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Stevens v. Matanuska-Susitna Borough (6/23/2006) ap-2051

Stevens v. Matanuska-Susitna Borough (6/23/2006) ap-2051

                             NOTICE
     Memorandum decisions of this court do not create  legal
     precedent.   See  Alaska  Appellate  Rule  214(d)   and
     Paragraph 7 of the Guidelines for Publication of  Court
     of  Appeals Decisions (Court of Appeals Order  No.  3).
     Accordingly, this memorandum decision may not be  cited
     as binding precedent for any proposition of law.

         IN THE COURT OF APPEALS OF THE STATE OF ALASKA


ROBERT STEVENS JR., )
) Court of Appeals Nos. A-9134/9391
Appellant, ) Trial Court Nos. 3PA-04-5255 MO
) 3PA- 05-0001 MO
v. )
) O P I N I O N
MATANUSKA-SUSITNA BOROUGH, )
)
Appellee. )
) No. 2051 - June 23, 2006
Appeal    from    the
          District  Court,  Third  Judicial  District,
          Palmer, William H. Fuld, Judge, and David L.
          Zwink, Magistrate.

          Appearances:   Chadwick  P.  McGrady,    Law
          Office  of  Chadwick McGrady, P.C.,  Palmer,
          for    Appellant.    Nicholas   Spiropoulos,
          Assistant  Borough Attorney, and  Teresa  S.
          Williams,  Borough  Attorney,  Palmer,   for
          Appellee.

          Before:   Coats, Chief Judge, and Mannheimer
          and Stewart, Judges.

          COATS, Chief Judge.
          MANNHEIMER, Judge, concurring.

          This  case  involves a noise ordinance enacted  by  the
Matanuska-Susitna Borough in May 2004 after homeowners complained
that  their  sleep was being disturbed by amplified music  coming
from  the Fish Heads Bar and Grill on the Palmer-Wasilla Highway.
Robert  Stevens Jr. owns that business, which abuts a residential
subdivision.
          Shortly  after the ordinance was enacted,  Stevens  was
cited  twice  for  violating  it.   He  was  convicted  of  those
violations  in October 2004.  Within a week of those convictions,
he  was  cited  five  more times.  A trial  on  those  additional
charges was held in August 2005, and Stevens was convicted of two
more  violations.  Stevens has appealed his convictions  in  both
cases.   We  have consolidated his appeals for purposes  of  this
decision.
          In  general terms, the noise ordinance at issue forbids
amplified noise or vibration during certain hours of the day  and
night  that can be plainly heard or felt on neighboring  property
such  that it disturbs a person of normal sensibilities.  Stevens
has  asked  us to invalidate the ordinance.  He argues  that  the
language  of  the  ordinance is so vague that it  fails  to  give
constitutionally  adequate notice of what conduct  is  prohibited
and so overbroad that it chills free speech.  He also argues that
the Matanuska-Susitna Borough has no authority to regulate noise.
         For  the  reasons explained below, we conclude that  the
noise ordinance survives Stevenss constitutional challenges.   We
also  conclude that Stevens has not met his burden to  show  that
the  Borough  exceeded its statutory authority  in  enacting  the
ordinance.  We therefore affirm Stevenss convictions.

