HomeMy WebLinkAbout2021CA833 - City Of Fort Collins V. Board Of County Commissioners Of Larimer County, Et Al - 023 - Opinion 11.3.202221CA0833 Fort Collins v Larimer County 11-03-2022
COLORADO COURT OF APPEALS
Court of Appeals No. 21CA0833
Larimer County District Court No. 20CV30580
Honorable Daniel M. McDonald, Judge
City of Fort Collins, Colorado, a municipal corporation,
Plaintiff-Appellant,
v.
Board of County Commissioners of Larimer County, Colorado, and
StreetMediaGroup, LLC,
Defendants-Appellees.
JUDGMENT AFFIRMED
Division III
Opinion by JUDGE J. JONES
Welling and Schutz, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced November 3, 2022
Carrie M. Daggett, City Attorney, John R. Duval, Deputy City Attorney, Claire
Havelda, Assistant City Attorney, Fort Collins, Colorado; Hall & Evans LLC,
Andrew D. Ringel, Denver, Colorado, for Plaintiff-Appellant
William G. Ressue, County Attorney, David P. Ayraud, Assistant County
Attorney, Frank N. Haug, Assistant County Attorney, Fort Collins, Colorado, for
Defendant-Appellee Board of County Commissioners of Larimer County,
Colorado
Fairfield and Woods, P.C., Todd G. Messenger, Amanda Jokerst, Denver,
Colorado, for Defendant-Appellee StreetMediaGroup, LLC
DATE FILED: November 3, 2022
CASE NUMBER: 2021CA833
1
¶ 1 This case pits the City of Fort Collins (the City) against the
Larimer County Board of County Commissioners (the Board) and
StreetMediaGroup, LLC (StreetMedia). The City brought the case
under C.R.C.P. 106(a)(4) to challenge the Board’s decision
approving StreetMedia’s request to erect a billboard on property
within unincorporated Larimer County. The district court rejected
the City’s challenge. The City appeals. We affirm.
I. Background
¶ 2 Larimer County Land Use Code (LUC) section 10 regulates all
signs located in any of Larimer County’s zoning districts.1 Section
10.1 identifies the purpose of those regulations as follows:
The purpose of this section is to protect the
health, safety and welfare of the public; to
provide the public and property owners with
an opportunity for safe and effective
identification of uses and locations within the
county; and to avoid clutter and protect and
maintain the visual appearance and property
values of the agricultural, residential,
business, commercial and industrial areas of
the county.
1 Larimer County replaced its Land Use Code on March 31, 2021,
and replaced its sign code on June 21, 2021. We construe the
version of the Land Use Code applicable when the Board approved
the billboard.
2
¶ 3 LUC section 10.5 identifies several types of signs that are
prohibited in all of Larimer County’s zoning districts. In pertinent
part, it provides that the following signs are not allowed in any
zoning district: “B. Signs which 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. [and] . . . E. Billboards [and]
off-premises signs . . . .” LUC section 10.11 also contains the
following restrictions on signs in nonresidential areas:
The sign may not be larger than ninety square feet per
side.
The sign must be set back from the right-of-way at least
thirty-six feet.
The sign may not be higher than eighteen feet above
grade.
¶ 4 LUC section 22.2.1.A.3 authorizes the Board to hear and
decide appeals where “[a] person proposes to deviate from a
standard or requirement imposed by this code.” Under section
22.2.5, the Board may approve an appeal requesting an exemption
3
from section 10 if it finds that each of the following criteria has
been met:
A. Approval of the appeal is consistent with the
purpose and intent of this code;
B. There are extraordinary or exceptional
conditions on this site which would result in a
peculiar or undue hardship on the property
owner if section 10 of this code is strictly
enforced;
C. Approval of the appeal would not result in
an economic or marketing advantage over
other businesses which have signs which
comply with section 10 of this code.
