ILLINOIS POLLUTION CONTROL BOARD
April 25, 1991
VILLAGE OF MATTESON,
)
Complainant,
)
v.
)
PCB 90—146
(Enforcement)
WORLD MUSIC THEATRE
)
JAN PRODUCTIONS, LTD.,
DISCOVERY SOUTH GROUP, LTD.,
)
and GIERCZYK DEVELOPMENT,
INC.,
)
)
Respondents.
MR. JOSEPH R.
PEROZZI AND DAVID A. BRAUER, OF MCGRANE,
PEROZZI,
STELTER, GERARDI, BRAUER
& ROSS, APPEARED ON BEHALF OF
COMPLAINANT.
SAMUEL J. VINSON, MICHAEL SCHNEIDERMAN, CHRISTOPHER W.
ZIBART AND
STEVEN A. LEVY, OF HOPKINS
& SUTTER,
APPEARED ON BEHALF OF
RESPONDENTS.
INTERIM OPINION AND ORDER OF THE BOARD
(by B.
Forcade):
This matter comes before the Board on a Complaint filed by
the Village of Natteson (“Matteson”)
in Cook County,
alleging
that noise pollution in violation of Sections
23,
24, and 25 of
the Illinois Environmental Protection Act (hereinafter,
“the
Act”) was caused by World Music Theatre, JAN Productions,
Ltd.,
Discovery South Group,
Ltd.,
and Gierczyk Development,
Inc.
(hereinafter collectively referred to as “Theatre”)
in the
operation of an outdoor theater located within Cook County,
in
Tinley Park, Illinois.
Procedural History
The complaint was filed on August
2,
1990.
On August
9,
1990 the matter was held for duplicitous/frivolous determination.
Proof of service was filed on August 14,
1990,
indicating that
William Gaston,
Registered Agent for Gierczyk Development,
Inc.,
refused service.
The Board accepted this matter for hearing on
August 30,
1990.
Since Matteson took no action to perfect
service against Gierczyk or seek other Board action, the
complaint is dismissed as against Gierczyk Development,
Inc.
On December
7,
1990, Matteson filed its answers to
interrogatories and its response to the Theatre’s request for
production of documents. The documents included a record of
complaints filed with the police, correspondence, part of the
preannexation agreement between the Theatre and Tinley Park,
and
a concert schedule.
The Board received extensive testimony at
three hearings held
in Matteson on December 10,
11, and 20,
1990.
12 1—579
2
Also at hearing the parties resolved the matter of a subpoena for
a local newspaper reporter and a motion to quash.
The hearing
officer noted that 20-35 members of the public attended the
hearings; several citizens testified.
Matteson produced several
witnesses,
including residents, Matteson Village Trustees and
personnel, and the Mayor of Country Club Hills.
The Theatre also
produced several witnesses,
including area residents,
a general
partner of one
respondent,
and certain key personnel.
Natteson
and the Theatre both filed their briefs on February
1,
1991.
The
Board has been requested to render its decision by May
1,
1991.
The Facility
The facility is an outdoor amphitheater, at 19100 Ridgeland
Road, Tinley Park,
Illinois.
It is approximately
1 mile north of
the northwest boundary of the Complainant, Village of Matteson.
Matteson alleges the noise emissions impact areas up to
2
1/2
miles from the Theatre.
The Theatre faces east toward a large
forest preserve.
Other land uses in the area include farm land,
a golf course, and a drive—in theater.
Other than the homes
in
Tinley Park,
residential areas are approximately
1 mile away.
These include Matteson,
a community of about 11,000 residents,
approximately
1 mile to the southeast, and Country Club Hills,
with about 15,000 residents, approximately
2 miles to the east.
The distribution, by day,
of the concerts or sound producing
events was roughly: Monday
(4), Tuesday
(2), Wednesday
(3),
Thursday
(4), Friday
(5), Saturday
(10),
Sunday
(9).
The Theatre’s “season” for performances
is generally
Memorial Day to Labor Day.
Tr.
3 at
p.
492.1
For 1990, the
first season the Theatre was open,
attendance totalled about
457,000 persons, who came to hear 32 performances.
Tr.
3 at p.
486 and p.
470.
The Theatre could possibly accommodate 40-50
performances per season.
Tr.
3 at
p.
492.
The Theatre is a
major source of part—time employment, with 650—700 employees,
many of whom are local residents.
The Complaint
The complaint alleges violations of Sections
23,
24,
and 25
of the Act.
The alleged noise pollution is “(n)oise created by
the over amplification of sound being generated from the World
Music Theatre, during the presentation of various concerts.”
The
complaint does not specifically identify the noise as music only.
At hearing, the noise was more particularly described in terms of
music,
low repetitive bass sounds,
singing, conversation by the
performers,
and crowd noises,
including applause and loud bangs
1
The transcript of the December 10,
1990, hearing will be
(Tr.
1 at p.
XX), the December 11 hearing will be
(Tr.
2 at
p.
XX),
and the December 20 hearing will be
(Tr.
3 at p. XX).
121—580
3
that may have been firecrackers.
The complaint states that
“(t)he excessive noise is being created by the business operated
by the Respondents, which occurred at the various concerts
between the hours of 8:00 p.m. and 11:00 p.m.
on June 30, July 4,
July 14, July 21, July 23, July 29,
and July 30,
1990.”
At
hearing the alleged violations were stated as beginning on June
2,
1990 and continuing on various dates
in July,
August and
September, as well as on October 4-7,
1990, the dates on which
Tinley Park was permitted to hold an Octoberfest celebration in
the Theatre parking lot.
The complaint alleges that the effects on human health,
plant or animal
life,
or the environment were as follows:
The excessive noise created by the business operated by
the Respondent has directly resulted in disruption and
loss of sleep; preventing the use and enjoyment of back
yards and back yard patios;
forcing residents to keep
windows closed during the summer months; adversely and
unreasonably interfering with the enjoyment and use of
the residential homes owned by the citizens primarily
located
in the Woodgate and Creekside subdivisions of
the Village of Matteson.
Complaint,
p.
3.
At hearing, the Complainant stated that the “Act was
violated through incessant,
numerous, and unreasonable intrusions
into the private lives of our residents.”
Tr.
1 at p.
11.
Essentially, the complaint and proof address noise pollution in
the nature of “unreasonable interference” under Section 24,
rather than violations of specific numeric limitations.
The
complainant also alleges noise pollution has extended into the
neighboring City of Country Club Hills.
The relief requested in the complaint is “that the
Respondent be required to control the amplification of sound
emanating from the concert area so that it does not unreasonably
interfere with the enjoyment of life by the residents of the
Village of Matteson.”
In its brief, Complainant elaborates on
the request for relief to include mandatory monitoring and
architectural studies at the Respondent’s expense, periodic
reports, the possibility of modifications to the facility, and
the possibility of penalties for failure to remediate.
See
complaint at
p.
14.
Title VI of the Act establishes procedures and standards for
noise control.
Section 23 sets forth the legislature’s purpose
of preventing noise which causes a public nuisance.
Section 24
prohibits emitting noise beyond one’s property that unreasonably
12 1—581
4
interferes with the enjoyment of life or lawful activities so as
to violate Board rules or standards.
Section 25 authorizes the
Board to adopt noise regulations.
Sections 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 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 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.
Second, the Board has adopted an unreasonable
interference with the enjoyment of life standard, this is similar
to a public nuisance standard.
Numerical test data,
consistent with the regulations’ use of
frequency bands, was not presented in this case.
Respondents
introduced some evidence of dB(A)
readings, but this is
inappropriate to show compliance with the noise nuisance
regulatory standard.
The Board previously addressed this issue
in Will County Environmental Network v. Gallagher Blacktop, PCB
89—64,
113 PCB 291
(January 11,
1990,
at pp. 9—10):
The Board notes several problems with Gallagher’s
reliance on numerical sound measurements as a defense
to the noise nuisance action.
First, compliance with
one set of regulations
(the numerical noise emissions
values) does not present an absolute bar to finding of
violation regarding another set of regulations
(the
general nuisance noise prohibitions).
121—5 82
5
Second,
the numerical noise measurements taken by
Gallagher are for the years
1973,
1974, and 1984.
The
complainant’s nuisance action is for the years
1987,
1988,
and 1989.
Thus, the respective claims represent
substantially different time periods.
Third, the numerical noise values asserted by Gallagher
do not show “compliance” with the numerical noise
limitations of the State of Illinois.
The original
noise regulations that apply here were adopted by the
Board in R72-2,
In the Matter of: Noise Pollution
Control Regulations, Order of July 23,
1973; Opinion of
July 31,
1973, as Rule 202 and Rule 203.
Those rules
provided maximum allowable octave band sound pressure
levels for nine octave band center frequencies.
The
single number A weighted scale for noise measurement
was never adopted by this Board as a regulatory
standard.
These
1973 octave band pressure levels were
codified at 35
Ill. Adm. Code 901.102.
In 1987, the
Board adopted amendments which provided that the
particular regulatory standards should be measured
based on one—hour Leq measurement techniques,
~
R83—
7,
In the matter of : General Motors Corp. Propo~
Amendments to 35
Ill.
Adrn.
Code 900.103 and 101.104
January 22,
1987.
Gallagher’s “A scale” noise
measurements do not show compliance with any past or
present numerical regulatory standard of the Board.
Here, the dB(A)
numerical data
(as cited in the compiled notes
and videotape, Respondents’ Exhibits C
& E)
cannot show
compliance with a nuisance standard; the numerical data are from
a night with no nuisance complaints;
and the numerical data are
not recorded in compliance with 35
Ill. Adm. Code 901.102.
Therefore,
compliance with numerical noise limitations
is not at
issue.
The second method of implementing the noise provisions of
the Act is 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
12 1—583
6
Protection Act,
so as to cause noise pollution in
Illinois,
or so as to violate any provision of this
Chapter.
In effect, these Board regulations adopt a 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 here are founded in
this public nuisance theory, rather than in terms of noise levels
that exceed specific sound emissions levels.
Various noise enforcement cases, which the Board has
previously decided,
include:
James
Ka-ji, Dorothy Ka-li v.
R.
Olson Manufacturing Co.,
Inc.,
PCB 80—46,
41 PCB 245
(1981),
aff’d 109 Ill. App.
3d 1168,
441 N.E.
2d 185
; Citizens of
Burbank v. Overnite Tran~portationCompany, PCB 84—124,
65 PCB
131,
(1985),
88 PCB 285
(1988); Citizens of Burbank and People of
the State of Illinois,
ex.
rel., Richard M.
