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Is noise a nuisance?
Monterey residents debate new ordinance
BY JAMES JACENICH • STAFF WRITER
MONTEREY - "There's no **** law against this and you can't do a damned thing about it, old man," said a young man inside a car at the intersection.
That's the way Monterey resident Bill Richards heard it the night he asked the driver of an unidentified vehicle to turn down his music because it was so loud it disturbed his sleep.
He was upset enough about the incident that he asked Monterey Town Council to enact an ordinance prohibiting such noise.
"(It) started Christmas Sunday morning at 5:30 a.m.," said Richards. "(A boom car) came up (along Main Street) to the (old) pool and turned around. I could hear him coming off Jack Mountain. He came by slowly. He was just doing it to say Merry Christmas to everyone. He went back home. I know where he lives.
"These folks don't give a hang about you, they are here to intimidate you," said Richards. "This is so different from what the Highlanders are. These people want attention. They are belligerent. I am 50 percent deaf, yet I have no trouble hearing them."
Monterey resident Ludford Creef said he couldn't sleep the night of July 12 because of a loud rumbling coming from a car that circled the neighborhood 22 times that night. The second time he was disturbed by a loud noise coming from speakers inside a car was at the recent Crusade for Christ. "The windows were rolled down and the boom box was going wide open," he said. "That gave me the incentive to come to town council. Common sense and respect for others has been replaced by cruel arrogance by a few."
Creef proposed an ordinance to prohibit noise in the town of Monterey and provided as examples copies of ordinances in effect in Henrico and Bath counties and in the city of Abingdon. A month ago, Monterey resident Jack Flynn also asked whether a noise ordinance could be drafted after incessantly barking dogs near his home had kept him awake many nights.
Richards said, "This has been my fourth summer here, the first two were beautiful. The last two years have been hell. These 6-8 people that have these vehicles with boom boxes in them - gravel crushers, concrete breakers, they call them different things, they are made to be intimidators. They are not good for people running them … they are not good for people's health that have to listen to them.
"Two weeks ago this car came by with all the windows open. There were three boys in it; booming must have been 10,000 watts, I don't know," said Richards. "They stopped at Ernie's Market. I went over there and asked, 'Will you guys turn this down? I would appreciate it.'
"'Ain't no law against it, and another thing you can do …'," Richards recalled. "He told me I could have sex with myself." Richards' voice broke as he recalled the encounter.
"You go four or five nights without sleep like I do … I live right close to Main Street. I counted 17 times one person went down the street from the swimming pool to Jack Mountain," Richards said. "Don't tell me they are doing it because they like music, they can't hear the music …
"They are mostly kids; there's one young lady," he said. "I know where all these kids live and I know who they are, but I'm not going to say right here. This thing has got to stop."
Andrew Washer, 18, Monterey resident and 2007 graduate of Highland High School, plays drums and saxophone. He also drives a truck with two 12-inch subwoofers that can belt out a total of 800 watts. It's loud, but it's music to his ears. "It's a matter of self-expression," he said. It's also a family tradition." Washer's father assembled loud car stereo systems in the 1980s and won two national competitions for the supercharged speakers.
"We make a lot of noise," said Washer. "But it's a matter of self-control. I come home from work around 11 p.m. I know not to play my music loud then. If there should be a noise ordinance, it should be at night. You shouldn't disturb people's sleep."
He also said although his stereo is loud, his muffler is quiet, unlike other trucks he's heard. As long as no one else's rights are violated, a person should be able to do what they want to, he said.
James Folks, 15, is also a loud car-music enthusiast, though he's still too young to drive. "I always liked a big car stereo," he said. "It makes the music sound good." He likes to ride around with friends and listen to music. Folks plays guitar and drums and has been studying music for six years.
Byron and Anne Adams, who own the former swimming pool property where vehicles turn around, confirmed the problem. "We've been here four years," Anne Adams said, "and we've had to call the sheriff's office a few times, too. Usually we ask them to just send a deputy and ask these kids to move along, and they do. But Sheriff Lightner has told us vehicle problems fall under state police, not deputies. We've only called them when it's been so loud it wakes up our children, and that's usually in the summer when our windows are open. And yes, you see the same vehicles circle around over and over and over, 10-12 times in a half hour. We know who they are, too."
