RECEIVEE~
BEFORE
~t~fl,Ij
j~tif
ION CONTROL BO9~t~
OFF!’~
L~1
1(nIIIk\~1/~
JUL31
2003
BAJ(BARASTUART
Y3lIR~I
RONALD
STUART
U
LI)~J
STATE OF
ILLiNOIS
Complainants
)
Pollution
Control Board
V.
)
PCBO2-164
FRANKLIN FISHER
)
PHYLLIS FISHER
)
Respondents
)
July 29, 2002
COMPLAINANTS RESPONSE TO RESPONDENTS MOTION TO COMPEL
COMPLIANCE
WITU
DISCOVERY
Complainants
Barbara
Stuart and
Ronald Stuart are hereby
complying to respondents
request to compliance
with discovery, pursuant to
35
Iii.
Adm.
Cod
101.610 and in
support thereof,
states as follows:
RESPONDENTS INTERROGATORY REQUEST
FOR PRODUCTION
Please
note:
It was an oversight on the
part
of
Complainant, Barbara Stuart who
did not
have the previous sent responses, sworn under oath or notarized.
Not being an attorney
and trying thebest to follow all regulations, I simply failed to complete that requirement
ofthe IPCB.
However, I will be willing to sign an aftadavit that all previous filed
responses to Mr. Harding were the truth, and were mailed on the dates as stated on the
certificates ofservice.
I apologize to the board for my lack ofthoroughness.
1.
On October 10, 2002,
Complainants responded to Respondent’s Interrogatory 23,
providingthe name,
address and telephone number ofGregory Zak, as an
expert/opinion witness, but failed to
provide, as requested, the expert’s report,
stating that is was
still being prepared.
Response:
Production ofInformation Section 101.6 14.c.
All discovery must be
completed at least
10 days prior to the scheduled hearing in the proceeding unless the
bearing officer orders otherwise.
After to speaking to Mr. Zak
about
typing up his
report for the board, he wishes to inform Mr. Halloran and Mr. Harding that there is
no report as ofyet.
Mr.
Zak knows that no hearing date is set, although the one in
January 2003 was cancelled.
He is very much involved in this case.
Because I am in
a financial situationMr. Zak wanted to hold off making the report, hoping that the
respondent Mr~
Fisher would agree to offer a type ofsettlement and a hearing would
not be necessary.
The report is costly and Mr.
Zak wanted to save me the expense.
However, he will comply with Mr.
Halloran’s request ifbe decides to set a deadline.
Mr. Halloran ifyou need to speakwith Mr. Zak please feel free to contact him. 217-
483-3507.
He is quite busy now due to other pendir~g
noise pollution cases in courts
in Illinois.
I am sure he will be ableto settle on a final date ofa report.
/
-J
1.
Contacting the expert directly in early April of2003, Respondent’s attorney was
told that no report had been prepared, but that Mr. Zak had been retained.
Response: Mr. Zak stated to me, Barbara Stuart, that Mr. Harding never once asked him
about a report.
2.
On April
25,
2003
Complainants broadcast to Dorothy Gunn, Bradley Halloran,
Bobby Petrungarro and GregZak a libelous letter misrepresenting the content of
that conversation and alleging unethical conduct against Respondent’s counsel,
including violation ofan inapplicable rule which some ofthe recipients may not
have knowwas applicable.
Response:
This letter sent to the above was not libelous.
Mr.
Harding’s conduct was
unethical, and the rule mentioned is applicable.
Mr. Zak was contacted about the above
matter and he has offered to sign an affadavit regardingthe conversation between he and
Mr. Harding on that day in April.
Mr. Zak is a man ofhigh standards, and takes his job
seriously and always
obeys the rules.
3.
Given Respondent’s inability to obtain Mr. Zak’s report without running the risk
offurther such conduct by Complainants and the damage to an otherwise
exemplary reputation for ethical conduct whichwould naturally result from
further informal,
although legitimate, attempts to obtain the report, an order
compelling production ofthe report seems the only appropriate alternative.
Response:
We cannot produce a report which Mr. Zak has not yet written.
Although he
has the necessary information and readings regarding this case.
Again it is solely up to
the our hearing officer Mr. Halloran to
make this decision on a deadline for Mr. Zaks
report.
It is the right ofthe Illinois pollution control board and our bearing officer
to
delegate what type of action should be sought.