¶ 5 StreetMedia leased 400 square feet of land owned by the State
Land Board of Commissioners (State Land Board) for the purpose of
erecting an electronic billboard. In return, the State Land Board
would receive approximately $1,000,000 over the term of the lease.
¶ 6 StreetMedia appealed to the Board under section 22.2.1.A.3
requesting a complete exemption from Larimer County’s prohibition
in section 10.5.E on billboards and off-premises signs. It also
requested exemptions from the other restrictions noted above;
specifically, a 6-second message change cycle, 240 square feet of
signage, a 30-foot setback, and a height of 30 feet above grade.
Following the presentation of extensive evidence and a public
4
hearing (which no one from the City attended), the Board granted
StreetMedia’s application. As noted, the district court rejected the
City’s subsequent Rule 106(a)(4) challenge to the Board’s decision.
II. Discussion
¶ 7 On appeal, the City contends that the district court erred by
affirming the Board’s decision approving StreetMedia’s application
because (1) the district court misinterpreted the LUC; (2) the district
court misapplied the LUC; and (3) no evidence supports the Board’s
decision and, therefore, the court should have concluded that the
Board abused its discretion. We first address, and reject,
StreetMedia’s argument that the case is moot. We then address
and reject each of the City’s contentions in turn.
A. Mootness
¶ 8 StreetMedia (but not the Board) asserts in a footnote in its
answer brief that this case is moot because (1) the City failed to
attempt to prevent StreetMedia from erecting the billboard during
the pendency of this appeal (by, say, seeking a stay or injunction)
and (2) Larimer County has since adopted a revised land use code.
The case on which StreetMedia relies for the first proposition,
Zoning Bd. of Adjustment v. DeVilbiss, 729 P.2d 353 (Colo. 1986), is
5
distinguishable in that it involved construction of a coal-loading
facility at a cost (in the early 1980s) of $7.7 million that employed
250 people — a much more substantial project than the single
billboard at issue in this case. Id. at 360 (“We limit our holding to
the particular facts of this case.”); see Save Cheyenne v. City of
Colorado Springs, 2018 COA 18, ¶¶ 8-10 (distinguishing DeVilbiss).
StreetMedia doesn’t cite any authority supporting the second
proposition, nor does it identify any changes in the code that would
render this case moot. See Woodbridge Condo. Ass’n v. Lo Viento
Blanco, LLC, 2020 COA 34, ¶ 44 (declining to address a conclusory
assertion unaccompanied by “any coherent, developed argument on
the point”), aff’d, 2021 CO 56. We therefore conclude that this case
isn’t moot.
B. The City’s Contentions
1. Standard of Review
¶ 9 We review de novo a district court’s ruling on a Rule 106(a)(4)
complaint. See Carney v. Civ. Serv. Comm’n, 30 P.3d 861, 863
(Colo. App. 2001). But we review the decision of the governmental
body being appealed, not the district court’s determination on
review. Bd. of Cnty. Comm’rs v. O’Dell, 920 P.2d 48, 50 (Colo.
6
1996). Accordingly, in reviewing a governmental body’s decision
under Rule 106(a)(4), we sit in the same position as the district
court. Ad Two, Inc. v. City & Cnty. of Denver, 9 P.3d 373, 376 (Colo.
2000).
¶ 10 We determine only whether the governmental body exceeded
its jurisdiction or abused its discretion. C.R.C.P. 106(a)(4); O’Dell,
920 P.2d at 50. The City doesn’t claim that the Board exceeded its
jurisdiction. Therefore, we won’t disturb the Board’s decision
absent a showing of a clear abuse of discretion. Stor-N-Lock
Partners #15, LLC v. City of Thornton, 2018 COA 65, ¶ 22. “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.” Langer v. Bd. of Comm’rs,
2020 CO 31, ¶ 13 (citing Stor-N-Lock Partners, ¶ 22). No competent
evidence means that the decision is “so devoid of evidentiary
support that it can only be explained as an arbitrary and capricious
exercise of authority.” Freedom Colo. Info., Inc. v. El Paso Cnty.
