PETITION for review of order of Pollution Control Board.
MR. PRESIDING JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:
Petitioner appeals from an order which denied a variance that would permit a sewer connection. One member of the Pollution Control Board dissented. Petitioner's motion to reconsider was denied. The latter appeals pursuant to Section 41 of the Environmental Protection Act (Ill. Rev. Stat. 1973, ch. 111 1/2, par. 1041).
The issues raised here include whether the finding of the Pollution Control Board that enforcing the sewer ban did not impose an arbitrary and unreasonable hardship upon petitioner was contrary to the manifest weight of the evidence, and whether the Environmental Protection Agency and Pollution Control Board are estopped by their own actions from denying a variance to petitioner.
Petitioner holds title, as trustee, for two individuals who purchased the tract of land on March 1, 1972, for purposes of developing multifamily dwellings.
The project was designed to proceed in two phases. Phase I was designed for 144 residential units, a swimming pool, recreational and party facilities, and a laundromat. Phase I also included construction of sewer lines, water and electric facilities for the entire project. Construction of Phase I began in March, 1972, and was completed in the latter part of 1972.
Phase II was designed for 76 residential units (three buildings containing 24 units each, a fourth building containing four units). Construction began on Phase II in early 1973. Construction of Phase II was approximately 65 percent complete by October, 1973, and was finally completed in April, 1974.
At the time of the purchase in 1972, there was no sewer ban in the area and hence no bar to construction. However, the Illinois Environmental Protection Agency (hereinafter the "Agency"), imposed a sewer ban in the southwest portion of Springfield on July 12, 1972. The ban prohibited any further construction or installation of sewers in the area. During that same month, petitioner's application for a permit to construct and connect its Phase I sewers was denied, and on July 20, 1972, petitioner filed a variance petition with the Pollution Control Board (hereinafter the "Board"), to permit it to operate sewers for both Phases I and II. Construction of Phase II had not begun as of that time.
On August 18, 1972, the Agency filed with the Board its "Recommendation" (a pleading responsive to the variance petition), in the variance case, recommending that the variance for Phase I be granted, due to the pre-ban construction of that phase, and denied as to Phase II, due to the fact that no Phase II construction had been commenced as of the time of the ban's commencement on July 12, 1972.
On August 29, 1972, after the Board's hearing on petitioner's variance request but before its ruling, the Manager of the Division of Water Pollution Control in the Agency, wrote a letter to the Springfield Sanitary District advising of the Agency's determination "to issue a limited number of `conditional installation' sewer permits" in the area. These permits, the letter said, "will allow connection of new sewers to the system when the new treatment plant [at that time under construction] is completed and in operation."
On September 1, 1972, an attorney of the Agency, transmitted a copy of the August 29 letter to counsel for petitioner. An accompanying letter suggested that, in the light of the Agency letter, petitioner might wish to apply for a conditional installation permit, and, if that was granted, withdraw the petition for a variance.
The Agency amended its recommendation on September 18, 1972. It then recommended the granting of a variance for the entire project. The amendment recited:
"The Agency has determined, on the basis of the District's program and the results achieved to date, that the overload problem of the Outer Park Interceptor Sewer has been substantially alleviated and is now willing to issue conditional installation permits for construction in the area tributary to opinion in #72-300, which has led the Agency to agree to issue permits allowing construction, with connection to be made upon completion of treatment plant expansion in the spring of 1973. There is no evidence or allegation that connections will be needed before then for the units not yet under construction * * * and no suggestion that such an install-only permit will be insufficient to fulfill the petitioner's needs as to those units. As in #72-300, therefore, the petition is moot with regard to units not under construction when the ban was imposed." (Emphasis supplied.)
The order specified, in part:
"With respect to buildings not under construction as of the date of the sewer connection ban the petition ...