Town Council Regular Session


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  Item # 1.       
Meeting Date: 09/02/2020  
Requested by: Bayer Vella
Submitted By: Michael Spaeth, Community and Economic Development
Case Number: 1901670

SUBJECT:
DISCUSSION REGARDING A PROPOSED CODE AMENDMENT TO THE NOISE ABATEMENT STANDARDS, ONLY FOR NEW AND SPECIFIC LAND USE TYPES, AND SEPARATION REQUIREMENTS FOR CONVENIENCE USES OF THE ZONING CODE
RECOMMENDATION:
This item is for presentation and discussion only.
EXECUTIVE SUMMARY:
The purpose of this item is to discuss a proposed Zoning Code amendment (Attachment 1) related to 1) noise abatement standards as a component of development review and 2) separation requirements for convenience uses. This item is on the Planning Division Workplan and Town's Strategic Plan.

This Zoning Code amendment accomplishes the following:
  1. Establishes a proactive and effective approach in mitigating noise impacts during design review
  2. Eliminates the unusably low existing noise threshold of "40 decibels." The decibel thresholds have been right sized using international standards and extensive consulting services by a qualified noise expert.
  3. Replaces an overly simplistic "one size fits all" approach to regulating noise that does not account for the type of adjacent land uses or time of day. Standards that are land use specific and attuned to time of day have been added.
  4. Adjusts land use distance separation requirements for convenience uses (gas stations, drive-thru's, small markets like Circle K and car washes) that are, in some cases, redundant and unnecessarily punitive. The amendment enables Town Council to adjust distance requirements between a convenience use and residential subdivision/home, park or school based on site specific conditions when potential impacts are negated by barriers (hills, wide streets, buildings etc.).
Relative to the regulation of noise, the result is a model code that is superior to other Arizona communities and will serve as a template for other jurisdictions in the future. 

Part 1 - Noise standards relative to development review

The first part of this proposed code amendment deals with noise standards for new development review applications only. The primary goal of this code amendment is to establish noise standards in the Zoning Code that will be proactive and used only during development review for new land uses. The current Zoning Code standards address, among other things, noise generating businesses (e.g. restaurants with outdoor speakers or auto shops) and are generally meant to be proactive as they are often associated with a corresponding Conditional Use Permit, but not in all instances. The proposed code language represent a more effective, efficient and equitable means of dealing with potential noise issues preemptively during design review.

Beyond the Zoning Code, noise impacts are also addressed in Town Code. However, as opposed to the Zoning Code, these standards are "reactive" and deal with nuisances after a complaint is received. The proposed amendment is not intended to deal with these types of nuisances arising from "unreasonable noise" emanating from an existing land use - or once a new building is operational. Those types of noise violations are handled exclusively by Town Code via the Oro Valley Police Department. 

In addition to which standards are applied and when, the existing Zoning Code standards present several other impractical challenges. Those standards (shown below) apply to all non-residential land uses:

Section 25.1.A.3
  1. Noise from internal loudspeakers, paging systems, live entertainment or stereo speakers shall not exceed forty (40) decibels at the property line of any adjacent property used or intended for residential purposes.
  2. No external speakers, except for drive-thru order purposes, piped-in-ambiance music that is not discernible (less than (40) decibels) from on-site property lines, special events and/or approved outdoor entertainment venues, shall be permitted on premises.
Typically, many of the examples listed above are addressed through appropriate mitigation (e.g. larger buffers, building orientation, etc.) as part of a Conditional Use Permit (CUP). However, these standards also apply to non-residential uses that do not require a CUP, some of which may generate noise impacts. For these uses, and specifically those which may occupy an existing vacant building where site design has been previously approved, a standard process and scale for evaluating noise impacts during development review is necessary.