         Facts and proceedings
         Stevens  was  cited  for violating  the  Boroughs  noise
ordinance, MSB 8.52, on Saturday May 22, 2004, at about 1:22 a.m.
and  on Sunday May 23, 2004, at about 2:30 a.m. based on evidence
that his neighbors were disturbed in their homes by the sound  of
amplified bass music emanating from the Fish Heads Bar and Grill.
          On  October 8, 2004, a bench trial was held in district
court  before  Superior Court Judge William  H.  Fuld.   At  that
trial, the Borough presented testimony by Brian Archer, a private
investigator it had hired to do sound surveillance  of  the  Fish
Heads  bar.  Archer testified that on May 22, from 1:14  a.m.  to
2:26  a.m., he stood about 150 yards from the Fish Heads bar,  in
the  adjacent  residential subdivision.  He said that  from  that
location  the  whomp,  whomp sound of amplified  bass  music  was
fairly  consistent throughout that hour.  Archer said he returned
to  the  subdivision on May 23 from 2:15 a.m. to  3:15  a.m.  and
heard  the same bass sound, with only occasional two-minute  gaps
in  the sound. He said he was absolutely positive the sound  came
from  the  Fish  Heads  bar.  However, on  cross-examination,  he
conceded that his tape recorder had not picked up the bass sound,
only the rustling of trees and other neighborhood noises.
          Two  homeowners  in  the subdivision  testified.   Tara
Gibbs  said  that while in her home on May 22-23 from 11:00  p.m.
until  1:30  a.m., when she fell asleep,  she heard a  continuous
thumping  noise from the Fish Heads bar.   She said that  similar
noises  had affected her sleep for the past year.  Dewey  Taylor,
another  neighbor, testified that he heard a thumping noise  from
the  bar on May 23 beginning at about 2:00 a.m., which lasted for
at least an hour and prevented him from sleeping.
          Stevens  testified  in his defense.   He  said  he  had
offered  to  buy  Gibbss and Taylors homes  for  their  appraised
value.   He  also  testified that thump-thump noises  were  often
generated  by  car stereos in his parking lot and when  he  heard
those  noises he asked the drivers to turn their music down.   He
said that prior to the weekend of May 22-23 he had taken steps to
reduce  the  sound  emanating from his bar, including  installing
devices  designed  to monitor and control audio output,  reducing
and  moving the bass speakers, installing more drop panels in the
roof, and adding insulation and heavy steel doors.
          Judge  Fuld  ruled based on this evidence that  Stevens
had  violated  the noise ordinance on both dates.   Stevens  then
filed a motion for reconsideration, attacking the validity of the
ordinance.   He  argued that the ordinance was unconstitutionally
vague; that is, that its terms were so imprecise that it did  not
give   adequate  notice  of  what  conduct  was  prohibited   and
encouraged arbitrary enforcement by Borough officials.   He  also
challenged the ordinance for overbreadth, arguing that the threat
of    criminal   sanctions   would   deter   amplified   campaign
announcements and other protected speech.
          Judge  Fuld  granted  the motion  for  reconsideration.
After  considering the parties supplemental briefing,  he  upheld
the ordinance, finding that it was a reasonable effort to control
obnoxious noise.
          In  October 2004, Stevens was again cited (five  times)
for  violating the ordinance.   Before trial on these violations,
Stevens  moved to dismiss the citations based on the  same  legal
claims  raised  in  his  previous case: that  the  ordinance  was
unconstitutionally vague and overbroad.  He also argued that  the
Borough   had  acted  outside  its  authority  in  enacting   the
ordinance.   District Court Magistrate David L. Zwink denied  the
motions,  ruling that the ordinance was constitutional  and  that
the  Borough had authority to regulate noise under its  land  use
power.   Trial  was held over the course of four days  in  August
2005.   Magistrate Zwink convicted Stevens of  two  of  the  five
charges.
          Stevens appeals his convictions.

          Did  the  Borough  have authority to  enact  the  noise
ordinance?
          The   Matanuska-Susitna  Borough  is   a   second-class
borough.  That means it is a general law municipality that is, it
only  has  those  powers  conferred by statute.1   (A  home  rule
borough or city, by contrast, may exercise all legislative powers
not  prohibited  by law or charter.2)  Stevens  argues  that  the
noise ordinance falls outside the Boroughs enumerated powers.
          All  municipalities,  including second-class  boroughs,
have  general  powers to, among other things, establish  salaries
for  municipal  employees, levy taxes,  enforce  ordinances,  and
acquire  and  dispose of property.3  A second-class  borough  has
certain additional powers conferred by statute, some of which are
mandatory and some of which are discretionary.4
          In   arguing   that  the  Borough  acted  outside   its
          authority in enacting the noise ordinance, Stevens points to AS
29.35.210,  which  lists  the powers second-class  boroughs  have
discretion   to  exercise.   Stevens  argues,  and  the   Borough
concedes,  that  nothing  in  this  statute  gives  the   Borough
discretion  to pass a noise ordinance and that no election  among
voters  in  the  Borough was held to confer  that  discretion  as
authorized in AS 29.35.210(c) and (d).
          Instead,  the  Borough argues that the noise  ordinance
is  a  proper  exercise of its mandatory land use  power.5   More
specifically,  the  Borough   argues  that  AS  29.40.040(a)   in
particular  the  portion italicized below  gave it  authority  to
enact the noise ordinance at issue in this case:
               Land  use regulation. (a) In accordance
          with  a comprehensive plan adopted under  AS
          29.40.030  and  in  order to  implement  the
          plan,  the assembly by ordinance shall adopt
          or  amend provisions governing the  use  and
          occupancy of land that may include, but  are
          not limited to,

               (1)  zoning regulations restricting the
          use  of  land and improvements by geographic
          districts;

               (2)   land   use   permit  requirements
          designed    to   encourage   or   discourage
          specified uses and construction of specified
          structures,   or  to  minimize   unfavorable
          effects  of  uses  and the  construction  of
          structures;

