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RPVCCA_SR_2010_08_03_14_Noise_Ordinance_AlternativesHONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL NOISE ORDINANCE ALTERNATIVES CAROL W.LYNCH,CITY ATTORNEY AUGUST 3,2010 MEMORANDUM TO: FROM: DATE: SUBJECT: REVIEWED BY:CAROLYN LEHR,CITY MANAGER aJL- RECOMMENDATION Review this report and provide direction to Staff to add some additional provisions to the Municipal Code to strengthen the City's regulation of noise within the City. BACKGROUND Mayor Wolowicz and Mayor Pro Tem Long have expressed interest in discussing the adoption of an ordinance to establish more comprehensive noise controls in the City. Noise ordinances are typically drafted using either a descriptive "reasonableness"standard with no specific decibel (sometimes referred to as "dBA")standards or with very specific decibel standards that define acceptable or unacceptable noise levels.This report analyzes the advantages and disadvantages associated with each type of ordinance, followed by a summary of the City's existing Municipal Code provisions related to noise regulation. EXECUTIVE SUMMARY Although decibel standards appear to be more objective and enforceable,enforcement actions often are unsuccessful because of challenges to the evidence supporting the government's case on the grounds that the noise measurement equipment was not properly calibrated or the personnel operating the equipment were not properly trained. Due to the costs associated with obtaining the equipment,ongoing maintenance of the equipment,and training of Staff and Sheriff's Deputies,Staff recommends that if the City Council wants to adopt additional noise regulations,that a descriptive nuisance-based standard be utilized rather than a decibel-based approach. DISCUSSION Local governments are often faced with the question of how best to regulate noise in the community to protect the general health,safety and welfare of the City's residents. Enactment of such regulations is well within the City's police powers,but the manner of regulation varies among different jurisdictions.For purposes of this report,noise 14-1 Memorandum:Noise Ordinance Alternatives August 3,2010 Page 2 of 7 regulations are divided into two categories:those with "reasonableness"standards and those with decibel-specific standards. Regulations with "Reasonableness"Standards Many jurisdictions adopt noise regulations based upon a "reasonableness"standard.Such regulations prohibit noise that is "unreasonably loud,""unusual,""disturbing,""loud and raucous"or "excessive."Although such ordinances could be subject to challenge on the basis of vagueness,such challenges have been rejected by the courts,if the ordinance gives fair notice ofthe practice to be avoided,and provides reasonably adequate standards to guide enforcement.Courts tend to find that terms used in an ordinance are not impermissibly vague if their meaning can be objectively ascertained by reference to common experiences of mankind.Provided it is drawn neutrally (that is,without reference to the content of the sound)and narrowly enough to guide enforcement,an ordinance prohibiting "unreasonably loud"noise will likely survive any vagueness or overbreadth challenge to its constitutionality. The specific language of any descriptive noise ordinance may leave the ordinance open to a vagueness challenge.However,if properly drafted,such an ordinance would place the reasonable person on notice of the conduct thatis prohibited.Courts have overwhelmingly refused to find descriptive ordinances impermissibly vague.In fact,the United States Supreme Court has upheld against vagueness attacks ordinances forbidding "loud and raucous,,1 noises that "disturb or tend to disturb the peace and good order"or noises that disturb schools in session.2 Likewise,California courts have upheld ordinances prohibiting "excessive or unusual noise.,,3 In addition,courts have found that the mere existence of a more scientific way of measuring sound does not require the use ofthat scientific metric in a noise ordinance.4 Thus,the fact that it is possible to make an ordinance more precise by including a specific decibel standard does not,by itself,prevent a City from enacting the more general, descriptive ordinance prohibiting "unreasonably loud"or similarly described noise. As for the disadvantages of employing this type of regulatory scheme,there is always the possibility that such a standard will be challenged based upon its alleged vagueness. Despite case law affirming the constitutionality of noise ordinances employing descriptive regulations,a court still could find a specific ordinance too vague,depending on the 1 Kovacs v.Cooper,336 U.S.77,79,89 (1949). 2 Grayned v.City of Rockford,408 U.S.104,107-08,112 (1972). 3 Smith v.Peterson,131 Cal.App.2d,241,242 (Cal.Ct.App.1955). 4 Smith,131 Cal.App.2d at 249 ("[i]t may be that physicists have established definite standards of loudness of sound and means of measuring it,but this does not mean that such laboratory operations must be carried out by traffic officers on the highway where violators of this statute must be found and the evidence against them obtained.") 