HomeMy WebLinkAbout2021CA833 - City Of Fort Collins V. Board Of County Commissioners Of Larimer County, Et Al - 009 - City's Opening 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: August 16, 2021 10:48 AM
FILING ID: 6F4DFDD3FA461
CASE NUMBER: 2021CA833
ii
970-221-6652
Fax: 970-221-6327
jduval@fcgov.com
chavelda@fcgov.com
Attorneys for Plaintiff-Appellant
OPENING BRIEF
August 16, 2021
iii
CERTIFICATE OF COMPLIANCE
I hereby certify that this Opening 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 Opening Brief complies with C.A.R. 28(g).
Choose one:
X It contains 8,893 words.
It does not exceed 30 pages
The Opening Brief complies with C.A.R. 28(a).
X For the party raising the issue:
It contains, under a separate heading placed before the discussion of
each issue, statements of the applicable standard of review with
citation to authority, whether the issue was preserved, and if preserved
the precise location in the record where the issue was raised and where
the court ruled.
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. STATEMENT OF THE CASE ...................................................................... 1
A. Nature of the Case ..................................................................................... 1
B. Factual Background .................................................................................. 2
C. Course of Proceedings and Disposition Below ...................................... 16
II. STATEMENT OF ISSUES PRESENTED FOR REVIEW ......................... 18
III. SUMMARY OF THE ARGUMENT ........................................................... 18
IV. ARGUMENT ................................................................................................ 20
A. THE DISTRICT COURT ERRED BY
NOT CONCLUDING THE BOARD ABUSED ITS
DISCRETION BY MISINTERPRETING THE LARIMER
COUNTY LAND USE COD .................................................................. 20
B. THE DISTRICT COURT ERRED BY
CONCLUDING THE BOARD DID NOT ABUSED ITS
DISCRETION BY MISAPPLYING THE LUC ..................................... 26
C. THE DISTRICT COURT ERRED IN FAILING TO
DETERMINE THE BOARD’S GRANT OF APPEAL WAS
NOT SUPPORTED BY COMPETENT EVIDENT IN
THE RECORD ........................................................................................ 33
V. CONCLUSION ............................................................................................. 36
v
Table of Authorities
Cases
Alward v. Golder,
148 P.3d 424 (Colo. App. 2006) ........................................................... 20, 26, 33
Bd. of Cnty. Comm’rs v. Conder,
927 P.2d 1339 (Colo. 1996) ........................................................................ 20, 26
Carousel Farms Metro. Dist. v. Woodcrest Homes, Inc.,
442 P.3d 402 (Colo. 2019) .......................................................................... 20, 26
Delong v. Trujillo,
25 P.3d 1194 (Colo. 2001) .......................................................................... 20, 26
E-470 Pub. Highway Auth. v. 455 Co.,
3 P.3d 18, 22-23 (Colo. 2000) ...................................................................... 20, 26
Hajek v. Bd. of Cnty. Comm’rs for Boulder Cnty.,
461 P.3d 665 (Colo. App. 2020) ....................................................................... 33
Langer v. Bd. of Comm’rs,
462 P.3d 59 (Colo. 2020) .................................................................................. 22
Moffat Coal Co. v. McFall,
186 P.2d 1021 (Colo. 1947) .............................................................................. 28
People v. Anderson,
465 P.3d 54 (Colo. App. 2016) ......................................................................... 33
Ross v. Fire & Police Pension Ass’n ,
713 P.2d 1304 (Colo. 1986) .............................................................................. 33
Roybal v. City & Cnty. of Denver ,
436 P.3d 604 (Colo. App. 2019) ................................................................. 21, 27
Silva v. Wilcox,
223 P.3d 127 (Colo. App. 2009) ....................................................................... 28
State v. Timley,
469 P.3d 54 (Kan. 2020) ....................................................................... 20, 21, 27
vi
Telluride Resort & Spa, L.P. v. Colo. Dep’t of Revenue ,
40 P.3d 1260 (Colo. 2002) ................................................................................ 28
Van Sickle v. Boyes,
797 P.2d 1267 (Colo. 1990) .................................................................. 20, 26, 33
Whitelaw v. Denver City Council,
405 P.3d 433 (Colo. App. 2017) ........................................................... 20, 26, 33
Other
Colo. App. R. 28 ...................................................................................................... 3
Colo. App. R. 28(a) .................................................................................................. 3
Colo. App. R. 28(g) .................................................................................................. 3
Colo. App. R. 28(k) .................................................................................... 20, 26, 33
Colo. App. R. 32 ...................................................................................................... 3
Colo. App. R. 106(a)(4) ................................................................................... 17, 21
Colo. R. Civ. P. 106(a)(4) ............................................................ 1, 2, 16, 20, 26, 33
I. STATEMENT OF THE CASE
A. Nature of the 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”) quasi-
judicial decision approving a sign appeal filed by Defendant StreetMediaGroup,
LLC (“StreetMedia”) to allow construction of an electronic billboard on property
adjacent to property the City owns.
The Board approved StreetMedia’s appeal based on the application of the
Larimer County Land Use Code (the “LUC”). LUC Section 10 imposes regulations
on all signs, including billboards, located in any of Larimer County’s zoning
districts. StreetMedia’s proposal requested a complete exemption from Larimer
County’s prohibition in LUC Section 10.5.E on billboards and off-premises signs.
StreetMedia’s proposal requested a six-second change or dwell time for electronic
messages much less than the one minute required by LUC Section 10.5.B. The
property is located in a nonresidential zoning district. StreetMedia’s proposal
requested 240 square feet per sign face in excess of the maximum 90 square feet per
side face the LUC allows. The proposal requested a height of 30 feet above grade
in excess of the maximum height of 18 feet above grade the LUC allows. The
2
proposal 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 LUC has a specific provision governing the Board’s consideration of an
appeal from the sign regulations in LUC Section 10. See LUC § 22.2.5. Larimer
County staff reviewed the issue and determined the proposal failed to meet any of
the three review criteria under LUC Section 22.2.5 and recommended the Board
deny the appeal. The Board held a hearing to consider the issue and ultimately issued
its Findings and Resolution approving StreetMedia’s appeal allowing the billboard
as proposed.