               (3)  measures to further the goals  and
          objectives of the comprehensive plan.[6]
          This  statute  appears  to  authorize  the  Borough  to
control  unwanted  noise  in  at  least  three  ways:  by  zoning
districts; by land use permit requirements; or by other  measures
designed to further the goals and objectives of the comprehensive
plan.
          In  his  briefing before this court, Stevens  does  not
respond  to the Boroughs argument that the noise ordinance  is  a
proper  exercise  of  its areawide land use  power.     Nor  does
Stevens address, or even acknowledge, Magistrate Zwinks ruling in
the  Boroughs favor on this issue.  Because Stevenss briefing  is
inadequate, we do not resolve the question of whether the Borough
acted within its authority in issuing the noise ordinance.7

          Is the noise ordinance unconstitutionally overbroad?
          Stevens  next  argues that the ordinance  impermissibly
chills free speech in violation of the first amendment because it
limits  amplified  noise during too many hours  of  the  day  and
night.
          The Boroughs noise ordinance prohibits the following:
               (A)  Noise  created by  the  operation,
          playing  or  permitting  the  operation   or
          playing  of  any radio, stereo,  television,
               phonograph, loudspeaker, speaker system,
          drum,  musical instruments, sound amplifier,
          or  similar  sound-amplifying  device  which
          produces, reproduces, or amplifies sound  in
          such  a  manner  as  to be  plainly  audible
          outside  the real property boundary  of  the
          property on which the operation, playing, or
          permitting to play occurs for a duration  of
          five  minutes  or  more, and  during  Sunday
          through  Thursday from noon to  4  p.m.  and
          from  10  p.m.  to noon, and on  Friday  and
          Saturday  from noon to 4 p.m.  and  from  11
          p.m.  to  noon,  is a noise disturbance  and
          public nuisance in violation of this code.

