CHRISTOPHER DiLEONE v. TOWNSHIP OF MAHWAH, a municipal body politic governed and organized under the laws of the State of New Jersey, MAYOR OF THE TOWNSHIP OF MAHWAH, and COUNCIL OF THE TOWNSHIP OF MAHWAH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1204-08T11204-08T1

CHRISTOPHER DiLEONE and DAWN

DiLEONE, husband and wife, and

EMILIOS KOKKINOS and DR. VASILIKI

SAITAS KOKKINOS, husband and wife,

Plaintiffs-Appellants,

v.

TOWNSHIP OF MAHWAH, a municipal

body politic governed and

organized under the laws of the

State of New Jersey, MAYOR OF THE

TOWNSHIP OF MAHWAH, and COUNCIL

OF THE TOWNSHIP OF MAHWAH,

Defendants-Respondents.

_____________________________________

 

Argued November 17, 2009 - Decided

Before Judges Wefing, Grall and LeWinn.

On appeal from Superior Court of New Jersey,

Chancery Division, Bergen County, No. C-138-07.

Charles X. Gormally argued the cause for appellants

(Brach Eichler, attorneys; Mr. Gormally, of

counsel and on the briefs; David J. Klein, on

the briefs).

Terry Paul Bottinelli argued the cause for

respondents (Herten, Burstein, Sheridan,

Cevasco, Bottinelli, Litt & Harz, attorneys;

Mr. Bottinelli, of counsel; Thomas S. McGuire,

on the brief).

PER CURIAM

In April 2007, plaintiffs filed suit against the Township of Mahwah and its mayor and council, seeking to restrain the Township from using sirens to alert volunteer firemen that their services were needed. Plaintiffs asserted that the use of the sirens constituted an actionable nuisance. They also contended the sound of the sirens was noise pollution and actionable under N.J.S.A. 2A:35A-4 of New Jersey's Environmental Rights Act, N.J.S.A. 2A:35A-1 to -14. After a three-day bench trial, the court entered judgment for defendants, and plaintiffs have appealed. After reviewing the record in light of the contentions advanced on appeal, we affirm.

I

Mahwah, which covers approximately twenty-seven square miles, is the largest municipality in Bergen County. It has a full-time population of approximately 26,000; during working hours, however, that swells to approximately 45,000. Portions of the township abut the Ramapo Mountains; the highest point in the township is approximately 1100 feet above sea level.

Mahwah does not have a paid fire department. Rather, it relies upon an all-volunteer squad of approximately 125 active volunteers, who are divided among five fire stations spaced at various locations throughout the township. Each of the five stations is responsible for a particular zone within the township.

For at least eighty years, Mahwah has used fire sirens to summon the volunteers to their respective stations. Sirens are located at each of the five stations. Three other sirens are located at other sites, not connected to a station. The township also issues pagers to the volunteers as an additional method of notification. Both the sirens and the pagers are activated by the police department.

Not every station is alerted of every emergency. Which sirens will sound depends upon the location and nature of the emergency and the time of its occurrence. For example, during daytime hours, there are more fire calls but fewer volunteer firefighters available to respond. Therefore, during daytime, work week hours, two fire stations will be called for any given emergency. Multiple fire stations also will be called for a variety of structural fires.

In addition, in zone four, where there are concerns about the insufficiency of pager coverage, sirens sound no matter the hour, no matter what type of call. However, in zones one, two and three, sirens sound no matter the hour only for calls reporting confirmed fire events; at night, between 7:00 p.m. and 7:00 a.m., the sirens do not sound merely for automatically activated fire alarms. This eliminates a large number of sirens overnight because the most frequent fire emergency is for an automatically generated fire alarm, for example, a smoke detector, carbon monoxide detector, or water flow alarm from a business.

Plaintiffs Christopher and Dawn DiLeone reside in Mahwah, with their two children, ages three and ten at the time of the trial. They purchased their home in 1999, knowing that it was near firehouse three, but not having heard the siren.

