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Testo completo

24CA0072 Northside v Notes Live 09-12-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0072

El Paso County District Court No. 23CV31839

Honorable David Shakes, Judge

Northside Neighbors Association, a Colorado nonprofit corporation, and

Michael Kuhn,

Plaintiffs-Appellants,

Notes Live, Inc., a Colorado corporation, Notes Live Real Estate and

Development LLC, a Colorado limited liability company, and City of Colorado

Springs, Colorado, a municipal corporation,

Defendants-Appellees.

JUDGMENT AFFIRMED

Division II

Opinion by JUDGE FOX

Johnson and Schock, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced September 12, 2024

Covenant Law PLLC, Ian Speir, Colorado Springs, Colorado; First & Fourteenth

PLLC, Edward A. Gleason, Colorado Springs, Colorado, for Plaintiffs-Appellants

Kern Law, LLC, Tobin D. Kern, Littleton, Colorado, for Defendants-Appellees

Notes Live, Inc. and Notes Live Real Estate and Development LLC

Wynetta Massey, City Attorney, Emily Vandenberg, Attorney, Colorado Springs,

Colorado, for Defendant-Appellee City of Colorado Springs

¶ 1 Plaintiffs, Northside Neighbors Association and Michael Kuhn

(Neighbors), challenge a forthcoming open-air concert venue,

developed by Notes Live, Inc. and Notes Live Real Estate and

Development LLC (jointly, Notes Live), that they claim will violate

Colorado’s Noise Abatement Act (NAA). See §§ 25-12-101 to -110,

C.R.S. 2024. Neighbors appeal the district court’s judgment

granting the motions of defendants, Notes Live and the City of

Colorado Springs (the City), to dismiss for lack of subject matter

jurisdiction under C.R.C.P. 12(b)(1).

¶ 2 Concluding that this case does not yet present a justiciable

dispute upon which we can rule, we do not resolve the posed

question of statutory interpretation, which currently splits divisions

of this court. Compare Hobbs v. City of Salida, 2024 COA 25, with

Freed v. Bonfire Ent. LLC, 2024 COA 65. Instead, we affirm the

district court’s conclusion that the dispute is not yet ripe for review.

I. Background

¶ 3 According to Neighbors’ complaint, Notes Live proposed a

development project to City officials to construct and operate

Sunset Amphitheater (the venue). The venue is an outdoor, live

entertainment amphitheater with the capacity to seat 8,000 people.

It is located on the east side of Interstate-25 near the North Gate

Boulevard exit, as shown on the map below:

Project Location

¶ 4 After over a year of proceedings, the City approved the

proposed development. Neighbors, who reside in neighborhoods at

varying distances from the venue, claim they are not appealing the

regulatory process approving the venue’s development; instead,

they assert that the venue will violate the NAA and the City’s

corresponding noise ordinances.

A. Permitting Process and Anticipated Noise Impacts

¶ 5 On November 9, 2022, the City’s Planning Commission

approved a planned unit development (PUD) allowing Notes Live to

construct the venue. The next January, the City Council rejected a

citizen-led administrative appeal challenging the Planning

Commission’s decision and approved the PUD. Neighbors were not

named as appellants in the administrative appeal.

¶ 6 The City’s PUD process required Notes Live to submit, as

relevant here, two sound studies. After the Planning Commission

deemed the first report, prepared by Merck & Hill Consultants, “not

robust enough,” it required Notes Live to provide a second report.

¶ 7 The second report, prepared by LSTN Consultants, concluded

that “without mitigation, the venue may intermittently exceed the

limitations set in the noise code.” It went on to suggest various

physical, electroacoustic, and operational mitigation measures that

could be implemented to bring noise levels into compliance for the

existing neighborhoods that surrounded the venue.

