HomeMy WebLinkAboutOrdinance 5612ORDINANCE NO.5612
AN ORDINANCE TO AMEND § 96.02 UNREASONABLE OR EXCESSIVE
NOISE PROHIBITED; EXCEPTIONS TO RESTRICT LATE NIGHT
CONSTRUCTION ACTIVITY NOISES NEAR RESIDENCES
WHEREAS, the noise from late night and early morning construction of private
developments near residences can unreasonably disturb the residents' sleep and the peaceful
enjoyment of their homes or apartments; and
WHEREAS, restrictions on such late night construction noise near residences during the
period of 11:00 p.m. until 7:00 a.m. is reasonable, proper and necessary to protect the peace,
health and safety of Fayetteville citizens.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE
CITY OF FAYETTEVILLE, ARKANSAS:
Section 1. That the City Council of the City of Fayetteville, Arkansas hereby amends §
96.02 Unreasonable or Excessive Noise Prohibited; Exceptions by enacting a new subsection
(D) Late Night Construction Noise Near Residences as shown below:
"(D) Late Night Construction Noise Near Residences.
For the purposes of this section, construction noise from private development
construction activity shall be deemed annoying or disturbing to a person, reasonably calculated
to disturb the peace and unreasonably offensive and injurious to the public if the sound or noise
is produced later than 11:00 p.m. everyday and prior to 7:00 a.m. on all days except Sundays
when the "quiet" time shall extend until 9:00 a.m. and is plainly audible at or near any residence
(apartment, home, condo, etc.) within 150 yards of the construction activity.
(1) The measurement standard shall be by auditory senses and includes transient
construction activity noise sources.
(2) Emergency construction activity to repair or prevent a dangerous condition in order
to protect the health, safety and welfare of Fayetteville citizens or the workers on the
development project site is exempt from this provision if authorized in advance or ratified later
by the Mayor.
Page 2
Ordinance No. 5612
(3) This subsection takes precedence over any conflicting and less restrictive noise
limitation provisions in § 96.04 Limitations By Land Use Category (D) Transient Source and
(E) Construction.
(4) A variance pursuant to § 96.07 Permit For Variance may also be requested and
granted for necessary and temporary after-hours construction activities."
PASSED and APPROVED this 3rd day of September, 2013.
APPROVED: ATTEST:
By: By: cm d4,_
XIONELD AN, Mayor SONDRA E. SMITH, City Clerk/Treasurer
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City of Fayetteville Staff Review Form
City Council Agenda Items
and
Contracts, Leases or Agreements
9/3/2013
City Council Meeting Date
Agenda Items Only
Jeremy Pate Planning Development Services
Submitted By Division Department
Action ttequirea:
Approval of an ordinance to limit late night construction noise near residences
Cost of this request Category / Project Budget Program Category / Project Name
Account Number Funds Used to Date Program / Project Category Name
Project Number Remaining Balance Fund Name
Budgeted Item Budget Adjustment Attached
AAAWL filjk • , gal, Previous Ordinance or Resolution #
Department Diirktor Date
Original Contract Date:
U tl11 —Zal3 Original Contract Number:
Anance
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Internal Services Director ate Received in City - -3 P0 1
Clerk's Office
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Chief of St ate J
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Received in
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Revised January 15, 2009
•
ARKANSAS
CITY COUNCIL AGENDA MEMO
To: Mayor Jordan, City Council
Thru: Don Marr, Chief of Staff"
From: Jeremy Pate, Development Services Director 9
Date: August 08, 2013
Subject: Late Night Construction Noise
RECOMMENDATION
THE CITY OF FAYETTEVILLE, ARKANSAS
DEPARTMENT CORRESPONDENCE
The staff recommends adoption of an ordinance to limit late night private development construction noise near
residences to reasonable levels.
BACKGROUND
The City commonly receives citizen complaints related to the noise of private development construction activity near
residential areas outside of "normal" working hours of 8:00 a.m. to 5:00 p.m. Most often, these complaints are
centered on early morning or weekend activities, which is when homeowners are often present at their residence.
While construction is often necessary during evening or early morning hours, and at times on weekends, city staff
believes that reasonable limits can be placed upon these activities, without entirely prohibiting them, to limit noisy
activities to certain times of the day in an effort to allow residents to peacefully enjoy their property.
