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Home My WebLink About2021CA833 - City Of Fort Collins V. Board Of County Commissioners Of Larimer County, Et Al - 002 - Notice Of Appeal Colorado 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: ______________________ DATE FILED: June 7, 2021 10:32 AM FILING ID: ECF2376941322 CASE NUMBER: 2021CA833 2 970-221-6652 Fax: 970-221-6327 jduval@fcgov.com chavelda@fcgov.com Attorneys for Plaintiff-Appellant NOTICE OF APPEAL FROM PLAINTIFF Plaintiff-Appellant the City of Fort Collins, Colorado, by and through its counsel, Andrew D. Ringel, Esq. of Hall & Evans, L.L.C., and John R. Duval, Esq., Deputy City Attorney, and Claire Havelda, Esq., Assistant City Attorney, of the Fort Collins City Attorney’s Office, hereby respectfully submits this Notice of Appeal from Plaintiff, as follows: I. TRIAL COURT INFORMATION COURT: District COUNTY: Larimer JUDGE’S NAME: The Honorable Daniel McDonald PARTIES INITIATING THE APPEAL: Plaintiff the City of Fort Collins, Colorado TRIAL COURT CASE NUMBER: 2020CV30580, Courtroom 4B II. NATURE OF CASE AND DISPOSITION IN TRIAL COURT A. NATURE OF CASE: Plaintiff the City of Fort Collins (“City”) filed a Complaint for Review Pursuant to C.R.C.P. 106(a)(4) on August 25, 2020, seeking review of Defendant Board of County Commissioners of Larimer County, Colorado’s (“Board” or “Larimer County”) quasi-judicial decision approving a sign appeal filed by Defendant StreetMediaGroup, LLC (“StreetMediaGroup”) to allow an electronic billboard to be constructed on property adjacent to property owned by the City. The City alleges the Board exceeded its jurisdiction and abused its discretion in approving the proposed billboard in multiple ways. 3 On July 28, 2020, the Board issued its Findings and Resolution Approving the StreetMediaGroup Sign Appeal (“Findings and Resolution”) on property located at 4414 East Harmony Road (the “Property”). The Property is located immediately adjacent to property owned by the City. The Property is zoned C —Commercial under the Larimer County Land Use Code (the “LUC”). The Property is a 6.46 acre parcel of land owned by the State Board of Land Commissioners (the “State Land Board”) and StreetMediaGroup entered into a lease with the State Land Board on September 4, 2018, to lease 400 square feet of land and 1,000 square feet of aerial space on the Property for the purpose of placing an outdoor advertising structure or billboard. LUC § 10 imposes regulations on all signs, including billboards, located in any of Larimer County’s zoning districts. On March 24, 2020, StreetMediaGroup filed with Larimer County an Appeal Request Form for an off-premises electronic billboard to be located on the Property (the “Billboard”). StreetMediaGroup’s proposal for its Billboard requested a complete exemption from Larimer County’s prohibition in LUC § 10.5.E on billboards and off-premises signs. StreetMediaGroup’s proposal for a Billboard requested a six -second change or dwell time for electronic messages much less than the one minute required by LUC § 10.5.B. The Property is located in a nonresidential zoning district. StreetMediaGroup’s proposal for its Billboard requested 240 square feet per sign face in excess of the maximum 90 square feet per side face allowed by the LUC. StreetMediaGroup’s proposal for its Billboard requested a height of 30 feet above grade in excess of the maximum height of 18 feet above grade allowed by the LUC. StreetMediaGroup’s proposal for its Billboard requested a setback of 30 feet from the right-of-way less than the 36-foot setback from the right-of-way required by the LUC. The City presented information to both Larimer County staff and the Board concerning the City’s opposition to the Billboard and its view it was inconsistent with the shared zoning goals of the City and Larimer County in this area which is subject to an Intergovernmental Agreement between the City and Larimer County, lies within the City’s Growth Management Area, and is adjacent to City -owned natural areas that would be detrimentally impacted by the Billboard. The LUC has a specific provision governing the Board’s consideration of an appeal from the sign regulations in LUC § 10. See LUC 22.2.5. Larimer County Staff reviewed the issue and determined StreetMediaGroup’s proposal for its 4 billboard did not meet any of the three required criteria under LUC § 22.2.5. Based on its analysis of the LUC and findings, Larimer County Staff recommended the Board deny StreetMediaGroup’s sign appeal. The Board considered StreetMediaGroup’s appeal in a noticed public hearing it conducted on June 1, 2020. Larimer County Staff’s analysis, findings, and recommendation were provided to the Board as part of the hearing. At the conclusion of the hearing, the Board voted to approve StreetMediaGroup’s proposal but did not issue a written decision at that time. On July 28, 2020, the Board issued its Findings and Resolution approving in all respects StreetMediaGroup’s appeal for the Billboard. The City filed its Complaint for Review Pursuant to C.R.C.P. 106(a)(4) on August 25, 2021, to challenge the Board’s decision as exceeding its