Daily Development for Monday, February 2, 2004 by: Patrick A. Randolph, Jr. Elmer F. Pierson Professor of Law UMKC School of Law Of Counsel: Blackwell Sanders Peper Martin Kansas City, Missouri dirt@umkc.edu ZONING AND LAND USE; NOISE REGULATION: City's community noise ordinance that employs an "unreasonably loud" standard is upheld against a challenge that it is unconstitutionally vague on its face. Columbus v. Kendall , 798 N.E.2d 652 (Ohio App. 10 Dist. 2003). The City of Columbus ("Columbus") enacted a noise ordinance, Columbus City Code ("Columbus Code") Section 2329.11, that in part states: "No person shall make or allow to be made any unreasonably loud and or raucous noise in such a manner or at such volume as to annoy or disturb the quiet, comfort, or repose of a person of ordinary sensibilities, or to be plainly audible to persons within a distance of fifty (50) feet or more if the device is being used out of doors " Appellee Kendall is a resident of Columbus accused of violating this ordinance. A complaint about noise emanating from Kendall's residence was submitted to the police whose observations about the noise were that the noise was "not reasonable" and that it "could easily be heard from the street out in front." At trial, the trial court dismissed the city's case declaring the ordinance unconstitutionally vague and overbroad. On appeal, held: Reversed. The Ohio appeals court, quoting the Supreme Court decision in United States v. Harriss, indicated that "the Constitutional requirement of definiteness is violated by a criminal statute that fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute." In its view, the ordinance met the standard. The Ohio court stated that the term "loud or raucous noise" is defined by statute as noise in a volume and manner that is "of such intensity, character and duration to be offensive or disturbing to a person of ordinary sensibilities." It noted that the mere fact that the statute could have been worded more precisely does not automatically prove vagueness. The court went on to comment that "many courts have held that noise statutes that are based on the 'reasonable person' standard are sufficiently clear to withstand a 'void for vagueness' challenge." Further, the court dismissed any concerns about the language of the ordinance failing to protect against arbitrary enforcement by officials. "[In cases where standards are] flexible, and the officials implementing them will exercise considerable discretion, perfect clarity and precise guidance have never been required even of regulations that restrict expressive activity." Ward v. Rock Against Racism, 491 U.S. 781(1989). Comment: As an example of a case where the court went after the regulators, and not the regulation, on this issue see Howard Opera House Assoc. v. Urban Outfitters, Inc., 322 F.3d 215 (2nd Cir. 2003), the DIRT DD for 4/28/03. (Injunction that states that occupants of land may not "unreasonably disturb" neighboring tenants through excess noise is unconstitutional as an overly vague restriction on free speech.) Although the court concluded that the phrasing of the injunction was overbroad (note the similarity to the ordinance discussed above), it di dnot attack the basis for the injunction, a city code section that stated that it was unlawful to make or cause to be made a any loud or unreasonable noise. "Noise shall be deemed to be unreasonable when it disturbs, injures or endangers the peace or health of another . . .Any such noise shall be . . . a public nuisance." The injunction was issued pursuant to a public nuisance complaint. The court concluded that there was a public nuisance, but that the injunctive remedy was overbroad. Comment 1: As an example of a case where the court went after the regulators, and not the regulation, on this issue see Howard Opera House Assoc. v. Urban Outfitters, Inc., 322 F.3d 215 (2nd Cir. 2003), the DIRT DD for 4/28/03. (Injunction that states that occupants of land may not "unreasonably disturb" neighboring tenants through excess noise is unconstitutional as an overly vague restriction on free speech.) Although the court concluded that the phrasing of the injunction was overbroad (note the similarity to the ordinance discussed above), it did not attack the basis for the injunction, a city code section that stated that it was unlawful to make or cause to be made a any loud or unreasonable noise. "Noise shall be deemed to be unreasonable when it disturbs, injures or endangers the peace or health of another . . .Any such noise shall be . . . a public nuisance." The injunction was issued pursuant to a public nuisance complaint. The court concluded that there was a public nuisance, based upon violation of the zoning code, but that the injunctive remedy was overbroad. Go figure. Comment 2: There seems to be little question that noise regulation in general is a proper subject for zoning police power. In Berman v. Parker, Justice Douglas stated: "Public safety, public health, morality, peace and quiet, law and order - there are some of the more conspicuous examples of the traditional application of the police power to municipal affairs. . . . " 348 U.S. 26, 32 (1954) Village of Belle Terre v. Boraas (also a Douglas opinion) permitted a preference for single family housing and restrictions on more congested housing, in part because "noise travels with crowds." 