ILLINOIS POLLUTION CONTROL BOARD
April
19,
1984
BOB EVANS FARMS
INC.
an Ohio Corporation,
Petitioner,
v.
)
PCB 83—65
ILLINOIS ENVIKONMENTAL PROTECTION
AGENCY;
THE
COUNTY OF DUPAGE,
)
Respondents.
hR. MARK KOWALCZYK (KOWALCZYK AND STOCSDILL) APPEARED ON BEHALF
OF BOB EVANS, INC.;
MS. MARY DRAKE
(ATTORNEY AT LAW) APPEARED ON BEHALF OF THE
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY;
MESSRS. ALLEN SCHUERING AND MARK ENRIGHT (ASSISTANT STATE’S
ATTORNEYS) APPEARED ON BEHALF
OF THE COUNTY OF DUPAGE.
OPINION AND ORDER OF THE BOARD
(by J.
D. Dumelle):
This matter cones before the Board upon a May
13,
1983
petition,
a June
6,
1983 first amended petition and a July 21,
1983 second amended petition for variance filed on
behalf
of Bob
Evans Farms,
Inc. requesting relief from 35 Ill. Mm. Code
309.202,
309.241 and 306.105 to allow the Illinois Environmental
Protection Agency (Agency) to issue construction and operating
permits for a sanitary sewer system connection to a sewage
treatment facility which is on Restricted Status.
On July 5,
1983, the Agency filed a recommendation that variance be denied.
Hearing was held on December
1,
1983 at which all
parties
appeared.
Bob Evans
filed a memorandum on February 14,
1984 and
the Agency filed its brief in lieu of closing argument on
?larch
2,
1984.
Bob Evans, an Ohio corporation,
intends to construct a 5,000
square foot restaurant with seating
for 149 customers.
The
restaurant
is proposed to be located on a parcel of land of
approximately 1.5 acres
in the Village of Wi.lowbrook,
DuPage
County,
near the intersection of Interstate Rt.
55 and Illinois
Rt.
83.
Although vacant land exists in the area,
the vicinity is
rapidly growing with commercial and office development
immediately to the east and south
(Ex. Bi).
West of Rt.
83,
development is residential.
57-411
2
Bob Evans’ restaurant is proposed to be open 363 days per
year,
16 hours per day,
and will employ 60 to 70 people.
Wastewater from the restaurant is proposed to be discharged into
a sewer designed and constructed according to the Standard
Specifications promulgated by the Illinois Society of Professional
Engineers.
Daily wastewater flows are estimated at 5500
—
6600
gallons per day based upon a survey of actual water usage at five
local installations
(Ex.
C).
BOD (biochemical oxygen demand) and TSS
(total suspended
solids) will be controlled by a triple basin grease separator and
garbage grinders will be prohibited.
Wastewater discharged from
the restaurant is proposed to enter the adjacent County-owned
sewer system and flows will be conducted into the Marionbrook
Wastewater Treatment Plant which discharges into the west branch
of Sawmill Creek,
a tributary of the Des Plaines river system
(Ex. B2).
A larger wastewater treatment facility, the Knol.wood
plant,
which is in the design phase, will ultimately treat the
bulk of the raw sewage now fed to the Marionbrook plant.
The Agency placed the Marionbrook facility on Restricted
Status
in April,
1979 due to hydraulic overloading caused by
inflow/infiltration
(I/I) and poor plant effluent quality
(EX.
A2).
The facility was also the subject of People v. County
of DuPage,
80 MR 432
(December 4,
1980; modified on January
7,
1982)
and April
14,
1982).
In its modified order, the Eighteenth
Judicial Circuit Court of DuPage allowed the County of DuPage a
90
credit of the wastewater diverted from the Marionbrook
facility to an interim package plant,
known as the interim
Knoliwood plant, to allow for new connections.
For those not
holding permits from the Agency as of the date of the original
order
(December
4,
1980), the Court required that they be allowed
to connect only if they received a variance from the Board
“allowing the Agency to issue a sewer permit”
(See Ex. Al).
The
Board notes that it was not a party to the People v.
County of DuPage,
id., and that meeting all conditions
of that
order other than the obtaining of variance does not assure that
variance will be granted.
For variance to be granted, Bob Evans
must adequately prove that,
due to the imposition of Restricted
Status,
arbitrary or unreasonable hardship has resulted
(Ill.
Rev. Stat,
1981,
ch.
111½, par.
1035).
To evaluate the potential
hardships involved in this matter,
it
is necessary to examine the
purchase of this land and the efforts to develop it as well as
the environmental impact which would result from the granting of
variance.
Bob Evans argues that it would be unreasonable to deny the
requested variance in that the additional wastewater flows
57-412
generated by the proposed restaurant are insignificant
in
terms
of total Marionbrook flows and that compensating flow
diversion
(offloading) which
is required under the Court Order results
in a
net decrease in wastewater flows to Marionbrook~ Bob Evans
further states that denial
of the variance
will
result
in the
loss of over $17,000 spent to date for legal,
engineering,
architectural, municipal and other fees and costs incurred in
meeting the many requirements of the local building and zoning
authorities
(P11.
30~~31)*;the loss of annual
sales
tax revenues
to the Village of Willowbrook, the State and the RTA of $63,000;
the loss of
an approximately $57,000 fee to DuPage County for
the
space necessary permits
(Rh.
