BEFO$~Jf~
~*TION
CONTROL BOARD
)
MAY032004
FRANKLIN FISHER and
)
PHYLISS FISHER
)
)
Respondents
)
NOTICE OF FILING
PLEASE TAKE NOTICE THAT ON April 30, 2004, The complainants, Ronald Stuart
and Barbara Stuart filed with the Office ofthe Clerk ofthe Illinois Pollution Control
Board, an original and ten copies ofthe attached “BriefofBarbara Stuart and Ronald
Stuart” a copy which is served upon you.
David Harding
Bobby Petrungarro
Lopez & Harding Will County States
100 N. LaSalle St. Attorney Office
Ste 1107
14 W. Jeffereson
Chic o II. 60602
t, Il. 60432
Ronald Stuart, Complainant
Barbara Stuart and Ronald Stuart
213 E. Corning Rd.
Beecher, Illinois 60401
708-946-9546
BARBARA STUART
And RONALD STUART
Complainants
)
)
)
)
PCB 02-164
STATE OF ILLiNOIS
Citizen EnforcemenuNoise
PoUjj~VonControl Board
Bradley Halloran
Hearing Officer
100 W. Randolph
Ste 11-500
Chicago,Il.6060 1
Dorothy Gunn
Clerk ofIPCB
100W. Randolph
Ste. 11-500
Chicago, Il 60601
Barbara Stuart, Complainant
THIS FILING WAS SUBMITTED ON RECYCLED PAPER
RECE~VED
r\ ri
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CLERK’S OFFICE
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MAY 032004
BEFO1f~i~J1f~1’~ 9~UTION CONTROL BO~E
RONALD STUART and
)
BARBARA STUART
)
)
Complainant,
)
PCB 02-164
)
Citizens Enforcement NOISE
V.
)
FRANK FISHER and PHYLLIS FISHER
)
)
Respondent.
)
BRIEF OF
RONALD STUART and BARBARA STUART
Complainants
Ronald Stuart and Barbara Stuart, files this brief with the Illinois Pollution Control Board,
(Board) in support oftheir complaint against Frank Fisher and Phyllis Fisher.
Ronald Stuart and Barbara Stuart requestthat the Illinois Pollution Control Board issue the
following order:
1. A cease and desist order prohibiting Frank Fisher and Phyllis Fisher, from continuing to
violate Illinois regulations related to noise emanating onto another persons property.
Specifically using any propane cannons on theirproperty.
2
Request Frank Fisher and Phyllis Fisher, to use an alternative method for bird control.
Specifically non auditory devices, causing emissions ofnoise onto another personproperty.
3. Provide stipulated penalties in the event Frank Fisher and Phyllis Fisher fail to comply
with an order ofthe Illinois Pollution Control Board.
4. Require Frank Fisher and Phyllis Fisher to post a Performance Bond to ensure that
respondent complies with any order ofthis Board.
5. Require Frank Fisher and Phyllis Fisher to immediately implement the provisions set
forth in the attached remedial action plan.
THIS FILING IS SUBMITTED ON RECYCLED PAPER
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FACTS
Frank Fisher changed his farm operation from soybean and corn in
1999 into truck farming. In 2000 he allegedly lost some watermelon crop to crows. On
8-8-01 he began using 2 gas fired propane cannons at
5:15
in the morning. Ronald Stuart
already outside with his dog heard the first shots emitting from the cannons, and so was
his dog. She bolted for the locked gate, forced her body through the locked gate, and
headed for cover under a desk in the sunroom. Within minutes ournext door neighbor
Karen comes over frantic, about what she and Ron think are gunshot sounds. Our two
boys are awaken by the sounds. Ron takes Sam to the Veterinarian, knowing she was
seriously injured. 16 hours later euthanasia was elected forhumane reasons. When
Ronald approached Frank Fishers farm that same evening, Ron was told by Mr. Fisher he
would not stop using the cannons. Ron explained how upset our neighbors were a few
days later and still Mr. Fisher said No, the cannons would stay. Mr. Fisher is one of
5
produce growers within an 8 miles radius. He testified he is the only farmerwho uses
cannons because ofthe crows and his watermelon damage in 2000. He testified the
profits go to his NephewMichael Witvoet, his niece and their family who work the farm.
“It’s a family thing, he only gives them the do’s and don’ts”. Still Mr. Fisher cannot
prove any type ofmonetary gains with using the cannons for the past three summers, he
claims not to keep records, and states at the hearing “The proofis in the pudding”,
regarding his gains. The Witvoet family lives in Cedar lake, Indiana. They obviously
don’t have to put up with the noise all day long, as we do. However, Mr. Fisher also
stated during testimony the cannons are not turned offwhile the farm hands are picking
the produce. He states they are 20 to 30 feet away from the device and not bothered.
Many attempts were made through the local officials to stop the noise, with no success.