¶ 8 The approved PUD plan incorporated the following sound

mitigation measures recommended in the report:

• constructing sound walls and buildings to act as physical

barriers;

• installing sound detection equipment;

• measuring and reporting sound levels during events;

• entering contracts with performers that require them to

comply with Notes Live’s noise mitigation directions;

• observing specified times for sound checks to limit

disturbances; and

• observing end times of 10:30 p.m. on weeknights and

11:30 p.m. on weekend nights.

Notes Live admitted that no amount of mitigation would prevent

noise violations as to an apartment complex being built next to the

venue, Polaris Junction Apartment Homes, but explained that

arrangements were made with the building’s owner so that notice of

the venue’s operations and sound impact would be incorporated in

prospective tenants’ lease agreements.

The approved PUD also provided that, once concerts begin, if the

sounds emanating from the venue exceed the City’s limits, a “noise

hardship permit” must be secured.

¶ 9 Under Colorado Springs’ city code, the mayor is empowered to

grant permits to exceed the City’s noise limits (which mirror those

in the NAA). See Colo. Springs City Code §§ 9.8.104, 9.8.109. Per

the city code, such hardship permits are available when (1)

additional time is needed to come into compliance with the City’s

noise limitations, or (2) the source of noise is temporary and cannot

comply with the noise limitations. Id. § 9.8.109. For the mayor to

have authority to grant the hardship permit, there must be no other

reasonable alternative, and the mayor is authorized to impose any

conditions or requirements necessary to minimize adverse effects to

the surrounding neighborhood and community. Id.

¶ 10 Neighbors allege that the City has an unspoken practice of

granting “blanket” hardship permits annually for repeat applicants.

The City and Notes Live both aver (with record support) that the

City has not yet issued any hardship permits for the venue. On

appeal, the parties represent that the first concert took place on

August 9, 2024 — mere weeks before the announcement of this

opinion.

B. Neighbors’ Claims and their Dismissal

¶ 11 Neighbors filed a complaint against Notes Live and the City

seeking declaratory judgment under C.R.C.P. 57 and injunctive

relief. Neighbors sought judgment against Notes Live declaring that

(1) the venue constitutes a public nuisance, and (2) the noise study

prepared by LSTN is legally inadequate. As to the City, Neighbors

asked for judgment declaring that (1) the city code provision

allowing for hardship permits, Colo. Springs City Code § 9.8.109, is

preempted by the NAA; and (2) the City’s purported policy of

granting annual “blanket” hardship permits violates the city code

and the NAA.

¶ 12 In addition to the requested declarations, Neighbors asked for

preliminary and permanent injunctive relief as follows:

• that Notes Live cease constructing the venue and/or

conducting events until it can demonstrate compliance

with the NAA;

• that the court commission and supervise an “objective,

legally compliant” noise study;

• that the City delete its hardship permit code provision;

and

• that the City be barred from permitting noise levels in

excess of the NAA.

¶ 13 The City and Notes Live moved to dismiss Neighbors’

complaint under Rule 12(b)(1), asserting that there was not yet a

justiciable controversy. The district court granted the respective

motions to dismiss, finding that the issue was not justiciable due to

lack of an actual injury, thus depriving the court of subject matter

jurisdiction to proceed. To the extent the complaint challenged the

City’s decision to approve the venue, the district court said, that

challenge was brought too late.

¶ 14 Neighbors appeal the dismissal orders.

II. Subject Matter Jurisdiction

¶ 15 On appeal, Neighbors claim that the court’s orders created an

untenable paradox wherein their claims were simultaneously

brought too early and too late. But after untangling Neighbors’

various claims for relief, we disagree.

¶ 16 Neighbors assert that their claims do not challenge the City’s

approval of the venue’s development under C.R.C.P. 106. This is

unsurprising given that such claims needed to be brought within

twenty-eight days of when the City approved the project. See Freed,

¶ 10. Neighbors do not dispute that they filed their complaint

almost eight months after the City approved the PUD. But to the

extent that Neighbors’ complaint challenged the PUD approval —

and specifically, the competence of the LSTN noise report — that

argument needed to be raised within twenty-eight days of the City’s

approval of the project. See C.R.C.P. 106(b); see also Brown v.

