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No Legal Recourse

In 1930 the first Noise Abatement Commission in the United States, appointed by the New York City Health Department, filed a report that has become a classic. It could be republished today with only a few minor changes, like substituting jets and air conditioners for street cars and ice deliveries. Its description of the problem and suggested solutions are just as timely today as they were four decades ago, proof that commissions are just paper tigers without government commitment backing them up.

An anti-noise committee established by New York’s Mayor Robert F. Wagner in 1955, and sponsored by the NYC Department of Commerce and Public Events, conducted its own noise poll (see Table 2). Comparing its results with those of 1930, the 1955 Committee concluded: “In three decades little has changed except the order of priority.” Today in 1970 the public still complains about virtually the same noises. We still have acoustic laissez-faire.

Table 2

The Noises That Won’t Go Away: Public Surveys of Most Annoying Sounds–New York City

In Order of Priority

1956*	1926**
1. Refuse collection	1. Trucks
2. Hornblowing	2. Automobile horns
3. Acceleration of motors	3. Radios
4. Blaring of radio and TV sets	4. Elevated trains
5. Aircraft noise	5. Automobile brakes and cutouts
6. Unmuffled exhausts	6. Garbage collections
7. Street repairs	7. Street cars
8. Sound trucks	8. Fire Department sirens
9. Construction riveting	9. Noisy parties and entertainment
10. Doormen’s whistles	10. Milk and ice deliveries

* Conducted in cooperation with the New York World Telegram and Sun. The list was printed as a coupon in the newspaper. Categories for the list were taken from letters and telephone calls received by the Committee.

** Adapted to conform to the categories used by the Committee for a Quiet City, Inc. Other noises voted most annoying in 1926 included riveting, dogs and cats, horse-drawn trucks, pneumatic drills, and traffic whistles.

Source: Final Report and Recommendations of the Committee for a Quiet City, Inc., July 7, 1960.

The Constitution sets safeguards for the sanctity of a man’s home from unlawful invasion. These safeguards do not apply to noise, and the right to privacy is one of the sacrifices we make for the benefits of speed and convenience.

When it comes to noise assault the city dweller is disenfranchised. Judges consistently have ruled that when one agrees to live in a city he agrees to accept any and all noise that goes with city living. This makes a joke of the Quiet Enjoyment clause found in apartment house leases, “…the Tenant shall quietly enjoy the leased premises.” Today’s noises have deleted this clause as effectively as if it were xx’d out and initialed by landlord and tenant.

In most cases, you can’t sue. You don’t even have the right to stop the overhead neighbor’s son from pounding away with a full complement of drums and amplified rock’n’roll instruments. When his $400-a-month tenants threatened to move out, one Manhattan landlord tried to evict a young drummer’s family. The judge ruled: “While the court can sympathize with the neighbors who may be annoyed by the sound of the drums, that is the price they must pay to live in a city apartment.” He referred to children learning to make music as some of the more civilized sounds of life.

The Industrial Revolution gave business and industry great power–including the right to pollute, the right of the machine to be as noisy as it is today. This state of things typically means that the maker of machines is free to choose his design goals, and must not be pressured by laws or ordinances to spend time or money for quiet.

Society seems to look upon any degree of excessive noise as it now regards pornography–if it contains a modicum of social value, it is not obscene.

For example, most cities do not regulate the noise levels of air conditioners. As long as the apparatus is operating properly, judges will not recognize a noisy air conditioner as a nuisance. In a precedent-setting case, one court ruled that an air conditioner is a product of man’s search for improved comfort and enjoyment, and the fact that it may cause some annoyance to others does not justify denouncing its use as criminal.

Certain magic words can ward off any meaningful regulation. These words are: socially useful, temporary, and mobile. Many communities have adopted the model anti-noise code recommended by the National Institute of Municipal Law Officers. Written to cover “unnecessary and unreasonable” noise, it is a license to pollute. Here is part of the “preamble” to New York City’s “model” anti-noise ordinance:

“Unnecessary noises: Prohibited. a. Subject to the provisions of this section, the creation of any unreasonably loud, disturbing, and unnecessary noise is prohibited…”

That word unnecessary is the fly in the ointment. It is not interpreted as meaning capable of being designed to make less noise, or capable of being muffled. An unnecessary noise is a noise without social utility. Dog barking and promiscuous use of the auto horn are deemed to be without social utility. Construction noise is the result of a socially useful activity, and therefore free from restraint.