Daley v. Clairmont
Transfer Company, PCB 84—125, 74 PCB 255 (1986); John W. Eilrich
v. James Smith,
d/b/a Naywood Shell Car Wash, PCB 85-4,
77 PCB
245
(1987); Thomas
& Lisa Annino v. Browning—Ferris Industries of
Illinois, PCB 87-139, 91 PCB 349
(1988); Anthony W. Kochanski v.
Hinsdale Golf Club,
PCB 88—16, 101 PCB 11
(1989),
rev’d 197 Ill.
App.
3d 634,
555 N.E.
2d 31; William E. Brainerd v. Donna Hagan,
David Bromaghim and Phil Robbins, d/b/a The Gables Restaurant,
PCB 88-171,
98 PCB 247
(1989); and Brian J. Peter v. Geneva Meat
and Fish Market and Gary Pikuiski, PCB 89-151,
109 PCB 531
(1990); Will County Environmental Network v. Gallagher Asphalt,
PCB 89—64,
113 PCB 291
(1990); Kvatsak v.
St. Michael’s Lutheran
~
PCB 89—182,
114 PCB 765 (1990);
Zivoli v. Prospect Dive
and Sport
Shop,.
Ltd., PCB 89-205,
____
PCB
___,
March 14,
1991.
The “reasonableness” of the noise pollution must be
determined in reference to statutory criteria in Section 33 (c).
Wells Manufacturing Company v. Pollution Control Board,
73
Ill.2d
226,
383 N.E.2d 148
(1978)
; Mystic Tape,
Div.
of Borden,
Inc.
v.
Pollution Control Board,
60 Ill.2d 330,
328 N.E.2d 5
(1975);
Incinerator,
Inc.
v. Pollution Control Board,
59 Ill.2d 290,
319
N.E.2d 794
(1974); City of Nonmouth v. Pollution Control Board,
57 I11.2d 482,
313 N.E.2d 161
(1974).
However, complainants are
not required to introduce evidence on these criteria.
Processing
& Books v. Pollution Control Board,
64
Ill.2d 68,
351 N.E.2d 865
(1976).
Sections 900.101 and 900.102, which apply here, were given
judicial interpretation in Ferndale Heights Utilities Company v.
Illinois Pollution Control Board and Illinois Environmental
Protection Agency,
41
Ill.
App.
3d 962,
358 N.E.2d 1224
(1st
Dist. 1976).
The First District Court held the regulatory
language to be constitutional since sufficient standards could be
comprehended from reading Section 24, the Board’s regulations,
12 1—584
7
and the guidelines for enforcement cases found in Section 33(c)
of the Act.
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 and
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.
A 1985 case,
finding a violation of
Section 24 of the Act and of Section 900.102 of the Board’s
rules, provides an example of this approach:
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
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, PCB 84-124,
65 PCB 131,
136,
138
(1985).
Testimony at Hearing on Behalf of Matteson
To summarize, Matteson bases its proof on the testimony of
fourteen individuals living up to
2
1/2 miles from the Theatre,
who testified that noise disturbed them between around 8:30 p.m.
to 11:00 p.m.
on many occasions.
At least
4 families have
children whose sleep was disturbed by noise resounding within the
home,
even with windows closed and air conditioning running.
Adults,
too, had sleep disturbed and in two cases the families
had working adults who were required to get up exceptionally
early for work.
Besides sleep disruption,
one individual
physically felt the vibrations from the music.
Three individuals
also reported the wall, house, or window rattling or vibrating
from the booming, thumping bass.
T.V. watching was disrupted and
121—585
8
the T.V. could not be heard at its regular volume due to the
intrusion of the music, crowd noise etc.
Outdoor enjoyment was
also curtailed.
The problem continued throughout the summer,
with some variation at each concert and some possible reduction
later in the summer.
Most people were also disturbed by the
Octoberfest celebration that the Theatre permitted Tinley Park to
hold on its grounds.2
Mr. Michael Perry,
a Matteson Trustee, testified that,
on an
ongoing basis,
the noise disturbed both him and his wife, who
also testified.
Tr.
1 at 179.
Mr. Perry indicated that he
agreed with his wife’s testimony,
but would add that they also
heard the noise on June 2, before going out for the evening.
He
stated that he did not hear all the concerts because he travels
out of town for business.
Tr.
1 at p.
171.
He testified that on
July 20 a fellow Matteson trustee, Mr.
Tindall, came to Mr.
Perry’s house and heard concert sounds that could not be heard at
a church lot, which lies at a lower elevation,
approximately 60—
80 feet away.
Mr. Tindall complained that,
on his elevated deck,
the sounds were loud and in his second story bedroom it was
“virtually impossible” to sleep because of the noise.
On cross examination, he admitted that besides avoiding
outdoors because of noise,
he also came indoors because of
mosquitoes.
Tr.
1 at p.
184.
However, the thrust of his
testimony was clearly that his outdoor enjoyment and entertaining
was seriously curtailed due to the Theatre’s sound transmissions.
Tr.
1 at p.
174.
Mr.
Perry stated that another witness, John Rangel,
came to
his home on July 21,
22, or 23 and heard how the noise was
“annoying” and how “it severely affects the quality of life
in
our subdivision”.
Tr.
1 at
p.
175.
He noted, however, that when
he joined other Matteson and Country Club Hills representatives
on an investigative tour on June 15 or 16, the noise was not a
problem.
Tr.
1 at p.
177.
Many people called Mr. Perry’s home to complain about the
concerts, although the number dropped later in the season.
He
attributed this to either people being tired of complaining or
the noise being somewhat reduced.
Tr.
1 at p.
185.
He mentioned
that the Matteson Trustees voted unanimously on July 25,
1990 to
adopt the motion directing a complaint to Tinley Park.
See
Complainant’s Exhibit C,
Tr.
1 at p.
180,
181.
2
Note:
Where witnesses referred to concerts by performers’
names rather than by dates, the Board has inserted dates as nearly
accurate as possible.
The Board finds that no material prejudice
will result.
121—586
9
Mr.
Perry explained that he had some difficulty identifying
dates when there was a noise problem, but made this general
characterization:
The entire summer was dedicated to dealing with
complaints from residents,
from spouses, from children,
my own children, and also dealing with the village
board in trying to resolve this issue so, you know,
each one of these concerts again ran together.
Tr.
1 at p.
178.
Mr. Bernard Tindall,
a Matteson Village Trustee, has lived
in the Woodgate subdivision of Matteson for three years.
There
were four members of his household until August,
1990,
when his
daughter got married.
The Theatre’s sound transmissions
disturbed him on June
3,
and he noted that the noise was louder
on his second floor.
The problem was essentially an ongoing one
for his family.
Mr. Tindall indicated that music and lyrics
could be heard within the house.
Also, the “beat” caused the
windows in the house to vibrate.
Tr.
1 at p.
190.
With respect
to locations outside his property, Mr. Tindall testified
regarding one night in particular.
On the night in question he
found at many locations the noise was audible but not
aggravating.
However,
Mr.
Tindall stated that at Michael Perry’s
house,
“it was like
if he was right in the theatre.”
Tr.
1 at
pp. 191-192.
Mr. Tindall also heard the noise in his bedroom
even when it was not heard on his investigative tours of Matteson
and Country Club Hills.
Tr.
1 at p.
194.
Mr. Tindall described the impact on his family and the
extent of community complaints to him as follows:
I’ve also got so many calls that
I just lost thought of
how many calls we got and which one was the loudest
because I don’t think there was any of them that it
wasn’t
——
you couldn’t hear it.
You would hear almost every one of them.
*
*
*
My threshold of comfort is
if
I can hear it.
I’m not
a music fan, there’s no two ways about
it.
To discomfort me
——
number one,
in my bedroom,
adjoining my bedroom is a reading room.
My wife is an
avid reader.
12 1—587
10
She could not read.
She had to put her books down.3
*
*
*
I’ve got so many complaints on my personal phone
——
in
fact,
there was a time there were my weekends were
taken up just driving around listening to the sounds in
the different communities.
*
*
*
I’ll tell you it’s hard to keep under control when you
think about that because when you can’t sleep and when
people call you and they think because you’re an
elected official, you have the power to shut that thing
off.
I was suggesting everybody call Tinley Park, let the
police over there go and do something about it.
Tr.
1 at pp.
188,
189,
192, and 193.
Mr. Daniel Dubriel, resides
in Matteson and has been
Matteson’s Village Administrator for approximately eight years,
including the period from June through October,
1990.
Mr.
Dubriel provided some background concerning Matteson’s early
contacts with individuals then involved with developing a theatre
in the area.
He described meetings with Cathy Cardona of
Gierczyk Development Group as follows:
Q.
Did this initial contact develop into any
further negotiations?
A.
No.
Basically her approach to us was whether
or not the Village of Matteson might be
interested in entertaining development of
this nature within the community in some
location within the municipality, and
I
indicated to her that
I doubt that would be
the case.
It did not seem to me to be consistent with
the type of development that we had
envisioned for much of the property within
the village or it would be large enough to
accommodate such a development.
~ The witness testified that this happened on the nights of
June 2,
3,
27,
and July 21,
22,
23 and other unspecified dates.
12 1—588
11
Q.
Was that the sum and substance of the contact
and the village’s response?
A.
Yes,
it was.
Tr.
1 at pp.
199—200.
Mr. Dubriel also described the letter marked Exhibit E from
Matteson to Tinley Park.
The letter urged Tinley Park to enforce
the pre—annexation agreement with the Theatre to eliminate the
noise problem and to inform them of Matteson’s bringing this
action before the Board.
That letter was written after
a special
Matteson village board meeting at which citizens complained.
Tr.
1 at pp. 201—202.
Mr. Dubriel also described how he and others in Matteson’s
administration received citizens’
complaints by phone including
many received by the police department.
He identified Exhibit G
as the synopsis of those complaints from June
3 through July 30,
before the filing of this complaint with the Board.
These
complaints covered June
3, July 20-23, July 29-30,
in particular.
Tr.
1 at pp. 205-208.
The summary labeled as Exhibit G records
52 complaints.
Other complaints were registered in person at
three or four separate open forum trustee meetings.
Tr.
1 at pp.
208-210.
When asked if complaints stopped in July,
Mr. Dubriel
responded that there were fewer complaints after July.
He was
not aware of specific complaints,
except that a significant
number were received during Octoberfest.
Exhibit G was described
as a partial listing only.
He noted that the police reports did
not show complaints for August or September.
Tr.
2 at p. 257.
Tr.
1 at pp.
211—212.
Mr. Dubriel also noted that he made 6-9 tours of the area to
monitor sound.
