Planner: Church’s noise dispute not a zoning issue

Mar. 27, 2013 @ 07:54 PM

City/County Planning Director Steve Medlin this week told newhope church’s neighbors their noise complaints can’t become the basis for a move to revoke its land-use permit.

The issue under city law is strictly a police matter because the church didn’t make any binding promises about emissions to Durham’s Board of Adjustment when it secured permission to build its sanctuary off Fayetteville Road, Medlin said.

Absent such promises, “the Planning Department does not have any authority over this matter,” Medlin said in a Monday email to the neighbors’ lawyer, David McKenzie.

Medlin was reiterating a position initially relayed to the neighbors by his subordinates, one McKenzie was unhappy with because of some wording from the church’s permit application.

In the 2007 application, newhope’s pastor, Benji Kelley, said the church’s use of its south Durham property wasn’t “anticipated to cause any noticeable odor or increase in noise to the surrounding neighborhood.”

The statement addressed one of the many “review factors” the Board of Adjustment has to weigh when it decides whether to approve or deny an application for what’s called a “minor special use permit.”

McKenzie’s clients say the sound of music from the church’s services and rehearsals penetrates the walls of their homes on a regular basis, interfering with their daily routines.

But lawyers for the church say newhope is meeting the letter of the city’s noise ordinance and that its emissions are in line with the ambient sounds of an area on the edge of the city that’s next to a busy highway.

Police earlier this year ticketed the church and Kelley for an alleged noise violation, but the prosecution fell apart earlier this month.

Medlin and his staff say that they can only enforce permit conditions approved by the Board of Adjustment.

Those conditions in general appear in a project’s blueprints, the notes designers attached to or include in those blueprints, and any written promises an applicant agrees to during a public hearing.

In this case, “there were no special conditions associated with noise attached to the order” of the Board of Adjustment, meaning the church only has to meet the city’s noise ordinance, Medlin said.

Zoning inspectors did find, late last year, a couple of permit violations that the church is in the midst of correcting via a new application that’s making its way to the Board of Adjustment.

They included the discovery that the church had installed more parking than its original permit allowed and that it has a preschool that hadn’t appeared on the original plan.