Noise is a public health hazard, and amplified sound from outdoor amphitheaters has been a societal concern for decades. This blawg is part of the series on Outdoor Amphitheater Noise. The first article focused on Environmental Noise Policy and highlighted current litigation regarding the newly opened Ford Amphitheater in Colorado Springs, CO.
Most outdoor entertainment venues have specific noise limitations. How does that happen? This article provides a general overview of nuisance legal theories to address noise, how laws and zoning policies are created to permit it, and concludes with an update on the Ford Amphitheater litigation.
1. Public and Private Nuisance Noise
In general, a private nuisance is noise that interferes with the use or enjoyment of property and has roots going back centuries. It gives rise to a tort claim. Courts use a balancing test and consider factors such as extent and character of the harm, the social value and suitability of the conduct, and the costs to address it. Remedies can include temporary or permanent injunctions, and damages.
Public nuisance is a similar doctrine to private nuisance, but public nuisance claims relate to actions that affect public health, safety, peace, and comfort. However, unlike private nuisance, there are stricter standing requirements. Only public officials, or in limited cases citizens who are representatives of the general public, or part of a group of affected individuals or class, have standing. The historical remedy for public nuisance is injunctive relief, unless one has suffered a special injury such as physical harm or financial loss, in which case damages may also be available.
Public and private nuisance claims can often result from the same alleged harms, leading to claims for both private and public nuisance in environmental noise actions. These general common law principles and balancing tests can be subject to varied interpretations by courts and regulators. In addition, there is an ongoing debate about “modern” nuisance law principles expanding standing and negligence standards. All those factors have led to inconsistency and confusion.
In that uneven and shifting landscape federal, state and local governments can pass laws providing regulations, standards, fines and remedies to clarify rights and responsibilities. Accordingly, many state and local governments have basic environmental noise laws that recognize negative physical, psychological and economic harm from noise as a public nuisance. These laws often limit the allowable noise level(s) at different times of day for different zoned areas (e.g., residential, commercial, industrial). The maximum allowable noise levels are typically higher during daytime hours and lower during nighttime hours. Depending on local court decisions, some noise ordinances with “plainly audible” and “reasonable man” standards are either enforceable, or can be successfully challenged as constitutionally vague. Other laws have specific sound level limitations and time periods that require measurement by precise equipment, but may not reflect how the sounds are perceived by humans. For example, a 55 dBA limit may be too high if the background ambient level in a quiet area is 40 dBA. On the other hand, that same 55 dBA limit is meaningless near a busy freeway with nighttime ambient levels of 65 dBA.
In addition to basic noise laws, many codes have special exemptions for certain activities such as construction, aircraft, racing and other sporting events, patriotic events, festivals or fireworks. Furthermore, local governments may have the right to pass special zoning exemptions when new projects are approved, and this is usually the case during the planning stages of amphitheaters. How does that planning/approval process work?
2. Environmental Impact Reports, Planned Urban Developments and Public Meeting Laws
An Environmental Impact Report or Statement (“EIR” or “EIS”) is a legally mandated report to inform the public and public agency decision-makers of significant environmental effects of proposed projects, identify possible ways to minimize those effects, and consider reasonable alternatives. It stems from the 1969 US National Environmental Policy Act, as amended. States may have similar laws. In California, where I am licensed, the California Environmental Quality Act generally applies to county and city governments. Other states may have Planned Urban Development (“PUD”) laws and reporting requirements to evaluate environmental impact. Colorado’s requirements flow from the Planned Unit Development Act of 1972, that applies to counties and cities. In general, any proposed amphitheater will require an EIR or PUD Plan in the permitting process.
EIRs and PUD Plans are made available for public comment before the public agency makes a decision. Using California as an example, the Bagley-Keene Open Meeting Act covers state agencies, and the Brown Act covers county, city and other local subdivisions. They generally require notice of meeting time and location, what’s on the agenda, access to related documents and an opportunity for public comment. The process places a high value on input from a variety of experiences, backgrounds and viewpoints in order to develop a consensus through debate, deliberation and give and take. However, complex EIRs and other decisions may only have a 30 day or less comment period in order for the public to evaluate the data, hire its own experts, do tests, provide supporting facts and evidence and present their concerns.
This process can sometimes take a long time. Not surprisingly, some businesses seeking project approval and public decision makers find the process inefficient. Some people and entities attempt to evade their duties by failing to properly notice the meeting time and location, having illegal “informal” meetings with stakeholders beforehand, and failing to provide all relevant information. But even if the requirements of these acts aren’t followed there may be a limited time for one to file complaint, often around 30 days.
In addition, if concerned members of the public timely object, provided there are no violations of EIR/PUD and open meeting laws, the governing authority still has broad authority to regulate without addressing the objections. A decision made following the strict requirements of the relevant laws is fairly well insulated from public nuisance challenge.
3. What’s the current situation in Colorado Springs?
In the case of the Ford Amphitheater, the Northside Neighbors’ objections to the approval of the PUD Plan were not made within the Colorado Rules of Civil Procedure §106(b) required 28 day period. Accordingly, the PUD Plan was approved. However, the owner Venu must adhere to noise provisions contained in the approved PUD Plan and related noise codes, or apply for a hardship permit under §9.8.109 of the Colorado Springs City Code. In a September 12, 2024 opinion, the Colorado Court of Appeals ruled Northside’s public nuisance and other claims weren’t yet ripe based on the record as it existed in January 2024 when the appeal was filed.
The Appeals Court also noted as of January 2024, there was “no record that the City (or its agent) approved a hardship permit for the venue.” However, in July 2024 the City did issue a “blanket permit” that Northside alleges does not to comply with the requirements for a hardship permit. In addition, Northside has alleged independent sound measurements from the Ford Amphitheater events indicate violations of both the State and City noise codes. The Ford Amphitheater states it is in compliance with “city-set sound limits,” although the blanket permit has no maximum dB limit. At an October open house Venu’s CEO said he “wants to be a good neighbor,” and its President said he recognizes the noise has an “impact on people” and wants “look at ways to address concerns” including “additional walls, sound curtains and a potential lowering of volume.
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 may be constitutionally protected inverse condemnation and trespass claims (that will be covered in a future blawg). Hopefully all sides will come to a mutually acceptable resolution that complies with laws and protects the neighbors, patrons and employees. I’ll continue to follow the case and provide updates.
Copyright John Drinkwater 2024 All Rights Reserved Turn Up the Quiet TM
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.