805
1
2 BEFORE THE ILLINOIS POLLUTION CONTROL
BOARD
3
IN THE MATTER OF: )
4 )
DAVID & SUSI SHELTON, )
5 Petitioners, )
)
6 vs. )PCB 96-53
)VOLUME 5
7 A. STEVEN & NANCY CROWN, )
)
8 Respondents. )
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 16th
14 day of July, A.D., 1996 at the offices of the
15 Pollution Control Board, 100 W. Randolph Street,
16 Chicago, Illinois, at approximately 9:00 a.m.
17
18
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20
21
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24
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
806
1 PRESENT:
2
3 FOR THE PETITIONERS: THE JEFF DIVER GROUP
4 BY: MR. JEFFREY DIVER
5 MR. STEVEN KAISER
6 45 South Park Blvd-270
7 Glen Ellyn, IL 60137
8
9 FOR THE RESPONDENTS: GOULD & RATNER
10 BY: MR. RICHARD ELLEDGE
11 MR. ROBERT CARSON
12 222 N. LaSalle Street
13 Chicago, IL 60601
14
15
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HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
807
1 I N D E X
2 D C RED REC
DAVID SHELTON 808
3 925
4
E X H I B I T S
5
OFR'D REC'D
6
Exhibit No. 48 825 825
7 Exhibit No. 47 839 840
Exhibit No. 107 841 842
8 Exhibit No. 45 843 843
Exhibit No. 20 847 848
9 Exhibit No. 43 A, B 852 852
Exhibit No. 19 853 854
10 Exhibit No. 108C 873 875
Exhibit No. 7 879 882
11 Exhibit No. 35 885 886
Exhibit No. 41 891 891
12 Exhibit No. 37 897 897
Exhibit No. 8 898 898
13 Exhibit No. 28 899 899
Exhibit No. 22 905 905
14 Exhibit No. 111 910 910
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16
17
18
19
20
21
22
23
24
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
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1 HEARING OFFICER: Welcome. We will
2 resume proceedings in the case PCB 96-53, the
3 Sheltons versus the Crowns. And, we're in the
4 midst of the direct testimony of Mr. David Shelton
5 for Complainant's case in chief.
6 MR. KAISER: Thank you very much, Madam
7 Hearing Officer. Good morning, Mr. Shelton.
8 MR. CARSON: Would it be okay if I raised
9 a scheduling issue, just because when I saw Mr.
10 Diver walk out, I thought perhaps there's another
11 witness coming. We're trying to determine if
12 we'll be starting our case this afternoon.
13 MR. KAISER: I believe you will be.
14 MR. CARSON: So, you'll probably be done
15 by noonish, you think?
16 MR. KAISER: Yes.
17 MR. CARSON: Thank you.
18 HEARING OFFICER: You may proceed.
19 MR. KAISER: Good morning, Mr. Shelton?
20 A. Good morning.
21 MR. KAISER: Mr. Shelton, you'll recall
22 when we adjourned--
23 HEARING OFFICER: Excuse me, perhaps we
24 should have the re-swearing of the witness.
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1 (Witness sworn)
2 D A V I D S H E L T O N,
3 after having been first duly sworn on oath,
4 deposes and testifies as follows:
5 DIRECT EXAMINATION
6 BY MR. KAISER:
7 Q. Mr. Shelton, you'll recall that when we
8 adjourned late in the afternoon last Friday, we
9 were reviewing a letter dated October 11th, 1993
10 which you had sent to Steven Crown. Do you recall
11 just generally that that was where we were in your
12 testimony?
13 A. Yes, I do.
14 Q. And that we'd covered issues like the
15 test firing of the Crown air conditioner unit in
16 September of 1993 and those matters?
17 A. Yes.
18 Q. And now, we're into October of 1993.
19 And, I want to draw your attention to the first
20 paragraph of the letter dated October 11th, 1993
21 and previously identified for the record as
22 Exhibit 49. And, it states with reference to the
23 air conditioner as follows: "The noise is
24 unbelievable. It penetrates our entire house,
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1 even with closed windows. We actually have
2 vibration from it in our windows and china. And,
3 the sound echos throughout our backyard." Was
4 that, in fact, a true statement on or about
5 October 11th, 1993 concerning the sound eminating
6 from the Crown air conditioning unit?
7 MR. CARSON: Object to the form of the
8 question as leading.
9 HEARING OFFICER: Could you rephrase the
10 question?
11 MR. KAISER: Yes, I could.
12 BY MR. KAISER:
13 Q. Did you write that, essentially, the
14 first paragraph of this letter and, in fact, did
15 you write that entire letter?
16 A. Yes, I did.
17 Q. And, are the things, have you had a
18 chance to review that letter in preparation for
19 your testimony--
20 A. I have.
21 Q. -- here today? And, are the matters set
22 forth in that letter true and accurate?
23 A. They are.
24 Q. Thank you. And, is this, in fact, a true
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1 and accurate copy of the letter that you sent to
2 Steven Crown on or about October 11th, 1993?
3 A. Yes, it is.
4 Q. Thank you, thank you very much.
5 Now, I'd like to move forward -- strike
6 that -- did you have any conversations with Steven
7 Crown in the latter part of 1993 concerning the
8 air conditioning unit?
9 A. I had the conversation the day after the
10 test firing in September.
11 Q. And, was that the telephone conversation
12 you had with Mr. Crown where you called him at his
13 office?
14 A. It was, it was.
15 Q. All right.
16 A. I, along with my wife, subsequently had
17 the conversation I testified to last Friday with
18 Mr. Keller where we discussed relocation of the
19 unit.
20 Q. And, Mr. Keller, again, to recapitulate
21 the testimony, was the construction superintendent
22 for Mr. Crown?
23 A. I don't know his exact title, but it's my
24 understanding that that's the role he was playing,
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1 yes.
2 Q. All right.
3 A. When we didn't hear back from Mr. Keller,
4 who we expected to hear back from about
5 relocation, we then wrote this letter. I did
6 not--
7 Q. This letter being the October 11th, 1993
8 letter?
9 A. Yes.
10 Q. I did not receive a response to the
11 letter and didn't have a conversation that I
12 recall with Mr. Crown for some months, though my
13 wife had a conversation with him.
14 Q. All right. And what is the, do you
15 recall that the Crown air conditioning unit was
16 turned on again in April of 1994?
17 A. Yes, it was.
18 Q. What, if anything, occurred in connection
19 with the air conditioning unit between October
20 11th, 1993 when you wrote the letter that's been
21 previously identified as Exhibit 49, and the time
22 in April of 1994 when the Crown air conditioning
23 unit was turned on?
24 A. I know only what I've been told and heard
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1 in the earlier testimony. And, I'm not sure I
2 recall the exact chronology, but apparently the
3 unit was turned and at some point there might have
4 been some insulation put on the inside. There was
5 supposed to have been a meeting with the Trane
6 engineers in early January, which was to include a
7 visit--Trane engineers were to meet at the Crown
8 house, which was to include a visit to our house.
9 And, we waited for them to come and they never
10 came. And, we were never told that the meeting
11 had been cancelled.
12 MR. CARSON: Your Honor, object to the
13 last portion of the answer as being without
14 foundation and being non-responsive to the
15 question in the narrative form. We move to strike
16 it. There was supposed to be a meeting, there is
17 no foundation for that, your Honor.
18 MR. KAISER: I can lay a foundation for
19 that, Madam Hearing Officer.
20 HEARING OFFICER: I will permit the
21 counsel to lay a foundation.
22 MR. KAISER: Thank you.
23 BY MR. KAISER:
24 Q. Mr. Shelton, sometime in the latter part
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1 of the 1993 or early part of 1994, did you become
2 aware that there was a meeting scheduled to take
3 place on or about the Crown residence sometime in
4 January of 1994 for the purposes of discussing the
5 air conditioner and the noise eminating from the
6 Crown air conditioner?
7 A. Yes.
8 Q. How did you become aware of that proposed
9 meeting?
10 A. Mr. Crown talked with my wife and asked
11 if it would be all right for them to come to our
12 house.
13 MR. CARSON: Objection, hearsay. Move to
14 strike the response and the reference to the
15 "there was supposed to be a meeting".
16 MR. KAISER: I don't know that we're
17 trying to prove any of the essential elements of
18 the case, it's more of a foundational matter. So,
19 I don't know that hearsay would necessarily
20 preclude introduction of that statement for those
21 limited purposes.
22 MR. CARSON: I'm not aware that there's
23 any aspect of this case where it would be relevant
24 that there was supposed to be, a meeting didn't
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1 take place. What, clearly, what they're trying to
2 do is to create the impression that nothing was
3 done, and that's the purpose that they're doing
4 this. They're trying to establish there was a
5 meeting scheduled and it didn't happen. And, Mrs.
6 Shelton was here, and if she was engaged in a
7 conversation with Mr. Crown at which this was
8 discussed, then she should have so testified, but
9 she didn't.
10 HEARING OFFICER: Counsel, what is your
11 purpose with this testimonial approach?
12 MR. KAISER: I'm just trying to put
13 before the Board the chronology of events here and
14 efforts made to come up with a solution and,
15 frankly, unsuccessful efforts. And those efforts
16 included a proposed meeting in January of 1994,
17 which I believe Mr. Shelton will testify that he
18 was at his home with his wife awaiting
19 representatives of Mr. Crown and the Trane
20 engineers, and those people never appeared. And,
21 there was no explanation offered for their failure
22 to appear. I think it's relevant and material to
23 the Board's consideration of these events.
24 HEARING OFFICER: The objection is
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1 sustained with respect to what another person
2 said. The witness may testify to what his
3 understanding was at any point in time.
4 BY MR. KAISER:
5 Q. Mr. Shelton, in the latter part of
6 December, 1993 or early part of January, 1994, did
7 you form a belief as to whether there was going to
8 be a meeting at the Crown residence to discuss
9 problems associated with Crown air conditioning
10 system?
11 A. Yes.
12 Q. When did you form a belief as to when
13 that meeting was to occur?
14 A. It was my belief it was to occur in early
15 January. I don't recall the exact date at this
16 moment.
17 Q. And, that would be January of 1994?
18 A. Yes.
19 Q. What, if any, steps did you personally
20 take to make yourself available for that meeting?
21 A. I didn't go to the office first thing in
22 the morning as I normally do, I waited at home.
23 Q. Do you recall how long you waited at
24 home?
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1 A. I waited until midmorning, 10:00
2 o'clockish.
3 Q. And, to the best of your recollection,
4 that was sometime in the early portion of January,
5 1994?
6 A. Yes.
7 Q. And, on that morning where you stayed
8 home from the office, waited at your home, did you
9 have any conversation was Mr. Crown or any agents
10 or representatives of Mr. Crown?
11 A. No.
12 Q. And, at what point did you make the
13 determination that it was more fruitful to go to
14 the office?
15 A. Midmorning.
16 Q. To this day, have you, do you have any
17 understanding as to why a meeting that you had
18 formed a belief was going to occur in early
19 January of 1994 at the Crown residence for the
20 purpose of discussing the Crown air conditioning
21 system, why that meeting did not occur?
22 MR. CARSON: Objection, no foundation.
23 MR. KAISER: All we're asking for is any
24 belief. If we get that there is a belief, then we
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1 can put in the foundation. But, we don't need to
2 lay a foundation if, in fact, there is no belief.
3 HEARING OFFICER: Overruled.
4 A. I have no belief as to why it didn't
5 occur. I don't know why it didn't occur.
6 BY MR. KAISER:
7 Q. Do you recall when the Crown air
8 conditioning system was turned on in April of
9 1994?
10 A. It was in the third week of April, as I
11 recall.
12 Q. Do you recall what the Crown air
13 conditioning system sounded like when it was
14 started up again in the third week of April, 1994?
15 A. It was terribly loud and disruptive.
16 Q. Was it disruptive when you were inside
17 your home?
18 A. Yes, it was.
19 Q. Do you recall whether your windows were
20 open or closed during the third week of April,
21 1994?
22 A. We were unable to keep our windows open.
23 We, in fact, even left the storm windows up,
24 excuse me, left the storm windows on to try to
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1 reduce the noise.
2 Q. Did keeping the storm windows closed
3 reduce, did you perceive it as reducing the noise
4 from the Crown air conditioning system?
5 A. It perhaps reduced the noise, I don't
6 really know whether it reduced it very much or
7 not. I know that the noise was unbearable, even
8 with them on.
9 Q. And, can you describe for the Board some
10 of the activities that were made more difficult or
11 impossible because of the noise, the unbearable
12 noise coming from the Crown air conditioning unit
13 in the third week of April, 1994?
14 A. Yes. The noise, it was an extensive,
15 deep, powerful drone that penetrated the house.
16 And, it was interspersed with huge sound surges,
17 booms, if you will, as different components of the
18 system kicked in and out. At times, particularly
19 in the evening, we could also hear higher pitched
20 sound such as a waterfall and hear also beating
21 sounds, which I'm told were probably different
22 phases of the system or different components of
23 the system going in and out of phase with each
24 other. The combination of these various noises
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1 had a lot of impact physically on the family,
2 which I believe my wife testified to, such as loss
3 of sleep, my son having to move out of his room,
4 our inability to use our backyard or our patio.
5 Extreme tiredness, depression and anxiety resulted
6 in the family. We were all very jumpy, more short
7 tempered than normal. I rambled a bit, I'm not --
8 Q. Thank you. And, do you recall for how
9 long the Crown air conditioning unit remained on
10 once it was re-started in the third week of April,
11 1994?
12 A. It was on only during the daytime hours
13 until Father's Day weekend in June. Father's Day
14 weekend in June, it was on 24 hours a day. Then,
15 it operated during the daytime hours only until
16 the last few days of June when it went back on 24
17 hours a day and remained that way for the rest of
18 the cooling season.
19 Q. During that Father's Day weekend of 1994,
20 and we've heard testimony from your wife and from
21 your son concerning the impact of the unit on
22 them, can you tell us how you experienced the
23 sound from the Crown air conditioning unit during
24 the Father's Day weekend of 1994, what affects did
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1 it have on you?
2 A. Again, the physiological reactions and
3 emotional reactions such as stress and anxiety
4 were the same as they described. I, in addition
5 to what they've said, which I think I could
6 incorporate as being very much how I felt, felt a
7 particular, concern may be too mild a word,
8 helplessness. As head of the family, here I was
9 seen by a family unable to sleep. My wife
10 actually in tears, my son telling me dad, I can't
11 sleep in my room. I tried to barbeque that
12 weekend for Father's Day, barbeque, and it was
13 horribly depressing. Every time the compressors
14 would kick on and off, I would start. In my mind,
15 it was nothing short of a torture, and it was
16 beyond my control. I've never felt so helpless
17 and impotent in my life.
18 Q. Did those feelings continue throughout
19 July of 1994?
20 A. Yes, they did and--yes, they did.
21 Q. Did those feelings continue throughout
22 August of 1994?
23 A. Yes, they did and some new feelings
24 actually came into being. One was the fact that
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1 I'm, there is nowhere to go to escape this thing.
2 It's like being seasick on a boat in the middle of
3 Lake Michigan. It's, for anyone who has
4 experienced that, it's a horrible feeling and
5 there's absolutely nowhere you can go to get away
6 from it. So, there was that sense of lack control
7 over my life. There was a sense that this
8 violation of the sanctity of our home was a
9 violation of us, perhaps something akin to what a
10 rape victim must feel when you've lost something
11 basic and fundamental that is yours, which is your
12 ability to enjoy your family and enjoy your home
13 during the summertime. Those kinds of feelings.
14 The fact that this was happening beyond my control
15 intensified as the summer went on.
16 Q. Now, I want to pull back in time a moment
17 here, and I want to direct your attention to June
18 30th of 1994. I want to show you what's
19 previously been marked for purposes of
20 identification as Exhibit 48. I want to show you
21 that. It's a letter from David Shelton to Steven
22 Crown dated June 30th, 1994. And, as I said,
23 previously marked for purposes of identification
24 as Exhibit 48. Do you recognize that letter?
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1 A. I do.
2 Q. Did you write this letter?
3 A. Yes, I did.
4 Q. Did you mail this letter to Mr. and Mrs.
5 A. Steven Crown on or about June 30th, 1994?
6 A. Yes, I did.
7 Q. I note in the roughly upper right third,
8 it indicates certified mail. Do you know whether
9 you sent this letter via certified mail?
10 A. Yes, I did.
11 Q. Do you recall that sometime in June or
12 thereabouts of 1994, the Crowns caused to be
13 installed fences, trees and baffling?
14 A. I must backtrack for just a moment. Once
15 the air conditioner was turned on in April, my
16 wife and I had, on different occasions, talked via
17 the phone and, in certain instances, face-to-face
18 about their plans for the air conditioner.
19 Q. Their plans meaning the plans of the
20 Crowns?
21 A. The Crowns plans for attenuating the
22 noise on the air conditioner. They had indicated
23 that there would be a fence and some trees put
24 around the air conditioner, and that they alluded
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1 to certain other things such as the turning of the
2 air conditioner and I believe the cones, and I'm
3 not sure what else they might have mentioned as
4 possibilities for them. I reiteratd what I had
5 been told by a number of people that fences and
6 trees were unlikely to be of much help in reducing
7 the sound. And, it was my understanding that they
8 weren't going to operate the system in the evening
9 after the Father's Day weekend until such time as
10 we had seen how the fences and trees were going to
11 work and make sure that the noise was going to be
12 acceptable. Unfortunately, that was not to be.
13 On June 27th, I believe it was, the air
14 conditioner commenced operating around the clock
15 again, which I had understood wouldn't happen. I
16 had a different conversation with Mr. Crown at
17 that time, but came away thinking --
18 Q. Excuse me, was that conversation in
19 person or by telephone?
20 A. It's by telephone.
21 Q. Do you recall whether you called him or
22 he called you?
23 A. I called him.
24 Q. Did you call him at home or at his
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1 office?
2 A. I believe it was at the office.
3 MR. CARSON: Your Honor, I'd like to
4 interrupt here with an objection to the previous
5 reasons, I understand counsel's attempt to
6 establish a foundation for the conversation Mr.
7 Shelton just alluded to. However, he just a
8 moment ago said something about he had an
9 understanding as to the unit not being operated
10 for 24 hours until these sound attenuating devices
11 were put into place. And, there was no foundation
12 at all for that testimony, and I move to strike
13 it.
14 MR. KAISER: We may lay the foundation
15 later, Madam Hearing Officer.
16 HEARING OFFICER: I'm going to grant the
17 motion to strike that portion of the testimony.
18 And, I'm going to ask counsel, before we proceed,
19 you indicated that Exhibit 48 had been introduced,
20 but I do not reflect that in the records. Could I
21 see Exhibit 48?
22 MR. KAISER: Yes. I apologize. I may
23 have drawn it from the wrong pile there.
24 HEARING OFFICER: For identification
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1 purposes, Exhibit 48 is a letter from Mr. Shelton
2 to Mr. and Mrs. Crown dated June 30th, 1994.
3 BY MR. KAISER:
4 Q. Before we go any further, Mr. Shelton,
5 just to put it all on the record in one place,
6 did you, in fact, write this letter dated June
7 30th, 1994 and identified as Exhibit 48?
8 A. I did.
9 Q. And, did you mail it to Mr. and Mrs. A.
10 Steven Crown on or about June 30th, 1994?
11 A. Yes, I did.
12 Q. And, is this a true and accurate copy of
13 the letter that you sent to the Crowns on or about
14 June 30th, 1994?
15 A. It is.
16 Q. Are the statements contained therein true
17 and accurate as of June 30th 1994?
18 A. They are.
19 MR. KAISER: Madam Hearing Officer, I
20 move for the admission into evidence of Exhibit
21 48.
22 MR. CARSON: No objection to Exhibit 48.
23 HEARING OFFICER: Exhibit 48 is entered
24 into. Thank you.
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1 BY MR. KAISER:
2 Q. Now, you were describing for us a
3 telephone conversation you initiated with Mr.
4 Crown. Was it the late part of June of 1994?
5 A. Yes.
6 Q. And, what did you say to him and what did
7 he say in response?
8 A. I told him that the trees and fencing
9 were doing very little to reduce the noise, and
10 that we continued to be deeply bothered by the
11 noise. And also, to tell him that based upon
12 earlier phone and face-to-face conversations we'd
13 had in the prior few weeks, that it was my
14 understanding they weren't going to be running the
15 unit at night. But that, in fact, it was now
16 running at night and asked him to please turn it
17 off at night.
18 Q. And what, if anything, did Mr. Crown say
19 in response?
20 A. He indicated that they had tried to
21 accommodate us, but had accommodated us about as
22 much as they could.
23 Q. About how long did that telephone
24 conversation last?
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1 A. It wasn't long, 5 minute type of
2 conversation.
3 Q. What, if anything, did you do after
4 concluding that telephone conversation with Mr.
5 Crown?
6 A. I was extremely anxious as to what was
7 happening, very concerned that we were making no
8 progress. I had to go out of town on business
9 and --
10 MR. KAISER: Excuse me, if I can just
11 back up one second. Did Mr. Crown -- you
12 mentioned that during the telephone conversation
13 you've just described with Mr. Crown, you stated
14 to him that you had an understanding that the air
15 conditioning unit would not be operated around the
16 clock?
17 A. Yes.
18 Q. What was the basis for your understanding
19 that the unit would not be operated around the
20 clock?
21 A. Earlier face-to-face and phone
22 conversations with Mr. Crown.
23 MR. CARSON: Objection, foundation.
24 MR. KAISER: If we may lay the
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1 foundation?
2 HEARING OFFICER: Overruled.
3 MR. KAISER: May I proceed?
4 HEARING OFFICER: Yes.
5 BY MR. KAIERA:
6 Q. Do you recall during what months the
7 telephone conversations -- did Mr. Crown make
8 those representations that unit would not be
9 operated around the clock, in a telephone
10 conversation to you or in a face-to-face
11 conversation with you?
12 A. I'm not certain specifically which
13 conversations it occurred in. There were several
14 conversations. I had 2 or 3 conversations on the
15 phone with him and met him at a swim meet where
16 our kids were competing.
17 Q. And, these conversations took place
18 between the latter part of April, 1994 and
19 Father's Day weekend of 1994?
20 A. Yes, yes they did. And, my wife also had
21 some conversations with him. And, I can't recall
22 specifically which of those conversations in which
23 he indicated that they're only keeping it on
24 during the day.
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1 Q. Do you recall talking with Mr. Crown
2 during your children's swim meet in the spring of
3 1994?
4 A. Yes.
5 Q. Did the subject of the air conditioner,
6 was that one of the topics about which you talked?
7 A. Yes, it was.
8 Q. And, did you discuss whether the unit
9 would be operated 24 hours a day during your
10 conversation with Mr. Crown at the swim meet in
11 the spring of 1994?
12 A. To the best of my recollection, he did
13 indicate that the unit would just be operating
14 during the day when construction was going on.
15 Q. And, when you say indicate, what ways did
16 he indicate that?
17 A. He told me that that was the way it would
18 be operating.
19 Q. Do you recall who provided you with the
20 name of Al Shiner and Associates?
21 A. I got the name from two sources; one was
22 from Greg Zack at the Illinois EPA. And, the
23 other was from our architect who had worked with
24 Al Shiner on another occasion.
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1 Q. Do you recall during what time frame you
2 obtained the name of Al Shiner?
3 A. We got the name during the, as best I
4 recall, we got the name during the week of June
5 27th, 1994.
6 Q. Did you and your wife, in fact, retain
7 Shiner and Associates to obtain property line
8 noise level measurements? I want to show you
9 what's previously been marked for purposes of
10 identification as Exhibit 56. And, Madam Hearing
11 Officer, I believe Exhibit 56 has been offered and
12 admitted into evidence.
13 HEARING OFFICER: You're correct.
14 BY MR. KAISER:
15 Q. Showing you a letter from Alan Shiner to
16 David Shelton dated July 5th 1994. Do you
17 recognize that?
18 A. Yes, I do.
19 Q. What do you recognize that to be?
20 A. That's the letter that Al Shiner faxed to
21 us on July 5th with the results of his noise
22 readings.
23 Q. I want to show you what's previously been
24 marked for purposes of identification as Exhibit
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
832
1 17, a letter from you to A. Steven Crown dated
2 July 6th, 1994. And I believe, Madam Hearing
3 Officer, this has been offered and admitted into
4 evidence.
5 HEARING OFFICER: Correct.
6 BY MR. KAISER:
7 Q. I show you that letter dated July 6th,
8 1994 and ask you if you recognize that?
9 A. Yes, I do.
10 Q. And did you, in fact, write that letter
11 on or about July 6th, 1994?
12 A. Yes.
13 Q. And, did you send that letter to A.
14 Steven Crown?
15 A. Yes, I did.
16 Q. Does this letter dated July 6th, 1994
17 truly and accurately set forth steps taken or
18 contemplated by you and your wife in the latter
19 part of June and early part of July, 1994?
20 A. It does. Should I --
21 Q. Yes.
22 A. It does. I should perhaps explain the
23 village council meeting.
24 Q. Yes, please.
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
833
1 A. In the last conversation I had with Mr.
2 Crown on June 30th after the air conditioner
3 continued to run, he had told me that they had
4 accommodated us all they were going to accommodate
5 us and weren't going to do any more. That was
6 that, and that we could do whatever we thought we
7 had to do. At that point, having spent the prior
8 9 months trying to work this out directly with
9 neighbor to neighbor, we felt we had no
10 alternative but to turn to the Village for help;
11 which we did. We also talked to the police, who
12 the Village had originally indicated we should
13 work with on this, but they, in turn, indicated we
14 should work with the Village, that it was not
15 their pervue. With that in mind, we were on the
16 agenda of the July 5th Village Council meeting.
