HomeMy WebLinkAbout23 - NB-1 - Smart and Final Noise Study - 8/3/20211
CITY COUNCIL AGENDA REPORT
MEETING DATE: AUGUST 3, 2021 ITEM NUMBER: NB-1
SUBJECT: SMART AND FINAL NOISE STUDY
DATE: JULY 21, 2021
FROM: ECONOMIC AND DEVELOPMENT SERVICES DEPARTMENT/
COMMUNITY IMPROVEMENT DIVISION
PRESENTATION BY: FIDEL GAMBOA, COMMUNITY IMPROVEMENT DIVISION
MANAGER
FOR FURTHER INFORMATION
CONTACT:
FIDEL GAMBOA (714) 754-5625
fidel.gamboa@costamesaca.gov
RECOMMENDATION:
Staff recommends that the City Council receive and file the noise study report prepared by
Sound Media Fusion related to alleged concerns for noise ordinance violations from
business operations at Smart & Final, located at 707 W. 19th St.
BACKGROUND:
Over the course of the past two calendar years, Mr. Steven Chan, a resident with property
adjoining Smart & Final to the rear of the commercial property has submitted
approximately 50 complaints to the Costa Mesa Police Department (CMPD) as well as
approximately 15 complaints to Code Enforcement through the online MyCostaMesa
portal. Other email communications to various City staff members have also been received
over the years. In general, Mr. Chan’s complaint is that employee activities associated with
daily operations and talking at the Smart & Final store location disturb the peace and quiet
of the adjacent residents both inside and outside of their homes.
CMPD have responded to these complaints and visited the site and did not find any
significant or unreasonable activity onsite that was outside of what one would consider
normal commercial center operations or that otherwise constituted unusual or
unreasonable noise. No citations have been issued by CMPD.
Code enforcement staff have also responded with additional site visits and observed
only typical commercial operations that in their professional opinion did not constitute an
unusual or unreasonable noise. On occasion, staff has responded to other complaints
such as trash accumulation and use of a temporary outdoor ice storage truck without
permits. Using the normal code enforcement protocol, Smart & Final was notified and
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these issues were remedied quickly without rising to the level for the issuance of civil
citations.
More recently, during the December 1, 2020 City Council meeting, Mr. Chan showed a
home video of Smart & Final employees talking and using profanity while loading
merchandise near the delivery roll-up door located at the rear of the store property. Mr.
Chan has shown the same video several times at other City Council and Planning
Commission meetings. During the December 1, 2020 City Council meeting, Mr. Chan also
introduced two area residents providing similar public comments, which included concerns
over trucks idling and making noise at 4 a.m. Mr. Chan has also indicated dissatisfaction
with the City’s responses, due to the racial make-up of the minority neighborhood.
Following the December 1, 2020 City Council meeting, Code Enforcement staff embarked
on an investigation of noise activity at Smart & Final, including community outreach, site
visits and hundreds of individual sound readings. In addition, an acoustic expert was
retained to conduct an independent study.
Smart & Final Permitting History
Smart & Final began operations at the site in the 1990’s, taking over the site from Stater
Brothers. The site is zoned C-1. Smart & Final is operating as a grocery store, which is an
allowed use within that zone and does not require a Conditional Use Permit or other
discretionary permit. As such, there are no City-required conditions of approval. The
business is operating under a license to sell alcohol under the State Department of
Alcoholic Beverages Control (ABC). The City has limited authority with regard to ABC
licenses but is notified by ABC when there is a proposal to modify an ABC license within
the City.
The City received a notification on April 30, 2018 of a modification to Smart & Final’s
ABC license conditions. The request included a modification to the hours during which
alcohol could be sold. The condition (originally approved by ABC in 1995 and in 2007)
allowed alcohol sales from 6:00 a.m. to 7:00 p.m.; the modification request was to
extend the hours to allow sales from 6:00 a.m. to 11:00 p.m. consistent with the store’s
hours of operation.
However, City staff were aware of Mr. Chan’s complaints regarding noise originating
from the rear of the property. At that time, his complaints primarily related to
loading/unloading at late hours. In an attempt to respond to those complaints and assist
with the alleged issue of nighttime deliveries, the City leveraged its limited authority and
sent a letter to ABC objecting to the extended sales hours pending additional conditions.
