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O205,_ . ~, . G~~f~~U~aL CITY SECRETARY'S COPY ORDINANCE NO. 205 AN ORDINANCE ADDING ARTICLE V, "LOUD NOISES", TO CHAPTER 15 OF THE KENNEDALE CITY CODE (1992), AS AMENDED, TO DECLARE CERTAIN NOISES AND NOISE LEVELS TO BE A NUISANCE; PROVIDING THAT THIS ORDINANCE SHALL BE CUMULATIVE OF ALL ORDINANCES; PROVIDING A SEVERABILITY CLAUSE; PROVIDING A SAVINGS CLAUSE; PROVIDING A PENALTY CLAUSE; PROVIDING FOR PUBLICATION IN THE OFFICIAL NEWSPAPER; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City of Kennedale is a home rule city acting under its charter adopted by the electorate pursuant to Article XI, Section 5, of the Texas Constitution and Chapter 9 of the Local Government Code; WHEREAS, the City has determined that unreasonably loud or disturbing noises cause material distress, discomfort, annoyance or injuryto persons of ordinary sensibilities and, therefore, constitute a nuisance per se; and WHEREAS, as authorized by Section 217.042 of the Texas Local Government Code, the City desires to prohibit noise nuisances within the city's corporate limits and within 5,000 feet thereof. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF KENNEDALE, TEXAS: SECTION 1. AMENDMENT Chapter 15 of the Kennedale City Code is hereby amended by adding a new ARTICLE V., "LOUD NOISES", to read as follows: "ARTICLE V. LOUD NOISES Sec. 15-151. Definitions. The following definitions shall apply in this article, unless otherwise indicated: A-weighted sound level means the sound pressure level in decibels as measured NOISE ORDINANCE PAGE 1 W:\Kennedale\ORDINANC\NOiseNuisance.3.FN.wpd (10/30/00) ~• ~. on a sound level meter using the A-weighing network. The level so read is designated Y,, dB(A) or dBA. Decibel (dB) means a unit for measuring the volume of a sound, equal to 20 times the logarithm to the base 10 of the ratio of the pressure of the sound measured to the reference pressure, which is 20 micropascals (20 micronewtons per square meter). Dwelling means any residence, hotel, or other similarly occupied structure other than the dwelling of the person responsible for or causing the noise. Equivalentsoundyressure level (Leq) means the level of an equivalent sound which would have the same total energy as the time varying sound being evaluated and which can be measured by special sound level meters. Sec. 15-152. Noise nuisances prohibited. It shall be unlawful for any person to make, cause, or allow to be made within the corporate limits of the city or within 5,000 feet thereof, any nuisance as described in this article or any other unreasonably loud or disturbing noise that is offensive to the ordinary sensibilities of the inhabitants of the city, renders the enjoyment of life or property uncomfortable, or interferes with public peace and comfort. Sec. 15-153. Nuisance if noise exceeds permitted level. Any noise within the City's corporate limits or within 5,000 feet thereof that exceeds the following noise levels, as measured at any point along the property line of the site generating the noise, is declared to be an unreasonably loud or disturbing noise and a nuisance and shall be deemed a violation of this chapter: (a) Any offense as set forth in the Texas Penal Code, Section 42.01(a)(5) and (c)(2). (b) Any single event maximum sound disturbance in excess of 70 decibels NOISE ORDINANCE PAGE 2 W:1Kennedale\ORDINANC\NoiseNuisance.3.FN.wpd (10/30/00) created by any business, activity or use between the hours often (10:00) p.m. on Sunday, ,; Monday, Tuesday, Wednesday, or Thursday and seven (7:00) a.m. the following day. (c) Any single event maximum sound disturbance in excess of 70 decibels created by any business, activity or use between the hours of twelve a.m. (midnight) on Friday or Saturday night and seven (7:00) a.m. the following day. Sec. 15-154. Nuisance if causes distress, discomfort, annoyance, or injury. In addition to the prohibitions set forth in Sections 15-153 and 15-155, the following acts, when conducted in such a manner or with such volume, intensity or duration as to cause material distress, discomfort, annoyance or injury to persons of ordinary sensibilities within the immediate vicinity or residing or working on adjacent properties are declared to be nuisances in violation of this chapter; but said enumeration shall not be deemed to be exclusive: (a) The use of any loudspeaker or amplifier. (b) The keeping of any animal or bird which creates frequent orlong-continued noise. (c) The continued or frequent sounding of any horn or signal device on any automobile, motorcycle, bus, or other vehicle except as a danger or warning signal, or the creation by means of any such horn or signal device of any unreasonably loud or harsh noise for any unnecessary and unreasonable period of time. (d) The running of any automobile, motorcycle, or vehicle