ILLINOIS POLLUTION CONTROL BOARD
July
1,
1993
DALE DETTLAFF and
)
DEBORAH
DETTLAFF,
)
Complainants,
PCB
92—26
V.
)
(Enforcement)
EDUARDO
P.
BOADO
and
EPB
PARK
SERVICES,
INC.,
)
)
Respondents.
HOWARD
N.
LANG
AND
IRENE
DAVID
APPEARED
ON
BEHALF OF THE
COMPLAINANTS;
PAUL
K.
VICKERY
OF
HOPKINS
&
SUTTER
APPEARED
ON
BEHALF
OF
RESPONDENTS.
OPINION
AND
ORDER OF THE
BOARD
(by B. Forcade):
This matter comes before the Board on a complaint filed by
Dale and Deborah Dettlaff
(Dettlaffs) on February 14,
1992.
The
complaint alleges that noise and air pollution are generated from
the respondents’ property.
The complaint alleges violations of
Sections 9(a),
23 and 24 of the Environmental Protection Act (415
ILCS 5/9(a),
23
& 24
(1992)).
Hearings were held on June 30,
August
3, and September 2,
1992 in Lake Zurich,
Illinois.
Members of the public attended the hearings.
The Dettlaffs
submitted their final brief on October
9,
1992.
The respondents
presented their final brief on November 6,
1992.
On November 30,
1992,
the Dettlaffs filed a reply brief.
BACKGROUND
The Dettlaff family consists of Dale and Deborah Dettlaff
and their three daughters ranging in age between eight and
fifteen.
(Tr.
at 69.)
The Dettlaffs reside in Lake Zurich on a
parcel of land located on Lake Zurich that is owned by Deborah
Dettlaff, her mother and Deborah’s sister.
(Tr. at 63.)
The
parcel of land is comprised of 6.2 acres of which approximately
2.2 acres is in the water.
(Tr.
at 63.)
Improvements on the
property consist of the Dettlaff residence,
the residence of
Deborah Dettlaff’s sister, and a three car garage.
(Tr. at 63.)
The Dettlaffs moved into the residence in June of 1975.
(Tr.
at
63.)
In the time that the Dettlaffs have lived
in this house
they have made several improvements to the property.
(Tr. at 65.)
When the Detlaffs moved into the home in 1975,
it was a small
three bedroom,
one bath almost summer-type home.
(Tr. at 64.)
The Dettlaff home now has four bedrooms, three baths,
family room
and a finished basement.
(Tr. at 63.)
01
~.L.-OOJ 5
2
Nestlerest Park (Park)
is a picnic area and amusement park
owned by Eduardo P.
Boado and operated by EPB Park Services.
(Tr.
at 345.)
The Park has been in operation as an amusement park
since before 1955.
(Tr. 179.)
Mr.
Boado purchased the property
and business in 1986.
(Tr.
at
345.)
The following attractions
and activities are in operation at the Park:
Lake Zurich Queen
(Show Boat), putt-putt golf, ferris wheel,
whip ride,
skeetball,
dunk tank,
skill games, T—Bone’s trailer (clown act),
two
volleyball courts,
softball diamond, horseshoe pits, pingpong
tables, disc jockey,
swing set, teeter-toter and bingo.
(Tr.
at
363.)
The Dettlaff property is bounded by Robertson Road on the
south, Lake Zurich to the north and a residential area to the
east.
Nestlerest Park is located to the west of the Dettlaffs’
property.
(Comp.
Exh.
12
& 13.)
The distance from Robertson Road
to Lake Zurich or the length of the boundary between the Dettlaff
property and Nestlerest Park is approximately 530 feet.
(Comp.
Exh.
12.)
The shoreline of Nestlerest Park runs approximately
240 feet.
(Comp.
Exh.
12.)
The frontage of the Park along
Robertson Road runs approximately 539 feet.
(Comp.
Exh.
12.)
The
Dettlaff residence is located
in the northwest corner of the
property.
(Comp.
Exh.
12.)
The putting green is located directly
west of the Detlaff’s residence.
(Comp.
Exh.
12.)
The whip ride
is located south of the putting green, and the barbecue area is
south of the whip ride.
(Comp. Exh.
12.)
The trailer for the
clown act is located near the center of the western edge of the
park and is across from the bingo area.
(Comp.
