TLLINUIS POLLUTION CONTROL
BOARD
March 13,
1975
KENNETh BUELO, EDWARD K.
HARDY,
JR.,
)
EDWARD
K.
HARDY,
III., and ROSS D.
)
SIRAGUSA
)
Complainants,
)
)
v.
)
PCB 74—303
BARRINGTON
SPORTSMEN
UNLIMITED,
INC.,
)
et
al,
)
Respondents.
)
)
)
ENVIRONMENTAL
PROTECTION
AGENCY
)
)
Complainant,
)
)
v.
)
PCB
74—360
)
BARRINGTON SPORTSMEN UNLIMITED,
INC.,
)
and WALTER ULICK and VIRGINIA ULICK,
)
)
Respondents.
)
Steven N.
Rasher, Attorney,
appeared for Complainants Buelo,
Hardy Jr.,
I-Tardy,
III,
and Siragusa.
Frederic
J.
Entin, Assistant Attorney General, appeared for the Environmental
Protection Agency.
James
N.
Boback, Attorney, appeared for Respondents.
OPINION
& ORDER of the Board
(by Mr.
Zeitlin)
The Complaint
in PCB 74—303 was filed by the above named complainants,
all residents of the Village of Barrington, NcHenry County on August
16,
1974.
Those
complainants
alleged
that
Respondent
Barrington
Sportsmen
Unlimited,
Inc.,
(Barrington
Sportsmen),
had
operated a private club in the Village of
Barrington
in
violation
of
Rule
102
of
the
Pollution
Control
BoardTs
Noise
Pollution Control Rules and Regulations.
That violation,
alleged to have con-
tinued from the August
10,
1973 effective date of the Noise Pollution Control
Regulation until the filing of the complaint,
arose from the use of
rifles, pistols,
and shotguns
by
various individuals on the grounds of Barring-
ton Sportsmen.
The Complaint
in PCB 74—360, filed on October 3,
1974, was filed
by
the
Environmental Protection Agency (Agency) and alleged an essentially similar
violation of the Noise Pollution Control Regulations
as was stated by the
named complainants in PCB 74—303.
Pursuant to a motion filed by the Agency
with the Complaint
in PCB 74—360,
these two cases were consolidated to allow
a single consideration and resolution of the matter by the Pollution Control
Board
(Board).
16— ~I1i
—2—
At a hearing held in the matter
on January 17,
1975,
the
Agency
moved
that
Respondents Walter and Virginia
Click,
the
property
owners
of
the
site
operated
by
Barrington
Sportsmen,
be
dismissed-P
In its
oral motion,
the Agency stated its
feeling that
no
finding in
this matter should be made as to
the Ulicks,
and that it
did not feel
that the Ulicks should be pa~rtyto
a final Order by the
Board~
The motion of the Agency was uncontested,
At the January 17,
1975 hearing,
the parties also entered a short
stipulation~ That stipulation covered various Issues of fact, and
describes testimony which the parties would have offered had
a
full
hearing been held in this matter,
Resolution
of. whether Barrington
Sportsmen’s activities,
as complained of in these two cases, con~
stituted a violation of Rule 102 of
the Noise Pollution Control
Regulations wad
left to the Board,
Respondent
Barrington
Sp-ortsmen
is
a
not~-for—profit
corporation
under
Illinois
law
which
operated
premises
in
B.arrington
as
a
trap~
shooting
range,
sheet
range
and
for
individual
h.unti-ng
purposes.
The members and guests
of
Barrington
Sportsmen
used
those
premises
for
such
shooting
actIvity
seven
das
a
week
with
particularly
heavy
use
on
holidays
.and
weekends,
Such
shooting
was
carri-ed
on
under
the
auspices
of,
and
subject
to
contro.I
and
regula.tion
by,
Barrington
Sport smen,
The
property
operated
for
shooting
by
Barrington
Sportsmen
was
adjacent
to
single
family
residences
occupied
by,
among.
others,
the
individual
Complainants
in
PCB
74~-303~ The
Stipulation
in
this
matter
included
various
testimony
whicb
would
have
been
offered
by
the
oc~
cupants of those dwe11ings~
Such testimony would have included
the fact that noise of gunshots from Barrington Sportsmen’s
property was intermittent to continuous every cay of the week, and more
frequent on weekends and holidays.
