1245
1 BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
2 ANTHONY and KAREN ROTI, )
PAUL ROSENSTROCK and )
3 LESLIE WEBER, )
)
4 Complainants, )
)
5 vs. ) No. PCB 99-019
) VOLUME VI
6 LTD COMMODITIES, )
)
7 Respondent. )
8 The following is the transcript of a hearing
9 held in the above-entitled matter taken
10 stenographically by DEBORAH T. BRAUER, CSR, a notary
11 public within and for the County of Lake and State of
12 Illinois, before JOHN KNITTLE, Hearing Officer, at 118
13 West Cook Avenue, Libertyville, Illinois, on the 23rd
14 day of May, 2000, A.D., commencing at 9:35 a.m.
15
16
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18
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20
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23
24
L.A. REPORTING (312) 419-9292
1246
1
PRESENT:
2
STEVEN P. KAISER & ASSOCIATES
3 BY: MR. STEVEN P. KAISER
4711 Golf Road
4 Suite 708
Skokie, Illinois 60076
5 (847) 677-7066
6 Appeared on behalf of the
Complainants;
7
BAIZER & KOLAR
8 BY: MR. JOSEPH E. KOLAR
513 Central Avenue
9 5th Floor
Highland Park, Illinois 60035
10 (847) 433-6677
11 Appeared on behalf of the
Respondent.
12
13 ALSO PRESENT:
14 Mr. Michael Hara
Ms. Leslie Weber
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24
L.A. REPORTING (312) 419-9292
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1
I N D E X
2
THE WITNESS: KEVIN BYRNES
3 PAGE
4 Direct Examination 1256
by Mr. Kolar
5
Cross Examination 1301
6 by Mr. Kaiser
7 Redirect Examination 1332
by Mr. Kolar
8
Recross Examination 1342
9 by Mr. Kaiser
10
THE WITNESS: MARCIA ROWLEY
11
Direct Examination 1347
12 by Mr. Kolar
13 Cross Examination 1363
by Mr. Kaiser
14
Redirect Examination 1374
15 by Mr. Kolar
16 Recross Examination 1378
by Mr. Kaiser
17
18 THE WITNESS: ALLEN L. KRACOWER
19 Direct Examination 1381
by Mr. Kolar
20
Cross Examination 1422
21 by Mr. Kaiser
22 Redirect Examination 1466
by Mr. Kolar
23
Recross Examination 1473
24 by Mr. Kaiser
L.A. REPORTING (312) 419-9292
1248
1
I N D E X (CONTINUED)
2
E X H I B I T S
3
PAGE
4 COMPLAINANTS' EXHIBIT NO. REFERRED TO ADM IN EVD
5 1 1438
2 1438
6 23 1251
60 1459
7 61 1459
62 1459
8 63 1459
64 1459
9 65 1251
66 1459 1475
10
11 PAGE
RESPONDENT'S EXHIBIT NO. REFERRED TO ADM IN EVD
12
1 1254
13 2 1255
3 1255
14 4 1267
8 1349
15 9 1349
34 1407
16 39 1420 1421
88 1400
17 90 1402
100 1410
18
19
20
21
22
23
24
L.A. REPORTING (312) 419-9292
1249
1 HEARING OFFICER KNITTLE: Good morning. My name
2 is John Knittle. I'm a hearing officer with the
3 Illinois Pollution Control Board. I'm also the
4 assigned Hearing Officer for this matter which is PCB
5 Docket No. 1999-019, Anthony and Karen Roti, Paul
6 Rosenstrock and Leslie Weber versus LTD Commodities.
7 This is the second go-around of hearings.
8 The first set of hearings were held November 1st
9 through November 5th in 1999. This hearing was noticed
10 up pursuant to the Illinois Environmental Protection
11 Act and the Board of Regulations. It is approximately
12 9:35 a.m.
13 I do not think there are any members of the
14 public.
15 Sir, are you here to testify?
16 MR. BYRNES: Yes, I am.
17 HEARING OFFICER KNITTLE: Okay. There are no
18 members of the public present, and I think that's all I
19 have.
20 As in the last hearing, this hearing will be
21 run pursuant to the Board's Rules under Section 103201
22 and 202, I think. Let me take a look.
23 (Pause in proceedings.)
24 HEARING OFFICER KNITTLE: 103202 and 203, my
L.A. REPORTING (312) 419-9292
1250
1 apologies. And we'll be conducting it in that manner.
2 Correct me if I'm wrong but we're still proceeding with
3 complainants' case in chief?
4 MR. KAISER: Yes, that's where we left it when we
5 adjourned back in November. And at this point the
6 respondents rest.
7 HEARING OFFICER KNITTLE: The complainants?
8 MR. KAISER: The complainants rest.
9 HEARING OFFICER KNITTLE: We don't want to rest
10 Mr. Kolar quite yet.
11 All right. The complainants rest.
12 Have you offered all your exhibits, Mr.
13 Kaiser?
14 MR. KAISER: I believe we have. I just had a
15 chance to look over the Hearing Officer's notes and the
16 exhibits, and I believe we have offered every exhibit.
17 And virtually every exhibit offered has been admitted.
18 HEARING OFFICER KNITTLE: I think so. I see there
19 were a couple. One was reserved and that is C-23.
20 MR. KAISER: Let's take a look at that.
21 HEARING OFFICER KNITTLE: That's the only one I
22 really want to address. The rest have either been
23 admitted or denied.
24 MR. KAISER: C-23. A letter from Schomer &
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1251
1 Associates to Thomas Thunder dated February 27, 1998.
2 HEARING OFFICER KNITTLE: Correct.
3 And, for whatever reason, in my disposition
4 column of the exhibit list I have "reserved."
5 MR. KAISER: This was a letter which I believe was
6 referenced extensively in Dr. Schomer's deposition
7 transcript which was Exhibit C-65. I would ask you,
8 Mr. Knittle, to review your notes and see whether C-65
9 has been offered and admitted.
10 HEARING OFFICER KNITTLE: C-65 is offered and
11 admitted.
12 MR. KAISER: And I would suggest that C-23 be
13 admitted at this point.
14 MR. KOLAR: I think the reason we reserved this is
15 because Mr. Thunder is testifying in my case, in fact
16 tomorrow, and I had a problem with this just being
17 admitted without him because of the reference in
18 Paragraph 1 where Mr. Schomer implies that Mr. Thunder
19 agrees it should be a Class B use and in fact he does
20 not.
21 HEARING OFFICER KNITTLE: Mr. Kaiser, is that your
22 recollection? You want to wait until we hear Thunder's
23 testimony?
24 And, Mr. Kolar, would you allow Mr. Kaiser to
L.A. REPORTING (312) 419-9292
1252
1 offer it at that point?
2 MR. KOLAR: Sure.
3 HEARING OFFICER KNITTLE: Even those his case is
4 closed?
5 MR. KOLAR: Sure.
6 HEARING OFFICER KNITTLE: Is that okay with Mr.
7 Kaiser?
8 MR. KAISER: That's fine.
9 HEARING OFFICER KNITTLE: Let's do that then.
10 Mr. Kolar, you mentioned you had a
11 preliminary matter you wanted to address before we got
12 rolling?
13 MR. KOLAR: Right.
14 And just one thing for the record, Mr. Hara
15 is here as well this morning.
16 HEARING OFFICER KNITTLE: Correct.
17 MR. KOLAR: I don't recall if I heard that. Maybe
18 you said that.
19 HEARING OFFICER KNITTLE: I did not, you are
20 correct. I do note Mr. Hara from LTD Commodities is
21 present here today.
22 MR. KOLAR: And the complainants are not here.
23 HEARING OFFICER KNITTLE: I also note that there
24 are no complainants present at this point in time.
L.A. REPORTING (312) 419-9292
1253
1 MR. KOLAR: One thing I wanted to do is I thought
2 it would help for the record at the start of our case I
3 have -- the complainants each answered basic
4 interrogatories, which are marked as Respondent's 1, 2
5 and 3. I just wanted to read, as admissions into the
6 record, at one spot what the complainants have stated
7 regarding when they acquired their property because now
8 we have a very lengthy record with that information
9 throughout the proceedings.
10 HEARING OFFICER KNITTLE: You want to let Mr.
11 Kaiser take a gander?
12 MR. KOLAR: Interrogatory 4 for each of the
13 complainants. And I would just read verbatim their
14 answer. Do you have a problem with that?
15 MR. KAISER: I mean, I think it's a little
16 unusual. All three of those individuals were called
17 here, were sworn and testified at some length under
18 oath. And if there was any issue about when they moved
19 into their house, I think that was better addressed
20 through direct testimony.
21 MR. KOLAR: Well, it's my case. They have made
22 admissions in interrogatory answers, and, as I recall,
23 they all didn't have the best of memories as to when
24 exactly they moved into their homes or purchased their
L.A. REPORTING (312) 419-9292
1254
1 homes. It's a pretty simple matter. It's a crucial
2 issue with the case regarding priority of location I
3 think is what it says under Section 33 factors.
4 HEARING OFFICER KNITTLE: You'd want to read these
5 in as acknowledging that they're hearsay statements but
6 the fact that they're admissions from the opposite
7 party?
8 MR. KOLAR: Right. And I think admission is not
9 hearsay. Admission of a party by definition is not
10 hearsay.
11 MR. KAISER: I withdraw my objection. I mean, I
12 assisted in the preparation of those. Those are clear
13 statements as to when they moved in. It will benefit
14 the Board to have unequivocal statements about when
15 they moved in. And so I withdraw my objection.
16 HEARING OFFICER KNITTLE: Okay. Let's do it.
17 MR. KOLAR: Okay. First, Respondent's Exhibit 1,
18 the Rotis, Mr. Roti moved in in August 1990.
19 Next, Paul Rosenstrock. He entered into a
20 contract to purchase the land and house in the fall of
21 1987. He closed on the purchase in the summer of 1988.
22 Leslie Weber. July 6, 1988 purchased the
23 vacant land. January 1992 assumed occupancy of home.
24 HEARING OFFICER KNITTLE: Mr. Kolar, those are
L.A. REPORTING (312) 419-9292
1255
1 your Respondent's Exhibits 1, 2 and 3. Are you
2 planning on offering those at a later time?
3 MR. KOLAR: I'm not sure yet.
4 HEARING OFFICER KNITTLE: Can you just identify
5 then for the record when the interrogatories were
6 proffered and responded to?
7 MR. KOLAR: Sure.
8 Respondent's Exhibit 1, the Roti interroagory
9 answers signed by Karen Roti December 21, 1998.
10 Paul Rosenstrock signed his interrogatory
11 answers December 17, 1998. And his is Respondent's
12 Exhibit 2.
13 Respondent's 3, Leslie Weber signed hers also
14 on December 17, 1998.
15 HEARING OFFICER KNITTLE: Thank you.
16 MR. KOLAR: Then respondent would call the first
17 witness, appraiser Kevin Byrnes.
18 HEARING OFFICER KNITTLE: Mr. Byrnes, can you have
19 a seat and the court reporter will swear you in.
20 (Witness sworn.)
21 HEARING OFFICER KNITTLE: Mr. Kolar.
22 KEVIN BYRNES,
23 called as a witness herein, having been first duly
24 sworn, was examined and testified as follows:
L.A. REPORTING (312) 419-9292
1256
1 DIRECT EXAMINATION
2 BY MR. KOLAR:
3 Q. Could you state your name for the court
4 reporter, please?
5 A. Kevin Byrnes, B-y-r-n-e-s?
6 Q. And what do you do for a living?
7 A. I'm a real estate appraiser and consultant.
8 Q. Where do you live?
9 A. In Elmhurst, Illinois.
10 Q. Who do you work for?
11 A. William A. McCann & Associates.
12 Q. Where is that business located?
13 A. That's located at 414 North Orleans in
14 Chicago.
15 Q. How long have you worked at McCann &
16 Associates?
17 A. Approximately five years.
18 Q. How long has McCann been in business if you
19 know?
20 MR. KAISER: Objection, relevance.
21 HEARING OFFICER KNITTLE: Mr. Kolar.
22 MR. KOLAR: No response.
23 HEARING OFFICER KNITTLE: Overruled.
24 THE WITNESS: Mr. McCann has been independently in
L.A. REPORTING (312) 419-9292
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1 business under his own name since 1962.
2 BY MR. KOLAR:
3 Q. Can you tell the Pollution Control Board what
4 you do for William A. McCann & Associates?
5 A. I'm an appraiser on the staff, principal
6 associate partially responsible for day-to-day
7 management of the firm, as well as performing appraisal
8 projects.
9 Q. How many appraisers are there on the staff?
10 A. There is approximately 10 at the moment.
11 Q. And for the five years that you have been
12 there can you name some representative clients of the
13 firm that would have no objection with you giving their
14 names?
15 MR. KAISER: Objection. Representative clients of
16 the firm doesn't tell the Board anything about Mr.
17 Byrnes' qualifications. I wouldn't object to
18 representative clients that Mr. Byrnes has done work
19 for. To try to buff up his credentials by reference to
20 what the firm has done I think is inappropriate.
21 MR. KOLAR: I'll withdraw the question.
22 BY MR. KOLAR:
23 Q. You were hired by LTD Commodities regarding
24 this noise hearing?
L.A. REPORTING (312) 419-9292
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1 A. Yes, I was.
2 Q. And you're being paid?
3 A. Yes.
4 Q. What's your rate?
5 A. We're billing LTD at my hourly rate, which is
6 $175 per hour.
7 Q. And is that a standard rate for private
8 clients?
9 A. Yes, that's what we charge generally.
10 Q. In the five years prior to coming to McCann
11 what did you do for a living?
12 A. I was a commercial appraiser for a company
13 called Real Estate Analysis Corporation located in
14 downtown Chicago.
15 Q. And what type of properties did you appraise
16 working for that company?
17 A. A variety of commercial and residential
18 properties.
19 Q. How long were you there?
20 A. For five years.
21 Q. What did you do before working at Real Estate
22 Analysis Corporation?
23 A. I was a real estate salesperson in the
24 southwest suburbs of Chicago.
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1 Q. If I understand the law correctly, a
2 salesperson works under a broker's license?
3 A. That's right.
4 Q. What business did you work for?
5 A. At the time the sponsoring broker's name was
6 Regina Mundell, and the franchise was ERA Reggie &
7 Associates on Cicero Avenue.
8 Q. So as a salesperson you had some sort of
9 license from the State of Illinois?
10 A. Yes, I had a salesperson's license.
11 Q. How long did you -- can we call that -- was
12 that when you were a realtor or is that not a proper
13 term?
14 A. Well, I was a dues paying member of the
15 National Association of Realtors. And "realtor" is a
16 trademark name. And if you're a member of the
17 Association of Realtors, you can call yourself a
18 realtor. So the answer is yes.
19 Q. All right. How long were you in this
20 business as a salesperson/realtor?
21 A. Approximately five years before going to Real
22 Estate Analysis Corporation, although I continued to
23 hold my real estate license after that.
24 Q. As of today?
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1 A. Currently it's not active. I haven't really
2 used it.
3 Q. That was just a voluntary decision on your
4 part because you were in a new line of business?
5 A. Yes.
6 MR. KAISER: Objection, leading.
7 HEARING OFFICER KNITTLE: Mr. Kolar, you want to
8 rephrase.
9 BY MR. KOLAR:
10 Q. Why don't you have your license active
11 anymore?
12 A. Because I'm not engaged in the sale of
13 single-family homes. My business is completely taken
14 up as a real estate appraiser/consultant.
15 Q. When you were a salesperson what type of
16 properties did you list?
17 A. Either vacant lots for development or
18 improved single-family homes, also attached
19 single-family homes, condos and townhouses.
20 Q. What is your education after high school?
21 A. After high school I attended University of
22 Notre Dame and received a Bachelor of arts degree. And
23 then I attended the University of Chicago and received
24 a Master of arts degree. Following that I have also
L.A. REPORTING (312) 419-9292
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1 taken education courses related to the real estate
2 field, which were required both for my real estate
3 salesperson license and for my state general
4 certification license from the Office of Banks and Real
5 Estate.
6 Q. What did you have to do to obtain your
7 salesperson license when you did that in terms of
8 courses?
9 A. That was basically to take a course which I
10 believe met nightly. That was quite a while ago, but
11 my recollection serves it met nightly for eight to ten
12 weeks, and there was an exam. When you passed the
13 exam, then you were qualified to sit for the State's
14 exam for a salesperson.
15 Q. And then you took the State's exam?
16 A. Yes.
17 Q. And passed it?
18 A. Yes.
19 Q. And in terms of education as a real estate
20 appraiser can you explain to the Board the courses you
21 took in that regard?
22 A. Well, the requirements of the State of
23 Illinois to become a State General Certified Appraiser,
24 which is my current designation with the State, at the
L.A. REPORTING (312) 419-9292
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1 time that I was so qualified, were, I believe, 165
2 hours of courses and 2,000 hours of appraisal
3 experience submitted in a log and also passing an
4 examination. And I submitted all those requirements
5 and was accepted.
6 Q. So then you have been in the business as a
7 real estate appraiser as of today for how many years?
8 A. Approximately ten years.
9 Q. Now, there is a designation in the appraisal
10 business known as MAI for Member Appraisal Institute,
11 correct?
12 A. That's right.
13 Q. Do you have that?
14 A. No, I don't.
15 Q. Are you doing anything to obtain that?
16 A. Yes. I'm in the last -- close to the final
17 stages of finishing the requirements of the Appraisal
18 Institute to apply for that designation.
19 Q. Have you had any experience in Lake County
20 regarding appraising homes?
21 A. Yes, I have.
22 Q. Can you explain to the Pollution Control
23 Board the areas in Lake County where you have had
24 experience appraising homes?
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1 A. I have appraised homes in Lake Bluff, in
2 Highland Park, in Barrington and South Barrington. The
3 homes were either single-family detached homes singly
4 or, in one case, the entire Wynstone subdivision, which
5 included a large number of single-family homes.
6 Q. And that's in the Barrington area?
7 A. Right, off of Route 12.
8 Q. Is that a golf course community?
9 A. Yes.
10 Q. About how many homes were involved there?
11 A. I believe there were about 100 homes.
12 Q. And for what purpose did you appraise those
13 homes?
14 A. The Homeowner's Association was embarking on
15 a collective property tax appeal, and, therefore, I had
16 to appraise all the homes in the community.
17 Q. Do you have any non-residential appraisal
18 experience in Lake County?
19 A. Yes.
20 Q. Can you explain that to the Board?
21 A. In the last ten years I have appraised
22 various industrial properties, office properties, and
23 vacant land in areas again such as Lake Bluff. I'm
24 currently working on an appraisal for the City of Lake
L.A. REPORTING (312) 419-9292
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1 Forest on Western Avenue of some vacant land. I have
2 also appraised property in the Waukegan area, in
3 Libertyville, and throughout the general Lake County
4 area.
5 Q. How about experience outside of Lake County
6 in terms of residential and non-residential?
7 A. I have appraised residential properties
8 including both single-family homes, attached
9 condominium type homes, and large garden apartment or
10 elevator apartment buildings throughout the six county
11 area over the last ten years. That would include Cook
12 County and all the surrounding collar counties.
13 Q. What states have you worked in as an
14 appraiser?
15 A. Well, they're listed on my professional
16 biography, which I believe you have a copy of. But,
17 among others, obviously the State of Illinois. I have
18 appraised property in Missouri, Ohio, Florida, Texas,
19 New York State, Tennessee recently. In about ten
20 different states.
21 Q. As an appraiser have you testified before any
22 courts or administrative agencies?
23 A. Yes.
24 Q. Where have you testified in terms of court
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1 experience?
2 A. I have testified before the Circuit Court of
3 Cook County and the Bankruptcy Court of the Northern
4 District of Illinois.
5 Q. In terms of administrative agencies where
6 have you testified, what boards?
7 A. Illinois Property Tax Appeal Board, various
8 Boards of Review around the State, City of Chicago
9 Zoning Boards of Appeals, the Cook County and Du Page
10 County Zoning Boards of Appeals.
11 Q. And when you say various Boards of Review
12 around the State, these are the county boards that
13 initially hear and assess valuation complaints from
14 property owners?
15 A. Yes, once those property owners have reached
16 what they think is a satisfactory result from the
17 township assessor, they can then pursue their appeal
18 with the Local Board of Review at the county level.
19 Q. And then the level after that is what?
20 A. The Property Tax Appeal Board.
21 Q. And have you testified before that Board?
22 A. Yes.
23 Q. The Property Tax Appeal Board, that's an
24 Illinois statewide --
L.A. REPORTING (312) 419-9292
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1 A. Yes.
2 Q. -- Board, correct?
3 A. That's right.
4 Q. Do you have any knowledge of LTD Commodities
5 before work on this project?
6 A. Yes.
7 Q. And how did you have familiarity with LTD
8 before this project?
9 A. Before this project I was actually hired by
10 LTD to appraise its property in relation to an assessed
11 value question.
12 Q. Okay. And as part of that project did you
13 familiarize yourself with the area?
14 A. Yes, I did.
15 Q. In terms of again the LTD appraisal project
16 what did you do in terms of familiarizing yourself with
17 the area?
18 A. Well, at the time I did what I --
19 MR. KAISER: Can we get a time frame on that just
20 for foundation?
21 HEARING OFFICER KNITTLE: Mr. Kolar.
22 BY MR. KOLAR:
23 Q. Do you recall when that was?
24 A. That would have been -- I believe we were
L.A. REPORTING (312) 419-9292
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1 first hired in 1996 and worked through the early part
2 of 1998 prior to the resolution of that matter.
3 Q. And in terms of familiarizing yourself with
4 the area what did you do in terms of the appraisal
5 project?
6 A. Well, in addition to inspecting the property
7 itself, I did what I always do when I'm appraising a
8 property which is to look at what the surrounding uses
9 are. I didn't investigate the area to the north, which
10 is part of the subject case right now, as intensively
11 as I have for this assignment. But I was aware that
12 there were single-family homes immediately to the north
13 of LTD at that time, as well as commercial office
14 buildings to the east, and commercial uses to the
15 south, and the Tri-State to the west.
16 Q. And is LTD your client in this case?
17 A. Yes.
18 Q. Respondent's Exhibit 4 is a copy of the
19 Pollution Control Board complaint. Have you seen this
20 before?
21 A. Yes, I have.
22 Q. And Paragraph 8, did you read this at some
23 point?
24 A. Yes.
L.A. REPORTING (312) 419-9292
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1 Q. In Paragraph 8 did you read the allegation by
2 the complainants that LTD "depresses the value of the
3 complainants' properties"?
4 A. Yes, I did.
5 Q. Did LTD or I guess myself on behalf of LTD
6 request you to do anything in regard to that
7 allegation?
8 A. Yes.
9 Q. Okay. Have you formed opinions relative to
10 that allegation?
11 A. Yes, I have.
12 Q. Before we get to that, what, if anything, did
13 you do to investigate or do background work before
14 forming your opinions?
15 A. Well, initially, after receiving the
16 assignment, I reviewed any of the documentation that we
17 were sent, which in the early course I believe was a
18 copy of the Pollution Control Board complaint. And
19 then, towards the end of March and beginning of April
20 of 1999, I received copies of deposition transcripts
21 for each of the complainants plus two real estate
22 brokers and also one of the complainant's husband's,
23 which was Henry Weber. And so I read those.
24 I also investigated the area, through
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1 physical inspections, on a number of occasions. Of
2 course, I immediately inspected the area after being
3 retained and then also went to the local township
4 Assessor's Offices, reviewed plats of survey and the
5 plats of the subdivision. I went on the MLS to see
6 what homes were selling for in the area.
7 Q. What's MLS?
8 A. That the Multiple Listing Service of Northern
9 Illinois which is a computer-related service where you
10 can call up properties which have either been sold or
11 listed or currently listed and expired, what they sold
12 for, who the brokers were, and that sort of
13 information.
14 Q. In terms of inspecting the area, can you be
15 more specific where did you go, walk, drive?
16 A. Well, on my first inspection I believe I
17 exited the Tri-State and drove east to Telegraph Road
18 and then north on Telegraph and then eventually made my
19 way along Arbor Lane and down to Wedgewood Drive which
20 is where the three complainants' homes were located.
21 And at that point Wedgewood Drive is parallel to -- it
22 runs east and west. It's parallel to the south
23 property lines of the complainants' properties. So I
24 drove through there and noted what kinds of
L.A. REPORTING (312) 419-9292
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1 improvements were on the lots. I had tax plat maps and
2 subdivision maps in hand both from the Wedgewood Drive
3 side and also the LTD parking lot side. I looked to
4 see where those property lines were and how the land
5 was actually improved.
6 In the LTD case there was a surface parking
7 lot leading up to a short grassy area and then some
8 shrubbery and trees and then fences for the backs of
9 the lots of the complainants.
10 And then on the subdivision side, obviously I
11 saw a number of single-family homes which I was aware
12 were built generally from the late '80s into the early
13 1990s.
14 Q. And in terms of -- you mentioned improvements
15 on the lots, you're talking about the homes on the
16 complainants' lots?
17 A. That's right.
18 Q. For this particular project did you go on the
19 LTD property?
20 A. Yes.
21 Q. Did you look at Lake Forest more generally as
22 part of this assignment?
23 A. Yes. I drove through areas north of Old Mill
24 Road, which is an east-west road which more or less
L.A. REPORTING (312) 419-9292
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1 defines the northern terminus of the immediate
2 residential market area for the complainants'
3 properties. I also drove up and down Telegraph Road
4 and then east of Telegraph Road, in other words, more
5 or less an area that would be described as Central Lake
6 Forest. And then east all the way to the Market Square
7 area on Western. And finally over towards the lake
8 front just to generally be acquainted with the range of
9 housing types and the prices that were paid for houses
10 based on the MLS information throughout that whole
11 geographical area.
12 Q. Did you, through document review or
13 otherwise, investigate when the complainants purchased
14 their homes and when the LTD operations were built,
15 expanded, etc.?
16 A. Yes.
17 Q. Why did you do that?
18 A. Well, part of the question at hand is, as I
19 understand it, that there was an additional level of
20 operations causing noise and light problems as
21 specified in Item A of the complaint. And I knew from
22 my appraisal of LTD that the property originally was
23 built in the late 1970s, I believe 1977. And it was
24 expanded in 1986 and '87 to provide what is the current
L.A. REPORTING (312) 419-9292
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1 truck dock configuration. And then the warehouse
2 operation was physically expanded in 1995 on the side
3 of the LTD property away from the complainants' houses.
4 And part of what I considered was whether there were
5 any depreciative influences on market value when the
6 complainants first moved into their homes.
7 Q. And you heard me read into the record the
8 information regarding when the complainants acquired
9 their properties?
10 A. Yes.
11 Q. And that's consistent with what you learned
12 as well?
13 A. Yes, that's right.
14 Q. I know I cut you off, but anything else that
15 you -- before we get to your opinions, anything else
16 that you did investigative wise, preparation work that
17 we haven't discussed?
18 A. That's generally it. I mentioned the MLS,
19 the assessor's records, the depositions of the
20 complainants, the deposition of the two brokers who
21 have listed the Rotis' house, physical inspection of
22 the area, and observation of the layout of the area and
23 how it correlated to some of the things that were
24 testified to in those depositions that I had reviewed.
L.A. REPORTING (312) 419-9292
1273
1 Q. You read those depositions?
2 A. Yes.
3 Q. And you reviewed assessor records?
4 A. Yes.
5 Q. Now, depositions, are those things that you
6 typically rely upon in your profession in forming
7 opinions relative to real estate valuation issues?
8 A. Yes.
9 Q. And the assessor documents, can you be more
10 specific? What does the assessor have that you look at
11 in this case?
12 A. The assessor has property record cards for
13 each established lot. And in the case of the subject
14 subdivision each established subdivision lot
15 corresponds to a property index number, which then can
16 be identified in the assessor's records. And I was
17 able to see when the subdivision was first platted,
18 what the initial assessed values were, as well as what
19 the assessed values were when I did my investigation.
20 Q. And do assessors have tax maps?
21 A. Yes.
22 Q. Did you look at tax maps as well?
23 A. Yes, I did.
24 Q. Do tax maps have the permanent index numbers
L.A. REPORTING (312) 419-9292
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1 on them?
2 A. That's right.
3 Q. And do you as an appraiser typically rely
4 upon property record cards in forming your opinions as
5 an appraiser?
6 A. That's one of the sources that we use, yes.
7 Q. People in your profession do that on a
8 regular basis?
9 A. Yes.
10 Q. Do you typically rely upon tax maps in
11 forming your opinions as an appraiser?
12 A. Yes, that's one of the ways that we can
13 identify where properties are located.
14 Q. The MLS service that you explained, is this a
15 computer service?
16 A. Yes, it is. In the last ten years the MLS
17 services in the Northeast Illinois area pretty much
18 banded together from a loose association of groups that
19 put out either -- some were putting out books, some had
20 on -- not on-line but computer services. And I believe
21 for the last seven or eight years there has been a
22 group called the Multiple Listing Service of Northern
23 Illinois which you can access through on-line
24 interfaces. And you can call up multiple listing
L.A. REPORTING (312) 419-9292
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1 records for practically any property in Northeast
2 Illinois.
3 Q. How do you access that service, do you access
4 it at home, at the office?
