)
)
)
)
)
PCB 02-164
CitizenEnforcement/Noise
RECE~VED
CLERK’S OFFICE
JlIti.i
42004
STATE OF lLUNOJ~
Pollution Control Board
Respondents
)
NOTICE OF FILING
Bradley Halloran
Hearing Officer
100 W. Randolph
Ste
11-500
Chicago,Il. 60601
Dorothy Gurin
Clerk ofIPCB
100 W. Randolph
Ste. 11-500
Chicago, Ii 60601
David Harding
Lopez & Harding
100 N. LaSalle St.
Ste
1107
Chicago, Ii. 60602
Bobby Petrungarro
Will County States
Attorney Office
14
W. Jeffereson
Joliet, Ii.
60432
PLEASE TAKE NOTICE THAT ON July
13, 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 “Reply BriefofBarbara Stuart and
Ronald Stuart” a copy which is served upon you.
Pursuant to
35
Ill. Admin. Code
101.103 (d), this filing
is submitted on recycled paper.
Barbara Stuart, Complainant
/~
~
Ronald Stuart, Complainant
Barbara Stuart and Ronald
Stuart
213
E. Corning Rd.
Beecher,
Illinois 60401
708-946-9546
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
BARBARA STUART
)
And RONALD STUART
Complainants
FRANKLiN FISHER and
PHYLISS FISHER
)
)
TIlTS FILING WAS SUBMITTED ON RECYCLED PAPER
RECE~VED
CLERK’S OFFICE
JUN
142004
BEFORE
THE ILLINOIS POLLUTION CONTROL
BOARD
STATE OF ILLINOIS
Pollution Control Board
BARBARA STUART and
)
RONALD STUART
)
)
PCBO2-164
Complainants
)
Citizens Enforcement/Noise
)
vs.
)
)
FRANKLIN FISHER and
)
Phyllis Fisher
)
Respondents
)
REPLY BRIEF
OF
RONALD
STUART AND
BARBARA
STUART
The complainants, Ronald Stuart and Barbara Stuart (collectively referred to as the
Stuart’s), file this reply briefwith the Illinois Pollution Control Board
(“Board”)
in
support oftheir complaint against Frank Fisher and Phyllis Fisher.
OVERVIEW
On June 15, 2004 Frank Fisher and Phyllis Fisher served its brief on Barbara Stuart
and Ronald Stuart.
Fishers briefcontains numerous factual inaccuracies, misquoted
testimony ofwitnesses, and misdirectedargument.
Having failed to present any evidence
whatsoever on the majority ofissues, Frank Fisher now attempts to direct attention away
from this shortfall by trying to discredit the characterof the complainants.
Frank Fisher
at the same time refuses to address the actual matters at issue.
We the complainants feel
Mr. Fisher has made an ineffectual
attempt to disregard our credibility and the factors
related to the interference with the enjoyment ofour life due to the noise ofthe propane
cannons.
The Stuarts’ provided credible testimony to demonstrate that Frank Fishers propane
cannons used on his farm less than
1/4
mile from the Complainants, cause noise emitting
onto the Stuarts property causing unreasonable interference with the enjoyment oflife.
That evidence was clearly summarized in the Stuarts’ initial post hearing brief.
And
there is no
additional benefit in repeating it here in this final reply brief.
We will touch
on the subjects of concern in Frank Fishers reply brief, which we feel a need to address,
and clarify for the Board.
1
WILL COUNTY STATES ATTORNEY AMICUS BRIEF
Respondent states in his brief the Will County States attorney brief is ofno persuasive
value in the Boards deliberations, because Will County received complaints from we the
complainants before the Board did.
Washington Township is
an unincorporated area; therefore we are at the mercy ofthe
County ofWill, to seek relief for problems or complaints. It should be noted the
Supervisor ofthe Land Use Department ofWill County, along with the Will County
Sheriffs’ Department initiated the contact to the States’ attorney office regarding the
propane cannon complaints.
In order for the State’s attorney office to act upon a noise
nuisance complainant they must receive other complaints regarding the same noise
source at the same location.
