BEFORE

THE

ILL

BOARD

MILTON

and

VIRGINIA

L. KAMHOLZ

)

Complainants

)

PCB02-41

)

(Citizens

Enforcement

— Air,

Noise)

LAWRENCE

and

MARIANE

SPORLEDER

)

Respondents

)

RESPONDENT’S

SUPPORTING

BRIEF

NOW

COME

the Respondents,

LAWRENCE

and MARIANE

SPORLEDER,

and

through

their

attorneys,

MADSEN

SUGDEN

& GOTTEMOLLER,

and

in support

their

position

submit

the

following

brief.

Allegations

This action

was

initiated

KAMHOLZ

November

11, 2001,

which

complaint

alleged

SPORLEDER

violated

415

ILCS

5/9(a),

and sections

900.102,

901.102(a),

201.102

and

243.102(a)

of the

Pollution

Control

Board’s

regulations.

Each

alleged

violation

is based

upon,

individually

or in

combination,

the

riding of

dirt bikes,

all-terrain

vehicles

(ATV)

and

go-carts

SPORLEDER

their own

property.

On January

10,

2002,

the Pollution

Control

Board found

KAMHOLZ’S

allegations

regarding

violations

of 201.102

and

243.1029(a)

to be frivolous,

and

properly

struck

them

from

the

complaint.

The

surviving

allegations

are

415 ILCS

5/9(a),

which reads:

person

shall

cause or

threaten or

allow

the discharge

emission

of any contaminant

into

the environment

in any State

as to

cause or

tend to cause

air pollution

in Illinois,

either

alone

combination

with contaminants

from other

sources,

or so as

violate

regulations or standards adopted by the Board under this

Act.

“Air Pollution”

is defined

under 415 ILCS 5/3.02,

as the

presence in the atmosphere of one or more contaminants

sufficient quantities

and of such characteristics and duration

as to

be injurious to

human, plant, or animal life, to health,

or to

property, or to

unreasonably interfere

with the enjoyment of life or

property,”

The

second

surviving allegation is Section 900.102

the

Board’s regulations.

This

section

provides that “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 Act,

so as to cause

noise

pollution

in Illinois, or so

as to violate any provision of this Chapter.”

Noise

pollution is defined under Section 900.101 as

“the emission

of sound

that

unreasonably

interferes

with the enjoyment of life with any lawful

business or

activity.”

The

third surviving allegation is Section 901.102(a) of the Board’s

regulations.

This

section prohibits

emitting

sound above certain numeric limits

during daytime

hours

from

source

on Class A, B,

land, to any receiving Class A Land.

Moreover,

Section

951.105 of the regulations establishes

the necessary

techniques

for

measuring

alleged violations

under

Section 901 of the regulations.

KAIVIHOLTZ

also conclude in

their complaint, that the riding

has not allowed

them

enjoy

their

property; that their property has depreciated in value,

and; the

riding has

negatively

impacted

their

physical and mental health. Specifically,

KAMHOLTZ

allege that they

suffered

sore

throats,

headaches, and that the odor from the

exhaust fumes has

infiltrated their

home.

Facts

On November 19,

2002, a hearing

was

held

with regard

to the above-alleged

violations,

and the

following facts were

established. The

parties are neighbors to each

other, and live

Sullivan Road,

Woodstock Illinois. The surrounding area in which

the parties live is

rural and

agricultural in nature, with

SPORLEDER

property being zoned as Estate

5 under the

County of

McHenry

(Tr. 285). The SPORLEDER property consists of five acres,

which requires

the use of

certain vehicles

for maintenance purposes; specifically a 1993 Polaris

350 ATV, and

a 1946 Ellis

Chalmer

tractor (Tr. 282).

Moreover,

the surrounding landowners also

use similar vehicles,

and

ride them in

the ditch line, which runs parallel with Sullivan Road.

(Tr. 286).

Further, it was

established that over the

past sixteen years, SPORLEDER

allowed

their

grandchild to

operate mini-bikes

and

motorcycles on their own property.

That

the vehicles

were

factory built

(Tr. 287). The time allowed for said operation

was set by SPORLEDER

from

11:00

a.m.

to 8:00 p.m.

and

that the grandchild owns one dirt bike

at the time of hearing

(Tr. 256).

addition, it

was undisputed that

SPORLEDER

has not allowed the

use of any truck

or car

on the

property

itself since 1997.