Exh.
12.)
The
picnic area is located near the lake.
(Colup.
Exh.
12.)
The
balifield and parking area are located towards Robertson Road.
(Comp.
Exh.
12.)
The Park is used for corporate picnics on weekends during
the sununer months.
(Tr.
at 348.)
Approximately 20 picnics are
held at the Park each year.
(Tr. at 349.)
The average attendance
at a picnic is less than 1,000 people.
(Tr.
at 356.)
The Park
opens at 11:00 a.m. for picnics.
(Tr. at 149.)
When the Park
opens the grills are started.
(Tr. at 149.)
The rides start when
the Park opens and continue to run until about 1:00 p.m.
(Tr. at
151.)
At about 1:00 p.m. the clown show begins and lasts about
an hour.
(Tr. at
152.)
After the clown show,
games and races
(i.e.
foot races and egg toss)
are held for both the children and
the adults.
(Tr.
at 161.)
When the races are finished there may
be
a deejay and the rides would continue.
(Tr. at
162.)
The Park
begins to wind down around 5:00 p.m. and actually closes at 6:00
p.m.
(Tr.
at 165.)
The Park is also used for a day camp.
The day camp operates
4 days per week for
8 weeks,
from the middle of June until the
middle of August.
(Tr. at 357.)
The hours of the day camp are
from 9:00 am.
to 3:00 p.m.
Approximately,
80 to 100 children
1_I
U
L:.L~-uO
16
3
attend the day camp.
(Tr.
at 373.)
The Park employs between 10
and 30 part-time employees.
(Tr. at 382.)
The property was zoned for commercial use when it was
purchased by Mr. Boado
in 1986.
(Tr. at 592.)
However, since
that time the zoning has been changed from commercial to
residential.
(Tr.
at 593.)
At the time Mr. Boado purchased the party, the facility was
involved in litigation with the Village of Lake Zurich concerning
noise complaints.
(Tr. at 560.)
The parties entered
a settlement
agreement from that litigation that required Mr. Boado to make
certain modifications to the Park’s operations and limited sound
emissions to 62 dB(A).
(Resp.
Exh.
3.)
The agreement also
prohibits operation of the Park after 6:00 p.m.
(Resp.
Exh.
3.)
The Dettlaffs were not a party to this settlement agreement but
the action was brought by the Village as a result of the
complaints received from the Dettlaffs.
HEARING
Deborah Dettlaff described several of the noises that are
emitted from the Park.
She testified that people walking on the
pier cause the loose boards of the pier to hit against the metal
framing creating a clunking sound.
(Tr. at 81.)
She further
testified to hearing the cheering and hollering of the crowds
around the dunk tank.
(Tr.
at 75.)
She also hears announcements
made throughout the day, the calling of bingo numbers and the
clown act which are transmitted through the speaker system.
(Tr.
at 87.)
She also testified that she hears the grinding of the
wheels on the whip ride and that the ride rattles and whirs and
shakes.
(Tr. at 106.)
She also testified to being annoyed by the
sound of the children’s screaming voices from the day camp.
(Tr.
at 123.)
She also noted that she hears noises from vehicles,
especially buses and motorcycles,
as people are arriving or
leaving the Park
.
(Tr.
at 148.)
She contends that she is unable to carry on normal daily
activities due to the noise.
(Tr.
at 125.)
She stated that the
noise from the Park can be heard over the telephone.
(Tr.
at
125.)
She notes that she has to close the windows and doors to
her house to escape the noise.
(Tr.
at 125.)
She also contends
that due to the noise she is stressed out,
short tempered, and
nervous.
(Tr. at 154.)
She also can’t sleep at night knowing
that the noise will continue.
(Tr. at 155.)
She further contends
that the noise has placed a strain on her family.
(Tr. at 157.)
Several of the Dettlaffs’ friends also testified to being
disturbed by the noise from the Park while they were guests at
the Dettlaff home.
They stated that the noise sometimes made it
hard to carry on a conversation.
(Tr.
at 35,
54,
226 and 241.)
01 14L-OoI
7
4
They
also
found
some
of
the
noises
to
be
aggravating
or
annoying.
(Tr.
at
225
and
238.)
They noted that the noises from the Park
could
be
heard
inside
the
Dettlaffs’
home.
(Tr.
at
36,
53
and
226.)