City staff has worked with the Mayor and City Attorney's office to add a new subsection to the City's existing noise
ordinance that states private development construction activity which produces plainly audible noise within 150 feet
of the construction area is prohibited after 11:00 p.m. and prior to 7:00 a.m. on each day of the week except Sunday,
when the "quiet" time shall extend to 9:00 a.m. The ordinance also defines a process for allowing for emergency
repair work on a development site, and also gives the ability for a variance to be requested and granted for necessary
and temporary after-hours construction activities. Public infrastructure development by the city, city contractors,
county, state, etc., which are not private development activities and must at times be conducted in off-peak times are
not subject to these restrictions.
BUDGETIMPACT
None.
Departmental Correspondence
RKANSAS
Kit Williams
City Attorney
Jason B. Kelley
Assistant City Attorney
TO: Mayor Jordan
Don Marr, Chief of Staff
Jeremy Pate, Development Services Director
David Jurgens, Utilities Director
Chris Brown, City Engineer
FROM: Kit Williams, City Attorney
DATE: July 23, 2013
RE: Revised proposed new section in Noise Chapter of Fayetteville
Code
Pursuant to comments from Jeremy Pate and directions from Mayor
Jordan, I have revised the ordinance enacting a new subsection "(D) Late
Night Construction Noise Near Residences."
Because of Jeremy's report of complaints about early morning
construction noise near residences on Sundays, Mayor Jordan decided to
recommend to the City Council that the quiet time of 11:00 pm until 7:00
a.m. on Sundays. Iincorporated that into"have
a.m. be extended until y
the opening section.
In response to Jeremy's concerns, I have expressly noted in a new
(D)(4) that a "variance pursuant to § 96.07 Permit For Variance may also be
requested and granted for necessary and temporary after-hours
construction activities." This should help construction contractors to find
the proper variance procedure if late night noisy construction activity such
as concrete pours are necessary during hot weather. Subsection (D)(2)
remains as a secondary variance procedure to allow "(e)mergency
construction activity to repair or prevent a dangerous condition in order to
protect the health, safety and welfare of Fayetteville citizens or the workers
on the development project site..."
I would like to see this brought forward for the Agenda by
Development Services unless Jeremy has further problems with this
proposal. I really do not think this is a difficult or confusing proposal and
so I would not start it or send it to the Ordinance Review Committee which
should handle the more complex proposed ordinances such as the proposal
booting regulation ordinance.
2
ORDINANCE NO.
AN ORDINANCE TO AMEND § 96.02 UNREASONABLE OR EXCESSIVE
NOISE PROHIBITED; EXCEPTIONS TO RESTRICT LATE NIGHT
CONSTRUCTION ACTIVITY NOISES NEAR RESIDENCES
WHEREAS, the noise from late night and early morning construction of private
developments near residences can unreasonably disturb the residents' sleep and the peaceful
enjoyment of their homes or apartments; and
WHEREAS, restrictions on such late night construction noise near residences during the
period of 11:00 p.m. until 7:00 a.m. is reasonable, proper and necessary to protect the peace,
health and safety of Fayetteville citizens.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE
CITY OF FAYETTEVILLE, ARKANSAS:
Section 1. That the City Council of the City of Fayetteville, Arkansas hereby amends §
96.02 Unreasonable or Excessive Noise Prohibited; Exceptions by enacting a new subsection
(D) Late Night Construction Noise Near Residences as shown below:
"(D) Late Night Construction Noise Near Residences.
For the purposes of this section, construction noise from private
development construction activity shall be deemed annoying or disturbing to a
person, reasonably calculated to disturb the peace and unreasonably offensive and
injurious to the public if the sound or noise is produced later than 11:00 p.m.
everyday and prior to 7:00 a.m. on all days except Sundays when the "quiet" time
shall extend until 9:00 a.m. and is plainly audible at or near any residence
(apartment, home, condo, etc.) within 150 yards of the construction activity.
(1) The measurement standard shall be by auditory senses and
includes transient construction activity noise sources.
(2) Emergency construction activity to repair or prevent a dangerous
condition in order to protect the health, safety and welfare of
Fayetteville citizens or the workers on the development project site
is exempt from this provision if authorized in advance or ratified
later by the Mayor.
Page 2
Ordinance No.
(3) This subsection takes precedence over any conflicting and less
restrictive noise limitation provisions in § 96.04 Limitations By
Land Use Category (D) Transient Source and (E) Construction.
(4) A variance pursuant to § 96.07 Permit For Variance may also be
requested and granted for necessary and temporary after-hours
construction activities.
PASSED and APPROVED this 61" day of August, 2013.
APPROVED: ATTEST:
LIONELD JORDAN, Mayor
SONDRA E. SMITH, City Clerk/Treasurer
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FAYETTEVILLE CODE OF ORDINANCES
TITLE IX GENERAL REGULATIONS
CHAPTER 96: NOISE CONTROL
ARTICLE I
GENERAL PROVISIONS
96.01 Definitions
For the purpose of this chapter the following definitions
shall apply unless the context clearly indicates or
requires a different meaning.
