ILLINOIS POLLUTION CONTROL BOARD

STANDARD OF DECISION
1. _
CONCLUSION

December 6, 2001

ROBERT and YVONNE GARDNER, )

) (Citizens Enforcement - Noise)

TOWNSHIP HIGH SCHOOL DISTRICT 211 )

and GERALD CHAPMAN, )

)

Respondents. )

ORDER OF THE BOARD (by S.T. Lawton, Jr.:

On October 12, 2001, the Township High School District 211 and its superintendent,

Gerald Chapman (respondents) filed a motion for summary judgment. Robert and Yvonne

Gardner (complainants) filed their response to the motion on October 25, 2001. This matter

involves allegations that respondents’ air conditioning units on the roof of Hoffman Estates High

School cause noise pollution in violation of the Environmental Protection Act (Act) and Board

regulations. The Board denies respondents’ motion for summary judgment for the reasons

explained below.

STANDARD OF DECISION

Summary judgment is appropriate when the pleadings and depositions, together with any

affidavits and other items in the record, show that there is no genuine issue of material fact and

that the moving party is entitled to judgment as a matter of law. Dowd & Dowd, Ltd. v. Gleason,

181 Ill. 2d 460, 693 N.E.2d 358 (1998); People v. City of Waukegan (Waukegan), PCB 01-104,

slip op. at 2 (Aug. 23, 2001). In ruling on a motion for summary judgment, the Board “must

consider the pleadings, depositions, and affidavits strictly against the movant and in favor of the

opposing party.” Dowd, 181 Ill. 2d at 483, 693 N.E.2d at 370; Waukegan, PCB 01-104, slip op.

at 2.

Summary judgment “is a drastic means of disposing of litigation,” and therefore it should

be granted only when the movant’s right to the relief “is clear and free from doubt.” Dowd, 181

Ill. 2d at 483, 693 N.E.2d at 370,

citing

Purtill v. Hess, 111 Ill. 2d 229, 240, 489 N.E.2d 867, 871

(1986). However, the party opposing a motion for summary judgment may not rest solely on its

pleadings, but must “present a factual basis which would arguably entitle [it] to a judgment.”

Gauthier v. Westfall, 266 Ill. App. 3d 213, 219, 639 N.E.2d 994, 999 (2nd Dist. 1994);

Waukegan, PCB 01-104, slip op. at 2.

BACKGROUND

Complainants reside at 1545 Fairfield Lane in Hoffman Estates, approximately 350 feet

from Hoffman Estates High School. Complainants alleged in their November 27, 2000

complaint that respondents installed five banks of air conditioning units or “chillers” on the roof

of Hoffman Estates High School during August 1999, and operate the units on Monday through

Friday from 6 a.m. to 9 p.m. as well as various times on Sunday. Comp. at 3.

The chillers

allegedly cease operation in the winter months. Complainants said that, “[d]epending upon the

outside temperature, some or all of the chillers may be running throughout the day.” Comp. at 3.

Complainants allege that chillers cause noise pollution in violation of Section 24 of the Act (415

ILCS 5/24 (2000)) and the noise nuisance provision in Section 900.102 of the Board regulations

(35 Ill. Adm. Code 900.102).

APPLICABLE STATUTES AND BOARD REGULATIONS

Section 24 of the Act provides that:

No person shall emit beyond the boundaries of his property any noise that

unreasonably interferes with the enjoyment of life or with any lawful business or

activity, so as to violate any regulation or standard adopted by the Board under

this Act. 415 ILCS 5/24 (2000).

Section 900.102 of the Board regulations provides that:

No person shall cause or allow the emission of sound beyond the boundaries of

his property, as property is defined in Section 25 of the [Act], so as to cause noise

pollution in Illinois, or so as to violate any provision of this Chapter. 35 Ill. Adm.

Code 900.102.

Section 900.101 of the Board regulations defines noise pollution as:

[T]he emission of sound that unreasonably interferes with the enjoyment of life or

with any lawful business or activity. 35 Ill. Adm. Code 900.101.