37—38); the loss of
60 to 70
potential restaurant employees (Rh,
36);
and the
loss of
revenues accruing
to the various contractors and professions
involved in the design and construction of the project.
The Agency,
on the other hand,
states that “any hardship in
the expenditure of funds
for legal,
engineering,
architectural
and municipal requirements after the imposition of restricted
status
is clearly self—imposed,” and that it certainly was
“not
the intent of the Modified Court Order for developers to spend
money after the entry of the order so as to create a hardship
to
meet the criteria of the order”
(Rec.
p.
3).
Bob Evans has not demonstrated arbitrary or unreasonable
hardship distinguishable
from that incurred by the
petitioners
in
~y~en~r~
v.
IEPA, PCB 80—175
(December 15,
1983),
Willowbrook Motel Partnership~
V.
IEPA,
PCB 81—149,
53 PCB 05
~
io~1Bank of çhicao v.
IEPA, ~
al.,
PCB 83—106
(February 22,
1984).
Petitioners
in each of
those cases were denied variances because the hardship they
experienced was no different than that which is
intended by the
imposition of Restricted Status which creates
a moratorium
on
development until adequate sewage treatment
is available.
Arbitrary or unreasonable economic hardship can generally
only be
found where the costs incurred prior to the imposition of
Restricted Status outweigh the environmental harm which would be
caused by the granting
of variance.
An exception to this
is that
costs incurred subsequent to the imposition of Restricted
Status
may be considered as hardship if such costs resulted from
firm
commitments made prior to the imposition of Restricted Status
or
were incurred based upon
a reasonable belief that the area
was
not under Restricted Status,
*
The hearing transcript consists of
a morning and afternoon
session separately numbered.
References to the afternoon session
are (Rh. pp).
57-413
In this case the
funds
to construct
the
restaurant
were
admittedly expended after Bob Evans knew of the Restricted
Status.
Bob Evans
argues,
however, that its expenditures
“were
made subsequent to the Court Order in No,
80 MR 432,” and
that it
“should not he penalized for relying upon a valid Court
Order and
the denial of the request for a variance would certainly be
unreasonable and arbitrary”
(Pet.
Memo.
p.7).
That
argument
ignores the fact that the valid Court Order upon which Bob Evans
supposedly
relied
required
Bob
Evans
to obtain a variance
from
the
Board.
To argue that reliance upon meeting all
conditions
of
that
Order
other than obtaining a variance
is
sufficient
to
support
variance
relief
is to read the requirement of a variance
out
of
the
Order:
the
granting
of variance
would
become
a
purely
ministerial,
and
therefore useless,
act.
The
only
other hardship asserted by Bob Evans
is the
adverse
impact of Restricted Status upon Wiilowbrook due to the loss of
potential employment opportunities,
taxes and consumer
spending
(see Rh.
49—51).
However,
the large majority of proposed
projects can make these same claims,
and these are the
types of
hardship
which
arc
expected
consequences
of
the
imposition of
Restricted Status,
Restricted
Status
serves to minimize
the
adverse environmental
impacts
of
an overloaded or
improperly
operated sewage treatment system.
It also provides an incentive
to remedy the system’s shortcomings.
Little
or
no
hardship
has
been
proven in this case
which
has
not been self-imposed
or
which
is
not
an
expected
consequence of
Restricted
Status,
The
granting
of
variance
might
still
be
appropriate
where
proof
of
hardship
is
minimal
if
a
substantial
environmental
benefit
were
proven
to
result
from
the
granting
of
variance,
However,
such
is
not
the case here.
While the
benefit
of
off-loading
is
discussed
at
length,
such off—loading
is
not
the result of Bob Evans’ activities
(P11,
11-12)
and the benefit
would in fact be comewhat diminished by allowing Bob Evans’
discharge to
offset
part
of
the
diverted
flows.
Finally,
while
there
is
some
testimony
regarding
the
ineffectiveness
of
the
interim
Knoliwood
pant
due
to
insufficient
flcws
being
directed
to
it,
that
reeul~c:
f corn
an
incomplete
interceptor rather
than an
insufficiency
of
f1cw~ which
could
be
diverted.
The
Board,
th~rcfore,
finds
that
Bob
Evans
has
failed
to
demonstrate
an
arbitrary
or
unreasonable
hardship
and
concludes
that
the
requected
variance
should
he
denied.
This
Opinion
constitutes
the
Board’s
findings
of
fact
and
conclusions
of
law
in
this
matter.
57-414
ORDER
Bob
Evans
Farms,
Inc.
is hereby denied variance from 35
Ill.
Adm, Code 309,202, 309.241 and 306.105 as they apply
to its
proposed
restaurant
development
near
the intersection
of
Interstate
lIt,
55
and
Ill.
lIt.
83 in
the
Village of
Willowbrook,
DuPage
County.
IT
IS SO
ORDERED.
I,
Christan
L,
Moffett,
Clerk of
the
Illinois
Pollution
Control
Board hereby
certify
that
the
above
Opi,~nion
and Order was
adopted
on the
_____day
of
~
1984 by a
vote
of
~
—a
Christan
L.
Moffe~OClerk
Illinois
Pollution
Control Board
57-415