Appellate Division Oral Argument of the Week: Is the Borough of Sea Bright's Noise Nuisances Ordinance Preempted by a Regional Health Commission's Existing Ordinance? | NJ Appellate Law Blog – NJ Appellate Lawyer Bruce D. Greenberg blogs about Appeals and Appellate Law Practice

On Tuesday, April 1, judges of Part E of the Appellate Division will hear oral argument in Bonfiglio v. Borough of Sea Bright. That case addresses whether a 2017 noise ordinance adopted by the Borough was void as preempted by a prior ordinance of the Monmouth County Regional Health Commission (“MCRHC”).

The Borough is a member of the MCRHC, and a 1968 Borough ordinance adopted and subscribed to all of the MCRHC’s “requirements and regulations.” The MCRHC’s “Ordinance Establishing a Public Health Nuisance Code” adopted by reference the New Jersey Public Health Nuisance Code of 1953.

Plaintiffs, who operate a tavern in Sea Bright, sued for a declaratory judgment that the local noise ordinance was void for various reasons. The Law Division invalidated the Sea Bright ordinance as having been preempted by the MCRHC’s prior ordinance and being unconstitutionally overbroad. The Borough defendants appealed to the Appellate Division.

Among other things, the Borough argues that the MCRHC cannot preempt a Borough ordinance; only the Legislature itself can. And the Home Rule Act, N.J.S.A. 40:48-1 and 2, gives municipalities the power to adopt noise ordinances. The Law Division’s ruling, the Borough contends, effectuates a disfavored implied repealer of those statutes. The Borough also disputes the ruling that the municipal ordinance was overbroad.

Plaintiffs assert, among other arguments, that State regulation in this area, through various statutes, is so pervasive as to displace the Borough’s ability to pass the noise ordinance that it did. Plaintiffs also contend that by joining the MCRHC, the Borough gave up to the MCRHC any authority over local health nuisances, and the language of Sea Bright’s noise ordinance and other evidence confirms that the noise ordinance is a nuisance ordinance. Plaintiffs deny that the Law Division’s ruling effects any implied repealer and they defend the overbreadth ruling.

The briefs in this case are available here. The oral argument will be livestreamed at this link.

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