Board of Supervisors: June 30, 2005

June 30, 2005

June 30, 2005

Virginia:

At a Continued Meeting of the Nelson County Board of Supervisors on June 30, 2005, 6:00 p.m., at the Courthouse in Lovingston, Virginia, thereof:

Present:   Gary E. Wood, Chair
       Harry S. Harris, Vice Chair
       Constance Brennan, Central District Supervisor
       Thomas H. Bruguiere, Jr., West District Supervisor
       Thomas D. Harvey, North District Supervisor
       Stephen A. Carter, County Administrator
       Fred M. Boger, Planning Director
       Virgie A. Carter, Deputy Clerk
       Betty M. Fortune, Planning Secretary

Agenda Item Number I. Call Meeting to Order

Chair Wood called the Meeting to order at 6:00 p.m.

Agenda Item Number II. Consider Emergency Ordinance: Noise Control

Mr. Carter presented a draft Emergency Ordinance for Noise Control and stated that the proposed Ordinance was drafted by County Attorney Payne.

Mr. Payne stated that several issues were expressed at the Public Hearing on June 14th and he tried to address them when crafting the proposed Ordinance. Mr. Payne noted that an acoustical engineer assisted in drafting the Ordinance.

Mr. Payne stated that the existing Ordinance is ambiguous and difficult to enforce; does not limit noise on Sundays unless that Sunday comes before a national holiday; and allows for decibel levels far above those recommended for residential and rural areas.

Mr. Payne reviewed the proposed Ordinance and noted that Section 15.2-1427.F of the Code of Virginia (1950 as amended) allows counties to adopt emergency ordinances for sixty days without prior notice.

Concluding Mr. Payne’s presentation, Mr. Wood stated that the draft is a good Ordinance, it provides the detail needed and level for all noise, and the exemptions are good.

The Board of Supervisors went into Closed Session to discuss specific legal matters requiring legal advice as follows:

Re: Closed Meeting

On a motion by Ms. Brennan, seconded by Mr. Harris, with Ms. Brennan voting yes, Mr. Harris voting yes, Mr. Harvey voting yes, Mr. Bruguiere voting yes, and Mr. Wood voting yes, the following Resolution was adopted:

BE IT RESOLVED, That Pursuant to Section 2.2-3711.A.7 of the Code of Virginia, 1950, that the Nelson County Board of Supervisors does hereby hold a closed meeting for the following purposes:

Consultation with legal counsel employed or retained by a public body regarding specific legal matters requiring the provision of legal advice by such counsel.

Re: Return to Regular Session

On a motion by Ms. Brennan, seconded by Mr. Harris, with Ms. Brennan voting yes, Mr. Harris voting yes, Mr. Harvey voting yes, Mr. Bruguiere voting yes, and Mr. Wood voting yes, the following Resolution was adopted:

BE IT RESOLVED, That the Nelson County Board of Supervisors does hereby return to Regular Session.

Re: Certification of Closed Meeting

On a motion by Ms. Brennan, seconded by Mr. Harris, with Ms. Brennan voting yes, Mr. Harris voting yes, Mr. Harvey voting yes, Mr. Bruguiere voting yes, and Mr. Wood voting yes, the following Resolution was adopted:

BE IT RESOLVED, That Pursuant to Section 2.2-3712.D of the Code of Virginia, 1950, that the Nelson County Board of Supervisors certify that to the best of each member’s knowledge (i) only public business matters lawfully exempted from open meeting requirements under Chapter 37 (Virginia Freedom of Information Act) of Title 2.2 of the Code of Virginia, 1950, and (ii) only such public business matters as were identified in the motion by which the closed meeting was convened were heard, discussed or considered in the meeting by the public body.

The Board of Supervisors adopted the following Emergency Ordinance:

Re: Adoption of Emergency Ordinance for the Control of Sound Crossing Outdoor Real Property Boundaries

On a motion by Ms. Brennan, seconded by Mr. Bruguiere, with Ms. Brennan voting yes, Mr. Bruguiere voting yes, Mr. Harvey voting no, Mr. Harris voting yes, and Mr. Wood voting yes, the following Ordinance was adopted:

BE IT RESOLVED, That the Nelson County Board of Supervisors does hereby adopt an Emergency Ordinance for the Control of Sound Crossing Outdoor Real Property Boundaries Pursuant to Section 15.2-1427.F of the Code of Virginia (1950 as amended) with the addition of an exception for hunting of live game or nuisance or predatory animals in accordance with applicable law as follows:

ORDINANCE FOR THE CONTROL OF SOUND
CROSSING OUTDOOR REAL PROPERTY BOUNDARIES

Sec. 8-33.   Title.