Daytime construction noise is specifically exempt from regulation. All municipalities that have adopted the model code contain a clause similar to this one, found in the New York City Administrative Code, prohibiting “the erection, including excavating, demolition, alteration or repair of any building other than between seven ante meridian and six post meridian on weekdays, except in case of urgent necessity in the interest of public safety and then only with a permit from the commissioner of buildings, which permit may be renewed for a period of three days or less while the emergency continues.”

This is acoustic anarchy with a vengeance. Any degree of construction noise can be legally maintained from 7:00 A.M. to 6:00 P.M. (and through the night with an easily obtained permit), six days a week (and Sunday by permit), week in and week out for many months and years. It is noise legally defined as temporary and necessary and thus excluded from the laws of nuisance.

It is, for example, the intense noise generated by giant portable air compressors that force-feed the jackhammers with enough pressure to enable them to slug away with 1,100 80-pounds-per-square-inch blows per minute, while exuding waste energy to the tune of 105 or more decibels. It is noise made by the giraffe-like pneumatic rock drills employed to drill holes for dynamite charges. It is the incredible noise made by another pneumatic tool, the tamper or compactor used to beat down the soil or for subsurfacing. One model, the “Jumping-Jack,” delivers a 1,000-pound sock at the rate of 350 to 700 blows per minute. Its cousin, heavyweight “Wallopin’ Whale,” delivers 3,400- to 6,000-pound blows at the rate of 1,500 to 2,000 per minute. Construction equipment is not designed for human compatibility.

Not only do the air compressors and jackhammers not have to be muffled, neither do the cranes, bulldozers, or transit cement mixers.

Existing ordinances permit daytime mayhem, and do little to protect sleep. If a businessman or a contractor makes a good case for nighttime work, claiming inconvenience or loss of money if he must restrict his operation to daytime hours, city officials can permit such extended activities.

The city has the authority to permit highway and building demolition and construction work at any hour of the night. This permission is granted in Memphis, supposedly the most noise-conscious city in the United States, if the contractor claims he will suffer “loss or inconvenience” if restricted to the daylight hours of 7:00 A.M. to 6:00 P.M., and if the chief building inspector determines that “the public health and safety will not be impaired.”

Municipal governments could protect their citizens via their licensing power. Private garbage carters are licensed by the cities in which they operate. Silenced operations could be a licensing prerequisite, or at least, unsilenced garbage trucks could be issued licenses that deny them the right to operate after 11:00 P.M. But instead of requiring silenced garbage trucks and quiet garbage receptacles, the New York City Department of Licenses sent out this ineffective regulation:

NOTICE TO THE CARTING INDUSTRY

Numerous noise complaints are received daily by this Department with regard to carting activities between the hours of 11:00 P.M. and 7:00 AM.

We are aware of the problems involved in restricting carting service to the daytime hours. You are, therefore, directed to eliminate all disturbing noise during the hours of 11:00 P.M. and 7:00 A.M. This includes:

Loud and boisterous discussion

Banging of pails and covers

Grinding of noisy compaction machinery

The health and welfare of the residents of this City are the prime consideration of this department at all times.

Failure to heed this directive will result in an order for all cartmen not to operate during these restricted hours.

The Department knows full well that today’s garbage trucks are 100-decibel noisemakers. This type of regulation is nothing but window dressing.

Since there are no protective ordinances or regulations allowing at least an extra hour of sleep, let us say to 8:00 A.M., political influence is helpful. When a Cambridge student was awakened at 7:00 A.M. by the grinding of an English “dust lorry” plus the dustman’s off-key rendition of “0, Come All Ye Faithful,” he got corrective action. The dustman was instructed not to pick up until 8:00 A.M. The student happened to be Prince Charles.

New York’s Greenwich Village residents, who have fought coffeehouse noise unsuccessfully will appreciate Miami’s answer to similar noise emissions. Its city code prohibits “between the hours of 11:00 P.M. and 7:00 A.M. music, singing or other forms of entertainment in any room where beer, wine, liquor or alcoholic beverages are sold or offered for sale, indoors or outdoors, unless such room is soundproofed in order that the noise therefrom may not disrupt the peace and quiet of the neighborhood…”

This requirement–that a place of amusement keep its noise to itself–is so sensible, yet few communities avail themselves of it.

