Matthew K Hobbs v. City of Salida ( 2024 )

The summaries
The summaries of of the
the Colorado
Colorado Court
Court of of Appeals
Appeals published
published opinions
opinions
constitute no
constitute no part
part of
of the
the opinion
opinion ofof the
the division
division but
but have
have been
been prepared
prepared byby
the division
the division for
for the
the convenience
convenience of of the
the reader.
reader. The
The summaries
summaries maymay not
not be
be
cited or
cited or relied
relied upon
upon asas they
they are
are not
not the
the official
official language
language of
of the
the division.
division.
Any discrepancy
Any discrepancy between
between thethe language
language in in the
the summary
summary andand in
in the
the opinion
opinion
should be
should be resolved
resolved in in favor
favor of
of the
the language
language inin the
the opinion.
opinion.
SUMMARY
March 7, 2024
2024COA25No. 23CA0073, Hobbs v. City of Salida — Public Health and
Environment — Noise Abatement — Maximum Permissible
Noise Levels — Preemption; Municipal Law — Noise Ordinances
The division addresses, for the first time in a published
opinion, the interplay between the general noise standards set by
Colorado’s Noise Abatement Act (Act), see §§ 25-12-101 to -110,
C.R.S. 2023, and noise standards authorized through amplified
noise permits issued by local governmental entities. The majority
concludes that the plain language of section 25-12-103(11) provides
municipal entities, such as the City of Salida, with the authority to
issue amplified noise permits to private entities to hold cultural,
entertainment, athletic, or patriotic events, including, but not
limited to, concerts and music festivals on the permittee’s property.
The dissent argues that the plain text of section 25-12-
103(11), considered in context, and, alternatively, the legislative
history of that section, mandate a conclusion that the exemption
only authorizes a political subdivision of the state, such as a
municipality, to issue amplified noise permits to entities which will
use property that is used by that municipality.
COLORADO COURT OF APPEALS 2024COA25Court of Appeals No. 23CA0073
Chaffee County District Court No. 22CV30020
Honorable Dayna Vise, Magistrate
Matthew K. Hobbs,
Plaintiff-Appellant and Cross-Appellee,
v.
City of Salida and Drew Nelson, in his official capacity as City of Salida
Administrator,
Defendants-Appellees,
and
Giant Hornet LLC, d/b/a HighSide! Bar and Grill,
Defendant-Appellee and Cross-Appellant.
JUDGMENT AFFIRMED
Division III
Opinion by JUDGE SCHUTZ
Hawthorne*, J., concurs
J. Jones, J., dissents
Announced March 7, 2024
Mathew K. Hobbs, Salida, Colorado, for Plaintiff-Appellant and Cross-Appellee
Wilson Williams LLP, Geoffry T. Wilson, Erica Romberg, Louisville, Colorado,
for Defendants-Appellees City of Salida and Drew Nelson
Anderson Law Group, Thomas H. Wagner, Salida, Colorado, for Defendant-
Appellee and Cross-Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2023.
¶1 Plaintiff, Matthew K. Hobbs, appeals the district court’s order
entering judgment as a matter of law in favor of the defendants,
Giant Hornet LLC, d/b/a High Side! Bar and Grill (High Side), and
the City of Salida and its administrator, Drew Nelson (collectively,
Salida). In resolving the parties’ contentions, we address for the
first time in a published opinion the interplay between general noise
standards set by Colorado’s Noise Abatement Act (Act), see §§ 25-
12-101 to -110, C.R.S. 2023, and noise standards authorized
through permits issued by local governmental entities.
¶2 We conclude that the amplified noise permits that Salida
issued to High Side do not conflict with the Act. Accordingly, we
conclude that the district court correctly entered judgment as a
matter of law in favor of Salida and High Side and against Hobbs.
I. Background
¶3 Salida is a statutory city located along the Arkansas River. It
was the first municipality in Colorado to form a creative arts
district, which supports vibrant art and live music venues
downtown. See generally § 24-48.5-314(1)(a)(I), C.R.S. 2023 (“A
creative district is a well-recognized, designated mixed-use area of a
community in which a high concentration of cultural facilities,
1
creative businesses, or arts-related businesses serve as the anchor
of attraction.”).
¶4 Hobbs owns a home just north of the Arkansas River 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, which is located in an industrial zone, are a
developed walking path, the Arkansas River, a railroad line, and a
county road. Hobbs is an attorney and often works from home in
the evenings.
¶5 High Side opened in August 2020, during the COVID-19
pandemic. The bar and restaurant routinely featured a variety of
live musicians. During the summer, it sponsored outdoor concerts
on its patio, which abuts the edge of the walking path located along
the southwestern bank of the Arkansas River.
¶6 Salida adopted an ordinance authorizing it to issue amplified
noise permits, which allow local businesses to hold “special events
or activities, including, without limitation, musical performances or
other entertainment events, fireworks displays, parades and
seasonal commercial activities.” Salida Mun. Code § 10-90-80(a).
Pursuant to the ordinance, no noise is permitted in excess of 85
2
db(A)1 and the authorized activity must end at 10 p.m. absent prior
special approval from the city.
¶7 Salida’s amplified sound permits allow the permittee to hold
musical events between May 2 and October 31. Absent
circumstances not present here, Salida may issue no more than
sixty permits per season to the same permittee. Thus, during a
typical season, a permittee could hold approximately three outdoor
musical events per week. In 2022, Salida issued amplified sound
permits to a total of thirty-nine applicants within the community.
¶8 The Act generally limits the sound level for residential
neighborhoods to 50 db(A) between 7 p.m. and 7 a.m. § 25-12-
103(1), C.R.S. 2023. But Salida and High Side contend that the Act
also authorizes cities to issue amplified sound permits. See § 25-
12-103(11).
1 A db(A) is a weighted scale that is measured with a sound meter
using the A-Weighting network. § 25-12-102(2), C.R.S. 2023. The
Centers for Disease Control and Prevention state that sounds that
are 85 db(A) require an individual to raise their voice to be heard by
someone who is three feet away. Ctrs. for Disease Control &
Prevention, Nat’l Inst. for Occupational Safety & Health, Noise and
Occupational Hearing Loss, https://perma.cc/PT34-5X9U. For
example, printing presses, lawn mowers, and power tools produce
noise levels between 85 and 90 db(A). Id.