Section 101.516 of the Board’s procedural rules provides that:

If the record, including pleadings, depositions and admissions on file, together

with any affidavits, shows that there is no genuine issue of material fact, and that

the moving party is entitled to judgment as a matter of law, the Board will enter

summary judgment. 35 Ill. Adm. Code 101.516.

RESPONDENTS ARGUMENTS

The complaint filed by Robert and Yvonne Gardner will be referred to as “Comp. at __.”

Respondents allege that the Board should grant its motion for summary judgment on two

grounds. First, respondents contend that they are entitled to summary judgment because they

allegedly did not violate any applicable numerical standards. Respondents point out that two

separate and unrelated organizations conducted sound level testing at or near the complainants’

property line and adjacent to the school, and concluded that the sound from the chillers did not

violate applicable sound level standards. Mot. at 6.

Respondents included test results and an

accompanying affidavit by Mr. Rudolph Trejo of the Cook County Department of Environmental

Control (CCDEC), which allege that respondents were not in violation of the Cook County

Environmental Control Ordinance. Mot. at 6; Mot. Exh. F. Additionally, respondents retained

Mr. Clete Davis of Kirkegarrd & Associates, who also conducted sound level tests. Mr. Davis

concluded that “the levels measured at the time the measurements were taken did not constitute a

violation of the Cook County noise ordinance requirements.” Mot. Exh. C. Respondents assert

that, based on the results of these two tests, the Board should grant its motion for summary

judgment.

Respondents also argue that, even if the lack of numeric violations does not provide a

defense to this matter, any possible interference with complainants’ use of their property is not

unreasonable. Respondents weigh the evidence currently on record against factors set forth in

Section 33(c) of the Act in an attempt to show that, as a matter of law, the interference by the

chillers is not unreasonable. Section 33(c) of the Act includes five factors that the Board must

consider when determining whether interference from alleged noise pollution is unreasonable.

See

2001).

Respondents allege that the Board has previously found a similar situation was not

unreasonable in light of Section 33(c) factors, in a case involving a residential property owner

that sought relief for noise pollution caused by air conditioning units at the University of Illinois

School of Medicine in Rockford.

See

Furlan v. University of Illinois School of Medicine, PCB

93-15, slip op. at 16 (Oct. 3, 1996). Respondents allege that the facts currently on record in this

matter are less severe and do not allow for a finding of unreasonableness because complainants

can hold a normal conversation with the windows of their house both closed and open, and

complainants did not indicate that they could not use any portion of the household. Mot. at 9.

COMPLAINANTS ARGUMENTS

Complainants contend that the Board should deny respondents’ motion for summary

judgment on two grounds. First, complainants challenge the accuracy and evidentiary weight of

the sound measurements taken in this matter. The complainants point out that neither the

CCDEC nor Kirkegarrd & Associates certify that their methods in taking sound measurements

were in accordance with Board regulations. Complainants also state that the corresponding

reports by these groups do not indicate the number of chillers that were operating during the

sound measurements, or describe other factors such as weather conditions that could affect the

readings.

The motion for summary judgment filed by respondents on October 12, 2001, will be referred

to as “Mot. at ___.” Exhibits attached to the motion will be referred to as “Mot. Exh. __.”

Complainants additionally argue that the respondents cannot rely on the numeric data as a

defense to an alleged noise nuisance violation. Complainants quote the Board’s finding in

Zarlenga v. Partnership Concepts, that “[i]t is inappropriate . . . to use numerical data to show

compliance with the noise nuisance regulatory standard.” Resp. at 2,

quoting Zarlenga, PCB

89-169, slip op. at 8 (May 9, 1991).

Second, complainants challenge respondents’ allegation that the interference with the

complainants’ use of their property is not unreasonable. Complainants allege that the chillers

cause a low frequency hum similar to a low horn blowing, which results in an unreasonable

interference with the use and enjoyment of their property. Comp. at 3-4. Complainants maintain

that the noise interferes with their sleep. Mr. Gardner stated in his deposition that he woke up

earlier on week-days due to the chillers, and cannot sleep when they are running. Resp. at 2-3.

