What can replace that maleable and useful standard?

As localities continue to struggle post-Tanner, many would say that noise decibel limits are the answer.  They are plainly objective.  However, it is not entirely clear that air pressure readings measured by noise meters is all that easier for the average person to understand than the “reasonable person” standard.  

Writing a decibel-based noise ordinance is on the one hand very easy.  Place decibel limits in zoning districts or locality-wide, perhaps with different standards for night versus daytime. 

But adopting decibel limits by ordinance is a notoriously difficult line-drawing exercise.   Why is 65 decibels a violation at 8:01 p.m but not at 7:59 p.m.?  Why is a higher noise level appropriate in a commercial zone and not right next door in an office zone?  A washing machine makes a noise quivalent to 75 decibels.  A conversation can easily reach 65 decibels.  But do you want to hear such a noise in your home as you try to sleep?  

Taking into account all of the differences in public perception and community consensus of what is appropriate and what is inappropriate noise is difficult.  A lawn mower is very, very loud, but acceptable during daytime for a while, right? Using a power saw during a nighttime storm to remove a branch that threatens your house is certainly not unreasonable, but writing that into a decibel-based ordinance is easier said than done. A locality may want to exempt in its ordinance common and accepted noises such as church bells or carillon music on Sunday morning.  But how to do this without facing a complaint that the locality is treating the sports bar opening early for the big NFL game that is just as loud unfairly?

Noise decibel limits are also not that easy for a typical law enforcement officer to apply and could have other disadvantages for enforcement.  See Debra Livingston, Police Discretion and the Quality of Life in Public Places: Courts, Communities and the New Policing, 97 Colum. L. Rev. 551, 614 (1997).  At a minimum, the right (fairly expensive) equipment and an authorized person trained to use it must be available at the time of the complaint and the noise.  I previously raised concerns with the difficulty of using decibel limits and meters on this blog.

We anticipate continued challenges to noise ordinances post-Tanner, and nearly as many creative ways to address the regulation of noise as there are Virginia local governments.  Will decibel levels be the answer to Tanner?

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Update: March 10, 2011 — In one Virginia county, the answer is “yes.”  Albemarle County adopted a noise ordinances for farm wineries using decibel levels with a civil penalty and did NOT adopt another noise ordinance using an “audible” standard and criminal penalties.  See article here.

To me, this involvement is healthy. Citizen involvement is a hallmark of local government, the part that makes it LOCAL. Local folks have access to government in their county, city or town. Unlike other levels of government, they actually get notice of meetings and can easily attend a public hearing or other public meeting on matters that impact them. Local citizens can access their local officials by phone, email, or by running into them in the grocery store. To me, this is the purest form of government of the people, by the people and for the people.

And, as I stated above, there is power in the people.

More and more, groups of citizens organize to oppose development to which they are opposed. They realize they CAN have an impact on the final vote. This has been described as the “Walmart effect” after the sometimes successful grassroots campaigns to defeat local land use approvals for the big box behemouth. Here is an article by the Saint Consulting Group on this “effect” which asserts that the “public can fight city hall.”

But the developers are catching on, too. Some have adopted the methods of the NIMBY crowd to actually SUPPORT development. Here is an article from Forbes magazine (Feb. 16, 2009) on the ability of some developers to tap into the power of the people.

As local government attorneys, we often sit on are on the sidelines watching the politics unfold. I expect to see more of these types of grassroots tactics, both for and against development in the future.