MA- EPA letter on noise ordinance part of Boston lawsuit

OFF THE WIRE
FYI

EPA letter to NH officials attached

www.seacoastonline.com/articles/20100914-NEWS-9140319

EPA letter on noise ordinance part of Boston lawsuit
By Shir Haberman
hamptonunion@seacoastonline.com

NORTH HAMPTON - The information contained in an Aug. 31 letter from EPA
Senior Assistant Regional Counsel Timothy Williamson to North Hampton
Town Administrator Steve Fournier is now part of a lawsuit against the
city of Boston over its motorcycle noise ordinance.

The EPA letter states that just because the U.S. Environmental
Protection Agency requires a label on all motorcycle mufflers indicating
the noise the vehicle produces does not exceed 80 decibels doesn't mean
a municipality has the right to enforce that noise level. The Boston
ordinance passed last June seeks to deny the right of motorcyclists to
operate their vehicles within the confines of the city if they do not
have the EPA label on it.

The motorcycle noise ordinance passed by North Hampton voters at the May
town elections has the same requirement.

Peabody, Mass., resident and attorney Paul Cote, along with four other
Massachusetts motorcyclists filed suit against the Boston ordinance last
year.

"Motorcycles have to be inspected once a year. I have an inspection from
Seacoast Cycles up in Newburyport (Mass.)," Cote was quoted by the
Newburyport Daily News 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 (in
passing its noise ordinance)," he said.

However, a Suffolk County Superior Court judge ruled this past March
that neither Cote nor the other plaintiffs in the case had standing to
bring a suit against the city because none of them had been ticketed
under the Boston ordinance and were, therefore, unharmed by it. The five
men have appealed that ruling and have referred to the EPA attorney's
letter to North Hampton in their appeal brief filed on Friday, Sept. 10.

No date for a hearing on the appeal has been set yet, Cote said, and as
far as he is aware, the Boston Police Department has not issued any
tickets under the new city ordinance.

Even if the Boston ordinance eventually passes court muster in
Massachusetts, Fournier has said he thinks 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.

North Hampton Police Chief Brian Page has declined to enforce the town's
new ordinance. The Select Board has supported the chief's position, but
has not officially ruled on the issue.

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