ILLINOIS POLLUTION CONTROL BOARD
May 9,
1991
JOSEPH
B.
STRATTON, and
)
PAMELA
J.
STRATTON,
)
Complainants,
PCB 90—108
v.
)
(Enforcement)
CHARLES M. ROCK,
and LITTLE
CAESAR’S PIZZA,
Respondents.
MR. JOSEPH B. STRATTON AND MRS.
PAMELA
J. STRATTON APPEARED PRO SE;
MR.
CHARLES
M.
ROCK,
ESQ.,
APPEARED
ON
BEHALF
OF
RESPONDENT,
CHARLES N.
ROCK; AND
MR.
CHARLES
GVOZDICH
APPEARED
ON
BEHALF
OF
RESPONDENT,
LITTLE
CAESAR’S PIZZA.
OPINION AND ORDER OF THE BOARD BY
(J.
D.
Duinelle):
This matter comes before the Board on a complaint filed on
June 13,
1990,
by Joseph and Pamela Stratton
(“Complainants”)
of
Morton,
Illinois, against Charles N. Rock and Little Caesar’s
Pizza
(“Respondents”).
Complainants allege that a compressor
unit and fan unit on the roof of the mall next door are in
violation of the noise pollution provisions of the Illinois
Environmental Protection Act
(“Act”) and Board regulations.
Hearing was held on August 30,
1990 in Pekin,
Tazewell
County,
Illinois.
Complainants presented three witnesses,
including themselves and Mr. Gregory Zak of the Illinois
Environmental Protection Agency
(hereinafter. “Agency”).
Respondents presented two witnesses,
Mr. Tim Shea and Mr.
Gvozdich, owner of Little Caesar’s.
No post—hearing briefs were
submitted.
Complainants allege violations of Section
24
of the Act and
Section 900.102 of the Board’s regulations.
The applicable
regulations are stated below.
Section 24:
No person shall emit beyond the boundaries
of his property any noise which unreasonably interferes
with the enjoyment of life or with any lawful business
or activity,
so as to violate any regulations or
standard adopted by the Board under this Act.
Ill.
Rev.
Stat.
ch.
111 1/2, para.
1024
(1989).
122—6 7
2
Section 900.102:
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.
35 Ill. Adm.
Code 900.102.
Section 900.101:
Noise Pollution: the emission of
sound that unreasonably interferes with the enjoyment
of life or with any lawful business or activity.
35
Ill.
Adm.
Code 900.101.
*
*
*
Birchwood Plaza
is
a mini-mall
located on property
immediately adjacent to Complainants and owned by the
corporation,
Charles Rock Associates,
Inc.1
The back of the
mall faces the east side of Complainants’ house and runs the
length of the Complainants’ property.
The Complainants’ property
is the only property abutting the back of the mall.
A six foot
privacy fence along the property line divides the mini—mall from
the Complainants.
The source of the noise emissions
is located on
the. roof of
Birchwood Plaza above a Little Caesar’s Pizza
(Little Caesar’s)
restaurant.
The Complainants allege that the noise is emitted by
an oven fan/air makeup vent and a refrigerator compressor unit2
installed by and belonging to Little Caesar’s.
R.
at 101—103.
The roof units are on the back of the roof and approximately 79
feet from the east side of Complainants’ house.3
R.
at 84—86.
The oven fan/air makeup vent exhausts the heat from the oven and
intakes outside air.
This unit begins to run at approximately
10:30
in the morning when the oven is turned on for the opening
of business at 11:00.
(R.
at 69.
The compressor unit is
attached to a walk-in cooler for the pizza dough.
The compressor
The complaint incorrectly names Charles N. Rock personally
as
a Respondent
instead
of
the
corporation.
At
hearing,
the
attorney for the corporation waived any objections for failure to
name the proper party.
R.
at 9.
2
Hereinafter “roof units” when referring to both.
~
Earlier in the hearing, the distance of seventy-nine
feet
was stated in the record by Mr. Stratton who at that time was not
under
oath.
R.
at
29.
Mr.
Stratton restated this distance,
after being sworn in, during cross—examination by Respondent.
R.
at 88.
This latter,
sworn testimony is relied upon by the Board.
122—68
3
unit is thermostatically controlled, or on and off as needed,
for
twenty-three hours a day.
It is turned completely off between 2
a.m. and 3’a.m. to defrost.
R.
at 165—166.
Prior to filing a formal complaint with the Board,
the
Strattons sent two letters to the Respondents describing the
noise and requesting relief.
