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Townships often use police power ordinances for the regulation of noise. But noise regulation presents unique problems in determining how to objectively determine when a certain noise reaches the threshold of being too loud for a community. In addition to the standard issues of authority and reasonableness inherent in any kind of regulation, noise regulations currently under review by the Michigan Court of Appeals. That decision has suggested that some communities may need to consider amendments to their noise regulations. This E-Letter discusses the historical authority for townships to impose noise regulations and the recent scrutiny of noise regulations by the Michigan Court of Appeals.

Use of Police Power Ordinance to Regulate Noise

Most of us are familiar with non-zoning ordinances, otherwise called a “police power” ordinance or a “general” ordinance to regulate noise and certain activities known to create unnecessarily loud noise. These regulatory ordinances are justified as protecting the public health, safety and general welfare. The authority to adopt such ordinances is implied under the Michigan Constitution, art 7, § 34, and expressly granted by MCL 41.181, sometimes referred to as the Township Ordinances Act, which provides that: “The township board … may adopt ordinances regulating the public health, safety, and general welfare of persons and property…”

Many townships use police power or general ordinances to control noise, disturbing the peace and other related topics of public nuisances (such as blight). The courts have provided general sweeping guidelines for valid and enforceable noise regulations. The ordinance must not be arbitrary and unreasonable with no relation to controlling the impact of noise on the public health, safety, and welfare of the community. Village Belle Terre v Boraas, 416 U.S. 1, 8 (1974). In other words, the regulation should bear a “rational relationship” to a permissible objective of the municipality—controlling “unnecessarily loud” or “disturbing” noise.  Reed v Town of Gilbert, 404 U.S. 71 (2015).

That Is Too Loud for the Reasonable Person

Many of the noise regulations currently adopted by townships satisfy the general principle of being reasonable and related to the purpose of prohibiting excessive noise. To determine the level of noise that violates the ordinance, townships often rely on a person of reasonable sensitivities. This means that a noise does not violate a township ordinance unless it would be found to be unreasonably loud, excessive or harsh to a person of reasonable sensitivities. This “reasonable person” is essentially a legal fiction created by case law that sets forth the standards upon which a noise would be considered excessive, and therefore in violation of a specific ordinance. Reading all of the case precedent together, the reasonable person resembles an individual in the community who has a judgment similar to the typical member of the community when presented with a level of noise that harms the public.

For instance, an ordinance could prohibit the use of any vehicle with an altered exhaust system that creates a loud noise that disturbs a person of reasonable sensitivities. A township officer applying the ordinance may find in that community that a NASCAR stock car accelerating through the community disturbs a person of reasonable sensitivities. If pursued in court, a judge would ultimately decide whether the noise produced from such a vehicle is so loud that it would disturb or annoy a reasonable person.

The seminal case on the reasonable person standard is Township of Plymouth v Hancock, 236 Mich App 197; 600 NW2d 380 (1999). In that case, the ordinance prohibited “a person to disturb the public peace and quiet by shouting, whistling, loud, boisterous, or vulgar conduct, the playing of musical instruments, phonographs, radios, televisions, tape players or any other means of amplification at any time or place so as to unreasonably annoy or disturb the quite, comfort and repose of person in the vicinity.” Id. at 198 (emphasis added).

An individual charged with violating the ordinance challenged the ordinance as unconstitutionally vague. Vagueness is a legal concept that is often debated in ordinance enforcement actions. Under applicable constitutional law, an ordinance (or statute) must be read and understood by the average citizen or otherwise may be deemed “vague” by a court. As it applies to noise ordinance, courts will require that the noise ordinance be of sufficient specificity that the conduct that is prohibited can be understood by a citizen in the community. Returning to the example above, this means that a court could find that prohibiting vehicles with altered exhaust systems based on a level of noise that disturbs or annoys reasonable person is of sufficient specificity to allow any resident in the community to understand that operating a loud NASCAR stock car on the streets of the township is prohibited. The courts are also concerned with providing the officer enforcing the ordinance with too much discretion in determining whether a violation exists. Many courts fear this will lead to arbitrary prosecutions.

In Township of Plymouth, the Court noted that the reasonable person standard is a hallmark of the legal system and thus “the reasonable person standard serves to provide fair notice of the type of conduct prohibited, as well as preventing abuses in application of the ordinance.” This holding solidified that courts were accepting of the reasonable person standard to define the level of noise that was prohibited in a community. Even prior to the Township of Plymouth case, another Court of Appeals panel reviewed an ordinance adopted by the City of Lansing. City of Lansing v Hartsuff, 213 Mich App 338, 345-347; 539 NW2d 781 (1995). That Court read the reasonable person standard into the ordinance, which meant it was enforceable and survived a constitutional challenge for vagueness.