After a series of discussions with both Smart & Final and ABC, staff agreed to withdraw
the objection and in exchange ABC added a condition requiring all doors at the rear of
the property to remain shut after 8:00 p.m. Mr. Chan later communicated to the City that
this change may have reduced nighttime noise, but caused more noise during the day.
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Mr. Chan has stated in email correspondence that he has also submitted complaints to
ABC regarding Smart and Final’s violations of their liquor license. ABC has indicated
that they have not found any violations of the liquor license.
ANALYSIS:
Noise Standards and Protocols
Costa Mesa Municipal Code (CMMC) Chapter 13, Noise Control, states that the
purpose of noise control regulations is to “prohibit unnecessary, excessive and
annoying noises from all sources subject to its police power. At certain levels, noises
are detrimental to the health, comfort, safety, peace and enjoyment and welfare of the
citizenry and in the public interest shall be regulated and systematically proscribed”.
The CMMC identifies qualitative nuisance noise criteria as well as quantitative interior
and exterior noise criteria. These criteria apply to residential property and under certain
circumstances, churches, schools and hospitals.
Qualitative noise criteria are listed under CMMC Section 13-283. This section utilizes a
reasonable person standard and states:
“It is unlawful for any person to willfully make or continue, or cause to be made or
continued, any loud, unnecessary and unusual noise which disturbs the peace or quiet
of any neighborhood or which causes discomfort or annoyance to any reasonable
person of normal sensitiveness residing in the area, regardless of whether the noise
level exceeds the standards specified in section 13-280, Exterior noise standards, and
section 13-281...”
For example, a police officer may issue a misdemeanor citation for a violation of CMMC
13-283 to a motorist who is playing extremely loud music with the windows down while
driving on a small residential street at 2:00 A.M. on a Tuesday morning. In order to
issue a citation, the officer must determine that the noise that is the basis for the
issuance of the citation is noise that a reasonable person with normal sensitivities would
find uncomfortable or annoying. The same determination can be made by a code
enforcement officer.
Quantitative Noise Criteria
Quantitative noise criteria are listed under CMMC Section 13-280 (Exterior Noise
Standards) and 13-281 (Interior Noise Standards) and involve the measurement and
analysis of decibel (dB) noise readings.
Section 13-280 - Exterior Noise Criteria
dB Hours
55 dB 7 A.M. - 11 P.M.
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50 dB 11 P.M. – 7 A.M.
“(b) It is unlawful for any person at any location within the city to create any noise, or
to allow the creation of any noise on property owned, leased, occupied, or otherwise
controlled by such person, when the foregoing causes the noise level, when measured
on any other residential property, either within or outside the city, to exceed:
(1) The noise standard for a cumulative period of more than thirty (30) minutes in
any hour;
(2) The noise standard plus five (5) dB(A) for a cumulative period of more than
fifteen (15) minutes in any hour;
(3) The noise standard plus ten (10) dB(A) for a cumulative period of more than
five (5) minutes in any hour;
(4) The noise standard plus fifteen (15) dB(A) for a cumulative period of more
than one (1) minute in any hour; or
(5) The noise standard plus twenty (20) dB(A) for any period of time.”
Section 13-281 - Interior Noise Criteria
dB Hours
55 dB 7 A.M. - 11 P.M.
45 dB 11 P.M. – 7 A.M.
“b) It is unlawful for any person at any location within the city to create any noise, or to
allow the creation of any noise on property owned, leased, occupied, or otherwise
controlled by such person, when the foregoing causes the noise level when measured
within any other dwelling unit on any residential property, either within or outside the
city, to exceed:
(1) The interior noise standard for a cumulative period of more than five (5)
minutes in any hour;
(2) The interior noise standard plus five (5) dB(A) for a cumulative period of more
than one (1) minute in any hour; or
(3) The interior noise standard plus ten (10) dB(A) for any period of time.”
Both of these sections are subject to the following measurement protocols under CMMC
Section 13-284 (Noise level measurement).
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a) Any noise level measurement shall be performed using a sound level meter
meeting American National Standard Institute’s Standard S1.4-1971 for Type
1 or Type 2 sound level meters or an instrument and the associated recording
and analyzing equipment which will provide equivalent data.
b) Exterior measurements: The location selected for measuring exterior noise
levels shall be at any point on the affected property.
c) Interior measurements: Interior noise measurements shall be made within the
affected dwelling unit. The measurement shall be made at a point at least four
(4) feet from the wall, ceiling, or floor nearest the alleged offensive noise
source and may be made with the windows of the affected unit open.