17 And, to that end, the day of July 5th, we were
18 able to get the noise readings by Shiner, and that
19 is the Village Council meeting that's referred to
20 here in this letter of July 6th.
21 Q. During the early part of July, 1994, did
22 you also talk with certain Winnetka Village
23 trustees?
24 A. Yes. During the weekend of the 4th of
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
834
1 July, two trustees came to our house to listen and
2 suggested that we come to the village council
3 meeting and also suggested that we ask neighbors
4 to listen to the unit and to attest to whether
5 they thought it was a noise nuisance or not.
6 Q. Do you recall the names of those
7 trustees?
8 A. Yes, Louise Holland and Arnie Levy.
9 Q. If I may just take a look at that letter,
10 Mr. Shelton? Thank you. I note that you
11 reference a conversation with a person by the name
12 of Bill Devers. Do you know a Bill Devers,
13 D-e-v-e-r-s?
14 A. Yes. Bill, at the time, lived near to us
15 on Ardsley Road. He was a neighbor.
16 Q. What was your purpose for talking with
17 Mr. Devers?
18 A. We asked Bill if he would listen to the
19 air conditioner and give us his reaction. He did
20 and told us he thought it was a serious problem.
21 I told him that it had been suggested to us that
22 we start a petition and asked if he would be, feel
23 comfortable signing the petition. He said that he
24 would prefer to play the role of a peace maker, if
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
835
1 you will. That rather than sign the petition, he
2 was going to be in Aspen the 4th of July weekend
3 where the Crown family was having a 4th of July
4 party, and that he was going to be at that party
5 and suggested that would talk with Steven and that
6 perhaps he could help mediate the problem between
7 the two of us.
8 MR. CARSON: Your Honor, objection to the
9 portion of witness' answer that characterizes what
10 Mr. Devers said about the sound, that's hearsay.
11 I move to strike that portion of the answer.
12 MR. KAISER: I'm sorry, counsel, I was
13 consulting with my co-counsel.
14 HEARING OFFICER: A motion to strike the
15 testimony related to the characterization of the
16 sound by Mr. Devers has been made, and I'm going
17 to grant that.
18 MR. KAISER: Thank you, your Honor.
19 BY MR. KAISER:
20 Q. I want to show you what's previously been
21 marked for purposes of identification as
22 Plaintiffs Exhibit 91. It's a letter from Greg
23 Zack to you, Mr. Shelton, dated July 11th, 1994
24 and again, Madam Hearing Officer, if I may confirm
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
836
1 that this has been offered and admitted into
2 evidence.
3 HEARING OFFICER: That's correct.
4 Q. Mr. Shelton, did you receive this letter
5 on or about July 11th, 1994?
6 A. Yes, I did.
7 Q. And, had you talked to Mr. Zack prior to
8 receipt of that letter?
9 A. Yes, I had talked to him late June.
10 Q. Do you recall who provided you with Mr.
11 Zack's name or suggested that you contact the
12 Illinois Environmental Protection Agency?
13 A. The recommendation came from one of the
14 police officers in Winnetka.
15 Q. And did you, in fact, obtain Mr. Zack's
16 telephone number and contact him sometime early,
17 late June or early July of 1994?
18 A. Yes, I did, but I can't remember exactly
19 who gave me Mr. Zack's name. I do know that I did
20 talk to him prior to June 30th, I believe that was
21 the certified letter.
22 Q. I see.
23 A. Mr. Zack had suggested that, to get a
24 record of this thing started, that we should send
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
837
1 a certified letter.
2 Q. And, that was the June 30th, 1994 letter
3 also known as Exhibit 48 which you sent to Mr.
4 Crown on or about June 30th, 1994 by certified
5 mail?
6 A. Yes.
7 Q. I want to show you what's previously been
8 marked for purposes of identification as Exhibit
9 34. It's a letter, Alan H. Shiner to David R.
10 Shelton dated July 12th, 1994. And again, Madam
11 Hearing Officer, I'd like to confirm that Exhibit
12 34 has been offered and admitted into evidence.
13 Showing a copy of that letter to Respondent, to
14 Mr. Shelton.
15 HEARING OFFICER: That's correct.
16 BY MR. KAISER:
17 Q. I ask you do you recognize that letter?
18 A. Yes, I do.
19 Q. Is that a letter you received from Mr.
20 Shiner on or about July 12th, 1994?
21 A. It is.
22 Q. Thank you. Did that letter enclose on
23 the second page a diagram for a sound reduction or
24 acoustical enclosure?
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
838
1 A. Yes.
2 Q. I want to now show you what's marked for
3 purposes of identification as Exhibit 47. This is
4 a letter from David R. Shelton to Alan L. Shiner
5 dated July 21, 1994. I don't know that this has
6 previously been offered, Madam Hearing Officer.
7 HEARING OFFICER: This has been
8 introduced, but not admitted into evidence.
9 BY MR. KAISER:
10 Q. I show you that letter. Do you recognize
11 that?
12 A. Yes, I do.
13 Q. What do you recognize it to be?
14 A. It's a letter that I sent to Al Shiner
15 giving him additional information that I had
16 obtained from Trane.
17 Q. And, Trane being the manufacturer of the
18 air conditioning unit at the Crown residence?
19 A. Yes.
20 Q. I note at the bottom of Page 2, you
21 indicate that carbon copies were sent to S. Crown
22 and G. Zack. Is S. Crown Steven Crown?
23 A. Yes.
24 Q. Did you cause a copy of this letter,
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
839
1 Exhibit 47, to be mailed to Steven Crown on or
2 about July 21st, 1994?
3 A. Yes, I did.
4 Q. Did you also cause a copy of this letter
5 to be mailed to Greg Zack on or about that date?
6 A. Yes, I did.
7 Q. Did the letter that you sent to Mr.
8 Shiner also include a three page attachment?
9 A. Yes, it did.
10 Q. Now, I note that on the, and I'm looking
11 at the third page of Exhibit 47, that there is
12 some handwriting in the upper right hand corner
13 that indicates Trane engineering bulletin covering
14 RAUC series units. Do you know whose handwriting
15 that is?
16 A. That's my handwriting.
17 Q. And where did you obtain the copies of
18 this Trane engineering bulletin?
19 A. It was sent to me by Chris Seda at Trane.
20 Q. And, were these 3 pages, the last 3 pages
21 of Exhibit 47, those portions that you've
22 identified as excerpts from the Trane engineering
23 bulletin, were those attached to the carbon copy
24 of the July 21st 1994 letter that Mr. Crown was
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
840
1 sent a carbon copy of?
2 A. Yes.
3 MR. KAISER: Madam Hearing Officer, I
4 move for admission into evidence of Exhibit 47.
5 MR. CARSON: Your Honor, Exhibit 47 has
6 the same problem that we've raised previously with
7 reference to other exhibits that have this
8 unauthenticated and inapplicable Trane bulletin
9 attached. We know from prior testimony regarding
10 Exhibit No. 99 that the bulletin was not even
11 issued at the time that this particular unit was
12 purchased and, therefore, it's not applicable and
13 not relevant. And, we're objecting to the
14 introduction of the letter and the attachment for
15 that reason.
16 MR. KAISER: Madam Hearing Officer, it's
17 simply not true that these 3 pages excerpted from
18 the Trane engineering bulletin are
19 unauthenticated. We had Mr. Seda come in, in
20 part, for that purpose of authenticating these
21 portions of the Trane engineering bulletin. And,
22 you'll recall that on Friday, Mr. Carson made the
23 argument that these things may be rubbish or
24 something of that nature. And, we said even if
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
841
1 it's only rubbish, it still goes in to demonstrate
2 to the Board notice that Mr. Crown received on or
3 about July 21st, 1994. So, we think the objection
4 is without merit and that the entire exhibit
5 should be received. Again, that the Trane
6 engineering bulletin is not being offered for the
7 truth of the matter, but it's being offered to
8 show the Board what Mr. Crown had in his
9 possession in the latter part of July of 1994 so
10 that the Board can then judge the response made by
11 Mr. Crown.
12 HEARING OFFICER: The objection is
13 overruled and the Exhibit will be admitted into
14 evidence.
15 BY MR. KAISER:
16 Q. Now, Mr. Shelton, I'd like to show you
17 what's been marked for purposes of identification
18 as Exhibit 107. And frankly, counsel, I'm not
19 certain you've seen -- I'm certain you've seen it,
20 I'm not certain I have a copy for you. Exhibit
21 107 is a letter from David R. Shelton to Mr. A.
22 Steven Crown dated September 2, 1994. I'm showing
23 it to counsel for Respondent. Mr. Shelton, again,
24 I'm showing you what's been marked for purposes of
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
842
1 identification as Exhibit 107, the letter from you
2 to Mr. Crown dated September 2, 1994. I want you
3 to look at that document, tell me if you recognize
4 it?
5 A. Yes, I do.
6 Q. What do you recognize it to be?
7 A. It's a letter I wrote to Steven Crown on
8 September 2nd, 1994.
9 Q. Did you mail that letter to Mr. Crown?
10 A. Yes, I did.
11 Q. Are the facts contained in that
12 letter--first, is this a true and accurate copy of
13 the letter that you mailed to Mr. Crown on or
14 about September 2, 1994?
15 A. Yes, it is.
16 Q. Are the facts set forth in this letter
17 true and accurate as of September 2nd, 1994?
18 A. Yes, they are.
19 MR. KAISER: Madam Hearing Officer, we
20 would, at this time, move for the admission into
21 evidence of Exhibit 107, a letter from David
22 Shelton to Steven Crown dated September 2, 1994.
23 And, we can arrange to have copies. I'm giving
24 you the original here.
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
843
1 HEARING OFFICER: Are there any
2 objections?
3 MR. CARSON: No objection to 107.
4 HEARING OFFICER: Exhibit 107 will be
5 admitted into evidence.
6 MR. DIVER: Madam Hearing Officer, if I
7 may take the exhibit, I'll get copies made right
8 now.
9 HEARING OFFICER: Thank you.
10 BY MR. KAISER:
11 Q. Mr. Shelton, I now want to show you
12 what's been marked for purpose of identification
13 as Exhibit 45, a letter from David R. Shelton and
14 Robert S. Julian to Mr. A. Steven Crown dated
15 September 14th, 1994. I ask you if you recognize
16 that?
17 A. Yes, I do.
18 Q. What do you recognize it to be?
19 A. It's a letter that Bob Julian and I sent
20 to Steven Crown on September 14th, 1994.
21 Q. Did you prepare that with Mr. Julian?
22 A. Yes.
23 Q. Is that your signature at the lower left
24 hand corner or side of the document?
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
844
1 A. Yes.
2 Q. Is this a true and accurate copy of the
3 letter that you sent to Mr. Crown on or about
4 September 14th, 1994?
5 A. It is.
6 Q. Are the facts set forth therein true and
7 accurate as of September 14th, 1994?
8 A. Yes, they are.
9 MR. KAISER: Madam Hearing Officer, I
10 move for the admission into evidence of Exhibit
11 45.
12 MR. CARSON: No objection to 45.
13 HEARING OFFICER: Exhibit 45 will be
14 entered into evidence.
15 BY MR. KAISER:
16 Q. Do you recall making observations during
17 September of 1994 concerning the operations of the
18 Crown air conditioning system and the outdoor air
19 temperature during the evenings of September,
20 1994?
21 A. The temperatures were starting to get
22 cooler in the evening. I don't recall specific
23 temperatures at the time, but they were getting
24 cooler and certainly below temperatures where we
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
845
1 operated our air conditioner.
2 Q. Do you recall the range of temperatures
3 which the temperature fell during two evenings in
4 September of 1994?
5 A. I don't recall the specifics. I actually
6 recall specifics a year later, but I don't, at the
7 time I didn't think to keep a log.
8 Q. All right. Well, when we get to 1995,
9 I'll ask you for that comparison, thank you.
10 Q. I want to show you what's been marked for
11 purposes of identification as Exhibit 20, a letter
12 from A. Steven Crown to David R. Shelton and Mr.
13 Robert S. Julian dated September 15th, 1994. I
14 want to show you that, Mr. Shelton. Tell me if
15 you recognize that?
16 A. Yes, this is a letter I received from
17 Steven, though I didn't receive it until a number
18 of days later.
19 Q. Do you recall approximately how many days
20 later?
21 A. Yes, I recall specifically the letter was
22 postmarked September 21st and I received it the
23 23rd.
24 Q. And, is this a true and accurate copy of
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
846
1 a letter you received from Mr. Crown in the latter
2 part of September, 1994?
3 A. To the best of my recollection, yes.
4 Q. And, I note that there are some, for
5 instance, underlines and marginalia on the first
6 page. Do you know whose handwriting that is?
7 A. No, I'm not sure where this--
8 Q. I take it those were not on the original
9 letter you received from Mr. Crown?
10 A. No, they were not. They are not my
11 notes.
12 MR. CARSON: Can I interject here with an
13 objection and a proposal? Exhibit Number 44 --
14 oh, I guess it's a little bit different, the
15 handwritten thing. I'm concerned about the
16 notations on Exhibit Number 20 as affecting the
17 authentication of that document. And, somebody
18 was making some commentary in the margin on that,
19 and we don't know who. Exhibit 44 is one that's
20 not been marked up, of the same letter. It does
21 have a different P.S., and when I started to
22 interrupt here, I didn't realize the P.S. was
23 different.
24 HEARING OFFICER: I have a concern also
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
847
1 about the marginal notes, but proceed, counsel.
2 MR. KAISER: Here's a possible solution.
3 Perhaps we can create a hybred of 44 where we use
4 not only that Page 2 which has the handwritten
5 note which appears to be from Mr. Crown to Mr.
6 Zack, but also then append to it Page 2 from
7 Exhibit 20, which contains the handwritten note
8 from Mr. Crown.
9 MR. CARSON: Effectively redacting the --
10 MR. KAISER: Just taking off the cover
11 sheet.
12 MR. KAISER: May I use your copy of 44
13 for that purpose?
14 MR. CARSON: I need that copy of 44.
15 MR. KAISER: Let's see if we have that
16 copy. We may, Madam Hearing Officer.
17 HEARING OFFICER: Let's go off the record
18 for just a minute.
19 (WHEREUPON a 10-minute recess was taken.)
20 AFTER RECESS
21 HEARING OFFICER: We'll continue at this
22 time with the testimony of Mr. Shelton.
23 BY MR. KAISER:
24 Q. Thank you, Ms. Edvenson. As you recall
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
848
1 before the break, we were talking about, Mr.
2 Shelton and counsel for Respondents, an
3 appropriate Exhibit 20. The initial exhibit
4 offered contained certain marginalia and
5 underlining which we were not able to identify the
6 author of those marks. We now have a clean copy
7 of Exhibit 20, the letter from Mr. Crown to Mr.
8 Shelton and Mr. Julian, and I would ask to
9 substitute into the record this clean copy of
10 Exhibit 20 and offer Exhibit 20 for admission into
11 evidence at this time.
12 MR. CARSON: I think that would be fine,
13 if I can just take a moment and look at it.
14 MR. CARSON: Thank you. Can I have just
15 a moment to confer with counsel?
16 MR. KAISER: Madam Hearing Officer, I
17 note, for the record, that there's one bit of
18 marginalia, Page 2 of Exhibit 20 which, by
19 agreement with counsel for the Respondents, I'm
20 now marking out so that what remains is a
21 fascimile of the original letter from Mr. Crown
22 dated September 15, 1994.
23 MR. CARSON: That revised Exhibit 20 is
24 acceptable to us, your Honor.
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
849
1 HEARING OFFICER: All right. Then
2 Exhibit 20 will be entered into evidence.
3 MR. KAISER: Thank you.
4 BY MR. KAISER:
5 Q. Mr. Shelton, I'd like to show you what's
6 been marked for purposes of identification as
7 Exhibit 43, a letter you sent to village manager
8 Douglas Williams dated September 27th, 1994. Mr.
9 Shelton, I'm showing you what's now been marked
10 for purposes of identification as Exhibit 43. I
11 want you to take a look at that, tell me if you
12 recognize that?
13 A. Yes, I do.
14 Q. What do you recognize that to be?
15 A. Something is stapled --
16 Q. Well, Exhibit 43 contains, in essence,
17 two letters. One is from David R. Shelton to
18 Village Manager Douglas Williams dated September
19 27th, 1994, and another is a letter from you to
20 Mr. Crown dated September 27th, 1994. And, as
21 they address, as I understand it, the same issue
22 and are, in essence, a response to Mr. Crown's
23 letter dated September 15th, 1994 and previously
24 marked for purposes of identification as Exhibit
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
850
1 20, they have been joined as one exhibit and now
2 are before you as Exhibit 43.
3 A. I understand. Yes, these are letters
4 that I sent to Mr. Williams and to Steven Crown.
5 Q. Did you draft these letters?
6 A. I did.
7 Q. And, are these both true and accurate
8 copies of the letters you sent to Mr. Williams and
9 Mr. Crown on or about September 27th, 1994?
10 A. Yes, they are.
11 MR. CARSON: I'm not meaning to
12 interrupt, but I'm not sure I heard correctly.
13 Was it Exhibit 22 that's now attached to 43?
14 MR. KAISER: No, I was just offering by
15 way of explanation that the two letters which are
16 contained in 43, and maybe it would clarify the
17 record to call it 43 A, which is the letter to Mr.
18 Williams, and 43 B, the letter to Mr. Crown and
19 the attachments, yes.
20 MR. CARSON: And the letter to Mr. Crown
21 and attachments is Exhibit 22.
22 MR. KAISER: Is it also 22?
23 MR. CARSON: I believe so.
24 MR. KAISER: Madam Hearing Officer, can
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
851
1 we confirm whether, in fact, Exhibit 22 was, in
2 fact, a letter from Mr. Shelton to Mr. Crown dated
3 September 27th, 1994.
4 HEARING OFFICER: Exhibit 22 is September
5 21, 1995 letter from Mr. Shelton to Mr. Crown.
6 And, it was admitted for limited purposes.
7 MR. KAISER: I'm sorry, the date on
8 Exhibit 22?
9 A. 9-21-95.
10 HEARING OFFICER: It was admitted for
11 limited purposes on July 1st.
12 MR. KAISER: May I take look at that
13 exhibit.
14 HEARING OFFICER: Sure.
15 MR. CARSON: I could use a look at it,
16 too, because I've got something else marked as 22.
17 MR. KAISER: May I hold this out for just
18 a moment? Thank you. All right.
19 BY MR. KAISER:
20 Q. Well, if we may proceed, then, what you
21 have in front of you, Mr. Shelton, has been marked
22 for purposes of identification, and allow me to
23 mark this one as such, as 43 A, which is the
24 letter to Mr. Williams, and 43 B, which is the
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
852
1 letter to Mr. Crown. And I want you to look at
2 both 43 A and 43 B and tell me if those are true
3 and accurate copies of the letters you sent to Mr.
4 Williams and Mr. Crown on or about September 27th,
5 1994?
6 A. Yes, it is.
7 Q. And, I note that the letter to Mr. Crown
8 contained certain attachments. Can you identify
9 for the Board what documents were attached to the
10 letter to Mr. Crown dated September 27th, 1994?
11 A. Yes. There are two attachments. One is
12 a copy of Al Shiner's July 5th, 1994 noise level
13 readings.
14 Q. And, on that, I note that there's some
15 handwritten material at the bottom of that July
16 5th, 1994 letter. Do you recognize that
17 handwriting?
18 A. Yes, that's my handwriting. The second
19 attachment is a 2 page excerpt from the Trane
20 engineering bulletin that I received from Chris
21 Seda, and that I referred to a few minutes ago.
22 Q. And, were those attachments part of the
23 letter that was sent to Mr. Crown on or about
24 September 27th, 1994?
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
853
1 A. Yes, they were.
2 Q. And you note that on the letter to Mr.
3 Williams dated September 27th, 1994, it indicates
4 in the c.c. that a carbon copy of 43 A was sent to
5 Mr. A. Steven Crown. Do you know whether you sent
6 a carbon copy of Exhibit 43 A to Steven Crown on
7 or about September 27th, 994?
8 A. Yes, I did.
9 MR. KAISER: Madam Hearing Officer, I
10 move for admission into evidence Exhibit 43, both
11 43 A and 43 B.
12 MR. CARSON: No objection to 43 A and 43
13 B, your Honor.
14 HEARING OFFICER: All right. The two
15 letters of Exhibit 43 will be entered into
16 evidence.
17 BY MR. KAISER:
18 Q. I want to show you now what's been marked
19 for purposes of identification as Exhibit 19.
20 It's a letter from you to Mr. Crown dated November
21 9th, 1994. I'm showing you a copy of that, asking
22 you if you recognize that?
23 A. Yes, I do.
24 Q. What do you recognize that to be?
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
854
1 A. It's a letter I sent to Steven Crown on
2 November 9th. I faxed it to him.
3 Q. Is this a true and accurate copy of the
4 letter that you faxed to Mr. Crown on or about
5 November 9th, 1994?
6 A. It is.
7 MR. KAISER: I move for admission into
8 evidence of Exhibit 19.
9 MR. CARSON: Can we have a moment to
10 confer on Exhibit 19?
11 HEARING OFFICER: Yes.
12 MR. CARSON: Your Honor, we would object
13 to Exhibit 19 as containing hearsay. You'll note
14 that in the second paragraph of Exhibit 19,
15 there's a statement attributed to several
16 unidentified real estate brokers, and we don't
17 have an opportunity to examine those unidentified
18 real estate brokers. And, it's clearly being
19 offered to show this problem that the Sheltons
20 purportedly had as far as difficulty to sell this
21 home. And, it would be inappropriate to accept
22 this because of that hearsay.
23 MR. KAISER: It's being offered, once
24 again, to show what Mr. Crown knew and when he
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
855
1 knew it, or what information was communicated to
2 Mr. Crown when. And then, of course, collaterally
3 what did he do or what did he not do once he
4 obtained that information. It clearly was a
5 letter written by Mr. Shelton, which was sent to
6 Mr. Crown. It's true and accurate, it's part of
7 the dialogue between the Sheltons and the Crowns.
8 And frankly, regardless of the truth of the matter
9 asserted, it's an act that stands alone. The
10 drafting of the letter, the sending of the letter,
11 the accepting of the letter, that's an act
12 independent, frankly, of the content. And while
13 it's not being offered for the truth of the matter
14 asserted, it's being offered to show what the
15 level and tone of communications between the
16 parties was in November of 1994. And, for that
17 purpose, we'd move for its admission.
18 HEARING OFFICER: The objection is
19 overruled and Exhibit 19 will be admitted into
20 evidence, but for the limited purpose of showing
21 notice to Mr. Crown of Mr. Shelton's concerns.
22 BY MR. KAISER:
23 Q. By way of explanation here, Mr. Shelton,
24 could you, is it true that in November of 1994,
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856
1 you and your wife were talking with brokers about
2 possibly listing your home at 707 Ardsley Road in
3 Winnetka, Illinois, for sale?
4 A. Yes, we were.
5 Q. Why were you considering listing your
6 home for sale November of 1994?
7 A. There were several reasons. One reason
8 is that we had been concerned for some time about
9 the need for additional construction at the house,
10 an addition of our own. As I think I testified
11 last Friday, our original goal when we bought this
12 adult ranch house was to make it a house of
13 sufficient size for our family with two additions
14 as we could afford them. We did the first in 1990
15 and were hoping to do the second later on.
16 However, having lived in the house through half of
17 our first addition, plus by the middle of 1994,
18 having lived next door to the construction on the
19 Crown house for some almost 3 years, we were very
20 tired of construction and we were having second
21 thoughts about whether we wanted to live through
22 any more of it. Therefore, selling the house
23 seemed like a good alternative. But, that had
24 been a concern for a year or so at that point.
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1 The other things that had pushed us over the edge
2 insofar as deciding to sell the house had to do
3 with the Crown air conditioner. The first was we
4 had had what, for us, was an unbelievably horrible
5 experience through the summer and fall of 1994
6 with the noise, and were frankly at wits end.
7 And, at that point, even though there had been at
8 very late some communications about what was going
9 to be done, it had been exceptionally slow in
10 coming in. And, the communications we had gotten
11 were very inconsistent with each other. And, we
12 were not at all comfortable that there would be a
13 solution to this problem. So, that was a serious
14 concern for us, and the reason that we thought it
15 would be better to get on with our lives where we
16 didn't have to worry about it. The third factor
17 was that, to a great extent, I think one can say
18 that a home is as much on memories and emotions as
19 it is a physical structure. And, we had loved our
20 house and loved our neighborhood. But with this
21 battle with the neighbor, which we'd never, ever
22 had a problem with a neighbor before, with this
23 battle with our neighbor and this concept, problem
24 with the noise, the basic joy out of living in
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
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1 that house had gone away. And for those reasons,
2 we had decided that it's best to get on with our
3 life and sell the house.
4 Q. And, it was for that reason you met with
5 real estate brokers in late October and early
6 November of 1994?
7 A. Yes, it was.
8 Q. Did you subsequently list your house with
9 a real estate broker?
10 A. Yes, we did. In February of 1995, I
11 believe.
12 Q. Do you recall the name of that broker?
13 A The name of the brokerage firm was Kahn
14 Realty, K-a-h-n, and the broker was Ann
15 Montgomery.
16 Q. Is that branch of Kahn Realty located in,
17 where is it located?
