Noise Ordinances SUPPORTING HEALTH & NEIGHBORLINESS IN - - PowerPoint PPT Presentation
Noise Ordinances SUPPORTING HEALTH & NEIGHBORLINESS IN PENNSYLVANIA v.228 SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY OverviewNoise Ordinances Program 1 2 3 4 5 Define noise Health, Safety & Welfare Legal Spectrum
SUPPORTING HEALTH & NEIGHBORLINESS IN PENNSYLVANIA
SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY
v.228
SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY
1
Define noise
2
Health, Safety & Welfare Supports Ordinances
3
Legal Spectrum and Constitutional Factors
4
Noise Ordinances vs. Public Nuisance vs Zoning
5
Sample Ordinances
Concisely Defining Noise
[N]oise is “unwanted or disturbing sound.” Sound becomes unwanted when it either interferes with normal activities such as sleeping, conversation, or disrupts or diminishes one’s quality of life. The fact that you can’t see, taste or smell it may help explain why it has not received as much attention as other types of pollution, such as air pollution, or water pollution… This “annoyance” can have major consequences, primarily to one’s
SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY
A Simple Noise Spectrum
Problem Noise Goal— limiting disruption and interference Quiet ‘Red herring’ Silence
AN ADDITIVE VIEW OF NOISE GOING FROM SILENCE (NO SOUND) TO QUIET (GOAL) TO NOISE (PROBLEM/INTERFERENCE)
SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY
Noise is a Significant Community Issue
Noise contributes to serious health problems, degrades quality-of-life, escalates community conflict, and interferes with fundamental, private-property rights.
SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY
SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY
1
Define noise
2
Health, Safety & Welfare Supports Ordinances
3
Legal Spectrum and Constitutional Factors
4
Noise Ordinances vs. Public Nuisance vs Zoning
5
Sample Ordinances
NOISE LONG-RECOGNIZED AS A HEALTH, SAFETY, AND WELFARE ISSUE
SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY
Pennsylvania Local Government Powers
Default- “Permissive” Act only if authorized
Home Rule Act unless expressly preempted or excluded
Pennsylvania local governments
1. Default ‘permissive’ allows local government legislation only if authorized by the Commonwealth 2. Home Rule charter allows local government to act unless the Commonwealth or other law expressly limits action
SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY
“Dillon’s Rule”
See also Philadelphia v. Fox 64 Pa. 169 (1870)
SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY
NOISE ORDINANCE General health, safety, and welfare
(8 Pa.CS 101 et seq. or 11 Pa.CS 10101 et seq.)
PUBLIC NUISANCE Common law/Statute
(case law, e.g., Muehlieb v. City of Philadelphia, 133 Pa.Cmwlth. 133, 167, 574 A.2d 1208, 1209 (1990); Diess v. Pennsylvania
(Pa.Cmwlth.,2007)); e.g., Health Departments and 8 Pa.CS 3100 or 11 Pa.CS 12320, but also see 18 PaCS 6504 and e.g., 53 P.S. § 66529
ZONING Municipalities Planning Code MPC
(53 Pa.CS 101 et seq)
Usually, municipality needs all three
BASIC METHODS FOR TACKLING NOISE PROBLEMS
MOST MUNICIPALITIES REQUIRE ALL THREE METHODS.
SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY
Noise Problems 1 Noise Ordinance General health- safety & welfare PRIVATE interference 2 Public Nuisance Common law, statutory health, PUBLIC rights 3 Zoning MPC
Health, Safety & Welfare:
… sleep deprivation, diabetes, cardiovascular disease, ischemic heart disease, death, birth defects, ulcers, colitis, migraine headaches, increased blood pressure, increased heart rates, impairment of life tasks, neuroticism, myocardial infarction, elevated cholesterol, morbidity, neuropsychological disturbances, stress, psychiatric disorders, psychological annoyance, and cognitive disruption/impaired learning (children) …
SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY
COHC, Workplace Noise: More than just "All Ears“, NIOSH Science Blog (June 28, 2018).
Problems, Policies and Solutions, Earthscan (2011)
Science, Open Journal of Social Sciences, 10.4236/jss.2017.55008, 05:05, (108-120), (2017) .
(2016)
cardiovascular and metabolic effects by environmental noise, WHO (2018)
life years lost in Europe, WHO (2011)
Occupational Noise Exposure within U.S. Industries and Occupations, American Journal of Industrial Medicine (Mar. 14, 2018)
Pollution Exposure.” Ed. Wim Passchier and Luc Hens. International Journal of Environmental Research and Public Health 12.10 (2015)
The Inconvenient Truth, Forbes (Apr. 11, 2016).
Health Organization, (May 25, 2011)
Natural Health Newsletter, (June 20, 2015)
effects on health, British Medical Bulletin, Volume 68, Issue 1, 1 Pages 243–257 (Dec. 2003).
SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY
disturbance in hospitalized medical patients, Environ Health
awareness of the harmful effects noise has on cognition and health, Monitor on Psychology, American Psychological Association, 46 (July/Aug. 2011)
(WHO), 21-24 (2009)
United States: Developing an Effective Public Health Response, Environmental Health Perspectives,
World of Noise, Anchor (2011)
Environmental Health Perspectives, 122:2, (A58-A58), (2014).
