[Council Communication] [Unnecessary Noise Regulations]

Council Communication

Title:	Update and Process for Approving Night Paving Work on Siskiyou Boulevard from 3rd Street to Walker Avenue
Dept:	Public Works Department
Date:	September 2, 2003
Submitted By:	Paula Brown
Approved By: ...........................	Gino Grimaldi, City Administrator

Synopsis:	LTM is continuing progress on Siskiyou Boulevard and is now in a position to discuss paving operations along Siskiyou Boulevard. Although it is LTM's responsibility to meet all local ordinances, including Ashland's Noise Ordinance, they are asking for a permit in accordance with AMC Section 9.08.170.B and a variance from the decibel levels in Section C so that they have the option to complete paving work at night at the end of September and into October.
Recommendation:	At this time, this is an informational item only as final schedules are not yet completed. Should LTM continue to pursue night work, Council will need to hold a public hearing (likely September 16) and then provide direction to staff for LTM's approval.
Fiscal Impact:	Although there is no tangible fiscal impact to the City to allow night work, the intangible benefit to the community is positive as this would minimize the traffic impacts during paving operations.
Background:	The City's Municipal Code is very specific regarding the hours of allowable noise. The first Section states "No person shall make, assist in making, continue, or cause to be made any loud, disturbing, or unnecessary noise which either annoys, disturbs, injures, or endangers the comfort, repose, health, safety, or peace of others." Construction activities are exempted between the hours of 7am to 9pm (Section C.4); noises in excess of specific decibel levels are considered public nuisances (Section C), yet the Council can provide a variance (Section C.5). There are three parts to the paving operation: 1) minor grinding along the project area in some specific locations and the initial asphalt pre-leveling course along the entire length of the project; 2) concrete dividers at the ends of the medians at each turn lane; 3) final top lift of paving. LTM's schedule shows the initial pre-leveling and grinding portions to be completed in October. If they are allowed to completed this work at night, they will be able to complete the entire first section (pre-leveling and grinding) the week of September 25, 2003. Grinding operations are only in patches, not the entire length of the project. They would still have to complete the top lift of paving in mid-October after the concrete dividers are completed at ends of each of the median turn lanes. LTM will also likely wait for the completion of signal pole installation before they would complete the top lift of paving, but that is also scheduled to be completed by mid-October. LTM's contract allows completion through the end of December. It appears as though the majority of the work will be completed by the end of October. The grinding and paving portion of the roadwork will exceed "allowable" decibel limits during the work period, but are exempted as "construction activities" between the hours of 7am to 9pm (Section C.4). Strict compliance with the Decibel Noise Standards would eliminate the ability to complete the grinding and paving work. Strict compliance with the Decibel Noise Standards would cause unusual and unreasonable hardship. If the work can proceed quickly with less impact for a shorter duration, it is reasonable for Council to grant the variance. Staff would recommend the following restrictions should LTM continue to pursue night paving: 1) NO night work after 9pm if the air temperatures are predicted to drop below 40 degrees. 2) Contractor must maintain one operable travel lane in each direction during this night work period. Night work will allow the grinding and paving operation to be completed quicker with less overall impacts to traffic. 3) NO night work between between 9pm Friday to 7am Monday. 4) There will be periods of intermittent intersection closures during the grinding and paving operation and that the contractor will follow safety precautions and notify emergency dispatch during these periods.
Attachments:	AMC 9.08.170 Unnecessary Noise

A. No person shall make, assist in making continue, or cause to be made any loud, disturbing, or unnecessary noise which either annoys, disturbs, injures, or endangers the comfort, repose, health, safety, or peace of others.

B. The standard for judging loud, disturbing and unnecessary noises shall be that of an average, reasonable person with ordinary sensibilities after taking into consideration the character of the neighborhood in which the noise is made and the noise is heard. Such noises which are in violation of this section include but are not limited to the following: (Ord. 2607 S1, 1990)

1. The keeping of any bird or animal which by causing frequent or long-continued noise disturbs the comfort and repose of any person in the vicinity;

2. The attaching of a bell to an animal or allowing a bell to remain on an animal;

3. The use of a vehicle or engine, either stationary or moving, so out of repair, loaded, or operated as to create any loud or unnecessary grating, grinding, rattling, or other noise;

4. The sounding of a horn or signaling device on a vehicle on a street, public place, or private place, except as a necessary warning of danger;

5. The blowing of a steam whistle attached to a stationary boiler, except to give notice of the time to begin or stop work, as a warning of danger, or upon request of proper City authorities;