The City sued and the District Court reviewed the matter under C.R.C.P.
106(a)(4). The District Court concluded the Board did not abuse its discretion or
exceed its jurisdiction. The City appeals.
B. Factual Background
Section 10 of the LUC imposes regulations on all signs, including billboards,
located in any of Larimer County’s zoning districts. The LUC outlines the purpose
of Section 10 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.
3
[See LUC, § 10.1, CF. 471].1 Section 10.5 provides the following regarding
prohibited signs in any zoning district:
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, § 10.5, CF. 471 (emphases added)].
Section 10.11 provides the standards for all signs in nonresidential districts.
The applicable standards for freestanding signs in nonresidential districts allow a
maximum sign-area size of 90 feet per side, a maximum height of 18 feet above
grade, and a setback measured from the right-of-way of at least 36 feet. [See LUC
§§ 10.11.B.2 and 10.11.B.3, CF. 471].
1 The Board provided the LUC with a link to Larimer County’s website as
part of the certified record before the District Court. [CF. 471]. As a result,
references to the LUC are made to both section number and the record containing
the link before this Court.
4
Section 22 of the LUC governs proposals deviating “from a standard or
requirement imposed by [the LUC]” and are submitted and considered by the Board.
[See LUC, § 22.2.1.A.3, CF. 471]. The LUC has a specific provision governing the
Board’s consideration of an appeal from the sign regulations in LUC Section 10,
which provides:
To approve an appeal from the applicable requirements in section
10 of this code the county commissioners must consider the following
review criteria and find that each criterion has been met or determined
to be inapplicable:
A. Approval of the appeal is consistent with the purpose and
intent of this code;
B. 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 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.
[See LUC § 22.2.5, CF. 471 (emphases added)].
The Larimer County planning director has the authority to interpret the LUC
subject to an appeal to the Board. [See LUC, § 3.5, CF. 471]. Before the Board,
“[t]he appeal will be granted only if the applicant shows by a preponderance of the
evidence that granting the appeal is consistent with the intent and purpose of this
code.” [See LUC, § 22.2.2.B.6., CF. 471].
5
StreetMedia proposed erecting a billboard on property located at 4414 East
Harmony Road (“the Property”). [CF. 164]. The Property is a 6.46-acre parcel of
land owned by the State Land Board of Commissioners (“State Land Board”) who
leased to StreetMedia 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. [CF. 164-5].
The Property is located in the Fort Collins Growth Management Area (the
“GMA”). [CF. 165]. The Property is also immediately adjacent to property owned
by the City. [CF. 165]. The Property is zoned C—Commercial and is in a
nonresidential zoning district. [CF. 165].
On March 24, 2020, StreetMedia filed an Appeal Request Form for an off-
premises electronic billboard to be located on the Property seeking not to have to
follow several aspects of the LUC’s sign regulations. [CF. 172-236].2
On April 29, 2020, City Manager Darin Atteberry wrote Larimer County
Manager Linda Hoffman a letter concerning StreetMedia’s proposal. The letter was
submitted to the Board by County Staff. Mr. Atteberry’s letter to Ms. Hoffman
explained the Property’s location in the GMA, it being adjacent to a City natural
2 The Board previously denied an earlier appeal filed by StreetMediaGroup
for a different billboard in April 2019, on the Property. [CF. 174 & 378-79].
6
area, its inconsistency with the City’s standards for off-premises billboards, and the
electronic billboard’s potential impact on the ability of the public to enjoy natural
areas and wildlife. [CF. 251-261].
County Staff reviewed the appeal and concluded StreetMedia’s proposal for
its billboard did not meet the required criteria under LUC Section 22.2.5. [CF. 163-
9]. First, with respect to LUC Section 22.2.5.A, County Staff concluded the proposal
did not meet this criterion, stating:
According to Section 10.1 of the Land Use Code, the purposes of the
sign regulations 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.”
The intent of the regulations within Section 10 of the Land Use Code is
to not allow off-premises signs, to provide consistent regulation for the
allotment of commercial signage, and to have sign regulations
consistent with the regulations adopted by the City of Fort Collins and
the City of Loveland.
Larimer County’s sign regulations were deliberately written to be
consistent with the regulations adopted by the City of Fort Collins and
the City of Loveland to reduce the potential for nonconformities should
signs permitted in unincorporated Larimer County by annexed to one
of those cities.
Approval of the appeal would allow this property to have a billboard
when new billboards have been prohibited since June 15, 1992 and
would allow the billboard to be 30 feet tall when the maximum height
of a freestanding sign is 18 feet (1.7 times taller than allowed) with 240
7
square feet per sign face when a maximum size is 90 square feet per
sign face (2.7 times larger than allowed).
In the applicants’ project description, it is noted that removal of the five
billboards from other locations in the Fort Collins area will reduce
visual clutter. Staff notes that as nonconforming signs, the intent is for
the five billboards to be removed over time as their physical condition
deteriorates. This would ultimately result in the removal of the five
signs without being replaced by a permanent electronic message sign.
The City of Fort Collins provided comments (including in attachment
G) that indicate the proposal appeals conflict with their current sign
regulations. Their regulations do not allow new off-premises signage,
allow one message per minute on electronic sign displays, do not allow
electronic message center displays on pole signs, and limit pole signs
to 18 feet in height and 80 square feet per sign face.
The property is within the Harmony Gateway Area which is a subarea
of the Harmony Corridor Plan. According to the City’s comments, an
amendment to the City’s Harmony Corridor Plan is pending a second
reading with the Fort Collins City Council. The proposed amendment
would prohibit billboards and would also prohibit electronic message
center signs on properties within the Harmony Gateway.
The City of Fort Collins Natural Areas Department provided comments
expressing concern about the impact of light from the proper billboard
on wildlife in the adjacent Arapahoe Bend Natural Area and nearby
Eagle View Natural Area.
