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Malhame v. Borough of Demarest

Decided: August 3, 1978.

JOHN F. MALHAME AND LESLIE MALHAME, H/W, WILLIAM PECORARO AND JUDITH PECORARO, H/W AND ARNOLD ZIMMERMAN AND CATHERINE ZIMMERMAN, H/W, PLAINTIFFS,
v.
BOROUGH OF DEMAREST, DEFENDANTS



O'Halloran, J.d.c. (temporarily assigned).

O'halloran

This action is brought by John and Leslie Malhame, William and Judith Pecoraro, and Arnold and Catherine Zimmerman, all residents of the Borough of Demarest in Bergen County, seeking a judgment enjoining the borough from continuing to use the present fire alarm siren system and directing defendant borough to inaugurate a different fire alarm system, on the ground that the present system is a nuisance. The borough denies the existence of an actionable nuisance and raises other defenses which will be considered herein.

The Borough of Demarest is substantially a residential community with an area of 2 1/2 square miles, a population of about 6,000 people and with about 1,500 structures. The present fire alarm system consists of three five-horsepower sirens erected in 1953 and unchanged since that time. One siren is located on the firehouse in the center of town, the area where the few commercial establishments are located. The second siren is on the west side of town on Hardenburgh Avenue, and the third is on the east side on Anderson Avenue. The sirens are tested six days a week (Sunday excluded) at noon. The sirens are activated by pressing the test lever at police headquarters. There is an automatic timer that turns the sirens off after ten seconds. Since there is no one regularly on duty in the police station on weekends, the Saturday test is activated from the Closter police station. The Saturday test also serves as the civil defense alarm test, and lasts somewhat longer than ten seconds.

The sirens are activated for a fire by pressing a separate emergency lever at police headquarters for which there is an automatic timer turning the sirens off after two minutes. In 1977 the sirens were sounded 76 times for fires. Problems have been experienced in the past with a device in a local public high school which automatically activates the sirens. Malfunctions have caused the device to set off the sirens. Since there is no timer, the sirens have to be turned off at police headquarters. This has resulted in the sirens blaring for as long as 20 minutes on a weekend before a police officer could turn them off. Testimony indicated that this situation is to be relieved by the addition of a timing device at the high school which will deactivate the sirens.

The loudness of the sirens is measured in "DBA", or decibels on the "A" scale. Apparently "decibels" is a relative term and is meaningless by itself, but takes on relative meaning when placed on an "A", "B", etc., scale. The intensity of the sound of the sirens in this case was measured in DBA.

The west-side siren is located on a utility pole in front of 48 Hardenburgh Avenue, the home of plaintiffs William and Judith Pecoraro, who have lived there since 1969. They have three children, ages 10, 7, and 3. Dr. Pecoraro is a dentist with his office at the same address. The siren is located ten feet from the property line and 35 feet from the house. Dr. Pecoraro was a councilman from January 1, 1975 through December 31, 1977. (During part of that term he serves as fire commissioner and liaison to the board of health.) He has complained about the siren numerous times, formally and informally, since shortly after moving to the premises.

There was no medical evidence offered to show any hearing impairment sustained by plaintiffs, their families or another nonparty resident who testified about the effects of the siren, and the court finds no such impairment. Nor were any of these people ever treated or examined by a doctor in connection with the complained of effect of the sirens. However,

the sounding of the sirens (at least the two-minute cycle for emergencies) does cause Dr. and Mrs. Pecoraro and their children to have temporary ear pain, lasting even after the sirens stop. It causes an apprehensive, jittery, shakey feeling. It causes the children to be frightened. Sleep is interrupted. When the siren sounds at night the parents must get up and go to the children. If the children are outside when the siren sounds during the day, they are brought in. Normal activities, such as conversation and listening to TV are temporarily disrupted. Babysitters and other temporary workers have to be warned about the siren. Patients at Dr. Pecoraro's dental office on the premises have become upset and complained of pain.