Decibel (dB). A unit for measuring the volume of a
sound, equal to 20 times the logarithm to the base ten of
the ratio of the pressure of the sound measured to the
referenced pressure, which is 20 micropascals (20
micronewtons per square meter).
Emergency. Any occurrence or set of
circumstances involving actual or imminent physical
trauma or property damage which demands immediate
action.
Emergency work. Any work performed for the
purpose of preventing or alleviating the physical trauma
or property damage threatened or caused by an
emergency.
Gross vehicle weight rating (GVWR). The value
specified by the manufacturer as the recommended
maximum loaded weight of a single motor vehicle. In
cases where trailers and tractors are separable, the
gross combination weight rating (GCWR) which is the
value specified by the manufacturer as the
recommended maximum loaded weight of the
combination vehicle, shall be used.
Motor carrier vehicle engaged in interstate
commerce. Any vehicle for which regulations apply
pursuant to Section 18 of the Federal Noise Control Act
of 1972 (PL92-574), as amended, pertaining to motor
carriers engaged in interstate commerce.
Noise. Any sound which annoys or disturbs
humans or which causes or tends to cause an adverse
psychological or physiological effect on humans.
Noise disturbance. Any sound which:
(1) Endangers or injures the safety or health of
humans or animals;
(2) Annoys or disturbs a reasonable person of
normal sensitivities; or
(3) Endangers or injures personal or real property.
Public right-of-way. Any street, avenue, boulevard,
highway, sidewalk or alley or similar place which is
CD96:3
owned or controlled by a government entity.
Public space. Any real property or structures
thereon which are owned or controlled by a
governmental entity.
Sound level. The weighted sound pressure level
obtained by the use of a sound level meter and
frequency weighing network, such as A, B, or C as
specified in the American National Standards Institute's
specifications for sound level meters. If the frequency
weighing employed is not indicated, the A -weighing shall
apply.
Sound level meter. An instrument which includes a
microphone, amplifier, RMS detector, integrator or time
average, or output meter, and weighing network used to
measure sound pressure levels.
Sound pressure level. Twenty times the logarithm
to the base ten of the ratio of the RMS sound pressure
to reference pressure of 20 micropascals (20 x 10 -s
N/m2).
Transient sound source. Noise, the source of
which is lawn equipment, an implement of husbandry, a
domestic power tool, or the repairing, rebuilding,
modifying or testing of any motor vehicle or motorcycle.
(Code 1965, §13-8.10); Ord. No. 2580, 12-4-79; Ord. No. 2873,
11-2-82; Ord. No. 2911, 4-5-83; Ord. No. 2937, 9-6-83; Code
1991, §96.01)
96.02 Unreasonable Or Excessive Noise
Prohibited; Exceptions
(A) Notwithstanding any other provision of this chapter,
and in addition thereto, it shall be unlawful for any
person to make, or continue or cause or permit to
be made or continued, any noise disturbance.
(B) The provisions of this section shall not apply to:
(1) The emission of sound for the purpose of
alerting persons to the existence of an
emergency;
(2) The emission of sound in the performance of
emergency work;
(3) The movement of aircraft which is in all
respects conducted in accordance with, or
pursuant to applicable federal laws or
regulations;
FAYETTEVILLE CODE OF ORDINANCES
TITLE IX GENERAL REGULATIONS
the boundary of the property from which the sound
(4) The use of bells or chimes in conjunction with or noise was emanating. Except between the
places of religious worship; and hours of 10:00 p.m. and 1:00 a.m., a complaint
under this section must be brought by a property
(5) The intentional sounding or permitting the owner or leaseholder affected by excessive noise
sounding of any fire, burglar or civil defense on their property.
alarm, siren, whistle or similar stationary or
emergency signaling device, for emergency
purposes or for testing, provided such testing
uses only the minimum cycle test time.
(C) For the purpose of this section, the use of an
amplification devise, radio, television, phonograph,
drum, musical instrument or similar devise which
produces, reproduces, or amplifies sound shall be
deemed annoying or disturbing to a person,
reasonably calculated to disturb the peace and
unreasonably offensive and injurious to the public if
the sound is produced between the hours of 1:00
a.m. and 8:00 a.m., and is plainly audible a
distance of 150 feet or more from the source of the
sound.
(1) Plainly audible means any sound produced as
set forth above which clearly can be heard at a
distance of 150 or more feet. The
measurement standard shall be by the auditory
senses, based on direct line of sight. Words or
phrases need not be discernable and bass
reverberations are included.