18 A. It's located in Winnetka.
19 Q. Did you talk with Ann Montgomery or
20 anyone else at Kahn Realty concerning the problems
21 you had been having with the Crown air
22 conditioning system?
23 A. We did, plus unfortunately when we were,
24 when we reached an impasse in trying to work this
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
859
1 out directly with our neighbors and were forced to
2 go to the Village for help, it had become somewhat
3 of a public issue. So, unfortunately, it was
4 common knowledge that there was an air conditioner
5 problem here. We also talked specifically with
6 her about it.
7 MR. KAISER: Madam Hearing Officer, if
8 you can please let me know what is the last
9 exhibit number that we've used in this proceeding?
10 HEARING OFFICER: That's Number 107.
11 MR. KAISER: So, any new exhibit would
12 be 108.
13 BY MR. KAISER:
14 Q. I'm showing counsel for Respondent what
15 I've just marked for purposes of identification as
16 Complainant's Exhibit 108. It's a 3 page document
17 which has presently been tendered to counsel for
18 Respondent in your response to interrogatories and
19 document production requests. It's a listing of
20 the Shelton residence with Kahn Realty Companies.
21 Original listing date on or about February 1,
22 1995. Showing you a 3-page document that I've
23 marked for purposes of identification as
24 Plaintiff's Exhibit 108. I ask you to review
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
860
1 those 3 pages, tell me if you recognize that
2 document?
3 A. Yes, I do. This is information
4 pertaining to the listing of our house that we
5 supplied to the Crown attorneys in the
6 interrogatories.
7 Q. Is that, where did you obtain that
8 information?
9 A. From our broker, Ann Montgomery.
10 Q. And, are those true and accurate copies
11 of the information you obtained?
12 A. Yes.
13 MR. CARSON: Objection, foundation--of
14 the copies he obtained? I withdraw the objection.
15 BY MR. KAISER:
16 Q. Are those true and accurate copies of the
17 document you obtained from your broker, Ann
18 Montgomery?
19 A. Yes.
20 Q. And, was it your testimony you listed
21 your home with Ann Montgomery in February of 1995?
22 A. Yes.
23 Q. And, did you have a conversation with Ms.
24 Montgomery and anyone else at Kahn Realty
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
861
1 concerning the Crown air conditioning unit?
2 A. Yes, we did. We met with, I believe the
3 name is Joe Cavolek, I'd have to check my notes to
4 be certain, but I believe C-a-v-o-l-e-k, and Joe
5 is the number 2 person at Kahn Realty. We went
6 with Joe and Ann to talk about the implications of
7 the air conditioner problem for our listing.
8 MR. CARSON: Your Honor, just can I raise
9 an objection in a preliminary fashion in that
10 where this is going, obviously, is for us to hear
11 what Joe Cavolek and Ann Montgomery had to say
12 about the air conditioning problem. It's
13 objectionable hearsay and we're, we want to go on
14 record as soon as possible objecting to the
15 admissibility of that testimony.
16 HEARING OFFICER: Counsel, can you tell
17 us where you plan to go with this testimony?
18 MR. KAISER: Yes. All I'd like to do is
19 establish that this was the listing agreement and
20 that as a condition to listing the Shelton home
21 with Kahn Realty Companies, Kahn Realty asked that
22 Page 3 of the agreement, air conditioner noise
23 rider, be attached to the listing and that this,
24 in fact, is a true and accurate copy of the rider
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
862
1 that Kahn Realty placed upon the listing
2 agreement.
3 MR. CARSON: There is no authentication,
4 there is no ability to authenticate these Kahn
5 Realty documents with this witness, and that's all
6 inadmissible hearsay, unauthenticated.
7 HEARING OFFICER: All right. We've had
8 the production of the exhibit to the witness and
9 we've had the witness verify that the exhibit is
10 the item that he received from the reality.
11 Proceed.
12 MR. KAISER: I want to mark for purposes
13 of identification as 108 A, B, and C. And,
14 drawing your attention in particular to 108 C,
15 which is titled air conditioner noise. When did
16 you first see the page that's been marked as
17 Exhibit 108 C?
18 A. I actually drafted it just prior to the
19 listing of the house.
20 Q. Why did you draft it?
21 A. Kahn requested that I write a description
22 of the situation with regard to the Crown air
23 conditioner as it related to our house.
24 Q. What, if any, concerns did you have as of
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
863
1 February, 1995 with respect to liability to future
2 purchasers of your home at 707 Ardsley Road in the
3 event that you did not disclose the problems you'd
4 had with noise eminating from the Crown air
5 conditioning system?
6 MR. CARSON: Object to that question as
7 calling for a conclusion. And, in this case, a
8 legal conclusion as to what his liability would
9 be.
10 MR. KAISER: Excuse me, that's not what's
11 called for. I asked for Mr. Shelton's concerns.
12 He can have concerns regarding liability and
13 doesn't need to be a lawyer to have those
14 concerns. That's all I want to know, did he or
15 did he not have concerns in February of 1995
16 concerning liability. If he has a concern, then
17 I'll lay a foundation on the basis of his concern.
18 Although living in the United States in the 1980's
19 and 1990's, I think everyone has a basis for a
20 concern. But--
21 HEARING OFFICER: As to the objection
22 objection to the question that was asked, the
23 objection is sustained.
24 BY MR. KAISER:
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1 Q. Mr. Shelton, in February of 1995, did you
2 have concerns with respect to liability to a
3 future purchaser of your home in the event that
4 you did not disclose or remain silent about the
5 problems you'd had in connection with the Crown
6 air conditioning unit?
7 MR. CARSON: Same objection, and I
8 believe it was the same question.
9 HEARING OFFICER: I'll permit the witness
10 to answer. Objection overruled.
11 A. I had two concerns. The first that it
12 was my understanding that a new regulation had
13 been passed in Illinois fairly recently prior to
14 this, I don't know the exact date, that required
15 increased disclosure by home owners who were
16 selling. I also understood from talking with
17 counsel and Kahn that it was my understanding that
18 while this regulation might not technically
19 require our disclosure, it, there was a sufficient
20 gray area that we might have some exposure if we
21 didn't disclose this.
22 The second concern I had was not
23 really a legal concern, simply a question of
24 ethics. I didn't think it would be right to sell
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
865
1 our house to someone knowing that there was this
2 problem without telling them about it.
3 MR. CARSON: Renew the objection and move
4 to strike the response. The witness started by
5 giving his interpretation of the status of
6 Illinois law with respect to the new statute, and
7 then he went on to tell us what opinions he
8 received from Kahn Realty, whoever that is, and
9 counsel, unidentified, and it's hearsay and it's
10 inappropriate, and we move to strike the response.
11 MR. KAISER: Madam Hearing Officer,
12 again, we're not offering it for the truth of the
13 matter asserted, whether, in fact, there was a new
14 Illinois regulation; whether, in fact, Mr.
15 Shelton's problem with the Crown air conditioning
16 system fell into a gray area, those are not the
17 matters we're trying to prove here. What we want
18 to determine is what was in the Shelton's minds in
19 February of 1995. What obligations did he
20 perceive, either based in law or in the area of
21 ethics and morality, that caused him to generate
22 the document that we're looking at, Exhibit 108 C.
23 That's an entirely appropriate area of inquiry and
24 for testimony.
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
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1 MR. CARSON: There's no hearsay rule if
2 everything is introduced for the purpose of
3 establishing the state of mind when it's obvious
4 that it's a subtrofuge. It's being offered to
5 prove, again, if his state of mind is based upon
6 some erroneous understanding of the law, how is
7 that erroneous understanding of the law even
8 relevant or material to the proceeding?
9 HEARING OFFICER: Thank you, counsel.
10 MR. CARSON: Would it be okay if we
11 looked at the exhibit again?
12 Your Honor, if I can also make an
13 additional comment regarding the contents of the
14 Exhibit.
15 HEARING OFFICER: Proceed.
16 MR. CARSON: Exhibit 108 C contains a
17 number of statements that are a total
18 contradiction to the evidence that we've heard so
19 far in this proceeding. It states here that the
20 unit commenced operation in the summer of 1994.
21 We've heard testimony that, in fact, it commenced
22 operation in the fall of 1993. It states that
23 decibel readings from the unit indicated that
24 noise levels were in excess of Illinois EPA
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
867
1 standards. While I don't think we have any direct
2 evidence in this proceeding to this point, I think
3 the Board is certainly aware that these EPA
4 standards are not applicable to units communicated
5 from a residence to another residence. It also
6 states that the enclosure was erected in January,
7 around the unit, was erected in January of 1995
8 when, in fact, the evidence is it was erected
9 sometime later, approximately April of 1995. It's
10 not a reliable document, and there is no
11 opportunity for us to test this information.
12 There's no opportunity for us to test the
13 information contained on this listing sheet
14 because it was all generated by somebody at Kahn
15 Realty who is not available for cross examination.
16 MR. KAISER: I know, your Honor, or Madam
17 Hearing Officer, that at this point, we're talking
18 solely about Exhibit 108 C, and we've not moved
19 for admission of 108 A, 108 B or even at this
20 point, for 108 C. We're laying the foundation for
21 its admission.
22 HEARING OFFICER: All right. At this
23 point the objection, which is with respect to
24 testimony proffered by Mr. Shelton, is overruled
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
868
1 and the motion to strike is denied. I perceived
2 this testimony as admissible as a foundation for
3 Mr. Shelton's authorship of 108 C. I will receive
4 this testimony.
5 MR. KAISER: I've lost track whether
6 there is a question pending. I'd ask that Madam
7 Court Reporter find it and read it back. If there
8 is not, then I can just proceed.
9 MR. CARSON: As I recall, I interrupted
10 after the answer before your next question.
11 MR. KAISER: All right.
12 BY MR. KAISER:
13 Q. Now, with respect to 108 C, what is your
14 testimony concerning the authorship of 108 C?
15 Who, in fact, drafted what we're referring to as
16 Document 108 C?
17 A. I drafted it, and disagreed with some of
18 the Respondent counsels assertions about it.
19 Q. The facts that he challenged in his
20 objection?
21 HEARING OFFICER: The facts are not at
22 issue right now.
23 BY MR. KAISER:
24 Q. Right. And, I ask did you draft the
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869
1 document we're referring to as Exhibit 108 C?
2 A. I drafted it because our brokerage firm
3 said that we would have to have a disclosure of
4 this kind in order for them to list the house.
5 And, secondly, because I felt it was the right
6 thing to do, the ethical thing to do.
7 MR. CARSON: Re-raising the same
8 objection and move to strike the response for the
9 same grounds previously stated.
10 HEARING OFFICER: Motion to strike as to
11 the broker's statement is granted.
12 BY MR. KAISER:
13 Q. Did you show this Exhibit 108 C to Ms.
14 Montgomery or anyone else at Kahn Realty?
15 A. Yes, I did.
16 Q. Do you know whether Kahn Realty was
17 willing to list your home for sale with them in
18 the absence of 108 C?
19 A. It's my understanding they would not.
20 Q. What was the basis for your
21 understanding?
22 A. A meeting we had with Ms. Montgomery and
23 Mr. Cavolek to discuss the housing and the related
24 noise problem.
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
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1 Q. And, do you recall what month and what
2 year that meeting took place?
3 A. It was, to the best of my recollection,
4 January of 1995.
5 Q. After tendering a copy of 108 C to, did
6 you, in fact, give Ms. Montgomery a copy of this
7 document we're referring to as 108 C?
8 A. Yes, we did.
9 Q. What, if any, action did Kahn Realty take
10 with respect to listing your home once their
11 agent, Ms. Montgomery received a copy of the
12 document we're referring to as 108 C?
13 A. They proceeded with the listing.
14 Q. Is 108 C a true and accurate copy of the
15 document you provided to Ms. Montgomery prior to
16 Kahn Realty proceeding with the listing in
17 February of 1995?
18 A. Yes, it is. I might add that we did wait
19 to list the house until the enclosure was done so
20 that we could, in fact, say that it was completed,
21 and Mr. Crown had indicated to us at a meeting
22 with the village officials in January of 1995 that
23 the enclosure was completed.
24 Q. Thank you. Did you have any conversation
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
871
1 with Ms. Montgomery at the time that you provided
2 her with this document, 108 C?
3 A. Yes.
4 Q. Where did that conversation take place?
5 A. There were several conversations as we
6 discussed the listing, and then put it into
7 effect. We had the meeting with her and Mr.
8 Cavolek at the Kahn Realty Office in Winnetka.
9 She also visited our home on more than one
10 occasion, and we had phone conversations. And, at
11 various times during those conversations, we
12 talked about this disclosure, as well as other
13 aspects of the listing.
14 Q. In January of 1995, did you form an
15 opinion as to whether a disclosure statement was a
16 necessary attachment to a listing agreement with
17 Kahn Realty?
18 MR. CARSON: Objection, calls for a
19 conclusion.
20 HEARING OFFICER: Sustained.
21 MR. KAISER: I'm sorry, Madam Hearing
22 Officer, Mr. Shelton can't testify to his opinion
23 or belief in January of 1995?
24 HEARING OFFICER: Would the Court
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
872
1 Reporter please read back the question?
2 (WHEREUPON, the record was
3 read by the Court
4 Reporter.)
5 HEARING OFFICER: Thank you. My ruling
6 stands. I would like to ask counsel for
7 Complainants to use a less leading questioning
8 style.
9 BY MR. KAISER:
10 Q. What, if any, opinion did you form in
11 January of 1995? What, if any, opinion did you
12 form in January of 1995 concerning the conditions
13 imposed by Kahn Realty in connection with the
14 listing of your residence for sale?
15 MR. CARSON: Your Honor, again, I'm going
16 to object. What counsel is attempting to
17 establish here is that Kahn Realty said, you have
18 to make this disclosure. We're not going to
19 accept the listing. If that's what he intends to
20 prove, why don't they bring Kahn Realty here to so
21 testify? This is an inappropriate way to bring in
22 this testimony. It's also legal conclusions.
23 We're dealing with the applicability of the
24 Illinois Real Estate Disclosure Act, and why do we
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1 have to listen to a lay witness tell us what the
2 law is through what some real estate broker told
3 him? It's inappropriate and it shouldn't be
4 permitted.
5 MR. KAISER: If that argument could
6 change the facts, then there might be a basis for
7 excluding it. But, the facts are, and I'm
8 offering this as an offer of proof, the facts are
9 that Kahn Realty did insist that Mr. Shelton
10 attach a rider to the listing agreement. Whether
11 that had an appropriate basis in law or didn't is
12 not the question here. We're not litigating that.
13 What we're demonstrating is that there were
14 consequences to the persistent noise eminating
15 from the Crown air conditioning unit. One of
16 those consequences was that when Mr. Shelton went
17 to list his home, the realtor insisted on a air
18 conditioning noise rider. Now, whether that was
19 well founded in law or whether Mr. Carson might
20 have advised the reality company to do otherwise,
21 that's what's irrelevant. But, it's highly
22 relevant the fact that there was this requirement,
23 and that Mr. Shelton abided by it.
24 HEARING OFFICER: The objection is
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1 sustained.
2 MR. KAISER: Madam Hearing Officer, just
3 for the record, as a matter of proof, if Mr.
4 Shelton were allowed to testify, he would testify
5 that he had meetings with Ms. Montgomery and the
6 manager for Kahn Realty in Winnetka, Illinois.
7 HEARING OFFICER: I believe he has
8 testified to that already.
9 MR. KAISER: Yes, I believe he has.
10 But, that the substance of those conversations
11 were that, in fact, a rider was a necessary
12 condition to listing his home for sale. I believe
13 he's also testified that he drafted this rider,
14 that he tendered it to Ms. Montgomery and that
15 after receipt, Kahn Realty did, in fact, list the
16 home for sale. With that, I move for admission
17 into evidence of Plaintiffs Exhibit 108 C.
18 MR. CARSON: We're objecting to 108 C,
19 your Honor, that the witness has testified as to a
20 number of facts as to his perceptions at the time.
21 The document itself, though, is hearsay. It's his
22 purported summary of events that he gave to a
23 realtor for an unknown purpose, and it's
24 inadmissible hearsay. I stated earlier all the
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1 factual statements we beleive to be incorrect as
2 well.
3 MR. KAISER: My response is it's not
4 being offered for the truth of the matter
5 asserted. We're not attempting to prove, through
6 this, the facts contained therein. What we want
7 to establish is that in February of 1995, Mr.
8 Shelton drafted this document, tendered this
9 document to Ms. Montgomery of Kahn Realty, and
10 that upon receipt of this document, Kahn Realty
11 then listed the Shelton residence for sale.
12 HEARING OFFICER: Thank you, counsel.
13 MR. CARSON: May I make one other point
14 with respect to 108 C, your Honor?
15 HEARING OFFICERL Yes.
16 MR. CARSON: It states in the closing
17 sentence, excuse me for taking yours, I want to
18 show it to her, the last sentence there, if
19 further attenuation is needed, additional steps
20 can be taken. There is no foundation for that
21 statement. This is just, I mean, is this witness
22 now an expert in sound attenuation?
23 HEARING OFFICER: Okay, thank you.
24 MR. KAISER: If I just may point out,
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1 Madam Hearing Officer, in fact more attenuation,
2 additional steps were taken in the spring of 1996.
3 So, it's somewhat bizarre to argue that this is a
4 false statement and, therefore, this document
5 shouldn't be admitted when we've all sat through
6 hearings and know that they've scaled back the air
7 conditioning operations protocols in the spring of
8 1996 as additional steps to be taken to attenuate
9 sound.
10 MR. CARSON: I'm not arguing the truth or
11 falsity of the statement. This witness would be
12 permitted to make that statement here in this
13 hearing on why should he be able to make that
14 statement indirectly through that piece of paper.
15 MR. KAISER: Madam Hearing Officer, we
16 would stipulate that this document can be used for
17 the purposes of establishing a violation of any
18 noise, of numerical noise standards established by
19 the Board already.
20 HEARING OFFICER: The objection is
21 overruled. However, the document, Exhibit 108 C
22 will be admitted only for the limited purpose of
23 showing that Mr. Shelton authored it and provided
24 it to his real estate agent. It's not admitted
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1 for the truth of any matter asserted in it.
2 MR. KAISER: Thank you. If I may
3 substitute, Mr. Carson, do you have a problem if I
4 substitute this copy of 108 C. It's in a little
5 better repair.
6 HEARING OFFICER: Thank you.
7 BY MR. KAISER:
8 Q. Showing counsel for Respondents what's
9 marked for purposes of identification as Exhibit
10 7, it's a letter from Mr. Shelton to the Winnetka
11 Village Council dated January 16th, 1995. I
12 believe it's been the subject of some prior
13 testimony, though it's my recollection that it's
14 not yet been formally admitted into evidence.
15 Mr. Shelton, I'm showing you what's been
16 marked for purposes of identification as Exhibit
17 7. I ask you if you recognize that?
18 A. Yes, I do.
19 Q. What do you recognize that to be?
20 A. It's a copy of a letter that I sent to
21 the Village Council in January of 1995.
22 Q. Is that a true and accurate copy of the
23 letter that you sent to the Village Council on or
24 about January 16th, 1995?
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1 A. It is.
2 Q. I note that there is a number of
3 attachments to that letter. And, if we could just
4 show it to Madam Hearing Officer.
5 HEARING OFFICER: Mr. Kaiser, would you
6 remove the note that I placed on it?
7 MR. KAISER: Yes, I'd be happy to.
8 BY MR. KAISER:
9 Q. I note that there are a number of
10 attachments to this letter. Can you please go
11 through and, for the Board's benefit, identify the
12 attachments?
13 A. Yes. The first attachment is a 2-paged
14 excerpt from the Trane engineering bulletin
15 regarding noise levels of RAUC air conditioners
16 that we referred to in other documents. The
17 second attachment is the copy of a petition that
18 we had neighbors sign during the summer of 1994.
19 The third attachment is a copy of the Al Shiner
20 noise readings of July 5th, 1994.
21 Q. And again, on that attachment, Mr.
22 Shelton, I notice that that contains--is that your
23 handwriting at the bottom of the page of the
24 Shiner Associates letter?
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1 A. It is. It's not the same notation that
2 was on the copy that we looked at a few minutes
3 ago, but as the months progressed, I became a
4 little more learned and, in the arcane area of
5 noise. And so, this was a little more accurate
6 understanding of what I feel the facts were that I
7 note here. All right. And, lastly is a letter
8 from Greg Zack at the EPA to Mr. Shiner where he's
9 talking about the effects of the enclosure being
10 constructed by the Crowns.
11 Q. And, were these attachments all contained
12 in the letter that you sent to the Winnetka
13 Village Council on or about January 16th, 1995 and
14 identified for purposes of this hearing as Exhibit
15 7?
16 A. Yes, they were.
17 Q. I note that at the bottom of Page 4 of
18 that letter, there's a c.c. to an A. Steven Crown.
19 Is that Mr. Crown the Respondent in this
20 proceeding?
21 A. It is.
22 Q. And, I see that there's a little
23 handwritten check beside his name. What, if
24 anything, does that indicate?
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1 A. That I did, in fact, mail the copy to
2 him.
3 Q. And the copy that you sent to Mr. Crown,
4 would that have contained the attachments to the
5 letter as well, as well as the body of the letter
6 itself?
7 A. Yes, it would.
8 Q. And, is this a true and accurate copy of
9 the letter that you sent to the Village on or
10 about January 16th, 1995?
11 A. It is.
12 MR. KAISER: Move for admission into
13 evidence of Exhibit 7.
14 MR. CARSON: We object to the admission
15 of Exhibit 7, in particular attachments which
16 include the irrelevant and inapplicable Trane
17 Bulletin, the blatant hearsay petition, the
18 recitation by this witness who is obviously not an
19 expert witness as to what decibel readings mean
20 and the letter from Mr. Zack as having no proper
21 foundation. The attachments to the letter are all
22 inadmissible. The letter itself directed to the
23 Winnetka Village Council is of questionable
24 relevance as well, and we're objecting to Exhibit
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1 7.
2 HEARING OFFICER: Counsel, can you inform
3 me which of these exhibits have already been
4 admitted as a separate exhibit?
5 MR. KAISER: The Trane Bulletin has been
6 authenticated and admitted through Mr. Seda. The
7 petition has been the subject of testimony from
8 Complainant, Susi Shelton but not yet, to my
9 knowledge, been offered and admitted. The letter
10 of Mr. Shiner dated July 5, 1994 and except the
11 annotation at the bottom by Mr. Shelton I believe
12 has been admitted. And Mr. Zack's letter of
13 October 19th, 1994, to the best of my
14 recollection, has been admitted.
15 MR. CARSON: Can I respond to that?
16 HEARING OFFICER: Yes.
17 MR. CARSON: If this portion of the Trane
18 Bulletin has been admitted, it has been as an
19 attachment to a letter for a limited purpose. The
20 document itself has not been admitted into
21 evidence. The Petition, to my knowledge, has not
22 been admitted into evidence. Mr. Shelton's
23 commentary regarding what decibel readings mean
24 has never been admitted into evidence. And, if
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1 this letter that Greg Zack, that purports to be a
2 letter from Greg Zack dated October 19th has been
3 admitted into evidence, I'd like to know what the
4 exhibit number is. I'd like to verify it with my
5 own notes because I don't recall that being the
6 case.
7 MR. KAISER: Already. Madam Hearing
8 Officer, I stand corrected by, certainly, Mr.
9 Carson's remarks. I believe he's correct that Mr.
10 Zack's letter of October 19th, 1994 has not
11 previously been added. And, I believe, certainly
12 agree he's correct when he states the Trane
13 Bulletin has been admitted for a limited purpose.
14 You'll recall the entire bulletin was the subject
15 of confidentiality between the Respondent and the
16 Trane Company on whether it was shown and was used
17 by Mr. Seda to authenticate these excerpts. The
18 entire Trane bulletin was, of course, not offered
19 and weren't admitted into evidence. Again, we're
20 looking to get this information in for the
21 purposes of establishing what actions Mr. Shelton
22 has taken by way of seeking a remedy outside of
23 these proceedings. And again, it goes to notice,
24 what Mr. Crown knew, when he knew it, what he did
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
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1 or did not do with that knowledge.
2 HEARING OFFICER: Okay. I'm going to
3 permit Exhibit 7 to be entered into evidence.
4 With respect to the Trane engineering pages, the
5 same limitations will apply as applied in our
6 previous examination of this exhibit. This will
7 not be admissible for the truth of the information
8 asserted. With respect to the petition, that will
9 be added as a petition, as evidence of a petition.
10 The sound test results of Mr. Alan Shiner are
11 already admitted, and the letter from Greg Zack
12 will be added as evidence that he was in touch
13 with Mr. Shiner related to this issue.
14 MR. KAISER: Thank you.
15 BY MR. KAISER:
16 Q. Mr. Shelton, I want to show you what's
17 been marked for purposes of identification as
18 Exhibit 35. It's a, I believe it's a 3-page
19 document which has as its cover a letter from you
20 to members of the Winnetka Village Council, Mr.
21 Crown, Mr. Al Shiner. It's dated January 21st,
22 1995. Counsel, I see you have a copy on your
23 table here, 35, I apologize.
24 MR. KAISER: Madam Hearing Officer,
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1 perhaps you could advise me whether this has been
2 offered and admitted previously, or whether I need
3 to lay a foundation?
4 HEARING OFFICER: 5 has been admitted
5 into evidence on July 1st.
