ILLINOIS POLLUTION CONTROL BOARD
    June
    5,
    1986
    LAMPLIGHTER REALTY
    &
    )
    DEVELOPMENT COMPANY,
    Petitioner,
    v.
    )
    PCB 83—157
    ILLINOIS ENVIRONMENTAL PROTECTION
    AGENCY,
    Respondent.
    ORDER OF THE BOARD
    (by J. Marlin):
    This matter comes before
    the Board upon the May 7,
    1986
    filing by Laniplighter Realty
    & Development Company
    (“Laniplighter”)
    of
    a motion
    to clarify the Board’s Orders dated
    February 22 and March
    6,
    1984(56 PCB 225,
    57 PCB 21).
    The
    Illinois Environmental Protection Agency
    (“Agency”)
    filed
    its
    response on the morning of May 22,
    1986.
    The Board by Order of
    May 22,
    1986 ordered Lamplighter
    to submit
    a proper affidavit for
    its motion
    to clarify and requested that Lamplighter file
    a reply
    to the Agency’s response.
    The affidavit and
    the reply by
    Lamplighter were filed with the Board
    on June
    2,
    1986.
    Previously, Lamplighter
    was granted variance from 35
    Ill.
    Adni.
    Code 309.241(a), restricted status,
    as
    it related
    to the
    Marionbrook Waste Treatment Facility (“Marionbrook”).
    Variance
    was needed
    so Laznplighter could develop its
    95 acre planned unit
    development.
    The result of the grant of variance was
    to enable
    the Agency
    to issue sewer
    and connection permits
    for
    up to 550
    population equivalents
    (PE) for the development.
    Since
    the
    time of variance
    issuance, Lamplighter entered
    into an agreement to sell the first parcel
    in the development
    to
    Adventist Living Center,
    Inc.
    (“Adventist”).
    Adventist applied
    to the Agency
    for
    a permit to construct and
    to connect
    a lateral
    sewer extension which would provide sewer
    service for Adventist’s
    nursing home.
    The Agency granted a construct only permit,
    denying
    an operating permit (December
    19,
    1985).
    Apparently,
    Adventist chose
    not
    to appeal.
    Lamplighter
    represents that the Agency will not issue
    an
    operating permit to Adventist until
    (1)
    the Knollwood wastewater
    treatment plant
    is operating,
    or
    (2) Adventist obtains
    a variance
    for
    itself,
    or
    (3)
    the Board decides that Adventist can use some
    of the
    550
    PE capacity allotted
    to Larnplighter.
    The Knollwood plant is scheduled
    to begin operation
    in the
    fall of 1986.
    Meanwhile, Adventist has been constructing
    the
    70-86
    2
    nursing home and
    is committed to
    its completion
    by the end of
    July,
    1986 with occupancy on August
    1,
    1986.
    Lamplighter asserts
    that Adventist cannot wait
    for Knoliwood
    to begin operation and
    that
    a “whole new variance proceeding would be a waste of...time
    and resources...”
    (Motion at
    4).
    The Agency correctly argues that
    it does not have the
    authority
    to transfer PE allocated by a variance
    to an assignee
    of
    a petitioner;
    that such authority rests solely with the Board
    (Agency Response at
    2).
    The Agency states that
    it joins with
    Lamplighter
    in asking
    for clarification.
    The Agency would like
    a
    determination of whether
    sewage capacity
    is generally
    transferable by permit within
    a planned unit development and
    whether the Board
    intended so
    in this case.
    Id.
    The Board hereby grants
    the motion for clarification
    pursuant
    to 35 Ill. Adm.
    Code 103.241(a).
    In determining that
    denial
    of variance would
    impose
    an arbitrary or unreasonable
    hardship,
    the Board’s Opinion noted
    the loss of land sales by the
    developer as
    an element of hardship,
    and therefore indirectly
    contemplated the occurrence of such sales once variance was
    granted.
    To fail to allow transfer of PE from
    the developer
    to
    the purchaser
    in this instance would
    render the variance largely
    useless
    to Lamplighter.
    Therefore,
    the Board
    finds
    that
    Lamplighter’s sewage capacity
    is transferable
    to Adventist and
    any subsequent purchaser(s).
    In so finding,
    the Board
    is making no general
    finding of
    transferability;
    if
    transferability
    is an issue,
    it should be
    specifically addressed in the records in future proceedings of
    this type to allow the Board
    to make and articulate proper
    case—
    by—case
    findings.
    To implement this Order, and noting that
    a construction
    permit
    has already issued,
    the Agency
    is directed
    to issue
    a
    permit for
    sewer extension and connection to Adventist
    in the
    amount of
    188
    PE,
    such amount
    to be subtracted from the total
    of
    550 PE allowed
    to Laniplighter.
    Lamplighter will then have
    362
    PE
    left for use within its planned unit development.
    IT IS SO ORDERED.
    I,
    Dorothy
    M.
    Gunn, Clerk of the Illinois Pollution Control
    Board,
    hereby certify
    at the above Order was adopted on
    the
    ~
    day of
    _________________,
    1986,
    by a vote
    of
    ~7—p
    Dorothy M. Gu~n,Clerk
    Illinois Pollution Control Board
    70.87

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