(2) This provision shall not apply to athletic or
school related events.
(Code 1965, §13-8.1(a), (b); Ord. No. 2580, 12-4-79; Ord. No.
12 2873, 11-2-82; Ord. No. 2911, 4-5-83; Ord. No. 2937, 9-6-83;
Ord. No. 4052, §1, 9-2-97; Code 1991, §96.02)
Cross reference(s)--Penalty, §96.99.
96.03 Measurements
Sound level measurements shall be made with a sound
level meter Type II or better using the A -weighted scale
in conformance with the standards promulgated by the
American National Standards Institution.
(Code 1965, §13-8.1(k); Ord. No. 2580, 12-4-79; Ord. No.
2873, 11-2-82; Ord. No. 2911, 4-5-83; Ord. No. 2937, 9-6-83;
Code 1991, §96.03)
96.04 Limitations By Land Use Category
(A) No person shall operate or cause to be operated, or
permit, contract or allow to be operated on
premises on public or private property any
identifiable source of sound in such a manner as to
create a sound level within the use districts in Table
1 below which exceeds the maximum noise levels
as set forth in Table 1 as measured at any point on
CD96:4
TABLE 1
Maximum
Use Districts Time Noise Levels
All residential
7:00 a.m. to
60 dB(A)
zones
11:00 P.M.
All residential
11:00 P.M. to
55 dB(A)
zones
7:00 a.m.
All commercial
7:00 a.m. to
75 dB(A)
zones
11:00 P.M.
All commercial
11:00 P.M. to
70 dB(A)
zones
7:00 a.m.
All industrial
7:00 a.m. to
80 dB(A)
zones
11:00 P.M.
All industrial
11:00 P.M. to
75 dB(A)
zones
7:00 a.m.
All measurements shall be taken with a sound level
meter in its fast or peak level setting.
(B) District boundaries. When a noise source can be
identified and its noise measured in more than one
use district, the noise level limits of the most
restrictive use district shall apply at that district
boundary.
(C) Commercial source. Notwithstanding the zoning
classification of the underlying parcel, restaurants,
night clubs, private clubs, auditoriums, dance halls,
and rehearsal studios are defined as commercial
sound sources existing in commercial zones for the
purposes of this chapter.
(D) Transient source. For a transient sound emanating
in any land use category, the peak noise level shall
not exceed 20 decibels above the limit set in Table
1 above.
(E) Construction. Construction projects shall be
subject to the limitations specified for industrial
zones for the period of time allowed by the building
permit.
(Code 1965, §13-8.1(c); Ord. No. 2580, 12-4-79; Ord. No.
2873, 11-2-82; Ord. No. 2911, 4-5-83; Ord. No. 2937, 9-6-83;
Ord. No. 3624, §1, 8-4-92; Ord. No. 3724, §1, 9-21-93; Ord. No.
3926, §1, 10-3-95, Ord. No. 4047, 7-15-97; Code 1991, §96.04)
Cross reference(s)--Penalty, §96.99.
FAYETTEVILLE CODE OF ORDINANCES
TITLE IX GENERAL REGULATIONS
96.05 Motor Vehicle And Motorcycle (E) No person shall operate or cause to be operated a
Sound Limit motor vehicle or motorcycle by rapidly advancing its
throttle (revving) such that a noise disturbance
(A) No person shall operate or cause to be operated a occurs.
public or private motor vehicle or motorcycle on a (Code 1965, §13-8.1(d), (e), (f); Ord. No. 2580, 12-4-79; Ord.
public right-of-way or private property at any time No. 2873, 11-2-82; Ord. No. 2911, 4-5-83; Ord. No. 2937, 9-6-
and in such a manner that the sound level emitted 83; Ord. No. 3926, §2,10-3-95; Code 1991, §95.05; Ord. 4747,
by the motor vehicle or motorcycle exceeds the 9-06-05; Ord. 5059, 9-18-07)
level set forth in Table II below.
TABLE II
MOTOR VEHICLE AND MOTORCYCLE
SOUND LIMIT
(Measured at 25 Feet From the Near
Side of the Nearest Lane Monitored)
Sound Level in d6
Speed limit Speed limit Stationary
Vehicle class 35m h or less over 35m h Run-up
Motor vehicle
86
90
88
carrier
engaged in
interstate
commerce of
GVWR or
GCWR of
10,000 lbs.
Or more
Any other
78
78
78
motor vehicle
or any
combination
of vehicles
towed by any
such motor
vehicles
Motorcycles
78
78
78
(B) No person shall operate or cause to be operated
any motor vehicle or motorcycle not equipped with
a muffler or other sound dissipative device in good
working order and in constant operation.
