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NOTICE
Memorandum decisions of this court do not create legal
precedent. See Alaska Appellate Rule 214(d) and
Paragraph 7 of the Guidelines for Publication of Court
of Appeals Decisions (Court of Appeals Order No. 3).
Accordingly, this memorandum decision may not be cited
as binding precedent for any proposition of law.
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| ROBERT STEVENS JR., | ) |
| ) Court of Appeals Nos. A-9134/9391 | |
| Appellant, | ) Trial Court Nos. 3PA-04-5255 MO |
| ) 3PA- 05-0001 MO | |
| v. | ) |
| ) O P I N I O N | |
| MATANUSKA-SUSITNA BOROUGH, | ) |
| ) | |
| Appellee. | ) |
| ) No. 2051 - June 23, 2006 | |
Appeal from the
District Court, Third Judicial District,
Palmer, William H. Fuld, Judge, and David L.
Zwink, Magistrate.
Appearances: Chadwick P. McGrady, Law
Office of Chadwick McGrady, P.C., Palmer,
for Appellant. Nicholas Spiropoulos,
Assistant Borough Attorney, and Teresa S.
Williams, Borough Attorney, Palmer, for
Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
COATS, Chief Judge.
MANNHEIMER, Judge, concurring.
This case involves a noise ordinance enacted by the
Matanuska-Susitna Borough in May 2004 after homeowners complained
that their sleep was being disturbed by amplified music coming
from the Fish Heads Bar and Grill on the Palmer-Wasilla Highway.
Robert Stevens Jr. owns that business, which abuts a residential
subdivision.
Shortly after the ordinance was enacted, Stevens was
cited twice for violating it. He was convicted of those
violations in October 2004. Within a week of those convictions,
he was cited five more times. A trial on those additional
charges was held in August 2005, and Stevens was convicted of two
more violations. Stevens has appealed his convictions in both
cases. We have consolidated his appeals for purposes of this
decision.
In general terms, the noise ordinance at issue forbids
amplified noise or vibration during certain hours of the day and
night that can be plainly heard or felt on neighboring property
such that it disturbs a person of normal sensibilities. Stevens
has asked us to invalidate the ordinance. He argues that the
language of the ordinance is so vague that it fails to give
constitutionally adequate notice of what conduct is prohibited
and so overbroad that it chills free speech. He also argues that
the Matanuska-Susitna Borough has no authority to regulate noise.
For the reasons explained below, we conclude that the
noise ordinance survives Stevenss constitutional challenges. We
also conclude that Stevens has not met his burden to show that
the Borough exceeded its statutory authority in enacting the
ordinance. We therefore affirm Stevenss convictions.
Facts and proceedings
Stevens was cited for violating the Boroughs noise
ordinance, MSB 8.52, on Saturday May 22, 2004, at about 1:22 a.m.
and on Sunday May 23, 2004, at about 2:30 a.m. based on evidence
that his neighbors were disturbed in their homes by the sound of
amplified bass music emanating from the Fish Heads Bar and Grill.
On October 8, 2004, a bench trial was held in district
court before Superior Court Judge William H. Fuld. At that
trial, the Borough presented testimony by Brian Archer, a private
investigator it had hired to do sound surveillance of the Fish
Heads bar. Archer testified that on May 22, from 1:14 a.m. to
2:26 a.m., he stood about 150 yards from the Fish Heads bar, in
the adjacent residential subdivision. He said that from that
location the whomp, whomp sound of amplified bass music was
fairly consistent throughout that hour. Archer said he returned
to the subdivision on May 23 from 2:15 a.m. to 3:15 a.m. and
heard the same bass sound, with only occasional two-minute gaps
in the sound. He said he was absolutely positive the sound came
from the Fish Heads bar. However, on cross-examination, he
conceded that his tape recorder had not picked up the bass sound,
only the rustling of trees and other neighborhood noises.