They
also
testified
that
the
Dettlaffs
had
complained
about
the
noise
and
that
they
have
noticed
that
Deborah
appears
nervous
and
upset.
(Tr.
at
229
and
244.)
Toni Christensen stayed at the Dettlaffs’ home for ten days
in 1991 while
the
Dettlaffs
were
on
vacation.
(Tr.
at
250.)
She
characterized the sound as a “continual noise punctuated by loud
noises.”
(Tr.
at
256.)
She
testified
that
she
was
irritated
by
the noise and she shut herself up in the house or moved to the
other end of the house.
(Tr. at 255.)
Sheryl Grever
is the sister of Deborah Dettlaff and has
lived
to
the
east
of
the
Dettlaffs
for
the
last
10 years.
(Tr. at
452.)
She is also a one—third owner of the property adjoining
the Park.
.(Tr.
at 451.)
The property has been in the family for
50 years.
(Tr. at 458.)
She testified that due to the noise from
the Park,
she has not used her patio the last two summers.
(Tr.
at 453.)
She has also noticed that Dale and Deborah appear to be
under
tension
due
to
the
noise.
(Tr.
at
458.)
In
July
of
1988
and 1989 she complained to the police about loud noise from the
Park.
(Tr. at 462 and 463,
Resp.
Exh.
8 and 9.)
Olivia Grossi has lived across the street from the entrance
to the Park for 10 years.
(Tr.
at 732.)
She testified that she
hears noises from the traffic,
the PA system and baseball games.
(Tr.
at
735.)
She
finds
these
noises
to
be
annoying
and
the
noise affects her enjoyment of her property.
(Tr.
at 735.)
She
also has noticed smoke from the barbecue around her property.
(Tr. at 738.)
However,
she has never complained about the smoke
or
the
noise
to
Park
personnel
or
to
the
police.
(Tr.
at
740.)
Anthony
Nizdrak
has
lived
directly
across
from
the
driveway
entrance
to
the
Park
for
about
a
year
and
a
half.
(Tr.
at
492.)
He does not find the noise from the Park to be excessive or
annoying
and
is
not
even
aware
of
all
the
activities
in
the
Park.
(Tr. at 493.)
Nancy Stephens has lived across from the ballfield
of the Park for 6 years.
(Tr.
at 501.)
She finds the noise from
the day camp to be a happy noise and does not find
it excessive
or annoying.
(Tr. at 502.)
She also does not find the noise from
the picnics to be excessive or annoying and stated that the noise
doesn’t
interfere
with
her
weekend
activities.
(Tr.
at
503.)
Several officers from the Village of Lake Zurich police
department
testified
concerning
complaints
involving
the
Park
and
the Dettlaffs.
The officers also took sound measurements
pursuant to the settlement agreement from the Dettlaffs’
property.
Exhibit
24
contains
police
reports
relating
to
noise
from the Park.
Some of the reports contain printouts from the
QiL~.L~-OOJ
8
5
sound measurements taken by the police pursuant to the settlement
agreement.
Mr. Boado testified that since purchasing the Park in 1986,
he has made several improvements to the property.
Pursuant to
the settlement agreement, he has removed the bumper car ride and
replaced it with the putt-putt golf area.
(Tr. at 559.)
He has
installed a
7 foot high solid cedar fence between the Park and
the Dettlaffs’ property running about 270 feet.
(Tr.
at 563.)
He
has replaced the speaker system hanging from trees with a
subterranean system.
(Tr. at 559.)
He has asphalted the
driveways and replaced the pier.
(Tr. at 559.)
He sound
insulated the skeetball building.
(Tr. at 562.)
Mr. Boado
eliminated the steel rail that the whip ride traveled on and
replaced the steel wheels with rubber wheels.
(Tr. st 565.)
Mr.
Boado states that the rides are maintained (greased and oiled) to
reduce the noise.
(Tr. at 567.)
As part of the settlement agreement with the Village of Lake
Zurich, Mr. Boado hired a sound consultant.
(Tr.
at 571.)
Mr.
Boado received a letter noting a violation of the settlement
agreement but has received no other notices of violations of the
settlement agreement.
(Tr. at 577.)
DISCUSSION
Respondent argues that the settlement agreement entered
between the Park and the Village of Lake Zurich should control.
The Board finds that the agreement is not controlling in this
matter.
