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New York City's Noise Laws: Do They Work?
According to a recent Daily News poll, most New Yorkers cite NOISE as the most annoying feature of urban life(1). Furthermore, when the NYC Police Department instituted its quality of life telephone hotline in August, 1996, 43% of complaints received related to noise(2). The noise that annoys New Yorkers comes in many forms from many places. Shrieking subways(3), thudding pile drivers(4), roaring boilers(5), noisy neighbors(6), raucous restaurants(7). Community meetings throughout the City regularly address the failure or refusal of City agencies to effectively respond to noise complaints. Excessive Noise is Unhealthy Excessive noise is hazardous to our physical and mental health(8). The body reacts to unwelcome noise of any intensity indirectly as it does to other intrusive stressful stimuli: elevated blood pressure, excessive secretion of hormones, changes in the rhythm of the heart. There is a growing body of literature that suggests that these physiological responses may lead to actual bodily damage in adults and in children(9). In addition, the frustration of not being able to limit distracting noise compounds the body's physiological responses. In some cases, noise drives people to commit homicide or suicide. Noise Abatement Technology is Effective People become incensed about excessive noise in part because they have an intuitive sense that it can be stopped. Noise abatement technologies employed by acoustical experts, including suspended ceilings, resilient mountings of motors and pipes, acoustical windows and the use of sound absorbing materials are well-known, long practiced and can indeed significantly lower decibel levels. NYC Noise Statutes For all the talk about noise and the desire to abate the din, it is actually surprising to discover that virtually no one even knows what noise laws are on the books, the protections that are afforded and how the laws are (and are not) enforced(10). New York City has two primary statutes that limit noise levels. The more commonly known statute is the New York City Noise Control Code, which is enforced by the NYC Department of Environmental Protection (DEP Code)(11). It is often described as one of the toughest in the nation. The second statute is a pioneering piece of legislation passed in 1968, following a 3 year rewrite of the entire NYC Building Code (DOB Code)(12). Despite the existence of these two noise codes, a review of reported cases in the Housing and Supreme courts shows that rarely, if ever, are tenants granted relief based on violation of the existing noise statutes. Rather, complaining parties have prevailed (and correctly so) upon principles of nuisance(13), constructive eviction(14), and breach of the Warranty of Habitability(15). Sometimes, tenants who succeed have been awarded substantial rent abatements(16). The more fortunate have obtained injunctions(17). But how many noise cases have been dismissed for insufficient evidence or failure to cite to an objective legal standard? And how many individuals would have sought relief in the courts had they known that a measurable statutory noise limitation had been exceeded? DOB Code Hailed as a model for the rest of the country, the DOB statute specifies maximum permissible sound levels that can be generated by mechanical equipment within a residential dwelling. The drafters of the DOB Code observed that there was "little doubt that the lack of noise control can be detrimental to health, particularly in multi-family dwellings..."(18). The DOB Code and its Reference Tables limit the total sound power levels of all equipment installed contiguous to a residence, the sound insulating capabilities (STC) of floor/ceiling partitions and common walls, the vibration isolation characteristics of pumps, fans, compressors and elevators, and last, but certainly not least, the actual noise transmission levels, measured in each of eight octave bands (NC), within a tenant's apartment (including cooperatives). In addition, when doing new construction or adding new equipment, landlords are expected to self-certify compliance with the DOB Code. But contractors never take the required acoustical tests and landlords do not know whether the sound levels produced by their equipment exceed lawful limits. But is an aggrieved tenant likely to obtain relief from DOB? Inexplicably, DOB has no staff, no equipment and no experience with the enforcement of its own law. In order to lodge an effective complaint, the tenant must submit tests to DOB taken by his or her own acoustical expert(19). The landlord will be given an opportunity to reply and if the tenant prevails before DOB (or wins on appeal before the Bureau of Standards and Appeals), the landlord's underlying permit to operate the offending equipment can be revoked. A revoked permit does not mean a quiet apartment. DOB violations carry monetary fines but no one will be dispatched from DOB to shut off or remove the noise source. For that relief, the determined tenant must proceed to Supreme or Housing court (which have co-extensive equitable powers where the subject is housing) and seek injunctive relief, relying in part upon the code violation(20). Department of Environmental Protection If the DOB Code protects tenants within their own buildings, the DEP Code can be conceived as protecting the public from overall environmental noise(21). DEP knows its own code, does have a (small) staff, does have (some) equipment, and does (in time) respond to complaints. The DEP Code sets maximum sound levels for many specific noise situations, including use of sound reproduction devices, construction activities, transport of containers, exhausts, motor vehicles, paving breakers, commercial music, and generally prohibits "unreasonable noise". According to the Mayor's Management Report on City Agencies, in FY 1996 DEP resolved 97% of all noise complaints while the number of complaints received fell 25% in a one-year period(22). This stands in sharp contrast to the large number of noise complaints made to the NYC Police and to the public's perception, if not actual experience, that the noise laws are nonexistent or unenforceable. A closer analysis of internal DEP statistics(23) reveals that an average of 20% of investigated complaints result in violations, but no information is provided on the outcome of the violations adjudicated by the Environmental Control Board or on repeat complaints. The DEP definition of resolution appears to be a visit by an inspector, not achievement of noise abatement. While an analysis of the entire DEP Code is beyond the scope of this article, the limitation placed on commercial music (live or pre-recorded) is of particular interest because it illustrates that the DEP Code is stricter than the public appreciates. For the most part, the DEP Code measures average noise levels (45dB(A). However, in the case of commercial music, the maximum levels of music permissible inside an affected residence may be deemed excessive if any one of eight octave bands is exceeded. In practice, this means that for someone overwhelmed by the thumping bass of the disco next door, the 45 dB(A) sound averaging measurement may be within legal limits (because the high frequency sounds are not present and the average reading is skewed downward), but when separate octave band readings are taken the low frequency bass is shown to exceed lawful limits. Many tenants who are affected by music from restaurants and other places of entertainment are unaware of the far stricter octave band standard set forth in the DEP Code. If the complaining party is not aware that octave band readings are applicable, he or she will not receive the full protection of the law. It is very difficult to get DEP to send an inspector who is certified to take the required octave band measurement. As a result, many violations are not issued because the proper test was not performed, the complainant continues to suffer the noise, and the statistics record another successful resolution(24). Even in those 20% of the cases where an offending reading is recorded by DEP, the issued violation is returnable before the Environmental Control Board at least a month into the future. The penalty for a first offense is a few hundred dollars, hardly a disincentive to the violator. Like a DOB violation, the DEP violation does not equate with an end to the noise. If the noisy establishment continues its practices, the aggrieved parties are well advised to retain their own acoustical expert, take measurements, and proceed directly to court to seek injunctive relief. The legal responsibility of the landlord for the behavior of its noisy commercial tenant should not be overlooked(25). Also, the public should be aware that quantitative readings would be useful should it become necessary to petition the State Liquor Authority for further relief under the just enacted "Rowdy Bar Bill". Conclusion As the public becomes aware of existing noise laws, enforcement is sought, injunctions are issued and money damages are awarded, the noise makers will realize that it makes sense to abate noise when it is least expensive and most practical - when planning a new venture, calculating the true cost of renovations, designing the interior and undertaking new construction or when installing new equipment. George Locker is an attorney practicing in NYC. Arline Bronzaft is a member of the board, NYC Council on the Environment and professor emeritus, Lehman College, CUNY.
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