Ordinance 912 has been prepared by the Town Attorney as an emergency ordinance. If it is approved by Town Council, it will take effect immediately upon passage. The Town’s current noise ordinance has recently been challenged as being too vague. In order to protect the health, safety and welfare of the Town, the Attorney and staff feel that it is appropriate to amend the municipal code governing noise regulations in Town to allow for a more objective standard of measurement and that the Town adopt this on an emergency basis.
— from the Pagosa Springs Town Council packet, May 23, 2019
At their Thursday, May 23 meeting at Town Hall, the Pagosa Springs Town Council performed what might have been an illegal act. Certainly, it was a questionable act.
Legally, in order to create an ‘ordinance’ — to create a new law governing the behavior of its citizens, or to modify an existing law — the Pagosa Springs Town Council must conduct two ‘readings’ of the ordinance, and the full text of the proposed ordinance must be published and made available to the citizens prior to the ‘second reading.’ The second reading typically takes place about two weeks after the ‘first reading’ which allows the community a chance to read, understand and comment on the proposed law. The Council, legally, must allow the public to provide testimony at the second reading, and legally must take that public testimony into account when making their decision.
But the Town Charter allows for the creation of an ‘Emergency Ordinance’ in a situation where the health, safety and welfare of the Town’s citizens are immediately threatened. Such an ordinance can be approved by the Town Council without a ‘second reading’ and without ever allowing the public to review the ordinance prior to its approval.
Prior to the May 23 meeting, no one — not even the Town Council itself — had ever seen a copy of Ordinance 912 prior to the meeting. Copies of the five-page law — written as usual in ‘legalese’ — were distributed to the Council and the audience. Mayor Don Volger opened the floor for public comments, but no one in the audience had ever seen, let alone read or understood, the new law.
AN EMERGENCY ORDINANCE OF THE TOWN OF PAGOSA SPRINGS AMENDING CHAPTER 13 OF THE MUNICIPAL CODE
I normally attend Town Council meetings as a news reporter, and in my experience, our current crop of Council members are typically willing to argue about the pros and cons of new laws, and are typically willing to listen to thoughtful public input. When they are making laws, the Town Council is legally charged with explaining openly and publicly their reasons for voting for or against the new or revised law.
On May 23, however, the Council felt they had the right — or maybe the need? — to amend Chapter 13 of the Municipal Code, without a second reading and without ever allowing the citizens to see and understand the law prior to its passage.
Was there really a ‘noise emergency’ of some type taking place in Pagosa Springs, threatening the health and safety of local citizens?
No.
What was taking place, however, was a lawsuit. A local bar and entertainment venue, Shooters & Shenanigans, along with its former owner, Christopher Blas, was challenging the language of the Town’s Municipal Code regarding ‘noise.’ (Or so it appeared to me, as an outside observer.)
That lawsuit had been the subject of a closed-door executive session earlier in the May 23 Council meeting. Behind closed doors, the Council had talked to their attorney, Bob Cole, and we presume that perhaps attorney Cole explained to the Council why Ordinance 912 had been written as an ‘Emergency Ordinance.’ We don’t know if any decisions were made about Ordinance 912 during the executive session because… well, because the conversation was held in secret.
Here’s the text of the executive session announcement:
VII. EXECUTIVE SESSION
Pursuant to C.R.S. Section 24-6-402(4)(b) Conference with an attorney for the public entity for the purpose of receiving legal advice regarding Christopher S. Blas and Gone Country Ventures, LLC d/b/a Shooters & Shenanigans v. Town of Pagosa Springs.
The amended Municipal Code Chapter 13 concerns ‘noise,’ and the government’s right to control said ‘noise.’
So let’s talk about ‘noise.’ Because — even though the Town Council didn’t want to give the community a chance to understand or comment on this changed law — ‘noise control’ is a complicated business. An emotionally charged business, even.
I mean, what is ‘noise’ exactly? And what isn’t ‘noise’?
The US government got deeply involved in the ‘noise control business’ during the Nixon administration — empowered by the US Constitution and fueled by a total spending of about $1.1 trillion (in 1972, inflation-adjusted for 2009 dollars). From a 1972 EPA press release:
The U.S. Environmental Protection Agency announced today that a major study of airport noise and the development of noise standards for trains and motor carriers in interstate commerce would be the first action programs under new authorities given EPA by the Noise Control Act of 1972. Commenting on the new law, EPA Administrator William D. Ruckelshaus said, “We now have the authority to come to grips with an environmental problem that affects millions of people. The previous lack of this power represented a serious gap in our environmental authorities.”
Under the new authorities, EPA has the responsibility for coordinating all Federal programs in noise research and control. EPA must be consulted by other Federal agencies prior to publishing new regulations on noise. If the agency feels that any proposed new or existing Federal regulations do not adequately protect the public health and welfare, it can call for public review of them. Citizen suits are also authorized.
We can certainly understand the good intentions behind the Noise Control Act of 1972. Recent advancements in transportation technology had come with a high price, when measured in ‘decibels.’ In particular, the sound of a jet engine taking off was, historically, off the charts in terms of human-caused noise. Yes, human beings had created loud sounds prior to the mid-20th century. The sound of military cannons, for example. But these new jet planes were something very unusual, in the historical record, because they were very, very loud (110 decibels at a distance of 100 meters) and they were annoyingly numerous, if you lived anywhere near a military or commercial airport.
Speaking as a US citizen, I am totally in favor of controlling the harmful noise of jet engines.
But do I really want my government controlling music?
Bill Hudson began sharing his opinions in the Pagosa Daily Post in 2004 and can’t seem to break the habit. He claims that, in Pagosa Springs, opinions are like pickup trucks: everybody has one.