HomeMy WebLinkAbout2021CA833 - City Of Fort Collins V. Board Of County Commissioners Of Larimer County, Et Al - 012 - Larimer County's Answer BriefCOLORADO COURT OF APPEALS
Ralph L. Carr Judicial Center
2 East 14th Avenue
Denver, Colorado 80203
COURT USE ONLY
Case No.: 2021CA833
APPEAL FROM
County of Larimer Case No. 2020CV30580,
Division 4B The Honorable Daniel McDonald
PLAINTIFF/APPELLANT:
THE CITY OF FORT COLLINS, COLORADO, a
municipal corporation,
v.
DEFENDANTS/APPELLEES:
BOARD OF COUNTY COMMISSIONERS OF
LARIMER COUNTY, COLORADO; and
STREETMEDIAGROUP, LLC
William G. Ressue, Reg. No. 34110
David P. Ayraud, Reg. No. 28530
Frank N. Haug, Reg. No. 41427
Larimer County Attorney’s Office
224 Canyon Ave., Suite 200
Post Office Box 1606
Fort Collins, Colorado 80522
Phone: (970) 498-7450 Fax: (970) 498-7430
wressue@larimer.org
dayraud@larimer.org
fhaug@larimer.org
ANSWER BRIEF OF DEFENDANT-APPELLEE BOARD OF COUNTY
COMMISSIONERS OF LARIMER COUNTY
DATE FILED: October 15, 2021 7:08 PM
FILING ID: 188A69A2AFE22
CASE NUMBER: 2021CA833
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Certificate of Compliance
I certify that this ANSWER BRIEF complies with the requirements of
Colorado Appellate Rules (C.A.R.) 28 and 32, including:
Word Limits: My brief has 8,131 which is not more than the 9,500-word
limit.
Included Sections: In the arguments section, before arguing each issue on
appeal, I have the following separately titled sub-sections:
The Standard of Review: I discuss which Standard of Review should be
used to evaluate the issue.
Preservation: I discuss if the Appellee agrees with the Appellant statement
on preservation of the issue for appeal, and if not, provide an explanation.
I understand that my brief may be rejected if I fail to comply with these rules.
s/Frank N. Haug
Frank N. Haug, Reg. No. 41427
3
TABLE OF CONTENTS
I. PREFACE…………………………………………………..……………….5
II. ISSUE ON APPEAL………………………………………………...………5
III. STATEMENT OF THE CASE AND FACTS ………………………..……..5
a. Procedural History……………………………………………………5
b. Relevant Facts…………………………………………………….…..6
IV. APPLICABLE PROVISIONS OF THE LAND USE CODE …………….....9
V. SUMMARY OF ARGUMENT……………………………………………11
VI. ARGUMENT…………………………………………………………...… 15
ISSUE: Did the Board appropriately apply and interpret the review
criteria and does competent evidence exist in the record for each criterion………15
A. Criterion One – Purpose and Intent of LUC……………….....22
B. Criterion Two – Unique Hardship………………………..…..30
C. Criterion Three – Economic Advantage………………..…….35
VII. CONCLUSION………………………………………………………...…..38
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TABLE OF AUTHORITIES
Cases
Abbott v. Bd. of County Comm’rs, 895 P.2d 1165………………………………..18
Bauer v. City of Wheat Ridge, 182 Colo. 324, 513 P.2d 203 (1973)………….….17
Bentley v. Valco, Inc., 741 P.2d 1266 (Colo. App. 1987)……………………..….17
Bristol v. County Court, 143 Colo. 306, 352 P.2d 785 (1960)……………………17
City of Aspen v. Marshall, 912 P.2d 56, En Banc, (Colo. 1996)………………….17
City of Colorado Springs v. Givan, 897 P.2d 753, 756 (Colo. 1995)……………..16
Doran v. State Bd. of Medical Exmrs., 78 Colo.153, 240 P. 335 (Colo. 1925)…...16
King's Mill Homeowners Ass'n v. City of Westminster, 192 Colo. 305,
(Colo. 1976)………………………………………………………….…….17
Langer v. Board of County Commissioners of Larimer County,
462 P.3d 59 (Colo. 2020)………………………………………18, 19, 20, 21
Lieb v. Trimble, 183 P.3d 702 (Colo. App. 2008)……………………………19, 20
Platte River Envtl. Conservation Organiz. v. Nat’l Hog Farms,
804 P.2d 290 (Colo. App. 1990)……………….………………………18, 20
Ross v. Fire & Police Pension Ass’n., 713 P.2d 1304, 1305 (Colo. 1986)
557 P.2d 1186 (1976)………………………………………………………16
Sierra Club v. Billingsley, 166 P.3d 309 (Colo. App. 2007)………………….18, 20
State Bd. Of Medical Exmrs. v. Noble, 65 Colo. 410, 177 P. 141 (1918)………...16
State Civil Serv. Comm’n v. Hazlett, 119 Colo. 173, 201 P.2d 616 (1948)…...17, 23
Stor-N-Lock Partners #15, LLC v. City of Thornton, 488 P.3d 352
(Colo. App. 2018)…………………………………………………………..18
Other authority
C.R.C.P. 106………………………………………………………………….passim
5
I. PREFACE
Plaintiff/Appellant City of Fort Collins is referred to as “The City.”
Defendant/Appellee the Board of County Commissioners of Larimer County is
referred to as the “Board.” Defendant/Appellee StreetMediaGroup, LLC is
referred to as “StreetMedia.” The Board follows The City’s citation method by
referring to the record and Court File as CF followed by the bate-stamped page
number(s).
II. ISSUE ON APPEAL
Whether the Board abused its discretion or exceeded its jurisdiction in
granting StreetMedia’s sign appeal by either 1) misinterpreting the Larimer County
Land Use Code (LUC), 2) misapplying the LUC, or 3) lacking competent evidence
in the record to support the decision.
