ILLINOIS POLLUTION CONTROL BOARD
February 27,
1992
JAMES
W.
TURNER,
SR.,
)
)
Complainant,
)
V.
)
PCB 91—147
(Enforcement)
~IARK
EDMI,STON,
)
)
Respondent.
JAMES W. TURNER APPEARED PRO SE.
DPINION
AND
ORDER OF THE BOARD
(by R.C. Flemal):
This matter comes before the Board on the August 21,
1991
filing of a formal complaint filed by complainant James W.
rurner,
Sr.
(Turner)
against the respondent, Mark Edmiston
(Edmiston), pursuant to 31(b)
of the Environmental Protection Act
(Act).
‘(Ill. Rev. Stat.
1991,
ch.
111 1/2,
par. 1031(b)).
rurner alleges that the noise emitted from Edmiston’s property
Linreasonably interferes with complainant’s enjoyment of life and
Lawful activity.
(Section 24 of the Act;
35 Ill. Adm. Code
~00.102.)
Throughout this matter, although well-apprised of the nature
Df
the instant allegations through the service of .the complaint
~nd notification of hearing, Edmiston has made no appearance nor
nade any defense.
This failure to appear results in a default
finding pursuant to Section 103.220 of the Board’s procedural
rules.
Section 103.220 reads:
Failure of a party to appear on the date set for
hearing or failure to proceed as ordered by the Board
shall constitute a default.
The Board shall thereafter
enter such order as appropriate, as limited by the
pleadings and based upon the evidence introduced at
hearing.
(See also Peter v. Geneva Meat and Fish Market and Gary Pikulski
(March 22,
1990),
PCB 89-151,
109 PCB 531.)
The Board today
rinds that Edmiston violated Section 24
of the Act and 35 Ill.
~dm. Code 900.102, and orders Ethuiston to cease and desist from
further violations, as discussed below.
BACKGROUND
130—245
—2—
Kingsley Court1 is an area located in the City of Normal,
Illinois (the City or Normal).
The area is primarily
residential, although some restaurants are located on Kingsley
Street
(Exh.
B).
Six fraternities2 occupy houses or apartment
buildings in the Kingsley Court area.
Other student housing is
also located in the area.
The area also includes private
residences,
some of which are not occupied by students
(Exh.
B,
and Tr.
41,
47).
The record discloses that prior to the filing
of the complaint,
sounds emitted from student rental property
were the ,subject of town meetings and correspondence between
private home owners,
ISU, the police department,
and the City
since the time student housing was brought into the area in the
early 1980s
(Tr.
27, and see, generally,
testimony of Lucille
Miller,
Tr.
36—45).
Turner filed similar complaints against two other property
owners in the area
(PCB 91-147 and PCB 91-148).
Hearing was held
on all three complaints in Normal on October 23,
1991,
at which
members of the public attended.
Edmiston did not appear at
hearing.
Edmiston’s property is located at 711 Kingsley Court,
commonly known as Building #3.
The property is occupied by Sigma
Tau Ganuna fraternity
(Exh.
B;
Tr.
7).
APPLICABLE REGULATIONS
Title VI of the Act establishes procedures and standards for
noise control.
Section 23 of Title VI sets forth the
legislature’s purpose of preventing noise which causes a public
nuisance.
Section 24 of Title VI prohibits the emission beyond
one’s property of noise taht unreasonably interferes with another
person’s enjoyment of life or lawful activities.
The Board’s
authority to adopt noise regulations is found in Section 25.
Section 23 and 24 of Title VI provide as follows:
Section 23
The General Assembly finds that excessive
noise endangers physical and emotional health
and well-being, interferes with legitimate
business and recreational activities,
increases construction costs, depresses
property values, offends the senses, creates
1 Kingsley Court
was
formerly called Morgan
Court,
and
is
sometimes called by either name in the transcript.
2 The local university is Illinois State University
(ISU).
130—246
—3—
public nuisances, and in other respects
reduces the quality of our environment.
