Maya McFadden File Photo
Operators of a doggy daycare asked a judge to dismiss a lawsuit brought by noise-weary neighbors, arguing that the city, not a court, should handle the issue.
The three neighbors who failed the civil case against Paw Haven countered that they tried and filed to get the city to act on a noise ordination violation, so a court needs to settle the dispute.
The two sides made those arguments Wednesday before Superior Court Judge Barbara Bailey Jongbloed, four months since neighbors filed the suit. The judge did not make a ruling at the hearing.
Over the past year the Peck Street residents living across train tracks from the Upper State Street facility complained to Paw Haven owners, the city, and the police about barking that happens for hours every day, including holidays. Frustrated with the results, they filed the lawsuit, seeking to restrain the facility from using the outdoor dog pen, from opening the garage doors leading to the outdoor dog pen, and from further violating the New Haven Code of Ordinances and section 22 – 363 of the Connecticut General Statutes.
A sound study conducted by Jaffe Holden last October concluded that the noise from the facility’s outdoor play area exceeded the local noise ordinance limits at the residential property line. Paw Haven co-founders John and Jackie McFadyen and Kevin Rocco invested in sound barriers across the outdoor play yard fence, as recommended in a three-point plan by the study. The facility also decreased the number of hours the dogs spend outdoors and began keeping its two garage doors only halfway open to reduce exposure to noise from indoors.
(Read more about the complaints and the facility’s response here.)
The Wednesday hearing discussed a second half-hour sound study conducted by city Health Department Senior Sanitarian Brian Wnek.
Attorney Sylvia Rutkowska, represented the Paw Haven founders, argued Wednesday in favor of a motion for dismissal of the residents’ complaint and denial of their application for temporary injunction.
The case is “a matter for the city to decide,” Rutkowska argued. She said the health department’s sound study offered data that showed the sound barrier remedies worked and didn’t find further sound violations. She argued that when the plaintiffs disagreed with the sound study findings, they should have returned to the municipal level to appeal the findings and “finished the administrative process.”
Rutkowska described the findings of the second sound study as “a dispositive order that was issued by the local official.”
Evinaldia Ortiz’s backyard view of Paw Haven pre-sound proofing.
A third sound study was conducted in May by SH Acoustics LLC and paid for by the residents, after the soundproofing remedies were complete. The study concluded that Paw Haven was still operating in violation of the city’s Noise Ordinance􏰁 regulations. (Read the study here.) Rutkowska said the residents didn’t given the owners the “opportunity to even be aware that there was any continuing issues. And the city wasn’t given an opportunity to take a look at it again or even have any concept that there was an ongoing issue.”
“Paw Haven reacted when the city said, ‘You’re not compliant.’ Had the plaintiffs said anything and taken advantage of the remedies that are afforded to them for this exact purpose, if they were proven correctly, this would have all been resolved,” Rutkowska said.
The attorney argued that one of the neighbors filing the lawsuit, Petisia Adger, would have known about the city’s appeal process for such a matter due to her law enforcement experience. Adger, now retired, served as New Haven’s first female African-American assistant police chief .
“As a police officer in the municipality clearly she would’ve had a heightened sense of awareness of what the processes were,” Rutkowska argued.
Attorney Greg Piecuch, representing the neighbors, argued that the sound study findings did not indicate that the data could be appealed.
He said that the case had to be brought to court because the city had stopped enforcing the noise ordinance.
“The failure to take enforcement action is not an order requirement or decision that’s appealable,” Piecuch said.
Piecuch described the city sound study as a “snapshot” that, based on resident testimony, was not reflective of the noise level throughout the day.
Referencing an email to Adger from city Deputy Economic Development Director Steve Fontana, Piecuch said the study was conducted not as an enforcement action but as an analysis of the noise generated with the addition of the sound proofing.
“This is not a dispositive decision,” he said. “There’s no statutory mechanism that divest this court of jurisdiction. There’s no statue that they’re pointing to that I’ve hear that says this court cannot hear this unless they’ve first gone to the city of New Haven on some sort of appeal.”
A key point that was missed in this "news" article is that yes, the first sound study concluded that Paw Haven was, in fact, over the noise ordinance. During this time, Paw Haven worked diligently with the neighbors, LCI, the City of New Haven and a team of acoustic engineers to put forth a plan to reduce the noise that was impacting the neighbors. This mitigation effort included thousands of dollars of sound dampening acoustic panels in addition to various operational changes such as leaving the garage doors opened to 50% of their height to help deflect the sound. Once the sound mitigation efforts were complete, the city of New Haven coordinated and conducted another sound study and the city issued a decision based on this report stating that Paw Haven was no longer in violation of the sound ordinance. This was a decision made by a municipal official. Sounds like the sound mitigation efforts worked.
Fast forward to today: two Peck Street neighbors are unhappy with the results of the city's sound study results and have therefore, decided to individually sue the owners of Paw Haven. Let it be noted that the news of the neighbors' lawsuit broke to the Independent before the owners of Paw Haven had even been served.
This is NIMBYISM at its finest. Paw Haven not only went through the proper channels to obtain the zoning through the city but it also worked to improve its sound mitigation and fell below the decibal level required by the city. Caving into the demands of a few angry neighbors while ignoring the positive impact a local business, opened by three New Haven residents nontetheless, sets an awful precedent for anyone looking to invest in New Haven.
This frivolous lawsuit is a waste of valuable resources that could be used otherwise, perhaps mitigating the sound of dirt bikes, gunshots, illegal mufflers choppers, and Boeing 747s.