ILLINOIS POLLUTION CONTROL BOARD
May 21,
1992
VITO ZIVOLI
AND
)
STELLA PODCZERWINSKI,
)
Complainants,
v.
)
PCB 90—200
)
(Enforcement)
SOMEBODY’S
BAR AND
RESTAURANT
)
AND
PROGRESS INV.
II,
)
Respondents.
MR. VITO ZIVOLI APPEARED PRO SE ON BEHALF OF COMPLAINANTS
MR. ROBERT HOUSEHOLDER APPEARED PRO SE OF BEHALF OF SOMEBODY’S
BAR AND
RESTAURANT
MR.
HOWARD
E.
KAGAY
APPEARED
PRO
SE
ON
BEHALF
OF
PROGRESS
INVESTMENTS
II
OPINION
AND
ORDER OF THE BOARD
(by
3.
Anderson):
This matter is before the Board on the November 12,
1990
filing of a formal complaint by Vito Zivoli and Stella
Podczerwinski against respondent Somebody’s Bar and Restaurant,
pursuant to Section 31(b)
of the Environmental Protection Act
(Act)
(Ill.
Rev.
Stat.
1991,
ch.
111 1/2, par. 1031(b)).
Progress mv.
II was added as a respondent by hearing officer
order.
The complaint alleges that the noise emitted from
respondents’ property unreasonably interferes with complainants’
enjoyment of life and lawful activity.
(Ill.
Rev.
Stat.
1991,
ch.
111 1/2, par.
1024;
35 Ill. Adm. Code 900.102).
Hearing was
held in Chicago, Illinois on September 16,
1991, at which no
members of the public attended.
BACKGROUND
Complainant Vito Zivoli lives
in a duplex at 851 S.
McKinley, Arlington Heights, Illinois; co-complainant Stella
Podczerwinski lives
in a duplex next door to Mr.
Zivoli at 847 S.
McKinley.
Their buildings are separated by a dual front-to-rear
driveway.
It appears that Mr. Zivoli’s duplex is co-owned with
Ms. Podczerwinski, having been bought four years ago.
The
buildings are zoned residential for apartments.
Somebody’s Bar
and Restaurant
(Somebody’s)
is located at 858 S. Arthur Ave.
in
the Village of Arlington Heights ~(Village). The property has
been owned since about 1975 by Progress mv.
II; within a year or
two after the building was built, there was a restaurant and bar,
having been approved for that use by the Village of Arlington
Heights
(Village)
in an area zoned commercial.
Somebody’s has
133—46 7
2
been a tenant for five years.
(Compl. pp.
1-3; Amend.
Compl.;
R.
8,9,75-77).
Complainants’ buildings include a rear garage with
an apron facing the driveway.
Somebody’s building is behind the
complainants’ buildings,
with
a fence and then an easement that
appears to be the width of an alley separating them.
(Compl.
Ex.
1,
3;
R.
11).
The testimony was rresented in narrative form; none of the
parties.were attorneys.
All witnesses, though, were sworn at
the startof hearing.
(R.
4.).
Mr. Zivoli appeared on behalf of
the complainant.
Co—complainant Podczerwinski did not appear,
having had an allergic reaction from a bee sting the day before;
however, the parties agreed that Mr. Zivoli’s testimony reflects
the testimony his co—complainant would have given at hearing.
(R.
5,
85).
Mr. Howard
E. Kagay appeared on behalf of Respondent
Progress Investments II.
Mr. Robert Householder appeared on
behalf of Respondent Somebody’s Bar and Restaurant.
Mr. Howard
R. Schecter, Director of Midwest Environmental Assistance Center
in Chicago appeared at the behest of Respondent Mr. Householder.
THE HEARING ISSUES
The complaint involves an exhaust fan for the restaurant
food service, which is mounted high enough on the back of
Somebody’s building to be visible to the complainants, but
appears to be mostly behind Ms. Podczerwinski’s back yard.
(Compl.
Ex.
3;
R.
10).
At hearing, however, Mr. Zivoli did not
confine himself to the complaint at issue.
The formal Complaint
alleges that the fan is on 24 hours a day,
7 days a week, all
year.
However, at hearing Mr.
Zivoli testified that he thinks
the fan turns off about four or five a.m., but is sure it is on
when he retires at ten or eleven.
Mr. Householder stated,
without rebuttal, that the fan comes on at eleven o’clock a.m.
and shuts off at midnight.
(R.
7,
10).
Mr..
Zivoli testified that he can see the fan from his back
door and is unable to enjoy his patio and back yard because of
the noise.
He said he cannot stand next to the fans;
especially
when parking cars it is hard to carry on a conversation in the
parking lot.2
Mr. Zivoli stated that, depending on how the wind
blows, the noise goes directly in his and his children’s bedroom
The distinctions between opening statements and questions
and
testimony were
not
always
made
clear
in
the
record.
