No noise is bad noise in Fairfax County — for now

November 29, 2013

Geri Johnson couldn’t believe it.

Living in an apartment in the Alexandria area of Fairfax County, she was tormented by a next-door neighbor who had continuously barking dogs and an upstairs neighbor who apparently juggled bowling balls badly. After various direct pleas and landlord-tenant appeals went nowhere, she called the police.  And the Fairfax police told her, both orally and in writing, that the barking dogs and bowling balls were unfortunate, but “there is nothing we can do currently from a police department standpoint to address the noise issue.” Johnson said an officer even informed her tormenting neighbor that the police could not issue a citation for her dogs.

Would a woman with a bullhorn be violating a local noise ordinance in Virginia? What about a bullhorn into a microphone? (Chip Somodevilla/Getty Images)
Would a woman with a bullhorn be violating a local noise ordinance in Virginia? What about a bullhorn into a microphone? (Chip Somodevilla/Getty Images)

And it turns out that for the last four years, the Fairfax County police have (quietly) not been enforcing the county’s noise ordinance on instructions from the county attorney, police Maj. Mike Kline said. This is because in  April 2009 the Virginia Supreme Court ruled that Virginia Beach’s noise ordinance was unconstitutional — too vague and allowed police officers to decide what was “reasonable,” Justice Barbara Milano Keenan wrote. That ruling quickly spread around the state and essentially invalidated most county and city noise ordinances because they didn’t specifically define illegal sound levels.

“It’s like I’m living in a Twilight Zone,” Johnson said. “These cops think I’m the problem. I’m a reasonable, normal person with normal hearing…I would invite any one of the Board of Supervisors to come in and live for a week. They couldn’t hack it.”

But Fairfax is now moving fairly quickly to amend its law, and has scheduled a board of supervisors hearing for Tuesday because “as the holiday party season nears,” a county board item noted last week, an updated law is needed “to address loud party complaints from residents, among other sources of excessive sound.”

Meanwhile, Arlington has been engaged in a lengthy process to update its noise ordinance, involving many meetings with the public to hash out what is too loud in both residential and commercial areas. Arlington police have continued to enforce the noise ordinance, code enforcement manager Gary Greene said, but have summoned code enforcement inspectors with sound meters to prove violations until the new law is ratified.

This all unfurled after the owners of the Peppermint Beach Club, on Atlantic Avenue in Virginia Beach, challenged their city’s noise ordinance. They had received warnings and citations from police for noise violations, although they said there had been no public complaints. They felt they were being targeted because of their music, described by the Supreme Court as “‘hip-hop’, ‘punk rock,’ ‘emo’ and ‘indie’ music.” Outrageous!

The Virginia Beach law prohibited any “unreasonably loud, disturbing and unnecessary” noise deemed “detrimental to the life or health of persons of reasonable sensitivity.” The Peppermint Beach Club argued that “reasonable” as a noise standard is too subjective. At trial, the city’s officers “conceded that ‘reasonableness’ is a standard that depends on an individual officer’s assessment,” Justice Keenan wrote.

Keenan agreed with the Peppermint club. Noise that may be unreasonable to one person “may not disturb the sensibilities of another listener.” Because “loud, disturbing and unnecessary” and “reasonable” are inherently vague adjectives, the code didn’t provide anyone specific guidance on what was illegal, and delegated that decision to individual officers. “The entire ordinance is unconstitutional because it is vague,” Keenan concluded in the now landmark case, Tanner v. City of Virginia Beach. (Peppermint Beach Club v. Virginia Beach would’ve been better.)

Virginia Beach appealed to the U.S. Supreme Court, which declined Tanner in 2010. In Richmond and Warren County, similar noise ordinances were also struck down based on Tanner. “Is the reasonable person dead in Virginia?” municipal law expert and former Culpeper and Goochland county attorney Andrew McRoberts wrote at the time, noting that “reasonable” was a perfectly, well, fine legal standard in many other areas of the law.