Sheriff’s Dep’t, 196 P.3d 892, 900 (Colo. 2008).
¶ 11 “The burden is on the party challenging [a governmental
body’s] action to overcome the presumption that the [governmental
7
body’s] acts were proper.” City & Cnty. of Denver v. Bd. of
Adjustment, 55 P.3d 252, 254 (Colo. App. 2002).
2. Analysis
a. Interpretation of the LUC
¶ 12 Initially, the City appears to contend that the “District Court”
didn’t determine whether the Board “appropriately interpreted the
LUC.” But we review the Board’s decision, not the district court’s.
O’Dell, 920 P.2d at 50.
¶ 13 The City also contends that the “District Court” misinterpreted
two parts — A and B — of section 22.2.5. But, again, we review the
Board’s decision, not the district court’s. O’Dell, 920 P.2d at 50.
We therefore address each of the City’s arguments as if they are
addressed to the Board’s decision. In doing so, although we review
the Board’s interpretation of the LUC de novo, we defer to the
Board’s interpretation if it is consistent with the drafters’ overall
intent. Alpenhof, LLC v. City of Ouray, 2013 COA 9, ¶ 10.2
2 Some case law holds that we don’t review a governmental body’s
interpretation of its laws de novo, but determine only whether the
governmental body’s interpretation has a reasonable basis. E.g.,
Covered Bridge, Inc. v. Town of Vail, 197 P.3d 281, 283 (Colo. App.
8
i. Section 22.2.5.A
¶ 14 As noted, section 22.2.5.A requires the Board to evaluate
whether approval of an appeal is consistent with the purpose and
intent of the LUC.
¶ 15 The City contends that the Board misinterpreted section
22.2.5.A because the Board’s decision doesn’t align with the
purpose and intent of the LUC. The City’s precise argument on this
point is difficult to pin down. In its briefs, it appears to argue
initially that the Board ignored section 10.5, which it contends
constitutes an absolute bar to off-premises billboards. In so
arguing, the City leans heavily on the County staff’s interpretation.
The City’s position fails for three reasons.
¶ 16 First, the Board — not the County staff — has the ultimate
authority to interpret the LUC. It is, after all, the Board that
approved the LUC and is accountable for how it is applied.
2008); Lieb v. Trimble, 183 P.3d 702, 704 (Colo. App. 2008). The
City’s arguments fail under even the de novo standard.
9
¶ 17 Second, section 10.1 — entitled “PURPOSE” — expressly sets
forth the purpose of the sign code. It is therefore section 10.5 that
must be read in light of section 10.1, not the other way around.3
¶ 18 Third, to the extent that the City argues that deviations from
the sign code aren’t permitted, the text of section 22 of the LUC —
relating to appeals seeking deviations from standards and
requirements of the code, including signage regulations — plainly
provides otherwise.
¶ 19 The City also objects to the Board’s supposed failure to
describe “its interpretation of what constitutes the purposes and
standards of the LUC related to signs” beyond relying on section
10.1. That objection is baseless. The Board wasn’t required to
thoroughly articulate its understanding of the purposes of the LUC,
expressly accounting for every consideration bearing on that issue.
The case on which the City relies in this regard — Langer — simply
3 To the extent the City argues — again relying on the County staff’s
interpretation — that the LUC’s sign provisions must be read
“consistent with the regulations adopted by the City,” this argument
also fails. In addition to the reasons discussed above and below,
this argument fails because there isn’t any language in the LUC
even hinting at such a limitation.
10
doesn’t go that far. Nor was the Board required to address every
contrary opinion presented to it during the sign appeal process or
make express findings about every detail bearing on its decision.
