Kreutzer v Illinois Commerce Commission

Appellate Court of Illinois, Second District No. 2-09-0007 September 16, 2010: In this transmission line case, the Court held that the owners of a “centennial farm” on the proposed line’s location could not appeal the state’s refusal to take note of the historic landmark designation of their house because petitioners, in their application to the state commission’s for a rehearing, did not assign error to the commission’s refusal.

The farm owners (petitioners) appealed the Illinois Commerce Commission (ICC) grant of a certificate of public convenience and necessity to Commonwealth Edison Co. (ComEd) for the construction of a new electrical transmission line. The administrative law judge’s record in this matter was marked `Heard and Taken’ in January 2008. The petitioners sought the county designation of their house on the south side of the transmission line route as a “Kane County Historic Landmark” in March 2008. The County Board granted the landmark designation on June 10, 2008. The petitioners asked the ALJ to take note of the designation in August 2008. On September 2, 2008, the ALJ denied petitioners’ motion to take administrative notice. The petitioners filed an application for rehearing November 7, 2008, and it was denied December 1, 2008, and the ICC’s final order issued October 8, 2008.

One basis of the petitioners’ appeal of the ICC order was that in its decision denying a rehearing, the ICC erred by declining to take administrative notice of the designation by the county of petitioners’ house on the south side of the transmission line route as a landmark. The Court held that petitioners forfeited that argument because in their application for rehearing, petitioners mentioned the Commission’s denial of the motion but did not assign error to it.

The Court nevertheless reversed and remanded the ICC grant on other grounds.

Decision text available at http://www.state.il.us/court/Opinions/AppellateCourt/2010/2ndDistrict/September/2090007.pdf.

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