1021
1 BEFORE THE
ILLINOIS POLLUTION CONTROL
2 BOARD
3 IN THE MATTER OF: )
DAVID AND SUSI SHELTON, )
4 )
Complainants, )
5 )
vs. )PCB 96-53
6 )Volume 6
STEVEN AND NANCY CROWN, )
7 )
Respondents. )
8
9
10 REPORT OF PROCEEDINGS taken in the
11 above-entitled matter, taken before MS. JUNE
12 EDVENSON, Hearing Officer for the Illinois
13 Pollution Control Board, commencing on the 19th
14 day of
Augut, A.D., 1996 at the offices of the
15 Illinois Pollution Control Board, 100 W. Randolph
16 Street, Chicago, Illinois, at approximately 9:00
17 a.m.
18
19
20
21
22
23
24
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1022
1 PRESENT:
2
3
4 THE JEFF DIVER GROUP
5 BY: MR. JEFFREY DIVER &
6 MR. KAISER
7 For the Complainants;
8
9 GOULD & RATNER
10 BY: MR. RICHARD ELLEDGE &
11 MR. ROBERT CARSON
12 For Respondents
13
14
15
16
17
18
19
20
21
22
23
24
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1023
1 I N D E X
2 D C RED REC
3 DAVID SHELTON 1025 1076 1093
1095
4
BRADLEY EDWARD MAUTNER 1097 1124 1163 1168
5
ROBERT PAUL ELFERING 1174 1189
6
PETER KELLER 1194 1210
7
E X H I B I T S
8
OFR'D REC'D
9
Respondent's Exhibit No. 8 1111 1112
10 Complainant's Exhibit No. 99; 5,6 1135 1138
Complainant's Exhibit No. 112 1170 1171
11 Complainant's Exhibit No. 109 1171 1172
Complainant's Exhibit No. 110 1171 1172
12 Respondent's Exhibit No. 9 1187
Complainant's Exhibit No. 81 1219
13 1222
Complainant's Exhibit No. 23 1249
1249
14
15
16
17
18
19
20
21
22
23
24
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1024
1 THE COURT: Good morning and welcome.
This is the
continution of the hearing of the
2 contested case of the
Sheltons vs the Crowns. Case
Number PCB 96-53. And, this is a noise
3 enforcement action. My name is June
Edvenson, I'm
the Board's Hearing Officer for this case. And,
4 counsel for the parties have entered their
appearances. We are at the point in our
5 proceedings where we are in the midst of the
cross-examination of Mr.
Shelton by counsel for
6 Respondents, Mr. Robert Carson. Would you like to
continue at this time, counsel?
7 MR. CARSON: Yes, we're ready to proceed.
MR. DIVER: Madam Hearing Officer, if I
8 can indicate, on the record, that on behalf of the
Complainants, there's one additional person in the
9 room today that's our legal associate, Elizabeth
Molson, just so the record is clear on that.
10 THE COURT: Thank you. Welcome. All
right, then, let's have the re-swearing of the
11 witness.
(Witness sworn)
12 D A V I D S H E L T O N,
after having been first duly sworn on oath,
13 deposes and testifies as follows:
CROSS EXAMINATION
14 BY MR. CARSON:
Q Good morning, Mr.
Shelton.
15 A Good morning.
Q Mr.
Shelton, I'd like to take you back to
16 June of 1995, sir. Do you recall, at that time,
that there were some sound readings that were done
17 by Mr. Al Shiner in June of 1995?
A Yes.
18 Q And, you were present for those sound
readings, were you not?
19 A Yes.
Q And, do you recall, sir, that those sound
20 readings were taken after the acoustical enclosure
was installed at the Crown residence--
21 A Yes.
Q -- around their air conditioning unit?
22 A Yes.
Q Did that acoustical enclosure result in a
23 substantial reduction in the sound emitted from
the unit?
24 A Not until the cones were removed.
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1025
1 Q After the removal of the cones, which was
also in June of 1995?
2 A Yes.
Q At that time, sir, did those
3 modifications of the enclosure and the cone
removal result in substantial reduction in the
4 sounds emitted from the unit?
A Yes.
5 Q You heard Mr. Shiner testify in these
proceedings, did you not?
6 A Yes.
Q And, Mr. Shiner described, in his expert
7 opinion, that the perceived reduction in sound to
the listener would be that the perceived sound
8 would be cut in half as a result of those
modifications?
9 A Yes, he said that.
Q Do you agree with that, sir?
10 A I certainly don't disagree with it.
Q This is Exhibit No. 41. It was already
11 placed into evidence as part of the Petitioner's
case. And, this is your June 26th, 1995 letter to
12 Steve Crown, is that what that is, sir?
A Yes.
13 Q Now, according to this letter, you have
received and have reviewed Mr. Shiner's
14 measurements at the time that he sent them, is
that right?
15 A Yes.
Q And, it states, in the opening paragraph,
16 that the results of Monday night's test show that
the noise levels are still far in excess of IPCB
17 standards. You see that?
A Yes, that's following the sentence where
18 I said the unit enclosure --
Q Yes. The IPCB standards that you're
19 referring to there were what?
A The Illinois Pollution Control Board
20 Numeric Noise Standards.
Q Were you aware, sir, at the time that you
21 sent this letter, that those numeric noise
standards are not applicable to the sound emitted
22 from one residence to another residence?
MR. KAISER: Objection, calls for a legal
23 conclusion.
MR. CARSON: I'm asking for the witness'
24 state of mind. He sent this letter. He made a
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1026
1 statement. I want to know what his belief was at
the time he sent this letter.
2 MR. KAISER: Excuse me, Madam Hearing
Officer. If Mr. Carson would rephrase the
3 question so that, in Mr. Carson's opinion, the
Illinois Pollution Control Board standards are
4 inapplicable, because I don't believe that issue
has been resolved, for purposes of this hearing.
5 So, if Mr. Carson wants to state that there's
question about the application of those
6 standards--but, to state it as the law of this
case, as Mr. Carson has done, is clearly
7 inappropriate. There's not been a ruling by the
Board as to whether those standards are, or are
8 not, applicable. And, it's our position that they
are, in fact, applicable.
9 MR. CARSON: Briefly responding, Ms.
Edvenson, is think that what Mr. Kaiser is
10 suggesting that I'm not allowed to ask leading
questions on cross-examination. And, I believe
11 that I am. I'm not intending to go make
statements of what the law is. I'm asking the
12 witness a leading question, and that's all that
I'm intending to do, as to what his state of mind
13 was at the time.
MR. KAISER: Parenthetically a misleading
14 question.
THE COURT: We've already entertained a
15 very similar question to this question when we
last met. And, I asked that the witness not be
16 asked to give any sort of legal opinion, because
we wish to separate the examination of the law
17 from the facts and stick with an examination of
the facts before this witness. However, if your
18 question is limited to whether or not he had an
understanding that it was or was not applicable,
19 although I find the relevance of it somewhat
questionable, I'll permit him to answer whether or
20 not he felt it was or was not, at the time that he
wrote the letter.
21 MR. CARSON: Thank you, your Honor. I'll
rephrase the question.
22 THE COURT: So, if you can rephrase it
narrowly, we'll proceed with it.
23 BY MR. CARSON:
Q Mr.
Shelton, at the time that you sent
24 this letter, did you have an understanding as to
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1027
1 the applicability of those IPCB standards?
A It was my --
2 Q My question, sir, was did you have an
understanding.
3 A Yes.
Q And, how did you gain that understanding?
4 A Through discussions with counsel and Greg
Zak.
5 Q So, you had already consulted with
counsel as to the applicability of the IPCB
6 standards to the noise emitted from Mr. Crown's
air conditioner onto your property, at the time
7 you wrote this letter?
A Yes.
8 Q And, you had the benefit of counsel's
interpretation of the statute at the time that you
9 wrote this, the regulations, the standards, at the
time you wrote this letter?
10 A I had a general impression that I had
formed. I don't recall specifically asking
11 counsel to give me a definitive answer as to the
legal technicalities. But, I had a general
12 understanding that the numeric standards would
apply here.
13 Q It was your belief that the numeric
standards did apply?
14 A Yes.
Q Looking to the bottom of Exhibit No. 41,
15 on the first page, there's a statement that there
are, or there were, certain other problems which
16 Al was unable to measure at the time. And then,
you described, for example, sound surges as
17 components of the system cycling on and off. It
was your belief, sir, that Mr. Shiner's
18 measurements were not complete?
A I'm not sure how to answer the question.
19 Insofar as what he measured, I had no reason to
doubt that they were true and accurate readings.
20 There were certain measurements that it would have
been beneficial to have taken, that did not take
21 place. And, they're described here in the
attachment to this letter.
22 Q What you're suggesting, then, in this
sentence about the certain other problems was that
23 there was a problem creating the problem?
A I don't understand the question.
24 Q Well, you had Mr. Shiner there for the
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1028
1 purpose of measuring the problem. But, evidently,
the problem could not be re-created through that
2 method, is that what happened, sir?
MR. KAISER: Objection, excuse me, Madam
3 Hearing Officer. We've had this objection as well
where, through a leading question, Mr. Carson has
4 attempted to characterize the function Mr. Shiner
served in performing the sound measurement
5 readings. And, to the extent he characterizes Mr.
Shiner's involvement as an attempt to solve the
6 problem, I don't believe that was the testimony by
Mr. Shiner or Mr.
Shelton. Mr. Shiner's role was
7 to obtain noise measurements.
MR. CARSON: And, my question didn't say
8 anything about solving the problem, it was
measuring the problem.
9 THE COURT: Could you rephrase your
question, Mr. Carson?
10 BY MR. CARSON:
Q Mr.
Shelton, did you, or did you not,
11 consent to having Mr. Shiner at your property that
night to take these measurements?
12 A Yes. As agreed to in our January
meeting with representatives of the Village,
13 Steven Crown and I were jointly paying for the
readings to be done that evening.
14 Q And, the purpose was to measure the sound
emitted from Mr. Crown's air conditioner onto your
15 property, right?
A At the lot line.
16 Q And, your concern, as expressed in this
letter, was that the problem sounds couldn't be
17 created for him to measure, is that right?
A We, there was an agreed upon protocol
18 that Mr. Shiner reached with somebody.
Q I'm sorry, Mr.
Shelton, I don't mean to
19 interrupt you. But, my question was, in
expressing this statement, certain other problems
20 which Al was unable to measure. Were you
expressing your opinion that there was a problem
21 creating the problem?
A There were certain sound readings that
22 were not taken that might have been helpful in
letting us know about the totality of the problem,
23 such as the second floor reading.
Q Well, there was also some difficulty
24 getting the air conditioner to cycle on and off,
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1029
1 right?
A Mr. Carson is referencing the last
2 paragraph of Page 1.
Q There's also a reference in the middle of
3 Page 1 to the attachment, other issues, which is
part of Exhibit No. 41.
4 A Could you repeat the question?
Q In addition to not being able to take
5 measurements at the second story window, there was
also some difficulty obtaining the sound surges
6 that you described, right?
A Yes.
7 Q Now, looking to the second page of
Exhibit No. 41, the third paragraph down, the
8 opening sentence, "As you know, our house is on
the market." You're referring there, sir, to your
9 efforts to sell your home, is that right?
A Yes.
10 Q And, how long was it that you had your
house listed for sale?
11 A I believe we listed it for sale
officially in early 1995. I believe in February,
12 if memory serves.
Q Is it correct that the house was listed
13 for about seven months?
A Yes.
14 Q And, at that time, you entered into a
lease?
15 A It was off the market for a period of
time between when it was on the market for sale,
16 and when we put it on the market for lease.
Q And, during the seven months that it was
17 listed for sale, I take it you didn't receive any
offers that were of a level that you believed you
18 should receive for the house, is that correct?
A Yes.
19 Q Please turn to, in the attachment which
is part of Exhibit No. 41, entitled "Other
20 Issues". And, this description of other issues, I
assume, is something you prepared?
21 A Yes.
Q Going on to Page 3 of the other issues,
22 there's a section entitled
Shelton Air
Conditioner.
23 A Yes.
Q According to this statement, Mr. Shiner
24 also tested the
Shelton's air conditioners, is
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1030
1 that correct?
A Yes.
2 Q You were there when those tests were
done?
3 A Yes.
Q And, evidently, one of the units was
4 measured as exceeding the IPCB nighttime levels.
That was your understanding, wasn't it?
5 A He tested with both of our air
conditioners on. The weighted average was below
6 the nighttime levels. However, at three or four
frequencies, there was a very slight
exceedance.
7 Q Now, it says here, nevertheless, there
are three frequencies where the
Shelton unit is
8 slightly above the nighttime standards. I guess
that's what you just said, right, there were three
9 frequencies where it exceeded the IPCB nighttime
standards?
10 A Slightly.
Q Is it your belief that slight
exceedance
11 isn't relevant?
MR. KAISER: Objection, argumentative.
12 THE COURT: Sustained.
BY MR. CARSON:
13 Q You stated, in this letter, that the unit
slightly exceeded the nighttime standards. Is
14 there some expertise that you're relying on that
renders the
exceedance only slight?
15 A I was basing that statement upon my
knowledge, which I had developed some limited
16 knowledge during the course of this case, about
noise levels. And, 1, 2, or 3 decibels, 1 or 2
17 decibels is frequently, as I understand it,
generally not deemed to be major.
18 Q So, you viewed that slight
exceedance to
be not a big deal?
19 A Yes, compared to the Crown's
exceedance.
Q You viewed it as not a big deal, right?
20 A Right, based on the Crown's
exceedance.
Q Now, at the same time you were asking Mr.
21 Crown, were you not, to not only meet, but meet an
adequate margin of safety below the IPCB
22 standards, isn't that right?
A We requested that, yes.
23 Q That was in your, we've already looked at
your letter of July 21st, Exhibit No. 47 where you
24 requested that the Crown unit meet an adequate
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1031
1 margin of safety below Illinois' Numeric
Standards?
2 A Yes.
MR. KAISER: Objection. I believe that
3
mischaracterizes that exhibit. I believe that
Exhibit No. 47 had to do with the design, and
4 factoring in a level of safety, in the design of
an enclosure, and other steps to
remediate the
5 sound problem, and didn't establish the standards
that Mr.
Shelton was looking for.
6 MR. CARSON: I'm not sure if that was an
objection, or whether that was a speech. Can I --
7 THE COURT: Let's just have it be
clarification that the reference that you made,
8 Mr. Carson, was solely for the purpose of
reminding the Board what exhibit we're talking
9 about, at this point.
You can proceed.
10 BY MR. CARSON:
Q Just so we're clear exactly what Exhibit
11 No. 47 says, here's a copy of it. Did you, or did
you not, say to Steve Crown, or rather to Alan
12 Shiner, regarding the Crown air conditioner, that
you want any changes done right so that there's an
13 adequate margin of safety below Illinois' numeric
standards? You did say that in that letter,
14 didn't you?
A I did say that. And, the reason I said
15 that --
Q Well, if your counsel wants to ask you a
16 question, your counsel can ask you a question.
I've asked you if you said that. You've told me
17 you did. If you don't mind, I'll go to the next
question.
18 A Yes.
Q Thank you. Now, regarding this, not a
19 big deal, where your unit exceeded the standards
at three frequencies. Was that one of your units
20 or both of your units?
A Both of our units were on.
21 Q Now, in Exhibit No. 41, you just had the
singular, you said "Nevertheless, there are three
22 frequencies where the
Shelton unit is slightly
above the nighttime standards."
23 A To the best of my knowledge, both of the
units were on. And, it may have been a slip when I
24 used the number here, the singular rather than
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1032
1 plural.
Q How many units did you have?
2 A We had two units.
Q Was one of them bigger than the other?
3 A I believe that one is three tons, and the
other is two tons.
4 Q Where was the three ton unit located?
A I believe, and the reason I say I
5 believe, is that I'm trying to recollect which of
the units is which. The larger unit is located on
6 the ground on the south side of our house. And,
the smaller unit, at that time, was located
7 rooftop, over our family room. It's since been
relocated to insure that there isn't the slightest
8 violation of the IPCB standards on the Crown lot
line.
9 Q We have Exhibit No. 51 on the table in
front of you. This is the plan which was
10 represented in earlier testimony. And, right now,
if you would, point to Exhibit No. 51 where the
11 three ton unit was located at the time the
measurements were taken in June of 1995? Please
12 point, put a mark on it.
A I'm sorry, next to the word "garage".
13 Q And, the two ton unit, which you stated
was on the roof, but has since been moved now,
14 where was that located?
A Approximately here.
15 Q Maybe if we could just put a X --
THE COURT: If you'd like to use red or
16 something--
Q Using this red pencil --
17 THE COURT: Contrasting color.
BY MR. CARSON:
18 Q Can you put maybe a two ton with a circle
around it? And, the other unit, if you can put
19 three ton with a circle around it? Thank you.
And those--you've marked Exhibit No. 51
20 in the manner I've asked you to. And, those are
the units, the locations of the units that existed
21 in June of 1995?
A Yes.
22 Q Now, regarding the configuration of your
house. There's a seating area noted, and that
23 would be to the east, the east side of your house?
A Yes.
24 Q That's the patio you testified about
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1033
1 earlier?
A Yes.
2 Q Is there also a screened in porch on that
side of the house?
3 A No, no. There's a family room on the
southeast side of the house, south of the patio.
4 Q So, the unit, the two ton unit was on the
roof above the family room?
5 A Yes.
Q Which would be the east wall, exterior
6 wall of the house. Could you draw that in a blue
pencil?
7 A Roughly, this would be roughly the east
wall. The family room.
8 Q So, the family room protrudes to the east
of the house?
9 A Yes.
Q Beyond the rest --
10 A Yes.
Q And, the patio is adjacent to that family
11 room?
A Yes.
12 Q And, also protrudes a little further--
A Yes.
13 Q --as shown on Exhibit No. 51. And, your
son, David's, room is directly above the family
14 room, or is it inside, or is it west?
A It's to the west.
15 Q And, above?
A And above.
16 Q Can you draw in where David's room was
located?
17 Thank you. And, you testified that the
rooftop unit was
relocted, at some point. When
18 was that done?
A It was supposed to have been done right
19 after the readings in the summer of 1995.
However, it did not, because of weather delays and
20 scheduling problems with our air conditioning
contractor, did not happen until this summer. It
21 happened in July.
Q Where was it moved to?
22 A It was moved directly to the east of the
house, on the west edge of the patio, between the
23 house and the patio.
Q Maybe if we take this red pen and just
24 put an arrow and
indicte where it was relocated.
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1034
1 Where's the master bedroom located?
A The master bedroom is located on the
2 northeast corner of the house. Would you like for
me to draw that?
3 MR. DIVER: Let the record show the
witness is taking a black or blue pen --
4 A I'll note it as MB, master bedroom.
BY MR. CARSON:
5 Q Again, on Exhibit No. 41, sir, and the
page we were looking at, Page 3 of Other Issues
6 where you were talking about the
Shelton air
conditioner.
7 A Yes.
Q It states, in the last sentence on that
8 page, "However, they are taking immediate steps to
insure that the unit complies with the IPCB
9 standards at all frequencies". And, the "they" in
that sentence is you?
10 A Yes.
Q You and your family?
11 A Yes.
Q And, according to this statement that was
12 made in June of 1995, you were taking immediate
steps to comply with the IPCB nighttime standards
13 with respect to your own air conditioning units,
right?
14 A Yes, sir.
Q And what, if I'm elaborating on what you
15 said earlier, evidently what you deemed to be the
appropriate response would be to move that rooftop
16 unit down to the patio area?
A We did two things. We first had two
17 different air conditioning firms come out and look
at our air conditioning situation. Based upon
18 their recommendations, we hired Dave's Heating and
Air Conditioning of Evanston, who had done work at
19 our house before, to do two things. One, with the
larger unit on the outside of the house, there
20 were loose parts on it. We had them tightened up.
This is an older unit, and he tightened those up.
21 Second, he determined that we should put a
compressor cover over the smaller unit rooftop,
22 and that we should relocate it. And so, we engaged
him to do that. Unfortunately, as I mentioned a
23 moment ago, it was in the height of the summer.
He was not able to get it done until this summer.
24 Q So, with respect to that rooftop unit,
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1035
1 you not only moved it down to the patio, you also
put a compressor cover over it?
2 A Yes. It was supposed to have one to
begin with. But, apparently, it had never been
3 installed, which we did not know at that time.
Q When that unit was on the roof, how far
4 was it from David's window?
A It wasn't far at all. But, we very
5 seldom used the unit. And, as I said here, as far
as we knew, as of mid-summer of 1995, we hadn't
6 had it on after 10:00 p.m. once. And, as my wife
testified, if we used it six or seven times during
7 the summer, that would be the maximum extent. So,
it was never a problem.
8 Q So, when your son described the death hum
that he was hearing in his bedroom, did you take
9 any steps to determine whether that death hum was
coming from your air conditioner?
10 A We knew it was coming from the Crown air
conditioner.
11 Q Even though this loud unit, that which a
compressor cover had never been installed, was
12 right outside his window?
A We didn't use it at night. We seldom
13 used it during the day.
Q How long had that rooftop unit been
14 there?
A Since we put the original addition on the
15 house, which would have been the summer of 1990.
Q By the way, Exhibit No. 47, which we
16 looked at just a moment ago, has an attachment
which, there was some discussion earlier in these
17 proceedings about it being a portion of a
Trane
engineering bulletin?
18 A Yes.
Q And, you testified that you sent a copy
19 of the letter, Exhibit No. 47, to Steve Crown in
July of 1994?
20 A Yes.
Q It doesn't say, does it, on the letter,
21 that the attachments were included with the
letter?
22 A It doesn't say that, say it on the
letter, no.
23 Q Did you put the letter in an envelope
yourself?
24 A Yes, I did.
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1036
1 Q And, do you know, can you tell us, of
your own recollection, as you sit here today, that
2 the enclosure was also put into that envelope?
A To the best of my recollection, yes.
3 Q You can't really say for sure, can you?
A Well, I had the letter--
4 MR. KAISER: Objection, misstates his
testimony.
5 MR. CARSON: I don't even understand that
objection.
6 MR. KAISER: Argumentative.
THE COURT: Overruled. I'll let the
7 witness attempt to recollect.
A I wrote the letter myself on the word
8 processor, and printed it, and put it in an
envelope. To the best of my recollection, it
9 included the attachments.
BY MR. CARSON:
10 Q But, you can't really say for sure
whether the attachment was part of it or not, can
11 you?
A I suppose I can't testify -- I don't know
12 quite how to answer that. To the best of my
recollection, it was included.
13 Q Mr.
Shelton, you were back in
Winnetka in
July of this year, at which time Mr.
Zak took some
14 sound measurements of the system, is that right?
A I believe it was in June.
15 Q In June?
A Yes.
16 Q And, at that time, it was your
understanding that there had been some additional
17 modifications to the system, which would limit the
number of compressors and the number of fans that
18 would be in operation at any one time?
A Yes.
19 Q And, you personally had an opportunity to
listen to the sound emitted from the unit at that
20 time, did you not?
A Yes.
21 Q And, would you agree that the
modifications had resulted in a substantial,
22 further substantial reductions in the sound?
A They had resulted in a reduction, as best
23 I can judge.
Q It was a noticeable reduction, to your
24 ears, right?
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1037
1 A Yes. I could notice a reduction, yes.
Q And, in fact, you told Greg
Zak that
2 evening that the unit was significantly quieter,
didn't you?
3 A I don't recall specifically telling him
that, but --
4 Q Words to that effect?
A Yes. It was my opinion, at that time,
5 that there was a reduction in the sound.
Q And, did you visit the site again last
6 week; that is, on Thursday, August 15th?
A Yes.
7 Q And, you gave a listen at that time, is
that right?
8 A Yes.
Q And, some additional sound measurements
9 were taken?
A Yes.
10 Q Did you make notes of the sound
measurements as they were reported to you?
11 A I did.
Q Do you have those notes with you?
12 A Yes, I have them in my case.
MR. CARSON: With your Honor's
13 permission, can the witness pull his notes out?
THE COURT: Yes.
14 A These are the notes that I took that
evening. These are some, I transcribed those to a
15 worksheet, which is my own --
MR. KAISER: Can we have just a moment to
16 examine the documents?
THE COURT: Yes. Off the record to
17 examine documents.
(Off the record)
18 THE COURT: We'll go back on the record,
and there's been some concern expressed about
19 whether the Respondent's counsel should be
permitted to look at Mr.
Shelton's notes, which
20 were taken during the recent noise emission test.
MR. CARSON: And, your Honor, I'd like
21 the record to also reflect that Mr.
Shelton took
the documents out of his briefcase and gave them
22 to me. And, Mr.
Elledge and I were reviewing
them. And, Mr. Kaiser stood up across the room
23 and removed them from Mr.
Elledge's hands, and is
now contending that we're not supposed to see them
24 because they're Mr.
Shelton's personal notes.
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1038
1 MR. KAISER: Yes. Let me elaborate on
that, Madam Hearing Officer, if I may. These are,
2 in fact, Mr.
Shelton's personal notes. Now, on
August 16th, 1996, the Respondent hired an
3 acoustical engineer to obtain noise measurement
readings. Clearly, the best evidence of what the
4 results that evening are, are the numbers obtained
by his paid technician. To the extent Mr.
5
Shelton's notes contain things other than a
reiteration of the numbers that Mr. Bob
Elfering
6 provided to Mr.
Shelton on the night of August
15th, 1996; to the extent they contained his
7 thoughts or conclusions about reductions, or lack
of reductions, to noise readings; to the extent
8 they contain information which would be
privileged, yes, I object to Mr. Carson, Mr.
9
Elledge, and Mr. Crown looking at those.
THE COURT: Thank you. I believe that we
10 asked for the notes for the purpose of permitting
the witness to refresh his recollection with
11 respect to a line of questioning that Mr. Carson
was going to proceed with. Mr. Carson, did you
12 have questions with respect to these issues that
you would like to go on with at this time?
13 MR. ELLEDGE: May I speak to this,
please, Madam Hearing Officer? On Friday evening,
14 I believe, I communicated to Jeff Diver personally
that I would like him to come and produce his
15 notes --
MR. DIVER: The notes--
16 MR. ELLEDGE: -- for my inspection.
MR. DIVER: The notes of the readings,
17 yes. I said the notes of the readings themselves.
MR. ELLEDGE: They were just pulled out
18 of my hands, your Honor.
THE COURT: In other words, you said the
19 notes of the readings.
MR. DIVER: The notes of the reading, not
20 the other notes.
THE COURT: In other words, you said the
21 notes of the reading would be available to
Respondent's counsel?
22 MR. DIVER: The notes of the readings,
yes.
23 MR. KAISER: And, we're happy to provide
the two pages, which contain the notes of the
24 readings. And, what I've withdrawn from Mr.
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1039
1
Elledge's hands are three pages of handwritten
notes, prepared by Mr.
Shelton, and one page
2 worksheet that he also prepared.
MR. ELLEDGE: I know of no privilege
3 which makes that not discoverable, under these
circumstances.
4 MR. KAISER: Well, attorney-client work
product might be one thing. Documents prepared in
5 anticipation of litigation might be others. To
the extent he hasn't shown those to anyone, other
6 than his attorney, I think we can assert the
privilege.
7 THE COURT: Counsel, thank you.
MR. KAISER: Thank you.
8 THE COURT: Has Respondent's counsel
asked for any of the personal notes, or does
9 Respondent's counsel simply want to look at the
test results?
10 MR. ELLEDGE: He had a tablet that night,
Thursday night. I asked to see his "notes". I
11 did ask if they would be produced at hearing on
Monday morning.
12 THE COURT: And, what was the response?
MR. ELLEDGE: He called, put a phone call
13 in, at that point, on the spot, to Mr. Kaiser and
I said please make sure that, if possible, Mr.
14
Shelton bring his notes with him to the hearing on
Monday morning.
15 MR. KAISER: That doesn't mean we waive
the right to object. It indicates that, as of
16 Friday, without having had the benefit to review
the notes, Mr. Diver agreed that he would require,
17 or ask Mr.
Shelton to bring the notes to the
hearing. It didn't necessarily mean that, without
18 reviewing those notes, we would tender them to
counsel for Respondents.
19 THE COURT: Without an offer of proof, I
see no reason to proceed in that area with respect
20 to Mr.
Shelton's personal notes. With respect to
the test results, I'm assuming that these are
21 going to come into examination in the case before
we conclude. So, let's proceed.
22 MR. CARSON: Allow me to ask the witness
a few questions about the notes, for
foundational
23 purposes.
THE COURT: I'm sorry, did we have an
24 objection, Mr.
Elledge?
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1040
1 MR. ELLEDGE: No, your Honor.
BY MR. CARSON:
2 Q Mr.
Shelton, on the table before you are
some
handwrtten notes from a yellow pad, right?
3 A Yes.
Q How many pages do you have, sir?
4 A I have two pages of notes that I made of
the evening of the 15th.
5 Q And, there are some other pages from a
yellow pad?
6 A Yes.
Q How many pages are in there?
7 A Yes, I subsequently, the following day
and over the weekend, made some comparisons to
8 earlier readings and jotted down some subsequent
notes. It's four pages of those, plus this
9 worksheet.
Q And, for what purpose did you prepare
10 those notes?
A To try to determine what progress had
11 been made in reducing the noise level.
Q And, in preparing those notes, you
12 reviewed the prior readings as they had been
reported to you?
13 A Yes.
Q And, you compared those to the more
14 current readings?
A Yes.
15 Q And, you made notes of that comparison?
A Yes.
16 Q And, were you making this evaluation, in
part, to help yourself prepare for your testimony
17 at this hearing?
A Yes.
18 Q At the time that you were present at the
Winnetka property on last Thursday, August 15th,
19 did you find the sound emissions to be again
substantially reduced?
20 A They were substantially reduced at the
second floor level. Though, I must say, I did not
21 get on the roof, as did Mr.
Elledge and Mr.
Elfering, to do the readings. But, based upon the
22 readings, there was a very significant reduction
in those noise levels from when Mr.
Zak had
23 measured the noise levels in June. I did notice
that when the air conditioner was operating at its
24 low level of operation, with the fan speed
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1041
1 reduced, per the new variable speed fan mechanism,
that it was much reduced. It was significantly
2 reduced from the noise levels earlier. I came
away having only two concerns there.
3 Q Can I stop you there and ask you another
question? You stated that you found the noise to
4 be substantially reduced at the second story,
based on the readings as reported to you?
5 A Yes.
Q What about in the patio area?
6 A At the low level of operation, the noise
was very significantly reduced in our backyard and
7 the lot line.
Q The low level of operation, that's the
8 operation that was in use last Thursday evening?
A Well, we tested both the low level of
9 operation, and the maximum level of operation on
Thursday evening. At the low level of operation,
10 it was very significantly reduced. At the maximum
level of operation, there was some improvement
11 from where it had been, to the best of my
recollection, in June. However, there was an
12 extremely loud volume of cricket noise last
Thursday night, which was not there in June. So,
13 it was a little hard to distinguish the
differential. The numbers would indicate that
14 there was some modest reduction, from the June
levels, when operating at
max capacity. However,
15 at two frequencies, one in particular, 2,000 hertz
frequency, there's still a 12 decibel
exceedance
16 of the nighttime standards.
Q Now, you're telling us about what the
17 numbers show, and I would like to ask you about
what you perceived to your ear. You were there,
18 right?
A Yes.
19 Q And, was the sound level emitted from the
unit onto your property at a satisfactory level,
20 to your ear?
A I have difficulty answering the question,
21 only because of the ambient sound being so loud,
with the crickets that evening. That evening, I
22 thought that there was an improvement at the full
level of operation. And, it may well be
23 satisfactory. However, I'm concerned about the
fact that the crickets caused the ambient sound to
24 be so high, that it was a little hard to
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1042
1 distinguish. If the crickets were not there,
which they aren't the better part of the year,
2 there could, conceivably, be a problem,
particularly at the higher levels.
3 Q I'd like to ask you a couple of
questions, and I don't want to be impudent in
4 asking these questions, but I think it's called
into question to ask them, sir. Crickets don't
5 keep you awake, do they?
A No.
6 Q Nor do they keep your wife awake?
MR. KAISER: Objection, calls for
7 speculation.
BY MR. CARSON:
8 Q As far as you know, sir?
A As far as I know, crickets don't keep her
9 awake.
Q Nor your son, David?
10 A As far as I know, they don't keep him
awake.
11 Q Thank you. You stated that the system,
the Crown system, was operated last Thursday
12 evening at both the low level and at high level.
And, I think, in your answers, you described that
13 you're not sure if it was satisfactory at the high
level because of the crickets. What about the low
14 level?
A It was satisfactory.
15 Q I'd like to show you Exhibit No. 19, and
this is going back to November of 1994, a letter
16 that you sent to Steve Crown on that date, Exhibit
No. 19. Do you recall that as a letter that you
17 sent Mr. Crown at that time, sir?
A Yes.
18 Q And, according to this letter, you had
four real estate firms appraise your house in
19 anticipation of listing it for sale. Now, am I
correct that the real estate firm that you hired
20 for that purpose was Ann Montgomery's firm?
A Yes.
21 Q I think you said it was Kahn Realty or
Kahn Realty?
22 A Yes.
Q Ann Montgomery is your partner's wife, is
23 that right?
A Yes.
24 Q And, I think you said that Ann Montgomery
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1043
1 was of the belief that you should disclose the
issue regarding the sound from the Crown air
2 conditioner to perspective purchasers?
A It was not just Ann, it was the chief
3 operating officer of the firm.
Q Okay. And, this was the same Ann
4 Montgomery that you or your wife asked to come
over specifically for the purpose of listening to
5 the air conditioner, even before you were listing
your house for sale, right?
6 A Yes. There were other brokers as well,
but yes.
7 Q Did you ask Ann Montgomery to sign a
petition, didn't you?
8 A I believe she did sign a petition, yes.
Q Now, with respect to the air conditioning
9 unit that you marked on Exhibit No. 51, your
units, did you ever conduct a test with your units
10 running and the Crown unit not?
MR. KAISER: What's the time period, I'm
11 sorry?
Q Ever.
12 A Yes.
BY MR. CARSON:
13 Q And, did you, under those conditions,
experience the sound levels on your patio?
14 A We didn't during that test, no.
Q When was that?
15 A In the summer of 1995 when we had the
joint readings. We did a test with just the
16
Shelton units running, the one we talked about a
few minutes ago.
17 Q That's when the unit was on the roof?
A Yes.
18 Q And, where were the measurements done?
A They were taken at the lot line between
19 the
Sheltons and Crowns, which would be roughly
less than 30 feet from the units.
20 Q There was no test done, at that time, at
David's bedroom window, was there?
21 A No, there wasn't.
Q And, you're sure that at the time of
22 those tests with the Crown unit off, that both
your units were on?
23 A I believe that they were, that was my
understanding,that they were.
24 Q Bear with me one moment. I'm just trying
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1044
1 to get my exhibits together.
THE COURT: That's fine.
2 BY MR. CARSON:
Q Sir, you stated, in July of 1994, and I'm
3 referring to Exhibit No. 17, you stated --
MR. DIVER: What was the date, counsel?
4 MR. CARSON: July 6, 1994. "Solving the
problem is our only goal. We are not trying to set
5 the stage for litigation". That's a statement you
made in a letter to Mr. Crown, is it not?
6 A Yes.
BY MR. CARSON:
7 Q And, you felt a desire to protect your
family. You felt like your family was under
8 attack, right?
A Yes.
9 Q And, you felt this way in 1994?
A Yes.
10 Q Even though you knew that there was an
enclosure that was, that had been proposed, and
11 was going to be installed, right?
A I was not clear that there was going to
12 be an enclosure installed.
Q You had been informed that an enclosure
13 was to be installed?
A Yes, but there was ample reason to doubt
14 that they were going to follow through with it.
They had gone back on several things before.
15 Q You felt, I assume you had a natural
desire to protect your family, because you
16 perceived your family was under attack, right?
A Yes.
17 Q In view of this history, and the
frustration and the feelings associated with that,
18 that you described, are you capable of evaluating
the situation as it presently stands, in an
19 unbiased way?
MR. KAISER: Objection. Mr. Carson, if
20 you could clarify the term "this situation". Are
you referring to the litigation, to the noise
21 attenuation steps, what situation are we talking
about?
