ILLINOIS POLLUTION CONTROL BOARD
October
10,
1985
t~\WTHORN
REALTY GROUP,
INC.,
Petitioner,
v.
)
PYL~R5—a5
ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY and VILLAGE OF LINCOLNSHIRE,
Respondents.
MESSRS.
CHARLES
L. SIEMON AND WILLIAM
W. MERRILL
Iii
vV
SII~:MUN,
LARSEN
& PURDY ON BEHALF OF PETITIONERS;
MESSRS. PATRICK
A.
LUCANSKY AND MICHAEL J.
DUGGAN OF KLEIN,
THORPE
& JENKINS,
LTD. ON BEHALF OF THE VILLAGE OF
J~INCOLNSHIRE;
MS. HEIDI
E. HANSON ON BEHALF OF THE ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY.
OPINION AND ORDER OF THE BOARD
(by J. Marlin):
This matter comes before the Board upon
a petition for
variance filed on June
18, 1985 by Hawthorn Realty Group,
Inc.
(Hawthorn)
for relief
from 35
Ill. Adm. Code 309.222(b).
By
order of June
27,
1985 the Board joined the Village
of
Lincolnshire (Village)
as a necessary party respondent, order”d
Hawthorn
to serve the Village and to provide
the Board with pro~’
I
of service on
the Village, and ordered Hawthorn to
file an
amended petition.
In response
to
a motion
by Hawthorn dated
August
8,
1985,
the Board on August
15,
1985 determined
that the
ninety day time period for
it
to render a decision on
the
variance petition commenced on July
16,
1985,
the date of
tiling
of
the proof of service on the Village.
A pre—hearing conference
was held
on September
3, 1985 and a hearing was held
in
Lincoinshire,
Illinois on September
10,
1985.
While
the Village
originally objected to a grant of variance,
it subsequently
withdrew its objection.
Hawthorn
is
a Delaware Corporation duly authorized
to
conduct business
in the State of Illinois.
It
is active
in the
ownership, development,
sale and management of real estate
in
the
State
of Illinois.
Hawthorn
is the developer
of
an office and hotel complex
known as the Tn—State
International Office Center,
The complex
is located at the intersection of Illinois State Route
22 and the
Tn—State Tollway
in Lake County, Illinois.
Phase
I of the
project
is
located
in the Village of Lincolnshire
and
is
currently under construction pursuant to permits
issued by the
Village of Lincolnshire and a number
of other governmental
66-29
2
ajencies,
including IEPA permit numbers
1984—1113—0306,
1977—1113—4314 and 1977—HB—4314—l,
Phase
I involves
three office
buildings with
a combined square floor area of
350,000 square
feet.
Phase
II lies
in unincorporated Lake County
immediate;
t~he north
of
the
corporate
limits
of
the
Village
of
Lincoinshire.
It
consists
of
two
office
buildings
with
210,00a
square feet of floor
area and a 120 room hotel
all of which
ha:~.
been approved by Lake County~
Phase
II
of the project,
U~Ofl
~s
sompletion, will employ approximately 804 persons.
Hawthorn proposes
to provide sewer service to the Phase
II
development by building a sewer
line that will connect with
the
line built as part of Phase
I,
The line serving Phase
I was
turned over to the Village by Hawthorn.
The proposed sanitary
sewer extension
is 650 feet of
10 inch ductile
iron pipe and 90
feet of
6
inch ductile
iron pipes
The proposed sewer also
includes
2 manholes for the
10 inch pipe set
at
a maximum
distance of
375 feet apart and 2 manholes for the
6 inch pipe,
a
maximum of
50 feet apart,
The proposed discharge from Phase
II
is
195.3
(PE)
of ordinary domestic waste,
The discharge would he
transported through
a series of receiving sewers which are
a part
of Lake County~sareawide wastewater treatment system to the Des
Plaines River Sewage Treatment Plant
(Pekara Road Plant).
Hawthorn has applied
to the IEPA for construction permit approvai
for Phase
II,
The receiving sewer through which the proposed discharge
would be transported
is
1575
feet of
10 inch pipe and 10 manholes
that were constructed by Hawthorn solely at its cost.
Hawthorn
also contributed $250,000 to assist
in improving the area wide
sewer
system.
Hawthorn requests relief
from Section 309.222(b) which
provides:
b)
Permit applicants for sewer construction or
modification shall
be accompanied by signed
statements
from the owners of all intermediate
receiving sewers and the receiving
treatment
works certifying
that their facilities
have
adequate capacity to transport and/or treat
the wastewater that will be added through
the
proposed sewer without violating any
provisions
of the Act and this Chapter.
At
a pre—tnial conference,
all parties agreed that granting
the variance would have no adverse impacts on the water quality
of
the waters of the State.
In addition,
they agreed on three
issues
to be addressed at hearing:
a)
whether capacity of the intermediate receiving sewer
line
is adequate to receive
the Phase
II discharge;
66-30
3
b)
whether
the Village
had refused
to certify
the
~pcity
of the line;
and
c)
whether compliance with Section
309,222(b)
wee’~1res~
in
an arbitrary or unreasonable har~iship.
