Updated October 1, 2024
There have been some recent high profile legal cases about environmental noise in relation to outdoor amphitheaters. It can be a complex and technical area that cannot be adequately covered in a few hundred words. This is the first of a planned series of “blawgs.”
I. Overview
Many of the cases are based on state and local noise codes. Sometimes the state or local government marginalize public health risks by passing special ordinances attempting to exempt the venues from compliance, or simply do not enforce the codes. It can also involve complicated public meeting and broader environmental laws, with related environmental impact reports (EIRs). Many government meeting laws have been tightened to limit the public’s ability to challenge these exemptions by, among other things, requirements that affected individuals must be present at the meeting when the EIR is discussed and object at that time, or lose their rights. Sometimes there are “behind closed door” meetings, that are often prohibited by open meeting laws, where regulators decide the outcome in advance and then manipulate the process while deceiving the public. Other times the public is not meaningfully informed that these issues are on the agenda, when and where the meeting is taking place and/or given access to all the data to allow them to meaningfully participate. In multiple cases, officials charged with protecting the public get prohibited economic benefits, such as multiple free tickets per regulator to every event worth hundreds of thousands of dollars every year, and have other conflict of interest issues up to and including outright corruption. In essence, these efforts are simply attempts to claim some type of immunity that puts them “above the law.” It seems regulators sometimes lose sight of the health risks to everyone’s hearing. There are many legal strategies and remedies for affected persons, but enforcing their rights is very expensive, while regulators use taxpayer dollars for city, county and state attorneys to “defend” their actions. All of the above issues will be addressed in detail in this series.
To start we will summarize a representative ongoing case from Colorado that drew litigation from homeowners even in the planning stage, and examine environmental noise policy in relation to outdoor amphitheaters.
II. Ford Amphitheater
The City of Colorado Springs (“City”) approved a proposed PUD Development Plan (“Plan”) for the $90 million, 8,000 seat Ford (formally Sunset) Amphitheater to be built on private property. The Plan was prepared by the amphitheater owner, Notes Live, Inc. (currently “Venu”), and included an Environmental Noise Emissions Statement (“ENES”). Northside Neighbors Association (“Northside”) believed the Plan and ENES violated the Colorado’s Noise Abatement Act (“State Code”). Northside sued Venu seeking an injunction during construction. Venu and the City claimed, among other things, the City of Colorado Springs Noise Code (“City Code”) gives the right to permit a for-profit permanent facility on private land, and that complies with State Code exceptions. The Colorado District Court dismissed the claim against Venu as premature because the venue had not yet opened, and dismissed part of the claim against the City as time barred and ruled the City can avoid the State Code noise limitations through permitting. in July 2024 the City did issue a “blanket permit” that Northside alleges does not to comply with the requirements for a hardship permit.
Complicating the issue, different divisions of the Colorado Court of Appeals have come to different conclusions as to whether local permits for excess noise trump the State Code, in part depending on whether the venue is located on private property or municipal property. (Hobbs v. City of Salida and Freed v. Bonfire Entertainment). Both courts seem to agree the exemption in the State Code permits local governments to permit certain events on municipal property. If the Ford Amphitheater were on City property, the court might conclude property owners have no rights under the State Code. (However, even if that is the result, property owners have other powerful tools that can “cut through the noise,” such as inverse condemnation that is grounded in the U.S. Constitution. Those remedies will be addressed in a subsequent blog.)
In the interim, the amphitheater has been built. The City registered over 170 complaints for the first concert on August 9th, 2024, and more than 400 new complaints after the second weekend concerts. Residents reported consecutive sleepless night, even with windows closed. In addition, Northside has alleged independent measurements of noise from the Ford Amphitheater indicate violations of both the State and City Codes. Although the legal arguments and motions are about technical rules, ripeness, standing, timing of objections, etc., the case is really about protecting the public’s health and property.
