BEFORE THE
ILLINOIS
POLLUTION CONTROL BUAKI~LERK~S
OFFICE
BARBARA
STUART and RONALD
)
STUART,
)
Complainants,
)
)
v.
)
No.
PCB 02-164
JUN
15
2004
STATE OF ILLINOIS
Pollution Control
Board
FRANKLIN FISHER and PHYLLIS
)
FISHER,
Respondents.
)
Citizen Enforcement
)
)
To:
Dorothy M. Gunn
Suite 11-500
100 W.
Randolph St.
Chicago, IL
60601
Barbara & Ronald Stuart
213 F. Corning Road
Beecher, IL 60401
Bobby Petrungaro
14 W. Jefferson, Room
200
Joliet, IL 60432
Bradley P. Halloran
Suite 11-500
100 W. Randolph St.
Chicago, IL 60601
NOTICE OF FILING
PLEASE TAKE NOTICE that I have, on
June
15, 2004, filed with the Office of the Clerk
of the Pollution Control Board the Respondent’s Post-Hearing Brief, a copy of which is
herewith served
upon you.
CERTIFICATE OF
SERVICE
I, David G. Harding,
certify that on June 15, 2004, I served the attached Respondent’s
Post-Hearing
Briefby delivery to Dorothy M. Gunn and Bradley P. Hailoran at their
address as shown
above, and by pre-paid first class
mail upon all others to whom directed
to their addresses as shown above.
David G. Harding
Attorney for Respondents
100 N. LaSalle St.,
Suite
1107
Chicago, IL 60602-3803
(312) 782-3039
THIS FILING IS SUBMITTED ON RECYCLED PAPER
BEFORE
TI-IF ILLINOIS
POLLUTION CONTROL BOARI~
~VED
CLERK’S
OFFICE
BARBARA STUART and RONALD
)
JUN
15
2004
STUART,
)
Complainants,
)
STATE OF ILLINOIS
Pollution
Control Board
v.
)
No.
PCB 02-164
)
Citizen Enforcement
FRANKLIN FISHER and
PHYLLIS
)
FISHER,
)
Respondent.
)
RESPONDENTS’ POST-HEARING BRIEF
Respondents,
Franklin Fisher and Phyllis Fisher,
submit that for the following
reasons, Complainants, Ronald Stuart
and Barbara Stuart, have not presented a prima
facie case for the relief requested in their Complaint.
Respondents will discuss whether
Respondents interfered with Complainants enjoyment oflife; whether the interference, if
any, was reasonable; the social and economic value ofthe source of the noise; the
suitability ofthe noise
source to the area where it is located; the technical practicability
and economic reasonableness ofreducing the noise, and; Respondents’
actions since the
filing of the Complaint to reduce the impact upon
their neighbors.
References to pages of
the transcript of hearing held
March
9,
2004 are in
brackets.
Addressing the Amicus briefof the Will County State’s Attorney, it is only
necessary to note that the brief speaks only to the Will
County ordinance and appears to
accept the truth of certain assertions, a matter of no persuasive value
in the board’s
deliberations, particularly given the accepted fact that Will
County received complaints
from Stuart before the board did.
‘The Amicus brief makes no argument in relation to the
illinois Environmental Protection Act or the facts ofthis
case, as presented at hearing and
by exhibit,
The Complainants’ Post-4-Iearing Brief is similarly unhelpful.
It does not
discuss relevant areas of inquiry and
does not speak in relation to the facts as established
at the hearing.
It simply seeks
to place
several
exclamation points behind Complainants’
expressed desires.
Since this is the case, Respondents will not burden the Board with an
integral discussion ofthe record and the applicable law.
However, Respondent will take
pains to hit the high points.
INTERFERENCE WITH COMPLAINANTS’ ENJOYMENT OF LIFE
Complainants signed their complaint on March 24, 2002, alleging at paragraph 4
that Franklin Fisher used two
“bird (propane) cannon devices
1/3 mile from my
home.
.
.
Gunshot like noise ignites 30
sec to every minute X 14 hours per day from May
to
October.”
At paragraph 7, they allege, “On August 8, 2001
—
Franklin Fisher began
using two cannon devices...”
No May, June or July had then passed since the
commencement ofRespondents’
use ofthe propane cannons.
It is characteristic ofthe
exaggerations, evasions and emotional pleas for relief which the law does not afford
which have plagued this case from the beginning, through the hearing, and even into the
post-hearing briefing.
Barbara and Ronald Stuart have asserted throughout the pendency of this matter
that the gunshots were fearsome and made them, their family and neighbors who have
since moved away (most ofwhich was unadulterated hearsay), believe that someone was
shooting at them.
At hearing, Ronald
Stuart testified that he does not know whether
anyone hunts
on the railroad
property between his home and the Fisher Farm.
If gunshots
bother him, and this is closer than the Fisher farm, how could he not know?
He also
testified that a neighbor who is a police officer periodically
fires his gun in the area 132-
133,
140,
but this does not,
apparently, bother him.
Barbara Stuart likened the sounds to
a breaking glass, bringing to mind the idea that someone might
be cut,
and then, irritati.ng
like a dripping faucet 158.
The Stuarts
lead off that portion oftheir Post-Hearing Brief
with an unattrihuted quotation to
liken Franldin Fisher to a terrorist.
Young Michael Stuart testified that his doctor told him he should
stay away from
loud noises
301.
The conversations he overheard among the adults in his home were to
the effect that, “...everybody’s
in a had mood
and they talk about itjust saying those
cannons are a horrible thing, made to
hurt things 42.”
