Filed 3/14/08             NO. 4-07-0682

                     IN THE APPELLATE COURT

                           OF ILLINOIS

                         FOURTH DISTRICT

THE ROCHESTER BUCKHART ACTION GROUP,   )  Appeal from
          Plaintiff-Appellee,          )  Circuit Court of
          v.                           )  Sangamon County
ROBERT YOUNG,                          )  No. 07MR208
          Defendant-Appellant.         )
                                       )  Honorable
                                       )  Leslie J. Graves,
                                       )  Judge Presiding.
______________________________________________________________

          JUSTICE TURNER delivered the opinion of the court:

          In May 2007, plaintiff, Rochester Buckhart Action

Group, filed a motion for preliminary injunction against defen-

dant, Robert Young, to enjoin him from constructing or operating

a hog farm on his property pending the outcome of litigation.    In

May 2007, the trial court granted the preliminary injunction.    In

August 2007, the court denied defendant's motion to vacate.

          On appeal, defendant argues the trial court erred in

failing to vacate the preliminary injunction.   We reverse and

remand.

                          I. BACKGROUND

          Plaintiff is an Illinois general not-for-profit corpor-

ation organized to critically examine and oppose activities that

adversely influence the use and value of property and the quality

of health and the environment in the Rochester and Buckhart areas

of Sangamon and Christian Counties.    Defendant owns property in

Sangamon County and operates a dairy farm, consisting of approxi-

mately 40 dairy cows at any given time.    Defendant had previously
had a hog-confinement building on the property for as many as

2,300 animals, but it was demolished in 2004.

            In April 2007, plaintiff filed a three-count complaint

against defendant for declaratory judgment (count I), nuisance

(count II), and public nuisance (count III).       Plaintiff alleged

defendant notified the Illinois Department of Agriculture

(Department) in February 2006 of his intent to construct a hog

finishing operation to house 3,750 hogs at his property.       In his

notice of intent to construct, defendant stated the proposed

facility was an expansion of an existing facility and would not

be classified as a "new facility."       He proposed to construct a

finisher building with a waste-storage structure under the

building.    He noted the existing structure "has been razed."     The

facility would be within 1,200 feet of an occupied residence and

within 3,700 feet of Buckhart.    Defendant admitted the location

of the proposed facility would violate setback requirements if he

were constructing a "new facility."

            In April 2006, the Department informed defendant that

the setback requirements had been met.       Thereafter, the Depart-

ment reviewed construction plans and conducted preconstruction

site inspections with the understanding defendant's proposal did

not meet the definition of a "new facility."

            Plaintiff claimed the proposed hog operation would

produce "massive volumes of feces, urine, blood[,] and other

waste," cause "extremely unpleasant odors," and "attract insects

and disease vectors."    Plaintiff alleged persons residing and


                                 - 2 -
businesses operating near the facility would be subject to odors

and airborne contaminants that present a high probability of

injuring their health and welfare and a diminution of property

values.

           In May 2007, plaintiff filed a motion for preliminary

injunction on count I of the complaint citing the Livestock

Management Facilities Act (Act) (510 ILCS 77/1 through 999 (West

2006)).   Plaintiff stated the Act provided minimum setbacks,

stiffer design requirements, and an opportunity for public

notice, comment, and hearing when a "new facility" is contem-

plated.   Plaintiff alleged defendant failed to notify the Depart-

ment of his intent to construct a "new facility" and failed to

subsequently file a registration with the Department.    Having

failed to comply with the Act's provisions, he was not authorized

to construct the facility.   Plaintiff also alleged that even if

defendant was expanding an existing facility, it remained a new

facility because he was expanding the number of animal units to

be confined on the property.   Plaintiff sought a preliminary

injunction enjoining defendant from constructing and operating a

hog farm pending the outcome of the litigation.

           In May 2007, the trial court granted the motion for

preliminary injunction.   The court found plaintiff had shown

"there is a fair question that [p]laintiff will succeed on the

merits in claiming [d]efendant is constructing a 'new'

livestock[-]management facility as defined in the Act."    Further,

plaintiff would suffer irreparable harm if an injunction did not


                               - 3 -
issue and no adequate remedy at law or in equity existed.    The

court enjoined defendant from continuing to construct a hog-

confinement building on his property pending further order.

