2005-11-24 / Front Page

Council undecided on noise ordinance

By Dotti Farrington

The Town Council was split over what to do about a noise ordinance that has been in development for at least four years, after a 75-minute work session on Nov. 15 at which Assistant Town Solicitor Carolyn Mannis discussed the limitations of any noise regulations.

The town’s two top police officers, Chief Thomas Tighe, currently serving as interim town administrator, and Lieutenant William Donovan, who is serving as interim police chief, both said they would prefer the latest proposed regulation to no regulation at all.

Tighe and Donovan said that having no ordinance would end what little leverage their department might have when any resident files a noise complaint. They said current breach of peace and disorderly conduct laws can be applied, at least in some cases in which noise is an issue. They explained that police officers now respond to complaints with requests for offenders to voluntarily lower the sound level. They said, however, they need the noise law to be able to increase enforcement when there are situations in which violators do not co-operate. Even the disorderly conduct charge is undergoing Supreme Court scrutiny for constitutionality, Tighe added.

The councilors agreed to be prepared to vote on the matter at their regular Dec. 12 meeting. If they agree to have a noise ordinance, a public hearing would have to be conducted, and then another vote taken.

Nine business leaders attended last week’s work session, but they were told it was not intended as a public forum and therefore were not allowed to address the council, except to answer questions asked of them by the councilors.

Council President David Long said he believed the best action would be to have no ordinance, except that he would want to give the police what they said they need. He said he wanted time to think through the information Mannis had presented. He said he was concerned that an ordinance represented a “hollow” effort.

Council Vice President Julio DiGiando was convinced that some anti-noise law is needed and indicated that he was prepared to adopt the latest draft.

Any good noise?

Councilman William Kelly said he too was “closer to agreeing to have” an ordinance because of what Tighe and Donovan said, but he was concerned about how the ordinance could infringe on businesses. Kelly said that he considers music “a part of the ambiance” of the town.

Music at downtown restaurants during the summer season is not the only source of noise complaints, Donovan pointed out. He said parties at private homes are the target of complaints at least as much, if not more. Many complaints unassociated with music have also been made, he noted.

Councilors Michael Schnack and Barbara Szepatowksi were firmly against any measure because they were convinced that any form of an ordinance would create more problems than it solved, and that enforcement would be difficult.

Whether the ordinance would impact community activities was discussed, but a clear explanation of the impact was not made. Such activities include the annual fireworks display, the sounding of the fire horn, and the ringing of church bells. The councilors also reviewed other implications of the proposed noise ordinance, such as how it would effect rubbish and recycling collections.

A downtown resident has complained that rubbish removal included the clashing of empty bottles from local restaurants at 7 a.m. on some days. Other residents have questioned why rubbish removal is conducted anywhere in town at the times it is.

Mannis, who identified herself as an American Civil Liberties Union volunteer lawyer, said her current draft of an anti-noise ordinance is the most defensible in terms of being constitutional, but it nonetheless represents one that is not perfect.

Any complaint about noise would have to be evaluated on the basis of sound meter readings taken at the place of hearing, not at the place of sounding. Based on the training he and other members of the department have had, the place that the sound is measured is a source of general misunderstanding, Donovan said.

Concerns were that the 60 to 70 decibel range can be applied to both ordinary traffic sounds and the human voice. An earlier draft of the ordinance would have set 55 decibels as a limit, and that was determined to be too low. It was noted last week and at previous sessions that vehicular sounds, including for at least some construction equipment, is regulated by state laws and would not be subject to the town code.

The councilors noted that the town of Newport has banned straight pipes on motorcycles, but did not discuss how such limits would be imposed in town.

At one point, Szepatowski was teased by her colleagues because she has expressed a liking for motorcycle sounds, but specified she opposes the noise associated with Jet Skis.

The town has a long-standing noise ordinance on its books, but the ordinance has been pronounced unenforceable by the current group of town solicitors.

The Mannis draft limits noise by decibel level as measured by decibel meter, as specified by the American National Standards Institute. The limits are a maximum of 75 decibels at all times in all areas of town, with the lower limits of 60 decibels between 10 p.m. and 8 a.m. in residential and open space districts and 70 decibels between 8 a.m. and 10 p.m. in those districts.

The law would be enforced by local police, not by the zoning and building official, as had been done at some times in the past.

Violations would be subject to a written warning on the first offense, a $25 fine for the second offense, and a $100 fine on the third and each subsequent offense.

Mannis had cited a deterrent to noise laws as the penalty if an alleged violator is found not guilty. She said the town would be required to pay legal fees for the person found innocent as well as its own legal costs.

She and the police officers also predicted that the passage of the ordinance would invite complaints, sometimes by neighbors, “using it as a sword” and complaining about uneven enforcement. The police would be able to use some discretion over enforcement, and the town cannot be sued for non-enforcement, she said.

In response to council questions about whether an ordinance is “really needed,” Mannis said that people with complaints could use civil law suits to pursue alleged violators, via tortes about general nuisances. She suggested that an ordinance represents the town “inserting itself between neighbors.”

The councilors also reviewed their perceptions of necessary versus frivolous sounds.

They agreed with Szepatowski that “rubbish collection sounds are necessary but changing truck size or schedule does not make sense.” She added, “I love motorcycle sounds but are they necessary? How would we distinguish (them) from frivolous?”

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