certified questions under Supreme Court Rule 20 (103 Ill. 2d R. 20).

I

Our analysis must begin by determining whether Wauconda had the power to adopt ordinance No. 1984— 0 — 31. Only if we answer this question in the affirmative must we consider whether the village’s power is preempted by either of the two Illinois acts regulating pesticides. As the Seventh Circuit court recognized, the municipality’s power to act is an issue entirely separate from the question of whether this power has been preempted or superceded by the superior authority of another lawmaking body.

In contrast to the broad powers exercised by home rule units in Illinois (see Ill. Const. 1970, art. VII, sec. 6(a)), Wauconda, as a non-home-rule unit, has only those powers granted to it by law, and certain powers enumerated in article VII, section 7, of the Illinois Constitution (Ill. Const. 1970, art. VII, sec. 7). The commentary to section 7 notes that this section maintains the concept of DiHon’s Rule with respect to non-home-rule units of local government. (Ill. Ann. Stat., 1970 Const., art. VII, sec. 7, Constitutional Commentary, at 36 (Smith-Hurd 1971); see O’Fallon Development Co. v. City of O'Fallon (1976), 43 Ill. App. 3d 348, 352.) Dillon’s Rule provides that municipalities possess only those powers expressly granted, powers incident to those expressly granted, and powers indispensable to the accomplishment of the declared objects and purposes of the municipal corporation. (Consumers Co. v. City of Chicago (1924), 313 Ill. 408, 411-12; 1 J. Dillon, Municipal Corporations sec. 237 (5th ed. 1911).) Because pesticide regulation is not indispensable to the purposes of the village, the village must point to some statute which expressly or impliedly authorizes the village to enact the ordinance at issue. As indicated by the first of the questions certified by the Seventh Circuit, the village contends that two statutes, sections 11— 19.1 — 11 and 11 — 20—5 of the Illinois Municipal Code (Ill. Rev. Stat. 1983, ch. 24, pars. 11 — 19.1—11, 11 — 20— 5), authorize its enactment of the ordinance.

For the purposes of lessening or preventing the discharge of air contaminants, section 11 — 19.1—11 of the Municipal Code authorizes city or village authorities to regulate by ordinance any activity, equipment, or use of land causing air contamination. The Wauconda ordinance, however, is not intended to lessen or prohibit the discharge of pesticides into the air. The ordinance bans application of pesticides by fogging within 10 feet of a property line, but this activity may be carried on elsewhere. And, while the ordinance prohibits the introduction of pesticides into the atmosphere when the wind velocity exceeds 10 miles per hour, the intended amount of pesticide may be applied at other times.

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510 N.E.2d 858, 117 Ill. 2d 107, 17 Envtl. L. Rep. (Envtl. Law Inst.) 21174, 109 Ill. Dec. 790, 26 ERC (BNA) 1296, 1987 Ill. LEXIS 200, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pesticide-public-policy-foundation-v-village-of-wauconda-ill-1987.