Illinois Pollution Control Board
February 22, 1984
LAMPLIGHTER REALTY
AND DEVELOPMENT COMPANY,
Petitioner,
v.
)
PCB 83—157
ILLINOiS ENVIRONMENTAL
PROTECTION AGENCY,
Respoh(~ent.
ROY M.
HARSCH,
ESQ., OF MARTIN, CRAIG, CHESTER
& SONNENSCHEIN,
APPEARED ON BEHALF OF PETITIONER.
MARY E. DRAKE,
ESQ,, APPEARED ON BEHALF OF RESPONDENT.
OPINION AND ORDER OF THE BOARD
(by J.
Marlin):
On October 26,
1983 the Lamplighter Realty and Development
Company
(Lamplighter)
filed
a Petition for Variance from
35
Ill.
Adrn.
Code 309.241(a) as
it relates
to a connection
to a
sewer plant which is
on Restricted Status.
Th3 Illinois
Environmental Protection Agency
(Agency)
filed on December
14,
1983 its Recommendation that the variance be granted.
A hearing was held on January 13,
1984 and petitioner waived
the right to file
a post—hearing brief.
In
1973 pet~itioner envisioned and designed
a
95 acre area
which included
a
75 acre planned unit development.
This develop-
ment was to be
a mixture
of commercial, office, and high—tech
light industrial uses.
A series of option and land exchange
contracts was entered into with the landowners
(the Theideis)
which provided that the petitioner would purchase a right
to
buy
95 acres in installments,
After the first option was
exercised and the land developed,
the proceeds would be used to
purchase the next option,
until the total acreage was purchased.
Ground-breaking occurred in late 1976 or early
1977 when public
water and sewer service were available.
An annexation agreement
between Lamplighter, the Theidels and the Village of Willowbrook
was entered into on July 25,
1977 which imposed certain conditions
on the petitioner as developer
(P1.
Exh.
3).
The conditions
56-22b
—2—
listed
be:iow were
to be met regardless
of the petitioner’s
financial
condition
or status
of
the
project:
(1) construct
a
street:~
(2)
purchase
and
dedicate
one acre of land to
the Vjllage,
~3) construct and complete a
12—inch water main,
and
(4)
make ~ commitment for
off—street water management.
If
the petitioner
could not fund these
improvements, the Theidels
as
signators
would be liable
(P1.
Exh.
3).
Meanwhile, the
Theidels have bought a
200
acre farm
so as to build
a bigger
nursery
than the former one, which was
on the land which
is
the
subject
of
these
proceedinq~.
in
order
to
have
enough
cash
to
build,
the
farm
was
put
up
as
collateral
fcr
loans
(P1.
Exh.
7).
The
nursery development is not complete because
of
lack of payment by petitioner, due to the imposition
of
restricted status on the Marionbrook plant.
On
April
30, 1979 the Marionbrook sewage treatment plant,
under
jurisdiction
of
DuPage
County
Department
of
Public
Works
(DuPage),
was placed on Restricted
Status.
Petitioner tried
to arrange for sewer and water service from
the Hinsdale Sanitary
District
but
was
unsuccessful.
Pursuant
to
court order in People
v.
Count~! of
DuPaqe~
80
MR
432,
dated
April
14,
1982,
before any
new
connections
to
Mar:Lonbrook
plant are made,
current
flows
must
be
off~ioaded
so
as
to
achieve
a
net
reduction
in
flow
to
the
plant.
Additionally,
DuPage
may
connect
up
to
75
single
family
residents!
population
equivalent
units
(P.E.
)
per
month;
the
units
may
accumulate
Although
I
is
estimated
that
550
P. E.
units
are
needed
for
the
proposed
project
and
many
P.E.
units
have
accumulotcd,
no
off-~lccdinç
has
occurred
due
to
various
delays.
Therefore,
no connections
are
allowed
at
this
time.
DuPage
plans
a
series
of
Interceptor
Systems
and
additional
sewage
treatment plants
to
accept
off-loading
from
Marionbrook
and
eventually
phase
out
that
facility.
Knoliwood,
an
interim
plant,
has been
completed
and
DuPaqe
plans
to
off—load
179,950
gallons
per
day
from
Marionbrook to
the
interim
plant.
Construction
is
to
begin
on
a permanent Knollwood
plant
in early 1984.
After
the
permanent
plant
Is
operating,
these
improvements
should
effectively
result
in
the
lifting
of
restrictive
status.