III. STATEMENT OF THE CASE AND FACTS
a. Procedural History
This matter arises from the Board’s approval of an application by
StreetMedia to construct an electronic advertising sign (“sign”) that deviates from
various standards in the LUC. The sign is located at the intersection of I-25 and
Harmony Road in unincorporated Larimer County on land owned by the State
Land Board and leased to StreetMedia. The subject property is adjacent to the
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southeastern municipal border of the City . [CF, 164; see CF, 178 for aerial image].
The City did not apply for a stay of construction and the sign in this matter has
already been constructed and is operational. [CF, 639, 657, 715, 753, 815].
StreetMedia’s application requested approval of its sign along with
deviations from specific standards in the LUC. The Board heard the application at
a public quasi-judicial hearing on June 2, 2020, where StreetMedia and County
Staff provided presentations to the Board. [CF, 351-418]. Following these
presentations, the Board opened the hearing for public comment but no member of
the public nor any representative of the City appeared to comment on the
application. [CF, 418-419]. The Board next deliberated on the application, made
oral findings, and approved StreetMedia’s application by a vote of 3-0. [CF, 419-
431]. A written Findings and Resolution was reviewed and approved by the Board
on July 28, 2020. [CF, 465-469]. Thereafter, the City sought judicial review of
the Board’s decision pursuant to C.R.C.P. 106(a)(4), and the District Court
affirmed the Board’s decision. [CF, 885-896]. The City now seeks de novo
review by the Court of Appeals.
b. Relevant Facts
The facts section in the City’s Opening Brief is a mixture of facts, citations
to law, and argument. The Board addresses legal authority and argument in the
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applicable sections of this brief rather than in this fact section. With respect to
facts, the Board generally agrees with the City’s factual description of the course
of proceedings, however, disputes some of the characterizations by the City and
supplements the facts below.
The City did not attend the quasi-judicial hearing on StreetMedia’s sign
application held on June 2, 2021, and therefore did not present public testimony
with respect to the application prior to its approval. [CF, 418-419]. Instead, on
July 28, 2020, two months after the Board’s hearing and vote, a City representative
presented public comment as the Board considered adoption of the written
Findings and Resolution confirming its prior vote approving the sign. [CF, 434-
437]. The City representative was Paul Sizemore, Interim Director of Community
Development and Neighborhood Services of Fort Collins. Id. Mr. Sizemore’s
comments to the Board are in the record at CF, 434-437 and were, in summary,
that the City does not like the sign because it affects the “community’s image and
character” and “how the city is perceived at its entryways”; and that the sign
“conflicts with the City’s adopted policies and standards” and will have “visual
and ecological impacts” on adjacent natural areas. Id. Mr. Sizemore then asked
the Board to reconsider its decision approving the sign. Id. Mr. Sizemore did not
comment on the review criteria in the LUC, nor allege any procedural deficiencies
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related to the Board’s decision. Id. When the Board informed Mr. Sizemore that
the sign had already been heard and approved, he responded by saying “I was here
at the request of our City Leadership to express the City’s Concerns.” [CF, 437].
The Board proceeded to adopt the Findings and Resolution on July 28, 2020,
confirming its prior vote on June 2, 2020. [CF, 465-469].
The Board agrees that the sign is adjacent to the municipal boundaries of the
City, within the Growth Management Area, and adjacent to property owned by the
City. However, the sign is in unincorporated Larimer County, and in a non-
residential commercial zoning district. [CF, 165]. While the sign is located near
one of the City’s open spaces, it is also located at the intersection of a major
interstate and major local roadway, I-25 and Harmony Road respectively. [CF,
164; see CF, 178 for aerial image]. Directly across I-25 from the sign are major
commercial developments, including a Wal-Mart and a Costco. [CF, 73, 368, 394,
395, 416].
As referenced by the City and in the record on review, the location of the
sign is in a Growth Management Area created by an Intergovernmental Agreement
(“IGA”) between the City and Board. [CF, 21]. The terms of the IGA provide the
City with an opportunity to make recommendations on proposed development
within the Growth Management Area, however, “the final authority regarding
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approval or disapproval of development proposals shall rest with the Boar d of
County Commissioners.” [CF, 22, 367, 674].
The Court File otherwise provides an accurate description of the facts and
procedures in the case.
IV. APPLICABLE PROVISIONS OF THE LAND USE CODE
The development standards for signs in Larimer County are in section 10.0
of the LUC. [CF, 37-50].1 Applicants can seek a waiver/deviation from these
standards pursuant to section 22 .2.5 of the LUC (such deviation requests are
referred to in the LUC as “appeals” of the standard or requirement). [CF, 65].
1. Section 10: Sign Standards and Requirements [CF, 37-50].
Unless a deviation is approved by the Board, the relevant standards and regulations
for signs in nonresidential zoning districts are in Section 10 of the LUC as follows:
a. Maximum sign-area is 90 square feet per side with a maximum
height of 18 feet above grade. LUC §10.11.B.2. [CF, 44].
b. Setback for signs is at least 36 feet from right-of-way. LUC
§10.11.B.2; §10.11.B.3. [CF, 44].
1 The District Court was provided a link to the LUC along with the remainder of the
record conventionally submitted. [CF, 471, 631]. The relevant sections of the
LUC are also in the record as follows: Section 10.0, Sign Standards [CF, 37-50];
Section 22.0, Appeal of Standards and Requirements [CF, 62-67]. The Board’s
citations to the LUC include the Section and location in the Record.
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c. Flashing, rotating, animated or otherwise moving features are
not permitted, and message signs cannot change more frequently than once
every minute. LUC §10.5.B. [CF, 38].
d. Off-premises signs2 are not permitted (with certain exceptions
that are not relevant in this action). LUC §10.5.E. [CF, 39].