6 MR. CARSON: My notes indicate a limited
7 purpose of notice for Exhibit 35. Is that
8 consistent with your notes, Madam Hearing Officer?
9 HEARING OFFICER: Yes, it is.
10 BY MR. KAISER:
11 Q. Do you recognize that document?
12 A. I do.
13 Q. What do you recognize it to be?
14 A. It's a synopsis of the discussion that we
15 had with representatives of the Village, Steven
16 Crown and Bob Julian on January 17th, 1995, and Al
17 Shiner was on the speaker phone a good part of
18 that conversation.
19 Q. Is this a true and accurate copy of the
20 letter that you sent to these addressees on or
21 about January 21st, 1995?
22 A. It is.
23 Q. And, did you enclose in that letter this
24 2-page synopsis of the January 17th, 1995 meeting?
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1 A. I did. I might also point out that in
2 Point 2 of the synopsis, was referring to Al
3 Shiner's point, this is where, what I based our
4 real estate disclosure statement, that additional
5 steps could be taken, this was the basis for that
6 statement.
7 Q. I see. Did you, in fact, participate in
8 a meeting concerning the Crown air conditioning
9 unit on or about January 17, 1995 at the Winnetka
10 Village Hall?
11 A. Yes.
12 Q. I note that at the top of the second page
13 of the document, you note people attending. Is
14 that, in fact, an accurate summary of the persons
15 who were in attendance at the meeting?
16 A. It is.
17 Q. And, I see that Mr. Shiner is indicated
18 as attending by phone. What did you mean by that?
19 A. He was not physically at the meeting, but
20 we did have a speaker phone in the conference room
21 and he was listening and talking with the group
22 via the phone.
23 Q. Was one of the subjects discussed testing
24 of the air conditioning unit?
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1 A. Yes, it was.
2 Q. When you refer to testing, what are you
3 talking about?
4 A. Additional noise readings.
5 Q. What agreements, if any, did you reach
6 with the Crowns concerning payment for additional
7 noise readings?
8 A. We agreed that we would share the cost of
9 the testing.
10 Q. Now, what, if any, agreements did you
11 reach with the Crowns concerning the timing of
12 such tests?
13 A. That we would test as, essentially, as
14 weather permits.
15 Q. Did you make that summary of the meeting
16 and the points discussed at the meeting on or
17 about the time of the meeting?
18 A. I didn't.
19 Q. And, as you review that today, is that a
20 true and accurate summary of the points in the
21 meeting, location, persons attending and subjects
22 covered?
23 A. Yes, it is.
24 MR. KAISER: I move for admission into
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1 evidence of Exhibit 35 without restriction.
2 MR. CARSON: No objection to Exhibit 35.
3 HEARING OFFICER: Okay, thank you.
4 Exhibit 35 is entered into evidence without
5 restriction.
6 BY MR. KAISER:
7 Q. I want to show you what's previously been
8 marked for purposes of identification as Exhibit
9 60, a letter from Alan H. Shiner to David Shelton
10 dated June 20th, 1995, asking you if you recognize
11 that?
12 A. Yes, I do.
13 Q. Is that a true and accurate copy of a
14 letter you received from Mr. Shiner?
15 A. It is.
16 Q. Does that, in fact, summarize the noise
17 results that Mr. Shiner obtained in June of 1995?
18 A. Yes it does.
19 Q. I believe Exhibit 60 has already been
20 admitted into evidence. If it hasn't, I now move
21 for its admission.
22 HEARING OFFICER: Exhibit 60 has been
23 entered into evidence.
24 BY MR. KAISER:
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1 Q. I want to show you what's been marked for
2 purposes of identification as Exhibit 41, which I
3 believe has been offered and admitted into
4 evidence.
5 MR. CARSON: Can I, I'm sorry to
6 interrupt, but can I just raise a question with
7 respect to Exhibit 60? Is there a difference
8 between 60 and 33? Looks like 33 is one that has
9 Mr. Shiner's signature on it and 60 does not.
10 And, I don't have a note as to whether 33 was
11 already in or not, but perhaps for the sake of
12 avoiding duplication and so the record is clear,
13 we can just put one or the other.
14 HEARING OFFICER: 33 was never introduced
15 in this meeting. And, there are several numbers
16 of exhibits that were pre-numbered that have not
17 been introduced, and I will share with you my
18 draft list of the exhibits during our next break.
19 I'll get some copies of these. They'll assist
20 everyone, I think.
21 MR. CARSON: But, for purposes of going
22 forward, then, we're working with 60 and not 33.
23 MR. KAISER: That's correct. And, Madam
24 Hearing Officer, do you have a copy of 60 now?
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
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1 HEARING OFFICER: No.
2 MR. KAISER: Allow me to provide you
3 with one.
4 BY MR. KAISER:
5 Q. I want to show you what's previously been
6 marked for purposes of identification as Exhibit
7 41, a letter from David R. Shelton to A. Steven
8 Crown dated June, 26th 1995. And, Mr. Shelton, I
9 show you Exhibit 41 and ask you if you recognize
10 it?
11 A. Yes, I do.
12 Q. What do you recognize it to be?
13 A. It's a letter that I sent to Steven after
14 the June, 1995 noise readings were completed by
15 Mr. Shiner.
16 Q. Did the letter contain certain
17 attachments?
18 A. Yes, it did.
19 Q. Can you describe to the Board what those
20 attachments are?
21 A. The first attachment is a copy of the
22 June 20 letter from Al Shiner with his results.
23 And, I have written in my hand at the bottom the
24 results of readings at, near lot lines which Mr.
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890
1 Shiner neglected to include. And, I also noted
2 the daytime standards.
3 The second attachment is a summary of
4 secondary kinds of issues that I thought should be
5 addressed. And, the third issue is a letter
6 regarding projections, what the enclosure would do
7 and comparing that to, in the way of reducing
8 sound, as compared to what the readings, in fact,
9 were in June of 1995.
10 Q. And, were those attachments included in
11 the letter that you sent to Mr. Crown?
12 A. Yes, they were.
13 Q. On or about June 26th, 1995 and
14 identified as Exhibit 41. I note that the first
15 sentence states "The new enclosure has helped, but
16 it has not solved the air conditioner noise
17 problem." Was that, in fact, your opinion as of
18 June 26th, 1995?
19 A. Yes, it has.
20 Q. Describe again, for the Board, the sound
21 of the air conditioning unit as you experienced it
22 in your home in late June, 1995?
23 A. When the unit commenced operation in the
24 spring of 1995, we were very disappointed that the
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1 reduction in sound was not greater. In fact, it
2 was to our ear, trying to recollect back to the
3 prior fall when the system had been operating, it
4 was a very minimal reduction in the noise levels.
5 During the night of the test, the noise test that
6 Mr. Shiner conducted, however, the cones that have
7 been testified to previously were removed and
8 that, in fact, did lead to an improvement in the
9 sound levels.
10 Q. So, up until the night of the readings,
11 the impact on you was essentially the same as it
12 had been in 1994?
13 A. After the cones were removed with the
14 enclosure, there was some relief from sound.
15 However, it continued to present us with some
16 quite serious problems. We continued to have
17 difficulty sleeping, even with our windows closed.
18 A particular drone penetrates through the windows,
19 even with the storms on, we continued to keep the
20 storms on and we could hear the air conditioner.
21 It would wake us up. We continued to sleep with
22 the fans on and would sometimes sleep with ear
23 plugs. We continued to find the noise levels too
24 high in our backyard and patio, particularly later
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1 in the evening, and what, in our minds, was a very
2 serious problem. Our son couldn't sleep in his
3 room still, he had to vacate that. And, as a
4 result of all those things, the loss of sleep and
5 so on, we continued to have anxiety and stress, I
6 think being tired, depressed, that sort of thing.
7 Q. And, did you form an opinion as to what
8 was the cause of your loss of sleep in the summer
9 of 1995?
10 A. Yes, though with the cones off, the noise
11 levels were clearly reduced, it was still a
12 problem for us sleeping.
13 Q. And, when you refer to it, what are you
14 referring to?
15 A. The Crown air conditioner, the chiller.
16 MR. KAISER: I move for admission into
17 evidence of Exhibit 41 to the extent it hasn't
18 been so moved and so received.
19 HEARING OFFICER: Exhibit 41 was admitted
20 into evidence July 1st for a limited purposes.
21 MR. CARSON: No. No objection to
22 Exhibit 41.
23 HEARING OFFICER: All right, thank you.
24 Exhibit 41 is entered into evidence without
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1 restriction.
2 BY MR. KAISER:
3 Q. I want to show you what's been marked for
4 purposes of identification now and received into
5 evidence as Exhibit 41. And, I want to direct
6 your attention to the 5th page, the section which
7 you've entitled Other Issues and dated June 26th,
8 1995. Did you, in fact, create this document,
9 this attachment, other issues, about that date?
10 A. Yes.
11 Q. And, I believe you just talked about the
12 noise reduction gotten from the enclosure was must
13 less than expected. I note that in the Paren 2,
14 you note sound surges were not tested. What do
15 you mean by that?
16 A. The tests were being conducted at 10:00
17 o'clock or later on Monday evening. As a result,
18 we limited the test. In fact, this was limited to
19 a protocol that had been agreed to by Mr. Shiner
20 and Mr. Mautner, and that didn't include any
21 measurement of the impact of a compressor cycling
22 on and off. And, those were the sound surges I
23 was referring to.
24 Q. And what impact had those sounds had on
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1 you and your family?
2 A. They were particularly disruptive, the
3 change in sound levels in particular would awaken
4 us or caused you to start if it were during the
5 day time.
6 Q. I note that at Paren 3, you note sections
7 that are sound levels, levels were tested. What
8 do you mean by that statement?
9 A. We'd been concerned from the beginning of
10 this whole matter that particularly our son's
11 second floor bedroom was directly overlooking the
12 Crown air conditioner, and the enclosure that they
13 built did not have anything on top of it. As a
14 result, there was a direct line of sight from his
15 room to the air conditioner and the noise levels
16 weren't any louder in our sound room, they were
17 quite loud. And, unfortunately, that night, those
18 noise levels were tested.
19 Paren 4, sound pulsations, beatings
20 were not tested. What are you referring to by
21 sound pulsations?
22 A. Particularly during 1994 and the early
23 part of 1995, one could hear increases and
24 decreases in the sound levels which I've used the
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1 term "beating" to describe them. And, it's my
2 understanding, I realize I'm a layman, that that's
3 the result of different components of the Crown
4 chiller getting into and out of phase with each
5 other. It increases, then decreases. It's a
6 pulsating kind of rhythm to it and we could listen
7 to that all night in our beedroom.
8 Q. Paren 5 shows frequency problems. What
9 are you referring to?
10 A. I must say it was drawn up on some of the
11 information that Mr. Shiner provided along the
12 way. Particularly, in our bedroom, there seemed
13 to be a particular drone that was very
14 bothersome. Mr. Zack had thought that it might be
15 what he calls a discreet tone problem, which I
16 believe he alluded to in his testimony last week.
17 It's a particularly low frequency at which the
18 frequencies on either side are much lower. And,
19 when that phenomenon happens, it can cause a
20 particularly irritating sound.
21 Q. Where, if ever, have you experienced that
22 type of particular irritating sound?
23 A. Our bedroom.
24 Q. When you say your bedroom, you're
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896
1 referring to your bedroom at 707 Ardsley Road in
2 Winnetka, Illinois?
3 A. Yes.
4 Q. During what time frame did you experience
5 that especially irritating sound?
6 A. During the evening hours when we're
7 trying to sleep.
8 Q. Did you experience that during the summer
9 months of 1994?
10 A. Yes.
11 Q. Did you experience that in the late
12 spring and early summer of 1995?
13 A. Yes.
14 Q. Duration of sound, Paren 7. What are you
15 referring to there?
16 A. I was referring to the fact that in my
17 experience, when people think of residential air
18 conditioners, they think of air conditioners that
19 are used on particularly hot days and not on days
20 when it isn't so hot. And, living relatively near
21 to the lake shore, we have a lot of cool days.
22 And, as a result, most people that I know don't
23 operate their air conditioners at their homes
24 constantly. Even when they are operating, the
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897
1 units are frequently cycled off and may not run at
2 all during the night if things are cooled down.
3 The Crown chiller is completely unlike that. It
4 essentially operates 24 hours a day for many
5 months at a time.
6 Q. Without interruption or relief?
7 A. There, I should say there was a change
8 made sometime in the spring of 1995, I think it
9 was my impression it was just prior to the Shiner
10 tests in June of 1995 where they reduced--back up
11 for a moment. They adjusted the system controls
12 so that the system did not cycle on and off as
13 frequently as it had before. That, in fact, there
14 was some part of the system that was on absolutely
15 continually, and then other parts would kick on
16 and off above that. But, I sort of lost track of
17 where I was on the question there. That's
18 essentially what I mean by duration of this thing.
19 Right now, it operates continually.
20 Q. Thank you. I want to show you now, I
21 want to back track just a bit and show you what
22 we've marked for purposes of identification as
23 Exhibit 37, a handwritten letter from you to
24 Steven Crown dated 5-19-95. Showing you a copy of
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1 that, ask you if you recognize that.
2 A. Yes, I recognize this.
3 Q. What do you recognize that to be?
4 A. It's a letter that I sent to Steven
5 talking about the spring readings that we had,
6 noise readings that we had agreed to in our
7 meeting with Village officials in January, 1995.
8 Q. Is that a true and accurate copy of the
9 letter that you sent to Mr. Crown on May 19, 1995?
10 A. It is.
11 MR. KAISER: Move for admission into
12 evidence of Exhibit 37.
13 MR. CARSON: Could we have just a
14 moment?
15 HEARING OFFICER: Yes. Let the record
16 reflect that Exhibit 37 does not include any
17 readings per se.
18 MR. CARSON: No objection to 37.
19 BY MR. KAISER:
20 Q. Showing the witness what's marked
21 previously for purposes of identification as
22 Exhibit 8, a letter from David Shelton to A.
23 Steven Crown dated June 16, 1995. Showing it to
24 the witness, ask you, Mr. Shelton, do you
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
899
1 recognize that?
2 A. Yes.
3 Q. What do you recognize it to be?
4 A. It's a letter to Steven that I wrote
5 concerning the noise level tests conveying, I
6 think, some frustration that it was taking him so
7 long to get them done. And also conveying to him
8 that we were still having serious problems with
9 noise levels.
10 Q. Is that a true and accurate copy of the
11 letter that you sent to Mr. Crown on or about June
12 6th, 1995?
13 A. Yes, it is.
14 MR. KAISER: Move for admission into
15 evidence of Exhibit 8.
16 MR. CARSON: No objection to 8.
17 BY MR. KAISER:
18 Q. Showing counsel for Respondent what's
19 previously been marked for purposes of
20 identification as Exhibit 28. Showing a copy to
21 the witness. It's a letter from David R. Shelton
22 to A. Steven Crown dated June 12, 1995. Mr.
23 Shelton, do you recognize that letter?
24 A. Yes.
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
900
1 Q. What do you recognize it to be?
2 A. A letter I sent to Steven concerning the
3 noise tests and the fact that the noise continued
4 to be a problem for my family.
5 Q. Is that a true and accurate copy of the
6 letter you sent to Mr. Crown on or about June
7 12th, 1995?
8 A. It is.
9 MR. KAISER: Move for admission into
10 evidence of Exhibit 28.
11 MR. CARSON: No objection.
12 HEARING OFFICER: All right.
13 BY MR. KAISER:
14 Q. Showing the witness, showing counsel for
15 Respondents first a copy of a letter dated June
16 30th, 1995 from A. Steven Crown to David R.
17 Shelton. I believe it's previously been offered
18 and admitted into evidence as Exhibit 40. Mr.
19 Shelton, I ask you to take a look at that document
20 and tell me if you recognize it?
21 A. Yes, I do.
22 Q. What do you recognize it to be?
23 A. This is a letter I receive from Steven,
24 actually received it in early July, saying that
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1 the results of the Shiner test notwithstanding,
2 they were not going to do anything more about the
3 noise.
4 Q. What was your emotional response to the
5 receipt of that letter?
6 A. To answer the question, I need to back up
7 for just a moment, I think, to characterize my
8 whole mindset at the time. I've described, again,
9 the physical reactions we were continuing to have
10 with the noise. By this time, I was also getting
11 very horribly frustrated and concerned about the
12 opportunity cost of what this thing was, this
13 whole matter was doing, the amount of time it was
14 taking, you know, the thought being essentially
15 that I have a terrific family and I have some
16 interesting business things going on, the world
17 has all kinds of things happening, the last thing
18 in the world we need to do is to be talking about
19 an air conditioner problem. I was unbelievably
20 frustrated at the cost of not being able to do
21 those things because of having to deal with this
22 whole matter. I kept asking myself where could we
23 have done something differently so we hadn't
24 gotten to this point. I couldn't find anything.
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1 I was very scared of where this letter left us. A
2 line had been drawn in the sand the prior January
3 when they told us they would do no more, and that
4 forced us to go to the Village. A line in the
5 sand was being drawn again, which was going to
6 have to force us to go to Pollution Control or
7 some kind of litigation. The thought of pitting
8 our resources against those of the Crowns in
9 litigation was, quite frankly, very scary to me.
10 MR. CARSON: Objection to that last
11 comment and move to strike it. It's irrelevant
12 and it's prejudicial. It's clearly inappropriate.
13 MR. KAISER: It's responsive, Madam
14 Hearing Officer, to the question asked, what was
15 his emotional response? It's just a genuine
16 reaction and appropriate testimony.
17 MR. CARSON: It may be a genuine
18 feeling, but it also is an attachment to object
19 property into this proceeding that's never a
20 consideration for this Board or any governing
21 body.
22 MR. KAISER: It goes to the legitimacy of
23 this complaint in so many regards as to what
24 caused him to finally take this step and to pursue
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1 litigation and to see it through. I think it
2 gives credance to all of his testimony concerning
3 the extent of the problem and the unreasonableness
4 and the interference with his life. And, this is
5 just one component. Granted, Respondent's don't
6 want to hear about, don't want the Board to
7 consider it, but it's something that was in his
8 mind and is an appropriate consideration for the
9 Board.
10 HEARING OFFICER: The objection is
11 overruled. However, the witness' testimony with
12 respect to the financial resources of the parties
13 is not admissible for the truth of the matter
14 asserted.
15 A. Finally, going through my mind was a
16 grave disappointment that the Village hadn't been
17 able to solve our problem, and a continued feeling
18 of utter helplessness that here we were, we were
19 precluded from putting an addition onto our house
20 because it would make us closer to this noise
21 problem. On the other hand, this thing was
22 clearly handicapping our ability to sell our home.
23 And, it was clearly taking away the joy of living
24 in our home. Maybe the right adjective was
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904
1 despair, was in despair when I saw this. I
2 couldn't believe it was happening. So, that was
3 my reaction when I got this letter.
4 Q. I want to show you what's previously been
5 or perhaps not previously been marked, but --
6 well, previously been marked, I can't frankly
7 state whether it's been offered or accepted into
8 evidence, it's Exhibit 22, a handwritten letter
9 from David Shelton to Steven Crown dated September
10 21st, 1995.
11 HEARING OFFICER: That was entered into
12 evidence on July 1st for limited purposes.
13 BY MR. KAISER:
14 Q. I want to show you Exhibit 22, Mr.
15 Shelton, ask you if you recognize that?
16 A. Yes, I do.
17 Q. What do you recognize that to be?
18 A. It's a note that I sent to Steven Crown
19 in September after receiving his June 30, I
20 believe it was, letter. Our correspondence and
21 communications had dropped off markedly. In fact,
22 I'm not sure if we had any during that time
23 period. However, the air conditioner was
24 continuing to run and I, in fact, did keep
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905
1 notations during this time period. There were
2 nights when our thermometer showed temperatures in
3 the '30's, '40's and '50's when the air
4 conditioner was running.
5 Q. Is that farenheit?
6 A. It is.
7 Q. Where is that thermometer located?
8 A. Outside our current window.
9 Q. Have you ever had the opportunity to
10 observe the reading on your thermometer outside
11 the window at your residence at 707 Ardsley Road
12 in Winnetka, Illinois and compare the purported
13 temperatures that you saw on your thermometer with
14 those you heard on radio or television broadcasts?
15 A. I've noticed over time that it seems to
16 be reasonably accurate, particularly within a mile
17 of the lake shore. There's frequenly a fairly
18 large difference between the temperature reported
19 at O'Hare and Midway and what it is at the lake
20 shore. But generally, it's been reasonably
21 accurate. Certainly, I would think within plus or
22 minus 5 degrees or so. But, which accuracy seemed
23 sufficient to me to continue to be nonplussed at
24 the fact that here it is with our thermometer
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1 showing the '50's and the '40's even on a couple
2 of occasions the '30's, and the air conditioner is
3 running.
4 Q. And, when you say the air conditioner
5 again, just for precision, what air conditioner
6 are you referring to?
7 A. The Crown chiller. And, I might add that
8 it's been our experience that as it gets colder,
9 the noise actually seems to be louder. Whether
10 that's because colder air transmits sound better
11 or not, I don't know what the phenomenon is. But,
12 that's our sensation. So, it particularly drove
13 us up a wall to have the system operating when it
14 was that cold. This particular letter, in
15 response to your question, I faxed to Steven in
16 September. Susi, I was having a cornea transplant
17 and really needed to get some sleep. And so, I
18 faxed this letter to him. I don't know if he was
19 in his office to see it or not, but I in any
20 event, the air conditioner was not shut off.
21 MR. KAISER: Move for admission into
22 evidence of Exhibit 22 without restriction.
23 MR. CARSON: No objection.
24 MR. KAISER: Madam Hearing Officer, I
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
907
1 would like to show to counsel for Respondents what
2 I'm marking for purpose of identification as
3 Exhibit 109. Tendering a copy to Respondent's
4 counsel and also showing the original to Madam
5 Hearing Officer. This is a certified copy of
6 portions of the Winnetka Village Code pertaining
7 to free standing heating or cooling devices. As
8 I'm sure you're aware, Illinois Revised Statutes
9 provide for judicial notice of village codes and
10 any municipal ordinances. And, we would, at this
11 time, move for admission into evidence of Exhibit
12 109.
13 MR. KAISER: The effective date, Mr.
14 Elledge, is January 17th, 1996.
15 MR. CARSON: If you don't mind my asking
16 23.35, that's pertinent here?
17 MR. KAISER: That's correct. That's
18 right.
19 MR. CARSON: Can we go off the record for
20 just a moment?
21 HEARING OFFICER: Let's go off the record
22 for a moment.
23 (WHEREUPON, the luncheon recess was
24 taken)
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
908
1 AFTER RECESS
2 MR. DIVER: Madam Hearing Officer, back
3 on the record? I believe the last thing we were
4 talking about were two identified exhibits, 108
5 and 110. 108 being a purported copy of the
6 Winnetka Village Code and Plaintiff's 110 being a
7 purported copy of an ordinance--
8 MR. CARSON: 153-95.
9 HEARING OFFICER: Yes. And counsels,
10 would you please note that on my draft exhibit
11 list, the second entry 109 should read 110. That
12 was an inadvertent --
13 MR. DIVER: 110 should be for the
14 ordinance.
15 HEARING OFFICER: Yes.
16 MR. DIVER: On reviewing these and
17 having considered Madam Hearing Officer's comment
18 as to whether or not an actual change was effected
19 and if so, what, by virtue of this ordinance, what
20 we've determined to do is to wait until we return
21 the next time for hearing and then present a copy,
22 a certified copy of the ordinance as it was before
23 being amended and make that as our last element of
24 proof in the case. Basically, the ordinance prior
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
909
1 to amendment.
2 HEARING OFFICER: All right. And, I
3 don't think we have any motion for the
4 introduction of these exhibits into evidence at
5 this time, is that correct?
6 MR. KAISER: That's correct.
7 HEARING OFFICER: Okay.
8 MR. DIVER: We'll bring those back as
9 the first item of business at our next hearing
10 date and make that as the last element of our
11 case.
12 HEARING OFFICER: Okay. We'll handle
13 that as a preliminary activity in August.
14 MR. DIVER: The 19th.
15 HEARING OFFICER: 19th. All right. Mr.
16 Kaiser, you wish to proceed with testimony of Mr.
17 Shelton?
18 MR. KAISER: Yes, if I may.
19 BY MR. KAISER:
20 Q. Showing counsel for Respondents, having
21 previously shown counsel for Respondent's what's
22 marked for purposes of identification as Exhibit
23 111, I'm showing a copy of that exhibit, which
24 states at the top, Plat of Survey, B.H. Suhr and
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
910
1 Company, Inc., that's S-u-h-r. Showing you this
2 document, Mr. Shelton, I ask you if you recognize
3 that?
4 A. Yes.
5 Q. What do you recognize that to be?
6 A. It's a Plat of Survey of our home.
7 Q. And, that's your home at 707 Ardsley
8 Road, Winnetka, Illinois?
9 A. Yes.
10 Q. Did you cause that survey to be
11 performed?
12 A. Yes.
13 Q. And, is this a document that's been in
14 your files?
15 A. Yes.
16 Q. Is this a true and accurate copy of the
17 survey you received on or about November 6th,
18 1991?
19 A. Yes, it is. I'm noticing for the first
20 time that it does say one story brick residence.
21 I don't know if they're counting our second story
22 as one and a half story and, therefore, one, or if
23 it's two story. But, other than that, this is,
24 it's true and accurate as to what I received.
