HomeMy WebLinkAbout2021CA833 - City Of Fort Collins V. Board Of County Commissioners Of Larimer County, Et Al - 017 - City's Reply BriefColorado Court of Appeals
2 East 14th Avenue
Denver, CO 80203
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;
STREETMEDIAGROUP, LLC
Andrew D. Ringel, Esq. (#24762)
Hall & Evans, L.L.C.
1001 - 17th Street, Ste. 300
Denver, CO 80202
303-628-3300
Fax: 303-628-3368
ringela@hallevans.com
John R. Duval, Esq. (#10185)
Deputy City Attorney
Claire Havelda, Esq. (#36831)
Assistant City Attorney
City Attorney’s Office
300 Laporte Avenue
P.O. Box 500
Fort Collins, Colorado 80522
▲COURT USE ONLY▲
______________________
Case Number:
2021CA833
______________________
DATE FILED: November 19, 2021 3:44 PM
FILING ID: ED2A6626DD9DF
CASE NUMBER: 2021CA833
ii
970-221-6652
Fax: 970-221-6327
jduval@fcgov.com
chavelda@fcgov.com
Attorneys for Plaintiff-Appellant
REPLY BRIEF
November 19, 2021
iii
CERTIFICATE OF COMPLIANCE
I hereby certify that this Reply Brief complies with all requirements of C.A.R.
28 and C.A.R. 32, including all formatting requirements set forth in these rules and
in the Court of Appeals’ Policy on Citation to the Record. Specifically, the
undersigned certifies that:
The Reply Brief complies with C.A.R. 28(g).
Choose one:
X It contains 5,429 words.
It does not exceed 18 pages
X 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.
Original Signature on File
/s/ Andrew D. Ringel
Andrew D. Ringel, Esq.
iv
TABLE OF CONTENTS
Page
CERTIFICATE OF COMPLAINCE ....................................................................... iii
TABLE OF CONTENTS .........................................................................................iv
TABLE OF AUTHORITIES ..................................................................................... v
I. SUMMARY OF THE ARGUMENT ............................................................. 1
II. ARGUMENT .................................................................................................. 3
A. THE DISTRICT COURT ERRED BY
NOT CONCLUDING THE BOARD ABUSED ITS
DISCRETION BY MISINTERPRETING THE LARIMER
COUNTY LAND USE COD .................................................................... 3
B. THE DISTRICT COURT ERRED BY
CONCLUDING THE BOARD DID NOT ABUSED ITS
DISCRETION BY MISAPPLYING THE LUC ..................................... 11
C. THE DISTRICT COURT ERRED IN FAILING TO
DETERMINE THE BOARD’S GRANT OF APPEAL WAS
NOT SUPPORTED BY COMPETENT EVIDENT IN
THE RECORD ........................................................................................ 16
D. THE BOARD’S AND STREETMEDIA’S ADDITIONAL
ARGUMENTS ARE WITHOUT MERIT .............................................. 19
III. CONCLUSION ............................................................................................. 22
v
TABLE OF AUTHORITIES
Cases
Bd. of Cnty. Comm’rs v. Conder,
927 P.2d 1339 (Colo. 1996) ................................................................................ 4
Bd. of Cnty. Comm’rs v. O'Dell,
920 P.2d 48 (Colo. 1996) .................................................................................. 18
Burns v. Bd. of Assessment Appeals,
820 P.2d 1175 (Colo. App. 1991) ..................................................................... 10
Hellas Constr., Inc. v. Rio Blanco Cnty.,
192 P.3d 501 (Colo. App. 2008) ....................................................................... 18
Langer v. Bd. of Comm’rs,
462 P.3d 59 (Colo. 2020) ................................................................................ 4, 5
Ross v. Fire & Police Pension Ass’n ,
713 P.2d 1304 (Colo. 1986) .............................................................................. 18
Shupe v. Boulder Cnty.,
230 P.3d 1269 (Colo. App. 2010) ............................................................... 5, 6, 7
Stor-N-Lock Partners # 15, L.L.C. v. City of Thornton,
488 P.3d 352 (Colo. App. 2018) ....................................................................... 18
Van Sickle v. Boyes,
797 P.2d 1267 (Colo. 1990) ................................................................................ 4
City of Colorado Springs v. Bd. of Cty. Comm’rs,
8 P.3d 1105 (Colo. App. 1994) ......................................................................... 18
Statutes and Other
Colo. Rev. Stat. § 13-17-102 ................................................................................. 22
Colo. App. R. 28 ...................................................................................................... 3
Colo. App. R. 28(g) .................................................................................................. 3
Colo. App. R. 32 ...................................................................................................... 3
Colo. R. Civ. P. 106(a)(4) ...................................................................... 1, 2, 3, 6, 12
I. SUMMARY OF THE ARGUMENT
The City of Fort Collins (“City”) argued in its Opening Brief (“OB”) reversal
of the Board of County Commissioners of Larimer County’s (“Board”) decision was
required based on the Board’s failure to appropriately interpret and apply its Land
Use Code (“LUC”) to StreetMediaGroup, LLC’s (“StreetMedia”) appeal to allow
construction of an electronic billboard on property adjacent to City property.
