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08/28/95 DISCOVERY SOUTH GROUP v. ILLINOIS

August 28, 1995

DISCOVERY SOUTH GROUP, LTD., MUSIC CENTER ASSOCIATES LTD. PARTNERSHIP, AND TINLEY PARK JAM CORP., PETITIONERS-APPELLANTS,
v.
ILLINOIS POLLUTION CONTROL BOARD AND VILLAGE OF MATTESON, RESPONDENTS-APPELLEES.



APPEAL FROM ORDER OF THE ILLINOIS POLLUTION CONTROL BOARD. PCB No. 90-146.

Rehearing Denied October 23, 1995.

The Honorable Justice Wolfson delivered the opinion of the court: Campbell, P.j. and Braden, J., concur.

The opinion of the court was delivered by: Wolfson

JUSTICE WOLFSON delivered the opinion of the court:

Robert Frost wrote: "Good fences make good neighbors." But what happens when the problem is not something that can be contained by a fence? And when the right of one neighbor to conduct its business enterprise must be measured against the other neighbor's enjoyment of life?

The World Music Theater, an outdoor amphitheater located in Tinley Park, Illinois, opened for business on June 2, 1990. It became immediately apparent to some of the residents of the neighboring towns of Matteson (Matteson) and Country Club Hills (CCH) that the World Music Theater was going to be a problem. Excessive noise was emanating beyond the boundaries of the amphitheater, interfering with their lives and activities.

On August 2, 1990, the Village of Matteson filed a complaint with the Illinois Pollution Control Board (Board) against the owners and operators, Discovery South Group Ltd., Music Center Associates Limited Partnership, and Tinley Park JAM Corp., (collectively referred to as the Theater) alleging violations of the Illinois Environmental Protection Act (the Act). Proceedings on the complaint spanned three years, encompassing several hearings.

An interim order was issued on April 25, 1991, and on February 25, 1993, the Board entered its 59-page final opinion and order. In it the Board concluded that the Theater had violated section 24 of the Act (415 ILCS 5/24 (West 1992)) and sections 900.101 and 900.102 of the Illinois Administrative Code (the Code)(35 Ill. Admin. Code ยงยง 900.101, 900.102) on 26 occasions during 1990, 1991 and 1992.

To insure future compliance, the final order required the Theater to conduct sound monitoring during all theater events for three years from the date of the order. A minimum of three monitoring stations was mandated. Monitoring equipment and procedures prescribed by Code regulations were to be used. The order established specific sound level restrictions. A $13,000 civil penalty for violations that occurred in 1991 and 1992 was imposed.

The Theater has petitioned this court for review of the Board's final order in accordance with section 41 of the Act (415 ILCS 5/41 (West 1992)), and raises two issues: (1) whether the Board's finding that the Theater violated section 24 of the Act and sections 900.101 and 900.102 of the Code is against the manifest weight of the evidence, and (2) whether the remedy fashioned by the Board imposes stricter standards upon the Theater than provided for in the applicable regulations and is arbitrary, unduly restrictive, and violative of the Theater's State constitutional rights to freedom of speech and equal protection.

I. The Violation

The Board found that the Theater violated section 24 of the Act and sections 900.101 and 900.102 of the Code. Section 24 of the Act states:

"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 or activity, so as to violate any regulation or standard adopted by the Board under this Act."

Title 35, Subtitle H, Chapter I, Part 900 of the Code, contains the general provisions of the Pollution Control Board, implementing section 25 of the Act, as authorized by section 27 of the Act. *fn1 Section 900.101 of the Code defines noise pollution as "the emission of sound that unreasonably interferes with the enjoyment of life or with any lawful business or activity." Section 900.102 of the Code, entitled "Prohibition of Noise Pollution," states in pertinent part:

"No person shall cause or allow the emission of sound beyond the boundaries of his property *** so as to cause noise pollution in Illinois, or so as to violate any provision of this Chapter."

These provisions of the Act and Code have been interpreted by the Illinois Supreme Court as:

"***prohibiting emissions that unreasonably interfere with life or activities, whether such emissions may be said to violate section 24 generally or whether they are emissions which more specifically may be said to violate a particular Board regulation by exceeding, for example, the maximum permissible decibels which may be by a regulation emitted to a certain classification of land." Illinois Coal Operators Association v. Pollution Control Board (1974), 59 Ill. 2d 305, 309-10, 319 N.E.2d 782; see also, Ferndale Heights Utilities Co. v. Illinois Pollution Control Board (1976), 44 Ill. App. 3d 962, 358 N.E.2d 1224, 3 Ill. Dec. 539.

In the present case, no numeric data concerning noise emissions by the Theater were relied on by the Board to determine a violation. In reaching its decision that the Theater violated the cited provisions of the Act and Code, the Board relied on testimonial accounts of how noise emissions from the Theater interfered with the enjoyment of life.