22 MR. CARSON: The question goes to bias,
yor Honor.
23 THE COURT: You can answer it, to the
best of your ability. Objection overruled.
24 A I can only say that I think by about any
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1045
1 standard, and a number of people have told us
this, we have been exceptionally patient and
2 disciplined in how we've reacted to this. It's
not only been our emotions, we've had all kinds of
3 factual evidence from
Trane and numerous sound
readings showing this is not an emotional problem
4 of the
Sheltons. So, my answer is yes,
unequivocably yes, I can be objective.
5 Q And, as you sit here today, you believe
you can, in an unbiased way, evaluate the
6 situation?
A Yes. I think I've just proved that by
7 acknowledging the progress that's been made.
Q And, you also acknowledged that it was
8 satisfactory, but for your question about the
loudness of crickets?
9 A You didn't give me a chance to complete
my answer. Some reservations were that we want to
10 make sure that they're okay on these couple of
reservations that I have. With those exceptions, I
11 think that we're at an answer.
Q And, your letter that you sent in July of
12 1994 says, "Solving the problem is our only goal.
We're not trying to set the stage for litigation."
13 What else do you expect from these proceedings?
MR. KAISER: Objection, argumentative.
14 THE COURT: I'll sustain.
MR. CARSON: This goes to bias also, your
15 Honor. I'll withdraw it, and try it a different
way.
16 BY MR. CARSON:
Q Do you expect the Illinois Pollution
17 Control Board to award damages to you?
MR. KAISER: Objection.
18 THE COURT: Sustained.
BY MR. CARSON:
19 Q Are you planning to file a civil suit for
damages against Mr. Crown?
20 MR. KAISER: Objection.
MR. CARSON: Your Honor, it goes to motive
21 and bias. There's nothing wrong with the question.
THE COURT: Sustained. My difficulty with
22 it is relevance.
MR. CARSON: Well, as my offer of proof,
23 your Honor, then, I would like to state that I'm
intending to ask this witness if he's pursuing
24 this matter, for the purpose of setting up a later
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1046
1 claim for damages in a civil court. And, I
suppose, for purposes of the offer of proof, we
2 may assume that his answers would be in the
affirmative. And, that he would say that he does
3 intend to sue Mr. Crown for large amounts of
money. And, the reason he's pursuing this case is
4 for that reason. I think the relevance is obvious,
your Honor. If those answers were given, would
5 they not be relevant?
THE COURT: I question this relevance to
6 identifying the violation of the Illinois
Environmental Protection Act.
7 MR. CARSON: It goes to bias of the
witness and motive to falsify. I'll pose another
8 question.
BY MR. CARSON:
9 Q Is there something else that you would
have Mr. Crown do?
10 MR. DIVER: Excuse me. With respect to
what, counsel?
11 MR. CARSON: Well, what are we here
litigating, Mr. Diver?
12 MR. DIVER: I'm not arguing with you.
I'm asking you to please explain, for the person
13 you're asking the question of, what it is you're
asking. What additional you would ask Mr. Crown to
14 do, with respect to what?
MR. CARSON: With respect to his air
15 conditioner.
BY MR. CARSON:
16 Q Mr.
Shelton, what would you have Mr.
Crown do with respect to his air conditioner at
17 the present time?
A We would like for the noise levels to be
18 reduced to an acceptable level.
Q And, in light of your perceptions last
19 Thursday, you still believe that they're not at an
acceptable level, is that your testimony?
20 A As I said, though I haven't had a chance
to give a complete answer, two possible
21 reservations, which we simply want to clarify. I
think there's been tremendous progress, and the
22 noise levels are acceptable. If you would like
for me to elaborate on what those reservations
23 are, I'd be glad to.
Q My question to you, sir, is based on your
24 perceptions on Thursday, is the sound at an
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1047
1 acceptable level. And, if you can answer with a
yes or no, please do so.
2 THE COURT: I believe we've had some
questioning in that area.
3 MR. KAISER: Asked and answered.
THE COURT: If you need additional
4 testimony in that area, let's be more specific
with the question.
5 At this time, it would be useful to
take a brief recess for our morning break. Would
6 that be acceptable to you, Mr. Carson?
MR. CARSON: Yes. I don't have much
7 more. I have just a few more.
THE COURT: Okay. Let's take a short
8 break.
(WHEREUPON, the morning break was taken.)
9 AFTER RECESS
THE COURT: We'll go back on the record,
10 at this point in time.
BY MR. CARSON:
11 Q Mr.
Shelton, I'd like to take you back to
part of your testimony on direct examination
12 concerning a meeting that you thought was going to
occur involving a representative of
Trane. Do you
13 recall that testimony, sir?
A Yes, yes.
14 Q And, forgive me, I don't remember when it
was, when you said the meeting was to occur.
15 January?
A January of 1994.
16 Q January of 1994. And, I think your
testimony was that you and your wife were waiting
17 for the people to show up for the meeting, and
nobody ever showed up?
18 A Yes.
Q Did you speak with anyone from
Trane, as
19 far as scheduling of the meeting is concerned?
A No, my wife had talked with Steven, who
20 had indicated that --
MR. DIVER: Object to the hearsay. Your
21 wife told you that somebody else said --
THE COURT: If you could limit your
22 answer to --
A No, I did not talk with anyone from
23
Trane.
BY MR. CARSON:
24 Q You did not. And, this meeting which you
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1048
1 believed had been scheduled, I take it Mr. Crown
never confirmed to you that there was a meeting
2 set up?
A It's my understanding that he did.
3 Q That he didn't confirm it to you?
A No.
4 Q It's your belief that he did?
A Yes.
5 Q Do you know why it was that the meeting
was to take place in January when, presumably, the
6 air conditioner wouldn't be operating?
A It was my understanding, it actually
7 might have been speculation on my part, that it
was simply to survey the situation, the landscape
8 and so on.
Q I'll now like to ask you about Exhibit
9 No. 22, which was a handwritten letter that was
placed in evidence, dated September 21, 1995.
10 MR. DIVER: Okay.
Q This was a letter that you sent to Mr.
11 Crown in September of 1995?
A Yes.
12 Q And, you already testified that your wife
was scheduled for surgery, and you felt that it
13 was very important that she get adequate sleep.
And, therefore, you had sent this letter in order
14 to request that the Crowns turn the air
conditioner off so she could sleep better?
15 A Yes.
Q In fact, did Mrs.
Shelton stay at the
16
Winnetka home after her surgery? She actually
stayed somewhere else, didn't she?
17 A She did, after the surgery, yes. This
had to do with the night before the surgery.
18 Q Did you, as well, stay somewhere else, or
were you, did you stay home?
19 A I stayed at home.
Q She had a good night's sleep prior to the
20 surgery?
A That's the reason for the fax.
21 Q And, are you aware of whether any
modifictaions were made to this system, or the
22 system's operations, in response to your request?
A I didn't notice any. The unit did run
23 that evening.
Q You're not aware of whether any
24 modifications were made to the operation of the
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1049
1 system?
A No, I'm not.
2 MR. CARSON: That's all the
cross-examination I have.
3 THE COURT: All right. Thank you, Mr.
Carson. At this point in time, we'll have the
4 redirect.
MR. KAISER: Thank you, Madam Hearing
5 Officer.
MR. CARSON: Can I, excuse me one second
6 for interrupting, but I would renew our request to
review Mr.
Shelton's notes, based upon Mr.
7
Shelton's own testimony that these were notes that
he made to assist him in preparing for the
8 testimony at this hearing.
THE COURT: And, are you referring to the
9 notes, Pages 1 and 2, or also the additional
pages?
10 MR. CARSON: Also the additional pages.
MR. KAISER: May I make some additional
11 inquiry in that area, so that we can understand
the full scope and purpose for which those notes
12 were made?
THE COURT: Sure.
13 BY MR. KAISER:
Q Mr.
Shelton, I have, in my hand, and I'm
14 looking at several pages of notes that I believe
it was your testimony you made over the past
15 weekend, after the noise measurements were taken
by Bob
Elfering, is that correct? Is that when
16 you made these notes?
A Yes.
17 Q And, can you describe, for the Board,
what your purpose was in making these notes, and
18 whether you intended to review the content of the
notes with your attorneys?
19 A The purpose in making the notes was to
help me gather my thoughts, to help me organize my
20 thoughts, to use those collective thoughts to
review, with my attorney, the situation.
21 MR. KAISER: I have no further questions
in that area.
22 It's my position that these, this
portion of his notes were made for the purpose of
23 reviewing matters with his attorneys, and that
they fall within the attorney/client privilege.
24 And, therefore, are
priviledged from disclosure.
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1050
1 Madam Hearing Officer, it may be appropriate that
you review this portion of his notes in an in
2 camera inspection so that you can satisfy yourself
as to the content and make a ruling.
3 THE COURT: I was considering it. Can my
ruling on this wait until after the remainder of
4 the cross-examination of the proceedings, or will
this be something that interferes with our
5 inability to go back to the witness?
MR. CARSON: Only to the extent that
6 there may be something that I would want to
inquire of this witness about, if we have a little
7 bit of time. If your Honor's ruling is that we
have the opportunity to review these notes, if I
8 have a little bit of time to review them, with the
right to recall the witness, then that timing
9 would not be a problem.
THE COURT: Okay. I would like to take
10 the opportunity to look at the notes, Mr. Kaiser.
Let me do that over lunch today. And, at this
11 point, let's proceed with the other areas of the
redirect.
12 MR. DIVER: Madam Hearing Officer,
there's one thing that we need, a copy of Exhibit
13 No. 7, if Madam Hearing Officer has that.
Thank you, Madam Hearing Officer. Excuse
14 me just one moment.
THE COURT: We'll pause for examination
15 of documents.
(Off the record)
16 REDIRECT EXAMINATION
BY MR. KAISER:
17 Q Mr.
Shelton, I'd like to review with you
several portions of your testimony that you gave
18 this morning on cross-examination with Mr. Carson.
You'll recall that Mr. Carson inquired about your
19 listing and placing of your home for sale in the
early part of 1995. Do you recall that testimony?
20 A Yes.
Q And, can you tell the Board why it was,
21 in 1995, you decided to place your home on the
market?
22 A Yes, we did. There were basically two
reasons. The first was that we had, for some
23 time, been thinking that rather than constructing
an addition, which we felt we needed in this
24 house, it might make sense to move to someplace
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1051
1 where we didn't need to construct the addition.
We were not very excited about living through a
2 second addition. We had lived through one once
before, and it was very disruptive. Also, we'd
3 been living next door to the Crown construction,
at that point, for some three years. And, for
4 those reasons, we had concluded that we preferred
to move rather than to live through another
5 addition.
The second reason had to do with the fact
6 that after the difficulties we had regarding the
air conditioner noise next door, we had lost the
7 joy of living in our home, and thought it would be
best to go someplace where there weren't so many
8 bad memories.
THE COURT: If you'll permit me to
9 interrupt briefly, let the record reflect that the
redirect examination also covers the
10 cross-examination of July 16th.
MR. KAISER: Thank you.
11 BY MR. KAISER:
Q And, moving to another area of the
12 cross-examination, as I recall your testimony, you
caused the two ton
chiller unit that had
13 previously been located on the roof of your family
room, to be relocated to a patio area. And, that
14 that occurred in the summer of 1996. Was that your
testimony?
15 A Yes, it was.
Q And, why did you relocate that two ton
16
chiller unit?
A The reason we relocated it is that we had
17 committed, the prior summer when there had been
noise readings that showed that our air
18 conditioners were slightly in excess of the IPCB
nighttime standards, we had, after those readings,
19 we had committed to take steps to make sure there
wasn't a violation. And, for that reason, we
20 concluded that we should relocate the unit.
Q Do you have an opinion as -- well, let me
21 put you back in time now to the summer of 1994
when you first began to intensively experience the
22 noise from the Crown air conditioning unit. Do
you have an opinion as to whether the noise you
23 were experiencing in your home, in your patio, in
your backyard, was the result of your air
24 conditioning units, or the Crown air conditioning
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1052
1 unit?
A The noise was, the noise problems were
2 the result of the Crown unit. You could walk a
relatively few feet away from our unit, during the
3 summer of 1994, and when I say relatively few
feet, 10, 12 feet, and at that point, you would
4 start to hearing nothing but the Crown air
conditioner. Even being that close to our unit,
5 you couldn't hear it. That was in the summer of
1994.
6 Q And, in the summer of 1995, were you able
to tell whether the problem you were experiencing
7 in your home, and on your property, was the result
of your air conditioning unit, or the Crown's air
8 conditioning unit?
A The problem was the result of the Crown
9 air conditioning unit. The problem--I didn't
complete my answer to the prior question. By the
10 summer of 1995, once the cones were off and the
enclosure was up, the noise difficulties with the
11 Crown unit were somewhat reduced. Now, they were
still a problem, though at that time you could,
12 you had to walk quite a bit further away from our
unit before the Crown noise would overwhelm those
13 units. However, in both summers, and this is the
completion to the prior question, again, we used
14 our air conditioners very infrequently,
particularly at night. And, particularly the
15 upstairs unit. When we do use one, it's typically
the downstairs unit, which is the one located on
16 the south side of the house. And, certainly, when
we do use our air conditioning system, we have our
17 windows closed. Otherwise, we wouldn't be using
the air conditioner.
18 So, the problems we had were on the vast
majority of the nights when we didn't want to use
19 any of our air conditioners. But, we had
difficulty keeping our windows open because of the
20 Crown air conditioner.
Q Did you ever go into your son, David's,
21 bedroom to experience the noise about which he
complained?
22 A Yes.
Q Did you form an opinion as to what the
23 source of the noise about which your son was
complaining, in 1994, what the source of that
24 noise was?
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1053
1 A It was the Crown air conditioner.
Q Did you make similar
investigtions in the
2 summer of 1995?
A Yes.
3 Q And, did you form an opinion as to what
was the source of the noise about which your son
4 was complaining, in 1995?
A It was the Crown air conditioning.
5 Q Were you present when Bob
Elfering took
sound measurements, both on the Crown property and
6 on your property, in August of 1996?
A Yes.
7 Q Are you aware of whether a person by the
name of Brad
Mautner was present?
8 A Yes, Brad was present.
Q Did Mr.
Mautner make any representations
9 to you concerning the mode or method of operation
of the Crown air conditioner unit, during the
10 testing period?
MR. CARSON: Objection, to the extent it
11 calls for hearsay. Yes or no to that wouldn't be
hearsay. But, if the witness is going to start
12 telling what Brad
Mautner said, then, obviously,
it would be.
13 THE COURT: Could you rephrase your
question?
14 BY MR. CARSON:
Q Do you have any basis of your own for
15 knowing -- were representations made as to whether
the Crown unit was operating at a low level, that
16 is a 30 hertz level, or a high level, a 60 hertz
level?
17 A Yes, it was my understanding that at the
low level of operation, it was operating with the
18 one compressor on, the ten ton compressor, and the
fans at a reduced speed, using 20 to 30 hertz of
19 electricity. And, that at the high level of
operation, it was operating with both the 10 and
20 15 ton compressors on, and at the
max of
electrical capacity of 60 hertz.
21 Q And, what was the basis for your
understanding?
22 A Conversations with Brad
Mautner.
Q Did you have any opportunity to
23 independently confirm the statements made to you,
by Brad
Mautner, during the
Elfering test in
24 August of 1996?
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1054
1 A No.
Q Now, the sound about which you complained
2 in the summer, throughout the summer of 1994, was
that sound caused by crickets?
3 A No, it was not.
Q The sound about which you complained,
4 throughout the summer of 1995, was that sound
caused by crickets?
5 A No, it was not.
Q Have you ever complained to anyone about
6 noise
eminating from crickets?
A No, I have not.
7 Q When Greg
Zak took noise measurements at
your son's bedroom window, on June 27th, 1996, was
8 your rooftop unit operating?
A No, it was not. Neither of our air
9 conditioners was on.
Q You mentioned, during the course of your
10 examination this morning, that you had certain
reservations concerning the modifications that
11 have recently been made to the Crown air
conditioning system. Can you describe, for the
12 Board, what those reservations are?
A Yes. The first reservation has to do with
13 being confident that the operating circumstances,
the kinds of noise levels we heard last Thursday
14 night, will, in fact, be the kinds of noise levels
we will hear on into the future, to the extent
15 that the noise levels can be altered by simply
changing the control pattern. However you're
16 operating the unit, you know, that's cause for
concern because we can't be confident that the
17 operating level of the system won't be stepped up
to a higher level, and cause noise levels to
18 greatly exceed what they were last Thursday night.
So, that's one reservation. A lot depends on
19 certain operating protocols, and how confident can
we be that that same operating protocol will be
20 adhered to in the future. The second reservation
has to do with the numeric readings themselves.
21 You know, we just want to make sure that we have a
solution here that's going to be a permanent
22 solution, not a prescription for further debate
and strife going forward. I mentioned the
23 frequency level where the crickets were a problem.
Elfering explained that that was a problem. By
24 the way, I should add that that was not at all the
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1055
1 problem in 1994 and 1995. There, we had a
Hovercraft next door, not a sound of crickets.
2 That was a very different kind of phenomenon.
But, at that time frequency, it was very,
3 substantially in excess of the nighttime standards
of some 12 decibels. Furthermore, the frequencies
4 on either side have much lower decibel levels.
That's also the case at the 63 hertz frequency.
5 Those things might be an indication that it could
be what's called a discreet tone problem. And, for
6 those reasons, I simply wanted to make sure that
Greg
Zak or someone had a chance to look at the
7 numbers and to be able to tell us whether or not
we should be concerned about that.
8 Q Mr. Carson characterized feelings you
might have experienced in 1994 and 1995 as your
9 family being under attack. Did you, in fact, in
1994, feel as if your family was under attack?
10 A I very much did. I saw my family being
greviously harmed, devastated, and there was
11 absolutely nothing I could do about it.
Q And, what was the source of the
grevious
12 harm and devastation?
A It was the noise from the Crown air
13 conditioner. We were unable to sleep. And, as a
consequence of that, we had teachers calling about
14 my son being extremely tired at school. My wife
unable to wear her corrective
lense and,
15 therefore, unable to play tennis, work at the
computer, things she normally does. A lot of
16 stress and anxiety in the family. There was
nowhere to go to get away from this monstrous
17 noise.
Q In 1995, did you feel as if your family
18 were under attack?
A Yes, I did. Again, once the enclosure
19 was put up, and the cones were removed, the level
of attack was meaningfully reduced. I,
20 nevertheless, continued to feel that we were under
attack. We continued to have problems sleeping.
21 My son continued to have to move out of his room.
I continued to have all those emotional kinds of
22 feelings that I described as having in 1994.
Q I want to show you what's previously been
23 marked, for purposes of identification, Exhibit
No. 7. It's a letter you wrote to the
Winnetka
24 Village counsel dated January 16th, 1995. Would
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1056
1 you please take a moment to look at that exhibit?
A Yes.
2 Q Do you recognize that exhibit?
A Yes, I do.
3 Q Is that a true and accurate copy of a
letter you sent to the Village on or about January
4 16th, 1995?
A It is.
5 Q I note that on Page 4 of the letter, it
indicates that a carbon copy was sent to A. Steven
6 Crown. Do you see that?
A Yes.
7 Q I see that there's a check by Mr. Crown's
name. Do you know what that check indicates?
8 A Yes, that indicates that I, in this case,
actually gave Steven a copy of it.
9 Q You hand delivered a copy to Mr. Crown?
A Yes, subsequent to a meeting we had at
10 Village Hall in January of 1995.
Q Do you know whether the letter you hand
11 delivered to Mr. Crown, in January of 1995,
contained the attachments?
12 A Yes, it did.
Q Mr.
Shelton, you'll recall that on your
13 cross-examination this morning, Mr. Carson asked
you, on several occasions, whether certain
14 modifications, in connection with the Crown air
conditioning unit, resulted in what Mr. Carson
15 characterizes as substantial reductions in sound?
Do you recall that testimony?
16 A Yes, I do.
Q Can you rank, for the Board's benefit,
17 the different modifications made over the past
almost two and a half years, to the Crown air
18 conditioning system, and tell the Board which, in
your opinion, resulted in substantial reduction of
19 sound?
A I'll do my best. In my earlier
20 cross-examination, Mr. Carson read a long list of
things that had been done during early 1995,
21 including putting on cones, removing cones,
putting on compressor blankets, removing
22 compressor blankets, landscaping, that kind of
thing. I believe I testified that those had very
23 little impact on the noise. On a scale of 1 to
10, I would rank them a 1 or 2 kind of category,
24 10 being the highest.
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1057
1 Q Well, if I may proceed a little more
slowly. You'll recall that there was testimony in
2 which you admitted that Mr. Crown caused to be
planted a row of arbor vitae, trees, hedges. How
3 would you characterize the reduction in noise from
the Crown air conditioning unit as a result of the
4 planting of the arbor vitae patch?
A There was no meaningful reduction as a
5 result of that.
Q How would you characterize the reduction
6 in noise from the air conditioning unit as a
result of the construction of a stockade fence
7 along the property line dividing your property
from the Crown property?
8 A There was already a fence there. The new
fence was a bit higher.
9 THE COURT: You can just answer the
question, to the best of your ability.
10 A Since there was already a fence there,
there was no reduction as a result of the fence.
11 BY MR. KAISER:
Q Was there any reduction as a result of
12 the placement of blanket-like insulation over the
compressor units of the Crown air conditioning
13 system?
A Not to our knowledge.
14 Q How would you characterize the reduction
in noise obtained by the placement of cones over
15 the fans of the Crown air conditioning unit?
A We noticed no difference.
16 Q What impact, or how would you describe
the impact of the construction of the acoustical
17 enclosure around the Crown air conditioning unit?
A The construction of the enclosure, it had
18 a very small impact, an improvement. However,
when the cones were removed, after the enclosure
19 was built, that led to a marked improvement. I
believe it was on the order of like 10 decibels,
20 roughly, having the level of noise -- I must say,
as I thought about it, it's a little akin to a
21 boat leaking water. You can't stop and say I've
cut the leak in half and rest on your hands
22 because the boat is still going to sink, because
there's still water coming in. So, while it was a
23 significant improvement, it was far short of
making the air conditioner livable.
24 Q And, how would you characterize the
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1058
1 reduction in noise achieved by modifying the
program for the controls of the Crown air
2 conditioning unit, those modifications put in
place in June of 1996, prior to Greg
Zak's
3 measurement in the latter part of June, 1996?
A We were not living in the house at the
4 time that that was done, so my frame of reference
is somewhat limited. It seemed to me that it
5 helped some, it helped some. Not as much as the
enclosure with the cones off, it helped. But, it
6 helped a little bit.
Q Is a moving van arriving at your home in
7 Ohio and going to be loaded so that your family
can return to
Winnetka, Illinois?
8 MR. CARSON: Objection, leading.
THE COURT: Can you
rephrae your question?
9 BY MR. KAISER:
Q What, if anything, unusual has happened
10 at your home in Ohio as we sit in hearing today?
A We, as I indicated we probably were at
11 our last hearing date, are moving back to
Winnetka. And, the moving van is scheduled to be
12 there today. My wife was not too happy, since I'm
not there to help. It's happening today.
13 Q When you were on, in your yard area
during the
Elfering measurements in August of
14 1996, did you notice any sounds generated by the
Crown air conditioning unit, which gave rise to
15 some concern or reservations as to whether or not
a solution to the noise problem had been achieved?
16 A Did I hear any, excuse me, did I hear any
sounds?
17 Q Yes. Any type of beating sound or any
other type of sounds that might have given rise to
18 certain reservations?
A The only sound that gave rise to
19 reservation was we did notice a beating sound,
particularly when we were back in the camping area
20 for the readings, which we had heard earlier in
1994, but had not heard during 1995. Those are
21 the
pulsations when different elements of the
Crown air conditioning system are going in and out
22 of phase with each other. We did notice that. In
fact, I believe I mentioned it to you, or perhaps
23 others who were at the readings that night.
Otherwise, I didn't hear any sounds that gave me
24 pause for concern. I was only looking at the
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1059
1 numbers, as I explained a moment ago, and just
wanting to make sure that things are right,
2 insofar as those two particular frequencies.
Q Mr.
Shelton, if you could, we had run
3 through and ranked some of the earlier efforts in
modifications made in an attempt to reduce the
4 noise
eminating from the Crown air conditioning
unit. How would you rank this most recent, these
5 most recent efforts to reduce the noise
eminating
from the Crown air conditioning unit?
6 A They're quite significant. I would say,
in terms of significance, to my mind, they are
7 equivalent to the enclosure with the cones off.
Very significant. Particularly on the second
8 floor. Really, there was a big reduction in noise
there. And, variable speed of the fans, the low
9 level of the operations created a very significant
reduction in the operation.
10 MR. KAISER: Thank you, Mr.
Shelton. We
have no further questions on redirect.
11 MR. CARSON: Just a couple on
recross.
THE COURT: Okay.
12 RECROSS EXAMINATION
BY MR. CARSON:
13 Q For clarification, Mr.
Shelton, you said
that June 27, 1996, your rooftop unit was not
14 operating. Did you, in fact, have a rooftop unit?
A Yes.
15 Q When was it moved?
A In July. It had been scheduled five times
16 previously over the spring, but our rainy spring
had sabotaged each of those dates.
17 Q And also, I take it you're going to be
moving back to
Winnetka?
18 A Yes.
Q Where are you moving to?
19 A We're moving on Oak Street near Skokie
School until such time as our house is freed up
20 next June, we'll be moving back to 707
Ardsley.
Q The name of the company that moved the
21 rooftop unit down to the patio, I think you may
have said it already.
22 A Dave's Heating and Cooling of Evanston.
Q Sorry, say it again, please?
23 A Dave's Heating and Cooling. It might be
air conditioning, I'm not certain, of Evanston.
24 Q And, the purpose of moving it was to
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1060
1 insure that you would meet the IPCB nighttime
standards?
2 A Yes.
Q Did they perform alterations to the unit
3 itself in order to make it quieter?
A As I mentioned earlier, they put a
4 compressor blanket on that was supposed to have
been on before, but it apparently had not been put
5 on.
Q Have you had any complaints from any of
6 the neighbors concerning --
A No, it's far from the lot lines.
7 MR. CARSON: No further
recross.
MR. KAISER: If I may, one question on
8 re-redirect.
MR. CARSON: If it's on something that I
9 covered on cross, I wouldn't object.
MR. KAISER: It is.
10 THE COURT: Go ahead.
REDIRECT EXAMINATION
11 BY MR. KAISER:
Q Have you ever had any complaints from any
12 of your neighbors at any time concerning your air
conditioning units?
13 A No, we have not.
THE COURT: All right. Any
recross?
14 MR. CARSON: No.
THE COURT: All right. Thank you very
15 much, Mr.
Shelton. Let's go off the record for
just a moment to discuss what our scheduling will
16 be next.
(WHEREUPON, an off the record discussion
17 was held.)
THE COURT: We have been discussing some
18 details with respect to the closing of
Complainant's case in chief, and counsel --
19 MR. DIVER: Yes. The Complainant is
prepared to rest conditionally. Those two
20 conditions being one stipulation by counsel for
Respondent that we may have the opportunity to
21 review our records concerning exhibits. And, in
the event that there was exhibits that ought to
22 have been moved for introduction or whatever, that
those motions may be made at a later time. And,
23 secondly, that we will reserve until after the
lunch hour, the ruling upon the offer of the
24 Village of
Winnetka ordinances.
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1061
1 THE COURT: All right. Thank you. Also,
for the record, I will be reviewing the
2
discoverability of notes taken by Mr.
Shelton.
And, should that necessitate his continued
3 testimony, I will revisit that as a separate
segment a little later, if he would be available.
4 All right. Let's proceed with the
Respondent's case in chief. And, would the
5 Respondent like to make an opening statement?
MR. ELLEDGE: I waive opening statement.
6 THE COURT: All right.
MR. ELLEDGE: Madam Hearing Officer, we'd
7 like to call our first witness, Mr.
Mautner.
B R A D L E Y E D W A R D M A U T N E R,
8 after having been first duly sworn on oath,
deposes and testifies as follows:
9 DIRECT EXAMINATION
BY MR. ELLEDGE:
10 Q Would you state your full name, please?
A Bradley Edward
Mautner.
11 Q And, where do you reside?
A
Northbrook, Illinois.
12 Q By whom are you employed?
A Mid/
Res, Inc., now named
MidWesCo
13 Services, Inc.
Q When did you first come to be employed by
14 that company?
A 1978.
15 Q Prior to that time, would you tell us
what your education, what degrees you have?
16 A I have a Bachelor of Science in
Mechanical Engineering, and a Masters in Business
17 Administration.
Q Okay. What was your first position with
18 Mid/
Res?
A I started as a Project Manager in the
19 Construction Group.
Q And, what does that involve?
20 A Reviewing plans, ordering materials and
equipment, performing some engineering
21 calculations about projects that we were to
implement, and visiting the project to see that we
22 were maintaining the progress of that job.
Q And, how long were you Project Manager?
23 A Four, five years.
Q And, what position did you hold after
24 the -- what was your next promotion?
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1062
1 A Next promotion was to be the Vice
President in charge of Construction and
2 Engineering.
Q And, what did that job entail?
3 A It entailed a supervising of our Project
Managers and our Field Superintendents, as well as
4 an occasional project management responsibility.
Q And, how long did you hold that position,
5 approximately?
A Another five years.
6 Q And, then, what position did you take?
A I had some period of time that I was in
7 charge of our sales organization, and then I
became President of Mid/Res.
8 Q And, for what period of time were you
President?
9 A I was President up until February of this
year.
10 Q And then, what did you become?
A Chief Executive Officer.
11 Q And, that's your current position?
A Yes.
12 Q Okay. Now, are you familiar with a HVAC
system at the Crown's residence on
Ardsley in
13
Winnetka?
A Yes.
14 Q What were the nature of your
responsibilities with regard to that system?
15 A I discussed with Steve --
MR. DIVER: Objection.
16 A I discussed with Mr. Crown --
THE COURT: Just answer the question, Mr.
17
Mautner.
A I discussed with Mr. Crown -- my
18 responsibilities were to discuss with Mr. Crown
the system concepts and the business relationship
19 between our firm and him.
Q And, are you familiar with the
20 installation?
A Yes, generally.
21 Q All right. Could you describe what we
have been referring to as the
chiller unit in this
22 case? Do you know what we mean by "
chiller unit"?
A Yes.
23 Q Could you describe the function of that
unit; what is its function, and how does it
24 operate, if you would?
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1063
1 A Well, the
chiller unit's function is to
reject heat from inside the structure to the
2 outdoor environment.
Q How does it do that?
3 A It does that by using a working fluid
refrigerant, in this case. It's circulated
4 through the system, and the key components that
make that happen are compressors, heat exchanger
5 device, and condenser fans that move outdoor air
across heat exchanger devices.
6 Q What's the function of the condenser --
compressor?
7 A Compressor?
Q Yes.
8 A The function of the compressor is to take
a gas from a lower pressure and compress it to a
9 higher pressure, and discharge it into the
condenser, heat exchanger.
10 Q What's the function -- what are the
functions of the fans?
11 A The fans are designed to move air across
the heat exchanger surface to reject the heat
12 that's accumulated in the condenser.
Q How many compressors are there?
13 A There are two.
Q And, how many fans?
14 A There are three.
Q Could you describe how the
chiller unit
15 operates at this time?
A Currently, we have two modes of
16 operation. We have a daytime mode of operation,
and a nighttime mode of operation. During the
17 daytime mode of operation, both compressors are
able to run, and run when there's a need for
18 cooling inside the structure. When the
compressor, when the first compressor energizes,
19 all three condenser fans operate simultaneously,
and are controlled by variable frequency drives.
20 Q Would you describe what a variable
frequency drive is?
21 A
A variable frequency drive is an
electronic device that's used to allow a motor to
22 operate at variable speed, and not be damaged
during that operation.
23 Q And, how do these -- what is the size of
this, of the variable frequency drives?
24 A Each, there are three variable frequency
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1064
1 drives, each one horsepower, which matches the
motor horsepower of each of the condenser fans.
2 Q And, what controls the varying frequency
in these drives?
3 A In this case, we've installed a pressure
transducer inside the refrigerant circuit to
4 measure the pressure of the refrigerant circuit.
The higher the pressure on the circuit, the faster
5 the drives will tell the fans to move.
Q All right. I believe you're describing
6 the daytime mode.
A Yes.
7 Q Is there a second mode?
A Yes, there is a nighttime mode.
8 Q Could you tell us what that mode is?
A In the nighttime mode of operation, we've
9 programmed the system to allow only one compressor
to operate, which is the smaller of the two
10 compressors. The fans run in the same sequence,
same algorithm as during the daytime mode. That
11 is, we sense pressure and use the minimum fan
speed necessary to reject the heat.
12 Q All right. And, there is a relationship
between the speed of the fans and the sounds
13 produced?
A Yes.
14 Q Could you tell us what that is?
A The lower RPM that the fans operate at,
15 the less sound is generated.
Q Now, is this the original configuration
16 of the unit, as installed in 1992, 1993?
A No.
17 Q How was it originally configured?
A The original configuration was, as it
18 came from the manufacturer, were the compressors
would always energize independently as a function
19 of demand for cooling in the past. But, all three
condenser fans would operate at a fixed RPM when
20 they were needed.
Q So, it was just one speed for the fans?
21 A Yes.
Q And, that was all?
22 A Yes. And, they were sequenced on in
operation as a function of the number of
23 compressors that were operating.
Q How many fans would -- how many fans, if
24 any, would be operating when the first compressor
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1065
1 operates?
A When the first compressor operates, one
2 fan initially starts, and the second fan would be
brought on as the pressure requires.
3 Q And would, then, on some occasions, the
second compressor start to operating?
4 A Yes, and a second fan would be brought
on, and a third fan would be brought on, as
5 pressure required.
Q And, in this configuration, then, the
6 fans have just two speeds, all on or all off, is
that correct?
7 A Each fan has only two modes of operation,
either off or on full RPM.
8 Q Now, what speeds do the fans
oeprate
since the VFD has been attached?
9 A The speeds vary, as a function of the
outdoor air temperature and the need for cooling.
10 Fan speeds are as low as 10% of the RPM
originally, and we have not observed yet full RPM
11 operation.
Q All right. So, the fan speeds can
12 gradually increase and gradually decrease, do I
understand correctly?
13 A Yes, that's why they're variable
frequency drives.
14 Q Okay. Now, when did you effect the
change in -- when did you effect the changes which
15 led to there being two modes of operation?
A I believe it was done in the end or
16 towards the end of May, 1996.
Q And, when were the additional
17 modifications made?
A The variable frequency drive
18 modifications?
Q Yes.
19 A They were done during the week of August
5th, I believe.
20 Q And, what kind of work was involved in
terms of connecting that up?
21 A We had to power the variable frequency
drives from independent power sources. We had to
22 install the transducer and take the transducer
signal and input it into the computer that already
23 exists on this project. We then wired output from
the computer to the variable frequency drives to
24 tell the drives how to operate. And then, we had
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1066
1 to permanently wire the variable frequency drives
to the motors.
2 Q All right. Now, when did you determine
that this should be -- when did you order these
3 modifications to take place? At what point did
you direct that these changes be made?
4 A Well, we directed, the changes were made
in response to the recommendation by George
5
Kamperman. You gave me direction to install
these, to implement these installations.
6 Q And, when did you, when was that?
A In mid-July.
7 Q Now, at -- when did you first start
considering the use of the
VFD's in this
8 application?
A It was after the recommendation of George
9
Kamperman in May of 1996.
Q All right. And, at that time, did you
10 know, of your own knowledge, that
VFD's for this
application were available?
11 A We have not applied
VFD's in this
application. I have not.
12 Q How long have
VFD's been in, available on
the market, in some size?
13 A I don't know how long, but
VFD's have
generally been around the last 10 to 15 years.
14 Q All right. As of the requested
recommendation of George
Kamperman, what was the
15 smallest
VFD's that you were aware of being
available on the market?
16 A I knew there was some
VFD's available in
the 10 horsepower range, perhaps as low as 7 1/2
17 horsepower. I have seen, in the
Trane Journals in
the last few years, smaller
VFD's available.
