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SR 03-07-2017 7A Ci ty Council Report City Council Meeting : March 7, 2017 Agenda Item: 7.A 1 of 4 To: Mayor and City Council From: David Martin, Director , Administration Subject: Introduction and First Reading of an Ordinance Amending Chapter 4.12 of the Santa Monica Municipal Code Regarding Noise Regulations Recommended Action Staff recommends that the City Council introduce for first reading an ordinance amending certain Sections 4.12.020 and 4.12.030 of the Santa Monica Municipal Code to exempt activities undertaken on outdoor public property in land use zones not exclusively designated as residen tial. Executive Summary At its April 12, 2016 meeting, Council directed staff to return with an amendment to the noise ordinance to exempt from the City’s noise ordinance non -commercial free speech activities within commercial zones between 7:00 am and 10 :00 p.m., with a provision to exclude activities that create excessive noise at a permanent residence, hospital, or school. Staff recommends the creation of a new exemption to the Noise Ordinance in response to Council’s direction. Background At its Apr il 12, 2016 meeting a staff administrative item was presented to Council with background information and a recommendation regarding the Noise Ordinance. The staff report with attachments from this meeting is included with this report as Attachment A and p rovides greater background information on prior Council actions. At this meeting, Council directed staff to return with an amendment to the noise ordinance to include language that non -commercial free speech in a commercial zone, not already covered by sp ecific laws such as those controlling the promenade and pier, that does not create excessive noise at a permanent residence or a hospital or a school, and that occurs between 7:00 a.m. and 10:00 p.m., be presumed to be a legal activity. Noise violat ions are currently enforced by both the City’s Police Department and the 2 of 4 Code Enforcement Division. Sworn police officers take the lead with events or complaints related to larger gatherings and after -hours complaints. Code Enforcement staff address prim arily construction -related noise complaints. Discussion The City’s Noise Ordinance (Santa Monica Municipal Code Chapter 4.12) currently exempts the following activities to varying degrees: 1. Activities conducted on public or private school grounds inclu ding, but not limited to, school athletic and school entertainment events; 2. 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 beach es. 4. Any alarm or emergency device, apparatus or equipment regulated by Municipal Code Sections 3.56.010 through 3.60.010; 5. Activities undertaken by governmental agencies to protect public health, safety or welfare; 6. Any activity regulated by Santa Monica Mu nicipal Code Section 10.04.04.010 et seq. (Aircraft Noise Abatement Code); 7. Any activity to the extent regulation thereof has been preempted by State or Federal law. The only limitation the Noise Ordinance currently places upon free -speech activities condu cted on outdoor public property resides in SMMC Section 4.12.025, which generally prohibits 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 unusu al 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. Of course, in addition to local law, state law, such as Califor nia Penal Code Section 415, also regulates noise on public (and private) properties. 3 of 4 Given Council’s direction to enhance First Amendment protections, staff proposes to add an additional exemption by amending the Noise Ordinance (see Attachment B) to exem pt any non -commercial activity on outdoor public property that occurs between the hours of 7:00 a.m. and 10:00 p.m., not including the Santa Monica Pier and Third Street Promenade that does not immediately abut any exclusively residential use. The exempti on would not apply when the non -commercial free speech creates excessive noise at a nearby permanent residence, hospital, or school. This language is intended to account for the fact that residential property can be constructed in virtually any land use z one within the city and many commercial areas already include mixed