People v. New York Trap Rock Corp.

• Decision Date: 16 November 1982
• Citation: 456 N.Y.S.2d 711,442 N.E.2d 1222,57 N.Y.2d 371
• Parties: , 442 N.E.2d 1222 The PEOPLE of the State of New York, Respondent, v. NEW YORK TRAP ROCK CORP., Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 711

456 N.Y.S.2d 711

57 N.Y.2d 371, 442 N.E.2d 1222

The PEOPLE of the State of New York, Respondent, v. NEW YORK TRAP ROCK CORP., Appellant.

Court of Appeals of New York.

Nov. 16, 1982.

Jennifer L. Van Tuyl, Poughkeepsie, for appellant.

David D. Hagstrom, Town Atty., Poughkeepsie (Anthony J. De Rosa, Poughkeepsie, of counsel), for respondent.

OPINION OF THE COURT

FUCHSBERG, Judge.

In a misdemeanor prosecution tried without a jury in Justice Court, the defendant, New York Trap Rock Corporation, which operates a quarry in the Town of Poughkeepsie, has been found guilty and given a maximum fine of $100 for violating the town's Unnecessary Noise Control Ordinance, a local law which, the Town Attorney tells us, was fashioned along guidelines provided by the State's Department of Environmental Conservation. ¹ The Appellate Term having affirmed without further opinion, the case is now here by leave of a Judge of this court pursuant to CPL 460.20. On this appeal, the defendant presses, in the main, two questions: Is the ordinance pre-emptive of or inconsistent with State law? If not, does the ordinance offend the constitutional void-for-vagueness doctrine of due process? In the alternative, by way of trial error the defendant argues that, in effect, the Judge placed the burden of proof on the defendant instead of on the People.

facts

The defendant corporation owns and operates the quarry occupying Clinton Point, a 1,200 acre site on the east bank of the Hudson in the southwesterly portion of the town. The property, one of the Nation's leading sources of crushed dolomitic stone, has been mined for this resource since at least the nineteenth century and, since the advent of land planning, is zoned in accordance with its prior use. As an integral part of defendant's operation, the stone, as quarried, is trucked to an on-site plant for crushing.

In more recent times, a tract north of the defendant's land was developed into a quarter-acre residential subdivision. Thereafter, to minimize whatever noise is produced in the regular course of the quarrying, as well as to provide a visual block, the corporation, at great expense, separated itself from the residential area by erecting a large sound-absorbing berm in the form of a 3,900 foot earthen wall, whose base ranges from 100 to 150 feet in width and whose 30-foot height is topped by a stand of trees; acting as additional buffers are a 250-foot strip of land and an adjacent area occupied by a power line easement.

Since 1965, the quarry has operated on two shifts, one from 7:00 a.m. to 3:30 p.m. and the other from 4:30 p.m. to 1:00 a.m. No drilling or blasting is conducted on the later shift, but, to meet normal market demand, loading of the stone produced during the earlier one continued through both. For decades, loading of the loosened precrushed stone has taken place at least 2,500 feet from the boundary of the nearest residential area, from where it is hauled to the crushing plant, itself located more than a mile from the nearest residence. This schedule and procedure the defendant followed uneventfully until July 18, 1980. It then learned for the first time that three of the residents of the subdivision had made criminal complaints on the basis of which three informations, each relating to the identical nighttime loading operations of June 26, 1980 (one as of "about 11:01 PM", the second as of "about 11:05 PM" and the third as of "about 11:16 PM") and each accusing the defendant of "loud and unnecessary noises". After a joint trial of the informations, the trial court ruled that they comprised but "one single alleged criminal transaction".

the ordinance

It was only some three years earlier that the town, in 1977, had adopted the ordinance with which we here are concerned. At its heart is its section 3.01, which, after a blanket provision that "[n]o person shall make * * * any unnecessary noise", defines the last phrase, among other things, as "any excessive or unusually loud sound or any sound which either annoys, disturbs, injures or endangers the comfort, repose, health, peace or safety of a person".

Section 2 of the ordinance lists 10 "standards to be considered in determining whether unnecessary noise exists in a given situation", while expressly stipulating that these are not to be exclusive. The 10 are as follows:

"(a) the intensity of the noise

"(b) whether the nature of the noise is usual or unusual

"(c) whether the origin of the noise is natural or unnatural

"(d) the volume and intensity of the background noise, if any

"(e) the proximity of the noise to sleeping facilities

"(f) the nature and the zoning districts of the area within which the noise emanates

"(g) the time of day or night in which the noise occurs

"(h) the time duration of the noise

"(i) whether the sound source is temporary

"(j) whether the noise is continual or of a periodic or impulsive character".