Community Improvement Investigation
Following the December 1, 2020 City Council meeting, Mr. Chan submitted additional
correspondence and video footage. In much of Mr. Chan’s submitted correspondence,
video footage was shared with staff, which was superimposed with an unknown type of
sound measuring device stating that the operational activities and behaviors were in
violation of the City’s quantitative noise standards.
In order to investigate these allegations, City code enforcement staff conducted
unannounced sound measurements of Smart & Final’s operations utilizing a handheld
noise meter. Staff regularly use handheld noise measurement devices (as opposed to
more sophisticated noise measurement equipment referenced by the Municipal Code).
Though less precise, handheld noise measurement devices are a practical way for field
staff to obtain decibel readings that assist staff in determining whether there may be a
noise violation and/or whether additional more detailed noise readings are needed.
A series of noise measurements were conducted at Smart & Final over the course of three
days on December 8, 9, and 10, 2020. Staff conducted the measurements during three
different shifts throughout the day. The first shift was in the early morning starting at 4:00
a.m., the second shift was mid-morning starting at 8:00 a.m. and the third shift was after
12 noon. The measurements were conducted from the adjacent commercial property west
of Smart & Final’s property line and up against the rear of Mr. Chan’s property to the
south.
Staff took 418 individual exterior decibel readings. Out of the approximately 418
documented measurements, staff did not observe exceedances of the noise ordinance
attributable to Smart & Final operations, with only seven occurrences of noise level
“spikes” all of which appeared to be related to ambient noise activity such as street traffic
and/or an instance of airplane overflight noise. Staff also did not observe truck traffic
during their 4:00 a.m. shift.
Staff determined that during the course of their measurements no evidence was found that
Smart & Final’s operational activities constituted a violation of the City’s exterior noise
standards.
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Community Outreach
In addition to sound measurements, on January 26, 2021 a bilingual code enforcement
officer conducted a windshield survey of the surrounding neighborhood and individually
visited approximately 20 properties within 200 feet of the Smart & Final’s property. The
purpose for the visit was to outreach to the community and ask if Smart & Final’s
neighbors had any specific concerns regarding noise. Staff connected with residents of 11
neighboring properties. In general, most residents indicated concerns with general traffic
issues, limited parking, the effects of homelessness, trash, and other noises in the
neighborhood. One resident, other than Mr. Chan, mentioned Smart & Final as a concern.
One of the residents that originally spoke at the December 1, 2020 City Council meeting
allowed staff to take exterior measurements on the property (access was not granted for
interior measurements). Noise readings at that time did not indicate a violation. In addition,
staff was granted permission to conduct a noise measurement on the property directly
adjacent to Smart & Final’s rear delivery roll-up door, which is seemingly the location that
would be the most affected by noise coming from Smart & Final’s loading area. Staff
conducted both interior and exterior readings at approximately 9:00 a.m. and found that
noise measurements were below standards with no violation of the noise ordinance
observed. In speaking with the homeowner where the sound measurements were
recorded, the owner stated that Smart & Final was not a noise issue to him and that past
issues had typically been resolved with a conversation with Smart & Final.
Communication with Smart & Final
Following the December 1, 2020 City Council meeting, staff communicated neighbor
concerns to Smart & Final and discussed how they could improve and be better neighbors
to the residential community. Staff had a series of phone calls, onsite visits with store
management and online conferencing meetings. Meetings occurred on December 16,
2020 and January 5, 2021 with Development Services staff, Police personnel, and Smart
& Final corporate management (including the Store Manager and Regional Director).
As a result of these communications, Smart & Final indicated they spoke with onsite
employees as well as their daily vendors regarding minimizing noise. This included
addressing the language depicted in Mr. Chan’s video with staff. The Smart & Final
Regional Director gave a brief presentation to the City Council at the March 2, 2021
meeting as to the store’s efforts to address resident comments.
