Katherine Hess, the City’s Community Development Director, argues in the staff report that the ordinance is not covered under the California Environmental Quality Act (CEQA).
“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.”
The Vanguard has spoken with numerous lawyers on this subject who argue very strongly otherwise.
First of all, the city is attempting to pass this ordinance under an exemption for Existing Facilities however, no such exemption exists under CEQA. Moreover the city is arguing existing of declaratory policy, however this is also untrue. If it were, the city would never have required the Montessori School to undertake mitigation measures such as a sound wall in the first place.
This zoning amendment is subject to CEQA.
The Zoning Amendment is a discretionary action that is squarely under the definition of “projects” to which CEQA applies. CEQA Guidelines section 15378 specifically defines a “project” as follows:
15378. Project
(a) “Project” means the whole of an action, which has a potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment, and that is any of the following:
(1) An activity directly undertaken by any public agency including but not limited to public works construction and related activities clearing or grading of land, improvements to existing public structures, enactment and amendment of zoning ordinances, and the adoption and amendment of local General Plans or elements thereof pursuant to Government Code Sections 65100-65700.
In this case, the city will amend its Noise Ordinance to exclude schools and daycare facilities from its purview. Excluding all such facilities from noise regulation will clearly and obviously have a [i]reasonably foreseeable impact[/i] on the ambient noise environment. The Montessori School, as we know, has already had to implement mitigation measures. The city therefore has a legal obligation to conduct CEQA review for this ordinance.
To paraphrase the Fourth District Court of Appeal in City of Redlands v. County of San Bernadino (2002):
“CEQA requires a lead agency to look beyond mere changes in language of its policy to the ultimate consequences of such changes to the physical environment.”
The City of Davis must heed this advice and conduct CEQA review to evaluate the Ordinance’s true impacts to the physical environment.
City Manager Shows Insensitivity to Neighbors Concerns and Children’s Health
Mr. Emlen is quoted and paraphrased as saying:
“With no buildings to muffle the sounds of children playing, screams and squeals from the playground traveled freely to the three or four homes directly alongside the daycare, City Manager Bill Emlen said.”
He continues:
“While the wall did minimize the sounds a little bit – and reduced the incidences of toys being flung into yards – neighbors could still hear the playground noise and the complaints continued, Emlen said.”
Furthermore:
“The staff recommendation, Emlen said, is a ‘pragmatic response’ to an ongoing problem that will probably not be resolved without changing the configuration of the school and homes.
‘Kids are never quiet when they go outside,’ Emlen said. ‘In the real world, we know that’s something that’s almost unavoidable.'”
Noise may be unavoidable, but reasonable steps can be taken to reduce the noise. We have laid out many of these steps in previous articles. But the picture above illustrates the nature of the problem.
The configuration of the school and the covered enclosed patio practically funnel noise and concentrate it directly at the neighbors homes. The sound experts who evaluated the site recommended the sound wall but also additional mitigation measures. Indeed the city agreed to these measures.
In a letter from Mark Wood, a city staffer to the City Manager, members of the city council, the owners of the daycare center, and the neighbors, they agreed to construct a sound wall and then:
“After the fence was in place we would re-evaluate the noise levels to determine if other measures need to be taken.”
This never occurred.
The sound expert recommended moving the exit doors so that the kids would exit away from the residences, changing the surface of the patio that would reduce the noise from the wheeled toys, changing the tires of these toys to soft rubber, among other changes.
But we can be much more basic here. Right now, the configuration puts a majority of children right against the backyard of many homes and it does so with a covered patio that will amplify and direct the sound right at the neighbors. The simple solution would be, change where the children play. That’s not unavoidable. There is a huge yard and there is no reason that sound needs to be concentrated at the place where the yard is closest to the neighbors in a way that is most certain to amplify the sound.
However, the city manager here is either completely ignorant of the configuration and the problems it causes or completely insensitive not only to the concerns of the neighbors but also the health and safety of the children who are subjected to sound levels of 90 decibels and probably higher.
With very modest changes, this situation could have been corrected years ago by the city. Instead they have allowed it to continue for 15 years. That extends beyond the terms of the current city manager and city council, however, they have known about this problem for long enough. This is nothing short of irresponsible negligence on their part. And now they wish to compound the problem by exempting the facility from the noise ordinance rather than force the owner to comply with it.
