The Henderson County
Board of Commissioners met for a special called meeting at in the Commissioners' Conference Room
of the HendersonCountyOfficeBuilding.
Those present were:Chairman Bill Moyer, Vice-Chairman Charlie Messer, Commissioner Chuck
McGrady, Commissioner Mark Williams,
County Manager Steve Wyatt, County
Attorney Russell Burrell, and Clerk to the Board Elizabeth W. Corn.
Also present were: Communications Officer Pam Brice, Deputy Clerk
to the Board Terry Wilson, staff attorney for the Sheriff’s Department Alan
Absent were:Commissioner Larry
Young, and Assistant County Manager Selena Coffey
CALL TO ORDER/WELCOME
Chairman Moyer called
the meeting to order and welcomed all in attendance, stating that the purpose
of the meeting was a public hearing with respect to the Noise Ordinance Amendments.
OVERVIEW OF NOISE ORDINANCE AMENDMENTS
CountyAttorney Russ Burrell stated
that the Board had received a draft of the new Chapter 125A and the current
Chapter 125 for comparison.The primary
difference between the two is how a violation is accessed.Ultimately under the current ordinance the
primary way of accessing when there has been a violation is by use of a
decimeter.The problem with that is the
collection of evidence.The easy part of
the use of a decimeter is the evidence in court.The officer who is properly trained in the
use of a decimeter has to be onsite and be within the parameters of the
ordinance (at least 4 feet off the ground and at least on the property
line).The new Chapter 125A Ordinance
changes essentially the focus from some kind of machine driven ordinance to
whether or not the noise is unreasonably loud.This is a jury standard and the kind of thing that the collection of
evidence is actually pretty easy.The
collection of evidence is the witnesses that hear it.The proof problems in court are going to be a
little more difficult because you will have to persuade a jury beyond a
reasonable doubt that that noise was too loud, it was unreasonable for the
community.The new draft ordinance meets
the constitutional standards pretty well.It’s not going to be the easiest ordinance in the world to try cases
under but that’s the necessity of dealing with the kind of cases that you are
going to be dealing with when the proof is requiring witnesses to be in court
one or more times.There are two
proposed changes to the Amended Noise Ordinance.
the following underlined language to Sec. 125-3 (B) (7):
The operation of any automobile, motorcycle, or other vehicle, or gas remote
control model car orother vehicle, in such a manner as to create
loud grating, grinding, rattling, screeching or tires, or other unreasonably
loud or disturbing noise.
the present ordinance [Sec. 125-7(B)] ADD a paragraph (B) to Sec 125-4 of the
any exceptions stated in this chapter would limit obligations limit liability
or eliminate either an obligation or liability, the person who would benefit
from the application of the exception shall have the burden of proving that the
exception applies and that the terms of the exception have been met.
the Board were to except this change it would put the burden on the person
claiming the exception to the ordinance to show proof.This is fairly common in criminal statues
that have exceptions to specified behaviors.
Leonard suggested the following additional changes:
125-2 (B), first sentence, place a comma (,) after the word “others.”(The following acts, among others, are
125-2 (B) (8), add the words “which create loud and disturbing noses.” (The
repaid, rebuilding or testing of any motor vehicle, particularly during the
hours between 11:00 p.m. and 7:00 a.m. which creates unreasonably loud and
(B) (6), STRIKE the words “unnecessary and/or” in lines 5 and 6.That word has proven to be constitutionally
troubling.(“…..or the sounding of such
a device for an unreasonable period of time.)
five (5) characteristics of effective noise ordinances are:
have to fit the location where they are enforced.They have to be constitutional.They must be enforceable.They can be enforced by Sheriff or District
Attorney.Judges must be willing to
uphold them in court.
present ordinance is unenforceable; therefore no noise ordinance exists in HendersonCounty. Individuals who are greatly
bothered by loud noise caused by their neighbors, have grounds and will
continue to have grounds to bring a private legal action against a noise maker
seeking an injunction and maybe money damages if the use of their property has been
substantially or unreasonably interfered with by a nuisance.Citizens look to the county or local
government for relief.Regardless of
what we think, you shouldn’t take any action on any proposed noise ordinance
until and unless you have input and assurances from the District Attorney.Assurances that he buys into what we are
saying and that he considers the proposal to be constitutional, and that he
will go to the court and defend the constitutionality of the ordinance and that
he considers the ordinance to be enforceable and will make it a priority.
Moyer stated that it was his understanding that the process in which the Board
had been working for many months involved the District Attorney’s office and we
should know if we were going to have these cases enforced.
Burrell stated that this draft originally came in front of the Board in late
May.After that time several of the
assistant district attorneys and folks from the legal department had been
together looking at this and other ordinances and they were role play
enforcing.They very much like the
current noise ordinance when it comes to court as long as they have good
evidence of a calibrated decimal meter which they do not often have.It is hard to prove that the decimal meter
was in proper operating condition.
Moyer requested that the CountyAttorney get something in
writing from the District Attorney’s Office.He also felt due to the additional changes and additional information
they have received, and Commissioner Young’s absence, it would inappropriate to
take action at this meeting.
Commissioner Messer made the motion for
the Board to go into public hearing.All
voted in favor and the motion carried.
