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Under Michigan law, municipalities are empowered to enact regulations for the public health, safety, and welfare. The scope of this regulatory authority is broad, and many municipalities implement this power to impose controls on noise. However, complications may arise in determining how to regulate noise. Sound can be particularly difficult to measure accurately, and sensitivity to certain sounds can vary widely between individuals.  How then, can townships fairly and comprehensively regulate noise? Read this E-Letter to find out.

Noise Generally

The intent of noise regulations is generally to prohibit the generation of noises that are harmful to the public. But how does a municipality identify what noises are “harmful” and what noises are not? Given the wide range of sounds that might be encountered in a municipality, this task might not be as easy as it seems.

There are two predominant approaches to regulating noise. First, noise can be regulated through its perceived impact on individuals. Second, noise can be regulated through imposing maximum limits on noise generation through the imposition of maximum decibel standards. Both approaches are discussed below.

Regulating Based on Perceived Impact—the Reasonable Person Standard

A common approach to regulating noise—and essentially the only regulatory option before the advent of hand-held sound measuring equipment—is to impose regulations based on the impact on the listener. However, such regulations have historically drawn constitutional Due Process challenges for vagueness under the Fourteenth Amendment.

There are three relevant ways a noise ordinance can be found unconstitutionally vague:

• It does not provide fair notice of what conduct is prohibited, meaning a person of average intelligence would have to guess as to whether they are violating the ordinance;
• It encourages arbitrary and discriminatory enforcement, which can be proved if the enforcing officer has unlimited discretion in determining whether a violation exists; or
• It is overly broad and impinges on First Amendment freedoms. See People v Howell, 396 Mich 16 (1976).

In 2016, the Michigan Court of Appeals examined a City of Grand Rapids ordinance that prohibited noises which “destroy the peace and tranquility of the surrounding neighborhood.” People v Gasper, 314 Mich App 528 (2016). The Gasper Court found this language unconstitutionally vague, as it failed to provide fair notice of prohibited conduct as there was no standard for determining what level of noise would “destroy the peace and tranquility” of a neighborhood. Further, the Gasper Court noted that the lack of explicit standards would vest “virtually complete discretion” to enforcing officers, another hallmark of an unconstitutionally vague ordinance. As such, the provision of Grand Rapids’ noise ordinance at issue was struck down.

So how can municipalities employ constitutional standards based on perceived impact in light of all the potential challenges that can be brought to bear against a municipal noise ordinance?

This answer is that all of these concerns can be addressed through the now ubiquitous “reasonable person standard,” which examines whether a hypothetical reasonable person would be annoyed or disturbed by the noise at issue.

This standard was first recognized by the Court of Appeals in 1999 in Plymouth Township v Hancock, where the Court upheld a township ordinance prohibiting noises that “unreasonably annoy or disturb the quiet, comfort and repose of persons in the vicinity.” Plymouth Township v Hancock, 236 Mich App 197 (1999). The Hancock Court found this language to be defensible despite challenges that it was unconstitutionally vague, ambiguous, and overbroad.

The Hancock Court explained that this is an objective standard and is a “hallmark” of legal jurisprudence, which allows a “person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly,” and “serves to prevent any ad hoc and subjective application by police officers, judges, juries, or others empowered to enforce.” Since this case, the “reasonable person standard” has been employed in countless municipal noise ordinances.

Unlike decibel level restrictions, the reasonable person standard requires no scientific measurement of sound, but imposes a different kind of objective standard, which is one of reasonableness: would a reasonable person be bothered by the noise in question? This is a question that is typically answered through an examination of the surrounding circumstances and the credibility of witness testimony, which requires enforcing agencies to assess the reasonableness of complaints before pursuing enforcement action. This standard is flexible, practical, and relatively easy to enforce so long as there are witnesses who can credibly testify to the unreasonable nature of noise at issue, which is why so many communities across the state use it.

