Neighbors sue to stop Swap Meet concerts
Test results from a $40 Radio Shack sound meter apparently persuaded a judge to modify a preliminary injunction and allow Midway Swap Meet to play amplified music until 11 p.m. on Fridays and Saturdays — at least through July.
Flathead County District Court Judge Stewart Stadler had granted a preliminary injunction in June 2011 halting amplified music at the former Midway Drive-in Theater site on Highway 40 after 5 p.m.
The order came at the request of Glacier Peaks RV Park, Helen McLouth and Deborah McLouth, who sued the Swap Meet on June 15, 2011, after 6,000 people attended the Swap Meet’s grand opening 10 days earlier. The plaintiffs filed three counts of private nuisance, claiming noise from amplified music was “offensive to the senses.”
Helen McLouth, 74, is a managing member of Glacier Peaks and has been a permanent resident at the RV park since 1994. Deborah McLouth resides in a cabin on the 9.3-acre site next to the Swap Meet.
Claiming the concerts went on to 9 p.m. on the Swap Meet’s first two weekends in 2011, despite ads saying they would only operate to 5 p.m., Helen said the loud music made it difficult to read or work and shook her home, knocking items off shelves. She said RV park customers threatened to leave and named nine residents who complained about the music.
Stadler issued a temporary restraining order on June 16 ordering no amplified music from 5 to 11 p.m., but Glacier Peaks’ attorney filed a motion for contempt 11 days later claiming the Swap Meet music continued for 30 minutes past 5 p.m. on two nights.
The Swap Meet owners failed to show up at a June 27 hearing about the alleged violations, and Stadler granted the preliminary injunction. Glacier Peaks’ attorney also filed a motion for contempt for violating the temporary restraining order.
Swap Meet co-owner Michael Medlin changed attorneys and responded to the filings, saying he didn’t attend the June 27 meeting because he thought he had 20 days to respond. His attorney also responded to the plaintiffs’ claims about loss of reputation and having a “peaceful park.”
The Swap Meet is not out of character in the neighborhood, they claimed, citing rodeo and other outdoor events at the nearby the Blue Moon Nite Club lasting until 11 p.m. A drive-in theater had operated at that location sometimes until 1 a.m. for half a century, they said.
The noise experienced by the plaintiffs, they claimed, “is not only minimal but is no different from a myriad other noises that have been present in the area for years.”
Citing current “economic turmoil,” the Swap Meet claimed the preliminary injunction would hurt their “fledgling business.” Medlin said he had canceled events and spent a lot of money trying to resolve the issue, including moving the stage to the other end of the 9.5-acre site and directing loud speakers away from the RV park.
“It is questionable whether it will be able to stay in business if its ability to host live music is drastically reduced by the injunction,” their attorney said.
Stadler did not hold the Swap Meet owners in contempt, but he denied their motion to set aside the preliminary injunction during a hearing in January. He also requested more information on sound levels.
The Swap Meet conducted sound tests on April 26. The band HumanLab, Medlin and Swap Meet co-owner Marco Forcone’s rock group, played on the new stage while sound levels were measured around the site.
While the level peaked at 101 decibels in front of the stage, it was 58-63 dB at the RV park boundary behind the movie screen, 68-80 dB near the RV park’s entrance and 50-53 dB inside a car parked in the middle of the Swap Meet. The sound level climbed to 82 dB near the RV park entrance when a truck passed by on Highway 40.
For comparison, the defendants measured sound levels the next day at a District Court trial. Measured from the back of the court room, the sound meter registered 58-61 dB while testimony was being taken from the stand.
Glacier Peaks’ attorney responded by noting the Radio Shack sound meter was not as reliable as a $400 ANSI-certified meter. Helen McLouth claimed the music played for the April 26 sound test was “not the bass riddled live hard rock that she experienced last summer.” She qualified the music as “easy listening.”
Swap Meet’s attorney responded by noting that the type of music is irrelevant, that “Metallica can be played quietly” and “James Taylor can be played at deafening volumes.”
Stadler issued his modified preliminary injunction on June 25. Leaving the preliminary injunction in full force, Stadler allowed the Swap Meet to play music amplified to the same levels as during the April sound test on Fridays from 5 to 11 p.m. and on Saturdays from 10 a.m. to 11 p.m. only during July.
He also said he’d attend some of the events unannounced to check things out.