Walker Com., Inc., 2022 CO 57, ¶ 46 (Rule 106(b)’s twenty-eight-day

filing requirement is a “strict jurisdictional limitation,” and therefore

that deadline is not subject to equitable tolling or excusable

neglect). We agree with the district court’s Rule 106 assessment on

that narrow ground.

¶ 17 To the extent that Neighbors’ claims pertained to the City’s

purported grant of a “blanket” hardship permit and to Notes Live’s

imminent NAA violations, they relied on facts that have not yet

occurred (or more precisely, that occurred after the perfection of

this appeal). As of the district court’s orders and our appellate

review, based on the record before us, no permits or hardship

permits had been issued and no concerts exceeding statutory noise

limitations had occurred.

¶ 18 Contrary to Neighbors’ framing, the bottom line is that one of

their claims for relief was brought too late. The rest were brought

too early because they relied on events that have not yet happened.

Those claims — which appear to be the linchpin of Neighbors’

appellate arguments — implicate ripeness and standing doctrines,

on which the court’s subject matter jurisdiction to act depended.

Therefore, we begin with that inquiry.

A. Justiciability Principles and Standard of Review

¶ 19 To have standing, a plaintiff must allege an injury in fact to a

legally protected interest. Weld Cnty. Bd. of Cnty. Comm’rs v. Ryan,

2023 CO 54, ¶ 9. Claimed injuries that are a mere “remote

possibility” do not confer standing. Id. at ¶ 10 (citation omitted).

¶ 20 A separate, though related, prerequisite to justiciability is

ripeness. Zook v. El Paso County, 2021 COA 72, ¶ 15. A court

lacks subject matter jurisdiction to decide an issue that is not ripe

for adjudication. Id. at ¶ 7. Ripeness requires that there be an

actual case or controversy between the parties that is sufficiently

immediate and real so as to warrant adjudication. Jessee v.

Farmers Ins. Exch., 147 P.3d 56, 59 (Colo. 2006). A case is not ripe

if uncertainty exists regarding future facts relevant to the dispute,

the claimed injury is speculative and may never occur, or a pending

action might resolve the issue prior to the court’s determination.

See Stell v. Boulder Cnty. Dep’t of Soc. Servs., 92 P.3d 910, 914 n.6

(Colo. 2004); Zook, ¶ 9. In determining whether an issue is ripe,

courts consider the hardship to the parties if relief is withheld and

the fitness of the issues for judicial decision, which often comes

down to whether the record is adequate to permit effective review.

Stell, 92 P.3d at 915. “We determine ripeness on the basis of the

situation at the time of review, not the situation existing when the

trial court acted.” Developmental Pathways v. Ritter, 178 P.3d 524,

534 (Colo. 2008). But in doing so, we are limited to the record

before the district court at the time of its ruling. Stell, 92 P.3d at

915.

¶ 21 The declaratory judgment statute provides a means to resolve

uncertainty regarding rights between parties that a court might not

otherwise consider. See Bd. of Dirs., Metro Wastewater Reclamation

Dist. v. Nat’l Union Fire Ins. Co. of Pittsburgh, 105 P.3d 653, 656

(Colo. 2005). Section 13-51-102, C.R.S. 2024, authorizes district

courts “to settle and to afford relief from uncertainty and insecurity

with respect to rights, status, and other legal relations; and it is to

be liberally construed and administered.” See also C.R.C.P. 57(k).

¶ 22 Nevertheless, this grant of authority does not allow a court to

consider a case that is not justiciable. Nat’l Union, 105 P.3d at 656.

In other words, where parties seek declaratory relief, an actual

controversy must exist. Brookhart v. Reaman, 2023 COA 93, ¶ 19.

The mere possibility of a future claim is insufficient. Schwartz v.