SPORLEDER

testified that their

grandson would educate

himself

by working on

the dirt

bikes

andlor

trucks, and by doing so, he would

learn how to fix

motors,

and learn

other

mechanical

skills (Tr. 253), and

that they

allowed

the riding

so that their

grandson would

keep

out

trouble (Tr.

270-7 1), and because of

the rural nature

of the area, there

was not

of other

activity

for an adolescent (Tr.

286).

After receiving the KAMHOLTZ complaint,

and learning

that

action

was pending,

the

grandson has not

ridden a dirt

bike

ATV on the property.

Further,

SPORLEDER

attempted

resolve the

alleged problem by

restricting

the

riding of dirt bikes

and ATVs

so that

the riding

avoided the

abutting corner of the KAMHOLTZ property. Additionally,

evergreen trees were

planted

to buffer

the sound of the vehicles (Tr. 259-60). SPORLEDER

testified

that the

riding

did not

cause noise,

which bothers them (Tr. 286), and that

SPORLEDER entertained

guests

while the

riding took place (Tr.

288-89).

In their

complaint, KAMHOLTZ complained that the alleged

violations

were

on a

continued

basis

since 1993. Testimony revealed that they have

not

spoken with

SPORLEDER

since

1993 (Tr.

248).

Moreover it was in 1993, that

KAMHOLTZ

complained

that

SPORLEDER

had

improperly

burned material in violation of

County Code

(Tr. 248).

Further

testimony showed that KAMHOLTZ made no

attempt to contact

SPORLEDER

and

resolve the alleged

riding

problem, and that notice of this

action was

the

first

time

SPORLEDER

was aware of the problem (Tr. 289). Moreover,

SPORLEDER

testified

on cross-

examination by

KAMHOLTZ that they would

have stopped the

riding if

KAMHOLTZ

had

contacted

SPORLEDER

(Tr. 269).

Videotape

evidence

was

also introduced by KAMHOLTZ.

SPORLEDER

directs

the

Board to

important facts

revealed

by the video. A portion

of the video involves

the driving

of a

pick up,

which has not

occurred

in over five years as

previously stated.

importantly,

KAMHOLTZ make

the following

comments while

the videotape:

“ATVs

and mini

bikes

are no

problem.” (Tr. 90);

has been

“a

long

time

since we had

riding goin

on, this

bike is

a little

quieter.” (Tr. 90);

“he went up on the other side.

That is good.

not so loud

when

goes up

there.”

(Tr. 91).

Further, the video does not show

any dust accumulation,

nor

exhaust

pollution.

fact

KAMHOLTZ

have their windows and

door

exposed

to the natural

air

during

the

video.

Finally,

the

video shows

only a limited number

of days.

Specifically,

June 15, 1997;

May

25,

1998;

May

30, 1998; June 24, 1998;

May

13, 2001,

May 19, 2001;

Mother’s Day

2001;

June 8,2001, and;

July24, 2001.

Argument

SPORLEDER

will

address

each alleged violation

separately,

and demonstrate

how

KAMHOLZ

have not

met

their

burden of proof.

Section

9(a)

Under the Act

and Board regulations,

“air

violation

has

occurred if

the complainant

has proven

that

the complained

of . . . air pollution

has unreasonable

interfered

with

the

complainant’s

enjoyment

of life

“ Detlafv.

Boado

EPB Park

Services,

Inc., PCB

92-26

(1993).

In Detlaf

the only

air

pollution

evidence produced

at hearing

was

smoke

rising

from

cooking area in

neighboring

park. The Board

concluded

that

the complainants

did

not

produce

adequate

evidence

of an unreasonable

interference

due to the

smoke.

The

present

case is very similar

to Detlaf with

regard

air

pollution.

Complainants

produced

twelve witnesses,

eight

of which

did not provide any

testimony

to air pollution.

the

KAMHOLTZS,

Mrs. KAMHOLTZ

testified

that

“you

can

see a little

dust

behind

the

car”

when referring to

picture

(TR.

80)(emphasis

added).

She further

concluded,

without

support,

that

“where you see

ruts like that

you

know,

there

is dust.”

(Tr. 92-93).

Her

testimony

devoid

of any

fumes,

exhaust,

or dust

caused

by SPORLEDER,

which

unreasonable

interferes

with the

enjoyment

of her property.

Mr.

KAMHOLTZ testified

that he

could not relax

because

the riding was

taking

place

(Tr. 189).

When asked

why

replied:

guess it

was

stress caused,

caused

stressful

feeling.

Because of?

The noise, probably

mostly. I probably

wasn’t

as close to

the

dust

and

fumes

because

usually

was working

towards

the

other

end of the property.