The existing standards listed above represents a "one size fits all" approach that is unreasonable as 40 decibels is more representative of a causal conversation, rather than noise generated from a business. Both requirements are broken as not only is the threshold unreasonably low, in fact often less than surrounding background noise, but different land uses should have different noise standards as a standard for a residential subdivision is likely not appropriate for tech park areas. It is clear the standard needs to be updated. With that said, this part of the code amendment will address those existing issues by establishing:
  1. When a noise abatement study is required; 
  2. The ability for the Planning and Zoning Administrator to develop a standard protocol for measuring noise during the development review process;
  3. What mitigation measures may be appropriate (e.g. enhanced landscaping, sound walls, acoustic insulation, etc.);
  4. A scale for analyzing noise impacts of proposed development
As part of the due diligence process, staff conducted an expansive research effort through which it became clear the existing standard is impractical and unrealistic. For comparison (also highlighted in Attachment 2), normal breathing is generally between 20-25 decibels, while a typical conversation is somewhere between 60-70 decibels. 40 decibels is an unreasonably low standard when compared to other everyday activities and a realistic standard staff can use to evaluate impacts needs to be developed. In fact, it is often lower than the surrounding background noise at the particular location. 

The proposed amendment will establish noise limits for development review analysis only based on two factors. The first is the type of land use "receiving" the noise (e.g. residential, commercial, multi-family, etc.). For example, if the noise is being generated from a commercial use and is being heard from an adjoining residential use, the "receiving" use, is the neighboring residential property.

The second factor is the time of day, with different nighttime and daytime limits. Both factors are shown in the table in Attachment 1 which includes a more reasonable standard based on the context of the noise and will serve as a much more efficient means of evaluating sound impacts as part of development review. The noise standards are similar to other southern Arizona jurisdictions, a comparison of which is included in Attachment 3. This table is intended to only serve as a benchmark for development review analysis and will not impact "unreasonable or nuisance noise" for existing or newly built land uses cited in Town Code. Those issues will be strictly handled by the Oro Valley Police Department when complaints are received. 

Part 2 - Separation requirements for convenience uses

The second part of this amendment deals with the separation requirements for convenience uses. Currently, the zoning code requires minimum separation requirements for convenience uses (gas stations, drive-thru's, small markets like Circle K and car washes) to minimize potential nuisances to surrounding land uses from impacts like noise, odor and visual impacts. The required separation is as follows:
  • Two-hundred fifty (250) feet from any property used or intended for residential purposes
  • Five-hundred (500) feet from any public park or school
The proposed amendment will provide Town Council the flexibility to reduce this minimum requirement in certain instances where "major barriers" exist between a convenience use and a residential, public park or school use. Major barriers include:
  • Buildings, which will clearly impact sound levels
  • Topographical features such as hillsides
  • Major arterial intersections
The minimum separation requirements are appropriate where no extenuating circumstances exist; however, when there are barriers such as those listed above, the requirement is redundant as the potential nuisance impacts will likely be negligible. A reduction in the requirement may be appropriate on a case by case basis. 

The proposed amendment was considered by the Planning and Zoning Commission on June 2, 2020, and July 7, 2020, and has recommended approval. The staff reports are included as Attachments 4 and 5, respectively. The approved minutes from both meetings are included as Attachments 6 and 7. 

Again, this item is being presented for discussion only. 
BACKGROUND OR DETAILED INFORMATION:
The purpose of this Strategic Plan initiative is to address a proposed Zoning Code amendment (Attachment 1) to the following:
 
  1. Update the noise standards relative to development review only for new and specific land use types; and
  2. Provide an avenue, where appropriate, for the separation requirements of convenience uses (gas stations, drive-thru's, small markets like Circle K and car washes) to be reduced as part of a Conditional Use Permit review when there are mitigating factors like topography, physical barriers or wide roadway separation, etc.
Part 1 - Noise standards relative to development review for new land uses

The first part of this proposed code amendment deals with noise standards relative to only new development review applications. The primary goal of this code amendment is to establish noise standards in the Zoning Code that will be proactive and used only during development review for new land uses. The current Zoning Code standards address, among other things, noise generating businesses (e.g. restaurants with outdoor speakers or auto shops) and are generally meant to be proactive as they are often associated with a corresponding Conditional Use Permit, but not in all instances. The proposed code language represent a more efficient and equitable means of dealing with potential noise issues preemptively during design review.

