1. Noise OrdinanceCity of Kalispell
Post Office Box 1997 - Kalispell, Montana 59903-1997 - Telephone (406)758-7700 Fax (406)758-7758
TO: Mayor Pamela B. Kennedy and the
Kalispell City Council
FROM: Jane Howington, City Manager
Roger Nasset, Chief of Police
Rich Hickel, Adj. City Attorney
SUBJECT: Proposed Revised Noise Ordinance
MEETING DATE: December 14, 2009
BACKGROUND: On August 17, 2009, a proposed comprehensive noise ordinance was
presented to a work session of the City Council for consideration. Following public comment and
council discussion, it was determined that the ordinance should be revised to eliminate an exemption
for aviations operations conducted at the Kalispell City Airport. This revised ordinance strikes
language concerning aircraft -related noise. It is staff s intention to develop a separate ordinance to
address and regulate aircraft -related noise issues associated with City Airport operations.
This revised ordinance incorporates the "plainly audible standard" which was previously
discussed with the City Council. As previously stated, the advantage of this standard is that it does
not require expensive monitoring equipment. Several courts have upheld the plainly audible standard
for a noise ordinance in the face of legal challenges.1
RECOMMENDATION: With this background, it is the staff recommendation that the City
consider a noise ordinance which incorporates the "plainly audible" standard. It has been tested in
other jurisdictions and with minimal training, officers may be taught to estimate distances. In
drafting the ordinance, staff considered several factors, including various sources of noise, differing
standards based on time of day, noise distance limitations, permitted exceptions, defenses, and
penalties.
1 See, e.g., State of Hawaii v. Ewing, 914 P.2d 549 (1996), finding that a "plainly audible" standard is not
unconstitutionally vague.
Revised Noise Ordinance
Page 1 of 2
FISCAL EFFECTS: Because future compliance with the ordinance is impossible to gauge, the
precise fiscal impact of the ordinance is uncertain. It is expected that enforcement of the ordinance
would involve additional staff time, but we do not anticipate that adoption it would require the
addition of enforcement staff. For this reason, staff believes that adoption of the ordinance would
most likely have a neutral fiscal impact. Any added workload may be offset in whole or in part by
permit fees or by penalties imposed on violators.
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-Howington, City Manage
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"'Rich Hicket, Adj. City Attorne
Revised Noise Ordinance
Page 2 of 2
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Roge Nasset, Chief of Police
ORDINANCE NO.
AN ORDINANCE ADOPTING PROVISIONS RELATING TO NOISE AND SOUND
LEVELS IN THE CITY LIMITS OF KALISPELL; ADDING TO THE KALISPELL CITY
CODE DEFINITIONS, GENERAL NOISE PROHIBITIONS, AND REGULATING NOISY
VEHICLES AND AMPLIFIED SOUNDS; REPEALING ALL INCONSISTENT
PROVISIONS; ALLOWING EXCEPTIONS BY PERMIT; ESTABLISHING DEFENSES
AND PENALTIES; AND ESTABLISHING AN EFFECTIVE DATE.
Whereas, the City Council of Kalispell has determined that there is a need for establishing a
basic level of regulation for the emission of noise and sounds, to promote public welfare and safety
and to help in protecting the users of property who are in close proximity to others from the
degrading effects to their quality of life caused by others who are creating noise at an excessive level
and to protect citizens from the harmful effects and inconvenience of such sounds and to promote
peacefulness within the City; and
Whereas, the public hearings before the Kalispell City Council have additionally
demonstrated a desire by the public for such basic regulation; and,
Whereas, the Kalispell City Council has found that the following regulations will promote the
health, safety, and welfare of the citizens and persons with the City;
NOW THEREFORE,
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF KALISPELL, MONTANA
THAT THE FOLLOWING REGULATIONS BE AND ARE HEREBY ADOPTED, THAT THE
SAME BE ADDED TO THE KALISPELL CITY CODE AND ARE HEREINAFTER EFFECTIVE
WITHIN THE CITY OF KALISPELL:
SECTION I. Definitions.
The following words, terms, and phrases, when used in this Chapter, shall have the meanings
ascribed to them in this section, unless the context of their usage clearly indicated another
meaning:
A. Daytime hours shall mean the hours from 7:00 a.m. to 10:00 p.m., local time.
B. Motor vehicle means every vehicle which is propelled by its own power and designed
or used to transport persons or property on a publicly -maintained highway, road,
street, avenue, alley, driveway, or parking area located in the City of Kalispell.
