ILLINOIS POLLUTION CONTROL BOARD
November 7, 2002
DAVID L. WEBER and RACHEL B. )
WEBER,
)
)
Complainants, )
)
v. ) PCB 02-157
) (Citizens Enforcement – Noise)
CISCO UNITED METHODIST CHURCH, )
)
Respondent. )
ORDER OF THE BOARD (by M.E. Tristano):
This order denies respondent’s motion for summary judgment, and orders this citizens’
noise complaint to proceed to hearing as previously ordered, for the reasons discussed below.
On March 18, 2002, David L. Weber and Rachel B. Weber (complainants) filed a noise
pollution complaint against Cisco United Methodist Church (respondent).
See
415 ILCS 5/31(d)
(2000); 35 Ill. Adm. Code 103.204. Complainants alleged that respondent violated sections
900.102 and 901.104 of the Board’s noise regulations. 35 Ill. Adm. Code 900.102 and 901.104.
Complainants allege that respondent violated these provisions by 1) broadcasting recorded
church bells or chimes through loudspeakers located on the top of the Church bell tower and 2)
ringing actual bells at various times and days of the week. On May 2, 2002, the Board found
that, pursuant to Section 901.107 of the Board’s regulations, the alleged violation of Section
901.104 of the Board’s regulations was frivolous, and struck it from the complaint. The Board
found that the remaining alleged violation of the Board’s regulations was neither duplicitous nor
frivolous.
On September 17, 2002, the respondent filed a motion for summary judgment,
accompanied by a cover sheet entitled “motion for leave to file late answer.” On September 19,
2002, the complainants filed a response to motion for summary judgment.
STANDARD OF DECISION
Summary judgment is appropriate when the pleadings, depositions, admissions on file,
and affidavits disclose that there is no genuine issue as to any material fact and the moving party
is entitled to judgment as a matter of law. Dowd & Dowd, Ltd. v. Gleason, 181 Ill. 2d 460, 483,
693 N.E. 2d 358, 370 (1998). In ruling on a motion for summary judgment, the Board “must
consider the pleadings, depositions, and affidavits strictly against the movant and in favor of the
opposing part”.
Id
. Summary judgment “is a drastic means of disposing of litigation,” and
therefore it should be granted only when the movant’s right to the relief is clear and free from
doubt.”
Id
. citing Purtill v. Hess, 111 Ill. 2d 199, 240, 489 N.E.2d 867, 871 (1986). However, a
party opposing a motion for summary judgment may not rest on its pleadings, but must “present
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a factual basis which would arguably entitle [it] to a judgment.” Gauthier v. Westfall, 266 Ill.
App. 3d 213, 219, 639 N.E.2d 994, 999 (2d
Dist. 1994).
THE PARTIES’ ARGUMENTS
Respondent’s motion, which is supported by affidavit, asserts several facts which it
believes justify grant of summary judgment. The respondent reports that on or about July 29,
2002, the complainants moved from their residence in the Village of Cisco and now reside in the
City of Decatur. This new home is approximately fifteen miles from the bells and carillon. At
such a distance, the respondent argues, the bells and carillon can no longer be heard by the
complainants at their present location. As a result, the respondent contends that the alleged noise
pollution no longer interferes with complainants’ enjoyment. Therefore, respondent states there
is no genuine issue of material fact, as the complainants can no longer be affected by
respondent’s alleged activities. Respondent therefore concludes that it is entitled to judgment as
a matter of law, and requests that the complaint be “dismissed and stricken.” Mot. At 3.
In response, complainants assert additional facts, which they have not supported by
affidavit. In summary, complainants acknowledge that they have moved their home, but that
they seek relief for the past effects of nuisance noise on there home, as well as continuing effects
of nuisance noise on a garage and workshop they continue to own.
More specifically, the complainants respond that at the time of the filing of the complaint
on March 18, 2002, their Cisco property consisted of their residence on Lot 5 of Block 2 “in the
original town of Cisco” and their detached garage and workshop on Lots 3 and 4 of Block 2 in
the town of Cisco. The complainants state they presently reside at 2830 South Forrest Green
Drive, Decatur. They state they vacated their residence and sold their property on Lot 5 of Block
2 on July 29, 2002 “to seek immediate relief from the noise pollution”. Response, para. 9.
The complainants maintain that the respondent has violated Section 900.102 of the
Board’s regulations prior to, at the time of and since the filling of their complaint until July 29,
2002, for their properties at Lots 3, 4, and 5 of Block 2. . The complainants argue they continue
to own their garage and workshop located on Lots 3 and 4 of Block 2, and that noise violations
continue to impact this property.
DISCUSSION
As discussed above, summary judgment is appropriate when the pleadings, depositions,
admissions on file, and affidavits disclose that there is no genuine issue as to any material fact
and the moving party is entitled to judgment as a matter of law. Dowd & Dowd, Ltd. v. Gleason,
181 Ill. 2d 460, 483, 693 N.E.2d 358, 370 (1998). The Board finds that in this case summary
judgment is not appropriate.
Although there is no disagreement between the parties that the Webers have moved, there
continue to be genuine issues of material fact which require that the case proceed to hearing.
The fact that complainants have sold their home does not entitle respondent to judgment as a
matter of law as to any past violations. As complainants put it, “evidence of fact and allegations
3
of interference” can be better developed at hearing where examination and cross-examination of
the witnesses can occur.
The Board denies the motion for summary judgment. This matter shall proceed to
hearing.
IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
adopted the above order on November 7, 2002, by a vote of 6-0.
Dorothy
M.
Gunn,
Clerk
Illinois
Pollution
Control
Board