1.
EVIDENCE ESTABLISHES THAT FRANK
FISHER
HAS UNREASONABLY
INTERFERED WITH THE ENJOYMENT
OF LIFE FOR RONALD AND
BARBARA
STUART IN VIOLATION OF BOARD REGULATIONS.
INTERFERENCE WITH COMPLAINANTS ENJOYMENT OF LIFE
Respondent’s Briefattempts to draw attention to the initial Formal Complaint filed on 3-
24-02 regarding paragraph 4.
This issue was never questioned at the hearing, oreven
during discovery, makes this point moot.
As an act ofgood faith, we the complainants
will give the Board an answer why the dates May thru October were written on the form.
During the taping ofthe Judge Mathis Show, Frank Fisher stated the cannons would be
used Maythru October, although this statement was edited out as were other comments.
Assuming this would be the schedule Frank was planning on following for operating the
cannons in 2002, we wrote in those dates.
For the record the cannons have never
operated in the month ofMay.
Respondent tries to establish a preponderance ofthe characterand integrity ofthe
complainants though the entirety ofhis brief.
Frank Fisher through his brief refers to we
the complainants as people who are evading, exaggerating, complaining controlling, and
who have taken a vow ofvengeance to him.
These are harsh and futile words to try and
place the focus on the Complainants as “plaguing this case from the beginning, through
hearing, and even now up to this time” according to the respondent.
The Respondent makes an allegation on Page 3, paragraph 2 ofhis brief regarding
Complainants Public comment #
1
and #2, written by Phil Novak, former State
Representative ofour area, and Lee Deutsch,
a Will County Board member.
The
respondent alleges that I, Barbara Stuart was allowed to write these public comments
over their signatures.
Mr. Harding on February
6th
wrote to Lee Deutsch and Phil Novak
requesting confirmationoftheir authorship ofthe Public Comments they submitted to the
2
Board. Copies ofMr. Harding’s request were never sent to we the Complainants, Mr.
Halloran or the Board.
We did not discover the respondent and his attorney made this
request of Mr. Novak and Mr. Deutsch until after the hearing. Mr. Deutsch was upset,
and mailed to me a copy ofthe February 6~”letter ofMr. Harding’s.
Complainants will
submit to the Board a copy ofthe letter Mr. Deutsch received from Mr. Harding if the
Board feels it is ofany
significance to this case.
Frank Fisher, we think is under the impression this case is related to the death ofour dog,
and we are out for revenge.
This case is
about the noise ofthe cannons, which continued
after the death ofdog, causing more extreme interferences with ourenjoyment oflife
than we ever anticipated.
All listed in our initial post hearing brief.
Mr. Fisher in his
brief refers to the testimony ofBarbara Stuart TR168-170
as being a strong indication
that we have not suffered interference with life.
Although not stipulated by the
Respondent, we think he is referring to the calls made to the Will County Sheriff
Department regarding the cannon noise we complained of.
Ifthere were not a level of
interference to our lives caused by these cannons, then we would not have had to seek
Relief from the Will County Sheriff Department.
Although Frank Fisher was never cited
for a noise violation during those time, this may change because ofthe State’s Attorney
involvement and learning the cannons have not been proven to be effective and in fact,
that these propane cannons are a nuisance to the health, safety and public welfare ofthe
PEOPLE OF THIS COUNTY OF WILL.
It may benefit the Board to consult with the
Planning and Zoning Department ofWill County to learnofthe planned 840 home
subdivision approved for the 240 acres across from the Fisher Farm.
It’s located on the
maps used in Comp.
Exh.2
It’s a 240 acre parcel ofland, Northeast corner on Rt.
1.
The respondent Frank Fisher on Page 2 paragraph 2 refers to the reference we made
during testimony ofthe hearing, related to a small little 3 year girl as being frightened by
the cannons and hiding in her house.
The testimony is referred to as “unadulterated
hearsay”.
Mr. Fisher was made aware of this in our original
Formal Complaint.