The township's records indicate that in 2006, the siren at firehouse three sounded ninety-nine times during the day and thirty-one times at night. In 2007, the siren sounded fifty-seven times during the day and twenty-eight times at night. And, in the first four months of 2008, the siren sounded twenty-one times during the day, and four times at night.

Plaintiffs Emilios and Dr. Vasiliki Saitas Kokkinos reside in Mahwah, with their at the time of trial seven-year-old son and Emilios's parents. Emilios moved into the home in 1995, Vasiliki in 1998, knowing it was across the street from firehouse two, but not knowing the sound of the siren, its frequency, or its effects.

The township's records indicate that in 2006, the siren at firehouse two sounded 393 times during the day and 78 times at night. In 2007, the siren sounded 325 times during the day, and 66 times at night. And, in the first four months of 2008, the siren sounded eighty-three times during the day, and twenty times at night.

Plaintiffs contend that the sirens are unreasonably loud. Emilios Kokkinos, who works from home, testified that the noise from the siren makes it difficult for him to conduct business, particularly telephone calls. And, both sets of plaintiffs testified that the sirens cause them ear pain, scare their children, disturb family members' sleep, disturb daily activities, prevent them from using their outdoor living spaces, and even prevent some friends and family members from visiting them.

Plaintiffs' expert in environmental engineering, Edward Potenta, opined that the township's fire sirens reached decibel levels exceeding 100. These decibel levels exceeded a variety of state and federal noise level standards, and could be painful and cause hearing damage. Potenta admitted, however, that the state and federal noise standards he cited were not applicable to fire sirens. Emergency sirens are exempt from New Jersey's sound level standards, and federal law does not establish any standards for how much noise may be emitted from sirens. Moreover, the township's sirens were consistent with the Federal Emergency Management Act, which addresses the location of sirens and suggests a limit of 123 decibels for sirens adjoining residential structures.

Plaintiffs repeatedly complained to the township about noise from the sirens, particularly to the mayor and the police chief. However, they obtained no relief other than the limiting of overnight sirens to reported fires, and excluding automated calls. That change was made on a temporary basis in 2006, and on a permanent basis in the spring of 2007. For a period of time the township also experimented with not sounding sirens for automatic alarms even during the daytime. However, problems were experienced in obtaining a sufficient turnout of firefighters; therefore, the policy was limited only to overnight hours.

In addition to contending that the sirens were too loud, plaintiffs also contended that the sirens were unnecessary. They presented the testimony of Roger Boyell, an expert in electronics transmissions, who opined that there was no need for the sirens. The omni-directional antenna on Stag Hill was capable of transmitting data for up to twenty miles, absent some obstruction created by the terrain, topography, or a building. And, if there were areas in town with no pager service, or limited service, that problem could be alleviated by replacing the omni-directional antenna with a directional antenna, to concentrate power to the south, covering most of Mahwah except for a few locations, including the area west of the tower. This "fix" would be relatively simple and inexpensive.

Alternatively, he opined, the township could install a repeater, which would receive the signal from Stag Hill and "repeat it a few seconds later so that any local pagers would get a strong signal from the immediate vicinity." This "fix" also would be relatively simple and inexpensive.

Boyell admitted, however, that his recommendations were made based upon an analysis he conducted purely at the theoretical level. He had never visited Mahwah, nor had he ever spoken to any relevant officials. He was not familiar with any of the transmission problems experienced in the township, other than through anecdotal reports, nor was he aware of any problems experienced with the electronics devices used. He did not know how many governmental entities utilized the Stag Hill tower, whether the tower was full to capacity, or whether the owner of the tower would permit any changes. He had not performed any tests to establish that the suggestions he made would work. And, he did not know whether any of the existing repeaters in Mahwah were applicable to the pagers, which provided only one-way communications; he believed that the existing repeaters were only for two-way radio communications.

Plaintiffs also relied upon testimony from police chief James Batelli, who had been asked by the mayor to consider the reliability of pagers. Batelli believed that sirens were an ineffective notification system that could be eliminated, with the use of pagers sufficient to protect the public safety, and he informed plaintiffs and the mayor of that belief.

