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HomeMy WebLinkAbout1996-10-16October 16, 1996 (Regular Night Meeting) (Page 1) 000, ,35 A regular meeting of the Board of Supervisors of Albemarle County, virginia, was held on October 16, 1996, at 7:00 p.m., Room 241, County Office Building, McIntire Road, Charlottesville, Virginia. PRESENT: Mr. David P. Bowerman, Ms. Charlotte Y. Humphris, Mr. Charles S. Martin, Mr. Walter F. Perkins and Ms. Sally H. Thomas. ABSENT: Mr. Forrest R. Marshall, Jr. OFFICERS PRESENT: Attorney, Larry W. Davis. Agenda Item No. 1. Chairman, Ms. Humphris. County Executive, Robert W. Tucker, Jr. and County The meeting was called to order at 7:02 p.m., by the Agenda Item No. 2. Pledge of Allegiance. Agenda Item No. 3. Moment of Silence. Agenda Item No. 4. Other Matters not Listed on the Agenda from the Public. There were none. Agenda Item No. 5. Consent Agenda. There were no items on the consent agenda. Agenda Item No. 6. Public Hearing on an ordinance to amend and reordain Chapter 4, Animals and Fowl, Article II, Dogs, of the Code of Albemarle. This amendment will add a section 4-14, called "Barking Dogs" This section would make it unlawful and a nuisance for the owner or custodian of a dog to harbor or keep any dog within the County which by loud, frequent or habitual barking or howling disturbs the peace and quiet, or repose of any person with normal sensitivities, provided, however, this section would not apply to any dog located on property zoned Rural Areas or to any dog in a commercial kennel. (Advertised in the Daily Progress on September 30 and October 7, 1996.) Mr. Davis said the ordinance before the Board tonight would create what is known as a "Barking Dog" Ordinance. In the urban part of the County {all land not defined as Rural Areas), it would be unlawful for the owner or custodian of a dog to allow any dog to create a nuisance by loud, frequent or habitual barking or howling. If such a situation occurred, the ordinance would allow a complainant to swear out a criminal warrant and prosecute the case criminally in the General District Court. A violation of this section would constitute a Class 3 misdemeanor which could be punishable by a fine of up to $500.00.. If there were more than three convictions for any dog within a twelve month period of time, the court could order that the dog be moved from the area and/or destroyed. This matter comes to the Board after much discus- sion this year and investigation by staff of different types of ordinances. It is for the Board's consideration as to whether this ordinance is necessary in light of other civil remedies which may be available to people who have such situations. With no questions from the Board members for Mr. Davis, Ms. Humphris opened the public hearing. Mr. Thomas Goodrich said he lives in a subdivision that is zoned rural. Other subdivisions around him have quarter acre or half acre zoning. He has a neighbor two houses away who has three barking dogs, and he cannot identify which dog is barking, so that part of the ordinance would be useless to him. His taxes are no less than anyone else's in the County and his question is why the rural areas are excluded. He cannot walk down his street without these dogs barking. It is a rural area and he would like for it to sound rural and not like a city urban area. Ms. Allison Gardner said she is opposed to the ordinance. She thinks the ordinance will single out pet owners and dogs as noise polluters. She would rather just keep the noise ordinance which includes dogs rather than adding another ineffective ordinance. It will only pick on pet owners who can't afford lawyers to defend themselves. She does not think this ordinance is fair because if one person in the neighborhood does not like your dog, this person can complain about the dog three times in one year, and your dog can be October 16, 1996 (Regular Night Mee'~ng) (Page 2) 0002,39 euthanasied. She thinks the ordinance discriminates. It is an elitist ordinance. Mr. Charles Gibson said he lives in Arbor Hills. He feels that all County residents need an ordinance on barking dogs. He has neighbors on each side of his property who are responsible and control their dogs. There are others in the area that raise dogs for hunting. Those dogs bark, yelp and howl all day and night. He has talked with the Chairman of the Board and his representative on the Board (who said he has more complaints about peacocks than dogs). Mr. Gibson said he had visitors to his house and the bedrooms are on the opposite side of the house from where the dogs barked and these people were awakened. During their evening meal they have to close the windows and doors, but can still hear the dogs. In their family room while watching T.V., they have to close the doors and windows. These dogs are deer hounds. He believes any ordinance put into effect should protect him as well as