Two homeowners in the subdivision testified. Tara
Gibbs said that while in her home on May 22-23 from 11:00 p.m.
until 1:30 a.m., when she fell asleep, she heard a continuous
thumping noise from the Fish Heads bar. She said that similar
noises had affected her sleep for the past year. Dewey Taylor,
another neighbor, testified that he heard a thumping noise from
the bar on May 23 beginning at about 2:00 a.m., which lasted for
at least an hour and prevented him from sleeping.
Stevens testified in his defense. He said he had
offered to buy Gibbss and Taylors homes for their appraised
value. He also testified that thump-thump noises were often
generated by car stereos in his parking lot and when he heard
those noises he asked the drivers to turn their music down. He
said that prior to the weekend of May 22-23 he had taken steps to
reduce the sound emanating from his bar, including installing
devices designed to monitor and control audio output, reducing
and moving the bass speakers, installing more drop panels in the
roof, and adding insulation and heavy steel doors.
Judge Fuld ruled based on this evidence that Stevens
had violated the noise ordinance on both dates. Stevens then
filed a motion for reconsideration, attacking the validity of the
ordinance. He argued that the ordinance was unconstitutionally
vague; that is, that its terms were so imprecise that it did not
give adequate notice of what conduct was prohibited and
encouraged arbitrary enforcement by Borough officials. He also
challenged the ordinance for overbreadth, arguing that the threat
of criminal sanctions would deter amplified campaign
announcements and other protected speech.
Judge Fuld granted the motion for reconsideration.
After considering the parties supplemental briefing, he upheld
the ordinance, finding that it was a reasonable effort to control
obnoxious noise.
In October 2004, Stevens was again cited (five times)
for violating the ordinance. Before trial on these violations,
Stevens moved to dismiss the citations based on the same legal
claims raised in his previous case: that the ordinance was
unconstitutionally vague and overbroad. He also argued that the
Borough had acted outside its authority in enacting the
ordinance. District Court Magistrate David L. Zwink denied the
motions, ruling that the ordinance was constitutional and that
the Borough had authority to regulate noise under its land use
power. Trial was held over the course of four days in August
2005. Magistrate Zwink convicted Stevens of two of the five
charges.
Stevens appeals his convictions.
Did the Borough have authority to enact the noise
ordinance?
The Matanuska-Susitna Borough is a second-class
borough. That means it is a general law municipality that is, it
only has those powers conferred by statute.1 (A home rule
borough or city, by contrast, may exercise all legislative powers
not prohibited by law or charter.2) Stevens argues that the
noise ordinance falls outside the Boroughs enumerated powers.
All municipalities, including second-class boroughs,
have general powers to, among other things, establish salaries
for municipal employees, levy taxes, enforce ordinances, and
acquire and dispose of property.3 A second-class borough has
certain additional powers conferred by statute, some of which are
mandatory and some of which are discretionary.4
In arguing that the Borough acted outside its
authority in enacting the noise ordinance, Stevens points to AS
29.35.210, which lists the powers second-class boroughs have
discretion to exercise. Stevens argues, and the Borough
concedes, that nothing in this statute gives the Borough
discretion to pass a noise ordinance and that no election among
voters in the Borough was held to confer that discretion as
authorized in AS 29.35.210(c) and (d).
Instead, the Borough argues that the noise ordinance
is a proper exercise of its mandatory land use power.5 More
specifically, the Borough argues that AS 29.40.040(a) in
particular the portion italicized below gave it authority to
enact the noise ordinance at issue in this case:
Land use regulation. (a) In accordance
with a comprehensive plan adopted under AS
29.40.030 and in order to implement the
plan, the assembly by ordinance shall adopt
or amend provisions governing the use and
occupancy of land that may include, but are
not limited to,
(1) zoning regulations restricting the
use of land and improvements by geographic
districts;
(2) land use permit requirements
designed to encourage or discourage
specified uses and construction of specified
structures, or to minimize unfavorable
effects of uses and the construction of
structures;
(3) measures to further the goals and
objectives of the comprehensive plan.[6]
This statute appears to authorize the Borough to
control unwanted noise in at least three ways: by zoning
districts; by land use permit requirements; or by other measures
designed to further the goals and objectives of the comprehensive
plan.