416 US 1, 94 S.Ct. 1536, 1541 (1974) Thus, most states permit zoning regulation justified by considerations of reducing noise pollution. See, e.g.Gino's of Maryland, Inc. V. City of Baltimore, 244 A.2d 281 (Md. 1968) (drive in restaurant); Marchese v. Selectmen of Winchester, 42 N.E. 2d 817 (Mass. 1942) (bowling alley). But compare Exton Quarries, Inc. v. Zoning Board of Adjustment of Township of West Whiteland, 228 A. 2d 169, 181 (Pa. 1967) (restriction of quarrying operation due to noise from explosions held invalid - "While we can appreciate the great desirability of quiet and tranquility, this does not raise it to a consieeration of constitutional significance.." Note that the above cases address limitations on activities that cause noise, not limitations on the emission of noise itself. In the latter case, where noise that is restricted is an exercise of free speech, it would appear to raise special concerns, and a general prohibition of noise might be regarded as overbroad absent some exception. The question remains whether the exception can be in the application of the regulation, or whether it must appear on the face of the regulation itself. Readers are encouraged to respond to or criticize this posting. Items reported on DIRT and in the ABA publications related to it are for general information purposes only and should not be relied upon in the course of representation or in the forming of decisions in legal matters. The same is true of all commentary provided by contributors to the DIRT list. Accuracy of data provided and opinions expressed by the DIRT editor the sole responsibility of the DIRT editor and are in no sense the publication of the ABA. Parties posting messages to DIRT are posting to a source that is readily accessible by members of the general public, and should take that fact into account in evaluating confidentiality issues. ABOUT DIRT: DIRT is an internet discussion group for serious real estate professionals. Message volume varies, but commonly runs 5 - 15 messages per work day. Daily Developments are posted every work day. To subscribe, send the message subscribe Dirt [your name] to listserv@listserv.umkc.edu To cancel your subscription, send the message signoff DIRT to the address: listserv@listserv.umkc.edu for information on other commands, send the message Help to the listserv address. DIRT has an alternate, more extensive coverage that includes not only commercial and general real estate matters but also focuses upon residential real estate matters. Because real estate brokers generally find this service more valuable, it is named “BrokerDIRT.” But residential specialist attorneys, title insurers, lenders and others interested in the residential market will want to subscribe to this alternative list. If you subscribe to BrokerDIRT, it is not necessary also to subscribe to DIRT, as BrokerDIRT carries all DIRT traffic in addition to the residential discussions. To subscribe to BrokerDIRT, send the message subscribe BrokerDIRT [your name] to listserv@listserv.umkc.edu To cancel your subscription to BrokerDIRT, send the message signoff BrokerDIRT to the address: listserv@listserv.umkc.edu DIRT is a service of the American Bar Association Section on Real Property, Probate & Trust Law and the University of Missouri, Kansas City, School of Law. Daily Developments are copyrighted by Patrick A. Randolph, Jr., Professor of Law, UMKC School of Law, but Professor Randolph grants permission for copying or distribution of Daily Developments for educational purposes, including professional continuing education, provided that no charge is imposed for such distribution and that appropriate credit is given to Professor Randolph, DIRT, and its sponsors. DIRT has a WebPage at: http://www.umkc.edu/dirt/ Members of the ABA Section on Real Property, Probate and Trust Law or of the National Association of Realtors can subscribe to a quarterly hardcopy report that includes all DIRT Daily Developments, many other cases, and periodic reviews of real estate oriented literature and state legislation by contacting Antonette Smith at (312) 988 5260 or asmith4@staff.abanet.org ----- To be removed from this mailing list, send an email message to listserv@listserv.umkc.edu with the text SIGNOFF DIRT. Please email manager@listserv.umkc.edu if you run into any problems. See for more information.