ILLINOIS POLLUTION CONTROL BOARD

July 14,

1983

WILLOWBROOK MOTEL PARTNERSHIP,

a limited partnership,

Petitioner,

PCB 81—149

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY

and THE COUNTY OF DuPAGE,

)

Respondents.

OPINION AND ORDER OF THE BOARD

 (by J.D.

 Durnelle):

This matter comes before the Board upon a September

28,

1981 petition for variance filed by the Willowbrook Motel

Partnership (Partnership),

 an amended petition filed November

9,

1981 and a second amended petition filed March

3,

 1983.

On

December 10,

 1981 the Illinois Environmental Protection Agency

(Agency)

 filed a recommendation that variance be denied, but

on April

5,

 1983 it filed

an

amended recommendation indicating

that variance should be granted subject to certain conditions.

Hearing was waived

and

none was

held.

The Partnership requests relief

 from

35

 Iii. Mm.

 Code

306.105(a)

 and 309.241(a)

old

 Rule 604(b)

 and 962(a)

of

Chapter

3:

 Water Pollution

 to allow construction

of

 a 106—

unit motel and its subsequent connection to the DuPage County

Sewer System and Marionbrook Sewage Treatment Plant

 (Plant)

in

DuPage County which is operated by the DuPage County Department

of Public Works

 (DPW).

 In its original petition the Partnership

requested variance “until

 such

time

 as the Marionbrook Sewage

Treatment Facility is expanded

or

a new facility constructed”

(Pet.

p.

2).

 In its second amended petition. this relief

is

requested to commence at “such

 time as the Knollwood East

interceptor

 is completed and offloading

 from Marionbrook

is

begun”

 (2c1 am. pet.,

p.

4).

The 106-unit motel

 is proposed to be constructed on the

northeast corner of the intersection of

 Interstate Route

55

and Route

 83 in unincorporated DuPage County.

 The surrounding

vicinity is a rapidly growing residential

 and office environ-

ment which includes

 a Holiday

 Inn Motel approximately 500 feet

north of the subject property and a Denny’s Restaurant a short

walk from the property.

 The Partnership owns and operates 15

motels

in

Wisconsin,

 Illinois, Missouri,

 Minnesota and Nebraska,

with additional

 facilities planned or under construction.

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Wastewater discharged from

the

proposed motel

 is intended

to be discharged to the DuPage County Sewer System along 79th

Street and

 from there to the Marionbrook Plant which

 in turn

discharges

 to the west branch of Sawmill Creek,

 a part of the

Des Plaines River system.

The Eighteenth

Judicial

Circuit Court

 in DuPage County

(~v.County_~DuPa~,

 80 MR 432, December 4,

 1980),

found

that the Marionhrook Plant was discharging in

violation

of effluent limits and accepting flows

excess

 of its design

average hydraulic capacity, resulting in a threat to public

health and welfare.

 However,

 the Court also

found that “it

is

in

the

best interests of the public to allow construction

permits to be issued by the County so that development may

continue in the region served by the Marionbrook plant while

at the same time phasing

 in ‘those connections

 as the plant

demonstrates its

ability

treat

 the new flows to acceptable

environmental effluent limits.”

 It went on to order that

the County be allowed to issue connection permits

for

 flows

tributary to the Marionbrook Plant despite

the

imposition of

Restricted Status by the Agency,

 “to all those who have

previously received sewer permits from the Agency,

 as well

as

additional wastewater flows” under certain conditions (generally

based upon effluent quality).

 The Court also ordered the County

“to submit a

 final Facilities Plan for a new treatment plant

commonly referred to as the Knollwood plant,” to which

 flows to

the Marionbrook Plant over

 4 million gallons per day (MGD) are

to be diverted by January

1,

 1985,

January

1982

the

 Circuit

Court

amended

its

order

80 MR 432 to

require

construction

 and operation of an “interim

package treatment

plant

known

commonly

 the Knoliwood interim

plant” and allowing

the

County to divert wastewater flows from

the Marionbrook

Plant

 to the

Knollwood interim plant of up to

0.25 MGD,

90

 of which would he credited to

the

 County to allow

for new connections.

 Further, the Court added a condition

for future connections to the Marionbrook system that “until

completion of the Krioliwood permanent facility those who did

not hold a permit

from the Agency as of the

date of the original

 order (December

4,

 i980)’~

would not be allowed to connect unless

they have

received a variance

 ‘from the

Board “allowing the

Agency to issue a sewer

permit.”

