ILLINOIS POLLUTION CONTROL BOARD

August 

30, 1990

ROBERT 

KVATSAK and

ALICE JOAN KVATSAK (deceased),   

)

Complainant,

v.

)

PCB 89—182

(Enforcement)

ST. MICHAEL’S LUTHERAN CHURCH,

Respondent.

MR. ROBERT J. KVATSAK, APPEARED PRO SE.

MR. ALFRED L. SCHUBREGEL, JR., AND MR. CARL J. ELITZ, LORD,

BISSEL & BROOK, APPEARED ON BEHALF OF RESPONDENT.

OPINION AND ORDER OF THE BOARD (by B. Forcade):

This matter comes before the Board on a citizen’s complaint

filed by Robert J. Kvatsak and Alice Joan Kvatsak (now deceased)

(“Kvatsak”) charging that St. Michael’s Lutheran Church (“St.

Michael’s”) in LaGrange Park, Illinois has caused noise pollution

in violation of Section 24 of the Environmental Protection Act

(“Act”) and Section 900.102 of the Board’s regulations, 35 Ill.

Adm. Code 900.102, in the operation of its electronic carillon

system.

Procedural History

The complaint was filed on November 9, 1989. St. Michael’s

filed a motion to dismiss on December 21, 1989 alleging that the

complaint was frivolous and the Board lacked jurisdiction due to

the form of filing. The Board denied the motion to dismiss on

January 11, 1990. Hearing 

was

held on March 19, 1990.

Complainant’s brief was filed on April 12, 1990. Respondent’s

b~iefwas filed April 27, 1990 and Complainant’s reply brief was

filed on May 7, 1990.

On May 10, 1990, the Board issued an Order which provided

that respondent’s motio.n to exclude certain evidence, filed on

April 27, 1990, would be taken with the case in chief. The Board

hereby denies Respondent’s motion to exclude two letters in

support o~complainant’s position, which were admitted by the

hearing officer. See Transcript (Tr.) at p. 53. The Board

affir~is the hearing officer’s finding that the lettt~rs are

relevant. While admissable pursuant to the standard of 35 Iii.

Adm. Code 103.204, the Board notes that the weight of this

114 7(~

—2—

evidence is reduced accordingly, due to the inability of

Respondent to cross—examine the authors of the letters.

The Facility

St. Michael’s Lutheran Church is located at 500 East 31st

Street, LaGrange Park, Illinois. The location is on a busy

street, within a few blocks of railroad tracks. Other sources of

noise in the vicinity of St. Michael’s include street and rail

traffic, as well as considerable noise from airplanes passing

above.

The carillon sounds are transmitted from four speakers

attached at roof level on the church. The speakers point in four

different directions to cover the area in all directions from the

church. Since 1983 when the system was installed, the volume has

generally been set at about 60 of full capacity.

The Complaint

The complaint filed by the Kvatsaks alleges that noise

pollution is “caused by the use of an electronic carillon,

amplified through loudspeakers mounted on the roof of St.

Michael’s Lutheran Church.” Compi., para. 4. The noise

allegedly violates Section 24 of the Act in that it “unreasonably

interferes with the enjoyment of life or with any lawful business

or activity.” Section 24 of the Act. Section 900.102 of the

Board’s regulations is also allegedly violated by the emission of

sound beyond St. Michael’s property which causes noise

pollution. The sound emissions consist of “the amplification

of chimes, songs and gongs emitted from the loudspeakers on top

of St. Michael’s...” Compl., para. 6. The complaint alleges

that since 1983 chimes have been sounded hourly from 9 a.m. to 6

p.m. and that songs are played for 7—10 minutes daily, 7 days per

week at 12:30 p.m. and 5:30 p.m. Additionally, on Sundays, the

following schedule was alleged: songs are played at 7:45 a.m.,

10:30 a.m. and 11:30 a.m.; a gong is rung at 8:00 a.m., 9:30

a.m., and 10:45 a.m. Compl., para. 7.

