HomeMy WebLinkAbout2020CV30580 - City Of Fort Collins V. Board Of County Commissioners Of Larimer County, Colorado And Streetmediagroup, Llc - 021 - City's Response To Motion To DismissDISTRICT COURT, COUNTY OF LARIMER,
COLORADO
Larimer County Justice Center
201 Laporte Avenue, Suite 100
Fort Collins, Colorado 80521-2762
(970) 498-6100
______________________________________________
Plaintiff: THE CITY OF FORT COLLINS,
COLORADO, a municipal corporation,
v.
Defendants: BOARD OF COUNTY COMMISSIONERS
OF LARIMER COUNTY, COLORADO;
STREETMEDIAGROUP, LLC
______________________________________________
Andrew D. Ringel #24762
Hall & Evans, L.L.C.
1001 17th Street, Suite 300
Denver, CO 80202
303-628-3300
Fax: 303-628-3368
ringela@hallevans.com
John R. Duval #10185
Deputy City Attorney
Claire Havelda #36831
Assistant City Attorney
City Attorney’s Office
300 Laporte Avenue
P.O. Box 500
Fort Collins, Colorado 80522
970-221-6652
Fax: 970-221-6327
jduval@fcgov.com
chavelda@fcgov.com
Attorneys for Plaintiff
▲COURT USE ONLY ▲
_________________________
Case Number: 2020CV030580
Division: 4B
PLAINTIFF’S RESPONSE TO DEFENDANT STREETMEDIAGROUP, LLC’S
MOTION TO DISMISS PLAINTIFF’S COMPLAINT
DATE FILED: October 23, 2020 12:08 PM
FILING ID: 577B70D840207
CASE NUMBER: 2020CV30580
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Plaintiff City of Fort Collins, by and through its attorneys, Andrew D. Ringel, Esq., of Hall
& Evans, L.L.C. and John R. Duval, Esq., Deputy City Attorney, and Claire Havelda, Esq.,
Assistant City Attorney, of the Fort Collins City Attorney’s Office, hereby respectfully submits
this Response to Defendant StreetMediaGroup, LLC’s Motion to Dismiss Plaintiff’s Complaint,
as follows:
INTRODUCTION
Plaintiff City of Fort Collins, Colorado (“the City”), on August 25, 2020, filed its
Complaint for Review Pursuant to C.R.C.P. 106(a)(4) for review by this Court of the July 28,
2020, Findings and Resolution Approving the Street Media Group Sign Appeal (“Findings and
Resolution”) of Defendant Board of County Commissioners of Larimer County, Colorado (“Board
or “Larimer County”) concerning a proposed billboard to be erected by Defendant
StreetMediaGroup, LLC (“StreetMediaGroup”) on property located at 4414 East Harmony Road
(“the Property”). [See Complaint for Review Pursuant to C.R.C.P. 106(a)(4) (“Complaint”)].
Larimer County filed its Answer on September 17, 2020. [See Defendant Board of County
Commissioners’ Answer (“Answer”)].
Defendant StreetMediaGroup filed its Motion to Dismiss Plaintiff’s Complaint (“Motion”)
on September 22, 2020. The City now respectfully responds to StreetMediaGroup’s Motion.
No legitimate basis exists for this Court to dismiss Plaintiff’s Complaint as a matter of law.
Initially, the validity of StreetMediaGroup’s arguments must be evaluated by this Court based on
the reality that the Board - the actual governing body responsible for the decision subject to the
City’s Complaint - has not moved to dismiss or argued the City lacks standing or its Complaint
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was untimely filed. Instead, StreetMediaGroup, named as a Defendant in this action, files the
Motion.1 Further, StreetMediaGroup’s arguments in their Motion are without any legal merit.
First, the City has legal standing to challenge the Board’s decision as an adjacent property
owner. The City is the owner of the Arapaho Bend Natural Area immediately adjacent to the
Property. [R. Vol. I, at 95].2 Notably absent from StreetMediaGroup’s analysis in its Motion is
any discussion of the City’s status as an adjacent property owner and the applicable precedent
decided many years ago by the Colorado Supreme Court holding a home rule city, like Fort Collins,
has standing as an adjacent property owner to challenge a county land-use decision.
Second, the City’s Complaint was timely filed pursuant to C.R.C.P. 106(b). Until the
Board issued its Findings and Resolution on July 28, 2020, with the necessary and required
findings of fact and conclusions of law supporting its decision, the quasi-judicial process before
the Board was not a “final decision” as contemplated in C.R.C.P. 106(b) and the 28-day time
period for the City to file its Complaint had not yet started. StreetMediaGroup’s argument the
Board’s vote at the conclusion of the June 1, 2020, hearing, to approve the appeal without the
Board making any findings of fact or conclusions of law is inconsistent with two applicable
decisions from the Colorado Court of Appeals. It is also inconsistent with applicable provisions
1 StreetMediaGroup was named as a Defendant because under Colorado law it is a
necessary party to these proceedings as the applicant in the proceeding before the Board. See
Auxier v. McDonald, 363 P.3d 747, 753 (Colo. App.).