He admitted that, while waiting
2
for the hearing to conclude, he had been in the hallway outside the hearing room,
fixing
his electric guitar 273.
The Stuarts originally sued Franklin Fisher in Will County Circuit Court for
damages for the death oftheir dog, Samantha.
That case was removed, by agreement, for
arbitration in a very public forum, and the finding in
that arbitration was that no
liability
could attach since Fisher had not acted negligently.
At the close ofthat hearing, although
they had executed a mutual release in
anticipation of the hearing Respondents’
Exhibits
6 and 7,
the Stuarts vowed to
exact vengeance upon Fisher
Hearing
Officer Exhibit
1.
Moreover, the Stuarts’ conduct in this proceeding and their philosophy of
continued
complaining, threatening and harping at people who displease them
is a strong
indication that they have not suffered interference with enjoyment oflife 168-170;
Respondents Exhibits
1, 2, 4,
5, 8,
11,
20, 24, 25, 26, 27.
To
view this from
another
point of view, the Stuarts blame Franklin Fisher for the loss ofa breeding animal and
have sued him, complained repeatedly to units ofgovernment, including politicians who
have, given the coincidence of grammatical errors in their submissions, allowed Mrs.
Stuart to write letters as Public Comments
I and 2 over their signatures.
Not satisfied
with governmental action, the Stuarts have campaigned to
raise their other neighbors
against the Fishers Exhibit
1 0.
There is no evidence ofthe sound levels ofwhich Complainants complain.
There
is no evidence to support the threshold contention that the Respondents’
activities have
interfered with the Stuarts’
enjoyment oflife.
What the Respondents have suffered is
either sensitization by their perception that Franklin Fisher is responsible for the loss of
one of their breeding animals, or in the context oftheir activities in relation to
other
activities which
displease them,
interference with their preferences and embarrassment at
their inability to
micro-manage the day-to-day activities of their neighbors 30,
118.
No ca.se in Illinois has held that irritants equivalent to a dripping .faucet or a
distant popping sound
17,
even including loss of sleep, when confined to daylight hours,
3
and for such a limited period
-
the beginning to
middle ofAugust to the middle to
end of
October
-
constitute an interference with enjoyment of life.
REASONABLENESS OF INTERFERENCE IF THERE
WAS INTERFERENCE
The purpose ofthe cannons is to
repel crows.
That purpose is served.
The
excerpts from
Sweda admitted into the record and Mr. Zak’s equating ofcrows, by habit
and stubborn
attachment to
an environment make it clear that any program of reducing or
moving crow populations,
must begin with loud, impulsive noise 234-23
5; 242-243;
Sweda pages 210-21 1,
224 and 332.
Complainants offered no competent, admissible evidence on this issue.
Although
Mr. Zak was stipulated to
be a pre-eminent expert in the field ofnoise/acoustics, he
is not
qualified as an expert in ornithology, and his experience as a tree-farmer hardly qualifies
him to judge the feasibility of various methods.
SOCIAL AND ECONOMIC VALUE OF THE SOURCE
OF THE NOISE
The source ofthe noise is a farm.
in Illinois, farming is granted a primacy of
value afforded to no other activity.
740 ILCS 70/i;
505
JLCS
5/19; 505
ILCS 75/2.
Additionally, although the Stuarts sought and obtained a bar on Respondents’
evidence of
economic loss, Complainants opened the door and
asked the question, and the propane
cannons have reduced losses 101-102.
SUITABILITY OF TI-IF NOISE SOURCE TO TI-IE AREA WHERE IT IS LOCATED
The noise
source is located, on a forty acre farm.
The farm and its
various noise-
producing implements and machines have been there for more than a generation.
The
propane cannons were added in
2001
to address a specific problem..
The farm has
priority, but the cannons do not.
On the other hand, as noted above, there is little ofeffect
that can be done to protect the crops from birds that does not involve the cannons.
And
given the nature and
source of the Stua.rts’
crusade against the Fishers, it is likely that,
even if the cannons are removed, there will be some
other element offarming activity
which will draw their wrath..
Perhaps, their next complaint will be about all those
4
dangerous strangers coming
into their neighborhood to
harvest the produce.
TECHNICAL PRACTiCABILITY AND
ECONOMICJ~SONABLENESSOF REDUCING THE NOISE
As noted in the excerpts from
Sweda and the testimony of Greg Zak, cited
above,
any effective program for repelling crows must begin with impulsive
sounds.
Muffling
the sound renders the cannons useless.
Removing the cannons removes the cornerstone
of any effective bird-control program.
The alternative methods suggested by the Stuarts
without expert qualification are simply too time-consuming and
labor-intensive 91.
RESPONDENTS’ ACTIONS TO REDUCE IMPACT
ON THEIR NEIGHBORS
Franklin Fisher testified that he started out using both cannons
every day and has
since learned that a pattern of a couple ofdays on and a day offworks nearly as well, and
it has become his practice to
use the cannons as little as possible,
no more than necessary
90,
285-286.
Although Respondent has difficulty believing that what he is doing causes
any real interference with
Complainants’ enjoyment of their lives, his efforts have been
accommodating.
CONCLUSION
Respondents, Franklin Fisher and Phyllis Fisher, submit that the Complainants
have not even approached
making out a case of pollution, and they respectfully request
that the Illinois Pollution Control
Board so find.
Respectfully submitted,
David
G. Harding
Attorney for Respondents
100 N. LaSaile St.
Suite i107
Chicago, IL
60602-3803
(312) 782-3039