people in the urban area. He said they bought in the area 19 years ago because it was rural, but the acreage is just a little over one acre per house, so the houses are close together. There have spoken to the owners who denied that it was their dogs doing the barking. He has called the police who investigated and said it was those dogs, but there is no ordinance on the books to protect him. He asked that the Board consider this. Mr. Bill Benner said he lives on Carrsbrook Drive. He had two new neighbors move in simultaneously behind his property. One had three dogs, and the other had two dogs. The family with two dogs let the dogs out at 7:30 a.m. The dogs were outside all day and barked continuously. The three dogs were left out day and night. He did not want to say anything, wanting to get along with the neighbors. Finally he called the police who sympathized with him, but said that legally there was nothing they could do. He talked with someone who suggested that he talk to the neighbors. He called Animal Control and they went and talked to one of the families. It only helped for a couple of days. One of the neighbors went so far as to suggest that Mr. Benner move out into the County and get more land. Mr. Benner said dogs barking are annoying and one or two dogs can incite all the dogs in the neighborhood. This situation went on for eight to ten years, and eventually everyone in the neighborhood said something, but it never did any good. The only thing that has helped them is that the dogs have gotten old. What happens when these dogs die, and are replaced with new dogs? He thinks an ordinance is needed. It can't be left up to arguing with the neighbors because that is when problems start. Mr. Leon Gorman asked if a person swearing out a complaint has the burden of proof in the courtroom. Also, can someone just swear out a com- plaint without having to go to the court? Mr. Davis said the person with the complaint can go before a magistrate and swear under oath that an offense has occurred. The magistrate will then have a subpoena issued and that person will be required to testify. The burden is to prove beyond a reasonable doubt that the person who owns the dog has allowed the barking to occur. That burden is on the Commonwealth, and the complaining witness would be the chief witness and bears that burden. Mr. Gorman said he did not see that in the ordinance. It is his opinion that for someone to protect their dog, they would have to hire a lawyer to go into the courtroom. The person swearing out the complaint does not have to hire a lawyer. In his neighborhood, about 30 percent of the people will find something to complain about. His dogs are well-behaved. They stay on a leash, but when someone walks by or comes up to the house, they will bark. He would be required to hire a lawyer and go to court because someone else does not like anything that goes on in the neighborhood. The way the ordinance is written, it is one sided. He has never heard of this type of ordinance before. If there is to be such a law it should be rewritten and show where the burden of proof is. Mr. Michael Goldman said he lives in the urban ring of the County. He is concerned about the Board extracting, redefining and separating different types of noise pollution. By pinpointing dogs barking, the Board may cause extreme prejudice against dogs, their owners, and turn this ordinance into an anti-dog measure. Land moving equipment is allowed to run eight to twelve hours at a time. Neighbors and construction workers can operate chain saws at 82 decibels for two to four hours at a time. The County's own maintenance crew operates five big lawn mowing pieces at 7:00 a.m. at Cale Elementary. Why would the Supervisors adopt an anti-dog barking ordinance, but yet be 000240 October 16, 1996 (Regular Night Meeting) (Page 3) enthusiastic about a residential development adjacent to 1-647 Why is it that the Supervisors do not think dog owners have the same sensitivities as a complainant? Mr. Goldman said he is concerned that under the modified noise ordinance initially discussed in late July and early August there were recommendations that anyone might be able to purchase noise limit waivers above those set by the Board. In his development, if the board of directors wishes to have a block party and buys one of these waivers and holds the party with music and noise at the end of his cul-de-sac, and his dogs bark during this time, it is possible that one or all of the neighbors could go to the magistrate and complain that the dogs are in violation of the ordinance. He is concerned that the Board may be removing the responsibility of one neighbor to another, building friction between neighbors and destroying neighborhoods. He is concerned about the expense of losing a day from work, and hiring an attorney to refute the magistrate's credentials in determining whether a complainant has