SR-02-10-2015-7ACity Council Meeting: February 10, 2015
Agenda Item: :i —A
To: Mayor and City Council
From: Marsha Jones Moutrie, City Attorney
Subject: Proposed Amendment to Noise Ordinance
Recommended Action
Staff recommends that the City Council introduce for first reading the attached
ordinance which would amend the City's noise regulations to better protect the
community's health and welfare and to insulate the regulations against a legal
challenge.
Executive Summary
The City has received various comments and suggestions about the content of its noise
ordinance. The public input includes questions about enforcement, noise generated by
Community Events, and banning amplification, among other things. Staff plans to
undertake a full scale review of the noise ordinance after the zoning code update is
completed. Meanwhile, one commentator on the noise ordinance, the local American
Civil Liberties Union (ACLU), has threatened to sue the City if the noise ordinance is not
amended to address the organization's constitutional claims.
The City believes that the noise ordinance is constitutional in its present form.
Nonetheless, the ACLU's claims have been evaluated, and staff is recommending a few
amendments to improve the ordinance and respond to the ACLU's concerns. Among
other things, the amendments would add a new general prohibition against noise that is
unreasonably disruptive to persons of normal sensitivity. And, it would clarify that the
general prohibition, but not the specific decibel limits, would apply to activities in or on
public streets, parks, and other public property.
Additionally, in response to inquiries from the public, this report provides legal
information relating to the scope of the City's authority to regulate noise, including
amplified sound.
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Background
Over the years, the City has received many complaints about excessive noise. Some
reflect the facts that Santa Monica is very dense and that commercial uses on the City's
major boulevards and commercial streets are adjacent to or are across alleys from
residences. Other noise complaints arise because the City offers both residents and
the entire region many entertainments and events, which occur in venues near
residences and which often include amplified sound. And, over the years, the City has
responded by improving its capacity for noise enforcement. However, complaints
continue.
Protections against excessive noise have been included in the Municipal Code for
decades. The code has contained general noise regulations since at least 1987. The
current general noise ordinance, Municipal Code Section 4.12, was updated and
substantially revised in 2004. It divides the City into three Noise Zones and establishes
decibel limits applicable to each. However, it contains no general prohibition against
excessive /disruptive noise because, at the time the ordinance was last updated, it was
not clear that such general, and arguably vague, prohibitions would withstand
constitutional challenges.
In the years since 2004, the courts have issued decisions that clarify municipal authority
to regulate noise. Those decisions and their import are summarized in the Discussion
Section of this report. And, they are the basis for the recommendation presented by this
report.
Last year, a protestor at a local hotel was warned and then cited for violating the
operative decibel limit. In response to this enforcement, the ACLU wrote to the City
Attorney, threatening litigation if the noise ordinance was not amended. Specifically, the
ACLU's letter asserts that the noise ordinance is unconstitutional because the decibel
limits are unreasonably low relative to ambient noise levels, the exemption from decibel
limits for Community Events is unjustified, and the ordinance gives enforcement
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personnel too much discretion. In response to that complaint, legal staff reviewed the
current case law on municipal noise limits.
Discussion
The proposed modifications to the City's noise ordinance are based on legal staff's
review of the current ordinance and the law. Though staff does not agree with the
ACLU's contentions, current law allows for improvements to the law that would both
benefit the community and address the ACLU's concerns.
The proposed ordinance would improve the noise ordinance by adding a general
prohibition against excessive noise, which would apply throughout the City.
Specifically, this provision would prohibit noise that would "unreasonably disturb the
peace, quiet and comfort of persons of normal sensitivity" and noise that is "so harsh or
prolonged or unnatural or unusual in [its] use, time or place as to cause physical
discomfort to any persons of normal sensitivity...." Such general prohibitions have
been adopted in other cities and upheld by the courts. See, e.g. Rosenbaum v. San
Francisco, 484 F.3d 1142 (9th Cir.2007). And, the City made such a prohibition
applicable to the Third Street Promenade in 2007 in conjunction with an update of laws
governing street performance.
