ILLINOIS POLLUTION CONTROL BOARD
DALE L. STANHLBEL,
1
Complainant,
1
)
vs.
)
1
TOM HALAT d/b/a TOM'S
)
PCB 07-17
VEGETABLE MARKET
)
(Citizens Enforcement-Air, Noise)
Respondent.
1
NOTICE OF FILING
To: Mr. Dale L. Stanlube1
10328 Fleetwood Street
Huntley, Illinois 60 142
Please take notice, that I have on January 8,2006 filed with the Office of the Clerk of the
Pollution Control Board the attached
MOTION TO DISMISS OR, IN THE ALTERNATIVE
MOTION FOR JUDGMENT ON THE PLEADINGS,
a copy of which is herewith served upon
you.
Steven
J. Greeley, Jr.
CERTIFICATE OF SERVICE
I, Steven J. Greeley, an attorney, on oath state that I mailed a copy of the above documents to the
above-named
person(s) at the above-designated address by depositing same in the U.S. Mail in Marengo,
Illinois, on or before the hour of 5:00 p.m., on January 9, 2006, with proper postage prepaid.
Steven J. Greeley, Jr.
FRANKS,
GERKIN
&
McKENNA P.C.
Attorneys for Respondent
19333 E.
Grant
Hwy.,
P.O. BOX 5
MARENGO, IL 60152
Telephone
(8 15) 923-2 107
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JANUARY 9, 2007
ILLINOIS POLLUTION CONTROL BOARD
DALE L. STANHZBEL,
1
1
Complainant,
1
1
vs.
1
TOM HALAT d/b/a TOM'S
)
PCB 07-17
VEGETABLE MARKET
)
(Citizens Enforcement-Air, Noise)
1
Respondent.
)
1
1
MOTION TO DISMISS OR, IN THE ALTERNATIVE MOTION FOR
JUDGMENT ON THE PLEADINGS
NOW COMES, the Respondent, Thomas C. Halat, by and thru his attorneys Franks,
Gerkin
&
McKenna, P.C., and for his motion states as follows:
I. REOUEST FOR DISMISSAL UNDER 735 ILCS 5/2-619 (a (9) AS
AUTHORIZED
BY 35 ILL. ADM. CODE SECTION 101,500
1.
Petitioner filed his formal complaint in this matter on September 18,2006, which
is incorporated herein by reference.
2.
Paragraph six of that motion alleges "(noise-air) air-the release of propane
in the air" "noise"-the firing off of four propane cannons
9:30 a.m. to 5.30 p.m. in Tom's Halat
Sooth (sic) lot 102 14 Algonquin Road,
Huntley, Illinois 60 142.
3.
Paragraph seven alleges that said propane cannons were utilized
"Aug-
Sept-Oct-2005-late summer early fall Aug-Sept-Oct-2006-late summer early fall seven day's
week from-dawn-to-dusk every few seconds-still continuing as of
9/14/2006."
4.
Under Section 735 ILCS
512-6 19 (a) (9) as authorized by 35 Ill. Adm. Code
Section 10 1.500 a motion to dismiss may be brought when "the claim asserted against defendant
is barred by other affirmative matter avoiding the illegal effect or of defeating the claim."
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JANUARY 9, 2007
5.
As indicated in the Affidavit of Thomas C. Halat, attached hereto and
incorporated by reference as Exhibit A, permits were obtained through the Illinois Department
of Natural
Resources/Illinois Conservation Police at all times in which propane cannons were
utilized on the property of Tom's Farm Market and Greenhouses, Inc. At no time were cannons
utilized without a permit.
6.
520 ILCS
92.37, which was first enacted in 1988, gives specific authority to the
Illinois Department of Natural Resources and the Illinois Conservation Police to issue permits
specifying the means and methods by which wildlife may be removed.
7.
The State of Illinois, through the Illinois Department of Natural Resources and
the
Illinois Conservation Police have permitted the use of the propane cannons by
Tom's Farm
Market and Greenhouses, Inc., therefore, those agencies have utilized it's specific authority to
allow the cannons despite any possible conflict with the Pollution Control Act under
4 15 ILCS
5/24 which was originally adopted prior to 1988 and is a more general statute then 520 ILCS
Y2.37. See Skip Johnson v. State Electoral Board, 53 Ill. 2d 256,290 N.E. 2d 886 (1972)
("Where two statues conflict, the more recent is deemed to take precedence over the earlier.")