reasonable sensitivities after just a single interview. He is concerned that his dog may be banished from Albemarle County, or worse, euthanized. Mr. Goldman said he took some decibel readings at his home the last few months. On Route 742 at 9:30 p.m., the readings were 58 to 62. Those were just the crickets. At 10:00 p.m., it was 62 to 64 decibels from the crickets. His dogs were at 72 decibels. Recently, the rain was at 62 to 64 decibels. The workmen hammering and sawing in the lot adjacent to his were at 74 decibels. Dog barking is basically a noise condition so should be under a noise ordinance, not a specific anti-barking dog ordinance. Mr. Keith Ford said "we don't need no more ordinances." He is a coon hunter, hunting raccoons for sport. He said coon hunting is not like it used to be when one carried a kerosene lantern and bought a dog for $25.00. To buy a coon hound, it costs from $25.00 to $35.00 and for a good stud dog, the cost could be $5000.00. You need to know where this dog is at all times, so you invest in collars that might cost $1800.00 each. If he is hunting near Richmond or up in Ohio where the land is flat (he can't watch the branches because he is strictly a hillbilly), if he gets lost, he can push Channel 4 and find where his truck is parked. Coon hunting is a big sport. He lives in a rural area in Boonesville. The worst punishment a coon hunter can have is to have his coon dog run a deer, fox, bear, or anything other than a coon, because that is what he trains that dog to do. The second worst punishment a coon hunter can have is his coon dog either barking in the kennel or on the chain. The dog will be kept on a chain occasionally so he will learn to lead, especially when it is a young dog. Mr. Ford said what bothers him is to have that dog barking on the chain. It will drive a coon hunter crazy. He does not want that dog to bark in the kennel or on the chain because it messes up his vocal cords and he can't be heard in the mountains. He wouldn't give ten cents for a silent dog. He just gave one away one of the highest breeds in the country, Timber Chopper, for that reason. Mr. Ford said since Albemarle County has been allowed to grow the way it is growing now, he can go out to hunt (he has permission to hunt on a lot of land), and if a dog gets in a subdivision and starts barking while treeing a coon, an owner can come in and get a warrant for him and then he (Mr. Ford) has to hire an attorney to protect his dog. That man will have the right to do that if this ordinance is adopted tonight. Mr. Ford said he was hunting near Richmond last year and his dog struck a coon and trailed it down the branch right into a subdivision, and treed it in someone's back yard. Then the man came out on his deck, and Mr. Ford asked permission to catch his hounds and leave. The man did not say anything, but went into his house and got a bag of fireworks, and lit the bottom of the bag and pitched it over on them. He doesn't want anyone getting a warrant for him because his dogs slipped over, and he doesn't think he should have to put up with that. He handed in petitions containing 57 signatures of people asking that the Board not enact a dog ordinance in the rural areas of Albemarle County (on file in the Clerk's Office). Mr. Donald Roberts said he was present to speak against the ordinance. One of the things the Board has stood for is keeping the County as rural as possible. All know the County is going to grow. Since this country was born, there have been men with dogs and families with dogs. Dogs are for protec- tion. Dogs are wonderful associates to be around, and to give great peace of mind. With the ordinance being considered tonight, the Board is trying to put the County in the business of solving problems between neighbors. That is not what County government is for. The County is to take care of the well-being October 16, 1996 (Regular Night Meeting) (Page 4) 000241 of the community. Dog owners are taxpayers, they have to pay a special fee to get a license, pay to have the dog vaccinated, pay many things to maintain these animals. He understands there are problems with dogs barking, but he thinks there are civil penalties that can take care of this. The County does not need to make dogs criminals. Ms. Sherry Buttrick said she lives in a rural part of the County and they work hard to keep it that way. If an ordinance like this were to be applied to the rural areas it would suburbanize their area to some extent. They keep some dogs, and their neighbors keep some hounds, and they are not bothered by them. She is glad to see the rural areas are not included in the ordinance at this time, and she hopes they will not be included. Ms. Pam Dent said she is the president of the Charlottesville/Albemarle Kennel Club. The Club has members living in both rural areas and the more densely populated areas of the City and the County. These