Complainants rely on a previous Board finding to support their premise that “[d]eprivation of

sleep constitutes one of the most serious injuries short of trauma.” Zarlenga v. Partnership

Concepts, PCB 89-169, slip op. at 10 (May 9, 1991).

Complainants further allege that they purchased their home in 1989, prior to the

installation of the chillers in 1999, and would not have bought the home if they had heard the

noise at the time of purchase. Resp. at 3. Complainants state that they cannot enjoy their back

yard when the units are running. Resp. at 3. Complainants attached a petition to their complaint

containing the signature of 34 nearby residents that called for the reduction of the noise level

created by the chillers to a negligible level, as it had been for the 26 years prior to 1999. See

Comp. Exh. A.

Complainants allege that some of these neighbors plan to testify about the noise

from the chillers. Resp. at 4.

DISCUSSION

The Board first discusses whether it should grant summary judgment based on

respondents’ allegations that the chillers do not violate numeric noise limits under the Act or

Board regulations. The Board next addresses whether it should grant summary judgment on the

grounds that, as a matter of law, any interference that complainants experience from the noise

generated by the chillers is not unreasonable.

Respondents contend that they are entitled to summary judgment because they have not

allegedly violated any applicable numeric standards. Respondents previously raised this

argument in their December 13, 2000 motion to dismiss. The Board rejected it in its January 4,

2001 order in this case. The Board reiterates its holding that compliance with numeric noise

emissions values does not present an absolute bar to a finding of violation of general noise

nuisance prohibitions. Gardner v. Township High School District, PCB 01-86, slip op. at 4 (Jan.

4, 2001);

see also

Zarlenga, PCB 89-169, slip op. at 8-9, citing Will County Environmental

Network v. Gallagher Blacktop, PCB 89-64, slip op. at 8 (Jan 11, 1990). A nuisance claim under

Complainants filed a response to the motion for summary judgment on October 25, 2001,

which is referred to as “Resp. at ___.”

The exhibit attached to the complaint will be referred to as “Comp. Exh. A.”

Section 24 of the Act and Section 900.102 of the Board’s noise rule can be found to exist even if

the sound does not violate the numeric noise limits established in other portions of the Board’s

regulations. Gardner, PCB 01-86, slip op. at 4. The Board accordingly denies summary

judgment as respondent has not proven it is entitled to judgment as a matter of law.

The Board next addresses whether it should find as a matter of law that any interference

from respondents’ chillers to complainants’ enjoyment of life or lawful business activity is not

unreasonable. The Board cannot grant summary judgment on these grounds for two reasons.

The Board cannot grant summary judgment to a party if a genuine issue of material fact exists.

See

Dowd, 181 Ill. 2d at 483, 693 N.E.2d at 370. The extent of the noise from the chillers and

the impact that it has on the complainants are still at issue in this matter. Complainants, among

other things, plan to have neighbors testify about the severity of the noise from the chillers. The

testimony by complainants’ neighbors would be directly relevant to the question of whether the

chillers cause unreasonable interference.

Since there is a genuine issue of material fact, the Board cannot grant summary judgment

as a matter of law. The analogies drawn to Board precedent by both complainants and

respondents further demonstrates that the severity of the noise caused by the chillers is still in

dispute. Respondents believe that the facts in this case are analogous to Furlan, which found that

interference from university air conditioning units was not unreasonable despite allegations that

complainants could neither sleep in nor use part of their residence. Furlan, PCB 93-15, slip op.

at 16. Complainants allege that they experience the type of sleep deprivation that the Board

previously found amounted to unreasonable interference.

See

Zarlenga, PCB 89-169, slip op. at

10; Will County Environmental Network, PCB 89-64, slip op. at 8. The Board decided the cases

cited by both parties upon fully developed hearing records. The record in this case must also be

complete before the Board can determine whether the chillers cause unreasonable interference.

CONCLUSION

The Board accordingly denies respondents’ motion for summary judgment and directs the

parties to proceed to hearing.

IT IS SO ORDERED.

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board

adopted the above order on December 6, 2001, by a vote of 5-0.

Dorothy M. Gunn, Clerk

Illinois Pollution Control