HomeMy WebLinkAbout2021CA833 - City Of Fort Collins V. Board Of County Commissioners Of Larimer County, Et Al - 013 - Streetmediagroup's Answer Brief
COLORADO COURT OF APPEALS
2 East 14th Avenue
Denver, Colorado 80203
Telephone: (720) 625-5000
▲ COURT USE ONLY ▲
Appeal from the District Court, Larimer
County, Honorable Daniel McDonald, Case
No. 2020CV030580
Plaintiff/Appellant: THE CITY OF FORT
COLLINS, COLORADO, a municipal
corporation,
v.
Defendants/Appellees: BOARD OF
COUNTY COMMISSIONERS OF
LARIMER COUNTY, COLORADO;
STREETMEDIAGROUP, LLC.
Attorneys for Defendant/Appellee:
StreetMediaGroup, LLC
Todd G. Messenger, Reg. No. 38783
Amanda Jokerst, Reg. No. 47241
FAIRFIELD AND WOODS, P.C.
1801 California Street, Suite 2600
Denver, Colorado 80202
Telephone: (303) 830-2400
Facsimile: (303) 830-1033
E-Mail: tmessenger@fwlaw.com;
ajokerst@fwlaw.com
Case Number: 2021CA833
ANSWER BRIEF OF DEFENDANT/APPELLEE
STREETMEDIAGROUP, LLC
DATE FILED: October 15, 2021 9:25 PM
FILING ID: BCB76ACEFBCC0
CASE NUMBER: 2021CA833
ii
CERTIFICATE OF COMPLIANCE
I hereby certify that this brief complies with all requirements of C.A.R. 28 or
C.A.R. 28.1, and C.A.R. 32, including all formatting requirements set forth in these
rules. Specifically, the undersigned certifies that:
The brief complies with the applicable word limits set forth in C.A.R. 28(g).
It contains 9,479 words (principal brief not to exceed 9,500 words; reply
brief not to exceed 5,700 words).
The brief complies with the standard of review requirements set forth in
C.A.R. 28(b).
In response to each issue raised, the Appellee: provides under a separate
heading before the discussion of the issue, a statement indicating whether
appellee agrees with appellant’s statements concerning the standard of
review and preservation for appeal and, if not, why not.
I acknowledge that my brief may be stricken if it fails to comply with any of
the requirements of C.A.R. 28 and C.A.R. 32.
By: s/ Todd G. Messenger
Attorney for Defendant/Appellee:
StreetMediaGroup, LLC
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TABLE OF CONTENTS
I. STATEMENT OF THE ISSUES PRESENTED ON APPEAL ................ 1
II. STATEMENT OF THE CASE .................................................................. 1
A. Nature of the Case ................................................................................. 1
B. Factual Background ............................................................................... 4
III. SUMMARY OF THE ARGUMENT ....................................................... 12
IV. ARGUMENT............................................................................................ 14
A. The District Court Correctly Decided that the Board of County
Commissioners Acted Within Its Proper Discretion in Interpreting
the Land Use Code as to StreetMedia’s Sign Appeal ......................... 14
1. Appellee’s position on standard of review ................................... 14
2. Appellee’s position on preservation of error ................................ 18
3. The BOCC correctly interpreted the applicable law, and the
District Court correctly upheld the BOCC’s decision .................. 18
B. The District Court Correctly Held That The Board of County
Commissioners Was Within Its Proper Discretion When It Applied
The Land Use Code To StreetMedia’s Sign Appeal ........................... 25
1. Appellee’s position on standard of review ................................... 25
2. Appellee’s position on preservation of error ................................ 27
3. The BOCC correctly applied the applicable law, and the
District Court correctly upheld the BOCC’s decision .................. 27
a. LUC § 22.2.5.A. .................................................................... 28
iv
b. LUC § 22.2.5.B. .................................................................... 31
c. LUC § 22.2.5.C. .................................................................... 34
C. The District Court Correctly Decided That The Board Of
County Commissioners’ Approval Of The Sign Appeal
Was Supported By Competent Record Evidence................................ 36
1. Appellee’s position on standard of review ..................................... 36
2. Appellee’s position on preservation of error ................................. 37
3. The BOCC’s approval of the Sign Appeal was
supported by competent record evidence, and the
District Court correctly upheld the BOCC’s decision ................... 37
V. CONCLUSION ........................................................................................ 39
VI. CERTIFICATE OF SERVICE ................................................................. 42
v
TABLE OF AUTHORITIES
Cases
3 Bar J Homeowners Ass’n, Inc. v. McMurry,
967 P.2d 633 (Colo. App. 1988) ........................................................ 18, 27, 37
Bd. of Cty. Comm’rs of Routt Cty. v. O’Dell ,
920 P.2d 48 (Colo. 1996) ................................................ 14, 16, 17, 25, 26, 36
Bentley v. Valco, Inc.,
741 P.2d 1266 (Colo. App. 1987) ..........................................17, 26, 32, 36, 37
Bristol v. Cty. Ct. of Larimer Cty.,
352 P.2d 785 (Colo. 1960) ................................................................. 15, 21, 25
Bunch v. Indus. Claim Appeals Off. of State of Colorado,
148 P.3d 381 (Colo. App. 2006) .............................................................. 27, 28
Burns v. Bd. of Assessment Appeals of State of Colo.,
820 P.2d 1175 (Colo. App. 1991) ................................................ 17, 27, 34, 37
City of Aurora ex rel. Utility Enterprise v. Colo. State Engineer,
105 P.3d 595 (Colo. 2005) ....................................................................... 40, 41
CLPF-Parkridge One, L.P. v. Harwell Invs., Inc.,
105 P.3d 658 (Colo. 2005) ............................................................................. 31
Colorado Mun. League v. Mountain States Tel. & Tel. Co.,
759 P.2d 40 (Colo. 1988) ...................................................4, 16, 17, 26, 32, 37
Diehl v. Weiser,
2019 CO 70 .................................................................................................... 10
Higby v. Bd. of Cty. Comm’rs of El Paso Cty.,
689 P.2d 635 (Colo. App. 1984) .................................................................... 26
vi
Langer v. Bd. of Comm’rs of Larimer Cty.,
2020 CO 31 ........................................................................................ 16, 19, 25
Lieb v. Trimble,
183 P.3d 702 (Colo. App. 2008) ........................................................ 14, 15, 25
Phillips Cty. Ct. v. People ex rel. Chicago, B. & Q.R. Co.,
133 P. 752 (Colo. 1913) ................................................................................. 26
Pro’s Closet, Inc. v. City of Boulder,
2019 COA 128 ............................................................................................... 27
Reed v. Town of Gilbert,
576 U.S. 155 (2015)...................................................................................... 35
Sierra Club v. Billingsley,
166 P.3d 309 (Colo. App. 2007) ........................................................ 15, 26, 27
Sundheim v. Board of County Comm’rs of Douglas County,
904 P.2d 1337 (Colo. App. 1995) aff’d 926 P.2d 545 (Colo. 1996) ............... 4
Whitelaw v. Denver City Council,
2017 COA 47 ................................................................................................. 14
Winter v. Indus. Claim Appeals Off.,
2013 COA 126 ............................................................................................... 27
Zoning Bd of Adjustment of Garfield Cty. v. DeVilbiss ,
729 P.2d 353 (Colo. 1966) ............................................................................. 10
Statutes
C.R.S. § 13-17-102 .................................................................................................. 41
C.R.S. § 13-17-102(7) .............................................................................................. 41
vii
Rules
C.R.C.P. 106 ............................................................................................................ 10
C.R.C.P. 106(a)(4) .............................. 2, 3, 13, 14, 16, 17, 25, 26, 27, 32, 34, 36, 37
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Defendant-Appellee, StreetMediaGroup, LLC (“StreetMedia”), through its
counsel, Todd G. Messenger and Amanda C. Jokerst of Fairfield and Woods, P.C.,
hereby submits its Answer Brief:
I. STATEMENT OF THE ISSUES PRESENTED ON APPEAL
1. Did the District Court correctly conclude that the Board of County
Commissioners of Larimer County correctly interpreted the Larimer County Land
Use Code as to StreetMedia’s Sign Appeal?
