Consensus on enforcement, not contentious noise bylaw

Winery representatives have made it clear that noise bylaw amendments currently under consideration could be a death toll for the special events so desperately needed for the continued success of their industry.

At the request of council, town staff have been reviewing noise as it relates to special events and outdoor locations, and how it could be better controlled.

Staff were also tasked with investigating the possibility of including a decibel level, which is missing in the current bylaw, and resources to monitor it.

An open house scheduled for March had to be cancelled due to COVID-19, and last Thursday, a virtual meeting was held, with about 25 people registered to speak to the staff recommendations that would change the bylaw, based on a summary prepared by Couns. Clare Cameron and Erwin Wiens, who interviewed residents and stakeholders on the issue of noise.

Comments from the open house will accompany the draft in a report to council, which is recommending a fine of $350 for contraventions to the bylaw.

Several residents spoke of the shortcomings of the revisions, while representatives of wineries, along with Tim Jennings, CEO of the Shaw Festival, spoke of the harm it would cause their industries.

Andrea Kaiser, chair of The Wineries of Niagara-on-
the-Lake, pointed out some inconsistencies in the timelines, such as the cut-off for playing musical instruments at 10 p.m., with amplified music allowed until 11 p.m. 

Also yelling, shouting, hooting, whistling and singing are permitted until 9 p.m. Kaiser was one of several speakers who questioned including singing with other disturbing noises, and called for some “tweaking” of recommendations, suggesting the timeline should be consistent with a cut-off of 11 p.m. 

She also pointed out a revision that refers to types of noise likely to disturb the peace is “quite subjective in nature, and therefore impossible to define when someone is actually breaking the bylaw.”

Another concern Kaiser and others mentioned was a ban on amplified music at 55 decibels affecting abutting properties.

Although staff had been asked to come up with an enforceable decibel level, several speakers said 55 decibels is low, and is also impacted by air currents and weather.

Kaiser said it would “effectively prevent amplified music on winery properties for permitted on-site special events.”

She spoke of the need for a balance to be struck between businesses and residents, saying “the current recommendations don’t strike that balance.” 

She said she understands it’s an issue where it’s impossible to find consensus, and can only be achieved with compromise, asking that parameters for the development of a sustainable community and the local economy be considered.

Aaron Dobbin,  president and CEO of the Winery and Grower Alliance of Ontario, echoed some of Kaiser’s comments, and spoke of the wine industry as an “economic driver for the province, the region, and Niagara-on-the-Lake.”

The industry is suffering during the pandemic with the cancellation of weddings and concerts, he said, but wineries continue to show commitment to their customers, and have put practices and procedures in place to safely welcome back visitors.

“We need a noise bylaw that allows wineries to continue to operate and generate revenue from events, while protecting the interests of the border communities,” he said. 

The 55 decibel limit is lower than conversational speech, or “a dishwasher in the next room,” he said, adding people who go to a concert  “don’t expect to be home for the evening news.”

“Please don’t move forward with a bylaw that will make it impossible to put on events, and in turn hurt local jobs at wineries, restaurants and hotels.”

Del Rollo, representing Arterra Wines Canada, which includes Jackson-Triggs Estate Winery and Inniskillin Winery, spoke of “robust tourism strategies” that include events on patios featuring local chefs and local musicians, and the “ultimate experience” of live music under the stars in the Jackson-Triggs amphitheatre, while sipping wine with vineyards as a backdrop.

The winery employs hundreds of residents, and gives back to the community through fundraisers, he said.

Jackson-Triggs has tried through sound engineering to give a better experience for patrons while limiting the sound that moves beyond its boundaries, said Rollo. 

“The challenge is, like with most things in life, we can’t make everyone happy. We understand this and we try to make revisions each year to solve these problems.” 

The revised draft bylaw “would put an end to our amphitheater, and would put an end to outdoor events in general,” he said.

“I would argue that this is creating a whisper bylaw,” which would not allow for even a patio or restaurant to exist, he added.

Firelane resident Bill Auchterlonie, who lives in an area surrounded by farmland, pointed out the wording of the draft bylaw says it applies to residential areas. He asked for a revision that would make it clear it applies to the whole town, as did the original bylaw.