He recalled that on
2 occasions,
including one
chance meeting with Mr. Hartman of the Theatre, noise was hardly
noticeable.
Tr.
1 at pp.
213,
215-216.
He also indicated that
Mr. Hartman said to him that the sound system had not been
altered as of their August
1 meeting.
Tr.
1 at pp.
213,
214.
He
stated that he sometimes thought that atmospheric conditions had
some effect on whether sound was heard on a particular night.
Tr.
2 at pp.
259—260.
Mr.
Dale Graham,
a Natteson Trustee,
resides in the
Applewood subdivision of Matteson.
He testified with regard to
the extent of the noise problem in Matteson as follows:
We had complaints start coming in almost from the first
concert.
*
*
*
12 1—589
12
Well,
there was one particular board meeting
I recall
that we had about
30 residents
in here that were very
adamant about the effect of this Music Theatre and on
the quality of their life.
We had had numerous complaints throughout the summer.
I don’t think there was a board meeting as
I mentioned
before where this subject did not come up at some point
during the board meeting.
Tr.
2 at pp. 273,
278.
Mr. Graham identified an area in Matteson where most of the
complaints originated.
This area lies within the Woodgate
subdivision.
He defined the location as being “approximately 100
feet west of Red Barn Road and approximately 250 feet east of St.
Paul’s Church, and then...take a line from those two points and
draw them out in a fan direction.”
Tr.
2 at p.
273-274.
Mr. Graham stated that on approximately 10-12 nights he
drove all around Matteson to monitor the noise level.
Tr.
2 at
pp.
273-275.
On August
1 he found the sound transmissions to be
substantially reduced from the levels heard on July 29 and 30.
He commented that he happened to meet with Mr. Dubriel and Mr.
Hartman
(a Theatre employee)
on August
1.
He commended Mr.
Hartman on the noise reduction and Mr. Hartman responded that the
change may be attributable to the Theatre’s adjusting the
speakers.
Tr.
2 at pp.
276-277.
~
Janet Nuchnik, the city manager of the City of Country
Club Hills, testified regarding the impact of the noise in her
community.
She described her role as being the same as Mr.
Dubriel’s; she oversees all city departments, including the
police.
She reports to the city council and the mayor.
Ms.
Muchnik described the magnitude of the complaints received by
Country Club Hills as follows:
Q.
Drawing on your personal experience and the
receipt of these complaints from whichever
source, how many identifiable complaints did
your city receive on any given night as far
as
a high water mark?
A.
The highest water mark was on the 27th of
June where we kept punch cards up until a
certain time and then the calls were too
numerous to keep punch cards,
so then we just
wrote down addresses.
And between the punch cards and the
addresses, we had 76 calls, but
I had to
bring in extra sergeants off the street that
121—590
13
night and overlap the TOC’s hours of
operation.
And at that point, we couldn’t even write
things, we just kept track that the calls
were coming in.
We hit about 150 that night,
but 76 on punch cards and documented
addresses.
Q.
Was there a trend observed by the city in
receiving these complaints as the season
progressed?
*
*
*
A.
Well,
after
--
that night our emergency
network was pretty much knocked out, and so
we called each of the homeowners associations
in the community and asked them to get the
word out to
the
members, please not call the
police departi~ientat night, we can’t handle
it, despite
--
and so the calls tended then
to come in the next day, although there was
always some during some of the concerts.
The worst event after that was on the 17th of
August, the police logged 25 calls that
night.
Q.
So if there was a trend,
it was more in the
receipt of documents,
not necessarily sound
level because you had changed your program?
A.
We changed our reporting.
We couldn’t afford
to go through what we went through that
night,
not to have your lines open for
emergencies for a period of almost two hours
which for a small city
--
Tr.
2 at pp.
284,
285.
Ms. Muchnik indicated that Country Club Hills logged
complaints from as far as 3-1/2 miles away from the Theatre in
its Winston Park subdivision.
The greatest number of complaints
came from its Narycrest subdivision which is 1-3/4 to 2 miles
away from the Theatre.
Tr.
2 at pp.
286—287.
The second worst night of complaints occurred on August 17
and the last night of complaints took place on September 1.
Tr.
2 at pp.
286-287.
Ms. Muchnik drove the streets of all areas
which generated complaints in July and August.
She also drove
into residents’
driveways to verify complaints.
Tr.
2 at
p.
288.
12 1—59 1
14
She noted that residents taped concerts,
including the one held
on June 27, when residents could hear announcements too.
Tr.
2
at pp.
288,
289.
She stated that weather did not seem to be a
factor in whether Country Club Hills received complaints.
Tr.
2
at
p.
290.
Mr. John Rangel, who lives with his wife and two children,
has resided in the Woodgate subdivision in Matteson since 1976.
He is a former Village trustee and has been associated with the
Woodgate Civic Organization.
Tr.
1 at pp.
16-22.
He testified
that he and his wife found the noise from the Theatre to be a
problem, particularly on the second floor of their home.
The
noise was especially disturbing because his wife goes to sleep
early due to her early work schedule.
To counteract the noise
they closed windows and turned on the air conditioning.
Tr.
1 at
p.
21.
On June
2 and July 20,
21 and 23 and on other dates he could
not remember, the noise was bothersome to him.
On those four
specified dates he called Tinley Park and the Matteson police to
complain.
Tr.
1 at p.
23.
He also wrote various letters to
lodge his complaints.
He recalled August 17 and September 1 as
otherdates when the concert noise was disturbing, but noted that
on some other nights the noise was not unreasonable.
Tr.
1 at
pp.
24,
25.
Summarizing the impact on homeowners
in his
subdivision, Mr. Rangel stated,
“I think this has not enhanced
the quality of life but has detracted from it as
I have
experienced in my family personally.”
Tr.
1 at p.
27.
Mr.
Paul
F.
Landini has been a resident of the Cricket Hill
subdivision in Matteson since 1981.
Tr.
1 at
p.
32.
His home is
approximately 2.4 miles from the Theatre.
Tr.
1 at p.
41.
He
resides with his wife and two children.
He testified that he
registered complaints with the Village.
He first became
disturbed by the Theatre’s sounds on June
3,
1990, when,
in his
bedroom with the windows closed he felt vibrations on his skin
and on the bedroom window pane that faces the Theatre.
Tr.
1 at
p.
37.
He also heard booming sounds outside on his driveway.
Tr.
1 at p.
35.
He described the same things as happening on
July 20,
21,
22, and 23.
Tr.
1 at
p.
37.
At
other times the
noise did not last as long and he did not make a complaint.
Tr.
1 at p.
38.
Mr. Landini stated that he “heard it throughout the
summer,” and pointed to later in the season,
on July 29, when it
was especially loud.
Tr.
1 at p.
38.
The Octoberfest was also
disturbing to him and his household.
Tr.
1 at p.
42.
He
indicated that the noise was not as much of a problem in August.
Tr.
1 at p.
45.
Mr. Landini described his personal discomfort over the noise
as follows:
I2
1—592
15
I found it to be very irritating because
it was noise
that came and went,
and I had no control over
it, and
personally,
I find that very irritating.
I mean I like music but
I like to be able to turn it on
and turn it off at will.
I feel inside my house, when someone else
is imposing
this noise upon me,
I feel very irritated and
frustrated because
I can’t turn it off.
Tr.
1 at p.
39.
Mr. Reginald Richardson,
lives with his wife in the Woodgate
subdivision of Matteson.
He indicated that he experienced
unreasonably loud noise on June 2,
3,
and July 22.
On June 2,
1990 while mowing his lawn he heard a “thumping
and bumping” sound,
which he also later heard
in his house with
the windows shut.
Tr.
1 at pp.
48-50.
He found the noise
irritating, although not as irritating as the louder music later
in the season.
Tr.
1 at p.
50.
The June 2 and
3 concerts were
very loud and irritating.
Tr.
1 at p.
53.
These were followed
by concerts that could be heard, but were not so loud he felt the
need to call to complain.
Tr.
1 at p.
53.
However,
the July 22
concert was exceptionally loud.
He and his wife made several
calls to the Village police,
and his wife and some neighbors went
to Tinley Park and filed
a formal complaint.
Tr.
1 at p.
52.
They also attended a Matteson Village trustee meeting where
complaints were heard.
On July 30, the music disturbed him after
he had gone to bed and his windows were closed and the air
conditioning was on.
Tr.
1 at pp.
53-54.
In August, he and his
wife were out of town at least two weekends and he did not recall
other times that he heard much until Octoberfest.
Tr.
1 at p.
55.
Ms.
Beth Brophy has four members in her household and lives
in the Woodgate subdivision of Natteson.
Her family includes her
three and seven year old children.
On June 2 and
3 and July 4
and 21,
for 1½
-
2 hours until
11:00 p.m.,
she heard the music,
some lyrics and the bass sounds both inside and outside her home.
Tr.
1 at pp.
58—59.
Regarding the first three dates she
described this impact on her household, within the home, with the
air conditioning off and windows open due to the heat:
Well,
I had
a hard time getting my children to sleep.
They heard the noise,
and being small children,
I
prefer them to be in bed at 8:00 o’clock, and it will
be till 1:00 o’clock before
I could get them to sleep.
Tr.
1 at
p.
61.
121—593
16
The same effect was felt on June 21.
Tr.
1 at pp.
62-63.
July 30 the music was also loud enough to hear lyrics, music and
the beat.
Tr.
1 at p.
63.
Octoberfest was also very loud and
she called the police in Matteson and Tinley Park.
She testified
that on each specified date she called the Matteson police, who
told her to call the Tinley Park police.
Tr.
1 at
p.
64.
On
some occasions noise may not have been a problem, but on other
unspecified dates the problem continued and a solution seemed
hopeless:
Q.
We have with other witnesses voids here,
there are openings where maybe you didn’t
hear things.
Did you hear anything or sense anything on
any of these other dates?
A.
Yes.
But
I can’t be specific and tell you
exactly that it was Manhattan Steamroller
that night.
Q.
It would have been on dates where there were
other events happening at the theatre?
A.
Right.
But
I cannot specifically tell you
right now that it was specifically because as
the summer progressed
I got used to hearing
it.
got tired of hearing
it,
I thought it was
a way of life for us.
Tr.
1 at pp. 64—65 (emphasis added).
Mr.
David Hearns,
is
a resident of the Woodgate subdivision
in Matteson, with five members of his household,
including two
young children.
Tr.
1 at p.
66.
On June 2 he found the singing,
lyrics and bass unreasonably loud while he was trying to sleep.
Tr.
1 at p.
