HomeMy WebLinkAboutNew Bus. #4 12-04-89 Nicholas/W_ATE: :NOVEMBER 20~ 19
TO:
FROM:
SUBJECT:
Inter- Corn
'APPEOVED STAFF RECOMMENDATION'
WILLIAM A. HUTTON, CITY MAN&~ER ~'
COMMUNITY DEVELOPMENT DEPARTMENT~ ~
zc oz, s ..
RECOMMENDATION
Receive and file.
BACK~ROUND
At the City Council meeting on November 6th, Mr. Nicholas, a
resident of'190 Centennial Way, #13, complained about noise/high
-pitched vibration across the street from his residence at Western
Bagel. Western Bagel is located at 506 East First Street in Larwin
Square.
In response %o- the alleged code violations, the Community
Development Department and Western Bagel have taken numerous 'stePs
over the past few months in an attempt to resolve Mr. Nicholas'
complaints (attached is a chronology of major events on this
matter).
Unfortunately, at this time, there exists no documented violation
of City ordinance and nothing which would enable the City to
require facility corrections by Western Bagel. However, even with
no documented violations of City ordinance representatives of
Western Bagel have been extremely cooperative and have.'taken
numerous conciliatory steps to modify their operations in an'effort
to address Mr. Nicholas' concerns (see attached correspondence).
Staff believes at this time that Western Bagel complies with City
ordinances and has done everything possible to satisfy Mr.
Nicholas. As always, staff will continue to work with complaints
to document actual violations of City ordinance, but will not
proceed with enforcement actions where no violations are validated.
Christine A. Shingle~-,
DirectOr of Community' Development
CAS:kbc
CHRONOLOGY OF MAJOR EVENTS
COMPLAINTS ON WESTERN BAGEL
JUly 31, 1989
The City received an anonymous complaint of an
alleged noise problem at Western Bagel. While
it is not City policy to respond to anonymous
complaints, staff did investigate the situation
and found no immediate problem.
Augllst 9, 1999
Beth Schoemann, Associate Planner, sent a
letter to Western Bagel indicating .that a
complaint had been received regarding' an'
alleged noise source in the early hours in the
morning at their store and asking for'their
assistance in responding to complaint.
August 15, 1989
Eric Dahl of Western Bagel responded to the
City's August 8th request by indicating that
delivery times had been changed, the delivery
location during the night hours had been
relocated from the rear of the building to the
front of the building, and the air compreSs°rs
and other roof top equipment were checked for
excessive noise levels, serviced and. were
operating properly.
september 5, 1989
Mr. Dahl did indicate that they were receiving
numerous calls directly from the complainant.
The complainant again anonymously called and'
was still not satisfied with this effort and
requested that a noise test be performed.
Beth contacted Mr. Elwyn Brickson, Noise
Specialist for the County of Orange, to request
that a noise test be performed. Mr. Brickson
indicated that he needs a specific name and
address of the complainant prior to his work.
He also indicated that he would be out of the
office for two weeks and would conduct the test
when he returned.
.
September 22, 1989 ' ~.-
(Approximately) Mr. Nicholas finally identified his .name and
address. Mr. Brickson conducted the noise test
at Western Bagel using a Sound Level Meter
meeting the American National Standard
' Institute's standard for sound level meters.
The results of this test did not indicate'a
violation of the 'City's Noise Ordinance.
Commun~l'~ Deve~o~me~i De9ar.~me~i.
City Council Report
western Bagel
November 20, 1989
Page 3 '~
Mr. Brickson even left the equipment for Mr.
Nicholas to use for approximately a week to'do
his own reports since the alleged time is in
the early hours of the morning (since the
complainant representedthat the noise did not'~.
occur every night, it would be difficult to
come every night).
October 24, 1989
Mr. Nicholas was still, not satisfied with the
efforts of staff nor satisfied with the results
of the tests performed. He indicated that
there was a strong vibration now coming from
the store. Mr. Nicholas also contacted Mr.
Huston's office at least four times on this
date.
Sta2f made a site visit later that afternoon.
and was unable to identify any excessive noise'
source or any hint of a vibration coming from
any of the tenants on the backside of-Larwin'~?~
Square during the day hours. ' ......