It is the purpose of this Title to prevent
noise which creates
a’ public nuisance.
Section 24
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.
The Board has implemented these sections of the Act in two
ways.
First,
the Board has adopted specific numerical
limitations on the characteristics of sound that may be
transmitted from source to receiver.
As no numerical test data
were presented in this matter, those portions of the regulations
are not at issue.
The second method of implementing the noise
provisions of the Act are found in 35 Ill. Adm. Code 900.101 and
900.102.
Section 900.101 Definitions
Noise pollution:
the emission of sound that
unreasonably interferes with the enjoyment of
life or with any lawful business or activity.
Section 900.102 Prohibition of Noise
Pollution
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 Illinois Environmental Protection
Act,
so as to cause noise pollution in
Illinois, or so as to violate any provision
of this Chapter.
In effect,
these two sections adopt a regulatory public nuisance
provision for noise control using the statutory phrase
“unreasonable interference with the enjoyment of life or with any
lawful business or activity” as the standard.
The pleadings,
testimony and exhibits of the complainant, regarding noise, are
130—247
—4—
founded in this public nuisance theory, rather than in terms of
noise levels which exceed specific sound emissions levels3.
Section 900.101 and 900.102 were given judicial
interpretation in the case of Ferndale Heights Utilities Company
v. Illinois Pollution Control Board and Illinois Environmental
Protection Agency (1st Dist.
1976), 41 Ill.App.3d 962, 358 N.E.2d
1224.
In that case, the appellate court held the regulatory
language to be constitutional since sufficient standards could be
compreher~dedfrom reading Section 24, the Board’s regulations,
and the guidelines for enforcement cases found in Section 33(c)
of the Act.
In discussing whether Section 900.102 is contrary
to,
the terms of the Act, the Court found nothing in the Act to
preclude prosecution of noise pollution under the rule.
The
Court affirmed the Board’s finding of unreasonable interference
with the enjoyment of life, in light of adequate testimony.
describing the noise; explaining the type of severity of the
interference caused by the noise; and indicating the frequency
and duration of the interference.
Despite conflicting testimony,
the Court upheld the Board’s finding that the interference was
unreasonable.
The Board has adopted the Ferndale court’s approach to noise
pollution in cases that involve unreasonable interference, rather
than numeric limitations.
In a 1985 case finding a violation of
Section 24 of the Act and of Section 900.102 of the Board’s
rules, the Board reached this conclusion:
This testimony meets the Ferndale standard of providing
a description of the noise, explaining the type and
severity of interference caused by the noise
(sleep
interruption)
and providing information on the
frequency and duration of the interference.
This type
of testimony must be provided in any proceeding for the
~ Noise
enforcement
cases
previously decided
by the
Board
include:
Kali v. R. Olson Mfg. Co.,
Inc.
(1981) PCB 80—46,
aff’d,
(1982), 109 Ill. App. 3d 1168, 441 N.E.2d 188; Citizens of Burbank
v. Clairmont Transfer Co.
(1986), PCB 84-125; John W. Eirlich v.
John Smith
(1987),
PCB 85-4;
Thomas
& Lisa Annino
V.
Browning-
Ferris Industries
(1988) PCB 97—l39;.Anthony Kochanski
V.
Hinsdale
Golf Club (1989), PCB 88—16, rev’d,
(1990), 197 Ill. App.
3d 634,
555 NE.2d 31; William Brainerd v.
Donna Hagen et al.
(1989), PCB
88-171; Brian J. Peter v. Geneva Meat and Fish Market
(1990), PCB
89—151;
Will, County
Environmental
Network
v.
Gallagher
Asphalt
(1990), PCB 89-64; Kvatsak v. St. Michael’s Lutheran Church (1990),
PCB 89-182; Zivoli v. Prospect Dive and Sport Shop (1991), PCB 89-
205; Village of Matteson v. World Music Theatre (1991), PCB 90—146;
Christianson
v.
