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HomeMy WebLinkAboutLoud Noise_9642-05 Amend Chapter 13 - Loud NoiseORDINANCE No. Passed by the Common Council of the City of South Bend, Indiana November 28, Attest: Attest: Presented by me to the Mayor of the City ofSouth Bend, Indiana November 29, 20 05 City Clerk President of Common Council Approved and signed by me N a v em b e r 2 9, 20 0~- JOHN 20 05 City Clerk Mayor r SUBSTITUTE BILL 70-05 ORDINANCE NO. ~ l'~ ~~ O ~_ AN ORDINANCE OF THE COMMON COUNCIL OF THE CITY OF SOUTH BEND, INDIANA, AMENDING CHAPTER 13, ARTICLE 4, SECTION 13-57 AND 13-57.05 OF THE SOUTH BEND MUNICIPAL CODE TO CLARIFY PROHIBITED NOISES WITHIN THE CITY OF SOUTH BEND STATEMENT OF PURPOSE AND INTENT The Indiana Court of Appeals recently analyzed the requirements for constitutionality of municipal noise ordinances. (Lutz v. City of Indianapolis, 820 N.E. 2d 766 (Ind. Ct. App. 2005)). The court's discussion in that case suggests that certain portions of Chapter 13, Article 4, Section 13- 57 and Section 13-57.05 of the South Bend Municipal Code should be modified. NOW, THEREFORE, BE IT ORDAINED BY THE COMMON COUNCIL OF THE CITY OF SOUTH BEND, INDIANA that Chapter 13, Article 4, Section 13-57 be amended as follows: Section I. Chapter 13, Article 4, Section 13-57 of the South Bend Municipal Code is amended to read as follows: 13-57 Unreasonable noise a) Prohibited. No person shall make, or cause to be made any unreasonably loud, raucous, prolonged, unnatural or unusual noise in time and place. Noise shall be deemed to be unreasonable when it disturbs, injures, or endangers the peace or quiet or safety, or health of others reasonable persons of ordinary sensitivity within the city, or if such noise causes unreasonable discomfort to any persons within the neighborhood from which such noise emanates or if it detrimentally or adverse affects operators of businesses, customers of businesses or neighborhood residents within the area from which such noise emanates An~such unreasonable noise shall be considered a noise disturbance and public nuisance. b) Factors for determining unreasonable noise. Factors for determining whether a sound is unreasonab~ loud and raucous include, but are not limited to, the following: 1) The proximity of the sound to sleeping facilities, whether residential or commercial; 2) The land use, nature, and zoning of the area from which the sound emanates and the area where it is received or perceived; 3) the time of day or night the sound occurs; 4) the duration of the sound; and 51 Whether the sound is recurrent intermittent, or constant. Illustrative enumeration. The following acts are declared to be i~-a~rearts unreasonable noises in violation of this section, but strci~t this enumeration shall not constitute an exclusive list 1) The sounding of any horn1 or signaling, or other similar device on any automobile, motorcycle, or other vehicle on any street or public place except as a danger warning; the creation by means of any such signaling device of any unreasonably loud and raucous sound; and the sounding of any such device for an unreasonable period of time. The use of any signaling device except one operated byhand or electricity; the use of any horn, whistle or other devise operated by engine exhaust; and the use of any such signaling device when traffic is for any reason held up. More than five (5) consecutive seconds shall be a prima facie unreasonable period of time. 2) Using, operating, or permitting to be played, used or operated any radio, television, boombox, stereo, radio receiving set, musical instrument, or other machine or device fQr-tote that producinges or reproducirrges of sound in sttcli a manner as to unreasonably disturb the peace; and quiet ~~ of the neighboring inhabitants or ~ far-tl~e a~ person who is in the room, vehicle or chamber in which such machine or device is operated and who is not a voluntary listener. or which is ~ , lainly audible at a distance of fifty (50) feet from the building, structure or vehicle in which it is located and unreasonably disturbs the peace and quiet of neighbors in residential or noise sensitive areas, including multi-family or single family dwellings. The operation of such device in a manner prohibited herein between the hours of 11:00 p.m. and 7:00 a.m. shall be prima facie evidence of a violation of this section. 