18 Q So, how did you go about determining
whether they would be available for this
19 application?
A I asked Harry
Akers to call some variable
20 frequency drive manufacturers representatives, and
we discovered that
Trane Company, who we bought
21 the original equipment from, was a representative
for one of those manufacturers. And, he contacted
22 them.
Q So, the equipment was obtained also
23 through
Trane?
A Yes.
24 Q All right. And, you referred to the
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1067
1 wiring as being permanently wired, is that
correct?
2 A Yes.
Q So, this is a permanent installation, is
3 that correct?
A Yes.
4 Q Now, could you describe the enclosure,
the acoustic enclosure as it was originally
5 constructed?
A The original acoustical enclosure is made
6 of the panel sections that we purchased from a
company called IAC. They're four inches thick,
7 and they're sheet metal outside, with a perforated
sheet metal inside, and a layer of insulating
8 material in between the two pieces of metal. We
originally constructed an enclosure that was
9 immediately adjacent to the unit on three sides,
and had an air inlet louver on the fourth side.
10 The enclosure then extended approximately two feet
above the height of the unit, which would be
11 approximately 7 feet tall, total.
Q How much clearance was there around,
12 vertical clearance was there between the unit and
the enclosure?
13 A Horizontal?
Q Horizontal.
14 A On three sides, there's practically no
clearance, a few inches. And, on the air inlet
15 side, there's approximately two feet, and then a
one foot deep louver.
16 Q At the time it was enclosed, was this
consistent with
Trane specifications for this
17 unit?
A No.
18 Q In what regard?
A All of the sides of the enclosure are
19 closer to the unit than they would recommend in
their manual.
20 Q And, why did you make them closer?
A Well, we knew that the closer the panels
21 would be to the unit, the better sound attenuating
characteristics that it would have. So, we felt
22 that on the air inlet side, which is the most
critical dimension, we could use a louver. And,
23 on the other three sides, the primary reason was
for service access. So, we made the other three
24 sides with panel sections that could be removed by
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1068
1 servicemen to gain access, for service purposes.
MR. ELLEDGE: Your Honor, I believe that
2 the next exhibit is Respondent's Exhibit No. 8.?
THE COURT: Correct.
3 BY MR. ELLEDGE:
Q I want to show you what has been marked
4 as Respondent's Exhibit No. 8. Could you tell us
what that is, please?
5 A This was a drawing that I had Harry
Akers
make to show the original enclosure and the
6 additional enclosure pieces that had been erected.
Q When were additional enclosure pieces
7 erected?
A During the week of August 3rd.
8 Q Could you describe what those, what the
additional materials are made of? Could you
9 describe the additional pieces?
A The additional enclosure pieces are made
10 of plywood. And, the inside surface of the plywood
has attached to it a fiberglass insulation.
11 Q This is done to simulate the acoustic
effects of the existing panels?
12 A Approximately, yes.
Q Now, what is the height of the additional
13 enclosure?
A The additional enclosure pieces are four
14 feet above the original enclosure elevation.
Q And, I see, in the middle of the lower
15 drawing, a vertical piece. Could you tell us what
that function is? It has diagonal stripes on it.
16 A Yes, it's referred to as air blocks.
Q Yes.
17 A There's actually two air block pieces.
The vertical piece is also plywood, and is there
18 to separate the vertical discharge warm air flow
from being re-circulated back into the intake. The
19 horizontal air block piece is also there for that
same purpose.
20 Q Thank you.
MR. ELLEDGE: I move the introduction of
21 Respondent's Exhibit No. 8.
MR. DIVER: No objection.
22 Q Now --
MR. DIVER: May we have a ruling?
23 THE COURT: Yes. Respondent's Exhibit
No. 8 is entered into evidence.
24 MR. DIVER: Thank you.
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1069
1 MR. ELLEDGE: Thank you.
BY MR. ELLEDGE:
2 Q Have you had occasion recently to be on
the
Shelton property?
3 A Yes.
Q And, when was that?
4 A The night of Thursday, August 15th.
Q And, what was the purpose of your being
5 there?
A I was there to observe and assist in the
6 taking of additional sound readings.
Q About what time did you appear, did you
7 get there?
A Approximately 9:00 o'clock, 9:10.
8 Q Now, I'd like to show you what's been
marked as Exhibit No. 51. Can you take a look at
9 it, please? Now, to the left of that drawing, as
you're looking at it, there's, there are some
10 drawings made in pencil. Do you see those?
A Yes.
11 Q Is that consistent with your observation
of the configuration of that structure, the
12 penciled structure? First of all, do you know
what that structure is?
13 A Yes.
Q What is it, please?
14 A The
Shelton home. Yes, it is, it is
consistent.
15 Q All right. Now, where did you, where did
people meet or where -- who all was present when
16 you, when these measurements were taken, do you
recall?
17 A Representatives from Al Shiner's office,
Bob, and I don't recall his last name, you,
Reece
18
Elledge, Mr. Kaiser was there, Mr.
Shelton was
there, and George
Kamperman, and myself.
19 Q Correct. Now, when the measurements
started, in what configuration or what mode of
20 operation was the Crown
chiller unit?
A In a nighttime mode.
21 Q And, were measurements taken at various
places while the
chiller was in that mode of
22 operation?
A Yes.
23 Q Did the mode of operation, was the mode
of operation of the
chiller unit changed, then?
24 A Yes, on request.
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
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1 Q Okay. And, what was that change, what was
the next state of that?
2 A I was asked to have the unit turned off
to get ambient sound readings.
3 Q And, how did you do that?
A I used a portable cellular telephone to
4 call one of our engineers on duty, and asked them
to turn off the unit.
5 Q Okay. And, after measurements had been
taken in that mode, what were you next requested
6 to do, with regard to the mode of operation?
A I was asked to have the unit operate in a
7 daytime mode, with the fans at their full RPM.
Q And, how did you, did you cause that
8 change to be made?
A Yes.
9 Q And, how was that change affected?
A I made a phone call again, on the
10 cellular phone, called the engineer on duty, and
asked him to make a manual program change, and
11 operate the unit with both compressors operating
and the fans at 100% RPM.
12 Q Were you able to observe that that
occurred?
13 A I believe it occurred, yes.
Q Okay. During the course of that evening,
14 did you have occasion to go around to the patio on
the
Shelton property?
15 A Yes.
Q What did you observe there?
16 A When we first walked on the patio, there
was a condenser unit on the patio that was
17 operating.
Q And, can you describe its mode of
18 operation?
A It was operating like a normal condenser
19 unit; that is, the condenser fan runs at a single
speed and the compressor was operating.
20 Q Can we describe the sound
eminating from
that?
21 A Standing on the patio with that unit
operating, normal conversation would not be easy
22 to have.
Q Could you compare it to the sound that
23 you could hear from the
Shelton property of the
Crrown chiller unit operating, could you compare
24 the sounds?
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1071
1 A Well, when that unit was operating, we
could not hear the Crown unit operating. When that
2 unit went off, you could not noticeably hear the
unit operating from the Crown property.
3 MR. DIVER: Madam Hearing Officer, if the
witness could be asked to talk about "I" rather
4 than "we", or others --
A I.
5 MR. DIVER: That would help.
THE COURT: Thank you.
6 A This is me.
BY MR. ELLEDGE:
7 Q Could you, I'd like to direct your
attention to, again, Exhibit No. 51. Take this
8 blue felt point tip -- let me get a black felt
point tip and mark what you recall to be the
9 location of that air conditioning unit right on
the exhibit.
10 MR. DIVER: We're talking about the unit
at the patio?
11 MR. ELLEDGE: The patio unit, yes.
BY MR. ELLEDGE:
12 Q Is it in the vicinity of the red circle?
A
Approximatly the same as the red circle.
13 Q Put an "X" there.
MR. ELLEDGE: Let the record show the
14 witness has drawn a black circle with an "X" in
it.
15 BY MR. ELLEDGE:
Q Had you ever had occasion to observe the
16
Shelton property at an earlier date -- let me
withdraw that question and rephrase it.
17 Were you present in June of 1995 when
other sound measurements were made of the air
18 conditioning units in question?
A Yes.
19 Q Okay. And, where were you at that time?
A Well, we were in the Crown driveway.
20 Q In the general area where that has been
marked on this with a, looks like a yellow
Dayglo
21 pen?
A Yes.
22 Q In that general area?
A Yes.
23 Q Did you observe any air conditioners on
the
Shelton property on that occasion?
24 A Yes, there were two.
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1072
1 Q And, where were those two located?
A One was located where there's a red
2 marking on this drawing that says three ton.
Q Right.
3 A And, the other was located where this red
marking is that says two ton.
4 Q And, where would that be? Is that ground
level, or is it above ground, or what?
5 A The two ton unit appeared on a low, one
story roof that could be seen from the driveway on
6 the Crown property.
Q Do you recall whether one or both of
7 those units were operating at that time?
A I only recall that the three ton was
8 operating at that time. I don't recall that the
two ton was operating, if it is a two ton.
9 Q Okay. When you were at the
Shelton
property last Thursday, did you notice any
10 indications that the unit had been moved, the
patio unit?
11 A Well, the unit that was on top of a one
story roof was not present. And, it was a unit
12 that may or may not have been on grade level at
the patio before.
13 Q Putting aside the question of the patio
unit, how would you characterize the sound, that
14 night being emitted by the Crown
chiller unit?
MR. DIVER: Excuse me. What night are we
15 talking about, Mr.
Elledge?
MR. ELLEDGE: We're talking about the
16 night of Thursday, August 15th.
A Characterize it from which location?
17 BY MR. ELLEDGE:
Q From the
Shelton property.
18 A The sound levels were quite low. I
wouldn't say that they were noticeable, in any
19 material way, compared to any other residential
applications.
20 Q Do you live in a residential area?
A Yes.
21 Q In or near your backyard, are there air
conditioning units?
22 A Yes.
Q Would you compare the Crown unit to those
23 units?
MR. DIVER: Objection, your Honor, to any
24 attempt to establish that somehow this witness has
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1073
1 a hearing expertise with respect to the definition
of sounds coming from various air conditioners. I
2 have no objection to his testifying with respect
to his, to the
chiller. But, with respect to how
3 his sounds with respect to his neighbors, I have
an objection.
4 MR. ELLEDGE: Your Honor, we all have
ears. We're all able to hear. That's what we're
5 here about. And, he's perfectly competent to
testify what he heard, in his own observation, as
6 to the relative loudness of various sounds. I
don't see any reason why he should not be
7 permitted to testify with respect to his own
experience.
8 MR. DIVER: Show a continuing objection
to relevance with respect to this whole line of
9 questioning.
THE COURT: I have a relevancy question.
10 Unless the question is made more specific, it
doesn't seem to be relevant. Objection sustained.
11 MR. ELLEDGE: We're trying to relate --
BY MR. ELLEDGE:
12 Q How many HVAC systems have you had
occasion to design or sell or work on, in your
13 capacity as an employee, first as a project
designer, and later as a Vice President, and
14 currently a CEO, HVAC systems with, say,
compressors of two tons or more? Would it be a
15 matter of hundreds?
A I would say in the last 18 years, more
16 than 500.
Q And, you've heard those, various of those
17 in operation at various times, is that correct?
A I've heard in operation more than 100.
18 Q Okay. And, of those that you have
personally heard, over 100, on a scale of just
19 those experiences, where would you place the sound
currently
eminating from the Crown
chiller unit?
20 MR. DIVER: Objection, your Honor. With
respect to relevance, with respect to lack of
21 foundation, there's no comparison. We don't know
where these tests were, where the person was,
22 where Mr.
Mautner was with respect to those units,
as compared to where he was with respect to the
23
Shelton unit. And, it continues to be an
irrelevant area of questioning.
24 MR. ELLEDGE: Your Honor, we're asking
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1074
1 him about what he observed last Thursday night,
and asking him to compare it, in his experience,
2 his vast experience in these things, as to the
relative sound, sound reduction efficiencies of
3 the unit as it is currently operating. I think
it's perfectly relevant, and it's perfectly
4 germane, and it has to do with his observation,
common observation.
5 THE COURT: The question is a general
question, and I'll permit the witness to answer
6 the question. Objection overruled.
MR. ELLEDGE: Thank you.
7 A Well, as a general answer, because I have
heard a lot of different variety of systems, I
8 found in the current operating mode, with the
current enclosure, this is extraordinarily quiet.
9 BY MR. ELLEDGE:
Q Extraordinarily?
10 A Quiet, as compared to other systems that
I've heard.
11 MR. ELLEDGE: Can I have a minute,
please?
12 THE COURT: Yes.
(Off the record)
13 BY MR. ELLEDGE:
Q Let me just make sure I'm clear on one
14 point; that is, in terms of the controls of this
machine, of this HVAC system, you say it's
15 computer driven?
A Yes.
16 Q Could you describe what that means, in
terms of the day-to-day operation of the system?
17 A Well, we've installed a computer that has
software, created by us, that puts in specific
18 operating algorithms for the system. And, once
those algorithms are in place, the system runs
19 automatically.
Q And, what does it take to change one of
20 those algorithms?
A We have to re-write the program. We have
21 to call up the system via modem, change the
program code, the lines in the program. And,
22 that's it, basically.
Q But, as long as the current program is in
23 place, the current algorithms, it will continue to
operate predictably in the same way, is that
24 correct?
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1075
1 A Yes.
Q Does the resident have an opportunity to
2 change that algorithm from his home?
A No, he cannot change the control
3 algorithm.
Q That's in the hands of your --
4 A Yes, that's our firm.
Q Your firm?
5 MR. ELLEDGE: I have no further
questions.
6 MR. DIVER: Madam Hearing Officer, we
would ask that we continue the examination of this
7 witness, during cross, following lunch, if that's
possible.
8 THE COURT: All right. Off the record to
discuss scheduling.
9 (WHEREUPON, a short recess was taken.)
AFTER RECESS
10 THE COURT: We'll proceed with the
cross-examination of Mr.
Mautner at this time.
11 MR. DIVER: Thank you, Madam Hearing
Officer.
12 CROSS EXAMINATION
BY MR. DIVER:
13 Q Mr.
Mautner, you had described, in your
testimony a few minutes ago, the enclosure, the
14 acoustical enclosure that was placed around the
chiller unit sometime between July of 1994 and
15 June of 1995. Is that correct?
A Yes.
16 Q Tell us again what the
Trane design would
have called for, in terms of the relative
17 distances of the walls of that enclosure from the
unit itself, and why it was that you did not
18 pursue the
Trane specs?
A If I remember correctly, on two sides of
19 the unit, the
Trane literature asked for
approximately 3 1/2 feet of clearance. On the
20 side opposite the air intake, I believe it asked
for four feet of clearance. And, I think, on the
21 inlet side, it took 8 feet of clearance.
Q Have you recently reviewed the
Trane
22 specifications that were then applicable to see
whether or not your recollection was accurate?
23 A I flipped through a catalog in the last
month, yes.
24 Q I'm going to show you a document of
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1076
1 February 8th, 1994, right after I show it to
counsel.
2 MR. CARSON: This is going to be
exhibit --
3 MR. DIVER: At this point, I'm just going
to ask him to look at it and see if it refreshes
4 his recollection as to what
Trane's requirements
were?
5 MR. ELLEDGE: The date?
MR. DIVER: The date of the document is
6 February 8th, 1994.
MR. ELLEDGE: Thank you.
7 BY MR. DIVER:
Q Have you had a chance to look at that,
8 Mr.
Mautner?
A Yes.
9 Q Have you seen that document before?
A No.
10 Q Does that refresh your recollection as to
what
Trane's requirements were, in February of
11 1994, concerning distances of walls from the
chiller unit?
12 A No.
Q Could you reference us to the document
13 that you used to determine what the appropriate
distances ought to be?
14 A I believe it's the installation and
operation and maintenance manual.
15 Q I show you now what's been previously
marked as Exhibit No. 3. I'll ask you if that's
16 the document that you had reference to?
A Yes.
17 Q Could you find in there the information
that you've just testified to concerning the
18 relative placement of walls around the air
conditioning unit?
19 A Yes, there's one. You want me to circle
the areas where they're marked?
20 Q Well, why don't you just indicate for me,
I don't know if Mr.
Elledge wants to be over here.
21 A This is what we're talking about for this
unit. The indications on the diagram here show
22 minimum clearance requirements on the two sides
that I referred to as three.
23 THE COURT: Mr.
Mautner, what page are
you on?
24 A I'm on Page 7 of the document.
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1077
1 THE COURT: Thank you.
A Top view drawing or top most drawing also
2 on the document shows minimum clearances of 3'6"
to the two sides that I referred to. And, any
3 minimum clearance on the third side that I
referred to as four feet.
4 Q Right.
A This six foot minimum clearance that you
5 referred to in the document that Mr.
Doshi
prepared is contradicted by Page 12, which refers
6 to Table 1 on Page 13. So, what I saw on Page 13,
for this size unit, was a 8 foot ceiling
7 installation, air flow intake clearance.
Q Okay. Now, at the time that -- strike
8 that -- did Mid/
Res design the acoustical
enclosure?
9 A We picked the dimensions, yes.
Q So, you determined, Mid/
Res determined
10 how close or far it would be from the relative
faces of the
chiller unit?
11 A Yes.
Q Who, in particular, did that?
12 A I did.
Q And, at the time you did it, did you do
13 it knowing what the
Trane requirements were?
A Yes.
14 Q You determined, then, that at the time
that you chose those particular clearances, that
15 the air flow to the system would be sufficient
with the distances reduced, given your design?
16 A We believed that it would. I did,
particularly.
17 Q Was there anything about the operation of
the equipment; that is, the
chiller unit, after
18 the acoustical enclosure was created with those
smaller dimensions, that indicated that you were
19 correct; that is, that air flow was not unduly
impeded?
20 A I'm not aware of any indications that we
found
impedence of the air flow that caused a
21 mechanical failure of the unit.
Q Did Mid/
Res design the height of the
22 acoustical enclosure that was installed, that
you've just been talking about?
23 A Yes, I picked the height.
Q What was the height that you picked?
24 A Seven feet.
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1078
1 Q That seven feet included how much panel
and how much something else, was it all panel?
2 A It's all panel.
Q Okay. Just to help us out, I'm going to
3 ask you to look at Exhibit No. 106 that was
admitted, being a job order for this sound
4 insulation system from Jack
Doshi. Would you
indicate to us where, on that document, a seven
5 foot dimension is found?
Q I believe that document actually shows 72
6 inches, does it not?
A 72 inches is correct.
7 Q Which would be six feet, correct?
A Six feet, that's correct.
8 Q That was the design that you chose?
A Give me just a minute.
9 Q Okay.
A The overall height was eight feet.
10 Q The height of the acoustical panel itself
was eight feet?
11 A Overall height of the acoustical
enclosure is eight feet.
12 Q All right. The acoustical enclosure is
made up of acoustical panels, correct?
13 A Yes.
Q And, were the panels that were installed
14 themselves eight feet in height?
A I believe so.
15 Q Okay. Is that shown somewhere in this
document?
16 A On Line 1 on Page 3.
Q Which says, "Overall height of enclosure
17 covers should be eight feet"?
A Correct.
18 Q Tell me what the enclosure covers were to
be?
19 A I believe what he's indicating here is
the overall height of the enclosure is eight feet.
20 The access panel height, that you referred to at
six feet, are the sections that are shown on the
21 final page, which can be lifted out for service
access. So, there's six foot sections, as
22 observed by Mr. Kaiser, and two foot, a silent two
foot section above that.
23 Q Does this diagram not indicate what the
dimensions of these panels should be on all of the
24 sides?
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1079
1 A This diagram indicates only the plan
view, not the elevation.
2 Q Okay. Does the document, indicating the
panel sizes that are to be ordered, indicate the
3 height?
A Yes, these panel sizes refer to removable
4 portions of the panel.
THE COURT: And, you're referring, within
5 the same exhibit, to page --
A To Page 2 for the panel height, and Page
6 4 for the plan view.
MR. DIVER: These are
un-numbered pages,
7 Madam Hearing Officer.
BY MR. DIVER:
8 Q Okay. So, what you're saying is that
some portion of the unit was eight feet in height,
9 and some portion was six feet, is that correct?
A No. The whole unit is eight feet. There
10 are six foot sections that are made to be
removable so that service can be accessed into the
11 unit.
Q All right. Is any portion of the eight
12 feet the height of the concrete pad upon which the
enclosure sits -- does the enclosure sit on a
13 concrete pad?
A Yes.
14 Q Does any amount of the eight feet include
the height of the concrete pad itself?
15 A No.
Q Why did you choose, was it seven feet or
16 eight feet?
A Eight feet.
17 Q Why did you choose eight feet?
A When you look at the
Trane document that
18 we received, after Mr.
Shelton discovered it, it
gives you some indication of elevations above the
19 top of the unit that the
Trane Company
recommended.
20 MR. DIVER: Excuse me, Madam Hearing
Officer, one moment.
21 BY MR. DIVER:
Q I'm showing you now what was marked, but
22 not admitted, as Plaintiff's Exhibit No. 99, being
the engineering bulletin. Asking you if that's
23 the document to which you have reference? And, if
it is, can you show me the sections of it that you
24 relied upon in providing for the design of this
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1080
1 enclosure?
A I don't know if this is the same date as
2 the bulletin, but the paragraph on Page 6 looks
similar.
3 Q Paragraph on Page 6 under Roman Numeral
III, "Burial or Barrier Wall Enclosures". And,
4 what particular language did you look to in that,
in determining the height?
5 A Specifically, the line that says, "Also,
the barrier wall height should be at least two
6 feet minimum above the top of the unit, but not
more than one and a half times the height of the
7 split condensing unit when the barrier walls form
an enclosure."
8 Q Okay. I'm asking you to just cast your
eyes on the adjoining page, Page 5, and ask you
9 if, in your design of the height of this system,
you had reference at all to the information
10 contained in Figure 7, which refers to use of a
barrier wall in providing upper story sound
11 attenuation?
A Yes.
12 Q And, in your design of the system, is it
your opinion that an eight foot high unit would
13 have provided the sound attenuation for the upper
stories of the
Shelton residence?
14 A When located immediately adjacent to the
unit, yes.
15 Q And, that's because the face of the unit
itself, looking up over the top of the acoustical
16 enclosure, would go over the rooftop of the
Shelton house, in essence, as indicated in this
17 particular drawing?
A Yes. We did not make the calculation, I
18 did not.
Q You did not make that?
19 A I did not make the calculation.
Q But, that was your intention, to
20 accomplish that predicted result, as shown in this
particular figure?
21 A Yes, yes, while staying within the
guidelines.
22 MR. DIVER: Madam Hearing Officer,
subject to reproduction having to be needed, I
23 would move the introduction of Pages 5 and 6,
particularly Figure 7 and the description of
24 barrier walls and barrier wall enclosures, as
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1081
1 being relied upon by this witness in the design of
the acoustical enclosure, would move the
2 introduction of those two pages of this exhibit.
THE COURT: Is that Exhibit No. 99?
3 MR. DIVER: Yes.
THE COURT: Exhibit No. 99 was discussed
4 on July 12th. It was not received, and it was
stated, at that time, that it was subject to a
5 confidentiality agreement with the company.
MR. DIVER: Right. That's correct.
6 This witness has now testified that absent that
confidentiality, he relied on this document in the
7 design of that system. And, I believe that waives
the confidentiality because there's another source
8 of this information. The witness who received,
with respect to this particular document, Mr.
9
Seda, was also asked whether or not segments of
this document, other pages of this document, were
10 true and correct copies -- were true and correctly
copied in the
Trane documents that are seen in
11 other of the exhibits that Madam Hearing Officer
has allowed. With respect to this particular
12 document, however, those two pages, we would move
the introduction of now.
13 MR. ELLEDGE: Madam Hearing Officer, I'm
not here to defend any confidentiality on behalf
14 of
Trane, or any arrangement counsel has with
Trane. So, I have no concern as far as that is
15 concerned. I just wonder if, at this point, it
wouldn't make more sense to introduce the entire
16 document.
THE COURT: Let's go off the record to
17 discuss the, whether the
paties wish to agree to
introduce the entire document into evidence, at
18 this time.
(WHEREUPON, an off-the-record discussion
19 took place.)
THE COURT: We were refreshing our memory
20 as to when this document came up earlier, and
concerns about its introduction into evidence at
21 that time. So, we will rephrase the introduction
of the material at this time.
22 MR. DIVER: At this point, I would move
the introduction of Pages 5 and 6 of what have
23 been previously marked as Plaintiff's Exhibit No.
99, certain other pages of which have already come
24 into evidence, Madam Hearing Officer.
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1082
1 THE COURT: I understand there's no
objection.
2 MR. ELLEDGE: No objection.
THE COURT: All right. Then, those pages
3 of Exhibit No. 99 will be entered into evidence,
and I will obtain a copy of those pages
4 separately, and they will be so identified.
MR. DIVER: Madam Hearing Officer, I
5 would propose that they be shown as Exhibit,
what's our next exhibit number, 113, I think it
6 is.
THE COURT: I show 112.
7 MR. CARSON: 99 A?
MR. DIVER: We can call it 99 A and B for
8 5 and 6.
THE COURT: 99 A was not admitted, and 99
9 B?
MR. DIVER: 99 A is Page 5.
10 MR. ELLEDGE: You have to go above A and
B. I don't know what letter is the first one.
11 THE COURT: We already had discussion of
it as Exhibit 99.
12 MR. DIVER: Right, right. What if we
call it Exhibit No. 99, Pages 5 and 6. Is that
13 acceptable?
MR. ELLEDGE: I have no objection.
14 MR. DIVER: We'll call it that.
THE COURT: Exhibit No. 99, Pages 5 and 6,
15 are admitted into evidence.
BY MR. DIVER:
16 Q Mr.
Mautner, do you recall when you
completed the design of the acoustical enclosure
17 that we've just been talking about?
A It was in the fall of 1994.
18 Q When was it actually constructed?
A When was it erected?
19 Q Yes, when was it put together, put in
place?
20 A In the spring of 1995.
Q Was there a reason why it wasn't
21 constructed during the heating season of 1994?
A We were waiting to receive the panels.
22 And then, the weather wasn't conducive to doing
outdoor construction at the time.
23 Q At what time?
A In the winter of 1994-95.
24 Q There are currently, there's now, in
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1083
1 August of 1996, some acoustical panels that have
been erected on top of the original enclosure,
2 correct?
A Yes.
3 Q Those additions would have been made
sometime the week of August the 5th?
4 A Yes.
Q And, the actual materials of construction
5 were plywood sheets with interior facing, with
some kind of fiberglass?
6 A Yes.
Q Did you actually do the construction,
7 Brad
Mautner?
A No.
8 Q Did Mid/
Res do the construction?
A No.
9 Q Did Mid/
Res hire somebody to do the
construction?
10 A Yes.
Q And, that gentleman's name is
Gustafson?
11 A Yes, Carpenter subcontractor.
Q And, did you give, did you, yourself,
12 give instructions to Mr.
Gustafson as to how to
construct those acoustical panels?
13 A No.
Q Did you give instructions to someone, to
14 be passed on to Mr.
Gustafson, as to how they were
to be constructed?
15 A Yes.
Q And, what were the instructions that you
16 gave?
A Well, I gave the instructions that we
17 would add an additional four feet of elevation to
the existing enclosure. And, that we should have
18 air separations to prevent air from re-circulating
back into the intake. And, that there was supposed
19 to be some type of insulating material on the
inside of the plywood panels.
20 Q Did you give any specifications as to the
nature of the fiberglass?
21 A In the phone conversation where we were
given recommendations about what to put on the
22 interior surfaces, there was a particular
insulating material mentioned. I don't remember
23 the exact make or model number, but it was, I was
told that it was not readily available when we
24 went to search for it. But, it was acceptable to
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1084
1 use, for test purposes, fiberglass. It's commonly
available.
2 MR. DIVER: Madam Hearing Officer, we now
have copies of what has been marked as Exhibit No.
3 99, Pages 5 and 6, which we're providing to you
and to counsel.
4 THE COURT: Thank you.
BY MR. DIVER:
5 Q You've just referenced a conversation
which you were given instructions as to the
6 specifications for this acoustical panel?
A Yes.
7 Q And, who was that conversation with?
A It was a telephone conference call with
8
Reece Elledge and George
Kamperman.
Q And, this is the same George
Kamperman
9 that, I believe, you said you spoke to in May or
June of 1994 as well?
10 A Of 1996.
Q I'm sorry, of 1996?
11 A Yes.
Q Had you ever spoken to Mr.
Kamperman
12 before the May or June of 1996 conversation?
A Yes.
13 Q And, when had you first -- oh, in May.
May or June of 1996?
14 A Yes.
Q When had you first spoken to Mr.
15
Kamperman about the subject of the Crown air
conditioner?
16 A It was in early May of 1996.
Q And, in that conversation of early May of
17 1996, was anyone else involved in the
conversation?
18 A
Reece Elledge.
Q Okay. Was this a telephone conversation?
19 A We had a meeting at the site, as well as
there was -- the one I'm referring to, the one you
20 referenced was the telephone conversation.
Q This early May of 1996?
21 A Right, early May was at the site.
Q At the site. So, you actually were with
22 Mr.
Kamperman?
A Right.
23 Q And, during the course of that meeting
with Mr.
Kamperman, at the site with Mr.
Elledge,
24 did Mr.
Kamperman indicate possible additional
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1085
1 steps that could be taken to reduce the sound
being experienced from the Crown air conditioner?
2 A Yes. It was his recommendation to
operate with a single compressor.
3 Q Did he make other recommendations?
A Well, he generally referred to the idea
4 that he would like to see additional enclosure
elevation height, and if we could find a mechanism
5 to control the fan speed.
Q So, the variable frequency drive, the
6 increased acoustical enclosure, as well as the
operational change to a single compressor, single
7 fan, were all the subject of Mr.
Kamperman's
recommendations in this meeting that you had with
8 him and Mr.
Elledge in early May of 1996?
A They were all part of a conversation,
9 that's correct.
Q And, following that early May of 1996
10 meeting, what did you begin to do with respect to
the recommendation of additional height of the
11 acoustical enclosure?
A Well, at that point in time, the first
12 recommendation was to change the operating mode.
Q When you spoke to Mr.
Kamperman, he told
13 you that he thought these should be done
sequentially, as opposed to in parallel?
14 A He didn't say specifically. We knew that
the change in the operating mode could be
15 accomplished through programming and some field
hardware changes. And, we needed to research the
16 impact of the additional elevation enclosure, as
well as whether or not we could even obtain
17 variable frequency drives.
Q What I'm asking you is, what did you do
18 after your early May of 1996 meeting with respect
to investigating the subject of additional
19 enclosure height?
A I don't recall when we began to
20 investigate that.
Q Isn't it true that you didn't begin to
21 investigate it until you received a call from Mr.
Elledge approximately one week after the
22 commencement of trial of this matter?
A No. I believe I looked at the manual
23 prior to that. But, he asked me to implement,
specifically to implement the variable frequency
24 drive and the elevation, additional elevation of
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1086
1 the enclosure at that time.
Q Okay. I just want to be clear about your
2 testimony. Your testimony now is that in your
first conversation with Mr.
Elledge, following
3 commencement of trial in this proceeding, that is
sometime in or before the middle of July, that Mr.
4
Elledge's instruction to you was to commence the
implementation of these additional
5 recommendations, as opposed to commencing the
investigation of these additional pieces. Did he
6 ask you to investigate or to implement in that
first conversation?
7 A He asked me to implement the nighttime
mode of operation, we discussed that, and
8 implement the single compressor operation. And, I
took it on myself to investigate the other two
9 alternatives.
Q When had you completed your
10 investigation, in particular, with respect to the
feasibility of adding additional footage to the
11 acoustical enclosure?
A Well, my investigation showed that it
12 would be higher than the recommendations, and I
don't remember exactly when it was completed. I
13 know that we began the implementation immediately
upon being informed that we could go ahead and
14 proceed.
Q All right. With respect to the
15 investigation into the variable frequency drives,
when do you recall having learned about the
16 availability or not of variable frequency drives
for this particular
chiller unit?
17 A It was in late July, mid to late July.
Q And when, with respect to your early May
18 of 1996 conversation with George
Kamperman and
Reece Elledge at the site, on site, when, relative
19 to that conversation, did you commence your
investigation of the availability of variable
20 frequency drives?
A In July.
21 Q And why did you wait approximately two or
two and a half months before commencing the
22 variable frequency drive investigation?
A Because it wasn't clear that that was a
23 measure that was going to be implemented. There
are other ways to control fan speed.
24 Q All right. Were you investigating other
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1087
1 mechanisms to control fan speed during that period
of early May of 1996 and late July of 1996?
2 A The original conversation was to look for
a multiple speed motor which could be two speeds
3 or three fixed speeds. We did not spend much time
investigating because it was not clear the
4 variable speed drives could be successfully
applied to this. So, we did not spend time, at
5 that time, investigating it.
Q But, at some later time, you did make the
6 effort to learn about that?
A Yes, in July.
7 Q And, that was after your conversation
with Mr.
Elledge on the telephone about a week
8 after this trial commenced?
A Yes.
9 Q Is that correct?
A Yes.
10 Q Now, at the time that Mr.
Elledge gave
you these instructions to commence the
11 implementation of the other two
Kamperman
recommendations, what exactly were you doing with
12 respect to investigating additional corrective
action that might be taken with respect to the
13
chiller unit?
A After his instruction for implementation?
14 Q No, at the time, just before he called
you, what had you been doing with respect to
15 investigating other mechanisms?
A I had not been doing much with respect to
16 that recommendation.
Q Isn't it true that you had not been asked
17 to do anything, and so you were not doing
anything?
18 A We had not been asked to do much, so we
did not do anything, at the moment.
19 Q Is it not true that until that
conversation with Mr.
Elledge, the last thing that
20 Mid/
Res had done itself, with respect to
identifying a sound attenuating mechanism for this
21
chiller unit, was the recommendation of the
acoustical panel that was installed sometime in
22 early 1995?
A Yes, I think that's right.
23 Q You had indicated, in your earlier
testimony, that you had been reading, the last
24 couple of years, last two or three years, I think
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1088
1 you indicated, about the existence of variable
frequency drives of a smaller stage than 10 or 7
2 horsepower, is that correct?
A Yes.
3 Q And, had you been aware, at least through
the literature for that period of time, of the
4 existence of a one horsepower variable frequency
drive?
5 A I had.
Q Did Mid/
Res ever prepare any written
6 plans with respect to the construction or
materials for the acoustical enclosure that was to
7 be added to the top of the existing acoustical
enclosure?
8 A No.
Q Did
MidWesCo, Mid/ Res or MidWesCo ever
9 prepare any plans or designs with respect to the
installation, wiring, et cetera, for the variable
10 frequency drive, in connection with the existing
one horsepower fans?
11 A No, not that I'm aware of.
Q I believe the actual cost that was quoted
12 to you by
Magnatek for the three fans was $2700,
is that correct?
13 A The quote was from the
Trane Company for
Magnatek drives, for 3 one horsepower drives,
14 approximately $2700.
Q
Magnatek, to your knowledge, is not part
15 of
Trane?
A No, I don't believe so.
16 Q When were you first advised that there
had been sound measurements of the acoustical
17 enclosure and variable frequency drive systems
prior to the test that occurred on August 15th?
18 A I believe the sound measurements, there
were sound measurements made in June.
19 Q In June. What about the sound
measurements that were measuring the sound of the
20 extended acoustical enclosure and the variable
frequency drive that occurred prior to August
21 15th, 1996?
A I believe they were made in the first
22 week of August.
Q By Mr.
Kamperman?
23 A I believe so. I was not present.
Q And, were you told of the result of that
24 test?
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1089
1 A Just generally. I didn't see any
particular data.
2 Q Okay. And, by whom were you
communicating with?
3 A Harry
Akers.
Q Do you know if Mr.
Akers had been present
4 at the time of those tests?
A I believe he was.
5 Q Okay. You indicated that this particular
system is computer driven, correct?
6 A It's computer controlled, yes.
Q Utilizing a Mid/
Res or MidWesCo software,
7 correct?
A Well, control algorithms were written by
8 us, but the software is the manufacturer's
property.
9 Q So, that's somebody else's. You
indicated that those algorithms could be
10 re-written?
