STATE OF NEW JERSEY TOWNSHIP OF WYCKOFF v. SCOTT E. PANKOW

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2846-07T42846-07T4

STATE OF NEW JERSEY

(TOWNSHIP OF WYCKOFF),

Plaintiff-Appellant,

v.

SCOTT E. PANKOW,

Defendant-Respondent.

________________________________________________________________

 

Argued September 29, 2008 - Decided

Before Judges Carchman, R. B. Coleman

and Simonelli.

On appeal from the Superior Court of New

Jersey, Law Division, Bergen County, Municipal

Docket No. 07-73.

Robert E. Landel argued the cause for

appellant (Landel, Bernstein & Kalosieh,

attorneys; Mr. Landel, on the brief).

George F. Surgent argued the cause for

respondent (George F. Surgent, attorney;

Eric Costa, on the brief).

PER CURIAM

The Township of Wyckoff appeals from a January 3, 2008 judgment of the Law Division, declaring its noise ordinance, Township of Wyckoff, Ordinance 143-2 (the Ordinance), unconstitutional. On a trial de novo, among other things, the judgment reversed a judgment of conviction entered in the Wyckoff Municipal Court, entered a finding of not guilty, dismissed the complaints against defendant Scott E. Pankow and ordered the return of fines and costs previously paid by defendant. We reverse, reinstate the convictions and order the fines and costs previously imposed to be paid.

We briefly describe the unusual facts and procedural history of this matter. Defendant, a Wyckoff resident, owns two dirt bikes that he operated on his property. Following complaints by one of defendant's neighbor, Deborah Coleman, the Township issued two municipal complaints against defendant for violating the Ordinance. On June 8, 2006, the Wyckoff Municipal Prosecutor and defendant reached a plea agreement, later memorialized by a consent order, which provided in relevant part:

2. Defendant, Scott E. Pankow shall be prohibited from operating or allowing any other individual to operate any motorcycle, motorized bike, mini bike, dirt bike, all terrain vehicle (ATV) or any similar motorized bicycle at any time on the property known as 367 Clover Lane, Wyckoff, New Jersey, which is owned and occupied by Mr. Pankow.

. . . .

4. In the event . . . Scott Pankow violates any provision of Paragraph 2 of this Order in addition to any other charges that the [Defendant] may be subject to, such violation shall constitute a violation of a Judicial Order and subject . . . Scott Pankow to additional charges of criminal contempt for violating a Judicial Order pursuant to N.J.S.A. 2C:29-9, which constitutes a crime of the fourth degree.

The consent order did not resolve the ongoing dispute. On March 9, 2007, four additional summonses were issued against defendant charging him with violating the Ordinance on June 10, July 16, July 23, August 6, August 7, August 21, August 28 and September 10, 2006. He was also charged with a criminal offense - fourth-degree contempt, N.J.S.A. 2C:29-9A - which the Bergen County Prosecutor's office later downgraded to disorderly conduct, N.J.S.A. 2C:33-2A1.

The facts giving rise to the four new complaints revealed that on June 10, 2006, defendant and his son removed both dirt bikes from defendant's garage, turned them on and revved their engines almost continuously for approximately fifteen to twenty minutes. A neighbor, Robert Moritz, asked defendant to turn off the bikes. When defendant refused to do so, Ms. Coleman called the police. According to another neighbor, Eric Webber, defendant revved the engine several times to the point that it sounded unusual, and defendant did so while looking at Ms. Coleman and smiling. Ms. Coleman noted that when inside her home, she could hear the dirt bikes make "a rumbling sound through [her] home."

In mid-July, defendant revved the bike engine for approximately fifteen minutes, and on July 23, 2006, defendant revved the bike's engine for about twenty minutes, while looking at Ms. Coleman and smirking.

The conduct continued as on August 6, 7, 21 and 28 and September 10, 2006, defendant revved the engines of either one or both of the dirt bikes for about fifteen minutes and on one occasion, revved one bike on his driveway for about thirty minutes.

Defendant denied riding his bikes on his property and explained that he started the bikes only for the purpose of maintaining them, as instructed on their manuals. He denied running their engines to aggravate anyone. Judge Teschon, the municipal judge, found the neighbor-witnesses to be credible and found defendant's testimony not credible. The judge concluded that defendant revved his dirt bike engines in retaliation for Ms. Coleman's complaints. To become familiar with their sound, Judge Teschon watched a videotape of defendant's dirt bikes operating.

The municipal judge found that defendant violated both the consent order and the Ordinance because the noises produced were unnecessary and done to annoy. He further found the Ordinance constitutional as applied to defendant.

On the de novo appeal, the Law Division judge found that the Ordinance was "void for vagueness," and that "[t]here should be a reasonable time," "a reasonable duration" and "some delineation of decibels." Considering the language of the Ordinance, the judge stated that it did not know how "we define 'annoy' or 'disturb' or 'endanger.'" He further found that the statute does not set (1) "the decibel level to measure the volume of the noise"; (2) "a length of time . . . to when it becomes unreasonable"; and (3) "[t]he hours of operation." Relying exclusively on an unpublished New York County District Court opinion, People v. Pfluger, 2 004 NY Slip Op. 51770U (N.Y. Dist. Ct. 2004), and with scant reference to the numerous New Jersey Appellate Division decisions that have addressed the issue, the judge declared the Ordinance unconstitutional on its face. This appeal followed.

We commence our discussion by restating certain basic principles that inform our analysis. On appeal, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366, 378 (1995). Our review of a constitutional challenge to a municipal ordinance is de novo. State v. Clarksburg Inn, 375 N.J. Super. 624, 631 (App. Div. 2005).

