Mixed-use muddle
The city gave Bantaba Dance Studio a thumbs up—then forced it to close its doors. In a mixed-use neighborhood, should noise standards be different?
By Grace Hood (editorial@boulderweekly.com)

It's a chilly Tuesday night in October, and it's business as usual at Bantaba World Dance and Music, located in North Boulder's Holiday neighborhood. The large, open windows at Bantaba offer a scene that no street pedestrian can ignore. Reflected in the wall-length mirrors are businessmen, middle-aged moms and 20-somethings practicing their forward and backward basic movements in a beginning salsa class.

But upon closer inspection, the Bantaba dance scene shows a different picture. An enormous "for sale" sign sits in one window. An accompanying two-page letter from Bantaba owners Jenny and Sam Gill explains the terms of Bantaba's sale. The letter reads:

Bantaba moved to North Boulder believing in the city's vision of new urbanism and mixed-use housing. We believed that to bring the cultural arts to this new community would add significantly to the quality of life and especially to ethnic, racial and gender diversity. Because Bantaba has served these community interests for more than seven years, it is disheartening and disenchanting to be forced to close our studio.

Since its May opening, Bantaba dance studio has been the subject of several noise complaints by upstairs neighbors and three noise tickets issued by the city. The complainant associated with all the noise tickets did not respond to Boulder Weekly's requests for an interview.

How the dance studio went from a successful business to being "forced to close" in six months is the topic of great consternation for Bantaba owners. On a basic level, Bantaba's demise was the result of a bitter dispute never resolved between neighbors. But the picture grows more complicated when one considers the role that the city played—and perhaps could have played—in resolving or even preventing the dispute.

According to Bantaba's lawyer Ed Byrne, the business found itself in "the perfect storm" of unfortunate oversights. As the city of Boulder gears up for more mixed-use development, Bantaba's story serves as a cautionary tale for business owners and residents considering mixed-use real estate.

"Gauging the way it evolved, there were [missed] opportunities at the front end that led to the worst of all possible circumstances," he says. "Both sides really felt imposed upon."

Slipping through the cracks

In 2005, after seven years at the Table Mesa Shopping Center, Jenny and Sam began looking for a new location for their business. Founded in 1999, Bantaba had grown into a popular source for African music, drumming and dance instruction in Boulder. When the Gills saw a space for sale in the Holiday neighborhood, a mixed-use development, the location seemed like a natural fit.

"We wanted this to be a community center," says Jenny. "We visualized having doors-open events where families could walk in off the street. [We could] have a kid's program after school."

The property on Yellow Pine Avenue consisted of a large, 1,200-square-foot open space with an adjoining reception area on the first floor and three condominiums on the second.

The Gills' desired property was zoned for offices and personal-use services like chiropractors and naturopaths, but not for a dance studio. In July 2005, they contacted the city to begin a Land Use Review application that would enable them to inhabit the space.

Environmental Zoning and Enforcement Officer Terry Steinborn, who was involved in Bantaba's Land Use Review in 2005, had prior experience with the business. Steinborn had been called out to Bantaba's Table Mesa location several times to investigate noise complaints from commercial neighbors. Every time Steinborn went to investigate, she remembers saying the same thing: "I said, 'I'm sorry that you can't do business in your store. You're in a commercial zone,'" she says. "They have a higher decibel range."

More specifically, commercial zones have a 65-decibel limit. Bantaba was loud but never exceeded the limit, says Steinborn. In Bantaba's newly proposed space, which was not commercially zoned, Steinborn and the Gills agreed to a 45-decibel limit. Bantaba would be subject to additional noise ordinances in its new location, due to the fact that it shared a building with residences.

From July to December 2005, the Gills worked with the city for land use approval. The two parties conducted sound readings in the upstairs apartment adjacent to the dance studio to determine sound limits. The Gills agreed with the recommendations from Steinborn and Steve Brown from the planning department about what sound attenuation materials should be installed to stay within the 45-decibel limit. The city held a neighborhood meeting for anyone near Bantaba's proposed studio location to question the use permit.