A They were written and could be
11 re-written.
Q What's to stop their being re-written to
12 change the manner of operation of this particular
chiller unit?
13 A Well, you would have to be instructed to
do it.
14 Q Further, you indicated that the resident,
in the system that's now in existence, does not
15 have the ability to control the particular
operation of fans, is that correct?
16 A I'm not sure what you just asked me.
Q All right. My understanding was, form
17 your previous testimony, you said that the
resident does not have the ability to control the
18 system?
A Oh, the residents, the Crowns.
19 Q The resident, yes, I'm sorry.
A The Crowns do not have the ability to
20 change the control algorithms.
Q Could they?
21 A No.
Q Could they call you up and say change the
22 algorithm?
A They could instruct us to, and I don't
23 recall he has the programming skills, and I know
he does not have the password skill, to get into
24 the program to change it.
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1090
1 Q All that would be required would be a
call to you to ask you to change it.
2 A He would have to instruct us to change
it.
3 Q In your testimony, you indicated, I
believe, that you had never seen the system
4 operating at full RPM since the changeover to the
variable frequency drive, is that correct?
5 A It's my understanding that the variable
frequency drives have not needed to operate at
6 full RPM.
Q And, when you say have needed to be
7 operated, what do you mean by that, haven't needed
to be?
8 A The conditions of outdoor and indoor
temperature have not required it.
9 Q What are the conditions of indoor and
outdoor temperature mode that would be required to
10 exist, that would have to exist in order for these
three fans to operate at full RPM?
11 A Well, I have to speculate a little here,
but we would anticipate that the full RPM would be
12 needed when the outdoor air temperature was above
what we call a design day in Chicago. For our
13 purposes, in this discussion, we'll call it 95
degrees
farenheit. It's not clear, though, if the
14 fans will
operte at 100% RPM at that condition.
Q Is it equally not 100% that they will not
15 operate at full speed at a temperature less than
95?
16 A It's a certainty that it will operate at
a less speed below 95 degrees.
17 Q No. What I'm asking you is whether or not
you can tell me that, from what you know of this
18 system, it's not possible for the three fans to
operate at full speed when the outdoor temperature
19 is less than 95 degrees?
A It's possible, if there's a problem with
20 the system.
Q And, that's because the system isn't
21 triggered on the basis of temperature itself, as
measured by a thermometer, but by the pressure in
22 this refrigerant line, correct?
A Yes. But, they're related.
23 Q I understand. But, there are also
possibilities, I take it, for difficulties,
24 mechanical problems of some sort or another, that
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1091
1 would cause the pressure in the refrigerant to be
increased, even though the outdoor temperature is
2 not excessively hot.
A Yes, but under that circumstance, the
3 system would stop operating.
Q Because?
4 A It has safety controls to prevent it from
causing damage.
5 Q So, you're saying, for any conceivable
mechanical problem that could occur, that would
6 cause the refrigerant line pressure to increase,
the system would automatically shut down?
7 A That's what it's intended to do.
Q I understand that. I'm asking you whether
8 or not you're telling me that, is it possible for
the system to operate, continue to operate where
9 something other than outdoor temperature is
causing an increase in the refrigerant line
10 pressure?
A I think impossible is too hard to say,
11 because I suppose we could construct a scenario
where the safety controls failed, and the system
12 continued to operate to the point of failure.
Q I believe we had a couple of those design
13 days within the last week or two, is that correct?
A No, I don't believe so.
14 Q I could have sworn that you told me last
Friday that we'd had two of the design days the
15 week before?
A That's not what I told you.
16 Q What did you tell me, with respect to the
last time we've had a design day in Chicago?
17 A I don't know if we reached a design day.
I said it was in the 90's during the week of the
18 5th, and I left for vacation on the 7th. And, it
was my understanding that, I believe on the 6th,
19 it was in the 90's, the low 90's. But, after that,
I was not here and I don't know.
20 Q Did you experience the actual operation
of the fans at any time when the temperature was
21 in excess of 90 degrees at the time the
measurement was being made?
22 A I was not there.
Q Did you know of anybody who was there at
23 the time when the temperature outside was 90
degrees and the fans were operating on the basis
24 of this computerized system?
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1092
1 A I don't know.
Q I believe you stated that these two
2 pieces of the program, that is the increase in the
height of the enclosure and the variable frequency
3 drives were installed in or about August 5th?
A During the week of August 5th?
4 Q Prior to that time, the nighttime
operation of the system was, as I understood it,
5 one compressor and one fan, is that correct?
A Yes.
6 Q Now, the nighttime operation is one
compressor and one, two, or three fans, depending
7 upon the demands of the pressure in the
refrigerant line?
8 A No.
Q All three fans will operate, but at a
9 reduced level.
A Yes.
10 Q Will they all operate at the same reduced
level?
11 A Yes.
Q So, they are synchronized in the sense
12 that each one is not operating at a different
speed, but they are in unison, operating at
13 different speeds?
A Yes.
14 Q In establishing this particular system
that you talked about, the increase in the
15 enclosure and the variable frequency drives, did
you receive instructions with respect to how this
16 system should be designed and operated from anyone
other than
Reece Elledge and George
Kamperman?
17 A No.
Q The actual acoustical panels, should I
18 understand now that the height of the acoustical
construction right now is 12 feet?
19 A Yes.
Q How are those panels affixed to the old
20 enclosure?
A I believe they're affixed with sheet
21 metal screws.
Q Is that a permanent change?
22 A It's anticipated it's a permanent change.
Q That it's anticipated that that four feet
23 addition will stay on top of the 8 foot enclosure,
is that what you're saying?
24 A I don't know that. I've not been
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1093
1 instructed to remove it.
Q Have you been instructed that at some
2 future point in time, that that particular unit
will change to be a 12 foot high unit as opposed
3 to a 9 foot and a 4 foot unit?
A I don't know.
4 Q You're saying you haven't been told that?
A No, I haven't been told that.
5 Q You indicated on the night of the test,
August 15th, 1996, that in order to establish the
6 various operating modes for the unit, you had to
call an engineer at a remote location?
7 A Yes.
Q And, you provided that engineer a set of
8 instructions as to how to change the operating
mode of the unit, correct?
9 A Yes.
Q And, was the person in charge, that
10 engineer on duty, required to change the
algorithms for the system in order to do that?
11 A In this particular case, what he did was
override the system for a temporary change, at my
12 request.
Q Is it possible, then, in order to have
13 this system operating in a function different from
that which the computer ordinarily would do, not
14 only to change the algorithms, but also to
override the system?
15 A It's possible.
Q How do you determine, if you determined,
16 whether or not the instructions that you had
communicated by telephone were actually followed?
17 That is, whether, in particular, the protocol that
was identified as full power was, indeed, full
18 power?
A I didn't determine it.
19 Q Was there any way you could have
determined it?
20 A Well, I determined it by asking the
engineer on duty to read to me the level from the
21 computer. I didn't determine it independently.
Q I'm asking was there a way that you could
22 have determined it independently?
A Me?
23 Q You.
A No.
24 Q Was there a way that anybody on site that
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1094
1 night could have determined independently whether
or not the operating modes that the equipment was
2 supposed to be running in for the sound tests were
actually the modes that it was operating in?
3 A Part of it, we could determine.
Q That's when it was off?
4 A Off, as well as two compressor operation.
Q You could tell whether there were two
5 compressors on? How could you tell that?
A You can go near the unit and see that the
6 two systems were operating. You can hear the two
independently operating.
7 Q Is that what you did, to determine that
when it was supposed to be in the two compressor
8 operation, that that was the circumstance?
A I did not, no.
9 Q Again, your expertise is not in
acoustics, is that correct?
10 A Yes.
Q Yes, I'm correct, it's not?
11 A Yes, you're correct.
Q Or, in sound measurement?
12 A Not in sound measurement, no.
Q Or in designing soundproofing systems?
13 A No.
MR. DIVER: Could we have a quick huddle,
14 Madam Hearing Officer, just to see if we're done?
THE COURT: Yes. Take a minute off the
15 record.
(Off the record)
16 THE COURT: Back on the record.
BY MR. DIVER:
17 Q It's my understanding that you'd been
told about the various suggestions that had been
18 made by Greg
Zak during his testimony in this
proceeding with respect to additional changes or
19 add-ons that might be made to reduce the amount of
sound perceived from this system, is that correct?
20 A Briefly, yes.
Q And, one of those concerns was the
21 establishment of a ground cooling system, correct?
A Generally speaking, yes.
22 Q And, did you investigate that?
A I did not.
23 Q Did you ask somebody to investigate it?
A I asked Harry
Akers.
24 Q And, what did Harry report back to you
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1095
1 concerning that particular system?
A His report to me in general was that it
2 didn't seem feasible or reasonable for this
application. And, in light of other changes that
3 were contemplated, could be implemented more
quickly, they seemed more favorable. And, we had
4 no further conversation about it.
Q Okay. So, do I understand, then, that Mr.
5
Akers was cognizant of these other changes that
had been proposed by George
Kamperman as well?
6 A Yes, I mentioned them to him.
Q Do you know whether or not there was any
7 investigation of Mr.
Zak's recommendation of an
air tight enclosure around the
chiller unit?
8 A There was not, that I'm aware of.
Q One more thing. What was the actual cost
9 that the contractor gave you for erecting the
acoustical panels?
10 A I don't have a cost yet. We're waiting
for his bill.
11 MR. DIVER: No further questions.
MR. ELLEDGE: I have a few brief ones.
12 REDIRECT EXAMINATION
BY MR. ELLEDGE:
13 Q Mr.
Mautner, I'd like you to cast your
mind back to the question of activities during
14 May, June, and July. And, the first time you met
George
Kamperman was at the site, did you say?
15 A I met him in early May.
Q In early May, at the site?
16 A Yes.
Q And, was there a subsequent meeting at
17 your offices?
A Yes.
18 Q Okay. And, there have been subsequent
telephone conversations?
19 A Yes.
Q Okay. And, during those, during that
20 period, there have been a number of different
ideas mooted, is that not so?
21 A Yes.
Q Okay. Did you, was there any exploration
22 of the question of fan design, was that
considered?
23 A Well, we
dicussed briefly that there
could be different propellers on these fans, but
24 we did not explore different propeller types.
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1096
1 Q Could you tell us what active sound
reduction is?
2 A We also had, that's true. We also
discussed briefly active noise reduction.
3 Q And, did you pursue that issue?
A I looked into it briefly.
4 Q And, to whom, with whom did you
correspond on that?
5 A I called a company called
Digisonix to
see if they had any products that would make sense
6 as an active noise reduction product.
Q And, what were you told?
7 MR. DIVER: Objection, hearsay.
MR. ELLEDGE: I think this is, really
8 goes to the question of, as we've talked about
before, as to what his state of mind was, and
9 whether things were pursued or not pursued. And,
the issue of whether he was encouraged or
10 discouraged becomes very significant in that
regard, your Honor.
11 MR. DIVER: Madam Hearing Officer, if
this witness' state of mind were at issue, I'd
12 concur, but it's not. This witness is here to
testify as to what factual matters he did. He's
13 not the Respondent or Complainant, unless he wants
to be Respondent.
14 THE COURT: Could you rephrase your
question?
15 BY MR. ELLEDGE:
Q What conclusion did you reach as a result
16 of that conversation?
MR. DIVER: Objection, same --
17 MR. ELLEDGE: What conclusions did you
reach, that's my question.
18 THE COURT: Overruled.
A The conclusion from my conversation with
19
Digisonix was that they did not have a product
available that they thought was appropriate for
20 this application. And, led me to make one further
phone call to a consulting company on the east
21 coast called BBN, stands for three names, which I
can't remember the exact names.
22 Q What conclusion did you draw from, if
any, after your contact with BBN?
23 A BBN, my conclusion was after, after
speaking with them, was that active noise
24 reduction, in this particular application, didn't
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1097
1 seem appropriate. They were unaware of any
commercially available products to do so.
2 Q Did you, during this period, look into or
cause someone to look into the question of a water
3 cooled --
MR. DIVER: Objection, leading.
4 MR. ELLEDGE: Well, this is
cross-examination.
5 MR. DIVER: It's your witness.
MR. ELLEDGE: Let me withdraw the
6 question and phrase it in a different way.
BY MR. ELLEDGE:
7 Q What consideration, if any, did you give
to a water cooled system? And, by water cooled,
8 I'm assuming that means wells.
A Well, when the subject came up of using
9 the ground as part of the heat
sink*, if you will,
for this operation, I believe Harry
Akers also
10 looked at using ground water as a condenser water
medium. His conclusion to me was that we could
11 not acquire enough water flow to use that in this
particular application. So, we didn't spend a lot
12 of time looking at it.
Q What consideration, if any, did you give
13 to the possibility of installing additional fans
on the enclosure to increase air circulation?
14 A Well, I had mentioned to George that if
the additional elevation of the four foot
15 enclosure caused too large a restriction of air
movement, that I thought we might be able to put a
16 small fan in one opening in that part of the
enclosure, to be sure that the discharge airways
17 relieved properly.
Q What, if you can recall, was the genesis
18 of that idea?
A It was kind of a hybrid idea that came up
19 from George
Zak's comment originally.
MR. ELLEDGE: I have nothing further.
20 RECROSS EXAMINATION
BY MR. DIVER:
21 Q Mr.
Mautner, when was all this
brainstorming done that you've just been
22 describing to Mr.
Elledge?
A In June.
23 Q June of 1996?
A Yes.
24 Q After the sound measurement had been made
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1098
1 of the single compressor, single fan operations?
A I believe so, yes. No -- I don't
2 remember. I believe so.
Q Did Mr.
Elledge just tell you the answer
3 was wrong?
A I know it was in June. I don't remember
4 the timing or the sequence, but --
Q Did you just look to Mr.
Elledge for some
5 indication of whether your answer was correct?
A No, I just looked at Mr.
Elledge, and he
6 was shaking his head.
Q As though your answer was wrong?
7 A Perhaps.
Q Is that what you understood it to mean?
8 A Perhaps.
MR. DIVER: I have no further questions.
9 THE COURT: Does that conclude your
re-cross?
10 MR. DIVER: Yes, it does.
THE COURT: All right, then, at this
11 point in time--thank you, Mr.
Mautner, and we'll
take a lunch break. And, we'll discuss our return
12 time off the record.
(WHEREUPON, the luncheon recess was
13 taken.)
AFTER RECESS
14 THE COURT: Okay. We're back on the
record after lunch, and we have two preliminary
15 items. We have the introduction of exhibits
related to the Village of
Winnetka ordinance
16 concerning sound emissions. And, we also have a
ruling on the request for in camera review of
17
discoverability of certain notes made by Mr.
Shelton. First, let's take care of the ordinance.
18 MR. DIVER: Yes, Madam Hearing Officer.
At our last hearing, we tendered the court and to
19 counsel for the Respondent a copy of an amendment
to the Village of
Winnetka ordinances of January
20 of 1996, as well as a copy of the ordinances as
amended by that amendment. We tendered today a
21 copy of the Village of
Winnetka ordinance in
effect at the time that the air conditioning unit
22 was installed at the Crown property, relative to
the
subjct of permitting or licensing of air
23 conditioning units. The latter has been given
Exhibit No. 112. The two former documents were
24 109 and 110. It's my understanding that counsel
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1099
1 for Respondent has no objection to the admission
of Exhibit No. 112, being the ordinance that was
2 in effect at the time of the installation of the
unit.
3 MR. CARSON: That's right, we have no
objection to 112.
4 THE COURT: 112 will be admitted into
evidence.
5 MR. DIVER: We, again, re-offer 109 and
110, being the ordinance of the Village of
6
Winnetka concerning air conditioning units, which
have been amended since the date of the
7 installation of the Crown air conditioner, to
reflect the position of the Village of
Winnetka
8 concerning the need to control noise emissions
from those units, not for the purpose of
9 establishing that there's been any violation of
that ordinance. We don't believe there is. We
10 concede that there has not been, but for the
purpose of establishing the position of the
11 Village of
Winnetka, with respect to noise
emissions from air conditioning equipment and the
12 reasonableness of those noise emissions, as
expressed by ordinance.
13 MR. CARSON: We're objecting to 109 and
110 on the basis that it's not relevant what the
14 position of the Village of
Winnetka is, by
ordinance, as to emissions from air conditioning
15 units. These are ordinances which, on their face,
came into being in 1995 and/or 1996. And,
16 therefore, have no relevance whatsoever to this
installation, which occurred in and was first
17 operated in 1993.
MR. DIVER: Your Honor, if I just may
18 respond briefly. Our response is that, indeed,
the noise emissions that have been ongoing through
19 today or at least through August the 16th of 1996
have been occurring during 1995 and 1996. It was
20 the expression of the Village of
Winnetka as to
what it considers to be
resonable and what is
21 necessary to be controlled is most relevant,
particularly in context of a piece of
22 correspondence from Mr. Crown in which he
indicated that he would await the development of
23 regulations by the Village of
Winnetka concerning
the limitations that he would be subject to.
24 THE COURT: I believe the Board will be
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1100
1 interested in seeing the ordinance in all its
permutations and, therefore, the objection is
2 overruled. Exhibits No. 109 and 110 will be
entered into evidence.
3 All right. We have a request this morning
by Respondents for the production of notes made by
4 Mr.
Shelton with respect to certain readings that
were performed on Mr. Crown's air conditioning
5 system. And, the first two pages of the notes
were not at issue. The first two pages of the
6 notes will be provided to Respondent by agreement
between the parties. The remainder of those are
7 Pages 3 through 7. And, briefly, I'll describe
those. Pages 3 through 7 are personal analysis
8 notes of Mr.
Shelton in which he compares and
contrasts some of the numerical readings of
9 various noise tests that had been performed, and
readings of which had been entered into evidence.
10 However, it also includes conclusions and concerns
of his with respect to his comparison of these
11 figures. And, clearly indicates that these notes
are of a personal nature. And, clearly, it is
12 apparent that he intended to discuss this with
counsel with respect to the continuation of the
13 case. It includes two pages of handwritten notes,
and it also includes notes that he made on his
14 personal computer for the same purpose. Those
will not be discoverable. All right.
15 MR. DIVER: Thank you, Madam Hearing
Officer. We'll have copies made of 109, 110 and
16 112.
THE COURT: And, the first two pages of
17 the notes, and then please return these to Mr.
Shelton.
18 MS. MOLSON: How many copies?
THE COURT: Let's make three copies of
19 the first two pages.
Would Respondents like to call their
20 next witness?
MR. ELLEDGE: Yes, Mr.
Elfering, please.
21 R O B E R T P A U L E L F E R I N G,
after having been first duly sworn on oath,
22 deposes and testifies as follows:
DIRECT EXAMINATION
23 BY MR. ELLEDGE:
Q Mr.
Elfering, would you state your full
24 name, please?
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1101
1 A Robert Paul
Elfering, Junior.
Q And, where do you reside?
2 A 37033 North George Court, Lake Villa,
Illinois.
3 Q And, by whom are you employed, sir?
A Shiner and Associates.
4 Q And, how long have you been with Shiner
and Associates?
5 A It will be six years in November.
Q In what capacity?
6 A I'm an acoustical consultant.
Q How did you prepare yourself to become an
7 acoustical consultant?
A Well, I have a Bachelor of Arts in Math
8 and Physics, and I was employed by USG
Corporation. We have a research facility in Round
9 Lake. I was employed by them for 13 years. I've
been employed by Shiner and Associates for almost
10 six years, and I've been a registered, licensed
professional engineer in the State of Illinois
11 since 1988.
Q And, are there any specific areas of
12 which you specialize with regard to your
employment with Shiner and Associates?
13 A We do a variety of acoustical work.
We've worked in concert halls, we've done
14 environmental studies for traffic noise, for
mechanical noise sources, for industrial acoustics
15 within plants. We've worked with architects for
the design of
highrise construction, which
16 involves partition systems and floor-ceiling
construction, a variety of different acoustical --
17 Q And, among other things, do you measure
sound?
18 A Yes.
Q What kind of equipment do you normally
19 use, or what kinds of equipment do you use?
A Well, we have several types. We had hand
20 held sound level meters. We have a real time
analyzer, which is also a sound level meter. But,
21 it performs all of the frequency analysis at one
time. The instrument we used, that I used
22 Thursday night is, the manufacturer is
Bruel-Kjaer. It's a type 2230 integrated sound
23 level meter, which means it's accurate to within
plus or minus one decibel. It has a filter set.
24 You're measuring in, overall, weighted sound
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1102
1 levels and sound levels that were filtered into
octave bands from 1000 to 8000 hertz, per Illinois
2 Pollution Control Board
limitatins.
Q Now, may I ask you if you had occasion to
3 go to the
Shelton residence on
Ardsley in Winnetka
within the past week?
4 A On Thursday evening when we did our
measurements.
5 Q All right. And, that was Thursday, August
15th?
6 A Correct.
Q And, what time did you arrive and
7 commence?
A I arrived approximately 9:00 o'clock,
8 9:00 p.m., I believe. The measurements lasted
between roughly 9:30 and 11:30 in the evening.
9 Q And, would you, once again, tell us the
equipment that you used to make these
10 measurements?
A It was the
Bruel-Kjaer Type 2230
11 integrated sound level meter.
Q And, did you record the -- well, let me
12 talk--first, let me direct your attention, if I
may, to what has been marked as Exhibit No. 51.
13 And, do you, are you able to identify -- are you
able to recognize what's depicted there?
14 A Yes. This is, appears to be the Crown
residence. And this, with the red line, appears
15 to mark the location of the air conditioning unit.
Q Why don't you, with respect to the red
16 line you just spoke of, put a black "X" inside
that and put Crown
A.C.
17 Now, continuing further north on
that drawing.
18 A Well, this is the property line which, I
assume, the fence, there's a stockade fence there.
19 MR. ELLEDGE: The record will show that
he's pointing to a dark dashed line. Continue.
20 A Across from the fence, there's foliage
and there's the
Shelton residence. And, this would
21 be the southeast corner. There's a glass enclosed
porch or family room. Do you want me to describe
22 the positions?
Q Yes, if you would. I'm going to give you
23 a blue felt pen, and if you would locate--let me
ask you this. Did you measure more than one
24 position?
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1103
1 A I measured a total of five different
positions.
2 Q Why don't we do them numerically. So, if
you'd mark Position No. 1?
3 A Position No. 1 was just to the north of
the fence, probably around 10 feet, 6 to 10 foot
4 north of the fence opposite the unit.
Q All right.
5 A Position 2 was out on the top patio
opposite, the
Shelton's have an outdoor AC
6 condenser next to the house.
Q Is that condenser marked on that?
7 A Well, there's a black circle with an X,
that it's approximately in that location.
8 Q Okay.
A Position 3 was along the fence, but
9 further east.
MR. DIVER: That's along the north fence
10 line.
A North on the Crown property?
11 MR. DIVER: Right.
A Yes. Somewhere here, approximately 50
12 foot, I would say east of Position No. 1.
BY MR. ELLEDGE:
13 Q That's being marked with an X and a No.
3.
14 A No. 3. No. 4 was on top or on the roof
of this glassed-in house addition, along the,
15 close to the south eve.
Q You said there was a fifth.
16 A There was a fifth that was within the
Crown property. It was on the north side of the
17 driveway. It looks like it's been, this Position
A is close to it. I thought it was closer to
18 this.
Q We'll put it where you think it is, and
19 then mark that.
A Mark that No. 5. And, that was at the
20 north end of the paved driveway that continues
around to the back of the house.
21 Q Okay. Now, how did you get yourself in
position to measure No. 4?
22 A We climbed a step ladder, a ladder that
was put against the house.
23 Q All right.
A We stood on the roof. We were
24 approximately, might be approximately four feet
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1104
1 above the roof edge.
Q And, about how far was it from the --
2 well, were there windows nearby? Did the rest of
the house have a second floor?
3 A It had a second floor. We were, I would
say, roughly 10 foot from that, from the corner of
4 the main house.
Q Okay.
5 A So, I don't anticipate there was
reflection off of the house back into the
6 measurement position.
Q Now, did you measure sound in each of
7 those positions, at least the first four
positions, at different times and in different
8 circumstances?
A We measured it, noise under maybe four
9 different operating conditions. We measured at
positions 1 and 2 with both the Crown AC unit
10 operating and the
Shelton unit operating. I have
a copy of my report. I may need that to refresh
11 my memory.
Q Well, let me show you what has been
12 marked as Respondent's Exhibit No. 9.
MR. ELLEDGE: Madam Hearing Officer,
13 disregard the post it note. This is a copy of the
report the witness has. Would you take a minute
14 to review what has been identified as Exhibit No.
9, and then would you tell us what it is?
15 A Exhibit No. 9 is a letter in which I
summarized the readings taken on Thursday, August
16 15th. It describes several different operating
conditions of the air conditioning unit, and the
17 measurements taken at the identified measurement
locations. It lists measurements taken at 1 and
18 2, the Crown unit operating under what was termed
the nighttime mode, and with the
Shelton units on.
19 Measurements were taken at positions 1 to 4 with
the Crown unit on and the
Shelton unit off. The
20 Crown unit was also operating at nighttime mode.
There were ambient measurements taken. Ambient,
21 meaning both units were off and the noise sources
were whatever was being produced from neighboring
22 areas. We tried to take the measurements during
quiet periods. There were aircraft
flyovers, and
23 dogs barking, and so forth. But, we tried to take
the measurements when none of that was happening.
24 The one sound we could not avoid was, I believe it
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1105
1 was insects or frogs or something. It was some
critters were making noise, and that appeared in
2 the 2000 hertz, primarily. Also, in the 4000
hertz matter. We also made measurements with the
3 Crown unit on, the
Shelton unit off. The Crown
unit was operating what was called the daytime
4 mode, at 20 hertz. That pertains to measurement
Position No. 4.
5 MR. DIVER: Madam Hearing Officer, I'm
going to have to object, at this point, because
6 there's been no foundation, at this point, as to
the operating level at which the air conditioners
7 were being operated. I haven't heard a foundation
yet, anyway. So, I'm going to object to his
8 testifying as to their actually operating at that
level, or if he's just saying whatever level it
9 was, we're calling it this.
A This is what it was termed.
10 THE COURT: Excuse me.
MR. ELLEDGE: We do have a foundation for
11 measurements that were taken, and the operating
mode it was in, and how it is, from the previous
12 witness, Mr.
Mautner. And, as far as the specific
objection is concerned, the report is what it is,
13 and he's testifying as to what he understood, I
assume. And, I think there's nothing wrong with
14 his testimony saying, describing in a
narrtive
form what he heard.
15 MR. DIVER: That clearly isn't, as far as
we're concerned, Madam Hearing Officer. As long
16 as what he's saying, what I've written down under
this column is under this column, I can't testify
17 what the level was it was actually operating at, I
don't know that.
18 THE COURT: Overruled. You may proceed.
A What I understood to be the Crown unit
19 operating under daytime mode of 20 hertz, the
Shelton unit off, was measured at Position 4. I
20 believe there's an error here with Position 5. I
believe that's in the wrong location.
21 Q I want you to take a pen and mark where
you feel it should have gone.
22 A I believe it should be under the
nighttime mode with the
Shelton unit off. This was
23 the very last measurement that we took. There was
two, what they call daytime modes. One was 20
24 hertz, then it was, I understood it to be cranked
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1106
1 up to 60 hertz, and set at that.
Q Let me stop you there. Were you asked to
2 re-measure certain -- were you asked to
reconduct
certain tests at that point?
3 A After we had measured Position 4, what I
understood to be daytime mode at 20 hertz, the
4 unit was, the operating conditions were modified
to operate daytime mode at 60 hertz, which I
5 assume to be the most, under the most, the unit
was under the most load, which should correspond
6 to the loudest operating mode.
Q Did you notice any difference in the
7 unit?
A Yes, it was louder. It shows in the
8 measurements.
Q So, the latter measurement --
9 A The very last measurements would be under
the most critical noise producing condition.
10 THE COURT: Sir, did you testify that
there's an inaccuracy in that description of that
11 position, or--is that correct?
A I'm saying that where it says Position 5
12 was listed under the wrong heading. It was the
last measurement taken. I had, I believe, after
13 measurements 1 through 4 in that last section, I
think we had thought that the measurements were
14 over, and I believe they switched back to
nighttime mode. That's my recollection.
15 Q You're not absolutely sure?
A I'm not absolutely sure.
16 Q But, in any case, Position 5 was the last
measurement taken.
17 A And, I believe it was done, I think, I
believe they had switched back to the nighttime
18 mode.
THE COURT: So, what's shown under Crown
19 unit daytime mode, 20 hertz on,
Shelton unit off,
where it says 5, Line 5 really should have been at
20 the very bottom?
A It should have been two categories up,
21 under where it says Crown unit nighttime mode on,
Shelton unit off.
22 THE COURT: Okay.
MR. ELLEDGE: May I show this, please, to
23 the Hearing Officer?
MR. DIVER: What's the Exhibit Number on
24 this,
Reece?
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1107
1 MR. ELLEDGE: 9.
THE COURT: All right. The clarification
2 has been identified on the exhibit.
BY MR. ELLEDGE:
3 Q Now, what you have in front of you is
Exhibit No. 9. Who prepared that?
4 A I prepared this.
Q And, does it truly and accurately reflect
5 the sound measurement recordings that you made on
the evening in question?
6 A Yes.
MR. ELLEDGE: I have no further
7 questions. But, I would move the introduction of
this document.
8 MR. DIVER: Madam Hearing Officer, if I
could conduct a small
voir dire with respect to
9 these data. Obviously, he did not type these up
on the spot.
10 THE COURT: Proceed.
VOIR DIRE EXAMINATION
11 BY MR. DIVER:
Q If I may. Mr.
Elfering, did you prepare
12 handwritten notes at the time of the recordation
of the sound measurement levels?
13 A I have a handwritten tabulation of the
data, and there was a heading, and I listed
14 operating conditions.
Q Do you have that document with you?
15 A I do not. I faxed a copy to
Reece.
MR. DIVER: Okay. I wonder if we can
16 have that document marked as an exhibit number.
You want to mark it yours or ours?
17 MR. ELLEDGE: Ours. Mark it as
Respondent's No. 10. You want to take a look at
18 it?
MR. DIVER: Sure, please, thank you.
19 BY MR. DIVER:
Q Okay. Mr.
Elfering, the document that
20 has just been marked as Exhibit No. 10, is that a
true and correct copy of the handwritten notes
21 that you made?
A Yes, sir.
22 Q On the evening of August the 15th, 1996,
during these sound measurements?
23 A Yes.
Q And, can you tell us whether there's any
24 information
contianed on those handwritten notes
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1108
1 that has not made its way onto the typewritten
page dated August 16th, 1996, being Exhibit No. 9?
2 A I don't believe so. I believe all the
information here is contained in Exhibit No. 9.
3 Q Okay. And, have you made, yourself, a
cross-comparison for each of these numeric entries
4 from the raw copy to the typewritten copy to
verify that it's, indeed, the same number?
5 A Yes.
MR. DIVER: With that, I'd have no
6 objection, providing 10 and 9 both come in.
MR. ELLEDGE: I move the introduction of
7 both 9 and 10.
THE COURT: Respondent's Exhibits No. 9
8 and 10 are entered into evidence. Thank you.
MR. ELLEDGE: I have no further questions
9 of this witness.
THE COURT: Do you have
10 cross-examination?
MR. DIVER: One moment.
11 CROSS EXAMINATION
BY MR. DIVER:
12 Q Mr.
Elfering, on Exhibit No. 9,
Respondent's No. 9, looking at the last mode,
13 being Crown unit daytime mode, 60 hertz on,
Shelton unit off. Looking at data set one and
14 looking particularly at the number under 2000
hertz.
15 A Yes.
Q That number is 42 decibels, is that
16 correct?
A Correct.
17 Q That number itself, as compared against
the IPCB nighttime standard of 30, is 12 decibels
18 higher, correct?
A That number is 12 decibels higher.
19 Q All right. And, what does, what's the
significance of the entry of 42 compared to the
20 nighttime standards of 30?
A The number is higher. However, it's high
21 for all locations. And, my belief is that this was
caused by insect levels or animal life of some
22 kind.
Q Is it your belief that the 42 itself is a
23 recording of insect sound as opposed to the air
conditioner?
24 A Yes.
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1109
1 Q Is sound additive in the
environemnt?
A Sound is additive. However, you cannot
2 discriminate between -- I can say that the air
conditioner was not measurable in that respect
3 because the sound was dominated by the insect
level.
4 Q So, when we look at the section called
Crown and
Shelton units off, ambient noise for the
5 same 2000 hertz level, we see 39. Then, we see 42
under the --
6 A Two different locations, for Location 4
aambient was 39, and Position 4 was the daytime
7 mode, it was 40, undoubtedly, is variation in the
animal noise. So, I don't see any significance of
8 one decibel.
Q Looking at the same condition that we
9 looked at initially in the Crown unit daytime
mode, 60 hertz on,
Shelton unit off. Looking at
10 the 63 hertz band, you see an entry of 62.
A Yes.
11 Q Which, in and of itself, I guess, to my
eye, doesn't appear so significant, except as
12 compared to the two numbers on
eiither side; that
is the 54 at the 3100 hertz level, and the 55 at
13 the 125 hertz level. Is there any possibility,
within a reasonable degree -- strike that -- is it
14 probable, within a reasonable degree of scientific
certainty, that that recordation of a 62 indicates
15 the finding of a discreet tone?
A It's possible, I don't know that you
16 could say it's probable. It's an octave band.
And, what's registered there as 62 could be due to
17 either broad band source there, or a discreet
tone.
18 Q What's a discreet tone?
A It would be -- well, a tone is it would
19 be a single frequency, sound at a single
frequency, something like a sign wave. A typical
20 broad band noise has energy at the, over a band of
frequencies, and that is what mind cannot
21 discriminate between pure and broad band sound
within an octave band, whatever an octave band is
22 registered.
Q Is there a machine which can measure --
23 A Sure. You can get a
Finner Filter
setting to 1/3rd octave or 1/12th octave, or you
24 can measure with what's called a FFT, that's a
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1110
1 transformer machine which will more closely
pinpoint the individual frequency, FFT analyzer.
2 Q And what, if anything, is the
significance of a discreet tone to the human ear?
3 A Discreet tone might be more noticeable
than a broad band sound. I believe there's some,
4 I believe it's -- a discreet tone can be more
noticeable than a broad band source of sound. To
5 my ear, I did not detect a discreet tone. The
sound appeared to be broad band in nature.
6 Q Okay. Did you, on the evening of the
test, detect any sound that might be described as
7 a beating sound?
A I did not hear a beat, beating sound.
8 Beating, meaning it's caused by two frequencies
that are close together. And, the overall
9 impression might be that it raises and lowers in
level. I did not hear that.
10 Q At any of the locations?
A No.
11 Q Did anybody at the scene that evening
bring to your attention that he or she had
12 experienced a beating sound at one of those
locations?
13 A I believe David
Shelton made some comment
when we were walking from Position No. 3. I did
14 not hear that beating.
Q Would that position have been the
15 so-called campground position?
A I'm not sure what you mean by campground.
16 Position No. 3 was east of Position No. 1.
Q About 50 feet east?
17 A Correct.
Q Okay.
18 MR. DIVER: No further questions.
THE COURT: All right. No redirect?
19 MR. ELLEDGE: No, thank you.
THE COURT: Off the record for a moment.
20 (Off the record)
THE COURT: Back on the record.
21 MR. ELLEDGE: Would you swear the
witness, please?
22 (Witness sworn)
P E T E R K E L
L E R
23 after having been first duly sworn on oath,
deposes and testifies as follows:
24 DIRECT EXAMINATION
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1111
1 BY MR. ELLEDGE:
Q Would you state your name, sir?
2 A Peter
Keller.
Q And, where do you reside?
3 A 645 Sunset Lane,
Glencoe.
Q And, could you tell us what is your
4 business or profession?
A I'm a general contractor.
5 Q How long have you been a general
contractor?
6 A Approximately 12 years.
Q And, do you have a
speciality in terms of
7 types of construction you do?
A Basically, single family home renovation.
8 Q In the last 12 years, how many single
family home renovation projects have you worked
9 on, approximately?
A Probably three or four per year, on
10 average.
Q So, we can do the math ourselves. Are
11 you familiar with the residence of Steve and Nancy
Crown on
Ardsley?
