Traverse City Record-Eagle

East Bay

December 17, 2008

Outcry dooms East Bay noise law

Violation remains a civil infraction, not a crime

By BRIAN McGILLIVARY

TRAVERSE CITY -- Calling the dog, playing a piano, or watching television after 11 p.m. might have earned East Bay Township residents a trip to jail, under a proposed noise ordinance shouted down by some residents.

The law would have made it a crime to yell or take part in other boisterous behavior between 11 p.m. and 7 a.m., a misdemeanor punishable by up to 90 days in jail. Playing a musical instrument, listening to the radio, or watching television carried a similar penalty if the sound was "clearly audible" beyond the property line.

The proposed law failed by a tie vote at the township board's Dec. 7 meeting, so for now a noise violation in East Bay remains a civil infraction punishable by a fine.

But an ordinance that criminalizes certain noises could have opened the door to warrantless searches of vehicles or houses by police, critics contend.

Some residents spoke against the noise law loudly and clearly.

"It was like enacting martial law," said resident Bernard Yantz. "It was incredible to learn this was going on in East Bay Township."

Another resident complained he could be arrested for calling his dog at 11:15 p.m., an overreaction, said township Supervisor Glen Lile.

"That's definitely not the intent, to have someone calling their dog and have them arrested," Lile said. "We haven't lost all common sense."

Yantz said the ordinance gave too much leeway to police to make arrests for alleged noise violations.

Attorneys for the American Civil Liberties Union agreed. They called the proposed ordinance unconstitutionally vague and said it would have given police "unbridled discretion" to make arrests.

"What it does is make an entire range of otherwise lawful behavior illegal," said Steve Morse, a board member of the ACLU's Northwestern Michigan branch. "There's all kinds of innocent conduct that would become problematic under the ordinance, like laughing loudly at a joke or getting involved in a spirited political debate."

Such an ordinance could put citizens at risk of police abuse, Morse said. The ACLU hears from local Hispanics that police already use tactics such as making traffic stops on drivers who have rosary beads or other items hanging from a rearview mirror in order to run background checks and search vehicles, he said.

Township attorney Jim Young, who drafted the proposed ordinance, said it relies on the "sound judgement" and "discretion" of police. He said officers could not legally use the ordinance to search cars and homes by arresting someone on a noise violation.

County Prosecutor Alan Schneider wouldn't comment directly on the ordinance, but said police officers generally have the right to search a driver's car if they are making an arrest.

Schneider crafted East Bay's original ordinance that made noise infractions a civil offense. But township officials decided to tinker with the law, though Young's original draft kept it a civil infraction.

That changed in November when Grand Traverse County sheriff's deputy Mike Shea, East Bay's community police officer, asked for more teeth to force compliance.

Shea earlier this year told township board members he'd never written a ticket for noise under the existing ordinance because warnings had always worked.

Constitutional questions aside, Yantz protested the ordinance for what it did not address.

The proposed law did not discuss barking dogs, loud motor noises, or industrial equipment, and specifically exempted trash collection and snow plowing from the can't-do list.

Yantz and his family live near U.S. 31, and he said last winter a nearby business used a large front-end loader for snow removal that "rattles the windows."

"The industrial backup siren or beeper sounds like an atomic alarm clock starting and stopping over-and-over again," Yantz said in a letter to the board. "There is no sleeping while this small parking lot is cleared by this industrial equipment."

Residents' concerns swayed three township board members away from criminalizing the noise law and it failed due to a tie vote. Lile, Treasurer Tracey Bartlett, and Trustee Dale McAllister voted in favor, while Clerk Sue Courtade and Trustees Bryan Marrow and Matthew Courtade opposed it.

"I think at times we try to micromanage our community and I had a problem with this ordinance," Sue Courtade said.

Lile plans to create a committee to redraft the ordinance and try again to get it passed again, though he said he couldn't recall what prompted the proposed ordinance or why it was needed.

A review of township records shows the process began almost a year ago when a neighbor complained about noise made by one of Mt. Holiday's snow-making machines. The board referred the issue to Young's office to see if Mt. Holiday violated the existing ordinance.

Young criticized Schneider's ordinance as awkward and subjective. He said noise ordinances "create more problems for local government than they solve," but if the township wanted a noise ordinance his firm would rewrite it.

As for the Mt. Holiday noise complaint, officials at the ski hill were asked to reposition the offending snow gun.

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