COUNTY OF ALBEMARLE

 

EXECUTIVE SUMMARY

 

 

AGENDA TITLE:

County Code – Ordinance to amend County Code Chapter 7, Article I, Noise

 

SUBJECT/PROPOSAL/REQUEST:

Public hearing to consider proposed ordinance to amend County Code Chapter 7, Article I, Noise

 

STAFF CONTACT(S):

Messrs. Tucker, Foley, Davis, Kamptner, Miller

 

LEGAL REVIEW:   Yes

 

AGENDA DATE:

July 1, 2009

 

ACTION:     X          INFORMATION: 

 

CONSENT AGENDA:

  ACTION:             INFORMATION: 

 

 

ATTACHMENTS:   Yes

 

REVIEWED BY:

 

 

 

BACKGROUND:

Excessive or unwanted sound (“noise”) has many adverse impacts including physical and mental impairment, impacts on traffic safety, and diminished job and school performance.   

 

Noise is regulated by localities using three approaches: (1) by prohibiting sounds that exceed prescribed sound levels described in decibels and measured using sound meters (the County’s noise regulations in the Zoning Ordinance, which regulate noise generated by land uses, use this approach) (2) by prohibiting sound levels that are audible from a specified distance or location, for a specified period (the proposed ordinance attached hereto as Attachment A would adopt this approach); or (3) by prohibiting noise levels that are loud, disturbing or raucous so as to disturb or annoy the reasonable person, i.e., “nuisance noise” (the County’s current noise regulations in Chapter 7 use this approach).

 

Ordinances based on nuisance noise standards are common throughout the United States and have been upheld in most states.  However, on April 17, 2009, the Virginia Supreme Court struck down the City of Virginia Beach’s noise ordinance, which was based on nuisance noise standards, holding that the language in its regulations was unconstitutionally vague because it failed to inform a person of ordinary intelligence what conduct was permitted or prohibited and because the nuisance noise standards allowed subjective application.  Because of the similarities between the City of Virginia Beach’s noise ordinance and the County’s Chapter 7 noise regulations, the Police Department has held its enforcement of the noise regulations in abeyance while this text amendment was pending.

 

STRATEGIC PLAN:

Goal 1:  Enhance the Quality of Life for all Albemarle County Residents

 

DISCUSSION:

Some forms of sound such as human speech and music are protected under the First Amendment to the United States Constitution.  Accordingly, localities are required to regulate noise based on the time, place and manner of the sound, rather than on its content, and the regulations must be based on objective criteria that are narrowly tailored to avoid claims that the regulations are vague or overbroad.

 

The proposed ordinance would amend the noise regulations and replace the current nuisance noise standards with standards based on the following: (1) the duration of the sound; (2) the distance or location at which the sound is audible; and (3) the time of day during which the sound is being produced.      

 

·         Duration: The duration criterion for daytime noise is proposed to be 5 minutes of continuous sound within a 1 hour period.  No durational time is proposed for nighttime noise.  This recognizes that sound sensitivity is greater at night.  The duration criterion for daytime noise is narrowly tailored to assure that during daytime hours, non-exempt sounds, however brief, do not become a violation.  Impulse sounds, such as explosions, are addressed by prohibiting more than one impulse sound within a 1 hour period. 

 

·         Location: The distance criterion is composed of two parts: (1) audibility from a distance of 100 feet measured either from the sound source or from the property line of the parcel on which the sound source is located, depending on the circumstances specified in the proposed ordinance; or (2) audibility from within a dwelling unit or

hotel room.  The 100-foot distance criterion is one of the more commonly used distances in other localities’ noise ordinances, including the City of Virginia Beach’s new noise ordinance (which is primarily a sound level/sound meter based ordinance) and this distance has been approved by a number of courts as being a reasonable and objective standard that is narrowly tailored for its purposes.  The courts have upheld ordinances establishing audibility as close as 50 feet.  One court struck down a 25 foot distance because normal conversations can be heard at 25 feet and, therefore, the standard was overbroad.  Staff is recommending that the Board adopt audibility at 100 feet as the standard.  The dwelling unit or hotel room standard is intended to primarily address noise problems that may arise in multi-family dwelling units, on multi-use sites (as both those terms are defined in the proposed ordinance), and in areas where single family detached dwelling units are in close proximity to one another and the 100-foot distance criterion would not satisfactorily address the noise problem.

 

Sound that is audible at a distance greater than 100 feet may not necessarily be excessive or unreasonable at that distance.  Sound levels diminish by half each time the distance from the sound source is doubled.  One court has observed that the greater the distance provided in the regulation, the more it is assured that at some lesser distance, the sound is, in fact, excessive.      

 

·         Time of day: The time of day criterion, again, recognizes that sound sensitivity is greater at night.  The 7:00 a.m. and 10:00 p.m. hours are primarily used as the demarcation line for different standards, though certain activities such as solid waste collection, yard maintenance, and silvicultural activities are allowed slightly expanded hours (see Section 7-106) because of the nature of those activities.  The 7:00 a.m. and 10:00 p.m. hours are used in the Zoning Ordinance’s noise regulations to differentiate between daytime and nighttime standards. 

 

Section 7-105(D) contains the sole standard in the proposed ordinance that would be based on sound levels described in decibels and measured using sound meters.  The standard establishes a violation if sound is produced that causes a 15 decibel increase in the sound level above the ambient sound level. It is anticipated that this standard would rarely be used.  This standard exists in the current ordinance and staff recommends that it remain in the regulations because studies have characterized the human reaction to increases in sound pressure levels over ambient levels as “very noticeable” for increases of 10 to 15 decibels and “objectionable” for increases of 15 to 20 decibels.  Thus, the 15 decibel standard prohibits noise that has been characterized as “very noticeable” or “objectionable.”

 

In preparing the proposed ordinance, staff reviewed relevant literature pertaining to noise and its effects, regulations adopted by other localities throughout the United States, and the case law.  To further explain the proposed amendments, staff has attached an annotated version of the proposed ordinance with section-by-section explanatory notes where warranted (Attachment B).

 

The proposed ordinance was forwarded to the Police Department, and the comments of the Police Department have been incorporated into the attached draft. 

 

BUDGET IMPACT:

None

 

RECOMMENDATIONS:

After conducting a public hearing, staff recommends that the Board adopt the attached ordinance.

 

ATTACHMENTS:

A – Proposed Ordinance

B – Proposed Ordinance with explanatory notes

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