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Noise controls face juggling act in courts
(by Joseph Koziol Jr. - January 11, 2012)
Noise controls face juggling act in courts
By JOSEPH KOZIOL JR.
Munson Township is planning to be a little quieter in the future.
Officials there are planning to use a relatively new section of the Ohio Revised Code to pass a noise-control resolution, township Zoning Inspector Timothy Kearns said.
Mr. Kearns met with Geauga County Planning Director David Dietrich last week to discuss the creation of a model resolution that Munson and other communities can use. Munson would become the second community in Geauga County to pass a noise resolution. Russell Township passes one last year.
It would only be used in the most extreme cases, not for every disturbance of the peace, Mr. Kearns said. "We're looking for the extreme. We're not looking for the dog barking next door."
Being able to control noise is a relatively new concept for townships. It falls under a "general welfare" provision in Ohio law.
In the early 2000s, current Geauga County Probate and Juvenile Court Judge Timothy Grendell, then a member of the Ohio House of Representatives, introduced legislation in the "general welfare" clause adding to townships' powers, which already included health and safety.
Mr. Grendell said last week he decided to address the issue after Bainbridge Township got into a legal fight with Funtime Inc., then operating Geauga Lake Park, over hours of operation and noise.
While his legislation passed, it was not long before politics intervened, Mr. Grendell said. Within six months, an Ohio Senate bill was introduced and passed, essentially removing the powers of general welfare for townships, he said. It was a matter of powerful industry lobbyists with deep pockets that curtailed township powers, he said.
However, that Senate bill has been challenged in the courts and has lost so far because of a "single-subject rule" in the Ohio Constitution, Mr. Grendell said.
"No bill shall contain more than one subject, which shall be clearly expressed in its title," the Ohio Constitution states.
In a Franklin County appellate case, the Senate bill was struck down as unconstitutional, based on the "single-subject rule," against containing various unrelated topics under one bill.
The Senate bill also did not fare well when a developer attempted to challenge Concord Township over a proposed housing subdivision.
Lake County Common Pleas Court Judge Eugene Lucci found in favor of the township, agreeing with the Franklin County Court that the Senate bill is unconstitutional.
"A legislative enactment violates the one-subject rule where a court determines that the various topics contained in the enactment lack a common purpose or relationship, and there is no discernible practical, rational or legitimate reason for combining the provisions," Mr. Lucci wrote. "The one-subject rules prohibits disunity in subject matter, not plurality." He said he found no "common purpose or relationship" in the various topics covered under the Senate bill.
The developer has since filed an appeal with the Ohio 11th District Court of Appeals.
Mr. Grendell said he attempted to argue with his colleagues in the Statehouse after the first appellate court ruled the Senate bill unconstitutional. But he said the big money interests prevailed, and his fellow legislators declared the bill to be found unconstitutional only in that court's jurisdiction. He said only a Ohio Supreme Court ruling would invalidate the bill statewide.
Now, he said, if the 11th District Court finds it unconstitutional, townships can continue to use the general welfare through the region under the court's jurisdiction. The court covers Lake, Geauga, Ashtabula, Trumbull and Portage counties.
Mr. Grendell said communities like Russell can continue to enforce their noise regulations in the meantime. That could change if someone challenges the resolution, and a court upholds the Senate bill.
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