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05/04/95 ANNE SHEPARD v. ILLINOIS POLLUTION CONTROL

May 4, 1995

ANNE SHEPARD, JAMES VERHEIN, AND JEROLD LECKMAN, PETITIONERS-APPELLANTS,
v.
ILLINOIS POLLUTION CONTROL BOARD, NORTHBROOK SPORTS CLUB, AND THE VILLAGE OF HAINESVILLE, RESPONDENTS-APPELLEES.



Petition for Review of the Order of the Pollution Control Board. PCB No. 94-2. Chairman Claire A. Manning.

Rehearing Denied July 11, 1995. Petition for Leave to Appeal Denied December 6, 1995.

The Honorable Justice Rathje delivered the opinion of the court: Inglis and Thomas, JJ., concur.

The opinion of the court was delivered by: Rathje

JUSTICE RATHJE delivered the opinion of the court:

Petitioners, Anne Shepard, James Verhein, and Jerold Leckman, take an appeal from a final order entered by the Pollution Control Board (Board) dismissing their complaint against the Northbrook Sports Club (Club) and the Village of Hainsville (Village).

The complaint alleged that in 1987 the Village and the Club entered into an agreement whereby the Village annexed the Club's property. The Club constructed a new skeet and trap range, consisting of a clubhouse and several shooting stations on its property. Later, the Club expanded its shooting activities to include sporting clays. The complaint further alleged that the shooting activities took place primarily on Thursdays from 5 p.m. until 10 p.m. and on Saturday and Sundays, from 9 or 10 a.m. until 5 p.m. Sometimes the shooting activities took place on Wednesdays, Fridays, and holidays.

The complaint alleged that the gunfire from the shooting activities causes noise pollution, interferes with the enjoyment of the petitioners' homes, interferes with their recreational activities, and depresses their property values. The complaint further alleged that such sound emissions violated sections 23 and 24 of the Environmental Protection Act (Act) (415 ILCS 5/23, 24 (West 1992)) and sections 900.102, 901.102(a) and 901.104 of title 35 of the Administrative Code (Code) (35 Ill. Adm. Code ยงยง 900.102, 901.102(a), 901.104 (1991)). The complaint sought a cease and desist order for all sound emissions in violation of the Act, penalties for said violations, and that the Board adopt more specific criteria to eliminate such noise pollution.

The Club filed a motion to dismiss the complaint as frivolous, arguing that as a "skeet, trap and sports club," it was exempt from the Board's regulatory power. The Village also filed a motion to dismiss on the basis that the Village had no ownership interest in the Club property. The Board dismissed the petitioners' motion for discovery on the basis that it was not relevant to the issues before the Board.

On May 5, 1994, the Board dismissed the complaint. The Board found that the Club was "an organized amateur or professional sporting activity" and was therefore exempt from the Board's noise standards. The Board further found that petitioners' reliance on section 24 of Act was misplaced as section 24 did not set forth a violation of the Act. On June 23, 1994, the Board denied petitioners' motion for reconsideration. This appeal followed.

On appeal, petitioners raise the following issues: (1) whether or not sections 3.25 and 25 of the Act prohibit the Board from hearing noise pollution complaints that are a common-law nuisance; (2) whether the Board properly construed sections 3.25 and 25 of the Act; (3) whether the Board erred in placing the burden of proof for the exemption under sections 3.25 and 25 of the Act upon the petitioners; and (4) whether the exemption under sections 3.25 and 25 is constitutional.

Petitioners contend, first, that section 24 of the Act provides a general statutory cause of action that is enforceable before the Board. Section 24 provides as follows:

"No person shall emit beyond the boundaries of his property any noise that unreasonably interferes with the enjoyment of life or with any lawful business activity, so as to violate any regulation or standard adopted by the Board under this Act. " (Emphasis added.) 415 ILCS 5/24 (West 1992).

Since an administrative agency is a creature of statute, any power or authority claimed by it must find its source within the provisions of the statute by which it is created. ( Granite City Division of National Steel Co. v. Illinois Pollution Control Board (1993), 155 Ill. 2d 149, 171, 184 Ill. Dec. 402, 613 N.E.2d 719.) Section 5(d) of the Act provides that "the Board shall have authority to conduct hearings upon complaints charging violations of this Act or regulations thereunder." (415 ILCS 5/5(d) (West 1992).) A reading of other sections of the Act reveals an intention on the part of the legislature to create a general statutory prohibition. For example, section 9 of the Act provides: "no person shall: (a) cause or threaten or allow the discharge or emission of any contaminant into the environment in any State so as to cause or tend to cause air pollution in Illinois, either alone or in combination with contaminants from other sources, or so as to violate regulations or standards adopted by the Board under this Act." (Emphasis added.) 415 ILCS 5/9(a) (West 1992).

When interpreting a disputed statutory provision, the court must ascertain and give effect to the true intent and meaning of the legislature, considering first the statutory language. ( Waste Management of Illinois, Inc. v. Illinois Pollution Control Board (1991), 145 Ill. 2d 345, 348, 165 Ill. Dec. 875, 585 N.E.2d 606.) Those terms which are unambiguous, when not specifically defined, must be given their plain and ordinary meaning. ( Waste Management of Illinois, Inc., 145 Ill. 2d at 348.) The court will not insert words into legislative enactments when the statute otherwise presents a cogent and justifiable legislative scheme. 145 Ill. 2d at 348.

In contrast with section 9 dealing with air pollution, the plain language of section 24 provides no general cause of action under the Act. Therefore, the Board correctly concluded that petitioners had no cause of action under section 24 of the Act.

We also reject petitioners' argument that they have a cause of action pursuant to Board Rule 102. ...


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