New Hampshire,Deadline passes, noise ordinance not being enforced

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Deadline passes, noise ordinance not being enforced
Town awaiting answer from EPA regional attorneys
By Shir Haberman
news@seacoastonline.com
July 16, 2010 2:00 AM

NORTH HAMPTON — When voters passed the town's new motorcycle noise
ordinance, officials were given 60 days in which to iron out any
problems with enforcing it. As of today, 66 days have passed since the
May 11 town elections and the Select Board has made no decision
concerning whether the law can be enforced.

"For the time being, the chief's position stands," Town Administrator
Steve Fournier said.

Fournier was referring to Police Chief Brian Page's adamant stand
against enforcement of the ordinance.

"It's not that I don't want to enforce it," Page said. "It's that I
can't. It's illegal."

Fournier said the town is currently waiting for an answer from the EPA's
regional attorneys concerning the ability of the town to enforce the
ordinance, which calls for any motorcycle parked or ridden in North
Hampton to have a valid EPA label on its muffler indicating the
equipment produces only 80 decibels. The state allows motorcycle exhaust
systems to put out up to 108 decibels.

An idea to ask a Rockingham County Superior Court judge to rule on
whether the ordinance can be legally enforced has been dropped, Fournier
said.

"We can't go to court until we're sued (over a summons issued under the
new noise ordinance)," he said.

Meanwhile, Page is planning to continue to do what he has been doing to
decrease the problem with noisy motorcycles. He said he will be joining
with area and state police departments in conducting official motorcycle
checks in Seacoast towns.

"I'm just finalizing the date of the first one," the chief said this
week.

The chief's position has been supported by three legal opinions secured
by the town.

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, were presented to the Select Board in June.

"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 Fournier.

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.

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."
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