Again Mr. Zak has been holding off
typing up the report hoping a settlement would be reached by the respondents,
saving us
money, ifthis case was not to go to a hearing.
To summarize the documents which were sent alongwith the “Interrogatories and
Request for Production to Complainants”, the following is a list given to Mr. Harding.
Exhibit A: Sgt. Nudera,
Evidence tech Will County Sheriff Office no. 2001-013853
Exhibit B: Officer Spiegel, Will County SheriffDept.
Incident report 7-26-02
This was the day Mr. Fisher made threatening remarks to me and aneighbor.
Exhibit C:
Petition ofneighbors wanting respondent to
stop using cannon.
Exhibit D:
Tape from the Will County dept.Land Use and recording ofthe cannon noise
from my property.
Note:
Mailing tape to Mr.
LLarding before August 20, 2003.
Exhibit E
: Letters written by Dr. Battista, on behalfofmy son Michael Are actually two
letters.
One from Dec. 2002 requesting Mr. Fisher to stop Using the cannons requested
by Dr. IBattista to the Will County States Attorney office in Juliet, Illinois.
Michael’s
hearing ability decreased over the summer of
2
Exhibit E:
(cont)
2002 when the cannonswere operating. His hearing loss is
Sensorneural.
Letter Was sent to the Will County States attorneys office.
Exhibit F:
Letter from Veterinarian stating sedation has been prescribed for two healthy
Golden retrievers who are terrified ofthe gunshot like sound from cannons.
Exhibit
G:
Copy ofC.T. head report to rule out patholology from Dr. Battista.
Also
Were 2 Audiograms from Ingalls Calumet City Audiology department.
And
there are 3 audiograms and consultation reports regarding Michael’s hearing
loss from Dr. Battista to Dr. Lofchy.
Dating up to 9-27-02.
Exhibit H:
A letter from Dr. Marquis who treats my sons for
problems.
He was also
treating me for anxiety and problems related to the cannon noise.
Exhibit I:
Letter from Dr. Trudeau (veterinarian) who treated dog Samantha who died
Due to compressed discs in the back.
She died the very same day that Mr.
Fisher startedthe cannons.
The purpose ofthis letter is to show bow petrified
My dogs are ofthe propane cans. It is not being used to compensation reasons
Because nothing can ever replace her.
Exhibit J:
Anotherletter from Dr. Battista to the States Attorney Office requesting
Stopping ofthe cannons for Michael.
Michael was complaining ofringing
In the ears in October.
At the visit with Dr. Battista in December of2001.
Michaelhas not been able to go outdoors during the summer when the
Cannons are running.
It is painful for him as well as damaging to his hearing.
Exhibit K:
Unfortunately I was not able to correlate my cam corder recording ofthe
Decibel levels ofthe cannons and transfer them on a tape for this exhibit
Will Probably haive to be eliminated.
Although Mr.
Zak can provesound
Decibel levels from Propane Cannons.
Comment:
I
will
be
sending
a copy ofthe
Will
County
Sheriff office
withthe decibel,
levels ofthe cannons.
The copy ofthe tape
will be
sent to Mr. Harding before
the August
20, 2003 teleconference.
As far as Greg Zak and his report, Mr. Halloran please notify him and establish a cut off
time for obtaining a report. I really don’t know his schedule.
Thank you for your help in
this situation.
This should complete all my obligations to establishproof and documents for discovery.
However, I will be submitting datawhich I have obtained from reliable sources including
Universities ofAgriculture, IDNS, theDept. ofAgriculture, Orinthologists, and the
Institute for hearing disorders.
Along with studies and documented findings related to
hearing problems. I will be requesting to use this information to present actual facts
t~
the
board.
Copies will be sent to Mr. Harding, Mr. Halloran, the IPCIB, aswell as the States
Attorney’s office.
I will have this information out to everyone.before our next tele
conference on August
20th~
3
ALL DOCUMENTS HAVE BEEN PREPA1~EDON RECYCLED PAPER
Certificate ofService
We the complainants, Barbara Stuart and Ronald
Stuart, certify that on July 29, 2003 we
served the attached responses for request to compel compliance to certain discovery,
to
the attorney David Harding, representing the respondents Frank Fisher and Phyffis Fisher.
All responses were sent to Mr. Harding, Mr. Halloran, Dorothy Gunn, GregZak,
and
Bobby Petrungarro ofthe Will County States Attorney’s office in Joliet, Illinois.
