ILLINOIS POLLUTION CONTROL BOARD
    December
    20, 1973
    HENRY BERKQUIST
    PETITIONER
    v.
    )
    PCB 73—412
    ENVIRONMENTAL PROTECTION AGENCY
    RESPONDENT
    OPINION AND ORDER OF THE BOARD (by Mr. Marder)
    On October 1, 1973, Mr. Henry Berkquist filed a petition for
    variance from Order #7 of League of Women Voters v. North Shore San-
    itary District, PCB 70-7, 12, and 14, to allow a future sewer conn-
    ection to a presently unimproved lot located in Knoliwood, Illinois.
    The Agency vigorously objected to this variance, in its recommenda-
    tion filed November 20, 1973.
    No
    hearing was held.
    Mr. Berkquist has stated he is the owner of Lot #2, Block 17,
    at 803 Foster Ave., Knollwood, Illinois. He is unable to care for
    the property or maintain •a vigil against vandalism because of the
    need to constantly attend his ailing wife.
    Mr. Berkquist also stated that he is a “senior citizen,” who
    has been retired from Fansteel Metallurgical Company since 1959, af-
    ter 39 years’ service. He now lives in Waukegan, Illinois, in order
    to be close to a hospital, as Mrs. Berkquist has a “serious” heart
    condition and must be rushed to the hospital when necessary.
    Mr. Berkquist has a prospective buyer for the lot, but their
    agreement is subject to obtaining a sewer permit.
    The Agency objects to the granting of this variance because
    of the possibility that the Clavey Road treatment plant might be
    forced to operate at over its rated capacity when the flow from 3
    lakefront plants is diverted to Clavey in February, 1974. The Clay-
    ey plant is scheduled to reach an operating capacity of 18 mgd by
    March 1, 1974. The plant now has a rated capacity of 10 mgd and the
    latest figures on the plant operation are as follows:
    10
    —
    447
    —2—
    Date
    Flow (MGD)
    BOD (mg/i)
    TSS (mg/l)
    Sep/73
    6.72
    7
    18
    Aug/73
    6.33
    11
    13
    Jul/73
    6.34
    19
    23
    Jun/73
    7.64
    23
    20
    May/73
    8.19
    30
    31
    Apr/73
    10.31
    28
    22
    Mar/73
    9.21
    35
    21
    Feb/73
    6.87
    33
    20
    Jan/73
    7.56
    18
    17
    Dec/72
    7.30
    21
    12
    Nov/72
    7.63
    35
    13
    Oct/72
    7.89
    30
    16
    Sep/72
    10.41
    41
    14
    (Cited from John Marco, former acting director of Illinois Environmental
    Protection Agency, Comment of the Environmental Protection Agency Con-
    cerning the Present Status of the North Shore Sanitary District.)
    With the increased flow from the lakefront plants estimated by the
    Agency in its recommendation, the plant will still not go above its
    rated capacity of 10 rngd based on the last three report months. The
    above data shows a trend of clear improvement in the last few months.
    Since Mr. Berkquist indicates that his buyer will want to occupy
    his house in late spring or early summer, 1974, it is the opinion of
    the Board that there will be no adverse effect to the water quality
    of the area should Mr. Berkquist be granted a variance.
    The Agency next contends that Mr. Berkquist is not suffering an
    unreasonable hardship. The Agency contends that all Mr. Berkquist is
    losing is one potential buyer. We feel that the above, taken with Mr.
    Berkquist’s advanced age and the health of his wife, are substantial
    grounds for a showing of unreasonable hardship.
    This case is similar in the facts to that of Roach v. Environmental
    Protection Agency, PCB 73-324. In the Roach case, we determined that
    the only way to relieve Mrs. Roach of her severe hardship was to grant
    her a variance that ran with the land. The Agency argued that because
    a variance is granted for hardship reasons, when the property is trans-
    ferred then the variance holder’s hardship ends and the variance should
    cease to operate.
    The Agency has argued the same position in this case. The Agency’s
    position puts us in the untenable position that when we determine there
    is an unreasonable hardship because a petitioner cannot sell his prop-
    erty without a sewer permit variance, if he does sell the property he
    loses the variance. In effect we have put him back in the position he
    started, because a buyer who wants a sewer permit will not buy the prop-
    erty if he knows the variance will be null when he obtains title. We
    10
    —
    448
    —3—
    We cannot live with this conclusion. When we
    grant
    a sewer ban variance
    to allow a petitioner to sell his land, we do not then take it away be-
    cause he then sells the land in question.
    The Board concludes that because of the uniqueness of a sewer ban
    variance, as opposed to other Section 33 variances, sewer ban variances
    run with the land.
    Under Section 36 (B) of the Environmental Protection Act, the Board
    may only grant a variance for one year. Just a cursory view of a sewer
    ban variance shows that a one-year limit on it would be totally inapprop-
    riate. Once the hook-up is completed, it is impractical to end the
    right of use after one year. A sewer ban variance
    runs
    for the life of
    the improvement on the land.
    The Agency’s argument would have us draw the distinction between a
    person who is granted a sewer ban variance to build a home, and then
    sells it upon completion or after a few years, and the person who cannot
    afford to develop the propcrty, but one
    Who
    still must sell the land and
    needs the right to hook up to the sewer before a buyer will take the
    land. To uphold this argument would discriminate and deny equal protect-
    ion to persons without the means to develop their property.
    We have allowed a condominium developer to obtain sewer ban variances
    for the sale of developed condominium units (Exchange National Bank &
    Katz—Weiss Construction Corporation v. Environmental Protection Agency,
    PCB 73—15). We have also allowed a developer to obtain sewer ban
    var-
    iances for resale of property that would add 910 population equivalent
    to the system (Mid-City Developers v. Environmental Protection Agency,
    PCB 72—274)
    It is grossly inequitable to allow these developers a variance because
    they have the resources to build on the land and then sell the property,
    and not allow Henry Berkquist to sell his land with a sewer ban variance
    because he can’t afford to build a house and sell it complete.
    The Board finds that a sewer ban variance granted because of hardship,
    when the hardship is such that Petitioner’s land cannot be sold without
    the variance, runs with the land and will be valid for subsequent hold-
    ers of the fee.
    The Board finds
    that Mr. Berkquist is suffering an unreasonable hard-
    ship
    under Order #7 of the League of Women Voters v. North Shore Sanitar
    District.
    This Opinion constitutes the findings of fact and conclusions of law
    of the Board.
    ORDER
    IT IS THE ORDER of the Pollution Control Board that variance is here-
    by granted to Petitioner from the Board’s Order #7 in League of Women
    Voters v. North Shore Sanitary District, PCB 70—7, 12, 14, to allow a
    10
    —449
    —4—
    future sewer connection to the presently vacant lot.
    IT IS SO ORDERED.
    Board,I, certify
    Christan
    that
    L. Moffett,
    the abo
    Clerk of the
    ndIllinoisOrder was
    Pollution
    adopted
    Control
    by the
    Board on the
    ~
    day of~.4~,
    ,
    1973, by a vote of
    ____
    to
    c
    (~4~
    10—450

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