67.
He indicated that he and his wife accepted the
Theatre as
“a fact of life” but did not anticipate the volume
levels.
Tr.
1 at pp. 69-70.
The music was not drowned out by
passing cars and interfered with his children’s sleep:
It was very difficult to get them to sleep that night.
We kind of gave it up for loss, and when the concert
was over, we tried to get them back down.
Tr.
1 at p.
72.
On June
3 and 30th the noise was noticeably loud.
On June
30th he heard the noise again while trying to sleep although his
12 1—594
17
windows were clo3ed.
Tr.
1 at p.
73.
His household again
experienced a lack of sleep.
Mr. Hearns complained to the Matteson police on July 21 and
during Octoberfest.
They referred him to the Tinley Park police.
Tr.
1 at p.
74.
The July 20 concert was also audible but Mr.
Hearns concluded that “it was going to be a way of life.
It
wasn’t overly oppressive.”
Tr.
1 at p.
74.
However, July 21 and
22 the noise was “incredible” and conversations, crowd noise,
and
vocals were heard.
After July 23, the sounds were less prominent until
Octoberfest when the sound was “incredibly loud” and the impact
was again “difficulty getting the children asleep and getting
asleep myself.”
He heard some concert sounds from July 29
—
August
2, but testified that the sound persisted, but was not
oppressive:
Q.
You’ve given us an open space between
Grateful
Dead and Octoberfest, did you not
hear any sound at all during that time frame?
A.
I did hear sounds, but as
I said,
I realized
it was going to be a way of life,
and
it
wasn’t oppressive,
so I tried to ignore it.
Tr.
1 at pp.
76—77
(emphasis added).
Mr. Hearns also shared a concern that filing complaints
proved unproductive:
I found that in terms of voicing my complaint to the
Tinley Park Police Department,
I was kind of upset that
I couldn’t get relief from them.
I specifically asked them if
it was something
they
could do.
They said
it was not.
They would take down my complaint, and that would be
the end of
it.
And again instances would come on again
and again where
I would hear
the
sound,
and
I felt
I
could get no relief from this.
Tr.
1 at p.
77
(emphasis added).
Ms. Victoria Panos lives with her husband and five year old
child in the Woodgate subdivision in Matteson.
She has resided
there
for fourteen years.
Tr.
1 at pp.
126-127.
On June
2 she
could hear concert noises
in her home while her front windows
were closed and bedroom windows were slightly open.
Outside the
vocals could be heard along with the booming bass sounds.
Tr.
1
at pp.
127-128.
The sounds could be heard while watching
121—595
18
television and were not overridden by traffic noise.
Tr.
1 at
p.
129.
On June 3, her walls were rattling and she heard the
repetitive boom sounds.
She closed windows and storm windows so
they could sleep, noting that her husband gets up at 4:30 a.m.
Tr.
1 at pp.
130-131.
She heard the noise from 10:30 to 11:00
p.m. while they were trying to sleep.
Tr.
1 at
p.
131.
She did
not complain because she believed something would be done to
correct the situation.
On June 27 and July
2 and 3, Ms.
Panos had similar
experiences with the concert noise.
She also heard applause and
what seemed to be fireworks at the end of the concerts.
Tr.
1 at
p.
144.
She made several calls to the Matteson police, who
referred her to Tinley Park and also called Tinley Park directly.
She testified that due to the noise she could not get her son to
sleep.
Eventually,
she had to close windows and turn on the air
conditioning for the express purpose of overriding the sound.
Even then the noise often kept him up. Tr.
1 at pp.
133-134.
The July 20, 21-23,
and 29 concerts were very loud, with
similar impact within her home.
The July 21-23 concerts were
“very annoying to say the least”, with vocals and applause
audible.
The July 29 concert was very loud;
the same performer
sang on July 30, but “wasn’t that loud.”
Tr.
1 at pp.
134—135.
Ms. Panos then concluded that “they can turn it down if they want
to.”
Tr.
1 at p.
135.
On July 29 the noise distracted her from
working on the computer and she called to complain.
Tr.
1 at p.
136.
In August she found the sound was lower, but also said that
she believed the continuing sounds,
though annoying, were not
going to stop.
Q.
There are some areas here,
some dates where
you’ve made no reference,
is it fair to say
or is
it your statement that there were no
sounds coming?
A.
No.
There were sounds,
it’s just that ——I was
quite angry during the whole season.
It ruined my summer, and you just got to the
point where you were sick of making
complaints and phone calls and you accepted
it as a way of life.
I do admit that the sound was lower during
August, but I heard
--
definitely heard,
there was some country western music going
on,
I don’t know who was there, but
I could
hear it was country western, and
I gave up
literally.
Tr.
1 at p.
137.
12
1—596
19
Mr. Mark Boyd lives with his wife in the Woodgate
subdivision in Natteson, where he has resided since May,l988.
He
testified that the June
2 concert was extraordinarily loud.
From
8:30 until 11:00 p.m. he and his wife heard a bumping, bass noise
while watching television with the windows closed.
They also
heard it outdoors in the neighborhood. They drove to Tinley Park
to the Theatre to confirm the noise.
He and his wife called the
Matteson police.
The Matteson police suggested they call the
Tinley Park police.
The Tinley Park police said they had to
physically come over to file a complaint,
so they did.
But,
their complaint was not recorded on a formal document.
Two weeks
later there was no record or recollection of it by the Tinley
Park police office, the watch commander or the officer they spoke
with.
Tr.
1 at pp.
142—143.
Mr. Boyd found the noise very irritating.
On June
3 he and
his wife heard lyrics,
conversation, crowd noise, guitar music
and the bass.
He again called both police departments and drove
to the Theatre and confirmed the source of the sound.
Tr.
1 at
pp.
146-147.
On June 2~he had a similar experience although the
noise was less loud.
He filed another complaint with the
Matteson police.
He was again disturbed by the July
4 concert,
which was louder than the June 2 concert but not as loud as the
one held on June
3.
He again confirmed the sound by driving to
the Theatre.
He also found the noise excessive for performances
held July 21,
22,
23,
29,
and 30, August 26, and October 4—7.
He
stated that the sounds were louder than sounds from nature and
from traffic,
and explained the interference with his life as
follows:
We had a deck built last summer off my living room, we
had a picture window, we purposely knocked out the
window, put French doors and
a deck so we can enjoy the
evening,
and it was irritating to sit on a deck and
hear music especially when we first got into the
neighborhood, we liked how quiet it was, and now you
hear all the music and noise when you’re sitting
outside and when you’re inside.
We shut the windows and turned the air conditioning on
once we got in, and you can still hear it.
*
*
*
...the sound is way too loud for the area,
I think it
reduces my enjoyment, especially of the area
——
the
backyard that
I built,
enjoying my backyard and
enjoying my house.
Tr.
1 at pp.
149,
151.
12 1—597
20
Mr.
Boyd added that he found it insulting when a house guest
commented on the noise level from the Theatre in Mr. Boyd’s home.
Mr.
Boyd noted that the noise “seemed to quiet out some” over the
summer.
Tr.
1 at pp.
152-153.
Ms. Deborah Perry has lived in the Woodgate subdivision in
Matteson for
6
1/2 years.
She resides with her husband and three
children, aged seven, nine and eleven.
Her husband is a Matteson
Village Trustee and she has served on the Board of Education for
Matteson.
She experienced unreasonably loud sounds beginning on
June
3, both outside and inside with the windows closed and air
conditioning on.
Tr.
1 at pp.
156-157.
She heard the noise most
on the second story.
In their bedroom the sound interfered with
watching television.
She also felt the bathroom wall vibrating.
Tr.
1 at p.
158.
On June 27, the noise also was unreasonably loud to her.
She testified that the impact each night was that “we would have
residents calling the house all during the night with complaints
and what they should do”.
Also, her children ticould not sleep
because of the noise level.”
Tr.
1 at p.
159.
They received
“several complaints on any given concert night” except when they
were out of town in August.
Tr.
1 at p.
159.
When asked about any other dates of excessive noise,
Ms.
Perry said,
“In fact,
it would be easier to select the ones we
really didn’t hear”.
Tr.
1 at p.
160.
She noted that the July
20 concert was very loud.
The July 21,
22,
23,
26,
29,
30
concerts were also unreasonably loud.
Tr.
1 at pp.
162-163.
The
August 12 concert “faded in and out” but was unreasonable to her.
The September
1 concert was also heard in the house, with windows
shut and air conditioning on.
Octoberfest, October 4—7, was also
very loud, with October 4 being the loudest of those four nights.
Regarding the sound on other concert nights,
Ms. Perry stated:
....there may be one or two nights that we didn’t hear
anything, but I could not tell you what they were, but
for the majority of the time, we just about heard every
concert that took place during the summer months.
Tr.
1 at p.
164.
Mayor Welch of Country Club Hills
(“CCH”) testified
extensively at hearing that the problem is ongoing,
involves
serious safety issues, and has not been adequately resolved by
the Theatre.
See Tr.
1 at pp. 79-113;
cross examination at pp.
114—124.
He indicated that he could not cite the specific dates
when the Theatre’s sound emissions caused significant problems
for residents or himself.
Tr.
1 at pp.
82,
112,
123.
Rather, he
discussed the noise and complaints generally, and referred to the
problem as constant.
Tr.
1 at p.
116.
Counsel for complainants
12 1—598
21
specifically chose not to mark Exhibit A with the few dates Mayor
Welch described as noisy
(June 2,
3,
27), preferring to use that
exhibit solely for individual residents who were testifying.
Tr.
1 at p.
83.
Beginning with the concert on June 2,
1990 the CCH City
administration received complaints from the south end of the
City.
Mayor Welch also received complaints at home.
Tr.
1 at p.
83.
“I think what occurred was that most people, you know,
said,
well, this is just the first time and maybe they got to adjust
their speakers, things like that.”
Tr.
1 at p.
84.
However,
Mayor Welch’s testimony clearly points to an escalating problem.
He stated that the June
3 concert “blew us away” and the June 27
concert was “really loud.”
Tr.
1 at p.
85.
When asked of other
incidents, Mayor Welch testified that he personally experienced
the theatre’s sound emissions “over the period of all the
concerts.”
Tr.
1 at p.
87.
Mayor Welch noted that his city contains about 16,000
residents, of whom 8,000
—
9,000 persons live south of 183rd
Street.
Tr.
1 at p.
87.
This
is the area where sound problems
seem to most affect the community.
Besides hearing excessive
noise at his home on 187th, Mayor Welch noted that he found that
the sound was noticeable or many complaints came from near 1)
Flossmoor and Crawford,
1) Vollmer and Ridgeland in Natteson, and
3)
Cicero and Flossmoor.