uses. Additionally, regardless of local law, Police officers would still enforce state law’s noise regulations, including California Penal Code Section 415’s prohibition against “dist urbing the peace”. California Penal Code Section 415 prohibits: 1. Unlawfully fighting, or challenging another person to fight, in a public space, 2. Disturbing another person by loud and unreasonable noise; if this is done willfully and maliciously, and 3. Using offensive words in a public place, if the words are likely to provoke an immediate violent reaction. In conducting community outreach on the proposed change , Unite Here, whose union organizing tactics and police response to them has generated past contro versy, has expressed support for the recommended option. On the other hand, reaction from the Chamber of Commerce and Downtown Santa Monica Inc. was critical of the approach. Members expressed concern about potential unintended consequences. Similar con cerns have surfaced from some activist members of neighborhood associations concerned about potential spillover impacts on residential areas adjacent to commercial strips although the recommended option is tailored specifically to allay that concern. Alte rnatives 4 of 4 Council could make no changes to the existing noise ordinance, since existing law would likely withstand a constitutional challenge and provides enforcement staff with the tools necessary to enforce noise related violations. Financial Impacts a nd Budget Actions There is no immediate financial impact or budget action necessary as a result of recommended action. Prepared By: Salvador Valles, Assistant Director of PCD Approved Forwarded to Council Attachments: A. April 12, 2016 Council Meeting Staff Report B. Ordinance C. Written Comments 1 Vernice Hankins From:Ellen Hannan <elhasm@gmail.com> Sent:Monday, March 06, 2017 2:50 PM To:Sue Himmelrich; Kevin McKeown Fwd; Ted Wint erer; Tony Vazquez; Gleam Davis; Rick Cole; David Martin; Andrew Hoyer; Clerk Mailbox Subject:Items 7a and 7b on city Council March 7, 2017 Sorry I am out of town on vacation. I agree with staff report on 7a. All or most of our commercial zones are to o close to residential areas. There should be a 2 hour limit on any permit or demonstra tion in the City. Police time is very valuable. I think 7b is a good start. I did not no tice any mention of a timeline or fine s for a property that would be in violation of the Property Ordi nance. For two many of the hidden LLC ow ners and developers it is just the cost of doing business. Will this be discussed? Thank you. Ellen Hannan 1218 9th St #6 Santa Monica, CA Item 7-A 03/07/2017 Item 7-A 03/07/2017 Board Members, Cont. Jeff Jarow PAR Commercial Real Estate Brokerage Jeff Klocke Pacific Park on the Santa Monica Pier Mitchell Kraus Capital Intelligence Associates Tim Kusserow Ca rlthorp School Leonard “Len” Lanzi Los Angeles Venture Association Paula Larmore Harding Larmore Kutcher & Kozal, LLP Jeff Lasky Hudson Pacific Properties, Inc. Matt Lavin Worthe Real Estate Group Richard Lawrence Commercial Bank of California Paul Leclerc Le Meridien Delfina Gary Loeb Chezgal Merchandising Creations Marcel Loh St John’s Health Center Providence Brian Mac Mahon Expert Dojo Ellis O’Connor MSD Hospitality Fai rmont Miramar Hotel & Bungalows Susan Gabriel Potter Bob Gabriel Insuranc e Nat Trives Coalition for Engaged Educations Juan Viramontes Georgian Hotel John Warfel Metropolitan Pacific Adam Weiss Cornerstone OnDemand, Inc. Chair Yesenia Monsour Kaiser Permanente Chair Elect West Hooker Locanda del Lago Past C hair Julia Ladd Santa Monica Place Chief Financial Officer Dave Nelson Tegner -Miller Insurance Brokers Vice Chairman Ba rbara Bishop BBPR, Inc. Vice Chairman Richard Chacker Perry’s Café and Bike Rentals Vice Chairman Justin Grant Morley Builders Vice Chairman Pat McRoskey Water Garden Vice Chairman Scott Schonfeld Linwood Ventures Board Members Daniel Abramson RA ND Corporation Matthew Allnatt Jonathan Club Alisha Auringer L A carGuy Ted Braun UCLA Health Julia Cooksey Frontier Communications Kiersten Elliott Santa Monica College Michael Gruning Pence Hawthorn Colby Goff Rustic Canyon Family Mike Harriel Sou thern California Gas Company Susan