Batelli admitted that sirens should be activated for serious, life-threatening situations, such as calls for mutual aid, hazardous materials, and confirmed fires. However, he believed that there are only approximately eight calls of confirmed fires per year.

Police Sergeant Stuart Blank, who was responsible for the dispatch of police, emergency service (EMS) personnel, and volunteer firefighters, was less certain than Batelli that the pagers would be sufficient, standing alone, to dispatch the fire department. Blank testified that EMS personnel, who are volunteers on-call for specified hours, are notified about calls solely through their portable radios or pagers. However, sometimes the first EMS unit notified does not respond to its page. On those occasions, multiple pages have to be sent out in order for an alternate unit to respond, or for a mutual aid community to respond.

Furthermore, Blank and Batelli, as well as defense witnesses, admitted that the pagers suffered from both operational and human errors. There had been recalls of the pagers by the manufacturer. There were dead spots in town where the pagers did not work, and the pagers did not work in or around certain structures. Indeed, due to concerns over coverage, particularly in the area serviced by fire station four, adjustments had been made to lengthen the pager sound in order to increase the chance of a successful transmission. However, problems remained.

Moreover, the pagers sometimes needed repair and there were no spare pagers to be used during the repairs. A volunteer simply might forget to turn the pager on, or charge it. Or, a volunteer might not carry the pager with him or her at all times.

Plaintiffs claimed, however, that there were systems the township could use in order to back-up the pager system, which would be more effective than sirens. For example, plaintiffs contended that firefighters could provide their cell phone numbers to the police department, so that they could be alerted to calls by text message. However, witnesses testified to problems the township had experienced with cell service in general, and text messaging in particular. Moreover, it was unknown whether all firefighters had cell phones, and it would be costly for the township to provide them.

Plaintiffs also cited as an option the township's reverse 911 system, whereby telephone calls could be automatically generated to notify residents of incidents. By the time of the trial, however, the system had been used to notify residents of water main breaks, but not emergencies. And, the fire department had chosen not to participate in the system due to concerns about its reliability. Moreover, the reverse 911 system required the creation of a specific message every time it was utilized; the messages were not automated, and this could cause some delay in transmission.

Nevertheless, plaintiffs claimed that the sirens were ineffective even as a back-up to the pagers. The sirens were not always maintained in working order, and they were not audible throughout the entire town. Moreover, plaintiffs noted that a number of jurisdictions within Bergen County had stopped using sirens. Defendants countered, however, that some of those towns had paid fire departments or significantly different topography than Mahwah, and there were many more towns in the county that continued to use sirens.

In fact, the township had investigated a variety of new technologies to replace the sirens, but there were fiscal limitations on the township's ability to purchase new systems, and there were no guarantees that those systems would be substantial improvements over the current technology. For example, an "umbrella system" was considered to improve radio and pager transmissions; it would involve constructing multiple transmitters in the town, and a computer would decide the best method to send out any given alert. However, the cost was approximately $1 million, and the vendor could not guarantee full coverage.

The township also considered employing a full-time paid fire department, which would eliminate the need for the sirens. However, the estimated annual cost of $6 to $8 million was out of reach.

Ultimately, after considering a variety of relevant factors, including plaintiffs' concerns and the divergent opinions of the police and fire chiefs as to the necessity of the sirens, the mayor determined that the sirens should be maintained, albeit with limitations on the length of the siren sound, and restrictions on overnight usage. Among the most significant factors in the mayor's decision-making were the reliability problems experienced with the pagers, and the fact that the firefighters are all volunteers, not stationed at a firehouse for specific hours of the day, making it important for the public safety, as well as the firefighters' safety, to maximize their ability to respond to any emergency. However, the mayor remained willing to reconsider his position and move to notification based purely on electronic devices if the technology improved.

Finally, defendants noted that the sirens served purposes other than the notification of firefighters. They alerted drivers in the area that there may be emergency responders on the road. They alerted the person who requested assistance that help was on the way. And, they helped prevent accidents involving fire trucks and the children who attended school near the firehouses.