The Board and StreetMedia both filed Answer Briefs (“Board AB” and “SM
AB”). Both the Board and StreetMedia fail meaningfully to engage the City’s
arguments on appeal. Instead, both spend considerable effort mischaracterizing the
City’s actual arguments to obfuscate the Board’s errors. Moreover, the Board and
StreetMedia heavily rely on the deferential standard of review for C.R.C.P. 106(a)(4)
decisions, the notion of providing deference to the Board as the body charged with
interpreting the LUC, and broad suggestions the record before the Board was
extensive and therefore there must be competent evidence supporting the Board’s
determination.
However, in reviewing this appeal, this Court must focus not on the general
bromides offered by the Board and StreetMedia, but instead actually engage with
the City’s specific arguments. Doing so demonstrates the Board’s decision cannot
2
be sustained even under the deferential standard of review for C.R.C.P. 106(a)(4)
actions.
Specifically, the Board erred in three ways. First, the Board misinterpreted
the LUC. The Board’s interpretation of LUC Section 22.2.5.A and the intent and
purpose of the sign code ignored the clear, unambiguous language of specific
provisions of LUC Section 10.5.E prohibiting billboards and off-premises signs.
The Board’s failure to analyze whether the sign code allowed consideration of
removal of other billboards as part of the appeal was also error. Further, the plain
language of LUC Section 22.2.5.B requires the hardship justifying the appeal to be
a hardship that impacts the property owner and StreetMedia does not own the
property. Not only did the Board never actually interpret this LUC sign code
provision, but the Board applied it to StreetMedia with nothing in the LUC justifying
doing so.
Second, the Board misapplied the three criteria of LUC Section 22.2.5. The
Board’s misapplication of the intent and purpose of the sign code and its
consideration of the alleged hardship on StreetMedia’s ability to effectively
advertise followed from the Board’s legally incorrect interpretations of the
applicable sign code provisions. Additionally, the Board misapplied LUC Section
22.2.5.C by failing to follow the required comparative analysis and neglecting to
3
consider the difference in economic impact on businesses following the sign code
from allowing a non-conforming billboard. No comparative analysis was made in
the Board’s Findings and Resolution.
Third, and finally, the Board’s decision is not supported by competent
evidence in the record. Once the Board failed to properly interpret and correctly
apply the appeal criteria found in LUC Section 22.2.5, the lack of competent
evidence supporting its decision becomes clear. Both the Board and StreetMedia
incorrectly rely on evidence in the record unrelated to a correct legal interpretation
and application of LUC Section 22.2.5. Unless there is competent evidence
supporting the Board’s determination based on the express LUC sign code criteria
and a correct interpretation and application of the LUC, the requirements of C.R.C.P.
106(a)(4) are not and cannot be satisfied.
II. ARGUMENT
A. THE DISTRICT COURT ERRED BY NOT CONCLUDING THE
BOARD ABUSED ITS DISCRETION BY MISINTERPRETING THE
LARIMER COUNTY LAND USE CODE
First, the Board challenges the City’s articulation of the standard of review
arguing the issue is whether the Board’s interpretation and application of the law
was reasonable, and suggests the City inappropriately analyzes the issue of whether
the Board misinterpreted the law and misapplied it separately. [Board AB, at 19-
4
20]. The Board is wrong. A reviewing court must review the agency’s legal
interpretation and an abuse of discretion can occur when the agency applies an
erroneous legal standard. Board of Cty. Comm’rs v. Conder, 927 P.2d 1339, 1343-
44 (Colo. 1996); Van Sickle v. Boyes, 797 P.2d 1267, 1274 (Colo. 1990). Moreover,
an important analytical distinction exists between whether the Board misinterpreted
the LUC and whether the Board misapplied it.1
The Colorado Supreme Court’s approach in Langer v. Bd. of Comm’rs, 462
P.3d 59 (Colo. 2020), is instructive. First, the Court set forth the applicable standard
of review explaining: “A governmental entity abuses its discretion only when it
applies an erroneous legal standard or when no competent evidence in the record
supports its ultimate decision.” Id. at 62. Second, the Court then set forth the
“Applicable Law” which was the Town of Estes Park’s Development Code. Id. at
62-63. Third, the Court analyzed the Board’s construction of the Code ultimately
concluding the Court “perceive[d] no error of law in the BOCC’s construction of the
pertinent Code provisions or in the analytical framework that it employed.” Id. at
64 (alteration added). Fourth, the Court then turned to “whether the BOCC abused
1 The Board’s Answer Brief does not separately argue about the Board’s
interpretation of the LUC and never directly addresses the City’s argument on this
point. Instead, the Board presents arguments only related to the Board’s application
of the LUC in this instance. [OB, at 20-26; Board AB, at 22-38]. The City addresses
these aspects of the Board’s argument in Section II.C. below.
