Jeff,
Thanks you very much for responding in such a quick and comprehensive way. I have sent many emails to Code Enforcement and have received few replies.
Please tell me what compliance means per your statement below.
"We want the owner to have this property in compliance sooner than later." The answer to this question is very important to us because we have never been told what the end looks like. So please what is "compliance".
Thank you for the question. To elaborate on “compliance” I offer the following:
•
All material stored on the eastern portion of the property, must be removed until such time as county site plan approval is obtained.
o
The owner is separating/filtering the material in order to remove it. The rock crusher is prohibited.
•
All equipment must be removed from the eastern portion of the property, until such time as county site plan approval is obtained.
Note – All activities and equipment associated with the activities pursuant to the SWFWMD permit, are permitted.
Additionally, staff is visiting the site regularly to ensure progress.
Also, I have reviewed the SWFWMD permit previously and again today. I have also read the court documents that were filed by your office and the County Attorneys' office that state essentially nothing is allowed but removal of material from this property. I can't find any reference that allows the processing of material on this site. I can't find any reference that allows the delivery of concrete washout to this site, that we all know will be crushed at some point. This is not permitted I can't find any reference that allows the continual unloading of dump trucks to this site. This is not permitted I see and hear this activity everyday and report it but nothing is done to stop it. When you report these activities we do take it seriously and we do respond by visiting the site. By the time we get to the site the alleged activities are not taking place. I understand your frustration and empathize with you. Please know that I respectfully state, with our limited resources we can not afford to have an Officer stationed at the property every day.
Please read the court documents, specifically the red highlights, and please scroll down below the letter to where I addressed the sound test issue at the bottom of this reply. Thank you very much and I look forward to your response.
Third Party Defendant MANATEE COUNTY , a political subdivision of the State of Florida , by and through its undersigned attorney, sues Third Party Plaintiff, MGM OF WEST FLORIDA, LLC, (hereafter referred to as “MGM”) and alleges:
1. This is an action for a temporary and permanent injunction pursuant to the Manatee County Land Development Code, Section 106.4.
2. MGM owns, operates and maintains the property and a business located at 7405 28th St. Ct. E., Sarasota ,
allowed under its current zoning, and no rezoning request has been sought. A true and correct copy of the Stop Work Order is attached hereto and marked as EXHIBIT A.
4. On April 29, 2020 , MGM served an Appeal of the Stop Work Order; said Appeal not having been ruled upon as of this date. A true and correct copy of the Appeal is attached hereto and marked as EXHIBIT B.
5. Despite being served with the Stop Work Order, MGM continues to conduct the work on the premises in violation of the Order. Numerous complaints have been received from neighboring residents and many of the residents have provided Manatee County with written statements documenting the continuous and ongoing violations of the Stop Work Order. MGM continues to deposit materials on the property and perform excavation work in direct violation of the Stop Work Order.
6. MANATEE COUNTY has attempted on numerous occasions to serve MGM with a Notice to Appear before a Code Enforcement Magistrate; but to date, said service has been unsuccessful.
7. Pursuant to Section 106.4(A)(2) of the Manatee County Land Development Code, violations of the Code that are continuous with respect to time may be abated by injunctive or other equitable relief.
8. MGM’s violations have been continuous and ongoing, despite being served with the Stop Work Order.
9. Manatee County residents are suffering harm as a result of the failure of MGM to comply with the Stop Work Order and will suffer irreparable harm in the absence of an injunction by this Court ordering MGM to comply with the Stop Work Order.
10. The issuance of an injunction in this matter will serve the public interest by preventing the continued emission of air pollutants, ground disturbance and excessive noise as a result of the unpermitted use. There exists no adequate legal remedy at law in this matter due to MGM’s blatant and intentional actions in ignoring all of Code Enforcement’s administrative efforts to obtain compliance.
11. MANATEE COUNTY has a substantial likelihood of success in obtaining a favorable ruling in this matter. MGM is operating an unpermitted heavy industrial site on a property that is not zoned for it. MGM is utilizing the site to haul and store site preparation and road construction materials with daily loading and unloading of said materials and processing of the materials. This activity is a clear violation of both the site’s zoning as well as the terms of the Stop Work Order.