"They had a two-week open forum where anybody could say 'no' at that time," says Jenny. "That would have canceled our use review."

Gill says that most neighbors were excited about Bantaba's potential move. One neighbor across the street from the proposed studio location expressed concerns in written form about noise problems. Sam remembers encouraging the city to make sure that the neighbor's concerns were addressed; strife was the last thing he wanted.

In December, the city approved the Gills' use permit, which included a list of restrictions on everything from Bantaba's hours of operation to the amount of African drumming to the decibel limits. According to Liz Hanson, who worked as Bantaba's case manager in the 2005 use-review process, the city's approval was hinged on Bantaba meeting all the restrictions in their use-review contract—called "performance standards."

"It's kind of an 'if, then': If you meet these certain standards, then it would meet the use-review criteria," says Hanson. "With the performance standards set and the information the applicants gave us in terms of how they were going to run the facility, we felt it would be an acceptable fit."

Having encountered few obstacles and nothing but green lights, the Gills began to develop their newly purchased property. During that time, the neighbor directly upstairs from the dance studio contacted Jenny, who says she was concerned by the conversation.

"She called me and said, 'Wow, I didn't know you guys were going to be here.' I said, 'Yeah, we've been going through this process for a long time.'"

Then, the neighbor asked what the Gills were doing for sound attenuation.

"We're doing everything that's required by the city," said Gill.

At the time, Jenny assumed that the city would stand behind Bantaba because it had completed a good-faith effort to install all required sound attenuation materials.

The Gills grew more worried the first night they hosted a performance event in their new studio. That night, they heard from the same upstairs neighbor, who appeared frustrated and asked Jenny to come to her apartment and listen to the noise level.

"There was no question that the sound was unbelievably loud in the upstairs apartment," says Jenny. "You could feel the vibration on the floor, and you could hear the music."

At that point, Gill says she tried to allay her neighbor's concerns.

"I was just trying to reassure her and be like, 'Hey, I'm not trying to be crazy.' I definitely wanted to work it out."

At the time, Jenny remembers being overwhelmed with the impending conflict. Despite the neighborhood meetings and the city's careful review process, Bantaba's neighbor directly upstairs of the dance studio—perhaps the most important party in the entire review process—had slipped through the cracks.

"That's the whole thing," says Gill. "Her realtor didn't tell her. Somehow that was never communicated. She had no idea."

While it wasn't the last time they would hear complaints from their upstairs neighbor, the Gills never talked directly with her again.

Quiet enjoyment of the home

The situation declined rapidly for the Gills in May after their initial encounter.

On Sat., May 6, Bantaba held a neighborhood grand opening event at their studio, which included a live salsa band and about 200 guests. Jenny remembers leaving a note on her neighbor's door.

"I asked her not call the police because it was a one-time event," she says. "I invited her to join us."

Steinborn responded to a noise complaint that evening and took noise readings in the apartment directly above the dance studio. At the time, the sound measured 52-59 decibels—well above Bantaba's 45-decibel limit. Steinborn notified Sam about the violation that evening and issued a verbal warning.

Sam says he was surprised to have problems immediately upon opening and began looking into sound attenuation measures.

"We were flabbergasted," he says. "We had been planning to open this business for a year and the first week we started having these problems. We were trying to figure out what to do in terms of sound attenuation."

But the problem got worse. On May 10, Bantaba received its first noise ticket for a noontime salsa class, which disrupted the "quiet enjoyment of the home." The responding officer did not measure the decibel reading and wasn't in the complainant's apartment during the class.

The Gills were surprised that they could be written a noise ticket that didn't violate their decibel range and was based on a subjective judgment.

But Boulder's noise ordinance says that it's illegal to engage in loud behavior that bothers a person in their residence. The ordinance is purposely vague, and there is no sound-decibel limit.