Mr. Brickson with the County was also.contacted'
regarding information on how to measure for
vibrations. It was indicated that their
offices do not have any equipment to monitor
vibrations, nor does the City have any
Ordinance from which to monitor and regulate
vibrations.
October 27, 1989
(approximately) .
Mr. Huston spoke directly to Mr. NiCholas and
indicated that the City had done everything
possible but no violations were apparent on the
site.
·
November 1, 1989 Mr. Nicholas, between the Community Development
Department and City Manager' s office, called
the City six times regarding the subject
matter.
November 2, 3, 1989 The City Community Development Department
attempted to contact Mr. Nicholas twice. "'.'?-:~
. .
.
'
Community Development. Departme~nt
City Council Report
Western Bagel
November 20, 1989
Page 4
~ovem]:)e: 6, 2989
Mr. Nicholas contacted'Chris Shingleton on the
phone about him not being able to sleep on
Friday and Saturday night because of faulty
roof top mechanical equipment at Western Bagel.
Chris Shingleton and Beth Schoemann met for
approximately 45 minutes with Mr. Nicholas.
Mr. Nicholas represented that this matter had
been a two year problem but that the last.three
days were the worst. He represented that
Western Bagel had let him up on their roof and
concurred that their equipment was' faulty.
Staff told Mr. Nicholas that there were
documented violations of City ordinance and
asked him if he would permit placement of more
complex noise monitoring equipment in his unit
if it could be made available by the County.
Mr. Nicholas said he would thin~ about it and
get back to the City. He also indicated his
objective was to shut Western Bagel down since
they did not belong at their, location.
Chris Shingleton contacted Dennis the Manager
at Western Bagel. Dennis indicated that they
felt they were being responsive to Mr. Nicholas
but did not believe there was a problem with
their equipment. They are, howeVer, examining
the potential for modifying a vent but he needs
to talk to the company about that. He also
complained that Mr. Nicholas was calling him
and Eric Dahlan with Western Bagel at their
homes in the middle of the night on numerous
occasions.
November?, 1989 Dennis of Western Bagel return the City's call
. and indicated they were working on the vent but
the elbow might need to be custom made. He
wanted to assure the City that although they
were not in violation of City Code they were
good neighbors. _
~0vember 8, 1989 Eric' Dahl of Western Bagel called and' was
concerned about City Council' review on November
20, 1989 of Mr, Nicholas' complaint.
-"'i.':'.,.:.-
·· : .
, .. " ' " '. ': '.
~':" '"~"'" CommUnity` Development:'D'epar'tmen:t~
City COuncil R. eport
Western Bagel,
November 20, 1989
Page 5 ~ /
November 9, 1989
November'15,
,! 9~89
He committed to provide a letter identifying
the steps Western Bagel has taken to date to
address Mr. Nicholas' concerns.
Mr. Benedict from the CoUnty returned City's
call and verified that more complex noise
monitoring equipment could be placed in Mr.
Nicholas' residence if he would call them to
set up an appointment, he agreed to leave the
equipment for 48 hours. He also stated that
Mr. Nicholas had been calling and harassing
their office.
Staff contacted Mr. Nicholas and asked if he
would agree to placement of noise equipment in
his unit. He responded that he would think'~
about it and agreed to contact'the COuntY for
an appointment should he desire to proceed.'
-, .
Mr. Benedict with the County Contacted'.by' ·
staff, staff unable to verify that Mr.~..
Nicholas had requested an aPPointment to Place·
noise equipment. ,. "~
· ..
·
78145EPULVEDA BOULEVARD · VANNUYS. CAgI405 · (818) 786.5847 · (213) 873-46'3~4..
-o
November Ii. -i-~
, .· ..... ,.~:; .
?Ir. Houston STEVE USTIN.
C i"t y of
300 Centennial :~a'¢
Tus't zn Cai i lorn z a 02680
RE: BoD N~cho]as"
Disturbance Comp] al nts
Houston
?h!s ietter is in resoonse to numerous in~.uiries b? the C_ltv ..
of iustin into comD]alnts filed Dy Bob Nicholas
alleged ioud and intolerable noises. ...' _..
