Anderson Valley resident Mark Scaramella has filed a Petition for Writ of Mandate and Complaint for Declaratory or Injunctive Relief asking a Superior Court Judge to order Mendocino County to enforce its noise ordinance as it applies to vineyard fans in the Anderson Valley.
The Petition cites the County's own "Exterior Noise Limit Standards" which are clearly violated by five fans owned by three of Mr. Scaramella's neighbors in Boonville.
Mr. Scaramella alleges that the County and his neighbors either knew or should have known that the fans violated the County noise ordinance when construction permits were issued for the fans, and that the County and vineyard owners have had plenty of time to comply with the noise ordinance, but have not.
In his complaint Mr. Scaramella summarizes the actions and non-actions taken by the County or the fan operators to date in response to earlier noise complaints.
"We and other victims of these infernal machines and the County officials have had several meetings with fan operators and owners acknowledging that there's a problem and that something needs to be done, but nothing has come out of all that activity," Scaramella said. "Basically, all the County or the vineyard owners have said so far is, 'Sorry.' So here we are months later and almost every direction I look from my house, there are those monster fans, threatening to come back on at any time making noise that's louder than anything I heard back in my days on US Air Force flight lines."
"One Anderson Valley vineyard owner even went so far to say at one of the meetings last spring that if it came down his grapes or people's sleep, his grapes trumped our sleep," added Scaramella.
Mr. Scaramella said he knows there are a number of ways to reduce the noise from these fans and alternatives to their use. He understands, of course, the reasons for their use. "But they come on in the spring around midnight when it starts to turn cold. It’s not just a trivial inconvenience of a night or two. Last year there were 20 nights during April and May when the fans were on for hours at a time. They run continuously all night until after daylight hour after hour, night after night. It's absolutely impossible to sleep. I'm not trying to tell these grape growers how to conduct their operations, I just want them to do it in a way that complies with the County rules and gives local residents who live near these new noisy nuisances a chance to get a decent night's sleep."
Scaramella's attorney, Rod Jones, indicated that, while the County's broad "right to farm ordinance" provides some immunity against nuisance complaints for growers who are conducting ordinary agricultural operations such as pesticides, vehicle and equipment operations, dust, and so forth, it does not exempt newly-introduced practices that create nuisances. "Countless residents of Anderson Valley lived there for years before the big wineries moved in. Frost control was managed without big noisy fans that have been erected right near residential parcels, such as the one where my client resides," said Jones.
"Basically, I want the County to treat these things like boomboxes," said Scaramella. "If they're too loud, the County and the fan operators have to take whatever reasonable measures are necessary to comply with their own noise standards so we can sleep. We can’t live with another spring like last year."
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Mendocino Attorney Rod Jones sent the following letter to Mendocino Ag Commissioner Chuck Morse and County Counsel Doug Losak in late November, 2014. On December 5, Jones received a phone call from Losak saying that Losak needed another week to respond. No response was ever received by Scaramella or Jones, although Morse told Ukiah Daily Journal reporter Justine Frederickson that a response had been sent. The lawsuit was then filed on January 6th.
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Re: Vineyards & Frost Fan Noise
I write on behalf of my client, Mark Scaramella, concerning the anticipated operation during this frost season, especially March and April 2015, of frost fans in parts of Anderson Valley. I draw particular attention to those machines closest to my client’s residence and under the control of V. Sattui Winery (Napa), Foursight Wines, and Pennyroyal Farm.
You will, of course, recall that this issue first surfaced last winter when many residents of Anderson Valley registered their complaints about the noise caused by the industrial frost fans during late night and early morning hours. This resulted in a public meeting May 7at the Grange attended by about 50 Valley residents. One woman said the noise shook her house and was so generally unendurable that she "felt like going out in my front yard and screaming." Another likened it to the sounds of helicopters in the movie, Apocalypse Now. One individual likened the sound to “living with a lawnmower in the bedroom,” while others described it similarly to living near an airport with jet aircraft landing.
My client and others also filed complaints with the Planning & Building Services Department concerning violation of Mendocino County’s Exterior Noise Limit Standards. Jim Kerr came out to assess the situation, promising a substantive response to the issue. Similarly, Supervisor Dan Hamburg was notified by residents of the continuing problem but evidently has remained silent. In other words, nothing has happened.
