On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Municipal Docket No. 07-73.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 29, 2008
Before Judges Carchman, R. B. Coleman and Simonelli.
The Township of Wyckoff*fn1 appeals from a January 3, 2008 judgment of the Law Division, declaring its noise ordinance, Township of Wyckoff, Ordinance § 143-2 (the Ordinance), unconstitutional. On a trial de novo, among other things, the judgment reversed a judgment of conviction entered in the Wyckoff Municipal Court, entered a finding of not guilty, dismissed the complaints against defendant Scott E. Pankow and ordered the return of fines and costs previously paid by defendant. We reverse, reinstate the convictions and order the fines and costs previously imposed to be paid.
We briefly describe the unusual facts and procedural history of this matter. Defendant, a Wyckoff resident, owns two dirt bikes that he operated on his property. Following complaints by one of defendant's neighbor, Deborah Coleman, the Township issued two municipal complaints against defendant for violating the Ordinance. On June 8, 2006, the Wyckoff Municipal Prosecutor and defendant reached a plea agreement, later memorialized by a consent order, which provided in relevant part:
2. Defendant, Scott E. Pankow shall be prohibited from operating or allowing any other individual to operate any motorcycle, motorized bike, mini bike, dirt bike, all terrain vehicle (ATV) or any similar motorized bicycle at any time on the property known as 367 Clover Lane, Wyckoff, New Jersey, which is owned and occupied by Mr. Pankow. . . . .
4. In the event . . . Scott Pankow violates any provision of Paragraph 2 of this Order in addition to any other charges that the [Defendant] may be subject to, such violation shall constitute a violation of a Judicial Order and subject . . . Scott Pankow to additional charges of criminal contempt for violating a Judicial Order pursuant to N.J.S.A. 2C:29-9, which constitutes a crime of the fourth degree.
The consent order did not resolve the ongoing dispute. On March 9, 2007, four additional summonses were issued against defendant charging him with violating the Ordinance on June 10, July 16, July 23, August 6, August 7, August 21, August 28 and September 10, 2006. He was also charged with a criminal offense - fourth-degree contempt, N.J.S.A. 2C:29-9A - which the Bergen County Prosecutor's office later downgraded to disorderly conduct, N.J.S.A. 2C:33-2A1.
The facts giving rise to the four new complaints revealed that on June 10, 2006, defendant and his son removed both dirt bikes from defendant's garage, turned them on and revved their engines almost continuously for approximately fifteen to twenty minutes. A neighbor, Robert Moritz, asked defendant to turn off the bikes. When defendant refused to do so, Ms. Coleman called the police. According to another neighbor, Eric Webber, defendant revved the engine several times to the point that it sounded unusual, and defendant did so while looking at Ms. Coleman and smiling. Ms. Coleman noted that when inside her home, she could hear the dirt bikes make "a rumbling sound through [her] home."
In mid-July, defendant revved the bike engine for approximately fifteen minutes, and on July 23, 2006, defendant revved the bike's engine for about twenty minutes, while looking at Ms. Coleman and smirking.
The conduct continued as on August 6, 7, 21 and 28 and September 10, 2006, defendant revved the engines of either one or both of the dirt bikes for about fifteen minutes and on one occasion, revved one bike on his driveway for about thirty minutes.
Defendant denied riding his bikes on his property and explained that he started the bikes only for the purpose of maintaining them, as instructed on their manuals. He denied running their engines to aggravate anyone. Judge Teschon, the municipal judge, found the neighbor-witnesses to be credible and found defendant's testimony not credible. The judge concluded that defendant revved his dirt bike engines in retaliation for Ms. Coleman's complaints. To become familiar with their sound, Judge Teschon watched a videotape of defendant's dirt bikes operating.
The municipal judge found that defendant violated both the consent order and the Ordinance because the noises produced were unnecessary and done to annoy. He further found the ...