ILLINOIS POLLUTION CONTROL BOARD
September
2, 1976
VILLAGE OF DUPO
and ELMER AND
MARIAN SCHLEMMEI~1,
)
Petitioners,
v.
)
PCB 76—63
ENVIRONMENTAL PROTECTION AGENCY,
)
Respondent.
MR. WILLIAM HOTTO, appeared on behalf of the Village of Dupo;
MR. RICHARD BORDELON, appeared on behalf of the Environmental
Protection Agency;
OPINION AND ORDER OF THE BOARD
(by Mr. Dumelle):
This matter comes before the Board on a Petition for Variance
filed by the Village of Dupo,
St. Clair County,
Illinois on
March
4,
1976 requesting relief from the restricted status placed
upon the Village of Dupo’s
(Village)
sewage treatment plant on
August 11, 1975.
The variance is requested to allow sewer service
to be provided to
21 lots in the Schiemmer Subdivision.
The
Agency filed its Recommendation on April
21, 1976 and requests
that variance be granted only for houses presently constructed
or under construction.
On May 19,
1976 the Agency received and forwarded
to the
Board a letter from the developers who own the lots which are
the subject of the Village’s Petition for Variance.
In that
letter Elmer and Marian Schiemmer noted their desire for a
public hearing and their previous letters requesting an opportunity
to present their position.
On June 18,
1976 the Board issued
an Interim Order in this cause requiring a public hearing in
this matter.
The Board further ordered the Schlemmers joined
as parties to the proceeding.
A hearing was held on July 22,
1976.
23—363
—2—
There is no question that the Village’s sewage treatment
plant is overloaded and that bypassing occurs.
The plant’s
effluent is discharged into the Mississippi River via a 14-inch
force main.
The plant currently operates at between 105
and
125
of design capacity
(R.
26).
In its Recommendation, the
Agency states that the lift station to which the Schlexnmer
subdivision is tributary is in good condition and does not
bypass.
There is no indication that any sewer backups or
other specific environmental problems would be caused.
It
appears that the only adverse effect which would be caused
by the requested variance
is the bypassing of additional un-
treated sewage into the Mississippi River during peak flow
periods.
Based upon the design criteria of 100 gpd per person,
the addition of 21 houses would contribute between 6,300
and 8,400 gpd
CR.
26,
48)
to the overloaded plant.
Further,
there is no question that the plant’s effluent does not meet
the appropriate standards
(see paragraph 7 of Agency Recommenda-
tion).
The Village is not currently submitting discharge
reports
(R.
27).
This case is complicated by the fact that there are two
separate petitioners, each of whom present different questions
on the issue of whether denial of this petition would create
an arbitrary or unreasonable hardship.
One of the petitioners
is the Village which has expended funds to extend utility
service to the Schlemrner Subdivision.
The other petitioner
is the developer of that subdivision.
The Village’s hardship would be the inability to recoup
its expenses incurred in extended utilities to the subdivision.
These costs were to be paid via tap-on fees to the homeowners
of the subdivision.
The Village would thus not be able to
receive over $10,000 in revenue from these fees until such
time as sewer connections are allowed
CR.
32,
49).
This
is
especially true because the lots are too small for septic
systems and thus could not b~developed and sold without
sewer connections
CR.
64).
The Village, population 3,028,
might also lose this investment indefinitely if the Schlemmers
are forced to close the development
(R.
66).
Tax revenues
would also be gained by the Village if the development was
successful.
The Schlemmers, husband and wife,
own the bulk of the
subject land as joint tenants
CR. 71).
The present value of
the property is in excess of $100,000.
There are currently
two
completed and occupied homes in the subdivision.
The
23
—
364
—3—
remaining 19 lots are not under construction.
The Schlemrners
have spent $30,600 to develop the subdivision besides the money
spent by the Village.
The Schlemmers must also pay interest of
at least $2,700 per year on money borrowed for this purpose
CR.
61).
Without income from the sale of these lots,
the Schleramers
will not be able to pay this interest.
The Schiemmers estimate
that the lots will sell for $5,000 each
(R.
65,74)
and there
is
a present demand for those lots.
Both parties have thus shown that they will suffer some
hardship if this variance is not granted.
The Village’s finances
are in trouble, especially in the sewer and water department
(R.
52).
The Village would also have great difficulty in
selling additional bonds at a reasonable rate
(R.
54,
55).
The Village does have on hand $130,000 for improvement of its
sewage treatment system
(R.
54) pursuant to the federal grant
program
(R.
55).
The Schlemmers have expended funds which
may be lost if the development is not allowed to progress.
The
issue to be resolved is whether these hardships would be
such as
to be arbitrary or unreasonable.
Thus, we must next
look at the reasonableness of the conduct of the parties.
On July 27,
1973 the Village was issued an Agency permit
for the construction and operation of a sanitary sewer to
serve the Schiemmer subdivision.
The permit allowed two years
for the completion of the project.
At the end of two years,
due to difficulties in securing easements, the sewer was between
80
—
90
completed
CR.
37,
62).
On July 22,
1975, five days
prior
to the expiration of the permit, the Agency received a
new permit application for the same sewer.
The permit was
denied on August
4, 1975 and shortly thereafter the Village was
placed on restricted status.
Mr. Schlemmer states that he
believes the sewer was completed within 10 days of the expiration
of the permit
(R.
68, 70).
If that is true, the sewer was
actually completed prior to the imposition of the restricted
status.
The Village states that it had no reason to expect the permit
denial
(R.
12)
and didn’t realize that they could have requested
an extension of the previous permit
(R.
35).
It appears from the
record that the Village and the Schlemmers did act fairly
reasonably under the peculiar facts they were faced with.
Petitioner’s Exhibit No.
1 is a copy of a Grant offered
by the Agency for the construction of a Regional Sewage Treatment
Plant at the site of the Village’s present plant.
The operation
date for the new system is scheduled for March
1,
1978
CR.
25).
23
—
365
—4—
At that time the restricted status would probably be lifted.
In
the meantime the Village has attempted to decrease flow to the
plant by correcting seepage and storm water drain problems
CR.
57).
The Agency correctly points to the necessity of
intensified efforts along those lines.
There is no doubt that denial of a variance for the two
completed and occupied homes under these circumstances would
cause an arbitrary or unreasonable hardship.
The difficult
question concerns the 19 empty lots.
The Board must weigh
the extent of hardship caused by delaying further construction
until the restricted status
is lifted. The May
14,
1976 letter
from
the Schlernmers to the Agency asks that “use of the sewer
for at least six more lots” be allowed.
At a sales price of
$5,000 each,
this number of lots when sold should about equal
the $30,600 development cost.
The Board finds that a variance
for the two presently occupied homes and
6 additional lots is
necessary to avoid placing an arbitrary or unreasonable burden
upon the parties.
This Opinion constittues the Board’s findings of fact
and conclusions of law.
ORDER
Petitioners Village of Dupo and Elmer and Marian Schiemmer
are hereby granted variance from the Agency restricted status to
allow only two existing homes and
6 additional homes, all within
the above—mentioned Schiemmer subdivision, to be connected onto
the Village’s sewer system.
IT IS SO ORDERED.
I,
Christan L.
Moffett, Clerk of the Illinois Pollution Control
Boar~,hereby certify the above Opinion and Order were adopted on the
~
day of September,
1976 by
a vote of
..5-. ~
Christan L. Moffett, Cl r~~/
Illinois Pollution Control Board
23
—
366