Most farmers around here don’t know what a propane cannon is, and neither do the
public officials. Farmers simply do not use these devices in and around this area. My son
Michael has a seneural neural hearing loss diagnosed in 1999. Even when Frank knew
this information well back into the time ofcompleting ourDiscovery, he still continues to
usethese noisy outdated pieces ofnoise equipment. The cannons start running Late June
until Late October orEarly November. When in operation they start at 5:30 a.m. until the
sun goes down. They fire a blast similar to a shotgun going offat least every minute on
the minute. We are losing neighbors to this noise. The Collina family who lived west of
us for years, were tired ofkeeping their little girl Danielle indoors, this little girl of3 (in
2001) was hiding indoors thinking a manwas shooting her. They moved in September of
2002. The next owners lasted 13 months, because they were afraid the cannons would
spook their horse, like ours were. This is a very dangerous situation in which to be in.
During four months out ofthe year we subjected to physical as well as emotional
hardships, the cannons interferes with ourrecreational activities and our ability to just
relax outside to breathe fresh air. We have similar problems indoors. Our pets are
nervous, often panting, pacing and clinging to people in fear. Windows are always
closed. Our area changed from an area ofserenity and solace, a well established area is
now an area similar next to a firing range
.
It wasn’t only Ron and me upset it was many
people in this area. Finally we decided to turn to the pollution Control Board for some
help. No one not even the USDA, WS, NRCS, or the DNR claim they have control over
propane cannons. Then who is responsible forthe negative impact they have on citizens.
THESE DOCUMENTS HAVE BEEN FILED ON RECYLED PAPER
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STATEMENT
We the complainants moved into our home at 213 E. Coming Rd. on June 24, 1999.
Our Western property line is 2/10 mile from the Eastern property line ofFrank Fisher at
13 W. Corning Road. It was an area ofserenity and solace.
The Citizens Enforcement/Noise case PCB-02-164 presents testimony before the
Board of 6 witnesses. Four ofwhom reside within
2110th
ofa mile to under ¾ofa mile
from the Respondents, Frank Fisher and Phyllis Fisher, located at 13 W. Corning Rd.
There is one witness, James O’Neil ofOak Forest, Illinois who has visited our home at
213 E. ComingRd frequently, since the day we moved in on June 24, 1999. Our last
witness is Gregory Zak, sound expert of “Noise Sollutions by Greg Zak”.
AREA
First I would like the Board to know about the area we live in. the block
ofComing Road is approximately 1.2 miles long beginning at Route
One going east to a crossroad named Cottage Grove. (Maps ofthe areaare on
Complainants exhibit number two). The area consists of22 homes, all residential
resident’s who work outside the home. These particular homes sit on parcels starting at
one to ten acres. There are 3 farms, one 10
,
80 and l09acres, all having home/residents
on their farmland. With the exception ofFrank Fisher who has two homes, one being his
daughter’s Julie Barton. The ages ofthe home start around 20 years to over 100 years of
age. There are two homes under 8 years ofage belong to the Peterson Farm on the S/W
section ofComing Road and Cottage Drive. Looking at the map one can see there are
some vacant sections of land. These are either owned or rented by other farmers to grow
crops, and have no homes on them. Industrial zoning is prohibited in this area. There is
one grandfathered Industrial zoning at the JDS Union Electronic part distribution
building. There are two homes which set in front ofthis business. Also two years ago a
horse stable was built in ourarea, which is indicated on the map. There is a Church with
a cemetery. And plans are in the making for another church on a 6 acre parcel ofland to
be built directly across from the Fisher Farm, with the possibility ofa small school.
Contrary to what the Respondent thinks, I do not own or operate a kennel ofany sort.
We learned in 2002 that this area is filled with Coccidiaosis, a microscopic parasite,
coming from poultry. This can and has killed many puppies. For that reason alone I will
never have a kennel as I once had dreamed of. The risk is not worth taking.
AMBIENT READINGS
When Greg Zak came to my home on August
8th,
2002 he
took ambient readings ofthe area near my home. He observed the area, at around 12:00
noon on that weekday. He saw very little if any traffic on Coming Road. Could not hear
sounds coming from Rt. 1 (Dixie Hwy) west ofour house. He said in his report the area
is one ofa rural residential area which is very quiet. Even with the winds being around
20 m.p.h. he measured ambient readings in the average range of43.5 dBa. Greg said on a
normal day with low to no winds the reading would be in the range of33 to 37 decibels.
On this day we discussed how I was using the Radio Shack meter to which he sold me in
July of2002. I showed him where I was taking the measurements from the cannons so as
to avoid any reflective sound. He thought the area in which I took the readings was a
good place. Greg Zak’s testimony at the hearing is on
TR 196 thru
251 This includes
Direct Examination and Cross examination by Mr. Harding, respondent’s attorney. I will
include Greg’s testimony at the end ofthis statement.
LOG
SHEET It was in July, August of2002 that I recorded propane cannon sounds.
On the (Complainants
exhibit 4)
On page one ofthe Log ofCannon Sounds, I explained
the equipment used, the date and time ofmeasurements as well as the weatherconditions.
For some reason I stored this information in the computer, even though I had the 8 mm.
