The municipal judge in Sea Bright who invalidated he borough’s noise ordinance on a legal technicality has now reinstated it, the Asbury Park Press reports.
The latest twist hinges on a some hairsplitting: whether the borough should have sought state Department of Environmental Protection approval for its noise ordinance, because the ordinance is stricter than state law.
First, in mid October, Municipal Judge Thomas Foley tossed out the borough ordinance, and with it four noise violation complaints against the Mad Hatter Pub & Pizzeria and owner Scott Kelly. Now, the Press reports that Foley reversed himself on Nov. 29, agreeing with the municipality that it didn’t need state approval.
Whatever the legal mumbo-jumbo, the put-back has brought a sense of relief to members of the Borough Council who worried that earlier convictions of bar owners might be overturned and restrictions on liquor licenses might be lifted, the Press’ Nina Rizzo reports.
“He should have never knocked it out to start with,” Councilwoman and Mayor-elect Maria Fernandes said. “We have to protect our residents and our businesses by this nuisance ordinance.”
From the story:
William Kearns, general counsel for the New Jersey State League of Municipalities, said municipal judges are supposed to presume the municipal ordinance is valid.
“A municipal judge doesn’t have the power to invalidate an ordinance. That is really reserved for Superior Court,” Kearns said, adding that a local case typically would reach the state level after a defendant appealed a conviction.
[Municipal Prosecutor John T. ] Lane argued that DEP approval wasn’t necessary when the town adopted its nuisance ordinance in 1992. The DEP only gets involved when towns determine violations by using a device that measures decibels. Those devices require trained noise control officers who are on duty around the clock, and the devices are susceptible to damage by wind and humidity making them unreliable in oceanfront towns.
The borough adopted a plainly audible noise standard, which police can enforce from a nuisance perspective, [Borough Attorney Scott C.] Arnette explained.
