New neighbors wage legal battle over barking at Bluff High Kennels in Savage

Read the original article by Christine Schuster at here.

Nestled on the hilltop, to the west of the Highway 13 and McColl Drive intersection is where the Buff High Kennels dog boarding business has operated in Savage for 40 years.

In recent years, the large Trout Run Preserve housing development has slowly covered the east hillside, bringing one home so close to the kennel that there is less than 30 feet between the property lines.

New residential neighbors have unleashed a debate over dog barking that can be heard from their home and it clouds the future for the kennel business. Last month, the Savage City Council amended the kennel’s permit to clarify rules regarding the noise, so they’re less open to interpretation. City staff also carved out a new procedure for noise violation enforcement.

Over the past several months, a legal debate surrounding this issue has unfolded over many hours in public meetings. City staff is now navigating how to honor the commercial business that’s been in operation for decades, but also be cognizant of surrounding neighbors’ needs. A citation was issued to kennel owners by the city this month for being in violation of the residential habitual barking code. After five citations, the kennel could shut down.

History of Bluff High

Robin Pensinger and her husband, Jack, opened the dog boarding business in Savage in 1979.

A garage connects the owners’ two-story home to the kennel, making an “L” shape — the home on the north, the kennel to the east and the circle driveway facing the road to the south.

Doug Carlson was a teenager when he met Robin Pensinger on a plane — they were both headed to the Westminster Dog Show. The two hit it off and established a friendship.

In college, Carlson moved into a room that was the kennel’s original office to work for the Pensingers, doing daily tasks such as mowing the lawn, cleaning the kennels and feeding the dogs. Today, his makeshift bedroom is a dog grooming room.

“They were like second parents to me,” Doug Carlson said.

In 1997, Jack Pensinger died, leaving Robin to operate the kennel herself. As Robin aged, she didn’t want to leave her dogs behind. She relied on the help of Doug Carlson and his wife, Mandy — also a professional dog handler— to run the business.

“We helped out more and more until she passed away,” Doug Carlson said.

It was Robin’s wishes that the kennel and home go to Doug and Mandy Carlson, and in 2010 they took over ownership of Bluff High Kennel.

New neighbors

At 7 a.m. each morning, the dogs boarded at the kennel are let outside into fenced-in dog runs. Up to 60 dogs can be housed at the kennel at one time.

Mandy Carlson remembers explaining that over the phone when someone from Ron Clark Construction — the Trout Run Preserve builder — called the kennel prior to anyone moving into the new development. Mandy Carlson said she provided the caller with the daily schedule and explained that the dogs tend to bark as soon as they go outside, but they settle down and are never unattended.

“We weren’t hiding anything,” Mandy Carlson said.

Ron Clark did not respond to a request for comment from the Savage Pacer.

A few months later, the Carlsons toured the newly-built home down the hill, just a stone’s throw from their kennel. Mandy Carlson remembers looking out the bedroom window and being surprised to see how close to the kennel it was.

Wayne and Annette Masterson moved into the home in June 2017.

On Feb. 9, 2018, a letter addressed to the Savage mayor and Savage City Council members arrived from an attorney representing the Mastersons. The letter asked the city to revoke the permit that allows the kennel to operate, stating the kennel operation was not in compliance with the conditions required by the permit.

The Mastersons’ argument rested on one of the terms in the kennel’s permit that read, “The kennel shall be completely enclosed and shall be soundproofed so as to prevent noise from being heard on adjacent parcels of property.”

The Bluff High Kennels property is on land that is zoned for residential use, requiring the Carlsons to abide by residential rules, with some exceptions, since they operate a business. Because the business has been there for decades, well before homes were built in the area, it was given legal non-conforming use status, meaning it’s allowed to operate in an area not zoned for commercial use.

Whether or not the kennel was complying with the rules in its permit was brought to the forefront when the Mastersons moved in, but the rules were the same rules that had been in place for 40 years.

The Mastersons declined the Savage Pacer’s request for an interview but did provide statements and answers to questions via email.

Annette Masterson said via email it wasn’t surprising the kennel’s non-compliance came to the forefront when she and her husband moved into the brand new home because their home is by far the closest to the kennel of all the residences in the area.

The amendment seeks to clarify what it means to soundproof and how noise restrictions can be enforced.

Once the Mastersons brought their concerns to the city, hours of discussion about the noise standard played out in city meetings before the issue was addressed in the amendment approved June 4.

Before the city reached a decision that night, Wayne Masterson addressed the council.

“Your city predecessors knew that this day of adjacent incompatible use might occur as the city evolved,” he said. “Please honor their wisdom and judgement and honor our right to live peacefully, healthfully and without harm as all residents of Savage might hope and expect.”

At a public hearing in May, Annette Masterson said they clearly didn’t know what they were getting into when they purchased the home.

When she was asked by the city’s planning commission if she had the opportunity to stand outside and listen to the dogs before purchasing the home, she said no.

“More importantly, we didn’t have an opportunity to sleep in the house,” she replied.

City’s decision

Two sound standards will apply to the kennel under the amended permit and there are a graduated series of penalties that apply. If five violations of either condition are recorded within a rolling 12-month period, the process will begin for termination of the permit, which would ultimately shut down the kennel.