2 This Court may take judicial notice of the contents of the Certified Record before this
Court in considering the Motion to Dismiss pursuant to C.R.E. 201. See Doyle v. People, 2015
CO 10, ¶ 15 (describing court taking judicial notice of its own records under C.R.E. 201); Massey
v. People, 649 P.2d 1070, 1073 (Colo. 1982); Hatch v. Wagner, 590 P.2d 973, 976 (Colo. App.
1978). This Court may take judicial notice of its file without converting StreetMediaGroup’s
Motion to Dismiss into one for summary judgment. Walker v. Van Laningham, 148 P.3d 391,
397-98 (Colo. App. 2006); Tal v. Hogan, 453 F.3d 1244, 1264 n. 24 (10th Cir. 2006).
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of the Larimer County Land Use Code (“LCLUC”), inconsistent with the Board not raising this
purported untimeliness in its Answer and inconsistent with the Board’s approach in other C.R.C.P.
106(a)(4) reviews before this Court. Moreover, it is inconsistent with the need for this Court to
have appropriate findings of fact and conclusions of law to review pursuant as contemplated in
C.R.C.P. 106(a)(4)(IX).3
Third, StreetMediaGroup’s claim the City’s Complaint itself violates its First Amendment
constitutional rights provides no basis to dismiss the City’s Complaint and represents a potential
issue for review by this Court, if applicable and appropriate, as part of this Court’s judicial review
of the actual decision by the Board, not now because the issue is not germane to the standing and
untimeliness arguments raised by StreetMediaGroup in its Motion.
ARGUMENT
I. THE CITY HAS STANDING TO SEEK REVIEW OF THE
BOARD’S QUASI-JUDICIAL APPROVAL OF STREETMEDIAGROUP’S
APPEAL PURSUANT TO C.R.C.P. 106(a)(4)
Whether the City has standing is a determination of law for this Court. Barber v. Ritter,
196 P.3d 238, 245 (Colo. 2008). In determining whether standing has been established, this Court
must accept as true all material allegations of fact in the City’s Complaint. Reeves-Toney v. Sch.
Dist. No. 1, 442 P.3d 81, 85 (Colo. 2019); State Bd. of Cmty. Colleges & Occupational Educ. v.
Olson, 687 P.2d 429, 434 (Colo. 1984).
3 C.R.C.P. 106(a)(4)(IX): “In the event the court determines that the governmental body,
officer or judicial body has failed to make findings of fact or conclusions of law necessary for
review of its action, the court may remand for the making of such findings of fact or conclusions
of law.”
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For purposes of this Court’s standing analysis, the City unambiguously pled in its
Complaint: “The Property is also immediately adjacent to property owned by the City.” [See
Complaint, ¶ 22]. Larimer County has admitted this allegation. [See Answer, ¶ 22 (“The Board
admits the Property directly abuts a parcel owned by Fort Collins.”)]. The City also specifically
pled in the Complaint and in the attached April 29, 2020, letter from City Manager Darin Atteberry
to Larimer County Manager Linda Hoffman, the adverse impact on the City owned-property from
the proposed billboard. [See Complaint, ¶ 38 & Exhibit D]. The City’s ownership of adjacent
property is dispositive of this Court’s standing inquiry.
In Board of County Commissioners of the County of Adams v. City of Thornton, 629
P.2d 605 (Colo. 1981), nearly forty years ago, the Colorado Supreme Court addressed and decided
the issue holding a Colorado home rule municipality may challenge a county zoning decision if it
has adverse impact on adjacent municipally-owned property. Initially, the Colorado Supreme
Court framed the issue as follows:
We have held that an owner of property adjacent to rezoned land has
standing to challenge rezoning which adversely affects his property. Dillon
Companies v. City of Boulder, 183 Colo. 117, 515 P.2d 627 (1973); accord,
Bedford v. Board of County Commissioners, 41 Colo. App. 125, 584 P2d 90
(1978); Snyder v. City Council, 35 Colo. App. 32, 531 P.2d 643 (1974). Implicit
in these decisions is the conclusion that a complaining property owner, such as the
City here, has a legally protected interest in insulating its property from adverse
effects caused by legally deficient rezoning of adjacent property.
Unless a different result is required because the City property is within the
City limits, while the rezoning was accomplished by a separate governmental entity
and is limited to property outside the City limits, the City should be recognized to
have standing under Wimberly to challenge the County’s actions. We now consider
whether standing must be denied to the City because of an asserted disability of one
governmental entity to challenge the zoning decision of another or because of an
asserted principle that property owners in one jurisdiction lack the right to challenge
zoning changes made by an adjoining jurisdiction.
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Id. at 609. After analyzing all the county’s arguments against standing, the Colorado Supreme
Court held the City of Thornton as an adjoining property owner possessed standing to challenge
Adams County’s zoning decision. Id. at 609-11.
