ILLINOIS POLLUTION CONTROL BOARD

May

24,

1990

DANIEL LORDEN AND HELEN LORDEN

Complainants,

v.

)

PCB 89—19

(Enforcement)

SHERIDAN SOUTH CONDOMINIUM

ASSOCIATION,

Respondent.

ORDER OF THE BOARD

(by J. Marlin):

This matter comes before

the Board on Sheridan South

Condominium Association’s

(“Association’s”)

Motion

to Dismiss

Petitioner’s

First Amended Complaint filed April

20,

1990.

The

motion seeks to dismiss

the Lorden’s First Amended

Corftplaint for

reason that

the Association

is not a proper party defendant.

The

motion incorporates by reference the Association’s Answer

to

Petitioner’s Motion

to Compel as

its supporting evidence and

argument concerning

its motion to dismiss.

On May

9,

1990,

the

Lordens

filed their Answer

to Respondent’s Motion

to Dismiss

Complainants’

Amended Complaint.

For reasons given below,

the

Association’s motion

is denied.

The Association asserts

that

it

is not

a proper party

defendant

to this citizen noise pollution enforcement case

because

it

is not

in control

of the subject air conditioning

units.

In suDport of

its claim that

it has

no control over

the

air conditioners complained of,

the Association attaches the

affidavit of Linn Joanis,

President

of the Association.

That

affidavit states

in pertinent part:

3.

That

when

the

Association

informed

the

individual

unit

owners

of

the

same,

the

individual

unit

owners stated

that

“The

Association

does

not have

the authority

to

order

the

individual

unit

owners

to

turn

on

their

air

conditioning

units,

or,

in this aternative,

come

into their

individual

units

and

turn

on

paid

air

conditioning

units,

since

they

are

the

property

of

the

individual

unit

owners

and

not

the

property

of

the

Association.”

111—335

---

2

4.

That

the Association

is not

responsible

for

the

repair,

maintenance

or

replacement

of

any

of

the

air

conditioning

units

that are

the subject

of Petitioner’s complaint.

Affidavit of Linn Joanis,p.2.

The Board notes

that

this

is not the first attempt

by the

Association to be dismissed from

this case.

In each,

the

Association’s argument has been that

it

lacks ownership and

control over the air conditioning units

in the individual

members’ properties.

As such,

the Association’s motion

to

dismiss the First Amended Complaint

is premised upon matters not

apparent on the face of

the pleadings.

In order

to prevail upon

its motion

to dismiss

then,

the Association’s pleading must

he

supported by competent evidence

in the form of an affidavit.

35

Ill.

Adm.

Code 101.242

(a).

Here, however,

the Association’s

affidavit

is deficient

in several respects, paragraph

3 contains

the unsworn opinions of

the individual unit owners that

the

Association nay not compel them

to turn on

their

air conditioning

units

or

to enter

their properties

to turn on their units.

These

unsworn opinions do not

rise to the level

of

“fact”

for cur

purposes here,

nor do the sworn statements contained

in paragraph

4 curb these deficiencies.

The substance of paragraph

4 does not

conclusively determine

that the Association lacks any measure of

control over the air conditioning units

in question.

Certain

responsibilities regarding the air conditioners assertedly

fall

to the unit owners, but not all.

Given the status

of the record

before the Board

at this

time,

we cannot say that

the Association

is not a proper party defendant.

Therefore,

the Association’s

Motion

to Dismiss Petitioner’s First Amended Complaint

is den~ed.

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

~

day of

_______________

,

1990,

by

a vote

of

_/

~

/

-x

Dorothy

M. Munn,

Clerk

Illinois ?bllution Control Board

111—3S6