people care deeply about their dogs and are responsible dog owners. They have invested a lot of time in training, public education, and care of these dogs. They see this ordinance as an anti-dog ordinance, potentially discriminating against people who care about dogs. A lot of people moved to Albemarle because of its rural nature, and she thinks this ordinance would change that nature. She also believes it is a nuisance ordinance, and it bothers her to see the freedom to have dogs put under more and more control. Ms. Ann Via said she lives in Free Union. She is against this dog ordinance. Dogs can be kept from barking and bothering their neighbors if the owner tries to. Ms. Janice Moeller said she lives in Canterbury Hills Subdivision. She is encouraged by the proposed ordinance. She sees a lot of concerns on both sides. She suggested that the ordinance only apply to subdivisions within a five to ten mile radius of the City. She lives in a nice neighborhood and when she moved in eight years ago she was surrounded by four dogs, and now there are nine. Many times they have had to move to another part of the house, turn up the stereo very loud, or wear ear plugs just to be able to read or study. She has had her daughter crying at 11:00 p.m. because she can't sleep and has to get up early to go to school. They have tried over the years to approach the neighbors in a tactful way. They have either hung up the phone or gotten very ugly, which bothers her. She thinks the ordinance is a good idea and she hopes it happens. Ms. Wendy Caldwell said she is against the ordinance. She is a pet owner and a dog trainer and helps others train and be responsible for their pets. She feels it is an individual matter and should not be taken under legislation, but approached individually. Those who are responsible seek to show others that their dogs are good citizens. There is a subdivision which is rapidly encroaching on her property, and her dogs may bark if incited by construction, etc. It would be a natural thing, but as responsible pet owners this should be taken under advisement and should be an individual matter. Mr. Joseph Raines said he lives on Old Lynchburg Road and is opposed to the ordinance as written. He feels the Board will be opening "Pandora's Box" to a lot of nuisance calls. He feels there may be a problem with the urban- ization of Albemarle County, but he does not think this is the way to address it. Obviously there are people who have problems with neighbors and barking dogs and they need some recourse, but he does not think this is the way to go about it. He handed in petitions containing over 100 signatures of persons from all over the County voicing an objection to this ordinance (on file in the Clerk's Office). He is opposed because he feels the ordinance is too broad and too vague. Ms. Annette Watkins said she has lived in Albemarle County all of her life. She has had dogs for over 25 years. She understands that it is a benefit to society to have laws that protect the citizens. It is important for the citizens to have recourse, especially the ones who are wronged. She is concerned that a certain part of the pet population has been segmented. She sympathizes with those who suffer and deal with the nuisance barking, but feels the ordinance is unnecessary. The nuisance noise ordinance which is already in place in the County has been used to argue and settle cases. She thinks it is unnecessary to segment out just dog owners. She is also dis- turbed by the severe penalty. Any barking will be a nuisance to anyone who does not want to hear it. There are many reasons why dogs bark: stimulation, a squirrel, a siren, territorial reasons, and neglect which is the number one October 16, 1996 (Regular Night Meeting) (Page 5) issue for a true nuisance barking dog. A neglected animal will bark because of boredom, lack of attention, lack of exercise, hunger, or pain. Those animals which are true nuisance barkers should be turned over to animal control or the Humane Society. They will not stop barking because an ordi- nance is imposed. Imposing responsible dog ownership is the best way to deal with the problem. She feels this ordinance infringes on her right to own animals, live with them, and to feel safe in her home. The densely populated areas would be better served by neighborhood associations to arbitrate these problems. She thinks this is a redundant ordinance because of the current noise ordinance and she thinks the ordinance will affect everybody who owns a dog which can bark. Ms. Diane Hartling from Berkeley Subdivision said there are a lot of dogs in the neighborhood. When she walks in her back yard, dogs bark at her from all sides. It is hard to sleep. It is hard to take a nap in the afternoon. She is not against dogs as pets, but dogs are the only pets that bark. She would like some recourse to get some peace and quiet. Mr. Fred Hartling from