RECEJvED
CLERK~SOFFICF
STATE
OF ILLINOIS
SEP
292003
Pollution Control Board
STATE OF ILLINOIS
James R. Thompson Center
Pollution
Control Board
100 West Randolph Street
-
Suite 11-500
Chicago, Illinois
60601
L. ERICKSON,
)
Complainant,
)
V
)
CHARLESTON CLASSIC
)
PCB
‘~‘‘~
-
HOMES
and LAWRENCE E.
)
VAN SOMEREN, JR.,
)
Respondent.
)
NOTICE OF FILING
TO:
L. Erickson
317 East Hawthorne Boulevard
Wheaton, Illinois
60187
PLEASE
TAKE NOTICE that on
September
___________,
2003
I filed with the Illinois
Pollution Board,
Motion
to
Dismiss Complaint filed on
behalf
Respondent, CHARLESTON
CLASSIC HOMES and LAWRENCE E. VAN SOMEREN
.,
a copy ojwhic
is attached and
hereby served upon you.
/
Thomas
A. Appel
-
#061825
14
APPEL
& APPEL, LTD.
18607 Torrence Avenue
-
Suite 2A
Lansing, Illinois
60438
708-474-8800
I, THOMAS A. APPEL, on oath state I served the within N
by mailing copies of same to the address
Lansing, Illinois, proper postage prepaid, this
1
RE CE ~
D
CLERR’S OFFICE
STATE
OF ILLINOIS
POLLUTION
CONTROL BOARD
SEP
2
JAMES R. THOMPSON CENTER
100 WEST RANDOLPH STREET, SUITE
11-500
CHICAGO, ILLINOIS 60601
STATE OF ILLINOIS
Pollution
Control Board
BEFORE THE
ILLINOIS POLLUTION CONTROL BOARD
L. ERICKSON
)
)
Complainant,
)
v.
)
PCB
l,LH~~-47
)
CHARLESTON CLASSIC HOMES,
)
INC., and LAWRENCE E. VAN
)
SOMEREN, JR.
)
)
Respondent.
)
MOTION TO
DISMISS COMPLAINT
Now Comes Respondents CHARLESTON CLASSIC HOMES and LAWRENCE
E.
VAN SOMEREN, JR. (hereinafter referred to as “Respondent”), by and through their attorneys,
APPEL & APPEL, LTD., pursuant to
Section
3 1(d) ofthe Environmental Protection Act, 415
ILCS
5/31(d)
,
and submit herein their Motion to Dismiss the Complaint of violations ofthe
Environmental Protection Act (noise pollution) filed herein by Complainant
L.
ERICKSON
(hereinafter referred to as “Complainant”).
1.
The complaint filed by Complainant
is frivolous.
The Complainant seeks relief for
which the Board does not have the authority to
grant.
Complainant has also failed
to allege a
cause of action for which the Board can grant relief.
2.
The Respondent owns the property at 311
East Hawthorne Boulevard
in Wheaton,
1
Illinois.
Currently, the property is under construction.
A single family residence is being built on
this property.
Only normal demolition and
construction of a new home has and
is being
performed at this site. Respondent has done nothing more on the subject property than demolish
an existing home, and
construct a new home.
No activities have taken place on the property
other than those associated with routine construction,
and all such construction activity has
occurred during normal daytime hours.
3.
The Respondent’s activities are specifically exempted under the Act.
Specifically,
under §901.107(d) ofTitle 35, Subtitle H, Chapter I, Part
901
of the Illinois Administrative
Code, the construction activities ofRespondent are an
exception to the Noise Pollution Act.
Section 901.107(d) provides:
“Sections 901.102 through 901.106 inclusive shall not apply
to sound emitted
from equipment being used for construction.”
Sections 901.102 through 901.106 apply to sound emission standards and limitations for property
line noise sources.
As such, Respondent has not violated any chapter ofthe Act.
4.
The immediate neighbor to
the west of the property has affirmed that the noise
involved is nothing more than ordinary construction noise, and that such noise has not been
disruptive to her family activities.
See Affidavit of Jean Van Wyk,
attached hereto as Exhibit
5.
The Complaint alleges that the noise
in question occurs only Monday through
Saturday during the hours of 7:00 a.m.
to 5:00 p.m.
See ¶~Js6,7ofComplaint.
Th~se
work times
are in full compliance
with Section 25.4(3) of the the Municipal Code of the Village of
Naperville, which exempts noise
“between the hours of7:00
a.m. and sunset, noises customarily
2
resulting from construction work”.