2. Did the District Court correctly conclude that the Board acted within its
lawful and reasonable discretion when it applied LUC § 22.2.5 . to approve
StreetMedia’s Sign Appeal?
3. Did the District Court correctly determine that the BOCC’s decision on
StreetMedia’s Sign Appeal is supported by competent evidence because such
evidence is present in the record?
II. STATEMENT OF THE CASE
A. Nature of the Case
This case is about the Defendant-Appellee Larimer County (“County”) Board
of County Commissioners’ (“BOCC”) unanimous approval of a “Sign Appeal” filed
by StreetMedia after a quasi-judicial hearing (“Approval Hearing”). The approval
authorized StreetMedia to take the next step—to obtain an administrative building
permit for what is, in context, a modest sign (“Harmony Sign”). The Harmony Sign
has since been lawfully constructed on property leased from the State Land Board
in the northwest quadrant of the intersection of I-25 and Harmony Road. CF, p 694.
2
Before the Approval Hearing, Plaintiff-Appellant City of Fort Collins (“City”)
objected to StreetMedia’s Sign Appeal application (“Application”) in writing. CF,
pp 251-261. Attached to the City’s letter were an analysis of the Harmony Sign
against the City’s sign regulations, abstract comments about the Arapaho Bend
natural area that did not take into account the actual design and sophisticated
technologies used in the Harmony Sign, and a draft copy of a “Harmony Gateway
Plan.” Id. None of that material related to the standards for approval of a Sign Appeal
that are set out in Larimer County Land Use Code (“LUC”) § 22.2.5. (collectively,
“Approval Criteria”). The City did not appear at the hearing. CF, pp 343, 731.
The BOCC did not accept the City’s arguments, which included demands that
the BOCC apply standards to the Application that are not actually in the LUC, and
consider evidence that was not competent . CF, pp 157-161. Dissatisfied with the
result, the City asked the County to reconsider—twice—and then appealed the
BOCC’s unanimous decision to the District Court under C.R.C.P. 106(a)(4). CF, pp
4-20, 68-77, 436. After the District Court ruled in favor of Defendants -Appellees,
the City appealed to this Court. CF, 897-898. This time, the City implores this Court
not only to apply standards and purpose statements that are not actually in the LUC,
but also to re-weigh the record evidence and accept only that evidence that the
supports the City’s preferred result. Opening Brief at 36. That is a tall order. Courts
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do not rewrite ordinances, and when reviewing a district court decision on a C.R.C.P.
106(a)(4) complaint, appellate courts do not reweigh the evidence.
The BOCC applied the correct law, correctly. The Sign Appeal process (set
out in LUC §§ 22.2.1.A.3., 22.2.2.B., and 22.2.5.) authorizes the BOCC to “approve
an appeal from the applicable requirements in section 10 of this code,” if the BOCC
finds that, after a quasi-judicial hearing, the Approval Criteria are met. CF, p 65.
LUC § 10 (“Sign Code”) contains the regulations for signs in the unincorporated
County that apply in the absence of a Sign Appeal .1 CF, pp 37-50.
Digging deeper, the Approval Criteria are specifically enumerated in LUC §§
22.2.5.A., B., and C. CF, p 65. When the BOCC decides a Sign Appeal, it makes a
discretionary judgment based on record evidence and testimony. It weighs the
credibility of the witnesses and determines whether the Approval Criteria are
satisfied based on a preponderance of what it determines is credible competent
evidence. Here, the BOCC found that a preponderance of the record evidence
showed that all of the Approval Criteria were satisfied. That record evidence
included a comprehensive, credible, competent, and substantial documents and
1 Larimer County replaced its Land Use Code, effective on March 31, 2021, and
replaced its Sign Code, effective on June 21, 2021. The Code provisions that applied
to the StreetMedia Sign Appeal no longer exist s.
4
testimony provided by StreetMedia that addressed each and every Approval
Criterion.
In fact, more than 18 percent of the record is information that StreetMedia
provided to the BOCC. The City did not attend the hearing, and StreetMedia’s
evidence is not substantively addressed in the Opening Brief, so there is no contest
as to its competence.
On review, the BOCC’s reasonable interpretation of its own Approval Criteria
is due deference by the Court. If this Court finds competent evidence in the record
in support of the BOCC decision (that is, evidence that “a reasonable mind might
accept as adequate” to support the decision), it must accept it to the exclusion of
other evidence and affirm. Colorado Mun. League v. Mountain States Tel. & Tel.
Co., 759 P.2d 40, 44 (Colo. 1988) (internal quotations omitted). Applying the correct
standards, the District Court reached the correct result. Even if this Court disagrees
with how the District Court got there, “[a]ppellate courts, if it is possible, should
uphold a correct result, even if the reasoning was incorrect.” Sundheim v. Board of
County Comm’rs of Douglas County, 904 P.2d 1337, 1345 (Colo. App. 1995), aff’d,
926 P.2d 545 (Colo. 1996).
B. Factual Background
The Sign Appeal process exists to allow the BOCC the flexibility to approve
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signs that do not strictly comply with the Sign Code, provided that the BOCC finds
that the Approval Criteria are satisfied. As such, a person or entity that wants to
construct a sign in Larimer County has a choice. They may either strictly comply
with the approval standards in LUC § 10 or seek BOCC approval of “an appeal from
the applicable requirements in section 10” pursuant to LUC § 22.2.5. CF, p 65. If
they choose the latter, all “applicable requirements” in the Sign Code are subject to
modification. Id.
On its face, the Sign Code censors “off-premise” speech. CF, p 39. Moreover,
in StreetMedia’s view, the Sign Code does not allow signs that are large enough, tall
enough, and situated to be reasonably legible to traffic along Harmony Road in the
vicinity of Interstate 25, particularly in locations where, as here, the road is elevated
above the adjoining property. CF, pp 276-278, 297-298. For those reasons, among
others, StreetMedia chose to file a Sign Appeal. It filed the application on March 25,
2020. CF, pp 263-264.
The Application addressed the consistency of the Harmony Sign with the
purposes expressed in LUC § 10.1. CF, pp 279-282. It addressed how the Harmony
Sign is consistent with the purpose 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 county,” and to “avoid clutter
6
and protect and maintain the visual appearance and property values of the
agricultural, residential, business, commercial and in dustrial areas of the county.”
CF, pp 268, 279-82, 284-286, 291-92, 299-300.
The Application provided comprehensive, detailed evidence and technical and
legal analysis in support of the Sign Appeal, including:
1. The transmittal letter and application form that, inter alia, detail
how the Harmony Sign will generate approximately $1 million in revenue for
public schools over the term of StreetMedia’s lease with the State Land Board,
CF, pp 263-64;
2. Technical materials, including:
a. A site plan showing proposed dimensions and setbacks of
the Harmony Sign, superimposed over aerial photography, CF, p 329;
b. A conceptual drawing of the Harmony Sign, CF, pp 333;
c. Five photo simulations of the proposed Harmony Sign in
context, CF, pp 331-335;
d. A map and pictures of five other existing sign structures
(eight total sign faces) to be removed after the Harmony Sign was
constructed, CF, pp 327-328; and
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e. A photometric plan (illustrating the sign’s light mitigation
technology), CF, p 336;
3. A Technical and Legal Justification for the Requested Appeals
(“Technical Report”), providing comprehensive narrative about the context of
the application and competent evidence and analysis supporting each and
every component of the appeal, CF, pp 271-305;2
4. A one-page “Executive Summary” of the Technical Report that
sets out in tabular fashion how each component of the appeal complied with
the Approval Criteria, CF, p 268; and
5. Two empirical studies, one on the economic impacts of
billboards, and the other on the safety of billboards. CF, pp 265-67, 310-325.