See Tr.
1 at pp.
86,
108,
115.
Mayor Welch described how his experience of the noise
contradicts the Theatre’s experience with taking decibel
readings:
Q.
Did you meet on any later occasions with
Hartman and the other Mayors?
A.
The other Mayors
I meet all the time,
physically at the Music Theatre but we talked
about this quite often.
Mike Hartman,
I actually had him to my house
for one night.
Q.
Was that a night when there was a concert
going?
A.
Yes, because he said that they weren’t
getting
--
they had been out that evening
taking decibel readings and they weren’t
getting anything, and
I said come to my home.
He came to my home and stood in the driveway
and heard the sound as clear as
if you were
121—599
22
standing
——
just about as clear if you were
at the concert.
The words were legible and
so forth.
Tr.
1 at pp.
104—105.
Mayor Welch also testified that the magnitude of the noise
problem required his continuing attention and became a source of
frustration for the community and for him personally:
Well,
I’ve been out with Mr. Hartman.
I’ve been out
with his sound engineers on several occasions.
I’ve
hollered at Mike,
and Mike’s tried to work with us.
It became a personal frustration especially when you
get calls at home from the people in the community that
are frustrated with it.
To be quite honest with you,
I am like everyone else,
I
would like to enjoy my weekends, and it came to the
point during the summer that
I had to sit around and
make sure everyone was all right,
so there was a number
of times that Mike will tell you that
I was very upset
with this whole situation trying to work it out.
Tr.
1 at pp. 95-96.
Mayor Welch also testified on cross examination that the problem
“was pretty constant throughout the summer” and did not lessen.
Tr.
1 at
p.
116.
He further stated:
Our complaints went down only because our people felt
we could not do anything about it,
and
I made public
speeches and privately told the people that we were
working with the theatre developers and the Village of
Tinley Park in trying to correct the situation bought
some time.
Tr.
1 at
p.
116.
Mayor Welch participated in driving around Natteson and
Country Club Hills to investigate the noise from the Theatre.
Regarding one night,
Mayor Welch testified that the decibel
readings “weren’t that bad, and it was muffled.
Of course in
this area, you could hear it all the time.
Tr.
1 at
p.
108.
“This area of Matteson, south of Vollmer and east of Ridgeland”
heard the noise “pretty much all the time.
.
.
You can hear it
pretty well.”
Tr.
1 at p.
108.
Mayor Welch personally heard the
sounds
in Matteson more than once,
though sometimes the noise was
not a problem,
as on the evening a videotape was taken by Theatre
personnel.
Tr.
1 at
p.
108.
121—600
23
Mayor Welch discussed safety as a critical aspect of his
concern that the noise problem be resolved.
He noted that he met
early
in the season with the other two Mayors and the Theatre’s
Mike Hartman for this reason.
Q.
What precipitated this meeting out there?
Why did you get together?
A.
Because of the number of complaints we had
from our local residents.
It’s a very concerning thing to me to make
sure our life safety issue would be met, life
safety in that there was one concert that our
staff will talk about where
we
actually had
so many phone calls into our police dispatch,
physically we couldn’t have gotten police out
because the phone lines were tied up.
Country Club Hills
is like many cities in the
suburbs, we have four or five incoming lines
in a police department,
and generally they’re
adequate for standard needs.
They become clogged so to speak when you have
a tornado or major incident, you know,
for
instance,
if you had a plane crash,
a major
fire where people are going to call and
asking information.
But in this case for almost a solid hour we
had constant calls from our residents
complaining about the noise,
and what we
tried to do as an education program with our
residents in that we asked them to call the
next d~your City Hall and make those
complaints at that time to alleviate tying up
our police lines.
Tr.
1 at pp. 99—100
(emphasis added).
In closing, Mayor Welch clearly indicated that as of the
December 10,
1990 hearing date, he believed that the Theatre had
not adequately eliminated the problem and should be required to
do so.
I think what I would like to say to the Board
is that
what’s got to be done here is the theatre people have
to get down to business and deal with the problem.
12 1—601
24
I think it’s wonderful with Mike Hartman coming out and
discussing things with us, but I have not seen one
physical change in the facility that would alleviate
this problem.
When it
caine on early on in the season as with the
traffic, to give you a comparison,
the traffic, we had
problems with it in the beginning, we worked it out,
and that’s what we’re supposed to do, we’re supposed to
work together, but I have not seen them work this
problem out.
And the problem is not adjudicated yet, it’s still a
problem,
and we’ll deal with it next year a lot firmer.
Tr.
1 at p.
113.
Testimony at Hearing on Behalf of Theatre
Respondents assert that “whatever problems local residents
may have initially experienced when the Theatre opened,
those
problems have been and will continue to be dealt with effectively
and promptly by the Theatre’s management.”
Resp.
Br.
at
p.
5.
The Theatre presented witnesses who claimed the noise was not
unreasonable and witnesses who discussed past and potential
solutions.
Mr. Michael Hartman is the general manager of the Theatre.
He testified that he has worked for the company that manages the
Theatre for 4½ years,
during which time he has worked at
facilities in several states.
Tr.
2 at pp.
293—294.
Mr.
Hartinan described the configuration of the Theatre,
noting that the stage faces directly east toward the forest
preserve.
Tr.
2 at p.
296.
The Theatre has 650-700 part-time
employees,
who live in the south suburbs.
Mr. Hartman stated
that a large portion of an estimated 475,000 patrons also came
from the south suburbs.
Tr.
2 at pp.
298-299.
Mr. Hartman clarified that Tinley Park used the Theatre’s
parking lot, not the stage,
for Octoberfest.
Tinley Park did not
use the Theatre’s sound equipment or involve the Theatre in
planning the event.
Tr.
2 at pp.
299-300.
Mr. Hartman explained that the Theatre received noise
complaints and attempted to be very responsive.
He went outside
the Theatre
9 times to monitor sound.
He thought the Theatre’s
Steve Mccarthy made 25-27 such trips.
Tr.
2 at pp.
300-301.
The
trips varied among locations
in Matteson, Country Club Hills, and
Tinley Park.
He stated that “our first stop was always at
Volimer and Red Barn Road”
in Matteson.
Tr.
2 at p.
303.
Mr.
121—602
25
Hartman testified that only once did he hear anything and passing
cars were louder than what he heard.
There was only one instance in the Matteson area where
I heard anything, and that was at the
--
at Red Barn
Road, and
I can’t recall which show it was.
I think it
was for Aerosmith, but I’m not for sure,
and that was a
very faint noise,
and I quite honestly had to stop my
car to hear it.
Tr.
2 at
p.
303.
Mr. Hartman also testified regarding a videotape which he
made and which was submitted at the Board’s hearing.
Tr.
2 at
pp.
307-313.
He
indicated that the tape recording represents the
typical events of the Theatre’s sound monitoring trips.
Mr. Hartman indicated that the performers bring their own
equipment and staff,
including production and sound technicians.
Tr.
2 at pp.
318-319,
321.
He stated that the Theatre’s own
sound equipment is positioned at the catwalk level, which is set
out from the stage facing the lawn.
Tr.
2 at p.
322.
The
speaker system includes 26 speakers,
aimed at a downward slope
pointing toward the lawn seating.
Tr.
2 at pp.
324-326.
The
production manager employed by Tinley Park Jam determines where
and how the performers place their equipment.
Tr.
2 at 329-330.
Mr. Hartman identified Mr.
Buddy Sokolick as the person charged
with these duties.
Tr.
2 at p.
231.
Mr. Hartman testified that sound experiments were made to
resolve any sound problems.
These included repositioning the
speakers and working with equalizers.
Tr.
2 at pp.
335-336.
Mr.
Steve Mccarthy, the Theatre’s head technician for the
audio department, testified extensively regarding the Theatre’s
sound monitoring and control efforts.
Tr.
2 at pp.
338-408.
He
oversees the set—up and installation of the performers sound
equipment and supervises the maintenance and operation of the
Theatre’s sound system,
“the lawn system”.
Tr.
2 at p.
339.
He
has approximately
10 years of experience in the field.
Mr. Mccarthy testified that each performer has their own
equipment, and that this equipment varies significantly.
Tr.
2
at p.
340.
Each performer has particular “fixed” ways of
presenting their show,
and “within those parameters,
we can alter
it one way or another to accommodate our space”.
Tr.
2 at p.
341.
Mr. Mccarthy described his customary recommendations
regarding placement of the performer’s equipment as follows:
Some general notes
I give them.
We have discovered
through testing and experimenting, we have found when
we hang speakers high in downward firing into the
121—603
26
audience we get the best sound coverage, and I suggest
to them they hang their
--
when they bring in their
main speaker systems, we try to get it elevated as high
as we can over the audience, but that’s not always
possible because it can cause sight blocks depending on
the kind of show that they have.
Many shows have
a lot of scenery, things like that,
they can’t hang the speakers quit(e)
as high because it
will affect the way the stage looks,
it might block the
view from the sky boxes, any affect what the lighting
-
-
how the lighting will look to the audience.
Tr.
2 at pp.
341—342.
Mr. Mccarthy noted that the actual stage is below ground
level and the bottom of the speakers would be located usually
around 15
-
20
feet above the stage.
He stated that the speakers
are hung at about the height of the berm around the Theatre,
facing about the middle of the hill.
He added that sky boxes
above the berm obstruct sound from escaping from the Theatre. Tr.
2 at pp.
342—343.
Mr. Mccarthy described the routine practice of doing sound
checks within the Theatre in the afternoon before the concert.
He indicated that he uses a sound meter, that uses an “A
weighted” decibel scale.
Tr.
2
at pp.
344-348.
He takes
measurements from various points,
including a “mix position”,
in
the center of the theatre about 125 feet from the stage,
and from
the top of the berm.
Tr.
2 at pp.
344—346.
He believed that
this latter location provided an indication of the sound levels
radiating from the Theatre.
Tr.
2 at p.
346.
Mr. Mccarthy also took sound readings outside the Theatre
which were summarized in Respondent’s Exhibit E.
Tr.
2 at pp.
347-370.
Respondent’s Exhibit D marks the locations at which Mr.
Mccarthy monitored sound levels.
These readings do not reflect
the Board’s numeric regulations for sound, but rely on the A
weighted decibel scale.
See also Tr.
2 at pp.
384—394,
402—403.
Mr. Mccarthy also detailed the process by which the
performers set up their equipment.
He noted that these “road
shows” have a predetermined pattern for setting up equipment and
that testing is done after this set up.