Did he
attempt to contact the Collina family and find out forhimself about this little girl being
frightened?
No, never, he just
started up his cannons again in 2002
in Late June. August
of2002
Danielle’s family sold their home and moved.
Both Ronald Stuart and I took an
oath to tell the truth at this hearing, this child’s fear ofthe cannons was not hearsay. It
was a fact.
Mr. Fisher again attempts to discredit Ronald Stuarts’ testimony regarding hunters on the
railroad property.
He simply does not believe Ron does not hearthe sounds ofgunshots
from hunters.
I myselfhave never heard ofany gunshots coming from the very narrow
path where railroad tracks existed many years ago.
Also Ronald never testifiedhe WAS
NOT bothered by the police officer who two or three times a year fires his gun for 15
minutes
TR
132,
133,
140.
During the narrative testimony, I attempted to explain what the propane cannons
reminded me of; I compared other sounds, which bring fear
sudden surprise and
annoyance to one.
Giving the examples ofbroken glass, or a dripping faucet.
TR
158
3
From the first day I heardthe sounds coming from the propane cannons,
I have always
compared the cannons to be similar to the sound ofa shotgun.
Quotation by Ronald Stuart:
“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.
Mr.
Harding
considers the quote written by Ronald Stuart as a quotation to
“liken Frank Fisher as a
terrorist”.
Mr. Harding is theperson who makes that assumption and uses those words.
Ronald only wrote the quote.
After his loss ofhis identical twin brother Donald on Dec.
2, 2003, and a best friend of 30 years on Christmas Day, Ronald has a different view on
the true values oflife. We all need to realize what a value domestic tranquility
is to us in
our short-lived lives.
There is far too much chaos, and violence in this country.
The
propane cannons to us signify a sound which brings to mindviolence, a gunshot sound.
Respondent neglects to allow the Board to see the entirety ofthe answer ofour son,
Michael Stuart. TR42
The words WHEN THE CANNONS ARE RUNMNG, was
omitted giving one the impression we talk about the cannons all the time.
We complain
and are unhappy when they are in operation.
That is what Michael said.
The Respondent reads into the final conclusion on the Judge Mathis tape, where Ron
states; “we will pursue this until the cannons are stopped in our area, we have the support
ofmany behind us.”
This was no vowofvengeance against Frank; the problem is
propane cannons do not belong in a rural residential area.
Several times in the narrative
testimony ofBarbara Stuart, I have stated the case is about the cannons.
Frank Fisher is
the only one ofthe
5
produce farmers within a 25 radius who uses a cannon at his farm.
On page 3, paragraph 3 Respondent argues in his brief there
is
no evidence ofthe
sound levels ofthe which Complainant complain.
Again this information was
discussed in the initial brief ofthe Complainants.
Briefly I will review some ofthe
evidence that has been presented:
1.
Testimony of
Ambient readings
from Sound Expert Greg Zak. TR
200-202
2.
Amicus BriefofStates Attorney acknowledging
the Will County
Sheriff’s
Department ofthe propane cannon readings in the summer of2002.
It is ofthe
beliefof
the States Attorney ofWill County these cannons are a nuisance.
3.
Complainants
exhibit 3.
Letter to Helen Gehring from the IEPA, authored
by
Greg Zak in 1979.
Letter contains the
sound measurements oftwo propane
cannons takenby Greg Zak on a similar case
related to cannon noise.
The
similarity ofthe case is based on the testimony ofGreg Zak
during the hearing.
Rural setting, distance between the complainant and respondent being ¼
mile,
open area, similar sound measurements, no
sound barriers to block noise make the
1979 case and this one similar in nature TR
203-211
4.
Log sheet ofsound measurements taken with a calibrated Radio Shack Meter sold
to Barbara Stuart by Greg Zak.
Included is date, time, weather, and wind velocity.
4
5.
Very specific instructions were given to me, Barbara Stuart over the phone, and at
my home on the proper use ofthe device, and where to position myselffor
accurate sound measurements.
All this is in the initial brief.
