Agenda Report
Fullerton City Council
MEETING DATE: NOVEMBER 17, 2020
TO: CITY COUNCIL / SUCCESSOR AGENCY
SUBMITTED BY: KENNETH A. DOMER, CITY MANAGER
PREPARED BY: MATT FOULKES, COMMUNITY AND ECONOMIC
DEVELOPMENT DIRECTOR
SUBJECT: FULLERTON MUNICIPAL CODE AMENDMENTS TO TITLES 3 AND 15, CHAPTERS 3.08 AND CHAPTER 15.90 PERTAINING
TO NOISE REGULATIONS AND STANDARDS
SUMMARY
Proposed amendments to Chapter 15.90 (Noise Standards and Regulation) and Chapter
3.08 (Entertainment) of the Fullerton Municipal Code (FMC) to create a Downtown Noise Zone and update other regulations pertaining to noise measuring devices contained in Chapter 15.90.
RECOMMENDATION
1. Make finding that project is exempt from CEQA review pursuant to CEQA Guidelines Section 15061(B)(3).
2. Introduce Ordinance No. XXXX for first read ing by title only and waive further reading of the Ordinance.
ORDINANCE NO. XXXX – AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF FULLERTON, CALIFORNIA, AME NDING TITLES 3 AND 15 OF THE
FULLERTON MUNICIPAL CODE UPDATI NG NOISE STANDARDS TO CREATE A
DOWNTOWN NOISE ZONE AND UPDATE OTHER REGULATIONS PERTAINING
TO SOUND MEASUREMENT DEVICES
PRIORITY POLICY STATEMENT
This item matches the following Priority Policy Statements:
Fiscal and Organizational Stability
Public Safety.
Titles 3 and 15 Amendments – Noise Regulations and Standards November 17, 2020 - Page 2
FISCAL IMPACT
None.
DISCUSSION
The City Council adopted Resolution No. 2018-31 on June 5, 2018 stating its intention to consider amendments to the Fullerton Municipal Code (FMC) updating development and operational standards, processe s and enforcement tools for businesses selling alcohol for on-site consumption and offering entertain ment. At its meeting on April 16, 2019 the City Council approved amendments to Titles 15 and 3 of the FMC as it relates to alcohol selling businesses and entertainment permits. However, a separate Resolution amending Chapter 15.90 (Noise Standards ) was not included in this action. The City Council had previously approved a Resolution of Intention to amend the Municipal Code pertaining to noise in 2014 (Resolution No. 2014-58).
Both the Planning Commission and City Counc il have considered amendments to the City’s noise standards on multiple occasions, specific to requests for outdoor entertainment in the Downtown. On Ma rch 26, 2014 the Planning Commission held a public hearing to consider a Conditional Use Permit (CUP) request for a waiver of Fullerton Municipal Code (FMC) Section 15.30.040.I.c.ii to a llow amplified music within an outdoor patio of an existing restaurant on West Wilshire Avenue. Without making a determination on the CUP request, the Pl anning Commission requested policy direction from the City Council regarding outdoor entertainment within the Downtown. At that time, the Municipal Code allowed a business to apply for a CUP to have outdoor entertainment, but there were no specific standards or criteria by which to analyze these requests beyond the noise level restrictions that were contained in Chapter 15.90 which limits noise levels to a maximum of 50 decibels after 10:00pm, well below the level that would result from any type of outdoor entertainm ent. The staff recommendation at that time was for the development of an alternative approach to regulating outdoor entertainment/noise in the Downtown and for the hiring of an acoustical consultant to take initial sound measurements and make recommendations based on other cities wh ich allow outdoor entertainment.
At the City Council meeting on August 19, 2014, Matthew Jones, an acoustical engineer from Landrum & Brown presen ted an in-depth review of the principles of sound generation, sound measurement and percept ion of sound to the City Council.
Accompanying the presentation were several recommendations as to how the City could amend the FMC to better regulate noise within the Downtown based on regulations used by other cities and sound level measurem ents taken at that time. Following the presentation and public testim ony, the City Council provided consensus to keep the existing ordinance in place and directed staff to provide options for more effective enforcement at the meeting on September 16, 2014.
On September 16, 2014, City staff provided the City Council with a Resolution of Intention (Resolution No. 2014-58) to consider am endments to the FMC pertaining to noise regulation and a draft ordinance which attempt ed to reflect the direction from the City Council from the August 19, 2014 meeting. Fo llowing a presentation by staff and public Titles 3 and 15 Amendments – Noise Regulations and Standards November 17, 2020 - Page 3
comment, the City Council voted (3-2; Whittaker, Sebourn; no) to approve the resolution of intention, with some direction to t he Planning Commission that the City Council was not in favor of allowing outdoor amplified music.
