Mixed Use Party: Noise at November Polls?

On the University of Michigan campus last Sunday, Aug. 25, a group of students organized as the Mixed Use Party convened their regular monthly meeting.

Zoning scheme proposed by Mixed Use Party overlaid on a speaker icon. (“Art” by The Chronicle.)

The meeting was held in Angell Hall, and first on the agenda was discussion of a possible revision to the city’s noise ordinance. The ordinance revision – which was subsequently adopted into the party platform at the Aug. 25 meeting – would address the question of who is assigned responsibility for a violation.

Under the current city code, if the person responsible for the noise can’t be determined, a police officer has the discretion to deem the renter of the property (or also the property owner, or the occupant) to be responsible. Mixed Use Party members are concerned that the current code could create a scenario where the occupant of a property could be subjected to higher tiers of the allowable fines, based on noise ordinance violations of previous occupants.

Under the Mixed Use Party proposed ordinance revision, if the person who planned the noise-related activity can’t be determined, then it’s the occupants of the space where the activity is taking place who are responsible. And if that can’t be determined, then the responsibility would default to the property owner.

The basic kind of issue – appropriate assignment of responsibility for an infraction – was addressed three years ago by the Ann Arbor city council, but for a different ordinance. The city’s code on allowable storage of solid waste was amended by the council in 2010 – to restrict somewhat the ability of landlords to require tenants to pay fines associated with improperly stored trash.

Candidates affiliated with the Mixed Use Party will be contesting Ann Arbor city council races as independents in three of the city’s five wards. Sam DeVarti will be running in the Ward 3 race against incumbent Democrat Stephen Kunselman. DeVarti was the only one of the three Mixed Use Party candidates at the Aug. 25 meeting, which was sparsely attended.

DeVarti is a student at Eastern Michigan University, while the other two candidates are UM students. Jacyln Vresics is contesting the Ward 1 race along with incumbent three-term Democrat Sabra Briere and independent Jeff Hayner. In Ward 2, Mixed Use Party affiliate Conrad Brown will be on the November ballot with incumbent independent Jane Lumm and Kirk Westphal, who won an uncontested Democratic primary.

In Ward 4, Democratic primary winner Jack Eaton is unopposed in November. Ward 5 incumbent Democrat Mike Anglin faces no competition on the ballot, but resident Thomas Partridge is a declared Ward 5 write-in candidate.

Other aspects of the Mixed Use Party platform are somewhat broader than the proposed changes to the noise ordinance. For example, the platform includes a reconceptualization of the city’s zoning scheme, reducing the number of non-public land zones to three broad categories: heavy industrial, mixed use and restricted mixed use.

A highlight of the Mixed Use Party tentative infrastructure plan – which has not yet been formally adopted as an element of the party’s platform – might include selling Ann Arbor’s public parking system and using the proceeds to fund road repair, among other infrastructure. The infrastructure plan was discussed at the Aug. 25 meeting, but possible action was left for a future meeting.

More detail on noise and trash below the fold.

Recent Noise Ordinance Revision

The Ann Arbor city council revised the city’s noise ordinance about nine months ago, at its Dec. 12, 2012 meeting. That revision was undertaken without much debate or controversy. The change was prompted by complaints from neighbors during the construction period of The Landmark at 601 S. Forest, an apartment building located in Ward 3. Noise was just one of several aspects of The Landmark’s construction activity that came under sharp criticism at the council’s Oct. 1, 2012 meeting from nearby resident Eleanor Linn.

The ordinance revision was shepherded through the process by Ward 3 councilmember Christopher Taylor.

The revision approved by the council last year added language to the text of the ordinance to make clear that the ordinance can be enforced against those who are supervising construction work – people who are causing the work to be done that is generating the noise, not just the workers who are operating the equipment causing the noise:

The persons to whom this subsection applies shall include, but not be limited to, construction managers, foremen, property owners, developers, contractors, and subcontractors who direct, order, require, authorize, or commission another person to perform these activities in a manner that violates this section. If the person is an entity, this subsection shall also apply to the officers, directors, partners, limited liability company members, or other individuals constituting such entity.

The revision also explicitly added legal holidays to the time during which excessive noise levels caused by construction activity are prohibited:

Construction, repair, remodeling, demolition, drilling or excavation work at any time on Sunday or a legal holiday and between 8:00 p.m. and 7:00 a.m. Monday-Saturday …” Legal holidays are defined in the ordinance as “New Year’s Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, Veterans’ Day, Christmas Day.

Current Assignment of Responsibility

The council’s 2012 revision to the noise ordinance addressed the assignment of responsibility only in the context of construction-related noise. The more general question of how liability is determined and the associated punishments were not changed as part of the 2012 revision. [.pdf of city of Ann Arbor noise ordinance]

So the city’s noise ordinance provides for some discretion, in the event that it is not possible to determine who is responsible for the noise-inducing activity [emphasis added]:

9:369. – Liability of owner, lessee, or occupant. If the person responsible for an activity which violates this article cannot be determined, the owner, lessee or occupant of the property on which the activity is located shall be deemed responsible for the violation. A person found responsible under this section shall be guilty of a civil infraction punishable by a fine of $50.00 to $500.00 plus costs. For a second offense within a 2-year period, the fine shall be $100.00 to $500.00 plus costs. For third and subsequent offenses within a 2-year period, the fine shall be $200.00 to $500.00 plus costs.