5
its discretion in applying this framework to the facts of this case.” Id. at 64. Here,
the City’s approach does not differ from Langer.2
Importantly, however, the Board’s interpretation of the LUC is a legal
interpretation subject to review by the courts. This Court’s discussion of the issue
in Shupe v. Boulder Cty, 230 P.3d 1269 (Colo. App. 2010), captures the applicable
inquiry for this Court here:
In determining whether the board abused its discretion, the
reviewing court may consider whether the board misinterpreted or
misapplied the governing law.
Land use codes and ordinances are subject to the general canons
of statutory interpretation.
When construing a land use code, courts look first to the plain
language, being mindful of the principle that courts presume that the
governing body enacting the code meant what it clearly said. If the
code’s language is ambiguous, we give deference to the board’s
interpretation of the code it is charged with enforcing, and its
interpretation will stand if it has a reasonable basis in law and is
2 StreetMedia asserts the City relies on Langer inappropriately seeking to
require the District Court to “present its own interpretation” of the LUC. [SM AB,
at 18-19]. This misses the point of the City’s arguments and ignores guidance
articulated in cited authorities. Langer and Shupe require a reviewing court to
address the legal question whether the governing body correctly interpreted the law.
Langer’s analytical approach, followed by the City both before the District Court
and on appeal, is logical and straightforward. StreetMedia’s effort to
mischaracterize the City’s argument as “novel” or simply a criticism of the manner
the District Court structured its Order is wrong. Nowhere does StreetMedia explain
where exactly in its Order the District Court analyzed whether the Board correctly
interpreted the three criteria of LUC 22.2.5 as a matter of law. This fundamental
error needs to be rectified on appeal.
6
warranted by the record. However, if the board’s interpretation is
inconsistent with the governing relevant articles, then that
interpretation is not entitled to deference.
Id. at 1272 (citations and internal quotation marks omitted). Applicable law
therefore provides if the Board misinterpreted the LUC, its decision should be
reversed under C.R.C.P. 106(a)(4).
The City argued the Board’s reliance on the general provision of LUC Section
10.1 as outlining the purpose of the sign code was not an actual interpretation of
LUC Section 22.2.5.A. [See OB, at 22-23]. The City also argued the only
interpretation of Section 22.2.5.A in the record was the County Staff interpretation,
which conflicted with the Board’s decision, and which the Board never addressed or
made any finding about at all. The Board reiterates its reliance on LUC Section 10.1
but fails to address the City’s actual arguments. [See Board AB, at 23-24].
Similarly, the Board’s general reliance on the “avoid clutter” language of LUC
Section 10.1 also misses the point of the City’s argument. The City argued nothing
in Section 22.2.5.A allowed the Board to consider the removal of the other billboards
as part of its consideration of this criterion. Despite the City arguing “[n]either
County Staff, the Board, nor the District Court cite any provision of the LUC
permitting the Board to consider such an issue in evaluating and applying LUC
Section 22.2.5.A[]” [OB, at 24], the Board still never addresses the issue. [Board
7
AB, at 23-24]. A general statement in a sign code about avoiding clutter does not
mean the Board was permitted to consider the removal of other billboards in
analyzing StreetMedia’s appeal. Whether LUC Section 22.2.5.A allows
consideration of other billboards at other locations represents a question of code
interpretation and is something never addressed by the Board anywhere in its
Findings and Resolution. In fact, the Board’s Findings and Resolution does not even
make the removal of StreetMedia’s other signs a condition of the Board’s approval
of the appeal.