Michael Jacobs felt
that the ordinance was lengthy and it took a lawyer to understand it.He stated that Easley, South Carolina had solved the noise
problem.It was one sentence; if
you can hear over 30 feet away, it’s too loud.He proposed that if you can hear it over
50 feet away, it’s too loud.The
first time you give a warning.The
second violation and additional violations should impose a $50.00
Neal Reed stated
that there were other issues beyond the barking dog issue.He felt that the exceptions to the
ordinance made sense.The exceptions
however needed to be defined.He
proposed that amplified noises should not be accepted.The language on camp activity needs to
be addressed and see that adults are not accepted under the definition of
Brent Fender lives
where and RC Track has been run since 2004 by Clay Harris at least three
weekends per month.The noise is not
tolerable.He has spoken with the
owner of the property and Mr. Harris about this problem and Mr. Harris
only requested money to help him clean his track up.
Jan Scott also
lives in the area of the RC Track.It is jeopardizing the health and welfare of her and neighbors from
the noise, dust and dirt.The track
runs approximately 12 hours per day with loud speakers.For almost three years the hobby shop
and its patrons have abused the noise ordinance.The competitions begin as early as 7:30
a.m. and continue to just before dark.Please ban the RC Cars as part of the ordinance in residential
David Lawter lives
in Etowah and the person behind him has 5 acres in which he has turned
into a dirt bike track.The noise
Ken Cobb was a
member of the noise ordinance task force that wrote the current
ordinance.RC Cars was not included
and was an oversight.There was a
lot of effort put into the DB based ordinance.He felt that the concrete numbers were
needed and the Sheriff’s Department needed to use the tools they
have.He also felt that the
officers were not going to the edge of the property line as defined in the
was concerned with the dirt track and the loud noise the community was
Bob Webb was in
attendance to support several patients of his who have to endure the
encroachment of the dirt track in Etowah.The owner of the track had been addressed as politely and
respectfully as possible with no avail.Dr. Webb’s patients are dealing with worsening health problems due
to the noise of the RC Track.
William R. Gould
lives in Timberlane in Etowah and has a problem with barking dogs and
wants an ordinance written with teeth.
Phyllis Capps lives
in Clairmont Subdivision and wants something done about the barking
dogs.The dogs are invading her
property and her time.She wanted
an ordinance written that would back up the people and give them a chance
to enjoy their homes. (Commissioner McGrady explained that Mrs. Capps
lives in the town of Flat Rock municipality
and the HendersonCounty ordinance
would not have application in the municipalities unless the municipalities
decide to adopt the ordinance themselves).
owns four dogs and lives in the Laurel Park community.Her next door neighbor’s dog is a
nuisance.She feels that the dogs
are only a problem because the owners do not pay the dogs enough
attention.Anytime she goes
outside the dog will bark when it sees her.She feels that a fine should be assessed
each time someone comes out to respond to a call.(Commissioner McGrady explained that
Laurel Park is a municipality also and would have to adopt the ordinance
in order for it to have application in Laurel Park).
Walter Guffy –
passed and did not speak.
Steve Praytor lives
on North Mills River Road
and he also has a problem with the RC Track. As soon as it is daylight and
until it is dark the noise is so disrupting to their lives.
lives in Sweetwater Hills and has dog problems.The neighbor has two large hounds that
bark continuously.He hoped the new
ordinance has something in regards to barking dogs.
property borders the dirt bike property.His wife has had a condition for twenty years in which she lives
with headaches 24/7.Quietness was
a priority when they purchased their property.Mr. Stutzman and his wife must leave the
house whenever the bikers come to ride because she can’t stand the noise
level even inside.
Scott Mullett lives
behind Mr. Stutzman and deals with the same dirt bike problem.He has small children who cannot sleep
when the dirt bikes are in operation.
Doug Coggins is a
native and doesn’t like to hear barking dogs and feels that the hunting
dogs should not be exempted from the ordinance.Loud mufflers and amplifiers did not
used to be allowed.The ordinance
needs to be written with less complication.
Buford Adcock lives
off of Jackson Loop Road
and has a barking dog problem and his neighbor has no regard for other
neighbors.He also has problems
with a neighbor who runs a generator day and night to power his mobile
Arnie House lives
in Hunters Glen and his neighbors dogs bark continually.The Sheriff’s Department cannot do
anything with the current ordinance.
Joann Turner was
concerned with the barking dog problem and felt that the decimal system
should be used so that the noise could be measured.
John Capps lives in
Clairmont and deals with the neighbors dogs barking continuously.He has called the Sheriff’s Department
and when they came the deputy informed him if the dog was on his property
and was a nuisance he had the right to kill it.(The Commissioners could not give legal
advice but reminded Mr. Capps that he was in municipality of Flat
Kara Webb thinks
that the current ordinance is fine and just needs to be enforced.
Commissioner Williams made the motion
that the Board go out of public hearing.All voted in favor and the motion carried.
Moyer stated that the Board had received a lot of additional information and
issues to think about.The Board needed
to hear from the District Attorney’s office in a very specific way with respect
to the issues raised.Obviously there is
more work to be done.
Manager Steve Wyatt requested
putting the noise ordinance on the agenda for an update as to where the Board
is in the process.
Messer feels there is a need to amend the noise ordinance.
Moyer stated that the issue with the municipalities is whether they will or
will not adopt the ordinance.Information will be shared with the municipalities.
Williams felt that enforcement was the key.Whatever the County puts in place needs to deal with RC tracks.
McGrady felt the ordinance should cover RC tracks and dirt bikes.His concern regarding the draft ordinance was
that he did not want to create an ordinance that allows neighbors to get
inordinately picky about a dog.
Commissioner Messer made the motion for the Board to adjourn
at 8:30 p.m.All voted in favor and the
Teresa L. Wilson, Deputy
Clerk to the Board
William L. Moyer, Chairman