ILLINOIS POLLUTION

CONTROL

BOARD

January 23, 1975

BEN

COOPER

Petitioner,

v.

)

PCB

74~228

EN~

IRONMENTAL

PROTECTI ON

AGENC I

Rnn,

MR.

WAYNE

B,

FLANIGAN

and

MR.

SHELBY

YASTROW,

appeared

on

behalf

of

Petitioner;

MR.

JAMES

SCHLIFKE,

appeared

on

behalf

of

the

Environmental

Protection

Agency

OPINION

OF

THE

BOARD

(by

Mr~ Dumelle):

This

u~inion

is

in

support

of

a

Board

Order

entered

on

Januar~~~3,

1975.

Mr.

Ben

Cooper

filed

a

petition

for

variance

on

June

14~ 1974.

On June 20,

1974

the

Board

entered

an

order

requesting

aeditional information to

be

filed

by

Mr.

Cooper.

Mr.

Cooper

filed

an

amended

variance

petition

on

July

8,

1974.

On

August

22,

1974

the

Environmental

Protection

Agency

(Agency)

filed

~

Recommendation,

to

deny

the

requested variance.

The

Board received a letter from

Mr~ Ernest.

Dieg,

Alderman

of

Waukegan!s Fifth Ward,

which

contained copies of petitions

objecting to the variance request filed by Mr. Cooper.

A

hearing was held on December

6,

1974.

Both

parties

filed

briefs in this matter.

Mr. Cooper seeks

a variance from Order

#7

of

League

of

Women

Voters

v.

North Shore Sanitary District, PCB 70-7,

12,

13, and

14,

as modified h~Order

#7

of

North

Shore

Sanitary District v. Environmental_Protection_Agency,

BCE

71~~3

(here

u

ft~FT~eda

Leaquev.

MS

SD ai~d

NSSD

v.

EPA,

respectively).

Petitioner

se~s

a variance to

allow

construction

of

a

64-unit

apartment

building,

in

order

to

facilitate

a

sale

of

the

lot

in

question~

The

apartment

building

contemplated

by

Mr.

Cooper

wouid

produce

10,000

~n~Lcns

ocr

day

~apd)

or

aomrs~-iu

~‘a~-,

~,

(t~

7’~

The

3’b~

ct

~

-~

~a~Ea

Lfl

the ±5O’~

~u

<

o~

~‘ve~,tr1OrEJand

avenue

and

liachos

Subdivision

of

Waukegan

(R~

65

and

69)

Mr.

Cooper

touqht

the

vacant

piece

of

land

:i~~

1964

from

Mrs.

i~

r

~

~

~65

C~

wi

ca

Mr

7Lachct

rc~:nin.ir~ a

S40

330

puronase

uouey

Ltcrtgoge

(Ps.

66)

Cooocr

c~~es

~

.3

0 10

on

r31~j

mortgacrc.

.1

66

—

293

---

—2—

Mr. Cooper alleges that he should be granted a variance

based upon the court decision in Wachta v. Pollution Control

Board,

8 Ill.

3d 436, 289 NE 2d 485

(1972) (hereinafter cited

as Wachta).

In the alternative, Mr. Cooper alleges that his

individual hardship outweighs that of the public and therefore

the Board should grant the requested variance.

Mr. Cooper~sproperty is served by the Westmoreland

sanitary sewer.

This sanitary sewer is tributary to the

Judge Avenue sewer

(Agency exhibit

1, and page

1 of the

amended variance petition).

Mr. Cooper seeks this variance

because the Board has previously imposed

a sewer ban in the

area in question.

The North Shore Sanitary District

(NSSD)

was given guidelines to follow in issuing permits for sewer

connections within this area

(Order #7 of League v.

NSSD,

supra).

The NSSD is precluded from issuing permits for new

connections if any part of the downstream sewers are incapable

of adequately transporting the additional or new wastes of

the proposed connection

(Order #6(c)

of NSSD v.

EPA).

The

Judge Avenue sewer is classified by the Agency as hydraulically

overloaded and therefore the NSSD is forbidden from issuing

permits which would allow the connection of new developments

such as that proposed by Mr. Cooper.

Therefore,

Mr. Cooper

needs a variance in order to obtain a permit from the NSSD.