   This Ordinance shall be known as the “Ordinance for the control of sound crossing outdoor real property boundaries.”

Sec. 8-34.   Definitions.

   a.   Ambient Background Sound – that sound normally present at a location when a sound source under investigation is not in operation.

   b.   A-Weighted Sound Level – the sound level in decibels as measured on a sound level meter using an A-weighting network as defined in ANSI IS.42. In proper terminology, such a sound level should be stated for example as “The A-weighted sound level is 60 dB.” In common practice this is abbreviated as “The sound level is 60 dBA.” The “A” added to “dB” to signify that the sound is A-weighted during the measurement.

   c.   Construction – On-site erection, fabrication, installation, alteration, repair, demolition or removal of any structure, facility, or addition thereto, including all related activities, including but not restricted to, clearing of land, earthmoving, blasting, landscaping, and paving.

   d.   Commercial Land Use – any tract or parcel of land used for commercial, office, or institutional purposes including retail sales and government facilities, but not including those uses that involve offering a place for sleep as hospitals, rest and nursing homes, dormitories, hotels, motels, and campgrounds.

June 30, 2005

   e.   Decibel (dB) – a unit of level (see level) that denotes the ratio between two quantities that are proportional to power. The number of decibels is 10 times the logarithm (to the base 10) of this ratio. (When measuring sound, the square of the sound pressure is the quantity proportional to power.)

   f.   Discrete Tone – A sound that concentrated at a single frequency or few individual frequencies such that it is difficult to ignore and gives the sensation of a specific pitch. Examples are sirens, bells, whistles, and the whining sound produced by certain fans.

   g.   Frequency – the number of times in one second (i.e., the number of cycles per second) that a periodic phenomenon, such as a sound wave, repeats itself. The unit of frequency is the Hertz (Hz).

   h.   Hertz (Hz) – the unit of frequency, formerly “cycles per second.”

   i.   Industrial Land Use – any tract or parcel of land used for manufacturing, sawmills, lumber yards, public utilities, and similar heavy commercial operations.

   j.   Level – A measure defined by the logarithm of the ratio of a given power-like quantity to a reference quantity of the same kind.

   k.   Loudspeaker – a device actuated by an electrical signal that produces sounds controlled by the electrical signal. The sounds produced are usually a reproduction of speech or music or other sound encoded in the electrical signal.

   l.   Music – a progressive combination of sounds, usually rhythmic, which in the opinion of the person producing or causing the sounds to be produced, and possibly others, is a pleasing artistic expression.

   m.   Musical Instrument – any device used in producing music.

   n.   Person – any individual, association, partnership, corporation, firm, association, trust, estate, private institution, group, or agency, or any legal successor, representative, agent or agency of the foregoing.

   o.   Public right of way – any street, avenue, boulevard, highway, sidewalk, alley or similar place that is owned or controlled by a governmental entity.

Real Property Boundary – An imaginary line along the ground surface and its vertical extension, separating the real property owned by one person from that owned by another person, but not including real property divisions within buildings. Public Rights of Way that divide the property of one owner are not real property boundaries.

Repetitive Impulsive Sound – any sound composed of individual sounds lasting less than a second (such as hammer blows, drumbeats, or gunshots) that are repeated continuously at a rate such that a sound level meter set at “fast” time-weighting will show changes in sound level greater than 10 dB between individual sounds, while the same meter set on “slow” time-weighting will show changes of less than 5 dB between the individual sounds.

r.   Residential and Rural Land Use – any tract or parcel of land used for residential, agricultural or forestall purposes. Residential use shall include private homes, apartments, hospitals, nursing homes, rest homes, hotels, motels, dormitories, and campgrounds.

Sound – An oscillation in pressure, particle displacement, or particle velocity, in a medium with internal forces that cause compression and rarefaction of that medium. The description of sound may include any characteristic of such sound, including duration, amplitude and frequency.