12 A Yes, I am.
Q And, did you have some association with
13 that residence?
A Yes, I was general superintendent on that
14 project.
Q During what period were you doing so?
15 A From May 8th of 1992 through March 15th
of 1995.
16 Q I'd like to show you what's been marked
as Exhibit No. 49, which is a letter dated October
17 11th, 1993. Have you seen that before?
A Yes, I have.
18 Q Okay. Do you recall having a meeting,
prior to that date, with -- first of all, do you
19 know David and
Susi Shelton?
A Yes, I do.
20 Q And, have you had occasion to meet
them -- did you have occasion to meet them during
21 the course of the Crown project?
A Yes, I did.
22 Q And, did you have occasion to meet with
them in early October of 1993?
23 A Dates are going to be tough, but I met
with them several times during the course of the
24 job.
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1112
1 Q All right. Could you describe -- did you
have occasion, when you met them, both at the same
2 time, on the Crown property?
A I think that was just after we had turned
3 on the air conditioning for the first time, and
left it running at night.
4 Q All right. Who was present at that
meeting?
5 A Just myself and the
Sheltons.
Q Both Mr. And Mrs.
Shelton?
6 A That's correct.
Q And, where did that meeting take place?
7 A Right at the front door to the property.
Q And, could you describe that, the
8 conversation you had or that they had with you?
Could you describe that meeting?
9 A Basically, Mr.
Shelton was concerned with
the air conditioning. He had informed me that he
10 was part owner, I believe, of an air conditioning
firm, if I'm not mistaken, in Ohio, and he asked
11 me or -- no, actually, he told me that the air
conditioning unit was about 8 tons, in a question
12 form. And, I didn't disagree with that. At this
point, I wasn't going to say anything until I
13 talked to my boss.
Q Did you have any conversation with
14 respect to moving the unit?
A I think the question was posed to me,
15 could the unit be placed somewhere else on the
property. And, yes, it could be placed somewhere
16 else on the property. But, I built strictly by
prescription. The unit was placed in a proscribed
17 spot when I put it there, and I didn't have any
alternative in the matter. As far as moving it
18 somewhere else on the property, in construction,
anything can be done. I could move the house on
19 the property also. I mean, anything can be done.
Q All right. Could you tell us, at that
20 time, what was the status of the HVAC project?
MR. DIVER: What date are we talking
21 about?
MR. ELLEDGE: We're talking the date of
22 the meeting, which has previously been identified
early October, 1993.
23 MR. DIVER: Prior to the letter?
MR. ELLEDGE: Prior to the letter.
24 BY MR. ELLEDGE:
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1113
1 Q Now, could you tell me what was the state
of the HVAC system at about that, in that period,
2 early October?
A We fired the units up. We needed the
3 units running to pull the moisture out of the
building so we could continue with the millwork.
4 And, obviously, to fire the units up, we were
probably at somewhere in 95% completion at that
5 point.
Q What other trades were working in the
6 building at that time?
A All trades.
7 Q Could you name, generally, what those
trades were?
8 A Well, all mechanical trades were still
involved, plasterers were still touching up crown
9
mouldings, millworkers were installing millwork,
floormen were installing stone. So, basically, all
10 trades were still involved.
Q Was there plumbing involved?
11 A Yes.
Q What was the state of the plumbing work?
12 A At that point, we were roughed in
mechanically across the board. And, plumbing was
13 being trimmed out as we completed the tile
project.
14 Q What does it mean to be "roughed in"?
A That means the basic pipes are in place
15 for the walls to be closed up, and the millwork to
begin; cabinet placement, countertop placement,
16 and so forth.
Q And, what generally is millwork, what is
17 that? What kind of work is that?
A Wood.
18 Q
Wook working?
A Right.
19 Q And, what was the state of the
millworking at that point?
20 A It was probably, it was underway, and it
was probably at something like, right now, I'm
21 going to guess and say maybe 30%. And, that was
the, that created the need to keep the air
22 conditioners on, to pump the moisture out of the
building.
23 Q Could you tell me what the state of the
electrical work was?
24 A Once again, all mechanical trades were
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1114
1 roughed in, at that point. And, the electrical was
being trimmed as we closed up certain walls.
2 Q What would have been necessary in terms
of all trades, to have undertaken to relocate the
3
chiller unit at that time?
A Well, the first thing we'd have to do is
4 go through an engineering study, a feasibility
study. But, as far as actually relocating it, you
5 would involve HVAC, plumbing, concrete,
landscaping, electrical, almost every mechanical
6 trade would be involved in that procedure.
Q Would this have been a lengthy process?
7 A Very lengthy. And, at this point, since
we are into millwork, very costly. It would have
8 stopped the job.
Q To relocate would have stopped the job?
9 A Or risk the millwork, or the woodwork
taking on so much moisture, that it would buckle,
10 bow, and warp.
Q And, can you make an estimate of what it
11 would have done to the completion date for the
job?
12 A I think the engineering, you know, to
move that HVAC unit, the engineering and
13 feasibility studies would take longer than you
could take, how could you say this, let's see.
14 Engineering studies, and then move the thing,
probably add somewhere to a year to the project,
15 six months to a year, easily.
Q Okay. In your judgment, would it have
16 been feasible, at that stage, to have undertaken
to relocate that unit?
17 A Feasible?
Q Feasible. Would it have been practical?
18 A Not practical. Feasible, probably.
Practical, no.
19 Q After that meeting in 1993 that you've
just described, were any, what steps were taken to
20 control or reduce the sound from the unit, if you
recall?
21 A As I recall, we started with wooden
fences. Then, we moved into landscaping. Then, we
22 rotated the unit 90 degrees on its axis. Then, we
went into sound blanketing on the compressors. And
23 then, we went into quiet flow panel systems.
Q Now, let me direct your attention --
24 those steps that you've mentioned took place over
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1115
1 a period of time, is that not right?
A That's correct.
2 Q Okay. I'd like to direct your attention
to the summer of 1994, the following year.
3 A Okay.
Q On or about the end of June or the
4 beginning of July, did you have occasion to have
any conversations with either Mr. or Mrs.
Shelton?
5 A I know that the
Sheltons were over on the
property a couple of times, taking pictures of the
6 unit and so forth. I did see them a couple of
times.
7 Q During that period that we're talking
about, which is the June, July period of 1994, was
8 the project visited by the police?
A Yes.
9 Q Can you describe what happened then?
A Well, there were a couple of incidents of
10 noise not related to the air conditioning, and
then there was an incident when the air
11 conditioning was left on overnight, but I wasn't
present for that.
12 Q Did you have occasion, during that
summer, to visit with the Chief of Police, to meet
13 with the Chief of Police of
Wilmette?
A I did, I met with the Chief of Police to
14 find out how we could resolve this because --
Q I'm sorry, I said the wrong name. I think
15 it's
Winnetka.
A Right,
Winnetka. I met with him to find
16 out how we could resolve this to leave the unit on
so I could continue the project.
17 Q And, where was that meeting? Where did
that meeting take place?
18 A At the chief's office.
Q And, did he direct you to stop the
19 project?
A Negative. He indicated to me that it was,
20 he was only following up on a nuisance complaint,
and that it was pretty much out of his hands. He
21 has, there's nothing more he can do than to ask
everybody to go to neutral corners and go through
22 legal action, I guess.
Q Are you familiar with people named Ken
23 King and Ann
Kirshner?
A They're
Winnetka Village Officials.
24 Q During any time during that same period,
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1116
1 June, July of 1994, did you have occasion to meet
with them?
2 A Yes.
Q And, where did that take place?
3 A I met them both in the Village Hall, and
on the property.
4 Q Starting at the Village Hall, what time
of day was it?
5 A In the morning.
Q And, who was present?
6 A Myself, the Village officials that you
named, and Steve Crown.
7 Q And, what did you say, and what was said
to you?
8 MR. DIVER: I'll object as to what was
said to him, Madam Hearing Officer, as being rank
9 hearsay.
Q What did you say to them -- yes, what did
10 you say to them?
A Well, the meeting was to start the
11 groundwork for the resolution of this whole
problem. So, exactly what was said verbatim, I do
12 not remember.
Q And, you said that later, I think you
13 said later, there was, that meeting was adjourned
and reconvened on the site?
14 A That's correct.
Q And, at that point, was the air
15 conditioner, the Crown air conditioner unit,
operating?
16 A Yes, it was turned on for that meeting,
everybody listened to it. This was before the
17 quiet flow panels, as I recall. It may have even
been before the fence, but I'm not sure, to be
18 honest with you.
Q All right. In July or in approximately
19 that period, did you have occasion to meet Al
Shiner?
20 A Yes, I met Mr. Shiner.
Q Could you tell us where that meeting took
21 place?
A On the property, on the job site.
22 Q Do you know approximately what time of
day?
23 A It was before lunch, as I recall.
Q And at that, what was the subject of that
24 meeting?
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1117
1 A He was there, as a sound engineer, to
take some readings and come up with some kind of
2 solution.
Q And, were some solutions arrived at
3 during the course of, or as a result of that
meeting?
4 A I think that's how we arrived at the
quiet flow panel introduction.
5 Q Thereafter, did you have another occasion
to meet with the
Sheltons or visit the
Sheltons?
6 A Steve Crown and I went over to see the
Sheltons early one morning. It was a warm summer
7 morning, and we walked around the property line,
and over to the
Shelton's side door. And, I do
8 remember that, curiously enough, while you were
standing there and the
Shelton's air conditioning
9 unit was on, you really couldn't hear the Crown
air conditioning unit, which was on. But,
Susi
10
Shelton came to the door, and Steve and I assured
her that we were taking all steps and making haste
11 to resolve the problem.
Q Okay. An air conditioning unit that you
12 mentioned, where was it located on the
Shelton
house, on or near?
13 A The one that I recall was on the ground,
just to the west of their side door.
14 Q Now, thereafter, you referred to quiet
flow panels. Could you tell me what those are?
15 A They are --
MR. DIVER: Objection, no foundation.
16 MR. ELLEDGE: It was in his testimony.
I'm asking him to describe his own testimony.
17 THE COURT: Overruled.
A They're a steel, they're steel insulated
18 panels to direct noise.
Q What, if anything, was done after the
19 meeting you just described with Mrs.
Shelton, with
regard to sound attenuation in relation to the
20 unit, the Crown unit?
A What was done, I'm sorry?
21 Q Yes. Was anything constructed?
A Well, we went through a lot of different
22 phases or steps to try and determine which would
be the best approach to solve the problem.
23 MR. DIVER: Objection, Madam Hearing
Officer, to further use of the word "we". I ask
24 that this witness be instructed to testify about
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1118
1 what he experienced.
A When I say "we", I'm talking about myself
2 and my crew of carpenters. They work directly for
me. We constructed plywood fences up to 8 feet
3 tall, took sound readings at various locations on
the property, changed the height of the plywood
4 fences. We were trying to enclose the noise and
direct it upward, and see what that did for the
5 noise level at the property line, and close to the
unit.
6 BY MR. ELLEDGE:
Q Tell me about, did you employ the quiet
7 flow panels that you've just mentioned?
A Yes, they were directed to be installed
8 by Climate Temp.
Q What did they, could you describe the
9 structure that was built?
A Well, to install the quiet flow panels,
10 we had to extend the concrete base on the unit,
and the quiet flow panels are bolted directly to
11 the concrete base. And, it's a very tight,
overlapping system that has access doors that you
12 can disassemble to get to the unit for
maintenance.
13 Q Okay. Now, after this structure was
constructed, was the Crown air conditioning unit
14 then operating?
A Yes, it was.
15 Q Did that enclosure have any noticeable
impact, as far as you're concerned, on the sound
16 coming from the unit?
A Well, I thought it did, yes. I thought
17 it was much quieter. But, that wasn't the end of
it. Then, we went to larger --
18 MR. DIVER: There's no question pending,
Madam Hearing Officer.
19 A Sorry, pardon me.
BY MR. DIVER:
20 Q What further steps were taken after that?
A We went to different vegetation. We put
21 up 16 foot arbor
vitaes, stacked them very closely
around the unit, and went to, we tried sound
22 blankets on the compressors, as I recall.
Q During the course of this two year
23 period, were you working closely with Mr. Crown?
A Absolutely, I reported to him on a daily
24 basis.
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1119
1 Q And, were you in a position to observe
what his response was to the various noise
2 complaints?
A Yes, he was very concerned about it, and
3 had made a statement to me, more than once, that
he wanted to move into this neighborhood with no
4 disturbance to the residents or his new neighbors
around him, so that his family could move in, you
5 know, congenially.
Q In your judgment, did he take this
6 problem seriously?
A Absolutely. I was directed to take all
7 steps and push all subcontractors in a high gear
effort to resolve this problem.
8 MR. ELLEDGE: I have no further
questions.
9 THE COURT: Do we have cross-examination?
MR. DIVER: Yes, Madam Hearing Officer.
10 CROSS EXAMINATION
BY MR. DIVER:
11 Q Mr.
Keller, you spoke just a moment ago
about many things. But, one of the things you
12 spoke about was an event involving the man held
placement of plywood boards around the
chiller
13 unit to determine, presumably, what the effect of
various heights of plywood boards would be on
14 sound experienced outside the boards, is that
correct?
15 A No, sir, that's not correct. They were
not man held.
16 Q Oh, they were put in place?
A They were fixed, they were stationary. We
17 built framework and affixed them to the framework.
Q Good. How many times did you do that?
18 A Three times, as I recall.
Q When was the first time that you did
19 that?
A Dates are going to be tough here. I'm not
20 going to be able to quote dates on this.
Q You've been telling us about an awful lot
21 so far. If you can do that with precision --
A I looked up the date I started the job,
22 and the date I quit the job, those you can take as
fact. The rest of it's my best recollection. We
23 have a noise problem here, and it was shortly
after that noise problem that we started this
24 panel system because -- actually, now that you
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1120
1 mention it, it was probably in
conjucntion with
Mr. Shiner. Because quiet flow, that's what the
2 quiet flow system does, it directs the noise and
air velocity up.
3 Q That's your understanding of what the
quiet flow system does, that it directs sound up
4 through the
chiller unit?
A Not through the
chiller unit, no.
5 Q Through what?
A Sound escapes from the
chiller unit. It
6 directs sound encased in the quiet flow system,
up.
7 Q Up through what?
A Through nothing, there's no roof on it.
8 Q What's at the top of the
chiller unit?
A Fans.
9 Q Okay. The fans open to the atmosphere,
correct?
10 A That's correct.
Q So, the sound goes through the fan
11 openings? No?
A I would have to say the air velocity goes
12 through, at least --
Q What does the quiet flow system do with
13 respect to the sound going through the fan
openings?
14 A The quiet flow system is not tall enough
to, I think, do much of anything with the air
15 going through.
Q Okay. Let's get back to the
16 experimentation with the plywood boards. I had
asked you when, relative to your first hearing
17 about a noise complaint, when, relative to that
event, did you first experiment with placement of
18 various sizes of plywood board around the
chiller
unit to see what their effect would be on sound?
19 A Well, I think that the first thing that
was done was Mid/
Res was notified of the sound
20 problem. And, at some point, Mid/
Res probaby
directed me or suggested that we try this as an
21 experiment to see if panels would do any good.
Q Okay. Do you recall that being fairly
22 close upon the heels of your being told of a noise
complaint?
23 A Well, it had to be, because there was no
fence around it, and we had put a fence around it.
24 We put vegetation around it. And so, these things
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1121
1 were not there, in our way.
Q When you say you put a fence, you put
2 some kind of fence around it later on?
A Stockade fence, that's correct.
3 Q This would be a cedar stockade fence,
about six and a half feet tall?
4 A Yes.
Q Part of the original design of the
5
condensor unit was to screen it visually from the
residents of the house, as well as others?
6 A And, to muffle the sounds, I'm sure.
Q Was it also intended to muffle the sound?
7 A Sure, I would think so.
Q Do you recall whether or not the fence,
8 as designed, had any insulation on the interior
portion so of it?
9 A No.
Q It did not have?
10 A No.
Q Okay. Coming back, again, to the timing
11 of the first incident with the placement of the
plywood boards. I asked you whether that was
12 fairly soon on following the complaint of noise
that you knew about. I'm going to show you a
13 document, which has been previously identified as
Exhibit No. 78, and admitted into evidence, being
14 a letter from Jack
Doshi to you dated September
21, 1993. Ask you to look at that, if you would.
15 A Okay.
Q Do you recall getting this letter?
16 A I recall it. I got letters, a lot of
letters from Jack.
17 Q I'm sure you did. I'm sure you did. You
recall him telling you he was going to be about
18 the business of renting some sound measuring
equipment for the purpose of measuring the sound
19 which was
eminating from the air conditioning
unit. You recall his doing that?
20 A I know that Mid/
Res was going to do that,
yes, sir.
21 Q And, that he reported that to you,
correct? And, the date here is September 21,
22 1993. When, relative to that date, would you have
been advised first of a complaint by the
Sheltons
23 of noise from this system? When, prior to this
particular communication about measuring sound,
24 would you have been told the
Sheltons complained?
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1122
1 A I don't know that, I don't know what the
answer is to that question, to be honest with you.
2 I don't know the date of the original complaint.
Q Would it have been this month, the month
3 of September of 1993?
A You got me.
4 Q Okay. Do you recall when the unit was
actually installed and fired up; that is, when it
5 first began operating?
A No, I don't recall the exact date.
6 Q Was it much before September of 1993?
A No, I don't think it was much before
7 that. But, I know it was hot and muggy, so we're
on the right track. I mean, it was a necessity of
8 having the unit to, you know --
Q Do you recall actually being involved in
9 a sound measurement event at the
chiller unit
shortly after you received this letter from Mr.
10
Doshi in September of 1993?
A I was present when Mid/
Res came out and
11 took sound measurements on the property.
Q Do you recall participating in the sound
12 measurements at all?
A I did not. I was just, I was running the
13 job at the time. I was in and out of that. I had
carpenters, you know, if we were raising and
14 lowering the wood at that time, we started with
four foot barricades and we went up to 8 foot
15 barricades. So, I was directing the carpenters.
Q Do you recall this taking a couple of
16 days to do; that is, that the experimentation with
four foot, six foot, and eight foot panels
17 occurred over a two-day period?
A No, I don't. I recall one day. I don't
18 recall a couple of days, but it's possible, I
supposed.
19 Q I'm going to show you a document which
has previously been identified -- marked, excuse
20 me, as Exhibit No. 81 and ask you to look at that,
if you would, and tell me whether or not the
21 markings on that diagram are, in any respect, in
your hand?
22 A Yes.
Q Are those numbers in your hand?
23 A Some of them look like they are, but
these are not my 8's.
24 Q What about the notation?
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1123
1 A I think these, some of these side numbers
are, you know, but I don't make a 8 like this.
2 Somebody else made some of these notations.
Q You also see a fax note on that diagram?
3 A Yes, I do. Yes.
Q Indicating October 6th, 1993?
4 A Yes.
Q Do you recall faxing that document to
5 somebody on or about October 6th, 1993?
A I may have faxed it, yes.
6 Q Do you recall faxing it to somebody?
A Oh, certainly, I probably did. We had a
7 fax in the office.
Q Who did you fax it to?
8 A I probably would have faxed this to
Mid/
Res and faxed it to Steve Crown.
9 Q Okay.
A All parties concerned.
10 Q Okay. Do you recall actually
participating in the reading of the noise
11 measuring equipment; that is, actually looking at
the numbers that were shown on the noise measuring
12 equipment, and then recording them in these
columns?
13 A No, I think the closest I got was with a
gentleman named Harry
Akers. And, I was standing
14 next to him, and he was holding a unit.
Q Do any of these numbers appear to be
15 numbers that you entered on the actual diagram?
A Well, that's pretty tough to say. You
16 know, some of them could be my numbers. I mean, I
probably was standing there and writing down what
17 they told me, you know. I was helping out in any
way I could.
18 Q Do you remember a gentleman by the name
of John Gazelle being present?
19 A Yes, he was the head mechanic for Mid/
Res
that installed the system.
20 Q Do you recall ever having seen what has
been previously marked as Exhibit 80 C?
21 A I've seen this.
MR. DIVER: Okay. Madam Hearing Officer,
22 before I forget, let me move the introduction of
Exhibit No. 81 into evidence.
23 MR. CARSON: I just don't recall what
other foundation there was. Was there any other
24 testimony regarding Exhibit No. 81, other than
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1124
1 what we just heard? If that's all, I don't
recall --
2 MR. DIVER: Other than the fact that a
less clear copy of it appears in John Gazelle's
3 testimony as it's being admitted, Exhibit No. 80
B.
4 THE COURT: Yes, Exhibit No. 81 has not,
per se, been introduced into evidence
untiltoday.
5 MR. DIVER: This is Exhibit 80 B and this
is, apparently --
6 THE COURT: Exhibit 80 Sub B was entered
into evidence for a limited purpose on July 12th.
7 MR. DIVER: We now have the author of at
least a large part of this document, and a clearer
8 copy of it, also indicating the date of it, and
indicating the transmission of it. And, that's why
9 I'm moving for its admission, Madam Hearing
Officer, as a separate document.
10 MR. CARSON: I don't believe these are
the same numbers that are in there, or the same
11 document. If you look here, under six foot fence,
four sides, it looks like a 58. And here, it's a
12 58.3. And, it appears to be in different hand.
MR. DIVER: Okay. Let me ask this
13 witness -- you're right, it does.
MR. CARSON: Yes, no, they are.
14 THE COURT: I have a related question.
Mr.
Keller, are you the author of this document?
15 A I set up the format. I set up the grid
pattern and --
16 THE COURT: Who would have filled it in?
A Probably the gentlemen that were doing
17 the sound tests.
THE COURT: And, who were those
18 gentlemen?
A As I recall, it was Harry
Akers and John
19 Gazelle. It was Mid/Res. It was their team.
THE COURT: Okay. Proceed,
counsellor.
20 BY MR. DIVER:
Q Showing you now what's been previously
21 marked as Exhibit No. 80 B. Looking at the
numbers on that document, do those numbers appear
22 to be in your hand at all?
A No.
23 Q Okay. So, those numbers aren't in your
hand?
24 A I don't think so, no, no, sir.
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1125
1 Q But, you believe that the numbers on
Exhibit No. 81 --
2 A I think that the perimeter, actually, not
even the perimeter. I don't make 8's like this.
3 These are not my 8's, but I did write property
line, front door, adjoining property, I set up the
4 grid pattern and was trying to assist, yes.
Q Do you recall when you actually did that
5 on site?
A Well, let's shoot for on or about October
6 6th.
Q Okay.
7 MR. DIVER: I would move, again, Madam
Hearing Officer, that this document be admitted as
8 being information that had been transmitted, by
this particular witness, to Mid/
Res and to Steven
9 Crown with respect to the noise readings that
occurred on or about October 6th or 7th, according
10 to other witnesses.
MR. CARSON: We're objecting to this
11 because there's no foundation with respect to the
measurement. Your Honor may recall the, at least
12 one of the gentlemen that was operating the
equipment was here, and he didn't know what it
13 was, how to calibrate it, had never done it
before. The measurements themselves, there's just
14 no foundation for it.
MR. DIVER: Madam
Heairng Officer, if
15 that's the objection, similarly, to the other
document, I'll restrict its utilization to being
16 information that was communicated, not for the
proof of establishing that these are, indeed,
17 proper numbers read by an IPCB proper piece of
equipment in a proper protocol, but that these
18 were numbers that were communicated by this
witness to the Respondent.
19 THE COURT: To the Respondent?
MR. DIVER: To Steven Crown.
20 THE COURT: Mr.
Keller, was that your
testimony?
21 A Well, I mean, I set up the grid pattern
and I was assisting Mid/
Res in taking the sound
22 readings. What I know of sound readings is
nothing. But, I was trying to assist, yes.
23 THE COURT: Who did you send it to?
A I probably -- well, obviously, it was on
24 file in my office. And, I would assume that I
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1126
1 sent it to Mid/
Res probably to -- well, I mean,
that was the only company that was really involved
2 at the time.
THE COURT: Would you also have sent it
3 to Mr. Crown?
A Well, it would be in my office, if I
4 didn't send it to him, it's in my office. So,
he's privy to everything that's there. But, I
5 mean, whether I sent it to Steve's office, I don't
know. Actually, at that point in time, I really
6 think it was a Mid/
Res issue because we were
looking to Mid/
Res to quiet this thing. They
7 installed it.
THE COURT: Okay. Then, that I think my
8 question clarifies your limitation for its
introduction. Is there an objection to that, to
9 the introduction of it as an exhibit, with that
limitation?
10 MR. CARSON: Yes, we object to it because
there's no
fondation for the numbers themselves.
11 And, without any foundation for the numbers
themselves, the document doesn't have any meaning.
12 It's
unuseable. I don't think it's, there's a
sufficient foundation laid for it. We don't even
13 know how this document was created.
THE COURT: The objection is overruled,
14 and the document will be entered into evidence.
The Board will determine the weight of the
15 evidence.
BY MR. DIVER:
16 Q Ask you now to look at Exhibit No. 80 C,
and ask you if you've ever seen that drawing
17 before?
A Yes, I have.
18 Q Okay. Any part of that drawing in your
hand?
19 A No.
Q Okay. Do you recall having seen that
20 drawing at or about the time that it was made?
A Well, I've seen the drawing. I don't know
21 exactly when I saw it, but I have seen it.
Q Okay. Were you present at the time that
22 gentleman by the name of John Gazelle prepared it?
A Well, I was on the job site.
23 Q Okay. Do you recall seeing it at the time
that it was being prepared during the tests for
24 noise, on or about October 7th of 1993?
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1127
1 A No. I wasn't, I didn't hang around and
take part in this because, number one, I don't
2 know anything about it. And, number two, it's a
18,000 square foot project, and I was very busy.
3 Q No, I understand that. But, my question
was --
4 A I knew it was going on, I know that they
were doing it.
5 Q And, they were using your carpenters for
the purpose of putting up the boards?
6 A That's correct.
Q And, did somebody report to you as to
7 what the consequence of, in sound testing was?
A Well, even if they had told me the
8 decibel numbers, I wouldn't know whether it was
good, bad, or indifferent. I do recall the noise
9 from overhead jets, and we're right under a
traffic pattern at that point. And, I thought that
10 that was something that should be taken into
account.
11 Q But, did
sombody report to you the
consequences of the test, other than in decibels,
12 even in terms of the amount of noise from the
equipment, or the effect of the placement of the
13 plywood boards?
A I'm sure somebody told me that it was a
14 couple of points up, down, or around, yes, sir.
Q Do you recall what it was that they
15 reported to you?
A No, I did not.
16 Q Is it your recollection that this noise
measurement occurred prior to the time that you
17 met with Mr. and Mrs.
Shelton for the first time
at their doorstep?
18 A I didn't meet at their doorstep. I only
met Mrs.
Shelton at the doorstep with Steve Crown.
19 Q Okay. Where did you meet Mr. and Mrs.
Shelton on or about October 11th or just before
20 their October 11th letter?
A They came over to the property and were
21 looking at the unit, and I came out and met them.
Q Okay. Is it your recollection that prior
22 to the time that you met them, that these noise
measurements had already been taken?
23 A No, sir, I don't think so.
Q Your recollection is that the noise
24 measurements occurred after you met with them?
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1128
1 A Well, I guess I can't answer that
question, I'm sorry.
2 Q Do you recall that the noise measurements
occurred before the October 11th, 1993 letter that
3 kind of began your testimony?
A I'm sorry, I can't answer, I don't know.
4 Q Do you recall ever reporting any to Mr.
and Mrs. Crown in any of these conversations,
5 October of 1993, the consequences of the noise
testing that was done?
6 A The contents?
Q The consequences, what was learned from
7 the noise testing?
A No. I'm sure that Mid/
Res was reporting
8 directly --
Q To the
Sheltons?
9 A No, to Mr. Crown.
Q All right. Did you tell Mr. and Mrs.
10
Shelton, at any time during October of 1993, in
any of your meetings that you may have had with
11 them, or conversations, about the fact that noise
testing had been done early in the month of
12 October?
A If they had asked me, I probably would
13 have told them I don't recall.
Q Do you recall offering that information
14 to them?
A I only met with them a couple of times.
15 I don't know that noise testing came up in
conversation.
16 Q Okay. You recall the actual
configuration of the plywood boards around the
17
chiller unit, where they were with respect to the
various faces of the
chiller itself?
18 A Yes. All four sides.
Q Okay. At about what distance were these
19 plywood boards located from the actual respective
chiller faces?
20 A It would have been just over the edge of
the concrete pad, which puts them at roughly
21 inside two feet off the
chiller.
Q Now, the location that had been
22 established for erecting those plywood boards,
that was not the location, was it, for the fence
23 that was to go around the unit?
A The fence was basically far enough away
24 from the
chiller so the service man could get to
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1129
1 it on 360 degrees.
Q Right. But, my recollection -- strike
2 that -- was the actual proposed fence that was
supposed to go around the unit, further away from
3 the
chiller faces than the location where you put
the plywood boards?
4 A Yes, probably by about a foot or so.
Q Is it your understanding, from the
5 experimentation with the plywood boards, that this
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1230
1 was their intention, to actually erect some kind
of pen around the system to quiet it?
2 A Well, that's what I assumed. What we
were doing was trying to figure out a way to quiet
3 it, yes.
Q When was a pen ultimately put around the
4 facility; that is, a pen whose function it was to
actually attenuate the sound?
5 A Quiet flow system.
Q Yes.
6 A Probably the following, I'm going to
guess here the following spring or --
7 Q Would the spring of 1995 ring a bell?
A I'm trying to think if we assembled that
8 during the winter or not, but I'm sorry, I can't
tell you.
9 Q Do you recall whether the quite flow
system was actually installed after the Shiner
10 test of the sound from this system in July of
1994?
11 A Well, that was -- I'm sorry, I can't
recall. I know that the whole procedure was long
12 and drawn out. Answers come very slowly.
Q Okay. Would you consider it to be an
13 incorrect statement in the fall of 1993, that's
September, October, November of 1993, an incorrect
14 statement to say that the air conditioning system
was not necessary because there was no millwork to
15 preserve and protect?
A Yes, I think that's incorrect.
16 Q Is there a possibility that you're
incorrect on your attention of the years in which
17 the millwork became an issue. Is it possible that
the millwork issue is a 1994 summer issue and not
18 a 1993 issue?
A The only thing I can remember, the one
19 thing I do remember is the fact that I needed the
air conditioning system, and when we fired it up,
20 I needed it at that point. That much, I remember.
See, the floors go in first. So, before the
21 millwork goes in, in certain rooms like the family
room, which is wall-to-wall millwork, and the
22 kitchen, which is wall-to-wall cabinets, the
floors had to go down first. And, to get the
23 moisture out of the building, so we could put the
floors in, we needed the air conditioning system.
24 And, in fact, we didn't have it, and we put it
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1231
1 down and the floors did buckle. So, I do remember
that by the time the air conditioning system went
2 on, I was in desperate need of it.
Q Do you recall that buckling issue
3 occurring in the late spring, early summer of
1994?
4 A No, earlier than that, I believe.
Q Showing you now what's an unmarked
5 document, entitled Draft, with a date July 8th,
1994. That, again, it says the following is from
6 Pete
Keller. I'd like you to look at this
document, and tell me if that document was first
7 prepared by you.
A Well, it wasn't prepared by me, no.
8 Q All right. Would you review the
information that's contained in it, and tell me if
9 it refreshes your recollection as to the timing of
the issue with the floor buckling?
10 A My recollection on dates is pretty vague,
so it sounds to me like the timing could be right.
11 It's summertime. The floor did buckle.
Q But, in 1994, not 1993, is that your
12 recollection now?
A All right, that's fine.
13 Q Okay. Were you responsible for the
landscaping in the sense that, responsible for the
14 whole job? Was landscaping one of the
responsibilities that you had as the general
15 contractor?
A No.
16 Q Who was responsible for that, as best you
understand?
17 A Scott Byron.
Q And, to whom did Mr. Byron report?
18 A Steve Crown.
Q Okay. So, he did not report to or through
19 you?
A No.
20 Q Do you, then, know what Scott
Byron's
plan was for providing a visual screen around the
21
chiller unit in October of 1993?
A I'd seen a couple of renditions of what
22 was going on
on the paper.
Q Okay. In October of 1992, what was your
23 recollection, or what's your recollection that the
design by Byron was for landscaping activities
24 around the
chiller unit?
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1232
1 A Actually, I don't think, in October of
1993, I had anything to do with it, or knew
2 anything of it, in that early stage. I had just
started that spring, and that was the last thing
3 on my mind, at that point, believe me.
Q When do you recall first becoming
4 involved with the landscaping aspect of this
development?
5 A I never became involved in it.
Q When did you first become cognizant of
6 what it was that the landscapers were doing or
planning? When, in the process of your
7 involvement?
A Somewhere during the course of my job,
8 what would you like?
Q A time.
9 A
A time.
Q
Uh huh.
10 A Somewhere between 7:00 and 3:30.
Q Okay. I'm talking about now, a date.
11 A Well, I'm sorry, I mean, I had seen -- I
was not invited into the landscaping. But, did I
12 see plans, I may have glanced at some plans, yes.
It was not in the scope of my contract.
13 Q When you first recall seeing a plan, with
respect to the nature of the landscaping around
14 the
condensor unit, what was that plan?
A I don't know that I saw a plan, I just, I
15 was told that we were going to stand 16 foot arbor
vitaes around, and also told that we were going to
16 stand 16 foot arbor
vitaes on the north property
line, full length of the property line, which we
17 did.
Q Do you have any knowledge whether or not
18 that was a part of the plan for landscaping, prior
to the noise complaint from the
Sheltons?
19 A I was under the impression it was a
direct result.
20 Q Who do you recall being the source of the
suggestion that a planting of arbor vitae would
21 diminish sound being experienced on the
Shelton
property?
22 A I don't recall anybody saying that that
would diminish sound. I don't recall that.
23 Q When do you first recall having a --
strike that -- when do you first recall having
24 knowledge of a proposed fence as opposed to an
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1233
1 acoustical enclosure, some kind of a fence around
the
chiller unit?
2 A The fence around the
chiller unit and the
fence on the property line went hand-in-hand.
3 Q Okay. Had there been a fence proposed
for the
chiller unit before the sound, before the
4 noise complaint by the
Sheltons?
A I think there was, to screen it so you
5 wouldn't see it.
Q Right. And, was there any change made to
6 that fence after the noise complaint?
A Yes. We put a stockade fence the full
7 length of the north property line.
Q Other than the property line fence, I'm
8 talking about the fence around the
chiller unit
itself, was there any change in it from what had
9 been proposed as a screen, to something with
respect to noise control?
10 A No, not to my recollection.
Q Now, I'm showing you now what have
11 previously been marked and admitted, Exhibits 101
and 27, being a document from Jack
Doshi to Chuck
12
Himes with a c.c. to you. And, an attachment to
that fax being a Jack
Doshi diagram of 10-5-92.
13 The first being Exhibit No. 101, the second being
Exhibit No. 7. I ask if you would look at that,
14 please. Tell me whether or not you recall
receiving those two documents.
15 A Okay. I think I remember these.
Q Okay.
16 A Yes.
Q Asking you to look at what has been
17 marked as Exhibit No. 27 first, Item 2 at the
bottom.
18 A
Uh huh.
Q That asks the question, will there be any
19 insulation in this wall or fence? Do you recall
reading that sentence at or about the time you
20 received it?
A Probably, yes, sir.
21 Q Do you recall whether there was to be any
insulation in that fence at that time?
22 A Not to my knowledge.
Q You understood
insultation to be sound
23 insulation?
A Sound attenuating material of some kind.
24 Q Thank you. I'm showing you what has been
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1234
1 previously marked and admitted as Exhibit No. 103,
being a memo from Jack
Doshi to you with an
2 attached diagram. And then, Exhibit No. 104, which
has been admitted. And, I'll ask you to look at
3 those, if you would.
A Okay.
4 Q Do you recall receiving the memo from Mr.
Doshi with the diagram?
5 A Yes, this was in regard to turning the
unit 90 degrees.
6 Q Right, right. But, you recall receiving
that memo from him, and the diagram?
