dissenting.
I respectfully dissent. Less than one year ago, this Court stated the constitutional limits of a municipality’s power to regulate the use of land as follows:
In order to be valid, [the] regulation must both represent a reasonable exercise of the police power and bear a real and substantial relation to a legitimate municipal goal. Moreover, the regulation may “not exceed the public need or substantially affect uses which do not partake of the offensive character of those which cause the problem sought to be ameliorated.” Kirsch Holding Co. v. Borough of Manasquan, 59 N.J. 241, 251 (1971). See, e. g., Pascack Ass’n, Ltd. v. Mayor & Coun. of Washington Tp., 74 N.J. 470, 483 (1977); Berger v. State, 71 N.J. 206, 223-224 (1976); J. D. Construction Corp. v. Board of Adj. of Freehold Tp., 119 N.J.Super. 140, 145 (Law Div.1972). [State v. Baker, 81 N.J. 99, 105-106 (1979)]
In upholding Springfield’s ordinance as a valid exercise of the police power, the majority has completely ignored this well-settled principle of municipal law. Plaintiff’s claim is that the *452closing hour restriction “substantially affects uses which do not partake of the offensive character” of the problems of noise and traffic control which the ordinance seeks to solve. This claim has been effectively drowned out by the repeated recitation of an ordinance’s presumption of validity.
If the majority had examined the alternatives to the Springfield ordinance—a task which Baker requires it to perform, see 81 N.J. at 109-111—it would have concluded that an ordinance regulating the closing hours of retail businesses is not a valid means for reducing noise where completely adequate alternatives exist. Instead, the majority fails to consider the existence of other township ordinances covering the same “intrusions” which allegedly necessitate regulation of closing hours. Both the township and the majority should look to those regulations to meet the need which the ordinance attempts to fulfill in an arbitrary fashion.
“[Mjunicipal enactments may not transcend public need and must bear a real and substantial relationship to the objectives of the ordinance.” Hudson Circle Servicenter, Inc. v. Kearny, 70 N.J. 289, 301 (1976). Applying this constitutional standard prevents the presumed validity of municipal ordinances, Hutton Park Gardens v. West Orange Town Council, 68 N.J. 543, 564 (1975), from becoming conclusive without further inquiry. The traditional presumption should not divert a court from fully assessing an attempted exercise of the police power. Although laws are to be liberally construed in favor of municipalities, N.J.Const. (1947) Art. IV, § VII, par. 11, courts cannot uphold municipal restrictions which “transcend public need” simply because they take the form of a police regulation.
It is apparent that the trial court treated the presumption of validity as a conclusion. After reciting the rule that municipal regulations must be reasonable, it summarily held that
[a]ny reasonable limitations upon the hours of service is a regulation concerning the health and peace and comfort of the surrounding residential areas and is within the domain of the police power.
The majority’s affirmance binds the power of judicial review with this inadequate reasoning, which relies on distinctions *453without a difference and ignores differences where they do exist. Such analytical acrobatics would not be necessary if the requisite “real and substantial relation” to the public need were present.
The “public need” extends to the health, safety and general welfare of the community. See N.J.S.A. 40:48-2. While this concept is very broad, see, e. g., Dome Realty, Inc. v. City of Paterson, 83 N.J. 212 (1980); Hutton Park Gardens, supra; Inganamort v. Borough of Fort Lee, 62 N.J. 521, 536 (1973), it is not without limits. See, e. g., Hudson Circle, 70 N.J. at 312 (finding invalid requirement that parking lot be paved). The extent of the public need in any given situation depends upon the potential harm of the activity sought to be regulated. Thus, when a municipality seeks to limit the hours of operation of a business, both the type of activity and its location are factors to be assessed in determining the limits of the police power.
