Dog daycare problem: is it the concern of Canine Kerfuffle Court? Or the one in town?
The operators of a dog day care center have asked a judge to dismiss a lawsuit brought by neighbors tired of the noise, arguing that the city, not a court, should deal with the matter.
The three neighbors who failed in the civil case against Paw Haven retorted that they had tried and filed a lawsuit for the city to act on the noise ordination violation, so a court must settle the dispute.
Both sides made the arguments on Wednesday before Superior Court Judge Barbara Bailey Jongbloed, four months after neighbors filed a complaint. The judge did not render a decision at the hearing.
Over the past year, residents of Peck Street living across the street from the tracks at the Upper State Street facility have complained to Paw Haven owners, the city and the police about the barking that occurs during hours every day, including holidays. Frustrated with the results, they took legal action, seeking to prevent the establishment from using the outdoor dog enclosure, opening the garage doors leading to the outdoor dog enclosure and further infringing the New Haven Ordinance Code and Section 22-363. of the Connecticut General Statutes.
A noise study conducted by Jaffe Holden last October concluded that noise from the facility’s outdoor play area exceeded the local limits of the Residential Property Line Noise Ordinance. Paw Haven co-founders John and Jackie McFadyen and Kevin Rocco invested in acoustic screens across the outdoor playground fence, as recommended in a three-point plan of the study. The facility has also reduced the number of hours dogs spend outdoors and has started keeping its two garage doors only half-open to reduce exposure to indoor noise.
(Learn more about complaints and the facility’s response here.)
Wednesday’s hearing discussed a second half-hour sound study conducted by Brian Wnek, the city’s health department manager.
Lawyer Sylvia Rutkowska, who represented the founders of Paw Haven, argued Wednesday in favor of a motion to dismiss the residents’ complaint and deny their request for a temporary injunction.
The case is “a matter of city decision,” Rutkowska argued. She said the Department of Health’s sound study offered data that showed the sound barrier remedies worked and found no other sound violations. She argued that when the complainants disagreed with the findings of the study, they should have returned to the municipal level to appeal the findings and “end the administrative process”.
Rutkowska described the findings of the second solid study as “a final order that was issued by the local official”.
A third sound study was conducted in May by SH Acoustics LLC and paid for by residents after soundproofing repairs were completed. The study concluded that Paw Haven was still operating in violation of city noise regulations. (Read the study here.) Rutkowska said residents had not given homeowners “the opportunity to even be aware that there were lingering problems. And the city didn’t have a chance to take a look at it again or even have any concept that there was a problem going on.
“Paw Haven reacted when the city said, ‘You are not compliant. “If the plaintiffs had said anything and taken advantage of the remedies available to them for that specific purpose, if they were proven correctly, everything would have been resolved,” Rutkowska said.
The lawyer argued that one of the neighbors who filed the complaint, Petisia Adger, would have been aware of the city’s appeals process for such a case because of her experience in law enforcement. Adger, now retired, was New Haven’s first African-American female assistant police chief.
“As a police officer in the municipality, she would clearly have had a heightened sense of awareness of what the processes were,” Rutkowska argued.
Lawyer Greg Piecuch, representing the neighbors, argued that the robust study results did not indicate the data could be appealed.
He said the case had to go to court because the city had stopped enforcing the noise ordinance.
“Failure to take enforcement action is not a requirement for an order or an appealable decision,” Piecuch said.
Piecuch described the city sound survey as a “snapshot” which, based on residents’ testimony, did not reflect the noise level throughout the day.
Referring to an email to Adger from the city’s deputy director of economic development Steve Fontana, Piecuch said the study was not conducted as a enforcement measure but as an analysis of the noise generated with the addition of soundproofing.
“It is not a decisive decision,” he said. “There is no statutory mechanism that deprives this court of its jurisdiction. There’s no statue that they point to that I’ve heard that says this court can’t hear that unless they’ve been to New Haven City first for some sort of call.