ILLINOIS POLLUTION CONTROL
BOARD
February 25,
1993
THOMAS SNEED and
BARBARA
)
SNEED,
)
Petitioners,
)
v.
)
PCB 91—183
(Enforcement)
)
)
FRANK
FARRAR, FIRST
BANK
)
& TRUST COMPANY,
)
)
Respondents.
THOMAS AND
BARBARA
SNEED
APPEARED
PRO SE;
JOHN
WENDLER APPEARED ON
BEHALF
OF RESPONDENTS.
OPINION
AND
ORDER OF THE BOARD
(by 3. Theodore Meyer):
This matter is before the Board on a complaint filed October
3,
1991, by Thomas and Barbara Sneed
(“petitioners”,
“the Sneeds”
or “complainants”).
The complaint alleges that respondents have
violated section 24 of the Environmental Protection Act (415 ILCS
5/1
~,
gig.)
(“the Act”)1 and section 900.102 of the Board’s
regulations
(35 Ill. Adm. Code 900.102)
in the operation of their
air conditioning
unite
The complaint alleges a “nuisance”
violation.
Hearings were held in Cairo,
Illinois, on June 11,
1992,
and July 24,
1992.
No members of the public attended the
hearings.
The
complaint alleges that noise from the air-conditioning
unit decreases the value of the apartments
(“the building” or
“the apartments” or “the Sneed building”).
The Sneeds claim that
they are unable to rent the apartments,
or in the alternative,
they are only able to rent to “bad” tenants.
(Tr. at 292.)
FACTS
First Bank and Trust (“First
Bank”
or “bank”), located in
the City of Cairo, Alexander County,
Illinois, has been at its
current location for over forty years.
(Tr. at 199.)
The air
conditioning unit is situated at the rear of the bank, where it
has been located since 1970.
The unit was replaced in 1991.
1
The Act was previously codified at 1991,
I11.Rev.Stat.
ch.
111 1/2 par.
1001 ~
seq.
OI39-O~8I
2
(u.)
Thomas and Barbara Sneed bought the building next to the
bank on March 7,
1980.
(Tr. at 157.)
The Sneeds’ building is a
two-story structure with a beauty shop and electronic repair
business on the first floor and two apartments on the second
floor.
The rear apartment faces out over the back of the bank
where the air conditioning unit is located.
The Sneeds do not
use the building as their personal residence.
The bank and the Sneeds’ building are located in a downtown
commercial area of mixed business and residential buildings.
It
is common for buildings to have businesses on the ground floor
and residences on the upper floors.
(Tr. at 165—174.)
Cairo,
Illinois,
is an economically depressed area with approximately
forty percent of the population living below the poverty line.
(Exh.
BB)
The average monthly rent in Cairo is $152 and units
often stay vacant for six months or more.
(Exh.
BB)
PRELIMINARY
MATTERS
At
various times throughout the proceeding, respondents have
challenged the jurisdiction of the Board and the validity of the
proceedings.
They have raised two objections concerning proper
service and one objection concerning ownership.
The objections
were raised in respondents’ October 31,
1991,
joint answer and
motions to dismiss and were raised again throughout the
proceeding.
The objections are summarized as follows:
1.
Frank Farrar was not properly served because
neither he nor his authorized agent signed the
registered or certified mail receipt as required by 35
Ill. Adm. Code 103.123.
2.
Even if properly served, Frank Farrar is not a
proper party to this proceeding because he does not own
the premises upon which the air conditioning unit is
located.
3.
First Bank was not properly served because service
was attempted only upon Frank Farrar and he is not a
proper agent of the bank.
Facts
Mr. Sneed wrote to Mr. Farrar concerning the air conditioner
on three occasions prior to filing formal complaint.
(Exh.
1,2,4)
Unsatisfied with Mr. Farrar’s response, Mr. Sneed filed a formal
complaint with the Board on October
3, 1991.
Mr. Sneed sent
formal notice and a copy of the complaint by certified mail to
Mr. Farrar in South Dakota.
The return receipt was signed by a
“Laura Scott.”
(Exh.
7)
O~39-
01482
3
On October 16,
1991, the Board received a letter from “R.
Kipp Kreitzer, President” on First Bank and Trust stationary,
which stated “may
this letter serve as our response to the
complaint by Thomas
3.