The incidents alleged in the complaint occurred after
the settlement agreement was entered and the Dettlaffs were not a
party to the action that resulted in the settlement agreement.
Further, the Board does not have the authority to enforce the
agreement or find violations of the settlement agreement.
The
settlement agreement does not preclude the Dettlaffs from
bringing this action.
Further, the settlement agreement does not
prohibit the Board from enforcing the provisions of the Act.
Mr.
Boado also alleges that Mr. Dettlaff has engaged in
conduct of
a harassing nature toward Mr.
Boado, his family and
patrons of the Park.
In particular,
Mr. Boado notes that Mr.
Dettlaff waived a chain saw in
a threatening manner,
left a lawn
mower running and photographed activities at the Park.
While the
Board would not condone such actions,
if true, these allegations
are not at issue before the Board.
The complaint alleges that the Park has violated Section
9(a)
of the Act in the emission of smoke from its cooking area.
The complaint also alleges that the respondents have violated
Sections 23 and 24
of the Act with noise generated from the
operation of the Park.
a
I
1.
Lt
-00
1
9
6
With regards to air pollution, Section 9(a)
of the Act
provides:
No person shall cause or allow the discharge or
emission of any contaminant into the environment in any
State so as to cause or tend to cause air pollution in
Illinois, either alone or in combination with
contaminants from other sources, or so as to violate
regulations or standards adopted by the Board under
this Act.
(415 ILCS 5/9
(1992).)
Section 3.02 of the Act defines “Air Pollution” as:
the presence in the atmosphere of one or more
contaminants in 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.
(415 ILCS 5/3.03
(1992).)
Section 23 of the Act describes the finding of the General
Assembly concerning excessive noise and the purpose of the title.
As this section of the Act does not prohibit any activity, the
Board cannot find a violation of this section.
Section 24 of the Act provides that “njo
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
...
.“
Accordingly, the Board’s rules define noise
pollution as “the emission of sound that unreasonably interferes
with the enjoyment of life or lawful business or activity” and
prohibit the emission of such noise pollution beyond the
boundaries of one’s property.
(35 Ill. Adm. Code 900.101 and
900.102.)
Thus, under the Act and Board regulations,
a noise or air
violation has occurred if the complainant has proven that the
complained of noise or air pollution has unreasonably interfered
with the complainant’s enjoyment of life or with his pursuit of
any lawful business or activity.
The Board will first address
the alleged violations relating to air pollution.
The Board finds that the complainants have not established
that the alleged air pollution has unreasonably interfered with
their enjoyment of life or with their pursuit of any lawful
business or activity.
While the evidence shows that smoke is
emitted from the cooking area of the Park, the Dettlaffs have not
01
L~.L~.-OO2O
7
presented adequate evidence of an unreasonable interference due
to the smoke.
Noise enforcement cases previously decided by the Board
include:
Kaji v.
R. Olson Mfg.
Co.,
Inc.
(1981) PCB 80-46,
aff’d,
(1982),
109 Ill. App.
3d 1168,
441 N.E.2d 188;
Citizens
of Burbank v.
Clairirnont Transfer Co.
(1986),
PCB 84-125;
John W.
Eirlich v. John Smith
(1987), PCB 85—4;
Thomas
& Lisa Annino
v.
Browning—Ferris Industries
(1988)
PCB 97—139; Anthony Kochanski
v.
I-Iinsdale Golf Club (1989), PCB 88—16,
rev’d, (1990),
197 Ill.
App.
3d 634, 555 N.E.2d
31;
William Brainerd v. Donna Hagen et
al.
(1989), PCB 88—171; Brian J.
Peter v
Geneva Meat and Fish
Market
(1990), PCB 89-151; Will County Environmental Network v.
Gallagher Asphalt
(1990), PCB 89—64; Kvatsak v.
St. Michael’s
Lutheran Church
(1990), PCB 89-182; Zivoli v. Prospect Dive and
Sport Shop
(1991), PCB 89-205; Village of Matteson v.
World Music
Theatre
(1991 and 1993), PCB 90—146; Christianson v. American
Milling
(1991), PCB 90-59;
Zarlenga v. Bloomingdale Partners
(1991 and 1992), PCB 89—169;
Curtis v. Material Service Corp.
(1993), PCB 91—30.
