ILLINOIS POLLUTION CONTROL BOARD

November 19,

1992

YOLANDA PRICE,

Complainant,

)

v.

)

PCB 92—119

(Enforcement)

SOUTH SHORE VILLA

)

CONDOMINIUMS,

AND

QUALITY

)

MANAGEMENT SERVICE,

INC.,

)

Respondents.

ORDER OF THE BOARD

(by J.

C. Marlin):

On August 20,

1992,

Yolanda Price

(Ms. Price)

filed a

complaint alleging a noise nuisance in violation of Section 24 of

the Environmental Protection Act

(Act)

and 35

Ill.

Adin.

Code

900.102.

(Ill. Rev.

Stat.

1991,

ch.

111 1/2 par.

1024.)

On

October

3,

1992, the Board, on its own motion, ordered the

parties to brief the issue of whether or not this case is

properly before the Board in light of the Board’s holding in

Bruce Nesbitt v. The 100 Bellevue Place Condominium Association

(May 21,

1992)

PCB 92—48, appeal voluntarily dismissed,

No.

1—92—

2128,

(1st Dist., September 10,

1992).

On September 25,

1992,

Ms. Price filed her response (Resp.) to the Board’s order.

On

the same day, South Shore Villa Condominiums,

and Quality

Management Service,

Inc.

(collectively Respondents) filed a

motion for extension of time in which to respond.

The Board

granted their motion in an October

1,

1992,

order.

On October

14,

1992, Respondents filed their brief

(Brief) on the issue of

jurisdiction with the Board.

BACKGROUND

Ms.

Price owns a condominium in a building located at 6844

South Shore Drive, Chicago,

Illinois.

Ms.

Price has lived in the

building for almost four years.

Ms. Price’s condominium unit is

located on the first floor over the boiler room for the building.

The boiler was installed in 1988 or 1989 and runs from

approximately October through May of each year.

Ms.

Price has

complained to the Respondents about the noise generated by the

boiler and the fact that it causes her family to lose sleep and

interferes with hearing the radio or television.

Respondents

allegedly have not taken any action to reduce the noise emissions

from the boiler.

On August 20,

1992, Ms.

Price filed this

complaint with the Board.

0137-0

165

---

2

ISSUE

The issue before the Board

is whether or not Ms. Price’s

claim is duplicitous or frivolous in light of the Board’s

decision in Nesbitt.

In Nesbitt, the petitioner,

Bruce Nesbitt

brought a complaint against the Bellevue Place Condominium

Association (Bellevue)

alleging noise pollution.

(Nesbitt, at

1.)

Mr. Nesbitt alleged that the noise pollution was emanating

from the common elements of the condominium.

(u.)

Section 24

of the Act prohibits any person from emitting noise beyond his

property which interferes with the enjoyment of life or lawful

business activity.

The Board in Nesbitt held that noise

emanating from the common areas of a condominium complex to an

individual unit does not “emit beyond the boundaries” of one

property to another.

(~.,

at 4.)

In her response, Ms. Price asks the Board to reconsider

Nesbitt.

Ms.

Price argues that interpreting the Act to prevent

condominium owners from seeking relief from excessive noise

emitted from the common areas would be contrary to the General

Assembly’s determination in Section 23 of the Act that excessive

noise endangers health and reduces the quality of the

environment.

(Resp.

at 2.)

In addition, Ms. Price argues that

it is inconsistent with the Condominium Property Act,

Ill.

Rev.

Stat.

1991,

ch.

30 par. 301 et.

seq.,

to prevent Ms. Price from

seeking relief from noise being emitted in the common area of her

condominium building.

(Resp. at 2.)

Ms.

Price argues that Nesbitt turned on the idea that the

individual owners owned the common elements and areas of the

condominium in fee simple, rather than as tenants in common.

Ms.

Price states that if this were true,

she would have the right to

correct or abate the noise herself.

(Resp.

at 5.)

Ms. Price

argues that instead of owning the common areas in fee simple,

individual owners are

in fact tenants

in common.

(Resp.

at 5.)

Ms. Price argues that,

as

a tenant in common, she cannot exercise

exclusive ownership/control over the boiler or abate the noise

herself without being held responsible for any diminution in

value of the common element.

(Resp. at 5 quoting Ill.

Rev. Stat.

1991,

ch.

76 par.

4.)

The Respondents,

in their brief, argue that Ms. Price owns

not only her unit in fee simple absolute but also, the common

areas and elements of the building.

The Respondents go on to

argue that because Ms.

Price owns the property from which the

noise she is complaining of emanates, she is not entitled to

relief.

(Brief at 4.)

In support of their argument, Respondents

point to Section 24 of the Act which prohibits the emission of

noise by a person “beyond the boundaries of his property.”

(Brief at 4.)

In addition, the Respondents point out that in

Nesbitt the Board held that it did not have jurisdiction over a

r

t’~-~

U

t

Li

/

-

---

3

condominium association when a unit owner complained of noise

coming from the common areas of the building.

(Brief at 4-5.)

DISCUSSION

Title VI of the Act contains the standards and procedures

for noise control.

Section 23 of Title VI sets forth the

legislature’s purpose for preventing noise and Section 24

prohibits any person from emitting noise beyond his property

which interferes with the enjoyment of life or lawful business

activity.

The Board holds that its decision in Nesbitt is

controlling in deciding whether or not an individual unit owner

may take action against noise emanating from the common area of a

condominium complex.

In Nesbitt, the Board found that individual

unit owners owned not only their unit but also the common areas

of the complex.

(~.

at 4.)

Thus, the Board held,

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.

(u.)

Section 31(b) of the Act and 35 Ill. Adm. Code 103.240 allow

the Board to dismiss a complaint if the Board determines that it

is duplicitous or frivolous.

In a resolution on June 9,

1989,

the Board determined that an action is duplicitous if it is

substantially similar to one brought in another forum.

(In re

Duplicitous or Frivolous Determination (June

9,

1989), RES 89-

21.)

In the same resolution, the Board determined that a

complaint is frivolous if

it fails to state a cause of action

upon which relief can be granted.

(u.)

In the instant case, the Board finds that Ms. Price’s claim

is frivolous because it does not state a claim upon which relief

can be granted.

Therefore, the Board does not have jurisdiction

over the matter at hand and will not accept the matter for

hearing.

Accordingly, the Board dismisses this case.

The

result of this ruling

is that this docket is closed.

IT IS SO ORDERED.

Section 41 of the Environmental Protection Act

(Ill.Rev.Stat.

1991,

Ch 111 1/2, par.

1041)

provides for appeal

of final orders of the Board within 35 days.

The rules of the

Supreme Court of Illinois establish filing requirements.

(But

see also 35

Ill.

Adin.

Code 101.246, Motions for Reconsideration,

and Castenada v.

Illinois Human Rights Commission

(1989),

132

Ill.

2d 304,

547 N.E.2d 437.)

0t37-O

187

---

4

I, Dorothy M. Gunn,

Clerk of the Il1inoi~zPollution Control

Board1

hereby certify

that

the above order wa3 adopted on the

/~

day of ______________________,

1992, by a vote of

________________•

~

Dorothy M.,~$unn, Clerk

Illinois P~llutionControl Board

I