~or the ~as~ 4~ years. Western Bage] has DrovioeO ouaiitv . ~"
~roducts and-.se~vJces to ~JJ o~ ~8 cu~ome~,
immortance i~S the co~itment that Western Ba~el has made "t'O
· - . :.: ..,
ail of the communities we serve. In kee~na '~ith that-
comitment, we feel' that Westech Basel has been bendino over - -' .... %".'..
backwards fo~ the ~ast three years in o~der to satisfy
~.,~,
unfounded and misdirected complaints made by Bob Nicholas-.
:%.: '.
.
Western Bagel k.as vo!untari!v done the ¢o]]o%,in~: ,'
-...-
i. Prohib:~ nJoht emDioyees from ~arKino ~:here they -
,' .
¢. ..=
are de.s;~nated to D.a¢k since Hr. Nicholas.doesn,'t
want to hear the car doors st am'.
, .
2. Chan~ec our de i i very scheduie of products, coming
to the bakery to satisfy Mr. ' '""'"'
,, ~....:~;~ .? ~'~
3 Loa~ cue ',:hote~ale del iverv vans th'rough %ne~-'f,~.on'-t'?¥~'.~?~-~?¥;(:~":.~;t'..
o: the store :nsteac of ~he back. Der Hr. N~choi..as'. : .
' -_; · . ~' '"'
· ..
} . '
~, ChangeG our ~¢hoiesaie bakino time in ~es~onse to '. :-. '.'::'"
Hr, Nicholas-=. s comulaint that ~¢e ~¢ere makino noise-
wh~ie ba~(inO. ?radit[onal ;v, ai ~ of our other "" '
bakeries bake straioht thr'ouoh the n~oht in c'-oer
to ~ive the customer the ~¢eshest Doss[Die ~roduct.,' ..'.
We' now aa~e the evenina before. . '.,. ".'.:.;
., . . . . ,
5. At our e:<~ense, we contracted ,~th all TemDec.a~uces ..
· ' .
. Control !ed inc. to survey a~l ot our e~u~Dment and
' - . ' : .~' :. ..:-..;4,, '. ,..¥,.,~.::.",'",':--~4.?:~?~
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,' . .-' ' ' .; ,'. '~;,":'.'~
78
SEPULVEDA BOULEVARD · VAN NUYS. CA 91405 · (818) 786-5e47 · ¢213)'873:;4:634
DAVID USTIN. CHAIRMAN
STEVE USTIN; PRESIDENT
.
.j
·
·
Env
fac
Ors to De sure that %va %Ceca ooe'-a.tina'at oF
ow no,mai noise ieve]s, in a~Oition, the
ironmental Health DeDartment insDected our
i]itv and found that our ecuimment was oDeDat~no
] be]o~; .9. cceDted ]eveis. - -
Mr. !",~icho]as's latest ~'eauest is fc,,~ us to chanae
the all, tact ion of our exhaust ffan dischaDqe, it
wi il be a use]ess and cost],; exerclse, but %,e %,,i1 l
do it if it %.~il ] StOD him fFom cai i in~ ou~ manaaecs
S~,nce ail of~ ~'he dlffe~ent city ce.~actments that '~e have
correspcndecj '~:it.h aqree that Western Ba_oe] has Cone
eve~-yth[ng possible--to satisfy [','r. Nicholas. we now fee]
that Mr. Nicholas has persisted to the point of harassment.
there
eleviate
~s anyth~nc eise that you fee] ;.;e can do to
th~s annoy~nc situation, please contaci:: us.
Hopefuilv. ~his issue will be cesolved at this .iuncture
before %;e =re fcrced tc turn the matter over to cur
attocnevs.
Sincerely.
'Er i k Dab ]
Director Of Retail
Operat ions
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i.:.::.
Date: 12/4/89
To:
Tustin City Council
Tustin California 92680
From: Robert H. Nicholas
Resident of Tustin for 20 years
Dear Council Members:
The undersigned resident of our city of Tustin hereby proposes to implement the
following "sleep ordinance":
Sleep Ordinance
"When machinery or equipment used in a business becomes a
nuisance due to noises or vibrations created and that
nuisance disturbs the sleep of residents and said business
is within 500 feet of a residential bedroom then such
business shall not operate during the sleep hours of 11 p.m.
and 7 a.m."