The Development Services Team’s assessment is that approval of the
appeal would not be consistent with the intent and purpose of the Land
Use Code.
The proposal does not comply with this criterion.
[CF. 166-7].
8
Second, with respect to LUC Section 22.2.5.B, County Staff concluded the
proposal did not meet this criterion, stating:
No sign permits have previously issued for a freestanding sign on the
property. There have been five permits issued for walls signs which
cumulatively are well under the overall sign allotment for the property.
If Section 10 of the Land Use Code is strictly enforced, the owners of
businesses located on the property would have the ability to obtain
permits for a freestanding sign along the property’s Harmony Road
frontage, a freestanding sign along the property’s I-25 frontage, and
permits could be obtained for additional wall signage. Each of the two
freestanding signs could be 18 feet tall with two 90-square foot sign
faces.
The strict enforcement of Section 10 would not allow for the
construction of a new billboard of any size, would not allow for a
freestanding sign (on-premises or off-premises) taller than 18 feet tall
or larger than 90 square feet per sign face and would not allow for an
electronic sign with a hold time between messages of less than 60
seconds.
Staff has not reviewed compelling evidence that there are extraordinary
or exceptional conditions on the site that would result in a peculiar or
undue hardship on the property owner if Section 10 of the Land Use
Code is strictly enforced.
Staff finds that the proposal does not comply with this criterion.
[CF. 168].
Third, with respect to LUC Section 22.2.5.C, County Staff concluded the
proposal did not meet this criterion, stating:
Approval of the appeal would allow this property to have a billboard
when new billboards are no longer permitted and would allow the
9
billboard to be 30 feet tall when the maximum height of a freestanding
sign is 18 feet (1.7 times taller than allowed) with 240 square feet per
sign face when a maximum size of a freestanding sign face is 90 square
feet (2.7 times larger than allowed). The sign elevation at sidewalk
level is approximately 16 feet, however the Larimer County Land Use
Code does not contain provisions for elevation-related compensation.
It would also allow the sign at a lesser setback than required by the
Code for smaller signs and would also a hold time of 6 second between
messages when a 60 second hold time is required. The Colorado
Department of Transportation’s minimum hold time between messages
is 4 seconds.
Approval of the appeal would provide an economic and marketing
advantage over businesses that comply with Section 10 of the Land Use
Code by allowing the following: increased sign height, increased sign
and copy size, presence of electronic message display, reduced copy
hold time, and placement within an area where off-premises signs are
otherwise prohibited.
Staff finds that the proposal does not comply with this criterion.
[CF. 168].
Based on their assessments, County Staff made the following findings
summarizing its conclusions about the proposal:
The Development Services Team finds that approval of the proposed
appeal is not consistent with the purpose and intent of the Land Use
Code, that there are not extraordinary circumstances on the site which
would result in an undue hardship on the property owner if Section 10
were strictly enforced, and approval of the appeal would result in an
economic or marketing advantage over other businesses which have
signs which comply with Section 10 of the Land Use Code.
[CF. 169]. Based on its analysis of the LUC and its findings, County Staff
recommended the Board deny the appeal. [CF. 169].
10
The Board considered StreetMedia’s appeal in a noticed public hearing it
conducted on June 1, 2020. [CF. 341-42 & 351-432]. County Staff’s analysis,
findings and recommendation were provided to the Board. [CF. 163-69]. County
Staff reiterated through testimony its recommendation to deny the appeal at the
hearing. [CF. 362-63]. County Staff noted new, off-premises signs have been
prohibited in unincorporated Larimer County since June 15, 1992. [CF. 354].
In analyzing the purpose of the sign regulations at the hearing under the first
appeal criterion, County Staff explained:
So, according to Section 10.1 of the Land Use Code, the purpose
of the sign regulations “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; 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.”
The intent of the Regulations is to not allow off-premises signs.
That’s been something that’s been explicit in the Code.
To provide consistent Regulations for the allotment of
commercial signage, hence the Regulations on 10.11 that say, okay, if
you’re a certain distance back, you get to be a certain height and a
certain size. But we cap it at 18-feet tall and 90 square feet in size.
And then, also to have Regulations that are consistent but not
necessarily identical to the Regulations adopted by the City of Fort
Collins or the City of Loveland; the idea behind that is these—most of
11
these commercial-signage situations are in the Growth Management
Areas.3
As you saw, this is an enclave. This, you know, will likely be
annexed to the City of Fort Collins at some point. And the idea is not
to create a nonconformity at some point. And the idea is to not create
a nonconformity that the City, then, has to administer or doesn’t want
in the first place.
So, approval of this appeal would allow the property to have a
billboard, when new billboards have been prohibited since June 15th of
1992. It would allow the billboard to be 30-feet tall, where the
maximum height is 18 feet. It would allow the sign faces to be 240
square feet per sign [face], where the maximum is 90 square feet.
. . . .
So the City of Fort Collins did provide comments that indicated
that the proposed appeals conflict with their current Sign Regulations.
Their Regulations do not allow new off-premises signs.
They allow one message per minute on electronic message
displays. They don’t allow electronic message displays on pole signs.
So only allow—they’re only allowed on monument or on wall signs.
And they limit pole signs to 18 feet in height and 80 square feet per sign
face.
This area’s also part of the Harmony Corridor Plan and a
subsection of that is the Harmony Gateway Area. The City of Fort
Collins has indicated that there’s an amendment to the Corridor Plan
that’s pending second reading of the City Council. And the proposed
Amendment would prohibit billboards and also prohibit electronic
message centers in the Harmony Gateway, which, again, this property
is a part of. So, the City of Fort Collins has indicated that this is both
3 The reason the property’s location in the Growth Management Area and its
consistency with the City’s sign regulations is important is because property in the
Growth Management Area may be annexed by the City. [CF. 374].
12
inconsistent with their current Regulations and their long-term plan for
the Corridor.
