Noise Fight Reheating

A neighborhood anti-noise group will draw swords in Orange County Superior Court against the Pacific Amphitheater today in a continuing battle over noise--the nighttime music that draws crowds and repels neighbors.

Judge Richard Becham, who today will hear arguments and set trial dates, in January ordered Concerned Citizens of Costa Mesa Inc. to return with all their complaints in one basket to start resolving a tangle of lawsuits and countersuits, mostly about noise.

Since 1980, the city of Costa Mesa, the state, Ned West Inc.--the firm that operates the amphitheater on a 40-year lease with the state--and the citizen’s group have all turned to the courts to air their grievances.

Three Major Allegations

But about the only people happy to be back in court are those in the anti-noise neighborhood group, which claims to represent 300 area homes.

“Our feeling is that the Pacific Amphitheatre has no right to be barbarous in a civilized neighborhood,” said Russell Millar, president of Concerned Citizens, which sued the state and Ned West in 1983. “We want them to be the good neighbor they promised to be.”

The citizens’ group has bundled together its three major allegations for the judge to hear at one trial. They are:

- The amphitheater is a nuisance because of excessive noise.

- The environmental impact report done in 1978 projected a 5,000-seat theater, not the 18,500 seats that now exist. Thus, the Orange County Fair Board, a state agency, violated state law that requires a revised report if a project changes “significantly.”

- Ned West partner Neil Padiano and General Manager Steve Redfearn are in contempt of court for 262 counts of violating a court injunction issued in May, 1987, setting maximum decibel levels.

Since the lawsuits began flying in the early 1980s, the city and the citizens group generally have been pitted together against the amphitheater operator, with the state caught in between.

Today’s hearing comes at a time when Costa Mesa and the state have been in the thick of negotiating an out-of-court settlement with Ned West.

“The city has been agreeable, so has the state and so have we to put our differences aside and sit down and talk,” said Deborah M. Nesset, attorney for Ned West. She declined to discuss any of the settlement talks or the matters in litigation.

“Unfortunately, the Concerned Citizens put it back into litigation,” said Dennis W. Dawson, state deputy attorney general representing the Orange County Fair Board. “The settlement discussion ought to have been allowed to exhaust itself.”

Costa Mesa City Atty. Thomas Wood declined Thursday to discuss the out-of-court negotiations with Ned West.

But the offers on the table for discussion by the state, Costa Mesa and Ned West officials reportedly include a dome over the theater to contain noise, a sound wall along the berm to reflect noise back into the bowl, and fines against Ned West of 50 cents per concert-goer for every performance that exceeds noise limits.

Dome Called Too Expensive

The fines, which could bring in $9,000 per performance, would go into a fund to help area residents soundproof their homes.

But Dawson said the dome idea was rejected as too expensive and that sound experts believed the raised wall would be ineffective.

For Millar and his citizen group, the only acceptable solution is a dome over the amphitheater or a heavy hand on the volume control, he said.

“To us it’s the roof or turn down the noise,” he said Thursday, standing in his living room, a grand piano behind him.

“If it’s Beethoven or heavy metal, no one has the right to broadcast into our living room,” he said. “It’s not the type of music, it’s the degree of sound.”

Millar said his group would be badly hurt if the city settled with Ned West out of court. Costa Mesa has paid most of the citizens group’s legal bills, estimated by Ned West officials at more than $90,000.

“We’re very grateful the city financed our lawsuit,” he said. “Without that, it would be very difficult for us to remain in court.”

The state’s primary interest is in resolving the question of the environmental impact report, because it faces suits on that subject from both the citizens group and Ned West.

Dawson said he is not worried about the nuisance complaint.

“The district has acted in every way possible to ensure that a nuisance is not committed on its property,” he said. The state has a lawsuit pending against the Pacific Amphitheatre to control noise, among other issues, he said.

“We have worked formally and informally with the tenant to control volumes,” Dawson added.

“It’s taking the courts a long time to reach anything,” said Jill Lloyd, a spokeswoman for the fair board. “Everyone is spending lots of money. We’re not making any progress.”

Indeed, progress has been expensively slow. Lawyers began braiding this Gordian knot even as the Pacific Amphitheatre was being conceived in the late 1970s.

In August, 1980, in the settlement of a suit against the state by Costa Mesa, the state agreed to require any fairground tenant to abide by the city’s noise ordinances. The city had sued for the right to enforce its noise, zoning and other ordinances notwithstanding the amphitheater’s location on the state-owned fairgrounds.

After the amphitheater opened in 1983, city officials made headlines when they climbed onto the stage during rock concerts and ticketed performers for violating noise limits. Those citations were thrown out of court by a judge who ruled that the state is immune from such enforcement.

Shortly after the first concert at the amphitheater in 1983 by the now-forgotten Plimsouls, Concerned Citizens sued Ned West and the state, complaining about noise and the environmental impact report. The latter complaint was dismissed by the Superior Court in 1984 but reinstated in 1986 in a 4-3 decision by the state Supreme Court.

The city also sued Ned West over noise, but that case has remained essentially dormant in Superior Court as the citizens’ suit has progressed. A 1985 suit by the state against Ned West for breach of contract, mostly on noise and maintenance grounds, has also lingered in Superior Court as the two sides have tried to hammer out a settlement. The suit seeks legal fees--about $13,500 to date--incurred in the state’s defense against the citizens’ lawsuit.

Last year, Ned West sued Costa Mesa, accusing the city of misusing tax funds and illegally interfering with private business by providing funds for the citizens’ lawsuit.

An appellate judge’s decision last summer cleared the way for today’s actions and renewed orders by Superior Court Judge Gary L. Taylor requiring a firm standard by which Ned West’s compliance or non-compliance with noise ordinances can be judged. Taylor also set a specific decibel limit for sound beyond the amphitheater’s perimeter.