ILLINOIS POLLUTION CONTROL BOARD

May 21, 1992

BRUCE NESBITT,        

)

Complainant,

PCB 92—48

v.

)

(Enforcement)

)

THE 100 BELLEVUE PLACE    

)

CONDOMINIUM ASSOCIATION, AN 

)

ILLINOIS NOT-FOR-PROFIT   

)

CORPORATION,

)

Respondent.

ORDER OF THE BOARD (by J. Theodore Meyer):

On March 26, 1992, complainant Bruce Nesbitt filed his

complaint against The Bellevue Place Condominium Association

(Bellevue) alleging noise pollution emanating from the common

elements of 100 E. Bellevue. Thereafter, on April 9, 1992,

Bellevue filed its motion to dismiss on the grounds that the

complaint fails to state a cause of action and is frivolous. On

April 22, 1992, complainant filed with the Board a memorandum in

opposition to the motion to dismiss. On May 6, 1992, Bellevue

filed with the Board a reply to complainant’s response to

Bèllevue’s motion to dismiss. For the reasons given below,

Bellevue’s motion is granted and this matter is dismissed.

The motion to strike or dismiss asserts several bases for

striking or dismissing the complaint:

1.  The complaint fails to allege a cause of

action because the Act does not prohibit

or seek to regulate noise pollution within

one’s property.

2.  The Act does not allow an individual to file

a complaint before the Board alleging noise

pollution from common areas in a condominium

association where the complainant himself has

an ownership interest.

3.  The Act does not provide for private nuisance

actions.

The complaint specifically alleges that Bellevue violated

Section 24 of the Environmental Protection Act (Act) (Ill. Rev.

Stat. 1989, ch. 111 1/2, par. 1024) and the Board regulation

prohibiting noise pollution (35 I1l.Adiu.Code 900.102). (Compi.

par. 16.) The complaint factually alleges the following: that the

rumbling noise and vibration caused by the air handling equipment

133—533

2

occurs 24 hour a.day; that the pumping and whining noises caused by

the air conditioning equipment occurs from May through October and;

that the thumping noises caused by the elevator operation disturb

and interfere with complainant’s sleep. (Compl. par. 5.) The

complaint alleges that Bellevue is culpable because it was

organized to maintain, operate and manage the condominium

residential building and improvements situated at 100 E. Bellevue.

(Compl. par. 4.)

Title VI of the Act contains the standards and procedures for

noise control. Section 23 of Title VI sets forth the legislature’s

purpose of preventing noise that creates a public nuisance.

Section 24 of Title VI prohibits any person from emitting beyond

his property noise that interferes with the enjoyment of life or

with any lawful business or activity. Section 25 of Title VI sets

forth the Board’s authority to adopt noise regulations.

Sections 23 and 24 of Title VI provide as follows:

Section 23

The General Assembly finds that excessive noise

endangers physical and emotional health and well-

being, interferes with legitimate business and

recreational activities, increases construction

costs, depresses property values, offends the

senses, creates public nuisance, and in other

respects reduces the quality of our environment.

It is the purpose of this Title to prevent noise

which creates a public nuisance.

Section 24

No person shall emit beyond the boundaries of his

property any noise 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.

In determining whether noises that emanate within the confines

of a condominium complex constitute a public nuisance, the

definition of a public nuisance set forth in Shell Oil Company v.

Illinois Pollution Control Board (1976), 37 Ill.App.3d 264, 346

N.E.2d 212, must be considered. “The term ‘public nuisance’ is

said to comprehend ‘a miscellaneous and diversified group of minor

criminal offenses, based on some interference with the interests of

the community, or the comfort and convenience of the general

public.’” Id. at 268, 346 NE.2d at 216. Shell Oil also explains

that the Board is not limited to “one set. of criteria” in its

regulatory scheme. 

The Board has used its discretion to

implement Sections 23 and 24 of the Act in two ways. First, the

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3

Board has adopted specific numerical limitations on the

characteristics of sound that may be transmitted from source to

receiver. The second method by which the Board has implemented the

noise provisions is found at 35 Ill. Adm. Code 900.101 and 900.102

which provide as follows:

Section 900.101 Definitions

Noise pollution: the emission of sound that unreasonably

interferes with the enjoyment of life or with any lawful

business or activity.