By his

own admission,

Mr. KAMHOLTZ

demonstrates

that he was

not

near the

alleged

dust

fumes,

and

that he was enjoying

his property

working

the land.

The

next witness who testifies

to any air

pollution

is Natalie Secor.

Her entire

air

pollution

testimony consists

of the following

at Tr.

159:

Have you ever

seen dust or smelled

exhaust fumes

while riding

takes place?

Yes.

There is

nothing in

Ms. Secor’s testimony,

which

demonstrates

that

the dust

and/or fumes

unreasonably

interferes with

the

KAMHOLTZ’S

enjoyment

of their property.

In fact,

Ms.

Secor

does

not

even

testify

that the fumes smell

bad.

Similar

exchange is found in

the testimony

of Mike Dworzynski

Tr. 175.

you

ever

smell exhaust

fumes and

see the dust from

these vehicles?

Yes.

Again,

the testimony

is insufficient

support

the allegations

the

complaint,

that

SPORLEDER

has caused

air pollution, which

unreasonably

interferes

with

KAMHOLTZ’S

enjoyment

their property.

KAMHOLTZ

never put forth

evidence

testimony,

which

demonstrates

that

SPORLEDER

has

violated Section

9(a) of the

Act. As a

result,

the Board

must

find

that

KAMHOLTZ has

not met

their burden

as to this allegation.

Section

901.102(a)

This

section prohibits emitting

sound above certain

numeric limits during

daytime

hours

from a

source on Class

A, B,

C land, to

any receiving Class A

Land. Further, Section

951.105

the

regulations

establishes

the necessary

techniques

for measuring

alleged violations

under

Section

901.102(a).

KAMHOLTZ

offered the expert

testimony of Greg

Zak

(Tr. 202)

to assist them

proving

their case.

However, Mr.

Zak

admitted

that he did record

any

decibel reading

from

the

Kamholtz

property,

nor

did he witness any

of the alleged

violations (Tr. 217).

More importantly

Mr.

Zak

testified

that the equipment

and

methods

used

KAMHOLTZ

did not satisfy

the requirements for

measuring

violation under

901.102(a)

(Tr.

237).

Further, the

record is devoid of

any sound measurements

performed

KAMHOLTZ

that

would satisfy the

requirements

of Section 951.105.

Regardless

of the lack of measuring

standards,

KAMHOLTZ

wishes

the

Board

to believe

that

SPORLEDER

violate

901.102(a),

and that KAMHOLTZ

has

sustained

their

burden.

result of

the record

being

devoid

of a

violation of 901.102(a),

the

Board

must

find

for

SPORLEDER

this charge.

Section 900.102

The

issue

surrounding

the violation

under this

section,

is if

the alleged

noise

created

SPORLEDER

unreasonably interfered

with the

enjoyment of life?

The

section

provides

that “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 Act,

so as to

cause

noise

pollution in

Illinois,

or so as to violate

any

provision

of this Chapter.”

Noise pollution is

defined under Section

900.101 as “the emission

of sound that

unreasonably

interferes

with the

enjoyment

of life with any lawful

business or activity.”

“Sounds must

objectively affect

the

complainant’s life or business

activity.”

“The

unreasonableness

of noise must be

determined in

light of the factors set forth

Section

33(c) of

the Act.

(415 ILCS 5/33(c).

Detlaff(emphasis added).

Addressing each

factor under 3

3(a),

it is

clear that KAMHOLTZ life

and enjoyment

the property

has not been interfered

with

unreasonably.

Character

and Degree of Injury:

The complaint alleges

that the noise

from

SPORLEDER

occurred on

a continuous

basis,

and caused harm to

their physical

and mental

health. Specifically,

KAMHOLTZ allege

that

they suffered from sore

throats, headaches,

and

that

the odor from the

exhaust fumes has infiltrated

their home.

However,

the

record is silent as to any

physical ailments suffered

by KAMHOLTZ.

physician reports were

tendered; no

testimony as to physical injury

was offered.

witness

testified

that they suffered sore throats or headaches.

In fact, the

record shows

that

KAMHOLTZ

hosted parties during the ten years in

question, and not

one

guest to

the

parties

testified

that

they

physically suffered

from the alleged pollutants

from SPORLEDER.

Moreover,

the

riding is not continuous.

The riding

does not occur

in the early

morning

hours,

nor does

the riding take place late at night.

The evidence also

demonstrates

only nine

days

of riding

activity.