In his briefing before this court, Stevens does not
respond to the Boroughs argument that the noise ordinance is a
proper exercise of its areawide land use power. Nor does
Stevens address, or even acknowledge, Magistrate Zwinks ruling in
the Boroughs favor on this issue. Because Stevenss briefing is
inadequate, we do not resolve the question of whether the Borough
acted within its authority in issuing the noise ordinance.7
Is the noise ordinance unconstitutionally overbroad?
Stevens next argues that the ordinance impermissibly
chills free speech in violation of the first amendment because it
limits amplified noise during too many hours of the day and
night.
The Boroughs noise ordinance prohibits the following:
(A) Noise created by the operation,
playing or permitting the operation or
playing of any radio, stereo, television,
phonograph, loudspeaker, speaker system,
drum, musical instruments, sound amplifier,
or similar sound-amplifying device which
produces, reproduces, or amplifies sound in
such a manner as to be plainly audible
outside the real property boundary of the
property on which the operation, playing, or
permitting to play occurs for a duration of
five minutes or more, and during Sunday
through Thursday from noon to 4 p.m. and
from 10 p.m. to noon, and on Friday and
Saturday from noon to 4 p.m. and from 11
p.m. to noon, is a noise disturbance and
public nuisance in violation of this code.
(B) No person shall operate or permit
the operation of any radio, stereo,
television, phonograph, loudspeaker, speaker
system, drum, musical instrument, sound
amplifier or similar sound-amplifying device
that creates vibration which is above the
vibration perception threshold of an
individual at or beyond the real property
boundary of the source of the vibration.
For purposes of this chapter, vibration
perception threshold means the minimum
ground or structure-borne vibrational motion
necessary to cause a normal person to be
aware of the vibration by such direct means
as, but not limited to, sensation by touch
or visual observation of moving objects.
Violation
of this paragraph constitutes a public nuisance.[8]
Plainly audible noise is defined as any noise for
which the information content of that noise is unambiguously
transferred to a listener, such as, but not limited to,
understanding of spoken speech, comprehension of whether a voice
is raised or normal, or comprehension of musical rhythms.9
Noise disturbance is defined as amplified sound which endangers
or injures the safety or health of humans or animals, or annoys
or disturbs a reasonable person of normal sensitivities, or
endangers or injures personal or real property.10 The ordinance
exempts sounds generated during certain types of emergencies and
permitted special events, as well as amplified noises coming from
vehicles moving along public rights-of-way (i.e., car stereos).11
(The noise ordinance could be read to restrict noise
produced by musical instruments that are not amplified.
Subsection A above, defining prohibited acts, lists [n]oise
created by ... any radio, stereo, television, phonograph,
loudspeaker, speaker system, drum, musical instrument, sound
amplifier, or similar sound-amplifying device. When this
sentence is read in isolation, it is not obvious that the
Assembly intended the phrase or similar sound-amplifying device
to modify every item in the list, including drums and musical
instruments. The definitions section of the ordinance, however,
unambiguously defines a noise disturbance to encompass only
amplified sound. Because only amplified sound is at issue in
this case, we need not decide this question.)
In Ward v. Rock Against Racism,12 the United States
Supreme Court outlined three factors that courts must consider in
determining whether a time, place, and manner limitation the
government places on music violates the first amendment. The
first factor is whether the regulation is justified without
reference to the content of the speech.13 The principal inquiry
in determining content neutrality, in speech cases generally and
in time, place, or manner cases in particular, is whether the
government has adopted a regulation of speech because of
disagreement with the message it conveys.14 The second question
is whether the citys regulation is narrowly tailored to serve a
significant governmental interest.15 To satisfy this prong, the
government need not adopt the least restrictive or least
intrusive means of protecting its interest, so long as the means
chosen are not substantially broader than necessary to achieve
the governments interest and the regulation promotes a
substantial government interest that would be achieved less
effectively absent the regulation.16 The third question is
whether the regulation leaves open ample alternative channels of
communication. This factor is easily met by a regulation that
limits the degree of amplification but has no effect on the
quantity or content of expression.17 We have adopted this
approach as a matter of state constitutional law.18
Stevens does not claim that the Boroughs noise ordinance
regulates the content of speech or precludes alternative,
quieter, means of communication. His only claim is that the
ordinance is broader than necessary to achieve the Boroughs
interest in controlling disturbing amplified noise because it
restricts such noise for too many hours of the day and night.
