ILLINOIS POLLUTION CONTROL
BOARD
August
29, 1972
MARK E.
COOK
v.
)
#72—178
ENVIRONMENTAL PROTECTION AGENCY
)
COMMUNITY UNIT SCHOOL DISTRICT NO.
60
LAKE COUNTY,
ILLINOIS
v.
)
#72-223
ENVIRONMENTAL PROTECTION AGENCY
#72-178 JOHN R. SLOAN APPEARED FOR PETITIONER
RICHARD W.
COSBY, ASSISTANT ATTORNEY GENERAL, APPEARED FOR THE ENVIRONMENTAL
PROTECTION AGENCY.
#72-223 FREDERICK D. RAWLES AND DANIEL M. LONCHER,
JR. APPEARED FOR PETITIONER.
RICHARD W.
COSBY, ASSISTANT ATTORNEY GENERAL, APPEARED FOR THE ENVIRONMENTAL
PROTECTION AGENCY.
OPINION AND ORDER OF THE BOARD
(BY SAMUEL T.
LAWTON,
JR.)
This opinion
is
in support of our order of August
28,
1972 in #72-223
granting the variance sought and our order of August 29,
1972 in #72-178
denying the petition for variance.
Both cases are variance requests seeking permission in each instance
to connect a single family residence structure to facilities tributary to
the Waukegan Sewage Treatment Plant of the North Shore Sanitary District.
In both cases
the sewer to which the house would be connected has been
classified as over—loaded by the E.P.A.,
and the sewer connection permit
accordingly denied, notwithstanding our recent partial lifting of
the
sewer connection ban, with respect to the Waukegan plant originally imposed
in our decision of March
31,
1971
in case
LWV
vs.
NSSID 70-7.
Both homes were constructed subsequent
to the imposition of the
March
31,
1971 sewer connection ban.
In both cases petitioners have con-
tended that denial of the variance will impose upon
them
unreasonable and
arbitrary hardship, justifying an allowance of the connection sought.
While
there are some similarities in the two proceedings there are
also substantial differences justifying the reaching of different conclu-
sions
in each case.
The variance petition with respect to Mark E. Cook
is denied.
The variance petition with respect to Community Unit School
District No.
60, Lake County is granted.
The reasons for what might appear
to be inconsistent conclusions are discussed below.
Mark E. Cook filed his original petition for variance on April
24,
1972,
simply asking permission to connect the house built by him to facili-
ties tributary to the Waukegan plant.
On May 3,
1972, we entered an order
referring to our partial lifting of the sewer connection ban of March
2
1972 statinci that,
for all that appeared in the petition, Cook would be
5
—
287
entitled to a sewer connection permit as a result of the March
2,
1972
order.
The petition was dismissed as moot.
On
June
2,
1972 Cook sent
to the Board a letter from H.
W.
Byers, General Manager of the North
Shore Sanitary District dated May 11,
1972, advising him that the sewer
to which connection was sought had been designated inadequate by the
E.P.A., and that a connection permit would be denied.
The variance peti-
tion was redocketed and hearing held July 13,
1972.
No recommendation has been filed to date by the E.P.A., although
Agency counsel appeared at the hearing in opposition to the petition.
Cook’s position can best be summarized in the language of his
attorney:
“He relied basically upon information received from City
of Waukegan officials and newspaper accounts relating to the
the removal of the sewer ban in Waukegan, and built a house
that was completed after the sewer ban was partially lifted
in Waukegan, requested a hook-up from the North Shore Sani-
tary District and was denied based on the fact that the E.P.A.,
had declared this sewer area as being incapable of transport-
ing waste.”
CR5).
The subject property located at 513 Baldwin in Waukegan was im-
proved for use by petitioner’s daughter.
Construction appears
to have
started around January
1,
1972.
(RlO)
.