2. Section 22.2.5: Appeal of Sign Standards and Requirements. The
LUC allows applicants to “appeal” development standards and requirements for
signs which, if approved by the Board, allows for the waiver of and/or deviation
from such standards and requirements. LUC §22.2.5 [CF, 65]. To approve an
appeal the Board must consider the following express review criteria and find that
each has been met or is inapplicable [CF, 65]:
a. Approval of the appeal is consistent with the purpose and intent
of Section 10 of the LUC;
b. There are extraordinary or exceptional conditions on the site
which would result in a peculiar or undue hardship on the property owner if
Section 10 of the LUC is strictly enforced;
2 Off-premises signs are defined as signs that advertise for businesses, events, and
the like that are not located on the same property as the sign. LUC §10.15 [CF,
48].
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c. Approval of the appeal would not result in an economic or
marketing advantage over other businesses which have signs which comply
with Section 10 of the LUC.
3. Purpose and intent of sign code. Review criterion “a” above
requires the Board to evaluate appeals in the context of the purpose and intent of
Section 10 of the LUC. The express purpose of Section 10 is as follows:
a. “The purpose of this section is to protect the health, safety and
welfare of the public; to provide the public and property owners with an
opportunity for safe and effective identification of uses and locations within
the county; and to avoid clutter and protect and maintain the visual
appearance and property values of the agricultural, residential, business,
commercial and industrial areas of the county.” LUC §10.1. [CF, 37].
V. SUMMARY OF ARGUMENT
On the surface the City identifies three main issues for review: 1) whether
the Board misinterpreted the LUC, 2) whether the Board misapplied the LUC, and
3) whether there is competent evidence in the record to support the Board’s
decision. However, the substance of the City’s arguments seeks to reweigh the
evidence; ignore the Board’s authority to approve appeals; require the Board to
12
adopt staff recommendations; and find error when the Board does not agree with
the recommendation of the City.
Reviewing Court Does Not Reweigh the Evidence. Although the City
states there was a misapplication and misinterpretation of the LUC, the substance
of its argument is really a challenge to the weight of the evidence . In a C.R.C.P.
106 action the reviewing court does not reweigh the evidence nor substitute its
judgment for that of the quasi-judicial body. The Board does not discount that the
City had reasons for objecting to the sign, nor that County staff recommended
denial of StreetMedia’s application. However, the City ignores the conflicting
evidence presented to the Board by StreetMedia. The City does not challenge the
competency of evidence presented by StreetMedia, but rather focuses on the
evidence that supports the outcome it seeks (denial of the application). For
example, in evaluating the Board’s Findings and Resolution, the City only includes
selective references and does not address the vast majority of the Board’s findings.
Also, in several places within the Opening Brief the City prefaces arguments with
“[n]owhere in the record…” when in fact, there are various places in record
directly on point. The City also omits mention of the deliberation of the Board, or
the voluminous nature of the record that includes a variety of technical
considerations that competently support the Board’s findings. The standard of
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review in this C.R.C.P. 106 action is to review the quasi-judicial decision of the
Board and determine whether there is any competent evidence in the record to
support the decision. Even a cursory review of the record shows substantial and
competent evidentiary support for the Board’s decision.
The LUC Allows for Variance from Sign Standards. The specific sign
development standards that StreetMedia appealed are documented in the record
and outlined in the Opening Brief and deal with setbacks, height, square footage,
billboards and off premise signs, and dwell time of electronic messages. The City
repeatedly argues that the Board may not grant deviations from specific provisions
of the LUC, such as the restrictions for off-premise signs and dwell times, because
to do so would be against the “purpose and intent” of the code. However, as noted
by the District Court in its order denying the City’s 106 appeal, “[a]lthough the
LUC prohibits off-premise signs, it also allows deviations from Section 10 by the
procedure followed in Section 22. Accordingly, it is the intent of the LUC to allow
deviations from the sign regulations in section 10.” [CF, 891]. The City
alternatively argues that the Board should not have relied on or cited to Section
10.1 of the LUC (titled “Purpose”) to analyze the purpose of the LUC sign
regulations. Instead, the City argues, the Board should only consider the limiting
technical requirements related to height, size, etc. Again, this argument ignores the
14
existence of the LUC provisions that expressly provide for appeal of sign
standards. To be clear, the appeal regulation in Section 22.2.5 of the LUC is not a
generic right to appeal and is specifically applicable to the sign standards in
Section 10 of the LUC.
The Board, Not County Staff, is the Decision Maker. A significant
portion of the City’s Opening Brief is the reproduction of information and opinions
presented to the Board by Larimer County staff, along with the implication that the
Board’s failure to adopt staff recommendations is evidence of error. As a local
government itself, the City should appreciate that the Board, not staff, has final
decision-making authority over StreetMedia’s application. While the City admits
that “the Board is allowed to review and disagree with County Staff,” the
substance of its arguments fault the Board for doing so. [Op. Br. p. 36]. The
City’s attempt to show error because of disagreement between County staff and the
Board is unavailing.
The Board, Not the City, is the Decision Maker. The City also implies
that the cooperative growth management IGA between the Board and the City
demands the Board reject StreetMedia’s application. This of course is not
accurate, and the record shows that the IGA provides opportunity for evaluation
and input but does not transfer final decision-making authority across jurisdictional
15
lines. The Board considers and values input from the City on development within
the growth management area but is bound to judge applications on the review
criteria in the LUC and reach its own findings.
The District Court’s Decision is not on Review. On one hand the City
acknowledges the Court’s review is de novo, while on the other it spends
significant time arguing about the findings of the District Court. In this action the
Court’s charge is to review the decision of the Board, not the District Court’s
conclusions about such decision. The Board’s arguments are focused on the record
and correct standard of review, which is whether the Board’s decision is contrary
to law or unsupported by any competent evidence. The applicable sections of the
LUC are clear and were applied by the Board as written, and the record has
substantial competent support for the Board’s decision.
