July 28, 2005

By Robert Mihalek

The Village must rewrite portions of its noise ordinance after a Xenia Municipal Court judge threw out the existing law for being vague.

In a ruling issued March 31, Judge Susan L. Goldie found Antioch College not guilty of violating the Village noise ordinance and voided the Village’s noise law.

Antioch had been cited 14 times by the Yellow Springs Police Department during a two-week period in September 2004 for violating the noise ordinance. The citations were issued after one of Antioch’s neighbors, Jerry Papania, 214 East Whiteman Street, complained about the noise emanating from an air-conditioning chiller on Antioch’s campus. The police issued the citations at night, when the Village ordinance says that noise in excess of 45 decibels is too loud. The daytime noise limit is 65 decibels.

Antioch installed the chiller in May of that year. After Papania raised concerns about the noise that the unit causes, Antioch wrapped the chiller in insulating material and built an eight-foot high fence around the unit to contain the noise, Judge Goldie reported in her ruling.

The case was heard in Xenia Municipal Court earlier this year.

In her ruling, Judge Goldie wrote that the evidence produced in court of the noise measurements taken by the Police Department was not reliable and, therefore, inadmissible in the case. She said the department did not have the noise meter calibrated, a situation she described as “inadequate.” She called the department’s method of training officers to use the machine, “vaguely described.”

Judge Goldie also criticized the noise ordinance itself, writing that the wording of the ordinance and the Police Department’s interpretation of the law were “troubling to this Court.” She said that the ordinance “does not sufficiently specify at what height the decibel measurements can be taken, leaving open the possibility of measurement at absurd heights such as in the case” against Antioch.

The Police Department raised a noise meter approximately 18 feet in the air to determine the noise level coming from Antioch’s air-conditioning unit, Judge Goldie wrote.

At its meeting July 18, Village Council reviewed the court case and discussed a new ordinance prepared by the Village solicitor’s office that, Village Manager Rob Hillard said, attempts to address the deficiencies Judge Goldie found in the existing law. Council members asked Hillard to research noise level standards that other communities use.

Council president Tony Arnett said that “at this point in time our ordinance is unenforceable,” so Council “must clearly address that.”

Police Chief John Grote told Council that based on the court case the Police Department needs to devise guidelines for the use of the noise meter; regularly calibrate the instrument; train officers to use the device; and produce procedures to measure sound.

The proposed ordinance, for instance, states that police officers taking noise readings should position a sound meter three to five feet above the ground. The voided ordinance said that the meter could be more than four feet high.

During last week’s Council meeting, Papania noted that the Village noise ordinance “has served the community well for over 30 years” but was thrown out in court by what he called “technicalities.” He said that Antioch “has and continues to operate an industrial refrigeration unit” that is “in violation with the spirit” of the noise law.

Rick Jurasek, the interim president at Antioch College, called the proposed ordinance “more evenhanded, more reliable, more consistent and more enforceable” than the ordinance that Judge Goldie threw out.

In other Council business:

• Without voting, Council endorsed a proposal from the Village Cable Advisory Panel to purchase new equipment for channel 13, the local cable access station. The cable panel’s plan includes the purchase of two cameras, a bulletin board unit and computer system and software. The panel reported that the equipment, software and training would cost $22,500, $7,500 less than the amount the Village budgeted for channel 13 this year for capital equipment.

Jean Payne, the chairwomen of the cable panel, and Paul Abendroth, a panel member, told Council that the capital plan would improve the quality of broadcasts on channel 13; allow for more variety of programming; give the station the ability to archive programming on DVD; and improve the channel’s bulletin board.

• Council voted unanimously to approve the first reading of an ordinance creating the “furtherance of justice fund,” which, the ordinance states, the Police Department would use in investigations and “other efforts to lessen the effect of crime” in Yellow Springs. Council will hold a second reading and public hearing on the ordinance at its next meeting, on Aug. 1.

• Council unanimously approved the second reading of an ordinance protecting the Village water system from contamination from backflows through water service connections. The ordinance gives the Village authority to require water consumers to install backflow-preventing devises. The Village will also conduct annual inspections of customers who have such devices.

• Council unanimously agreed to approve the first reading of an ordinance amending the Village’s personnel classifications to create two new positions: foreman of streets, sewer and parks and foreman of electric and water distribution. Dave Conley and Kelley Fox were promoted to these respective positions. The promotions and new positions were recommended by Hillard. Council will hold a second reading and public hearing on the ordinance at its next meeting, on Aug. 1.