Friday, April 10, 2009

Severity of the Noise Nuisance

A few weeks after the City's pretend investigation in April 2008 of the relentless noise next door, I wrote an "appeal" letter to City Councilman Hernandez regarding this extreme situation. The letter centered on the deliberate dumping of noise pollution onto my property, the ongoing sleep disruption, and the emotionally distressing aspects of this despicable nuisance - real problems. The injury was compounded by the clownish statements made by the City's code enforcement officers to defend their inaction.

(The only "out" I'll concede is that we - all of us - were still operating at that time under the neighbors' absolutely groundless claim of a grandfathered land use. My research - which should have been done 15 years earlier by City Planning personnel - disproves their claim.)

May 24, 2008

Mr. Vince Hernandez, Councilman, City of Manteca
1001 West Center Street
Manteca, CA 95337

Dear Mr. Hernandez,

Please accept this letter, supported with prior correspondence, as an appeal of the response by the City's code enforcement department to my noise complaint. That response on 4/28/08 (tab #7) asserts my case is closed, but I believe the new ordinance was misinterpreted and not applied correctly. You may also wish to regard this as a case study in applying the Council's recently adopted noise ordinance.

My neighbors operate a business from their property, which includes a commercial ice-making machine - not a machine designed for household use. The icemaker is located in the narrow area between the outbuilding and our common fence on the property line; a heat exchanger is part of the system and is mounted on the roof of the outbuilding overlooking the fence. It is twenty feet from my bedroom window to the part of the fence right in front of the icemaker. When these machines run - the compressor and/or the heat exchanger, day or night, for more and longer periods during the hot days and nights of summer - they pour industrial-sized noise into my yard and into my house. This situation has gone on for way too long and must be fixed.

The icemaker was installed by the business owners years ago in its present location to protect themselves and their property from the noise of their own machines. The effect is to export the noise pollution and "dump" it into my yard and house - along with the water (melting ice and condensation of water vapor from the air) running onto my property under the fence. No sound insulating structures of any kind exist to prevent this noise pollution export. The operation of this unshielded system renders my side yard useless for anything except the clothesline. Residential homes, walls and windows are not designed to insulate industrial compressor sounds, and the noise makes my own bedroom intolerable - with my windows open it is uninhabitable; I cannot sleep in it and would not even consider putting up guests or family members there. There is nowhere on my property I can go to escape the ceaseless “noise dump.”

After suffering through a year of sleepless nights, I spoke with my neighbor about the problem - and was stridently rebuffed (tab #1, p.4, line 1.) A couple weeks later, I was again the target of my neighbor's verbal hostility. I then approached the City for a permit to build a freeway-style masonry sound wall, but was talked out of that with the best piece of advice I have received during this entire three-month quest: "Why should you go to the expense and trouble of building a non-conforming structure to take care of someone else's non-conforming condition? It seems the other party should correct the problem." I was told that code enforcement people could measure sound levels with special instruments (a procedure which I later found was superseded by a new ordinance.) Trapped between an obstinate neighbor and the City's planning department, I filed a letter of complaint (tab #1), which was summarized in case #127445 on the City's outreach website (tab #3.)

Expecting a visit at my home for sound level measurements, I instead found the website case closed prematurely on 3/25/08. My followup produced further action on my complaint, and an investigation by code enforcement personnel took place. Apparently the issues were "complex" because the background checks of the business turned up a patchwork of permits issued by other governmental entities, all prior to annexation into Manteca, with questions about county v. city jurisdiction, grandfathered zoning and land use, sister city business permits, etc. A site visit yielded a few minutes of daytime noise exposure, during which the parties were awake, talking, walking about, and having the ability to escape the noise, etc. (In other words, opposite conditions to the complaint, which are: stationary for hours, not talking, trying to sleep, and nowhere to escape the noise during the [supposed] quiet midnight.) No noise abatement actions were taken by the investigators other than discussions with the business owners. The investigation was reported to me as closed (tab #7) with no finding of code violations, based on the investigators’ subjective opinions of “loudness” and on reliance of false statements made by the business owners.

Finding/Statement: “The owners of the property have taken measures to reduce if not eliminate the noise that has been coming from … an ice machine…” (tab #7, p.1, line 17.)

Rebuttal: Five weeks earlier, I had already written regarding the one totally ineffective measure taken (tab 2, p.1, line 18.) The installation of a 4x8 sheet of quarter-inch plywood in front of the icemaker does nothing to absorb or deflect the sound waves generated by the lower compressor, especially the low frequency wavelengths, which are vastly longer than a quarter-inch. (This is similar to hearing - even feeling - music's bass part booming from the car next to you at a stop light, even though everyone's windows are rolled up.) Additionally, the board is out of position if the intent was to block line-of-sight to my bedroom window. No attempt was made to sound insulate the roof-mounted heat exchanger. I was not informed of any other structural abatement measures taken by the owners or suggested by the investigators.

