Lakewood Hopes Dog Park Will Sit, Stay

The lawsuit brought by the City of Rocky River and four residents of the High Parkway neighborhood against the City of Lakewood and the users of Lakewood Dog Park on a complaint of excessive barking finally had its day in court. Actually, eight days, concluding on July 21. The Honorable Carolyn Friedland of Cuyahoga County Common Pleas Court will make her decision in the case following the recent bench trial – heard without a jury – after thorough review of the court transcript, statements filed by legal counsel in lieu of closing arguments and evidence presented. The court gave no indication how long the decision would take.

Judge Friedland previously dismissed the case, filed in 2007, on the grounds that Rocky River and its residents could not interfere with legitimate municipal functions of their neighbor, Lakewood. The appellate court disagreed with the application of law to this case and returned it to Judge Friedland for a determination on the facts. In the interim, the parties made multiple attempts to negotiate a settlement but were unsuccessful. By agreement of the parties, the trial proceeded solely on the issue of barking, omitting the plaintiffs’ other allegations that the park was a source of foul odors and dog biting.

At trial, Rocky River and its residents maintained that barking from the park, that is tucked away in the valley adjacent to the MetroParks, has been excessive and; therefore, constitutes a public nuisance (“an invasion of, or an unreasonable interference with, public rights which are common to all members of the general public”) and a private nuisance (“it affects the private personal property rights” of the neighboring Rocky River residents). Legal practitioners generally agree that nuisance law is not black and white; there is no bright line separating actionable behavior from benign annoyances of everyday life.

When questioned about a list of various outdoor sounds that continuously surround them, witnesses from Rocky River concurred: cars and motorcycles in the MetroParks, Interstate traffic, loud low-flying jets, passing trains, service trucks, back-up warning alarms, and chainsaws were acceptable background noises to be ignored. Perhaps somewhat arbitrarily, only dog barking was argued to be intolerable. These same witnesses, however, failed to reach consensus as to why dog barking rose to the level of “nuisance,” be it grating, troublesome, unsettling, upsetting, disrupting, disturbing, distracting, irritating, aggravating or simply annoying. These discontented River residents seemed to want to create yet another variety of nuisance theory based on a standard individual to each of them.

Several of the complainants recorded their observations about the Lakewood Dog Park in personal logs and journals, which had been a bone of contention among legal counsel during the pre-trial discovery process. Rocky River’s attorney had contended that he was not obligated to turn these documents over to opposing counsel. When High Parkway resident Eileen Griffin testified that she had prepared her notes, not to refresh her recollection, but as “proof” of the subject matter, the legal beagles began snapping at one another. This culminated in a time-out, an in-chambers conference, a subsequent ruling that forced Rocky River to share these hundreds of pages of documents with Lakewood and more than a half-day delay in the proceedings.

Carol Buddie, one of the co-plaintiffs, testified to having made hundreds of recordings, both audio and video, of sounds from the dog park. Judge Friedland permitted her to choose and play nine video clips to demonstrate the barking at its worst. The clips that she chose ranged in length from twenty-one seconds to twelve minutes. None of the clips corroborated any of the residents’ claims that barking was continuous and always present, that residents could hear barking from inside their houses with the windows closed, nor that all of the barking originated solely from dogs inside the dog park. When asked under cross-examination, Ms. Buddie acknowledged that she made one of her clips on December 5, 2009, during a rally held to protest this lawsuit. The number of dogs in attendance at that rally, held nearby but outside the confines of the dog park, far surpassed the number that would have normally been present on a frigid Saturday morning.

Taking the stand, Rocky River Mayor Pamela Bobst spoke in detail about the city’s other noise issues, especially the problem created by low-flying jets departing Cleveland Hopkins International Airport as well as the city’s ongoing efforts with the Federal Aviation Administration to monitor and abate that noise. One of two FAA noise monitors was, in fact, placed in the High Parkway neighborhood. The mayor also testified about the installation of sound barriers along sections of Interstate-90 that run through her city. If there is any merit to the co-plaintiffs’ assertions that they were not disturbed by any other noise prior to the construction of the Lakewood Dog Park, the mayor’s testimony regarding extensive efforts to mitigate other nuisance noise in Rocky River, including on High Parkway, seems to fly in the face of these residents’ statements. Mayor Bobst expressed sincere disappointment that the two cities were unable to cooperatively and collaboratively arrive at a low-cost or no-cost solution to the High Parkway residents’ concerns.

Rocky River called to the stand several hostile witnesses. An adverse or hostile witness is called by and testifies for the opposing party and is presumed antagonistic. Hostile witnesses may be asked leading questions as if under cross-examination.

Lakewood Mayor Ed FitzGerald testified as a hostile witness about the decision-making process for deciding where the dog park would be located: adjacent to the city’s Waste Water Treatment Plant or in downtown Lakewood at St. Charles Green. He recalled that the downtown location would have posed problems of limited parking and close proximity (less than 75 feet) to residential property, while precluding future development of the plot for commercial use. Despite petitions both for and against each of the locations, then-Councilman-at-Large FitzGerald voted in favor of his preferred MetroParks location, where the dog park currently sits virtually equidistant from the nearest residences of either city.

Other hostile witnesses were Lakewood Director of Engineering Bill Corrigan, who spoke at an early city council meeting against the St. Charles Green location, and former Lakewood Animal Warden Michael Steward, who testified that he, in seven years, never observed canine behavior at the dog park that required intervention.

Edward Walter, an acoustics consultant, had been recently hired jointly by the cities of Rocky River and Lakewood to perform a sound study at the dog park, in the backyards of High Parkway residences and around the valley’s rim. He was called only by Lakewood to provide expert testimony in the dog park matter. When pressed under cross-examination to address a theory of a Blossom Music Center-like "bowl effect," (mentioned in a 2004 internal Lakewood memorandum and oft cited by Rocky River counsel but never substantiated with testimony of the memo's author), Mr. Walter testified that he did not note a "bowl effect" in the dog park. "I would not classify [the dog park] as having an amphitheatrical effect," he said.

Additionally, Lakewood called to the stand numerous dog park supporters from both Lakewood and Rocky River. Marilyn Mulligan, who contributed original artwork and text for a mailing to fellow River residents to protest the city’s use of tax dollars to pursue this lawsuit, had to defend, under cross-examination, the use of the word “malcontents” in the postcard to describe the resident-plaintiffs. These complainers, “Are using my money to try to close a park that I love… There really isn’t excessive barking,” she said. All park-goers who testified noted their positive experiences at the dog park. All similarly acknowledged under oath that dogs do bark there, but rarely for more than an average of 10-15 seconds, when either they walk away from each other or humans intervene. “Society would be a lot better if people worked out their disagreements as the dogs do,” observed Lakewood resident Randy Hrabak.

The City of Rocky River and its co-plaintiffs were represented by Attorney Michael O’Shea. Lakewood Assistant Law Director Scott Claussen and Law Director Nora Hurley represented the defendant, the City of Lakewood.

Karen Karp, of Lakewood, and Kent Cicerchi, of Brooklyn, are co-chairs of the Save the Dog Park Committee of the Friends of the Lakewood Dog Park, Inc., the volunteer organization that maintains the dog park.

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Volume 6, Issue 15, Posted 8:42 AM, 07.27.2010