McRoberts said in an interview that Virginia municipalities have taken several different routes to deal with Tanner. They have inserted specific decibel levels as violations, though he said police dislike having to buy expensive sound meters and train on them. Or cities and counties can adopt a standard that the noise can be heard from a certain distance away. Or they can make a noise violation a civil rather than a criminal case. Or they can choose not to have a noise ordinance. “In some communities, that’s an acceptable decision,” McRoberts said. “There’s no law that says you have to have a noise ordinance.”

The lack of a noise ordinance in Fairfax wasn’t hugely concerning to police because most of the time when a uniformed officer shows up at your door and tells you to turn it down, or muzzle that mutt, you do, Kline said. “Our officers are very adept at conflict resolution,” Kline said. “So very few citizens don’t know we can’t take action. But the ones who don’t comply create a long night for their neighbors and those are the ones we hear from the next day or contact the board of supervisors.” He agreed with McRoberts that spending $3,500 for a single sound meter, much less lots of them, and training on them was not practical.

The Fairfax police received an average of 152 noise complaints a month in 2012. Most were resolved peaceably, but “with the increasing volume of calls for service regarding loud parties and other noise complaints,” county spokeswoman Merni Fitzgerald said, “we decided it was time to move forward with this action.”

Johnson, tormented by the neighbor’s dogs, contacted Supervisor Jeff McKay, who said he’d heard from individuals and from a citizens group in Springfield near an industrial park who were troubled by noise. The current Fairfax law defines “noise disturbance” very similarly to Virginia Beach’s, as “any unnecessary sound which annoys, disturbs or perturbs reasonable persons with normal sensibilities.” Reasonable? Normal? No good.

A newly created section doesn’t mention reason or normalcy. It talks about “discernible” sound, and if you make “a sound that is audible in any other person’s residential dwelling with the doors and windows to the other person’s residential dwelling closed,” that’s a violation. There are exceptions for lawn care and church bells and such, but don’t be cranking a speaker on the exterior of any structure after 11 p.m.

Arlington has gone through a lengthy process to amend its law, to deal with both its differing neighborhoods and its increasingly diverse population, Greene said. The old law again describes a noise disturbance as one which “annoys or disturbs a reasonable person of normal sensitivities.” That is out. Instead, it shall be unlawful to make an amplified sound that can be heard 20 feet from the source of the sound in another dwelling, or 50 feet across property boundaries. For animals, the barking or squawking must be heard at least once per minute for 10 consecutive minutes, the new Arlington law proposes.

Arlington hopes to have its ordinance advertised in January, and have a full board hearing in February, after which the law could go into effect immediately. Fairfax advertised its ordinance on Nov. 19 and is having a full board hearing on Tuesday, after which it also could go into effect, though it is looking at a fuller revision of the law next year.

There is no movement to update the code or stop enforcing noise ordinances in Alexandria, Loudoun or Prince William. Alexandria’s code defines noise as “any sound which annoys or disturbs humans,” and police spokeswoman Ashley Hildebrandt said police were still enforcing it. In Loudoun, the “Unreasonable Noise” (uh oh) law makes “excessive, unnecessary or unusually loud noises which are prolonged, unreasonable or unusual” illegal and that is still being enforced, sheriff’s spokeswoman Liz Mills said.

In Prince William, noise is defined as endangering or injuring people or exceeding “the applicable maximum permissible sound levels” in an adjacent decibel table. Sgt. Kim Chinn said Prince William police are equipped with sound meters and are trained to make readings and issue citations. Prince William’s law also prohibits sound “audible at a distance of 50 feet outside a building or audible through partitions common to two or more residences within a building.”

A full explanation of Arlington’s proposed noise ordinance changes is here.

Fairfax’s proposed changes are here, on pages 77-84.

Tom Jackman is a native of Northern Virginia and has been covering the region for The Post since 1998.
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