In the early stages of t he COVID-19 pandemic, the City Council authorized the City Manager to temporarily allow for outdoor dining and outdoor retail to comply with the Governor’s orders restricting indoor o ccupancy for restaurants, bars and retail.
Subsequent to this action, the City’s Community and Economic Development and Public Works Departments in consultation with the Police and Fire Departments developed an application and procedure to allow businesses to utilize outdoor spaces (public and private) for outdoor dining and outdoor retail uses. This program was initially set to expire on November 2, 2020, but is proposed to be extended through April 2021. The outdoor dining/outdoor retail program has been a success, not only allowing businesses to retain large portions of their indoor occupancy in an outdoor setting, but has also proved that many of the outdoor spaces that had previously been dedica ted to parking, alleys and walkways could be repurposed for outdoor gathering spaces with minimal impact on parking demand. One unintend ed consequence of this ac tion has been that as businesses have moved their activities outside, there has been a corresponding desire to provide music in these outdoor areas similar to what was provided indoors. Ambient music is permitted in outdoor patios, however, the noise generated by these businesses typically exceeds the ambient noise definition threshold and results in a conflict with the City’s noise regulations. While this increas e in outdoor noise has been a result of increased outdoor activities from the CO VID-19 pandemic, the need to resolve the inherent conflict between the City’s noise regulations and downtown business operations has been an unresolved issue for many years in the Downtown.
Fullerton Transportation Center Specific Plan
The Fullerton Transportation C enter Specific Plan (FTCSP) contains noise standards which are separate from the standards contained in Chapter 15.90 of the FMC. As a result, any amendments to Chapter 15.90 will not be applicable to properties within the FTCSP area, which will continue to be subject to the noise standards contained in that document. An amendment to the noise st andards within the FTCSP will require an amendment to the Specific Plan, which would require a separate action by the Planning Commission and City Council and require CEQA analysis pertaining to a Specific Plan Amendment.
Chapter 15.90 (Noise Standards and Regulation):
Proposed amendments to this c hapter include the creation of a Downtown Noise Zone which acknowledges the unique characteristics of the Down town and creates specific noise standards for all properties within the specified boundary. The permitted sound levels are established based on both a L eq value, which is a so und level measurement over a period of time or average sound level, and a L max value, which represents the maximum sound level that can be permitted. Both the Leq and Lmax are measured at the property line of the establishment which is generating the sound. To capture the average sound level (L eq) at an interval that is most consis tent with the type of nighttime noise generating activities occurri ng (i.e. Music/DJ), the L eq time period for the dB(A) limits established will be at 5-minute intervals. This time period is roughly equal to the length of Titles 3 and 15 Amendments – Noise Regulations and Standards November 17, 2020 - Page 4
a song, and is a reasonable lengt h of time for a Code Office r to take a stationary measurement of sound levels.
The Leq and Lmax values are also specified for hours of the day to preserve and protect daytime office, retail and service businesses from potential negative noise related impacts during the day (7:00am to 7:00pm), and then increases the level of permitted sound after 7:00pm to 12:00am (midnight) to accommodate the downtown nightlife (restaurants/bars) that have music and other entertainment. T he permitted noise levels are then reduced starting at 12:00am to 1:30am as nighttime businesses begin to close down and then there is a much reduced L eq and Lmax value between 1:30am to 7:00am recognizing the ambient sound levels during th ese hours are typically very low which increases the potential for negative impacts from louder than ambient sound levels.
The boundaries of the noise zone were established based on the proximity to the nearest residential development or residentially zoned property taking into account any barriers (i.e. buildings) that would block or deflect sound.
Table 1 - Downtown Noise Zone time/decibel restrictions Hours
(Monday – Sunday)
Average Sound Level
Leq ( over a 5-minute)
Maximum Sound Level
Lmax
7:00am - 7:00pm 65 dB(A) 75 dB(A)
7:00pm - 12:00am 70 dB(A) 80 dB(A)
12:00am – 1:30am 65 dB(A) 75 dB(A)
1:30am - 7:00am* 55 dB(A) 55 dB(A)
* Or ambient noise level, whichever is less
Monitoring Devices
The other proposed amendments to Chapter 15.90 will clarify the type of noise detecting equipment that can be used to determine compliance with the noise standards to account for improved noise detecting technology that is now commercially available. The proposed amendments to noise measurement technology will apply to all properties both inside and outside of the Downtown Noise Zone.
Proposed Amendment to Chapter 3.08
A definition for Entertainment (Outdoor) was created as part of the updates to Titles 3 and 15 approved in 2019. However, the terminology adopted at the time referred to a Downtown Commercial Noise Zone, which is recommended to be revised to remove the word Commercial as it would apply to all properties within the boundary regardless of use.
