Boston noise ordinance not being enforced Legal challenge is currently awaiting court action

OFF THE WIRE
http://www.seacoastonline.com/articles/20100702-NEWS-7020325 Boston noise ordinance not being enforced Legal challenge is currently awaiting court action 7/12/2010 2:00 AM NORTH HAMPTON — Those who developed the motorcycle noise ordinance passed by voters at the May 11 town election often point to the success of an almost identical ordinance in Boston as the basis for their argument the town's ordinance can — and should — be enforced.

Previously the town received three legal opinions — from the its legal counsel, the organization that indemnifies the town against lawsuits and the Rockingham County Attorney — indicating it is not enforceable.

And now, the success of the Boston ordinance is being questioned.

Calls placed to police and a city councilor's office in that city, indicate that the Boston ordinance is the subject of a lawsuit and that police there have yet to try to enforce it.

"As of this time we are not enforcing it," Officer Eddy Crispin of the Boston Police Department's media relations group said Wednesday.

This directly contradicts e-mails being circulated by supporters of the North Hampton ordinance that allegedly state the opinion of Janet Knott, an administrative assistant to City Councilman Salvatore LaMattina, who sponsored the Boston ordinance. Knott is quoted in these e-mails as estimating that the Boston police have issued "250 citations in the last year (in enforcement actions based on the Boston motorcycle noise ordinance) at $300 each."

Contacted Wednesday, Knott initially said she was not sure of the number of citations issued, but was confident the ordinance passed last May was being enforced. When advised of Crispin's statement, Knott indicated that she would investigate the situation.

She called back later in the day and indicated there was some confusion over whether the ordinance was actually being enforced.

"I talked to Officer Crispin, and we're investigating it further," Knott said. "We're going through the Police Department's research department. That's the way it has to be done."

Crispin's assertion, however, was corroborated by an article that appeared on the NorthEndWaterfront.com Web site last September, three months after the Boston ordinance was to go into effect citywide. The Web site reports news events in the North End and waterfront neighborhoods of the city.

"The initiative (to begin a voluntary motorcycle noise reduction program in those neighborhoods) follows the efforts of District 1 City Councilor Sal LaMattina, who introduced a city ordinance that calls for an EPA stamp on all approved motorcycle mufflers operating in Boston," the article stated. "Without such a stamped muffler, the biker will be ticketed for a $300 fine.

"The ordinance was approved by the City Council and signed by the mayor," the article continues. "However, a legal challenge has delayed its enforcement pending court proceedings."

Crispin's claim that police were not yet enforcing the Boston ordinance was further substantiated by Peabody, Mass., attorney and Amesbury, Mass., resident Paul Cote, one of the five men who brought suit against the city over the noise ordinance. It was that legal challenge that initially stalled enforcement.

"Motorcycles have to be inspected once a year. I have an inspection from Seacoast Cycles up in Newburyport (Mass.)," Cote was quoted by the Daily News of Newburyport as saying when the lawsuit was filed in July 2009. "They put a sticker on my license plate, and that gives me the right to operate my motorcycle in all 352 cities and towns in Massachusetts, as well as other states because there's reciprocity. The city of Boston does not have the authority to do what it did."

Cote confirmed Wednesday that his lawsuit was dismissed in March of this year based on a Suffolk County Superior Court judge's ruling that neither he nor the other four plaintiffs had standing to challenge the law since they were never issued a ticket for failing to comply with it. A motion to reconsider was filed in April and rejected in May of this year.

"The judge never ruled on (the ordinance's) merits," Cote said.

He said the issue is now awaiting a review by the Appeals Court.

"We have put out the word to as many motorcycle riders as possible to get in touch with us if they get a ticket (under the new ordinance)," he said Wednesday. "We will immediately add their names to the list of plaintiffs.

"So far, I have not heard of any tickets being issued," Cote said Wednesday.

The Massachusetts Motorcycle Association, which opposes the ordinance, issued a statement on May 5 of this year that police had not issued any tickets for non-compliance with the Boston ordinance.

Even if the Boston ordinance eventually passes court muster in Massachusetts, North Hampton Town Administrator Steve Fournier believes the town's new motorcycle noise ordinance will still be unenforceable in New Hampshire because of differences in the way the governments of the two states operate.

"We're a 'Dillon Rule' state, (Massachusetts) is a 'Home Rule' state," Fournier said.

In a Dillon Rule state, cities and towns can only regulate things the state specifically gives them the right to regulate. Cities and towns in Home Rule states have a greater ability to self-regulate, the town administrator said.

His contention that the differences between the two states would impact whether the North Hampton ordinance can be enforced was supported by the Local Government Center in a letter dated May 28, 2010. The center prepared the letter in response to Fournier's request for a legal opinion on the new motorcycle noise ordinance.

"(State law) RSA Chapter 266 (which sets motorcycle noise guidelines) does not contain a provision expressly allowing additional regulation by municipalities, and the level of specificity of state regulation does not suggest that local regulation is permitted," wrote LGC Staff Attorney Kimberly Hallquist in the legal opinion. "Thus it is reasonable to conclude, given the comprehensive regulation of motor vehicles under RSA Chapter 266, ... that any local regulations that conflicts with or frustrates the state's purpose will be found preempted and, thus, invalid."

Fournier said that he, in keeping with the will of the Select Board as expressed at its June 14 meeting, is preparing to submit a request for declaratory judgement on the whether the town ordinance is enforceable to the Rockingham County Superior Court.

The town administrator is also trying to get similar opinion from the EPA, he said.