ORD 1154 03/08/2016 -_<
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"City of Choice"
ORDINANCE NO. 1154
AN ORDINANCE AMENDING CHAPTER 46 (NUISANCES) OF THE CODE OF
ORDINANCES OF THE CITY OF CIBOLO,TEXAS,RELATING TO NOISE;
REPEALING ALL ORDINANCES IN CONFLICT; PROVIDING PROVISIONS
FOR SEVERABILITY,PUBLICATION AND AN EFFECTIVE DATE.
WHEREAS, the City Council of the City of Cibolo finds that certain noise levels
affecting individuals on residential and non-residential property constitute a public
nuisance; and,
WHEREAS, the City of Cibolo, Texas, is:a home rule municipality empowered under
the Texas Local Government Code, Section 51.0.01, to-adopt an ordinance or rule that is
for the protection of the health, safety and welfare of its citizens; and
WHEREAS, Section 217.042 of the Texas Local Government Code authorizes a home
rule municipality to:define and prohibit nuisances;.and
WHEREAS; the City Council of the City of Cibolo desires to regulate said noise to be
measured at specified discernible levels to determine objective criteria for a sound
nuisance which unreasonably disturbs, injures, or endangers the comfort, repose, health,
peace,or safety of others within the limits of the City;-and,
WHEREAS, the City of Cibolo is authorized to enforce ordinances necessary to protect
health, life, and property and to preserve the good government, order, and security of the
its inhabitants as well as abatement of public nuisances;
WHEREAS,. the City Council has considered the -merits of this ordinance to establish
regulations regarding unlawful intensified or amplified noises and has determined that
this ordinance is necessary to protect the health, safety, morals, and welfare of the
community.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY-COUNCIL OF THE CITY OF
CIB.OLO, TEXAS:
1.
SECTION 1: THAT Chapter 46 Article II Sections 46-23 through 46-24 of the Code-of
Ordinances of the City of Cibolo, Texas, shall be- repealed as currently written and
amended to hereinafter read as follows:
(a) Definitions.
The following words, terms and phrases, when used in this chapter, shall have the
meanings ascribed to them in this section, _unless the context of their usage clearly
indicates another meaning:
"dB(A)" shall mean the intensity of a sound expressed in decibels read from a calibrated
sound level meter utilizing the A-level weighting scale and.the slow meter response,.as
specified by the applicable publications of the American National Standards Institute
or its:successor body..
"Emergency" shall mean any occurrence onset of circumstances involving actual or
imminent physical trauma or property damage which demands immediate action.
"Music Venue" shall mean a.commercial property where sound equipment is used to
amplify sound.
"Nonresidential property" shall mean any real property within the limits of the city
Which is not included in the definition of residential district as defined in this section.
"Person" shall mean any individual, association, partnership or corporation.
"Property .line" shall mean the line along the ground surface, and its vertical
extension, which separates the real property owned, leased or occupied by one
person from that owned, leased, or occupied by any other person and.the imaginary
line which represents thelegal limits of property of any person who owns,"leases or
otherwise occupies an "apartment, condominium, hotel or motel room., office or any
other type.of occupancy.
"Public right-of-way" shall-mean any street, avenue, boulevard, highway, road,
thoroughfare, sidewalk, alley or any other-propertywhich is owned or controlled by a
governmental entity.
"Residential District" shall mean- any district zoned for single family, multi family or
other residential use. This includes all special: and planned development districts
identified as residential unless otherwise specified within the Unified Development
Code.
"Sound equipment" shall mean a loud speaker, public address system, amplification
system, or other sound producing device.
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"Sound nuisance" shall mean any sound, which exceeds the maximum permitted
sound levels specified in this ordinance.
"Special Event" shall mean a fundraiser, service, activity, program, presentation,
meeting, (examples of which could be but are not limited to; a show, rally, class,
banquet, festival, fair, assembly, race, parade, concert, bazaar, -sporting, activity),
legacy event or other similar gathering= of persons that is open to the general public
and occurs. in a local setting at a specified date and time or range of dates and
times. This definition specifically excludes the regularly recurring meetings,.such as
the daily, weekly, or monthly gatherings of any organization.
(b) Declaration:of Findings.
