ILLINOIS POLLUTION CONTROL BOARD
December 16,
1993
KENNETH F. METIVIER
)
AND
CYNTHIA METIVIER,
)
)
Complainant,
)
V.
)
PCB 92—74
(Enforcement)
)
DOUGLAS KENYON d/b/a DOUGLAS
)
KENYON,
INC.,
)
Respondent.
KENNETH F. METIVIER
AND
CYNTHIA P. METIVIER APPEARED PRO SE;
UVE
R.
JERZY, MANDEL,
LIPTON AND STEVENSON,
LTD., APPEARED ON
BEHALF OF RESPONDENT.
OPINION AND ORDER OF THE BOARD
(by J. Theodore Meyer):
On May 12,
1992, Kenneth and Cynthia Metivier (Metiviers)
filed a complaint against Douglas Kenyon, doing business as
Douglas Kenyon,
Inc., an art gallery located in Chicago,
Illinois.
The complaint alleges violation of the noise nuisance
provisions contained in Sections 23 and 24 of the Environmental
Protection Act
(Act)
(415 ILCS 5/23
& 24
(1992)) and 35 Ill.
Adni.
Code 900.102.
A hearing was held on August 5,
1992,
in Chicago,
Illinois before hearing officer Medard Narko.
No members of the
public attended the hearing.
Each of the parties presented
testimony on their own behalf but called no other witness in
support of their respective claims.
No briefs were filed
in this
matter.
BACKGROUND
The complaint alleges that a whining, whirring, humming
sound similar to that produced by a vacuum sweeper creates a
nuisance that destroys the Metiviers’ ability to concentrate on
and enjoy personal, social, recreational and business pursuits.
The Metiviers contend that the sound comes from a machine at
Douglas Kenyon Inc.,
a neighboring art gallery and art
restoration business.
The Metiviers live in a house located on
the rear of a lot on West Schiller Street in Chicago,
Illinois.
The Metiviers have lived at this location for more than 16 years.
(Tr. at 59.)
The restoration area of the art gallery is located
across the alley from the Metiviers’ residence.
The distance
between the Metiviers’ residence and the art gallery is
approximately 22
feet,
the width of the alley between the
Metiviers’ residence and the art gallery.
(Tr.
at 37.)
2
The Metiviers first noticed the noise in the fall of 1990.
(Tr.
at 13.)
They have traced the noise to equipment at the art
gallery that is located next to a window and is vented through an
adjacent window.
(Tr. at 13.)
The equipment is operated at
frequent and irregular intervals for up to thirty minutes.
(Tr.
at 14.)
The equipment is operated between the hours of nine a.m.
and five p.m., Tuesday through Saturday.
(Tr. at 14.)
Mr.
Metivier described the noise as being similar to the noise from a
vacuum sweeper.
(Tr. at 14.)
The noise can be heard throughout
the Metiviers’ residence and surrounding property.
(Tr. at 15.)
The noise can still be heard when windows are closed.
(Tr. at
15.)
The Metiviers note that the noise has forced them to make
adjustments in their normal living habits.
(Tr. at 15.)
They
have been forced to close windows and doors to escape the noise.
(Tr.
at 15.)
The noise has forced them to move to other parts of
the house and at times to leave the house.
(Tr. at 16.)
They
contend that even during periods of quiet, they experience
tension and anxiety due to the anticipation of the reoccurrence
of the noise.
(Tr. at 16.)
Mr. Metivier claims that the noise
has destroyed their ability to concentrate on such activities as
reading,
writing, maintaining a conversation, entertaining,
listening to music or relaxing.
(Tr. at 16.)
The Metiviers submitted sketches and photographs to show the
area and the relationship of the art gallery to their residence.
(Comp.
Exh.
1
—
3.)
The Metiviers also submitted a tape
recording taken from a window sill of their home.
(Comp. Exh.
5.)
The tape was offered to the show the quality of the noise but not
necessarily the volume or quantity of the noise.
(Tr. at 24.)
The respondent objected to the submission of the tape due to an
insufficient foundation.
(Tr. at 108.)
The Board accepts the
admission of the tape recording but only to demonstrate the type
of noise and not as evidence of the level of noise.
The Metiviers also provided testimony concerning noise and
fumes from trucks in the alley making deliveries to the art
gallery.
However, such allegations were not included in the
complaint nor have the Metiviers moved to amend the complaint.
Therefore, these allegations will not be further considered by
the Board.
The gallery has been at its present location since 1985 and
has been in operation since 1969.
(Tr. at 152.)