so out of repair, so loaded or in such condition as to create loud or unnecessary grating, grinding, jarring, banging, or rattling noise or vibrations. (e) The discharge into the open air of the exhaust of any steam engine, stationary internal combustion engine, motor vehicle, motorcycle, or boat engine except NOISE ORDINANCE PAGE 3 W:\Kennedale\ORDINANC\NoiseNuisance.3.FN.wpd (10/30/00) through a mufFler or other device which will effectively prevent loud or explosive noises f~ therefrom. (f) The operation of any motorized vehicle off of a public right-of-way in a manner, whether by revving, racing, or running the engine in any other manner, that creates any unreasonably loud or harsh noise. Sec. 15-155. Nuisance during certain times. In addition to the prohibitions set forth in Sections 15-153 and 15-154, the following acts, among others, are deemed to be nuisances that are prohibited by this chapter during the times listed: (a) The playing of any radio, audio equipment or other musical instrument between the hours of ten (10:00) p.m. and seven (7:00) a.m. in such manner or with such volume as to annoy or disturb the quiet, comfort, or repose of persons of ordinary sensibilities in any dwelling. (b) The erection, including excavation, demolition, alteration or repair work on any building, structure or site which is within 100 feet of any dwelling between the hours of six (6:00) p.m. and seven (7:00) a.m. on weekdays, except in case of urgent necessity in the interest of public safety and convenience, and then only by permit issued under Section 15-157. (c) The creation of any excessive noise on any street adjacent to any school, institution of learning, or church while the same is in session or adjacent to any hospital, which unreasonably interferes with the workings of such institutions, provided conspicuous signs are displayed in such manner indicating that the same is a school, church or hospital area. (d) The parking or standing of any engine or motor, whether attached to a NOISE ORDINANCE PAGE 4 W:\Kennedale\ORDINANC\NoiseNuisance.3.FN.wpd (10!30/00) . vehicle, trailer, or otherwise, left in operation for a period exceeding one (1) hour between t~ the hours often (10:00) p.m. and seven (7:00) a.m., within a distance of 200 feet from any dwelling. Sec. 15-156. Exceptions. The following shall be an exception to this article and shall not be deemed a nuisance: (a) the sounding of any emergency signal by an authorized public official; (b) the sounding of any horn or signal device on any emergency vehicle in the performance of duty; (c) the operation of any heavy equipment or machinery (whether independent or attached to a motor vehicle) for the purpose of making an emergency repair requested or authorized by a public official; (d) motor carriers engaged in interstate commerce and subject to regulation by Title 42, Section 4917, of the United States Code; or (e) a noise created by a person that holds a permit as provided in Section 15-157 to engage in any activity that would otherwise be deemed a nuisance. Sec. 15-157. Permit. (a) Deadline fo apply for permit. To apply for a permit to engage in any activity that creates a noise that would qualify as a nuisance under this section, a person must apply in writing to the Permit Office at least ten (10) calendar days prior to the requested issuance date and time, unless unforeseeable circumstances justify a shorter amount of time. (b) Application for permit. The application for a permit must: (1) list the name, address, and daytime telephone number of the applicant; NOISE ORDINANCE PAGE 5 W:\Kennedale\ORDINANC\NoiseNuisance.3.FN.wpd (10/30/00) . (2) specifically describe the type and duration of the noise, and the date .•. and times the noise will occur; (3) specifically describe the reason for the noise level, the location of the noise, and the expected range and decibel level of the noise; and (4) contain, if different from the applicant, the name of the owner of the property on which the noise will occur and a written letter of permission from the owner and any tenants or other persons occupying the property from which the noise will occur. (c) Filing fee. A filing fee must be submitted with the application for a permit, in an amount prescribed in a fee schedule adopted by the city council. (d) Grounds for granting or denying permit. In determining whether to grant or deny the permit, the following factors shall be considered: (1) the safety of the persons who will be subjected to the noise, whether voluntarily or involuntarily; (2) the number of persons that will be involuntarily subjected to the noise; (3) the probable amount of distress, discomfort, annoyance or injury to persons that will be involuntarily subjected to the noise; (4) the reasonableness of the time, place, and manner of the noise and the duration of the noise; and (5) any other factors necessary to determine the impact on the public health and safety and the disruption of the peace that the noise may cause. (e) Notice of the decision regarding permit. At least five calendar days before the date and time that the applicant requested issuance of the permit, the applicant shall be notified at the applicant's daytime telephone number and by regular U.S. mail of the decision either to grant or deny the permit. If the permit is denied, the reasons for the NOISE ORDINANCE PAGE 6 W:\Kennedale\ORDINANC\NoiseNuisance.3.FN.wpd (10/30/00) .