On appeal from the Superior Court of New Jersey, Law Division, Warren County, A-30-06-YO9.
The opinion of the court was delivered by: Coburn, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 4, 2007
Before Judges Coburn, Fuentes and Grall.
Defendant, Brandon Krause, was convicted and fined in the Hackettstown Municipal Court for violating the town's noise ordinance. He appealed to the Law Division, which reversed on the ground that the noise ordinance was preempted by a state statute and administrative regulations to the extent that it regulated noise emanating from a commercial entity. The Town of Hackettstown appeals, and we reverse the Law Division judgment. The only issue on appeal is whether Hackettstown's ordinance was preempted by the State's laws or regulations.
The facts are not in dispute. Krause operated a roller skating rink in Hackettstown. On May 26, 2006, around 8:15 p.m., Michael DeMeo, who lived in a house located more than 100 feet from the rink, heard music emanating from the rink while in his bedroom. He called Krause and asked him to turn the music down. Krause refused because the skaters liked loud music. Since we are concerned solely with a question of law, the trial court's legal conclusion is not entitled to any special deference. State v. Drury, 190 N.J. 197, 209 (2007); Manalapan Realty, L.P. v. Township Comm. of the Township of Manalapan, 140 N.J. 366, 378 (1995).
Hackettstown's ordinance prohibits the making of "any loud, unnecessary or unusual noise or any noise which does or is likely to annoy, disturb, injure or endanger the comfort, repose, health, peace or safety of others." Hackettstown, N.J. Ordinances, ch. 9, art. 8, § 9-70. Section 9-71 of the ordinance, entitled "Definition of Noise," provides, in pertinent part, as follows:
Without intending to limit the generality of subsection 9-70, the following acts are hereby declared to be examples of loud, disturbing and unnecessary noise in violation of this section:
a. Radios; Televisions; Phonographs. The playing, use or operation of any radio receiving set, television, musical instrument, phonograph or other machine or device for the producing reproducing of sound in such a manner as to disturb the peace, quiet and comfort of neighboring inhabitants . . . . The operation of such a . . . machine or device so that it is clearly audible at a distance of one hundred (100') from the building . . . in which it is located shall be prima facie evidence of a violation of this section.
At issue in this case is the validity of the underlined 100 foot rule.*fn1 The Legislature has authorized municipalities "to prevent disturbing noises." N.J.S.A. 40:48-1. That general authorization was further refined in the Noise Control Act of 1971 (the "NCA"). N.J.S.A. 13:1G-1 to -23. The NCA specifically addresses the issue of premption:
No existing civil or criminal remedy now or hereafter available to any person shall be superseded by this act or any code, rules regulations or orders promulgated pursuant thereto.
No ordinances . . . of any governing body of a municipality . . . which establish specific standards for the level or duration of community noise more stringent than this act or any . . . regulations . . . promulgated pursuant thereto shall be superseded. Nothing in this act or in . . . any regulations . . . promulgated pursuant thereto shall preclude the right of any governing body of any municipality . . ., subject to the approval of the department, to adopt ordinances . . . which establish specific ...