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Martell's Waters Edge, LLC v. Governing Body of the Township of Berkeley

April 3, 2008

MARTELL'S WATERS EDGE, LLC, APPELLANT,
v.
GOVERNING BODY OF THE TOWNSHIP OF BERKELEY, RESPONDENT.



On appeal from a Final Agency Decision of the Department of Law and Public Safety, Division of Alcoholic Beverage Control, Docket No. 7122.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 10, 2008

Before Judges Graves and Sabatino.

Martell's Waters Edge, LLC ("Martell's"), the corporate owner of a restaurant with a liquor license in Berkeley Township ("the Township"), appeals a final agency decision of the Director of the Division of Alcoholic Beverage Control ("ABC") issued on December 21, 2006. In that final decision, the ABC Director ratified the finding of an administrative law judge ("ALJ") that the Township did not abuse its police powers in rejecting Martell's request to amend its license. The requested amendment would have extended the hours in which music can be played on the restaurant's outdoor deck from Sunday through Thursday evenings. We affirm.

The restaurant involved in this case, now known as "Water's Edge," is located in the Bayville section of the Township. The restaurant is bordered by a commercial boatyard to the south, by undeveloped property to the west, and by Barnegat Bay to the east. A residential neighborhood, known as the "Good Luck Point" development, is located to the north and northeast side of the establishment. Martell's purchased the restaurant in 2003.

The restaurant has an outdoor deck that juts out easterly into the bay. The closest residence is about four hundred feet from the deck. The deck includes a bar. It also includes a bandstand, which is screened on several sides by noise barriers. The deck is typically used, weather permitting, on weekends in the spring through Memorial Day, daily from Memorial Day through Labor Day, and for two or three weekends after Labor Day.

From 1994 through the present, the establishment's liquor license has restricted the playing of music on the outdoor deck to certain designated hours. Specifically, the license prohibits such music after midnight on Fridays, Saturdays and holidays, and after 10:00 p.m. on non-holiday Sundays through Thursdays. These restrictions have persisted for fourteen years to the present time.

Responding to local complaints about noise emanating from the deck under the restaurant's former management, the Township adopted a resolution in 2000 that attempted to amend the liquor license. Among other things, the resolution sought to prohibit music on the deck after 10:00 p.m. every day, including weekends and holidays. That particular resolution was nullified, however, by the ABC Director in 2002, following a trial that same year before ALJ Edgar Holmes. Relying in part upon noise measurements presented by the then-licensee's acoustical expert, ALJ Holmes determined that the Township's attempted cutback of the music hours was arbitrary and capricious.

The result of ALJ Holmes's decision, as ratified by the ABC Director, was to maintain the hours permitted under the license for outdoor music, respectively, until 10:00 p.m. Sunday through Thursday nights and until midnight on Fridays, Saturdays, and holidays. At the same time, the Director adopted ALJ Holmes's separate determination that the Township had acted reasonably in prohibiting competitive boat racing, or similar boating events, starting from the docks behind the premises.

After Martell's acquired the restaurant in 2003, it undertook further measures to limit the impact of music from the outdoor bandstand. It installed additional sound barriers, so that the bandstand is now buffered, at least in part, on two of its three sides. Martell's also bought additional land around the restaurant, further distancing the outdoor deck from nearby properties.

According to the testimony of Martell's owner, the music typically played on the outdoor deck is of a "reggae" or "island" style, rather than "hard rock." The record indicates that the establishment has not been cited for violations of the State or local noise ordinances in at least the past two years, even on weekends when it plays music up to midnight. The solitary noise complaint in the record, a police printout dated September 30, 2005, indicates that a neighbor had called the police that night after two attempts to have the music lowered. The police then verified from the restaurant's manager that he had indeed turned down the music, and no summons issued.

In June 2005, Martell's requested the Township to amend the terms of its license so that it could play music out on the deck on every night until midnight, rather than only on weekends and holidays. Recognizing that the request could draw substantial opposition from neighbors, the Township's Council referred the matter for a hearing before a special projects committee. Martell's attorney appeared before that committee on July 12, 2005, and he explained the owner's reasons for seeking the extended weeknight hours. After hearing from counsel, the committee members expressed receptivity to allowing the restaurant to play outdoor music until 11:00 p.m. on weeknights on a trial basis for one month. At this point, Martell's attorney left the committee meeting. Following his departure, five citizens addressed the committee and expressed objections to the extended hours. The objections prompted the committee members to withdraw their tentative support of a one-month trial period. The matter was then rescheduled for a public hearing before the full Council on July 26, 2005.

At the July 26, 2005 meeting, Martell's general manager testified. He reiterated why the restaurant would like to extend its weeknight music hours, and he outlined the measures that it had taken to muffle the sound of the music. Martell's also presented testimony from a noise expert, who testified that he had measured the sounds emanating from the deck when music was being played. The expert confirmed that, after factoring in the effects of ambient sounds from the bay, the ...


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