American
Milling
(Nov.
21,
1991)
PCB
90-59;
Zarlencia v. Bloomingdale Partners
(May
9,
1991 and February 27,
1992), PCB 89—169.
130—248
—5—
Board to make a finding regarding interference with the
enjoyment of life.
Based on the above—cited evidence,, the Board finds that
noises emanating from Overnite’s facility, specifically
from vehicle movement, maintenance, horns and the
public address system, are causing interference with
the ,sleep and normal leisure time activities of
adjacent residents.
Further, the Board finds this
interference is frequent and severe.
Citizens of Burbank v. Overnite Trucking (1985), PCB
84—124,
65 PCB 131,
136,
138.
Section 33(c) Factors
As the Ferndale court notes,
in order to make a
determination concerning the reasonableness of the noise
emissions,
the Board must consider the statutory factors found in
Section 33(c)
of the Act.
That section provides as follows:
In making its orders and determinations,
the Board
shall take into consideration all the facts and
circumstances bearing upon the reasonableness of the
emissions, discharges,
or deposits involved including,’
but not limited to:
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 or priority of location in
the area involved;
4.
the technical practicability and economic
reasonableness of reducing or eliminating the
emissions,
discharges or deposits resulting from
such pollution source; and
5.
any subsequent compliance.
Section 33(c)
of the Act.
130—249
—6—
These factors guide the Board in reaching a decision on
whether or not noise emissions rise to the level of noise
pollution, which, by definition, unreasonably interfere with the
enjoyment of life, and which
is. proscribed by the Act and
regulations.
The Illinois courts have held that the
reasonableness of the interference with life and property must be
determined by the Board by reference to these statutory criteria.
Wells Manufacturing Company v. Pollution Control Board
(1978),
73
Ill.2d 225,
383 N.E. 2d 148; Mystic Tape,
Div.
o.f Borden,
Inc.
v.
Pollution Control Board
(1975), 60 Ill.2d 330, 328 N.E.2d
5;
Incinera’t~or. Inc.
v. Pollution Control Board
(1974), 59 Ill.2d
290,
319 N.E.
2d 794; City of Moninouth v.
Pollution Control Board
(1974),
57 Ill.2d 482,
313 N.E.2d 161.
However, complainants are
not required to introduce evidence on each of these points.
Processing
& Books v. Pollution Control Board
(1976),
64 Ill.2d
68,
351 N.E.2d 865.
COMPLAINT
The complaint alleges that loud music, amplified music,
and
“loud hollering” that occurs during parties held by the
fraternity occupant constitutes noise that interferes with. the
complainant’s enjoyment of life and lawful activity.
The
complaint alleges that the noise emitted mainly occurs during the
school year “between 10 p.m. to well after midnight” and occurs
at least several times during the week and on all weekend days.
The complaint further alleges that the noise has occurred since
1985 to the present (compl., pars.
4_74).
Specific dates
included in the complaint and attachments pertaining to. the
Building #3 site are April
5,
1986, October 12,
1985, April
19,
1986, May 7,
1986,
August 12,
1987, April 27,
1991, April 18,
1991, May 9,
1991,
and July 13,
1991.
Noises included loud
music,
shouting, and screaming; times ranged from late evening to
past 1:25 a.m.
The complaint alleges that Turner and his family have
suffered ill effects as a result of the noise.
These include
hypertension, loss of sleep due to noise occurrences at night,
inability to hear at normal levels, diminishing’ of the quality of
life and environment, and the sale of neighbors’ homes at a loss
(compl. par 8.)
The complaint and some testimony. at hearing discuss. other
allegations associated with the parties, such as litter, public
urination,
and property damage
(Tr.
65,
78;
compl., par.
4).
These allegations do not pertain to the noise regulations, any
other regulations of the Board,
or provisions of the Act.
Accordingly, the Board strikes all information in the record that
4citations to the complaint are noted as:
compl.,
par.
X.
