HOWELL – By a margin of one vote, the Howell Zoning Board of Adjustment has upheld the township zoning officer’s determination that the Xscape movie theater is not causing a noise disturbance at a neighboring residence.
The movie theater is in a shopping center on Route 9 north near Lanes Mill Road in Howell.
Resident Marc Parisi filed an appeal of the zoning officer’s decision with the zoning board. He said noise from the theater can be heard at his home on Castle Court.
The zoning board considered the matter on Aug. 28. Attorney Gordon Gemma represented Parisi and attorney Gerald Sonnenblick represented the property owner, AAM Mill LLC, and the Xscape movie theater.
Testimony indicated Parisi filed a complaint with the municipality and claimed noise from the theater violates Howell’s ordinance and the Planning Board resolution that granted approval to the theater.
Representatives of Monmouth County performed tests at Parisi’s property and determined there was no violation of the resolution.
The board’s attorney, Ronald Troppoli, said the only reason for Parisi’s application to come before the board was to determine whether the zoning officer properly enforced the terms of the resolution.
Gemma provided emails between Parisi and the theater operator in which the theater operator acknowledged there was noise on Parisi’s property.
Eric Zwerling, the director of the Rutgers Noise Technical Assistance Center, New Brunswick, testified as a noise expert and acoustical consultant on behalf of Parisi.
Zwerling said he visited Howell in June to investigate the situation.
“I arrived at about 11 p.m. and I went into the parking lot of the movie theater to see whether there was any noise coming from the parking lot that might have been confused with noise from the move theater at (Parisi’s) property. There was nothing in the parking lot,” Zwerling said.
Zwerling said he drove to the back of the theater and could hear some rumbling from the back of the building. He said he walked into Parisi’s backyard, which is about 20 feet from the property line.
He said that after he noted some observations, he decided it would be more appropriate to conduct the observations closer to Parisi’s home and from inside the residence, specifically the bedroom.
“If you are looking to determine whether there is a disturbance, it is most appropriate to make that determination at the location where people are most reasonably to be disturbed. At 11 p.m. it is not likely (Parisi) would be sitting at his property line, but maybe in the immediate vicinity of the pool which is where the outside measurements were taken, and in fact in his bedroom as well,” Zwerling said.
Zwerling said noise can be measured on different scales. He said the county used one scale and he used a different scale to pick up more low frequency decibels.
One type of scale is used “because it essentially mimics human sensitivity to noises of moderate intensity and moderate frequency. It is specifically designed to discriminate against low frequency because humans do not hear low intensity or low frequency very well, but if you put low frequency through a sub-woofer the size of a Toyota Corolla and a couple thousand watts behind it, now all of a sudden you hear it very well.
“(A different type of scale) is much more sensitive to low frequency sound and is why (that) scale is used in many jurisdictions for the regulation of amplified sound, so that is why it was used in this report,” Zwerling said.
The board’s chairman, Wendell Nanson, asked Zwerling how his observations compared to the board’s resolution of approval for the theater.
Zwerling said the movie theater uses an IMAX sound system and he said the board’s resolution did not account for that type of sound system.
The resolution states that the theater will not make more noise than motor vehicle traffic from Route 9 and Zwerling said the noise was “measurably more intense than that of the traffic.”
Zwerling said the sound readings he took outside Parisi’s home violated Howell’s noise ordinance when measured on what he called a “C” scale. He did not dispute the zoning officer’s determination that there is no violation when the sound reading are measured on what he called an “A” scale.
Gemma, representing the homeowner, said, “The county applied a set of standards; the standards the county applied are not the standards of Howell’s noise ordinance and not the standards of the model noise ordinance, and they are not the standard that was used in the context of the application of the representations that were made to this board” when the movie theater was proposed.
Gemma said testimony that was presented on behalf of the movie theater did not specify a noise scale, but addressed noise.
Following the testimony, board member Thomas O’Donnell made a motion to affirm the zoning officer’s determination that the noise at Parisi’s home does not violate Howell’s ordinance based on the scale that was used. Board member John Kyle Turk seconded the motion. O’Donnell, Turk, Nanson and Daniel Cardellichio voted yes on the motion.
Board member John Armata voted no on the motion and said, “Based on the fact that a noise is a noise, I do not care how you measure it … To (Parisi), the noise represents a disturbance and as I voted in other cases, when it comes to our citizens being disturbed by something that is really manufactured on a daily basis, I do not think that is good for our citizens.”
Board member Richard Mertens voted no and said, “I visited the site and I do not fault our zoning officer because he is relying on a scale, but on a common sense scale, I heard the noise.”
Board member Thomas Posch also voted no, but the motion to uphold the zoning officer’s determination regarding the lack of a noise violation was upheld in the 4-3 vote.
