ILLINOIS POLLUTION CONTROL BOARD
    September 5, 1996
    ANNE SHEPHARD, JAMES VERHEIN
    and JEROLD LECKMAN,
    Complainants,
    v.
    NORTHBROOK SPORTS CLUB,
    Respondent.
    )
    )
    )
    )
    )
    )
    )
    )
    )
    )
    PCB 96-206
    (Enforcement - Noise, Citizen)
    ORDER OF THE BOARD (by E. Dunham):
    This matter comes before the Board on a motion to dismiss filed on April 9, 1996 by
    respondent. Complainants filed a response to the motion to dismiss on June 6, 1996.
    Respondent filed a reply to complainants’ response on July 18, 1996.
    BACKGROUND
    The complaint in this matter was filed on March 28, 1996. Northbrook Sports Club
    (NSC) is a private, exclusive club with restricted membership located in Hainesville, Illinois.
    The club was established in 1944 and relocated from Northbrook in 1987 to its present
    location. The complaint alleges that gunfire from the club causes noise pollution in violation
    of Section 23 and 24 of the Act and 35 Ill. Adm. Code 900.102.
    The complainants filed a complaint (PCB 94-2) on December 31, 1993 before the
    Board alleging that respondent’s gunfire violated the Act and Board regulations. On May 5,
    1994 the Board dismissed the complaint finding that the complained of activity is an
    “organized amateur or professional sporting activity” and is therefore exempt from the Board’s
    noise standards. (Shephard v. Northbrook Sports Club, PCB 94-2, (May 5, 1994).) The
    complainants appealed the Board’s dismissal of the complainant to the Appellate Court. The
    Appellate Court affirmed the dismissal of the complainant finding that NSC was exempt from
    the Board’s noise standards and that Sections 25 and 3.25 are not unconstitutional. (Shephard
    v. Pollution Control Board, 272 Ill. App. 3d 764, 651 N.E. 2d 555, (2nd Dist. 1995).)
    MOTION TO DISMISS
    Respondent asserts that the complained of activity is an “organized amateur or
    professional sporting activity” as defined in Section 3.25 of the Environmental Protection Act
    (Act) (415 ILCS 5/3.25) and is therefore exempt from the Board’s regulatory jurisdiction
    pursuant to Section 25 of the Act. Respondent maintains that the complaint is frivolous to the
    extent that it asks the Board to rule on the constitutionality of the Act and the Premises
    2
    Liability Act (740 ILCS 130/1
    et. seq
    .). Respondent argues that the constitutionality of the
    Act has already been addressed by the Appellate Court in Shephard. Respondent contends that
    ruling on the constitutionality of the Premises Liability Act is beyond the Board’s authority.
    Respondent argues that the change in law does not affect the rights of the parties. In its reply,
    respondent argues that the present action is barred by res judicata and collateral estoppel.
    Complainants argue that recent changes in the Environmental Protection Act (Act) and
    the Premises Liability Act foreclose rights that the parties had to access the courts for a
    remedy at law. They argue that as such, the changes enacted in P.A. 88-598 are
    unconstitutional. Complainants argue that the exemption from the Board’s regulations and the
    amendments to the Premises Liability Act remove any remedy for any amount of noise arising
    out of the normal use of the firearm range. Complainants contend that the amendments to
    Section 3.25 of the Act and the Premises Liability Act as adopted by P.A.88-598 created new
    issues on the constitutionality of the Act that were not before the Appellate Court in Shephard.
    Complainants raised these issues to the appellate court, but the court did not reach the merits
    of this issue since these amendments occurred after the Board issued its decision dismissing the
    complaint.
    The complainants maintain that the Board has the authority to decide constitutional
    issues effecting its jurisdiction. Complainants present an interpretation of the Act that would
    apply the exemption for an “organized amateur or professional sporting activity” only to the
    Board’s numerical noise limitations and not to general nuisances cases. Complainants argue
    that this interpretation eliminates any conflict with the requirements of the Illinois constitution.
    LEGAL FRAMEWORK
    Section 24 of the Act provides as follows:
    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.
    (415 ILCS 5/24 (1994).)
    Section 25 of the Act provides, in part:
    The Board shall, by regulations under this Section, categorize the types and sources of
    noise emissions that unreasonably interfere with the enjoyment of life, or with any
    lawful business, or activity, and shall prescribe for each such category the maximum
    permissible limits on such noise emissions.
    * * *
    No Board standards for monitoring noise or regulations prescribing limitations on noise
    emissions shall apply to any organized amateur or professional sporting activity except
    as otherwise provided in this Section.
    (415 ILCS 5/25 (1994).)
    3
    Section 3.25 of the Act defines "Organized Amateur or Professional Sporting Activity"
    as:
    "ORGANIZED AMATEUR OR PROFESSIONAL SPORTING ACTIVITY" means an
    activity or event carried out at a facility by persons who engaged in that activity as a
    business or for education, charity or entertainment for the general public, including all
    necessary actions and activities associated with such an activity. This definition
    includes, but is not limited to, (i) rifle and pistol ranges, licensed shooting preserves,
    and skeet, trap or shooting sports clubs in existence prior to January 1, 1994, (ii)
    public hunting areas operated by a governmental entity, (iii) organized motor sports,
    and (iv) sporting events organized or controlled by school districts, units of local
    government, state agencies, colleges, universities or professional sports clubs offering
    exhibitions to the public.
