ILLINOIS
POLLUTIOt’~ CONTROL
BOARD
March
19,
1981
JAMES
A. NOBLE,
)
Petitioner,
v.
)
PCB 80—215
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
Respondent.
JAMES
K. YOUNG APPEARED ON BEHALF OF PETITIONER.
WILLIAM J. BARZANO, ASSISTANT ATTORNEY GENERAL, APPEARED O~
BEITAL~
OF RESPONDENT.
OPINION AND ORDER OF THE BOARD
(by J.
Anderson):
This matter comes before the Board on the petition for
variance filed November 19,
1980,
as amended January
30,
1981,
for variance from Rules
601, 602(b) and 962 of Chapter
3:
~1ater
Pollution.
Petitioner, James
A. Noble,
seeks variance in
order
t~
connect a planned 20—unit condominium building to be constructed
in the Village of Lombard
(Village), DuPage County,
to one of the
Villag&s sewers which is on restricted status due
to periodic
surcharging.
The Board will construe the petition as seeking
variance solely from Rule 962(a).
The Illinois Environmental
Protection Agency
(Agency),
in both its original Recommendation
of January
5,
1981 and its amended one of January
16,
1981,
has
expressed the opinion that variance should be denied.
Hearing
was held on January 30,
1981,
at which Village residents
presenteri
comments.
By way of background,
the Village of Lombard,
in DuPage
County, has had considerable problems with its sewer system,
much
of which consists of combined sanitary and storm sewers.
In its
Recommendation, the Agency states, without specificity,
that
“much or all of the Village’s
sewer system has been on restricted
status since March of 1974.”
(Rec.
3).
As the result of an
earlier enforcement action brought by the Agency before the 1~oard,
the Village was ordered to comply with a stipulated settlement
providing,
in part,
that certain measures be taken
to eliminate
sewer surcharging Illinois Environmental Protection Agency v.
Village of Lombard, PCB 75—101,
23 PCB 203
(August
5,
1976).
Notwithstanding, on June
22,
1979
a large portion of the Villaqe’s
sewer system (not including that of the proposed condominium
sit-’)
was placed on restricted status.
On April
11,
1980,
the Agency
41—105
and the Attorney General
filed a suit against the Village
in the
DuPage County Circuit Court People and IEPA v. Vi~J~eof Lombard
et al.,
80 CH 245.
The suit charges the Village and its officials
with violations of the Act,
the
Board’s rules, and the Order
entered in PCB 75—101,
in connection with the operation and
maintenance of the Village’s
sewer system.
(It is anticipated
that this action may come to hearing in September,
1981.
R.
33)
Finally, on July
16,
1980 the Agency expanded the area of the
sewer system on restricted status to include that serving
most of
the Village,
including the site of Noble’s proposed condominium
(Resp. Ex.
1,
Ex.
A to Parties Ex.
1).
The parties have stipulated to many of the facts
in
this
action
(Parties Ex.
1).
In late 1979 and early 1980,
Noble
enbered into various contracts and agreements
for the purchase
of certain property in “downtown” Lombard upon which to build
his proposed condominium.
The agreements and contracts were and
are, however,
contingent first on the Village’s rezoning of
the
property to limited general residential use,
and second the
issuance of necessary building permits.
None of these con-tracts
has been
“closed” to date.
On March 27,
1980 the Village did approve the rezoning of
the condominium site, but also added a condition:
that Noble
acquire an unimproved property adjacent to the site,
and maintain
that additional property in its unimproved, densely wooded state.
Noble has entered into purchase contracts for this required “buf-
fer” property,
as well
as additional adjoining property to be
purchased at the insistence of the sellers of the required “buffer”
property, with closing again contingent on issuance of necessary
building permits.
The condominium site is presently served by a combined sewer
line and a separate storm
line.
Use of a septic system would
not be an acceptable alternative to connection of the condominium
units to the sewer system (Parties Exhibit
1).
Subsequent
to
the July
16,
1980 imposition of restricted status on the sewers
serving the site, Noble developed a plan to reduce the flow to
the combined sewer
line.
This would involve
the disconnection
of a storm inlet from the combined sewer
line,
and its recon-
nection to the separate storm line (Stip.
4).
At hearing,
it was
explained that this storm water would not then be transported to
the Village’s treatment plant, but would instead flow to a
retention pond tributary to the east branch of the DuPage River.
Petitioner also intends to take certain measures to reduce the
rate of flow to the storm sewers, by installation of restrictors
and retention facilities on both the condominium site and
the
adjacent unimproved property
(R.
9-10).
It was further stipulated that,
assuming the accuracy of
the
figures of Noble’s engineers, that the 20 unit condominium would
add 0.04 cubic feet per second
(cfs)
of sanitary sewage to the
flow of the combined sewer
(60 P.E.).
However, disconnection of
the storm inlet from the combined sewer, and its reconnection
to
41—106
the separate storm line would,
if the connection were suitably
restricted to 1.00 cfs, result in a net decrease
to the combined
sewer of
0.96 cfs,
and a net decrease to the storm sewer of 0.40
cfs.
However, the parties also agree that “notwithstanding
this flow rate reduction any surcharging problems experienced by
the
designated
portion of the Village
of Lombard’s sewer
lines
..will not he resolved by the Petitioner’s plan alone.”
(Partie;
Ex.
1 and Ex.