Again, the City of Fort Collins’ Natural Area Department
provided comments expressing concerns about the impact of wildlife
adjacent to—because this property is adjacent to Arapahoe Bend
Natural Area and also Eagle View Natural Area, which is a natural area
that’s not yet opened to the public, but it is proposed along Strauss
Cabin Road and Ketcher, so about a mile south of this property. So, the
Development Services Team assessment is that approval of the appeal
would not be consistent with the intended purpose of the Land Use
Code.
[CF. 357-59].
As to the second appeal criterion, County Staff informed the Board: “Staff has
not reviewed compelling evidence that there are extraordinary or exceptional
circumstances on the site that would result in a particular or undue hardship on the
Property Owner if Section 10 of the Land Use Code is strictly enforced.” [CF. 361].
County Staff explained this conclusion as follows:
So there are signs on the property right now. There are a number
of wall signs. There have been five Sign Permits that have been issued
over the years. I don’t know how many are still there.
But if Section 10 of the Land Use Code was strictly enforced,
Businessowners would have the opportunity to have another
additional—an additional freestanding sign adjacent to the I-25 right-
of-way.
They would have the additional ability to provide a second
freestanding sign adjacent to Harmony Road. Those signs would be
limited to 18-feet tall and 90 square feet, assuming they’re at least 36-
feet back.
13
And it would allow, because of the size of the building,
additional wall signage. So there are plenty of opportunities for
additional signage on this site in compliance with the current
Regulations.
[CF. 360].
Concerning the third appeal criterion, County Staff concluded this was also
not met, explaining:
So, approval of this appeal would provide an economic and
marketing advantage over businesses that comply with Section 10 of
the Land Use Code by allowing an increased sign height, increased sign
and copy size, placement in an area where off-premises signs are
otherwise prohibited, and a reduced hold time. So, Staff finds that the
proposal does not comply with that criteria either.
[CF. 362].
During the hearing, the following colloquy occurred between a Commissioner
and County Staff concerning the Intergovernmental Agreement between the City
and the County and the Growth Management Areas:
CHAIR PRO TEM KEFALAS: Thank you Michael. In terms
of the relationship between the County and the City of Fort Collins,
obviously we have an IGA, Intergovernmental Agreement, that pertains
to these Growth Management Areas.
And I think there’s supposed to be a level of cooperation and
coordination in terms of design standards and development standards.
What are the implications there? I don’t know if that’s something you
can speak to, Michael.
14
MR. WHITLEY: Well, we do like to cooperate with the City of
Fort Collins. And if they make a specific request, we like to
accommodate that as much as possible, especially if the request is not
compliant with our Regulations.
So if they had a standard that was less stringent than ours, but we
allowed something, then we would continue to allow it. However, if
there’s a request to deviate from a standard and the City of Fort Collins
weighs in on that, that is not binding on either Staff or the Board of
County Commissioners. But that’s something we weigh heavily in our
recommendation.
Now, if the City of Fort Collins had recommended approval of
this, you know, for whatever reason, I can’t guarantee what our
recommendation would be. But it’s much more likely that we would
have recommended approval had the City of Fort Collins said, okay,
this is consistent with our Regulations and we do not object.
[CF. 336-37].
At the conclusion of the June 1, 2020, public hearing, the Board voted to
approve StreetMedia’s proposal, but did not issue a written decision. [CF. 431]. On
July 28, 2020, the Board issued its Findings and Resolution approving the appeal.
[CF. 465-69]. The Board’s Findings and Resolution made the following findings
and reached the following conclusions related to how the appeal met the three criteria
of LUC 22.2.5:
13. The review criteria for appeals, found in Larimer County
Land Use Code Section 22.2.5, have been satisfied as follows:
a. Approval of the appeal will not subvert the purpose of the
standard or requirement.
15
According to Section 10.1 of the Land Use Code, the purpose of
the sign regulations 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 indication 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.”
The appeal is consistent with the purposes and standards because
it will remove clutter and protects and maintains the visual appearance
and property values of the area. Specifically, the sign is located in an
area with significant background lighting, and the sign will not
significantly affect that background lighting. The sign is also located
at an intersection of two high speed roadways, which diminished
concerns relating to the dwell time. The appeal is consistent with
implementation of the sign code because it removes clutter including
removal of approximately eight other signs which have been present for
approximately forty years. It will beautify roadways and give small
businesses an opportunity to communicate with customers. Further, the
SITELINE technology employed by the sign allows for directional
distribution of light so as to minimize interference and mitigate impacts
of a lighted sign.
b. There are extraordinary or exceptional conditions on the
site which would result in a peculiar or undue hardship on the property
owner if Section 10 of this Code is strictly enforced.
The Property is located at an elevation below the adjacent
roadways, making placement and view of a sign more difficult.
Further, the adjacent roadways are high-speed major roadways. The
topography of the site creates a hardship that can be mitigated by the
placement of the sign and the implementation of strategies of
directional lighting and dwell time as indicated in the application. The
placement of the sign as indicated in the appeal will increase its
viewability and make it safer for motorists to view. Additionally, the
recent economic downturn has created a hardship for many small
businesses and non-profit organizations, which can be mitigated in part
by the advertising opportunities on this sign.
16
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. The 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.
14. The Board of County Commissioners finds that approval
of the proposed appeal is consistent with the purpose and intent of the
Land Use Code, that there are extraordinary circumstances on the site
which would result in an undue hardship on the property owner if
Section 10 were strictly enforced, and 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 the Land Use Code.
[CF. 467-68].
C. Course of Proceedings and Disposition Below
The City filed its Complaint for Review Pursuant to C.R.C.P. 106(a)(4) on
August 25, 2020, along with a Motion for Certification of Record. [CF. 484 & 491-
93]. The District Court issued its Order Requiring Certification of Record and Order
for Briefing Schedule on September 1, 2020. [CF. 96-99].
The Board filed an answer to the Complaint on September 17, 2020. [CF.
104-11]. The Board filed the Certified Record on October 16, 2020. [CF. 152-53].
