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Downs Ford Inc. v. Dover Township

Decided: January 12, 1989.

DOWNS FORD, INC., PLAINTIFF,
v.
DOVER TOWNSHIP, DEFENDANT



Serpentelli, A.j.s.c.

Serpentelli

In this action plaintiff seeks permanently to enjoin defendant from interfering with the operation of construction equipment on Saturdays and from prosecuting an action against it in the Municipal Court of the Township of Dover. Plaintiff is charged with a violation of section 105B-5.2(c) of the Code of the Township of Dover, which prohibits:

[o]perating or permitting the operation of any hand or power tools or equipment used in construction, drilling, or demolition work:

1. Between the hours of 9:00 p.m. and 7:00 a.m. the following day on weekdays or any time on the weekends or holidays, such that the sound therefrom creates a noise disturbance across a residential real property boundary. . . .

A noise disturbance is defined in Section 105B-1(0) as follows:

[A]ny sound which (a) endangers or injures the safety or health of humans or animals, or (b) annoys or disturbs a reasonable person of normal sensitivities, or (c) endangers or injures personal or real property.

Plaintiff views the ordinance as an ultra vires act because it seeks to prohibit the operation of construction equipment on Saturdays and is, therefore, an illegal "blue law." Plaintiff asserts that the ordinance is not an enactment for noise control. Defendant takes the contrary position, namely, that the ordinance does not prohibit construction activity on weekends but does control the noise emanating therefrom. The court notes that the summons describes the offense as "operating heavy construction equipment on weekend Saturday." It is clear that chapter 105B does not preclude construction activities on a weekend. Therefore, the offense alleged to have been committed is not within the ambit of the ordinance. This matter could

be disposed of on that single finding but, given the township's position, the court expects that a new summons would be filed alleging a violation of the noise control provisions of chapter 105B. Therefore, the court will address that issue in the interest of judicial efficiency.

At the outset, certain fundamental principles should be acknowledged. First, the ordinance is presumed to be valid and the burden is on the party challenging it to overcome the presumption. Bow and Arrow Manor, Inc. v. West Orange, 63 N.J. 335 (1973). It is to be presumed that when it promulgated the ordinance the legislative body intended to act within existing constitutional restraints. State v. Profaci, 56 N.J. 346, 349 (1970). Additionally, even though the ordinance may be open to a construction which would render it unconstitutional or permit its unconstitutional application, it is the duty of the reviewing court to construe the ordinance in such a manner as to find it constitutional if it is reasonably susceptible to such a construction. Garfield Trust Company v. Director, Division of Taxation, 102 N.J. 420, 433 (1986), app. dism. 479 U.S. 925, 107 S. Ct. 390, 93 L. Ed. 2d 345 (1986).

Next, it must be recognized that the ordinance is a penal enactment and prosecution for its violation is essentially criminal in nature. State v. Yaccarino, 3 N.J. 291, 295 (1949). Such ordinances must not be so vague that persons of common intelligence must guess at their meaning or differ as to their application. The test is whether the ordinance adequately alerts a person to what is forbidden. State v. New York Central R. Co., 37 N.J. Super. 42, 46-47 (App.Div.1955); Connally v. General Construction Co., 269 U.S. 385, 391, 46 S. Ct. 126, 127, 70 L. Ed. 322, 328 (1926).

It has been acknowledged that in legislating with respect to the disturbance of the peace and in particular with respect to noise, the subject matter renders a specific and precise definition difficult to ...


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