Neighbors Have Long Battled Friend of Mayor Pro Tem To Abate Noise From Montessori Day Care Center
However, what Mr. Saylor did not discuss was the ongoing problems that a specific group of neighbors have had with a specific facility whose noise and other problems has been anything but delightful.
As City Attorney Harriet writes:
“The general noise regulations depend on the land use zone the “receiving property” is in. For example, maximum noise levels in residential areas are generally limited to 55 dBA from 7 a.m. to 9 p.m. and 50 dBA from 9 p.m. to 7 a.m. 24.02.020. Most noise is measured at the property line, 24.02.030, but noise levels for certain types of uses, such as multi-family, are measured inside the receiving residence.”
Finally she requested specific direction from council on how to proceed.
“If the Council wishes to proceed with an exemption, staff would like direction on:
1. Does the exemption only apply to licensed schools, nursery schools and day care centers of more than 12 children with conditional use permits or to family and group day care as well?
2. Should the exemption include amplified noise?
3. Should the exemption be limited as to hours, or should the general hours of 7 am to 9 p.m. apply?”
All of this seems innocuous unless one is aware of the fully story. For years now, the residents of Cezanne Court have been fighting John Hillis, owner of the private for profit Montessori Country Day Care Center. As one of the neighbors described it to me, the problem is so bad that once school begins at 8:30 am, there is no possibility of resting in their own home. There is persistent noise throughout the day at levels approaching 90 dbs. Moreover there is trash and litter thrown throughout various adjacent properties.
In a letter to Mark Wood, Chief Building Official and City Manager Bill Emlen, in February of 2008, the neighbors write:
“John Hillis, by his refusal to meet with his neighbors for over 13 years despite our reasonable and courteous requests to meet via City mediation, by his refusal to respond to or even acknowledge the letters written to him by the Murphy, Hackett and Munro families in 2000 and 2001 where we offered, in writing, to build a wall between us, and by his obvious lack of concern for the effect he has and continues to have on his neighbor’s homes and lives, has left us with no choice but to ask for and pursue City support to bring his business into compliance and to be a good neighbor.
The City of Davis has been aware for 14 years that John Hillis’ business operation unreasonably interferes with the quiet use and enjoyment of neighboring private properties. This has been documented by a combination of letters, photographs, sound readings, and written complaints to the City from every homeowner (5) of every home (3) on Cezanne Court next to his business since 1994. Most importantly, in 2007, neighbors were required to pay for and provide irrefutable evidence to the City of Davis that John Hillis’ business is in violation of the City of Davis Noise Regulations. This evidence, the sound report of 30 July, 2007, states irrefutably that average noise levels while day care children are outside next to our homes is 70 dB, with levels up to 89/90 dB. This noise enters our homes with all windows closed. Per the noise regulations (24.02.020) signed into law by Mayor Ruth Asmundsen in July, 2005, we have never given John Hillis permission to make noise that can be heard inside our homes with our windows closed, or to generate up to 90 dB daily in our homes and on our properties.”
As they put it in numerous letters and communications:
“This is NOT about the children or “Davis mothers and their children”. This is about how Mr Hillis operates his private, for profit, business. It is about how he has laid out his operation, and how he generates up to 90 dB of daily noise IN NEIGHBOR’S PROPERTIES because of the way he has chosen to configure his play areas — not because of the children. Children play where they are instructed to play. The children’s safety and ability to learn are not dependent on Mr Hillis creating hazards (litter) and unacceptable noise in his neighborhood when there are very doable mitigations available as laid out clearly, in writing, in the Sound Report generated by a professional sound expert.”
In other words, their main argument is not that they have a problem with the children, they have a problem with the fact that Mr. Hillis over the period of fifteen years has refused to be a good neighbor and deal with problems, mitigate noise, prevent litter and other problems.
A letter to Ruth Asmundson in November 2006 clarifies the extent of the complaint:
“This morning for example, (Wed, Nov 8) as often occurs, the school released the children into their play yard by 8.35 am. The shrieking and screaming at this time and most of the day pierces our homes with all windows closed. The school does not even have the decency to abide by the one mediation agreement we all signed to not release the children before 8.45 am. It should be later. We can not imagine one home or family in Davis that would enjoy 70 shrieking and crying preschoolers a few feet from their bedroom and living rooms as early as 8.30 am every weekday morning, with no barrier or buffer, and only a dilapidated fence to protect us. The litter also continues.
In response to the City’s visit last year, and several suggestions that the sand pits be moved away from our fences and that buffers be put in place, the school has chosen to ignore all suggestions and in fact has increased the size of the sand pits right on our fence lines, and LAST WEEK alone added two loads of wood chips against the fence to hold all the children there on all wet days through the winter months.”
These would seem to be reasonable solutions, and yet it was ignored by the school and not enforced by the city.
The neighbors in detail describe the fact that Mr. Hillis commissioned a sound report a few years back that he thought would show he was in compliance of the noise ordinance. Instead of it exonerating him, it demonstrated that he was woefully in violation of the city’s noise ordinance. As a result he never had it released, but the neighbors having discovered the report completed, paid the $2500 themselves to have it released.
The sound report showed that noise levels consistently exceeded 80 to 90 decibels. Rather than children playing, the children would run outside, largely unsupervised, and literally scream for hours at a time.
In a letter to Mark Wood, the City’s Chief Building Official:
“Neighbors provided the Sound Report, written by a qualified noise consultant, to the City of Davis as requested. This Sound Report clearly states that Mr Hillis is in violation of the City of Davis Noise and Nuisance Ordinance by an extremely large margin. These noise levels are not border line, they are not once in a while. The noise levels are constant, every week day, and average 20 dB ABOVE the City limits, with many above 80 dB.