Tapes. The camcorder (also used by
my children that spring and summer)
was not
picking up the video portion on the 8 mm tape. This I discovered aftertaking it to a
photo lab to transfer the readings onto a VHS tape. It wasn’t until February of2004 that
the log sheet was copied from the computer.
BAD
TIME
In November my husband Ronald Stuart’s identical twin brother Donald
Stuart ,became very ill, he was diagnosed ofhaving Gall Bladder related Pancreatitis,
within 48 hours he was in ICU, fighting for his life. Already in renal failure, and on a
ventilator, we had him transferred to Rush St. Lakes Hospital in Chicago. Where Ron
and I kept day and night vigils beside him. On December 2~’at 2:05 a.m. Donald died
ofSeptic Shock. No one realizes the relationship there is when your spouse is the other
half of an identical twin. It’s like you have lost a husband. It was like he lost himself
We were doing our best then and now as I write this. Contact was made with Mr.
Halloran regarding the December 2’~tele conference which had to be cancelled. Mr.
Harding was made aware ofthe request for an extension oftime due to Donald’s death in
December. There was a teleconference in Feb. 2004, as well as anotherone the day
before the March
9th,
2004 hearing date. During the Feb.
5th
teleconference I explained to
Mr. Halloranwe were still under an enormous amount ofemotional stress because ofour
losses. Mr. Harding was in on this conversation and still asked Ron during cross
examination “how is your brother doing”
TR 130
19-24 We were very distraught by
that question. I am not seeking sympathy from the board, trust me we have had an
overwhelming amount ofsupport from friends. I am just offering a factual reasons why
important responsibilities were not attempted at this time.
It was afterthe Feb.
5th
teleconference I knew spoke to Greg Zak informed him ofme
making a log sheet ofthe cannon readings I had in the computer to present to the Board.
He thought it would be an attempt worth doing. It took days to compile these readings.
Mr. Halloran took the information as an offer ofproof
HEARING At the hearing testimony was presented by we the Complainants, Barbara
Stuart and Ronald Stuart. Ronald testifiedhow on the first day,August 8,2001 at
5:15
a.m. Frank Fisher began using his two propane cannons, a tragedy occurred. Our dog
already sensitive to thunder, guns, and firework, became frightened by the blasts of
“gunshot like” sounds ofthe cannons was outside with Ron. Samantha,(dog) ran forthe
locked gate, forced herself through it and went into the opened door to the sunroom. She
hid under the desk. Our neighbor Karen Cancialosi came running over asking who was
setting offfireworks, or firing a gun at this time in the morning. Ron said he didn’t
know. Karen left for work. Sammy was taken to the veterinarian, xrays confirmed 3
compressed vertebrae. She was paralyzed in the back legs. By 7 p.m. Ron located the
source ofnoise. At 9:00 our dog was to be euthanized because ofno hope for survival.
Ronald states he went to Fishers Farm told him of the dog dieing. But Frank Fisher said
he would continue to use the propane cannons because-crows were pecking holes in his
watermelon. It was always the same reply from Mr. Fisher, No. Ron tells ofhow his horse last
year was spooked from the noise. He tells ofhow two ofour neighbors west ofus sold their
homes. One in the summer of2002
,
and then the new owner sold in October of2003. The last
owner sold because he owned a stallion and the horse was fidgety with the cannons going off.
Most horses don’t like the sounds ofguns. More ofRon’s testimony is on pages
TR 108
—
150
BarbaraStuart goes on to give aNarrative testimony along with cross examination by Mr.
Harding.
TR
108 —195 Barbara Stuart tells how the cannons have stopped her from
sleeping early hours in the morning, forcing her to sleep in the basement. How she is
concerned about the health and well being ofher family. Many ofwhom complain ofnot
being able to sleep or entertain outdoors. She herself does not garden if the cannons are
blasting. She stopped swimming in her pool. Entertaining friends because ofthe loud
intrusive, embarrassing sound. She found herself to be distracted, and annoyed by the
sounds, often causing Migraine headaches. Kept windows shut to buffer the sounds from
her dogs who would pant, pace the floor, and be in distress because they were frightened
by the sounds. She feels the cannons interfere with the quality ofher life and are a major
nuisance to everyone in her area. She explains or tries to explain Michael Stuart, her
son’s senseural neural hearing problems and how he experiences pain in his ears. She
explained how the States Attorney was notified by Michaels Otorlaiyngologist Dr.
Battista to intervene regarding Michael’s hearing problems. A second letter was sent to
the States attorney ofWill County in September of2002 informing them Michaels
hearing loss had worsened. See health records, letters, medical diagnosis
(Complainant
Group Exhibit one).
Again no action was takenregarding the letters ofa medical
Expert.
Michael Stuart, son ofRon and Barbara Stuart testified how his life was before and
after the cannons. He remains indoors, does not go outside with the cannons blasting.