A copy of the relevantpart of such Code
is attached hereto as
Exhibit “B”.
WHEREFORE, Respondent CHARLESTON CLASSIC HOMES
and LAWRENCE
E.
VAN SOMEREN, JR. pray that the underlying Complaint be
dismissed.
)
)S 5:
CHARLESTON
LASSIC HOMES and
One of their attorneys
COUNTY OF COOK
)
LAWRENCE E. VAN SOMEREN, JR., being duly sworn on oath states that
he is the Owner of
CHARLESTON
CLASSIC HOMES, the Respondent herein; that he
is familiar with the facts
relating to
the allegations made heretin, that he has read the foregoing Response and that the facts
set forth therein
are true and correct.
ence B.
Van
Someren,
r.
SUBSCRIBED AND SWORN TO before me
this
~1J~j-l~
day of
~
,2003.
~‘fl~OJt~A
~
OFFiCiAL
SEAL
MARIS ~NE BEW~CK
NOTAR~
P1
jt~
I~
~
)F
LLJNO~S
MYCOMMl~,QN
E~APt~E5.
~2-11.~
I
certify that a copy of the
3
-,
Notary Public
STATE OF ILLINOIS
CERTIFICATE OF SERVICE
AFFIDAVIT
JEANVAN WYK,being duly sworn and
under
oath, states as follows:
1.
I reside at 1503
Scott Street in Wheaton, Illinois.
2. My residence is immediately westandnext door to
the building under construction by
Charleston Classic Homes at 311 East Hawthorne Boulevard in Wheaton, Illinois.
3. The noise from the demolition
and construction of a new home at 311
East Hawthorne
Boulevard
is
nothing more than the ordinary
building
noises
which
one
would
expect
in
the
construction ofa new home.
4. The construction activities havenotbeen disruptive of ourfamily activities.
Further affiant sayeth not.
VL~-~~--~
w:~2~
Jean~anWyk
VERIFICATION
Under penalties
as provided by
law
pursuant
to
Section
1-109 of the Code of Civil
Procedure, the undersigned certifies
that the statements
set
forth
in
this
instrument
are true
and
correct, except as to matters therein stated tobe on information and belief and as to such matters
the undersigned certifies as aforesaid that (s)he
verily believes the same to be true.
Jea~Van
Wyk
LX
25.4
Noise Limitations
No operation or activity directly under the contrOl of the property user shall cause or
create noise in excess of the sound levels prescribed below or the standards
established by the Illinois Environmental Protection Agency or state statute
In case of
conflict the most restrictive standard shall apply~
1.
Permitted
Sound Levels:
Sound levels in the applicable district may not exceed
the following values at the specified times when measured at the adjoining lot
lines or zoning area district boundary:
7 A.M. to7P.M
Residential District
55dB(A)
Other District
62dB(A)
7 P.M. to 7 A.M.
50 dB (A)
55 dB (A)
2.
Measurement:
Sound
levels shall be measured with a standard sound level meter
•
calibrated to the standards of the United States Bureau of Mines.
The “A”
network “slow” meter response ofthe sound level meter shall be used
Impulsive
type noises shall be subject to the performance standards herein prescribed,
provided that such
noises shall be capable of being accurately measured with
such equipment.
Noises capable of being so measured shall be tl~iose
noises
which cause fluctuation of the needle of the sound level meter with a variation of
no more than plus or minus (+ or
-)
two (2) decibels.
3.
Exemrtions:
The followSSing u~é~:änd~ä~tMties
shall be exempt from the noise
~leve)
regulations:
a
Between the hours of 7 00
a
m
and sunset,
noises customarily resulting
•~.from
construction.:work arid 11hY~a~&öfgrôund~:
b.
The
noises of safety signals, burglar alarms, emergency valves, warning
devices, aircraft and railroads,
emergency generators, snow plowing,
mosquito abatement,
and emergency equipment used only during times of
public emergency such as flooding, tornadoes, or other natural causes
c.
Church
bells, chimes,
and carillons.
d.
The normal and intended use of recreational facilities withiii
property of
schools, colleges,
and
public parks;
between the
hours of 9:00 A.M. and
10:00 P.M.
e.
Musical performances on any property within the City when approved
by
the City Council at least fourteen (14) days in advance of the performance.
The
City Council
may place time limitations upon the approval.
151