Do Not Disturb: How to read an ordinance

In the State of New Jersey, Municipal governments are given powers from the State legislature.  If we are not specifically given a power, we can’t legislate it.

Of course, the State can also yank back powers and if the State lege chooses to act differently than a municipality, the local ordinance is superseded and can no longer be enforced.  An example of this could be seen in Teaneck’s “hands free phone ordinance” or the “requirement for fences for certain above ground pools”.  No matter how wonderful the local population may find the rule, once the State acts in a specific area, the local rules fall.

The question recently came up about whether or not the local “noise” ordinance is enforceable here in Teaneck.

I think this is a good opportunity to share with the public how I look at questions like this, so you can see how the process works out.

First and foremost — what is the ordinance?

Section 21-15 Unnecessary Noise Unlawful (link):

It shall be unlawful for any person to make, continue, suffer, permit, allow or cause to be made or continued, upon any premises or in any vehicle owned, occupied or controlled by such person or another, or upon any public street, thoroughfare or parking lot, or in any public park, playground, gathering place or means of public transportation, any excessive, unnecessary or unusually loud noise which either annoys, injures, disturbs or endangers the comfort, health, repose, peace or safety of others within the Township and which is unreasonable and unnecessary in the circumstances or which is so harsh, prolonged or unusual in its use, time and place as to annoy, disturb or endanger the comfort, health, repose, peace or safety of others within the Township and which are unreasonable and unnecessary in the circumstances. Loud, disturbing, injurious or unnecessary noises in violation of this section are hereby declared to be a nuisance and are prohibited; they include but are not limited to the following, if they are unreasonable and unnecessary in the circumstances (emphasis added):

    (a) Any such noise which disturbs the peace; the blowing of whistles or horns; the ringing of bells; the barking of dogs; the playing of musical instruments; noisy deliveries; noisy service of motor vehicles; operation of noisy motor vehicles; other noisy motor vehicles; the use of muffler cutouts; the operation of power tools, including power lawn equipment; the use of sound reproduction systems; loudspeakers and public address systems or similar devices; or the creation in any manner of other loud noises which are unreasonable and unnecessary in the circumstances (emphasis added).

    (b) No person shall cause, suffer, allow or permit the operation of any tools or equipment used in the construction, drilling, earth moving, excavating or demolition work, or the operation of any power lawn equipment, including mowers, leaf blowers, edgers or trimmers, before the hours of 6:30 a.m. and after 8:00 p.m. on weekdays, and before 7:30 a.m. and after 8:00 p.m. on weekends and legal holidays as established in Section 36-5 of the Code of the Township of Teaneck unless an emergency has been declared by the Township Manager or his designee or such work occurs within an industrial or commercial zone and the resulting noise does not impact on any residential property. This ordinance shall otherwise as provided take effect immediately upon passage and publication, or by law.
[R.O. 1958, ch. 18, § 9; Ord. No. 193010-6-1981, § 1; Ord. No. 32136-13-1989, § 1; Ord. No. 35433-24-1998, § 1; Ord. No. 37431-7-2003, § 1.]
[1]Editor’s Note: For state law as to authority of Township to prevent disturbing noises, see N.J.S.A. 40:48-1(8).
Helpfully, it lists the State authority in the code, so next we look to the NJ Statute (link) to see what it permits the Municipality to do.
NJSA 40:48-1(8):
The governing body of every municipality may make, amend, repeal and enforce ordinances to: Regulate the ringing of bells and the crying of goods and other commodities for sale at auction or otherwise, and to prevent disturbing noises (emphasis added).
Ok, so the locality is permitted to prevent “disturbing noises” and our ordinance prohibits noises which “disturb the peace”.  At least, as far as permission to enact a local ordinance goes, we are on solid ground.
Next, I look to see how cases against this type of thing have fared in the courts.  Have they been challenged?  Have the challenges succeeded?
Google is not as good as asking a lawyer for advice (trust me), but it can certainly be instructive.
There was a law article published in the NJ Law Journal in March that dealt with this issue (link).  Here’s one line that’s relevant to the question about how courts have dealt with challenges:
“Municipalities can easily conform to the strictures of N.J.S.A. 40:48-1(8) by providing at least some standard of disturbance in their ordinances. See, e.g., State v. Clarksburg Inn, 375 N.J. Super. 624 (App. Div. 2005) (upholding an ordinance prohibiting noise that was “loud,” “unnecessary” or “unusual,” or that annoyed or disturbed  others at an audible distance of 100 feet from the building in which it was located); State v. Holland, 132 N.J. Super 17, 21–22 (App. Div. 1975) (sustaining an ordinance also proscribing “unreasonably loud, disturbing or unnecessary noise” and noise “of such a character, intensity or duration to be detrimental to the life, health or welfare of any individual”).”
Our ordinance has very similar language to what was upheld by the courts.
While it’s certainly possible to bring a challenge based on selective enforcement or other grounds (e.g. overbreath or vagueness), in the words of Caleb Kruckenberg, an attorney with broad legal experience, often adverse to the government:
The courts are pretty hands off as long as they are actually enforced in something like a sane manner. Usually a cop will say something like, “I heard the music from 500 feet away. When I approached it became painful and my ears rang afterward.”
Of course, just because we have a law and the ability to call the police, doesn’t mean it’s the best choice — I would highly recommend speaking to your neighbors and talking through your differences.  It could even get you an invite to the next party.