ILLINOIS POLLUTION CONTROL BOARD
December 20, 1989
DANIEL LORDEN AND HELEN LORDEN,
Complainants,
v.
)
PCB 89—19
(Enforcement)
SHERIDAN SOUTH CONDOMINIUM
ASSOCIATION,
Respondent.
ORDER OF THE BOARD (by J. Anderson):
This matter comes before the Board upon Complainants’ motion
to compel respondent to turn on the five air conditioning units
which are the subject of the noise enforcement complaint in this
matter. Complainants, Daniel Lorden and Helen Lorden
(“Lordens”), moved the hearing officer to compel the respondent,
Sheridan South Condominium Association (Sheridan South), to turn
on the five air conditioners on June 30, 1989.
In response to the Complainants’ motion to compel, the
respondent filed a motion for continuance on July 14, 1989. The
respondent’s motion for continuance requested until August 14,
1989 to obtain an attorney and respond to the Complainants’
motion to compel. The hearing officer granted respondent’s
motion for continuance and directed that respondent’s attorney
file an appearance with the Board by August 14, 1989. The
hearing officer also allowed the respondent until September 8,
1989 to respond to the Complainants’ motion to compel. On
September 5, 1989, the hearing officer referred this matter to
the Board since the respondent’s attorney had not yet filed an
appearance nor had the respondent responded to the motion to
compel. On September 13, 1989 the Board allowed the respondent
10 days to file an appearance and respond to the motion to
compel. The respondent did not respond to the Board’s September
13 Order and the Board subsequently ruled on the motion to compel
on September 28, 1989.
On October 2, 1989, the respondent filed a motion to vacate
the Board’s Order of September 28, 1989 stating that it had not
received the Board’s September 13 Order until after September
28. The respondent also filed a motion to dismiss the
complaint. Upon adequate proof, on November 2, 1989, the Board
granted the respondent’s motion to vacate the Board’s September
28, 1989 Order. The Board denied respondent’s motion to
106—405
—2—
dismiss. On November
13,
1989, the respondent filed an answer to
Complainants’ motion to compel. On December 4, 1989, the
Complainants filed a reply to the respondent’s answer.
The Board will now address the motion to compe~. In support
of their motion to compel the Complainants state that:
All the air conditioning units in question
have not been in operation long enough during
the day to allow for a correct decibel reading
of the noise level which is the subject of the
complaint.
The noise expert retained by Petitioners has
stated that in order to take or compute a
correct noise reading the units must be in
operation for at least one hour. The units in
question have not been in use, even
in
warm
weather, to satisfy the above stated
recuirements of the noise expert. And the
level of nc.ise generated by these units is the
subject of the matter in this case.
In response to the Complainants’ motion to compel, the
respondent states that Sheridan South is not the proper party
before the Board. Respondent further states that “the individual
unit owners have stated that Sheridan South cannot order them
to turn their respective air conditioners on since they are the
property of the individual unit owners.” Thus, if ordered to
turn on the air conditioners, the respondent states that “the
Board will place Sheridan South in a position of being forced
to enter the five subject units without the unit owners’
permission.” Additionally, respondent states that if ordered to
turn on the air conditioners for the requested period of time at
the present time of year, damage may result to the subject unit.
The Complainants’ reply to the respondent’s response in
essence denies that Sheridan South is not the proper party. The
Complainants also point out that respondent’s evidence in regard
to damage to the units stated that damage ~i result and that any
damage may or may not be permanent.
The Board hereby denies Complainants’ motion to compel.
This Board notes that this is a rather unique situation
presented. Among our concerns are the following: The Board is
apparently being asked to require the respondent to perform an
act which is alleged to be a violation of the Act so that
evidence can be obtained to prove that alleged violation. The
Board is not persuaded that even if the air conditioners were
turned on and a violation is demonstrated at that particular
point in time that such information would prove that a violation
occurred in the past. In other words, noise readings are time
106—406
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specific; they can be used to demonstrate a violation at the time
taken, but not at other times, especially times long past. The
Board notes that the motion requests that all air conditioning
units be turned on at the same time. The Board is not persuaded
that a reading taken at such a time would reflect~normal
circumstances. Also, the Board notes that it is now December 20,
the beginning of winter. It would seem somewhat absurd to
require the Respondents to turn their air conditioners on for at
least one hour at this time. Further, the Board notes that
because it is winter not only may damage result to the air
conditioners but also the noise readings may be different because
the sound is travelling through cold temperatures.
The Board notes that, on December 13, 1989, the Complainants
have filed a motion to join the individual air conditioner owners
as parties. The Board will rule on this motion following an
opportunity for timely response.
The Complainants’ motion to compel is hereby denied.
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 1Q~~L~~—i
,
1989, by a vote of 7—o
‘~DorothyM.~unn, Clerk
Illinois ~llution Control Board
106~407