12. MGM has asserted the position that it should not be forced to comply with the zoning requirements because it has been ordered to undertake wetlands mitigation on the property. MGM created the need for wetland mitigation by unlawfully filling the wetlands years ago and the Water Management District has been attempting to force mitigation administratively for several years. MGM’s failure to comply with the requirements of a prior Consent Order ultimately led to the filing of this action. MGM now argues that it should be relieved from compliance with current zoning and site plans due to a situation that it created.
13. MANATEE COUNTY is amenable to revising the Stop Work Order to allow limited excavation in order to complete the wetlands mitigation; however, only “removal” of materials from the site should be allowed and no materials should be brought to the site.
14. Due to the fact that MGM continues to conduct work on the site that is unrelated to the wetland mitigation, access to the property by inspectors should be allowed to monitor any limited mitigation work on the site.
WHEREFORE, MANATEE COUNTY, demands judgment for a temporary and permanent injunction restraining MGM from: (1) operating the business in violation of the Stop Work Order on the property located at 7405 28th St. Ct. E., Sarasota, Florida, 34243, (2) costs of this action and (3) any other relief deemed appropriate.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been electronically filed with the Clerk of the Court and served by e-mail pursuant to Fla. R. Jud. Admin. 2.516(b) to: Elizabeth M. Fernandez, Esq., at [email protected] and Allison K. Dhand, Esq. at [email protected], Attorneys for Petitioner, and to Derin Parks, Esq., GRIMES, HAWKINS, GLADFELTER & GALVANO, P.L, at
[email protected], Attorney for Third-Party Plaintiff, MGM of West Florida, LLC, this day of May, 2020.
/s/ Douglas E. Polk, Jr.
DOUGLAS E. POLK. JR. ESQ.
Florida Bar No.: 0771686 Assistant County Attorney
Manatee County Attorney’s Office 1112 Manatee Avenue West, Suite 969 Bradenton , Florida 34205
Tel: (941) 745-3750 Fax: (941) 749-3089
Primary E-mail: [email protected] Secondary
E-mails: [email protected] and [email protected]
The chart below shows different noise levels from different
equipment. Everything they do involves a diesel engine which would fall under the 110 dba area.
I can't find any guide that tells me what the sound level of a giant dump truck gate slamming against the bed would be but I can assure you it is the sound of an explosion. It literally rattles our windows.
So yes, I would welcome you to do a noise study from my property in tandem with a lineup of say ten massive dump trucks unloading material and slamming their gates against their beds.
If you can arrange that test, I tell you as God as my witness there is no possible way they could do anything but fail.
We would be happy to set this up. Let me know what day and at what time you might be available
BAND SAW 94-95 4 HOURS 88 dBA TRUCK/TRACTOR 90-110 2 HOURS 91 dBA
SKILL SAW/CHAIN SAW 95-110 I HOUR 94 dBA Up to 18 dBA
BAND SAW 94-95 30 MINS 97 dBA
WOOD PLANER 94-96 15 MINS 100 dBA
BRAKE RIVETTER 97-99 8 MINS 103 dBA Up to 24 dBA
GRINDER 83-100 4 MINS 106 dBA
ROUTER 98-100 2 MINS 109 dBA
GUILLOTINE 94-103 1 MIN 112 dBA Up to 30 dBA WELDING MACHINE 99-100 30 SECS 115 dBA
CIRCULAR SAW 100-106
Cc: Tom Wooten <[email protected]>; Cory Hayden <[email protected]>; Misty Servia
<[email protected]>; Cheri Coryea <[email protected]>; John Barnott
Sent: Thu, Nov 19, 2020 10:37 am Subject: RE: Noise
Good morning Doug,
Hope your doing well. As you requested, below is the information you require. Section 2-21-31 of the County Code of Ordinances regulates “Noise”. More specifically to your inquiry:
Land Development Code 542.1. Noise disturbance.
No person shall make, continue, or cause to be made any noise disturbance, in accordance with the Manatee County Noise Ordinance (Section 2-21, Article II, Code of Ordinances). The Noise Ordinance is enforceable by trained law enforcement officers and code enforcement officers who have met the required Manatee County standards for noise enforcement.
