Proposed new rules wouldn’t require officers to use a decibel meter — or even witness the noise firsthand — to issue citations. The draft ordinance would also exempt city-owned venues like Greenfield Lake and the planned Live Nation venue at the Northern Waterfront Park. Also new: appeals can be made to Wilmington’s Chief of Police.

WILMINGTON — The City of Wilmington’s attempt to clarify and streamline its noise ordinance has been contentious and occasionally confusing. This week, city staff attempted to clear up misconceptions and lay out a revised draft for new rules.

Related: Wilmington considers complete rewrite of noise code, Council worries about red tape

Those rules include some key new provisions, including exemptions for city-owned venues – including the Hugh Morton Amphitheater at Greenfield Lake, Legion Stadium, and the planned Live Nation venue. It also includes more specific rules about how law enforcement can determine if there is a noise violation, clarifying that officers do not need to measure the decibel level – or even be present while the noise is generated – to issue citations.

The new ordinance also lays out an appeal process. The current ordinance offers no method to appeal (unlike other code enforcement fines which can be taken to the city’s Board of Appeals). As reported by WECT, this ended up costing Wilmington $30,000 in settlement and legal fees when a resident sued the city, claiming that the lack of appeal process was unconstitutional; the city also agreed to include an appeal process in a revision of the ordinance.

The new ordinance would start allowing louder ‘daytime’ noises earlier, at 6 a.m. instead of 7 a.m., but would still run until 11 p.m. It would not change the existing maximum sound levels:

• Downtown – Daytime: 75 dB(A) / Nighttime: 65 dB(a)
• Residential – Daytime: 65 dB(A) / Nighttime: 55 dB(a)
• Commercial/Industrial – Daytime: 75 dB(A) / Nighttime: 70 dBA

During Monday’s agenda briefing, Mayor Pro Tem Margaret Haynes reiterated concerns about the new 6 a.m. start time; the final version of the ordinance may be adjusted accordingly, depending on staff input.

(Author’s note: 50 dB(A) is about the level of light traffic or a refrigerator, 55 to 60 dB(A) is a normal conversation or an air conditioner, 70 dB(A) is a dishwasher or shower, 75 dB(A) is a vacuum cleaner or toilet flushing, 80 dB(A) is a garbage disposal.)

More permits required

The original version of the new ordinance would have required permits for all outdoor events featuring amplified music or sound; the revised draft requires permits only for events where noise levels will exceed maximum levels. Still, the regulations will require considerably more permitting:

“A noise permit shall be obtained in advance for any activity where the sound level to be produced exceeds or should be reasonably expected to exceed the sound level limits or time limits set out in this Article on any other property,” according to the draft ordinance.

Related: Brewery owner: Noise citation at charity concert sets unhealthy precedent for Wilmington music scene

Due to this increase, the city will allow up to 30 events per individual permit (with not more than a calendar year between the first and last event on the permit).

The city will consider the following criteria for approving or denying a permit application:

1. The use and activities permitted by the zoning regulations in such areas;
2. The intensity of sound levels regularly produced by activities and devices in such areas;
3. The time at which the sound amplification will occur;
4. The duration of the requested amplification;
5. The proximity of the requested activity to commercial buildings and residential dwellings, and the density of the surrounding commercial and residential areas;
6. The history of verified complaints generated by previous activities similar in nature and context;
7. The history of noise complaints against the applicant from adjoining or neighboring properties;
8. Whether the sounds produced by such devices and activities are plainly audible, recurrent, intermittent, impulsive, or constant;
9. Failure to complete the application properly;
10. The necessity of the requested amplification.

Exceptions

The new ordinance includes a number of exceptions, allowing noise levels over the regulated levels within the new daytime hours (exceptions won’t apply between 11 a.m. and 6 a.m.).

New exceptions are allowed for “legitimate” events, including athletic events at city parks or any New Hanover County School facility inside city limits. It also includes concerts and other events at the Hugh Morton Amphitheater, Legion Stadium, and the Northern Waterfront Park, which will be operated by Live Nation.

The ordinance retains a number of other exceptions, including emergency vehicles, parades, street fairs, permitted film or video productions, garbage and recycling between 6 a.m. and 11 p.m., lawnmowers and power tools, and other permitted sources.

Enforcement

How exactly law enforcement determines a noise code violation has been confusing – for residents, business owners, and officers alike.

The new ordinance clarifies that law enforcement does not need to use a decibel-measuring device – although it does lay what criteria a device must meet and where measurements are to be taken (the boundary of the property where a complaint originates) if it used. The use of unapproved sound measuring devices – including smart-phone apps – is prohibited. The new regulations also require any officer using such a device to be properly trained.

Officers are also not required to personally witness the sound violation to issue a citation.

“An officer does not have to use a sound level meter or actually witness the sound or noise personally in order to take enforcement action under this section. Citations may be issued based upon statements and evidence obtained from complaining witnesses when the officer determines that such evidence is reliable, appropriate, and sufficient,” the draft ordinance states.

The new regulations lay out criteria for officers to evaluate potential violations:

1. The volume of the noise;
2. The intensity of the noise;
3. Whether the nature of the noise is usual or unusual;
4. Whether the origin of the noise is natural or unnatural;
5. The volume and intensity of the background noise, if any;
6. The proximity of the noise to residential sleeping facilities;
7. The nature and zoning of the area from which the noise emanates;
8. The density of the inhabitation of the area from which the noise emanates;
9. The time of the day or night the noise occurs;
10. The duration of the noise;
11. Statements of any complaining witnesses, including any pictures or audio/video documentation produced by complaining witnesses; and,
12. Whether the noise is recurrent, impulsive, intermittent, or constant.

The ordinance makes it unlawful to “communicate a noise complaint to any City staff or official, using the 911 system or otherwise, for the purpose of harassing the subject of the complaint, and knowing or having reason to know that no noise disturbance actually exists or existed. “

The ordinance also gives the city some ability to fine “absentee owners” – that is, landlords or short-term rental owners – if there are three or more violations within a 12-month period.

Appeals

At the root of the city’s effort to rewrite its noise ordinance was the lack of an appeals process. The new draft version puts Wilmington’s Chief of Police in charge of handling appeals.

The ordinance gives anyone cited under the ordinance 10 days (calendar, not business) to file a written appeal to the Chief of Police, stating all reasons that the civil penalty was wrongly applied and shall include all supporting documentation that the appellant contends supports the appeal.”

The Chief of Police – “or his/her designee at the rank of Bureau Commander or higher” – then has ten working days to decide “whether the disputed civil penalty will be approved without change or modified or reversed.”

Decisions will be served – like court notices – on the person appealing.

Further appeals would only be possible by filing a writ of certiorari suit in New Hanover County Superior Court.

Vote and possible hearing

According to Deputy City Attorney Meredith Everhart, the draft ordinance may see further tweaks before it heads to City Council for a vote next month, on July 16; council is not required to hold a public hearing before approving the new ordinance but may opt to do so.

You can find the current noise ordinances here. You can find the revised draft ordinance presented to city council this week below.

Wilmington Draft Noise Ordinance – June 17, 2019 – Port City Daily by Ben Schachtman on Scribd

Send comments and tips to Benjamin Schachtman at ben@localvoicemedia.com, @pcdben on Twitter, and (910) 538-2001