VI. ARGUMENT
ISSUE: Did the Board appropriately apply and interpret the review
criteria and does competent evidence exist in the record for each criterion.
a. Preservation for Appeal and Standard of Review.
Preservation for Appeal. The Board does not dispute that these issues
were preserved for appeal.
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Standard of Review:
The Court’s role in this C.R.C.P. 106 action is to review the quasi -judicial decision
of the Board (not the District Court) and determine whether there is any competent
evidence in the record to support the decision. City of Colorado Springs v. Givan, 897
P.2d 753, 756 (Colo. 1995). A court’s review of a quasi -judicial action under C.R.C.P.
106(a)(4) “shall be limited to a determination of whether the body or officer has exceeded
its jurisdiction or abused its discretion, based on the evidence in the record before the
defendant body or officer.” As with any quasi-judicial action, the Board has broad
discretion in evaluating the information presented at the public hearin g and determining
what weight to afford that information. The object of a C.R.C.P. 106 proceeding is not to
settle or determine disputed facts, but to investigate and correct errors of law of a
jurisdictional nature and abuses of discretion. Doran v. State Bd. of Medical Exmrs., 78
Colo.153, 240 P. 335, 337 (1925). The merits of the case are not involved. State Bd. Of
Medical Exmrs. v. Noble, 65 Colo. 410, 177 P. 141 (1918).
An abuse of discretion occurs only when there is no competent evidence to
support the decision. Ross v. Fire & Police Pension Ass’n., 713 P.2d 1304, 1305
(Colo. 1986). “No competent evidence” means that the ultimate decision of the
lower tribunal is so devoid of evidentiary support that it can only be explained as
an arbitrary and capricious exercise of authority. Bentley v. Valco, Inc., 741 P.2d
17
1266, 1267 (Colo. App. 1987). When reviewing a decision pursuant to Rule 106,
the Court must examine the entire record and uphold the decision unless no
competent evidence supports it. City of Aspen v. Marshall, 912 P.2d 56, En Banc,
(Colo. 1996) citing King's Mill Homeowners Ass'n v. City of Westminster, 192
Colo. 305, 311, 557 P.2d 1186, 1190 (Colo. 1976). The proper function of a
district court under Rule 106 is to affirm a lower tribunal where there is any
competent evidence to support the tribunal’s decision. Bauer v. City of Wheat
Ridge, 182 Colo. 324, 513 P.2d 203, 204 (Colo. 1973). The reviewing court
cannot consider whether the lower agency’s findings are right or wrong, substitute
its judgment for that of the agency, or interfere in any manner with the agency’s
judgment if there is any competent evidence to support those findings. State Civil
Serv. Comm’n v. Hazlett, 119 Colo. 173, 201 P.2d 616 (1948). A court cannot
weigh anew the credibility of witnesses. A mere disagreement with a ruling is not
a sufficient showing of abuse of discretion. Bristol v. County Court, 143 Colo.
306, 352 P.2d 785, 786 (Colo. 1960).
Actions under C.R.C.P. 106(a)(4) provide for a deferential review that gives
credence to an agency’s own interpretations and application of its policies and
regulations. Langer v. Board of County Commissioners of Larimer County, 462
P.3d 59, 62 (Colo. 2020); citing Stor-N-Lock Partners #15, LLC v. City of
18
Thornton, 488 P.3d 352 (Colo. App. 2018) (“In conducting our review under
C.R.C.P. 106(a)(4), we apply a deferential standard, and we may not disturb the
governmental body’s decision absent a clear abuse of discretion.”). “In
determining whether the administrative agency abused its discretion, the reviewing
court may consider whether the agency misconstrued or misapplied the law. If
there is a reasonable basis for the agency’s application of the law, the decision may
not be set aside on review.” Platte River Envtl. Conservation Organiz. v. Nat’l
Hog Farms, 804 P.2d 290, 292 (Colo. App. 1990) (citations omitted).
Furthermore, the construction of ordinances by administrative officials charged
with their enforcement “should be given deference by the courts.” Abbott v. Bd. of
County Comm’rs, 895 P.2d 1165, 1167 (Colo. App. 1995). When a regulation is
clear and unambiguous, it should be construed as written so as to carry out the
intent of the legislative body; however, “[i]f the language of an administrative rule
is ambiguous or unclear, [the court] give[s] great deference to an agency’s
interpretation of a rule it is charged with enforcing, and its interpretation will be
accepted if it has a reasonable basis in law and is warranted by the record.” Sierra
Club v. Billingsley, 166 P.3d 309, 312 (Colo. App. 2007). “Administrative
interpretations are most helpful when the subject involved calls for the exercise of
technical expertise or when the statutory language is susceptible of more than one
19
reasonable interpretation.” Id. “Generally, a reviewing court should defer to the
construction of a statute by the administrative officials charged with its
enforcement. If there is a reasonable basis for an administrative board’s
interpretation of the law, [the reviewing court] may not set aside the board’s
decision.” Lieb v. Trimble, 183 P.3d 702, 704 (Colo. App. 2008); see also Langer
v. Board of County Commissioners of Larimer County, 462 P.3d 59, 64 (Colo.
2020) (…[I]ndeed we might have reached a different conclusion than the BOCC
were we deciding this case in the first inst ance, under our applicable standard of
review, we do not do so.”).