(Stevens was convicted of violating the noise ordinance between
11:00 p.m. and 5:00 a.m. However, the only hours the noise
ordinance restrictions are not in force are from 4:00 p.m. to
10:00 p.m. during the week, and from 4:00 p.m. to 11:00 p.m. on
the weekend.19)
As the Supreme Court declared in Ward, the government
has a substantial interest in protecting citizens from unwelcome
noise, particularly in the privacy of their homes, and it need
not choose the least restrictive means to accomplish that goal.20
Although Stevens asserts that the ordinance is unconstitutionally
restrictive, he offers no basis for finding that the time-of-day
limitations which were incorporated into the ordinance following
testimony at a public hearing reach substantially more conduct
than necessary to achieve the Boroughs interest in protecting the
peace of its residents. Stevens has therefore not established
that the ordinance unduly burdens protected speech.
Is the noise ordinance unconstitutionally vague?
Stevenss next claim is that the ordinance is so vague
that it does not give adequate notice of what conduct is
prohibited and encourages arbitrary enforcement by Borough
officials. He argues that a person seeking to comply with the
ordinance, or to enforce it, can only guess what noise will
annoy or disturb a reasonable person of normal sensitivities or
what vibration will cause a normal person to be aware.21 He
also argues that the ordinance promotes arbitrary enforcement
because it contains no objective criteria for determining what is
a violation, thus granting property owners a standardless sweep
to retaliate against their neighbors.22
Noise ordinances that rely on a purely subjective
standard to determine what volume of noise is annoying or
disturbing have generally not passed constitutional muster.23
For instance, in Easy Way of Lee County, Inc. v. Lee County,24 a
Florida appellate court struck down as unconstitutionally vague a
portion of a noise ordinance that, in effect, prohibited noise
that any individual person within the area of audibility happens
to find personally disturbing.25 Likewise, in Fratiello v.
Mancuso,26 a federal court struck down an ordinance that barred
unnecessary noises or sounds ... which are physically annoying
because the ordinance relied on subjective determinations of what
was unnecessary and annoying.27 And in Lutz v. City of
Indianapolis,28 the court of appeals struck down as vague an
ordinance that prohibited noise that was unusual or unnecessary
or that annoys ... others, observing that the ordinance employed
no reasonableness test for determining what was a violation.29
The Boroughs ordinance does not suffer from this
infirmity; it places specific geographic and time limitations on
amplified noise that annoys or disturbs a reasonable person of
normal sensitivities.30 As we have previously observed, [a]
statute is not vague merely because a fact finder must determine
questions of reasonableness.31 In other jurisdictions, noise
ordinances that incorporate a reasonable person standard,
expressly or implicitly, have generally been upheld. For
example, in City of Madison v. Baumann32 the Wisconsin Supreme
Court rejected a vagueness challenge to an ordinance that forbade
making any noise tending to unreasonably disturb the peace and
quiet of persons in the vicinity.33 The court found that the
word reasonably saved the ordinance from being impermissibly
vague.34 The test for a possible violator, the court explained,
is simply the time honored and time validated reasonable person
test, i.e., what effect will my conduct singing or playing have
upon persons in the vicinity under the circumstances.35
Likewise in State v. Garren,36 a North Carolina court
found that an ordinance prohibiting loud, raucous and disturbing
noise which the ordinance defined as sound that annoys,
disturbs, injures or endangers the comfort, health, peace or
safety of reasonable persons of ordinary sensibilities provided
a sufficiently objective standard to guide conduct.37 Some
courts have gone further and, in rejecting a vagueness challenge,
construed a noise ordinance to contain an implied reasonable
person standard. In City of Beaufort v. Baker,38 the South
Carolina Supreme Court upheld the constitutionality of an
