How Can City Council Beef up the Noise Ordinance and be Realistic?

By Leslee Kulba- Asheville City Council was expected to adopt a noise ordinance prepared by Assistant City Attorney John Maddux. Maddux explained he has served as the city’s legal advisor for the Noise Ordinance Appeals Board for four-and-a-half years, but it only took him a few months to figure out that nobody was coming out of the meetings happy.

One reason was expectations were not realistic. People thought the board could issue injunctions to make people get rid of a dog or keep it inside, turn off the air conditioner, stop yelling, or close their bar. Currently, the Noise Board can only issue civil penalties for $50, and that has not been working as a deterrent.

To get a grip on the situation, Maddux asked the police department to notify him of all noise-related complaints. Maddux recalled barking dogs were a major source of complaints back in 1994. Now, calls mostly concern commercial noise, Mayor Esther Manheimer naming Mission Hospital, Salvage Station, and the Mulch Yard as the sources of most of the complaints she receives. The current ordinance, however, did not address commercial noise trespass. That, City Manager Debra Campbell said, would be tackled in a second phase.

The old and new ordinances defined as punishable noise that, “endangers or injures the health or safety of humans or animals, endangers or injures personal or real property, or disturbs a reasonable person of normal sensitivity.” When police arrive on the scene, they would evaluate factors like the volume, duration, and frequency of the sound, the time of day, and the proximity of the source to residential areas. If the problem is not remediated, the offending parties would be subject to escalating fees.

One thing Maddux suggested changing was the penalty. A few years ago, the General Assembly changed the law that waived filing fees for the city when collecting debt. Now, in light of the number of people who don’t pay citations, collection is a losing prospect. By making violations an infraction, the workload of processing the albeit noncriminal fines would be transferred to the criminal justice system. Raising fines to $100, Maddux predicted, would incentivize more compliance.

The infraction would work like a traffic fee. Offenders would pay $100 plus $188 in court costs. If a complainant was dissatisfied with the court’s decision, they could pursue recourse via a summons from the magistrate’s office.

Other changes included disbanding the Noise Board, since it has proven an ineffective “forum for adjudicating those complaints.” The new ordinance would also deal with construction noise via after-hours permits, meaning construction noise was to be expected during daylight hours, with exceptions to be granted by the building inspector.

Barking dogs were exempted because they’re governed by the animal control ordinance, and animal control officers can issue citations for civil penalties but not infractions. Maddux also worked to streamline and reduce ambiguity in the existing ordinance.

Vice Mayor Gwen Wisler thanked staff for their thorough work, and Councilor Vijay Kapoor made a motion to approve the amendments. During public comment, speakers expressed regret that the noise ordinance was not comprehensive and requested assurances that their grievances, already in the pipeline, would be adjudicated in accordance with the un-amended ordinance. Citing a recent murder in West Asheville, and a high-profile assault at the Asheville Mall, Jonathan Wainscott suggested police officers had more important things to do than administer a noise ordinance. Casey Campfield said $288 in fines was enough to “put a poor family out of their home.”

Then, Councilor Keith Young took the spotlight. He serves as a deputy clerk of superior court on his day job, so he was handy with answers, though lawyers in the room didn’t always agree. For all its talk about equity and inclusion, Young observed the city had not viewed the proposed amendments through the proverbial equity lens. “I am not comfortable at all opening up new pathways into the criminal justice system,” he said. He illustrated with a subjective offense, like playing music too loud in a car at a stop light or a dog barking. He said in his line of businesses, he processes thousands of failures to appear every week, just in Buncombe County. $288 is a lot for many people.

It was uncertain how noise infractions would be processed, but Young said a failure to appear for a traffic ticket leads to driver license suspension. If somebody tries to drive to work on a suspended license to earn enough money to pay the fine, they get arrested. If they can’t drive to court, they’re subject to a warrant for their arrest. For all the discussions the city had about written consent, there was nothing to prevent this ordinance from being weaponized. Kapoor withdrew his motion, leaving the impression staff will develop a comprehensive ordinance responsive to public input.

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