6.
As an offer ofproof is
a Reed Joseph International
copy ofthe
Scare away
3
cannons that the respondent uses Comp.
Exh.
5.
The advertisement clearly states
those particular cannons emit 130 decibels ofnoise when operated.
Information
obtained from the Reed Joseph Website.
Note:
At the location ofthe
1979
cannon case in Knox County, Greg Zak took sound measurements 30 feet from the
Thunderbird Scare away and Zon cannons, measuring at 106
dBa TR
205-208.
7.
Gregory Zak during testimony indicates he properly instructed Barbara Stuart how
to operate the calibrated Radio Shack sound meter, which he sold to her to take
sound measurements.
Greg Zak compares the measurements taken in
1979
cannon case and noted the measurements taken by Barbara Stuart to have similar
Readings and that was part ofthe reason he would compare the two cases as being
very similar.
TR
219
This evidence confirms the disruptive nature ofpropane cannons. It is
factual our normal
ambientmeasurements are approximately 40 dBa, possibly as low as 33-35 dBa with
winds below 20 m.p.h. When the cannons blast off we hear an impulsive sound
registering at approximately 60 dBa.
We have already discussed how these cannon blasts
have caused such interference in our lives.
How can the Respondent allow his own
family members to pick crops when these cannons are only 20 to 30 feet away and still
operating and say
no one is bothered by the sounds ofa 130-decibel blasting
cannon?
TR
103
Respondent feels the exhibits entered at the hearing substantiate his claim that we
have not suffered interference with enjoyment of life.
These exhibits he entered are
mostly irrelevant to the case at hand.
BREAKDOWN OF RESPONDENTS EXHIBITS:
1.
Answer to Request for Admission.
Apparently we were not
supposed to give a
reason why we felt some ofthe request to admissions was irrelevant.
2.
Second answer to Request for Admission.
Yes orNo.
3.
Complainants’ responses to interrogatories and request for production.
It is worth
noting the responses, which did have attachments for evidence, were not included
in this submission.
It does however give the Board an indication ofwhat
information was made available to the Respondent.
And the evidence we had we
were significant. By no means did we expect the Respondent or his attorney to
complete the filing ofthis evidence for us.
4.
Letter to Frank Fisher regarding a Breeding attempt ofour dog, which failed. This
letter was written when I was angry, and hurt over the death ofour dog.
Ijust
returned from seeing my fatherwith Terminal Lung cancer.
No copies were ever
sent to any other individual. Contraryto Mr. Harding calling us Dog Breeders, we
are not dog breeders.
5
5.
Letter to Mr.
Fisher. The Will County Small Claims Court advised me, to
send him a letter in writing requesting the amount ofdamages I was claiming.
6.
Judge Mathis Series Arbitration Agreement.
This case was centered on
reimbursement for Veterinarian fees, cremation ofour dog, and the loss ofour dog. It was
simply a small claims case.
8.
All though accused ofwriting this letter
to Mr.
Fisher, we did not.
And to this
very day, I do not know who wrote it.
9. Objection to set Discovery Schedule and Hearing Date. The initial filing ofthe
complaint was 3-24-02.
Mr. Harding made a motion to dismiss the case, but the Board
found the case not to be frivolous
or duplicitous.
Then he requested a hearing date
Between August
1, and September 30, 2002.
The Board approved our objection.
Why
this is an exhibit is unknown to us.
We had very valid reasons for objecting to Mr.
Harding’s and Mr. Fishers requests.
10.
July 21,
2002 Letter to neighbors regarding the loud cannons.
It was not common
knowledge to many people where this intrusive cannon noise was coming from.
I was
simply trying to help anyone if they were concerned.
Only 8
letters were distributed, I
don’t knowhow Frank received a copy ofthis letter.
11. I requested a 20-day extension oftime which Mr. Hal loran had no objectionto.
I
was scheduled for a biopsy, and was ill at the time, and on bed rest.
I have no ideawhy
this would be submitted as an exhibit.