The Board finds that the decision in Wachta and the

three subsequent court decisions relying on Wachta

(North

Shore Sanitary District v. PCB, et al,22 Ill. App.

3d 28.

3;6 N.E.

2d 782

(1974);

Thomas

P.

Kaeding v.

PCB, et

al,

22

Ill. App.

3d 31,

316 N.E.

2d 788

(1974);

and Alfred B. Bederman

v.

PCB,

et

al,

22 Ill. App.

3d 36,

316

N.E.

785

(1974))

are

not controlling in this instance.

The court in Wachta

applied the doctrine of equitable estoppel so as to prevent

the denial of connection permits from the NSSD for facilities

that had received Sanitary Water Board permits prior to the

imposition of this sewer ban in League v.

NSSD,

supra.

Although the City obtained a Sanitary Water Board permit

prior to the imposition of the sewer ban, the Board finds

that Wachta is distinguishable because of the danger to the

public health resulting from sewer overflows,

the backup of

sewage into basements and the passage of time since the

issuance of the permit to the City.

In the Wachta decision,

as well as the three subsequent decisions, petitioners were

seeking to connect to sewers which had adequate capacity,

but were tributary to sewage treatment plants that provided

inadequate treatment.

Such is not the case with the Judge

Avenue sewer.

The record contains many references to the

backup of sanitary waste into homes in proximity to Mr.

Cooper’s proposed apartment complex

(R,

25,

28,

39,

40,

41,

50,

53,

90 and 91).

15 —294

---

—3—

Such backup of sanitary waste into basements cause

a

sigILI.ficant

hepatitis

health

hazard,

~4r.

Herbert

Red~nan,

Area Supervisor of the Lak,e

County

Health Department,

presented

evidence of two

cases

of

cQmmunicable

diseases

which occurred during 1974

tn

the

area

in

which

Mr.

Cooper’s

property

is

located

(R.

55),

These

diseases

were

shigela

and hepatitis

(R.

56).

He stated that the investigation of

these

two

cases

of

communicable

diseases

brought

out

references

to

sewer

backups

and

sewer-type

odor

CR.

57).

He testified

that the Lake County Board of Health was opposed to any more

construction

in areas that had sewer

problems

until

such

time as

the

problems

were

corrected

to the revamping of the

sewer system

CR.

59).

Because

of these two reported communicable

diseases

and

the

potential

for

others such as salmonellosis,

intestinal infections caused bye.

coli,

typhoid fever,

poliomyelitis, and other internal viral infections, the

Board finds that there exists a significant public health

hazard presented by

basement

backups in the area served by

the sewers to which Mr. Cooper’s proposed discharge would’ be

tributary.

Because of this public health hazard,

the Board is not

estopped from denying the requested relief,

Therefore,

the

Board

must

weigh

the

hardship

suffered by Mr. Cooper versus

the additional hardship to be

suffered

by the public if the

requested relief were granted.

Mr. Cooper’s hardship is economic in nature.

He currently

owes $30,000 to the Vlachos estate for the remainder of the

purchase mortgage

(R.

66)

.

Mr. Meyer, an attorney representing

the Vlachos estate, testified that the note must be paid in

full by February 11, 1975 or the estate will instigate

foreclosure proceedings

(R.

20).

Mr. Cooper testified that

he could not pay the $30,000 owing on the note by February

11, 1975

(R. 67).

He further testified that if he gets the

permit

--

the result of the requested relief

---

he felt the

property would be marketable and he could either sell it or

borrow additional funds upon it

(R.

67).

Mr. Cooper has

paid approximately $600 to $700 a year in property taxes and

interest on approximately the

entire

purchase price since

1964

(R.

72).

Mr Cooper paid an architect between $4,000

and $4,500 to draw up plans for a proposed apartment development

to be located on the site

(R.

74).

Mr. Cooper testified

that he does not know if he would sell the lot or continue

to develop it

(R.

68).

Mr. Cooper testified that he has not

previously undertaken development on this lot because of

financial

feasibility

and

because

he

was

engaged

in

other

activities

CR.

86).

15 —295

---

The Board must balance a substantial economic hardship

suffered by Mr. Cooper with the hardship to be imposed upon

the

public.