24;8(1):1-24 (1990)
Southern Medical Journal, 287-94, 287 (2007)
auditory effects on health, British Medical Bulletin, Volume 68, Issue 1, 245 (December 2003)
James P, Race/Ethnicity, Socioeconomic Status, Residential Segregation, and Spatial Variation in Noise Exposure in the Contiguous United States, Environmental Health Perspectives, 125:7(Jul. 24, 2017).
1999)(being updated with additional current research)
Handbook (1981)
SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY
SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY
NOISE CONTROL ACT (1972) NOW PART OF THE CLEAN AIR ACT 42 USC §§ 7641 ET. SEQ. QUIET COMMUNITIES ACT (1978) 42 USC §§ 7913 ET. SEQ.
SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY
Federal Recognition
The Congress finds … that inadequately controlled noise presents a growing danger to the health and welfare of the Nation’s population…. [Thus,] the Congress declares that it is the policy of the United States to promote an environment for all Americans free from noise that jeopardizes their health or welfare.
4 2 U S C § 4 9 0 1 ( A ) , ( B ) ( E M P H A S I S A D D E D )
SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY
Noise pollution adversely affects the lives of millions of people. Studies have shown that there are direct links between noise and
include stress related illnesses, high blood pressure, speech interference, hearing loss, sleep disruption, and lost productivity.
S O U R C E : H T T P S : / / W W W . E P A . G O V / C L E A N - A I R - A C T - O V E R V I E W / C L E A N - A I R - A C T - T I T L E - I V - N O I S E - P O L L U T I O N ( E M P H A S I S A D D E D )SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY
Quiet Communities Act (1978) focuses on education and support for States and local governments Suggests broad state/local powers
SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY
SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY
1
Define noise
2
Health, Safety & Welfare Supports Ordinances
3
Legal Spectrum and Constitutional Factors
4
Noise Ordinances vs. Public Nuisance vs Zoning
5
Sample Ordinances
FUNDAMENTAL RIGHT TO QUIET ENJOYMENT OF PRIVATE PROPERTY MAKING NOISE IS A PROPERTY-RIGHTS ISSUE
SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY
Neighborliness
C O M M O N D E C E N C Y A N D R E S P E C T F O R OT H E RS — T H E G O L D E N R U L E
I F YO U ’ R E N OT B E I N G A G O O D N E I G H B O R , T H E R E A R E S T E P S W E C A N TA K E TO E N S U R E T H E P E A C E … .
— P I T T S B U R G H C O U N C I L M E M B E R S ( 2 0 1 5 , P I T T S B U R G H G A Z E T T E ) SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY
I Can Do Whatever I Want With My Property Argument
… T H E D O C T R I N E T H AT E A C H O N E M U S T S O U S E H I S OW N [ P RO P E RT Y ] A S N OT TO I N J U R E H I S N E I G H B O R — S IC U T E R E T U O U T A L I E N U M N O N L A E DA S — I S T H E R U L E BY W H I C H E V E RY M E M B E R O F S O C I E T Y M U S T P O S S E S S A N D E N J OY H I S P RO P E RT Y ; A N D A L L L E G I S L AT I O N E S S E N T I A L TO S E C U R E T H I S C O M M O N A N D E Q UA L E N J OY M E N T I S A L E G I T I M AT E E X E RC I S E O F S TAT E AU T H O R I T Y. …
M U N N V . P E O P L E O F S T A T E O F I L L I N O I S , 9 4 U . S . 1 1 3 , 1 4 5 ( U . S . , 1 8 7 6 ) ( E M P H A S I S A D D E D ) ; S E E A L S O , E . G . , V I L L . O F E U C L I D , O H I O V . A M B L E R R E A L T Y C O . , 2 7 2 U . S . 3 6 5 , 3 8 7 ( 1 9 2 6 ) ; R O B I N S O N T P . , W A S H I N G T O N C O U N T Y V . C O M . , 8 3 A . 3 D 9 0 1 , 1 0 0 1 , 6 2 3 P A . 5 6 4 , 7 2 9 ( P A . , 2 0 1 3 ) ( “ N O I N D I V I D U A L H A S A R I G H T T O U S E H I S P R O P E R T Y S O A S T O C R E A T E A N U I S A N C E O R O T H E R W I S E H A R M O T H E R S . . . . ” ) ; I N R E R E A L E N V A L L E Y F O R G E G R E E N E S A S S O C I A T E S , 8 3 8 A . 2 D 7 1 8 , 7 2 8 , 5 7 6 P A . 1 1 5 , 1 3 2 ( P A . , 2 0 0 3 ) ( “ A P R O P E R T Y O W N E R I S O B L I G E D T O U T I L I Z E H I S P R O P E R T Y I N A M A N N E R T H A T W I L L N O T H A R M O T H E R S I N T H E U S E O F T H E I R P R O P E R T Y … . ” )SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY
Fundamental Right to Quiet Enjoyment
… [ I N D I V I D UA L S ] H AV E T H E R I G H T TO T H E Q U I E T U S E A N D E N J OY M E N T O F T H E I R P R O P E R T Y; A N D T H E I R U S E A N D E N J OY M E N T C A N N OT B E B U R D E N E D …
C H A S E V . E L D R E D B O R O U G H , 9 0 2 A . 2 D 9 9 2 , 1 0 0 1 ( P A . C M W L T H . 2 0 0 6 ) ; S E E A L S O , E . G . , I N R E R E A L E N V A L L E Y F O R G E G R E E N E S A S S O C I A T E S , 8 3 8 A . 2 D 7 1 8 , 7 2 8 , 5 7 6 P A . 1 1 5 , 1 3 2 ( P A . 2 0 0 3 ) ; B A L T I M O R E & P . R . C O . V . F I F T H B A P T I S T C H U R C H , 1 0 8 U . S . 3 1 7 , 3 3 1 – 3 2 ( 1 8 8 3 ) . SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY
A PROPERTY OWNER IS OBLIGED TO UTILIZE HIS PROPERTY IN A MANNER THAT WILL NOT HARM OTHERS IN THE USE OF THEIR PROPERTY….