StreetMedia filed a Motion to Dismiss on September 22, 2020, arguing the
City lacked standing to challenge the Board’s approval on appeal and contending the
City filed the Complaint untimely. The City responded to the Motion to Dismiss on
17
October 23, 2020, and StreetMedia replied on October 30, 2020. [CF. 116-138, 473-
585, & 586-602]. The District Court denied the Motion to Dismiss on November
29, 2020. [CF. 603-11].
StreetMedia filed its answer and a cross claim against the Board on December
12, 2020. [CF. 613-27]. The Board moved to dismiss the cross claim arguing
StreetMedia lacked standing for its cross claim and the cross claim was moot. After
briefing, the District Court on February 26, 2021, issued its Order granting the
Board’s motion to dismiss StreetMedia’s cross claim. [CF. 638-660, 691-703, 704-
10 & 744-46].
The parties briefed the merits of the Rule 106(a)(4) claim. The City filed its
Opening Brief on January 22, 2021. [CF. 661-90]. The Board filed its Answer Brief
on February 26, 2021. [CF. 725-43]. StreetMedia filed its Answer Brief on March
2, 2021. [CF 748-74] The City filed its Reply Brief on March 23, 2021. [CF. 797-
-825].
On February 24, 2021, StreetMedia filed a second Motion to Dismiss arguing
the District Court should dismiss the Complaint as moot premised on the
construction and operation of the Billboard and the City’s failure to obtain a
preliminary injunction to prevent the construction of the Billboard pending the
lawsuit. [CF. 711-17]. After briefing, the District Court denied StreetMedia’s
18
second Motion to Dismiss on April 12, 2021. [CF. 781-96, 826-39 & 878-84].
Finally, on April 20, 2021, the District Court issued its Order denying the
City’s claims and concluding the Board’s approval of the appeal and allowance of
the Billboard was supported by competent evidence in the record and was not a
misinterpretation or misapplication of the applicable LUC provisions and, therefore,
the Board did not abuse its discretion in approving the Billboard. [CF. 885-96].
The City filed its Notice of Appeal on June 7, 2021.
II. STATEMENT OF THE ISSUES PRESENTED FOR REVIEW
1. Did the District Court err by not concluding the Board of County
Commissioners of Larimer County abused its discretion by
misinterpreting the Larimer County Land Use Code?
2. Did the District Court err by concluding the Board did not abuse its
discretion in misapplying the LUC?
3. Did the District Court err in failing to determine the Board’s grant of
the appeal was not supported by competent evidence in the record?
III. SUMMARY OF THE ARGUMENT
The District Court made several legal errors requiring reversal by this Court.
First, the District Court erred by not concluding the Board abused its discretion by
misinterpreting the LUC. The District Court failed to address the validity of the
Board’s interpretation of the LUC under applicable statutory interpretation
principles.
19
Second, the District Court erred by concluding the Board did not abuse its
discretion in misapplying the LUC. The three criteria the Board was required to
follow each have specific requirements. The District Court failed to appropriately
hold the Board to an application of those criteria.
Third, the District Court erred in finding the Board’s findings were supported
by competent evidence. Several of the Board’s findings are supported by nothing
more than the personal opinions of commissioners and speculation, and not actual
evidence contained in the Record. Also, the Board seemingly ignored the detailed
findings and recommendations of the County Staff charged with interpreting and
applying the LUC. The Board also failed to provide any alternative analysis,
rationale, or legitimate grounds supported by competent evidence in the Record
contradicting the comprehensive analysis, findings, and rationale of County Staff.
The Board’s interpretation and application of the LUC are therefore
inconsistent with the clear language of the LUC and are not supported by competent
evidence in the Record.
20
IV. ARGUMENT
A. THE DISTRICT COURT ERRED BY NOT CONCLUDING THE
BOARD ABUSED ITS DISCRETION BY MISINTERPRETING THE
LARIMER COUNTY LAND USE CODE
C.A.R. 28(k) Standard of Review and Preservation of Issue: This issue was
raised in the City’s Complaint, Opening Brief, and Reply Brief. [CF. 15-19, 677-
685 & 802-13]. This Court’s review of the District Court’s C.R.C.P. 106(a)(4)
decision is de novo because this Court “sits in the same position as the district court
when reviewing an agency’s decision under C.R.C.P. 106(a)(4)[.]” Whitelaw v.
Denver City Council, 405 P.3d 433, 437 (Colo. App. 2017); Alward v. Golder, 148
P.3d 424, 428 (Colo. App. 2006). The standard of review in a C.R.C.P. 106(a)(4)
proceeding determines whether the governmental body has exceeded its jurisdiction
or abused its discretion. Delong v. Trujillo, 25 P.3d 1194, 1197 (Colo. 2001).
Misconstruing or misapplying applicable law can be an abuse of discretion. 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). “A governmental entity abuses its
discretion when it applies an erroneous legal standard.” Langer v. Bd. of Comm’rs,
469 P.3d 59, 62 (Colo. App. 2020). This Court reviews the District Court’s legal
determinations de novo. Carousel Farms Metro. Dist. v. Woodcrest Homes, Inc.,
442 P.3d 402, 407 (Colo. 2019); E-470 Pub. Highway Auth. v. 455 Co., 3 P.3d 18,
21
22-23 (Colo. 2000). This Court, like the District Court, may review the correctness
of the Board’s construction and application of its Land Use Code. Langer, 469 P.3d
at 63; Roybal v. City & Cty. of Denver, 436 P.3d 604, 607-8 (Colo. App. 2019).
The District Court’s Order: The District Court recognized if the Board
misconstrued the LUC it could constitute an abuse of discretion and the District
Court’s responsibility to interpret the LUC as part of its Rule 106(a)(4) analysis.
[CF. 888]. However, the District Court did not present its own interpretation of the
LUC, but instead immediately proceeded to the next step of the analysis of deciding
whether the Board properly determined the Billboard was consistent with the LUC’s
appeal criteria. [CF 889-896].
The District Court Erred:
Initially, the District Court erred in not interpreting the three criteria of LUC
Section 22.2.5. and determining as a matter of law what they require. Despite the
City’s argument the Board misinterpreted the requirements of the LUC, the District
Court neglected to address this threshold legal issue and instead inappropriately
deferred to the Board’s determinations concerning the application of the three
criteria. However, the interpretation of the LUC and the application of the LUC
present distinct issues and required separate analysis by the District Court.