Petitioner acknowledged that at
the time of construction he knew the sewer ban was
in effect but relied
on statements made by the Mayor of Waukegan, the City Building Com-
missioner, petitioner’s plumbing contractor and newspaper accounts all
to the effect that the sewer ban would be terminated.
(Rll).
Apparently
other properties not the subject of this proceeding are also proposed
for development by the petitioner in reliance to the foregoing representa-
tions.
At no time did petitioner make inquiry of either the North Shore
Sanitry District or the E.P.A.,
with respect to the status of the
sewer ban or the condition of the sewer to which the connection was
sought.
Some inquiry was made of the North Shore Sanitary District
after March 11,
1972,
when the partial lifting of the sewer ban took
place, but only after the house had been erected.
Petitioner represents that the fair cash market value of the house
as completed will be $30,000,
and that approximately $13,550.00 remains
owing by petitioner to the seller of the lot and to sub-contractors.
Contracts for other properties
to be improved by petitioner were
introduced
in evidence although it
is not clear whether these lots
would be subject to the same prohibition as the subject property.
In any
event petitioner contends that the capital tied up in the Baldwin propert~j
and the jeopardy placed on his credit standing prevents him from pursuing
his trade.
Mrs. Cook has been subject to hospitalization and surgery in
recent months, which has imposed additional financial burden on petitioner
On crr,ss examination Cook acknowledged that the property was pur-
chased in October of 1971,
and that at that time he was aware of the im-
position of the comprehensive sewer ban pursuant to our order of March
31,
—
5
—
2
88
1971.
(R27)
.
At the time petitioner received his building permit from
the Waukegan Building Department he was advised that a sewer hook-up
could not be granted, although Building Department officials stated on
that date that the sewer ban would be lifted.
According to Cook the City
Officials stated with respect to
the
sewer ban,
“What are you waiting for?
Go ahead,
it’s all going to be rolled up.
We1re going to throw the whole
thing over.
Go ahead, Cook.”
(R3l).
Installation of a septic tank on the property was considered un-
acceptable
by the Lake County Health Department and installation of
a
holding tank, while physically possible was deemed unduly expensive both
in cost of installation and servicing.
Alsq difficulties would be en-
countered in the ultimate disposal of wastes.
Evidence was introduced
that the subject property would generate 200 gallons of effluent per day and
possibly less,
(R60)
which in the judgment of the witness would have a
trivial effect on the over-all hydraulic flow handled by the sewer.
In
dry weather no over-flow problem would exist, but some adverse effect might
result in periods of wet weather flow.
(R62).
However,
in the judgment
of the same witness the sewer is not adequate to serve as a combined sani-
tary and storm sewer if excessive amounts of storm water infiltrated into
it.
(R63)
Complaints were noted from residents connecting to the subject sewer
during periods of heavy rainfall, presumably resulting in back—up of sewer
connections into their homes.
CR65).
Testimony was received in the record
indicating the basis on which sewers subjected to overload were determined.
Those which could not accommodate normal flow during wet weather without
by-pass or back-up were “black listed” by the E.P.A.
On the particular sewer in question manholes
were bolted down in an
effort to eliminate over-flow which nevertheless became cracked and enabled
sewer discharge of fecal and other matter.
CR80).
Observations of this
sort were made in the vicinity of the sewer between April 18 and July
10,
1972.
The particular sewer in question is designed as a sanitary sewer only
and is not built to accommodate storm
water
flow, although storm water in-
filtrates
into the sewer during periods of wet weather.
No effort was made
to determine what impact the waste from petitioner’s residence would have
on the environment, beyond that previously mentioned.
The Community Unit School District No.
60
is also located in Waukegan.
As a part of its Vocational Building Trades program students participating
in the program have constructed single family residences on property pur-
chased by The Board of Education.
Construction takes place over
a one to
two year period.
The home
is worked on by students enrolled in the building
trades classes, the vocational electric class,
the interior design class,
and the agriculture and biological occupation classes.
Approximately 100
students engage in the construction of the home.
Upon its completion, the
home is placed on the market and sold.