Dr. Joseph Danto, with a Ph.D. in audiology, measured the siren's sound levels at the Pecoraro home in 1975. The maximum reading on the front lawn was 128 DBA and the maximum reading in the bedroom of one of the children was 113 DBA. For comparison, the noise level of a pneumatic drill at three feet is about 100 DBA; a jet taking off at a distance of 500 feet is about 120 DBA; a vacuum cleaner about 80 DBA. 120 DBA is the threshold for physical sensation, and pain is experienced at between 130 and 140 DBA.

Plaintiffs Zimmerman live next door to the Pecoraros. Mrs. Zimmerman was in the hospital and could not appear at trial. It was stipulated that Mr. Zimmerman's testimony would be cumulative to that of the Pecoraros.

Plaintiff John Malhame has lived at 66 Edward Street with his wife for five years. They have three children, ages 8 and 2 1/2 years, and 8 months, respectively. The east-side siren is located ten feet from his property line and about 50 feet from the house. The sounding of the siren causes him and his family to be extremely upset and nervous. If outside when it sounds, the noise is deafening and causes his ears to ring. If the siren sounds during sleeping hours, he is awakened for two hours or more and, as in the case

of the Pecoraros, the parents must go to the younger children.

Dorothy Veasey (not a plaintiff) has resided at 23 Anderson Avenue for 30 years. The east-side siren was relocated across the street from and about 140 feet south of her home in 1953. The sounding of the siren has caused her anxiety, with faster heartbeat and shaking hands. If outside when it sounds, it hurts her ears and she must go in. On occasion when the siren has sounded longer than usual, she has gotten in her car and driven off to escape the noise. Once, 15 years ago, when it sounded out of control for over 20 minutes, she ran into the street screaming. She has lost many hours of sleep.

As noted above, the present fire alarm siren system was installed in 1953. A review of minutes of mayor and council meetings indicates that there were complaints about the west-side siren as early as 1954. In 1973 plaintiffs William Pecoraro and John Malhame presented at a mayor and council meeting a petition signed by 30 residents urging that the sirens violated the Noise Control Act of 1971. Later that year the council authorized the volunteer fire department to have an acoustical survey made to evaluate the system. On October 16, 1973 a resolution was passed by the Demarest Environmental Commission suggesting that the mayor and council investigate the possibility of locating the west-side siren in an unpopulated area or of having the sound baffled or lowered because of its high decibel level. Under date of November 5, 1973 the Bergen County Health Department advised the mayor of the following noise level recordings at the source areas:

(a) firehouse siren -- 110 DBA for three seconds peak level;

(b) west-side siren -- 125 DBA for three seconds peak level and 84 DBA for 15 seconds continuous sound;

(c) east-side siren -- 125 DBA for three seconds peak level.

In 1974 the council adopted a resolution concluding that, after thorough investigation of numerous possibilities, the sirens be maintained at their present locations. It appears from the minutes that the reason for rejection of alternatives was cost.

On June 12, 1975 five residents (including three of the plaintiffs) filed a "formal complaint" in the form of a letter with the Demarest board of health charging the use of the sirens at present noise levels to be a nuisance under the local ordinance. On July 10, 1975 the board of health adopted a resolution finding that the noise levels from the sirens in their present locations represent "a severe nuisance and possible health hazard to the residents of Demarest living in close proximity, * * *" and recommending to the mayor and council that they take immediate steps to alleviate the situation. On December 11, 1975 the then borough sanitarian filed a memo with the board of health indicating that he felt that the noise level of the siren system was a serious health nuisance that must be abated. Finally, on December 31, 1975, pursuant to a resolution adopted at an earlier meeting, the board of Health directed a memo to the mayor and council stating that because of the noise level of the sirens the borough continues to be in violation of the local ordinance and requesting that effective measures be taken by May 1, 1976, for abatement of the nuisance. The board supplemented this resolution with a further resolution adopted at its meeting of September 22, 1976, determining that sound from the fire sirens at a volume exceeding 100 DBA at any property line constitutes a nuisance and recommending that the mayor and council abate this nuisance by June 1, 1977.

Under date of September 1, 1976 the fire chief had directed that the sirens and plectron system (home radios) be used for all fires and emergencies, day or night, but that for non-fire related calls, only the plectron system would be used.

On May 2, 1977 the council adopted a resolution to:

(a) retain the present fire siren alerting system;

(b) obtain specifications for instituting silent ...


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