ILLINOIS POLLUTION CONTROL BOARD

October 24, 1974

J. RUSSEL MILLER,

Petitioner,

v.

)

PCB 74—230

ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

DISSENTING OPINION (by Dr. Odell)

I dissent from the decision adopted by Pollution Control

Board (Board) for several reasons. First, the facts of the

case do not establish that Petitioner has met his test of

arbitrary or unreasonable hardship under Section 35 of the

Environmental Protection Act. The majority Opinion admits in

the second paragraph of page three that “Petitioner’s hardship

was largely self-imposed.” While it is clear that a

denial of the variance will impair the Petitioner financially,

and will delay service to the City of North Chicago, it is not

the responsibility of the Board to see to it that every community

has dental care by granting variances to the first contractor 

——

albeit financially con5trained 

——

who makes such care possible.

Second, the case sets a bad precedent. While the majority

through “very close weighing of the particular balancing con-

siderations” obviously wants the decision to quietly evanesce,

it cannot be so. Not only may the decision encourage others to

take unnecessary risks in expectation of Board rescue, but the

decision also may be a disservice to more needy individuals who

have been denied variances in the past. To dilute the test of

arbitrary or unreasonable hardship leaves the Board standardless;

it lowers the public’s estimation of and confidence in the Board.

I would deny the variance for the above reasons stated.

c~7T~Wt

Russell T. Odell

I, Christan L. Moffett, Clerk of the Illinois Pollution Control

Board, hereby certify that the above Dissenting Opinion was sub-

mitted on the/~~day of 

~j.__d,

1974.

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Dr. Ron Stanczak, D.D.S., for the remaining floor. Petitioner further

claims that he has previously built two commercial buildings (a Yankee

Doodle Hamburger Restaurant and a Pizza Hut Restaurant) on the land

for which the variance is sought; and that these were connected to

the sewer after the rezoning, but prior to the sewer ban. It is

further claimed that the increase in sewage load will be very low, and

that two-thirds of the proposed load is now entering this sewer.

Petitioner alleges that the only alternatives to connecting onto the

said public sewer are to haul the sewage away or to construct a septic

system, either of which, it is alleged, would be a costly expense

in comparison to the requested sewer connection.

From the Amended Petition and discussions with Petitioner, the

Agency has gathered the following information:

a) The subject building has been completed.

b) Petitioner has let one floor of the three—story building

to two dentists at a monthly rental of $1200. Their

lease begins November 1, 1974.

c) Petitioner plans to let no other space in the building

until the sewer ban is lifted.

d) Petitioner has investigated the use of a holding or

septic tank and has found that the City of North Chicago

will not permit these alternate systems.

e) Petitioner is in deep financial trouble due to this business

venture and another in which he has invested $70,000 of

his own money. He is well over $350,000 in debt and is

having a difficult time selling condominium units (the subject

of the other venture) due to the present tight money situation.

Of 21 units which comprise the condominium structure built

by Petitioner, ten have been sold. Three others have been

purchased but they have been unable to obtain financing.

All of the money received as payment for the condominiums

has gone to the bank to pay off the loan.

f) Petitioner estimates that the additional load on the North

Chicago treatment plant will be about 40 gallons per day.

The Agency states that the additional load that Petitioners proposed

connection will add to the North Chicago sewage treatment plant is minimal.

In addition to the fact that only forty gallons per day of wastewater

is estimated, many of the dentists’ patients reside in the area served

by the North Chicago waste treatment plant and would thus add no additional

load to the plant.

The Agency believes that Petitioner has established a substantial

hardship. The lack of available alternative methods of treatment leaves

Petitioner the choice of either obtaining a sewer connection or allowing

his building to remain vacant until the ban is lifted.

14

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266

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We are disposed to grant this variance for connection, subject

to the condition that said connection shall service only the floor

leased by the two dentists. A balancing of Petitioner’s economic

hardship, minimal additional sewer load, and service provided to

the community weighs in favor of a grant of the subject petition.

A denial of this variance would impair Petitioner financially,

further delay a needed service to the City of North Chicago, and do

little to protect the environment.

In reaching the decision to grant this limited relief, we

are not unmindful that Petitioner’s hardship, onerous as it may

be, was largely self-imposed. We note also that this Petition could

have been and should have been filed at a much earlier date. It

was only after very close weighing of the particular balancing

considerations detailed above and the specific facts presented that

we decided to grant the minimal relief necessary to sustain Petitioner.

This Opinion constitutes the findings of fact and conclusions of

law of the Board.

IT IS THE ORDER of the Pollution Control Board that 3, Russel

1liller be granted a variance to allow connection of the subject

property; provided that said connection shall service only the floor

leased by the two dentists.

Mr. Dumelle and Dr. Odell dissent and Mr. Duinelle will

file a dissenting opinion.

I, Christan L. Moffett, Clerk of the Illinois Pollution Control

Board, certify that the abo e pinion and Order was adopted on this

_____________

day of           

1974 by a vote of 

.3— ~

(~.

H-

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267