All
documents were mailedvia U.S. mail at the Beecher Post Offic
eecher, 11160401
on
July 29, 2003.
Names and addresses ofrecipients are listed ~b~elow.
~
7-27~’3
(‘
Barbara and Ronald Stuart
213 E.
ComingRd.
Beecher, Illinois 60401
798-946-9546
Bradley P. Halloran
Illinois Pollution Control Bd.
James R. Thompson Ctr.
Suite l1~500
100 W. Randolph
St.
Chicago,
Illinois 60601
David Harding
Lopez and Harding
Attorney for respondent
100 N. La Salle St.
Chicago, Illinois 60602
Dorothy Gunn
Clerk ofthe IPCB
J. Thompson Ctr.
Suite 11-500
100 W. Randolph
Chicago, 11. 60601
Will County States Attorney Office
Bobby Petrungarro
Assistant States Attorney
Will County States Attorney Office Courthouse
14 W.
Jefferson
Room 200
Joliet,
Ii.
60432
Gregory Zak
Noise Solutions
1-217-483-3507
All information provided on
recycled paper
Barbara Stuart
date
R~na1d
Stuart
date
Case no.
PCB 02-164
Mailed to:
PROOF OF SERVICE
I, the undersigned, on oath (or affirmation) state that I have served on the date ofJuly 29,
2003,
the attached response to compel compliance with certain discovery, by U.S. Mail at
the Beecher post office, Beecher, illinois 60401
having proper postage, upon the
following persons:
David Harding
Attorney for:
Franklin Fisher and
Phyliss fisher
100 N. LaSalle St.
Chicago, Illinois 60~02
Bradley P. Halloran
Hearing officer
IllinoisPollution Control Bd.
James R. Thompson Ctr.
100 W. Randolph St.
Chicago, Illinois
60601
Will County States Attorney Office
Bobby Petrungarro
Assistant State’s Attorney
14 W. Jeffereson,
Joliet, illinois
60432
Gregory Zak
Noise Solutions
Chatham,
Illinois
1-217-483-3507
Barbara
Stuart
7-Z--~
(Complainant)
date
Case no.
PCB 02-164
Notary Seal
SUBSCRIBED AN)
SWORN
0 BEFORE ME
this ~
2003
N~4ry
Public
Dorothy Gunn
Clerk ofIPCB
Suite 11-500
100 W. Randolph
J.
Thomspson Ctr
Chicago, Illinois
60601
Ronald Stuart
~L)
RECEIVED
CLERK’S
OFFICE
CONTROL BOARD
JUL
3
1.
2003
STATE OF ILLINOIS
Barbara
Stuart
and
Pollution
Control Board
Ronald Stuart,
Complainants
)
)
v.
)
No. PCB 02-164
),
Citizen Enforcement
Franklin
Fisher
and
)
~
Phylliss Fisher,
Respondents
)
RESPONSE FOR REQUEST FOR ADMISSION
In compliance with provision of35 Ill.Adm.Code 101.618, A thruF.
the complainants,
Ronald
Stuart and Barbara
Stuart are responding with the respondents second request for
admission.
Previous responses sent on or before April 30, 2003.
1.
Coniplainant, Barbara Stuart, was the only person to contact Mark Schneidewiak of
the Will County Agriculture Department regardingFranklin Fisher prior to Franidin
Fisher’s receipt ofan anonymous letter, a copy ofwhich is attached here to as Exhibit
A.
Answer:
Yes, at
one time over ayear ago, I did contactMark
Schneiderwiak, however, I haveno
ideaifI made that contact prior to the receiving ofan
anonymous letter (Exhibit A)
writtento
Franklin Fisher.
This is a rather broad assumption ofthe respondent.
2.
Complainant, Barbara Stuart, authored and or instigated the authorship ofan
anonymousletter, a copy ofwhich is attached hereto as Exhibit A.
Final
Answer
Denial
: No I did not author or instigate the authorship of this alleged letterlabeled
exhibit A.
This is clearly an assumption ofthe respondent.
I have no ideawho wrote this
alleged letter to Mr. Fisher.
3.
Complainant Barbara Stuart, sent or instigated the sending ofan anonymous letterto
Franidin Fisher, a copy ofwhich is attached hereto asExhibit A.
Final Answer
Denial
I did not instigate the authorship, author, or send this letterto Franklin Fisher. Againthis
is clearly an assumption made by the respondent.