Tr.
2 at pp.
375-381.
Mr. Mccarthy discussed the Theatre’s efforts in
repositioning the speakers.
Tr.
2 at pp.
393-401.
He expressed
his belief that by late summer the speaker positioning was near
optimal conditions.
Mr.
Buddy Sokolick, the Theatre’s production manger,
works
with all aspects of staging each performance,
including labor,
121—604
27
staging, transportation, catering, sound and lights.
Tr.
2 at
pp. 410,
411.
In addition to describing the Theatre’s progress
with redirecting the sound,
Mr. Sokolick testified regarding the
changes made since the close of the concert season.
Tr.
2 at pp.
411—425.
Q.
There’s also been testimony about the berm or
the lawn portion.
Can you describe the shape
of that lawn portion?
A.
Well,
that’s been since
(sic) changed since
the end of the season now.
Originally we had the lawn
--
I have this
--
mean this is part of the ongoing changes that
we’re constantly experimenting with.
The lawn had basically settled, you know,
for
the season.
Once you’re into the season,
there’s nothing we can do with the lawn until
the season
is over because it takes a whole
season for the grass to retake
it.
As the lawn had settled throughout the season
it turned out that the center of is almost
had like a belly type affect so it like
bubbled a little bit in the middle.
What we’ve done in the last two months is we
have gone back and changed the lawn
configuration around.
It’s actually higher
in the back now.
It’s two, three feet higher at least in the
back now, and it’s more of a bowl shape
(e) ffect.
So,
I mean,
again any sound that might be
emanating out of there would go in a straight
up direction,
but the majority of it based on
the bowl shape effect will go and stay into
that.
Q.
When was this modification to the hill made?
A.
In the last six weeks.
Q.
Would that be after the completion of the
summer concert schedule?
12 1—605
28
A.
Oh, completely after, yes.
We were
completely shut down at that point.
Tr.
2 at pp. 418—420.
Mayor Edward Zabrocki has been Village President or “Mayor”
of Tinley Park since 1981.
He stated that the Theatre’s property
was annexed to Tinley Park by ordinance dated October 25,
1988.
Tr.
1 at p.
227.
He noted that the annexation agreement requires
the Theatre to monitor and try to maintain good sound control.
Tr.
1 at
p.
228.
He indicated that the Theatre has cooperated
with Tinley Park and that the Theatre took some measures to
reduce noise in late summer.
He cited changing the angles of the
speakers as one example.
Tr.
1 at
p.
229.
Mayor Zabrocki
testified that the Theatre has brought significant economic
benefits,
including tax benefits and opening the area for future
development of approximately 500 acres for new commercial and
industrial development.
Tr.
1 at pp. 230-233.
Mayor Zabrocki stated that because of complaints he toured
the area to monitor sound on about
12 occasions, beginning around
July
2 or
3.
He heard nothing on his first such trip, and on
other occasions found that background noise from cars, trucks and
airplanes was louder.
Tr.
1 at pp.
235-236.
He did not find the
noise unreasonable or irritating.
Tr.
1 at p.
236.
Mayor Zabrocki commented that Tinley Park received about 45-
50 complaints,
primarily through the police department.
Tr.
1 at
p.
245.
He said that he observed two trends:
One, they got less as the summer went on and, secondly,
we got probably a dozen to fifteen complaints from
folks who identified themselves from Natteson on nights
there were no concerts,
and that came through our radio
department.
Tr.
1 at
p.
237.
On cross examination Mayor Zabrocki clarified that Tinley
Park did not keep a log of dates when there were complaints but
no concerts and that he asked his staff whether this had happened
when he was subpoenaed to testify.
He also stated that he could
not detail the time of year,
groups, or performers when this
happened.
Tr.
1 at p.
237-239.
complaints dropped off gradually
during the summer, notably after August
2, with a couple of
“blips”
of numerous complaints,
such as on July 21,
22, and 23.
Tr.
1 at p. 246—247.
121—606
29
On the third day of hearing, Linda Chinni of Matteson,
(Tr.
3 at p.
450) Rosemary Winkler of Matteson (Tr.
3 at p.
457), and
Betty Boskey of County Club Hills testified on behalf of the
Theatre that each either heard no sound emissions or found the
levels faint or unobjectionable.
Ms.
Linda Chinni lives in the Cricket Hill subdivision of
Matteson with her husband and sixteen year old child.
She has
lived there for 16 years.
She noted that she lives next door to
Mr. Landini
(a witness for Matteson) who sued Mr. and Mrs. chinni
in connection with an accident at his home in 1982.
That matter
is still pending according to Mrs. Chinni’s testimony.
Her
husband is employed by the Theatre in the summer,
and was at
every concert.
Mrs.
Chinni personally attended about fifteen,
or
approximately half,
of the concerts.
Tr.
3 at pp. 450-454.
Mrs. chinni did not experience a noise problem at her home
on those nights when she did not attend the concerts.
She stated
that her windows are always open and that she was often in her
yard at night.
Tr.
3 at p.
451.
In particular,
she attempted to
hear the concert of July 20 by going out into her yard and was
unable to hear it.
Tr.
3 at p.
452.
She indicated that she
lives
2
—
2.5 miles from the Theatre and she
is “very excited
it’s this close”.
Tr.
3 at pp. 454—455.
Ms. Rosemary Winkler has lived in the cricket Hill
subdivision in Matteson for 13 years.
She has two children
living at home who are seventeen and twenty.
They reside within
one block of Mrs. Chinni and Mr.
Landini.
Tr.
3 at pp.
454-458.
Ms. Winkler did not hear any noise from the Theatre either
in her yard or when in her home with the windows and patio door
open.
Tr.
3 at pp.
459,
461.
She sometimes hears and feels
vibrations from cars going by on a nearby road.
Tr.
at pp. 459—
460.
Her daughter attended one or two concerts.
She also drove
around with her daughter twice, on June
3 and June 27 according
to her recollection, to see if they could hear anything.
However,
she only heard the sounds “practically in front of the
Theatre”.
Tr.
3 at pp.
459-465.
It also appears from the record
that on various dates which she could not remember, Mrs. Winkler
drove to a convenience store in the Woodgate subdivision of
Matteson and did not detect concert sounds.
Tr.
3 at pp.
463,
465.
Ms.
Betty Boskey, has lived in Country club Hills for 18
years.
She resides with her husband and three sons.
One son is
employed at the Theatre.
Tr.
3 at pp.
469-470.
Mrs.
Boskey did
not hear music in her home with the windows open.
On July 29 or
30 or August
1 or
2, she went outside to try to hear the concert
sounds.
She could only hear it faintly if she walked into the
middle of the street and asked the children to be quiet; and she
found traffic, car radios,
dogs, crickets, and other neighborhood
12 1—607
30
sounds to be louder.
Tr.
3 at pp.
471-472.
The music did not
interfere with her family’s lives.
Tr.
3 at pp.
471-473.
On cross examination Mrs. Boskey stated that she had heard
that on some evenings hundreds of other Country Club Hills
residents registered complaints regarding the noise.
Tr.
3 at
p.
473.
Mr.
Jerry Mickelson is a general partner of the Theatre.
He
is also an owner and officer of Tinley Park Jam, which books and
promotes the concerts and performs other services to the Theatre.
Tr.
3 at p.
476.
He stated that he and his partners have been in
this business for 19 years.
Tr.
3 at p.
477.
Mr. Mickelson
testified that during the summer he was aware of complaints from
the neighborhoods regarding music.
He did not recall that any
complaints extended to the sound checks performed
in the
afternoon before the concerts started.
Tr.
3 at p.
507.
Mr. Mickelson indicated that they considered locating the
subject facility in either Tinley Park or Country Club Hills.
He
testified that both municipalities wanted the facility to be
located within their respective borders.
Tr.
3 at pp.
478-479.
He stated,
“Mayor Welch did a lot of things to try and entice us
to go there,
whether it be with tax increment financing that he
was promising or revenue bonds, he was bending over backwards to
try and get us there.
Tr.
3 at p.
479.
Mr. Mickelson identified Respondent’s Exhibit E as a summary
of the sound readings for each concert for which the Theatre’s
staff took decibel readings as part of their sound monitoring
efforts.
Tr.
3 at p.
482.
Mr. Mickelson had directed that the
sound be monitored in the neighborhoods and around the Theatre.
His staff added the descriptive paragraphs which accompany the
numeric records.
Tr.
3 at p. 482.
Mr. Mickelson also stated that his group has always
attempted to minimize any inconvenience to the neighborhoods.
He
asserted that no Board action is necessary since they took action
on their initiative and would continue to do so.
Tr.
3 at pp.
483—485.
On the subject of scheduling concerts, Nr.Mickelson
commented on the apparent lack of
a pattern as to which days of
the week concerts would be scheduled.
He indicated that the
performers choose the days they want to play.
Additionally,
he
stated that concerts could not be scheduled for every night of
the season.
He indicated that although 32 groups performed in
1990,
the facility could schedule 40 to 50 performances.
Their
“season” for concerts is generally Memorial Day through Labor
Day. Tr.
3 at pp. 487-493.
121—608
31
Mr. Mickelson testified regarding the Theatre’s ability to
control the noise levels from the performers’
own speaker systems
as follows:
Q.
And each group that came
in, once the concert
began, the concert as far as the sound was in
the exclusive hands of those technicians, not
your people?
A.
No.
I would disagree with that.
Q.
How would you disagree with that, what way?
A.
Because when they do their sound checks in
the afternoon,
they take
-—
Mr. Sokolick or
Mr. Mccarthy takes sound level readings and
will determine whether they think it’s too
loud or not too loud,
and
if it’s
--
if the
group wants
to play too loud, we make a
demand that they turn it down and do it under
what we feel is a satisfactory sound level.
Q.
Do you agree with Mr. Sokolick that when that
sound check was made in the afternoon before
the concert began
it was made exclusively
within the theatre and not outside in the
other communities or in the parking lot, but
within the theatre?
A.
It was made within the theatre under the
guidelines of knowing that
--
how loud it
will take in the theatre to bleed outside the
theatre.
In other words, they know if it’s above a
certain level,
it’s going to bleed outside
the theatre,
so they keep it within the level
they feel it doesn’t bleed outside the
theatre.
Tr.
3 at pp. 493-494
(emphasis added).
Mr. Mickelson also testified that,
since the close of the
concert season, physical changes were made in the Theatre.
Specifically, the Theatre changed the berm to add a three foot
increment of height at a cost of $80,000
-
$100,000.
Tr.
3 at p.
499,
503.