Schwartz, 183 P.3d 552, 553 (Colo. 2008). A declaratory judgment

“calls, not for an advisory opinion upon a hypothetical basis, but for

an adjudication of present right upon established facts.” Cacioppo

v. Eagle Cnty. Sch. Dist. Re-50J, 92 P.3d 453, 467 (Colo. 2004)

(citation omitted). “No court can appropriately adjudicate a matter

— even one for declaratory judgment — ‘in the absence of a showing

that a judgment, if entered, would afford the plaintiff present

relief.’” Id. (citation omitted).

¶ 23 In the nuisance context, Colorado law prohibits injunctive

relief against a threatened nuisance when it is possible that the

activity might be accomplished lawfully, especially where future

injunctive relief remains available if the threatened nuisance does,

in fact, ripen into one. See Green v. Castle Concrete Co., 509 P.2d

588, 591 (Colo. 1973) (“[B]road injunctive powers may not be used

in advance to prohibit lawful business activity which may not be a

nuisance.”); see also Ryan v. Pitkin Iron Corp., 444 F.2d 717, 719

(10th Cir. 1971).

¶ 24 “We apply a mixed standard of review to a district court’s

dismissal of a claim under C.R.C.P. 12(b)(1) for lack of subject

matter jurisdiction.” Save Cheyenne v. City of Colorado Springs,

2018 COA 18, ¶ 61. We review the district court’s factual findings

for clear error and its legal conclusions de novo. Id.

¶ 25 We may consider jurisdictional prerequisites at any time

during the proceedings. See Hickenlooper v. Freedom from Religion

Found., Inc., 2014 CO 77, ¶ 7. We review de novo whether a

plaintiff has established standing, Colo. State Bd. of Educ. v. Adams

Cnty. Sch. Dist. 14, 2023 CO 52, ¶ 19, and whether an issue is ripe

for review, Zook, ¶ 6.

B. State and City Noise Laws

¶ 26 In adopting the NAA, the General Assembly sought to

“establish statewide standards for noise level limits for various time

periods and areas,” the violation of which “constitutes a public

nuisance.”

§ 25-12-101. Neighbors point to NAA section 25-12-

104, C.R.S. 2024 — which provides a cause of action in equity “to

abate and prevent” nuisances — and the City’s corresponding code

provisions (Colo. Springs City Code §§ 9.8.101 to 9.8.104) as the

source of relief for their claimed harm. Section 25-12-104, as

relevant here, provides:

Whenever there is reason to believe that a

nuisance exists . . . any . . . resident of the

state may maintain an action in equity in the

district court of the judicial district in which

the alleged nuisance exists to abate and

prevent such nuisance and to perpetually

enjoin the person conducting or maintaining

the same and the owner, lessee, or agent of the

building or place in or upon which such

nuisance exists from directly or indirectly

maintaining or permitting such nuisance.

Property that is residentially zoned may not radiate noise

exceeding 55 db(A) during the day (7 a.m. to 7 p.m.) and 50 db(A) at

night (7 p.m. to 7 a.m.). § 25-12-103(1), C.R.S. 2024. Property that

is commercially zoned may not radiate noise exceeding 60 db(A)

during the day and 55 db(A) at night. Id. “[N]oise radiating from a

property line at a distance of twenty-five feet or more therefrom in

excess of [the noise limit] shall constitute prima facie evidence that

such noise is a public nuisance.” Id. For purposes of this opinion,

we need not decide whether the venue, which is zoned “PUD-

Planned Unit Development-Commercial High Rise,” is residentially

or commercially zoned within the meaning of the NAA.

¶ 27 Nothing in this section contemplates a prospective declaration

for a future or threatened nuisance. Rather, as is stated three

times in the statutory text, a nuisance must exist before the court

can act. See In re Marriage of Oberg, 900 P.2d 1267, 1270 (Colo.

App. 1994) (referring to a dictionary to conclude that “existing”

means an actual or present occurrence); Kinslow v. Mohammadi,

2024 CO 19, ¶ 11 (if a statute’s language is clear and

unambiguous, we apply it as written).