Inwood Wells Fargo Advisors, LLC Ma rch 6 , 2017 Santa Monica City Council 1685 Main Street, Room 102 Santa Monica, CA 90401 Re: Item 7A – Proposed Noise Ordinance Changes Dear Mayor Winterer and Councilmembers: The Santa Mo nica Chamber of Commerce strongly opposes the proposed changes to our Noise Ordinance . Exempting specific areas from the important protections that our noise ordinance provides is unfair to the residents, visitors, employees and local businesses in these a reas. This proposed change is completely unnecessary, and could expose the city to significant legal challenges. The Chamber strongly supports first amendment rights as an essential component of a healthy and open society. Santa Monica has a longstanding reputation for protecting the rights of individuals and organizations to express diverse points of view. We agree with the Staff Report from your April 16th meeting, which clearly states that the existing noise ordinance provides strong and sufficient fir st amendment protections, while also protecting our community members from uncomfortably loud noises. If a local resident, employee, or visitor is walking down Montana Ave or dining outdoors on Main Street, they deserve to be protected from noises that are so “harsh or prolonged or unnatural or unusual in their use, time, place as to cause physical discomfort”. We see no compelling reason to remove such a protection. Further, we worry that, as was stated in the staff report previously referenced, “Elimina ting noise enforcement in commercial districts would severely undermine the Police Department’s ability to respond to complaints.” We hope that you will seek further input from our Police Department before deciding on such a significant change. Item 7-A 03/07/2017 Item 7-A 03/07/2017 Chair Yesenia Monsour Kaiser Permanente Chair Elect West Hooker Locanda del Lago Past C hair Julia Ladd Santa Monica Place Chief Financial Officer Dave Nelson Tegner -Miller Insurance Brokers Vice Chairman Barbara Bishop BBPR, Inc. Vice Chairman Richard Chacker Perry’s Café and Bike Rentals Vice Chairman Justin Grant Morle y Builders Vice Chairman Pat McRoskey Water Garden Vice Chairman Scott Schonfeld Linwood Ventures Board Members Daniel Abramson RAND Corporation Matthew Allnatt Jonathan Club Alisha Auringer L A carGuy Ted Braun UCLA Health Julia Cooksey Frontier Communications Kiersten Elliott Santa Monica College Michael Gruning Pence Hawthorn Colby Goff Rustic Canyon Family Mike Harriel Southern California Gas Company Susan Inwood Wells Fargo Advisors, LLC Board Members, Cont. Jeff Jarow PAR Commercial Real Estate Brokerage Jeff Klocke Pacific Park on the Santa Monica Pier Mitchell Kraus Capital Intelligen ce Associates Tim Kusserow Carlthorp School Leonard “Len” Lanzi Los Angeles Venture Association Paula Larmore Harding Larmore Kutcher & Kozal, LLP Jeff Lasky Hudson Pacific Properties, Inc. Matt Lavin Worthe Real Estate Group Richard Lawrence Commer cial Bank of California Paul Leclerc Le Meridien Delfina Gary Loeb Chezgal Merchandising Creations Marcel Loh St John’s Health Center Providence Brian Mac Mahon Expert Dojo Ellis O’Connor MSD Hospitality Fai rmont Miramar Hotel & Bungalows Susan Gabri el Potter Bob Gabriel Insurance Nat Trives Coalition for Engaged Educations Juan Viramontes Georgian Hotel John Warfel Metropolitan Pacific Adam Weiss Cornerstone OnDemand, Inc. Considering all the negative impacts associated with this proposal, the Chamber encourages you to reject the proposed changes. Residents, visitors, employees, and local businesses deserve to be protected from loud and abrasive noise. Sincerely, Yesenia M onsour Laurel Rosen Chair President / CEO Item 7-A 03/07/2017 Item 7-A 03/07/2017 1 Vernice Hankins From:Council Mailbox Sent:Tuesday, March 07, 2017 8:25 AM To:Ted Winterer; Gleam Davis; Pam OConnor; Sue Himmelrich; Terry O’Day; Kevin McKeown Fwd; Tony Vazquez Cc:councilmtgitems; Elaine Polachek; David Martin Subject:FW: Tues night mtg: Agenda Item 7.A. Council ‐    Please  see  the  below  email  regarding  the  noise  ordinance.    Thank  you,    Stephanie     From: Victoria  Best  [mailto:vectord7@hotmail.com]   Sent: Monday, March  6, 2017  10:23  PM   To: Council  Mailbox  <Council.Mailbox@SMGOV.NET>  Subject: Tues  night  mtg: Agenda  Item  7.A.  