            In June 2007, defendant answered the complaint, raising

as an affirmative defense that he was not constructing a "new"

livestock-management facility but expanding an existing facility.

In July 2007, defendant filed a motion to vacate the preliminary

injunction, stating additional evidence had developed establish-

ing he was expanding an existing facility and the fixed capital

costs of the expansion did not exceed 50% of the fixed capital

costs of replacing the existing facility with an entirely new

one.

            Defendant attached the deposition of Warren Goetsch to

his motion to vacate.    Goetsch, an agricultural engineer, testi-

fied he worked as the Department's bureau chief of environmental

programs.    He stated a review of defendant's information and

calculations indicated a plan for an expansion of an existing

facility.    The Department determined defendant's proposed project

came in just below 41% of the fixed capital cost of replacing the

entire existing facility, thereby taking the project outside the

definition of a "new facility."

            Defendant also filed an affidavit stating the entire

subject farm property had previously been designated by the

Department as a single livestock-management facility.    Further,

the property had historically housed "pasture and dairy facili-

ties for dairy cows, both open and closed facilities for raising


                                - 4 -
hogs, and a hog[-]confinement building for the finishing of hogs,

which numbered as high as 2,300 animals."     The hog-confinement

building had outlived its useful life and was demolished in 2004

to make way for the construction of a replacement building.       In

June 2006, defendant obtained financing for its construction.

           In August 2007, the trial court denied defendant's

motion to vacate the preliminary injunction.     Defendant then

filed a notice of interlocutory appeal pursuant to Supreme Court

Rule 307 (188 Ill. 2d R. 307).

                           II. ANALYSIS

           Defendant argues the trial court erred in declining to

vacate the preliminary injunction, thereby enjoining the comple-

tion of his hog-confinement building.     We agree.

           "The purpose of the preliminary injunction is to

preserve the status quo pending a decision on the merits of a

cause."   Callis, Papa, Jackstadt & Halloran, P.C. v. Norfolk &

Western Ry. Co., 195 Ill. 2d 356, 365-66, 748 N.E.2d 153, 159

(2001).

                "To establish entitlement to a prelimi-

           nary injunctive relief, the plaintiff must

           demonstrate (1) a clearly ascertainable right

           that needs protection; (2) irreparable harm

           without the protection of an injunction; (3)

           no adequate remedy at law for plaintiff's

           injury; and (4) a substantial likelihood of

           success on the merits in the underlying ac-


                                 - 5 -
          tion."   Franz v. Calaco Development Corp.,

          322 Ill. App. 3d 941, 946, 751 N.E.2d 1250,

          1255 (2001).

          The trial court has the inherent power during the

pendency of a case to issue, modify, or vacate a preliminary

injunction.   Patrick Media Group, Inc. v. City of Chicago, 252

Ill. App. 3d 942, 946, 626 N.E.2d 1062, 1065 (1993).    The court

has the power "to dissolve a preliminary injunction absent change

of facts or law from the time of issuance to the time of dissolu-

tion, provided a sufficient basis exists to support dissolution."

Patrick, 252 Ill. App. 3d at 946, 626 N.E.2d at 1065.    On appeal,

a trial court's decision to uphold or dissolve the injunction

will be not be reversed absent an abuse of discretion.    Patrick,

252 Ill. App. 3d at 946, 626 N.E.2d at 1065.

          Here, the trial court found plaintiff had a clearly

ascertainable right in need of protection, namely the rights of

citizens of Sangamon County and nearby residents to be afforded

the protections and procedural rights of the Act; irreparable

harm would result if an injunction did not issue; no adequate

remedy at law or in equity existed; and plaintiff showed a fair

question it would succeed on the merits.

          The issue raised in defendant's motion to vacate was

whether a fair question existed that plaintiff would succeed on

the merits in claiming defendant was constructing a new

livestock-management facility as defined in the Act.    The Act

imposes certain requirements on new facilities.   Any new facility


                               - 6 -
must comply with certain setback requirements (510 ILCS 77/35(c)

(West 2006)), have the proposal subjected to public notice and

informational meetings (510 ILCS 77/12 (West 2006)), and adhere

to construction restrictions and siting prohibitions (510 ILCS

77/13(b) (West 2006)).