    (415 ILCS 5/3.25 (1994).)
    Section 5(b) of the Premises Liability Act provides:
    (b) An owner or operator of a firearm range in existence on January 1, 1994, is
    immune from any criminal liability arising out of or as a consequence of noise or sound
    emissions resulting from the normal use of the firearm range. An owner or operator of
    a firearm range is not subject to any action for public or private nuisance or trespass
    and no court in this State shall enjoin the use or operation of a firearm range on the
    basis of noise or sound emissions resulting from the normal use of the firearm range.
    (740 ILCS 130/5(b) (1994).)
    DISCUSSION
    The doctrine of res judicata provides that a final judgment rendered by a court of
    competent jurisdiction on the merits is conclusive as to the rights of the parties and their
    privies, and, as to them, constitutes an absolute bar to subsequent action involving the same
    claim, demand or cause of action. (Matchett v. Rose, 36 Ill. App. 3d 636, 34 N.E. 2d 770,
    779 (1st Dist. 1976).) Res judicata also prevents relitigation of those issues actually raised in
    the first proceeding, as well as any issue that might have been raised. (Rein v. David A.
    Noyes and Company, 271 Ill.App.3d 768, 649 N.E.2d 64 (2nd Dist. 1995).) The proper test
    to determine the application of the doctrine is whether the actions are based upon a common
    core of operative facts, or whether the same evidence would sustain both actions. (Horton v.
    Caterpillar, Inc., 260 Ill.App.3d 150, 632 N.E.2d 1061 (3rd Dist. 1994).)
    Complainants base this new action on the amendments in P.A. 88-598 to Section 3.25
    of the Act and the Premises Liability Act effective on August 31, 1994. These amendments
    were not before the Appellate Court when it affirmed the Board’s dismissal of the prior action.
    The amendment to Section 3.25 added additional activities to those activities specifically
    designated as “organized amateur or professional sporting activity”. P.A. 88-598 also
    changed the date for which such activities need to be in existence from January 1, 1975 to
    January 1, 1994. Section 5 was added to the Premises Liability Act by P.A. 88-598.
    4
    According to Black’s Law Dictionary, an
    ex post facto
    law is “[a] law passed after the
    occurrence of a fact or commission of an act, which retrospectively changes the legal
    consequences or relations of such act or deed.” (emphasis added). In this case, the change in
    law complained of made no change in the rights or responsibilities of the parties whatever.
    The Board lacked jurisdiction in this case before the General Assembly changed the Act
    (Shephard v. Pollution Control Board, 272 Ill. App. 3d 764, (2nd Dist. 1995)) and the Board
    lacks jurisdiction to hear this case after the change in the Act, by its plain language. The
    simple clarification of the language by the legislature did nothing to modify the rights of the
    complainants. The change in the Act cannot therefore be deemed an
    ex post
     
    facto
    law as
    invalidated by the Constitution of the United States or of the State of Illinois.
    This action is identical to the action previously filed with the Board except that the
    complainants attempt to advance new arguments. The amendments to Section 3.25 did not
    effect the applicability of the definition to NSC. NSC would be considered an “organized
    amateur or professional sporting activity” under the prior definition and the definition as
    amended. The amendments to Section 3.25 expanded the activities exempted from the Board’s
    noise regulations by specifying additional activities.
    An administrative Agency is “a creature of statute,” and any power or authority
    claimed by it must find its source within the provisions of the statute by which it is created.
    (Granite City Div. of National Steel Co. v. Pollution Control Board, 155 Ill. 2d 149, 171, 613
    N.E. 2d 719, 729 (1993).) Section 5(b) of the Environmental Protection Act empowers the
    Board to determine, define and implement the environmental control standards applicable in
    the State of Illinois. (415 ILCS 5/5(b).) Review of the constitutionality of the Premises
    Liability Act is beyond the authority granted to the Board. While the Premise Liability Act
    does prohibit nuisance actions for noise emissions from firing ranges it is not an environmental
    control standard of which the Board has the authority to review.
    The Board finds that the complaint is barred under the doctrine of res judicata. The
    complaint is identical to the complaint filed in R94-2. The Board issued a final judgment in
    R94-2 on May 5, 1994 that was affirmed by the Appellate Court. The complaint is hereby
    dismissed and the docket is closed.
    IT IS SO ORDERED.
    Board Member M. McFawn concurred.
    Section 41 of the Environmental Protection Act (415 ILCS 5/41 (1994)) provides for
    the appeal of final Board orders within 35 days of the date of service of this order. The Rules
    of the Supreme Court of Illinois establish filing requirements. (See also 35 Ill. Adm. Code
    101.246 "Motions for Reconsideration.")
    5
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that
    the above order was adopted on the _____ day of ___________, 1996, by a vote of
    ______________.
    ___________________________________
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board

    Back to top