Roti v. LTD COMMODITIES, 2-04-0199.

• Citation: 823 N.E.2d 636,355 Ill. App.3d 1039,291 Ill.Dec. 344
• Decision Date: 09 February 2005
• Docket Number: No. 2-04-0199.,2-04-0199.
• Parties: Anthony ROTI, Karen Roti, Paul Rosenstrock, and Leslie Weber, Petitioners-Appellees, v. LTD COMMODITIES, Respondent-Appellant (The Pollution Control Board, Appellee).
• Court: United States Appellate Court of Illinois

823 N.E.2d 636

355 Ill. App.3d 1039

291 Ill.Dec. 344

Anthony ROTI, Karen Roti, Paul Rosenstrock, and Leslie Weber, Petitioners-Appellees, v. LTD COMMODITIES, Respondent-Appellant (The Pollution Control Board, Appellee).

No. 2-04-0199.

Appellate Court of Illinois, Second District.

February 9, 2005.

Joseph E. Kolar, Baizer & Kolar, P.C., Highland Park, for LTD Commodities.

Lisa Madigan, Attorney General, Gary S. Feinerman, Solicitor General, Nadine J. Wichern, Assistant Attorney General, Chicago, for Illinois Pollution Control Board.

Anthony Roti, Lake Forest, pro se.

Karen Roti, Lake Forest, pro se.

Paul Rosenstrock, Lake Forest, pro se.

Leslie Weber, Lake Forest, pro se.

Justice GILLERAN JOHNSON delivered the opinion of the court:

The petitioners, Anthony Roti, Karen Roti, Paul Rosenstrock, and Leslie Weber, filed a complaint with the Illinois Pollution Control Board (the Board), alleging that the respondent, LTD Commodities, had committed various acts of noise pollution. Following a hearing, the Board determined that LTD had violated the noise nuisance provisions of section 24 of the Illinois Environmental Protection Act (the Act) (415 ILCS 5/24 (West 2002)) and section 900.102 of the Board's administrative regulations (the Regulations) (35 Ill. Adm.Code § 900.102 (2002)). The Board fined LTD $15,000 and ordered it to shut down nighttime operations and disconnect the back-up beeper on its yard tractor. The Board ordered that as an alternative to shutting down nighttime operations and disconnecting its back-up beeper, LTD could construct a noise wall. LTD appeals from the February 15, 2001, July 24, 2003, and February 5, 2004, orders of the Board finding it a noise nuisance and ordering the above-described remedies. We affirm.

I. BACKGROUND

A. The Parties and Their Dispute

LTD is a mail order catalog company that sells household items, toys, and clothing. LTD's corporate headquarters and warehouse are located at 2800 North Lakeside Drive, in Bannockburn, Illinois. LTD commenced operations in Bannockburn in 1986. The petitioners are homeowners who reside on Wedgewood Drive in Lake Forest, Illinois. The petitioners moved into their homes between 1988 and 1992. LTD and the petitioners share a common property line that is also the boundary line between Bannockburn and Lake Forest.

In the fall of 1996, the noise generated by LTD's warehouse operations began to disturb the petitioners. On July 22, 1998, the petitioners filed a complaint with the Board, alleging that LTD was violating the numeric noise restrictions set forth in the Act and the Regulations. The petitioners additionally alleged that LTD was a noise nuisance. Between November 1, 1999, and May 24, 2000, the Board conducted a hearing. The following evidence was introduced at the hearing.

B. The Administrative Hearing

1. LTD's Warehouse Operations

LTD is a privately owned catalog company that sells only to business customers. LTD does not manufacture any of its products. LTD buys products from various manufacturers. Products are shipped to LTD by truck. The products are received at the truck docks located at the north side of LTD's warehouse. Products are unloaded by LTD employees and then stored in the warehouse until they are repackaged and shipped to customers.

LTD purchased its Bannockburn facility in 1986. At that time, the warehouse was 100,000 square feet and equipped with eight truck docks. In 1989, LTD purchased adjacent land and expanded its warehouse to 200,000 square feet and 26 truck docks. In 1995, LTD expanded its warehouse to 400,000 square feet.

During its busy season, which is August through December, LTD employs 1,200 to 1,300 people. LTD runs a first shift from 5:30 or 6 a.m. until 2 or 3 p.m. LTD runs a second shift from 3:30 p.m. until 12:30 a.m., at times extending to between 1:30 and 3 a.m. LTD operates Mondays through Fridays all year and on Saturdays during the Christmas season. According to Michael Hara, LTD's chief operating officer, if LTD were prohibited from running a second shift, "it would destroy the business."

