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Hobbs v. City of Salida.

2024 COA 25. No. 23CA0073. Noise Abatement—Maximum Permissible Noise Levels—Colorado Noise Abatement Act—Preemption of Municipal Law—Noise Ordinances.

March 7, 2024

Salida is a statutory city with a creative arts district that supports art and live music venues in its downtown. Salida adopted an ordinance authorizing it to issue amplified noise permits that allow local businesses to hold special events. Under the ordinance, permittees may hold musical events between May 2 and October 31, but no noise is permitted in excess of 85 db(A), and the authorized activity must end at 10 p.m. absent prior special approval from the city. Giant Hornet LLC, d/b/a High Side! Bar and Grill (High Side), is a bar and restaurant that routinely featured live musicians, and during the summer, it sponsored outdoor concerts on its patio. Hobbs owns a home that is located in an industrial zone across from downtown Salida. His southern property line is approximately 570 feet from High Side’s outdoor patio. Between High Side and Hobbs’s home there is a developed walking path, the Arkansas River, a railroad line, and a county road. Hobbs filed a noise complaint with Salida, asserting that the decibel level emanating from concerts on High Side’s patio exceeded the limit set by the Colorado’s Noise Abatement Act (Act), which generally limits the sound level for residential neighborhoods to 50 db(A) between 7 p.m. and 7 a.m., and that he measured noise levels on his property in the range of 51 to 78 db(A) between 7 and 9:30 p.m. The parties could not resolve the matter, and Hobbs filed a complaint against High Side, the City of Salida, and its administrator (collectively, defendants). Hobbs requested a declaratory judgment that the Act preempts Salida’s sound amplification ordinance and, therefore, the sound amplification permits issued to High Side were null and void. The complaint also sought injunctive relief prohibiting Salida from issuing permits under the amplified sound ordinance and prohibiting High Side from hosting concerts exceeding the Act’s general limits. Defendants moved to dismiss for failure to join indispensable parties and for judgment as a matter of law on Hobbs’s claim for declaratory relief. The district court denied the motions to dismiss but entered judgment as a matter of law in favor of defendants.

On appeal, Hobbs contended that the district court incorrectly concluded that CRS § 25-12-103(11) allows Salida to issue amplified noise permits to for-profit entities to hold concerts on private property. He maintained that CRS § 25-12-108 preempts Salida’s ability to issue sound permits that exceed the limitations set forth in the Act and that the Act authorizes permits only on property Salida owns. The Act does not contain any express or implied limitation that a political subdivision may only authorize permits for performances on land it owns. Further, § 25-12-103(11) exempts Salida’s ordinance and the permits from the Act’s general standards. In addition, the preemption language of § 25-12-108 does not apply to the present dispute. Accordingly, the amplified noise permits that Salida issued to High Side do not conflict with the Act, and the district court did not err.

All parties requested an award of attorney fees. Defendants failed to cite legal authority or develop argument in support of the request, so the court of appeals declined to further address their claim. And contrary to Hobbs’s assertion, defendants’ motions to dismiss were not substantially frivolous, groundless, or vexatious, as the court affirmed the district court’s judgment as a matter of law on all of Hobbs’s claims. Accordingly, the court denied Hobbs’s request.

The judgment was affirmed.

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

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