The proposed ordinance would retain the current decibel limits. It may be that the City
should consider modifying them, particularly if a study were to show that there have
been changes in ambient sound levels since the decibel limits have been adopted.
And, such a study might well be undertaken in conjunction with the Planning
Department's anticipated work on the noise ordinance. However, that is a much larger
project; and the work is unnecessary for the currently proposed improvements to the
ordinance.
While the decibel limits would be retained, the proposed ordinance would alter the
exemptions. They would be modified so that the decibel limits would not apply to
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activities on public property, including streets and parks. This would eliminate the issue
of whether the decibel limits unlawfully interfere with the exercise of First Amendment
rights in public forums. Instead, noise would be limited in public spaces by the new,
general prohibition on excessive noise. Likewise, the proposed modifications would
address the contention that the exemption from decibel limits for Community Events is
unjustified because Community Events, which only occur on public property, would not
be subject to the decibel limits, but would be subject to the general prohibition against
excessive noise just as any other activity occurring on public property. And, finally, staff
believes that subjecting Community Events and other activities on public property to the
proposed general prohibition against excessive noise would not confer too much
discretion on law enforcement personnel because the courts have approved such
limitations and provided guidance on the how to enforce them. See, etc ., Hampsmire v.
Santa Cruz, 899 F. Supp.2d 922 (N.D.Cal.2012)[explaining that whether noise violates
such prohibitions depends on the circumstances, including, among other things: the
activities and noise level typical of the area, the distance from which the noise can be
heard, the disruption caused by the noise]. The proposed ordinance incorporates this
judicial guidance in order to provide additional direction to law enforcement personnel.
The proposal also includes minor modifications to the remedies provision of the noise
ordinance. One modification is to prohibit any person from interfering with or resisting
efforts by law enforcement personnel to enforce the City's noise laws, such as the
taking of noise readings. Additionally, the proposed ordinance would allow violations to
be handled as either infractions or misdemeanors. This judgment would be made by
enforcement personnel in coordination with City Prosecutors, based on the
circumstances, as is the case with many other Municipal Code violations.
Staff is not recommending any changes to the noise ordinance that would specifically
address amplification. Many community members have requested amplification bans,
but First Amendment case law narrowly limits the City's authority in this area. See, e.q.,
Maldonado v. Monterey County, 330 F.Supp. 1282 (N.D. Cal. 1971) (finding
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unconstitutional the County of Monterey's prohibition against use of amplification on
streets, sidewalks, and hiking trails); Reeves v. McConn, 631 F.2d 377 (5th Cir. 1980)
(rejecting a City ordinance which prohibited amplified sound 1) City wide between 7:00
pm and 10:00 am; 2) within 100 yards of hospitals, schools, or courthouses, or within 50
yards of any residence including hotels or motels). The courts have supported only the
narrowest of amplification restrictions.
Laguna Beach's amplification litigation provides the most recent example. An anti-
abortion activist challenged that city's ordinance, which was a narrow amplification ban.
It merely prohibited the use of sound - amplification equipment: (a) within 100 yards of a
school and within 30 minutes of dismissal; (b) within 100 yards of City Hall; and (c) city-
wide between the hours of 5:00 pm and 9:00 am.
The Ninth Circuit upheld the ban on amplified sound close to schools within half an hour
of dismissal based on the evidentiary showing that there were academic activities
ongoing after school that would be disrupted by amplified sound. Otherwise, the bans
were found to be unconstitutional. The court struck down the ban on amplified sound
near City Hall for several reasons, including City Hall is the place where citizens are
expected to express their views and the level of amplification in question was only
minimally disruptive. Additionally, the Ninth Circuit struck down the city -wide ban on
amplification after 5:00 pm as impermissible content -based regulation because other
speakers, including private organizers of community events were allowed to use
amplification after 5:00 pm. Klein v. City of Laguna Beach, 381 Fed.Appx.723 (9th Cir.