3
¶9 On August 17, 2021, Hobbs filed a noise complaint with
Salida, asserting that the decibel level emanating from concerts on
High Side’s patio exceeded the statewide limit. He alleged that High
Side had held multiple events throughout the summer that were
excessively loud. Shortly before contacting Salida, Hobbs
monitored noise levels coming from High Side with a smart phone
application. According to Hobbs, he measured noise levels on his
property in the range of 51-78 db(A) between 7 and 9:30 p.m.
¶ 10 Over the next several months, Hobbs, High Side, and Salida
worked informally to address Hobbs’s concerns. The parties did not
reach a mutually acceptable resolution.
¶ 11 In February 2022, Salida considered revisions to its amplified
noise ordinance. Salida received comments from Hobbs and
numerous other citizens. After considering the public’s input and
staff recommendations, Salida amended its ordinance to increase
the available number of amplified sound permits from eighteen to
sixty events per location.
¶ 12 That summer, Hobbs filed a complaint naming Salida and
High Side as defendants. Hobbs requested the entry of a
declaratory judgment that the Act preempts Salida’s sound
4
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
pursuant to the amplified sound ordinance and prohibiting High
Side from hosting concerts that exceed the general limits set by the
Act.
¶ 13 In response to Hobbs’s complaint, 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’s claim for declaratory relief. The district court
denied the motions to dismiss for failure to join necessary parties.
But the court granted Salida’s and High Side’s motions for
judgment on the pleadings, concluding that Hobbs’s claims fail as a
matter of law.
¶ 14 Hobbs appeals the district court’s entry of judgment on the
pleadings. High Side cross-appeals the district court’s denial of its
motion to dismiss for failure to join necessary parties. Because we
determine it is dispositive, we first address the district court’s entry
of judgment on the pleadings in favor of Salida and High Side.
5
II. The Act Does Not Preempt Salida’s Ordinance
¶ 15 Hobbs contends that the district court incorrectly concluded
that section 25-12-103(11) allows Salida to issue amplified noise
permits and instead argues that section 25-12-108, C.R.S. 2023,
preempts Salida’s ability to issue any sound permits that exceed the
limitations set forth in the Act.
A. Applicable Law and Standard of Review
¶ 16 The district court determined that the entry of judgment in the
defendants’ favor was appropriate because Hobbs’s claims failed as
a matter of law but noted that dismissal was also appropriate under
C.R.C.P. 12(b)(5) for the same reasons. See Hess v. Hobart, 2020
COA 139M2, ¶ 33 n.5 (noting that supreme court precedent states
that the entry of judgment is appropriate when a declaratory
judgment claim fails as a matter of law, but affirming dismissal of
such claims against the plaintiff because the effect was the same).
¶ 17 We conclude that “in a declaratory judgment action in which
the court rules against the position of the plaintiff, it should enter a
declaratory judgment and not sustain a motion to dismiss.” Karsh
v. City & Cnty. of Denver, 176 Colo. 406, 409-10, 490 P.2d 936, 938
6
(1971). Thus, we review the district court’s order to determine
whether the entry of judgment against Hobbs was appropriate.
¶ 18 A district court may enter judgment in the defending party’s
favor if the material facts are not in dispute and the plaintiff’s claim
fails as a matter of law. See Tomar Dev., Inc. v. Friend, 2015 COA
73, ¶ 24 (approving dismissal of declaratory judgment claims that
fail as a matter of law). No party is contending that any of the facts
relevant to the district court’s judgment were disputed. Thus, the
sole question before us is a question of law: whether the Act
preempts Salida’s ordinances and therefore renders void the
permits Salida issued to High Side. See §§ 25-12-101 to -110.
¶ 19 We review issues of statutory interpretation de novo. Nieto v.
Clark’s Mkt., Inc., 2021 CO 48, ¶ 12. In interpreting a statute, our
primary goal is to ascertain and give effect to the General
Assembly’s intent. See Elder v. Williams, 2020 CO 88, ¶ 18. First,
we look at the statute’s plain language, reading words and phrases
in context and construing them according to the rules of grammar,
syntax, and common usage. Broomfield Senior Living Owner, LLC v.
R.G. Brinkmann Co., 2017 COA 31, ¶ 17. If the statute’s meaning is
clear from the language alone, our analysis is complete, and we
7
apply the statute as written. See OXY USA Inc. v. Mesa Cnty. Bd. of
Comm’rs, 2017 CO 104, ¶ 16.
¶ 20 When interpreting a statute, we generally avoid a construction
“that would render any words or phrases superfluous or lead to
illogical or absurd results.” Cowen v. People, 2018 CO 96, ¶ 31
(quoting Am. Fam. Mut. Ins. Co. v. Barriga, 2018 CO 42, ¶ 8). But
these canons do not enable us to rewrite a statute to achieve a
different result than that dictated by the legislature’s selected
language. People v. Bice, 2023 COA 98, ¶ 32. Thus, “courts must
approach rejecting a statute’s plain language to avoid creating an
absurd result very cautiously.” Oracle Corp. v. Dep’t of Revenue,
2017 COA 152, ¶ 41 (“[T]he absurd results ‘rule’ of construction
typically is merely ‘an invitation to judicial lawmaking.’” (quoting
Barrow v. City of Detroit Election Comm’n, 836 N.W.2d 498, 506
(Mich. Ct. App. 2013))), aff’d, 2019 CO 42.
¶ 21 The absence of a statutory definition does not create ambiguity
if the undefined phrase is one of common usage and the court can
discern its usual and ordinary meaning. Dillabaugh v. Ellerton, 259
P.3d 550, 552 (Colo. App. 2011). When assessing whether a word
or phrase has more than one reasonable meaning and is therefore
8
ambiguous, we must also consider the meaning of the word or
phrase in the context of the statutory language. Dep’t of Transp. v.
Amerco Real Est. Co., 2016 CO 62, ¶ 12. Words and phrases
cannot be separated from the broader context and the way they are
used in the sentence in which they appear. Id.¶ 22 Under the doctrine of noscitur a sociis, a word or phrase is
known by the company it keeps. St. Vrain Valley Sch. Dist. RE-1J v.