Subsequent decisions have followed both the analysis and conclusion in City of Thornton.
See, e.g., Board of County Comm’rs v. Denver Bd. of Water Comm’rs, 718 P.2d 235, 236 & 240-
42 (Colo. 1986) (Arapahoe County, Adams County and Jefferson County had standing to challenge
to seek to compel the Denver Water Board to supply water to their residents); Wells v. Lodge
Props., Inc., 976 P.2d 321, 324 (Colo. App. 1998) (“A property owner has a legally protected
interest in protecting its property from adverse effects caused by legally deficient rezoning of
adjacent property, and has standing to challenge such rezoning. Hence, if an adjoining
landowner’s interest in the property is adversely affected by a rezoning decision, the landowner
has a right to seek judicial relief.”; citations including City of Thornton omitted); Greeley v. Bd.
of County Comm’rs, 644 P.2d 76, 76 (municipalities in Weld County had standing to challenge
county resolution transferring general fund money to the road and bridge fund).4 Under these
decisions, the City, a home-rule municipality like Thornton, possesses standing to challenge the
Board’s approval of StreetMediaGroup’s billboard as an adjacent property owner.
Moreover, StreetMediaGroup’s argument concerning the supposed inferiority of the City
to Larimer County allegedly disabling the City from pursuing this challenge is also directly
4 The Colorado Supreme Court’s standing analysis in City of Thornton has been followed
in other jurisdictions. See, e.g., Moore v. City of Middleton, 975 N.E.2d 977, 987 (Ohio 2011);
Town of Randolph v. Town of Stoughton, 1997 Mass. Super. LEXIS 410 at *16 (Mass. Sup. Ct.
June 23, 1997);
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foreclosed by City of Thornton. [See Motion, at 9-10]. In pertinent part, the Colorado Supreme
Court declared:
We start with the fundamental fact that Thornton is a home-rule city. The
Colorado Constitution imposes constraints on legislative action impinging on the
interests of home-rule cities.
Although the legislature has full power, within constitutional limits, to enact
statutes dealing with matters of statewide concern, a home-rule city is not inferior
to the General Assembly with respect to local and municipal matters. City of
Colorado Springs v. State of Colorado, supra, Denver Urban Renewal Authority
v. Byrne, supra; Four-County Metropolitan Capital Improvement District v.
Board of County Commissioners, 149 Colo. 284, 369 P.2d 67 (1962). A home-
rule City’s powers with respect to local and municipal matters have their source in
our state constitution. Colo. Const. Art. XX, § 6. While planning and zoning for
lands outside the boundaries of a home-rule city may be matters of statewide
concern, the preservation of value of city property is a local and municipal matter.
See Colo. Const. Art. XX, § 6. It is an incident of the City’s express constitutional
powers to hold and enjoy property. See Colo. Const. Art. XX, §§ 1, 6.
Even though county planning and zoning regulations are of statewide
concern, they may adversely affect matters of local and municipal concern. There
is no dispute that such is the case here. Under such circumstances, we conclude
that the Colorado Constitution mandates that a home-rule city be given the right to
challenge the legality of the county’s master plan and zoning ordinances in court. .
. . (Emphasis added.)
City of Thornton, 629 P.2d at 609-10. As alleged in the Complaint, the City is a home rule
municipality. [See Complaint, ¶ 6]. If the City is not inferior to the Colorado General Assembly
in respect to local and municipal matters, as the Supreme Court holds in City of Thornton, it is
also not inferior to counties in such matters. The Supreme Court has recognized a home rule
municipality’s acquisition and ownership of open space and parks is a matter of local and
municipal concern under the home rule amendments in Article XX of the Colorado Constitution.
Town of Telluride v. San Miguel Valley Corporation, 185 P.3d 161, 168 (Colo. 2008). Therefore,
if the City is not inferior to the General Assembly with respect to its ownership of open space and
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parks, like the Arapaho Bend Natural Area adjacent to the Property, it is certainly not inferior to
the County in this matter.
Additionally, the City anticipates StreetMediaGroup may attempt to distinguish City of
Thornton on the basis the City has not pled a diminution in economic value. However, the
aesthetic injury to the City’s adjacent property is sufficient to constitute a legally protected interest
for standing purposes. Ainscough v. Owens, 90 P.3d 851, 855 (Colo. 2004); Rangeview, LLC v.
City of Aurora, 381 P.3d 445, 449 (Colo. App. 2016). The City’s interest in protecting wildlife in
the Arapaho Bend Natural Area from light pollution was articulated to the Board and is a sufficient
interest to establish standing under these cases. [See R. Vol. I, at 95-105].