As you know that for the past 10-20 years or more, the past and current city
management and/or city staff has issued and/or caused to be issued operating
business licenses to industrial type businesses and/or to commercial type
businesses in the same proximity of within 200 feet or less of residential
areas and when said operating businesses do in fact operate during the night
and some do cause disturbances and/or noise and/or vibrations nuisances to a
level that now current residents cannot enjoy a good night's sleep or go
through life with poor quality sleep and/or no sleep at all.
It is imperative that current City Council members investigate this crucial
problem that was handed down to current residents of Tustin by previous, as
well as current, city staff responsible for reviewing business applications and
approval of same as to zoning and useage.
Your prompt attention is being requested in this regard as for every day you
delay your action against this type of nuisance your citizens will go again
with one more night of poor sleep or no sleep at all.
To quote the Penal Code:
Section 415' "Any o~ the ~ollowing persons shall be punisi~ed by
imprisonment in the county jail ~or a period of not
more than 90 days, a fine o~ not more than four
hundred dollars ($400), or both such imprisonment and
~ine:" If .....
Sub-Section (2)' "Any person who maliciously and willfully disturbs
another person by loud and unreasonable noise."
It is my contention that the proposed new ordinance shall not be necessarily
measured in decibels and/or any other noise level machine but rather judged by
an Arbitration Committee aside from City Staf~ which will investigate and rule
and report directly to the City Council.
Respectfully Submitted
Nichols
"Post~'Office Box 415
Tustin California 92681
714/838-8117
Copy: City Manager
N411
Agenda for Council Meeting 12/4/89
Four items to be covered:
1. Copy of the staff report prepared for last council meeting (11/20/89)
reached me the day after on 11/21/89 and conversely had no opportunity to
comment on its misrepresentation of facts and omission of facts and
pertinent data. I cannot see for the life of me how the City Council can
render good judgment calls from such inaccurate/inadequate report. I think
it to be an insult to intelligence and demand it to be rewritten. I cannot
help wonder whether city staff feel they can run the city by preparing and
presenting such slanted report ..... I hereby deny categorically said
report as it is written and request my allegations be investigated. My
version of said report is herewith enclosed.
2. The City Council at the council meeting of 11/20/89 told city stair to
prepare and mail a certain letter to Western Bagel conveying my added
·
requests to alleviate their continued nuisance problem. I have not
received a copy of said letter as of 11-28-89 so I must conclude that it
has not yet been done as you had requested.
3. I do not know what City Council plans to do about the continued vibration
nuisance emanating from Western Bagel at night and all night long. My wile
and I continue to be disturbed and annoyed with such nuisance vibration to
a point that we cannot sleep or are not sleeping/resting good ..... Since
your last council meeting of 11/20/89 my wife and I must have lost at least
20 to 30% of our "entitled sleep".
Christine Shinqleton called on 11/8/89 at 4:15 p.m. advising me that a
High/Low Frequency Noise Unit can be placed at my patio to record data and
its findings be used as an information tool - also she mentioned it to be
at my cost of $175.00 per 48 hours. I object to paying for any fees as I
feel that the Health Department is there to provide me with health
standards and the city is here to protect me ~rom undue harassments as
caused by issuing bl6nder licenses with and by staff that may or may not
even live in our city .....
Further I take strong objection when certain city staff and certain City
Council members express their views by saying "only if Western Bagel wants
to make Mr, Nicholas' recommended changes" or "Western Bagel had done
enough to please Mr, Nicholas",,, I say to all - that's nonsense, Let's
not be so negative to a problem that your city staff had created for me by
issuing the right license for the wrong zoning and also it is not what
Western Bagel has done for Mr, Nicholas as opposed to what. Mr. Nicholas is
doing to correct Western Bagel's continued nuisance being imposed upon
residents at night and all night long ..... No business should operate at
night when its night operation is affecting and disturbing the sleep of
others,., So let's not look at the cart before the horse,
4. I am proposing a "Sleep Ordinance" and recommend its adoption to shield
Tustin residents from sleep disturbances as caused by city staff blunder
mistakes in issuing or. causing to be issued intermingled zoning with
residential zoning and whereas holders of commercial and/or industrial
permit businesses do in fact prevent your residents from sleeping at
night ..... As a taxpayer and resident of the city of Tustin I demand that
this condition be corrected promptly .... I am considering publishing my
proposed "Sleep Ordinance" in the Tustin News so as to get input from other
Tustin residents,
~ober.~'H. NicholFs/
Post Office Box 415
Tustin California 92681
714/838-8117
Copies' City Council Members
City Manager
N413
The following co' -ts staff report from Communit' ~velopment Department dated
November 20 1989 a~'ected to City Manager William A. Huston.