(C) No person shall sound any horn or other auditory
signaling device on or in any motor vehicle on any
public right-of-way or public place, except as a
warning of danger.
(D) Operating or causing to operate any sound
amplification device from within a vehicle so that
the sound is plainly audible at a distance of 30 feet
or more from the vehicle whether in a street, a
highway, an alley, parking lot or driveway, whether
public or private property, is prohibited and
declared to be a noise disturbance in violation of
this chapter.
CD96:5
Cross referen ce(s)-- Penalty, §96.99.
96.06 Radios And Loudspeakers Used
For Certain Purposes Prohibited
It shall be unlawful for any person to use, operate or
permit to be played, used or operated any radio
receiving set, musical instrument, phonograph,
loudspeaker, sound amplifier, or other machine or
device for the producing or reproducing of sound which
is cast upon the public streets from a point of origin
located on private property, for the purpose of
commercial advertising or attracting the attention of the
public to any building or structure.
(Code 1965, §13-8; Ord. No. 1211, 7-27-59; Code 1991,
§96.06)
Cross reference(s)--Penalty, §96.99.
96.07 Permit For Variance
(A) Application, issuance.
(1) The mayor shall have the authority to issue a
permit, upon a showing of undue hardship, for
a variance from the provisions of this section
upon a showing by the applicant that:
(a) Additional time is necessary for the
applicant to alter or modify his activity or
operations to comply with this section; or
(b) The activity, operation or noise source will
be of a temporary duration and cannot be
done in a manner that would comply with
this section; and
(c) No reasonable alternative is available to
the applicant.
(2) An application for a variance permit shall be in
writing on a form prescribed by the mayor. In
issuing a variance permit, the mayor may
impose reasonable conditions or requirements
necessary to minimize adverse effects upon
the surrounding neighborhood. For events to
be attended by the public, the written
application for a variance shall be filed with the
FAYETTEVILLE CODE OF ORDINANCES
TITLE IX GENERAL REGULATIONS
mayor a minimum of 14 days prior to the date 96.99 Penalty
on which a variance is requested. The violation of any provision of this chapter shall be
punished by a fine of not more than $500.00 or double
(B) Denial, • appeal. An applicant who is denied a that sum for each repetition of such violation. If the
variance by the mayor may appeal to the violation is, in its nature, continuous in respect to time,
Fayetteville City Council by filing written notice of the penalty for allowing the continuation thereof shall not
appeal with the city clerk within 10 days from the exceed $250.00 for each daythat the same is unlawfully
date of the mayor's decision. The notice of appeal continued.
shall specifically state the reasons why the
applicant considers the mayor's findings and (Code 1965, §13-8.1(h); Ord. No. 2580, 12-4-79; Ord. No.
decision to be in error. 2873, 11-2-82; Ord. No. 2911, 4-5-83; Ord. No. 2937, 9-6-83;
Code 1991, §96.99)
(Code 1965, §13-8.1(g); Ord. No. 2580, 12-4-79; Ord. No.
2873, 11-2-82; Ord. No. 2911, 4-5-83; Ord. No. 2937, 9-6-83;
Code 1991, §96.07)
96.08 Order In Lieu Of Notice Of Violation
(A) In lieu of issuing a notice of violation, a noise
control officer responsible for enforcement of any
provision of this section may issue an order
requiring abatement of any source of sound alleged
to be in violation of this section within a reasonable
time period. An abatement order shall not be
issued when the noise control officer has reason to
believe that there will not be compliance with said
order.
(B) A violation of any provision of this section shall be
cause for a notice of violation to be issued by the
noise control officer.
(Code 1965, §13-8.1(i); Ord. No. 2580, 12-4-79; Ord. No. 2873,
11-2-82; Ord. No. 2911, 4-5-83; Ord. No. 2937, 9-6-83; Code
1991, §96.08)
96.09 Compression Release Engine Brake
(A) A compression release engine brake, or other
hydraulically operated device that converts a power
producing diesel or gas engine into a power
absorbing retarding mechanism with a
correspondingly increased amount of noise
emission shall not be engaged or used within the
city limits of Fayetteville except in the case of
failure of the service brake system, adverse
weather conditions, or other emergency
necessitating the compression release engine
brake's use
(B) Fire trucks, and those municipal vehicles equipped
with the Quiet Brake and Silent Partner System are
exempted from the requirements of this section.
(Ord. 5132, 4-15-08; Ord. 5228, 3-17-09)
96.10-96.98 Reserved
CD96:6
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Ordinance 5612
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