HomeMy WebLinkAboutO-2010-3247 prohibition of sound nuisances outside of city limits
F'"
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
ORDINANCE NO. 2010 3~ Y 7
AN ORDINANCE AMENDING CHAPTER 34 "ENVIRONMENT" OF THE CODE OF
ORDINANCES OF THE CITY OF LA PORTE BY AMENDING ARTICLE III "NOISE
POLLUTION" TO DEFINE AND PROHIBIT NOISE NUISANCES 5000 FEET
OUTSIDE OF LA PORTE CORPORATE LIMITS, AS ALLOWED BY SECTION
217.042 OF THE TEXAS LOCAL GOVERNMENT CODE; PROVIDING A PENALTY
OF $2000 FOR EACH OFFENSE; PROVIDING A SEVERABILITY CLAUSE;
CONTAINING AN OPEN MEETINGS CLAUSE; PROVIDING FOR THE
PUBLICATION OF THE CAPTION HEREOF; AND PROVIDING AN EFFECTIVE
DATE HEREOF;
NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF LA
PORTE, TEXAS:
Section 1. Chapter 34 "Environment", Article III "Noise Pollution" of the Code of Ordinances of
the City of La Porte, Texas is hereby amended by amending Section 34-93 "General
Prohibition", which section shall read as follows:
"Sec. 34-93. General prohibition.
(a) It shall be unlawful for any person to make, assist in making, continue, cause to be made or
continued or permit the continuance of any sound, noise, or vibration in the territorial limits of
the city or within the area immediately adjacent and contiguous to the city limits and extending
for a distance of 5000 feet beyond the city limits, which either exceeds the maximum permitted
levels specified in section 34-92, of this article, or for the purposes of subsection (b), otherwise
unreasonably disturbs, injures or endangers the comfort, repose, health, peace or safety of others
within the limits of the city. Any sound, noise, or vibration in violation of this article is declared
to be a common and public nuisance.
(b) It shall be unlawful for any person to make, continue, or cause to be made or continued any
loud, unnecessary, or unusual sound, noise, or vibration that annoys, disturbs, injures, or
endangers the comfort, repose, health, peace, or safety of others. In determining whether a sound,
noise, or vibration is loud, unnecessary, or unusual, the following factors shall be considered:
time of day; proximity to residential structures; whether the noise is recurrent, intermittent, or
constant; the volume and intensity; whether the sound, noise, or vibration has been enhanced in
volume or range by any type of electronic or mechanical means; and whether the sound, noise, or
vibration is subject to being controlled without unreasonable effort or expense to the creator
thereof.
(c) The acts enumerated in the following sections of this article, among others, are declared to
be sound nuisances which are unreasonably loud, irritating, disturbing, or excessive sounds in
violation ofthis chapter, but such enumeration shall not be deemed to be exclusive."
Section 2. Any person who violates any provision of this ordinance shall be guilty of a class C
misdemeanor and upon conviction shall be fined an amount not exceeding $2000.00.
Section 3. Open Meetings. The City Council officially finds, determines, recites, and declares
that a sufficient written notice of the date, hour, place and subject of this meeting of the City
Council was posted at a place convenient to the public at the City Hall of the City for the time
required by law preceding this meeting, as required by the Open Meetings Law, Chapter 551,
Texas Government Code; and that this meeting has been open to the public as required by law at
all times during which this ordinance and the subject matter thereof has been discussed,
considered and formally acted upon. The City Council further ratifies, approves and confirms
such written notice and the contents and posting thereof.
Section 4. Severability. Should any section or part of this ordinance be held unconstitutional,
illegal, or invalid, or the application to any person or circumstance for any reasons thereof
ineffective or inapplicable, such unconstitutionality, illegality, invalidity, or ineffectiveness of
such section or part shall in no way affect, impair or invalidate the remaining portions thereof;
but as to such remaining portion or portions, the same shall be and remain in full force and effect
and to this end the provisions of this ordinance are declared to be severable.
Section 5. Effective Date. This Ordinance shall be effective fourteen (14) days after its passage
and approval. The City Secretary shall give notice of the passage of this ordinance by causing the
caption hereof to be published in the official newspaper of the City of La Porte at least once
within ten (10) days after the passage of this ordinance, in accordance with the provisions of
Chapter 52, Texas Local Government Code, and the City of La Porte Charter.
PASSED AND APPROVED on this the / cjf- illIy of ~ 2010.
By:
ATTEST:
~~ d. JdiI1/
Mart a A. Gillett
City Secretary
APPROVED:
Cll/d-'1 ~
Assistant City Attorney