~ denial shall be stated in the notice to the applicant. If the permit is granted, reasonable ~, , time, place, and manner restrictions may be placed on the activity authorized by the permit. (f) Appeal. Upon receiving notice of permit denial, the applicant may appeal the decision, including restrictions placed on the activity authorized by the permit, to the city manager or his designee. Within one working day of receiving the appeal, the city manager shall consider the application, the basis of denial, or any restrictions placed on issuance of the permit. Based on the standards in subsection (d) above, the city manager may uphold the decision to deny the permit, approve issuance of the permit as applied for, or modify restrictions placed on the permit. The city manager shall notify the applicant at the applicant's daytime telephone number and by regular U.S. mail of the final decision. (g) Permit. The permit shall specify at least the following: (1) the date and time that the permit shall begin and end; (2) the location from which the noise may emanate and the maximum boundaries to which the noise may extend; (3) the maximum decibel level and Leq level allowed at the location of the noise; (4) a description of the basic nature of the noise; and (5) who may make the noise. (h) Must display permit. Upon receiving a permit, the applicant must display the permit in clear view at the location of the noise at all times during the commission of the noise. SECTION 2. CUMULATIVE This ordinance shall be cumulative of all provisions of ordinances and of the Kennedale City Code, except when the provisions of this ordinance are in direct conflict NOISE ORDINANCE PAGE 7 W:\Kennedale\ORDINANC\NOiseNuisance.3.FN.wpd (10/30/00) ~- ~r ~,, with the provisions of such ordinances and such Code, in which event the conflicting provisions of such ordinances and such Code are hereby repealed. SECTION 3. SEVERABLE It is hereby declared to be the intention of the City Council that the phrases, clauses, sentences, paragraphs, and sections of this ordinance are severable, and if any phrase, clause, sentence, paragraph, or section ofthis ordinance shall be declared unconstitutional by the valid judgment or decree of any court of competent jurisdiction, such unconstitutionality shall not affect any of the remaining phrases, clauses, sentences, paragraphs, and sections of this ordinance, since the same would have been enacted by the City Council without the incorporation in this ordinance of any such unconstitutional phrase, clause, sentence, paragraph, or section. SECTION 4. SAVINGS All rights and remedies of the City of Kennedale are expressly saved as to any and all violations of the provisions of the Kennedale City Code or any other ordinances regulating noise which have accrued at the time ofthe effective date ofthis ordinance; and, as to such accrued violations and all pending litigation, both civil and criminal, whether pending in court or not, under such ordinances, same shall not be affected by this ordinance but may be prosecuted until final disposition by the courts. SECTION 5. PENALTY Any person, firm, or corporation who violates, disobeys, omits, neglects, or refuses to comply with or who resists the enforcement of any of the provisions of this ordinance shall be fined not less than Two Hundred Dollars ($200.00) nor more than Five Hundred Dollars ($500.00) for each offense. Each day that a violation is permitted to exist shall NOISE ORDINANCE PAGE 8 W:\Kennedale\ORDINANC\NOiseNuisance.3.FN.wpd (10/30/00) ,- a _,~ constitute a separate offense. SECTION 6. PUBLICATION The City Secretary of the City of Kennedale is hereby directed to publish in the official newspaper of the City of Kennedale the caption, penalty clause, publication clause and effective date clause of this ordinance as provided by Section 3.10 of the Charter of the City of Kennedale. SECTION 7. EFFECTIVE DATE This ordinance shall be in full force and effect from and after its passage and publication and it is so ordained. PASSED AND APPROVED ON THIS 26 DAY OF ac~aER , 2000. ' ~ • MAYO v. .*= *. • yc =~ • sr .,,~ ~~,, ~~„ ~~ CITY ECR ARY EFFECTIVE: /~ •7 -DD APPROVED AS TO FORM AND LEGALITY: CITY ATTORNEY NOISE ORDINANCE PAGE 9 W:\Kennedale\ORDINANC\NoiseNuisance.3.FN.wpd (10/30/00)