Sneed.”
Mr. Kreitzer characterized the
complaint as frivolous,
but did not raise any jurisdictional
objections.
On October 17,
1991,
Mr. Farrar filed a letter with
the Board which stated “on
behalf of myself and First Bank and
Trust Company, please be advised that I received a copy of the
formal complaint by Thomas
3. Sneed.”
On October 31,
1991, the Board received respondents’ joint
answer, a motion to dismiss Frank Farrar, and a motion to dismiss
First Bank.
These documents raised the second and third
objections listed above.
The motion to dismiss Frank Farrar
states “Frank Farrar is not a proper party Respondent to this
proceeding in that Frank Farrar does not own the premises upon
which the air conditioning unit complained of is located.”
The
motion to dismiss First Bank states “First Bank
***
has never
been served with a notice and Complaint
***
Only the individual,
Frank Farrar ~
has been served.”
These arguments are repeated
in respondents’ joint answer.
The Board ruled on the motions to dismiss in a November 21,
1991 order.
The order stated that it appeared that respondents
were properly served.
However, the order continued
The Board finds that there are several issues in
controversy in this case including the issue of proper
service.
The Board believes that these issues should
be addressed more fully by the parties at a hearing on
the merits of the case.
Therefore, at this time, the
Board denies both motions to dismiss and accepts this
case for hearing.
In their April 27,
1992, amended joint answer and
affirmative defenses, respondents re-raised the second and third
objections.
They alleged that Frank Farrar was not a proper
party because he does not own the premises.
However, they did
not supply any supporting affidavit for this assertion.
In
addition, they asserted that the proceeding was invalid because
the bank was not properly served.
At the June 11,
1992, hearing, respondent’s attorney, Mr.
John Werldler, complained that Ms. Scott is not Mr. Farrar’s
authorized agent and therefore service was improper.
(Tr. at 73.)
Mr. Wendler did not offer any witnesses or affidavits to support
this assertion.
The record indicates that Ms.
Scott signed the
receipt for the complaint but that her signature does not appear
on any other document.
(Tr. at 76.)
This was the first and only
time respondents raised this objection.
0! 39-01483
4
Finally, in their post-hearing brief and closing argument,
respondents moved to dismiss Frank Farrar, stating “Respondent,
Frank
Farrar, should be dismissed from this action because of
jurisdiction.”
Respondents do not provide a rationale for this
motion and the subject is not addressed anywhere else in their
closing brief.
Discussion
Board regulations governing service of process are found in
35 Ill.
Mm.
Code 101.141,
101.243, and
103.123
which provide in
pertinent part as follows:
Section 101.141
A copy of all initial filings in any Board proceeding
shall be served upon all persons, required by this
Chapter to be served, or their registered agent.
35
Ill. Adm. Code 102 through 120 set forth more
specifically who must be served in any given type of
Board proceeding.
Service of all initial filings shall
be made personally, or by registered,
certified or
First Class mail,
or by messenger service.
However,
initial complaints in enforcement proceedings pursuant
to 35 Ill.
Adm.
Code 103 must be served personally, by
registered or certified mail, or by messenger service.
Section 101.243(b), (c)
b)
All motions challenging the jurisdiction of
the Board shall be filed prior to the filing
of any other document by the moving
participant or party,
unless the Board
determines that material prejudice will
result.
(emphasis added)
Such participant or
party will be allowed to appear specially for
the purpose of making such motion.
c)
A person may participate in a proceeding
without waiving any jurisdictional objection
if such objection is timely raised pursuant
to subsection (b).
Section 103.123
a)
A copy of the notice and complaint shall
either be served personally on the respondent
or his authorized agent,
or shall be served
by registered mail with return receipt signed
0139-014814
5
by the respondent or his authorized agent.
Proof shall be made by affidavit of the
person making the personal service, or by
properly executed registered or certified
mail receipt.
Proof of service of the notice
and complaint shall be filed with the Clerk
immediately upon completion of service.
We shall address each objection separately.
1.
Frank Farrar was not ~romerly served because
neither he nor his authorized agent signed the
reaistered or certified
mgi.
receipt as required by
section 103.123.