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
911
1 Q. Looking at where your one story, what's
2 identified as a one story home, but in November of
3 1992 was, in fact, a 2 story home, does that, can
4 you confirm whether that indicates where your
5 residential structure is located within your lot
6 lines?
7 A. Yes, it does accurately show that.
8 MR. KAISER: I move for admission into
9 evidence of Exhibit 111.
10 MR. CARSON: No objection to 111.
11 HEARING OFFICER: Number 111 is entered
12 into evidence.
13 BY MR. KAISER:
14 Q. Mr. Shelton, I'd now like to talk with
15 you a little bit about the subject that came up
16 during the course of Mr. Crown's examination.
17 You'll recall that there was testimony from Mr.
18 Crown that at one time in, I believe it was the
19 Spring of 1993, you had offered to sell your home
20 at 707 Ardsley Road to Mr. Crown. Do you recall
21 that testimony during Mr. Crown's examination?
22 A. Yes, I do.
23 Q. Please tell us the circumstances
24 surrounding that offer of sale?
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
912
1 A. By the spring of 1993, we were thinking
2 about the second phase of our addition plans.
3 However, we were also a little concerned that we
4 had, as I mentioned earlier, lived through a half
5 a construction project before and also by that
6 time, we had been living next door to the Crown
7 construction for some year and a half. And, we
8 were a little concerned about going forward and
9 living through another project. The reality of it
10 was a little more intimidating than the original
11 thoughts about it scattered over the years. We
12 thought that perhaps a better alternative would be
13 to find a house that had the remaining things that
14 we felt we needed without an addition. However,
15 we were concerned about selling the house on
16 Ardsley and going out and looking for a new one
17 because of the risk and hassle of listing the
18 house for sale. We had, in fact, had a very bad
19 experience in 1989 when we bought the house at 707
20 Ardsley, we ended up with two houses for almost a
21 year. And, that left a very sharp memory in our
22 minds. And so, we were hesitant on the one hand
23 to go forward with construction. But, on the
24 other hand, to go through the effort of listing
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
913
1 the house. As we talked about this, it came to
2 our minds that perhaps our neighbors, the Crowns,
3 though they weren't living there yet, might be
4 interested in our house. They were obviously
5 undertaking a mamouth construction project that
6 was on, for the size house, a relatively small
7 piece of land. And so, it seemed that they would
8 be an obvious possibility of someone who might be
9 interested in buying our house without us having
10 to go through the risk and hassle of listing it.
11 So that I called Steve and told him about it. He
12 asked what we would be asking for the house. I
13 told him that I would need to talk with some
14 brokers to get an idea and would get back to him.
15 I did that, I got back to him with an indicated
16 value. His reaction was that while that might be
17 a fair value with a house on it, they would be
18 looking at it as vacant land and it would not be
19 worth nearly as much to them. There was a big
20 difference. And so, I said I completely
21 understand, and that was the end of it. We never
22 broached the subject again.
23 Q. Now, I want to talk about an issue that
24 came up during the course of your wife, Susi
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
914
1 Shelton's, testimony and that is the decision you
2 and Susi made in January of 1996 to relocate your
3 family to the State of Ohio. Can you please
4 describe for us the considerations that entered
5 into your decision to locate your family to the
6 State of Ohio in January of 1996?
7 A. Yes. If I can previously back up, I'm
8 President of a company called Montgomery Shelton &
9 Company. I have two partners in the business, and
10 we have, over the years, acquired some different
11 businesses. When I say we, the principals along
12 with some other investors. One of those
13 businesses is a company called the NEEF Company
14 and it's located in Greenville, Ohio,
15 manufacturers and markets directly to schools,
16 awards product letters, banners, school jackets,
17 things of that sort. I played the role of CEO of
18 the company since we acquired it in 1987. Since
19 1991, I have, in fact, spent a lot of time with
20 the company making 3 to 4 trips per month to the
21 company of 1 to 3 days at a time. In the fall of
22 1995, the Board of the company asked if I would
23 step in full time as its Chief Operating Officer,
24 as well as the CEO of the business. And, the
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
915
1 expectation was that I would do that for a year
2 and a half, by which time we would recruit a new
3 President from the outside. I agreed to do that,
4 with the realization that this would require some
5 increase in my commuting to make, to being a
6 regular weekly event going down on Monday morning,
7 coming back on Thursday night was the expectation
8 that we had. After talking this over with Susi,
9 my wife, we concluded that the commuting is
10 certainly not desirable. On the other hand, it's
11 certainly been manageable for the years since
12 we've been doing it in 1991. And, the idea of
13 moving the family, taking the kids out of school
14 mid year and causing all that dislocation is
15 something that we didn't want to do. So, on
16 balance, those things alone considered, we would
17 have continued with the commuting for the extra
18 year and a half. However, the toll of all that's
19 gone on regarding the air conditioner, the noise
20 and all of the anguish that's gone on in trying to
21 get this problem resolved has taken a toll,
22 serious toll, particularly on my wife, who's been
23 at home most of the time during the day, as well
24 as evening, and had to bear the brunt of it. And,
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
916
1 as we talked about it, we concluded that, you
2 know, it might be good for all of us to get away
3 from this, to try to relieve some of the stress.
4 So, with that thinking, we decided that we'll go
5 ahead and move down to Ohio for the year and a
6 half. And, that's the reason for the relocation.
7 Q. And then since January of 1996, you and
8 your family have been residing in the State of
9 Ohio?
10 A. We've been, Montgomery Shelton & Company
11 still has its office in Winnetka. My office is
12 still there. We've rented our home in Winnetka to
13 tenants. We have rented a home in Greenville for
14 that 18 month period, and have been living down
15 there for that time period.
16 Q. How have your children adjusted to the
17 move?
18 A. The move has not gone well for our
19 family. It's been much more difficult than we had
20 realized. There's been considerable culture shock
21 involved. Also, I think taking the kids out of
22 school mid year made things quite a bit more
23 difficult than we had expected they would. As a
24 result, our kids are, in varying ways, struggling
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
917
1 quite badly. And, we have essentially concluded
2 that we need to come back to Winnetka to get them
3 back into school here sooner rather than later.
4 We've also, by the way, been quite disappointed in
5 the quality of the schools in Greenville. We knew
6 that they weren't terrific schools, but due to a
7 long period of financial problems they are, in
8 fact, quite disappointed. So, we're planning, as
9 of right now, to relocate back to Winnetka prior
10 to the start of this coming school year, the
11 1996-97 school year, and we'll have to make
12 temporary housing arrangements until our lease on
13 our house is terminated next spring. And, I will
14 resume commuting at that time.
15 Q. Mr. Shelton, have you, we're referring in
16 your testimony towards the latter part of the
17 morning to the lost opportunity costs that this
18 whole air conditioner problem has caused you to
19 incur. Could you again describe for the Board
20 what you mean by lost opportunity or the
21 opportunity cost, what that concept means to you?
22 A. Yes, there are two aspects of it. One is
23 very difficult to quantify, and it has to do with
24 the pain and suffering in a situation like this
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
918
1 and the distraction, loss of sleep, tiredness,
2 that sort of thing which can reduce your
3 effectiveness. And, whether that be in business
4 or family matters, that has a cost to it. And, I
5 don't know how to quantify that. However, we have
6 made some effort to determine the other kind of
7 opportunity cost which has to do with actual time
8 you had to spend working on the problem as opposed
9 to doing other things. We didn't keep a detailed
10 log all the way through this, we had no idea it
11 was ever going to come to all of this. However,
12 we have gone back and can reasonably estimate that
13 for specifically identifiable kind of time, it's
14 excluding the hearing times and so on, the travel
15 times here, so on, the food, 400 hours and I would
16 guess that that's, you know, only a small part of
17 the time that we spent on this, my wife and I
18 together since this has been going on.
19 Q. So that number, 400 hours represents time
20 you and Susi have spent?
21 A. Going to meetings, writing letters, going
22 to the sound readings, preparing for things, that
23 sort of thing. And, again, I didn't begin to
24 count the numerous phone calls and that sort of
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
919
1 thing, or contemplation time that went into this.
2 The research time, you know, in addition to the
3 Trane people here in Chicago, I talked to Trane
4 engineers at the production plant in Tennessee.
5 I've talked to the air conditioning refrigeration
6 institute, I talked to U.S. EPA, I talked to the
7 Illinois EPA. I didn't count all of that time.
8 Q. You did not count that time, is that your
9 testimony?
10 A. Certainly not all of it. I'd have to go
11 back and look at it in detail, but most of it I
12 certainly didn't count.
13 Q. Is it my understanding you excluded from
14 that total the time spent in hearing?
15 A. Yes.
16 Q. And have you, in fact, been present
17 throughout the hearing?
18 A. I have.
19 Q. Are you aware of the current operational
20 instructions for the Crown air conditioning unit?
21 A. Yes, I am. I was present at the readings
22 a couple of weeks ago when they tested the system
23 with those operating instructions.
24 Q. And, what is your understanding of how
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
920
1 the system is to operate currently?
2 A. It's my understanding that it's geared
3 for one compressor, I believe it's the 10 ton
4 compressor, to operate along with one or possibly
5 two fans between the hours of 10:00 p.m. and
6 either 6:00 or 7:00 a.m., I've forgotten exactly
7 which.
8 Q. And, do you have an opinion as you sit
9 here this afternoon, as to whether that would be
10 an effective remedy to the noise problem you've
11 been enduring for in excess of two and a half
12 years now?
13 MR. CARSON: Objection to the form of the
14 question, and also it's calling for a conclusion.
15 HEARING OFFICER: Can you rephrase the
16 question?
17 BY MR. KAISER:
18 Q. Do you have an opinion, as you sit here
19 this afternoon, as to whether the operating
20 instructions that you have just described will
21 cause a reduction in noise from the Crown air
22 conditioner that will be sufficient to allow you
23 to sleep at night.
24 MR. CARSON: Same objection.
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
921
1 HEARING OFFICER: Sustained.
2 Q. Do you have an opinion concerning these
3 proposed operating instructions that are
4 currently in place?
5 MR. CARSON: Same objection. It's calling
6 for an opinion.
7 MR. KAISER: A witness who is capable of
8 rendering an opinion. I don't understand that as
9 a basis for objection.
10 HEARING OFFICER: Sustained.
11 BY MR. KAISER:
12 Q. Were you present during these sound
13 readings taken by Greg Zack in the latter part of
14 June, 1996?
15 A. Yes -- in the latter part of 1996 or--
16 Q. Yes, wasn't that June, late June of 1996?
17 A. Oh, late June.
18 Q. Late June of 1996.
19 A. I'm sorry, you said the latter part of
20 1996.
21 Q. Yes.
22 A. Yes, I was.
23 Q. Did you have an opportunity to listen to
24 the sound eminating from the Crown air conditioner
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
922
1 during that evening in late June, 1996?
2 A. Yes, I did?
3 Q. At what different locations on your
4 property and on the Crown property did you have an
5 opportunity to hear the sound from the air
6 conditioning unit in late June, 1996?
7 A. During the course of measurements, we
8 were moving around the perimeter of the air
9 conditioner, the chiller primarily on the north
10 side. The readings themselves were taken directly
11 north of the chiller. There were then some
12 readings done on our property at the southeast
13 corner of our house. So, I listened from there as
14 well and I also walked out into our back yard and
15 patio.
16 Q. Can you describe for the Board how the
17 sound that you heard in late June of 1996 compares
18 to the sound you had last experienced on your
19 property in October or November of 1995?
20 A. The, it's very difficult with the gap in
21 time to make a direct comparison. I found the
22 sound level to be very troublesome, and as I
23 walked around my backyard, that's the dominant
24 sound and in the past found myself being
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
923
1 completely enveloped in the sound. It's, as far
2 as I can tell, not a great reduction. I did not
3 have the opportunity to go to the second floor
4 that evening, but certainly Mr. Zack's tests
5 showed, the sound levels at the second floor, even
6 at this one third operating condition, are
7 extraordinarily loud, and that would continue to
8 be a very serious problem. In fact, as I recall
9 the readings, they were well above the daytime
10 readings, let alone the nighttime readings 60 feet
11 away from the chiller. It would also be, with
12 this limited operation, which was well in excess
13 of both nighttime and daytime standards, be very
14 concerned about the fact that they are only
15 talking about this limited operation between 10:00
16 p.m. and 6:00 or 7:00 a.m. in the morning, which
17 means that we'd have to endure the full force of
18 the machine during the evening hours when we'd
19 like to be out on the patio enjoying an evening
20 dinner and so on. And, during the early morning
21 hours when, particularly on the weekends, our kids
22 would like to sleep in and so on. That would
23 certainly be impossible after that kind of an
24 operating regime. Plus, as Mr. Crown
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
924
1 acknowledged, they and Mr. Mautner, they can't
2 commit that this is a workable solution and
3 certainly they don't know what will happen if
4 there are a lot of people in the house and they
5 have a party. Can that limited operation cool the
6 house? They frankly don't know. Furthermore,
7 what would happen if they were to sell the house
8 or there were guests there when they weren't, and
9 they got too hot, would they turn on the unit, you
10 know, it's just not a permanent solution, it's
11 nothing that they can guarantee. I think it would
12 be a presumption for continued strife because it
13 can't be policed. It's just not a permanent
14 solution.
15 MR. KAISER: Thank you, Mr. Shelton, I
16 have no further questions at this time.
17 MR. CARSON: Can we take just a few
18 minutes?
19 HEARING OFFICER: Yes, I believe we have
20 come to the conclusion of the Complainant's case
21 in chief.
22 MR. DIVER: Madam Hearing Officer, with
23 the exception of the documents that we indicated
24 that we would attempt to put on during, at the
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
925
1 very close of our case, the only other matter that
2 remains, and I'm not sure procedurally how exactly
3 Madam Hearing Officer would like to do this, but
4 there's a matter of interrogatory answers that we
5 would like to have the Board consider that as
6 interrogatory answers which were filed by Mr.
7 Crown, as well as the request to admit facts that
8 were served upon Defendant and were unresponded
9 to. We would move to have both those considered
10 by the Board, if such a motion is necessary, to
11 allow the Board to consider those documents which
12 are already to be reported.
13 HEARING OFFICER: I believe those have
14 been filed with the Board and that includes
15 responses that Respondents counsel made on behalf
16 of Respondent.
17 MR. DIVER: I believe that the requests
18 to admit were filed and there were objections to
19 certain of them.
20 HEARING OFFICER: Okay. Let's go off
21 the record for just a couple of minutes, then.
22 (WHEREUPON, a short recess was
23 taken.)
24 HEARING OFFICER: Back on the record, and
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
926
1 we'll have the cross-examination of Mr. Shelton at
2 this point in time.
3 CROSS EXAMINATION
4 BY MR. CARSON
5 Q. Mr. Shelton, if I understood your
6 testimony correctly you're the Chief Operating
7 Officer of a company that's based in Greenville,
8 Ohio, is that correct, sir?
9 A. Yes.
10 Q. And, I think you indicated it was to be a
11 one and one half year term?
12 A. Yes.
13 Q. And, has that been committed to any sort
14 of Board resolution, the one and one half year
15 term?
16 A. I don't believe that the specific term
17 was in the Board resolution. I don't believe, I'd
18 have to go back and look at the Board resolution.
19 Q. But, you understood it was to be a term
20 of one and one half years, though, is that right?
21 A. Yes.
22 Q. And, has the successor been named yet,
23 sir?
24 A. No, he has not.
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
927
1 Q. Okay. Now, you said on direct
2 examination that you're planning to move back to
3 Winnetka before the commencement of school in the
4 fall of 1996, is that correct?
5 A. We're about 95, 96 percent determined
6 that that's what we will do, yes.
7 Q. So, you're not 100 percent sure at this
8 time?
9 A. Until we've actually done it, I suppose
10 there's always some possibility that we won't, but
11 we are essentially there. We just have to make
12 sure that the kids can get into the Winnetka
13 School system, we can get that back on track.
14 We're in the process of doing that right now.
15 Q. In fact, at one time you have stated,
16 haven't you, that we're planning to stay in
17 Greenville, Ohio into 1997?
18 A. I don't believe I had said that.
19 Q. Did you ever plan to stay in Greenville,
20 Ohio into 1997?
21 A. We have never planned that. It's
22 possible that it could have extended beyond that
23 for an extra year or so. But, certainly that was
24 never our plan. The year and a half revolved
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
928
1 around the end of the school year.
2 Q. Did you ever state that you planned to
3 return to your home in Winnetka after March of
4 1997?
5 A. After March of 1997?
6 Q. Yes, sir.
7 A. Our plans were after June of 1997, the
8 lease on our house in Winnetka expires in June of
9 1997, as does the lease that we have on the house
10 in Greenville expires in June of 1997.
11 Q. I see. You have a lease on your home in
12 Winnetka. It's being occupied by some tenants,
13 right?
14 A. Yes.
15 Q. And, another lease in Greenville, Ohio
16 pursuant to which your family is now occupying
17 your home there, right?
18 A. Yes.
19 Q. And, both leases expire in June of 1997?
20 A. Yes.
21 Q. Yet, you stated on direct examination or,
22 and is corrected by you now that you're 96 or so
23 percent sure that you're going to be returning to
24 Winnetka in 1996?
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
929
1 A. Yes.
2 Q. And has that been something that has come
3 up recently as far as your plans?
4 A. We've talked about it for a number of
5 weeks as a possibility. Things have not gone well
6 for our kids at Greenville Schools academically.
7 We've been very disappointed in the schools and
8 emotionally our daughter, in particular, is having
9 a very serious bout with depression, and our
10 youngest son needs some particular help that he
11 just can't get.
12 Q. Mr. Shelton, excuse me. I don't want to
13 interrupt you, but my question was really pretty
14 straightforward. Have you recently arrived at
15 this decision, this 96 percent sure decision to
16 come back to Winnetka in 1996?
17 A. In the last week or so, yes.
18 Q. So, if you had said in March of 1996 that
19 you were planing to stay in Greenville, Ohio for
20 another year, that statement was accurate at that
21 time?
22 A. As of that time, correct, yes.
23 Q. I see. It's only right on the verge of
24 this hearing, in fact, that you've determined that
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
930
1 maybe we'll come back to Winnetka?
2 A. I can assure you that it has nothing to
3 do with this hearing, if that's what you're trying
4 to suggest.
5 Q. Isn't it the case, sir, that you may, in
6 fact, never move back to Winnetka?
7 A. Exceptionally unlikely.
8 MR. KAISER: Objection, argumentative.
9 A. We've lived in Winnetka since 1979, which
10 is almost 20 years. This is our home. We
11 consider it to be our home. I think I explained
12 our reasons for moving which, in fact, had largely
13 to do with getting away from a very difficult
14 situation. It hasn't worked out. It's been very
15 difficult for the kids, we're trying to rectify it
16 for the kids.
17 Q. As I understand it, your reasons for
18 moving, you felt that the reasons were so
19 compelling, you actually took your kids out of
20 school mid-year, is that right?
21 A. Yes.
22 Q. This was in February that you moved to
23 Greenville, Ohio?
24 A. January.
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
931
1 Q. January of which year?
2 A. 1996.
3 Q. Okay, January of 1996, you took your kids
4 out of school, moved to Greenville, Ohio. Was the
5 annoyance from the air conditioner particularly
6 difficult in January of 1995?
7 MR. KAISER: Objection.
8 MR. DIVER: Or 1996?
9 MR. CARSON: 1996, excuse me 1996?
10 A. The anticipation of noise in the spring
11 and summer of 1996, anticipation in January of
12 1996 and the strain of the whole situation, trying
13 to get this thing resolved has placed on our
14 family was sufficient to make us move, yes. The
15 air conditioner obviously wasn't running in
16 January of 1996.
17 HEARING OFFICER: Okay. Mr. Shelton,
18 would you please try to answer the question, only
19 the question that's asked and as succinctly as
20 possible. And also, if an objection is raised,
21 please wait to answer the question until the
22 objection has been resolved.
23 A. Yes, ma'am.
24 HEARING OFFICER: Thank you.
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
932
1 BY MR. CARSON:
2 Q. So my understanding is correct, Mr.
3 Shelton, that your kids were taken out of school
4 mid year and the family relocated to Ohio at a
5 time when the air conditioner wasn't operating?
6 A. Yes.
7 Q. And, based on your own experience, it
8 would be as the warmer weather would arrive in
9 spring time that you would expect the air
10 conditioner to begin operation, right?
11 A. Yes.
12 Q. So, the kids could have, in fact,
13 virtually completed the school year before and
14 have moved before the air conditioner even was
15 started, isn't that the case?
16 MR. KAISER: Objection, argumentative.
17 MR. CARSON: I don't know what's
18 argumentative about it. It's a pretty
19 straightforward question.
20 MR. KAISER: It's a question that can be
21 written into Respondent's briefs and doesn't
22 really require an answer. There's nothing within
23 Mr. Shelton's particular knowledge that makes him
24 more credible in responding to that question than
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
933
1 anybody on the planet would be. Its essence is to
2 argue facts and to elicit clarification or
3 additional information.
4 HEARING OFFICER: I find the question
5 calls for a rather hypothetical answer, and so I'm
6 going to sustain the objection.
7 BY MR. CARSON:
8 Q. When was it that you entered into the
9 lease for, to let out the Winnetka home?
10 A. I don't recall the exact execution date,
11 but the lease commenced in February. Either the
12 1st or the 15th, I'm not certain as I sit here
13 today, one of those two dates.
14 Q. And, that would be this year, 1996?
15 A. That's when it commenced, yes.
16 Q. And, is it correct that the present
17 tenants are not aware of the air conditioner
18 issue?
19 A. No, that's not correct.
20 Q. Is it a correct statement that your
21 tenants are not aware of history with air
22 conditioner?
23 A. They are aware of some of the history of
24 the air conditioner at this point.
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
934
1 Q. Okay. What point are you referring to,
2 sir, today?
3 A. No. Prior to the noise readings in late
4 June, we copntemplated having some readings done
5 from our lot line. And to that end, we found it
6 necessary to tell them that there had been
7 concerns with the neighboring air conditioner and
8 we were trying to get those resolved.
9 Q. That was at what point, sir?
10 A. January of 1996.
11 Q. So, within the last four weeks or so?
12 A. Yes.
13 MR. KAISER: Objection to this whole line
14 of questioning and move to strike. There is no
15 relevancy as to when the tenant became aware or
16 whether the tenant became aware of any issue. I
17 mean, what does it go to? What issue that's
18 critical to the resolution of this complaint is
19 addressed by this line of questioning?
20 MR. CARSON: What the condition of the
21 sound emissions were from Mr. Crown's property in
22 the summer of 1996 is the very essence of what
23 we're here to gather evidence for the Board to
24 determine.
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
935
1 MR. KAISER: And how does the knowledge,
2 if I may, how does the question asked bear upon
3 the objective or even subjective apprehension?
4 MR. CARSON: I'm interested in having the
5 Hearing Officer's ruling or answering the
6 questions the Hearing Officer might have.
7 HEARING OFFICER: Counsel, where are you
8 going with this line of questioning?
9 MR. CARSON: Well, we heard from this
10 witness on direct examination and from his wife
11 that they took it upon themselves to inform the
12 whole neighborhood, representatives of the
13 Village, and anybody else that would listen, come
14 over and listen to the noise of this air
15 conditioning unit. And, I think it's relevant
16 whether they found it appropriate to inform the
17 tenants that were going to be occupying the very
18 premises where it's unlivable for this man's
19 family.
20 MR. KAISER: The relevance has to be
21 determined. How does it bear on one of the issues
22 at question? If his sole purpose is, you know, to
23 cast dispersions on David Sheltons's character or
24 to badger Mr. Shelton while he's here this
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
936
1 afternoon, I mean, I guess I see how the question
2 is effective in that regard, as to whether it
3 provides the Board with information essential to
4 resolution of this issue, I don't see the
5 relevance, and I don't think counsel's
6 demonstrated it.
7 MR. CARSON: I'll concede it's for the
8 purpose of discrediting the witness' testimony.
9 HEARING OFFICER: The objection is
10 overruled and the motion to strike is denied. The
11 questioning may proceed.
12 A. Could you repeat the question, please?
13 HEARING OFFICER: Do we have a standing
14 question?
15 MR. CARSON: I thought we did, but I'm
16 not sure.
17 (WHEREUPON, the record was
18 read by the Court Reporter)
19 HEARING OFFICER: The record shows that
20 the answer to question was given. You may
21 proceed.
22 BY MR. CARSON:
23 Q. Mr. Shelton, is it correct, then, that
24 you did not deem it appropriate to inform your
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
937
1 prospective tenant of the history of the Crown air
2 conditioner before they entered into this lease
3 with you?
4 A. We, in conjunction with Kahn Realty, who
5 is our listing agent on the rental, concluded that
6 it was not necessary.
7 Q. So, the answer to my question is no, you
8 didn't deem it appropriate to do so?
9 A. Correct.
10 Q. Now, as I understood your testimony this
11 morning, you feel that it was your ethical
12 obligation to make a specific disclosure regarding
13 the neighbors air conditioner noise in connection
14 with your efforts to sell the house, did I
15 understand that correctly?
16 A. Yes, you did.
17 Q. But, you didn't feel any such ethical
18 obligation in entering into an 18-month lease for
19 your home, is that right?
20 A. Yes, there were two differences. The
21 first difference is that the Pollution Control
22 Board complaint had been filed some months
23 earlier, and we had a hearing date that we felt
24 comfortable was going to have this thing resolved
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
938
1 prior to the cooling season for 1996. Secondly,
2 we were talking about a relatively short term
3 rental as opposed a permanent purchase property.