—David M. Greenwald reporting
Katherine Hess (CDD) isn’t on the side of the citizens in many issues. On new construction projects, developers are allowed to work from 7-7 M/F and 8-8 S/S. In this case, the City Manager doesn’t seem to be either. Too bad. It looks like the day care center problems could be solved.
I think Katherine is correct in that you cannot go back and enforce CEQA on buildings or facilities that already exist. The school is not applying for any change in their facility.
I live right next door to a day care center. Not once has there ever been a noise problem to my knowledge. However, children are not allowed to ride big wheels, and much of the play area is covered in grass. Very simple measures that keep the noise level down. The children’s voices have never been raised to a level that has caused the neighbor’s any concern. If this daycare can be a good neighbor, so can every other daycare center in Davis. Exempting daycares and schools from a noise ordinance would be – point blank – detrimental to the CHILDREN – lifting a protection for them and their tender ears.
Bill Emlen,Vacaville resident, is in violation of Davis law that REQUIRES that our city manager be a Davis resident. He was initally given the city-manager job with the understanding that he would become a
Davis resident within some reasonable time. This concept offers at least some potential positive effect, in a small town like Davis, to the political/social disconnect that can occur between a non-resident city-manager and the city’s residents.
I hope the neighbors come to speak out tonight. Will you be able to argue or present the legal contradiction David or bring a lawyer?
Thanks for continuing to bring this issue to light!
This is a most remarkable thing from a legal point of view. When there is a problem with someone purposely violating existing law conventional wisdom is simply to encourage law enforcement to write citations when they think it is appropriate based upon evidence and the law. The idea behind having quasi criminal sanctions for law violations is that they will provide a financial incentive for the offending parties to modify their behavior to comply with the law. Such a procedure affords the built in safeguards of the Criminal Justice System including the burden of proof. The Davis City Council approach is quite different. They apparently have ordered the Davis Police Department not to issue citations to one offender and one offender only. I have heard of no similar policy extended to students or other Davis businesses. The City Council approach is to modify the law. Furthermore they apparently don’t wish to modify it for everyone. It appears they want to modify it for the benefit of one person. Not only does CEQA apply, tailoring the law to benefit one person is of questionable legality as well.
Somebody needs to try to convince me that Davis City Council isn’t bought and paid for. I am not buying it at this point. Nothing else makes sense to me. For years, one of my duties has been to provide legal advice to County Councils when one of their proposed activities stinks up the place. About this proposed action I recognize that same smell that has always made me nervous in the past when it involved people I was giving legal advice too.
[i]”Bill Emlen, Vacaville resident, is in violation of Davis law that REQUIRES that our city manager be a Davis resident.”[/i]
The “law” was revised last January when Bill signed a new contract. The new language ([url]http://cityofdavis.org/meetings/councilpackets/20090127/04D_City_Manager_Contract.pdf[/url]) reads: [quote] The City Council and Emlen agree that due to economic and family considerations, it is not feasible for Emlen to relocate to Davis prior to June 30, 2012. The City and Emlen further agree that there has not been any detriment to the City by reason of Emlen residing outside of the City. The parties further acknowledge that delaying or waiving any relocation requirement results in savings to both the City, through deferral of its obligation to pay relocation costs, and to Emlen, through not being required to sell his current residence and relocate at this time. The City and Emlen understand and are aware that there is a current Davis City Municipal Code provision requiring the city manager to relocate to the City. and that Emlen will endeavor to relocate to the City prior to June 30, 2012, unless: (1) this time frame is extended by mutual agreement; (2) the City Council amends the City Code to delete this Code provision, in which case Emlen shall not be required to relocate to Davis; or (3) the City Council modifies this Code provision to provide that the City Manager’s residence shall be as determined in the City Manager’s terms of employment, in which case Emlen shall not be required to relocate to Davis. [/quote] For those who have a strong opinion on Bill Emlen’s residence outside of Davis, you might be interested in what one of our current city council members said when Bill was promoted to City Manager: [quote] Although he is not a Davis resident, Emlen has a good grasp of what makes Davis tick, said (this mystery person). “I think we’re very fortunate indeed to have Bill accept this offer from us,” (mystery person) said. “I think what I like most about Bill is he really understand Davis, what makes Davis unique.” [/quote] Any guess as to who the mystery person is?
[quote]I think Katherine is correct in that you cannot go back and enforce CEQA on buildings or facilities that already exist. The school is not applying for any change in their facility.[/quote]
I think you may have missed the point. The argument here is that changing the noise ordinance creates an impact on the neighborhood that would require the city to do a CEQA not the school.