Pursuant to section 101.123, if a respondent wishes to
contest jurisdiction he must do so “prior to” the filing of any
document with the Board.
This is essentially a “special
appearance” provision which allows a party to challenge the
Board’s jurisdiction without submitting itself to the Board’s
jurisdiction.
Once an objection is made, the party may
participate in the proceeding while preserving the objection.
“Document” is defined in 35 Ill. Adm. Code 101.101 as a
“pleading, notice,
motion, affidavit, memorandum, brief,
petition, or other paper or combination of papers required or
permitted to be filed.”
The Board construes Mr. Farrar’s letter
of October
17, 1991,
as a “document” and notes
it was filed prior
to any challenge to the Board’s jurisdiction.
In addition, the
letter acknowledged that Mr. Farrar had received the formal
complaint.
We find that
Mr.
Farrar’s
October
17,
1991,
letter
is
a
“document”
as
contemplated
by
section
103.123
and
that
it was
filed prior to any objection to the Board’s jurisdiction.
Therefore, we find that respondent Frank Farrar has waived his
right to challenge jurisdiction due to improper service.
2.
Even if properly served, Frank Farrar is not a
proper party to this proceeding because he does not own
the premises upon which the air conditioning unit is
located.
35 Ill.
Adni.
Code 101.242(a) requires
that
“all
motions
shall state clearly the reasons for and grounds upon which the
motion is made and shall contain a concise statement of the
relief sought.
Facts asserted which are not of record in the
proceeding shall be supported bY affidavit.”
(emphasis added)
Mr. Farrar claims he is not an owner of the premises or the air
conditioning unit and therefore is not a proper party to this
0139-01485
6
proceeding.
However, Mr. Farrar fails to support this statement
either
by
affidavit,
testimony
at
hearing,
or
appropriate
document.
Thus,
Mr.
Farrar’s
claim
that
he
does
not
own
the
premises is unsupported by the record.
The Board finds that respondents’ motion to dismiss Frank
Farrar is defective as to the requirements of section 101.242(a).
The
facts underlying the motion are not contained in the record
and respondents failed to supply supporting affidavits.
Therefore, the motion to dismiss Mr. Farrar is denied.
3.
First Bank was not pro~erlvserved because service
was attempted only upon Frank Farrar and he is not a
proper agent of the bank.
As discussed above, pursuant to section 101.123,
if a
respondent wishes to challenge jurisdiction he must do so prior
to the filing of any document with the Board.
Because First
Bank’s October 16,
1991,
“response” was filed with the Board
prior to raising any jurisdictional objection, the Board finds
that all jurisdictional objections are waived.
In summary, the Board denies all three motions to dismiss
and finds that respondents Frank Farrar and First Bank and Trust
Company are proper parties to this proceeding and are properly
within the jurisdiction of the Board in this matter.
TESTIMONY
At
hearing,
complainants
presented
the
testimony
of
Mr.
Michael Rundles and Mr. Terry Franklin.
Mr. Rundles and Mr.
Franklin inquired into renting the Sneed apartments but
ultimately did not rent the apartments due to the noise of the
air conditioner.
Mr. Sneed testified on his own behalf.
Respondents presented eight people who testified that they had
rented from the Sneeds in the past.
Respondents also presented
expert witnesses in the areas of construction, real estate
appraisal, and noise and vibration.
In addition, Mr. Ralph
Taake,
Jr., a former employee of the bank testified for
respondents, as did Mrs. Sneed, who testified for respondents as
a hostile witness.
Petitioners’ primary complaint is that the noise from the
air conditioner decreases the value of their property by
deterring people from renting the apartments in their building.
The petition states “Our attempts to rent and keep rented the
apartments to no avail
(sic).
When apartments rented and air
conditioning unit turns on, they move.”
(Complaint at 3.)
At
hearing Mr. Sneed stated “They (the apartments)
have been in bad
shape because
I have had poor renters.
They are poor,
and that
0
39-01486
7
is part of my complaint,
in the original complaint, that it is
reduced in value.
The renters, there has not been a renter that
came in here today that paid all of the rent.”
(Tr.
at 288.)
The parties executed a stipulation of facts received by the
Board on May 18,
1992,
The parties stipulated that no income was
reported by the Sneeds on their income tax returns for the past
ten years with regard to the apartments
in the building at issue.