Finding/Statement: “The owners have placed the machine on a professional timing device that only allows the machine to operate during daytime hours, within the allowable time for the noise ordinance.” [ie., quiet from 10 p.m. to 8 a.m.] (tab #7, p.1, line 20.)

Rebuttal: If such a professional timing device is installed, as claimed, it is programmed incorrectly, it is being overridden, or it is not used at all. If a non-professional device is installed, its operation is unsatisfactory. If the statement is a fabrication, then the "controls" are also. See tab #8, p.2, line 5, for time notations on the three nights following the investigators' site visit; all three nights were in violation of operating hours. Further, out of the twenty-six nights since the findings on April 28th, there have been nine (9) occurrences of uncontrolled nighttime operations, ten (10) weekday mornings where a resident manually starts the icemaker around 6:00 a.m. before leaving for work herself, two (2) weekend nights of quiet until 8 a.m., and five (5) nights where I was out of town. That is an observed violation rate of 73% in less than a four week period of mostly moderate temperatures.

As one more example, today the machines ran continuously from 10 p.m. last night to 3 p.m. this afternoon (17 hours!) until manually shut off upon the owners' return. This proves that no timing device was operational and even the thermostatic controls don't always work.

I was elated to discover that the new noise ordinance was adopted last November 5th [2007], because it clarified any question of jurisdiction with respect to this noisy aspect of the neighboring business. The ordinance is written clearly – its intent unmistakable and its application simple. Enforcement of it is the best way to partially correct a longstanding infringement of my right to the peaceful enjoyment of my property. (Ten quiet hours out of twenty-four would be a great start - twenty-four would be best!) It is true that this problem arose many years ago outside Manteca's jurisdiction, but it became Manteca's problem upon annexing these parcels a few years back. The noise ordinance has general application, similar to the posting of a new, lower speed limit on the street out front, or a general proscription of celebratory fireworks; even oldtimers cannot claim "grandfathered exemption" based on years of precedent actions - even business permitees.

In relation to the new ordinance, permit me to quote two short items from a letter (tab #10) written by an acoustical consultant, an expert with twenty-three years in the business of advising governmental jurisdictions regarding noise codes. The first quotation:

It should be noted that there are essentially three approaches to noise regulation:

· lists of specific sounds and activities that are allowable and prohibited
· certain noises that are defined as an enforceable nuisance, regardless of level
· numerical sound level limits that are applicable at certain times / locations

Each community chooses among these elements to develop an ordinance that works best for their individual situation. Each of these technical approaches will have advantages and drawbacks.

The second quotation:

There are other methods to assess and regulate noise, but the most successful cases always address both the sound level component (loudness) and the temporal component (duration, time of day, variability, etc).

A specific example of specific sounds prohibited, with the mere standard of audibility, is found in Section 9.52.040, subsection J, of the Manteca Municipal Code, which reads:

Section 040 - Specific Prohibited Noises

Notwithstanding any other provisions in this chapter, the following acts and the causing or permitting thereof, are declared and deemed to be in violation of this chapter:

Subsection J - Commercial Establishments Adjacent to Residential Property:

Notwithstanding any provision of this code to the contrary, continuous, repeated or sustained noise from the premises of any commercial establishment which is adjacent to one or more residential dwelling units, including any outdoor area part of or under the control of the establishment, between the hours of ten p.m. and eight a.m. that is plainly audible from the residential dwelling unit’s property line. {emphasis added}

“Plainly audible” is the only loudness criterion for a violation! This is the big change from the previous procedure. Objective sound level measurements (decibels, frequencies, etc. ) are not needed; the only question needed is, “Can you plainly hear it?” Subjective statements such as, “It’s not that loud,” or, “I could sleep through that,” are irrelevant, except to prove that every investigator of my complaint could plainly hear the compressors at twenty feet.

Anyone with a bedside clock can verify the time of day (or night!) and determine that the business owners either cannot or will not confine their machines’ operations to daytime hours only.

Every observer can also attest to the continuous, repeated and sustained nature of the electrical and mechanical noises produced by making ice and keeping it from melting. Citing the “ice drop” into the storage bin as "minimal" noise (tab #7, p.2, line 1), while ignoring the paired operations of cyclical air compression and continuous heat exchange to maintain freezing temperatures, is... is... (how does one put this gently?) ... like straining a gnat from your soup but trying to swallow the camel still floating in it (Holy Bible, St. Matthew 23:24.) To clear away any confusion, let me restate: It is the compressor and the heat exchanger noise about which I am complaining primarily.