In addition, the City has a protected interest for its standing in this action based on its
“Intergovernmental Agreement (Regarding Cooperation on Managing Urban Development” dated
June 24, 2008 with the County attached as Exhibit A to the Complaint (“the IGA”). As alleged in
paragraph 16 of the Complaint, the IGA was entered into pursuant to C.R.S. § 29-20-105. Section
29-20-105(1) states:
Local governments are authorized and encouraged to cooperate or contract with other units
of government pursuant to part 2 of article 1 of this title for the purposes of planning or
regulating the development of land including, but not limited to, the joint exercise of
planning, zoning, subdivision, building, and related regulations.
C.R.S. § 29-20-105(1). Sections 29-20-105(2)(a) and (c) further provide that this may include
local governments entering an intergovernmental agreement that adopts a comprehensive master
plan for areas within their jurisdictions, although the application of any such master plan within
their jurisdictions is discretionary unless otherwise provided by ordinance.
The IGA provides in Section 4 that the County will use the City’s “Comprehensive Plan”
as a guideline for development within the City’s “Growth Management Area” located in certain
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unincorporated areas of the County as identified in the IGA (“the GMA”). The Property is within
the City’s GMA. [R. Vol. I, at 95]. Section 4 of the IGA reads:
Comprehensive Plans for the GMA. The County agrees to use the City's Comprehensive
Plan as a guideline for development inside the GMA. The City's Comprehensive Plan
includes any plans for land use, parks, transportation, drainage, natural resources or other
elements deemed necessary by the City to act as a guideline for development inside the
GMA. The City agrees to make its Comprehensive Plan specific enough to give clear
guidance through maps and text to the County and property owners and developers as to
the types, densities and intensities of land use acceptable to the City on any given parcel of
land in the GMA.
[See IGA, § 4, Complaint, Exh. A]. As a result of Section 4 in the IGA, C.R.S. § 29-20-105(2)(g)
is applicable in this matter, stating:
Each governing body that is a party to an intergovernmental agreement adopting a
comprehensive development plan shall have standing in district court to enforce the terms
of the agreement and the plan, including specific performance and injunctive relief. The
district court shall schedule all actions to enforce an intergovernmental agreement and
comprehensive development plan for expedited hearing.
C.R.S. § 29-20-105(2)(g). The IGA therefore provides the City with an additional protected
interest and standing to bring this action.
II. THE CITY’S COMPLAINT WAS TIMELY FILED PURSUANT TO C.R.C.P. 106(b)
StreetMediaGroup argues the City was required to file its Complaint within 28 days of the
Board’s oral approval of its appeal on June 1, 2020, not the Board’s Findings and Resolution issued
on July 28, 2020. [See Motion, at 12-18]. StreetMediaGroup is legally and factually wrong.
First, decisions from the Colorado Court of Appeals on two occasions have held for
purposes of C.R.C.P. 106(b), the time period runs from when a written decision subsequent to an
oral vote is issued. Initially, in Wilson v. Board of County Commissioners of Weld County, 992
P.2d 668 (Colo. App. 1999), the Court of Appeals held the time period for seeking judicial review
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pursuant to C.R.C.P. 106(b) ran from the date the board of county commissioners issued its final
resolution denying the plaintiff’s application, reasoning as follows:
Plaintiffs contend that the trial court erred in holding that the 30-day period
for filing the action began to run on April 30, 1997. Specifically, plaintiffs argue
that such period should be measured from the date the Board members signed the
final revised resolution. We agree.
. . . .
Here, the Board adopted its resolution denying plaintiffs’ required permit at
a public hearing, and plaintiffs acknowledge that fact in their complaint. However,
unlike in 3 Bar J, supra, the Board then issued a written resolution that detailed its
findings and conclusions. The Board’s actions in entering this written resolution
and later revising it demonstrate that at the time of the Board’s vote at the hearing
its action was not complete, “leaving nothing further” for it to decide.
In addition, we are not persuaded by the Board’s alternative argument that
the revised resolution was merely clerical and that the 30-day time period should
have commenced on the date the initial resolution was entered. Regardless of the
nature of the revision, when a written resolution is revised, it is the date of adoption
of the revised version that constitutes the point of administrative finality for
purposes of C.R.C.P. 106(b).
Id. at 670. Sixteen years later, in 1405 Hotel, Inc. v. Colorado Economic Development
Commission, 370 P.3d 309 (Colo. App. 2015), the Court of Appeals reached the same conclusion,
as follows:
We find the division’s conclusion in Wilson instructive. 992 P.2d at 670.
There, Weld County’s Board of County Commissioners adopted a resolution
denying the plaintiff’s requested accessory dwelling permit. Id. at 669. However,
unlike in 3 Bar J, the Board subsequently issued a written resolution detailing its
findings and conclusion. Id. The division concluded that “[t]he Board’s actions in
entering [the] written resolution and later revising it demonstrate that at the time of
the Board’s [initial approval] its action was not complete, ‘leaving nothing further’
for it to decide.” Id. at 670. Likewise, the CEDC’s conduct in initially approving
Aurora’s application in May 2012 and later entering a final written resolution
demonstrates that administrative proceedings were incomplete at the time of the
initial approval.