          The issue of whether defendant's proposal constitutes a

new facility or simply the expansion of an existing one depends

on the definition of "new facility" as set forth in the Act.

               "'New facility' means a livestock[-]man-

          agement facility or a livestock waste[-]han-

          dling facility the construction or expansion

          of which is commenced on or after the effec-

          tive date of this Act [May 21, 1996].    Ex-

          panding a facility where the fixed capital

          cost of the new components constructed within

          a 2-year period does not exceed 50% of the

          fixed capital cost of a comparable entirely

          new facility shall not be deemed a new facil-

          ity as used in this Act."    510 ILCS 77/10.45

          (West 2006).

          At the time of the lawsuit, defendant's farm property

included a dairy-cow operation.   A "'[l]ivestock[-]management

facility' means any animal feeding operation, livestock shelter,

or on-farm milking and accompanying milk-handling area."   510

ILCS 77/10.30 (West 2006).   Plaintiff does not argue the dairy-

cow operation does not constitute a livestock-management facil-


                               - 7 -
ity.    Instead, plaintiff claims defendant proposed to construct a

new facility for the hogs.    Defendant's facility had at one time

utilized a hog-confinement building and pit with over 2,000 hogs.

By 1999, the hog-confinement building had outlived its useful

life, and it was demolished in 2004 to make way for a replace-

ment.    Defendant proposed construction of the replacement build-

ing in 2006.

            The evidence before the trial court on the motion to

vacate indicates defendant's proposed construction did not

constitute a "new" facility.    Instead, the facility already

existed.    Whether considering the dairy-cow operation alone, or

together with the dormant hog operation, a livestock-management

facility was then operating.    This is not a situation where an

applicant proposed to build "an entirely new facility," as

queried in the Department's application form, and construct that

facility from the ground up on a barren piece of land.

            Plaintiff argues defendant is proposing a new facility,

not simply spreading out his existing dairy operation.    However,

defendant sought to build a structure to house hogs on top of a

waste-storage containment area at the site where a similar

structure had been demolished.    Moreover, the Act does not

differentiate among species in defining new facilities or live-

stock-management facilities, referring only to "animals" or

"livestock."    Goetsch, the Department's bureau chief of environ-

mental programs, pointed out the Act is "species neutral."

Nowhere in the Act can plaintiff show that introducing, or


                                 - 8 -
reintroducing, as is the case here, a new or different species at

a facility constitutes the establishment of a new facility.

Further, the Act does not consider the number of animals present

or being added to a facility in determining whether a facility is

new.   Plaintiff's claim that different facilities would result--

that being an animal feeding operation and the other a milking

operation--fails to recognize that cows are fed to produce milk.

Here, the facility was not new, in terms of infancy, but was the

expansion of an existing operation.

           An expansion could still be deemed a "new facility" if

certain amounts are expended as stated in the Act.   "Expanding a

facility where the fixed capital cost of the new components

constructed within a 2-year period does not exceed 50% of the

fixed capital cost of a comparable entirely new facility shall

not be deemed a new facility as used in this Act."   510 ILCS

77/10.45 (West 2006).

           In the case sub judice, Goetsch found a review of

defendant's application indicated a plan for the expansion of an

existing facility.   Based on defendant's cost projections, the

proposed project came in slightly below 41% of the fixed capital

cost of replacing the entire existing facility.   Thus, the

expansion project did not meet the definition of "new facility"

since the costs did not exceed 50% of the cost of a comparable

entirely new facility.

           We note the General Assembly found the current trend in

the livestock industry was "for larger concentration of animals


                               - 9 -
at a livestock[-]management facility due to various market

forces."    510 ILCS 77/5(a)(4) (West 2006).   With an increasing

number of animals comes the "potential for greater impacts on the

immediate area."    510 ILCS 77/5(a)(6) (West 2006).   "[T]he

purpose of the Act is twofold: to promote the livestock industry

and to make sure that the livestock industry is a good neighbor

to nearby residents."    Nickels v. Burnett, 343 Ill. App. 3d 654,

660, 798 N.E.2d 817, 823-24 (2003); see also 510 ILCS 77/5(b)