5 A. I do it at home and at my office.
6 Q. Does MLS have listings and sales or just
7 listings?
8 A. They have listings. They have sales. They
9 have records of property that were listed but the
10 contracts expired. They have listings of properties
11 which are under contract or which are under contract
12 subject to a contingency. There is six or seven
13 different categories of properties as they're listed on
14 the MLS service.
15 Q. And that service, is that something that you
16 and appraisers typically rely upon in forming opinions
17 regarding property valuation?
18 A. Yes.
19 Q. In this case did you form an opinion whether
20 LTD's operations, specifically noise, depresses the
21 value of complainants' properties?
22 A. Yes, I did.
23 Q. And what is that opinion?
24 A. Well, in my opinion, and this is taking into
L.A. REPORTING (312) 419-9292
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1 consideration the scope of work, which was not only the
2 allegation in the complaint but in reading the
3 complainants' depositions and in moving through this
4 case, understanding that the focus is the reported
5 increase in operations from some time in 1996 and
6 continuing through the dates of the complainants'
7 depositions, in other words, a change from a
8 one-shift-a-day to a two-shift-a-day operation. And so
9 my opinion was specifically focused on the effect of
10 that change in operations. And, in my opinion, by
11 going from one-shift-a-day to two-shift-a-day
12 operations the LTD operations did not have any impact
13 to add depreciation on the value of the complainants'
14 homes.
15 Q. Did you form an opinion as to whether these
16 particular lots were priced at a value before the
17 complainants purchased their homes to take into
18 consideration their location?
19 A. Yes.
20 Q. What's your opinion in that regard?
21 A. Well, in forming my opinion I found that
22 there are a number of factors that preexist the
23 addition of a second --
24 MR. KAISER: Excuse me, I'm going to interpose an
L.A. REPORTING (312) 419-9292
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1 objection. I don't know that this opinion has been
2 disclosed.
3 HEARING OFFICER KNITTLE: Mr. Kolar.
4 MR. KOLAR: It has been disclosed. Besides his
5 deposition that Mr. Kaiser took the opinion disclosed
6 is, LTD's operation has not depreciated the value of
7 complainants' homes since trucking docks existed on the
8 site before the homes were built. Any depreciation in
9 the value of complainants' property occurred before
10 they bought their lands and homes.
11 So I think this opinion is certainly
12 consistent with the second sentence. I guess I
13 basically just want him to explain his opinion here.
14 HEARING OFFICER KNITTLE: Mr. Kaiser.
15 MR. KAISER: I mean, if we begin with the opinion
16 that was disclosed in response to respondent's
17 interrogatories, I'm more comfortable using that as a
18 starting point. It sounds as if Mr. Byrnes has begun
19 to shape and taylor his opinion as the litigation is
20 unfolding and has tried to form his opinion to more
21 fully meet LTD's perceived litigation needs, which have
22 changed over the last nine months. So I think if he
23 begins with the opinion he originally gave us, and so
24 we can see the evolution of his opinion so the board
L.A. REPORTING (312) 419-9292
1278
1 can take that evolution into consideration, I'd be more
2 comfortable with that.
3 MR. KOLAR: I'll restate the question here. I'll
4 make it more specific.
5 BY MR. KOLAR:
6 Q. Do you have an opinion whether there was any
7 depreciation in the value of the three complainants'
8 properties before they bought their land and homes?
9 A. Yes.
10 Q. And what is that opinion?
11 A. That there was depreciation to the value of
12 those properties.
13 Q. What's the basis for that opinion, that there
14 was existing depreciation before they came in and
15 purchased the lots?
16 A. Well, there were several factors at work
17 there. And hopefully as I explain this, this may or it
18 may not clarify for Mr. Kaiser my opinion, but the
19 factors at work here are location -- it's essentially
20 the location but there are several elements of location
21 at work here. One is that the three complainants'
22 properties are all immediately adjacent to a commercial
23 industrial district in Bannockburn. That commercial
24 industrial district preexisted the subjects'
L.A. REPORTING (312) 419-9292
1279
1 subdivision. Now, part of the reason for this arising
2 historically, and it was just a matter that I noted and
3 considered, is that there are two different
4 municipalities here. The LTD property comes up to the
5 north end of the Bannockburn corporate border. North
6 of that is Lake Forest. If you go to the south along
7 the east side of the Tri-State, you see there is -- and
8 extending beyond the map, which is in front of us as an
9 exhibit --
10 Q. Exhibit 89 for the record.
11 A. -- there is a band of commercial industrial
12 type developments extending far to the south. Now,
13 when you go north of LTD, you have got a residential
14 subdivision. And I just note that historically you
15 have had a commercial industrial development in LTD and
16 the Corporate 100, then the subdivision was built. Now
17 the three properties that are fronting on that --
18 MR. KAISER: I'm going to object with respect to
19 lack of foundation with respect to Corporate 100 unless
20 he wants to lay a foundation as to when that was built.
21 I move to strike his testimony with respect to
22 Corporate 100.
23 HEARING OFFICER KNITTLE: Mr. Kolar.
24 MR. KOLAR: I'll ask him a question in that
L.A. REPORTING (312) 419-9292
1280
1 regard.
2 BY MR. KOLAR:
3 Q. What's the basis for -- strike that.
4 Exhibit 89 --
5 A. Yes.
6 Q. -- you have seen this before, correct?
7 A. Yes.
8 Q. And it shows the LTD facility, right?
9 A. Yes.
10 Q. And your understanding, based on working for
11 LTD, is that this box that says 1986, that's the FMC
12 building?
13 A. Yes.
14 Q. And your understanding is that was there
15 since when?
16 A. Approximately 1977.
17 Q. And then the '87 box, that means what to you
18 as an appraiser with a familiarity of this building?
19 A. That was in addition to the original
20 building.
21 Q. 1995, that's what?
22 A. That's a further addition to the south of the
23 same subject property building.
24 Q. When you said "Corporate 100" was that -- do
L.A. REPORTING (312) 419-9292
1281
1 you see where we wrote "C100" on this map?
2 A. Yes.
3 Q. What do you understand that building to be?
4 A. That's an office building.
5 Q. And is that what you referred to as
6 "Corporate 100"?
7 A. Yes.
8 Q. Now, do you know when Corporate 100 was
9 built?
10 A. No, I don't.
11 Q. Do you know when Corporate 100 was built
12 relative to the subdivision to the north?
13 A. Well, I can tell you that in the depositions
14 of the complainants --
15 MR. KAISER: Objection, asked and answered. He
16 doesn't know when it was built.
17 HEARING OFFICER KNITTLE: I think it's a different
18 question.
19 Correct, Mr. Kolar?
20 MR. KOLAR: Right. The second question was, "What
21 do you know about Corporate 100 versus the subdivision
22 to the north in terms of priority?"
23 HEARING OFFICER KNITTLE: I'll let him attempt to
24 answer that question.
L.A. REPORTING (312) 419-9292
1282
1 THE WITNESS: Thank you.
2 Based on complainants' depositions, they
3 stated that one of the factors they were aware of, when
4 they were buying their lots or their homes, was the
5 existence of the Corporate 100 building, which they
6 didn't always identify as Corporate 100 but they
7 identified it as a commercial office building, which
8 means that regardless of when it was built it certainly
9 preexisted the complainants coming to their properties.
10 MR. KAISER: I'm going to move to strike. I don't
11 think that satisfies the foundational requirement
12 unless he can tell me which complainant's deposition
13 he's recalling and who made that observation. I don't
14 think it holds uniformly to complainants plural, it may
15 apply to one but not all of the complainants.
16 HEARING OFFICER KNITTLE: Mr. Kolar.
17 MR. KOLAR: I think it's a big waste of time to go
18 through deposition transcripts. I think the record
19 will speak for itself regarding the complainants'
20 knowledge of commercial to the south. If you want to
21 make it one or more of the complainants, that's fine,
22 we would stipulate that one or more of the complainants
23 had knowledge of the office building to the south when
24 they purchased their lots.
L.A. REPORTING (312) 419-9292
1283
1 HEARING OFFICER KNITTLE: Mr. Kaiser, does that
2 alleviate your objection and motion to strike?
3 MR. KAISER: Yes. I allow it to be qualified to
4 that extent.
5 BY MR. KOLAR:
6 Q. Unless you can tell us as you sit there.
7 A. I can tell you as I sit here that Henry
8 Weber, who is not one of the complainants, but he's
9 married to Leslie Weber who's one of the complainants
10 jointly with her purchased their lot in 1988. And when
11 they were discussing the fact -- as was stated in the
12 depositions, one of the factors that he considered was
13 there was a commercial office building to the south of
14 their property. And in some respects he thought that
15 that was -- there were certain pluses because it would
16 be a quiet neighbor but then certain negatives because
17 you're located next to an office building.
18 However, my foundation for stating that the
19 Corporate 100 preexisted any of the complainants coming
20 to their properties is at the very least Mr. Weber
21 saying that they bought their lot in 1988 and he knew
22 that the office building was there.
23 Q. Anyway, I think you were giving us the basis
24 for your opinion that three complainants' lots had
L.A. REPORTING (312) 419-9292
1284
1 experienced depreciation before they even purchased
2 their lots, do you recall where you were in that
3 regard?
4 A. Yes.
5 Q. Okay.
6 A. There were several factors that already
7 preexisted the complainants purchasing their lots or,
8 in the case of the Rotis, they bought the house already
9 built. The Tri-State was there. LTD was already
10 there. Corporate 100 was already there.
11 Another factor is the fixed character of
12 their location in the far southwest corner of Lake
13 Forest has a negative impact on the value of these
14 properties compared to what they would have if they
15 were in central or eastern Lake Forest. That's a
16 preexisting factor that can't be changed. All those
17 factors were there prior to the reported 1996 and later
18 addition of the second shift operation at LTD. And, in
19 my opinion, all those factors contributed substantial
20 depreciation already to the complainants' homes.
21 Q. In terms of setting the value of the lots
22 before the complainants purchased them?
23 A. Yes or in the case of the Rotis' property,
24 their home when they bought it in 1990.
L.A. REPORTING (312) 419-9292
1285
1 Q. Based on what you told us, this '95 expansion
2 came after each of the complainants were living to the
3 north?
4 A. Yes.
5 Q. And what's the basis for your opinion that
6 you don't believe the '95 expansion has depressed the
7 value of their homes?
8 A. Well, maybe the best way to do this is
9 explain how I looked at this. And if you say -- the
10 positive hypothesis I was testing was, was there
11 depreciation caused by what they're alleging in their
12 complaint which is that in -- some time in 1996 there
13 was an increase in operations and that the noise and
14 light from LTD causes depreciation.
15 Now, in looking at the three complainants'
16 depositions, Karen Roti said -- when she was asked if
17 there was a depreciative effect, she said that she
18 thought there was because no one would want to live
19 next to a 24 hour operation. So she was very clear in
20 thinking that, yes, there was a clear depreciative
21 effect, not only I assume since 1990, but she
22 specifically referenced a 24 hour operation. In other
23 words, what I understood was a two-shift operation not
24 a three-shift operation, but, in any event, a growth in
L.A. REPORTING (312) 419-9292
1286
1 the operations of LTD is what she was referencing.
2 Now, I next looked at --
3 Q. Let me ask you a question.
4 A. Yes.
5 Q. Do you have any knowledge that LTD is a 24
6 hour operation?
7 A. Well, I can tell you I have never spent 24
8 hours at the LTD property. However, I spoke with Jack
9 Voigt, who's employed with LTD, and specifically asked
10 him, "Has there ever been a 24 hour operation at LTD?"
11 And he told me there was not, there was a second shift
12 that went from -- that was added that went from 3:30 to
13 12:30, and that at certain points in the late '90s,
14 during the period under question, they did incur some
15 overtime which would take them to 1 or 1:30 in the
16 morning. That's what was represented to me. And that
17 then the addition of a warehouse in Aurora took some of
18 the pressure off that overtime.
19 Q. So what did that mean to you relative to
20 Karen Roti's comment that nobody would want to live by
21 a 24 hour operation?
22 A. Well, I understand that Mrs. Roti is not a --
23 say a litigation expert or I understand where she's
24 coming from so to speak. On the other hand, if she
L.A. REPORTING (312) 419-9292
1287
1 really was trying to base her argument on the fact that
2 there were 24 hours of operations, then to some extent
3 you have to discount her opinion because it was not a
4 24 hour operation. However, I will grant that in her
5 opinion she thought there was a depreciative value
6 based on increased operations. The way she put it was
7 24 hour, maybe she was saying that for emphasis or
8 maybe she really thought there were 24 hours of
9 operations, but that's not what I understand.
10 Q. And then the other bases for your opinion
11 that you don't believe the '95 expansion has depressed
12 the value of their land?
13 A. Well, as I was saying --
14 MR. KAISER: Excuse me. Just by way of
15 clarification, '95 expansion, are you talking about
16 strictly the physical expansion of the warehouse to the
17 south in 1995 or are you talking about the increase in
18 truck traffic on the dock area located at the northern
19 end of the building?
20 MR. KOLAR: Well, I object to his objection. I
21 don't know if that accurately states the facts in the
22 record, but I assume he's going to explain to us the
23 basis for his opinion and whether it's the warehouse
24 itself or any alleged increase in truck traffic. So I
L.A. REPORTING (312) 419-9292
1288
1 think it's premature. I think he was getting to that.
2 HEARING OFFICER KNITTLE: Mr. Kaiser.
3 MR. KAISER: Well, let's see where he goes.
4 THE WITNESS: Okay.
5 MR. KAISER: I just want to note for the record
6 there is some ambiguity to the question.
7 HEARING OFFICER KNITTLE: I take it, Mr. Kaiser,
8 you're concerned that the Board is going to be confused
9 about the '95 expansion to the south of LTD and the
10 alleged --
11 MR. KAISER: Right. If you confuse the '95
12 expansion -- if you confuse a physical expansion of the
13 warehouse facility with an increase in truck traffic --
14 I mean, he's about to tell us the 1995 expansion didn't
15 have any impact. And if you're reading the records and
16 you're not certain that he's talking about just an
17 increase in the square footage of the warehouse and not
18 the increase in truck traffic, I think you could be
19 confused about his opinion.
20 HEARING OFFICER KNITTLE: Okay. I'm going to
21 overrule it. I think you can address that on cross
22 examination.
23 MR. KAISER: All right. Thank you.
24
L.A. REPORTING (312) 419-9292
1289
1 BY MR. KOLAR:
2 Q. Mr. Byrnes, you have been to the LTD property
3 how many times since that expansion to the south was
4 completed?
5 A. Well, I was there several times when I was
6 appraising the property. I was there four times, I
7 believe, before Mr. Kaiser took my deposition last
8 July. And I have gone by there probably three or four
9 times, maybe more, since then. In some cases if I was
10 doing appraisal work in the area I would just go by to
11 see if anything had changed.
12 Q. So as part your work for this particular
13 noise hearing have you observed LTD's trucking
14 operations since the building was expanded in 1995?
15 A. Yes.
16 Q. Can you continue on explaining the basis for
17 your opinion regarding that?
18 A. I suppose I can clarify at this point, just
19 to make life easier for everybody, that what I was
20 talking about, even back in my deposition and what I
21 would represent today, is that I'm talking about the
22 effect of not only the physical construction of the
23 1995 addition but the increased level of operations
24 because, as I think I said, Mr. Voigt did tell me that
L.A. REPORTING (312) 419-9292
1290
1 there was a second shift added. So I do understand
2 that there was an addition to the level of activities.
3 And that's part of the basis of my opinion.
4 All right. So I was going through the
5 complainants' depositions particularly with what they
6 said about the question of whether there has been
7 depreciation on their properties. Okay. Karen Roti is
8 pretty clear that she thinks there was. Now, Leslie
9 Weber, when she was asked that question -- she was
10 asked in her deposition, "Now, do you believe that the
11 value of your house and lot have in any way been
12 depreciated by LTD's operations?" And her answer was,
13 "No." That was the sum total of her answer. So from
14 Leslie Weber's answer, you would think that she didn't
15 think there was -- that there had ever been any
16 depreciation, let alone from the recent increase in
17 operations, which is a contradiction to what Karen
18 Roti's opinion seems to be.
19 Then the third complainant Paul Rosenstrock
20 was asked, "Do you believe that your house is worth
21 more than $550,000 today?" And his deposition was
22 taken in March of 1999. And his answer was, "I hope
23 so." In other words, he hopes that it is worth more.
24 Q. What was the relevance of the $550,000
L.A. REPORTING (312) 419-9292
1291
1 number?
2 A. The $550,000 is the amount that Mr.
3 Rosenstrock paid for the lot and house which was built
4 for him as a build-to-suit.
5 And then as a follow-up question he was asked
6 whether his house has depreciated due to the influence
7 of LTD's operations. And his answer was, "I don't
8 know."
9 So in looking at what complainants had to
10 say, as a first level of seeing what the opinions would
11 be, Karen Roti says "Yes;" Leslie Weber says, "No;" and
12 Paul Rosenstrock says, "I don't know." So there
13 doesn't seem to be a consensus among the complainants,
14 at least in their deposition records, as to whether
15 there is any depreciative influence due to LTD's
16 operations.
17 Now, why would I be interested in what they
18 have to say? Well, the reason is that depreciation --
19 Q. Why would you be interested in -- let me ask
20 you a question.
21 Why would you be interested in what the
22 complainants had to say about this issue?
23 A. I'm sorry, I wasn't try to play the
24 attorney's role.
L.A. REPORTING (312) 419-9292
1292
1 MR. KAISER: Objection, narrative I think would be
2 appropriate at this point.
3 HEARING OFFICER KNITTLE: But we have corrected
4 that, correct?
5 MR. KAISER: yes.
6 HEARING OFFICER KNITTLE: You can proceed, sir.
7 THE WITNESS: The complainants are owners of their
8 properties and therefore they are part of the potential
9 market for their properties. And that's relevant
10 because the question of depreciation has to be examined
11 in the context of market value. Market value is
12 developed by what buyers and sellers think and perceive
13 to be the influences on value.
14 BY MR. KOLAR:
15 Q. So besides the deposition testimony of the
16 complainants, what other bases for your opinion
17 relative to the '95 expansion and any activity because
18 of that depresses the value of the complainants'
19 properties?
20 A. I also took into account the statements in
21 their depositions of Marcia Rowley and Karen Dickey.
22 Q. And who are they?
23 A. They are real estate brokers who successively
24 listed the Rotis' house for sale in 1996 and 1997.
L.A. REPORTING (312) 419-9292
1293
1 Q. What, if anything, did you rely upon in that
2 regard?
3 A. I noted that each of the brokers showed the
4 homes many times. I believe Marcia Rowley showed the
5 house -- I shouldn't say that she personally showed it,
6 but while it was listed with her she testified that
7 there were about 60 showings. Karen Dickey, while the
8 property was listed with her, testified that there were
9 30 to 40 showings. And neither of these brokers had an
10 offer on the property.
11 Now, when asked about various factors that
12 were negative factors for the Roti house, which was the
13 house they listed, not one of them cited noise
14 specifically from LTD. They did have some very
15 specific and in some cases reiterated opinions on what
16 the true factors were that caused depreciation to the
17 Rotis' property. Namely, the location in the sort of
18 peripheral or far southwestern part of Lake Forest as
19 well as simply the physical --
20 MR. KAISER: I'm going to object at this point
21 unless he's going to site particular portions of Ms.
22 Rowley and Ms. Dickey's deposition transcripts. I know
23 we're going to have Ms. Rowley testify, but his summary
24 without reference to the actual transcript, I think is
L.A. REPORTING (312) 419-9292
1294
1 too unreliable.
2 MR. KOLAR: I don't think he's required to do
3 that. He's an opinion witness. He said that these are
4 things he typically relies upon. Maybe he can do that.
5 BY MR. KOLAR:
6 Q. Can you do that? Can you give us, Mr.
7 Byrnes, the pages from the transcript that you're
8 referring to?
9 A. If you're willing to wait while I find the
10 references.
11 HEARING OFFICER KNITTLE: Mr. Kaiser.
12 MR. KAISER: We'll wait if the Board will.
13 BY MR. KOLAR:
14 Q. What transcript are we talking about?
15 A. This is Marcia Rowley's deposition taken
16 March 19, 1999.
17 HEARING OFFICER KNITTLE: Let's go off the record
18 for a second.
19 (Discussion off the record.)
20 BY MR. KOLAR:
21 Q. Mr. Byrnes, did you find in Marcia Rowley's
22 transcript the page where she indicates the drawbacks
23 relative to the Roti property?
24 A. Yes.
L.A. REPORTING (312) 419-9292
1295
1 Q. What page is that?
2 A. Page 28.
3 Q. Is that the page that you were relying upon
4 for your earlier comment of drawbacks?
5 A. Well, it's certainly one of the pages. I
6 read her entire deposition. She makes several, but I
7 can read you what she said, the question and the
8 answer.
9 Q. This is something you relied upon?
10 A. Yes. Now, the uestion was, "What were the
11 drawbacks to the Roti home?" The answer was, "The
12 drawbacks were that the yard, in that there was more
13 side yard than backyard, so people felt it was less of
14 a functional backyard because most of the yard was to
15 the side. And the house wasn't placed in the center of
16 the property. The fact that it was very far west,
17 southwestern corner of Lake Forest, and the noise, and
18 the commercial development. Those four things."
19 Q. And that and other references in the
20 transcript, what relevance did that have to your
21 opinion that the '95 expansion and trucking activity
22 did not depress the value of the complainants'
23 properties?
24 A. Well, I also took into account in answering
L.A. REPORTING (312) 419-9292
1296
1 your question Page 37 where she was asked this
2 question, "And I take it, just so I'm clear, as you sit
3 here today you're not able to distinguish between noise
4 that would come from the office building to the south,
5 noise that might be coming from the LTD facility or
6 noise that's coming from the tollway?" Marcia Rowley's
7 answer was, "Correct."
8 Q. For the record that was a question by Mr.
9 Kaiser.
10 So those two passages, how do those provide
11 the bases for your opinion that the '95 expansion and
12 truck activity from that expansion did not depress the
13 Roti property value and the other complainants'
14 properties?
15 A. Because Marcia Rowley cited a number of
16 factors that she thought were important, such as we
17 just heard: The location within Lake Forest, the
18 proximity to commercial development, the particular
19 configuration of the way the house is cited on the lot,
20 the short backyard. But she wasn't able to
21 specifically point to noise from LTD as a factor that
22 she could distinguish from the tollway noise or any
23 other noise in the area.
24 Q. In your experience, as a realtor and an
L.A. REPORTING (312) 419-9292
1297
1 appraiser, do people look at homes at 12:30 in the
2 morning?
3 A. No.
4 Q. Does that have any impact on your opinion as
5 to the LTD operations?
6 A. Yes.
7 Q. How is that?
8 A. Well, one of the factors involved here is,
9 again, as the two realtors testified in their
10 depositions, there were anywhere from 90 to 100
11 showings of this property. Now, neither Karen Roti nor
12 the brokers told the buyers that there was a noise
13 problem or that they felt there was a noise problem
14 from LTD. So if the buyers are looking at the
15 properties at the traditional times of day, some of
16 them will look at the property during weekdays during
17 the day, some when they get home from work which may be
18 late afternoon, early evening, maybe right after
19 dinner, others will look at properties that they might
20 be wanting to buy on Saturdays or Sundays but they're
21 not going to be looking at properties late in the
22 evening, 10:30, 11:30, 12:30 at night. So for the
23 alleged factors -- even if we said, for the sake of
24 argument, that the hypothesis was true, that these late
L.A. REPORTING (312) 419-9292
1298
1 night operations did cause some additional depreciative
2 effect, there is no way that the prospective buyers
3 going to the Roti property would have known about it
4 because it wasn't disclosed by the brokers or by the
5 Rotis. And unless they went by late at night, they
6 being the potential buyers, to see this, they wouldn't
7 know about any alleged unpleasant noise at night. And
8 if they don't know about it, it can't be a factor in
9 their purchase decision. If it's not a factor in their
10 opinion of the price or value, then it can't have a
11 depreciative effect because depreciation again is
12 dependent on the perceptions of buyers and sellers.
13 And as we -- again, as I said, there was no such
14 perception on the part of the prospective buyers.
15 Q. In your experience as a realtor and an
16 appraiser when people come to look at any of the three
17 complainants' properties and they see the tollway, they
18 see the LTD and office to the south, making a decision
19 whether to buy is a black and white decision that
20 either I don't mind living by that or I do or do they
21 go to degrees like as long as it's not noisy at night I
22 can live there, what's your experience in that regard?
23 MR. KAISER: Objection, calls for speculation.
24 HEARING OFFICER KNITTLE: Overruled.
L.A. REPORTING (312) 419-9292
1299
1 THE WITNESS: The factors that were mentioned by,
2 for example, Marcia Rowley and also by Karen Dickey,
3 which were the proximity -- the physical proximity to
4 commercial industrial development, in my experience as
5 a realtor, formerly, and in my appraisal of properties,
6 you're going to find buyers are going to either want to
7 live -- they'll be willing to live next to a major
8 400,000 square foot warehouse distribution center or
9 they won't. And you're not going to find people, in my
10 opinion, basing their decision on is there or isn't
11 there a second shift at this 26 truck dock 400,000 foot
12 distribution warehouse. They're going to base their
13 decision on there is a distribution warehouse south of
14 my property line, do we want to live here? What's the
15 effect going to be on potential resale? That's a
16 subject the Webers discussed when they first bought
17 their lot, which predated the 1995 expansion.
18 So, to summarize the answer to your question,
19 in my opinion either buyers are going to say that
20 living next to a distribution warehouse does not bother
21 them or it does. And the question of whether there is
22 a second shift or not is not going to add further
23 depreciation to all the depreciative factors that I do
24 recognize already were inherent in that location.
L.A. REPORTING (312) 419-9292
1300
1 BY MR. KOLAR:
2 Q. And I guess just to sort of summarize, then
3 I'll be done, the depreciative factors that you
4 mentioned, the tollway, LTD and the office building,
5 you acknowledge that those at some point did have an
6 impact on setting the value for these -- what became
7 the Roti, Rosenstrock and Webers' lots, right?
8 A. Yes.
9 Q. It's just that that happened when the
10 subdivision was first platted and the market is setting
11 the value for the complainants' lots versus lots to the
12 north in the subdivision?
13 A. Yes.
14 Q. I don't know, do I have any other questions?
15 I think we covered your -- have we covered the bases
16 for your opinions? Anything that we missed that you
17 feel is important for the Pollution Control Board to
18 know?
19 A. There were a few other ancillary or
20 supportive factors. And, again, I apologize to the
21 Board, these are based on things I read in the
22 complainants' depositions. If required, I can find the
23 references precisely, but one major factor, that was
24 cited by several of the complainants, was a piece of
L.A. REPORTING (312) 419-9292
1301
1 equipment called a yard pig, which was -- I believe Mr.
2 Rosenstrock even said that was the worst offender as
3 far as noise was concerned. And they also admitted
4 that they knew, they being the complainants, they knew
5 that LTD in 1998 had gotten a new yard pig to haul the
6 trailers around and that it was quieter. So that's a
7 subsidiary consideration that I have taken into account
8 that if one of the major alleged sources of extra noise
9 is now quieter, then all the less likely that this 1995
10 expansion of building and operations has had a
11 depreciative effect on the complainants' properties.
12 Q. Okay. Anything else or is that it?
13 A. No.
14 MR. KOLAR: I don't have any further questions.
15 MR. KAISER: Cross.
16 HEARING OFFICER KNITTLE: Mr. Kaiser.
17 CROSS EXAMINATION
18 BY MR. KAISER:
19 Q. Mr. Byrnes, have you read any of the
20 transcripts from the first part of this hearing which
21 was conducted in early November 1999?
22 A. No, I haven't.
23 Q. You have not then read the testimony of Henry
24 or Leslie Weber in this case?
L.A. REPORTING (312) 419-9292
1302
1 A. No.
2 Q. You have not read --
3 MR. KOLAR: Objection, I think there was a motion
4 to basically exclude witnesses, so I think it would
5 have been improper for him to read the transcript.
6 That that would have been, I think, tantamount to
7 violating the motion to exclude witnesses.
8 MR. KAISER: I think if there had been any kind of
9 motion made for Mr. Byrnes to be allowed to update his
10 information by reference to the transcript in this
11 hearing, it would have been allowed by the Hearing
12 Officer. I think that's an argument without merit.
13 HEARING OFFICER KNITTLE: I'm going to allow the
14 question to stand but with both caveats noted.
15 BY MR. KAISER:
16 Q. And I take it then you didn't review Karen
17 Roti's testimony during the course of this hearing?
18 A. No.
19 Q. Nor that of Mr. Rosenstrock?
20 A. That's correct.
21 Q. And so this impact of the yard pig being
22 quieted in 1998, you don't know what affect that had on
23 noise levels at LTD and in the vicinity of LTD during
24 the fall of 1999, do you?