Id. at 315.
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Under Wilson and 1405 Hotel, the Board’s written Findings and Resolution following its
initial approval by vote at the conclusion of the hearing represents the final step in the Board’s
quasi-judicial proceeding. As such, the City’s Complaint filed within 28 days of the July 28, 2020,
Findings and Resolution was timely pursuant to C.R.C.P. 106(b).
Second, in the opening sentences of its argument that the City has not timely filed its
Complaint under Rule 106(b), StreetMediaGroup states:
The City’s C.R.C.P. 106 Complaint is untimely by more than eight weeks. LCLUC §
22.2.2.B.5.b. provides, ‘at the conclusion of the [appeal] hearing the county
commissioners will approve, approve with conditions or deny the appeal.’ As such, the
LCLUC provides that the action of the BOCC is complete on the date the hearing
concludes. After that, there is no substantive decision left to make.
[See Motion, at 12 (emphasis added)]. StreetMediaGroup’s citation to LCLUC § 22.2.2.B.5.b.
fails to acknowledge other sections in the LCLUC requiring the Board’s decision in appeals,
including sign appeals, to be in writing and such writing is considered the Board’s final decision
in the sign appeal process.
In LCLUC Section 12, titled “Common Procedures for Development Review,”5 LCLUC §
12.2.7.A. provides the Board “will conduct a public hearing and make final decisions about . . .
appeals of standards and requirements imposed by this code other than variances delegated to the
board of adjustment.” One of these appeals to be heard by the Board, and not by the County’s
board of adjustment, are appeals from the County’s sign regulations in LCLUC Section 10, which
5 “Development Review” is not defined in the LCLUC, but “development” is defined in
LCLUC § 0.1.1 as including “the construction, reconstruction, conversion, structural alteration,
relocation or enlargement of any structure” and “structure” is defined as including “Anything
constructed or erected and that requires a permanent location on or in the ground or attachment
to something having a permanent location on or in the ground.” Under these definitions, an
application for the erection of a billboard is “development” as contemplated in the LCLUC.
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sets out the standards and requirements which StreetMediaGroup is seeking to be exempt or vary
from for its proposed billboard.
The Board’s role in this sign-appeal process is further contemplated in LCLUC § 22.2.5,
which describes what the Board is required to do in considering a sign appeal stating: “To approve
an appeal from the applicable requirements in section 10 of this code the county commissioners
must consider the following review criteria and find that each criterion has been met or determined
to be inapplicable: . . . . ” (Emphases added.) This provision clearly requires the Board to make
findings about the applicable review criteria, which is what the Board did in the Findings and
Resolution dated June 28, 2020, and not at the June 1, 2020, hearing.
In describing how the Board will conduct its public hearings required under § 12.2.7.A.,
LCLUC § 12.2.7.C. states:
Public hearings will be conducted in accordance with
subsections 12.4.1, 12.4.2 and 12.4.3 of this Code. At the public hearing, the county
commissioners will consider all information presented by the applicant and the county
staff, any verbal or written testimony and the recommendation of the planning
commission or the rural land use advisory board. The county commissioners will review
the application with respect to the review criteria of this Code and all information and
testimony to decide whether to approve, approve with conditions or deny the application.
The county commissioners may announce their decision at the conclusion of the hearing.
The county commissioners' official final decision will be in the form of a written
resolution that states how the proposal meets or fails to meet the applicable review
criteria of this Code.
LCLUC § 12.2.7.C (emphases added). LCLUC 12.4.3.G. further adds, in setting out the order for
proceedings of public hearings:
Decision of board or commission. The board or commission makes its decision or
recommendation to approve, approve with conditions or deny the application. The
decision must be in writing.
LCLUC § 12.4.3.G (emphasis added).
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These LCLUC provisions eliminate any doubt the Board’s adoption of the Findings and
Resolution on July 28, 2020, was the Board’s final decision and from which the 28-day appeal
period under Rule 106(b) began to run. The City timely filed its Complaint.
Third, until the Board issued its Findings and Resolution, there was no ability for this Court
to review the basis of the Board’s quasi-judicial decision. The Colorado Supreme Court has
determined a quasi-judicial action “generally involves a determination of the rights, duties, or
obligations of specific individuals on the basis of the application of presently existing legal
standards or policy considerations to past or present facts developed at a hearing conducted for the
purpose of resolving the particular interests in question.” Cherry Hills Resort Dev. Co. v. Cherry
Hills Vill., 757 P.2d 622, 625 (Colo. 1988). Quasi-judicial decisions require the application of the
facts of a specific case to applicable criteria established by law. Jafay v. Bd. of County Comm’rs,
848 P.2d 892, 897 (Colo. 1993); Snyder v. Lakewood, 542 P.2d 371, 372 (Colo. 1975). Rule
106(a)(4) and applicable law require the Board to make adequate findings of fact and conclusions
of law to allow this Court to review its quasi-judicial decision. C.R.C.P. 106(a)(4)(IX); Widder v.