20100803 SR Noise Ordinance Alternatives.doc 14-2 Memorandum:Noise Ordinance Alternatives August 3,2010 Page 3 of7 language that is used.However,since several descriptive ordinances have been upheld, there are numerous examples that can be used as models in drafting provisions to be added to the Rancho Palos Verdes Municipal Code. Regulations with Decibel Specific Standards Many jurisdictions have opted to regulate excessive noise by adopting ordinances that prohibit the creation of sound exceeding a certain level,typically measured in decibels, from a particular location,such as the property line or an exterior wall of an adjacent structure. The clear benefit of such a regulatory scheme is the fact that decibels can be measured with relative precision,allowing staff to clearly identify whether a particular noise event exceeds the permitted level.The limits on decibel emission would be written into the ordinance,and because they are easily understood,citizens and others are on notice of the standards. However,a number of potential problems arise with such a regulatory scheme.First, regulations that set a specific decibel threshold may have the unintended effect of prohibiting otherwise reasonable noises.For example,a regulation that prohibits the making of noise that exceeds ten decibels above the ambient level in residential zones may prohibit noise resulting from children playing.The City could create exemptions for certain noises,but it may be difficult,considering the limitless number of sounds that occur. These regulations may also be subject to a challenge based on arbitrariness,since they require that the City specify a number of decibels,and establishing such a number necessarily involves some choice. Another potential drawback to enacting this type of regulation is the equipment that is required to accurately measure decibels.In addition to the necessity of having a sound level meter and other appropriate hardware,the City would need to maintain the equipment on a regular basis in order to verify its accuracy.And,in order to determine if the standard is being exceeded,the equipment will have to be made available at the site of the noise complaint,which from a practical standpoint may be problematic with short noise events,or events that have ceased by the time the equipment arrives at the scene.Further,the City would need to hire qualified staff to measure decibel output and enforce the ordinance,or existing City staff would require training in the use of the equipment.This would include training of Sheriff's Deputies,since they are likely to be called to address noise complaints involving activities such as loud parties. Because the accuracy of sound level tests is affected by factors including background noise,weather,wind velocity,and the direction of the sound, City staff and Sheriff's 20100803 SR Noise Ordinance Alternatives.doc 14-3 Memorandum:Noise Ordinance Alternatives August 3,2010 Page 4 of7 Deputies would need to be trained in factors affecting sound measurement.Defects in any of these requirements opens any enforcement action that is based upon such evidence to legal and evidentiary challenges regarding the validity of the facts upon which a violation is asserted. Thus,while noise ordinances using a decibel-based standard seem attractive because of their precision,they present a number of drawbacks due to the cost of obtaining equipment,keeping the equipment properly calibrated,and the cost of providing the training to City Staff or Deputies who will be using the equipment.For these reasons, neither Staff nor the local representatives of the Sheriff's Department recommend a decibel-based standard to deal with sporadic excessive noise,such as from parties or the operation of electronic equipment. EXISTING NOISE REGULATIONS The Rancho Palos Verdes Municipal Code currently contains a number of separate provisions that regulate or limit noise production in the City.These provisions include the following: Code Section Topic 6.04.060 Prohibition on persistent animal noises that disturb the peace. 8.20.120 Noise Controls applicable to solid waste collection 8.24.060 A "It is unlawful for any person owning,leasing,occupying or having charge or possession of any property in the City to cause,or to permit,or to maintain thereon any condition which ...results in substantial detriment to the comfortable enjoyment of life or property of others in the immediate vicinity thereof." 9.24 Unruly Parties and Gathering;recovery of law enforcement expenses 9.32.040 Prohibition on Willfully making any loud and raucous noise at or within 300 feet of any residence which is intended to harass,threaten or intimidate any person living therein (residential picketinq) 10.04.040 Limitation of off-road vehicle operation that disturbs the peace 17.06.020 Attached Unit Development Standards to attenuate noise and vibration 20100803 SR Noise Ordinance Alternatives.doc 14-4 Memorandum:Noise Ordinance Alternatives August 3,2010 Page 5 of? Code Section Topic 17.08.030 C.Home occupation standards prohibiting activities injurious to neighboring properties for reasons of noise 17.12.030 F.Limitation on commercial uses regarding deliveries,trash pick-up,parking lot trash sweepers,operation of machinery or mechanical equipment can exceed sixty-five (65)dBA, as measured from the closest property line shall only be allowed on commercial properties which abut a residential district,between the hours of seven a.m.and seven p.m., Monday through Sunday. 17.26.020 E.Institutional Zone permitted uses;ancillary uses only if adverse noise impact (and other impacts)will not result. 