II

An appellate court will not disturb the factual findings and legal conclusions of the trial judge unless they are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). "That the case may be a close one or that the trial court decided all evidence or inference conflicts in favor of one side has no special effect." State v. Johnson, 42 N.J. 146, 162 (1964).

"The rationale underlying that limited scope of appellate review is that a trial judge's findings are substantially influenced by his or her opportunity to hear and see the witnesses and to get a 'feel' for the case that the reviewing court can not enjoy." Twp. of W. Windsor v. Nierenberg, 150 N.J. 111, 132 (1997) (citation omitted). Thus, credibility determinations are entitled to particular deference, because the trial judge has a better perspective to evaluate the veracity of witnesses. Id. at 132-33.

A

In order to obtain a permanent injunction enjoining the sirens, plaintiffs were obligated to establish the existence of a nuisance by clear and convincing evidence. See, e.g., Dolan v. DeCapua, 16 N.J. 599, 614 (1954); Benton v. Kernan, 130 N.J. Eq. 193, 198 (E. & A. 1941); Subcarrier Commc'ns, Inc., v. Day, 299 N.J. Super. 634, 639 (App. Div. 1997). Noise is recognized as a potential source of a nuisance, subject to injunctive relief. See, e.g., Twp. of Hanover v. Town of Morristown, 108 N.J. Super. 461, 469, 485 (Ch. Div. 1969), aff'd, 121 N.J. Super. 536 (App. Div. 1972), certif. denied, 62 N.J. 427 (1973). See also Sheppard v. Twp. of Frankford, 261 N.J. Super. 5, 9 (App. Div. 1992) ("Permanent injunctive relief is an appropriate remedy to abate a continuing nuisance."); Rose v. Chaikin, 187 N.J. Super. 210, 216-17 (Ch. Div. 1982) (noise, standing alone, may constitute an actionable private nuisance). If the court found a nuisance, "[w]ithin very broad limits, [it would have been] free to adjust the interests of the plaintiffs, the defendants and the public by devising an individually tailored remedy to fit the particular case." Hanover, supra, 108 N.J. Super. at 487. See also Sheppard, supra, 261 N.J. Super. at 9-10 (whether to grant injunctive relief is within court's discretion).

B

The law recognizes both public and private nuisances. Borough of Cresskill v. Borough of Dumont, 28 N.J. Super. 26, 38 (Law Div. 1953), aff'd, 15 N.J. 238 (1954); Restatement (Second) of Torts ("Restatement") 821A, 821B, 821D (1979). A public nuisance is defined as follows:

(1) A public nuisance is an unreasonable interference with a right common to the general public.

(2) Circumstances that may sustain a holding that an interference with a public right is unreasonable include the following:

(a) Whether the conduct involves a significant interference with the public health, the public safety, the public peace, the public comfort or the public convenience, or

(b) whether the conduct is proscribed by a statute, ordinance or administrative regulation, or

(c) whether the conduct is of a continuing nature or has produced a permanent or long-lasting effect, and, as the actor knows or has reason to know, has a significant effect upon the public right.

[Restatement, 821B.]

An individual may sue for damages from, or enjoinment of a public nuisance only if he or she has "suffered harm of a kind different from that suffered by other members of the public . . . ." Restatement, 821C(1). Accord In re Lead Paint Litigation, 191 N.J. 405, 422-29 (2007) (discussing tort of public nuisance); Twp. of Howell v. Waste Disposal, Inc., 207 N.J. Super. 80, 99 (App. Div. 1986) ("a public nuisance is abatable only by a suit brought by the Attorney General on behalf of the State or by an individual who sustains special damage over and above that suffered by the general public").