               (B)   No person shall operate or permit
          the   operation   of  any   radio,   stereo,
          television, phonograph, loudspeaker, speaker
          system,  drum,  musical  instrument,   sound
          amplifier or similar sound-amplifying device
          that  creates vibration which is  above  the
          vibration   perception   threshold   of   an
          individual  at  or beyond the real  property
          boundary  of  the source of  the  vibration.
          For  purposes  of  this  chapter,  vibration
          perception   threshold  means  the   minimum
          ground or structure-borne vibrational motion
          necessary  to  cause a normal person  to  be
          aware  of the vibration by such direct means
          as,  but not limited to, sensation by  touch
          or  visual  observation of  moving  objects.
          Violation
          of this paragraph constitutes a public nuisance.[8]
          Plainly  audible  noise is defined  as  any  noise  for
which  the  information  content of that noise  is  unambiguously
transferred  to  a  listener,  such  as,  but  not  limited   to,
understanding of spoken speech, comprehension of whether a  voice
is  raised  or  normal,  or comprehension  of  musical  rhythms.9
Noise  disturbance is defined as amplified sound which  endangers
or  injures the safety or health of humans or animals, or  annoys
or  disturbs  a  reasonable  person of normal  sensitivities,  or
endangers  or injures personal or real property.10  The ordinance
exempts sounds generated during certain types of emergencies  and
permitted special events, as well as amplified noises coming from
vehicles moving along public rights-of-way (i.e., car stereos).11
          (The  noise  ordinance could be read to restrict  noise
produced   by   musical  instruments  that  are  not   amplified.
Subsection  A  above,  defining prohibited  acts,  lists  [n]oise
created   by  ...  any  radio,  stereo,  television,  phonograph,
loudspeaker,  speaker  system, drum,  musical  instrument,  sound
amplifier,  or  similar  sound-amplifying  device.    When   this
sentence  is  read  in  isolation, it is  not  obvious  that  the
Assembly  intended the phrase or similar sound-amplifying  device
to  modify  every item in the list, including drums  and  musical
instruments.  The definitions section of the ordinance,  however,
          unambiguously defines a noise disturbance to encompass only
amplified  sound.  Because only amplified sound is  at  issue  in
this case, we need not decide this question.)
          In  Ward  v.  Rock Against Racism,12 the United  States
Supreme Court outlined three factors that courts must consider in
determining  whether  a  time, place, and manner  limitation  the
government  places  on  music violates the first  amendment.  The
first  factor  is  whether the regulation  is  justified  without
reference to the content of the speech.13  The principal  inquiry
in  determining content neutrality, in speech cases generally and
in  time,  place, or manner cases in particular, is  whether  the
government  has  adopted  a  regulation  of  speech  because   of
disagreement with the message it conveys.14  The second  question
is  whether the citys regulation is narrowly tailored to serve  a
significant governmental interest.15  To satisfy this prong,  the
government  need  not  adopt  the  least  restrictive  or   least
intrusive means of protecting its interest, so long as the  means
chosen  are  not substantially broader than necessary to  achieve
the   governments   interest  and  the  regulation   promotes   a
substantial  government  interest that  would  be  achieved  less
effectively  absent  the regulation.16   The  third  question  is
whether the regulation leaves open ample alternative channels  of
communication.   This factor is easily met by a  regulation  that
limits  the  degree of amplification but has  no  effect  on  the
quantity  or  content  of expression.17   We  have  adopted  this
approach   as   a   matter   of   state   constitutional   law.18
Stevens   does  not  claim  that  the  Boroughs  noise  ordinance
regulates   the  content  of  speech  or  precludes  alternative,
quieter,  means  of communication.  His only claim  is  that  the
ordinance  is  broader  than necessary to  achieve  the  Boroughs
interest  in  controlling disturbing amplified noise  because  it
restricts  such  noise for too many hours of the day  and  night.
(Stevens  was convicted of violating the noise ordinance  between
11:00  p.m.  and  5:00 a.m.  However, the only  hours  the  noise
ordinance  restrictions are not in force are from  4:00  p.m.  to
10:00  p.m. during the week, and from 4:00 p.m. to 11:00 p.m.  on
the weekend.19)
          As  the  Supreme Court declared in Ward, the government
has  a substantial interest in protecting citizens from unwelcome
noise,  particularly in the privacy of their homes, and  it  need
not choose the least restrictive means to accomplish that goal.20
Although Stevens asserts that the ordinance is unconstitutionally
restrictive, he offers no basis for finding that the  time-of-day
limitations  which were incorporated into the ordinance following
testimony  at a public hearing  reach substantially more  conduct
than necessary to achieve the Boroughs interest in protecting the
peace  of  its residents.  Stevens has therefore not  established
that the ordinance unduly burdens protected speech.
          Is the noise ordinance unconstitutionally vague?
          Stevenss  next claim is that the ordinance is so  vague
that  it  does  not  give  adequate notice  of  what  conduct  is
prohibited  and  encourages  arbitrary  enforcement  by   Borough
officials.   He argues that a person seeking to comply  with  the
ordinance,  or  to enforce it, can only guess   what  noise  will
annoy  or disturb a reasonable person of normal sensitivities  or
          what vibration will cause a normal person to be aware.21   He
also  argues  that  the ordinance promotes arbitrary  enforcement
because it contains no objective criteria for determining what is
a  violation, thus granting property owners a standardless  sweep
to retaliate against their neighbors.22
          Noise  ordinances  that  rely on  a  purely  subjective
standard  to  determine  what volume  of  noise  is  annoying  or
disturbing  have  generally not passed  constitutional  muster.23
For instance, in Easy Way of Lee County, Inc. v. Lee County,24  a
Florida appellate court struck down as unconstitutionally vague a
portion  of  a noise ordinance that, in effect, prohibited  noise
that  any individual person within the area of audibility happens
to  find  personally  disturbing.25  Likewise,  in  Fratiello  v.
Mancuso,26  a federal court struck down an ordinance that  barred
unnecessary  noises  or sounds ... which are physically  annoying
because the ordinance relied on subjective determinations of what
was  unnecessary  and  annoying.27   And  in  Lutz  v.  City   of
Indianapolis,28  the court of appeals struck  down  as  vague  an
ordinance  that prohibited noise that was unusual or  unnecessary
or  that annoys ... others, observing that the ordinance employed
no reasonableness test for determining what was a violation.29
            The  Boroughs  ordinance does not  suffer  from  this
infirmity; it places specific geographic and time limitations  on
amplified  noise that annoys or disturbs a reasonable  person  of
normal  sensitivities.30   As we have  previously  observed,  [a]
statute  is not vague merely because a fact finder must determine
