Northside v. Notes Live
24CA0072
| Colo. Ct. App. | Sep 12, 2024Background
- Northside Neighbors Association and Michael Kuhn (Neighbors) filed suit to challenge the planned Sunset Amphitheater, an 8,000-seat outdoor venue in Colorado Springs, arguing it would violate Colorado’s Noise Abatement Act (NAA) and related city ordinances.
- The venue's permitting process required two sound studies; the final, by LSTN Consultants, identified potential intermittent excesses of city noise limits but recommended mitigation measures incorporated into the development plan.
- The City of Colorado Springs approved the development and specified in its code that “hardship permits” may be issued if a venue cannot comply with noise limits; at the time of suit, no such permit had been issued for the venue.
- Neighbors sought declaratory judgments and injunctive relief against Noise Live and the City before any concerts had occurred, including claims that the venue would be a nuisance and that city hardship permits, if issued, would violate state law.
- The district court dismissed the case for lack of subject matter jurisdiction under C.R.C.P. 12(b)(1), finding the controversy was not ripe because no actual violation or hardship permit existed yet.
- Neighbors appealed, arguing the dismissal created a paradox wherein their claims were deemed both too early (unripe) and too late (untimely as to the permitting challenge).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Judicial ripeness of challenge to noise violations | Venue will necessarily violate noise laws, justifying pre-emptive relief | No violations or permits yet exist; harm is speculative | Not ripe; future, contingent controversy |
| Timeliness of challenge to PUD/development permit | Claims are not about permit, but future unlawful operation/noise | Challenges to PUD or studies are too late; deadline missed | Claims against permitting process untimely |
| Standing to contest hardship permits or nuisance | Policy of hardship permits and venue threatens concrete, imminent harm | No hardship permit has been issued; no actual injury | No standing without actual, not speculative, injury |
| Preemption of city hardship permits by NAA | City’s blanket hardship permit policy violates/preempted by state NAA | No permit exists; speculative injury; city acts within authority | Not justiciable at this stage |
Key Cases Cited
- Green v. Castle Concrete Co., 509 P.2d 588 (Colo. 1973) (injunctive relief against a threatened nuisance is inappropriate when the alleged nuisance may not materialize)
- Wimberly v. Ettenberg, 570 P.2d 535 (Colo. 1977) (standing requires plaintiff to assert personal injury or injury to an interest protected by law)
- Zoning Bd. of Adjustment v. DeVilbiss, 729 P.2d 353 (Colo. 1986) (mootness where remedy sought is no longer available due to changed circumstances)
- Bd. of County Comm'rs v. Bowen/Edwards Assoc., Inc., 830 P.2d 1045 (Colo. 1992) (standing exists when regulation immediately threatens plaintiff's activities)