L.A. REPORTING (312) 419-9292
1303
1 A. No.
2 Q. Now, as I understood your argument towards
3 the end here, it's essentially that there is a certain
4 class of buyers who will go out to the south end of the
5 subdivision, see Corporate 100, see LTD's dock area,
6 see the tollway, and decide they either can live near
7 those uses or they can't, is that your opinion?
8 A. I would say that -- yes, as a generalization
9 that's my opinion.
10 Q. And that those who can live next to those
11 uses will not be disturbed by LTD's now extended hours
12 of operation, is that right?
13 A. No, I think the record shows that they are
14 disturbed by it.
15 Q. I see. So you're making the distinction --
16 and this is important. You're not saying that LTD may
17 not be a nuisance, right?
18 A. I'm not here to testify as to whether it's a
19 nuisance or not.
20 Q. That's right. You're solely here to tell the
21 Board whether you think LTD's operations and the noise
22 from LTD depreciates the value of the Roti, Rosenstrock
23 and Weber homes, correct?
24 A. That's right.
L.A. REPORTING (312) 419-9292
1304
1 Q. And you have no opinion to offer the Board as
2 to whether LTD is currently or in the past has been a
3 nuisance as defined by the Illinois Environmental
4 Protection Act, correct?
5 A. That's correct.
6 Q. Now, in fact -- and you're familiar with this
7 aerial photograph, aren't you?
8 A. Yes.
9 Q. You have seen this many times, haven't you?
10 A. No.
11 Q. Well, you saw it today, right?
12 A. Yes, I saw it yesterday.
13 Q. All right. When you were with Mr. Kolar
14 preparing for your testimony, right?
15 A. That's right.
16 Q. And how many hours did you spend with Mr.
17 Kolar?
18 A. About 45 minutes.
19 Q. And you see that this is marked -- here is
20 the Weber house, Mr. Rosenstrock's house and the Roti
21 residence, you recognize those in relation to LTD,
22 don't you?
23 A. Yes.
24 Q. And you told us that the Webers purchased
L.A. REPORTING (312) 419-9292
1305
1 their land in 1988, did you not?
2 A. I believe that's correct, yes.
3 Q. And you told us that you reviewed Henry
4 Weber's deposition, right?
5 A. Yes.
6 Q. And you recall the portions of Mr. Weber's
7 deposition where he acknowledged that to the south
8 there was the Corporate 100 office building, right?
9 A. Yes.
10 Q. And he saw that LTD had a warehouse operation
11 to the southwest, correct?
12 A. Yes.
13 Q. And Mr. Weber at that time was a person who
14 found he could live next to Corporate 100, LTD and the
15 tollway as it existed and as it was in operation in
16 1988, correct?
17 A. Yes.
18 Q. Did you ever ask Mr. Weber whether he would
19 buy the property now, now that LTD operates five months
20 a year for 20 hours a day?
21 MR. KOLAR: Objection, misstates the testimony in
22 the record.
23 HEARING OFFICER KNITTLE: Mr. Kaiser.
24
L.A. REPORTING (312) 419-9292
1306
1 BY MR. KAISER:
2 Q. It's a simple question. Did you ever in
3 part, in preparation of your opinion, ask Mr. Weber
4 whether he would buy his property today?
5 MR. KOLAR: Objection, it's an unfair question.
6 Since he's represented by counsel, I don't think my
7 opinion witness or LTD's opinion witness could ask Mr.
8 Weber that question.
9 MR. KAISER: He certainly by agreement could have
10 asked that question. His counsel could have asked that
11 question in the course of the deposition. He's telling
12 us that people who once they make the jump and can buy
13 next to these uses will be happy with that, they can
14 accommodate those uses to the south.
15 HEARING OFFICER KNITTLE: Hold on, Mr. Kaiser.
16 I'm going to sustain the objection as to a
17 mischaracterization of testimony, but then you asked it
18 a second time which I did not think mischaracterized
19 the testimony. If you want to ask that question, that
20 will be allowed.
21 MR. KAISER: Just so we know what question is
22 acceptable, maybe the court reporter could read that
23 back.
24 HEARING OFFICER KNITTLE: Go ahead.
L.A. REPORTING (312) 419-9292
1307
1 MR. KOLAR: My objection was he could not ask that
2 question to Mr. Weber because he's represented by
3 counsel. And that would be like me discussing an issue
4 with a person represented by counsel.
5 He's LTD's retained opinion witness. I don't
6 think the rules permit him to call on Mr. Weber and
7 say, "I know you're represented by Steve Kaiser but I'd
8 like to talk to you on the side here."
9 MR. KAISER: I would have allowed Mr. Kolar to
10 call me and say, "Mr. Byrnes feels it important to know
11 whether Mr. Weber and Ms. Weber, whether Mr.
12 Rosenstrock, whether the Rotis would still pay the
13 price they paid for their property in light of the
14 changed circumstances to the south."
15 HEARING OFFICER KNITTLE: I'm going to overrule
16 the objection and allow the question to stand. I'm not
17 making a ruling one way or the other whether that's a
18 proper question or whether that could have been asked
19 under the Board's procedural rules. But if you want to
20 ask that question, you can go ahead.
21 BY MR. KAISER:
22 Q. Did you ever ask Mr. Kolar to contact me so
23 that you could get information whether Henry and Leslie
24 Weber would still purchase their property?
L.A. REPORTING (312) 419-9292
1308
1 A. No.
2 Q. And did you ever ask Mr. Kolar to try to talk
3 with me so that you can inquire of Mr. Rosenstrock
4 whether he would still purchase his property?
5 A. No.
6 Q. And did you ever ask Mr. Kolar to contact me
7 so that he could ask the Rotis whether they would still
8 today buy their property?
9 A. No.
10 Q. Now, it was your testimony, in light of your
11 experience as a real estate salesperson here in the
12 State of Illinois, that people don't typically go look
13 at houses they're interested in buying at 12:30 a.m.,
14 was that your testimony?
15 A. Yes.
16 Q. But those same people who may buy those
17 houses live in their houses at 12:30 a.m., do they not?
18 A. Yes.
19 Q. And it was your testimony that the market
20 doesn't take into consideration LTD's increased dock
21 operations because potential purchasers don't know
22 about the increase, that was your testimony, wasn't it?
23 A. Yes, that's one of the bases of my opinion.
24 Q. Which way had real estate prices in southwest
L.A. REPORTING (312) 419-9292
1309
1 Lake Forest been trending over the last three years?
2 A. Over the last three years there has been a
3 rather minimal amount of sales activity in southwest
4 Lake Forest. In my opinion there is not enough
5 information to make a meaningful trend analysis. You
6 could probably take one or two sales and say that the
7 trend may have been upward, but I haven't found any
8 evidence to the contrary.
9 Q. You haven't found evidence to the contrary,
10 that is, that the trend has been upward?
11 A. I haven't found any evidence of a downward
12 trend.
13 Q. Well, are you aware of any downward trend in
14 the price of real estate anywhere along the North
15 Shore --
16 MR. KOLAR: Objection, relevance.
17 BY MR. KAISER:
18 Q. -- over the last three years?
19 MR. KOLAR: Objection, relevance to the North
20 Shore.
21 HEARING OFFICER KNITTLE: Mr. Kaiser, you want to
22 explain the relevance.
23 MR. KAISER: I think it's common knowledge that
24 real estate in the Chicagoland area, unless you're in a
L.A. REPORTING (312) 419-9292
1310
1 community like Dalton or Harvey or Waukegan or Zion,
2 has gone up and gone up rather dramatically over the
3 last three years.
4 BY MR. KAISER:
5 Q. Is that your sense of the market, Mr. Byrnes?
6 A. Yes. In general that's --
7 MR. KOLAR: Objection, I thought he was --
8 MR. KAISER: I'll rephrase.
9 MR. KOLAR: -- responding to my objection.
10 HEARING OFFICER KNITTLE: So did I, Mr. Kaiser. I
11 didn't realize you were going to ask another question.
12 MR. KAISER: I rephrased the question.
13 HEARING OFFICER KNITTLE: Do you want to withdraw
14 your objection based on that rephrasal?
15 MR. KOLAR: Fine.
16 Is Dalton on the North Shore? I don't know.
17 HEARING OFFICER KNITTLE: I don't even know where
18 Dalton is so --
19 MR. KAISER: It's in the Chicagoland area.
20 MR. KOLAR: If you rephrase it, I'll --
21 BY MR. KAISER:
22 Q. Unless you're in a distressed or blighted
23 community the market prices have gone up, isn't that
24 true, Mr. Byrnes?
L.A. REPORTING (312) 419-9292
1311
1 MR. KOLAR: I object. He had a question pending.
2 I withdrew my objection. He had another question
3 pending before he gave him a chance to answer that one,
4 then he gave another question. So I move to strike
5 that question and let Mr. Byrnes answer the previous
6 question.
7 MR. KAISER: I'd go along with that.
8 HEARING OFFICER KNITTLE: I'll go along with that
9 too.
10 Do you recall the previous question or do you
11 need the court reporter to read it back?
12 THE WITNESS: I believe the previous question
13 was -- I'm paraphrasing of course -- isn't it true that
14 over the last three years in virtually the whole
15 Chicagoland area that residential prices have gone up
16 dramatically except for areas like Dalton, Harvey,
17 Zion, Waukegan and other similar areas which I assume
18 counsel thinks are less desirable areas for people to
19 live in. And if that's the question, I can answer it.
20 BY MR. KAISER:
21 Q. That's a fair paraphrase of the question,
22 yes.
23 A. Okay. Generally speaking the answer is yes.
24 Q. So what would be possible --
L.A. REPORTING (312) 419-9292
1312
1 MR. KOLAR: This is the Marcia Rowley who entered.
2 MR. KAISER: No, this is Ms. Weber.
3 MR. KOLAR: You're right. I'm sorry.
4 I apologize, Ms. Weber.
5 MR. KAISER: One of the complainants, Leslie
6 Weber.
7 Good morning. Welcome.
8 MR. KOLAR: I stand corrected.
9 BY MR. KAISER:
10 Q. I mean, that's a fair general statement of
11 the trends in real estate in the Chicagoland area for
12 the last three years, correct?
13 A. Yes. In fact Karen Dickey said that she
14 thought the Rotis in 1999 would have a much better
15 chance of selling their property than when she listed
16 it in 1997.
17 Q. And that's because the market for many
18 reasons has improved over the last three years, right?
19 A. That would certainly be one of the reasons.
20 Q. Now, you read us from portions of Mr.
21 Rosenstrock's deposition transcript, and you read us
22 the section where Mr. Kolar asked Mr. Rosenstrock
23 whether he thought his house was now worth more than
24 $550,000, do you recall reading that portion?
L.A. REPORTING (312) 419-9292
1313
1 A. Yes.
2 Q. You recall that Mr. Rosenstrock's answer was
3 "I hope so"?
4 A. Yes.
5 Q. And you took that as an argument or a
6 statement that supported your opinion that LTD's
7 increased dock operations have not reduced the value of
8 Mr. Rosenstrock's home, wasn't that one of the bases?
9 A. Yes.
10 Q. Now, it's possible, is it not, speaking
11 strictly theoretically here, for Mr. Rosenstrock's home
12 to have increased in value but not at a rate similar to
13 homes in southwest Lake Forest over the same time
14 period?
15 A. Theoretically, yes, that's possible.
16 Q. And it's theoretically possible that it
17 didn't keep pace with the increased value in southwest
18 Lake Forest over the last three years in part because
19 of the increased dock operations at LTD to the extent
20 prospective purchasers knew about the increased dock
21 operations?
22 A. It doesn't correspond to my opinion.
23 Q. That's not your opinion. Even theoretically
24 you wouldn't admit that as a possibility?
L.A. REPORTING (312) 419-9292
1314
1 A. That's correct.
2 Q. Now, you talked about the hypothesis that you
3 were testing, do you remember using that term?
4 A. Yes.
5 Q. And do you recall during the course of your
6 deposition that you were investigating a theory as to
7 whether LTD's increased dock operations had an impact
8 on the fair market value, do you recall that?
9 A. That's correct.
10 Q. And you referred to this was a somewhat
11 subsidiary analysis in line with the general
12 theoretical analysis, an analysis based on my
13 experience, do you recall that description of your work
14 in process?
15 A. Yes.
16 Q. And I don't think you're going to tell the
17 Board that appraising real estate is a hard science,
18 are you?
19 A. Well, I'm not sure what that question means.
20 But I think what you're saying is it's not a hard
21 science in the respect of if you're a chemist testing a
22 chemical reaction, it's going to come out
23 quantitatively a certain way, whereas when you're
24 appraising properties, there is not enough market data
L.A. REPORTING (312) 419-9292
1315
1 usually to formulate answers that way and you have to
2 use some judgment.
3 Q. And you used judgment here, did you not?
4 A. Yes.
5 Q. And you'd admit to the possibility, wouldn't
6 you, Mr. Byrnes, that another appraiser could reach the
7 exact opposite conclusion that you have reached and
8 given the Board here this morning, correct?
9 A. Yes.
10 Q. Do you have any idea how much McCann &
11 Associates have billed LTD for your work to date?
12 A. Yes.
13 Q. How much is that?
14 MR. KOLAR: Objection. For this particular
15 project?
16 MR. KAISER: Yes, for this particular project.
17 HEARING OFFICER KNITTLE: Is the objection
18 withdrawn based on the --
19 MR. KOLAR: Yes.
20 THE WITNESS: Approximately $5,900 on an hourly
21 basis.
22 BY MR. KAISER:
23 Q. And that's for your time in connection with
24 the preparation of your opinion?
L.A. REPORTING (312) 419-9292
1316
1 A. Yes.
2 Q. And, as I understood it, during your
3 deposition I asked a question, "Who else did you rely
4 on down there at McCann to help you formulate this
5 opinion?" And you told me it was essentially your
6 opinion, you may have used somebody to pull some
7 information together but really this is your work
8 product, right?
9 A. Yes.
10 Q. Now, you gave us a list of what I called
11 locational elements --
12 MR. KOLAR: That's Marcia Rowley, I think.
13 MS. ROWLEY: Yes.
14 BY MR. KAISER:
15 Q. -- that affected the value of Ms. Weber's
16 property, Mr. Rosenstrock's property and the Rotis'
17 property.
18 A. Yes.
19 Q. Do you recall those?
20 A. Yes.
21 Q. And you noted that all three of the
22 complainants' properties were immediately adjacent to
23 commercial usages, correct?
24 A. Yes.
L.A. REPORTING (312) 419-9292
1317
1 Q. And that these commercial usages preexisted
2 to some extent the Webers' arrival, Mr. Rosenstrock's
3 arrival and the Rotis' arrival, right?
4 A. Yes.
5 MR. KAISER: And I would just take a minute here,
6 Mr. Knittle, to ask that the witness be excluded
7 because her testimony may bear or be influenced to a
8 certain degree by Mr. Byrnes' testimony.
9 HEARING OFFICER KNITTLE: Mr. Kolar.
10 MR. KOLAR: I think you have a right to do that.
11 That's why I didn't have Mr. Byrnes read the
12 transcripts from the hearing. I have no objection. I
13 understanding that's the order we're working under.
14 HEARING OFFICER KNITTLE: Ma'am, if you could step
15 outside. We'll come get you.
16 Let's go off the record.
17 (Discussion off the record.)
18 BY MR. KAISER:
19 Q. Mr. Byrnes, as I understand your opinion, you
20 make no distinction between LTD's level of dock
21 operations in 1986 and LTD's current level of dock
22 operations, is that correct?
23 A. No, that's not correct.
24 Q. Well, explain to me and to the Board how you
L.A. REPORTING (312) 419-9292
1318
1 take into account the increased volume of truck traffic
2 at LTD's dock operations?
3 A. Well, in answering your previous question you
4 asked if I considered that there was a difference
5 between the 1986 level of operations and what there was
6 say today, and, properly considered, what I looked at
7 was the level of 1987 and subsequent operations because
8 the current number of truck docks were not added until
9 1987, they weren't all there in 1986.
10 Q. All right. So by 1987 then we have 20 or
11 more truck docks along the north end of LTD?
12 A. That's right.
13 Q. And just so I'm clear, it's your statement
14 that once you get the 20 docks in there, whether
15 they're used 12 hours a day or 20 hours a day doesn't
16 really matter?
17 A. What I'm saying is whether they're -- just to
18 sharpen my answer in relation to your question, whether
19 it's a one-shift or two-shift-a-day operation is not
20 the major factor contributing to the depreciation of
21 these properties.
22 Q. Is it a factor at all?
23 A. No.
24 Q. That's my point. You're telling the Board
L.A. REPORTING (312) 419-9292
1319
1 that as soon as you get the 20 docks in, whether
2 they're in operation 12 hours a day or 20 hours a day
3 doesn't matter if we're talking about fair market value
4 of the Roti, Rosenstrock and Weber residences, right?
5 A. Yes, Counsel. As I said, the question is
6 whether --
7 Q. That's fine. You have answered it. Your
8 answer is yes, right?
9 MR. KOLAR: Objection. I don't think his question
10 called for a yes or no answer, so I would object and
11 ask that the Hearing Officer allow him to finish his
12 answer.
13 HEARING OFFICER KNITTLE: Overruled. You can
14 address this in redirect.
15 BY MR. KAISER:
16 Q. Now, one of the sources of information that
17 you relied on was a conversation you had with Jack
18 Voigt, right?
19 A. Yes.
20 Q. And Jack Voigt's one of the senior managers
21 at LTD, correct?
22 A. That's what I understand.
23 Q. And you brought that question to him and you
24 said, "Mr. Voigt, is it true you're operating 24 hours
L.A. REPORTING (312) 419-9292
1320
1 a day?" You asked him that, didn't you?
2 A. Yes.
3 Q. And he told you that is absolutely false,
4 didn't he?
5 A. Not in those exact words but --
6 Q. But he told you, "We don't operate 24 hours a
7 day," right?
8 A. That's what he told me.
9 Q. "We only operate two shifts," that's what he
10 told you, right?
11 A. He told me two shifts and that at some points
12 they had had overtime prior to the opening of the
13 Aurora facility.
14 Q. And that sometimes that overtime went even
15 until 1 or 1:30 he told you, right?
16 A. Yes.
17 Q. But he didn't tell you that overtime went on
18 some occasions until 2:30 in the morning, did he?
19 A. Not to my recollection.
20 Q. Well, when I asked you that question during
21 the course of your deposition on July 21, 1999, you
22 told me he didn't tell you that, do you remember that?
23 MR. KOLAR: Objection, not impeaching. I think he
24 said the same thing in his answer here moments ago.
L.A. REPORTING (312) 419-9292
1321
1 HEARING OFFICER KNITTLE: Sustained.
2 I don't understand, Mr. Kaiser, how this is
3 any different than --
4 MR. KAISER: I'm going to impeach him properly.
5 BY MR. KAISER:
6 Q. Question -- and this is reading from the
7 transcript of your deposition.
8 HEARING OFFICER KNITTLE: Mr. Kolar, do you have a
9 problem? Do you want to look at it before he does?
10 MR. KOLAR: I'd like to know the page and line.
11 MR. KAISER: Page 58, Line 15 through 20.
12 BY MR. KAISER:
13 Q. Question, "And did he" --
14 MR. KOLAR: Objection, not impeaching. Before he
15 reads it in the record, if you can take a look at it, I
16 think he just answered consistently with the deposition
17 testimony.
18 BY MR. KAISER:
19 Q. All right. May I refresh your recollection
20 as to what Mr. Voigt told you --
21 HEARING OFFICER KNITTLE: Hold on, Mr. Kaiser.
22 MR. KOLAR: Objection, asked and answered.
23 HEARING OFFICER KNITTLE: I think --
24 MR. KOLAR: Page 58, Line 15.
L.A. REPORTING (312) 419-9292
1322
1 HEARING OFFICER KNITTLE: Let's go off.
2 (Discussion off the record.)
3 HEARING OFFICER KNITTLE: Mr. Kaiser, I don't see
4 how it's any different but I'm going to allow you to
5 make an offer of proof if you like.
6 MR. KAISER: I'll offer to refresh his
7 recollection.
8 BY MR. KAISER:
9 Q. You have just told us now, Mr. Byrnes, this
10 morning that you don't recall whether Jack Voigt told
11 you that LTD's docks on occasion operated until 2:30
12 a.m., do you recall saying "I don't remember if he said
13 that"?
14 A. Yes.
15 Q. All right. Now, I want to show you Page 58
16 of your deposition transcript where I asked essentially
17 that same question.
18 A. Yes.
19 Q. And if you'd look there at Lines 15 through
20 20 and let me know if that refreshes your recollection
21 as to what Mr. Voigt told you?
22 A. It refreshes my recollection of my answer to
23 the question that you phrased to me.
24 Q. But it doesn't refresh your recollection with
L.A. REPORTING (312) 419-9292
1323
1 respect to what Mr. Voigt told you?
2 A. No.
3 Q. Now, did Mr. Voigt ever tell you that with
4 some regularity semitractors and their trailers arrive
5 at the LTD facility before 6 a.m. in the morning?
6 A. No.
7 Q. No, he didn't tell you that, did he?
8 A. No.
9 Q. Do you feel there is a significant
10 difference -- well, strike that.
11 Now, one of the sources of information that
12 you relied on was information you obtained from the
13 Township Assessor's Office, is that right?
14 A. That's right.
15 Q. And you went over -- is that the west
16 Deerfield Township Assessor's Office?
17 A. Yes.
18 Q. And you went to that office in person, didn't
19 you?
20 A. Yes.
21 Q. And you had them pull out these property
22 record cards, right?
23 A. Yes.
24 Q. And you pulled out some tax maps so you could
L.A. REPORTING (312) 419-9292
1324
1 see where those parcels of real estate were located in
2 relation to one another, correct?
3 A. That's right.
4 Q. And you looked at the entire subdivision in
5 which the Roti, Weber and Rosenstrock residences are
6 located, correct?
7 A. Yes.
8 Q. And you looked at the assessed value of every
9 parcel of real estate within that subdivision, did you
10 not?
11 A. Yes.
12 Q. And with one exception, the West Deerfield
13 Township assessor assessed the value of the parcels
14 within the entire subdivision --
15 MR. KOLAR: Objection, relevance, assessment.
16 MR. KAISER: It's one of the bases he relied on.
17 MR. KOLAR: He didn't say he relied on assessment.
18 Assessment is some assessor's note of a percentage of
19 fair market value and it often has nothing to do with
20 fair market value even though the statute may indicate
21 an assessment should be one third of fair market value
22 or sometimes counties have an ordinance that it should
23 be a certain percentage of fair market value. But if
24 he's going to offer what the assessor does in terms of
L.A. REPORTING (312) 419-9292
1325
1 assessment, he should have called the assessor.
2 Assessment is completely different than fair market
3 value.
4 HEARING OFFICER KNITTLE: Mr. Kaiser.
5 MR. KAISER: Mr. Kolar knows that in the course of
6 Mr. Byrnes' deposition we spent almost an hour going
7 over the assessed value of these properties and certain
8 conclusions Mr. Byrnes drew or couldn't draw on the
9 basis of that assessment and he's kept that out of the
10 direct examination because he knows it's harmful to
11 LTD.
12 MR. KOLAR: It doesn't make it relevant because he
13 asked him questions at his deposition about assessment.
14 HEARING OFFICER KNITTLE: I agree. Mr. --
15 MR. KAISER: Oh, absolutely does. Absolutely
16 does, Mr. Knittle. His argument that he's getting paid
17 175 an hour to put in front of the Board is that the
18 properties on the peripheral of the -- the periphery of
19 the subdivision are less valuable than the properties
20 in the center and north. That's his argument, that
21 because they're located next to these inharmonious land
22 uses, to borrow Mr. Byrnes' expression from the
23 deposition, that they're less valuable. Now I think
24 it's highly relevant whether the Township assessor
L.A. REPORTING (312) 419-9292
1326
1 considers these parcels less valuable.
2 HEARING OFFICER KNITTLE: I wasn't disagreeing
3 with you on relevance. What I want to know, Mr.
4 Kaiser, is -- and, sir, your last name again?
5 THE WITNESS: Byrnes.
6 HEARING OFFICER KNITTLE: Mr. Byrnes, what did
7 you -- you pulled the assessor's cards?
8 THE WITNESS: Property record cards, yes.
9 HEARING OFFICER KNITTLE: Property record cards.
10 Mr. Kaiser, what I wanted to know is whether
11 or not he covered this on his direct examination, if it
12 was in fact beyond the scope of the direct examination.
13 MR. KAISER: Yeah, he covered it. He said he went
14 to the office and he pulled these cards, and these were
15 part of the basket of information he put together to
16 evaluate this hypothesis that he tested.
17 MR. KOLAR: It's relevant and the reason is
18 because in Illinois you have -- the statute says
19 assessment should be one third of fair market value but
20 in fact they're not. That's why we have things called
21 township multipliers and state multipliers because you
22 have variances across the county which requires the
23 county officials to apply a multiplier onto assessment
24 to try to bring them up to what the statute says they
L.A. REPORTING (312) 419-9292
1327
1 should be. And then on top of that, the state tries to
2 equalize assessments throughout the state by use of a
3 state equalizer. So what I'm telling you is the
4 objection is not assessments are not relevant because
5 more often than not assessments are not one-third of
6 fair market value as the assessed -- as they're
7 supposed to be by statute. And that's because you
8 might have an assessor who hasn't had a chance to get
9 through that subdivision in a number of years or
10 because of a whole multitude of factors. So we're
11 talking fair market value in his opinion, and I think
12 it's irrelevant to bring in what the assessor has in
13 terms of assessments for these particular properties.
14 HEARING OFFICER KNITTLE: Mr. Kolar, he based his
15 opinion in part on what the assessed values of these
16 properties were.
17 Correct, sir?
18 THE WITNESS: I believe what I said, and I hope I
19 didn't misstate it, is, one of the sources of
20 information that I consulted was the assessor's
21 property record cards so that I knew historically when
22 the lots were developed. Also, I did review in one of
23 my files, which Mr. Kaiser looked at in my deposition,
24 was a listing of the assessor's indicated fair market
L.A. REPORTING (312) 419-9292
1328
1 value of the lots, the land only for all the lots
2 within the subdivision. And that is something we
3 talked about at my deposition. And I considered it,
4 but I wouldn't say that it was something that I based
5 my opinion on if I can make that distinction.
6 HEARING OFFICER KNITTLE: I'm going to overrule
7 the objection, Mr. Kolar.
8 Mr. Kaiser, go ahead.
9 MR. KAISER: Thank you.
10 BY MR. KAISER:
11 Q. Just to get back on track here, you went to
12 the West Deerfield Township Assessor's Office, correct?
13 A. Yes.
14 Q. You pulled these property cards, right?
15 A. That's right.
16 Q. You pulled the tax map, right?
17 A. Yes.
18 Q. You looked at the valuation the assessor had
19 given to every lot within the subdivision in which the
20 Roti, Weber and Rosenstrock homes are located, correct?
21 A. Yes.
22 Q. And you noted that, with one exception, the
23 West Deerfield Township assessor assigned the identical
24 value to all the property within that subdivision,
L.A. REPORTING (312) 419-9292
1329
1 correct?
2 A. To all the lots, yes.
3 Q. All the lots in that subdivision.
4 And that was -- if I'm recalling correctly --
5 the assessed value was 90,000, right?
6 A. The assessed value was about $98,000.
7 Q. $98,000.
8 That 98,000, that was the assessed value for
9 the Weber property, right?
10 A. Right.
11 Q. And for the Rosenstrock property, right?
12 A. Yes.
13 Q. And for the Roti property, correct?
14 A. Yes.
15 MR. KOLAR: Objection, relevance and foundation.
16 You get a new assessment every year, so he's just
17 saying for this assessment, for this assessment, for
18 this assessment without any reference to a year.
19 BY MR. KAISER:
20 Q. Do you recall, Mr. Byrnes, what year you
21 looked at?
22 A. Since my investigation was done at the
23 Assessor's Office I believe in April of 1999, the
24 relevant tax year probably would have been 1998.
L.A. REPORTING (312) 419-9292
1330
1 Q. And you looked at lots located in the
2 interior of the subdivision, did you not?
3 A. Yes.
4 Q. And the assessor had assigned the value of
5 $98,000 for those lots, correct?
6 A. Yes.
7 Q. And you looked at lots within the subdivision
8 located closer to Telegraph Road and closer to the
9 center part of Lake Forest, right?
10 A. Yes.
11 Q. And the assessor has assigned the value to
12 those lots of $98,000, correct?
13 A. I'm sorry, you're asking about lots which are
14 no longer located within the subject subdivision?
15 Q. No, within the subject subdivision.
16 A. Then the answer is yes, they are uniform on
17 all those lots.
18 Q. Now, this MAI certification, is that -- what
19 is that?