The art gallery
specializes
in the conservation and restoration of documents and
works of art.
(Tr.
at 123.)
Mr. Joel Oppenheimer has been
employed by Kenyon for over fourteen years.
(Tr. at 121.)
On
June 30,
1992,
Mr. Oppenheimer purchased the art gallery from Mr.
Douglas Kenyon.
(Tr. at 122.)
Mr. Oppenheimer notes that the
Metiviers and the prior owner of the art gallery, Douglas Kenyon,
had an antagonistic relationship.
(Tr. at 132.)
3
The machine from which the noise is generated is called a
cold suction vacuum table.
(Tr. at 123.)
The machine consists of
a 30 x 40 inch table with
a perforated stainless steel screen and
a vacuum motor.
(Tr. at 124.)
The suction is channelled from the
motor to the table on which the piece of art is placed.
(Tr. at
124.)
The machine is vented through the window with an accordion
type hose.
(Tr. at 125.)
Usage of the machine depends on the
type of projects in the art gallery, but the machine is usually
used once a day.
(Tr. at 126.)
The machine can be set from zero
to ten but is usually set at seven.
(Tr. at 128.)
The maximum
amount of time that the machine is run is thirty minutes and
usually it is operated for a period considerably less than thirty
minutes.
(Tr. at 129.)
The windows near the machine are often
open to provide ventilation and air circulation.
(Tr. at 130.)
The respondent submitted copies of inspection reports from
the City of Chicago.
(Resp.
Exh.
1.)
These inspections were made
in response to complaints received by the city concerning noise
from the art gallery.
The city inspected the site on four
occasions between November 8, 1990 and March 10,
1992.
(Resp.
Exh. 1.)
During one inspection the city performed sound
measurements.
(Resp.
Exh.
1.)
The reports from the inspection
state that no excessive noise was detectable.
(Resp.
Exh.
1.)
The city found no violation as a result of its inspections.
(Resp.
Exh.
1.)
Mr. Oppenheimer testified that two days prior to the
hearing, the machine was relocated to an area opposite the alley.
(Tr. at 141.)
The machine was moved in response to the
Metiviers’
complaint but was not done until then due to Mr.
Oppenheimer not having the authority to do so until he purchased
the business.
Other business concerns related to the operations
of the art gallery also prevented the machine from being
relocated sooner.
(Tr. at 142.)
Mr. Metivier admits that the relocation of the machine
should eliminate the noise problem.
(Tr. at 33.)
However,
because the machine was moved only two days before the hearing
and did not operate on one of those days, he does not know the
effect of moving the equipment.
Further, Mr. Metivier notes that
they have endured the noise for almost two years.
(Tr. at 34.)
He is also concerned that the machine may be returned to the
previous location and the noise will return.
(Tr. at 34.)
DISCUSSION
Section 23 of the Act describes the finding of the General
Assembly concerning excessive noise and the purpose of the title.
As this section of the Act does not prohibit any activity, the
Board cannot find a violation of this section.
4
Section 24 of the Act provides that “(n)o 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”.
Accordingly, the Board’s rules define noise
pollution as “the emission of sound that unreasonably interferes
with the enjoyment of life or lawful business or activity” and
prohibit the emission of such noise pollution beyond the
boundaries of one’s property.
(35 Ill. Adm. Code 900.101 and
900.102.)
Thus, under the Act and Board regulations, a violation of
the Board’s “noise nuisance” regulation has occurred if the
complainant has proven that the complained of noise pollution has
unreasonably interfered with the complainant’s enjoyment of life
or with his pursuit of any lawful business or activity.
If there
is no interference, no “noise nuisance” violation is possible.
(Zivoli v.
Prospect Dive and Sport Shop (March 14,
1991),
PCB 89-
205 at 9.)
Interference is more than an ability to distinguish
sounds attributable to a particular source.
Rather, the sounds
must objectively affect the complainant’s life or business
activities.
(u.;
Kvatsak v.
St. Michael’s Lutheran Church
(August 30,
1990), PCB 89-182.)
Sound does not violate the Act
or Board regulations unless it causes unreasonable interference
with the enjoyment of life or lawful business or activity.
The “reasonableness”
of the noise must be determined in
light of the factors set forth in Section 33(c)
of the Act (415
ILCS 5/33(c)
(1992)).
(See Wells Manufacturing Co.
v. PCB
(1978),
383 N.E.2d
148,
150; Ferndale Heights Utilities Co.
v. PCB (1st
Dist.