The trucks delivering products to and shipping products from the warehouse are not owned by LTD. The drivers of the trucks are not LTD employees. When trucks arrive at LTD, they enter the lot from Lakeside Drive and proceed to the staging area at the north end of the warehouse. To avoid backups, LTD schedules trucks to arrive at half-hour intervals. When trucks arrive early, they stand idling on Lakeside Drive or in the north end of the parking lot. While idling, the truck drivers sometimes shout or honk their horns.

The staging and truck dock areas are 8 to 12 feet below grade. Trucks entering and exiting these areas must drive up and down a ramp. After trucks drive down the ramp, they typically release the air from their air brakes. The release of the air creates an abrupt hissing sound. The hissing sound is classified as an "impulse noise." An impulse noise is a noise that becomes loud quickly and fades quickly. It can be heard over other significant background noise. When driving up the ramp, trucks must accelerate, which also creates an impulse noise.

When down in the staging and truck dock area, trucks disconnect from their trailers, using a vehicle known as a "yard tractor." The yard tractor backs up against the trailer, connects to it, and moves the trailer to a dock to be loaded or unloaded. After a trailer is loaded or unloaded, it is removed from the dock, backed up to a retaining wall at the north end of the staging area, and eventually reconnected with its truck. The yard tractor emits several impulse noises.

The connecting and disconnecting of the trailers creates a metal-on-metal booming sound. As the yard tractor moves the trailers, the trailer doors typically bang around because they are unhitched. Sometimes when the yard tractor places a trailer at the retaining wall, the trailer hits the rubber bumpers. This creates an abrupt noise and makes the ground vibrate. The yard tractor itself has a loud motor and also a back-up warning beeper that sounds every time the tractor is driven in reverse.

In the fall of 1996, Hara became aware that residential neighbors of LTD were complaining regarding noise. Hara testified that LTD took several steps to alleviate the noise. LTD talked to the truck drivers about shouting and honking their horns. LTD implemented a policy that prohibited trucks from idling on the north end of the parking lot, which is the same grade level as the neighboring residences. LTD hired a guard to ensure enforcement of its policy. LTD acquired a yard tractor with a quieter engine. LTD did not disconnect the back-up warning beeper on the yard tractor due to liability concerns. LTD considered building a noise wall, but decided against it because such a wall would be expensive.

2. The Petitioners' Concerns

Petitioner Paul Rosenstrock purchased his property on Wedgewood Drive in 1987. He paid approximately $450,000 for the land and the house he built upon the land. He and his daughter, who was nine years old at the time of the hearing, moved into the Wedgewood residence in 1988. Rosenstrock was aware of the nearby commercial property when he purchased his property. While the house was being built, he requested that the builder add extra insulation for noise abatement.

LTD's trucking operation did not disturb Rosenstrock until some time after 1994, when LTD expanded the warehouse and added more trucking docks. Currently, from inside his home, Rosenstrock can hear truck air brakes releasing, trailer doors banging, horns honking, the connecting and disconnecting of the yard tractor, the yard tractor's engine, and the yard tractor's back-up warning beeper. Rosenstrock can hear the noise even with his windows shut. Rosenstrock sometimes feels vibrations in his home when the yard tractor backs up a trailer against the retaining wall. One time, a light fixture fell from his ceiling due to the vibrations.

The noise from LTD is frequent and disturbs Rosenstrock's ability to fall asleep. The noise often awakens him at night. The noise has at times woken his daughter from a sound sleep and frightened her. Rosenstrock testified that the noise is "tremendously annoying, very disruptive of my life and my house." Rosenstrock recorded numerous dates and times he and his daughter were disturbed late at night or early in the morning by the noise.

Petitioners Anthony and Karen Roti purchased and moved into their home on Wedgewood Drive in August 1990. The Rotis paid $525,000 for the home. The Rotis were aware of the proximity of LTD. They did not consider at the time they purchased the home that the noise generated by LTD would be problematic. The Rotis resided in the home with their five children, ages 5 through 16 at the time of the hearing.

In 1996, the Rotis began hearing noise from LTD's dock area. According to Karen Roti, the noise "went on all day and night," Monday morning through Saturday afternoon. The noise sounded like "loud bangs" and "nonstop beeping." They could hear the noise even with their windows closed. Sometimes, the Rotis would feel vibrations in their home.

The noise was so loud that the Rotis and their children could not fall asleep or stay asleep. The noise caused Anthony Roti to be irritable. Anthony found it difficult to work from home on his computer. The noise caused Karen Roti to be tired, tense, and crabby. In order to fall asleep over the noise, Karen Roti often took Tylenol with codeine or Benadryl or had a couple of beers. The Roti children found it difficult to study.

Petitioner Leslie Weber purchased her property on Wedgewood in 1988. She bought the lot for $223,000 and then spent $453,000 to build a home on the lot. Before purchasing the lot, Weber discussed with her husband the impact that the noise from LTD and the nearby tollway might have on the resale value of the property. Weber and her husband decided to purchase the property...