Agenda Report
Fullerton City Council
MEETING DATE: DECEMBER 19, 2023
TO: CITY COUNCIL / SUCCESSOR AGENCY
SUBMITTED BY: SUNAYANA THOMAS, DIRECTOR OF COMMUNITY AND ECONOMIC DEVELOPMENT PREPARED BY: CHRIS SCHAEFER, AICP, PLANNING MANAGER
EDGARDO CALDERA, SENIOR PLANNER
SUBJECT: NOISE REGULATIONS AND STANDARDS MUNICIPAL CODE AMENDMENTS
SUMMARY
Amendments to Fullerton Municipal Code (FMC) Chapter 15.90 (Noise Standards and Regulation) and Chapter 3.08 (Entertainment) pertaining to noise standards and regulations.
RECOMMENDATION
Find project exempt from California Environmental Quality Act (CEQA) review pursuant to CEQA Guidelines Section 15061(B)(3).
Introduce Ordinance No. XXXX for first reading 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, AMENDING FULLERTON MUNICIPAL CODE TITLES 3 AND 15 pERtainING to noise standards for properties zoned C-3 (Central business district, commercial) and G-C (General Commercial) and other related noise provisions within the code
CITY MANAGER REMARKS
This would be the first reading of the Ordinance. This Ordinance has focus on commercial generated noise. It attempts to create an enforceable code for decibels and does include a provision on noise in commercial areas regarding noise in the early morning.
PRIORITY POLICY STATEMENT
This item matches the following Priority Policy Statements:
Fiscal and Organizational Stability
Public Safety.
FISCAL IMPACT
None.
DISCUSSION
The current version of the City’s Noise Ordinance imposes exterior noise level limits that are incompatible with businesses operating with entertainment and are exceeded by current background sound levels in the Downtown and commercial zones Citywide. As a result, the current maximum allowable sound levels are essentially unenforceable based on standard operation and current background levels. The Fullerton Plan (General Plan) identified this discrepancy in 2012 and included a short-term action item within the implementation section of the Fullerton General Plan to resolve this issue. The following amendments are being proposed to provide an enforceable balance between the needs of the businesses and quality of life for residents.
Background
Both the Planning Commission and City Council have considered amendments to the City’s noise standards on multiple occasions since 2014 to enhance enforcement and operational standards and processes for indoor and outdoor commercial noise regulations. 2009
In 2009, Roscoe’s Famous Deli requested a permit to offer outdoor entertainment within their rear patio area. As part of that request, the City hired BonTerra Consulting to provide an acoustical evaluation of the Downtown noise environment. The result of the 2009 noise analysis was that the Planning Commission and City Council voted to retain the existing noise standards and took no action on the request from Roscoe’s. 2014
On March 26, 2014, the Planning Commission held a Public Hearing to consider a Conditional Use Permit (CUP) request for a waiver of FMC Section 15.30.040.I.c.ii to allow amplified music within an outdoor patio of an existing restaurant on West Wilshire Avenue. Without deciding on the CUP request, the Planning 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 10:00 p.m., well below the level that would result from any type of outdoor entertainment. The City Council recommendation to Staff at that time was to propose an alternative approach to regulate outdoor entertainment/noise in the Downtown by hiring an acoustical consultant to take initial sound measurements and make recommendations based on other cities which allow outdoor entertainment.
At the City Council meeting on August 19, 2014, Matthew Jones, an acoustical engineer from Landrum & Brown presented an in-depth review of the principles of sound generation, sound measurement and perception 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 measurements taken at that time. Following the presentation and public testimony, 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 amendments to the FMC pertaining to noise regulation and a draft Ordinance which attempted to reflect the previous direction received from the City Council in August. Following a presentation by Staff and public comment, the City Council voted (3-2, No: Whittaker, Sebourn) to approve the Resolution of Intention, with direction to the Planning Commission that the City Council was not in favor of allowing outdoor amplified music.
At its meeting on December 4, 2014, the Planning Commission continued the CUP request from the business owner on West Wilshire Avenue to a date uncertain and took no further action on this amendment. The applicant on Wilshire Avenue ultimately withdrew the request for a CUP to allow outdoor entertainment and no further actions were taken by City Staff on this issue. 2018-2019
On November 28, 2018, the Planning Commission held a Public Hearing to consider amendments to the FMC pertaining to the regulation of businesses serving alcohol and offering entertainment. These amendments, collectively referred to as part of the Downtown Game Plan, was an effort to revise several chapters of the FMC to update standards, processes, conditions of approval and operational standards pertaining to businesses which serve alcohol and/or offer entertainment which had not been comprehensively amended since 2009. Following a presentation by Staff, testimony from the public and questions from the Commission, the Planning Commission voted to continue their determination on this item for three months. This time allowed Staff to continue to refine the proposed regulations and conduct additional outreach.