To implement a reasonable person standard, our recommendation is to use language that is substantially similar or even identical to what was upheld in Hancock: Noises that “unreasonably annoy or disturb the quiet, comfort and repose of persons in the vicinity.” These “magic words” have been upheld by numerous courts, so incorporating this exact standard will help safeguard against attempts to distinguish your ordinance from the one upheld in Hancock.

Successful prosecution under a reasonable person standard relies heavily on witness testimony, which is accompanied by benefits and drawbacks. For obvious violations with numerous complainants, this can help establish an extremely strong case in favor of enforcement, but it also requires complaining residents to put some proverbial skin in the game. If there is an alleged violation but no one is willing to come forward, or the only complainants willing to testify do not seem reasonable, a municipality may opt against enforcement altogether, which can help from being “stuck” with a losing case.

Reliance on witness testimony is also a weakness of the “reasonable person” standard. Residents can have valid reasons to want to avoid testifying, and violations are difficult to prove without testimony. Further, there may be instances where community consensus does not recognize the social value of certain noise-producing activities (for instance, a neighborhood might be completely intolerant of the noise from snowblowers, but this noise is a necessary component of winter life), which generally requires the inclusion of exceptions for certain noises. Lastly, it gives up a level of regulatory control and precision that might otherwise be possible via decibel level regulation.

To avoid some of these weaknesses, a “reasonable person standard” can implement the following:

• Specific examples of prohibited noise. For example: “The use of a loudspeaker, stereo, or radio, played at such a volume so as unreasonably annoy or disturb the quiet, comfort and repose of persons in the vicinity.”
• Specific examples of exempted noise. For example: “Noise generated by snow clear equipment used for clearing snow, so long as such equipment is kept in good repair.”
• Time of day restrictions. For example: “Noise generated by lawn equipment that unreasonably annoy or disturb the quiet, comfort and repose of persons in the vicinity, except for lawn equipment operated between the hours of 8:00 am and 10:00pm.”
• Coupling with a “plainly audible” standard, which examines whether sound can be detected by an average listener at a certain location to establish a presumed violation. For example: “The use of a loudspeaker, stereo, or radio, played at such a volume so as to unreasonably annoy or disturb the quiet, comfort and repose of persons in the vicinity. A violation of this section will be presumed if the operation of loudspeaker, stereo, or radio is plainly audible inside an occupied dwelling.”

Decibel Level Regulations

A common misconception is that it is relatively easy to impose and enforce a decibel limit restriction in a local noise ordinance. While decibel level limits are objective regulations, it can be very challenging to create and enforce defensible decibel level standards. If your vision of decibel level enforcement involves a simple regulation saying: “No noise can exceed 75 dB,” and a decibel measuring app on a cell phone, you are not headed in the right direction.

The measurement of sound is an involved and scientific process. Sound is measured in decibels, which is a logarithmic scale. There are varying methods of measuring sound, such as Lmax (measuring sound at an instant period of time), Leq (similar to averaging sound over time), and L50 (median noise). Sound measurements can also be taken at different frequency weights, such as dB(A) or dB(C). This information should generally be included in decibel level regulations to inform the reader how sound will be measured.

Sound measurements are also greatly impacted by a variety of environmental factors, such as ambient noise (traffic, insects, wind, etc.), temperature, humidity, air pressure, and the location of the sound level meter. All of the factors above can wildly vary sound level readings.

Further, a properly calibrated sound level meter must be used to accurately measure sound, and the individual taking the measurements must be properly trained on how to operate the device. Good sound level meters cost thousands of dollars and require some degree of formal training as well as regular calibration, and even a sophisticated sound level meter is only as good as the official who uses it. To that end, effective enforcement in court requires an official who understands how their equipment works and how to use it. Note that you will almost always need an official with a sound level meter on site while an unlawful noise is occurring to effectively prosecute it, which may present staffing complications for noises that occur outside of regular business hours or only intermittently.