Additionally, he confirmed that throughout the season
the Theatre adjusted sound directions, equipment and
configurations of the speaker systems.
He stated that this
latter process will continue, albeit a step at a time,
if there
are problems.
Mr. Mickelson suggested that the reduced number of
121—609
32
complaints resulted from the changes already made by the Theatre.
Tr.
3 at p.
505.
commenting on whether the changes resulted in
the “optimum ‘position for noise suppression”, Mr. Mickelson
testified:
Q.
But we can agree that the step by step
process that you addressed a second ago isn’t
completed?
A.
Well,
I can’t say it’s not completed.
I
think we have to see what happens with the
change we made.
It was a major change with some major dollars
going into making that change.
We’ll have to
get back on there next year and see what that
change did and how it affected everything
else,
and we hope that it made it a lot
better.
Tr.
3 at pp.
500—501.
Various members of the public also testified briefly on
behalf of the Theatre.
Tr.
3 at pp.
507-514.
Mr.
Lyman lives on
Sayre Avenue in an unincorporated area about 3—1/2 blocks north
of 183rd Street.
He testified that he found the music
unobjectionable.
He also stated his belief that certain
constitutional issues were involved.
Ms. Rosemary Winkler, who
testified earlier, asserted that the complainants’ concerns about
the quality of life are inappropriate.
Tr.
3 at p.
508.
Ms.
Audrey Boskey,
a Theatre employee who resides in Park Forest,
stated that she could only hear “muffled and dim” sounds when she
parked on the street outside the Theatre’s gates.
Tr.
3 at p.
509.
Ms. Kim Bokosz lives on Crawford Avenue in an
unincorporated area which she said was about 1/2 to 3/4 miles off
the east end of the map used at hearing.
She testified that she
drove to the Theatre on June
3 and could hear the music there,
but not elsewhere.
Her family has not been disturbed by sounds
when her windows are open.
Tr.
3 at p.
510.
Mr.
Bob Murphy
works at the Theatre and lives in Country Club Hill at a location
about 1/2 mile off the north end of the map used at hearing.
He
could not hear the noise at his home.
Tr.
3 at pp.
511-513.
Mr.
George Winkler lives
in the Cricket Hill subdivision of Matteson
and is not bothered by the sounds from the Theatre.
Tr.
3 at
p.
513.
Ms. Mary Beth Muckien works at the Theatre and testified
that on 4 nights she could not hear any noise
in front of the
Theatre at the intersection of Ridgeland and Flossmoor Roads.
Tr.
3 at p.
514.
12 1—610
33
Findings of Frequent and Severe Interference
The threshold issue
in any noise enforcement proceeding is
whether the sounds have caused some type of interference with the
complainants’ enjoyment of life or lawful business activity.
Interference is more than an ability to distinguish sounds
attributable to a particular source.
Rather, the sounds must
objectively affect the complainants’ life or business activities.
(See e.g., Kvatsak v.
St. Michael’s Lutheran Church, PCB 89-182
(August 30,
1990); Zivoli v. Dive Shop,
PCB 89—205
(March 14,
1991).)
Based on the testimony above,
the Board finds that sound
transmissions from the Theatre’s property caused an interference
with the enjoyment of life
in Matteson and in Country Club Hills
on numerous occasions.
The Board notes, however, that not all of
the testimony supports a finding of interference on every day of
every concert.
Testimony to the effect that the sound
constitutes an interference solely because it could be heard is
insufficient to support a finding beyond a “trifling
interference, petty annoyance or minor discomfort.”
Wells
Manufacturing co.
v.
PCB,
73 Ill.2d 226,
383 N.E.2d
148,
150
(1978)
The Board finds that the testimony does demonstrate the
necessary interference on at least some of the concert or
Octoberfest dates involved.
Of the approximately 25 dates for
which there was testimony of loud sound,
the record in this
particular case clearly supports a conclusion that the
interference was frequent and was severe,
in Matteson,
on at
least
12 dates.
These include at least the following dates: June
2,
3; July 20,
21,
22,
23,
29,
30; October 4,
5,
6, and 7.
In
Country Club Hills the record also establishes that the sound
transmissions caused frequent and severe interference with the
enjoyment of life.
The testimony is less clear here with respect
to the individual dates on which this occurred, but it
is clear
that the interference occurred at least on June 2,
3,
and 27 and
other dates throughout the concert season.
The Board notes that
although the Octoberfest was not a Theatre concert, the Theatre
allowed the event to take place on its premises, and the Board’s
regulations cl?~arlyprohibit causing or allowing the emission of
sound beyond the property’s boundaries.
See 35 Ill. Adm. Code
900. 102.
Section 33(c)
Factors
As the Ferndale Court noted,
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
121—611
34
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 economic benefits accrued by a non-
complying pollution source because of its
delay in compliance with pollution control
requirements; and
6.
any subsequent compliance.
Section 33(c)
of the Act.
As stated earlier, the “reasonableness”
of the noise
pollution must be determined in reference to these statutory
criteria.
Wells Manufacturing company v. Pol1~itioncontrol
Board,
73 Ill.2d 226,
383 N.E.2d 148
(1978)
;
Mystic Tape,
Div. of
Borden,
Inc.
v. Pollution control Board,
60 Ill.2d 330,
328
N.E.2d
5
(1975);
Incinerator,
Inc.
v. Pollution Control Board,
59
Ill.2d 290,
319 N.E.2d 794
(1974); City of Monmouth v. Pollution
control Board,
57 Ill.2d 482,
313 N.E.2d 161
(1974).
However,
complainants do not bear the burden of introducing evidence on
these criteria.
Processing
& Books v. Pollution control Board,
64 Ill.2d 68,
351 N.E.2d 865
(1976).
In evaluating the first of the Section 33(c)
factors, the
Board finds there is a frequent and severe interference with
sleep and normal leisure activities of numerous residents.
Television watching, reading, home computer use, outdoor
relaxation,
outdoor entertaining, adult’s sleep, children’s sleep
and police responsiveness have all been negatively impacted.
This interference goes far beyond trifling interference, petty
annoyance or minor discomfort.
The noise thus constitutes a
substantial interference with the enjoyment of life and property.
121—6 12
35
Concerning the second of the Section 33(c)
factors, the
Board finds that the Theatre provides substantial social and
economic benefits
in that it generates tax revenues, provides
valuable services, employs people, and offers entertainment to
its many patrons.
However, the social and economic benefit is
significantly reduced by the widespread negative impact of the
noise emissions from the property to the surrounding communities.
The third Section 33(c)
factor concerns suitability of the
pollution source to the area in which it is located and priority
of location.
The facility appears to comply with current zoning
uses.
The Board finds that the Theatre 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 property
1
—
2.5 miles away.
On the priority of location issue, the Board finds that
complainants have the clear priority.
The record
is undisputed
that local area residents generally,
and several complainants in
particular,
lived in the area before the Theatre’s opening in
June of 1990.
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 the speakers, and the
Theatre has implemented some of these measures.
Other methods
such as sound baffles,
fencing,
or increasing the berm height may
be possible.
However, the record
is insufficient to support a
detailed Order commanding what specific sound abatement steps,
if
any, must be taken, by what certain time,
and what steps will be
necessary to completely cure the problems.
The Theatre argues
that Matteson has not demonstrated that reducing sound levels to
some arbitrary level would not reduce audience appreciation,
causing them to refuse to return to the Theatre.
The Board notes
that the burden for Section 33(c)(4)
is not on Matteson.
Processing
& Books
v. Pollution Control Board,
64 Ill.2d 68,
351
N.E.2d 865
(1976).
Further, many nights during the season did
not produce sound complaints.
The Board must presume that sound
at those levels would satisfy audience demands as well as
eliminate sound complaints.
With respect to the fifth Section 33(c)
factor, the
record
is devoid of information on any economic benefits that may have
accrued to the Theatre because of delays in compliance.
The
Board notes that the report required by this Interim Order should
contain some information on the economic costs of compliance.
On the last of the Section 33(c)
factors, the record clearly
shows that the Theatre had not come into compliance by the end of
the 1990 season.
Although the Theatre made some alterations at
121—613
36
the close of the 1990 season, the effectiveness of the
alterations is unknown.
It is therefore not possible to conclude
that compliance was subsequently achieved.
Based on the Board findings of substantial interference with
the enjoyment of life and after consideration of the factors
listed in Section 33(c), the Board finds that noise emissions
from the Theatre are unreasonable and constitute a violation of
35 Ill.
Adm. Code 900.101 and 900.102 and Section 24 of the
Environmental Protection Act on June
2,
3,
27; July 20,
21,
22,
23,
29,
30; October 4,
5,
6, and 7.
REMEDY
As relief in this proceeding, Matteson requests the Board
order the Theatre to control the amplification of sound emanating
from the concert area so that it does not unreasonably interfere
with the enjoyment of life.
The Board notes that the U.S. Supreme Court has ruled that
the constitution does not prohibit government from regulating
noise from concerts.
Accordingly, the Court upheld New York
City’s requirement that only the city’s sound system, operated by
a City engineer, could be used for amplification in a Central
Park bandshell.
See Benjamin R. Ward v. Rock Against Racism,
491
U.S.
____
,
109 S.Ct.
2746,
105 L.Ed.2d 661
(1989):
The city’s regulation
is also “narrowly tailored to
serve a significant government interest.”
Community
for Creative Non-Violence,
468 U.S. at 293,
104 S.Ct.
at 3069.
Despite respondent’s protestations to the
contrary,
it can no longer be doubted that government
“haCs
a substantial interest in protecting
its
citizens from unwelcome noise.”
City Council of Los
Angeles v
Taxpayers for Vincent,
466 U.S.
789,
806,
104 S.Ct. 2118,
2129,
80 L.Ed.2d 772
(1984)
(citing
Kovacs v. Cooper,
supra); see Grayned,
supr~,
408 U.S.,
at 116,
92 S.ct. at 2303.
This interest is perhaps at
its greatest when government seeks to protect “‘the
well-being,
tranquility, and privacy of the home”,
Frisby v.
Schultz,
487 U.S.
at
_____,
108 S.Ct. at 2502
(quoting Carey v.
Brown, 447 U.S.
455,
471,
100 S.Ct.
2286,
2295,
65 L.Ed.2d 263
(1980))....
The Board believes, therefore,
that one available remedy
would be to prohibit use of the performer’s amplification systems
and to require the Theatre to use only its own systems to project
sound that does not create a violation of the Act.
However, the
Board will not order this remedial action at this time in order
to allow
a limited opportunity to resolve the noise pollution by
other methods.