Society exempts noisemaking activities that come under the category of “temporary.” Unfortunately for the public, construction noise falls into this category.

The noise experts omitted construction noise from a 1967 symposium on noise sponsored by the Acoustical Society of America because, explained the Chairman of its Noise Technical Committee, “construction noise is temporary.”

“Temporary” can be one, two, five years, or more.

Life, too, is temporary.

There is an irrational double standard that applies to fixed installations such as factories. Noise created inside factories is sometimes limited by zoning laws, but mobile “factories” such as garbage trucks, fuel trucks that pump oil into homes, refrigerated trucks, are not covered by decibel limitations even though the noise they generate affects residential areas much more directly. “Objectionable industrial noise,” reported the American Society of Planning Officials, designers of the performance standards for zoning codes, “is overwhelmingly due to traffic and transportation noises–trucks coming from and going to the plant, steam locomotives puffing and diesel engines thundering, box cars switching and gondolas banging, thousands of self-propelled employees changing shifts. The chance of controlling this type of noise through a performance standard on noise generation is not good.” It is conceivable that a community zoning code would control the noise of rockets being built inside a factory, but would exempt the noise of rocket engine tests if the testing occurred outside the plant.

Zoning laws, in their failure to cover aircraft operations and construction noise, are indeed limited in effectiveness. “Mobile industries seem to consider themselves privileged as far as noise is concerned,” complains Jim Botsford, who is Bethlehem Steel’s Noise Control Engineer. “They argue they are vital to the economy and the public interest. [But they are] no more so than many industries fixed to real estate…There is no valid reason why local business should be required to ‘shut up or shut down’ at night while trucks and airplanes are allowed to roar through until dawn.”

The noise-harassed citizen is not even permitted the essential of quiet living space. The misconception that a decent acoustic environment is a luxury rather than a necessity and a human right, plus greed and the pressure of competition, encourage the builder to ignore noise insulation. In the United States there is no national code for dwelling sound control. Though such codes could be found in Europe as early as 1938, not until New York City adopted one in 1968 did a single American municipality have a building code with noise control provisions.

Since the New York code will probably be “sold” to other municipalities, it is important to understand its weaknesses.

The decibel key to a building code is a combination of three standards. The Sound Transmission Class (STC) measures the ability of the wall to keep out sound. The Impact Noise Rating (INR) describes the ability of the floor/ceiling construction to keep out sound. The Noise Criteria (NC) specify permissible sound levels in unoccupied rooms, setting limits on noises from mechanical equipment outside of the rooms, such as air conditioning, ventilating, and heating systems.

According to noise control specialist Martin Hirschorn, New York City’s proposed rating for walls is below the lowest standard reported in Europe.*

Another acoustical consultant, who specified what New York City should have for floor/ceiling ratings, told the American Carpet Institute: “Impact Noise Ratings of -2 to +4 have been specified as minimum requirements for multifamily dwellings. These should not be considered as ‘design criteria.’ It has been our experience that ratings on the order of +10 to +15 must be obtained for a reasonable degree of tenant satisfaction.” By “reasonable,” he said he meant 75 to 90 per cent. New York’s INR of “0” can mean that perhaps 75 per cent of the tenants will not be satisfied.

The noise level from continuously running mechanical equipment permitted by the code is NC 40. Hirschorn told the City Council that the American Society of Heating, Refrigerating and Air-Conditioning Engineers (ASHRAE) listed NC 40 as a recommended average criterion for “halls, corridors, lobbies, laboratories, general open offices, general banking areas, restaurants, nightclubs, clothing stores, bowling alleys, gymnasiums.” Said he: “A man coming home from work is surely entitled to something a little quieter. The basis of this code is the assumption that an NC 40 is acceptable to the majority of people living in city apartments; this is an incorrect assumption and, in effect, would legislate noisier apartments than we have now in this city…When no standard existed he (the tenant) could complain about excessive noise…Now the builders… would presumably have no need to modify their installation if they met the provisions of the proposed law, even though their acoustical performance might be highly disturbing to a large number of people.”

