Nearly five years after a court struck down Boyne City’s noise ordinance as …
Nearly five years after a court struck down Boyne City’s noise ordinance as “unconstitutional,” the city commission voted 4-1 to develop a new ordinance.
Boyne City Commissioners discussed the matter during their Tuesday May 27 meeting, following a presentation by Boyne City Planning Director Scott McPherson.
“Back in 2009, the Boyne City Noise Ordinance was found unconstitutionally vague by Judge May (Richard, Charlevoix County 90th District Court),” McPherson said. “When looking at that ordinance, it’s kind of easy to see why. The existing ordinance is all of 300 words and took up about a half-page and basically uses the officer’s total discretion in deeming what is a violation.”
He added, “Since that time, the Boyne City Police Department hasn’t had a tool to enforce noise complaints and Chief (Jeff) Gaither has assembled some statistics on the number of complaints they have received, the types of complaints and the areas that they were received.”
According to a May 27 memo from McPherson to Boyne City Manager Michael Cain, records kept by the Boyne City Police Department from 2008 to 2013 reveal an average of 61 noise complaints per year.
“Most complaints are due to music with an average of 28 complaints per year, followed by neighbor complaints at 14 per year, dogs and vehicle complaints at seven per year and complaints about loud parties at six per year,” stated McPherson. “The BCPD has also logged noise complaints about the cannon and noise from the industrial park.”
He further stated, “It should be noted the many complaints about the noise from Kirtland Products were received by the planning office and are not included in these statistics.”
McPherson told commissioners, “It’s pretty clear that some type of noise ordinance is needed to deal with these concerns.”
According to McPherson, there are basically two types of noise ordinances: one outlines specific decibel limits per district—which would require officer training with a noise detection tool; the second type of ordinance, which is much more common, basically outlines the various types of violations and the officer would make the determination if it is in violation of one of those specific categories.
“Given the types of complaints that we have received over time and given the cost associated with administering a decibel limit, it would be the recommendation that we have the type that outlines various offenses and then allows the officer to identify those,” McPherson said. “Each has its pros and cons.”
Cain told the commission that a subcommittee consisting of Gaither, McPherson and Boyne City Main Street Program Manager Hugh Conklin had been set up several months ago to look into the matter, review the options and report back to the city commission.
Boyne City Commissioner Laura Sansom said she read through the sample ordinance and the existing ordinance and asked how the new ordinance would be less vague.
“It’s more specifically identified the various types of violations,” said McPherson. “Given this model of ordinances, it’s pretty much predominantly found throughout Northern Michigan—I think there’s comfort with using it.”
Sansom said it isn’t always the decibel level but how annoying a sound is that could cause problems, and asked if the new ordinance would cover that. She also said she was concerned with the Mason City model used in the proposed ordinance because it outlawed singing or whistling on city streets.
“The thought process here: you’re not going to get a perfect ordinance but you need an ordinance that’s going to deal with 90 percent of the problems,” McPherson said… “Ninety percent of the problems are neighbor complaints, the barking dog—those types of things—where he has zero tool to help him enforce that.”
Boyne City Commissioner Derek Gaylord—the lone “no” vote—said he was unsure why the issue was even before the commission.
“Since I’ve been on this board there has been exactly one citizen that has continually made comments about a noise ordinance,” Gaylord said. “The only other extremely pointed out matter was the Kirtland issue.”
Gaylord said he found the noise ordinance standard to be extremely arbitrary, capricious and subjective and relies on the mood of the neighbor and the mood of the police officer.
“We’re going to just create an ordinance and let the court sort it out? That is foolish thinking,” Gaylord said. “I understand the police are in a tough spot sometimes and the chief and his employees have to tell citizens we don’t have a noise (ordinance.)”
Boyne City Commissioner Delbert “Gene” Towne said he supports developing a noise ordinance.
Boyne City Commissioner Tom Neidhamer said any ordinance will take care of 90 percent of an issue, adding that it is common sense that the city needs an ordinance, and that any police interaction with the public can have some level of subjectivity related to it.
Gaither said he needs to have an answer—other than there’s nothing his department can do—for the people who call with complaints about noise.
Boyne City Mayor Ron Grunch asked if the city already had a disturbance of the peace ordinance that could be amended to cover the noise complaints, to which he was told the city’s civil counsel has advised the city not to enforce any portion of that which deals sound until the noise ordinance issue was dealt with.
Grunch said there needs to be a tool to deal with “egregious” situations, but that he agreed with Gaylord that the proposed ordinance needs some clarification on the subjective points.
Grunch said he would like to see the ordinance made less subjective and brought back to the commission for review.
Neidhamer reaffirmed his stance that the proposed ordinance was a “work in progress” and needed to proceed.
A new ordinance will be drafted and presented at a future city commission meeting.