ILLINOIS POLLUTION CONTROL BOARD
March 31, 2004
BARBARA and RONALD STUART,
Complainants,
v.
FRANKLIN FISHER and PHYLLIS FISHER,
Respondents.
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PCB 02-164
(Citizens Enforcement – Noise)
HEARING REPORT
On March 9, 2004, a hearing in this matter was held at the Bolingbrook Village Hall, 375
West Briar Cliff Road, Bolingbrook, Illinois. Complainants Barbara and Ronald Stuart appeared
and represented themselves
pro se
. Attorney David Harding appeared and participated on behalf
of the respondents.
Preliminary Matters
This report addresses only motions received prior to March 9, 2004, as well as events at
the hearing itself.
As reflected in the hearing officer order of August 21, 2003, complainants were directed
to provide the report of their expert, Greg Zak, to the respondents on or before September 10,
2003. On September 11, 2003, the complainants filed Zak’s report. Among other observations
that Zak made after visiting the site on August 2, 2003, the report includes a chart of ambient
noise levels Zak took at the site. Nowhere in the report are the propane sound measurements
taken at the site by the complainants.
On or about March 1, 2004, the hearing officer as well as the respondents received a
document entitled Testimony Outline by Greg Zak, along with the complainants’ log of cannon
sound measurements. As reflected in Zak’s report received March 1, 2004, Zak was to testify,
among other things, that the sound measurements taken by the complainants on July 28, 2002,
July 31, 2002, August 4, 2002, August 15, 2002, and August 25, 2002, constitute nuisance noise.
The respondents objected to Zak’s second report on the grounds that they would be
prejudiced should the second report be allowed where they had no time to prepare for the areas
that Zak’s second report delves into.
The hearing officer sustained respondents’ objection to the extent that any testimony
given by Zak referencing the complainants’ log of cannon sound measurements would be
allowed only as an offer of proof.
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On January 30, 2004, complainants filed a motion to incorporate portions of the
transcript in the PCB 00-219 hearing and certain documents in 79-CH-48, a Knox County circuit
court case. On February 6, 2004, respondents filed its objections to complainants’ motion to
incorporate.
On March 9, 2004, the hearing officer found that the documents from the Knox County
case were not from another Board docket as required by Section 101.306 of the Board’s
procedural rules and denied the requested incorporation. The hearing officer also ruled that the
portions of the transcript in PCB 00-219 that complainants sought to have incorporated were not
relevant to this case and denied the requested incorporation. The motion and the attached
documents, however, were taken with the case as an offer of proof.
It is noted that respondents motion to incorporate portions of the transcripts in PCB 99-
82, and PCB 99-38 was granted in a January 13, 2004 hearing officer order.
On March 9, 2004, respondents offered a videotape of the Judge Mathias television show
in which the parties in the above-captioned matter appeared (hearing officer exhibit 1). The
complainants objected on the grounds of relevance.
The hearing officer has now reviewed the videotape and the transcript and finds that it is
sufficiently relevant to this case to be admitted into evidence.
Witness Credibility
Based upon my legal judgment, experience, and observations at the hearing, I find that
the credibility of the witnesses is not an issue in this matter.
Exhibits
The parties offered exhibits as evidence at the hearing. An exhibit list itemizing the
offered exhibits and summarizing their status is attached to this order.
Briefing Schedule
A briefing schedule was discussed and agreed to at the hearing. The complainants post-
hearing brief is due to be filed on or before May 3, 2004. Respondents post-hearing brief is due
to be filed on or before June 15, 2004. Complainant’s reply, if any, is due to be filed on or
before July 15, 2004. Public comment is due to be filed on or before April 23, 2004. The Will
County State’s Attorney’s
amicus curiae
brief
,
if any, is due to be filed on or before
May 3, 2004.
At the request of the parties, the hearing officer designated April 16, 2004 as the due date
to appeal any of the rulings made at the hearing, including the ruling regarding the Judge Mathis
video tape.
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IT IS SO ORDERED.
______________________________
Bradley P. Halloran
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center, Suite 11-500
100 W. Randolph Street
Chicago, Illinois 60601
312.814.8917
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PCB 02-164
March 9, 2004, Hearing
Exhibit List
Exhibit Description Status
Complainants’ Group Exhibit 1 Letters, medical diagnosis relating to
Michael Stuart’s hearing status
Denied.