The making, creation or maintenance of such loud., unnecessary, unnatural or
unusual noises which are prolonged, unusual and unnatural in their time, place and
use, affect and are a detriment -to public health, comfort, convenience, safety,
welfare and -prosperity of the residents of the city, and the necessity in the public
interest for the provisions and prohibitions hereinafter contained and enacted is
declared as a matter of legislative determination and public policy, and it is further
declared that the provisions and prohibitions contained in this ordinance are in
.pursuance of and for the purpose of securing and. promoting. the public health,
comfort,.convenience, safety, welfare and prosperity and the peace and quiet of the
city and its inhabitants.
(c) Maximum permissible.sound levels.
No person shall conduct, permit or allow any activity or sound source to produce a
measurable: sound that exceeds the: applicable dB(A) level listed below when
measured, subject to the exception stated for Residential Districts only, at the
nearest public.right-of-way to the offending.residence or business:
(1) Residential District:
a. Up to 85 decibels from 10:00 a.m. to 10:00_ p.m.
b. Up to 75 decibels at all other times.
A police officer -taking .a noisemeasurement in a residential district may take the
measurement from either the closest public right-of.-way to the offending residence
or with the consent of a complainant, may take the measurement from the property
line of the complainant.
(2) Nonresidential property: _
a. Decibel limits.for Music Venues
1. If a music venue is not located within 150 feet of a residential district-or
residential home sound equipment may be operated at the following decibel
levels:
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(a):.Up to 85-decibels at all times.
2. If a music venue is located within 150 feet of a residential district or a
residential home sound equipment may be operated at the following decibel
levels:
(a) Up to 85 decibels between 10:00 a.m. and 10:00 p.m.
(b) Up to 75decibels.at all other times.
b. Decibel limits for all other types of Non-Residential properties
1. If the property-is not located within 150 feet of a residential district or residential
home the maximum permissible decibel level for any type of sound emitted from that
,property is:,
(a) Up to 85 decibels at all times.
-2. If the property is located within 150 feet of a residential district or residential home
the maximum permissible decibel levelfor any type of sound emitted from that
property is:
(a) Up to 85 decibels between 10:00 a.m. to 10:00 p.m.
(b) Up to 75 decibels at ail other times.
Any sound that when measured at.thenearest publicright-of-way to the offending
residence or business exceeds the dB(A) levels set forth in this section:shall be
prima facie evidence of a sound nuisance which unreasonably disturbs, injures or
endangers_the comfort; repose, health, peace.or safety of others within the.limits of
the city in violation of this chapter.
(d)General prohibition.
(1) It shall be:unlawful for any person to make, assist in making;permit, continue, cause
to be made or continued or permit the continuance of any sound which exceeds the
maximum permitted sound levels specified in section(c)which unreasonably
disturbs, injures or endangers the comfort,repose,health,peace_or safety of others
within:the limits of the City and within 5,000 feet of the city limits.
(2) The.constraction, erection, including excavation, demolition, alteration,repair or
related work for any building, structure,.or site location in a residential zoning
district or non-residential zoning district abutting a residential zoning district,
excluding any inside work done in an enclosed building or structure in non-
residential zoning districts, other than: between the hours of 7:00 a.m. and 9:00 -
p.m. during the weekdays of Monday through Saturday and between the-:hours of
9:00 a.m. to 7:00 p.m. on Sunday, except in the case of urgent necessity-in the
interest of public safety,for which a permit shall be obtained from the Chief
Building Official or his/her designee. The hours set forth will encompass-schools
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and public locations in general,however there may be more restrictive hours
imposed by the City as deemed appropriate.
(3) The delivery, unloading, or depositing of concrete, lumber, dirt, base, or any
construction materials for any site location, building or structure in a residential
zoning district or non-residential zoning district abutting a residential zoning
district, other than: between the hours of 7:00 a.m. and 9:00 .p.m. during the
weekdays of Monday through:Saturday and between the hours of 9 a.m. and 7
p.m. on Sunday, except in the case of urgent necessity in the interest of public
safety; for which-a permit shall be obtained from the Chief Building Official or
his/her designee. The hours set forth will encompass schools and public locations
in general, however there may be more restrictive hours imposed .by the City as
deemed-appropriate.
(4) The creation of unreasonably loud, disturbing and unnecessary noises in
connection with the loading or unloading of any vehicle, the opening and
destruction of bales, boxes, crates and containers or the sounding of any bell or
gong attached to any building located on any premises that disturbs the quiet or
repose of persons occupying adjoining property or those occupying property
across a public road right=of--way, alley or other public right-of-way, and within a
two-hundred (200)foot radius.
