Colorado Springs homeowners lose another round in court to challenge Ford Amphitheater

Colorado Springs homeowners who sued to block operation of the new 8,000-seat, outdoor Ford Amphitheater unless it complies with a state noise pollution law have lost another round in court.

The Colorado Court of Appeals on Thursday upheld a 4th Judicial District Court judge's decision to dismiss the homeowners' lawsuit, which had alleged amphitheater noise would create a public nuisance and that the city of Colorado Springs overstepped its authority in allowing the facility to operate in violation of state law.

The decision follows oral arguments made before the Court of Appeals on Sept. 3 and is the latest development amid weeks of controversy related to the Aug. 9 opening of the Ford Amphitheater, which was proposed and developed by Colorado Springs-based entertainment company Notes Live, now known as VENU.

The company received overwhelming City Council approval in January 2023 to build the amphitheater in the Polaris Pointe mixed-use development, southwest of Voyager Parkway and North Gate Boulevard on the city's north side.

VENU envisioned the amphitheater as a facility to host live, big-name concerts and performers in a scenic outdoor setting, though some residents protested that it would create parking, traffic and especially noise problems in their nearby neighborhoods.

In the little over a month since it's been open, the amphitheater — whose naming rights were purchased by about 40 Ford auto dealers in Colorado — has become a lightning rod for debate.

It's hosted numerous concerts and been praised by concertgoers and community leaders for providing an exciting new entertainment venue for the Pikes Peak region. But the amphitheater also has generated hundreds of complaints from homeowners who say their fears about unwanted and excessive noise have come true and that concerts are harming their quality of life.

Amphitheater critics and supporters have filled City Council chambers on two occasions to voice their opinions, including Tuesday of this week. VENU's ownership, meanwhile, has said its sound readings have shown no violation of allowable city noise levels — findings that have been echoed by city officials.

Even so, VENU says it's pledged to step up noise-mitigation measures, yet some nearby residents remain skeptical of those efforts and say noise readings they've conducted on their own show amphitheater sound has violated city limits.

In September 2023, eight months after the City Council green-lighted the amphitheater, Springs homeowner Michael Kuhn and the Northside Neighbors Association, a homeowners' group, sued to challenge the new facility.

The suit named Notes Live/VENU and the city of Colorado Springs as defendants. It alleged the amphitheater would create a "noise monstrosity," hurt property values, and disrupt nearby residents' quality of life, while it also relied on a faulty noise study to gain city approval. A state noise law, meanwhile, superseded the city's authority to grant noise-hardship permits to allow the amphitheater to operate with noise levels that would exceed state limits, the suit said.

In January, however, 4th Judicial District Court Judge David Shakes dismissed the homeowners' complaint. Among other points, he ruled that the City Council and City Planning Commission had the legal right under state law to approve the amphitheater's development plan, which spelled out project details such as location, access and parking.

That development plan included a series of noise-mitigation measures that Notes Live/VENU was required to implement by the city. They included construction of a minimum 28-foot-tall noise wall on the amphitheater's east edge to help block sound; installation of noise measuring devices just outside the amphitheater property to allow operators to dial down noise as needed; and the addition of clustered speakers designed to direct sound to seating areas and avoid the need to blast it to the amphitheater's far reaches.

In his decision to dismiss the suit, Shakes agreed with Notes Live/VENU and the city, who argued that Colorado Springs' home-rule authority allows it to adopt ordinances that supersede conflicting state statutes. As such, the city maintains authority to regulate concert noise and isn't bound by Colorado's noise law, Shakes' ruling said.

In an opinion written by Court of Appeals Judge Terry Fox and co-signed by Judges Sueanna Johnson and Karl Schock, the court generally sided with VENU and the city of Colorado Springs.

On one key point, the Court of Appeals said the homeowners failed to appeal the City Council's approval of the project within 28 days as required by state law.

A larger issue for the Court of Appeals appeared to be whether homeowners could demonstrate they were being injured by amphitheater noise and whether sound from the amphitheater violated the state law that regulates and limits noise levels, called Colorado's Noise Abatement Act.