Berkeley Subdivision said he had a dog at one time which ran off of his property and bit a man. He had to have the dog pounded for two weeks. Now that he is not a dog owner he finds that some people in the neighborhood who have dogs care nothing about the people who live on either side of them. He has contacted several people and they really don't care. People like this make it hard on other dog owners. If the ordinance were enacted for subdivision areas and not the rural areas, he thinks it would be more helpful. He understands the homeowners who don't have dogs but have to be annoyed by this type of barking. Mr. James Haden said he is not a dog owner, but is opposed to this ordinance. One thing being overlooked is that people own dogs for safety reasons. The fact that the dog barks is where they get their sense of safety and security. He has worked the night shift for a while, his wife is opposed to guns so he would never have a gun in the house. If his wife were at home with a dog which could bark and protect her to some degree that would make him feel better about the situation. He thinks this ordinance will just compli- cate people's lives more than is necessary. Mr. Bill Watson said he has a dog which barks. He has been robbed in the last 12 months and when the police came, they said the best defense to a robbery is a barking dog. He likes this second draft of the ordinance better than what was presented originally, but he offered two suggestions. There is a concern about dogs in certain neighborhoods, and it is difficult to have a barking dog if one cannot sleep at night. He asked that the Board consider a time element for the ordinance, and that there be more than one complainant. In the more urbanized area of the County, if one person is being bothered, there must be more people being bothered. He suggested that having two or more complainants be necessary. If the ordinance is passed as drafted and he had a complaint filed against him, he would have only one option, and that is to "debark" his dog. He does not want to do that, especially since he has been robbed. Ms. Jane Russell said she has been working for eight years with Oak Forest Circle and has talked to many people at the Senior Center and other groups. What has happened is that in every community there is a "bully". Most people are now going to work and leaving their dogs outside to bark. When they are approached, they say they have a right to leave the dog outside barking while they go to work. Ms. Russell said she works at home, and there are other people in the neighborhood who have jobs which require them to sleep during the day. Out of 72 people on Oak Forest Circle, most are wonderful neighbors, but once in a while there is someone who has a "chip on his shoulder" about his dog. She has had a serious problem with one or two neighbors and cannot sit in her front yard because the barking is so loud. She thinks her rights need to be considered too. She is a voter. Ms. Marianne Sullivan said she lives in the County, is a dog owner, and she also trains dogs voluntarily. She has sympathy for the people who are concerned about barking dogs. She does not believe an ordinance is the way to resolve the problem of irresponsible dog owners. It sounds like most of these people are in subdivisions or crowded neighborhoods. She wondered if these people could not form neighborhood associations or have some means of arbitra- tion to resolve all types of problems. She wondered if an area was presently zoned rural and that zoning was changed, would the property be grandfathered or are you then under this ordinance? She said they moved to the County and October 16, 1996 (Regular Night Meeting) (Page 6) 000 43 bought agricultural land for very specific reasons. She hopes that will be preserved and she does not have to feel threatened every time a zoning change comes along. Ms. Cheryl Haden said she is opposed to the ordinance. She thinks the noise ordinance should suffice. With no one else from the public rising to speak, the public hearing was closed at 7:57 p.m. Mr. Martin asked what constitutes probable cause. Mr. Davis said he thinks the magistrate would judge your credibility and listen to the situa- tion. If he believes a reasonable person would be disturbed by what has been described, he would likely issue a warrant that there is probable cause (which is an ambiguous standard). Mr. Martin asked if there is an opportunity for the person who is being complained against to answer at the magistrate's level, or does he only get a chance to give his version of the story at adjudication. Mr. Davis said the magistrate only hears the complainant. Mr. Martin asked if he went to the magistrate and seemed like a reasonable person, the person who is complained against would have no redress until adjudication. Mr. Davis said that is correct. Ms. Humphris said based on the story Mr. Martin