http:\/\/www.audiodevelopers.com\/minnetoska\/wp-content\/uploads\/sites\/4\/2018\/06\/2015-05-31_10-05-19_249.mp3<\/a><\/audio>\nSince talking to the neighbors didn’t get us very far, we tried to get help from Garrett County.\u00a0 In 2012, the Maryland Noise Law (Code of Maryland, Environment, Title 3) was changed to transfer enforcement authority from the Maryland Department of the Environment to local governments.\u00a0 According to the MDE website, the contact for local noise concerns in Garrett County is the\u00a0 Commissioner’s Office, where we talked to Deborah Carpenter, Director of Garrett County Planning and Land Management. \u00a0Per the discussion with Ms. Carpenter, the Garrett County Commissioner\u2019s office attempted to develop an enforcement program but was not able to implement the policy.\u00a0 The\u00a0 explanation was that local business leaders who benefit from the recreational activities were able to suppress this effort.\u00a0 So, even though there is a state law that mandates noise thresholds and MDE has transferred enforcement responsibility to the County, Garrett County will not enforce the law.<\/p>\n
The MPOA also discussed the situation with the Garrett County Sheriff\u2019s Office, and was told that because the MPOA is private property, enforcement of the Maryland Environmental Noise Standards was the responsibility of the homeowner\u2019s association (MPOA).\u00a0 That didn’t sound quite right, but it was obvious from their response that further discussion wasn’t going to change anything.<\/p>\n
At this point, it wasn’t clear whether we should deal with the noise problem as a neighbor vs neighbor dispute, or whether this should be worked as an issue for the Board of Directors.\u00a0 Since the person most affected–the one closest to the noise-makers–was the president of the MPOA (me), I was reluctant to drag the entire Board into this dispute, at least in the beginning.\u00a0 So at this point, the Board had issued a warning to the noise makers, but from a legal perspective it was still a personal dispute between two neighbors.<\/p>\n
If you do an Internet search for noise problems, the most commonly suggested solution is to file a complaint with small claims court, citing loss of use of your property as damages.\u00a0 So in 2015, we started with that approach, by keeping a noise log that documented the neighbor’s noise making, and taking noise measurements.\u00a0 In the noise log, we identified days that were good (the rainy days, usually), the days that were awful (4 to 8 hours of noise that eventually drove us from our property), or days that were “fair”, where the noise was bad but not bad enough to drive us away.\u00a0 We gave the awful days a weight of “1”, the fair days a weight of “.5” and good days a “0”, and multiplied those weights by our mortgage payments, and came up with a figure around $3000 for our estimated damages.\u00a0 Off we went to the lawyer, expecting to file a complaint for District Court.<\/p>\n
But our lawyer suggested a different approach.\u00a0 At this point, the noisemakers were trying to make a statement that nobody could tell them what to do, and they would send their kids out to make noise even when the kids had grown tired of riding.\u00a0 And when we held a small birthday party on our front deck, the father sat on his motorcycle, revving the engine for about half hour, just to be annoying.\u00a0 The lawyer viewed this behavior as criminal harassment, and sent me over to the Court Commissioner to file criminal charges.\u00a0 The\u00a0Court Commissioner agreed with the proposed charges of harassment and disturbing the peace, and provided all of the papers we needed to file the complaint.\u00a0 The reason our lawyer suggested talking to the County Commissioner is that once they take the case, the charges are from the state of Maryland, so it costs us nothing to file the complaint.\u00a0 Except the Court Commissioner imposed one requirement on us:\u00a0 I had to sit down and talk to these people before the Court Commissioner would file the charges.<\/p>\n
Talking to the neighbor was a good idea, and it helped end the harassment. \u00a0 We discussed why the noise was a violation of the MPOA covenants, and what legal actions the Board had been considering. \u00a0 Our neighbor admitted that they were trying to harass us, by chucking about it when I brought it up, but he indicated that he was the one in charge at that house (not his wife) and that he would take care of the problem.\u00a0 And we even went outside afterward and measured the noise level from our ATV that had an extra muffler, to prove that it was possible to have an ATV that complied with the noise laws.<\/p>\n
