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DiLeone v. Township of Mahwah

March 9, 2010

CHRISTOPHER DILEONE AND DAWN DILEONE, HUSBAND AND WIFE, AND EMILIOS KOKKINOS AND DR. VASILIKI SAITAS KOKKINOS, HUSBAND AND WIFE, PLAINTIFFS-APPELLANTS,
v.
TOWNSHIP OF MAHWAH, A MUNICIPAL BODY POLITIC GOVERNED AND ORGANIZED UNDER THE LAWS OF THE STATE OF NEW JERSEY, MAYOR OF THE TOWNSHIP OF MAHWAH, AND COUNCIL OF THE TOWNSHIP OF MAHWAH, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Chancery Division, Bergen County, No. C-138-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 17, 2009

Before Judges Wefing, Grall and LeWinn.

In April 2007, plaintiffs filed suit against the Township of Mahwah and its mayor and council, seeking to restrain the Township from using sirens to alert volunteer firemen that their services were needed. Plaintiffs asserted that the use of the sirens constituted an actionable nuisance. They also contended the sound of the sirens was noise pollution and actionable under N.J.S.A. 2A:35A-4 of New Jersey's Environmental Rights Act, N.J.S.A. 2A:35A-1 to -14. After a three-day bench trial, the court entered judgment for defendants, and plaintiffs have appealed. After reviewing the record in light of the contentions advanced on appeal, we affirm.

I.

Mahwah, which covers approximately twenty-seven square miles, is the largest municipality in Bergen County. It has a full-time population of approximately 26,000; during working hours, however, that swells to approximately 45,000. Portions of the township abut the Ramapo Mountains; the highest point in the township is approximately 1100 feet above sea level.

Mahwah does not have a paid fire department. Rather, it relies upon an all-volunteer squad of approximately 125 active volunteers, who are divided among five fire stations spaced at various locations throughout the township. Each of the five stations is responsible for a particular zone within the township.

For at least eighty years, Mahwah has used fire sirens to summon the volunteers to their respective stations. Sirens are located at each of the five stations. Three other sirens are located at other sites, not connected to a station. The township also issues pagers to the volunteers as an additional method of notification. Both the sirens and the pagers are activated by the police department.

Not every station is alerted of every emergency. Which sirens will sound depends upon the location and nature of the emergency and the time of its occurrence. For example, during daytime hours, there are more fire calls but fewer volunteer firefighters available to respond. Therefore, during daytime, work week hours, two fire stations will be called for any given emergency. Multiple fire stations also will be called for a variety of structural fires.

In addition, in zone four, where there are concerns about the insufficiency of pager coverage, sirens sound no matter the hour, no matter what type of call. However, in zones one, two and three, sirens sound no matter the hour only for calls reporting confirmed fire events; at night, between 7:00 p.m. and 7:00 a.m., the sirens do not sound merely for automatically activated fire alarms. This eliminates a large number of sirens overnight because the most frequent fire emergency is for an automatically generated fire alarm, for example, a smoke detector, carbon monoxide detector, or water flow alarm from a business.

Plaintiffs Christopher and Dawn DiLeone reside in Mahwah, with their two children, ages three and ten at the time of the trial. They purchased their home in 1999, knowing that it was near firehouse three, but not having heard the siren.

The township's records indicate that in 2006, the siren at firehouse three sounded ninety-nine times during the day and thirty-one times at night. In 2007, the siren sounded fifty-seven times during the day and twenty-eight times at night. And, in the first four months of 2008, the siren sounded twenty-one times during the day, and four times at night.

Plaintiffs Emilios and Dr. Vasiliki Saitas Kokkinos reside in Mahwah, with their at the time of trial seven-year-old son and Emilios's parents. Emilios moved into the home in 1995, Vasiliki in 1998, knowing it was across the street from firehouse two, but not knowing the sound of the siren, its frequency, or its effects.

The township's records indicate that in 2006, the siren at firehouse two sounded 393 times during the day and 78 times at night. In 2007, the siren sounded 325 times during the day, and 66 times at night. And, in the first four months of 2008, the siren sounded eighty-three times during the day, and twenty times at night.*fn1

Plaintiffs contend that the sirens are unreasonably loud. Emilios Kokkinos, who works from home, testified that the noise from the siren makes it difficult for him to conduct business, particularly telephone calls. And, both sets of plaintiffs testified that the sirens cause them ear pain, scare their children, disturb family members' sleep, disturb daily activities, prevent them from using their outdoor living spaces, and even prevent some friends and family members from visiting them.

Plaintiffs' expert in environmental engineering, Edward Potenta, opined that the township's fire sirens reached decibel levels exceeding 100. These decibel levels exceeded a variety of state and federal noise level standards, and could be painful and cause hearing damage. Potenta admitted, however, that the state and federal noise standards he cited were not applicable to fire sirens. Emergency sirens are exempt from New Jersey's sound level standards, and federal law does not establish any standards for how much noise may be emitted from sirens. Moreover, the township's sirens were consistent with the Federal Emergency Management Act, which addresses the location of sirens and suggests a limit of 123 decibels for sirens adjoining residential structures.

Plaintiffs repeatedly complained to the township about noise from the sirens, particularly to the mayor and the police chief. However, they obtained no relief other than the limiting of overnight sirens to reported fires, and excluding automated calls. That change was made on a temporary basis in 2006, and on a permanent basis in the spring of 2007. For a period of time the township also experimented with not sounding sirens for automatic alarms even during the daytime. However, problems were experienced in obtaining a sufficient turnout of firefighters; therefore, the policy was limited only to overnight hours.

In addition to contending that the sirens were too loud, plaintiffs also contended that the sirens were unnecessary. They presented the testimony of Roger Boyell, an expert in electronics transmissions, who opined that there was no need for the sirens. The omni-directional antenna on Stag Hill was capable of transmitting data for up to twenty miles, absent some obstruction created by the terrain, topography, or a building. And, if there were areas in town with no pager service, or limited service, that problem could be alleviated by replacing the omni-directional antenna with a directional antenna, to concentrate power to the south, covering most of Mahwah except for a few locations, including the area west of the tower. This "fix" would be relatively simple and inexpensive.

Alternatively, he opined, the township could install a repeater, which would receive the signal from Stag Hill and "repeat it a few seconds later so that any local pagers would get a strong signal from the immediate vicinity." This "fix" also would be relatively simple and inexpensive.

Boyell admitted, however, that his recommendations were made based upon an analysis he conducted purely at the theoretical level. He had never visited Mahwah, nor had he ever spoken to any relevant officials. He was not familiar with any of the transmission problems experienced in the township, other than through anecdotal reports, nor was he aware of any problems experienced with the electronics devices used. He did not know how many governmental entities utilized the Stag Hill tower, whether the tower was full to capacity, or whether the owner of the tower would permit any changes. He had not performed any tests to establish that the suggestions he made would work. And, he did not know whether any of the ...


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