Dear  Council  Member  and  Mayor  Winterer:    I  am  writing  this  evening  to  communicate  my  support  for  the  proposed  noise  ordinance, which  is  on  the   Agenda  for  the  Council  meeting  on  Tuesday, March  7.      I  think  that  the  exemptions  (copied  from  the  proposed  ordinance  and  pasted  below) are  consistent  with  the   need  for  free  speech  in  Santa  Monica, which  I  consider  to  be  very  important, ESPECIALLY  at  this  time  in  light  of   our  repressive, kleptocratic, corrupt, oligarchic, racist, sexist  and  exclusionary  administration  in  Washington,  D.C.    The  residents  of  this  city  and  this  country  must  be  able  to  resist  exploitation, racism, sexism, and  other  abuses   of  power  by  speaking  out  and  communicating  vital  information  to  the  public.  Since  those  with  the   greatest  power  and  money  have  the  greatest  ability  to  fill  the  airwaves  and  other  arenas  of  public  discourse   with  disinformation  and  distracting  "noise," those  whose  lives, livelihoods, health  and  well ‐being  are  put  in   jeopardy  by  abuses  of  power  need  the  protectio ns  in  our  First  Amendment  to  be  able  to  make  their   communications  heard  by  as  many  as  possible.      I  am  grateful  that  Santa  Monica  stands  tall  as  one  of  the  cities  in  this  country  that  is  taking  principled  stands   against  the  recently  intensified  overreach  of  power  and  oppression  of  those  who  are  marginalized, mistreated,  and  labeled  "other."  This  ordinance  is  but  one  more  tool  to  buttress  our  ability  to  resist, as  well  as  to  protect   each  other.      Thank  you.    Sincerely,  Victoria  Best   Item 7-A 03/07/2017 Item 7-A 03/07/2017 2 3111  ‐ 4th  Street, #412   Santa  Monica, CA   90405     Item 7-A 03/07/2017 Item 7-A 03/07/2017 1 Vernice Hankins From:Council Mailbox Sent:Tuesday, March 07, 2017 8:25 AM To:Ted Winterer; Gleam Davis; Pam OConnor; Sue Himmelrich; Terry O’Day; Kevin McKeown Fwd; Tony Vazquez Cc:councilmtgitems; Elaine Polachek; David Martin Subject:FW: Upcoming noise ordinance Council ‐    Please  see  the  below  email  regarding  the  noise  ordinance.    Thank  you,    Stephanie       From: Cathie  Gentile  [mailto:cathiegentile1953@gmail.com]   Sent: Monday, March  6, 2017  2:12  PM   To: Council  Mailbox  <Council.Mailbox@SMGOV.NET>  Subject: Upcoming  noise  ordinance   Dear Honorable Council Members: As a 31-year-resident of Santa Monica, I am writin g in support of the revised noise ordinance which will be discussed at the Tuesday, March 7 Council Meeting. I am urging that changes are vo ted on to protect free speech in our community. Now, more than ever, we need to be able to speak out in amplified ways against injustice and oppression. Thank you, Catherine M. Gentile 90405 Item 7-A 03/07/2017 Item 7-A 03/07/2017 1 Vernice Hankins From:Council Mailbox Sent:Tuesday, March 07, 2017 8:28 AM To:Ted Winterer; Gleam Davis; Pam OConnor; Sue Himmelrich; Terry O’Day; Kevin McKeown Fwd; Tony Vazquez Cc:councilmtgitems; Elaine Polachek; David Martin Subject:FW: Noise Exemption Council ‐    Please  see  the  below  email  regarding  the  noise  ordinance.    Thank  you,    Stephanie       From: Joseph  Miller  [mailto:josephmiller5@me.com]   Sent: Friday, March  3, 2017  5:02  PM   To: Council  Mailbox  <Council.Mailbox@SMGOV.NET>  Cc: Lawrence  R  <larud9233@gmail.com>  Subject: Noise  Exemption   Council Members, We recently became aware of the proposed noise ordinance exemption that would render the current noise ordinance irrelevant thr oughout many of the commercial areas of the city. The current noise ordinance already fairly supports the public’s ability to exercise their right to free speech and many folks successfully do express themselves frequently. At the same time the current legislation is thoughtf ully crafted so that residents and patrons of the city can be made aware of the individual or individuals exercising their rights and speaking their mind but simultaneously others do not feel harassed or deterred from spe nding time in the