Durango Sch. Dist. No. 9-R, 85 P.3d 518, 528 (Colo. 2004); Bd. of County Comm’rs of Larimer
County v. Conder, 927 P.2d 1339, 1350 (Colo. 1996). “The standard under C.R.C.P. 106 for
reviewing a quasi-judicial decision is to ascertain whether the findings of fact are supported by
competent evidence.” Scott v. Englewood, 672 P.2d 225, 228 (Colo. App. 1983).
Here, the Board made no specific findings of fact or conclusions of law for this Court to
review on June 1, 2020. Review of the comments from the three Commissioners at the conclusion
of the hearing reveal no specific findings of fact or conclusions of law. [See R. Vol. II.A., at 69-
81]. Similarly, the Minutes of the June 1, 2020, Board meeting also reveal no findings of fact and
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conclusions of law. [See R. Vol. III.A., at 4-9]. More importantly, not only are there no findings
of fact and conclusions of law made by the Board during the June 1, 2020, hearing, but the only
comments made are individual comments by the three Commissioners. It is well-established a
board of county commissioners under Colorado law may only act collectively. See, e.g., Robbins
v. County Comm’rs of Boulder, 115 P. 526, 528 (Colo. 1911) (“To bind the county, or to make
their doings legal, they must act, not individually, or separately, but collectively as a board.”);
Nicholl v. E-470 Pub. Highway Auth., 896 P.2d 859, 866 (Colo. 1995) (“Moreover, our rules of
statutory construction require that ‘[a] grant of authority to three or more persons as a public body
confers the authority upon the majority of the number of members,’ § 2-4-110, 1B, C.R.S. (1980),
and hence a board of county commissioners must act jointly through a majority of its members
and not by individual members.”). While the Board did collectively vote to approve the appeal on
June 1, 2020, the Board never collectively made any findings of fact and conclusions of law,
written or otherwise, on June 1, 2020. The explanations of the three County Commissioners
concerning the basis of their respective votes at the conclusion of the June 1, 2020, are not and
cannot be considered findings of fact and conclusions of law by the Board as a whole. It was not
until the adoption of the Findings and Resolution on July 28, 2020, that the Board collectively
made the necessary written findings of fact and conclusions of law permitting any meaningful
review of its decision by this Court. As such, StreetMediaGroup’s argument the July 28, 2020,
Findings and Resolution were merely clerical and the substantive decision by the Board was made
on June 1, 2020, is illusory.
Under StreetMediaGroup’s approach, C.R.C.P. 106(a)(4) litigants would be required to file
their complaint with this Court within 28 days after the Board merely votes at the conclusion of its
15
public hearing and before the Board articulates the actual factual and legal basis of its decision.
Such an approach fundamentally ignores both the public need to understand and appreciate the
actual basis of the Board’s decision before deciding whether to challenge it pursuant to C.R.C.P.
106(a)(4) as well as this Court’s need to review and evaluate the actual legal and factual basis of
the Board’s decision. Any review of the June 1, 2020, hearing transcript and the June 1, 2020,
Minutes demonstrates this Court would have no basis to evaluate the Board’s grant of the appeal
based on the then-status of the record. It was not until the Board’s July 28, 2020, Findings and
Resolution that the Board’s actual basis for its decision was identified permitting review by the
public and this Court. Because this Court had no basis to review the Board’s decision until the
Findings and Resolution was issue, under the analysis of Wilson and 1405 Hotel, the Findings and
Resolution necessarily represent the completion of the quasi-judicial proceedings before the Board
thereby representing the triggering event for the 28-day time period for filing a complaint pursuant
to C.R.C.P. 106(b).
Fourth, notably, the Board has not argued the City’s Complaint was not timely filed and
that the Findings and Resolution is not the triggering event for C.R.C.P. 106(b). The Board did
not join in StreetMediaGroup’s Motion to Dismiss. [See Motion, at 1 (noting Board takes no
position respecting the Motion)]. The Board’s Answer does not make this argument and timeliness
is not one of the Board’s affirmative defenses. [See Answer, at 7]. In fact, the Board specifically
admitted in its Answer the Board’s “Findings and Resolution is a final quasi-judicial decision
subject to review under C.R.C.P. 106(a)(4).” [See Complaint, ¶ 12; Answer, ¶ 12 (emphasis
added)]. The Board recognizes its Findings and Resolution represents the final quasi-judicial step
and is consistent with the position the Board has taken in other cases before this Court. [Compare
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City of Thornton v. Board of County Commissioners of the County of Larimer, Case No.