Precedent clearly establishes the distinct nature of these two inquires.
22
For example, in Langer, the Colorado Supreme Court initially determined
whether “the BOCC correctly construed the applicable Code provisions.” Langer,
462 P.3d at 63. It was only after the Court concluded the BOCC did not err in its
construction of the code provisions did the Court address whether the BOCC
correctly applied them. The two-steps in the analysis are set-forth in the following:
For these reasons, we perceive no error of law in the BOCC’s
construction of the pertinent Code provisions or in the analytical
framework that it employed. The question thus becomes whether the
BOCC abused its discretion in applying this framework to the facts of
this case.
Langer, 462 P.3d at 64. Here, the District Court inappropriately combined its
analysis without addressing and deciding the threshold legal question as to whether
the Board appropriately interpreted the LUC.
Further, the Board’s Findings and Resolution did not appropriately interpret
the LUC. LUC Section 22.2.5.A required the Board to evaluate whether approval
of the appeal is consistent with the purpose and intent of the LUC. [See LUC §
22.2.5.A CF. 471]. 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. Before the District Court, the Board offered
the general provision of LUC Section 10.1 as outlining the purpose of the sign code
and the District Court accepted this proposition, with no analysis, in its application
23
of this criterion. [CF. 890]. However, both the Board and the District Court ignored
the lack of any finding by the Board on this issue and the fact the only statement
contained in the Record concerning the purposes and standards of the LUC to apply
this criterion is what County Staff provided as the intent and purpose of Larimer
County’s sign regulations. In their written review provided to the Board, County
Staff stated:
The intent of the regulations within Section 10 of the Land Use Code is
to not allow off-premises signs, to provide consistent regulation for the
allotment of commercial signage, and to have sign regulations
consistent with the regulations adopted by the City of Fort Collins and
the City of Loveland.
Larimer County’s sign regulations were deliberately written to be
consistent with the regulations adopted by the City of Fort Collins and
the City of Loveland to reduce the potential for nonconformities should
signs permitted in unincorporated Larimer County be annexed to one
of those cities.
Approval of the appeal would allow this property to have a billboard
when new billboards have been prohibited since June 15, 1992 and
would allow the billboard to be 30 feet tall when the maximum height
of a freestanding sign is 18 feet (1.7 times taller than allowed) with 240
square feet per sign face when a maximum size is 90 square feet per
sign face (2.7 times larger than allowed).
[CF. 166-67]. County Staff reiterated the focus was on the property owner at the
hearing before the Board. [CF. 360-61]. While the Board has the authority to
interpret the LUC in an appeal contrary to County Staff pursuant to LUC Section
3.5, nothing in its Findings and Resolution offers any contrary interpretation of the
24
purpose of the LUC. Instead, the Board concluded the Billboard is consistent with
the purpose for the LUC while ignoring County Staff’s interpretation and the fact
prior to this Billboard no off-premises sign had been approved since 1992.
Moreover, the general purposes of LUC Section 10.1 applies to both on-premises
and off-premises signs so any reliance on it as defining its purposes for LUC Section
22.2.5.A does not answer the purpose of the LUC related to off-premises signs. Only
County Staff raised this purpose of the LUC anywhere in the Record. The Board
never did either generally or specifically in its Findings and Resolution.
Equally problematic is the failure of the District Court to analyze whether it
is appropriate under the LUC for the Board to consider the removal of the other
billboards in its analysis under LUC Section 22.2.5.A. The District Court accepted
the Board’s use of the removal of the other billboards as supporting this criterion
with no actual analysis by the Board or interpretation by the District Court of the
actual legal basis under the LUC for the Board to consider such an issue. [CF. 890-
92]. Neither 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. The District Court’s assumption such consideration is appropriate
is not the correct analysis. While the City can imagine a land use code being drafted
to allow the removal of other billboards to be considered, nothing in the LUC does
25
so, and nothing in the Record or the Board’s Findings and Resolution explains the
LUC basis for doing so here either.
Similarly, 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. [See LUC § 22.2.5.B, CF. 471]. Under this criterion, the focus is the
property owner. Nothing in the Board’s Findings or Resolution mentions the
property owner let alone explains how not allowing the Billboard detrimentally
impacts the property owner. [CF. 467-68]. Nowhere in the Record is any evidence
of any hardship on the State Land Board if the Billboard is not allowed. The District
Court found “the Board’s interpretation of StreetMedia as a property owner under
LUC Section 22.2.5.B had a reasonable basis because StreetMedia owns the sign
and the sign is on the land” and proceeds to interpret the LUC to justify the
conclusion it is appropriate to consider the impact on StreetMedia under LUC
Section 22.2.5.B. [CF. 893-95]. Again, conceivably, the Board could have
interpreted the LUC in the fashion the District Court did to allow consideration of
the impact on StreetMedia of denial of the proposed Billboard. However, it is
undisputed the Board never actually did so in its Findings and Resolution or
otherwise. In contrast, County Staff actually did interpret the meaning of the second
26
criterion and focused on the impact of denying the appeal on the property owner not
StreetMedia. [CF. 467-68]. The District Court erred in construing the LUC as the
Board argued before the District Court rather than evaluating whether the Board
actually interpreted the LUC in its Findings and Resolution. At a minimum, a
remand to the Board is required for the Board to interpret the meaning of LUC
Section 22.2.5.B and whether the term “property owner” properly includes the
impact on StreetMedia based on the utility of individuals being able to view the
Billboard because of the site’s geography and location.
