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Saturday, November 14, 2009

County revisits limits on noise

Roanoke County's noise ordinance was invalidated by a court decision earlier this year.

Almost all of us find some noises annoying.

The thumping bass from the car at the stoplight, the neighbor's dogs who bark all night, the rumble from the manufacturing plant a few blocks away, the rock band at the bar down the street.

And most localities in Virginia have ordinances that prohibit certain types of noises or limit the times of day they are allowed.

The problem is, as many as half of them -- including Roanoke County's -- were invalidated in the spring by a Virginia Supreme Court ruling in a Virginia Beach case involving a bar.

Since then, local government attorneys across the commonwealth have been scrambling to come up with revised ordinances to take into account the court's objections.

The justices said that defining illegal noise as something that would seem "annoying or disturbing" to a "reasonable person" was too vague.

That reasonable person test was a common standard, used in part of Roanoke County's ordinance as well. The April ruling led County Attorney Paul Mahoney to quickly advise the police department not to enforce that provision.

Such vagueness unconstitutionally leaves too much room for "arbitrary and discriminatory enforcement of laws," and offered citizens no firm guidance on whether they are breaking the law, wrote Justice Barbara Milano Keenan.

Consequently, many local governments now are trying to come up with ordinances that will satisfy some residents' demands for quiet, while allowing others to enjoy their music and exercise their trades.

Over the next couple of months, Mahoney and his staff will be working to come up with a couple of options for the board of supervisors to consider, he said last week.

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The issue was highlighted in Roanoke County most recently when some residents of Starlight Lane, a rural road off U.S. 220 just north of the Franklin County line, filed a criminal complaint against a neighbor because of the music -- particularly his drumming -- he and some friends played in his garage.

On Halloween 2008, Steven Durrance and some friends were playing when county police arrived about 5 p.m. and summoned him to court after neighbors filed a complaint with a magistrate.

Police had been called several times before, but Durrance had never been charged.

He plays drums in his church praise band, and isn't a professional musician, only rehearsing and playing for fun with a couple of friends two or three days a week, he said.

Durrance said he had not been playing after 10 p.m., the cutoff point for noises specifically prohibited in the county ordinance, and no police officer concluded he was in violation of the provision prohibiting noise that "annoys or disturbs a reasonable person of normal sensitivities."

In a February trial in General District Court, however, Durrance was found guilty of violating that provision of the noise ordinance and convicted of a Class 1 misdemeanor.

Durrance faced up to a year in jail, but he was fined $2,500 with $1,500 suspended.

In an interview, Durrance said he initially didn't hire a lawyer because he didn't think he was guilty and he had heard that the typical fine for such an offense was $250.

With the steeper fine and a conviction that he believed was unjust, Durrance, who owns a small carpeting company, decided to hire a lawyer to file an appeal.

That was set to be heard in May, but the commonwealth's attorney asked for a dismissal after the Supreme Court's decision in April.

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Mahoney outlined the difficulties of enforcing noise ordinances during a work session with the supervisors in mid-October.

Generally, to make an arrest and obtain a conviction, a police officer must observe a specific noise violation personally. For instance, the officer must hear loud music between the hours of 10 p.m. and 7 a.m., or be willing to testify that noise at other times violated the "reasonable person" standard.

Until the most recent court ruling, the other route to court was the one Durrance took. One or more citizens could file a complaint with a magistrate and testify in court that they were "annoyed or disturbed" by the noises of another.

The solution to the problem will likely be either the delineation of a set of restrictions based on decibels -- the scientific measurement of sound pressure -- or on limiting specific activities, Mahoney said.

He and police Chief Ray Lavinder like the decibel route the least. They told the supervisors sound-measuring devices are expensive, take extensive training and must be continually tested and calibrated. And, they said, they don't take into account that different frequencies of sound -- extreme high or low pitches, for instance -- may be far more irritating than others even at the same decibel level.

The alternative is to require that people not engage in certain behavior. No outside parties after a certain hour, for instance. Or no music any time that is loud enough to be heard more than a certain number of feet from a property line, or apartment wall.

Anda Divine lives half a mile away from Durrance and was one of the neighbors who passed around a petition that 17 signed seeking relief from the noise. They compiled an extensive chronology of dates on which they said they were disturbed by the music.

Divine concedes that Durrance no longer is playing as loudly as before and "it's not as aggravating as it used to be."

But, she said, she can't understand why Roanoke County couldn't have revised its ordinance more quickly -- as Virginia Beach and Blacksburg did, although they took different routes.

The new Blacksburg ordinance, which took effect in September, attempts to prohibit specific behaviors. Virginia Beach measures decibels and has a tiered ordinance based on time of day and various situations.

Mahoney said he has had other items of higher priority to tackle, and he wants to offer the supervisors -- and the public -- options he is confident will stand the test of time or a possible court challenge.

"The last thing we want to do is make it more problematical to conduct a legitimate business operation," or keep a typical garage band from being able to practice, Mahoney said.

"At the same time, we do want to maintain the peace and tranquility of our neighborhoods."

For his part, Durrance said he thinks the "reasonable person" standard stood so long because it made sense for most people.

Now, he contends, "Apparently, we don't have too many 'reasonable people.' "

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