Published: Feb 18, 2013 05:20 PM
Modified: Feb 19, 2013 08:58 PM
DURHAM - A judge denied a motion for a temporary restraining order Monday against a church whose neighbors are fed up with its joyful noise.
The neighbors’ lawsuit against Newhope Church, though, remains “very much ongoing,” said their attorney, David McKenzie. And Newhope pastor Benji Kelley is due in court Tuesday , on a misdemeanor charge of violating the city’s noise ordinance.
Superior Court Judge George B. Collins issued his ruling Monday, based on a Feb. 1 court hearing.
Newhope Church, one of the country’s fastest-growing churches, is at 7619 Fayetteville Road, near The Streets at Southpoint mall. The plaintiffs, who live in the nearby Hills at Southpoint subdivision, say the church’s amplified music constitutes a nuisance and trespass, harming their property values and their ability to find peace and relaxation in their own homes.
Attorneys for the church contend that any prohibitions on Newhope’s music would violate the First Amendment, and that the sound level of Newhope’s music complies with the city noise ordinance. The controversy has gone on for almost two years, and attempted mediation in 2012 failed.
The plaintiffs had sought a restraining order to temporarily quiet the music, but Collins said in his ruling that the plaintiffs had not shown “that there is a likelihood of their success (in the lawsuit) on the merits” sufficient to support the motion.
A temporary restraining order is a short-term measure, issued to meet an immediate need until a hearing is held on a preliminary injunction. McKenzie said the hearing on his clients’ motion for the injunction is scheduled April 8. Subsequently, they want a jury trial to assess and impose compensatory and punitive damages.
In 11 years, Newhope Church has grown dramatically. It was the country’s fifth fastest-growing church last year, according to Outreach magazine. More than 3,000 people attend Sunday services, according to its website.