As previously stated, the Board finds that a

significant public health problem exists in the area.

In

addition to the health problems,

such backups limit the

ability of the citizens to utilize their basements,

One

citizen testified to ~thedestruction of personal property

which was placed in the basement while he was moving into

his house

(H.

25).

He testified that he had undergone an

insurmountable loss because of the backup of sanitary waste

(H.

25)

Mr. Cooper does not deny the existence of basement

backups,

but

instead

states

that

any

additional

flow

from

his

development

would

have

a

min,irna:L

impact

upon

such

bacicups.

CR.

75 and

77~78),

The

sewers

in

question

have

adequate

capacity during dry weather, but because of infiltration

or’

other connections they have inadecuate capacity during

periods of rainfhil,

Mr. Rick Springer,

an Agency engineer,

testified that any additional loading would produce the same

amount of additional backups during those times when the

sewers were at capacity

CR.

91).

The Board finds that any additional waste added to a

sewer system, when that sewer system is carrying waste at

maximum capacity, well result in additional backups of

a

like amount,

The Board finds that petitiorer has failed to

establish an arbitrary or unreasonable. hardship which outweighs

the hardship suffered by the public in the event such relief

were granted. Mr. Cooper presented no evidence of alternatives

such as holding tanks to be used during wet weather periods.

In addition to the distinguishIng public health factor

present in this case,

the Board finds that Mr. Cooper is

barred

by

laches from asserting his equitable claim.

Laches,

in

a

general

sense,

is

the neglect for an unreasonable and

unexplained

length of time to do that which could and should

have

been

done earlier,

if at all.

~Laehes is such

a neglect

or

omission

to

assert a right

,..,

and other circumstances

causing

prejudice to an adverse

part.y, as will operate as a

ban

in the court of equity.

Unlike limitations, laches

iS

not a

mere

matter of time,

but

principally a question of the

inequity of permitting the claim

‘to be enforced ~an

inequity

founded upon some change in the condition or relation of the

property

and

the parties.

Laches

depends

on

whether,

under

all

the circumstances of the particular case, plaintiff is

charged

with want of due diligence in failing to institute

15

296

---

5—

proceedings before he did.

Where there

is such a change in

the relations of the parties or such a change in the subject

matter of the suit as to render it inequitable to grant

relief,

it will be refused without reference to the statutory

period of

limitation”.

(Holland v.

Richards,

4 Ill.

2d 570,

123 N.E.

2d 731

(1955)).

In July of 1958,

the Sanitary Water Board issued the

City of Waukegan a permit to extend the sewer to which Mr.

Cooper now desires to connect

(R.

69 and 81 and Petitioner

Exhibit

1).

Mr. Vlachos, the former owner of the lot in

question, proceeded to install the Vlachos Subdivision

sewer.

Mr. Cooper’s predecessor had a valid right to act in

reliance upon that permit and to connect to that sewer.

However, Mrs. Viachos sold the property to Mr. Cooper who

did not assert that right from 1964 to the present

(R.

65).

“Laches

...

adverse party.

~n permitting

the party against whom the claim is asserted”

65 Ill. App.

2d 89,

211 N.E.

2d 897

(1966)).

enforcement of his right where he remains passive while an

enters into obligations or

makes expenditures

for improvements or taxes”

(Pyle

v.

Ferrell,

12 Ill.

2d 547,

147 N.E.

2d 341

(1958)).

No one is asserting that the permit which was issued to

the City of ~aukegan, was not originally valid when there

existed adequate sewer transport capacity.

The lot was

purchased in what was a rapidly developing area and sixteen

and one-half years have lapsed since that permit was issued.

The doctrine of laches is founded on the maxim that equity

aids

the vigilant and not those who slumber on their rights

(Pyle v. Ferrell,

12 Ill.

2d 547,

147,

N.E.

2d 341

(1958)).

The delay in asserting a right must work a disadvantage

to the adverse party, as where a claimant fails to assert

his right until the condition or situation of the adverse

party becomes so changed that it would be inequitable to

enforce the right.

In the present case,

other persons have

proceeded to connect to that sewer and other physical forces

have acted until there is at present a serious transport

problem.

The adverse party is the public who suffers from

sewer overflows and basement backups which have resulted

from this sewer transport problem.