The offered testimony would have
been to the effect
that such noise was distracting, disturbing,
and
bothersome to the ~surroundingresidents when using their porches,
patios,
terraces, and yards~ Further,
such testimony would have been
to the effect that noise from Barrington Sportsmen’s premises inter~-
ferred with conversations
in those outdoor locations on the surrounding
property,
and interferred with the use and enjoyment
of the surrounding
residents’ outdoor recreational facilities,
including,
in one
case,
a swinmiing pool,
Such testimony would have also included statements
to the effect
that gunshot noise from Barrington Sportsmen’s operation
were disturbing to the guests of the named Complainants~
Respondent operated the Barrington property for fourteen years, and
terminated its
lease on that property on October
1, 1974~ After October
1,
1974,
Respondent
moved
its
operation
to Crystal
Lake,
Ill,
Barrington
Sportsmen’s lease for the Crystal Lake property had been entered
into on
August
2,
1974,
prior
to the filing of
the complaint
in PCB 74—303.
Since October
1,
1974, there have been only occasional
shots
heard on
or
near the property formerly operated by Barrington Sportsmen.
Such shots,
however, have not been the result of any activity by Barrington Sportsmen.
16—112
—3—
Respondent’s activities which are the subject of
the Complaints in this
matter have been the subject of a law suit filed by a Ross D.
Siragusa,
who is also one of the named Complainants in PCB
74—303.
That suit,
case
number 69—418,
in the McHenry County Circuit Court, alleged that Respondent’s
activities constituted
a common law nuisance.
That case was decided for
Respondent on March
19,
1974, with a finding that Respondent’s activities
did not constitute a common law nuisance.
An appeal in the matter was
subsequently dismissed.
Barrington Sportsmen stated in the stipulation
that it does not feel
that its
activities constituted a violation of Rule 102 of
the Noise Pollu-
tion Control Regulations.
Respondent denies that the allegations contained
in
the two Complaints in this matter,
even
if proved, would constitute a
violation of
the standards established by
the Board.
DISCUSSION
The Respondent in this matter has not chosen to refute
or contradict
the statements contained in the stipulation as to testimony which would
have been offered by Complainants at
a hearing.
Respondent instead states
that the substituted language of the stipulation does not contain the
specificity necessary to conclude
a violation of Rule 102.
Further, Res-
pondent states that
it believes
it has received judicial permission
to oper—
ate its
premises in the manner complained of,
as evidenced by the court’s
finding in the suit brought by Complainant Siragusa.
The resolution of
this case by the Board involves an essentially sim-
ple determination.
There
is no allegation
that any of the numerical
standards contained in Chapter
8, the Noise Regulations,
as to specific
activities or specific types of property have been violated.
Instead,
the
Board must simply determine, based
on the above described effects
of Res-
pondent’s activities, whether such activities have unreasonably interfered
with Complainants enjoyment of life,
or with any lawful business
or activity.
Rule 102 states that:
No person shall cause or allow the emission of sound beyond the
boundaries of his property so as to cause noise pollution
in
Illinois,
or so as to violate any provisions
of this chapter or
the Illinois Environmental Protection Act.
Rule 101(j) defines noise pollution as:
“The emission of sound
that unrea-
sonably interferes with the enjoyment of life or with any lawful business
or activity.”
That these standards,
established by the Board, are applicable
here
is plain upon a reading of Section 24 of the Environmental Protection
Act:
No person shall emit beyond the boundaries of his property any
noise that unreasonably interferes with the enjoyment of life or
with any lawful business or activity,
so as to violate any regu-
lation or standard adopted by theBoard under this
Act.
16—113
—4—
Section
25 of the Act limits
the Board’s authority in adopting such
regulations only insofar as it must set maximum allowable limits on
noise emissions which unreasonably interfere with the enjoyment of life.
Nor
is the Board here bound
in deciding this matter to follow the
judicial opinion described above.
Although the Board recognizes its
responsibility to treat properly any judicial interpretation of its
regulations,
a finding that common law nuisance is not present in this
case
is not determinative of the regulatory violation alleged.
There is
no requirement that
the Board find that Respondent’s conduct amounted
to
a common law nuisance in order for it to find that Rule 102 may have
been violated.
Therefore,
the court’s finding
in the above described
law suit
is inapplicable to our determination here.
Rule 102, when read with the definition of noise pollution in Rule
101(j),
is not worded in traditional nuisance
terms.
