Man claims Deltona wastewater plant noise keeps him from sleeping

DELTONA —Keith Lawhun envisioned a quiet, semi-rural lifestyle when he purchased several acres of property near the city's border with unincorporated Osteen in 2007.

He had dreams of developing a residential community for people with physical disabilities. Lawhun hasn't had use of his arms since he was in his early 20s. He had Hodgkin's disease at 13, and the amount of radiation he received caused significant damage. While he didn't let it slow him down, he's seen how disabilities can make the people who have them feel out of place.

But Lawhun's idyllic plans have not developed. Shortly after he moved onto his property on Keelhaul Road, the city of Deltona purchased 52 acres of land next door, the future site of a wastewater treatment plant.

The wastewater plant went into operation in the spring of 2016. Lawhun claims it's so noisy it interferes with his sleep. And when the wind blows the wrong way, the stench is unavoidable.

"I'm supposed to be able to enjoy the outdoors and indoors of life here after they built the plant as I did before," Lawhun said while standing in his yard on a recent night, the wastewater plant humming loudly in the background. "The crickets that you hear? That's what I should be hearing."

The 60-year-old unsuccessfully sued the city in 2017 — the third legal action he's taken against Deltona related to the property. Lawhun's attorneys, George Trovato and Tanner Andrews, are working on an appeal, which they expect to file this month, court records show. Lawhun and his lawyers assert the city is violating its own noise ordinance with the plant, as well as the Florida Administrative Code's chapter on domestic wastewater facilities.

But Lawhun has nearly given up on finding the peace and quiet that once existed when he traveled down Keelhaul Road — a pine tree- and palmetto-lined dirt road where lightning bugs make appearances. He his wife, Emma, hope to find eventual solitude on a rural property they purchased in Kentucky.

With years gone by and about $30,000 he estimates he's spent fighting the city, Lawhun hopes to win his appeal, sell his property, write a book, and move to a place where development is harder to find.

Sound expectations

Lawhun's property is zoned agricultural, but it's also where he and his wife live. According to Deltona's city code, "all premises containing habitually occupied sleeping quarters shall be considered residential use." 

The couple's bedroom is on the end of the house closest to the wastewater plant. Before going to bed, they turn on the exhaust fan in their nearby bathroom in an effort to drown out the plant's sharp humming.

Deltona spokesman Lee Lopez said city officials wouldn't comment for this story, citing the ongoing litigation.

But according to Deltona ordinances, sound level limits for residential property are set at 60 decibels from 7 a.m. to 10 p.m. and 55 decibels from 10:01 p.m. to 6:59 a.m. That's about the sound level of a normal conversation from 3 feet away, according to the federal Occupational Safety and Health Agency.

In contrast, the wastewater plant resides on a parcel that also is zoned agricultural. There, the city sound limit can be 75 decibels at all times. That's somewhere between classroom chatter and a freight train at 100 feet, according to OSHA.

Lawhun hired sound expert Dave Parzych as part of his most recent legal effort. According to Parzych, noise from the plant often exceeds 55 decibels on Lawhun's property, and levels inside of the couple's bedroom are typically 40-plus decibels. That's about the sound of a soft whisper from 5 feet away, according to OSHA.

Parzych, founder, president and principal acoustic consultant of Power Acoustics, Inc., monitored Lawhun's property for 24 hours on June 5, 2018. Lawhun left the property for that period so as to not contribute to any sound readings.

"What we found was the sound exceeded the city of Deltona noise ordinance for residential properties relatively frequently, and inside his home the sound was well exceeding what would typically be thought of as an annoying sound by the World Health Organization," said Parzych, who has testified in several dozen cases related to sound.

Levels in a bedroom should be less than 30 decibels for a person to get good quality sleep, according to the World Health Organization. 

During one of a reporter's visits, noise on Lawhun's property standing outside at 9 p.m. from the wastewater plant ranged from 56 to 62 decibels, according to Lawhun's digital sound meter.

Human perception of sound is such that every time there's an increase of 10 decibels, the noise seems twice as loud, Parzych said.

In Lawhun's lawsuit, he requested the city operate the wastewater plant in a manner that would not produce noise greater than 55 decibels at any time; that it not emit sounds from motors, generators and alarms between the hours of 7 p.m. and 7 a.m.; that it not make noise louder than the average volume of conversation at the property boundary; and that it not emit sound that violates the Florida Administrative Code.

The Florida Administrative Code's chapter on domestic wastewater facilities was included in the permit the city received from the state Department of Environmental Protection. In part, it states, "new treatment plants and modifications to existing plants shall be designed and located on the site so as to minimize adverse effects resulting from odors, noise, aerosol drift and lighting." Also, treatment plants "shall not cause odor, noise, aerosol drift or lighting in such amounts or at such levels that they adversely affect neighboring residents, in commercial or residential areas, so as to be potentially harmful or injurious to human health or welfare or unreasonably interfere with the enjoyment of life or property."