The Adamses say they bought the pool property in part to try to solve the problem of kids hanging out there. "When we first moved, the pool was still open," said Adams. "And the sounds from that were fine. We can even take the jake brakes coming down Monterey Mountain and the motorcycles that whiz by, but these kids are usually there in the late evenings, and now they're on private property and there's little we can do to keep them off, unfortunately. But it's not just the noise - they litter, cuss a blue streak, dump their ashtrays and beer cans. They've even knocked down the split rail fence we put up a couple of times, and while we've reported the incidents, the sheriff's office has never pressed charges against anyone. Even worse, they also hang out there just before school starts. They've spun gravel so close to where our small children wait for the bus, their little legs get sprayed with the rocks."
Adams has photographed license plates, and taken a video camera out to the driveway. She has on film a number of incidents just in case she needs to file charges down the line, especially for littering and spinning out dangerously.
"They are not safe," she said. "There are plenty of kids and older folks who walk in this area, and these young people are going to hurt someone sooner or later."
Adams said a noise ordinance in town might only make the problem worse near her, though, since their property abuts Monterey but does not fall within town limits. "From what I've been told, kids have always used this spot as a hang-out, and we're not going to be able to change that. We're told the noise and nuisances are just part of town living, but the ridiculous volume level of the music and the squealing of tires just doesn't seem appropriate. I'm all for keeping the noise down in town, but I do worry it would get worse in my front yard. As far as I know, the county doesn't have that kind of ordinance either, so it wouldn't do us any good. State police only sit here once about every six months. If they sat here every day, they could easily issue a dozen speeding tickets every 24 hours. I think they just don't have the manpower."
"This is the place to start to make it illegal," said Richards. He asked that an ordinance be enacted declaring the operation of a "boom car" within 25 feet of a house, and within one-half mile of a school or church service, illegal.
"I would have decked somebody; there's no sense for that (noise)," said councilman Sam Shell. "We have the responsibility to protect the people in our town. I make a motion to rattle the sheriff's cage or whatever. He has to do something about this."
Richards said, "I have read where some of these people have received bullet holes in their vehicles, or have been dragged from their vehicles and beaten because they bother people. We should be able to live peaceably together. Not all these people live here in town. One boy lives (several miles north of Monterey). We can't control (that area) but we can control what goes on in town limits."
While council agreed noise was a problem and that an ordinance was the way to deal with it, enforcement emerged as a larger challenge.
Creef said law enforcement was not what it should be in Monterey. "Everyone in town was very sympathetic," he said. He spoke to attorneys and the sheriff's office. "Sheriff Herb Lightner told me he was willing to enforce any ordinance in town, but he needed a written invitation."
Lightner said he doesn't need a written invitation, but that "citizens have to follow the appropriate procedures, which are: call the sheriff 's office, file a complaint, and let the officer take care of it. If the officer didn't witness the offense, he would advise the complainant to go to the magistrate and have her issue a warrant if probable cause exists. The sheriff's office will help them through that process."
He added it wasn't the sheriff's office, but the state police that required a letter from the town, and that was before setting up a speed monitoring station on Spruce Street.
Mayor Janice Warner said noise was not a new issue in town. "I have lived in town since 1967. It is not as bad as it was 10 years ago," she said. "In our charter, anything that becomes a nuisance we can do something about.
"The sheriff has been talked to about this a number of times," she added. "We can come up with an ordinance or come up with a letter, but then it is up to law enforcement to deal with it. The sheriff is obligated to enforce the laws within the town of Monterey as well as anywhere else (in the county)," said Warner.
"There is no noise ordinance and is not illegal (to play loud music)," said Lightner.
Nuisance violations apply to chronic situations like a house of prostitution, a drug house, or a congregational atmosphere at someone's house, said Lightner. An occasional loud noise doesn't make a nuisance. If a citizen feels a situation constitutes a nuisance, the sheriff's office will help them through the process of obtaining a warrant through the magistrate's office. However, he said, "Reading the ordinances on the books now, I don't see an offense. Violations of the law have to be proven beyond a reasonable doubt to be successfully prosecuted in court," he said. "We are not going to stretch the law to bring a case to court if it doesn't meet all the elements of the offense."
Lightner said he is willing to talk to those playing the loud music. It comes down to common sense. Most people will stop doing something if they know it offends others, Lightner said.