While the code is more subjective than other Boulder noise ordinances, Steinborn says that "quiet enjoyment of the home" is based on a "reasonable person's standard" of what is annoying. The ordinance is intentionally open to allow for some flexibility, she says. Steinborn says that the noise in the apartments above Bantaba would be annoying at any time of day. Everything vibrated with the music—dishes on the counter, plants, water in glasses. It was difficult to have a normal conversation at a reasonable level, she says.

"I found that one of my judgments when I sit in people's apartments [is] 'Would I be disturbed by this if I were trying to watch TV or having a dinner party,'" she says. "Every time I was up there, I found it absolutely disconcerting and unreasonable. I thought this situation was unlivable."

After Bantaba received its initial ticket, the city suggested mediation between the complainant and the dance studio.

Jenny says she hoped to get clear guidelines from the complainant for her daily studio operations.

"'Are we indeed outside our 45 decibel range?' That's what we were hoping to do with mediation," she says. "[We wanted] to have someone actually upstairs with a noise reader measuring how noisy it was up there and giving us a gauge to work with on the stereo," she says.

The mediation service contacted the complainant on several occasions, but never received a response.

During this time, Sam and Jenny say they continued to operate their business as usual. Steinborn says the city received complaints after the first ticket, but held back until the outcome of mediation was clear.

In July, after an unsuccessful attempt at mediation, Bantaba received two additional noise tickets from the city for disturbing the "quiet enjoyment of the home." Both tickets were from the same complainant as before, and both were issued during African drumming classes.

Jenny says that the drum-accompanied African dance classes were much worse than the stereo classes.

"Hands down the drumming is like 56-68 decibels in her apartment—it's loud up there," she says. "But we were approved [for drumming]—it said that in our use review. Again, we're approved for something that we're not allowed to have."

After the two tickets, the Gills had no choice but to suspend Bantaba's African drumming program. The change was a blow to Bantaba's business, says Jenny. Not only did the business lose customers, but African dance and drumming was a big part of the dance studio's identity.

"It was part of my life and something that I care so much about," says Jenny. "It was terrible to have to cancel that and stop working with those people who we helped come to this country."

During this time, the police patrolled the neighborhood around Bantaba daily, creating more stress for Sam and Jenny.

The Gills say they felt hung out to dry by the city. They considered additional sound attenuation materials that cost thousands of dollars. However, given the lack of participation from complaining neighbor and the subjective nature of the "quiet disturbance of the home" ordinance, they felt there were no guarantees that matters would improve.

"We begged them to come in and do sound measurements above and below," says Sam. "The only time they did that was during the summonses. That's the only way we knew how much sound was being attenuated—if someone would measure it in the studio and measure it in the residence."

No closure

The city and the Gills were at loggerheads. With no progress in sight, Steinborn wrote a memo in mid-July to the city planning department.

"I needed to update the planning department on what was happening," she says. "I needed direction on where to go."

In the memo, Steinborn detailed the areas where Bantaba was out of compliance with its use review, listing known issues like Bantaba's three noise summonses. Steinborn included new issues, such as Bantaba holding classes until 9:15 p.m. (The studio agreed to 9a.m.-9 p.m. for dance classes) and the fact that Bantaba only had one location (the use review stated that Bantaba "would expand to a second location").

Steinborn also listed the African drumming as an issue, stating that Sam told her as early as May 18 that Bantaba had suspended the African dance classes.

Gill says he doesn't recall the conversation.

"I simply don't remember that conversation at all. It's incredulous to me that I would tell an environmental enforcement officer something that I never planned to do," he says. "It was a misunderstanding if nothing else."

The Gills received a letter from the planning department on July 25 outlining the issues in which they were out of compliance. Because the city couldn't get resolution on the noise issues, Sam says he feels that the non-noise-related use violations were tacked on by the city as a way to push Bantaba out of its location.

"I can just imagine a meeting where they say, 'OK, we've got to get this resolved, so what do we do?' Terry Steinborn combs the use review and finds anything she can find, and then those got piled onto our other tickets," he says. "At that point, we had no where else to go."

