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Freed v. Bonfire Entertainment LLC.

2024 COA 65. No. 23CA0965. Public Health and Environment—Noise Abatement Act—Maximum Permissible Noise Levels—Municipal Noise Ordinance—Subject Matter Jurisdiction—CRCP 106.

June 20, 2024

Concert promoter Bonfire Entertainment LLC (Bonfire) applied to the Board of County Commissioners of Chaffee County (BOCC) to hold a music festival in 2022 at The Meadows Farm LLC (Meadows Farm), a private entity that owns land in Chaffee County. Meadows Farm later clarified that it would lease the property to South Main Arts and Parks Trust (SMAPT), a purported nonprofit, which would then sublease the property to Bonfire. The BOCC issued a permit for the music festival and concluded that a statutory exemption applied to the event, so it permitted noise levels exceeding the residential limit in Colorado’s Noise Abatement Act (the Act). Plaintiffs, a group of property owners residing near Meadows Farm, complained that the BOCC had granted similar permits for concerts at Meadows Farm since 2016 that had negatively impacted their quality of life and enjoyment of their properties. Plaintiffs filed a complaint concerning the 2022 music festival against Bonfire, SMAPT, and Meadows Farm (the promoter defendants) alleging statutory nuisance, common law nuisance, and conspiracy to commit nuisance. Plaintiffs also sought a declaratory judgment and injunctive relief against the BOCC and the promoter defendants. The BOCC and the promoter defendants moved to dismiss the claims, but the 2022 festival apparently occurred before the parties finished filing their responses and replies. In 2023, the district court granted the motions to dismiss. The court found that it lacked subject matter jurisdiction over all the claims because plaintiffs had failed to timely seek review of the BOCC’s permit under CRCP 106(a)(4). The court also found that, even if it had jurisdiction, plaintiffs’ claims would fail because CRS § 25-12-103(11) broadly exempts permittees of political subdivisions from complying with the Act’s limits when they hold concerts or music festivals, even if the property is only used by a private, for-profit entity.

On appeal, plaintiffs contended that the district court erred by dismissing all claims for lack of subject matter jurisdiction. Rule 106(a)(4) provides the exclusive remedy for review of a governmental body’s quasi-judicial decisions, but a governmental body’s quasi-legislative actions are reviewed under Rule 57. But Rule 106(a)(4) provides for review only of a governmental body’s or officer’s actions; it does not apply to private parties’ actions. Accordingly, plaintiffs’ failure to assert their nuisance claims against the promoter defendants in a timely Rule 106(a)(4) action did not deprive the court of subject matter jurisdiction over those claims, which the district court erred by dismissing. However, the BOCC’s issuance of its amplified noise permits constitutes a quasi-judicial function for which Rule 106(a)(4) provides the exclusive remedy. It is undisputed here that plaintiffs’ complaint failed to comply with Rule 106(b)’s strict 28-day deadline to challenge the permitting decision, so plaintiffs cannot now request a declaratory judgment against the BOCC that effectively seeks review of that decision, even if framed as a purely legal question under Rule 57. Accordingly, the district court correctly determined that it lacked subject matter jurisdiction over the declaratory judgment claim against the BOCC.

Plaintiffs also argued that the district court erred in interpreting CRS § 25-12-103(11) to exempt all permittees of political subdivisions from the general noise limits, regardless of whether the property is used by the political subdivision. The court of appeals interpreted the statute to mean that lessees, licensees, and permittees are exempted from the Act only to the extent that they are involved in a state’s, political subdivision’s, or other nonprofit entity’s use of property. Agreeing with the dissent in Hobbs v. City of Salida, 2024 COA 25, the court concluded that the General Assembly did not intend for the exemption to apply to a private entity’s music festival just because the private entity obtained a local amplified noise permit; the property subject to the permit must be used by the statutorily authorized permitting entity. Therefore, the district court erred in its interpretations of CRS § 25-12-103(11).

The judgment was affirmed in part and reversed in part. The case was remanded, with directions, for further proceedings.

The full opinion is available at

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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