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Berkeley noise ordinance toughened

March 06, 2009|By MATTHEW UMSTEAD

MARTINSBURG, W.Va. -- The Berkeley County Commission in a 2-1 vote Thursday morning adopted a more stringent noise ordinance, but top law enforcement officials said hours later that they do not have the equipment to enforce the new rules put into effect.

Berkeley County Sheriff Kenneth M. "Kenny" Lemaster Jr. and West Virginia State Police 1st Sgt. E.D. Burnett said their respective agencies did not have decimeters to measure whether the new noise thresholds specified in the ordinance were being exceeded.

"I don't have any decimeters at all," Lemaster said.

Individuals who cause noise that exceeds the 50-decibel level from 10 p.m. to 7 a.m. or the 60-decibel daytime level in a residential setting could be fined up to $500 for a first offense and as much as a $1,000 for second and subsequent offenses, according to the ordinance.

Exceptions to the noise limits were made for hunting, target and range shooting, agriculture, forestry, construction, aircraft, railroad, lawn mowing, gardening and other activities.

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Organized motocross racing and similar racing activities, however, was not exempt as Commission President Ronald K. Collins had supported.

Collins suggested the commission's failure to include an exemption for motocross would put an existing business out of business, which he believed was against state law.

"I don't feel we have the legal right," Collins said. Commission legal counsel Norwood Bentley III said after the meeting said he disagreed with Collins' view and believed the ordinance could withstand a legal challenge.

Motocross track owner Chad Gochenour, who attended Thursday's meeting, declined to comment when asked if he thought the ordinance would put his motocross track, Tomahawk MX near Hedgesville, W.Va., out of business.

Before the vote was taken, Collins seemed surprised that Commissioner Anthony J. "Tony" Petrucci seconded Commissioner William L. "Bill" Stubblefield's motion, which included the elimination of any exemption for motocross as proposed.

Both agreed the exception essentially wasn't fair to other businesses, including bars.

"If we make an exception for the motocross, where do we draw the line (with other businesses wanting an exemption)?" Stubblefield said before the vote.

If an exception was made for motocross, all businesses in the county should be included in the ordinance as being exempt, said Petrucci, who owns a small business.

"We're not telling a person that we're going to close you down," Petrucci said.

"It's time for us to step up to the plate and make a decision," Petrucci said of the noise issue, which has been the subject of number of meetings and hearings since 2003.

After the meeting, Stubblefield said the commission had a responsibility to respond to the concerns of residential property owners, including those who owned homes near Gochenour's track before it began.

Stubblefield said he found that there were more than 90 homes built prior to the track's operation, but admitted not all were affected by the racing venue's noise levels, which officials have said are amplified by bowl-like topography.

A lawsuit pending in circuit court against the motocross track by a group of neighbors claims the business is a nuisance.

In response, the motocross track's attorney has dismissed the claims by the plaintiffs, who he described as "hypersensitive persons with fastidious and overrefined tastes and nervous disposition."

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