The sound consultant outlines the REQUIRED mitigations to bring the sound levels generated at the day care center to within the limits of the City of Davis Municipal Code at the adjacent homes (our homes). These required mitigations include the sound wall design. “
“As a neighbor I agreed to pay for my share of a structure between my property and Mr. Hillis’s business. It is because of his noise and litter violations that we need to build a sound wall to protect our homes and properties. As you are aware, the cost of this sound wall is significantly more than a standard fence. We will have to negotiate our responsibilities when Mr Hillis is clearly the cause of both the violations and the need for this sound wall. Neighbors over the years have spent thousands of dollars for sound reducing windows, insulation, and reconfiguring our back yards to protect and minimize the extreme negative consequences of having the City allow Mr Hillis operate his business in the manner he has done. Mr Hillis has, as you know, reconfigured his business layout over recent years to place more play areas and toys and a sand pit on our fence line, he has increased the sand pit after the City suggested he move it, and ignored all attempts by neighbors to simply meet with him to discuss our concerns.
Again, the Sound Report states clearly that the sound wall does not work unless all required mitigations are met. It is very important at this stage that all involved are aware of this very important and very clear statement in the Sound Report. I would not wish to have a sound wall built only to find that it makes little or no difference because Mr Hillis is allowed to operate as he currently does and is not required to reconfigure his play yard at the day care center as outlined in the Sound Report. We all agreed we would observe the mitigations provided by the sound expert.
Mark, the Sound Report states clearly and irrefutably that Mr Hillis is in violation of the City of Davis Noise and Nuisance Ordinance by an extremely large margin and that many of his noise levels are above 80 dB. The City Noise Permit says very clearly that under no circumstances shall any noise be above 80 dB in the City of Davis, even with a permit. If this were my property, or any other property or business in Davis, you would already have written a letter from the City of Davis per your Ordinance, giving the violator 30 days to bring the violation into compliance with City Code.”
As a result of the ongoing battle, the owner was finally forced to put up a sound wall. According to the neighbors the sound wall has relieved them from the visual blight and the littering but the noise has not been abated.
The neighbors also complain of frequent Friday night parties with amplified noise that exceeds 100 decibels.
The problem as the sound experts put it, is that simply having a sound wall will not solve the problem without other noise mitigation factors. A letter from May of 2007 lays out some of the recommendations. These recommendations include building a sound wall, moving the exit doors further from residents, utilizing a covered play area with sound deadening panels, create a new concrete surface that will reduce noise from wheeled toys, change the tires on these toys to soft rubber, cordon off the rear area near the fence, result the current patio, and change the rear exit doors to emergency use only. None of these solutions sound unreasonable and all would have solved the problem.
As Mark Wood writes in August of 2007 following that meeting:
“At a May meeting hosted by the City and attended by members of the City Council, City Manager, all of you, and myself progress was made toward resolution of the complaints filed against the Montessori Day Care. The complaints include excessive noise and debris, including toys and food items, being thrown over the property line fence by the children at the school.
Agreement was reached on the following points:
1. The property owners would hire a noise consultant to do a thorough written analysis and share it with all in attendance.
2. The noise consultant would specify a sound wall design between the school and the home owners that would mitigate the noise to the maximum extent that a sound wall could mitigate noise generated at the school.
3. The city would host a second meeting so that the home owners and the owner of the day care could come to an agreement on the replacement of the fence in a manner consistent with the recommendation of the noise consultant.
4. The cost of the fence would be split equally between the home owners and the owner of the day care.
5. After the fence was in place we would re-evaluate the noise levels to determine if other measures need to be taken.”
What has happened now is that John Hillis has pressured his friend on the council, Mayor Pro Tem Saylor to act on his behalf. The Mayor Pro Tem portrayed the neighbors as being unreasonable NIMBY’s in so many words for objecting to the joyful sounds of children. Meanwhile, the neighbors claim that Mr. Saylor has never responded to their letters.
Mayor Ruth Asmundson has. She surveyed the site and said “that’s shocking, no home in Davis should have to put up with that.” Later however, she has actually threatened the neighbors to stop complaining and to leave John Hillis alone.
What is quite clear as the string of correspondence illustrates, this problem would never have lasted so long without the lack of action from the city. None of these neighbors have a problem with the school or with children (despite the portrayal by the Mayor Pro Tem last week). Their problem was strictly how the owner has neglected to take basic steps to mitigate noise.
“The issue is entirely about the way the Montessori day care business is currently operated, as well as incompatibility of the design of the current building (the doors, the overhang, the patio) and the perimeter fence to accommodate that business in a residential neighborhood.”
So now after years of inaction by the owner, Mayor Pro Tem Don Saylor who has to this point refused to even meet with the neighbors, has suddenly put his own item on the agenda and now a week later it has been brought back as a full item.
The Vanguard is appalled that the city has allowed this matter to go on as long as it has. It is even more appalled that after a great deal of work by the neighbors and city staff to resolve this matter in a way that is acceptable to the neighbors and the facility, the city council led by Mayor Pro Tem Saylor would step in on behalf of the owner and attempt to undermine their efforts by exempting the facility.
As they have stated numerous times this is not an issue about children, it is an issue about the owner taking responsibility and mitigating the noise problems that have plagued these neighbors for a long time.
The owners were actually taken to small claims court by the neighbors due to the persistent problems of litter and the hazards that that particular trash presented to the neighbors which included emergency room visits as the result of lawn mowing accidents. The owners had to pay a small judgment in that matter.
The bottom line here is that it seems the city needs to step up and do the right thing by resolving this problem, enforcing the laws on the books, rather than exempt the facility and make a mockery of the neighbors ongoing efforts to simply live in their homes without persistent noise. That does not seem unreasonable in this case.
—David M. Greenwald reporting