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Matthew Hobbs appealed the district court’s order entering judgment in favor of Giant Hornet LLC, d/b/a High Side! Bar and Grill and the City of Salida and its administrator, Drew Nelson. The Colorado Court of Appeals concluded the amplified noise permits Salida issued High Side didn’t conflict with Colorado’s Noise Abatement Act and the district court correctly entered judgment.
Hobbs owns a home just north of the Arkansas River across from downtown Salida. High Side opened in August 2020, and routinely featured a variety of live musicians. During the summer, it sponsored outdoor concerts on its patio.
Salida adopted an ordinance authorizing it to issue amplified noise permits. Pursuant to the ordinance, 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. The permits allow the permittee to hold musical events between May 2 and Oct. 31. In 2022, Salida issued amplified sound permits to a total of 39 applicants within the community.
The NAA limits the sound level for residential neighborhoods to 50 db(A) between 7:00 p.m. and 7:00 a.m. But Salida and High Side contended the NAA authorized cities to issue amplified sound permits.
On Aug. 17, 2021, Hobbs filed a noise complaint with Salida. He asserted the described level emanating from concerts on High Side’s patio exceeded the statewide limit. According to Hobbs, he measured noise levels from his property with a smartphone application registering in the range of 51-78 db(A) between 7:00 p.m. and 9:30 p.m.
Over the next several months, the parties worked informally to address Hobbs’ concerns, but were unable to reach a resolution.
In February 2022, Salida amended its ordinance to increase the available number of amplified sound permits from 18 to 60 events per location. In the summer of 2022, Hobbs filed a complaint naming Salida and High Side as defendants. Hobbs requested the entry of a declaratory judgment that NAA preempted Salida’s sound amplification verdicts, and therefore voided the permits issued to High Side.
The complaint also sought injunctive relief prohibiting Salida from issuing permits pursuant to the amplified sound ordinance and prohibiting High Side from hosting concerts that exceed the general limits set by NAA.
According to the opinion, Salida and High Side filed separate, but nearly identical, combined motions to dismiss for failure to join indispensable parties and for judgment as a matter of law on Hobbs’ claim for declaratory relief. The district court denied the motions to dismiss for failure to join necessary parties but granted Salida’s and High Side’s motions for judgment on the pleadings, concluding Hobb’s claims failed as a matter of law.
Hobb’s appealed the district court’s entry of judgment on the pleadings. High Side cross-appealed the district court’s denial for motion to dismiss for failure to join necessary parties.
The appeals court agreed with Salida and High Side that Section 25-12-103(11) of the Colorado Revised Statutes isn’t ambiguous and its clear language authorized Salida to issue the disputed permits to High Side.
The appeals court also disagreed with Hobbs’ argument that Section 25-12-103(11) only authorized Salida to issue permits to nonprofit entities.
Overall, the appeals court perceived no error in the district court’s conclusion Hobbs’ claims failed as a matter of law.
The appeals court expressed no opinion on the district court’s denial of the motion to dismiss for failure to join necessary parties because it concluded the district court correctly entered judgment in High Side and Salida’s favor under Section 25-12-103(11).
The appeals court affirmed the district court’s judgment. Judge Jerry Jones dissented.
Jones disagreed with the majority’s conclusion that Salida had the authority to issue the permits. Because he disagreed with that conclusion and concluded the district court didn’t err when it declined to dismiss Hobbs’ complaint for failure to join indispensable parties, he respectfully dissented.
Jones wrote his interpretation of the law and the legislation indicated the real property subject to the bill is limited to real property used by the state, a political subdivision of the state or any other nonprofit entity. Based on this, Jones respectfully dissented from the majority’s interpretation of Section 25-12-103(11)
Jones would reverse the judgment and remand for entry of appropriate declaratory and injunctive relief.