Section 900.103(b)
of the Board’s noise regulations sets
forth measurement procedures and provides that “a)ll
measurements and all measurement procedures to determine whether
emissions
...
comply with 35
Ill. Adm. Code 901 shall be in
conformity with ANSI
...
and shall, with the exception of
measurements to determine whether emissions
...
comply with 35
Ill. Adm. Code 901.109, be based on Lcq averaging,
as defined in
35 Ill.
Adm. Code 900.101, using a reference time of one hour.”
(See also,
In the Matter of: General Motors Corp.
Proposed
Amendments to 35 Ill.
Adm. Code 900.103 and 901.104
(January 22,
1987), R83-7; Village of Matteson v. World Music Theatre
(September 12,
1991), PCB 90—146.)
The measurements conducted by
the Lake Zurich police department were not conducted in
compliance with the Board regulations.
The measurements are not
based upon L~averaging using a reference time of one hour and
the meter used was not of a type specified by the Board’s
regulations.
The Dettlaffs have not asserted any violations of the
Board’s numerical standards.
Although noise measurements were
introduced as evidence in this case,
it is well—established that
the numerical noise standards set forth in Subtitle H of the
Board’s regulations are independent of, and do not themselves
dictate the outcome of,
a nuisance complaint.
(Illinois Coal
Operators Assoc.
v. PCB, (1974),
59 Il1.2d 305,
319 N.E. 2d 782,
785
; Annino
v. Browning— Ferris Industries of Illinois,
(August
18,
1988), PCB 87-139 at
9; Will County Environmental Network v.
Gallagher Blacktop,
(January 11,
1990), PCB 89—64 at 8.)
The
Board will accept as evidence the noise level test results only
with respect to a finding of an unreasonable interference with
0
i
1~.Lt._OO2
1
8
the enjoyment of life.
(Ka-ji v.
R. Olson Manufacturing Co..
Inc.,
(April 16,
1981)
PCB 80—46,
41 PCB 245
,
aff’d 109 Ill. App.
3d
1168,
441 N.E.
2d 185,
Zivoli v. Somebody’s Bar and Restaurant
(May 21,
1992), PCB 90—200.)
The issue in any noise enforcement proceeding is whether the
noise has unreasonably interfered with the enjoyment of
life and
lawful activity.
If there
is no interference, no “noise
nuisance” violation
is possible.
(Zivoli
v. Prospect Dive and
Sport Shop
(March 14,
1991), PCB 89—205 at 9.)
Interference is
more than an ability to distinguish sounds attributable to a
particular source.
Rather, the sounds must objectively affect
the complainant’s life or business activities.
(u.;
Kvatsak v.
St. Michael’s Lutheran Church
(August 30,
1990), PCB 89—182.)
Sound does not violate the Act or Board regulations unless it
causes unreasonable interference with the enjoyment of life or
lawful business or activity.
The “reasonableness”
of the noise must be determined in
light of the factors set forth in Section 33(c)
of the Act (415
ILCS 5/33(c)
(1992)).
(See Wells Manufacturing Co.
v.
PCB (1978),
383 N.E.2d 148,
150—01; Ferndale Heights Utilities Co.
v.
PCB
(1st Dist.
1976),
358 N.E.2d 1224.)
The relevant factors are:
(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;
(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
...
resulting from such
pollution source;
and
(5)
any subsequent compliance.
(415 ILCS
5/33(c)
(1992).)
Character and Degree of Inury
In assessing the character and degree of the injury or
interference caused by the noise emissions from the Park, the
Board looks to whether the noise substantially and frequently
interferes with the use and enjoyment of life and property,
beyond minor trifling annoyance or discomfort.
(Kvatsak,
PCB 89-
182 at 9.)
Here, the record establishes that noise is emitted
from picnics at the Park on approximately 20 occasions during
weekends throughout the summer.
The hours of the picnics are
between 11:00 a.m. and 6:00 p.m.
While the noise varies
throughout
the
day
and
from
picnic
to
picnic,
the
evidence
shows
that there is continuous noise from a picnic.
The noise includes
crowd noise, noises from rides and attractions and noise
transmitted through the speaker system.
Noise is also emitted on four days of the week for
a
8 week
period from the day camp.
The day camp operates from 9:00 a.m.
01 fL~-0O22
9
to
3:00
p.m.
with
80
to
100
children
in
attendance.