Regarding
a),
the intervening sanitary sewer
line
capacity was
stipulated
as 1870
PE,
From Hawthorn~scalculations
there
is
more than adequate reserve capacity
in
the receiving sewer
(Exhibit D to
the petition
at
13),
The connection
of
the project
in question will add 195,3
PE,
As for b),
the Village
refused
t±
certify at hearing
(R,8,l8),
The basic
reason
the Village
refuses
to certify
is that Hawthorn will not agree
to annex Phase
II
to the Village
(R,
8).
Therefore,
the only issue
left for the
Board
to determine
is whether Hawthorn has shown
an arbitrary
on
unreasonable hardship.
Section
35 ot
the Act
(Ill.
Rev, Stat.
1985,
ch.
ill
1/2
par.l035) provides that petitioners must show that compliance
with the Board?s
rules and regulations or the Act would
impose an
arbitrary
or unreasonable hardship on petitioner.
Monsanto Co.
v.
IPCB,
67 Ill,2d
276, 376 N,E,2d 684
(1977).
The evidence
shows
that
if Hawthorn does not connect to the Village sanitary
sewer
system,
it would have to
install either
a parallel sanitary
sewer line at a cost of $119,000 or a package treatment plant
(R.30—l).
Hawthorn states that such a plant would be an
expensive
installation, costly
to operate, entail
a high degree
of maintenance and would require
an amendment to the Village’s
wastewater management system (Id.).
While
the evidence does
not
suggest
that
the options are technically infeasible,
they are
clearly more costly than connecting
to the existing sewer
line
owned by the Village.
In addition,
constructing
the alternate
sewer
line would
cause considerable damage
to existing facilities
and property that would not occur with
the use
of
the
existin~
line
(R,
27—30).
Under the regulations, Hawthorn cannot receive
a permit
La
construct
its proposed sewer unless the Village certifies
that
the receiving sewer has adequate capacity or Hawthorn obtains
a
variance.
The purpose of this regulation
is
to insure that
sewers and sewer plants are not inadvertently overloaded
by
additional
hookups,
The factual question
to be addressed deals
solely with capacity,
not Village policy on annexation or
Hawthorn’s property rights which should be addressed
in another
forum.
The record shows
that
the capacity
is adequate for
the
proposed connection, but that the Village will not certify
tar
reasons having
to do with other matters,
The Village’s refusal
to certify this simple factual question places Hawthorn
in the
position of not being able to file a complete permit
application.
Given
this situation,
complying with the
regulations constitutes
an arbitrary
or unreasonable hardship.
Hawthorn could
seek
a mandamus order requiring certification,
but
this would consume both public and private resources without
resolving
the underlying
issue,
The Board rejects the argument
66-31
4
that any hardship
is self—imposed, because Hawthorn can
reasonably expect the Village to certify line capacity without
imposing extraneous conditions regardless of other issues which
may be
in dispute.
Such conditions are improper and frustrate
the regulatory intent.
The Board finds that Hawthorn will suffer an arbitrary or
unreasonable hardship if required to comply with Section
309.222(b).
The Board hereby grants Hawthorn a variance from 35
Ill. Adm. Code 309.222(b) for two years or until the Agency
renders a final decision on the requisite permit applications,
whichever is sooner.
This variance is limited to the sewer line
at issue in this case.
The Board also points out that
this
variance does not obviate the need for compliance with any
applicable local ordinances.
This Opinion constitutes the Board’s findings of facts and
conclusions of law in this matter.
ORDER
Hawthorn Realty Group, Inc.
is hereby granted a variance
from 35 Ill. Adm. Code 309.222(b) as it relates to the receiving
sanitary sewer in the Village of Lincolnshire serving Phase
I of
the Hawthorn development known as Tn—State International Office
Center.
1.
The variance expires on October 10,
1987 or when the
Illinois Environmental Protection Agency renders a final
decision on the requisite permit applications, whichever
is sooner.
2.
within 45 days of the date of this Order, Hawthorn shall
execute and forward to the Illinois Environmental
Protection Agency, Compliance Assurance Unit, Water
Pollution Control Division, 2200 Churchill Road,
Springfield, Illinois 62706, a Certification of
Acceptance and Agreement to be bound to all terms and
conditions set forth in the Order.
The 45 day period
shall be held in abeyance during any period
in which
this matter is being appealed.
The form shall be as
shown below:
8842
CERTIFICATION
I,
(We),
________________
_____,
hereby accept(s)
and
agree(s)
to be bound by the above terms
and conditions
of the
Order of
the Pollution Control Board
in PCB 85—85 dated
October
10,
1984,
Petitioner
~itle
By:
Authorized Agent
Date
IT
IS SO ORDERED,
Board Member J,D,
Dumelle dissented,
Board Member
B,
Forcade abstained,
I,
Dorothy
H,
Gunn,
Clerk of the Illinois Pollution Control
Board,
hereby certify
that the above Opinion and Order was
adopted
on the
____
/O~J-~
day of
~
,
1985
by
a vote of
Dorothy M, Gunn; Clerk
Illinois Pollution Control Board
66-33