At the May meeting, Ted Bennett of Navarro Vineyards said that if it came down to protecting his grapes versus peoples’ sleep for some number of nights, he'd prefer his grapes. Arnaud Weyrich of Scharffenberger Cellers later wrote a letter of “apology” to residents explaining why the “wind machines” are used and asked for “patience with the situation.”
But “patience” fails to address the problem. It simply asks people to live with the situation without complaining. Given the drought conditions and likely lack of water to use for spray, the problem is likely to occur again beginning January, if not sooner. That makes it imperative that remedial action be taken now rather than waiting until the the problem revisits us.
Our county noise ordinance sets a 10 p.m. – 7:00 a.m. standard of no more than 40 dBA, adjusting to 50 dBA after 7:00 a.m. until the evening hour. My information after viewing a number of websites and materials from manufacturers informs that standard two-blade system (the oldest and cheapest) generates 70 to 80 dBA with some very old versions running as high at 92 dBA at 126 feet, or nearly double the county limit.
Local wine makers well know the various steps that can be taken to minimize noise intrusion. For example, using a four or five-bladed fan significantly cuts down noise to somewhere between 60-plus dBA. Movement and location can help, particularly when the fans are mounted so as to be capable of placement away from nearby residences. There also exists a “HushKit” that dampen noise that reduces engine noise and exhaust, sometimes down to 46 dBA.
More modernly, and somewhat in response to noise reduction ordinances, Shur Farms makes a Cold Air Drain that consists of an inverted fan pushing air downward, then horizontally, at ground level. It then rises verically to warm vines during frosts. Apparently, the warmer air can extend upward as much 300 feet. Such “inverted sink fans” or “Selective Inverted Sink” (SIS) are commonly known in the industry and were featured in a December 2009 Wines & Vines Magazine article for vineyard owners and operators. Rather than pulling down warm air as a fan does, this system pushes away cold air from the vines. A single unit can protect up to 16 acres. Shur’s noise study found these machines significantly quieter than fans. At a distance of 120 feet, and dependent on the engine used, they produced a dBA in the sixties.
Often vineyards run these SIS machines first, reverting to fans or wind machines only when the temperature plummets dramatically. In a recent drive through the valley, I noted a number of these already in use by some vineyards and the were older machines, so this is not something new to the Valley. I collected some of this information from the internet and I’m sure you already know about a useful publication [undated] entitled, “Vineyard Frost Protection: A Guide for Northern Coastal California,” by the Santa Rosa Sotoyome RCD & USDA-NRCS.
Just to provide a complete picture, we’d also refer you to a study conducted by Professor Hugh Fraser and others at Brock University in Ontario, Canada (“Wind Machines for Minimizing Cold Injury” ). It noted that residents living near vineyards “can be affected by low-frequency noise and vibrations.” Affected residents described the noise like this: “…[L]ike a helicopter, whining, or thumping sound or that their windows or dishes vibrate. It takes 4.5 to 6.5 minutes for the head of the blades to make its full 360-degree sweep around the tower (depending on make), so sound oscillates in intensity in a sinusoidal fashion. Some find this irritating, since it makes them wait in anticipation for the sound to grow louder. […] Wind machine blades also produce low frequency sound and very low frequency infrasound waves (Gambino and Fraser, 2006). These travel long distances and may penetrate, or excite, building components of residential structures. Low frequency sound is like low bass music sounds you might hear in your home when someone next door is playing their stereo, even though you cannot hear the rest of the music.”
We hope that this problem has not been pushed under the table using the Right-to-Farm rubric, as that seems to be largely a red herring in this situation. We recognize that Civil Code section 3482.5 (state "Right to Farm Act") applies to a commercial agricultural activity conducted for more than three years consistent with accepted standards in the locality such that it is not deemed a nuisance due to any changed condition in the locality if the activity did not constitute a nuisance when it began. (See generally W&W El Camino Real, LLC v. Fowler (2014) 226 Cal.App.4th 263 and Souza v. Lauppe (1997) 59 Cal.App.4th 865, 868; accord, Mendocino County Code 10A.13.010.)