For
example,
opening
statements
became
evidence
as
testimony
and
questions often became more of a debate.
(R.
11,
75).
2
The patio is not identified in the record or exhibits.
It
appears that Mr.
Zivoli may be referring to the paved area near
where the cars are parked
in back near the fence.
I 33—46R
3
window.3
Mr. Zivoli called the noise “annoying” and “irritable”.
(R.
7,
15).
He stated that it does not go away,
like the planes.
He stated that they often go out in the morning to enjoy
themselves and then, when the fans come on, they go into the
house, close the windows and turn on the air conditioning.
(R.
15,
25).
He stated that,
“A lot of times the fan might be very
high or the wind might be blowing different.
I noticed that when
the wind blows there’s different frequencies, what you call it.”
(R.
27).
He testified that he could hear the fan noise even in
the front yard.
(R.
13).
When asked about the nature of the
noise, Mr.
Zivoli appeared to say it made a fluctuating sound
like “Voo—voo—voo—voo”.
(R.
23).
When Mr.
Zivoli was asked by Mr. Kagay whether the problem
might actually be bad blood,
rather than actual inconvenience,
and that he was trying to get back at Mr. Householder, Mr.
Zivoli
responded,
“Well,
I’ll tell you what’s going on.
Let me go back
there.
When I first moved in I notified Michael Roger and I also
confronted him with the door being opened
(a back door) and then
I confronted Robert Householder....As a matter of fact,
I said
‘Please close the door, people are bothering us, you know,
drinking.
God knows what’s going on.
I’d like that door closed
for your sake and my sake’.”
(R.
16,
17).
Mr.
Zivoli stated that
Mr. Householder cursed him and that there was no further
communication, but that Mr.
Zivoli had begged him to work this
out.
(R.
17,
18).
Mr.
Zivoli further testified that he mailed two letters to
Mr. Householder asking him to work out the problem.
He stated
that he remembers the first letter well, because the fan noise
was “unbelievable”.
He was at his kitchen table with the window
open and could “hear everything”.
At about 9:30-10:00 pm, there
were a few people fighting and the police came.
In his letter,
which he read into the record, he complains about the noise,
but
also about trying to keep the neighborhood good and safe from all
kinds of pollution,
in this case noise pollution.
(R.
18—21).
Regarding the back door,
Mr. Zivoli again talked about the back
door even after being reminded that this was not the issue
(R.
29,
30,
76).
Later Mr.
Zivoli referred to a neighbor further
down getting robbed about two months earlier, but in answer to a
police inquiry, he told them he didn’t hear anything because the
fan was on all night.
(R.
54-55).
At another point, Mr.
Zivoli
appeared to be bothered by another noise; he asked Mr.
Householder whether the fan noise is responsible for his not
hearing the noise he makes when dumping garbage in the dumpster.
(Mr. Householder had testified that the door is now kept closed
except for a half hour when he is taking out the garbage.
(R.
28,
53))
~ The record is unclear as to whether the bedrooms are on the
first or second floor.
133—469
4
Mr.
Zivoli asked that the Board take official notice of PCB
88—171,
a case sent to him by Mr. Greg Zak of the Illinois
Environmental Protection Agency.
(Brainard v.
Hacian et.
al.
(April 27,
1989), PCB 88—171,
98 PCB 247).
Mr. Schecter, who also stated that he was formerly Director
of USEPA’s Technical Assistance Center for Region
5,
(R.
23),
testified both as to noise measurements he had made and his own
on—site observations.
His conclusions are summarized below.
He
performed two noise measurements,
in August and September,
1991,
during evening and nighttime hours.
He measured ambient noise
alone, ambient with the exhaust fan operating, and the impact
from a jet flyover, and compared them with the Board’s standards.
Regarding the August measurements, Mr. Schecter stated that with
the exhaust fan turned off, the existing ambient noise is up to
18 dB above nighttime noise limits and is above in
6 of 9 octave
bands, while the ambient corrected fan noise shows levels above
in
7 of the 9 octave bands.
Regarding the September
measurements: during evening hours, the ambient levels are above
the nighttime noise limits in 8 of 9 octave bands; the fan noise
levels are above in 6 of the 9 levels, and are lower that the
ambient levels in all but the 500 Hertz octave band.
The impact
of the aircraft flyover is 5-15 dB higher than the fan noise at
the various octave band frequencies.
The exhaust fan is 4—5 dB
above the Board’s daytime limits, while the ambient levels are
4
to
7 dB above
in 6 octive bands.
Mr. Schecter concluded that the
ambient noises are from the Multigraphics plant, and that other
business and residential ventilation units contribute as much to
the noise as the exhaust fan.
(Sept.
12 and 15,
1991 letters in
Resp.
Ex.
2, R.
31—41,
44—48,
50—73).