(5) It is unlawful for a person to operate any radio, speaker, sound amplifier or similar
device located within or upon a motor vehicle at a volume that is audible at a
distance of more than 50 feet from the vehicle. The fact that the sound is audible
at a distance of 50 feet from the vehicle is prima facie evidence of a violation of
this subsection. Decibel readings are not required for enforcement of this
provision.
(6)The acts enumerated in the following sections of this article, among others, are
declared to be sound nuisances which are unreasonably loud, irritating, disturbing, or
excessive sounds in violation of this article, but .such enumeration shall not be
deemed to be exclusive.
(e) Exceptions.
The following_exceptions shall apply to any offense established in this chapter:
(1) The emission of any sound was for the purpose of alerting persons to the
existence of an emergency, danger or attempted crime.
(2) The sound-was produced by an authorized emergency vehicle.
(3) The sound was produced by emergency work necessary to restore public utilities,
or to restore property to a safe condition, or .to protect persons or property from
imminent danger, following a fire, accident or natural disaster..
(4) The sound was generated:
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a. By a parade and spectators and participants on the parade route during a
permitted parade;
b. By spectators; participants, or hosts at a lawfully scheduled amphitheater
event;
c. By spectators, participants, or hosts of any special event, as defined by this
code. For purposes of this exception from prosecution, the use of this special
event affirmative defense shall be limited to any event which occurs three (3)
times or less per year at the same location regardless of the identity of the
event sponsor. This provision does not limit the number of lawfully allowed
special events that can be held at a location; or
d. Any governmental entity,.as defined by Local Government Code §271.021
as it may be amended from time to time, specifically including, but not limited
to the City of Cibolo, and public schools, as well as private schools. Post
secondary institutions. and schools of higher education and their spectators,
functions and regular activities.
(5) The sound was .produced by aircraft in flight or in operation at an airport, or
railroad equipment in operation on railroad rights-of-way.
(6) The sound was produced by operating or permitting the operation of any
mechanically powered saw, drill, sander, router, grinder, lawn or garden tool,
lawnmower; or any other similar device used between the hours of 7:00 a.m. and
8:00 p.m. and which .device did -not produce a sound of 85 dB(A) or greater when
measured from the nearest residential property where the sound is being received
and was used for the maintenance or-upkeep of the property on which it was used.
(7) Th.e sound was.produced by the operation of any air conditioning unit which did.
.not produce a sound of 85 dB(A) or greater on residential:property or 85 dB(A) on
nonresidential property, when measured at or near 15 feet from the air conditioning
unit producing the sound being measured.
(8) Amplifiers used on vehicles to attract patrons that are operated by ice cream and
snow-cone vendors that produce jingles or music from 10`.00 a.m. to 8:00 p.m. However,
such amplified jingles or music shall not be done in a loud manner so as-to be offensive
to the ordinary sensibilities or a reasonable and prudent person.
(9) The use and operation of an amplified, mechanical bell system in connection with the
use and occupancy of a church 'structure, school structure, educational structure, or
governmental structure. However, such systems shall not be.used.or:operated.in a manner
so as to be offensive to the ordinary sensibilities of a reasonable and prudent person.
(10) Sound caused by agricultural work when the sound is associated with the .care,
maintenance and Harvest of crops and livestock. _
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(f) Method of sound measurement.
Whenever portions of this chapter prohibit noise over a certain decibel limit,
measurement of said noise shall be made with a decibel. meter chosen by the Chief
of Police which meets the standards prescribed by the American National-Standards
Institute at the time the device was purchased. The instruments shall be maintained
in calibration and good working order. Calibrationcorrections shall be employed in
_meeting the response specifications prior to every sampling of.noise. Measurements
recorded shall be taken so as to provide an accurate representation of the noise
being measured. Noise measurements shall be a-minimum of thirty (30) seconds in
duration.
The microphone shall be positioned so as not to create any unnatural enhancement
or diminution of the measured noise. A windscreen-for the microphone shall be used.
Violationswill be determinedbased on the highest registered reading in the
measurement period. All measurement levels will be inclusive of any ambient noise
that exists at the time-of the measurement.
(g) Enforcement and penalties.
(1) Any person, firm, or-corporation who violates any provision of this chapter is
guilty of a misdemeanor and upon conviction is punishable by a fine as proscribed
below:
a. A fine not to.exceed $100.00 for the firstoffense plus court-costs;.
b. A fine not to exceed $250.00 for the second offense plus court costs;
c. A fine not to exceed $350.00 for the third offense plus court costs; and
d. A fine not to exceed $500.00 for the fourth and any subsequent
offenses plus court costs.
