The Colorado Court of Appeals rejected an appeal by Citizens for Quiet Skies and six individual plaintiffs, led by Kimberly Gibbs of Gunbarrel.

Noise from Aircraft

The court’s decision, which came just 10 days after the case was argued by attorneys during a Court of Appeals session at Fairview High School, affirmed substantially all of District Judge Judy LaBuda’s ruling.

Judge Roman wrote the opinion for the court and was joined by Judges Lichtenstein and Freyre.

The plaintiffs sued Mile-Hi Skydiving Center, Inc., which operates out of Vance Brand Airport in Longmont, claiming that the noise and vibrations from the airplanes constituted a nuisance under the law. The trial court granted summary judgment on claims for trespass and unjust enrichment before trial, then conducted a five-day trial, which included a site visit to Gibbs’ home on Mt. Sherman Road by Judge LaBuda.

During the trial, the plaintiffs claimed that the defendants were negligent, that their actions constituted negligence under a Longmont city ordinance, and that the defendant’s conduct amounted to a nuisance.

The trial court ruled that the plaintiffs failed to prove their case, and awarded attorney fees to the defendants for having to defend what the court considered frivolous and groundless claims for unjust enrichment and medical damages, among others. When the plaintiffs asked the court to reconsider the award of attorney fees, the court declined to do so and awarded more attorney fees to the defendants.

The appellate decision affirmed the finding by the trial court that Longmont’s 55-decibel limit for residential areas during the daytime did not apply because the ordinance exempts activities approved by the city, including a 65-decibel average sound level for airport activities.

The Court of Appeals ruled that the trial court applied the correct legal standard for a nuisance claim, which requires that the defendant “unreasonably interfered with the use and enjoyment of her [plaintiff’s] property.”

In making its determination that it did not, the trial court found that the defendant’s activity contributed only a fraction of the overall noise in the area, that it was negligible when compared with all aircraft noise in the area, that it was less than the limit set by the federal government for receipt of federal funds, that others living near the airport did not experience disruptions due to noise by defendant, that the plaintiffs were more sensitive to defendant’s noise than normal members of the community and that the harm to plaintiffs was not severe.

A footnote to the decision, noting that to the extent the trial court relied on defendants’ compliance with federal regulatory standards (65-decibels) in making its determination, the reliance was in error, gave the plaintiffs some comfort. But the Court of Appeals noted that even if it did, there was sufficient separate evidence to support the trial court’s ruling.

The attorney fees portion of the decision was returned to the trial court to make additional findings. The plaintiffs have the option of seeking review by the Colorado Supreme Court, but that review is in the discretion of the Supreme Court.

Source: Left Hand Valley Courier, to read the article click here.