Apart from the measurements, Mr. Schecter testified that,
during the night of his September visit, he stood in the front
street at the end of Mr. Zivoli’s driveway, and then on the west
side of Arthur Avenue in front of Somebody’s; he believes that
the sound, which is particularly annoying because of its
discrete, fluctuating frequency comes not from the fan but from
the company across the street from the restaurant which has four
or five huge ventilators on top.
One would hear them until four
or five
in the morning, and that when the wind is from the east,
the noise level on Mr. Zivoli’s property goes up from all
sources.
Mr. Schecter suggested that this might explain why Mr.
Zivoli thought the exhaust fan might be on until four or five
in
the morning.
(R.
42—44,
60,
61,
69.).
Mr. Schecter also testified that when he and his assistant
were doing the measurements under4 the fan, they could plainly
speak to each other at the conversational level of his testimony.
(R. 48).
He also testified that,
although not performed,
it was
his “gut feeling” that
if his data were plotted on the speech
interference graphs generally recognized when surveying community
noise,
there wouldn’t be interference
in speech caused by the
133—470
5
fan,
“speaking near
it, meaning 25 feet or more back from it”.
(R.
49).
Mr. Schecter testified that while measuring he could
hear the fans, the airplanes,
and, while he couldn’t hear the
“horrible” discrete tones at ground level at the property line,
the discrete tone was “plainly audible on the tape” with the
microphone raised up in the air.
(R.
58).
Mr. Schecter further testified that the winds during his
measurements were either calm or a slight breeze, and that the
fan had only one speed
—
one on and off switch.
(R.
62, 63).
Mr. Householder testified that the exhaust fan is required
for food operations by city ordinance.
(R.
10).
He stated that
from his back door to the dumpster, about 8-10 feet, he hears the
fan and other noises, and over long periods of time it has never
bothered him, nor have the airplanes or the traffic.
Regarding
the fan noise when he is dumping the garbage, Mr. Householder
responded that he hears himself very well and carries on
conversations there all the time.
(R.
53).
Mr. Householder also testified that he has verification from
several witnesses that it was Zivoli who was cursing and who
threw rocks at the door.
He stated that several times he tried
to talk to Mr.
Zivoli and that it was a swearing match.
He
asserted that Mr.
Zivoli called the Village a couple of times and
they told Householder to just try to ignore Mr.
Zivoli.
Mr.
Householder asserted that in the five years he’s been there,
there were no complaints until Mr.
Zivoli moved in.
Mr. Zivoli
disputed the last statement.
(R.
75,
76).
Mr. Householder
testified that he had the .fan overhauled,
and that it was greased
but there was nothing wrong with it.
(R.
74,
75).
In a closing argument, Mr.
Zivoli stated that he was not
asking for “a condemnation or an operation”,
just asking for
relief from the Board.
He acknowleged Mr. Schecter’s noise
measurements and that “the surveyor said the noises are coming
from another source.”
He then stated,
“What I’m simply saying
here is that I’m seeking relief here for some kind of help
regarding the noise that’s bothering us and it makes our back
yards almost impossible to live.”
(R.
86—88).
The respondents did not make a closing argument.
Mr. Kagay
had concluded in his opening argument for the respondents that
the apartment buildings were a multi-residential buffer between
the commercial area and a single family residential area,
so he
thinks the owners should have known about that when buying their
buildings.
STATUTORY AND REGULATORY FRAMEWORK
This is a “noise nuisance” action pursuant to Section 24 of
the Act
(Ill.
Rev.
Stat.
1991,
ch.
111 1/2,
par.
1024)
and 35
1
‘33—47
I
6
Ill.
Adm. Code 900.102.
(Complaint at 12).
Section 24 of the Act
provides that “n)o
person shall emit beyond theboundaries 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).
Although noise measurements were introduced as evidence in
this case,
it is well-established that the numerical noise
standards set forth in Subtitle H of the Board’s regulations are
independent of,
and do not themselves dictate the outcome of,
a
nuisance complaint.
(Illinois Coal Operators Assoc.
v.
PCB,
59
Ill.2d 305,
319 N.E.
2d 782,
785
(1974); Annino v. Browning—
Ferris Industries of Illinois, PCB 87—139 at
9
(August 18,
1988);
Will County Environmental Network v. Gallagher Blacktop, PCB 89-
64 at 8
(January 11,
1990).)
The Board will accept as evidence
the noise level test results only with respect to a finding of an
unreasonable interference with the enjoyment of life.
(Ka-ii v.
R. Olson Manufacturing Co.,
Inc.,
PCB 80—46,
41 PCB 245
(April
16,
1981), aff’d’109 Ill. App.
3d 1168,
441 N.E. 2d 185).
We next note that,
in determining whether a violation has
occurred, the Board must take into consideration the five factors
listed in Section 33(c)
of the Act,
as well as other facts and
circumstances bearing upon a determination of unreasonable
interference., (Ill.