But the operation of these fans does not easily come within the scope of “accepted standards” nor is it clear that they have been used for more than three years. My understanding is that, next to smudge pots or literally burning fires in the vineyards, the most common method of frost control has been sprinkling vines with waters or “microsprayer frost protection.” More importantly, however, is that my client is not objecting to the any use of frost fans but merely asserting that this technology needs to be used responsibly, with the need of neighbors (most of whom have lived in the valley long before the wine boom), and in compliance with noise standards. Exactly how that gets done is something for the vineyard owners and operators to figure out. My client and others simply want their right to get a restful night’s sleep.
As we see it, the County is obliged to enforce its noise ordinance. Section 10A.13.020 of our County Code even specifies that the right to farm nuisance protection does not apply when “a nuisance results from the negligent or improper operation” of an “operation or appurtenances.” So we’re writing to you and copying this letter to the affected vineyard owners in the hope that all parties might arrive at some amicable resolution of the situation in sufficient time to avoid another winter of terrible night time noise in the Valley. And, of course, to obviate the need for judicial enforcement action of some kind.
Would you be kind enough to respond substantively on this matter no later than December 5, 2014? Thank You.
Sincerely, Rodney R. Jones, Attorney, Mendocino
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Supervisor Dan Hamburg and Ag Commissioner Chuck Morse discussed the wind machine nuisance in Anderson Valley at the Board of Supervisors meeting of June 3, 2014:
Hamburg: “Our Ag commissioner is in the room, and I know he's been very involved in this and it is something kind of tangential to the drought situation which is the needs in the Anderson Valley to use wind turbines for frost protection. I'm sure most of the board members have heard about this. We have wind machines operating all the way from the 128-253 intersection all the way to the town of Navarro along Highway 128.
“There have been a number of community meetings that have been held. I think Chuck Morse has attended a couple of them. I have attended the most recent one, which happened last week. There is no doubt that there is a lot of consternation in Anderson Valley about the disturbance from wind machines. This really is another result of the drought. It's because the farmers cannot use water to frost protect, they are using wind turbines.
“There are a lot of issues involved here. There is the right to farm ordinance. There are decibel limits connected to our noise ordinance. My concern is that we address this somehow between now and when we are going to have a lot of frost again, which will likely be in the fall. We have some very low-lying vineyards in Anderson Valley where the cold really starts to get on nights when most of the rest of the county is frost-free, Anderson Valley is being hit with temperatures in the mid-30s and sometimes the low 30s.”
Supervisor Carre Brown: “And we did have last Thursday as the Ag Commissioner predicted, we did have last night.”
Hamburg: “Chuck [Morse] watches this very closely. He knows when it's likely to happen and he tries to spread the word. What I know from talking to my constituents there is that there is a lot of concern. We are starting to get complaints coming in under our nuisance ordinance from people who are more than 300 feet away from an existing ag operation. So what our right to farm ordinance says is if you live within that 300 perimeter the rights of the agricultural operation trump any kind of a nuisance complaint that would be issued. [Ed note: Probably incorrect. See below.] But we are seeing now the people who are outside that perimeter complaining and sending those formal complaints to the Planning Department. We also have petitions which are out around the town. There are people who are having their sleep disturbed and they are very concerned. I'm in favor of agriculture. I'm in favor of vineyards. I know how much tax revenue they bring into the county. It's not a matter of trying to put anybody out of business or trying to make it hard for people to operate. I do know though that there are farming operations in Anderson Valley that get along with a lot less of these wind machines than others. And I don't know what all the reasons are. I know there are some ways that you can prune and some ways you can protect your crop that necessitate less, less of these wind turbines. I'm not saying that they are not necessary. I know they are. But I think there are better and worse technologies connected to the wind machines in terms of the thermostats, in terms of the way the actual turbines function. This year I think we kind of got caught by surprise. I don't think anybody anticipated how bad this drought would be and how much that would necessitate the use of wind machines. We had a lot of rental machines on the market and people going and picking up machines from rental agencies that maybe were not as high quality as some of the ones that are permanently installed. I think there are just a whole host of issues that are connected to this. The reason I bring this up during the drought report is that this is part of the drought, the increasing use of wind machines to frost protect. I don't think it's going away. I think we are likely to see the same kind of problems next year. So I am trying to work with both Chuck’s office and the Planning and Building department and of course the people in Anderson Valley to try to make some progress on this issue before we get into the frost season again. So, I don't know, Chuck, you are here and that's the reason I brought this up. I was going to bring this up later, but I saw you in the audience and I thought I would bring it up now.”
