Noise injunction unconstitutional, lawyers for church say

Feb. 13, 2013 @ 06:15 PM

A neighbor-requested injunction against newhope church’s noise emissions would be an unconstitutional prior restraint on the south Durham congregation’s First Amendment freedoms, the church’s lawyers argue.

Such an injunction would in practice violate the congregation’s rights to free speech and freedom of religion, lawyers Bill Thomas, Jay Ferguson and David Lewis argued in a recent court filing.

And federal courts “have been clear that the protection of First Amendment rights takes precedence over lesser governmental interests,” the lawyers said in their brief.

The filing came as lawyers try to sway Superior Court Judge Bryan Collins, who’s expected to rule Monday on the neighbors’ petition for a preliminary injunction.

Collins, a visiting judge from Wake County, held a hearing on the request Feb. 1. He held off on making a decision and gave both sides a chance to file additional arguments.

The church and residents of the adjoining Hills at Southpoint neighborhood have been at loggerheads for about two years, with the neighbors arguing that amplified music from newhope’s services and rehearsals is penetrating their homes.

The neighbors and their lawyer, David McKenzie, reject the First Amendment argument.

“This case is about trespass, nuisance and noise,” McKenzie said in his brief to Collins. “This is not a case about restricting religious practices or speech. newhope may worship however it wishes; it just cannot do so in its neighbors’ homes.”

Church leaders argue that they’ve complied with the decibel limits that the city has mandated in its noise ordinance. That law bars emissions louder than 60 decibels during the day.

But police recently ticketed newhope pastor Benji Kelley, alleging a Dec. 23 violation of the ordinance. Earlier reports filed by a city police officer, Marty Walkowe, told of November emissions as loud as 72.2 decibels.

The Thomas/Ferguson/Lewis brief said the church doesn’t quarrel with the city’s power to enforce “a properly drafted and enacted noise ordinance.”

The lawyers said the decibel limit amounts to the city’s definition of what’s reasonable under the law, and indicated that they didn’t think a judge in a civil case should step in until the criminal case against Kelley is resolved.

“Ultimately, the ‘reasonableness’ of the sound levels will be and must be determined by a jury of 12 members of the Durham community,” they said. “Until that time, newhope’s right to worship should not be infringed.”

Court calendars indicate that Kelley is due to make a court appearance in connection with his ticket on Tuesday.

The brief from newhope’s lawyers left the door open for the church to challenge any action based solely on the city’s ban on unreasonable noises – a key point, as neighbors have criticized police for holding off on issuing a ticket until they obtained an alleged limit-topping decibel reading.

McKenzie, in a letter to city officials last year, noted that the N.C. Supreme Court has said a decibel limit isn’t necessary to make a noise ordinance legal.