As a class, retail establishments do not pose any danger to public health, safety or welfare. In a certain setting, however, specific types of businesses may present a particular problem which may properly be alleviated by municipal regulation. See generally Fasino v. Borough of Montvale, 122 N.J.Super. 304, 308 (Law Div.1973), aff’d o. b. 129 N.J.Super. 461 (App.Div. 1973). For example, drug store hours have been regulated during wartime to protect the public from the dangers of service by pharmacists who were overworked as a result of a labor shortage. See Starkey v. Atlantic City, 132 N.J.L. 27 (Sup.Ct. 1944); Spiro Drug Service v. Union County, 130 N.J.L. 1 (Sup. Ct.1943), aff’d, 130 N.J.L. 496 (E & A 1943). Jewelry auctions have been validly prohibited between the hours of 6 p. m. and 8 a. m. to protect customers from fraud by nighttime use of artificial lights. See Wagman v. Trenton, 102 N.J.L. 492 (Sup. Ct.1926). Courts have also upheld restrictions on the operating hours of quarries to provide neighboring residents respite from noise. See-Dock Watch Hollow Quarry Pit v. Tp. of Warren, 142 N.J.Super. 103, 121-123 (App.Div.1976), aff’d o. b., 74 N.J. 312 (1977); Cranberry Lake Quarry Co. v. Johnson, 95 N.J.Super. 495, 512 (App.Div.1967), certif. den., 50 N.J. 300 (1967). Finally, the hours of operation of laundromats have been restricted to *454protect the public from fire hazards and increased criminal activity. See Tp. of Little Falls v. Husni, 139 N.J.Super. 74 (App.Div.1976).1 Unlike the present situation, each of these cases reveals that the “specific businesses that were regulated presented a clear danger to the public health or safety or both.” Fasino, 122 N.J.Super. at 309.2
No one would dispute that the operation of any retail establishment has impact on the public welfare. Although the majority’s analysis goes no further than this proposition, judicial inquiry may not end there. The dispositive question is whether that impact creates a public need sufficient to regulate or restrict business activity. Here the regulation is claimed necessary to avoid intrusion on the privacy of residential areas abutting the neighborhood-commercial zones. The asserted harm is the disturbance of the peace and quiet of the community during nighttime hours. This is the same interest sought to be *455furthered by the closing law held invalid in Fasino. While not rejecting Fasino as wrongly decided, the majority attempts to distinguish it on the basis of the territorial reach of the two ordinances. Ante at 450. The majority observes that in Fasino the ordinance affected the entire municipality, while here only small areas of the town are involved.3 Although the location of the restricted activity may be important in assessing the extent of public need for regulation, it is not the only factor for consideration. Virtually any limitation on the operating hours of businesses bordering residential areas would enhance peace and quiet in some small measure. The flaw in the majority’s position is its failure to recognize that the infirmity in a general closing law does not stem solely from its geographic scope. Both a general law and Springfield’s ordinance are invalid because they attempt to prevent objectionable conduct which might result from late night retail operations by restricting the entire operation rather than the objectionable conduct. Both, therefore, transcend public need.
The intrusion that the ordinance seeks to avoid is the excessive noise which may result from late night patronage of plaintiff’s store. I join in the majority’s recognition that control of noise pollution is a legitimate purpose of a municipal ordinance. See ante at 449-450. The Legislature has specifically authorized municipalities to regulate disturbing noises. N.J.S.A. 40:48-1(8). No amount of liberal construction, however, should convert this delegation into a license to control noise indirectly by closing retail establishments in certain areas.4 Regulating the hours of operation of a quarrying business, see Dock Watch Hollow Quarry Pit, supra, or even a coin operated car wash, see *456People v. Raub, 9 Mich.App. 114, 155 N.W.2d 878 (1968), is clearly more suitably tailored to the prevention of disturbing noises. The present case, however, is not a direct attempt to control the noise of the business—it is an indirect attempt to control the noise of customers. Plaintiff will not be creating a disturbance by operating its business; therefore, the municipality cannot shut down that business to eliminate disturbances created by others where less intrusive alternatives exist. See State v. Baker, 81 N.J. at 106-108; Kirsch Holding Co., 59 N.J. at 253-254; Larson v. Borough of Spring Lake Heights, 99 N.J.Super. 365 (Law Div.1968).
The majority’s validation of Springfield’s closing ordinance reflects a total failure to consider existing less restrictive alternatives which are more appropriately tailored to noise control. See State v. Baker, 81 N.J. at 111; cf. Husni, supra (ordinance required laundromats to close from 11 p. m. to 7 a. m. or to have an attendant on duty). The municipality has already enacted ordinances prohibiting the intrusions Quick Chek’s operations are claimed to present.5 Review of these regulations reveals ample provision for every type of objectionable activity which might accompany Quick Chek’s operations.6 Under these circumstances, the closing hour ordinance is “palpably excessive as *457a ‘requirement necessary to minimize the offensive character of the conduct to be regulated.’ ” Larson, 99 N.J.Super. at 374 (quoting State v. Mundet Cork Corp., 8 N.J. 359, 369 (1952), cert. den., 344 U.S. 819, 73 S.Ct. 14, 97 L.Ed. 637 (1952)).
Since the ordinance clearly “transcend[s] public need,” Hudson Circle, 70 N.J. at 301, I would hold it invalid under Article I, paragraphs 1 and 5 of the State Constitution. I therefore respectfully dissent.
*458For affirmance—Chief Justice WILENTZ and Justices SULLIVAN, SCHREIBER and POLLOCK—4.
For reversal—Justice PASHM AN—1.