7 A Well, I see it now, yes.
Q Let's look at Exhibit No. 104. Any of
8 your handwriting on that document?
A The dimensions, he asked me for
9 dimensions.
Q Okay. And, dimension were written down by
10 you, and transmitted back by fax to Mr.
Doshi,
correct?
11 A I think so, yes, sir.
Q Okay. And, would you have any reason to
12 have put the wrong dimensions down on this
document?
13 A No.
Q Showing you now what's been admitted as
14 Exhibit No. 31, purporting to be a letter from
Gary
Elfering to you dated March 7th, 1994,
15 concerning some proposed changes to the HVAC
system.
16 A Okay.
Q Asking you if you recall receiving that
17 document?
A I recall receiving it.
18 Q Do you recall receiving a proposal with
respect to changes to the HVAC system necessitated
19 by the
Shelton noise complaint?
A Yes -- say it again, sir.
20 (WHEREUPON, the record was read by
the Court Reporter.)
21 A I remember that Mid/
Res was trying to
solve the noise problem.
22 Q Look at the proposals that are indicated
there.
23 A I see it, sound blanketing, which burned
up the compressors. I remember that, yes.
24 Q When do you recall the sound blanketing
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1235
1 was put on, after this proposal to you?
A I can't tell you, I'm sorry, I can't tell
2 you. The job spanned three years. I'm not going
to be able to tell you when these dates were or
3 what, you know. I remember the problem, and I
remember the steps we took to alleviate the
4 problem. I know that the blanketing, I believe,
was put on -- well, it didn't take long to burn up
5 the compressor. The blanketing smothered the
compressor. It overheated and burned up, I
6 remember that.
Q So, it was removed?
7 A It was, the blanketing, correct. It had
to be.
8 Q That would have been in 1994?
A Here we go again.
9 Q If you don't recall, all you have to say
is you don't recall.
10 A Okay. I don't recall, sorry.
Q I'm not here to make you think of things.
11 MR. CARSON: Ms.
Edvenson, may --
THE COURT: I'd like to go off the record
12 for a five minute recess.
(WHEREUPON, a short recess was
13 taken.)
AFTER RECESS
14 THE COURT: We've had our afternoon
break, and we'll go back on the record and
15 continue the cross-examination of Mr.
Keller.
BY MR. DIVER:
16 Q Mr.
Keller, do you recall that the sound
insulation and the compressor blanket were
17 actually installed in the
chiller unit itself, at
the time of the sound test in early October of
18 1993?
A I do not recall the exact timing. I do
19 recall the product and seeing the product
installed. I don't recall the exact time, whether
20 it was before the test or after the test, I'm
sorry.
21 Q My question is whether you recall Mid/
Res
telling you, before they sent you this proposal
22 for work to be done in March of 1994, whether they
told you before that, March of 1994, that they had
23 seven months earlier, already installed the
insulation in the unit?
24 A No, I don't recall that.
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1236
1 Q Do you recall that being the fact, that
they had installed the insulation in this
chiller
2 unit -- not 7 months, let's see, 5 months before
this letter to you?
3 A I'm sorry, no, I do not recall one way or
the other.
4 Q Okay. Showing you now what has been
previously marked as Exhibit No. 68 and admitted
5 as such. Ask you to look at that document, if you
would. Ask you first, if the first page of that
6 document is in your hand?
A Yes, it is.
7 Q And, this would be a document that you
sent to Mid/
Res on July 12th, 1994?
8 A Right.
Q Do you recall this being on the day of or
9 immediately after a
metting where Brad
Mautner was
present and yourself, to discuss a solution to the
10 noise problem?
A There was a meeting, and it was about the
11 noise, and this was a, this was my rendition of
how to solve it.
12 Q All right. Was this particular rendition,
this diagram, something that was the subject of
13 discussion, if not as a diagram, as a concept, at
that meeting?
14 A Yes, it was discussed, yes.
Q All right. And, part of that concept
15 involved, as you indicate here, on Page 1, that
you're shooting for a full roof cover, less the
16
chiller area, correct?
A That's correct.
17 Q Okay. I'm showing you now what has been
previously marked as Exhibit No. 34, being a
18 letter from Alan Shiner to David
Shelton on which
you're shown as c.c. of the same date, July 12,
19 1994. Ask you to look at the letter and at the
diagram that's attached to it.
20 A Okay.
Q Ask you to compare the diagram that I've
21 shown you in Exhibit No. 68 with the diagram in
Exhibit No. 34.
22 A Okay.
Q Are there any changes, are there any
23 differences in the two documents?
A Acoustical baffles, fiberglass lining,
24 sound, the sound bats were there, but there are
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1237
1 some additional sound bats, I see those.
Q All right. You see over the three fans
2 on Exhibit No. 34 an indication of acoustical
baffles, correct?
3 A Yes.
Q Was it your understanding, at the meeting
4 with Mr.
Mautner, that the subject of putting
acoustical baffles over the fans themselves was a
5 discussion item?
A Yes.
6 Q Okay. That over the rest of the
chiller
unit, which is described as the area called "flat"
7 on your diagram, the rest of that was to be a
solid cover, is that correct?
8 A Yes, that was my idea.
Q Was that shared by anybody else at the
9 meeting?
A Well, I was shot down on it because of
10 breathing capacity for the unit.
Q You were shot down, on this day, on this
11 document?
A No -- well, no. Shortly after I drew
12 this, I was told that, you know, the unit is going
to choke itself off. It's not going to have
13 enough breathing capacity.
Q And, who told you that?
14 A I don't know if it was Gary
Elfering or
Harry
Akers or somebody at Mid/Res. They just
15 thought it wasn't such a good idea.
Q What about the sound bats that are shown
16 on Exhibit No. 34 that are not shown on the roof
line of your Exhibit No. 68? Do you recall that
17 those sound bats on the roof line were a
discussion item at the meeting with Mr.
Mautner?
18 A Sound attenuating material inside the
structure was a discussion.
19 Q Right. What about sound attenuation
material in a rooftop structure?
20 A Well, obviously, they added it.
Q All right. But, was that something that
21 was discussed at the meeting that you had with Mr.
Mautner, in which you discussed solutions to the
22 problem?
A No, I don't think it was discussed
23 originally, or I probably would have drawn it on
here. It looks like it was added after the fact.
24 Q All right. The two documents are dated
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1238
1 the same date, July 12th, am I correct?
A They are, yes.
2 Q The difference being one is from you and
one is from Mr. Shiner, correct?
3 A Okay.
Q When you received Mr. Shiner's diagram,
4 did you call him and tell him hey, those weren't
things that we discussed, those additions he made?
5 A No, he's the engineer.
Q And, your testimony is, as best you
6 recall it, you don't know who it was with Mid/
Res
who shot down the idea of the rooftop cover, is
7 that correct?
A I just remember somebody telling me that
8 this unit has to breathe, you know, and we're
going to need more air movement.
9 Q Do you recall when, relative to this
discussion of July 12, 1994, that communication
10 was made to you, even if you don't remember who
did it?
11 A Well, I mean, I drew it with the best of
intention, thinking that would be the way to
12 enclose the unit and make it quieter. And,
obviously, we didn't build that because I'm not an
13 engineer, and it wasn't going to work, I guess.
Q Was a rooftop unit discussed in the July
14 11th or 12th meeting?
A Rooftop, on the top of the house?
15 Q Rooftop, on the top of the
chiller unit,
some kind of housing over the top.
16 A Oh, baffling.
Q Baffling.
17 A Yes, baffling was discussed, that's
correct.
18 Q Was there a
concensus, among the people
that were there, that that was something that
19 ought to be tried?
A No. As far as I remember, the
concensus
20 was that you would slow the flow of air down.
Q At the meeting that you drew this diagram
21 in response to?
A At the time that was drawn, baffling was
22 the idea.
Q Okay.
23 A But, the follow up was that not only the
flat roof, but baffles over the fans would choke
24 the unit off.
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1239
1 Q Do you recall why the people who were
having the discussion about baffles, including
2 yourself, why there was that discussion about
having some kind of control mechanism over the
3 fans themselves?
A They were trying to quiet the wind, air
4 velocity.
Q Was there discussion, at that time, that
5 the fans were, at least at that time, the lowest
single element of the system?
6 A No, I think that low velocity noise was
the biggest concern at the time.
7 Q And, the low velocity noise was coming
from?
8 A The compressors.
Q And, how was the low velocity noise to be
9 controlled, as best you understand it?
A I think, with the, eventually, through
10 the quiet flow panels.
Q That would be the panels on the side of
11 the
chiller unit?
A Right.
12 Q And the enclosure around the sides?
A That's right.
13 Q Showing you what's been previously marked
as Exhibit No. 23, and ask if you would look at
14 that document, please, sir.
THE COURT: This is the first
15 introduction of Exhibit No. 23?
MR. DIVER: Yes. I believe it is, Madam
16 Hearing Officer.
BY MR. DIVER:
17 Q Do you recall that communication, and the
documents that are attached to it?
18 A Yes.
Q And, you actually signed it and accepted
19 it on September 9th, 1994?
A Right.
20 Q This is the cost package for the quiet
flow panels that you've described?
21 A That's correct.
MR. DIVER: Move the introduction of
22 Exhibit No. 23, your Honor.
THE COURT: Is there an objection?
23 MR. ELLEDGE: No objection.
THE COURT: It will be entered into
24 evidence. Exhibit No. 23 is entered into evidence.
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
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1 BY MR. DIVER:
Q I'm showing you what's been previously
2 marked as Exhibit No. 87 and admitted, and the
testimony being a statement dated April 11, 1995
3 from Mid/
Res, stating the cost, at that point, of
the HVAC system. The document was addressed to
4 you. Do you recall receiving the document?
A Yes, I recall this.
5 MR. DIVER: No further questions about
that.
6 BY MR. DIVER:
Q Earlier in your testimony, you talked
7 about your attendance at the site, and the fact
that there were all manner of
tradespeople
8 working; mechanical,
millworkers, stone people,
electrical people, et cetera. You recall that
9 testimony?
A Yes, sir.
10 Q Were the Crowns living in the residence
at that time?
11 A Negative.
Q Approximately how many people would be
12 working on the job site at any given time during
that period?
13 A 28 to 30, 35, around in that
neighborhood.
14 Q All right. You had given us an
expression of opinion with respect to the cost, or
15 at least the elements that would be involved in
the cost of relocating the HVAC, the
chiller unit.
16 Do you recall that testimony?
A Yes, I do.
17 MR. ELLEDGE: Object -- I'm sorry, I do
not recall him answering any question with regard
18 to cost.
MR. DIVER: It would cost a lot of money.
19 You recall saying it would cost a lot of money to
do it, it would stop the job?
20 A Well, if I don't recall, I'll say it now.
It will cost a lot of money.
21 THE COURT: I believe there was some
general testimony to that effect.
22 A Certainly, it would have cost a lot of
money.
23 BY MR. DIVER:
Q Sure. Was that opinion based upon your
24 assumption that, at the time that you talked to
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1241
1 the
Sheltons about relocation -- was it your
assumption that, at that time, you talked to the
2
Sheltons about relocation, that the millwork was
already 40% done, and the electrical was roughed
3 in and being trimmed, and that all these things
were pretty far advanced down the line?
4 A Well, the piping for the AC unit is
behind the walls. So, to change the AC unit, you
5 got to open the walls and ceiling.
Q Okay.
6 A What's the question?
Q The question is, did you assume that the
7 millwork was more than 40% done at the time that
you made your estimate as to whether it would be
8 feasible?
A I think I said 30%, didn't I?
9 Q I wrote 40, but if you said 30, I'll
accept it.
10 A Whatever, 30, 40%, we were in there.
Q What I'm trying to determine is whether
11 or not your assumptions of the level of the work,
that the place where work was, is assuming the
12 work level in the summer of 1994, as opposed to
the work level in the Fall of 1993. What I'm
13 trying to find out now is, if there's still that
possibility that when you made the assumptions
14 with respect to the efforts that would be needed
to be undertaken to relocate the air conditioner
15 to another location in October of 1993, whether
you assumed that, actually, the 1994 status of
16 development was existing?
A Well, I don't think, it really doesn't
17 have much to do with millwork. The millwork issue
is that the millwork expands and contracts, and we
18 needed to pump the moisture out of the building
unit. It takes about 8% moisture to install
19 millwork safely. It's not so much a millwork
isues, it's the fact that you have to go backwards
20 on the job because you have to stop installing
millwork, remove the ceilings, change the piping,
21 and then re-install piping and put the ceilings
back in. You can't install the millwork and do
22 heavy plastering at the same time.
Q Is it your testimony that the air
23 conditioning system was left on 24 hours a day for
an extended period during the summer of 1994,
24 essentially, to protect the millwork?
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1242
1 A That would be the reason we needed the
air conditioning on, yes, sir. It pumps the
2 moisture out of the building. It certainly wasn't
for comfort.
3 Q Because no one was living there?
A No one was living there.
4 Q Have you ever met George
Kamperman?
A I don't recall the name. I've met a lot
5 of George's, but --
Q Did anybody tell you that the purpose of
6 rotating this unit was for sound control?
A Yes, sir.
7 Q Who?
A I think it was a Mid/
Res discussion. The
8 problem was that we were trying to get the
noise -- we turned it so that the intake grills
9 would not be facing the limestone wall of the
garage, so the noise from the compressors would
10 not reflect off, directly off the
the limestone
walls, that's what it was.
11 Q But, your recollection was it was
somebody at Mid/
Res that told you that this would
12 have an effect on reducing the sound being
generated by this unit?
13 A Well, let me put it to you this way. We
did it, and only Mid/
Res would direct that. I
14 mean, I wouldn't direct it, I'm not an engineer.
Steve Crown wouldn't direct it, it wouldn't be my
15 carpenters. I mean, anything that was done with
that air conditioning unit was a direct, you know,
16 had direct bearing on whatever Mid/
Res was trying
to do to solve their own problem.
17 Q Okay. So, if the Mid/
Res people were to
say that they had no sound oriented reason for
18 changing that, you couldn't challenge that?
A Somebody directed me to do it.
19 Q No, I'm not saying you weren't directed
to do it. And, I'm not saying it wasn't done.
20 I'm trying to figure out the purpose for its being
done, that's all.
21 A Yes, my understanding was we did it
because there were louvers on that side of the
22 unit, and so that's the easiest way for the sound
of the compressors to escape the sound attenuating
23 material that had been put on the other three
sides of the unit.
24 Q Okay. You indicated that, in your
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1243
1 testimony, that from the time you heard about the
complaint of noise from the
Sheltons, you pushed
2 everyone on the job site to find a solution, is
that correct?
3 A I was directed to do that.
Q Who were you directed to do that by?
4 A Steve Crown.
Q And, who did you push and how?
5 A I pushed Mid/Res.
Q To do what?
6 A To get on the job site with sound
readings, I mean, whatever it takes, to get, you
7 know, let's get answers, let's get answers and
let's find a way to quiet this unit.
8 Q And, having directed Mid/
Res to do that,
did you ask them to report back to you as to what
9 it was they were doing?
A They were reporting back to me, yes.
10 Q And, again, I'll ask you, did they report
back to you about these sound readings?
11 A Well, I was aware of them. Did I
understand them? No, but I was aware of them.
12 Q Do you recall asking them to do them,
though?
13 A I recall that they were necessary.
That's the groundwork, I mean, what's the problem?
14 Noise. All right. How much noise do we have?
Well, let's take a reading. That's somewhere to
15 start.
Q Right. And then, from there, you make a
16 plan on the basis of what you've learned, correct?
A There were so many meetings out there on
17 that job to figure out what actions should be
taken, what action would be viable, what would be
18 worthwhile and what would not. There were a lot of
questions and answers.
19 Q Were you present on the job site on July
5th, 1994 when sound measurement readings were
20 made by Al Shiner? Was it during working hours?
A I believe it was during the afternoon.
21 If it was between 7:00 and 3:30, I was probably
there.
22 Q Do you recall, prior to that, do you
recall a sound measurement occurring, though, even
23 if you weren't there?
A I remember some sound measurements
24 occurring. I was, I made up that little chart
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1244
1 and, you know, I, at least watched for a short
time while they did some sound measurements,
2 right.
Q Was that chart that we were talking about
3 earlier, a chart that you recollect occurring at
the time that Al Shiner was there for some sound
4 measurements?
A The key player I remember is Harry
Akers.
5 Q Okay. Do you recall sound measurements
being taken in July of 1994, after the October,
6 1993 measurements by
Akers?
A No, I don't recall. It could very well
7 have been taken, but --
Q Do you recall receiving a report from
8 anyone about the fact that there were sound
measurements made in July of 1994?
9 A I don't recall.
Q Do you recall what precipitated your
10 getting together in July of 1994 with Mr.
Mautner
and Mr. Shiner to discuss solutions to a sound
11 problem?
A
A noisy compressor, noisy
chiller unit.
12 Q Okay. And, what do you understand, as of
the time that you had your meeting, what do you
13 understand had been done to this
chiller unit,
other than the
chiller unit as delivered to the
14 site, in order to quiet it?
A At this point, I can't recall whether
15 they already tried the blankets at that point or
not, you know. But, I know that the quiet flow
16 panels, you know, were installed at that point, or
that was the last thing that was done, the quiet
17 flow panels.
Q Do I assume that after March 15th, 1995,
18 you disengaged yourself from both the project and
the noise problem?
19 A That's correct.
Q You have no direct knowledge, then, of
20 any changes that have been made to the equipment
ince that day, or any sound measurements that have
21 been made since that date?
A That's correct.
22 Q Mr.
Keller, a question about the
incidents that would be involved in removing this
23 particular
chiller unit to another location in the
fall of 1993, within a month of the time that it
24 had been installed. Tell us, in particular, what
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1245
1 would have to be removed from the building, that
was already installed, in order to move that
2
chiller unit to another location on the property?
A Line sizing, the lines that run from
3 the --
Q From?
4 A -- from the fan coils that are in various
locations of the building, run towards the
5
chiller, all right. And, they're stepped in size.
So, if you step the lines in one direction, and
6 then you move the
chiller to another direction, it
becomes obvious to me that your sizing is wrong,
7 okay. So now, you have to re-size the pipes in a
different direction to handle, you know, the
8
chiller unit in another location.
Q Is the sizing inside the building larger
9 or smaller than that closer to the
chiller unit?
A I'm not an engineer, I'm not going to get
10 into this. If you need answers to those
questions, you need to talk to Mid/Res.
11 Q Okay. Did you ever talk to Mid/
Res about
what exactly would be involved in relocating this
12 equipment?
A Negative.
13 Q Did you ever prepare anything in writing
to anyone about your recommendations, whether or
14 not this equipment should be or could be
relocated?
15 A Negative, no.
Q Have you prepared a cost estimate for
16 anyone as to what it would cost to remove this
chiller unit to another location on the Crown
17 property, at this point?
A I was never directed to do that.
18 Q And, you never did it, either?
A No, not that I can recall.
19 MR. DIVER: No further questions.
THE COURT: Okay. Any redirect?
20 MR. ELLEDGE: No redirect.
THE COURT: All right. Thank you very
21 much, Mr.
Keller.
A Thank you.
22 THE COURT: Off the record for just a
moment to discuss Tom's schedule.
23 (Off the record)
THE COURT: Tomorrow, then, we'll--this
24 hearing is adjourned today, and tomorrow we'll
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1246
1 continue the hearing at 9:30 a.m. And, today's
testimony we've heard from Mr. David
Shelton,
2 we've heard from Bradley
Mautner, Robert Elfering,
and Peter
Keller. And, I have identified no issue
3 of witness credibility with respect to those
witnesses.
4 So, we'll be in recess until the
morning. Thank you.
5 (WHEREUPON, the hearing was
adjourned at 5:00 p.m. to be
6 continued on August 20, 1996 at 9:30
a.m.)
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HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1247
1 CERTIFICATION
2 I, VERNETTA MCCREE, A Certified
Shorthand Reporter doing business in the State of
3 Illinois, certify that I reported in shorthand the
testimony taken in the above-entitled matter, and
4 that this constitutes a true and accurate
transcription of my shorthand notes so taken as
5 aforesaid.
6
7
_______________________
8 VERNETTA MCCREE, CSR
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HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1263
1 BEFORE THE
ILLINOIS POLLUTION CONTROL
2 BOARD
3 IN THE MATTER OF: )
DAVID AND SUSI SHELTON, )
4 )
Complainants, )
5 )
vs. ) PCB 96-53
6 ) VOLUME 6
STEVEN AND NANCY CROWN, )
7 )
Respondents. )
8
9 REPORT OF PROCEEDINGS taken in the
10 above-entitled matter, taken before MS. JUNE
11 EDVENSON, Hearing Officer for the Illinois
12 Pollution Control Board, commencing on the 19th
13 day of August,
A.D., 1996 at the offices of the
14 Illinois Pollution Control Board, 100 W. Randolph
15 Street, Chicago, Illinois, at approximately 9:30
16 a.m.
17
18
19
20
21
22
23
24
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1264
1 PRESENT:
2
3 THE JEFFREY DIVER GROUP
4 BY: MR. JEFFREY DIVER &
5 MR. KAISER
6 For Complainants;
7
8 GOULD & RATNER
9 BY: Mr. RICHARD ELLEDGE &
10 MR. ROBERT CARSON
11 For Respondents.
12
13
14
15
16
17
18
19
20
21
22
23
24
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1265
1 I N D E X
2
3 D C RED
4
5 A. STEVEN CROWN 1266
6
7 E X H I B I T S
8
9 OFR'D REC'D
10
11 Complainants Exhibit No. 44 1344
1344
12 Respondent's Exhibit No. 7 1351
1351
13
14
15
16
17
18
19
20
21
22
23
24
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1266
1 MR. CARSON: Good morning. As our next
2 witness, as part of the Respondent's case in
3 chief, we call A. Steven Crown.
4 THE COURT: Will the witness be sworn?
5 (Witness sworn)
6 A R I E S T E V E N C R O W N,
7 after having been first duly sworn on oath,
8 deposes and testifies as follows:
9 DIRECT EXAMINATION
10 BY MR. CARSON:
11 Q State our name, please?
12 A
Arie, A-r- i-e, Steven Crown, C-r-o-w-n.
13 Q And, you're the same Steven Crown that
14 testified at the
outet of these proceedings?
15 A Yes, I am.
16 Q And, since the time that you testified at
17 the outset of these proceedings, Mr. Crown, you've
18 been here for the duration of the proceedings,
19 have you not?
20 A Yes, I have.
21 Q And, you've listened to all the other
22 testimony?
23 A Yes.
24 Q And, you've had the opportunity to review
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1267
1 all the exhibits that have been offered?
2 A For the most part, I have, yes.
3 Q Mr. Crown, you purchased the property at
4 685
Ardsley when?
5 A We closed in June of 1991.
6 Q And, what plans did you have for the
7 property at the time you purchased it, sir?
8 A The house did not conform to our space
9 needs, so we had hired Paul Constant of Constant
10 Architecture to help lay out a space plan for
11 remodel of the house. And that, I'm not sure if
12 it began before we closed. I think the ideas were
13 floating around. Some of the needs were there,
14 at least on paper. And then, after closing, got
15 into some drawings, some layouts, and ultimately
16 went into a remodel of the house. A fairly
17 significant project, as it turned out to be.
18 Q And, when did the construction on that
19 project start?
20 A The demolition began in either October,
21 November of 1991. At the time, we didn't have
22 complete sets of plans. We just had the shell
23 drawings, and we had a demolition permit that
24 allowed us to demolish one wing of the house.
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1268
1 Q And, you described it as a fairly
2 significant project, as it turned out.
3 As the project commenced and was under
4 way, did you consider possible inconvenience to
5 the neighbors that might result from the
6 construction project itself?
7 A Yes. In fact, we, one of the first
8 criteria was -- first thing we did was in the
9 selection of the contractors. We went with some
10 of the larger contractors initially; Pepper,
11 Turner,
Gerhardt-Miney,( ph) even though they
12 didn't do residential homes because we felt that
13 they would have a much better handle on a larger
14 job. We were very, we interviewed personally the
15 on-site supervisor and the general contractor who
16 would be responsible for the job. And, we wanted
17 to make sure, from the onset, that we had the
18 right personality, a responsible person, and an
19 individual that we could look to, to try and
20 maintain an orderly and efficient operation. And,
21 that was from the beginning. As the job
22
progresed, we tried to implement, or we requested
23 that it be implemented, good housekeeping
24 practices such that records were cleaned up and
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1269
1 swept, such that the job site was kept in an
2 orderly, neat fashion. And, throughout the job,
3 we took --
4 MR. DIVER: Madam Hearing Officer, again,
5 I wonder if the witness could be instructed to
6 talk about what he did as opposed to what the
7 "we", or else identify who the "we" is?
8 A I instructed all parties--
9 MR. DIVER: That would be fine.
10 THE COURT: Thank you.
11 A -- to do the following.
12 Q Before you get into the narrative, let me
13 make sure we're all on the same wavelength here.
14 Did you take steps specifically addressed toward
15 keeping the inconvenience to the neighbors at a
16 minimum?
17 A I instructed our general contractors and,
18 therefore, I instructed them to instruct the subs.
19 Q And, what steps was it that you took as
20 far as your instructions are concerned?
21 A Outside of what I would consider good
22 housekeeping practices, I, we talked about, and I
23 authorized them to install a hall road off of
24
Pelham in order not to inconvenience the neighbors
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1270
1 on
Ardsley. It provided a much more direct access
2 into the house, although it did tear up the lawn
3 and put a number of the trees at risk. It was
4 clearly a much more convenient way to get trucks
5 in and out of there without causing inconvenience
6 to the neighborhood.
7 Q With respect to the hall road, perhaps it
8 would be helpful if we looked at Exhibit No. 52.
9 MR. ELLEDGE: 51, I think it's 51 you
10 want.
11 MR. CARSON: 51, excuse me.
12 BY MR. CARSON:
13 Q This is Exhibit No. 51. And, you had
14 previously given testimony concerning this
15 particular exhibit in response to Mr. Diver's
16 questions. And, this exhibit shows the
17 configuration of the home that was to be
18 constructed, is that right?
19 A Correct.
20 Q And, it also has, since the time that you
21 testified concerning this exhibit, there have been
22 a number of markings added to it, particularly to
23 the north, which you understand show the general
24 configuration of the
Shelton home?
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1271
1 A That's my understanding.
2 Q Okay. And, using this red felt tip pen,
3 would you show, on Exhibit No. 51, where the hall
4 road was located that you just described?
5 A Well, there actually were, there were two
6 roads that came into the property. There was an
7 existing drive that came in off of
Pelham, and was
8 part of a complete driveway that was at the
9 existing house.
10 Q And, you've marked that with the felt
11 tip?
12 A That's the red with the little hash
13 markings on it. That was already in place. We kept
14 that in place until it was no longer needed. For
15 the larger trucks, we brought in a road roughly,
16 that looked like that. They had a much larger
17 turnaround area in there. But, essentially, it
18 attempted -- that tree, for example, would not be,
19 it would be slightly off of the tree. But, it
20 allowed for larger semis to come in off of
Ardsley
21 and, therefore, not have them go any further north
22 than
Pelham. It also prevented traffic from
23 coming down
Pelham and trying to get into the
24 property. Essentially, they came off of Pine onto
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1272
1
Ardsley for the short stretch onto the property,
2 and had a way of turning around and getting out,
3 and prevented any real traffic from occurring,
4 heavy traffic from occurring.
5 Q And, just for the record, you've also
6 marked with red felt tip marker, coming from south
7 to north off of
Pelham Road, this other hall road
8 that you described?
9 A It ran both ways, but, yes, it was
10 entering the property in a gradual curve coming
11 off of
Pelham.
12 Q And, this hall road, which was for the
13 larger trucks, went on the opposite side of the
14 property from the portion of the property which
15 abuts the
Shelton property, is that right?
16 A It was on the south side of the property.
17 Q And, the
Shelton property is to the
18 north?
19 A I'll put little X's in it.
20 Q Okay.
21 A The hall road. You want me to continue
22 answering?
23 Q Yes. You were describing any steps that
24 you undertook to keep inconvenience to the
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1273
1 neighbors to a minimum. Were there others?
2 A Yes. I asked that all cars be parked on
3 our property, to get them off of the roads.
4
Ardsley and Pelham are private roads, there isn't
5 much room. And, therefore, I instructed our
6 contractors to make sure that all the service
7 trucks and cars be parked on the property. And,
8 we would take the necessary, make the necessary
9 correction to the landscaping or the grass that
10 was destroyed, as it usually would have been,
11 after the job was completed. Also, later on in the
12 job, I instructed Pete
Keller to contact me
13 immediately if we had, if there were any comments,
14 complaints, or concerns from neighbors in the
15 area. I wanted to know that immediately.
16 Q Now, putting aside, for the moment, any
17 complaints or concerns regarding the air
18 conditioner unit, which was later installed, did
19 you have any complaints from neighbors, other than
20 the
Sheltons --
21 A Yes.
22 Q -- concerning the construction project?
23 A Yes, we did.
24 Q Can you give us examples of the types of
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1274
1 things that came up?
2 A There was a complaint from the
3
Alexanders, who live across the street off of
4
Pelham, concerning a transformer that was
5 installed at the, I guess it's the southeast
6 corner of our property. They didn't like the idea
7 that it was visible. So, we put shrubbery around
8 it to hide it, disguise it, and get it out of
9 view. There was a question as to some curbs that
10 had been run over by trucks, and some landscaping
11 that had been run over by vehicles. We're not the
12 only house on the block, we did not have all the
13 trucks coming down the street relating to our job.
14 There were landscaping trucks, delivery trucks,
15 there were other types of vehicles down there.
16 But, we never took issue with the neighbors. We
17 basically went out and fixed the problem, re-did
18 the landscaping, re-did the curbs. There was a
19 question of debris or litter on the streets. Art
20 Nelson had made a complaint, and he said, you
21 know, we know you're good in cleaning it up. We
22 were, we took whatever measures to remedy the
23 situation. And then, later in the project, Don
24
Rycroft,( ph) who is our then neighbor to the
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1275
1 east, and I believe
Marge Julian, more
2 specifically Don
Rycroft said that we had created
3 potholes in the street, which I found somewhat
4 suspect since, again, we weren't the only set of
5 trucks running around. There were other projects
6 going on. Nonetheless, we went out and repaired
7 the potholes, at our expense. I instructed the
8 contractor to have them repaired, at my expense.
9 Q Now, with respect to the construction
10 project, can you describe how you planned for your
11 heating and cooling needs for the new home?
12 A During the course of subcontractor
13 selection -- well, actually prior to that, we sat
14 down with our architect, Paul Constant, who has a
15 fairly substantial book of specifications for
16 heating and air conditioning requirements,
17 operational requirements, not specific equipment,
18 and he laid out an operational spec; cooling,
19 heating ranges and so forth, which were then sent
20 out to different subs, at least two subs that I'm
21 aware of that were felt that could generally
22 handle the project. One was
Althoff, and the other
23 one was Mid/Res.
24 Q And, you ultimately selected Mid/
Res?
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1276
1 A After receiving proposals from both,
2 after receiving the bids from both, after doing
3 some checking on the references and on the two
4 different companies, we had a lot better
5 information on Mid/Res. I had some personal
6 friends that had used Mid/
Res very succesfully in
7 their house renovation, and decided--and, they
8 were more, Mid/
Res was actually, as we understood
9 at the time, more geared towards residential type
10 projects or had a lot
mroe eperience with
11 residential type project. And, therefore, we chose
12 them.
13 Q And, you described the reasoning or the
14 logic underlying your selection of Mid/Res.
15 A The logic was the quality of work, the
16 experience, and the personal reference, personal
17 references we received.
18 Q Okay. At the outset of your work with
19 Mid/
Res, who was it that you were working with?
20 A I'm sorry?
21 Q Who, specifically, at Mid/
Res?
22 A At Mid/
Res, Bob Abele was the first
23 representative, I believe, A-b-e-l-e, was the
24 first representative that we were contacted by. He
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1 worked with Paul Constant. Actually, I think he
2 had communications with our architect regarding
3 the, a preliminary letter to help set up the
4 technical specifications more specifically, and
5 that then evolved into a formal proposal. There
6 were, the names I recall, Gary
Elfering was in the
7 picture at one point in time, as a representative
8 from Mid/Res. And then, ultimately after we had
9 selected them, I found out that Brad
Mautner was
10 the then President of Mid/
Res, who was a friend
11 that I had grown up with. And, he came into the
12 project and was part of the discussions.
13 Q Did you receive a recommendation from
14 Mid/
Res as to the equipment that would meet the
15 specification requirements for the home?
16 A Yes. We were given, I believe, two
17 alternatives. One was a multiple type system,
18 multiple little units. And, the second was one a
19 consolidated, stand alone unit.
20 Q And, which of those alternatives was
21 selected?
22 A The stand alone, consolidated unit.
23 Q How was it that that selection process
24 went? How was the decision made to go with the
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1 single integrated unit?
2 MR. DIVER: The question is ambiguous,
3 Madam Hearing Officer, as to how the decision was
4 made. Are we asking for who made a particular
5 decision and how that person made it?
6 MR. CARSON: I can try to rephrase it.
7 THE COURT: Okay.
8 BY MR. CARSON:
9 Q Can you describe how the selection
10 process went; who participated?
11 A The participants, since I didn't know
12 that much about air conditioning, per se, we sat
13 down, I sat down with the general on the job, I
14 sat down with the architect present, I sat down
15 with an owner's representative, sat down with the
16 representatives from Mid/
Res and all talked at the
17 same time. Then, subsequently, Mid/
Res selected
18 them as the subcontractor. I think
Mautner and
19
Elfering were present at the time.
Abele was out
20 of the picture. He was just a sales
21 representative. And, there may well have been one
22 more person. Harry
Akers may well have been in
23 attendance at the time, or somebody from the
24 construction staff may well have been in
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1 attendance. I don't remember it at this time.
2 And, we requested them to explain what the options
3 were and help educate us as to what the
4 alternatives were relating to the two different
5 approaches.
6 Q And, this would have been when?
7 A This would have been late 1991, 1992.
8 Sometime in that time frame, towards the early
9 stages of the job. Probably 1992.
10 Q And, who was it that had the final
11 decision, as far as the single integrated unit, as
12 opposed to the multiple units scattered around the
13 site?
14 A Well, if you mean who, I ultimately paid
15 the bill. So, the ultimate decision was mine.
16 But, as to the recommendation, I talked to Brad
17 specifically, who said that the --
18 MR. DIVER: Madam Hearing Officer, I'll
19 object to what Brad said.
20 MR. CARSON: What Brad said concerning
21 this is not offered for the truth of what Brad
22 said. It goes into the witness' state of mind as
23 to how the selection was made.
24 MR. DIVER: On that basis, I'll withdraw
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1 my objection.
2 A He said that the single unit would be
3 more efficient. It would perform the task required
4 in a much better fashion, and would do what the
5 unit was designed to do. The multiple units,
6 again, you're looking at a multiplicity of the
7 same type of units. It would be cosmetically,
8 maybe a little less attractive, and maybe a little
9 less efficient in operation. And, it was his
10 recommendation that we go with the one unit, which
11 is ultimately what we decided on.
12 Q When you use the term "efficient", to
13 your understanding, what do you understand as far
14 as the relative efficiency of the single unit as
15 opposed to the multiple?
16 A At the time, efficiently meant that it
17 would have less maintenance requirements, that it
18 would provide the cooling that the house needed,
19 when it needed it. And, I was attempting, in this
20 construction process, to create, as best possible,
21 a trouble-free house, realizing that that's not
22 entirely possible. But, just the same, efficiency,
23 I understood it to mean that it would operate
24 within the ranges required and operate for a long
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1 period of time.
2 Q At the time that this selection process
3 was under way, did you have a specific
4 understanding as to the unit, the manufacturer,
5 the size, the precise type of unit that was being
6 discussed?
7 A No, I did not.
8 Q When was it that you learned,
9 specifically, what the unit would be, in terms of
10 its size, and manufacturer, or any other specific
11 information about it?
12 A The first time I saw the unit, when it
13 arrived on the job site, and I pulled up for a
14 meeting, it was sitting on the ground.
15 Q In selecting the single unit, as opposed
16 to the multiple units, what, if any, consideration
17 did you give to the possibility of an annoyance
18 from sound?