¶ 28 Relatedly, the General Assembly has expressly provided that

the NAA “shall not be construed to preempt or limit the authority of

any municipality or county to adopt standards that are no less

restrictive” than those it established. § 25-12-108, C.R.S. 2024

(emphasis added). The City’s noise limitations are generally

consistent with the NAA. See Colo. Springs City Code § 9.8.104.

III. Application

¶ 29 Applying de novo review based on the record before us, Save

Cheyenne, ¶ 61, we conclude that Neighbors’ claims fail to allege a

currently justiciable issue or an existing legal controversy. See

Green, 509 P.2d at 591 (declining to enjoin activity at a quarry

operation where speculation about the alleged “future harmful

effects” were not based on “any actual occurrences”). Because the

district court properly dismissed the complaint for lack of subject

matter jurisdiction under Rule 12(b)(1), we affirm.

A. The Claims Against Notes Live Present a Future and

Contingent Controversy

¶ 30 Neighbors are correct that a violation of the NAA’s

“establish[ed] statewide standards for noise level limits for various

time periods and areas . . . constitutes a public nuisance.” § 25-12-

101. They are equally correct that section 25-12-104 provides a

cause of action in equity “to abate and prevent” nuisances and to

enjoin the person creating the nuisance from doing so. The

problem here is not what the NAA says (or does not say); the

problem is that Notes Live’s alleged noise violations have yet to

occur, may not occur at all, or may occur in a different way than

anticipated.

¶ 31 For example, the LSTN report concluded that electroacoustic

and physical mitigation efforts, together, could bring the venue into

compliance with the NAA, even at the most restrictive noise limit for

residential zones. Accordingly, the approved PUD incorporated

those mitigation measures. The study and approved PUD provided

that noise monitoring must be performed in real time and reported

to the City to monitor the effectiveness of these measures. Further,

the noise level emanating from any particular event depends on the

touring sound system used, which might require assessment of

noise violations on a concert-by-concert basis. Because of these

contingencies, Neighbors’ asserted facts offered to prove the

“imminence” of a noise violation are insufficient to establish

standing and ripeness. Without a concrete injury fit for judicial

review, the district court had no power to grant Neighbors’

requested relief. See Green, 509 P.2d at 591; Ryan, ¶ 10.

¶ 32 We are aware that by the announcement of this opinion, the

first concert at the venue may well have occurred. The parties

generally agree that the first concert occurred on August 9, 2024,

and as such, Neighbors might have been injured by noise exceeding

the prescribed limits. But even so, our appellate record is

insufficient to allow for effective review based on the foregoing

contingencies. Even determining ripeness based on the situation at

the time of our review, Developmental Pathways, 178 P.3d at 534,

this appeal, as filed and on the record before us, is not fit for

effective review. See Stell, 92 P.3d at 915.

¶ 33 Because Neighbors’ claims depend on future and contingent

facts (or facts that occurred after this appeal was filed), there is no

justiciable controversy for this court to resolve as to Notes Live’s

prospective noise violations. Neighbors should file suit if and when

documented violations occur. See Green, 509 P.2d at 591

(Withholding injunctive relief before the threatened nuisance

becomes one “preserves to the complaining party the right to enjoin

the activity if it in fact proves to be a nuisance.”).

¶ 34 Finally, as to the Polaris Junction Apartment Homes,

Neighbors point to Notes Live’s admission that it will not be possible

to comply with applicable noise limits as to that property. But

Neighbors have not alleged that any of their members reside there.

Neighbors lack standing to litigate a claimed injury to a nonparty.

See Bd. of Educ., ¶ 21 (citing Wimberly v. Ettenberg, 570 P.2d 535,

539 (Colo. 1977)).