2019CV30339, at Thornton complaint, ¶¶ 56 & 59 (describing vote denying Thornton’s
application on February 11, 2019, followed by Board issuing its findings and resolution on March
19, 2019) and Board answer, ¶¶ 56 & 59 and generally (admitting allegations and not challenging
timeliness of Thornton complaint filed on April 16, 2019), the Thornton complaint attached as
Exhibit A and Board’s answer attached as Exhibit B to this Motion; and Robert Havis and Peter
Waack v. Board of County Commissioners of Larimer County et. al., Case No. 2019CV30123,
at Havis first amended complaint, ¶ 6 (describing findings and resolution of the Board as final
action pursuant to C.R.C.P. 106(b) and filing complaint within 28 days thereafter) at Board answer,
¶ 6 (admitting same), Havis first amended complaint attached as Exhibit C and Board answer
attached as Exhibit D]. Indeed, this Court has itself recognized the difference between when the
Board holds its public hearings and votes on matters before it and when it later issues its findings
and resolution and how the latter is the triggering event for review under C.R.C.P. 106(b). [See
Order on Rule 106 Petition, at 1-2, PKR Farms, LLC v. Board of County Commissioners of the
County of Larimer, et. al., Case No. 15 CV 30044, attached as Exhibit E].6
Based on the Board’s longstanding recognition that its findings and resolution represent
the final step in the quasi-judicial process, the Board would be judicially estopped from arguing
otherwise in this action. Arko v. People, 183 P.3d 555, 560 (Colo. 2008); Estate of Burford v.
Burford, 935 P.2d 943, 948 (Colo. 1997). Effectively, the Board’s position in this case and the
6 Again, this Court can take judicial notice of these records in other cases before this Court
without converting this Motion to a motion for summary judgment. Doyle, 2015 CO 10, ¶ 15;
Hatch, 590 P.2d at 976; Walker, 148 P.3d at 397-98; Tal, 453 F.3d at 1264 n. 24.
17
prior cases cited above demonstrates the Board believes its findings and resolution on these types
of matters represent the final step in the quasi-judicial process. Since this represents an
interpretation by the Board concerning its own quasi-judicial process and its LCLUC, this Court
should defer to the Board’s interpretation. Colo. State Bd. of Pharm. v. Priem, 2012 COA 5, ¶
16; Colo. Citizens for Ethics in Gov’t v. Comm. for the Am. Dream, 187 P.3d 1207, 1214 (Colo.
App. 2008). This Court should follow the Board’s interpretation and StreetMediaGroup is bound
by how the Board conducts itself. No other result makes any sense and is consistent with the
Board’s prior actions, Colorado law as found in Wilson and 1405 Hotel and LCLUC §§ 12.2.7.A.,
12.2.7.C. and 12.4.3.G.
None of the cases cited by StreetMediaGroup are to the contrary. The applicable precedent
for this Court is Wilson and 1405 Hotel. StreetMediaGroup’s assertion the Board’s Findings and
Resolution is simply an unrequired administrative step is belied by applicable provisions of the
LCLUC and the actual record before this Court as well as the purposes of judicial review under
C.R.C.P. 106(a)(4). Importantly, the Board does not share StreetMediaGroup’s perspective that
its Findings and Resolution are unnecessary. Fundamentally, StreetMediaGroup ignores
applicable provisions of the LCLUC and the reality the written basis of the Board’s decision was
necessary for any meaningful judicial review to occur. Because the required findings of fact and
conclusions of law were never articulated by the Board until the July 28, 2020, the Findings and
Resolution, it make no sense whatsoever for this Court to accept StreetMediaGroup’s argument
based on the mistaken premise the City could have filed its Complaint within 28 days of the hearing
of June 1, 2020, and this Court would have been able to review the Board’s decision in any
meaningful substantive manner at all.
18
III. STREETMEDIAGROUP’S PURPORTED CONSTITUTIONAL RIGHTS PROVIDE
NO BASIS TO DISMISS THE CITY’S CLAIM SEEKING JUDICIAL REVIEW
StreetMediaGroup’s final argument histrionically suggests the City’s C.R.C.P. 106(a)(4)
Complaint seeking judicial review of the Board’s approval of its appeal violates
StreetMediaGroup’s First Amendment rights. First, StreetMediaGroup does not argue, let alone
provide this Court with any supporting legal authority, that litigation brought under Rule 106(a)(4)
is a “prior restraint” and “content-based censorship” in violation of the First Amendment.
StreetMediaGroup does cite Mahaney v. City of Englewood, 226 P.3d 1214 (Colo. App.
2009), but reliance on Mahaney is misplaced because it addresses and decides whether the City
of Englewood’s special review process for sign permits was a prior restraint on protected speech
in violation of the First Amendment because Englewood’s City Code did not require its city
manager to decide within a specified period to time whether to issue the permit. In holding
Englewood’s code on this procedural point to be unconstitutional, the Court of Appeals never
addressed whether C.R.C.P. 106(a)(4) provides the needed “expeditious judicial review.” This
issue has, however, been directly addressed by the United States Supreme Court.