3) Using, operating, or permitting to be played, used or operated, any radio receiving set, musical instrument, phonograph, loudspeaker, sound amplifier, or other machine or device for the producing or reproducing of sound which is cast upon the public street for the purpose of commercial advertising or attracting the attention of the public to any building or structure. 4) Yelling, shouting, hooting, whistling or singing on the public streets, particularly between the hours of 11:00 p.m. and 7:00 a.m. or at any time or place so as to annoy or disturb the quiet, comfort or repose of persons in any office or in any dwelling, hotel or other type of residence or of any person in the vicinity. 5) The keeping of any animal or bird which by causing frequent or long-continued noise shall disturb the comfort or repose of anyperson in the vicinity. 6) The blowing of any locomotive steam whistle or steam whistle attached to any stationary boiler, except to give notice of the time to begin or stop work or as a warning of fire or danger, or upon request of proper City authorities. 7) The discharge into the open air of the exhaust of any steam engine, stationary internal-combustion engine, motorboat or motor vehicle except through a muffler or other device which will effectively prevent Loud or explosive noises therefrom. 8) a. The use of any automobile, motorcycle or other vehicle so out or repair, so loaded or in such a manner as to create loud and unnecessary engine noise, grating, grinding, rattling or other noise in excess of the noise limit measured in decibels as prescribed by State standards. The noise limit applies to total noise from a motor vehicle or motorcycle including that noise of other vehicles attached thereto. b. The operation of any motor vehicle or motorcycle in such a manner as to create excessive noise such as squealing of tires or other noise unrelated to engine n oise and noise caused by unnecessary grinding, rattling or other vehicle disrepair need not be measure in decibels to violate this section. 9) T he c reation o f a n unreasonably 1 oud a nd e xcessive n oise i n connection with loading or unloading any vehicle or the opening and destruction of bales, boxes, crates and containers. 10) The erection (including excavating), demolition, alteration or repair of any building, other than between the hours of 7:00 a.m. and 6:00 p.m. on weekdays, except in case of urgent necessity in the interest of public health and safety, and then only with a permit from the Building Commissioner. The permit may be granted for a period not to exceed three (3) days or less while the emergency continues and maybe renewed for periods of three (3) days or less while the emergency continues. If the Building Commissioner shall determine that the public health and safety will not be impaired by the erection, demolition, alteration of repair of any building or the excavation of streets and highways within the hours of 6:00 p.m. and 7:00 a.m., and further determines that loss or inconvenience would result to any party in interest, he or she may grant permission for such work to be done within the hours of 6:00 p.m. and 7:00 a.m., upon application being made at the time the permit for th e work is awarded or during the progress of the work. 11) The creation of any loud and raucous noise on any street adj acent to any school, institution or learning, church or court while the same are in use, or adjacent to any hospital, which unreasonably interferes with the working of such institution, or which unduly disturbs patients in the hospital, provided conspicuous signs are displayed in such streets indicating that the same is a school, hospital or court street. 12) The shouting and crying ofpeddlers, hawkers and vendors which disturbs the peace and quiet of the neighborhood. 13) The use of any drum or other instrument or device for the purpose of attracting attention by creation of noise to any performance, show or sale. 14) The transportation of rails, pillars or columns of iron, steel or other materials over and along streets and other public places upon carts, drays, cars, trucks or in any other manner, loaded so as to cause loud and raucous noises to as to disturb the peace and quiet of such streets or other public places. 15) The operation between the hours of 10:00 p.m. and 7:00 a.m. of any pile driver, steam shovel, pneumatic hammer, derrick, steam or electric hoist or other appliance, the use of which is attended b y unreasonably loud or tmtcsuxl raucous noise. 