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Willowbrook Dev. Corp. v. Pollution Cont. Bd.





PETITION for review of order of Pollution Control Board.


This case involves an appeal pursuant to section 41 of the Environmental Protection Act (Ill. Rev. Stat. 1979, ch. 111 1/2, par. 1041) from an order of the Illinois Pollution Control Board (Board) entered on July 3, 1980. Section 41 of the Act provides, in pertinent part, that "any person who has been denied a variance * * * may obtain judicial review * * * directly in the Appellate Court for the District in which the cause of action arose and not in the Circuit Court" (Ill. Rev. Stat. 1979, ch. 111 1/2, par. 1041). The appellant, and petitioner below, Willowbrook Development Corporation (Willowbrook), had requested a variance from the Board to connect and operate a sewer extension to serve 152 units of the developer's planned Lake Willow Way development in Willowbrook, Illinois. The Board, however, in its order, granted the requested variance for only 52 of the units at Lake Willow Way. Willowbrook is seeking a reversal of that portion of the order which failed to grant a variance for the remaining 100 units planned for Lake Willow Way.

The facts involved are set out in detail since they are dispositive of this case. Willowbrook is the developer of Lake Willow Way, which is projected to comprise 38 multifamily structures and a total of 152 coach-house units. The project is located in Du Page County, Illinois, and occupies a 17.5-acre parcel containing a 4.5-acre man-made lake. In March 1976, Willowbrook's engineers requested a preliminary opinion and evaluation of the proposed sewer system from the Illinois Environmental Protection Agency (EPA). The EPA responded by letter dated March 23, 1976, indicating that, according to their records, the Du Page County Marionbrook Sewage Treatment Plant (Marionbrook) had adequate capacity to accept the additional flow from the planned project (then planned as an apartment complex) and, therefore, had no objection to the proposed sewer system. The EPA did point out, however, that the Board's Rules and Regulations require that a permit be obtained prior to the installation of the sewer system.

Approximately three years later, in March 1979, Willowbrook submitted to the EPA an application for a permit to construct and operate a sanitary sewer extension for Lake Willow Way. The EPA responded by letter dated April 13, 1979, that they must deny the permit since they lack the "statutory authority to permit sewer extensions when the receiving sewers or treatment plants are already overloaded," referring to the Marionbrook treatment plant. The EPA further pointed out, however, that where the following two conditions are satisfied, they are able to issue special permits for construction only and not operation: (1) The owner of the overloaded facility has received a permit from the EPA to install additional or upgraded facilities which will have sufficient capacity to handle the load anticipated from the sewer extension under consideration, and (2) all contracts necessary for the completion of the construction of the additional facilities have been signed and ratified by the responsible authorities. Those two conditions were satisfied in approximately July 1979.

On September 17, 1979, Willowbrook submitted an application to the EPA for the above-described "Construct Only Permit" and the permit was issued by the EPA on September 26, 1979. Construction began at Lake Willow Way in the first week of December 1979. The terms of both the application and the permit itself provided that the permit was for construction only and did not authorize actual operation of the facilities. The terms of each provided that operation of the facilities constructed would be contingent upon the issuance of an "Operating Permit" by the EPA. EPA Technical Policy WPC — 5 provides that "[t]he issuance of a Construct Only Permit to the applicant is a method for allowing the construction of a sanitary sewer which, due to projected sewerage facilities' improvements, can become operational at a time consistent with completion of sewerage facilities improvements."

On April 30, 1979, some five months prior to issuing the Construct Only Permit to Willowbrook, the EPA notified the Du Page County Department of Public Works (DCDPW) that it was placing their Marionbrook plant on "Restricted Status" because it was operating at 102 percent of its EPA rated capacity. Restricted Status is defined in EPA Technical Policy WPC — 4 as "the Agency determination * * * that a sewer has reached hydraulic capacity or that a sewage treatment plant has reached design capacity, such that additional sewer connection permits may no longer be issued without causing a violation of the Act or Regulations." EPA Technical Policy WPC — 4 further provides that notification of Restricted Status shall be sent to the owner of the treatment facility (in this case DCDPW) and that a list of the plants subject to Restricted Status shall be published and made available upon request as well as published in the Pollution Control Board's publication, Environmental Register, which was done by the EPA.