In October 2016, the Department of Environmental Protection noted in an inspection report summary that Deltona's wastewater plant had a minor out-of-compliance issue because of a "rising intermittent cycling noise" that could be deemed offensive.

In February 2017, Matt Doan, the city's public works director at the time, emailed an environmental specialist with the Department of Environmental Protection about the various efforts the city made to reduce or manage noise at the wastewater plant after it was designed. Those efforts included rotating the generator 180 degrees so the exhaust would face away from Lawhun's home, changing the generator exercise start time and changing how often the air release valve blows.

Lawhun and his attorneys contend those efforts didn't improve things.

Parzych also said that while the wastewater treatment plant doesn't exceed the city's sound limits every second of the day, it does exceed them some of the time, and even when it's not louder than the limits, often it's barely under them.

"The problem that I see with this is that noise ordinances are put in place to be protective of the people, and what they (the city of Deltona) have done is interpret the ordinance to be protective of the noise maker," Parzych said.

B. Scott George, an attorney with Fowler, O'Quinn, Feeney and Sneed, P.A., the Orlando-based law firm representing the city, argued in a January 2019 memorandum that Lawhun's claims "are barred by the doctrine of res judicata."

Res judicata, according to Cornell Law School, is "a matter that has been adjudicated by a competent court and may not be pursued further by the same parties."

Lawhun's attorney Tanner Andrews said the city is arguing that Lawhun should've raised his noise issue with the wastewater plant in an earlier lawsuit he filed in January 2016 against Deltona regarding access to an easement that connects both the plant and Lawhun's property to 11th Avenue, which in turn connects with State Road 415. The issue with that argument, Andrews said, is the plant wasn't fully operating at that time, so Lawhun had no idea the level of noise that wastewater plant would emit at that time.

The final judgment in the 2016 easement case, which was filed in November 2018, was that the city couldn't block Lawhun's access to 11th Avenue at any time, court records show.

George also argues in the memorandum defending the city that the wastewater plant's noise is reasonable under common law nuisance doctrine, and Lawhun hasn't properly pleaded his case for relief or proved that it's necessary the court issue a permanent mandatory injunction against the city. Additionally, George argued that the court hearing the case was lacking in subject matter jurisdiction regarding the Florida Administrative Code's chapter on domestic wastewater facilities.

But Andrews said the plant's noise is a textbook example of a nuisance.

"It's hard to live in a house where there's so much racket you can't sleep," Andrews said. "The zoning doesn't change the fact that it's producing way too much noise and thereby interfering with Mr. Lawhun's use of his property."

In February, Volusia County Court Judge Christopher Kelly denied one of the three counts in the lawsuit and granted the city's motion for involuntary dismissal of the other two. Kelly said he wasn't sure res judicata applied in the nuisance case and was basing his ruling on Lawhun carrying the burden of persuasion, which Kelly didn't feel was met, according to court transcripts.

"I have no doubts whatsoever that Mr. Lawhun's use of the property has been disturbed by the building of the water treatment plant there," Kelly said, according to court transcripts. "The question is, does it rise to the level of inducements and such that the law would support this court issuing a mandatory injunction directing the city to take certain steps?"

He said, they said

Lawhun said he knew when he purchased his property in April 2007 that the city was considering purchasing an adjacent parcel for a wastewater plant. He also said the city told him if the plant was constructed, it would be some distance from Lawhun's property, with plenty of trees in between. 

While the agricultural zoning of the city's property allows for water treatment plants, the structure should "in the absence of an appropriate natural vegetation screen, be visually screened from adjoining properties ... with an appropriate fence, decorative masonry or plant material," according to Detona's city code.

The small amount of vegetation the city planted between the wastewater plant and Lawhun's property does nothing to mitigate the treatment plant's noise, Parzych said.

"You have to have several hundred feet of trees that are mature, dense trees before you get any substantial noise reduction from buffering and vegetation," Parzych testified, according to court transcripts.

Parzych said the layout of the treatment facility was "poorly designed," and "there's things that could've been done to mitigate the noise." But "any time you put in mitigation, there's a cost associated with it."

George, the city's attorney in the case, said if the city made efforts to lessen the sound just so Lawhun can enjoy his property, it could potentially open the city up to regulatory issues, court records show.

Trovato, who previously worked for the city, said the frequency of the sound has increased with the elevated usage of the plant.

"Nobody really cares at this point about what's going on," Trovato said. "And since it's only one neighbor out in the woods, it's like 'maybe he'll just get tired and go away.'"