In City of Littleton v. Z.J. Gifts D-4, LLC, 541 U.S. 774 (2004), the Supreme Court
considered whether Colorado’s judicial review under C.R.C.P. 106(a)(4) provides the required
prompt judicial review if a First Amendment related permit is denied by a local government. In
holding that it does, the Supreme Court stated:
In our view, Colorado’s ordinary judicial review procedures suffice as long as the courts
remain sensitive to the need to prevent First Amendment harms and administer those
procedures accordingly. And whether the courts do so is a matter normally fit for case-by-
case determination rather than a facial challenge.
. . . .
19
Colorado’s rules provide for a flexible system of review in which judges can reach a
decision promptly in the ordinary case, while using their judicial power to prevent
significant harm to First Amendment interests where circumstances require. Of course,
those denied licenses in the future remain free to raise special problems of undue delay in
individual cases as [Littleton’s] ordinance is applied.
Id. at 781-84. It is also significant in both City of Littleton and Mahaney the issue was whether a
local government’s regulatory process for issuing First Amendment related permit was an
unconstitutional prior restraint of protected speech and not whether a different local government,
acting in its capacity as a property owner and not in its government regulatory capacity, can
petition the courts to protect its own property rights. StreetMediaGroup cites no legal authority
that such a local government’s actions to seek judicial relief constitutes a governmental action
impinging upon First Amendment rights.
In fact, the United States Court of Appeals for the Tenth Circuit recently noted under the
Petition Clause of the First Amendment, local governments have the same right as private citizens
and entities to petition the courts for the redress of grievances. CSMN Investments, LLC v.
Cordillera Metropolitan District, 956 F.3d 1276, 1282 n. 8 (10th Cir. 2020) (“Because the First
Amendment applies to state and local governments through the Fourteenth Amendment, the
petition clause applies fully to municipal activities.” (Citations and internal quotation marks
omitted.)
Accordingly, the City has the right to file its Complaint seeking review of the Board’s
decision. Its exercising its prerogative under Colorado law is not and cannot be in and of itself a
violation of StreetMediaGroup’s constitutional rights. Otherwise, no litigant could challenge any
allegedly First Amendment protected interest through any type of litigation. The vast number of
20
First Amendment related cases litigated every day throughout the United States demonstrates the
fundamental fallacy of StreetMediaGroup’s argument.
Finally, to the extent there is any merit to StreetMediaGroup’s First Amendment analysis,
which the City does not concede, this Court can address any applicable First Amendment issues
as part of its review of the merits of the Board’s decision under C.R.C.P. 106(a)(4). Compare Tri-
State Generation & Transmission Co. v. Thornton, 647 P.2d 670, 676 n. 7 (Colo. 1982)
(recognizing under some circumstances a constitutional claim may be raised as part of a C.R.C.P.
106(a)(4) proceeding); Nuttall v. Leffingwell, 563 P.2d 356, 358 (Colo. 1977) (addressing
constitutional equal protection argument on appeal of a C.R.C.P. 106(a)(4) decision). Here, any
validity to StreetMediaGroup’s constitutional argument can await the parties’ briefing on the
merits and is not appropriate considered by this Court in reviewing StreetMediaGroup’s Motion
to Dismiss.
CONCLUSION
In conclusion, for all the foregoing reasons, Plaintiff City of Fort Collins respectfully
requests this Court deny Defendant StreetMediaGroup, LLC’s Motion to Dismiss Plaintiff’s
Complaint in its entirety, award the City its attorney’s fees and costs incurred in responding to the
Motion, and for all other and further relief as this Court deems just and appropriate.
21
Dated this 23rd day of October, 2020.
Respectfully submitted,
/s/ Andrew D. Ringel________________
Andrew D. Ringel #24762
Hall & Evans, L.L.C.
1001 17th Street, Suite 300
Denver, CO 80202
303-628-3300
Fax: 303-628-3368
ringela@hallevans.com
and
John R. Duval #10185
Deputy City Attorney
Claire Havelda #36831
Assistant City Attorney
City Attorney’s Office
300 Laporte Avenue
P.O. Box 500
Fort Collins, Colorado 80522
970-221-6652
Fax: 970-221-6327
jduval@fcgov.com
chavelda@fcgov.com
ATTORNEYS FOR PLAINTIFF
THE CITY OF FORT COLLINS
COLORADO
22
CERTIFICATE OF SERVICE
I hereby certify that on this 23rd day of October, 2020, a true and correct copy of the
foregoing was filed with the Court and served via Colorado Courts E-Filing System to the
following email addresses:
Todd G. Messenger, Esq.
tmessenger@fwlaw.com
Andrew J. Helm, Esq.
ahelm@fwlaw.com
Jeannine S. Haag, Esq.
haagjs@co.larimer.co.us
William G. Ressue, Esq.
wressue@larimer.org
Frank N. Haug, Esq.
haugfn@co.larimer.co.us
/s/ Nicole Marion .
Nicole Marion
of HALL & EVANS, L.L.C.,