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Wachta v. Pollution Control Board

NOVEMBER 15, 1972.

FRED WACHTA ET AL., D/B/A BELLE PLAINE SUBDIVISION, PETITIONERS-APPELLANTS,

v.

THE POLLUTION CONTROL BOARD ET AL., RESPONDENTS-APPELLEES.



APPEAL from the Pollution Control Board.

MR. JUSTICE NASH DELIVERED THE OPINION OF THE COURT:

Petitioners, Fred Wachta and J. Richard Mota d/b/a Belle Plaine Sub-division, seek review of a decision of Respondent, Illinois Pollution Control Board, denying them a "hardship" variance from an order of the Board which had revoked sewer connection permits for nineteen lots owned by Petitioners to the facilities of the North Shore Sanitary District.

Direct appeal was taken from the decision of the Board to this court as is afforded by Section 41 of the Environmental Control Act (Ill. Rev. Stat. 1971, Ch. 111 1/2, Par. 1001, et seq.), and pursuant to the provisions of the Administrative Review Act.

Several weeks after oral arguments were heard by this court, our clerk was informed by Petitioners that all of the relief sought by this appeal had been granted in that the North Shore Sanitary District had issued to them the desired nineteen sewer connection permits, presumably and necessarily with the consent of the Board and the Environmental Protection Agency, Respondents herein. Petitioners urge, however, that issues presented in this case be passed upon by the court because others are similarly situated as were Petitioners.

• 1 A well-recognized exception to the rule that a case which has become moot will be dismissed on appeal lies where an issue is presented which is of substantial public interest. (Partney v. Dallas, 111 Ill. App.2d 261.) We believe such an issue is presented here.

Petitioners have contended that under the circumstances of this case the doctrine of equitable estoppel may be applied against Respondents, Pollution Control Board and Environmental Protection Agency. Respondents deny that they are subject to that equitable principle.

A review of the circumstances of the case is necessary for a determination of this issue.

In February, 1970, Petitioners entered into a contract to purchase an unimproved tract of land in the Village of Gurnee for a price of $50,000. They paid $10,000 down at that time with the balance to become due in January, 1972, subject to forfeiture of the land and any improvements if not then paid in full. It was Petitioners' intention to subdivide this land into some twenty-seven lots for the purpose of sale of vacant lots and for sale of houses constructed on the lots by them.

Before making any improvements to the land, Petitioners and the Village of Gurnee applied to the State Sanitary Water Board (predecessor to Respondents) for permission to install and operate sewer lines servicing all of the subdivision lots and connecting to existing sewers in the village tributary to the North Shore Sanitary District. The requested permit was granted by the Water Board on April 10, 1970, and on April 15th the Sanitary District then approved connections to its facility. With their application, Petitioners submitted plans for their sewer installation prepared by their engineers which were approved by the Water Board and the Sanitary District.

After receiving the foregoing permit, Petitioners proceeded to subdivide their land into the Belle Plaine Subdivision. They installed the sewer system therein in accordance with the approved plans and further developed the land by construction of streets, curbs and model homes. They expended further sums for engineering and advertising and incurred substantial continuing obligations for real estate taxes and interest on loans. By March 31, 1971, Petitioners had built seven houses, had sold five of them, and had an eighth house partially constructed. They had sold vacant lots. By this time there had accrued an unrecoverable investment in the project approaching $70,000; it was anticipated that upon completion and sale of the entire project Petitioners would realize a profit therefrom of $150,000.

On March 31, 1971, the Pollution Control Board (which theretofore with the Environmental Protection Agency had assumed the responsibilities of the Sanitary Water Board) entered a general order in a proceeding brought against the North Shore Sanitary District which prohibited all further sewer connections to the Sanitary District. As required of them as a result of the order, the Village of Gurnee and the Sanitary District declined to allow any further connections of Petitioners' lots to their sewer system.

On April 14th, Petitioners sought a variance from the order of the Board on the grounds of undue hardship to them pursuant to Section 35 of the Environmental Control Act. (Ill. Rev. Stat. 1971, Ch. 111 1/2, Par. 1035.) A hearing was held by an officer appointed for that purpose by the Board in which the activities of Petitioners and the financial consequences to them described herein were received in evidence. No evidence was offered by the Respondents.

The Board thereafter entered orders on July 12, 1971, and August 5, 1971, determining that although no alternate sewer service method was feasible for the subdivision, Petitioners would be allowed only to retain the sewer connections to the systems of the seven houses already connected and that the eighth partially-completed house could be connected. Relief was denied as to the remaining nineteen lots in the subdivision. So the matter stood through the appellate process and until after oral arguments in this court when, for reasons not disclosed to us, the nineteen required sewer connection permits were issued to Petitioners.

• 2, 3 The doctrine of equitable estoppel has long been recognized and applied against subordinate public bodies. This court considered the issue in Stahelin v. Board of Education, 87 ...


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