However, the discussion was just a turning point rather than a conclusion.\u00a0 The neighbors knew that they had crossed a line in harassing us, but they still felt entitled to make noise whenever they pleased, and they obviously had no regard for the noise levels established in the Maryland Noise Law.\u00a0 The rest of the summer was relatively noise free, but we entered a new phase in the spring of 2016.<\/p>\n
Part 2 (2016-2017)<\/h2>\n
Starting in the spring of 2016 and through all of 2017, our noise problems continued, but without the harassment and intentionally annoying behavior.\u00a0 One thing that helped considerably is that the neighbors took the racing bikes to a track near Friendsville, Maryland for weekend riding.\u00a0 This resulted in mostly quiet weekends, although there was some riding after returning from the track, and numerous times during the week after school.\u00a0 Most of the riding done on their property was using 4-stroke engines that had much lower noise levels, so instead of 85dB levels inside neighbors homes, the noise was about 75dB.\u00a0 However, 75dB inside our house corresponds to a noise level of about 85dB on our property line, which is 20dB over the legal limit, and enough noise to irritate all adjoining neighbors.\u00a0 Although that was a significant improvement, it was not acceptable, and the Board sent the neighbors a note that they were in violation of the MPOA covenants and Maryland law.<\/p>\n
Another change during this phase is that the Board committed to fixing this noise problem.\u00a0 Rather than being just a dispute between two neighbors with some Board support, it became an MPOA governance issue, and the Board was united in addressing the noise infractions.\u00a0 The Board had sent out notifications about acceptable and unacceptable dirt bike and ATV use to all property owners in 2015, and sent a cease and desist letter through our lawyer to the noisy neighbor.\u00a0 In anticipation of a potential “show-down”, the Board outlined an enforcement process that identified the number of warnings, notices, cease and desist letters and hearings before it would start legal action.\u00a0 The Board invited the noise makers to two different hearings, with no response, although there was some dialogue at a Board meeting in which they made it clear that they “didn’t care”.\u00a0 After another cease and desist letter with a draft court complaint, the Board sent a final letter indicating that the next step if they refused to obey the noise law would be legal action.<\/p>\n
In April 2017, the court complaint was served.\u00a0 We knew we needed to file the complaint to show that we were serious about enforcing the noise standards, but my expectations were that we would settle out of court along the way.\u00a0 Unfortunately, our neighbors decided to fight the lawsuit to the end, and the two settlement discussions we initiated went poorly.<\/p>\n
The defendants hired Mr. Getty, the same lawyer Garrett County uses, to represent them.\u00a0 Mr. Getty pushed back hard at the attempts to settle out of court, by demanding their right to make noise that violated the Maryland noise law.\u00a0 At the first attempt to settle, the defendants offered to limit their riding to just the vehicles with 4-stoke engines.\u00a0 When I asked if those vehicles would comply with the Maryland noise standards, the defendants and Mr. Getty got up and left the room without answering.\u00a0 Our second attempt was done by email, and by that time the defendants had upped their demands to include up to two hours per day of testing the outrageously noisy racing vehicles.\u00a0 In retrospect, we should have questioned how Mr. Getty can negotiate deals among HOA members that violate the noise laws, while providing objective, impartial advice to the county on noise enforcement policy, but that didn’t occur to us at the time.\u00a0 Maybe if we had pressed on that issue a bit harder we could have had a successful out of court agreement.<\/p>\n