The blasting ofthe cannons cause him ear pain. The remainder ofhis testimony is on
TR
25-51
Jim O’Neil a resident ofOak Forest, Ill. Testifies as to what this area was like before and
afterthe start ofthe cannons. He tells ofbringing his nephew to our home in July
of2002. Jim felt uncomfortable being outdoors when the cannons were operating
and feltlike he should duck when he heard the shots ring out. Orion, his 8 year old
nephew was frightened so badly he went indoors instead of swimming. The
remainder ofhis testimony is on
TR 80-84
Jerome Grossman a witness and neighbor who lives approximately
‘/2
mile from the
Fisher Farm. Jerome is a well known Glass blowing artist. He moved in to this area on
Coming Rd. in 1993. He complained ofwindows rattling when the cannons would sound
off Found it very hard to concentrate blowing glass because he was distracted by the
repeating impulsive sounds ofthe cannons. He stopped enjoying his ten acres ofproperty
that was peaceful and quiet. He experienced a great change in his lifestyle and quality of
life on his property while the cannons were operating. There is much more interesting
testimony given by Mr. Grossman on page
(TR
52 to 80
THE RESPONDENTS TESTIMONY: By error I, Barbara Stuart called Frank Fisher
as my witness. Never had I been to a hearing, or court, I did not know I should have
called him for cross examination. I think. Even so this proved to be by far a very
interesting testimony. Frank testifies he moved away from the farm until he was
divorced. It was not until his father passed in 1992 that he became Chief fanner at 13 W.
Corning Rd. In the year 1999 Frank changed the farm operation from the typical soybean
arid corn farming operation to one ofTruck Farming (produce). In the year 2000 he
tried growing Watermelons, had problems with crows “pecking” at them. So he bought
from a produce farmer who was retiring 2 used Scare a way 3 gas fired propane cannons.
On August 8, 2001 he begins using them. Changing this area from one ofcontentment to
that ofa firing range, summerafter summer. I asked Mr. Fisher if he could prove on
paper the benefit ofusing these cannons? And any proofthe cannons are working and
bring him in a profit. The answer to the question asked ofMr. Fisher was “he has no
records” because he keeps no records. He claims the proofis “in the pudding”. So
basically there is no evidence that warrants the reliability ofthese cannons, or shows he
has a better crop turnout. We thought it was odd he didn’t at least keep some kind of
records for 2003 for this hearing. Then Frank Fisher goes on to tell us he is only the
“ChiefFarmer ofthe operation. His nephew Michael Witvoet, and his niece, their
children and a boyfriend ofone ofhis nieces children receive the rewards from the
farming operation. Frank says he basically gives them the do’s and don’ts ofthe farming
operation. The nephew and niece have a residence in Cedar Lake, Indiana. (They don’t
have to live with this annoying, terrifying device) I asked if Mr. Fisher turned offthe
cannons while the farm hands were picking the crops to which he said “oh no”. He went
on to say they did the picking 20 to 30 feet away from these cannons and were not
bothered by the noise. He and his daughter who live on the premises ofthe farm in
separate housing are not bothered by the cannon sounds. Michael Witvoet, a witness for
Frank Fisher cancelled to be a witness the day ofthe hearing. I then asked Mr. Fisher if
he knew ofanyone in a 25 mile radius who uses propane cannons, he answered no. I
asked if he knew ofany produce farmers in this area. During Discovery he said no. At
the hearing he said “Oh sure I do”. And stated none ofthem use cannons. Crows only
seem to attack the watermelons, and no one but him grow watermelons. (NOT TRUE)
What was really strange was how he explained at the hearing “crows don’t just hone in
on one watermelon, they peck this one and that one, and then you can’t sell them”. On
the Judge Mathis tape, Frank says the same thing, makes a motion with his hand showing
the size ofthe hole (quarter coin). However, at the hearing Mr. Harding his attorney
shows these color pictures ofsome watermelons that don’t quite fit the description ofthe
type ofdamage crows do. Inthe pictures which we have never seen to this day, are no
indications ofcrows being around, where, or when they were taken. We were given copy
machine copies ofthe evidence. I asked if possibly a fox or other animal could do this?
No was the answer. Note: Racoons, fox and other animals do indeed consume and
destroy watermelon. The holes they leave are similar to those pictures.
Overview: Mr. Fisher basically is telling us the cannons operate with the farm crew
consisting of6 people, 20 to 30 feet away. He says he changed the farming operation
from the usual farming to truck farming, growing produce in 1999. He knew the area on
Coming Road was established and the majority ofthe homes on Coming Road were
already built with residents living in them. He uses a device on his farm to deter crows
that no one but him seems to be in conflictwith. Even though there are 4 or
5
other
produce growers in the area. He knows of the problems the cannons have caused to we
the complainants, and our neighbors. It was all documented in the March 24, 2002
formal complaint to the Board. But still without any reservation continues to use these
devices. Never once having to contact a specialist in bird control to seek an alternative to
the disturbing cannons, orturning to the USDA for advice. He has only tried pie tins and
scarecrows and that was in the year 2000. His complete transcript in on pages
TR84-98
PUBLIC COMMENTS
There are two residents who submitted written testimony
concerning their lifestyle changes when the cannons are in use.
PC #3
is Wayne Genis, a
very concerned and unhappy neighbor about the noise. Was to be a witness but had to
work.
