Agenda Report
Fullerton City Council
MEETING DATE: FEBRUARY 6, 2024
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 (Continued from December 19, 2023 Meeting)
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
Since the item has been continued, the staff has received input from the public and in the supplemental report has included some of the suggestions into the proposed Ordinance.
In addition, there have been comments that have come forward that would impact areas outside of the proposed ordinance. If the City Council approves this Ordinance or approves with amendments, the staff could upon direction take additional amendments to the Planning Commission for consideration.
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 Noise Ordinance imposes exterior noise level limits incompatible with businesses operating with entertainment and exceeded by current background sound levels in the Downtown and commercial zones Citywide. This results in unenforceable current maximum allowable sound levels 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 Plan to resolve this issue. Staff proposes amendments to provide an enforceable balance between business needs and quality of life for residents.
Background
Both the Planning Commission and City Council have considered amendments to City noise standards on multiple occasions since 2014 to enhance enforcement and operational standards and processes for indoor and outdoor commercial noise regulations. 2009
Roscoe’s Famous Deli requested a permit in 2009 to offer outdoor entertainment within their rear patio area. The City hired BonTerra Consulting to provide an acoustical evaluation of the Downtown noise environment. The Planning Commission and City Council voted to retain the existing noise standards and took no action on the request from Roscoe’s as a result of the 2009 noise analysis. 2014
The Planning Commission held a Public Hearing on March 26, 2014 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. The Planning Commission requested policy direction from City Council regarding outdoor entertainment within the Downtown without acting on the CUP request.
The Municipal Code at that time allowed a business to apply for a CUP for outdoor entertainment but had no specific standards or criteria by which to analyze these requests beyond the noise level restrictions 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. City Council directed staff to propose an alternative approach to regulate outdoor entertainment andnoise in the Downtown by hiring an acoustical consultant to take initial sound measurements and make recommendations based on other cities which allow outdoor entertainment.
Matthew Jones, an acoustical engineer from Landrum & Brown, presented an in-depth review of sound generation principles, sound measurement and perception of sound to the City Council on August 19, 2014. Several recommendations accompanied the presentation 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. City Council provided consensus to keep the existing Ordinance in place and directed staff to provide options for more effective enforcement at the September 16, 2014 meeting.
Staff presented a resolution of intention (Resolution No. 2014-58) to City Council on September 16, 2014 to consider FMC amendments pertaining to noise regulation along with a draft ordinance which attempted to reflect the previous City Council direction received in August. City Council voted (3 - 2, No: Whittaker, Sebourn) to approve the resolution of intention with direction to the Planning Commission that City Council did not favor allowing outdoor amplified music.
The Planning Commission continued the CUP request from the business owner on West Wilshire Avenue December 4, 2014 to a date uncertain and took no further action on this amendment. The applicant on Wilshire Avenue withdrew the request for a CUP to allow outdoor entertainment and staff took no further action on this issue. 2018-2019
The Planning Commission held a Public Hearing on November 28, 2018 to consider FMC amendments to regulate businesses serving alcohol and offering entertainment. These amendments, collectively referred to as part of the Downtown Game Plan, attempted to revise several FMC chapters not amended since 2009 and update standards, processes, conditions of approval and operational standards for businesses serving alcohol and/or offering entertainment. The Planning Commission voted to continue their determination on this item for three months, allowing time for staff to continue to refine the proposed regulations and conduct additional outreach.
The Planning Commission revised the proposed code amendments on February 27, 2019 and recommended approval of the Title 3 and 15 amendments pertaining to regulation of alcohol establishments and entertainment but did not recommend Chapter 15.90 (Noise Standards and Regulations) amendments. The public notice released for these amendments did not specifically reference amendments to Chapter 15.90, and out of an abundance of caution, the Commission took no action on that aspect.
City Council approved FMC Title 15 and 3 amendments related to businesses selling alcohol and entertainment permits, except Chapter 15.90, in April 2019. City Council also approved a new Downtown Code Enforcement Officer and increased coordination with the Police Department to enforce and streamline entertainment permit processes. 2020 Noise Ordinance Recommendation
The Planning Commission held a Public Hearing on September 30, 2020 to consider Chapter 15.90 amendments regarding noise regulations. The Planning Commission voted to continue action on this item to the October 28, 2020 meeting to allow Commissioners time to experience current noise levels generated Downtown on nights and weekends and better inform their recommendation on the amendment.
The Planning Commission recommended City Council approve the ordinance amendment (3 – 2, No: Carvalho and Cox) with amendments on October 28, 2020. City Council considered the amended ordinance November 17, 2020, tabled the item and took no further action.