The
noise
from the day camp consist primarily of the voices of the children
and the camp counselors.
From the testimony,
it is evident that there
is constant
noise from the Park while
it is
in operation.
Considering the
periods that the Park is in operation,
the Board finds that there
is
a frequent interference.
Mrs. Dettlaff complained of physical effects due to the
noise.
The record indicates that noise interferes with the
activities of the Dettlaffs.
However,
there is also evidence
that the Dettlaffs are able to use and enjoy their property.
The
evidence shows that the Dettlaffs regularly entertain friends at
their residence and swim in the lake.
Many of the improvements
that the Dettlaffs made to the property were made to increase
their use and enjoyment of the property.
The sound measurements taken by the police department show
that the measurements have consistently remained under the
62dB(A)
level set in the settlement agreement.
(Exh.
24.)
Social or Economic Value
of the Source
The record establishes that the Park has economic and social
value.
The Park employs 10—30 part time employees.
The Park is
used by children during the week as a day camp facility.
On
weekends, up to a 1,000 people visit the Park for company
picnics.
Mr. Boado allows the Village to use the Park for
community events, permits the fire department to practice
emergency ice diving and allows little league teams to use the
ballfield.
Suitability or Unsuitability of the Source,
including the
ciuestion of priority of location
The Park is located in an area that is zoned as residential.
However, the zoning was recently changed and the Park is
considered as a non—conforming use.
At the time that Mr.
Boado
purchased the property it was zoned commercial.
Other than the
zoning, there is nothing in the record to indicate that the Park
is unsuitable for its present location.
It is not clear from the record what the conditions of the
surrounding area were at the time that the Park first commenced
operation over 40 years ago.
However, the record indicates that
the Dettlaffs have resided next to the Park for
17 years and that
Mr. Boado purchased the Park in 1986.
Th~Board finds that the
Park has clear and undisputed priority of location over the
Dettlaffs because the Park was in operation at the time the
Detlaffs began to reside at the property and at the time Mrs.
Detlaff acquired an ownership interest.
Further, there has been
0
L~L.-fl023
10
no
substantial
change
in
the
operation
of
the
Park
in
the
time
that
the
Detlaffs
have
resided
next
to
the
Park
which
would
have
resulted in increased noise emissions.
Also, when the Detlaffs
moved into the property it appears the area was zoned as
commercial.
Mr.
Boado purchased the property after the Detlaffs had
moved to the area but has made no substantial changes in the
operation of the Park that would increase the noise emitted from
the Park.
If anything the changes made were intended to reduce
the noise levels.
The Dettlaffs stated that there has been no
noticeable increase
in the noise from the Park in the time they
have lived there.
(Tr. at 201
&
664.)
There is substantial
testimony from Mr. Trost
(Tr.
at 45.),
Mrs. Detlaff
(Tr. at 201),
and Mr. Boado
(Tr. at 443-447,
567-569), that the noise levels
have decreased since Mr. Boado purchased the property.
At the time that the Detlaffs moved into the area, they were
or should have been aware of the possibility of a nuisance from
the operation of the Park.
The Dettlaffs contend that at the
time they moved into the property, they were not aware of the
noise generated by the Park.
However, Mrs. Dettlaff resided in
Lake Zurich as a child and was aware of the Park’s activities.
Further, at the time that the Dettlaffs moved in,
the property
was owned by Mrs. Dettlaff’s grandmother.
While the Dettlaffs have filed numerous complaints against
the Park with both the Village and Park employees,
they have
continued to reside in the residence for 17 years and have made
substantial improvements to the property.
Technical Practicability and Economic Reasonableness of Control
The focus of inquiry into the technical practicability and
economic reasonableness of control measures is on what can be
done about the allegedly offensive noise.
(Zivoli, PCB 89—205 at
12.)
The
noises
complained
about
by the Dettlaffs are primarily
from three sources: the rides,
the
sound
system
and
the
crowd.
The Dettlaffs request the following relief:
elimination of
the whip ride, elimination of the above—ground speakers and
bullhorns,
elimination of the amplification of the clown act,
relocation of the dunk tank to another area of the Park away from
the Dettlaff property and the addition of sound buffers or
barriers which would not obstruct the Dettlaffs’ view of the
lake.
(Comp.
Br. at 21.)