A.R.L., 2014 CO 33, ¶ 22; see also Gustafson v. Alloyd Co., 513 U.S.
561, 575 (1995). We rely on this rule to avoid ascribing a meaning
to one word that is inconsistent with its accompanying words.
Gustafson, 513 U.S. at 575.
B. The Act
¶ 23 In 1971, the General Assembly adopted the Act to establish
standards regulating the degree of noise pollution in Colorado:
The general assembly finds and declares that
noise is a major source of environmental
pollution which represents a threat to the
serenity and quality of life in the state of
Colorado. Excess noise often has an adverse
physiological and psychological effect on
human beings, thus contributing to an
economic loss to the community. Accordingly,
it is the policy of the general assembly to
establish statewide standards for noise level
limits for various time periods and areas.
9
Noise in excess of the limits provided in this
article constitutes a public nuisance.
§ 25-12-101. Section 25-12-103(1) sets forth Colorado’s general
noise abatement standards:
Every activity to which this article is applicable
shall be conducted in a manner so that any
noise produced is not objectionable due to
intermittence, beat frequency, or shrillness.
Sound levels of noise radiating from a property
line at a distance of twenty-five feet or more
therefrom in excess of the db(A) established for
the following time periods and zones shall
constitute prima facie evidence that such noise
is a public nuisance:
Zone 7:00 a.m. 7:00 p.m.
to next to next
7:00 p.m. 7:00 a.m.
Residential 55 db(A) 50 db(A)
Commercial 60 db(A) 55 db(A)
Light 70 db(A) 65 db(A)
industrial
Industrial 80 db(A) 75 db(A)
§ 25-12-103(1). Hobbs points to this section to support his claim
that Salida’s noise amplification ordinance, and the related permits
Salida issued to High Side, conflict with state law. Hobbs argues
that the conflicting noise ordinance is preempted by section 25-12-
108, which provides that “this article shall not be construed to
10
preempt or limit the authority of any municipality or county to
adopt standards that are no less restrictive than the provisions of
this article.”
¶ 24 In contrast, Salida and High Side argue that Salida’s
ordinance and the subject permits are exempted from the Act’s
general standards based on the following language, which the
General Assembly added to the Act through an amendment in
1987:
This article is not applicable to the use of
property by this state, any political subdivision
of this state, or any other entity not organized
for profit, including, but not limited to,
nonprofit corporations, or any of their lessees,
licensees, or permittees, for the purpose of
promoting, producing, or holding cultural,
entertainment, athletic, or patriotic events,
including, but not limited to, concerts, music
festivals, and fireworks displays. This
subsection (11) shall not be construed to
preempt or limit the authority of any political
subdivision having jurisdiction to regulate
noise abatement.
§ 25-12-103(11).
¶ 25 Generally, a local ordinance that conflicts with a state statute
is void; however, contrary provisions in an ordinance and a state
statute do not necessarily indicate a conflict. Minch v. Town of
11
Mead, 957 P.2d 1054, 1056 (Colo. App. 1998). If possible,
ordinances and statutes must be reconciled, and effect should be
given to both. Id.¶ 26 In entering judgment against Hobbs, the district court
reconciled the Act with Salida’s ordinance and resulting permits,
reasoning that the Act unambiguously exempts Salida’s actions:
“[T]he plain language of section 25-12-103(11) clearly states the
legislative intent that the noise level limits established in the statute
do not apply to political subdivisions or their permittees when
holding music and cultural events.”
C. Analysis
¶ 27 Hobbs does not dispute, and we agree, that Salida is a political
subdivision of the state. See, e.g., § 29-1-202(2), C.R.S. 2023
(defining “political subdivision” to mean “a county, city and county,
city, town, service authority, school district, local improvement
district, . . . or any other kind of municipal, quasi-municipal, or
public corporation organized pursuant to law”). Nor does he
dispute that High Side is a permittee of Salida, or that musical
concerts are one of the activities contemplated by the statutory
exception. But Hobbs argues that the exemption language of
12
section 25-12-103(11) applies only to concerts that occur, as
relevant here, on property used by a city, or a city’s permittees
using property owned by the City. Therefore, Hobbs argues, section
25-12-103(11) does not authorize Salida to issue amplified sound
permits to for-profit entities such as High Side to hold concerts on
private property.
¶ 28 In response, High Side and Salida argue that the exemption
contemplated by section 25-12-103(11) is not limited to concerts
performed on property Salida owns, but rather applies to all
property for which a permit is issued. Additionally, High Side and
Salida argue that the ordinance is not limited to concerts or musical
festivals performed by nonprofit entities, but rather extends to
Salida’s permittees, whether they conduct business for profit or
otherwise. Based on these premises, Salida and High Side argue
that the ordinance and resulting permits are authorized by the Act
and that Hobbs’s preemption argument fails as a matter of law.
¶ 29 We address the parties’ differing interpretations in turn.
13
1. The Exemption Is Not Limited to Concerts Performed on Land
Owned by Salida
¶ 30 We agree with Salida and High Side that section 25-12-103(11)
is not ambiguous. We also agree that its clear language authorized
Salida to issue the disputed permits to High Side.
¶ 31 Hobbs points to the following language: “This article is not
applicable to the use of property by . . . any political subdivision of
this state, . . . or any of [its] . . . permittees, for the purpose of . . .
holding . . . concerts.” § 25-12-103(11) (emphasis added). Hobbs
seizes on the “use of property by . . . any political subdivision”
language to argue that permits may only authorize concerts on
property Salida owns. But the statute contains no such limitation.
¶ 32 The statute does not contain any limitation, express or
implied, that a political subdivision may only authorize permits for
performances on land it owns. Rather, the statute refers broadly to
the “use of property” without any restriction with respect to who
owns the property. And the permitted property users include the
political subdivision’s permittees. Surely, if the legislature had
intended for the exemption to only apply to events held on land
owned by the state, its political subdivisions, or nonprofit entities, it
14
knew how to say that. See, e.g., People v. Griffin, 397 P.3d 1086,
1089 (Colo. App. 2011) (“If the legislature had wanted offenders to
register where they merely intend to reside, it certainly knew how to
say so.”). But it did not.