19 A On the selection of the unit?
20 Q The selection of the single unit versus
21 the multiple units.
22 A Sound really wasn't much of an issue at
23 the time. It was more efficiency and the
24 operational requirements. I don't think we really
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1 talked, I mean, it may have been that sound, on
2 the smaller units, because there are a lot of
3 them, and there are a lot more moving parts. But,
4 it was negligible. It wasn't really discussed.
5 Q It wasn't the focus of discussion?
6 A No, definitely not.
7 Q Now, this single
chiller unit, was this
8 planned for an inside location, or an outside
9 location?
10 A It was planned for an outside location.
11 Q In these meetings, was the subject
12 discussed as to where it would be located?
13 A Yes, we talked about, we talked about
14 locations. Mid/
Res gave us --
15 MR. DIVER: Ma'am, I'm afraid, could the
16 witness again be asked to talk about what he did?
17 I keep hearing "we", and I'm not sure who it is
18 that he's talking about.
19 A Mid/
Res gave me different alternative
20 locations that I could choose from.
21 MR. CARSON: And, I don't know whether we
22 don't necessarily have to mark it, but in
23 reviewing it, would it be helpful to have this in
24 front of you, Exhibit No. 51?
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1 A Again, it's fairly --
2 Q What discussion or what considerations
3 did you make in terms of a north or south or east
4 or west location for this
chiller unit?
5 A I was given, essentially, two preferred
6 locations. One was --
7 MR. DIVER: Madam Hearing Officer, I'm
8 going to have to object again. If he could tell
9 us who it was that was giving these
10 instructions --
11 A Brad
Mautner, President of Mid/
Res --
12 MR. DIVER: Thank you.
13 A -- gave me two locations that I could
14 choose from, both being equally, both without any
15 bias towards either. One was located where the
16 current air conditioning unit sits today, on the
17 north end of the house.
18 Q And, as I recall, that was marked by you
19 in the opening of this hearing?
20 A It may well, it looks like my
21 handwriting.
22 Q That one box?
23 A Mid/
Res, the says Crown A/C. A second
24 location would have been on the south side of the
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1 house. The east side of the house was very, very
2 narrow, and it would be difficult to service. And,
3 I also don't think that we would have been able to
4 put the unit in and get passage behind it. So, we
5 decided that was inappropriate. Also, the west
6 side of the house. The house is a long house, and
7 I was told that, from an operational point, it's
8 more efficient to put it somewhere in the middle
9 section than on either side. So, essentially,
10 we're talking about the north side and the south
11 side.
12 Q Your understanding, then, was that the
13 east and the west side were not good options?
14 A Not good. They were not as good as the
15 other options.
16 Q And, why not?
17 A Because the length of the house, and the
18 fact that you had to push from, air and whatever
19 from one end to the other, it's starting to get
20 technical. But, from my recollection is that
21 pushing it along the long distance of the house
22 was not as efficient as taking it and going from
23 side to side.
24 Q And, who was it that selected the
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1285
1 location that it ultimately ended up with?
2 A I think it was a combination of all of
3 the, I ultimately made the, or blessed the
4 decision, since it was my house. And, because of
5 the ease of serviceability, because it was, even
6 though it was going to be one of the first things
7 seen as you drove in our driveway, we figured we
8 could put trees around it. It, operationally,
9 seemed to be in a good location. And, at the
10 time, our contractor, giving us the choices, we
11 figured that was as good a choice as any.
12 Q What, if any, consideration did you give
13 to the possibility of annoyance from sound in that
14 location?
15 A The only discussion we had, at the time,
16 was that the unit, if placed on the north end of
17 the house, next to the garage, it was directly
18 under the window of the guest bedroom that was
19 going to be built above it. And, Brad told me that
20 we might, the guests living there might hear some
21 fan noise, if they opened up their window. But,
22 that didn't seem to, at that time, that didn't
23 seem to be an issue. That was the only mention of
24 noise that I recall.
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1 Q Okay. And, that particular issue didn't
2 cause you any concern?
3 A No, it did not cause me any concern. Air
4 conditioning units make noise when they operate.
5 And, fan are fans.
6 Q And, do you know the, or can you state
7 the approximate distance from the top of that
8
chiller unit to the guest bedroom window in your
9 home, as it exists today?
10 A I guess it's about 8 to 10 feet. The
11 second bedroom, maybe 9 feet. The bedroom window
12 is about midway up the second floor. The unit is
13 about, I guess, 7 feet, 6, 7, 8 feet off the
14 ground. And, it's about, I guess, about 5 feet
15 from the wall.
16 Q Now, taking you back to a point in time
17 before the unit was installed and operating, did
18 you have occasion to speak with your new neighbor,
19 David
Shelton?
20 A Yes. Mr.
Shelton called me before we had
21 gone in. As I recall, during that conversation,
22 mentioned, had asked me if I was interested in
23 considering purchasing his house.
24 Q And, how did you respond to that?
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1 A I responded by saying that we would
2 probably have a fairly wide difference of opinion
3 as to value. He was selling a house. I looked at
4 it as a piece of property with an
encumberance on
5 it. I already had a project underfoot in the
6 renovation of our place next door. And, thanked
7 him very much for the call and consideration, but
8 told him, at this time, it just wasn't in our
9 plans. And, that was that.
10 Q The air conditioning unit, the single,
11 integrated
chiller unit, was ultimately installed
12 in the location that's shown, Crown A/C on Exhibit
13 No. 51?
14 A Generally speaking, yes, that's the
15 location.
16 Q And, when was the unit first operated, to
17 your knowledge?
18 A In September of 1993.
19 Q How did you learn that the unit had
20 become operational?
21 A I visited the job site on a fairly
22 regular basis in the morning before I came down to
23 work. And, during one of the occasions, I had
24 asked when are we going to start the unit? I was
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1288
1 surprised to find out that we had already been
2 operating the unit for a number of days. I don't
3 know whether it had been operating the full day or
4 a couple of hours during the day, but it had been
5 fired up and, I guess, had been operational during
6 some of the work days.
7 Q Did you have occasion to hear the unit in
8 operation in those early, in those visits to the
9 site in the early stages?
10 A Yes.
11 Q What did it sound like?
12 A It sounded like an air conditioning unit.
13 Q Did it come to your attention that a
14 neighbor had a complaint concerning the sound from
15 that air conditioner?
16 A Yes.
17 MR. DIVER: Excuse me, what was this
18 prior to, just in terms of time, are we talking
19 about the complaint being prior to his hearing the
20 sounds and experiencing them, or after?
21 A After.
22 MR. CARSON: Well, I haven't asked that
23 question.
24 MR. DIVER: That's what I'm asking. Please
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
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1 put it in perspective so --
2 BY MR. CARSON:
3 Q Did it come to your attention, sir, that
4 the, that a neighbor had a complaint concerning
5 noise for the air conditioner?
6 A Yes.
7 Q How did that come to your attention?
8 A One night, while I was home, we were
9 living at 35 Linden in
Wilmette, I received a call
10 from
Susi Shelton.
11 Q And, can you put a date, an approximate
12 date on that call?
13 A It was, I believe, sometime in September
14 of 1993.
15 Q Okay. What time was it?
16 A Between 10:00, 11:00 o'clock at night,
17 something like that. The kids were down, so it was
18 sometime after that.
19 Q Okay. Was this before or after you had
20 been to the site and learned that the unit had
21 become operational?
22 A This was afterwards.
23 Q Describe the conversation in this phone
24 call that you received?
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1290
1 A I received a call -- well, I received a
2 call from
Susi Shelton, who told me that he had
3 called the police. She had heard our unit, our air
4 conditioning unit go on. She had called the police
5 because she couldn't find our telephone number.
6 And, she was able to find our telephone number,
7 and gave us a call to let us know that our unit,
8 our air conditioning unit, was on, asked us, asked
9 me if I would turn it off because it was making a
10 noise. And, I told her that I would take care of
11 it, and proceeded to get dressed and drive out to
12 the job site.
13 Q Did she describe the noise?
14 A No, she just said it was making a noise.
15 Q And, what did you do after that
16 conversation?
17 A I got in my car, stopped off and got a
18 flashlight, because I didn't have one at the time,
19 and just forgot one at the house. En route, I
20 called Pete
Keller on my car phone to ask him how
21 you turn the unit off. And, Pete told me that I
22 needed to go down to the basement and pull a
23 couple of switches in order to shut it down
24 entirely. Then, entered the property, couldn't
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1291
1 find the kill switch outside that he talked about,
2 went down into the basement and completely shut
3 the unit down.
4 Q By the way, I don't think, in your
5 testimony here, we've identified who Pete
Keller
6 was.
7 A Pete
Keller, at the time, was the, we had
8 changed general contractors from Pepper
9
Contruction to Pete
Keller.
10 Q So, you arrived at the job site?
11 A Arrived at the job site, went down, shut
12 off the unit, and then left the job site. And, on
13 my way back, I stopped off, I noticed that there
14 was a
Winnetka policeman parked in the parking lot
15 at the corner, on the east side of Elder &
16 Sheridan, and pulled in and told him that,
17 introduced myself, that I was the resident at 685
18
Ardsley. That there had been a complaint, as I
19 understood it, registered on my property. I
20 wanted him to know that I had gone to the house, I
21 had taken care of the complaint. And, that he
22 should, you know, advise his, advise the main
23 office that it had been taken care of.
24 Q And, did he have any knowledge concerning
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1292
1 a complaint that had been made?
2 A He called the office and told me that
3 they had no knowledge of any complaint; that he
4 appreciated me informing them of the events, but
5 that they had nothing registered, at the time.
6 Q And, when you went to the job site, were
7 there any police in the area?
8 A No, there were not.
9 Q So, you had shut the unit off and
10 ultimately, I assume, you returned home that
11 evening?
12 A Yes.
13 Q Did you do anything the next day
14 regarding the air conditioning unit?
15 A Well, the next morning, I got up early,
16 went to the job site, and met with Pete and told
17 him of what I had done the night before. He
18 already was aware that I had been to the job site
19 that evening, and turning off the unit. I
20 instructed him to contact Mid/
Res and let them
21 know that our neighbors to the north had
22 registered a complaint regarding the noise from
23 the unit, and wanted him to work with Mid/
Res to
24 try and see what, you know, what the program was
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1293
1 and what things were going to be done
2 prospectively, relating to the unit.
3 Q Thereafter -- well, I'll show you Exhibit
4 No. 49, which has already been placed into
5 evidence.
6 MR. CARSON: Can we go off the record for
7 just a second with respect to these exhibits?
8 THE COURT: Off the record.
9 (WHEREUPON, a brief discussion was
10 held)
11 THE COURT: We'll go back on the record.
12 BY MR. CARSON:
13 Q You now have before you Exhibit No. 49,
14 Mr. Crown.
15 A Yes.
16 Q And, this is a letter that you received
17 from David
Shelton, it's dated October 11th, 1993,
18 is that right?
19 A That's correct.
20 Q And, this would, you said, stated that
21 this earlier conversation, about the events that
22 you just related, occurred in September. So, this
23 would have been a number of weeks later?
24 A Yes.
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1294
1 Q Prior to your receipt of this letter, the
2 subject of this letter obviously is the complaints
3 about the noise from the air conditioning unit,
4 right?
5 A Yes, it is.
6 Q Prior to your receipt of this letter, had
7 you done anything to address the issue of noise
8 emitted from the air conditioning unit?
9 A After the conversation with
Susi Shelton,
10 and after talking with Pete, we'd been in
11 conversations with Mid/
Res to advise them that our
12 neighbor--I had been in conversation with Pete
13
Keller --
14 THE COURT: Okay. Just, let's take a
15 moment to discuss this. Mr. Crown, let me ask
16 you, when you refer to "we", who are you referring
17 to? Are you referring to you and your wife?
18 A No, I'm not.
19 THE COURT: Are you referring to
20 yourself?
21 A Me, myself.
22 THE COURT: All right. Then, I'll permit
23 the witness to continue to use that expression
24 because it's familiar to him and is natural for
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1295
1 him to use it in his conversation.
2 A I work in a family business. It's tough
3 to get away from the "we".
4 THE COURT: That will be permitted.
5 Proceed.
6 A Thank you. I, after talking with Pete
7 and then having Pete having conversations with
8 Mid/
Res, I was told that the unit still had to be
9 tweaked, fine-tuned, that the installation of the
10 unit was not yet complete. We were still
11 intending on putting up some buffer around it,
12 trees and fences, and so forth. And, we hadn't
13 yet, the unit had not yet been fine tuned. And,
14 until it was, it's a mechanical device, we felt
15 that Mid/
Res was still in the process of the
16 installation.
17 Q According to this letter, Mr.
Shelton
18 states, in the middle of the second page, "We know
19 that you plan various steps to reduce the noise."
20 Had you had conversations with Mr.
Shelton
21 prior to your receipt of this letter, concerning
22 this issue?
23 A Either David or
Susi Shelton, one of the
24 two. I believe we told them of our plans to
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1296
1 surround it with trees and put fencing up, and
2 that the unit needed to be fine tuned and tweaked.
3 Q Did you take any further steps? You say
4 instead that they were planning the fine-tuning or
5 the tweaking, and you were planning the
6 landscaping and the fencing around the unit. Were
7 there any further steps that you took, in the fall
8 of 1993, to address the
Shelton's concerns about
9 noise?
10 A Oh, well, I instructed Pete not to run
11 the unit at night. We were just going to run it
12 during the daylight hours, the work day hours,
13 from 7:00 to 3:30, 4:00 o'clock, whenever the work
14 crews left. We felt that that was the least we
15 could do to accommodate our neighbors until we had
16 at least more landscaping up, and we had a real
17 need for the system to be on.
18 Q What was the status of construction, as
19 far as the interior of the house is concerned, in
20 the fall of 1993?
21 A Actually, in the fall of 1993, we had had
22 a number of trades working inside of the house. We
23 had stone, marble, tile trades in there, which are
24 wet trades, putting down floors for bathrooms and
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1297
1 what, then, what has now become the
sunroom area.
2 We had wooden floors, hickory floors put down in
3 the kitchen area. Those are planks on which the
4 kitchen cabinet would sit. And, I believe we had
5 also some of the kitchen cabinets installed. They,
6 the small
Bolten kitchen cabinets from England, it
7 was a pine cabinet, that were installed in the
8 kitchen area. And, I believe some of the millwork
9 pieces were installed in the second floor
10 bedrooms. We had some built-in bookshelves and
11 door jambs and things of that sort. Actually, the
12 door jambs probably were not in, but some of the
13 bookshelves and some of the molding might well
14 have been put in. And, also, we had plaster work
15 being done on the walls. We were closing up walls.
16 The combination of the plaster and the wet tile
17 and stone trade created an additional amount of
18 moisture in the house. And, it actually competed
19 with or created problems for all the wood trades
20 because the woods absorbed the moisture and, I
21 believe, as I was told, you needed a moisture
22 content in the air of, or in the wood at least of
23 8%, 7, 8, 9% in order for the wood to go down
24 properly, adhere properly and not create a problem
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1298
1 for you going forward.
2 Q Were any concerns expressed to you
3 concerning this decision to operate the air
4 conditioning unit only during daytime hours?
5 A Yes. It was not preferred by the subs.
6 It was clearly not preferred by our general. Pete
7 wanted to see the job move forward. Pete was
8 interested in progress, and he felt that we needed
9 to dry out the house, remove the water as best we
10 could from the air. And, not having the air
11 conditioning system on slowed down that process.
12 And, essentially, extended the job. It became
13 more costly, as a result. It prolonged subsequent
14 trades from coming in and completing their job,
15 and ultimately, kept us out of the house, kept us
16 from moving in at an earlier date.
17 Q And, in weighing these considerations,
18 you opted for what?
19 A We chose to still go the route of keeping
20 it on only during the working construction hours,
21 not having it on at night, in order not to disturb
22 the neighbors. And, essentially, running the risk
23 of having some problems with the installations for
24 the balance of the year. It was fall, it was
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1299
1 going towards winter. We felt that we would take a
2 gamble and not have the unit operate at night.
3 Q Now, in this time frame, in the fall of
4 1993, did you have occasion to hear what the air
5 conditioning unit sounded like, from the
Shelton
6 property?
7 A Yes. We, I went over --
8 MR. DIVER: I'm sorry, what?
9 A I went over --
10 MR. DIVER: I understand, the timing of
11 this?
12 MR. CARSON: Fall of 1993, sorry.
13 A I went over to the
Shelton house, stood
14 on the patio and listened to the unit.
15 Q Who else was present?
16 A Pete was with me, maybe both times.
17
Definitiely one of the times, might have been with
18 me this other time.
19 Q So, you were on the
Shelton property to
20 listen on two occasions?
21 A On two occasions, yes.
22 Q Okay. So, this would be the first?
23 A This was the first occasion.
24 Q And, Pete
Keller may have been there?
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1300
1 A He may have well been there.
2 Q And, was either
Susi or David there?
3 A Yes, one of them.
Susi Shelton may have
4 been there. One of the
Sheltons was there. I'd
5 only go on their property when they were present,
6 and with their permission.
7 Q And, you listened to the unit from their
8 patio?
9 A Yes.
10 Q And, your unit was operating at the time?
11 A Yes.
12 Q And, what did it sound like?
13 A It didn't sound obtrusive. It sounded
14 like an air conditioning unit. You could hear the
15 unit operating, but it did not seem to be
16 bothersome to me.
17 Q Did you have any conversation with
Susi
18
Shelton at that time?
19 A Probably did, but it was very short,
20 didn't last very long.
21 Q Did she say anything at all about the
22 upstairs
bedrom?
23 A No, it was never mentioned.
24 Q Since it's an air
conditionoing unit, I
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1301
1 assume it wasn't operating in the wintertime?
2 A No.
3 Q By the following spring, spring of 1994,
4 were there any additional steps taken with an idea
5 towards reducing the sound emissions from the
6 unit?
7 A Mid/
Res, during the course of the fall
8 and into the winter, I was in conversation with
9 all the subs, Mid/
Res being one of them. This was
10 one of the issues that was front and center as a
11 discussion piece, and Mid/
Res had suggested, and I
12 had agreed, that we ought to try what could be
13 tried to try and ameliorate or reduce the noise.
14 Q Did Mid/
Res make specific suggestions?
15 A Yes. Mid/
Res suggested that we rotate
16 the unit 90 degrees on its axis, that we try, I
17 guess, blankets for the compressors, what they
18 call them, and put some cones, extensions on the
19 fan portion on the top to try and move the noise
20 or direct the noise to go straight up.
21 Q Okay. Who, specifically, recommended the
22 rotating of the unit?
23 A It could have been either Brad or Gary
24
Elfering.
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1302
1 Q It came from Mid/
Res?
2 A It came from Mid/
Res, that much I know. I
3 don't remember the specifics.
4 Q And, what was the purpose of rotating the
5 unit, as you understood it?
6 A As I understood it, the noisiest portion
7 of the base unit was pointing towards the north,
8 toward the
Shelton's property. That's where, I
9 guess, the air intake and the open area of the
10 unit was located. And, as opposed to having the
11 noisy area facing north, we moved it so it was
12 facing to the east and directing it away from the
13
Shelton property. We felt that that would, at
14 least, lessen the sound.
15 Q And, did you authorize that work to be
16 done?
17 A Yes, I did.
18 Q And, you also mentioned that you had a
19 recommendation that blankets be placed over the
20 compressors?
21 A That was Mid/
Res' suggestion, that there
22 be blankets. I never, blankets I guess muffle
23 sound. So it, and quite honestly, they suggested
24 to put the blanket on. I guess we put the blankets
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1303
1 on and subsequently took the blankets off.
2 Q But, it was your understanding, though,
3 that it was intended to muffle the sound?
4 A That was my understanding.
5 Q And, that was work that you also
6 authorized?
7 A Yes, it was.
8 Q And, you also mentioned extensions or
9 cones?
10 A Right.
11 Q Was that a recommendation received from
12 Mid/
Res?
13 A Yes. The cones were essentially
14 extensions of the circular portion above the fans
15 to redirect the, to increase the height of the fan
16 portion and, I guess, redirect the noise. Noise,
17 I guess, travels in a straight line, at least
18 that's my understanding that it does. I'm not a
19 sound expert.
20 MR. CARSON: So, the record, I'd like
21 the record to show the witness is holding his
22 hands straight up like a touchdown. You understood
23 the noise would be directed upwards?
24 A That was my understanding, yes, on all
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1304
1 three of the fans up top.
2 Q And, you authorized that work to be done
3 as well?
4 A Yes, I did.
5 Q And, at whose expense was that? Were
6 those sound attenuation steps undertaken?
7 A I believe they were mine. The bills are,
8 I guess, part of the record. I think we paid
9 $3,000 or something like that, for that.
10 MR. CARSON: The record can show that
11 there was a stipulation at the outset as to the
12 cost of 1994 sound attenuation.
13 MR. DIVER: I think there's better
14 evidence than that yet in the record. I think
15 there's an actual bill for the services, which
16 indicates, among other things, that there was no
17 charge whatsoever for rotating the unit on its
18 axis.
19 MR. CARSON: You tell me if that was a
20 stipulation the first day, and that the first 1994
21 set of acoustic controls, including rotation,
22 acoustic blankets --
23 MR. DIVER: The purpose of this
24 stipulation was to establish the cost of
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1305
1 activities, yes, and that's what we stipulated to.
2 Not that those were for acoustical control.
3 MR. CARSON: $820 was the number, and
4 that was stipulated to, right?
5 MR. DIVER: Yes. But, I'm telling you,
6 there's a document in the record that says no
7 charge was made for the rotation of this device on
8 its axis.
9 THE COURT: Mr. Carson, could I see the
10 document that you're discussing?
11 MR. CARSON: Can we go off the record to
12 discuss the stipulation?
13 THE COURT: Let's go off the record to
14 discuss the cost information that is in the
15 record, and that has been made part of the
16 evidence.
17 (Off the record)
18 THE COURT: At this point, we have the
19 introduction of a stipulation, Stipulation Number
20 1, and it's a stipulation by the parties to
21 specific costs that were incurred related to the
22 HVAC system. Is that an accurate reflection of
23 the stipulation?
24 MR. DIVER: Yes, that these are specific
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1306
1 costs that were incurred for the activities that
2 are listed on the document, yes.
3 THE COURT: And, that you agree that
4 these are the actual costs?
5 MR. CARSON: Yes, that's the stipulation.
6 MR. DIVER: Yes, that's the stipulation.
7 THE COURT: Thank you very much. You may
8 proceed.
9 MR. CARSON: That's marked Stipulation
10 No. 1.
11 THE COURT: Yes. And, let the record
12 reflect that the stipulation does not reflect all
13 costs related to the HVAC system, but does reflect
14 the costs that are identified on the document as
15 being actual costs.
16 BY MR. CARSON:
17 Q Did you apprise the
Sheltons of the steps
18 that were being taken; that is, rotating the unit,
19 putting blankets on the compressors, cones on
20 fans?
21 A Yes, either I apprised them or I asked
22 Pete to apprise them. They were apprised.
23 Q And, with respect to the plans for
24 installing plantings and a stockade fence, were
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1307
1 they made aware of those plans, as well?
2 A Yes, there were actually two fences.
3 There was a fence that we put around the unit, and
4 a second fence that was on our joint property
5 line. I needed to ask their permission to take
6 down an old, rickety fence and put up a brand new
7 one. I needed their permission in order to do
8 that. So, they were apprised at the time that
9 there would be a fence and also trees, that would
10 be on the property line. Trees on our side, that
11 is.
12 Q Did you have an understanding as to
13 whether these trees that were planned would have
14 any effect on the transmission of sound from your
15 property to the
Shelton's property?
16 A At the time, I believed they would, yes.
17 Q And, what was your understanding?
18 A If you put something in the way of a
19 sound, it will muffle the sound.
20 Q Did you also have an understanding, with
21 respect to the effect of a stockade fence, with
22 respect to the transmission of sound from your
23 property to the
Shelton property?
24 A Basically, the same understanding that
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1308
1 you put a barrier up between the noise and end
2 point, that it will retard it, in some fashion.
3 Q In the spring and summer of 1994, was
4 your family occupying the home?
5 A No, they were not.
6 Q Were you operating the air conditioning
7 unit at that time?
8 A In the spring and -- well, late spring,
9 early summer, yes, we were.
10 Q Of 1994?
11 A Of 1994, yes.
12 Q And, why were you operating the air
13 conditioning at that time, if your family was not
14 occupying the home?
15 A Well, at the time over the winter and
16 into the spring and summer, more parts of the
17 house were being installed. We were still doing
18 plastering, and there was still an additional
19 level of moisture in the house. We have a fair
20 amount of plaster moldings, which were creating a
21 problem getting rid of the moisture. We also were
22 putting in more and more woodwork, millwork. I
23 think the second floor was now complete, virtually
24 complete, except for the master bedroom. And, the
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1309
1 downstairs, first floor, was starting to get its
2 installation of woodwork. We also had the kitchen,
3 I believe, fully installed. And, we were just
4 trying to protect and preserve the work that was
5 there. And also, provide for an environment that
6 was conducive for the continuing installation of
7 the millwork product that we had ordered.
8 Q Did you experience any specific problems
9 regarding humidity as far as the work that was in
10 place?
11 A We ended up having a number of problems,
12 particularly in the floors. The wood planks were
13 buckling because they were taking in more humidity
14 than we were able to get out of the house. We
15 tried. We put humidifiers and all sorts of other
16 ancillary type rental units in to try and help
17 expedite the matter and move the humidity out.
18 But, we were still experiencing the buckling
19 problem, and actually had to have the floors
20 replaced. I think they've been replaced now,
21 three times.
22 Q In this time frame, let's say the late
23 spring, early summer of 1994, did you have
24 occasion to speak with a
Winnetka Police Officer
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1310
1 concerning a complaint?
2 A I believe it was in June of 1994, I
3 received a phone call from an officer from the
4
Winnetka Police main station who said that he had
5 received a complaint from a neighbor about the air
6 conditioning unit, and asked me to turn it off.
7 Q And, what did you say to him in that
8 conversation?
9 A I asked him, I said, would you help me
10 understand what I've done wrong? Am I, you know,
11 am I in violation of something? Are you telling
12 me that I have to turn it off? He said, no, I'm
13 just asking you to turn off the unit. I said
14 well, if you're telling me to turn it off, I'll be
15 happy to turn it off. He said no, I can't tell you
16 to turn it off. It's not part of our
17 jurisdiction. All I can do is make the call and
18 ask you to turn it off. I said, what do you
19 suggest? He said, I would appreciate it if you
20 would turn it off. I said fine, I'll go turn it
21 off. So, I went and turned it off.
22 Q What, if
anything,did you do after that,
23 as a result of that phone conversation?
24 A The next morning, I went to the job site
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1311
1 and talked with Pete about my conversation the
2 evening prior, and said to Pete, let's go talk to
3 some folks at city hall, Village Hall, and let's
4 talk to the police and find out exactly where we
5 stand. I don't want to create any problems. I'm
6 moving into the area, I'd like to know if I'm
7 doing something wrong. I guess I'd like to know,
8 as soon as possible, so I can take corrective
9 action.
10 Q By the way, in your conversation with the
11 police officer, did he identify who had
12 complained?
13 A He said it was one of my neighbors. I
14 asked him if it was the neighbor to the north, and
15 he said yes.
16 Q So, after your conversation with Pete
17
Keller the next morning at the job site, what, if
18 anything, did you do?
19 A Pete and I got in our respective cars and
20 I drove to Village Hall and it opens up, I
21 believe, at 8:00 o'clock. And, we went inside,
22 looking for Wayne
Brennan, who was the then, in
23 charge of the inspectors. I thought in charge of
24 the inspectors for residential work. Wayne was,
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1312
1 had taken vacation that week, and I then asked, I
2 actually met his supervisor, Ken King. Ken was
3 familiar with the situation.
4 MR. DIVER: Objection, your Honor, as to
5 what Mr. King told him as to either his
6 familiarity with or anything else he told him,
7 It's pure hearsay as to what Ken King had to say.
8 MR. CARSON: Again, your Honor, this is
9 in the nature of testimony to establish the
10 witness' state of mind and his response to
11 complaints, and what steps he took in response to
12 the complaints. It's no different, really, than
13 the multitude of exhibits that have gone in to
14 show that Mr. Crown was put on notice that there
15 was a complaint. This is simply what information
16 he gathered and learned in response to those
17 complaints. It's not offered for the truth.
18 THE COURT: Objection overruled. I'll
19 permit the witness to answer the question.
20 BY MR. CARSON:
21 Q Before you get to that, Mr. Crown, you
22 had a conversation with Ken King at the Village
23 Hall that morning?
24 A Ken King and one of his associates, Ann
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1313
1
Kirshner, I believe her name is.
2 Q Pete
Keller was also there?
3 A Pete was next to me at the time.
4 Q Anyone else?
5 A At the time, no, that was just, and Ann
6
Kirshner. I believe she was very familiar with
7 the situation, inasmuch as she had been talking to
8 the
Sheltons in previous conversations.
9 Q And, what transpired at that meeting?
10 A I explained to them the situation, that I
11 had gotten a call from the police chief the night
12 before or not the chief, but one of the police
13 officers of the
Winnetka Department the night
14 before. That I was concerned that I didn't
15 understand, I wanted to know that I was not
16 creating a, that I was not out of compliance of
17 some code or ordinance. That if there was
18 something that I was doing that was inappropriate,
19 I at least wanted to know that firsthand, as
20 opposed to being told that later on down the line,
21 I wanted to address it up front. And, therefore, I
22 wanted to come and talk to Wayne
Brennan
23 personally and address the situation with him
24 face-to-face. I was told that Wayne was on
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1314
1 vacation for the week and --
2 MR. DIVER: I'll object, unless we hear
3 from whom he was told this.
4 A Ken King told me that Wayne
Brennan was
5 on vacation for the week, that he was
Wayne's
6 supervisor. Ken King was
Wayne's supervisor, to
7 which I suggested if they had 15 minutes, Ann
8
Kirshner and Ken King had 15 minutes, would they
9 mind following Pete and me back to my house so
10 that we could show them the unit, listen to the
11 unit, and talk about it on the premises.
12 Q And, did they agree to do that?
13 A They agreed. They got into, I think, one
14 car and followed us back, followed me back,
15 followed Pete back to the house, which is not that
16 far away. And, we proceeded to stand next to the
17 unit, walk around the unit, talk in a very, you
18 know, low, normal, conversational tone.
19 Q Was the unit operating at that time?
20 A Yes, it was.
21 Q And, you had a conversation, again, with
22 Mr. King and Ms.
Kirshner, and Mr.
Keller, at the
23 unit?
24 A Right next to the unit, about a little
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1315
1 closer than you are from me.
2 Q Okay. Indicating about 8 feet?
3 A Actually, we were about a foot and a half
4 to two feet away.
5 Q Okay. And, what was said by whom in that
6 conversation?
7 A I explained to them, I said this is the
8 unit that seems to be creating the problems. And,
9 I just wanted to know whether or not there was
10 anything that I had done or hadn't done that I
11 needed to take action on, or be aware of. And,
12 Ann
Kirshner apprised me that I was in compliance
13 with ordinances and codes.
14 MR. DIVER: Madam Hearing Officer, I'm
15 assuming that my objection to this entire line of
16 questioning, it still stands; that this is being
17 offered just for the purpose of what she said, but
18 not for the purpose of whether or not he was in
19 compliance with codes.
20 MR. CARSON: It's not our intent to
21 introduce this for the truth. This is simply to
22 establish this witness' state of mind.
23 MR. DIVER: It's a hearsay statement that
24 the witness received.
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1316
1 A And, I was told that I was, that I had
2 done that which was necessary and required by the
3 Village, and they also, Ken King also commented
4 that he thought the unit was, he said this seems
5 to be a quiet unit to me.
6 MR. DIVER: Again, that's not offered for
7 the truth of it, I assume, is that true, that that
8 was not offered for the purpose of the truth of
9 whether or not it was quiet or not?
10 MR. CARSON: I would refer, Madam Hearing
11 Officer, if Mr. Diver makes his objection rather
12 than direct questions to me.
13 MR. DIVER: I've made an objection. This
14 is a dialogue question. The point is, counsel,
15 you're allowing this witness to get in all kinds
16 of information that's going to be willy-nilly
17 treated as either part of his mental state, or for
18 the truth. And, I want to make it clear that it's
19 not being offered for the purpose of establishing
20 the truth of it, but merely for the purpose of
21 saying this is something somebody said to
22 somebody, and it was for the purpose of
23 determining what Steven's mental state was. If
24 that's the only purpose of this line of
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1317
1 questioning, fine. Otherwise, I'll move to strike
2 the entire line of questioning.
3 MR. CARSON: Madam Hearing Officer, if
4 you wish me to respond, I'm happy to respond.
5 THE COURT: I believe you responded on
6 this point previously.
7 MR. CARSON: Thank you.
8 THE COURT: This testimony appears to be
9 for the purpose of establishing Mr. Crown's mental
10 state with respect to the HVAC system, and sounds
11 that were emitted by the system. And, it also
12 reflects efforts that he took with respect to
13 those emissions. So, I'll permit the witness to
14 continue testifying in this manner. And, at this
15 point, it would be a good idea for us to take our
16 morning break, albeit late. So, let's take a five
17 to ten minute break and then we'll come back and
18 continue.
19 MR. CARSON: Thank you.
20 (WHEREUPON, a short recess was
21 taken.)
22 THE COURT: Back on the record.
23 MR. CARSON: Yes, thank you.
24 BY MR. CARSON:
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1318
1 Q I'd like to turn your attention back to
2 Exhibit No. 49, which was the October 11, 1993
3 letter, and, specifically, the comment at the
4 bottom of Page 2. Pete says that your unit can be
5 located anywhere around your house. We ask that
6 you relocate it. First, did you have any
7 conversations with Pete
Keller in the timeframe of
8 this letter, that is the fall of 1993 or, let's
9 say, prior to your receipt of this letter,
10 concerning the possibility of relocating the unit?
11 A No.
12 Q After your receipt of this letter, did
13 you have any
coversation with Pete
Keller
14 concerning the possibility of relocating the unit?
15 A I approached Pete after I got the letter,
16 and asked him if he had made that statement to the
17
Sheltons. And, it concerned me that he had made a
18 statement like that without first at least
19 conferring with me.
20 Q And, how did he respond?
21 A
Pete's response was, he said well, it can
22 be relocated, the house can be relocated. He said
23 in construction, anything is possible. Whether
24 it's feasible or practicable, or whether it's
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1319
1 advisable, he wasn't really in a position to say.
2 But, if asked if it could be moved, he said yes, I
3 told them it could be moved. But, he was talking
4 about just a physical picking up and putting some
5 someplace else.
6 Q Did you have, did you form an impression
7 in October of 1993 as to the practicability of
8 moving the unit to another location, at that stage
9 of the project?
10 A At that time, we were in the early stages
11 of the installation. We were still working on the
12 fencing, the landscaping.
13 MR. DIVER: Madam Hearing Officer, I'm
14 going to have to object, again, unless it's a
15 continuing understanding that when he's using this
16 word "we", he's talking about what he's doing. I
17 don't believe he's talking about what he's doing,
18 and I can't tell if he's talking about what he's
19 doing or what somebody else is doing.
20 A I'll try and be more specific, Madam
21 Hearing Officer.
22 THE COURT: The objection is overruled.
23 A During that time, Mid/
Res was still in
24 the final phases of tweaking the machine, or at
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1320
1 least it was still in the process of fine-tuning
2 the equipment. We had not yet installed all of
3 the surrounding trees. I had not, they had not
4 been installed as I had authorized. Also,
5 essentially, we weren't done yet with the
6 installation. And, I didn't feel that it was a
7 fair time to make any type of judgment as to
8 whether or not the unit was or wasn't operating in
9 the manner in which it was hoped to, or designed
10 to.
11 Q So, on the basis of those considerations,
12 did you make a determination as to whether or not
13 the unit should be moved?
14 A At the time, it didn't seem as though
15 that would be a rational, thoughtful, next step.
