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Village of Caseyville v. Cunningham

OPINION FILED OCTOBER 9, 1985.

THE VILLAGE OF CASEYVILLE, PLAINTIFF-APPELLEE,

v.

STEPHEN CUNNINGHAM ET AL., DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of St. Clair County; the Hon. Richard P. Goldenhersh and the Hon. Roger M. Scrivner, Judges, presiding.

JUSTICE HARRISON DELIVERED THE OPINION OF THE COURT:

Defendants, Stephen, Charles and Mary Cunningham, appeal from a judgment of the circuit court of St. Clair County granting plaintiff, the village of Caseyville, a permanent injunction against defendants. Defendants were enjoined from violating an ordinance which prohibited operation of defendants' refrigerated truck during certain hours in certain areas.

Defendants contend the Illinois Environmental Protection Act preempted the area of noise control and that the ordinance is invalid. They claim the injunction granted the village was improper and that defendants should have been granted an injunction enjoining enforcement of the ordinance. We affirm.

Defendants owned a truck and semitrailer which were used in the over-the-road transportation of commodities. The trailer included a refrigeration unit for preserving food. When not in use, the truck and trailer were parked behind a building in Caseyville owned by defendants. The refrigeration unit on the trailer was often left operating when the vehicle was parked at the lot in Caseyville.

In 1981, the village enacted ordinance No. 604, which, in pertinent part, provided:

"The following acts, conduct and conditions are hereby declared and defined to be nuisances, and unlawful, and when committed, performed or permitted to exist by any individual, firm, association or corporation within the territorial limits of the Village of Caesyville, are hereby declared to be unlawful and prohibited:

1. The operation and/or maintenance of motor transport engines, reefers and/or refrigerator units between the hours of 8:00 p.m. and 6:00 a.m. in any place within the Village of Caseyville in which a majority of the buildings, within a radius of one thousand (1,000) feet are used exclusively for residential purposes."

While not specifically stated in the ordinance or its title, the record shows the village and the defendants viewed the ordinance as a noise control measure. This is supported by the time limitations in the law.

The village police cited defendant Stephen Cunningham for numerous violations of the ordinance. (The other defendants were part owners of the vehicles.) Several residents of the area near the defendants' building testified as to a disturbing noise made by defendants' refrigeration unit on the trailer. A village police officer confirmed the fact of the noise from the unit.

• 1, 2 Defendants first claim the Environmental Protection Act (Ill. Rev. Stat. 1983, ch. 111 1/2, par. 1001 et seq.) preempts the field of regulation of noise, and thus the village did not have authority to enact the ordinance. The State legislation begins by declaring "it is necessary to establish a unified state-wide program for environmental protection." (Ill. Rev. Stat., 1984 Supp., ch. 111 1/2, par. 1002(a)(ii).) The Act also states that noise is among the environmental problems addressed by the legislation. Ill. Rev. Stat., 1984 Supp., ch. 111 1/2, par. 1002(a)(iii).

Defendants further rely on City of Des Plaines v. Chicago & North Western Ry. Co. (1976), 65 Ill.2d 1, 357 N.E.2d 433. There the court found that a city's attempt to regulate noise pollution was not within the home rule power granted by the Illinois Constitution, but this case is distinguishable. Although the court spoke of noise pollution being a matter of regional or statewide concern, "[a] careful reading of North Western Ry. discloses that the authority sought to be exercised under the noise-control ordinance * * * exceeded the city of Des Plaines' home rule power * * *. In North Western Ry., although the immediate facts dealt with noise emission within the city, the city admitted that the ordinance was intended to control emissions originating beyond its boundaries." County of Cook v. John Sexton Contractors Co. (1979), 75 Ill.2d 494, 512, 389 N.E.2d 553, 558-59.

Further, the village cites section 11-5-2 of the Illinois Municipal Code, which provides that municipalities "may prevent or suppress riots, routs, affrays, noises, disturbances, trespasses, and disorderly assemblies in any public or private place." (Emphasis added.) (Ill. Rev. Stat. 1983, ch. 24, par. 11-5-2.) Thus, there is a specific grant of authority to all municipal governments to control noise.

In addition, section 11-60-2 of the Code provides that municipalities "may define, prevent and abate nuisances." (Ill. Rev. Stat. 1983, ch. 24, par. 11-60-2.) This is a broad delegation of authority, and nuisance ordinances will be held invalid only when a municipality's determination that a particular activity is a nuisance is clearly erroneous. Village of Riverwoods v. Untermyer (1977), 54 Ill. App.3d 816, 822, 369 N.E.2d 1385, 1390.

The village ordinance neither attempts to set specific noise levels that are permissible nor does it reach beyond the village boundaries. Not every noise problem will be of statewide concern. We cannot find that loud mufflers, squealing tires or barking dogs are of such statewide concern. As the village argues, if defendants' argument regarding preemption is accepted, each municipality would have no choice but to ...


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