Following a morning of jury selection, the court case known as Vely versus Brown got underway in District Judge Patrick Murphy’s courtroom at 2 p.m. Monday, July 9, and is expected to last all week. The case focuses on a noise nuisance claim made by Chris Vely and Laura Barton, 11444 Antelope Road, against neighbor Alison Brown, 11600 Antelope road.
Brown was keeping American foxhounds on her property when the Velys purchased and moved into a residence on the adjoining rural property. By this time Brown had incorporated a fox-hunting club called Headwaters Hounds, licensed by the state of Colorado with Brown recognized as a Master of Foxhounds.
Randy Herrick-Stare, attorney for the plaintiffs, pressed the noise concerns that prompted the Velys to create a bark log and hire a sound engineer to make sound measurements 60 feet from Brown’s property line on the Velys’ 40-acre parcel. Herrick-Stare had presented seven video recordings as evidence when court adjourned at 5 p.m. Herrick-Stare explained that “the effects of chronic, periodic and irregular barking was to disturb the peace of their home.
“This is a quiet environment, so sharp sounds show up more. The noise became more and more persistent but not predictable when it was going to happen. The noise was robbing Chris and Laura of the enjoyment of their home. It wasn’t working, so they decided to engage the community, the county, the sheriff, the planning department to deal with zoning and land use issues. Because the land use code has a bearing on this, they went to Chaffee County Commissioners. They began to gather evidence. They started making recordings of the events when dogs barked. They made 179 recordings of the dogs.”
Charlie Cain, lead lawyer for Brown, cautioned the jury to consider the lengths Vely and Barton went to because they decided to move next door. “Pay attention to the timing and the impact of their decisions. The land area is 80 acres. They tested the sound before they bought. Within one month of moving in, they told (Brown) the sound was too loud, she had to fix it, and they wanted it fixed immediately.
“A number of efforts were made – a 24-hour caretaker, purchasing bark monitors, a regimented training program. She analyzed the sound, offered to pay for and build a boundary to block sound. She built a hay barn and positioned it to block sound. She installed storage containers to block, she offered to purchase their property when they said she’d failed to solve it. She purchased another 40 acres to try to buffer. Now we’re at 120 acres.”
Herrick-Stare called the first witness to explain the sound recordings.
“We set up a sound-monitoring station – a microphone on a tripod, connected to a sound level meter,” said the first witness for the plaintiffs, Tim Gulsrub, owner of Soundpost Acoustics LLC and an audio engineer consultant. He explained that his sound recordings were made inside a hunting blind to eliminate the effects of wind, and the equipment was constantly monitoring for one week in early November 2016.
Lawyers for Brown disputed the validity of the sound recordings.
Under cross-examination, Gulsrub explained that the hunting blind was a “creative solution” to eliminate wind noise. However, state statutes require that sound measurements be conducted in conjunction with wind measurement equipment to accurately adjust sound results.
Gulsrub also said that he had not made any actual recording of the sounds he was measuring. Although Gulsrub knew the noise levels, he had no way to assure that the sounds he measured were, in fact, the dogs and not some other source like tractors or farm equipment.
Colorado state statute says acceptable sound levels for residential areas should not exceed 45-50 decibels, night to day. Gulsrub said residential sound level limits were reached 13 times during the seven days his recording equipment was in place.
“The state statutes describe measurement for impulsive, periodic or shrill noise. I calibrated the equipment at the start, and it was checked each day by Vely. I matched it to the bark log they kept. I heard some impulsive (sound) – a short ‘ruff,’ I would not call it shrill. I would characterize it as periodic and sometimes impulsive.”
Asked about his decision to record sound as residential zoning, Gulsrub said “I am not an expert on what constitutes residential areas. The only other alternative (zones) are commercial, industrial or light industrial – there is nothing else. It didn’t seem reasonable to apply those other higher levels to this.”
Cain pointed out that state statutes on noise ‒ the industrial, light industrial and commercial sections ‒ permit noise levels to increase by 10 decibels for a period not to exceed 15 minutes in any one-hour period. Gulsrub said he did not increase the decibel measurement levels by 10 in his readings during the day and had no idea how many of the 13 recorded instances where his measurement exceeded the residential level would be considered covered by this portion of the statute, nor how many total minutes the sound incidents he recorded covered.
Brown’s lawyers also pressed her case against Vely and Barton for defamation for their lead roles in creating and promoting a change.org petition that included inaccurate statements about foxhunting activities. The petition included claims of animal abuse related to an outdated definition of the term “cubbing,” which accused Brown, and Headwaters Hounds, of animal cruelty.
The inaccuracies were also printed in a brochure handed out around Salida, specifically at the November 2016 holiday parade.
The change.org petition was created four days after Vely complained to the county, asking officials to revoke the building permit they had just issued to Brown for a residence on the property, but the petition makes no mention of noise.
Herrick-Stare said that, at that time, Vely “didn’t know what cubbing was. He’d never heard of it before – he went to the dictionary, he looked at Google and found a long history of disputes over foxhunting, the concept of cubbing, so he took those to (the) county, drafted a petition and posted it through change.org. Brown is attempting to fit into a state statute definition of agriculture because of predator control … chasing animals is not predator control.”
After the petition, said Cain, Brown began to receive hate messages, “unspeakable language – even a local message that said, ‘the next time you go out cubbing, you should start fearing for your life, and I don’t kill helpless animals.’
“The statements are defamatory as a matter of law if it tends to harm a person’s reputation, if it lowers the opinion of you by a respectable portion of the community. You aren’t here to decide if that is what happened – that has already been determined – but to decide whether the Velys published these statements, that a preponderance of the evidence is more probably true than not.
“Your second task ‒ they have to prove that the noise from the foxhounds unreasonably interfered with their life. The evidence will show that their expert failed to follow even basic procedures for sound measurement. Any levels of sound coming to the property were well within the sound limits for the property.
“Alison did not pick this fight. Alison tried to avoid this fight. This fight came to her,” said Cain. “They created a false narrative about her, and her reputation may never recover.”