The majority also relies on Amodio v. West New York, 133 N.J.L. 220 (Sup.Ct.1945), and Falco v. Atlantic City, 99 N.J.L. 19 (Sup.Ct.1923), for the proposition that municipalities may regulate the hours of operation of barber shops by virtue of the authorization contained in N.J.S.A. 40:52-1(1). Ante at 448. The validity of such regulation, which has never been passed upon by this Court, is questionable. In the more recent case of Tomasi v. Tp. of Wayne, 126 N.J.Super. 169 (Law Div. 1973), the court struck down an ordinance requiring barber shops to close at 6:30 p. m. The court held that as applied to present day conditions, the legislative grant of authority in N.J.S.A. 40:52-1(1) to regulate the opening and closing hours of barber shops went beyond the public need for sanitation or barber competency. Id. at 178, 313 A.2d 229. The Tomasi decision is in accord with the majority view. Most states have found limits on barber shop opening and closing hours to be invalid. See, e. g., City of Miami v. Shell’s Super Store, Inc., 50 So.2d 883 (Fla.Sup.Ct.1951) (en banc); In re Opinion of the Justices, 337 Mass. 796, 151 N.E.2d 631 (Sup.Jud.Ct. 1958); People ex rel. Pinello v. Leadbitter, 301 N.Y. 695, 95 N.E.2d 51 (Ct.App.1950).
Vornado, Inc. v. Hyland, 11 N.J. 347 (1978), and Richman v. Newark, 122 N.J.L. 180 (Sup.Ct.1939), cited by the majority, ante at 448, both involve Sunday closing laws. The validity of such restrictions—which I continue to question, see Vornado, 77 N.J. at 365-370 (Pashman, J., dissenting)—rests not on a danger or threat posed by a particular type of business operation but on the legislative determination that “a day of rest” is needed. This determination, and the legislation which is based on it, stands on an entirely different footing than the ordinance involved in the present case.
Despite its description of the N-C zones as “nestled in a residential neighborhood,” ante at 450, the broad sweep of the majority’s reasoning would support extension of Springfield’s ordinance to all zones bordering on residential areas.
Like the majority, I find no infirmity arising from the ordinance being in substance an exercise of the zoning power, although denominated as an exercise of the general police power. Cf. State v. C. I. B. International, 83 N.J. 262 (1980); Donadio v. Cunningham, 58 N.J. 309, 326-327 n.8 (1971).
Since municipal ordinances may be judicially noticed, Evid.R. 9(2)(a), the trial court should have taken them into consideration despite any untimeliness of plaintiffs attempt to place them before the court. See ante at 446.
Springfield’s general police regulations provide in part:
3-2.2 * * * No person shall loiter in a public place in such manner as to:
a. Create or cause to be created a danger of a breach of the peace.
b. Create or cause to be created any disturbance or annoyance to the comfort and repose of any person.
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3-3.1 * * * It shall be unlawful for any person to make, continue or cause to be made or continued, any loud, unnecessary or unusual noise or any noise which either annoys, disturbs, injures or endangers the comfort, repose, health, peace or safety or others within the limits of the township.
Other provisions of Springfield’s zoning ordinance also afford protection against intrusions by light or noise:
*45717-7.11 Outdoor Lighting, All Districts. In any district where the installation of outdoor flood or spot lighting is intended, such lighting shall be designed so that it will not shine directly or indirectly upon any neighboring property.
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17-8.3(e) Buffer Areas, Required.
1. A ten foot deep buffer area shall be maintained between any parking or loading areas located in the O, N-C, H-C, G-C, 1-20 or I—10 Districts which abut S-120, S-75, S-0 or M-R Residence Districts. The buffer strip shall separate the above-mentioned districts by means of a six foot high fence of close woven wood or other appropriate material and the planting of an appropriate six foot living fence of arborvitae or Canadian hemlock spaced five feet on center to create an effective screening. Fencing shall be located in the buffer area in such a manner that planting will be provided facing residential properties.
‡‡‡‡****
3. Any main wall of a building to be erected in such nonresidential district abutting any residential district shall not be closer than 50 feet from any residential district line or any lot line of any lot used for exclusively residential purposes.
17-8.4(d) General Sign Provisions.
*#%***#*
3. All illuminated signs shall be either indirectly lighted or of the diffused lighting type. No sign shall be lighted by means of flashing or intermittent illumination. All lights used for the illumination of any use or building or the areas surrounding them or for the illumination or display of merchandise or products of business establishments shall be completely shielded from the view of vehicular traffic using the road or roads abutting such business properties. Floodlights used for the illumination of the premises or of any sign thereon, whether or not such floodlights are attached to or separate from the building, shall not project above the highest elevation of the front wall of the building or more than 18 feet above the street level of the premises, whichever is less. Where permitted, illuminated signs shall be so arranged as to reflect the light and glare away from adjoining premises in any residential district or adjoining highway.