The complaint the Board filed with the court had 3 main counts, but two of them turned out to be problematic.\u00a0 One of those “problem” counts was breach of contract for violating the covenants.\u00a0 The breach of contract count is what is typically used by homeowners associations, as the Declaration is considered a legally binding document in Maryland and most other states.\u00a0 We thought that our Declaration was clear and that this count would be effective, but their lawyer found a “loophole” that we hadn’t expected.<\/p>\n
Our Declaration says the “…no nuisance shall be maintained, allowed or permitted on any part of the Property, and no use thereof shall be made or permitted which may be noxious or detrimental to health or which may become an annoyance or nuisance to the neighborhood”.\u00a0 Since the state of Maryland defines a noise nuisance in Title 26 of the COMAR and since the Maryland noise standards are defined as the minimum standards to maintain health and well-being, we expected that the wording in the Declaration was sufficiently clear, and that riding loud vehicles would be a violation of the covenants.\u00a0 Also, the Declaration states that “Any violation of any law, order, rule or regulation, or requirement of any governmental authority shall be remedied by and at the sole cost and expense of the Owner causing such violation”.\u00a0 Since the Maryland noise standards are specified in Title 3 of the Maryland code, we expected that exceeded the noise standards would be a violation of Maryland law and hence be a violation of the covenants.\u00a0 However, their lawyer focused on the line in the same section of the covenants that stated:\u00a0 “Between the hours of 11:00 P.M. and the following 9:00 A.M., no Owner or occupant on a Lot or in the Common Area shall make any loud or unusual noises.”\u00a0 This line, which also appears in quite a few other Declarations for homeowners associations in Garrett County, tends to undermine the other wording in the Declaration by implying that loud or unusual noises are acceptable, as long as they are between 9:00 A.M. and 11:00 P.M.\u00a0 We don’t agree that this is a correct interpretation of that line, but we had another lawyer evaluate this wording and he agreed that there is enough ambiguity to undermine our argument that our Declaration implies compliance with the Maryland Noise Law..<\/p>\n
The other “problem” count was the violation of Maryland state law.\u00a0 While it is true that the noise violated the state law, the Association couldn’t enforce the law because there is no “private right of action”.\u00a0 That means that only Maryland or its governmental units can enforce the state noise law.\u00a0 And as noted previously, Garrett County is not willing to enforce the noise standards, even though there is a Maryland law that states:<\/p>\n
...the people of this State have a right to an environment that is free from any noise that:\r\n\r\n (i) May jeopardize their health, general welfare, or property; or\r\n\r\n (ii) Degrades the quality of their lives<\/pre>\nMr. Getty was fully aware that Garrett County won’t enforce the noise law because he has advised them that they are not required to do so.\u00a0 And his argument to us was that we can’t enforce it.\u00a0 When we had this count reviewed by another lawyer (Mr. Wilkinson), we were advised to petition for a Writ of Mandamus, which is essentially a lawsuit against the county to have them enforce Maryland law.\u00a0 There are a lot more details about this Writ of Mandamus in Part 3.<\/p>\n
The third count was a general nuisance count, mostly related to noise from the summer of 2015.\u00a0 That was actually our strongest complaint and it was certainly defendable, but the fact that the other two counts were so problematic made going forward somewhat risky.\u00a0 But more importantly, we needed more time and a lot of money to re-write the complaint to focus on the nuisance count.\u00a0 We had already spent in excess of $5000 over the past 3 years trying to get our neighbors to obey the law, and it was starting to look like additional legal fees and court time would cost us at least $10,000 to get a favorable judgment.\u00a0 That’s more than the Minnetoska annual operating budget, and I was reluctant to spend that much money without a vote from the property owners that clearly signaled that they wanted to continue.<\/p>\n