In addition, staff arranged with Smart & Final to observe the onsite store loading operation
in the rear area up against the residential properties. The intent was to determine if there
was any specific activity observed as unreasonable that could be a contributor to a noise
violation. On January 27, 2021, starting at 6:00 a.m. through the early afternoon, staff
conducted the site visit and observed no specific unreasonable activity that would
constitute a violation of the noise ordinance. Staff did note and discussed with the Smart
& Final store manager that some of the carts utilized for the transport of product from
trucks to the roll up door were noisy (i.e. noise was generated when wheels rolled on the
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asphalt pavement) and should be looked at for options and maintenance. In addition, staff
observed that a portion of the rear exterior property appeared to be utilized as storage for
merchandise. Loading and unloading at a commercial business is a normal and expected
part of business operations. However, outdoor storage at a business requires a Minor
Conditional Use Permit subject to approval by the City’s Zoning Administrator. Following
the conclusion of the noise investigation, staff’s observations regarding outdoor storage
and loading will be addressed with Smart & Final’s corporate management.
Sound Media Fusion Noise Study Report Findings
Although staff’s initial measurements did not demonstrate a violation of the City’s noise
ordinance, staff opted to retain a noise expert to conduct an independent investigation and
obtain more precise noise readings. The City contracted the services of Sound Media
Fusion, led by Mr. Gary Hardesty, a sound engineer and noise expert to conduct a sound
study of the Smart & Final daily operations for a not-to-exceed cost of $15,000.
Mr. Hardesty conducted the sound study on three separate days, April 5, April 9, and April
10, 2021. Each day the study was to be conducted from 4:00 a.m. to 4:00 p.m. The City
obtained permission from the owner of the Strut Bar and Mr. Hardesty was instructed to
setup up his equipment as close to Mr. Chan’s property line as possible abutting the
commercial properties. In addition, he was asked to conduct whatever measurements he
deemed necessary to study Smart & Final’s daily operations.
To address Mr. Chan’s concerns as well as those expressed by two other residents from
the December 1, 2020 City Council meeting in this study, our bilingual staff visited and
attempted to make contact with these residents at their homes. The specific purpose for
the visit(s) was to obtain permission and schedule part of the sound study from locations
on the “receiving” residential property as referenced by the Municipal Code. Staff’s first
attempt was on March 25, 2021, prior to the first scheduled measurements. No one was
onsite, but a letter was posted on the three subject properties. A copy of the letter was
also mailed. Staff did not receive any return communication in this attempt. A second
attempt was made on April 5, 2021, which resulted in no response but did elicit an email
from Mr. Chan to staff later that day.
In the communication, Mr. Chan granted access to the property line as long as that access
was made from the adjacent commercial property, essentially denying staff access to his
property for noise measurement purposes. Staff responded and explained further what
was required as referenced by the code and asked him to reply no later than April 8, 2021,
but access was not granted.
On April 24, 2021, Mr. Hardesty provided the completed noise report. The report
summarizes noise characteristics, how sound is measured, the City’s noise standards, and
the reports findings with detailed measurement data provided as an attachment to the
report. In general, the report describes the area as “very quiet” given its proximity to busy
streets and businesses. The report finds that the area always met noise standard
compliance as described on handwritten Page 23 of Attachment 1, stating that occasional
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spikes in noise were noted which were primarily related to occurrences like airplanes,
garbage trucks, and loud cars on adjacent streets. His observations and findings are
similar to Code staff’s initial findings from their less precise instrumentation and noise
measurements conducted in early December 2020.
Please refer to the attached noise findings report.
ALTERNATIVES CONSIDERED:
The noise report is informational.
FISCAL REVIEW:
The noise report is informational. There are no fiscal impacts anticipated with this
agenda item.
LEGAL REVIEW:
The City Attorney’s Office has reviewed and approved this staff report as to form.
COUNCIL GOALS AND PRIORITIES:
Not Applicable.
CONCLUSION:
Staff recommends that the City Council receive and file the noise study report prepared
by Sound Media Fusion evaluating potential violations of the City’s noise standards at
Smart & Final, located at 707 W. 19th St. Based on staff observations and the
consultant noise report, there is no evidence of noise ordinance violations. Staff intends
to close the code enforcement case(s) regarding noise violations at Smart & Final, but
will continue to follow up with Smart & Final to implement good neighbor practices and
to operate outdoor loading in conformance with existing Code provisions.
_________________________________ _________________________________
FIDEL GAMBOA JENNIFER LE
Community Improvement Manager Director of Economic and Development
Services
________________________________ _________________________________
CAROL MOLINA KIMBERLY HALL BARLOW
Finance Director City Attorney
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Attachment: 1. Noise Study City of Costa Mesa Smart and Final related noise in residential
areas – Sound Media Fusion, Gary Hardesty, and April 24, 2021