just told, the magis- trate would not have gotten probable cause by him saying it just happened because of the habitual clause written into the law. Mr. Martin said someone suggested earlier that more than one complainant be required. He asked if that is legal. Mr. Davis said some jurisdictions have devised ordinances where if neighborhoods have people in close proximity to one another, more than one complaint could be required before a summons can be taken out. If the neighbors are far apart, the magistrate would require only one complaint. The problem is that this type of ordinance requires a lot of recordkeeping and the direct involvement of the police or the animal warden to keep tract of the complaints. The model ordinances Mr. Davis looked at require the animal warden to take an active part in the prosecution because he knows there have been two complaints within a certain period of time. He is then required to subpoena both of the complainants to come in and testify. It is a more complicated process than what is written in the proposed ordinance. Mr. Martin asked if there is anyway to get the animal warden out of it by writing in the ordinance that the two complainants have to make their complaint at the same time. Mr. Davis said he has not seen any ordinance written that way, but he does not know of any reason it could not be done. Mr. Martin asked if it was written in this manner if it would be legal. Mr. Davis said he sees no reason why it would not be legal. Mr. Bowerman asked what will be different about getting a summons issued under the proposed ordinance, as opposed to what is done at the present time. Mr. Davis said in a criminal procedure under the proposed ordinance, a person would swear out a summons before a magistrate and the complainant would have to come to court and testify. If the judge believed their story, the judge would have the option of finding that person guilty of a crime and imposing a fine. The fine would be paid to the court. That is a crime against the County. The alternative is a civil procedure. In that procedure there are two different remedies. One is for someone who feels they have been damaged by the unreasonable barking to go to the General District Court and swear out a civil warrant in debt for damages. If they can prove that the unreasonable barking is a nuisance which has caused them to break their lease, or have medical problems, or lose wages, or in some way to damage their economic life, they could simply swear out a summons, appear in what is basically a small claims court in Virginia, and if they prove their case by a preponderance of evidence, the judge could find for the complainant and issue them an award of damages. Mr. Martin asked if the burden of proof is the same in civil court as in criminal court. Also, is there a Commonwealth's Attorney paid for by the State to represent the complainant in civil court. Mr. Davis said the burden of proof in a criminal case has to be beyond a reasonable doubt which is a high burden of proof. In a civil case, the burden is by a preponderance of October 16, 1996 (Regular Night Meeting) (Page 7) 000244 evidence which means that if it is more likely than not, you have proven your case. In a criminal case, the Commonwealth's Attorney is typically in the General District Court, and since it is a crime against the County and the Commonwealth, he will assist in that prosecution if he feels it is warranted. In a civil court, neither the Commonwealth's Attorney or the County Attorney can play any part in that. It is purely a civil matter between private citizens. They can choose to have a lawyer or not at their discretion. Mr. Martin said it seems that getting it into court is just as easy either way it is done. In civil court, it is the complainant against the person who is being complained against. Either, or neither, can have an attorney. It is a fair situation in that the defendant does not have to spend money because the complainant has access to the Commonwealth's Attorney. Also, in civil court, the complainant has a lower burden of proof than in criminal court because it is only a preponderance of evidence as opposed to reasonable doubt. Mr. Davis said that is correct. The second problem of the civil remedy would be if someone was not claiming damages, but just wanted the nuisance to be ordered stopped, That type of action cannot be filed in General District Court. It can only be filed in Circuit Court where a judge has the power to issue an injunction. That is a more complicated procedure for a non-lawyer to get involved in. It would likely require most people to obtain a lawyer to have that filed. In Circuit Court, what would need to be proved by the complainant is that they were no longer being provided the reasonable use of their property because of the barking. In that instance, the judge would have the ability to order the barking dog to stop