questions  of  reasonableness.31  In other  jurisdictions,  noise
ordinances   that  incorporate  a  reasonable  person   standard,
expressly  or  implicitly,  have  generally  been  upheld.    For
example,  in  City of Madison v. Baumann32 the Wisconsin  Supreme
Court rejected a vagueness challenge to an ordinance that forbade
making  any noise tending to unreasonably disturb the  peace  and
quiet  of  persons in the vicinity.33  The court found  that  the
word  reasonably  saved  the ordinance from  being  impermissibly
vague.34   The test for a possible violator, the court explained,
is  simply the time honored and time validated reasonable  person
test, i.e., what effect will my conduct  singing or playing  have
upon persons in the vicinity under the circumstances.35
          Likewise  in State v. Garren,36 a North Carolina  court
found  that an ordinance prohibiting loud, raucous and disturbing
noise    which  the  ordinance  defined  as  sound  that  annoys,
disturbs,  injures  or endangers the comfort,  health,  peace  or
safety  of reasonable persons of ordinary sensibilities  provided
a  sufficiently  objective  standard to  guide  conduct.37   Some
courts have gone further and, in rejecting a vagueness challenge,
construed  a  noise  ordinance to contain an  implied  reasonable
person  standard.   In  City of Beaufort v.  Baker,38  the  South
Carolina  Supreme  Court  upheld  the  constitutionality  of   an
ordinance   barring  any  person  from  willfully  disturbing   a
neighborhood or business by making loud and unseemly noises after
construing  loud and unseemly to mean unreasonably  loud  in  the
circumstances.39   So  construed, the court found  the  ordinance
clear enough.  It noted: The objective reasonable test is used in
many  areas of the law as an appropriate determinant of liability
and thus a guide to conduct.40
          In  line  with  this  authority, we conclude  that  the
Boroughs  ordinance provides adequate notice of what  conduct  is
prohibited.    The  ordinance  defines  as  a  prohibited   noise
disturbance amplified noise that is plainly audible across a real
property  boundary  for  five minutes or  more  during  specified
hours.41  A noise disturbance is further defined as, among  other
things,  amplified  noise that annoys or  disturbs  a  reasonable
person  of normal sensitivities.42   In addition, plainly audible
noise  is  defined as noise for which the information content  of
that  noise is unambiguously transferred to a listener, such  as,
but not limited to, understanding of spoken speech, comprehension
of  whether  a  voice  is raised or normal, or  comprehension  of
musical  rhythms.43   Also  forbidden as  a  public  nuisance  is
physical vibration from amplified sound that is perceptible to  a
normal person beyond the real property boundary of the source  of
the   vibration.44   Taken  together,  these  standards   provide
sufficient  notice of what conduct is prohibited to  satisfy  due
process.
          We  further  conclude that Stevens has not  shown  that
the  ordinance  is  so  vague  that it  will  lead  to  arbitrary
enforcement  by  Borough  officials.   Alaska  courts  will   not
invalidate a statute on this ground unless there is evidence of a
history of arbitrary or capricious enforcement or the statute  is
so   conflicting  and  confused  that  arbitrary  enforcement  is
inevitable.45   The ordinance establishes sufficiently  objective
standards  to  guard  against the risk that  Stevens  conjectures
convictions  based on the fabricated testimony of  vindictive  or
hypersensitive neighbors.  Moreover, while Stevens  asserts  that
he   has  been  singled  out   and,  indeed,  the  ordinance  was
apparently enacted because of the noise problems created  by  his
business  he has pointed to no circumstance in which the  Borough
failed  to  enforce the noise ordinance when faced  with  similar
complaints.
          Did  the  Borough violate the discovery rules, and  did
          Judge Fuld err by
          refusing to continue the trial to allow for discovery?
          Stevens  argues that, in his first trial,  he  was  not
provided  with  the discovery he was entitled to  under  Criminal
Rule  16(b) and that Judge Fuld should have granted a continuance
to permit  him to obtain that discovery.
          Stevens was cited for violating the noise ordinance  in
May  2004.   Trial was held almost five months later, in  October
2004.   During  that period, a default judgment was  entered  and
vacated.    For  reasons that are not explained  in  the  record,
Stevens  delayed hiring an attorney until the day  before  trial.
At  trial,  the attorney said he had tried to view  the  Boroughs
exhibits  that morning but had been unsuccessful.   The  attorney
asked for a forty-five day continuance to obtain discovery and to
prepare for trial.  Judge Fuld initially reserved the decision on
whether to grant a continuance.
          Later,  when Stevens renewed his request for discovery,
Judge  Fuld  asked Stevens why he had waited so long  to  request
discovery.  Stevens argued that a letter he wrote to the  Borough
on  May  24,  2004 was in effect a lay request for discovery  and
that  the  Borough had not complied with that request.   Stevenss
attorney read part of the letter to Judge Fuld:
          Has  this ord[i]nance been codified?  Please
          clarify what is [meant by] Fish Heads Bar  &
          Grill  is  in  the core planning  area.   Is
          there  MSB  real  estate  other  than   city
          boundary  that  is  not  affected  by   this
          ord[i]nance? Your comments Fish Heads has  a
          vibration perception above the threshold  of
          a  normal person, please send me expert data
          to  show  this fact.  What is your procedure
          for   determin[ing]   what   is   a   normal
          threshold?  I will need this information  to
          help  me comply with this ord[i]nance.   Has
          this code been enforced anywhere else in the
          Borough?
          Judge  Fuld  responded: All right.  In any  event  this
case has had a trial date for a long time and I dont want to hear
any more argument.  Were going to take testimony now.
            Based  on  this  record, Judge Fuld could  reasonably
have  concluded  that  the  Borough had  committed  no  discovery
violation.   Furthermore, even if the Borough  had  violated  the
discovery  rules, Stevenss claim would fail because he failed  to
show any prejudice.  To justify a continuance, Stevens had to set
forth  a  plausible  way  in  which  his  ...  defense  could  be
prejudiced   by   the   governments  failure   to   make   timely
disclosure.46   The only discovery Stevens claims he  was  denied
was  audio  tapes  made  by the Boroughs  investigator.   As  the
investigator conceded at trial, those audio tapes did not  record
any  amplified  sound   only  the rustling  of  trees  and  other
innocuous  noises.  In convicting Stevens, Judge Fuld noted  that
the  tapes  had  not recorded any bass sound but  concluded  that
testimony  about  the  noise  by  the  investigator  and   nearby
homeowners   had  nevertheless  established  Stevenss  violations
          beyond a reasonable doubt.  Stevens did not explain at trial, nor
has  he  on  appeal,  how he would have benefitted  from  getting
copies   of   these  audio  tapes  before  trial.   Given   these
circumstances,  Judge Fuld acted well within  his  discretion  in
denying Stevens a continuance for the purpose of obtaining  these
tapes.47

