City of Alexandria, Virginia
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MEMORANDUM
DATE: DECEMBER 7, 2021
TO: THE HONORABLE MAYOR AND MEMBERS OF CITY COUNCIL
FROM: MARK B. JINKS, CITY MANAGER /s/
DOCKET TITLE:
TITLE
Introduction and First Reading of An Ordinance to Amend Title 11 Chapter 5: Noise Control Ordinance.
BODY
ISSUE: Should City Council adopt certain policy updates to the noise ordinance with the goal of making noise control more fair, equitable and enforceable?
RECOMMENDATION: That City Council approve the proposed noise ordinance amendments (Attachment 2) on first reading and schedule it for second reading, public hearing and final passage on Saturday, December 18, 2021.
BACKGROUND: The City’s noise ordinance was first passed in 1963. Since that time, numerous changes have taken place within the City and at the State level that necessitate the noise ordinance to be updated to reflect current case law, city property use patterns, and present sources of noise. The revisions required to address these needs include both administrative and policy changes. Due to the complexity of this process, Council approved that the revisions be addressed in two phases. Phase I revision addressed administrative changes to make the noise ordinance legally enforceable and also added a new institutional property use. The Phase I revisions were adopted by Council on May 15, 2021.
This memorandum reviews policy options that were subject to public input and discussed with City Council in its work session on November 9, 2021. The proposed ordinance has been revised based on Council feedback.
DISCUSSION: On November 9, 2021, City staff presented City Council with ten potential policy options and requested guidance. Based on Council guidance, staff recommends the following nine policy options that are included in the final revised noise ordinance. Staff also has included some potential variations for several policy options for Council consideration (Attachment 5). Should Council decide to delay decision on any of these policy options, staff will follow up on Council guidance and consideration of those options would occur at a later date.
1. Nine Policy Options Included in Revised Noise Ordinance
Option #1: Regulate do-it-yourself (DIY) construction activities - These activities are proposed to be regulated and allowed during the following hours: Monday - Friday: 7 a.m. to 9 p.m.; weekends and holidays: 9 a.m. to 9 p.m. Currently these activities are exempt from the noise code when conducted by the homeowners, and the City has received increasing number of complaints. The permitted hours for these activities are the same as those for the use of power lawn equipment.
Option #2: Expand the “Noise in public places - Central Business District” provisions to the entire City - Currently, there are limited provisions for regulating noise in public places in other parts of the city, and this proposal allows for the same protection from noise in those areas. A potential variation for this option is presented in Attachment 5 for Council consideration.
Option #3: Increase civil penalty to $100 for first violation; $250 for second violation and $500 for third violation - Community supports this option and staff recommends increasing the civil penalties for first and second violations while keeping the same penalty for the third violation in the absence of criminal penalty to deter noise violations.
Option #4: Remove the 75 dB(A) standard and maintain the current permitted hours for the use of power lawn and gardening equipment, i.e., 7 a.m. to 9 p.m. Monday to Friday; 9 a.m. to 9 p.m. on weekends and holidays - The 75 dB(A) standard has been practically unenforceable and sets unrealistic expectations.
Option #5: Remove predominant use standard and adopt the decibel standard based on property use of the noise source - The intent is to make the noise ordinance easy to understand, more equitable and enforceable. The predominant use standard has been demonstrated as poorly defined, difficult to understand and at times cannot be determined by noise inspectors during ongoing investigation. Potential variation for this option is presented in Attachment 5 for Council consideration.
Option #6: Increase daytime decibel standard for commercial use - Increase the daytime (7 a.m. to 11 p.m.) decibel standard for commercial use to 65 dB(A) while maintaining the nighttime standard at 60 dB(A) - The intent is to allow for more vibrancy in the commercial corridors during daytime but preserve the current permissible noise levels during nighttime. Potential variation for this option is presented in Attachment 5 for Council consideration.
Option #7: Adopt the plainly audible standard during nighttime (11 p.m. to 7 a.m.) in residential areas - This standard is adopted by several jurisdictions across the country. The intent is to facilitate noise enforcement without the use of noise meters. Potential variation for this option is presented in Attachment 5 for Council consideration.
Option #8: Prohibit loading, unloading and delivery activities between 11 p.m. and 7 a.m. if they occur within 500 feet of residential areas - All Special Use Permits (SUP)/Development Special Use Permits (DSUP) issued during the last 5 to 10 years have this standard condition but some older SUP/DSUPs do not. The intent is to have one common rule for all businesses going forward and avoid increasing number of noise complaints.
Option #9: Continue regulating neighbor-to-neighbor noise in multi-family and mixed-use buildings - Following the November 9 Council meeting, staff undertook further research on the option of not regulating noise in multi-family and mixed-use buildings. The objective of noise control is to prevent any noise that disturbs the comfort, health, welfare, environment, peace, or safety of any person in the City of Alexandria. Staff now recommends that enforcement should occur in all residence types and mixed-use buildings because under First Amendment and equal protection constitutional analysis there is no rational basis to treating these uses differently from others. As such, provisions have been included related to assessing decibel levels in the aforementioned situations and using a plainly audible standard overnight between all residence types.
2. One Policy Option That Was Considered but Is not Included in the Revised Noise Ordinance
Option #10: Allow Special Use Permit (SUP) conditions to be less restrictive than the City noise ordinance - staff does not support this option since it would make the process of setting and enforcing SUP conditions that are unique to each business extremely difficult to manage and very resource-intensive.
3. Other Administrative Changes Included in the Revised Noise Ordinance
Based on discussions with public transit providers, a new exemption from the noise ordinance was added to exempt “Noise resulting from the operations of transit in compliance with the requirements of the Americans with Disabilities Act.”
FISCAL IMPACT: There will be a fiscal impact associated with this code revision. City staff is currently reviewing noise enforcement policy and procedures based upon the outcome of that review, there is likely to be a recommendation to increase funding and resources that would be addressed in the FY 2023 Operating Budget. If the recommendation to increase fines for noise violations is adopted, there will likely be a nominal increase in revenue from the issuance of noise tickets. But not enough to pay for the added enforcement resources.
At this time staff is discussing the addition of at least two new civil noise enforcement positions. In particular, the nights and weekends current response for noise issues is deficient, with the Police Department being often tasked with responding. Many of these calls should be handled by a civilian and not law enforcement. One civilian position has already been budgeted and placed in contingent by Council. While I believe that these positions should have civil regulatory enforcement responsibilities beyond noise enforcement, such as zoning and SUP enforcement, it will be up to the new City Manager to review and to make enforcement recommendations to City Council. I have long thought that noise enforcement should be combined with the zoning and SUP enforcement function and those functions expanded to nights and weekends. Another concept is to combine far more or all of the City civil enforcement functions into a single operating unit. Such a single unit, if recommended will take time to study and to put in place. What the reduced role (if any) of the Police Department should be also needs to be sorted out. I believe, for example that the midnight to 8 a.m. noise calls for multi-family building noise complaints need to be handled by law enforcement and not a civilian employee. That is also an issue that the new City Manager will need to review and consider.
ATTACHMENTS:
1. Ordinance Cover
2. Ordinance
3. Summary of public comments received
4. Potential Variations to Policy Options
5. Presentation
STAFF:
Joanna Anderson, City Attorney
Christina Zechman Brown, Deputy City Attorney
Emily A. Baker, Deputy City Manager
Yon Lambert, Director, T&ES
William Skrabak, Deputy Director, T&ES
Dennis Andreas, Acting Assistant Police Chief
Khoa Tran, Environmental Program Manager, T&ES