Rev.
Stat.
1991,
ch.
111 1/2,
par. 1033(c);
Wells Manufacturing Co.
v.
PCB,
383 N.E.
2d 148, 150—01 (1978);
Ferndale Heights Utilities Co.
v. PCB, 358 N.E.2d 1224 (1st Dist.
1976))
The five factors in Section 33(c) 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.
(Ill.
Rev. Stat.
1991,
ch.
111
1/2, par. 1033(c)).
BOARD DISCUSSION
In this case,
we are faced with the question as to whether
Mr.
Zivoli has carried his burden of identifying, and identifying
with sufficient specifity,
that it
is the exhaust fan noise that
is at the heart of his complaint.
This question has particular
I 33—472
7
relevance to the first “33(c)” factor,
the character and degree
of injury.
Mr.
Zivoli did call the fan noise “annoying” and
“irritating”.
He did testify that his children and he cannot
enjoy his patio except in the morning when the exhaust fan is
off, after which they go inside, close the windows and turn on
the air conditioning.
We are persuaded here that the fan noise
does emanate beyond the boundary line at levels sufficient to
affect Mr. Zivoli’s enjoyment.
The record establishes, though,
that the condition exists for limited periods during the day,
depending on wind speed and direction.
Mr.
Zivoli also testified
that when parking cars he cannot carry on a conversation.
Here,
we believe that his testimony was persuasively contested by the
respondents insofar as it relates to the fan.
It
is of particular concern that Mr. Zivoli had difficulty
clearly identifying sounds that were irritating and annoying him,
certainly in the evening and at night.
He first alleged that the
fan was running all the time, then stated that he thought it was
on until four or five a.m., and then did not dispute Mr.
Householder’s statement that the fan went on at eleven a.m. and
went off at midnight.
He said that the fan ran at different
speeds, which it didn’t, and that he could hear it from the
street in front.
When asked directly whether bad blood, rather
than actual inconvenience, was the problem, his response focused
not on the fan noise but on sights and sounds from an open door,
an issue he kept returning to during the hearing even after being
cautioned not to do so and even though the offending open door
was now closed.
It was Mr.
Zivoli’s repeated focus on issues not
before us that raises a question as to the role these issues
played in raising the level of Mr. Zivoli’s distress about the
exhaust fan noise.
Also,
at hearing and in his closing argument,
he did not dispute Mr. Schecter’s testimony that the sound that
annoyed him was from another noise source.
Regarding the next two “33(c)” factors, Somebody’s is a
viable business concern whose operations have the approval of the
Village and is suitable to the area.
While there are mixed uses
in that portion of the Village,
Somebody’s is in a commercially
zoned area and appears to be only one of a number of businesses
in the area.
The record shows that Somebody’s was there before
Mr.
Zivoli moved in, although it is not as clear regarding the
co—complainant,
or how long the duplexes have been there.
The
record indicates that the building had a restaurant as a tenant
for many years.
Regarding “33(c)” factors four and five,
the record
is
devoid of evidence to show what can be done about the exhaust fan
noise.
All we have is that,
in response to Mr. Zivoli’s
complaints,
Mr. Householder had the fan overhauled and it was
found to be operating properly.
Beyond that, we decline to
I 33—473
8
speculate whether there are ways to reduce the fan noise,
and to
do so safely, given that it is an exhaust fan for an
establishment where food is cooked and is required by Village
ordinance.
Finally, the record contains no evidence regarding
subsequent compliance.
Based on the facts and circumstances and in light of the
Section 33(c)
factors, the Board finds that the exhaust fan noise
does not constitute an unreasonable interference with the
Complainants’ enjoyment of life and lawful activity in violation
of Section 24 of the Act and 35
Ill. Adm. Code 900.102.
Therefore,
the Board will dismiss this case.
This opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
For the foregoing reasons, having found no violation in this
matter, this case is hereby dismissed.
Section 41 of the Environmental Protection Act,
Ill.
Rev.
Stat.
1991,
ch.
111½, par.
1041,
provides for appeal of final
orders of the Board within 35 days.
The Rules of the Supreme
Court of Illinois establish filing requirements.
IT IS SO ORDERED.
B. Forcade dissented.
I, Dorothy N.
Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the above opinion and order was
adopted on the
~Z’-~
day of
Y7i
~--~
,
1992, by a
voteof
______.
(
~
~
Dorothy M. ~unn, Clerk
Illinois Pbllution Control Board
‘I
Regarding Mr. Zivoli’s request that the Board take notice
of PCB 88-171,
a noise case involving exhaust fans on a restaurant
in
Grafton,
Illinois,
the record
in
that case
is
significantly
different from that found here and does not
serve
to establish
precedence for the case here.
13 3—4
74