          Did  Judge Fuld deprive Stevens of his right to present
a defense?
          Stevens  argues  that Judge Fuld deprived  him  of  his
constitutional  right to present a defense by cutting  short  his
cross-examination of the Boroughs witnesses and by not permitting
him to present all his witnesses.
          During  the  Boroughs  case,  Judge  Fuld  limited  the
examination  of  each  witness to three minutes  for  each  side.
Stevens  raised  no  objection to  this  restriction.   There  is
nothing in the record that suggests that Judge Fuld enforced this
limitation against Stevens or that Stevenss questioning  was  cut
short  because  of  it.   Moreover, on appeal,  Stevens  has  not
explained how he was prejudiced.
          The  record  is equally devoid of support for  Stevenss
claim  that  Judge  Fuld infringed upon his right  to  present  a
defense  by  not  permitting him to present  all  his  witnesses.
After  Stevens testified, Stevenss attorney sought to  call  only
one other witness, Tom Conway.  This discussion followed:
          Court:  For what effect?

          Defense counsel:  Basically because  I  want
          to  introduce  exhibits that show  that  the
          ordinance  that was proposed on  May  3  was
          completely different than the ordinance that
          was passed on May 18 which is contrary. . .

          Court:    Thats  legal  argument,  it   goes
          nothing  to the facts here, you can do  that
          in a motion.

          Defense counsel: Okay.
In  his  motion  for reconsideration, Stevens did not  raise  any
claim  related to this alleged inconsistency between the proposed
and final ordinances.
          Because  Stevens did not object to Judge Fulds  ruling,
he  did not preserve his claim that the court erred in precluding
this  witness.48  Moreover, even if the court had erred,  Stevens
has  not alleged, much less shown, that he was prejudiced by that
error.

          Was  there substantial evidence to support Judge  Fulds
verdict?
          Stevens  argues that there was not substantial evidence
to support his October 2004 convictions because the investigators
tape  recorder  failed  to  record the  complained-of  sound  and
because  Stevens testified that the noise could  have  come  from
vehicles parked in his lot.   In other words, Stevens argues that
if  the evidence is viewed in the light most favorable to him, it
          is insufficient to support his convictions.
          In  reviewing  an  attack  on the  sufficiency  of  the
evidence,  we are required to view the record in the  light  most
favorable  to  upholding the judges verdict.49   Viewed  in  that
light,   there  was  substantial  evidence  to  support  Stevenss
convictions.  Stevens was convicted of generating amplified noise
that was plainly audible and disturbing to his neighbors for more
than   five   minutes  during  prohibited   hours.    A   private
investigator hired by the Borough testified that he stood in  the
residential  subdivision adjacent to the Fish Heads bar  for  one
hour  on each of the early mornings at issue and heard the whomp,
whomp  sound of amplified bass music fairly consistent throughout
that hour. He testified that he was absolutely positive the sound
came  from  the Fish Heads bar.  This report was corroborated  in
part by two residents of the subdivision who testified to hearing
a  repeated  thumping noise from the Fish Heads bar in  the  late
night  and early morning hours that disturbed their sleep.   This
testimony  provided  sufficient relevant evidence  to  support  a
conclusion  by  a  reasonable mind that there was  no  reasonable
doubt as to [the defendants] guilt.50
          Stevens   also   claims  that  there  was  insufficient
evidence  to  support his August 2005 convictions.  However,  his
argument on this issue cites to the transcript of his first trial
in  October  2004.  His claim is therefore waived for  inadequate
briefing.51
          

          Conclusion
          Stevenss convictions are AFFIRMED.
MANNHEIMER, Judge, concurring.

