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19. Complaint yogurtlandCOMMUNITY DEVELOPMENT DEPARTMENT CITY HALL 90300 TORRE AVENUE= - CUPERTINO, CA 950143255 C O P E RT 1 H O (408) 777-3308 • FAX (~E08) 777-3333 Agenda Item No. ~ Agenda Date: March 17, 2009 SUMMARY: A citizen complaint regarding excessive noise from a roof mounted mechanical equipment located at the Marketplace Shop~~ing Center (Yogurt land), 19770 Stevens Creek Blvd. BACKGROUND: On January 12, 2009, a complaint was received by the City Council from Virginia T.amblyn (residing at 19721 Bixby Drive) regarding excessive noise generated from a roof-top refrigeration unit at Marketplace Shopping Center. On February 3, 2009, City Council received a staff report confirming -that the noise levels at the shopping center were within the limits of the code (Exhhibit A). The -Council directed staff to communicate with the property owner to see if they were willing to consider additional remedial actions to further reduce the noise Level. DISSCUSSION: Since the last Council meeting, KCR Development has retained Stan Shelley, a professional noise consultant, to evaluate the noise issue. The report from Mr. Shelley (Exhibit B) confirms Code Enforcement's original findings and identified the following additional measures to further reduce the noise emitted from the roof mounted equipment: - Extend the rooftop cooler wall about :?.5 feet in the direction of the residence noise path, - Raise the existing rooftop cooler waII by five to six inches, and - Add 15-20 feet of absorbing materials along the rooftop wall. KCR is working to obtain the pricing to execute these measures. However, KCR has expressed concerns that their previous offer.> of remedial actions were not accepted by the complainant and that an expectation to eliminate all noise from the I IVAC system is not a viable or reasonable solution (Exhibit C). ~s-~ ASA-2008-01 Page 2 5, 2008 ENCLOSURES: Exhibit A: February 3, 2009 City Council Staff Report Exhibit B: Report from Stan SheIIey, Acoustical Consultant, Environmental Consuiting Services Exhibit C: Letter from Wayne Okubo, KCR Development Exhibit D: E-mail from Ms. Virginia Tamblyn Exhibit E: Referenced San Jose Mercury News article Reviewed by: ar ao Steve Piasecki City Planner Director, Community Development Approved by: C~~L~V `~ David W. Knapp City Manager ~s-z ExEt ibit A City of Cupertino 10300 Torre Avenue Cupertino, CA 95014 (408) 777-3308 Fax: (408) 777-3333 Community Development Department Summary Agenda Item No. Agenda Date: February 3, 2009 SUMMARY: A citizen complaint regarding excessive noise from a roof mounted mechanical equipment located at the Marketplace Shopping Center {Yougurtland), 19770 Stevens Creek Blvd. BACKGROUND: On fanuary 12, 2009, a complaint was received by the City Council from Virginia Tamblyn (residing at 19721 Bixby Drive) regarding excessive noise generated from a roof-top refrigeration unit at Marketplace Shopping Center. The City Council directed staff to provide a summary of enforcemen# actions and take additional noise measurements of the subject property. DISSCUSSION: Please refer to the attached code enforcement report dated January 16, 2009 for the summary of the code enforcement actions acid the results of the noise investigation. ENCLOSURE: Code Enforcement staff report, Marketplace Shopping Center, January 26, 2009 Reviewed by: Gary Chao Steve Piasecki City Planner Director, Community Development Approved by: David W. Knapp City Manager 19-3 CODE ENFORCEMENT OFFICE 1 ~~•'~, .J/,'`~ 1 CfTY HALL '! 