ILLINOIS POLLUTION CONTROL BOARD
December 6, 1989
JOHN ZARLENGA AND
JEAN ZARLENGA,
)
Complainants,
v.
)
PCB 89—169
(Enforcement)
PARTN:RsH:P CONCEPTS,
HOWARD EDISON, BRUCE MCCLARIEN,
COVE DEVELOPMENT COMPANY, AND
THOMAS O’BRIEN,
Respondents.
ORDER OF THE BOARD (by J. Marlin):
This matter is before the Board on an October 26, 1989
motion to strike or dismiss and the November 13, 1989 motion for
extension of time to file an answer filed on behalf of
Partnership Concepts, Howard Edison, Bruce McClarien, Cove
Development Company, and Thomas O’Brien. John Zarlenga and Jean
Zarlenga (“Complainants”) filed a response to the motion to
strike or dismiss on November 13, 1989. The Respondents filed a
supporting affadavit of Thomas B. O’Brien, Jr. on November 29,
1989.
The motion to strike or dismiss asserts multiple bases for
strikinq or dismissing the complaint:
1. The complaint fails to allege facts in
support of the contention that Respondents
are in possession of the subject property,
and hence subject to the Board’s
jurisdiction;
2. •The complaint fails to cite with
specificity the regulations and standards
that it alleges the Respondents to have
violated; and
3. The complaint alleges “noise pollution”
without setting forth specific facts about
the emissions it alleges as violations of
the Act or regulations.
Further, the motion and the November 29, 1989 affidavit aver
that neither Thomas O’Brien nor Cove Development Company “own,
operate, or otherwise occupy the property,” and seek dismissal as
1~)(~51
—2—
to or striking these two individual respondents. The motion
would convince the Board that the Complainants must quantify the
alleged noise in the complaint in order for
this
matter to
proceed. The Respondents conclude, “The complaint is required to
provide sufficient facts to reasonably allow preparation of a
defense. The complaint states no facts, only conclusions and
should therefore be dismissed or stricken.”
As to the sufficiency of the complaint, the Board looks to
its allegations. The complaint must “fairly and unambiguously
inform a defendant as to the nature of an action.” Draper
&•
Kramer Inc. v. PCB, 40 Ill. App. 3d 918, 922, 353 N.E.2d 106, 110
(1st Dist. 1976). The complaint “states the issues and assists
the defendant in the formulation of his defenses.” Ic. The
complaint must be “sufficiently clear and specific” to allow such
defense. Lloyd A. Fry Roofing Co. v. PCB, 20 Ill. App. 3d 291,
305, 314 N.E.2d 350, 354 (1st Dist. 1974). The complainants
specifically allege that responients violated Section 24 of the
Environmental Protection Act, Ill. Rev. Stat. 1987, ch. lll~,
par. 1024. This provision prohibits emission of “noise that
unreasonably interferes with the enjoymcnt of life or with any
lawful business or activity, so as to violate any regulation or
standard adopted by the Board under this Act.” Ill. Rev. Stat.
1987, ch. lll~,par. 1024. The complaint factually alleges that
the noise occurs “at all hours of the day, but it is most severe
at nights and on weekends,” that it emanates from “air
conditioning units, generators, fans and a swimming pool
dehumidifier, and that it renders the ~omplainants “unable to
sleep ar night or spend time in their yard.” Complaint, par.
6—8. The complaint alleges that the respondents are culpable as
having “ownedj, designed, constructed and maintained a
condominium complex” that is the source of these emissions.
Complaint, par.4
The Board finds that the complaint sets forth sufficient
facts to place the respondents on notice of the violation
charged, their activities that result in that alleged violation,
the scirces of that alleged violation, and the alleged
interference that could result in a finding of violation. This
complaint fairly and clearly informs the respondents sufficiently
that they can formulate a defense.
Further, respondents somehow appear to maintain that
quantification of the noise is necessary for an adequate
complaint. Even if the complainants never present such expert
testimony, such is not necessary to result in a finding of
violation. The testimony of lay citizens is sufficient.
Marblehead Lime Co. v. PCB, 42 Ill. App. 3d 116, 122, 355 N.E.2d
607, 611—12 (1st Dist. 1976). Proof that the noise emissions
cause an unreasonable interference with the enjoyment of life or
property is alone sufficient. See Ferndale Heights Utilities Co.
v. PCB, 44 Ill. App. 3d 962, 968, 358 N.E.2d 1224, 1229 (1st
Dist. 1976). The Board will not strike or dismiss the complaint.
1r~6~52
—3—
As to the individual respondent, Thomas O’Brien, and Cove
Development Co., the Board looks to the affidavit of Thomas
D’Brien. That affidavit asserts that neither respondent owns,
Dperates, or otherwise occupies the property. This falls far
short of affirmatively stating that either individual respondent
has absolutely no interest in the property and has engaged in no
activity with respect to the property which would have resulted
in offending noise emissions. The Board will not dismiss Thomas
O’Brien or Cove Development Company. The conflicting assertions
of the complaint and the O’Brien affidavit involve factual
questions, and potential questions of application of law to
facts, which cannot be appropriately resolved by the Board in the
context of a motion to dismiss. The Board will not address the
issue of whether Thomas O’Brien or Cove Development Company
violated Section 24 of the Act until after full development of a
factual record at hearing and the submission of post—hearing
arguments.
Finally, the Board hereby grants respondents 30 days from
the date of this Order, until January 5, 1990, to formulate and
file their answer.
IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board,1 hereby certify tha,t. the above Order was adopted on
the ~L- day of ___________________________
,
1989, by a
vote of
~‘
.
/(~
-I
7)
/
Dorothy M.7Gunn, Clerk
Illinois Pollution Control Board
11)6-53