jurisdiction and abusing its discretion. B. JUDGMENT OR ORDER BEING APPEALED: The District Court’s Order Denying Plaintiff, the City of Fort Collins’, Complaint for Review Pursuant to C.R.C.P. 106(a)(4) and Finding in Favor of Defendants Board of County Commissioners of Larimer County, Colorado and StreetMediaGroup, LLC dated April 20, 2021, is being appealed. C. WHETHER THE JUDGMENT OR ORDER RESOLVED ALL ISSUES BEFORE THE TRIAL COURT: Yes. D. WHETHER JUDGMENT WAS FINAL IN ACCORDANCE WITH C.R.C.P. 54(b): Not applicable. E. DATE OF JUDGMENT OR ORDER: April 20, 2021. F. DATE JUDGMENT WAS ENTERED AND MAILED TO COUNSEL: The Order dated April 20, 2021, was not mailed to counsel but was sent through the ICCES system and was received on April 20, 2021. G. WHETHER EXTENSION WAS GRANTED TO FILE MOTIONS FOR POST-TRIAL OR POST-JUDGMENT RELIEF: Not applicable. 5 H. WHETHER MOTIONS FOR POST-TRIAL OR POST- JUDGMENT RELIEF WERE FILED: No motion for post-trial or post-judgment relief was filed by any party. I. DATE OF DENIAL OF MOTION FOR POST-TRIAL RELIEF: Not applicable. J. WHETHER THERE WERE ANY EXTENSIONS GRANTED TO FILE ANY NOTICE OF APPEAL: No. III. ADVISORY LIST OF ISSUES TO BE RAISED ON APPEAL A. Did the District Court err in concluding the Board did not exceed its jurisdiction and abuse its discretion in granting the sign appeal? B. Did the District Court err in concluding the Board appropriately interpreted the Larimer County Land Use Code? C. Did the District Court err in determining the Board appropriately applied the Larimer County Land Use Code to the sign appeal concerning each of the exemptions from the Land Use Code granted by the Board for the Billboard? D. Did the Board abuse its discretion by misinterpreting and misapplying the Larimer County Land Use Code? E. Did the District Court err in concluding the Board’s decision to grant the sign appeal was supported by competent evidence in the record before the Board? F. Was the Board’s grant of the sign appeal for each of the exemptions from the Larimer County Land Use Code granted by the Board for the Billboard supported by competent evidence in the record before the Board? Additionally, Plaintiff-Appellant specifically reserves the right to raise any other applicable issue on appeal in its Opening Brief. See Giampapa v. American Fam. Mut. Ins. Co., 919 P.2d 838, 840 (Colo. App. 1995) (C.A.R. 3(d)(3) does not require an issue be included in the notice of appeal so long as the issue is properly preserved in the trial court), rev’d in part on other grounds by, 12 P.3d 839 (Colo. App. 2000), rev’d on other grounds by, 64 P.3d 230 (Colo. 2003); Casserly v. State 6 of Colorado, 844 P.2d 1275, 1282 (Colo. App. 1992) (“The issues raised in the notice of appeal are not binding on the parties or the court.”); Resolution Trust Corp. v. Parker, 824 P.2d 102, 104 (Colo. App. 1991) (“The issues which are listed in the notice of appeal are advisory only and are, thus, not determinative of those decided by this court.”); C.A.R. 3(d)(3). IV. TRANSCRIPT INFORMATION No transcript of any proceedings before the District Court is necessary for purposes of the issues to be raised on appeal by Plaintiff-Appellant. V. PREARGUMENT CONFERENCE No preargument conference with the Court of Appeals is requested. VI. IDENTIFICATION OF COUNSEL TO THE PARTIES 1. Counsel for the Plaintiff The City of Fort Collins: Andrew D. Ringel #24762 Hall & Evans, L.L.C. 1001 17th Street, Suite 300 Denver, Colorado 80202 Telephone: 303-628-3300 Fax: 303-628-3368 Email: ringela@hallevans.com John R. Duval #10185 Deputy City Attorney Claire Havelda #36831 Assistant City Attorney City Attorney’s Office 300 Laporte Avenue P.O. Box 500 Fort Collins, Colorado 80522 Telephone: 970-221-6652 Fax: 970-221-6327 7 Email: jduval@fcgov.com chavelda@fcgov.com 2. Counsel for Defendant Board of County Commissioners of Larimer County, Colorado: Jeannine S. Haag, #11995 William G. Ressue, #34110 Frank N. Haug, #41427 Larimer County Attorney’s Office P.O. Box 1606 Fort Collins, Colorado 80522 Telephone: 970-498-7450 Fax: 970-498-7430 Email: jeanninehaag@co.larimer.org wressue@co. larimer.org haughfn@co.larimer.org 3. Counsel for Defendant StreetMediaGroup, LLC: Todd G. Messenger, #38783 Amanda C. Jokerst, #47241 Fairfield and Woods, P.C. 1801 California Street, Suite 2600 Denver, Colorado 80202 Telephone: 303-830-2400 Fax: 303-830-1033 Email: tmessenger@fwlaw.com ajokerst@fwlaw.com VII. APPENDICES TO THIS NOTICE OF APPEAL 1. Order Denying Plaintiff, the City of Fort Collins’, Complaint for Review Pursuant to C.R.C.P. 106(a)(4) and Finding in Favor of Defendants Board of County Commissioners of Larimer County, Co lorado and StreetMediaGroup, LLC, dated April 20, 2021. 8 WHEREFORE, Plaintiff-Appellant The City of Fort Collins, Colorado respectfully submits this foregoing Notice of Appeal from Defendant. Dated this 7th day of June, 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 9 CERTIFICATE OF E-FILING AND SERVICE I hereby certify that on the 7th day of June, 2021, I E-Filed the foregoing with the Clerk of the Court via Colorado Courts E-Filing System 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