Similarly, StreetMedia also argues the Board’s interpretation of the LUC must
be deferred to as reasonable. [SM AB, at 19-20]. In so arguing, StreetMedia relies
on the general proposition a reasonable interpretation of a land use code by the body
charged with interpreting it should be followed. Importantly, however, StreetMedia
ignores two fundamental points. Initially, as Shupe makes clear, a reviewing court’s
first must look to the plain language of the code. Shupe, 230 P.3d at 1272. Here,
the District Court never analyzed whether the Board erred in interpreting LUC
Section 22.2.5.A when it failed to consider LUC Section 10.5 which explicitly
precludes both billboards and off-premises signs in analyzing the intent of the sign
code.3 Basic law holds the Board was required to interpret the intent of the LUC as
3 The language of LUC Section 10.5 is worth reiterating:
8
a whole, to harmonize potentially conflicting provisions, and to give effect to every
word. [OB, at 28 (citing cases)]. Here, the Board never interpreted Section 22.2.5.A
in light of LUC Section 10.5, the District Court never analyzed the impact of LUC
Section 10.5, and neither StreetMedia nor the Board answer the City’s argument on
this fundamental legal issue in their Answer Briefs. StreetMedia’s assertion the
LUC does not include an intent to exclude off-premises signs [SM AB, at 21-22]
simply ignores and contradicts LUC Section 10.5.E entirely. To argue LUC Section
10.1 provides the intent of the sign code without reference to the specific provision
of LUC Section 10.5.E is illogical, inappropriate and inconsistent with basic canons
of statutory interpretation.
The following signs are not allowed in any zoning district:
. . . .
B. Signs that contain any flashing, rotating, animated or
otherwise moving features. The appearance of electronic or
changeable message signs cannot change more frequently than once
every minute.
. . . .
E. Billboards, off-premises signs, except that a home
occupation and an accessory rural occupation may have a temporary,
off-premises directional sign as described in section 10.6.K.
[See LUC, Section 10.5, CF. 471 (emphases added)].
9
Second, the Board’s answer to the City’s argument LUC Section 22.2.5.B
mandates the Board evaluate whether there are extraordinary or exceptional
conditions on the site which would result in a peculiar or undue hardship to the
property owner if LUC Section 10 is strictly enforced is to mischaracterize the City’s
position as “overly literal and unreasonable.” [See Board AB, at 33]. In so arguing,
the Board ignores the reality nothing in the Board’s Findings or Resolution mentions
the property owner or interprets StreetMedia as being the equivalent of the property
owner. The Board also ignores the actual language of LUC Section 22.2.5.B refers
to the property owner and not anyone else. This Court must evaluate the actual
Findings and Resolution of the Board to determine if the Board appropriately
interpreted LUC Section 22.2.5.B and not simply allow the Board to make
arguments in this litigation not supported by anything actually contained in the
Findings and Resolution.
In turn, StreetMedia suggests the District Court was correct in interpreting
StreetMedia’s lease interest as making it the equivalent of a property owner within
the meaning of LUC Section 22.2.5.B. StreetMedia also contends the Board’s
interpretation of LUC Section 22.2.5.B including StreetMedia as a property owner
was reasonable. [SM AB, at 23-24]. Notably absent from StreetMedia’s argument
is an actual citation to the record demonstrating the Board made any such
10
interpretation. Nothing in the Findings and Resolution, nothing at the hearing before
the Board, and nothing submitted to the Board offered any legal interpretation of
LUC Section 22.2.5.B as including StreetMedia as a property owner. Instead, the
record is clear everyone other than County Staff treated StreetMedia’s interests as
the equivalent of the property owner for interpreting and applying LUC Section
22.2.5.B. While one can potentially argue such a conclusion could ultimately be
appropriate, the Board never reached any such conclusion which constitutes error.
Further, absent an actual Board interpretation there is nothing for any court to defer
to.4 Because the implications for land use decisions throughout Colorado of
equating a lessee like StreetMedia to a property owner are profound, the Board
should be required to have actually made such a decision.
Further, the Board suggests the $1 Million paid by StreetMedia to the State
Land Trust represents a hardship to the property owner. [See Board AB, at 33-34].
Initially, no mention of this as a hardship exists anywhere in the Findings and
Resolution. [CF. 467-68]. Additionally, LUC Section 22.2.5.B requires analysis of
whether there are “extraordinary or exceptional conditions on the site” which would
4 StreetMedia suggests findings of fact by the Board may be either express or
implied based on Burns v. Bd. of Assessment Appeals of State of Colo., 820 P.2d
1175, 1177 (Colo. App. 1991). [SM, at 17 & 27]. While this is true, nothing in
Burns suggests an interpretation of law may also be implied which is what
StreetMedia seemingly argues.
