Anne Arundel County Fish & Game Conservation Ass'n v. Carlucci

KARWACKI, Judge. This case concerns noise resulting from gunfire on the premises of the Anne Arundel County Fish and Game Conservation Association, Inc. (the Club), the appellant. The issue is whether that noise constituted a common law private nuisance to resident owners of properties adjoining the Club, the appellees. The Circuit Court for Anne Arundel County concluded that it did and issued an injunction requiring the Club to design and implement a noise abatement system for all of its facilities.

This appeal ensued. The Facts The Club is located on 39 acres of land off St. Margaret’s Road at the head waters of Mill Creek near Annapolis in Anne Arundel County. Since the Club purchased the property in the early 1950’s, it has operated facilities there for trap and skeet shooting as well as rifle and pistol target ranges. The Club has over 300 members.

When the Club purchased its property, there was relatively little residential development in the area. In recent years, however, that has changed. The real estate surrounding the Club’s premises is now predominantly improved by residences. Several of the appellees described the noise emanating from the Club’s activities.

Michael Darrow testified that in 1987 he completed the home which he shares with his wife, four-year-old son, and infant daughter. He purchased the ¹²⁴ five acres of land on which it is built in 1985 or 1986. His house is located approximately 800 feet from the boundary line between his property and the Club’s land. Darrow related that the gunfire from the Club occurred from 9:00 a.m. until 9:00 p.m. seven days a week, but that it varied rather significantly.

On Wednesday and Friday evenings and all day Saturday and Sunday the gunfire noise was intense. On Mondays it was less annoying, and the quietest days were Tuesdays and Thursdays. He noted that he could hear the gun club’s activities from any place in his house, including the shower with the water running. Furthermore, he could even hear the shooting when his windows were closed.

He testified that he and his family could not use their yard on the weekends because of the excessive noise. The noise frightened his son, and it prevents sleeping, reading, watching television or any other activity which requires concentration. He said that the number of shots could range from 10,000 to 30,000 per day. Dwayne Lynn Thomas, another appellee, testified that he resides on land adjoining the Club premises which he purchased in 1979.

He built a house on the property, and he and his wife occupied their new home in 1987. He stated that he heard gunfire from appellant’s property on Wednesday and Friday nights, all day on Saturdays and Sundays, and occasionally on Mondays, Tuesdays and Thursdays. He testified that when there is shooting at night he cannot go to sleep until after 10:00 p.m., and on weekends he and his wife cannot sleep late in the morning because of the noise. They are unable to use their yard or the patio because of the loud gunfire.

Another appellee, William Hartman, whose house is located approximately 800 feet from the boundary of the Club property, said that he too was unable to use his yard or the deck of his home because of the noise. He further testified that the gunfire could be heard within his house even when the windows and doors are closed. A.B. Bowers, an appellee, testified that he had lived across St. Margaret’s Road from the Club for 21 years. Bowers has related that the gunfire from the Club required him to ¹²⁵ turn up the volume on his television “extra loud” simply to understand what was being said.

Further, he testified that in the summer his wife has to wear earplugs when she is outside their home. Five other appellees similarly testified to the incessant gunfire at the Club and to the interference that the noise caused with enjoyment of their residences. Appellant produced no witnesses who live within the vicinity of the Club and who felt that the noise from the Club’s activities was not a material annoyance. All of the appellees also related the efforts which they had made to persuade the representatives of the Club to modify its gunfire activities.

Their complaints to the police also had not resulted in any relief. In seeking reversal of the judgment of the trial court, appellant contends: I. Appellant Gun Club’s Activities are Exempt from State Noise Regulations as a “Sporting Event.” II. The Court Erred in Adopting the Results of “Fast” Mode Testing of Noise Levels from the Gun Club Premises.

III

The Court Erred in Determining that a Private Nuisance Existed.

IV

The Restrictions Imposed by the Court Were not Reasonably Related to the Evidence. I. Appellant argues that, since it is not subject to the noise restrictions imposed by regulations adopted by the Department of the Environment, its activities cannot be enjoined as a private nuisance. We disagree. We observe, initially, that there is a question, which we need not resolve in the instant case, as to whether a gun club such as appellant is exempted from the regulations in question.