11/20 Report ..." Mr. Nicholas complained about noise/high pitch"...
Correction I complained about a low pitch vibration.
07/31 Report ..."received an anonymous complaint"...
Correction I had given my name but no address.
09/22 Report "Mr. Nicholas finally identified his name and address."
Correction
Staff requested my address and it was finally given as I decided
it was time to get the City involved.
09/22 Report "Mr. Brickson conducted the noise test"...
Omission
It was conducted at 2 o'clock in the ~fternoon.
Observation Test was conducted on 10-12-89 vs 9-22-89 (approximately).
Observation
I had asked why Brickson, and should Brickson conduct the test in
the AM when the problem was occurring... I believe
Beth $choemann thought it to be funny to bring Mr. Brickson out
at night.
10/24 Report "Mr. Nicholas... indicated that there was a strong vibration now
coming from the store."
Observation
I never told staff that the vibration was coming ~rom any other
place except the store - Western Bagel... So why now.
10/24 Report "Mi ~icholas also contacted
times on this date."
~ton's office at least four
Correction
I called only three times - An original call and two follow-ups
to determine why Bill Huston had not returned my call.
Omission
I called Bill Huston directly because Christine Shingleton was
not in the office at that time and also because I felt
Beth Schoemann was not handling my complaint in a serious
manner... As I remember that morning, I called Beth to complain
about Western Bagel's large carts which are maintained outside
and which were being moved and causing noises at night...
Miss Schoemann's response was, "Mr. Nicholas now vou are
-
complaining about carts"... That's when I called Bill Huston.
10/27 Report "Mr. Huston spoke directly to Mr. Nicholas and indicated that the
City had done everything possible but no violations were apparent
on the site."
Correction
What Bill Huston said was that he felt sympathetic to my problem
and that there were ways to correct as have similar problems...
Observation From 10-26 thru 10-31 inclusive I was at Big Bear vs October 27
1989 (approximately) when Bill Huston called.
11/01 Report "Mr. Nicholas, between the Community Development Department and
City Manager's office, called the City six times regarding
subject matter."
Correction
I called Bill Huston's office twice and Secretary Joan indicated
that Mr. Huston was extremely busy that week and in the absence
oX time if I would mind if she ask Christine Shingleton to return
my call and I agreed.
Observation Christine Shingleton never called.
11/02 Report ..."City Community Development attempted to contact Mr. Nicholas
11/03 twice."
Correction
Unless they mis-dialed twice because I received no such calls...
If they called when I was on the phone I would have known about
it since my phone is equipped with COMMSTAR "Call Waiting
Feature" and if they called when I was away, then my Phone-Mate
would have picked up the message. There were no hang-ups and
there were no messages.
11/06 Report ..."concurred that their equipment was faulty."
Correction
I have never concurred with anything but I concluded.., also
concluded that their equipment was causing the vibration.
11/06 Report "He also indicated his objective was to shut Western Bagel down
since they do not belong at their location."
Correction
&
Omission
Comment
Comment
I have never said such a thing - I did say however that when we
were on the Larwin Square roof on 11-5 at 3 a.m. Dennis and I
agreed to shut down the equipment and test for vibrations... So
we got down and he returned to Western Bagel and I returned to my
quarters at which time I called Dennis-to shut down... We tried
the shut-down procedure three times and on each separate occasion
the vibration was totally (almost) gone.
· .
·
Dennis brought to my attention that he was told that I want to
shut down his operation. My reply was that I never said such a
thing...