On February 27, 2019, the Planning Commission revised the proposed Code amendments and recommended approval of the amendments to Titles 3 and 15 pertaining to regulation of alcohol establishments and entertainment but did not recommend moving forward the amendments to Chapter 15.90 (Noise Standards and Regulations). The public notice that was released for these amendments did not specifically reference amendments to Chapter 15.90, and out of an abundance of caution, no action was taken on that aspect.
In April 2019 the City Council approved amendments to Titles 15 and 3 of the FMC as it relates to businesses selling alcohol and entertainment permits, except Chapter 15.90. A new Downtown Code Enforcement Officer was also approved and increased coordination with the Police Department to enforce and streamline entertainment permit processes. 2020 Noise Ordinance Recommendation
At its meeting on September 30, 2020, the Planning Commission held a Public Hearing to consider proposed amendments to Chapter 15.90 regarding noise regulations. Following a presentation by City Staff and public comments, 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 meeting on October 28, 2020, the Planning Commission recommended that the City Council approve the Ordinance Amendment (3-2; No: Carvalho and Cox) with amendments which were incorporated into the proposed Ordinance that went to the City Council for consideration on November 17, 2020; however, during the November 17, 2020, City Council meeting, the item was tabled, and no further action was taken.
Downtown Code Enforcement
It is also important to note that in May 2019 a dedicated Code Enforcement Officer was assigned to the Downtown District to enforce regulations relating to entitlements for Downtown establishments to ensure all businesses were operating in compliance with all City codes and standards. At the time, multiple businesses were operating out of compliance which included producing excessive noise through indoor and unpermitted outdoor entertainment which led to Code Enforcement and Police Department complaints. The initiation of the Downtown dedicated Code Enforcement Officer along with increased coordination with the Police Department has provided effective enforcement and significantly reduced the number of complaints and businesses operating out of compliance Downtown. Despite this, the inherent conflict between the maximum noise levels, noise from standard business operations and maintaining quality of life for residents is still unresolved. 2023
City Council Direction
At the end of 2022, City Council requested Staff bring back the Noise Ordinance discussions for consideration. On March 21, 2023, Staff brought the item back to the City Council as a Study Session to consider amending FMC Chapter 15.90 (Noise Standards and Regulations) and Chapter 3.08 (Entertainment). Staff requested policy direction from the City Council regarding noise standards and regulations. This included whether the Noise Ordinance amendments should include Downtown only or Citywide, whether the City Council would entertain outdoor entertainment and during what hours. Following a Staff presentation and public comment, the City Council directed Staff to explore a Citywide Noise Ordinance for Downtown and all commercial corridors in the City and that the revised Noise Ordinance should include allowing limited outdoor entertainment.
Community Outreach
Two Community Meetings were held in spring 2023 to give residents, business owners and stakeholders an opportunity to discuss what important items should be incorporated into the Noise Ordinance. An in-person meeting was held at the Fullerton Community Center on June 14, 2023, and a virtual/call-in meeting on June 15, 2023. As part of the Community Meetings, attendees filled out a survey which was also posted on social media to better understand the priorities of residents and businesses and gauge public support as it relates to amending the Noise Ordinance.
Through the community outreach process, it was found that there is strong support from businesses and residents to update commercial noise standards. It was also found that there was strong support to include standards in the Ordinance that would allow limited outdoor entertainment.
Staff has taken public and business owner comments into consideration including, but not limited to, outdoor entertainment hours of operation, preserving quality of life for residents, enforceable standards for enforcement and loading and unloading hours surrounding residential properties.
Proposed Amendments and Regulations
The proposed amendments are the culmination of data gathering, consultation with acoustical professionals, review of noise related complaints and outreach to the public including business owners and residents Citywide.
The proposed amendments to Chapter 15.90 include, but are not limited to, changes to the definitions, standards, exemptions, and enforcement. Amendments also include provisions for garbage collection hours and delivery hours in commercial zones. The changes would apply to the Central Business District Commercial (C-3) zone and General Commercial (G-C) zone. The proposed regulations recognize the mix of residential and highly concentrated business in the C-3 zone and the inherently higher background noise levels in commercial zones.
The City hired an acoustical engineering consultant, Dudek, to conduct a Citywide noise study and noise monitoring program that included on-site monitoring at various commercial locations Citywide. The study found that the current version of the City’s Noise Ordinance imposes unenforceable and incompatible restrictions with exterior noise level limits of 55 dBA between 7:00 a.m. and 10:00 p.m. and 50 dBA between 10:00 p.m. and 7:00 a.m. The study also found the average hourly background levels (Leq) measured in and around the C-3 and G-C zones were 65 dBA during the peak entertainment hours of 5:00 p.m. to midnight, while the average hourly L25 value period was 64 dBA and the average hourly L5 value was 67 dBA during the same time period. This essentially served as the premise for applying the new standards to the C-3 and G-C zones (Attachment 3, Table 3).