The BOCC held a quasi-judicial hearing on StreetMedia’s application on June
1, 2020. CF, p 163. StreetMedia’s testimony occupies 35 pages of the record
(“Hearing Testimony”). CF, pp 383-418. The City knew about the hearing, and sent
correspondence to County Staff objecting to the application , but failed to provide
any competent evidence or analysis that addressed any of the Approval Criteria. CF,
2 The Technical Report included at CF, pp 172-206 is identical to the one included
at CF, pp at 271-305. The one-page summary at CF, p 207 is identical to the one-
page summary at CF, p 268. StreetMedia cites to the more legible version of each.
8
pp 251-261, 351-432. Instead, the City provided the County with its own plans and
standards, none of which could be legally applied to StreetMedia’s Sign Appeal. CF,
pp 251-261.
The hearing was held a few blocks from City Hall. CF, p 343. However, the
City did not attend the h earing. CF, p 731. As such, it did not explain to the BOCC
the basis for its demand that the BOCC ignore applicable County regulations and
instead apply City regulations and draft City plans to property outside of the City.
Like the Application materials, the Hearing Testimony addressed and
supported all of the components of the Sign Appeal—including the Staff-identified
issue of the sign height limitation (a restriction that is set out in the same table as
sign setbacks). CF, pp, 386-418, 374-377, 409-411. StreetMedia pointed out in detail
how the City’s objections were irrelevant to the Sign Appeal, how the City’s
arguments (which were advanced by County Staff) were logically and legally
flawed, and why the City’s objection was without merit and should be disregarded.
CF, pp 385-386, 390-397, 399-400, 406-407, 409-411.
The Application and Hearing Testimony both addressed the objection to the
sign’s use for “off-premise” content. CF, pp 174-177, 398-404. StreetMedia advised
the BOCC that content-based regulations are presumptively unconstitutional. CF, pp
398-404. As such, StreetMedia advised that LUC § 10.5.E. (the County-wide ban on
9
“off-premise” content) could not be enforced, and the BOCC should not give in to
the suggestion that it deny the Sign Appeal based on the content that StreetMedia
anticipated displaying on the Harmony Sign. Id.
After testimony concluded, the BOCC deliberated. CF, pp 419-431. It then
decided the Sign Appeal, as LUC § 22.2.B.5.b. requires. CF, p 431. The decision to
approve the Sign Appeal was unanimous. Id.
The County administratively issued a written resolution memorializing the
June 1, 2020 approval on July 28, 2020. CF, pp 157-161. The City filed its Complaint
on August 25, 2020, in which it asked the District Court to find that the BOCC
“exceeded its jurisdiction and abused its discretion,” “misinterpreted and
misapplied” its Sign Appeal criteria, and that the BOCC’s decision was not
supported by “competent evidence.” CF, pp 4-20. The Complaint was filed 28 days
after the written resolution, but 85 days after BOCC announced its decision.
During the pendency of litigation initiated by the City, the City took no steps
to maintain the status quo by invoking any of the available Colorado Rules of Civil
Procedure that are available for that purpose. CF, pp 712, 792. In due course, the
County lawfully issued a building permit for the Harmony Sign on October 15, 2020.
CF, p 693. StreetMedia constructed the sign later that month and put it into service
in November 2020. CF, pp 694, 701. The Harmony Sign has been in operation for
10
nearly a year, displaying a variety of commercial and noncommercial content —and
providing a revenue stream to the State Land Board to advance its mission of
providing funds for public education. CF, p 694.3
In the proceedings below, StreetMedia filed two motions to dismiss the City’s
case. CF, pp 116-137, 711-717. The first motion asserted that the Complaint was
untimely under C.R.C.P. 106 and that the City lacked standing. CF, pp 116-137. The
second motion, filed after the Harmony Sign was constructed, asserted that the case
was moot. CF, pp 711-717. Between the first and second motions, StreetMedia
answered the Complaint and cross-claimed against the County, alleging that its ban
on “off-premises” content was unconstitutional. CF, pp 613-627. The District Court
denied both motions and dismissed the cross -claim.4 CF, pp 603-611, 744-746, 878-
3 StreetMedia submits that the City’s case is moot. Mootness implicates subject
matter jurisdiction and can be raised at any time by the parties or by the court. See
Diehl v. Weiser, 2019 CO 70 ¶ 9. Under Zoning Bd of Adjustment of Garfield Cty. v.
DeVilbiss, 729 P.2d 353 (Colo. 1986), the City’s failure to attempt to maintain the
status quo, plus the subsequent change in circumstances after the City’s Complaint,
mooted the City’s claims. StreetMedia moved to dismiss on this basis on February
24, 2021. CF, pp 711-717. The District Court denied the motion eight days before it
denied the City’s Complaint. CF, pp 878-896. The District Court reached the correct
result, so StreetMedia did not appeal that denial. The BOCC’s replacement of the
LUC and Sign Code further moots the City’s case. On this record, this Court should
dismiss the City’s appeal as moot.
4 Regarding the dismissal, the Court found that StreetMedia did not have standing
because, with its Sign Appeal approved, it was not injured.
11
884. The District Court denied the City’s Complaint by order dated April 20, 2021
(“Order”). CF, pp 885-896.
Through the course of the proceedings, the City and the County Staff asked
the BOCC (and the Courts) to apply a half dozen entirely new purposes and
standards that are not set out in the text of the LUC, ad hoc, to this case. CF, pp 167,
251-261. They included: (1) the City’s Harmony Gateway Plan; (2) the City’s
standards for off-premises billboards; (3) the City’s draft Harmony Corridor Plan
for the Harmony Gateway Area; (4) an “intent” to “not allow off-premises signs”;
(5) an “intent” to “have sign regulations consistent with the regulations adopted by
the City of Fort Collins and the City of Loveland”; (6) an “intent” to “reduce the
potential for nonconformities should signs permit ted in unincorporated Larimer
County [be] annexed to one of those cities”; and (7) a requirement that the BOCC
make a specific finding to justify allowing an off-premise message on a sign “when
no off-premises signs have been allowed since June 15 , 1992.” CF, pp 167, 251-261,
668-669; Opening Brief at 6-9.
In addition to the half-dozen ad hoc purposes and standards, County Staff also
urged the BOCC to modify its procedure from that set out in the plain text of the
LUC by holding StreetMedia to an enhanced burden of proof. CF, p 168.
Specifically, as to the criterion regarding hardship, County Staff suggested that
12
“compelling evidence” was required. Id. LUC § 22.2.2.B.6. plainly establishes the
burden of proof as the “preponderance of the evidence.” Id.
Ultimately, the BOCC declined the invitations to rewrite its adopted purpose
statements, apply ad hoc standards, and increase the burden of proof. CF, pp 157-
161. It was not simply persuaded by the arguments of the County Staff or the City.
On this record, it is evident that: (1) the BOCC considered the competent evidence
presented; (2) the BOCC discounted or disregarded documents and testimony that
were irrelevant, distracting, and not credible; (3) the BOCC applied the correct law
correctly; and therefore, (4) the approval was proper. The District Court reviewed
the record and correctly found that the BOCC did not abuse its discretion, that the
BOCC correctly applied the correct law, and that the record included competent
evidence to support the BOCC’s decision.