Exhs.
3 and 4.
One letter
described the noise as a “nuisance” which interferes with family
life because the roof units.run almost uninterrupted during
Little Caesar’s business hours and interrupt and affect speech
and communication both inside and outside of the house.
The
noise is also described as being worse
in warmer weather when the
windows are open but still loud enough to be disruptive in colder
weather when the house is closed.
Both letters state that the
volume of speech must be considerably altered to overcome the
noise from the roof units whether inside or outside the house.
The formal complaint states that the sound emissions are
“loud, annoying and a nuisance” because the roof units “operate
at all times” without any pattern, and “will run as early as 6:00
am and as late as 2:30 am.”
The roof units have interrupted
“family life because
Complainants
cannot enjoy normal outside
activities
(gardening,
entertaining, BarBQing sic),
working on
or washing cars,
children playing in side yard,
or resting in the
front porch swing.”
In addition, the roof units can be heard in
the Complainants’
son’s bedroom and have disturbed his sleep and
study habits.
At hearing,
Pamela Stratton testified that “the
times are
very rare when there’s no noise emitted from the refrigeration
compressor.”
R.
at 24.
She described the noise as “stressful,
distracting and a nuisance” and noticeable even in winter with
the windows closed.
B.
at 25.)
In addition,
she stated that
“when
we’re outside in our side yard or backyard we have to
raise our voices to talk above the unit.”
B.
at 25.
Joseph Stratton testified at hearing that the noise made
communication in the yard very difficult, and called it
distracting, distressing,
and annoying.
B.
at 70.
He
described the exhaust fan as seeming to operate all the time and
the compressor unit as operating intermittently with
approximately ten minutes off out of every hour.
B.
at 84.
He
found the compressor unit noise more bothersome even though the
exhaust fan noise was more constant.
R.
at 72—73.
He also
stated that the sound emissions interrupted the family’s sleep.
R.
at 181.
Complainants introduced seven photographs at hearing which
show the oven fan/air makeup vent,
the refrigerator compressor
unit, the wood privacy fence, the relationship of the mall to the
house,
the trees and shrubbery between the buildings,
and the
view of the roof units from the upstairs bedroom window and the
kitchen.
In these latter
two
views the compressor unit is fully
122—69
4
visible from the windows whereas the oven fan/air makeup vent is
screened by trees or bushes from the house.
Exh.
1.
Respondents’
witness, Tim Shea,
is employed by the property
management company which manages the mall property for Charles
Rock Associates,
Inc.
Mr.
Shea testified that he had spent time
listening to the units one at a time and together from the
driveway of Complainants’ property.
R.
at 92.
He found that
the noise created by the roof units was “not a disturbing noise”
and that he “was talking in a normal voice” when the compressor
unit was running.
B.
at 90—105.
On cross—examination,
Mr.
Shea stated that he listened for only about fifteen minutes.
fR.
at 96—97.3
After considering the testimony on the type,
severity,
frequency and duration of the noise,
the Board finds that the
roof units above Little Caesar’s interferes with the enjoyment of
life by the Complainants.
To determine
if this interference
is
unreasonable,
as required by Section 900.102, the Board must
consider the facts of the case
in light of the factors in Section
33(c)
of the Act.
Wells Manufacturing Co.
v.
PCB,
73 Ill.2d 226,
232—233,
383 N.E.2d
148,
150—151
(1978).
See,
also,,
Ferndale
Heights Utilities,
44 Ill.App.3d 967,
358 N.E.2d 1224
(1st Dist.
1976).
Section 33(c)
states:
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 of 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.
Ill. Rev.
Stat.
1989 ch.
111 1/2,
par. 1033(c),
as amended
122—70
5
by P.A. 86—1363, effective September 7,
1990.
The Section 33(c) (1)
elements of character and degree of
injury and interference from the roof units were discussed above.
The record indicates that the noise emissions from the roof units
frequently and substantially interfere with leisure and everyday
activities inside and outside the house and with sleep.
The
unpredictable and lengthy periods of the noise emissions are also
beyond mere annoyance or discomfort and require some adjustment
in the regular habits of the Complainants.
The noise emissions
clearly interfere with Complainants’ use and enjoyment of their
property.
For Section 33(c)(2),
the record developed at hearing shows
that Little Caesar’s has social and economic value by supplying a
service and providing employment to the area.
Charles Gvozdich,
part owner of Little Caesar’s,
described his business as a carry
out pizza restaurant employing approximately fifteen people.