Beyond the Zoning Code, noise impacts are also addressed in Town Code. However, as opposed to the Zoning Code, these standards are "reactive" and deal with nuisances after a complaint is received. The proposed amendment is not intended to deal with these types of nuisances arising from "unreasonable noise" emanating from an existing land use - or once a new building is operational. Those types of noise violations are handled exclusively by Town Code. The Oro Valley Police Department was consulted during the development of the code amendment and is in full support of the proposed changes. 

The current zoning standards (shown below) apply to all non-residential land uses:

Section 25.1.A.3
  1. Noise from internal loudspeakers, paging systems, live entertainment or stereo speakers shall not exceed forty (40) decibels at the property line of any adjacent property used or intended for residential purposes.
  2. No external speakers, except for drive-thru order purposes, piped-in-ambiance music that is not discernible (less than (40) decibels) from on-site property lines, special events and/or approved outdoor entertainment venues, shall be permitted on premises.
Typically, many of the instances listed above are addressed through appropriate mitigation (e.g. larger buffers, building orientation, etc.) as part of a Conditional Use Permit (CUP) review. However, these standards also apply to non-residential uses that do not require a CUP, some of which may generate noise impacts. For these uses, and specifically those which may occupy an existing vacant building where site design has been previously approved, a standard process and scale for evaluating noise impacts is necessary. 

First, the proposed code amendment will establish a requirement for a noise abatement study concurrent with development review (i.e. new site design and improvements to existing buildings) when a use may generate noise beyond the on-site property boundary. For these uses, the noise study will be a submittal requirement to determine appropriate mitigation measures during the design review process.  

For example, when a new auto garage is proposed, the new standards provide a more targeted and effective means of evaluating the impacts to surrounding properties. If the development is proposed along a major roadway next to other commercial uses, the criteria would allow for appropriate evaluation of the impacts in that context. In that scenario where maximum sound levels would be higher, there may not be a need for much mitigation.

Conversely, if the development is proposed near less intensive uses (e.g. residential) where the maximum sound levels would be lower, the criteria allows for specific evaluation in that context to ensure more substantial and effective mitigation is incorporated. This could include, among other measures, sound walls, and/or re-orienting the building away from the residential. Again, the existing standard is broken and the proposed amendment allows for more targeted and appropriate evaluation as part of the initial development review process. 

As part of the due diligence process, staff conducted an expansive research effort through which it became clear the existing standard (40 decibels) is impractical and unrealistic. For comparison (as highlighted at right and shown in Attachment 2), normal breathing is generally between 20-25 decibels, while a typical conversation is somewhere between 60-70 decibels. Forty (40) decibels is an unreasonably low standard when compared to other everyday activities and a realistic standard staff can use to evaluate impacts during development review needs to be incorporated.













To aid in this effort, the Town hired a sound consultant to help develop and define a more realistic and appropriate sound standard. The proposed amendment will establish noise limits for development review analysis based on two factors. The first is the type of land use "receiving" the noise (e.g. residential, commercial, multi-family, etc.).

For example, as shown in the graphic below, if the noise is being generated from a commercial use (shown in red) and is being heard at the point of measurement (identified with a blue X) from an adjoining residential use (shown in peach), the "receiving" use is the neighboring residential property.



















The second factor is the time of day, with different limitations for nighttime and daytime. Both factors are shown in the table below and in Attachment 1. 

















The above table will establish a more reasonable standard based on the context of the noise and will serve as a much more efficient means of evaluating sound impacts as part of development review. The noise standards are similar to other southern Arizona jurisdictions, a comparison of which is included in Attachment 3. This table is intended to only serve as a benchmark for development review analysis and will not impact noise or nuisance noise as cited in Town Code. 

Lastly, a key component of any noise abatement study is to establish a standard methodology to determine how to measure sound. The code amendment will enable the Planning and Zoning Administrator to develop a standard protocol for measuring noise impacts as part of development review. The protocol will include, among other things, what type of measurement tool is required, how to calibrate said tool, how a noise study is to be conducted and how to measure the noise. The protocol is not intended to be part of the code, as technology changes quickly and updates to the procedures will likely be frequent to maintain an updated standard. However, staff has worked with a noise consultant to develop a technical bulletin which will help inform the standard protocol and those conducting future noise studies. 