The Kvatsaks describe the effect of the alleged noise

pollution as follows:

The use of these loudspeakers destroys the

peace and tranquility of our home both inside

and out.  Our sleep is disturbed, normal

conversation is impossible and average volume

on TV and radio is not enough to over ride the

noise. This amplification system •serves no

useful purpose, does not improve the quality

of our environment 

and offends the senses.

Compl., para. 8.

114-766

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Applicable Regulations

Title VI of the Act establishes procedures and standards for

noise control. Section 23 sets forth the legislature’s purpose

of preventing noise which causes a public nuisance. Section 24

prohibits emitting noise beyond one’s property which unreasonably

interferes with the enjoyment of life or lawful activities in

violation of Board rules or standards. The Board’s authority to

adopt noise regulations is found in Section 25.

Sections 23 and 24 of Title VI provide as follows:

Section 23

The General Assembly finds that excessive

noise endangers physical and emotional health

and well—being, interferes with legitimate

business and recreational activities, in-

creases construction costs, depresses property

values, offends the senses, creates public

nuisances, and in other respects reduces the

quality of our environment.

It is the purpose of this Title to

prevent noise which creates a public nuisance.

Section 24

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 regulation or standard adopted by

the Board under this Act.

The Board has implemented these sections of the Act in two

ways. First, the Board has adopted specific numerical

limitations on the characteristics of sound that may be

transmitted from source to receiver. As no numerical test data

were presented in this matter, those portions of the regulations

are not at issue. The second method of implementing the noise

provisions of the Act are found in 35 Ill. Adm. Code 900.101 and

900.102.

Section 900.101 Definitions

Noise pollution: the emission of sound that

unreasonably interferes with the enjoyment of

life or with any lawful business or activity.

114—767

—4—

Section 900.102   

Prohibition of Noise

Pollution

No person shall cause or allow the emission of

sound beyond the boundaries of his property,

as property is defined in Section 25 of the

Illinois Environmental Protection Act, so as

to cause noise pollution in Illinois, or so as

to violate any provision of this Chapter.

In effect, these two sections adopt a regulatory public nuisance

provision for noise control using the statutory phrase

“unreasonable interference with the enjoyment of life or with any

lawful business or activity” as the standard. The pleadings,

testimony and exhibits of the complainant, regarding noise, are

founded in this public nuisance theory, rather than in terms of

noise levels which exceed specific sound emissions levels.

Various noise enforcement cases, which the Board has previously

decided, include: James Kaji, Dorothy Kaji v. R. Olson

Manufacturing Co., Inc., PCB 80—46, 41 PCB 245 (1981); Citizens

of Burbank v. Overnite Transportation Company, PCB 84—124, 65 PCB

131, (1985), 88 PCB 285 (1988); Citizens of Burbank and People of

the State of Illinois, ex. rel., Richard M. Daley v. Clairmont

Transfer Company, PCB 84—125, 74 PCB 255 (1986); John W. Eilrich

v. James Smith, d/b/a Maywood Shell Car Wash, PCB 85-4, 77 PCB

245 (1987); Thomas & Lisa Annino v. Browning—Ferris Industries of

Illinois, PCB 87—139, 91 PCB 349 (1988); Anthony W. Kochanski v.

Hinsdale Golf Club, PCB 88—16, 101 PCB 11 (1989); William E.

Brainerd v. Donna Hagan, David Bromaghim and Phil Robbins, d/b/a

The Gables Restaurant, PCB 88—171, 98 PCB 247 (1989); and Brian

3. Peter v. Geneva Meat and Fish Market and Gary Pikulski, PCB

89—151, March 22, 1990; Will County Environmental Network v.

Gallagher Asphalt, PCB 89—64, July 19, 1990.

Section 900.101 and 900.102 were given judicial

interpretation in the case of Ferndale Heights Utilities Company

v. Illinois Pollution Control Board and Illinois Environmental

Protection Agency, 41 Ill.App.3d 962, 358 N.E.2d 1224 (1st Dist.

1976). In that case, the First District Court held the

regulatory language to be constitutional since sufficient

standards could be comprehended from reading Section 24, the

Board’s regulations, and the guidelines for enforcement cases

found in Section 33(c) of the Act. The Court affirmed the

Board’s finding of unreasonable interference with the enjoyment

of life, in light of adequate testimony describing the noise;

explaining the type and severity of the interference caused by

the noise; and indicating the frequency and duration of the

interference. Despite conflicting testimony, the Court upheld

the Board’s finding that 

the

interference was unreasonable.