4 And, those two factors together caused us to
5 conclude that on balance, it was not necessary to
6 make this disclosure on the rental.
7 Q. You concluded that it wasn't necessary or
8 appropriate?
9 A. In conjunction with Kahn, yes.
10 Q. I have a number of exhibits that I want
11 to refer to. Are the original exhibits here,
12 or --
13 HEARING OFFICER: I believe I have most
14 of them, if counsel for Complainant could bring
15 forward the others that were allowed.
16 MR. KAISER: We'll put in this stack
17 everything that we used this morning. Some are
18 duplicate copies that have been admitted, but just
19 so there is no question. And, we can sort it out
20 before the close. Thank you.
21 MR. CARSON: Off the record for just a
22 moment so we can work out the exhibits.
23 (Off the record)
24 BY MR. CARSON:
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
939
1 Q. Mr. Shelton, this is Exhibit Number 49
2 and you identified this earlier as a letter that
3 you sent to Steve Crown in October of 1993, right?
4 A. Yes.
5 Q. If I can just get a little history, prior
6 to your sending this letter, this came, I don't
7 know, almost four weeks after the initial
8 operation of the air conditioner unit, which I
9 think you testified was September 13th of 1993,
10 right?
11 A. If that's the date, yes.
12 Q. And, as I recall your testimony, you and
13 your wife were watching the news, it was 10:00 or
14 10:30 at night, and you heard a loud sound
15 outside?
16 A. Yes.
17 Q. And, I think your wife described it as an
18 explosion. You said you wouldn't call it an
19 explosion, you used another description. Do you
20 remember what it was?
21 A. I don't recall saying I wouldn't describe
22 it as an explosion, I think I characterized it as
23 a bang or boom, more than one, it was several of
24 them. It certainly could be characterized as an
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
940
1 explosion.
2 Q. Prior to that time, had you ever been
3 over to look at that air conditioning unit?
4 A. I don't believe that we had, though we
5 did go over to take the pictures that I think have
6 been entered as evidence. I believe that that was
7 shortly after the early test firings. I'm trying
8 to get a sense, sir. You testified that after you
9 heard this loud noise, you were able to determine,
10 within a matter of roughly 10 minutes, that it was
11 the air conditioning unit that was the source of
12 this loud noise, isn't that right?
13 A. Yes.
14 Q. And, how were you able to determine,
15 within that short amount of time, that it was the
16 air conditioner that was emitting this, or which
17 had emitted this explosion like sound?
18 A. We went outside the house to outside of
19 our house and we could hear some of these booms,
20 if you will, intermingled with the commencement of
21 the running of the air conditioner.
22 Q. If I recall your testimony, you stated
23 that when you went out there, it wasn't making
24 quite the same noise as you had heard earlier?
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
941
1 A. Correct. The air conditioner had turned
2 on, but there were some subsequent loud noises.
3 It was as if the control of this system, after I
4 realized what it was, as if it were a bit out of
5 control, turning things on and off, on and off,
6 making some strange noises.
7 Q. Do you know for sure that it was the air
8 conditioner that made this explosion like sound?
9 A. We, after hearing that the air
10 conditioner was, in fact, operating, it was pretty
11 obvious then that the air conditioner was going
12 and the sound was coming from the same direction.
13 So, we assumed that it was the air conditioner.
14 Q. So, you were able to say one way or
15 another for sure whether you had ever looked at
16 that air conditioner previous to this event?
17 A. We had looked at it from a distance,
18 going by the driveway.
19 Q. You knew it was there?
20 A. Yes, and I must say when I first saw it,
21 I was very concerned.
22 Q. So, the first time you saw it, you
23 thought, I wonder how loud that thing is, is that
24 right?
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
942
1 A. Yes.
2 HEARING OFFICER: Say yes or no.
3 BY MR. CARSON:
4 Q. And then, when you heard this loud noise
5 on September 13th, you thought well, here it is,
6 they turned on the air conditioner?
7 A. Not when I first heard it, those bangs,
8 booms, explosions, whatever you call them, were
9 not the sound of an air conditioner. As it turns
10 out, they were the sounds of this air conditioner,
11 but I had never heard an air conditioner like that
12 before in my life.
13 Q. You and your wife went outside to look at
14 it, and you were able to determine that the noise
15 that had disturbed you was this air conditioner,
16 right?
17 A. As best we can determine, yes.
18 Q. Now, you sent this letter, which is
19 Exhibit 49, that states at the end of the second
20 paragraph, "it seems to us that the only viable
21 solution is relocation". Did I read that
22 correctly?
23 A. You did.
24 Q. And, at that time that you made that, had
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
943
1 you done any analysis of the available methods to
2 reduce the sound emission from this air
3 conditioner?
4 A. I did.
5 Q. You had done an analysis?
6 A. I had done some preliminary research.
7 Q. And, using your expertise as a HVAC
8 person or a sound emissions person?
9 A. I had done several things.
10 Q. Listen to my question.
11 A. Not relying on my expertise, no.
12 Q. And, did you do any analysis of what it
13 would cost to relocate the unit?
14 A. No, I didn't.
15 Q. You had already made up your mind at the
16 time you sent this letter that the only viable
17 solution would be relocation?
18 A. Based upon my research, yes.
19 Q. And, you have not waivered from that
20 position from the time you sent this letter
21 October of 1993, all way up to today, isn't that
22 right?
23 A. No, that's not right.
24 Q. Have you ever been satisfied that this
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
944
1 unit need not be relocated?
2 A. Yes, we have heard alternatives presented
3 by Mr. Zack of ways to control the sound right
4 where it is, those would satisfy us.
5 Q. So, you're not, at this point in time,
6 seeking to have this unit relocated.
7 A. All we want is for the noise to be
8 reduced to an acceptable level. How it's done is
9 up to Mr. Crown.
10 Q. At the time you wrote this letter in
11 October of 1993, had any of the approaches or
12 methods for sound attenuation been implemented?
13 A. I don't know, I don't think so.
14 Q. We know today that there are quite a
15 number of them that have been tried, isn't that
16 correct?
17 MR. KAISER: Objection to that
18 characterization, quite a number. There is a
19 specific number, quite suggests more than what's
20 actually done in this case.
21 HEARING OFFICER: Mr. Carson, can you
22 rephrase your question?
23 MR. CARSON: Sure.
24 BY MR. CARSON:
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
945
1 Q. We know that the time that you heard it
2 in September 13th of 1993, it was the first time
3 the unit had ever been operated, to your
4 knowledge, right?
5 A. Yes. And, it's been test fired.
6 Q. So, there may have been some fine tuning
7 or some steps taken to tighten up the operation of
8 this unit after the first operation, right?
9 A. Yes, yes.
10 MR. KAISER: Objection, calls for
11 speculation.
12 BY MR. CARSON:
13 Q. And since that time, shrubbery has been
14 planted around the unit, isn't that right?
15 A. Yes.
16 Q. Arbor vitae, how do you say it? Arbor
17 vitae trees have been planted around the unit, is
18 that right?
19 A. Yes.
20 Q. Can you describe what those trees look
21 like?
22 A. They're tall evergreens. There is a long
23 screen of them between our houses of some 20 feet
24 high, I suspect on average, and there is another
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
946
1 ring of them around the air conditioner.
2 Q. Okay. So, these trees are evergreen type
3 trees that don't lose their leaves?
4 A. Yes, they're also scattered around the
5 rest of the perimeter of the house. It's not just
6 around the air conditioner. There's also a
7 stockade fence. I don't recollect if my last
8 visit there, whether it's still there after the
9 enclosure was put up or not.
10 Q. There was a stockade fence. Would you
11 describe the stockade fence that you saw there?
12 A. Yes, there was a stockade fence of 6 feet
13 or so that was put around the unit in the spring
14 of 1994.
15 Q. And, there is also, isn't there a
16 stockade fence that separates your property from
17 the Crown property in addition to the stockade
18 fence that separates the unit?
19 A. There was one there before. And the
20 Crowns, with our permission, replaced it with a
21 new one.
22 Q. Is that stockade fence on Mr. Crown's
23 property or our property?
24 A. The original was on our property, I
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
947
1 believe it was our fence.
2 Q. So, he replaced your fence with your
3 permission at his expense, right?
4 A. Yes, though there was some debate with
5 Mr. Keller about that, but yes.
6 Q. The unit was also rotated 90 degrees?
7 MR. DIVER: I'll object to that. The
8 testimony in this matter, nobody can testify that
9 had anything to do with sound reductions at all,
10 and I'll object to any characterization that that
11 anything to do with sound from this unit.
12 MR. CARSON: We intend to prove it was
13 done for the purpose of reducing sound.
14 MR. DIVER: He's asking whether the unit
15 was rotated. Fine, if he's asking him to
16 stipulate because, that was rotated because of the
17 sound reduction effect, we object.
18 HEARING OFFICER: I believe the question
19 was limited. The objection is overruled. You can
20 answer the question.
21 A. I've been told it was rotated, I assume
22 that it was. I frankly don't know it was or not.
23 Q. And, you've been told that it was done
24 for the purpose of trying to achieve some
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
948
1 lessening of sound?
2 A. I've heard that said by Mr. Crown.
3 Q. And, you're aware, aren't you, that a
4 blanket like insulation was placed over the
5 compressors of the unit in an effort to try to
6 lessen the sound?
7 A. And later removed, I think, yes.
8 Q. And, did it get a lot worse after the
9 blankets were removed?
10 A. Never noticed the difference with any of
11 these things.
12 Q. And, are you aware that insulation was
13 placed on the inside of the panels?
14 A. Certainly didn't help the noise levels.
15 If they were, I don't know. I've been told --
16 HEARING OFFICER: Answer the question to
17 the best of your ability.
18 A. I don't know I've been told that
19 insulation was put there.
20 Q. And, are you aware that cones or baffles
21 were installed?
22 A. Yes, I did see those.
23 Q. And, that was in an effort to lessen the
24 sound as well?
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
949
1 A. That's what I've been told.
2 Q. And, the cones later were removed in an
3 effort to lessen the sound.
4 MR. KAISER: Objection, calls for
5 speculation as to the motivation.
6 HEARING OFFICER: Overruled. You can
7 answer to the best of your ability.
8 A. Yes. And, the removal of the cones that
9 had been put on for sound control helped.
10 BY MR. CARSON:
11 Q. And, you're aware that an acoustically
12 designed enclosure was constructed around this
13 unit?
14 A. Yes.
15 Q. And, are you aware that the operations
16 were adjusted in 1995, I believe you testified to
17 that this morning, that you became aware in 1995
18 that the operations of the unit were adjusted in
19 an effort to limit, or the time of the noise?
20 A. To limit the number of times it would
21 cycle on and off, yes.
22 Q. Yes.
23 MR. KAISER: Just a point of
24 clarification. I believe that that was 1996.
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
950
1 BY MR. CARSON:
2 Q. What was it, 1995 or 1996?
3 A. There was a change in 1995 just prior to
4 the Shiner readings. Then there's this further
5 change in 1996.
6 Q. Okay. And the last item on my list, and
7 I've forgotten some, is that the program controls
8 or the controls were reprogrammed in 1996 in the
9 manner described this morning to cut back on the
10 number of compressors, the number of fans working
11 at certain hours, right?
12 A. We're told that's being tested, yes.
13 Q. And you've, in fact, been told that's
14 been done, and you've heard it right.
15 A. On a test basis, it can't be guaranteed,
16 it will continue.
17 Q. By my count, the list that I just gave is
18 12. Now, I used earlier in a question quite a
19 number of approaches have been taken to lessening
20 the sound. And, when I say quite a number, I mean
21 12. Would you agree with my statement, sir?
22 MR. DIVER: Objection again to the
23 characterization that these were all for the
24 purpose of soundproofing, that these were done,
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
951
1 this witness can testify to that, these were done
2 to the purpose of soundproofing this witness can't
3 testify to. Mr. Crown can testify to that,
4 somebody from this side can certainly testify, but
5 this witness can't testify as to what motivated
6 them to do any of these 12 so-called soundproofing
7 alterations.
8 MR. CARSON: The whole tenure of this
9 witness' testimony has been that he kept
10 complaining and knowing what's being done. And,
11 this goes to his knowledge to what has been done,
12 and I'm just asking what he is aware of. He
13 doesn't have to tell me what he doesn't know
14 about.
15 HEARING OFFICER: Overruled, you can
16 attempt to answer the question, whether you knew
17 that there were 12.
18 A. I didn't count them all, but--
19 Q. Will you accept my arithmetic?
20 A. I'll accept it.
21 Q. I have them written down here as I was
22 reading them to you. Will you accept that?
23 HEARING OFFICER: Perhaps we can have the
24 repitition of the 12. I don't know that I counted
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
952
1 12.
2 MR. CARSON: Fine tuning of the unit
3 after the initial test firing, planting of
4 shrubbery, that's two. Planting of arbor vitae
5 trees, that's three. Installation of a stockade
6 fence surrounding the unit, that's 4. Insulation
7 of the fence on the property line, that's 5.
8 Rotating the unit 90 degrees, that's 6. Putting a
9 blanket like device over the compressors, that's
10 7. Installing the cones, that's 8. Putting the
11 insulation in the panels around the unit, that's
12 9. Installing the acoustic enclosure, that's 10.
13 Removing the cones, that's 11. Reprogramming the
14 controls, that's 12. Adjusting the operation in
15 1995, that would be 13. But, I suppose it's not
16 fair to count removing the cones and installing
17 the cones, maybe it's just one.
18 A. I'm not sure exactly what I'm supposed to
19 answer. I find it very difficult to answer yes or
20 no. I can say that this was the double counting
21 of the cones, the blankets have been removed, so I
22 don't think one should count that. The various
23 fine tunings, I would think, are the normal part
24 of operations. The trees were put all over the
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
953
1 yard, so I'm not sure you can count that. There
2 was already a fence there between our yard, so I'm
3 not sure you can count that. So, you come down to
4 a pretty limited number of things that you have
5 told us were done for sound control and yes, I
6 will acknowledge that you have told us that
7 limited number of things were done for sound
8 control.
9 Q. At the time that you wrote your letter in
10 which you had already made up your mind that the
11 only viable solution is relocation, had any of
12 those of yet been done?
13 A. I don't believe that they had.
14 Q. At the time you wrote this letter,
15 Exhibit 49, though, you knew that Mr. Crown and
16 his contractors were planning various steps to
17 reduce the noise, is that correct, sir?
18 A. At that time, we didn't know what they
19 were planning to do. They hadn't told us what
20 they were going to do.
21 Q. Did you tell Mr. Crown in the letter
22 which is Exhibit 49, we know that you plan various
23 steps to reduce the noise?
24 A. He had told me in general terms that they
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
954
1 were planning to do some things, but they didn't
2 know what things they were going to do.
3 Q. You knew that he planned various steps,
4 but you didn't precisely know what the steps were?
5 A. Correct.
6 Q. And, you went on to say in the same
7 letter we're likely to have a noise problem
8 regardless of what steps you take?
9 A. Yes.
10 Q. You had already made up your mind that
11 whatever he tried, it wasn't going to work?
12 A. I had been advised by people who know
13 more about air conditioning than either myself or
14 Mr. Crown that that was likley to be the case.
15 Q. So, and this person that you consulted,
16 is that somebody that has testified here in this
17 hearing?
18 A. No.
19 Q. According to your letter, Pete says that
20 your unit can be located anywhere around the
21 house. Did you discuss with Pete how long it
22 would take to relocate the unit to a new location?
23 A. No, we didn't talk about that.
24 Q. Did you talk to Pete about the impact on
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
955
1 the length of the project which, obviously, was a
2 long project, did you discuss with him what affect
3 you would have on the project's schedule if he
4 were to cause the unit to be relocated to another
5 place on the property?
6 A. I don't recall talking about the
7 schedule, no.
8 Q. Did you talk to Pete about how much it
9 would cost in dollars to relocate the unit to
10 another location at that point in time?
11 A. No, I didn't.
12 Q. I would ask you to describe for us, to
13 the best of your ability, word for word, to the
14 best of your ability, what Pete Keller told you
15 prior to October 11, 1993 concerning potential
16 relocation of the unit?
17 A. Susi, my wife, was with me when we went
18 over to the construction site shortly after the
19 initial turn on and after my first call to Steven.
20 Prior to that, I had talked with an architect and
21 with folks at one of the companies.
22 Q. Let me stop you there. I'd like you to
23 describe the conversation you had with Pete
24 Keller, please, in which the relocation was
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
956
1 discussed and as best you can, word for word,
2 without a lot of embellishment about your other
3 conversations with other people.
4 A. I told Pete that based on conversations
5 with other people, that relocation would be the
6 simplest solution to noise that was likely to be
7 generated by a unit of this size, particularly
8 since it was up against a stone wall, it probably
9 would reflect a lot. And, I asked him if that
10 could be done, and he emphasized that, you know,
11 construction is still very much open, a lot of
12 things are going on. This is a long way from
13 being completed. Could it be done at this time so
14 it would be good to do now rather than later on,
15 when it will be much more expensive. And, to the
16 best of my recollection and my wife's, Pete said
17 of course, the unit can be relocated. We could
18 put it at different points around the house.
19 Q. Did he also tell you that the house could
20 be moved?
21 A. No.
22 Q. That never happened?
23 A. I would remember something as light as
24 that because we were extremely concerned and
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
957
1 levity like that would have sent me through the
2 roof. He didn't say that, no.
3 Q. Mr. Shelton, you did have a problem with
4 construction noise on the Crown residence
5 renovation, right?
6 A. From time to time, it was quite noisy,
7 yes.
8 Q. And, I take it that this was a source of
9 complaint from your wife?
10 A. It was much more difficult for her since
11 the construction was during the day, and I was
12 typically gone while she was there.
13 Q. Did she complain to you about it quite a
14 bit?
15 A. I wouldn't say quite a bit, she did, on
16 several occasions after a particularly noisy
17 amount of work had been going on. There was no
18 screening put up between us.
19 Q. By the time the air conditioning unit was
20 turned on in September of 1993, the construction
21 had been going on for over a year, a year and a
22 half?
23 A. About a year.
24 Q. About a year -- I'm sorry, I know
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
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1 September of 1991, about 2 years.
2 A. About two years, yes, sir.
3 Q. And during the early stages of
4 construction, they were working on the if I can
5 call it the shell of the home, the outer walls and
6 involved a lot of heavy equipment?
7 A. Yes.
8 Q. And, that was a source of some
9 frustration to you and your family, is that right?
10 A. No more so than the rest of the
11 neighborhood, I don't believe at that point.
12 Q. You mentioned in the letter to Mr. Crown,
13 which is Exhibit 49, that the workmen were
14 arriving at work too early?
15 A. Yes.
16 Q. And, was the purpose of raising that was
17 to try to get him to work on taking steps to quiet
18 down over there?
19 A. The purpose was to ask if he could have
20 the workmen come at 7:00 o'clock, which was the
21 village code, rather than arriving at 6:00 in the
22 morning.
23 Q. Well, it was because you felt they were
24 too noisy, right?
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
959
1 A. Yes, 10 to 15 cars and trucks lined up to
2 get in at 6:00 and 6:30 in the morning was quite
3 noisy weapon it's 28 feet from your son's bedroom.
4 Q. So, they came in your side?
5 A. All the construction was centered on our
6 side, after the initial work was done.
7 Q. So, the trucks and cars that arrived for
8 the job would come on the side of the Crown house
9 which is toward your house?
10 A. Yes.
11 Q. You raised the issue of dealing with the
12 construction project and the strain on your family
13 in correspondence with the village, hadn't you?
14 A. I'd have to refresh myself on the
15 particular correspondence.
16 Q. Did you--
17 A. I may have.
18 Q. Did you write a letter dated June 8, 1994
19 to Doug Williams, Winnetka Village Manager in
20 which you told him that the project had been a
21 strain on your family and neighborhood?
22 A. I believe that I probably did, yes, this
23 is a letter I wrote to Mr. Williams.
24 MR. CARSON: I think we had four photos
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
960
1 that we had introduced through Mr. --
2 HEARING OFFICER: Yes, those are at the
3 back of the folder.
4 MR. ELLEDGE: So, the next number is 5?
5 HEARING OFFICER: Yes.
6 MR. DIVER: Respondent's 5 will be the--
7 MR. CARSON: June 28, 1994 letter to Mr.
8 D. Williams.
9 MR. CARSON: Doug Williams, right. Is it
10 okay with you if I substitute a non highlighted
11 version of this letter?
12 MR. DIVER: No, I think we'd proably
13 prefer it.
14 BY MR. CARSON:
15 Q. If you would kindly ignore the
16 highlighting on there and aside from the
17 highlighting on Respondent's Exhibit No. 5, is
18 that a true and correct copy that you sent to Doug
19 Williams on or about June 28th of 1994?
20 A. Yes, yes.
21 Q. And, who is Doug Williams?
22 A. Doug Williams is the Village Manager of
23 Winnetka.
24 MR. CARSON: I apologize, I thought this
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
961
1 was already marked. I couldn't find it.
2 HEARING OFFICER: Is there a motion for
3 its inroduction?
4 MR. CARSON: No, not yet. I simply
5 wanted to show it to you so you can make note of
6 it.
7 HEARING OFFICER: Thank you.
8 BY MR. CARSON:
9 Q. You told Mr. Williams that you had
10 considered moving, but your real estate broker
11 told you you couldn't sell the house until the air
12 conditioner problem was resolved?
13 A. That's correct.
14 Q. Did you consult with other real estate
15 brokers?
16 A. We talked with, I think, 3 firms when we
17 eventually did the appraisal by the realtors. We
18 also talked with at least one other broker
19 extensively about this. So, there were two
20 brokerage firms that we talked with extensively
21 about, as of this time.
22 Q. One of them was Kahn?
23 A. Kahn, yes.
24 Q. Kahn Realty?
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
962
1 A. Yes.
2 Q. And, who was the other?
3 A. The other was Wendy Cross as one of the
4 owners of, I'm at a loss for the name of her firm
5 in Winnetka. It's on Lincoln Avenue. I can't
6 think of it right now.
7 Q. Did you say there was also a third?
8 A. When we, it was actually subsequent to
9 that when we later had brokers come through in the
10 fall we, of course, had several other brokers.
11 Q. At this point in time that you
12 corresponded with Doug Williams, you told him you
13 considered moving, but your real state broker said
14 you can't sell the house until the air
15 conditioning problem is resolved at that time.
16 You weren't looking to formally list your house?
17 A. We couldn't.
18 Q. You couldn't because the air conditioning
19 problem hadn't been resolved, that was your
20 opinion?
21 A. Yes. And, at that point, Mr. Crown had
22 told us they were going to do no more.
23 Q. On June 28th of 1994?
24 A. Yes, between June 28 and June 30, we had
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
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1 two conversations. The gist of the first was that
2 they are essentially done, the clear indication in
3 the June 30th conversation is that they were going
4 to do no more. We have been accommodated all we
5 were going to be accommodated, I think was the
6 word.
7 Q. Is that what prompted the letter to the
8 Village?
9 A. What prompted the letter to the Village
10 is that it was becoming clear as time passed on
11 and the things that were being done were extremely
12 limited in their scope, that we were not going to
13 be able to resolve this between neighbors, and
14 that with we were being forced to turn to the
15 Village.
16 Q. What did you expect the Village to do
17 about it?
18 A. We hoped that they would either, by
19 application of their noise nuisance ordinance or
20 by some other methods of intercession, be able to
21 persuade the Crowns or force the Crowns to take
22 steps to reduce the noise.
23 Q. Now, within a matter of just a few days
24 or a week or so after this June 28th letter, there
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
964
1 were some sound measurements taken?
2 A. Yes.
3 Q. And shortly thereafter, Mr. Crown was
4 made aware of the sound measurements and some
5 investigation was done into the construction of an
6 enclosure around the unit?
7 A. Yes?
8 Q. In an effort to reduce the sound?
9 MR. DIVER: Object to the form of the
10 question. There are multiple statements that he's
11 being asked to attest to, including when Mr. Crown
12 learned about the results of the sound test.
13 HEARING OFFICER: Could you rephrase
14 your question?
15 MR. CARSON: I'll try to break it down
16 into components.
17 BY MR. CARSON:
18 Q. The, your letter to Mr. Williams was
19 dated June 28th?
20 A. Yes.
21 Q. And, it was within a matter of a week or
22 thereabouts that Mr. Shiner took his first set of
23 sound measurements, correct?
24 A. Yes.
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
965
1 Q. And, shortly thereafter, Mr. Crown was
2 made aware of the results of the sound
3 measurements, as far as you know, right?
4 A. I faxed him the results the same day.
5 Q. And, within a matter of a few days, Mr.
6 Crown, to your knowledge, met with experts to
7 discuss a plan for attenuation of the sound.
8 A. He met with the engineer we had hired to
9 do the readings.
10 Q. He met with Al Shiner?
11 A. Yes.
12 Q. And, as far as you know, he also met with
13 Brad Mautner, right, and Pete Keller to talk about
14 a way to resolve the problem?
15 A. You're asking only about sound experts,
16 and I certainly wouldn't put those gentlemen in
17 that category.
18 Q. Al Shiner is a sound expert, isn't he?
19 A. Yes.
20 Q. And, he's a good sound expert, isn't he?
21 A. Yes.
22 Q. He's the one you selected to try to solve
23 the problem.
24 MR. DIVER: Objection, he selected him
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
966
1 to measure the sound, that's the testimony, not to
2 solve the problem.