PC#4
is from David Pillotto, a long time friend who can explain howthe cannons
have affected us, and our neighbors in this once quiet and serene area. The second P.C of
a neighbor (family member) is from David Stuart our son, now away at school. David’s
testimony I think needs to be read. Of all my children he was greatly taken back by the
cannon sounds. Losing sleep, inability to read or study outside. Embarrassment to
entertain friends, or even be alone outdoors to simply relax in the sun, was a pleasure
taken away from him when the cannons were blasting.
He
is
P.C.
#6 He suffers from a
serious anxiety order, this noise is detrimental to his health. There are also two other
Public Comments. Phil Novak and Lee Deutsch.
After many many attempts to notify local officials nothing was ever solved. Neighbors
were complaining about their children being in fear and not wanting to come outside, like
Danielle the little 3 year old who lived next door to us. They sold their home in August
of2002. One reason was the fear her children had to experience each summerbecause of
the cannons. Danielle thought a man was outside waiting to shoot her. Many neighbors
like us were awaken every morning to the blasts.
PETITION
A neighborhood petition was started all but two residents close to us signed
it. The other two were on vacation. We only went V2 mile from Fishers property line.
(public comment
#6) We heard several people complaining oflosing sleep, shutting
theirwindows, their dogs not wanting to go outdoors. Some having frightened children
not wanting to be outside. Most were reluctant to file a complaint, because in most
instances in our area, nothing is ever solved by our public officials. Mr. Genis who wrote
a written Testimony has a great deal to tell ofhow he and his son live. They are the
closest to the Fisher Property with the exception ofthe Hayes family.
See P.C. #3
Our
area changed that summer and for the next two summers, all the way up until Halloween
when Frank Fisher finally stops using the cannons.
OTHER CONTACTS We need
to let the Board knowthat we the respondents, made
every attempt to try and seek help to solve this noise problem. We contacted the Will
County Sheriff’s Department, the local Township Officials, The DNR, WS, USDA.
There was never any success or solution. No one claims responsibility for these cannons.
DURATION
TIME The cannons are Scare away 3, sold by Reed Joseph International.
According to the description ofthis cannon, they emit 130 decibels ofsound. Higher than the
sound ofa 12 gauge shotgun. The cannons when operating will sound offa blast about every
minute, sometimes less. Frank Fishers uses them from
5
a.m. until around 9 p.m. when the sun
goes down. There is an example ofthe cannon in Complainants Group Exhibit #5. Also for the
interest ofthe Board you can see an example ofthe actual cannon on the “Judge Mathis Tape”
(Hearing Officer Exhibit #1) It would be a great benefit to the board to view the entire 12
minute tape ofthe Small Claims case we filed with Will County that was turned over to the Judge
Mathis Show for trial purposes. The cannons during 2001 started on 8-8-01 through Oct 31,
2001. The year of2002 was by far the worst year, they startedthe end ofJune and ended
November 2, 2002. For some strange reason Frank only used the cannon during August, thru
October of2003, and rarely. It was nice for us who wanted to go outdoors, but still there was the
unpredictability ofwhen they would start up again.
THE
TESTIMONY OF SOUND EXPERT, GREG ZAK.
Our last and final witness was our sound expert.
TR 196-252Greg Zak
gave testimony
regarding the investigation ofthe areawe live in. He conducted ambient readings as
stated earlier. In the year 1979 Greg was involved in a gas-fired propane cannon case.
His first. He tells ofthe manner in which he took measurements ofan earlier model of a
propane cannon which was the source ofa noise complaint. He found the cannons to be
louder than a 12 gauge shotgun. These two particular cases, the 1979 one and ours are
very, very similar. Being the type ofrural location with residential homes, the almost
exact distance between the complainant and respondent. The sound measurements
which Greg took in 1979 were a distance of¼mile (1320 ft.) from the cannons. The
measurements were 53 through a series ofnumbers to 59. Note: Our home is
approximately 1100 feet from our west property line to Fishers East property line. The
cannon in 1979 was measured at a distance of30 feet and the sound levels were 105 to
106 dBa
,
the cannon was called a Thunderbird scare-away. The cannon in which Frank
Fisher uses emits 130 decibels according to the information given by Reed-Joseph
International. Mr. Zak points out that Mr. Grossman who lives farther from Frank Fisher
actually experiences the same problems as we do at a greater distance. Mr. Zak best
describes the sound ofthe cannons like that ofa backfire, blowout from a tire, hammer
blows, or gun fire. He further states there are no tall buildings around that would lessen
the amount ofsound. Note: “The overgrown trees which sit on the old railroad tracks”
Mr. Harding keeps referring to will not act as a sound barrier. There must be a thick
forest setting to buffer noise. Ifthe board questions this comment, Mr. Zak has agreed to
answerthe question. But I think he said it best “It’s (our) a very scarcely built up area,
very, very open and so you would not really have any building effect there.” Mr. Zak
discussed the reliability ofthe meter I purchased from him in July of2002. That of
which I still have. Ifit pleases the Board I can return it to Greg Zak. When I showed the
offer ofproof log sheet ofcannon measurements Greg was very confident they were
accurate, because ofthe similarity between the 1979 case and ours. He also says that the
1979 Coffman case regarding propane cannons and our complaint “are very, very, very,
similar”. For the full benefit ofGreg’s testimony and the cross examination from Mr.