¶ 33 We presume the General Assembly acts intentionally when
selecting the words used in a statute. See, e.g., People v. O’Neal,
228 P.3d 211, 213 (Colo. App. 2009) (we presume the General
Assembly did not use language idly). We do not add to, or subtract
from, the words chosen by the General Assembly. Nieto, ¶ 12. And
if the statutory language is clear, we must apply it as written.
Denver Post Corp. v. Ritter, 255 P.3d 1083, 1089 (Colo. 2011).
Section 25-12-103(11) has no words restricting the issued permits
use to the issuing political subdivision’s property. Thus, we
conclude the district court did not err by rejecting Hobbs’s
argument that the authorized permits are restricted to property
owned by Salida.
2. Section 25-12-103 Does Not Preclude Issuing Permits to For-
Profit Entities.
¶ 34 Hobbs also argues that section 25-12-103(11) only authorizes
Salida to issue permits to nonprofit entities. Specifically, he argues
15
that by not applying such a restriction, the district court failed to
give effect to the statute’s nonprofit language. We disagree.
¶ 35 As Hobbs correctly notes, just as we may not add words to a
statute, neither may we ignore the words selected by the General
Assembly. Nieto, ¶ 12. Relying on this principle, Hobbs argues that
the district court ignored the phrase “or any other entity not
organized for profit, including, but not limited to, nonprofit
corporations.” § 25-12-103(11). Hobbs contends that this language
dictates a conclusion that a political subdivision may only issue
amplified sound permits to nonprofit entities, but not for-profit
entities like High Side. But that is not what the statute’s plain
language says.
¶ 36 The statute applies broadly to the state, its political
subdivisions, and nonprofit entities. But the statute also applies to
“any of their lessees, licensees, or permittees.” § 25-12-103(11).
The statute does not limit or define what type of entities fall within
the permittee’s status. More specifically, it does not provide that
only nonprofit entities may be issued permits. And for the reasons
previously stated, we may not add such words. See Nieto, ¶ 12.
16
¶ 37 Contrary to Hobbs’s argument, this construction of the statute
does not ignore or fail to give effect to the phrase “or any other
entity not organized for profit, including, but not limited to,
nonprofit corporations.” That language exempts nonprofit entities
from the Act’s noise standards.
¶ 38 Though not clearly expressed by Hobbs, we also reject any
implicit argument that the phrase “any of their lessees, licensees, or
permittees” modifies only the immediately preceding phrase
referring to nonprofit entities. Permits are defined as “a written
warrant or license granted by one having authority.” Merriam-
Webster Dictionary, https://perma.cc/56QE-RDR6; see also
Black’s Law Dictionary 1376 (11th ed. 2019) (defining permittee as
“[s]omeone who has permission to do something”). Permits are
commonly issued by governmental entities, such as the state or its
political subdivisions. Licenses are also frequently issued by the
state or its political subdivisions. A licensee is defined as “[o]ne to
whom a license is granted: someone who has official permission to
do something.” Black’s Law Dictionary at 1105.
¶ 39 Applying noscitur a sociis, which gives phrases meaning by
looking at the words and phrases that surround them, and by
17
utilizing traditional grammatical conventions and syntax, we
conclude that the phrase “any of their lessees, licensees, or
permittees” modifies each of the preceding entities: the state,
political subdivisions of the state, and nonprofit entities. See St.
Vrain, ¶ 22; see also Est. of David v. Snelson, 776 P.2d 813, 818
(Colo. 1989) (“When a referential or qualifying clause follows several
words or phrases and is applicable as much to the first word or
phrase as to the others in the list, . . . the clause should be applied
to all of the words or phrases that preceded it.”).
¶ 40 The primary definition of both licensee and permittee is
someone who has been granted permission to do something.
Although both terms are also sometimes used in the real estate
context, their primary definition relates to the receipt of official
permission to engage in some type of activity. See, e.g., § 44-4-
103(2), C.R.S. 2023 (“‘License’ means a grant to a licensee to sell
fermented malt beverages or fermented malt beverages and wine at
retail . . . .”); § 24-21-602(25), C.R.S. 2023 (“‘License’ means any
license or certification issued by the licensing authority” to operate
bingo or raffle games.); § 13-51.5-102(1), C.R.S. 2023
(“‘Development permit’ means any zoning permit, subdivision
18
approval, certification, special exception, variance, or any other
similar action of a governmental entity that has the effect of
authorizing the development of real property.”); § 42-1-232(1)(c),
C.R.S. 2023 (“‘Permit’ means authority for an organization to
employ people to verify information . . . that may be required to
register a commercial vehicle . . . .”).
¶ 41 Particularly in the regulation of noise emissions, the term
“permit” is frequently used to refer to the authority a local entity
grants to exceed a particular noise limit. See, e.g., Salida Mun.
Code § 10-9-80(a) (“A permit to vary or temporarily waive the
maximum allowable noise levels as specified in this Article may be
applied for and obtained from the City . . . .”); City of Wheat Ridge,
Amplified Sound Event Permit Application, https://perma.cc/B67F-
8M58 (“No outdoor amplified sound event permit may be issued for
an event outside of the hours of 9:00 a.m. and 9:00 p.m. Sunday
through Thursday, and 9:00 a.m. and 10:00 p.m. Friday and
Saturday. Within this time range, outdoor amplified sound events
may be limited in duration as determined by the approving
authority.”); Colo. Springs Mun. Code § 9.8.109 (“Applications for a
permit, for other than vehicular traffic, for relief from the noise level
19
designated in this part on the basis of undue hardship may be
made to the Mayor. Any permit granted by the Mayor shall contain
all conditions upon which the permit has been granted and shall
specify a reasonable time for which the permit shall be effective.”).
¶ 42 We acknowledge that the word “lessee” typically refers to a
leasehold interest in real estate. But that does not limit or qualify
the typical meaning of licensees or permittees. The use of the word
lessees nevertheless serves an important function under 25-12-
103(11). It extends the exemption to those who lease property from
a state, its political subdivisions, and other nonprofit entities,
provided the lessees comply with the applicable permitting process
of the local jurisdiction in which the property is located.
3. The Act Does Not Preempt Salida’s Sound Amplification
Ordinance
¶ 43 Hobbs’s reliance on the preemption language of section 25-12-
108 is also misplaced. Section 25-12-103(11) expressly states that
the Act is “not applicable to the use of property by . . . any political
subdivision of this state, . . . or any of [its] . . . permittees.” Thus,
the Act’s noise standards are not applicable to Salida or its
20
permittee — High Side. Accordingly, the preemption language of
section 25-12-108 also does not apply to the present dispute.
