Wilmington board sends city's "outdoor amplified sound" interpretation back to staff

The Wilmington Board of Adjustments voted June 18 to reject the Planning Department's written interpretation of "outdoor amplified sound" and send the issue back to staff for a revised definition.

Planning Director Linda Painter had concluded that "amplified sound" means any sound "increased in volume or intensity by means of electrical power" and that the land-development code's outdoor-amplified-sound restrictions therefore apply whenever a business operates electrical amplification in an open-air setting, including partially enclosed structures such as pergolas and gazebos. Painter told the board she relied on the city's noise ordinance and common usage to reach that meaning.

"The interpretation identifies equipment operated by the associated business that is designed to increase any sound or noise in volume or intensity by means of electrical power," Painter said during her presentation. "The outdoor amplified sound provisions apply to uses of equipment to amplify sound in the open air." (Linda Painter, Planning Director)

Chill Beers LLC, operator of the Riff, had asked for the zoning interpretation after recent enforcement activity and written citations. Owner Justin Smith described how the business removed outdoor speakers and now uses an LED screen that was approved by the city as a display. He said the venue's commercial operations depend on a clear rule for whether electrical sound sources such as televisions or screen speakers are treated differently from acoustic instruments or other non-electrical sources.

"We wanted to put [the screen] up as a to show movies and sports," Smith said, describing the business's effort to replace lost live-music revenue with programming for customers. "If this interpretation is enforced as written, it would prevent us from using electricity to project sound from the LED screen the city approved. That would be a serious operational and financial problem for the business." (Justin Smith, Chill Beers/The Rift)

Opposing counsel argued the planning director's definition, taken literally, would produce an odd and unworkable result: any electrically produced sound outdoors could be treated as per se "amplified," even when well under the limits of the city's noise ordinance. Attorney Grady Richardson, representing the Riff in the appeal, told the board the city's noise ordinance already sets enforceable decibel thresholds and that a definition that equates any electrical sound with prohibited amplification would be incompatible with other ordinances and with common sense.

"If the sound coming from the screen is 50 decibels and the noise ordinance limit is 72, why would it matter whether the sound came from an electrical speaker or an acoustic instrument?" Richardson asked. "The definition as written produces an absurd result and is not harmonious with the rest of the code." (Grady Richardson, counsel for Chill Beers)

Board members spent substantial time questioning staff and the parties about legal standards and evidence. The board had earlier resolved a related preliminary question of standing: it found that a neighborhood appellant, who said he had been bothered by the venue's noise, did not present sufficient individualized evidence of "special damages" to continue as a party in the appeal.

After deliberation the board voted to reject the planning director's written interpretation as drafted and remand the matter to staff with the direction to produce a definition that avoids the absurd or unworkable outcomes the board identified. The decision does not automatically change the city's noise ordinance or buffer rules; those remain separate regulatory tools, and any future code amendments or enforcement actions will need to reflect the board's decision and, if appealed, could be subject to further judicial review.

What happens next: staff will revise the interpretation and may present a code amendment to the City Council or return for a new interpretation; parties to the appeal have the right to seek judicial review of any final administrative order.

This was an administrative appeal of a staff zoning interpretation (consolidated appeals 2144 Wrightsville Ave and 508 South 22nd/23rd St.). The board's action was procedural (an interpretation review and remand) rather than an immediate enforcement order against a specific use.