C. Plainly audible means any sound that can be detected by a person using his or her
unaided hearing faculties. As an example, if the sound source under investigation is
a portable or personal vehicular sound amplification or reproduction device, it is not
necessary that the enforcing party determine the title of the song, specific words, or
discern the artist performing the song. The detection of the rhythmic bass component
or bass reverberation of the music is sufficient to constitute plainly audible sound.
D. Real property boundary means the property line along the ground surface and its
vertical extension, which separates real property owned by one person or entity from
that which is owned by another person or entity.
E. Sound amplification equipment means a radio, tape player, compact disc player,
digital audio player, television, electronic audio equipment, musical instrument,
sound amplifier, or other mechanical or electronic sound -making device that
produces, reproduces, or amplifies sound.
SECTION II. Excessive noise.
A. Unless otherwise excepted or permitted by law, it shall be a civil infraction for any
person to:
1. Operate or allow the operation of any sound amplification equipment so as to
create sounds that are plainly audible from the boundary of the nearest
residentially -occupied property. For multifamily structures, including
apartments, condominiums, or other residential arrangements where boundary
lines cannot be readily determined, it shall be unlawful to operate or allow the
operation of any sound amplification equipment so as to create sounds that
are plainly audible from any point within the interior of another residential
unit in the same complex or within the boundary line of the nearest
residentially occupied property.
2. This section shall not apply to the following:
a. A special event, mass gatherings, or other activity excepted or
permitted by the City government;
b. Entertainment facilities constructed to provide outdoor entertainment
owned or operated by a governmental entity, including but not limited
to the Flathead County Fairgrounds or City parks under the control of
the Kalispell Department of Parks and Recreation.
3. Operate or allow the operation of any sound amplification equipment on the
public right-of-way, including streets and sidewalks, which does not have a
City -issued noise permit and which produces or reproduces sounds which are
plainly audible fifty (50) feet or more from the source.
B. It shall be a civil infraction for any person to conduct the following activities between
the hours of 10:00 p.m. and 7:00 a.m. if they generate sound which is plainly audible
across the property boundary line of the nearest residentially occupied property, or at
a distance of fifty (50) feet or more from the source:
1. Operate any blower, power washer, lawn mower, or lawn trimming device,
power fan or other similar equipment powered by a combustion engine.
2. Test by revving the engine of any motor vehicle, motorcycle, all -terrain
vehicle, snowmobile, mini -bike, scooter, or other similar vehicle powered by
a combustion engine.
SECTION III. Motor vehicle noise.
A. It shall be a civil infraction for any person to:
1. Operate any motor vehicle that is not equipped with a muffler in good
working order and in constant operation to prevent excessive noise;
2. Operate a motor vehicle equipped with a cut-out, by-pass, or similar muffler
elimination unit, or operate a motor vehicle with devices that amplify motor
noise or motor exhaust noise.
3. Operate a motor vehicle if the exhaust noise is plainly audible at a distance of
200 feet. For purposes of this subsection, "plainly audible" means the
detection of the sound of a muffler or of an exhaust system by a person using
his or her unaided hearing faculties.
B. It shall be a civil infraction for any person to:
1. Operate or occupy a motor vehicle on any highway, road, street, avenue,
alley, driveway, either public or private property, or parking area located in
the City of Kalispell any sound amplification equipment from a motor vehicle
between the hours of 7:00 a.m. and 10:00 p.m., local time, in a manner such
that the sound is plainly audible at a distance of fifty (50) feet from the
vehicle, or in the case of a motor vehicle on private property, beyond the
property line.
2. Operate or occupy a motor vehicle on any highway, road, street, avenue,
alley, driveway, either public or private property, or parking area located in
the City of Kalispell any sound amplification equipment from a motor vehicle
between the hours of 10:00 p.m. and 7:00 p.m., local time, in a manner such
that the sound is plainly audible by any person outside the vehicle.
C. Prohibitions contained in this section shall not be applicable to emergency or public
safety vehicles, vehicles owned and operated by a governmental agency or any utility
company, for sound emitted unavoidably during a job -related operation, or any
authorized public or private activity for which a permit has been granted by the
appropriate agency of the City government.
SECTION IV. Permit to conduct outdoor activities.
A. The City of Kalispell may issue a permit for certain outdoor activities which will
allow the holder to exceed sound level standards established in this Chapter. No
permit is required for any use not prohibited by law or for any use not exceeding
permissible sound levels.