On September 12, 2024, the Colorado Court of Appeals confirmed the District Court dismissal of Northside’s claim against Venu as premature, and confirmed the dismissal of the PUD claim against the City on the “narrow ground” it was timed barred. The Appeals Court noted Northside “should file suit [against Venu] if and when documented violations occur,” and are “free to challenge the City’s issuance of a ‘blanket’ hardship permit.” The Court of Appeals also ruled “it will ultimately be up to the Colorado Supreme Court to weigh in on competing interpretations” between other Appeals Courts as to whether local city permits trump the State Code. I will continue to follow the case and provide updates.
Venu has begun planning four additional Sunset Amphitheaters in Oklahoma City and Broken Arrow, Oklahoma, and McKinney and El Paso, Texas, and has another five amphitheaters in the pipeline, making for a total of 10 Sunset Amphitheaters opening in the next 36 months. City Mayor Yemi Mobolade said that the amphitheater has a projected economic impact of $100 million annually, and has provided real estate and tax incentives that finance about 30% of the costs of opening an amphitheater, Venu CEO JW Roth said.
The City is in business with Venu, and that relationship creates a serious and ongoing conflict of interest. After a raucous City Council meeting on August 28, 2024, Venu and City Officials issued joint statement: “Sound reporting and all mitigation requirements following the first three weeks of operation have been confirmed to be in compliance with commitments. Nevertheless…we identified short and long-term strategies that aim to reduce unintentional impact on our community. We ask for the community’s patience and grace as additional research is conducted, and these actions are developed and applied.” Their contemplated actions are thicker sound walls, working with their own acousticians to do more research and point speakers in different directions. No independent advice or oversight is planned at this time. In the meantime, the damages to the public will continue, exposing Venu and the City to increasing liability to injured residents, that will be paid in part with taxpayer dollars.
III. Policy Discussion
Almost every noise ordinance starts with a statement of purpose. The State Code provides: The general assembly finds and declares that noise is a major source of environmental pollution which represents a threat to the serenity and quality of life in the state of Colorado. Excess noise often has an adverse physiological and psychological effect on human beings, thus contributing to an economic loss to the community. Accordingly, it is the policy of the general assembly to establish statewide standards for noise level limits for various time periods and areas. Noise in excess of the limits provided in this article constitutes a public nuisance.
Although I believe individuals in America have the right to choose to risk their hearing, just as people have the right to smoke, that doesn’t extend to risking everyone’s health due to the economic desires of a few. The Plan approved 110 dBA level is 50 dBA above the State Code residential limit of 50-55 dBA. Every 10dBA increase is perceived as doubling in volume, in this case 32 times louder. Levels of 110 dBA can cause permanent hearing injury in less than two minutes. As noted in the State Code, it’s not just physical injury: consecutive sleepless nights also create psychological damage, that can result in PTSD triggers whenever noise is heard/felt resulting in anxiety, depression and even suicide. The risks are amplified for children and people with autism and hearing disabilities. Furthermore, pursuant to the ENES these levels are purportedly measured “approximately” 100 ft from the stage. The levels will be significantly louder for many patrons, musicians and employees closer to the speakers. For example, if the sound source is at the front of the stage, 110 dBA at 100ft is equivalent to 122 dBA at 25 feet, where injury can occur in 5 seconds. The danger to uninformed patrons, musicians and employees for immediate irreparable hearing loss is significant, and hearing protection is ineffective at those levels. This will be examined in detail in a future blog.
A. Does these Amphitheaters Need to be Outdoors?
The proposed Plan lists the following reasons in its “Project Justification.”
i. Unique Places: “A world-class, state-of-the-art venue for musical artists to perform for the citizens of Colorado Springs” is part of the “vision” of the master plan.
ii.Thriving Economy: “The development will create a projected $75 million dollars in annual taxable revenue and approximately 200-250 full- time, part-time, and seasonal jobs to the community.”
iii. Renowned Culture: The project “promotes and embraces arts, culture, and education as essential parts of our lives and our identity.”
iv. Majestic Landscapes: The project “values our natural and man-made outdoor spaces” and celebrates “our scenery and environment…We ensure our community can engage with and enjoy these places through an integrated system of parks, streetscapes, and natural areas… programmed for walkability.”
