NEW HAMPSHIRE:Board backs motorcycle noise ordinance

OFF THE WIRE
www.seacoastonline.com/articles/20100621-NEWS-100629969 Board backs motorcycle noise ordinance By Shir Haberman hamptonunion@seacoastonline.com June 21, 2010 4:45 PM

NORTH HAMPTON — Despite the recommendation of Police Chief Brian Page, supported by three legal opinions, the Select Board last Monday declined to rule the new motorcycle noise ordinance unenforceable.

Instead, the board decided to try to contact lawyers representing the U.S. Environmental Protection Agency and/or ask the courts for a judgment on the ordinance’s legality.

The ordinance, passed by a margin of almost 2-1 at the May 11 town elections, prohibits the parking or operation in town of a motorcycle that does not have an EPA stamp on its exhaust system indicating it emits noise of 80 decibels or lower. Under New Hampshire state law, a motorcyclist is in violation if his vehicle emits more than 106 decibels.

“The town ordinance is trying to circumvent state law and is not enforceable,” Page told the selectmen Monday. “It would be ridiculous for me to direct my men to enforce it.”

Opinions obtained from the town’s legal counsel, Upton & Hatfield of Concord, Rockingham County Attorney James Reams and the Local Government Center of Concord, the organization that indemnifies the town against lawsuits, appear to corroborate the chief’s position.

“I feel that this petitioned ordinance is not legally enforceable because it exceeds the authority granted to municipalities under the controlling federal law,” wrote Matthew Serge of Upton & Hatfield in a May 13 letter to Town Administrator Steve Fournier. “The federal regulations referred to in the petitioned article relate primarily to motorcycle manufacturers and require those manufacturers to affix certain labels to motorcycles verifying that those motorcycles meet certain noise levels.”

Reams concluded the state has jurisdiction over motorcycle noise, not individual communities.

“The state has a comprehensive system for regulating motor vehicles, and I don’t think that (state law) RSA 31:39, Section (n), is intended to leave that area of regulation to the town,” the county attorney wrote in a May 13 letter to Page. “I think a fair reading of the statute is that towns can regulate noise made by anything other than motor vehicles.”

Kimberly Hallquist, a staff attorney with the LGC, in a letter written to Fournier dated May 28, indicated the ordinance as written actually has little to do with the noise a motorcycle makes.

“The ordinance in question is likely invalid in that it does not have a clear relation to promoting the public interest of lower noise levels or meet in an appreciable manner any relation to controlling noise,” Hallquist wrote. “In the ordinance as adopted, the actual noise level of the vehicle is immaterial to whether or not a violation exists.

“Indeed, a vehicle does not have to be emitting any sound at all to be in violation of the noise ordinance given that a vehicle that is merely parked may be in violation of the noise ordinance,” the LGC attorney wrote.

Of the approximately 20 people who attended last Monday’s Select Board meeting, only two spoke in favor of suspending enforcement of the ordinance.

“We’re trying to enforce something the chief says is unenforceable,” said resident Sandy Dewing. “I don’t want my tax dollars going to the Police Department just to have guys sitting around in court all day wasting money. This is absurd.”

Rick Fucci, owner of Route 1 Self Storage and a director of the North Hampton Business Association, pointed to the financial peril the ordinance represents for the town’s business community. At least one motorcycle group in the state has vowed to boycott local businesses if the ordinance is enforced.

“The North Hampton Business Association is not in favor of loud motorcycles (but) any ordinance can have a chilling effect, and this one will have a chilling effect on the three (motorcycle) dealerships we represent,” Fucci told selectmen. “While it is only a few motorcyclists who are creating the problem, motorcyclists function as a group and throw a lot of weight financially.”

However, several members of the audience who spoke indicated the opinions received from the legal sources might not be correct.

Planning Board Chairman Phil Wilson noted ordinances aimed at controlling motorcycle noise have passed court muster in other parts of the country, including Boston and Colorado.

“I have learned (from years of dealing with land-use laws) there are lawyers who are deal-breakers and those who are deal-makers,” Wilson said. “What the chief should have asked the lawyers is, ‘The townspeople have passed this ordinance, now how do we enforce it?’ ”

Wilson suggested the town should make an attempt at enforcing the existing ordinance and see what happens.

Larry Miller, who had the ordinance drafted by a private attorney and spearheaded its passage, called the legal opinion by Serge “worthless,” the one given by Reams “crap” and the LGC’s determination “a conflict of interest” because it was the organization that would have to pay any costs if the town lost a legal decision.

“If I were (sitting on the Select Board) I wouldn’t have the police chief telling me what to do, because he works for you,” Miller said. “The police chief is under the impression — and the state is (too) — that the state law is valid. I believe it’s not.”

Miller also took issue with the business association’s stand. He noted more than 85 percent of the taxes come from residential property taxpayers.

“You are the tail, we are the dog,” he told Fucci.

Under the provisions of the article, the motorcycle noise ordinance will not be implemented until July 11. The board instructed Fournier to try to get in touch with lawyers from the EPA for information on enforcing the ordinance and to investigate motorcycle noise ordinances passed in other states. “We’ve been dealing with this since 2001,” Page said. “From my review, it will be going on for a while longer.”