For fifteen years, the neighbors have had to deal with these high noise levels. Part of the problem that City Manager Bill Emlen used to explain the City’s apparent lack of action on this issue was that because this was a planned community, the day care center does not come with a conditional use permit. Mr. Emlen claimed that this prevented the city from having the teeth to enforce laws on the books and work with the neighbors to resolve the noise issue. However, as Mr. Emlen conceded there are a number of other tools that can be utilized.
“it is an action declaratory of existing policy as applied by the City of Davis. It would not change the operation of existing schools or day care centers, which are exempt from CEQA as Existing Facilities. Any future new schools or day care centers would be subject to discretionary and CEQA review at the time of proposal.”
However, neighbors presented the City with a letter from Attorney Mike Jansen, which laid out a very different view of CEQA requirements.
The City cannot claim that the ordinance amendment is declaratory of policy to exempt existing facilities, because the City has already required the Montessori School to undertake mitigation measures, such as the sound wall. Moreover, there is no such exemption under CEQA and any jurisdiction that presumes this exemption is asking for trouble.
The sound engineer Steve Pettyjohn who had examined this site as early as 2005, told the City Council of several cases where cities in making similar changes were forced by a court of law to conduct an EIR. He pointed out that even in the absence of a noise ordinance, there were still State of California nuisance laws on the books since 1850 that protected homeowners from conditions that irreparably harm the quality of life.
Mr. Pettyjohn explained to the City Council he was originally hired by the owner of the property, John Hillis, to demonstrate that noise levels from the daycare facility were legal. However, when his readings showed Mr. Hillis was in violation, he asked Mr. Pettyjohn to bury his report. The neighbors contacted Mr. Pettyjohn two years later to do another noise study paid for by the neighbors. Both sound study reports which clearly showed excessive and illegal noise coming from the daycare center became the basis for and were instrumental in forging the agreement on August 24, 2007 and again proved vital for City Council’s actions on Tuesday night.
Councilmember Stephen Souza pressed the city on the issue of that agreement. On that date the city agreed along with the owner and the neighbors to construct a sound wall to mitigate the noise. This was completed. However the city went further than that by stipulating in the letter from Mark Wood:
“After the fence was in place we would re-evaluate the noise levels to determine if other measures need to be taken.”
Upon questioning from Mr. Souza, both City Manager Bill Emlen and Community Development Director Katherine Hess admitted that despite that agreement the City had not in more than two years done this. In his comments this point was central to his concerns along with the very basic premise that home owners should have their quality of life protected by such ordinances.
“I believe that the August 24, 2007 letter directs us to this motion. We have agreement from the owner of the property, we have agreement from the parties that feel aggrieved, that the noise should be reevaluated. Until the noise is reevaluated, how do we know that they are not in continual violation of the noise ordinance and the noise ordinance not only affects the neighbors as it has been pointed out, it affects the kids. It affects the kids who we are required to protect.
It is incumbent upon us that if they are in violation of the noise ordinance, through their activities, that those activities need to be curtailed in a way that allows for the children to have proper health conditions in their play activities for the noise that they have.”
It was Councilmember Lamar Heystek who moved and Councilmember Stephen Souza who seconded the motion that flipped the issue on its head and instead of allowing the owner to utilize a purported exemption in the law to avoid working with his neighbors, will force him to resolve the differences with his neighbors in a timely fashion.
“I’m going to move to require the owner of the Montessori Daycare to reevaluate the noise levels [and] to determine which mitigation measures in the Pettyjohn Sound Report should be taken.”
The other crucial issue that seemed to have a large impact on Councilmembers’ thinking, was the Council being able to see through a blow up of a picture of the facility, the design flaws of the daycare center itself. As one can see in the picture above, the sound is almost focused through the design, the patio, the overhang, to reflect and concentrate noise to the neighbors. As one of the neighbors, Bill Ritter pointed out, it is basically an echo chamber.
As Mayor Ruth Asmundson pointed out, it is a “chamber” and she noted when they visited the facility there were ways that noise could be mitigated.
There was unanimous agreement on the fact that the existing issue ought to be dealt with. At the same time, Mayor Pro Tem Don Saylor continued to argue that sounds generated by children should not fall under the noise ordinance. He moved for passage of the resolution with a modification on the time period for the exemption which was originally to be 7 am to 7 pm but amended to 9 to 5:30.
While Mayor Asmundson seconded the motion for purposes of discussion, it is clear that the motion did not have the support of three councilmembers. As many pointed out, this is not an issue of children playing, children will under this ordinance have the ability to make noise while playing. Assistant Police Chief Steve Pierce pointed out that the police have rarely been called on to enforce the noise ordinance with regards to children. It was also pointed out both by Mr. Pierce and city staff, that this issue and complaints appear unique to this facility.
As Councilmember Sue Greenwald pointed out, at the point at which the sound levels approach violation of the noise ordinance, it is really ceasing to be sounds from children. It is difficult to violate the noise ordinance—as the thresholds are very high.
Councilmember Souza said of Mr. Saylor’s motion:
“I believe the motion’s premature until we act upon the motion we just passed.”
The motion was withdrawn by Mr. Saylor until the first issue is resolved.
Councilmember Heystek pushed for an additional stipulation that the issue be resolved by May 1.
Councilmember Souza:
“On August 24, 2010, it will be three years since this agreement was reached.”
