ILLINOIS POLLUTION CONTROL BOARD
    August 10, 2000
    SILVER GLEN HOMEOWNERS’ ASSOCIATION, INC.,
    an Illinois not-for-profit corporation,
    Petitioner,
    v.
    ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
    MARK KAPLAN, and B. DAVIDSON CUSTOM
    HOMES, INC.,
    Respondents.
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    PCB 00-223
    (Permit Appeal – Water)
    ORDER OF THE BOARD (by E.Z. Kezelis):
    A permit appeal in the above-captioned matter was filed on June 23, 2000. On July 17, 2000, the Illinois
    Environmental Protection Agency (Agency) filed a special appearance and motion to dismiss on the grounds that the
    Board lacks jurisdiction. Silver Glen Homeowners’ Association, Inc. (Silver Glen) filed its reply to the motion to
    dismiss on July 24, 2000.
    BACKGROUND
    Silver Glen is the responsible party in charge of maintaining Silver Glen Estates, a subdivision of
    unincorporated Kane County, Illinois. App. at 1. Silver Glen Estates is served by its own community water supply
    and sanitary sewer system. App. at 2. Mark Kaplan (Kaplan) is the original developer of Silver Glen Estates. App.
    at 1. B. Davidson Custom Homes, Inc. (B. Davidson), is a co-developer of the remaining undeveloped lots in Silver
    Glen Estates. App. at 3.
    Since 1997, Silver Glen has been involved in a circuit court action with Kaplan, concerning the development
    and operation of Silver Glen Estates. App. at 2. At some point during the course of that litigation, Kaplan
    apparently sold the remaining undeveloped lots in Silver Glen Estates to United Lands, Inc. App. at 3. United
    Lands, Inc., then entered into an agreement to develop the lots with B. Davidson. App. at 3. United Lands, Inc., is
    not named as a party in this matter.
    PRELIMINARY MATTERS
    No responsive pleadings have been filed by either Kaplan or B. Davidson. Neither Kaplan nor B. Davidson
    are identified in the permit, which was issued only to Silver Glen; for the purposes of a permit appeal, they can be
    neither party petitioner nor party respondents. The Board’s procedural rules provide that the permit applicant may
    be a petitioner, and that the Agency shall be a respondent in all permit appeals. See 35 Ill. Adm. Code 105.102(a)(4).
    Neither Kaplan nor B. Davidson are proper respondents in this type of permit appeal. Accordingly, the Board, on its
    own motion, hereby dismisses these respondents from this permit appeal.
    MOTION TO DISMISS
    In its permit appeal, Silver Glen purportedly objects to the Water Pollution Control Permit No. 2000-GC-
    0879, issued by the Agency to it on May 19, 2000. The basis for the objection however, is not readily apparent from
    the permit language itself.
    2
    Permit No. 2000-GC-0879 allows for the construction of improvements to the existing sewage treatment
    facility. Permit Application (App.) at Exh. F. The improvements include, among other things, increasing the
    irrigation system and irrigation acreage.
    Id
    . Silver Glen maintains that in order to approve the proposed
    improvements to the spray irrigation system, the Agency approved a plan to create easements on the majority of
    existing lots in the subdivision.
    Id
    . In apparent support of this position, Silver Glen attached an Exhibit H to its
    permit appeal, which is a map identified as portraying the “irrigation system area.” App. at Exh. H. Because the
    Agency record has not yet been filed, it is not clear whether this map was part of the permit application submitted to
    the Agency, nor whether it was relied upon by the Agency in the process of making its decision to grant construction
    Permit No. 2000-GC-0879 to Silver Glen.
    Silver Glen seeks to have the Board enter an order granting the following relief: (1) order the Agency to
    terminate the construction permit; and (2) order the Agency to direct “the Respondents” to provide the necessary
    spray irrigation area without interfering with the property rights of the lot owners. App. at 5-6.
    In its motion to dismiss, the Agency argues that the Board lacks jurisdiction to grant the relief requested by
    Silver Glen. The Board agrees that the second prayer for relief may be beyond the Board’s authority. Because the
    Board dismisses the non-Agency respondents, however, the Board does not reach the issue. With regard to the first
    prayer for relief, without the Agency’s administrative record, the Board lacks sufficient information to determine
    whether a cause of action has been stated that would entitle Silver Glen to the relief requested.
    Accordingly, the Board will defer ruling on the Agency’s motion to dismiss until such time as the Agency’s
    administrative record has been filed. The Agency is hereby ordered to file its administrative record within fourteen
    days of the date of this order.
    3
    SPECIAL APPEARANCE
    The second matter before the Board concerns the fact that the Agency filed a “Special
    Appearance” together with its motion to dismiss. The requirements of Section 101.243 of the
    Board’s procedural rules provide that a timely filed special appearance preserves jurisdictional
    objections. 35 Ill. Adm. Code 101.243. The Agency has preserved its objection to the Board’s
    jurisdiction. Accordingly, the Agency may participate in these proceedings,
    i.e.
    , file its
    administrative record, without waiving its objection to the Board’s jurisdiction in this matter.
    CONCLUSION
    In conclusion, the Board, on its own motion, dismisses respondents Kaplan and B. Davidson from this
    permit appeal. Additionally, the Board defers judgment on the Agency’s motion to dismiss and orders the Agency to
    file its administrative record within 14 days of the date of this order.
    IT IS SO ORDERED.
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that the above order was
    adopted on the 10th day of August 2000 by a vote of 5-0.
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board

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