130—250
—7—
discusses matters over which the Board does not have jurisdiction
to determine.
HEARING
In support of his allegations, Turner presented several
witnesses at hearing.
Since the three complaints filed were
consolidated for hearing, testimony was presented by witnesses on
all the buildings involved.
This discussion includes only that
testimony, necessary to a discussion of the Building #3 site.
O.V.
Lancaster testified that he and his wife bought their
home at 701 Kingsley in 1972.
He stated that the area was
“peaceful and quiet” until the “early 1980s” when nearby vacant
land was developed with the addition of four three-story student
living houses occupied by fraternities (referred to as buildings
1,
2,
3, and 4 or by lot number), and the conversion of some
other property to a fraternity house
(known as 904 Hovey Avenue)
(Tr.
61).
Lancaster kept a log of occurrences of “party noise”.
His
testimony includes references to the Building #3 site, and
includes loud shouting, drum noise, and amplified music occurring
on:
10/12/85
1:10 a.m.
(unable to sleep because of
loud stereo music)
9/9/91
9:00 p.m.
(loud shouting, drum beats,
rock music, called police)
8/29/91
12:30 a.m.
(awakened from sleep from
drum noises)
Lancaster stated that he reported his concerns to local
authorities, explaining that his sleep was “continuously
disturbed by loud screaming,
shouting, thumping drums and/or
extremely amplified music
——
either live or recorded.
Each
frequently lasting until the early hours of the morning and often
several nights in the course of a week.”
(Tr.
71-72.)
Ms.
Buffey Overby testified that she is a full—time Illinois
State University student, and that she and her husband have lived
at 706 Osage street since August 1990.
She stated that she needs
to study and that the problem is continuous.
She stated that
“the noise coming from Kingsley Court sometimes beginning
Wednesday through Saturday is so loud in her
house that
she
is) not able to study there”.
(Tr.
85.)
Ms. Elizabeth Chambers testified that she and her family
moved from 709 Kingsley because they were not sleeping, and that
the noise was “unbelievable”
(Tr.
91).
She stated that she moved
130—25 1
—8—
approximately seven years ago, having stayed in the house on
Kingsley one year after the students moved in the area.
She
stated that Sigma Nu fraternity (occupant of the 904 Hovey Avenue
site), had been in the area two years before other fraternities
moved in.
She stated that the Sigma Nu fraternity by itself was
not all that bad, but that other fraternities were directly
behind their property.
(Tr. 91-93).
Ms. Mildred Moore testified that a letter was sent to
neighbor~of Kingsley Court from the fraternities Greek
specialist on November 13, 1990,
stating that the fraternities
understand the extent of the problem and are “interested and
ready to do something to help alleviate” the neighbor’s concerns
(Tr. 97).
She testified concerning party noise and loud music
that occurred after the November 13 letter was sent:
Date and time
Location
Type of Sounds
11/14/90 12:00 midnight
KC5 area
very loud music
11/15/90
KC area
very loud music
10 p.m.
-
past 12 midnight
11/17/90
KC area
very loud music
10 p.m.
-
2:30 a.m.
& drum beating
11/19/90
KC area
loud drums
to 2:15 a.m.
11/20/90
KC area
very loud music
11 p.m.
-
past 12 midnight.
11/27/90
KC area
very loud music
until after
2 a.m.
11/28/90
11/29/90
KC area
very loud music
until
3 a.m.
12/1/90
KC area
noise unbearable
past 1:30 a.m.
1/19/91
Building #1
very loud music
past 11 p.m.
1/23/91
Second Meeting With Neighbors
~Kingsley Court
130—252
—9—
1/26/91
Building #1
very loud music
past 12 midnight
2/2/91
KC area
very loud music
past 12 midnight
2/9/91
KC area
very loud music
&
10:30 p.m.
