O-2010-3247 prohibition of sound nuisances outside of city limits

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REQUEST FOR CITY COUNCIL AGENDA ITEM Agenda Date Requested May 10, 2010 Requested By: Clark Askms ~ _A ~.. ... . Appropriation Source of Funds: Department: Legal Account Number: Report: Resolution: Ordinance: x Amount Budgeted: Exhibits: Ordinance Amount Requested: Exhibits: Budgeted Item: YES NO Exhibits: SUMMARY & RECOMMENDATION Because of noise/vibration disturbances caused to residents of south La Porte by operations at the Port of Houston Authority Bayport complex, the City has been asked by citizens to enforce applicable regulations under state law and city ordinances governing noise nuisances. Texas Penal Code Section 42.01(5) makes it a misdemeanor for a person to make an "unreasonable noise in a public place other than a sport shooting range.. .or in or near a private residence that he has no right to occupy". For purposes of this regulation the Penal Code states that a noise is "presumed to be unreasonable if the noise exceeds a decibel level of 85 after the person making the noise receives notice from a magistrate or peace officer that the noise is a public nuisance". The term "person" is defined to include a corporation or an association. In addition, the City also has a noise regulation ordinance codified in Chapter 34 of the Code of Ordinances, which in the case of residential (and non-residential) facilities affected by noise nuisances, carries a lower decibel threshold than the Penal Code. The La Porte Police Department has traditionally cited noise violators under either one of these regulations, at its discretion. Due to the fact that the Port of Houston's operations are located to the south of the city's boundary line, the city attorney's office is recommending that the city bolster its noise ordinance (Chapter 34 of the City Code) by declaring that the ordinance is intended to apply in -and therefore regulate - areas outside of the city limits up to 5000 feet. Texas Local Government Code Sec. 217.042 provides that "the municipality may define and prohibit any nuisance within the limits of the municipality and within 5000 feet outside city limits". One interpretation of Local Government Code Sec. 217.042, based on its wording, is that it is only necessary to define the nuisance, and authority to regulate nuisances 5000 feet outside of city limits is automatic, and that the recommended change to our ordinance would therefore be unnecessary. However, to be on the safe side, and to avoid having to argue this point in court, our office is recommending this amendment. n ordinance amending the city's noise prohibition ordinance. 5K0 Date