ordinance barring any person from willfully disturbing a
neighborhood or business by making loud and unseemly noises after
construing loud and unseemly to mean unreasonably loud in the
circumstances.39 So construed, the court found the ordinance
clear enough. It noted: The objective reasonable test is used in
many areas of the law as an appropriate determinant of liability
and thus a guide to conduct.40
In line with this authority, we conclude that the
Boroughs ordinance provides adequate notice of what conduct is
prohibited. The ordinance defines as a prohibited noise
disturbance amplified noise that is plainly audible across a real
property boundary for five minutes or more during specified
hours.41 A noise disturbance is further defined as, among other
things, amplified noise that annoys or disturbs a reasonable
person of normal sensitivities.42 In addition, plainly audible
noise is defined as noise for which the information content of
that noise is unambiguously transferred to a listener, such as,
but not limited to, understanding of spoken speech, comprehension
of whether a voice is raised or normal, or comprehension of
musical rhythms.43 Also forbidden as a public nuisance is
physical vibration from amplified sound that is perceptible to a
normal person beyond the real property boundary of the source of
the vibration.44 Taken together, these standards provide
sufficient notice of what conduct is prohibited to satisfy due
process.
We further conclude that Stevens has not shown that
the ordinance is so vague that it will lead to arbitrary
enforcement by Borough officials. Alaska courts will not
invalidate a statute on this ground unless there is evidence of a
history of arbitrary or capricious enforcement or the statute is
so conflicting and confused that arbitrary enforcement is
inevitable.45 The ordinance establishes sufficiently objective
standards to guard against the risk that Stevens conjectures
convictions based on the fabricated testimony of vindictive or
hypersensitive neighbors. Moreover, while Stevens asserts that
he has been singled out and, indeed, the ordinance was
apparently enacted because of the noise problems created by his
business he has pointed to no circumstance in which the Borough
failed to enforce the noise ordinance when faced with similar
complaints.
Did the Borough violate the discovery rules, and did
Judge Fuld err by
refusing to continue the trial to allow for discovery?
Stevens argues that, in his first trial, he was not
provided with the discovery he was entitled to under Criminal
Rule 16(b) and that Judge Fuld should have granted a continuance
to permit him to obtain that discovery.
Stevens was cited for violating the noise ordinance in
May 2004. Trial was held almost five months later, in October
2004. During that period, a default judgment was entered and
vacated. For reasons that are not explained in the record,
Stevens delayed hiring an attorney until the day before trial.
At trial, the attorney said he had tried to view the Boroughs
exhibits that morning but had been unsuccessful. The attorney
asked for a forty-five day continuance to obtain discovery and to
prepare for trial. Judge Fuld initially reserved the decision on
whether to grant a continuance.
Later, when Stevens renewed his request for discovery,
Judge Fuld asked Stevens why he had waited so long to request
discovery. Stevens argued that a letter he wrote to the Borough
on May 24, 2004 was in effect a lay request for discovery and
that the Borough had not complied with that request. Stevenss
attorney read part of the letter to Judge Fuld:
Has this ord[i]nance been codified? Please
clarify what is [meant by] Fish Heads Bar &
Grill is in the core planning area. Is
there MSB real estate other than city
boundary that is not affected by this
ord[i]nance? Your comments Fish Heads has a
vibration perception above the threshold of
a normal person, please send me expert data
to show this fact. What is your procedure
for determin[ing] what is a normal
threshold? I will need this information to
help me comply with this ord[i]nance. Has
this code been enforced anywhere else in the
Borough?
Judge Fuld responded: All right. In any event this
case has had a trial date for a long time and I dont want to hear
any more argument. Were going to take testimony now.