Harding it maybe best forthe Board to review the text in it’s entirety. I am just giving
you some highlights ofhis testimony.
Complainants will not ask the Board to imagine being in our position and living under
these peace shattering nuisances and unreasonable interference’s ofour lives and others.
You will realize what life has been like afterreading the transcripts. What we will ask is
that the Board bring Frank Fisher into compliance with the laws and regulations of
Illinois. To implement our request we ask the Board to issue the orders specified in the
remedial action plan.
CLOSING COMMENT
In closing the Complainants wish to reiterate that 3 consecutive years from late June until
the
1st
ofNovember our once peaceful and beautiful areahas been turned into an area
similar to a firing range. Nearly every day, sunup to sundown, minute after minute, 14
hours a day, practically 7 days a week is enough. Yes Frank Fisher used his cannons
less, still less is unacceptable to us. There is no reason in this day and age to use such
outdated devices in our already stressed environment. This is not the year 1979. These
cannons also cast out liquid propane into the atmosphere. Without a doubt there are
better alternatives to propane cannons, which are rarely used anymore. We urge the
Illinois Pollution Control Board to do all in theirpower to return normal
,
happy lives to
the people on Corning Road.
Thank you for all yourtime and concern in this matter. I am eternally grateful after so
many years of searching for someone, anyone to listen to me about this cannon issue.
And to Mr. Halloran thank you so much for your patience with me on the day ofthe
hearing.
Respectfully submitted,
By:
,~4,4~
~‘-3~-a’(
Barbara Stuart
Ronald Stuart and Barbara Stuart
213 B. Corning Road
Beecher, Il. 60401
708-946-9546
Dated: April 30, 2004
THIS FILiNG HAS BEEN SUBMITTED ON RECYCLED PAPER
d~-
~
ARGUEMENT
“In a time of such turmoil throughout our nation, one has to
think about
our basic
rights. The rights that we fight for such as freedom, peace of mind and-domestic
tranquility are the true values in our lives”.
1.
Frank Fisher has been using gas-fired propane cannons since 8-8-01. These
cannons cause an enormous amount ofboth physical and emotion harm to our
family as well as to our neighbors. We have been deprived to opportunity to enjoy
the months beginning from late June until the last days of October forthree
consecutive years. Even though Frank Fisher has been aware ofthe disruption of
our lives, still he continues to use these devices. Since the day the complaint was
filed with the Illinois Pollution Control Board, March 24 2002, he has known our
son Michael 14, has a deteriorating hearing condition. Nothing caused by the
cannons, but the type ofsound emitting onto our property interferes with Michaels
hearing. By this we mean he experiences pain in his ears when the cannons go off,
as testified at the hearing. Two letters written by the Otolarynologist
,
Dr. Battista,
have been sent to the Will County States Attorney notifying them ofMichael
senseural neural hearing loss. Still two years later nothing is done to intervene on
Michaels behalf Michael’s hearing worsened in September of2002. Frank Fisher
claims we are bringing up Michaels hearing problems now because ofthe lost small
claims case in 2001 on the Judge Mathis Show. Our son begged us not to mention
his hearing problem on national television, we abided by his wish. Sleep
depravation to ourfamily is another health issue when the cannons are in operation.
We have had episodes when our horse is spooked by the sounds ofthe cannons
while riding them.
The issue:
If the person who produces the noise that is offensive
and harmful to our family and an injury occurs to a family member thenwho is held
responsible for the
injuries. I ask this question because
ofthe liability
involved in
using a device such as this. Many insurance companies will not pay for
damages forthe insured if the responsibility falls upon another individual.
2.
Frank Fisher became the Chieffarmer at 13. W. Coming Road in 1992 after his
father died. He continued growing the soybean and corn as many Illinois farmers
do. In the year 1999 he decided to change the farming operation to Truck Farming.
In 2000 he began growing watermelons, and experienced one year ofcrow damage
to his watermelons. So Frank purchases two used Scare a Way 3 propane cannons. In
2001 he begins using these cannons. Asked if he tried any other bird deterrent
techniques to which he answered yes, pie tins and scarecrows. It appears that Frank
is the only produce farmer in North Eastern Will County using such a device.
Frank admits he knows of no one around this area using them, including the other 4
produce growers, Vos, Bultema and others. But for some reason there is only a
problem with crows when he grows watermelons. At the Hearing we were shown
color photos ofwatermelon allegedly devoured by crows. We were never given the
opportunity to view the photos, but do knowthat our areais over populated with
Racoon, and fox, which are capable ofdoing such extreme damage. We do not know
where these photos were taken at, the date, or what animal did this to these melons.
The issue: How do
you know for certain a crow did this damage in the photos. In
the past Frank has said: crows don’t hone in on one watermelon, they just go from
melon to melon and peck each one. He clearly shows this on the Judge Matins tape.