12 1—614
37
The Board finds that the past violations provide ample basis
for requiring a program to address the noise problem.
Because of
the improvements made to the facility after the close of the last
season
(See Tr.
3 at pp. 503-504),
the Board is unable to
determine if additional remediation measures may be necessary.
Thus, the Board will require the Theatre to conduct a study of
future noise control options.
The Board will also require
meaningful and effective noise monitoring by an independent
consultant.
That monitoring can be utilized to evaluate
compliance with existing numerical regulatory limitations on
sound emissions,
and it also can be used as an effective focal
point for evaluating future sound abatement activities which may
or may not be necessary.
Here, there
is no question that the sound can be controlled.
Mr. Jerry Mickelson,
a partner in Theatre, testified that during
the afternoon sound check by the groups,
“...
Mr Mccarthy takes
sound level readings
and will determine whether they think it’s
too loud or not too loud,
and
if it’s
—-
if the group wants to
play too loud we make a demand that they turn it down and do
it
under what we feel
is a satisfactory sound level.”
See Tr.
3 at
493—494;
see also Tr.
2 at pp.
344—345 and pp.
380—381.
While
other methods of reducing sound impacts are discussed in the
record,
this method can be employed until
a more particular
resolution is implemented.
Turning down the sound amplifiers
is a method of control,
but does not identify the amount of control needed.
The Board
believes that the monitoring of sound levels pursuant to the
Octave Band Sound Pressure Levels of 35
Ill. Adm. code 901.102 (a)
and
(b), measured in conformity with 35
Ill.
Adm. Code 900.103,
will provide an appropriate temporary measure until the
completion of the interim evaluation.
In making this
determination, the Board notes that
it is not imposing any new
sound control obligations on the Theatre.
The sound limitations
of Section 901.102 already apply to the Theatre independent of
this proceeding.
The Board is simply reiterating those
requirements and providing an obligation to monitor and report so
that compliance with 35
Ill.
Adm. Code 901.102
is clearly
demonstrated.
Additionally, the Board believes that appropriate sound
monitoring is
a necessary component of both the interim
compliance obligation and the requirement for planning long term
sound control options.
The Board will require the Theatre to
retain an independent consultant to monitor the sound
levels.
He
or she must attest to the accuracy of the monitoring data during
the full concert time frame from now until the final report to
the Board.
The Board will provide a current copy of the noise
regulations to both parties so they can ensure that future
measurements are made in accordance with the one—hour Leq
12 1—615
38
methods.
The sound monitoring will commence with the first
concert and continue for each sound producing event until further
order of the Board.
The Board will mandate at least two monitoring locations,
one in Matteson and one in Country Club Hills.
The Board will
not require the Theatre to monitor at more than two locations,
but the Theatre may choose more locations in consultation with
Matteson if it so desires.
The Board will allow some discretion
in choosing the monitoring locations, anticipating that a
locations will be chosen to demonstrate the areas of most severe
impact.
If the parties do not agree on the locations, the
consultant shall choose locations to reflect the most severe
impact (including consideration of elevation).
These may be
chosen after an initial noise survey conducted by the consultant
during the first concert.
Once chosen the locations shall not be
modified.
Full and complete access to all data shall be afforded
Matteson within 72 hours of data recording.
The record
identifies the area of most complaints
(See Tr.
2 at pp.
273-
274)
in Matteson, and the Board will require at least one
monitoring location in that area.
Serious consideration shall be
given to locating the sound measurement device on the property of
one of the complaining witnesses.
Additionally, the Board
believes that monitoring is appropriate in at least one other
location, Country club Hills.
The 153 noise complaints from that
area
(See Tr.
2 at p.
387) mandate that the Board ensure
improvements in Matteson do not simply exacerbate the impact in
Country Club Hills.
The same criteria shall apply to selecting
the monitoring location in Country Club Hills,
i.e.,
either
agreement of the parties or
a location chosen by the consultant
to reflect the most severe impact.
The final report on future noise control options should be
prepared by a competent individual or firm that is independent of
the Theatre.
It shall be filed with the Board and served on the
Complainant not later than August
2,
1991.
The final report
should contain the results of all sound monitoring (including
conditions at the Theatre during the sound monitoring period)
and
should evaluate all methods of noise control
(not just those
already discussed).
Each control option should include the
anticipated noise reductions in both Matteson and Country Club
Hills, the cost of implementation and an estimate of a reasonable
time for implementation.
The final report shall make a
recommendation about what additional actions,
if any, are
required to abate any noise pollution problems caused by
concerts, Octoberfest,
or any other sound producing event at the
Theatre.
In addition, the final report shall evaluate any appropriate
and cost effective methods for continuous long—term sound
monitoring
(i.e.
after August
2,
1991)
that will accurately
record sound levels in communities that are impacted by the
121—616
39
Theatre.
The purpose of this evaluation
is to establish a
protocol for obtaining continuous measurements of sound levels in
the impacted communities during all future sound producing
events.
The protocol should specify the locations, the
measurement methodology to be used,
and the instrumentation
needed to obtain direct measurements at a receptor location in
the impacted community.
In lieu of direct measurements at a
receptor location in the impacted community, an alternate
location (at or closer to the Theatre) may be chosen.
An
alternate location may be chosen only
if it can be shown
(by the
consultant preparing this report) that sound level measurements
at the alternate location will serve as a suitable and
appropriate surrogate for evaluating the impacts to the impacted
communities from sounds emanating from the Theatre.
Because today’s Order is interim in nature, the Board will
continue to have jurisdiction in this matter pending receipt of
the final report.
The Board anticipates that citizen noise
complaints this season would be few or none because of the
physical changes already made to the Theatre and the anticipated
compliance with the numerical regulatory limitations in the
impacted communities.
Should Mattesori believe that severe sound
disruption continues unabated and that additional action is
necessary prior to the final report,
it can petition the Board
for additional interim relief as the situation warrants.
This
request may be premised either on citizen complaints of
unreasonable interference or on sound data showing numerical
violations
(either data acquired as part of the monitoring
program required today or data acquired by Matteson).
Nothing in
today’s Order is intended to discourage Matteson from taking its
own sound measurements or from recording citizen complaints.
If
Matteson disagrees with the recommendations
in the final report,
it can petition for a hearing on that report within 21 days of
the filing the final report.
Section 42
Section 42 of the Act authorizes the Board to impose a civil
penalty for violation of the Act or Board regulations.
Effective
September 7,
1990,
Section 42(h) allows the Board to consider
various factors
if a penalty is to be imposed.
These
considerations include:
the duration and gravity of the
violation,
the presence or absence of due diligence to comply or
secure relief, any economic benefits accrued through a delay
in
compliance,
the amount that will deter future violations and aid
in voluntary compliance,
and other previously-adjudicated
violations.
Ill.
Rev. Stat.
1989,
oh.
111½,
par. 1042(h),
as
added by P.A. 86-1363.
Since hearing in this matter was after
the effective date of Section 42(h),
those factors may be
considered in assessing any penalty.
See People v. Sure-Tan,
PCB
90—62
(April
11,
1991)
12 1—617
40
Here, Natteson requests that the Board impose a penalty if
the Theatre does not comply in a timely fashion.
The Board is
not constrained by Matteson’s recommendations regarding a
penalty, but will refrain from imposing a penalty at this time.
The Board will decide that issue at a later time,
and here makes
no findings on this issue.
See Brian J. Peter v. Geneva Meat and
Fish Market, PCB 89—151, March 22,
1990.
This Interim Opinion and Order constitutes the Board’s
findings of facts and conclusions of law in this matter.
ORDER
1.
The World Music Theatre,
JAN
Productions,
Ltd. and Discovery
South Group,
Ltd.
(hereinafter “Theatre”)
are found to have
violated
35 Ill.
Adin.
Code 900.101 and 900.102 and Section
24 of the Environmental Protection Act on the following
dates:
June 2,
3,
27; July 20,
21,
22,
23,
29,
30;
October
4,
5,
6,
and 7.
2.
Theatre shall retain an independent consultant to monitor
sound levels in conformance with 35 Ill. Adm. code 901.102
(a) and
(b)
as measured in accordance with 900.103 as
follows:
a)
The sound monitoring shall occur at one location on
Class A land in the Woodgate subdivision of Matteson,
mutually agreed upon by Matteson and the Theatre, or if
no agreement is reached, then the independent
consultant shall choose a locatio.n on Class A land in
Matteson within 2500 feet south of Woodgate Road, which
the consultant believes will show the most severe
impact from noise.
b)
Sound Monitoring shall also occur at one location on
Class A land in Country Club Hills, mutually agreed
upon by Matteson arid the Theatre, or
if no agreement is
reached, then the independent consultant shall choose a
location on Class A land which the consultant believes
will show the most severe impact from noise.
c)
If the Theatre agrees to additional monitoring, the
locations shall be chosen by mutual consent of Matteson
and the Theatre.
d)
At a minimum,
the sound monitoring shall commence at
least 10 minutes prior to the beginning of each concert
and shall continue until at least 10 minutes after the
conclusion of each concert.
Sound monitoring shall
12 1—618
41
commence with the first concert and shall continue
until a final order by this Board..
e)
All sound monitoring information shall be provided to
the Village of Matteson within 72 hours of the
monitoring event.
3.
Theatre shall retain an independent consultant to prepare a
final report on noise levels in the surrounding areas based
on the monitoring data and recommend potential methods of
reducing the sound impacts to preclude unreasonable
interference.
a)
The final report shall be filed with the Board and
served on the Complainant not later than August
2,
1991.
b)
The final report shall contain the results of all sound
monitoring.
c)
The final report shall evaluate all methods of noise
control
(not just those already discussed).
Each
control option shall include anticipated noise
reductions in both Matteson and country Club Hills, the
cost of implementation, and an estimate of a reasonable
time for implementation.
d)
The final report shall make a recommendation about what
additional actions,
if any,
are required to abate any
noise pollution problems caused by concerts,
Octoberfest, or any other sound producing event at the
Theatre.
e)
The final report also shall evaluate any appropriate
and cost-effective methods for continuous long—term
monitoring of sound impact on the surrounding
communities during all future sound producing events at
the Theatre after August
2,
1991.
IT IS SO ORDERED.
Board Member J.T. Meyer Concurred
I, Dorothy M. Gum,
Clerk of the Illinois Pollution Control
Board, hereby certify)that the above,.nterim Opinion and Order
was adopted on the
‘~5’~
day of
~
,
1991,
by a
vote of
7—C-~
.
Dorothy M. dunn,
Clerk
Illinois Pollution Control Board
12 1—619
