ILLINOIS POLLUTION CONTROL BOARD

December

3,

1981

BRAVO-ERNST DEVELOPERS,

Petitioner,

v.

)

PCB 81—62

ILLINOIS ENVIRONMENTAL PROTECTION

)

AGENCY,

Respondent.

OPINION AND ORDER OF THE BOARD

(by

I.

Goodman):

This matter is before the Board upon the petition of Bravo-

Ernst Developers

(Bravo—Ernst)

for a variance from Rule 962(a)

of Chapter

3:

Water Pollution Control Rules and Regulations

(Rules)

to allow construction only of sewage

lines from Macedonian

Heights Subdivision, located in an unincorporated area of Du Page

County,

to the Lisle—Woodridge Sewage Treatment Plant.

Bravo—

Ernst originally filed a petition for this variance on April

20,

1981, which was found subject to dismissal as being inadequate

by Board order of May

1,

1981.

Bravo-Ernst subsequently amended

twice

its petition and the Agency submitted its recommendation.

No hearing has been held in this matter and the Board has received

no public comment.

Bravo—Ernst is a partnership which owns twelve contiguous

vacant

lots known as Macedonian Heights Subdivision located on

the south side of 59th Street in Woodridge,

Illinois.

It

is

Bravo-Ernst’s intention to develop the property by construction

of twelve single family homes with an estimated population of

forty—eight people.

In order

to develop the property, Bravo—

Ernst petitioned for and received from the Illinois Commerce

Commission an Order and Certificate

of Public Convenience and

Necessity.

The Order allows construction, operation, and main-

tenance of public water supply and distribution and sanitary sewer

facilities to the Macedonian Heights Subdivision, and is expressly

conditioned upon the acquisition by Bravo—Ernst of such permits

from the State of Illinois Environmental Protection Agency

(Agency)

as may be required by

law.

The Lisle—Woodrige facility of the Du

Page County Department of Public Works has been and continues to be

under restricted status as imposed by the Agency on May

31,

1979.

Bravo—Ernst requests a variance to allow the construction of a

sewer system to the vacant lots which would be connected subsequent

to the Agency vacating the restricted status of the treatment plant.

44—161

---

2

Bravo—Ernst

alleges financial hardship

caused by the interest

on the purchase price

loans made to

acquire the property,

the costs

of engineering, and the

pursuit

of the Commerce Commission order.

Specifically,

an

expenditure of

approximately

$13,000,

in addition

to the original

investment and the

interest payments on the loan,

is alleged.

Bravo—Ernst feels that if the sewers

were in place,

the property would

be more salable

notwithstanding the fact that

the sewers could

not be connected until the restricted

status is

lifted.

The

partnership

states

that

it

would

sell the individual

lots

in

question

without

homes

to

those

financially

better

able

to

wait

and

the

contract

for

sale

would

contain

a

statement

that

no

connection

could be made

to

the

sewer

system

until

such

time

as

sufficient treatment capacity was available at Lisle—Woodrige.

The

Agency

recommends

that

the variance be denied,

in

its

recommendation the

Agency

cites

an August 13,

1980

Order entered

by

the

Circuit

Court

in

C~2orate West Deve~Tmen~j~Inc.

V.

Illinois_Environmental Protection Aqencv

County of

Du

Page,

Village of

Lisle adV~.tace~t~oodrid~,

/9 MR

257.

The Lisle—

Woodridge

Treatment

Plant was found in violation

of its

NPDES

permit and

this

Order set forth a plan allocating

sewer

connections

as

increased

treatment

capacity

of the facility becomes

available.

It is the Agency~s

opinion that this Order renders

useless the

variance Bravo—Ernst

now

seeks, because the Order bars

any sewer

connections by parties

not considered in its plan.

In

addition,

the Agency points out

that

subsequent owners of

the

homesites

could request individual

variances

to connect, subjecting the

Board to a multiplicity

of

petitions likely to

result in further

overload of the

plant.

The Board

finds

that

the Circuit Court Order cited

by the

Agency does

not affect the Boards

duty

to

consider

a variance

petition on its

merits

as mandated by the Illinois

Environmental

Protection Act.

Whether

or

not a petitioner who

receives

a

variance will

subsequently

be abLe to utilize that

variance

is,

of

course,

subject

to

petitioner~s

ability

to

satisfy

permitting

requirements

and

overcome

any

ottier

legal

obstacles,

The

Board,

however,

does

agree

with

the

rest

of

the

Agency~s analysis.

There

is

no

showing

other

than

economic

hardsh:Lp~

and

th.LS

appears

to

be

largely

self—imposed

and not

in excess

of that

suffered

by

any

other

land

investor

under

recent

economic

conditions.

Lastly,

the

Board

agrees

with

the

Agency

that

a

contract

condition

stating

the

unavailability

of

hook~upwould be no bar to a

subsequent

petition

for variance

to the

Board.

The Board will,

therefore,

deny

Bravo—

Ernst’s Petition

for

Variance.

This Opinion

constitutes

the

findings of fact

and conclusions

of

law of the Board

in this matter,

ORDER

It is the

Order

of

the

Illinois

Pollution

Control Board

that

the Petition

for Variance of Bravo-~ErnstDevelopers herein

be

and

is hereby denied.

44—162

---

IT IS SO ORDERED.

Board Member N.

Werner

abstained.

I, Christan L.

Moffett,

Clerk of

the

Illinois

Pollution

Control Board, hereby

c~~tify

that ~jieabove

Opinion

and Order

was

adopted

on

the

~

day

of (~L~

~

1981

by a

vote

of

‘/—~

Christan

L

MofiéJ~*’/Clerk

Illinois

Po~.~ution

ontrol Board

44— 163