barking and the dog owner to take whatever steps were necessary to assure that. If the dog owner did not comply, he would then be in contempt of court and the court could, in serious cases, imprison that person for failing to obey that order. In that instance, the complainant gets nothing other than the fact that the dog no longer barks. There have been cases litigated all the way to the Supreme Court of Virginia involving barking dogs where it was found to be a nuisance, and the courts have been upheld in that decision. What everyone needs to understand is that whether it is a criminal remedy or a civil remedy you have to go to court, and have to testify. Adoption of any ordinance will not solve problems among neighbors. Mr. Martin asked if a person went to General District Court and asked for damages if the General District judge has the authority to do something less than order a financial award once he sees the preponderance of evidence. Mr. Davis said in a civil case, probably not because he does not have the power to issue an injunction. A Circuit Court judge does have that authority. Mr. Bowerman said that in seven years as a member of this Board he has received only one complaint about a barking dog. When this issue came to the Board several months ago, it was a specific issue that a citizen brought to the Board. He presented a bleak case for the situation in which he was involved. That citizen has since gone through the civil courts and been found to be correct. Mr. Martin asked if that was heard in Circuit or General District Court. Mr. Davis said he thinks it was heard in General District Court and the person was awarded damages because of a broken lease. Ms. Thomas asked if the dog stopped barking, or are all of the other people in that neighborhood still being impacted by that dog. Mr. Davis said he understands it has stopped. A person in the audience said the dog has been removed from the neighborhood. Mr. Bowerman said he does not see much of a difference in procedures between having the ordinance, or not having this ordinance. It still relies on the individual to make their case before a magistrate and a judge. Most of his district is urban. This is not something he wants to put in place even in the urban area because he feels there are already remedies to deal with the problem. The government can't legislate common sense and good neighborliness, and that is clearly what is being discussed. For that reason, even though the ordinance is restricted to just the urban area, he will not support adoption of the ordinance. Mr. Martin said he will go along with Mr. Bowerman. He wanted to explain himself because he has been written up in the press as not caring or being concerned about this problem. There are three issues. The ease with which one can get a warrant which leaves it open for "pay-back". The fact that one can go in, act reasonable, give a reasonable story, and one only needs to establish probable cause. At that point, you get to go to court with the Commonwealth's Attorney, and the person you are complaining against is October 16, 1996 (Regular Night Meeting) (Page 8) 000245 probably going to have to defend himself, or hire an attorney. That is one of the things that bothers Mr. Martin. He thinks that issue could be overcome by requiring more than one complainant. The thing is that there is more than one means to do it. The thing that has not been discussed tonight is the fact that the County does have a noise ordinance in place. He thinks barking dogs would be covered by that ordinance. Mr. Davis said the existing Noise Ordinance which applies in residential areas between 10:00 p.m. and 6:00 a.m. restricts noise at the receiving property line to 65 decibels. He has been told that the bark from a dg cannot be measured because it is a broken noise. There is not an effective remedy under the existing noise ordinance. Mr. Martin said the thing that concerns him is that this ordinance focuses on dogs. What about a family with a sick child that cries all the time? What about a family just like his that seems to accumulate kids in the yard playing football or basketball? That would make more noise than a barking dog. These are issues between neighbors and that interferes with the ability to pursue happiness in your neighborhood. If this ordinance is to be adopted, why not adopt an ordinance which requires people to mow their yard once a week? What about people who don't clean out their gutters, so there are weeds growing out of the gutters? Those things can be irritating. That interferes with his pursuit of happiness especially if he has to walk his family by that. He thinks this ordinance is too much government and it is not necessary. There are other ways to deal with the problem. Ms. Thomas said this is an emotional issue. She thinks people did a nice job of making clear presentations on how they feel without getting