Loading...
Ord 1371 07/26/2022 Noise l or C & �l`"111j11O 1111ali'/mmaap / .'� e 0 a T � ,+ !'' aaaamnittl0,10�11`" rex +�5 "City of Choice" ORDINANCE NO. 1371 AN ORDINANCE AMENDING THE CODE OF ORDINANCES OF THE " CITY OF CIBOLO, TEXAS, CHAPTER 46 - NUISANCES, ARTICLE II NOISE TO REVISE REGULATIONS RELATING TO . CERTAIN COMMERCIAL USES INVOLVING LOUD NOISE; DECLARING A PUBLIC PURPOSE; INCORPORATING RECITALS; PROVIDING A REPEALER AND SAVINGS CLAUSE; PROVIDING FOR SEVERABILITY; AND SETTING.AN EFFECTIVE.DATE. WHEREAS, the. City of Cibolo, Texas (the ."City") is a home-rule municipality authorized by state law to adopt and enforce the provisions of this Ordinance; and WHEREAS; the City: Council finds =the making, creation, or maintenance:'of suchloud, unnecessary, unnatural or unusual noises which:are prolonged, unusual and unnatural in their time,place, use or affect to be detrimental to public health, comfort, convenience, safety, welfare and prosperity of the residents of the city; and WHEREAS, the City Council finds the amendments described herein are necessary :and appropriate to"secure the health,.=comfort;.convenience, safety, welfare, and prosperity of the public and to facilitate equitable enjoyment of peace and quiet by inhabitants of the city;-and WHEREAS, a-public hearing was held to discuss the amendments described herein, the public hearing being" conducted by City Council on July 26, 2022 in the Cibolo :City Hall-for the purpose of:providing all interested persons the opportunity to be heard concerning the:proposed amendments described herein; and WHEREAS, legal notice notifying the public hearing on the property proposed amendments was posted on the City 's official website and published in the Seguin Gazette, a newspaper:of general circulation in the City of Cibolo, on July 6,2022; and WHEREAS, the. City Council finds that the proposed amendments to the City' Code of Ordinances are consistent,with the City's Comprehensive Master Plan; and NOW THEREFORE, the Cibolo City Council.has considered the effect of these amendments and has determined them to be appropriate,necessary and in the public interest; NOW, BE IT ORDAINED BY THE CITY..COUNCIL 'OF. THE CITY OF :CIBOLO, TEXAS:. 1 AMENDING NOISE ORDINANCE 7362/8 DM#287648 SECTION 1. AMENDING -CHAPTER 46, -ARTICLE II — NOISE. From and after the effective date, Chapter 46 —NUISANCES, Article II -NOISE.of the City's Code of Ordinances shall be revised and shall hereinafter read as follows: Chapter 46—NUISANCES ARTCLE II. -NOISE Sec. 46-23. General regulations. (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 or set of circumstances involving actual or imminent physical trauma or property damage which demands immediate action. Music Venue shall:mean a commercialproperty where sound equipment is used to amplify sound, and may include Indoor Entertainment,:Outdoor Sports and Recreation (Light),-Outdoor. :Sports and-Recreation(Intensive) or other commercial use. 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 the legal 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 property which is owned or controlled by a governmental entity. Residential district shall mean any district zoned fo'r 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 loudspeaker; public.address system, amplification system, or other sound producing device. Sound.'nuisance shall mean any sound, which exceeds.the maximum permitted sound levels specified in this section. 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 2 AMENDING NOISE ORDINANCE 7362/8 DM#287648 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 section:are in pursuance of f 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: From and after the effective date of-this =ordinance,-all existing Music-Venues and any such enterprise established thereafter-shall be subject'to the requirements of this Article. .(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, subj ect 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.1.0:00 a.m.,to 10:00 P.M. b. Up to 75 decibels at all other times. A police officer taking a noise measurement. 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 no property line of a Music Venue.is not located within 150 feet of any property line.of a residential district or residential home, sound equipment may be operated at the following decibel levels without a Special Music Venue Permit issued under this Chapter: - (i) Up to 85 decibels at all times. 2. If s property line of a Music Venue is located within 150 feet of ani :.property line of a residential district or a residential home, sound equipment may be operated at the following decibel levels without a Special Music - Venue Permit"issued under this Chapter: (i) Up to 975 decibels between 10:00 a.m. and 10:100 p.m. , (ii) Up to-765 decibels at all other times. 3." If a Music Venue is located within 150 feet of a residential district or a" residential home, as described in the preceding subsection, sound equipment may be operated at the following decibel levels and durin the he specified 3 AMENDING NOISE ORDINANCE 7362/8 DM#287648 days and times permitted with a Special Music Venue.Permit issued under this Chapter:: (i) Up to 75 decibels between 10:00 a.m. and 11_:00 pm. (ii) Up to-65 decibels at all other times. (iii) Live outdoor music is permitted on Fridays and 'Saturdays and specified Federal holidays as.noted in the Special Music Permit b. Decibel limits for all other types of nonresidential properties. 1. If the-no property line of the subject property is not located within 150 feet of any property line of a residential district or.residential, home, the maximum permissible decibel level for any type of sound emitted from that subject property is: (i). : Up to.85 decibels at all times. 2. If t any property line of the subject property is located within 150 feet of any property'line of a residential district or residential home, the maximum permissible decibel level-for any type of sound emitted from that subject property is: (i) Up to 975 decibels between 10:00 a.m.