While, the neighbors got a large amount of what they have been working for these fifteen years, it is important to recognize that the noise ordinance needs to stay on the books beyond this point in time. The agreement with the city would not have teeth without this ordinance. It is rarely used with regards to issues involving daycare centers, but in this case, there are several problems that have necessitated its enforcement.
The first is no fault of the owner who purchased the facility after the fact, and that is a basic design flaw that needs to be mitigated. There are a number of solutions that can be utilized from moving the children away from the neighbors backyards to resurfacing the play area, to exchanging the wheels on the big wheels, to employing sound dampening methods.
That leads to the second point which was an apparent inability of the owner Mr. Hillis to work with his neighbors. This should have been resolved a long time ago. And now, as Mr. Souza aptly pointed out last night, in May 2010 it will be a few months shy of three years from the date of the agreement in 2007.
As the neighbors pointed out, they are not asking for the school to be closed, one of the neighbors in fact is a teacher and the neighbors simply want to be able to enjoy the peace and tranquility of their homes. It seems that is the exact reason that this noise ordinance was designed and we simply need to enforce existing law.
This was a good victory for the neighbors and for the health and well-being of the children.
—David M. Greenwald reporting
Although I am happy with the possible resolution of this issue for the neighbors and children and the neighbors did a fine job of presenting the issue, once again the staff was left with no excuse but incompetence, on the heels if the cell tower fiasco. Is the CEQUA issue over because Harriet says it is?
I am dismayed that the ordinance change will come back. Am thinking Don Saylor will try to slip it by again. What will be different next time? And with all the issues the city is facing, this took up a chunk of CC time.
I agree with SODA. While its nice to see our CC do the right thing for a change, I don’t see why this issue could not have been resolved without the City Council. I’m also distressed by the fact that two City Council members appear to be trying to avoid a reasonable solution. I have a 4 year old who goes to another daycare center in town, so I think I can see both sides, but if there is a reasonable mitigation here the neighbors have every right to it. The fact that the daycare center tried to cover up a report by a consultant they hired is distressing.
Completely agree with both of you. This went on way too long and should have been resolved long ago.
I wonder how many other of these kinds of situations that are ongoing that we just do not know about. It is only really by happenstance that I knew about this one and therefore could reveal the true intent of the ordinance change.
What was really most remarkable in this affair was the incompetence demonstrated by city staff. The arguments made last evening pro and con for the exemption plan were a “slam-dunk” for those who challenged the city’s exemption plan. Bill Emlen must have been well aware(or should have been) of the obvious city negligence in not following through with the agreement between the parties made several years ago.
I watched much of the discussion of this issue on TV. I thought the most telling part was when Lamar Heystek asked staff, “What problem does the proposed change in the noise ordinance solve?” There did not seem to be any semblance of an answer to that question, though some mumbo-jumbo was expressed … to fill the void. [quote]that is a basic design flaw that needs to be mitigated. There are a number of solutions that can be utilized from moving the children away from the neighbors backyards to resurfacing the play area, to exchanging the wheels on the big wheels, to employing sound dampening methods. [/quote] It seems to me the solution — suggested last night by a number of speakers — is 1) to move the primary play area to the northwest side of the property, away from the homes on the east side; 2) replace the concrete patio with something like wood chips or a rubberized exterior-grade carpet surface (like many new playgrounds use) which won’t amplify noise; and 3) shut off the doors leading to that northeast patio; 4) put in a new door near the northwest of the building; and 5) for rainy days, construct a new covered porch on the northwest side where kids can play, but their noise won’t impact the neighbors.
Rich
and 5. Do NOT change the ordinance.
I hope you can all pick up what Saylor’s real motivation is that’s lurking behind his motion to exempt children and schools from the noise ordinance.
Are you all forgetting the highschool and the outrageous noise of the foot ball games??????
They are going to try and slip the highschool in as exempt too. I heard the loud speakers from the football game, from the highschool to n street.
Be on the look out y’all…be careful..we’ve got to keep Saylor accountable. He has GOT TO GO!!!!
Are you all forgetting the highschool and the outrageous noise of the foot ball games??????
In response to the first football game in the new stadium, I read the letters to the editor in the Enterprise from neighbors asking the district to tone the noise from the game.
In the following school board meeting, one of the adminstrators (Pam Mari, I think) acknowledged the noise and said that the admin staff was looking for ways to mitigate.
Did the sound situation improve any for subsequent home games?
No it didn’t. I distinctly remember that the friday after the news brought up the noise issue, I heard once again the loud speakers of the commentator blaring over the schity of davis.
What needed to happen with the noise issue and John Hillis’s daycare, is that he needs to move his business to a non residential area and if there is a residential area that’s willing to accept his business in their neighborhood, then it should be far far far from the homes so as to mitigate the noise.
putting up a wall is not going to mitigate any noise.
i also find it interesting that the police assistant chief was there to downplay the amounts of complaints made to them. they always do that whenever they don’t want to be held accountable or do their job.
it’s the job of the cops to deal with noise complaints…if the cops don’t want to bother, then it needs to go to court.
i don’t understand why the neighbors haven’t taken John Hillis to court.
it’s a slame dunk win in their case if they take him to small claims court and present all their evidence..
the judge (no matter how corrupt or biased) will have no choice to vote according to the law…
judges for the most part in yolo county don’t follow the law. sad to say but it’s true. they vote according to what they’ve heard through the grapevine.
if a friend has an issue that needs to be “dealt” with in the court system in yolo county, all they need to do is make a “phone call” and a judge will deal with it and break the law.
welcome to yolo county superior court.