The parties also stipulated that apartments have not been rented
in the past ten years.
(Stip. at 2—5.)
The parties later amended
the agreement to reflect that the Sneeds had rented the
apartments to two families for a short time.
At hearing, Mr.
Sneed likened the sound of the air
conditioning unit to “an airplane engine
***
such as a Cub
***
(it
has a whining noise.
It is extremely loud” and it
is as
loud as a “jack hammer in a street breaking up the cement or
tar.”
(Tr. at 89-90.)
He said the air conditioning unit emits a
“sudden” noise that “comes at you all at once” and “if you are
sitting and talking to someone in that immediate area
***
there
is no way you can have a conversation.” (Tr. at 89-93.)
Mr.
Sneed also testified that the unit runs “seven days a week,
twenty four hours a day
*~*
it starts in April
(and)
***
most of
November
it
will
continue
to
run.”
(Tr.
at
94.)
Mr.
Sneed is
present at the apartment building only as needed, which he
described as one day a month on the average.
(Tr. at 300.)
Complainants’ witness, Michael Rundles, testified that he
had recently looked into renting one of the Sneed apartments.
He
looked at both apartments and concluded that the noise from the
air conditioner was “more noise than you would care to live
around
*~*
because I have children” and even with the storm
windows down,
the noise was “a little too extreme”.
(Tr. at 20-
23.)
Mr. Rundles testified that Mr.
Sneed was unwilling to rent
the apartments because “there was too much noise.”
(Tr.
at 25.)
On cross examination, Mr. Rundles admitted that he and Mr.
Sneed
had never discussed rent or utilities.
He stated that even given
the apartment’s apparent fire and safety code violations, he
would have rented the apartment but for the noise.
(Tr. at 39.)
Complainants’ witness Terry Franklin testified that he also
inquired into renting an apartment from Mr. Sneed.
Mr. Franklin
testified that Mr. Sneed was not willing to rent the apartment
due to concerns about the noise.
(Tr. at 41—42.)
On cross
examination, Mr. Franklin testified that he had never actually
been up in the apartments and had not heard the noise first-hand.
(Tr. at 47.)
On redirect, Mr. Franklin testified that there was
nothing unusually dangerous about the apartments
(for that price
range)
and that he would have been willing to make any necessary
repairs.
(Tr.
at 58.)
0139-01487
8
Respondents’ witness Pamela Ice testified that she had
rented the front apartment from June to September of 1985 and
paid $150 a month in rent.
(Tr. at 102—103.)
She moved out of
the apartment because the ceiling fell down three times while she
was there.
Neither she nor her children were bothered, annoyed
or disturbed in any way by noise from the air conditioner.
(Tr.
at 103.)
Charlotte Franklin testified that she rented the rear
apartment from the Sneeds beginning in 1985 and continued living
there for a year and a half.
She paid $110 or $125 a month in
rent.
(Tr. at 110.)
She testified that she left the apartment
because the “kitchen wall was falling in next to the stove and
the ceiling leaked” and that they “outgrew” the apartment.
(Tr.
at 111.)
She could not think of any way that the air-conditioner
bothered her or her children and that the unit never kept them
awake at night.
(Tr. at 112.)
Charlotte Franklin’s husband, Roy
Franklin, also testified.
He stated that neither his wife nor
his children suffered any ill effects from the noise of the air-
conditioner.
(Tr. at 125.)
They left because “the kitchen
plaster was coming off the walls.
It took an act of God to get a
light bulb up the stairs”.
(Tr. at 125.)
Darrall Gene Gore
testified that he lived in the rear apartment with the Franklins
and was not disturbed by the bank’s air-conditioner.
(Tr. at
238.)
Holly Harrell testified that she and her family rented the
front apartment in the Sneed building about ten years ago.
They
lived there for approximately a year and a half and paid $150 a
month in rent.
(Tr. at 115—116.)
She stated “I never really
noticed the air conditioner.
I never really noticed any noise.
That’s not why we left.”
(Tr. at 117.)
Holly Harrell’s husband,
Wesley Allen Harrell, testified that they moved out of the
apartment because they wanted a bigger place for their children.
He could not remember any problems, impact,
or interference from
the noise of the air conditioning unit.
(Tr. at 122.)