0300 TORRE AVENUE • CUPERTINO, CA 95014-3255 TELEPHOI~EE: (408) 777-3182 • FAX: {408) 777-3'174 C U P E RT I N O codeCcDcuoerti no.orct Excessive Noise Investigation Report Subject Excessive Noise From Roof Mounted Mechanical Equipment- Marketplace Shopping Center (Yogurtiand), 19770 Stevens Creek Blvd. Backeround In April 2008, a complaint was received by the Code Enforcement Division regarding excessive noise emanating from a fixed source on the commercially zoned parcel located at 19770 Stevens Creek Blvd. (Marketplace Shopping Center). The source of the noise was reported to be a roof mounted refrigeration unit located above Yogurtland, a new tenant that began leasing this space in April 2008. The previous tenant was Superstars, a retail sports trading card business. To facilitate the needs of Yogurtland, the refrigeration unit was installed on the roof above the business. Building permits were issued for the installation and final Building Department approval was granted on April 1 O, 2008. Excessive noise is regulated by Chapter 10.48 of the Cupertino Municipal Code (CMC) entitled "Community Noise Control" and establishes the following noise level standards: Maximum Noise Level Land Use on Receivine Property Daytime Nighttime Residential 50 dBA 60 dBA Non-Residential SS dBA 65 dBA For the purposes of establishing daytime and nighttime hours, the following is defined by the municipal code: Daytime weekdays, 7:00 am to 8:00 pm Daytime weekends, 9:00 am to 6:00 pm Since the noise source is [ocated on non-residentially zoned land, the non-residential standards apply and therefore, the noise produced by the refrigeration unit must be less than 55 dBA to conform to .the standards of the municipal code. 1s -z 19-4 Marleiplece (Yogurtland) Noise Report Page 2 Summa On April 28, 2008, Code Enforcement staff met with a resident, Virginia Tamblyn (19721 Bixby Drive) who lives directly behind Yogu.rtland, regarding her concerns that the recently installed -refrigeration unit is excessively loud and may be a violation of the noise ordinance. Code Enforcement staff conducted sound Iev~l measurements from various points along the property line of the Tamblyn property as the refrigeration unit was in operation. Those readings ranged between 50 dBA and 51 dBA. and were found to be in compliance with both daytime and nighttime standards of the municipal code. Code Enforcement staff then met with KCR property manager, Dean Zhang and Yogurtland owner, June Tang to convey the concerns of 1VIs. Tamblyn and request further evaluation to identify mitigation measures. KCR subsequently added bushings to the footing to reduce vibration noise and constructed a sound dampening wall on the side of the refrigeration unit facing the residential street (Bixby Drive) where Ms. Tamblyn lives. Code Enforcement received no further requests for intervention or assistance and the case was closed as the violation was unfounded. On Wednesday, January 21, 2009, Code Enforcement staff was advised Ms. Tamblyn had again contacted the Planning Division concerned that the refrigeration noise was excessive and unreasonable. Code Enforcement staff subsequently conducted additional sound level measurements on two separate days to determine if current sound level output was a violation of the nighttime noise standard. Since Ms. Tamblyn finds the noise to be particularly bothersome in the early morning hours when ambient traffic and other noise from shopping center activities is typically at a minimum, sound level measurements on both days were taken between 7:00 am and 8:00 am. At this time of day Yogurtland is closed and the refrigeration unit is in a similar state to what would be expected between 2:00 am and 4:00 am when Ms. Tamblyn finds the noise to disturb her sleep. The first set of measurements were obtained on. Tanuary 22, 2009,-and taken from the shopping center property along the property line of the three residential properties nearest to the noise source.. The results of those readings were between an average of 44.0 dBA and 48.1 dBA, clearly within what is permitted under the current code (refer attachment I). It should be noted that of the three properties surveyed, the higl4est sound level measurements were from