Disputes over Noise Levels from Live Performances

Noise complaints have long been an occupational hazard for venue operators, musicians and concert promoters. The surge in the electronic dance music scene has added to the number of complaints. What might be enjoyable entertainment to one person may sound like a thunderous racket to another.

However, the good news for the music industry is that bringing a successful claim to stop a club, concert hall or outdoor venue, from making a certain level of noise is far easier said than done. A dispute involving a Live Nation venue in Connecticut is a current case in point. Wallingford, CT, has taken steps to turn down the volume at the Toyota Oakdale Theatre. The Oakdale is a well-known concert venue, having hosted thousands since 1954, with acts ranging from Paul Anka to Led Zeppelin.

Getting Noisier

As Oakdale acts transitioned over the years from more acoustic sounds to percussive electronica, the town has received an increasing number of complaints from its residents. Some say their nighttime rest and “quiet enjoyment” has been interrupted by loud drumming and pulsing vibrations. Early last year, the town began negotiating with the theater's owner, Live Nation Worldwide, to come up with a solution.

“The noise is of considerable concern,” said Wallingford Mayor William Dickinson. Under a town ordinance adopted in 2002, the noise in the commercial zone is not allowed to exceed 62 decibels. “We had a noise expert taking readings over the past several months and found that their levels are above where they should be and it has to be corrected,” Dickinson claimed.

Live Nation paid Brooks Acoustics Corp. for its own study, which found the Oakdale “did not exceed the sound emission limits of the Wallingford noise ordinance,” according to Live Nation's lawyers.

After those dueling studies were released, the dispute came to a standstill. Then in December 2104, the town's planning and zoning department issued a cease-and-desist letter. The letter warned the theater that it was violating a special use permit issued in 1989 by holding concerts in an area of the property that was approved for use as a lobby. The town further says the theater is exceeding permitted noise levels and using unapproved parking areas.

According to the letter, the theater must correct its violations or face further legal actions. The town informed the Oakdale that “based upon a site visit [officials] concluded that you are in violation of certain elements of your special permit and associated site plan.”

The cease-and-desist notice aside, town officials, including Councilor Christine Mansfield, said the town “doesn't want to sue anyone.” The Oakdale Theatre, she said, has been “undeniably a great partner over the years, sponsoring community events and local charities.”

Live Nation, which is represented by attorney Joan Molloy of Loughlin Fitzgerald in Wallingford, has filed an appeal. It was expected to argue against the cease-and-desist notice at a meeting of the Zoning Board of Appeals.

Janis Small, corporation counsel for the town, declined to discuss specifics of the case. But in a statement, she said the noise complaints are a serious concern and “the town needs to address it.”

Other Noise Lawsuits

New Haven, CT, lawyer John W. Mills, who has won three sizable noise lawsuit judgments, said the Wallingford dispute is different. “It's based upon alleged violations of a special permit issued to the theater in 1989,” Mills explained. He continued: “Normally, local noise ordinances distinguish between the levels of noise permitted in industrial versus residential areas, but the Wallingford order was based not on the noise ordinance, but where the noise is coming from within the property.”

Noise complaints have been big legal news outside of Connecticut. In February 2014, a rash of noise complaints from residents around the Barclays Center in Brooklyn, NY, prompted the sports arena to install soundproofing equipment and ask some of its performers to lower their concert volumes. The venue was hit with $3,200 in fines following one especially loud performance by Jay Z and Kanye West.

In a dispute in New Orleans, a jury decided that a Bourbon Street nightclub wasn't liable for damages claimed by a French Quarter couple who sought $20 million because, they alleged, live music rattled their nerves and diminished their property values. After a seven-day trial, the jury found last September that Funky 544 was not responsible for any damages incurred by plaintiffs Peterson Yokum and Polly Anderson, who live a half-block from the club. In re:'Anderson, 10-06826 (Parish of Orleans, Civil Dist. Ct., Div. N).

In Connecticut, noise complaints that have gone to trial aren't very common. Bridgeport associate city attorney Betsy Edwards said she's been involved in only one such case. Advocate Cecil Young was charged with violating the city's noise ordinance when he heckled its mayor using a bullhorn. Young sued the town, claiming its ordinance enforcement violated his civil rights. But in June 2014, a federal judge issued summary judgment in favor of the city. Edwards successfully argued that the ordinance was enforced “based on the volume” of the noise and not by the content of what Finch was saying.

John W. Mills has won judgments in cases in which he managed to prove the defendants willfully violated local ordinances, including a $200,000 judgment against a Norwalk, CT, bar. But winning such lawsuits, he said, can be difficult and time-consuming. “Unlike most types of lawsuits, where 92% are settled, noise cases don't settle,” Mills said. “The reason is because no one can figure out or relate to what they are worth in terms of [monetary] damages.”

For example, he said, plaintiffs must prove noisemakers have caused some kind of health problem or property damage. And even when a plaintiff meets that burden, most businesses have insurance policies that don't cover noise-related liability, which forces plaintiffs lawyers back into court in an attempt to get the judgment paid.

“For that reason, when I get calls from people about noise complaints, I usually tell them to try to work it out with your town and with the police,” Mills said. “If that doesn't work, I tell them to get back to me in a year.”

Jay Stapleton is the Managing Editor of The Connecticut Law Tribune, an ALM sibling of Entertainment Law & Finance.