disagreeable. She has gotten phone calls from a number of people who feel there is nothing they can do. Yet, there seems to be some civil remedies. These citizens have said that some lawyer told them there is nothing they can do, or some policeman told them there is nothing they can do. When people feel there is nothing they can do, people turn to the government. People don't know how to access the remedies which are available. She said the County is falling down in its responsibility by not telling people how to find a solution. Mr. Tucker said staff wanted to see what would happen at this hearing. Staff can outline what remedies are available, and get that informa- tion out to the public. Ms. Humphris said the Board has been dealing with two questions. Do people really have a problem, and she thinks that some people do. The second is whether this proposed ordinance is the proper remedy. She is hearing from the people who do not have the problem that this ordinance is not the proper remedy for a number of reasons. She thinks it is clear that there is a problem, but there is a remedy. The Board should have the directions for people to follow drawn up and have that made available to the public. Ms. Thomas said she ran some hypotheticals past Mr. Davis at one point. When the dog is disturbing your sleep, but you haven't lost your job, and you haven't decided to move yet, and you don't have a headache sufficient to have a doctor's bill, she does not think the civil remedy will be sufficient for dealing with some of the issues that would be picked up by persons of reason- able sensibilities. Ms. Humphris said she understood Mr. Davis to say that even if you are not seeking damages, you can go to the Circuit Court for an injunction. Mr. Davis said that is correct, but he does not want anyone to think that is an easy remedy at that level. It is a more complicated proce- dure where one would have to file a pleading that needs to be drawn up by a lawyer and a hearing date set. It is a formal court of record so the burden would be to present to the judge the court standard that the reasonable use and enjoyment of your property has been denied because of the barking dog. It is an available remedy, but in a severe case. It is a case where you have lost the enjoyment of your property because of an unreasonable situation that is on-going. Ms. Humphris said the Board is not talking about the dog that barks as you walk by, or barks when you go to the front door. Mr. Davis said those cases would not be sufficient. Mr. Bowerman said it is unfortunate that bullies exist. Life is not fair and sometimes you have to go out of the way to redress something you feel has been committed against us. He does not see any other way to deal with this problem. Mr. Martin said he would offer motion that the Board not adopt the ordinance to amend and reordain Chapter 4, Animals and Fowl, by adding section Approved by the Boal Date i(~ Initials October 16, 1996 (Regular Night Meeting) (Page 9) 000246 4-14 entitled "barking dogs." The motion was seconded by Mr. Bowerman. Roll was called, and the motion carried by the following recorded vote: AYES: Mr. Martin, Mr. Perkins, Ms. Thomas, Mr. Bowerman and Ms. Humphris. NAYS: None. ABSENT: Mr. Marshall. Agenda Item No. 7. Approval of Minutes: January 3, 1996. Mr. Martin had read January 3, 1996, pages 1 - 15 (Item #14) and found them to be in order. Motion was offered by Mr. Martin, seconded by Mr. Bowerman, to approve the minutes which had been read. Roll was called, and the motion carried by the following recorded vote: AYES: NAYS: ABSENT: Mr. Martin, Mr. Perkins; Ms. Thomas, Mr. Bowerman and Ms. Humphris. None. Mr. Marshall. Agenda Item No. 8. Other Matters Not Listed on the Agenda from the BOARD. Mr. Martin mentioned that a group of Ukrainians are coming on Monday, October 21, and a group of Russians are coming on Tuesday, October 22. He invited all Board members to the Wilson Dance Studios on Proffit Road at 3:00 p.m. He said it is one of the largest Russian groups to tour this area and they will be doing so shortly and are coming to Albemarle for a preliminary scouting of the place. There is a press conference on Tuesday. Ms. Thomas said the Charlottesville-Albemarle Transportation Study (CATS) has a draft which is being looked at by a citizens group and the technical advisory group to see if the plan fits in with the County's Compre- hensive Plan in all matters. The Metropolitan Planning Organization (MPO) will be looking at it also. It lays out the plans for transportation, not just roads, but everything from "park and ride" sites to studies of future roads. Ms. Humphris said it is a very interesting document. The citizens group has put in a tremendous amount of work on it, so it is a valuable document. Agenda Item No. 9. Adjourn. With no further business to come before the Board, the meeting was adjourned at 8:28 p.m. Chairman