20 A. That's a designation given by a private
21 appraisal organization which is called the Appraisal
22 Institute. And it's given after taking a number of
23 courses, submitting experience credits, and writing a
24 demonstration appraisal and passing a comprehensive
L.A. REPORTING (312) 419-9292
1331
1 exam. They then grant that professional designation of
2 MAI.
3 Q. And do you have that?
4 A. No, I don't.
5 Q. When was the last time you talked to Jack
6 Voigt?
7 A. In 1999.
8 Q. Do you know whether the construction of LTD's
9 facility in Aurora actually reduced noise emissions
10 from LTD's dock areas during the fall of 1999?
11 A. I don't know.
12 Q. After talking with Mr. Voigt you concluded
13 that the increase in dock operations at the LTD
14 facility in Bannockburn was but a temporary phenomenon
15 and that you didn't foresee it would go on into the
16 future, was that the conclusion you drew from your
17 conversation with Mr. Voigt some time in 1999?
18 A. Mr. Voigt, yes, basically told me that -- and
19 I believe it may have been in the context of overtime,
20 but generally the conversation I had with him indicated
21 that any of the extra overtime pressures that were
22 leading to these later hours would be relieved by the
23 Aurora facility.
24 Q. But, again, as you sit here today you don't
L.A. REPORTING (312) 419-9292
1332
1 know whether that Aurora facility relieved any of these
2 overtime pressures on the LTD Bannockburn facility
3 during the fall and winter of 1999, do you?
4 MR. KOLAR: Objection, asked and answered.
5 HEARING OFFICER KNITTLE: Sustained.
6 BY MR. KAISER:
7 Q. Did Mr. Voigt ever tell you that the LTD
8 Bannockburn facility, once the Aurora facility was up
9 and running, would scale back to only one shift a day?
10 A. No.
11 MR. KAISER: I have no further questions. Thank
12 you.
13 HEARING OFFICER KNITTLE: Redirect, Mr. Kolar.
14 MR. KOLAR: Yes. Thank you.
15 REDIRECT EXAMINATION
16 BY MR. KOLAR:
17 Q. Mr. Byrnes, the designation MAI, that means
18 Member Appraisal Institute, correct?
19 A. Yes.
20 Q. And people who are currently MAIs are members
21 of the Appraisal Institute?
22 A. Yes.
23 Q. And they're the ones who set the courses and
24 other requirements for people like you who want to
L.A. REPORTING (312) 419-9292
1333
1 become part of this group, right?
2 A. That's right.
3 Q. And you're in the process of doing that?
4 A. Yes. Technically I'm identified as an
5 associate member which is not given, you know, a letter
6 or abbreviation type designation like the MAI.
7 Q. And you're following the normal progression
8 that a person who wanted to become an MAI follows to be
9 an MAI, correct?
10 A. Yes.
11 Q. Now, you told us that you have testified
12 before local boards of review throughout the collar
13 county area, correct?
14 A. Yes.
15 Q. And you have testified before the Illinois
16 Property Tax Appeal Board, correct?
17 A. Yes.
18 Q. And that's where people come before Boards of
19 Review or the Property Tax Appeal Board and say, "My
20 assessment is too high because it doesn't accurately
21 reflect the fair market value of the property," for
22 example, right?
23 MR. KAISER: Objection, leading.
24 HEARING OFFICER KNITTLE: Sustained.
L.A. REPORTING (312) 419-9292
1334
1 Can you rephrase, Mr. Kolar.
2 BY MR. KOLAR:
3 Q. In your experience people come before the
4 Board of Review or the Property Tax Appeal Board and
5 complain that their assessment is too high, right?
6 A. Yes.
7 Q. So based on your knowledge the Rotis, the
8 Rosenstrocks and the Webers, if they really believe
9 that their property value was depressed because of
10 operations of the LTD property, they, like anybody
11 else, would have the right to file an assessed
12 valuation complaint with the Lake County Board of
13 Review and make that argument, right?
14 MR. KAISER: Objection, leading.
15 HEARING OFFICER KNITTLE: Sustained.
16 BY MR. KOLAR:
17 Q. To your knowledge do the Rotis, the Webers
18 and the Rosenstrocks have the right here in Lake
19 County, Illinois to file assessed valuation complaints
20 regarding their assessments?
21 MR. KAISER: Objection, foundation.
22 HEARING OFFICER KNITTLE: Mr. Kolar, any response?
23 MR. KOLAR: No.
24 HEARING OFFICER KNITTLE: Foundation how, Mr.
L.A. REPORTING (312) 419-9292
1335
1 Kaiser, his knowledge --
2 MR. KAISER: I mean, we could put Mr. Kolar on the
3 stand, and I think he could qualify as an expert in
4 this area. I don't know that Mr. Byrnes knows a thing
5 about it other than what Mr. Kolar's spoonfeeding him
6 this morning in the form of leading questions.
7 MR. KOLAR: I thought I heard a foundation
8 objection.
9 MR. KAISER: Yeah, it is because you're trying to
10 give him the foundation through a leading improper
11 question.
12 HEARING OFFICER KNITTLE: I think the question
13 probably was leading and I would sustain on that. But
14 I think this witness has been well qualified to answer
15 this type of question. So I would allow these
16 questions to go forward but in a nonleading fashion.
17 BY MR. KOLAR:
18 Q. Have you ever testified regarding the
19 assessment of a property where a property owner said
20 there is a negative influence that affects the value of
21 my property?
22 A. Well, yes, actually every time I have worked
23 for a tax payer who's protesting their assessment, they
24 have always said that there is some factor that the
L.A. REPORTING (312) 419-9292
1336
1 assessor hasn't recognized that's a negative on their
2 value and should push it lower.
3 Q. And based on -- have you worked in Lake
4 County in terms of assessed value?
5 You have assessed valuation complaints in
6 Wynstone, right?
7 A. Yes.
8 Q. That's Lake County?
9 A. Yes.
10 Q. So have you appeared before the Lake County
11 Board of Review?
12 A. Yes.
13 Q. Have you appeared before the Illinois
14 Property Tax Appeal Board concerning Lake County
15 properties?
16 A. No.
17 Q. So do you have a knowledge as to generally
18 how the system works if a person believes his
19 assessments is too high?
20 A. Yes, I do.
21 Q. So, for example, if the Rotis tell me -- if
22 the Rotis believe that LTD Commodities, the operations
23 from LTD Commodities depresses the value of their
24 property, based on your understanding of the process,
L.A. REPORTING (312) 419-9292
1337
1 can they file an assessed valuation complaint and make
2 that argument?
3 A. Yes.
4 Q. And if Rosenstrock believes that his property
5 is depressed by LTD operations, he could do that as
6 well?
7 A. Yes.
8 Q. Same for the Webers, correct?
9 A. Yes.
10 Q. And then if they prevail, and you went and
11 looked at the assessor's records, we would see a lower
12 assessment for the land of the Roti, Rosenstrock and
13 Weber properties relative to the other lots in the
14 subdivision, correct?
15 MR. KAISER: Objection, calls for speculation.
16 HEARING OFFICER KNITTLE: I think the speculation
17 is inherent in the question. You said if they win?
18 MR. KOLAR: Right.
19 HEARING OFFICER KNITTLE: Based on that
20 assumption, I don't think there is any speculation, so
21 overruled.
22 THE WITNESS: Based on what I would represent to
23 you is my considerable experience with property tax
24 matters in Illinois, the results of property tax
L.A. REPORTING (312) 419-9292
1338
1 appeals, the likely result of any of the complainants
2 winning such a hypothetical appeal would be a reduced
3 assessment either of their land assessment, the
4 improvement assessment or both components. But, at any
5 rate, their total assessment would be reduced.
6 BY MR. KOLAR:
7 Q. If you win, your assessment is reduced,
8 that's a fact, right?
9 A. Yes.
10 Q. Do you have any knowledge of in the last five
11 years the Rotis, the Rosenstrocks, the Webers filing an
12 assessed valuation complaint with the Lake County Board
13 of Review?
14 A. No.
15 Q. Now, in terms of your fee for this hearing,
16 you kind of in effect appeared twice, correct?
17 A. That's right.
18 Q. You thought you were going to testify in
19 November 1999, right?
20 A. Yes.
21 Q. You prepared at that time, correct?
22 A. Yes, I did.
23 Q. You were geared up to testify?
24 A. Yes.
L.A. REPORTING (312) 419-9292
1339
1 Q. And you set the file down, correct?
2 A. Yes.
3 Q. You had to gear up again here in May 1999,
4 correct?
5 A. Year 2000.
6 Q. May 2000. You had to gear up again in May
7 2000 for the hearing, correct?
8 A. That's right.
9 Q. Now, you mentioned on direct then with Mr.
10 Kaiser that in your experience there is a class of
11 people who will come to the Roti, the Rosenstrock and
12 the Weber property, look at the tollway and the
13 influences to the south and either say "I'll buy the
14 property" or "I won't," right?
15 A. Yes, that was a major distinction that I
16 made.
17 Q. So the Rotis, the Rosenstrocks and the
18 Webers, based on your understanding of the chronology
19 of events here, fit into the class of people who knew
20 of the tollway, looked to the south and bought the
21 lots?
22 A. Yes.
23 Q. And based on your review of the record, only
24 the Rotis have listed their property for sale since
L.A. REPORTING (312) 419-9292
1340
1 they acquired it, correct?
2 A. To the best of my knowledge that's right.
3 Q. Mr. Kaiser went into great detail regarding
4 the '95 expansion and trucking operations, do you know
5 if Mr. Hara testified in this hearing that there were
6 nighttime trucking operations before 1990 when Mr.
7 Voigt started working at the property, do you know what
8 he said in that regard?
9 A. No, I don't.
10 Q. Do you know if Mr. Voigt testified that there
11 were nighttime truck operations in 1994 before the '95
12 expansion?
13 A. I don't know how he testified on that.
14 Q. If those things were true, would that be
15 further support for your opinion regarding this case?
16 A. No, it wouldn't change my opinion.
17 Q. In terms of looking at Mr. Rosenstrock's
18 transcript, when he was asked if this property had
19 appreciated, and he said, as Mr. Kaiser indicated, "I
20 hope so," you read that question and read that answer,
21 correct?
22 A. That's right.
23 Q. And did you look at that testimony by Mr.
24 Rosenstrock relative to his allegation that LTD
L.A. REPORTING (312) 419-9292
1341
1 "depresses the value of complainants' properties"?
2 A. Yes.
3 Q. And that was the hypothesis that you were
4 testing, correct?
5 A. Yes.
6 Q. So that was information you thought was
7 relevant to testing the allegation by the complainants?
8 A. Yes, I certainly wanted to see what they had
9 to say about it.
10 Q. You felt from that testimony that Mr.
11 Rosenstrock was at least not consistent with this
12 allegation?
13 A. Yes, I felt it was inconclusive.
14 Q. When you have been out to the street that the
15 complainants live on have you heard tollway noise?
16 A. Yes.
17 MR. KAISER: Objection, beyond the scope.
18 HEARING OFFICER KNITTLE: Sustained.
19 MR. KOLAR: I don't have anything else.
20 MR. KAISER: Briefly redirect.
21 HEARING OFFICER KNITTLE: Yes, recross.
22 MR. KAISER: Yes, recross.
23
24
L.A. REPORTING (312) 419-9292
1342
1 RECROSS EXAMINATION
2 BY MR. KAISER:
3 Q. Now, you have just told the Board that you
4 have substantial experience and even expertise in
5 property tax assessment challenges, is that right?
6 A. Yes.
7 Q. You told us that if the Rotis, Webers and Mr.
8 Rosenstrock felt that LTD's dock operations were
9 depressing the value of their property, they could go
10 to the assessor, right?
11 A. I believe they have that legal right, yes.
12 Q. But you wouldn't expect them to get any
13 relief from the assessor, would you?
14 A. I don't know how the assessor would react,
15 although I did ask him specifically about that
16 hypothetical.
17 Q. Well, you have told us that LTD's dock
18 operations even operating 20 hours a day, don't depress
19 the value of the Roti, Weber or Rosenstrock homes,
20 isn't that right?
21 A. What I said was that under the preexisting
22 conditions that the presence of LTD was one of the
23 depreciative factors, along with the tollway, the other
24 commercial uses and the location of the far southwest
L.A. REPORTING (312) 419-9292
1343
1 part of Lake Forest.
2 Q. Did the preexisting conditions include LTD
3 dock operations five and a half days a week for 20
4 hours a day for five months, is that the preexisting
5 condition?
6 MR. KOLAR: Objection, misstates the record
7 regarding LTD operations.
8 THE WITNESS: What I'm saying is that --
9 HEARING OFFICER KNITTLE: Hold on, sir.
10 THE WITNESS: I'm sorry.
11 HEARING OFFICER KNITTLE: I'm going to overrule
12 and take that in terms of a hypothetical. I can't
13 recall what the record states, Mr. Kolar, at this
14 point. We have come back and forth on it a number of
15 times and I don't think the record is entirely clear --
16 MR. KAISER: I certainly can, and I think I
17 formulated that accordance with what the proofs have
18 been so far.
19 HEARING OFFICER KNITTLE: I'm going to allow the
20 question to stand.
21 THE WITNESS: Can I hear the question again.
22 HEARING OFFICER KNITTLE: Can you read it back.
23 (Record read as requested.)
24 THE WITNESS: I guess I would have to ask you to
L.A. REPORTING (312) 419-9292
1344
1 further explain that question in terms of preexisting
2 to what date or just generally preexisting?
3 BY MR. KAISER:
4 Q. Well, weren't you saying the docks were added
5 in 1987?
6 A. Yes.
7 Q. All right. That's the preexisting condition,
8 right?
9 A. Right.
10 Q. That's the baseline, right?
11 A. Yes.
12 Q. Nothing since 1987 has affected or further
13 depreciated the value of the Roti, Weber or
14 Rosenstrock's residences, right?
15 A. As I answered, there was substantial
16 depreciation from those preexisting factors and, yes,
17 what's happened since then has not added to the
18 depreciation for market value.
19 Q. Has not added in any way, correct?
20 A. Not from a market value point of view.
21 Q. Perhaps from a noise nuisance, perhaps from
22 an ability to use and enjoy your property it might have
23 affected it, right?
24 A. I don't know.
L.A. REPORTING (312) 419-9292
1345
1 Q. Now, when this prospective buyer comes, looks
2 at either the Weber, Roti or Rosenstrock residences and
3 observes the tollway to the west, Corporate 100 to the
4 south, and LTD's dock operations, do you think that
5 prospective purchaser makes an assumption that LTD will
6 conduct its operations in accordance with Illinois
7 state law?
8 A. Well, I would assume that if a buyer posed
9 that question to themself, and I think only a minority
10 of buyers would actually pose the question to
11 themselves in that manner, but if they did, I would
12 assume, yes, that they would think that they would
13 operate legally.
14 Q. With that be a full hearty assumption that
15 LTD would operate within the bounds of state law here
16 in Illinois?
17 A. No.
18 Q. That would be a fair assumption, right?
19 A. Yes.
20 Q. So to the extent that Leslie Weber thought
21 LTD would operate its dock in compliance with Illinois
22 state law, that was a fair assumption she made, wasn't
23 it?
24 MR. KOLAR: Objection to the question. It's
L.A. REPORTING (312) 419-9292
1346
1 basically assuming that LTD is violating Illinois state
2 law and that hasn't been determined at all.
3 MR. KAISER: I think that's been -- there is ample
4 support for that in the record.
5 HEARING OFFICER KNITTLE: I think that's what
6 we're here to decide.
7 MR. KOLAR: I didn't know Mr. Kaiser made that
8 determination. That's my objection.
9 HEARING OFFICER KNITTLE: I'll allow the question
10 to stand, but I will note for the record that there has
11 been no determination to the best of my knowledge that
12 LTD is in violation of any state laws at this point.
13 BY MR. KAISER:
14 Q. Do you recall the question?
15 A. Yes, I do.
16 And I never thought of the question in
17 exactly those terms, whether Mrs. Weber particularly
18 thought that LTD would operate a legal operation. But
19 I can tell you that I would think that any of the
20 complainants, and in fact any property owner, would be
21 fair to assume that any adjacent use would be operated
22 legally.
23 MR. KAISER: Thank you. I have no further
24 questions.
L.A. REPORTING (312) 419-9292
1347
1 HEARING OFFICER KNITTLE: Mr. Kolar, do you have
2 any re-redirect?
3 MR. KOLAR: No.
4 HEARING OFFICER KNITTLE: Sir, I thank you very
5 much for your time. You can step down.
6 THE WITNESS: Thank you.
7 HEARING OFFICER KNITTLE: Let's go off the record.
8 (Short break.)
9 HEARING OFFICER KNITTLE: Mr. Kolar, your next
10 witness is on the stand.
11 MR. KOLAR: Yes, we call Marcia Rowley, a
12 realtor.
13 HEARING OFFICER KNITTLE: Can you swear her in,
14 please.
15 (Witness sworn.)
16 MARCIA ROWLEY,
17 called as a witness herein, having been first duly
18 sworn, was examined and testified as follows:
19 DIRECT EXAMINATION
20 BY MR. KOLAR:
21 Q. Can you state your name for the record,
22 please?
23 A. Marcia Rowley.
24 Q. And what do you do for a living?
L.A. REPORTING (312) 419-9292
1348
1 A. I'm a realtor with Caldwell Banker.
2 Q. And would it be correct that you're a
3 salesperson?
4 A. Yes, a sales associate.
5 Q. And you work under some brokers license?
6 A. Yes, I do.
7 Q. Are you licensed by the State of Illinois?
8 A. Yes, I am.
9 Q. Where is your office located?
10 A. 280 East Deerpath in Lake Forest.
11 Q. Where do you live?
12 A. In Lake Forest.
13 Q. How long have you lived in Lake Forest?
14 A. 18 years.
15 Q. Do you have a business administration degree
16 from Kansas?
17 A. Yes, I do.
18 Q. How long have you been a realtor?
19 A. Almost nine years.
20 Q. Do you take listings outside of Lake Forest?
21 A. In Lake Bluff I do.
22 Q. So in terms of where you handle real estate
23 listings that would be what?
24 A. 99 percent Lake Forest.
L.A. REPORTING (312) 419-9292
1349
1 Q. And then some in Lake Bluff?
2 A. Lake Bluff, yes.
3 Q. And at one point were you working as a
4 salesperson for the Anthony and Karen Roti property on
5 Wedgewood in Lake Forest?
6 A. Yes, I was.
7 Q. How many listings did you have, do you
8 recall?
9 A. At that point in time?
10 Q. That's a vague question. I'll withdraw that.
11 Let me show you Respondent's Exhibits 8 and
12 9. I'll show you 9 first. What do you recognize 9 to
13 be?
14 A. The listing agreement.
15 Q. For the Roti property?
16 A. Yes.
17 Q. And this one is dated when?
18 A. June 1, '96.
19 Q. Then what do you recognize Exhibit 8 to be?
20 A. Also the renewal listing agreement.
21 Q. For the Roti property?
22 A. Yes.
23 Q. I should have numbered those differently,
24 but, all right, so Exhibit 9 is the first listing and
L.A. REPORTING (312) 419-9292
1350
1 then Exhibit 8 is a renewal?
2 A. Yes because it was for 90 days and then this
3 should have been about six months, yes, for 180 days.
4 Q. So when you say "90 days," you were pointing
5 to the first listing, Exhibit 9?
6 A. Correct.
7 Q. And then the second one was 180 days?
8 A. Correct.
9 Q. It's a little hard to read.
10 On Exhibit 9, the first listing, the market
11 price or listing price is?
12 A. 695.
13 Q. And then on the second one we have what?
14 A. 674.
15 Q. Who decided on what the listing price should
16 be?
17 A. Mr. Roti.
18 Q. And did Mr. or Mrs. Roti tell you why they
19 wanted to sell their home, do you recall?
20 A. Basically what I remember it as being that
21 they wanted more space.
22 Q. Do they have children, if you recall?
23 A. Yes.
24 Q. The number of children?
L.A. REPORTING (312) 419-9292
1351
1 A. Four or five.
2 Q. During the time that you were working with
3 the Rotis as their realtor trying to sell their house
4 did either of them ever say to you that LTD is noisy at
5 night from fall until Christmas time?
6 A. I don't recall that.
7 Q. Did either of them ever say to you LTD's
8 noise prevents them from falling asleep at night?
9 A. No, I don't recall that statement.
10 Q. Did either of them tell you that LTD's noise
11 wakes them at night?
12 A. I never recall a conversation like that.
13 Q. Did either of them tell you that LTD
14 operations shake their home?
15 A. I don't recall a conversation like that.
16 Q. You were at the Roti property?
17 A. Yes.
18 Q. You looked it over, I assume, right?
19 A. Yes.
20 Q. Did you hear noise when you were at the Roti
21 property?
22 A. Noise?
23 Q. Yes.
24 A. I heard noise.
L.A. REPORTING (312) 419-9292
1352
1 Q. Do you recall hearing truck noise?
2 A. No.
3 Q. Would you characterize what you heard as just
4 noise but you weren't able to really distinguish
5 whether it was tollway noise, office building noise or
6 LTD operation noise?
7 MR. KAISER: Objection, leading.
8 MR. KOLAR: I'll withdraw that question.
9 BY MR. KOLAR:
10 Q. Were you able to determine where the noise
11 was coming from that you heard?
12 A. I can tell you what I thought the noise was.
13 Is that answering the question? Is that what --
14 Q. Let me ask you this question. Could you
15 distinguish --
16 MR. KAISER: Can we get a foundation as to when
17 she was there, whether it was daytime, nighttime, which
18 season, what year?
19 HEARING OFFICER KNITTLE: Mr. Kolar, do you mind
20 asking those questions?
21 MR. KOLAR: That's fine.
22 BY MR. KOLAR:
23 Q. So the record is clear, the first listing,
24 Respondent's Exhibit 9, was for 90 days beginning what
L.A. REPORTING (312) 419-9292
1353
1 day?
2 A. Technically the date my broker signed it,
3 June 3rd.
4 Q. So you had a listing for 90 days from June 3,
5 1996, right?
6 A. Uh-huh.
7 Q. Yes?
8 A. Yes.
9 Q. And then a 180 day listing from September 19,
10 1996?
11 A. Correct.
12 Q. Were you at the Roti property on summer days?
13 A. Yes.
14 Q. Were you able to hear noise on days in the
15 summer in 1996?
16 A. Yes.
17 Q. Was it really bad during the summer?
18 MR. KAISER: Objection.
19 BY MR. KOLAR:
20 Q. How would characterize it in the summer?
21 A. Well, in the summer the windows are open, so
22 you would hear more noise inside, but you really didn't
23 hear anything unless you were outside.
24 Q. Do you recall being there on some nice summer
L.A. REPORTING (312) 419-9292
1354
1 days at the Roti property?
2 A. Yes.
3 Q. And do you have a specific recollection of
4 what the noise was like on the nice summer days?
5 A. It depended. It was different each time I
6 was there. Some days it was quieter than other days
7 when it was -- the noise was louder. It also depended
8 on what way the wind seemed to be blowing too.
9 Q. Did you hear noise with windows closed?
10 MR. KAISER: Objection, foundation.
11 HEARING OFFICER KNITTLE: Sustained.
12 BY MR. KOLAR:
13 Q. Were you in the Roti house at times when the
14 windows were closed?
15 A. Yes.
16 Q. Were you able to hear noise with the windows
17 closed?
18 A. No, not that I recall.
19 Q. And at some point did you make a report --
20 strike that.
21 Were you able to sell the Roti house?
22 A. No.
23 Q. At some point did you report to them feedback
24 you received from brokers and/or buyers as to their
L.A. REPORTING (312) 419-9292
1355
1 property?
2 A. Yes, after every two or three showings that
3 we would have, I would call them and give them feedback
4 on -- after I was able to get ahold of the other
5 agents, sometimes it would be the same day, sometimes
6 it would be several days later, I would give them
7 feedback on what the agents told me why the people
8 didn't -- what they thought about the house.
9 Q. Do you recall then giving what you would
10 classify as drawbacks to the Rotis concerning selling
11 their house?
12 A. Yes.
13 Q. What drawbacks did you tell them in terms of
14 feedback?
15 A. Okay. The ones that I can remember today
16 were the -- okay, the size of the family room was
17 small, how the house was placed on the lot, that it was
18 not centered on the lot, it was all side yard, no
19 backyard, and noise. Those are the three that come to
20 mind right now.
21 Q. And the noise that was -- strike that.
22 The things you just mentioned, those were
23 things reported to you that you reported to the Rotis?
24 A. Yes.
L.A. REPORTING (312) 419-9292
1356
1 Q. Do you recall if anybody reported to you the
2 location of the Roti house as being in the southwestern
3 corner of Lake Forest as being an issue?
4 A. You mean geographically away from the center?
5 Q. Right.
6 A. Right now I can't remember. I don't recall.
7 They might have. I don't remember.
8 Q. Let me show you Page 28 of your deposition
9 transcript starting at Line 17. Read that answer to
10 yourself and then tell me when you're done to see if
11 that refreshes your recollection.
12 (Pause in proceedings.)
13 THE WITNESS: That's almost what I just said.
14 BY MR. KOLAR:
15 Q. So do you recall reporting to the Rotis that
16 there were comments that their house was located in the
17 southwest corner of Lake Forest?
18 A. Yes, I'm sure --
19 MR. KAISER: Excuse me, Mr. Knittle, are we
20 offering this for the truth of the matter asserted,
21 these hearsay second and thirdhand hearsay statements
22 or what is the basis? I guess I'm objecting as
23 hearsay.
24 HEARING OFFICER KNITTLE: Objecting as hearsay
L.A. REPORTING (312) 419-9292
1357
1 how, her statements to the Rotis?
2 MR. KAISER: This witness is about to tell us what
3 she heard from brokers who heard it from people once
4 removed there, prospective purchasers. So we're
5 hearing double hearsay at this point.
6 MR. KOLAR: The question, which she was answering,
7 was, "What did you tell the Rotis regarding drawbacks
8 to selling their home?"
9 MR. KAISER: Which I have no problem. That's a
10 perfectly fine question. But what did these people
11 say, as if this secondhand/thirdhand reporting of what
12 they said can be reliable in any way, I object.
13 HEARING OFFICER KNITTLE: Yeah, I don't think
14 that's before us right now though based on this
15 question.
16 MR. KAISER: All right. I mean, I think Mr. Kolar
17 can ask a question that's not objectionable.
18 MR. KOLAR: I think I have done that quite a bit
19 in this hearing.
20 MR. KAISER: You certainly have, Mr. Kolar.
21 MR. KOLAR: Thank you.
22 BY MR. KOLAR:
23 Q. I'll break it down.
24 Ms. Rowley, do you recall telling the Rotis
L.A. REPORTING (312) 419-9292
1358
1 that the drawback in selling their home was that there
2 was a small backyard and a relatively large side yard?
3 A. Yes.
4 Q. In this Exhibit 9 here, do you recognize from
5 an aerial perspective the Roti house here, can you see
6 that far?
7 A. Yes, I can see that far.
8 Q. And so this area to the east is the side yard
9 you're talking about?
10 A. Yes.
11 Q. And do you recall, in terms of drawbacks you
12 told the Rotis, that another one was their home was
13 located in the southwest corner of Lake Forest away
14 from the central town area?
15 A. Correct.
16 Q. Do you recall as a drawback that some of the
17 amenities inside the home were a problem?
18 A. It had a smaller family room but that was it.
19 Q. Anything regarding bathrooms?
20 A. It would have been nice to have another
21 family bathroom upstairs. There was only two full
22 baths upstairs.
23 Q. In your experience how many baths do people
24 looking for homes in Lake Forest expect with a house
L.A. REPORTING (312) 419-9292
1359
1 the size of the Rotis?
2 A. Well, they would like to have three family
3 bathrooms upstairs.
4 Q. In terms of your personal experience at the
5 Roti property how often did you hear noise?
6 A. Well, just about the majority of the time
7 when you would go on the property you could hear noise.
8 Q. Could you tell us where the noise came from
9 that you remember hearing?
10 A. I --
11 Q. Yes or no? I think you to have answer that
12 question, then I'll ask you another.
13 A. Yes, I can try. I can tell you where I'm
14 assuming it was coming from, yes.
15 Q. Well, I'm asking back at the time when you
16 were there in '96 did you know where the noise was
17 coming from that you heard?
18 A. Yes.
19 Q. Well, as you recall you gave your deposition
20 in March 1999, correct?
21 A. Uh-huh.
22 Q. Right?
23 A. Yes.
24 Q. And you don't have a copy of your transcript,
L.A. REPORTING (312) 419-9292
1360
1 right?
2 A. I have never seen a copy of it.
3 Q. So you don't remember exactly what you said
4 in that transcript, right? Is that accurate?
5 A. Yes, that's accurate. I mean, hopefully it
6 would be the same answers that I'll give you today.
7 Q. I understand. I'm not staying you're doing
8 anything improper.
9 As of -- strike that.
10 March 19, 1999, that sounds like about the
11 date that you gave your deposition?
