ILLINOIS POLLUTION CONTROL BOARD

May 16,

1996

MR.

& MRS.

DON WILLIAMS, MR. &

)

MRS.

THOMAS MORRIS & MR. & MRS.

)

PETER BIZIOS,

)

PCB 96-186

Complainants,

)

(Enforcement

Noise)

)

SCHAUMBURG PARK

DISTRICT,

)

Respondent.

)

CONCURRING

OPINION (by C.A.

Manning,

M. McFawn and J.Theodore Meyer):

This

matter is before the Board on a citizen noise complaint filed on March

1996

Mr.

& Mrs.

Don Williams,

Mr. & Mrs.

Thomas Morris and Mr.

& Mrs.

Peter Bizios against

the Schaumburg Park District.

Complainants state that noise

caused by

basketball playing

Odium Park in Schaumburg, Illinois

has resulted in

an unreasonable

interference with the use

and

enjoyment of complainants’ properties,

endangered the physical and emotional health and

well-being of complainants, and caused depreciation to the value of complainants’ properties.

Complainants additionally

allege that respondent has violated the Board’s numerical standards

set forth at

Iii.

Adm.

Code Part 900.102,

901.104,

and Sections 23

and 24

of the

Environmental Protection Act

(Act)

(415 ILCS

5/23,

5/24

(1994).)

Complainants allege that noise caused by

the dribbling of the basketball

and yelling of

the participants coupled with the close proximity of complainants’ property

instigated the

filing

of this

matter.

In the complaint,

complainants state that since June 1994,

“noise

is present

twelve months

out of the year

the noise

has occured (sic)

as early as

5:30

a.m. and as late

as 1:30 a.m.”

Though different for each complainant,

complainants generally state that the

basketball court ranges in varying proximity of approximately

feet to 50 feet from

complainants’ residences.

Section 31(b) of the Act

states that

“unless the Board determines that, such complaint

duplicitous or frivolous,

it shall schedule a hearing and serve written notice thereof upon the

person or persons named therein,

in accord with subsection (a) of this

Section.”

An action

before the Board is

frivolous if it fails to state a cause of action upon

which relief can be

granted.

(Citizens for a Better Environment v.

Reynolds Metals

Co.

(May 17,

1973), PCB

73-173,

PCB 46.)

In determining whether a case is

“frivolous” the Board

ascertains if the

relief requested may be granted.

Presently the Board utilizes the frivolous standard as one of

jurisdiction and nothing more.

We believe the legislature intended to

give the Board wide discretion in determining

whether a claim is

frivolous.

As stated in the dissenting opinion in Rodney B.

Nelson v.

Kane

County Forest Preserve et al (October 6,

1994), PCB 94-247 (by C.A. Manning

and

Theodore Meyer), the Board has the authority to determine whether a citizen enforcement

action is frivolous.

We believe that

the legislature intended that the Board monitor citizen

enforcement actions by dismissing those

actions which are frivolous in order

to prevent undue

harassment and expense on the part of the respondent and the

State.

We also believe the

legislature gave the Board such authority

in order to provide a mechanism for limiting the

number of “nuisance”

filings.

Comparatively,

in enforcement cases filed by the State,

the

Board has not been given such broad authority.

The Board may cause investigation of a

complaint as allowed by

Section 30 of the Act by requesting the Agency to investigate the

environmental harm in a specific case.

Overall, we believe that the discretion granted the

Board by

the legislature concerning

“frivolous”

actions allows

the Board to concentrate

matters where actual environmental harm is

present.

While we agree it is

appropriate that the complaint should be dismissed,

we find that

this matter should have been dismissed due to

the frivolous nature of the case.

In determining

the frivolous nature of a case and prior to proceeding with a case, the Board

should look to

determine if the complaint

factually or legally sufficient in stating a cause of action upon

which relief may be

granted.

In this

case, the complaint remains factually and legally

insufficient; therefore, we find the complaint without merit.

Complainants argue, among other things,

that the yelling and shouting from a

basketball court throughout the entire year causes excessive noise interfering with the quality

of the environment and the enjoyment of life.

Complainants also argue that basketball playing

occurs early in the morning

and late

at night without a park ranger to

enforce the park

district’s hours.

A park ranger need not be on duty to enforce the park district hours since the

City of Schaumburg may be

called upon to enforce park district

hours.

(See Respondent’s

Brief, Ex.

1A.)

Complainants also seek from the Board a cease and desist order which

permanently eliminates the noise produced at the basketball court.

If the Board begins

issuing

cease and desist

orders for noise emanating from daily

exercise activity occurring on park

district

grounds,

the Board would be significantly limiting

the benefits afforded by park

systems to

the enjoyment of life and the environment.

Overall, complainants’ allegations

remain too general

and lack specificity to

sustain the proper burden of proof necessary for a

nuisance case.

We find these allegations lack the appropriate sufficiency to prove

actual environmental

harm and, therefore,

nuisance violation under the Act.

The undersigned also believe that the

Board’s present standard of frivolous

too narrow and does not reflect the legislature’s intent

allow the Board

greater discretion in determining the frivolous

nature of a case.

result, we therefore would have dismissed

this complaint

as frivolous.

Because the Board

must first make a threshold determination of frivolous or duplicitous

in the filing of a citizen enforcement case and because we would have found this

matter

frivolous,

we need not

discuss whether the complained of activity

“organized amateur or

professional sporting activity”

as a restriction of the Board’s ability to hear noise

violations

according to Section

of the Act.

Therefore,

for the above-stated reasons, we concur.

____

Claire

A. Manning

Marili McFawn

J\*heodore Meyer

I, Dorothy M.

Guim, Clerk of the Illinois

Pollution Control Board,

hereby certify

that

the above concurrence was filed on the

//~-‘

day of

____________,

1996.

Dorothy M. G

,Clerk

Illinois Pollu

n Control Board