By contrast:

The essence of a private nuisance is an unreasonable interference with the use and enjoyment of land. . . . Litigation of this type usually deals with the conflicting interests of property owners and the question of the reasonableness of the defendant's mode of use of his land. The process of adjudication requires recognition of the reciprocal right of each owner to reasonable use, and a balancing of the conflicting interests. The utility of the defendant's conduct must be weighed against the quantum of harm to the plaintiff. The question is not simply whether a person is annoyed or disturbed, but whether the annoyance or disturbance arises from an unreasonable use of the neighbor's land or operation of his business. Prosser, Torts (2d ed. 1955), 410. As the Court of Appeals of Ohio put it in Antonik v. Chamberlain, 81 Ohio App. 465, 78 N.E.2d 752, 759 (1947):

"The law of nuisance plays between two antithetical extremes: The principle that every person is entitled to use his property for any purpose that he sees fit, and the opposing principle that everyone is bound to use his property in such a manner as not to injure the property or rights of his neighbor."

[Sans v. Ramsey Golf & Country Club, Inc., 29 N.J. 438, 448-49 (1959).]

See also Restatement 821D, 821F, 822-831 (defining private nuisance and describing elements of such a claim). One has standing to pursue individual relief from a private nuisance based solely upon one's status as a landowner. Restatement, 821E.

"The fact that the plaintiff has acquired or improved his land after a nuisance interfering with it has come into existence is not in itself sufficient to bar his action, but it is a factor to be considered in determining whether the nuisance is actionable." Restatement, 840D. See also Lyons v. Twp. of Wayne, 185 N.J. 426, 437 n.3 (2005) ("New Jersey courts have considered coming to the nuisance as a factor in determining whether an actionable nuisance exists," but the Supreme Court has not addressed that question); Associated Metals & Minerals Corp. v. Dixon Chem. & Research, Inc., 82 N.J. Super. 281, 306 (App. Div.) (moving to a nuisance is not a defense), certif. denied, 42 N.J. 501 (1964).

Finally, a nuisance action may be brought against a public entity. However, the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3, applies. Posey v. Bordentown Sewerage Auth., 171 N.J. 172, 185-86 (2002); Russo Farms, Inc. v. Vineland Bd. of Educ., 144 N.J. 84, 97-98 (1996); Birchwood Lakes Colony Club, Inc. v. Borough of Medford Lakes, 90 N.J. 582, 587, 593-96 (1982). This means that the TCA's "palpably unreasonable" standard applies to the defendants' actions. Birchwood Lakes, supra, 90 N.J. at 594, 596.

C

A similar claim was presented in Malhame v. Borough of Demarest, 162 N.J. Super. 248 (Law Div. 1978), appeal dismissed, 174 N.J. Super. 28 (App. Div. 1980). The plaintiffs in that matter also asserted a claim for nuisance, based on the borough's use of sirens to summon its volunteer firemen. Id. at 251. The court concluded that the plaintiffs' nuisance claim failed because they did not prove that it was under all circumstances unreasonable to use the sirens. Id. at 263-66. The court balanced the needs of the community against the needs of the plaintiffs and weighed the utility of the sirens against the harm experienced by the plaintiffs. The court found that an effective fire alarm system was essential to public safety, and the alternative technologies were insufficient: beepers were unreliable, and plectron radios were effective only when the fire fighters were home. Id. at 263-64. Therefore, the mayor and council had acted reasonably in balancing the public need against the injury to the plaintiffs, and choosing to maintain the existing siren system. Id. at 264, 266-67. Moreover, the plaintiffs' other suggested alternative, a reduction in the decibel level of the existing sirens and installation of additional sirens with a lower decibel level, would merely transfer the nuisance to another group of residents. Id. at 264-66.

Plaintiffs in the present matter also failed to establish the second element of their nuisance claim, unreasonableness of the sirens under all circumstances, by clear and convincing evidence.

The trial court found that the pager system suffers from technological problems, and from user errors. Options to improve pager functioning were not proven, and the trial court did not consider plaintiffs' expert Boyell credible on this point. The sirens serve as an effective back-up system to the pager system, and other available back-up technologies, such as reverse-911 and text messaging, were not proven to be viable alternatives. And, a paid fire department was prohibitively expensive. Therefore, the municipality did not act in a palpably unreasonable manner in maintaining the siren system, with the limitations it had instituted. These findings and conclusions are amply supported by the record. We see no basis to overturn them.