4. Legislative History
¶ 44 Finally, we acknowledge that Hobbs argues the district court’s
statutory construction is inconsistent with the Act’s legislative
history or the amendment that created section 25-12-103(11). But
where, as here, the statute’s language is clear and unambiguous, it
is neither necessary nor appropriate to resort to legislative history
to interpret the statute.2 See, e.g., Smith v. Exec. Custom Homes,
Inc., 230 P.3d 1186, 1189 (Colo. 2010). Rather, we apply the
statute as written. Id.2 Similarly, the amendment’s title is irrelevant absent a statutory
ambiguity. As the supreme court recently explained,
[A] title cannot limit the plain meaning of a
more specific provision within a statute. See
Whitman v. Am. Trucking Ass’ns, 531 U.S. 457,
483 (2001). Instead, the title is useful for
purposes of statutory interpretation only when
it “shed[s] light on some ambiguous word or
phrase in the statute itself.” Id. (alteration
omitted) (quoting Carter v. United States, 530
U.S. 255, 267 (2000)).
Arvada Vill. Gardens LP v. Garate, 2023 CO 24, ¶ 14.
21
¶ 45 Even if we were to conclude that the amendment is
ambiguous, the legislative history does not support Hobbs’s
contention that the statutory exemption for permittees should be
limited to events occurring on property owned by the state, its
political subdivisions, or nonprofit entities. As the dissent notes,
the legislative history supports the conclusion that the amendment
was prompted by a desire to ensure that the Act would not prohibit
the development and use of Fiddler’s Green Amphitheatre in
Arapahoe County. And it is also true that at various legislative
hearings, there were references to performances held at other public
venues, such as Folsom Field and the State Fair.
¶ 46 But the hearings contain no statements by any person that
the amendment was intended to apply to permittees only if the
permittees were using property owned by the state, its political
subdivisions, or nonprofit entities. Rather, Representative Schauer
— the amendment’s sponsor — stated unequivocally that “what [the
amendment] does is provide the opportunity for that, on public or
private property, . . . for cultural, entertainment, athletic, or
patriotic events.” Hearing on H.B. 1340 before the H. Fin. Comm.,
56th Gen. Assemb., 1st Reg. Sess. (Apr. 1, 1987). Obviously,
22
private property does not include property owned by the state or its
political subdivisions. And Representative Schauer’s reference to
private property was not restricted to property owned by nonprofit
entities. To the contrary, this statement reflected the legislative
intent that the amendment would apply to duly permitted uses on
all public or private property.
¶ 47 We also reject Hobbs’s contention that the district court’s
interpretation of the statute leads to an absurd result because it
renders the Act completely ineffectual. We disagree. The Act
applies to all areas of Colorado except those that the General
Assembly has expressly excluded from its application. And, of
course, the exception created by section 25-12-103(11) is limited to
“cultural, entertainment, athletic, or patriotic events, including, but
not limited to, concerts, music festivals, and fireworks displays”
that are duly permitted by the local jurisdiction. Thus, the Act
continues to serve its laudatory purposes across the bulk of the
state.
¶ 48 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,
23
athletic, or patriotic events, rather than subject these events to a
statewide, unbending mandate. Indeed, local control was a central
theme in the legislative hearings. When various legislators
expressed concerns about the potential impact on adjacent
landowners, Representative Groff stated that all the amendment
does “is allow the local government to issue the permits and to
issue what those noise standards would have to be in those
particular open air concerts.” 2d Reading on H.B. 1340 before the
H., 56th Gen. Assemb., 1st Reg. Sess. (Apr. 13, 1987). As
Representative Groff recognized, the final sentence of 25-12-103(11)
maintains and reiterates the authority of counties, cities, and towns
to regulate noise issues within their jurisdictions: “This subsection
shall not be construed to preempt or limit the authority of any
political subdivision having jurisdiction to regulate noise
abatement.”
¶ 49 The legislature’s foresight also alleviates the parade of
absurdities envisioned by Hobbs and the dissent. Our
interpretation of the statute does not enable nonprofit entities to
issue noise permits that exceed the statewide limit. This argument
conflates the limited exemption granted by section 25-12-103(11)
24
with a grant of authority to issue amplified noise permits. Political
subdivisions of the state — counties, cities, and towns — control
the issuance of amplified noise permits, a reality that section 25-12-
103(11) recognizes.
¶ 50 Thus, the forecasted absurdities are not legally possible
because notwithstanding the exemption created by section 25-12-
103(11), the amendment does not allow doctors, lawyers, or those
who hold a driver’s license to exceed the applicable noise limits. To
the contrary, the last sentence of the amendment preserves “the
authority of any political subdivision having jurisdiction to regulate
noise abatement.” § 25-12-103(11).
¶ 51 Finally, the General Assembly’s decision to defer to the
discretion of local governmental entities in setting noise levels does
not leave the public without a remedy. Concerned residents, such
as Hobbs and other interested parties, were allowed to participate
in the amendment process. Based on their concerns, Salida’s
elected officials modified the sound amplification ordinances in a
manner that they thought best met the needs of Salida’s residents.
The fact that such a remedy does not always lead to the particular
25
result desired by a particular party does not mean that the statute,
or the political process that it contemplates, is absurd.
¶ 52 We perceive no error in the district court’s conclusion that
Hobbs’s claims failed as a matter of law.
III. Necessary Parties
¶ 53 High Side argued, in the alternative, that the district court
erred by denying its motion to dismiss for failure to join necessary
parties. Because we have concluded that the district court correctly
entered judgment in High Side’s and Salida’s favor under section
25-12-103(11), we do not need to address High Side’s alternative
argument. Thus, we express no opinion whether other parties
holding noise permits were necessary parties to Hobbs’s claims.
IV. Attorney Fees
¶ 54 Both Salida and High Side request an award of attorney fees
against Hobbs. Neither of them, however, cites any legal authority
or develops any argument in support of its requests. We therefore
decline to further address their claims. See C.A.R. 39; Foster v.
Plock, 2016 COA 41, ¶ 63.