Tern
Lee Alexander testified that she and her family rented
the front apartment from the Sneeds in 1988 for about a year.
(Tr.
at
208.)
Rent
receipts
showed
they paid $125 to $150
a
month
in
rent.
(Exh.
MN,
LL,
KK)
They left the apartment because
“(we
could not keep the furnace lit in the winter because of
wind coming through there in the ceiling, and so we just could
not afford the utilities.
They were eating us up.
We had to
leave.”
(Tr. at 209.)
She testified that the Illinois Home
Weatherization Assistance Program,
a low income program, came in
and put up storm windows and would have insulated the ceiling if
Mr. Sneed would have repaired the roof.
(Tr. at 209-210.)
She
testified that the noise from the air-conditioner did not bother
her or impair her tenancy.
(Tr. at 213.)
Tern
Alexander’s
husband, James Lee Alexander,
testified that he could not hear
the bank’s air conditioner in their apartment,
although he could
0139-01488
9
hear it when he was out in the hall.
(Tr.
at 231.)
He testified
that he could hear the beauty shop’s air conditioning unit in
their apartment.
(Tr. at 231.)
Respondents called Mrs. Sneed as a hostile witness.
Mrs.
Sneed is present at the building four days a week during the day
to run her beauty shop.
(Tr. at 226.)
She testified that they
purchased the building for her beauty shop business and they had
not intended to rent the two second—floor apartments.
She stated
that she and her husband had not made any effort to rent the
apartments in the last ten years.
(Tn. at 221—224.)
However,
she
did recall renting the apartment on two occasions during that
time.
(Tr. at 224.)
In addition, she testified that she had
allowed her granddaughter to stay in the apartments “off and on”
for the last five years.
(Tr. at 221.)
She stated that the noise
from the air conditioning unit had remained unchanged in the last
ten years.
(Tr.
at 225.)
Charles Mattheson is an assistant professor in the School of
Engineering, Department of Construction, Southern Illinois
University in Edwardsville, Illinois.
Professor Mattheson
testified as an expert witness in the area of construction.
He
testified that he inspected the Sneeds’ apartments and observed
water markings, exposed wiring,
a lack of fan or window in the
bathroom, rusted hall light fixture,
large holes
in the plaster
work, general deterioration to ceilings and halls,
and a lack of
general service electrical outlets in the kitchen.
(Exh.
D)
He
reported fourteen conditions which he believed would constitute
fire or safety code violations
(Exh.
E) and he estimated the cost
of repair of the building at $3000.
(Exh.
D)
John H. Dowling testified as an expert witness in the area
of real estate appraisal.
He placed the fair market value of the
Sneed building at between $5200 and $6300.
(Tr. at 168.)
Upon
cross examination, Mr. Dowling conceded that if both apartments
were rented year round, and if they brought in $200 to $250 a
month each, the property would be worth more than he had earlier
estimated.
Under one formula, and assuming facts supplied by Mr.
Sneed, the value of the building could be as high as $95,100.
(Tr. at 194.)
Mr. Sneed later testified that all of the facts he
supplied Mr. Dowling were true.
(Tn. at 293-294.)
Mr. Ralph N. Taake, Jr.,
a
long time employee of the bank,
testified that he walked by the bank’s air-conditioning unit
nearly every day for forty-one years.
(Tr. at 199.)
He testified
that a new unit was installed in the last year or two and that he
had not noticed any difference in the noise level.
(u.)
Mr.
Taake admitted that he uses a hearing aid but contended that it
was very sensitive to sound.
(Tr. at 200.)
Mr. Taake did not
find the sound made by the unit “unreasonable”.
(Tn. at 203.)
0
39-01489
10
Mr. Kenneth
E. Tempelmeyer is a professor of mechanical
engineering at Southern Illinois University in Carbondale,
Illinois, and testified as an expert in the field of noise and
vibration.
Professor Tempelmeyer took measurements around the
air conditioning unit,
in the bank’s parking lot, in the
passageway between the Sneed building and the building next to
it, and in the front and rear Sneed apartments.
(Tr. at 246.)
The tests he performed are commonly used as a measurement of
noise as the human ear perceives it.
(Tr. at 248.)
He testified
that all measurements were made in accordance with 35 Ill.
Ada.
