HomeMy WebLinkAboutAGENDA REPORT 1998 0506 CC REG ITEM 11EAGENDA REPORT
City of Moorpark
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TO: Honorable City Council
FROM: Nelson Miller, Director of Community Developme
Wayne Loftus, Planning Manager
DATE: April 22, 1998 (CC Meeting of 5/6/98)
SUBJECT: CONSIDER ADOPTION OF NOISE ORDINANCE BY ADDING CHAPTER
17.53 - NOISE ORDINANCE TO THE MUNICIPAL CODE, WHICH
WILL IMPLEMENT THE NOISE ELEMENT AND ESTABLISH
STANDARDS AND PROCEDURES TO CONTROL NOISE IN THE CITY
OF MOORPARK; GENERAL PLAN AMENDMENT 97 -04 AND ZONING
CODE AMENDMENT 97 -07
Background:
On March 4, 1998, the City Council closed the public hearing,
adopted Resolution No. 98 -1443 amending the General Plan to
include an updated Noise Element, and continued first reading of
the Noise Ordinance to March 18, 1998, for revisions to the
ordinance. This item was subsequently continued to April 15 and
May 6, 1998, to allow additional City Attorney review. The City
Attorney has suggested that several sections should be rewritten.
A continuance of this item is requested to allow adequate time
for staff to prepare revisions and additional City Attorney
review.
Recommendation:
Continue the first reading of the Noise Ordinance to June 3,
1998.
D: \1m \98wayne \6 -3cc Noise ord.wpd /12:20 PM
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WRITER'S DIRECT DIAL:
213- 236 -2721
OUR FILE NO. 01368 -102
April 3, 1998
Mr. Wayne Loftus
Planning Manager
City of Moorpark
799 Moorpark Avenue
Moorpark, California 93021
Re: Noise Ordinance
Dear Wayne:
By telephone conference on March 12, 1998, you requested
review of the above - described document. My specific comments are
noted below. In addition, I enclose a copy of the ordinance
interlineated with typographical and grammatical corrections as
well as changes to make the document internally consistent and
consistent with the format of the Municipal Code.
Sec. 17.53.020 Definitions
The radical difference between the way the definitions of
"construction" and "demolition" are structured is bound to lead to
disputes regarding interpretation.
I assume that you are aware that the definition of "real property
boundary" excludes contiguous lots that are in a single ownership
and that the term "real property boundary" is not used in the body
of the ordinance. What is used is "real property line ", an
undefined term.y
V You may want to do an electronic search of all of the defined
terms, conforming the terminology to the body of the ordinance
and eliminating terms that are not used in the body.
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APR 61998
000 31
Mr. Wayne Loftus
April 3, 1938
Page 2
See. 17.53.040 Coordination and Cooperation
The reference to enforcement of the "provisions of this section" is
nonsensical given that the section contains no enforceable
provisions, and the reference to "other departments" is nonsensical
given that no department is identified in the first instance.
See. 17.53.050 Inspections
I question the rationale for this section. On the one hand, the
section only serves to suggest that the City has relinquished its
discretion to conduct other types of inspections, since inspections
are not addressed elsewhere in the Municipal Code. On the other
hand, the section is gratuitous, since the right to inspect and the
circumstances under which inspections may be conducted is governed
by statutory and case law. More particularly, I question why the
City would want to limit itself to "search" warrants when an
"inspection" warrant is generally easier to obtain or a "seizure"
warrant may be justified. Regardless of whether or not the City
ultimately elects to so limit itself, the last phrase of the second
sentence and all of the last sentence are inappropriate to an
ordinance. The showing that must be made to obtain a warrant is a
matter of law that cannot be dictated by the.City. Whether or not
tests can be administered under a warrant is a matter for the
courts to decide on a case by case basis; it is not a matter that
can be dictated by the City.
Sec. 17.53.060 Discretionary Actions
"Noise sensitive land use" is not a defined term, and without a
definition, application of this section is vulnerable to attack as
being arbitrary and capricious. Title 17 of the Municipal Code
does not designate the City Council as the approval authority for
all discretionary permits; hence this section cannot be reconciled
with the remainder of the title.
Sec. 17.53.070 Noise Measurement Procedures and Noise Limits
Subsection I.C. conflicts with subsection I.A, which sets forth the
"maximum" permissible noise levels. Moreover, subsection I.C,
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t e X2:2o2r34.1
Mr. Wayne Loftus
April 3, 1998
Page 3
which applies to any location in the City, conflicts with
subsection I.G.2, which applies within a dwelling unit.V
Subsection I.0 is vulnerable to attack as being arbitrary and
capricious, because of the lack of specification as to where on the
property the measurement to be made.
Subsection I.E seems nonsensical -- measuring the ambient noise
level from a distance determined by the ambient noise level.
Subsection II conflicts with subsections I.C. and I.G.2., both of
which make it illegal for any person to violate the stated noise
limits.
With reference to subsection III, I question its rationale. The
City is binding itself to investigate any and all complaints, no
matter how frivolous. Moreover, by including in an ordinance the
provisions contained in subsection III.F., the City is handing
defendants a ready made defense.