3 HEARING OFFICER: Sustained.
4 BY MR. CARSON:
5 Q. Did you hire Al Shiner to try to solve
6 the problem?
7 A. No, we hired Al Shiner to do sound
8 readings.
9 Q. And, you weren't interested in solving
10 the problem, you only wanted to know what the
11 readings were?
12 MR. DIVER: Object to the argumentative
13 natre of the question as to what he was or not
14 interested in.
15 MR. CARSON: To me, it defies common
16 sense that you didn't want Al Shiner to help solve
17 the problem. Is that your testimony?
18 HEARING OFFICER: Sustained.
19 BY MR. CARSON:
20 Q. Is it correct you hired Al Shiner to
21 conduct sound measurements from your property in
22 an effort to quantify the sound emissions from the
23 Crown air conditioning unit?
24 A. Yes.
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
967
1 Q. What, if any, other benefit did you hope
2 to gain from Mr. Shiner's measurement of that
3 sound?
4 A. The benefit and, at that time, the only
5 benefit we'd hoped to gain was to be able to
6 demonstrate to Mr. Crown that these were not crazy
7 neighbors complaining, that there was a basis in
8 fact of an egregious violation, and that he should
9 act on it. That was the only benefit we expected
10 from hiring Mr. Shiner.
11 Q. Okay. And, at that time, you had in mind
12 demonstrating for Mr. Crown that there was an
13 egregious violation of what?
14 A. Of the Illinois Numeric Noise Standards.
15 Q. Did you later learn that Illinois Numeric
16 Noise Standards are not applicable?
17 MR. DIVER: Objection.
18 MR. KAISER: Objection, calls for a legal
19 conclusion.
20 HEARING OFFICER: Sustained.
21 MR. CARSON: Fine, your Honor. The
22 Petitioner has been permitted to adduce all sorts
23 of evidence for the purpose of notice and state of
24 mind. And, in this instance, the purpose of the
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
968
1 question is not for the purpose of establishing
2 the legal standard, but whether what Mr. Shelton's
3 understanding was.
4 MR. DIVER: Same objection.
5 HEARING OFFICER: Would you read back
6 the question?
7 (WHEREUPON, the record was read by
8 the Court Reporter.)
9 HEARING OFFICER: The objection is
10 sustained. The question will have to be rephrased
11 so as not to elicit a legal opinion in the
12 hearing.
13 BY MR. CARSON:
14 Q. If you would please take a look at
15 Exhibit Number 48.
16 MR. KAISER: Could we have that
17 identified for the record, please?
18 MR. CARSON: Exhibit Number 48 is
19 evidence as --
20 HEARING OFFICER: It's the letter from
21 D. Shelton to S. Crown dated 6-30-94, and it has
22 been admitted into evidence.
23 MR. KAISER: Thank you.
24 A. Yes, I recognize this letter.
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
969
1 MR. CARSON:
2 Q. And, this is the letter you sent to Mr.
3 and Ms. Crown on or about June 30th, 1994?
4 A. Yes.
5 Q. And, if I recall your testimony this
6 morning, you sent this letter by certified mail
7 because Greg Zack suggested that?
8 A. Yes.
9 Q. Were you preparing for litigation at that
10 point?
11 A. I wasn't preparing for litigation at that
12 point. We had not engaged counsel and to the
13 contrary, I was hoping, if at all possible, to
14 avoid litigation. However, it had become clear
15 from my conversations with Steven, we were moving
16 into a more combative state with either the EPA or
17 the Village.
18 Q. You had Mr. Zack's advice as to how to
19 establish a record that might be useful in a
20 proceeding like this, right?
21 A. How to commence a record, yes.
22 Q. Now, in your opening sentence in Exhibit
23 48, you told be Nancy and Steven, we have had
24 conversations about how to resolve the noise
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
970
1 problem. That was true at the time you said it,
2 wasn't it?
3 A. Yes, it was.
4 Q. So, it's not, it wasn't a problem that
5 they were being uncommunicative?
6 A. Up until that point, we had a number of
7 times, yes.
8 Q. And, up to that point in time, you were
9 aware of both the planned and the ultimate
10 installation of fences, trees, and baffling,
11 right?
12 A. At this point, we had heard the evidence
13 of their installation and seen that they had
14 little, if any, effect.
15 Q. Of course, you knew that they would have
16 little, if any, effect back in October of 1993?
17 MR. DIVER: Objection to the
18 argumentative nature of the question.
19 HEARING OFFICER: Could you rephrase your
20 question?
21 BY MR. CARSON:
22 Q. You were of the opinion that these sound
23 attenuation methods would be ineffective, even
24 before they were installed?
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
971
1 A. The various experts we had talked to
2 predicted that, and it appears that they were
3 correct.
4 Q. You presented Mr. and Ms. Crown with an
5 ultimatium, we need your response within 15 days
6 of this letter. What was the significance of 15
7 days from the date of this letter?
8 A. There were two reasons for the specific
9 date. One is that we needed something done
10 quickly because my family was going crazy. We
11 couldn't get away from this sound. The second
12 thing is that Steven, the night before, had drawn
13 the line in sand and said they weren't doing any
14 more, and we could do whatever we had to do. And,
15 then, they left for 4th of July weekend to go to
16 Colorado. We felt that we had to have a fairly
17 tight timeframe in order to get any kind of a
18 response.
19 Q. This conversation that you just alluded
20 to was that at the swim meet?
21 A. No, that was earlier. This was a phone
22 conversation on, I believe, 29th of June. On the
23 evening of the 29th of June.
24 Q. Did you make Mr. Crown aware that a sound
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
972
1 engineer was coming out to take measurements?
2 A. At the time we talked, I didn't know that
3 one was. It was only on the morning of June 30th
4 that, in our desperation, we started doing a lot
5 of things at once. We visited the police, we
6 talked to the village council members, we
7 commenced the petition, we got on the agenda for
8 the village council meeting, and we arranged for
9 the sound engineer. And, if memory serves me, we
10 may not have been able to reach him until the day
11 he took the readings, and he happened to have some
12 time availble that morning, the 5th.
13 MR. CARSON: Respondent's Exhibit 6 is
14 dated July 1, 1994. It's a handwritten note from
15 David Shelton addressed to Steven.
16 HEARING OFFICER: Thank you.
17 BY MR. CARSON:
18 Q. Respondent's Exhibit No. 6, is that a
19 note in your handwriting?
20 A. It is.
21 Q. And, did you transmit this note somehow
22 to Steve Crown?
23 A. I don't specifically recall when I wrote
24 this. It's clearly in my handwriting. It looks
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
973
1 like it might have been the cover for something
2 else, but I'm not sure what else.
3 Q. As you sit here today, you don't remember
4 writing this note?
5 A. I don't specifically remember writing the
6 note, but it's my handwriting.
7 Q. You testified that around June 30th, this
8 was evidently written July 1, you were going to
9 the police, you were going to the village, and you
10 were going to track down the sound engineer?
11 A. I believe that happened on Tuesday, yes.
12 Q. If you know.
13 A. I believe it was Friday, the 4th was a
14 Monday.
15 Q. Okay. And the measurements were actually
16 taken on the following Tuesday?
17 A. Yes.
18 Q. You stated you were going in several
19 directions in this note, is that a reference to
20 going to the village, going to the police, trying
21 to locate a sound engineer?
22 A. Yes, it is a reference to all of those
23 things. I'm sure that that's the case. I just
24 don't recall specifically why I sent Steven or
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
974
1 what might have accompanied it, that's the only
2 thing I'm at a loss for. But, that's clearly what
3 it was referring to because those are the things
4 that were going on that weekend.
5 Q. Do you recall why it would be either you
6 would not tell Steve Crown in one of these
7 communications that you're retaining a sound
8 engineer to conduct readings?
9 A. We had, when we arranged for the engineer
10 on Tuesday, and I believe we didn't arrange for
11 him until Tuesday morning, I did let him know via
12 fax. We also left a message at both his home and
13 office that we were planning to go to the Village
14 council that night and we had gotten engineering
15 readings. He was gone, however. In fact, he
16 made --
17 Q. That night being what night?
18 A. I believe that they, Steven would know
19 his schedule better than I, but I believe they
20 left on Thursday or Friday, the 4th of July
21 weekend, and probably didn't return until mid week
22 the following week. We have tried to be very
23 careful about communicating every step of the way
24 here, and have tried to avoid doing things without
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
975
1 letting the Crown folks know what we're doing.
2 Q. Mr. Shelton, did you, in fact, contact
3 the Winnetka Police Department at the end of June?
4 A. Yes, we did.
5 Q. Concerning the air conditioner noise?
6 A. Yes, the night of the 29th, as I recall.
7 Q. And, did the Winnetka Police inform you
8 that there was some violation of the law involved
9 here?
10 MR. DIVER: Objection to the extent that
11 he's trying to introduce by hearsay testimony a
12 statement of legal opinion with respect to whether
13 it was or was not a violation of the law.
14 MR. CARSON: Again, it goes to what this
15 witness' state of mind was.
16 MR. DIVER: It's not being introduced for
17 establishing the truth of anything the officer
18 said. I withdraw my objection.
19 HEARING OFFICER: I'll permit the
20 witness to answer the question. So, the objection
21 is either withdrawn or overruled.
22 MR. DIVER: All right, make it overruled.
23 A. We had sometime earlier approached the
24 Village about whether there were code controls
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
976
1 over there, sort of thing or not, and --
2 HEARING OFFICER: Mr. Shelton, could you
3 just answer the question specifically?
4 A. Could we have the reading of the question
5 back?
6 MR. CARSON: Rather than read it back,
7 I'll rephrase it.
8 HEARING OFFICER: All right. We'll have
9 the question rephrased.
10 BY MR. CARSON:
11 Q. On the basis of your consultation with
12 the Winnetka Police, did you form a belief as to
13 whether there was a violation of the law involved
14 here?
15 MR. DIVER: Which law, Winnetka law,
16 Illinois law, federal law, Winnetka law, are we
17 talking about --
18 MR. CARSON: Whatever law he discussed
19 with the police, violation of the law.
20 HEARING OFFICER: I'll permit the
21 witness to answer the question.
22 A. They indicated that we might be able to
23 prosecute forward on the basis of a public noise
24 nuisance, that the code covered that. However, it
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
977
1 would most likely be kicked to a circuit court
2 where the judge would say that this is an EPA or
3 Pollution Control Board kind of issue. And, one
4 of the officers at the meeting suggested that we
5 contact the EPA. That if we wanted to go forward
6 with filing a noise nuisance complaint, we could,
7 but that it would end up being a lot of busy work.
8 Q. I take it based on your answer, then,
9 that the Winnetka Police didn't view it as a
10 matter appropriate for the Winnetka Police?
11 MR. KAISER: Objection.
12 MR. DIVER: Objection,
13 mischaracterization of testimony. The testimony
14 is what it is.
15 HEARING OFFICER: Could you phrase it as
16 a question?
17 BY MR. CARSON:
18 Q. Did the Winnetka police respond to it as
19 a police matter?
20 A. The Winnetka Police said that they could
21 respond to it as a police matter, but that it was
22 unlikely to render a permanent solution. They
23 suggested the EPA and going back to the village.
24 Q. And, when they told you that they could
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
978
1 respond to it as a police matter, but it would not
2 likely result in a permanent solution, did you
3 think that that meant that they would go to Mr.
4 Crown's house and place him under arrest? I'm
5 trying to get an understanding of what you thought
6 the police could do about it, or should do about
7 it on the basis of your discussions with them, and
8 and is the answer nothing?
9 A. Prior to the meeting, we thought that the
10 public noise nuisance ordinance was absolutely
11 clear and that the police would be able to come
12 over and cause the Crowns to stop operating their
13 unit. We subsequently, as we talked with the
14 police, found that there's a gray area as to
15 what's a public nuisance as opposed to a private
16 nuisance, and that it wasn't clear that enough
17 people were being affected here to make it a
18 public nuisance, and that's the only way that the
19 village can get involved.
20 Q. I thought you testified this morning that
21 the Winnetka Police said go see the Village of
22 Winnetka, and the Village of Winnetka said see the
23 police, and you were getting that kind of a
24 bureaucratic runaround, is that an accurate way
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
979
1 of starting it?
2 A. Yes, we had earlier approached the
3 village and they said go see the police if there's
4 a problem, and that's when we went to see the
5 police on the 30th, said go see the village and
6 the EPA.
7 Q. So, it's a matter of enforcement of any
8 law or village code, neither of those, the village
9 or the police, took responsibility for taking
10 enforcement action, is that correct?
11 A. As of that time, that's correct.
12 MR. DIVER: Madam Hearing Officer, I
13 wonder if we might ask for a brief recess at this
14 point, we understand. Mr. Shelton's been on the
15 stand for about two hours now. We just have kind
16 of an energy grabing break, nothing too long, 5
17 minutes.
18 HEARING OFFICER: I think we can take our
19 afternoon break at this time. All right. Let's
20 take 5 minutes.
21 (WHEREUPON, a brief recess was
22 taken.)
23 AFTER RECESS
24 MR. CARSON: If you would, Mr. Shelton,
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
980
1 please take an look at Exhibit Number 17, which is
2 a July 6th, 1994 letter to Mr. Crown from you.
3 A. Yes.
4 Q. This letter was written after you
5 received Al Shiner's sound measurements, is that
6 right?
7 A. Yes.
8 Q. And, were the sound measurements
9 transmitted to Mr. Crown with this letter?
10 A. No, I faxed the sound measurements the
11 afternoon of the 5th when I received them.
12 Q. Okay, the preceeding day?
13 A. Yes.
14 Q. And, it appears that already within a one
15 day's time, that Mid/Res could or Mid/Res, that's
16 the same company, right?
17 A. Yes.
18 Q. That Mid/Res could, had asked for Mr.
19 Shiner's assistance in working on this issue?
20 A. Yes.
21 Q. And, how was that communicated to you?
22 A. Mr. Shiner called to ask if it would be
23 acceptable to me for him to be engaged by Mid/Res,
24 the Crowns to help find a solution for the
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
981
1 problem, and I told him that my concerns about
2 conflict of interest notwithstanding, our interest
3 was in finding a solution, and it was acceptable
4 with us for him to work with Mid/Res and the
5 Crowns.
6 Q. So, at that point, you consented to Mr.
7 Shiner assisting in finding a solution?
8 A. Yes.
9 Q. And, you stated in this letter that you
10 gave that permission because Mr. Shiner is good
11 and can probably help resolve the problem, is that
12 way you felt about it at that time?
13 A. Yes.
14 Q. It also says in this letter that you had
15 intended to press the Village for action at last
16 Tuesday's council meeting. What action did you
17 intend to press village for?
18 A. We were asking the Village to either
19 take -- strike that -- we contemplated asking the
20 village to help by either taking action under the
21 existing noise nuisance ordinance or by adopting a
22 new ordinance that would prevent this sort of
23 noise from being created in the village.
24 Q. The existing noise pollution ordinance
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
982
1 that you were referring to, which ordinance is
2 that?
3 A. There was a, in the general list of
4 ordinances, there's a, there was a public noise
5 nuisance ordinance.
6 Q. For the Village of Winnetka?
7 A. For the Village of Winnetka, yes.
8 Q. Did you ever pursue a complaint with the
9 Village of Winnetka utilizing that ordinance?
10 A. Yes, we did.
11 Q. And, has that been resolved in some
12 fashion?
13 A. We filed that complaint, I say we, Bob
14 Julian and I filed that complaint September of
15 1994. We then withdrew the complaint when we, on
16 the day that we filed it, received plans for an
17 enclosure.
18 Q. That was when Mr. Crown provided you with
19 the plans for the acoustical enclosure which was
20 constructed the following spring?
21 A. I thought it was January, but yes.
22 Q. You thought it was constructed in
23 January?
24 A. That's when we withdrew the complaint
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
983
1 when we received the plans.
2 Q. On this letter, however, Exhibit 17, it
3 says that you intended to press the village for
4 action. However, after talking with Bill Devers,
5 we did not do this. Who is Bill Devers?
6 A. Bill Devers was a neighbor of ours on
7 Ardsley, and also a friend of the Crown family.
8 Q. And, you had a conversation with Bill
9 Devers concerning this air conditioning noise
10 issue?
11 A. Yes. I testified this morning --
12 Q. Tell me when that conversation took
13 place, please?
14 A. It was prior to the 4th of July. I don't
15 recall the exact date. I do believe that there's
16 a letter that has been entered into evidence from
17 Mr. Devers that might indicate the date, but it
18 was sometime. The initial conversation was
19 sometime prior to the 4th of July.
20 Q. According to this letter, Exhibit 17, you
21 had intended to press the village for action at
22 last Tuesday's council meeting. However, after
23 talking with Bill Devers we did not do this. So,
24 would that refresh your memory that the
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
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1 conversation with Bill Devers was sometime around
2 the end of June?
3 A. There was --
4 Q. Early July time frame.
5 A. There was a conversation on July 5th, I'm
6 sorry, I thought you were talking about the
7 initial conversation which was prior to the 5th
8 when he offered to be a mediator or peacemaker
9 here, if you will. He talked with Steven, as I
10 understood it, in Colorado on the 4th and called
11 me on the 5th to tell me his conversation with
12 Steven.
13 Q. I see. In your first conversation with
14 Mr. Devers, and that was approximately when?
15 A. Again I'm not sure the date, it was
16 sometime around the 30th or the 1st, most likely
17 one of those two days.
18 Q. In that conversation, did you tell Bill
19 Devers of any of the sound attenuation efforts
20 that had been attempted up to that time?
21 A. No, but he listened to the noise.
22 Q. You didn't tell him about Mr. Crown's
23 efforts to lessen the noise up to that time?
24 A. I told him that Mr. Crown had said he was
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
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1 going to do no more.
2 Q. Okay. Maybe it's the way that I'm asking
3 the question that's causing you not to be able to
4 answer.
5 A. I didn't specifically tell him about the
6 landscaping or the fences, turning the unit
7 around, if that's what you're asking.
8 Q. Okay. You didn't think that those things
9 were relevant, is that the reason that you didn't
10 tell him?
11 A. I thought that the relevant thing was the
12 noise that was being created as of that time?
13 Q. After, to your understanding, then, Mr.
14 Devers had an opportunity to talk to Mr. Crown,
15 and then he called you back. And, as a result of
16 something Mr. Devers told you, you withdrew your
17 plans to press the village for action?
18 A. I pulled back on what we planned to talk
19 with the village about for two reasons. One was
20 the call from Mr. Devers. The second was that we
21 had, as of that date, gotten the sound readings
22 and I did not want to go public with the village
23 on this matter without telling Steven the
24 readings. So, I wanted to wait until he knew
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
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1 about the readings before I asked the, formally
2 asked the village for help. So, it's for those
3 two reasons. By the way, what Mr. Devers told me
4 was that he had talked with Steven and that if we
5 proceeded to take this thing public, that they
6 would do no more.
7 MR. CARSON: Move to strike the last
8 portion as non-responsive to any question.
9 HEARING OFFICER: Is there a response to
10 the motion?
11 MR. KAISER: The objection was, I'm
12 sorry, non-responsive? I'm sorry, I didn't--
13 HEARING OFFICER: There was a motion to
14 strike the last portion of the testimony given by
15 the witness as non-responsive to the question. Is
16 there a response to that motion? All right. The
17 motion is granted. That portion of the testimony
18 is stricken.
19 Q. You learned that Mid/Res had asked the
20 acoustical engineer to consult with them on this
21 air conditioner noise, right?
22 A. Yes.
23 Q. And that I take it was a step forward
24 from where you had been?
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
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1 A. Yes.
2 Q. Who did you talk to first, Bill Devers or
3 Al Shiner?
4 MR. DIVER: If I might help, Exhibit
5 Number 14 might be of assistance to both counsel
6 and the witness. That's a letter from Mr. Devers
7 to Mr. Crown dated July 1, 1994.
8 MR. CARSON: I'm not talking about that,
9 that pertains to the first conversation with Mr.
10 Devers. You had a second conversation with Mr.
11 Devers that you already said occurred on July 5th?
12 A. Yes. I got the results of the Shiner
13 readings, if memory serves me, late in the
14 morning. I got the actual hard copy faxed to me
15 in the afternoon. I talked with Mr. Devers late
16 in the afternoon on Tuesday the 5th.
17 Q. When was it that Mr. Shiner informed you
18 that Mid/Res had asked him to consult with them on
19 resolving the air conditioner problem?
20 A. That was the following day, the 6th that
21 he called me?
22 Q. So, if I understand the chronology, you
23 learned from Mr. Devers that if you go public --
24 I'm going withdraw that, that testimony is
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
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1 striken. I'll withdraw that.
2 This is Exhibit 34, Exhibit 34 is the
3 letter from Al Shiner with the drawing attached.
4 The letter dated July 12, 1994?
5 A. Yes, I received this.
6 Q. You received this from Al Shiner on or
7 about July 12, 1994?
8 A. Yes.
9 Q. And, at that time, you were aware that a
10 plan was in the works for construction of some
11 sore of enclosure around the air conditioner,
12 right?
13 A. I thought this enclosure--yes.
14 Q. And, did you respond to Mr. Shiner with
15 your critique of his proposed enclosure?
16 A. I'm not sure what you mean by critique.
17 Q. Showing counsel Exhibit 47 dated July 21,
18 1994.
19 MR. DIVER: This is from David Shelton to
20 Al Shiner, c.c. Steven Crown and Gregory Zack.
21 HEARING OFFICER: Okay, thank you.
22 A. Yes, I responded with this letter. I
23 don't know that I would characterize it as a
24 critique, but this is a letter I wrote.
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
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1 Q. You requested it, didn't you, you
2 questioned his plans?
3 A. I only asked if there had been any sound
4 reduction calculations made, and that was the
5 suggestion of Greg Zack that I ask that question.
6 I also sent copies of Trane information I had
7 received between the time of the readings on July
8 5th and the date of this letter.
9 Q. Were you already concerned that this
10 enclosure was not likely to be effective?
11 A. I was hoping very much that it would be
12 effective. Greg Zack suggested that I ask about
13 the reduction calculations, and had also advised
14 that noise problems like this with units of this
15 size are very complicated to eliminate and--
16 Q. Did you still have a preference as of
17 July, 1994 that the unit be relocated?
18 A. No. All we wanted to do was get the
19 noise reduced.
20 Q. In the last paragraph on the first page
21 of Exhibit 47, you expressed concern that there
22 should be an adequate margin of safety below
23 Illinois' Numeric Standards. What were you
24 referring to?
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1 A. I was referring to the Illinois Numeric
2 Noise levels.
3 Q. What about the margin of safety, what's
4 that in reference to?
5 A. I was thinking about the fact that the
6 design should be such that there's some margin for
7 error in it.
8 Q. So, if the enclosure was designed in a
9 manner intended to achieve meeting the IEPA
10 nighttime standards, would that satisfy you or did
11 you want it lower?
12 A. If it would meet the standards, that
13 would certainly be acceptable to us. I was simply
14 concerned that in the course of designing, if it
15 were designed to exactly meet the standards, it
16 was a very good chance that it wouldn't, and so
17 that the prudent thing to do wuold be to allow a
18 margin of safety, that's all I had in mind.
19 Q. Is it your belief that in designing a
20 sound attenuation device, it's appropriate, under
21 these circumstances, to shoot for a level below
22 those standards?
23 A. I'm not a sound expert, but as a --
24 Q. That was what you were suggesting in this
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1 letter, not that you were a sound expert, but that
2 it would be appropriate to shoot for a level below
3 the IEPA nighttime standards?
4 A. I would think a reasonable person would
5 think that they should have a bit of margin of
6 error in their design that would be, as a
7 businessman, I would certainly expect that kind of
8 margin of error.
9 Q. And, you also expressed the concern
10 again, reading from Exhibit 47, that an inadequate
11 solution would simply extend the stress that your
12 family family is now living with and would cause
13 the Crowns to spend money wastefully. In making
14 that statement, was it your intent to express the
15 concern that why construct an enclosure unless
16 you're sure it's going to work?
17 A. Could you repeat the question?
18 Q. Was it your intent to express the view
19 that one should not construct the enclosure
20 without having certainty that it would work?
21 A. To the degree possible, if one is going
22 to try to put a solution in place, they should do
23 their best to make sure that it will work.
24 Q. So, you wouldn't find fault with somebody
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1 for being careful and deliberate in their process
2 of selecting a sound attenuation enclosure?
3 MR. DIVER: We're talking about
4 carefulness and deliberateness or tardiness?
5 MR. CARSON: Your Honor, I would ask that
6 comments like that, that counsel be instructed to
7 refrain from comments like that. It's totally
8 inappropriate. He's directing his comments to
9 me..
10 HEARING OFFICER: Let's have a motion or
11 else no comments or a motion or objection or no
12 comments.
13 MR. DIVER: My objection is to the
14 ambiguity of the question, asking for carefulness
15 and deliberateness as opposed to what that
16 particularly means to this witness.
17 HEARING OFFICER: Overruled. You can
18 answer the question.
19 BY MR. CARSON:
20 Q. Mr. Shelton, you wouldn't fault someone
21 for being careful or deliberate in their selection
22 of a sound enclosure, would you?
23 HEARING OFFICER: The question asks for a
24 yes or no answer.