Code 900.103, which regulates measurement procedures.
(Exh.
CC)
Professor Tempelmeyer’s report showed the sound level
pressures in the apartments exceeded the noise standard found in
35 Ill. Ada. Code 901.103.
(Tn. at 272.)
35 Ill. Adm. Code
901.103 regulates the emission of sound from any property-line-
noise-source for certain classes of property.
According to
Professor Tempelmeyer, under the Illinois Guidelines For Noise,
conversational speech is also in excess of the standards found in
35 Ill. Ada. Code 901.103.
(Tr. at 276.)
Professor Tempelmeyer testified that the predominant noises
in the front apartment came from the beauty shop’s air
conditioner and street traffic.
(Tr. at 248.)
He termed the
noise from the bank’s air conditioner as “insignificant”
in the
front apartment.
(Tr. at 261.)
In the rear apartment,
he placed
the sound level meter approximately twelve inches from the window
in the kitchen.
(Tr. at 250.)
He selected this room because he
believed the noise was the loudest there and because Mr.
Sneed
requested that the test be performed there.
(a.)
Professor
Tempelmeyer estimated that the air conditioning unit was
approximately eight to ten feet from the window.
(Tr. at 251.)
For comparison purposes, Professor Tempelmeyer performed a
similar test in a hotel room at the Holiday Inn in Carbondale,
Illinois.
He performed the tests with the hotel room’s air
conditioner on “low” and “high.”
In the rear apartment, the
noise level was slightly above the noise level
in the hotel room
when the hotel’s air-conditioning unit was on low, and slightly
below the noise in the hotel room when the hotel unit was on
high.
(u.)
Professor Tempelmeyer described the area surrounding the air
conditioner as “acoustically complex” with “significant” echoing
reverberations.
(Tr. at 253—254.)
He refuted Mr. Sneed’s earlier
contention that the air conditioner is as loud as a jet engine or
a jack hammer.
(Tr. at 255.)
Professor Tempelmeyer thought the
windows were down when the tests were performed but could not
recall whether the storm windows were down.
(Tr. at 256.)
He
conceded that the sound in the room would be louder with the
windows open than with the windows closed.
(Tr. at 269.)
0139-01490
11
In addition to the testimony presented at
the
hearing,
the
parties entered an agreement into evidence concerning the
condition of the apartments.
The parties agreed that the
apartments violated numerous fire and safety code provisions and
that the front apartment was habitable but the rear apartment was
not.
Mr. Sneed asserted that he had intended to fix-up the
apartments before renting them.
(Tr. at 136-137.)
ANALYSIS
The complaint alleges a “nuisance” violation pursuant to
section 24 of the Act (415 ILCS 5/24) and section 900.102 of the
Board’s regulations
(35 Ill. Ada. Code 900.102).
The Board
construes the pleading as making two alternative claims.
First,
they claim they are unable to rent the apartments at all due to
the air conditioner’s noise; second, they claim they are only
able to rent to “bad” tenants due to the air conditioner’s noise.
Section 24 of the Act prohibits noise pollution as follows:
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.
The Board’s noise pollution control rules similarly prohibit
“nuisance noise”.
Board rule 900.102 provides as follows:
No person shall cause or allow the emission of sound beyond
the boundaries of his property
***
so as to cause noise
pollution in Illinois, or so as to violate any provision of
this Chapter.
35 Ill. Ada. Code 900.102
(1991).
The rules define “noise pollution” as “the emission of sound that
unreasonably interferes with the enjoyment of life or with any
lawful business or activity.”
35 Ill. Ada. Code 900.101
(1991).
Thus, under the Act, the respondents have violated the
nuisance noise provisions if the noise has unreasonably
interfered with the complainants’ enjoyment of life or with their
pursuit of any lawful business or activity.
Unreasonable
interference is more than an ability to distinguish sounds
attributable to a particular source.
It is also more than
“annoyance” due to the sounds, which is too subjective.
Rather,
the sounds must objectively effect the complainant’s life or
business activities.
See Kvatsak v. St. Michael’s Lutheran
0139-01491
12
Church,
(Aug.
