Thursday, December 2, 2004
A judge dismissed two noise citations issued to B&K Distributing Inc. on Thursday, but the ruling did little to solve an ongoing dispute between the beverage distribution company and residents who live near its 13th Street facility.
After nearly five hours of legal wrangling and testimony from various witnesses, Deputy Municipal Court Judge Jon Melvin declared that the city of Steamboat Springs failed to prove beyond a reasonable doubt that the alleged noise violations occurred. The ruling had the effect of dismissing the two citations issued to B&K earlier this year. Each citation carried with it a possible fine of $999.
"This is a tough one," Melvin said when making his decision. "I think B&K is too noisy.
It's bugging people, and there's got to be something done about it."
But the city, represented by staff attorney Dan Foote, failed to meet its burden of proof, Melvin said.
The defense argued that a section of the city's noise pollution ordinance is too vague and fails to clearly define "impulsive" and "shrill" noises and that the city failed to define B&K's property boundary and whether the alleged noise violations were measured at least 25 feet from that boundary line, as the city ordinance requires. Attorneys Mike Holloran and Bill Schurman represented B&K.
Foote said that a topographic survey map submitted as evidence clearly defined B&K's property line and that an aerial photograph and testimony from Code Enforcement Officer Shane Jacobs proved that the noise level measurements were taken at least 25 feet from the property line.
However, Melvin was not satisfied that the city met its requirements to prove beyond a reasonable doubt that the crimes occurred. He made his ruling before the defense could present its case.
Both citations stemmed from noise level readings taken by Jacobs on two occasions in March. Some of those readings exceeded the decibel levels permitted by city ordinance for industrial zones during late-night and early-morning hours. B&K Distributing is situated in an industrial zone that is directly across the street from a residential zone.
Residents of the Fairview neighborhood have long complained about the noise stemming from B&K's operation, including the backing-up alarms on B&K trucks, trucks idling loudly overnight and the sounds made by the air brake systems commonly found in those trucks.
Some of those residents have said the noises occur day and night, preventing sound sleep, disturbing young children and creating a public nuisance.
B&K and the city have attempted to resolve the dispute with a series of measures, including the placement of no-overnight-parking signs, allowing drivers to park their trucks overnight at the Stock Bridge Transit Center, performing all after-hours loading and unloading inside the B&K building and offering to construct a fence along the property's boundary.
Kevin Kaminski, one of B&K's owners, said he didn't consider Thursday's ruling a victory.
"No one's winning in this," Kaminski said. "I would have rather spent $8,000 on a solution than fighting for nothing."
Brian Kaminski, also a B&K owner, said his company would go to the City Council in continued attempts to identify solutions to the ongoing dispute.
Jamie Walsh, a Fairview resident who has spearheaded the effort to curb B&K's alleged continuous noise violations, said he is considering taking the matter to civil court. He also said he and other residents would continue to push the city to enforce its laws.
Foote also told the court he thinks the dispute will continue.
"This issue isn't going away," Foote said. "There's going to be an effort for more tickets to be issued."
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