Noise complaints have long been an occupational hazard for venue operators, musicians and concert promoters. The surge in the electronic dance music scene has added to the number of complaints. What might be enjoyable entertainment to one person may sound like a thunderous racket to another.

However, the good news for the music industry is that bringing a successful claim to stop a club, concert hall or outdoor venue, from making a certain level of noise is far easier said than done. A dispute involving a Live Nation venue in Connecticut is a current case in point. Wallingford, CT, has taken steps to turn down the volume at the Toyota Oakdale Theatre. The Oakdale is a well-known concert venue, having hosted thousands since 1954, with acts ranging from Paul Anka to Led Zeppelin.

Getting Noisier

As Oakdale acts transitioned over the years from more acoustic sounds to percussive electronica, the town has received an increasing number of complaints from its residents. Some say their nighttime rest and “quiet enjoyment” has been interrupted by loud drumming and pulsing vibrations. Early last year, the town began negotiating with the theater's owner, Live Nation Worldwide, to come up with a solution.

“The noise is of considerable concern,” said Wallingford Mayor William Dickinson. Under a town ordinance adopted in 2002, the noise in the commercial zone is not allowed to exceed 62 decibels. “We had a noise expert taking readings over the past several months and found that their levels are above where they should be and it has to be corrected,” Dickinson claimed.

Live Nation paid Brooks Acoustics Corp. for its own study, which found the Oakdale “did not exceed the sound emission limits of the Wallingford noise ordinance,” according to Live Nation's lawyers.

After those dueling studies were released, the dispute came to a standstill. Then in December 2104, the town's planning and zoning department issued a cease-and-desist letter. The letter warned the theater that it was violating a special use permit issued in 1989 by holding concerts in an area of the property that was approved for use as a lobby. The town further says the theater is exceeding permitted noise levels and using unapproved parking areas.

According to the letter, the theater must correct its violations or face further legal actions. The town informed the Oakdale that “based upon a site visit [officials] concluded that you are in violation of certain elements of your special permit and associated site plan.”

The cease-and-desist notice aside, town officials, including Councilor Christine Mansfield, said the town “doesn't want to sue anyone.” The Oakdale Theatre, she said, has been “undeniably a great partner over the years, sponsoring community events and local charities.”

Live Nation, which is represented by attorney Joan Molloy of Loughlin Fitzgerald in Wallingford, has filed an appeal. It was expected to argue against the cease-and-desist notice at a meeting of the Zoning Board of Appeals.

Janis Small, corporation counsel for the town, declined to discuss specifics of the case. But in a statement, she said the noise complaints are a serious concern and “the town needs to address it.”

Other Noise Lawsuits

New Haven, CT, lawyer John W. Mills, who has won three sizable noise lawsuit judgments, said the Wallingford dispute is different. “It's based upon alleged violations of a special permit issued to the theater in 1989,” Mills explained. He continued: “Normally, local noise ordinances distinguish between the levels of noise permitted in industrial versus residential areas, but the Wallingford order was based not on the noise ordinance, but where the noise is coming from within the property.”

Noise complaints have been big legal news outside of Connecticut. In February 2014, a rash of noise complaints from residents around the Barclays Center in Brooklyn, NY, prompted the sports arena to install soundproofing equipment and ask some of its performers to lower their concert volumes. The venue was hit with $3,200 in fines following one especially loud performance by Jay Z and Kanye West.

In a dispute in New Orleans, a jury decided that a Bourbon Street nightclub wasn't liable for damages claimed by a French Quarter couple who sought $20 million because, they alleged, live music rattled their nerves and diminished their property values. After a seven-day trial, the jury found last September that Funky 544 was not responsible for any damages incurred by plaintiffs Peterson Yokum and Polly Anderson, who live a half-block from the club. In re:'Anderson, 10-06826 (Parish of Orleans, Civil Dist. Ct., Div. N).

In Connecticut, noise complaints that have gone to trial aren't very common. Bridgeport associate city attorney Betsy Edwards said she's been involved in only one such case. Advocate Cecil Young was charged with violating the city's noise ordinance when he heckled its mayor using a bullhorn. Young sued the town, claiming its ordinance enforcement violated his civil rights. But in June 2014, a federal judge issued summary judgment in favor of the city. Edwards successfully argued that the ordinance was enforced “based on the volume” of the noise and not by the content of what Finch was saying.

John W. Mills has won judgments in cases in which he managed to prove the defendants willfully violated local ordinances, including a $200,000 judgment against a Norwalk, CT, bar. But winning such lawsuits, he said, can be difficult and time-consuming. “Unlike most types of lawsuits, where 92% are settled, noise cases don't settle,” Mills said. “The reason is because no one can figure out or relate to what they are worth in terms of [monetary] damages.”

For example, he said, plaintiffs must prove noisemakers have caused some kind of health problem or property damage. And even when a plaintiff meets that burden, most businesses have insurance policies that don't cover noise-related liability, which forces plaintiffs lawyers back into court in an attempt to get the judgment paid.

“For that reason, when I get calls from people about noise complaints, I usually tell them to try to work it out with your town and with the police,” Mills said. “If that doesn't work, I tell them to get back to me in a year.”

Jay Stapleton is the Managing Editor of The Connecticut Law Tribune, an ALM sibling of Entertainment Law & Finance.