Proceed~of the sale are used to
finance the purchase of land and materials .~orturther construction of future
homes as part of the Building Trades program.
The subject property of the present petition was purchased on July
8,
1971 for $5,475.00, and was the eighth such project of the program.
Con-
struction was started in September of 1971 and is substantially completed.
At
the time of the purchase a sewer connection had already been
stubbed
by
the
prior owner into the Waukegan Municipal Sanitary System, but was not hooked up
—
5
—
289
and no permit for connection or use had been issued.
While the
lot in question would otherwise be eligible for a sewer conneàtio~~r:t.
pursuant to our partial lifting of the sewer connection ban on
March
2,
1972,
the property would connect to a sewer found to be
overloaded which again precludes the granting of a permit.
Petitioner alleges that if the sewer connection is denied
the house cannot be sold.
Funds for continuation of the program
from other sources are not available and the entire Vocation
Building Trades program would be terminated.
In addition the
District will incur a substantial monetary loss resulting from
the investment
in materials.
The petition concludes that denial of
the permit will have
a substantial detrimental effect on the public
welfare, disproportionate with the detriment caused by the addi-
tional sewage
flow generated from the house.
The E.P.A. recommends that the variance be allowed subject
to proof that the sale of the structure
is necessary to the con-
tinuation of the Building Trades program and that
the
petitioner
obtain
one
of
the
connection
permits
previously
authorized
for
the
Waukegan
plant.
A
stipulation
of
facts
was
entered
into
with
respect
to
the
essential allegations of the petition.
Hearing was held on the
petition on July 22,
1972,
at which time the Vocation Building
Trades program and the method of financing were described in de-
tail.
The testimony supported the contention of the District that
the sale of the house was necessary to assure continuation of the
program and that no funds were available in the education fund to
pursue this program in the absense of such sale.
The educational
fund is presently operating at a deficit.
Approximately $24,000
has been expended for land and materials and the fair market value
of the house is considered to be approximately $30,000.
Land has
been purchased for new residences
to be constructed pursuant to
the program and students have been registered for the coming fall
classes in this respect.
In addition to the inability to proceed
with the program the testimony indicates that failure to hold the
class will entail some loss of State revenue.
CR15).
Testimony indicated that 400 gallons per day of effluent
would be generated by the house.
The sewer could accommodate 624,000
gallons per day.
In
the
judgment of the witness the effluent flow
from the house would be “nil”
so far as its effect on the sewer system.
While the sewer has been classified as overloaded there is no evi-
dence that the proposed connection would create over—flow, back—up
or by-pass.
CR22).
The District’s business manager testified that a deficit in
the education fund in excess of a million dollars
is
anticipated.
(R29’
Inability to sell the subject property would cause termination of
the Building Trades program,
as funds would not be available from
any other source, other than the money received on sale of the oremi~cs.
—4--
5
—
290
The
two
cases
present
obvious
difficulties
of
reconciliation.
In
Cook
the
petitioner
got
bad
advice
and
followed
it.
In
Community
Unit School District, for all that appears on the record,
no advice
was sought or received.
In both cases the land was purchased and
construction begun subsequent to the imposition of the sewer ban.
In both cases the properties are located in areas that would be
eligible for permits as a consequence of our partial lifting of
the sewer ban with respect to the Waukegan plant.
However,
in
each case the effluent from the particular house would be directed
to a sewer that has been classified by the E.P.A.
as overloaded and
a permit denied for this reason.
The condition of overload is the
fault of the City of Waukegan which has failed to keep its sewers
in satisfactory condition,
and whose officials told Cook to ignore
our sewer ban order.
In
both
cases
hardship
exists
so
far
as
the petitioner is
concerned.
However, the central issue in both cases,
as in all
variance cases,
is whether hardship is of
a degree sufficient to
justify
a variance.
Stated otherwise,
the issue
is whether the
hardship on the petitioner if denied the variance substantially
outweighs the burden on the public if the variance is allowed.