30,
1990),
PCB
89—182,
114
PCB
765,
773
;
Kochanski
v. Hinsdale Golf Club,
(July 13,
1989), PCB 88—16,
101 PCB 11,
20—21, rev’d on other grounds, 197 Ill.App.3d 634,
555 N.E.2d 31
(2d Dist.
1990).
Unreasonable Interference
The Illinois Supreme Court has directed the Board to
consider the facts of a “nuisance” case in light of the factors
outlined by section 33(c) of the Act to determine
unreasonableness.
Wells Manufacturing Co.
v. PCB,
73 Ill.2d 226,
232—33,
383 N.E.2d 148, 150—51
(1978)
(“nuisance” air pollution;
first four factors only);
see Ferndale Heights Utilities,
44
I11.App.3d at 967—68,
358 N.E.2d at 1228.
The section 33(c)
factors are as follows:
(i)
the character and degree of injury to, or
interference with the protection of the health,
general welfare and physical property of the
people;
(ii)
the social and economic value of the
pollution source;
(iii)
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;
(iv)
the technical practicability and economic
reasonableness of reducing or eliminating the
emissions
***
resulting from such pollution
source; and
(v)
any subsequent compliance.
415 ILCS 5/33(c).
The Board now turns to consideration of each of these
factors in determining whether the interference was unreasonable.
Character and Degree of the In-iurv or Interference
Section 33(c)(1) directs the Board to consider the character
and degree of any interference caused by the noise emitted from
First Bank’s air conditioner.
The standard to which the Board
refers is whether the noise substantially and frequently
interferes with a lawful business activity, beyond minor trifling
annoyance or discomfort.
See,
e.g., Brainerd v. Haaen,
(April
27,
1989)
PCB 88-171,
98 PCB 247.
There is no loss of revenue
estimate in the record.
This information is especially important
where, as here, the injury complained of is purely economic.
13
Where
economic
injury
is the sole complaint,
loss of revenue
figures are an important aid in distinguishing between
“substantial” interference and “trifling” interference.
The parties stipulated that the Sneeds have not reported any
income on their tax returns for the past ten years with regard to
the apartments in the building at issue and that the apartments
have not been rented in the past ten years.
The Sneeds contend
that due to the noise from the air conditioner, they have been
unable to rent the apartments.
However, there is substantial
evidence in the record to dispute this claim.
Respondents
presented eight past tenants.
These tenants paid between $110
and $150 a month in rent.
Two families rented the apartments for
a year and a half.
Therefore, the Sneeds’ contention that they
have been unable to rent the apartments is undoubtedly false.
Moreover, the tenants testified that they moved out of the
apartment for a variety of reasons including leaking ceilings,
the size of the apartments and high utility bills.
Not a single
tenant reported being bothered or affected by the noise from the
bank’s air conditioner in any way.
In addition, Mrs. Sneed
testified that they have not tried to rent the apartments.
Professor Tempelmeyer testified that the noise from the
bank’s air conditioner was insignificant in the front apartment
and that other noises were dominant.
This was supported by one
witness who stated that he could not hear the bank’s air
conditioner, but could hear the beauty shop’s unit.
Professor
Tempelmeyer’s report indicated that the noise may constitute a
violation of 35 Ill. Ada. Code 901.103, the section establishing
numerical noise standards.
Evidence of a possible numerical
violation does not,
in itself, automatically result in a finding
of a nuisance violation.
Rather,
in determining a nuisance
violation,
the Board must examine the factors set out in section
33(c) of the Act.
In the alternative, the Sneeds claim they are only able to
rent to “bad” tenants.
At hearing Mr. Sneed stated “They
(the
apartments)
have been in bad shape because I have had poor
renters.
They are poor,
and that is part of my complaint,
in the
original complaint, that it is reduced in value.
The renters,
there has not been a renter that came in here today that paid all
of the rent.”
(Tr. at 288.)
In their closing brief, petitioners
state “the respondents have no way of knowing how many people
that did refuse to rent these apartments nor did I keep a
record.”
(Pet. at
1)
Other than Mr. Sneed’s testimony the
record contained no support for this contention.
Complainants presented two witnesses who would have rented
the apartments but for the noise.
These tenants appear to be
“good” tenants,
in that they have subsequently become homeowners
(Tr. at 29 and 52) and one witness stated he was willing to make
repairs to the apartment.
(Tr.
at 44.)
