Noise amendment adopted in Bethany

Though a legal challenge could be looming, Bethany Beach Town Council members at their May 15 meeting voted unanimously to adopt an amendment to the town’s existing noise ordinance that is designed to remove an unused finite measure of violation in favor of the “reasonable person” standard the town has been using all along.

The ordinance amendment was opposed by at least one set of citizens – the Walsh family, who have complained that their home next to Captain Jack’s Pirate Mini-Golf has been subject to noise in violation of the town’s ordinance and even hired a noise expert to measure the levels of noise from the business to confirm they were in violation at the unused 25-foot distance standard that had been part of the town’s noise ordinance until it was struck by the May 15 council vote.

The Walshes, represented at the May 15 meeting by attorney Kevin Baird, told council members in a statement made prior to the vote that he believed the amendment would violate federal law, deny the Walshes a right to due process and would be in conflict with state law as well, since, he argued, it would specifically remove the family’s ability to be protected by the town’s noise ordinance.

The synopsis of the amendment to the ordinance noted that the distance standard was being removed “in favor of establishing a more general, but readily comprehensible, standard of conduct which recognizes that the intent of the ordinance is to protect the inhabitants of the Town generally from loud and unnecessary noise rather than to establish a standard that may be invoked by a uniquely-affected person or small group of persons.”

The Walshes, through Baird, argued that they were just such a group of “uniquely affected” people and that the amendment appeared to have been targeted at them after they had previously appealed to the council for help in resolving the dispute with Captain Jack’s owner Carole Schultze and had ask for council’s take on whether the family could bring a legal case for relief under the town’s noise ordinance if the town would not pursue the issue itself.

“Who determines when noise is a violation to a reasonable person?” Baird asked. “Who is a reasonable person? How can the police enforce this fairly?”

Baird said a recent case in Virginia Beach, Va., had dealt with just such an issue and found a similar statute to be unconstitutional – “too vague” and inviting “arbitrary enforcement,” as ruled upon by the Virginia State Supreme Court – even though many municipalities in that state, and elsewhere in the U.S., use a similar standard and have for years.

Further, Baird said, it appeared that the ordinance’s handling of “uniquely affected” persons would essentially mean the near neighbors of a noise-maker would have less protection in the town than those far away.

Baird also argued that Delaware’s statewide noise ordinance offers a definition of noise, unlike the revised Bethany ordinance, and specifies that it is something that “erodes the value of property” – which the Walsh family says the sounds from Capt. Jack’s do to their property and which the revised Bethany ordinance specifically lists as not being a standard to be used to define noise.

He also made the Walshes’ case on a more human level, noting the family’s ownership and residence on the property since the 1960s.

“With the new summer season approaching, now it appears that the town wants to change the ordinance and take away the Walshes’ protection,” he said. “The town has turned its back on the Walshes after all these years.”

Town solicitor defends revised ordinance

Though Baird’s arguments appeared to be setting the stage for a possible legal challenge to the town’s revised ordinance or a civil case against Schultze, Town Solicitor Terence Jaywork advised the council on May 15 that he felt the legal arguments made didn’t hold up to scrutiny.

Noting that Baird had failed to provide him, in advance, with documentation of the April 17 decision in the Virginia State Supreme Court, Jaywork pointed out that the Virginia state constitution and that of Delaware are likely to differ in many areas, so the finding that a vague standard is unconstitutional in Virginia doesn’t necessarily mean it would be unconstitutional in Delaware.

“Different states vary,” he said. “Some require verification with a decibel meter. Some use the ‘reasonable person’ standard.”

Jaywork rejected Baird’s argument that a definition of noise in state law that sets enforcement responsibilities to the state’s Department of Natural Resources and Environmental Control (DNREC) should be a factor in the council’s decision, since, he said, he was unaware of DNREC ever enforcing noise limits across the state or having budget appropriations specifically to do so.

Moreover, Jaywork said, he believed Delaware law left the Walshes without standing to make a legal case against the town’s revised noise ordinance.

“If anyone could challenge it, it would be Capt. Jack’s,” he said, noting such a case would traditionally come only after a citation for violation of the ordinance was made and the accused noise-maker opted to argue the issue in court.

Jaywork said he also found fault with the argument that the ordinance would violate the “equal protection” standard, since it is designed to protect the entire town as a whole, rather than individual citizens, and focuses on problems affecting public areas rather than private property. He said violations targeted by the ordinance would be those affecting a whole neighborhood, instead of just one or two neighbors.

Further, Jaywork said he felt the standard the town had been using left room for interpretation of the context of noise, unlike the finite standard that was being eliminated.

“Half of the trucks out here would be in violation,” he said, gesturing to nearby Route 1, with its heavy traffic of tricked-out cars and trucks attending that weekend’s car show in Ocean City, Md. He said the standard would be much lower in a purely residential area than near a highway or a commercial area, such as the one adjacent to the Walshes’ property.

“Delaware law requires that the standard be clear enough for a ‘reasonable person’ to understand,” Jaywork emphasized. “The ‘reasonable man’ standard is the core of American jurisprudence,” he added.

Opinions shift in favor of change to ordinance

Responding to a question from Council Member Margaret Young about noise limitations that had once been set to be imposed specifically on Capt. Jack’s, Council Member Bob Parsons – the chairman of the town’s Board of Adjustments – recalled that the town had not pursued adoption of the conditional use in that case before the board after finding fault with how it was advertised.

Instead, he noted, the council had moved to make miniature golf a use-by-right in the town’s commercial area, striking from the requirements for Capt. Jack’s a rule that prohibited noise-making devices, such as the pirate noises that now emanate from the course’s pirate skeleton.

Vice-Mayor Carol Olmstead, who had introduced the ordinance amendment, emphasized that it was not targeted at the Walsh family, despite any coincidence of timing, and said the removal of the 25-foot distance as part of the standard was intended to benefit the town’s residents, including the Walshes, since noise violations both closer and farther away than that distance can be cited with the “reasonable person” standard in place.

“They didn’t like the 25-foot standard,” Jaywork said of the council’s position on the issue. “You can burp and hear that at 25-feet,” he noted. “They felt 25 feet is too strict,” he added, pointing out that a citation for a noise violation on that burp was “more likely to shock the conscience of the court” than the lack of a citation for the situation affecting the Walshes.

Council Member Jack Gordon said May 15 that he had changed his mind on the issue, after previously having felt the amended standard would be difficult to enforce. He said he had spoken to the town manager and police officers and now felt the ordinance change was the proper way to go.

The council voted unanimously to adopt it. Baird did not say on May 15 whether the Walshes would pursue the matter with legal action against the town or Schultze.

When Bethany’s planning commissioners met for their monthly meeting the following morning, the issue was still on their minds, as Commissioner Don Doyle again recommended the commission look into possibly developing a “light-commercial” zoning district that would contain commercial areas adjacent to residential areas, in which the town might, for instance, permit only indoor business types as a way to keep noise levels down for residential neighbors.

Council Member and Commission Chairman Lew Killmer noted that the timing of the ordinance amendment was not so much targeted at the Walshes as it was typical, since, he said, it is cases such as the Walshes’ complaints that often reveal the flaws in existing legislation.

The issue of a possible light-commercial zone could be taken up by the commission or the town council at a future date.