The lawsuit's filing in September 2023 came at a time many months before the amphitheater eventually would open. As such, it wasn't possible for homeowners to show at the time of their court action that they were being harmed by its noise since no concerts were taking place, the Court of Appeals essentially said in its ruling.

The same thinking applied with the homeowners' appeal; it was filed in January of this year just after Shakes' dismissal — and months before the amphitheater would open and before any harm from noise could be proved.

"The problem here is not what the (Noise Abatement Act) says (or does not say); the problem is that Notes Live's alleged noise violations have yet to occur, may not occur at all, or may occur in a different way than anticipated," the Court of Appeals said in its ruling.

The court added: "Because Neighbors' claims depend on future and contingent facts (or facts that occurred after this appeal was filed), there is no justiciable controversy for this court to resolve as to Notes Live's prospective noise violations. Neighbors should file suit if and when documented violations occur."

Colorado Springs attorney Ian Speir, who represents the homeowners along with attorney Edward Gleason, said Thursday via email that they are evaluating the Court of Appeals' decision and will assess their next steps.

In its ruling, the Court of Appeals also rejected homeowners' arguments that the state's Noise Abatement Act effectively trumped the city's authority to issue a noise hardship permit for the amphitheater.

At the time of the lawsuit and its subsequent appeal, the Court of Appeals noted that Notes Lives/VENU hadn't yet sought a hardship permit from the city. And, without the existence of the amphitheater, it would be unknown if its noise levels would trigger the need for the hardship permit.

Likewise, at the time of the original lawsuit, there was no record that the city had approved a hardship permit for the amphitheater to exceed city limits on noise in residential areas, the Court of Appeals said. The court also didn't appear to accept the homeowners' allegation that the city had adopted a behind-the-scenes, blanket policy in which it would grant noise-hardship permits for all amphitheater shows.

Eventually, Notes Live/VENU did request and receive a noise-hardship permit on Aug. 7 that has allowed the amphitheater to exceed city noise limits of 50 decibels in residential areas between 7 p.m. and 7 a.m.

"Neighbors try to circumvent this problem by noting that even absent a permit, the policy of issuing hardship permits on an annual basis exists now," the Court of Appeals said. "Even assuming that such a policy exists, Neighbors have not yet suffered any injury in fact from the existence of the claimed policy. At most, Neighbors face the risk that the City might approve one or more hardship permits; this allegation, at best, identifies a speculative future injury."

In response to the Court of Appeals' ruling, the city told The Gazette via email that it was "pleased with the court’s decision,” and referred questions to the court's opinion for additional details.

Tobin Kern, a Littleton attorney representing Notes Live/VENU, reiterated comments Thursday that he had made during last week's oral arguments — that the homeowners had waited too long to legally challenge the city's original approval of the amphitheater and its development plan.

At the same time, Kern said the court effectively said homeowners couldn't show a violation of noise limits because no concerts were taking place at the time the lawsuit was filed.

Now, with additional noise-mitigation efforts planned by Notes Live/VENU, "we don't think there's ever going to be a violation," Kern said.

"We wish that they would, now that they have been thrown out of court twice, we wish that they would just turn their efforts to cooperating with us on any additional mitigation," Kern said. "If they want to file a new suit instead, we'll just have to deal with it at that time. But if they file suit again, it's going to be the same problem all over again. We've already committed to additional mitigation. So, it's going to be the same question: How are we going to know if there's a violation if the additional mitigation's not even completed yet? They're going to have the same problem."

Ultimately, a Colorado Supreme Court decision on the authority of local governments to allow noise levels that exceed state and local limits could be coming down the road.

In March and June, the Court of Appeals handed down two differing noise rulings that pertained to the authority of jurisdictions in Chafee County to allow sound levels in excess of state law. Because of those "competing interpretations" of the state noise law, it will be up to the Colorado Supreme Court "to weigh in," the Court of Appeals said.