Boyne City passes first noise ordinance in five years

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Benjamin Gohs

News Editor

House partiers, late-night lawn mowers and megaphone enthusiasts beware: Boyne City has its first noise ordinance in several years.

After having been struck down in 2009 for being constitutionally vague, a noise ordinance was adopted by the Boyne City Commission following a public hearing on Tuesday Dec. 9.

“As you may recall, at the first meeting back in October, the commission in reviewing the ordinance had a number of minor changes that were suggested to staff,” said Boyne City Planning Director Scott McPherson. “In addition, Chief Gaither (Boyne City Police Chief Jeff Gaither) provided the commission with some language … that delineates the commercial/industrial districts as different and the expectations of noise in those districts are different. That was also incorporated.”

He added, “The ordinance has been submitted to the city attorney. He did provide a letter and also made some additional changes to the draft that were incorporated.”

Gaither said the word “reasonable” was used in the new ordinance because it has been constitutionally upheld that the opinion of a reasonable person can be used to gauge whether a noise is appropriate.

Board discussion

“I still have some problems with this whole ordinance being that it seems very vague to me in a lot of cases,” said Boyne City Commissioner Laura Sansom. “I guess I still question the use of the word ‘reasonable’ and ‘appropriate’ and all that sort of thing—like, who measures that and how is that measured? And, how would that be any better than what we’ve had in the past for our sound ordinance?”

Sansom said she has been reading noise ordinances of other cities which have gone as far as ensuring new construction provides some acoustical sound barriers between residential and commercial areas.

“I thought that was a kind of valid point to make,” she said. “If you want to start drawing more residential and building residential in the downtown on the second story that those businesses, then, are more sound-proofed with that condition.”

Sansom said another regulation she saw was when commercial properties that create excessive noise downtown change hands, they are required to construct sound barriers as a condition of the sale.

“As we look forward in the future of building that kind of situation in Boyne City I think that might be an advisable criteria to put into our ordinances to help that situation in the future,” she said.

Sansom said another issue she had with the proposed ordinance was that the regulation regarding sound amplifying equipment was under the purview of the city manager. She said the city commission should have the oversight instead.

Boyne City Commissioner Derek Gaylord agreed that the “reasonable person” standard is well recognized and could apply to civil law as well as criminal law.

“While you’ve added the ‘reasonable person’ standard, there’s still vagueness in there,” he said.

Gaylord pointed to the Dec. 5 letter from the city’s attorney James J. Murray, of Plunkett Cooney, regarding the ordinance.

“[R]egulation of ‘noise’ often requires a delicate balance. On the one hand, it is the basic principle of due process that enactment of any ordinance is void for vagueness if its prohibitions are not clearly defined. USCA Const. Amd. 14. Vague laws trap the innocent by not providing fair warnings. In addition, vague laws impermissibly delegate basic policy matters to policemen and others on a subjective basis. In order to be lawful, an ordinance must give a person of ordinary intelligence a reasonable opportunity to know what is prohibited so that they may act accordingly. The ordinance must also have explicit standards.”

The letter continued, “On the other hand, reasonable time, place and manner regulations of expressive activity may be necessary to further significant governmental interests and are therefore permitted. Grayned v City of Rockford, 408 US 104 (1972). In the case of Grayned, the United States Supreme Court held that a city’s anti-noise ordinance prohibiting a person, while on the grounds adjacent to a building in which a school was in session, from willfully making a noise or diversion that disturbs or lends to disturb the peace or goodwill of the school session was not unconstitutionally vague since, with fair warning, it prohibited only actual or eminent and willful interference with normal school activity and is not a broad invitation to discriminatory enforcement.”

Gaylord noted that the city’s attorney approved the revised version of the ordinance for legality but made no comment on the substance of the new law.

“[W]e are not commenting on whether the use of decibel readings (such as the one used by Traverse City) is more appropriate. Further, we must assume that a reasonable person would understand that this ordinance does not reach constitutionally protected speech… Michigan law recognizes that certain speech, although it may be vulgar and offensive, may be protected by the First and Fourteenth Amendments and could not be barred by this ordinance,” Murray stated in the letter. “We assume this ordinance is intended to serve the legitimate and significant governmental interest of preserving the peace and quiet of the City of Boyne City.”

Gaylord took issue with some portions of the ordinance, including which building official(s) would be in charge of determining whether construction or demolition may take place based on the amount of noise created.

He also noted the sound equipment registration issue, previously mentioned by Sansom. He, too, felt it should be the city commission and not the city manager who should oversee such a matter.

Gaylord then mentioned a statement in the same section that states sound amplifying equipment shall not exceed a volume adequate to serve its purpose as determined by the regulating authority.

“Who is the regulating authority? And, what is that standard?” said Gaylord. “And, how do we know what the purpose is?”

Boyne City will act as the regulating authority and will, on a case by case basis, “Know it when they see it,” said Boyne City Commissioner Michael Cain.

Gaylord also pointed to a portion of the ordinance that relies on decibel levels, though the ordinance is actually based on perceptions of law enforcement and city officials.

“We don’t have the objective standard but yet item ‘2’ references decibels,” he said.

Under item “C.3” it states that the city manager would make decisions on what Gaylord called “vague language.”

“We’re going to force the citizens of this good city to file a court action on every sentence, section or clause of this ordinance after knowing there are legal issues?” Gaylord said. “That is unreasonable, in my opinion.”

Boyne City Commissioner Delbert “Gene” Towne asked Gaither if the ordinance would serve its intended purpose.

Gaither said the new regulation won’t cover every issue in every situation but it will go a long way to helping the police enforce the standards within the ordinance.

Boyne City Commissioner Tom Neidhamer addressed some of Gaylord’s and Sansom’s comments, saying that the police would be the ultimate enforcers of the noise ordinance. To Sansom’s idea of possibly, in the future, requiring noise abatement in new construction, Neidhamer said it was out of the city’s jurisdiction.

“Is this a tool that can be used by our police department? I think it is,” said Neidhamer. “Has it been vetted by the police department? Yes. Has it been vetted by our staff? Yes. Has it been vetted by our law firm? Yes.”

He added, “Is it going to give them the tools to take care of, as the chief said, 90 percent of the problems? Yes. If we go to a decibel type reading … we’re right back to it didn’t help us in the industrial park issue (Kirtland noise issue.)”

Neidhamer also addressed Gaylord’s and Sansom’s concerns about the city manager presiding over certain sound issues.

“We’re not here to micromanage. We’re here to set policy,” Neidhamer said… “That definitely falls under the chief of police or the city manager to determine those types of rulings.”

Boyne City Mayor Ron Grunch said he is in favor of an ordinance that does not include decibel levels.

“I think we really need to have some kind of consensus that we’re going to move forward without the decibel level or not,” he said, adding that the city should give the city manager and police chief some direction on the matter in order to move forward.

Cain agreed the word “building official” should be revised. He said the policy administration issue would be better handled by city staff in order to make for quicker resolution of any issues.

“Most of these things are things that we have been dealing with,” said Cain.

Cain also said citizens may bring issues to the city commission before taking a matter to court.

“This is a tool. It’s not a perfect tool,” said Cain. “It doesn’t deal with all the circumstances that we have out there but right now we don’t have any real effective tools on this issue.”

He added, “If we don’t start somewhere, we won’t get anywhere.”

The commission approved the ordinance with two minor amendments—changing “building official” to “zoning administrator” and “regulating authority” to “city manager”—by a vote of 4-1. Gaylord was the lone “no” vote.

See the full language of the noise ordinance on page 5.