16) The operation of any noise-creating blower or power fan or any internal-combustion engine, the operation of which causes loud and raucous noise due to the explosion of operating gases or fluids, unless the noise from such blower or fan is muffled and such engine is equipped with a muffler device sufficient to deaden such noise. X17) Any noise which blocks interferes with, distorts, renders unintelligible or otherwise substantially impairs the ability ofpublic safety officers in the course of public duty to communicate with each other or with members of the public. a` e3~ Permit for playing noncommercial music in public places. The Board ofPublic Works shall have the authority to grant an annual permit to persons who desire to play noncommercial music in public places. Such permit requests shall be reviewed in light of the applicant providing the following information in written form to the Board: 1) name and address of applicant; 2) nature of music to be played; 3) times and dates when music will be played; 4) a statement verifying that the music will be noncommercial in nature. Upon submission of the above information the Board shall review the same, and if it determines that a public nuisance will not be created which would disturb, injure or endanger the peace and safety of others, an annual permit shall be issued. Any permit granted by the Board of Public Works may be revoked upon a determination that the playing of such music creates a loud, raucous, unreasonable or offensive noise in violation of this section. A determination of invalidity or unconstitutionalit~by a court of competent jurisdiction of any clause sentence, paragraph, section or part, of this Section shall not affect the validity of the remaining_parts of this Section. Section II. Chapter 13, Article 4, Section 13-57.05(a) ofthe SouthBend Municipal Code is amended to read as follows: a) Anyperson violating anyprovisions ofsection 13-57 addressing unreasonable noise regulations shall be subject to the following fines: 1) One hundred dollars ($100.00) for a first offense; 2) Two hundred fifty dollars ($250.00) for a second; 3) Five hundred dollars ($500.00) for a third offense and every subsequent. Section III. This Ordinance shall be in full force and effect from and after the time it has been adopted by the Common Council and approval by the Mayor. Member, South Bend Commo Council Attest: TO THE COMMON COUNCIL OF THE CITY OF SOUTH BEND: Your Committee of the Whole, to whom was referred: BILL NO. 70-05 A BILL OF THE COMMON COUNCIL OF THE CITY OF SOUTH BEND, INDIANA, AMENDING CHAPTER 13, ARTICLE 4, SECTION 13-57 AND 13- 57.05 OFTHE SOUTH BEND MUNICIPAL CODE TO CLARIFY PROHIBITED NOISES WITHIN THE CITY OF SOUTH BEND Respectfully report that they have examined the matter and that in their opinion, this bill is being recommended to the full Council with a favorable recommendation as substituted. Roland Kelly Chairman 14(')0 CALINTY-CTTY BUILDING 227 W. ,JEFFERSON BOULEVARD SOUTH BEND, INDIANA 46601-1830 PxoNE574/235-9241 Fnx 574/235-9892 TDD 574/ 235-5567 CITY OF SOUTH BEND STEPHEN J. LUECKE, MAYOR DEPARTMENT OF LAW CHARLES S. LEONE October 18 2005 ALADEAN M. DEROSE CITYATTORNEY ' CHIEF ASSISTANT' CITYATTORNEY Ms. Charlotte Pfeifer President, South Bend Common Council 435 County-City Building South Bend, IN 46601 Re: Substitute Bi1170-05: Unreasonable Noise Dear Ms. Pfeifer: Attached is a Substitute Bill 70-OS regarding Unreasonable Noise. The only change between this and the original bill is deletion of the words: "after being asked to stop" in the third line of Section I (Code § 13-57 (a)). The change has been made because it can be impractical and ineffective for police to first request that a person making an unreasonable noise stop before issuing a citation. Although the after being asked to stop" language was approved in the Indiana appellate court case on which this amended ordinance is based, that language does not appear mandatory to sustain constitutionality. This substitute should meet the requirements of Indiana law as well as the desire of South Bend citizens for peace and quiet. Thank you for considering this request for a substitute bill. As I stated upon filing the original ordinance, I will make all presentations before the Council. Sincerely, ill Charles S. Leone City Attorney CSL/sra Filed to Clerk's Office ACT ~ ~ i~~l JON,1 YOORDE CITY CLEEIK, S0. BEND, IN. THOMAS L. BODNAR CHERYL A. GREENS ANN-CAROL NASH JEFFREY M. JANKOWSKI JOHN R LIVINGSTON JEFFREY L. SANFORD ,JOHN E. BRODEN