- Last Updated on Wednesday, 30 June 2010 05:00
- Published on Wednesday, 30 June 2010 05:00
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Resident’s emergency injunction denied
Three months ago, on April 22, council approved changes to Ordinance No. 585, Amendment to Town Code of Ordinances, Article III, Noise Ordinance, which were recommended by the Public Safety and Economic Development committee, with the understanding that this was a “temporary measure,” as noted by committee chair Karen Payne.
The amendment deleted Section 15-26, Loud Noises Prohibited or “plainly audible” standards; Section 15-27, Exemptions, such as fire alarms, athletic contests, and school bands; and Section 15-28, Penalty and Enforcement.
What is left is: Replacement Section 15-26, “Loudspeaker permit required,” which makes it unlawful to make amplified sound without first having received a permit from the town manager; and, replacement section 15-27, “Issuance of loudspeaker permits,” which directs residents and businesses to make application to the town manager accompanied by a fee of $50 for every day the permit is required.
The new pay-to-permit noise ordinance has caused an overwhelming outpouring of comments from citizens and businesses in light of the fact that there are no time restrictions and no measurement of noise language contained in the ordinance. Also troublesome to citizens is that there is no separation of residential noise and commercial noise in the ordinance.
Since April 22, 23 residential and commercial permits have been issued by the town manager. One permit was issued to newly elected council member Gary Seeber for an outdoor wedding and a permit was issued to beach resident Kel Hoovler, for an outdoor five-hour practice session for his nine-piece band.
Payne presented another proposed ordinance at the June 24 Public Safety committee meeting that contained plainly audible standards under a civil violation status rather than under a criminal violation status. According to Major Kenneth Blevins, that leaves “no mechanism for police to enforce” other than “written warnings that there may be civil fines.” Blevins further suggested that Payne “find out what is being done through the Municipal League” when crafting yet another ordinance.
A casual dialogue took place between members of the public and committee members with the majority recommending the use of decibel meters. Also mentioned during the discussion by Payne was a “recommendation” of town attorney Andrea Erard that there should be “no permit process” included in a new noise ordinance.
This recommendation may be a result of Erard learning that on June 14 in the Circuit Court for the County of Richmond, an Emergency Petition for Temporary Restraining Order and/or Petition for Temporary Injunction had been made and heard before Judge Harry T. Taliaferro, III, initiated by beach resident Terry Rankin. The hearing on the petition was heard in Richmond County because Westmoreland County was unable to schedule the hearing in a timely manner. Rankin lives next door to Hoovler who had received a permit for his nine-piece rock and roll band for a 5-hour outdoor practice session on June 20.
Rankin maintained in her petition that the town “failed to provide noise mitigation measures to ensure that the decibel levels are not injurious to those in proximity to the loudspeaker system as required under the Noise Control Act of 1972 (U.S.C. 4901 to 4918)” and that the town acted “without any consideration of Westmoreland County Code findings and policy,” which states in part “excessive sound is a serious hazard to the public, health, welfare, peace and safety and the quality of life” and that “it is the policy of the county to prevent such excessive sound.”
Although Rankin’s petition was denied on a technicality, it was entertained by the court and a different outcome could have resulted in an order to shut down and rescind permits issued to both residents and businesses at the beach. Because the existing pay-to-permit noise ordinance does not differentiate between residential noise and commercial noise, any injunction ordered would effectively shut down both types of noise.
Before filing the petition, Rankin had outlined her concerns before council; offered council her research on decibel levels and hearing health concerns; and, in a May 27 letter to council, requested that council provide “direction to the town manager to moderate the effect of the noise on surrounding properties” that “will help ensure that all concerned parties can be accommodated.”