See Stor-N-Lock Partners, ¶ 27 (“Our task is not to evaluate the
thoroughness of the [governmental entity’s] subsidiary findings; our
task is to examine the record to ensure that some evidence exists to
support the [governmental entity’s] ultimate decision.” (citing
Sundance Hills Homeowners Ass’n v. Bd. of Cnty. Comm’rs, 188
Colo. 321, 328-29, 534 P.2d 1212, 1216 (1975))). It was enough
that — as the record shows — the Board considered the purposes of
the LUC and did so while acknowledging its history of denying
variances for billboards and the concerns of staff (including those
based on section 10.5).
¶ 20 Next, the City argues that the Board wasn’t allowed under
section 22.2.5.A to consider the removal of other billboards in its
analysis because, it says, the LUC doesn’t contain a provision
saying that the Board can do so. (Part of StreetMedia’s proposal
was that it would remove five existing signs if the variance was
granted.) But the LUC doesn’t contain a provision saying that the
Board can’t consider the effect of removing existing signs. Indeed,
11
section 10.1 provides that one of the County’s goals is to reduce
clutter. We can’t say that the Board’s application of that goal in
this context is unreasonable.
¶ 21 In sum, the Board’s interpretation of section 22.2.5.A wasn’t
an abuse of its discretion.
ii. Section 22.2.5.B
¶ 22 Section 22.2.5.B requires the Board to evaluate whether there
are extraordinary or exceptional conditions on the site that would
result in a peculiar or undue hardship to the property owner — a
term the LUC doesn’t define — if section 10 is strictly enforced.
¶ 23 The City contends that StreetMedia isn’t a property owner and
therefore the Board’s findings, which identify StreetMedia as a
property owner, misinterpret section 22.2.5.B. But it was within
the Board’s province to view whoever has the legal possessory right
to use the property as an owner for purposes of the sign provisions,
rather than to rely on a technical distinction between the owner and
a lessee. Cf. § 13-21-115(1), C.R.S. 2021 (defining a “landowner”
for purposes of premises liability as, in part, “a person in
possession of real property [or] a person legally responsible . . . for
12
the activities conducted or circumstances existing on real
property”).
¶ 24 And the Board’s reasoning also supports a conclusion of
hardship to the State Land Board. In reaching its decision, the
Board focused on the topography of the land and concluded that
the topography created a hardship for the landowner because the
land is below the adjacent roadway such that a sign adhering to the
requirements of section 10 couldn’t be seen from the road. Thus, if
the Board were to require strict compliance with the code, there
would be no practical ability to put a billboard on the property and
the State Land Board would lose the associated rental value of
$1,000,000. Therefore, the Board could have reasonably
determined that denying the requested variances would create a
hardship to the property owner, regardless of whether StreetMedia
— the lessee — is also considered a property owner.
b. Application of the LUC
¶ 25 Next, the City contends that the Board misapplied all three
parts of section 22.2.5. We disagree.
¶ 26 The City repeats its argument that section 22.2.5.A required
the Board to apply section 10.5 when assessing whether the
13
approval of StreetMedia’s appeal would be consistent with the LUC’s
purpose and intent. This argument fails for the reasons already
discussed.
¶ 27 As for section 22.2.5.B, the City argues that the Board erred
by focusing on the topography of the land and concluding that strict
enforcement of the code criterion would result in a peculiar or
undue hardship to the property owner because additional signs —
signs complying with the code — could be put on the property. But
the Board was presented with a wealth of information showing that
because of the area’s topography, a billboard complying with the
LUC wouldn’t be visible. And the Board wasn’t required to accept
the City’s position that different kinds of signs (at essentially
ground level) would be an acceptable substitute. Like so many of
the City’s arguments, this argument asks us to reweigh the
evidence and reject the Board’s reasonable application of its own
code. That isn’t our role.
¶ 28 The City also argues that the Board’s findings fail to include
any comparative analysis of the proposed billboard with “other”
unspecified options. Again, however, the law doesn’t require that
level of detail in a governmental body’s findings. Nor does the text
14
of section 22.2.5.B contain the comparative analysis requirement
urged by the City.
