12/28/18: NOISE AND NUISANCES IN SOUTHERN SHORES: A Town Code Overview

 

(252) 473-3444 . . . (252) 473-3444 is the number you call to reach the Dare Central Communications Center to report a non-emergency police matter, such as a violation of the Southern Shores noise ordinance.  A Southern Shores police officer will be dispatched to the scene of the alleged offense. Dare Central 911 is the number you call for emergencies. You need not identify yourself when you call.

In The Beacon’s last blog, I reported that I observed SAGA Construction & Development violating the Southern Shores noise ordinance on Dec. 23, by having workers engage in construction activities at 98 Ocean Blvd. on a Sunday. (See The Beacon’s blog, 12/23/18.)

The noise ordinance, which is section 22-3 of the Town Code, prohibits the erection, demolition, alteration, or repair of “any building” on Sundays or between the hours of 8 p.m. and 7 a.m. on weekdays and Saturdays, except in a case of “urgent necessity” and then only with a temporary permit. (Sec. 22-3(15))

I could have reported SAGA’s violation to the police by calling the Dare Central number printed above. I elected not to, as a courtesy-warning, although the Kill Devil Hills developer surely knows, or should know, the local law.

Instead, I informed the construction workers on-site of their offense. I also reported the offense to Deputy Town Manager/Planning Director Wes Haskett yesterday–the day Town Hall reopened after the Christmas break. Mr. Haskett promptly responded to my email, telling me that he would speak to the contractor. If I observe construction activity at 98 Ocean Blvd. again on Sunday, I will definitely call Dare Central and would ask you to do the same. [Update: See my reply to a comment about this blog post.]

All violations of the Town noise ordinance are class 3 misdemeanors, punishable by a fine of not more than $500. (See Town Code sec. 1-6(b)(5).)

A few days after the SAGA incident, I was conversing with a Chicahauk resident about the no-Sunday construction ordinance—he had never heard of the restriction—and he brought up the problem of barking dogs. He had approached his neighbors about the frequent, continuous barking of their dogs, who keep him awake at night, and received no satisfaction. I suggested contacting the police, but he is loath to do so.

Our conversation led to this blog:

PROHIBITED LOUD NOISES IN SOUTHERN SHORES

The Southern Shores Town Code prohibits any “unreasonably loud noise in the town” and declares certain enumerated acts to be “loud, disturbing noises.” On the list of such noises, which is not meant to be exclusive, are the following, which The Beacon believes you are most likely to encounter in your community:

“The use of phonographs, loudspeakers or sound amplifying devices” (sec. 22-3(b)(3): If music is so loud “as to disturb persons in the vicinity,” then the person creating it may be committing a criminal offense. Call Dare Central.

“Loud animal noises” (sec. 22-3(b)(4): Most of us are willing to tolerate barking dogs every now and then, and the Town Code ordinance reflects our neighborliness. The ordinance prohibits “the keeping of any animal which, by causing frequent or long continued noise, shall disturb the comfort and repose of any person in the vicinity.” I think my Chicahauk friend has a good argument about the dogs barking all night in yards next to his.

“Grating, grinding, rattling noises” (sec. 22-3(b)(5): Any person who uses an automobile, motorcycle, or other vehicle in a manner so as to create “loud grating, grinding, rattling, or other noise,” or “squealing or screeching of tires,” or the propulsion of “rocks, gravel, or sand” violates the Town noise ordinance.

These are just three of the 15 expressly enumerated acts deemed to be legally actionable loud, disturbing noises in the Town Code, with the construction noise I previously mentioned being the 16th. Other prohibited noises include sounding horns or signal devices on vehicles; exhaust noises; mechanical devices using compressed air; and drums or devices for attracting attention to “any performance, show, sale, or display of merchandise.”

The noise ordinance of the first-ever Town Code, enacted in 1988, clearly shows an animus toward what I would call “commercial” noise, such as the “shouting or crying of peddlers or hawkers”—who, in my opinion, were quite charming and convenient in their day—“mechanical loudspeakers on trucks for advertising,” and the “delivery of commercial goods during certain hours.” (The first two raise First Amendment issues.)