Based on this record, Judge Fuld could reasonably
have concluded that the Borough had committed no discovery
violation. Furthermore, even if the Borough had violated the
discovery rules, Stevenss claim would fail because he failed to
show any prejudice. To justify a continuance, Stevens had to set
forth a plausible way in which his ... defense could be
prejudiced by the governments failure to make timely
disclosure.46 The only discovery Stevens claims he was denied
was audio tapes made by the Boroughs investigator. As the
investigator conceded at trial, those audio tapes did not record
any amplified sound only the rustling of trees and other
innocuous noises. In convicting Stevens, Judge Fuld noted that
the tapes had not recorded any bass sound but concluded that
testimony about the noise by the investigator and nearby
homeowners had nevertheless established Stevenss violations
beyond a reasonable doubt. Stevens did not explain at trial, nor
has he on appeal, how he would have benefitted from getting
copies of these audio tapes before trial. Given these
circumstances, Judge Fuld acted well within his discretion in
denying Stevens a continuance for the purpose of obtaining these
tapes.47
Did Judge Fuld deprive Stevens of his right to present
a defense?
Stevens argues that Judge Fuld deprived him of his
constitutional right to present a defense by cutting short his
cross-examination of the Boroughs witnesses and by not permitting
him to present all his witnesses.
During the Boroughs case, Judge Fuld limited the
examination of each witness to three minutes for each side.
Stevens raised no objection to this restriction. There is
nothing in the record that suggests that Judge Fuld enforced this
limitation against Stevens or that Stevenss questioning was cut
short because of it. Moreover, on appeal, Stevens has not
explained how he was prejudiced.
The record is equally devoid of support for Stevenss
claim that Judge Fuld infringed upon his right to present a
defense by not permitting him to present all his witnesses.
After Stevens testified, Stevenss attorney sought to call only
one other witness, Tom Conway. This discussion followed:
Court: For what effect?
Defense counsel: Basically because I want
to introduce exhibits that show that the
ordinance that was proposed on May 3 was
completely different than the ordinance that
was passed on May 18 which is contrary. . .
Court: Thats legal argument, it goes
nothing to the facts here, you can do that
in a motion.
Defense counsel: Okay.
In his motion for reconsideration, Stevens did not raise any
claim related to this alleged inconsistency between the proposed
and final ordinances.
Because Stevens did not object to Judge Fulds ruling,
he did not preserve his claim that the court erred in precluding
this witness.48 Moreover, even if the court had erred, Stevens
has not alleged, much less shown, that he was prejudiced by that
error.
Was there substantial evidence to support Judge Fulds
verdict?
Stevens argues that there was not substantial evidence
to support his October 2004 convictions because the investigators
tape recorder failed to record the complained-of sound and
because Stevens testified that the noise could have come from
vehicles parked in his lot. In other words, Stevens argues that
if the evidence is viewed in the light most favorable to him, it
is insufficient to support his convictions.
In reviewing an attack on the sufficiency of the
evidence, we are required to view the record in the light most
favorable to upholding the judges verdict.49 Viewed in that
light, there was substantial evidence to support Stevenss
convictions. Stevens was convicted of generating amplified noise
that was plainly audible and disturbing to his neighbors for more
than five minutes during prohibited hours. A private
investigator hired by the Borough testified that he stood in the
residential subdivision adjacent to the Fish Heads bar for one
hour on each of the early mornings at issue and heard the whomp,
whomp sound of amplified bass music fairly consistent throughout
that hour. He testified that he was absolutely positive the sound
came from the Fish Heads bar. This report was corroborated in
part by two residents of the subdivision who testified to hearing
a repeated thumping noise from the Fish Heads bar in the late
night and early morning hours that disturbed their sleep. This
testimony provided sufficient relevant evidence to support a
conclusion by a reasonable mind that there was no reasonable
doubt as to [the defendants] guilt.50
Stevens also claims that there was insufficient
evidence to support his August 2005 convictions. However, his
argument on this issue cites to the transcript of his first trial
in October 2004. His claim is therefore waived for inadequate
briefing.51
Conclusion
Stevenss convictions are AFFIRMED.
