Village of Montebello, NY Noise

The Village Board determined to study the Village's "Noise Law" upon the complaint of residents reportedly frustrated, believing that it was archaic and virtually unenforceable. The residents claimed that this is due to a highly technical or subjective approach to ascertaining whether a violation had occurred. It was suggested, instead, that a "plainly audible" standard be established, to be added to those already in place.

The Village Attorney, directed to study the subject and report, found instances where the "plainly audible" standard had been adopted mainly for amplified music but also for other sounds. In some cases the statutes also continued with a technical standard based upon a sound level dB(A) measurement, as well, plus certain sources were deemed as inherently obtrusive, with time imitations, such as leaf blowers, chain saws and unmuffled or inadequately muffled internal combustion engines.

A-WEIGHTED SOUND LEVEL [dB(A)]

In this review process, the Village Attorney and the Trustees expressed concern that in our Village, with generally low ambient noise and large parcels, virtually any amplified music sound generation would be "plainly audible" over a wide range of distances. Hence, there was concern that the Village could become overwhelmed with prosecutions, making the law a sword, instead of a shield, neighbor to neighbor. To guard against this, this amendment[1] limits the applicability of “plainly audible” to sound heard within the complainant’s home with the windows closed. In addition it requires corroboration by a law enforcement officer or other Village designee, such as the Building Inspector or Village Engineer.

[1]

Editor's Note: "This amendment" or "the amendment" in Subsection B(3) and (4), respectively, refers to amendments adopted by L.L. No. 1-2012.

(4)

A noise consultant assisted with the drafting of the amendment.

§ 118-3 Definitions.

All terminology defined herein which relates to the nature of sound and the mechanical detection and recordation of sound is in conformance with the terminology of the American National Standards Institute or its successor body.

Unless the context otherwise clearly indicates, the words and phrases used in this chapter are defined as follows:

The sound pressure level in decibels as measured on a sound meter using the A-weighting network slow response. The level so read is designated dB(A).

COMMERCIAL DISTRICT

An area where offices, clinics and the facilities needed to serve them are located; an area with local shopping and service establishments; a tourist-oriented area where hotels, motels and gasoline stations are located; a business strip along a main street containing offices, retail businesses and commercial enterprises; and other commercial enterprises and activities which do not involve the manufacturing, processing or fabrication of any commodity. "Commercial district" shall include but shall not be limited to any parcel of land zoned commercial under Chapter 195, Zoning.

COMMERCIAL PURPOSE

Includes the use, operation or maintenance of any sound-amplifying equipment for the purpose of advertising any business, any goods or any services or for the purpose of attracting the attention of the public to or advertising for or soliciting the patronage of customers to or for any performance, show, entertainment, exhibition or event or for the purpose of demonstrating any such sound equipment.

CONSTRUCTION ACTIVITIES

Any and all activity incidental to the erection, demolition, assembling, altering, installing or equipping of buildings, structures, roads, or appurtenances thereto, including land clearing, grading, excavating and filling.

CONTINUOUS NOISE

A steady, fluctuating or impulsive noise which exists, essentially without interruption, for a period of 10 minutes or more, with an accumulation of an hour or more over a period of eight hours.

DECIBEL (dB)

A unit of level which denotes the ratio between two quantities which are proportional to power. The number of decibels corresponding to the ratio of two amounts of power is 10 times the logarithm to the base 10 of this ratio.

DEVICE

Any mechanism which is intended to produce or which actually produces sound when operated or handled.

EMERGENCY

Any occurrence or set of circumstances involving actual or imminent physical trauma or property damage which demands immediate action.

EMERGENCY WORK

Any work performed for the purpose of preventing or alleviating the physical trauma or property damage threatened or caused by an emergency.

FLUCTUATING NOISE

The sound pressure level of a fluctuating noise which varies more than six dB(A) during the period of observation when measured with the slow meter characteristic of a sound-level meter.

IMPULSIVE SOUND

A sound of short duration, usually less than one second, with an abrupt onset and rapid decay. Examples of sources of impulsive sound include explosions, drop forge impacts and the discharge of firearms.

INDUSTRIAL DISTRICT

An area in which enterprises and activities which involve the manufacturing, processing or fabrication of any commodity are located. "Industrial district" shall include but shall not be limited to any parcel of land zoned as an industrial district under Chapter 195, Zoning.

L-10

The level exceeded 10% of the time.

MOTOR VEHICLE

Any vehicle, such as but not limited to a passenger vehicle, truck, truck-trailer, trailer or semitrailer, propelled or drawn by mechanical power, and shall include motorcycles, snowmobiles, minibikes, go-carts and any other vehicle which is self-propelled.