17.26.040 F.Institutional Zone-deliveries,trash pick-up,parking lot trash sweepers,operation of machinery or mechanical equipment can exceed sixty-five (65)dBA,as measured from the closest property line shall only be allowed on institutional properties which abut a residential district,between the hours of seven a.m.and seven p.m.,Monday through Sunday,unless modified by a CUP 17.28.040 I Cemetery Zone-deliveries,trash pick-up,parking lot trash sweepers,operation of machinery or mechanical equipment can exceed sixty-five (65)dBA,as measured from the closest property line shall only be allowed on cemetery properties which abut a residential district,between the hours of seven a.m.and seven p.m.,Monday through Sunday,unless modified by a CUP 17.40.070 D.Automotive Service Stations Overlay Control District - business hours restrictions and limitation on noise to 65 dBA at property line(s)shared with residential property; mechanical car washes not to exceed 65 dBA at property line of any adjacent residential property 17.48.030 E.3.b 65 dBA limitation on minor structures and mechanical equipment 17.58.020 A.9.;B.11.Recycling Centers -noise levels limited to no more than 65 dBA as measured from closest property line 17.58.030 C.9.Recyclable material collection areas -adjacent development and uses to be protected from noise impact 17.60.050 Conditional Use Permit Standards and conditions to protect aqainst noise impacts 17.62.060 Special Use Permit Standards and conditions to protect against noise impacts 20100803 SR Noise Ordinance Alternatives.doc 14-5 Memorandum:Noise Ordinance Alternatives August 3,2010 Page 6of7 Code Section Topic 17.74.070 A.12.Residential Planned Development Permit -Special Use Permit Standards and conditions to protect against noise impacts 17.76.040 G.4.Grading Permits -conditions of approval to address noise impacts of grading activities 17.76.080 C.1.e and f.Noise controls convenience stores including 65 dBA limit on mechanical equipment noise measured at nearest property line;minimization of noise from building 17.76.130 E.4.Geologic Investigation Permits -approvals to be conditioned to mitigate noise impacts 17.76.140 C.7.Bed and Breakfasts -noise and other disturbances related to the use is prohibited 17.83.060 D.5.Small Wind Energy Systems -Noise levels for the system shall be no greater than either 60 dBA measured at the closest neighboring inhabited dwelling or any existing maximum noise levels in the general plan,whichever is lower.The noise levels established by this subsection shall not apply during short-term events such as utility outages and severe windstorms. The City's existing noise regulations are a hybrid of the two approaches.Many of the provisions that relate to sporadic events or occasional circumstances are based on reasonableness criteria rather than on decibel-specific standards.However,with regard to commercial and institutional uses located near residential areas,decibel standards have been used to regulate sound emanating from mechanical equipment that is routinely used by the particular business. Section 8.24.060 A,which deals with the issue of property maintenance,contains a broad standard that prevents "any condition [on a property]which ...results in substantial detriment to the comfortable enjoyment of life or property of others in the immediate vicinity thereof."This standard could be interpreted to include unreasonable and excessive noise. However,to avoid any ambiguity about this issue or a challenge that such language is too vague in connection with a code enforcement prosecution based on noise,Staff recommends that additional provisions be added to the Municipal Code based on a "reasonableness"standard to expressly prohibit unreasonable or excessive noise.This ordinance would be used primarily to address unusual noise emanating from a property, such as noise from loud parties or the use of stereos or other electronic equipment. CONCLUSION 20100803 SR Noise Ordinance Alternatives.doc 14-6 Memorandum:Noise Ordinance Alternatives August 3,2010 Page 7 of7 Based on the reduced expense and the relatively easier enforcement processes,Staff recommends that the City Council opt for a narrowly drafted descriptive ordinance without establishing strict decibel standards. FISCAL IMPACT Adoption of a decibel specific ordinance would necessitate acquisition of a decibel- monitoring device,along with staff training and ongoing maintenance costs.Decibel meters are available at a range of prices upwards to $5,000.00 per unit.However,further research would be necessary to determine the cost of a decibel meter that would produce results that a court would likely accept as evidence of a Municipal Code violation.Staff training and calibration costs also accrue.However,no significant operational costs would be expected if a strengthened "reasonableness"standard were added to the Municipal Code. ALTERNATIVES In addition to Staff's recommendation,the following alternatives are available for the City Council's consideration: 1.The City Council may direct Staff to prepare a decibel specific ordinance for consideration by the Planning Commission and the City Council. 2.The City Council may decide to take no action,thereby maintaining in place the existing regulations. 20100803 SR Noise Ordinance Alternatives.doc 14-7