Sound Level Meter – an instrument for measuring sound levels meeting standards ANSI SI.4 and IEC 651, which for the purposes of this ordinance must include the A-weighting network, slow time-weighting, fast time weighting, and ability to measure the time-average sound level over a period as defined in the standards.

Sound Pressure Level – in decibels, 10 times the logarithm (to the base 10) of the ratio of the square of a sound pressure to the square of the reference sound pressure of 20 microPascals.

Speech – A meaningful combination of sounds produced by the human voice or a reproduction of such sound by a loudspeaker.

Time-Average Sound Level – The level of an equivalent steady sound that over a stated period for a stated location has the same sound energy as an actual sound that may be varying in level over the stated period.

Sec. 8-35.   Maximum Permissible Sound Levels and Prohibition
       Of Noise Disturbance

a.   Prohibition of Noise Disturbance – No person shall cause or allow the emission of sound across a real property boundary onto the property of another person that does any of the following:

Endangers or injures the safety or health of humans or animals.

Annoys or disturbs a reasonable person of normal sensitivities.

Endangers or injures personal or real property.

Is recognizable as music on a complainant’s residential
or rural land, whether produced by musical instruments
directly or by a loudspeaker, between the hours of
11:00 o’clock p.m. and 7:00 o’clock a.m.

Is understandable speech on a residential land use at a
distance of 20 feet or more inside the real property
boundary of the complainant property at any time.

b.   Maximum Permissible A-weighted Sound Levels – No person shall cause or allow the emission of sound across a real property boundary onto the property of another person such that any of the following conditions occur when the sound is measured in accordance with this Article.

The limits of Table A are exceeded by more than 10dB
at any time when measured with slow time weighting.

The limits of Table A are exceeded for more than 90
seconds continuously when measured with slow
time weighting.

The limits of Table A are exceeded by the time-average
sound level measured over a period of 15 minutes with
a sound level meter capable of measuring the time-average
sound level.

Table A. SOUND LEVELS IN DECIBELS BY LAND USE

Land use of        Residential   Residential   Commercial   Industrial
Measurement site   and Rural   and Rural

Time of day       10:00p.m.-   7:00a.m.-   Anytime   Anytime
           7:00a.m.   10:00p.m.

A-weighted Sound         55             60             65              70
Level, dB

c.   Repetitive Impulsive Sound - For any sound identified by the measuring officer as dominated by repetitive impulsive sound, the limit will be a time-average sound level for 15 minutes that is 10 dB less than the indicated limits in Table A, except when the measurement is made on an Industrial Land Use.

Sec. 8-36.   Proof of Source and Ambient Background Level

All individual sources of sound on a single parcel of real property shall be considered a single source. If the sound levels as measured exceed any appropriate level of Table A, and the measuring officer can clearly identify the dominant offending sound source, the measuring officer shall attempt to contact the operator of the sound source. If successful, the measuring officer shall inform the operator of the following facts and offer to make sound level measurements with the source stopped:

The sound source in question is in apparent violation of the ordinance, and

b.   The ordinance provides the opportunity for the owner/operator to demonstrate that the sound source in question is not the primary cause of the high sound levels and not in violation by ceasing operations to allow further measurements.

If the owner/operator ceases operation of the sound source, the enforcing officer shall measure the ambient background sound in the same manner and at the same location as the original measurements. If the ambient background sound so measured is within 3 dB of the original measurements, then there is no violation, and the owner/operator shall be informed so operations of the sound source may continue.

   If the owner/operator refuses the foregoing options, then he shall be deemed to be in violation of this Article without further measurement.

Sec. 8-37. Exemptions.

   The following are exempted from the coverage of this Article:

a.   Sound created by the operation of domestic power tools such as power lawn mowers, chain saws, weed eaters, etc. provided the operation of said equipment is limited between the hours of 6:00 o’clock a.m. and 9:00 o’clock p.m. and such equipment is operated with a standard muffler or sound dissipating devices.

b.   Sound generated by construction between the hours of 7:00 o’clock a.m. and 9:00 o’clock p.m.

c.   Sound generated by the operation of any governmental function.

d.   Radios, sirens, horns and bells on police, fire or other emergency response vehicles.

e.   Parades, fireworks or other special events or activities conducted either by permit issued by the County or in accordance with applicable law.