As
in
any
variance
proceeding
the
burden
is
on
the
petitioner
to
show
that
compliance
with
the
Board
rules
and
regulations~
specifically
35
III. Adm.
Code
309.2~l(a),
would
Impose
an
arbitrary
or
unreasonable hardship.
The
imposition
of
restricted status
on
the
Mar:Lonbrook
Plant
suddenly
halted
the
petitioner~s
project
which was
proceeding
under
a
phased
schedule.
This
situation
prevents
the petitioner
from
developing
the
project
which
was
to provide the funds ~to
honor
his
annexation
agreement
and
option
to purchase the
remainder
of the
Theidel
land.
The petitioner remains obligated
to meet
the annexation conditions even
though he cannot complete
the
project.
Three land sale
agreements worth $700,000 were
56-226
—3—
lost because of restricted status and the resulting unavail-
ability of sewer service
(Record at 20), which also has had
a chilling effect on the number of potential buyers.
In addi-
tion, petitioner must expend at least $275,000 to fulfill
the conditions
in the annexation agreement
(R at 18-20).
As
of October 1983 Lamplighter has paid $1,536,000 for 48 acres
and is obligated under contact ~to buy
27 more acres for
$1,125,000
(P1.
Exh.
1).
As of October
1983,
$1,781,834 has
been
expended
(including the cost of
48 acres)(P1.
Exh.
1).
Future costs are estimated to be $2,539,000, which includes
the purchase of
27 acres,
completion
of
the annexation agreement
conditions, and interest
(P1.
Exh.
1).
Total costs are
$4,320,834
(P1.
Exh.
1).
The Agency has recommended that this variance be granted.
The proposed development and its
550 P.E.
units will be phased
in during the
time
the
off-loading
plan for the Marionbrook
Sewage Treatment Plant
is being implemented.
The petitioner’s
design also provides
for a storm water capture and retention
feature
which
will
reduce flooding and infiltration inflow
problems
external
to
the
site
(R
at
63).
According
to
the
Agency,
completion
of
the
petitioner’s
project
will
reduce
total
adverse
environmental
impact.
In
summary,
the
actual
development
was
commenced
long
before
imposition
of
restricted
status.
Efforts to arrange
for alternate
sewer service proved unfruitful through no fault
of petitioner.
Equally, if not more importantly, the petitioner
has
designed
the
project
so
as
to
decrease
flooding
problems
and provide
a lessening of environmental impact.
Balancing
the
financial hardship and the reduction
of
environmental
impact,
the
Board finds that denial of the
variance
would
impose
an
arbitrary
or
unreasonable
hardship
on the petitioner.
Therefore,
the Board grants
a
variance from
the terms of
35
Ill.
Adr1l. Code
309.241(a).
This
Opinion
constitutes
the
findings
of
fact
and
the
conclusions
of
law
in
this
matter.
ORDER
Lamplighter Realty and Development Company is hereby
granted
a
variance
from
35
Ill.
Adm..
Code
309.241(a)
to
allow
the
Agency
to
issue
construction
permits
for
sewer
extension
to
service
Willowbrook
Office
Campus
planned
unit
development
of the petitioner;
thereby enabling DuPage County Department
of Public Works
to issue the necessary sewer connection permits,
provided that:
56-227
—4—
Within forty five days of the date of this Order,
Petitioner shall execute and forward to the Illinois Environmental
Protection Agency,
Compliance Assurance Unit, Water Pollution
Control Division,
2200 Churchill Road, Springfield,
IL
62706,
a Certificate of Acceptance and Agreement to be
bound to all terms and conditions of this variance.
This
forty-five day period shall be held in abeyance for any
period during which this matter is being appealed.
The
form of the certificate shall be as follows:
CERTIFICATE
I,
(We)
__________
_______________________________________
having
read
the
Order
pf
the
Illinois
Pollution
Control
Board
in PCB 83—157, dated ____________________________
understand
and
accept
the
said
Order,
realizing
that
such
acceptance
renders
all terms and conditions thereto binding
and enforceable.
Petitioner
By:
Authorized Agent
Title
Date
I,
Christan
L.
Moffett,
Clerk
of
the
Illinois
Pollution
Control Board, hereby certify the above Opinipn and Order
were adopted on the
~
day
of
~
.~,,
1984 by
a vote of
~
7
j
Christan
L.
Moffett,
rk
Illinois Pollution Control Board
56-228