B. The Claims Against the City Also Present a Future and

Contingent Controversy

¶ 35 Neighbors’ claims against the City present similar justiciability

problems. For one thing, our appellate record contains no

application by Notes Live for a hardship permit under section

9.8.109 of the city code. Relatedly, there is no record that the City

(or its agent) approved a hardship permit for the venue. In fact, an

April 2023 letter responding to an inquiry from Neighbors’ counsel

unequivocally says:

You . . . ask whether the City has in fact

granted a hardship permit to the Sunset

Amphitheater. The answer to this question is

no. The Sunset Amphitheater has neither

applied for nor received a noise hardship

permit under City Code § 9.8.109. As the

venue does not currently exist, it is unknown

whether events at the venue will exceed

allowable decibel limits such that a permit

would be required under City ordinances.

Further . . . a hardship permit can only be

submitted when the required details of the

specific event are known.

¶ 36 While it is possible that the City (or its agent) could grant

Notes Live a hardship permit, the details of any application and

associated public proceedings are unknown. Even the claim for a

judicial declaration that the hardship permit provision of the city

code is preempted by the NAA must arise from an injury in fact.

See Freed, ¶ 20 (citing State v. Hill, 2023 CO 31, ¶ 10). Thus,

absent an existing injury caused by an actual hardship permit, a

declaratory judgment claim under C.R.C.P. 57 is not justiciable.

See Schwartz, 183 P.3d at 553.

¶ 37 Neighbors try to circumvent this problem by noting that even

absent a permit, the policy of issuing hardship permits on an

annual basis exists now. Even assuming that such a policy exists,

Neighbors have not yet suffered any injury in fact from the

existence of the claimed policy. At most, Neighbors face the risk

that the City might approve one or more hardship permits; this

allegation, at best, identifies a speculative future injury.

¶ 38 We are not persuaded by Neighbors’ reliance on Board of

County Commissioners v. Bowen/Edwards Associates, Inc., 830

P.2d 1045 (Colo. 1992), for the proposition that it can secure

injunctive relief before harm occurs. In that case, La Plata County

enacted regulations declaring it was unlawful to construct or install

an oil and gas facility within the unincorporated area of the County

without first obtaining a permit. Id. at 1050. Plaintiff needed to

immediately comply with the regulation or risk a penalty for

noncompliance. Id. at 1053. The court concluded that plaintiff met

the jurisdictional requirement for standing because the regulation

threatened to injure plaintiff’s present or imminent activities. Id. In

contrast, Neighbors do not point to a present or imminent nuisance

under the NAA or the city code, as relevant to this appeal. All the

claimed injuries are merely anticipated, and if and how they will

manifest remains to be seen. Thus, Bowen/Edwards is

distinguishable.

¶ 39 Neighbors also rely on Zoning Board of Adjustment v. DeVilbiss,

729 P.2d 353 (Colo. 1986), in support of their argument that

waiting too long to seek relief might deprive them of a judicial

remedy. True, the DeVilbiss court concluded that claims were moot

when the challenged facility had been built and became operational.

Id. at 355-56. But there, the DeVilbiss plaintiffs were pursuing a

Rule 106 claim challenging the zoning board’s actions. Id. at 354.

Neighbors admit that they did not file a Rule 106 action challenging

the City’s PUD approval. They assert on appeal that their primary

challenges need not have been brought via such an action because

the NAA provides another avenue for relief. And it will in time,

assuming an actual violation eventually occurs. Accordingly,

DeVilbiss is distinguishable.

¶ 40 While this action cannot serve as a backdoor to bring claims

challenging components of the City’s PUD approval, Neighbors are

free to challenge the City’s issuance of a “blanket” hardship permit

(if one comes into existence) within twenty-eight days of its issuance

under Rule 106.