the . property line of the Tamblyn residence. The second set of measurements was obtained on January 26, 2009 and taken from the backyard of the Tamblyn residence at the proi~erty line adjoining the Marketplace nearest to the noise source. Ms. Tamblyn advised the refrigeration unit periodically cycles changing the volume somewhat. Sound level measurements in this data set reflect the noise level at a time described by Ms. Tamblyn to be the loudest. The results of those readings were between an average of 49.8 dBA and 52.2 dBA, again within the parameters of the code. It should be noted the highest readings were obtained approximately 12" outside of Ms. Tamblyn's bedroom window. Of ail the sound measurements obtained on this date, this location was the highest measured of any point on the property- 19 -3 19-5 - Markctplncc (Yogurllniid) Niiise Rcpnn - _ - Yagc 3 COIICIl1S1012 -. Code Enforcement staff has taken three separate sound levet measurements on three separate dates within 10 months. Extelnal weather, time of day, location, and general environmental activity (ambient noise) were alt similar during each set of measurements. Considering the standards set forth in Chapter 20.48 of the municipal code, no violation exists. When reviewing the data, the highest average dBA measured at the loudest point on t12e Tamblyn property is 2.8 dBA below what is allowed pw•suant to the code. Code Ei2foi•cenien$ staff lids also worked with the property owner, KCR Development to mediate the concerns of Ms. Tamblyn. 1'12e property owner has installed sound datnperting bushings in the footing of the unit and constructed a -sound wall on the south side of the equipment to shield. and disperse the sound in other directions, away from the residential area of Bixby Drive. Under the cuI-rent noise ordinance, sound level i$ measured by a fixed number, in this case, SS dBA during nighttime hours. Ms. Tamblyn understands the minimum threshold that .must be exceeded to constitute a violation. and thereby trigger further directive by the City to the propelty 6wner to comply, Ms. "I'ambiyn advised the current ordinance does not solve her situation and expressed ati interest in recommending to tt2e City Council an ordinance that would regulate otherwise- compliant sound levels by considering the length of time the constant noise must be endured- by affected parties.. Atrtllis timed Code;>infprcement has e[osed the investigation and detcrtnii2Gd the violation to'be ` ut~founded':- Submitted by, Alex WylcofY `' `~ - Code Elforcement Of£ cer Report Date: January 26, 2009 Attachments:. Atiaclvtzent h Sottnd-Level Measureli2ent Data Aerial Photo A- January 22, 2(709 Aerial. Photo B- January 26„ 2009 Photos (1-5) Miscellaneous Photos ofRefrigeration Unit. and the Tamblyn residence viewed from the Yogurtland roof 19 -4 Marketplace (YOgurtland) Tioise Report Page 4 Attachment I Sound Level M easurernent Data Standards and Background The sound level readings were taken using a Quest Technologies, Model 2500 impulse and integrating sound level meter. The meter was calibrated at 114 dBA prior to beginning the sound level measurements and re-calibrated at 114 dBA at the conclusion of each set of measurements. The refrigeration unit is on the roof of the shopping center approximately 35 feet above the ground. A service alley and landscaped area with mature redwood trees separates the rear of the shopping center and the residential homes. There is a six foot concrete sound wall {fence line) separating the shopping center from Ms. "Camblyn's residence. Measurements were taken on two different days: Thursday, January 22 and Monday, January 26, 2009. Thursday. Jareuarv 22. 2009: Measurements were taken from the rear alley behind Yogurtland at the rear fence line of the Tamblyn residence (property line). Additional rneasurernents were taken at the rear fence line on each residence next to Ms. Tamblyn (see aerial photo attachment A). Refrigeration unit was in normal operation mode. Point A: North-easternmost end of 19721 Bixby (Tamblyn) at property line, 6'6" above grade. Time dBA 7:35 am 48.5 . 