1976),
358 N.E.2d 1224.)
The relevant factors are:
(1)
the character and degree of injury to, or interference with,
the
protection of the health, general welfare and physical property
of the people;
(2)
the social and economic value of the pollution
source;
(3)
the suitability or unsuitability of the pollution
source to the area in which it is located, including the question
of priority of location in the area involved;
(4) the technical
practicability and economic reasonableness of reducing or
eliminating the emissions
...
resulting from such pollution
source; and
(5) any subsequent compliance.
(415 ILCS 5/33(c)
(1992).)
Character and Degree of In-jury
In assessing the character and degree of the injury or
interference caused by the noise emissions from the vacuum table,
the Board looks to whether the noise substantially and frequently
interferes with the use and enjoyment of life and property,
beyond minor trifling annoyance or discomfort.
(Kvatsak, PCB 89-
182 at 9.)
The art gallery operates from Tuesday through Saturday from
5
9:00 a.m. to 5:00 p.m.
The vacuum table is operated at irregular
intervals on an as needed basis.
The duration of the operation
of the table varies but does not exceed thirty minutes and is
usually
for
much
shorter
periods
of
time.
While
Mr.
Metivier
testified that the noise interfered with many activities,
he did
not
provide
specifics
of
how
the
activities
were
interrupted
or
the
extent
of
the
interference.
The testimony supports a finding that the noise creates an
annoyance.
However the Board finds that the noise does not
substantially and frequently interfere with the use and enjoyment
of life and property.
Social and Economic Value
There is no evidence in the record regarding the social and
economic value of the art gallery.
However, the Board recognizes
the social and economic value associated with an established
business which has been in operation for 24 years and at the same
location for
8 years.
Suitability or Location
The record indicates that both the Metiviers and the art
gallery are appropriately located.
The art gallery has presented
documentation from an architect that indicates that the vacuum
table at the art gallery is not in violation of any zoning
requirements.
(Resp.
Exh.
2.)
The Metiviers have lived at this
location for more than 16 years, while the art gallery has been
in its present location for
8 years.
The area is mixed zoning
with both residential and commercial properties.
(Comp.
Exh.
1.)
Technical Practicability and Economic Reasonableness of Control
The focus of inquiry into the technical practicability and
economic reasonableness of control measures is on what can be
done about the allegedly offensive noise.
(Zivoli, PCB 89-205 at
12.)
The only testimony concerning control measures involves
relocation of the machine.
Relocation of the machine was the
relief requested in the complaint.
The Board finds this method
of control to be technically practical and economically
reasonable,
because the art gallery has relocated the machine.
Subseguent Compliance
The vacuum table has been moved to a location on the
opposite side of the building.
The machine is now vented through
a window that opens to a courtyard of the art gallery.
The
parties believe that the relocation of the machine should
eliminate the noise problem.
6
CONCLUSION
The Board finds that the alleged noise does not constitute a
violation of the Act.
The Board finds that the noise does not
present an unreasonable interference with the enjoyment of life
or lawful business or activity.
The Board notes that the only
noise readings presented where taken by the City of Chicago and
demonstrated no detectable excessive noise.
The noise is
confined to daytime hours and is for a limited duration.
The art
gallery is suited to its location.
The new owner of the art
gallery has responded to the complaint by relocating the machine,
which the parties believe will eliminate the noise transmitted to
the Metiviers’ property.
Based on an evaluation of the evidence and the factors
enumerated in Section 33(c)
of the Environmental Protection Act,
the Board finds that the record does not support a finding that
Doug Kenyon,
d/b/a Doug Kenyon Inc. has caused noise pollution in
violation of the Act.
The foregoing constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
Based on an evaluation of the evidence and the factors
enumerated in Section 33(c)
of the Environmental Protection Act,
the Board finds that Doug Kenyon, d/b/a Doug Kenyon Inc. has not
operated in violation of Sections 23 and 24 of the Act and 35
Ill.
Adm. Code 900.102.
The complaint is accordingly dismissed.
IT IS SO ORDERED.
Section 41 of the Environmental Protection Act,
(415 ILCS
5/41
(1992)), provides for appeal of final orders of the Board
within 35 days.
The Rules of the Supreme Court of Illinois
establish filing requirements.
(See also 35 Ill.
Adin. Code
101.246, Motion for Reconsideration.)
I, Dorothy M. Gunn,
Clerk of the Illinois Pollution Control
Board,
hereby certify
t)hat
the above opinion, and order was
adopted on the
~
day of
-~~-&‘
1993,
by a vote of
7-c
Dorothy M. 4inn, Clerk
Illinois PQllution Control Board