J
ames M. Knox
ILLINOIS POLLUTION CONTROL BOARD
RECERFED
CLERK'S OFFICE
AUG 0 Li 2008
L
STATE OF ILLINOIS
" Pollution Control Board
PCB 07-97
(Citizens Enforcement - Noise)
KYLE NASH,
Complainant,
v.
LOUIS JIMENEZ,
Respondent.
lJ
NOTICE OF FILING AND PROOF OF SERVICE
TO: Kyle Nash
1630 W. 33rd
Place
Chicago, IL 60608
PLEASE BE ADVISED that on the 5
th
day of August, 2008, Respondent Luis A. Jimenez,
by his attorney James M. Knox, filed Respondent's Appearance and Motion to Dismiss herein,
with the Clerk's Office, State of Illinois, Pollution Control Board, copies of which are attached
hereto and herewith served upon you.
NAME:
James M. Knox, Attorney for Luis A. Jimenez
ADDRESS: 121
W. Chestnut, #3104, Chicago, IL 60610
TELEPHONE: 312/587-1356
CERTIFICATE OF SERVICE
Under penalties as provided by law pursuant to Sec. 1-109 of the Illinois Code of Civil Procedure, the
undersigned certifies that a copy of this Notice of Filing and Proof of Service, with attached Appearance and Motion
to Dismiss, was served on the Complainant, Kyle Nash, at the address shown above, by depositing true and correct
copies thereof in a sealed, properly addressed, postage pre-paid envelope, and depositing the same in the USPS drop
box located at 121 W. Chestnut Street, Chicago, IL 60610, before 4:30 p.m., on August 5, 2008.
Witnessed and certified to this 5th
day of August, 2008.
LAW OFFICES OF JAMES M. KNOX
ILLINOIS POLLUTION CONTROL BOARD
?
RECEIVED
CLERK'S
OFFICE
KYLE NASH,
Complainant,
v.
LOUIS JIMENEZ,
Respondent.
PCB 07-97
(Citizens Enforcement - Noise)
AUG 0
2
2CO3
STATE OF ILLINOIS
Pollution Control Board
APPEARANCE BY ATTORNEY
ATTORNEY APPEARANCE
I HEREBY FILE MY APPEARANCE AS ATTORNEY
FOR:
THE RESPONDENT
Luis A. Jimenez, (incorrectly named herein as "Louis Jimenez")
IN THE ABOVE ENTITLED CAUSE.
Name: James
M. Knox, Attorney at Law
Address: 121 W.
Chestnut St. #3104
Chicago, IL 60610
Telephone: 312-587-1356
Date: August 5, 2008
PROOF OF SERVICE
Under penalties as provided by law pursuant to Sec. 1-109 of the Illinois Code of Civil Procedure, the
undersigned certifies that a copy of this Notice of Filing with all attachments was mailed to Kyle Nash, 1630 W.
33' Place, Chicago, IL 60608, postage pre-paid, on August 5, 2008, before 4:30 p.m.
Witnessed and certified to this 5th
day of August, 2008.
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
RECEIVE
CLERK'S OFFICE
AUG 0 b 2008
\I
?
tion Control Board
gTE
OF ILLINOIS
PCB 07-97
(Citizens Enforcement - Noise)
KYLE NASH,
Complainant,
v.
LOUIS JIMENEZ,
Respondent.
NIG!
MOTION TO DISMISS
NOW COMES respondent LUIS A. JIMENEZ, incorrectly named in the Complaint filed
herein, by and through his attorney, JAMES M. KNOX, and moves the Board to dismiss the
Amended Complaint and Amended Motion for Summary Judgment (
hereinafter,
"amended
pleadings"), pursuant to Section 101.506 of the Pollution Control Board Procedural Rules; in
support thereof states:
1.
As noted in its Order of July 10, 2008, the Board takes into account that this matter
has a long history, leading to the current Amended Complaint filed on March 7, 2008, and
Amended Motion for Summary Judgment, filed herein on July 30, 2008 (the "amended
pleadings"), alleging violation of Title VI, Section 24, of the Environmental Protection Act,
viz
noise emitted beyond the boundaries of respondent's residence that unreasonably interferes with
complainant's enjoyment of her property, so as to violate any regulation or standard adopted by
the Board under this Act.