2010); see also, Klein v. Laguna Beach, 983 F. Supp.2d 1162 (C.D.Cal.
2013)[summarizing the history of the case and ruling on fee and cost claim for over $2
million].
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Alternatives
Council could defer any revision to the noise ordinance until the Planning Department
proposes updates. However, given the department's current workload, that could take
some time. And, the threatened lawsuit may be filed if the City attempts to enforce the
current ordinance.
Next Steps
Following adoption of the proposed ordinance, legal staff would work with enforcement
personnel on protocols for enforcing the new general noise limitation, and enforcement
would begin.
Planning staff anticipates proposing new noise standards after adoption of the new
zoning code. They estimate that would occur next year, at the earliest.
Financial Impacts & Budget Actions
There is no immediate financial impact or budget action necessary as a result of
recommended action.
Prepared by: Marsha Jones Moutrie, City Attorney
Yibin Shen, Deputy City Attorney
Approved: Forwarded to Council:
Attachments: Proposed Noise Ordinance
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LN P,
Elaine Polachek
Interim City Manager
Council Meeting: February 10, 2015 Santa Monica, California
ORDINANCE NUMBER (CCS)
(City Council Series)
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA MONICA
UPDATING CHAPTER 4.12 OF THE SANTA MONICA MUNICIPAL CODE RELATED
TO NOISE REGULATIONS
WHEREAS, the City consists of just eight square miles of coastal land which is
home to 90,000 residents, the job site of 300,000 workers, and a destination for as
many as 500,000 visitors on weekends and holidays; and
WHEREAS, the City's population density of 11,200 persons per square mile is
the highest among coastal communities in Los Angeles County and among the highest
in the State; and
WHEREAS, in addition to its large residential population, the City is a very
desirable place to work or visit; and
WHEREAS, because of the manner in which the City is zoned, many of the City's
residential districts abut the City's commercial and industrial districts; and
WHEREAS, most of the City's commercial districts are mixed -use, authorizing
substantial residential development; and
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WHEREAS, the City's public places are heavily utilized and special efforts must
be undertaken to maintain them and facilitate their shared use and availability to all; and
WHEREAS, these above circumstances can lead to excessive noise and make
the regulation of noise a paramount concern of the community; and
WHEREAS, the City receives a significant number of noise complaints
throughout the City on an ongoing basis; and
WHEREAS, excessive noise is a serious hazard to the public health, welfare,
safety and the quality of life; and
WHEREAS, excessive noise can cause communication interference, sleep
disturbance, adverse physiological responses, and the overall loss of one's quality of
life; and
WHEREAS, a substantial body of science and technology exists by which
excessive noise may be substantially abated; and
WHEREAS, the residents and visitors of the City have a right to and should be
ensured an environment free from excessive noise and vibration that may jeopardize
their health, welfare or safety or degrade the quality of life; and
WHEREAS, the City's Noise Element requires the City to develop measures to
control non - transportation noise impacts including maintenance of a community noise
ordinance that ensures that City residents are not exposed to excessive noise levels
from stationary noise sources; and
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WHEREAS, the City is committed to providing the public with maximum opportunities
for free expression, consistent with state and federal constitutional protections, while
ensuring that excessive sound and vibration which may jeopardize the health, welfare or
safety of its citizens or degrade the quality of life is minimized.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SANTA MONICA
DOES HEREBY ORDAIN AS FOLLOWS:
Section 1. Section 4.12.025 of the Santa Monica Municipal Code is hereby
added to read as follows:
4.12.025 General Regulation
It shall be unlawful for any person to make, produce maintain cause or permit to
be made any noises or sounds in such manner so as to unreasonably disturb the
peace quiet and comfort of persons of normal sensitivity within the area of audibility or
which are so harsh or prolonged or unnatural or unusual in their use time or place as to
cause physical discomfort to any person of normal sensitivity within the area of
audibility.