-and 10:00 p.m. (ii) Up to-765 decibels at all other times. Any sound that when:measured at the nearest public right-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 continuedor 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 construction, erection, including excavation, demolition, alteration, repair or related work for any building, structure, or site location ih a residential zoning district or nonresidential zoning district_abutting a residential zoning district, excluding any inside work.done in an enclosed building or structure in nonresidential 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 and public locations in general, however there may be more restrictive hours imposed by the city as deemed appropriate. 4. AMENDING NOISE ORDINANCE 7362/8:DM#287648 (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 nonresidential zoning district abutting a residential zoning district, other than: between the hours of 7:00 a.m. and 9:00p in. 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-foot radius. (5) Itis 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 ata distance of 50 feet from ahe 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: (I.). 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 protectpersons or property:from imminent danger;following a fire, accident, or natural disaster. (4) The sound was.generated: 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 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 5 AMENDING NOISE ORDINANCE 7362/8.DM#287648 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)' The 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 ina. 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: (f) Method of sound measurement. Whenever portions of this chapter prohibit noise over a certaindecibel 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. Calibration corrections 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 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. Violations -will be-determined based 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. 6 AMENDING.NOISE ORDINANCE 7362/8 DM#287648 (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 first.offense 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, orcorporation 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 situationpursuant 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 $500.00. 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) From and after the effective date of the most recent ordinance amending? this Article, all Music Venues shall immediately become subject to the current requirements of this Article. For thigy (30) days following the effective date .of said ordinance; only warning citations shall be issued to persons, other than persons involved in the ownership or operation 6f-a Music Venue, for any:alleged violation:of a provision of this Article which was amended by said ordinance. (h) Identification of violator. The :persons -responsible' for violations .of this chapter -are identified as follows: (l) 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. (2) 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. (3) 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) n,,,.mits o fwa.i,,ne . Variances. 7 AM[ENDING.NOISE ORDINANCE 7362/8:DM#287648 (1) :Prior to any violation of this section, a person may seek a variance under this section. .(2) The city manager or designated representative is authorized, to grant a variance 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; or, c. No reasonable alternative is available to the applicant. (3)The city manager or designated representative may prescribe any reasonable conditions or requirements deemed necessary to minimize adverse effects, including providing an expiration date. (4) . Evidence of a subsequent: application for variance, the granting of a variance subsequent to receiving- a violation, or any pending appeal under this section shall be inadmissible in a criminal prosecution under this section. O Specidl Music Venue Permit. (1) The owner of.a lot located within a Non-Residential District;" Old Town Mixed Use Overlay District, or Town Center Mixed Use Overlay District may.submit an application to the chief of police to request a.Special Music Venue Permit to allow a Music.Venue located thereon to generate noise in-excess of the applicable decibel limits and/or outside of the kmLporal restrictions:prescribed'by this Chapter, up to a maximum 4 85 deeib_�, subiect to any:terms or conditions described in the permit. (2) An application for a permit required by this section must include: a. The .name, address, telephone number, and title of the individual filing an application on behalf of a Music Venue; b: The business name, address, and telephone number of the Music Venue. c. The name, address, and telephone number of the business's_ registered agent on file with the Texas Secretary of State; A: An application fee of$50.00; . e. A-statement that the.outdoor Music Venue has an approved decibel meter on-site; and f. A site plan of the property drawn to scale clearly delineating the location of the. music performance area (stage orrg ound), its orientation facing toward the public street in front of the business, location of sound barrier:material to the sides and back of music performance area; g. Product specifications of the proposed sound barrier material that demonstrates it . is designed to absorb sound so as to lessen the sound level to the.sides and behind , the music performance area (stage orrte). In addition, a schematic of how this material will be installed to be durable and protected from the elements, and 8 AMENDING NOISE ORDINANCE 7362/8.DM#287648 hf. A statement that the applicant has obtained a copy of this chapter and section and agrees to comply with all applicable requirements, including ggy terms or conditions set forth'in a Special Music Venue Permit. . (3) Armitting Process. The chief of police (or his/her designee) shall be responsible for the review of permit applications and the issuance of permits,subject to the requirements of this chapter, and shall render a decision within thirty(30) days of receiving