The City argues that the Board did not appropriately apply or interpret the
three review criteria found in the LUC, section 22.2.5. [Op. Br. p. 19]. The City
prefaces its argument with the statement that “The District Court failed to address
the validity of the Board’s interpretation of the LUC.” [Op. Br. p. 18]. This
argument is flawed for two primary reasons. First, as shown below, the District
Court did address the Board’s interpretation of the LUC. Second, because this Court
conducts a de novo review, the standard of review is not whether the District Court
should have done something differently, but whether “there is a reasonable basis for
the agency’s application of the law” and a “reasonable basis for an administrative
board’s interpretation of the law.” See Platte River and Lieb.
20
The City further argues that the District Court “inappropriately deferred to
the Board’s determination concerning the application of the criteria.” Id. This
reasoning misconstrues the law. The applicable cases clearly indicate that the
District Court should defer to the determinations of the Board. See Platte River,
Abbot, Sierra Club, and Lieb. In fact, it is only when there is no reasonable basis
for the Board’s interpretation that it should be overruled by the Court. Id. Further,
as noted repeatedly herein, the Court reviews this matter de novo and is not
evaluating the District Court’s conclusions.
The City also cites to Langer v. Bd. of Comm’rs, 469 P.3d 59 (Colo. App.
2020) for the proposition that there is reversible error because the District Court
did not sufficiently analyze whether the Board correctly interpreted the LUC. This
again misconstrues the appropriate standard of review. The City’s argument is
apparently that interpretation and application must be viewed as two separate
analyses. Even if this is the case, that application and interpretation still is only
relevant as related to the review of the criteria in question by the Board. It does
not, as the City implies, create a new standard separate from those listed above.
The Langer case, which came out of Larimer County, dealt with overlapping
definitions and use classifications. Such a situation is not present in this case,
where all parties are, and have always been, in agreement as to the applicable
21
provisions of the LUC. The Langer court found in favor of the Board and
reiterated the doctrine that a local government abuses its discretion “only when it
applies an erroneous legal standard.” Id. at 62. The City does not argue that an
erroneous legal standard was applied. Instead, the City argues that the Board’s
interpretation and application was somehow insufficient.
The City argues that the Board “failed to provide any alternative analysis,
rationale, or legitimate grounds supported by competent evidence in the Record
contradicting the comprehensive analysis, findings, and rationale of County Staff.”
[Op. Br. p. 19]. This sentence demonstrates the inherent irony of the City’s
argument. The City begins by pointing out the “comprehensive findings and
rationale” of the Staff. All of those findings and rationales are part of the record
and apparently contain sufficiently competent evidence and analysis to satisfy the
City. Noticeably, those same findings and rationales are in line with the City’s
desired outcome. The City continues to the next statement in its argument that the
Board failed to provide an alternative analysis, rationale, or legitimate grounds for
its decision. This despite clear and explicit back and forth discussion between the
Board, the Staff, and the Applicant about the issues, and the Findings and
Resolution which expressly outlines each review criterion and the evidence on
which the Board based its decision. The argument concludes by stating that the
22
Board failed to overcome Staff’s recommendation, as if the Staff’s decision must
be afforded great deference by the Board. There of course is no legal citation to
this point because it is not supported by law. Further, the City admits that the
Board is not Bound by Staff’s decision and is the higher authority.
The record shows detailed discussion and deliberation by the Board,
including discussions with Staff about the review criteria and the merits of
StreetMedia’s application. [CF, 364-371; CF, 419-431]. The Board did not reach
its decision out of thin air or for improper reasons as the City would have the Court
believe; the record establishes the Board judged the application against the review
criteria, evaluated conflicting evidence, and reached its own conclusions. [CF,
419-431]. That was the charge of the Board, not an indication of impropriety or
error.
Turning to the three review criteria, the Board addresses each in turn:
A. CRITERION ONE – PURPOSE AND INTENT OF LUC
Commissioner Johnson, in the beginning of Board deliberations on this
matter, stated: “My job is to interpret the Application in light of the Code in front
of us.” [CF, 428]. He continued and specifically address each review criterion one
by one, weighing competing arguments for and against each. [CF, 428-431]. The
Board’s deliberations included a wide range of factors, including the history of the
23
sign code, its application over time, and the express purposes of the sign code as
stated in the LUC. The Board questioned County staff and StreetMedia about the
application, reached distinctions within the evidence presented, addressed
alternative interpretations, and ultimately approved the sign. The record shows
that the Board was thoughtful and explicit when reviewing and interpreting the
LUC. The City dismisses this evidence because it does not further the outcome it
desires and because it believes the weight of evidence indicates a different result.
However, as noted by the legal authority above, C.R.C.P. 106 is not designed for a
re-weighing of evidence or substitution of the Court’s judgment for that of the
Board. See Hazlett.
Further, the City entirely disregards the Board’s findings related to the
purpose of the sign regulations in Section 10 of the LUC. It is not difficult to
determine this purpose because it is expressly stated in the LUC as follows:
“provide the public and property owners with an opportunity for safe and effective
identification of uses and locations within the county; and to avoid clutter and
protect and maintain the visual appearance and property values of the
agricultural, residential, business, commercial and industrial areas of the county.”
LUC Section 10.1 (emphasis added) [CF, 37]. In its Findings and Resolution, the
Board concluded “[t]he appeal is consistent with the purpose and standards
24
because it will remove clutter and protects and maintains the visual appearance and
property values of the area.” [CF, 80]. The Board continued that “the appeal is
consistent with implementation of the sign code because it removes clutter…it will
beautify roadways and give small businesses an opportunity to communicate with
customers. Further, the SITELINE technology employed by the sign allows for
directional distribution of light so as to minimize interference and mitigate the
impacts of a lighted sign.” Id. The City also argues that the Board should not be
allowed to consider the removal of signs as proposed by StreetMedia’s application,
but this ignores an express intent of the sign regulations to “avoid clutter.” LUC
Section 10.1 [CF 37]. During Board deliberation Commissioner Johnson noted
“the removal of other signs that the Land Use Code does speak to clutter and visual
appearance.” [CF, 428]
Looking to the record as a whole, there is substantial support for the Board’s
finding that StreetMedia’s application is consistent with the purposes of the sign
regulations; and that the Board was thoughtful and thorough in its evaluation. The
following are examples on these points:
• StreetMedia submitted a 50-page brief to the Board with substantial
evidence and argument that supports the Board’s findings. [CF, 172-
326].