12. Mr. Harding was making inquiries about our case to Mr. Zak.
I feltthis to be
unfair. Mr. Greg Zak informed me ofMr. Harding’s attempts.
18. October
10, 2003 A letter to Mr. Harding, requestinga response from a previous
letter in an attempt to resolve the noise nuisance issue with Frank Fisher.
I never heard
from Frank Fisher or Mr. Harding to look for a solution.
19. November 18, 2003 Request for extension oftime.
My husbands identical twin was
in I.C.U. with gall bladderrelated Pancreatitis.
He died on December 2, 2003.
Copies
were sent to all involved parties.
I cannot understand why Mr. Harding would submit
this as an exhibit.
During cross-examination ofRonald Stuart Mr. Harding asked howhis
brother Donwas doing.
Ron replied “He’s Dead”. Mr. Harding knew ofthe death of
Donald Stuart during several conversations with me and Mr. Hal loran prior to the
hearing. Reference was made to this insensitive comment in our initial brief. This only
makes us believe Mr. Harding thoughtwe were exaggerating. It was from mid November
until mid February that it seemed as though time slipped away from us due to Ron’s
brotherdieing.
We
simply were
under an enormous amount of griefand despair,
which caused
us to
fall behind
in filing ofpapers to the
Board.
Mr. Hal loran was
kind enough to accept
most ofthese relevant and
informative documents as Offers
ofProof.
We did the best we could at such a terrible
time
in
our lives.
20. A newspaper clipping from the Chicago Tribune about crows.
Mr. Harding alleges
I mailed this to him, which I did not.
I never saw the article until the day ofthe hearing.
It’s an interesting article, however credit cannot be given to us for sending itto Mr.
Harding.
22. And 23.
Photos of damaged water melons (color) these are photos, which are
allegedly, the watermelons destroyed at the Fisher Farm by crows.
We had never seen
these photos until March at the hearing.
No sign ofcrows, we do not know if this is
6
Franks Farm.
In Franks testimony he claims “crows don’t just hone in on one melon,
they peck this one and that one”TR
88
He also makes this same claim on the Judge
Mathis show.
This was further discussed in our initial brief regarding the type ofanimal,
which could have destroyed the watermelons in these photographs.
24.
25,
26,
& 27.
All Letters to
the Editor, written by Barbara Stuart.
Covering
issues related to the proposed Peotone airport.
All these letters showed support
ofthe wasting ofnatural resources including fannland. My letters in my opinion
stated the facts, the truth, and never caused harm to anyone.
2.
COMPLAINANTS OFFERED COMPETENT EVIDENCE INDICATING
THERE WAS UNREASONABLE INTERFERENCE TO THE ENJOYMENT
OF
THEIR LIVES.
REASONABLENESS
OF
INTERFERENCE IF THERE WAS INTERFERECE
Respondent uses the excerpts from the Sweda case and Mr. Zaks’
equating ofcrows.
He
leads one to believe Greg Zak believes crow control problems must be begin with loud
impulsive noise.
Page 4 paragraph one. To begin Mr. Zak stated; “cannons were
designed to frighten birds or animals and any muffling ofthe device would—to the point
where it would comply with Illinois regulations would, in my opinion, renderit useless
for frightening wildlife, and that’s based on my experience with wildlife and working in
the noise are for the last 27 years that typically the wildlife seems to be more tolerant of
noise than people do.
TR
332 4-12.
One needs to focus on Greg Zak’s words
COMPLY WITH ILLINOIS REGULATION.
Do propane cannons violate the Illinois
Regulations on noise and nuisance?
Greg Zak gave testimony at the hearing on March 9, 2004, stating the above-mentioned
Sweda case was not at all similar to this case of ours.
Reasons being, the setting was
urban, highlypopulated, tall buildings, and the complainant Mr. Sweda lived one mile
from the location ofthe cannons.
All this was discussed in ourinitial brief.
There is no
comparison ofthis case to that ofthe Sweda case.
We feel the evidence we offered was reliable, credible, and carefully researched
concerning alternatives to the cannons.