f.   Religious services, religious events or religious activities, including, but not limited to music, bells, chimes and organs which are a part of such religious activity.

g.   Sound amplifying equipment used at public parks or recreation fields provided the operation of such equipment has been approved by the appropriate county department.

h.   Non-commercial public speaking and public assembly activities conducted on any public right of way or public property in accordance with applicable law.

i.   Band performances or practices, athletic contests or practices and other school-sponsored activities on the grounds of public or private schools, provided that such activities have been authorized by school officials.

j.   Fire alarms and burglar alarms, prior to the giving of notice and a reasonable opportunity for the owner or tenant in possession of the premises served by any such alarm to turn off the alarm.

k.   Sound generated for the purpose of alerting persons to the existence of an emergency, or the emission of sound in the performance of emergency work.

l.   Activities for which the regulation of noise has been pre-empted by federal law.

m.   Religious or political gatherings and other activities protected by the First Amendment to the United States Constitution.

n.   The movement of aircraft or trains which is conducted in accordance with or pursuant to applicable federal laws and regulations.

o.   Sounds generated in connection with agriculture, including, but not limited to, animals and farm machinery.

p.   Sounds generated in connection with the management and harvest of timber.

q.   Sounds generated by companion animals.

r.   Sounds from motor vehicles when operated with legally sufficient mufflers, except as other provided in this Article.

s.         Hunting of live game and nuisance or predatory animals in accordance with applicable law.

Sec. 8-38. Enforcement.

   The Sheriff shall have primary responsibility for enforcing this ordinance and shall investigate and pursue possible violations of this ordinance. Criminal proceedings pursuant to this Article shall be initiated only by law enforcement personnel.

Sec. 8-39. Measurement Requirements.

   Instrumentation used for enforcement of this ordinance shall be designated by its manufacturer as meeting the precision requirements of IEC 651 or ANSI SI.4 for Type 1 or Type 2 sound level meters as defined in those standards. Except as otherwise allowed in this paragraph, all measurements shall be made using “slow” time-weighting. “Fast” time-weighting may be used to identify a repetitive impulsive sound. The time-average sound level may be measured with either a meter that samples the “slow” response level, or one that measures the time-average sound level directly. A windscreen approved by the manufacturer of the instrument shall be used on the microphone when making measurements. The instrument calibration shall be checked (and adjusted if necessary) using an external calibration device within at least one hour before the measurement, and checked again within one hour after the measurement. All measurements shall be made at a height of at least 4 feet from the ground. They shall be made at least 10 feet from any building, tree trunks, vehicles, or other obstruction other than the person making the measurement. Measurements may be made with the permission of the property owner on any property other than the property containing the suspected excessive sound source, and other than a public right of way. The data record shall contain the data, descriptions of the apparent source of the dominant noise and its apparent location, the location of the measurements, the approximate time of the measurements, and sufficient information to identify the instruments used. The measuring officer shall take care that measurements are not controlled by sound excepted by Section 7 of this ordinance. The Sheriff’s Department shall develop and document operating procedures for the guidance of its officers and agents in making measurements.

Sec. 8-40. Prohibited noise from motor vehicles.

   No person within the county shall:

a.   Operate or permit the use or operation of any radio receiving set or any tape player or any other device which produces, reproduces or amplifies sound in a motor vehicle in such a manner that the sound can be heard more than twenty-five (25) feet from the motor vehicle.

b.   Sound or permit the sounding of any horn, whistle or other device on or in any vehicle, except as a warning of danger.

Sec. 8-41. Penalties and violations.

a.   Any person who violates any provision of this article shall be guilty of a class 3 misdemeanor. Any person who commits a second or subsequent violation of this article within a twelve (12) month period shall be guilty of a class 2 misdemeanor.

b.   Each violation of any provision of this article shall constitute a separate offense, whether committed on the same or subsequent days.

c.   The person operating or controlling a noise source shall be guilty of any violation caused by that source. If such person cannot be determined, then any owner, tenant or resident physically present on the property where the violation is occurring is rebuttably presumed to be operating or controlling the noise source.

Sec. 8-42.   Other Remedies.

   No provision of this ordinance shall be construed to impair any common law or statutory cause of action or legal remedy of any person for injury or damage to person or property, arising from violation of this ordinance or arising from sound crossing a property boundary that either is exempted or does not violate this ordinance.