Two days later, Sam and Jenny met with city officials, including Steinborn.

While there had been issues in the past, the Gills communicated at the meeting that they thought they were completely in compliance. They had taken measures to reduce the noise, including removing speakers from the wall and wrapping some ceiling pipes in sound attenuation materials. They had stopped their African drumming classes on July 14, and they no longer held classes past 9 p.m.

Jenny remembers being mystified at what Bantaba was doing wrong.

"At that point we asked, 'How are we not in compliance?'" says Jenny.

"Terry [Steinborn] said, 'I was out there the other night, and I took a reading of the Samba dance class and you guys were under 45 decibels. But I would still write you a ticket because it was annoying.'"

Sam says he remembers being frustrated because he couldn't get a straight answer about what else he needed to change.

"We just kept pushing and pushing, and they just kept being vague," says Sam. "We left frustrated."

Noise issues at Yellow Pine continued on July 31, four days after the meeting, when Gills' upstairs neighbor contacted the police with a noise complaint. The responding officer did not issue a ticket, but documented the event.

"[The complainant] advised that the studio has stopped playing music with large amounts of drumming in it, but the music still bothers her," wrote the responding officer.

In August, the city combined the Gills' three "quiet enjoyment of the home" violations with its land-use violations and arranged for a September court date. The Gills hired a lawyer, Ed Byrne, who began working with the city.

Byrne says he told the city in August that additional sound attenuation measures by the Gills had been completed. It took a month before Byrne was able to meet with Steinborn to measure whether the changes made a difference for the residents upstairs.

Meanwhile, the police were contacted two additional times by the complainant on Aug. 7 and 10. Police responded, but no tickets were issued.

"The Gills were frustrated because they felt that it didn't matter what they did, they could be charged for violating the subjective disruption of 'quiet enjoyment of the home' ordinance," says Byrne. "They believed that the situation had improved, but they couldn't get inside the apartments above them to measure it."

Finally, the night before the Gills' court date, Steinborn and Byrne tested the sound attenuation materials and calibrated Bantaba's studio with the apartments upstairs. The primary complainant was out of town for the weekend, so sound measurements were taken in the apartment adjacent to the complaint's apartment.

"The woman living there believed that the situation was better—she was satisfied," says Byrne. "We never did get closure with the other person."

More strife

In mid-September, the Gills entered into a plea with the city. Bantaba paid a few hundred dollars in court fees, and the judge postponed their fines from the three summonses. If Bantaba is convicted for noise complaints in the future, then the Gills will have to pay the fines.

Janet Michels, the prosecuting attorney for the city, says even though the court case is now resolved, there's no guarantee for the Gills that they will be able to avoid "quiet enjoyment of the home" tickets in the future.

"It's not the noise alone that gives rise to the violation. It's not possible to say, 'If you have this number of decibels, you won't have issues again.' That's what the Gills wanted, and I can understand why they wanted that," she says. "The way the ordinance is written, they couldn't have gotten that kind of guarantee."

It didn't make sense to the Gills and Byrne why Bantaba had significantly more noise issues with its neighbor directly upstairs. Byrne says he considered the construction of the building as a potential source of the unpredictably loud noise. The apartment directly above the dance studio had the same layout as another upstairs apartment, but had significantly more sound—like a drum membrane, he says.

"The original plan showed concrete floor. If [the construction company] ended up building something different than that, all of the sudden the sound characteristics and sound transmission would change dramatically," he says.

Unfortunately, the documents pertaining to Bantaba's space were destroyed after the final building inspection took place, says Byrne, which is common practice within city governments.

The Gills were at the end of their rope. They were overwhelmed with a difficult neighbor and city officials they felt were unresponsive, but they only had themselves to blame.

Perhaps most frustrating for the Gills, says Byrne, is that there is no smoking gun.

"There's no point in this process where you can say, 'That's the person who's at fault,'" he says.

