Tulsa Law Review Volume 53 Issue 1 Article 2 Fall 2017 How Science Can Improve Regulation: Noise Control in Urban Areas Luis Inaraja Vera Follow this and additional works at: https://digitalcommons.law.utulsa.edu/tlr Part of the Law Commons Recommended Citation Luis I. Vera, How Science Can Improve Regulation: Noise Control in Urban Areas, 53 Tulsa L. Rev. 33 (2017). Available at: https://digitalcommons.law.utulsa.edu/tlr/vol53/iss1/2 This Article is brought to you for free and open access by TU Law Digital Commons. It has been accepted for inclusion in Tulsa Law Review by an authorized editor of TU Law Digital Commons. For more information, please contact [email protected]. Vera: How Science Can Improve Regulation: Noise Control in Urban Areas HOW SCIENCE CAN IMPROVE REGULATION: NOISE CONTROL IN URBAN AREAS Luis Inaraja Vera* The issue of noise is becoming increasingly problematic in urban areas. Research has revealed that it not only contributes to hearing loss, but also to cardiovascular disease, psychiatric disorders, and even slower language development and learning in children. Preventing these effects would require a significant decrease in noise levels. However, experts report that community noise levels are actually increasing. Moreover, zoning in many cities and towns is shifting to a model in which different types of land uses tend to be closer to one another, which increases the potential for conflict over noise. This Article draws on the scientific literature on noise to argue that cities can alle- viate this problem by improving noise ordinances and proposes a non-exhaustive list of measures aimed at reaching this goal. First, adjusting noise standards to reflect citizens’ varying tolerance for noise at different times of the day would make noise ordinances more efficient. Second, measuring noise levels where the harm is caused, rather than where the noise is produced, would add flexibility to noise control frameworks. Third, by accounting for noise characteristics—frequency and impulsiveness—that play an important role in determining how unpleasant a particular type of noise is, municipalities would be able to more adequately evaluate the harm that noise can cause. While this list focuses on what municipalities can do to improve their noise ordi- nances, these recommendations can be applied to regulation by other levels of govern- ment. This Article is mainly concerned with noise in mixed-use districts, and therefore focuses on improving regulatory frameworks in the municipal context. However, because this Article’s suggestions are aimed at making noise control frameworks more effective and efficient, states and the federal government can also incorporate them into their noise- control statutes and regulations. INTRODUCTION ........................................................................................................ 34 I. BACKGROUND: MIXED-USE DISTRICTS AND THE PROBLEM OF NOISE ................. 37 A. The Cumulative Zoning/Noncumulative Zoning Distinction ............. 37 B. Performance Zoning ............................................................................ 39 II. NOISE REGULATION AT THE LOCAL LEVEL ......................................................... 40 *Research Fellow, NYU Furman Center for Real Estate and Urban Policy, New York University School of Law. The views expressed in this Article are the author’s alone. For helpful conversations and comments, I would like to thank Roderick Hills, Mark Willis, Joshua Ebersole, Gita Khun Jush, Eric Stern, and Michael Suher. 33 Published by TU Law Digital Commons, 2017 1 Tulsa Law Review, Vol. 53 [2017], Iss. 1, Art. 2 34 TULSA LAW REVIEW [Vol. 53:33] A. Noise and Federalism .......................................................................... 40 1. Federal Noise Regulation ............................................................. 40 2. Noise Control at the State Level: Nuisance and Regulation ......... 41 a. Nuisance ................................................................................ 41 b. Nuisance v. Regulation .......................................................... 43 3. Local Regulation........................................................................... 45 B. The Basic Principles of Noise Regulation .......................................... 46 C. Types of Noise Ordinances ................................................................. 47 1. Immission Ordinances: Matrix System ......................................... 47 2. Immission Ordinances: Non-Matrix System ................................ 48 3. Emission Ordinances .................................................................... 49 III. DESIRABLE FEATURES OF NOISE ORDINANCES ................................................. 