Frank Fisher is the only produce farmer using the
outdated, loud cannon devices even though
5
other nearby produce farms exist, are larger
in size, still they do not use propane cannons.
And even more important is the facthe
initiated the use ofthe device
after
the area in which he farms has increased with
residential homeowners substantially over the past 20 years.
We have already touched on
the expertise and qualifications ofthe States experts on bird control and devices.
These
persons were mentioned and their expertise on control ofbird damage speaks for itself.
Comp.
Exh.
5
they offered better alternatives, reasonably priced, and stress the
importance ofevaluating the location in which cannons are used to protect the health,
welfare and safety ofpeople.
7
1.
Mr. Andrew Clapper ofthe APHIS/USDA! WILDLIFE SPECIALIST OFFICE,
Wilmington, Illinois.
2.
William H. Clay, USDA-APHIS-WILDLIFE SERVICES
3.
Wildlife Damage Management Cornell University extension program
4.
Mr. Joseph M. Rogus Illinois Dept ofNatural Resources, District Wildlife
Biologist. Wilmington,
Illinois.
5.
P.C. ~2 ofLee Deutsch, a
5th
generation farmer. Farms 300 plus acres in this area.
Well respected,
on the Will County Farm Board, tells his opinion ofpropane
cannons. Here is a man who knows everything about the areaand farming and is
well respected by everyone.
3.
COMPLAINANTS FEEL NO PROOF OF A SOCIAL OR ECONOMIC
VALUE HAS BEEN ESTABLISHED TO JUSTIFY TIlE SOURCE OF THE
NOISE
SOCIAL AND ECONOMIC VALUE OF THE SOURCE OF THE NOISE
At the time ofthe hearing the Respondent offered no proofofgains to
support his claim
ofthe cannons being ofan economic value to the farm operation.
He did however give
testimony saying he was basically the farm manager and gives the do’s and don’t of
farming to his nephew and his family.
The income rewards are basically his niece and
nephews.
TR
14
8-111
Frank Fishers nephew Michael Witvoet was scheduled to be a
witness forFrank Fisher, but cancelled the day ofthe hearing to testify.
The Respondent tells us he keeps no records,
its not required, and the “proof is in the
pudding” regarding the propane cannons to be ofvalue to his farming operation.
Because the Respondent was unable to prove any social oreconomic value ofthe source
ofthe noise this places the respondent in a positionto fail to
prove this factor related to
Section 33 ofthe Board Regulations.
Questions:
1.
Is one farmer only, reaping in the benefits ofhis crops, who does not live in the
area or on the property, such is the case of Michael Witvoet justify the noise
source?
And is this solely an economic value to the farmer only, and ofno value
socially and economicallyto those who reside in this area?
This is
a
very
good
question.
2.
Are the Complainants, and residents paying a price for Interference with the
enjoyment oftheir lives, so only one farmer benefits?
3.
The respondent knew there was going to be a hearing.
Why did he not keep
records to support his claim to benefits ofthe cannons forthe year 2002 and
2003?
4.
The Amices Briefofthe Will County States Attorney feels theirnoise nuisance
ordinances are necessary and proper to protect the health and safety ofthe
residents, as well asto protect their property values.
Furthermore It is the position
ofthe County ofWill that these devices have not been proven effective and in
8
Fact, that these propane cannons are a nuisance to the health, safety and public
welfare ofthe people ofthis County.
5.
Property values, what will happen to investors ofproperty and homes in the
fastest growing town in Will County, Beecher, Illinois?
And what about the
homes to be built on Corning Road?
6.
Watermelons are not a usual and customary crop in this “unique” area, according
to the testimony ofthe Respondent Neither are propane cannons the Respondent
also admits at the hearing. TR
911
4.
COMPLAINANTS FEEL THERE IS A LACK OF SUITABILITY OF
THE
NOISE SOURCE TO THE
AREA
WHERE IT IS LOCATED
SUTTABILITY
OF
THE NOISE SOURCE TO THE AREA WHERE IT IS LOCATED
The Respondent openly admits in his post hearing Brief,
“The farm has priority, but
the
cannons do not”.