)
)
)
1
4.
The letter to the editor, a copy ofwhichis attached hereto as Exhibit B, was authored
by Complainant, Barbara Stuart, on or After September
5,
2002.
Answer
Yes I did writethis “letter to the editor”,
however, the above
request for admission is
irrelevant to the case at hand which is the propane cannons being a noise nuisance and
taking away our enjoyment ofproperty rights, and the cannonsbeing athreat to our sons
sensorneural hearing loss increase.
5.
The letter to the editor, a copy ofwhich is attached hereto as Exhibit C, was authored
by Complainant, Barbara Stuart,
on or after September 5, 2002.
Answer
Yes, I did write this letter, however the above requestfor admission is irrelevant to the
case at hand which is regarding the impulse noise coming from the propane cannons.
6.
The letter to the editor, a copy ofwhich is attached hereto as Exhibit D, was
authored by Complainant, Barbara Stuart, on or ~fterSeptember
5,
2002.
Answer
Yes, I did write this letter, again the above
request for admission is irrelevant to this
pending case before the Illinois Pollution Control Board.
7.
The letter to the editor, a copy ofwhich is attached hereto as Exhibit E, was
authored by Complainant, Barbara Stuart, on or after September 5, 2002
Answer
Yts, I did writethis letter to the editor, however it is irrelevant to the case at hand with
the PCB
regarding the nuisance ofnoise.
Which is due to the possible violation of
Title VI (415
ILCS 5-23, 5-24.
The above
letter to the editor had no relevancy to
the issue at hand in this case.
8. On July 21, 2002,Complainant, Barbara,
distributed copies ofatwo page letter, a copy
ofwhich isattached hereto as Exhibit F, to each person occupying property,
either as
residence or business, abutting the land which is the home of
Franidin
Fisher
and to
various other persons in the immediate vicinity.
Answer
Yes,I did distribute a two page letter to certain nearby residents affected by the noise.
Some ofthese people signed a petition complaining ofthe noise. Accordingto the “First
Amendment in the Constitution oftheU.S.”, I have the right to freedom ofspeech.
My
intentions were for the benefit ofmy neighbors.
I considermyself a”good” neighbor.
Many people were unaware ofwhere the source ofnoise was coming from.
2
9.On various dates since August 8,
2001 and continuing through thepresent,
Complainant, Barbara Stuart has solicited various persons to take legal action against
Franklin Fisher for various causes.
Answer:
Objection.
What does Mr. Harding mean by “various persons~’. I contacted some
governmental officals regardingthe noise, because that is my right to do so.
It was the
Will County States Attorneys office that decided to become involved in this case for
reasons I do not evenknow.
10. Prior to appearing on the “Judge Mathis” television prograni, Complainants, Ronald
Stuart and Barbara Stuart, signed a document in substance identicalto that attached
hereto as Exhibit G.
Answer
Denial.
As stated before we have no such
document/s
in our possession and do not recall
signing it.
After the “small claims”
case was
dismissed
we felt these documents no
longer were needed.
We
do not feel comfortable stating
we signed the above documents
if we do not have
them in
our
possession. Again the
small
claims
case
was
given over to
the Judge Mathis Show for a request for damages which our dog sustained on 8-8-0 1 the
first
morning Frank Fisher used
his propane cannons.
Our dog
sustained fatal back
injuries when she heard the cannons go
off.
Note:
the
laws ofthe “Judge Mathis
Show”, are laws constructed and followed by the State ofCalifornia.
The case is closed.
3
All documents filed on recycled paper
PROOF OF SERVICE
I, the undersigned,
on oath (or affirmation) statethat I have served on the date ofJuly 2.9,
2003, the attached response for request for admission, by U.S. Mail at the Beecher post
office, Beecher, Illinois 60401
having proper postage, upon the following persons:
David Harding
Attorney fOr:
Franklin Fisher and Phyliss Fisher
100 N. LaSalle St.
Chicago, Illinois 60602
Bradley P. Halloran
Hearing officer
Illinois Pollution Control Bd.
James R. Thompson
Ctr.
100 W. Randolph St.
Chicago, illinois
60601
Will County States Attorney Office
Bobby Petrungarro
Assistant State’s Attorney
14 W.
Jeffereson,
Joliet, illinois 60432
Gregory Zak
Noise Solutions
Chatham, illinois
1-217-483-3507
N9ary Public
SUBSCRIBED AN)
SWO
TO
BEFORE ME this~~ay
2003
Dorothy Gunn
Clerk ofIPCB
Suite 11-500
100 W. Randolph
J.
