ILLINOIS POLLUTION CONTROL BOARD
    June 13,1975
    ARNOLD COHN,
    )
    Petitioner,
    V.
    )
    PCI3 75—102
    ENVIRONMENTAL PROTECTION AGENCY,
    Respondent.
    OPINION AND ORDER OF THE BOARD
    (by Mr. Zeitlin):
    The Board initially received the Petition for Variance
    in this matter on February 28,
    1975.
    On March
    6,
    1975,
    the
    Board entered an Interim Order, requiring that Petitioner
    submit further information to support the original petition.
    The further information requested was received on March
    26,
    1975. A Recommendation from the Illinois Environmental
    Protection Agency,
    (Agency), recommending that the variance
    be denied, was received on May 21,
    1975.
    No hearing was
    held in this matter.
    Petitioner here seeks
    a Variance from the sewer ban in Part
    7 of the Board~sOrder in League of Women Voters of Illinois
    v. North Shore Sanitary District, PCB 70-7,
    12-14,
    1 PCB
    369,
    396
    (1971).
    That Order was modified by the Board on
    January
    31, 1972 in the case of North Shore Sanitary District
    v. Environmental Protection Agency,
    PCB 71-343,
    3 PCB 541.
    The
    Board there granted the North Shore Sanitary District
    (District)
    a variance, allowing the addition of a total of 1,000 living
    units,
    or 4,000 population equivalents
    (P.E.)
    to the sewers
    tributary to the Clavey Road and Waukegan Sewage Treatment
    Plants.
    As
    a part of that variance grant, however,
    in
    paragraph
    6,
    the Board stated that:
    C.
    no connections shall be allowed if any part of
    the down—stream sewer system is incapable of adequately
    transporting the additional or new waste to the District’s
    treatment works;
    3 PCB at 558.
    The original Petition received in this matter indicates
    that Mr. Cohn seeks permission
    to build
    a small retirement
    home for his mother on a vacant lot in Waukegan, Illinois.
    17
    —321
    —2—
    Although Mr.
    Cohn does not state when he purchased the lot
    in question, which is located on Theresa Avenue on the north
    side of the City of Waukegan,
    he does state that he purchased
    the lot in a fully improved condition,
    and that all improvements
    including sewer hook-up have been installed on Theresa Avenue
    for 12 years.
    In support of his variance request, Mr. Cohn
    states simply that
    a failure to obtain the variance would
    result in,
    “quite
    a hardship on my motherssic)
    retirement
    plans both financially, and emotionally.”
    In its Recommendation the Agency points out that
    Petitioner’s proposed dwelling would,
    if connected to the
    Waukegan sewers, be tributary to the Judge Avenue sewer.
    The Agency classifies the Judge Avenue sewer as hydraulically
    overloaded;
    the Board has also noted such conditions
    in the Judge
    Avenue sewer.
    Ben Cooper v. EPA, PCB 74-228
    (January 23,
    1975).
    Further, the Agency Recommendationin states
    a belief
    that
    the problem with the Judge Avenue sewer will exist for
    a considerable period of time.
    Although Mr. Cohn quotes the
    Waukegan City Engineer as stating a completion date for
    projects to correct the Judge Avenue sewer problem as being
    “no longer than 18
    to 24 months” away,
    the Agency states
    that its investigation has revealed that construction
    on
    sewer improvements will not commence until Spring,
    1976,
    and
    may take as long as two years thereafter to reach completion.
    The Agency further assumes that during this period of construction
    the sewer backup problems in the area will continue to
    exist.
    Since the imposition of the sewer ban in League of Women Voters,
    this Board has dealt with many individual variance requests
    relating to that Order.
    These cases have ranged from requests
    to install additional bathrooms onto an existing dwelling
    without an increased P.E.
    loading,
    to requests that we
    allow sewerage hook-ups for large projects.
    See,
    ~
    Haight v. EPA, PCB 7193,
    2 PCB—63
    (1971);
    Patricia Development
    Corp.
    v.
    EPA, PCB 71—161,
    2 PCB 469,
    471
    (1971) ;Cooper,
    supra.
    The key factor to remember in the analysis of these
    cases is that the Petitioner bears the burden of proof when
    seeking a variance from a sewer ban, exactly as
    is the case
    with all variances.
    Lake County School Dist.
    No.
    64,
    et.
    ~
    PCB 71—313,314,
    ~
    Order of the Board).
    The Board has in fact granted a considerable
    number of variances with respect to the North Shore Sanitary
    District Sewer ban.
    But in each of these cases, the Petitioner
    has shown that a denial of the variance would work a severe
    hardship.
    Eg., Dupre v.
    EPA, PCB 71-94,
    2 PCB 200,
    201
    (1971) (“construction.. .substantially complete”);
    ~iancio v.
    EPA,
    17
    —322
    —3—
    PCB 71—100,
    2 PCB 211,
    213
    (1971) (Petitioner living in inadequate
    quarters-7 people in 4 rooms; septic field impossible;
    detrimental reliance on preexisting permits); American
    National Bank and Trust Co., Trust No. 28512 v.