Noise Ordinance Must Have Standard that Can Be Applied Without “Guessing”

Based on these decisions and other precedent, townships appropriately relied on the reasonable person standard to regulate noise. The benefit of this standard is that it can be difficult to prescribe the exact level of noise created by any specific activity that endangers the public health, safety and general welfare. The reasonable person standard, as accepted and understood by the courts, allow townships’ flexibility in their noise regulations.

In March of this year, however, the Court of Appeals published a decision finding a noise regulation used by the City of Grand Rapids unenforceable as “vague.” The ordinance does not specifically rely on a reasonable person standard to determine unlawful noise, but the Court’s analysis hints at the fact that the reasonable person standard may no longer be sufficient. Grand Rapids v Gasper, Michigan Court of Appeals (2016), the city’s noise ordinance prohibited, in part, a person or premises to “destroy the peace and tranquility of the surrounding neighborhood.”

The Court found that this language provided no metric or standard in the ordinance to determine the level of lawful noise. According to the Court, it required a person to “guess” at what constituted a violation because there was “simply no standard for determining what ‘destroys’ the peace and tranquility of a neighborhood” and the ordinance failed to contain “explicit standards” for what constituted a violation. The Court also ignored previous case law because those ordinances used the word “disrupt” as opposed to “destroy.”

The ironic part about the Court of Appeals’ decision in the City of Grand Rapids case is the distinction between “destroy” and “disturb” and the Court’s vague analysis that “destroy” is somehow more difficult to apply than “disturb.” In comparing the two words as defined in a dictionary, destroy means “to cause something to end or no longer exist; to damage so badly it cannot be repaired” and disturb means “to interrupt or bother; to worry or upset.” In reality, one would conclude it is easier to understand what may be a noise so excessive it damages something so badly it cannot be repaired as opposed to only bothering or upsetting a person.

The Court went one step further in its opinion to note that “the application of a reasonable person standard [in the ordinance] would not save the ordinance from vagueness, but we express no opinion on its use in other noise ordinance cases involving different statutory language.” Although the Court did not need to even reach this issue to decide the appeal, this language by the Court calls to question the use of the reasonable person standard as sufficient to provide the “explicit standards” that the Court of Appeals is looking for in noise ordinances.

Townships Are Still Permitted to Regulate Noise

The authority to adopt a noise ordinance or related nuisance ordinance is not limited by the City of Grand Rapids decision. Also, the 1999 published decision in Plymouth Township does approve of the reasonable person standard and was not overruled by the City of Grand Rapids decision. The City of Grand Rapids decision, if limited to its holding, provides only that use of the phrase “destroy the peace and tranquility of the surrounding neighborhood” does not provide “explicit standards” sufficient to satisfy the constitution.

The lack of clarity in the Court’s decision poses some risk as to what “explicit standards” the Court of Appeals now requires for a noise ordinance to be constitutional. There are, however, several principles that remain valid even after review of this decision:

• Townships can regulate noise (and use related ordinances for nuisances, blight, etc.)
• Townships are best served by using “explicit standards,” such as decibel levels for defining noise that is unlawful.
• Township ordinances relying on a reasonable person standard are not per se unconstitutional as the Michigan Court of Appeals’ decision in Township of Plymouth has not been overturned.
• Township’s relying on the use of “destroy” as a measure of prohibited conduct should consider amending the ordinance to provide for more “explicit standards.”

Conclusion

Many townships currently use noise regulations that are based on the reasonable person standard or other general language to describe prohibited levels of noise. Although the Court of Appeals’ City of Grand Rapids decision does not prohibit the use of the reasonable person standard, the Court’s analysis sends the message that townships should at least review their noise ordinances to determine whether they have sufficient “explicit standards” to identify prohibited noise, and attempt to tailor those regulations with as much precision as possible. What is “explicit standards”? The Court of Appeals’ recent decision leaves this unanswered. For instance, regulating based on decibels levels would be an explicit standard. It also important to realize that these same standards apply to any ordinance, such as a public nuisance ordinance or blight ordinance. Townships may also consider reviewing these police power ordinances to ensure that the standards are explicit as to the conduct that is prohibited.
— Christopher Patterson

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Fahey Schultz Burzych Rhodes PLC, Your Township Attorneys, is a Michigan law firm specializing in the representation of Michigan townships. Our lawyers have more than 150 years of experience in township law, and have represented more than 150 townships across the state of Michigan. This publication is intended for our clients and friends. This communication highlights specific areas of law, and is not legal advice. The reader should consult an attorney to determine how the information applies to any specific situation.