16 Q Why not?
17 A Well, first of all, I was relying on
18 experts in the field of HVAC, Mid/Res. David
19
Shelton, to my knowledge, wasn't an expert in the
20 field. I had had numerous conversations with our
21 experts, as it related to location, and the
22 equipment. It had been a very long, thoughtful
23 process. It was a fairly elaborate, complex
24 system. And, I was relying on our experts, in
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1321
1 large part, for, you know, as to their
2 recommendations, and then implementing the
3 recommendations. And, it didn't seem, at least
4 prudent at the time, to stop mid-stream and go
5 another direction, based upon a statement or a
6 recommendation from someone who I had no idea
7 where they were getting their facts or
8 information.
9 Q Did you have occasion to speak with
Susi
10
Shelton concerning this letter, this Exhibit No.
11 49?
12 A I believe we spoke after I received the
13 letter. Sometime, we'd run into each other on
14 occasion.
15 Q Can you put a time frame on that
16 conversation?
17 A It was in the fall of 1993. I don't know
18 exactly when.
19 Q And, who was present in that
20 conversation?
21 A Well, I don't recall.
Susi Shelton and
22 me, I guess the two of us. I don't know if there
23 were other people around.
24 Q And, what did she say to you and what did
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1322
1 you say to her, in that conversation?
2 A She said that she was still concerned
3 about the sound. I believe I told her that we
4 were still taking steps to try and put the shields
5 up or the trees up around it, and the fence. And,
6 that she asked me if I had received her husband,
7 David's, letter. I said yes, I did. I told her
8 that, you know, we were taking actions to try and
9 remedy the situation.
10 Q Did you ever tell
Susi Shelton that you
11 did not intend to respond to her husband's stupid
12 letter, or words to that effect?
13 A No, I never used words to that effect. I
14 may have told her that I didn't intend to write a
15 written response to her letter, that I was going
16 to just verbally tell them what we were going to
17 be doing. And, more of a good neighbor approach,
18 just keep them apprised of where we were and what
19 the progress was. But, I didn't intend on getting
20 into a litany of letters going back and forth
21 between neighbors when I could just as easily talk
22 to them.
23 Q I now show you Exhibit No. 17, which is a
24 July 6th, 1994 letter.
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1323
1 A 1994?
2 Q Yes, July 6th, 1994, Exhibit No. 17?
3 A Right.
4 Q This is a letter that you received from
5 David
Shelton, is that right?
6 A Yes.
7 Q Calling your attention to the second
8 paragraph, Mr.
Shelton, stated in this letter to
9 you that, "We had intended to press the Village
10 for action at last Tuesday's council meeting.
11 However, after talking with Bill
Devers, we did
12 not do this." Who is Bill
Devers?
13 A Bill
Devers is a neighbor, part of the
14
Ardsley-Pelham neighborhood.
15 Q And, are you acquainted with Bill
Devers?
16 A Actually, my wife and his wife are
17 friends, or have been friends over the years.
18 I've met Bill, on occasion.
19 Q And, showing you Exhibit No. 14, which is
20 a July 1, 1994 letter from Bill
Devers to you, is
21 that a letter that you received from Bill
Devers
22 at the beginning of July, 1994?
23 A Yes. I actually received the letter
24 after returning back to town from Colorado.
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1324
1 Q Okay. Did you have occasion to speak with
2 Bill
Devers on the subject of the
Shelton
3 complaint?
4 A Yes.
5 Q Where did that conversation take place?
6 A It took place in Aspen, Colorado, at a
7 4th of July party that was held at the Little Nell
8 Hotel.
9 Q And, that would have been after the
10 letter, which is Exhibit No. 14, was sent by Mr.
11
Devers to you?
12 A Yes.
13 Q But, you just testified you didn't see it
14 yet?
15 A No, the letter, I hadn't received the
16 letter as yet.
17 Q And, it was also before you received the
18 July 6th letter, which is Exhibit No. 17, from Mr.
19
Shelton?
20 A That's correct.
21 Q And, who else was present for that
22 conversation between you and Mr.
Devers?
23 A We're at a party, there were a whole host
24 of people there, but nobody was present for the
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1325
1 conversation, other than Bill and I were just
2 talking to each other.
3 Q What did he say to you, and what did you
4 say to him?
5 MR. DIVER: Objection, hearsay, to the
6 extent that we're going to hear what Mr.
Devers
7 had to say to him.
8 MR. CARSON: This, again, your Honor,
9 this is not offered for the truth. It goes to the
10 witness' state of mind in his response to the
11 neighbor's complaints.
12 MR. DIVER: His state of mind as to what?
13 THE COURT: Overruled. The objection is,
14 therefore, overruled.
15 A I can answer?
16 MR. CARSON: Yes.
17 A Okay. You're asking me?
18 BY MR. CARSON:
19 Q What did Mr.
Devers say to you and what
20 did you say to him in that conversation?
21 A At the party, Bill
Devers came over to me
22 and said hello, and said Steve, could I speak to
23 you a second? He pulled me aside, he said first
24 of all, I'd like to apologize. I sent a letter out
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1326
1 and I just wanted, I was asked to send a letter
2 out, and I just wanted to let you know you will be
3 receiving it after you get home. He says we seem
4 to have a problem as it relates to you and the
5
Sheltons. I'd just like to see it get resolved.
6 I responded to Bill, I said I'm aware that there's
7 a problem, but I said, are you aware, and then he
8 asked, he said well, you know, you need to do
9 something to address the situation. I said Bill,
10 are you aware that we have been taking action, and
11 we're continuing to take actions as it relates to
12 this particular situation, to the air conditioning
13 unit. Bill was unaware of any actions that either
14 had been taken, or were planned to be taken. So, I
15 went through the list of the turning of the unit,
16 the cones, the blankets, the shielding, the
17 fences, the nighttime activities being turned off,
18 and so on. Bill was very much surprised that we
19 had been taking these type of actions. And, he
20 said well, I'm hopeful that you and David
Shelton
21 can resolve this thing. And, that's pretty much
22 the extent of our conversation.
23 A I think he did invite me to come over to
24 his house when we got back with my wife, just to
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1327
1 visit. I think that was the last part of it,
2 actually.
3 Q And, thereafter, upon your return to
4 Chicago, you received the letter, which is Exhibit
5 No. 17, wherein Mr.
Shelton states, "However,
6 after talking with Bill
Devers, we did not press
7 the Village for action."
8 A Yes. I received a letter, upon my
9 return, by fax, I think.
10 Q This letter, Exhibit No. 17, also
11 contains, in the fourth paragraph, a statement
12 that, "Your air conditioner contractor,
MidWesCo,
13 yesterday asked our acoustical engineer to consult
14 with them on your noise problem." Do you
15 understand that that's a reference to Al Shiner?
16 A Yes.
17 Q The acoustical engineer?
18 A Yes, it is.
19 Q And, did you, in fact, authorize or
20 suggest to Mid/
Res that they make contact with Al
21 Shiner?
22 A I talked to Brad, I had been continually
23 talking to Brad about this. Brad
Mautner, and Brad
24 suggested that, during one of our conversations,
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1328
1 that maybe we ought to bring in somebody who is an
2 expert in the field of acoustics and sound to help
3 provide some insight to the situation. He said, I
4 know a fellow by the name of Al Shiner, I'd like
5 to give him a call. I said fine, give him a call.
6 Brad called Al Shiner and started explaining to
7 him the situation, and was surprised to find out
8 that Al Shiner was very much aware of the
9 situation, inasmuch as he had been contacted by
10 David
Shelton previously, and was asked to perform
11 some testing or work on Mr.
Shelton's behalf.
12 Brad then called me back and we talked about it,
13 and decided that David obviously felt comfortable
14 with Mr. Shiner.
MidWesCo felt confident in Mr.
15 Shiner's credentials and capability, maybe the
16 best solution was to have a consultant that can't
17 argue with himself as to the direction and
18 solutions. And, I don't know whether it was my
19 suggestion or Brad's, but it was clearly our
20 joint, concurred position that we should go back
21 and ask Al Shiner if he would be willing to work
22 on both of our
behalfs. We'd split the costs,
23 obviously, and allow him to come up with a set of
24 recommendations or what have you, relating to the
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1329
1 situation, or the problem. I wanted to get this
2 resolved as much as anybody. And, it seemed that
3 we didn't need to pick sides in order to find a
4 consultant because each one we felt might have its
5 own vested interest in wanting to come up with the
6 solution.
7 Q So, as a result of this discussion
8 between you and Brad, to your understanding, Al
9 Shiner undertook the engagement?
10 A Brad called Al Shiner. Al Shiner then
11 called David
Shelton and asked permission to work
12 on both of our
behalfs.
13 Q And, do you know, it's your
14 understanding, was that permission given?
15 A Permission was given, with a caveat that
16 if it got into a situation where Al Shiner --
17 David
Shelton said it was, you know, it was
18 unusual to have somebody work on both accounts,
19 but that if it got into a situation, legal
20 situation otherwise, he didn't want Shiner working
21 on our behalf. But, that's understandable. At
22 this point, we weren't looking at going that
23 route. We were looking more toward trying to find
24 a solution or at least recommendations to get us
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1330
1 to a solution.
2 Q And, did you learn that Al Shiner
3 conducted sound measurements at the
Shelton
4 property?
5 A I learned of it. I think I received
6 from, I think, David
Shelton, a letter with some
7 sound measurement readings that Shiner had taken.
8 Q And, after your receipt of those sound
9
redings, what, if anything, did you do?
10 A I passed them on to Brad
Mautner. I
11 relied on Brad to help interpret, explain to me
12 what it meant.
13 Q Did you have occasion to meet with Brad
14
Mautner to, for that purpose, to have someone
15 explain them to you?
16 A I talked to Brad on the phone. I don't
17 know if I met with him in person. He had a copy, I
18 had a copy, we probably talked by phone. I don't
19 know that we personally got together and went
20 through the numbers, or went through the
21 information. But, I asked him to take a look at it
22 and help explain to me what it meant.
23 Q Did you have a meeting with Brad
Mautner,
24 Al Shiner, and Pete
Keller after your receipt of
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1331
1 those sound readings?
2 A Afterwards, we arranged, I arranged with
3 Brad and Pete and Al Shiner to meet at my house to
4 talk, to take a look at the unit, to discuss what
5 possible approaches or possible suggestions he
6 might have to address the situation.
7 Q And, that meeting took place
8 approximately when?
9 A I want to say late July, 1994.
10 Q Okay. Looking at Exhibit No. 34, which
11 is a July 12, 1994 letter.
12 A Mid July, 1994.
13 Q Does this refresh your recollection as to
14 when the meeting took place?
15 A Yes, it's not long after the letter I
16 received from David
Shelton. So, mid-July would
17 probably be right.
18 Q Okay. And, Exhibit No. 34 is a letter to
19 David
Shelton from Al Shiner showing copies to you
20 and to Pete
Keller and Brad Mautner. And, it
21 references a meeting that occurred on July 11,
22 1994.
23 A Right.
24 Q There was such a meeting?
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1332
1 A Yes, there was.
2 Q And, was the subject of available options
3 for the further attenuation of the sound discussed
4 at that meeting?
5 A Yes. We looked at, we were discussing a
6 number of different approaches.
7 Q Okay. What was discussed at the meeting?
8 What approaches were discussed?
9 A I don't know if I can, I don't know if I
10 remember all the approaches, but we were trying to
11 figure out, when I say "we", in this case, I'm
12 talking about Shiner and
Mautner. Pete and I are
13 not acoustical experts. Essentially, Brad and Al
14 were talking about possibly enclosing the unit
15 differently than we had previously decided, as
16 opposed to putting a stockade fence or trees, to
17 put some much different type of structure around
18 it. And, one of the ideas that was put forth was
19 to build a building around it, essentially, with
20 walls, concrete block walls or 8 inch concrete
21 block walls and a roof.
22 Q And, looking at the attachment, the
23 second page of Exhibit No. 34, is that a drawing
24 that was created at that meeting?
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1333
1 A I don't believe it was created at the
2 meeting. It may well have been a, it was a result
3 of the meeting, but it, I don't think that it
4 looks like Pete
Keller's handwriting. And, I
5 think that this is more
Pete's understanding of
6 one of the directions that we were talking about.
7 Q And, on the drawing, you could see that
8 it references a roof line, and there's what
9 appears to be a roof drawn on this drawing,
10 correct?
11 A On the right hand side, it says roof,
12 line of roof, yes.
13 Q What, if any, discussion was there at
14 this meeting concerning creating an enclosure with
15 a roof on it?
16 A There were a couple of issues that were
17 of concern. One was related to Mid/
Res' concern
18 as to the operational, functional question of air
19 and how air moves, if it were in a building. And
20 then, that was the one issue that the technical
21 folks were addressing.
Pete's concern was if you
22 put a roof over it, you're essentially coming
23 under, he was not sure whether or not this was
24 something that could be built on a concrete pad or
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1334
1 whether it qualified as a structure and required
2 footings and foundations. And, we also had,
3 because of a change in the FAR, floor area ratio
4 calculation of the Village of
Winnetka, we had
5
maxed out, as I understod it, our allowable floor
6 area
useage. So, this would require a special
7 variance in order to be built, if we were to build
8 a structure with a roof. So, Pete was concerned
9 about the
timeframe and the process. And, in order
10 to expedite and get at least a preliminary reading
11 from the Village, Pete threw together a drawing,
12 which was his understanding as to what this
13 structure would look like, and wanted to present
14 it to people in the Building Department at the
15 Village to get their read as to whether or not we
16 had, as you can see, on the right hand side, it
17 says above grade. You can see a foundation and a
18 footing below grade, which meant that this is
19 going to become a permanent structure. It's no
20 different than an addition, and would, therefore,
21 require a special variance as it related to our
22 property.
23 Q And, when you say Pete threw together
24 this drawing, looking at Exhibit No. 34, it
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1335
1 appears that the drawing that's attached to it was
2 created within a day after the meeting.
3 A It was.
4 Q Is that your recollection?
5 A It was within a day or so after the
6 meeting. Pete just wanted to get moving on it.
7 Our whole intent here was to try and find a
8 resolution and move as quickly as we possibly
9 could to get this matter behind us.
10 Q I'm showing you now Exhibit No. 47, which
11 is a letter dated July 21, 1994 from David
Shelton
12 to Alan Shiner. And, this letter also shows you as
13 a c.c., as well as Greg
Zak. Did you receive a
14 copy of this letter in the latter part of July,
15 1994?
16 A I received the letter portion of it. I'm
17 not sure if I received the last couple of pages of
18 the, I don't think I received the last three
19 pages.
20 Q So, you did receive the first two?
21 A Yes, I recall seeing the first two. The
22
Trane engineering bulletin, what it says up on the
23 top, Pages 1, 2, 3, I didn't get that until, I
24 think, a second letter that was sent to me by
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1336
1 David
Shelton.
2 Q According to this letter, Mr.
Shelton was
3 raising some questions concerning the proposed
4 enclosure. Had you authorized the construction of
5 the enclosure that was shown on Exhibit No. 34?
6 A No.
7 Q Why not?
8 A Because at the time, there were some
9 questions raised by Mid/
Res as to the operational
10 efficiency of it. There were still some other
11 ideas that were--in fact, Brad
Mautner told me
12 that he had some other thoughts that might work,
13 as well as the proposed enclosure, and still
14 provide the air flow requirements. And, we were,
15 you know, this was hopefully going to be a
16 permanent fix, not a Band-Aid or create additional
17 problems as we moved along. So, we wanted to do
18 this in a very thoughtful fashion from the get go.
19 Q So, it was your understanding that
20 Mid/
Res was working on another alternative?
21 A They were. As I understood it, from Brad,
22 they were exploring some other possible ways of
23 enclosing the unit, which ultimately resulted in,
24 I guess what are called the quiet flow panels or
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1337
1 the metal panels that surround it today.
2 Q Did you hear from other neighbors, aside
3 from the
Sheltons, in 1994, concerning sound
4 emissions from the air conditioner?
5 A I received letters from neighbors, yes.
6 Q This is Exhibit No. 38, which is a group
7 exhibit comprised of a number of letters dated
8 July 27, 1994. Are these letters that you sent,
9 at that time, July 27, 1994?
10 A Yes.
11 Q And, what was the purpose of sending the
12 letters?
13 A The purpose was simply that I had
14 thought, from the beginning, that David
Shelton
15 and I could resolve this issue neighbor to
16 neighbor, that we didn't need to go outside of our
17 own respective household, and that I thought that
18 I was working on this in a very diligent, very
19 thoughtful fashion. But, it was becoming apparent
20 that other neighbors, in fact the neighborhood,
21 was being brought into this, this apparent
22 conflict or disagreement. It was also apparent
23 that one side of the story was being told, as was
24 relayed to me by Bill
Devers. And, it seemed that,
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1338
1 as opposed to staying quiet and not taking a, it
2 wasn't our position to go out and put this in the
3 press or put this in the neighborhood as an issue,
4 because of the level it had escalated to, it
5 seemed appropriate to maybe set the record
6 straight and just bring the neighborhood up to
7 date so that at least everybody had a common base
8 of information and heard from me. I felt that
9 this letter, at least would shed some light on the
10 other side of the issue, my side. And, therefore,
11 I felt it appropriate to send the letter. And, I
12 also felt it appropriate to carbon copy David
13
Shelton on all copies of it. So, I guess he
14 received a package of 20 or 30 some letters some
15 day, all identical, but addressed to the different
16 neighbors in the neighborhood.
17 Q In this letter, you make a statement that
18 your neighbor has worked to create a certain
19 frenzy in the neighborhood. What is it that
20 you're referring to?
21 A In the conversations that I had with
22 neighbors, we were, I was told that the
Sheltons
23 had been inviting people over to their house.
Susi
24
Shelton had run over to our new neighbors, the
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1339
1
Neal's next door, and started a conversation, have
2 you heard the air conditioning unit? And then,
3 that, and the visits down to the Village Hall for
4 the Tuesday meetings. And then, the article that
5 ultimately came out in the "Pioneer Press", it
6 was, this was becoming a cause
celebre. The
7 project, in and of itself, was a large enough
8 project in the Village. Actually, there were two
9 big projects going on at the time, ours and the
10 one down the street. So, we were somewhat visible
11 and now, all of a sudden, the neighbors were being
12 brought into this. Facts were being thrown about,
13 statements were being made, and the neighbors, we
14 were, we had not yet moved into the neighborhood
15 and we, I, along with my wife this time, so it's
16 we, were very concerned about moving into the
17 neighborhood on a bad foot. We didn't want our
18 neighbors to think we were building a house,
19 putting a wall around it, and that was it. So, I
20 was concerned that the perception that the
21 neighborhood might have of me or my family would
22 be somewhat skewed improperly. And, also felt
23 that it was important that I communicate with them
24 in some fashion, since now Mr.
Shelton saw fit to
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1340
1 include them in this conversation. So, the frenzy
2 was that all of a sudden, people are now involved
3 with half facts or partial facts, or bits and
4 pieces of information, and were signing documents
5 that were generic documents, that really didn't
6 have any, they weren't really clear on what the
7 problem or the programs were to try and address
8 them.
9 Q And, in this letter, Exhibit No. 38, you
10 describe some of the things that were done toward
11 sound attenuation, with the statement, "We have
12 done all these things." And, indeed, you had done
13 those things, correct?
14 A That's correct.
15 Q Looking in the third paragraph. And, you
16 were concerned that these neighbors weren't aware
17 that you had taken these steps?
18 A I wasn't sure what the neighbors were
19 aware of. I was aware that the
Devers were
20 unaware of what actions we had taken. And, I
21 assumed that, I made the assumption that if Bill
22
Devers wasn't aware, other neighbors may not be
23 aware. And, therefore, it probably didn't hurt to
24 make sure everybody was brought up to the same
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1341
1 level of understanding and awareness.
2 Q Now, showing you Exhibit No. 45, which is
3 a letter that is dated September 14th, 1994 from
4 David
Shelton and Robert Julian to you. This one,
5 showing c.c.'s to Doug
Williams, the Winnetka
6 Village counsel, and Greg
Zak. Did you receive
7 this letter?
8 A Yes, I did.
9 MR. DIVER: Might I have a copy of that,
10 Bob? I don't seem to find a copy in my file. Do
11 you have it?
12 MR. CARSON: Yes.
13 MR. DIVER: Thank you.
14 BY MR. CARSON:
15 Q I'm looking for the reference here. It
16 states, in Exhibit No. 45, bear with me one
17 second. It states, in the second paragraph, "You
18 have essentially ignored us", concerning their
19 complaints regarding the sound from your air
20 conditioner. Is that true? Were you essentially
21 ignoring their complaints?
22 A Quite the contrary. We were trying to
23 address the complaints in a thoughtful,
24 constructive fashion. And, continued to work with
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1342
1 David
Sheltons' chosen consultant, Al Shiner, and
2 I worked with Brad
Mautner and I felt that Shiner
3 working for
Shelton would be apprising him of
4 either progress, steps or information as it arose.
5 And, occasionally, would talk to the
Sheltons.
6 And, their first comment was, you aren't doing
7 anything. And, I would try to give them an
8 update. I didn't see fit, at this point, to even
9 paper the trail.
10 Q Showing you now what has been marked
11 Exhibit No. 44, a letter dated September 15, 1994
12 addressed to David
Shelton and Robert Julian. And,
13 this one, Exhibit No. 44, by the way, has a
14 handwritten
P.S. to Mr. Zak. You did send this
15 letter, without that
P.S., to Mr. Shelton and Mr.
16 Julian?
17 A That's correct.
18 Q And, this was in response to Exhibit No.
19 45?
20 A That's correct.
21 MR. DIVER: Madam Hearing Officer, has
22 Exhibit No. 44 been admitted?
23 THE COURT: I'll check.
24 MR. DIVER: Are you seeking to have it
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1343
1 admitted, Bob? I'm not.
2 MR. CARSON: Yes, I will. I thought it
3 was in, but I thought --
4 MR. DIVER: My records indicate that it's
5 not.
6 THE COURT: Exhibit No. 44 has not yet
7 been introduced.
8 MR. DIVER: Right.
9 BY MR. CARSON:
10 Q Exhibit No. 44, is that a true and
11 correct copy of a letter that you sent to Mr.
12
Shelton and Mr. Julian, excluding, for purposes of
13 this question, the
P.S. to Mr. Zak?
14 A 44 is a copy of a letter sent to Greg
15
Zak, but it's a copy of a letter, the content of
16 which was sent to David
Shelton and Bob Julian.
17 Does that help?
18 Q Yes. You sent a copy of the letter also
19 to Greg
Zak?
20 A Yes. What I have, 44, at least in front
21 of me, is the copy of the letter sent to Greg
Zak.
22 The letter sent to David
Shelton and Bob Julian is
23 the same text, except for the postscript,
24 handwritten postscript.
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1344
1 Q And, this letter was sent in response to
2 the letter which is Exhibit No. 45?
3 A That's correct. The letter dated
4 September 14, 1995.
5 MR. CARSON: Move for the admission of
6 Exhibit No. 44.
7 MR. DIVER: No objection.
8 THE COURT: Exhibit No. 44 is entered
9 into evidence.
10 BY MR. CARSON:
11 Q According to this letter, you make the
12 statement, in the closing or on the second page,
13 that you had been informed that you were not in
14 violation of any applicable statute, code, or
15 regulation. Is that correct?
16 A That's correct.
17 Q You were so informed at --
18 A No, I was informed prior to that,
19 partially through my conversation with Ken King
20 and Ann
Kirshner, that we were not doing anything
21 wrong.
22 Q Did you have occasion to speak with
Susi
23
Shelton again on the subject of the sound from
24 your air conditioner in or about the fall of 1994?
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1345
1 A I believe we talked in front of Hoover
2 Woods School prior to, there was some sort of
3 event, the kids walk-a-ton or some sort of kids
4 event that was taking place.
5 Q And, was anybody else present for that
6 conversation?
7 A Lots of people around, our kids were
8 around, but the conversation would have been
9 between
Susi Shelton and me.
10 Q And, what did she say to you and what did
11 you say to her in that conversation?
12 A It started out very friendly, saying that
13 I hope we can get this resolved. I said well,
14 we're working on it. And then, she immediately
15 said well, I don't know that this is going to
16 work. We really need to get this thing off. I
17 said, we're taking these steps. We'll be, we're
18 working on an enclosure to muffle the sound and,
19 you know, this should resolve it. We're working
20 with the appropriate -- we're working with people
21 who seem to know what they're doing. I told her
22 that, you know, if it doesn't work, I don't know
23 where else to take this thing. We'll just have to
24 let the authorities tell us what appropriate steps
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1346
1 need to be taken to, what levels are appropriate.
2 Q Did you ever make a statement to
Susi
3
Shelton, either in that conversation or any other
4 time, we'll see you in court, or words to that
5 effect?
6 A No, the last thing I wanted to do was
7 turn this into a legal matter. I was hoping to
8 resolve this in a very friendly, amicable,
9 neighborly way. As a matter of fact, as I
10 mentioned earlier, I didn't take any steps to try
11 and paper this trail. I was trying to let actions
12 speak louder than written words, and take the
13 steps to try to correct the problem that was
14 bothering the
Sheltons.
15 Q In the
Shelton and Julian letter, Exhibit
16 No. 45, there's a statement that, of their
17 intention to take the matter to the Village of
18
Winnetka, to take the necessary steps to remedy
19 the situation. Did they, to your knowledge, did
20 they do so?
21 A I don't know if they took it. They,
22 there was a meeting -- I'm not sure if they took
23 it there. There was a meeting.
24 Q Did you learn that the Village of
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1347
1
Winnetka was to address this issue?
2 A In January of 1995, I received a call on,
3 I believe, either a Friday or a Monday, I can't
4 remember which, from Doug
Williams, who was the
5
Winnetka Village Manager, who asked me if I had
6 received notice of a meeting that was going to be,
7 I guess it was a discussion session or some sort
8 of a meeting that was going to be held regarding
9 air conditioners and sizes and those sorts of
10 issues. I said I had not received anything. He
11 asked me if I was going to be present. I said
12 well, I've got other, I've got a conflict at that
13 time, I'm not going to be able to make it. But,
14 that I wish I had received notice previously so
15 that I could have made other plans. But, I asked
16 him if it would be, if I could submit a letter or
17 some sort of a statement which helped the Village
18 council, or whoever was going to be attending that
19 meeting, in understanding my position, and the
20 chronology, and what had been done. And, Doug
21
Williams said that he thought that would be very
22 helpful. And so, for the balance of the day, I
23 put together, to the best of my recollection, a
24 chronology and a letter which presented the facts
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1348
1 relating to the history of the installation of
2 this system.
3 MR. CARSON: If I could address a
4 question to Madam Hearing Officer. Respondent's
5 Exhibit No. 7, according to my notes, was
6 introduced at some point, but I don't believe it
7 would have been admitted into evidence yet. I
8 show it's admitted into evidence.
9 MR. DIVER: Yes.
10 MR. CARSON: That would explain, for some
11 reason I don't have a copy that has the sticker on
12 it. I just have this.
13 MR. DIVER: Do you have an extra copy of
14 this?
15 MR. CARSON: Isn't that the same thing?
16 MR. DIVER: I don't believe so. I
17 believe 7 was Mr.
Shelton's response to this.
18 THE COURT: Respondent's Exhibit No. 7
19 has been introduced, but not yet admitted into
20 evidence.
21 MR. DIVER: Respondent's Exhibit No. 7 is
22 introduced and not admitted.
23 THE COURT: Correct.
24 MR. CARSON: Can we go off the record for
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1349
1 just a moment?
2 THE COURT: We'll go off the record to
3 discuss exhibits.
4 (Off the record)
5 BY MR. CARSON:
6 Q I'm going to tender to the witness now
7 Respondent's Exhibit No. 7. I have a copy for your
8 Honor.
9 THE COURT: Thank you.
10 MR. CARSON: And, counsel has already
11 been provided the copy.
12 MR. DIVER: That's the 1-10-95 letter?
13 MR. CARSON: Yes, it bears a date of
14 January 10, 1995.
15 BY MR. CARSON:
16 Q Mr. Crown, this is a transmittal letter
17 with an attachment bearing the date of January 10,
18 1995, addressed to Douglas G.
Williams, is it not?
19 A Yes, it is.
20 Q And, that bears your signature?
21 A Yes, it does.
22 Q And, the attachment is a collection of
23 correspondence, including another letter that you
24 wrote dated January 10, 1995, addressed to the
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
1350
1
Winnetka Village Council, is that correct?
2 A That's correct.
3 Q And, did you transmit this information to
4 Douglas G.
Williams on or about January 10, 1995?
5 A Yes, I did.
6 Q Who is Douglas G.
Williams?
7 A He's the
Winnetka Village Manager.
8 Q And, what was the purpose for your
9 sending this information to Mr.
Williams?
10 A This package of information was sent in
11 response to the call I received from Doug
Williams
12 regarding the study session to be held, I think,
13 on or maybe it may well have been on the night of
14 January 10th, at the Village of
Winnetka, which
15 was going to involve sound, noise, air conditioner
16 sizes, a whole host of issues. And, I just wanted
17 to have at least our position, coupled with what I
18 thought were some of the communications leading up
19 to it, put in one, concise package so that the
20 Village council had a complete picture of what was
21 going on.
22 Q And, in referring to the five page
23 letter, which is attached to the transmittal to
24 Mr.
Williams, that's a letter that you sent to the
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1
Winnetka Village Council on or about January 10,
2 1995?
3 A I sent it to Doug and asked him to
4 distribute it to the Village Council.
5 Q I see. And, the recitation of events that
6 is set forth in this letter, is that an accurate
7 recitation of the events, as you perceived them,
8 as of July 10, 1995?
9 A Yes, to the best of my knowledge, that's
10 an accurate recitation.
11 MR. CARSON: Move to admit Respondent's
12 Exhibit No. 7 into evidence.
13 MR. DIVER: No objection.
14 THE COURT: Respondent's Exhibit No. 7 is
15 entered into evidence.
16 BY MR. CARSON:
17 Q Was the matter addressed by the Village,
18 to your knowledge?
19 A When you say addressed, was it discussed?
20 Q Well, did you participate in a meeting
21 with Village officials?
22 A We're talking two different -- the study
23 session, which occurred around the January 10th
24 date, I only participated by means of the letter.
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1 At the time, I don't know whether I talked to Doug
2 before or after it, but I had suggested that I was
3 more than willing, and encouraged him to pull us
4 all together; the
Sheltons, me, whomever else was
5 an interested party at the Village. I said, let's
6 sit down and talk about this. I'm not trying to
7 sidestep the issue, I'd like to sit down and make
8 sure everybody is on the same page. I recommended
9 to Doug that I would come and meet with him any
10 time, any place, anywhere, to discuss the matter.
11 And, he took me up on my offer, and requested a
12 meeting to be held at Village Hall shortly
13 thereafter.
14 Q Showing you Exhibit No. 35 which, I
15 believe, is already in evidence.
16 MR. DIVER: The date, I'm sorry?
17 MR. CARSON: This bears a date of January
18 21, 1995. Does this document deal with a meeting
19 that you attended?
20 A Yes, it deals with a meeting that, I
21 believe, was on the 17th of January, at
Winnetka
22 Village Hall.
23 Q Okay. And, showing you Exhibit No. 54,
24 which I also wish to confirm has been entered into
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1 evidence?
2 THE COURT: Correct.
3 MR. CARSON: Thank you.
4 BY MR. CARSON:
5 Q Is that your response?
6 MR. DIVER: The date of this?
7 MR. CARSON: This bears the date of
8 January 27, 1995.
9 A I'm sorry, the question?
10 BY MR. CARSON:
11 Q Is Exhibit No. 54 your response to Mr.
12
Shelton's summary of the meeting, which is
13 contained as part of Exhibit No. 35?
14 A Yes. David
Shelton had, I guess, put
15 together a two-page memorandum as to his
16 understanding of what had occurred. And I, at
17 least responding to those portions relating to the
18 per Steve Crown sections, wanted to at least go on
19 record as not agreeing with them in their
20 entirety, as much as I felt Mr.
Shelton had either
21 misunderstood or had improperly conveyed in the
22 text what had been said.
23 MR. DIVER: Bob, do you have an extra copy
24 of 54?
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1 MR. CARSON: Yes.
2 BY MR. CARSON:
3 Q At that meeting with the Village on
4 January 17, 1995, who was present
5 A Really, it was at the, the meeting was at
6 the Village Hall and Peter
Krunkshank ( ph), Katie
7
Janega, Doug Williams, those were the parties
8 representing the Village. I was there, Bob
9 Julian,
thoe neighbors to the north of the
10
Sheltons, and David and
Susi Shelton were present.
11 Q And, at that meeting, did you make any
12 promise of specific actions as stated under future
13 actions on Exhibit No. 35, per Steven Crown?
14 A Correct one thing. Al Shiner was tied in
15 by phone at that meeting because he was unable to
16 attend on such short notice. Sorry. In answer to
17 your question, as to the Number 4, future actions,
18 is that what you're talking about?
19 Q Yes.
20 A No. In fact, after having a fairly
21 lengthy discussion with all parties and explaining
22 what the steps were as it related to what is now
23 called the quiet flow panel pen, this is actually
24 consistent with what David
Shelton understood at
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1 the end of the meeting, which I corrected him on
2 at the meeting also; that we did not say we would
3 take whatever steps are necessary to comply with
4 the standards at the time. There was no
5 understanding, at least in my mind, that the
6 standards were or were not applicable. It was
7 unclear. Also, it was also unclear because Mr.
8
Shelton had suggested, well, maybe you, if you get
9 the readings to be 10% above the standards, that
10 might be acceptable. I mean, a lot of things were
11 being thrown around at the time, and it just
12 didn't seem prudent or appropriate to accept
13 anything, in addition to when she asked me to turn
14 the unit off until we could come to a solution,
15 none of which were satisfactory. And, I also told
16 him so at the meeting. And, I just wanted to make
17 sure that it was clear as to what my position was.
18 I believe Mr.
Krunkshank, Ms. Janega and Mr.
19
Williams, you know, all heard the same thing that
20 I had.
21 Q Your position, then, was what?
22 A That we were taking steps to try and
23 address the sound issue. That we were going to be
24 putting an enclosure around the unit, that the
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1 enclosure was designed by an acoustical sound
2 expert that both, found by Mr.
Shelton, that we
3 had also employed. That, we had yet not
4 constructed the surrounding enclosure, nor taken
5 readings, nor understood what the effects were.
6 And, that it would be premature to do anything, at
7 this point, until we had the benefit of that
8 information. And then, make a judgment and go from
9 there.
10 Q When you stated that the concept that was
11 mentioned at that meeting, the 10% above the IPCB
12 standards might be acceptable. Who made that
13 statement?
14 A David
Shelton. He threw it out as a
15 possibility. I'm not sure it was actually an
16 offer on the table, but he said I might be willing
17 to even accept 10% above. And, quite honestly,
18 I'm not sure if it was a serious offer on his
19 part. I certainly didn't take it as a proposal.
20 And, I think it was more just conversation.
21 Q At that time, this acoustical enclosure
22 had not been constructed, I take it?
23 A It wasn't completely in place, it was on
24 order. It may well have been delivered to the
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1 site because it was wintertime. I don't think it
2 had been constructed. It may have been delivered
3 in February, I'm not sure what the timing was, in
4 fact.
5 Q By the spring of 1995, was the acoustical
6 enclosure installed?
7 A Yes, it was constructed before the start
8 up of the next season.
9 Q Okay. Showing you Exhibit No. 36, which,
10 I believe, is already in evidence. This is a
11 letter dated March 16, 1995 from David
Shelton to
12 you.
13 THE COURT: And, I show Exhibit No. 36
14 has not been introduced, to date.
15 MR. CARSON: One moment, please.
16 THE COURT: Let's go off the record to
17 change court reporters.
18 (WHEREUPON, the following
19 proceedings were recorded by
Vernita
20
Powell.)
21
oOo
22
23
24
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1 CERTIFICATION
2
3 I, VERNETTA MCCREE, A Certified
4 Shorthand Reporter, doing business in the State of
5 Illinois, certify that I reported in shorthand the
6 testimony taken in the above-entitled matter, and
7 that this constitutes a true and accurate
8 transcription of my shorthand notes so taken as
9 aforesaid.
10
11
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13
14
15
16 __________________________________
17 VERNETTA MCCREE, CSR 083-001830
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HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984