MANNHEIMER, Judge, concurring.
I write separately to emphasize that our affirmance of
the judgements in these cases does not mean that we agree with
the Boroughs assertion that the noise ordinance at issue here is
a proper exercise of the Boroughs land use power under
AS 29.40.040(a). The Borough relied on this rationale in the
trial court, and Magistrate Zwink ruled in the Boroughs favor on
this point. But we are upholding the magistrates ruling simply
because Stevens has failed to brief the merits of that ruling.
There are reasons to doubt the Boroughs assertion that
the contested ordinance is justified under its land use power.
AS 29.40.040(a) states that a second-class borough (such as the
Matanuska-Susitna Borough) may regulate land use through (1)
zoning regulations, (2) land use permitting requirements, and (3)
[any other] measures to further the goals and objectives of the
[boroughs] comprehensive plan adopted under AS 29.40.030.
The Borough relies on the second of these clauses, the
permitting clause. That clause of AS 29.40.040(a) declares that
the Borough is empowered to enact:
land use permit requirements designed to
encourage or discourage specified uses [of
land] and construction of specified
structures, or to minimize unfavorable
effects of [land] uses and the construction
of structures[.]
The Borough claims that this statutory
language in particular, the phrases
discourage specified uses [of land] and
minimize unfavorable effects of [land] use
is the authorization for its noise
ordinance.
The problem with the Boroughs
argument is that the noise ordinance at issue
here does not appear to be a permitting
ordinance. The ordinance simply establishes
limits on the noise that can be generated on
any property within the Borough (outside the
city limits of Palmer, Wasilla, and Houston).
It is true that a provision of the ordinance
(8.52.020) allows an exemption from the
normal noise limits for a special event
properly permitted under this code. But
there is apparently no method for Stevens or
any other property owner to apply for or
obtain a permit that would exempt an ongoing
business from the noise limits established by
the ordinance.
Moreover, if the challenged
ordinance is indeed a land use ordinance, the
record leaves some doubt as to whether the
Borough complied with state law when it
enacted the ordinance. Under AS 29.40.
040(a), all of a boroughs land use ordinances
must be adopted in accordance with, or to
implement, a validly enacted comprehensive
land use plan.1 This requirement helps to
guard against prejudice, arbitrary decision-
making, and improper motives by providing
substantive standards to govern the boroughs
individual zoning decisions.2 This safeguard
is particularly important in cases like the
present one where the borough government
responded to public complaints regarding one
particular persons use of his land.
Neither in its trial court
pleadings nor in its briefing to this Court
has the Borough explained how, or if, the
challenged noise ordinance accords with or
implements any provision of a comprehensive
land use plan adopted by the Borough. From
the record before us, it appears that the
Borough Assembly did not discuss this issue
at all when the Assembly debated and enacted
the noise ordinance.3
Because I have these doubts about
the Boroughs offered justification for the
noise ordinance, I want to emphasize that our
ruling in this case is not intended to
constitute an endorsement of the Boroughs
legal argument.
_______________________________
1 AS 29.04.020; AS 29.04.030; Libby v. Dillingham, 612 P.2d
33, 42 (Alaska 1980).
2 Alaska Const., art. X, 11; AS 29.04.010.
3 AS 29.35.010; see generally AS 29.35.
4 See, e.g., AS 29.35.150-180; AS 29.35.210.
5 AS 29.40.010.
6 Emphasis added.
7 See Tenala, Ltd. v. Fowler, 921 P.2d 1114, 1121 n.10
(Alaska 1996); Lewis v. State, 469 P.2d 689, 691-92 n.2 (Alaska
1970); Bobby v. State, 950 P.2d 135, 138 (Alaska App. 1997).
8 Matanuska-Susitna Borough Code (MSB) 8.52.015.
9 MSB 8.52.035(A).
10Id.
11MSB 8.52.020(A).
