COUNTY OF ALBEMARLE
County Code – Ordinance to amend County Code Chapter 7
Set public hearing to consider proposed ordinance to amend County Code Chapter 7 to revise regulations pertaining to noise and to change references to County departments and officers
Messrs. Tucker, Foley, Davis, Kamptner, Miller, Graham, and Ms. McCulley
LEGAL REVIEW: Yes
May 13, 2009
ACTION: X INFORMATION:
Traditionally, noise has been regulated by ordinances based on one or more of three approaches: (1) by prohibiting sounds that exceed prescribed sound levels, measured in decibels, and monitored by using instruments (the County’s Zoning Ordinance regulates noise generated by land uses under this approach); (2) by prohibiting noise levels that are unreasonable and which are measured by determining whether the noise is a nuisance to a reasonable person (County Code Chapter 7, Health and Safety, regulates noise under this approach); and (3) by prohibiting sound levels that are audible from a specified distance or location, for a specified period, as determined by a person with normal hearing.
The noise regulations under Chapter 7 regulate nuisance noises, including but not limited to noises created from: (1) motor vehicles and motorcycles; (2) sounds from electronic devices such as radios, televisions, musical instruments and sound amplification equipment generated from cars, private property and places of public entertainment; and (3) sound generated near institutions such as schools, courts and hospitals. Compliance with Chapter 7’s noise regulations is determined by the sound’s impact on the recipient of that sound using standards such as “unreasonably loud, disturbing, raucous or unnecessary noise” and noise “which unreasonably disturbs or annoys the quiet, comfort or repose of any person” (hereinafter collectively referred to as the “nuisance noise standards”). Chapter 7 also prohibits the creation of sound which causes a 15 decibel (A-weighted average) increase in the sound level above the ambient sound level.
Goal 1: Enhance the Quality of Life for all Albemarle County Residents
The nuisance noise standards established in Chapter 7 are similar to standards utilized in noise ordinances that have been adopted in approximately 73 other Virginia localities, including the Cities of Virginia Beach and Richmond. Ordinances using nuisance noise standards similar to those in Chapter 7 also are common throughout the country and have been upheld in most states. On April 17, 2009, however, the Virginia Supreme Court struck down the City of Virginia Beach’s noise ordinance, holding that the language in its regulations was unconstitutionally vague because it did not inform a person of ordinary intelligence from knowing what conduct was permitted or prohibited and because the City’s nuisance noise standards allowed subjective application. Because of the similarities between the language of the City of Virginia Beach’s noise ordinance and the County’s noise regulations in Chapter 7, the Police Department was immediately informed of the Virginia Supreme Court decision and advised not to charge any person under Chapter 7’s noise regulations, except for sounds prohibited by exceeding the 15 decibel standard, until Chapter 7 is amended. Other localities throughout Virginia with similar ordinances have reacted similarly.
The proposed ordinance would amend Chapter 7 and replace the nuisance noise standards with objective standards that do not require sound levels to be measured by instruments but are instead based on one or more of the following standards: (1) the duration of the sound; (2) the distance at which the sound can be heard; and (3) the time of day during which the sound is being created. County staff has not completed its research of the appropriate duration, distance, and time of day for the sounds prohibited in sections 7-104 and 7-105, but the attached draft ordinance provides a framework as to how the regulations would be amended. For example, music emanating from a parked car could be a violation of Chapter 7 if it was audible from a distance of 100 feet for any duration. In the alternative, the applicable standard could be further refined so that a sound would be prohibited if the sound was audible from a defined distance for a specified time period. With this approach, the general nuisance noise standard in section 7-104 would make some or all of the specific nuisance noise standards in section 7-105 unnecessary. Another issue requiring additional research is establishing a reasonable standard for determining the audibility of noise within a building, particularly a dwelling, generated from an outside sound source or an adjoining or nearby dwelling. The attached draft proposes that audibility within an occupied structure would be based on the structure’s doors and windows being closed, but further research is required.
The proposed ordinance also would amend Chapter 7 to revise the references to County departments and officers so that they conform to current department names, officer titles and assignments and make other necessary technical changes.
While the animal noise regulations in Chapter 4 are distinct from the Chapter 7 noise regulations, the animal noise regulations use the same “reasonableness” language used in Chapter 7. The Police Department has been advised not to charge any person under the animal noise regulations until Chapter 4 is amended. Staff will be presenting an update on the County’s animal regulations in June, and a discussion of the animal noise regulations will be part of that review.
Staff will complete its research and consult with other localities and then recommend specific standards to be incorporated into this ordinance framework.
Staff recommends that the Board set a July 1, 2009 public hearing for the attached ordinance.
A - Proposed Ordinance (Chapter 7)
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