During hearings that were held, a number of Matteson residents described how the noise emanating from the Theater during various concerts or events was so loud that it disturbed their sleep and the sleep of their children, even though the windows of their homes were closed and air conditioners were running. One person reported feeling vibrations from the music while in his own home. Several persons reported that the walls of their home vibrated and windows rattled. Others were unable to hear their televisions, when playing at regular volume, over the noise from the Theater. The noise forced some persons to retreat indoors or caused them to limit their use of their own backyards.

Testimonial accounts of a similar nature have been found to be sufficient to support a Board's finding that a noise source caused pollution. In Ferndale Heights Utilities Co. v. Illinois Pollution Control Board (1976), 44 Ill. App. 3d 962, 358 N.E.2d 1224, 3 Ill. Dec. 539, this type of narrative evidence of unreasonable interference with enjoyment of life and activities constituted proof of a violation by a property-line noise source. There was no need to show that the noise source exceeded numerical limitations.

Conceding the viability of the narrative standard, the Theater argues that the admissible evidence presented in this case was insufficient to justify a finding that it emitted noise pollution pursuant to section 24 of the Act. The Theater contends (1) hearsay evidence was received and relied upon by the Board in reaching its decision, (2) the testimony properly received did not justify a finding that the sounds emanating from the Theater constituted noise pollution, and (3) the Board did not properly consider all of the factors found in section 33(c) of the Act.

STANDARD OF REVIEW

The standard by which this court reviews a decision of an administrative agency is the manifest weight standard. ( E.P.A. v. Pollution Control Board (1993), 252 Ill. App. 3d 828, 624 N.E.2d 402, 191 Ill. Dec. 553.) The reviewing court's function is to ascertain whether the findings and decision of the agency are against the manifest weight of the evidence. ( Murdy v. Edgar (1984), 103 Ill. 2d 384, 391, 469 N.E.2d 1085, 83 Ill. Dec. 151; Davern v. Civil Service Comm'n (1970), 47 Ill. 2d 469, 471, 269 N.E.2d 713; Middleton v. Clayton (1984), 128 Ill. App. 3d 623, 630, 470 N.E.2d 1271, 83 Ill. Dec. 851.) An administrative agency decision is against the manifest weight of the evidence only if the opposite conclusion is clearly evident. Whelchel v. Edgar (1990), 195 Ill. App. 3d 406, 409, 552 N.E.2d 394, 142 Ill. Dec. 44; Burke v. Board of Review, Illinois Department of Labor (1985), 132 Ill. App. 3d 1094, 1100, 477 N.E.2d 1351, 87 Ill. Dec. 823; Petraitis v. Board of Fire & Police Comm'rs (1975), 31 Ill. App. 3d 864, 867, 335 N.E.2d 126. A decision is not against the manifest weight of the evidence, and must be sustained if any evidence fairly supports the determination of the administrative agency. ( Farmers State Bank v. Department of Employment Security (1991), 216 Ill. App. 3d 633, 576 N.E.2d 532, 159 Ill. Dec. 863.) The reviewing court must not reweigh the evidence or make an independent determination of the facts. Abrahamson v. Illinois Department of Professional Regulation (1992), 153 Ill. 2d 76, 88, 606 N.E.2d 1111, 180 Ill. Dec. 34. The mere fact that an opposite conclusion is reasonable or that the reviewing court might have ruled differently will not justify reversal of the administrative findings. ( Petraitis, 31 Ill. App. 3d at 867.) If the record contains evidence to support the agency's decision, it should be affirmed. Abrahamson, 153 Ill. 2d at 89, 180 Ill. Dec. 34, 606 N.E.2d 1111.

(a) Reliance on Hearsay Evidence

The Theater first argues that the Board's determination was against the manifest weight of the evidence because the Board relied on inadmissible hearsay evidence.

The evidence which the Theater claims to be inadmissible hearsay consists of two exhibits containing compilations of telephone complaints received by the Matteson police department and a third exhibit consisting of copies of a series of letters, sent to the Theater by the Country Club Hills city manager, which contains a compilation of telephone complaints received by the CCH police department.

The Theater presented this same hearsay claim to the Board in its motion for reconsideration. The Board affirmed the hearing officer's admission of the evidence, finding that (1) these documents were admissible under the public records exception to the hearsay rule, (2) the documents were admissible under the rules of Administrative Procedure, (3) the Theater was estopped from challenging the admissibility of the documents because it presented a similar exhibit showing dates and locations of complaints, based upon the same police reports, and (4) that even if the documents were inadmissible, it was harmless error to have admitted them because the Board would have reached the same determination without the evidence.

Section 10-40(a) of the Act (5 ILCS 100/10-40(a) (West 1992)), the administrative rule relied ...


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