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What is the lawsuit about?

Northside Neighbors Association v. Notes Live, Inc., No. 2023CV31839 (El Paso County, Colorado)

A group of concerned residents who live on the northside of Colorado Springs have sued Notes Live and the City of Colorado Springs seeking declaratory and injunctive relief against the Sunset Ford Amphitheater, an outdoor music venue built in the middle of a pre-existing residential area. The lawsuit claims the venue is a source of illegal noise pollution. Paragraph 1 of the plaintiffs’ complaint describes the “Nature of the Action” as follows:

This action seeks to abate, prevent, and perpetually enjoin unlawful noise pollution to be emitted by an outdoor concert venue called the “Sunset Amphitheater” (hereafter “Venue”). The Venue, which is currently under construction, is owned and operated by Defendants Notes Live, Inc. and Notes Live Real Estate and Development LLC (collectively “Notes Live”). Notes Live has admitted that the Venue will emit noise pollution in violation of Colorado law. Defendant City of Colorado Springs (“City”) maintains a noise ordinance that allows for noise “hardship permits,” but such permits are prohibited by Colorado law. Worse, City officials have established a behind-the-scenes policy of granting “blanket hardship permits” to the Venue on an annual basis, which also is illegal. Plaintiffs bring this Complaint requesting declaratory and injunctive relief against Notes Live to abate, prevent, and perpetually enjoin the Venue’s construction and operation, unless Notes Live can demonstrate compliance with Colorado’s law against noise pollution. Plaintiffs also request declaratory and injunctive relief against the City, declaring the “hardship permit” provisions of the City’s noise ordinance to be illegal and enjoining the City’s policy of issuing “blanket hardship permits” to the Venue now and in the future.

What is the status of the case now?

The El Paso County District Court dismissed Northside Neighbors’ complaint, ruling that the City’s local noise ordinance and its allowance for “hardship permits” trump state law. Northside has appealed this ruling to the Colorado Court of Appeals, and oral argument in this case is set for September 3, 2024.

While our appeal was pending, the Colorado Court of Appeals issued a published decision in a separate noise-pollution case, Freed v. Bonfire Entertainment, ruling that the state’s noise pollution law trumps local excess-noise permits—the opposite of what the district court ruled in the Northside case. Freed is favorable precedent for Northside’s pending appeal.

Meanwhile, in yet another pending noise-pollution case, Hobbs v. City of Salida, a different division of the Court of Appeals issued a decision that conflicts with Freed. Divergent appellate decisions enhance the odds that the Colorado Supreme Court will become involved. The plaintiff in Hobbs has petitioned for Supreme Court review, and Northside submitted an amicus ("friend of the Court”) brief in support. The amicus brief states:

Amici are Colorado residents ... whose homes are in close proximity to existing or imminent sources of industrial-level noise pollution. Yet amici do not live in industrial areas. They live in what were once quiet residential neighborhoods. Recently, however, something changed. For-profit entertainment companies set their sights on amici’s communities, bought land, and set up shop....

For the intermittent concertgoer, a couple of hours of loud entertainment may not do long-term damage. But for residents like amici, whose homes were established long before these entertainment companies moved in, ongoing exposure to elevated noise levels will cause real physiological and psychological harm....

It was precisely these harms the legislature sought to protect against in the Noise Abatement Act.