See also Sierra Club v.
Kenney, Ill. 2d 1 10,429 N.E.2d 124 1 (1981), ("Where two statues
conflict, the specific statue controls over the general statue").
WHEREFORE, Thomas C. Halat, hereby requests that the case be dismissed pursuant to
the above referenced statute and any other or further relief that this Board deems just and
equitable.
11. REOUEST TO DISMISS BASED ON THE FILING OF A FRIVOLOUS
COMPLAINT UNDER 35 ILL. ADM. CODE 101.202 AND A REOUEST FOR
DISMISSAL AND OR JUDGMENTON THE PLEADINGS UNDER 35 ILL, ADM. CODE
101,500, BASED ON 735 ILCS
5/2-615.
1-7.
Paragraphs one thru seven are re-alleged and are incorporated herein by
reference.
8.
This Board has the authority to dismiss
a complaint as frivolous on it's own
motion or on the motion of the respondent under 35
Ill. Adm. Code 103.202 (b) and the Board
has the authority to dismiss pursuant to 735 ILCS
5/2-615 when a pleading is "substantially
insufficient in law, or that the action be dismissed, or that a pleading be made more definite and
certain in a specified manner, or that designated material matter be stricken out, or that
necessary parties be added, or that designated mis-joined parties be dismissed, and so forth."
9.
A complaint is frivolous under 35
Ill. Adm. Code 101.202 when it requests "relief
that the Board does not have authority to grant, or a Complaint that fails to state a cause of
action upon which the Board can grant relief7.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JANUARY 9, 2007
10.
As a preliminary matter, the complainant has not named the correct respondent
in
this action, as stated in the Affidavit of Thomas
C. Halat, attached hereto and incorporated
herein by reference, Thomas
C. Halat is the President of Toms' Farm Market and Greenhouses,
Inc., therefore, any reference to Tom's Vegetable Market is a misnomer as no such business
entity called
Tom's Vegetable Market exists at the address of 102 14 Algonquin Road, Huntley,
Illinois 60142 as alleged in the complaint.
11.
The complaint is also substantially insufficient in law and is frivolous as defined
above because:
(A)
No specific conduct of Thomas C. Halat is personally alleged in the complaint;
(B)
The complainant fails to allege how the release of propane in the air, even if
released, creates air pollution under 415 ILCS 5/24 and 35
Ill. Adm. Code
900.102;
(
C)
No affect should be given to the allegations contained in the complaint, based on
the clearly contradictory statements in paragraphs six and seven regarding the
times of the alleged propane cannon noise. In paragraph six, complainant alleges
the firing off of four propane cannons from
9:30 a.m. to 5:30 p.m. in Tom Halat7s
South lot 102 14 Algonquin Road, Huntley, Illinois 60 142. However, in paragraph
seven, the complainant alleges that the propane cannons are utilized "from-dawn-
to-dusk". This Board can take judicial notice of the fact that the times alleged in
paragraph six are inconsistent from the dawn to dusk statement in paragraph
seven because through all times alleged in the complaint dawn to dusk is not
exactly between
9:30 a.m. and 5:30 p.m. Through all periods of time from
August
thru October of each year dawn precedes 9:30 a.m. and thru most of that
period of time dusk is later then
5:30 p.m;
(D)
The statements were averred under oath therefore, the inconsistencies should
nullify the allegations and all allegations in the complaint should not be
considered as stated in
Shipherd v. Field, 70 Ill. 438 (1873) ("That which is
contradictory shall be rejected;)
(E)
Also, the complaint in this matter is too vague and does not state a cause of action
because it fails to identify the specific acts by individuals and the specific dates
on which those acts occurred, and the specific instance which caused a violation
of the identified statutes. Specifically, under 415
ILCS 5/24, no facts were stated
alleging unreasonable interference with the enjoyment of the plaintiffs life or
with any lawful business or activity of the plaintiff Specifically, the allegation
"headache-nervous=my five year old beagle has to be sedated- I can't enjoy my
own backyard or patio for the last two years-the noise and loud loud popping
sound" is not sufficient to identify any specific effect on the plaintiff. The above
quoted statement in the complaint does not identify to whom any headache or
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JANUARY 9, 2007
nervousness has occurred or how the sound has caused the complainant to fail to
be able to enjoy his backyard or patio for the last two years;
(F)
In addition, the complaint has failed to allege how 35
Ill. Adm. Code 900.102 was
allegedly violated as no violation of any noise emission have been made in the
compliant which exceed those established by statue and in the administrative
code;
(G)
Also, under paragraph ten of the complaint, the complainant sites
"Stewart
v. Fisher, PCB-02- 164 Citizens Enforcement-Noise" as a substantial
similar case that is already pending before the Board against this respondent for
the same alleged pollution. The Stewart v. Fisher matter does not involve either
of the respondents and should be stricken from the compliant.