¶ 55 Hobbs requests an award of attorney fees against Salida and
High Side, asserting that their arguments for declaratory relief
26
based on section 25-12-103(11) were frivolous and groundless, and
that High Side’s argument for dismissal based on the failure to join
indispensable parties was also frivolous and groundless. Because
Hobbs develops this request with citations to authority and
argument, we address it on the merits.
A. Applicable Law
¶ 56 Section 13-17-102, C.R.S. 2023, provides that a court shall
award attorney fees against any party who has defended a civil
action, in whole or in part, that lacked substantial justification.
§ 13-17-102(2), (4). As used in the statute, the phrase “‘lacked
substantial justification’ means substantially frivolous,
substantially groundless, or substantially vexatious.” Id.
¶ 57 A defense is substantially frivolous if “the proponent can
present no rational argument based on the evidence or law in
support of [it].” Mulberry Frontage Metro. Dist. v. Sunstate Equip.
Co., 2023 COA 66, ¶ 42 (alteration in original) (quoting City of
Aurora v. Colo. State Eng’r, 105 P.3d 595, 620 (Colo. 2005)). A
defense is substantially groundless if it is not supported by any
credible evidence. Id. (citing City of Aurora, 105 P.3d at 618). A
27
defense is substantially vexatious if it is brought or maintained in
bad faith or to annoy or harass another. Id.
B. Application
¶ 58 Contrary to Hobbs’s assertion, Salida’s and High Side’s
motions to dismiss were not substantially frivolous, groundless, or
vexatious. Indeed, we have affirmed the district court’s conclusion
that Salida and High Side are entitled to judgment as a matter of
law on all of Hobbs’s claims. And although we did not need to
resolve the merits of High Side’s necessary parties defense, we are
satisfied that the defense did not lack substantial justification.
¶ 59 Accordingly, we reject Hobbs’s request for an award of
attorney fees against Salida and High Side.
V. Disposition
¶ 60 The district court’s judgment is affirmed.
JUDGE HAWTHORNE concurs.
JUDGE J. JONES dissents.
28
JUDGE J. JONES, dissenting.
¶ 61 The City of Salida gave High Side! Bar and Grill (High Side), a
privately owned, for-profit food and beverage establishment, permits
to exceed noise limits established by section 25-12-103, C.R.S.
2023, despite the fact Salida doesn’t have any property interest in
the property on which High Side operates. The majority concludes
that Salida has the authority to issue such permits under section
25-12-103(11). Because I disagree with that conclusion, and
because I conclude that the district court didn’t err by declining to
dismiss Matthew Hobbs’ complaint for failure to join indispensable
parties (an issue High Side raises on cross-appeal), I respectfully
dissent.
I. Background
¶ 62 The General Assembly has declared that “noise is a major
source of environmental pollution which represents a threat to the
serenity and quality of life in the state of Colorado.” § 25-12-101,
C.R.S. 2023. So it established “statewide standards,” id., for noise
limits, which can be found in section 25-12-103. The highest such
29
noise limit is 80 db(A).3 That limit applies only to “[i]ndustrial”
zones, and only then between the hours of 7 a.m. and 7 p.m. § 25-
12-103(1).4
¶ 63 The permits Salida issued to High Side allowed noise up to
85db(A) at nighttime, when the limit at High Side, a commercial
establishment, would otherwise be 55 db(A). See id.5 This would
seem to run afoul of sections 25-12-101, 25-12-103(1), and 25-12-
108, C.R.S. 2023, the latter of which says that nothing in title 25,
article 12 shall “be construed to preempt or limit the authority of
any municipality or county to adopt standards that are no less
restrictive than the provisions of [title 25, article 12].” (Emphasis
added.) In other words, a municipality like Salida may adopt noise-
level standards that are more restrictive than the state standards,
but not standards that are less restrictive than the state standards:
the state statutory standards for noise levels are the ceilings.
3 Section 25-12-102(3), C.R.S. 2023, describes this “decibel” unit of
noise measurement.
4 During the hours between 7 a.m. and 7 p.m., noise may exceed
the usual limit by 10 db(A) for no more than fifteen minutes of each
hour. § 25-12-103(2), C.R.S. 2023.
5 As discussed in section 25-12-102(3), such a 30 db(A) difference
is, to put it mildly, substantial.
30
¶ 64 But that brings us to section 25-12-103(11), which exempts
some entities from the statewide standards. It provides as follows:
This article is not applicable to the use of
property by this state, any political subdivision
of this state, or any other entity not organized
for profit, including, but not limited to,
nonprofit corporations, or any of their lessees,
licensees, or permittees, for the purpose of
promoting, producing, or holding cultural,
entertainment, athletic, or patriotic events,
including, but not limited to, concerts, music
festivals, and fireworks displays. This
subsection (11) shall not be construed to
preempt or limit the authority of any political
subdivision having jurisdiction to regulate
noise abatement.
¶ 65 The majority concludes that High Side qualifies as a
“permittee” of a “political subdivision of this state” under this
exemption simply because Salida gave High Side permits to exceed
the statewide statutory noise limits. With respect, that
construction of section 25-12-103(11) fails to account for that
section’s language as a whole and that of the related statutory
scheme, renders language in that section superfluous, leads to
illogical and absurd results, and is inconsistent with the statute’s
legislative history.
31
II. Hobbs’ Appeal
A. Standard of Review and Applicable Law
¶ 66 We review questions of statutory interpretation de novo.
Edwards v. New Century Hospice, Inc., 2023 CO 49, ¶ 14.
¶ 67 Our primary task in interpreting a statute is to give effect to
the General Assembly’s intent. Id. To determine that intent, we
first look to the plain and ordinary meanings of the words and
phrases used in the statute. Krol v. CF & I Steel, 2013 COA 32,
¶ 15. But we do so considering those words and phrases “in the
dual contexts of the statute as a whole and the comprehensive
statutory scheme, giving consistent, harmonious, and sensible
effect to all of the statute’s language.” Id. And “[w]e must avoid any
constructions that would render any words or phrases superfluous
or that would lead to illogical or absurd results.” Dep’t of Revenue
v. Agilent Techs., Inc., 2019 CO 41, ¶ 16.
¶ 68 If, after applying these principles, we conclude that the
language is susceptible of but one reasonable interpretation, we
stop there and enforce the statute as written. Antero Res. Corp. v.