NOISE

Any sound which annoys or disturbs humans or which causes or tends to cause an adverse psychological or physiological effect on humans.

NOISE DISTURBANCE

Any sound which endangers or injures the safety or health of humans or animals or annoys or disturbs a reasonable person of normal sensitivities or endangers or injures personal or real property.

NOISE SENSITIVE ZONE

Any area designated pursuant to this chapter for the purpose of ensuring exceptional quiet.

NONCOMMERCIAL PURPOSE

The use, operation or maintenance of any sound equipment for other than a commercial purpose. "Noncommercial purpose" shall mean and include but shall not be limited to philanthropic, political, patriotic and charitable purposes.

PERSON

Any individual, association, partnership or corporation, including any officer, employee, department, agency or instrumentality of the state or any political subdivision of a state.

PLAINLY AUDIBLE

"Plainly audible sound" means any sound for which any of the content of that sound, such as but not limited to comprehensible musical rhythms, is communicated to a person using his or her unaided hearing faculties. For the purposes of enforcement of this chapter, the detection of any component of music, including but not limited to the rhythmic bass by a person using his or her unaided hearing faculties, is sufficient to verify plainly audible sound. It is not necessary for such person to determine the title, specific words or artist of such music. Plainly audible sound does not require a measurement with a sound level meter.

[Added 3-21-2012 by L.L. No. 1-2012]

REAL PROPERTY BOUNDARY

A line along the ground surface, and its vertical extension, which separates the real property owned by one person from that owned by another person, but not including intrabuilding real property divisions.

RESIDENTIAL DISTRICT

An area of single- or multiple-family dwellings and shall include areas where multiple-unit dwellings, high-rise apartments and high-density residential districts are located. "Residential district" shall also include but is not limited to hospitals, nursing homes, homes for the aged, schools, courts and similar institutional facilities.

SOUND

An oscillation in pressure, particle displacement, particle velocity or other physical parameter in a medium with internal forces that causes compression and rarefaction of that medium. The description of "sound" may include any characteristics of such sound, including duration, intensity and frequency.

SOUND-LEVEL METER

An instrument, including a microphone, an amplifier, an output meter and frequency weighting networks for the measure of sound levels.

SOUND PRODUCTION DEVICE

Any device that is designed to be used or is actually used for the production or reproduction of sound, including but not limited to any musical instrument, radio, television, tape recorder, phonograph, loudspeaker, public-address system or any other sound-amplifying device.

[Amended 3-21-2012 by L.L. No. 1-2012]

UNREASONABLE NOISE

Any excessive or unusually loud sound or any sound which either annoys, disturbs, injures or endangers the comfort, repose, health, peace or safety of a reasonable person of normal sensitivities or which causes injury to animal life or damage to property or business. Standards to be considered in determining whether an unreasonable noise exists in a given situation include but are not limited to the following:

The volume of the noise.

The intensity of the noise.

Whether the nature of the noise is usual or unusual.

(4)

Whether the origin of the noise is usual or unusual.

(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 the zoning district of the areas within which the noise emanates.

(8)

The time of the day or night the noise occurs.

(9)

The time duration of the noise.

(10)

Whether the sound source is temporary.

(11)

Whether the noise is continuous or impulsive.

(12)

Plainly audible sound.

[Added 3-21-2012 by L.L. No. 1-2012]

(a)

Sound from a sound production device which is plainly audible, within the residence of a complainant, with the windows closed.

(b)

A Village representative’s corroboration is necessary to proving a violation of Subsection (12)(a). The Village representative, before concluding that such violation has occurred, shall attempt to address the problem by requesting that the person or persons controlling the sound production device cease producing the sound, turn same off, eliminating same, or lower same to a level that is below the plainly audible threshold. There shall be a presumption that the sound was being generated expressly to annoy and harass the complainant, or with indifference, and a prosecution shall ensue if said person or persons refuse to abate the sound; should the representative find no one at the premises despite the sound being emanated; if the person controlling the sound production device abates the sound at the direction of the representative and subsequently increases the sound levels upon the representative’s departure; or if a violation of Subsection (12)(a) is determined for a third time in any twelve-month period irrespective of the cooperation of the person or persons controlling the sound production device. Upon prosecution, the charged party may attempt to raise as a defense that circumstances beyond his or her control caused the generation of unattended plainly audible sound.

§ 118-4 Prohibited acts.

No person shall make, continue or cause or suffer to be made or continued any unreasonable noise as defined in § 118-3B hereof. In particular, without limitation of the foregoing provision of this section, the following enumerated acts are declared to be in violation of this section.