I N R E R E A L E N V A L L E Y F O R G E G R E E N E S A S S O C I A T E S , 8 3 8 A . 2 D 7 1 8 , 7 2 8 , 5 7 6 P A . 1 1 5 , 1 3 2 ( P A . 2 0 0 3 ) ; S E E A L S O , E . G . , B A L T I M O R E & P . R . C O . V . F I F T H B A P T I S T C H U R C H , 1 0 8 U . S . 3 1 7 , 3 3 1 – 3 2 ( 1 8 8 3 )SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY
Therefore, The Starting Point
1) FUNDAMENTAL RIGHT TO QUIET ENJOYMENT OF PROPERTY 2) FUNDAMENTAL OBLIGATION (DUTY) NOT TO DISRUPT OTHERS
SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY
A Penumbra of Kelo:
Fundamental Limits on Government Taking
T H E C I T Y W O U L D N O D O U BT B E F O R B I D D E N F R O M TA K I N G P E T I T I O N E R ’ S L A N D F O R T H E P U R P O S E O F C O N F E R R I N G A P R I VAT E B E N E F I T O N A PA R T I C U L A R P R I VAT E PA R T Y. . . N O R W O U L D T H E C I T Y B E A L LO W E D TO TA K E P R O P E R T Y U N D E R T H E M E R E P R E T E X T O F A P U B L I C P U R P O S E …
K E L O V . C I T Y O F N E W L O N D O N , 5 4 5 U S 4 6 9 , ( 2 0 0 5 ) . SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY
photo courtesy of the Institute for Justice and used with written permission
… IT IS THE CHARACTER OF THE INVASION, NOT THE AMOUNT OF DAMAGE RESULTING FROM IT, SO LONG AS THE DAMAGE IS SUBSTANTIAL, THAT DETERMINES THE QUESTION W HETHER IT IS A TAKING.“
U N I T E D S T A T E S V . C A U S B Y , 3 2 8 U . S . 2 5 6 , 2 6 0 - 6 7 ( 1 9 4 6 ) .SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY
SINCE 1989, GOVERNMENTS PLAINLY MAY REGULATE NOISE, EVEN IF INVOLVING FIRST AMENDMENT ACTIVITY, USING CONTENT-NEUTRAL, TIME, PLACE, AND MANNER GUIDELINES.
W A R D V . R O C K A G A I N S T R A C I S M , 4 9 1 U S 7 8 1 , 7 9 0 - 8 0 3 ( 1 9 8 9 ) . A L S O S E E C I T Y O F P H I L A D E L P H I A V . C O H E N , 4 7 9 A . 2 D 3 2 , 3 6 , 8 4 P A . C M W L T H . 2 0 0 , 2 0 6 ( P A . C M W L T H . , 1 9 8 4 ) ( L I M I T I N G B U S I N E S S C H A L L E N G E S O F N O I S E , O V E R B R E A D T H D O E S N O T A P P L Y T O C O M M E R C I A L S P E E C H ) .SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY
SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY
1
Define noise
2
Health, Safety & Welfare Supports Ordinances
3
Legal Spectrum and Constitutional Factors
4
Noise Ordinances vs. Public Nuisance vs Zoning
5
Sample Ordinances
IF YOU’RE NOT BEING A GOOD NEIGHBOR, THERE ARE STEPS WE CAN TAKE TO ENSURE THE PEACE . — P I T T S B U RG H C O U N C I L P R E S I D E N T B R U C E K R A U S
SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY
More People & Thus More Potential Noise Conflicts
2018 (est.) 326,766,748 36 2010 308,641,391 34 2000 281,982,778 31 1990 252,529,950 28 1980 229,763,052 25 1970 209,588,150 23 1960 186,808,228 20
POPULATION ALMOST DOUBLED BETWEEN 1960 AND 2018 POPULATION DENSITY ALMOST DOUBLED
BETWEEN 1960 AND 2018
FUNDAMENTAL SHIFTS IN DEMOGRAPHICS TO
AN OLDER POPULATION—1970 ~ 28 AND
2017 ~ 38
SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY
Data US Census
SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY
HIGHER-DENSITY DEVELOPMENT MIXED-USE DEVELOPMENT THEREFORE, NEED NOISE ORDINANCES
INTERCONNECTED METHODS FOR TACKLING NOISE
MOST MUNICIPALITIES REQUIRE THREE METHODS.
SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY
Noise Problems 1 Noise Ordinance General municipal enabling codes/statutes Focus on noise and BEHAVIOR, interference with PRIVATE rights and real property 2 Public Nuisance Common law (and possibly health code as a nuisance but see 18 PaCS 6504) Focus on GENERAL INTERFERENCE with PUBLIC rights, real property, and the community 3 Zoning MPC (Municipalities Planning Code) Focused on property/CONSTRUCTION STANDARDS
Zoning— A Quick Aside
Zoning district definitions, set-backs, accessory uses, screening, and mitigation consistent with zoning BUT Some try to regulate noise through general “performance standards” under zoning Open question whether enforceable
SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY
Borough of Clarks Summit, ZoningProblem?
UNDERSTANDING THE DISTINCTIONS BETWEEN NUISANCE LAWS AND NOISE ORDINANCES
SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY
DIFFERENT STANDARDS, BURDENS,
PROOFS, ETC.
SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY
Noise Problems Noise Ordinance Public Nuisance Law
NOISE ORDINANCE
Immediate problems Timely relief for residents Police enforcement Focused on noise problems Minimal administrative time for local government Hearing before district magistrate Instantaneous or periodic nature makes difficult for Code Enforcement to experience (weekends/nights)
PUBLIC NUISANCE ORDINANCE
Persistent problems/over time Slow notice-and-response system Code Enforcement Officer enforcement General, public nuisance laws cover many areas including dilapidated buildings Significant administrative time for local government Appeals to district magistrate Lengthy time allows for Code Enforcement to experience
SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY
Nuisance Ordinances Typically Broad
TRYING TO ENFORCE EVERYTHING-BUT-THE-
KITCHEN-SINK WITH ONE ORDINANCE NUISANCE LAW DEFINES NUISANCE THEREFORE UNCLEAR RESULTS
SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY
Clarks Summit Borough No. 2009-04 http://clarkssummitboro.org/documents/2009- 04%20nuisance%20ordinance%20- updated%20May%2009-%20passed.pdf Nuisance Ordinance Example―An Attempt at Fiat Fails
§101. Purpose. The purpose of this Ordinance is to declare certain actions as public nuisances; to prohibit the existence of dangerous buildings and structures; to regulate burning; and to abate other public nuisances in
property values within the municipality and to abate public health hazards, and otherwise protect the general health, safety and welfare of the citizens of Borough of Clarks Summit. … Noise - Any noise source which due to intensity, frequency, duration, location, lack of shielding or other reason which causes injury, damage, hurt, inconvenience, or discomfort to others in the legitimate use and quiet enjoyment of their rights of person or property.
Clarks Summit Borough No. 2009-04 http://clarkssummitboro.org/documents/2009-04%20nuisance%20ordinance%20- updated%20May%2009-%20passed.pdf SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY
TRAINER, 394 A.2D 645 (PA. CMWLTH. 1978); KADASH V. WILLIAMSPORT, 340 A.2D 617, 619 (PA. CMWLTH. 1975)(QUOTING COMMONWEALTH OF PA V. HANZLIK, 400 PA. 134 (1960)).
A MUNICIPALITY CANNOT DEFINE A NUISANCE BY FIAT (NO NUISANCE PER SE) Public nuisance law stretches back for hundreds of years Nuisance in legal terms means substantial ‘harm’ to community health or welfare Pennsylvania generally handles nuisances through the ‘lens’ of the Restatement (Second) of Torts Substantial burden of proof on the wronged party (that is, forces the wronged to ‘prove’ a nuisance) Court might apply a vague, “weighing” test considering many factors such as character of harm, extent of harm, suitability to location, utility of conduct, impracticability of preventing, costs to prevent, etc. Difficult to enforce nuisance law except in extreme cases or in extremely dangerous situations Remedy/result unclear even if prevail Precipitated environmental law
SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY
A NOISE ORDINANCE SPECIFICALLY ADDRESSES
NOISE PROBLEMS IN A NEIGHBORHOOD UNDER A THEORY OF A BAD-NEIGHBOR OR A DISRUPTIVE PERSON WHO BREACHES THE COMMUNITY PEACE—QUASI-CRIMINAL SIMILAR TO ACTS LIKE GRAFFITI, CRIMINAL MISCHIEF, PETTY THEFT, LOITERING, ETC.
SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY
Noise Problem Noise Ordinance Public Nuisance Law
PLAINLY DEFINES THE WRONGDOING THROUGH AN ORDINANCE’S TEXT ACCOUNTABILITY BECAUSE ELECTED OFFICIALS MAKE DECISIONS BASED ON
THE LAW AND THUS AVOIDING ON-THE-SPOT ASSESSMENTS
NEIGHBORS CAN MUTUALLY COOPERATE AND AGREE SOME POLICE DISCRETION IN ENFORCING (CAN GIVE A WARNING) SIMPLER, SUMMARY-OFFENSE BURDENS OF PROOF APPLY OR SIMPLE PAYMENT
OF FINE
CLEARLY DEFINED REMEDIES AND ABILITY TO ESCALATE PENALTIES FOR REPEAT
OFFENDERS
SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY
Summary:
Developing a Targeted, Purposeful, and Graduated Approach Using the Correct Tools
SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY
1 Noise Ordinance
1.5 Disruptive Property Ordinance
2 Nuisance Ordinance with Noise Clause
3 Zoning Ordinance
construction guidelines, materials, accessory uses, permitted uses
Pittsburgh example of interlocking ordinances to tackle noise
Common Legal Challenges to Noise Ordinances in Pennsylvania
SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY
Constitutional— Facial and As-Applied
(Prior Restraint)
Com. v. Scott, 878 A.2d 874, 878-79, 2005 PA Super 224, ¶ ¶ 11,13 (Pa.Super.,2005)
Definition important but Pennsylvania recognizes “statutes which prohibit audible noises based on a distance standard” and “plainly audible” as adequate. See also HHI Trucking & Supply, Inc. v. Borough Council of Borough of Oakmont, 990 A.2d 152, 163 (Pa.Cmwlth.,2010) (objectionable or acceptable MUST be defined))
Overstreet v. Zoning Hearing Bd. of Schuylkill Tp., 618 A.2d 1108, 1114, 152 Pa.Cmwlth. 90, 101–02 (Pa.Cmwlth.,1992)
Suggests that noise limits in zoning ordinances must be tied to specific needs of the zoning district.
Klein v. Council of City of Pittsburgh, 643 A.2d 1107, 1119, 164 Pa.Cmwlth. 521, 545 (Pa.Cmwlth.,1994)(citing Hopewell Township Board of Supervisors v. Golla, 499 Pa. 246, 452 A.2d 1337 (1982)).
In order to be valid, a zoning ordinance amendment must ‘bear a substantial relationship to legitimate community health, safety, and welfare purposes, and may not be unreasonably arbitrary, irrational, unjustifiably discriminatory or confiscatory.”
Coal Gas Recovery, L.P. v. Franklin Tp. Zoning Hearing Bd., 944 A.2d 832, 836–39, 840 (Pa.Cmwlth.,2008)
Zoning definitions and zoning maximum-noise applied literally according to definitions of measurement distances.
Leckey v. Lower Southampton Tp. Zoning Hearing Bd., 864 A.2d 593, 596–97 (Pa.Cmwlth.,2004)
ZHB imposing conditions about noise limits as special exception to a non-conforming use within ZHB discretion.
Com. v. Ebaugh, 783 A.2d 846, 850 (Pa.Cmwlth.,2001)
Nuisance ordinance test of “annoy or disturb a reasonable person of normal sensitivities” in the Township’s nuisance ordinance objective standard and constitutional
City of Philadelphia v. Cohen, 479 A.2d 32, 36, 84 Pa.Cmwlth. 200, 206 (Pa.Cmwlth.,1984)
Decibel, distances, background levels, “adverse psychological and physiological effects on persons:” not vague; businesses may be held to higher noise limits because businesses regulated
Pacurariu v. Com., 744 A.2d 389, 393 (Pa.Cmwlth.,2000)
While rifle ranges enjoy special exemptions, must still comply with local noise ordinances at time of construction
SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY
SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY
1
Define noise
2
Health, Safety & Welfare Supports Ordinances
3
Legal Spectrum and Constitutional Factors
4
Noise Ordinances vs. Public Nuisance vs Zoning
5
Sample Ordinances
THREE BASIC OPTIONS TODAY IN PENNSYLVANIA— PLAINLY AUDIBLE, SOUND-LEVEL, OR HYBRID
SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY
INTERCONNECTED METHODS FOR TACKLING NOISE
MOST MUNICIPALITIES REQUIRE ALL THREE METHODS.
SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY
Noise Problems 1 Noise Ordinance General municipal enabling codes/statutes Focus on noise and individual BEHAVIOR 2 Public Nuisance Common law Focus on INTERFERENCE with real property in community 3 Zoning MPC (Municipalities Planning Code) Focused on property/CONSTRUCTION STANDARDS
Noise Ordinance General Options
SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY
1 Plainly audible 1 Plainly audible 2 Sound Level/”Decibel” 2 Sound Level/”Decibel” 3 Hybrid 3 Hybrid
1 Lancaster City—Plainly Audible
York, Allentown, etc.
SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY
Photo Lancaster City. Used by written permission. The following acts and the causing thereof are declared to be noise disturbances and therefore in violation of this chapter: (1) Radios, television sets, musical instruments and similar devices. Operating, playing or permitting the
automobile radio, automobile stereo, high-fidelity equipment or similar device which produces, reproduces or amplifies sound:
between the hours of 9:00 p.m. and 8:00 a.m. so as to be plainly audible across a property line (boundary); (b)In such a manner as to create a noise disturbance across a property line (boundary), or at 50 feet from such device, whichever is less, when the device is operated in or on a motor vehicle, or hand carried, on a public right-of-way or public space; or (c)In such a manner as to create a noise disturbance to any person other than the operator of the device, when operated by any passenger or a common carrier.
SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY
Purpose. The Council, finding that excessive levels of sound are detrimental to the physical, mental and social well-being of the residents as well as to their comfort, living conditions, general welfare and safety, and being therefore a public health and welfare hazard, hereby declares it to be necessary to provide for the greater control and more effective regulation of excessive sound and the sources of excessive sound within the City.
SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY
SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY
NOISE DISTURBANCE — In addition to the sounds specified in §198-4B hereof, any sound which
Noise disturbance prohibited. No person shall make, continue or cause to be made or cause to be continued any noise disturbance by any means, nor shall any person suffer, allow or permit any noise disturbance, by any means, to be made or continued from or at any property, whether public or private, real or personal, that is subject to such person's right to control.
SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY
The following acts and the causing thereof are declared to be noise disturbances and therefore in violation of this chapter: (1) Radios, television sets, musical instruments and similar devices. Operating, playing or permitting the
automobile radio, automobile stereo, high-fidelity equipment or similar device which produces, reproduces or amplifies sound:
between the hours of 9:00 p.m. and 8:00 a.m. so as to be plainly audible across a property line (boundary); (b)In such a manner as to create a noise disturbance across a property line (boundary), or at 50 feet from such device, whichever is less, when the device is operated in or on a motor vehicle, or hand carried, on a public right-of-way or public space; or (c)In such a manner as to create a noise disturbance to any person other than the operator of the device, when operated by any passenger or a common carrier.
SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY
Lancaster— Specific Rules § 198-4(B)
Typically tied to time frame and/or noise disturbance definition
SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY
Televisions, radios, etc. Yelling/shouting, loud, raucous activity Construction Loading/unloading Animals/birds Powered motor vehicles Street sales by unamplified/amplified equipment Vehicle repairs Horn blowing/racing/idling/mufflers
Lancaster— Exemptions §198-6 Typical
SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY
School events Emergency work Municipal services First Amendment Activity Government activity
SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY
$150 to $1000 fine first offense $150 to $1000 fine first offense $300 to $1000 fine second offense $300 to $1000 fine second offense $500 to $1000 fine third offense OR imprisonment up to 90 days $500 to $1000 fine third offense OR imprisonment up to 90 days $1000 fine (after third) + 5-90 days jail $1000 fine (after third) + 5-90 days jail
Plainly Audible Summary
2005 PA SUPER 224, ¶ ¶ 11,13 (PA.SUPER.,2005)
SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY
AN ASIDE ON MEASURING SOUND VS. NOISE
SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY
Acoustics is the study of sound Sound typically vibrations of certain frequencies detectable by human ears Decibel, applied to acoustics, measures SOUND “pressure level” using logarithmic scale dB or DB symbol used ANSI weighting scales to weight frequencies dB(A) & dB(C) dBA most common NOT “LOUDNESS” ALONE--: noise machines/noise masking device may actually increase relative or average decibel levels but not generally be objectionable and would potentially fail a decibel measure
SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY
Noise is unwanted or inappropriate sound NO scientific measurement of NOISE Noise includes Time of day Duration How frequent Impulse/startling character (explosive sound vs. continuous) Wave frequency (“high-pitch” vs. “low-pitch”) Location “Loudness” (intensity of sound or decibels)
SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY
Sound –level Suggestions?
SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY
EPA “suggested” 55dB maximum at any time outdoors (less at night typical) EU/WHO latest guidance 30-40dB target (max 40dB night, 30-55dB range, 50dB max to prevent serious annoyance)
Must distinguish hearing loss research (OSHA) from noise research
EU Night Noise Guidelines for Europe (XVI) and
…levels above 50dB raise questions whether based on scientific support…
WARNING:
OSHA Trap
OSHA research focuses on WORKPLACE hearing LOSS, not medical effects or community noise 70dB or higher BUT they address only HEARING LOSS from workplace exposure
SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY
WRONG
Wrongly assumes 10dB increase represents
1-(45/55) rather than logarithm) Then, wrongly assumes a 20dB increase to 65 dB means just 20 “points” higher or about 33% (1-45/65).
RIGHT
Due to the logarithmic scale, every ~10dB increase essentially DOUBLES the “loudness”, therefore 55dB is 2X ”louder” than 45dB, not the erroneous “20%.” Due to the logarithmic scale, the 20db increase doubles the “loudness” twice, therefore 4X “louder” than 45dB.
SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY
Decibel Level Problem: Borough Council decides to use decibel levels. One Council Member argues for 45 dB(A) during the night and 55dB(A) during the day. She argues that the difference is “only” 10dB so not a big deal—”after all, that’s only about 20% “louder’” —and then argues that we could even go higher to 65dB because she has seen “other communities” with similar levels.