3.
The area in which
Frank Fisher operates the propane cannons is well established.
Homes existing here are between the ages of20 to over 100 years old. 80 are
residential tax payers, the rest ofthe area consists of3 working farms with homes.
When I refer to “area”, I am talking about Coming Rd. Starting on Dixie Hwy.
Going eastward up to Cottage Grove. A length of1.3 miles. There are two newer
homes under 8 years of age, built on the Peterson farm at the eastern end of Coming
Rd. There is one Church, one cemetery, and a new Horse Stable built two years
ago, within a
‘/~
mile from Frank Fishers farm. One small business exists, an
Electronic parts distribution business having two homes directly in front ofthe
business. And a 6 acre parcel directly across from Frank Fisher is designated for
another Church to be built there soon, with the possibility ofa school. Issue: Do
propane cannons really belong in an area such as ours? When Frank started the
Truck farming operation in 1999 he knew there were little if any changes on
Coming Road. Issue: Is it right to allow one person, one farmer, to use propane
cannons around people who have made major investments in their homes many
years before he even returned to farming? This is not a question of“what came
first the chicken or the egg”. It’s a question ofRight or Wrong.
4. The cannons in which Frank Fisher uses emit noise beyond the boundaries ofour
property line and other property lines farther than ours. Jerome Grossman testified
when he was working at his glass shop on his property, his windows rattled with the
blasts from the cannons. He too had problems concentrating with the cannon noise.
Worse than that though, is this talented man, rated number four in the U.S. as a
Glassblowing artist is denied the concentration much needed to complete his art
work winch is his livlihood. Mr. Grossman began working out of his shop 1/2 mile
from the Fisher farm in 1993. This was seven years before Frank Fisher changed
the status of his farm operation to truck farming and eight years before Mr. Fisher
began using this cannon device. Tins noise unreasonably interferes’ with the
enjoyment ofour lives, and others. The sounds are too close to relax, sleep in the early
hours ofthe morning,enjoy the outdoors, swim, garden orentertain and carry on a
conversation without the distractionof the cannon noise. We feel a violation has been
made in reference to Sec. 24 (415 ILC5/23 and 24.
Issue Have our
rights been
violated. Ifso, then what can the Board do to help us?
5. What is the value ofour happiness, enjoyment ofourproperty, our family’s
health and well being, ourpeace ofmind, ourenjoyment offriends coming to our
house, the investment ofour property, what is all this worth? It’s priceless, we
learned that on December 2~’of2003. Life is too short, too valuable to have to
spend so many months out ofthe year miserable. Issue: Ifone person only, in an
area
is
allowed
to disrupt and take away any ofthese assets we hold close to our hearts,
and value so dearly, then what kind of a world are we really living in?
6.
Issue: Just how effective are
these propane cannons to deter crows and other birds.
All
this information is available
in print
in Complaints Exhibits as offer of proof
#5,
and #
2.
A. Joseph M. Rogus; District Wildlife Biologist, IDNS, Wilmington, Illinois.
Wrote a letter to me, Barbara Stuart stating “In recent years many new
products have become available on the market, some ofwinch can be more
effective than the LP Gas Cannon in frightening birds.
B. University ofVermont (USDA extension program) Vegetable and Berry
News, April 1, 2001. Vem Grunbinger states “Birds quickly get accustomed
to units that are stationary, shoot at regular intervals or fire rapidly.
Unfortunately neighbors never get usedto gas fired propane cannons”.
“Netting is the best wayto ensure crop protection.
C. Cornell University (USDA extension program. “Netting is the most
effective method for control bird damage”. “Propane cannons are effective
for short term control”.
D. U.S. Fish and Wildlife Services, Springfield, Illinois. Ron Ogden states
“Since birds are known to easily habituate to exploders, it is best to move
the exploders during the scaring operation and/or combine their use with
other scare devices.
E. William H. Clay USDA-APHIS-WS- Article A NATIONAL
PERSPECTIVE ON WILDLIFE SERVICES ROLE IN THE
MANAGEMENT OF BLACKBIRD-HUMAN CONFLICTS. States “Birds
tend to adapt to frightening devices, therefore it is usually best to include the use
ofmultiple type ofequipment.
Note: Frank Fisher does not move his cannons, “ever”. He also uses no other
devices along with the cannons. Still he gives no evidence on paper with
statistics or financial records indicating the cannons really worked for him to
show monetary gains on the sale ofwatermelons. What do we have to go on for
evidence that the cannons did indeed work? Even if they did work as he claims
in his testimony and states “The proofwas in the pudding” regarding his profits.
Would it not benefit our area for Frank to put some ofthose profits into an
investment ofa more environmentally quieter and safer alternative for deterring
crows from his watermelons? After all it is the responsibility ofall mankind to
protect our environment from any kind ofpollution. Noise is pollution. His
nephew Michael Witvoet receives the benefits ofthe farming operation.
However Michael and his family also benefit by not living by the cannons as we
and ourneighbors have had to for the past three years. Also I really find it hard
to believe no one is bothered by a propane cannon that puts out 130 decibels of
sound when they are only 20 or 30 feet away from that cannon.