7:36 am 47.9 7:37 am 47.9 Average --- 48.1 Point B: Midpoint of 19721 Bixby (Tamblyn} at property line, 6'6" above grade. Time dBA 7:40 am 47.0 7:41 am 47.1 7:42 am 47.1 Average- 47.0 Point C: North-westernmost end of 19721 I3ixby (Tamblyn) at property line, 6'6" above grade. Time dBA 7:46 am 45.9 7:47 am 45.7 7:48 am 46.0 Average--- 45.9 19 -5 19-7 Marketplace (Yogurtlan~ Noise Report Page 5 ~ Point D: Midpoint of rear property line- 1971 1 Bixby Drive Time dBA 8:04 am 46.3 - 8:05 am 46.7 '_ 8:06 am 45.7 Average--- 46.2 Point P: Midpoint of rear property line- 19731 Bixby Drive Time dBA 8:1 O am 44.2 8:11 am 43.9 8:12 am 44.0 Average--- 44.0 Mondav. Janzcarv 26. 2009: Measurements were taken from four separate points within the rear yard of the Tamblyn residence Three points (A, B, C) were at the rear fence line where it abuts the Marketplace shopping center. Point D is outside of the master bedroom where Ms. Tamblyn described the sound level to be the highest (see aerial photo attachment B). Point A: North-easternmost end of 19721 Bixby (Tamb[yn) at property line, 6'6" above grade. Time dBA 7:48 am 50.8 7:49 am 50.3 8:03 am 51.1 Average ~-- 50.7 Point B: Midpoint of 19721 Bixby (Tamblyn) at property line, 6'6" above grade. Time dBA 7:50 am 49.9 7:51 am 49.8 7:52 am 49.9 Average-- 49.9 Point C: North-westernmost end of 19721 Bixby (Tamblyn) at property line, 6'6" above grade. Time dBA 8:00 am 49.6 8:Oi am 50.1 ` 8:02 am 49.8 ~ Average-- 49.8 zs -s is-s Marketplace (Yogartiand) Noise Report Page 6 Point D: Outside of master bedroom, 12" from window pane, 6'6" above grade. Time dBA 7:39 am 52.3 7:40 am 51.9 7:41 am 52.3 Average 52.2 ~s -~ ~s-s t'~Ecr'~c~ ''~ ~ / ~~~ ~, ' . ~,~~ ~~ 2 ! r ~~ } T ' e ' : t J xh .JM'!dc' 7 ~~~ ...5"w~~ ~'j'l[tw .F`°i < ~ zF a:~~~r~ ~ „~ Y N ` 1 ,~, . k..~ ti~~ ~ i~ TAM~L .°- ~ ~ R€StD~NC~ . -"r ~. ~ ,&~ p f~ . ~'i X ~~ .. .. 4 .t ... ~ w,. ,;~ i~ ,. . ,. . .. r ~ i~ 4, ~ -f k ~~~~A! 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'i i ' i y ^ ~ ' ~ ,v, , { 4k s ~~ E~~ FY L " , ~fi S i{[ . T ti S s 3 Y r '3 ~ .C ` C ry~ 1~.._ \.aLiCi~+ N~~ yy K i~ ~ ~ ~~3yfi Y j 1 ` i ~F t f 4 i ~' ", F 9 1 ~;~ Sri ` r~`1,~4`+, j 1i k''~d ~-it'N TeS t - i ~ I ' :, - F s. ~.: ~~ ~ 1 ¢h" F Y '~i,, i ~+ ~ , ~ x i } ~-, • ; * i c _~ ~ ~_`: ( 44 We'd ~. y 1 f~ V ~~~ ( 1 ~~ ~ x~~r_ t i d'~ J f ~ ~ . .. ' _ i 1 E F I t, i ii - F ~. ~~ i' e, ~.w ~ , ~ 18 -~4. -~ ' - 9 - 16 - 1 ! ... - . Traci Caton EXh%bit B Subject: FW: Summary of Mitigation Measures for.Rooftop Cooler From: Stan Shelly [mailto:stanshell99@toast.net] Sent: Wednesday, March 04, 2009 5:32 PM To: echan@kcrdevelopment.com Cc: Stan Shelly Subject: Summary of Mitigation Measures for Rooftop Cool~:r To: Edward Chan, Dean Zhang Here is a summary of noise measurements and our discussions on Feb. 25 at the shopping center. Cooler noise Measurements: At property line of complainant, above wall: 45-46 dBA On roof, 3 feet from cooler : 83-84 dBA On roof, along edge of roof between cooler and residence: 76-77 dBA Cupertino night noise limit: 50 dBA at property line Recommended mitigation measures ~ 1. Extend rooftop cooler wood wall about 2.5 feet in direction of residence noise path (use heavy marine plywood, -3/4") 2. Raise height of existing rooftop cooler wall by 5-6 inche=s, angled toward cooler (use heavy marine plywood, --3/4") 3. Add absorbing materials to reflecting inner surtace (north) of rooftop wall for about 15-20 feet (use encapsulated R-13 fiberglass Batts. Protect clear plastic from ultraviolet damage by covering with heavy fabric or UV-resistant plastic) Regards, Stan Shelly Acoustical Consultant Environmental Consulting Services 18488 Prospect Road -Suite 1 Saratoga, CA 