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Berkeley eyes noise ordinance again

February 20, 2009|By MATTHEW UMSTEAD

MARTINSBURG, W.Va. -- There has been a lot of noise made over proposed noise restrictions in Berkeley County. And as the years go by, the long-standing debate over adopting limits on noise levels at different times of the day and night only get noisier.

The latest version of a noise ordinance being reviewed by the Berkeley County Commission comes as a lawsuit over noise created by a motocross track rumbles ahead in circuit court and residents continue to complain about noisy neighbors.

A law apparently on the books now is "toothless," and Berkeley County Sheriff's Department deputies have told commission legal counsel Norwood Bentley III it is unenforceable.

The new draft proposes noise levels in residential areas be no louder than 55 decibels from 10 p.m. to 7 a.m. During the day, noise levels would not be allowed to exceed 60 decibels.

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Violators could be fined up to $500 upon conviction of a first misdemeanor offense and up to $1,000 for second and subsequent offenses.

"There are very few days that go by that we don't get asked for a noise ordinance," Bentley told the commission this week.

County residents who live near the Tomahawk MX motocross track near Hedgesville, W.Va., have been asking for an enforceable county noise ordinance since 2003.

The latest noise ordinance draft specifically would exempt "motocross/motorcycle and/or other such organized racing activities" that exist upon the adoption of the new rules.

The proposal also exempts noise caused by organized athletics, railroads, aircraft, emergency work, construction projects, manufacturing/industrial activity and lawn and gardening from 7 a.m. to 10 p.m.

Commissioner William L. "Bill" Stubblefield gave every indication Thursday he was concerned with exempting the existing motocross business, which neighbors contend is a nuisance in the lawsuit filed in November 2008.

Peter L. Chakmakian, the attorney for the motocross track, said residents who initiated legal action against his client were "hypersensitive persons with fastidious and overrefined tastes and nervous disposition" in response to the lawsuit's claims.

"A person of ordinary sensibilities would not be unduly disturbed, nor their tastes offended, by the alleged conduct of defendants on adjoining property," Chakmakian wrote on behalf of motocross track owner and operator Chad M. Gochenour, Tomahawk MX LLC and CMG Holdings LLC.

Describing the circumstances between the track and residents as unfortunate, county officials said the lack of a buffer between them was able to come about because no zoning was in place to restrict the location of racing facilities.

Bentley and Stubblefield both noted the "bowl"-like topography around the track appears to amplify the sounds from the track.

The only enforceable noise restrictions in Berkeley County were adopted in September 2004 in anticipation of the arrival of C-5 cargo planes at the Air National Guard base at Eastern West Virginia Regional Airport.

According to the ordinance, no homes, schools or churches can be built in areas where the noise level caused by the C-5s would be 75 decibels or higher.

Commissioner Anthony J. "Tony" Petrucci said the noise ordinance questions surrounding the motocross track was "sensitive and emotional," but some enforceable rules need to be adopted.

"I don't think we need to wait two years to establish something," Petrucci said.

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