The proposed merger between the Canadian Pacific (CP) and Kansas City Southern (KCS) railways, if approved by the Surface Transportation Board (STB) of the Environmental Protection Agency (EPA) in the coming weeks, will mean increased levels of downtown train activity, especially in Davenport.
Present levels of traffic are already noticeable – some would say inescapable. A Riverpalooza performance the evening of 4 August, for example, was interrupted by three trains, each taking approximately five minutes for them to travel past. Imagine being present for the two hours of the show, and having to put up with 15 minutes of train. Not a lot of fun there.
Even in so-called “quiet zones,” people still have to contend with noise, in the form of screeching brakes and whistle-signals. Should you own, say, a restaurant near one, imagine the nails-across-the-chalkboard feeling through which you and your patrons would have to suffer.
We are offering a look into the existing noise ordinances of the Quad Cities to see what insights they may offer about the wider disruptions for which the populace should brace themselves. There are so many variables about the merger one may consider – the effects of increased traffic stops, and blocking riverfront activities from emergency response vehicles more frequently being two such. We have limited ourselves to noise ordinances because they deal with matters that, when they occur, cannot be ignored. In the most extreme cases, even the confines of one’s home provide inadequate insulation. So what do the civic oracles say for us?
The Bettendorf City Code addresses noise ordinances in 5-5A-9: Noise Limits from Certain Sound Sources in Chapter 5 (Offenses) under Title 5 (Police and Public Safety). The Code defines “Noise Disturbance” as “any transmission of sound across a real property boundary which exceeds the sound level limits set forth in Table 1, ‘Maximum Permissible Sound Levels from Sources by Receiving Land Use’” (below).
Not surprisingly, businesses get their “Get Out of Jail Free” card from both 11-2-7: Commercial Use Types and 11-2-9: Industrial Use Types in Chapter 2: Use Types. What’s missing is an amendment that protects CP/KCS from liability based on the levels of noise disturbance their trains bring with them.
No such noise-mitigation language has been put forward by the Bettendorf board, even after they approved the merger on August 2, having agreed to accept $3 million from Canadian Pacific toward assuaging noise and safety concerns, including intersection upgrades. Are they waiting to see what is done with the proposal in Davenport? If so, then things are about to get very confusing.
Chapter 8.19, “Noise Abatement,” the Davenport Code defines “noise disturbance” as “any sound which Endangers or injures the safety or health of humans or animals; or annoys or disturbs a reasonable person of normal sensitivities; or endangers or injures personal or real property.” It provides an Exemption in 8.19.060 under Section C (“Rail, air transportation, and public mass transportation vehicles”) for a company such as Canadian Pacific.
Canadian Pacific began negotiating with Davenport in November 2021 in anticipation of its merger with Kansas City Southern, “to make a community investment in Davenport to help with any issues that may arise from an increase in rail traffic” (according to the August 10 “Motion approving Community Investment and Settlement Agreement with Canadian Pacific Railway Company and authorizing the City Administrator to sign the same. [All Wards].”) Canadian Pacific promised a $10 million payment, with $8 million “to be used as the City determines best,” and a $2 million “project-specific payment.” Per the motion, “The discretionary $8,000,000 will likely fund infrastructure related to rail/pedestrian/vehicle noise concerns, such as establishing a quiet zone from approximately Mound Street to Marquette Street among a range of other projects.”
Beyond the quiet zone, City Manager Tiffany Thorndike has said that there weren’t any motions in the works concerning the amending of noise-variance levels. This absence was reflected in the Subject to Settlement Privilege (Rule 408) form, which requires city council approval. Although the topic was brought up and discussed by Lori McCollum at the Council meeting, this occurred during the public-discussion period, and wasn’t advanced by any city council person. (McCollum is a private citizen.) After having heard 10 members of the public air their reservations, Mayor Mike Matson said, “I believe the City Council’s role and obligation does not find itself in the position where the merger moves forward [without Davenport’s participation], and we have zero dollars invested by Canadian Pacific in our city. That outcome would be completely irresponsible, in my opinion.” “At the end of the day,” Mayor Matson concluded, “the risk is, do we take the $10 million, [and] invest in the money on the Riverfront for [environmental-impact] mitigation, or risk the possible zero?” (Davenport.granicus.com/MediaPlayer.php?view_id=1&clip_id=1228)
Having been persuaded by the findings of the Office of Environmental Analysis that, “apart from train noise, which could result in adverse impacts in some locations, the potential impacts of the proposed acquisition would be negligible, minor, and temporary,” Mayor Matson ceded the mic to Alderman Kyle Gripp. Gripp summed up Matson’s position: That Davenport’s support or rejection of the merger was one very small piece of the puzzle, given that it is the STB, and not the city council, to approve or reject the merger; that the STB was likely to vote to approve it; that if Davenport rejected it and sought arbitration, their reward would likely be quiet zones only, and zero dollars; and that Davenport’s settlement with Canadian Pacific was “a good insurance policy,” rather than getting zilch from Canadian Pacific and funding its own quiet zones, pedestrian crossways, and grade separations out of its Capital Development coffers. “Is it ideal?” Gripp asked. “No. Is it the best deal for the city given the circumstances? I certainly think so.”