Airport Land Partners, Ltd., 2023 CO 13, ¶ 13. But if we conclude
that the statute is susceptible of multiple reasonable interpretations
32
— that is, it is ambiguous — then we may look to other indicators of
legislative intent, such as the object sought to be obtained, the
legislative history, the consequences of a particular construction,
and the legislative declaration of purpose. § 2-4-203, C.R.S. 2023;
see State v. Nieto, 993 P.2d 493, 501 (Colo. 2000).
B. Analysis
¶ 69 As I see it, the majority’s reasoning falters most fundamentally
by failing to read the statutory language as a whole. The majority
construes the term “permittees” in isolation, without considering
the language preceding it. See Lewis v. Taylor, 2016 CO 48, ¶ 20
(we don’t read statutory words in isolation, but in context).
Subsection (11) begins by saying article 12 isn’t applicable to “the
use of property” by three types of entities — the state, political
subdivisions of the state, and “any other entity not organized for
profit.” It then identifies three subcategories of property users —
“their lessees, licensees, and permittees” — for each of the three
categories of not-for-profit property users.6 § 25-12-103(11). But
6 The subsection’s use of the term “their” clearly refers to the state,
political subdivisions of the state, and other entities not organized
for profit.
33
under the majority’s construction of subsection (11), even though
lessors, licensees, and permittees are subcategories of the state,
political subdivisions of the state, and other entities not organized
for profit (a proposition even High Side concedes),7 the property they
may use for the purposes identified in subsection (11) isn’t limited
to “property used by” the entities in the primary categories. In
other words, the majority deems the statutory limitation to the “use
of property” by entities in the three primary categories inapplicable
to entities in the three subcategories. If that is what the General
Assembly intended, it had a strange way of saying so. Indeed, that
construction leads to absurd results.
¶ 70 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, as long as the noise is caused by one of the statutorily
7 “When a referential or qualifying clause follows several words or
phrases and is applicable as much to the first word or phrase as to
the others in the list, . . . the clause should be applied to all of the
words or phrases that preceded it.” Est. of David v. Snelson, 776
P.2d 813, 818 (Colo. 1989); see § 2-4-214, C.R.S. 2023 (abrogating
the “last antecedent” rule, whereby qualifying phrases were deemed
to apply only to the last antecedent to which they were closely
connected).
34
identified events. That result can’t be squared with the purpose of
the statute as expressed in section 25-12-101 and emphasized by
the preemption provision, section 25-12-108. And, more absurdly,
that power would apply not only to the state and political
subdivisions of the state — like Salida — but to “any other entity
not organized for profit”: any nonprofit entity, “including, but not
limited to, nonprofit corporations,” § 25-12-103(11), could issue a
permit to anyone anywhere in the state to violate the statewide
noise standards for the statutorily identified events — again,
without any limitation as to noise level, duration, or frequency.
¶ 71 The majority’s construction also fails to consider and give
effect to all three subcategories of property users, in various ways.
¶ 72 First, no entity would give a lease to someone to exceed the
statewide standards. Yet, one subcategory of property users is
“lessees” of the state, political subdivisions of the state, and any
other entities not organized for profit. The term obviously applies to
those who lease property from one of those three categories of
entities. So any such lessee isn’t subject to the statewide
standards, and without any need for a license or permit; otherwise,
“lessees” is redundant. See § 2-4-201(1)(b), C.R.S. 2023 (we must
35
presume that “[t]he entire statute is intended to be effective”);
Wolford v. Pinnacol Assurance, 107 P.3d 947, 951 (Colo. 2005) (we
must avoid a statutory interpretation that renders any provision
redundant or superfluous).
¶ 73 Second, the ramifications of the majority’s interpretation of the
term “permittees” on the adjacent term “licensees” are profound. If
“licensees” is construed without regard to context — like the
majority construes “permittees” — only two results, both seemingly
impermissible, are possible: (1) anyone to whom the state or any of
its political subdivisions has issued a license of any kind isn’t
subject to the statewide standards or (2) the state or any of its
political subdivisions (and any other entity not organized for profit)
may issue a license to anyone to exceed the statewide standards.
The first result is absurd. 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. The
second result renders “licensees” redundant of “permittees.” After
all, what would be the difference between a license to exceed the
statewide standards and a permit to do so? This result, which the
36
majority adopts, see supra ¶ 40, violates the well-established canon
of statutory construction that we presume the legislature means
different things when it uses different words. See Colo. Med. Bd. v.
Off. of Admin. Cts., 2014 CO 51, ¶ 19 (“[T]he use of different terms
signals the General Assembly’s intent to afford those terms different
meanings.”); Wolford, 107 P.3d at 951.
¶ 74 The only way, then, to read the exception in subsection (11) in
a sensible way that gives effect to all of its parts is to construe it as
limited to property used by the state, political subdivisions of the
state, and any other entity not organized for profit, and any other
entity that uses property used by those three primary categories of
entities — whether by lease, license, or permit.8
8 A common definition of a “licensee” was, when section 25-12-
103(11) was enacted, “a person who has a privilege to enter upon
land arising from permission or consent, express or implied, of the
possessor of land but who goes on the land for his own purpose
rather than for any purpose or interest of the possessor.” Black’s
Law Dictionary 830 (5th ed. 1979); see also § 13-21-115(5)(b),
C.R.S. 1990 (defining “licensee” for purposes of the Premises
Liability Act as “a person who enters or remains on the land of
another for the licensee’s own convenience or to advance his own
interests, pursuant to the landowner’s permission or consent”).
This definition of licensee sensibly applies to the real property-
focused exemption of section 25-12-103(11), particularly in light of
the alternative meaning (e.g., a driver’s license), which would be
extraordinarily (indeed, absurdly) broad.
37
¶ 75 This interpretation is strongly — I would say conclusively —
supported by the legislative history of subsection (11).9 That
exception was added to section 25-12-103 in 1987. The title of the
bill adding the exception was “AN ACT CONCERNING THE
EXEMPTION OF PROPERTY USED BY NOT FOR PROFIT ENTITIES
FOR PUBLIC EVENTS FROM STATUTORY MAXIMUM
PERMISSIBLE NOISE LEVELS.” Ch. 212, 1987 Colo. Sess. Laws
1154.10 This indicates that the exception was intended to apply
only to property used by not-for-profit entities. See City of Ouray v.
