Loading...
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 ..c�• .ram= e FAYEiTEVILLE :;u= Al _AW . Z ° T 0 N tOOo e�`� 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 tate Internal Services Director ate Received in City - -3 P0 1 Clerk's Office i Chief of St ate J �/ ER Received in Mayor's Office 8 D3 3 Ma nr 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 �Vfrwk QVA%-AW^<, 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 NORTHWEST ARKANSAS DEMOCRAT -GAZETTE NORTHWESTARKANSAS THE MORNING NEWS OF SPRINGDALE NTWS-PM-- ERAS THE MORNING NEWS OF ROGERS LLC NORTHWEST ARKANSAS TIMES BENTON COUNTY DAILY RECORD 212 NORTH EAST AVENUE, FAYETTEVILLE, ARKANSAS 72701 1 P.O. BOX 1607, 72702 1 479-442.1700 1 WWW.NWANEWS.COM AFFIDAVIT OF PUBLICATION I, Holly Andrews, do solemnly swear that I am the Legal Clerk of the Northwest Arkansas Newspapers, LLC, printed and published in Washington and Benton County, Arkansas, bona fide circulation, that from my own personal knowledge and reference to the files of said publication, the advertisement of-. City of Fayetteville - Ordinance 5612 Was inserted in the Regular Editions on: September 12, 2013 Publication Charges: $ 123.22 Holly Andrews Subscribed and sworn to before me This kG day of p }- , 2013. (�+L Notary Public My Commission Expires: Z,Zo'2•"� % a ;'v ATHY +. V11LL i= ",itonCocnty Cnnimisslon Expires **NOTE** Please do not pay from Affidavit. Invoice will be sent. SEP 18 2013 CITY CLERKS OFFICE