Although the majority of the public present pleaded that the city council table the vote until September 13, Mayor Matson motioned for a vote, and every city council member voted to approve it.
In a letter Joshua Wayland of the STB, dated 14 December 2021 (OurQuadCities.com/wp-content/uploads/sites/19/2021/12/DAVENPORT-TRAINS-LETTERpdf.pdf), Matson and the councilors initially raised their own strong reservations about the merger. Three days after the 10 August meeting, after the councilors had been persuaded by Canadian Pacific and voted to affirm the merger, the Scott County Board of Supervisors indicated it was drafting a letter of complete opposition to the merger to STB. Muscatine and Clinton Counties have signaled their own suspicions, with Camanche outright rejecting the merger.
An anecdote concerning a local musician has us wondering how the whole matter will shake out legally. This person specializes in pop-up guerrilla style DJ noise-art performances in front of businesses in downtown Davenport. More than a few businesses have called the cops on him. Since the noise-variance level was declared temporarily void during the Alternating Currents festival, he had a brief window during which no one could touch his industrial squatting. Going forward in time, when the amount of train traffic has trebled, and the noise-levels reflect it, will the DJ even be heard?
In Section 4 of Moline’s Code of Ordinances, the city is categorical across the board when it comes to noise. “If the amplified sound exceeds the noise measurements of Sec 35-5409(d) from any point at or within the property line of the residentially zoned parcel,” it states, “it will be considered a nuisance violation of Sec 22-1100(7) and the sound amplification must cease immediately.” Under Exemptions, “Transportation vehicles in lawful use or transit on designated streets, routes, or ways” aren’t bound under “noise performance standards.” How well that exemption will withstand complaints concerning Sec 21-2103 Remedies [(7) The recurrence of loud and obnoxious noises] remains to be seen, given the Code was drafted when the environment was considerably quieter than it is now (and, with the pending merger, promises to be).
Interestingly, Chapter 3, “Transportation Management and Analysis,” addresses noise levels at Quad-Cities International Airport, but elsewhere, be it ”Roadways” or “Transit,” the issue of business-generated noise doesn’t enter into the language at all. Per City Administrator Bob Vitas, Moline is working on a grant proposal for a quiet zone to run along East Moline into Rock Island (date of confirmation TBD). Since Moline isn’t involved in the Canadian Pacific merger, as their lines do not affect the city’s downtown traffic as directly, it is a passive party to developments across the Mississippi River, and must deal with them however they can.
In East Moline, they take their definition of “noise” as read, and the language, particularly in Section 6-1-20 (“Unreasonable Noise”), proceeds accordingly. The city having once been a part of Moline must have saved it some time when it came to drafting legal language. Like Moline, they have to put up and shut up.
Section 10.21, “Disturbing the Peace,” under Chapter 10, “Offenses – Miscellaneous,” appeals to the dictionary for its definition of noise: “A loud or raucous noise, or loud or raucous talking, or loud or raucous singing on the public streets at any time or place so as likely to disturb the public peace or quiet, comfort or repose of persons in any office, or in any dwelling, hotel, or other type of residence, or of any persons in the vicinity.” Ostensibly, the city code has been invoked to curtail loud music blaring from moving and/or parked vehicles. Judging from his clerk’s explanation, City Manager Todd Thompson isn’t in any hurry to mess with their noise ordinance, but he may respond to it as events change. Given Rock Island's status regarding the railroad merger is much like Moline’s, the city doesn’t really have to respond.
On August 31, however, Public Works Director Mike Bartels stated, "We are early in this process however Public Works is considering quiet zones for 1st Avenue 15-24th Street and would include crossings at 17th,18th, 20th (pedestrian crossing only) and 24th Street. We are working with the Commerce Commission, railroad and consultant however the first step for the quiet zones is to complete the 1st Avenue reconstruction project tentatively scheduled for 2024. The quiet zones for this area will be difficult however due to the switchyard in front of Modern Woodmen. The hope would be to reduce the noise with the understanding that it would not entirely be eliminated."