(West 2006).    Although plaintiff no doubt has valid concerns

about the arrival of 3,750 hogs in the neighborhood, the facts in

this case do not establish the construction of a new facility as

defined by the Act.    In arguing a new facility was being con-

structed, plaintiff's contentions regarding the different species

involved here and the increased number of animals on-site are not

covered in the Act and are matters better suited for the General

Assembly in determining the restrictions and requirements for the

construction of new facilities and the expansion of existing

ones.   As defendant's proposal does not show the construction of

a new facility, the trial court erred in denying the motion to

vacate.    Accordingly, the preliminary injunction must be dis-

solved.    We make no determination as to the merits of any current

or future issues before the trial court.

                           III. CONCLUSION

            For the reasons stated, we reverse the trial court's

judgment and remand for further proceedings.

            Reversed and remanded.


                               - 10 -
APPLETON, P.J., concurs.

COOK, J., dissents.




                      - 11 -
            JUSTICE COOK, dissenting:

            I respectfully dissent and would affirm the trial

court's decision.

            A motion to vacate a preliminary injunction, which the

majority wishes to allow, requires a defendant to prove that the

plaintiff presents no "fair question" as to the legal rights

involved.    People ex rel. Stoney Island Church of Christ v.

Mannings, 156 Ill. App. 3d 356, 362, 509 N.E.2d 572, 576 (1987).

Defendant has not met this standard.

            The majority's order turns on Department manager

Goetsch's deposition and attached Department documentation,

submitted subsequent to the trial court's granting of the injunc-

tion, indicating that defendant's proposed construction is not a

"new" facility.     The Act defines a "new" facility as follows:

                   "[A] livestock[-]management facility or

            a live-stock waste[-]handling facility the

            construction or expansion of which is com-

            menced on or after the effective date of this

            Act.   Expanding a facility where the fixed

            capital cost of the new components

            constructed within a 2-year period does not

            exceed 50% of the fixed capital cost of a

            comparable entirely new facility shall not be

            deemed a new facility as used in this Act."

            510 ILCS 77/10.45 (West 2006).

Goetsch stated in his deposition that defendant's project consti-


                                 - 12 -
tuted an "expansion," the cost of which was only 41% of the cost

to complete an entirely new structure.

          The notice and processing requirements differ greatly

depending on whether the proposed construction qualifies as a

"new" facility.    Section 11(a) and section 12 of the Act control

the notice and processing requirements for an owner's application

to construct a "new" facility serving 1,000 or more animal units

(or a facility that utilizes a lagoon).    510 ILCS 77/11(a), 12

(West 2006).    One thousand animal units equals about 714 milking

dairy cows or 2,500 swine weighing over 55 pounds.    510 ILCS

77/10.10 (West 2006).    Under section 11(a), the owner of any

proposed facility, regardless of whether it is "new," must file a

notice of intent to construct with the Department and include

information regarding setback requirements (for a "new" facility)

or maximum feasible location requirements (for a facility that is

not "new").    510 ILCS 77/11(a) (West 2006).   Then, under section

12, the Department sends a copy of the notice form that was filed

under section 11(a) to the local county board, which will in turn

publish notice of the proposed new facility, essentially inviting

public comment during a 30-day review period.    510 ILCS 77/12(a)

(West 2006).    The county board, or 75 county residents, may

request that the Department hold an informational hearing where

the owner attends and answers questions.    510 ILCS 77/12(a) (West

2006).   The county board then submits a nonbinding recommendation

to the Department containing a statement as to whether the

proposed facility achieves the eight siting criteria outlined in


                               - 13 -
subsection 12(d).   510 ILCS 77/12(d) (West 2006).   Among the most

relevant siting criteria are whether (1) the design, location,

and proposed operation will protect the environment by being

consistent with this Act; (2) the facility is located within a

100-year floodplain or otherwise environmentally sensitive area

and the construction plans are consistent with the goal of

protecting the safety of the area; (3) the owner has submitted

plans for operation that minimize the likelihood of any environ-

mental damage to the surrounding area from spills, runoff, and

leaching; (4) the construction or modification of a new facility

is consistent with existing or projected community growth as they

pertain to applicable zoning and setback requirements for popu-

lated areas as defined by this Act; (5) the location minimizes

any incompatibility with the surrounding area's character; and

(6) odor control plans are reasonable.   See 510 ILCS 77/12(d)

(West 2006).

