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09/28/89 the Village of Goodfield, v. Jan Jamison

September 28, 1989

THE VILLAGE OF GOODFIELD, PLAINTIFF-APPELLANT

v.

JAN JAMISON, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

544 N.E.2d 1229, 188 Ill. App. 3d 851, 136 Ill. Dec. 454 1989.IL.1545

Appeal from the Circuit Court of Woodford County; the Hon. W. Charles Witte, Judge, presiding.

APPELLATE Judges:

JUSTICE LUND delivered the opinion of the court. SPITZ and GREEN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LUND

On July 22, 1988, the Village of Goodfield, plaintiff, filed a complaint in the circuit court of Woodford County, seeking to permanently enjoin defendant Jan Jamison from operating a business located within one mile of plaintiff's corporate limits. On December 12, the court held plaintiff had failed to establish, by its burden of proof, that the proposed facility is offensive or unwholesome, or would create either a statutory or common law nuisance. Plaintiff now appeals.

Defendant intended to build a hog transfer station on Route 117, approximately one-half mile north and east of the corporate limits of plaintiff. The purpose of the transfer station was to allow local hog producers to bring their hogs to the station. That same day, when enough hogs to transport have been collected, defendant will have them taken to the market.

As grounds for its injunction, plaintiff alleged that the hog transfer station would result in a repugnant odor, decrease plaintiff's property values, limit commercial and residential growth in the area, correspondingly lowering business and tax revenues, increase truck traffic, increase noise, and lower the quality of life in the village, which would all work to create irreparable harm to plaintiff's residents. On October 14, 1988, a hearing was conducted. The court earlier determined the burden would be on plaintiff to prove defendant's business was a prospective nuisance.

Defendant was called as an adverse witness. He works as a livestock broker and dealer, with his offices being located in the Stock-yard Exchange Building in Peoria. He designed the plans for the facility himself. It is designed to handle a capacity of about 600 hogs per day. Local producers will bring the hogs in on small trucks, and the hogs will be leaving on larger trucks. He explained the purpose of the station was to accumulate and disburse hogs as rapidly as possible. Once they receive a semitrailer load, which is around 180 to 220 head, a truck will be called, and they will be transferred. He plans to operate five days per week, with a very limited operation on Saturdays. The hours would be approximately 6 a.m. to 8 p.m.

He explained the facility, as planned, is 176 feet by 66 feet. It will have a concrete impermeable pit located underneath it measuring 127 feet by 6 feet by 5 feet. The pit will have a concrete cap with a four-inch mouth. Each day, the waste will be washed down into the pit. He believes this will require 200 to 600 gallons of water. He does not intend to wash the pigs down while they are on the property or once they are on the trucks. He believes he will only have to clean the pit twice per year. However, he would drain it more often, if necessary. He thinks, since the pit will be mainly water, the only agitation necessary will be accomplished by the pumping of the pit. He has two local customers who have asked about purchasing the pumped-out fluid for fertilizer. The building's only ventilators will be located in the roof to allow the escape of heat. The design of the building would allow for the loading and unloading of hogs on a concrete ramp which comes directly to the building. The design also keeps any waste materials from escaping the building during loading.

It is possible that sometimes he may have to keep 20 to 30 pigs overnight. He will have a very limited amount of feed for those times. It is also possible a pig may die, in which case he would call a rendering company. However, in Peoria last year, they dealt with over 28,000 pigs and not one died.

This building is based on his ideas from 25 years of experience in the field. He read the materials the Environmental Protection Agency sent him. A facility of this type has not been built in Illinois. It is his opinion, based on his experience, that there would be no odor to the village.

Originally, he sought to build his business in northern Woodford County, but the zoning board would not change the zoning of the proposed sight. After he found the present location, he received a permit from the county zoning administrator. At this point, all construction has ceased pending resolution of this lawsuit.

Dr. Richard Vetter testified next. He is currently the director of research and development with A.O. Smith-Harvestore Products concerning animal production, feeding, and waste handling and storage. He was a professor at Iowa State for 16 years. He has visited hundreds of swine production facilities during his career.

He stated that pig waste is a higher odor-producing waste than that of other livestock. His experience is that swine facilities have an odor, and he has been at some that can be smelled more than one-half mile away. They also have, based upon the management of the facility, insects and rodents. He has reviewed the plans for the facility. He calculated the pit could hold 28,500 gallons. Based on an assumption of using 300 gallons of water per day, the pit would have to be drained three or four times per year. He also believes the pit, as designed, will be difficult to agitate. Without proper agitation, the solids will remain on the bottom. Also, the time of agitating is when the odor is the worst. A pit of this type can leak but, with proper construction, the probability of this can be kept low.

He explained it is desirous to set a facility up as far as feasible from a community because odors can travel some distance. However, the distance they can travel is very conditional upon the wind direction, humidity, time of year, and temperature. The American Society of Agricultural Engineers suggests a minimum distance of one mile. Assuming that there are westerly prevailing winds, which travel from southwest to northeast, the probability is the smell would be greater in the area to the east. It would also be stronger during the summer.

On cross-examination, he explained his main concern for odor was during the time of agitation. If the wind was blowing away from plaintiff, it would receive no odor. He also acknowledged most of his experience is with hog production facilities. These have more feed and waste present, which leads to more problems with mice and flies. This problem can be kept to a minimum with good husbandry techniques.

The next witness was Eric Ackerman, who has been employed by the Illinois EPA for 10 years. He is also a licensed professional engineer. His areas of responsibilities are livestock ...


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