City Approves Amphitheater Noise Proposal

In a deal that would pull the financial rug out from under a neighborhood anti-noise group, the Costa Mesa City Council approved a proposed settlement Tuesday with the Orange County Fair Board and the operators of Pacific Amphitheatre.

Under the proposal, Ned West Inc.--which operates the facility under a 40-year lease with the Fair Board--would pay penalties of up to $9,000 a day, to be used by area homeowners for soundproofing measures, if its concerts exceed certain noise levels. It also calls for the city to stop financing lawsuits against Ned West by the neighborhood anti-noise group.

“As it stands, this is a bitter disappointment,” said Russell Millar, president of Concerned Citizens of Costa Mesa Inc., which sued the state and Ned West in 1983 protesting loud noise from the amphitheater. “Let’s call it a sell-out. It will be very difficult for us to pursue any legal action.”

Concerned Citizens was not named as one of the three participants in the proposed settlement, but city officials said the group’s comments would be carefully considered.

In Draft Form

The proposal, in draft form for the next 30 days until the neighborhood group, Ned West and the Fair Board give their formal approval or comments, must still be endorsed in a final form by the City Council, said City Manager Allan Roeder.

“This really is a concerted effort to get the situation resolved and to get on with things,” said Roeder, who led the city’s negotiating team.

The nine-member Orange County Fair Board, a state agency, is scheduled to vote on the proposal April 28.

“We feel pretty good about it,” Fair Board spokeswoman Jill Lloyd said. “It’s a step in the right direction. It’s time to get on with our lives and leave the litigation behind.”

Ned West officials could not be reached for comment Tuesday, but Lloyd said the amphitheater operators had “basically accepted” the settlement terms.

Since the late 1970s, even before the amphitheater was built, the issue of noise has been the subject of courtroom battles all the way up to the state Supreme Court. The city sued to establish its right to enforce its noise, zoning and other ordinances notwithstanding the amphitheater’s proposed location on the state-owned fairgrounds.

The Pacific Amphitheatre, built for $11 million in 1983, is an outdoor concert bowl surrounded by 2,000 homes in northern Costa Mesa and features a mix of pop, jazz and rock bands, including such raucous groups as Kiss and Anthrax.

Roeder said Costa Mesa has spent more than $60,000 on behalf of the Concerned Citizens in the group’s 1983 suit against Ned West.

The next court date in the continuing legal battle was set for May 9 in Orange County Superior Court before Judge Richard J. Beacom. But attorneys defending the state and Ned West are expected to seek a postponement of the hearing until the proposed settlement is considered by everyone concerned.

If approved, the settlement would be submitted to the court as a stipulated judgment that would end all litigation among the groups signing it, said Thomas Wood, Costa Mesa city attorney.

The settlement would also prevent any of the signers from suing each other at a later date--so long as its terms are not violated--or supporting any other group’s lawsuit.

“The city is picking the easy way out of a difficult situation,” said Richard L. Spix, the attorney representing Concerned Citizens. “We’ve come 93 yards, and the city is saying no more money unless we sign off on their settlement. I just think that’s unfortunate.”

Under the proposal released Tuesday, Ned West would agree to abide by noise standards set in 1980 in a settlement of the lawsuit against the state by Costa Mesa.

Ned West is expected to request a variance of the 1980 noise standards to allow an extra eight decibels of maximum sound before it will agree to sign the settlement, which puts the city in a tough spot, Roeder said.

If the city rejects the variance request, “then we all end up back in court,” Roeder said. On the other hand, if the request is granted, “we may end up with noise not acceptable to the residents,” he added.

Ostensibly what the residents near the amphitheater stand to gain from the settlement is money to help soundproof their homes and an enforceable cap on how late concerts may run.

Under the agreement, concerts would end by 10:30 p.m. Sundays through Thursdays and by 11 p.m. on Fridays and Saturdays.

The amphitheater would also not be able to schedule shows on the same nights as fair concerts. Such double-scheduling in the past has led to terrific traffic jams in the area. And parking on the amphitheater and fairground lots for future concerts would be free; currently there is a $3 charge.

To enforce the noise standards, the settlement calls for fines against Ned West whenever performers exceed set decibel levels. For each violation before 9 p.m., Ned West would be fined $1,000. That would go to $3,000 for each infraction between 9 p.m. and 10 p.m. and $5,000 for violations after 10 p.m. The total fine for one concert could not exceed $9,000.

Spix, the attorney for Concerned Citizens, said enforcing sound limits through monetary penalties will accomplish nothing toward lowering noise from the ampitheater. Ned West will simply pay the fines and blast away, he said.

“This leaves them free to treat the $9,000 as a business cost for each performance,” he said. “Ned West has shown over and over again that they will not voluntarily be good neighbors.”

Under the settlement, money raised through fines would go into a trust administered by the city for neighbors of the amphitheater who have complained about noise since the 18,800-seat facility opened.

Ned West, the city and the state would contribute $50,000 each to the trust up front so money could be made immediately available. The contributions from the city and the state would be repaid as penalties were assessed. After those contributions were repaid, the penalty money would stay in the trust fund. Ned West’s original contribution would not be repaid.

Roeder said the city would likely set up a review board with area residents to evaluate and approve homeowner applications for money to help soundproof their homes with such measures as double-paning windows.

THE SETTLEMENT

Penalties assessed against Pacific Amphitheatre operators of up to $9,000 for each concert that exceeds certain noise limits.

for each violation before 9 p.m.--$1,000

for each violation between 9 p.m. and 10 p.m.--$3,000

for each violation after 10 p.m.--$5,000

Penalties would go into a city-controlled trust fund for residents near the amphitheater who want the fund to be used for soundproofing measures. An initial $150,000 would go into the fund from the city, the amphitheater and the Orange County Fair Board.

Concerts at the amphitheater would have to be over by 10:30 p.m. on weeknights and by 11 p.m. on Fridays and Saturdays.

An independent noise expert would oversee compliance with the terms of the settlement.