The late Senator Robert F. Kennedy was concerned about the flaws in this proposed code because he realized it could become the model for city governments throughout the nation. He wrote the City Council: “…Passage of the code, as presently written, does not go nearly far enough towards preserving some form of peace and quiet in our cities…”

“…Provisions ought to exist for improving windows and insulation to provide for the same sound attenuation from the outside as exists between apartments. Criteria ought to be set for regulating noise within schools and hospitals as well…”

This code permits noise intrusion from hallways, lobbies, and similar areas. There is no provision for the noise rating of appliances used within an apartment, the built-in appliances such as dishwashers, no provision for quiet toilets.

After waiting almost three decades, why didn’t one of the world’s noisiest cities adopt a more stringent code? To spare the real estate industry? Perhaps, but the professed reason for the poor decibel standards involves a bit of acoustic magic, the conversion of a most disturbing noise–the noise of passing motor vehicle traffic–into beneficial noise.

Here’s how the code’s acoustical consultant explained the low standards:

“These minimum standards have been selected with the knowledge that the apartment buildings will be located in areas of density and traffic conditions…where normal ambient noise levels generated by concentrated vehicle activity and high density occupancy will provide beneficial masking of intruding speech signals and other noises.”

It is difficult to say who is responsible for this acoustic doublethink–private industry or government. But the FHA supports this “beneficial masking” concept for dwelling design:

“We must distinguish between two types of noise. The first is the ambient noise environment, the quiet, neutral, background noise from flowing traffic or air-conditioning equipment to which we rapidly become accustomed and soon do not notice at all [sic]. This background noise is an exceedingly important element in all noise control situations for it helps to mask the sporadic intruding sounds. For example, an intruding noise which would be intolerable in a quiet country village might go completely unnoticed in an apartment or a busy street, where the continuous hum of traffic masks out the noises from next door without itself seeming unpleasant.”

The harsh fact about any anti-noise legislation is that in order not to be attacked as “unreasonable” or “unrealistic,” the decibel limits must be acceptable to commerce and industry.

Unless the law has provision for improvement with time, all decibel legislation does is freeze an intolerable noise level in perpetuity. Three years after enactment of the New York State motor vehicle decibel limit in 1965, the problem was as acute as ever. After a meeting of the state’s Department of Transportation and its Thruway Authority with the Thruway Noise Abatement Committee, a publicity release was issued from the Governor’s Executive Chamber. The only new abatement measure mentioned was a review of the plan to plant trees and shrubbery along the right-of-way in an attempt to muffle the traffic noise. Hundreds of feet of dense plantings would be necessary to provide any degree of significant reduction. The highway bisects many residential areas, leaving little or no space for such plantings. Nothing was said about requiring Detroit to lower its emission level.

Even as concern for environmental quality is adopted as Federal policy,** there is little evidence that excessive noise will be taken seriously. It is Utopian to expect strict legislation against noise because it is ugly or uncomfortable. True, until the lobby for junkyards and billboards proved more powerful than the lobby for aesthetics, Congress did make a try at highway beautification. Why not money for “acoustic beauty”? Why not, indeed. There is a world of economic difference between getting a manufacturer to landscape his factory grounds and provide litter baskets, and getting him to design and re-tool for quieter appliances. Politicians will never ban helicopters and STOLcraft from the center of the city because they are unattractive, or because they make unmusical sounds.

So rare is the interest in the noise problem that as a freshman Congressman, Theodore Kupferman made national news when he first introduced a bill calling for an Office of Noise Abatement. However, several years of active nationwide campaigning netted him little more than the support of some 50 colleagues, and his bill remained in the House Commerce Committee, burial ground of all noise bills.

Neglect is the theme of a shocking document–“Noise: Sound Without Value”–prepared by the Federal Council for Science and Technology and released in 1968. This report tells in detail how the administrative branch of the Federal government is aware of the growing seriousness of unregulated noise. It then documents how all that is lacking is a policy, authorization, budget, research facilities, and a coordinating noise abatement program.

Not only does society not regulate the most serious noises in the environment, it does not design that environment to provide a buffer between permanent noise sources and the public. Noise is seldom mentioned in the conferences of planners, and an expert committee of the World Health Organization has had to urge metropolitan planners to cooperate with environmental health personnel to create environments with reduced noise and vibration.

