Colorado’s second-highest court ruled for the first time earlier this month that local governments may authorize noise permits for activities on private property that exceed the levels set in state law.

By 2-1, a three-judge panel of the Court of Appeals concluded the state’s Noise Abatement Act allowed the city of Salida to issue outdoor music permits to High Side! Bar & Grill that result in louder decibel levels than those specifically listed in the law. The majority decided a 1987 amendment to the original 1971 law created an exception for the government, its “licensees” and “permittees.”

“The legislative history makes clear that the amendment was intended to provide local governments with the flexibility and control to apply local standards to regulate cultural, entertainment, athletic, or patriotic events, rather than subject these events to a statewide, unbending mandate. Indeed, local control was a central theme,” wrote Judge Timothy J. Schutz for himself and Judge Robert D. Hawthorne on March 7.

Although the majority believed the language unambiguously allowed Salida to permit a restaurant to exceed state noise limits, Judge Jerry N. Jones argued in dissent that the language unambiguously did not.

“Think of all the licenses issued by the state — licenses to practice law or medicine, for example, or to drive. The legislature could not have intended such licensees to be allowed to hold events excluded from the noise limitations,” he wrote.

The underlying case began in 2022, when civil litigator Matthew K. Hobbs, representing himself, sued Salida, its city administrator and High Side! for allegedly permitting decibel levels 3,000% higher than state law allows. Hobbs lives 567 feet from High Side! which is located on the banks of the Arkansas River downtown. During the summer, the restaurant hosts live music outdoors.

The Noise Abatement Act places a limit of 55 decibels on noise in a commercial zone after 7 p.m. Hobbs alleged High Side! “routinely” exceeded that limit, as Salida’s permit authorized noise up to 85 decibels. According to the Centers for Disease Control and Prevention, 55 decibels equates to the sound of a “normal conversation,” while 85 decibels may cause hearing damage after prolonged exposure.

Although Hobbs took his concerns to the city council, officials decided against changing their noise protocols. An online petition opposed Hobbs’ efforts, warning about a “handful of individuals” in Salida trying to “shut down live music” and turn the city into a “ghost town.”

At the trial court, the dispute centered on Salida’s authority to issue permits to a privately owned establishment to exceed state law’s noise limits. Specifically, lawmakers in 1987 approved an amendment jokingly named the “Fiddler’s Green bill” — a reference to the Greenwood Village amphitheater that would open the following year.

The amendment rendered the Noise Abatement Act inapplicable to the government, nonprofits, or “licensees” and “permittees” when holding concerts and music festivals. The change also clarified that local governments retain the authority “to regulate noise abatement.”

“High Side! is a permittee of the city, having sought and obtained a noise permit in each instance from the city in order to hold entertainment and concerts,” wrote Chaffee County Magistrate Dayna Vise in a January 2023 order. “And the noise permits complained of were for the purposes of holding cultural and entertainment events (specifically, concerts) — which were similarly within the plain language of the statute.”

Consequently, she dismissed Hobbs’ lawsuit. Hobbs then turned to the Court of Appeals.

“The General Assembly never intended to allow a political subdivision to grant noise permits to a neighborhood bar and allow as many concerts, at whatever time, and whatever decibel levels the local political subdivision deems reasonable,” he wrote.

The city responded that it received “overwhelming support” from residents for its noise regulations and, regardless, state law gave it the authority to regulate noise within city limits.

The Court of Appeals’ majority agreed the 1987 amendment allowed the government to authorize concerts that exceed the decibel limits regardless of who holds the permit or where the concert takes place. Schutz, writing for the majority, rejected the idea that the appellate panel was giving local governments an ability to nullify the statewide noise limits entirely.

“Concerned residents, such as Hobbs and other interested parties, were allowed to participate” in the noise permitting discussion, he wrote. “The fact that such a remedy does not always lead to the particular result desired by a particular party does not mean that the statute, or the political process that it contemplates, is absurd.”

Jones, in his dissent, believed the 1987 exemption only applied to land owned by the government or a nonprofit entity. He noted lawmakers never discussed exempting for-profit establishments like High Side! from the statewide noise limits.

“The majority’s construction would allow Salida to issue a ‘permit’ to anyone — without limitation — to violate the statewide noise standards, without any limitation as to noise level, duration, or frequency,” he wrote, “as long as the noise is caused by one of the statutorily identified events.”

Hobbs and attorneys for Salida did not provide an immediate response to the decision. In a statement, High Side! said it has tried to be a good neighbor and work with Hobbs to address his concerns.

“Unfortunately, Mr. Hobbs insisted on taking this matter to court, which has cost everybody a lot of time and money, but we are pleased with the Court of Appeals’ decision rejecting Mr. Hobbs’ claim,” the restaurant wrote. “We think the majority opinion properly places decisions regarding noise from musical events in the hands of Salida’s community leaders, as intended by the Colorado Legislature when the Legislature drafted the state noise statute.”

The case is Hobbs v. City of Salida et al.