NOV
2
1
2008
con
Board
KYLE NASH,
Complainant,
V.
LOUIS
JIMENEZ,
Respondent.
)
)
)
PCB
07-97
)
)
(Citizens
Enforcement
-
Noise)
)
NOTICE
OF
HUNG
AN])
PROOF
OF
SERVICE
TO:
Kyle
Nash
Bradley
P.
Halloran,
Hearing
Off.
1630
W.
33rd
Place
James R.
Thompson
Center
Chicago,
IL
60608
100W.
Randolph
St.,
Ste
11-500
Chicago,
IL
60601
Clerk,
IPCB
James R.
Thompson
Center
100
W.
Randolph
St.,
Ste
11-500
Chicago,
IL
60601
PLEASE
BE
ADVISED
that
on
the
21
day
of
November,
2008,
Respondent
Karen
Sokolowski
and
Respondent
Luis
Jimenez,
by
and
through
their
attorney
James
M.
Knox,
filed
their
motion
to
consolidate
these
matters
and
for
leave
to
file
Reply
to
Complainant’s
Response
to
their
respective
Motions
to
Dismiss,
along
with
their
Reply,
all
of which
were
Received
by
the
Clerk’s
Office
and
Mailed
to
the
Complainant
this
date,
true
and
correct
copies
of
which
are
attached
hereto
and
herewith
served
on
the
above persons
at
the
addresses
indicated.
NAME:
ADDRESS:
TELEPHONE:
James
M.
Knox,
Attorney
for
Karen
Sokolowski
and
Luis
Jimenez
121
W.
Chestnut,
#3104,
Chicago,
IL
60610
312/587-1356
CERTIFICATE
OF
SERVICE
Under
penalties
as provided
by
law
pursuant
to
Sec.
1-109
of
the
Illinois
Code of
Civil
Procedure,
the
undersigned
certifies
that
a copy
of
this
Notice
of
Filing
and
Certificate
of
Service,
with
attached
Motion
and
Reply,
was
served
on
the
above persons
at
the
addresses
indicated
above,
by
depositing
true
and
correct
copies
thereof
in
a
sealed, properly
addressed,
postage
pre-paid
envelopes,
and
depositing
the
same
in
the
United
States Postal
Service
drop
box
located
at
121
W.
Chestnut
Street, Chicago,
IL
60610,
before
4:30
p.m.,
on
November
21,
2008.
Witnessed
and
certified
to
this
2U
t
day of
November,
2008.
James
M.
Knox
BEFORE
THE
ILLINOIS
POLLUTION CONTROL
BOARD
KYLE NASH,
)
Complainant,
)
v.
)
PCB
07-96
)
KAREN
SOKOLOWSKI,
)
(Citizens
Enforcement
-
Noise)
LAW
OFFICES
OF
JAMES
M.
KNOX
BEFORE
THE
ILLINOIS
POLLUTION
CONTROL
BOARrOV
212008
KYLE
NASH,
)
OFILLJJJ
Complainant,
)
Control
Board
v.
)
PCB
07-96
)
KAREN
SOKOLOWSKI,
)
(Citizens
Enforcement
-
Noise)
KYLE
NASH,
)
Complainant,
)
v.
)
PCB
07-97
)
LOUIS
JIMENEZ,
)
(Citizens
Enforcement
-
Noise)
Respondent.
)
MOTION
TO
CONSOLIDATE
AN])
TO
FILE
REPLY
NOW COME
respondents,
KAREN
SOKOLOWSKI
and
LOUIS
JIMENEZ,
by
and
through
their
mutual
attorney,
JAMES
M.
KNOX,
and
for
their
Motion
to
consolidate
and
for
leave
to
file
Reply,
instanter,
state:
1.
Both
above
captioned
proceedings
were
filed
by
complainant,
Kyle
Nash,
seeking
relief
from
environmental
noise
pollution
said
to emanate
from
adjacent
two
flat
residential
apartment
buildings,
or
from
the
respective
yards
or porch
areas
thereto,
which
are
owned
by
the
respective
respondents
herein,
and
are
located
on either
side
of
complainant’s
own
nearly
identical
two
flat
apartment
building,
each
of
the
three
located
mid-block,
in
a
City
of
Chicago
near
Southside
residential
neighborhood;
the
three
architecturally
nearly
identical
buildings
were
constructed
so
as
to
stand
some
six
feet
apart,
allowing
only
narrow
passageways
between
buildings on
either
side
of
complainant’s
own
building,
with
small
open
yards
at
the rear
of
each.
