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Man’s barking dogs did not violate noise ordinance

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An Indianapolis man will be able to keep all four of his dogs after the Indiana Court of Appeals found that complaints by just one neighbor about barking didn’t support finding he violated a local noise ordinance. The trial judge had ordered he get rid of two of his dogs.

Wayne Brandt and his mother Betty Wilson have four dachshunds and live two lots down from Marilyn Annette Moore. Moore, who would frequently call the authorities to complain about her neighbors or activities in the neighborhood, kept a log of the barking by the four dogs. She called on more than one occasion about the dogs’ barking interfering with her ability to enjoy her property.

A bench trial was held on whether Brant violated Section 531-204(a) of the Revised Code of the Consolidated City and County, which says “It shall be unlawful for a person to own or keep any animal which by frequent or habitual howling, yelping, barking, screeching, other vocalization or otherwise shall cause serious annoyance or disturbance to persons in the vicinity.”

Moore was the only neighbor to make complaints or testify negatively about the dogs. Other neighbors said the barking did not bother them. The trial court found against Brant and ordered, per the mandatory provisions of Section 531-728 of the Revised Code, that he is limited to own two dogs and that they be spayed or neutered.

In Wayne Brant v. City of Indianapolis, 49A05-1201-OV-12, the Court of Appeals reversed on the grounds that the plain, ordinary usual meaning of the term “persons” as used in the ordinance means that just one neighbor’s complaints are insufficient.

The appellate court also addressed the city’s contention that the interpretation of “persons” to mean more than one person would run afoul of the guarantee of equal protection under the 14th Amendment because this interpretation would ignore the household of a single owner. But the City-County Council may not have wished to invoke its civil penalty authority for a noise ordinance unless multiple citizens were negatively impacted, such that the noise constituted a public, rather than private, nuisance, Judge John Baker wrote.


 

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