ILLINOIS POLLUTION CONTROL BOARD

February 19,

1981

R. ELLIOT POLITSER,

)

)

Petitioner,

)

v.

)

PCB 80—164

ILLINOIS ENVIRONMENTAL PROTECTION

)

AGENCY AND CITY OF ST. CHARLES,

)

)

Respondents.

MR. HARTMAN STIME APPEARED ON BEHALF OF THE PETITIONERS;

MR.

PHILLIP R. VAN NESS APPEARED ON BEHALF OF THE

RESPONDENT,

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY;

MR. ALLEN

L. LANDMEIER APPEARED ON BEHALF OF THE RESPONDENT,

CITY OF

ST. CHARLES.

OPINION AND ORDER OF THE BOARD

(by 3D. Dumelle):

R. Elliot Politser

(Politser)

filed a Petition for Variance

on September 10,

1980,

requesting variance from Rules 604,

951 and 962 of Chapter

3:

Water Pollution,

to allow the issuance

of sewer connection permits despite the Restricted Status of the

receiving sewer system.

On September 18, 1980,

the Board ordered

the City

of St. Charles

(City),

owner of the sanitary sewer and

treatment plant

(STP)

to be joined as a party.

The City was

joined and objected to the grant of the variance on October

14,

1980.

On October 27,

1980,

the Illinois Environmental Protection

Agency filed a recommendation that

the variance be denied.

Hearing

was

held on November

6,

1980.

No members of the public

were present or testified.

Politser requested variance to enable him to build a 120

unit apartment complex for the elderly.

The project was first

planned in 1971 by Politser’s predecessor in title, Somerset

Apartments,

Inc.

OBREC Partnership, of which PoJ.itàer is the

managing partner, then entered into an agreement with Somerset to

receive

a 50

interest

in the subject property

(R.22,

Pet.

Ex.

6).

On November

6,

1972,

the City issued a special use permit

to allow construction

of a planned unit development

(PUD)

on the

property

(Pet.

Ex.

11).

40—523

---

—2—

Before construction had begun, the special use permit

expired by its own terms on November

6,

1975, because no

substantial progress on the project had been made

in the

intervening three years,

and the zoning reverted to an R—5

Multiple Family District Zoning classification,

allowing only

12

apartments on the property.

The reason given for the delay is an

extended series of court battles to clear title to the property

which were not finally resolved until 1979.

Politser now alleges that he will apply for issuance of

another special use permit allowing him to construct

2

medium—rise buildings containing

60 units each as a senior

citizens development

(R.37).

However, on March

10,

1978,

portions of the City~ssanitary sewer system had been placed

on

Restricted Status by the Agency after it determined that these

portions were subject to surcharging and backups during periods

of wet weather.

Since Politser’s proposed development would be

tributary to sewer

lines which are subject to the restriction,

the Agency denied permit issuance.

Thus,

Politser also needs

a

variance from Rule 962(a).

At hearing the request for variance

from the other rules was dropped as unnecessary

to allow the

permits to issue.

Politser alleges that under normal conditions the wastewater

attributable to his development would have no effect on the STP

since it is operating at less than 50

of its design capacity.

That is uncontroverted.

Politser goes on to allege that the

additional

flow would have little impact on bypass problems

in

that as much as 36.3 million gallons were bypassed in 1976 and

only 0.22 million gallons would be added to that by his project.

This,

and the conclusion that the Politser development would not

cause additional water quality violations are based on Pet. Ex.

4,

a study prepared for an earlier, similar petition for variance

(Kent Shodeen and City of

St. Charles v. EPA,

PCB 78—173,32PCB

35, November

2,

1978).

Pet.

Ex,

4 was admitted over objection on the basis that it

was accepted as an exhibit in Shodeen.

Its admissibility is

certainly arguable and,

as such,

it was properly admitted

pursuant to Procedural Rule 320.

However,

the weight to be given

to it is lessened by the fact that it was prepared three years

ago and prior to the granting of variances to Shodeen and others

and was admitted in this case without the availability of any

witness involved in the preparation of the report who could be

cross—examined.

However, even if the findings of Pet. Ex.

4 were to be

accepted as true and of continuing validity, the report only

examines wastewater bypasses in the St. Charles sewer

system, and

that is not the sole adverse environmental impact involved in

this matter.

40—524

---

—3—

Geor~te

.uiraam,

Professional Engineer with

RJN

and Associates,

testified

c~t

a greater load on the sewer system could result

in

add~tion~!

~surcharging,additional backups into the homes,

sewer

r~aok~ç~

into the homes and additional overflows into

the river

~

storm

sewer system~ (R,152)~ That testimony

is

further

s~p.~rted

by

evidence of sewer surcharging and related

haso~ent

~

Laps

documented

by

a

Sewer

System

Evaluation

Survey

conducted

~ der Mr~.

Braam~s

direction (City Ex.

6,

and

see

also

iFP~ T~.

l~3).