Out of a ten year period,

nine

days is not

continuous in nature.

The

Complaint

also alleges a loss in

KAMHOLTZ property

value. In

order to

support

this

claim,

KAMHOLTZ called Lillian Caraucio, a licensed

real estate agent

as a witness.

Ms.

Caraucio

never witnessed the live riding of any vehicles

by SPORLEDER

(Tr. 56). Because

she

had

not

seen the

riding activity in

person, Ms. Caraucio had

to speculate if someone

would

purchase a piece

of property

which

was adjacent to land

where mini-bikes

and

ATVs were

ridden

(Tr. 58).

The Board should

take notice

that the

speculation

is not even

with regard to

the

KAMHOLTZ

property, but

rather

a piece of property in

the abstract.

Moreover, when

asked by KAMHOLTZ

an interested party

in the

KAIVIHOLTZ

property

would be dissuaded

by the riding

of the vehicles, Ms.

Caraucio

responded,

“Well,

can’t say

that every buyer would

say that.” (Tr. 61).

Further

still, in her

own

written

opinion,

Ms.

Caraucio stated

that the riding of

dirt bikes “within

70 feet of the

subject property

could

detrimental

to the sale of

this property.”

(Tr. 64)(emphasis

added).

The

testimony

of Ms. Caraucio

brought out

the fact

that

alleged

problem

caused

SPORLEDER

is subjective

to KAMHOLTZ.

When asked

why

KAMHOLTZ

did not

purchase

another piece of property,

Ms. Caracio stated

that the neighboring

property

had

motorbikes

(Tr.

58).

Then,

on cross-examination,

she testified that

two buyers

were

interested

purchasing

the

KAMHOLTZ property

that

they

could

ride their motorcycles

on the

property

(Tr. 66-67).

The record is silent

as to any physical

damage

to the

property,

KAMHOLTZ,

and

with

regard

any

loss property value.

As a result,

the character

and degree

of injury is

non-existent,

and the general

welfare

of the party and property

is not

harmed.

Social and economic

Value

of Pollution

Source:

Testimony

at trial

revealed

that

the

KAMHOLTZ

children

operated similar

bikes in

the past (Tr.

160).

In fact,

KAMHOLTZ

witness,

Mike

Dworzynski,

testified

that

he rode

motorbikes

when

was

younger,

and

that

currently

allows

his

children to ride on

their property

in Belvidere,

Illinois

(Tr.

179).

Moreover,

other

residents in

the area

also use similar

vehicles for recreational

and maintenance

purposes

(Tr.

285-86).

addition to the complainant’s

witnesses enjoying

the social benefit

of such

activity,

SPORLEDER

testified

that

the ATV

used for

yard

maintenance

and

for

entertaining

their

grandchildren (Tr.

257). SPORLEDER

also testified

that their grandson

would

educate himself

working

the dirt bikes

and/or trucks,

and by doing

so,

would

learn

how

fix

motors,

and

learn other

mechanical skills

(Tr. 253),

and that they

allowed the

riding so

that

their

grandson would

keep

out

of trouble

(Tr. 270-7 1), and

because of

the

rural nature

of the

area,

there

was not of other

activity for an adolescent

(Tr. 286).

The

social

value in

the rural setting is

very high as

evidenced

by the number

participants.

It is

clear from the record

that

SPORLEDER

are

not alone in

this activity.

Riding

motorbikes

is an activity

that the

KAMHOLTZ children,

in-laws

and grandchildren

have

engaged

in, as well as

many neighbors.

Suitability of the Source:

The

properties in

question are

in a rural

setting,

with

many of the

lot sizes

being five acres

or greater. The

physical character

of the

land

is most

suitable

for the engaged activity.

The

Board

is not considering

motorbike

riding

in a

highly

congested

neighborhood,

with half-acres

lots,

with

twenty

feet

between

homes.

The tone

the complaint

and

requested relief,

is that the

KAIVIHOLTZ

want

to live

quite

residential

area. The area

zoned as Estate

property,

and

the riding

motorbikes

is a

permissible

activity.

However, if

KAMHOLTZ desire

a tranquil

place to live,

perhaps

private

community

would

better

suit them. In other

words,

KAIVIHOLTZ

want

the

spaciousness

of a

five-acre

parcel,

but

they

do not want

to deal with

other aspects

of owning such

land.

Technical

practicability and

economic

reasonableness

of control:

Because

the

area

question is rural, and

therefore

without

many

natural

or man-made

barriers

block

sound,

would

be economically burdensome

require

SPORLEDER

install

a devices

eliminate

the

sound.

