PRESENTER: Presenter
Christopher J. Looney, AICP, Planning and Development Services Director
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SUBJECT: Title
Public hearing and first reading of an ordinance regarding amendments to the City’s Code of Ordinances in Chapter 144 Zoning, Section 1.4, Definitions and 5.3-4, Additional residential buffering requirements.
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DEPARTMENT: Planning and Development Services
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COUNCIL DISTRICTS IMPACTED: All
BACKGROUND INFORMATION:
Staff Contact: Mary Lovell, Senior Planner
(830) 221-4051
mlovell@newbraunfels.gov
On August 21, 2023, the Planning and Development Services Department made a presentation to City Council seeking direction to address a subsection of Chapter 144 (Zoning) of the City’s Code of Ordinances regarding outdoor audio and music. City Council directed staff to move forward with one of the options provided in the presentation.
On September 6, 2023, the Planning Commission made a recommendation regarding modifying the subject subsections of Chapter 144.
On October 9, 2023, City Council directed staff to bring forth alternative amendments that would provide a more balanced solution regarding outdoor audio and music near residences. City Council also directed staff to add definitions of the terms “adjacent” and “abutting” to Chapter 144.
On November 7, 2023, Planning and Development Services Department staff made a presentation to the Planning Commission. The Commission voted to move the item forward to City Council without a recommendation.
The Planning and Development Services Department reviewed the regulations set forth in Section 144-5.3-4, Additional Residential Buffering Requirements, adopted with Ordinance No. 2012-49, on September 10, 2012. The ordinance states the following, regarding outdoor audio and outside music:
(b) Where a non-residential building or a multifamily development is adjacent to residential uses or residential zoning outdoor audio or speakers are prohibited unless being used to provide ADA access at fuel pumps.
(c) Where a non-residential building or a multifamily development is adjacent to residential uses or residential zoning outside music is prohibited.
Since 2012, three additional ordinances related to noise, outside audio, and outdoor music have been adopted/updated by City Council:
• Section 82-9, Noise Regulations, also known as the “Noise Ordinance”, was adopted with Ordinance 2015-43 on August 24, 2015. The noise ordinance sets forth maximum permissible sound levels (decibels) for residential districts and nonresidential property, as well as distance requirements and hours of operation.
• Section 144-5.17, Short Term Rental or Occupancy was last updated with Ordinance 2020-20, on March 9, 2020. This ordinance reiterates that occupants and guests of a short-term rental must comply with the Noise Ordinance as set forth in Chapter 82 as noted above.
• Section 91.3, related to special events, was adopted in the Zoning Ordinance but recently relocated to its own Chapter (91) with Ordinance 2023-07 on February 27, 2023. This ordinance states that music or sound for special events, amplified or otherwise, may not be any closer than 200 feet from residential uses and zoning; must be oriented away from residential; and reiterates required compliance with the Noise Ordinance.
ISSUE:
The following issues have been identified:
• The subject Zoning Ordinance subsections were added to address specific issues of concern in 2012, prior to adoption of the current Noise Ordinance.
• The Noise Ordinance is the typical tool municipalities use to address noise/sound issues, not the Zoning Ordinance.
• The two aforementioned subsections of the Zoning Ordinance create redundancy and confusion in plan review and code enforcement and have impacted some small business development opportunities over the years.
• The reference in these subsections to “residential uses or residential zoning” speaks specifically to the cumulative/pyramidal zoning concept within the current ordinance; it provides a level of additional protection to legally nonconforming residences remaining within the manufacturing, industrial, and commercial zoning districts.
• Including these noise/sound prohibitions when “adjacent” results in inconsistent limitations at varying distances, e.g., one music-related use might be farther from residential than another, however neither would be allowed.
• The reference to ADA allowances at fuel pumps is outdated in consideration of modern video screens and audio at fuel pumps, electric vehicle charging stations, and other kiosk type uses. Additionally, it is unnecessary to include ADA allowances in the Zoning Ordinance as any requirements of the Americans with Disabilities Act will always supersede any local municipal ordinances; including it here could lead some to the inaccurate conclusion that fuel pumps are the only types of uses that have ADA exceptions to local ordinances.
• The Land Development Ordinance (LDO) consultants assisted by researching other cities: they were unable to find other cities with similar such audio or music prohibitions in their zoning ordinances; most cities address sound/music nuisances through comprehensively researched and vetted noise ordinances based on decibel level limits.
• The impact on existing residences that have benefitted from these rules may influence the options to address the issues above.
FISCAL IMPACT:
N/A
Recommendation
RECOMMENDATION:
Staff’s original recommendation included elimination of the two subject sections and allowing the separate adopted Noise Ordinance to govern. This is how it is currently proposed in the LDO draft. Upon further review and direction to minimize impact on existing affected residences, the following is an alternative recommendation:
1) Add definitions for the terms Abutting and Adjacent (see attached) to Chapter 144.
2) Delete subsection (b):
a. Drive-thru speakers are regulated in Chapter 144, Section 5.2.
b. ADA allowances at fuel pumps are addressed under the Americans with Disabilities Act and do not need to be repeated in the local Zoning Ordinance.
3) Replace the term “adjacent” in subsection (c) (new subsection (b)) with the term, “abuts,” in concert with the new definition to clarify that outdoor music is not allowed when the subject properties share a common boundary or lot line. This will:
a. Clarify exactly what is required for plan review and code compliance.
b. Resolve confusion amongst the public regarding what is specifically required, and when/whom to call for enforcement.
c. Resolve inconsistent and unfair application between large and small tracts or when separated from protected properties by large intervening obstacles (e.g., IH-35).
4) Retain the reference to both “residential uses and residential zoning” which would continue to protect homes that happen to still be within commercial or manufacturing zoning districts (old cumulative zoning).
5) Add an appropriate reference to Chapter 82 which houses the City’s Noise Ordinance. Chapter 82 provides comprehensive requirements regarding noise and its impact to residential zoning districts and includes limits on times of operation and distance requirements.