Colorado’s second-highest court on Thursday set the stage for Supreme Court intervention by finding local governments cannot authorize concerts on private, for-profit land to exceed noise limits under state law — three months after another set of appellate judges reached the opposite conclusion.

A three-judge panel for the Court of Appeals concluded the state’s Noise Abatement Act envisioned that Colorado, local governments and nonprofits could allow for excess decibel levels during cultural events, but only for property they own or use.

Consequently, a privately owned and used venue in Chaffee County would not qualify for an exception to noise limits.

The decision ran contrary to a March 7 ruling, also out of Chaffee County, finding the city of Salida could permit a privately owned bar and grill to exceed the decibel levels for its summertime concerts. 

Although the Court of Appeals’ decisions are not binding on its members, both rulings were designated as precedent-setting decisions for trial judges to follow. In such situations, it falls on the Colorado Supreme Court to decide whether to review one or both competing opinions and resolve the split.

In the latest case, a group of Buena Vista residents sued the county, a pair of concert producers and The Meadows Farm LLC, which owns The Meadows outdoor concert venue in an area zoned residential. The plaintiffs alleged multiple types of nuisances from music events at The Meadows, particularly nighttime noise pollution.

They alleged the board of county commissioners repeatedly authorized events with maximum decibel levels more than what state law allows. The Noise Abatement Act places a limit of 50 decibels on noise in a residential zone after 7 p.m., but the plaintiffs alleged the county board signed off on limits in excess of 100 decibels. According to the Centers for Disease Control and Prevention, chainsaws and ambulance sirens are typically 95 decibels in volume.

However, the complication involved a 1987 amendment to the law 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’s limits inapplicable to the government, nonprofits, or their “licensees” and “permittees” when holding concerts and music festivals. The change also clarified that local governments retain the authority “to regulate noise abatement.”

In early 2023, Magistrate Dayna Vise issued orders in two separate cases questioning the meaning of the 1987 amendment. In January, she dismissed a lawsuit challenging Salida’s outdoor music permits to a private establishment, reasoning the noise permit fell within the exemption of the amendment. Three months later, she reached the same conclusion in The Meadows case, noting the dissatisfied homeowners could instead influence permitting decisions by “attending the public hearings” or “through the election process.”

From there, the cases took different paths.

By 2-1, a Court of Appeals panel earlier this year upheld Vise’s reasoning in the Salida case. Both the majority and the dissent felt the law was unambiguous, with the majority believing the legislature wanted to give local governments control over event permitting and Judge Jerry N. Jones maintaining the amendment only applied to land used by governments and nonprofits — rather than for-profit concert venues.

The plaintiffs in The Meadows case urged their three-judge panel to adopt Jones’ reasoning. They cited statements from the state representative who sponsored the 1987 amendment that his intent was to prevent a scenario in which courts could stop Denver, for example, from holding an open-air concert at Washington Park because of excess noise levels.

Attorney Gregory A. Eurich, who argued for the plaintiffs before the panel last month, emphasized the exception to the state’s decibel limits does not mean the state, a local government or a nonprofit necessarily needs to own the venue.

“They just have to be the user of the property for the event,” he said. “And in this case, the board of county commissioners, as the political subdivision, is not using the property (The Meadows) in any sense.”

The panel agreed with him. Judge Terry Fox, in the June 20 opinion, wrote that the 1987 amendment is ambiguous and could mean two things: 

• Any property could exceed the state decibel limits if used by the state, local governments, nonprofits or entities that receive a license, lease or permit from them for cultural events; or

• Any property used by the state, local governments or nonprofits for cultural events could exceed the decibel limits, with entities that receive a related license, lease or permit from them included in that exemption

“We believe the General Assembly’s intended meaning was the second one,” Fox wrote, “that lessees, licensees, and permittees are exempted from the Noise Abatement Act only to the extent that they are involved in a state’s, political subdivision’s, or other nonprofit entity’s use of property.”

She noted it is unlikely lawmakers intended to create an exemption that applied to any private concert promoter who receives a noise permit from a local government.

The panel returned the case to the trial court so that lingering factual questions could be resolved, including whether any of the defendants qualified as a nonprofit user of The Meadows and what, exactly, constitutes a “use” of the property. The panel also determined the plaintiffs filed their claims too late against the county board.

Currently, the Supreme Court is weighing whether to hear the related noise case out of Salida. Those plaintiffs warned the court that the appellate panel’s majority decision “will gut a statewide environmental statute that grants citizens a right to protect themselves from excessive noise.”

The case is Freed et al. v. Bonfire Entertainment LLC et al.