[brief] Plaintiffs respectfully submit that the decision below rendering the Ordinance void should be affirmed.  Plaintiffs own and operate a restaurant and bar at [...] in [...], known as “[...]” (also referred to herein as “[...]”).  [...] is located in [...]’s BR Zone, which allows both residential use as well as numerous classes of business uses, including restaurants.  In order to get approvals for [...], Plaintiffs applied to the [...] Planning Board.  After multiple hearings, Plaintiffs withdrew proposals for live outdoor music after concerns were raised that the noise could disturb the neighbors.  The Board carefully weighed the application after Plaintiffs accepted many conditions such as bringing outdoor patrons from a rear yard into a patio area after 10:00pm, enclosing the patio area, and installing drop down curtains over the rear dining area to reduce any noise emanating from the property.  Ultimately, the Board found that “the granting of the variances will have no substantial detrimental impact on surrounding properties nor will it substantially impair the intent and purpose of the zone plan and zoning ordinance. ”  The Borough of [...] attempted to adopt a new noise ordinance in 2017, which Plaintiffs have challenged since its original enactment.  Since then, it has undergone a number of iterations and Defendant has asserted a number of justifications for their authority to adopt such an ordinance.  The first version of the Noise Ordinance was adopted as [...] on April 4, 2017.  After Plaintiffs filed their Complaint challenging the Ordinance and asserting that [...] failed to obtain approval from the [...] (the “[...]”) pursuant to the New Jersey Noise Control Act of 1971, [...] then submitted the ordinance to the [...] for approval, which was denied.  Rather than attempt to comply with the [...]’s model, [...] then amended the ordinance, removing certain objective decibel reading requirements.  The new Noise Ordinance, [...] was adopted on October 17, 2017.  Defendant initially argued that the Noise Ordinance “was adopted in accordance with the Borough’s authority under N.J.S.A. § 26:3-45 to pass ordinances to declare and define what shall constitute a nuisance … .” (Pa55-56).  When Plaintiffs argued that Defendants ceded the authority to adopt health nuisance ordinances to the [...], Defendant’s argument shifted to its current position, that the Home Rule Act authorizes its regulation of noise.  Much like a game of Whac-A-Mole, Plaintiffs pointed out that the Noise Ordinance is “not a proper ordinance under the nuisance code, it’s not a proper ordinance under the [Noise Control Act].  And every time we squish it, it goes somewhere else on us. ”  (2T:39-2 to 5)  The trial court aptly found that the Noise Ordinance was preempted by the State’s regulation of noise nuisances under Title 26.  The trial court also declared the Noise Ordinance void as its provisions addressing “loud talking” and “other noises” were unconstitutionally overbroad.  These sections attempt to inappropriately regulate the unamplified human voice at any time and over a minimal distance.  The court found that this could potentially tread on everyday conversations, and afforded unlimited discretion to an enforcing officer.  Defendants submit that the trial court’s determinations that the Noise Ordinance is void as both preempted and overbroad were proper, and respectfully requests that the decision below be affirmed.  COUNTERSTATEMENT OF FACTS