12 A. Yes.
13 Q. Okay. And as of the date of the deposition
14 were you able in your mind to distinguish between noise
15 that would come from the office building to the south,
16 noise that might be coming from the LTD facility, and
17 noise that was coming from the tollway?
18 A. Was I asked that question?
19 Q. Do you recall if you were asked that
20 question?
21 A. I don't think I was ever asked that question.
22 Q. Let me show you Page 37 starting at Line 15.
23 Read Line 15 to the end there and see if you recall
24 being asked that question by Mr. Kaiser.
L.A. REPORTING (312) 419-9292
1361
1 (Pause in proceedings.)
2 BY MR. KOLAR:
3 Q. Is your memory now refreshed?
4 A. Yes.
5 Q. You were asked that question?
6 A. Okay.
7 Q. Right?
8 A. Yes, I was.
9 Q. So as of the date of your deposition you
10 could not distinguish between where the noise was
11 coming from that you heard on the Roti property,
12 correct?
13 A. Correct, because it was noise. I didn't go
14 look to see where the noise was coming from.
15 Q. It was just noise?
16 A. It was just noise.
17 Q. It was just loud?
18 A. Very loud at times.
19 Q. And it was just noise and it was just loud in
20 the summer months of June and July 1996?
21 A. Yes.
22 Q. August 1996?
23 A. August, right.
24 Q. It just seemed to be loud whenever you were
L.A. REPORTING (312) 419-9292
1362
1 there?
2 MR. KAISER: Objection.
3 HEARING OFFICER KNITTLE: Yes, Mr. Kaiser.
4 MR. KOLAR: I'll withdraw that question.
5 I don't have any further questions for Ms.
6 Rowley. Thank you.
7 THE WITNESS: Uh-huh.
8 HEARING OFFICER KNITTLE: Ms. Kaiser -- Mr.
9 Kaiser, do you have cross examination?
10 MR. KAISER: Yes. Thank you.
11 HEARING OFFICER KNITTLE: I didn't mean to slur
12 your masculinity there, Mr. Kaiser.
13 MR. KOLAR: Actually I had one more question. I
14 said I didn't, but --
15 HEARING OFFICER KNITTLE: Mr. Kaiser, do you
16 object to letting Mr. Kolar have one more go here?
17 MR. KAISER: No.
18 HEARING OFFICER KNITTLE: Go ahead, Mr. Kolar.
19 BY MR. KOLAR:
20 Q. As you sit here today do you recall Tony Roti
21 ever saying to you, Marcia or Ms. Rowley, do I need to
22 disclose noise to any of these prospective buyers?
23 A. I never recall having any kind of
24 conversation like that with Tony.
L.A. REPORTING (312) 419-9292
1363
1 MR. KOLAR: Thank you. I don't have anything
2 else.
3 HEARING OFFICER KNITTLE: Mr. Kaiser.
4 MR. KAISER: Thank you.
5 CROSS EXAMINATION
6 BY MR. KAISER:
7 Q. About how many times did you talk with Tony
8 Roti?
9 A. Maybe once.
10 Q. Maybe once.
11 During the course of that conversation you
12 don't recall whether he asked you whether he had to
13 disclose to prospective purchasers the noise from LTD's
14 dock area, is that your testimony?
15 A. I don't recall us having that conversation at
16 all.
17 Q. All right. You're not denying or
18 contradicting Mr. Roti if he said that he had that
19 conversation, are you?
20 A. Denying that he said that to me?
21 Q. Yes.
22 A. It was four years ago. I don't remember him
23 ever saying that to me.
24 Q. All right. So you don't recall that?
L.A. REPORTING (312) 419-9292
1364
1 A. No, I don't recall him ever saying that to
2 me.
3 Q. All right. Do you recall how long this one
4 conversation you had with Mr. Roti lasted?
5 A. Yes.
6 Q. How long did it last?
7 A. About 45 minutes.
8 Q. Where did it take place?
9 A. At the hockey rink.
10 Q. In which community?
11 A. Highland Park.
12 Q. Do you recall everything that was said
13 between you and Mr. Roti during that 45 minute
14 conversation at the Highland Park hockey rink?
15 A. Every word, no.
16 Q. Every subject that was discussed?
17 A. I remember the subject that -- I was giving
18 him the market evaluation of his home there during
19 hockey practice or something during a game.
20 Q. Was one of your children engaged in hockey
21 practice?
22 A. Both of our children.
23 Q. Is it fair to say you were talking business
24 and watching what was going on on the rink?
L.A. REPORTING (312) 419-9292
1365
1 A. We weren't watching what was going on.
2 Q. You have seen enough hockey practices in your
3 life to --
4 A. Right.
5 Q. All right. Other than the summer months,
6 June, July, August, September of 1996 have you ever
7 been out to the Roti residence?
8 A. During those --
9 Q. You were there during those months, June,
10 July, August, September of 1996?
11 A. Yes.
12 Q. Have you been there since then?
13 A. On the property?
14 Q. Yes.
15 A. I have not actually been to their house since
16 I have lost the listing in March of '97.
17 Q. March of '97 would have been the last time?
18 A. I have been in the area but not at their
19 house, right at their house.
20 Q. Did you ever go back to their house or to the
21 area for the purposes of gathering more information in
22 preparation for your deposition testimony or for the
23 hearing today?
24 A. Back to that property?
L.A. REPORTING (312) 419-9292
1366
1 Q. Yes.
2 A. Not that I recall, no.
3 Q. All right. During September, October,
4 November, December of 1997 do you know what noise
5 levels were like at the Roti residence between the
6 hours of 6 p.m. and 12 -- 11:59 p.m. Monday through
7 Friday?
8 A. You said '97, I was never there in the fall
9 of '97.
10 Q. So you have no information about noise levels
11 at the Roti property during that time frame, 1997?
12 A. Not after March of '97.
13 Q. And, similarly, you have no information or no
14 ability to tell the Board anything about noise
15 conditions at the Roti property in 1998?
16 A. No.
17 Q. And you can't tell the Board whether LTD was
18 noisy or quiet during the fall and early winter of
19 1999, can you?
20 A. No.
21 Q. Do you have any reason to doubt or call into
22 question Karen Roti's testimony that LTD's dock
23 operations disturb her while she's in her home with the
24 windows closed during the evening hours?
L.A. REPORTING (312) 419-9292
1367
1 A. Say that again, please.
2 MR. KAISER: Read that back.
3 MR. KOLAR: Objection. It's an improper question
4 for her to I guess rule on the credibility of Karen
5 Roti's testimony I think is what he's in fact doing.
6 MR. KAISER: Well, he asked the question: "Did
7 Karen Roti ever tell you it's noisy at night?" with the
8 implication being, and the argument I can anticipate in
9 LTD's response brief, in 1996 when Karen Roti listed
10 her house she never even told the realtor, it wasn't a
11 problem in '96.
12 Now Karen has told us it was loud in '96.
13 HEARING OFFICER KNITTLE: I agree though with Mr.
14 Kolar. I don't know if it's proper for this witness to
15 comment past whether or not she heard from Ms. Roti
16 whether there was a noise a problem. You're asking her
17 to speculate whether there was a problem with Ms. Roti.
18 BY MR. KAISER:
19 Q. Ms. Rowley, did you ever ask Karen Roti
20 whether noise from LTD's dock operations interfered
21 with her use and enjoyment of her property?
22 A. I had no reason to ever ask her about noise
23 from there.
24 Q. So you never asked her?
L.A. REPORTING (312) 419-9292
1368
1 A. I never asked her. I had no reason to ask
2 her.
3 Q. During the course of your 45 minute
4 conversation with Tony Roti did you ever ask him
5 whether noise from LTD's dock operations interfered
6 with his use of enjoyment?
7 A. I had no reason to ask him that question.
8 Q. So is your answer no that you never asked
9 them?
10 A. I have never asked them about that noise from
11 LTD operations.
12 HEARING OFFICER KNITTLE: Can you hold on a
13 second, ma'am?
14 THE WITNESS: Yes.
15 HEARING OFFICER KNITTLE: Do you guys know who
16 this is?
17 MR. KOLAR: I don't know. Who is that?
18 MR. KAISER: Mr. Kracower, the witness for the
19 afternoon.
20 HEARING OFFICER KNITTLE: Sir, is your name Mr.
21 Kracower?
22 MR. KRACOWER: Yes.
23 MR. KAISER: We don't need to exclude him. I have
24 no problem with him being here.
L.A. REPORTING (312) 419-9292
1369
1 HEARING OFFICER KNITTLE: Have a seat then, sir.
2 You can proceed, Mr. Kaiser. Sorry to
3 interrupt.
4 BY MR. KAISER:
5 Q. Have you ever driven up Lakeside Drive and
6 into the parking lot at the north end of LTD's dock
7 operations?
8 A. No, never.
9 Q. Which part of Lake Forest do you live in?
10 A. I live east of 41.
11 Q. And --
12 A. North of Westlake.
13 Q. And west of the railroad tracks?
14 A. Which railroad tracks? There is three sets.
15 Q. The Chicago Northwestern railroad tracks by
16 Deerpath.
17 A. No, I live west of those tracks.
18 Q. West of those tracks but east of Highway 41?
19 A. Correct.
20 Q. Thank you.
21 Have you ever lived in the vicinity of a
22 warehouse and loading dock operation?
23 A. No.
24 Q. Have you ever shown property to people in the
L.A. REPORTING (312) 419-9292
1370
1 vicinity of a warehouse and loading dock operation?
2 A. Specifically a warehouse and loading dock?
3 Q. Yes.
4 A. Okay. Ask that question again.
5 Q. Have you ever shown prospective purchasers
6 residential property which was in the vicinity of a
7 warehouse and dock operation?
8 A. I believe I showed the Roti property.
9 Q. All right. Fair enough. So you showed that.
10 But any others besides the Roti property?
11 A. Not that I can immediately recall, no.
12 Q. Now, you have been in real estate for nine
13 years, right?
14 A. Uh-huh.
15 Q. Do you think, on the basis of your nine years
16 experience, and over that course of the nine years --
17 well, how many people did you show the Roti home to?
18 A. Over 60.
19 Q. And I take it -- and you ask the people and
20 try to get feedback from them as to what they like and
21 don't like about the homes, right?
22 A. Right.
23 Q. And is it fair to say you have had thousands
24 of conversations over the last nine years with
L.A. REPORTING (312) 419-9292
1371
1 prospective purchasers of residential property about
2 what they like and don't like?
3 A. I don't know about thousands but hundreds.
4 Q. Certainly hundreds?
5 A. Yes.
6 Q. All right. Based on your experience do you
7 have an opinion as to whether a prospective purchaser
8 of somebody like the Rotis' home would make a
9 distinction between a loading dock that operated only
10 five days a week between the hours of 6 a.m. and 4 p.m.
11 and a loading dock which operated five and a half days
12 a week between the hours of 6 a.m. and 1:30 or 2 a.m.
13 in the morning?
14 MR. KOLAR: Objection, beyond the scope.
15 THE WITNESS: It was a long question.
16 MR. KAISER: Could you read it back, Madam Court
17 Reporter.
18 HEARING OFFICER KNITTLE: Let me check what he
19 talked about on the record.
20 (Pause in proceedings.)
21 HEARING OFFICER KNITTLE: I can't say for sure
22 whether it's beyond the scope. I'm going to allow the
23 question. Maybe you could make it -- well, you can
24 read it back for her.
L.A. REPORTING (312) 419-9292
1372
1 (Record read as requested.)
2 HEARING OFFICER KNITTLE: Ma'am, do you understand
3 that question?
4 THE WITNESS: I think I do.
5 HEARING OFFICER KNITTLE: Okay. Answer to the
6 best of your ability.
7 THE WITNESS: To the best of my ability in my
8 opinion someone who's looking at that house isn't going
9 to know, by looking at it, when it operates. I mean,
10 they're just going to see a building there. All
11 they're going to see is a building.
12 BY MR. KAISER:
13 Q. But if they were made aware of the fact that
14 the dock, instead of closing at 3:30 or 4 in the
15 afternoon, ran a second shift, which continued until
16 12:30, 1, 1:30 in the morning, continuous operation
17 between 6 a.m. and 1 or 1:30 in the morning, do you
18 think that would make a difference to a prospective
19 purchaser?
20 A. Okay. In my opinion it would, but I was
21 never made aware of any issues there. So if someone
22 asked me I could never have told them because the Rotis
23 never told me there was a problem that I can recall
24 with loading facilities there.
L.A. REPORTING (312) 419-9292
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1 Q. I understand. But, as I understood, your
2 testimony now is, yes, that information would make a
3 difference to a prospective purchaser?
4 A. If I knew it and it was asked, I would have
5 to share it. Yes, it would make a difference.
6 Q. And is it fair to say that the difference
7 would be the prospective purchaser would be less likely
8 to purchase the home if they knew the dock was
9 operating from 6 a.m. in the morning until 1 or 2 a.m.
10 the following morning as opposed to a dock that they
11 knew would close at 3:30 or 4 in the afternoon?
12 A. That's a tough question. I mean --
13 Q. I mean, I don't want to push you beyond where
14 you feel comfortable. If you don't have anything, then
15 we can just --
16 A. You know, I can't -- I'm sure if someone
17 thought it was going to run all night, it might make
18 some influence on whether they purchased the house, but
19 it also depends on if the house was priced to reflect
20 that issue.
21 Q. And the house would have to be reduced in
22 price, wouldn't it, to reflect the operations into the
23 night and early morning?
24 A. It should be. It should reflect it, but I
L.A. REPORTING (312) 419-9292
1374
1 did not know about those issues.
2 Q. I understand. If you had known though --
3 it's a hypothetical question. If you had known that
4 information, if in fact we demonstrated through the
5 record here that LTD did operate from 6 in the morning
6 until 1 or 2 in the morning, that's something that the
7 price should reflect, shouldn't it?
8 A. Right, but I never priced this house, Mr.
9 Roti priced this house.
10 Q. I understand. I'm simply asking you that
11 that would be a factor that you would take into
12 consideration in pricing the house, wouldn't you?
13 A. Yes.
14 Q. And the way you would -- the effect it would
15 have on the price is that if LTD operated late into the
16 night and into the early morning, the price of the Roti
17 home should go down, right?
18 A. Yes.
19 MR. KAISER: Thank you. No further questions.
20 MR. KOLAR: I have a few questions.
21 HEARING OFFICER KNITTLE: Mr. Kolar.
22 REDIRECT EXAMINATION
23 BY MR. KOLAR:
24 Q. So Ms. Rowley, as a realtor you rely on the
L.A. REPORTING (312) 419-9292
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1 sellers to be forthcoming with you regarding the
2 amenities for their property and any maybe negative
3 influences?
4 A. Correct.
5 Q. And you were relying on the Rotis to be
6 forthcoming to you regarding any negative influences on
7 their property?
8 A. Correct.
9 Q. Would you agree that, generally speaking,
10 when prospective buyers come to the Roti house, you
11 could generally classify them into two groups, you're
12 going to have one group that says, "I may be willing to
13 live next to a truck operation, commercial building and
14 a tollway" and another group will just say, "I don't
15 want anything to do with this location"?
16 A. I guess you could classify them that way.
17 Q. You would agree with that generally?
18 A. Yes.
19 Q. Would you agree that if the north half of the
20 LTD building, with all the truck docks that existed in
21 1987, and there was no home on the Roti property, the
22 Rosenstrock property or Weber property, that at that
23 point in time the market would take into consideration
24 the presence of LTD in setting a value for those lots?
L.A. REPORTING (312) 419-9292
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1 A. Wait. It was there in '87?
2 Q. Let me break it down. Assume in 1987 we have
3 the tollway in existence, correct?
4 A. Correct.
5 Q. And in 1987 we have the north half of the LTD
6 building with all the truck docks in existence, okay?
7 A. Okay.
8 Q. And assume we have Corporate 100 with its
9 parking lot in existence, all right?
10 A. Yes.
11 Q. So then if we have a developer in Lake Forest
12 to the north that wants to subdivide this whole
13 property, at that point in time would you agree that
14 the market is going to take into consideration
15 Corporate 100, LTD and the tollway in setting the value
16 of the lots closest to those influences?
17 A. Yes.
18 Q. And then that influence would be that the
19 lots closest to LTD, Corporate 100 and the tollway
20 would be worth less than lots away from those
21 influences?
22 MR. KAISER: Objection, leading.
23 THE WITNESS: Correct.
24 HEARING OFFICER KNITTLE: I'd sustain that. She's
L.A. REPORTING (312) 419-9292
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1 already answered but --
2 MR. KAISER: So strike the answer.
3 HEARING OFFICER KNITTLE: Is that what you're
4 asking, Mr? Kaiser.
5 MR. KAISER: Yes.
6 HEARING OFFICER KNITTLE: I will grant your motion
7 to strike and ask Mr. Kolar to rephrase the question.
8 BY MR. KOLAR:
9 Q. What would be the influence of LTD, Corporate
10 100 and the tollway on the lots immediately to the
11 north in terms of setting a price on those versus lots
12 farther north away from those influences.
13 A. The lots on the south side of Wedgewood would
14 be priced less than on the north side of Wedgewood or
15 further north.
16 In fact, in my market analysis I gave to Mr.
17 Roti, I had told him that the houses on the north side
18 sell better that the houses on the south side.
19 Q. Then that influence -- would that influence
20 continue on as long as -- strike that.
21 Would that impact on the value of the Roti,
22 Rosenstrock, Weber houses would that just continue on
23 into the future as long as you had a tollway, LTD and
24 Corporate 100?
L.A. REPORTING (312) 419-9292
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1 A. Yes, I believe so.
2 MR. KOLAR: I don't have anything else.
3 HEARING OFFICER KNITTLE: Do you have any recross,
4 Mr. Kaiser?
5 MR. KAISER: Yes, briefly.
6 RECROSS EXAMINATION
7 BY MR. KAISER:
8 Q. Do you know whether the West Deerfield
9 Township assessor makes a distinction when he or she
10 values properties within the -- is this the Oak Knoll
11 subdivision?
12 A. I don't remember exactly.
13 Q. Within the subdivision in which the Roti,
14 Weber and Rosenstrock's homes are located, do you know
15 whether the West Deerfield Township assessor
16 distinguishes in value between the homes located south
17 of Wedgewood Drive and those located north of Wedgewood
18 Drive?
19 A. I don't know.
20 MR. KOLAR: Objection, beyond the scope of my
21 redirect.
22 MR. KAISER: We just heard about sale prices north
23 of Wedgewood, the value north of Wedgewood, it's
24 directly germane.
L.A. REPORTING (312) 419-9292
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1 HEARING OFFICER KNITTLE: I'm going to sustain the
2 objection. I don't think we covered what the assessor
3 feels or doesn't feel on redirect. We did not cover
4 that, Mr. Kaiser.
5 MR. KAISER: We talked about, Mr. Knittle,
6 opinions on value.
7 HEARING OFFICER KNITTLE: We did talk about this
8 witness' views of value and nothing else.
9 BY MR. KAISER:
10 Q. Ms. Rowley, do you know whether back in 1987
11 LTD operated the docks at the north end of its property
12 in Bannockburn, Illinois during September, October,
13 November and December of 1987, five days a week until
14 midnight or beyond?
15 A. I don't know that answer.
16 Q. And frankly you don't know really anything
17 about whether LTD's dock operations have increased or
18 decreased since 1987, do you know?
19 A. I don't know anything about their operations.
20 MR. KAISER: Thank you. I have no further
21 questions.
22 MR. KOLAR: I have no questions.
23 HEARING OFFICER KNITTLE: Thank you, ma'am. You
24 can step down.
L.A. REPORTING (312) 419-9292
1380
1 MR. KOLAR: Thanks for your time.
2 HEARING OFFICER KNITTLE: We're going to go take a
3 lunch break. Let's go off the record.
4 (Lunch break.)
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24
L.A. REPORTING (312) 419-9292
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1 A F T E R N O O N S E S S I O N
2 MR. KAISER: On the record, Mr. Kolar, still your
3 case.
4 MR. KOLAR: LTD would call Allen Kracower as a
5 witness.
6 HEARING OFFICER KNITTLE: Could you swear him in.
7 (Witness sworn.)
8 HEARING OFFICER KNITTLE: Mr. Kolar.
9 Allen Kracower,
10 called as a witness herein, having been first duly
11 sworn, was examined and testified as follows:
12 DIRECT EXAMINATION
13 BY MR. KOLAR:
14 Q. Would you state your name for the record,
15 please?
16 A. Allen Kracower, K-r-a-c-o-w-e-r.
17 Q. Where do you live?
18 A. I reside at 1111 Elm Road, Lake Forest,
19 Illinois.
20 Q. Is that east or west of 294?
21 A. West -- it's unincorporated Lake Forest Post
22 Office but west of 294.
23 Q. About how far from the LTD site as the way a
24 crow flies?
L.A. REPORTING (312) 419-9292
1382
1 A. As the way a crow flies I would say somewhere
2 around three miles, if that.
3 Q. How long have you lived in Lake County?
4 A. I have lived in the county for approximately
5 30 years.
6 Q. What do you do for a living?
7 A. I'm a land planning and zoning consultant and
8 landscape architect.
9 Q. Where is your office located?
10 A. 100 Lexington Drive, Buffalo Grove, Illinois.
11 Q. What's the name of the company that you're
12 associated with?
13 A. It is Allen L. Kracower & Associates, Inc.
14 Q. That's you in the name?
15 A. My name is in the name, yes.
16 Q. Okay. How many years has that firm been in
17 existence?
18 A. I started the company approximately 30 years
19 ago, a little over 30 years.
20 Q. How long have you been in the business of
21 land planning consultation?
22 A. My whole career spans a period of
23 approximately -- in the range of 36 years.
24 Q. And you were hired by LTD Commodities
L.A. REPORTING (312) 419-9292
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1 concerning this noise complaint, correct?
2 A. Yes.
3 Q. What's your hourly rate for working for LTD
4 Commodities?
5 A. $285 per hour.
6 Q. And is that consistent with the rate you
7 would charge other private clients?
8 A. Yes.
9 Q. Is your compensation in any way contingent on
10 your testimony and participation in this case?
11 A. No.
12 Q. And you thought you were going to testify
13 last November, correct?
14 A. That's correct.
15 Q. And did you prepare at that time as though
16 you were going to testify in that first week of
17 November?
18 A. Yes, I did.
19 Q. Then you learned that we weren't going to get
20 to you, correct?
21 A. That's correct.
22 Q. So did you have to prepare once again here in
23 May 2000?
24 A. Yes.
L.A. REPORTING (312) 419-9292
1384
1 Q. And as you sit here today do you know how
2 much you have charged LTD?
3 A. No, I don't.
4 Q. Regardless, it would include two preparations
5 because of the hearing being continued?
6 A. That's correct.
7 Q. And have you and I ever worked together on
8 another matter?
9 A. Not that I recall. It's been pleasurable
10 this time but I don't recall a previous occasion.
11 Q. What's your education after high school?
12 A. I have a Bachelor of science degree from the
13 University of Wisconsin, a major in landscape
14 architecture. And then I have another one, I have a
15 Master of science degree also from the University of
16 Wisconsin. I forgot.
17 Q. What's that one in?
18 A. That was a mixture of majors in planning.
19 The predominant one was still landscape architecture.
20 Q. What type of services do you provide as a
21 land planner or through Allen L. Kracower & Associates?
22 A. They're relatively diverse. Our office
23 provides services to local levels of government,
24 municipalities, counties in the area of comprehensive
L.A. REPORTING (312) 419-9292
1385
1 planning, zoning, subdivision control. We review
2 development plans, when asked to, and render advice to
3 government generally in the area of regulatory controls
4 inclusive of zoning. In addition to that, then in the
5 private sector we work with builders, developers in
6 designing housing developments or office developments.
7 There is a wide range of things ranging all the way to
8 gravel sites and landfill sites. Then, in addition to
9 that, we do real estate consulting advising normally
10 private property owners, financial institutions, and
11 trusts relative to the highest and best use of their
12 property. And then, lastly, we also have a very large
13 landscape architectural component.
14 Q. You mentioned comprehensive plan, what is
15 that for the record?
16 A. Comprehensive plan is a document undertaken
17 by a local level of government, like a village or a
18 city or a county, that sets forth its goals and its
19 aspirations as to what it wants to be, how it wants to
20 grow, the type of changes that it would like to see
21 take place. Their document is authorized under State
22 statute for local levels of government in the State of
23 Illinois.
24 Q. Can you recall every municipality you have
L.A. REPORTING (312) 419-9292
1386
1 ever worked for in terms of as a land planner or
2 consultant?
3 A. No, I cannot.
4 Q. Do you have them listed in your CV?
5 A. Yes, most of them.
6 Q. Would these be municipalities that you have
7 worked for?
8 A. Yes.
9 Q. So would the municipalities that you have
10 worked for include Addison, Batavia, Bensenville,
11 Bloomingdale, Blue Island and Boca Raton, Florida?
12 A. Those are some of them, yes.
13 Q. And others would include Buffalo Grove?
14 A. Yes.
15 Q. Burr Ridge?
16 A. Yes.
17 Q. Carpentersville?
18 A. Yes.
19 Q. Cicero?
20 A. Yes.
21 Q. Darien, Illinois?
22 A. Yes.
23 Q. Des Plaines?
24 A. Yes.
L.A. REPORTING (312) 419-9292
1387
1 Q. Let me list a few more before you say, "Yes."
2 Have you also worked for Elk Grove Village,
3 Fox River Grove, Gilberts, Glenview, Hanover Park,
4 Harwood Heights, Hazel Crest, Hickory Hills, Highland
5 Park, Hinsdale?
6 A. Yes to all of those.
7 Q. Have you worked for the Illinois Attorney
8 General?
9 A. Yes.
10 Q. In what capacity?
11 A. As an expert in highest and best use study
12 and testimony in matters pertaining to eminent domain
13 litigation.
14 Q. Have you worked for the Du Page Airport
15 Authority?
16 A. Yes.
17 Q. Du Page County Illinois Regional Planning
18 Commission?
19 A. Yes.
20 MR. KAISER: Objection, cumulative.
21 HEARING OFFICER KNITTLE: Mr. Kolar, do you have
22 any that you want to hit in particular?
23 MR. KOLAR: Well --
24 HEARING OFFICER KNITTLE: As far as I can tell
L.A. REPORTING (312) 419-9292
1388
1 we're only on "I."
2 MR. KOLAR: Okay. I don't need to go on.
3 BY MR. KOLAR:
4 Q. Besides those have you worked from other
5 municipalities?
6 A. Yes.
7 Q. Approximately how many municipalities do you
8 think you have worked for as a land planner?
9 A. I would guess somewhere between 40 or 50.
10 Q. And in working for those municipalities,
11 would that be performing services that you described
12 for us earlier?
13 A. Some are difficult to remember as you were
14 going over them, but generally they were for
15 comprehensive planning, zoning, site plan review,
16 general consultation on land development policies,
17 subdivision control. Each one was a little bit
18 different, but the answer to your question would be
19 yes.
20 Q. What about private sector clients that you
21 have been involved with, some of the major ones that
22 you can recall?
23 A. Well, the closest to the village hall that
24 we're in today would be the Greg's Landing or the Cuneo
L.A. REPORTING (312) 419-9292
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1 estate which was a 1,500 acre property. I was
2 responsible for the land planning, the zoning and all
3 of the landscape architecture. I have worked also --
4 nearby would be Lake Forest for the Sunset Food chain
5 doing real estate consulting. And I did part of the
6 land planning, and I think we did all the landscape
7 architecture on their store, their shopping center in
8 Lake Forest. I worked for McDonald's in that same
9 area.
10 Q. In Lake Forest?
11 A. In Lake Forest.
12 Q. The one that doesn't look like a McDonald's?
13 A. The one that looks so nice, yes.
14 HEARING OFFICER KNITTLE: The one that doesn't
15 have a drive-in window?
16 THE WITNESS: Now it does because the sales
17 achieved a certain level so that they now are able to
18 drive through. In fact I broke my diet the other day
19 and drove through. That's the only reason I know it's
20 open.
21 HEARING OFFICER KNITTLE: Thank you, sir.
22 THE WITNESS: I have worked on projects in Buffalo
23 Grove. We have done numerous communities in the Lake
24 County area, at least, you know, three, four, five. I
L.A. REPORTING (312) 419-9292
1390
1 have -- I was mentioning before I represent the Brach
2 foundation and their properties, their hundreds of
3 acres, the Rice estate which was 1,500 acres. There is
4 just many. I have designed and worked on these for so
5 many years, it's hard to recall all of them.
6 BY MR. KOLAR:
7 Q. Going back to municipalities, have you been
8 the village planner so to speak by contract for certain
9 municipalities?
10 A. Yes, I have.
11 Q. Can you name a few of those?
12 A. I was in Round Lake Beach which is north of
13 here up until about a year or two ago, we're not any
14 longer. We were recently retained by the Village of
15 Gilberts, which is out in McHenry County. For a number
16 of years, about 12 years, I was the village planner for
17 the Village of Bloomingdale which is out in Du Page
18 County. Many of the ones that you read off -- in fact
19 in most instances, there were some exceptions, we
20 served -- or I served as the village planner where I
21 went attended their meetings and assisted them.