Beyond the practical difficulties of measuring sound by decibel, there is also the issue of how to select applicable limits in the first place, and the threshold question here can often be one of reasonableness—specifically, what decibel levels are “reasonable” for a particular community or area? After all, an overarching requirement for virtually any municipal regulation is that it be reasonable. A sound study conducted by a qualified consultant to evaluate ambient sound levels and recommend proposed limits can be a helpful tool here. With these complicated factors in mind, regulating by decibel limit provides a degree of exactness and control that is not present in the more-common “reasonable person” standard.

While decibel level restrictions sometimes appear in general noise ordinances, they are also often seen in the zoning context as performance standards for particular commercial or industrial uses where a land use is anticipated to generate some level of noise. Decibel level limits are frequently encountered in industrial or commercial settings, particularly where a land use is anticipated to cause constant noise (think data centers, manufacturing facilities, wind turbines, sawmills, etc.). In this context, imposing decibel limits at the property line of the property at issue can provide clear guidelines that can be monitored by the property owner to ensure continued compliance.

If your municipality is interested in exploring decibel level limits, you should consider the following:

• Are the maximum limits reasonable and supported by data? Will the limits protect the public without being overly restrictive for important land uses? Will daytime and nighttime limits be imposed?
• What frequency is being measured? dB(A)? dB(C)? This may depend on the anticipated nature of the noise being generated.
• What duration of measurement is going to be applied? Lmax, Leq, L50? This decision may depend in part on the duration of the sound you intend to regulate. Lmax can be best for brief, instantaneous sound, while Leq may be more appropriate for continuous noise.
• Where is sound going to be measured? At the property line of the property generating the noise? At adjacent properties where the noise is audible?
• How will measurements be taken? Is there adequate funding for equipment and training? Will an official be available for late-night noise complaints?
• Are there exceptions from decibel level limits to ensure you are not regulating more than you intend to? Some activities, like legitimate farm operations, may be statutorily exempt from regulation. Others, like emergency vehicles, may need to exceed your decibel limits for obvious reasons.

If you are interested in regulating by decibel level but are unsure about the answers to these questions, an expert in sound measurement and regulation may be able to assist in drafting defensible regulations.

Conclusion

How you choose to regulate noise depends on your community and your regulatory objectives.

The “reasonable person standard” is typically best suited for general ordinances that apply to an entire municipality. This standard is the easiest to enforce and is both flexible and straightforward. It is constitutionally defensible and widely accepted as the standard for regulating noise. Unlike decibel levels, there is no requirement that an official be present to observe violative noise—violations can be established simply through witness testimony. It is often all many municipalities will ever need to regulate sound, and it can be tailored through thoughtfully crafted examples and exceptions to provide residents with clear expectations as to what is permitted and what is prohibited.

Decibel level limits are more complicated to enact and to enforce but provide a more scientific and precise means of regulation that is not dependent on resident testimony. The biggest weakness of this approach is that it requires a properly trained and equipped official to be on-site to measure noise to establish a violation. As a result, regulating in this manner may not be a good fit for smaller municipalities with limited enforcement budgets, but it can be an effective tool for municipalities with the resources to enforce this restriction. Community-wide decibel level limits have some utility in more urban settings, but for more rural communities, this restriction might only make sense as a condition of approving a special land use for limited commercial or industrial uses.

Importantly, these regulations are not mutually exclusive and are regularly employed simultaneously. Sophisticated noise ordinances can establish “reasonable person” standards for some noises while imposing decibel limit specific regulations in other contexts. If you take this approach, just be mindful of which standard you want to control if both can be implicated, as having conflicting standards is problematic.

If your municipality does not have noise regulations on the books and you are interested in exploring these regulations, or if you have noise regulations that do not use the standards discussed herein, we recommend contacting your attorney to determine what approach is the best fit for your community.

By: Jacob Witte

This publication is intended for educational purposes only. 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.