Is Noise Pollution a Taking?

The Takings Clause
“…nor shall private property be taken for public use, without just compensation.”

The Fifth Amendment of the United States Constitution provides that private property shall not be taken without just compensation. Ultimately, takings issues have ended up in the courts. Case law on this clause has been convoluted and contradictory determining when, where and how a “taking” has occurred and what “just compensation” shall be made. In other words, people including judges have differed, at times strenuously, about takings.

However, it is generally accepted now, with case law in place for airport noise pollution and others, that noise pollution travelling onto a private property is a taking of property value requiring just compensation.

Since 1989, the State of Maine Chapter 375.10 Site of Location Development law scribes “protected location” areas 500 feet in radius from a residential home. In other words the existing State law treads inside private property as far as noise pollution goes. Under Chapter 375.10, if the property dimensions are sufficiently large and the 500 foot radius ends within the property, in the remaining area of the private residential property, the developer is allowed 10 dB higher noise immissions. This “feature” of Chapter 375.10 is at variance with most noise ordinances and regulations in the United States and abroad, which recognize and utilize the property or “lot” line as the legal property boundary for noise limits.

Consider the potential difficulties for a hypothetical property of 10 acres, if for example, the owner decides to allow his son to build at some future date a house on a portion of the land not within the 500 foot radius. (See sketch below-added 9/10/2010 for clarification.) During a permitting process for a new development near this residential property, the noise to be permitted is controlled by distance or engineering to the State standards for the protected location- but outside the 500 foot radius around the existing house, the developer may exceed the State night noise limits, up to 10 dB higher (to the daytime limits which apply around the clock). In this scenario, noise impinging on the father’s house is controlled, but noise impinging on the son’s (future) house could be 10 dB higher. That is allowed under Chapter 375.10. Were the State noise regulation (or local noise ordinance) to be based on a property line limit, as is the case with most noise regulations, noise at the son’s future house would be controlled to night noise limits as well because the developer would have to meet the regulation’s night noise limits everywhere along the property line.

This potential noise pollution issue could apply as well to someone who used their property for a home business (yoga center, writing retreat, and so on), after a nearby development permitting, on some portion of their property outside the 500-foot radius used during the permitting process. The enjoyment or use of the private land could be compromised by excessive sound levels on the portion outside the 500 foot radius around the existing structure.

In effect, this noise permitting feature of Chapter 375.10 has the potential to take future use, enjoyment, or quality of life from a property whole, dependent of course on a number of factors regarding lot size, distance and noise engineering options exercised during a development.

For property rights advocates, of whom there are many in the State of Maine, this little understood feature of the State noise regulation may bring concern. Has the State circumvented the Fifth Amendent’s takings clause? What vulnerability to lawsuit and legal expenses do town officials personally face if they pass a noise ordinance that reaches inside someone’s property and by doing so degrade enjoyment and quality of life; rather than using the property line for noise limits, as is the norm? Are town officials prepared for the financial and emotional costs of legal battle?

There is an additional concern for property owners wishing to sell a portion of their land: it may become impossible to sell once that land is polluted by noise day and night. To whom do they turn to seek just compensation? The developer? The selectmen? The State? And how will they recover their legal costs if they take on such an arduous task as a compensation lawsuit? Are landowners prepared for the financial and emotional costs of legal battle?

These issues stand distinct (well not entirely distinct) from the problem that the Maine Chapter 375.10 noise regulation applies only to some developments (the Wind Facility in Freedom, Maine is a baffling “exemption”). Further, the sound limits in Chapter 375.10 are considered outdated, based on an urban noise pollution issue involving Merrill Transport in Portland, Maine in the late 1980s. The sound limits are inappropriately high for the 98 percent of Maine that is rural, and far too permissive given the comprehensive research on the health effects of noise pollution in the last few years.

It appears towns should think very carefully before adopting the approach voted in by the State Legislature in 1989.