However contends there is little ofeffect that can be done to
protect the crops from birds that does not involve the cannons.
But has not demonstrated
any “real” attempts to try different proven methods for crow damage control.
The lack ofsuitability ofthe propane cannons in our area is one ofthe major factors of
this case.
Using the propane cannons for bird control is not a common farming practice
in this area.
In reality the cannons are not used by anyone but Frank Fisher.
We have also addressed the issue ofother bird control alternatives.
The technology and
the expertise ofwell-qualified bird control specialists is available to the Respondent to
control the crows. We have taken so much ofour time to learn if Frank Fisher has
alternatives to the propane cannons.
There is only so much we can do to convince him of
the discomfort we feel when the cannons are operating, and the harm they cause us.
Someone else hopefullywill
step in on our behalfand our neighbors to help us with this
noise problem.
We can address ourselves as Complainants in this case, but we are also residents,
neighbors, people and friends in this area.
And we like the other residents were here long
before the Respondent started operating the propane cannons.
The Respondent Frank
Fisher knewthe areahad already grown with a larger population and more residential
homes, how could he possibility not thinkthe loud sounds emitting from these cannons
would not pose a problem to his own neighbors.
9
5.
COMPLAINANTS PROPOSED OPERATIONAL CHANGES ARE
TECHNICALLY FEASIBLE AND ECONOMICALLY REASONABLE.
TECHNICAL PRACTICABILITY
AN)
ECONOMIC REASONABLENESS OF
REDUCING THE NOISE.
Respondent refers to excerpts from Sweda and the testimony of Greg Zak, which
obviously led him to the conclusion any effective program for repelling crows, must
begin with impulsive sounds.
Removing the cannons removes the cornerstone ofany
effective bird-control program.
The excerpt to which the Respondent refers to is a
case, which is not at all similar to this one.
Previously we discussed the differences in
the Sweda case and the Stuart v.
Fisher case.
Greg Zak during the hearing in March
gave testimony about this particular case, and thoughtthey were not alike for various
reasons.
Mr. Zak also at the hearing offered suggestions for Frank Fisher to cease
using the cannons. Netting, bird dogs, and the quiet effective, made for control birds
Avian Dissuader.
Affordable alternatives. Greg Zak testified using cannons is a very
unique situation, one you do not see often. This is a device specifically designed to
cause noise, loud noise.
TR
223-225
The device is the source ofthe noise
pollution.
Finally, the Respondent has not made an attempt to contact any ofthe governmental
agencies that offer advice for bird control management.
The exhibits in #
5
show
practical, reliable, and environmental friendly approaches forcontrolling birds from
crops.
Perhaps we are not farmers, but do know ofmany farmers in the area personally.
Even if they all do not grow watermelons, they still have crows eating some oftheir
crops.
The farming business comes.with some risk ofwildlife damage to crops, this
is a known fact.
However, the other farmers in this area don’t go out buying cannons
to attempt to control the wildlife. There are many pumpkins grown on many farms
late into October, but no propane cannons sounding off, except at Frank Fishers farm.
6.
RESPONDENTS
“ACTIONS”
OF ATTEMPTING TO REDUCE
IMPACT
OF NOISE
ON THE
COMPLAINANTS
SEEMS LATENT
RESPONDENTS’ ACTIONS TO REDUCE IMPACT ON THEIR NEIGHBORS
The respondent in 2001
used the cannons every day from 8-8-01 until October
31st
2001.
In 2002 the cannons began 6-28-02, until the end ofOctober that year, making 2002
without a doubt the worst year because ofthe
daily routine ofthe cannons. Then all ofa
sudden after 2 consecutive summers, and early fall of the cannons blasting, the
respondent now “learns a pattern forusing the cannons”. Respondent claims he used
them less often in 2003 to be accommodating to the neighbors.
He has lessened the
10
Frequency ofthe use ofthese loud disruptive cannon devices, still he does not believe
what he is doing causes any real interference with Complainants’ enjoyment oftheir
lives.