More specifically, "[a] municipal ordinance under review by a court enjoys a presumption of validity and reasonableness," and is "liberally construed in favor of the municipality." Id. at 632. "It is further presumed that the legislating authorities promulgating the ordinance acted with existing constitutional law in mind and intended the ordinance to function in a constitutional manner." State v. Holland, 132 N.J. Super. 17, 23 (App. Div. 1975). An ordinance "may be stricken down only if the presumption of validity is overcome by a clear showing that it is arbitrary or unreasonable." Bynum v. Mayor & Township Committee, 181 N.J. Super. 2, 7 (App. Div. 1981) (citing Schmidt v. Newark Bd. of Adj., 9 N.J. 405, 416 (1952)). Even if the ordinance "may be open to a construction which would render it unconstitutional or permit its unconstitutional application, it is the duty of a reviewing court to so construe the ordinance as to render it constitutional if it is reasonably susceptible to such construction." Holland, supra, 132 N.J. Super. at 23 (citing State v. Profaci, 56 N.J. 346 (1970)). With these principles in mind, we examine the Ordinance.

The Ordinance provides:

It shall be unlawful for any person to make, continue or cause to be made or continued or for any property owner to permit or allow to emanate from his property any loud, unnecessary or unusual noise or any noise which either annoys, disturbs, injures or endangers the comfort, repose, health, peace or safety of others within the limits of the township.

Noise restrictions including ordinances and statutes have been the subject of judicial discussion and review since the early Twentieth-Century. See Holland, supra, 132 N.J. Super. at 25-26 (collecting the many New Jersey cases that have addressed the issue dating back to 1908). What emerges from Holland is that we have recognized that legislation regarding noise deals with a subject matter that, by its very nature, "renders specific and precise definitions of prohibited conduct difficult to formulate." Holland, supra, 132 N.J. Super. at 23. "Whether a given noise disturbs the public peace depends upon the circumstances of the particular case, and it is impractical to spell out rigid legislative criteria." Ibid. As Chief Justice Weintraub succinctly stated:

Finally defendant says the statute is void for vagueness because it does not spell out the degree of noise or the details of a disorder which will offend. Of course, the statute does not do so in specific terms, and it may be doubted that the ingenuity of man could meet that demand if the Constitution made it. But the Constitution does not insist upon the impossible. It asks only what the subject will reasonably permit, and hence if there is a public interest in need of protection, due process does not stand in the way merely because the subject defies minute prescription.

[State v. Smith, 46 N.J. 510, 518 (1966).]

In the present case, the Law Division judge found the Ordinance vague because it does not (1) define the terms "annoy," "disturb" and "endanger"; (2) "set the decibel level to measure the volume of the noise; (3) "set a length of time" as to when "it becomes unreasonable"; and (4) limit the hours of noise restrictions.

In Clarksburg Inn, supra; State v. Friedman, 304 N.J. Super. 1 (App. Div. 1997); State v. Powell, 250 N.J. Super. 1 (App. Div. 1991); Bynum, supra; and Holland, supra, we reviewed and upheld the constitutionality of noise ordinances that were very similar, in some cases identical in language, to the Ordinance. See Clarksburg Inn, supra, 375 N.J. Super. at 634-37 (discussing Friedman, Powell, Bynum and Holland and noting the similarity of the noise ordinances being challenged as unconstitutionally vague but being upheld in each case). He did not require that a noise ordinance (1) set a length of time as to when the noise becomes unreasonable; or (2) limit the hours for the noise restrictions; we specifically rejected the view that a decibel level is "a prerequisite for a noise ordinance to pass constitutional muster," observing that "[i]t is not the Court's role to require the choice of one method over another when as here the present language in the Ordinance is neither vague nor ambiguous and reasonably notifies the public of the conduct it proscribes." Clarksburg Inn, supra, 375 N.J. Super. at 638-39.

The Law Division judge made no mention of the New Jersey case law (other than an oblique reference to his disagreement with the analysis in Friedman) but relied on an unreported New York trial court opinion, Pfluger, 2 004 NY Slip Op. 5177OU, that not only is improperly cited as authority, see R. 1:36-3 (stating that "no unpublished opinion shall constitute precedent or be binding upon any court"), but holds that a portion of a Huntington [Long Island] Town Code that bears no resemblance or relationship to the language of the Ordinance, is unconstitutional.

In sum, the reliance on Pfluger was inappropriate and misplaced as authority for the result reached by the Law Division judge. We need not dwell on the obligation of a trial judge to follow the decisions of both the Supreme Court and the Appellate Division as that principle is inviolate. Severns v. Concord Chemical Co., Inc., 373 N.J. Super. 368, 374 (Law Div. 2004) (observing that "[t]rial courts are bound by decision of the Appellate Division and, of course, by decisions of the Supreme Court that apply to the facts in the case under consideration"); cf. Tomaino v. Burman, 364 N.J. Super. 224, 237 (App. Div. 2003) (noting that trial judges have the responsibility of complying with pronouncements of an Appellate Court). Followed here, our prior holdings in Clarksburg, Friedman, Powell, Bynum, Holland, lead us to conclude that the Ordinance is constitutional on its face.

As to the merits of the dispute and the constitutional application of the Ordinance to defendant, the municipal court judge thoughtfully and thoroughly concluded that defendant violated the consent order, violated the Ordinance, and as applied, the Ordinance was constitutional. We are satisfied that his oral opinion of August 2, 2007, adequately addressed those extant issues. We reverse the decision of the Law Division and reinstate the conviction as well as the sanctions imposed.

Reversed.

 

Although captioned "The State of New Jersey (Township of Wyckoff), for ease of reference, we refer to the Township as the true party in interest as the issue in dispute involves its municipal ordinance.

(continued)

(continued)

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A-2846-07T4

December 5, 2008