Katherine Hess has never been on the side of the citizens. I went to speak to her and Danielle Foster about the outrageously inaffordability and rents of “low income” housing. Low income housing is a huge industry. Both these two women and many city employees get money (150 dollars per hour) to work on new developments.
Trying to exempt the noise ordinance issue by disguising it as a “school children’s rights” issue is a cock and bull scheme. To place this daycare that is in close proximity to these houses in the same category as the schools is ridiculous.
If anybody takes a look at all the Davis schools you will see that they are on HUGE lots and far away from the houses.
The architecture and the design of the schools took into consideration that there are people living in homes that have the right to live in peace quiet and enjoyment of their house.
If you live around these schools you don’t suffer the same noise pollution because the kids are far away from the homes and are out at specific times. Take a look at Birch Lane, Valley Oak, Pionneer and Holmes Junior High. The playground is HUGE and the kids don’t even come close to fences of the neighbors. The noise is disseminated.
With the Daycare center, the noise is concentrated and way to close to the neighbor’s homes. It’s a surprise that this business was allowed to exist right next to a residential neighborhood.
It’s the same thing as putting a night club in a neighborhood. What was the city thinking by allowing this company to have it’s business here?
Why are city employees allowed to take money from tax payers and developers?
Why is this city so corrupt. We need to do something about it./
“Any guess as to who the mystery person is?”
I think that most of us know who is this mystery Councilperson . From his/her perspective, since this Councilperson does investigate, research and ATTEMPT to vigorously assert Council oversight of the city manager’s plans,her observation is valid in theory. In the absence of a Council majority that fails to take, as its prime directive, the responsibility to look out for the interests of Davis voters, it is problematic whether it is a good idea to eliminate the concept of having a city manager who is also our “neighbor”.
[quote]Both these two women and many city employees get money (150 dollars per hour) to work on new developments. [/quote] How did you arrive at that figure of $150/hour? Do you have a source you can reveal for that information?
What happened at tonight’s CC meeting?
Council unanimously voted to direct staff to fix existing noise problems. Saylor wanted to still get the exemption but didn’t have the votes and pulled the issue until May. Full story tomorrow.
On TV it looked good, but in person it looked even better. I have to give David Greenwald a RICHIE* in honor of his excellent matted photo (if that’s the right term) he used to make his case at the City Council meeting tonight. [quote]In the absence of a Council majority that fails to take, as its prime directive, the responsibility to look out for the interests of Davis voters, it is problematic whether it is a good idea to eliminate the concept of having a city manager who is also our “neighbor”. [/quote] I don’t have a strong opinion one way or the other on whether it’s a problem for the city manager to reside outside of town**. I can understand those who say that the city manager should be a city resident so that, insofar as the city has good or bad policies in place, they affect him directly; and if those policies are unwise or unworkable, as a resident he will be more amenable to changing them. On the other hand, if the city manager is not a city resident, he avoids some conflict of interest that could arise with regard to developments which affect his neighorhood. No policies or enforcement actions can be said to be motivated by his personal interests if he does not live here or own Davis property. Nonetheless, when Bill was originally promoted to City Manager, it was expected he would move here, and I understand those who got upset about that unmet expectation.
*Means high praise for those of you who don’t read The Lexicon Artist.
** Save if he happens to be far out of town on vacation or at some conference, Bill lives close enough to Davis to get back to town in the case of an emergency. And if need be, Paul Navazio (the assistant city manager) lives here and he could take care of any interim decisions. Ultimately, of course, if it is a law enforcement emergency, the police chief would be in charge; and if it is fire or hazardous waste, the fire chief would be in charge.
” Both these two women and many city employees get money (150 dollars per hour) to work on new developments.
How did you arrive at that figure of $150/hour? Do you have a source you can reveal for that information? “
Rich, why don’t you call up the city of davis and ask them what their policy on paying city employees extra money to process and work on new construction projects.
call them up and find out for yourself. it’s true… so true
[quote]Rich, why don’t you call up the city of davis and ask them what their policy on paying city employees extra money to process and work on new construction projects. [/quote] Melanie, all I asked was for your source. Who told you this? Where in the public record is your documentation which proves that the two women you mentioned specifically are making $150/hour for “work on new construction projects.” I have all of the payroll information from the city and nowhere have I ever seen anything which corroborates your charges. Thus, I asked you the question for your source. I’ll believe you when you show me where you got this information.