Thomspson Ctr
Chicago, Illinois
60601
Notary Seal
July 29, 2003
(~P)fl(f~111N1
/ii\
U
To: Bradley
P. Halloran
\J
U
CLERK’S
OFflCF
Hearing Officer
1
2003
Illinois Pollution Control Board
JUL
~
100 W. Randolph St.
STATE OF ILLINOIS
James R. Thompson Ctr.
polluttOn Control
Board
Suite
11-500
Chicago, Illinois 60601
From:
Ronald and Barbara Stuart
PCB no.
02-164
213 E.
Corning
Rd.
Beecher, Illinois 60401
708-946-9546
Dear Mr. Halloran,
Per your request from our last teleconference in July, I am sending to you the answersto
the request for admission, (second request), and the request for compliance for discovery
regarding documents from Mr. Harding attorney for Frank and Phyllis Fisher.
I
am relieved that you want to see these papers,
because quite frankly I am not getting
much cooperation from neither the Franklin Fisher or Mr. Harding.
Not being an
attorney and trying to represent one’s selfon a case to say the least is extremely difficult.
I have no choice, I must do this due to financial situations.
Mr. Harding really did not answer many ofmy discovery requôsts.
To date I
still do not
know the operator ofthe farm ofFranklin Fisher.
I
also do not have any proof ofrecords
ofbettercrop yields due to using the cannons.
Or a site map ofhis property.
Mr. Fisher has not told the truth on a few ofour discovery requests.
One being: not
knowing any neighbors in a 25 miles radius using the cannons.
There are three produce
growers Vos, and Bultema’s (both less than
5-8 miles away) who have thosen not to use
cannons out ofrespect oftheir neighbors. And these growers also feel the cannons are too
loud and annoying near their homes.
He (Mr. Fisher) has also denied not knowing the
Barton Family who lives near his property some 200 feet away from his home.
These
people (the Barton’s)
are related to Mr. Fisher.
I am very distraught and disgusted by the way this discovery is going.
Mr. Fisher is not
being honest.
The attorney Mr. Harding is either being lied to orjust not cooperating.
Quite honestly I don’t know what or who to believe.
My husband and I have done our very best to honest, forthright,
and cooperative.
I truly
believe that the respondent and his counsel need to give us the same
courtesy and not.
evade questions pertaining to discovery.
We had no
intentions ofthis ordeal lasting this long.
Propane cannons being used in a
mixed farming, but mostly residential area, is cruel to
all residents.
Too many bad
circumstances have occurred to our family and other neighbors due to these
devices.
We want nothing more to expedite this hearing.
I would like to submit to the board all the substantial documents ofimportant
information regarding the effectiveness ofpropane cannons, noise, hearing damage from
intermittent sound,
bird control methods, and documented facts regarding the
alternatives to using cannons.
These are reliable studies conducted at well known
Universities in the Midwest.
I would also like to submit correspondence which I have
with several governmental agencies such as the INDS, the Farm Bureau ofIllinois, and
the Biologist ofthe Will County Farm Bureau, Joseph Rogus. Joe Rogus has written an
up to date explanation ofhow growers are controlling birds from their fields and how
propane cannons are being used less and less as a deterrent source.
Also I have written
reports from Orinthologists regarding studies ofcrows habits, inteffigence, and nature.
This information in my opinion is of great value to this case at hand.
It took me over a
year to research propane cannons etc. It should undoubtedly show ProofofBurden ofthe
many issues at hand regarding the farmer (Mr. Fisher) employing the propane cannons.
These cannons are a nuisance, they are taking away ofenjoyment ofbeing outdoors. I
have one witness who is going to testify she sold her home last year due to the
frightening sound.
Her daughter age
5,
stayed indoors for weeks thinking a man with a
gun was outdoors waiting for herto
shoot her.
Imagine ifyou can what is was like for
this
little girl.
I would like to
send this important information to you before our next
teleconference meeting on August
20th~
I hope the board will feel it is pertinent to the
case at hand.
Please know I respect and admire farmers, it is the cannons I am totally
against.
Thank you for your time.
I look forward to this being resolved.
This is no way to live.
Sincerely,
Barbara
Stuart
