O405ORDINANCE N0.405
AN ORDINANCE AMENDING CHAPTER 15, ARTICLE V, OF THE
KENNEDALE CITY CODE (1991), AS AMENDED, TO PROVIDE FOR A
SOUND MITIGATION PLAN FOR BUSINESSES AND ON-GOING
ACTIVITIES; PROVIDING THAT THIS ORDINANCE SHALL BE
CUMULATIVE OF ALL ORDINANCES; PROVIDING A SEVERABILITY
CLAUSE; PROVIDING A SAVINGS CLAUSE; PROVIDING A PENALTY
FOR VIOLATIONS THEREOF; 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 Texas Local Government Code; and
WHEREAS, the City has determined that unreasonably loud or disturbing noises
cause material distress, discomfort, annoyance or injury to 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; and
WHEREAS, the City has determined that businesses and activities which create
an on-going noise concern may implement sound mitigation devices in order to limit the
concerns and protect the citizens of the City of Kennedale.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
KENNEDALE, TEXAS:
SECTION 1.
Section15-151 of the Kennedale City Code is hereby amended by adding the
following definition:
"On-going activities means activities that occur on a regular orfrequent basis.
This definition includes permanentfacilities that host activities and events. On-going
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activities do not include one-time events or annual activities that may receive
permits pursuant to Section 15-157 of this Chapter. This definition does not include
activities of a governmental entity or a political subdivision of the state."
SECTION 2.
Section 15-153 of the Kennedale City Code is hereby amended to read as follows:
"Sec. 15-153. Nuisance if noise exceeds permitted level.
Any noise within the city's corporate limits orwithin five thousand (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 article:
(1) Any offense as set forth in V.T.C.A., Penal Code § 42.01(a)(5) and
(c)(2).
(2) On property which is in compliance with a sound mitigation plan
approved under Section 15-158, any single event maximum sound
disturbance in excess of seventy (70) decibels created by any business,
activity or use between the hours of 10:00 p.m. on Sunday, Monday,
Tuesday, Wednesday, or Thursday and 7:00 a.m. the following day and
between the hours of twelve a.m. (midnight) on Friday or Saturday night and
7:00 a.m. the following day."
SECTION 3.
Chapter 15, Article V, of the Kennedale City Code is hereby amended by adding a
new Section 15-158 to read as follows:
"Sec. 15-158. Sound Mitigation Plan
(a) All businesses or on-going activities may submit a sound mitigation plan
to the city manager for approval. The sound mitigation plan shall include:
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(1) Acceptable sound barriers, which include, but are not limited
to the following:
(i) trees, shrubs and other vegetation;
(ii) earthen berms;
(iii) fencing;
(iv) sound blankets;
(v) mufflers;
(vi) walls or similar structures; and/or
(vii) any other improvements or modifications designed to
dampen excessive noise.
(2) Projected date of completion or implementation of sound
mitigation plan; and
(3) Future decibel level at property line, after completion or
implementation of sound mitigation plan.
(b) Decibel level at the property line, after implementation of the sound
mitigation plan may not exceed eighty-five (85) decibels.
(c) A sound mitigation plan must be implemented within a reasonable time,
as agreed upon by the city manager and the entity or person submitting the
sound mitigation plan. Construction or development of the acceptable sound
barriers must begin within thirty (30) days of approval of the sound mitigation
plan and shall be completed within a reasonable period of time. No plan shall
require more than eighteen (18) months for implementation. Failure to begin
construction or development of the acceptable sound barriers will void the
sound mitigation plan."
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SECTION 4.
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
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 5.
SEVERABLE
It is hereby declared to be the intention of the City Council thatthe phrases, clauses,
sentences, paragraphs, and sections of this ordinance are severable, and if any phrase,
clause, sentence, paragraph, or section of this 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 6.
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 which
have accrued at the time of the effective date of this 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.
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ECTION 7.
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 more than Five Hundred Dollars ($500.00) for each offense. Each day
that a violation is permitted to exist shall constitute a separate offense.
SECTION 8.
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 9.
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 10th DAY OF JULY, 2008.
MAYOR
ATTEST:
CITY SECRE RY
EFFECTIVE: ~ 2S ~~
APPROVED AS TO FORM AND LEGALITY:
~~~ Q~-,
CITY ATTORNEY
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