Part 2 - Separation requirements for convenience uses

The second part of this amendment deals with the separation requirements for convenience uses. Currently, the zoning code requires minimum separation requirements for convenience uses to minimize potential nuisances to surrounding land uses from, among other things, noise, odor and visual impacts. The required separation is as follows:
  • Two-hundred fifty (250) feet from any property used or intended for residential purposes
  • Five-hundred (500) feet from any public park or school
The above distances are measured from "...the abutting edge of the residential district to the closest property line or lease line of the convenience use" and "...includes all required parking, landscaping and setbacks of the use". 

The second part of the proposed amendment will provide Town Council the flexibility to reduce this minimum requirement in certain instances where "major barriers" exist between a convenience use and residential, park or school uses. Major barriers include:
  • Buildings
  • Topographical features such as hillsides
  • Major arterial intersections
The minimum separation requirements are appropriate where no extenuating circumstances exist, however; when there are barriers such as those listed above, the requirement is redundant as the potential nuisance impacts will likely be negligible. For example, several commercial properties along Oracle Road are across (west) from Pusch Ridge Christian Academy. Though these properties are separated from the school by a major roadway (also a State highway), they are within 500 feet of the school property. As such, though the wide right-of-way or intersection effectively eliminates most potential impacts, no convenience uses are allowed within the 500 feet area.

The proposed amendment would allow Town Council to determine whether or not a reduction is appropriate. Finally, by limiting this flexibility to only apply when major barriers exist, ensures a balance between development applications and neighbors surrounding the property. 

PUBLIC PARTICIPATION 

The proposed amendment was considered by the Planning and Zoning Commission on June 2, 2020 and July 7, 2020 and has recommended approval. The discussion among Commissioners focused on the enforcement of noise standards and the extent of changes. The staff reports are included as Attachments 4 and 5, respectively. The approved minutes from both meetings are included as Attachments 6 and 7. 

SUMMARY

The proposed Zoning Code Amendments have been reviewed for conformance with the Your Voice, Our Future General Plan Vision, Guiding Principles, Goals and Policies and are in general conformance. Furthermore, the proposed amendments address an existing item on both the Planning Division Workplan and Town Strategic Plan.

This Zoning Code amendment accomplishes the following:
  1. Establishes a proactive and effective approach in mitigating noise impacts during design review
  2. Eliminates the unusably low existing noise threshold of "40 decibels". The decibel thresholds have been right sized using international standards and extensive consulting services by a qualified noise expert.
  3. Replaces an overly simplistic "one size fits all" approach to regulating noise that does not account for the type of adjacent land uses or time of day. Standards that are land use specific and attuned to time of day have been added.
  4. Adjusts land use distance separation requirements for convenience uses (gas stations, drive-thru's, small markets like Circle K and car washes) that are, in some cases, redundant and unnecessarily punitive. The amendment enables Town Council to adjust distance requirements between a convenience use and residential subdivision/home, park or school based on site specific conditions when potential impacts are negated by barriers (hills, wide streets, buildings etc.).
Relative to the regulation of noise, the result is a model code that is superior to other Arizona communities and will serve as a template for other jurisdictions in the future. 
FISCAL IMPACT:
N/A
SUGGESTED MOTION:
This item is for presentation and discussion only.
Attachments
ATTACHMENT 1 - PROPOSED CODE AMENDMENT
ATTACHMENT 2 - TYPICAL SOUND LEVELS
ATTACHMENT 3 - COMPARISON OF SURROUNDING JURISDICTIONS
ATTACHMENT 4 - JUNE 2, 2020 PZC STAFF REPORT
ATTACHMENT 5 - JULY 7, 2020 PZC STAFF REPORT
ATTACHMENT 6 - JUNE 2, 2020 PZC MEETING MINUTES
ATTACHMENT 7 - JULY 7, 2020 PZC MINUTES
Staff Presentation


    

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