Section 900.102 Prohibition of Noise Pollution

No person shall cause or allow the emission of sound beyond

the boundaries of his property, as property is defined in

Section 25 of the Illinois Environmental Protection Act, so

as to cause noise pollution in Illinois, or so as to violate

any provision of this Chapter.

The Board, in applying its noise regulations, has emphasized

that there is no need for a public versus private common law

analysis when a specific violation of the Act allowing for citizen

enforcement and granting the Board jurisdiction is alleged. Ronald

E. Tex v. S. Scott Cocicieshall (December 20, 1990), PCB 90—182, 117

PCB 149.

In determining whether noise emanating from the common

elements of a condominium complex to an individual unit of the

condominium complex satisfies the “beyond the boundaries” statutory

requirement, the definition of a condominium must be considered.

The Board notes that the Act does not grant the Board authority to

regulate noises that emanate solely within the confines of a

person’s property. A condominium is defined in Black’s Law

Dictionary (Blacks), Fifth Edition, as follows:

“System of separate ownership of individual units

in a multiple-unit building. A single real property

parcel with all the unit owners having a right in

common to use the common elements with separate

ownership confined to the individual units which are

serially designated.

In an effort to establish a property line separating

complainant’s condominium unit and the common elements of the

building as two distinct propertids, complainant characterized the

condominium as personal property. (Compi. Exhibit A, pg. 2, par.

3.) The Board notes that a condominium must be characterized as

real property. The Black’s definition of personal property makes

it clear that a condominium can not be classified as such: “In a

33—535

Condominiums are regulated pursuant to the Illinois

Condominium Property Act. (Ill. Rev. Stat. 1989, ch. 30, pars. 301

et seq.)  When property falls within the provisions of the

Condominium Property Act, a declaration is executed by the owner of

the parcel and is recorded in the office of the recorder. A parcel

for purposes of this declaration is defined in par. 302 § 2(b) of

the Condominium Act as the “lot or lots, tract or tracts of land”.

Additionally, the Condominium Property Act makes it clear in

its definitions that a parcel is regarded and recorded as a single

unit of property, and that the single property unit includes the

individually owned units as well as the common elements of the

building. Property and common elements are defined in par. 302 §S

2 (c), (e) of the Condominium Property Act in the following manner:

“Property” means all the land, property and space

comprising the parcel, all improvements and

structures erected, constructed or contained

therein or thereon, including the building and all

easements, rights and appurtenances belonging

thereto, and all fixtures and equipment intended

for the mutual use, benefit or enjoyment of the

unit owners, submitted to the provisions of this Act.

“Common Elements” means all portions of the property

except the units, including limited common elements

unless otherwise specified.

Therefore, a parcel is composed of the entire condominium

complex, and a condominium complex is regarded as a single unit of

real property. For this reason, the Board finds that noise that

emanates from one unit to another or from a common element to a

unit remains within the confines of a single property unit, and

does not “emit beyond the boundaries” of one property to another.

After consideration of the presented information, the Board

finds that it does not have jurisdiction over the matter at hand

and will not accept the matter for hearing. The Board accordingly

grants Bellevue’s motion to dismiss.

IT IS SO ORDERED.

Section 41 of the Environmental Protection Act (Ill. Rev.

Stat. 1989, ch. 111 1/2, par. 1041) provides for the appeal of

broad and general sense, everything that is the subject of

ownership, not coming under denon~inationof real estate. A right

or interest in things personal, or right or interest less than a

freehold in realty, or any right or interest which one has in

things movable.  Generally, all property other than real

estate.. 

.“.

133—5

5

establish filing requirements.

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control

Board, hereby certify that the above order was adopted on the

day of  

1992, by a vote of 

7_()

7/7

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~-~/ 

‘~~~-i ~ 4. ~

Dorothy N. ,4Inn, Clerk

Illinois P~.lutionControl Board

133—537