The inspector who remained in the apartment took twelve noise readings, including three ambient readings to determine how much sound was from the Club and how much was from noise in the environment or so-called ambient noise. One inspector then left the apartment and went into the Club to transmit the music to the other inspector by walkie-talkie so as to verify that the music was coming from the Club.
Following DEP procedures, the inspectors took several noise level readings in the complainant's apartment with the windows closed. The DEP inspectors found that the music being played at the Club exceeded the allowable sound levels set forth in ยง24-241.1(a) of the Noise Code. On April 4, 1996, at approximately 10:30 p.m., DEP inspectors went to the Club to investigate a complaint of excessive noise made by a tenant residing above the Club. ECB is an administrative agency which, inter alia, conducts proceedings for the adjudication of laws, rules and regulations relating to noise pollution. DEP is an administrative agency which, inter alia, enforces laws, rules and regulations for the purpose of eliminating noise pollution. Petitioner Elliana Properties owns the building in which the Club is located. This dispute concerns the issuance of Notices of Violation ("NOV") on Apin response to complaints of excessive noise at petitioner Reminisce Bar and Lounge ("the Club"), a nightclub at 334 East 73rd Street, New York, NY.
1 Respondent DEP opposes the petition, which is denied for the reasons set forth below.
In this Article 78 proceeding, petitioners seek to set aside the order issued by the Environmental Control Board ("ECB") on September 24, 1997, on the grounds that (i) ECB should not have considered the Department of Environmental Protection ("DEP") appeal, and (ii) ECB's determination on appeal was arbitrary and capricious and contrary to the law and the facts.