2.
These
two
proceedings
are
identical
with
respective
to the
issues
involved,
have
the
same
time
frame,
both
parties
having
retained
attorney
James
M.
Knox
to
represent
them
in
the
premises,
requesting that
these
matters,
having
the
same
causation
issues,
and the
like,
and
in
the
interests
of
judicial
economy,
should
be
consolidated
to
ensure
fairness
to
all
involved.
3.
In
response
to
complainant’s
initial
pleadings
herein,
Respondents
filed
separate
but
identical
Motions
to
Dismiss,
asserting
that
the
noise
making
devices
identified
by
complainant,
viz
wind
chimes
in
both
cases,
have
been
removed
from
their
respective
properties
more
than
one
year
ago,
and
the
complainant
has
now
filed
a RESPONSE
to
the
Motions
to
Dismiss,
introducing
new
matters,
not
referable
to
noise
pollution,
and
the
parties
request leave
to
consolidate
these
cases
and
for
leave
to
file
their
joint Reply
thereto..
WHEREFORE,
based
on
the
foregoing,
respondents
request
that
these
matters
be
consolidated
and
that
they
be
permitted
to
file
their
mutual
Reply
to
the
responses
of
complainant,
instanter.
Respectfully
submitted,
Attorney
for
Respondents
James M.
Knox
Attorney
for
Respondents
Chestnut
Tower
121
W.
Chestnut,
#3
104
Chicago,
Illinois
60610
312/587-1356
RCEflVED
BEFORE
THE
ILLINOIS
POLLUTION
CONTROL
BOAR])
CLERfcS
OFFICE
KYLE
NASH,
)
NOV
2
‘ 2008
Corn
p
lainant
,
ollutfr)fl
STATE
OF
Control
ILLINOIS
Board
v.
)
PCB
07-96
)
KAREN
SOKOLOWSKI,
)
(Citizens
Enforcement
- Noise)
)
KYLE
NASH,
)
)
Complainant,
)
)
v.
)
PCB
07-97
)
LOUIS
JIMENEZ,
)
(Citizens
Enforcement
-
Noise)
)
Respondent.
)
RESPONDENTS’
REPLY
TO
COMPLAINANT’S
RESPONSE
TO
MOTIONS
TO
DISMISS
NOW
COME
respondents,
KAREN
SOKOLOWSKI
and
LOUIS
JIMENEZ,
by
and
through
their
attorney,
JAMES
M.
KNOX,
and for
their
Reply
to
Complainant’s
Response
to
Motion
to
dismiss,
state:
1.
Both
above
captioned
proceedings
were
filed
by
complainant,
Kyle
Nash,
seeking
relief
from
environmental
noise
pollution
said
to
emanate
from
adjacent
two
flat
residential
apartment
buildings,
or from
the
respective
yards
or
porch
areas
thereto,
which
are
owned
by
the
respective respondents herein,
and
are
located
on
either
side
of complainant’s
own
nearly
identical
two
flat
apartment
building,
each
of the
three
located
mid-block,
in
a
City
of Chicago
near
Southside
residential neighborhood;
the
three
architecturally
nearly
identical
buildings
were
constructed so
as
to stand
some
six
feet
apart,
allowing
only
narrow
passageways
between
buildings
on
either
side
of
complainant’s own
building, with
small
open
yards
at the
rear
of
each.
2.
In
response
to complainant’s
initial
pleadings
herein,
Respondents
filed
separate
Motions
to
Dismiss
which
were
filed
on
or
about
August,
2008,
asserting
that
the
noise
making
devices
identified
by
complainant,
viz
wind
chimes, have
been
removed
from
both
of their
respective properties
more
than one
year
ago, facts which
are readily
admitted
by complainant;
further,
both respondents
have advised
their attorney that
they
do not
intend nor will either
of
them
ever install similar
devices on their
respective
properties, front or
back, in the future,
and
this fact has been
made known
to
the
complainant
at Status
conferences
held
herein
by Bradley
P. Halloran, Hearing
Officer, with
an offer
by
respondents
through
their attorney
to
enter
into
an
agreed order
to
memorialize
this
agreement
to
preserve the
status quo between
the parties hereto
and purchase peace.
3.
In spite
of these voluntary
efforts
on the
part of respondents
to
ameliorate
this
situation, complainant
has now filed
a
RESPONSE
to
the
Motion
to
Dismiss,
introducing
for the
first time new extraneous
matters,
which are not referable
to
noise
pollution,
basing
these
matters
on unsubstantiated hearsay
statements
which
are
unsupported,
irrelevant
and immaterial, with
still
no
mention
of noise standards purportedly
violated.