—
2:30 a.m.
center court
fireworks
2/11/91
Third Meeting With Neighbors
2/25
& 16/91
not given
loud noise
& music
at night
2/21/91
Building #3
yelling, partying,
&
after 12 midnight
noise
2/22/91
Building #1
very loud--rest and
past 12 midnight
sleep impossible
2/23/91
Building #1
very loud music
&
continuing
noise
2/23/91
Fourth Meeting With Neighbors
Ms. Moore described the effect of the sounds on herself and the
neighbors:
Noise unbearable.
***
The noise has continued.
Disrupting the neighbors peace and rest.
There are
families who have ill members in their homes.
There
are workers who need to get up early to go to work.
There are small children who do not need their rest
disrupted.
***
This is intolerable.
***
Rest and
sleep is impossible
(sic).
(Tr. 96—99.)
Mr. Norman Anderson testified that he lives at 703 Kingsley.
He testified that they have “put up with a lot of this noise for
years”
(Tr.
101).
He also stated that the “noise
is so loud that
it breathes through the walls of your house and there is no way
to get away from it
***“
(Tr. 101—02).
DISCUSSION
Before beginning its evaluation, the Board observes that
some of the testimony details noise complaints concerning the
Kingsley Court area in general without naming a specific building
or buildings from which the noise was emanating.
The record is
clear that sleep and rest were regularly disturbed and that the
inability to carry on activities,
such as studying, occurred due
130—253
—10—
to student parties in the area.
However,
the general nature of
some of the evidence presents a problem of proof of violation,
because the complaints are brought against specific individuals
and each of the buildings and properties are individually owned.
Irrespective of the general nature of some of the testimony, the
Board finds that the record also contains occurrences where the
complaint and witnesses identified specific buildings from which
the sounds emanated.
The ,testimony at hearing establishes that the sounds emitted
from the Building #3 property have caused interference with the
complainant’s enjoyment of life and lawful activities.
The
witnesses from the Kingsley Court area consistently described ,the
loud playing of music, drum beating, and loud shouting that
occurred most often until well past 12:00 midnight.
The
witnesses also testified that these sounds frequently interfered
with sleep,
studying, and normal enjoyment of life.
Having found
that the sounds have interfered with Turner’s enjoyment of life
and lawful activity, the next issue is whether the interference
is unreasonable.
As stated above,
sounds do not violate the Act
or Board regulations unless they cause an unreasonable
interference with the enjoyment of life or lawful business
activity.
The reasonableness of the noise must be determined in
consideration of factors set forth in Section 33(c)
of the Act.
Therefore, the Board will proceed with its consideration of
the five statutory criteria of Section 33(c)
in reaching a
determination on whether the sounds emitted from Building #3
unreasonably interfere with life and lawful business activities.
Section 33(c) Analysis
Section 33(c)(1) directs the Board to consider the character
of the interference caused by the noise emissions from Building
#3.
The issue here is whether the noise substantially and
frequently interferes with the use and enjoyment of life and
property.
As regards Building #3, the Board finds that the record shows
thirteen separate instances where Building #3 was specifically
identified as the source of some or all of the sounds emitted.
The record also contains testimony that the noise emanating from
the Building #3 site disturbed the rest and sleep of Turner and
other residents.
The Board finds that this interference goes
beyond trifling interference, petty annoyance,
or minor
discomfort.
The Board does not find evidence that the
hypertension, as alleged in the complaint, occurred as a result
of the noise.
Likewise, no evidence was presented that property
values were diminished as a result of the noise, although one
person testified that her family moved from the area as a result
of the noise.
However, based upon the record, the Board finds
that the noise emissions from Building #3 are frequent and severe
130—254
—11—
and constitute a substantial interference with the enjoyment of
life and property of the complainant.
In addition,
in review of
the information on attempts to stop the noise that were to no
avail throughout the years,
and the description of noise
occurrences contained in the record, the Board finds that the
noise problem is continuous as alleged.
Concerning the second of the Section 33(c)
factors, the
Board finds that the Building #3 site has social value as a
residence for a social fraternity.