The Dettlaffs claim that the expense to
accomplish these changes would be minimal but have not provided
any cost estimates.
The Board notes that these recommendations
were not raised at hearing but were presented in the complainants
final brief.
The Dettlaffs had requested similar forms of relief
in the initial complaint.
OiL.L~-OO2L~
11
Respondent
claims
that
the
removal
of
the
whip
ride
would
be
a
life-threatening
blow
to
the
Park.
The
respondent
claims
that
this
ride
is
for
small
children
and
makes
visits
to
the
Park
by
families a pleasurable experience.
The
respondent
asserts
that
this
would
jeopardize
the
economic
viability
of
the
Park.
The
respondent also
asserts
that
in
relocating
attractions
they
must
consider the overall layout of the Park,
crowd control and other
factors.
Mr. Boado also contends that the settlement agreement
prohibits him from making any changes to the Park without
approval by the Village.
While the Board does not find any language in the settlement
agreement that prohibits changes to the Park,
it is not clear
from the record if the Park’s non—conformance status with the
zoning ordinance limits changes to the Park’s operation.
It would appear to be impossible to totally eliminate the
noise emissions without ordering that the facility be closed.
The Board further notes that pursuant to the settlement agreement
with Lake Zurich, Mr.
Boado has taken certain measures to reduce
the noise from the Park.
While the Dettlaffs have requested the Board to require the
installation of sound barriers,
it has provided no indication of
the type of sound barriers, the location of the sound barriers,
the effects of the sound barriers or costs for sound barriers.
Without this type of information the Board cannot determine the
feasibility of installing sound barriers.
The Dettlaffs have also suggested the removal and relocation
of some of the attractions, elimination of above—ground speakers
and elimination of the amplification of the clown act.
Yet, they
have not presented evidence on the effects on the operation of
the Park or the emission of noise from the Park.
The Board also
notes that the relocation of an attraction may only result in the
noise being directed at another neighboring property.
The record
contains inadequate information for the Board to order the
removal or relocation of any of the attractions.
Further,
the
Dettlaffs have not presented any evidence to support that the
removal of certain rides will substantially alleviate the noise
emissions.
In addition, the Dettlaffs have not provided a
timetable for the completion of the requested changes.
Mr Boado has already spent between $100,000 and $200,000 to
improve the Park, approximately half of it was spent on sound
control.
(Tr. at 568.)
Subsequent Compliance
Mr. Boado has made several modifications to the Park since
he purchased it in 1986.
Some of these changes were in response
to the settlement agreement between the Village of Lake Zurich
01 ~~-0025
12
and
the
Park.
Mr.
Boado
testified
that
the
rides
are
maintained
to minimize the noise.
Conclusion on Unreasonable Interference
Historically,
the
common
law
courts
have
provided
relief
to
private
litigants
where
someone’s
use
of
the
land
unreasonably
interferes
with
another’s
use
and
enjoyment
of
property.
Much of
this
private
nuisance
tort
theory
is
embodied
in
the
“unreasonable
interference”
language
of
the
Act.
At
least
since
the 17th century,
the common law courts have recognized an
exception
to
the
nuisance
theory
may
be
made
where
the
complaining party has moved to the location where the nuisance
already exists.1
The Environmental Protection Act’s recitation
of “priority of location” in Section 33(c)(3), parallels the
“coming to the nuisance” concept.
Indeed most of the Section
33(c)
factors reflect common law nuisance theory exceptions or
interpretations.
The doctrine of “coming to the nuisance” is well
established2 and could be considered to bar the granting of
relief to the damaged party.
(David Curie, Pollution (l975).)~
In the “coming to the nuisance” cases, the courts have held that
the residential landowner who has been damaged may not have
relief if he knowingly came into a neighborhood reserved for
industrial or agricultural endeavors.
(Spur Industries Inc.
v.
Del E. Webb Development Co.
(1972),
108 Ariz.
178,
494 P.2d 700.)
Courts are concerned with protecting the operator of a lawfully,
albeit noxious, business from the result of a knowing and willful
encroachment by others near his business along with protecting
the interests of the public.
(u.)
The Board finds that the above analysis is applicable to the
matter before the Board.
The Board notes the above principles
apply to common nuisance matters raised in a court of equity,
while the matter before the Board is an action brought pursuant
to statutory rights established by the Act.