¶ 29 Next, the City argues that the Board erred because it didn’t
analyze whether StreetMedia’s sign would give it an economic
advantage over other businesses’ signs that comply with the code,
as required under section 22.2.5.C. As to this issue, the Board
found that “[t]he appeal will not result in an unfair business
advantage as the sign will permit a variety of non-profit and
business advertisement in a location that is highly visible to the
travelling public.” The Board discussed how the billboard would
increase competition and help level the playing field, in part by
enabling small businesses to advertise in an effective manner. And
one Board member observed that the billboard wouldn’t be
competing with any code-complying signs in the area. Other
evidence, as well, supports the Board’s conclusion on this factor,
and we reject the City’s invitation to essentially ignore it.
¶ 30 Though, as the City points out, County staff opined that only
strict enforcement of section 10.5 would allow for economic and
marketing equity, applying section 10.5 so strictly would mean
there would never be any sign variances: section 22.2.5 would be
15
meaningless as applied to sign restrictions even though it expressly
applies to sign regulations. Nothing in the code remotely supports
such a position.
¶ 31 Therefore, we conclude that the Board didn’t abuse its
discretion in how it applied section 22.2.5.
c. Competent Evidence Supports the Board’s Decision
¶ 32 Last, the City argues that the Board abused its discretion
because its findings aren’t supported by the evidence. Again, we
disagree.
¶ 33 As previously noted, we don’t reweigh the evidence. Rather,
we review the record to see whether there is some evidence that
supports the Board’s findings.
¶ 34 Both StreetMedia and the Board refer us to substantial
evidence supporting the Board’s decision. The City seems to
pretend that this evidence doesn’t exist, as it makes virtually no
effort to challenge it. Because competent evidence in the record
supports the Board’s decision, we must uphold it. See O’Dell, 920
P.2d at 50.
16
III. Attorney’s Fees
¶ 35 Asserting that the City’s appeal lacks substantial justification
and is frivolous, StreetMedia requests an award of its attorney fees
incurred on appeal under section 13-17-102, C.R.S. 2021. Though
the question is close, we conclude that the City’s appeal isn’t
substantially frivolous and therefore deny StreetMedia’s request.
IV. Conclusion
¶ 36 The judgment is affirmed.
JUDGE WELLING and JUDGE SCHUTZ concur.
NOTICE CONCERNING ISSUANCE OF THE MANDATE
Pursuant to C.A.R. 41(b), the mandate of the Court of Appeals may issue forty-three
days after entry of the judgment. In worker’s compensation and unemployment
insurance cases, the mandate of the Court of Appeals may issue thirty-one days after
entry of the judgment. Pursuant to C.A.R. 3.4(m), the mandate of the Court of Appeals
may issue twenty-nine days after the entry of the judgment in appeals from
proceedings in dependency or neglect.
Filing of a Petition for Rehearing, within the time permitted by C.A.R. 40, will stay the
mandate until the court has ruled on the petition. Filing a Petition for Writ of Certiorari
with the Supreme Court, within the time permitted by C.A.R. 52(b), will also stay the
mandate until the Supreme Court has ruled on the Petition.
BY THE COURT: Gilbert M. Román,
Chief Judge
DATED: January 6, 2022
Notice to self-represented parties: The Colorado Bar Association provides free
volunteer attorneys in a small number of appellate cases. If you are representing
yourself and meet the CBA low income qualifications, you may apply to the CBA to
see if your case may be chosen for a free lawyer. Self-represented parties who are
interested should visit the Appellate Pro Bono Program page at
http://www.cobar.org/appellate-pro-bono
STATE OF COLORADO
2 East 14th Avenue
Denver, CO 80203
(720) 625-5150
PAULINE BROCK
CLERK OF THE COURT