Olin, 761 P.2d 784, 789 (Colo. 1988) (court may consider the title of
legislation in resolving uncertainties concerning legislative intent;
holding the title of the legislation there at issue — “[A]n act
concerning compensation of county employees” — indicated that it
was intended to apply only to county employees).
9 If the statutory language doesn’t clearly support my interpretation,
it is at least ambiguous, justifying consideration of legislative
history. See § 2-4-203, C.R.S. 2023.
10 All three categories of primary entities in subsection (11) are not-
for-profit entities. Recall, subsection (11) identifies those entities as
“this state, any political subdivision of this state, or any other entity
not organized for profit.” § 25-12-103(11) (emphasis added).
38
¶ 76 At hearings before House and Senate committees and in
readings of the bill before the House and Senate, the bill’s sponsors,
Representative Schauer and Senator Bird, and other legislators,
indicated the following:
 Representative Schauer told the House Finance
Committee that the bill would apply to concerts at, for
example, Washington Park in Denver and Fiddler’s Green
Amphitheatre. Immediately after Representative Schauer
explained that the bill would “provide the opportunity for,
on public or private property, for cultural, entertainment,
athletic, or patriotic events,” Representative Groff, in a
moment of levity, asked facetiously whether H.B. 1340
was “the Fiddler’s Green Bill.” Everyone laughed.
Representative Schauer confirmed that Fiddler’s Green,
which was in his district, was the impetus for the bill,
and referred to Fiddler’s Green as being owned by a
“private, nonprofit facility.” (Emphasis added.) Another
representative mentioned fireworks at the State Fair
Grounds in Pueblo. Representative Thiebaut said it
would allow the Air Force Academy Band to perform at
39
Memorial Park in Colorado Springs. Representative
Schauer confirmed that the city could issue a “permit” for
such a performance. Hearing on H.B. 1340 before the H.
Fin. Comm., 56th Gen. Assemb., 1st Reg. Sess. (Apr. 1,
1987).
 During second reading of the bill in the House,
Representative Schauer said the bill was intended to deal
with “open air concerts that would be performed at any
property, whether that be state, city or county, or a
nonprofit facility.” 2d Reading on H.B. 1340 before the
H., 56th Gen. Assemb., 1st Reg. Sess. (Apr. 13, 1987)
(emphasis added).11 The impetus for the bill was
anticipated development at Fiddler’s Green Amphitheatre
in Arapahoe County (which, as noted, was owned by a
private, nonprofit entity). Representative Schauer also
mentioned Washington Park in Denver as a covered
venue. Representative Groff also spoke about concerts at
11 The majority opinion doesn’t acknowledge this statement, which
contradicts the majority’s assertion that Representative Schauer
didn’t limit his references to private property to such property used
by not-for-profit entities.
40
Washington Park, such as those given by the “Denver
Symphony Orchestra,” and said the bill would allow the
city to “issue the permits” to allow performances at such
places for “those particular open-air concerts.” Id.12
 During a hearing before the Senate State Affairs
Committee, Senator Bird said the bill would apply to
venues such as Washington Park, Folsom Field at the
University of Colorado in Boulder, and Fiddler’s Green
Amphitheatre. In response to a question by a committee
member, Senator Bird said that the bill would allow for a
for-profit rock concert at Folsom Field because Folsom
Field is owned by a nonprofit entity (the state). Hearing
on H.B. 1340 before the S. State Affairs Comm., 56th
Gen. Assemb., 1st Reg. Sess. (Apr. 27, 1987).13
12 Though the majority opinion relies on the statement by
Representative Groff, it omits the first part of her statement, which
was about “Denver Symphony Orchestra” concerts at Washington
Park, a city-owned property. It was those concerts Representative
Groff was clearly referring to when she mentioned “those particular
open-air concerts.” 2d Reading on H.B. 1340 before the H., 56th
Gen. Assemb., 1st Reg. Sess. (Apr. 13, 1987) (emphasis added).
13 The majority opinion does not acknowledge this statement.
41
 Senator Bird said at a reading of the bill in the Senate
that it would apply to venues such as Fiddler’s Green
Amphitheatre and the State Fair Grounds in Pueblo (to
allow for a concert by, for example, Willie Nelson). 2d
Reading of H.B. 1340 before the S., 56th Gen. Assemb.,
1st Reg. Sess. (Apr. 30, 1987).
¶ 77 To me, all of these statements indicate that the real property
subject to the bill is limited to that real property used by the state,
a political subdivision of the state, or any other not-for-profit entity.
There was nary a mention during any hearing on or reading of the
bill of potential applicability to private property not owned by a not-
for-profit entity, such as High Side.
Therefore, I respectfully dissent from the majority’s
interpretation of section 25-12-103(11).
III. High Side’s Cross-Appeal
¶ 78 High Side cross-appeals the district court’s denial of its motion
to dismiss for failure to join indispensable parties — specifically,
thirty-eight other entities to which Salida has issued permits to
exceed statewide noise standards. I would affirm that aspect of the
district court’s judgment.
42
¶ 79 Accetta v. Brooks Towers Residences Condominium Ass’n, 2019
CO 11, is the Colorado Supreme Court’s most recent
pronouncement on how courts should determine whether a
nonparty is indispensable and must be joined. That case, like this
one, was a declaratory judgment action. The court held that joinder
isn’t required when a present party adequately represents the
interests of an absent party. In this case, Salida and High Side’s
interests are aligned with those of any other permittees such that
they can be expected to have made the absent party’s arguments,
Salida and High Side are capable of and willing to make those
arguments, and any absent permittee wouldn’t offer any necessary
element to the proceedings that Salida and High Side would neglect.
See id. at ¶ 19. Therefore, the district court didn’t err by refusing to
dismiss Hobbs’ complaint for failure to join indispensable parties.14
IV. Conclusion
¶ 80 In sum, I would reverse the judgment and remand for entry of
appropriate declaratory and injunctive relief.
14 I also observe that Salida issues its permits for very short periods
of time. Those holding permits on a particular day change
frequently, perhaps daily. This would make joinder as advocated by
High Side a practical impossibility.
43