Taken with
the case as
an offer of
proof
Complainants’ Exhibit 2 Maps, photographs, diagrams and propane
cannon pamphlet attached to large
cardboard
Admitted
Complainants’ Exhibit 3 Letter to Helen Gehring from the IEPA,
dated September 27, 1979
Admitted
Complainants’ Exhibit 4 Log of cannon sound measurements Denied.
Taken with
the case as
an offer of
proof
Complainants’ Group Exhibit 5 A collection of articles regarding noise,
hearing loss, wildlife, letters,
maps/diagrams and a uniform residential
appraisal report.
Denied.
Taken with
the case as
an offer of
proof
Respondents’ Exhibit1 Complainants’ answers to request to admit
with attached exhibits
Admitted
Respondents’ Exhibit 2 Complainants’ responses to respondents
second set to request to admit with
attached exhibits
Admitted
with
exception to
the attached
exhibit c,
which was
taken as an
offer of proof
Respondents’ Exhibit 3 Complainants’ responses to interrogatories
and requests for production
Admitted
Respondents’ Exhibit 4 Letter dated August 15, 2001 to Frank
Fisher from Barbara Stuart
Admitted
Respondents’ Exhibit 5 Letter dated November 14, 2001 to
Franklin Fisher from Barbara and Ronald
Stuart
Admitted
Respondents’ Exhibit 6 Arbitration agreement for the Judge Mathis
show
Admitted
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Respondents’ Exhibit 7 Appearance agreement for the Judge
Mathis show
Admitted
Respondents’ Exhibit 8 Undated letter to Frank Fisher from a
fellow farmer
Admitted
Respondents’ Exhibit 9 Complainants’ objection to set discovery
schedule and hearing date
Admitted
Respondents’ Exhibit 10 Letter dated July 21, 2002 from Barbara
Stuart
Admitted
Respondents Exhibit 11 Letter dated March 27, 2003, from Barbara
Stuart to Bradley Halloran and David
Harding
Admitted
Respondents’ Exhibit 12 Letter dated April 25, 2003, from Barbara
Stuart to David Harding
Admitted
Respondents’ Exhibit 13 Letter dated April 25, 2001, from Barbara
Stuart to Bradley Halloran
Admitted
Respondents’ Exhibit 14 Letter dated May 12, 2003, from Barbara
Stuart to Bradley Halloran and David
Harding
Admitted
Respondents’ Exhibit 15
Letter dated August 28, 2003, from
Barbara Stuart to David Harding
Admitted
Respondents’ Exhibit 16 Letter dated September 3, 2003, from
Barbara Stuart to David Harding
Admitted
Respondents’ Exhibit 17 Letter dated September 20, 2003, from
Barbara Stuart to David Harding
Admitted
Respondents’ Exhibit 18 Letter dated October 10, 2003, from
Barbara Stuart to David Harding
Admitted
Respondents’ Exhibit 19 Letter dated November 18, 2003, from
Ronald and Barbara Stuart to Bradley
Halloran
Admitted
Respondents’ Exhibit 20 Undated newspaper article regarding crows Admitted
Respondents’ Exhibit 21 Letter/agreement from the Judge Mathis
show
Admitted
Respondents’ Exhibit 22 Photograph of watermelons Admitted
Respondents’ Exhibit 23 Photograph of watermelons Admitted
Respondents’ Exhibit 24 Undated letter to editor from Barbara
Stuart
Admitted
Respondents’ Exhibit 25 April 24, 2003, letter to editor from
Barbara Stuart
Admitted
Respondents’ Exhibit 26 Undated letter to editor from Barbara
Stuart
Admitted
Respondents’ Exhibit 27 Undated letter to editor from Barbara
Stuart
Admitted
Hearing Officer Exhibit 1 Video tape of Judge Mathis show Admitted
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Hearing Officer Exhibit 2 Complainants motion to incorporate with
attached documents
Taken with
the case as
an offer of
proof
Public Comment 3 Affidavit of Wayne Genis Taken as
public
comment
Public Comment 4 Affidavit of David Pilotto Taken as
public
comment
Public Comment 5 Affidavit of David Stuart Taken as
public
comment
Public Comment 6 Affidavit/petition of Barbara and Ronald
Stuart
Taken as
public
comment