Noise-related PA Court Cases

A simple list of Pennsylvania court cases addressing noise, noise pollution, nuisance, and similar topics related to noise pollution abatement in Pennsylvania.

Cost v. Dickson City (3rd.Cir., June 3, 2021)

Cost v. Dickson City (3rd.Cir., June 3, 2021)

NON-PRECEDENTIAL: Challenge under §1983 claims when loud fight and suspected domestic situation supported exigent circumstances and supported forced entry by police without a warrant. Court below noted: “because the facts were ‘sufficient to warrant a person of reasonable caution to conclude that [Plaintiff] . . . engag[ed] in fighting in such a manner that recklessly caused public annoyance or alarm,’ in violation of [18] Pa. Cons. Stat. § 5503(c).” Opinion cites United States v. Rohrig, 98 F.3d 1506, 1522 (6th Cir. 1996) (explaining that “the governmental interest in immediately abating . . . loud and disruptive noise in a residential neighborhood is sufficiently compelling to justify warrantless intrusions under some circumstances,” including a domestic disturbance “for an extended period of time without serving any apparent purpose”).


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Commonwealth v. Faust 1138 MDA 2020 (Pa.Super., June 15, 2021)

Commonwealth v. Faust 1138 MDA 2020 (Pa.Super., June 15, 2021)

NON-PRECEDENTIAL: DUI case summarizing disorderly conduct as applied to noise. Police must establish “a level of noise inconsistent with neighborhood standards” to support probable cause or disorderly conduct. [Slip 4-5] The court concluded: “[h]ere, because there was no actus reus [because squealing tires in the vicinity was not inconsistent with the neighborhood], no reasonable persons in the officer’s position could possibly conclude that the crime of disorderly conduct was afoot.” [Slip, 6]


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Barris v. Stroud Township (May 28, 2021)

Barris v. Stroud Township,  671 CD 2020 (May 28, 2021).

WARNING POSSIBLE APPEAL: Barris launched a collateral, constitutional attack on a township ordinance limiting firearms discharges to certain zoning districts. The Court held the firearms discharge ordinance facially unconstitutional as an allegedly overbroad impairment of Second Amendment rights (failing intermediate scrutiny). While the Court did not establish a new right to practice firearms, allegedly, the Court notes that municipalities may limit firearms discharges via zoning or other ordinances more narrowly crafted to  address firearms discharges. NOTE: The case did not address, 35 P.S. § 4501 and 35 P.S. § 4502  Noise Pollution Exemption for Firing Ranges, which allows municipalities to establish noise limits on firing ranges as long as done so prior to construction of the firing range.


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Commonwealth v. Weeden May 26, 2021

Commonwealth v. Weeden 2021 PA Super 108 (May 26, 2021).

Weeden implicates noise pollution law.

First, Weeden demonstrates that police may be trained to distinguish types of sound and that such distinctions are admissible. [Slip 4](“The operators and police have also been trained to differentiate between the sound of gunshots and other similarly loud sounds, such as a firecracker pattern.”) Thus, Weeden supports police, for example, distinguishing between illegally modified exhaust systems and legal exhaust systems.

Second, Weeden concludes that reports from automated devices such as gunshot detection systems are admissible and specifically not hearsay. [Slip 10](“… data automatically generated by a computer does not constitute a statement asserted by a person and, therefore,cannot qualify as hearsay.”) Weeden specifically implicated a noise-related automated system (to purportedly detect gunshots). [Slip 10] Thus, a noise-violators may not challenge the admissibility of noise detection system reports.

Third, Weeden concludes that gunshot detection reports do not violate either the federal or Commonwealth Confrontation Clauses. Furthermore, general noise-violation reports should not implicate Confrontation Clause issues because such reports are not related to criminal prosecution. See [Slip 12](“[S]tatements are testimonial when the circumstances objectively indicate that there is no such ongoing emergency and that the primary purpose of the document is to establish or prove past events potentially relevant to later criminal prosecution.”)(emphasis added).