public zones of the city. Exempting anyone fr om the current noise ordinance will hurt the community unnecessarily. We have heard comments that civil unrest should not be comfortable. We agree. We also believe the current demonstrations and free speech exercises which frequently take place around the city are already uncomfortable. When we walk with our families and friends th rough the commercial areas of Santa Monica we currently cross the street when there are protesters holding signs or folks shouting about their religious beliefs. It’s an inconvenience and sometimes the language can be scary but we support the rights of those shouting about relig ion or work environment or the dissatisfaction with the President of the Unit ed States or other topics. Ou r current law already supports t he ability for folks interested in exercising free speech to do so and make others in the public uncomfortable in order to punctuate their poi nt. This right shouldn’t become threatening or painful for bystanders, resident s, public, workers, businesses or tourists who experience Santa Monica every day. A healthy balance already exists. The current balance already makes for a healthy ecosystem for all constituents but a noise ordinance exemption would tip the balance and unnecessarily negatively impact other members of the community. Vote the noise exemption down and send the message that our current ordinance constitutionally supports free speech just as sim ilar laws do in other cities throughout California and around the country, and simultaneously send the message that we support our peace off icers who have the difficult job of enforcing the current ordinance but we trust them to do so. This is common sense. Item 7-A 03/07/2017 Item 7-A 03/07/2017 2 Thanks for listening and for all of the dedicated hard work you do for the City of Santa Monica. Joe Miller Lawrence Rudolph Rudy & Hudson Californa Diner Item 7-A 03/07/2017 Item 7-A 03/07/2017 1 Maria Dacanay From:Elena Christopoulos <elena @elenachristopoulos.com> Sent:Tuesday, March 07, 2017 11:48 AM To:councilmtgitems; Ted Winterer; Gleam Davi s; Sue Himmelrich; Kevin McKeown Fwd; Pam OConnor; Terry O’Day; Tony Vazquez Subject:Item 7-A: writing in opposi tion to the proposed changes Importance:High Follow Up Flag:Follow up Flag Status:Completed Dear City Council, As a downtown resident and President of the Down town Neighborhood Associati on (DNA), I am writing to strongly oppose the proposed changes listed in Item 7-A, “Introduction an d First Reading of an Ordinance Amending Chapter 4.12 of the Santa Monica Municipal Code Regarding Noise Regulations.” Exempting specific areas from important protections that our noise ordinance provides is unfair to my neighbors, employees and local businesses. This proposed ch ange could also expose the city to significant legal challenges. The existing noise ordinance provid es sufficient first amendment prot ections, while also protecting my neighborhood from uncomfortably loud noises. As a downt own resident, I am thankful for all of the public space we have. This allows for runs on the beach, walking through my neighborhood and dining outside. My neighbors and I deserve to be protected from noises that are so “harsh or prolonge d or unnatural or unusual in their use, time, place as to cause physical discomfort”. Thank you. Elena Christopoulos Energy - Sustai nability - Political Consultant Commissioner, City of Santa Monica C 1.310.866.2922 E elena@elenachristopoulos.com -- Follow me on Twitter: @Elenach elenachristopoulos.com www.facebook.com/elena.ecmc Item 7-A 03/07/2017 Item 7-A 03/07/2017 Item 7-A 03/07/2017 Item 7-A 03/07/2017 Item 7-A 03/07/2017 Item 7-A 03/07/2017 Item 7-A 03/07/2017 Item 7-A 03/07/2017 Item 7-A 03/07/2017 Item 7-A 03/07/2017 Item 7-A 03/07/2017 Item 7-A 03/07/2017 Item 7-A 03/07/2017 Item 7-A 03/07/2017 Item 7-A 03/07/2017 Item 7-A 03/07/2017 Item 7-A 03/07/2017 Item 7-A 03/07/2017 Item 7-A 03/07/2017 Item 7-A 03/07/2017 Item 7-A 03/07/2017 Item 7-A 03/07/2017 Item 7-A 03/07/2017 Item 7-A 03/07/2017 Item 7-A 03/07/2017 Item 7-A 03/07/2017 Item 7-A 03/07/2017 Item 7-A 03/07/2017 Item 7-A 03/07/2017 Item 7-A 03/07/2017 Item 7-A 03/07/2017 Item 7-A 03/07/2017