8
(a,b,c)
thereto).
The Agency pointed out in argument that the combined sewer
involved is one identified
in the complaint in the Circuit Court
action, and that
it is alleged that the line periodically sur-
charges.
While the Agency sympathizes with petitioner
to some
extent,
it believes that given the Village’s failure to take
appropriate remedial action concerning its sewers,
the fact that
surcharging will continue to occur (although petitioner’s flow
will not aggravate it), and the “prospective” nature of Noble’s
alleged financial hardship,
that variance should he denied
(R.
54—58).
Noble’s testimony is that the land purchase contracts for
the site and the “buffer” property provide for closing by
September 1,
1981.
He had intended to finance the purchase of
both properties by obtaining a construction loan,
for which he
has not yet applied.
While the record is somewhat unclear
in
some areas as between fees actually paid
in connection with this
project,
and amounts
to which Noble has
“obligations” which may
be forgiven, Noble appears to have already spent approximately
$10,000 in architects and engineers fees and related expenses
(incurring “verbal obligations” for $12,000 more),
as well as
obligations
for $18,000 in attorneys fees relative to the zoning
matters.
He calculates that if the condominium project is com-
pleted as planned, that he would realize net profits of between
$100,000 and $150,000.
These profits would be lost if he does
not receive the requested variance,
close the land purchase
contracts,
and proceed with his project
(R.
18—22,
25—31).
Three citizens testified in opposition to
the grant
of
variance,
and presented five letters
from more citizens who could
not be present at hearing
(Citizens Ex,
1).
The citizens ex-
pressed their concern over the Lombard sewer situation generally,
and their appreciation of the protection
the restricted status
connection ban gives them from aggravation of their current
sewer surcharge problems.
Mrs. Nancy Manna explained that the
storm line to which Noble expects to direct his
storrnwater has
“tremendous problems” and that the retention pond to which
it
is tributary fails to retain stormwater
(R.
42,
53).
To rebut
this testimony, Noble introduced the affidavit containing
an
assertion of Wes Brazas,
Public Works Director, that the storm
line in question “has no known transportation or backup problems”
(Pet.
Ex.
1).
The Board finds that petitioner has demonstrated arbitrar~r
or unreasonable hardship in that he commenced his project before
41—107
imposition of restricted status on
-the sewer serving his proposed
site, that most,
if not all
of his obligations and expenses
were incurred before imposition of the sewer ban, and that the
properties must be purchased,
if at
all, by September
1,
1981.
No allegations have been made as to when,
if ever,
the Lombard
treatment plant and sewer system will be upgraded
so as to have
the capacity to treat its current flows,
let alone additional
ones; meanwhile,
the affected citizens clearly are experiencing
severe and continuing hardships as
a result of these highly
un-
acceptable conditions.
However, under the unique plan presented
in this case,
it has been stipulated that the petitioner can
achieve a net reduction in flows to the combined sewers
as
well
as a net reduction in the diverted storm flows
if this variance
is granted.
Under these circumstances, the Board will grant a
variance from Rule 962(a) to connect the planned 20—unit condo-
minium building, conditioned upon the proper implementation of
the stipulated offset plan.
(The Board is concerned with the
dispute over whether the
storm
water
line to
the retention basin
is functioning properly, and considers its proper operation an
essential part of the condition ordering implementation of the
offset plan.)
To further minimize loadings to the sewers, the
Board will require,
as an additional condition, the installation
of water conserving water closets, faucets and shower heads
in
each unit.
This Opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
Petitioner,
James
Noble is hereby granted variance from Rule
962(a) of Chapter
3:
Water Pollution to allow issuance of
sewer
construction and operation permits
for a 20 unit condominium
building subject to the following conditions:
1
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are to he installed in each unit as it is constructed.
Noble and
the Agency shall develop a schedule for a reasonable number of
inspection tours of the building by Agency personnel who are
to
verify that water conservation devices
have been installed prior
to occupancy of the building.
2.
Petitioner shall
expeditiously proceed to disconnect
the
storm inlet from the combined sewer, pursuant to the plan outlined
in the Joint Stipulation of Facts, which plan is incorporated
herein by reference as if fully set forth.
3.
Within forty—five days of the date of this Order,
the
Petitioner shall execute and forward to the Illinois Environmental
Protection Agency, Enforcement Programs (Water Pollution),
2200
Churchill
Road,
Springfield, Illinois
62706,
a Certificate
of
41—108
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 this matter
is being appealed.
The
for-i
of the certificate shall he as
follows:
CERTIF ICATE
I,
(We),
______________________
___________,
havin~jread
the
Order
of
the
Illinois
Pollution
Control
Board
in
PCR
80—21~,
dated
__________________________,
understand
and
accept
the
said
Order,
realizing
that
such
acceptance
renders
all
terms
and
con-
ditions
thereto
binding
and
enforceable.
Petitioner
By:
Authorized
Agent
—
Title
Date
IT
IS
SO
ORDERED.
I,
Christan
L.
Moffett,
Clerk
of
the
Illinois
Pollution
Control
Board,
hereby
certify
that
the
above
Opinion
and
Order
were
adop~d
on
the
/
~‘
day
of
/)
~
~,
,
1981
by
a
vote
of
~—~-‘
.
~t~..~ ~
4)
~
Christan
L.
Moffe~/
Clerk
Illinois
PollutionControl
Board
41—109