Boulder stands to learn several things from Bantaba's mixed-use debacle, says Byrne. Mixed-use apartment seekers should know exactly what they're getting in to. In the case of Bantaba, there were opportunities missed by the city at the very beginning to alert the resident of a potentially disturbing situation, he says.

"Sam and Jenny applied for their use permit in July [2005], and the woman purchased her unit in September [2005]," says Byrne. "Somewhere along the way, that might have been possible."

When problems do arise, having open lines of communication between parties is important, says Byrne. State-of-the-art soundproofing is also imperative in mixed-use construction, he says.

When asked if the city should have approved Bantaba's permit in 2005, Steinborn says that all parties involved in the use review process were overly optimistic.

"I really honestly believe that everyone involved in this process did the best that they could with the information they had at the time—I think that everyone did," she says. "But it comes to a certain point that the reality didn't happen the way we had hoped and guided it toward."

When conflict arose, Jenny says she feels that the city could have done more to help bring neighbors together.

"The city should have said, 'We value the arts, we want to try harder to resolve this problem without causing more strife,'" she says. "I felt very uncomfortable talking to her. She obviously felt very uncomfortable talking to us—so we did need someone to help us talk."

However, Steinborn says that the complainant didn't see mediation as a viable option. The complainant chose to forgo mediation with the Gills because she felt like the Gills knew exactly what they needed to change.

"There was a lot of consternation about the mediation process when they weren't in compliance with other conditions of the use review," says Steinborn. "[There was a feeling that] if they're not in compliance, why are we sending complainants to mediation to say, 'Let's work out some kind of compromise'? That didn't seem to be the appropriate recourse at that time. And, pretty much time went by."

Sam Gills says he has a hard time believing that the complainant gained such detailed information about Bantaba's compliance without the help of the city.

"The only way she could have gotten that information at all is if Steinborn or the city would have informed her," he says. "The city has bent over backwards to serve her every need, but they didn't help us."

Highlighting the disconnect between the city and Bantaba, Sam reiterates that his business was never given a chance to calibrate an acceptable operating level for his business vis-ˆ-vis the neighbor above the dance studio.

"Instead of having the opportunity to say, 'Let's do tests and work at this process,' we were told, 'You have to do something.' I kept saying, 'We need to know what our target is before we do that," he says. "If we can't meet our target, why pour money into a business that we need to close?"

As it turned out, closing Bantaba's Yellow Pine location was exactly what Sam and Jenny had to do.

Lingering questions

After six months of operation at Yellow Pine Avenue, Bantaba World Dance and Music never made money. The Gills are in the process of selling their studio, but they say they're having a hard time with prospective buyers because of the known issues with neighbors and noise.

Jenny says that she and her dad plan to rent space for a few hours from another location, and will also start a nonprofit, called Salsa Amigos, which will teach salsa dance classes to kids throughout the region.

"Sam and I are like, 'Hey, so it didn't work out. Let's just sell the building and move on.' We don't want to fight the city in court," she says. "We don't have the emotional withstanding to be able to work here every day and teach and be happy with people."

For Sam, the end is bittersweet. He says he's begun to make amends with the city, and recently met with City Manager Frank Bruno, who expressed his regret about Bantaba's plight.

While he says he appreciates the city's gesture, what Sam says he wants most is his day in court. Gill says he wishes he could confront the primary complainant with the Holiday neighborhood noise agreement, which all neighborhood residents must sign. The agreement says, "Owners may be impacted by noise, vibrations, odors and other inconveniences from allowed uses within this project."

When it comes to mixed-use living, Sam says he will always question the subjective nature of the "quiet enjoyment of the home" ordinance. He wonders whether people who live in mixed-use neighborhoods should have different expectations for noise—and whether the city should have different standards for noise enforcement.

In the case of Bantaba, he and Jenny sank their wealth into a project that now seems to have been doomed from the start. Though they feel they did their best to resolve the conflict, they felt that the city approved them—and then let them fall flat on their faces, without so much as a chance to meet with their primary accuser.

"What we're talking about is reasonableness," he says.

Respond: letters@boulderweekly.com