7.
The effects which loud, negative sound has on the human ear. Many articles are
given to the Board regarding the issues, and facts surrounding the human ear
and hearing. In these articles is information regarding the physical as well as the
psychological effects ofsound on the human being. These articles have been
written by the best ofthe best in the field ofsound experts, and psychologists. Such
writers as Alice Sutter who has presented many research studies and facts to the
E.P.A. regarding the adverse effects ofnoise. Also are “Hearing” publications by
world renown Arline Bronzaft. The information is factual, informative and
shows clinical research. They are listed under
Complainant Group Exhibit 2
and 5.
Issue: There is undoubtedly enough ofclinical proofto show the effects sounds have on
people both physically and emotionally. Noise is harmful to the environment and to man.
THIS FILING WAS SUBMITTED ON RECYCLED PAPER
4~L~-&;-/W
REQUESTED REMEDIAL ACTION
Barbara Stuart and Ronald Stuart, Complainants, seeks an order from the Illinois
Pollution Control Board mandating that:
1. Frank Fisher and Phyllis Fisher, Respondents shall immediately Cease and Desist
from all future violations ofthe Illinois Environmental Protection Act, Board
Regulations and Board orders including, but not limited to:
-
A. Causing or allowing the emission ofsound onto Barbara Stuart and
Ronald Stuart’s, Complainant’s property that violates the prohibition of
noise pollution of35 ILL Admin Code: 900.102, by unreasonably
interfering with Complainant’s enjoyment oflife or with his or her’s
conduct ofany lawful business or activity.
11. Within
60 days after the Board’s order, Frank Fisher and Phyllis Fisher,
respondents shall implement the provisions set forth in this remedial action plan.
A. Prohibit the use ofany gas-fired propane cannon, presently used, newly
Acquired, used orpurchased new,-for use on their truck farming operation
B. Prohibit the use ofany auditory devices used for deterring birds, and or
wildlife that can be heard beyond the property lines ofthe Complainants.
C. Contact the nearest Wildlife Control Specialist from the USDA/APHIS
Wildlife service for information conceming alternatives to propane
cannons and other loud auditory devices. The Illinois Department of
Natural Resources office in Wilmington, Illinois can offer alternatives to loud
bird deterrent devices.
D. Prohibitthe use ofany loud speaker, stress call bird control devices.
111.
In the event Frank Fisher or Phyllis Fisher, modifies his/her method of operation of
their truck farming operation in order to evade any Illinois Pollution Control Board
Order, but still engages in an agricultural operation at his 13 W. Coming Rd site, that
cause emissions ofnoise in violation ofIllinois Pollution Regulations, we ask the Board
the provisions above be mandated in order to protect Barbara Stuart, and Ronald
Stuart Complainant’s, and the Coming Road Residents from noise emissions.
IV.
Complainants feel the construction ofan effective Wildlife Damage
control, orBird Damage Control method must be under the supervision ofa qualified
Wildlife Damage control specialist, to assure compliance with regulations. To that end
the respondent must retain a qualified Wildlife Damage Control expert within 30 days of
the Board’s order.
The Wildlife Control Expert shall certify that the changes as outlined in item 2 ofthis
remedial action plan have been properly satisfied to implement operational changes as
addressed in items A through D, and a good faith effort has been made by Frank Fisher to
implement those operational changes in items A thru D.
V. Within 30 days ofthe Board’s order Respondent shall post a $10,000.00 performance
bond or the like payable to the State ofIllinois Environmental Protection Trust Fund, The
Bond is to assure the timely completion and the Certification ,ofany noise controlling
Device/s or material forbird damage control methods. As recommended by a qualified
Wildlife Control specialist retained by Frank Fisher for his operational truck farming
facility located at 13 W. Coming Road. Failure to implement all ofthe above shall result
in forfeiture ofthe Bond or the like.
THIS FILING WAS SUBMITTED ON RECYCLED PAPER
,4i4~
ô~7~’(
C-
‘
-ICATE OF
SERVICE
We, Barbara Stuart and Ronald Stuart complainants, first being duly sworn, states than
a copy ofthe Briefand a copy ofthe Notice ofFiling was mailed to the Respondents
Attorney, David Harding, and those listed below on April 30, 2004 by Certified mail.
RECE~vED
CLERK’S OFFICE
MAY 032004
STATE OF ILLINOIS
Pollution Control Board
Bradley Halloran
Hearing Officer
100
W. Randolph
Ste 11-500
Chicago, Ii 60401
Dorothy Gunn, Clerk
IPCB
100 W. Randolph
Ste 11-500
Chicqgo, Il. 60401
David Harding
100 N. LaSalle St.
Chicago, Illinois
60402
Barbara
44-
Stuart
Bobby Petrungarro
Will County States
Attorney Office
14 W. Jefferson St.
Joliet, Illinois 60432
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VICK; L. INTQE
NOTARY PURUc, STATE OF ILUNOI5
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SEAL
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EXPRES7/i4/~y,5~,
~29
2004