D

We also reject plaintiffs' contention that the trial court erred when it dismissed their claim under the Environmental Rights Act ("ERA"), N.J.S.A. 2A:35A-1 to -14.

In passing the ERA, the Legislature found that "the integrity of the State's environment is continually threatened by pollution, impairment and destruction, that every person has a substantial interest in minimizing this condition, and that it is therefore in the public interest to enable ready access to the courts for the remedy of such abuses." N.J.S.A. 2A:35A-2.

The ERA defines pollution to include "excessive noise." N.J.S.A. 2A:35A-3(b). It provides for a private right of action to abate pollution.

a. Any person may commence a civil action in a court of competent jurisdiction against any other person alleged to be in violation of any statute, regulation or ordinance which is designed to prevent or minimize pollution, impairment or destruction of the environment. The action may be for injunctive or other equitable relief to compel compliance with a statute, regulation or ordinance, or to assess civil penalties for the violation as provided by law. The action may be commenced upon an allegation that a person is in violation, either continuously or intermittently, of a statute, regulation or ordinance, and that there is a likelihood that the violation will recur in the future.

b. Except in those instances where the conduct complained of constitutes a violation of a statute, regulation or ordinance which establishes a more specific standard for the control of pollution, impairment or destruction of the environment, any person may commence a civil action in any court of competent jurisdiction for declaratory and equitable relief against any other person for the protection of the environment, or the interest of the public therein, from pollution, impairment or destruction.

c. The court may, on the motion of any party, or on its own motion, dismiss any action brought pursuant to this act which on its face appears to be patently frivolous, harassing or wholly lacking in merit.

[N.J.S.A. 2A:35A-4 (emphasis added).]

See also N.J.S.A. 2A:35A-6 ("A court of competent jurisdiction may grant temporary and permanent equitable relief, including the imposition of such conditions as may be necessary to protect the environment, or the interest of the public therein, from pollution, impairment or destruction.").

If plaintiffs established a prima facie case under N.J.S.A. 2A:35A-4, defendants could "rebut such showing by the submission of competent evidence to the contrary." N.J.S.A. 2A:35A-5. And, they could

show as an affirmative defense that [their] conduct does not violate any statute, regulation or ordinance designed to minimize pollution or impairment of the environment and is in compliance in good faith with any pollution abatement schedule if applicable the purpose of which is alleviation of the damage to the environment complained of.

[Ibid.]

Here, plaintiffs proceeded under N.J.S.A. 2A:35A-4(b). They were obligated to proceed under subpart (b) because, while their expert claimed that the sound from the fire sirens exceeded a variety of federal and state noise standards, he admitted that these standards did not apply to the sirens. Thus, the sirens did not violate any statute, regulation or ordinance designed to prevent or minimize pollution, impairment or destruction of the environment, and N.J.S.A. 2A:35A-4(a) did not apply.

Plaintiffs failed to prove their claim under subpart (b) because they could not prove that silencing the fire alarms was necessary to protect the environment or the public from pollution, impairment or destruction. Rather, the competent evidence rebutted that claim. N.J.S.A. 2A:35A-5. As reasonably found by the trial court, the sirens were a necessary component of the township's emergency alert system. Therefore, maintaining the sirens, not silencing them, served the public interest.

Moreover, the affirmative defense also was proven under N.J.S.A. 2A:35A-5. New Jersey's Noise Control Act, N.J.S.A. 13:1G-1 to -23, which defines "noise" as "any sounds of such level and duration as to be or tend to be injurious to human health or welfare, or which would unreasonably interfere with the enjoyment of life or property throughout the State or in any portions thereof . . .," N.J.S.A. 13:1G-3(d), expressly permits municipalities to sound certain types of alarms, N.J.S.A. 13:1G-4.2. It establishes specific noise standards and explicitly exempts fire sirens from those standards. The trial court correctly rejected plaintiffs' claim under the ERA.

The judgment under review is affirmed.

 

These figures are based upon the township's records. The Kokkinoses maintained logs of activities at fire station two. However, their logs were based only upon activities observed while they were at home.

(continued)

(continued)

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A-1204-08T1

March 9, 2010