Under Environment Code Ann., Title 3, the Department of Environment has been charged with promulgating regulations which limit noise. That department is also authorized to enforce its regulations by instituting an action ¹²⁶ against anyone who willfully violates the noise control limitations to enjoin the violations, Environment Code Ann., § 3-405, or to seek the civil penalty provided by Environment Code Ann., § 3-406. Significantly, the General Assembly has exempted shooting sports clubs from the reach of noise regulations in some counties of the State; however, Anne Arundel County is expressly excluded from that exemption. Environment Code Ann., § 3-^401 (c)(5). 1 The regulations adopted by the department to control noise pollution are codified in COMAR 26.02.03.01 through .05.

The maximum allowable noise levels affecting land, measured at its boundary, are set forth at COMAR 26.02.03.03 § A(l): TABLE 2 Maximum Allowable Noise Levels (dBA) for Receiving Land Use Categories Effective Day/Night Industrial Commercial Residential Date Upon Adoption Day 75 67 65 Night 75 62 55 2 That regulation further provides: (3) A person may not cause or permit the emission of prominent discrete tones and periodic noises which exceed ¹²⁷ a level which is 5 dBA lower than the applicable level listed in Table 2. Exempted from application of the regulation is: (j) Sound not electronically amplified created by sporting, amusement, and entertainment events and other public gatherings operating according to terms and conditions of the appropriate local jurisdictional body. This includes but is not limited to athletic contests, amusement parks, carnivals, fairgrounds, sanctioned auto racing facilities, parades, and public celebrations. This exemption only applies between the hours of 7 a.m. and 12 midnight.

Even assuming that appellant qualifies for an exemption under this regulation because its activities constitute “sporting, amusement, and entertainment events,” however, this exemption would not bar appellees, who reside in a residential district, from seeking equitable relief from a nuisance created by appellant. Meadowbrook Swimming Club, Inc. v. Albert, 173 Md. 641, 645 , 197 A. 146 (1938). See also 58 Am.Jur.2d Nuisances § 467 (1989).

II

Appellant’s next contention involves the expert testimony produced by both appellant and appellees as to the measurement of the noise received from appellant’s activities at certain of the appellees’ properties. There are three different modes which can be used for taking sound measurements with a sound level meter: fast, impulse, and slow. The fast mode reports sound levels five ¹²⁸ decibels higher than the slow mode. The impulse mode produces readings somewhere in between.

Appellees’ expert, George Spano (Spano), testified that he had made his measurements on three separate occasions over a period of four months on certain of the appellees’ properties using the fast mode. Explaining his decision to use fast mode, Spano testified that gunfire noise is a “periodic” noise, a noise which has a rapid repetitive on-and-off characteristic. If he had used slow mode, he explained, he would have averaged part of the sound which is not pertinent when measuring noise from gunfire. Spano pointed out that the slow mode of measurement employed by appellant’s expert in effect averaged the sound for the entire period during which the sound level measurements were taken, lowering the actual peak sound from any individual gunfire shot.

Using the fast mode, by contrast, gives a measurement of the gunfire noise without adding in some of the lower ambient noise, and thus, it would not dilute the maximum level as the slow mode would. Fast mode averages th.e sound over lk of a second; slow mode averages in all of the ambient background noise over one second. Furthermore, fast mode is better than the slow mode in more closely duplicating the receiving qualities of the human ear. According to Spano’s measurements, the Club’s daytime activities were at levels higher than the 65 decibel limit set by noise regulations of the Department of the Environment.

Prior to and after taking each measurement, Spano calibrated his equipment in accord with precision measurement procedure. While the sound level meter itself had not been returned to the factory for calibration, the calibrator which Spano employed had been so checked within a year before these particular tests. Further, Spano admitted that his readings were not from a machine printout at the time of measurement, but were based on his observations of a fluctuating needle on the sound meter. Appellant’s expert, Richard C. Whiting (Whiting), testified that his measurements, taken on two occasions by slow mode testing, produced levels which were in several cases in ¹²⁹ excess of 65 dBA which “causes concern.” He acknowledged that the Club would want to get the daytime noise level down below 65.

Further, he admitted that Spano had attempted to find out what the maximum decibel levels were at any given