11

4—-7(~

—5—

The Board has adopted the Ferndale Court’s approach to noise

pollution in cases which involve unreasonable interference rather

than numeric limitations. In a 1985 case finding a violation of

Section 24 of the Act and of Section 900.102 of the Board’s

rules, the Board reached this conclusion:

This testimony meets the Ferndale standard of

providing a description of the noise, explain-

ing the type and severity of interference

caused by the noise (sleep interruption) and

providing information on the frequency and

duration of the interference. This type of

testimony must be provided in any proceeding

for the Board to make a finding regarding

interference with the enjoyment of life.

Based on the above-cited evidence, the Board

finds that noises emanating from Overnite’s

facility, specifically from vehicle movement,

maintenance, horns and the public address

system, are causing interference with the

sleep and normal leisure time activities of

adjacent residents. Further, the Board finds

this interference is frequent and severe.

Citizens of Burbank v. Overnite Trucking, PCB

84—124, 65 PCB 131, 136, 138 (1985).

Section 33(c) Factors

As the Ferndale Court noted, in order to make a

determination concerning the reasonableness of the noise

emissions, the Board must consider the statutory factors found in

Section 33(c) of the Act. That Section provides as follows:

In making its orders and determinations, the

Board shall take into consideration all the

facts and circumstances bearing upon the

reasonableness of the emissions, discharges,

or deposits involved including, but not

limited to:

1.  the character and degree of injury to, or

interference with the protection of the

health, general welfare and physical

property of the people;

2.  the social and economic value of the

pollution source;

I 14-76’)

—6—

3.  the suitability or unsuitability of the

pollution source to the area in which it

is located, including the question of

priority of location in the area

involved;

4.  the technical practicability and economic

reasonableness of reducing or eliminating

the emissions, discharges or deposits

resulting from such pollution source; and

5.  any economic benefits accrued by a non-

complying pollution source because of its

delay in compliance with pollution

control requirements;

6.  any subsequent compliance.

Section 33(c) of the Act.

These factors guide the Board in reaching a decision on

whether or not noise emissions rise to the level of noise

pollution, which, by definition, unreasonably interferes with the

enjoyment of life, and which is proscribed by the Act and

regulations. The Illinois courts have held that the

reasonableness of the interference with life and property must be

determined by the Board by reference to these statutory

criteria. Wells Manufacturing Company v. Pollution Control

Board, 73 Ill.2d 225, 383 N.E. 2d 148 (1978); Mystic Tape, Div.

of Borden, Inc. v. Pollution Control Board, 60 Ill.2d 330, 328

N.E.2d 

(1975); Incinerator, Inc. v. Pollution Control Board, 59

Ill.2d 290, 319 N.E.2d 794 (1974); City of Monmouth v. Pollution

Control Board, 57 Ill.2d 482, 313 N.E.2d 161 (1974). However,

complainants are not required to introduce evidence on each these

points. Processing & Books v. Pollution Control Board, 64 Ill.2d

68, 351 N.E.2d 865 (1976).

Discuss ion

At the hearing held on March 19, 1990, Mr. Kvatsak testified

as to the nature and frequency of the noise emissions from St.

Michael’s electronic carillon system. Mr. Kvatsak testified that

he lives four houses from St. Michael’s. He first complained of

the noise to St. Michael’s pastor, Reverend Bakewicz 

1983.

Mr. Kvatsak then approached the village manager, 

who

arranged a

meeting between the pastor and Mr. and Mrs. Kvatsak. Mr Kvatsak

reported that no changes were forthcoming as a result of the

meeting. Tr. pp. 15—17.

Mr. Kvatsak indicated that other noises in the area were

considerable, but that the carillon noises were most disturbing

to him.