(H)
Overall, the complainant has not submitted a complaint which meets the standard
required of a complaint to be comprehensible or based in fact or law to allow this
Board to grant the relief requested to the complainant.
WHEREFORE, the Respondent, Thomas
C. Halat, hereby requests that the matter be
dismissed or that Judgment enter in favor of Thomas C. Halat and against the complainant and
any further or other relief that this Board deems just and equitable.
Respectfully Submitted,
FRANKS, GERKIN
&
McKENNA, P.C.
By:
Steven
J. Greeley, Jr.,
FRANKS, GERKIN
&
McKENNA, P.C.
Attorneys for Respondent
19333
E. Grant Hwy, P.O. BOX 5
Marengo, Illinois 60 152
Telephone:
(8 15)-923-2 107
Fax:
(8 15)-923-2 107
S:\Docs\Steven\Client
BesWalat, Tomb40tion
12
26
2006.wpd
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JANUARY 9, 2007
ILLINOIS POLLUTION CONTROL BOARD
November 2,2006
DALE L. STANHIBEL,
)
Complainant,
)
vs.
TOM
HALAT d/b/a TOM'S
)
PCB 07-17
VEGETABLE MARKET
)
(Citizens Enforcement-Air, Noise)
Respondent.
)
1
AFFIDAVIT
I, Thomas C. Halat, on oath, hereby affirm:
1.
That I am the Respondent in the above entitled and matter and I am
President of Tom's
Farm Market and Greenhouses, Inc.
2.
Tom's
Farm Market and Greenhouses, Inc. does not do business as Tom's
Vegetable Market as alleged in the Complaint in this matter incorporated herein by reference.
3.
I, as an agent of Tom's Farm Market and Greenhouses, Inc. obtained
nuisance animal removal permits from the Illinois
Conservation Police/Illinois Department of
Natural Resources to allow for the use of propane canons as a way to remove
redwing black birds
from the property.
4.
No propane canons were utilized at any other time besides those times
authorized by said permits, copies of which are attached hereto and incorporated by reference as
group exhibit
A.
5.
All permits obtained were in
full force and effect for all dates and
times in which propane canons were utilized and propane cannons were specifically authorized
as a device able to be utilized under all permits. In 2005, propane cannons were utilized in the
southern portion of the property located at 1 02 14 Algonquin Road, Huntley, Illinois 60 142
which is adjacent to the property of the complainant, from August 4,2005 to September 4,2005.
No cannons were utilized at that location in August prior to the issuance of the permit nor were
any utilized after the permit expired on September 4,2005, as no need for animal removal
existed at the time.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JANUARY 9, 2007
6.
In 2006, propane cannons were only utilized for removal of redwing black
birds during the period of time authorized by the permit, September 8,2006 to October 8,2006.
No propane cannons were utilized before or after these dates in 2006 as no need for animal
removal existed because the sweet corn planted in that area was not attracting
redwing black
birds prior to September 8,2006 and the crops were picked prior to October 8,2006.
FURTHER AFFMNT SAYETH NOT
Respectfully Submitted,
Thomas
C. Halat
Thomas
C. Halat
SUBSCRIBED and SWORN to
before me this .3 day
of
CRyr
"-
200y
Notary Public,
State
of Illinois
FRANKS, GERKI~J
&
M~KE
Attorneys for Respondent
19333
E. Grant Hwy, P.O. BOX 5
Marengo, Illinois 60 1 52
Telephone: (8 15)-923-2 107
Fax: (8 15)-923-2 107
S:\Docs\Steven\Client files\Halat, Tomkffidavit 12 26 2006wpd.wpd
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JANUARY 9, 2007