Properties Outside of the Downtown Noise Zone
All properties located outside of the Downtown Noise Zone will continue to be subject to the current noise level standards contained in Chapter 15.90 of the FMC. This includes the noise level standards, measurement time periods and methodology by which noise levels are measured. For example, the residential development located on the south side of Walnut Avenue, just sout h of the Transportation Center (SOCO Walk) and outside of Titles 3 and 15 Amendments – Noise Regulations and Standards November 17, 2020 - Page 5
the Downtown Noise Zone, will continue to be governed by the City’s current noise standards for residential properties (i.e. noise as measured at the re sidential use). The same is true for the residents of the Wilshi re Apartments located on the north side of Wilshire Avenue and the residents of City Pointe apartments on t he south side of Chapman Avenue.
There are a number of downtow n businesses that currently offer outdoor music which exceeds the maximum allowable sound levels to qualify as ambient music and which also exceed the current maximum sound levels contained in FMC Chapter 15.90. Even some businesses which have speaker systems indoor s, have exceeded ambient noise levels as a result of open windows and doors. Si milar to the previously-approved FMC amendments related to businesses with on-site alcohol sales, the proposed amendments are intended to provide regul ations which balance the needs of the business operators who are permitted to provide entertainment pursuant to their CUP and Entertainment Permit, with a reasonable expectation of noise levels from nearby businesses and residents.
The proposed amendments incorporate seve ral concepts from previous noise recommendations while recognizing the uni que environment of Downtown Fullerton through the creation of a Downtown Noise Z one (Figure 1). Within this predominantly commercial area, increased levels of s ound would be permitted during evening hours 7:00 p.m. to 1:30 a.m. with a reduced sound level permitted between 12:00 a.m. and 1:30 a.m. The proposed amendment aims to address a long-standing disconnect between the typical operating noise levels at downtown restaurants/bars and the City’s adopted noise ordinance. The Fullerton Plan (General Plan) identified this discrepancy in 2012 and included a short-term action item within the implementation section of the Fullerton Plan to resolve this issue. Importantly, outsi de of the Downtown Noise Zone, outdoor music/entertainment, excluding ambient music, would continue to be prohibited. It is also important to note that businesses which are within the Downtown Noise Zone but are on the edge of the boundary may need to modify their sound levels below what is permitted in the zone in order to comply with the noi se standards applicable to properties outside of the noise zone.
Entertainment (Outdoor) which could include live musical performances, disc jockey or any other amplified or reproduced music whic h is played at a volume above what is defined as ambient would be per mitted, subject to the proposed sound level restrictions contained in Chapter 15.90. Sh ould a business wish to host an event which will include outdoor entertainment that will exceed the sound level restrictions in Chapter 15.90, they will be required to obtain a Special Event Permit, subject to FMC Chapter 15.58 to allow for additional review by City staff to ensure that appropriate meas ures are taken to minimize negative impacts that may be associated with the event on surrounding properties. These special events often correspond to a holiday or other special event, and would not occur on a regular or recurring basis.
Titles 3 and 15 Amendments – Noise Regulations and Standards November 17, 2020 - Page 6
Figure 1 - Downtown Noise Zone Boundary
The provisions of the propos ed code amendments will be appl icable to all businesses with an existing Entertainment Permit fr om the effective dat e of the proposed ordinance. Businesses with existing Entertai nment Permits within the Downtown Noise Zone that were specifically prohibited from having outdoor entertainment may petition to have that condition removed by the Police Department, or may request to have their conditions revised at the next annual renewal of the permit.
Planning Commission Actions
At its meeting on September 30, 2020 the Planning Commission held a public hearing on the proposed amendments to C hapter 15.90 regarding noise. Following a presentation by City staff, public comment (e-comment s and e-mail correspon dence), the Planning Commission voted to continue action on this item to the October 28, 2020 meeting. The recommendation to continue the item was to allow commissioners time to experience the current noise levels being generated downtown on nights and weekends to better inform their recommendation on the amendment. At its meeti ng on October 28, 2020 the Planning Commission recommended that that City Council approve the Ordinance Amendment (3-2; Carvalho, Cox opposed) with the foll owing amendments which have been incorporated into the proposed Ordinance (Attachment 2):
1. Remove Tier 1 noise boundary to cr eate a single Downtown Noise Zone.
2. Remove Tier 1 noise level standards so all properties within the Downtown Noise Zone are subject to the same noise standards.
3. Amended the noise standard hours to be fr om 7:00 p.m. to 12:00 a.m. and reduce the allowed noise limits 12:00 a.m. to 1:30 a.m. to be consistent with the daytime noise standards.
4. Replace the word “attacking” with “opposing” in Section 15.90.080.A.
Titles 3 and 15 Amendments – Noise Regulations and Standards November 17, 2020 - Page 7
Attachments:
Attachment 1 – PowerPoint Presentation
Attachment 2 – Ordinance No. XXXX
Attachment 3 – October 28, 2020 Planning Commission Staff Report Attachment 4 – October 28, 2020 Planning Commission Draft Minutes