What are some potential legal options when noise ordinances are not enforced for a particular local business (in Texas)?

Question

I live in a mixed use zone in the downtown area of a major metropolitan area in Texas.

A recent city ordinance requires bars and restaurants to maintain noise levels below a certain level at different times of the night. The exact levels specified for our zone, which is "Commercial/Mixed Use" are:

• 70 dBA or 10 dB above the background noise level, whichever is lower, from 7 AM to 10 PM
• 60 dBA or 5 dB above the background noise level, which ever is lower, from 10 PM to 7 AM.
• 5 dB shall be subtracted from the maximum Noise Level where the Noise Level includes "impulsive noise"
• The most restrictive maximum Noise Level shall apply at the property where the noise level is audible.

Using different Android applications, I believe that a bar near our apartment is routinely skirting this ordinance by playing music that is audible beyond their property. I have called the police at various times, but they either can't verify that the business is, in fact, violating the ordinance, or (more frequently) choose not to take any action, or sometimes just don't arrive to investigate in time.

I understand that Android apps are not a professional instrument, but neither does the ordinance specify the accuracy of whatever is measuring the noise level. The ordinance in question is Plano City Ordinance 2021-12-6. I am considering purchasing professional equipment, but I also don't feel like I should have to bear unreasonable expenses to get some relief from this problem.

What might be my legal options? Sue the business? Sue the police? What sort of evidence might I consider to prepare and what sort of remedies might I request?

Answer 1

You have verified nothing

Your phone is not a calibrated decibel meter operated by a competent acoustic technician (unless you have qualifications you aren’t telling us about).

It’s also clear that you don’t understand what the ordinance says in a technical sense. You have measured “decibels” but you have not explained whether you have measured A, B, or C weighted readings and which of those the ordinance addresses.

Before you engage in any legal process you will need real expert evidence, which you can get by hiring a professional acoustic consultant to conduct a proper noise survey using calibrated equipment in accordance with the requirements of the ordinance.

What are your legal options?

If you can verify a breach of the ordinance you have several options:

• You could sue under the tort of nuisance to recover your losses. The evidence you have will help prove the nuisance but failing to comply with an ordinance does not ipso facto mean that the bar breached any duty of care it has to you. In any event, you would have to prove they owed a duty of care and prove your losses.
• You could seek an injunction requiring the bar to comply with the ordinance. However, the ordinance itself may not give you standing to do this.
• You could seek a writ of mandamus requiring the person responsible for enforcing the ordinance to do so.

Answer 2

The typical legal option exercised is to request enforcement of the local ordinance. The specific method will vary depending on location, but here is what you do in Austin ("call 311"); in Dallas you could contact the Code Compliance Department if they fix the page; in Houston you can read a council member's helpful list of suggestions looking for item 15. El Paso police will do this esp. if you call 311, and here is San Antonio's noise-complaint page.

You can't sue the police. You can't sue the city council for not passing a tougher law. You might be able to sue the business if they have actually caused you damage, but you would have to prove unreasonable noise, that the business caused it, that it disturbed your quiet enjoyment of your home, and you have asked them to be quieter but they did nothing.

Answer 3

Your question doesn't specify, but I would encourage you to ensure your measurements are at locations specified by the ordinance. And if the ordinance doesn't specify, that might be a manner by which to make this ordinance look nice on paper, but infeasible to enforce.

In New Jersey, the State has NJAC 7:29 which is the Noise Control Regulation and it is almost never enforced excepting for industrial uses who have sufficient funds to actually comply with it. Per NJAC 7:29, uses cannot generate noise levels in excess of 65 dBA during the day (defined as 7 am to 10 pm) and 50 dBA at night (defined as 10 pm to 7 am). The measure for the daytime is at a residential property line and the nighttime measure is at a residential building footprint.

For a project I worked on recently, just the ambient noise of the nearby highway was enough to notably exceed these thresholds per the team's acoustics consultant. Frankly, a passenger car driving in front of your house would exceed the threshold as it's estimated to be 65 dBA from 50 feet away.

So what can you do? In general, this issue has to be handled by Code Enforcement.

However, be aware, such an issue can be tricky to address for a township. The project I referenced earlier was for a large warehouse project and thus had sufficient funds to conform with the noise ordinance requirements via the construction of some very large sound walls (>$1M). Such an expense is not going to be viable for something like an Applebees. Also, you probably don't want to see a large sound wall instead of people eating dinner. I've never worked on any other jobs which required sound walls, even one that involved a small trucking facility. Municipalities are often loathe to enforce extremely costly mitigation measures like these, even if required by law, as it drives away commercial business.

But the most effective legal option for you might be to just go over and talk to them, ideally with a solution that would be acceptable to you. I say the latter because such a complaint seems rather petty if you could just close your window. Perhaps they could have patrons come inside the building after 10 pm. If there's a house band, perhaps you could ask them to wrap it up at 10 pm.