III. SUMMARY OF THE ARGUMENT
This Court should affirm the Order because:
1. The BOCC correctly applied the correct law and did not abuse its
discretion; and
2. The record includes competent evidence in support of the BOCC’s
decision.
13
All parties agree the BOCC applied the correct law, that is, the Approval
Criteria. CF, pp 159-160; Opening Brief at 2, 14. Under C.R.C.P. 106(a)(4), if the
Court finds that there is no “abuse of discretion” in the application of the correct law,
and that competent evidence exists in the record to support the quasi -judicial
decision, then the Court must affirm the decision . That is what the District Court did.
The City improperly asks the Court to “consider the detailed and thorough
interpretation and application of the three relevant criteria provided by the County
Staff.” Opening Brief at 36. It is bedrock law that on C.R.C.P. 106(a)(4) review, the
Court does not re-weigh the evidence. Instead, it reviews the record for the existence
of competent evidence in support of the quasi-judicial decision—to the exclusion of
all else.
The City recites extensive County Staff testimony, none of which can be
considered on this appeal. The issue before this Court is not whether the BOCC
could have come to a different conclusion. It is whether the BOCC abused its
discretion and whether there is anything in the record to support what the BOCC
actually decided. The County Staff testimony and the City’s written objections do
not show an abuse of discretion and were not used to support the BOCC’s decision.
Consequently, on this review, that material must be disregarded.
14
The District Court stayed within its proper scope of review when it identified
competent evidence in support of the BOCC’s decision, confirmed that the BOCC’s
interpretation of the applicable law was reasonable (and therefore not a clear abuse
of discretion), and properly affirmed the BOCC’s quasi -judicial decision. This Court
should affirm.
IV. ARGUMENT
A. THE DISTRICT COURT CORRECTLY DECIDED THAT THE
BOARD OF COUNTY COMMISSIONERS ACTED WITHIN ITS PROPER
DISCRETION IN INTERPRETING THE LAND USE CODE AS TO
STREETMEDIA’S SIGN APPEAL
1. Appellee’s position on standard of review
StreetMedia agrees that an interpretation of law is reviewed de novo. Whitelaw
v. Denver City Council, 2017 COA 47 ¶ 8. On de novo review in a C.R.C.P. 106(a)(4)
proceeding, the Court of Appeals stands in the shoes of the District Court. Id. In that
capacity, any real question of interpretation of law would be “reviewed de novo,”
with deference given to “interpretations of the code by the governmental entity
charged with administering it . . . if they are consistent with the drafters’ overall
intent.” Id.; see also Bd. of Cty. Comm'rs of Routt Cty. v. O'Dell , 920 P.2d 48, 52
(Colo. 1996) (a quasi-judicial decision-maker’s interpretation of its own standards
“warrants deference by a reviewing court.”); Lieb v. Trimble, 183 P.3d 702, 704
(Colo. App. 2008) (“Generally, a reviewing court should defer to the construction of
15
a statute by the administrative officials charged with its enforcement.”). As such, if
there is a “reasonable basis” for the BOCC’s “interpretation of the law,” then this
Court “may not set aside the board’s decision.” Lieb, 183 P.3d at 704. As the District
Court correctly pointed out, “[a] mere disagreement with a ruling is not a sufficient
showing of abuse of discretion.” CF, p 887; see Bristol v. Cty. Ct. of Larimer Cty.,
352 P.2d 785, 786 (Colo. l960).
Where a real question of interpretation of the law is present ed, Courts apply
“the general canons of statutory interpretation.” Sierra Club v. Billingsley, 166 P.3d
309, 312 (Colo. App. 2007) (internal quotations omitted).
While the City’s first claim of error alleges that the District Court
misinterpreted the LUC, three out of four of its arguments about its first claim of
error do not appear to implicate any real question regarding interpretation of the
applicable law. In sum, the City appears to argue: (1) the District Court should have
structured its Order differently; (2) the BOCC and the District Court should have
considered evidence presented by County Staff regarding the intent of the Sign
Code; (3) the BOCC misapplied LUC § 22.2.5.A. by considering StreetMedia’s
removal of other signs from the County as a way to reduce sign clutter; and (4) the
BOCC misinterpreted LUC § 22.2.5.B. because StreetMedia is a lessee.
16
StreetMedia submits that the City’s first three arguments do not present a real
question about interpretation of what the law means. The first one does not raise a
substantive legal error at all. The second one complains about how the BOCC should
have considered evidence favorable to the City’s position. The third one is about
how the BOCC applied the law, rather than what the law itself actually means. Only
the fourth argument could be construed as one about “interpretation.”
As such, there is more law to consider regarding the standard of review. With
respect to the application of the law, the Court’s role is to review the record of the
BOCC’s decision for clear abuse of discretion. O'Dell, 920 P.2d at 50; Langer v.
Bd. of Comm’rs of Larimer Cty., 2020 CO 31 ¶¶ 13, 30. Absent a “clear abuse of
discretion,” the BOCC’s decision may not be disturbed. Langer, ¶ 13. An “abuse of
discretion” occurs when a governmental body “applies an erroneous legal standard
or when no competent evidence in the record supports its ultimate decision.” Id. It
is a very high bar.
When a Court in a C.R.C.P. 106(a)(4) proceeding reviews whether a quasi-
judicial decision is supported by the record evidence, its role is to confirm the
existence of competent evidence supporting the decision—disregarding contrary
evidence. See Mountain States, 759 P.2d at 44. The Court must affirm the quasi-
judicial decision “unless there is no competent evidence in the record to support it.”
17
O’Dell, 920 P.2d at 49 (internal quotations omitted). “No competent evidence”
means that the quasi-judicial decision is “so devoid of evidentiary support that it can
only be explained as an arbitrary and capricious exercise of authority.” Id. (internal
quotations omitted).
The corollary is that in a C.R.C.P. 106(a)(4) proceeding, the reviewing court
does not re-weigh the evidence. O’Dell, 920 P.2d at 51; Bentley v. Valco, Inc., 741
P.2d 1266, 1267-68 (Colo. App. 1987). Put another way, the Court does not
“substitute its own judgment” for the considered judgment of the quasi -judicial
decision-maker. O’Dell, 920 P.2d at 50. In application, that means the Court reviews
the record only for the presence of competent evidence that supports the quasi -
judicial decision, effectively disregarding all other information. See Bentley, 741
P.2d at 1268; Mountain States, 759 P.2d at 44.
Finally, “findings of fact may be express or implied,” and “the absence of
findings . . . is not fatal to a decision if there is evidence in the record” that supports
the decision. Burns v. Bd. of Assessment Appeals of State of Colo., 820 P.2d 1175,
1177 (Colo. App. 1991). As such, the written resolution under review by the Court
does not have to be perfect or comprehensive. See id. In fact, a written resolution is
not even a prerequisite to C.R.C.P. 106(a)(4) review. See 3 Bar J Homeowners
18
Ass’n, Inc. v. McMurry, 967 P.2d 633, 634 (Colo. App. 1998). At the end of the day,
all that matters is that the record supports the decision.
2. Appellee’s position on preservation of error
StreetMedia does not dispute that the City preserved a claim of error that the
BOCC misinterpreted the LUC. StreetMedia disputes that the City actually
presented such claim in its first three arguments under its first claim of error.
3. The BOCC correctly interpreted the applicable law, and the District
Court correctly upheld the BOCC’s decision
The District Court correctly held that the BOCC correctly applied the correct
law. The applicable law is not in dispute. All parties agree that the standards for the
Sign Appeal are the Approval Criteria, and that the BOCC applied the Approval
Criteria. CF, pp 159-160; Opening Brief at 2, 14
As to the City’s first argument in its first claim of error, t he City’s reliance on
Langer for the novel proposition that the District Court was obligated to “present its
own interpretation” in a distinct section of its Order is non-sequitur. Opening Brief
at 22. The District Court’s choice of how to organize its Order neither advances the
City’s case nor presents a legal issue for this Court. The choice is unrelated to the
Court’s interpretation of the law.