According to the owner, the restaurant averages about seven
hundred customers per week throughout the year.
B.
at 172-
173.
It is undisputed that priority of location is
in .favor of
the Strattons.
Complainants have resided at 204 West Birchwood,
Morton,
Illinois since July of 1987 when the lot immediately east
of Complainants was vacant.
Complainants attended the zoning
board hearing on proposed construction of the mall.
R.
at 38—
39.
Construction of the mall ended
in late October 1988.
Section 33(c) (3)
also requires the Board to consider the
suitability of a pollution source.
Little Caesar’s
is located in
a small,
new commercial development
in
a completely residential
area.
The zoning for the mall was not indicated in the record
and only one other restaurant operates nearby.
R.
at 173.)
Because of the predominantly residential neighborhood, Little
Caesar’s suitability may be questioned only because of the
negative impact of noise emissions on neighboring property.
Section 33(c)(4) requires consideration of any technically
practicable methods for reducing the noise emissions.
Gregory
Zak, Noise Technical Advisor at the Agency, testified for the
Complainants as to the availability of mechanisms for reducing
the noise emissions from the compressor unit.
Mr.
Zak provided
information on a muffler/silencer system for the compressor unit.
The cost of such a system was estimated at approximately
$2,500.00.
R.
at 142.)
In addition,
a letter from respondent Rock’s counsel, dated
August
17, 1990,
states,
“Although that sic
I maintain that my client
is not
in violation of any applicable noise emission
standards,
I do have a proposal to rectify the
122—7 1
6
situation.
My client,
at its own expense,
is prepared
to construct a wooden “fence” on the roof of the
building between the refrigeration unit and your
residence.
I suspect that the wooden barricade would
be sufficient to deflect most of the noise emitted from
the unit away from your residence.
Again,
I have
indicated that the fence should be around the
refrigeration unit rather than the exhaust fan since it
is my opinion that the exhaust fan is substantially
quieter than the refrigeration unit.”
Exh.
10.)
The Complainants have requested that a noise barrier or
muffler be installed that would redirect the noise away from
their home.
The testimony at hearing supports a finding that,
when properly designed, either of these options is technically
feasible method for reducing the noise emissions onto
Complainants’ property.
No evidence as to economic
reasonableness of reducing or eliminating the emissions was
entered into the record.
The Board is unaware of any subsequent compliance
in this
case.
(Section 33(c)(5).)
After consideration of these factors and the facts of this
case, the Board concludes that the noise emissions from the roof
units on the Little Caesar’s at Birchwood Plaza constitute an
unreasonable interference with the Complainants’ use and
enjoyment of their
property.
The emissions therefore constitute
noise pollution pursuant to 35
Ill. Adm. Code 900.101 and violate
35
Ill.
Adm. Code 900.102 and Section 24 of the Act.
The Board
finds that several actions are required to remedy
the noise pollution and these actions shall be ordered.
Failure
to comply with a Board’s Order could subject the Respondent to
further complaint proceedings and a civil penalty pursuant to
Section 42(h)
of the Act.
Ill. Rev. Stat.
1989,
ch.
111 1/2,
par-
1042(h),
as added by P.A.
86—1363.
This Opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
1)
The Board finds that Respondents have violated Section
24 of the Act
(Ill.
Rev.
Stat.
1989 ch.
111 1/2, par.
1024)
and
35 Ill. Adm. Code 900.102.
2)
Respondent shall initiate a program to attain
compliance with all applicable Board regulations.
The
compliance program shall require that:
a)
Respondent erect either a noise barrier or a noise
122—7 2
7
muffler around the noise sources.
b)
The noise barrier or muffler be designed by a
qualified consultant.
c)
The barrier(s)
or muffler(s) must affect both
noise sources either individually or together.
d)
The noise barrier or muffler must be in place and
finished by July 31,
1991.
3)
Respondent shall cease and desist from violations of
Section
24 of the Act and 35 Ill.
Adm. Code 900.102 of
the Board’s regulations effective upon attainment of
compliance,
but not later than July 31,
1991.
Section 41 of the Environmental Protection Act,
Ill. Rev.
Stat.
1989
ch.
111
½
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.
I,
Dorothy N. Gunn,
Clerk of the Illinois Pollution Control
Boar~,hereby certify that the above Order was adopted on the
_________
day of
~
,
1991, by a vote of
I
~Z,
~(
-
Dorothy N.
G,u/n,
Clerk
Illinois Po)~XutionControl Board
122—73