Although he was assured by Rolf Wiens, the Town’s manager of enforcement, that it is meant for the entire town, “it doesn’t say that,” said Auchterlonie.

Marion Hassebroek of Queenston Road agreed the bylaw must be written to cover all inhabitants of the town, and also spoke of the need for more enforcement.

She lives close to a winery, and when there is a party going on with outdoor music and it’s 11:30 p.m. she asked if a bylaw officer would be available.

When told no, there are no bylaw officers on duty at night, and that she should call the police, she questioned the likelihood of them doing anything.

She was told by Wiens that the police often have more important issues to deal with, and that though they have responded a number of times, and are able to hand out fines similar to a speeding ticket, “I don’t know if they have ever been issued.”

He said neither bylaw officers or police officers have decibel metres.

Hassebroek asked that the Town increase the penalties and enforcement associated with the bylaw.

“We’ve made complaints, and none of these fines are actually enforced. What protection do we have here if there is no enforcement?”

Wanda Nord, a resident on the Niagara River Parkway, said she’s contacted the police regarding noise from an outdoor event and has been told that the event organizers have a permit issued by the municipality, “and it is up to them to enforce it.”

Other residents spoke of the need for more enforcement and higher penalties, and whether there is a saturation point for special events.

Municipal lawyer Tom Richardson, speaking for Ed Werner of Lakeshore Road, offered his legal opinion on what he sees as problems with the draft bylaw, chief of which is the issue of the treatment of residential versus agricultural areas. The draft bylaw prohibition of disturbing noises does not apply to the agricultural or industrial area of town, he said, and only protects those in residential areas.

The areas where Auchterlonie and Hassebroek live, in agricultural areas, are not protected. “The bylaw does not regulate noise in the agricultural area unless it impacts residents in residential areas.”

He said there are other conflicting amendments which would make it impossible for the public to understand limitations with respect to noise at special events, and suggested the Town “may wish to create a committee of concerned citizens. reflecting the various communities in town you’re hearing from tonight.”

Tim Jennings, executive director and CEO of the Shaw Festival, said the draft noise bylaw is especially problematic for those in the arts and cultural professions, with a reduced time allowed for music, and singing added to noises such as shouting and hooting. He also spoke to the issue of noise limited to 55 decibels in the proposed legislation.

“The difficulty with decibel readings, and we do a lot of them in my world, is a normal household air conditioner at 100 feet is louder than a 60 decibel reading. I’m speaking at about 60 decibels. At 70 decibels, we’re not yet at the noise of a TV in the living room.”

A noise could be 76 decibels at source and 60 decibels 15 feet out, but would be impacted by wind changes, he said.

The 50-decibel range “is really, really low. You want to be really careful about the range of noise you’re talking about.”

The 11 p.m. cut-off “is working extremely well. The enforcement of the bylaw is the real issue.”

Jennings said he looks forward to either the draft bylaw being rethought, or a return to the current one with a better method of enforcement.

Eduardo Lafforgue of the NOTL Chamber of Commerce said the restrictions in the draft bylaw will “jeopardize the relaunching of traditional major events, as well as live entertainment and music.” It would be a blow to tourism at a time when the tourism community “is just barely holding on and hoping to survive this crisis.”

Noise from special events is not the only disturbance for residents.

Other issues that were mentioned included bird bangers and short-term rentals.

Yuksel Oren spoke of basic human rights to live at home without unnecessary noise, and the use of “propane-fired cannons” in the vineyards behind his York Road home. He compared the sound generated by the bird bangers to water torture, generating “a terrible noise” every three to 10 minutes, even with doors and windows closed, and said there are alternatives for growers, although more costly. 

York Road resident Jim Fisher also spoke about the noise from bird bangers. “We went through 81 continual days in 2019 of howitzer noise, beginning at half an hour before sunrise to half an hour after sunset,” he said.

Although the Town’s position has been that it has no jurisdiction over what is considered a normal farm practice, Fisher suggested a Town noise bylaw could restrict the use of bird bangers, forcing growers to apply to the provincial Normal Farm Practices Protection Board for a hearing to override a municipal bylaw.