          In our case, the Department followed section 11(b) in

processing defendant's application to construct, rather than

section 12, because the Department was operating under the

assumption that defendant's project was not a "new" facility.

Section 11(b) applies to proposed construction projects that are

not subject to section 12 (i.e., they are not "new" and they do

not utilize a lagoon).   The section 11(b) requirements are less

strenuous than those in section 12; they require only that the

construction plans and design specifications of the proposed

structure be filed with the Department within 10 calendar days of


                              - 14 -
the anticipated dates of construction and that the Department

review the documents to determine if all information has been

submitted or if clarification is needed.   510 ILCS 77/11(b) (West

2006).   The Department then has 15 calendar days within receipt

of the owner's notice to notify the owner that construction may

begin or that clarification is needed.   510 ILCS 77/11(b) (West

2006).

           In addition to the more strenuous notice and processing

requirements placed on "new" facilities as described in section

12, "new" facilities also are subject to additional setback (510

ILCS 77/35(c) (West 2006)) and design requirements concerning

flood protection and other environmentally sensitive areas (510

ILCS 77/13(b) (West 2006)).   Another way of looking at the

question posed by the plaintiff here is not necessarily whether

defendant's project constitutes a "new" facility, but whether it

is the sort of project that legislature intended to be subjected

to more strenuous notice, processing, and setback requirements as

described above.

           We find M.I.G. Investments, Inc. v. Environmental

Protection Agency, 122 Ill. 2d 392, 523 N.E.2d 1 (1988), to be

instructive.   In M.I.G., the owner of a waste-disposal landfill

sought a permit to increase the landfill's maximum elevation.

The owner argued that the vertical expansion of an existing

pollution-control facility did not constitute a "new" facility

under section 3(x)(2).   M.I.G., 122 Ill. 2d at 395-96, 523 N.E.2d

at 2, citing Ill. Rev. Stat. 1985, ch. 111 1/2, par. 1003(x)(2).


                              - 15 -
Section 3(x)(2) defined a "'new regional pollution[-]control

facility'" as "'the area of expansion beyond the boundary of a

currently permitted regional pollution[-]control facility.'"

M.I.G., 122 Ill. 2d at 395, 523 N.E.2d at 2, quoting Ill. Rev.

Stat. 1985, ch. 111 1/2, par. 1003(x)(2).   Traditionally "expan-

sions" and "boundaries" under section 3(x)(2) had been assumed to

be horizontal, not vertical.   M.I.G., 122 Ill. 2d at 396, 523

N.E.2d at 2; see also M.I.G. Investments, Inc. v. Environmental

Protection Agency, 151 Ill. App. 3d 488, 495, 502 N.E.2d 1042,

1046 (1987) (as many as 125 permits had been issued by the agency

for vertical expansion without triggering the more strenuous

review process that accompanied "expansions" under 3(x)(2)).     If

the vertical expansion did not qualify the landfill as a "new"

facility, the proposed project would not trigger new siting and

hearing requirements under the Illinois Environmental Protection

Act (Environmental Act) (415 ILCS 5/1 through 58.7 (West 2006)).

Criteria set forth in section 39.2 of the Environmental Act,

among other things, required that (1) the waste facility be

designed and operated so as to protect the public health and

safety; (2) be located so as to minimize incompatibility with the

character of the surrounding area; (3) be located outside the

boundary of the 100-year flood plain or that the site be flood-

proofed; (4) the plan of operations be designed to minimize

danger to the surrounding area in terms of fire, spills, or other

operational accidents; and (5) traffic plans be designed to

minimize the impact on existing traffic flows.   M.I.G., 122 Ill.


                               - 16 -
2d at 398-99, 523 N.E.2d at 4, citing Ill. Rev. Stat. 1985, ch.

111 1/2, par. 1039.2(a).      The court held that although expansion

of a facility had historically been determined by lateral limita-

tions, vertical expansion should also trigger the "new

pollution[-]control facility" siting and hearing requirements.

