ILLINOIS POLLUTION CONTROL BOARD

November 

1, 1973

MRS.

ADELE ROACH

PETITIONER

v.

)

PCB 73—324

ENVIRONMENTAL 

PROTECTION

AGENCY

)

RESPONDENT

CONCURRING OPINION (by Mr. Marder)

Final action was entered in this matter on November 1, 1973.

The vote was 3—2, suggesting a high degree of concern by the Board

in relation to this matter. A quick review of the facts (see 

Ma-

jority Opinion 73-324) would show that this case involved a sewer

ban variance request, which on the surface would seem a rather

routine matter for the Board to handle.

This 

action, however, again 

raises the question as to wheth-

er a variance runs with the land or is an individual right. The

Agency, as it has in past recommendations, raises the point that a

variance is indeed an individual right and can not be transferred

or sold along with property rights. Citations from Title IX,

Sections 35-38, of the ~nvironmental Protection Act are raised

to support this claim.

It is felt that a sewer ban variance petition is unique in a

number of very important ways.

I. Sewer Ban Variance Petitions Are Unique: A study of past

Board orders regarding variances will show that the one-year time

limitation required in Title IX, Section 36 (b) of the Environmen-

tal Protection Act has been strictly adhered to. The exceptions

have been, out of necessity and common sense, sewer ban variances.

One could not reasonably expect each and every sewer ban variance

to be renewable every year 

—

nor could the Board or Agency reason-

ably be expected to “plug” existing sewer lines after a variance

is terminated. A sewer ban variance is granted for the life of

the

land.

The very interesting question is raised 

—

if a sewer ban vari-

ance is issued to Mr. Smith; and a sewer hookup is completed; and

the next day he sells his home (with sewer connection) to Mr. Brown,

is the variance terminated? Clearly not; the variance has simply

been sold with the land. It then seems that the question is not

9— 723

whether the

variance

runs with the land

but rather at what noint

hoes it start running? It is one of the points

of this 

opinion

that U-ic race should start at the beginning.

It is further

felt 

that precedent in this regard has been

set in 

many past cases before the Board.

i~. A)

Exchange National Bank

Katz~-Weiss Construction

Corporation v. Environmental Protection Agency PCB 73—15.

In this action the Board granted variance to connect a condo-

ainium to the North Shore

Sanitary District’ s sewer systems. The

~ris ico ~as

cianten 

to tic

pet

t~oner

~nach would allow sate

:ndividuai

condominums to persons

Here tne variance clearly ran

with the

land.

U- Aid-City Developers v. Environmental

Protection

U-ncv—PCD 

72—274,

Vartence to add up to

910

population equivaent was granted

to Per~iteoner. Again, Mid—City Developers

did

not intend to

occu-

all of 

the living units but rather to sell

the livinci units and

the variance granted.

North 

Shore Sanitary District v, Environmental Pro-

tectiari 

Agency

—

PCB

—

Variance

was granted from 

the Board ban imposed under League

of

Women Voters v. North

Shore 

S anitary District,

PCB

70—7,

12,

13.

14, Variance was granted to add 5 000 living enits to the sewers

~ibutary

the

Clavey Road and Wauhegan olants,

Although the

permits granted to the District were not sold, they were ouviously

doled out to various parcels of land wtthin the District.

The var-

iances

were not granted to 

an individual person but were rather

granted to

the North Shore Sanitary District.

Definitions of Person and Individual.

The Agency in its recommendation quotes the words “Person

and “Individual”

as a basis for its conclusion that a variance does

not run with the land.

It is this opinion’s contention that

the

words are not properly defined to warrant such a conclusion.

A) Individual: 

The word “individual” is defined ac-

cording to Webster’s Seventh New Collegiate Dictionary as:

1. Inseparable

2. Of, relating to, or used by an individual;

(c) intended for one person

3. Existing as a distinct entity

According to Webster’s Third New International definitions are eU-I—

ereci by historical citations. 

makes no claim as to the validity

S

—

724

—3—

of definitions by order, Therefore definition 3 is as valid as

definition 2 (c)

B)

Person: The Environmental Protection Act clearly defines

the word “Person.” (See Title I, Section 3 (1).) One definition

is “political subdivision.” Under this definition, it 

is

believed

the

North Shore Sanitary District was granted variance

(PCB 71-343),

The

“Person” granted variance 

did not use the variance, but rather

distributed portions thereof to the “land.”

Another major point must be entered.

A variance is granted

in the event that compliance 

with an existing rule would impose

an unreasonable or arbitrary hardship. If the definition of a

variance as not running with the land were upheld, unreasonable

hardship could indeed be imposed, especially on an individual land-

owner. It is abundantly clear that a person who has a large pro-

portion of his savings tied up in a piece of property would be

hard—pressed to sell this piece of property without

a variance. The

prospective purchaser would 

reluctant to “gamble” on a home site

he

were not insured a sewer ban variance.

This puts a needy

per-

son in the position of

having to 

negotiate the best deal possible

for

his land

thus very possibly compounding his hardship.

A var-

iance is granted

to relieve hardship 

—

not

to compound it.

We

can

very easily he trapped into the cycle of

“No 

sale because

no

van--

ance~ no variance because of no sale.”

Because of the above it

is felt 

that the question of

whether

a variance runs with the land is, at this time, at- best ambiguous

For tAte 

reason an “ave’

vote 

was cast~

Sidney

C C

‘ /

Mar-her

Board

Member

I. Chr.istan L. Mod fett certify thai: U-ic above Concurring

M’-

~rc~

~