Instead of continuing with the lawsuit, we decided to focus on updating the Declaration to close that loophole about making loud noises.\u00a0 We proposed adding a sentence that made it clear that at all times residents must comply with the Maryland noise law.\u00a0 Since there was no time for a special meeting, and given that this was a clarification rather than a new requirement, we used a vote by mail involving all property owners to change the Declaration.\u00a0 The Maryland Homeowner’s Association Act was changed in October of 2017 to allow updates to the governing document with a 60% vote, “notwithstanding the provisions of a governing document”.\u00a0 About 75% of the property owners returned ballots, and 95% of those ballots were “yes” votes, so the Board approved a resolution to update the Declaration.<\/p>\n
Another change that was voted on at the same time was a prevailing party clause similar to that found in homeowner association laws in other states.\u00a0 That prevailing party provision places the burden of all legal costs on the losing party in a lawsuit to enforce the covenants.\u00a0 With these changes in the Declaration, it didn’t matter whether or not we continued with the lawsuit against the noise makers, because if they started up again, we could simply submit another breach of contract complaint with the court, this time with a much clearer and unambiguous Declaration.\u00a0 As a result, we were able to dismiss the existing lawsuit, which we did about 3 weeks prior to the trial date.<\/p>\n
Part 3 (2018)<\/h2>\n
Noise makers are a determined lot, and the dirt bike and ATV noise started up again in the spring of 2018.\u00a0 Clearly, the defendants thought they had “won” when we dismissed the lawsuit, and were free to make as much noise as they cared to.\u00a0 So we sent a letter to them explaining that the update to the Declaration required that they obey the Maryland Noise Law and that if they didn’t, we would file another complaint.\u00a0 That prompted a series of questions from their lawyer, Mr. Getty, who then focused on challenging the legality of the process we used to update the Declaration.<\/p>\n
We had worked out another strategy during the lawsuit to settle out of court, because we didn’t care about\u00a0 “winning” the lawsuit, we just wanted the neighbors to obey the Maryland law.\u00a0 That strategy had two parts:\u00a0 one was the update to the Declaration, which we did, and the second was to put the burden of enforcement back onto the county, where it belonged anyway.<\/p>\n
We have come to believe that the best long-term solution is to have the county enforce the noise law, and that trying to enforce the law as a subset of our Declaration is not a good idea.\u00a0 Enforcement at the HOA level pits neighbors against each other (there is a high social cost), and it forces HOA’s to do the work of law enforcement officers without the training and tools and authority that minimizes the risk.\u00a0 Not only did this lawsuit damage our community relationships, it has been the cause of considerable anger and has nearly resulted in violence.\u00a0 For example, when one Board member was diagnosed with cancer, he seriously offered to spend the rest of his life in jail to \u201celiminate\u201d the noise problem.\u00a0 Fortunately, his diagnosis was not \u201cterminal\u201d, and we were able to help him manage his frustration.\u00a0 But that sense of frustration was shared by all Board members to some degree, and it is not safe.<\/p>\n
So, we are still looking for a way to get Garrett County to help us enforce the law.\u00a0 When we consulted with Mr. Wilkinson about our case, he recommended that we petition for a Writ of Mandamus to force the county to enforce the noise law.\u00a0 And when we consulted with Mr. Alderson, he seconded that legal opinion and put it in a way that made a lot of sense.\u00a0 He said that our situation is one of failure of government.\u00a0 The legislative branch (Maryland Assembly) has passed laws that limit noises to reasonable levels, and it is up to the executive branch (Garrett County, in this case) to enforce those laws.\u00a0 If the executive branch fails to enforce the laws, you go to the judicial branch to force them to do their job.\u00a0 And that’s the purpose of the Writ of Mandamus.\u00a0 As defined by the Legal Information Institute:<\/p>\n
A (writ of) mandamus<\/b> is an order from a court to an inferior government official ordering the government official to properly fulfill their official duties or correct an abuse of discretion<\/pre>\nWe know that Mr. Getty has made the claim that enforcement of the Maryland Noise Law is discretionary because the regulation says that the government may adopt enforcement policies, and he claims that the use of the word “may” implies that the county has no responsibility to enforce the law.\u00a0 However, the legal definition of the word “may” doesn’t support Mr. Getty’s claim, and we believe there is a clear abuse of discretion by not enforcing the noise law.<\/p>\n