The factors to be considered in determining whether a violation of this Section
has occurred shall include, but not be limited to the following:
1. The volume of the noise;
2. The intensity and duration of the noise;
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3. Whether the noise is constant, recurrent or intermittent;
4 The nature and zoning of the area within which the noise emanates;
5 The proximity of the noise to noise - sensitive land uses such as hospitals,
schools recovery facilities or any facility that regularly accommodates a person or
persons who may be sleeping;
and
6 The volume and intensity of the background noise;
7 The density of the land uses of the area within which the noise emanates;
8. The time of day or night the noise occurs.
Section 2. Section 4.12.030 of the Santa Monica Municipal Code is hereby
amended to read as follows:
4.12.030 Exemptions.
(a) The following activities shall be exempt from the provisions of this Chapter,
except for section 4.12.030 or unless otherwise expressly identified in any section of
this Chapter:
(1a) Activities conducted on publiG parks, publiG playgrounds and public or
private school grounds including, but not limited to, school athletic and school
entertainment events;
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(2b) Community events;
(3) Activities conducted on public property that is generally open to the
public, including but not limited to streets sidewalks, alleys, parkways, parks, and
beaches.
(b) The followinq activities shall be exempt from the provisions of this Chapter
unless otherwise expressly identified in any section of this Chapter:
(1e) Any alarm or emergency device, apparatus or equipment regulated by
Municipal Code Sections 3.56.010 through 3.60.010;
(2b) Activities undertaken by governmental agencies to protect public health
safety or welfare;
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(3#) Any activity regulated by Santa Monica Municipal Code Section
10.04.04.010 et seq. (Aircraft Noise Abatement Code);
(4h) Any activity to the extent regulation thereof has been preempted by
State or Federal law.
Section 3. Section 4.12.190 of the Santa Monica Municipal Code is hereby
amended to read as follows:
4.12.190 Criminal remedies.
(a) It shall be unlawful for any person to violate any provision, or to fail to
comply with any of the requirements of this Chapter.
(b) It shall be unlawful for anv person to interfere with or resist any efforts by
law enforcement personnel to enforce anv provision of this Chapter, including but not
limited to the taking of any noise measurement.
(c) Unless otherwise specifically provided, Aany person violating any of the
provisions of this Chapter shall be guilty of an infraction, which
shall be punishable by a fine not exceeding two hundred fifty dollars ($250.00), or a
misdemeanor,
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-..--.l,ess otherwise provided, and upon conviction thereof which shall ba.
punishable by a fined in notte exceedinn five hundred dollars 500.00
or be- by_imprisonmenteb in the C4ty- County Jail for a period not4a exceeding six months
or by both such fine and imprisonment. Each such person shall be guilty of a separate
offense for each and every day during any portion of which any violation of any
provision of this Chapter is committed, continued or permitted by such person and shall
be punishable accordingly.
Section 4. Section 4.12.210 of the Santa Monica Municipal Code is hereby
amended to read as follows:
4.12.210 Administrative guidelines.
The Community Noise Officer sha1l—ma1 prepare administrative guidelines to
implement this Chapter
Section 5. Any provision of the Santa Monica Municipal Code or appendices
thereto inconsistent with the provisions of this Ordinance, to the extent of such
inconsistencies and no further, is hereby repealed or modified to that extent necessary
to effect the provisions of this Ordinance.
Section 6. If any section, subsection, sentence, clause, or phrase of this
Ordinance is for any reason held to be invalid or unconstitutional by a decision of any
court of competent jurisdiction, such decision shall not affect the validity of the
remaining portions of this Ordinance. The City Council hereby declares that it would
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have passed this Ordinance and each and every section, subsection, sentence, clause,
or phrase not declared invalid or unconstitutional without regard to whether any portion
of the ordinance would be subsequently declared invalid or unconstitutional.
Section 7. The Mayor shall sign and the City Clerk shall attest to the passage of
this Ordinance. The City Clerk shall cause the same to be published once in the official
newspaper within 15 days after its adoption. This Ordinance shall become effective 30
days from its adoption.
APPROVED AS TO FORM:
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