Introduction

The City Council recently directed staff to look at ways to regulate the loading and unloading of trucks during the early morning/late night hours in residentially adjacent commercial and industrial properties.  The City�s zoning code already regulates late night operations in residentially adjacent commercial and industrial zones.  These zoning code provisions, as set forth below, allow the operation of late night businesses and operations with either a conditional or administrative use permit,  They also prohibit loading and unloading of vehicles while the engine or motor is running.  They further prohibit the operation of noise generating equipment, including refrigeration units between the hours of midnight and 6 a.m.

These late night operations provisions are enforced by the License and Code Division on a complaint-made basis.  That division has received very few complaints about late night operations for over three years, and all have been resolved either through existing code provisions, or through enforcement of the businesses� CUP or planned development.   We do understand that at least one Councilmember has received a complaint. We are not aware of the specific facts or circumstances of that complaint. 

The zoning provisions apply only to businesses which were established or which commenced their late night operations after December 26, 1998, the date on which these regulations became effective.  We are not aware of nor have we received any complaints of violations from any of the businesses which were in operation before these provisions took effect.  We would not, accordingly recommend any code changes at this time.  We would recommend that the Council instruct staff to monitor this matter for the next six months to determine whether or not we have violations of these provisions and if so, whether our existing provisions adequately allow for enforcement.

Regulations for Residentially Adjacent Commercial and Industrial Properties

BMC �� 31-1150 -1154 contain provisions designed to ensure that commercial and industrial uses do not cause adverse impacts on adjacent properties or residents due to customer and employee parking demand, traffic generation, noise, light, litter or the  cumulative impacts of such uses.  These provisions apply to all residentially adjacent industrial and commercially zoned  properties and commercial and industrial uses located in a residential zone if the use is within 150 feet of any other residentially zoned property.  They include restrictions on the operation of Late Night Businesses, exterior speakers, public address systems, light and glare, mechanical venting, and refuse bin lids.

Regulations Relating to Late Night Businesses and Operations

The historical background of these regulations is somewhat interesting.  The Late Night Business regulations were enacted in 1996 in response to a number of problems that we were having with certain late night businesses and operations in residentially adjacent zones.  Tommy�s was a particularly problematic location and sued the City when they were denied a Conditional Use Permit to operate between midnight and 6 a.m.  The City successfully defended that lawsuit and we have received no challenges since that time.

BMC �� 31-203 defines �Late Night Business� to mean a commercial or industrial use that receives and/or is open to patrons at any time during late night hours, which are defined as the time between midnight and 6:00 a.m.  �Late Night Operations� means a commercial or industrial use that operates noise-generating equipment, such as vehicles, machinery, pumps, refrigeration units on trucks, motorized cleaning equipment, exposed to the exterior at any time during late night hours.  �Late night operations� does not include deliveries if the vehicles and other motors are not in operation during the delivery. 

BMC �� 31-1151 and 31-1152 prohibit the operation of a Late Night Business unless a Conditional Use Permit is first obtained.  BMC � 31-1152 prohibits businesses from engaging in Late Night Operations without first obtaining an Administrative Use Permit.  These provisions, which are in the Zoning Code  went into effect in December of 1998, and are applicable only to those businesses which were newly established after that date or which began late night operations after that date.  Although this would appear to create a �loophole� for businesses or operations which were existing before that date, we are not aware of any businesses which are conducting late night operations in violation of these sections, regardless of their date of commencement.

Noise Regulation

The BMC also regulates unnecessary, excessive, and annoying sounds when they reach certain levels and frequencies (BMC sec. 21-201) and/or come from certain types of sources (BMC sec. 21-207 � 21-224).  These provisions, however, as currently drafted, would not operate to regulate the late night loading and unloading of vehicles, however, since the base ambient noise thresholds would rarely if ever be met. 

The Noise Ordinance is currently under extensive review by several departments and is scheduled to be brought before the Council with some significant revisions within the next six months. 

Recommendation

The Community Development Department and the City Attorney�s office would recommend that the Council instruct staff to monitor late night operations in residentially adjacent commercial and industrial zones and to report to Council in six months about any complaints or enforcement efforts pertaining thereto.  We would also recommend that the Council refer any complaints they have received or do receive to the License and Code Division for appropriate follow up.

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