The Langer case provides no support for the City’s position. That case
involved whether a proposed “mountain coaster project” was “properly classified as
19
a Park and Recreation Facility, rather than as an Outdoor Commercial Recreation or
Entertainment Establishment.” Langer, ¶ 1. The determination made a difference
because the former was allowed in the zoning district in which the property was
located, but the latter was not. Id. at ¶ 5.
In its analysis of whether the BOCC correctly interpreted the LUC, the Langer
Court did not “present its own interpretation” of the LUC. Instead, the Court walked
through the BOCC’s reasoning, confirmed that the record supported the BOCC’s
determination, and then—noting that it may well have decided the issue differently
of it were in the BOCC’s shoes—the Court affirmed, holding:
. . . we might have reached a different conclusion than the BOCC were
we deciding this case in the first instance, under our applicable standard
of review, we do not do so. * * * On the facts presented here, and given
the substantial deference that we must affo rd the BOCC’s
determination, . . . we cannot say that the BOCC abused its discretion .
. . . .
Langer, ¶ 30.
Like the Langer decision, the District Court’s Order sets out the applicable
law and then applies that law. The Order walks through the BOCC’s construction of
the LUC based on the record evidence that supported it, and then affirms.
The Order gives proper deference to the BOCC construction of its own LUC,
finding repeatedly that it is “reasonable.” CF, pp 891, 893-94. The Order then sets
20
out and rejects each of the City’s suggested alternative “interpretations” of the
Approval Criteria. Respecting LUC § 22.2.5.A., the Order says in part:
The Court disagrees with the City that it is the intent of the LUC, in
particular section 10, is (sic) to not have off-premise signs. Although
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, including the prohibition of off-premise signs, if it meets the
standards outlined in Section 22. 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 reasonabl e, the LUC language does
not expressly contradict this interpretation, and it aligns with the
purposes of reducing clutter.
CF, p 891. Respecting LUC § 22.2.5.B., the Order says in part:
The Court finds that the Board’s interpretation of StreetMedia as a
property owner under LUC § 22.2.5.B had a reasonable basis because
StreetMedia owns the sign and the sign is on the land. * * * LUC section
22.2.5 is ultimately about allowing sign deviations and it makes sense
that the sign owner is a property owner regardless of whether the sign
owner also owns the land the sign is built on.
CF, pp 893-94. Respecting LUC § 22.2.5.C., the Order says in part:
. . . StreetMedia provided evidence to the Board that the sign would not
be perceptibly more prominent than other signs in the area that follow
the regulations. The small business reasoning by the Board goes toward
the fact that the sign is an off-premise sign does not result in a
competitive advantage over other businesses in the area following the
regulations, and additionally many small businesses will have the
opportunity to advertise through the sign and gain potential customers
on the highway from the off-premise advertising.
CF, pp 895-96. Whether the City believes the interpretation the District Court
affirmed was “appropriate” or not is of no legal significance. The District Court
21
applied the correct standard of review. The City’s “mere disagreement” with the
District Court (and the BOCC) “is not a sufficient showing of abuse of discretion.”
Bristol, 352 P.2d at 786. The Order must be affirmed.
The City’s second argument in its first claim of error is based on the assertion
that, “the only statement contained in the Record concerning the purposes and
standards of the LUC . . . is what County Staff provided . . . .” Opening Brief at 23.
The City’s assertion is false. LUC § 10.1, which sets out the legislatively adopted
purposes of the Sign Code in plain language, is hard to miss on this record. CF, pp
37, 80, 159, 280, 284, 291, 299-300, 467. It is also competent evidence that supports
the BOCC decision.
In the Application, StreetMedia advised the BOCC to disregard requests to
apply ad hoc purposes and standards:
Among other things, in the application of a “prior restraint,” the County
cannot create purposes or standards on-the-fly. Instead, criteria for
decision-making must be clearly articulated in the County’s adopted
Code.
CF, p 276 (emphasis added). StreetMedia’s Hearing Testimony also addressed the
issue:
Decision-making criteria cannot be created and applied on a case-by-
case basis. Personal bias and preferences are not adopted standards.
* * *
22
There is no statement anywhere in [the LUC] about intent to exclude
off-premises signs or to be consistent with Municipal Codes. That’s just
made up. And that can’t be applied as a standard. For one reason, it’s
unconstitutional. And for two, it’s not a standard.
CF, pp 392-93. The District Court correctly held that the BOCC’s interpretation of
its LUC was “reasonable” and supported by competent evidence. The City admits
that “the Board has the authority to interpret the LUC in an appeal con trary to County
Staff . . . .” Opening Brief at 23. The BOCC did not abuse its discretion when it
disagreed with its Staff and accepted StreetMedia’s testimony.
Similarly, the City’s assertion that, “In its Findings and Resolution, the Board
offered neither a finding nor a description of its interpretation of what constitutes the
purposes and standards of the LUC related to signs” is also incorrect. Opening Brief
at 22. The Findings and Resolution quotes LUC § 10.1 in its entirety. CF, p 159.
Indeed, LUC § 10.1 is the only competent evidence on this record regarding the
affirmative purposes of the Sign Code.5
The City’s third argument under its first claim of error is that the BOCC
misapplied LUC § 22.2.5.A. by considering StreetMedia’s removal of five other
signs from the County as an appropriate way to reduce sign clutter. In addressing
5 There is also no legal support for the idea that County Staff can unilaterally inject
purposes into a code that are not in the code’s text. As such, the County Staff’s
attempts to do so cannot constitute competent evidence.
23
this argument, this Court’s role is to identify competent evidence that supports the
BOCC’s decision. If there is “any evidence” in the record to support the quasi-
judicial decision, this Court must affirm. The removal of eight older sign faces from
the County (completed almost a year ago) was only a fraction of the competent
evidence that StreetMedia provided to demonstrate compliance with LUC §
22.2.5.A.
The District Court found that the record contains competent evidence that the
new lighting technology, the coexistence of the Harmony Sign with wildlife, the
empirical study regarding safety, and the fact that granting the Sign Appeal would
actually promote safety, all advanced the purposes set out in LUC § 10.1 . CF, pp
891-892. As a matter of law, any one of those things would be enough to affirm the
BOCC’s conclusions regarding StreetMedia’s compliance with LUC § 22.2.5.A. As
such, the City cannot prevail by way of its argument about the old signs.
The City’s fourth and final argument under its first claim of error is that the
BOCC misapplied LUC § 22.2.5.B. because, while StreetMedia owns its sign, it is
a lessee of State Land Board (which owns the underlying real estate). The District
Court properly deferred to the BOCC’s interpretation of its own LUC, and agreed
that on this record, StreetMedia demonstrated that it was a “property owner” as that
24
phrase is used in LUC § 22.2.5.B., and that the BOCC’s interpretation of LUC §
22.2.5.B. was “reasonable.” CF, pp 893-894.
The District Court held that “[t]he City’s interpretation of ‘property’ in LUC
§ 10.15 is overly narrow because it fails to account for the fact it states property
means ‘A lot, tract or parcel of land together with the buil dings or structures
thereon.’” CF, p 894. While the District Court provides a more detailed examination
of the issue, the heart of the matter is that because StreetMedia owns a “structure”
that will be installed on the State Land Board’s land, StreetMedia was a “property
owner” as contemplated by LUC § 22.2.5.B. According to the District Court, “LUC
section 22.2.5. is ultimately about allowing sign deviations and it makes sense that
the sign owner is a property owner regardless of whether the sign owner also owns
the land the sign is built on.” CF, p 894. The unanimous, reasonable interpretation
of the BOCC, affirmed by the District Court, must be upheld.