Subsequent to receiving the Construct Only Permit, Willowbrook had little or no contact with the EPA and was not informed that the Marionbrook plant was on Restricted Status. Willowbrook agents communicated frequently with DCDPW employees regarding the status of the improvements at the Marionbrook facility and were informed repeatedly that improvements were underway to increase plant capacity from 4 MGD (million gallons per day) to 5 MGD, which would enable them to accommodate flows from Lake Willow Way and that upon completion of the plant modifications, operating permits could be obtained from the EPA. The village of Willowbrook issued building permits in December 1979, and construction began shortly thereafter. Despite the frequent communications between Willowbrook and DCDPW, DCDPW never informed Willowbrook that the Marionbrook plant was on Restricted Status. Willowbrook first learned of the Restricted Status classification in April 1980, in conversation with an EPA employee. On April 4, 1980, Willowbrook filed a petition for variance with the Board pursuant to section 37 of the Environmental Protection Act (Ill. Rev. Stat. 1979, ch. 111 1/2, par. 1037) seeking permission to connect a sewer extension to serve the 152 units projected for Lake Willow Way. The EPA filed a written recommendation that the petition for variance be denied. The variance hearing was held on June 20 and June 21, 1980. At the conclusion of testimony, the Board entered an opinion and order granting a variance for only 52 of the 152 units planned for Lake Willow Way.

At the Board hearing, Mr. Donald Schuster, president of Willowbrook Development Corporation, testified that the Corporation had already expended approximately $1,100,000 in land and site improvements, $2,000,000 in building construction and $150,000 in general and administrative expenses; that Willowbrook had undertaken extensive land clearing and excavation, installed sewer and water mains for the entire development, had done some paving and had eight buildings (32 units) at various stages of completion. Schuster testified that the denial of a variance for Lake Willow Way would result in the bankruptcy of himself personally and the Willowbrook Development Corporation.

A representative of Brookfield Federal Savings and Loan Association testified that they had outstanding loans to Willowbrook in the amount of $3,111,000 which represented more than 55 percent of the net worth of Brookfield Federal and that default by Willowbrook would have serious effects on their financial stability. The mayor of the village of Willowbrook indicated that there would be serious problems with police and fire protection if the project were abandoned, as well as a negative impact on tax revenues for the village. The marketing agent for Lake Willow Way indicated that there were 26 signed sales contracts for units at Lake Willow Way which were in jeopardy. Finally, the Director of DCDPW testified that in his opinion the Marionbrook plant had the capacity to accept the projected flow from the Lake Willow Way project.

The EPA presented various witnesses who testified regarding the condition of the Marionbrook plant and its capacity to handle the additional flow anticipated from Lake Willow Way. The EPA witnesses testified that a Construct Only Permit was issued to Willowbrook because although the Marionbrook plant was overloaded, a project was underway to increase the capacity of the plant from 4 MGD to 5 MGD; that when an expansion program is underway at a plant the EPA will issue Construct Only Permits up to the capacity expected to be available when repairs are completed; that shortly after issuing Willowbrook a Construct Only Permit in September 1979, the EPA became aware of a "deteriorating condition" at Marionbrook involving mechanical and personnel problems resulting in hydraulic overloading and inadequate treatment of flows; that the EPA would not have issued a Construct Only Permit to Willowbrook on September 26, 1979, had it known of these mechanical difficulties sooner; that the Marionbrook plant is unable to treat adequately the flows it currently receives and that further environmental damage would result if Willowbrook is granted a variance.

Three issues are presented in this appeal:

(1) Whether the Board should be estopped from denying the variance for the balance of Willowbrook's planned units;

(2) Whether the decision of the Board granting variances for only 52 units of the 152 units requested constitutes a denial of due process or is against the manifest weight of the evidence;

(3) Whether the Board has complied with section 35 of the Environmental Protection Act which requires the Board to file and publish a written opinion stating the facts and reasons leading to ...

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