The test, which
here is whether Respondent’s activities unreasonably interfered with the
enjoyment
of life or with any lawful activity,
is instead a much stricter
one.
The Board
is not bound by traditional
concepts
of
tort, but
is
instead bound by the finding of the General Assembly in Section 23 of
the Environmental Protection Act,
to the effect that excessive noise
creates serious consequences which are to be avoided or prevented.
Illinois Coal Operators
v. Pollution Control Board,
Ill.,
319 N.E.
2nd 782,785
(1974).
See also, City
of Nonmouth v.
Pollution Control Board,
57
Ill.
2d 482,313 N.E.
2d 161,163
(1974);
Respondents here are not alleged to have violated any of
the specific
numerical standards set up under other rules
to control noise pollution.
But
the Board,
in adopting the Noise Pollution Control Regulations,
realized that not every source of noise pollution wou~ldbe subject
to
such numerical control. Rule 102,
the general prohibitory rule, was
designed
to remedy just such situations as
that present here.
In the
matter
of Noise Pollution Control Regulations.
R 72—2,
8 PCB 703,722
(1973).
The parties in arriving at the Stipulation in this matter did
provide sufficient facts for the Board
to reach a decision on the merits
of the Case,
as is required.
E.P.A.
v.
Ralston Purina, PCB 71—88,
3 PCB
143
(1971);
6 PCB
3
(1972) By stipulating to testimony which would have
been offered at a hearing, the parties have given us ample grounds to
arrive at a finding
of
fact.
By failing to provide contrary offers
of
proof, and instead relying on other theories
of defense,
Respondent has
required the Board to take such “testimony” as unrefuted.
See,
e.g.,
E.P.A.
v.
Federal Paperboard
PCB 72—372,
9 PCB 189
(1973). Insofar
as
Respondent here has not chosen to contradict the allegations in the
stipulation,
the Board must reach its decision based only on such allegations.
While Respondent states that
it feels the complaints herein are the
result
of some special sensitivity on
the part of the named complainants,
such a statement
is conclusory when offered with no other matters in
support
thereof.
See,
E.P.A.
v. Soil Enrichment Materials Corp.
PCB
71—272,
3 PCB
239
(1971).
The Board is limited
to stipulated facts, but
not conclusions.
16
—
114
—5—
The Board must first determine whether such “testimony” is sufficient
to constitute a prima facie case for the Complainants.
Once this determin-
ation is made,
if
a prima facie case is found,
it is the burden of the
Respondent
to come foreward with evidence or
a sufficient defense.
E.P.A.
v. Freeman Coal Mining Co.,
PCB
72—315,
9 PCB 185,188
(1973).
Respondent’s burden, absent an affirmative defense,
is the preponderance
of
the evidence.
E.P.A.
v. Container Stapler, PCB 70—18,
1 PCB 267,270
(1971).
In finding whether there has been a prima facie case made here,
the
Board must determine whether the unrefuted offer of testimony made by
the
t~omplainantsis sufficient to prove two things.
First,
that testimony must
show that there has been interference with the Complainants,
in
the manner
discussed
above.
Second,
the Board must determine that such interference
was unreasonable.
E.P.A.
v. Rail—to—Water Transfer
Co.,
PCB
72—466, September
5,
1974, Opinion at
3.
The Board finds that both are present here.
Using
the guidelines presented by Section 33(c)
of the Act,
as is
required under the Illinois Coal Operators Opinion,
the Board is unable to
find from the evidence before it that Respondent’s activities were excusable
under the circumstances. 319 N.E.
2d at
787.
The interference and injury
here are uncontroverted.
While the value of Respondent’s recreational
activities may be substantial, they are not of such character
to outweigh
the violated rights of individuals.
Questions of
the suitibility of Res-
pondent’s activities to the Barrington area,
and the feasability of
eliminating the interference here are mooted by Respondent’s abandonment
of the site.
Even
if the site was particularly suitable for shooting
activities,
the value of such activiities
is outweighed by
the rights of
the Complainants.
Respondent’s movement to a new location would have
constituted a practical method of eliminating
its sound emissions at a
time before this action was finally brought.
If Respondent’s reliance on the lawsuit described above is to be
seen as the offer of an affirmative defense,
such reliance was ill
founded.