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1 A. I find it difficult to answer just yes or
2 no, but no, I guess if I have to say one word,
3 Madam.
4 Q. Why did you see Mr. Zack a copy of the
5 July 21, 1994 letter, Exhibit 47?
6 A. My experience with this situation to date
7 had been that progress was painfully slow and the
8 results frequently weren't what had been told me
9 were going to be. I felt that it was important to
10 keep some momentum going to keep the EPA involved,
11 that's why I sent the copy to the EPA. I didn't
12 trust that what had been represented to me in Mr.
13 Shiner's letter was, in fact, going to be carried
14 forward.
15 Q. You knew at that time that Mr. Crown and
16 his consultants were working on a sound enclosure?
17 A. Only communication I had received was the
18 one letter from Mr. Shiner in.
19 Q. My question, sir, is you knew as of July
20 21 that Mr. Crown and his consultants were working
21 on a sound enclosure?
22 A. Yes, and I simply provided some
23 additional information and copied the EPA.
24 Q. I'm going to show you, and I've shown
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
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1 counsel, and I'm now showing the Hearing Officer
2 Exhibit 45. This is a letter that you prepared
3 and you and Bob Julian signed, right?
4 A. Yes.
5 Q. And, this was in September of 1994. And,
6 at this time, you also were aware that a sound
7 enclosure was in the works, right?
8 A. I was not sure, at that time, that there
9 was one in the works.
10 Q. At that time, you thought that it might,
11 the plan might have been abandoned?
12 A. Yes.
13 Q. Did you call Al Shiner and ask him?
14 A. Yes, several times.
15 Q. And did Al Shiner tell you the plan had
16 been abandoned?
17 A. He told me he didn't know, that he had
18 been expecting specs and hadn't received them. I
19 called roughly weekly starting the end of July
20 through early September, and he was increasingly
21 exasperated that he hadn't gotten any feedback, he
22 had no idea where the specs were.
23 Q. You sent this letter to Steve Crown,
24 copying Doug Williams with the Village of Winnetka
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1 and the Winnetka Village Council and Gregory Zack
2 with the Illinois EPA, is that right?
3 A. Yes.
4 Q. And, why did you copy all those people
5 with this letter?
6 A. I've already explained why I kept the EPA
7 informed. The reason I kept the Village informed
8 is that we had dropped our momentum with our
9 effort to get the Village to help. Based upon
10 what we thought was a commitment on the part of
11 the Crowns to get this thing resolved. By the
12 middle of September, with little or no evidence
13 that they were going forward, other than the quick
14 letter from Mr. Shiner, we had lost faith that
15 they were, in fact, moving forward and decided
16 that we had to reinitiate our efforts with the
17 village.
18 Q. Was your concern over getting the sound
19 reduced or was it over being informed at every
20 step of way?
21 A There were two things going on here. The
22 first, that we thought that it was terribly
23 important, under the circumstances, that there be
24 some activity shown, and that we be made aware of
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
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1 it. We thought that was the right thing to have
2 happen, and we weren't. The only direct
3 communication we had from Mr. Crown was a
4 conversation, a not very cordial one, he had with
5 my wife in late July in which he told her that
6 construction will begin at or around Labor Day,
7 and that time came and went, nothing had still
8 happened, and we had gotten no more
9 communications. So, we had no reason to have
10 confidence that anything was happening. And,
11 under the exigencies of a hot summer, we thought
12 that that was unacceptable. The second thing that
13 was going on is this thing was devastating my
14 family. There was no one living in that house,
15 and yet the air conditioner was running 24 hours a
16 day. And, we had to continue to communicate to
17 them that they had to stop doing this to my
18 family.
19 HEARING OFFICER: Can we go off the
20 record for a moment to discuss exhibits?
21 (Off the record)
22 AFTER RECESS
23 MR. CARSON: We've agreed that it's okay
24 to use this one, even though there is a clean copy
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
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1 someplace, we just can't get our hands on it right
2 now.
3 HEARING OFFICER: Okay. All right.
4 Just ignore that because we know we have the other
5 in the record, so we don't have to talk about
6 that.
7 MR. DIVER: What's the date on that,
8 counsel?
9 MR. CARSON: September 15, 1994. This
10 is Exhibit No. 20.
11 BY MR. CARSON:
12 Q. Mr. Shelton, is this a letter you
13 received from Steve Crown?
14 A. Yes, I received it the 23rd or 24th.
15 Q. This is the letter you said was
16 postmarked after September 15th?
17 A. Yes, some 6 days.
18 Q. Do you know, since you looked so closely
19 at the postmark, did you see where it was
20 postmarked from?
21 A. I don't recall.
22 Q. If it was someplace far away, would you
23 remember that? Would it refresh your recollection
24 if I told you it was mailed from Honolulu?
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998
1 A. I think the postmark date's the issue, not
2 how long the mail took to get here. The postmark
3 versus the letter date, it was a 6 day gap.
4 MR. KAISER: Is that an offer of proof,
5 counsel, that was postmarked from Honolulu,
6 Hawaii.
7 MR. CARSON: No, it's not an offer of
8 proof. I'm asking to refresh his recollection.
9 Does it refresh your recollection?
10 A. I don't recall where it was postmarked
11 from. I just recall the date because I noted it
12 on my letter.
13 Q. You did receive with -- strike that --
14 upon receipt of this letter, you knew that in fact
15 the design for the acoustical enclosure was
16 complete?
17 A. With the receipt of this letter and the
18 accompanied plans, we understood that there were
19 now plans, no construction, but plans.
20 Q. You had in your September 14th letter,
21 Exhibit 45, set a deadline for response, is that
22 right?
23 A. Yes.
24 Q. And you wanted, you essentially were
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999
1 telling Steve Crown on September 14th that unless
2 you received specific plans by September 23rd, you
3 would ask the Village to take necessary steps to
4 remedy the situation, right?
5 A. Yes.
6 Q. And, I take it then that you did not take
7 steps with the Village of Winnetka at that time?
8 A. No, on the contrary. We, in fact, did
9 take the action of filing a letter of complaint
10 with the Village as of the 23rd. We had not yet
11 received Mr. Crown's letter at that time.
12 Q. Upon receipt of Mr. Crown's letter,
13 Exhibit 20, you withdrew the complaint?
14 A. Yes.
15 Q. Now, showing you what has been marked
16 Exhibit 48 A and B and received into evidence.
17 HEARING OFFICER: Do you mean 43 A and
18 B?
19 Q. Excuse me, 43 A and 43 B.
20 A. Yes, I sent these letters.
21 Q. The first is a letter dated September 27,
22 1994 to Doug Williams, Village Manager, Village of
23 Winnetka. In that letter, you advised Mr.
24 Williams that you're withdrawing the complaint,
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
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1 correct?
2 A. Yes.
3 Q. And, you suggested there's a chance at
4 making progress between neighbors, right?
5 A. Yes.
6 Q. However, you questioned the effectiveness
7 of the, or you suggested that there are questions
8 about the effectiveness of the proposed enclosure.
9 Did someone tell you that the proposed enclosure
10 might not be effective?
11 A. Yes, Mr. Zack did express some
12 reservations.
13 Q. Okay. So, you received it on September
14 23rd and you obtained Mr. Zack's review of the
15 plans by September 27th when you sent this letter?
16 A. Mr. Zack had reviewed the original
17 proposal described by Al Shiner, and I described
18 the kind of enclosure we were talking about here,
19 and he had expressed some reservations. In
20 addition to that, my experience on this at this
21 time with the extreme slow timetable I think it's
22 fair to say reluctance on making any progress in
23 this matter, made me very concerned that progress,
24 in fact, wouldn't be complete.
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
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1 Q. I'm referring specifically to the portion
2 of your letter that refers to questions about the
3 effectiveness of the proposed enclosure. Now,
4 what questions had been raised to you and by whom
5 about the effectiveness of the enclosure which was
6 shown on the plans that accompanied Exhibit 20?
7 A. The questions have been primarily based
8 uon the enclosure that was shown to us and in Al
9 Shiner's letter in July, July 12th, I believe it
10 was.
11 Q. Did you understand when you received the
12 plans with Exhibit 20 that the enclosure was not
13 gvoing to be exactly as had been drawn by Pete
14 Keller in the preceding July?
15 MR. KAISER: Objection, I believe that
16 misstates the testimony. It wasn't drawn up --
17 wasn't it drawn by Al Shiner?
18 MR. CARSON: I believe the testimony was
19 that it was drawn up by Pete Keller.
20 MR. KAISER: I apologize.
21 HEARING OFFICER: You can answer the
22 question.
23 A. Could you repeat the question?
24 HEARING OFFICER: I'll have the question
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
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1 read back.
2 (WHEREUPON, the record was read.)
3 A. Yes, I observe that that was the case.
4 Q. You observed that the plans --
5 A. When I got the plans.
6 Q. -- that the plans had changed?
7 A. Yes. For example, there was a top shown
8 on the plans.
9 Q. Had you obtained comments from Greg Zack
10 or any other expert about the proposed enclosure
11 that we saw in September by the time you wrote to
12 Doug Williams telling him that you had questions
13 about the effectiveness of the proposed enclosure?
14 A. I had not, at that time, had a chance to
15 send him a copy of the full plans, I don't
16 believe. I might have done it simultaneous with
17 this. I don't believe that I had had a chance to
18 look the detailed plans, though. I generally
19 described the nature of the structure.
20 Q. Is this another situation when you had
21 already decided that it wouldn't work, even before
22 it was implemented?
23 MR. DIVER: Object to the
24 characterization of this witness' testimony
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1003
1 beforehand. Move that the question be struck.
2 MR. CARSON: We've already seen --
3 MR. DIVER: This is another example of
4 your deciding in advance, I don't believe there's
5 been any testimony by this witness that he had
6 decided in advance that nothing would work.
7 MR. CARSON: There certainly was, and it
8 concerned Exhibit No. 4, near the beginning of my
9 Cross-examination of this witness when the witness
10 decided before anything had been done that the
11 only viable solution was relocation.
12 MR. DIVER: You talking about October
13 11th, 1993?
14 MR. CARSON: Yes, sir.
15 MR. DIVER: Before anything had been
16 done.
17 MR. CARSON: Yes, sir.
18 MR. DIVER: Not that a particular
19 proposal had been on the table, whether or not
20 that would work.
21 HEARING OFFICER: I'm going to sustain
22 the objection and ask that if you wish to pursue
23 that, rephrase your question.
24 Q. You told M. Williams that there were
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1 questions about the effectiveness of the proposed
2 enclosure when, in fact, you didn't have any idea
3 at all as to whether the enclosure would be
4 effective, isn't that true?
5 A. That's true.
6 Q. You didn't have any comment from any
7 experts regarding the proposed enclosure at that
8 time, did you?
9 A. I had the following, I had the experience
10 of what had purportedly been done prior to July of
11 1994, which had had almost no effect, despite
12 enormous delays. I had reviewed the structure
13 that Al Shiner desinged in early July of 1993,
14 excuse me early July of 1994 with the State EPA,
15 and they did raised some questions about that
16 structure. I was now looking at the structure and
17 it had taken two and a half months during the air
18 conditioning season of 1994 to get a plan to us
19 while my family was being devastated, and I saw
20 that it didn't even have a roof on it, those were
21 the bases for me being to some degree, concerned
22 that this might not be the final solution.
23 MR. CARSON: Exhibit 7 and Exhibit 35.
24 HEARING OFFICER: All right.
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1 BY MR. CARSON:
2 Q. I'm handing you Exhibit 7 and Exhibit 35.
3 These are documents that both bear on a meeting
4 that occurred with the Village Council in January
5 of 1995, right?
6 A. The letter of January 21st bears on that
7 meeting. The letter of January 16th was, I
8 believe prior to the meeting and in response to a
9 letter that Mr. Crown had written.
10 Q. Did you request a meeting with the
11 Village of Winnetka in January of 1995, the
12 Village Board,
13 A. No, Mr. Crown did.
14 Q. Was there an earlier meeting that Mr.
15 Crown was not in attendance at where the issue of
16 his air conditioner was the subject of discussions
17 also in January of 1995?
18 A. There was a meeting in November, but not
19 in January -- there was a village council meeting
20 on January 10th, I believe it was in Winnetka.
21 Q. Okay. And, the Crown air conditioner was
22 the subject of a discussion at a Winnetka Village
23 Council meeting around January 10th of 1995,
24 right?
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
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1 A. I wouldn't say it was the subject of
2 discussion per se. There were two proposed
3 ordinances that were to be discussed at what was a
4 public study group of the village council.
5 Q. And, you were there because you knew that
6 these matters were going to be the subject of
7 discussion?
8 A. Yes, the village had sent the information
9 to both Mr. Crown and myself.
10 Q. You didn't inform Mr. Crown that that
11 meeting was going on?
12 A. The village had informed him.
13 Q. How much notice did Mr. Crown receive, do
14 you know?
15 A. According what Mr. Williams said the
16 night of that meeting, Mr. Crown had just --
17 Q. Excuse me for interrupting, Mr. Shelton,
18 I'm really just interested in knowing if you know
19 how much notice was given to Steven Crown of that
20 meeting?
21 A. I assume it was the same amount of notice
22 that was given to us.
23 Q. How much notice did you receive?
24 A. The materials were mailed to us roughly a
HALSELL & HALSELL REPORTERS, Chicago, IL (312) 236-4984
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1 week before.
2 Q. At the time that this January 10th
3 meeting occurred, were you aware that there was a
4 plan to construct an acoustical enclosure around
5 the air conditioning unit?
6 A. I had been, I had received the plans in
7 September, yes.
8 Q. And, I take it you were frustrated
9 because the enclosure hadn't been built already?
10 A. Well, I had two purposes being at the
11 meeting. There's fairly good attendance that
12 night. There were several things being discussed
13 at the meeting, but one was the particular concern
14 about the Crown air conditioner. If history was
15 any indicator, we could not be very confident
16 that there would be a timely or effective solution
17 for the noise. The second was having lived in the
18 Village for approaching 20 years, I was very
19 concerned about things that are going on in the
20 village, and I thought it terribly important that
21 an ordinance be put in place so that kind of thing
22 would never happen again, which the village
23 subsequently did.
24 Q. Okay.
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1 A. Put an ordinance in place.
2 Q. Just to put your statement about if
3 history was any indicator, up to this point in
4 time, there had been a significant number of
5 efforts or identifiable things done to try to
6 reduce the sound?
7 A. There had been a series of small things
8 done prior to July of 1994, all of which had
9 failed.
10 Q. None of them had satisfied you.
11 A. And most had been, the landscaping in
12 particular had been predicted by, we talked, which
13 I don't know if the Crowns talked to any experts
14 or not, but the ones we had talked to said
15 landscaping is of little relevance to sound
16 control. Trane engineers even told us that.
17 Subsequent to that time, we had had the quick
18 reaction on the Shiner drawing and then the two
19 and a half months as my family was living through
20 this thing of not even a plan, let alone a
21 construction. And then suddenly being told that a
22 different kind of enclosure that doesn't happen to
23 have a top on it is being built.
24 HEARING OFFICER: Okay, thank you. Were
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1 you finished, I'm sorry, I thought you were
2 finished.
3 A. So, for those reasons, I did not have a
4 high level of confidence that the soluton was yet
5 in sight.
6 HEARING OFFICER: Okay. I'm going to ask
7 once again at this point that the witness answer
8 the questions directly posed by counsel as
9 succinctly as possible.
10 A. Sorry, ma'am.
11 Q. As far as the history of what had
12 happened up until that point, a number of
13 different attempts or fixes had been attached with
14 respect to the sound. None of which however,
15 satisfied you and your family, is that a fair
16 characterization?
17 A. The minor things done before July of 1994
18 had not been effective.
19 Q. he rotation of the unit, that was a minor
20 thing?
21 A. We don't know if that was for sound.
22 Q. The blanket over the compressor, that was
23 a minor thing?
24 A. That was later removed.
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1 Q. Was it a minor thing, sir?
2 A. I don't know, but it was later removed.
3 Q. I'm trying to use your words. You said
4 they were minor things. The installation of the
5 cones, the installation of the panels, these were
6 minor things?
7 HEARING OFFICER: Answer to the best of
8 your ability.
9 A. Yes.
10 Q. Are you aware of the cost of these minor
11 things?
12 A. No, I'm not.
13 Q. They didn't satisfy you or your family,
14 though, right?
15 A. Correct, the noise was still extremely
16 high.
17 Q. There was then a meeting with a number of
18 village representatives on January 17, 1995 and
19 Exhibit No. 35, which you have before you, I
20 think--
21 A. Yes.
22 Q. -- speaks to that meeting?
23 A. Yes.
24 Q. And, as I understood your testimony on
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1 direct examination, these notes that are attached
2 to Exhibit No. 35 are notes that were put together
3 by you and Bob Julian as to what transpired at the
4 meeting?
5 A. The notes were put together by me. I
6 thought it important that we memorialize what
7 transpired at the meeting.
8 Q. Did you have handwritten notes at the
9 meeting or did you make handwritten notes at the
10 meeting?
11 A. Yes, I did.
12 Q. And, did your handwritten notes contain a
13 notation that Steven Crown stated "or that he
14 would", take whatever steps are necessary for the
15 Crowns air conditioner to comply with the IEPA
16 nighttime standards? These steps will be taken as
17 fast as is practical concerning design,
18 fabrication, and construction lead times.
19 A. That was my understanding from the
20 meeting. I did not attempt to use exact words, I
21 was trying to describe the essence of the meeting
22 with this outline.
23 Q. And you remember Mr. Crown stating that
24 he would take whatever steps are necessary?
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1 A. That was my understanding, yes.
2 Q. Well, what did he say that caused you to
3 have that understanding?
4 A. I thought that he said that if the
5 readings are not satisfactory, then we will take
6 the necessary further steps. And by that, I
7 thought he was alluding to the steps Al Shiner had
8 talked about, if you will look under Point 2 where
9 Mr. Shiner had said that with this enclosure, if
10 it doesn't work, then additional steps can be
11 taken to make it comply with the nighttime
12 standards. And I believe that Mr. Crown
13 subsequently indicated that he agreed that Mr.
14 Shiner had indicatd this.
15 Q. And in fact, Mr. Crown also subsequently
16 responded to your letter saying I did not say that
17 I would take whatever steps are necessary to
18 comply with Illinois EPA nighttime standards?
19 A. He agreed with these points, with the
20 exception of Point 4 A, which has to with taking
21 the further steps.
22 Q. At that meeting, was it also discussed
23 that -- strike that -- did you say at that meeting
24 that if the unit would come within 10 percent of
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1 the IEPA nighttime standards, that would be
2 satisfactory?
3 A. I don't remember saying that
4 specifically. I may well have said that if the
5 unit, you know, our goal is to try to get the
6 noise reduced, if it comes within a reasonable
7 proximity of the night time standards, that would
8 be all right. I vaguely recall saying something to
9 that effect. I don't recall saying 10%.
10 Q. Before Leaving Exhibit Number 7, on Page
11 4, this is a portion of your letter where you
12 state that you're pointing out 3 points in
13 Steven's January 10th letter that were
14 particularly in error, and the second one states
15 in 1993, we had asked the Crowns if they would be
16 interested in buying our house, and that was a
17 statement that had been made in Mr Crown's
18 January 10 letter, right?
19 A. Yes.
20 Q. But, that was not in error, was it?
21 A. I would have to refresh myself by looking
22 at his letter, but the context in which it was
23 stated that there was something sinister about our
24 phone call, and I wanted to clarify that that was
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1 not the case at all. It's just as it's laid out
2 here, and as I testified to a little bit ago.
3 Q. You telephoned Steven Crown and said
4 would you like to buy my house, right?
5 A. Yes.
6 Q. And, you gave him a price of $1.2
7 million, give or take, right?
8 A. I Believe it was 1.1.
9 Q. $1.1 million, and he expressed no
10 interest in buying your house, right?
11 A. Short circuiting it, there were a couple
12 of phone calls during which time we went back to a
13 broker and so on, and I explained to him why we
14 were thinking about this.
15 Q. Okay. And, this exchange of phone calls
16 occurred pror to the installation or certainly
17 prior to firing up of this air conditioner, right?
18 A. Right.
19 Q. And, after he turned you down at sometime
20 later, the air conditioner is started and you
21 begin to make statements that it's making your
22 house unlivable and you're going to have to move
23 right? And, you've made a series of those
24 statements to various people, including in this
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1 hearing, right?
2 A. I think I can't agree with what you're
3 saying, counsel. You're trying to characterize,
4 put words into my mouth, taking things a little
5 out of context.
6 Q. I'm just raising a question as to whether
7 it might appear that something is confusing or
8 sinister about this.
9 MR. KAISER: Objection.
10 HEARING OFFICER: Okay, let's go off the
11 record for just a moment to discuss the need to
12 come to an agreement as to the conclusion of our
13 day's proceedings today.
14 (Off the record)
15 HEARING OFFICER: Back on the record.
16 We've been discussing the scheduling and we will
17 pick up immediately on an objection we had now, we
18 have an objection to the last statement made by
19 counsel for Respondents during the cross
20 examination. Counsel, did you have a response to
21 the objection?
22 MR. CARSON: I thought it was a question
23 that I asked, you just said it was a statement.
24 Maybe if we have it read back.
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1 HEARING OFFICER: Let's have it read
2 back.
3 MR. CARSON: My response, your Honor, is
4 simply that on Exhibit No. 7, this witness stated
5 that he doesn't see anything confusing or
6 sinister about it. I tried to give him in
7 explaining the series of events and then now I'm
8 asking him to reconsider if he sees anything
9 confusing or sinister about it.
10 MR. KAISER: Asks him to speculate on
11 whether it might appear sinister to some who knows
12 who, whether to himself or some third party, it's
13 irrelevant and calls for speculation.
14 HEARING OFFICER: All right. The
15 objection is sustained. I would like to ask the
16 witness again to answer each question to the best
17 of his ability and succinctly, and counsel, you
18 may continue with your questioning on that issue.
19 And then, I believe we'll be taking a break
20 shortly.
21 Q. Mr. Shelton, you did make the statement
22 in this letter, we don't see anything confusing.
23 or sinister about this, as suggested by Steven,
24 right?
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1 A. Yes, I did.
2 Q. And where is it that Steven suggested
3 that there was something sinister about it?
4 A. There was a letter that Steven wrote as
5 of January 10th. I don't have a copy in front of
6 me, however, it was our feeling that a number of
7 the facts were wrong and that in particular he had
8 insinuated in that letter that there was
9 something connected between our complaint about
10 the air conditioner and the fact that we talked
11 about selling our house to him some months
12 earlier.
13 Q. Was our next Exhibit, your Honor, 7?
14 HEARING OFFICER: Yes.
15 MR. CARSON: I'll wrap up this area in
16 just a moment.
17 Q. Respondent's Exhibit 7 is a letter dated
18 January 10th, 1995 to Winnetka Village Council
19 from Steven Crown. This is Respondent's Exhibit
20 No. 7, is that the letter you're referring to?
21 A. Yes.
22 Q. And, in fact, the letter that's been
23 identified as Exhibit 7, Petitioner's Exhibit 7
24 is, in essence, your response to Respondent's
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1 Exhibit number 7?
2 A. Yes, it is?
3 Q. In Mr. Crown's letter, he described the
4 circumstances concerning the possible purchase of
5 your home in the second full paragraph on the
6 second page, do you see that?
7 A. Yes, I do.
8 Q. And in the middle of that paragraph, he
9 says this was somewhat confusing, but he didn't
10 say it was sinister, did he?
11 A. I think if you read the entire paragraph,
12 counsellor, that at least as I read it, it posed
13 questions that, to me, seemed intended to arouse
14 suspicions.
15 Q. Suspicions that perhaps your motivations
16 might arise from a desire to sell your home?
17 A. That's what I thoguht the implication in
18 this paragraph was.
19 Q. But, you didn't get the same implication
20 from the circumstances as you believe Mr. Crown
21 was trying to insinuate?
22 A. For one thing, I don't have to rely on
23 implication, I know in my mind what happened. I
24 know for a fact what happened, and there is
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1 absolutely no linkage. Secondly, when I stand
2 back and try to objectively look at the fact I
3 don't see anything that is suspicious at all as
4 was suggested by this paragraph and Steven's
5 letter. That's why we have the response.
6 Q. The fact remains, though, does it not,
7 that you desired to sell your home, before the air
8 conditioner became operational and after the air
9 condtioner became operational?
10 A. As I testified this morning, in the
11 spring of 1993, we were considering the
12 possibility of selling, but had concluded that we
13 didn't want to go through the listing process. We
14 would only do it if a sale happened to be readily
15 available. And, Mr. Crown was an obvious
16 possibility, a neighbor building an enormous house
17 and it seemed an innocent kind of question to ask
18 if he would be interested in buying our house.
19 Q. You wanted to sell the house, then, if it
20 could be easily done?
21 A. If it could be easily done.
22 MR. CARSON: This would be a good time to
23 break.
24 HEARING OFFICER: All right. We have
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1 now come to the conclusion of this day's
2 proceedings. And, the continuation of this hearing
3 will occur on August 19th at 9:00 a.m. The room
4 will be announced. In the interim, a transcript
5 of the proceedings we have had to date will be
6 available in the interim. Thank you for your
7 attendance and cooperation in our process and
8 we'll see you then.
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1 CERTIFICATION
2
3 I, VERNETTA MCCREE, A Certified
4 shorthand Reporter doing business in the State of
5 Illlinois, Certify that I reported in shorthand
6 the testimony taken in above-entitled matter, and
7 that this constitutes a true and accurate
8 transcription of my shorthand notes so taken as
9 aforesaid.
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13 _______________________________
14 VERNETTA MCCREE
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