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Shhhh ... Can Monterey be a quiet zone?
BY JAMES JACENICH • STAFF WRITER
 | | Monterey town attorney Melissa Dowd recommended the town of Monterey adopt a noise ordinance with a reasonable person standard that a judge could enforce in court. (Recorder photo by James Jacenich) |
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MONTEREY - Who will enforce a noise ordinance and what, exactly, is noise? Who should enforce the fire code and is a town fire ordinance necessary? These questions and others were brought up at a discussion of around 20 town residents at last Thursday's meeting of the Monterey Town Council which was attended by Sheriff Herb Lightner and sheriff candidate Tim Duff.
"I've lived on Spruce Street since 1967. You don't hear what you used to. We have a quiet little town now. I called the sheriff's office and it stopped it for a night, but it came back,"' said Mayor Janice Warner. "We are willing to work with you, do an ordinance. We may not have to use anything stronger than to put something on the books."
Several citizens clarified statements they made at last month's council meeting.
"I'm not against motorcycles, but some should use muffler baffles," said Ludford Creef of Monterey. "I'm not against the proper use of fire. But misuse can be deadly."
 | | Rock Turk of Monterey said he wants to be a good neighbor. (Recorder photo by James Jacenich) |
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Creef, town resident Bill Richards, and councilman Don Dowdy agreed the noise problem was not as bad as it was a month ago.
Rich Holman rebuffed a statement made by neighbor Rock Turk in a letter to the editor of The Recorder recently. ""I never said anything about fire pits as big as this room," he said. "I did say something about yards as big as this room."
Turk, who felt some of the complaints about noise and smoke were directed at him, told those attending, "I want you to get to know me and I want to get to know you. I'm an open book. If you have a question, let me know. If I'm doing anything wrong, let me know." Turk said his openpit fire was the subject of complaints that prompted the drive to establish an open fire ordinance in Monterey.
Cars with loud stereo systems belonging to unknown individuals induced Creef and other town residents to approach council last month asking for a town noise ordinance. Barking dogs and loud music from within homes were also mentioned as potential sources of unwanted noise.
Richards' impassioned plea last month for a reasonable solution to the noise problem, coupled with his personal encounter with a person who cursed him after he asked him to reduce the volume on his car stereo, had prompted councilman Sam Shell to say that he could see how a citizen could be pushed to violence when faced with threatening words and insults. The rising anger against uncivil behavior in town expressed last month echoed this month in the remarks of Monterey resident Butch Washer, whose wife, Debbie, was recently verbally abused by a passing motorist she asked to slow down.
"Debbie was cursed at and threatened by someone speeding through town (a middle-aged man known to the Washers). He (now) understands that threatening my wife is something not to do. Sam (Shell) and I think a lot alike," said Washer. He explained he had spoken to the individual who offended his wife and was satisfied he would not bother her again. "I suggest you (town council) think more about safety than a little sleep and noise. Someday somebody is going to get killed in this town," Washer warned.
There are five ways to deal with noise
Town attorney Melissa Dowd compared existing noise ordinances from Staunton, Harrisonburg, Augusta County and Bath County, among others, and came up with options she said may be appropriate in Monterey.
She said there were five ways to regulate animal and general noise: a general noise ordinance that includes paragraphs dealing with barking dogs and other animal noise, a separate noise ordinance and a separate barking dog ordinance, a 50-feet reasonable person standard, an objective decibel testing standard that requires testing equipment, or any combination of the above.
In her research, Dowd found that violation of noise ordinances was typically treated as a class 3 misdemeanor and carried a maximum $500 fine plus community service.
Dowd favored an ordinance that defined noise based on decibel level because it was objective and clearly defined. The disadvantage to an ordinance with a decibel standard is that it requires a law enforcement officer with appropriate training to conduct the test, she said.
Discussion followed centered on the fact that equipment and a police officer would be costly; response time could also be a problem in Highland County, which typically has one deputy on duty at a time responsible for 422 square miles of territory; and by the time an officer arrived, the source of the noise could be gone.
Monterey would also have to rely on support from the Highland County Sheriff's Office because it does not have its own peace officer. Hiring an officer to enforce town ordinances would be expensive, officials agreed.
Some said crime in town was getting to the point that a town peace officer was needed. Comments from the residents alluded to a growing sense that there were late night drug deals being conducted in Monterey, and it was not safe for citizens to walk about freely after hours.