However,
it was Mr. Sneed
0139-01493
14
who ultimately decided he could not rent the apartment to the
first witness due to the noise.
The second witness did not go up
into the apartments and his knowledge of the noise was based
entirely on what Mr. Sneed told him.
Therefore, while the
testimony of these witnesses supports the contention that the
noise had some negative affect on potential tenants, their
testimony does not support a finding that the noise had a
substantial affect.
The evidence indicates that there are factors other than the
noise which act to discourage potential renters.
For instance,
the parties agree that the rear apartment is uninhabitable, the
front apartment needs substantial repair, and that the apartments
violate numerous fire and safety code provisions.
This is
consistent with the testimony of the past tenants who complained
that the walls and ceilings were falling in.
Furthermore, the
record indicates that due to the poor economic conditions in
Cairo, apartments such as the Sneeds’ often stay vacant for long
periods of time.
(Exh.
BB)
Social or Economic Value of the Source
With respect to section 33(c) (2), there is no evidence in
the record regarding the social and economic value of First Bank
or the air conditioning unit to the area.
Suitability or Unsuitability of the Source, Including Priority of
Location
With respect to section 33(c) (3),
it appears from the record
that the bank and the air conditioning unit are appropriately
located in the downtown business district.
Moreover, both the
bank and the air conditioning unit occupied the area prior to the
Sneeds’ acquisition of their building.
Technical Practicability and Economic Reasonableness of Control
The focus of the section 33(c) (4) inquiry into the technical
practicability and economic reasonableness of control is what can
be done about the purportedly offensive sounds.
The record
offers no information regarding the technical feasibility or
economic reasonableness of controlling the noise of the air
conditioning unit.
Subsequent Compliance
Section 33(c) (5)
involves the issue of subsequent
compliance.
The record does not suggest that the alleged
0139-014914
15
violation has been cured,
and therefore, this factor is
inapplicable.
CONCLUSION
In light of the evidence presented in the record and in
consideration of section 33(c)
of the Act, the Board finds that
the character and degree of injury to, or interference with, the
Sneeds’ physical property is not unreasonable.
The interference
in this case,
if it exists at all, is not significant.
The
evidence directly contradicts petitioners’ claim that they have
been unable to rent their apartments due to noise from the air
conditioning unit.
The record indicates that at least eight
people have rented the Sneeds’ apartments and that none of these
tenants were disturbed by the noise from the air conditioning
unit.
In addition, even if the noise from the air conditioning
unit was eliminated,
it is unlikely that the Sneeds would be able
to rent their apartments year round.
The parties agree that the
rear Sneed apartment is currently uninhabitable and the front
apartment would require substantial work before it could be
rented.
Moreover, Cairo apartments typically remain vacant on
the average of six months a year.
Lastly,
section
33
(C)
(3) ‘s
focus on the suitability of the alleged pollution source to its
locale and priority of location does not support a finding of a
violation given that both the bank and the air conditioning unit
occupied the area prior to the Sneeds’ acquisition of their
building.
Therefore,
First Bank and Trust Company and Frank Farrar are
not in violation of section 24 of the Act,
415 ILCS 5/24, or of
35 Ill. Ada. Code 900.102.
This opinion constitutes the Board’s finding of fact and
conclusions of law in this matter.
ORDER
For the foregoing reasons, the Board finds that respondents
First Bank and Trust Company and Frank Farrar are not in
violation of section 24 of the Environmental Protection Act and
of 35 Ill. Ada. Code 900.102.
This matter is dismissed.
IT IS SO ORDERED.
Board Member B. Forcade dissented.
Section 41 of the Environmental Protection Act, 415 ILCS
5/41, provides for the appeal of final orders of the Board within
0139-01495
16
35 days.
The rules of the Supreme Court of Illinois establish
filing requirements.
(But see also 35 Ill.
Ada. Code 101.246,
Motions for Reconsideration,
and Castenada
V.
Illinois Human
Rights Commission
(1989), 132 Ill.2d 304,
547 N.E.2d 437.)
I, Dorothy N. Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certify that the above opinion and order was
adopted on the
~
day of ______________________,
1993, by a vote of
5/
~
~
Dorothy M. ~nn,
Clerk
Illinois Pollution Control Board
0139-01496