12491 U.S. 781, 109 S. Ct. 2746, 105 L. Ed. 2d 661 (1989).
13Id. at 791, 109 S. Ct. at 2754.
14Id. (citation omitted).
15Id. at 796, 109 S. Ct. at 2756.
16Id. at 798-800, 109 S. Ct. at 2757-58 (citations
omitted).
17Id. at 802, 109 S. Ct. at 2760.
18Earley v. State, 789 P.2d 374, 376 n.2 (Alaska App.
1990).
19MSB 8.52.015.
20491 U.S. at 796-98, 109 S. Ct. at 2756-58 (citation
omitted).
21MSB 8.52.015(B); MSB 8.52.035(A).
22Kolender v. Lawson, 461 U.S. 352, 358, 103 S. Ct. 1855,
1858, 75 L. Ed. 2d 903 (1983).
23See generally Carolyn Kelly MacWilliam, Validity of State
or Local Enactment Regulating Sound Amplification in Public
Area, 122 A.L.R.5th 593 15 (West 2006).
24674 So.2d 863 (Fla. Dist. Ct. App. 1996).
25Id. at 867 (emphasis in original).
26653 F.Supp. 775 (D. R.I. 1987).
27Id. at 790.
28820 N.E.2d 766 (Ind. Ct. App. 2005).
29Id. at 768-70.
30MSB 8.52.015(B); MSB 8.52.035(A).
31Earley, 789 P.2d at 376 n.2 (citing Stock v. State, 526
P.2d 3, 7-13 (Alaska 1974)).
32470 N.W.2d 296 (Wis. 1991).
33Id. at 297.
34Id. at 302.
35Id.
36451 S.E.2d 315 (N.C. Ct. App. 1994).
37Id. at 318-19 (listing other cases).
38432 S.E.2d 470 (S.C. 1993).
39Id. at 474. See also State v. Dorso, 446 N.E.2d 449, 452
(Ohio 1983) (construing Cincinnati ordinance to forbid noise
that could be anticipated to offend the reasonable person, i.e.,
the individual of common sensibilities).
40Beaufort, 432 S.E.2d at 474 (citations omitted).
41MSB 8.52.015(A).
42MSB 8.52.035(A).
43Id.
44MSB 8.52.015(B); MSB 8.52.035.
45Lazy Mountain Land Club v. Matanuska-Susitna Borough Bd.
of Adjustment and Appeals, 904 P.2d 373, 384 (Alaska 1995)
(citations omitted).
46See Jurco v. State, 825 P.2d 909, 917 (Alaska App. 1992).
47See Gregoire v. Natl Bank of Alaska, 413 P.2d 27, 33
(Alaska 1966) (refusal to grant continuance will not be
disturbed on appeal unless there is an abuse of discretion).
48See Disciplinary Matter Involving Triem, 929 P.2d 634,
642 (Alaska 1996).
49Ross v. State, 586 P.2d 616, 618 (Alaska 1978); Beck v.
State, 408 P.2d 996, 997 (Alaska 1965).
50Ross, 586 P.2d at 618; Beck, 408 P.2d at 997.
51Katmailand, Inc. v. Lake and Peninsula Borough, 904 P.2d
397, 402 n.7 (Alaska 1995); Petersen v. Mutual Life Ins. Co. of
New York, 803 P.2d 406, 410 (Alaska 1990); Wren v. State, 577
P.2d 235, 237 n.2 (Alaska 1978).
1 Lazy Mountain Land Club v. Matanuska-Susitna Borough
Board of Adjustment and Appeals, 904 P.2d 373, 377-78,
385 (Alaska 1995). See also Price v. Dahl, 912 P.2d
541, 542-43 (Alaska 1996).
2 Lazy Mountain Land Club, 904 P.2d at 377-78.
3 Minutes of the Matanuska-Susitna Borough Assembly, May
18, 2004, discussion of Ordinance No. 04-092, the Noise
and Vibration Ordinance, adopting chapter 8.52 of the
Matanuska-Susitna Borough Code.
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