Shell suggested the town consider hiring a peace officer that would be close and fairly accessible, but Warner disagreed. "We don't have a problem to that extent," she said. "It would only be one man and it would be expensive. We couldn't enforce 24/7. Best to ask the sheriff to enforce the law."
"If it is an offense not in the presence of an officer, the person that feels victimized has to swear out the warrant," said Sheriff Lightner. He said he would prefer to have equipment to determine the decibel level, if a noise ordinance were passed. "That's the fool-proof way to enforce that law. If a dog is barking, you can stand at a property line, look at the machine, see what it says and issue the violation."
Councilman Francis Fenn said an ordinance setting a reasonable standard was better. He said people were more likely to curtail behavior that others found offensive if they knew it was against the law.
Dowd recommended town council consider an "ordinary care" standard that gives a judge specific examples of situations where noise is negligence. "The definition of negligence is the failure to use ordinary care. Judges are often asked to determine negligence," said Dowd.
She explained the Bath noise ordinance was enforced only once to her knowledge, and the conviction was overturned in circuit court because the ordinance was overly vague. "To get around that, say to the judge in the ordinance, 'Here is what we want you to use as the elements of the offense,'" she said. "We can use 50 feet from a property line or 50 feet from a vehicle (for example). Dowd said judges and juries use a reasonable-person standard all the time. "Require them to figure that out, give them the elements to define it, and we will be OK."
Normally, two people not of the same household would have to complain to take the accusation to court, said Dowd. That is to ensure one neighbor would not lodge nuisance complaints against another neighbor.
Rescue or law enforcement sirens could be exempted from the noise ordinance. The town could issue permits for special events such as an outdoor concert, an auction or even a sunrise outdoor church service.
A quiet-time clause could also be added to a noise ordinance, specifying more restrictions on noise between the hours of 10 p.m. and 6 a.m. or any time of the town's choosing. Shell favored setting aside 10 p.m. to 6 a.m. nightly as quiet time. Things such as mowing grass and running chainsaws would be prohibited then.
But Richards wanted certain noises prohibited at all times. He said older people and shift workers who sleep during the day are disturbed by non-work related noises (such as loud car stereos).
"Start with a reasonable-person standard - it does not have additional cost for the town," said Dowd. "My recommendation is, let's start with a fairly simple one; we can add to it later."
Lightner added, "I haven't had time to digest this yet, but I would concur. The county does have an animal control officer to handle barking dogs, vicious dogs in the county. You would have to have exceptions for celebrations, snow plows (and the like). Loud pickup truck noise is already covered under state law."
Councilman Tony Stinnett said, "I'd like to look at these things, study a little bit and see what we really want to do."
"I would recommend that we put it in Dowd's hands, put in an animal part and let us look at it next month, and see if we are ready to have it published. If there is something we really feel strongly about, we can talk to Melissa about it," said Warner.
Rock Turk's wife, Lynn, suggested the town commission "a nice sign" that says, "We are a quiet town, please keep noise down," and post it at each end of town to advise motorists they are entering a quiet zone. Council approved a motion to have Shell explore the cost of a sign for each end that said something to that effect.
"I don't think we can settle this until we get something on the books that we can start with. We may have to add to it, but at least we will have a start. Melissa will bring something next month," said Warner.
Let marshal enforce the fire code
Dowd said under the state fire code, the town could use the state fire marshal (located in Roanoke) to enforce violations of the code. She said one provision of the fire code prevented a campfire that fills a neighboring house with smoke. "We already have provisions in the state fire code that addresses this," she said.
"Ask building and zoning official Jim Whitelaw to contact the state fire marshal," said Dowd. "When the fire marshal appears, have your notes ready. It is a violation; people can be fined.
"I'm not an advocate of 'let's see how many rules we can adopt,' she added. "Let's start there. We have rules already."
The last resort is for the town to prohibit or regulate the making of fires on private property by ordinance, said Dowd.
Warner said the town has an ordinance prohibiting outdoor wood stoves because of smoke, so an additional ordinance covering other types of fires was not out of the question.
Dowd said recreational fires, according to the fire code, must not be conducted within 25 feet of a structure unless they are contained in a barbecue pit. A recreational fire is generally defined as being no larger than three feet in diameter and two feet high, according to the International Fire Code, which is referenced by the state fire code.
The council decided to table a decision on a town fire ordinance and allow the state fire marshal to take the lead in enforcing fire code violations.
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