11
result in a “peculiar or undue hardship.” Not only did the Board make no findings
related to the State Land Trust on this criterion, but a financial loss to the State Land
Board is not a condition of the site and is not a peculiar or undue hardship resulting
from a condition on the site. Indeed, under the Board’s logic, LUC Section 22.2.5.B
is satisfied whenever a property owner cannot earn revenue from a lease for an off-
premises billboard to a third-party. Nothing in LUC Section 22.2.5.B even remotely
supports such an interpretation.
B. THE DISTRICT COURT ERRED BY CONCLUDING THE BOARD DID
NOT ABUSE ITS DISCRETION IN MISAPPLYING THE LUC
First, the Board never addresses the City’s argument that both the District
Court and the Board erred in not evaluating whether approval of the appeal is
consistent with the purpose and intent of the LUC under the first criterion of LUC
Section 22.2.5.A. [See OB, at 27-28]. Instead, the Board myopically focuses on the
language of LUC Section 10.1 while entirely ignoring the language of LUC Section
10.5 cited by the City. [See Board AB, at 23-24]. The precedent relied upon by the
City explaining how the Board’s approach is wrong is dispositive. [See OB, at 27-
28]. Essentially, the Board hopes this Court, like the District Court, does not actually
closely analyze the clear and specific language of the LUC and instead simply relies
on general principles and giving deference to the Board. While the Board is entitled
to deference under appropriate circumstances, no such deference can legitimately be
12
afforded here because the Board completely ignored the specific and unambiguous
provisions of LUC Section 10.5 in its Findings and Resolution. The absence of any
analysis and any findings on these critical LUC provisions renders the Board’s entire
application of the first criterion of LUC Section 22.2.5.A legally erroneous.
Second, StreetMedia argues the purpose and intent of the LUC sign code is
limited to LUC Section 10.1 and further argue the City’s argument the Board needed
to consider LUC Section 10.5 and its prohibition on billboards and off-premises
signs inappropriately includes the “applicable standards” of the sign code as part
of its purposes. [SM AB, at 30]. StreetMedia’s argument – that the clear, express
standards of the LUC should not be the basis for review – turns review under Rule
106(a)(4) on its head. It also once again mischaracterizes the City’s argument. LUC
Section 10.5 unambiguously precludes both billboards and off-premises signs. The
reason this prohibition needs to inform any analysis of the intent and purpose of the
LUC sign code is because of its specificity. Both StreetMedia and the District Court
are correct the LUC sign code allows for appeals for variances of its terms. The City
agrees such an appeal can legitimately include whether a billboard or off-premises
sign can be constructed despite LUC Section 10.5.E. However, for such an appeal
to be successfully supported, the Board would have had to acknowledge the
existence of LUC Section 10.5.E and its prohibition on billboards and off-premises
13
signs, interpreted the purpose and intent of the LUC sign code accordingly, and then
made specific findings based on competent evidence in the record supporting its
decision to allow this Billboard in these specific circumstances. The City has never
argued the existence of LUC Section 10.5.E is dispositive of any appeal to allow the
Billboard. Rather, the City challenges the Board’s failure at any time during the
entire appeal process to confront the actual language of the LUC sign code and make
its decision based on a correct and reasoned application of the actual code language.
StreetMedia is incorrect the City offers an absurd construction or one impossible to
meet. [SM AB, at 30]. In reality, the City is only asking this Court to require the
Board to actually interpret the LUC based on basic principles of statutory
construction and reach its decision based on a correct interpretation and application
of the plain language of the LUC.