50 A. Varying Noise Limits Depending on Time and Day ........................... 50 B. Emission v. Immission ........................................................................ 53 1. The Case for Immission Frameworks ........................................... 53 2. Addressing the Criticisms to Immission Frameworks .................. 54 3. Conclusion: Immission Frameworks with Specific Emission Provisions ..................................................................................... 55 C. Annoyance .......................................................................................... 55 1. Frequency and Tonal Noise .......................................................... 56 2. Sound Impulsiveness .................................................................... 57 IV. TRANSITIONAL ISSUES: GRANDFATHERING AND REGULATORY TAKINGS ......... 57 A. New Noise Ordinances and Grandfathering of Existing Facilities ..... 57 B. Could Amending a Noise Ordinance Constitute a Taking? ................ 59 1. The Takings Framework Relevant to New Regulations ............... 59 a. Diminution in Value .............................................................. 60 b. Investment-Backed Expectations .......................................... 60 c. The Character of the Regulation ............................................ 61 2. Applying the Framework to Noise Regulations ............................ 63 CONCLUSION ........................................................................................................... 64 INTRODUCTION Noise, which has been defined as a “disagreeable or undesired” sound,1 is a very serious problem in urban areas.2 Its potential health effects are diverse and some of them 1. Colin H. Hansen, Fundamentals of Acoustics, in OCCUPATIONAL EXPOSURE TO NOISE: EVALUATION, PREVENTION AND CONTROL 23 (Berenice Goelzer et al. eds., 2001). 2. In 2002, for example, New York City’s former Mayor Michael R. Bloomberg adopted the so-called “Op- eration Silent Night” to reduce excessive noise. Jennifer Steinhauer, It Never Sleeps, But City Does Demand Quiet, N.Y. TIMES (Nov. 25, 2002), http://www.nytimes.com/2002/11/25/nyregion/it-never-sleeps-but-city- does-demand-quiet.html. https://digitalcommons.law.utulsa.edu/tlr/vol53/iss1/2 2 Vera: How Science Can Improve Regulation: Noise Control in Urban Areas 2017 HOW SCIENCE CAN IMPROVE REGULATION 35 are unknown to many. While the most common consequences of noise are sleep disturb- ance, hearing loss, and reduction in performance, experts have also identified other more serious effects, such as cardiovascular disease, abnormal endocrine responses, and psychi- atric disorders.3 Researchers have even shown that noise causes children to have slower language development and learning.4 These problems affect a not insignificant portion of the American population. Hearing loss, for example, affects fifteen percent of Americans.5 Preventing some of these effects would require a decrease in noise levels of ten dec- ibels.6 This is a very significant reduction: given the nature of this unit of measurement, a ten decibel decrease results in a sound that is only half as loud.7 Meanwhile, despite the technological advances in the field of noise control, noise levels keep rising. Community noise levels experienced an eleven percent increase in the United States between 1987 and 1997.8 One author explains that noise levels in cities may be increasing at a rate of 0.5 decibels per year.9 This is particularly troubling for many urban areas in the United States, given the growing interest in mixed-use districts, that is, areas where different types of land uses (e.g., residential, commercial, and industrial) coexist.10 Under a more traditional zoning approach, which tended to segregate uses to avoid conflict, the issue of noise was often minimized by merely separating noise-producing activities from areas with high sensitiv- ity to noise.11 As the United States Supreme Court framed it in a landmark zoning decision, “[a] nuisance may be merely a right thing in the wrong place.”12 In mixed-use districts, however, where the separation of potentially conflicting uses is not desired, local govern- ments must find other types of solutions. The existing legal literature on noise control has mostly focused on regulation at the federal level,13 new formulas under tort law,14 new regulatory frameworks to tackle the 3. Stephen A. Stansfeld & Mark P. Matheson, Noise Pollution: Non-Auditory Effects on Health, 68 BRIT. MED. BULL. 243, 244–49 (2003). 4. Charlotte Clark & Stephen A. Stansfeld, The Effect of Aircraft and Road Traffic Noise on Children’s Reading, LITERACY TODAY, September 2005, at 24, 25. 5. Hendi Crosby Kowal, Millions of Americans Need Hearing Aids. Why Don’t They Have