The first three reasons clearly do not require an outdoor facility. In fact, a “state-of-the-art” music venue would never be open air. It would be subject to interference from ambient noise such as I-25 and aircraft, subject to increasingly prevalent extreme weather such as thunder, lightning, rain and hail, and provide much less acoustical quality and control. Nearly 100 people were injured and several hospitalized at a Red Rock concert in 2023. The estimated $75 million annual tax revenue may be a powerful incentive for the City to ignore the health and property values of citizens. The fourth reason, valuing “outdoor spaces” and celebrating “our location,” is met by all the landscaping, walkways and other improvements surrounding the actual venue. For example, “70% of the parking [is] within a 1⁄2-mile radius, and enhancement to sidewalk infrastructure in the area, event attendees are encouraged to walk to the venue.” However, the venue itself has a “28’ tall sound mitigation wall…at the perimeter of the venue seating area until such time as adjacent planned restaurant buildings are fully constructed” and the stage itself has a “maximum height of 65’.” The stage has giant video screens and bright lights, some of which are directed at patrons.
One wonders how much of the “unparalleled view of the sun setting over Pikes Peak right behind the stage” is actually visible to the majority of patrons. Venu could broadcast live pictures from a high camera on its giant screens to provide truly “unparalleled views” for all patrons.
B. Can the Ford Amphitheater be redesigned as an Indoor Facility?
Venu did not have to build an open amphitheater, and at $90 million one could have afforded walls and a roof. Venu and the City were aware of the potential noise issues: Venu discussed them privately with the City during planning long before construction, and they were aware of the homeowners’ legitimate concerns during construction. Selective use of glass could address scenic views. If the venue were indoors there wouldn’t be a need for any exceptions or exemptions. It seems this was simply an economic choice made by Venu with the City’s approval, apparently without serious regard to the significant negative health and economic impact on the surrounding community stretching for miles.
If the court determines the venue violates the State Code, the basic remedy is to abate the nuisance, which could mean shutting it down. An injunction limiting noise from such a venue to the existing State Code levels may a practical impossibility.
What about redesigning it as an indoor facility? If indoors, the venue will achieve all of its project justification reasons, with better acoustics, and also address the State Code mandates that environmental noise is a “threat to the serenity and quality of life in the state of Colorado” that “has an adverse physiological and psychological effect on human beings, thus contributing to an economic loss to the community.” In addition, it could also have more events during the winter and protect people from inclement weather, when the outdoor facility will be unusable. It will expand the positive impact of its Project Justifications and increase revenue for Venu and the City.
JW Roth and Venu will certainly argue it’s an economic burden for them to redesign the venue to meet the public health and property protection policy goals, and comply with the noise level requirements of the State Code. But if they don’t the facility could be shuttered.
C. Precedent for Redesign
The 5,300 seat outdoor Universal Amphitheater opened in 1972 to great financial success, and also many neighborhood complaints. Similar to the Ford Amphitheater, first a shielding wall was installed, and then loudspeaker baffles and panels, but complaints continued. Finally, in 1982 walls and a roof were added to allow year round entertainment, that also improved acoustics and provided additional seating. Universal then added restaurants and shopping. It was even more successful after the change, hosting the Academy of Country Music Awards for over a decade. I attended events both before and after the redesign, and the changes made for a much better patron experience. (Unfortunately, the amphitheater was torn down in 2013 to make way for Harry Potter!).
In another case, the then new Pacific Amphitheater in Orange County was shut down due to resident complaints and financial scandal. After an agreement with residents, it successfully reopened in a reduced size with greatly expanded compliance monitoring.
IV. Conclusion:
If Venu and the City truly care about Colorado, the health and property of its residents, and want to make more money in the process, they can follow Universal’s lead: enclose the Ford Amphitheater and have a win-win solution for all stakeholders. JW Roth should seriously consider doing the same for next 9 Amphitheaters he plans over the next 36 months.
As noted above, oral arguments on the appeal are scheduled for September 3, 2024. I’ll be following the case. Future blogs will include updates, in addition to discussing other related issues.
Copyright John Drinkwater 2024 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.