Third, the Board argues the topography of the site making an off-premises
electronic billboard not visible from the adjacent thoroughfares is sufficient to meet
the second criterion in LUC Section 22.2.5.B. [See Board AB, at 30-34]. The City
agrees StreetMedia’s off-premises electronic billboard would not be as effective for
advertising if LUC Section 10 was strictly enforced. However, the Board again
improperly focuses on the wrong issue. As County Staff explained, LUC Section
22.2.5.B relates to the actual property owner and their ability to advertise their own
14
businesses operating on the property. [CF. 168]. Nothing in the Board’s Findings
and Resolution addresses this actual issue. Fundamentally, StreetMedia, the Board
and the District Court all proceed from the flawed perspective an off-premises
electronic billboard should be allowed to be constructed on the property and
anything about the property lessening the advertising effectiveness of the billboard
meets the criterion of LUC Section 22.2.5.B. However, considering the LUC as a
whole requires the analysis start with off-premises billboards being prohibited as
LUC Section 10.5.E provides, and then analyze whether a strict application of LUC
Section 10 results in a peculiar or undue hardship on the property owner because of
extraordinary or exceptional conditions on the site. By effectively assuming
StreetMedia’s off-premises billboard was proper under the LUC, the Board engaged
in an incorrect analysis and thereby wrongly applied LUC Section 22.2.5.B.5
Fourth, StreetMedia accuses the City of inappropriately asking this Court to
give weight to the findings of County Staff. [SM AB, at 32]. The City actually cited
County Staff’s reasoning concerning LUC Section 22.2.5.B to demonstrate the
incongruity of the approach advanced by StreetMedia and the Board concerning the
application of Section 22.2.5.B to StreetMedia who is not the property owner. [OB,
5 Notably, the Board never addresses the City’s argument concerning the
limiting nature of the words “extraordinary,” “exceptional,” “peculiar,” and
“undue.” [See OB, at 31; Board AB, at 30-34].
15
at 30-31]. The Board exclusively focused on the impact of applying LUC Section
10 on StreetMedia not the State Land Trust which the City maintains is an incorrect
application of LUC Section 22.2.5.B. The County Staff’s approach, not necessarily
its conclusion, is what the Board should have done to correctly apply LUC Section
22.2.5.B.
Fifth, the Board never actually responds to the City’s argument it improperly
applied the third criterion of LUC Section 22.2.5.C. [See OB, at 31-33]. Rather, the
Board repeats the flawed analysis in the Findings and Resolution arguing the
billboard does not result in an unfair business advantage because it allows businesses
and non-profits to advertise on the Billboard and presumably to pay StreetMedia for
the privilege. [See Board AB, at 35-36]. The plain language of LUC Section
22.2.5.C demonstrates the fundamental error in the Board’s analysis. The third
criterion states: “Approval of the appeal will not result in an economic or marketing
advantage over other business which have signs which comply with section 10 of this
code.” [See LUC § 22.2.5.C, CF. 471 (emphasis added)]. This language necessarily
requires a comparison between the relative economic advantage and competitiveness
of the proposed Billboard with the signs of other business complying with the LUC.
Notably, despite the City raising this specific argument, the Board does not cite
anything demonstrating the Findings and Resolution or any statement made by any
16
Board member engaging in the required comparative analysis. Any examination of
the Board’s argument and citations to the record demonstrates this stark reality. [See
Board AB, at 35-37]. Again, the Board focuses on the wrong issue and incorrectly
applies LUC Section 22.2.5.C.
Sixth, StreetMedia responds to the City’s argument concerning the Board’s
misapplication of LUC Section 22.2.5.C by reframing the argument into one
concerning whether competent evidence exists in the record to support the Board’s
decision LUC Section 22.2.5.C was met. [SM AB, at 34-36]. In so doing,
StreetMedia again ignores the City’s argument and actual plain language of LUC
Section 22.2.5.C. StreetMedia in an aside suggests the answer is the same “whether
a ‘comparative analysis’ is required or not.” [SM AB, at 35]. The whole point of
the City’s argument is the plain language of LUC Section 22.2.5.C required a
comparative analysis. The Board’s failure to apply the plain language of LUC
22.2.5.C in this respect constitutes error.
C. THE DISTRICT COURT ERRED IN FAILING TO DETERMINE THE
BOARD’S GRANT OF THE APPEAL WAS NOT SUPPORTED BY
COMPETENT EVIDENCE IN THE RECORD
Fundamentally, the Board’s and StreetMedia’s presentations of the alleged
competent evidence supporting the Board’s decision are flawed because they rely on
the Board’s incorrect interpretation and incorrect application of the three criteria of
17
LUC Section 22.2.5. Ultimately, the Board’s and StreetMedia’s reliance on alleged
competent evidence is divorced from and irrelevant to a proper interpretation and
application of LUC Section 22.2.5 and proves nothing. This Court must examine
the Board’s alleged competent evidence with these threshold issues firmly in mind.
Unless the record evidence is linked and relevant to a correct interpretation and
application of LUC 22.2.5, it fails as insufficient.
First, the Board responds to the City’s argument no competent evidence exists
to support the Board’s reliance on a recent economic downturn and its perceived
hardship on small business and non-profit organizations by suggesting the City seeks
to require the Board to have “scientific data in the record,” “expert testimony” and
“detailed scientific analysis.” [See Board AB, at 37]. Further, the Board suggests
reliance on the personal opinions of two Board members based on their personal
knowledge and experience is sufficient competent evidence. [See Board AB, at 37].