Sec. 8-43.   Severability.

   If any provision, clause, sentence or paragraph of this ordinance or the application thereof to any person or in any circumstance shall be held to be invalid, such invalidity shall not affect the validity of the other provisions or applications of this ordinance as a whole or of any part, sub-part, sentence, or clause thereof not held to be invalid, and to this end the provisions of this ordinance are hereby declared to be severable.

Sec. 8-44.   Effective Date.

   This ordinance shall become effective on June 30, 2005.

Concluding adoption, Mr. Harris asked what the procedures are for a Public Hearing when adopting an Emergency Ordinance.

Mr. Carter stated that the Emergency Ordinance is enforceable for sixty days and that the Board would advertise for a public hearing followed by a vote on the Ordinance.

Mr. Harris stated that he feel a little more comfortable, but not totally, since a Public Hearing will be conducted.

Mr. Harvey stated that the Emergency Ordinance is wrong and it is not the way county government should operate. Mr. Harvey expressed concern that the public was not notified.

Mr. Wood stated that he understands Mr. Harvey’s concerns, but noted that the Ordinance is comprehensive, and timing is an issue.

Concluding additional discussion, the Board of Supervisors authorized the Emergency Ordinance to be advertised for a Public Hearing on August 9, 2005, 7:30 p.m. as follows:

Re: Authorization to Advertise the Emergency Ordinance for the Control of Sound Crossing Outdoor Real Property Boundaries for a Public Hearing for the August 9, 2005 Meeting

On a motion by Ms. Brennan, seconded by Mr. Harris, with Ms. Brennan voting yes, Mr. Harris voting yes, Mr. Harvey voting no, Mr. Bruguiere voting yes, and Mr. Wood voting yes, the following Resolution was adopted:

BE IT RESOLVED, That the Nelson County Board of Supervisors does hereby authorize the advertisement of the Emergency Ordinance for the Control of Sound Crossing Outdoor Real Property Boundaries for a Public Hearing on August 9, 2005, 7:30 p.m.

Additionally, the Board passed a Resolution to Repeal Article II, Section 8-26 through 32 of the Code of the County of Nelson as follows:

Re: Repealing Article II, Section 8-26 through 32 of the Code of the County of Nelson

On a motion by Ms. Brennan, seconded by Mr. Bruguiere, with Ms. Brennan voting yes, Mr. Bruguiere voting yes, Mr. Harvey voting no, Mr. Harris voting yes, and Mr. Wood voting yes, the following Resolution was adopted:

BE IT RESOLVED, That the Nelson County Board of Supervisors does hereby repeal Article II, Section 8-26 through 32 of the Code of the County of Nelson.

Agenda Item Number III. Review of Zoning Ordinance

The Board of Supervisors continued the review of the proposed Zoning Ordinance as follows:

Corridor Overlay District

Supervisors Bruguiere and Harvey recommended deleting the Corridor Overlay District noting that it is too restrictive and invasive.

Ms. Brennan stated that the Corridor Overlay District will help a developer come up with a good project that fits an area.

Mr. Harris stated that he would like to change the review sections of the District.

Mr. Wood stated that the District is similar to the Agricultural/Forestal District and noted that the County is not telling anyone that they have to do this, but rather making it available. Mr. Wood recommended coming back to the District at the end of the review.

Historic Preservation Overlay District

The Board of Supervisors deleted sections relating to the review of the color of buildings and added a requirement that the application include the signatures of all property owners.

Concluding discussion on the Historic Preservation Overlay District, the Board of Supervisors scheduled Zoning Work Sessions for Wednesday, July 6th at 6:00 p.m., and Tuesday, July 12th at 10:00 a.m.

Agenda Item Number IV. Adjournment

Re: Continuance of the June 30, 2005 Meeting to July 6, 2005, 6:00 P.M.

On a motion duly made by Ms. Brennan, seconded by Mr. Harvey, with Ms. Brennan voting yes, Mr. Harvey voting yes, Mr. Bruguiere voting yes, Mr. Harris voting yes, and Mr. Wood voting yes, the following Resolution was adopted:

BE IT RESOLVED, That the Nelson County Board of Supervisors does hereby continue the June 30, 2005 Meeting to July 6, 2005, 6:00 p.m.

____________________________________, Chair