(See WACHTA
& MOTA
v. EPA #71-77).
Within this frame of reference we believe the cases are
distinguishable.
Our denial of variance to Cook does not deny
him his investment.
At most, his enjoyment of the property or
its income has been suspended.
Cook bought land and built in the
face of the sewer connection ban, gambling on the availability
of a sewer connection permit, which because of the overloaded
condition of the sewer has been denied, notwithstanding partial
lifting of the ban for the Waukegan plant.
Cook sought advice
from all those except the ones from whom he should have sought
it, the E.P.A.
His hardship is clearly self-imposed.
Further,
the
records
support
the
conclusion
as
to
the
sewer
there
involved
that
even
a
small
increase
in
effluent
will
worsen
an
already
bad
situation,
where
back-up,
by—pass,
and
over-flow
have
already
resulted in demonstrated damage to the public welfare.
An allowance
of this petition would be a virtual repudiation of the ban allowing
anyone to build in defiance of it and then claim hardship on the
basis of self-imposed burdens, giving local officials the power to
repeal the sewer connection ban order in effect.
The instant case
is a particularly good example- where petitioner stands ready to
proceed with two more construction programs as soon
as
he
gets
a
go-ahead.
The School District is not without fault and should be
rebuked for its actions in the face of the sewer ban.
However,
the hardship imposed in that case goes beyond the single project
involved and has consequences not only detrimental to the school
District itself but also to the students, faculty and public at
large.
(see Congregation
lun Echod v. EPA #72-202).
Prevention
of ability to di’pose of the structure would require termination
of the Vocation Building Trades Program,
a program of obvious
value not only to the many students now involved but to all those
in the future, who would be participants.
The over-all benefit
5—291
to the community
in such a program is obvious
as
is the detriment
consequental to its abandoment.
In Congregation Am Echod
(supra)
we granted
a sewer connection to a home occuped by a rabbi,
in
order that the entire congregation might be served.
We there held
that a denial would constitute a hardship not only on the rabbi
himself but on the entire congregation which would be deprived of
the religious leadership of its pastor.
Similarily, termination
of the Vocational Trades Program would inflict an unwarranted hard-
ship on the entire community in addition to all affected students,
present and future,
if this worthwhile program was curtailed.
Furthermore the evidence does not demonstrate the same
detrimental consequences from the connection that would maintain
in the case of Cook.
Lastly, the loss of educational fund revenue
resulting from a suspension of the program to a district already
operating in a deficit position is
a further factor
to consider
We find the cases sufficiently distinguishable, notwith-
standing certain factual similarities,
to justify a difference
in ruling.
Every variance case and particularly those involving
a waiver of a sewer connection ban order requires
a balancing of
equiti~s.
We
have
endeavored
to
reconcile
these
balances
in
every
case
on
its
individual
merits.
As
we
said in WACHTA
&
MOTA
v.
E.P.A.
(supra):
“Notwithstanding the profound implications
of this decision and the pervasiveness of the problem,
it
is still necessaryto decide the matter before us on
the facts set forth in the record.
Whether a variation
is premised on constitutional considerations of denial
of property without due process of law or uncompensated
taking
Ca doctrine frequently employed in challenging the
validity of restrictive zoning ordinances, See Bauske
v.
City of Des Plaines,
13
Ill.
2d 169,
148, N.E.
2d 584
(1958))
on the principle of estoppel, resorted to where vested rights in
permits
are
asserted
(See
Deer
Park
supra),
or
on
the
statutory
basis
of
unreasonable
hardship,
the
more
traditional
basis
for the granting of a variance, the legal result is
in direct
consequence of the magnitude of the hardship imposed,
as
compared with the burdens on the public welfare.
No
hard
line can be drawn and each element must be evaluated on the
facts of the particular case.”
In
denying
a
petition
for
variance
for
sewer
connection
in
Feige
v.
E.P.A.