a permit application. a. The chief of police (or his/her designee) shall review each permit application and may issue a permit-to the applicant only if the.application satisfies all requirements set forth in this subsection and he/she determines that issuance.of the permit is not likely to result in a public nuisance. He/she.may conduct an inspection of the subject property to verify compliance with this subsection. b.' _ A permit issued under this subsection may be valid fora period of time not to- exceed one (1) year following the date on which the perrnit was issued. Unless the permit . specifies an earlier expiration date, all permits.issued under this.subsection'shall expire on the first anniversary of the date on which the permit was issued. C. The chief of police (or his/her designee) may conduct additional inspections.of the .premises at any time to verify compliance with this cha tep r. A:permit issued under this subsection shall not excuse gLiy erson from civil or criminal liability relating to violations of this chapter. d. The permit applicant shall post a copy of a permit.issued under this subsection : inside the premises of .the business so that it is, visible to persons:upon entering_the premises. e. In issuing permit under this subsection, the chief of police (or, his/her designee): may,also require compliance with additional terms.and conditions deemed necessary and appropriate by the chief.of police (or his/her designee) including but. not limited to restrictions relating to decibel levels; "time/date limitations, and/or improvements to the , premises e.g. soimd barriers adjacent to music performance area (stage orrg ound),. orientation/height of music performance area(stage orrte), fence/wall height, etc. f. The chief of police may suspend or revoke a permit issued under this subsection, or impose any applicable civil or criminal penalty, if he/she determines that a violation of this chapter or of the terms and conditions of a permit issued under this subsection has occurred at-a Music Venue. g. The chief of police shall revoke a permit issued under this subsection if he/she determines:that three (3) or more violations have occurred at a Music Venue within the preceding. twelve .(12) month period; in addition to any other. applicable remedies or penalties. For,pp of this subsection, 'a violation is deemed to have occurred if the violation results in a conviction or deferred adjudication. h. A permit applicant whose permit is revoked or suspended shall not be allowed to apply for any additional permits until at .least one (1)year:has passed since the date on which the permit was revoked or suspended. 9 AMENDING NOISE ORDINANCE 7362/8.DM#287648 i. : In addition to any applicable penalties unposed under Subsection (g) of this chapter, a permit holder who violates the terms or conditions of a permit.issued under this chapter shall be guilty of a.misdemeanor and upon conviction is.punishable by a fine not to exceed$500.00: _(jjk)Appeals. (1) a whose varianee has been suspended AU gpplicant who has been denied a variance or Special Music Venue Permit, or whose variance or permit has been suspended or revoked, shall have the_right to appeal the decision at a hearing before the city council. : A decision to grant a variance or permit under.this cha tep r maybe .appealed by gEY person accordingto o the procedures set forth in- this subsection. = (2) Requests for a hearing shall be made:in writing and received by the city secretary within ten days of the date-of the approval or denial of a variance or permit, or the issuance date of the notice of suspension or revocation of a variance or permit. The city secretary shall schedule a hearing before the city. council within 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: final decision-making authority to determine.whether the city acted properly within its powers under this chapter in its approval, denial., suspension,.or revocation sttspenslo of the permit or variance: The majority, vote of the city council shall determine whether to uphold or e4;reverse the city's. action. or-revoked var-tanee or-pefmit. (5) No person whose variance-or 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. NOTE: All remaining sections of the City Code shall remain unchanged. SECTION,7. PUBLIC PURPOSE. The City Council finds that the amendments to the City's Code of Ordinances are in the public interest and are necessary to promote the health, safety and welfare of the public. SECTION 8. INCORPORATING RECITALS. The City Council approves the recitals hereto and incorporates them herein as findings of fact. SECTION 9. REPEALING ORDINANCES IN CONFLICT.AND SAVINGS CLAUSE. All ordinances or parts of.ordinances in conflict herewith are hereby repealed to the extent of such-conflict with all remaining portions not conflicting being saved from repeal herein. In the 10 AMENDING NOISE ORDINANCE 7362/8 DM#287648 event of a conflict between any provision of this Ordinance and other local law, including the City's Unified Development Code, the provisions of this Ordinance shall control.. SECTION. 10. SEVERABILITY. If any section, subsection, sentence, clause or phrase of this. ordinance is for.any reason held to be unconstitutional or illegal, such decision shall not affect the validity.of the remaining sections of this ordinance. The City Council hereby.declares.that it would have passed. this ordinance,. and each, section, subsection, clause,.or phrase thereof, irrespective of the fact that any one.or more sections, subsections, sentences,clauses or phrases be declared void. SECTION 11. EFFECTIVE DATE. The Ordinance shall be effective immediately following publication as,required by law. From and after the effective date of this Ordinance, all existing commercial uses, including Music Venues, and any:such enterprise_established-thereafter shall become immediately subject to the requirements of this Ordinance. ORDERED this 26 day of July 2022. c STOSH B07YLE Mayor ATTEST: PEGGY CIMICS, TRMC City Secretary APPROVED AS TO FORM: D R C' Attorney. 11 AMENDING NOISE ORDINANCE 7362/8-DM#287648