HomeMy WebLinkAbout25 - NB-1 - Public Comment - 8/3/2021City of Costa Mesa
Councilmembers % City Clerk
Re: Issues With Public Hearing "Smart & Final Noise Study" August 3, 2021(NB-1)
Members:
Please note the following issues on this agenda item before you tonight:
1) Counter recommendation: The city council notice the study and staff report
inconsistencies that do not solve the problem, file this as a $15,000 gold plated toilet
seat, and take 'reasonable person' responsible action after evaluating the standards as
defined in CMMC 13-283 to bring Smart & Final into compliance with CMMC 13-280
2) Correct the staff report to include the full text of CMMC 13-283 without underlines,
Clarify 'normal sensitivities' in the ordinance to refer to a person 'not hard of hearing', but
rather having 'normal hearing; and provide the following data for the sound related
factors enumerated in CMMC 13-283(a)-(I):
31-280(a) very loud;
31-280(b) unusual;
31-280(c) unnatural;
31-280(e) 10 feet or less to bedrooms;
31-280(i) 13 hours;
31-2800) constant & random;
Define the 'reasonable person' standard as a term of art, particularly noting the legal
characterization of a 'reasonable person' is NOT an average person or a typical person,
and has a duty to behave responsibly in similar circumstances.
3) On page 2, the referenced "modification to Smart & Final's ABC license conditions" was
precipitated by the September 2017 discovery that Smart & Final was illegally selling
alcohol in dozens of cities throughout California in dis-advantaged neighborhoods where
the liquor licenses were conditioned to CA CCR Rule 61.4 (proximity of residences.) This
near -decade long scheme featured store locations with outsize alcohol product sales
footprints, and traditional indoor backrooms scaled up to 3/3smaller than industry
standards. The lack of indoor backroom square footage coupled with increased booze
display square footage moved the backroom (warehouse) activities outdoors in an
alley -sized space behind the store. Five residences abut this alley.
4) Acquiescence by one resident to noncompliance is not relevant to the measurements
and cannot strip another of the protections of the Noise or Nuisance ordinances.
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5) The independence of the study is challenged. Mr. Hardesty claims he mitigated the bar
sound leakage next door to Smart & Final (now operating as Strut). The inaccuracy is
reflected by the years of complaints since he made that study nearly five years ago, the
ongoing recording and live streaming of low frequency bass from Strut Bar on Thursday
to Saturday nights in neighboring residential structures , and Councilmember Chavez'
statement in the July 20,2021 council hearing during councilmember comments that
Strut Bar will be implementing additional sound mitigation measures to deal with the
ongoing noise complaints. Mr. Hardesty is a hired gun to produce a desired conclusion,
and is biased.
6) The City's narrative does not include the 30 day log submitted to the city November 23,
2020. This 30 day log includes up to 14 continuous hours per day of audio and video of
the outdoor backroom activity that directly show the constant nature of non-compliance
activity over the course of thirty single days.
7) Correct the staff report to include the full text of CMMC 13-280, in particular the missing
parts of paragraph (a) which reads:
"in the event the alleged offensive noise consists entirely of impact noise,
simple tone noise, speech, music, or any combination thereof, each of the above
noise levels shall be reduced by five (5) dB(A).11
The complained -of noise consists of the noised defined in this sentence.
8) Blaming the site selection on Mr. Chan's refusal to grant access is disingenuous. The
city staff appears to have unfettered access to the rear of the store, and if the store were
in good faith attempting to resolve this, the measurements would be taken in their
operations.
9) Even if Mr. Chan granted access to Mr. Hardesty, that location would be inappropriate to
measure the sound spillage that takes place in properties 70, 140, and 210 feet to the
east.
10) The city did not disclose that Mr. Hardesty would be conducting the noise study. We did
not find out about Mr. Hardesty until this item was added to the city council agenda for
this meeting. Mr. Hardesty would have been denied entry when he showed up, based
upon his ongoing false claims of mitigating the sound of the Strut Bar building next door.
History has shown his efforts to be biased against this neighborhood.
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11) The conclusions of the study are challenged.
a) Mr. Hardesty's measurement between the Strut Bar position and Smart & Final's
razor wire topped fence is incorrect and the distance is closer to 90 feet than 70.
b) Mr. Hardesty generated measured values at a point 90 feet away from the noise
source. He used these values to compute against an incorrect standard - five (5)
decibels higher than 13-280 states.
c) Mr. Hardesty's conclusion of compliance is based on a distance which a
reasonable person in his profession would not make. if the distance were halved
directly in the direction of the sound sources, this would add 6 decibels to his
readings at that point. Repeating the halving again adds another 6db. Moving 70
feet closer adds 12 decibels to his readings, which is not in compliance with the
full ordinance language by far.
12) Notice was not given regarding the item to any residents negatively impacted by Smart
& Final, or the five property owners directly behind the Smart & Final building. There is
no staff report on this matter in Spanish and many of the victims are Latina.
13) This is not an accurate or fair characterization of the number of victims.
14) The characterization of noise generation is inaccurate in the extreme. Impact noises
occur over the entire range of the rear of the building, a distance of more than 200 feet.
(they are NOT concentrated at the rear roll up door.) and occur constantly for hours on
end during every mealtime, with only occasional lulls during shift changes.
15) The characterization of some residents as being "ok" with the noise from Smart & Final
is inappropriate, leaving out personal agendas and undefined hearing sensitivity levels of
these residents.
16) In it's normal operations, Smart & Final is operating as a public nuisance. The standard
is not operations while under observation. The city and Smart & Final colluded in the
scheduling of the sound study which allowed Smart & Final to manipulate staff behavior
to be more careful and quiet during the days of the study.
The noise study report prepared by Sound Media Fusion has been purposefully skewed to
come to a desired conclusion. The City has contrived the sound study in collusion with Smart &
Final , to justify the city's inaction in the face of Smart & Final's continued non-compliance with
CMMC Section 13-280. The Staff Report is biased and misleading in inappropriately
emphasizing the character of the victims, omitting sections of CMMC 13-283, and CMMC
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13-283 directly resulting in a 3-4X difference in measurable loudness, and cementing in writing
the unequal application of the law in the demographic in the Smart & Final 'blast zone'- the
CCR Rule 61.4 Residents behind the store.
The continued non-compliance by Smart & Final is the direct result of outdoor storage of
foodstuffs, and it yields a direct financial benefit to a) the city in the form of ill-gotten tax
revenues from goosed sales from predatory practices, and b) public sector employees via the
pension fund CALPERS which places pension fund moneys with Apollo Global Management,
the owner of Smart & Final. Public Sector regulators are not regulating the source of their
retirement money.
Submitted
Steve Chan
August 3, 2021
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