#72-192
we
said:
“On this state of the record, we must deny the
petition for variance.
We do not believe that the char-
acter and degree of the hardship alleged by petitioner out-
weighs the hardship likely to result to the community from
the additional hydraulic and organic load entering an al-
ready overloaded sewer.
The specific hardships alleged
are insufficient for the granting of
a variance, and we
have so held in cases involving similar facts.
Petitioner’s
use and enjoyment of the property is at most suspended,
—6—
5
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292
and not terminated and his plight
is characteristic
of virtually every property owner in an area affected
by
a sewer ban.
As we said in Monyek v. Environmental
Protection Agency #71—80, dated July
1
1971:
‘Undeniably, petitioner is confronted with
some measure of inconvenience in this case.
We
cannot, however, view petitioner’s plight a singu-
lar and therefore arbitrary nor can we commiserate
to such a degree that we grant rather than deny
this
request.
In
cases
where
a
house
has
been
completely
built
before
the
date
of
the
order
(March
31,
1971)
or where substantial steps toward
completion have been taken we can clearly judge
the hardship of non—connection to be unreasonable.
In fact we have done so in the recently decided
case of Wachta and Mota,
d/b/a Belle Plaine Sub--
division v.
E.P.A.,
#71-77.
There the petitioner
had seven units completely built, and the Board
granted a variance to permit the sewer connections.
For the remaining lots
in the subdivision the Board
ordered the builders to present
a program to the
Board demonstrating the feasibility of alternatives.’”
Cook’s situation is distinguishable from that of Nilles,
Inc.,
a
respondent
in Glovka v.
NSSD #71-269.
There we did not order Nilles
to disconnect the sewer tie-in made shortly after the date of the ban.
Nilles had relied on the representations
of the NSSD’s attorney made
a few weeks after the imposition of the ban to the effect that the
ban was not applicable
to Nilles because of Nilles’
possession of
a pre-existing state sewer installation permit.
Cook,
on the other
hand,
was told expressly by city officials that
the ban was in effect
and applicable to him but urged to proceed in defiance of it, which
advice he followed.
In allowing a variance for sewer connection in Congregation
Am Echod
(supra) we said:
“The Agency recommendation
is
that the variance be
granted.
Even though there is no direct financial hard-
ship
being suffered, we feel
that the rabbi, his wife,
and
all those who benefit from his services will suffer in a
special way if the rabbi becomes unable to attend.
As
we
stated in McAdams
v. Environmental Protection Agency,
PCB 71—113:
The additional pollution that variances
in extreme cases
like this will cause will prob-
ably be small, for such cases are likely to be
rather rare;
and it must be borne because the
hardship of denial is too great.’”
—7—
5
—
293
We believe the rationale of the Feige case applicable to Cook,
whereas the rationale of Congregation Am Echod
is applicable to the
Community School District No.
60, whose circumstances are unique and
not likely to be repeated.
Our grant of variance to the School District should not be
construed as an invitation to the District or others similarly
situated to repeat the events giving rise to our order.
What
might be considered
a hardship on the basis of past events will
not give rise
to
a similar holding in the future.
Those buying
land or erecting structures in the NSSD are cautioned to ascertain
not only the applicability to the sewer ban order but also the
suitability of any local sewer to which connection
is sought.
We reiterate the manifest need for the City of Waukegan to
take affirmative steps
to ameliorate the overloaded condition of
its sewers which will continue to cause grief and agony to all
concerned until the condition is abated.
Repair of defective
sanitary sewers to prevent infiltration of storm water in periods
of wet weather will eliminate the overloaded conditions requiring
the E.P.A. ‘s determination of inadequacy.
This opinion constitutes the finding of facts and conclusions
of law of the Board.
Mr. Dumelle dissents believing that the variance should be
granted in both cases.
I, Christan Moffett, Clerk of the Pollution Control Board, certify
that the above Opinion was adopted on the
7”Jday
of
byavoteof
~/
to
/
—8—
5— 294