Plaintiffs’ Response to Motions to Dismiss
Read: Plaintiffs’ Consolidated Response to Defendants’ Motions to Dismiss
Response Exhibit B: Select public record disclosure re “blanket” permits
Response Exhibit C: Legislative history materials for nonprofit-events exception
Plaintiffs have pled and intend to prove that noise levels at all nearby residential communities exceed the limits established by state law. These allegations are not based on speculation about what “might” happen when the concerts start. They are based on Notes Live’s own noise studies and its own admissions. Both Notes Live and the City know, indeed they have always known, that it is impossible for the Venue as presently conceived to comply with state law. That’s why Notes Live told the City that noise mitigation at Polaris Junction “will not be possible.” And it’s why Notes Live took steps, more than a year ago, to ensure that Polaris Junction apartment leases will “reflect” the “sound impact.” In order to put a stop to Notes Live’s illegal and inevitable noise pollution, Plaintiffs have asserted two claims against Notes Live for injunctive and declaratory relief arising under the [Noise Pollution Law].
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For the past several years, if not longer, the City of Colorado Springs has been engaged in an illegal policy and practice of ignoring and trying to evade the requirements of the state Noise Pollution Law…. The City’s policy works like this. Behind the scenes and out of the public eye, City officials cooperate with the owner of a particular facility, instructing the owner to submit an advance list of all activities and events at the facility for an entire year. When the owner submits the list, it doesn’t have to specify noise impacts for particular events, like noise levels, sound amplification, noise monitoring, impacts upon surrounding residents, etc. The submission is never seen by the public. It doesn’t go through City Council or the Mayor. It’s not subject to a public hearing. Instead, the application is routed to an employee of the Colorado Springs Police Department—an individual who, Plaintiffs believe, has no familiarity with the state’s Noise Pollution Law. Upon submission, the police department employee issues the owner a so-called “blanket permit.” This is nothing more than a rubber stamp—a bureaucratic indulgence that purports to authorize a facility to operate free of noise limits year after year in perpetuity….
The City’s ordinance and policy stretch the notion of a temporary “event permit” to the breaking point. City Code § 9.8.108 is illegal under the NPL in the vast majority of its applications; the City’s policy and practice of granting “blanket noise hardship permits” is per se illegal under the NPL; and Plaintiffs request that the Court declare these laws to be illegal and preempted, and enjoin their present and future application.