22 Q. Are you a member of any land planning
23 organizations?
24 A. I belong to the American Planning
L.A. REPORTING (312) 419-9292
1391
1 Association, the American Association of Consulting
2 Planners -- I'm not quite sure what those initials
3 are -- and the American Society of Landscape
4 Architects.
5 Q. Have you ever lectured regarding land
6 planning issues, land consultation?
7 A. Yes, I have.
8 Q. Where at?
9 A. I have lectured at Northwestern University,
10 they have a graduate school in real estate. I lectured
11 before the Attorney General's Office. Every -- this is
12 about two or three years ago, they have an educational
13 seminar for attorneys on eminent domain. I have
14 lectured in the Department of Urban Geography at
15 Carthage College. And I have given numerous speeches
16 before planning commissions and other public bodies
17 throughout the years.
18 Q. Where did you work as a land planner before
19 starting Allen Kracower & Associates?
20 A. I worked with the United States Department of
21 Housing and Urban Development.
22 Q. HUD?
23 A. HUD.
24 Q. What did you do there?
L.A. REPORTING (312) 419-9292
1392
1 A. I served as the special assistant to the
2 administrator, and I was stationed in Chicago and
3 responsible, along with three other specials and the
4 administrator, for administration of the agency's
5 programs throughout the Midwestern sector of the United
6 States.
7 Q. And have you testified as a land planner in
8 courts or in administrative hearings?
9 A. Yes.
10 Q. Can you name some courts that you testified
11 in?
12 A. I have testified as an expert in this county,
13 Lake County, Will County, Kane County, McHenry County,
14 Cook County, Du Page County, Dekalb County. I think
15 there may be some others, but those are the ones that I
16 can recall.
17 Q. Have you ever testified before the
18 Environmental Protection Agency or in an E.P.A. matter
19 or Pollution Control Board matter?
20 A. I have, yes.
21 Q. Are you familiar with the LTD property in
22 Bannockburn?
23 A. Yes, I am.
24 Q. And did you have a familiarity with that
L.A. REPORTING (312) 419-9292
1393
1 property before working on this project?
2 A. Yes, I did, but more I would say in a
3 generalized sense because I live in the area and I have
4 been in the industrial park before and driven by it.
5 So my knowledge prior to this assignment was more of
6 a -- I think a generalized knowledge rather than a very
7 specific knowledge.
8 Q. And just generally, relative to this project,
9 what was the nature of your assignment?
10 A. It was to basically evaluate the subject
11 property from a land use perspective and, based on my
12 profession, to make a determination as to the
13 compliance of the subject property in terms of the
14 SLUCM code or the standards, environmental pollution
15 control standards that would govern complainants'
16 requests such as noise. And I generally looked at
17 several criteria that I felt related to land use to
18 make that determination. One of those would be the
19 classification where there was A, B, C, D. Another was
20 to generally make a general determination as to whether
21 or not this property had any economic significance or
22 social significance in the context of its geographic
23 area and to ultimately determine if there was any
24 significant adverse impact to the -- you know, the
L.A. REPORTING (312) 419-9292
1394
1 community as a whole.
2 Q. And, in terms of your job, at some point I
3 had basically showed you the Section 33(c) factors from
4 the Environmental Protection Act and asked what, if
5 anything, you could investigate further from LTD's
6 perspective?
7 A. Yes.
8 Q. About how many times have you been to the LTD
9 property for this?
10 A. Up until this, I would say five times as of
11 today.
12 Q. Have you been inside the warehouse building?
13 A. Yes.
14 Q. When were you last at the LTD property?
15 A. I was there yesterday.
16 Q. And when you were inside the building did you
17 receive a tour?
18 A. Yes, I did.
19 Q. And Jack Voigt do you recall gave you that
20 tour?
21 A. Yes. Mr. Voigt gave me a tour of almost all
22 the building.
23 MR. KAISER: Foundation, please. Are we talking
24 about yesterday's visit or the first visit?
L.A. REPORTING (312) 419-9292
1395
1 BY MR. KOLAR:
2 Q. When was it that you received a tour from Mr.
3 Voigt?
4 A. That was my first visit to the property back
5 in 19- -- I would say the latter part of 1999, in that
6 in time frame.
7 Q. And generally in the nonoffice part of the
8 building what did you see on your tour?
9 A. Certain storage of materials of various types
10 that are -- the best way I can describe them is they
11 are portrayed in a variety of catalogs. There are
12 hundreds of different things, so it would be difficult
13 to describe each one. Then I noticed predominantly
14 packaging and crating people were essentially taking
15 items off of shelves, packing them into boxes, sealing
16 boxes, taking the boxes, moving them off to the freight
17 area, and loading them on trucks.
18 Q. Did you see any conveyer belts?
19 A. Yes.
20 Q. And what were those used for generally?
21 A. It was movement of boxes and goods. There
22 were packing materials, quite a significant labor
23 supply, assembling, packaging, crating, taking the
24 products, making them ready for transport to whatever
L.A. REPORTING (312) 419-9292
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1 location they were going to.
2 Q. And on any of your visits did you see the
3 trucking operations in terms of its truck staging area?
4 A. Yes.
5 Q. And you walked around outside?
6 A. On all of my visits I drove through and/or
7 walked.
8 Q. Did you visit the complainants' properties to
9 the north?
10 A. I did.
11 Q. How did you do that?
12 A. I did it in two ways. I drove my car to the
13 back of the property -- to what I would call the back
14 of LTD's property line. There is a hedge row back
15 there and fence. I parked my car on a couple occasions
16 and stood in the back along the fence because I felt
17 that generally approximated the boundaries between the
18 residential core to the north or the industrial type or
19 LTD property to the south. I then inspected the front
20 of the plaintiffs' property by parking my car in the
21 street, I think it's Wedgewood Street, and then I would
22 either put my windows down 'cause I was interested in
23 noise and/or on a couple of occasions I got out and I
24 walked back and forth along the front property line,
L.A. REPORTING (312) 419-9292
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1 which would be the street cross section, so that I
2 could hear anything that was going on at that
3 particular time. So that way I was able to hear noise
4 in the front property line and noise on the back
5 property line, which from a land planning or land use
6 perspective was adequate.
7 Q. What was your personal experience regarding
8 noise when you were on Wedgewood by the complainants'
9 properties?
10 MR. KAISER: Objection, relevance and lack of
11 disclosure.
12 HEARING OFFICER KNITTLE: Mr. Kolar.
13 MR. KAISER: It's not relevant to his opinion that
14 he's going to offer here today and it's never been
15 disclosed that he was going to render observations
16 about noise or the qualities of noise.
17 MR. KOLAR: Well, he's got an opinion regarding
18 the Section 33(c) factor which is since located at a
19 major commercial business interchange. LTD's
20 operations does not interfere with the health and
21 general welfare and physical property of the people,
22 and it's not -- well, it's not an opinion, number one,
23 he's here as a land planner regarding suitability of
24 the LTD site and classification of the LTD site. I
L.A. REPORTING (312) 419-9292
1398
1 think it's --
2 HEARING OFFICER KNITTLE: Does his opinion that
3 you disclosed reference the 33(c) factors you just
4 enumerated?
5 MR. KOLAR: No, but I can pretty much quote them
6 verbatim the disclosed opinions. This is what was
7 given to Mr. Kaiser. I do have it marked as an
8 exhibit. This is my copy but --
9 HEARING OFFICER KNITTLE: Mr. Kaiser, if it
10 references the 33(c) factors, I can see that the
11 suitability of the environment and LTD in that
12 environment are proper terms of disclosure. I know
13 that doesn't make a lot of sense, but I'm going to over
14 the objection.
15 MR. KAISER: That's fine.
16 HEARING OFFICER KNITTLE: It's too close to after
17 lunch for me to make large amounts of sense.
18 Mr. Kolar, you can proceed.
19 BY MR. KOLAR:
20 Q. What was your personal experience on your
21 visits on Wedgewood regarding noise?
22 A. In terms of noise, and I did not measure it
23 by machine, I'm not qualified in that area, but I
24 observed it because it's part of my land use analysis
L.A. REPORTING (312) 419-9292
1399
1 and part of the foundation at least to a nominal
2 degree. The noise that I heard was tollway noise in
3 the front. On none of the occasions that I was there
4 did I hear any noise that I would consider to be truck
5 noise such as I did hear when I was on the LTD
6 property. There I heard trucks backing up and beeping.
7 I heard engines running. But what I heard on the
8 street or at the curb line was predominantly -- and I
9 want to call it the roar of traffic from the Tri-State
10 toll road which I'm quite familiar with 'cause I hear
11 it at my home, it was a similar type of noise but much
12 stronger and louder than where I live. I live about
13 one mile from the tollway.
14 Q. One mile west of the tollway?
15 A. One mile west. And these homes, if you look
16 at that aerial photograph, which is exhibit -- I don't
17 know.
18 Q. 89.
19 A. Exhibit 89. And if one inch equals 100
20 feet -- I'm just going to estimate -- there are about
21 12 inches here, so you're about 1,200 feet less than,
22 you know, a quarter of a mile, and you would anticipate
23 the noise would be louder. So that's what I observed
24 in terms of generalized sounds from the frontage of the
L.A. REPORTING (312) 419-9292
1400
1 Plaintiffs' properties, all three.
2 Q. In fact this Exhibit 89, a March 1999 aerial,
3 and Exhibit 88, a 1988 aerial, you obtained these maps?
4 A. Yes, I did.
5 Q. And gave them to me?
6 A. Yes, sir.
7 Q. I'd ask if you could step down so you can
8 explain to us, using 89, the location of LTD and just
9 explain the land planner, the land uses in the area.
10 A. Very generally, the predominant land use in
11 the area is the Tri-State tollway going from Illinois
12 to the south to Wisconsin further to the north.
13 LTD, which I'll call the subject property, is
14 located on the northeast quadrant of the Tri-State
15 tollway and Highway 22. Highway 22 is a state highway,
16 an arterial highway going almost from the eastern
17 limits of the lake, westerly out probably toward the
18 Algonquin area and beyond. It transcends Lake County.
19 So the subject property or at least the LTD property is
20 at this northeast quadrant. Also significant, in terms
21 of land use, is the fact that this is a four-way
22 interchange. So traffic going east and westbound on
23 Highway 22 can access the Tri-State tollway. And
24 traffic that goes north and southbound on the Tri-State
L.A. REPORTING (312) 419-9292
1401
1 tollway can access Highway 22. So in land use planning
2 eviction this would be called a large transportation
3 node. LTD takes part in that location.
4 Very briefly, the other significant
5 components on here would be Trinity College, which is
6 south of Highway 22 and east of the tollway. There is
7 an office structure immediately to the southeast corner
8 of the tollway and 22. At the southwest corner of 22
9 and the tollway are the Tri-State office buildings.
10 They front almost on the west side of the Tri-State
11 tollway. They have been there for many years. There
12 is also a hotel. And then, as one goes further west,
13 the residential use.
14 Most of the land west of the Tri-State
15 tollway and south of 22 is in the Village of
16 Lincolnshire. Most of the land north of 22 and west of
17 the Tri-State tollway, including the large structures,
18 several large structures of the Hewitt buildings, they
19 also are corporate office use. In Lincolnshire the
20 land generally on the east side of Highway 22, both
21 north and south -- east of the tollway, both north and
22 south of 22, are generally located in the Village of
23 Bannockburn.
24 The only other significant issues would be
L.A. REPORTING (312) 419-9292
1402
1 east of LTD is an office structure with parking behind
2 it that fronts upon the residential area to the north.
3 There is a newer office building, a three-story
4 building built by Pazzuti.
5 Q. And that would be this building directly to
6 the east of the 1995 expansion of LTD?
7 A. Yes. And, lastly, I said that twice, but
8 really lastly, to the north of LTD is a totally
9 consistent change of land use including the plaintiffs'
10 properties and other residential land uses, and they
11 are in another regulatory control, the City of Lake
12 Forest, Illinois.
13 Q. And as part of your work did you examine the
14 Bannockburn zoning map?
15 A. Yes.
16 Q. That's a copy as Exhibit 90, a current
17 zoning, January 1, 1998, correct?
18 A. Yes.
19 Q. And in terms of land planning, laying out,
20 zoning, what does this show to you regarding the
21 Bannockburn area?
22 A. Well, the zoning map as well as aerial
23 photographs portray land use patterns. What's
24 significant here in terms of land use and land use
L.A. REPORTING (312) 419-9292
1403
1 planning, and it's the Bannockburn zoning map, is that
2 this Tri-State tollway, which is a transportation land
3 use, is the western boundary. And all the land along
4 the eastern boundary in the Village of Bannockburn is
5 either listed as a C, a college district, an O, as an
6 office research district, and something that they call
7 FH, flood plan hazard overlay. In other words, all the
8 land uses adjacent to the Tri-State tollway are
9 nonresidential in character. There are no residential
10 land uses within this area of the Village of
11 Bannockburn. The same situation can be seen on the
12 aerial photograph but in more of a pictorial birds-eye
13 view.
14 Q. As you get further east from the tollway how
15 does it change?
16 A. As one gets further east of the tollway, with
17 the noise and its intended problems, then, as I
18 mentioned before, there are the commercial type office
19 uses that buffer the tollway. And then as Bannockburn
20 gets into its planning process, it's moved into
21 predominantly residential land uses as you get off
22 toward Waukegan Road. So it goes from the tollway to a
23 buffer of office/commercial type uses, then into the
24 residential section. So, in city planning terms, these
L.A. REPORTING (312) 419-9292
1404
1 are all transitions of land use. And LTD is located in
2 the buffer -- what I'm going to call the buffer
3 transition zone, not just to the Tri-State toll road
4 but also to the interchange at 22 and the Tri-State
5 which places it in an ideal location from a city
6 planning perspective.
7 Q. Thank you.
8 Do you have an opinion whether LTD
9 Commodities is suitable for the area in which it is
10 located in Bannockburn?
11 A. Yes, I do.
12 Q. What is that opinion?
13 A. Well, it's suitable.
14 Q. What's the basis for that opinion?
15 A. Some of the things that I have just gone
16 over. First of all, it is a nonresidential use and
17 it's located at the northeast quadrant of the -- what I
18 call the transportation node of 22 and the Tri-State
19 toll road. It has a significant amount of truck
20 traffic and vehicular traffic. So in terms of land
21 planning, it should be located in an area where it has
22 reasonable and rapid access to major arterial roads or
23 highways so that traffic does not have to go through
24 residential neighborhoods to get to it. In the case of
L.A. REPORTING (312) 419-9292
1405
1 LTD, traffic can go almost immediately from their plant
2 to Lakeview Drive, which is a road that goes out on
3 Highway 22, and then it can be dispersed onto a state
4 highway east or west on 22 to whatever its destination
5 is or go directly onto the Tri-State toll road for
6 intrastate type traffic either to the north or south.
7 So it probably couldn't have a better location in terms
8 of urban planning than it shares today.
9 Q. What about the homes to the north though in
10 terms of how can LTD be suitably located and you have
11 residential homes in Lake Forest immediately to the
12 north?
13 A. There are -- what's happened here is there
14 are two different governmental entities each having,
15 through their police power, zoning authority and
16 planning authority. There is Bannockburn of which the
17 subject -- of which LTD is in and then to the north the
18 plaintiffs, and the subdivision of which they are a
19 part, live in the City of Lake Forest. They're not
20 generally consistent land uses, one with the other,
21 residential single family with industrial type
22 development. But in this particular case LTD and the
23 office park of which it's a part were zoned prior -- or
24 I should say built prior to the time that the
L.A. REPORTING (312) 419-9292
1406
1 residences or the plaintiffs' homes were built. So it
2 was a preexisting land use condition. And then
3 thereafter the City of Lake Forest allowed the
4 residential units to the north to be built without any
5 type of significant buffer in between them.
6 Q. And do you understand that LTD was expanded
7 in stages?
8 A. Yes, I do.
9 Q. You have been in the county long enough, do
10 you recall FMC had occupied the building originally?
11 A. I remember FMC. I never knew what FMC did
12 but I remember FMC.
13 Q. So from a land planning perspective, it's not
14 good planning by Lake Forest to allow homes --
15 MR. KAISER: Objection, leading.
16 BY MR. KOLAR:
17 Q. Would you call it good planning by Lake
18 Forest -- strike that.
19 How would you characterize the planning
20 decision by Lake Forest to have the Roti, Rosenstrock
21 and Weber lots in their proximity to the uses in
22 Bannockburn to the south?
23 A. Under the condition in which they did it, it
24 was -- I don't know how to say this politely -- it was
L.A. REPORTING (312) 419-9292
1407
1 not properly designed, and that if residential land use
2 was to go there, two things should have happened.
3 There should have been a significant difference in
4 spacing between these homes and the Bannockburn
5 properties or a larger urban berm. In other words, it
6 should have been buffered and it was not. And the same
7 buffering should have taken place along the Tri-State
8 tollway, which in essence it did not.
9 As one goes further north on the tollway
10 today, you will see that Lake Forest and/or the
11 property owners, including Conway Farms, which is a
12 very large development north of Everett Road, have
13 correctly put in large urban berms to protect the
14 residential uses from the problems of the tollway. So
15 it was an example really of planning that lacked
16 excellence.
17 MR. KOLAR: Just for the record Mr. Hara has to
18 leave for his traffic ticket.
19 HEARING OFFICER KNITTLE: Thank you, Mr. Hara.
20 BY MR. KOLAR:
21 Q. Mr. Kracower, as part of your work on this
22 case did you review what I marked as Respondent's
23 Exhibit 34, and that's the Standard Land Use Coding
24 Manual?
L.A. REPORTING (312) 419-9292
1408
1 A. Yes.
2 Q. As part of your work in this case did you
3 form an opinion as to whether LTD should be classified
4 as a C classification or B classification under the
5 index attached to the Pollution Control Board
6 Regulations?
7 A. Yes, I did.
8 Q. Why did you refer to the Standard Land Use
9 Coding Manual in determining the proper classification
10 of LTD?
11 A. I referred to that manual, it's called S
12 for -- a synonym almost, S-L-U-C-M. It's called
13 Standard Land Use Coding Manual. It's called Standard
14 Land Use Coding Manual because within the Pollution
15 Control Board Regulations there is reference to this
16 document, and it requires in part that a determination
17 be made as to the land use classification. And this is
18 the document that they make reference to.
19 Q. In terms of the regulations, where you note
20 that it's referenced, you talk about the definition
21 sections?
22 A. Well, one would be the definition sections
23 and the other would be back in the standards section.
24 The title would be under Section 901.101,
L.A. REPORTING (312) 419-9292
1409
1 classifications of land according to use. It indicates
2 that land shall include all land used as specified by
3 the SLUCM code, and then it goes on.
4 Q. Then as we indicated earlier part of your
5 work in this case -- you see this Appendix B, standard
6 land use coding system --
7 A. Yes.
8 Q. -- attached to the regulations?
9 A. Yes.
10 Q. And you formed an opinion regarding the
11 proper classification under this Appendix B?
12 A. Yes, I did.
13 Q. Okay. Had you ever worked with that Standard
14 Land Use Coding Use Manual before this project?
15 A. Yes. I have that in my office, and I have
16 something called the Standard Industrial Classification
17 System. And I periodically, although they're getting
18 rather dated I might add, would look at these things as
19 I prepared zoning ordinances for lists of uses. They
20 sometimes serve as an interesting guide.
21 Q. So you said Standard something
22 classification, SIC?
23 A. Yes, Standard Industrial Classification.
24 Q. Right. And that Appendix B has SIC
L.A. REPORTING (312) 419-9292
1410
1 referenced on it as well, right?
2 A. Yes. I believe it's in industrial. It's a
3 SIC code, S-I-C.
4 Q. I think you're right. It says in Footnote 1
5 on the Appendix, the use of standard industrial
6 classification nomenclature.
7 When you were inside the LTD operations --
8 I'll mark this as LTD Exhibit 100, a box -- did you see
9 boxes like this?
10 A. Yes, I saw boxes all different sizes that
11 look something like that.
12 (Respondent's Exhibit No. 100
13 was marked for
14 identification.)
15 BY MR. KOLAR:
16 Q. So based on your site inspection, your land
17 planning experience, the SLUCM, do you have an opinion
18 regarding the proper classification of LTD under this
19 Appendix B to the Pollution Control Board Regulations?
20 A. Yes, I do.
21 Q. In terms of lettering what would your opinion
22 be?
23 A. C as in Charlie.
24 Q. And in terms of actual numbering, did you
L.A. REPORTING (312) 419-9292
1411
1 form an opinion as to what would be the --
2 A. Yes.
3 Q. What would that be?
4 A. There were two numbers. I had 4921, which is
5 freight forwarding services. And 4922, packaging and
6 crating services. I believe those are the right
7 numbers, but, if not, those are the terms that
8 accompany them.
9 Q. Here. Let's look. I have got a copy of
10 Appendix B. 4921, freight forwarding services?
11 A. That's correct.
12 Q. That was your opinion?
13 A. Yes.
14 Q. And 4922, packing and crating services?
15 A. That's correct.
16 Q. All right. And in terms of reaching that
17 conclusion regarding the Class C and the actual
18 numbering, how, if at all, did the SLUCM help you, the
19 manual?
20 A. The manual basically sets forth the generic
21 categories that breaks it down more definitively into
22 more detailed categories. It also periodically has
23 certain footnotes that one can use, if necessary, to
24 refine terminology. As I have said before, it is
L.A. REPORTING (312) 419-9292
1412
1 getting a little -- the document becomes a little bit
2 dated. Some of the terms are a little different than
3 today, but generally, by almost a process of
4 elimination, one can go through and come up with what
5 really serves as a primary functional category. The
6 manual really indicates that the activity is the single
7 most important factor of determining land use. So you
8 really have to look at not just the building or the
9 generic character of a building that, you know, a lay
10 person might use or even an architect or anybody might
11 use but you have to look at what really is the
12 predominant activity or activities, plural, that go on
13 in a building in order to come up with an alphabetical
14 classification determination.
15 Q. And from a laymen's perspective I guess you
16 can call that building a warehouse?
17 A. You could call it a warehouse. I'm sure a
18 lot of people do call it -- I mean, generally if you
19 look at it you'd say it's a warehouse or the city might
20 call it a warehouse. But calling it that generically
21 or crudely and then going back and having to comply
22 with the SLUCM regulations is a totally different
23 scenario, and at that point you're required to be far
24 more far specific.
L.A. REPORTING (312) 419-9292
1413
1 Q. In terms of -- you mentioned activity. In
2 terms of activity at the LTD headquarters, what in your
3 opinion of what you saw the largest activity that --
4 the greatest activity there in terms of use of the
5 building?
6 A. Well, the greatest activity and the area that
7 consumed what I would call the predominant floor area
8 was packaging and crating.
9 Q. And that's one of the classifications you
10 have selected?
11 A. Packaging and crating services is 4922, and
12 that was one of the two categories that went on. Motor
13 freight forwarding would involve trucks, you know,
14 bringing materials there and taking them away.
15 Q. And you witnessed the truck activity?
16 A. Yes, I did.
17 Q. Now, this Appendix B to the regulations has a
18 code 637, warehousing and storage services, did you see
19 that?
20 A. Yes.
21 Q. Why didn't you use that code for LTD?
22 A. Warehousing and storage, in addition to what
23 you just read, also has, and it's hard to see it, a
24 little footnote after it, No. 2, and if you find that
L.A. REPORTING (312) 419-9292
1414
1 footnote back here --
2 Q. I think it's back here farther. Let's see.
3 You were going the right way. Sorry. I
4 think it's on Page B20 of the appendix.
5 A. So if you research that footnote, if you're
6 inclined to do something like that under a code,
7 warehousing and storage includes only those facilities
8 that are used by or open to the public.
9 Q. What's your understanding of LTD's building
10 in that regard?
11 A. Well, LTD's building is not really a public
12 warehousing facility.
13 HEARING OFFICER KNITTLE: Mr. Kolar, the document
14 you were just referring to, is that going to be listed
15 as an exhibit?
16 MR. KOLAR: No, this is just -- I think anybody
17 would -- this is what I got from the Pollution Control
18 Board.
19 HEARING OFFICER KNITTLE: Then it must be proper
20 and accurate. I just want the Board to know what we're
21 talking about.
22 MR. KOLAR: It's dated June '91, but this is what
23 Dorothy Gunn sent me in August of '99 when I had a
24 question regarding the impulsive section. I wanted to
L.A. REPORTING (312) 419-9292
1415
1 make sure I had the --
2 HEARING OFFICER KNITTLE: And this is Title 35,
3 Subtitle H, noise, Chapter I.
4 MR. KOLAR: Yes. And it says, includes -- in
5 terms of a regulation, includes amendments through
6 January 28, 1987.
7 HEARING OFFICER KNITTLE: And that's fine, you
8 identified the pages. I just wanted to make sure we
9 knew which documents we're talking about.
10 MR. KOLAR: And the appendix attached, Appendix B,
11 standard land use coding systems, it has numbers B-1
12 through B-25.
13 HEARING OFFICER KNITTLE: Thank you.
14 BY MR. KOLAR:
15 Q. Mr. Kracower, again these -- using I think
16 Mr. Knittle's copy of the Environmental Protection Act,
17 Section 33(c)(i), you read that paragraph before today,
18 right?
19 A. Yes.
20 Q. It says, in making its orders and
21 determination the Board shall consider "the character
22 and degree of injury to or interference with the
23 protection of the health, general warfare and physical
24 property of the people."
L.A. REPORTING (312) 419-9292
1416
1 Do you have an opinion whether LTD's
2 operation here at 294 and Route 22 in Bannockburn
3 interfered with the protection of the health, general
4 welfare and physical property of the people?
5 MR. KAISER: I would object with respect to
6 foundation. I don't think Mr. Kracower has any
7 expertise which would allow him to address injury to
8 the health of the people.
9 HEARING OFFICER KNITTLE: Mr. Kolar.
10 MR. KOLAR: I think that's what land planning is
11 all about, that you plan so as to minimize the impact
12 of land uses on people. That's why you have transition
13 zones and things like that.
14 HEARING OFFICER KNITTLE: Objection, overruled.
15 BY MR. KOLAR:
16 Q. Do you have an opinion regarding that?
17 A. Yes.
18 Q. And what is your opinion?
19 A. That generally the facility does not have a
20 significant adverse impact to the public health, safety
21 or welfare.
22 Q. And you acknowledge that the Rotis,
23 Rosenstrocks and Webers are complaining about LTD?
24 A. Well, I understand that they may be -- they
L.A. REPORTING (312) 419-9292
1417
1 have complained about noise --
2 Q. But in terms of --
3 A. -- but in terms of area wide planning, we
4 talked about the people and I would say there is no
5 significant adverse impact. And it's basically the
6 same finding that the Village of Bannockburn made when
7 they zoned this land.
8 MR. KAISER: Objection, foundation.
9 HEARING OFFICER KNITTLE: Mr. Kolar.
10 MR. KOLAR: I don't have a response.
11 HEARING OFFICER KNITTLE: I was going --
12 MR. KAISER: Well --
13 HEARING OFFICER KNITTLE: Go ahead, Mr. Kaiser,
14 what were you going to say?
15 MR. KAISER: I was going to say this. I mean, Mr.
16 Kolar is going to make whatever arguments he will about
17 what the zoning approval by Bannockburn may or may not
18 be, but I don't think Mr. Kracower is entitled to do
19 that.
20 HEARING OFFICER KNITTLE: I was going to sustain
21 your objection.
22 MR. KAISER: You still will?
23 HEARING OFFICER KNITTLE: I still am.
24 Objection sustained.
L.A. REPORTING (312) 419-9292
1418
1 BY MR. KOLAR:
2 Q. From a land planning perspective when you
3 prepare comprehensive plans for villages or look at
4 land plans that a person brings to a village for
5 approval, does a land planner consider if a use will
6 interfere with the health, general welfare and physical
7 property of the people?
8 A. I don't know about other people. I do and I
9 have testified to it for many years. The answer is
10 yes. It's a general factor that we look at in
11 comprehensive planning and zoning.
12 Q. In terms of if you want an LTD facility in
13 your community, from a land planning perspective to
14 minimize the impact on the people generally in a
15 community, is this an appropriate location?
16 A. Yes. As I have said before, it is
17 appropriately located.
18 Q. Do you have an opinion if LTD provides social
19 and/or economic value to the area, its operation there
20 in Bannockburn?
21 MR. KAISER: Objection, foundation.
22 HEARING OFFICER KNITTLE: Mr. Kolar.
23 I can rule on it with no response.
24 MR. KOLAR: I have no response.
L.A. REPORTING (312) 419-9292
1419
1 HEARING OFFICER KNITTLE: The objection is
2 overruled. I think this does qualify under his land
3 planning background.