I talked to Dennis over the telephone for years and finally we
met on 11-5 at 3 a.m. to check the roof equipment of the Pet
Store and the Bagel Store... Basically I think he is a nice guy
and ........ I do not seek to harm him in anlway including shutting down
hit ,ration - but I do want the vl ~ions stopped at night.
11/06 Report "He also complained that Mr. Nicholas was calling him and
Eric Dahlan with Western Bagel at their homes in the middle of
the night on numerous occasions."
Correction Erik Dahl vs Eric Dahlan
Correction
I have never called Erik Dahl - I do not have his phone number
and further do not know where he lives. (I talked to Eric Dahl
once about two years ago when he called me from the Bagel Store
about his delivery truck loading and unloading at 6 a.m. or
SO) . . .
I did however call Dennis twice at his home and at night AT HIS
REQUEST... Once on ? at 2-a.m. and once at 3 a.m. of 11-5 when
we got on top of the Larwin Square roof.
To set the record straight: The owner Steve Ustin told me to
call Dennis and Dennis also told me to call him at home at night
because he too wanted to correct the problem.
Observation Christine Shingleton at the Council meeting of 11-20-89 said
& something to the effect, "Dennis was getting nuisance calls and
Correction Dennis believed they were from Mr. Nicholas."
On 11-21-89 I called Dennis and asked him why he was complaining
about my calling him at night when he and Steve had told me to do
so... He apologized for even mentioning it to
Christine Shingleton however, he did say that he had mentioned
that he was getting hang-up calls from his ex-employees... Quite
a difference...
Comment
I r ....~ly do not know who said what ~-J to whom but I do say that
alle.~ions of that magnitude bet% be supported if ever asked
to do so.
11/07 Report "Dennis said.., they were not in violation of City Code, they
were good neighbors."
Observation He might want to read the Penal Code and, as to being good
& neighbors I hate to find out what being a bad neighbor is like
Correction because his good neighbor attitude has been waking me up, along
with my wife, at all hours of the night for weeks and months and
even years.
11/08 Report "Eric Dahl of Western Bagel... He committed to provide a letter
identifying the steps Western Bagel has taken to date to address
Mr. Nicholas' concerns."
Observation Mr. Dahl's letter identifying corrected steps was dated 11-11-89.
Observation As of 11-18-89 and 11-19-89 items 1 & 2 were not yet
corrected... (They are corrected now since I spoke with the
owner. )
Observation Paragraph #4 of said letter from Mr. Dahl makes reference to
"changed our wholesale baking..." so apparently there is no
dispute in retail vs wholesale.
11/09 Report "Mr. Benedict... stated that Mr. Nicholas had been calling
harassing their office."
Correction
When I called Mr. Benedict and asked him point blank if he said
that I had been harassing his office his reply was NO.
Observation Mis~-~q from the report however .... s that Christine Shingleton
wan~_~ me to pay $17§.00 for 48 Jurs of monitoring equipment
use.
· " .!'~,' , i ' · , ." ~. ~ "~~'C'~~.:~ -'~ ~ · ..... , -~'~,.~,~.~':~,:~. ~.,:,?~ . ~' · ·
11/09 Report "Staff contacted Mr. Nicholas... and agreed to contact the County
for an appointment should he desire to proceed."
Correction
I was told by Christine Shingleton over the phone that
Mr. Benedict would be calling me to set up an appointment.
Observation The above call was made to me at 4:15 p.m. and, if I am not
mistaken,~ someone was listening in as there appeared to be a
hang-up at 4:32 p.m. while we continued the conversation until
4:37 p.m.
The above comments were corrected by Robert H. Nicholas.
..~ober.~ H. Nicholas
?ost Office Box 415
Tustin California 92681
714/838-8117
Copies- City Council Members
City Manager
DATE: NOVEMBER 29, 1989
NEW BUSINESS NO. 4 ~///
TO: HONORABLE MAYOR AND CITY COUNCIL
FROM: WILLIAM A. HUSTON, CITY MANAGER
SUBJECT: DECEMBER 4, 1989 CITY COUNCIL MEETING -
ADJOURNMENT TO DECEMBER 14, 1989
Councilman Prescott has requested that the City Council adjourn its
December 4, 1989 meeting to 7:00 p.m. December 14, 1989.
WAH/dms~/