As if to emphasize the nonexclusivity of this decalogue, it also is preceded by section 3.00, which consists of a single sentence reading: "Any act or violation of any of the provisions of this ordinance is deemed to be in violation of Section 3.01 * * * without in any way limiting the generality of the provisions of section 3.01".

Next, its section 3.02, in referring to 17 acts which will violate the ordinance if they create "unnecessary noise", qualifies these too by declaring that "any enumeration herein shall not be deemed to be exclusive". Of the 17, defendant was charged with the violation of only one, subdivision (e), which, after mentioning "the loading or unloading of any vehicle * * * so as to create unnecessary noise at the adjoining property line", adds that, "[w]ithout limiting the above language, it shall be a violation * * * to load or unload any vehicle * * * between the hours of 11:00 P.M. and 7:00 A.M. within 300 feet of the boundary lines of a residential district".

Defendant's conviction was for violating the general provisions of section 3.01 and that part of subdivision (e) of section 3.02 which prohibits loading which creates "unnecessary noise at the adjoining property line". The court found no evidence to support the violation of that part of subdivision (e) of section 3.02 which prohibits loading within 300 feet of a residential district. In announcing these decisions, it also overruled the defendant's constitutional contention.

issues

I

Defendant advances contentions, first, that the ordinance, "in imposing criminality without proof of any of the five elements required by Penal Law section 240.45, is unconstitutionally inconsistent with State law" ² and, second, that "in punishing 'noises' that offend individual persons, [the ordinance] has exceeded the delegated authority in Town Law Section 130(11)". ³ The first, that of "pre-emption", takes the tack that the town is utterly without any right to act at all. The second, that of "inconsistency", asserts that, while local enactments on the subject of the ordinance are permissible, the present one is in conflict with existing State law. We reject both arguments.

There is nothing in section 240.45 of the Penal Law, the criminal nuisance statute, to indicate an intention by the Legislature, directly or indirectly, to restrict the town's power to enact a noise ordinance. To the contrary, by section 10 (subd. 1, par. [ii], cl. a, subcl. [12] ) of the Municipal Home Rule Law, local governments have been given broad authority to adopt ordinances governing the safety, health and well-being of those within their jurisdictions and, moving from the general to the particular as it affects this case, by subdivision 11 of section 130 of the Town Law, towns have received specific authority to regulate noise in their communities, the latter the surest indication that the State has not intended to restrict the regulation of noise to itself (see, also, NY Const. art. IX, § 2, subd. [c], par. [ii], cl. [10] ).

These authorizations are not undermined by section 240.45. True it is that, in prohibiting conduct which unreasonably endangers the "safety or health of a considerable number of persons", this statute, though it does not do so in so many words, may be applied in circumstances involvin excessive and unreasonable noise. However, the Municipal Home Rule Law, designed as it is to make government more responsive to the needs of particular localities, makes this possibility one of little moment, for, wherever practicable, it encourages reconciliation of State and local laws (see Municipal Home Rule Law, § 51).

Thus, that an ordinance has some connection with a subject upon which a State statute exists does not automatically vitiate it on that account (People v. Judiz, 38 N.Y.2d 529, 531-532, 381 N.Y.S.2d 467, 344 N.E.2d 399). It is, therefore, well settled that, if a town or other local government is otherwise authorized to legislate, it is not forbidden to do so unless the State, expressly or impliedly, has evinced an unmistakable desire to avoid the possibility that the local legislation will not be on all fours with that of the State (Monroe-Livingston Sanitary Landfill v. Town of Caledonia, 51 N.Y.2d 679, 683, 435 N.Y.S.2d 966, 417 N.E.2d 78; People v. Cook, 34 N.Y.2d 100, 109, 356 N.Y.S.2d 259, 312 N.E.2d 452).

In sum, unless one were to essay the narrowest of constructions, it cannot be said that the town's antinoise ordinance, in any meaningful respect, allows what State law forbids or forbids what State law allows.

II

Turning then to the void-for-vagueness doctrine, we begin our analysis by a brief review of the reasons why it at times has been called "the first essential of due process of law" (Connally v. General Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322).

As we have had occasion to reiterate in recent years, a prime purpose is to meet "the constitutional requisite that a statute be 'informative on its face' (People v. Firth, 3 N.Y.2d 472, 474, 168 N.Y.S.2d 949, 146...