The

second amended Petition

was filed in an

attempt

to fulfill that condition.

Prior to the Court~samended order,

 the Agency had

recommended denial of the requested variance based upon its

belief that the Partnership1s allegations that “the Marionbrook

plant should not even

he

on restricted status”

 (Pet.

p.

 8) was

based upon inaccurate flow data, that the plant continued to

violate effluent limitations, that plant expansion would not be

completed on schedule, and that any hardship alleged

 is self—

imposed.

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3

In response to the Partnership’s second amended petition,

the Agency filed an amended recommendation which concludes that

since the Partnership’s “request for variance

 is consistent with

the Amended Court Order

in

 80 MR 432

 it is recommended that this

request be granted.”

 Such

 a conclusion is unwarranted as presented

in that one

 of the conditions of the amended order is that

a

variance he obtained from the Board.

 The Board

 is only empowered

to grant variances upon a showing of arbitrary or unreasonable

hardship.

 Thus, the Board is required to determine whether such

a showing has been made despite the Agency’s apparent failure to

consider hardship

in

 its amended recommendation.

its

second

 amended petition the Partnership alleges that

denial

 of variance would result

 in an arbitrary or unreasonable

hardship due to the loss of

 job opportunities and the concomitant

income

 arid taxes to the State,

 the loss of sales and enhanced

property taxes,

 It also alleged that denial would create

a

private hardship to the property owner.

 However, none of these

conclusions constitute anything more than the expected consequence

of

 Restricted Status.

 (See Crook Development Co.

 et al.v.

 IEPA,

PCB 80—230,

 42 PCB

 53, June

10,

 1981 and Century

 21 AG Realtors,

et al.

v.

 IEPA,

 PCB 81—8,

 43 PCB

 17, July

 9, 1981).

Any

new

development will generate jobs,

 income,

 taxes to the Stat~and

(hopefully)

 income to the property owner.

 However,

 the Board has

determined that these benefits are outweighed by the adverse

environmental

 impact of developments which aggravate the problems

 associated with an improperly functioning sewer

 and treatment

system.

 Therefore,

 the imposition of Restricted Status

 is r~xandated

to minimize increases

 in flows to the improperly functioning

system,

 and as an expected consequence growth opportunities are

deferred until the system

 is brought

into

 compliance with Board

regulations and the Environmental Protection

 Act.

In its original petition the Partnership had alleged other

hardships

 including the

cost

 of obtaining “Residential Equivalents”

from DPW to allow connection to the sewer system,

 the substantial

increase in costs if reapplication

 is necessary and the loss of

“priority”

 if variance is not granted.

 However,

 the Agency

concluded

 in its original recommendation,

 that such hardship,

if

any, was self--imposed in that connection was precluded by Court

Order at the time of purchase and “constituted a gamble” on the

part of the Partnership

 “that a variance would indeed be granted

enabling... it

 to continue the development of the property.”

The Board notes that even if the connections had been allowed

under the Court order at that time,

 “any permit issued by the

Agency without a proper variance would be void” (County~D~~e

V.

 IEPA, PCB 80—160,

 40 PCB 335, January 22,

 1981).

 Thus,

 even

putting the Court order

 aside,

 the hardship is self—imposed in

53-07

that the system was on Restricted Status at the time of purchase

of the “Residential Equivalents.”

 Further, claims

 of economic

loss, based on increased costs due to

 inflation and loss of

immediate return on the property,

 simply represent

 a delay of an

investment opportunity and not an arbitrary or unreasonable

hardship.

 Finally,

 the allegation that delay in construction

will

 cause the land to lose its present value

 is insufficiently

supported to support a finding of

 arbitrary or unreasonable

hardship.

Therefore, the Board

 finds that there has been no showing

of

arbitrary or unreasonable hardship,

 and variance,

 therefore, must

be denied.

This Opinion constitutes

 the Board’s

 findings of fact and

conclusions of law in this matter.

ORDER

Variance from 35

 Ill.

 Adm. Code 306.105(a)

 and 309.241(a)

is

hereby denied to Willowbrook Motel Partnership.

IT

 IS SO ORDERED.

I, Christan L,

 Moffett,

 Clerk of the Illinois Pollution

Control Board,

 hereby qertify that the above Opinion and Order

was adopted on the

 day of

____

____-

 1983 by a

vote of

~

Illinois Pol

53-08