6. The use of a mechanical device operated by compressed air, steam, or otherwise, unless the noise thereby created is effectively muffled;

7. The erection, including excavation, demolition, alteration, or repair of a building in residential districts, other than between the hours of seven (7:00) a.m. and six (6:00) p.m. weekdays, and on weekends and Holidays between the hours of eight (8:00) a.m. and six (6:00)p.m., except in case of urgent necessity in the interest of the public welfare and safety and then only with a permit granted by the City Administrator for a period not to exceed ten (10) days. The permit may be renewed for periods of five (5) days while the emergency continues to exist. If the Council determines that the public health, safety and welfare will not be impaired by the erection, demolition, alteration, or repair of a building between the hours of six (6:00) p.m. and seven (7:00) a.m., and if the Council further determines that loss or inconvenience would result to any person unless the work is permitted within these hours, the Council may grant permission for such work to be done within specified hours between six (6:00) p.m. and seven (7:00) a.m. upon application therefore being made at the time the permit for the work is awarded or during the progress of the work. (Ord. 2580, 1990)The actual owner of property may do work on property which is actually owner occupied between the hours of six (6:00) p.m. and ten (10:00) p.m. without obtaining a permit as herein required;

8. The use of a gong or siren upon a vehicle, other than police, fire, or other emergency vehicle;

9. The creation of excessive noise on a street adjacent to a school, institution of learning, church, or court of justice, while the same are in use, or on a street adjacent to a hospital, nursing home, or other institution for the care of the sick or infirm, which unreasonably interferes with the operation of such institution or disturbs or unduly annoys patients;

10. The discharge in the open air of exhaust of a steam engine, internal combustion engine, motorboat, or motor vehicle except through a muffler or other device which will effectively prevent loud or explosive noises and the emission of annoying smoke;

11. The use or operation of an automatic or electric piano, phonograph, gramophone, Victrola, radio, television, loudspeaker, or any instrument for sound producing or any sound-amplifying device so loudly as to disturb persons in the vicinity thereof or in such a manner as renders the use thereof a nuisance. However, upon application to the City Administrator and a report from the Chief of Police, the City Administrator may grant permits to responsible persons or organizations for the broadcast or amplification of programs of music, news, speeches, or general entertainment as a part of a national, state or City event, public festivals, or special events of a noncommercial nature. If the City Administrator disapproves such a permit, the matter may be appealed to the City Council whose decision shall be final. The broadcast or amplification shall not be audible for a distance of more than one thousand (1,000) feet from the instrument, speaker, or amplifier, and in no event, shall a permit be granted where any obstruction to free and uninterrupted traffic, both vehicular and pedestrian, will result. (Ord. 2307, 1984)

12. The making of a noise by crying, calling, or shouting or by means of a whistle, rattle, bell, gong, clapper, horn, hammer, drum, musical instrument, or other device for the purpose of advertising goods, wares, or merchandise, attracting attention, or inviting patronage of a person to a business. However, newsboys may sell newspapers and magazines by public outcry;

13. The conducting, operating, or maintaining of a garage within one hundred (100) feet of a private residence, apartment, rooming house, or hotel in such manner as to cause loud or disturbing noises to be emitted therefrom between the hours of eleven (11:00) p.m. and seven (7:00) a.m. (Ord. 1559 S17, 1968)

C. Any source of noise which exceeds the following standards is considered a public nuisance:

1. Decibel Noise Standards
Allowable Statistical Noise Levels in any One Hour
7 a.m. to 9 p.m. 9 p.m. to 7 a.m.
L50--50 DBA L50--45 DBA
L10--55 DBA L10--50 DBA
L1--60 DBA L1--55 DBA
where:
L50 = noise level exceeded 50% of the time
L10 = noise level exceeded 10% of the time
L1 = noise level exceeded 1% of the time

2. Standards for measurement. Standards for measurement of noise sources shall be described in "Sound Measurement Procedures Manual," current revision, as adopted by the State Department of Environmental Quality.

3. Where measured. Measurement of a noise source shall be made from the closest residential structure in a residential zone.

4. Construction activities exempted. Noise from temporary construction activities is exempted from the noise performance standards from 7:00 a.m. to 9 p.m.

5. Variances. The Council may grant variance to the Decibel Noise Standards when it finds that strict compliance with the ordinance would cause an unusual and unreasonable hardship to a commercial or industrial use.

a. The Council shall notify all adjacent residential structures within 200 ft. of the proposed variance and shall hold the public hearing on the variance prior to making any decisions on the request for a variance.

b. The variance shall be the minimum necessary to alleviate the unreasonable hardship.

(Ord 2215, 1982)