 


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Adams Outdoor Advertising v. ZHB of Stroudsburg 392 C.D. 2020 (Pa.Cwlth., May 17, 2021)

Adams Outdoor Advertising v. ZHB of Stroudsburg 392 C.D. 2020 (Pa.Cwlth., May 17, 2021)

Case challenging total ban on annoying and inappropriate LED billboards. Cited regarding noise for footnote 9 affirming that a municipality does not have a burden to “present[] evidence to show that the exclusionary regulation bears a substantial relationship to the public health, safety, morality, or welfare” during a putative substantive validity challenge  when the use has “particularly objectionable quality.” [Slip 13 fn 9]. FN9 cites Beaver Gasoline Co. v. Zoning Hearing Bd. of Borough of Osborne, 285 A.2d 501, 504-05 (Pa. 1971) for “[c]ommon knowledge indicates that certain types of business activities, by reason of the particularly objectionable quality of those activities, are undesirable land uses and total prohibition would appear prima facieto be designed to protect those public interests which zoning statutes permit municipalities to protect. . . . [These include] activit[ies] generally known to give off noxious odors, disturb the tranquility of a large area by making loud noises, have the obvious potential of poisoning the air or the water of the area, or similarly have clearly deleterious effects upon the general public[.]” [Slip 13 fn9, ellipses and edits in original).

NOTE: Court also cites Township of Exeter v. Zoning Hearing Board of Exeter Township, 962 A.2d 653 (Pa. 2009) for the rule for substantive validity challenges to the zoning ordinance which in turn heavily cite In re Realen Valley Forge Greenes Associates, 838 A.2d 718, 727 (Pa. 2003)(claiming zoning ordinances may limit uses).


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Commonwealth v. McConnell (Super., Dec. 30, 2020)

Commonwealth v. McConnell 2020 PA Super 300 (Super., Dec. 30, 2020).

Disorderly conduct, neighbor dispute

While technically not addressing noise, the case may apply to retaliatory noise situations and spurious claims of First Amendment activity to excuse noise violations. McConnell reminds that even First Amendment activity must be exercised in a reasonable manner and the analysis focuses on the disturbance from the noise, not the content of the noise. [Slip 14-16]. Notably, disorderly conduct may arise when a party creates a “physically offensive condition” which includes “…direct assaults on the physical senses of members of the public.” [Slip 6]. “[A] defendant can create a physically offensive condition if she invades the
physical privacy of another in an extreme manner….” [Slip 7].


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Marshall v. East Bradford Township Board of Supervisors (PaCwlth, Feb 17 2021)

Marshall v. East Bradford Township Board of Supervisors (Pa.Cwlth, Feb 17 2021)

Appellants sought declaration that a 3000 sq ft barn in an R-2 zoning district was owner-occupied and thus could be used to calculate the number of attendees at events at the former farm property, now a conditional use B&B and event space. Using tortured logic, the Commonwealth Court declared the barn “occupied” because the owners simply stored some items in the barn and denied the local municipality’s interpretation that a property could have only one primary dwelling. The opinion notes that Appellants [also] allegedly “did not comply with the noise standards established by the Zoning Ordinance.” The Trial Court did not address the alleged failure to address noise and other standards; and thus the Commonwealth Court did not address that issue. See sharply diverging DISSENT.


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HHI Trucking & Supply, Inc. v. Borough Council of Borough of Oakmont, 990 A.2d 152, 163 (Pa.Cmwlth.,2010)

HHI Trucking & Supply, Inc. v. Borough Council of Borough of Oakmont, 990 A.2d 152, 163 (Pa.Cmwlth.,2010)

ZONING: Conditional use conditions for cement plant near residential homes. Case requires that zoning ordinance define the terms “objectionable” or “acceptable” sound levels with adequate specificity to allow for measurement or analysis.  “The terms ‘objectionable’ and ‘acceptable’ are not defined, and the Zoning Ordinance does not specify which ANSI standard should be used to measure the sound pressure level. In the absence of such specificity, Borough Council’s required study is impossible of execution and, as such, unreasonable.” [163]


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Commonwealth v. Scott, 878 A.2d 874, 878-79, 2005 PA Super 224, ¶ ¶ 11,13 (Pa.Super., 2005)

Commonwealth v. Scott, 878 A.2d 874, 878-79, 2005 PA Super 224, ¶ ¶ 11,13 (Pa.Super.,2005).