My stance, according to the ordinance: Plainly audible... commercial source noise... of a repeated, continuous, sustained nature... disruptive of a residence... at night... declared and deemed to be in violation of this chapter... See? Application is simple, intuitive, grounded in common sense and neighborly decency. It's just "right" that someone should not "dump" such pollution on his or her neighbor; it is a controllable and fixable action. Kudos to those involved in establishing this ordinance, and particularly this subsection J.

My neighbors stance: No timing controls... falsifying the controls' existence... no abatement actions except a piece of plywood... frequent breakdowns or "forgetting" to shut down the system at night... deliberate manual startups at 6 a.m. instead of 8 a.m.... In essence, no changes and no understanding of the ordinance even after a visit from code compliance personnel.

In my initial complaint I wrote, “It is not my intent to put [the business owners] out of business, but it is my intent to get some peaceful relief from the noise caused by [the business].” (tab #1, p.1, line 18.) I can handle normal nighttime noises, such as neighborhood dogs and geese, trains and cars in the distance, and even most of the business owners’ preparations for their daily 4 a.m. departure on weekdays. What I cannot handle is my loss of sleep caused by the unpredictable, on again/off again, thrumming drone of commercial compressors just outside my bedroom window! Every night I hesitate to sleep in my own bedroom for fear of being jarred awake every fifteen or twenty minutes during the next few hours as these machines start up and cut off, start up and cut off, start up and ...

On April 4th [2008] I wrote, ”…by filing the complaint in March [2008], it was my hope that the City of Manteca and its various departments would assist in getting various issues sorted out before another hot summer rolls in on us.” (tab #5, p.1, line 18.) With summer only weeks away, it's good to know the City Council also adopted Ordinances #1371 and #1372 to “put some teeth” into code enforcement. Now, “Each and every day a violation of any provision of the municipal code or applicable state code exists constitutes a separate and distinct violation,” and may involve penalties. I'm not hoping for penalties against my neighbors; my only and sincere hope is that these noise violations are fully cured before summer arrives, reduced to zero nights rather than climbing to 100% of nights. To that end, enclosed is a list of some possible abatement actions, with my suggestions and comments.

Mr. Hernandez, I would be pleased to meet with you at any time regarding this appeal.

Respectfully submitted by,

Richard W. Behling

enclosures: previous correspondence
abatement options

cc: Mr. David Bricker, Interim Chief of Police

Thursday, April 9, 2009

Lawyer up!

Immediately after the backhanded shuffle pass made by the Manteca City Council at their meeting last month (Tuesday, March 3, 2009), I was momentarily undecided how to procede. But two days later I had a telephone conversation with my consulting attorney and by Friday made a retainer payment. We met again last Tuesday (April 7) and he outlined his legal research and the process that would develop over the next couple months.

My (blog) silence since March 9th was due, firstly, to the loyal readership of Rex Osborn. The real shame is although he reads, he doesn't process information very well, as evidenced by the misconstructions and innuendos that came out of his mouth during the city council meeting (see the City Council meeting transcript.)

Secondly, because of the direct hot line that the O. Rex has with Lynda Allen, next door, I felt it best to play things close and keep the suspense going. Why let anyone know who I'll sue or when I'll do it? These women, Lynda, Theresa, and Corky, are real works of art; THEY wake me up at 3:00 a.m. with the hour-long "ICE BUCKET BRIGADE" and then Lynda calls the police on ME when I go out on my front porch at 4:30 and watch them drive away in their "roach coach."

Of course, Theresa starts banging around in the outdoor refrigerators, next to the icemaker, at 12:30 or 1:00 a.m. before firing up the catering truck's grills, slicing and dicing ingredients, and sending up clouds of greasy smoke smelling of tortillas, sausage, and other fried items on the midnight air.

After the truck finally leaves, it's Corky's turn until 6:30 a.m. - slamming doors, restocking perishable foods in the across-fence refrigerators, dropping dog-proof trash bin lids, vacuuming the house, shoveling ice into her lunch cooler, and more ice into buckets for the yard dogs (the same buckets used to fill the catering truck with ice, or to turn upside down on the ground and use as stepstools). Her last and most important task is punching the icemaker's ON button and hurriedly driving away, leaving the icemaker noise behind for my benefit (or, detriment.)

It is instructive to note that when these three have company over on weekends, they tend to leave the noisy, disruptive icemaker OFF until it's "safe" to run again.