4 Do you need the question repeated, sir?
5 THE WITNESS: No, I remember it.
6 Yes, I do.
7 BY MR. KOLAR:
8 Q. And what is your opinion?
9 A. It provides both social and economic
10 attributes and benefits to the community.
11 Q. In what regard?
12 A. Socially -- I mean, they employ somewhere in
13 excess of 600 to 1,200 or 1,000 people, so it provides
14 an employment base, employment opportunities and
15 economic opportunities for people who work there.
16 Secondly, I think from an economic point of
17 view it provides a significant tax revenue about ---
18 it's in excess of $600,000 a year to all of the local
19 taxing districts. And I know that -- as I recall the
20 school districts here receive somewhere between 60 to
21 70 percent of the tax revenue in Bannockburn. That
22 would be the Deerfield High School and the Bannockburn
23 Elementary School district. So the attributes socially
24 pertain to employment base and to the various levels of
L.A. REPORTING (312) 419-9292
1420
1 local government that are receptive to receiving in
2 excess of $600,000 on an annual reoccurring basis.
3 And then lastly, like many nonresidential
4 land uses, the tax revenues that go to the school
5 districts are unique because this development does not
6 generate any school children to the school system such
7 as a residential development would. So that's an extra
8 bonus for communities that have these kind of uses
9 within them.
10 Q. In terms of real estate taxes, you would
11 defer to the tax bill for the exact amount?
12 A. Yes.
13 Q. I think you mispoke. I would move to
14 introduce Respondent's Exhibit 39 which is a public
15 record of the tax bill for 1999.
16 A. Did I say 600?
17 Q. Yes.
18 A. I meant over 300. I'm sorry.
19 Q. Okay. Good.
20 HEARING OFFICER KNITTLE: Mr. Kaiser, do you have
21 an objection to Respondent's 39 which --
22 MR. KOLAR: Which is a photocopy of the real
23 estate tax bill for 1999 payable this year 2000.
24 HEARING OFFICER KNITTLE: The '99 real estate
L.A. REPORTING (312) 419-9292
1421
1 bill?
2 MR. KOLAR: Right.
3 HEARING OFFICER KNITTLE: Is that of LTD?
4 MR. KOLAR: Right.
5 MR. KAISER: I have no objection.
6 HEARING OFFICER KNITTLE: It's admitted.
7 (Respondent's Exhibit No. 39
8 was admitted into evidence.)
9 MR. KOLAR: For the record the -- I guess you
10 could check my math, but I added up '99, and it totals
11 304,339.68. So I'll give you that one.
12 BY MR. KOLAR:
13 Q. Did I forget anything? I don't have any
14 other questions.
15 HEARING OFFICER KNITTLE: I don't know, Mr. Kolar.
16 MR. KOLAR: I always like to ask my witness that
17 question.
18 Then I have no further questions of Mr.
19 Kracower.
20 HEARING OFFICER KNITTLE: Mr. Kaiser, do you want
21 to start now or do you want a little break?
22 MR. KAISER: I'd like a break because I want to
23 see whether we already have in the record a document
24 I'd like to show Mr. Kracower. So if we could take
L.A. REPORTING (312) 419-9292
1422
1 a --
2 HEARING OFFICER KNITTLE: Take an eight minute
3 recess.
4 MR. KAISER: Sure. Thanks.
5 (Short break.)
6 HEARING OFFICER KNITTLE: Mr. Kolar, you had some
7 clarification on your Exhibit 39?
8 MR. KOLAR: Right. Just so there is no confusion,
9 lTD is made up of four parcels which have individual
10 permanent index numbers, and they are 16-18-300-021,
11 16-18-301-001, 15-13-407-001 and 15-13-400-026. And
12 those four pin numbers, if you add up the taxes for the
13 year 1999 payable in 2000, by my math equal 304,339.68.
14 HEARING OFFICER KNITTLE: Thank you.
15 Mr. Kaiser, you can begin your cross exam.
16 Mr. Kracower, you probably know this but
17 you're still under oath.
18 THE WITNESS: Thank you.
19 CROSS EXAMINATION
20 BY MR. KAISER:
21 Q. Mr. Kracower, now you identified LTD as
22 having certain social and economic value to the
23 community, is that right?
24 A. Yes.
L.A. REPORTING (312) 419-9292
1423
1 Q. And with respect to the social value, you
2 said it employs somewhere between 600 and 1,200 people
3 at the Bannockburn facility, correct?
4 A. Yes.
5 Q. So that's 600 to 1,200 people at the building
6 right here in the center of Respondent's Exhibit 89,
7 correct?
8 A. I believe that's where they go, yes.
9 Q. And the economic value you said were the tax
10 revenues that were generated for the County of Lake,
11 the Forest Preserve, West Deerfield Township, Village
12 of Bannockburn, Deerfield-Bannockburn Fire and so forth
13 as indicated on Respondent's Exhibit 39, the tax bill,
14 right?
15 A. Yes.
16 Q. In what way would the social or economic
17 benefits of LTD have been diminished if LTD or if
18 Bannockburn had required LTD to build a berm on the
19 northern boundary of LTD's property?
20 A. There would be no relationship between the
21 social and economic benefits in a berm.
22 Q. But you could build a berm and it wouldn't
23 reduce the commercial or economic benefits, would it?
24 A. I don't know what size berm one could build
L.A. REPORTING (312) 419-9292
1424
1 there. It's pretty narrow.
2 Q. Well, this is your business, isn't it?
3 A. It was not part of my assignment to get into
4 mitigation.
5 Q. You're a land planner, right?
6 A. Yes.
7 Q. You're a landscape architect?
8 A. Yes.
9 Q. You have designed berms before, haven't you?
10 A. Yes.
11 Q. You have been out to the LTD facility a half
12 a dozen times, right?
13 A. Yes.
14 Q. You were out there yesterday, weren't you?
15 A. Yes.
16 Q. You parked your own car at the northern
17 boundary of the parking lot, haven't you?
18 A. Yes.
19 Q. In order to look onto the Roti, Rosenstrock
20 and Weber properties, correct?
21 A. Yes.
22 Q. Do you have a professional opinion as you sit
23 here today whether LTD could have constructed a noise
24 berm along the northern boundary of their property?
L.A. REPORTING (312) 419-9292
1425
1 A. It was not part of my assignment, but I can
2 tell you that I just designed a berm on the Pazzuti
3 building and it wouldn't fit.
4 Q. It would not fit here?
5 A. No.
6 Q. Would a noise wall fit here?
7 A. I have no expertise in noise walls.
8 Q. Did you read any of the transcripts of the
9 hearing from November in preparation for your testimony
10 today?
11 A. No.
12 Q. Do you have any reason to believe
13 construction of a noise wall, right along the northern
14 boundary of the truck staging area, would reduce the
15 social or economic value of LTD's Bannockburn facility?
16 MR. KOLAR: Objection, asked and answered
17 regarding noise walls.
18 MR. KAISER: It hasn't been asked nor has it been
19 answered.
20 HEARING OFFICER KNITTLE: You were talking noise
21 berms before?
22 MR. KAISER: Yes, and I said along the northern
23 property line. Now I have moved it into the area that
24 Mr. Huff described and Mr. Zak described immediately
L.A. REPORTING (312) 419-9292
1426
1 north of the truck staging area and to the south of
2 LTD's northern parking lot.
3 MR. KOLAR: He said noise berm, then I thought he
4 said noise wall, and Mr. Kracower said it's not his
5 area, noise walls.
6 HEARING OFFICER KNITTLE: Right. But I think he's
7 moved the -- whatever the noise barrier is farther
8 south. Is that correct, Mr. Kaiser.
9 MR. KAISER: That's correct.
10 HEARING OFFICER KNITTLE: So I'll overrule.
11 Do you need the question repeated?
12 THE WITNESS: No. I remember the question.
13 As I said, I have no expertise at all in
14 noise walls, and I have no understanding of the heighth
15 of a wall or what it looks like or how it operates, and
16 it transcends the nature of my assignment. So I'm not
17 able to really tell you what impact something like that
18 could have. I don't know if it's, you know, six feet
19 high or 80 feet high.
20 BY MR. KAISER:
21 Q. Well, let me give you a few more facts, Mr.
22 Kracower. It would be 13 feet high, and it would run
23 from the western end of the dock area to the eastern
24 end and make the curb towards Lake Drive there,
L.A. REPORTING (312) 419-9292
1427
1 whatever the heck it's called, that eastern road coming
2 up along the side of the LTD facility. With that
3 information, can you give us an opinion?
4 A. No.
5 Q. I see. So you can only give us a very
6 limited opinion of the economic and social value as it
7 is today, but you have no opinion as to whether a noise
8 wall would affect LTD's social and economic value, is
9 that right?
10 A. That's correct because I said that, number
11 one, I have no expertise in noise walls. I have never
12 seen a design for a noise wall in any of the
13 documentation that I have or was made available to me.
14 And, thirdly, it's such an innocuous subject that I
15 think that in the broad context of urban planning I
16 don't know how a noise wall would or would not have any
17 relationship at all to the broad ramifications of tax
18 revenues generated or an employment base.
19 Q. You can't put that together with all your
20 training, your 30 years of experience, your Master's
21 degrees, you can't tie in a noise wall and give us any
22 kind of an opinion as to whether that would affect the
23 tax revenues from LTD's Bannockburn facility?
24 MR. KOLAR: Objection, asked and answered. I'd
L.A. REPORTING (312) 419-9292
1428
1 ask that the question be stricken.
2 HEARING OFFICER KNITTLE: Sustained.
3 But, Mr. Kaiser, I think you misunderstand
4 his answer.
5 BY MR. KAISER:
6 Q. What part of a noise wall is innocuous to you
7 as a land planner?
8 A. I think what I'm trying to -- what I have
9 tried to say is that, once again, not having any
10 expertise in it, not having any idea what you're
11 talking about or seen any real plans from an expert
12 other than your own testimony, the subject is so
13 innocuous in the context of generation of tax revenue
14 that it's like saying if I designed a building to be a
15 triangle versus a square, would that have any impact on
16 the tax revenue, and that has no relationship. So
17 whether there is a noise wall or no noise wall, whether
18 the building is square or triangle, none of those
19 issues really have any relationship to my direct
20 testimony pertaining to the generation of revenues,
21 economic benefits or social benefits to a community.
22 Q. Well then how did, if you know, the County of
23 Lake determine what the appropriate real estate tax
24 would be for LTD?
L.A. REPORTING (312) 419-9292
1429
1 A. It was the Lake County -- it was probably the
2 township assessor that made the assessment, and it's
3 done in a rather complicated way with building land
4 fixtures, and that's the extent of my knowledge. The
5 assessor would know better that I would.
6 Q. So other than knowing that $300,000 in tax
7 revenues is in general a good thing for the bodies who
8 receive that money, you don't know much about real
9 estate taxation, is that fair?
10 A. No.
11 Q. That's not fair?
12 A. No.
13 Q. Well, tell us what you know about real estate
14 taxation.
15 A. First of all, the question is so broad, could
16 you refine it for me?
17 Q. No.
18 A. Then I couldn't answer it. I'm sorry.
19 Q. Well, what, if any, impact does the fact that
20 LTD's building is roughly rectangular -- it is
21 rectangular and roughly a square, does the size of it
22 and the shape of it as a square as opposed to a
23 triangle have any impact on the tax revenues?
24 A. No.
L.A. REPORTING (312) 419-9292
1430
1 Q. None whatsoever, right?
2 A. None.
3 Q. So why earlier did you throw out that example
4 of I don't know if it's triangle or square, that has no
5 relevance, does it?
6 A. I was trying to explain the innocuous nature
7 of the question that you posed to me in the context of
8 trying to relate it to social and economic benefits. I
9 think it's apples and oranges.
10 Q. So one of the benefits is LTD generates tax
11 revenues, right?
12 A. Yes.
13 Q. And you don't know or have any opinion as to
14 whether construction of a noise wall would raise, lower
15 or keep the tax rate on LTD's Bannockburn facility the
16 same, correct?
17 A. That's another question.
18 Q. Do you have an answer?
19 A. If there was a physical improvement on the
20 property, it could impact the real estate taxes.
21 Q. Would you consider a noise wall a physical
22 improvement?
23 A. Yes.
24 Q. And what would be its impact, the
L.A. REPORTING (312) 419-9292
1431
1 construction of a 13 foot noise wall along the northern
2 boundary of the dock staging area, what might its
3 impact be?
4 A. I have no idea.
5 Q. Okay. Fair enough.
6 Do you think any people would lose their jobs
7 if LTD had to build a noise wall, a 13 foot high noise
8 wall along and around the dock staging area on the
9 north end of its building?
10 A. I don't think it would be related to jobs or
11 employment.
12 Q. The question was, do you think anyone would
13 lose their job at LTD's Bannockburn facility if
14 Bannockburn were required to build a noise wall -- if
15 LTD was required to build a noise wall along the truck
16 dock area?
17 A. I couldn't see any employment loss due to a
18 noise wall.
19 MR. KOLAR: Except the person that trims those
20 hedges there, Steve.
21 BY MR. KAISER:
22 Q. Now, one of your opinions was that you
23 thought there was no significant adverse impact from
24 LTD's operations on the health and welfare of the
L.A. REPORTING (312) 419-9292
1432
1 people, is that right?
2 A. Yes.
3 Q. During the spring of 2000, other than what
4 you learned about health through your own experience,
5 did you take any courses in public health?
6 A. No.
7 Q. When was the last time you took a course in
8 public health?
9 A. I don't believe I have ever taken a course in
10 public health.
11 Q. What was the last article you read on the
12 health affects of sleep deprivation?
13 A. I just read an article while I was in the
14 hospital interestingly enough about a month ago.
15 Q. And what do you recall from that article?
16 A. That inadequate sleep leads to stress.
17 Q. Do you have any reason to argue with that
18 conclusion of the article that you read while in the
19 hospital?
20 A. It really meant nothing to me because I'm not
21 qualified in sleep deprivation.
22 Q. All right. But it at least struck you in
23 some way that you remember it here this afternoon?
24 A. Yes.
L.A. REPORTING (312) 419-9292
1433
1 Q. Do you have any reason to doubt that
2 proposition, that sleep loss can lead to stress?
3 A. Once again, I have no expertise at all in
4 sleep loss or stress other than what I have incurred
5 myself in my 60 years of life, but I am not an expert
6 in stress or sleep loss.
7 Q. Did you read the deposition transcripts of
8 any of the complainants in preparation for your
9 testimony?
10 A. I did some time ago.
11 Q. Do you recall that Karen Roti talked about
12 noise from LTD's dock operations preventing her from
13 falling asleep?
14 A. I don't recall that, no.
15 Q. Do you recall Karen Roti testifying that
16 noise from LTD's dock operations awakened her, and on
17 numerous occasions her children, and kept them from
18 falling back to sleep?
19 A. I remember some statement to that effect.
20 Q. Those statements or that information that
21 Karen Roti and her family members were losing sleep
22 because of LTD's dock operations, did you take that
23 into consideration in reaching your opinion?
24 A. Yes.
L.A. REPORTING (312) 419-9292
1434
1 Q. And in what way did you consider Karen Roti
2 and her family's loss of sleep in generating in your
3 opinion that LTD has no significant adverse health
4 effect?
5 A. Well, first of all I don't know -- that's
6 someone's statement that somebody testified to. I
7 don't know if there actually was a loss of sleep,
8 that's number one. Number two, I made my own on-site
9 observations external to the property in the front yard
10 and the rear yard. I did not go into their bedroom,
11 but I assume if I was in the rear yard, the noise would
12 be as loud if not louder. And it's my opinion that the
13 noises that I heard originating from the the toll road
14 were as severe or even worse in most instances than
15 what I heard coming from LTD. In fact on a couple of
16 occasions when I was at LTD there was almost no noise.
17 It was silent. And the only thing one could hear was
18 the tollway noise. The true test of what I'm
19 testifying is that for anybody to come to a conclusion
20 of the severity of the plaintiff's suggestion about
21 losing sleep would be to stand in the front yard of the
22 property and the rear yard, as I did, and see what they
23 hear for themselves. When I did that, I concluded that
24 there was no significant adverse impact to that
L.A. REPORTING (312) 419-9292
1435
1 property from LTD by itself. The property --
2 Q. How many times were you in a position to hear
3 the sound either at the rear of LTD's property, that is
4 to the south of the Rotis, or on Wedgewood Drive to the
5 north of the Rotis?
6 A. I have been there on five occasions, and on
7 five of the five occasions I went through that same
8 process. And on each one I was overwhelmed by the
9 significant noise coming from the tollway. And what I
10 observed on each one of those occasions --
11 MR. KAISER: Move to strike. The question as how
12 many times. He told me five. Nonresponsive.
13 HEARING OFFICER KNITTLE: Mr. Kolar.
14 MR. KOLAR: I'm going to have to hear his question
15 again.
16 MR. KAISER: I asked how many times was he there,
17 he said five, the rest of it was nonresponsive.
18 HEARING OFFICER KNITTLE: I'll grant the motion to
19 strike.
20 BY MR. KAISER:
21 Q. What training do you have in the physics of
22 sound?
23 A. None. As I testified I'm not a sound expert.
24 Q. And do you know whether sound at the level at
L.A. REPORTING (312) 419-9292
1436
1 which you were standing at the northern edge of LTD's
2 parking lot would be perceived identically to the
3 sound -- if the sound source is LTD's dock area, do you
4 have any basis for concluding that the way you
5 perceived the sound at the northern portion of LTD's
6 parking lot was identical to the way Karen Roti and her
7 children perceived the sound from LTD's dock on the
8 second floor of their home?
9 A. No.
10 Q. What was it you concluded was the predominant
11 activity at LTD's Bannockburn facility?
12 A. Packaging and crating.
13 Q. And how did you determine that packaging and
14 crating was the predominant activity?
15 A. By observation.
16 Q. Do you know how much of LTD's building in
17 Bannockburn -- approximately what percentage of the
18 entire square footage is devoted to storage?
19 A. There is approximately a 400,000 square foot
20 building. There is about 50,000 square feet in
21 administrative use, and the remainder of that is in the
22 packaging and crating operation. And there is
23 approximately 24 loading docks attached to it.
24 Q. Do you know what percentage of that 350,000
L.A. REPORTING (312) 419-9292
1437
1 square feet remaining, after you subtract the 50,000 in
2 administrative areas, is committed to the storage of
3 boxes like these, LTD Exhibit 100?
4 A. Well, no, because it doesn't operate that
5 way.
6 Q. You were in there, weren't you?
7 A. Yes.
8 Q. You saw row after row after row of shelves
9 with boxes on them, didn't you?
10 A. Yes but they were being --
11 Q. That's enough. You answered my question, Mr.
12 Kracower. Thank you.
13 What is the predominant basis for LTD's
14 profits?
15 A. I'm sorry, I don't understand your question.
16 Q. Do you know whether LTD makes a profit?
17 A. No.
18 Q. Did you talk with Jack Voigt or Michael Hara
19 about LTD's business?
20 A. What do you mean by "business"?
21 Q. What do you know LTD to do? What does LTD
22 do, Mr. Kracower?
23 A. They have a catalog, and they sell a variety
24 of different products on a business-to-business basis.
L.A. REPORTING (312) 419-9292
1438
1 Q. Have you seen Complainants' Exhibits C-2,
2 their Christmas 1998 catalog?
3 A. I have seen various catalogs, not the 1998
4 one. I have seen other ones.
5 Q. Have you seen the spring of 1999 catalog,
6 Complainants' Exhibit C-1?
7 A. I have seen several catalogs, but I can't
8 tell you this is the exact one I have seen, but they
9 all look very similar to me.
10 Q. Do you make any distinction between the
11 social value of selling nicknacks and gift items and
12 the social value of selling health care supplies?
13 A. No.
14 Q. You don't make any distinction between those
15 two?
16 A. No.
17 Q. As long as it makes a profit it has a social
18 value, is that right?
19 A. No. I think you're testifying for me, and
20 that is not what I said.
21 Q. As long as they pay taxes they have social
22 value, is that it?
23 A. Once again, I didn't say that. I mean, your
24 questions are very argumentative, and I'm trying to
L.A. REPORTING (312) 419-9292
1439
1 answer them but you're suggesting that I have testified
2 to things that I have not testified to. So the answer
3 to your question would be no.
4 Q. That there is no distinction -- well, I'll
5 withdraw the question.
6 Do you know does LTD contract -- well, do you
7 know what percentage of LTD's profits are derived from
8 the sales of the goods in these and similar catalogs?
9 A. No, that's beyond my assignment.
10 Q. Well, your assignment was to determine
11 whether this was a Class B or Class C land use, that
12 was part of your assignment, wasn't it?
13 A. To determine what the classification would
14 be, yes.
15 Q. And part of your methodology was determining
16 the predominant activity of LTD at its Bannockburn
17 facility, wasn't it?
18 A. Yes.
19 Q. And "predominant activity" I think you would
20 agree is a somewhat vague term, isn't it, Mr. Kracower?
21 A. I don't think it is in this case.
22 Q. But you didn't ask Mr. Hara or Mr. Voigt or
23 find out from any source within LTD what is the
24 predominant basis for LTD's revenues?
L.A. REPORTING (312) 419-9292
1440
1 A. That's correct, I did not use that word.
2 Q. Well, what word did you use? Did you ask
3 them at all how do you make money?
4 A. I asked them about the nature of their
5 business. I did not ask them to look at their books or
6 whether they made money or lost money. It was
7 completely irrelevant --
8 Q. Did you ask them do you --
9 MR. KOLAR: Objection, would he be allowed to
10 finish his answer before Mr. Kaiser cuts him off and
11 starts another question?
12 HEARING OFFICER KNITTLE: Sustained.
13 Did you pick that up? Did you pick up what
14 he said?
15 (Record read as requested.)
16 HEARING OFFICER KNITTLE: Is there anything past
17 there?
18 THE WITNESS: There was a few more words. It was
19 completely irrelevant to the nature of my assignment.
20 BY MR. KAISER:
21 Q. Do you know who owns this parcel of property
22 on which the LTD building is located at Bannockburn,
23 Illinois?
24 A. No, I do not.
L.A. REPORTING (312) 419-9292
1441
1 Q. Do you know who leases this building which
2 houses LTD's operations?
3 A. No, I do not.
4 Q. Do you know who owns the goods that are
5 stored under roof at LTD's Bannockburn facility?
6 A. No.
7 Q. Do you know who owns the trucks that deliver
8 the goods to LTD's Bannockburn facility?
9 A. Generally -- in a generic way they are
10 outside purveyors.
11 Q. Do you know who owns the trucks that take the
12 goods away from LTD's Bannockburn facility?
13 A. Same response.
14 Q. Do you know whether LTD stores anyone else's
15 products under its roof at the Bannockburn facility?
16 A. Not that I'm aware of.
17 Q. So what you're aware of is that everything
18 under the roof at the Bannockburn facility belongs to
19 LTD, is that right?
20 A. I just said I don't know who it belongs to.
21 You asked me that, and I said I do not know the actual
22 legal ownership.
23 Q. Do you have any reason to believe that LTD is
24 leasing out warehouse space in Bannockburn to third
L.A. REPORTING (312) 419-9292
1442
1 parties?
2 A. I'm not aware of that.
3 Q. Does that mean that -- well, do you have a
4 belief as to whether they're doing that?
5 A. I have no knowledge of it.
6 Q. How would you define -- do you have your
7 SLUCM code in front of you there, Mr. Kracower?
8 (Document tendered.)
9 MR. KAISER: Thank you.
10 BY MR. KAISER:
11 Q. Respondent's Exhibit 34.
12 Freight forwarding services 4921, that's what
13 you are telling the Board best describes LTD's
14 predominant activity at its Bannockburn facility, is
15 that right?
16 A. I said it was one of the predominant
17 activities.
18 Q. And the other predominant activities was
19 packing and crating services?
20 A. Yes.
21 Q. And you felt that those predominant
22 activities better describe what was going on at LTD
23 than, for instance, retail or wholesale sale of goods,
24 right?
L.A. REPORTING (312) 419-9292
1443
1 A. Yes.
2 Q. You looked at retail sales within the SLUCM
3 code, didn't you?
4 A. Yes.
5 Q. And you concluded that LTD is not really a
6 retail sales outfit, is it?
7 A. That's correct.
8 Q. And you looked at wholesale sales within the
9 SLUCM code, did you not?
10 A. That's correct.
11 Q. And you concluded, well, LTD is not really a
12 wholesaler either, right?
13 A. You're correct.
14 Q. But you would concede LTD seems to sell an
15 awful lot of stuff, you'd grant us that, wouldn't you,
16 Mr. Kracower?
17 A. Yes, they have a very large volume.
18 Q. And that volume comes in on Lakeside Drive,
19 right?
20 A. Yes.
21 Q. It's unloaded into the warehouse, right?
22 A. Yes.
23 Q. And it stays there for some period of time,
24 correct?
L.A. REPORTING (312) 419-9292
1444
1 A. Yes.
2 Q. And then it leaves again, right?
3 A. Yes.
4 Q. And didn't Mr. Voigt tell you that the
5 inventory at the LTD facility in Bannockburn turns
6 approximately 12 times a year?
7 A. Yes, every 30 days is the way he put it.
8 Q. Right. He said things come in, and at the
9 most they stay there every 30 days?
10 A. Yes.
11 Q. And you recall during your deposition you and
12 I explored whether the amount of time that goods stayed
13 there impacted whether it was viewed as a warehouse or
14 a storage facility, is that right?
15 A. Not correct. Not exactly.
16 Q. What do you recall?
17 MR. KOLAR: Objection, relevance as to what he
18 asked him at his dep. I think the dep is only relevant
19 regarding impeaching.
20 MR. KAISER: I withdraw the question.
21 BY MR. KAISER:
22 Q. Do you know on the basis of your education
23 and experience what the average time is for retail or a
24 catalog sales house for inventory to remain on-site?
L.A. REPORTING (312) 419-9292
1445
1 A. No.
2 Q. Did you make any effort to find that out or
3 figure that out in order to render your opinion to the
4 Board?
5 A. The answer is no, it was not relevant.
6 Q. Thank you. That is the answer.
7 Is there any place that you would look for a
8 definition of freight forwarding services? Is there
9 any place within the Standard Land Use Classification
10 Manual where that term is defined?
11 A. I would not recall.
12 Q. You don't recall or you don't know?
13 A. I have not seen it, not that I remember.
14 Q. And packing and crating services, do you
15 recall seeing a definition of that within the Standard
16 Land Use Coding Manual?
17 A. Within the manual?
18 Q. Yes.
19 A. I would have to look at it to answer your
20 question. I didn't understand the last two questions
21 then.
22 Q. So you're saying that maybe it occurs within
23 the manual, maybe there is someplace within the manual
24 where those two terms are defined?
L.A. REPORTING (312) 419-9292
1446
1 A. Could you please ask the question again
2 because I don't understand the question.
3 Q. Well, you have described the predominant
4 activities as freight forwarding services, and you see
5 that in the footnotes there on the bottom of Page 55
6 where certain of these terms used in the manual are
7 defined. For instance, rapid rail transit and street
8 railway right-of-way includes only that land which is
9 not within the public right-of-way. The footnotes in
10 some ways define the terms. Did you find any place
11 within the manual where these terms, "freight
12 forwarding services" or "packing and crating services,"
13 were defined?
14 A. I don't recall seeing those definitions.
15 Q. Do you know of any other source that you or
16 people in your field might rely upon in order to locate
17 a working definition of freight forwarding services?
18 A. No.
19 Q. Does the word "services" seem to be an
20 essential part of the definition or surplusage as used
21 in the Standard Land Use Coding Manual?
22 A. I have no opinion on that.
23 Q. You have no opinion on that?
24 A. That's correct.
L.A. REPORTING (312) 419-9292
1447
1 Q. Does LTD provide freight forwarding services
2 to any third party?
3 A. What do you mean by a third party?
4 Q. Someone other than LTD.
5 A. Yes.
6 Q. To whom?
7 A. I can't tell you that. I don't know. I
8 don't know where the truck goes. The truck leaves the
9 premises with product in it that have been packaged and
10 crated, and it is then distributed. I do not know
11 where it goes once it leaves the premises other than
12 it's a business to business transaction.
13 Q. Do you know who owns the goods when they
14 leave on the truck off of LTD's facility?
15 A. The customers, as I recall Mr. Voigt
16 explaining to me, and as I recall from Mr. Hara's
17 deposition, have an account with LTD. It is charged to
18 their account, the product then leaves the premises,
19 and, I imagine, after that they're appropriately
20 invoiced.
21 Q. Well, do you know when title to those goods
22 changes from LTD to the customer?
23 A. I would think that's more of a legal question
24 than a planning question, so I could not answer that.
L.A. REPORTING (312) 419-9292
1448
1 Q. You don't know?
2 MR. KOLAR: Objection, that calls for a legal
3 conclusion. Probably a UCC Article II expert would
4 have to answer that.
5 HEARING OFFICER KNITTLE: I'll sustain it, but
6 he's already stated that he does not know the answer to
7 that question.
8 MR. KOLAR: Okay.
9 BY MR. KAISER:
10 Q. To whom does LTD supply packing and crating
11 services?
