322 F.3d 125 (2nd Cir. 2003), 02-7593, Howard Opera House Associates v. Urban Outfitters, Inc.

Docket Nº:02-7593
Citation:322 F.3d 125
Party Name:HOWARD OPERA HOUSE ASSOCIATES and O'NEILL, CRAWFORD & GREEN, P.C., Plaintiffs-Counter-Defendants-Appellees, and CITY OF BURLINGTON, VT, Intervenor-Plaintiff-Appellee, v. URBAN OUTFITTERS, INC., Defendant-Counter-Claimant-Appellant.
Case Date:March 05, 2003
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 125

322 F.3d 125 (2nd Cir. 2003)

HOWARD OPERA HOUSE ASSOCIATES and O'NEILL, CRAWFORD & GREEN, P.C., Plaintiffs-Counter-Defendants-Appellees,

and

CITY OF BURLINGTON, VT, Intervenor-Plaintiff-Appellee,

v.

URBAN OUTFITTERS, INC., Defendant-Counter-Claimant-Appellant.

No. 02-7593

United States Court of Appeals, Second Circuit

March 5, 2003

Argued: January 13, 2003

Page 126

Appeal from the United States District Court for the District of Vermont (William K. Sessions III, Judge) granting judgment in favor of plaintiffs-counter-defendants-appellees Howard Opera House Associates and O'Neill, Crawford & Green, P.C. on claims of nuisance, breach of contract, and breach of the implied covenant of good faith and fair dealing, and ordering defendant-counter-claimant-appellant Urban Outfitters, Inc. to refrain from operating a sound system in a manner that "substantially and unreasonably interferes" with other tenants' use of their space or unreasonably disturbs other tenants.

MARC B. HEATH, Downs Rachlin Martin PLLC, Burlington, VT (David E. Bond, Downs Rachlin Martin PLLC, Burlington, VT, on brief), for Defendant-Counter-Claimant-Appellant.

ERIC S. MILLER, Sheehey Furlong & Behm P.C., Burlington, VT (R. Jeffrey Behm, Sheehey Furlong & Behm P.C., Burlington, VT, on brief), for Plaintiff-Counter-Defendant-Appellee Howard Opera House Associates.

EUGENE M. BERGMAN, Office of the City Attorney, Burlington, VT, for Intervenor-Plaintiff-Appellee City of Burlington, VT.

Before: KEARSE and B.D. PARKER, JR., Circuit Judges, and RAKOFF, District Judge.[*]

PER CURIAM:

Defendant-counter-claimant-appellant Urban Outfitters, Inc. ("Urban Outfitters") Page 127

appeals from a series of related orders of the district court for the District of Vermont (William K. Sessions III, Judge), culminating in judgment for plaintiffs-counter-defendants-appellees Howard Opera House Associates ("Howard") and O'Neill, Crawford & Green, P.C. For the reasons stated below, we affirm the judgment in most respects but remand for clarification of the injunctive relief ordered by the district court. The pertinent facts are as follows: Urban Outfitters is a retail chain targeting purchasers between the ages of eighteen and twenty-five. In each of its stores, Urban Outfitters plays music that it believes will appeal to those individuals. In 1998, Urban Outfitters and Howard executed a lease (the "Lease") that would enable Urban Outfitters to operate a store on premises owned by Howard for a period of ten years, with an option to renew for five more years. The Lease had no express noise restrictions but, inter alia, required Urban Outfitters to comply "with all applicable Laws." One such law is § 21-13 of the Burlington Code of Ordinances, which provides in relevant part:

. . . It shall be unlawful for any person to make or cause to be made any loud or unreasonable noise. Noise shall be deemed to be unreasonable when it disturbs, injures or endangers the peace or health of another or when it endangers the health, safety or welfare of the community. Any such noise shall be considered to be a noise disturbance and a public nuisance.

Burlington Code of Ordinances § 21-13(b)(1). Urban Outfitters first began playing music in the...

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