IMPORTANT CASE: Establishes plainly-audible at distance standard as constitutionally sound in Pennsylvania. [Slip ¶¶10-13] “ The distance standard provides an explicit guideline to those charged with enforcing the [noise] ordinance. If a law enforcement officer can hear sounds … at the proscribed distance, the ordinance has been violated.” [Slip ¶10] See ¶ 11 for citations to other states with plainly-audible standards.

Scott also quashes claims of “over-breadth” with plainly-audible noise ordinances related to First Amendment activity. “It is well-established, however, that a governmental entity may impose, even in public forums, reasonable time, place and manner restrictions on protected speech…. To be reasonable, the restrictions on protected speech must be content neutral, narrowly tailored to serve a significant governmental interest, and leave open ample alternative channels for communication of the information.” [Slip ¶ 14] See also Ward v. Rock Against Racism, 491 U.S. 781, 790 (1989)(governments may limit First Amendment activity even in public fora on time, place, and manner).

 


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Com. v. Ebaugh, 783 A.2d 846 (Pa.Cmwlth. 2001)

NUISANCE: In nuisance ordinance, ” the phrase ‘annoy or disturb a reasonable person of normal sensitivities’ in the Township’s ordinance is an objective standard that looks to the impact of noise upon a reasonable person under the particular circumstances of the incident. In our view, a person of ordinary intelligence would understand what conduct violates this provision and, accordingly, the ordinance is constitutional.” [850]

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Pacurariu v. Com. 744 A.2d 389 (Pa.Cmwlth.,2000)

Pacurariu v. Com., 744 A.2d 389, 393 (Pa.Cmwlth.,2000).

FIREARMS/FIRING RANGES: Even Commonwealth actors, such as Fish & Game, must comply with noise regulations in effect at the time that a gun firing range is built. [See also 35 P.S. § 4501 and 35 P.S. § 4502  Noise Pollution Exemption for Firing Ranges].

 


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Overstreet v. Zoning Hearing Bd. of Schuylkill Tp., 618 A.2d 1108, 1114, 152 Pa.Cmwlth. 90 (Pa.Cmwlth.,1992)

Overstreet v. Zoning Hearing Bd. of Schuylkill Tp., 618 A.2d 1108, 1114, 152 Pa.Cmwlth. 90 (Pa.Cmwlth.,1992).

Appellants challenged zoning ordinance that limited mobile home parks to an industrial zoning district. Appellants claimed higher noise levels in industrial districts made them per se incompatible with mobile home housing. Court held that noise levels were not determinative and did not alone support claims that the district was incompatible with mobile home housing—noting the district also allowed single family housing, motels, overnight accommodations, etc.

 


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City of Philadelphia v. Cohen, 479 A.2d 32, 84 Pa.Cmwlth. 200 (1984)

City of Philadelphia v. Cohen, 479 A.2d 32, 84 Pa.Cmwlth. 200 (Pa.Cmwlth.1984)

IMPORTANT CASE: Noise ordinances not over-breadth or vague especially when applied to regulated businesses. “The criteria employed in evaluating regulatory language for vagueness, embrace ‘flexibility and reasonable breadth’ rather than ‘meticulous specificity’ or ‘mathematical certainty.’ [205]  “[t]he Code defines ‘noise’ as ‘the presence of a sound or sounds of such intensity, duration, frequency or character which annoy, disturb, or cause or to tend to cause adverse psychological and physiological effects on persons.'” [205] Such language does not implicate vagueness especially when applied to businesses because vagueness standards are relaxed in regulated businesses. [206] Also, “the phrase ‘beyond the property boundary’ is not invalid for indefiniteness because it fails to specify the distance from the property boundary from which sound measurements are made.” [207] Petitioner also challenged +3dB standard which Court held made the ordinance less susceptible to challenge, not more. [206-207].

DECIBEL NOTE: petitioner business challenged the ordinance, which in this application  limited amplified sound to less than +3dB above ambient sound, by claiming that sound levels might already be so law as to not be objectionable according to the business even at +3dB. This claim fundamentally misunderstands decibel scales. [See 203, noting that +3dB is about 50% “louder” than ambient sound levels, not a little bit “louder” as petitioner implies]. Petitioner apparently never explains why petitioner enjoys some unilateral “right” to increase sound levels by 50% and that is not infringing on the rights of others.


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