If it is possible to determine the person responsible for the noise, then the city’s ordinance lays out the following penalties:

9:370. – Penalty. Except as provided in section 9:369, an activity which violates this article shall be punishable by a fine of $50.00 to $500.00 plus costs. For a second offense within a 2-year period, the fine shall be $100.00 to $500.00 plus costs. For third and subsequent offenses within a 2-year period, the penalty shall be $200.00 to $500.00 plus costs and/or, in the discretion of the court, up to 240 hours community service.

Mixed Use Party members at their Aug. 25 meeting felt that the ordinance could be interpreted in a way that would allow for a scenario where an “occupant of a dwelling involved in a noise violation could be punished with up to 240 hours of community service because of past violations at that dwelling.”

However, that interpretation would require the escalation of the penalty imposed under 9:370 to depend in part on infractions penalized under 9:369.

Highlights of MUP Proposal

Revisions to the noise ordinance proposed by the Mixed Use Party would, among other things, distinguish between public and private property, as well as attempt to clarify the assignment of responsibility for the infraction. The proposed ordinance revision identifies first the planner of an event as the responsible person, and if that can’t be determined, the occupants, and as a last resort the property owner. A lessee is not a potential responsible person, if the planner can’t be determined.

Responsibility for violations on private property
(1) If one or more people perform an activity on private property that violates this article, the person who planned the activity is responsible for the violation. If the planner cannot be determined, and the activity is in a dwelling or other space occupied by one or more people, each occupant of the space is responsible for the violation. If the occupants of the dwelling or space cannot be determined, or the activity is in a space without occupants, the property owner is responsible for the violation.
…

The proposal also includes time-based escalating fines if the noise-related activity isn’t stopped.

The Mixed Use Party proposal would also change the threshold decibel levels that result in an infraction. Allowable noise levels due to construction noise are proposed to be reduced from 105 to 95 decibels – with a slightly shortened time frame for that noise level. The period for the increased noise due to construction activity would begin at 8 a.m. instead of 7 a.m.

For non-construction noise, the Mixed Use Party proposal would somewhat increase the allowable decibel levels. In the existing city code, the base level of allowable noise is different for different times of day – 7 a.m. -10 p.m. and 10 p.m. to 7 a.m. For residential properties, the existing code specifies maximums of 61 and 55 decibels, respectively. For the corresponding type of properties (restricted mixed use) under the Mixed Use Party proposal, the allowable level during the day would be increased to 70 decibels.

The rationale for the increase in allowable levels is based on empirical work that Mixed Use Party members have done with a noise meter, which concluded that existing ambient noise levels already approach the levels specified in the existing code. [.pdf of MUP proposed revision to noise ordinance]

Noise Compared to Solid Waste

By way of additional background, the Mixed Use Party’s interest in avoiding unfair assignment of responsibility for noise infractions – possibly based on the behavior of a previous tenant – is reminiscent of city council action dating back three years ago.

At its July 19, 2010 meeting, the council revised the section of the solid waste code that’s used to enforce cleanup after large parties. [.pdf of city of Ann Arbor code on illegal solid waste storage] From The Chronicle’s coverage of that meeting:

The substantive change to the ordinance was laid out by Christopher Taylor (Ward 3). It was motivated by situations where there is a rental property, and it is tenants who have strewn the waste. Many landlords require tenants to pay fines associated with tickets issued under the ordinance. The fines are tiered based on the number of offenses at a property. However, a current tenant may not be guilty of every prior offense resulting in an increased fine amount. That inherent unfairness, said Taylor, can result in a “judicial downcharging” with lessor fines being imposed than they would otherwise.

The amendment to the code approved by the council prevents landlords from requiring tenants to pay any fine amounts due to offenses committed prior to their own tenancy at the property [emphasis added]:

2:12. ­Illegal storage of solid waste.
…
(e) No property owner, landlord, or agent who incurs fines and costs for a violation of this section shall require tenant(s) or occupant(s) to pay fines and costs for or reimburse the owner, landlord, or agent for payment of fines and costs, except in keeping with the following requirements:
(1) For a first violation within the period of time that the tenant(s) or occupant(s) reside(s) on the property, the owner, landlord, or agent shall not require the tenant(s) or occupant(s) to pay more than $200.
(2) For a second violation within the period of time that the tenant(s) or occupant(s) reside(s) on the property, the owner, landlord, or agent shall not require the tenant(s) or occupant(s) to pay more than $400.
(3) For each additional or subsequent offense within the period of time that the tenant(s) or occupant(s) reside(s) on the property, the owner, landlord, or agent shall not require the tenant(s) or occupant(s) to pay more than $1,000.

Mixed Use Party: Next Meeting

Meetings of the Mixed Use Party take place on the last Sunday of the month, typically in an Angell Hall classroom, after a meetup at the posting wall located on the Diag side of the building.

According to Mixed Use Party co-chair Will Leaf, a meeting to kick off the school year will likely be scheduled for the week beginning Sept. 2 with the exact time and location yet to be determined.

The Chronicle could not survive without regular voluntary subscriptions to support our coverage of public bodies like the Ann Arbor city council. Click this link for details: Subscribe to The Chronicle. And if you’re already supporting us, please encourage your friends, neighbors and colleagues to help support The Chronicle, too!