This Court should affirm the Order and deny the City’s appeal.
25
B. THE DISTRICT COURT CORRECTLY HELD THAT THE BOARD
OF COUNTY COMMISSIONERS WAS WITHIN ITS PROPER
DISCRETION WHEN IT APPLIED THE LAND USE CODE TO
STREETMEDIA’S SIGN APPEAL
1. Appellee’s position on standard of review
StreetMedia agrees that the City’s second claim of error of the District Court
is reviewed de novo. On de novo review in a C.R.C.P. 106(a)(4) proceeding, this
Court stands in the shoes of the District Court, where it reviews the record of the
BOCC’s decision for abuse of discretion. Langer, ¶ 13. StreetMedia submits the
City’s description of the standard of review does not adequately articulate its limited
scope as to the City’s second claim of error.
C.R.C.P. 106(a)(4) review is quite limited. Absent a “clear abuse of
discretion,” the BOCC’s decision may not be disturbed. Langer, ¶ 13. An “abuse of
discretion” occurs when a governmental body “applies an erroneous legal standard
or when no competent evidence in the record supports its ultimate decision.” Id.
Additionally, a quasi-judicial decision-maker’s reasonable interpretation of its
own standards “warrants deference by a reviewing court.” O’Dell, 920 P.2d at 52;
Lieb, 183 P.3d at 704. Here again, a “mere disagreement” with a ruling “is not a
sufficient showing of abuse of discretion.” Bristol, 352 P.2d at 786. The quasi-
26
judicial decision must stand unless the decision -maker “exceeded its jurisdiction or
abused its discretion, based on the evidence in the record.” C.R.C.P. 106(a)(4).6
When a Court in a C.R.C.P. 106(a)(4) proceeding reviews whether a quasi-
judicial decision is supported by competent record evidence, it simply verifies the
existence of that evidence. If the Court finds any competent evidence supporting the
decision, its work is done and the decision is affirmed. Mountain States, 759 P.2d
at 44. The Court does not put the evidence back on the scales and re-weigh it.
O’Dell, 920 P.2d at 50; Bentley, 741 P.2d at 1267-68. Contrary and superfluous
evidence are simply disregarded. See Bentley, 741 P.2d at 1268; Mountain States,
759 P.2d at 44.
County regulations are construed using canons of statutory interpretation. See
Sierra Club, 166 P.3d at 312. Among them: (1) courts must “give effect to the intent
of the legislative body,” looking to “the plain language of the ordinance”; (2)
regulatory “language should not be subjected to a strained or forced interpretation”;
and (3) if there is ambiguity, the agency’s “interpretation will be accepted if it has a
reasonable basis in law and is warranted by the record.” Id. “If courts can give effect
6 C.R.C.P. 106(a)(4) is in the nature of certiorari. See Higby v. Bd. of Cty. Comm’rs
of El Paso Cty., 689 P.2d 635, 637 (Colo. App. 1984). It is well-established that
“mere irregularities are not reviewed by means of the writ of certiorari.” Phillips
Cty. Ct. v. People ex rel. Chicago, B. & Q.R. Co., 133 P. 752, 753 (Colo. 1913).
27
to the ordinary meaning of words used by the legislature, the ordinance should be
construed as written . . . .” Id.
Finally, “findings of fact may be express or implied,” and “the absence of
findings . . . is not fatal to a decision if there is evidence in the record” that supports
the decision. Burns, 820 P.2d at 1177. As such, the written resolution under review
by the Court does not have to be perfect, or even comprehensive. See id. In fact, a
written resolution is not even a prerequisite to C.R.C.P. 106(a)(4) review. See, e.g.,
McMurry, 967 P.2d at 634. All that matters is that the record supports the decision.
2. Appellee’s position on preservation of error
StreetMedia does not dispute that the City preserved its claim of error that the
BOCC misapplied the LUC.
3. The BOCC correctly applied the applicable law, and the District Court
correctly upheld the BOCC’s decision
The City’s second alleged error asks this Court to rewrite the Approval
Criteria so that it can argue that the BOCC misapplied them and thereby abused its
discretion. Courts do not rewrite laws. See, e.g., Winter v. Indus. Claim Appeals Off.,
2013 COA 126 ¶ 27 (“courts cannot rewrite statutory or administrative rules under
the guise of interpretation.”); Pro’s Closet, Inc. v. City of Boulder, 2019 COA 128 ¶
25 (“we must enforce the statutes as written . . . . Courts may not rewrite statutes . .
. .”); Bunch v. Indus. Claim Appeals Off. of State of Colorado, 148 P.3d 381, 385
28
(Colo. App. 2006) (“it is not our province to rewrite statutes .”). The District Court
correctly found that the BOCC correctly applied the correct law and did not abuse
its discretion. The District Court’s order should be upheld.
a. LUC § 22.2.5.A.
LUC § 22.2.5.A. requires the applicant for a Sign Appeal to demonstrate that
“Approval of the appeal is consistent with the purpose and intent of this code.” CF,
p 65. The District Court correctly found that the BOCC did not abuse its discretion
when it applied LUC § 22.2.5.A. In analyzing the BOCC’s interpretation and
application of LUC § 22.2.5.A. the District Court found that the BOCC considered
“the purpose and intent of section 10 based on the evidence presented that the sign
would promote aesthetic values by reducing visual clutter.” CF, p 891. The Court
went on to describe that evidence in detail.
The District Court did not re-weigh the evidence, yet it remarked that
“StreetMedia provided more than a preponderance of evidence” regarding
compliance with LUC § 22.2.5.A. CF, p 889. The Court found that the record
contains competent evidence that the purposes set out in LUC § 10.1 were advanced
by the removal of eight old sign faces, the new lighting technology used on the
Harmony Sign, the coexistence of the Harmony Sign with wildlife, the empirical
study regarding safety, and the fact that granting the Sign Appeal would actually
29
promote safety. CF, pp 891-892. That is just a sample of the record evidence in
support of the decision. The record also contains competent evidence that these
purposes are advance because granting the Sign Appeal protects constitutional rights
(a first-order priority for government in terms of public welfare); the Harmony Sign
will provide approximately $1,000,000 for public sch ools; the Harmony Sign creates
opportunities for local businesses and nonprofits; and the Harmony Sign allows for
the display of public service announcements and emergency alerts. CF, p 268. As a
matter of law, each of these, individually, requires this Court to affirm the BOCC’s
determination that StreetMedia complied with LUC § 22.2.5.A.
Reflecting its “mere disagreement” with the ruling, the City argues that the
District Court “inappropriately” found that LUC § 10.1 set out the purposes of the
Sign Code, and “ignored what the LUC actually says about off-premises signs and
billboards and what the sign code actually allows and prohibits.” Opening Brief at
27. Here, the City is not describing an “abuse of discretion.” As such, its appeal must
be denied.
The City complains, “The District Court failed to read the purposes and intent
language found in LUC Section 10.1 in the context of the prohibitions found in LUC
Section 10.5.” (emphasis added). The District Court read the LUC and considered
the record carefully. It just disagreed with the City. That is not an abuse of discretion.
30
In the words of the Order:
The Court disagrees with the City that it is the intent of the LUC, in
particular section 10, is to not have off -premise signs. Although 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,
including the prohibition of off-premise signs, if it meets the standards
outlined in Section 22.
CF, p 891.
The City concludes that the District Court’s interpretation of the purpose and
intent of the Sign Code is “directly contrary to the requirement to review the LUC
as a whole, to harmonize potentially conflicting provisions, and to give effect to
every word.” Opening Brief at 28. Yet on this record both the BOCC and the District
Court gave full effect to both the Sign Code and the Sign Appeal process by
recognizing their independent roles and harmonizing them.