Ag Commissioner Chuck Morse: “I would like to start by thanking both Supervisor Brown and yourself for being at the Ad Hoc [drought committee meeting] and making it happen and keeping that moving because it is serious, a serious issue. It's great to see the coordination that you two have put together to bring the state resources to help our communities in the broader sense. You summarized the situation out there pretty well. There have been multiple meetings. Just to be real brief, I am going to continue to try to bring the growers and the community together in the next — we have about 10 months before this is going to cycle through again. The vineyard operators I was talking to, most of them are not going to use it for frost protection in the fall. They are not thinking about that. Because these are rental machines, so every 30 days they are paying a cost for this very unusual situation, the majority of that. So I am looking at 9-10 months to try to figure out what we can do to help the folks out there.”
Hamburg: “I really appreciate the work you have done Chuck. You have gone over there and tried to settle things down and come up with some good ideas. Most of the vineyard operators over there have really tried to be receptive to the ideas that you put forth and that they've come up with themselves. Obviously there are still some very dissatisfied people over there. We need to address as many concerns as we can between now and the next frost season. And I think we can do that.”
Morse: “You are absolutely right that the owners and operators of the vineyards out there are very aware of the situation and what is happening. We are just going to try our best to see if we can work on that.”
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(AVA Commentary, June 11, 2014) — Supervisor Hamburg doesn't communicate with Boonville's beloved community newspaper. It apparently hasn't occurred to him to call an open public meeting to discuss the gross nuisance the frost protection machines present to the people of the Anderson Valley, and if he and Ag Commissioner Morse are going to talk about this stuff privately, those conversations are unlikely to lead to resolution because the affected community is shut out.
The 300-foot nuisance-free zone is news to us. Assuming there is a 300-foot free fire zone between neighbors and an ag operation, the logic of the right-to-farm ordinance is to forestall people who move into an ag area and then complain about the smell of barnyard animals and tractor noise. But we're talking about industrial ag and a freshly-introduced nuisance equivalent to a 747 take-off that disturbs the sleep of everyone within a mile or more of these things, and that means most people who live on the Valley floor of the Anderson Valley.
Speaking solely for your beloved community newspaper, we don't expect relief from the Supervisors or anything resembling leadership from Hamburg. These things have to go. Period. If they don't, we'll be in court next Spring with recordings seeking some kind of court order preventing their operation. Failing that we'll go creative.
There have only been three formal complaints filed so far, two of which were rejected as being too general. The third complaint is ours. It's being investigated by the Planning Department's code enforcement division. Nothing has been agendized for future Supe's meetings and no additional meetings or updates on the subject of wind turbines are scheduled for the Anderson Valley.
‘Right To Farm Ordinance’:
“AGRICULTURAL LAND. Shall mean those land areas of the County specifically classified and zoned as Agricultural, Rangeland, Forestland, or Timberland Preserve within which agricultural, timber growing and related activities are to be encouraged and protected.
“AGRICULTURAL OPERATION. Shall mean and include, but not be limited to, the cultivation and tillage of the soil, animal husbandry, the production, cultivation, growing, harvesting and processing of any agricultural commodity including horticulture, timber or apiculture, the raising of livestock, fish or poultry, and any acceptable cultural practices performed as incident to, or in conjunction with, such farming operations, including preparation for market, delivery to storage or market, or to carriers for transportation to market.
“No existing or future agricultural operation or any of its appurtenances, conducted or maintained for commercial purposes, and in a manner consistent with proper and accepted customs and standards, shall become or be a nuisance, private or public, for adjacent land uses in or about the locality thereof after the same has been in operation for more than three (3) years, when such action was not a nuisance at the time it began; provided that the provisions of this subsection shall not apply whenever a nuisance results from the negligent or improper operation of any such agricultural operation or its appurtenances. (Emphasis added.)