OCEAN CITY — Resort officials this week approved hiring an acoustical engineering firm to record accurate sound measurements on the Boardwalk and other areas in an effort to strengthen the noise ordinance, but it certainly wasn’t easy.
During Monday’s meeting, the Mayor and Council heard a request to spend $50,000 to hire an acoustical engineer to take sound measurements in an effort to bolster the town’s existing noise ordinance. The acoustical engineer will take measurements of the ambient noise on the Boardwalk as well as the noise associated with certain buskers to provide statistical data to aid in enforcement and, potentially, in legal challenges.
The town has been challenged several times over the years by street performers on various issues related to First Amendment rights and freedom of expression in a public forum. Each time, the federal judge for the most part ruled in favor of the performers. In 2013, a Boardwalk violinist successfully challenged Ocean City in federal court over First Amendment and freedom of expression issues and, most recently, a group of Boardwalk buskers challenged the town in federal court, resulting in much of the town’s code regarding street performers being struck down.
In those cases, the plaintiffs had acoustical data to back up their claims, while the town did not have the same information available in its defense. Much has been quiet, so to speak, on street performer issues in the years since the court cases, but the noise issues have flared up again this summer. To that end, City Manager Doug Miller on Monday recommended hiring the acoustical engineering firm for $50,000 to take and record factual decibel-level data that can be used to help enforce the noise ordinance and, potentially, to be used in court if the town goes down that road again.
“As you are well, well aware, we have been in federal court several times regarding our Boardwalk performers,” he said. “This year, we’ve had a difficult time addressing excessive noise on the Boardwalk because we’ve never professionally established sound minimums to put that in our noise ordinance. To do that, we have to hire an acoustical engineer.”
Miller said he recommended contracting the engineer to begin to collect the data in what remains of this summer.
“There is a little bit of urgency because if we want to take accurate sound measurements, we want to do that in season,” he said. “That’s why this is before you now.”
City Solicitor Heather Stansbury said some of the same old issues reappeared earlier this summer and it took some time to send out requests for proposal and interview potential firms for the contract.
“Unfortunately, these issues developed through late May and into early and mid-June,” she said. “If we’re going to do this, we need to clarify with them they need to be here on the ground taking measurements now before the season ends. We need to capture not only the ambient noise that exists on the Boardwalk but the other noise that we experience during the season.”
Councilman Mark Paddack, who has been on the front lines of the noise issue for years as a former police officer and a member of the Noise Board, pointed out the town has already lost a significant amount of money in its battles with the buskers.
“We have a commercial section and a residential section, and then we have the Boardwalk,” he said. “The town of Ocean City spent approximately a quarter of a million dollars on federal cases because the Boardwalk businesses did not like the fact we have street performers.”
Stansbury explained some of the federal court cases regarding street performers didn’t go the town’s way because the town lacked the necessary statistical information the hiring of the acoustical engineer would provide.
“We were in federal court and we did have some difficulty at that time,” she said. “The issue was we didn’t have acoustical sound measurements and the opponent did. The court had trouble with how our noise ordinance was crafted and if it was rationally based. The issue that is presently at hand is that section of the noise ordinance that pertains to the Boardwalk was struck down by the court. We can argue if that should have happened or should not have happened, but it did happen.”
Stansbury said the information provided by the acoustical engineer would be used in all of the sections of the town code that address noise, whether it’s the Boardwalk, residential or commercial.
“We’re trying to rationally base our noise ordinance on some specific data as well as the needs of the town,” she said. “The town code has several noise provisions all of which do no treat noise exactly the same.”
However, Paddack vehemently objected to the notion the hiring of the acoustical engineer related to anything but the street performers and the Boardwalk.
“Section B was jammed into this ordinance,” he said. “Now, we’re moving forward and we’re ready to spend $50,000 so an acoustical engineer tells us what common sense says. What the town did years ago, in my opinion, was wrong and it cost our taxpayers over a quarter of a million dollars. Now, we’re going to spend another $50,000 to tell us what common sense already tells us. We know when it’s loud on the Boardwalk.”
Stansbury attempted to clarify the issue was related to all sections of the code regarding noise and not just the Boardwalk.
“To be very clear, this is not in it’s entirety about street performers,” she said. “Noise comes up in the town code several times, not just the Boardwalk.”
However, Paddack insisted the only reason the council was considering collecting the acoustical data was related to the buskers.
“Don’t kid anybody here,” he said. “It’s about street performers. It doesn’t have anything to do with commercial or residential. Let’s be transparent here. We’re going after the street performers.”
Councilman Matt James attempted to calm the discussion, which was beginning to unravel, by reiterating it was about the entire noise ordinance and not just issues related to the Boardwalk.
“I just want to clarify the intent of this is not just about street performers,” he said. “It may touch on the Boardwalk, but this has implications in many other areas of the town. This is going to help us with some of the issues we have.”
The council ultimately voted 5-1 with Paddack vehemently opposed and Councilman Tony DeLuca absent to approve the $50,000 expenditure. Mayor Rick Meehan acknowledged the issue had its roots in certain street performers, but that it would apply to other noise issues as well, including some rather new issues on the landscape.
“I’ve sat in court in these cases,” he said. “We figured out just how important it was to have this information available to us when we were up there. It did cost about a quarter of a million dollars, but this is not just about street performers. It’s also about some of the new things we see now on the Boardwalk with the different things people are carrying around and they can get very loud. There are all kinds of issues that come up about noise continuously. This puts us in a better position to defend ourselves and we can enforce and hopefully solve some of these issues.”