    EPA, PCB 71-
    132,
    2 PCB 229, 230
    (1971) (discussion of hardship on which a
    variance can be granted; Mr. Currie dissented); McAdams v.
    EPA, PCB 71-113,
    2 PCB 297(1971)
    (poverty);
    Patricia Development,
    supra
    (poverty,
    detrimental reliance).
    But See, Lawler v.
    EPA,
    PCB 71—209,
    2 PCB 557
    (1971)
    (Variance denied,
    family of
    6 in 2—
    bedroom apartment).
    It should be noted that in each of the above cited cases
    the Board was presented with a substantial allegation of
    hardship, and on that ground granted the variance.
    The
    Board has noted that, ‘Vmerely proving an inconvenience or a slight
    hardship is not enough to be granted
    a variance by this
    Board.”
    Weinstein,
    et.
    al.,
    v. EPA,
    PCB 71—107,
    122,
    192,
    2
    PCB291,
    292,
    (1971).
    The Board in that case also stated
    that
    the
    hardship alleged “must be substantial for it to
    outweigh the damage to be caused”, and that
    “just holding
    the
    Lot
    is not enough to give a person the right to build in
    opposition
    to the sewer ban.”
    2
    PCB at
    292,
    293.
    The Board
    has plainly held that “the hardship of complying with the
    hauls
    insufficient when,
    as here,
    the only significant
    step taken before the ban was the purchase of a
    lot.
    h’(uL~~lcsw~~nc.
    v.
    EPA,
    PCB 71-1l2,
    2 PCB 295
    (1971)
    The
    Board
    realizes
    that
    this sewer
    ban,
    and others,
    does work
    an
    undeniable
    hardship
    on
    those
    wishing
    to
    occupy
    new
    quarters.
    Such
    hardship,
    the
    Board
    has
    held,
    is
    “inherent
    in
    the
    aewer ban.”
    Andracki
    v.
    EPA,
    PCB 71—149,
    2
    PCB
    363
    (1971)
    The i3oardis
    constrained
    to
    deny
    the
    variance
    in
    this
    matter.
    Petitioner
    Cohn
    has
    failed
    to
    meet
    the
    burden
    set
    in
    the
    cases
    c:Lted
    above;
    his
    allegations
    of
    hardship
    are
    insufficient.
    While
    the
    Board
    may
    hypothesize
    on
    the
    possible
    hardship in this case,
    the simple allegation
    of “financial”
    and “emotional” hardship is not enough to allow the relief
    requested.
    In the McAdams case,
    supra, and in the others
    cited above,
    the hardship demonstrated was real and immediate.
    That has not been shown here.
    Nor is the Board moved by the fact that a sewer connection
    has already been installed at the vacant lot in question.
    The Board has previously stated that its cases have “made
    clear that in the absence of other compelling circumstances
    it is insufficient
    that such improvements as sewer and
    water lines and streets have been constructed..
    .
    since the
    improvements will still be there when... the ban is lifted.”
    17
    —
    323
    —4—
    Mars Development Co.
    v.
    EPA, PCE 71-218-219,
    2 PCB 689
    (1971).
    Even the expenditure of money for preliminary
    expenses connected to the building of
    a house will not
    suffice to evoke the doctrine of estoppel, and entitle the
    applicant to the issuance of
    a permit.
    Wagner v.
    EPA,
    PCB 71—85,
    2 PCB 131
    (1971)
    Our decision here is not a permanent denial of
    Mr.
    Cohn’s
    right to build on his vacant property.
    It is simply
    a dismissal
    without prejudice on the facts before. us. But in the absence of
    proof that the sewer ban works an unreasonable hardship on Mr.
    Cohn, we cannot do otherwise.
    We shall dismiss this petition without prejudice, giving
    Petitioner leave to file
    a new petition alleging facts that
    will qualify him for the extraordinary relief sought.
    See,
    e.g. Niles Terrace
    Inc. v~EPA, PCB 71-280,
    2 PCB 499
    (1971).
    We also suggest to Petitioner that verification
    of the Petition
    would facilitate our future action.
    Waukegan Park District v.
    EPA, PCB 71—266,
    267,
    2 PCB 489
    (1971).
    This Opinion constitutes the finding of fact and conclusions
    of law of the Board in this matter.
    ORDER
    IT
    IS THE ORDER OF THE POLLUTION CONTROL BOARD that
    the Petition for Variance in this matter be denied without
    prejudice.
    I,
    Christan L. Noffett, Clerk of the Illinois Pollution Control
    Board hereb~certify that the above Opinion and Order were adopted
    on the
    3
    ‘
    day of
    _______________________,
    1975 by a vote of
    ___to
    (~
    .
    Christan L. Moffe
    lerk
    ILLINOIS POLLUTIO
    NTROL BOARD
    17
    —
    324

    Back to top