Quiet-List 1997

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Re: Dealing With Noisy Neighbors

  There are benefits and drawbacks to the enforcement of either a nuisance
code or a performance code. 
	A nuisance ordinance is usually enforced by the police department. Under
certain circumstances, noise may be seen as a public health nuisance and can
be enforced by a health department. Nuisance ordinances can be enforced
without a meter or certification. However, in some instances, certification
has bolstered the court-room acceptance of an officer's nuisance
determination. The officer need not return to headquarters for the meter,
losing time and possibly the opportunity to confirm the presence of a
violation. Nuisance ordinances are very flexible in that the enforcement
officer must only state that in his/her opinion the alleged violator was
creating a nuisance or disturbing the peace. The subjective evaluation of
nuisance, which makes enforcement of a nuisance ordinance flexible, is also
the primary drawback of a nuisance ordinance. Some judges simply will not
accept a non-metered nuisance case, particularly when the alleged violator is
a commercial/industrial facility. Also, a judge's opinion of what  specific
sounds constitute a nuisance may differ from the opinion of the officer.
    Nuisance codes regulating noise are routinely struck down as being
"vague" and "overbroad," unless they are very carefully crafted. When
specifically challenged, ordinances prohibiting noises that are "loud and
raucous" or "jarring and disturbing" or "disturbing to a person of reasonable
sensibilities," have a hard time surviving the challenge. Even "plainly
audible" has been struck down, albeit in a particularly poorly reasoned
opinion. The only thing saving many nuisance codes is the fact that the fines
are so low that they do not attract the attention of lawyers.
    Many local governments have adopted and enforce performance codes.  The
performance standards within the regulation specify permissible sound level
limits as measured by a sound level meter in decibels. A performance code
results in less flexible enforcement than a nuisance code, as a noise that is
annoying may not exceed the permissible limits, precluding enforcement.
 However, when the presence of a violation has been established with sound
level measurements, successful adjudication is virtually certain.
    Some sound sources will terminate when an enforcement officer visits the
site, regardless of whether the officer was investigating the complaint as a
nuisance or performance violation. However, without a doubt, the better
prepared an enforcement officer is for his/her case to go to court, the less
likely it is to end up there. A properly executed performance code
investigation is extremely intimidating.
   All of this aside, whatever works in a jurisdiction is what should be
pursued. If "loud and raucous" shuts 'em up - wonderful. Some jurisdictions
have done the tough work of teaching their judges that noise hurts and is a
serious nuisance. These jurisdictions have effective programs enforcing a
nuisance code. I just know that I am kept busy across the United States
helping communities that have given up on unenforceable nuisance codes, and
want help establishing a new enforcement program around a performance code.
    Regardless of whatever type of ordinance is on the books, if enforcement
is lax or nonexistent, there will be no abatement or deterrent.
   Two last points, in the New Jersey Model Noise Ordinance, we have included
a "plainly audible" standard for vehicles and portable sound systems, as a
decibel denominated standard is unworkable for a transient mobile source.
Secondly, it is simply unreasonable to believe that no anthropogenic sounds
whatever should be audible on your property. Much as you have the right to
peaceable enjoyment of your private property, so does your neighbor. If s/he
chooses to lounge in the yard with some fairly low music, that is reasonably
their right. When should the police be called, when the neighbor is playing
Mozart's String Quartets or Bone Thugs and Harmony? That would play well in
court. A decibel standard is completely blind to content.

Eric Zwerling
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