95070 (408) 257-1045 FAX (408) 257-7235 Since I am usually paid for brief consultations at the end of ti,e site visit, please pay the attached invoice promptly. Thank you ~9-~~ 1 Exhibit ~_ ~~~ KCR Development Gary Chao City Planner Gity of Cupertino 10300 Torre Avenue Cupertino, CA 95014-3202 March 10, 2009 RE: Yogurtland rooftop cooler equipment Dear Gary, I wanted to give you an update regarding our discussion on the Yogurtiand rooftop cooler equipment. Per your recommendation, we engaged Stan Shelly (I understand this is the same acoustic consuttani that assisted the City in creating the code limits) to review the sound issue. Stan came out on February 25~' to take various sound level measurements and to recommend some additional mitigation measures. Stan believes that these measures would help further reduce the sound IeveI and possibly get close to ambient Ievels, but they would not get rid of the sound all together. We are working on getting pricing to execute those measures. Dean, our property manager, had previously met with Virginia and spoke to her about some potential remedies to alleviate her problem, especially at her bedroom window. However, Virginia rejected those and stated that she would only be happy if we boxed the equipment such that there would no longer be any sound_ Unfortunately, creating a box over the equipment is not a viable, nor a reasonable, option as the equipment needs airflow in order to function properly. it would also create accessibility issues for the maintenance of the equipment. According to the 2007-2008 U.S. Occupational Safety and Health Administration (OSHA) Handbook, noise levels at 50 dBA is equivalent to being at home in a quiet environment, while 60 dBA is equivalent to being in a quiet office or having a normal conversation_ Ai Virginia's bedroom window; the sound was measured at 52 dBA. It is clear that the equipment that was originally installed by Yogurtland met the City noise limits. However, upon Virginia's request to possibly reduce the sound level further below the City noise limits, we went above and beyond by installing a sound barrier around the equipment, . as well as bushings to the footings. We plan to further reduce the sound level by implementing the mitigation measures recommended by Stan. KCR Dsvefopmsnt 19770 Stevens Creek Boulevard - Cupertino, CA 95014 - Tal: (406) 343-'1088 - Fax: (408) 883-7333 We feel we taken more than reasonable measures to reduce the sound and accommodate our neighbor. If you have any further questions, please feel free to contact me. Sincerely, Wayne Okubo Traci Caton From: Gary Chao Sent: Wednesday, March 11, 2009 9:02 AM To: Traci Caton Subject: FW: Question regarding myComplaint Exhibit D From: virginia TAMBLYN [mailto:vtamcupt@sbcglobal.net] Sent: Sunday, March O1, 2009 10:54 AM To: Dolly Sandoval Cc: Orrin Mahoney Subject: Question regarding myComplaint Dear Dolly and Orrin, At the council meeting on the 3rd of February, Orrin stated that they would take a month to look into my complaint regarding the noise from the Yogurt Shop compressor. The noise is still there, and the shopping center representative has not contacted me, so I am just asking for an update. Has there been any progress on resolving the problem? I read an article which stated that Sunnyvale had protesting neighbors regarding an adjacent business, and the nearby business had to address a sound issue and cover and buffer its' equipment. "The residents said that the city had failed to address the resulting quality of life issues." "They complained of sleep deprivation and psychological impacts." Believe me, that certainly fits my symp#oms. That constant noise is a real problem. By the way, thank you for your supporting Jessica's reappointment to the Planning Commission. I thought that she was an asset, and am sorry that she was not reappointed. Thank you for your help on the behalf of