4.
Title VI, Noise 415
ILCS
Section
24,
provides
that “...no person
shall emit
noise
that
unreasonably
interferes
so
as to
violate
regulations or standards
adopted
by the Board;”
while
Section
24
also provides that
“[T]he Board
may
adopt
regulations,
limitations,
prescribe
requirements,
prescribe
maximum
permissible
limits...” and, Sections
30-3 1
prescribe
.detailed
explanation of
violations alleged...”
3
1(a)(1)B, and
C
“actions
that may resolve...;”
and
furthermore, Section
42
provides
mitigation,
duration
and
gravity considerations
combined
with
“due diligence,”
considerations in
such enforcement
proceedings
which
we
submit
have
been
met
in this case
by
the respondents
who
have
- and
this is not in issue,
complainant freely
admits
this - by voluntarily
removing the
noise making
devices,
viz
wind chimes, they
have
both
mitigated
the
noise
pollution
by voluntary
removal of the
offending devices,
and have
been
therefore
duly
diligent.
5.
Please keep
in mind that
the subject neighborhood
in question where the
three
individual
property owners reside,
is
a
reasonably
quiet,
residential
area,
about
a
block
from
a
busy
thoroughfare,
with
Chicago Fire
Department
nearby
and
the usual
ambulances, police
and
other
emergency equipment
moving
up and down
the nearby streets
at
all hours
of the day
and
night,
and with
a
playlot
public
park
directly
across
the
narrow
Street fronting
the three
properties
where
children
of
different
ages
are
in
evidence
a
good
part
of the
day,
with
apartment
buildings
lining
either
side
of
the Street
on
narrow
lots with
automobiles
parked
on either
side,
and
with
residents
coming
and
going
at
all
hours
of
the
day
and
night,
this
is
anything
but
a
completely
quiet,
sleepy
area
by
any
stretch
of the
imagination.
6.
Complainant
would
now,
in her
Response
introduce
for
the
first
time
extraneous
and
irrelevant
matters,
having
no connection
with
the respondents,
and
is asking
the Board
to
now
consider
“dog
feces
and
assorted
garbage”
being
tossed
into
her
yard, tree
branches
and
the
like,
unexpected
telephone
calls
and
graffiti
mysteriously
appearing,
all
of which
the
respondents,
and
each of
them,
denies
having
any involvement
with,
and
categorically deny
that
they
would
ever
institute,
initiate
or
in anyway
contribute
to
such goings
on
or
occurrences
which
they
abhor
personally,
and
which
as
law abiding
citizens
would
never
condone
and
would
jointly
seek
to
prevent
if
it were
within
their power.
7.
We take
notice
of
the
fact
that
the Board
has
numerous
meetings
on
momentous
matters
involving
commerce
and
industry
operating
on
a large
scale,
and
this
matter
while
minor
in the
grand
scheme
of things,
is
very
important
to
the
respondents,
as well
as the
complainant,
and
should
be
resolved
expeditiously
on
the pleadings.
8.
Frankly,
neither
respondent
can
afford
to conduct
this new
“fishing
expedition”
proffered
by the
complainant,
although
as neighbors,
they
too
are
concerned
about
the
conduct
of
the
neighborhood,
do
not wish
to
have refuse
deposited
in their
own
yards,
excessive
noise
or
the like
interfering
with
neighborhood
peace
and
quiet,
and
both
would
simply
like
to
go on
existing
as law
abiding
members
of
the
community,
without
undue
interference
from
neighboring
properties
or
their
immediate
neighbors,
including
the
complainant,
or
anybody
else.
9.
The
chimes
are down
now
and
will
stay down;
both
homeowner
respondents
go to
work
each
day,
Karen
Sokolowski
leaves
between
6:30
and
6:45
a.m.
each
day
and
returns
at 7:30
- 8:00 p.m.,
seven
days
a week,
Mr.
Jimenez
similarly
works
long hours,
and
everyone
wants
this
matter
over
with,
concluded
and resolved,
so
that they
can
go on
with
their
lives.
WHEREFORE,
based on the foregoing,
respondents
renew their request
to
expedite
these
proceedings and respectfully
requests
that the Board dismiss
these
proceedings,
with prejudice.
Respectfully submitted,
Attorney for
Respondents
James
M. Knox
Attorney for
Respondents
Chestnut
Tower
121 W.
Chestnut,
#3104
Chicago,
Illinois 60610
312/587-1356