(Ord. No. 19-03 , § 3(Exh. A-5), 3-21-19) Code of Ordinances
Sec. 2-21-34. - Prohibited acts.
(2) Maximum permissible sound levels.
a. Sound level limits pursuant to this section shall be measured with a sound level meter as a Leq (average sound level) for a minimum thirty (30) second period of time.
b. Sound level limits. No person shall generate or cause to be generated from any source, sound which, when measured in accordance with the requirements of subsection (d) of this section, exceeds:
1. Sixty (60) dBA or sixty-five (65) dBC during the hours between 7:00 a.m. and 11:00 p.m., Sunday through Thursday. Friday, Saturday and the day prior to a federally recognized holiday, the hours shall be from 7:00 a.m. to 12:00 midnight.
2. Seventy-two (72) dBA or seventy-seven (77) dBC if the receiving land is a residential use adjacent to a commercial use during the hours between 7:00 a.m. and 11:00 p.m., Sunday through Thursday.
Friday, Saturday and the day prior to a federally recognized holiday, the hours shall be from 7:00 a.m.
to 12:00 midnight.
3. Fifty-five (55) dBA or sixty (60) dBC during the hours between 11:00 p.m. and 7:00 a.m., Sunday through Thursday. Friday, Saturday and the day prior to a federally recognized holiday, the hours shall be from 12:00 midnight to 7:00 a.m.
c. Correction for character of sound. For any source of sound which emits a continuous sound, the maximum sound level limits set forth in subsection (2)(b) shall be reduced by five (5) dBA. For any source of sound which is of short duration and is nonrepetitive, the maximum sound level limits set forth in subsection (2)(b) shall be increased by five (5) dBA from 7:00 a.m. to 11:00 p.m.
d. Correction for ambient sound. Corrections for ambient sound should be made in accordance with applicable ASTM standards.
e. Methods of measurements.
1. The measurement of sound shall be made with a decibel or a sound level meter operating on the
"A" or "C"-weighted scale of any standard design and quality meeting the standards prescribed by the American National Standards Association. The instruments shall be maintained in calibration and good working order. Measurements recorded shall be taken so as to provide a proper representation of the sound source. The microphone used during measurement shall be positioned so as to not to create any unnatural enhancement or diminution of the measured sound. A wind-screen for the microphone should be used when required. Traffic, aircraft, and other background ambient sounds shall not be considered in taking measurements except where such ambient sound interferes with the primary noise being measured.
2. If the receiving property is an agricultural area the measurement shall be made within thirty (30) feet of a receiving occupied structure or facility approximately five (5) feet above ground.
3. For all other properties, the measurement shall be made within the boundary of the receiving property as appropriate approximately five (5) feet above ground.
4. Acoustical measurements should be made in general conformance with ASTM Standard E1503-06 (or most recent) Standard Test Method for Conducting Outdoor Sound Measurements Using a Digital Statistical Sound Analysis System or ANSI Standard S1.13, Measurement of Sound Pressure Levels in Air, with regard to addressing issues such as measurement equipment, equipment interferences, calibration of the equipment, and measurement procedures.
For your convenience, I highlighted the applicable sections specific to your inquiry. Neither the Land Development Code nor the Code of Ordinances regulate when a business can start or end operations. If you are amenable, Code
Enforcement would be happy to come out and conduct an early morning noise reading.
Also, know that we are visiting the site almost daily. The owner has allowed this thus far. We want the owner to have this property in compliance sooner than later. I have attached the South West Florida Water Management (SWFWMD) Permit for your convenience. They are required to comply with SWFWMD as well as with the County Codes. The equipment (front end loaders, dirt sifters, loading of dump trucks, etc.) being utilized should only be used in efforts to comply with both agencies until such time as they receive County approvals for the use of the eastern portion of the property.
I hope this helps,
Cc: Jeffrey Bowman <[email protected]>; Tom Wooten <[email protected]>; Cory Hayden
<[email protected]>; Misty Servia <[email protected]>; Cheri Coryea
Subject: Noise
Code Enforcement,
At what time in the morning are you allowing this illegal activity to begin?
I want an answer.