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• Commissioner Donnelly detailed his consideration of the evidence,
noting that County staff provided “a very balanced presentation” that
showed “a lot of distinctions about this particular site.” [CF, 419].
He continued by stating “It’s very unusual for me to vote against the
Staff’s recommendations on Land Use Hearing Items…Sign Code is
one where I’ve differed.” [CF, 420-421]. In explaining his
conclusions, Commissioner Donnelly said “every one of those (sign
code) Applications that’s come before us for a variance request has
been very different, but similar in one regard…they are typically on a
much higher speed and higher traffic roadways than the standard
sign…this proposal will actually remove eight sign faces…and so, as
far as actually implementing the Land Use Code as we, as
Commissioners, as our Community has described it to us, this actually
does more for that proposal, and to move that idea forward than
probably anything else we’ve done in the last decade.” [CF, 421-
422]. Commissioner Donnelly further explains how StreetMedia’s
application will provide for “beautifying Larimer County roadways,”
provide space for small businesses to advertise, especially during a
26
pandemic, as includes technology that will mitigate the negative
impacts of the light emitted from the sign. Id.
• Commissioner Johnson explained “[m]y job is to interpret the
Application in light of the Code in front of us.” [CF, 428]. In
considering the Application’s consistency with the purposes of the
LUC, Commissioner Johnson noted “the removal of other signs that
the Land Use Code does speak to clutter and visual appearance.” [CF,
428] Further, he noted the commercial nature of the area in which the
sign would be located and how the proposed sign would not add
clutter. [CF, 428]. Commissioner Johnson also referenced the
proposed sign’s location along I-25 and Harmony Road’s 55 mph
speed limit, and how the technology used for the sign and the
background illumination proposed by the Application was appropriate
when accounting for those circumstances. [CF, 428]
• The Board’s deliberation shows consideration of the purposes and
intent of the sign code including aesthetic values, location and
identification of businesses, health, welfare, and safety of the public,
and the avoidance of clutter. [CF, 419-431] Commissioner Kefalas
discussed the various benefits to the community of a sign like that
27
proposed by StreetMedia. [CF, 427] He also explained that his
decision was influenced by the new technology of StreetMedia’s
proposed sign. [CF, 430]. After acknowledging the differing
conclusions of County staff, Commissioner Kefalas found
StreetMedia’s application was distinguishable from prior applications
that had been rejected as referenced by staff, specifically, the
SIGHTLINE technology and size of the sign. [CF, 424, 427].
• In StreetMedia’s summation during the quasi-judicial hearing it
testified that: “[The proposed sign] furthers the purpose/intent of the
Sign Code. It advances the health, safety, and welfare. It provides for
safe and effective identification of uses. It avoids sign clutter and
maintains visual appearance of the County through high-quality
design and placement in relation to adjacent, elevated street. And five
signs [8 sign faces] will be removed. This sign proposal does not
affect property values, as is demonstrated by the empirical study that
we provided to you.” [CF, 411]
In addition to these examples of overt evidentiary support, there are multiple
examples of less explicit evidence relating to the intent and purpose of the LUC.
For example, Commissioner Kefalas noted the consolidation of signage related to
28
this appeal that he found important. [CF, 364]. Commissioner Donnelly addressed
the context around the sign as being near large scale commercial uses. [CF, 368].
This proximity to large commercial uses is also noted in StreetMedia’s
presentation and in their brief submitted to the Board. [CF, 393; CF 177-179]. The
record evidence also includes references to the sign’s ability to successfully co-
exist with the surrounding context regarding wildlife, natural areas, and lighting.
[CF, 359, 367-368, 414-418].
The Findings and Resolution of the Board describes in detail how
StreetMedia’s application meets the purposes of the sign regulations in the LUC.
“The appeal is consistent with the purpose and standards because it will remove
clutter and protects and maintains the visual appearance and property values of the
area.” [CF, 468]. Also, “the sign is located in an area with background lighting,
and the sign will not significantly affect that background lighting. The sign is also
located at an intersection of two high speed roadways, which diminished concerns
relating to dwell time. The appeal is consistent with implementation of the sign
code because it removes clutter including removal of approximately eight other
signs….It will beautify roadways and give small businesses an opportunity to
communicate with customers. Further, the SITELINE technology employed by the
sign allows for directional distribution of light so as to minimize interference and
29
mitigate impacts of a lighted sign.” Id. [CF, 467] The Board further demonstrated
its commitment to the intents and purposes of the Sign Code in paragraph 8 of the
Findings and Resolution by clarifying that StreetMedia would be removing 8 other
sign faces, thereby reducing clutter. [CF, 466].
At its core, the City’s argument that the Board misinterpreted or misapplied
the LUC is more fundamentally an argument that the Board didn’t apply the LUC
in a manner consistent with what the City wanted. However, that is not the
standard. The standard to overrule a local board due to misinterpretation or
misapplication of its own regulations is a high bar that the City does not reach.
