Noise is a public health hazard, and amplified sound from outdoor amphitheaters has been a societal concern for decades. As my readers know, I believe in balancing rights; no one always wins or always loses. However, when the issues are polarizing it can be difficult to find a balance that is acceptable to and respected by all stakeholders. I started a three part series of blawgs highlighting the various and sometimes polarizing issues based on the current litigation regarding the newly opened Ford Amphitheater in Colorado Springs, CO. The first article focused on Environmental Noise Policy, the second on tension between Nuisance Laws and Permitting of Outdoor Amphitheaters. Today’s final blawg in the series looks into the powerful tool of Inverse Condemnation to “cut through the noise.”
Current status of the Ford Amphitheater litigation.
In September 2024, the Colorado Court of Appeals ruled Northside Neighbor’s (a group of concerned adjacent landowners) public nuisance and other claims against Venu (owner of the Ford Amphitheater) weren’t yet ripe based on the record when the appeal was filed. There are unresolved issues regarding the legality of a “blanket permit” issued by the City, and whether the noise levels comply with the State and City noise codes. At an October open house Venu executives stated they “want to be good neighbors,” recognize noise has an “impact on people” and would “look at ways to address concerns” including “additional walls, sound curtains and a potential lowering of volume.”
The Ford Amphitheater’s 2025 season starts in two months. Although I hope the parties can come to a mutually satisfactory resolution, these issues are still unresolved. If Northside can successfully challenge the blanket permit and/or prove excess noise, then the door is open for nuisance claims. Furthermore, separate from nuisance, there is a very effective legal strategy grounded in the U.S. Constitution available to Northside and other property owners: Inverse Condemnation.
What is Inverse Condemnation?
The Takings Clause of Fifth Amendment reads, in pertinent part: No person shall be. . . deprived of . . . property, without due process of law, nor shall private property be taken for public use, without just compensation.”
If a government desires private property it can institute an eminent domain proceeding to acquire the subject property through mutual contract, or through a court proceeding to establish just compensation. If the government takes private property with just compensation, the owner can institute a claim for inverse condemnation, which is the flip side of eminent domain. The definition of property includes both real and personal property, tangible and intangible.
The Constitutional basis is what gives inverse condemnation such power: federal, state and local government legislation cannot usurp the rights of property owners under the U.S. Constitution, and the statute of limitations is four years.
Pennsylvania Coal Co. v. Mahon 260 U.S. 393 (1922) established the principal that a regulation that diminishes property value is a “taking” regardless of whether a physical invasion or formal appropriation occurs. United States v. Causby, 328 U.S. 256 (1946) established that noise can be a taking, even if temporary. First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304 (1987) held that if a taking has occurred pursuant to a regulation, the Takings Clause requires compensation during the time a regulation is in effect, even if later repealed or invalidated by a court.
Accordingly, inverse condemnation can apply even if there is a temporary taking, such as the noise from a concert, if it devalues the property and/or makes it uninhabitable. It doesn’t make a difference whether the government owns the concert venue, if it effectively rezones the venue property use in a manner that affects other properties, inverse condemnation may be available. In the Colorado Springs case, even if the mayor’s “hardship permit” is overturned, there is liability while it was in effect.
Furthermore, if the plaintiffs are concerned the state court might be unfairly biased towards a prominent wealthy resident, they can proceed in federal court. . Knick v. Township of Scott, Pennsylvania (2019) ruled that landowners are not required to go to state court first. However, if one pursues an inverse condemnation claim in state court and loses, the federal court may well bar the claim because the full faith and credit statute required the federal court to give preclusive effect to the state court’s decision under San Remo Hotel, L. P. v. City and County of San Francisco, 545 U. S. 323 (2005).
Potential remedies include loss of value, costs to mitigate (e.g. soundproofing), business loss (e.g. if a rental property), costs to relocate (e.g., costs to rent another property every time there is a concert), unreasonable conduct by government and interest, attorneys’ fees and costs. At the new Ford Amphitheater in Colorado Springs the Denver Post reported a realtor said a homeowner might suffer a “5 to 25% reduction in value from the theater.” These damages may also include physical injury (e.g., if permitted loud concerts cause hearing injury).
If the potential of ongoing and recurring damages are significant, that might even induce the venue to be redesigned as indoor with soundproofing. They can have a giant screen with video of the “unparalleled view of the sun setting over Pikes Peak, America’s mountain, right behind the stage as each concert begins.”
Trespass:
In addition, noise that “shakes the foundation” can also give rise to trespass claims. Trespass may also have certain advantages over nuisance such as no requirement of substantial harm, no balancing test, and the availability of both injunctive relief and damages.
Conclusion:
These public nuisance, permitting, inverse condemnation and trespass issues will be playing out in the ongoing disputes and potential new litigation over the Ford Amphitheater. As noted above, I hope all stakeholders with find a mutually satisfactory resolution. I’ll be following the case and providing updates.
Copyright John Drinkwater 2025 All Rights Reserved
Disclaimer: This content is provided for general informational purposes only, and may not reflect the current law in all jurisdictions. No information contained in this post should be construed as legal advice nor is it intended to be a substitute for legal counsel on any subject matter. Readers should consult their own advisor for legal or other advice.