“There is no evidence,” states Canadian government noise researcher George Thiessen, “that traffic noise has had any appreciable influence on decisions made in the field of planning.” Homes are built on top of busy highways, and even hospitals are not shielded from traffic noise. It was not until 1967 that the Federal government started even to consider potential noise radiation in routing the 2,500 miles of urban highway that are still to be built for the interstate highway system.

Our lives are excessively noisy because not only do city planners tend to ignore surface noise, they totally ignore noise from the sky. Though the airplane is the chief culprit, airport design and operation are important factors in the jet noise problem. Yet the airport operator is usually free of any restraints.

It is somewhat behind the times to plan for green belts as buffers from noisy factories, while leaving the residential areas the buffers are supposed to protect exposed to overhead noise from aviation.

It is not “natural” for machines to make noise, but without any incentive to do otherwise, industry assembles its machines–and buildings–to meet the more obviously rewarding goals of style (something that can be sold) and economy.

Poorly designed gears, imperfectly designed and installed bearings, improperly designed air flow used to cool rotating parts–these are some of the “unnatural” reasons mechanized products produce noise. To add acoustic insult to industrial tightfistedness, light-weight metal has been substituted for enclosures made of heavy cast iron. These light-weight covers are “excited” by the poorly balanced, poorly insulated motors of dishwashers and air compressors alike, and in turn vibrate and generate additional noise.

Without legal restraints, air conditioners provide thermal comfort at the cost of acoustic discomfort. Without regulation, our subways climb above 90 decibels, as noisy as heavy trucks at 20 feet and train whistles at 500 feet. Subway noise complaints are as much a part of American life as apple pie and Girl Scout cookies. And though Americans hear little about railroad noise these days, Canadian experts describe railroad trains as the noisiest form of surface transportation.

Acoustic anarchy is the only description for motor vehicle operation. In the United States there are neither national regulations nor national guidelines for what is patently a problem of interstate commerce. Only two states, New York and California, have adopted decibel limits, in both cases too high. A handful of North American cities have specified noise maxima, but these are either too high or of doubtful legality. Milwaukee, which is often cited for its excellent decibel law, had as a matter of record to rescind its ordinance in 1957, because its Municipal Court ruled that the use of decibel meters was unconstitutional. Toronto enacted a decibel law which held up in the courts, but because of a technicality, enforcement was restricted to one, and only one, sound-measuring instrument. Hampered by this restriction, Toronto police use the traditional guide of “unreasonable noise” as an enforcement basis.

Famous for enforcing its motor vehicle muffler and horn laws, Memphis does not have an ordinance concerning the use of the sound meter; however, the city court judges have accepted the police department’s criteria of 90 decibels for automobiles and 100 decibels for trucks. The permitted noise levels are so high, judges need have no qualms the noisemakers would be unable to meet them easily.

The absence of effective standards allows 40 per cent of the trucks on New York’s highways to generate excessive noise. More than 50 per cent of the trucks in the midtown New York City area were reported by an acoustician to have noisy engines and poor mufflers.

Not only does society permit inadequate muffling of motor vehicles, it totally ignores the other sources of automotive noise. General Motors publishes a silencing manual for the guidance of purchasers of its trucks and motors. The manual notes that truck operators need concern themselves only with mufflers, since laws do not cover engine noise and other vehicular noise sources.

One of the noise sources ignored by regulations is the auto horn. There are no maximum standards for horn emissions. In France, automobiles are equipped with a Country Horn and a quieter City Horn. In the United States, Chrysler Corp. specifies a limit for its horns: the sound level as measured at 4 inches from the horn shall be at least 125 decibels!

Without insistence on proper design, increase in power becomes synonymous with increase in noise. One reason for the jet noise problem is the escalation from the 12,000-pound-thrust DC-3 to the 41,000 pounds of thrust generated by the subsonic jets. The combined roar of jet exhaust, whine of jet compressors, and sounds of the turbines, generates more than 140 decibels at takeoff. Homes near airports may experience exposures of more than 100 decibels. Community complaints may begin at 90, and explode at 105!