However, the competent evidence standard requires more than unsupported personal
opinions of the quasi-judicial decision-makers themselves. The Board criticizes the
City for not citing any authority, yet the Board also cites no precedent supporting its
theory the personal opinions of two Commissioners an economic downturn
impacting small businesses and non-profits existed over the past several years in
Larimer County is supporting competent evidence. [See Board AB, at 37]. In terms
18
of authority, precedent applying the competent evidence standard rely on actual
evidence and not personal opinions. Compare Bd. of Cty. Comm’rs v. O’Dell, 920
P.2d 48, 51-52 (Colo. 1996) (examining letters submitted by the Department of
Wildlife, the Fire Protection District, the Soil Conservation District, and an adjoining
landowner); Ross v. Fire & Police Pension Assoc., 713 P.2d 1304, 1311 (Colo.
1986) (analyzing opinions from three thoracic surgeons concerning whether plaintiff
was occupationally disabled); Stor-N-Lock Partners #15, LLC v. City of Thornton,
488 P.3d 352, 357 (Colo. App. 2018) (evaluating testimony from quasi-judicial
hearing); City of Colorado Springs. v. Bd. of Cty. Comm’rs, 8 P.3d 1105, 1111
(Colo. App. 1994) (same); Hellas Constr., Inc. v. Rio Blanco Cty., 192 P.3d 501,
507 (Colo. App. 2008) (reversing based on a lack of competent evidence and closely
analyzing the actual evidence in the record in connection with the elements needed
to be established).6
Second, the City argued there was no competent evidence in the record
supporting the comparative analysis required by LUC Section 22.2.5.C. [OB, at 35-
6 StreetMedia attempts to support the Board’s decision by suggesting
StreetMedia’s general submissions concerning effective digital advertising helps
business who are not located on high-volume roadways and suggests the Board could
have reasonably inferred some of those businesses are small businesses. [SM AB,
at 39]. However, nothing StreetMedia provided to the Board discusses any recent
economic downturn in Larimer County and its specific impact on small businesses
or the comparative impact of those with compliant signs.
19
36]. The Board never even attempts to cite to any evidence in the record supporting
any comparative analysis between the relative economic impact on businesses
complying and not complying with the LUC sign code. [See Board AB]. The reason
for this omission is clear. The record contains no such evidence.
Third, instead of actually addressing the City’s specific arguments concerning
the lack of competent evidence supporting specific aspects of the Board’s
determinations, StreetMedia offers general arguments about the extent of the record
and how competent evidence generally supports the Board’s determinations. [SM
AB at 37-39]. StreetMedia’s arguments fail to address the City’s actual arguments.
Again, absent a link between a correct interpretation and application of the criteria
in LUC Section 22.2.5 and supporting evidence in the record, there cannot be
competent evidence on the actual issues the Board needed to decide. The quantity
of evidence is immaterial unless the evidence competently supports a proper
interpretation and application of the LUC sign code.
D. THE BOARD’S AND STREETMEDIA’S ADDITIONAL
ARGUMENTS ARE WITHOUT MERIT7
First, both the Board and StreetMedia accuse the City of asking this Court to
improperly reweigh the evidence. [See Board AB, at 12; SM AB, at 13]. They ask
7 Both the Board and StreetMedia raise additional arguments outside the
City’s arguments. Those additional arguments are addressed here.
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the Court to focus away from the actual arguments the City has made. The City
actually argues the Board improperly interpreted the applicable LUC sections,
incorrectly applied them, and when a correct interpretation and application of the
LUC is used, there is no competent evidence in the record to support the Board’s
disposition of the appeal. The analytical framework advanced by the City on appeal
does not require this Court to reweigh any evidence.
Second, the Board criticizes the City for analyzing the District Court’s Order
and suggesting how the District Court erred based on de novo review applying here.
[Board AB, at 15 & 19]. The City acknowledged this Court’s review of the Board’s
decision is de novo. [OB, at 20, 26 & 33]. The City raises issues concerning the
District Court’s incorrect legal analysis because the District Court largely adopted
the fundamentally flawed approach advanced by the Board and StreetMedia. In
short, both the Board and the District Court erred, and the City explores the errors
of both in this appeal.