However, the Board
2 W. Blakstone,
“Commentaries on the Laws of England”
(17th
Ed.
1830,
402—3)
2
“Coming to the Nuisance: nor shall private property be taken
without...”,
John D.
Ingram,
5 Northern Illinois University Law
Review
Spring
85,
p.
181-200;
“First
come,
first
served:
an
economic analysis of “coming to the nuisance”, Donald Wittman,
9
Journal
of Legal Studies,
June 1980 p.
557—568;
42 ALR 3d 344;
8
ALR
2d 419 §3.
~
The Board notes that David Curie was instrumental
in the
writing of the Environmental Protection Act.
01 ~4~O026
13
finds
that
these
provisions
of
the
Act
are
analogous
to
a
nuisance
action
and
that
the
same
type
of
analysis
should
be
applied
in
weighing
the
factors
in
Section
33(c)
of
the
Act.
Priority
of
location
does
not
achieve
the
level
of
an
absolute
defense
(City
of
Mominouth
v.
IPCB
(1974),
57
Ill.2d
482,
485,
313
N.E.2d
161)
but
it
is
to
be
considered
with
the
other
factors.
Our Supreme Court has stated that when complainants
move
to
the
nuisance,
they
“were
on
notice
of
the
possibility
that
some
of
the
annoyances
present
could
affect
them,
and
this
fact
considerably
diminishes
the
potency
of
their
complaints.”
Wells
Manufacturing
Co.
v.
Pollution
Control
Board,
73
Ill.
2d
226,
383
N.E.2d.
148
(Ill.
1978).
The
Board
finds
that
the
consideration
of
the
priority
of
location
is
significant
in
this
matter.
The
Dettlaffs
should
have
been
aware
of
the
possibility
of
noise
from
the
Park
when
they
moved
into
the
area.
A
further
influencing factor is that the property was zoned for commercial
activity
at
the
time
they
moved
into
the
property.
There
has
been
no
increase
in
the
level
of
noise
emitted
from
the
Park
in
the 17 years they have resided next to the Park.
If anything the
noise
has
decreased
due
to
the
modifications
made
to
the
Park
as
a result of the settlement agreement.
The Dettlaffs have made
substantial improvements to their property despite the presence
of noise from the Park.
Mr.
Boado
has
made
substantial
and
expensive
modifications
to
the
operations
of
the
Park
including
the
removal
of
two
rides
in response to the noise complaints.
From the record it is not
clear that additional modifications are economically reasonable
or technically feasible.
While there are further modifications
that
can
be
made
to
reduce
the
noise,
it
is
not
evident
what
effect
these
modifications
may
have
on
the operation of the Park
or
the
noise
level.
The Board is
also
influenced
by
the
fact
that
at
least
two
adjacent
neighbors
of
the
park
do
not
find
the
noise
excessive.
(Tr.
at 492—493, 501—503.)
The
Board
finds
that,
based
upon
the
facts
of
this
case
in
light
of
the
Section
33(c)
factors,
the
Park’s
operations
do
not
constitute an unreasonable interference with complainants’
enjoyment of life and lawful activity.
Therefore, the Board
holds that respondent has not violated Section 24 of the Act.
The foregoing constitutes the Board’s findings of fact and
conclusions
of
law
in
this
matter.
ORDER
Based
on
an
evaluation
of
the
evidence
and
the
factors
enumerated
in
Section
33(c)
of
the
Environmental
Protection
Act,
0
L~.L~.-0027
14
the Board finds that neither Eduardo P.
Boado nor EPB Park
Services,
Inc.
have
violated
Sections
9,
23
or
24
of
the
Act.
This matter is dismissed.
IT
IS
SO
ORDERED.
J.
Theodore
Meyer
concurred.
Section
41
of
the
Environmental
Protection
Act
(415
ILCS
5/41 (1992))
provides for appeal of final orders of the Board
within 35 days.
The Rules of the Supreme Court of Illinois
establish filing requirements.
(See also 35 Ill. Adm. Code
101.246, Motion for Reconsideration.)
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify ~thatthe above opini
an~
order was
adopted on the
~
day
of________________________
1993, by a vote of
7—()
.
//
Dorothy
N.
Gi,u~i, Clerk
Illinois Pol
tion Control Board
0
L. ~
-0028