It

is

uncontroverted that the sanitary

sewez

uri~rruns through the proposed site experiences surcharging

arid

that

a~cs

t~1~tary

to

that

sewer

line

experience

basement

backups ~

to t~

~

s~rcharging,

There

is,

however,

no testimony

as to ~hc ~~‘Loit/ of

this environmental harm.

There is also,

however.~~o ~t~posal

o

mitigate

this impact by the petitioner.

Th~

~.i.

~ronmental harm must be balanced against the hardship

that wo~~

imposed

upon

Politser if the variance were to

he

don~r

Politser

alleges

that

this

hardship results from

cupenso.~

5

u~u~red

in

obtaining

the

property

as

well

as

the

loss

in poLe~ I

value of the subject property.

cCflt

~230,

000

to

acquire

title

to

the

property:

$45,000

ti~t~alpayment,

a

$30,000

note,

$85,000 redemption

expcnnu~

~.

~he

Geneva

Bank,

$65,000

interest

over

an

u h,

S5,000

in

taxes,

$22,000

attorneys~

fees

and

$8~000uiscelianeous expenses,

less $30,000 from the

sale ci~~ ~ ~rlat

on

the

property

(~,32—33).

Of

these

expenses,

apparcntl; ~Il but

an

unspecified part of the purchase price

wore in~x.

f~d

aolely

to

acquire the property rather than having

been inc~r;~:l

to

prepare

the site for devlopment

(R.74—76),

That unelec

tied

pait

of

the purchase price included engineering

costs

and

chitertural

fees related to planning for the

POD

dovnJ~,

~nt

prior to OBREC obtaining interest in the

pxopoit~

(~

74),

While O~REChas retained an architect, he

has nut ~

paid and,

apparently, has not performed any services

(.R.75~’7t,

~t the date of the hearing in this matter, construction

had

not c~jan and

there

is

no

testimony

as to any substantial

efforts

Lo prepare

for

commencing

construction~

No

contracts

have

been ~ntered into

for

construction

and

no

monies

have

been c~um~din planning for the

housing

project

for

the

elderly,

Polities;: has abandoned his

original

plans

for

a

POD

development

and

the prop’-rLy is not properly zoned for the new project, which

is

siqnificar~Llydifferent from the previously planned POD

(IL

64

65)

Obli:.

it is regrettable that Polit~erwas involved in

litigari~nfor eight years

to clear title to his property,

the B~a~d

eannot consider those expenses in determining hardship

based upon the present variance request.

Politser~spresent

position

is essentially the same as any other person who owns

propeity from which he hopes to profit through development

of

it.

~.rdeed,Politser~sallegations of economic hardship

40—525

---

-.4—

,

develop the property

are based

largely

that the City, which opposes a granting

.,~ethe resoning.

If it does not, Politser

ci’rdship from a denial of variance.

If

-

such cases, Restricted Status would

t.

a.

There

is

not even any

testimony

in

for

the

elderly

is

needed

in

the

City

of

assuming

that

Politser

paid

considerably

iezty

than

he

would

have

had

he

known

,.tt

not

be

allowed,

many

of

the

Ut

hardship

were

incurred

prior

to

the

.

clearly

associated

with

the

POD

y

proposed

development

(R.58-59).

•

-

itson for Variance Politser alleges

•

St. Charles’ sewer system will eliminate

)8i

(though

the Agency points out in

s- the scheduled completion date is in 1983).

e, if Politser

can

obtain

the

proper

toning,

oject

at

that

time

under

a

Construct

Only

dshsp

would

be

the

cost

of

carrying

the

of

this

Order

until

commencement

of

• ads

that

there

has

not

been

a

showing

of

La

hardship

in

this

matter

and

the

•

t’ld

be

denied.

Thth

Cj

an

r

•

Lutes

the

Board’s

findings

of

fact

•

a this matter.

ORDER

rtfett, Clerk of the Illinois Pollution

‘

certify that

.the

above

Opinion

and

Order

jj”

dayof-7

,1981by

Wit

-

-

Illinois Polluti

ontrol Board

due to

Uic

on

the

ajm

Ps4v.

I

of

vsrian,c

v41

•t.

will

hero

~.ztLi.s.

.

a..’

varihnco

tur.~

ci

become

n.ins1~

i

the

record

teal

‘

St.

C’harlc

i~L1StI’j’a.

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more

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thct a

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u-sr

cts3tt.

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.1

zonioq

~

rath

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that

in~.t-

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its

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.‘

Even

~s’

ii ~

he

could

c~:tp1•

permit,

b’i Lb

propert~g tr

.w

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construcri

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~J

thu.;,

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5

a

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and

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LlJsot

is

heibby

1c’ni~~s

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t

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C1ri~tsi

a

Control

fiuard,

1’

r.

was

adopt’4

on

tia.

a

voto

of

~-ç

.

-.

a

request

for

variance

in

this

matter