(2) Any person, firm, or corporation who obstructs-, impedes; or interferes. with a
representative of the city, with a representative of a city department, with monitoring
equipment, .or with a person who has been ordered to abate a situation pursuant to
this chapter and who is lawfully engaged in such abatement is guilty of a
misdemeanor and upon conviction is punishable by a fine not to exceed $500.. Each
act of violation and each day of violation is considered a separate violation.
(3) In addition to proceeding under authority of subsections (a) and- (b) of this
section, the city is entitled to pursue all other criminal and civil remedies to which it is
entitled under authority of statutes or other ordinances against a person, firm, or
corporation that remains in violation of this chapter.
(4) Only warning citations may be issued from the effective date of this ordinance
through May 1, 2016. so that an educational effort by the City of Cibolo may be
conducted to inform the public about the importance and requirements of this
ordinance.
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(h) Identification of violator.
The persons responsible for violations of this chapter are identified as follows:
(a) At residential district. Any resident present at the time of the offense, any property
owner, or any guest or trespasser with the ability to control the level of noise at the
time of the offense when no resident is present at the time of the offense.
(b) At nonresidential property. Any business owner, operator, manager, employee in
charge, and all persons in control or in possession of the noise nuisance generating
instrument or property at the time of the offense.
(c) At any location with an unattended noise nuisance producing machine, device,
instrument or combination of same. Any person responsible for a violation under
this section who leaves unattended any machine, instrument, device, animal,.or any
combination of same, which thereafter commences producing noise.in violation of
this chapter.
(i) Permits of variance.
(1) Prior to any violation of this ordinance, a person may seek a variance under this
ordinance.
(2) The City Manager, or designated representative is authorized to grant one
variances for relief of any provision in this chapter on-the basis of undue hardship in
cases
where:
(a) The sound source will be of short duration and the -activity cannot be conducted
in a manner as to comply with this article.
(b) Additional time is necessary for the applicant to alter or modify their activity
or operation to comply with this article.
(c) No reasonable alternative is available to the applicant.
(d) The City Manager or designated representative may .prescribe any reasonable
conditions or requirements deemed necessary to minimize adverse effects.
(3) Evidence of a subsequent application for variance, the granting of a variance
subsequentto receiving a violation, or any pending appeal under this ordinance shall
be inadmissible in a criminal prosecution under this ordinance.
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Q) Appeals.
(1) Any applicant who request more than one varianceor has been denied a
variance or whose variance has been suspended shall: have the right to a hearing
before the City Council.
(2) Requests for a hearing shall be made in writing and received by the City
Secretary within ten (1 0) days of the date of the denial or the issuance date of the
notice on suspension. The City Secretary shall schedule a.-hearing- before the City
Council within thirty (30) days of.receipt of the request.
(3) The City Council shall have the authority to review all pertinent files and
information regarding the applicant, which are in the custody of the City. Additionally,
the City Council shall have the authority to accept written:and verbal testimony from
any director, applicant, and interested citizens.
(4)The City Council shall have the authority to assess whether the City acted
properly within its powers under this chapter in its denial or suspension of the
variance. The majority vote-of the City Council shall determine whether to uphold or
reject the City's action. Upholding the action of the City shall affirm the denial or
suspension. Rejection of the City's action shall automatically reinstate a suspended
variance.
(5) No person whose permit has been denied or suspended shall create or allow the
creation of the noise in dispute prior to final determination by the City Council.
SECTION 2: REPEALER.
All Ordinances or parts thereof in conflict herewith are repealed to the extent of such
conflict only. All provisions of the Code of Ordinances of the City of Cibolo not herein
amended or repealed shall remain in full force and effect.
SECTION 3: SEVERABILITY.
It is hereby declared to be the intention of the City Council that the sections,
paragraphs; sentences, clauses and:phrases of this Ordinance are severable and, if
any phrase,. clause, sentence, paragraph or section of this Ordinance should be
declared. invalid by the final judgment or decree of any court of competent
jurisdiction; such invalidity shall not affect any of the remaining phrases, clauses,
sentences, paragraphs and sections of this Ordinance.
SECTION 4. EFFECTIVE DATE AND PUBLICATION:
This Ordinance shall become adopted and effective after being published twice in the
City of Cibolo's:official-newspaper of record:
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AND IT IS SO ORDAINED.
PASSED AND APPROVED this 8t' day of March 2016.
APPROVED:
Mayor Allen Dunn
ATTEST:
Peggy Cimics, City Secretary
City Attorney
Approved as to orm
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