By stark contrast, the City demands that this Court render the Sign Appeal
process inoperative, because that is what it takes to deliver the result the City wants.
The City reiterates its untenable position (rejected by the BOCC and the District
Court) that the “applicable standards” of the Sign Code are also its purposes. If
standards are also purposes, as the City demands, then the only way an applicant
could obtain relief from an “applicable standard” would be to demonstrate
compliance with it. That is an absurd construction. Courts are obligated to avoid
31
such constructions. See CLPF-Parkridge One, L.P. v. Harwell Invs., Inc., 105 P.3d
658, 661 (Colo. 2005) (“We do not adopt a construction that produces an illogical
or absurd result.”).
The record supports the BOCC’s application of LUC § 22.2.5.A. and the
District Court did not err in denying the City’s Complaint. This Court should affirm.
b. LUC § 22.2.5.B.
LUC § 22.2.5.B. requires the applicant for a Sign Appeal to demonstrate that
“There are extraordinary or exceptional circumstances on the site which would result
in a peculiar or undue hardship on the property owner if section 10 of t his code is
strictly enforced.” CF, p 65. As presented in more detail in Section A.3., supra, the
BOCC found, and the District Court affirmed, that StreetMedia was a “property
owner” for the purposes of LUC § 22.2.5.B. CF, pp 893 -894.
There is competent record evidence to support the BOCC decision as to LUC
§ 22.2.5.B. The record includes competent evidence that “elevation of Harmony
Road increases from West to East as the road crosses over Interstate 25,” such that
“views to the site are limited,” and that Harmony Road is “approximately 150 feet
wide” at the State Land Board property. CF, pp 277, 290. As such, unlike other sites
that do not have these circumstances, a sign installed on the State Land Board
property in strict compliance with LUC § 10 would not be visible to passersby. CF,
32
pp 375, 405, 410. StreetMedia testified to the BOCC about how those facts
demonstrated that its proposal met the applicable standard:
This site is located in a bowl, as the Commission pointed out, next to
an elevated roadway [and] an interstate. The adjacent street is a regional
thoroughfare. So the physical situation is the classic case, in fact, for a
variance, or an appeal.
CF, p 396. (emphasis added).
The Order acknowledges this competent evidence in support of the BOCC’s
decision, and properly applied the applicable standard of review. As such, the Order
should be affirmed.
In the face of this evidence and analysis, the City urges this Court to turn the
applicable standard of review on its head. Specifically, it asks the Court to look past
the record evidence in support of the BOCC’s decision and give weight to “findings
of County Staff” that the BOCC plainly did not accept. Opening Brief at 30. There
is no legal support for the City’s position.7 On C.R.C.P. 106(a)(4) review, Courts do
not give weight to contrary evidence. See Bentley, 741 P.2d at 1268; Mountain
States, 759 P.2d at 44.
7 The City also urges the Court to rewrite the LUC by accepting the County Staff’s
unsupportable statement that StreetMedia must show compliance with LUC §
22.2.5.B. by “compelling evidence.” Opening Brief at 8, 12. The “preponderance of
the evidence” standard as to LUC § 22.2.5.B. is set out unambiguously in the LUC.
CF, p 64.
33
The City also persists in asking this Court to re-weigh record evidence. The
City presents the County Staff testimony in the cloak of an unsupportable allegation
that “[n]othing in the Record and no findings of the Board offer anything contrary
to these specific findings of County Staff .” Opening Brief at 30. The District Court
had no trouble identifying and citing to competent record evidence to support the
BOCC decision as to LUC § 22.2.5.B. CF, pp 892-95.
In sum, the City has not described an abuse of discretion on this record. The
City argues that the BOCC misapplied LUC § 22.2.5.B. because, in part,
StreetMedia is a tenant of the State Land Board, which owns the property in fee
simple, and a million-dollar loss to Colorado’s public schools is not “ha rdship” on
the property owner. Opening Brief at 29-30. That loss (while actually a hardship) is
not material to the outcome of these proceedings because there is evidence in the
record that supports the BOCC’s decision as to LUC § 22.2.5.B. that has nothing to
do with funding Colorado’s public schools.
After presenting its technical arguments about “misapplication” that could not
change the outcome of this case in any event, the City argues that because the BOCC
did not apply LUC § 22.2.5.B. in the way the City wanted it to, the BOCC did not
“actually apply” the standard at all. Opening Brief at 31. That the City disagrees with
the BOCC and the District Court does not demonstrate a “clear abuse of discretion”
34
that justifies quashing the decision below. C.R.C.P. 106(a)(4) does not provide a
forum for resolving different points of view—that is what quasi-judicial hearings are
for.
The District Court properly found that the BOCC did not abuse its discretion
when it applied LUC § 22.2.5.B. Having found StreetMedia was a “property owner,”
the Court identified specific competent evidence in the record to support the BOCC’s
finding under LUC § 22.2.5.B. CF, pp 893-894. It therefore properly affirmed the
BOCC’s decision as to LUC § 22.2.5.B.
c. LUC § 22.2.5.C.
L.U.C. § 22.2.5.C. requires the applicant for a Sign Appeal to demonstrate
that, “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
this code.” The District Court correctly verified that the BOCC did not abuse its
discretion when it applied LUC § 22.2.5.C.
The City contends that “the Board’s Findings and Resolution fail to engage in
the required comparative analysis.” Opening Brief at 32. In fact, nothing in the law
requires the Findings and Resolution to satisfy the City’s demand. All that is required
is competent record evidence. See Burns, 820 P.2d at 1177 (“the absence of findings
. . . is not fatal to a decision if there is evidence in the record”).
35
To that point, the competent record evidence supports the decision as to LUC
§ 22.2.5.C. As the District Court noted, “With regard to an unfair advantage,
StreetMedia testified ‘others who have a 15 -foot tall sign on a level road are going
to be a foot taller than this one. So no matter how you look at your competitive
standard, this one would comply with it.’” CF, p 887. The record also shows: (1)
“Effective digital advertising helps businesses and institutions that are either
‘virtual’ or not located on high-volume roadways to overcome their locational
disadvantages”; (2) “[t]he County should not be involved in ‘picking winners and
losers’ by using its code to ensure the continuing advantages of regionally dominant
outdoor advertising companies”; and (3) the County’s long-standing ban on off-
premise content has been to the substantial competitive advantage of StreetMedia’s
“major competitor” that controls approximately 25 billboards in Larimer County.
CF, pp 268, 397.8
Whether a “comparative analysis” is required or not, the competent record
evidence described above supports the conclusion that a “comprehensive analysis”
8 To this latter point, StreetMedia advised the BOCC that LUC § 22.2.5.C. is fraught
with potential constitutional problems if applied to improperly favor some speakers
over others. See Reed v. Town of Gilbert, 576 U.S. 155, 157 (2015). StreetMedia
explained those problems to the BOCC in its Technical Report and during the public
hearing. CF, pp 268, 282-284, 290-291, 298, 305, 397-404.
36
was performed. Either way, the BOCC properly relied upon competent evidence that
supported its decision. It is not the role of the reviewing court to second-guess the
BOCC’s reasonable and supported determination as to competitive impacts.
The BOCC appropriately applied the standard set out in LUC § 22.2.5.C. to
the Sign Appeal. The BOCC’s decision was supported by competent evidence in the
record in all respects. As such, the BOCC correctly applied the corr ect law. There
was no clear abuse of discretion, and the Order should be upheld.