Nor can Respondent’s allegation of prior user,
if intended as
a theory of affirmative defense,
suffice here.
While Section 33(c)(3)
of
the Act directs the Board to consider priority of use in reaching decisions
on enforcement cases,
such priority cannot constitute a permanent license.
Respondent states in the Stipulation only that the named Complainants in
PCB 74—303 have “occupied their homes for a period
of less
than 14 years”,
while it has been operating for 14 full years.
Such an allegation of simple
priority is insufficient, where nothing else is provided or alleged,
to
overcome Respondent’s
burden.
E.P.A.
v.
Incincerator,
Inc,
PCB
71—69,
2
PCB 505,
511
(1971).
It cannot be argued that the uncontradicted allegations of
the Complain-
ants herein are unreasonable under the circumstances.
The activities which
Complainants state Respondent’s activities interfered with constitute the
normal and regular use of outdoor facilities associated with many residences.
The use of
patios,
terraces, porches and backyards
is common
to most home-
owners.
If Respondent’s activities unduly interfered with normal, social use
of
such residence—associated outdoor facilities,
it constitutes
a violation
of Rule 102.
See,
E.P.A.
v. Edward Hospital District, PCB
74—251, February
6,
1975, Opinion at
5.
Insofar as Respondent has not rebutted or otherwise
contradicted
the allegations
in the stipulation,
a prima
facie case has
been made by Complainants,
and the Board cannot do other than find a vio-
lation.
16
—
115
—6—
Further,
it
is also uncontradicted by Respondent
that Respondent’s
activities interfered with normal conversations carried on by Complainants
in
the use of the outdoor facilities associated with their residences.
There being no contrary indications in the stipulated facts, the Board
again cannot do other than find a violation of Rule 102 in such activity.
It
is the intent
of the Act, the Illinois Con~titution,and the Rules and
Regulations
of the Pollution Control Board adopted pursuant to
the authority
given in those documents,
that individuals
be entitled
to normally and
peacefully enjoy their own premises with sufficient serenity as a part
of
the enjoyment of life,within the general environment
of the State of
Illinois.
Ill.
Rev.
Stat., Ch.
111½,
Sec.
2(b) (1973);
Ill.
Const.
Art.
XI,
Sec.
2.
The Board has thus found that Complainants have shown a prima
facie
case, by demonstrating both interference and the unreasonableness
of such interference.
Having examined the defanses offered by Respondent,
we have found them to be inadequate.
Respondent’s failure to present
countervailing evidence, once faced with the burden of proof, leaves a
clear finding of violation.
Despite such
a finding of violation, however,
it is clear
that the
violations which did exist have been remedied.
Respondent has vacated the
premises which are the subject of
the complaints in this matter.
Further,
the stipulation contains statements by the Agency to the effect that
Respondent’s new facilities in Crystal Lake are not,
at the present time,
causing noise pollution so as to violate Rule 102 of the Board’s Noise
Pollution Control Regulations.
It also appears that Respondent’s plan
to move
to Crystal Lake was not the result of
one or both of these enforce-
ment actions, but instead resulted from independent decisions made prior
to the filing of either.
For that reason,
and because Respondent may
have
in good faith,
although mistakenly, believed that the prior lawsuit
constituted a license to carry on its
activities,
the Board feels that a
penalty would serve no real or useful design in
this matter.
It is
the
purpose
of the Environmental Protection Act
to restore, protect and enhance
the quality of the environment.
In
the Opinion of
the Board, this has
been accomplished.
This Opinion constitutes the findings of fact and eoRG1~asions~f law of
the Board in this matter.
ORDER
IT
IS THE ORDER of the Pollution Control Board
that:
1.
Respondent Barrington Sportsmen Unlimited,
Inc.
is found to have
violated Rule 102 of the Board’s Rules and Regulations for the control
of noise pollution in the operation of it~•premises in the Village of
Barrington during the period of August 10, 1973 to October
1,
1974.
2.
Respondents Walter and Virginia Ulick are dismissed.
16
—
116
—7—
I,
Christan
L. Moffett, Clerk of the Illinois Pollution Control
Board hereby certify
that the
bove Opinion
& Order were ado~pted on
the
/3~~
day of
I))
,
,
1975 by a vote of j~j
to
~
.
Christan
L. Moffett, C~j~k
Illinois Pollution Cont~’olBoard
16
—
117