M.I.G., 122 Ill. 2d at 399-400, 523 N.E.2d at 4.      The court

reasoned:

                   "To expand the boundaries of a landfill,

            whether vertically or laterally, in effect,

            increases its capacity to accept and dispose

            of waste.    An increase in the amount of waste

            contained in a facility will surely have an

            impact on the criteria set out in section

            39.2(a), which local governmental authorities

            are to consider in assessing the propriety of

            establishing a new pollution[-]control facil-

            ity.    Indeed, adjusting the dimensions of a

            landfill facility to increase the amount of

            waste stored will surely have an impact on

            'the danger to the surrounding area from

            fire, spills, or other operational accidents'

            and 'the character of the surrounding area.'

            [Citation.]" M.I.G., 122 Ill. 2d at 401, 523

            N.E.2d at 5.

            Allowing defendant's proposed project to bypass all the

notice, processing, and siting requirements set in place by


                                  - 17 -
sections 12, 35(c), and 13(b) would be inconsistent with the

purposes of the Environmental Act.      The Illinois Pollution

Control Board set forth some of the first regulations concerning

the health and safety impacts of livestock-management facilities

in 1978.    See 35 Ill. Adm. Code §501.102(e) (filed and eff.

January 1, 1978).    The purpose of these regulations was to

prevent air and water pollution caused by a failure to plan with

regard to proper environmental safeguards concerning the con-

struction, location, and operation of certain livestock facili-

ties.   35 Ill. Adm. Code §501.102(e), as amended at 15 Ill. Reg.

10075, 10082 (eff. July 1, 1991).    There is a danger that,

without adequate environmental planning and safeguards,

livestock-management facilities could cause air pollution, render

waters harmful to public health, and even compromise the health

and safety of the animals housed therein.      35 Ill. Adm. Code

§501.102(c), as amended at 15 Ill. Reg. 10075, 10081 (eff. July

1, 1991).

            Later, in 1996, the Illinois legislature enacted the

Act with the purpose of "maintain[ing] an economically viable

livestock industry in the State of Illinois while protecting the

environment for the benefit of both the livestock producer and

persons who live in the vicinity of a livestock[-]production

facility."    510 ILCS 77/5(b) (West 2006).    The Act endorsed

existing regulations concerning the management of livestock

production, yet felt some enhancements were needed.      510 ILCS

77/5(a)(1), (a)(5) (West 2006).    The legislature noted that, due


                               - 18 -
to market forces, the trend has been for livestock-management

facilities to house larger concentrations of animals.   510 ILCS

77/5(a)(4) (West 2006).    With more animals comes a greater threat

of adverse impacts to the environment, and precautions must be

taken so that waste-elimination mechanisms do not compromise the

groundwater in the area or create odors that are offensive to

neighbors.   510 ILCS 77/5(a)(6),(a)(7), (a)(8) (West 2006).

          Here, defendant is increasing the number of animals

housed in his facility from 56 animal units (40 milking dairy

cows equals 56 animal units) to 1,500 animal units (3,750 swine

equals 1,500 animal units).   510 ILCS 77/10.10 (West 2006).

Given that the legislature was mindful of the tendency toward

increased concentration of animal units and the resulting harm to

the environment when it enacted the Act, it seems unreasonable

that defendant could change the nature and character of his

operation from a de minimus operation housing only 56 animal

units to a very large operation housing 1,500 animal units

without engaging in any of the notice, processing, and siting

requirements set forth in section 12.   Although section 10.45 of

the statute defining "new" facilities does not contemplate the

number of animal units as a factor, section 12, which governs

whether a more strenuous evaluation process applies, does.

Again, section 12 applies to new facilities that contain more

than 1,000 animal units.    The introduction of a high concentra-

tion of animal units where no such concentration previously

existed surely impacts the requirements set out in section 12(d)


                               - 19 -
and as described above.   See M.I.G., 122 Ill. 2d at 401, 523

N.E.2d at 5 (implying that whether a change to a facility impacts

the siting and hearing requirements is a factor in determining

whether that change should trigger them).   Here, introducing a

high concentration of animals to the area would surely impact the

section 12(d) requirements of "minimiz[ing] the likelihood of any

environmental damage to the surrounding area from spills, runoff,

and leaching," and "[reasonable] odor control plans."    510 ILCS

77/12(d)(5), (d)(6) (West 2006).