Without people-oriented controls, the best that will happen is a freeze at levels undesirable to begin with, or an insignificant reduction. The airline industry is satisfied that its giant air buses will be no louder, perhaps an insignificant few decibels quieter, than current models. This satisfaction with maintaining the noisy status quo is also found in the air conditioning industry where air conditioner manufacturers are proud to tell the public that new, more powerful units are no noisier than the older, less powerful ones.

Though cities have the major responsibility for noise control, they do not have the authority to control most of the major noise sources. The Federal government, for example, has pre-empted air navigation and air traffic, and any noise limits (other than on the ground) must be set by a Federal agency. When the Village of Cedarhurst, Long Island, adjoining Kennedy Airport, tried to prohibit aircraft flights over itself at heights of less than 1,000 feet, it was overruled in the courts. When the Federal government failed to come up with noise limits, Ralph G. Caso, the Presiding Supervisor of the Town of Hempstead, also next to Kennedy Airport, took a more sophisticated tack. In self-defense against the low overflights from the pattern of takeoffs and landings, an ordinance was enacted that limited aircraft noise to an average level approximately that of trucks at 50 feet. To keep aircraft from being fined, suit was brought in 1963 by the Port of New York Authority, the airlines, and the FAA. Hempstead lost in the Federal courts because, in effect, the town ordinance would restrict the use of the airport and infringe on Federal regulation of air commerce.

If someone ran back and forth over your lawn or dashed through your living room, sometimes once a minute, and at any time of the day or night, you could have him arrested for trespassing. A plane flying twenty feet over your backyard is not trespassing. Not according to law. Trespass has been ruled out because the Supreme Court has said (US. vs. Causby) that land ownership is limited. Until that ruling, the owner of a piece of land acquired “ad coelum” ownership, ownership to the sky. This type of unrestricted ownership has no place in the modern world. Declared the Court, “The airspace apart from the immediate reaches above the land is part of the public domain.” In effect, the airspace over one’s property needed for the takeoff and landing of aircraft is navigable airspace, an aerial highway that cannot be restricted either by an individual or by the community.

If you raise chickens next to an airport, and the overflights are so low and so frequent as to cause your chickens to panic and kill themselves by dashing themselves against the walls of their pens, your constitutional rights have been denied–also by ruling in the case of US. vs. Causby. You can’t get the planes to make less noise or fly higher or elsewhere. You can, however, be reimbursed for the dead chickens. You must then go and raise your chickens somewhere else. One farmer whose wife was given headaches because of low and frequent overflights, went to court and won damages to cover the cost of the aspirins.

It’s not absolutely necessary to own chickens. If your home is made untenable because of low and frequent flights and you can prove a reduction in property values, you can sometimes win damages. But you may have to move to prove that your home is unlivable.

It is a sad commentary on our way of life that the signs of a successful airport operation are the abandoned homes and schools that surround the facility.

Health agencies have shown little or no concern for environmental noise. As a consequence, most municipal and state health departments–including that of the largest city in the United States–have neither the authority, the equipment, nor the personnel to cope with the noise problem.

Yet the typical municipal anti-noise ordinance contains this type of statement: “Noise of such character, intensity, and duration as to be detrimental to the life or health of any individual is prohibited.”

This would seem to place abatement in the hands of the health department. Not necessarily. As in other areas of bureaucratic concern, buckpassing is the rule of the day. Consider the following:

On April 26, 1965, without any advance warning, my doorbell rang, and I admitted a cherubic Health Inspector, Mr. B. He told me he was especially qualified to listen to noise complaints, because he had once written a term paper on noise, and on weekends he moonlighted as a musician. “I am interested in noise because I am a musician,” he said. “I personally recognize noise as a health problem or I wouldn’t be here.” I could have wept for joy at meeting my first sympathetic official.

Mr. B. listened attentively, as–shouting into his ear to make myself heard over the noise from the construction site below my windows–I suggested the TA be told a health problem existed, that muffling was necessary, or at least some reduction of the operating time of nine hours. Although he told me that the Health Department could not pressure another government agency, it just wasn’t done, he smilingly promised some kind of action, and disappeared into the bureaucratic maze.

Three months later, two more Health Department inspectors appeared, listened stolidly, and disappeared. They were not musicians.