114—77 

—7—

Now besides the church amplifying, we have

other noises in the area which I can well

accept. We have very heavy air traffic out of

O’Hare Field, we have a railroad train two

blocks away.  31st Street is very heavily

traveled, plus we have noise from ambulances,

fire trucks and police cars, which is

acceptable. But these amplifying noises are

highly not acceptable, and its just been

overbearing that you can’t enjoy the privacy

of your home, when I feel we, myself and other

people who have objected to this, as taxpayers

must have some rights of some privacy. We

have nothing, and they refuse to cooperate in

any way.

Tr. p. 17.

***

The only thing that will drown out the church

is the airplanes, which I wish they would

continue to fly over.

Tr. p. 24

The frequency and duration of the noise were described at

hearing. The chimes sound the time hourly from 9:00 a.m. to 6:00

p.m. and hymn sessions lasting eight—to—ten minutes are played

twice daily. Additionally, on Sundays the carillon is first

played at 7:45 a.m., and a call to worship is played before the

services. Tr. p. 18; See also Tr. Pp. 68,69.

Mr. Kvatsak described the nature of the interference with

his enjoyment of life. Mr. Kvatsak indicated that his

conversations, television watching, and listening to the stereo

were interrupted by the carillon. Tr. p. 25. This was not a

problem indoors during the winter, but was a problem indoors

during the summer when the storm windows were removed. Tr. p.

22. With respect to physical or mental problems, Mr. Kvatsak

testified that the carillon had interrupted the daily noon—time

rest of his wife who, preceding her death, was very ill with

arthritis. It also prevented him from hearing her call him over

the intercom when he was outdoors. Mr. Kvatsak himself did not

suffer from medical problems as a result of the noise.

Mr. Kvatsak presented a witness, Mr. Pauli, a friend, who

visits a couple of times a week, whose home is not within the

sound of the carillon. 

Mr.

Pauli testified that during his

visits conversation is disrupted by the carillon and that this

noise is quite loud in the house. Tr. p. 57.

1 1~1~771

—8—

As noted earlier, Mr. Kvatsak introduced into evidence two

letters from two area residents, who were not at hearing,

indicating that each resident found the carillon annoying or

disturbing.

Mr. Kvatsak also presented as evidence a homemade audiotape

of the carillon sounds in the summertime as recorded inside and

outside his home. The hearing officer denied admission of the

tape into evidence but accepted it as an offer of proof for the

Board’s decision. Tr. pp. 8—13. Counsel for St. Michael’s heard

part of the tape before the hearing and objected to its

admission, citing Annino v. Browning—Ferris Industries, PCB 87—

139, 91 PCB 349 (1988). As the Board observed in that case, the

key issue is the accuracy of the homemade tape’s representation

of actual noise levels at relevant locations on complainant’s

property. For this reason, the Board hereby affirms the Hearing

Officer’s denial of the tape’s admission into evidence.

On behalf of St. Michael’s, its pastor, Reverend Bakewicz,

testified. Rev. Bakewicz stated that the carillon system was

professionally installed in 1983 with four speakers which were

positioned to project sound over as wide a range as possible and

with the intention to avoid directing the sound at any specific

structures. Tr. pp. 65—67. After Mr. Kvatsak complained of the

noise, St. Michael’s personnel went on the roof to investigate

redirecting the speakers, but concluded that the original

installation was still best. Tr. p. 67. Rev. Bakewicz also

testified that an immediately adjacent two—story structure and

several dense trees might provide some interruption of the direct

transmission of sound to Mr. Kvatsak’s home. Tr. pp. 67, 68.

See also testimony of Mr. & Mrs. Babiar, Tr. pp. 86—88, 104,

105. Rev. Bakewicz stated that the carillon has been played at

about 60 of its possible maximum volume continuously since

1983. Tr. p. 63. He has received no other complaints of noise,

and, in fact, reportedly has received many positive comments

since installing the system. Tr. pp. 72—74.

St. Michael’s presented two witnesses, Mr. and Mrs. Babiar,

who live next door to St. Michael’s, between the church and Mr.

Kvatsak’s house. The Babiars each testified that although the

speakers are very near their home, they are not disturbed at all

by the carillon, even during afternoon naps in a bedroom which

faces St. Michael’s, and their normal activities are not

disrupted. Tr. pp. 78-110. The Babiars fully described their

property, including trees which might act as a sound barrier.