C. THE DISTRICT COURT CORRECTLY DECIDED THAT THE
BOARD OF COUNTY COMMISSIONERS’ APPROVAL OF THE SIGN
APPEAL WAS SUPPORTED BY COMPETENT RECORD EVIDENCE
1. Appellee’s position on standard of review
StreetMedia agrees that the City’s claimed error of the District Court is
reviewed de novo, in that this Court reviews “the decision of the governmental body
itself rather than the district court’s determination regarding the governmental
body’s decision.” O'Dell, 920 P.2d at 50. However, StreetMedia submits that the
City again does not clearly set out the limited scope o f this Court’s review.
In reviewing a quasi-judicial decision under C.R.C.P. 106(a)(4), the Court
does not weigh evidence. O’Dell, 920 P.2d at 50; Bentley, 741 P.2d at 1267-68. The
Court cannot “substitute its own judgment” for that of the quasi -judicial decision-
maker. O’Dell, 920 P.2d at 50. Instead, it reviews the record only for the presence
37
of competent evidence in support of the quasi -judicial decision, effectively
disregarding all other information. See Bentley, 741 P.2d at 1268; Mountain States,
759 P.2d at 44. If it finds any evidence that “a reasonable mind might accept as
adequate” to support the decision, the inquiry ends and the decision is affirmed.
Mountain States, 759 P.2d at 44 (internal quotations omitted)).
The “findings of fact may be express or implied,” and “the absence of findings
. . . is not fatal to a decision if there is evidence in the record” that supports the
decision. Burns, 820 P.2d at 1177. As such, the written resolution under review by
the Court does not have to be perfect, or even comprehensive. See id. In fact, a
written resolution is not even a prerequisite to C.R.C.P. 106(a)(4) review. See, e.g.,
McMurry, 967 P.2d at 634. All that matters is that competent evidence in the record
supports the decision of the BOCC to grant the Sign Appeal.
2. Appellee’s position on preservation of error
StreetMedia agrees that the City preserved its third claim of error.
3. The BOCC’s approval of the Sign Appeal was supported by competent
record evidence, and the District Court correctly upheld the BOCC’s decision
The record is full of competent evidence that supports the BOCC’s decision
and the District Court’s finding . In the City’s final argument, it implores the Court
to re-weigh the record evidence. Opening Brief at 36. (“the City asks this Court to
38
consider the detailed and thorough interpretation and application of the three
relevant criteria provided by the County Staff . . . .”).
The Application and Hearing Testimony lay it all out. Every single County
Commissioner accepted the evidence on each of the Approval Criteria as competent
and adequate. CF, p 431. The Hearing Testimony shows that the County
Commissioners have, as the law requires, “reasonable minds.” CF, pp 419-431. The
BOCC was well-prepared, thoughtful, and deliberative, and on this record, its
unanimous decision cannot be overturned.
As the District Court concluded, each Approval Criterion was satisfied with
competent evidence. CF, pp 892, 894, 895-896. Though the City complains that the
BOCC recited the “recent economic downturn” in its findings respecting the “second
and third criterion,” the District Court correctly noted that the economic downturn
and the aid the Harmony Sign may provide local businesses were not necessary in
evaluating the Sign Appeal’s compliance with LUC § 22.2.5.C. Opening Brief at
34; CF, pp 159-160, 895-896. Yet it does not matter whether it was proper for the
BOCC to include this factor in its order, because StreetMedia provided ample
competent evidence in the record to support the BOCC’s decision on alternative
grounds. CF, pp 268, 397.
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The City argues, “no Record evidence exists supporting any conclusion other
businesses complying with the LUC’s sign regulations would not suffer a
competitive disadvantage from the Billboard .” Opening Brief at 35. The City
continues, arguing that the benefits to “small businesses” are not record evidence.
Id. at 36. Again, the City is simply wrong about this record. The record includes
information that, among other things, “[e]ffective digital advertising helps
businesses and institutions that are either ‘virtual’ or not located on high-volume
roadways to overcome their locational disadvantages .” CF, p 268. It was entirely
reasonable for members of the BOCC to conclude that some of those bu sinesses are
“small businesses.”
The City’s demand that this Court re -weigh the record evidence must be
refused. There is ample record evidence to support the BOCC’s decision on each
and every element of the Sign Appeal on a variety of alternative grounds. It does not
matter whether the City accepted that evidence. The BOCC did. That is all that is
legally required.
V. CONCLUSION
Based on the foregoing arguments, authority, and circumstances, as well as
the ample competent evidence in the record to support the BOCC’s unanimous
decision on the Sign Appeal and the District Court’s order upholding the BOCC’s
40
decision, StreetMedia respectfully requests this Court affirm the District Court and
deny the City’s appeal.
The BOCC’s interpretation of its own standards was reasonable and due
deference. The BOCC did not abuse its discretion when it applied those standards.
As such, the BOCC’s interpretations and applications of its own law must be
affirmed.
Additionally, this record is solid. Competent evidence is present in the record
to support the BOCC’s decision as to each and every Approval Criterion. In all cases,
the evidence provides more than one reason to support the BOCC’s decision. The
City has not overcome that record, and is simply wrong when it argues that evidence
that was considered by the BOCC and acknowledged by the District Court “does not
exist.” Opening Brief at 34.
The BOCC determined that County Staff’s evaluation of the Approval
Criteria, and the merits of the Sign Appeal against those criteria, did not outweigh
the reasoning and evidence provided by StreetMedia. This Court stands in the shoes
of the District Court on review (not the BOCC) and it therefore must refuse the City’s
demand to re-weigh the evidence.
The City’s appeal lacks “substantial justification.” City of Aurora ex rel.
Utility Enterprise v. Colo. State Engineer, 105 P.3d 595, 618 (Colo. 2005) (An
41
action “lacks substantial justification if it is substantially frivolous . . . .”). A
“substantially frivolous” claim is presented when there is “no rational argument
based on the evidence or law in support of that claim . . . .” Id. at 620. The Opening
Brief had no rational argument on the evidence or law. Nothing in the Opening Brief
suggests that it was a “good faith attempt to establish a new theory of law in
Colorado.” See C.R.S. § 13-17-102(7). As such, StreetMedia respectfully requests
an award of attorneys’ fees pursuant to C.R.S. § 13-17-102.
StreetMedia respectfully requests that this Court: (1) AFFIRM the Order and
DENY the City’s appeal; (2) award StreetMedia its attorneys’ fees and costs; and
(3) award all other relief this Court deems just and proper.
Dated this 15th day of October, 2021.
FAIRFIELD AND WOODS, P.C.
s/ Todd G. Messenger
Todd G. Messenger
Amanda C. Jokerst
ATTORNEYS FOR DEFENDANT-
APPELLEE STREETMEDIAGROUP, LLC
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CERTIFICATE OF SERVICE
I hereby certify that on this 15th day of October, 2021, I filed the foregoing with
the Clerk of the Court using Colorado Courts E -Filing. I further certify that a copy of
the foregoing was sent via Colorado Courts E-Filing to the following:
Andrew D. Ringel, #24762
Hall & Evans, LLC
1001 Seventeenth St., Suite 300
Denver, CO 80202
Telephone: (303) 628-3300
Email: ringela@hallevans.com
John R. Duval, #10185
Deputy City Attorney
Claire Havelda, #36831
Assistant City Attorney
300 Laporte Ave.
P.O. Box 500
Fort Collins, CO 80522
Telephone: (970) 221-6652
Email: jduval@fcgov.com; chavelda@fcgov.com
William G. Ressue, #34110
Frank N. Haug, #41427
Larimer County Attorney’s Office
P.O. Box 1606
Fort Collins, CO 80522
Telephone (970) 498-7450
Email: ressuewg@co.larimer.co.us; haugfn@co.larimer.co.us
s/ Sharon Y. Meyer
Sharon Y. Meyer