After waiting a week or so, I called the Health Department. I was curious. I wanted to know what, if anything, was happening, and what instrument that first inspector played. Whoever I talked to told me nothing could be done about my problem. He then complained bitterly of construction noise outside the Health Department building. Not only that, he told me sadly, but he hadn’t been sleeping at night because of heavy trucks passing under the windows of his Third Avenue apartment. Automatically switching roles, I promised I’d see what I could do for him, and hung up. I was getting to feel sorry for the members of the Health Department, working in such a noisy city.

Four months later, one of the brass in the Sanitary Section of the Health Department told me the Department is concerned and could act under the Administrative Code’s anti-noise section, or under the Sanitary Code’s nuisance provision. But my joy was short-lived, because he said regretfully that since construction noise was exempt from the ordinance, I would have to go to court and have a judge hang the label “nuisance” on the air compressors and the rest of the construction apparatus.

One day, the Health Department musician mysteriously reappeared. This time he came in response to my complaint about the operation of a noisy hoist engine, one of two on the site of a new office building being erected just a stone’s throw away from my apartment. He heard the gadget’s piercing whine, agreed it was a nuisance, and said he would so notify his superiors and the contractor. He left me in uplifted spirits, this time never to return. But not until he ended one frustration, and told me it was the violin he played.

Ten days later a staff member of the Health Department informed me, by telephone, that noise nuisance is no concern of that Department. Seven days later this man’s superior informed me the Department did have an interest in noise, and there would be followup action. On one condition: the motor operating the hoist must be defective.

On February 11, 1966, my Health Department contact phoned to tell me that one of the two hoist engines was noisier than the other. My hopes were quickly dashed, though, when he added the information that although noisier, it was ruled not a nuisance. However, the Health Department, in a touching gesture of humaneness, did ask the operator to try to quiet the noisier engine. On March 11 this same contact informed me that the Corporation Counsel had cautioned the Health Department to go easy on noise nuisance because of a lack of standards. Also, one of the inspectors who had visited my apartment and the site had reported that in his opinion no nuisance existed.

I did find out that in 1959 the New York City Health Department had transferred all but one reference to noise from the Sanitary Code to the Administrative Code, to be enforced by the Police Department. “Too many complaints,” was the reason I was given. No wonder the Health Department could tell me: “One thousand complaints about noise mean nothing to us. We will help you only if you take your complaint to court and the judge rules it is a nuisance. It’s up to the judge to say what’s a nuisance, not the Health Department.”

Is it entirely fair to criticize agencies such as the Transit Authority and the FAA for ignoring the public’s well-being when health officials do the same? Men who run transportation agencies are not physicians, sociologists, or ecologists. They think primarily in terms of getting things done at the lowest possible cost to their interests. But the commissioner of health in a large city is a man with a wealth of training and experience in medicine and/or preventive medicine.

Health departments came into existence after cholera had killed so many people that the public became aroused. There were no scientific standards 100 years ago, just some commonsense working standards which gave the public health people the power to act without waiting for proof of harm. Today’s health departments are content to cope with impure milk and communicable diseases. The only damage to health acknowledged by city health departments is hearing loss experienced after long years of exposure to industrial noise levels. This unrealistic view comes from defining the effect of twentieth-century noise in terms of nineteenth-century medicine.

State health departments are no better. When I exhausted my attempts to get any action from the city health department, I tried some state health departments and found the same neglect. For example, when in 1963 New Jerseyites complained about noise of industrial plants, commercial air conditioners, truck terminals, railroad freight yards and airports, citing interference with sleep, with eating, and “life in general was made miserable,” the State Health Department took the position that, “Evaluated against today’s standards, these noises are not health hazards. They do not directly produce disease.” Perhaps not directly, but how about indirectly?

As for the U.S. Public Health Service, even as late as 1970 it had no community noise program, no guidelines to offer, not even funds for thorough noise surveys.

A point about noise as a nuisance. The San Francisco police, and police of other cities, will arrest prostitutes as nuisances. Nuisance is defined as “something injurious to the health” and “offensive to the senses.” The spirochete and the gonococcus can be seen under the microscope; therefore they exist. The decibel is invisible. A prostitute offends the community’s sensitivities; the raucous truck, the jet, and the jackhammer do not.

