ILLINOIS POLLUTION CONTROL BOARD
    August 5, 1999
    LUCILLE WATHEN,
    Complainant,
    v.
    ROBERT and WENDY STRYKER,
    Respondents.
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    PCB 99-30
    (Enforcement - Citizens, Noise)
    CONCURRING OPINION (by K.M. Hennessey):
    I respectfully concur with the Board’s August 5, 1999 order that denies respondents’ motion to dismiss. I
    write separately, however, to note two points. First, respondents’ motion relies upon their claim that they have
    eliminated the nuisance noise. While the Board may consider new factual allegations on a motion to dismiss
    (assuming the Board treats the motion as a Section 2-619 motion under the Illinois Code of Civil Procedure), the
    new factual matter must be verified by a sworn affidavit. See 735 ILCS 5/2-619(a) (1998). Respondents did not
    verify their claim with an affidavit.
    Second, and more importantly, dismissal would not be warranted even if respondents had supplied an
    affidavit. In Shelton v. Crown (May 2, 1996), PCB 96-52, for example, the Board denied a motion to dismiss a
    nuisance noise complaint arising out of noise from an air conditioner. Respondents moved to dismiss on the
    grounds that complainants had moved away. The Board stated, “[a]lthough the complainants no longer reside next
    to the air conditioner, complainants may still be able to prove that an unreasonable interference occurred.”
    Shelton, PCB 96-52, slip op. at 2. Here too, respondents are potentially liable for past unreasonable interference,
    even if they have in fact eliminated the nuisance noise.
    K.M. Hennessey
    Board Member
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    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that the above
    concurring opinion was submitted on the 23rd day of August 1999.
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board

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