Animals. No person shall keep, permit or maintain any animal under his control which frequently or for continued duration makes sounds which create an unreasonable noise across a residential real property boundary. This provision shall not apply to veterinarian facilities.

Commercial, business and industrial operation. No person shall operate or permit to be operated on a sound source site a commercial business or industrial operation that produces an unreasonable sound level.

Construction.

No person shall operate or permit to be operated any tools, machinery or equipment used in construction, drilling or demolition work:

(a)

Between sunset and 8:00 a.m. the following day on weekdays or at any time on Sunday or legal holidays, such that the sound therefrom creates an unreasonable noise across a residential real property boundary.

[Amended 6-22-2005 by L.L. No. 4-2005]

(b)

At any other time such that the sound level at or across a real property boundary exceeds an L-10 of 60 dB(A) for the daily period of operation.

The provisions of this subsection shall not apply to emergency work.

Domestic power tools. No person shall operate or permit the operation of any mechanically powered saw, sander, drill, grinder, lawn or garden tool, snowblower or similar device used outdoors in residential areas between the hours of 10:00 p.m. and 8:00 a.m. of the following day, so as to cause an unreasonable noise across a residential real property boundary.

Explosives and similar devices. No person shall use or fire explosives or similar devices which create impulsive sounds so as to cause an unreasonable noise across a real property boundary.

[Amended 6-22-2005 by L.L. No. 4-2005]

Horns and signaling devices. No person shall cause or permit to be caused the sounding of any horn or other auditory signaling device on or in any motor vehicle except to serve as a danger warning.

Motor vehicle repairs and testing. No person shall repair, rebuild, modify or test any motor vehicle in such a manner as to cause an unreasonable noise across a residential real property boundary or within a noise sensitive zone.

Mufflers. No person shall discharge into the open air the exhaust of any steam engine, stationary internal-combustion engine, air-compressor equipment, motor vehicle or other power device, which is not equipped with an adequate muffler in constant operation and properly maintained to prevent any unreasonable noise or noise disturbance, and no such muffler or exhaust system shall be modified or used with a cutoff, bypass or similar device which causes said engines, vehicles or other power devices to create an unreasonable noise.

Noise sensitive zones. No person shall cause or permit the creation of any sound by means of any device or otherwise on any sidewalk, street or public place adjacent to any hospital, nursing home, school, court, house of worship or public library while such facility is in use at any time, so that such sound disrupts the normal activities conducted at such facilities or disturbs or annoys persons making use of such facilities.

Sound production devices.

[Amended 3-21-2012 by L.L. No. 1-2012]

No person shall operate or cause to be operated a sound production device that produces an unreasonable noise or noise disturbance across a real property boundary between the hours of 11:00 p.m. and 8:00 a.m. the following day or within a noise sensitive zone.

No person shall operate or use or cause to be operated or used any sound production device in any public place in such a manner that the sound emanating therefrom creates an unreasonable noise across a real property boundary, as more particularly set forth in § 118-3B, Subsection (12)(a) through (b), above.[1]

[1]

Editor's Note: See § 118-3, Definitions, Subsection B, under the definition of "unreasonable noise," Subsection (12)(a) and (b).

This section shall not apply to any person participating in a school band or in a parade, or sounds emanating from sporting, entertainment or other public events where such devices are used.

Trucks. No person shall load any garbage or trash on a compactor truck, or any other truck, whereby the loading, unloading or handling of boxes, crates, equipment or other objects is conducted within a residential district nor within 300 feet of any hotel or motel between the hours of 10:00 p.m. and 6:00 a.m. the following day.

[Amended 6-22-2005 by L.L. No. 4-2005]

§ 118-5 Exceptions.

The provisions of this chapter shall not apply to:

The emission of sound for the purpose of alerting persons to the existence of an emergency.

The emission of sound in the performance of emergency work.

The emission of sound by generators during emergencies.

[Added 3-21-2012 by L.L. No. 1-2012]

§ 118-6 Variances.

The Village Board of the Village of Montebello shall have the authority, consistent with this section, to grant variances to this chapter.

Any person seeking a variance pursuant to this section shall file an application with the Village Board. The application shall consist of a letter signed by the applicant and containing a legal form of verification. Such letter shall contain information which demonstrates that bringing the source of sound or activity for which the variance is sought into compliance with this chapter would constitute an unreasonable hardship on the applicant, on the community or on other persons. In addition, the following information shall be provided:

The plan, specifications and other information pertinent to such sources.

The characteristics of the sound emitted by the source, including but not limited to the sound levels, the presence of impulsive sounds and the hours during which such sound is generated.