12 A. Their customers.
13 Q. And that's your basis for determining that
14 LTD -- each of these little customers then, those are
15 the people to whom they provide the service?
16 A. Yes.
17 Q. LTD is not providing goods to them, they're
18 not providing them the Spirited Hand Painter Holder
19 that's so realistically detailed, the Woodland Santa
20 Planter -- is that LTD's product?
21 A. That's one of the items that is packaged and
22 crated.
23 Q. Well, what is LTD selling, the product or the
24 service?
L.A. REPORTING (312) 419-9292
1449
1 A. Both.
2 Q. Can you describe for the Board your role in
3 preparing Appendix B to the noise -- the Board's noise
4 pollution regulations?
5 A. I don't understand the question. I'm sorry.
6 Q. Could you describe to the Board your role in
7 creating Appendix B to the Board's noise regulations?
8 A. I did not create Appendix B to the noise
9 regulations.
10 Q. So I take it you didn't have a role in the
11 preparation of Appendix B?
12 A. You would have to define for me what you mean
13 by "Appendix B."
14 Q. Well, that's the portion of the regulations
15 that refers to the Standard Land Use Coding Manual,
16 isn't it?
17 A. I would have to look. I don't recall. I
18 don't remember all the appendices.
19 Q. Did you look at any legislative history with
20 respect to the Board's noise pollution regulations in
21 preparing your opinion?
22 MR. KOLAR: Objection, the regulations are not
23 legislative, they're administrative regulations.
24 HEARING OFFICER KNITTLE: Sustained.
L.A. REPORTING (312) 419-9292
1450
1 BY MR. KAISER:
2 Q. Did you look at any of the administrative
3 history with respect to the promulgation of the Board's
4 noise regulations in preparing your opinion?
5 A. No, it was not available to me.
6 Q. What efforts did you make to get that
7 information, the administrative history?
8 A. I probably would not have reviewed it if it
9 was available. It was irrelevant. I would rather look
10 at the regulations rather than the legislative history
11 which would be meaningless to me because they are
12 not -- the administrative regulations that we use are
13 something to be implemented, the legislative history is
14 an interesting anecdote.
15 Q. You have never in the course of your 30 years
16 practice looked at a preamble to regulations or looked
17 at legislative or administrative history with respect
18 to regulations in order to better implement those
19 regulations?
20 A. I have learned many years ago as a federal
21 official, quite active in legislative matters, that the
22 legislation itself is a document to be evaluated and
23 implemented and that the legislative history is
24 absolutely meaningless in the context of putting
L.A. REPORTING (312) 419-9292
1451
1 regulations or law into effect. Because if we went by
2 legislative history, each one of us would have a
3 different interpretation of what rules and regulations
4 are. That's why they end up in specific defined
5 guidelines even though they may be ambiguous in part.
6 Q. And if they're ambiguous in part, where does
7 someone like yourself go for clarification?
8 A. I rely on my training and my experience and
9 whatever libraries or documentation I have available to
10 me that I use on a standard basis in my office.
11 Q. But you don't consider administrative history
12 of the regulations you're seeking to interpret part of
13 that working body of information that you would rely
14 on?
15 A. That's correct.
16 Q. Have you ever read any United States Supreme
17 Court opinions where the Court has relied on
18 legislative history in order to resolve a problem of
19 statutory or regulatory interpretation?
20 A. Opinions of the United States Supreme Court
21 periodically come to my office through our planning
22 journals but I think they would be maybe more relevant
23 to somebody like yourself in the legal profession than
24 they would be to me as a planner working on more
L.A. REPORTING (312) 419-9292
1452
1 mundane matters. I would be more concerned about what
2 the opinion of the Court is versus how the Court got to
3 that opinion.
4 Q. Have you ever seen an invoice that LTD sends
5 its customers?
6 A. No.
7 Q. Do you know whether LTD breaks down on the
8 invoice a certain cost for the goods and a certain cost
9 for the freight forwarding, packaging and crating
10 services?
11 A. Since I haven't seen an invoice, I couldn't
12 answer your question.
13 Q. You didn't ask Mr. Voigt whether LTD
14 typically invoiced for the crating and packaging
15 services as a separate line item?
16 A. Again, it was not relevant to a land use
17 determination.
18 Q. You didn't ask Mr. Hara whether LTD invoiced
19 separately for the packing and crating services you
20 claim they provide their customers?
21 A. I think I answered that twice and the answer
22 is no.
23 MR. KAISER: Can we see the zoning map again, Mr.
24 Kolar.
L.A. REPORTING (312) 419-9292
1453
1 MR. KOLAR: Why certainly.
2 BY MR. KAISER:
3 Q. We're looking now at Respondent's Exhibit 90,
4 which you identified earlier as the Village of
5 Bannockburn zoning map. You can see that from where
6 you're seated, can't you, Mr. Kracower?
7 A. Partially, yes.
8 Q. And I'm looking in the upper left-hand corner
9 where it appears to be an "O," office research
10 district, in the far northwestern corner of
11 Bannockburn, is that where LTD's facility is located?
12 A. Yes.
13 Q. Do you see any manufacturing zones along the
14 tollway within the Village of Bannockburn?
15 A. No.
16 Q. So LTD is located within this office research
17 district, is that correct?
18 A. I can't see the legend from here but if
19 that's what the "O" means, the answer the yes.
20 Q. Yes, and I'll represent that's what the
21 legend says, office research district.
22 When you lectured at Northwestern University,
23 was the subject of your lecture interpretation and
24 application of the Standard Land Use Coding Manual?
L.A. REPORTING (312) 419-9292
1454
1 A. No.
2 Q. When you did work for the many municipalities
3 you listed including Glenview, Highland Park, Cicero,
4 Buffalo Grove, Des Plaines, Addison, Batavia,
5 Bensenville, did any of your services to those
6 municipalities require you to interpret or apply the
7 Standard Land Use Coding Manual?
8 A. No.
9 Q. The courses you took at the University of
10 Wisconsin in Madison, did any of those assign to you as
11 assigned reading the Standard Land Use Coding Manual?
12 A. That's an interesting question. I remember
13 that there was a professor by the name of Henry Fagen
14 at the University of Wisconsin who was in one of my
15 courses. And I remember that he was one of the authors
16 or one of the people who worked on the Standard Land
17 Use Coding Manual.
18 But recognizing that I began college in 1958,
19 I'm 60 years old, and it's the year 2000, my recall
20 isn't that great as to -- I'd probably have trouble
21 telling you what courses I took let alone whether or
22 not I looked at the Standard Land Use Coding Manual.
23 Q. Would you say that interpretation and
24 application of the tables within the Standard Land Use
L.A. REPORTING (312) 419-9292
1455
1 Coding Manual is closer to an art or a science?
2 A. What I remember from graduate school is that
3 planning is both an art and a science, and I think that
4 that would be applicable here too.
5 Q. And with art it's been said beauty is in the
6 eye of the beholder, have you heard that expression?
7 A. Yes.
8 Q. And could it also be said that with respect
9 to the proper classification using the Standard Land
10 Use Classification Manual that the proper
11 classification or an appropriate classification is also
12 open to the interpretation of the person called upon to
13 render the opinion?
14 A. No, that would be the science part of it.
15 Q. Please distinguish for me which parts of your
16 analysis were the scientific portion that could yield
17 only one correct answer and which parts were the
18 interpretive elements?
19 A. Well, there is an interpretive element I
20 think to all of it, but it's not that ambiguous or it's
21 not that it would lead one to dramatically stray. And
22 I think that the science part of it is the fact that
23 through a winnowing down or a deductive reasoning
24 process one can come up with the answers that I have
L.A. REPORTING (312) 419-9292
1456
1 come up with. So if experience and science go hand and
2 hand, and I think they do, I think that any planner
3 looking at this, although I guess I'm the only planner
4 doing it, but that any planner looking at this would
5 come up with the same conclusions that I have come up
6 with.
7 Q. Any planner? You don't think there is a
8 single planner who would look at it and come up with a
9 different classification?
10 A. I have testified to what I believe to be the
11 truth, and if there is somebody else that would like to
12 testify, they'd be welcome to do the same.
13 Q. And you would admit, wouldn't you, Mr.
14 Kracower, that someone could describe this differently
15 and not be necessarily wrong about the way in which
16 they described it?
17 MR. KOLAR: I object to that and probably should
18 have objected to a similar question to the appraiser in
19 that there is no land planner on the other side. So I
20 think it's an improper method of getting another land
21 planning opinion in when they didn't hire a land
22 planner. It calls for speculation as well.
23 HEARING OFFICER KNITTLE: I'll sustain it on
24 calling for speculation.
L.A. REPORTING (312) 419-9292
1457
1 BY MR. KAISER:
2 Q. Do most land planners in the Lake County area
3 charge $285 an hour for their services?
4 A. I have no idea what other people charge.
5 Q. Do you have any idea how much you have
6 charged LTD to date for your opinion?
7 A. No. I actually do not even review bills in
8 my office unless there is a problem with one.
9 Q. Do you think you would be sitting here today
10 being paid $285 an hour by LTD if you had told LTD in
11 the spring of 1999 that under this SLUCM code they're
12 actually a Class B land use?
13 MR. KOLAR: Objection, argumentative.
14 HEARING OFFICER KNITTLE: Sustained.
15 BY MR. KAISER:
16 Q. Have you ever spent time on the deck located
17 at the southwest corner of Henry and Leslie Weber's
18 property?
19 A. No.
20 Q. Have you ever spent time in Paul
21 Rosenstrock's kitchen?
22 A. No, I have never been in the gentleman's
23 kitchen.
24 Q. Would you consider a falling light fixture a
L.A. REPORTING (312) 419-9292
1458
1 threat to human health?
2 A. A falling light fixture? Could you tell me
3 where or what?
4 Q. Yes, a light fixture suspended from the
5 ceiling of Paul Rosenstrock's kitchen and eating area.
6 If you were seated at the table beneath that light
7 fixture and it fell, would that pose a risk to human
8 health?
9 A. It's nothing I testified to, but I assume if
10 a light fixture -- I don't have any expertise in his
11 kitchen, I have no expertise in the light fixture or
12 any facts about what you're talking about. The only
13 thing I can tell you is I imagine if a light fixture
14 fell on somebody, it would certainly not be beneficial
15 to their health.
16 MR. KAISER: Thank you. I have no further
17 questions.
18 HEARING OFFICER KNITTLE: Mr. Kolar.
19 MR. KAISER: Wait. Sorry. I spoke too soon. I
20 have a few quick questions if I may.
21 HEARING OFFICER KNITTLE: Go ahead.
22 BY MR. KAISER:
23 Q. I want to show you what's previously been
24 marked for purposes of identification as Complainants'
L.A. REPORTING (312) 419-9292
1459
1 Exhibits 60, 62, 63, 64 and I'm marking --
2 MR. KOLAR: Do you have copies for me?
3 MR. KAISER: You have been given copies.
4 HEARING OFFICER KNITTLE: I think you were up to
5 65.
6 MR. KAISER: -- Complainants' 66.
7 (Complainants' Exhibit No. 66
8 was marked for
9 identification.)
10 BY MR. KAISER:
11 Q. With respect to Complainants' 60, it's a
12 building permit preapplication for zoning and
13 architectural review approval, Village of Bannockburn.
14 Have you ever seen this document before, Mr. Kracower?
15 A. I don't recall.
16 Q. You note that it appears that the applicant
17 is LTD Commodities, Inc.?
18 A. Yes.
19 Q. And that they describe their interest in the
20 subject property as a warehouse addition?
21 A. Yes.
22 Q. Do you see that term?
23 A. Yes.
24 MR. KOLAR: I don't have copies of these. Can I
L.A. REPORTING (312) 419-9292
1460
1 have a moment to look at what you're showing him?
2 MR. KAISER: Sure.
3 MR. KOLAR: Because I was not given copies of
4 these exhibits.
5 (Pause in proceedings.)
6 HEARING OFFICER KNITTLE: Mr. Kolar, I have all
7 these admitted except C-61.
8 MR. KAISER: Okay.
9 HEARING OFFICER KNITTLE: Which was reserved, and
10 C-65.
11 MR. KOLAR: There is no 61 here.
12 HEARING OFFICER KNITTLE: I didn't realize he
13 hadn't included it. I thought he went from 60 to 64.
14 MR. KAISER: Let's see what 61 is.
15 HEARING OFFICER KNITTLE: 61 is a Bannockburn
16 ordinance.
17 MR. KOLAR: What he has here is 60, 62, 63, 64 and
18 a new one of 66.
19 HEARING OFFICER KNITTLE: Right. I have got 66.
20 60, 62, 63 and 64 are all previously admitted.
21 I wanted to tell you on 65 --
22 MR. KAISER: Which is the Schomer dep transcript.
23 HEARING OFFICER KNITTLE: -- I think we admitted
24 that.
L.A. REPORTING (312) 419-9292
1461
1 MR. KAISER: I think so. That was --
2 HEARING OFFICER KNITTLE: I can't read my --
3 MR. KAISER: I believe we stipulated to that the
4 first day.
5 HEARING OFFICER KNITTLE: Is that your
6 understanding as well, Mr. Kolar?
7 MR. KOLAR: Well, that's certainly something that
8 is part of the record, but there are objections in
9 there that would have to be resolved.
10 HEARING OFFICER KNITTLE: Right, I have "subject
11 to objections."
12 MR. KOLAR: Right, that's accurate then subject to
13 you looking at the objections.
14 HEARING OFFICER KNITTLE: Right, we haven't done
15 that yet, right?
16 MR. KOLAR: Right.
17 HEARING OFFICER KNITTLE: I just can't read my
18 note whether it's admitted or not.
19 MR. KOLAR: I thought you were going to do that on
20 your own.
21 HEARING OFFICER KNITTLE: I think I probably will
22 at some point.
23 MR. KOLAR: I have looked at them.
24 HEARING OFFICER KNITTLE: Go ahead, Mr. Kaiser.
L.A. REPORTING (312) 419-9292
1462
1 MR. KAISER: Thank you.
2 BY MR. KAISER:
3 Q. All right. Just to pick up the thread here,
4 Mr. Kracower, I understand that you do not recall
5 seeing Complainants' Exhibit 60, this building permit
6 preapplication for zoning and architectural review
7 approval, is that right?
8 A. Yes.
9 Q. Do you recall seeing C-62 which is a letter
10 from Lohan & Associates to David Lothspeich,
11 L-o-t-h-s-p-e-i-c-h, of the Village of Bannockburn
12 dated February 21, 1994?
13 A. No.
14 Q. You have never seen that or you don't recall
15 seeing it?
16 A. I just don't recall seeing it. I don't
17 remember that name.
18 Q. All right. And, again, that talks about the
19 LTD warehouse expansion, do you see that?
20 A. Yes, I do.
21 Q. C-63, a letter again from Lohan & Associates
22 to Mr. Lothspeich dated February 21, 1994, have you
23 ever seen that?
24 A. Not that I recall, no.
L.A. REPORTING (312) 419-9292
1463
1 Q. C-64, Village of Bannockburn ordinance, do
2 you recognize that?
3 A. I may have seen this -- I think I have seen
4 this before.
5 Q. In connection with the preparation of your
6 opinions in this case?
7 A. Yes.
8 Q. Do you recall about how much time you spent
9 looking at this document, Village of Bannockburn's
10 ordinances?
11 A. Well, I am not certain I have seen it. There
12 were several rezonings of the property dating back to
13 1977, and I don't know if that's one of them that I
14 have reviewed. I can't be that certain.
15 Q. But you see there in the first paragraph that
16 they refer to LTD is the occupant of a warehouse and
17 office facility?
18 A. Yes, I see that.
19 Q. Do you recall seeing anywhere in this
20 document reference to LTD operating a freight
21 forwarding service at the Bannockburn location?
22 MR. KOLAR: This document is in evidence?
23 HEARING OFFICER KNITTLE: Yes.
24 MR. KOLAR: Then I object. It speaks for itself.
L.A. REPORTING (312) 419-9292
1464
1 People can read it and see if it says that.
2 HEARING OFFICER KNITTLE: Sustained.
3 BY MR. KAISER:
4 Q. And I'm just asking, can you, Mr. Kracower,
5 show us anywhere in that document where it describes
6 LTD's operations as either freight forwarding services
7 or packing and crating services?
8 MR. KOLAR: Same objection.
9 HEARING OFFICER KNITTLE: Mr. Kaiser, how is that
10 different than --
11 MR. KAISER: I mean, if he wants to just say, "No,
12 I can't," then we're done, then Mr. Kolar can find it
13 and bring it to the Board's attention during his
14 response brief. I don't think it's in there.
15 THE WITNESS: It talks about loading areas.
16 BY MR. KAISER:
17 Q. Does it use the term "crating and packing
18 services" or "freight forwarding services"?
19 HEARING OFFICER KNITTLE: I'm going to sustain the
20 objection. I think the document will speak for itself;
21 and if it does say so, the Board will take note of
22 that.
23 MR. KAISER: Okay. Very good.
24
L.A. REPORTING (312) 419-9292
1465
1 BY MR. KAISER:
2 Q. Have you seen this letter from Mr. Kolar to
3 the Village of Bannockburn dated May 4, 1998 and
4 identified for the record as Complainants' Exhibit 66?
5 A. Yes, I have seen this.
6 Q. Did you read that in preparation of your
7 opinions that you offered here today?
8 A. Yes.
9 Q. Do you see here on Page 1 that Mr. Kolar
10 refers to FMC Corporation built an approximately
11 155,000 square foot warehouse with offices at the north
12 half of the LTD property?
13 A. Uh-huh, yes, I see that.
14 Q. At what point in your preparation and
15 analysis did you review Mr. Kolar's letter of May 4,
16 1998?
17 A. Rather early on.
18 MR. KAISER: Thank you. I have no further
19 questions.
20 HEARING OFFICER KNITTLE: Mr. Kracower, do you
21 want to take a break or --
22 THE WITNESS: No, I'm fine.
23 HEARING OFFICER KNITTLE: Mr. Kolar, do you need
24 any time?
L.A. REPORTING (312) 419-9292
1466
1 MR. KOLAR: No, I'd like to go ahead.
2 HEARING OFFICER KNITTLE: Let's do the redirect.
3 REDIRECT EXAMINATION
4 BY MR. KOLAR:
5 Q. In that letter of May 4, 1998 did you also
6 read the reference to the April 20, 1997 letter by Paul
7 Schomer?
8 A. Yes.
9 Q. And you read that Paul Schomer was
10 Bannockburn's noise consultant?
11 A. Yes.
12 Q. And in that letter of April 20, 1997 he
13 agreed with you that LTD should be a C, as in Charles,
14 classification?
15 A. That's correct.
16 Q. Again, in terms of that 400,000 square feet
17 thing in Bannockburn, generally or generically, it's a
18 warehouse, correct?
19 A. People such as yourself, and with all due
20 respect are lawyers, and there is another gentleman
21 here who's an architect who wrote a letter, Lohan
22 Company and others, there is nothing wrong calling the
23 entire structure a warehouse in a generic sense. And
24 that's commonly done, and I don't believe it's
L.A. REPORTING (312) 419-9292
1467
1 inappropriate. In terms of looking at the SLUCM code,
2 in having to be more definitive and more scientific,
3 it's necessary to break things down in a much more
4 definitive manner, which I have done and which
5 everybody who uses that SLUCM code is compelled to do.
6 So you can't say to somebody that they're dramatically
7 wrong when they talk in broad terms about a warehouse.
8 But the SLUCM code says you must look inside the
9 warehouse and look at the specific uses and the
10 predominant uses that are going on. And it also says
11 you must look at those areas that have, you know, the
12 predominant floor area and what's happening in there.
13 And that's when a person is compelled to make a more
14 specific land use determination.
15 Q. Where we are today, we can call this a
16 building, right?
17 A. We are in an office building today but there
18 are all kinds of office buildings. We happen to be in
19 a public governmental building or we could be in a
20 courthouse or we could be in an insurance building that
21 is labor intensive, but there are all types of office
22 buildings, there are all types of so-called warehouses,
23 there are all types of manufacturing plants, there are
24 all types of housing, but housing can be single family,
L.A. REPORTING (312) 419-9292
1468
1 multiple family townhomes. So that really is the
2 purpose of the SLUCM code. And if you read the
3 introduction of the code, it goes through the analogy
4 of how at that time HHFA and the Bureau of Highways
5 felt it was necessary to be more -- for cities to be
6 more specific in land use determinations.
7 Q. In terms of that SLUCM code, did you read in
8 my May 4, 1998 letter that it was published in 1969, at
9 least according to my letter?
10 A. Yes.
11 Q. Were you in college in 1969?
12 A. No, I was not.
13 Q. Well, if that's true, it would have been
14 published after you completed your education?
15 A. That would be correct. Maybe that's why I
16 never read it.
17 Q. Could be.
18 Let me ask you some of the follow-ups that
19 you weren't able to answer in cross examination.
20 You mentioned you were at LTD on five
21 occasions, correct?
22 A. Yes.
23 Q. And on four of those occasions what did you
24 notice regarding the tollway?
L.A. REPORTING (312) 419-9292
1469
1 A. On four of the five occasions I noticed that
2 the noise from the tollway was equal to, if not more,
3 severe than the generation of noise from the
4 truckloading docks at LTD.
5 Q. Would you say that on any of those four
6 occasions you were overwhelmed by the noise of the
7 tollway?
8 A. On four of those occasions, when I parked my
9 car and walked in front of the plaintiffs' three homes,
10 I was actually overwhelmed by the significance of the
11 noise from the tollway. I never anticipated that the
12 noise would be that severe.
13 Q. Mr. Kaiser mentioned or discussed with you
14 whether a berm could be built between LTD and the
15 complainants' properties, do you recall those
16 questions?
17 A. Yes.
18 Q. A good time for a landscape architect or land
19 planner to look at a berm would have been before this
20 whole subdivision was platted, correct?
21 MR. KAISER: Objection, leading.
22 HEARING OFFICER KNITTLE: Sustained.
23 BY MR. KOLAR:
24 Q. When would have been a good time for someone
L.A. REPORTING (312) 419-9292
1470
1 such as yourself to analyze a type of berm to put in
2 between LTD Commodities and the residential use in Lake
3 Forest to the north?
4 MR. KAISER: Objection, relevance.
5 HEARING OFFICER KNITTLE: Overruled.
6 THE WITNESS: It would have been at the time the
7 subdivision to the north of LTD was designed and
8 platted.
9 BY MR. KOLAR:
10 Q. And the berm that you described along 294 by
11 the new subdivision to the north, Conway Farms --
12 A. Yes.
13 Q. -- about how high is that berm?
14 A. I can only estimate that that would be
15 somewhere in the 20 foot range or more. It's a very
16 high berm.
17 Q. Could you fit a berm like that between LTD
18 and the complainants' properties at that width and that
19 height?
20 A. No because berms normally should be in the
21 range of three feet to one, and it would not physically
22 fit.
23 MR. KAISER: I'm going to object to this line of
24 questioning. It wasn't disclosed.
L.A. REPORTING (312) 419-9292
1471
1 HEARING OFFICER KNITTLE: Overruled. This was
2 covered on cross examination.
3 BY MR. KOLAR:
4 Q. And in terms of social and economic value of
5 LTD to the community, it's your testimony that the real
6 estate taxes generated is one aspect of that value,
7 correct?
8 A. Yes.
9 Q. Another aspect would be jobs created,
10 correct?
11 A. Yes, that's what I said.
12 Q. But you're not saying here today that those
13 two things are only things that go into determining the
14 social and/or economic value of a business, is that
15 accurate?
16 A. No, they're -- but I think the employment
17 base, the tax revenue and -- I mean, there are other
18 factors that I did not discuss such as secondary
19 sources of revenue. In other words. If you have in
20 excess of 60 employees, which they do, it's possible
21 that they buy goods and services in the community. So
22 there are other revenues and attributes that go into
23 not just LTD but all of the nonresidential uses in that
24 development.
L.A. REPORTING (312) 419-9292
1472
1 Q. Why is the length of time that LTD's
2 inventory would be in the warehouse before it's packed,
3 crated and shipped to their customers, why is that not
4 relevant to you? You had indicated that in an answer
5 to Mr. Kaiser.
6 A. I don't know whether it's 10 days, 30 days or
7 50 days has any relationship to determining the
8 classification of land use. I mean, once you know what
9 the use is, the time element is of no significance.
10 Q. As you sit here today do you know if LTD
11 Commodities includes in the cost it charges its
12 customers for its products, its labor cost which would
13 include picking product, packing product and shipping
14 it?
15 A. I would only -- I don't know as a fact, I can
16 only assume it would.
17 Q. You don't know if there is a separate line
18 item for packing and crating --
19 A. No.
20 Q. -- or if it's built into the cost of selling
21 the products, right?
22 A. No, I had indicated I'm not familiar with
23 their invoicing system or their accounting system.
24 Q. You know generally as a land planner that
L.A. REPORTING (312) 419-9292
1473
1 businesses try to price their goods or services so that
2 they'll make a profit?
3 A. I know I do that in my business. I assume
4 that's pretty much the American way unless it's
5 not-for-profit.
6 MR. KOLAR: I don't have any other questions.
7 MR. KAISER: Just a few.
8 HEARING OFFICER KNITTLE: Recross.
9 RECROSS EXAMINATION
10 BY MR. KAISER:
11 Q. Mr. Kracower, how often do you think or do
12 you know any of LTD's customers call up LTD and say,
13 "We don't want to buy your goods, we just want you to
14 pack and ship a few things of our own"? How often do
15 you think that happens?
16 A. I don't understand. I don't know what you
17 mean "of our own."
18 Q. Things that don't belong to LTD.
19 Say I'm one of LTD's customers, in the past I
20 bought the Santa Planter from them. I paid them the
21 invoice they sent me. Now I want them to store in
22 their warehouse and then ship to me a lawn mower, how
23 often do you suppose that happens?
24 A. I don't believe they sell lawn mowers.
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1 Q. Well, say I ask them to send me a nice towel
2 set but not one of the towel sets that LTD sells
3 through their catalog, do you think that happens very
4 often, Mr. Kracower?
5 A. I have no idea.
6 Q. How often do you think a customer of LTD's
7 calls up and says, you know, "I just need to store a
8 few of my own goods in your warehouse, give me 10
9 square feet in the back"? How often do you think that
10 happens?
11 MR. KOLAR: If at all.
12 BY MR. KAISER:
13 Q. If at all?
14 A. I have -- I just have no understanding of
15 what you're even asking me to be honest at this stage.
16 Q. You're telling the Board that LTD provides
17 packing and crating services to its customers. I'm
18 asking you how often do those customers, to whom LTD is
19 providing packing and crating services, how often do
20 they call up LTD and say, "I'd like you to pack and
21 crate products of my own, something I'm manufacturing"?
22 A. I have no idea. I think you're best off
23 asking somebody from LTD if that ever happened.
24 Q. Did you ever ask anyone at LTD whether that
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1 happened?
2 A. I couldn't even contemplate that would
3 happen, so the answer is no.
4 Q. And you couldn't contemplate that because
5 that's not what LTD does, right?
6 A. I don't believe that's predominantly what
7 they do.
8 MR. KAISER: Thank you. I have no further
9 questions.
10 MR. KOLAR: No questions.
11 HEARING OFFICER KNITTLE: Thank you, sir. You can
12 step down.
13 Let's go off the record.
14 (Off the record.)
15 HEARING OFFICER KNITTLE: Mr. Kaiser, you wanted
16 to move for the admission of C-66?
17 MR. KAISER: Yes, I would ask that the Board to
18 receive Complainants' Exhibit 66.
19 HEARING OFFICER KNITTLE: Mr. Kolar, do you object
20 to that.
21 MR. KOLAR: No.
22 HEARING OFFICER KNITTLE: That's admitted.
23 (Complainants' Exhibit No. 66
24 was admitted into evidence.)
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1 HEARING OFFICER KNITTLE: That's it for today.
2 We'll see you back here tomorrow.
3 MR. KOLAR: 9:30 tomorrow?
4 HEARING OFFICER KNITTLE: 9:30.
5 (Which were all the
6 proceedings had in the
7 above-captioned cause at this
8 time.)
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1 STATE OF ILLINOIS )
) SS.
2 COUNTY OF C O O K )
3 I, DEBORAH T. BRAUER, Certified Shorthand
4 Reporter and Notary Public in and for the County of
5 Lake, State of Illinois, do hereby certify that I
6 caused to be reported in shorthand and thereafter
7 transcribed the foregoing transcript of proceedings.
8 I further certify that the foregoing is a
9 true, accurate and complete transcript of my shorthand
10 notes so taken as aforesaid; and further, that I am not
11 counsel for nor in any way related to any of the
12 parties to this action, nor am I in any way interested
13 in the outcome thereof.
14 IN TESTIMONY WHEREOF, I have hereunto set my
15 hand and affixed my notarial seal this 6th day of June,
16 2000.
17
18 ________________________________
Deborah T. Brauer, CSR
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