Decibel Mistakes
ASSUMING DECIBEL SCALE IS LINEAR, NOT
LOGARITHMIC
ASSUMING DECIBELS MEASURE NOISE
SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY
8000 Unit INCREASE! 10 Unit increase
MEASURES SOUND ONLY DOES NOT ACCOUNT FOR NOISE CHARACTERISTICS MAY BE ARBITRARY AND CAPRICIOUS IF POORLY
DRAFTED (STAY TUNED!) TIME FRAMES DECIBEL “LEVELS”
REQUIRES EQUIPMENT REQUIRES TRAINING GIVES A PRETENSE OF “SCIENTIFIC” PROCESS TYPICALLY FOCUSES ON WRONGDOER RIGHTS, NOT
COMMUNITY NEEDS VOID FOR VAGUENESS DUE PROCESS FAIR NOTICE
SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY
2 Sound Level Examples of “Noise” Control
WASHINGTON TOWNSHIP, WESTMORELAND COUNTY & CARLISLE BOROUGH
SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY
Photo: Washington Township
CAUTION:
Sound-level More Complicated to Identify— Urge Caution with Examples Because Hard to Find Pure Examples
SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY
Decibel unit reference in ordinance alone not adequate indicator Zoning ordinances or other
as well Maximum sound level/ maximum “noise levels”
Washington Township Ord.
“Maximum Noise Level Limits” Concept Hallmarks
Time of Day Some type of chart Maximum sound levels
SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY
Washington Township Ord.
Complex testing and calibration May be difficult to enforce—legal issue not engineering issue
SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY
Domestic power equipment HVAC Warning devices Emergency vehicles Transportation vehicles Heavy equipment/construction Emergency generators Music, voices, paging, audio amplification, radios, VCRs (fast response) Impact noise Events Farm equipment (for profit)
SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY
Washington Township Ord.
Procedures & Penalties
SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY
Person files Complaint Form with Township Police Investigation Notice of Complaint issued with time to abate
Penalties Complaint Form and procedures/similar to nuisance distinguish from noise ordinance.
Ordinance uses 40dBA maximum for daytime and 35dBA maximum nighttime. One of the few ordinances consistent with current medical and scientific research.
SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY
2 Carlisle Borough—“Noise Level” Noise Control § 170-12 et.seq.
SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY
Photo https://www.carlislepa.org/ Carlisle https://ecode360.com/10681488# Carlisle Borough §170-12 Purpose
Purpose. It is the purpose of this article to ensure that public health, safety and welfare shall not be abridged by the making and creating of public nuisances from disturbing excessive or
Carlisle recognize that uncontrolled noise represents a danger to the health and welfare of themselves and their neighbors and that each resident of the community is entitled to live in an environment in which the level of impulse and amplified noise is minimized for the community good. This article attempts to foster mutual respect among all residents and to establish a community position against noise pollution.
SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY
First Prohibits Certain Noise Acts Horns or warnings unless emergency Radios, music, instruments, tv, etc. except political, religious,
Yelling, hooting, whistling, singing Fireworks/explosives Parties or social gatherings Squealing of tires
SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY
Carlisle Borough Exempts Some Acts §170-15
Safety and warning devices from authorized vehicles Municipal services or utilities Bells, chimes, carillons Local government and school events Events by Special Waiver
SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY
SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY
Violation needs to exceed maximum level by 15dBA at any time OR 10 dBA for one minute in ten minutes OR 3 dBA continuously for five minutes or total of five minutes in ten minutes
Carlisle Borough Penalties & Procedures §170-17
SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY
Police or noise enforcement officer enforces Cross reference to zoning so Noise Ordinance does not allow noises as nonconforming uses Penalty up to $1000 fine or 30 days in jail No limit on equitable remedies or private rights
Relies only on decibels for alleged violation Hallmarks
Sound level table Maximum sound levels Measurement criteria Time of day limits
SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY
3 Pittsburgh—Hybrid Approach
SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY
By Zach Rudisin - Own work, CC BY-SA 3.0, https://commons.wikimedia.org/w/index.php?curid=20673160 IF YOU’RE NOT BEING A GOOD NEIGHBOR, THERE ARE STEPS WE CAN TAKE TO ENSURE THE PEACE . . . RELYING ON A DECIBEL LEVEL IS JUST NOT WORKING. — P I T T S B U R G H C O U N C I L M E M B E R S
SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY
Pittsburgh Recognizes Noise as a Conduct-and- Public-Order Issue—and thus a TRUE Noise Ordinance
SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY
CONDUCT—Public Order, Panhandling, Curfew, Safety, Firearms, Youth, Weeds/Grass, Alarms, Obscene Materials, Public Nuisances, Marcellus Shale, Smoking, Pollution, Graffiti PUBLIC ORDER--Noise, signs, massage parlors, littering, underage drinking NOISE CONTROL