1. The permit may be granted in the following manner:
(a) May be obtained by making application to the City Manager or his or
her designee.
(b) A payment of a $10.00 fee to cover the administrative cost of issuing
the permit. A sworn statement of inability to pay may be filed in lieu
of the normal administrative fee.
(c) The permit will be valid for any requested time period between the
hours of 7:00 a.m. and 10:00 p.m., local time.
(d) The permit shall not be issued to the same person, or any other person
in the same location more than twice in any 30-day period. In the
case of a sound truck, located shall relate to the area traversed by the
truck in one day.
(e) The permit shall specify the maximum sound level permitted.
2. The permit application required to be filed under this section shall contain the
following information:
(a) The date of the application and the date and hours for which the
permit is requested.
(b) The name and address of the applicant.
(c) The name and address of the person who will be conducting the
permitted activity.
(d) The address and a description of the location where the activity will
be conducted.
(e) A description of the sound source to be used by the permit holder.
3. The permit hereby required is not required for the purpose of regulating
speech which is protected speech or to conflict with any law of any superior
governmental authority.
B. Issuance of a valid City parade permit will exempt the holder from City noise
regulations during the parade event.
SECTION V. Defenses.
A. The following defenses shall apply to any infraction cited for in the Chapter, and the
same must be specifically pled by anyone cited with a violation:
1. The emission of any sound was for the purpose of alerting persons to the
existence of an emergency, danger, or attempted crime, or was produced
pursuant to any safety rule or regulation of any governmental entity or
agency.
2. The sound was produced by an authorized emergency vehicle.
3. The sound was produced by emergency work.
4. The sound was generated:
(a) At a lawfully scheduled stadium event;
(b) By a parade and spectators and participants on the parade route during
a lawfully -permitted parade;
(c) By spectators and participants at a lawfully -scheduled fair, carnival,
music event or theatrical event;
(d) By a pyrotechnic display that was permitted by the local fire marshal;
(e) By spectators and participants of any outdoor event, fun run, race,
festival, fiesta, or concert that was sponsored or cosponsored by the
City or in full compliance with a permit issued by the City.
5. The sound was produced by railroad equipment in operation on railroad
rights -of -way.
6. The sound was produced by the erection, excavation, construction, or
demolition of any building or structure, road construction activity, trash or
refuse collection, sidewalk installation, public infrastructure installation or
other attendant activities, when necessary for the installation, maintenance, or
upkeep of such improvements.
7. The sound was produced by church bells or church chimes when used as part
of a religious observance or service during the daytime hours for the zone in
which the church is located.
8. The sound was produced by power equipment or yard or lawn maintenance
equipment or device used between the hours of 7:00 a.m. and 10:00 p.m.
when the sound is being produced for the maintenance and upkeep of the
property on which it is operated.
9. The sound was produced during the daytime hours by activities conducted on
public parks, public playgrounds, and public or private school grounds,
including, but not limited to, school athletic events, band and school
entertainment, or practices for such events.
SECTION VI. Penalty.
A. Any person who violates any provision of this chapter may be issued a civil
infraction citation, which if proven by clear and convincing evidence shall have a
civil penalty imposed by the Court in accordance with Section 1-12 of the Kalispell
City Code.
B. Each hour or portion thereof in which a violation shall occur shall constitute a
separate violation.
C. Enforcement of this Chapter shall not require the pleading or proving of any culpable
mental state.
SECTION VII. Repealer.
All other ordinances or parts of ordinances in conflict with this Chapter are repealed to the
extent that they are in conflict.
SECTION VIII. Severability.
In the event that any one or more of the provisions contained in this Chapter shall, for any
reason, be held to be invalid or unenforceable in any respect, such invalidity, illegality, or
unenforceability shall not affect any other provision of this Chapter, which shall remain in
full force and effect unless the deletion of such provision or provisions would result in such a
material change so as to cause the entirety of the Chapter to be unreasonable, uncertain, or
unintelligible.
SECTION IX. Effective date.
This Ordinance shall be effective thirty (30) days from and after the date of its final passage
and approval.
PASSED AND APPROVED BY THE CITY COUNCIL AND SIGNED BY THE MAYOR OF THE
CITY OF KALISPELL, THIS _ DAY OF , 2009.
Pamela B. Kennedy
Mayor
Attest:
Theresa White
City Clerk