Subsequent Town Councils have amended the noise ordinance to exempt noises associated with 1) the dredging of the canals and with 2) public beach nourishment projects approved by the Town.

In prohibiting “unreasonably loud noises,” the Town is exercising its municipal authority to regulate for the health, welfare, and safety of the public. This power is fundamental to a municipality’s governance. But a municipality cannot trample on the First Amendment rights, or any other constitutional rights, of individuals in exercising this power.

PUBLIC NUISANCES IN TOWN

Quite separate, but related conceptually, to the noise ordinance is the Town’s ordinance on nuisances, which you’ll find at Town Code sec. 22-39. Unlike noise offenses, however, public nuisances are civil matters, not criminal matters.

Civil penalties levied in Southern Shores for nuisance violations can be quite severe because each day that a violation continues is a separate violation. So, if you’re ordered to pay a civil penalty of $500 for a nuisance, you will have to pay an additional $500 for every day that the nuisance continues, unabated. (But, see the nuisance investigation process, below.)

It is the Town Manager, not the police, who initiates an investigation of a nuisance complaint, after receiving notice. (Sec. 22-40.)

Among the 13 nuisances enumerated in the Southern Shores ordinance are the following:

“Growth of weeds and grass” (sec. 22-39(1): A person cannot allow the “uncontrolled growth of noxious weeds or grass” to cause or threaten to cause a public hazard.

“Accumulations of animal or vegetable matter” (sec. 22-39(2)): These would be accumulations that are offensive “by virtue of odors or vapors, or by the inhabitation therein of rats, mice, snakes, or vermin of any kind,” such that they are “dangerous or prejudicial” to the public health.

“Accumulations of rubbish” (sec. 22-39(3)): Similarly, accumulations of rubbish, trash, or junk that threaten to cause or do cause a fire hazard, or stagnant water to accumulate, or the vermin listed above to take up habitation, are public nuisances.

“Conditions violating health department rules” (sec. 22-39(4): This is a catch-all provision. Any condition that is detrimental to the public health and violates county health-department rules is a public nuisance.

The ordinance goes on to cite burned or partially burned buildings that are unsightly or hazardous; storm- or erosion-damaged structures and resulting debris; the growth of trees and shrubs on canal banks that threaten to cause or do cause a hazard to boating public safety or to navigation; abandoned personal property; and damaged household contents and buildings, etc.

A condition causing obstruction of any public street, sidewalk, alley, or bridge in town is also defined as a public nuisance. That’s one to keep in mind when monitoring a construction site where vehicles spill out on to the road. (sec. 22-39(7))

Similarly, it is a criminal offense in Southern Shores for a person to “cause a condition” that blocks or damages public streets, sidewalks, alleys, and bridges in town. (Sec. 22-2) All public streets must be open for travel and free of unnecessary obstructions.

If the appropriate county health department or Town official determines after conducting an investigation that a condition constitutes a public nuisance, the Town Manager must notify in writing the person responsible for the condition(s) and order a prompt abatement within 15 days of his/her receipt of the written notice.

As I understand the civil-penalty provision in Town Code sec. 1-6(d)(3), it is only after the nuisance perpetrator fails, neglects, or refuses to abate or remove the nuisance-causing condition that the Town may issue a citation for the violation and assess the $500-a-day penalty.

Noise and nuisance laws are important for the preservation and protection of the public’s health, welfare, and safety, but they should be narrowly drawn, so as not to be oppressive. Although we live in a much busier and noisier town than we did 30 years ago when the Southern Shores laws were first enacted, we have not yet become immune to the damage caused by what they seek to prevent.

(Please forgive the multiple email notices you received for this blog. I had difficulty with posting a photograph, so I twice deleted the blog entry and reposted a photo. My original photo, which was clip art, didn’t take. My apologies.)

Ann G. Sjoerdsma, Dec. 28, 2018