Sec. 17.53.080 Prohibited Acts
With reference to subsection A.2, Table I does not set forth noise
levels for "public space ".
With reference to subsection A.7, the use of domestic power tools
is not specified in this section.
Subsection 8 is in conflict with subsection 7. In addition, there
is no Table 5 or 6. Finally, since the tables do not specify where
the noise is to be measured from, they are likely to be held to be
unenforceable.
With reference to Tables 3 and 4, the City does not have a "semi -
residential" land use designation. Also with reference to those
tables, left unaddressed are the standards for "long- term"
operation of mobile equipment and "short- term" operation of
stationary equipment.
The text under "Mobile equipment" and "Stationary Equipment"
contradicts Tables 3 and 4, respectively.
Y All references to subsections are to the subsections as they
appear in your draft of the ordinance.
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IAx2:202734.1
Mr. Wayne Loftus
April 3, 1998
Page 4
With reference to subsection 10.a, the reference to "this Section"
is nonsensical, since no other provision of the section addresses
"powered model vehicles ".
With reference to subsection 10.b, Table 1 does not set forth noise
levels for "public space ".
Subsection 15 does not address where the "sign" to be located.
Sec. 17.53.090 Motor Vehicle Noise Limits
Subsection A is gratuitous; since the City is preempted by the
Vehicle Code, the subsection serves no purpose other than to
clutter the Municipal Code. If the entire subsection is not
deleted, then at least the last sentence would be. Defense counsel
may try to use its provisions to override the City's immunity from
liability for failure to enforce laws.
Subsection B conflicts with Municipal Code section 8.36.100,
subsections A and B, and section 8.36.110, subsection F. If the
City elects to modify its existing refuse collection vehicle noise
limits, those modification need to made by an amendment to sections
8.36.100 and 8.36.110, not by the imposition of conflicting
regulations in section 17.53.090.
Subsection C is preempted by Vehicle Code section 27001. (55 Ops.
Cal. Atty. Gen. 178, 179 fn. 3.)
With reference to Subsection D, vehicles such as "motorcycles" and
"snowmobiles" would not be deemed recreational vehicles pursuant to
their Vehicle Code definitions and so there inclusion in Subsection
D does not lend meaning to the undefined term "motorized
recreational vehicle ". As a result, I recommend that you make the
list as comprehensive as possible, in order to minimize the need to
convince a court that the particular vehicle in question is covered
by the provisions of this subsection. As an alternative, you could
develop your own comprehensive definition.
With reference to subsection E.1, its provisions should be moved to
subsection A of Section 17.53.080 and revised to conform to the
formate of that subsection.
Subsection E.2 is gratuitous; since the City is preempted by
federal laws and regulations, the subsection serves no purpose
other than to clutter the Municipal Code.
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Mr. Wayne Loftus
April 3, 1998
Page 5
With reference to Subsection F, the ability of the City to regulate
vehicles standing (or stationary) on public rights -of -way is
governed by Vehicle Code sections 25007 and 25007.5. Subsection F
does not comport with section 25007.5; it is not limited to
"commercial" vehicles "of 10,000 pounds or more" "in" a residential
"district" and does not exempt "pickups" and deliveries ".
Subsection F does comport with section 25007, but under that
section the provisions of Subsection F can only be enforced if
signs giving "adequate" notice of the prohibition are posted.
Finally, all provisions regulating the standing of motor vehicles
belong in Article III of Chapter 10.04 of the Municipal Code.
Sea. 17.53.100 Esomptions
With reference to subsection B, if the intent is that all of the
activities listed under section 17.53.080, other than those listed
here, are subject to the provisions of section 17.53.070, that
intent is in conflict with section 17.53.080. (Compare, for
example, subsection A.1 to subsection 4.)
Sea. 17.53.110 Enforcement
Subsection A is nonsensical. Prima facia evidence is a fact (or
group of facts) that is evidence of another fact.
Subsection B is nonsensical. Infractions are not punishable by
$1000 fines or imprisonment. The subsection is also in conflict
with section 1.12.010 of the Municipal Code. If you want to
designate violations of chapter 17.53 as infractions, I refer you
to section 10.04.340 of the Municipal Code for the proper format,
with the exception that "article" would read "chapter ".
With reference to subsection C, I question the rationale for the
section; under the City's code enforcement practices a notice of
violation serves as an order requiring abatement.
Subsection D is superfluous; it is also nonsensical. A summons can
only be issued by a court, while an indictment can only be issued
by a grant jury. A complaint is not "issued "; it is "filed" and
the filing can only be done by a person admitted to practice law in
California.
Subsection E is superfluous and the first sentence conflicts with
subsection B of section 1.12.070 of the Municipal Code.
0001'A
Mr. Wayne Loftus
April 3, 1998
Page 6
If you have any questions regarding my comments, please
do not hesitate to contact me.
Very trul yours,
C C RYL J. A
CI TORNEY, MOORPARK; and
BURKE, WILLIAMS & SORENSEN, LLP
Enclosure
cc: Steven Kueny, City Manager (w /out encl.)
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