Judge declines request for restraining order against church

Feb. 18, 2013 @ 08:51 PM

A judge on Monday denied neighbors of newhope church a temporary restraining order that would have forced the church to turn down its music so it’s not a nuisance to adjoining homeowners.
But the ruling by Superior Court Judge Bryan Collins only set the stage for further court proceedings, as he still has to decide whether to give the neighbors a preliminary injunction before their lawsuit goes to trial.
Collins indicated that he’ll give experts for the church access to neighbors’ homes and experts for the neighbors access to the church so they can take noise measurements.
That “would give me the information needed” later to decide on an injunction, the judge said.
Collins didn’t explain his rationale for refusing the temporary restraining order, but state law says judges can only issue them in cases where the party that filed a lawsuit will suffer “immediate and irreparable injury, loss or damage.”
Temporary restraining orders are “an emergency measure” typically requested at the outset of a case and only sets the stage for further proceedings, UNC School of Government professor Ann Anderson said in a school briefing paper.
A preliminary injunction is a different animal.
The neighbors and their lawyer, David McKenzie, still can get one if they convince Collins they’re likely to prevail at trial and that it’s necessary to protect their rights while the lawsuit remains pending.
McKenzie’s clients sued because they say music from newhope’s services and rehearsals is audible inside their homes. The problem is disrupting their lives and devaluing their property, they contend.
Church leaders say the music meets the city’s noise limits. That’s an issue in dispute because Durham Police Department officers recently ticketed newhope pastor Benji Kelley, alleging that the church violated the 60-decibel limit on Dec. 23.
Kelley’s case is due to come up in court this morning.
Collins is only hearing the neighbors’ lawsuit. He is a visiting judge from Wake County.