Downtown Code Enforcement
The City assigned a dedicated Code Enforcement Officer to the Downtown District to enforce regulations relating to entitlements for Downtown establishments to ensure all businesses operated in compliance with all City codes and standards. The Officer found multiple businesses operating out of compliance, including excessive noise through indoor and unpermitted outdoor entertainment leading to Code Enforcement and Police Department complaints. The Downtown Code Enforcement Officer, along with increased coordination with the Police Department, 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 remains unresolved. 2023
City Council Direction
City Council requested staff bring back the Noise Ordinance for consideration at the end of 2022. Staff presented the item to City Council on March 21, 2023 to consider amending FMC Chapter 15.90 (Noise Standards and Regulations) and Chapter 3.08 (Entertainment). Staff requested policy direction from City Council regarding noise standards and regulations, including whether amendments should include Downtown only or Citywide, whether City Council would entertain outdoor entertainment and during what hours. City Council directed staff to explore a Citywide Noise Ordinance for Downtown and all commercial corridors in the City and include allowing limited outdoor entertainment in the revised Noise Ordinance.
Community Outreach
The City held an in-person meeting at the Fullerton Community Center on June 14, 2023 and a virtual call-in meeting on June 15, 2023 to give residents, business owners and stakeholders an opportunity to discuss what items to incorporate in the Noise Ordinance. Attendees completed a survey (also posted on social media) to help staff better understand resident and business priorities and gauge public support for amending the Noise Ordinance.
The community outreach process indicated strong support from businesses and residents to update commercial noise standards and strong support to include standards in the ordinance to 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 culminate from data gathering, acoustical professional consultation, noise-related complaint review and public outreach.
The proposed Chapter 15.90 amendments include, but are not limited to, changes to 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 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) in and around the C-3 and G-C zones measured 65 dBA during the peak entertainment hours of 5:00 p.m. to midnight, while the average hourly L25 value period measured 64 dBA with the average hourly L5 value measuring 67 dBA during the same time period. This provided the premise for the new standards to the C-3 and G-C zones (Attachment 3, Table 3).
Table 1 outlines the decibel levels 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 and bars) that have music and other entertainment. The permitted noise levels then reduce 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. also accommodates heightened sensitivities at residential properties at those times. The level greatly reduces between 1:30 a.m. to 7:00 a.m., recognizing typically very low ambient sound levels during these hours, 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
Staff formulated the proposed regulations for objectivity and easy enforcement, recognizing the key to an effective Noise Ordinance is the ease of enforcement. The ordinance would base noise restrictions on maximum instantaneous (Lmax) levels, which represents the maximum sound level that the City can permit. 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 ordinance violations with simple noise-detecting equipment.
Second, staff would measure the new Lmax standard 50 feet from the property line of the establishment generating the sound, not at the sound source (e.g., the speaker). The typical width of a street is 50 feet and generally where the closest residences exist from establishments with outdoor entertainment. This translates to an 80 dBA limit 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, ss an alternative for enforcement officials.
Outdoor Entertainment
The recommendation provided considers measured sound levels with live outdoor bands and the conditions that 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 played at a volume above the definition of Ambient Noise. A business wishing to host an event that includes outdoor entertainment that will exceed the sound level and time restrictions in Chapter 15.90 would need 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, would apply 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 specifically prohibited from having outdoor entertainment may petition to have that condition removed by the Police Department after the Planning Commission approves revisions to their conditions of approval.
Properties Outside of the C-3 and G-C Zones
All properties located outside of the C-3 and G-C zones remain subject to the noise level standards contained in FMC Chapter 15.90. This includes the noise level standards, measurement time periods and methodology by which the City measures noise levels.
Enforcement Equipment
Other proposed amendments to Chapter 15.90 clarify the type of noise-detecting equipment that the City can use to determine compliance with the noise standards to account for improved commercially available noise-detecting technology. 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
The Fullerton Transportation Center Specific Plan (FTCSP) contains noise standards separate from FMC Chapter 15.90 of standards. Any amendments to Chapter 15.90 would not apply to properties within the FTCSP area, which would remain subject to the noise standards contained in that document. An amendment to the noise standards within the FTCSP would require a Specific Plan amendment with separate Planning Commission and City Council action and require CEQA analysis pertaining to a Specific Plan Amendment.
The amendments, however, remain 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 and bars and the City’s adopted Noise Ordinance.
Planning Commission Actions
The Planning Commission held a public hearing November 22, 2023 to discuss the proposed Chapter 15.90 and 3.08 amendments regarding noise standards. The Planning Commission unanimously recommended that City Council approve the Ordinance Amendment (4 – 0 - 1, Absent: Tutor) with the following amendment, which staff has 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 – PowerPoint Presentation
Attachment 2 – City Council Draft Ordinance No. XXXX
Attachment 3 – City Council Draft Redline Ordinance No. XXXX Attachment 4 – Planning Commission Staff Report dated November 22, 2023 Attachment 5 – Dudek Noise Evaluation Memorandum dated November 2, 2023 cc: City Manager Eric J. Levitt
Noise Regulations and Standards
February 6, 2024 - Page 7