Each testified that he or she was not in any way affiliated with

Rev. Bakewicz or St. Michael’s and was unaware of any complaints

by neighbors other than Mr. Kvatsak.

I 14—772

—9—

Section 33(c) Analysis

The Board must consider the six statutory criteria of

Section 33(c) in reaching a determination on whether the carillon

unreasonably interferes with life and property.

Section 33(c)(l) directs the Board to consider the character

of the interference caused by the noise emissions from St.

Michael’s. The standard to which the Board refers is that the

noise substantially and frequently interferes with the use and

enjoyment of life and property, beyond minor or trifling

annoyance or discomfort. See, e.g., Brainard, PCB 88-171, p.

4. In this regard the record presents conflicting evidence in

that some neighbors experience no discomfort and Mr. Kvatsak is

disturbed by the noise. Unlike the Ferndale case, 41 Ill.App.3d

962 (1976), and the Overnite Transportationcase, 65 PCB 131

(1985), nighttime interference is not at issue in this

proceeding. Normal sleeping hours are not interrupted by St.

Michael’s carillon and the disturbance which Mr. Kvatsak

experiences is not extreme, such as with medical consequences.

Furthermore, the alleged adverse impact of the sounds is limited

to daytime hours in warm weather, and is of brief duration. The

Board finds that the record does not support a finding of

substantial interference with life and property, but, rather,

reveals minor annoyance in a physical setting which already is

beset with several significant sources of noise.

With respect to Section 33(c)(2), St. Michael’s Church,

including the traditional use of the carillon, clearly has social

value. As Mr. and Mrs. Babiar’s testimony suggests, this may

extend beyond St. Michael’s own membership, since the Babiars

enjoy the carillon and they are not members.

Section 33(c)(3)’s focus on the suitability of the alleged

pollution source to its locale would not favor a finding of

violation, as churches would typically be located in a

residential or mixed use area. The record presents no support

for the proposition that St. Michael’s is inappropriately

located. Although Mr. Kvatsak occupied the area prior to the

installation of the carillon system, the record does not support

a conclusion that the 1983 installation would be inappropriate

for the locale.

Section 33(c)(4) directs that the Board consider the

technical practicability and economic reasonableness of reducing

the emissions. The Board can infer from the testimony of Rev.

Bakewicz, that the system is operated at 60 of its potential

volume, that further sound reduction is technically possible at

no economic cost. However, this factor does not warrant

requiring such action, particularly since the practical effect

would be that some persons, who may enjoy the carillon, might not

hear the carillon at all.

114-773

—10—

Section 33(c)(5) addresses the economic benefits from non-

compliance. A failure to comply has not been established in this

case, but even if shown, no economic benefits would have accrued

to St. Michael’s.

Section 33(c)(6) involves the issue of any subsequent

compliance. St. Michael’s has not changed the volume at which

the carillon sounds are transmitted. The record does not suggest

that the alleged violation has been cured, and, therefore, this

factor is inapplicable.

Conclusion

When considering all the facts and circumstances as required

by Section 33(c), the Board finds that the record does not

support a finding that St. Michael’s’ has caused noise pollution

pursuant to the Act and the Board’s regulations.

This Opinion represents the Board’s findings of fact and

conclusions of law in this matter.

ORDER

For the foregoing reasons, the Board finds that St.

Michael’s Lutheran Church is not in violation of Section 24 of

the Illinois Environmental Protection Act and of 35 Ill. Adm.

Code 900.102. This matter is dismissed.

Section 41 of the Environmental Protection Act, Ill. Rev.

Stat. 1987, ch. lll~,par. 1041, provides for appeal of final

Orders of the Board within 35 days. The Rules of the Suprei-’ae

Court of Illinois establish filing requirements.

IT

SO ORDERED.

Board Member J.D. Dumelle dissented and Board Member 3.

Marlin concurred.

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control

Board, hereby certify that the above~Opinion and Order was

adopted on the 

day of      

1990, by a

vote of 

~~—/

I

/‘~

—7_s

/~/

Dorothy M. G~nn, Clerk

Illinois Po~lution Control Board

114—7 74