Third, in a footnote, StreetMedia argues the City’s appeal is moot because the
Billboard has been built. [See SM AB, at 10 n. 4]. This issue was fully briefed
below, and the District Court denied StreetMedia’s mootness argument after closely
and carefully analyzing the precedent relied upon by StreetMedia. [CF. 711-17, 781-
96, 826-39 & 878-84]. The District Court’s analysis and conclusion were correct.
21
StreetMedia’s truncated presentation of this issue should not be considered as
sufficiently raising it for consideration by this Court.8
Fourth, StreetMedia categorically asserts County Staff submissions to the
Board and presentation at the quasi-judicial hearing cannot be considered in this
appeal. [SM AB, at 13]. Of course, StreetMedia cites no actual precedent for this
remarkable proposition. Here, StreetMedia fundamentally misses the reason the
City cites the County Staff’s perspective. County Staff comprehensively interpreted
and applied the actual language of the LUC in its recommendations and
presentations to the Board. The City presents County Staff’s interpretation and
application of the applicable criterion governing StreetMedia’s appeal to
demonstrate how the Board should have proceeded had it actually engaged with the
plain language of the three different criteria of LUC Section 22.2.5 and applied those
correctly interpreted criteria against the facts contained in the record before the
Board. Indeed, as noted above and in the Opening Brief, on many points at issue
8 If this Court believes mootness is fairly raised, the City requests the
opportunity to file a supplemental brief to address mootness. This Reply Brief must
address all the arguments raised by both the Board and StreetMedia in their Answer
Briefs. Allowing StreetMedia to raise mootness in an eleven-line footnote and
requiring the City to address the mootness argument in this Reply Brief is unfair and
inappropriate.
22
before the Board the only analysis in the record is that included in the County Staff’s
report and testimony.
Fifth, the Board and StreetMedia criticize the City for not attending the June
1, 2020, hearing. [Board AB, at 7; SM AB, at 2]. The City did not attend the
hearing because the City provided extensive written comments to Larimer County.
[CF. 251-61]. Many of the City’s concerns were reflected in the County Staff’s
analysis and recommended provided to the Board. [CF. 163-9].
Sixth, in its conclusion, StreetMedia brazenly requests attorneys’ fees and
costs pursuant to C.R.S. § 13-17-102. [SM AB, at 41]. Nothing about the City’s
appeal lacks substantial justification. StreetMedia’s mischaracterizations of the
City’s arguments do not make them frivolous. Even if this Court ultimately rejects
the City’s arguments, the City has made legitimate, reasoned arguments based on
applicable Colorado law as applied to these facts. Indeed, StreetMedia’s 41-page
Answer Brief demonstrates the seriousness of the City’s arguments. No basis exists
to award StreetMedia its attorneys’ fees and costs.
III. CONCLUSION
In conclusion, for the foregoing reasons, as well as based on the arguments
and authorities contained in the Opening Brief, Plaintiff-Appellant the City of Fort
Collins, Colorado respectfully requests this Court reverse the District Court, find and
23
declare the Board of County Commissioners of Larimer County, Colorado exceeded
its jurisdiction and abused its discretion in its Findings and Resolution approving the
Billboard, find and declare the Board’s Findings and Resolution approving the
Billboard are not supported by competent evidence contained in the Record before
the Board, find and declare the Board’s interpretation and application of the Larimer
County Land Use Code in the Findings and Resolution constitute the Board
exceeding its jurisdiction and abusing its discretion, or in the alternative reverse any
aspect of the Board’s Findings and Resolution this Court determines is appropriate
under the applicable legal standard, and for all other relief this Court deems just and
appropriate.
Dated this 19th day of November, 2021.
Respectfully submitted,
/s/ Andrew D. Ringel
Andrew D. Ringel, #24762
of HALL & EVANS, L.L.C.
ATTORNEYS FOR PLAINTIFF-
APPELLANT THE CITY OF FORT
COLLINS
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CERTIFICATE OF E-FILING AND SERVICE
I hereby certify that on the 19th day of November, 2021, I E-Filed the
foregoing with the Clerk of the Court via Colorado E-Filing and served a copy via
electronic service on the following individual via the following email addresses:
Jeannine S. Haag, Esq.
jeanninehaag@co.larimer.org
William G. Ressue, Esq.
wressue@co. larimer.org
Frank N. Haug, Esq.
haughfn@co.larimer.org
Todd G. Messenger, Esq.
tmessenger@fwlaw.com
Amanda C. Jokerst, Esq.
ajokerst@fwlaw.com
John R. Duval, Esq.
jduval@fcgov.com
Claire Havelda, Esq.
chavelda@fcgov.com
/s/ Nicole Marion