But before filing a petition for a Writ of Mandamus, our level-headed lawyer (Mr. Wolf) suggested we work with the County Commissioner to see what they can do to help us.\u00a0 We tried going to the Commissioner’s Office in 2015 without results, but that was before we spent a lot of money and had to battle with the county’s lawyer.\u00a0 So, on June 4 of this year, two us went to the open County Commissioner meeting to plead our case.\u00a0 We were well received and the county officials seemed anxious to help us with this problem.\u00a0 We will continue to develop this relationship, although we know that it may be a while before Garrett County adopts a noise enforcement policy that we can use to better manage our noise problem.<\/p>\n
Something that surprised us at the County Commissioner meeting was the number of people who came us to us afterward, citing similar problems in their HOA or COA.\u00a0 We had already decided that if we file a lawsuit against the county, we wouldn’t go it alone–we would team up with other HOA’s in Garrett County.\u00a0 We had compiled a list of about 58 HOA’s in Garrett County and an additional 25 Condominium associations and identified whether their Declaration addressed noise issues, making them likely candidates for joining the lawsuit.\u00a0 We are just starting to identify the points of contact for these other associations, and will begin reaching out to other associations to gauge interest.\u00a0 If the county responds quickly enough, we may not need to continue this effort, but at least we have a plan to achieve our goal.<\/p>\n
Conclusion<\/h2>\n
Our quest for a quiet community has been a long, difficult, expensive and time-consuming effort, and it’s still not over.\u00a0 It’s important to realize that this dispute is not about grumpy old neighbors hating dirt bikes–it’s about quality of life and protecting your property value.\u00a0 Sheriff Bane of Harford County, MD put it well, as reported in the Baltimore Sun:<\/p>\n
\"Noise complaints are quality of life issues.\"<\/pre>\nAnd:<\/p>\n
\"More than anything else, we try to work it out to the benefit of the community so that the neighbors aren't hating each other and wanting to kill each other when we walk away\"<\/pre>\nThat’s what we want:\u00a0 a noise-free environment as guaranteed by Maryland law, and some help in enforcing that law so we don’t end up wanting to kill each other.\u00a0 After 3 years of battling our neighbors and fighting the county’s lawyer, we are frustrated.\u00a0 However, we remain committed to fighting for our right to a noise-free environment, and we don’t intend to give up until we are successful.<\/p>\n","protected":false},"excerpt":{"rendered":"
Intro Garrett County’s natural beauty, open spaces and recreational facilities make it great place to live and visit.\u00a0 But those same features can also attract noisy dirt bikes and other loud recreational vehicles, or attract uninhibited vacationers who like to party at high volumes.\u00a0 So it’s not uncommon for some neighborhoods to have to deal […]<\/p>\n","protected":false},"author":1,"featured_media":0,"parent":0,"menu_order":0,"comment_status":"closed","ping_status":"closed","template":"","meta":{"footnotes":""},"_links":{"self":[{"href":"http:\/\/www.audiodevelopers.com\/minnetoska\/wp-json\/wp\/v2\/pages\/54"}],"collection":[{"href":"http:\/\/www.audiodevelopers.com\/minnetoska\/wp-json\/wp\/v2\/pages"}],"about":[{"href":"http:\/\/www.audiodevelopers.com\/minnetoska\/wp-json\/wp\/v2\/types\/page"}],"author":[{"embeddable":true,"href":"http:\/\/www.audiodevelopers.com\/minnetoska\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"http:\/\/www.audiodevelopers.com\/minnetoska\/wp-json\/wp\/v2\/comments?post=54"}],"version-history":[{"count":24,"href":"http:\/\/www.audiodevelopers.com\/minnetoska\/wp-json\/wp\/v2\/pages\/54\/revisions"}],"predecessor-version":[{"id":102,"href":"http:\/\/www.audiodevelopers.com\/minnetoska\/wp-json\/wp\/v2\/pages\/54\/revisions\/102"}],"wp:attachment":[{"href":"http:\/\/www.audiodevelopers.com\/minnetoska\/wp-json\/wp\/v2\/media?parent=54"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}