          Perhaps the legislature did mean to grandfather in

preexisting structures containing 1,000 animal units in the sense

that any proposed moderate expansion on such structures would not

be subject to the strenuous section 12 evaluation process.

However, the facility at issue in this case is not a preexisting

structure housing 1,000 animal units.   At the most, it is just a

(virtually nonoperating) preexisting structure.   The fact that

property was used many years ago to house large numbers of

animals does not mean the owner gets a "free pass," that every

future project will now be labeled just an "expansion."

          However, it is not even certain that defendant's

project constitutes the "expansion" of a preexisting structure

rather than the "construction" of a structure.    The words "con-

struction" and "expansion" are not defined by the Act.    If the

proposed changes do not constitute an "expansion" under the

statute, then the fact that the project costs less than 50% of

the cost to build an entirely new structure is irrelevant, taking


                              - 20 -
away the majority's basis for reversing the trial court.   The

existing housing structure has been completely razed.    Defendant

is not just adding 50% to what is already there.   Is there not a

"fair question" that defendant's project should constitute a

"construction" under these circumstances?    We can only guess why

the proposed building cost is only 41% of building an entirely

new structure if the old structure has been razed; perhaps it is

because defendant proposes to build in the footprint of the old

structure, or perhaps it is because adjoining storage or equip-

ment buildings on the property remain.

          The only reason defendant offers to support the notion

that this court should consider his project an "expansion"

costing 41% of the cost of building the same structure from

scratch is that Department manager Goetsch labeled it as such.

Defendant argues that this "finding of fact" on the part of

Goetsch is entitled to deference.   See XL Disposal Corp. v.

Zehnder, 304 Ill. App. 3d 202, 207, 709 N.E.2d 293, 297 (1999)

(court should give deference to administrative agency's determi-

nation of fact).   However, this level of deference, as noted in

XL Disposal and other cases cited by defendant, applies to

administrative-review cases, where the court reviews findings of

fact as determined by an administrative law judge at an adminis-

trative hearing, not findings of fact as determined by an em-

ployee of an administrative agency.    See 5 ILCS 100/10-5 through

10-70 (West 2006) (Illinois Administrative Procedure Act regard-

ing rules for contested-case proceedings).   Under the Illinois


                              - 21 -
Administrative Procedure Act, an administrative agency is re-

quired to make findings of fact as condition precedent to an

order, which must be specific enough to enable courts of review

to intelligently review the decision of the agency.     Allied

Delivery System, Inc. v. Illinois Commerce Comm'n, 93 Ill. App.

3d 656, 664-65, 417 N.E.2d 777, 783 (1981); 5 ILCS 100/10-50

(West 2006) (governing administrative decisions and orders).

Here, no such order containing said findings of fact has been

made for us to review.

          Finally, defendant argues that even if the Act is

ambiguous as to what types of construction and/or expansion

projects are subject to the more strenuous section 12 notice and

processing requirements, this court should give deference to the

Department's determination that defendant's project is not

subject to section 12, 35(c), and 13(b) requirements.    An admin-

istrative agency's interpretation of a statute it is charged with

administering does not "bind" a court of review in the sense that

a court of review must accept it unconditionally regardless of

its reasonableness; however, if the agency's interpretation is a

permissible one, the fact that we ourselves may have interpreted

the statute differently does not justify reversal.    Illinois Bell

Telephone Co. v. Illinois Commerce Comm'n, 362 Ill. App. 3d 652,

657, 840 N.E.2d 704, 709-10 (2005).   "The longer an agency has

adhered to an interpretation of the statute, the more weight the

interpretation deserves; but consistency and duration are not

prerequisites to our duty of deference."   Illinois Bell, 362 Ill.


                             - 22 -
App. 3d at 657, 840 N.E.2d at 709.    Here, Goetsch conceded that

bringing in a very large number of animals to a facility or

property that most recently housed only a much smaller number of

a different animal species was an unusual request that the

Department had not dealt with often.   Under these circumstances,

and with strong emphasis on the purposes of the Act, I believe a

fair question exists as to whether defendant's project should

satisfy the Act's notice, processing, and siting requirements

imposed on new facilities.




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