Individuals complaining about disorderly or noisy neighbors frequently find the police indifferent to their complaints. But it is not only the law–both common and statutory–that contributes to the current state of acoustic anarchy; it is the attitude of the courts as well. Just as judges are reluctant to convict for disorderly conduct under the Penal Code, they seem reluctant to convict for any type of noise offense.

It would have been a waste of time to seek a court ruling that the subway project was a nuisance, for another reason. Since the ordinance makes an exception of construction noise, to ask for a ruling of nuisance would be asking a judge to disregard the exemption. Courts are reluctant to take the lead in noise abatement. Though liberal lawyers have argued that the courts have a responsibility to protect the public from noise assault, some jurists reply that it is not for the courts to supplant legislators. “The community must have adequate laws and regulations,” they contend, “and not depend upon the courts to act as substitutes.”

It is possible that higher courts might take a more progressive view of noise nuisance. But very few noise cases get to be judged on substance. Most, because of lack of funds for appeals, are blocked on legal technicalities by the court of first jurisdiction.

As far as the effectiveness of common law to control noise is concerned, one cannot but agree with the conclusion of David Watts, a New York University law student who wrote a paper on noise and the law: “It is obvious that nuisance law does not adequately cope with noise. Therefore it is appropriate to consider the use of anti-noise ordinances.” But, as we have seen, the anti-noise ordinances exonerate the major noise nuisances.

New York City’s Police Commissioner Howard Leary gave me the official legal philosophy adopted by his Department in enforcing existing noise restrictions:

It is generally agreed that in noise abatement cases, the courts have concluded that each person must put up with a certain amount of annoyance, inconvenience and interference. In addition, the courts have ruled that in determining the amount of annoyance, inconvenience and interference that must be tolerated, the gravity of the harm to the complainant should be weighed against the utility of the conduct of his troublesome neighbor.

Since not all noisy acts are listed in ordinances, police must judge if an act unspecified by their town’s law is a violation. If they are familiar with the “gravity-vs.-utility” doctrine, they are not likely to proceed against a noise that they do not believe is detrimental to health and life. Since the only recognized health damage is hearing loss from years of industrial-type exposure, it is not surprising that police do not get excited about noise in the community.

Discussing a nighttime utility jackhammer complaint, one desk sergeant put it this way: “So I send a car and the men ask to see a permit. The crew says they forgot it. We check the next night, and it’s a new crew. So what if we give a summons? The penalty is so small that it means nothing to the utility. Most judges throw these cases out anyway.”

Reluctance to enforce the ban on promiscuous horn blowing is blamed on the strict laws of evidence. A New York policeman explained to me: “If I give a summons and go to court, where I may have to spend a whole day, the judge asks the guy if he blew his horn unnecessarily. The guy can say he blew it because he thought a cat was crossing the street in front of him. Or the judge can give me the third degree: did I actually see this driver put his pinky on his horn? Did I actually see that horn button or ring depressed? It’s like with prostitutes–the case gets thrown out for lack of evidence.”

One of the most touching excuses for not enforcing a decibel limit for motor vehicles was that given by one English police chief. He felt that enforcing motor vehicle noise laws would deteriorate the relationship between the police and the motoring public!

Legend has it that the gods once drowned man for making too much noise. According to the story, the Babylonian god Eulil, like a minister of justice, prosecuted man for his sins. “The sins of mankind have not decreased, but increased. Their noises have stirred my anger.” The prosecution won its case and the gods decided to drown a noisy mankind–more than 4,000 years before the advent of noisy trucks and jets. Thus the Babylonians explained the Great Flood.

But modern lawmakers, more lenient than those ancient noise abatement gods, let the noisemakers go free. In the eyes of our government we, the public, the people who consume, who produce, who pay the taxes and make the personal sacrifices necessary for our nation’s survival, are not worthy of a quieter city, suburb, farm, school, or hospital. Not if it means disturbing the manufacturer and operator of noisy machines. The problem is not so much how to fight City Hall, but why it should be necessary to fight City Hall in the first place.

* Some control requirements, such as the STC and the NC ratings, will be upgraded as of January 1, 1972.

** The National Environmental Policy Act of 1969. Section 102 of that act requires that Federal agencies report activities which would negatively influence environmental quality.