"Are you prepared to bang the drum until you get what you want?" Shell asked Creef. Since the town could not enforce any noise law they passed unless the sheriff 's office provided manpower, public pressure may motivate the sheriff to take action, Shell reasoned.
Lightner said he has one deputy on duty each day who has to respond to calls from all over the county. Even if patrols were increased in town, it is likely there would be times when the deputy was called away to deal with issues outside town.
Monterey has a provision for a town sergeant council could implement. Lightner said a fulltime town sergeant could cost as much as $70,000 a year, which covers overtime, insurance, medical and retirement. The idea that a sheriff's deputy could be town sergeant part-time would be considered by the county, if requested, but matters concerning liability and compensation would need to be negotiated.
Sheriff's candidate Tim Duff attended the council meeting but declined to comment on the proposed ordinance or the sheriff's office law enforcement policies.
Even if the law were enforced, making the charges stick in court is another problem, according to town attorney Melissa Dowd.
"Noise that is a nuisance to you may not be a nuisance to me," said Dowd. "You could measure decibels, but that differs by distance. You have to have something that determines what is audible. There are ways to define what is acceptable and what is not. But then it has to be monitored. There are ways to define very precisely what is acceptable and what is not acceptable."
Councilman Francis Fenn didn't consider crafting an enforceable ordinance a problem. He said the law could stipulate that any sound heard more than 75 feet from its source could be considered a nuisance.
"But heard by whom? By you or by me?" asked Dowd. "I wouldn't want to go to court with that."
Dowd agreed to give council a draft ordinance one week before the Sept. 6 council meeting.
Shell suggested council write a letter to the sheriff urging him to enforce town ordinances. "We ought to draft a strong letter to the sheriff. We have the responsibility to protect the people in town. (The sheriff's office) has the right and the responsibility to enforce this. I am sorry, but it is past time (for them to do something about enforcing town ordinances)" he said.
Fenn said, "It's not just the boom box. They are not enforcing loud mufflers - there is a state ordinance against it. These loud mufflers are on trucks and pickups."
"Motorcycles are bad in town, especially on weekends," Warner added.
"In the meantime, can we get some enforcement?" asked Creef.
Council directed Shell to bring up the matter with Lightner. Shell talked to Lightner Monday and said patrols have been increased in Monterey.
Warner asked Dowd to include noisy dogs in the ordinance, too, as requested by Flynn.
While we're at it, what
about open fires?
"In case the town should catch on fire, I want people to know where it is coming from," said resident Rich Holman. "There is an open pit campfire in a yard about the width of this room (in town). It is not a good idea.
"Sparks go 50 feet in the air near your house and my house," he told Warner. "We called the sheriff's office. (But it appears) we are in a little oasis where the law doesn't get enforced … If you're not going to do anything about it, I said, let's at least put it on the record. We need to establish a record so we don't hear (the sheriff's office) say it's the first time they heard about it.
"It's a safety issue. We keep our house open this time of year. With a fire to the west of us, smoke gets in our house It's a nuisance issue. It's scary."
Fenn said, "I got a call from a sheriff 's deputy at 1:30 in the morning (one night) asking if there were an ordinance against having fires because there was a backyard fire ... But there is no burn law in effect right now."
Lightner said he couldn't stop people from having an open pit campfire unless there was an ordinance against it. He added that if a campfire damaged a neighbor's property, that was a civil matter that could be brought to court. But it wasn't a matter for law enforcement unless a law was violated.
"Can't we have an ordinance that says you can't have an open fire? You all can enact one," resident Laurie Nuttycomb said to the board.
Resident Tate Swecker added, "This particular group is having campfires behind the Maple (restaurant building). That's right beside the sheriff's office. They appear to light a campfire wherever they want to settle … not only in their own yard, but in other people's yard as well. There is the (safety) issue of a giant bonfire near an empty wood building, woods … and empty oil tanks …"
"I walked my dog down that road and he dug a chicken bone out of that fire (pit)," said councilman Tony Stinnett. "There was a lawnmower beside where they were burning. It's not safe."
Warner asked Dowd to also research an open-fire ordinance for the town.
Council will also send letters to the property owners of the house where the open fire is burned and the Maple Restaurant building informing them of the dangers of open fires.
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