However, that social value is
significantly reduced by the negative impact of the noise
emissions from the property to the surrounding community.
The third Section 33(c)
factor concerns the suitability of
the pollution source to the area in which it is located and
priority of location.
There is no evidence in the record that
the site does not comply with current zoning uses.
The Board
finds that the Building #3 site is suitable for the area in which
it is located if noise problems can be reduced to acceptable
levels,
so that the impact no longer negatively affects
surrounding property.
On priority of location, the Board finds that the record
is
clear that some of the neighbors of Building
#3 were there first.
Building #3 was constructed or converted for use by the
fraternity in the 1980’s.
The record indicates that the
residents of the houses generally have priority of location over
the current residents of Building #3.
Concerning the fourth of the Section 33(c)
factors, the
Board finds that there are technically feasible and economically
reasonable methods of making some reductions in noise levels such
as turning the sound down or redirecting stereo speakers, holding
live concerts in another location such as a theater with proper
noise reduction devices, or limiting the time and duration of
parties.
Regarding the fifth Section 33(c)
factor, the record shows
that the Building
#3 site has not come into compliance.
Although
some methods of noise reduction may have been discussed at
meetings between the neighbors, residents,
and ISU and city.
officials, no acceptable solution has been reached and the noise
continues to occur at the same frequency and intensity.
Based upon evaluation of the pleadings,
the evidence
introduced at hearing, and the factors of Section 33(c),
the
Board finds that the noise emissions from Building #3
unreasonably interfere with the enjoyment of life of Turner and
his neighbors.
The Board further finds that Edmiston caused or
allowed the noise emissions in violation of 35 Ill.
Adm. Code
900.102 as alleged in the complaint.
130—255
—12—
REMEDY
Turner requests as relief that the Board rule that:
the noise pollution be stopped and a mandate be served
upon the city manager, the Police Chief and all of
their agents to enforce the noise pollution laws of the
State of Illinois,
as well as the landlord described as
the respondent in this formal complaint (sic).
compl. par.
9
The Board construes this as a request for a cease and desist
order against the respondent.
Turner failed to name the City or
police department as parties, and even if named, the Board is not
empowered under the Environmental Protection Act to require that
an entity enforce the noise pollution regulations of the State of
Illinois.
Having found Edmiston in violation, the Board will
accordingly order Edmiston to cease and desist from allowing the
noise emissions.
In addition, the Board has set out that
technically feasible and economically reasonable means of
reduction of the noise emissions exist.
The Board notes that it
cannot determine on the basis of the facts before it which of the
several technically practicable strategies and their many
variations would produce the most effective compliance
alternative for Edmiston.
Accordingly the Board will direct
Edmiston to take what he views as the most effective alternative,
with the only proviso that the choice effectuate compliance.
The Board will today levy no monetary penalty against
Edmiston, but notes that pursuant to Section 42 of the Act, the
Board is empowered to levy a civil penalty up to $50,000 per
violation and an additional penalty up to $10,000 for each day
the violation continues.
Should future violations be found
concerning the site, penalties may be imposed.
This opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
1.
The Board finds that on October 12,
1985; February 21,
1991; September 9,
1991; and August 29,
1991, Mark
Edmiston (Edmiston) violated Section 24 of the Illinois
Environmental Protection Act and 35 Ill. Adm. Code
900.102.
2.
Edmiston is hereby ordered to take necessary steps to
comply with Section 24 of the Act and 35 Ill Adm. Code
900.102 at all times, and to cease and desist from
further violations of the Act and Board regulations.
130—256
—13—
IT IS SO ORDERED.
Board Members J. Anderson, J.
T. Meyer,
and B. Forcade
concurred.
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.
I, Dorothy M.
Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certi.~y.that the above Opin.i~pnand Order was
adopted on the
___________
day of
_________________,
1992,
by
avoteof
,:
.
(
Dorothy M. Günn,
Clerk
Illinois Pollution Control Board
130—257