He feels his efforts have been accommodating.
We the Complainants did notice the Respondentused the cannons less in 2003.
Were his
actions accommodating to we the Complainants?
No.
Because any single day ofthe
cannons in operation caused us undue, unreasonable discomfort in our lives.
These
words are supported by witnesses testimony and by the numerous
documents we offered
as proofto substantiate our claim to unreasonable interference with the enjoyment ofour
lives.
In addition Gregory Zak a sound expert gave testimony in several areas, which are
relevant to the factors ofthis case, already in our initial brief.
Including the reliability of
the meter, Barbara Stuart used, calibrated by Greg Zak, instructions ofuse by Greg Zak
both by phone and at her home to
support the log sheet Comp.Exh.4
Readings which
could prove to the Board a violation ofRegulation 901.104 may have been committed
TR246-249
We do not want the Board to think we were not pleased by hearing the
cannons less that year.
We want the Board to know, when we did hear them go offwe
became disappointed and slipped back to ourdreaded lifestyle offeeling placed in a
prison. Hating eachtime we had to hear the gunshot blasts from these devices.
Only one
can understand the impact these devices have if you are forced to hearthem day in and
day out.
One single day ofthe cannon noise,
is too many days.
It’s not simple
annoyance. It’s a sound you just never get accustomed to. Never.
CONCLUSION
The similarity and consistency ofthe testimony ofwitnesses, neighbor Jerome Grossman,
son Michael Stuart, and friend James O’Neil along with the Complainants testimony,
Gregory Zak sound experts testimony,
and evidence introduced at the hearing
demonstrates that the noise from the propane cannons from the Frank Fisher caused an
unreasonable interference with the enjoymentof life.
This testimony and evidence
introduced at the hearing demonstrates that the noise from the Frank Fisher farm violates
the
Illinois’ numerical noise emission standards and constitutes an unreasonable
interference with the lives ofthe Complainants Ronald and Barbara Stuart in violation of
35
Ill. Admin.
Code s 900.102.
Frank Fisher failed to present any evidence or testimony
to disregardthe evidence and testimony presented by the Stuarts’.
Rather, FrankFishers
Briefpresents misquoted testimony ofthe Complainants witnesses, bold attacks on the
character ofthe Stuarts’, unsupported- conclusions or bald assertions that have no support
whatsoever in the record.
Therefore we request that the Board grant Ronaldand Barbara
Stuart the requested relief stated in our original brief.
Thank you foryour patience and time in reviewing our reply to the BriefofFrankFisher.
Due to the discrepancies in the contents ofthe Respondents’ Brief, it was necessary to
clarify some issues for the Board to review.
11
PROOF OF SERVICE
PCB 02-164
I, the undersigned, on oath state that I have served on the date ofJuly
13, 2004, the
attached
Reply BriefofBarbara Stuart and Ronald Stuart,
by U.S. First Class Mail,with
proper pre paid postage, upon the following persons:
Dorothy Gunn
Clerk
of IPCB
100 W. Randolph
St.
Ste.
11-500
Chicago, Ii. 60601
Bradley Halloran
Hearing Officer
100 W.
Randolph St.
Ste
11-500
Chicago, Ii. 60601
David Harding
Lopez and Harding
100 N. LaSalle St.
Ste.
1107
Chicago, I!. 6060k
Bobby Petrungarro
Assistant States Attn.
Will County
14 W.
Jefferson St.
Joliet, Ii. 60432
I, Barbara Stuart swear the information contained in these documents to be true to the
best ofmy belief and knowledge.
&
Barbara Stuart
(Complainant)
Notary Seal
SUBSCRIBED AND SWORN TO BEFORE ME THIS
/3
day of~9~Iy
,
2004
Ill
~otary
Public
~oj~
“OFFICIAL
SEAL”
DENISE
MAJEWSKI
COMMISSION EXPIRES
10/1
ALL FILINGS WERE SUBMITTED ON RECYCLED PAPER