          I  write separately to emphasize that our affirmance of
the  judgements in these cases does not mean that we  agree  with
the Boroughs assertion that the noise ordinance at issue here  is
a   proper  exercise  of  the  Boroughs  land  use  power   under
AS  29.40.040(a).   The Borough relied on this rationale  in  the
trial court, and Magistrate Zwink ruled in the Boroughs favor  on
this  point.  But we are upholding the magistrates ruling  simply
because Stevens has failed to brief the merits of that ruling.
          There are reasons to doubt the Boroughs assertion  that
the  contested ordinance is justified under its land  use  power.
AS  29.40.040(a) states that a second-class borough (such as  the
Matanuska-Susitna  Borough) may regulate  land  use  through  (1)
zoning regulations, (2) land use permitting requirements, and (3)
[any  other] measures to further the goals and objectives of  the
[boroughs] comprehensive plan adopted under AS 29.40.030.
          The  Borough relies on the second of these clauses, the
permitting clause.  That clause of AS 29.40.040(a) declares  that
the Borough is empowered to enact:
          
          land  use  permit  requirements  designed  to
          encourage  or discourage specified  uses  [of
          land]    and    construction   of   specified
          structures,   or   to  minimize   unfavorable
          effects  of  [land] uses and the construction
          of structures[.]
          
          The   Borough  claims  that  this   statutory
          language    in   particular,   the    phrases
          discourage  specified  uses  [of  land]   and
          minimize  unfavorable effects of  [land]  use
          is    the   authorization   for   its   noise
          ordinance.
          The   problem  with  the   Boroughs
argument is that the noise ordinance at issue
here  does  not  appear to  be  a  permitting
ordinance.   The ordinance simply establishes
limits on the noise that can be generated  on
any  property within the Borough (outside the
city limits of Palmer, Wasilla, and Houston).
It  is true that a provision of the ordinance
(8.52.020)  allows  an  exemption  from   the
normal  noise  limits  for  a  special  event
properly  permitted  under  this  code.   But
there is apparently no method for Stevens  or
any  other  property owner to  apply  for  or
obtain  a permit that would exempt an ongoing
business from the noise limits established by
the ordinance.
          Moreover,    if   the    challenged
ordinance is indeed a land use ordinance, the
record  leaves some doubt as to  whether  the
Borough  complied  with  state  law  when  it
enacted  the  ordinance.   Under  AS   29.40.
040(a), all of a boroughs land use ordinances
must  be  adopted in accordance with,  or  to
implement,  a  validly enacted  comprehensive
land  use  plan.1  This requirement helps  to
guard  against prejudice, arbitrary decision-
making,  and  improper motives  by  providing
substantive standards to govern the  boroughs
individual zoning decisions.2  This safeguard
is  particularly important in cases like  the
present  one   where  the borough  government
responded to public complaints regarding  one
particular persons use of his land.
          Neither   in   its   trial    court
pleadings  nor in its briefing to this  Court
has  the  Borough explained how, or  if,  the
challenged  noise ordinance accords  with  or
implements  any provision of a  comprehensive
land  use plan adopted by the Borough.   From
the  record  before us, it appears  that  the
Borough  Assembly did not discuss this  issue
at  all when the Assembly debated and enacted
the noise ordinance.3
          Because  I have these doubts  about
the  Boroughs offered justification  for  the
noise ordinance, I want to emphasize that our
ruling  in  this  case  is  not  intended  to
constitute  an  endorsement of  the  Boroughs
legal argument.








                              


                                        


          






_______________________________
     1  AS 29.04.020; AS 29.04.030; Libby v. Dillingham, 612 P.2d
33, 42 (Alaska 1980).

     2 Alaska Const., art. X,  11; AS 29.04.010.

     3 AS 29.35.010; see generally AS 29.35.

     4 See, e.g., AS 29.35.150-180; AS 29.35.210.

5 AS 29.40.010.

     6 Emphasis added.

     7  See  Tenala,  Ltd. v. Fowler, 921 P.2d  1114,  1121  n.10
(Alaska  1996); Lewis v. State, 469 P.2d 689, 691-92 n.2  (Alaska
1970); Bobby v. State, 950 P.2d 135, 138 (Alaska App. 1997).