¶ 41 Because the details of the future contingencies (that Notes Live

and the City will, respectively, violate the NAA by hosting concerts

that violate established noise limits and by issuing hardship

permits allowing such events) are not yet known, the case is not

ripe for adjudication. See Theobald v. Bd. of Cnty. Comm’rs, 644

P.2d 942, 950 (Colo. 1982) (without an allegation that the property

owner applied for and had been denied a proposed use of its

property, the claims did not present an actual controversy for

adjudication). Neighbors’ declaratory judgment claims fail to allege

a currently justiciable issue or an existing legal controversy. We

thus conclude that the district court properly dismissed the

complaint for lack of subject matter jurisdiction under Rule

12(b)(1).

IV. Other Issues

¶ 42 While this case is the third in a series of appeals asking us to

determine the meaning of a statutory exemption to our state’s NAA,

we need not reach that question here because we do not have

subject matter jurisdiction over the dispute. In any event, it will

ultimately be up to the Colorado Supreme Court to weigh in on

competing interpretations of the statute. Compare Freed, ¶ 42, with

Hobbs, ¶ 36.

¶ 43 Notes Live asks us to award appellate attorney fees,

contending that Neighbors’ appeal is groundless and frivolous. See

§ 13-17-102(4), C.R.S. 2024; C.A.R. 39.1. Under C.A.R. 38(b), the

appellate court may award attorney fees as a sanction for filing a

frivolous appeal. And attorney fees may be awarded under section

13-17-102(4) when the court determines that an attorney or party

brought an action that lacked substantial justification, meaning

that the action was substantially frivolous, groundless, or

vexatious. § 13-17-102(9)(a).

¶ 44 An appeal may be frivolous as filed or as argued. Calvert v.

Mayberry, 2019 CO 23, ¶ 45. An appeal is frivolous as filed if

“there are no legitimately appealable issues because the judgment

below ‘was so plainly correct and the legal authority contrary to the

appellant’s position so clear.’” Id. (quoting Castillo v. Koppes-

Conway, 148 P.3d 289, 292 (Colo. App. 2006)). An appeal is

frivolous as argued if the appellant fails to set forth a coherent

assertion of error supported by legal authority. Id.

¶ 45 Although Neighbors did not prevail, we do not believe their

arguments were frivolous as filed or as argued, especially when this

appeal would have invoked an unsettled question of Colorado law

(and might still) if raised at the proper time. We therefore deny

Notes Live’s request for attorney fees.

V. Disposition

¶ 46 The district court’s judgment is affirmed.

JUDGE JOHNSON and JUDGE SCHOCK concur.

24CA0072 Northside v Notes Live 09-12-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0072
El Paso County District Court No. 23CV31839
Honorable David Shakes, Judge

Northside Neighbors Association, a Colorado nonprofit corporation, and
Michael Kuhn,

Plaintiffs-Appellants,

Notes Live, Inc., a Colorado corporation, Notes Live Real Estate and
Development LLC, a Colorado limited liability company, and City of Colorado
Springs, Colorado, a municipal corporation,

Defendants-Appellees.

JUDGMENT AFFIRMED

Division II
Opinion by JUDGE FOX
Johnson and Schock, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced September 12, 2024

Covenant Law PLLC, Ian Speir, Colorado Springs, Colorado; First & Fourteenth
PLLC, Edward A. Gleason, Colorado Springs, Colorado, for Plaintiffs-Appellants

Kern Law, LLC, Tobin D. Kern, Littleton, Colorado, for Defendants-Appellees
Notes Live, Inc. and Notes Live Real Estate and Development LLC

Wynetta Massey, City Attorney, Emily Vandenberg, Attorney, Colorado Springs,
Colorado, for Defendant-Appellee City of Colorado Springs
¶1 Plaintiffs, Northside Neighbors Association and Michael Kuhn

(Neighbors), challenge a forthcoming open-air concert venue,

developed by Notes Live, Inc. and Notes Live Real Estate and

Development LLC (jointly, Notes Live), that they claim will violate

Colorado’s Noise Abatement Act (NAA). See §§ 25-12-101 to -110,

C.R.S. 2024. Neighbors appeal the district court’s judgment

granting the motions of defendants, Notes Live and the City of

Colorado Springs (the City), to dismiss for lack of subject matter

jurisdiction under C.R.C.P. 12(b)(1).