Additionally,

KAMHOLTZ

has

not come

forth

with

the

type

barriers,

the

location

barriers,

and

the

cost of

such

barriers.

Without

this

information,

the

Board

cannot

determine

the

feasibility

such

action.

The

record

does

reflect

that

SPORLEDER

has

planted

trees

absorb

some

of the

sound,

and

that

they

have

avoided

riding

certain

portions

their land

(Tr.

259).

However,

to require

SPORLEDER

to eliminate

all use

of the

vehicles

would

unreasonable

and

unjust

SPORLEDER.

Subsequent

Compliance: As discussed

supra,

SPORLEDER

has

modified

their

activity,

including

not

riding

the

property

for

the

last

year.

However,

SPORLEDER

does

have right

enjoy

his property,

and

the

riding

may

resume.

Moreover,

had

KAMHOLTZ

contacted

SPORLEDER

ten

years

ago

address

the

alleged

pollution,

this

matter

would

have

been

resolved

in a more

neighborly

fashion.

Conclusion

Unreasonable Interference:

The

record

does not

show

any

physical

harm

KAMHOLTZ

person

or property.

Moreover,

the

complaints

allowed

similar

activity

occur

their

property

the

past.

Further,

other

residents

the

neighborhood

engage

activity.

There

evidence

diminution

value

the KAMHOLTZ

property.

fact

the

record

shows

that others

would

purchase

the

property

to ride

motorbikes.

The

videotapes

show

that

windows

to the KAMHOLTZ

property

are

open,

and that

Mrs.

KAMHOLTZ is

speaking

normal

level without

any throat

ailments.

The

tapes

also

show

that

the

television

can

heard while

the

riding

is taking

place.

SPORLEDER

contend

that

KAIVIHOLTZ

have not

met

their

burden

of proof

to show

that

the riding

has

objectively

unreasonably

interfered

with

the

enjoyment

their

property.

Conclusion

This

case is not the type

case

that should

front of the Board.

Rather, it

is a

dispute

between

two

neighbors.

A dispute that

began with something

other than riding

motorbikes and

ATVs. The animosity displayed

by KAMHOLTZ arises from

a burning issue

which occurred

ten years

ago. Because SPORLEDRER did not

commit any burning

violations,

that

matter was

dismissed by a court of law.

Unable to prosecute the burning issue, KAHMOLTZ

found another

SPORLEDER

activity

that

bothered them. KAMHOLTZ became fixated

on the activities of

SPORLEDER,

but

never

once made

any effort to communicate

with SPORLEDER.

Instead

KAMHOLTZ

videotaped SPORLEDER,

and complained

anyone

who

would listen:

the sheriff,

county

board,

and

now

the

Pollution Control Board.

However, the

activity engaged in

by SPORLEDER is not pollution.

The record

devoid

of any

evidence of an air pollution violation, or noise

pollution under

Section

901.102(a).

Moreover, there

is insufficient evidence to

support the remaining

allegation: that

the

riding

unreasonably

interferes

with the KAMHOLTZ

enjoyment

of the

property in

objective

manner.

It is

clear from the record that the operation

of motorbikes has

fallen out

KAMHOLTZ

favor.

KAMHOLTZ allowed their children

to ride on their

property in

the past,

but they

longer

allow

it. They

desire

move,

but

will not

purchase a piece

of property,

because

the

neighbors may

own motorbikes. The KAMHOLTZ

in-laws

own and ride

motorcycles

on their

property, but

will not do so when KAMHOLTZ

come and

visit.

However, the subjective dislike of motorbikes,

and

ATVs is not

the

standard

the Board

required

to use.

Objectively,

KAMHOLTZ has not

proven that

the activity

engaged

SPORLEDER

unreasonably interferes with their enjoyment of the property. As discussed supra,

other people

were

interested in purchasing the KAMHOLTZ property to engage in similar

activity.

Moreover,

other neighborhood residents operate motorbikes and ATVs.

What

KAMHOLTZ

defines

as pollution, is acceptable and desired behavior by others.

WHEREFORE,

because KAMHOLTZ

have not met their burden of proof, the

Board

must find in

favor of

SPORLEDER.

Respectfully submitted,

LAWRENCE and MARIANE

SPORLEDER,

JOSEPHGOTTEMOLLER

MADSEN,

SUGDEN

& GOTTEMOLLER

Attorneys

for

Respondents

One

North

Virginia Street

Crystal

Lake, IL

60014

(815)459-5152