Date: Thu, 02 Nov 2006

Subject: Re: Barcroft Learning Garden and Outdoor Classroom

Thank you for the background information. You and other members of the school community have certainly spent a considerable amount of time and financial resources on the musical instruments and the garden that surrounds them as evidenced by the information provided in your letter. We recognize that you are committed to the instruments and garden and have been thinking creatively about how to dampen the noise. Nevertheless, since the installation of the stationary drums, 8 foot tall metal chimes and other noise makers, despite our requests, the request of others in the impacted zone, the support of other impacted land owners, and any intermediate steps you have taken, we continued to hear the instruments until they were recently disabled at the request of the neighborhood association. Because we were named in your letter and you sent it to a number of persons and a list serve, we feel it is important to respond so that everyone is on the same page.

Based on communication between School Board Chair Mary Hynes and Superintendent of Schools Dr. Robert Smith, provided to us via Ms. Hynes, we understand that Dr. Smith has stated that “measures will be taken to secure the instruments to prevent them from being played during non-school times.” (See the attached letter, dated October 18, 2006). The Superintendent's statement is clear. The drums, metal chimes and other instruments should not be able to be played during non-school hours. We expect the school and the PTA will abide by his decision, despite the school's public statements to the contrary. Thus, we consider there to be no need for continued discussion about the use of the instruments during non-school hours. However, to the extent the instruments are able to cause or facilitate a noise disturbance during school hours (e.g., full days, 9:00 a.m. - 3:41 p.m.) we have requested that the Arlington Public Schools and/or County remove them.

By way of background, since the installation of the instruments, we have communicated on numerous occasions with the school and the PTA requesting the abatement of the noise. For five months we were told that the school will add more mulch, that the school was merely using grant money, and that if the noise was unbearable we should call the police each time it happens. We waited patiently throughout the summer for the school to take action. But none of the steps that were apparently taken by the school – until the recent disabling of the instruments – addressed the core issue, which is that the stationary drums, metal chimes and other instruments installed at the school are intended to produce sound that causes a noise disturbance.

We understand that you and other caretakers of the instruments and garden cannot hear the instruments on your property, but because we neighbor the school we can. This is no different than if your neighbor installed drums, metal chimes, and other instruments in their backyard, to be played by anyone who decided to stop by to use them – it has nothing to do with living next to a school (it just happens to be where these instruments were installed and that they are very accessible). With all due respect, our request to be able to live in our house and use our land in peace and quiet is not about how much grant money was spent on the instruments, that a hardware store paid for the plants, whether Barcroft is a good school or whether the request initially included sunshades or not. It is about noise making devices that create a disturbance.

As such, we ask for our community’s continued support, just as we would support someone else in a similar situation. By way of analogy, in the neighborhood context, the neighborhood association routinely supports requests by community members who have issues with traffic, street lights, trees, developers, trash etc. and asks for community support, for something that will only impact their immediate pocket of the neighborhood. Similarly, here, the parallels are not dissimilar, except that instead of something beyond your control whether the instruments are available for use is entirely within the control of the school.

Finally, for your information, below please find an excerpt of the Arlington County Noise Control Ordinance. Despite its specific detail, it is commonly misunderstood. You will note that drums and other instruments are specifically prohibited when they cause a noise disturbance. Further, there are three independent prongs to the definition of “noise disturbance” as the elements are placed in a disjunctive relationship, i.e. linked by the word “or.” Therefore, what a county code enforcement inspector did or did not find when he tested the instruments for a decibel level is irrelevant. Moreover, despite your assertion to the contrary, the PTA and the school are not exempt from this ordinance or free to impinge upon our right of quiet enjoyment.

In short, per the Superintendent's direction, the discussion regarding the use of the instruments in non-school hours is closed. We continue to request that the Arlington Public Schools and/or the County remove the instruments to eliminate the noise disturbance during weekday daytime hours. We are awaiting a response to this request from these authorities. In the meantime, we would appreciate your cooperation in complying with Dr. Smith's instruction concerning non-school hours and in resolving the remaining matter.

Again, thank you for the background information.

Very truly yours,

Jonathan and Heidi


* * * * Noise Ordinance Excerpts with added emphasis * * * *


§ 15-7. Prohibited acts.

(d) It shall be unlawful for any person to operate, play or permit the operation or playing of any radio, television, phonograph, tape player, drum, musical instrument, sound amplifier or similar device which produces, reproduces or amplifies sound in such a manner as to create a noise disturbance within any nearby dwelling unit or across a real property boundary.

(emphasis added)

§ 15-3. Definitions.

(14) Noise disturbance shall denote any sound which:

a. Endangers or injures the safety or health of humans or animals; or

b. Annoys or disturbs a reasonable person of normal sensitivities; or

c. Exceeds the applicable maximum permissible noise levels as they appear in Tables I and II.

(emphasis added).

Source: Arlington County Noise Control Ordinance, available at http://www.municode.com/resources/gateway.asp?pid=11749&sid=46

____________________________

Letter from School Board Chair Mary Hynes

This page was revised on: November 6, 2006.