my neighbors and myself. Virginia Tamblyn 19721 Bixby Dr. Cupertino vtaincup~ sbcglob al .net 408-253-2278 is-zo Sunnyvale commission grants residents reprieve from annoying hum -San Jose Mercury ... Page 1 of 1 ~~jfr,el'CttL`L„~ ;~elVt~ ; : Exhibit E AAercuryNews.com Sunnyvale commission gran#s residen#s reprieve from annoying hum 8y Cody Kraatz SunnyvalB Sun PosY~d: 02!25/2009 02:42:40 PM PST Northern Sunnyvale condominium residents who have complained at length about a constant hum from a neighboring business have been heard. The Sunnyvale Planning Commission, voting 6-1 on Feb. 23, responded by granting Aixtron Inc., a variance from the city's noise ordinance, but requiring the company to install acoustical blankets, barriers and silencers on a chi[ier and two scrubbers oh its roof. The machines operate 24 hours a day, seven days a week, and are necessary for clean rooms that the semiconductor manufacturing machinery maker needs to maintain perpetually. The new equipment is expected to cost $69,200. Residents described the noise in extreme Perms, complaining of sleep deprivation and psychological impacts. "In terms of quality of life, in the summertime unless you're running your air conditioning unit you're not going to be steeping well," said Kevin Ngo, a Munich Terrace resident who organized the neighborhood's complaints to the city. In August; from the from an open third-story window overlooking Aixtron's roof -the continuous hum sounded like someone was vacuuming a few doors down. With the window closed, it was barely noticeable. There has been ongoing tension in the Morse Park Neighborhood Association area, which is bounded roughly by Fair Oaks Avenue, Highway 101 and Route 237. The city designated much of the neighborhood as an industrial to residential zone, which makes it easy to rezone and redevelop properties so the city can get more housing_ Residents said the city has failed to address the resulting quality of life issues, including conflicts between homeowners and businesses. "It's taken almost a year for this to get resolved, which I thought was pretty disappointing," said Ngo. "It could have been executed so much better than it was." Douglas Atkins, Aixtron's attorney, said tha company would consider whether to appeal the commission's decision to the city council. The city created this problem by creating the new zone designation, and the company should not have fo suffer as a result, Atkins said_ While acknowledging the impact on residents' quality of fife, Atkins argued for just the $23,000 blanket to be required. The city required the equipment to be installed within three months, unless Aixtron gets an extension. The noise will be reduced significantly, although in some places it will still be slightly above the noise ordinance limit. Contact Cody Kraatz at ckraatz@community- newspapers.com or (408) 200-'1081. - Read ratirag scares and surrey comlments of top rated collnpstilnies. °--•--e ~ `~ O Y~ t ~ ~? _.. .. C`so T`o Fvww.l3ia>tnandCerfifled.org , ,.. ES`~~nt P:oweCed By t."c~ 1=ori~natO nomics" is-2t Cc 3 1r~ ~o ~ ~r ~ Grace Schmidt From: Gary Chao Sent: Tuesday, March ~ 7, 2009 3:22 PM To: Grace Schmidt; Kimberly Smith Cc: Steve Piasecki; Kelly Kline Subject: FW: Council meeting tonight -item 19 Grace/Kim, For tonight's meeting. Thanks. Gary Chno City Planner City of Cupertino 408.777.3247 (Direct) 408.777.3333 (Fax) -----Original Message----- From: Edward Chan [mnilto:echan@kcrdevelopment.com] Sent: Tuesdny, Mnrch 17, 2009 12:15 PM To: Gary Chao Subject: Council meeting tonight Gary Unfortunately due to prior nrranged schedule, we cannot nttend tonight's council meeting. Sorry about that. Just as an updnte, we are in the process of executing :5tnn Shelly's recommended mitigation measures for the rooftop equipment at Yogurtland. If you have any questions, please let me know. Thanks Best regnrds, Edward Chan KCR Development