8 Matanuska-Susitna Borough Code (MSB) 8.52.015.

     9 MSB 8.52.035(A).

     10Id.

     11MSB 8.52.020(A).

12491 U.S. 781, 109 S. Ct. 2746, 105 L. Ed. 2d 661 (1989).

     13Id. at 791, 109 S. Ct. at 2754.

     14Id. (citation omitted).

     15Id. at 796, 109 S. Ct. at 2756.

     16Id.   at   798-800,  109  S.  Ct.  at  2757-58  (citations
omitted).

     17Id. at 802, 109 S. Ct. at 2760.

     18Earley  v.  State,  789 P.2d 374,  376  n.2  (Alaska  App.
1990).

     19MSB 8.52.015.

     20491  U.S.  at  796-98,  109 S. Ct.  at  2756-58  (citation
omitted).

     21MSB 8.52.015(B); MSB 8.52.035(A).

     22Kolender  v. Lawson, 461 U.S. 352, 358, 103 S.  Ct.  1855,
1858, 75 L. Ed. 2d 903 (1983).

     23See  generally Carolyn Kelly MacWilliam, Validity of State
or  Local  Enactment  Regulating Sound  Amplification  in  Public
Area, 122 A.L.R.5th 593  15 (West 2006).

     24674 So.2d 863 (Fla. Dist. Ct. App. 1996).

     25Id. at 867 (emphasis in original).

     26653 F.Supp. 775 (D. R.I. 1987).

     27Id. at 790.

     28820 N.E.2d 766 (Ind. Ct. App. 2005).

     29Id. at 768-70.

     30MSB 8.52.015(B); MSB 8.52.035(A).

     31Earley,  789 P.2d at 376 n.2 (citing Stock v.  State,  526
P.2d 3, 7-13 (Alaska 1974)).

     32470 N.W.2d 296 (Wis. 1991).

     33Id. at 297.

     34Id. at 302.

     35Id.

     36451 S.E.2d 315 (N.C. Ct. App. 1994).

     37Id. at 318-19 (listing other cases).

     38432 S.E.2d 470 (S.C. 1993).

     39Id. at 474.  See also State v. Dorso, 446 N.E.2d 449,  452
(Ohio  1983)  (construing Cincinnati ordinance  to  forbid  noise
that  could be anticipated to offend the reasonable person, i.e.,
the individual of common sensibilities).

     40Beaufort, 432 S.E.2d at 474 (citations omitted).

     41MSB 8.52.015(A).

     42MSB 8.52.035(A).

     43Id.

     44MSB 8.52.015(B); MSB 8.52.035.

     45Lazy  Mountain Land Club v. Matanuska-Susitna Borough  Bd.
of  Adjustment  and  Appeals, 904 P.2d  373,  384  (Alaska  1995)
(citations omitted).

46See Jurco v. State, 825 P.2d 909, 917 (Alaska App. 1992).

47See  Gregoire  v.  Natl  Bank  of  Alaska,  413  P.2d  27,   33
(Alaska  1966)  (refusal  to  grant  continuance  will   not   be
disturbed on appeal unless there is an abuse of discretion).

     48See  Disciplinary Matter Involving Triem,  929  P.2d  634,
642 (Alaska 1996).

     49Ross  v. State, 586 P.2d 616, 618 (Alaska 1978);  Beck  v.
State, 408 P.2d 996, 997 (Alaska 1965).

     50Ross, 586 P.2d at 618; Beck, 408 P.2d at 997.

     51Katmailand, Inc. v. Lake and Peninsula Borough,  904  P.2d
397,  402 n.7 (Alaska 1995); Petersen v. Mutual Life Ins. Co.  of
New  York,  803 P.2d 406, 410 (Alaska 1990); Wren v.  State,  577
P.2d 235, 237 n.2 (Alaska 1978).

1  Lazy Mountain Land Club v. Matanuska-Susitna Borough
Board  of Adjustment and Appeals, 904 P.2d 373, 377-78,
385  (Alaska 1995).  See also Price v. Dahl,  912  P.2d
541, 542-43 (Alaska 1996).

2 Lazy Mountain Land Club, 904 P.2d at 377-78.

3 Minutes of the Matanuska-Susitna Borough Assembly, May
18, 2004, discussion of Ordinance No. 04-092, the Noise
and  Vibration Ordinance, adopting chapter 8.52 of  the
Matanuska-Susitna Borough Code.

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