2.
As stated in the amended pleadings, the relief sought by complainant is that the
Board "order that the respondent stop polluting."
3.
By "polluting," the complainant refers to certain wind chimes allegedly located on
respondent's residential two-flat property, adjacent to complainant's residence, based on her
observations and recordings that she obtained in "the summer of 2007."
4.
In complainant's unnumbered paragraph of her Amended Motion for Summary
Judgment, styled "Statement of Facts Relevant to this Motion," complainant states unequivocally
that 1) "[t]he second (backyard) windchime was removed several weeks after the Respondent was
served..." and, 2) "[t]he Respondent removed the front porch chime after the initial status hearing
on August 9, 2007... "
5.
Nothing in complainant's amended pleadings, in either her amended Formal
Complaint, or in her amended Motion for Summary Judgment, suggests that the "polluting,"
viz
noise emitting wind chimes allegedly located on respondent's property, was continued, or is
continuing, or that there was at any time since the admitted voluntary removal of these devices
from respondent's property, a repetition of this noise emitting phenomena on respondent's
property, since August 9, 2007, in violation of 415 ILCS 5/24, 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, "
nor has complainant cited any regulation or
standard adopted by the Board under the act that was allegedly violated.
6.
Therefore, the only relief that complainant can be seeking in this proceeding is an
Order from this Board that the respondent cease and desist hanging, using, or in anyway allowing
the installation or use of wind chimes on his property in the future, since, by complainant's own
admission in her amended pleadings, these devices were voluntarily removed from respondent's
property on August 9, 2007, which was in direct response to complainant's proceedings before
this Board and they have never been reinstalled (see copies of photographs taken of the
respondent's property on August 3, 2008, attached hereto).
7.
There is thus no "case in controversy" before this Board regarding noise pollution
on respondent's property, and there is thus no relief that this Board can provide in the premises
in that the subject of complainant's complaint has by her own admission been removed one year
ago, as of August 9, 2008, thus her pleadings request relief for only a purely hypothetical
nuisance, which is speculative only, because the noise complained of was voluntarily abated by
respondent, based on complainant's own admission in her pleadings, and thus her continued
proceeding before this Board is without merit in that the issue raised is moot.
8.
Accordingly, respondent respectfully requests that the Board not accept the
amended pleadings for hearing, and that the Board find that the amended pleadings are frivolous
within the meaning of Section 31(d) of the Act (415 ILCS 5/31(d)) and Section 101.202 of the
Board's procedural rules (35 Ill. Adm. Code 101.202), because the amended pleadings fail to state
a cause of action upon which the Board can grant relief. While the Board unquestionably has the
authority to order a respondent to stop polluting, or to implement abatement measures, the
amended pleadings fail to make out a prima facie case for a continuing violation, where abatement
was voluntarily completed over one year ago by complainant's own admission, and there is no
polluting occurring for the Board to order to stop.
WHEREFORE, based on the foregoing, respondent respectfully requests that the Board
dismiss these proceedings, with prejudice.
Respectfully submitted,
ttorney for Respondent
James M. Knox
Attorney for Respondent
Chestnut Tower
121 W. Chestnut, #3104
Chicago, Illinois 60610
312/587-1356
ILLINOIS POLLUTION CONTROL BOARD
KYLE NASH,
Complainant,
v.
LOUIS JIMENEZ,
Respondent.
PCB 07-97
(Citizens Enforcement - Noise)
At r 'DAVIT
NOW comes James M. Knox, the affiant herein, and competently states from his personal
knowledge that the attached copies of photographs of respondent's property, located at 1628 W.
33rd
Place, Chicago, Illinois, were taken by your affiant personally on August 3
rd,
2008, in the
front and rear of respondent's home, and that no "wind chimes" were in evidence on said date.
Ailev-i141
Name:
?
James M. Knox
Address:
121 W. Chestnut St. #3104
Chicago, IL 60610
Telephone: 312-587-1356
Date: August
5, 2008
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