One standard is the habitual barking law included in the city’s nuisance code. The law states that it is unlawful for any person to keep or harbor a dog which habitually barks or cries.

The other standard is a residential noise control standard set by the Minnesota Pollution Control Agency. It’s known as the NAC 1 and the levels of permitted noise are based on decibel levels measured from the spot where the noise is bothersome. In this case, from the Mastersons’ property.

Under the amendment, city staff will coordinate a schedule to complete NAC 1 sound checks quarterly.

The Carlsons wonder how the sound readings will be impacted by other sounds, such as semi truck noise.

Sides of the argument

The council spent hours mulling how to amend the kennel’s permit in order to allow some noise to be heard, but also make sure the sound level is in compliance with standards enforced in any residential neighborhood.

“I want to be mindful of an existing business that’s been here for many, many years,” council member Bob Coughlin said at the June 4 council meeting. “We can’t be over-burdensome about putting restrictions above and beyond reasonableness and they were there first — when you build a house next to a pig farm, you can’t complain about the smell.”

Wayne Masterson said the council was approaching the issue in a way that protects the kennel, rather than the residents, with a “patchwork of solutions.”

“I’m trying to be as positive as I can but it is perplexing to me that I feel like this body is attempting to promote barking rather than prevent it,” Wayne Masterson told the council. “We all know, barking is barking. I know they’re a kennel, but barking is barking. We all know it’s an unbelievable irritant and we live with it every single day.”

Earlier, at the May 10 Savage Planning Commission’s public hearing, Annette Masterson addressed the possibility that the city would amend the permit, as requested by the Carlsons.

“The amendment request is an avoidance tactic that makes a mockery of our distress,” she said.

Annette Masterson played audio recordings of the barking and said it can be heard from dogs both inside and outside the kennel.

“We are subjected to this type of barking every day of the week and the inside barking noise we endure, as I said, can take place at any hour of the day or night,” she said.

During the hearing, Annette Masterson became emotional while she talked about the suffering the barking has caused her and her husband, including severe stress, increased blood pressure, nausea and impaired concentration.

At the hearing, Annette Masterson said they tried to solve the problem themselves with a letter sent to the Carlsons, which she said was ignored.

Later on, Doug Carlson followed up with the Mastersons with an idea — he, the city, the Mastersons and the developer Ron Clark could split the cost of building a sound barrier wall to separate the properties. The other parties never agreed to this, according to Annette Masterson.

The street that the Mastersons live on in the Trout Run Preserve is a short, dead-end street. The kennel and the residences are separated by a line of trees and retaining wallA strip of property that is owned by the homeowners’ association separates the Masterson and Carlson land.

Paul Justen, a resident who lives near the Mastersons, said he knew about the kennel before him and his wife purchased a lot for their home about five years ago. He said he remembers driving to the street and parking with the windows down to listen for noise on multiple occasions before deciding to make the purchase.

“It isn’t like its constant dogs barking, it isn’t like that at all,” Justen said. “Most of the time you don’t even hear them.”

Annette Masterson said via email she believed their complaints to the Savage Police Department — and the complaints made by others in the past — were inappropriately dismissed because of the “city’s misguided interpretation of the kennel’s status as a grandfathered land use.”

At the May 10 public hearing, the Carlsons’ attorney, Matthew Woods, said the Mastersons were the only ones to complain about the noise in 40 years. Savage Police Capt. Bruce Simon said he was not personally aware of other parties who have complained about the noise to police, although he said there have been some complaints made anonymously.

Over the years, Doug Carlson said neighbors have occasionally discussed noise issues with him but none of these complaints have gone as far as a formal nuisance complaint process.

Looking to the future

In her remarks at the May 10 planning commission, Annette Masterson said amending the permit will not solve the problem.

“It will only force us to seek resolution in the courts at more expense to ourselves, the city and taxpayers and the Carlsons,” she said.

The Mastersons declined to comment on their plans in regards to legal action.

“This is a very regrettable circumstance that arose because the City permitted the building of residential homes in close adjacency to a commercial kennel,” Annette Masterson said by email.

She said the commercial use was not noted in staff reports provided to the planning commission and city council back when the housing development was approved, which is perhaps why the oversight occurred, she wrote. She added they are hopeful that the Carlsons will make site and operational improvements to solve the problem.

Doug Carlson is moving forward with replacing the kennel windows, which he said will cost around $32,000. He is also considering sound wall and landscaping improvements and said he is working with an expert to identify the best solution.

“This is more than just a property to us,” Mandy Carlson said.

On July 1, the Carlsons were away from the kennel at their daughter’s dance competition when habitual barking was reported to Savage police. A citation was issued to Doug Carlson for being in violation of the residential habitual barking code.

Doug Carlson said he plans to challenge the citation in court on Sept. 24 in hopes that it will be dismissed and not count toward the five violations that trigger termination of his operating permit. If the decision is upheld, he said, it will bring them significantly closer toward going out of business.

“In my opinion, there is no way a commercial dog boarding kennel can abide by a residential habitual barking ordinance,” he said.

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