While the Board takes issue with the City’s focus on the District Court’s
conclusions, a significant portion of the City’s Opening Brief is attributed to th at
topic and therefore the Board presents brief argument. In describing the District
Court’s conclusions, the City ignores findings and analysis that do not support its
desired outcome. For example, the City argues that the District Court did not
analyze the Board’s interpretation of the LUC, yet the District Court order states:
Moreover, the Court defers to the Board’s interpretation of the LUC to
allow the removal of older signs as part of the proposal because it is
reasonable, the LUC language does not expressly contradict this
interpretation, and it aligns with the purposes of reducing clutter…”
[CF, 891] “The Court agrees with the County’s argument and finds that
the Board did consider the purpose and intent of section 10 based on
the evidence presented that the sign would promote the aesthetic values
by reducing visual clutter.” [CF, 891].
30
The Board appreciates that the City does not agree with the conclusions of
the District Court, but to the extent the Court considers the District Court’s order, it
should be considered in its entirety.
B. CRITERION TWO – UNIQUE HARDSHIP
The second criterion applicable to the Board’s decision was to consider
whether there are extraordinary or exceptional conditions on the site which would
result in a peculiar or undue hardship on the property owner if Section 10 of LUC
is strictly enforced. The Board’s Findings and Resolution addresses this criterion
by stating: “The Property is located at an elevation below the adjacent roadways,
making placement and view of a sign more difficult. Further, the adjacent
roadways are high speed major roadways. The topography o f the site creates a
hardship that can be mitigated by the placement of the sign and the implementation
of the strategies of directional lighting and dwell time as indicated in the
Application. The placement of the sign as indicated…will increase its viewa bility
and make it safer for motorists to view.” [CF 467]
StreetMedia presented, and the Board considered, various reasons why strict
enforcement of the LUC would result in a hardship in this location. More
specifically, StreetMedia testified that its Application presents a “classic case” for
a variance or an appeal, given the topography of the area and its proximity to major
31
roadways. [CF, 396]. The unique physical nature of the property was outlined in a
detailed brief filed by StreetMedia with the Board in advance of the hearing. Vol. I,
pp. 21-23. [CF, 177-179]. StreetMedia also presented various photographs of the
area and showed that “[t]he grade installation site is 16 -feet below adjacent
sidewalk. Strict compliance would deprive the Applicant of being able to have a
sign at all here that made any sense.” [CF, 411]. Because of the topography of the
location, StreetMedia demonstrated that although the proposed sign was 30 feet
tall, it would practically appear only as a 14-foot-tall sign given the ground
surrounding the site of the sign was depressed and a much lower grade. [CF, 411].
On this point, StreetMedia noted that without the height modification, a sign would
not be placed in this location because of the visual obstruction caused by the
surrounding area being higher in elevation. [CF, 410] StreetMedia presented
further evidence that the setback variance is needed to ensure safe viewing of the
sign, that strict adherence to the code would be less safe than the proposed
variance, and the variance will further the ability of people to see the sign. [CF
405]. With regard to the dwell time, StreetMedia explained that based on a Federal
Highway Administration study, which was provided to the Board, the proposed six
second loop is safe. [CF, 408]; see also [CF 234-236].
32
In its brief in support of the Application, StreetMedia discussed hardship for
each separate appeal issue and included an executive summary. [CF, 172-217].
StreetMedia specifically noted that given the size and speed of Harmony Road, a
sign face of 90 feet is insufficient to deliver a message to the traveling public. [CF
198-199]. StreetMedia further noted that the property is unique because it is one of
the few on such a large interchange at the corner of an interstate and a major
highway. Id. at p. 49. [CF, 205]. Strict application of the LUC would constitute a
hardship, StreetMedia explained, given the nature of the adjacent roadways, the
absence of residential property nearby, the commercial zoning and nature of the
area, and the mitigation impacts of new technological techniques employed by the
proposes sign. [CF, 205].
Commissioners Donnelly and Johnson similarly commented on the nature of
the area noting its heavy commercial use. [CF, 368, 429]. At this location, as
discussed by StreetMedia and the Board, strict enforcement of the sign code
regulations would prohibit a meaningful sign from existing. The Board’s
discussion of the Application during the quasi-judicial hearing reflects their
determination that the subject property is unique, and strict application of the sign
regulations would result in a unique/peculiar or undue hardship. In addition to the
Board’s comments referenced above, Commissioner Johnson directly discussed the
33
matter of hardship and the elevation and topography of the surrounding roadways.
[CF, 374-375]. He noted that that without a variation to the sign code, because of
the topography and context, StreetMedia will suffer harm as a result, and
commented “I do think there is a hardship because of the topography of the site
having a pretty significant elevat ion below the roadway.” [CF 374, 429]
Commissioner Donnelly further commented on the demonstrated uniqueness of the
property and the hardship that would be experienced without the appeal [CF, 419],
finding this is a “high traffic, high-traveled roadway with higher speeds.” [CF,
421].
With respect to this criterion, the City notes StreetMedia’s status as a
leaseholder in the subject property rather than the “owner” and argues only
hardships incurred by the fee owner are relevant. The City’s application of this
criterion is overly literal and unreasonable. It is clear in the record that StreetMedia
is the applicant and has a lease interest in a portion of the property for the purpose
of installing a sign. [CF 262]. It is also established that the fee owner of the
property is the State of Colorado Land Board, whose mission is to raise money for
schools. [CF, 263]. As the holder of an interest in the property, StreetMedia clearly
falls within the criterion’s reference to hardship. Regardless, in addition to the
hardship related to StreetMedia, the record has competent support for a hardship on
34
the State Land Trust of approximately $1,000,000.00 in lost revenue if StreetMedia
is unable to install the proposed sign. [CF, 194] As argued by StreetMedia in the
quasi-judicial proceedings, failure to allow the appeal to move forward would
result in a hardship on the State Land Trust because the standards as written make
it impractical to build a sign and for the State Land Trust to pursue its mission to
generate revenue. [CF, 202, 216].