¶2 Concluding that this case does not yet present a justiciable

dispute upon which we can rule, we do not resolve the posed

question of statutory interpretation, which currently splits divisions

of this court. Compare Hobbs v. City of Salida, 2024 COA 25, with

Freed v. Bonfire Ent. LLC, 2024 COA 65. Instead, we affirm the

district court’s conclusion that the dispute is not yet ripe for review.

I. Background

¶3 According to Neighbors’ complaint, Notes Live proposed a

development project to City officials to construct and operate

Sunset Amphitheater (the venue). The venue is an outdoor, live

entertainment amphitheater with the capacity to seat 8,000 people.

1
It is located on the east side of Interstate-25 near the North Gate

Boulevard exit, as shown on the map below:

Project Location

¶4 After over a year of proceedings, the City approved the

proposed development. Neighbors, who reside in neighborhoods at

varying distances from the venue, claim they are not appealing the

regulatory process approving the venue’s development; instead,

they assert that the venue will violate the NAA and the City’s

corresponding noise ordinances.

2
A. Permitting Process and Anticipated Noise Impacts

¶5 On November 9, 2022, the City’s Planning Commission

approved a planned unit development (PUD) allowing Notes Live to

construct the venue. The next January, the City Council rejected a

citizen-led administrative appeal challenging the Planning

Commission’s decision and approved the PUD. Neighbors were not

named as appellants in the administrative appeal.

¶6 The City’s PUD process required Notes Live to submit, as

relevant here, two sound studies. After the Planning Commission

deemed the first report, prepared by Merck & Hill Consultants, “not

robust enough,” it required Notes Live to provide a second report.

¶7 The second report, prepared by LSTN Consultants, concluded

that “without mitigation, the venue may intermittently exceed the

limitations set in the noise code.” It went on to suggest various

physical, electroacoustic, and operational mitigation measures that

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could be implemented to bring noise levels into compliance for the

existing neighborhoods that surrounded the venue.1

¶8 The approved PUD plan incorporated the following sound

mitigation measures recommended in the report:

• constructing sound walls and buildings to act as physical

barriers;

• installing sound detection equipment;

• measuring and reporting sound levels during events;

• entering contracts with performers that require them to

comply with Notes Live’s noise mitigation directions;

• observing specified times for sound checks to limit

disturbances; and

• observing end times of 10:30 p.m. on weeknights and

11:30 p.m. on weekend nights.

1 Notes Live admitted that no amount of mitigation would prevent

noise violations as to an apartment complex being built next to the
venue, Polaris Junction Apartment Homes, but explained that
arrangements were made with the building’s owner so that notice of
the venue’s operations and sound impact would be incorporated in
prospective tenants’ lease agreements.

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The approved PUD also provided that, once concerts begin, if the

sounds emanating from the venue exceed the City’s limits, a “noise

hardship permit” must be secured.

¶9 Under Colorado Springs’ city code, the mayor is empowered to

grant permits to exceed the City’s noise limits (which mirror those

in the NAA). See Colo. Springs City Code §§ 9.8.104, 9.8.109. Per

the city code, such hardship permits are available when (1)

additional time is needed to come into compliance with the City’s

noise limitations, or (2) the source of noise is temporary and cannot

comply with the noise limitations. Id. § 9.8.109. For the mayor to

have authority to grant the hardship permit, there must be no other

reasonable alternative, and the mayor is authorized to impose any

conditions or requirements necessary to minimize adverse effects to

the surrounding neighborhood and community. Id.

¶ 10 Neighbors allege that the City has an unspoken practice of

granting “blanket” hardship permits annually for repeat applicants.

The City and Notes Live both aver (with record support) that the

City has not yet issued any hardship permits for the venue. On

appeal, the parties represent that the first concert took place on

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August 9, 2024 — mere weeks before the announcement of this