BF recycling center has to reduce noise
A Bosque Farms business went before the village's planning and zoning commissioners Monday evening in the hopes of keeping its conditional use permit for operations of a metal recycling center.
It held onto the permit, but will have to come back to the commission in May to review alleged noise level violations.
The commissioners voted 3-1 to table its final decision until then, with Commission Vice Chairwoman Sharon Eastman casting the only no vote.
Commissioner Karen McAda recused herself from the discussion and vote due to a previous business relationship with the applicant, Bosque Farms Equities, LLC.
In February, Wise Recycling, the company leasing the property from BFE, was told it had two months to correct three violations to it's conditional use permit, which was granted almost a year ago.
According to a report by village Planning and Zoning Officer Loretta Hatch, Wise was not adhering to noise level requirements, the number of allowed driveways for the property and fencing of the property.
At the meeting two months ago, numerous neighbors complained about the noise from the property from the steel being compacted into containers as well as vibrations and shaking from the movement of the heavy equipment.
Eastman said the hearing on April 1 was to address a violation or breach of the conditional use.
She said when the permit was issued on May 7, the company was required to keep noise levels inside the building under 88 decibels and any other noises wouldn't create a nuisance."
"This commission required two driveways, but that's been modified. New Mexico DOT (Department of Transportation) has said there can only be one," Eastman said. "We have to go with DOT."
The applicant was to have made that change by July of last year.
The permit also called for a solid, 7-foot fence around the sides and rear of the property with any security wire on the inside, and the company was to work with the neighbors, Charles and Nancy Fegan, to make arrangements for a reasonable solution, Eastman said.
"They have not fulfilled the requirements of the conditional use permit, therefore we are having this hearing," she said. "The fence is not built, the driveway is not closed, an agreement with Fegans has not been reached and the noise level has been complained about by neighbors."
Hatch told the commissioners some of the issues might have been resolved. She said a letter from DOT was recently issued that indicates the department has reached an agreement with Bosque Farms Equities, and it will replace the sidewalk cuts at its expense, a subject of debate in February.
On the issue of the fencing, Hatch said the company has not been able to reach an agreement with the Fegans, so it has decided to move forward with the construction of a solid, concrete fence on the north side of its property.
"Part of the permit was to come to an agreement with the Fegans," Hatch said.
She continued, saying the Fegans have told her they are unwilling to sign the agreement due to release language in the document that would bar the Fegans from making future complaints about the company and setting all outstanding claims.
The Fegans filed suit against the village in July, asking the courts to repeal the conditional use permit on the property.
On the subject of the noise, Hatch said in the company's application for the permit, it was represented that there would be no adverse impact one the surrounding properties.
"The intended use would have no off-site impact, no crushing or packaging, no loud noises … and no unusually loud noises," Hatch said.
It was up to the planning and zoning commission to decide whether under the company's statement of purpose and intent, the noise was an issue to be mitigated, she said, or whether it was part of the conditional use and a new permit should be applied for.
Allen Wilson, the attorney for BFE, said Eastman's history of the project was incomplete.
"Wise is there under a building permit without any conditions. We have agreed to undergo the conditional use permit process to try and accommodate the concerns from the community," Wilson said. "We have tried to accommodate, but we are dealing with same issues we addressed with P and Z almost a year ago. This commission imposed conditions that required the cooperation of other parties and reasonableness standards, whatever that means."
Wilson said the Fegans have never tried to cooperate, and this was the first time he was hearing they objected to the release language in the fencing agreement.
"They had their own attorney review it. Not once was it said that this is the only thing holding," he said. "This ambush by the Fegans, bringing it up tonight is not what this meeting is about."
There were unreturned phone calls made directly to the couple, Wilson said, and their attorney said they weren't ready to talk.
"We were told at the last meeting, if we can't make an agreement we need to get the fence up," he said. "So we said fine, there's no agreement and submitted plans for the fence. This has been dragging out for a year and now they are saying they have issue with wording in document."
Wilson said BFE had hired a sound engineer with Bohannan Huston to asses the noise levels in the area.
"The noise being generated is far below any threshold," he said. "What other mitigation is necessary? The fact someone doesn't want to hear noise isn't reason for a company to incur the expense of further mitigation on a properly zoned property."
On the matter of the driveway, Wilson noted that again the commission imposed a condition that was dependent on the cooperation of another party — the New Mexico Department of Transportation.
"As you know, they don't always work quickly," he said. "At the last meeting, we had a verbal agreement from DOT that they will take care of it; now we have it in writing."
Saying she has been doing noise analysis in the state for more than 20 years, Denise Weston, with Bohannan Huston, said she did noise measurements between 11:30 a.m. and 1:30 p.m. on March 19. Weston said she took measurements when the loader was in operation and when it wasn't from three separate residential 300 to 400 feet from the business.
In her report, Weston writes that the noise levels were below the Federal Highway Administration's criteria of 67 decibels for residential areas and "well below" the OSHA level of 85 decibels as a maximum to prevent health impacts.
In looking at the times when the loader was in operation, Weston said neighbors are going to hear an increase, "no doubt. But whether it's a nuisance based on the threshold is the discussion piece."
After some back and forth between village attorney David Chavez and Charles Fegan over just how many entrances there were onto the property — two or three — what terms the original agreement offered and just where the fence would be built, Chavez was finally able to get Fegan to give his opinion on the proposed fence on the north side of the property.
The fence will be constructed entirely on BFE's property, 40 feet south of the property line so as not to obscure drivers' sight line when pulling on and off Bosque Farms Boulevard.
"So we have discussed the placement of the fence," Chavez said. "The issue the village wanted to hear from you is, are there any objections you have to the seven-foot fence they are proposing to build to be in compliance with the conditional use permit."
"I don't think I do," Fegan replied.
Fegan said the noise issue was more than just sound.
"People are talking about things shaking in their houses then they switched to decibels," he said. "There is a concussion when things are dropping into the bottom of the containers. It's not noise that's shaking things."
Neighbors to the south on Gonzales Street told commissioners the noise from the facility was like thunder.
"It's like living in a war zone," said Brian Caven. "Nothing has changed since last time."
Nancy Fegan, who's home and office building are about 400 feet away, said several times she heard booming noises and her office vibrated.
"Twice I actually walked out to see what was going on," Fegan said. "It's not mild. It's something that when I am focused on work, distracted me."
Wilson said the big issue regarding the noise was there was no demonstrative way to say what the neighbors were talking about.
"I thought, correctly so, the commission asked for an objective person to come measure the noise, so we did that," he said. "The reason decibels are used is that's how sound is measured."
Saying there are thresholds for noise-generating activities around humans, Wilson said the volume issue been completely addressed.
When asked by Chavez, Weston indicated her study of the noise levels did not measure vibrations from the operation of Wise Recycling.
Commissioner Carl Hulsey made a motion to table the matter until May, saying, "I think we need to get another look at where the noise is coming from."
Commissioner John Craig seconded the motion.
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