As outlined in Table 1 below, the decibel levels are 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 (7:00 a.m. to 5:00 p.m.), and then increases the level of permitted sound from 5:00 p.m. to 12:00 a.m. to accommodate the Downtown nightlife (restaurants/bars) that have music and other entertainment. The permitted noise levels are then reduced starting at 12:00 a.m. to 1:30 a.m. as nighttime businesses begin to close. The lowered limits between 12:00 a.m. and 1:30 a.m. are also due to heightened sensitivities at residential properties at those times. The level between 1:30 a.m. to 7:00 a.m. is greatly reduced recognizing the ambient sound levels during these hours are typically very low which increases the distance and negative impacts that increased sound levels would generate.
Table 1 – Commercial Zone Time/Decibel Restrictions
Hours
(Monday – Sunday)
Lmax
7:00 a.m. - 5:00 p.m.
65 dBA
5:00 p.m. - 12:00 a.m.*
75 dBA
12:00 a.m. – 1:30 a.m.
65 dBA
1:30 a.m. - 7:00 a.m.**
55 dBA
*A limit of 75 dBA 50 feet from the property line of a commercial property. **Or ambient noise level, whichever is less.
Enforcement Based Regulations
Recognizing that the main key to an effective Noise Ordinance is the ease of enforcement, the proposed regulations were formulated to be objective and easily enforceable. The noise restrictions would be based on maximum instantaneous (Lmax) levels, which represents the maximum sound level that can be permitted. Using Lmax levels as opposed to various intervals of Leq levels is less cumbersome and prevents user error and misinterpretation of sound level meter results. Using Lmax levels would allow an enforcement officer to determine whether or not the stipulations in the Ordinance are being violated with simple noise detecting equipment.
Second, the new Lmax standard would be measured 50 feet from the property line of the establishment, which is generating the sound, not at the sound source (e.g., the speaker). The distance of 50 feet is the typical width of a street and generally where the closest residences are from establishments with outdoor entertainment. As an alternative for enforcement officials, this translates to a limit of 80 dBA at the property line of the business where the source of interest is located or at a distance of 25 feet from the source of interest, whichever is greater.
Outdoor Entertainment
The recommendation provided is also based on measured sound levels with live outdoor bands and considering that the current conditions have generated minimal complaints from residents. The proposed amendments to 15.90 and 3.08 would permit Entertainment (Outdoor) in the C-3 and G-C zones between the hours of 5:00 p.m. and 10:00 p.m. Monday through Sunday, subject to the approval of a CUP. Entertainment (Outdoor) is any “entertainment” which occurs outside of a fully enclosed building. This could include live musical performances, disc jockey or any other amplified or reproduced music which is played at a volume above what is defined as Ambient Noise. Should a business wish to host an event that includes outdoor entertainment that will exceed the sound level and time restrictions in Chapter 15.90, the business would be required to obtain a Special Event Permit. Special Event Permits typically correspond with holidays and would not occur on a regular basis.
The provisions of the proposed Code amendments, if adopted, will be applicable to all businesses with an existing Entertainment Permit from the effective date of the proposed Ordinance. Businesses with existing Entertainment Permits within the C-3 and G-C zones that were specifically prohibited from having outdoor entertainment may petition to have that condition removed by the Police Department after revisions to their conditions of approval in their CUP is approved by the Planning Commission.
Properties Outside of the C-3 and G-C Zones
All properties located outside of the C-3 and G-C zones 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.
Enforcement Equipment
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 C-3 and G-C Zones.
Fullerton Transportation Center
It is also important to note that the Fullerton Transportation Center Specific Plan (FTCSP) contains noise standards which are separate from the standards contained in Chapter 15.90 of the FMC. 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 standards 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.
The amendments, however, are generally in line with the existing Exterior Noise Levels in the FTCSP which creates consistency throughout the Downtown area for predictability and enforcement. These amendments would address a long-standing disconnect between the typical operating noise levels at restaurants/bars and the City’s adopted Noise Ordinance.
Planning Commission Actions
At its meeting on November 22, 2023, the Planning Commission held a public hearing on the proposed amendments to Chapter 15.90 and 3.08 regarding noise standards. Following a presentation by City Staff, a presentation by the project acoustical consultant and public comment, the Planning Commission had questions for Staff and the consultant. After deliberation, the Planning Commission unanimously recommended that City Council approve the Ordinance Amendment (4-0-1, Tutor absent) with the following amendment which has been incorporated into the proposed Ordinance (Attachment 1):
To provide better clarity, reformat the ordinance to put permitted deviations from the noise standards under noise standards for residential zones (Section 15.90.030.A) since the deviations only apply to residential zones.
Attachments:
Attachment 1 – Draft Ordinance No. XXXX
Attachment 2 – Draft Redline Ordinance No. XXXX
Attachment 3 – Planning Commission Staff Report dated November 22, 2023 Attachment 4 – Dudek Noise Evaluation Memorandum dated November 2, 2023 cc: City Manager Eric J. Levitt
Titles 3 and 15 Amendments – Noise Regulations and Standards December 19, 2023 - Page 7