B. THE DISTRICT COURT ERRED BY CONCLUDING THE BOARD DID
NOT ABUSE ITS DISCRETION IN MISAPPLYING THE LUC
C.A.R. 28(k) Standard of Review and Preservation of Issue: This issue was
raised in the City’s Complaint, Opening Brief, and Reply Brief. [CF. 15-19, 677-
685 & 802-13]. This Court’s review of the District Court’s C.R.C.P. 106(a)(4)
decision is de novo. Whitelaw, 405 P.3d at 437; Alward, 148 P.3d at 428. The
standard of review in a C.R.C.P. 106(a)(4) proceeding determines whether the
governmental body has exceeded its jurisdiction or abused its discretion. Delong,
25 P.3d at 1197. Misconstruing or misapplying applicable law can be an abuse of
discretion. Conder, 927 P.2d at 1344; Van Sickle, 797 P.2d at 1274. This Court
reviews the District Court’s legal determinations de novo. Carousel Farms, 442
P.3d at 407; 455 Co., 3 P.3d at 22-23. This Court, like the District Court, may
27
review the correctness of the Board’s construction and application of its Land Use
Code. Langer, 469 P.3d at 63; Roybal, 436 P.3d at 607-8.
The District Court’s Order:
The District Court determined the Board appropriately applied the three
criteria of LUC Section 22.2.5. [CF. 890-96].
The District Court Erred:
First, the District Court erred in concluding the Board appropriately applied
the first criterion of LUC Section 22.2.5.A requiring the Board to evaluate whether
approval of the appeal is consistent with the purpose and intent of the LUC. The
District Court inappropriately focused on the general purpose of LUC Section 10,
analyzing how the Billboard was purportedly consistent with that general purpose.
[CF. 890-92]. However, in so doing, the District Court ignored what the LUC
actually says about off-premises signs and billboards and what the sign code actually
allows and prohibits. Section 10.5 of the LUC provides the following regarding
prohibited signs in any zoning district:
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.
28
. . . .
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, § 10.5, CF. 471 (emphases added)]. The District Court never analyzed
the import of LUC Section 10.5 and never addressed the Board’s complete failure to
address it in its Findings and Resolution. 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. The District Court’s failure to do so 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. See Telluride
Resort & Spa, L.P. v. Colo. Dep’t of Revenue, 40 P.3d 1260, 1265 (Colo. 2002)
(“When construing statutes, we should give effect to each word and construe each
provision in harmony with the overall statutory design, whenever possible.”); Moffat
Coal Co. v. McFall, 186 P.2d 1021, 1021 (Colo. 1947) (“We cannot, under the guise
of harmonizing various sections of the statute or by employment of rules of
construction, ignore the provisions of legislative enactments which are clear and
unambiguous.”); Silva v. Wilcox, 223 P.3d 127, 136 (Colo. App. 2009) (“When
reviewing municipal ordinances, we apply the same rules of construction used for
interpreting statutes.”). The District Court erred in not applying these fundamental
29
interpretive rules to the LUC and requiring the Board to do so in its Findings and
Resolution. When LUC Sections 10.5.B and 10.5.E are considered, allowing this
off-premises sign and an electronic sign changing messages more frequently than
one minute are only consistent with the purpose and intent of the LUC sign code if
the Board explained in a manner supported by competent evidence in the Record
why the appeal should be granted when the LUC sign code clearly and
unambiguously prohibits all such signs. The Findings and Resolution offer no such
explanation and no competent evidence in the Record supports any such conclusion.
Second, the District Court also erred in its determination the Board
appropriately applied LUC Section 22.2.5.B. This criterion 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. [See LUC §
22.2.5.B, CF. 471]. Initially, as discussed above, the City’s position is the impact
on StreetMedia is irrelevant to the analysis. Moreover, the District Court’s
application of this criterion was also flawed. The District Court focused on the
topography of the site and the inability for an off-site billboard of this kind to be
constructed if the LUC regulations were strictly enforced. [CF. at 893-94].
However, the District Court’s and the Board’s focus on the inability of the State
Land Board and StreetMedia to generate revenue from this particular Billboard as a
30
peculiar or undue hardship focuses on the wrong issue. The plain language of the
criterion provides: “There are extraordinary or exceptional conditions on the site
which would result in a peculiar or undue hardship on the property owner if Section
10 of this Code is strictly enforced.” [See LUC § 22.2.5.B, CF. 471]. As such, the
issue is whether there is a specific impact from the conditions of the property
rendering application of LUC Section 10 inappropriate. Critically, County Staff
evaluated this criterion and concluded strict enforcement of the sign code did not
result in the inability to have additional signs on the property, reasoning:
No sign permits have previously issued for a freestanding sign on the
property. There have been five permits issued for wall signs which
cumulatively are well under the overall sign allotment for the property.
If Section 10 of the Land Use Code is strictly enforced, the owners of
businesses located on the property would have the ability to obtain
permits for a freestanding sign along the property’s Harmony Road
frontage, a freestanding sign along the property’s I-25 frontage, and
permits could be obtained for additional wall signage. Each of the two
freestanding signs could be 18 feet tall with two 90-square foot sign
faces.
[CF. 168]. Nothing in the Record and no findings of the Board offer anything
contrary to these specific findings of County Staff. Again, the issue was the sign
code precluding the proposed Billboard not all signs. The District Court’s failure to
appreciate this distinction in its application of the second criterion constitutes error.
31
Further, the District Court erred by failing to recognize the Board’s
application of LUC Section 22.2.5.B requires the Board to find “extraordinary or
exceptional conditions” on the site resulting in a “peculiar or undue hardship” on the
property owner. No discussion whatsoever of these components appears in the
Board’s Findings and Resolution. [CF. 467-68]. No reasonable question exists the
words “extraordinary,” “exceptional,” “peculiar”, and “undue” are words limiting
the applicability of this criterion. Under the criterion, it is not every impact on the
property owner that justifies not applying the LUC sign code. The words of degree
and limit in the second criterion require the Board to engage in a comparative
analysis. It only qualifies as an undue hardship if the State Land Board as property
owner not contracting with StreetMedia is quantitatively and qualitatively worse
than its other options. Here, the Board never considered the impact on the State
Land Board at all, let alone on a comparative analytical basis. The District Court’s
failure to require the Board to actually apply the second criterion as written
represents error.