Pittsburgh— Noise Elegantly Tied to Additional Sections
SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY
1
Noise Ordinance §601.01 Disruptive Properties §670.01 et seq, 15 days after notice, wrongdoer required to provide abatement plan and city can assess costs of public safety services in addition to public nuisance remedies
2
Public Nuisances §615.01 et seq. — Forfeitures, permanent injunction, knowledge presumed by delivery of notice
3
Zoning—Noise a factor in zoning
Pittsburgh Noise Control §601.04(c)— Hybrid Approach
(c) Restriction of noise between premises :
transmit or cause to be transmitted any unamplified noise, which leaves the premises from which it originates, and enters any residential property or premises in a residential zoning district:
in Table A; or
SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY
Example Table A: Maximum Allowable Noise Levels at Residential Property Receiving Premises
Daytime: 7:00 a.m.—10:00 p.m. 65 dB(A) or 3dB above background sound level, whichever is greater Nighttime: 10:00 p.m.—7:00 a.m. 55 dB(A) or 3dB above background sound level, whichever is greater
SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY
Pittsburgh Noise Control §601.04(b)
Definitions
dB(A). The symbol designation of a noise level, reported in decibels, using the A-Weighting network of a sound level meter, as defined in ANSI S1.4— Specification For Sound Level Meters. For example, noise will be reported as seventy-two (72) dB(A). For purposes of this ordinance, the noise shall be measured using the slow exponential time weighting characteristic of the sound level meter. NOISE or NOISE LEVEL (used interchangeably for purposes of this Section). The terms noise and noise level may mean the sound that is capable of being measured as sound pressure level in decibels. Noise and noise level may also mean the sound that is clearly audible from a distance of seventy-five (75) feet or sound that annoys or disturbs a reasonable person of normal
Noise levels relative to Tables A and B below will be recorded as the visual average for any continuous measurement period of thirty (30) seconds, and the maximum noise level measured at any time. The offending noise will be deemed to violate the provisions of Tables A and B below of this Section if the visual average exceeds the maximum allowable noise levels and/or the maximum noise level measured at any time exceeds the maximum allowable noise levels by five (5) dB(A) or five (5) dB(C). PLAINLY AUDIBLE. Any noise that clearly can be heard, however, words or phrases need not be discernible.
SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY
https://library.municode.com/pa/pittsburgh/cod es/code_of_ordinances?nodeId=COOR_TITSIXCO _ARTIRERIAC_CH601PUOR_S601.04NOCO Limited Exceptions §601.04(f)
SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY
Warnings of hazardous situations Emergency vehicles Religious institution or school bells Sporting events Construction, properly permitted Parade or special event
SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY
Up to $300 fine or up to 30 days in jail per violation
Defines any violation as a Public Nuisance and enforceable as a public nuisance with abatement—permanent injunction, forfeitures
Allows classification as Disruptive Property with additional penalties and abatement—assess public safety costs
Philadelphia—Hybrid Variant
SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY
Photo phila.gov Philadelphia Noise & Vibration Ordinance Preamble § 10-400
SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY
Noise and Excessive Vibration Enabling/Legislative Findings Preamble Recognizes noise and vibration as health issue “no one has any right to create noise or excessive vibration”
Philadelphia— Noise, Generally Prohibited Conduct §10- 403(2)
Uses Neighborhood-Specific Baseline
SOUND FROM RESIDENTIAL PROPERTIES. NO PERSON SHALL CREATE OR CAUSE, OR PERMIT THE CREATION OF,
SOUND ORIGINATING FROM A RESIDENTIAL PROPERTY AUDIBLE AT A DISTANCE GREATER THAN ONE HUNDRED FEET FROM THE PROPERTY BOUNDARY OR THAT EXCEEDS 3 DECIBELS ABOVE BACKGROUND LEVEL MEASURED BEYOND THE PROPERTY BOUNDARY…
BACKGROUND SOUND LEVEL. THE MEASURED SOUND LEVEL IN THE AREA,
EXCLUSIVE OF EXTRANEOUS SOUNDS AND THE SOUND CONTRIBUTION OF THE SPECIFIC SOURCE IN QUESTION.
SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY
PLAINLY AUDIBLE SOUND–LEVEL HYBRID
SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY
“IF YOU’RE NOT BEING A GOOD NEIGHBOR, THERE ARE STEPS WE CAN TAKE TO ENSURE THE PEACE...”
SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY
SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY
1
Define noise
2
Health, Safety & Welfare Supports Ordinances
3
Legal Spectrum and Constitutional Factors
4
Noise Ordinances vs. Public Nuisance vs Zoning
5
Sample Ordinances
FUNDAMENTALLY, MUCH OF NOISE LAW COMES DOWN TO BE-A-GOOD-NEIGHBOR
SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY
SHANNON BROWN, ESQ.
CLARKS SUMMIT, PA 18411 717.945.9197 NOISE@SHANNONBROWNLAW.COM WWW.SHANNONBROWNLAW.COM
SHANNON BROWN, ESQ. CLARKS SUMMIT, PA--LACKAWANNA COUNTY
The presentation features general research and legal information. The presentation does not substitute for legal advice and is not intended as legal advice. Questions & answers are general discussion and not legal advice.