As part of the quasi-judicial proceedings, StreetMedia submitted a nearly 50-
page brief titled “Technical and Legal Justification for the Requested Appeals”
with argument and evidence about each review criterion and how it was satisfied
by the Application. [CF, 172-236]. This brief includes various maps, technical
schematics, and photographs of the site. [CF, 208-217]. It also includes academic
studies related to the economic impact of signs [CF, 218], as well as information
related to the safety and effectiveness of similar signs [CF, 234]. The brief also
includes a one-page executive summary chart providing an analysis and supporting
arguments for each of the listed appeal item. [CF, 207]. The voluminous nature of
the submissions, arguments, and presentations of the Applicant provide more than
ample competent evidence to support the findings and decision of the Board.
35
C. CRITERION THREE – ECONOMIC ADVANTAGE
The third criterion applied by the Board deals with economic marketing
advantages related to the sign. The Findings and Resolution addresses this
criterion as follows: “The appeal will not result in an unfair business advantage as
the sign will permit variety of non-profit and business advertisement in a location
that is highly visible to the public.” [CF, 468]. During deliberation, the Board
discussed the importance of expanded competition and equalization of the playing
field in this context, with StreetMedia’s sign serving in furtherance of these goals.
[CF, 429-430]. This is consistent with the purpose and intent of the LUC to
provide the public and property owners with an opportunity for safe and effective
identification of uses and locations within the County. Commissioner Donnelly
commented that “these cases…play a significant role in allowing our small local
businesses to be able to reach customers that they normally would have no
opportunity to do. And it’s even more stark when you think about it being right
across the street from a Walmart. It gives a small shop, a small business…the
opportunity to at least let potential customers know that they are in the
marketplace.” [CF, 420]. Commissioner Johnson also addressed this issue stating:
“I don’t really think there’s any economic or marketing advantage over other
businesses…in this particular location, it’s not advertising a business that’s
36
competing with any of the other businesses in the area, so I don’t think the appeal
would create any economic or marketing advantages.” [CF, 429-430].
Commissioner Kefalas similarly noted a commitment to providing the public with
knowledge of the variety of businesses, non -profits, and services available in the
county. [CF, 427]. He also noted that this is sign provides a useful “tool” for
accomplishing the goal of equalizing advertising space.
The record includes substantial evidence from StreetMedia about how the
advertising industry works to level the playing field between businesses that are on
main roads and those that are not. [CF, 397]. It further explained that this sign will
serve to create a more competitive rather than less competitive landscape for
businesses in Larimer County. [CF, 397]. StreetMedia’s brief filed with the Board
also stated “this sign will not be perceptibly more prominent than other signs in the
area, further it will tend to level the playing field among businesses.” [CF, 191].
The Board’s deliberation and Findings and Resolution shows it considered
approval of StreetMedia’s sign to enhance competitiveness rather than stifle it.
The heavily commercial nature of the area where the sign was proposed would
negate any competitive advantage for StreetMedia over other sign companies.
[CF, 420]. Further, the requested variances in the height and setback requirements
would actually afford StreetMedia the opportunity to compete with other
37
advertisers in the area. The record shows the Board made a careful analysis of the
economic and market advantage criterion and its decision is supported by
competent evidence in the record.
The City argues that because the Board’s deliberations relating to the
economic impact to small businesses or local economy are not supported by
scientific data in the record, they are meaningless. Further, that the Board is
simply relying on personal opinions and speculation. The implication from this
argument is that without expert testimony or detailed scientific analysis, the Board
is not allowed to utilize their familiarity with the region and residents they were
elected to represent. Instead, according to the City’s argument, the Board must
restrain themselves from considering any knowledge in the public domain or in
their own experience. The City cites no legal authority for such a position.
Consideration of common sense and familiarity with the local community,
especially in the context of local land use planning, is beneficial and appropriate in
a case like this. And regardless, as outlined above, the record includes competent
evidence related to local economic advantages and conditions, and so the City’s
argument fails, nonetheless.
38
Showing competent and evidence in the record in support, the Board’s
finding that Criterion 3 was satisfied was not arbitrary or capricious and should
therefore be affirmed.
VII. CONCLUSION
The City disapproves of this particular sign because it is contrary to the
planning and aesthetic values of the City. The sign displeases the City because it is
adjacent to the City, near its natural areas, and at major entryway to the City off of
I-25. However, the sign is within the jurisdiction of Larimer County and must be
evaluated on criteria in the LUC. The City largely ignores all record evidence
relied on by the Board, and ultimately fails to meet its high burden of
demonstrating that the Board’s decision was contrary to law or lacking in
competent evidentiary support. The Board respectfully requests its decision be
affirmed.
Respectfully submitted this 15th day of October , 2021.
LARIMER COUNTY ATTORNEY’S OFFICE
/s/ Frank Haug
William G. Ressue, Reg. No. 34110
David Ayraud, Reg. No. 28530
Frank Haug, Reg. No. 41427
Attorneys for Larimer County Board of County
Commissioners
39
CERTIFICATE OF SERVICE
I hereby certify that on this 15th day of October , 2021, I served the
foregoing ANSWER BRIEF OF DEFENDANT-APPELLEE BOARD OF
COUNTY COMMISSIONERS OF LARIMER COUNTY via the Colorado Courts
E-Filing System, on the following:
Andrew D. Ringel
Hall & Evans, L.L.C.
1001 17th Street, Suite 300
Denver, CO 80202
ringela@hallevans.com
John R. Duval
Claire Havelda
City Attorney’s Office
300 Laporte Avenue
P.O. Box 500
Fort Collins, Colorado 80522
jduval@fcgov.com
chavelda@fcgov.com
Todd Messenger
Andrew J. Helm
Fairfield and Woods, P.C.
1801 California Street, Suite 2600
Denver, Colorado 80202-2645
tmessenger@fwlaw.com
ahelm@fwlaw.com
s/Jennifer D. Infeld