2019-163 Industrial Noise OrdinanceDate: August 16, 2019 Report No. 2019-163
INFORMAL STAFF REPORT TO MAYOR AND CITY COUNCIL SUBJECT: Provide information on an industrial noise ordinance. EXECUTIVE SUMMARY: Currently, the City of Denton regulates noise by enforcing Texas Penal Code §4201(a)(5)(Disorderly Conduct) or in appropriate cases, Denton Code §17-20 (Noise in the Denton Property Maintenance Code (DPMC)). The City is authorized to adopt a noise ordinance that would limit the amount of industrial noise. However, adopting an objective noise standard
for industrial uses would not adequately address complaints. The City changed how it prosecuted noise violations in 2014 by repealing noise standards for “industrial uses” and “Noise Management Standards” for gas wells and replacing with a reference to state law in the Development Code. The intent was to simplify the enforcement of noise complaints by using the Texas disorderly conduct law, which requires only evidence that the activity produced an
“unreasonable noise” in a public place or someone’s home. BACKGROUND: City Council requested information on May 21, 2019, regarding the addition of noise limits for industrial uses to the City’s noise ordinance. The City Code prevents general noises that either
have an intensity and volume so as to measure more than 65 dba at more than 50 feet from the source or cause any physical or psychological distress. Construction noises are permissible only between certain hours and radio and other musical devices from vehicles cannot be audible to any person from more than 35 feet from the vehicle at 65 dba. Recently, City Council held a work session regarding the noise produced by the Denton Energy Center and was provided
information on the noise levels produced by the facility. For reference, the sound level of the plant at full operation was 70 dba. DISCUSSION: Following resident complaints about the noise produced by gas wells and Acme Brick on Fort
Worth Drive, the City repealed noise standards in 2014 for “industrial uses” and gas well “Noise
Management Standards” and replaced the industrial noise standards with a reference to Texas Penal Code § 42.01(a)(5), which makes it a Class C misdemeanor to “intentionally or knowingly” make “unreasonable noise in a public place. . . in or near a private residence.” The standard is whether the use or activity makes an unreasonable level of noise in a public place or
private home. To successfully prosecute, the complainant who was affected by the noise will
testify in court about how the noise was unreasonable. The City’s noise standards were repealed in 2014 because ordinances that impose objective noise levels are more difficult to prosecute. The officer must use a sound-level meter to measure the
decibels. If the violator1 is charged because the reading exceeds the ordinance standard, the
1 The City would have to charge a human person responsible for the industrial noise. In order to convict a
corporation, Texas Penal Code §7.22 requires the board or person in management produced, requested, or recklessly
tolerated the commission of the noise. Even if there is a clear violation, there must be proof of high level involvement to obtain a successful jury verdict.
Date: August 16, 2019 Report No. 2019-163
violator could successfully defend the charge by arguing the decimeter reading was inaccurate or that another use or activity, e.g., traffic, created the noise. Another issue is how sound travels. Bass frequencies expand as they travel from the source of the noise. For example, many
homeowners east of Acme Brick and across the street from South Lakes Park complained of walls and windows rattling from the base resulting from gas well drilling. However, from their homes and from South Lakes Park, the police decimeter readings were below the maximum decibel allowed by City ordinance. Therefore, it would be difficult for the City to prove a certain industrial user or activity produced the noise measured by the sound-level meter.
Most important, if the reading does not exceed the standard, then the complainant has no remedy under a noise ordinance. Therefore, the recommended course of action is to use the disorderly conduct statute to prosecute noise violations.
CONCLUSION: The City of Denton regulates industrial noise using Texas Penal Code §42.01(a)(5). If City Council chooses to move forward in establishing noise standards for industrial uses, please note that the problems resolved as part of the 2014 ordinance will likely resurface.
ATTACHMENT(S): None STAFF CONTACT:
Cynthia Kirchoff City Attorney’s Office (940)349-8397 Cynthia.Kirchoff@cityofdenton.com
Charlie Rosendahl- Development Services
Business Services Manager (940) 349-8452 Charles.Rosendahl@cityofdenton.com
REQUESTOR: Council Member Briggs PARTICIPTAING DEPARTMENTS: Development Services and City Attorney’s Office STAFF TIME TO COMPLETE REPORT: 14 hours