Third, the District Court improperly concluded the Board’s application of the
third criterion was proper. LUC Section 22.2.5.C requires the Board to analyze
whether the appeal would result in an economic or marketing advantage over other
businesses with signs in compliance with the LUC. [See LUC § 22.2.5.C, CF. 471].
32
The Board’s Findings and Resolution addressed this issue in the following single
sentence:
The 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.
[CF. 468]. Again, the Board’s Findings and Resolution fail to engage in the required
comparative analysis. This criterion requires a comparison between the relative
advantage and competitiveness of the proposed Billboard with the signs of other
businesses complying with the LUC. Nothing in the Board’s Findings and
Resolution engages in any comparison at all. Instead, the Board asserts in
conclusory fashion the Billboard would not result in an unfair business advantage
because it would permit non-profits and small businesses to advertise on the
Billboard. This formulation is not only a non-sequitur, but it also simply ignores the
comparative approach the criterion requires. In contrast, when County Staff
evaluated the issue they concluded:
Approval of the appeal would provide an economic and marketing
advantage over businesses that comply with Section 10 of the Land Use
Code by allowing the following: increased sign height, increased sign
and copy size, presence of electronic message display, reduced copy
hold time, and placement within an area where off-premises signs are
otherwise prohibited.
33
[CF. 168]. The Board never address the actual criterion or provides anything
contrary to County Staff’s determination. The District Court’s failure to require the
Board to apply the actual criterion represents 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
C.A.R. 28(k) Standard of Review and Preservation of Issue: This issue was
raised in the City’s Complaint, Opening Brief, and Reply Brief. [CF. 15-19, 685-
87 & 813]. This Court’s review of the District Court’s decision is de novo.
Whitelaw, 405 P.3d at 437; Alward, 148 P.3d at 428. Under C.R.C.P. 106(a)(4), a
reviewing court considers whether the decision under review is reasonably supported
by any competent evidence in the record. Yakutat Land Corp. v. Langer, 465 P.3d
65, 70 (Colo. 2020). No competent evidence exists when “the ultimate decision of
the [lower] body is so devoid of evidentiary support that it can only be explained as
an arbitrary and capricious exercise of authority.” Van Sickle, 797 P.2d at 1272;
Ross v. Fire & Police Pension Ass’n, 713 P.2d 1304, 1309 (Colo. 1986). “Thus,
we will reverse the Board’s decision if we determine that it erroneously interpreted
the law or made a decision that is unsupported by the record.” Hajek v. Bd. of Cty.
Comm’rs for Boulder Cty., 461 P.3d 665, 668 (Colo. 2020).
34
The District Court’s Order:
The District Court found competent evidence supported the Board’s decision
to approve the Billboard appeal under the three criteria of LUC Section 22.2.5. [CF.
890-96].
The District Court Erred:
The Board’s findings in its Findings and Resolution are not all supported by
competent evidence in the Record. First, respecting both the second and third
criterion, the Board’s Findings and Resolution references a recent economic
downturn and its perceived hardship on small businesses and non-profit
organizations and suggests the Billboard will be economically beneficial to those
entities. [CF. 467-68]. The genesis of this finding is based on statements made by
two Commissioners explaining their votes at the conclusion of the hearing before
the Board. [CF. 419-424 & 426-28]. While the perspectives of these two
Commissioners are legitimate, there was no competent evidence in the Record
supporting their statements. No data was presented to the Board on any economic
downturn or how the Billboard would assist any business or non-profit in Larimer
County to mitigate those impacts. Despite this, the District Court concluded there
was evidence in the Record to support the Board’s findings. [CF. 895-96]. The
District Court also cites no such evidence specifically and instead relies on the
35
Board’s assertion. Absent specific, competent evidence in the Record, which does
not exist, the Board’s finding on this criterion is ungrounded by evidence and
therefore unsupported.
Similarly, respecting the third criterion, 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. Absent such evidence, it
is simply impossible to meet the third criterion. The District Court’s reasoning on
this issue is perplexing. The District Court concluded:
The Court finds that there was evidence in the record to support
the Board’s findings under this section. Although the Court agrees with
the City that the reasoning provided by the Board about the economic
downturn and giving small businesses a chance to compete do not
directly apply to the requirements of section C, 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 business 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. 895-96]. The District Court’s statements in the above analysis are not actually
supported by evidence in the Record. Initially, the issue under LUC Section
22.2.5.C, as discussed above, requires a comparative analysis of the relative
economic impact on businesses complying and those not complying with the sign
36
code. The District Court’s reliance on StreetMedia’s evidence the Billboard would
not be too prominent does not offer evidence on this actual issue. No data at all
about competitive advantage and disadvantage was presented to the Board. Further,
the notion small businesses might have the opportunity to advertise on the Billboard
and gain additional customers is supported by nothing more than the statements from
the two Commissioners and not by any actual, competent evidence in the Record.
In conclusion, the City asks this Court to consider the detailed and thorough
interpretation and application of the three relevant criteria provided by the County
Staff in comparison to the Findings and Resolution of the Board. The County Staff’s
analysis was comprehensive and based on the actual language of the LUC and the
evidence in the Record. While the Board is allowed to review and disagree with
County Staff on this type of appeal, for the Board to do so, its decision must be
grounded in the correct criteria and supported by competent Record evidence. Here,
the Board’s decision was unsupported by either. The District Court erred in failing
to require the Board to actually follow and apply the LUC sign code and make its
decision based on specific and identifiable competent evidence.
V. CONCLUSION
In conclusion, for the foregoing reasons, Plaintiff-Appellant the City of Fort
Collins, Colorado respectfully requests this Court reverse the District Court, find and
37
declare the Board of County Commissioners of Larimer County, Colorado exceeded
its jurisdiction and abused its discretion in its Findings and Resolution approving the
proposed Billboard, find and declare the Board’s Findings and Resolution approving
the proposed 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 16th day of August, 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
38
CERTIFICATE OF E-FILING AND SERVICE
I hereby certify that on the 16th day of August, 2021, I E-Filed the foregoing
with the Clerk of the Court via Colorado Courts 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